OlDntfll Ham i>rlinnl ICtbrary iHaraljaU lExiititii (EoUcrtton (Sift of S. 31. iMaral)aU, iC.IG. 1. 1334 CORNELL UNIVERSITY LIBRARY 3 1924 085 504 508 The original of this bool< is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924085504508 t EQUITY PRACTICE STATE AND FEDERAL WITH STATUTES RULES FORMS AND PRECEDENTS By ROBERT TREAT WHITEHOUSE Formerly United States Attorney for the District of Maine IN THREE VOLUMES VOLUME II CHICAGO CALLAGHAN AND COMPANY 1915 COPYEIGHT, 1915, ET Robert Treat Whitehouse TABLE OF CONTENTS VOLUME II CHAPTEE XXX ALABAMA Statutes 536. State may bring suit in chancery 892 537. How' persons of unsound mind may sue 892 538. Joint demand may be prosecuted against one defendant 892 539. Suits — HoW: commenced 892 540. Limitation 893 541. Filing of bill commencement of suit 893 542. In what district filed. ..;... 893 543. Frame of bill 893 544. Multifariousness 893 545. Waiver of oath to answer 894 546. Issue of summons 894 547. Service of summons 894 548. Summons executed in another county returned by mail 894 549. Mailed within five days 894 550. How parties of unsound mind may be made defendants 894 551. Defendant entitled to copy of bill 895 552. Summons as to non-residents 895 553. Publication as to non-residents 895 554. Fee for publication deposited with register 895 555. Publication and proceedings against defendants whose names are unknown 895 556. Time for answer— Decree pro confesso 896 557. When answer compelled by attachment 896 558. Arrest under attachment — Discharge on bond 896 559. Suit on attachment bond 896 560. Defendant imprisoned until he files answer or bond ' 897 561. Oath to answer — By whom administered 897 562. Protection from full answer 897 563. Application to answer specially. .' 897 564. AU defenses may be set up in answer 897 565. Effect of answer on hearing on bill and answer 897 566. Eule requiring two witnesses to overcome sworn answer modified 898 567. Answer may be made cross-bill 898 568. Answer to such matter 898 569. Eevivor of suit by defendant 898 570. General and special demurrers 899 571. No replication 899 572. Dismissal of suit in vacation. 899 573. Amendments before answer 899 574. Amendments after service' and before answer 899 575. Amendments before decree, on terms 900 576. Eegister may allow amendments after answer. . .-. , , 900 577. Answer to amendment 900 578. What objections set for separate hearing 901 579. Decree, when objection for want of parties first taken at hearing 901 iii iv EQUITY PRACTICE ALABAMA (Stat.— cont.) § 580. Exceptions to ansvTcrs 901 § 581. Notices — When served on solicitors 901 § 582. Notice to parties in default 901 § 583. Defendant may examine complainant 901 § 584. Complainant may examine defendant 902 § 585. Copy of interrogatories to be served 902 § 586. Exceptions to such interrogatories 902 § 587. Answers to such interrogatories evidence 903 § 588. Oral examination of witnesses.,. , 903 § 589. Notice of oral examination 903 § 590. Testimony by interrogatories 903 § 591. Eules as to competency same as at law 903 I 592. Testimony, when taken 903 § 593. Proof of exhibits proved before register 903 § 594. When testimony may be retaken 903 § 595. Commissions to take testimony 904 § 596. Service of interrogatories 904 § 597. If adverse party a non-resident 904 § 598. Rebutting interrogatories 904 § 599. Eegister may act as commissioner, unless objected to 904 § 600. Power to issue subpoenas — Examination of witnesses 905 § 601. Subpoenas executed by sheriff or constable — Proof of default. . 905 § 602. Compensation of witness 905 % 603. Fees for taking depositions 905 § 604. Default of witness — Penalty 905 § 605. Defaulting witness may be committed, without bail, until he consents to testify 906 § 606. Proceedings before the register on reference 906 § 607. Notice of the day of hearing — Proceedings thereon 906 § 608. Authority of the register on reference 906 § 609. Evidence in cause used before register 907 § 610. Exceptions to register 's decisions 907 § 611. Decrees pro conf esso 907 § 612. On such decrees allegations of bill taken as admitted — Exceptions 907 § 613: Decree after decree pro eonfesso is taken in term time or vacation 908 § 614. Not heard on day of taking decree 908 § 615. Defendant may contest decree on merits, or appear on reference 908 § 616. Decree set aside on full answer 908 § 617. When set aside as against defendant on publication 909 § 618. Answer after publication of testimony 909 § 619. Decree without personal service not absolute for twelve months — Copy sent defendant 909 § 620. Petition to set aside decree and defend on merits 909 § 621. When testimony on file used by either party 910 § 622. When decree becomes conclusive 920 § 623. To whom preceding section not applicable gjO § 624. Rights and liabilities of parties without service extend to representatives 920 § 625. Execution of decrees on bills taken pro eonfesso without service 910 § 626. Suspension of decree on presenting a bill of review 912 § 627. Application to file such bills — When made ' gjj § 628. Writ of ne exeat — Equitable attachment [ 912 § 629. Chancellors may examine answers in such cases in vacation. . . . 912 § 630. Attachments on legal demands to subject equitable effects!!!! 912 § 631. Attachments may issue before judgment for debt 922 § 632. Property to be specified 922 § 633. Replevy of property attached 9]o § 634. Replevy bond to be returned 922 § 635. Lien on such attachments 923 § 6.36. If property not delivered, execution issues on replevy bond. . . . 913 § 637. Writs of ne exeat and attachment— Orders in respect to 913 CONTENTS OF VOLUME II v ALABAMA (Stat.— cont.) § 638. Equitable attachment for benefit of surety in written contract. . 913 § 639. "When such attachments may be dissolved 913 § 640. Decree in favor of surety 914 § 641. Creditor may intervene 914 § 642. Garnishments may issue 914 § 643. Writs of seizure in aid of suit commenced in chancery 914 § 644. Affidavit to be made by plaintiff 914 § 645. Property restored on giving bond 915 § 646. When property delivered to plaintiff 915 § 647. Return of writs and bonds '. 915 § 648. Decree when plaintiff sustains his claim 915 § 649. Liability of plaintiff and his sureties 915 § 650. Trial of issues of fact 916 § 651. Evidence in such trials — Parties examined 916 § 652. Proceedings to summon jury, etc., before chancellor 916 § 653. Pay of jurors and how taxed 916 § 654. Practice in partition suits when title or adverse claim involved. 916 § 655. Call of docket — Setting causes for hearing 917 § 656. Decrees in writing — Eendered in term time or vacation 917 § 657. Cause may be referred to arbitration 917 § 658. Orders and decrees by consent 917 § 659. Liens and priority of decrees 918 § 660. Decrees for conveyances and releases operate as such — Executed by commissioner 918 § 661. Decrees — How rendered 918 § 662. Decrees enforced by attachment or sequestration 918 § 663. Decree for performance of some act to prescribe time 919 § 664. Attachment on affidavit of failure to perform 919 § 665. If attachment not executed, sequestration follows 919 § 666. Decrees — How enforced 919 § 667. Eeturn day of such process 919 § 668. Execution on decrees for enforcement of liens 919 § 669. Decree on partition 920 § 670. Sheriff liable for failure to collect money 920 § 671. Costs at discretion of chancellor 920 § 672. Sales to be made by register 920 § 673. Forthcoming bond 920 § 674. Effect of forfeiture. . . ._ 921 § 675. Protection of tenant having crop planted on lands decreed to be sold 921 § 676. Eules of practice adopted by supreme court 921 § 677. Chancellors may adopt rules to facilitate business 922 § 678. By whom granted 922 § 679. Issuing injunction, by registers 922 § 680. Injunction of judgment a release of errors 922 § 681. Bond on injunction of judgment. 922 § 682. Bond on injunction after recovery of lands 922 § 683. Bond on injunction in other oases 923 § 684. Notice of injunction to stay a judgment served on the attorney is valid 923 § 685. Application for injunction refused — How renewed — When refusal final 923 § 686. Application to justice of supreme court 923 % 687. Refusal to grant injunction indorsed on bill 923 § 688. On dissolution of injunction, damages granted for delay 924 § 689. Effect of bond on dissolution of injunction of a judgment — Execution 924 § 690. Execution for costs 924 § 691. If injunction of judgment is dissolved pending suit, refunding bond required 924 § 692. Motion to dissolve or discharge in vacation 924 I 693. Order for injunction made before bill filed, valid 925 § 693a. Setting time . and place for hearing application 925 vi EQUITY PRACTICE ALABAMA (Stat.— cont.) § 694. Evidence or testimony admissible upon hearing 925 § 695. Fiat indorsed upon bill 925 § 696. Appeal from order granting or refusing writ 925 § 697. Motion to dissolve injunction 926 § 698. Eestraining order 926 § 699. Eenewing application to judge of supreme court 926 § 700. Evidence upon hearing of motion to dissolve 926 § 701. Bond for reinstatement of injunction 926 § 702. Eeceivers appointed by chancellor or register 927 § 703. Appointment by register — Suspension of order 927 § 704. Complainant must give bond before appointment of receiver. . 927 § 705. Any person damaged may sue on bond 927 § 706. Receiver may be sued without leave of court 928 § 707. Service of process on receivers 928 § 708. Appeals to supreme court on all final judgments 928 § 709. Appeals from certain interlocutory decrees 928 § 710. Appeal on orders sustaining, dissolving, or discharging injunctions 929 § 711. Appeal from order appointing or refusing receiver 929 § 712. Appeals from partial settlements 929 § 713. Supersedeas bond 930 § 714. Supersedeas bond when judgment or decree for payment of money, and for other acts 930 § 715. Supersedeas bond in other cases 931 § 716. Limitation of appeals 931 § 717. Unknown parties — Notice — Shares paid into court 931 § 718. Jurisdiction of chancery court to divide or sell for division. . . . 932 § 719. Controverted title and all equities disposed of 932 § 720. Partition without commissioners — Owelty 932 § 721. Person in possession of and claiming lands may file bill to clear title 933 § 722. Contents of bill 933 § 723. Contents of answer 933 § 724. Jury trial on demand — Decree 933 § 725. Eecording and registering decree in probate office 934 § 726. Decree when defendant fails to answer, or disclaims interest — Costs 934 § 727. When state may maintain suit 934 § 728. Powers — Notice — Jury trial 935 EULES OF COTJKT § 729. Court always open for certain purposes — Notice of hearing appeals from register 935 § 730. Powers of register in vacation — Appeal to chancellor, how certified 936 § 731. Eegister keeps book — Solicitor draws up application, which is transcribed with indorsement 936 § 732. When register grants orders 936 § 733. Notice, when necessary 937 § 734. The register being interested, special register acts 937 § 735. Eules of English chancery 937 § 736. Stating part, divided and numbered 937 § 737. Interrogatories, divided and numbered 937 § 738. Containing blanks, defective 938 § 739. Complainant prescribes matters to be answered by note 938 § 740. Foot-note specifying matters to be answered, part of bill 938 § 741. Form of interrogating part 933 § 742. Bill, etc., how signed 938 § 743. Bills, how sworn to 939 i 744. Exhibits part of bill, and admissions of them dispenses with proof 939 § 745. Prayer, requisites of 939 CONTENTS OF VOLUME II vii ALABAMA (Eules — eont.) § 746. Non-resident or insolvent parties may be dispensed with 930 § 747. When parties are numerous, court may proceed, having before it parties to represent adverse interests 939 § 748. Infants, how served 940 § 749. Corporations — Service on 940 § 750. Service of non-residents 940 § 751. Appointment of guardian ad litem, and affidavit of infancy. . . . 941 § 752. Attachment against defendant failing to answer 942 § 753. Sequestration against defendant evading attachment 942 § 754. Alias and pluries process without order 942 § 755. Bill dismissed for neglect to bring in defendant 942 § 756. Dismissal, when equivalent to dismissal on merits 942 § 757. Certificate requisite to decree pro eonfesso 943 § 758. Demurrer being overruled, answer filed, or decree pro eonfesso, or attachment 943 § 759. Commission to take non-resident's answer 943 § 760. Injunction dissolved on answer only when sworn to 944 § 761. Defendant failing to answer not in contempt, uiitil his exceptions are decided 944 § 762. If oath waived, no exception to answer for insufficiency 944 § 763. Proceedings on exceptions to bill or answer 944 § 764. Proceedings, if exceptions for insufficiency to answer allowed. . 944 § 765. If exceptions for scandal or impertinence allowed 945 § 766. Exceptions — Time of hearing 945 § 767. Amendments — Mode of making. . .' 945 § 768. Amendments to bill and answer — Notice 945 § 769. Amendments after demurrer and argument thereof 946 § 770. After answer, order to amend bill generally not allowed 946 § 771. Amendments of bills considered as introduced from allowance 946 § 772. Notice of the allowance of amendments, how given 946 § 773. Supplemental matter introduced by way of amendment 947 § 774. Decree pro eonfesso not set aside by amendment, and efi:ect of decree pro eonfesso on amendment 947 § 775. Submission of cause; time of filing amendment when dismissed in vacation 947 § 776. Decree pro eonfesso after thirty days 947 § 777. Testimony taken after cause is at issue 947 § 778. Interrogatories filed and copies served 948 § 779. Party desiring to be present gives notice 948 § 780. Ke-examination 948 § 781. — By parties filing cross-interrogatories 948 § 782. Examinations de bene esse 948 § 783. — Further examination 949 § 784. Testimony in interpleader 949 § 785. Mode of impeaching testimony 949 § 786. Notice acconjpanies interrogatories — Objection to commis- sioner 950 § 787. Chancellors appoint examiners — Qualification and duty 950 § 788. Names and residences of witnesses given 950 § 789. No interrogatories or notice to party in contempt — Waiver of notice 951 § 790. Inclosure and direction of depositions — Publication — After pub- lication testimony not taken without consent or order 951 § 791. Eegister 's duty on publication of testimony 951 § 792. Proof of exhibits and documents .' 951 § 793. Rules for taking the oral examination of witnesses in chancery cases 952 § 794. Docket — What it must contain — Filed with papers 954 § 795. Caption of minutes — Form of 954 § 796. Special or extra terms — Proceedings in reference to 955 § 797. Hearing — Failure of parties to appear — Setting aside default. . 955 § 798. Continuance 955 § 799. No continuance without disposition of the question of equity. . . 955 viii EQUITY PRACTICE ALABAMA (Bulbs — cont.) § 800. Demurrers and pleas — ^When filed 956 § 801. Exceptions and demurrer — When heard 956 § 802. Pleas, demurrers, or motions to dismiss for want of equity, may be heard in vacation 956 § 804. Proceedings on hearing 957 § 805. ilemorandum of testimony entered and copy filed 957 § 806. Submission iit call for motions , 957 § 807. Decrees in vacation — Proceedings and process on 957 § 808. Contents to orders and decrees entered in vacation 958 § 809. Decrees in term time — Chancellor's reasons, transcript 958 § 810. Eehearing 958 § 811. Orders, and opening of them 959 § 812. Questioning final decree after adjournment 959 § 813. Transcript on appeal 959 § 814. Appeal — In whose name taken 959 § 815. Appeal bond for restoration of injunction — Ne exeat or writ of seizure 959 § 816. Sessions of register, place of 960 § 817. Testimony, how taken '. 960 § 818. Accounts before register, form of 960 § 819. Accounting before register 961 § 820. Notice of taking account 961 § 821. Objections to report, exceptions heard by chancellor 961 § 822. Exceptions, how taken 961 § &23. Eeport, confirmation of — Exceptions to 962 § 824. Motions every morning 962 § 825. Motions to dissolve injunctions — Hearing of 962 § 826. Notice of motions 963 § 827. "Where exceptions to answer overruled, chancellor may dissolve injunction 963 § 828. Defendant not brought in before second term, injunction dis- solved ' 963 § 829. Applications to reinstate injunctions — Appeals 963 § 831. Revivor upon death, marriage, or expiration of office 964 § 832. Supplemental bills and bills of revivor — Becitals and contents of 965 § 833. Proceedings and practice in relation to 965 § 834. Publication; order of 966 § 835. Costs in cases of abatement 966 § 836. Allegation as to subsequent incumbrancers — Decree as to sale and proceeds 967 § 837. Proceedings when subsequent incumbrancers discovered before confirmation of sale 967 § 838. Costs, decree as to 967 § 839. Proceedings, if execution for costs returned "no property". ... 967 § 840. One receiver for same property, though more than one suit. . . . 968 § 841. Order, where there is one receiver and two or more suits 968 § 842. Suit at law and in chancery for same claim 968 § 843. Sales of personal property 969 § 844. Necessary papers laid before chancellor on motions and appeals 969 § 845. Notice, length of 969 § 846. Notice, upon whom served 969 § 847. Computation of time 970 CHAPTER XXXI DELAWARE Statutes 848. General powers of Chancellor qj-^ 849. Powers of Chancellor in vacation 971 850. Powers at chambers 972 CONTENTS OF VOLUME II ix DELAWARE (Stat.— con t.) § 851. Process 972 § 852. Subpoenas — When and where returnable 972 § 853. Appearance day 973 § 854. Piling of answer 973 § 855. Eules of pleading — Dismissal — Decrees pro conf esso 973 § 856. Sequestration 974 § 857. Order for appearance — Notice — Pro confesso decree — Sequestra- tion 971 § 858. Compulsory appearance 975 § 859. Service on absent persons, heirs, etc 975 S 860. — Decree to stand absolute in absence of appearance 975 § 861. — Limitation of right to rehearing 976 § 862. — Decree to stand absolute unless reheard in due time 976 § 863. — Proof of absence and previous residence 976 § 864. Sale of land to enforce decrees 977 § 865. Power of Chancellor to make rules 977 § 866. Reference by consent 978 § 867. Refusal or neglect of referee to act — Fine 978 § 868. Oath of referee 978 § 869. Award or report of referee — Review on appeal 978 § 870. Decree on award 978 § 871. Authority to appoint 979 § 872. Rules — Compensation 979 § 873. Receivers of corporations vested with title to property 979 § 874. Receivers to file certified copy of their appointment and quali- fications within twenty days 980 § 875. Receivers appointed pendente lite excepted 980 § 876. Original papers may be sent upon appeal 980 § 877. Disqualification of Chancellor 980 I 878. Recording— Evidence 980 Rules of Couet § 897. Requisites to admission 981 § 898. Oath or affirmation 981 § 899. Not to be taken as security 981 § 900. Solicitors admitted in other states — Admission ad litem 981 § 901. Powers at chambers or in vacation 982 § 902. Application at chambers — How made 982 § 903. Orders at chambers — Service of copy 982 § 904. Issued only on bill or petition 983 § 905. When returnable 983 § 906. Service 983 S 907. — On infants 983 § 908. — On corporations 983 § 909. Absent or concealed defendants — Order for appearance 983 § 910. Attachment or failure to appear 984 § 911. — On non-appearance of mfirried woman 984 § 912. Appearance of infant — How made 984 § 913. Appointment of guardian ad litem 984 § 914. Decree pro confesso on non-appfearance of corporation 985 § 915. Necessity for appearance of party against whom no relief is sought — Costs 985 § 916. How addressed — Signature of solicitor — Injunction 986 § 917. Averments — Numbering paragraphs — Prayer — Non-demurrable omissions 986 § 91 8. Interrogatories , 986 § 919. — When may be omitted 987 § 920. Cross bills for discovery or production of documents unneces- sary 987 § 921. Rule to plead — Amendment — Extension of rule 988 § 922. Answer — How entitled — Paragraphing — Response to interroga- tories — Exceptions to bill — Oath 988 X EQUITY PRACTICE DELAWAEE (Eules— eont.) § 923. Notice on filing — Service of copy of answer 988 § 924. Exceptions — Filing — Notice on allowance — Further answer... 989 § 925. Proceedings in absence or on disallowance of exceptions 989 § 926. Motion for decree notwithstanding answer 989 § 927. Demurrer — Eequisites — ^Service — Time for hearing 991 § 928. Plea — Eequisites — Service — Taken as true in absence of replica- tion 991 § 929. When decree taken pro confesso — Procedure 991 § 930. Eule to answer to defendant not found on attachment to appear 992 § 931. Non-resident or absconding defendants 992 § 932. Service of copy of decree before process in execution in certain cases 992 § 933. Commissions — Issuance 992 § 934. Exceptions to interrogatories — Filing 993 § 935. Depositions — Taking and return 993 § 936. Eeturn of commission — Publication — Exceptions 993 § 937. Order for taking testimony on oral examination — Notice 994 § 938. Oral examination — How made 994 § 939. — Objection to testimony 995 § 940. — Impeaching evidence — Adjournments 995 § 941. — Eeturn and filing — Exceptions 996 § 942. Special order for examination of witness — Taking in open court 996 § 943. Examination of parties 997 § 944. Examination de bene esse 997 § 945. Neglect or refusal to appear or testify — Attachment 997 § 946. Proof of 998 § 947. Filing and service of list of exhibits 998 § 948. Devolution of interest or liability by operation of law 998 § 949. — Executors or administrators — How made parties 999 § 950. Insane parties — Trustee or guardian ad litem as party 999 § 951. When cause deemed ready for hearing — When commission to take testimony not to issue 999 § 952. Printed list of causes — Delivery to solicitors 1000 § 953. Enrolling and signing on record 1000 § 954. Interlocutory orders — Eeeitals — Eecord 1000 § 955. When may be prayed and entered — Persons under disability... 1000 § 956. Stay of proceedings — Security 1001 § 957. Sending up original papers in cause 1001 § 958. Preliminary injunction — Special praver necessary 1001 § 959. Applications — Motions to dissolve — When may be made 1001 § 960. Answer under oath to dissolve preliminary injunction 1001 § 961. Motions to dissolve — Testimony 1002 § 962. Order for injunction — Expiration 1002 § 981. Infancy of party not ground for demurrer or delay 1003 § 982. Security for costs by complainant 1003 § 983. Oaths or affirmations — How adminiftered 1003 § 984. Order or statute for deposit in court — How complied with 1003 § 985. Eules and orders — Necessity for service 1003 S 986. Notices — Eequisites — Service 1003 § 987. Stipulations — Eequisites 1004 § 988. Papers on file not to be taken from register 's office 1004 § 989. Pleadings and papers filed to be engrossed — Erasures, etc 1004 § 990. Provisions as to answers under oath 1004 § 991. Sales on partition — Judgment bond — Payment of purchase money ' io04 § 992. Order to show cause 1005 § 993. Eeceivers pendente lite 1005 § 994. Bond ',[]['. ^looe § 995. Eesidence of receiver 1007 § 996. Failure to give bond 1007 § 997. Filing inventory — List of debtors and creditors — Stockholders. 1007 S 998. Eeport 1007 § 999. Notice to creditors 1007 CONTENTS OF VOLUME II xi DELAWAEE (Eules — cont.) § 1000. Claims — Filing and requisites 1008 § 1001. — Exceptions 1008 § 1002. Accounts— Eequisites 1008 § 1003. Compensation for services and expenses. , 1009 § 1004. — Notice of filing of account 1009 § 1005. — Exceptions to account 1009 § 1006. — Allowance— Order of distribution— Report 1009 § 1007. Discharge of receiver 1010 § 1008. Hearing on exceptions to claims and accounts 1010 § 1009. Failure to make or file accounts or reports 1010 ~ § 1010. Deposit of moneys 1010 § 1011. Withdrawal of original instruments filed by claimants 1010 § 1012. Notice of sales 1011 CHAPTER XXXII FLORIDA Statutes I 1013. Action to be as effective as in term 1012 § 1014. Provisions at law to govern 1012 § 1015. Locality in applications for receivers when property in more than one judicial circuit 1012 § 1016. Where suits may be begun 1013 § 1017. Suits against defendants residing in different counties or districts 1013 I 1018. Suits against corporations 1013 1 1019. When to issue 1013 I 1020. When returnable 1014 § 1021. Form of 1014 1 1022. Personal service 1014 i 1023. Constructive service 1015 § 1024. Amendment of 1016 § 1025. In cases of foreclosure 1016 § 1026. Insufiicient answers and proceedings thereon 1016 I 1027. May be pleaded together, and with answer 1017 § 1028. May be incorporated in the answer 1017 I 1029. Complainant 's dealing with 1017 I 1030. Effect of overruling 1017 I 1031. Replications— When to be filed 1017 I 1032. Special replications to answer not allowed 1018 § 1033. Failure to reply to, or set down pleas or demurrer 1018 I 1034. What practice to prevail 1018 I 1035. Service of notices 1018 I 1036. Taken before issue 1018 5 1037. Taken after issue 1019 j 1038. Appointment of 1019 5 1039. Oath of 1019 1 1040. General duties and powers of 1019 ! 1041. Process of 1020 ) 1042. Bond of 1020 ] 1043. Presentation of matter to 1020 5 1044. Time and place of hearing 1020 J 1045. Speeding the proceedings 1021 ) 1046. Regulation of proceedings before 1021 i 1047. Evidence permissible before 1021 ] 1048. Evidence before, to be in writing 1021 j 1049. Fees of witnesses before 1021 j 1050. Report of masters in chancery 1022 i 1051. Special masters in chancery 1022 xii EQUITY PRACTICE FLORIDA (Stat.— cont.) § 1052. When may be entered 1022 § 1053. Prerequisites to enter upon constructive service 1023 § 1054. Setting aside final decree upon decree pro conf esso 1023 § 1055. Proceedings in lieu of decree pro conf esso 1023 § 1056. Signing and recording of 1024 § 1057. Execution of money decrees 1024 § 1058. Effect of a decree for conveyance 1024 § 1059. Form and contents of 1024 § 1060. Presentation of, as a supersedeas 1025 § 1061. Granting of rehearing as a supersedeas 1025 § 1062. Matters of right 1025 § 1063. Limitation of time 1025 § 1064. From interlocutory decrees 1025 § 1065. Appeal as a supersedeas 1026 § 1066. Supersedeas on appeals from decrees, etc., relating to adminis- trators 1026 § 1067. Notice of entry of appeals 1027 § 1068. Application to appeals in chancery, of certain provisions relat- ing to writs of error 1027 § 1069. Injunction to issue only after bill filed 1027 § 1070. Injunctions to stay proceedings at law 1028 § 1071., Injunction without bond 1028 § 1072. Evidence upon application for, or to dissolve injunctions 1028 § 1073. Motion to dissolve injunction ' 1029 § 1074. Against levy of execution issued against another than the com- plainant 1029 § 1075. Against destruction of timber 1029 § 1076. Injunction against remo%'al of mortgaged personal property. . .1029 § 1077. When to issue 1030 § 1078. Chancellor to fix penalty of bond 1030 § 1079. Absence of defendant permitted 1030 § 1080. Surrender of defendant by bail 1030 § 1081. Proceedings prescribed 1031 § 1082. In counties where rendered 1032 § 1083. In other counties 1032 § 1084. Process by publication 1032 § 1085. Order and publication 1033 § 1086. Decree pro confesso 1033 § 1087. Eehearing 1034 § 1088. Service by process on non-residents in suits for specific per- formance of contracts to convey 1034 § 1089. To be by bill in chancery 1035 § 1090. Locality of action 1035 § 1091. Parties to the suit 1035 § 1092. Form and contents of the bill 1035 § 1093. Decree of partition 1036 § 1094. Commissioners to make partition 1036 § 1095. Sale of non-divisible real estate 1037 § 1096. Costs of partition and taxes 1038 § 1097. Provisions of law applicable to 103S § 1098. Quieting title, removing clouds 1038 § 1099. Creditors' bills 1039 EULES OF COUET § 1100. Docket — Call — Dismissal and reinstatement of causes 1039 § 1101. Proceedings in vacation — Clerk 's oflSce 1040 § 1102. Order book — Entries — Notice of filing of papers 1040 § 1103. Motions and applications — Powers of clerk 1041 § 1104. Motions — Time of making — Notice 1041 § 1105. Mesne process 1041 § 1106. Final process — Enforcement of decree 1042 § 1107. Writ of assistance 1042 CONTENTS OF VOLUME II xiii FLOEIDA (EULES— cont.) § 1108. Enforcement of order in favor of third person 1042 § 1109. Issuance of process — Time 1043 § 1109a. Subpoena — Issue — When returnable 1043 § 1110. Service of process — On whom made 1043 § 1111. Alias process 1043 § 1112. Service of process — By whom 1043 § 1113. Appearance — Time for 1044 § 1114. Entry of appearance 1044 § 1115. Introduction 1044 § 1116. Averments which may be omitted 1044 § 1117. Scandal and impertinence 1045 § 1118. Expunging scandalous and impertinent matter 1045 § 1119. Special interrogatories 1045 § 1120. Prayer for discovery , 1045 § 1121. Specifying interrogatories '. 1046 § 1122. Note specifying interrogatories as part of bill 1046 § 1123. General and special relief 1046 § 1124. Prayer for process , 1047 § 1125. Signature 1047 § 1126. Answer to crofs bill 1047 § 1127. Omitting parties defendant — "When allowed 1047 § 1128. Trustees as parties '. 1048 § 1129. Heirs as parties 1048 § 1130. Joinder of parties 1048 § 1131. Objection for want of parties ; . . . . 1048 § 1132. Saving rights of absent parties 1049 § 1133. When answer optional 1049 § 1134. Appointment — Suits by 1049 § 1135. Eevivor against representatives ". 1050 § 1136. Motion to revive by or against personal representative 1050 § 1137. Supplemental bills 1050 § 1138. Eepetition in supplemental bill , 1051 § 1139. Amendments — Costs — Service of copies 1051 § 1140. Amendment after answer, etc 1051 § 1141. Failure to file amendments 1052 § 1142. Answer — Time for filing — Effect of failure to file in time 1052 § 1143. Decree pro conf esse 1053 § 1144. Notice of motion for injunction 1053 § 1145. Eeceiver — Notice of application for — Inventory and account. . . .1053 § 1146. Demurrer — Certificate and affidavit to support 1054 § 1147. Demurrer or plea to part of bill 1054 § 1148. Setting down demurrer or plea for argument — Decision on issue of fact 1055 § 1149. Overruling demurrer plea — Eff'ect 1055 § 1150. Costs on demurrer — Amendments 1055 § 1151. Demurrer not coextensive with bill . 1055 § 1152. Answer extending to matter covered by demurrer 1056 § 1153. Failure of plaintiff to reply to plea or set down for argument. .1056 § 1 154. Costs where more than one answer filed 1056 § 1155. Answer — Contents 1056 § 1156. Eefusal to answer interrogatories 1057 § 1157. Supplemental answer 1057 § 1158. Verification of answer 1057 § 1159. Matters as to which allowed 1057 § 1160. Time for filing 1058 § 1161. Hearing on exceptions 1058 §]]62. Allowance of exceptions — Compelling better answer 1058 § n 63. Costs upon allowance or disallowance 1059 § 1164. Amendments after answer 1059 I 1165. Eeplication— Filing — Effect— Failure to file 1059 § 11 66. Common law rules 1 060 § 1167. Commission — Notice — Oral interrogatories 1060 § 1168. Taking deposition after cause at issue 1060 xiv EQUITY PRACTICE FLORIDA (EuLES— cont.) § 1169. Depositions after cause at issue — Time allowed — Publication . . 1060 § 1170. Statutory provision 1061 § 1171. Form 1061 § 1172. Appointment — Compensation 1061 § 1173. Decree for account of personal estate 1062 § 1174. Presenting referred matter to master 1062 § 1175. Reference — Time and place for hearing — Notice — Adjourn- ments 1062 § 1176. Proceedings — Examination of parties — Production of documents — Examination of witnesses 1063 § 1177. Taking testimony — Subpoena — Compelling attendance — Exam- ination viva voce 1063 S 1178. Accounts — Examination of parties 1064 § 1179. Use of affidavits, depositions and documents before master. . . .1064 § 1180. Examination of creditors 1064 § 1181. Report— Matters excluded 1064 § 1182. Piling report — Exceptions— Costs 1064 § 1183. Time for setting for hearing 1065 § 1184. Manner of setting down for hearing — Postponement — Failure to attend 1065 § 1185. Signing and recording — Correcting errors 1066 § 1186. Recitals in decree 1066 § 1187. Deficiency decree on foreclosure — Execution 1066 § 1188. Contents — Signature — Verification — Piling 1066 § 1190. Rules — Power of circuit courts to make and amend 1067 § 1191. Affirmation in lieu of oath 1067 § 1192. Transcripts 1067 § 1193. Copying papers into record — Duty of clerk 1067 § 1194. Appeal — Citation — Issue, service and return 1067 § 1195. Appeal — Assignment of errors — Cross assignments — Making up transcript 1068 § 1196. Evidence in record on appeal 1069 CHAPTER XXXIII ILLINOIS Statutes § 1197. Procedure controlled by this act and general chancery \isage. . . .1071 § 1198. Rules 1071 § 1199. Venue 1071 § 1200. Mode of beginning suit 1072 § 1201. Suits by infants — By conservators 1072 § 1202. Guardian ad litem 1072 § 1203. Unknown parties — Affidavit — Notice 1072 § 1204. Summons 1073 § 1205. — When returnable 1073 § 1206. Alias— Pluries 1073 § 1207. Service of summons — Continuance 1073 S 1208. Notice by publication — Affidavit — Mailing — Certificate 1074 § 1209. Period of publication — Default 1074 § 1210. Service on non-resident by copy of bill — Proof 1075 § 1211. Case continued for service 1075 § 1212. Pleading — Default — Bill confessed 1075 § 1213. Decree, when vacated at next term 1076 § 1214. Evidence on bill confessed — Final decree 1076 § 1215. Defendant not served may have decree vacated within three years 1076 § 1216. Waiver of oath — Answer '. 1077 § 1217. Answer under oath 1077 § 1218. Answer by private corporation 1077 CONTENTS OF VOLUME II xv ILLINOIS (Stat.— con t.) § 1219. Full answer required 1077 § 1220. Insufficient answer — Contempt 1078 § 1221. Discovery in answer not conclusive 1078 § 1222. Further interrogatories 1078 § 1223. Exceptions to answers 1078 § 1224. Replication 1078 § 1225. Hearing 1078 § 1226. Cross-bill 1079 § 1227. — Eecitals unnecessary — ^Process for new parties 1079 § 1228. — Pleading thereto 1079 § 1229. — Failure to answer 1079 § 1230. — New parties on 1079 § 1231. — When to be answered 1079 § 1232. No dismissal without consent after cross-bill filed 1080 § 1233. Time to plead — Amendments — Continuances thereon 1080 § 1234. Supplying lost files 1080 § 1235. Reference to master 1080 § 1236. Jury trial discretionary — Former chancery practice retained . . 1080 § 1237. Failure to appear or answer — Contempt 1081 § 1238. Enforcement of decree ' 1081 § 1239. Unknown parties 1081 § 1240. Lien of money decree 1081 § 1241. Lien of other decrees 1081 § 1242. Execution of deeds — Recording 1082 § 1243. Execution of process to enforce decree — Penalties 1082 § 1244. Terms of sale 1083 § 1245. Creditor's bill 1083 § 1246. Bills to quiet title 1083 § 1247. Exemptions preserved as at law 1084 § 1248. Amendments before judgment 1084 § 1249. Amendments after judgment 1084 § 1250. Formal error no ground for reversal 1084 § 1251. Returns amendable 1085 § 1252. Venire— Amendment 1085 § 1253. Omissions, variances, defects: not ground for arrest or reversal. 1085 § 1254. What defects amended — By what court .1086 § 1255. No amendment without order of court 1086 § 1256. Proceedings governed by this act 1087 § 1257. Writs of error, amendable 1087 § 1258. Oral examination — Preserving evidence : 1087 § 1259. Depositions of resident witnesses, in chancery 1087 § 1260. Of witness non-resident or more than one hundred miles distant — Soldier — Sailor — Dedimus '. 1088 § 1261. Notice by mailing or publication 1089 § 1262. Oral examination of non-resident witness 1089 § 1263. Further examination of witness 1090 § 1264. Witnesses before commissioners — Compelling attendance — Com- pelling answers 1090 § 1265. Fees of witnesses before commissioner 1091 § 1266. Petition — Affidavit — Dedimus 1091 § 1267. On chancery docket — Designation of parties 1092 § 1268. Several commissions may issue 1092 § 1269. Notice 1092 § 1270. Notice to parties who cannot be personally served 1093 § 1271. Court may order notice 1093 § 1272. Testimony, how taken, certified, returned and recorded 1093 § 1273. Deposition or copy as evidence — Limitation 1094 § 1274. Who may appoint— Residence ' 1094 § 1275. Term of office — Removal 1094 § 1276. Court to fill vacancy 1094 § 1277. Bond— Oath 1094 § 1278. Special master 1095 xvi EQUITY PRACTICE ILLINOIS (Stat.— cont.) § 1279. Powers of masters 1095 § 1280. — May grant writs of certiorari 1095 § 1281. Power of successor 1095 § 1282. Fees 1095 § 1283. To report money not paid out 1096 § 1284. What report shall contain — Receipts 1096 § 1285. Duty of court in relation to money 1097 § 1286. Eemoval from office 1097 § 1287. When writ may issue 1097 § 1288. In favor of co-obligors or co-debtors 1098 § 1289. What courts may issue 1098 § 1290. Master in chancery may order 1098 § 1291. Bill or petition necessary — Affidavit — Bond — Suit on 1098 § 1292. Vacation, clerk directed to issue 1099 § 1293. Eeturnable where , 1099 § 1294. Form of writ — Bond by defendant — Temporary departure no breach 1099 § 1295. Surrender of defendant by surety 1100 § 1296. Proceedings on return of writ 1100 ■ § 1297. Quashing or setting aside writ 1100 § 1298. Oral submission of controversy — Agreement — Hearing — Judg- ment — No appeal 1100 § 1299. In chancery — Dismissal of bill — Other eases discretionary 1102 § 1300. Transfer of suit where party misconceives remedy 1102 § 1301. Chancery — Death of part where suit does not survive 1102 § 1302. Who may grant 1103 § 1303. — When master may grant 1103 § 1304. Notice of application 1103 § 1305. To stay suit or judgment — Venue — Where served 1103 § 1306. Writ releases errors 1103 § 1307. Justice 's judgment — Not enjoined, when 1104 § 1308. Part of judgment enjoined 1104 §1309. Where judgment enjoined, bond — Damages on dissolution. .. .1104 § 1310. In other cases, what bond 1104 § 1311. In other cases, who may take bond 1104 § 1312. —Where filed 1105 § 1313. Dissolution — Suggestion of damages — Assessment — ESecution — Suit on bond 1105 § 1314. Violation of injunction — Proceedings in vacation 1105 § 1315. Dissolution or modification in vacation 1105 §1316. Motion to dissolve 1106 § 1317. — Evidence 1106 § 1318. — AfiBdavits 1106 § 1319. — Continuance for evidence to support bill 1106 § 1320. Motion to dissolve — Testimony to be by deposition — Exception. 1106 § 1321. Depositions competent at final hearing 1106 § 1322. Appeal, when supersedeas 1107 § 1323. — Further bonds 1107 § 1324. Injunction on Sunday 1107 § 1325. Appointment of receiver — Bond by party applying — When re- ceiver may be appointed without bond 1108 § 1326. Bond as substitute for appointment of receiver — Eemoval of re- ceiver upon giving bond 1108 § 1327. Suits against receivers without leave of court 1108 § 1328. Judgment in vacation — Eeviewable at next term 1109 § 1329. Judgment in vacation — Stipulation — Lien 1109 § 1 330. Powers in vacfition 1109 § 1331. Notice 1110 § 1331a. Between co-tenants — By bill or petition 1110 § 1332. Venue 1110 § 1333. Infants— Lunatics— Suits by 1110 § 1334. Such persons as defendants 1110 § 1335. Form and contents of petition 1110 CONTENTS OF VOLUME II xvii ILLINOIS (Stat.— cont.) § 1336. All persons interested should be made parties -. 1111 § 1337. Unknown owners — Contingent interests 1111 § 1338. Unknown owners — How described 1111 § 1339. Service as in chancery 1111 § 1340. Notice to unknown owners 1111 § 1341. Notice by publication and mail 1112 § 1342. Service by copy on non-residents 1112 § 1343. Answer under oath 1112 § 1344. Interpleader 1112 § 1345. Judgment must declare rights of parties 1112 § 1346. Appointment of commissioners 1112 § 1347. Oath of commissioners 1113 § 1348. Duty of commissioners — Mode of partition 1113 § 1349. Report of commissioners 1113 § 1350. Control and removal of commissioners 1113 § 1351. When land in several counties 1114 § 1352. Dower — Homestead may be set off 1114 § 1353. Shares together or in severalty 1114 § 1354. Mortgages — Attachments — liens — How affected 1114 § 1355. Person evicted by paramount title may have partition of residue. 1114 § 1356. When premises may be sold 1115 § 1357. No sale for less than two-thirds of valuation — Revaluation. . . .1115 § 1358. Terms of sale 1115 § 1359. Report of sale — Exceptions — Order 1115 § 1360. Conveyance — Made on confirmation — Effect 1116 § 1361. Division of proceeds ; 1116 § 1362. Sale of dower, homestead and other interests 1116 § 1363. Assent by court where persons incapable 1116 § 1364. Funds paid over or invested 1117 § 1365. When owner unknown 1117 § 1366. Deposit of unclaimed money in county treasury 1117 § 1367. Payment of money deposited on order of court 1117 § 1368. Amendments as in chancery 1117 § 1369. Powers of court 1117 § 1370. Costs and solicitor 's fees apportioned 1118 § 1371. Appeals— Writs of error HIS § 1372. Appeals — Bond 1118 § 1373. Any of several parties may appeal 1] 19 § 1374. When record to be filed with clerk 1110 § 1375. Agreed case 1121 § 1376. Judge may certify questions of law 1121 § 1377. Exceptions to two preceding sections 1122 § 1378. Appeal from appellate to supreme court — Final judgment 1122 § 1379. Supreme court — To pass only on law — Exceptions 1124 § 1380. Appeals from interlocutory orders concerning injunctions and receivers 1124 Rules op Coitet § 1381. Appearance of parties 1125 § 1382. Defaults 1125 § 1383. What may be considered as motions of course 1125 § 1384. Calling and hearing of motions 1] 2fi § 1384a. — Contested motions 1126 § 1385. Default divorces and other default suits 1128 I 1386. Withdrawal of solicitors 1128 § 1387. Abstract of pleadings and evidence 1128 § 1388. Decrees, etc., as to sale of real estate 1129 § 1389. Changing final decree as to alimony or custody of children. . . .1129 § 1390. Bonds 1129 § 1391. Complete record, etc 1129 § 1392. Receivers 1129 § 1393. Taking testimony — Proceedings — Closing proofs 1129 xviii EQUITY PRACTICE ILLINOIS (Rules— cont.) § 1394. Competency of witnesses — Examination — Eulings on evidence — Objections and exceptions 1130 § 1395. Accounting — Examination of party 1131 § 1396. Examination of creditors, etc 1131 § 1397. Use of affidavits, depositions, etc 1131 §1398. Bill of petition — Filing — Examination — Indorsement 1132 § 1399. Attendance of solicitors on Saturday 1132 § 1400. Appearance of parties 1132 § 1401. Defaults 1133 § 1402. Motions of course 1133 § 1402a. — What may be considered as motions of course 1133 § 1402b. — How made 1133 § 1403. Motions 1134 § 1403a. — Contested motions 1134 § 1404. Trial calendar 1136 § 1405. Sickness, etc., of solicitor 1136 § 1406. Passed cases '. 1137 § 1407. Divorces and default cases 1137 § 1408. Withdrawal of solicitor 1137 § 1409. Abstract of pleadings and evidence 1138 § 1410. Decrees, etc., as to sale of real estate 1138 § 1411. Changing final decree as to alimony or custody of children. . . .1138 § 1412. Bonds '. 1138 § 1413. Complete record, etc 1138 § 1414. Eeceivers 1139 § 1415. Pleadings and copies thereof 1139 § 1416. Chancery register 1139 § 1417. Costs 1140 § 1418. Application to sue as poor person 1140 § 1419. Taking testimony — Proceedings — Closing proof 1141 § 1420. Competency of witnesses — Examination — Eulings on evidence — Objections and exceptions 1142 § 1421. Accounting — Examination of party 1143 § 1422. Examination of creditors, etc 1143 § 1423. Use of affidavits, depositions, etc 1143 §1424. Bill or petition — ^Piling — Examination — Indorsement 1144 § 1425. Attendance of solicitors on Saturday 1144 § 1426. Eule as to certificates of good moral character 1144 § 1427. Rules— When to go into effect 1145 CHAPTER XXXIV MAINE Statutes § 1428. Commencement of suit — Issue of subpoena — Return day — At- tachment in aid — Service of process — Contents of bill — Amendments 1146 § 1429. Certificate of commencement of suit — Eecording 1146 § 1430. Verification of bill 1147 § 1431. Discovery 1147 §1432. Appearance — Default — Decree pro confesso — Opening 1147 § 1433. Answer — Default — Diecree pro confesso— Opening — Signing and verifying answer 1147 § 1434. Replication- Time for filing 1148 § 1435. Time for answer, replication and hearing — Covirt may fix 1148 §1436. Masters in chancery — Appointment — Term — Duties — Fees 1148 § 1437. Equity terms — Hearings — Issuance of process — Powers of single justice — Eule days 1149 § 1438. Hearing — Court may fix — Jury trial 1149 § 1439. Evidence — Oral testimony — Transcribing 1149 CONTENTS OF VOLUME II xix MAINE (Stat. — eont.) § 1440. Decrees — Power to enter 1149 § 1441. Appeals from final decrees — Entering — Hearing — Docket below. 1150 §1442. Receivers, injunctions and prohibitions while appeal pending.. 1150 § 1443. Appeals from interlocutory decrees — Eevision on appeal from final decree 1150 § 1444. Reporting cause to law court 1151 § 1445. Further time to appeal 1151 § 1446. Exceptions — Hearings — Findings 1151 § 1447. Dating orders and decrees 1152 § 1448. Issue of process for enforcement of decree 1152 § 1449. Recording decrees affecting real estate 1152 § 1450. Place of hearings 1152 i 1451. Evidence on appeal 1153 § 1452. Framing issues of fact — Confirming or setting aside verdict — Appeal and exceptions — Confirming or setting aside verdict — New trials 1153 § 1453. Issue of process to enforce decree 1153 § 1454. Preliminary injunctions — Perpetual injunctions 1153 § 1455. Summary process — Contempt — Hearing — Punishment — Appeal. 1154 § 1456. Frivolous or vexatious exceptions or appeals — Certificate of justice — Decision — Costs 1155 § 1457. Overruling for want of prosecution 1155 § 1458. Absent defendant not served with process — ^Review of decree — Supersedeas — Review in case of fraud, accident, or mistake — Time for filing petition 1155 § 1459. Review of interlocutory orders or decrees 1156 I 1460. Rules 1156 § 1461. Transfer of actions at law to equity 1156 § 1462. Transfer of suit in equity to law side 1156 § 1463. Transfer of action at law to equity docket '. . .1157 § 1464. Equitable relief in action at law '. .1157 § 1465. Equitable defences and replies in action at law — Transfer of cause 1157 § 1466. Protection of equitable rights in action at law 1158 § 1467. Attachment to secure judgment 1158 § 1468. Equity to prevail 1158 § 1469. Proving execution of documents 1158 § 1470. Death of party — Revivor against heirs or representatives 1158 § 1471. Indorsement of bill— Security 1159 § 1472. Proceedings against indorser 1159 § 1473. When new indorser necessary 1159 § 1474. Description of unknown or non-resident defendants — Joinder of parties plaintiff 1160 § 1475. Service by posting or publication — Appointment of agents, etc. — Cost of appearance 1161 § 1476. Decree against defendants not personally served 1161 § 1477. Wild lands ' 1162 §1478. Right of redemption — Demand of accounting — Bill 1162 § 1479. Redemption after payment or tender where mortgagee never in possession 1163 § 1480. Redemption before breach of condition or tender of payment where mortgagee non-resident — Notice — Fraudulent mortgage .1163 § 1481. Redemption where mortgagee non-resident or residence unknown. 1163 § 1482. Payment or tender to non-resident mortgagee before foreclosure — Proceedings for redemption — Notice — Discharge of mort- gage 1164 § 1483. Time for proceedings founded on tender or performance before suit 1164 § 1484. Joinder of parties after suit commenced 1164 § 1485. Execution 1165 § 1486. Deductions from money paid into court for redemption 1165 § 1487. Time and manner of proceeding 1165 § 1488. Bill in equity after judgment in review 1166 XX EQUITY PRACTICE EULES or COTJET MAINE— cont. § 1489. The court 1166 § 1490. Clerk 1166 § 1491. Rule days 1166 § 1492. The bill 1167 § 1493. Verification 1167 § 1494. Process . ; 1167 § 1495. Service on non-residents 1167 § 1496. Appearance 1168 § 1497. Pleadings in defence 1168 i 1498. Answers 1168 § 1499. Jury trials 1168 § 1500. Jurats 1169 § 1501. Discovery, etc 1169 § 1502. Demurrers and pleas 1169 § 1503. Certification of demurrers and pleas ' 1169 § 1504. Answers to cross-bills 1169 § 1505. Eeplieations 1169 § 1506. Signature of counsel 1170 § 1507. Exceptions to bills 1170 § 1508. Amendments 1170 § 1509. Bills of revivor 1170 § 1510. Setting cause for hearing 1170 § 1511. Overruled defences 1170 § 1512. Oral evidence 1171 § 1513. Documentary evidence 1171 § 1514. Production of documents 1171 § 1515. Allegations not traversed 1171 § 1516. Decrees 1171 § 1517. Forms of decrees 1172 § 1518. Master 1172 § 1519. Compensation of master 1173 § 1520. Exceptions to master 's report 1173 § 1521. Costs 1173 § 1522. Eesponsibilities of attorney 1174 § 1523. Verification of copies 1174 § 1524. Notices 1174 § 1525. Presenting application once acted upon to different justice. . . .1174 § 1526. Writs of injunction 1175 § 1527. Eehearings 1175 § 1528. Interlocutory hearings 1175 CHAPTER XXXV MARYLAND Statutes § 1529. When death does not abate 1176 § 1530. Suggestion of death of party 1176 § 1531. Subpoena for representative of deceased party — Notice to non- resident 1176 § 1532. Suggestion of death by representative- of deceased party 1176 § 1533. Death of representative of deceased party 1177 § 1534. Death of party after cause set down or submitted — Decree. . . .1177 § 1535. Death after decree for account, sale or partition, or after answer — Appearance by heir - 1177 § 1536. Death of party after final decree — Proceedings 1178 § 1537. Failure of representative to appear 1178 § 1538. Service on representative evading process 1178 § 1539. Service on absent parties on death of party 1178 § 1540. Bill of revivor — Service of notice 1179 CONTENTS OF VOLUME II XXI MARYLAND (Stat.— cont.) § 1541. Marriage of party — Bringing in spouse 1179 § 1542. Eight to amend 1179 § 1543. Amendment where party under disability or non-resident — Pleadings and proof .■ 1179 § 1544. Laying matters before auditor 1180 § 1545. Proceedings by auditor — Notice — Adjournments 1180 § 1546. Examination of parties and witnesses — Compelling production of documents 1180 §1547. Accounting — Examination of parties — Duties of auditor 1181 § 1548. Power to compel 1181 § 1549. Failure to comply with order to produce 1182 § 1550. Establishing right to legal character or to property 1182 § 1551. When declaratory decree improper 1182 § 1552. Eights of trustee of property 1183 § 1553. Contingent characters or rights 1183 § 1554. Making up issues — Trial 1183 § 1555. Persons bound — Trustees 1183 § 1556. Appeals 1184 § 1557. Judgment at law not essential — Determining, issues of fact. . . .1184 § 1558. Attachment for violation 1184 § 1559. Waste after injunction — Punishment — Transfer of property after injunction — Punishment — Eights of purchaser 1184 § 1560. Discharge from attachment for violation — Costs 1185 § 1561. Application by executor or administrator for injunction — Bond 1185 §1562. Injunction against sale on execution — Eeturn of property. .. '..1186 § 1563. Taking testimony on injunction and receivership motions 1186 § 1564. Adequate remedy at law — When injunction or mandamus re- fused—Bond 1186 § 1565. Submission of controversy — Decree 1187 § 1566. Confirmation of sale by executor 1187 § 1567. Decree for deed — Trustee — Decree as deed 1187 § 1568. Contract rights of infant or person non compos mentis — Eeview of decree against infant 1187 § 1569. Notice to non-residents 1188 § 1570. Notice by publication to non compos mentis non-resident — Failure to appear 1188 § 1571. Decree against non-resident for execution of contract for sale of property — Bill of review 1188 § 1572. Proceedings on return of subpoena non est 1189 § 1573. Suits against corporations — Notice by publication where officers non-resident 1189 § 1574. interpleader — Non-residents failing to file answers — Pro- ceedings 1189 § 1575. Unknown whether non-resident living or dead — Heirs unknown — Executor or administrator unknown — Description and prayer for notice by publication 1190 § 1576. Deceased non-residents — Notice by publication to heirs and representatives — Proceedings — Intervention by representative.1190 § 1577. Bill affecting realty — Heirs unknown — Description — Notice by publication — Effect of decree 1191 § 1578. Foreign representative as party — Service of process — Appear- ance — Intervention 1192 § 1579. Appearance by non-resident 1193 § 1580. Notice by puljlication — Time and manner of giving — Order — Proof of service 1193 § 1581. Bill for renewal of lease — Unknown parties — Service by publica- tion — Effect of decree 1194 § 1582. Partition — Sale — Persons under disability — Deeds — Parties — Eights of lienors 1195 § 1583. Partition of separate lots 1196 § 1584. Courts always open — Terms 1196 § 1585. Dockets 1196 xxii EQUITY PRACTICE MARYLAND (Stat.— cont.) § 1586. Commencement of suit ' I197 § 1587. Issuance of order or process — Time for 1197 § 1588. Process — When returnable 1197 § 1589. Duty of clerk to issue process — ^Summons for each defendant. .1197 § 1590. Service of process 1197 § 1591. Appearance by guardians and committees — Appointment of guardian ad litem 1-198 § 1592. Suits by persons under disability — Prochein ami 1198 § 1593. Appearance — Time for entering — Time for answer — Noting appearance 1199 § 1594. Failure to answer, plead or demur — Decree pro confesso 1199 § 1595. Discovery — Affidavits — Pinal decree 1200 § 1596. Failure to answer after appearance — Insufficient answer — Decree pro confesso 1200 § 1597. Answer after interlocutory order or decree — Granting permis- sion 1200 § 1598. Recitals in bill — Scandal and impertinence — Striking out 1201 § 1599. Introduction to bill— Form 1201 § 1600. Paragraphs — Numbering — Statement of facts — Necessary aver- ments — Prayer for relief — Omission of formal averments; — Prayer for answer 1201 § 1601. Prayer for process or publication: 1202 § 1602. Time for answer, plea or demurrer — Special leave — Answer, plea or demurrer to part of bill 1202 § 1603. Affidavit to plea or demurrer — Form of demurrer 1203 § 1604. Argument on plea or demurrer — Taking issue on plea — Effect of judgment for defendant 1203 § 1605. Defendant setting down plea or demurrer for argument — Notices 1203 § 1606. Amendment where demurrer or plea allowed 1203 § 1607. Answer over where demurrer or plea overruled — Vexatious demurrer 1203 § 1608. Costs and allowance where plea or demurrer overruled 1204 § 1609. Answer — Form — Matters to be included 1204 § 1610. Special interrogatories to defendant — Interrogatories to plain- tiff — Notice — Time to answer 1205 § 1611. Refusal to answer interrogatories — Insufficient answers — Filing replication 1205 § 1612. Cross-bills— Form — Service 1206 § 1613. Verification of answer — Answer as evidence — Exceptions 1206 § 1614. Unverified answer as evidence — Verified answer as affidavit. . . .1206 § 1615. Replication — Time of filing — Failure to file 1207 § 1616. Special replication — Amendment of bill 1207 § 1617. Failure to amend bill in time — ^Rights of defendant on amend- ment of bill — Practice 1207 § 1618. Enforcement of obedience to process, rules and orders — Fine — Commitment 1 208 § 1619. Rule for security for costs against non-resident plaintiff 1208 § 1620. Bond where parties numerous 1209 § 1621. Allowances to examiners, commissioners, witnesses, masters, auditors, etc 1209 § 1622. Filing opinions 1209 § 1623. Heirs as parties to foreclosure proceedings 1209 § 1624. Bill of review for failure to take testimony — Supplying proof. .1209 § 1625. Awarding costs and fee on exceptions to answer 1210 § 1626. Parties defendant to suit on joint and several claim — Cross- bill by defendant 1210 § 1627. Trustees representing parties beneficially interested 1210 § 1628. Misjoinder of parties — How cured — Decree as between plaintiffs.1'211 § 1629. Want of parties — Saving rights of absent parties 1211 § 1630. Want of parties — Argument on objection — Entry by clerk — Failure of plaintiff to set down cause 1211 § 1631. Enrollment of decrees and orders 1212 CONTENTS OF VOLUME II xxiii MAEYLAND (Stat.— oont.) § 1632. Clerical mistakes in decrees and orders — Correction 1212 § 1633. Petition for rehearing — Contents — Signature — Time for grant- ing 1212 § 1634. Writs to several counties — Costs for wrongful issue 1213 § 1635. Enforcement of decree — ^Attachment — ^Sequestration — Injunc- tion — Practice 1213 § 1636. Enforcement of orders — Costs 1214 § 1637. Writs for enforcement of decrees, orders, etc. — Issue to different counties — Docketing — Lien — Renewal — Costs when vexatiously issued 1214 § 1638. Enforcement of order or decree for delivery of chattels 1214 § 1639. Bill for discovery — Failure to answer — Examination of plaintiff —Decree 121S § 1640. Failure to appear — Attachment — Decree pro confesso 1215 § 1641. Failure to answer — Attachment — Commitment — Decree pro con- fesso 1216 § 1642. Failure to appear or answer — Proceedings by plaintiff 1216 § 1643. Issue of process — Commission to take testimony 1216 § 1644. Mandate or injunction — Issue of 1216 § 1645. Discharge of mandate or injunction — Motion — Appeal 1217 § 1646. Possession of property or receipt of income pendente lite — Power of court — Appeal 1217 § 1647. Order charging income, interest or dividends — Service — Dis- charge • 1217 § 1648. Orders binding as to persons against whom issued 1218 § 1649. Decrees against infants and insane persons 1218 § 1650. Passing upon questions of law 1218 § 1651. Stating special ease — Entitling and docketing 1219 § 1652. Contents of special case — Hearing — Decree 1219 § 1653. Persons under disability as parties to special case 1219 § 1654. Revivor against heirs or representatives 1220 § 1655. Seal to pleadings of corporation not essential 1220 § 1656. Foreclosure sales — Deficiency decree — Effect 1220 § 1657. Sale of reversion — Disposing of rents 122] § 1658. Sale before final decree — Custody of proceeds 1221 § 1659. Compelling purchaser to comply with terms of sale — Ee-sale. . . .1221 § 1660. Terms of sale 1222 § 1661. Bond where sale made on credit 1222 i 1662. Sale of equitable title 1222 ' § 1663. Corporation surety on receiver's bond — Penalty 1222 § 1664. Refusal to grant on ground of adequate remedy at law — Security required of resisting party 1223 § 1665. Sale by trustee 1223 § 1666. Bond of trustee 1223 § 1667. Confirmation of trustee 's sale 1224 § 1668. Piling trustee 's bond 1224 § 1669. Commissions to take testimony — Examiners — Powers — Fees. . . .1224 § 1670. Notice to examiner — Fixing hearing — Notice — Subpoenas 1225 § 1671. Examination of witness before examiner 1225 § 1672. Concluding interrogatory by examiner 1226 § 1673. Testimony to be written down — Signing — Objections — Questions of privilege 1226 § 1674. Closing depositions — Authenticating 1227 § 1675. Hearing to be prompt — Rule on adverse party — Enlarging time.1227 § 1676. Opening depositions — Holding for exception 1228 § 1677. Examination of witnesses de bene esse 1228 § 1678. Oral examination of witnesses 1228 §1679. Same ..■ 1228 § 1679a. Same 1229 § 1680. Taking testimony for hearing of interlocutory applications. . . .1229 § 1681. Issue of commission to take testimony .' 1229 i 1682. Issue to one person ' 1229 § 1683. One commissioner to act — Duties as clerk 1229 xxiv EQUITY PRACTICE MAEYLAND (Stat.— eont.) § 1684. Rules for taking testimony — Fees of commissioner 1230 § 1685. Compelling 'witness to attend and answer 1230 § 1686. Failure of part of defendants to appear 1231 § 1687. Addition to or alteration of rules 1231 § 1688. Eemoval of case from law to equity 1231 § 1689. When allowed from final decree — Costs on affirmance 1232 § 1690. When allowed in specified cases — Injunctions, receiverships, sales, etc 1232 § 1691. Effect on previous orders 1232 § 1692. Appeal as supersedeas — Bond 1232 § 1693. Staying operation of previous order — Bond 1233 § 1694. Time for taking and entering appeal 1233 § 1695. Transcript of record — Transmitting 1233 § 1697. Incorporating substance of documents — Transcript 1234 § 1698. Objections raised in appellate court 1234 § 1699. Striking out entry of appeal 1234 § 1700. Staying execution— Bond 1234 EuLEs OF Court § 1701. Courts always open — Terms 1235 § 1702. Duties of clerks as to files and dockets 1236 § 1703. Commencement of suits 1236 § 1704. Process not to issue before filing' of papers 1236 § 1705. Form of process 1236 § 1706. When process returnable 1236 § 1707. Issue of process — Separate summons 1237 § 1708. Service of process 1237 § 1709. Eequiring appearance for person under disability — Guardian ad litem — Commissions for taking answers abolished 1237 § 1710. Suit by person under disability 1238 § 1 711. Entering appearance 1238 § 1712. Failure to appear, answer, plead or demur — Decree pro confesso.1238 § 1713. Bill— Scandal and impertinence 1239 § 1714. Introductory part of bill 1239 § 1715. Contents of bill 1240 § 1716. Prayer for process or publication 1240 § 1717. Special leave to answer — Answering part of bill 1240 § 1718. Verification of plea or demurrer — Form of demurrer 1241 § 1719. Setting down demurrer or plea for argument — Taking issue. . . .1241 § 1720. Defendant setting down plea or demurrer for argument 1241 § 1721. Amendment where demurrer or plea allowed 1241 § 1722. Answer after demurrer or plea overruled — Decree pro confesso.1241 § 1723. Answer 1242 § 1724. Special interrogatories to defendant 1242 § 1725. Eefusal to answer interrogatories — Exception — Eeplication 1243 § 1726. Cross-bills 1243 § 1727. Ans\rer as evidence 1244 § 1728. Eeplication 1244 § 1729. Amendment of bill — Leave 1245 § 1730. Amendment of bill— Eights of defendant 1245 § 1731. Claim against several — Parties — Cross-bill 1245 i 1732. Trustees as parties 1246 § 1733. Misjoinder of parties — Decree as between parties 1246 § 1734. Want of parties — Saving rights of absent parties 1247 § 1735. Want of parties — ^Setting down for argument on exception — Adding parties 1247 § 1736. Commission to take testimony — Examiners — Powers and duties —Pees 1247 § 1737. Taking testimony before examiners — Compelling attendance of witnesses 1248 § 1738. Examination of witnesses before examiners 1249 § 1739. Concluding interrogatory by examiner 1249 CONTENTS OF VOLUME II xxv MAE YL AND (Rules— eont.) § 1740. Taking down testimony before examiner — Signing — Eeporting objections — Costs 1250 § 1741. Authenticating, closing and filing depositions 1250 § 1742. Delay in taking testimony 1251 § 1743. Opening depositions 1251 § 1744. Examination of witnesses de bene esse 1251 § 1745. Oral examination of witnesses — Taking down evidence 1251 § 1746. Interlocutory applications — Taking testimony 1252 § 1747. Special case stated — Entitling — Docketing 1252 § 1748. Special case stated — Form — Hearing — Decree 1253 § 1749. Special case stated — Persons under disability as parties 1253 § 1750. Enrolment of orders and decrees 1254 § 1751. Correction of clerical errors in orders and decrees 1254 § 1752. Rehearing — Petition — Signing and verifying — Time for grant- ing—Effect 1254 § 1753. Reference to auditor 1254 § 1754. Hearing before auditor — Adjournment 1255 § 1755. Examination of witnesses and parties by auditor — Compelling production of papers 1255 § 1756. Production of accounts — Examination of person offering 1256 § 1757. Rules 1256 § 1758. Time for taking and entering 1256 § 1759. Transcript 1257 § 1760. Contents of transcript ^ 1257 § 1761. Incorporation of documentary evidence in transcript 1258 § 1762. Transmitting transcript — Docketing case 1258 § 1763. Failure to transmit transcript in time 1258 § 1764. Cross-appeals or more than one appeal — Transcript — Costs. . . .1259 § 1765. Transcript on second appeal 1259 § 1766. Writ of diminution 1259 § 1767. Making up transcript — Printing — Cost 1259 § 1768. Appeals from pro forma orders, decrees or judgments 1260 CHAPTER XXXVI MASSACHUSETTS Statutes § 1769. Courts having equity jurisdiction 1261 § 1770. Issuance of writs and process 1261 § 1771. Venue 1261 § 1772. Adequate remedy at law 1261 § 1773. Procedure — Process — Rules 1262 § 1774. Commencement of suit — Summons — Attachment — Trustee proc- ess — Entry of writ 1262 § 1775. Insertion of bill or petition in summons 1262 § 1776. Construction of wills — Notice of petition — Service — Publication.1263 § 1777. Docket— Return of process 1263 § 1778. Bill — Contents — Address — Introductory part — Prayer for dis- covery 1263 § 1779. Demurrer or plea — Answer 1264 § 1780. Signature to pleadings 1264 § 1781. Hearing and determination by one justice 1264 § 1782. Court always open — Rule days 1264 § 1783. Appeal from final decree. 1264 § 1784. Docketing appeal 1265 § 1785. Appeal — Receiver — Injunction — Prohibition 1265 § 1786. Suspension of execution of decree pending appeal 1265 § 1787. Justice to report facts on appeal 1266 § 1788. Appeal — Reporting evidence — Additional evidence 1266 § 1789. Appeal from interlocutory decree 1266 xxvi EQUITY PRACTICE MASSACHUSETTS (Stat.— cont.) § 1790. Eevision of interlocutory decree on appeal from final decree .... 1267 § 1791. Staying operation of interlocutory decree 1267 § 1792. Failure to appeal in time — Granting leave 1267 § 1793. Justice reserving and reporting evidence and questions of law. 1267 § 1794. Defendant removing suit to supreme judicial court — Powers of superior court 1267 § 1795. Justice ordering suit removed to supreme judicial court 1268 § 1796. Dissolution of injunction issued by another court 1268 § 1797. Dating entry of order or decree 1268 § 1798. Execution of final decree — Issue of process 1268 *) 1799. Justice hearing cases pending in another county 1269 § 1800. Trial of issues of fact — Supreme judicial court framing issues. . 1269 § 1801. Summoning jury for trial of issues of fact — Trial 1269 § 1802. Trial of issues of fact — Superior court framing issues 1269 § 1803. Writs of seisin and execution 1270 § 1804. Justices sitting in Boston 1270 § 1805. Justice sitting in Springfield 1270 § 1806. Removal of papers from files 1270 § 1807. Service of summons or subpoena 1270 § 1808. Procedure as at law 1270 § 1809. When allowed for discovery 1271 § 1810. Answers 1271 § 1811. Filing interrogatories — Failure to answer — Extent to which answer compelled 1271 § 1812. Failure or refusal to answer 1272 §1813. Interrogatories to corporations — To persons under disability. .1272 § 1814. Costs 1272 § 1815. Sealing up matters not pertinent 1272 § 1816. Frivolous prayer for discovery 1273 § 1817. Discretion of court 1273 § 1818. Before entry of writ 1273 § 1819. Indorsement after entry of writ 1274 § 1820. Eemoval of plaintiff after suit commenced 1274 § 1821. Indorser moving from state 1274 § 1822. Indorsement to secure costs in supreme judicial court 1274 § 1823. Dismifsal on failure to procure indorser 1274 § 1824. Substituting indorser 1274 § 1825. Appearance or summons 1274 § 1826. New trial— When denied 1275 § 1827. Appeal — Directing entry of judgment — Trial of issues of fact. 1275 § 1828. Amendments in appellate court — Taking evidence 1276 § 1829. Passing on exceptions where evidence reported 1276 § 1830. Case stated — Powers of court 1277 § 1831. Decree to operate as deed 1277 § 1832. Eecording decree 1277 § 1833. Eegistration of copy of decree 1278 § 1834. Enforcement of performance of decree 1278 § 1835. Notice — Procedure 1278 § 1836. Trial by jury 1279 § 1837. Provision not applicable to probate courts 1279 § 1838. Describing unknown defendants — Joinder of plaintiffs 1279 § 1839. Constructive service of notice 1280 § 1840. Non-appearance of defendants not actually served — Guardians ad litem 1280 § 1841. Expenses of guardian ad litem 1280 § 1842. Decree 1281 § 1843. Changing action at law to suit in equity 1281 § 1844. When debtor may sue 1281 § 1845. Offer of payment — Deposit of money with clerk 1282 § 1846. Costs 1282 CONTENTS OF VOLUME II xxvii EULES OF COUKT MASSACHUSETTS— cont. § 1847. Original process 1282 § 1848. Issuance of injunction 1283 § 1849. Eule days 1283 § 1850. Process — Service and return 1283 § 1851. Non-residents — Appearance— Service by publication 1284 § 1852. Printing pleadings 1284 § 1853. Answer 1284 § 1854. Eeturn days — Default — Decree confessed 1285 § 1855. Demurrer, plea or answer — Part of bill 1285, § 1856. Setting down plea or demurrer for argument — Taking issue on plea 1285 § 1857. Answer when plea or demurrer overruled 1285 § 1858. Costs on interlocutory order or decree 1286 § 1859. Special matter in answer 1286 § 1860. Cross-bills 1286 § 1861. Eeplieations 1286 § 1862. Eeplication — Setting down case for hearing — Exceptions 1286 § 1863. Discovery — Exceptions — Answer — Argument — Costs — Second answer 1286 § 1864. Amendment of bill— Costs 1287 § 1865. Amendment after demurrer 1287 § 1866. Amendment — Service on defendant — Answer 1287 § 1867. Amendments — Discretion of court . 1287 § 1868. Service of notices 1288 § 1869. Death of party — Bringing in representative 1288 § 1870. Parties not in jurisdiction of court 1288 § 1871. Bill of revivor — Supplemental bill — Joinder of parties 1288 § 1872. Bills by executors or trustees — Interpleader — Appearance of counsel of plaintiff for defendant 1288 § 1873. When case ready for hearing 1289 § 1874. Admissions by failure to answer 1289 § 1875. Depositions 1289 § 1876. Hearing before master 1289 § 1877. Eeport of master — Objections — Exceptions 1289 § 1878. Exceptions to master's report 1290 § 1879. Place of hearing causes r 1290 § 1880. Hearing before justice in another county — Injunction pro- ceedings 1290 § 1881. Eeporting evidence on interlocutory application 1290 § 1882. Trial of issues of fact by jury 1291 § 1883. Drafting decree— Form 1291 § 1884. Eules in actions at law, when applicable 1292 S 1885. Docket 1292 CHAPTEE XXXVII MICHIGAN Statutes } 1886. Circuit courts to be courts of chancery 1293 ) 1887. Venue of suits in chancery — Proceedings in behalf of state. . . .1293 5 1888. Jurisdictional amount — Specific performance 1294 ; 1889. Creditors ' bills .'. 1294 ! ] 890. — Power of court 1295 i 1891. Set-offs 1295 ] 1892. Bills for discovery of frauds in confessing judgment 1295 (1893. — When answer not evidence 1296 i 1894. Lis pendens 1296 I 1895. When oath to answer may be waived 1296 t 1896. Eules of practice 1 296 xxviii EQUITY PRACTICE MICHIGAN (Stat.— cont.) § 1897. Receivers — Power to appoint 1297 § 1898. — Application 1297 § 1899. Quieting title 1297 § 1900. Terms '. 1297 § 1901. "When equity calendar to be talien up 1298 § 1902. Forms of process 1298 § 1903. Process — Signing and service 1298 § 1904. — Seal and date 1298 § 1905. —Blanks— Duty to furnish 1299 § 1906. "When appearance of defendant may be ordered entered 1299 § 1907. Eules for taking bills as confessed and decrees by default 1299 § 1908. Pleadings— "Where filed 1299 § 1909. Service of pleadings on part of complainant 1299 § 1910. Service of pleadings on part of defendant 1300 § 1911. Service on or by solicitor 1300 § 1912. When cause deemed at issue — Necessity for subpoena 1300 § 1913. Trial by jury— Verdict 1300 § 1914. Enrollment of decree, etc 1300 § 1915. — Filing by register 1301 § 1916. Eecording decree affecting realty — Effect where conveyance de- creed 1301 § 1917. Decree — How discharged 1301 § 1918. — Order for discharge 1302 § 1919. How performance of decree may be enforced 1302 § 1920. "When death not to abate suit 1302 § 1921. "When suit to abate as to party dying 1302 § 1922. Revival of suits against representatives of decedents 1302 § 1923. — Service of order on representative 1303 § 1924. — "When appearance of representative may be ordered entered . . 1303 § 1925. — "When bill may be taken as confessed or answer compelled. . .1303 § 1926. — "When further answer may be required from representative. ..1303 § 1927. — Failure to answer 1304 § 1928. — "When representatives of deceased complainant may be made complainants 1304 § 1929. — Defendant compelled to answer amended bill 1304 § 1930. — When surviving complainant may make representatives of deceased complainants defendants 1304 § 1931. — Order to show cause why suit should not stand revived or bill be dismissed 1304 § 1932. — Proceedings if no cause shown 1305 § 1933. — Revival on petition of surviving defendant 1305 § 1934. — Proceedings by surviving defendant 1305 § 1935. Publication of order requiring creditors to exhibit demands. . . .1305 § 1936. Absent, concealed or non-resident defendants — Order for ap- pearance 1306 §1937. —Requisites of order 1306 § 1938. — Publication of order for appearance 1306 § 1939. — Extension of time for appearance 1307 § 1940. — When bill may be taken as confessed — Reference to take proofs 1307 § 1941. — Taking of proof before master 1307 §1942. — Examination of complainant with reference to payments. . .1307 § 1943. — Report of master 1308 § 1944. — Enforcement of decree 1308 § 1945. — Security before delivery of possession 1308 § 1946. — Satisfaction of decree out of sequestered estate 1308 § 1947. — Appearance after decree 1308 § 1948. — Time for appearance 1309 § 1949. — Confirmation of decree , 1309 § 1950. — Decree for sale on bill for foreclosure 1309 §1951. — Proceedings where defendant appears before sale 1309 § 1952. — Appearance of defendant not to affect sale 1309 CONTENTS OF VOLUME II xxix MICHIGAN (Stat.— oont.) § 1953. Injunction to stay proceedings at law — ^Bond 1310 § 1954. — Deposit before issuance 1310 § 1955. — To stay proceedings after judgment in personal action 1310 § 1956. — Payment of deposit to plaintiff in action at law 1311 § 1957. — Proceedings where adverse decision after payment 1311 § 1958. — To stay proceedings for recovery of lands 1312 § 1959. — Damages on dissolution 1312 § 1960. — "When bond taken in lieu of deposit 1312 § 1961. — When deposit and bond dispensed with 1312 § 1962. — Ascertaining sufSeiency of sureties 1313 § 1963. — Filing of bond '. 1313 § ] 964. — Prosecution of bond 1313 § 1965. — Power to grant injunctions 1313 § 1966. Venue 1314 § 1967. Power of court to decree sale of mortgaged premises 1314 § 1968. Court may compel delivery of possession, and direct payment of balance 1314 § 1969. No proceedings to be had at law while bill pending, etc 1315 § 1970. When court may decree payment of balance against other person than mortgagee 13] 5 § 1971. Bill to state whether any proceeding had at law 1315 § 1972. If judgment has been obtained at law, no proceedings to be had, unless execution returned unsatisfied 1315 § 1973. Sales, how made 1316 § 1974. Form of deeds executed on sale of property — Where deposited — How recorded — Duties of register of deeds in case of re- demption — When deeds to become operative 1316 § 1975. Application of proceeds of sale 1317 § 1976. When surplus may be put out at interest 1317 § 1977. When bill to be dismissed on payment of amount due and costs.1317 § 1978. When proceedings to be stayed on payment of amount due, ete..l31s § 1979. Reference in case of decrees for complainant in certain cases. 131 8 § 1980. Proceedings in case of default subsequent to decree 1318 § 1981. When whole of premises to be sold in the first instance 1318 § 1982. In case of sale of whole premises, how proceeds applied 1319 § 1983. Proceedings when circuit judge disqualified 1319 § 1984. Eight to appeal— Time 1320 § 1985. Claim of appeal — Filing 1320 § 1986. Extension of time 1321 § 1987. Stay of proceedings — Bond 1321 § 1988. Evidence 1322 8 1989. Time for perfecting— Bond 1322 § 1990. Duty of register 1323 § 1991. Powers of supreme court in appeal 1324 § 1992. Eecords to be remitted 1324 § 1993. Powers 1324 § 1994. Power of successor of judge to sign 1325 § 1995. Eecording decrees of former courts 1325 § 1996. Opinion on final hearing — When to be rendered 1326 § 1997. Decision of court — When given 1326 § 1998. Circuit judge may transmit judgment in vacation — Clerk or register to enter same 1326 § 1999. Notice of entry to be given 1326 § 2000. Orders in vacation-time, how computed when writ of error or appeal is taken 1327 § 2001. Where judge is interested, suit may be transferred to another circuit 1327 § 2002. Application for transfer of suit 1327 § 2003. Judge to appoint time of hearing application 1328 § 2004. When judge to grant order for transfer 1328 § 2005. In case parties agree on court — In ease no agreement reached.. 1328 § 2006. Jurisdiction of court to which case assigned 1328 §'2007. Clerk to transfer papers with copy of records, etc 1329 XXX EQUITY PRACTICE MICHIGAN (Stat.— cont.) § 2008. Fees of clerk and register on transfer 1329 § 2009. Circuit courts, when in session — Try and determine issues of law and fact — Habeas corpus and other remedies 1330 § 2010. Commissioner to discharge duties of master in chancery 1330 § 2011. Process in chancery cases may be served same as in actions at law 1331 § 2012. Testimony of any witness may be taken by deposition, when — Deposition may be taken before any judge, etc., not interested — Seal — Notice to be given before deposition is taken — Any person may be compelled to appear and depose 1331 § 2013. When deposition of witness may be taken under commission — Written interrogatories may be attached to commission .... 1333 § 2014. Courts shall have power to compel attendance of witnesses. . . .1333 § 2015. Witness shall be sworn — May be examined, orally — Testimony may be written or taken stenographically — Deposition to be transmitted by mail to the court — Objections to manner of taking testimony, how made 1333 § 2016. Testimony of witness to be taken conditionally, when — When testimony under this section may be used 1334 § 2017. Parties interested in suits may have testimony taken in any manner 1335 § 2018. Court shall have power to regulate the use of depositions 1335 § 2019. Fees for taking depositions 1335 § 2020. Change of rules of evidence — Complainant to introduce evidence as to judgment, etc. — Where burden of proof to rest 1336 § 2021. Unknown heirs may be made defendants — Affidavits by com- plainants — Order of court 1336 § 2022. Certificate to be executed — Fee for filing — Duty of register of deeds 1337 § 2023. Eight — Procedure — Settlement of evidence on appeal 1337 § 2024. Defendants, who may be made, in chancery matters — Eeal estate, when subject matter is 1339 § 2025. Who may commence proceedings — Persons proceeded against — Unknown persons, how designated — Court may require further description 1340 § 2026. Defendant in action to quiet title — Limitation — Claimants under deceased persons 1341 § 2027. Corporations or partnership associations 1342 § 2028. Bill of complaint to be sworn to — Order for appearance — Description of lands 1342 § 2029. Subsequent proceedings — Proviso, appointment of guardians — Eeopening of case 1343 § 2030. Appearance of a co-defendant 1343 § 2031. Decrees — Eecording of decree affecting real estate 1344 § 2032. Who may have partition 1344 § 2033. Suits, how instituted — If land is in different counties 1344 § 2034. Suit, who may maintain — Undivided interest 1345 § 2035. Bill to be verified, and what to set forth 1345 § 2036. Who may be made parties 1346 § 2037. Unknown parties and uncertain interests 1346 § 2038. Creditors having lien need not be made parties, in first instance. 1346 § 2039. Transfer of lien on undivided interest — When commissioners may set apart portion of premises — Transfer of lien — Premises to be first charged with costs — Other persons made parties to such proceedings by petition to the court 1346 § 2040. Creditor having specific lien may be made a party 1347 § 2041. Subpoena to appear and answer 1347 § 2042. Unknown and non-resident parties, how notified 1348 § 2043. Order to take bill as confessed against unknown parties 1348 § 2044. Guardians for minors, etc 1348 § 2045. Bond to be given by guardian 1349 § 2046. On failure of guardian to give bond, clerk to be appointed .... 1349 § 2047. When issue of fact to be tried by jury 1349 CONTENTS OF VOLUME II xxxi MICHIGAN (Stat.— cont.) § 2048. Court may permit till and proceedings to be amended 1350 § 2049. Eights of parties affected by amendment 1350 § 2050. Eeference to take proof of title of complainants 1350 § 2051. Eights of parties, how ascertained, and decree thereon 1350 § 2052. Decree in case the rights of some of the parties do not appear. 1351 § 2053. Eeference to inquire into situation of premises 1351 § 2054. When and how commissioners appointed to make partition .... 1351 § 2055. Vacancies 1352 § 2056. Oath of commissioners 1352 § 2057. How partition to be made 1352 § 2058. Eeport of commissioners 1352 § 2059. — All to meet 1352 § 2060. — Fees and expenses 1353 § 2061. Setting aside report, etc 1353 § 2062. Decree on confirmation of report 1353 § 2063. Persons and cases not affected 1353 § 2064. When court to order sale 1354 § 2065. Partition and sale 1354 § 2066. Order to direct terms of credit, etc 1355 § 2067. Credits, how secured — Separate securities 1355 § 2068. To whom securities to be delivered 1355 § 2069. Complainant to amend his bill before the order for sale 1355 § 2070. Certain moneys to be brought into court 1355 § 2071. Application for moneys brought in 1356 § 2072. Proceedings on application 1356 § 2073. Distribution of moneys among creditors 1356 § 2074. Clerk to procure discharge of incumbrances 1357 § 2075. Other parties not to be delayed 1357 § 2076. Sale of dower or other life estate in premises 1357 § 2077. — Effect of sale 1357 § 2078. Payment to owner of life estate, etc., with his assent 1358 § 2079. Proceedings if consent be not given 1358 § 2080. Proportions to be invested — In ease of dower — Estate for life. .1358 § 2081. Eights of unknown owners to be protected by court 1359 § 2082. Notice of sale by master 1359 § 2083. How conducted 1359 § 2084. Master and guardians not to purchase 1359 § 2085. Eeport of sale 1359 § 2086. Order for conveyances 1360 § 2087. Conveyances to be recorded, their effect 1360 § 2088. Effect of conveyances upon rights of creditors 1360 § 2089. Costs and expenses of proceedings 1360 § 2090. Distribution of proceeds of sale among parties 1360 § 2091. Shares of known infants 1361 § 2092. Shares of unknown and absent owners 1361 § 2093. Tenants in dower or for life, etc 1361 § 2094. Security to refund 1361 § 2095. In what names securities to be taken 1361 § 2096. Clerk to receive and apply moneys, and render account 1362 § 2097. Investment, how made, etc 1362 § 2098. Suits on securities 1362 § 2099. Costs of partition, how assessed and collected 1362 § 2100. Sale of premises of unknown owner valid 1363 § 2101. Costs against complainants on dismissal of bill, etc 1363 § 2102. Appeal 1363 § 2103. Partition or sales of estates of infants by guardians 1363 § 2104. Eeport of guardian and order for conveyances 1364 § 2105. Effect of deeds, infants deemed wards of court 1364 § 2106. If infant a married woman, husband to be guardian 1364 § 2107. Partition by guardians of lunatics, etc 1364 § 2108. Eeleases, when to be authorized 1365 § 2109. Effect of releases 1365 P 2110. Partition when state is interested 1365 xxxii EQUITY PRACTICE MICHIGAN (Stat.— cont.) § 2111. Service of subpoena, etc., on attorney general 1365 § 2112. Claims barred by statute of limitations, etc 1366 § 2113. Compensation for inequality of partition 1366 § 2114. Act applicable to lands held by trustee 1366 § 2115. When courts may divide lands among heirs, etc 1366 § 2116. Interest may be set ofE in a body without subdivision 1366 § 2117. Partition where original parties in interest are fully known .... 1367 § 2118. Court may appoint a receiver in certain cases 1367 § 2119. Duty of court under judgment, in case of married women .... 1367 § 2120. How married women may release interest in estate 1368 § 2121. Release a bar ' 1368 3ULES OF Court § 2122. Bills of complaint 1368 § 2123. Verifying bills of complaint, etc 1369 § 2124. Security for costs by non-residents 1370 § 2125. Process — Form of chancery subpoena — How served 1370 § 2126. Proceedings following the service of subpoena 1371 § 2127. Extending time for pleading, etc 1372 § 2128. Proceedings on default of either party 1372 § 2129. Pleas to a bill and practice thereon 1373 § 2130. Demurrers and practice thereon 1375 § 2131. Answers and the practice thereon 1375 § 2132. Answers in the nature of cross-bills and the practice thereon. .1376 § 2133. Eeplications 1377 § 2134. When cause is at issue 1377 § 2135. Proceedings after cause is at issue — The taking of testimony, etc ; 1378 § 2136. Certain rules governing in cases at law made applicable in chancery causes 1380 § 2137. Amendment of bill and answ-er without leave of court 1380 § 2138. Practice on amendments '. ,. . . . .138] § 2139. Proceedings before commissioners 1382 § 2140. Reports of commissioners and proceedings thereon 1382 § 2141. Appeals from orders of commissioners 1383 § 2142. Restrictions of powers of commissioners 1384 § 2143. Costs — Solicitors' fees taxable, etc 1385 § 2144. Taxation of costs 1386 § 2145. Enrollment of decree, etc 1386 § 2146. Application for rehearing 1386 § 2147. Bills of revivor and supplemental bills 1387 § 2148. Bills of review 1387 § 2149. Practice peculiar to foreclosure cases 1387 § 2150. Practice peculiar to creditors' bills 1389 § 2151. Receivers — Their powers and duties — Practice 1390 § 2152. Moneys in hands of register of court — How deposited and drawn 1391 § 2153. Security by guardian ad litem, etc 1392 § 2154. Assignment by complainant of subject-matter of suit — Proceed- ings thereon 1392 § 2155. General practice of court 1392 § 2156. When rules to take effect 1393 § 2157. Appeals — Settlement of case 1393 § 2158. Common and special order and rules 1396 § 2159. Notes of issue 1397 § 2160. Term calendar — How made up ]397 S 2161. Motions and petitions 1397 § 2162. Stay of proceedings to make motions 1398 i 2163. Motions for continuance 1399 § 2164. Genuineness of documents 1399 § 2165. Court may require parties, etc., to testify 1400 § 2166. Service of papers 1400 CONTENTS OF VOLUME II xxxiii MICHIGAN (Rules— oont.) § 2167. Service of papers by mail 1400 § 2168. Service where there are several defendants or several attorneys. 1401 § 2169. Service on party prosecuting or defending in person 1401 § 2170. Service in exceptional cases 1401 § 2171. Service on party charged with contempt and on party im- prisoned 1401 § 2172. When service required 1402 § 2173. How time computed on service of papers, etc 1402 § 2174. Entitling papers, etc 1402 § 2175. The court files , 1403 § 2176. Agreements to be in writing 1403 § 2177. Affidavit of genuineness of acceptance of service 1403 § 2178. Depositions 1403 § 2179. Compelling return of process 1404 CHAPTER XXXYIII MISSISSIPPI Statutes § 2180. Appeal from final judgments or decree 1405 § 2181. Appeal on overruling demurrer 1405 § 2182. Appeal from interlocutory order 1406 § 2183. How appeal obtained 1406 § 2184. The petition 1406 § 2185. Petition not necessary to the validity of appeal 1406 § 2186. Bonds in civil eases on appeal without supersedeas 1407 § 2187. Bond for supersedeas 1407 § 2188. Appeals to be granted and bonds approved by clerk 1408 § 2189. Bond to be given to perfect an appeal 1408 § 2190. Duty of clerk when appeal is taken 1408 § 2191. Powers of the chancellor 1409 § 2192. The chancellor may try causes in vacation 1409 § 2193. Additional powers of chancellor in vacation 1409 § 2194. Acts clerk may perform at any time 1410 § 2195. Monthly rules, and what then may be clone 1410 § 2196. All acts of clerk subject to approval or disapproval 1411 § 2197. Minutes of proceedings in vacation 1411 § 2198. How such minutes preserved and approved 1412 § 2199. How approval of vacation orders shown 1412 § 2200. Orders of clerk in vacation may be suspended 1412 § 2201. Bonds examined by chancellor 1412 § 2202. How proceedings before clerk to be conducted 1413 § 2203. Abstract of certain decrees furnished circuit clerk 1413 § 2204. Attachment against non-residents 1413 § 2205. — How effects or indebtedness bound 1413 § 2206. — How land levied on 1414 § 2207. — Writs of sequestration 1414 § 2208. — Publication for defendant and his appearance 1414 § 2209. — A complainant to give security after decree, etc 1415 § 2210. Any other title may be confirmed 1415 § 2211. Removing clouds upon titles 1415 § 2212. Title of complainant must be deraigned ; and decrees, in certain eases, recorded as deeds 1416 § 2213. May decree possession, rents, etc 1416 § 2214. Creditors may attack fraudulent conveyances, etc 1416 § 2215. May summon all persons and punish for contempt 1417 § 2216. Issue may be tried by a jury 1418 § 2217. Change of venue in jury cases allowed, etc 1418 § 2218. Power to punish for violation or injunction, etc 1419 k 2219. Venue of suits 1419 § 2220. The writ of sequestration 1419 xxxiv EQUITY PRACTICE MISSISSIPPI (Stat.— eont.) § 2221. — Affidavit required 1420 § 2222. — Bond required of complainant 1420 § 2223. — What the writ to contain, etc 1420 § 2224. — Complainant may bond the property in certain eases 1421 § 2225. — How property disposed of if not bonded 1421 § 2226. — Chancellor or any judge may order the writ and fix amount of bond 1422 § 2227. How unknown persons may be made parties 1422 § 2228. When decrees on publication only are final 1422 § 2229. How such rehearing may be obtained 1422 §2230. Pleadings and practice — Application of rules prescribed 1423 § 2231. Mode of trial 1423 § 2232. Answer not required in certain cases 1423 § 2233. Answer or demurrer may be filed 1424 § 2234. Pleadings to be subscribed 1424 § 2235. Of bills and petitions 1424 § 2236. What bill must contain 1424 § 2237. Exhibits made part of bill 1425 § 2238. Exhibits proved by affidavits or witnesses 1425 § 2239. Demurrers— Form 1425 § 2240. Certificate necessary 1425 § 2241. Demurrer to be set down 1425 § 2242. Answers — Must be full — Charges of bill not denied true 1425 § 2243. Answer under oath unless waived in bill — Answer of a corpora- tion ; 1426 § 2244. Eule requiring two witnesses modified 1426 § 2245. Answer may be made a cross-bill 1426 § 2246. Proceedings to compel answer — Defendant attached 1426 § 2247. Proceedings on refusal to answer 1427 § 2248. Before whom answers of non-residents may be sworn to 1427 § 2249. Eeplication to answer unnecessary 1427 § 2250. Plea set down or replied to 1427 § 2251. Amendments 1427 § 2252. When bill amended without leave 1427 § 2253. Defendant to answer amendment after notice 1428 § 2254. How amendments made 1428 § 2255. Bill to make new parties filed in vacation 1428 § 2256. Multifariousness 1428 § 2257. No objection at hearing for misjoinder 1429 § 2258. When defendant shall plead, answer, or demur, etc 1429 § 2259. Additional time to plead, answer, or demur 1429 § 2260. Exceptions to bills or answers 1429 § 2261. When answer to be taken as true 1430 § 2262. Guardian ad litem 1430 § 2263. Note of evidence made on hearing 1430 § 2264. Bills of exceptions 1430 § 2265. Staying proceedings on bill of review 1430 § 2266. Injunctions; evidence of complainant's equity required 1431 § 2267. Bond required to stay proceedings at law 1431 § 2268. Bond when injunction is not to stay proceedings at law 1431 § 2269. Bonds in particular cases 1432 § 2270. Bond not required of state, county, etc '. 1432 § 2271. Injunction dissolved, unless bill filed by first term 1432 § 2272. Issuance of injunction on a release of errors 1432 § 2273. Chancellor may order restoration of personal property levied on. 1432 § 2274. Similar proceedings in case of property seized under mortgage, etc 1433 § 2275. Motions to dissolve injunctions 1433 , § 2276. Effect of exceptions to answer on motion to dissolve 1434 § 2277. Affidavits read in evidence 1434 § 2278. Effect of dissolution of injunction on the bill 1434 § 2279. Certain injunction bond to operate as a judgment 1434 § 2280. Damages on dissolution of certain injunctions 1434 CONTENTS OF VOLUME II xxxv MISSISSIPPI (Stat.— cont.) § 2281. Suggestion of damages and decree therefor 1435 § 2282. Eeceivers — Necessity for notice of appointment 1436 § 2283. Complainant to give bond before receiver appointed without notice 1436 § 2284. Eeceivers may be appointed or removed in vacation 1436 § 2285. Eeceivers subject to orders of coairt, and may apply therefor in vacation 1436 § 2286. Bond in lieu of receiver 1437 § 2287. Bond of receiver 1437 § 2288. Eeceiver of money paid into court 1437 § S289. Eeceiver of estate of decedent, minor, etc 1438 § 2290. Compensation of receiver 1438 § 2291. New bond required in certain cases ' 1438 § 2292. Masters in chancery 1438 § 2293. Special commissioners 1439 § 2294. Powers of masters 1439 § 2295. Witnesses subpoenaed by masters 1439 § 2296. Fees of masters for copies 1439 § 2297. Bond may be required of master or special commissioner 1439 § 2298. Account ordered in vacation or term-time 1440 § 2299. Proceedings without notice in certain cases 1440 § 2300. Decree for balance after sale of property 1440 § 2301. Decree to operate as judgment of circuit court 1440 § 2302. Decree to operate as a conveyance 1440 § 2303. Eights of infants saved 1441 § 2304. Sheriff to execute decrees ; clerk to issue process 1441 § 2305. Fieri facias or garnishment on decrees for money 1441 § 2306. Sales under decrees 1441 § 2307. Bond to prevent confirmation 1442 § 2308. Court may fix terms of sale 1442 § 2309. Lien on land sold on credit 1442 § 2310. Person making sale not to purchase 1443 § 2311. Hour and adjournment of sales 1443 § 2312. Eeport of sale of land 1443 § 2313. On death of executor, or other person authorized, who shall sell or convey 1443 § 2314. Sales or leases may be reported and confirmed in vacation. . . .1444 § 2315. Provisions applicable to all sales made by order or decree of the court '. 1444 § 2316. Writs grantable by supreme and circuit judges and chancellors. .1444 § 2317. OfScer to restore money on injunction of execution 1445 § 2318. Costs discretionary in chancery 1445 §•2319. Depositions de bene esse may be taken on filing bill in chancery. 1445 § 2320. When depositions in chancery may be taken generally 1446 § 2321. Witnesses examined in open court 1446 § 2322. Oral evidence in chancery to be reduced to writing, when — Bills of exceptions 1446 § 2323. Partition by agreement and by arbitration 1447 § 2324. Partition by decree of chancery court 1447 § 2325. Who may institute proceedings for partition : 1447 § 2326. Proceedings same as in other suits 1448 § 2327. Court may order sale in first instance 1448 § 2328. Controverted title and all equities disposed of 1448 § 2329. Partition without commissioners — Owelty 144S § 2330. Decree appointing commissioners 1449 § 2331. Oath of commissioners 1449 § 2332. Survey made and division into shares 1449 § 2333. Allotment of shares 1450 § ^334. Assignment of shares and owelty 1450 § 2335. Eeport of commissioners 1450 § 2336. Allowance to commissioners 1451 § 2337. Owelty a lien 1451 § 2338. Land sold when not capable of division 1451 xxxvi EQUITY PRACTICE MISSISSIPPI (Stat.— cont.) § 2339. Final decree and decree of confirmation 1451 § 2340. Decrees to be recorded 1451 § 2341. Party evicted to have partition of residue 1452 § 2342. Lien created by party binding on his share 1452 § 2343. Paramount rights not alflfeeted 1452 § 2344. Certain absent parties to have new partition 1452 § 2345. Solicitor 's fee allowed in certain cases 1453 § 2346. Partition of personalty 1453 § 2347. Personal property by justice of the peace 1454 § 2348. — By whom partition made, if ordered 1454 § 2349. — Appeal to the circuit court 1454 § 2350. — Writ to seize property, and proceedings 1454 § 2351. — Sale — How m^de when ordered 1455 CHAPTER XXXIX NEW HAMPSHIEE Statutes § 2352. Suits in equity, etc., to be tried by court, when ^nd how 1456 § 2353. Decision to be in writing, etc 1456 § 2354. Equity powers 1456 § 2355. When disputed title to realty may be settled 1457 § 2356. Discovery when goods withheld 1457 § 2357. Creditor 's bill— When lies 1457 § 2358. — Not in case of property exempt from attachment, etc 1457 § 2359. Lien — How created — If personalty attached 1458 § 2360. Lien— If realty attached ' 1458 § 2361. Eight to attachment or trustee process 1458 § 2362. — Form 1458 § 2363. — Execution of writ 1458 § 2364. — Filing of writ 1459 § 2365. Power to make necessary orders 1459 § 2366. Power to discharge or modify liens 1459 § 2367. Counties in which cause may be heard 1459 § 2368. Appointment of commissioners, masters, receivers, etc. — Powers of single justice 1459 § 2369. Transmission of decrees, orders, etc., to clerk 1460 § 2370. Powers over interlocutory decrees and orders 1460 § 2371. When may be transferred 1460 § 2372. Jury trials 1460 Etjles or Court § 2373. Docket entries 1460 § 2374. Use of depositions •. 1461 § 2375. Notice of taking depositions 1461 § 23'76. — Persons entitled 1461 § 2377. Depositions — How taken 1461 § 2378. — Commission, when may be issued 1462 § 2379. — Certificate when taken abroad 1462 § 2380. — Exceptions — Waiver 1462 § 2381. Continuance — Absence of counsel 1463 § 2382. — Absence of witness 1463 § 2383. — Compliance with order for notice 1463 § 2384. Notice— Publication 1463 § 2385. Disqualification of attorney testifvinn- in cnrse 1463 S 2386. Attorneys — When not to be compelled to testify 1464 § 2387. — Number permitted to examine witnesses 1464 § 2388. Order of proof 1464 § 2389. Motion for new trial — Time for motion 1464 CONTENTS OF VOLUME II xxxvii NEW HAMPSHIRE (Rules— cont.) § 2390. Instructions — Requests 1465 § 2391. Transfer of questions of law — Filing and transmission of papers 1465 § 2392. — Advancing expense of copies — Taxation as costs 1465 § 2393. Questions arising before auditors — Separate reports 1465 § 2394. Reference — Notice of hearing — Commission 1466 § 2395. — Taking out rule— Report 1466 § 2396. — -Duty of clerk as to furnishing copies of rule 1466 § 2397. — Proceedings on failure to produce accounts, produce books or answer ^ 1466 § 2398. — Practice 1467 § 2399. Name of county to appear in proceedings 1467 § 2400. Bills— Form 1467 § 2401. Conciseness — Writing not to be set forth at length 1468 § 2402. Answers— Form 1468 § 2403. — Failure to deny as an admission 1468 § 2404. — Necessity for verification 1468 § 2405. Demurrer or plea 1468 § 2406. Bills — When may be issued — Subpoenas 1468 § 2407. Subpoenas — Service 1469 § 2408. — Service as notice of suit 1469 § 2409. Attested copies of bills, answers and depositions 1469 § 2410. Rule to answer 1469 § 2411. Failure to enter appearance — Decree pro confesso 1469 § 2412. Proceedings on answer 1470 § 2413. Amendments 1470 § 2414. Answer or plea to amended bill — Time for notice to take deposi- tions 1470 § 2415. Exceptions 1470 § 2416. ■ — Answer after exceptions 1471 § 2417. Replications— Form 1471 § 2418. Term of hearing — Continuance 1471 § 2419. Copies to be furnished 1471 § 2420. — Hearing on bill and demurrer 1471 § 2421. Abatements 1471 § 2422. Security for costs 1472 § 2423. Interlocutory orders 1472 § 2424. Attachments for contempt — Issuance in vacation — Arrest 1472 § 2425. Injunctions — Issuance in vacation 1473 § 2426. — Continuance in force without order 1473 § 2427. — Granting by single justice in vacation 1473 § 2428. — May be granted by order instead of writ 1473 § 2429. Receivers 1473 § 2430. — Inventories — Accounts 1474 CHAPTER XL NEW JERSEY Statutes i 2431. Terms — ^When and where held— Continuance 1475 i 2432. Court always open for certain purposes 1475 i 2433. Necessity for filing bill — Endorsement of writ or process — Requisites — Notice 1475 j 2434. Foreclosure of mortgages — How third persons made parties . . . 1476 i 2435. Service of process — Return 1476 i 2436. — On corporation 1477 i 2437. Written appearance— EfCect 1477 \ 2438. Ne exeat — Requisites to issuance — Indorsements 1477 t 2439. Bond for costs— Cash deposit 1477 i 2440. Description of married woman whose Christian name is unknown . 1478 xxxviii EQUITY PEACTICE NEW JEESEY (Stat.— cont.) § 2441. Persons believed to be dead and their heirs, etc., as parties 1478 §2442. — Binding effect of proceedings — Proof — Costs — Belief 1479 § 2443. Persons deemed— Notice 1480 § 2444. — How notice served — Solicitor 's fee 1480 § 2445. Non-appearance — Decree pro confesso 1481 § 2446. Binding effect of decree — Proof of non-service of notice — Security 1481 § 2447. Ex parte afB.davits — Before vphom taken 1481 § 2448. When bond required of complainant — Sequestration 1482 § 2449. Petition and appearance after decree — Bill for accounting — Con- firmation of decree 1482 § 2450. Prayer for answer without oath — Interrogatories — Effect of failure to answer 1483 § 2451. Plea — Demurrer — Answer — Time for filing 1484 § 2452. EiXtension on overruling frivolous demurrer 1484 § 2453. Affidavit that plea or demurrer is not interposed for delay — Certificate of counsel 1484 § 2454. Decree pro confesso for failure to plead, demur or answer — Examination of complainant — Hearing testimony — Stay of proceedings — Opening decree 1485 § 2455. Eeply to plea — Demurrer to be disposed of before proceeding on answer — Answer on overruling demurrer — Costs on de- murrer 1485 § 2456. Exceptions or replication to be filed — Setting cause for hearing — Dismissal — Issues 1486 §2457. Notice for decision on exceptions — Hearing — Reference — Costs. 1486 § 2458. Insufficiency of answer — Further answers — Costs where held insufficient — Decree pro confesso 1486 § 2459. Cross-bills — Answers 1486 §2460. New parties — Supplemental bill unnecessary when — Petition. .1487 § 2461. — When may be made parties 1487 § 2462. When answer to be taken as true — Necessity for evidence. . . .1488 §2463. Interrogatories to complainant — Answers — Failure to answer.. 1488 § 2464. Testimony of witnesses — How taken — Fees 1488 § 2465. Printing of pleadings and evidence — Costs 1489 § 2466. When to be set down for hearing — Dismissal — Costs 1489 § 2467. Hearings in absence of party — Decree 1489 § 2468. Dismissal after hearing commenced — Showing of good cause — Failure of party to prosecute cause 1489 § 2469. Papers in cause to be used at argument or hearing 1490 § 2470. Enrollment of proceedings in cause — Signing — Decree not to contain recitals of pleadings 1490 § 2471. Enrollment unnecessary on dismissal by consent 1490 § 2472. Duty of clerk as to enrollment — Time — Fees 1491 § 2473. By whom enrollment to be made — Successor of clerk 1491 §2474. Signature to enrollment — Successor of chancellor 1491 § 2475. Decree effective as judgment at law — Decrees or orders for money execution — Liens on land — Filing of abstract 1491 §2476. Decree for conveyance of lands effective as conveyance 1492 § 2477. Sequestration — Writ of fieri facias — Issuance of capias ad satis- faciendum — Enforcement of decree by injunction 1493 § 2478. Writ of fieri facias — From what time binding 1493 § 2479. Execution of writs, orders, etc., on death of officer 1493 § 2480. Sale— Writ of fieri facias 1494 § 2481. Deeds — Payment of proceeds 1495 § 2482. Writ of supersedeas 1495 § 2483. Sale when whole sum of mortgage not due 1495 § 2484. Entry of satisfaction of decree 1496 § 2485. Owner of unrecorded lien bound by decree — How made party. .1497 § 2486. Fees in certain cases 1497 § 2487. Allowance of gross amount in lieu of dower or other estate, by consent — Proceedings where consent not given — ^Investment of proceeds of sale 1498 CONTENTS OP VOLUME II xxsix NEW JERSEY (Stat.— eont.) § 2488. Set-ofifs 1498 § 2489. Sale when property liable to deteriorate 1498 § 2490. Surplus when mortgagor deceased 1499 § 2491. Orders and decrees pending hearing 1499 § 2492. Proviso 1500 § 2493. Proceedings against absent, concealed, unknown or deceased defendants — Unknown heirs 1500 §2494. ■ — ^Eules and practice governing — Sale of dower and curtesy. .1502 § 2495. — Effect of decree 1502 § 2496. Stay of proceedings at law — Deposit 1503 § 2497. — Mixed actions — Deposit or security 1503 § 2498. — InsufEcieney of security — Additional security 1503 § 2499. — Eeference to determine suflfieiency of security 1504 § 2500. — Before verdict— Affidavit 1504 § 2501. Attachment on disobedience of injunction — Contempt — Punish- ment 1504 § 2502. Discovery— When lies 1504 § 2503. — Power to compel — Costs not alloned in certain cases 1505 § 2504. — Verification of bill — Order to debtor to appear 1505 § 2505. Order forbidding payment of debt or transfer of money or property 1505 § 2506. Examination of debtor and witnesses — Appointment of receiver pendente lite — Authority and powers of receiver 1506 § 2507. Depositions — Eight to use on final hearing — Notice 1506 § 2508. Consent rules— Entry 1507 § 2509. Amendments — Costs and terms 1507 § 2510. Pleadings and decrees — Notice of filing and signing 1507 § 2511. Matters of law — Certification to supreme court — Jury trial. . . .1507 § 2512. Fees of masters for advising with chancellor 1507 § 2513. Deposit and investment of moneys brought into court.- 1508 § 2514. — How to be invested — Apportionment of interest 1508 §2515. — Appointment of person to supervise — Compensation 1509 § 2516. Contempt to enforce process — Fine and commitment 1509 § 2517. Costs — Discretion as to award — How payment enforced 1509 § 2518. Certain proceedings abolished 1509 § 2519. Certain rules, orders, decrees and reports not to be registered — Effect of filing 1510 § 2520. Chancellor to make rules 1510 § 2521. Issue of execution — Necessity for revival 1510 § 2522. Disability or absence of chancellor — Powers and duties of master 1511 § 2523. Counsel fees — Taxation as costs — Fees in foreclosure proceed- ings 1511 § 2524. Fees for searches — Foreclosure — Partition 1511 § 2525. Sale of lands — Application of surplus to payment of judgments. 1512 § 2526. — Eeport of officer — Confirmation 1512 § 2527. Powers and duties — Eeference 1513 § 2528. Eeference — Taking evidence — Settlement and signing of report. 1513 §2529. — Employment of stenographers — Expense — Apportionment. . .1514 § 2530. Districts — Time and place of sittings — Eules 1514 § 2531. Power to punish for contempt 1514 § 2.532. Eeference 1515 § 2533'. Taking of testimony — Eeports 1515 § 2534. Stenographers — Employment — Apportionment of expense 1515 § 2535. Determination of masters to whom reference to be made — Compensation- — Eules 1515 § 2536. Who may appeal — Time 1516 § 2537. Effect of appeal on injunction 1516 § 2538. — Not to continue injunction after dissolution 1516 § 2539. Appeal from adjudication of contempt 1517 § 2540. Eeasons assigned for decree to be submitted in writing 1517 § 2541. Transmission of papers to lower court 1517 xl EQUITY PEACTICE NEW JEESEY (Stat.— cont.) § 3542. Continuing injunction in force after vacation or dissolution — Stay of proceedings 1517 § 2543. Death of party not to abate suit 1518 § 2544. Death of one of several parties — Procedure by survivors — Eepre- sentatives — Order to revive — Amendments 1518 § 2545. Death of sole plaintiff — Substitution of representative — Amend- ments 1520 § 2546. Death of sole defendant — Representative as party — Amend- ments 1520 § 2547. Effect of failure to revive on death of sole plaintiff or defend- ant 1521 § 2548. Bill of revivor 1521 § 2549. Death of receiver not to abate action 1522 § 2550. Termination of limited administration not to abate suit 1522 § 2551. When may be taken de bene esse — Notice 1523 § 2552. Subpoena — Compensation 1523 §2553. Oath of witness — Eetention of deposition — Certificate 1523 § 2554. Oath of officer as to sealing 1524 § 2555. Examination of parties — Order 1524 § 2556. Commission to examine non-resident witness de bene esse 1524 § 2557. — Procedure 1525 § 2558. Notice of application 1525 § 2559. — When shorter notice sufSces 1525 § 2560. Oath of commissioners 1526 § 2561. Examination — To be reduced to writing and signed 1526 § 2562. Examination to be annexed to commission — Sealing — Mailing — Opening — Indorsing — Filing .- . 1526 § 2563. Affidavit where first received by party or his attorney 1527 § 2564. Transmission where taken in foreign state or nation 1527 § 2565. Taking testimony of foreign witness without commission 1528 § 2566. Depositions of non-resident parties .- 1529 § 2567. Proceedings to which act applies 1529 § 2568. Taking stenographically 1529 § 2569. Documentary evidence 1530 § 2570. Transmission to circuit court where taken in cause pending in supreme court 1530 § 2571. Depositions as evidence 1530 § 2572. Objections and exceptions 1531 § 2573. Expenses — Taxing as costs 1531 § 2574. Eight to copies 1531 § 2575. Taking out commission not to stay proceedings 1531 § 2576. Typewritten transcripts 1531 § 2577. Absent witnesses or parties ] 53 1 § 2578. Stipulation — Procedure 1532 § 2579. When either party may testify — Evidence of deceased party may be read 1533 § 2580. Who may take deposition 1533 §2581. Depositions sworn to and signed — Disposition of deposition. . .1533 § 2582. Oath of person transmitting deposition 1534 § 2583. Taken stenographically 1534 § 2584. Documentary evidence 1534 § 2585. Terms — Hearings on demurrers or pleas — Eeturn day of process 1 535 § 2586. Causes transferred to proper court — Eecord 1535 § 2587. When transfer made 1535 § 2588. Eules 1535 § 2589. Appellation 1535 § 2590. Satisfaction of decrees 1536 § 2591. Sale of inchoate right of dower 1537 § 2592. Powers of chancery court 1538 § 2593. Payment of proceeds of sale to devisees or trustees under will. 1538 § 2594. Proceedings on devise from parent to child where share limited over 1539 CONTENTS OF VOLUME II xli NEW JEESEY (Stat.— eont.) § 2595. Sale of estates by do\Yer and curtesy 1539 § 2596. Order for payment of costs and expenses 1539 § 2597. Lienors as parties — Effect of decree on existing liens 1539 § 2598. Liens on undivided interest of party 1540 § 2599. "Who may be made parties 1540 § 2600. Admitting creditors having liens as parties 1540 § 2601. Payment of proceeds into court in certain cases 1540 § 2602. Proceedings where two or more parties request to hold shares in common 1541 § 2603. Payment of proceeds of sale if inchoate right of doner is sold. 1541 § 2604. Proceedings where tenant presumptively dead — Unknown heirs or devisees 1542 § 2605. If partition impracticable course to pursue — Eeal estate sold. .1543 § 2606. Eight to maintain bill to quiet title — Eequisites of bill 1543 § 2607. Tickets to issue with subpoena 1544 § 2608. Decree for costs not to issue against defendant in certain cases. 1545 § 2609. Answer of defendant claiming interest 1545 § 2610. Issues of law — New trial — ^Determination of claims 1545 § 2611. Decree — Conclusiveness — Minors and persons non compos mentis 1546 § 2612. Place of trial of issues of law 1546 § 2613. Suit by dedicator after conveyance 1546 § 2614. Service of process in case of absent defendants 1547 § 2615. Procedure in cases of missing defendants — Notice where no appearance — Persons bound by decrees 1547 § 2616. Proceedings to quiet title tq submerged lands 1549 § 2617. Proceedings by remainderman 1550 § 2618. — Ticket 1550 § 2619. — Decrees pro conf esso — Costs 1551 § 2620. — Answers claiming interest 1551 § 2621. — Issues of law — Determination 1551 § 2622. — Decrees — Minors and incompetents 1552 § 2623. Proceedings to determine existence and validity of covenants. .1552 § 2624. — Ticket 1553 § 2625. — Decrees pro conf esso — Costs — Determination 1553 § 2626. — Answer claiming existence of covenants 1554 § 2627. — Issues of law — New trial — Determination 1554 § 2628. • — Decrees conclusive — Infants and incompetents 1554 §2629. Notice of sale posted — Advertised in two newspapers 1555 § 2630. Publication in German papers 1556 § 2631. Adjournment of sales 1556 § 2632. — Powers of master 1556 § 2633. Public or private sale — Terms — Confirmation 1556 § 2634. Application of act 1557 § 2635. Section 2629 Modified 1557 § 2636. Lost deeds 1557 EULES OP COUET § 2637. Eegular terms — Hearing on contested motions 1558 § 2638. Order of hearing causes 1558 § 2639. Assignment of day for final hearing 1559 § 2640. When causes to be set down for hearing — Priority 1559 § 2641. What are motion-days 1559 § 2642. Motions to be made on motion-days 1560 § 2643. Preference 1560 § 2644. Opening and closing arguments 1560 § 2645. Abstract of pleadings and points 1561 § 2646. Causes not heard unless set down at regular term 1561 § 2647. When cause to be noticed for hearing 1561 § 2648. Notices — Service 1561 I 2649. Exceptions to master 'a report — Hearing 1561 xHi EQUITY PRACTICE NEW JEESEY (Rules— cont.) § 2650. Issue on plea — Argument 1561 § 2651. Dismissal after issue or proofs — Notice and motion — When de- fendant may notice cause for argument 1562 § 2652. Dismissal after hearing commenced — Failure of complainant to proceed 1562 § 2653. Hearing after equities settled by interlocutory decree 1562 § 2654. Submission without argument 1563 § 2655. May be taken in vacation 1563 § 2656. Common and special rules — What are — Entry 1563 § 2657. Service of notices, motions, summonses and orders 1564 § 2658. Eeference in foreclosure proceedings — Report — AfSdavit of amount due 1564 § 2659. Eeference on decree pro confesso — Notice unnecessary — Report. 1564 § 2660. • — Answers by other encumbrancers — Report — Exceptions 1565 § 2661. — Notice for report on encumbrance 1565 § 2662. — Controversies between defendants 1566 § 2663. Notice of orders nisi to confirm reports 1566 § 2664. Orders to produce documents, etc. — Notice of subsequent pro- ceedings 1566 § 2665. Failure to take decree pro confesso within four months— Service of order 1566 § 2666. Encumbrancers as parties — Answers — Failure of complainant to proceed 1567 § 2667. Eeference without setting cause down for hearing in partition and foreclosure proceedings in certain cases 1567 § 2668. Dismissal for want of prosecution 1568 § 2669. Order for inspection — Application 1568 § 2670. Hearing of petition — AfRdavits — Examination 1568 § 2671. Duty as to accounts of funds or investments 1568 § 2672. Deposit of funds 1568 § 2673. Fees— Duty as to payment 1569 § 2674. Enrollment of proceedings 1569 § 2675. Dockets 1569 § 2676. Unsigned orders — Nunc pro tunc orders 1569 § 2677. Oath 1570 § 2678. Assignment of time and place for hearing — Summons to appear — Service — Proceedings on failure to appear 1570 § 2679. Examination of witnesses — Expense 1570 § 2680. Special masters — When reference to be made to — Nomination. 1571 § 2681. Disqualification of master to sell 1571 § 2682. Fees of master 1571 § 2683. Eequisites of pleadings and other papers — Endorsement 1572 § 2684. Eecitals of documents 1572 S 2685. Foreclosure bills — Eecitals of bond or mortgage 1572 § 2686. Name of parties or solicitors and residence to be appended — Sufficiency of service 1573 § 2687. Insertion of names of defendants in subpoena 1573 § 2688. Copies of tickets to be annexed to subpoena 1573 § 2689. Order to appear 1573 § 2690. Proceedings where husband served and wife absent 1574 § 2691. Publication until after return day without special order pro- hibited 1574 § 2692. Publication or service of notice 1574 § 2693. Eequisites of notice 1574 § 2694. Inquiry as to address of absent defendant 1575 § 2695. Eequisites to decree pro confesso against absent defendant 1576 § 2696. Preceding rules to apply to all proceedings by petition 1577 § 2697. Persons authorized to administer oath 1577 § 2698. Eight of infant to defend — Petition for guardian 1577 § 2699. Guardian for infant defendant on application of complainant. .1578 § 2700. — In suits for satisfaction of mortgages 1578 §2701. Eight to amend — Before subpoena — After subpoena 1579 CONTENTS OF VOLUME II xliii NEW JERSEY (EuiEs — cont.) § 2702. Amendment of bill after exceptions to answer — After plea or demurrer 1580 §2703. Costs where amendment requires further answer 1580 § 2704. Amendments after appearance by defendant 1580 § 2705. Amendment after demurrer not going to equity of bill 1580 § 2706. Alterations not to be made on original bill on amendment 1580 § 2707. Exceptions on ground of impertinence, scandal, or insufficiency - — How taken 1581 § 2708. Motion for decision on exceptions — Answer to exceptions — Amendments , 1581 § 2709. Notice of answer to exceptions — Amendment of bill 1581 § 2710. Motion for decision on unanswered exceptions 1582 § 2711. Exceptions for scandal or impertinence — How taken 1582 § 2712. Filing and service — Answer — Exceptions — Report — Appeal — Costs 1582 § 2713. Taking of testimony — Notice 1583 § 2714. Depositions — Agreement on examiner 1583 § 2715. Disqualification of examiner 1583 § 2716. When complainant to begin taking of testimony 1583 § 2717. When defendant to begin taking of testimony 1583 § 2718. Adjournment — Any examiner may take testimony — Only one examination to proceed at same time except on commission . . 1584 § 2719. Rebutting or counter rebutting testimony 1584 § 2720. Adjournment — Notice unnecessary 1584 § 2721. Extension of time 1584 § 2722. — Written consent or order necessary 1585 § 2723. Legal holidays, etc., not computed 1585 § 2724. Examination of party in certain cases 1585 § 2725. Exhibits — Inspection and custody — Copies 1585 § 2726. Taking of depositions — Method and form 1585 § 2727. Taking of testimony when issue joined on plea 1586 § 2728. Duties of examiner as to testimony taken 1586 § 2729. — Transmission and filing 1587 § 2730. Subpoena to witnesses — Service 1587 § 2731. Documentary evidence not presented before examiner not con- sidered 1587 § 2732. Application for commission — Notice 1588 § 2733. Joining in commission — Notice — Appointment of commissioners - — Delay in suing out — Order to fix time for return 1588 § 2734. Names of witnesses to be inserted — Interrogatories and cross- interrogatories 1588 § 2735. When to be printed— Exhibits 1589 §2736. Application for order for printing — Expense — Requisites 1589 § 2737. Enrollment 1590 § 2738. Objections to order or decree — Piling 1590 § 2739. Award of costs — Objection 1590 § 2740. Costs for setting down matters for hearing 1590 § 2741. Failure to move after notice 1590 § 2742. Failure to bring matter on for hearing after notice 1591 § 2743. Where hearing or argument ordered off 1591 § 2744. Amendments or motions due to party 's own fault — Success on motion 1591 § 2745. Counsel fee for atten (lance on master or examiner 1591 § 2746. Division of fees between examiner and stenographer — Testimony taken before vice chancellor or advisory master 1591 § 2747. Mortgage cases — Proceedings at law on bond 1592 § 2748. Service of subpoena to answer — Mileage of clerk 1592 § 2749. Drawing or acknowledging deed by guardian 1592 § 2750. Partition and foreclosure suits — Searches 1592 § 2751. Search fees not allowed in certain cases 1593 § 2752. Issuance on cost allowances 1593 § 2753. To be directed to sheriff 1593 § 2754. Issuance for deficiency — Subrogation 1593 xliv EQUITY PRACTICE NEW JEESEY (Rules— eont.) § 2755. Eeturn of execution 1594 § 2756. Not to issue witliin ten days of decree 1594 § 2757. Verification 1594 § 2758. Order to show cause to be issued before staying public work. . . .1594 §2759. Petition — To whom presented — Application for dissolution. .. .1594 § 2760. Order to show cause — Service — Hearing 1595 § 2761. Motion to dissolve before answer 1595 § 2762. Motion to dissolve on answer 1596 § 2763. Cross-examination of afliiants 1596 § 2764. Injunction to stay proceedings at law 1596 § 2765. Injunction to stay ejectment 1597 § 2766. Bond on ex parte injunction or restraining order 1597 § 2767. Issuance after answer filed — Notice 1597 § 2768. Endorsement of denial 1598 § 2769. Writ— Within what time to be issued 1598 § 2770. Issuance on determination of vice chancellor 1598 § 2771. Injunction for relief against common nuisance 1598 § 2772, Time between teste and return 1598 § 2773. Custody— Bond 1599 § 2774. Bond — Appearance 1599 § 2775. Eule for examination on interrogatories — Discharge on failure to enter 1599 § 2676. Settlement of questions regarding interrogatories — Eeport on examination 1599 § 2777. Service on adverse party — Filing 1600 § 2778. Use on hearing of order to show cause 1600 §2779. Affidavits for extensions — Service — Connter-aflidavits 1600 § 2780. Service 1600 § 2781. Deceased persons — Service on personal representative 1600 § 2782. Petition — Eequisites 1601 § 2783. — Service of copy 1601 § 2784. Petition to stay enrolling of final decree 1601 § 2785. Cause submitted without argument by consent 1601 § 2786. Order for re-hearing not to stay proceedings on interlocutory decree 1602 § 2787. Ee-hearing of decrees signed on advice of vice chancellor 1602 §2788. Interlocutory decrees not stayed without order 1602 § 2789. Process not to issue on decree without order in certain cases. .1602 § 2790. Eequisites of appeal — Service 1602 § 2791. Petition for appeal to be presented or appeal deemed waived. .1602 § 2792. Petitions for surplus — Presentment — Eeceipt on payment 1603 § 2793. Issuance of summonses 1603 § 2794. Petition — Eequisites — ^Verification 1603 § 2795. — Piling— Notice 1604 § 2796. Eeference to special master in absence of consent to payment. .1604 § 2797. Conditions precedent to order for payment 1605 § 2798. Bond 1605 § 2799. Procedure 1605 § 2800. Sums bearing interest 1605 § 2801. Eeference — Eeport — Commissioners 1606 § 2802. Proceedings by married women — Sale 1607 § 2803. Dower and curtesy — Sale — Notice 1607 § 2804. — Waiver of notice 1607 § 2805. Ascertainment of sum to be paid in lieu of dower or curtesy. ..1607 § 2806. Master making report not to make sale 1608 § 2807. Failure of complainant to prosecute 1608 § 2808. Inventory and account 1608 § 2809. — Eeport of delinquency — Eeference of inventories 1609 § 2810. Examination of inventories and accounts — Eeport — Examina- tion of witnesses 1609 § 2811. Bond for appearance 1610 § 2812. Eeferences — Application — Notice > 1610 § 2813. — Proceedings after 1610 CONTENTS OF VOLUME II xlv NEW JERSEY (Eules— cont.) § 2814. Time and place for hearing— Notice 1610 § 2815. Trial 1611 § 2816. Examination of witnesses 1611 § 2817. Competency of evidence — Rulings .1612 § 2818. Postponement — Absent witnesses — Argument 1612 § 2819. Depositions de bene esse 1612 § 2820. Duty of vice chancellor as to hearing 1613 § 2821. Eules governing advisory masters — Ee-hearing 1613 § 2822. Duties of advisory masters 1613 § 2823. Time for report by masters 1613 § 2824. Applications referred to vice chancellors 1614 § 2825. Report of sheriff — Confirmation — Objections 1615 § 2826. Eight to set up matter in answer — Against co-defendant 1615 § 2827. Form of replication 1617 § 2828. Certain allegations omitted in bills and answers 1617 § 2829. Requisites of demurrer 1617 § 2830. Issues joined on plea 1617 § 2831. Order to revive — Procedure 1618 § 2832. Procedure for joining new parties 1618 § 2833. Death of sole complainant 1619 § 2834. Accounts — Examinations 1619 § 2835. Motions— Notice , 1620 § 2836." Duty as to— Accounts — Payment to clerk 1620 § 2837. Requisites to filing 1621 § 2838. Eight to appear by solicitor 1621 § 2839. Notice— Issuance of writ 1621 § 2840. Procedure 1622 § 2841. Notice of appointment and to present clainjs 1622 § 2842. Application 1623 § 2843. Amount of allowance in foreclosure proceedings 1623 § 2844. Order— Eeceipt of clerk 1624 § 2845. "When returnable 1624 § 2846. Arguments — When may be brought on for hearing 1624 CHAPTER XLI PENNSYLVANIA Statutes § 2847. Conformity to practice of United States supreme court 1626 § 2848. Fees 1626 § 2849. Amendments 1626 § 2850. Verification of bill and answer— Effect 1627 § 2851. Lien of decrees — Revival and continuance 1627 § 2852. Issues of fact on revival 1627 § 2853. Jurisdiction — How questioned — Waiver of trial by jury — Dis- missal of bill for lack of proof 1627 § 2854. Remedy at law pleaded — Effect of decision — Costs 1628 § 2855. Appeal — Raising question of remedy at law — Transfer of cause to law side — Costs 1628 § 2856. Abatement — Death of plaintiff — Letters of administration not taken out 1629 § 2857. Mistake in name of party 1629 § 2858. Change in name of parties 1630 § 2859. Striking out names of parties 1630 § 2860. Change in form of action — Costs 1630 § 2861. Service on attorney general 1630 § 2862. Service on non-residents 1631 § 2863. Service where defendant not found 1632 § 2864. Order or process of contempt not to issue — Extent to which service required 1632 § 2865. Service where bills filed by mortgagors, persons claiming under judgment sales, etc 1633 xlvi EQUITY PEACTICE PENNSYLVANIA (Stat.— cont.) § 2866. Service on mortgagee or plaintifif in judgment not residing in county where mortgage recorded or judgment entered 1633 § 2867. Injunction by Philadelphia courts against use or erection of public works 1634 § 2868. Bond prerequisite 1634 § 2869. Bond not required of commonwealth, city or county 1634 § 2870. Appeal from order granting preliminary injunction 1635 § 2871. Appeal from refusal to grant preliminary injunction 1635 § 2872. Hearing of appeals in injunction proceedings 1635 § 2873. Eeference to master — Ascertainment of purparts — Allotment — Payments 1635 § 2874. Examination of report — Approving, correcting or setting aside. 1636 § 2875. Effect of decree 1636 § 2876. Partition sale 1637 § 2877. Decree — Payment of purchase money — Bond 1637 § 2878. Securing widow 's interest 1638 § 2879. Eight of purchaser to possession 1638 § 2880. Specific performance of written contracts relating to realty — - Petition — Answer — Decree 1638 § 2881. Recording decree 1639 § 2882. Execution of conveyance 1639 § 2883. Specific performance of parol contracts for sale of realty 1639 § 2884. Specific performance of written contracts of lunatics and drunkards 1640 § 2885. Recording decree 1640 § 2886. Execution of conveyance by committee 1641 § 2887. Specific performance of parol contracts of lunatics and drunk- ards 1641 § 2888. Order or decree for performaiice or rescission of contract of lunatic or drunkard , . 1641 § 2889. Limitation of proceeding for specific performance 1642 § 2890. Appeal from decree directing performance — Supersedeas — Bond 1642 § 2891. Reforming defective certificate of acknowledgment 1643 § 2892. Procedure 1643 § 2893. Right of plaintiff 1644 § 2894. Place of filing 1644 § 2895. Eorm and contents 1644 § 2896. Verification by complainant 1645 § 2897. Who may make oath 1645 § 2898. Interrogatories ^ 1645 § 2899. Issue of scire facias 1645 § 2900. Service of bill and interrogatories prerequisite 1645 § 2901. Capias 1646 § 2902. Service on other than defendant 1646 § 2903. Costs 1646 § 2904. Matters of account — Perfecting appeal 1646 § 2905. Supersedeas — Payment of money involved — Bond 1647 §2906. Assignment or delivery of personalty involved — Bond 1647 §2907. Order or decree directing execution of conveyance — Bond 1647 § 2908. Injunction — Bond 1648 Rules or Court § 2909. Courts always open for certain purposes 1648 ■ § 2910. Plothonotary 's office to remain open 1649 § 2911. Piling, printing and endorsing bill 1649 § 2912. Service of copy of bill on defendants — Notice to appear 1649 § 2913. Rule to answer — Notice 1650 § 2914. Additional time to answer 1650 § 2915. Suits by persons under disability — Guardians ad litem 1650 § 2916. Service on defendant 1650 § 2917. Service on husband and wife — Service on non-residents 1650 CONTENTS OP VOLUME II xlvii PENNSYLVANIA (Rules— cont.) § 2918. Service on corporations — On commonwealth 1650 § 2919. Service on non-resident — Subpoena 1651 § 2920. Service by publication 1651 §2921. Entry of suit on docket — Entry of defendant's appearance — Failure to appear 1651 § 2922. Printing of pleadings — Suits by poor persons — Injunction proceedings ' 1652 § 2923. Contents of bill — Conciseness — Eecitals from documents — Scan- dal and impertinence 1652 § 2924. Address of bill 1653 § 2925. Paragraphs of bill — Statement of facts — Omission of formal averments 1653 § 2926. Appearance and answer where direct relief not sought 1653 § 2927. Infants or persons not sui juris as parties 1654 § 2928. Persons not in jurisdiction as parties 1654 § 2929. Persons not made parties — Procedure as to 1654 § 2930. Numerous parties 1654 § 2931. Trustees as parties 1654 §2932. Heirs-at-law as parties in suits to execute trusts of wills. .. .1655 §2933. Suit on joint and several demand against several — Cross-bill. .1655 § 2934. Want of parties — Objection at hearing 1655 § 2935. Want of parties — Objection in answer — Argument — Amendment or dismissal of bill 1656 § 2936. Dismissal of bill by agreement 1656 § 2937. Rule on defendant to demur or answer — Decree pro confesso — Attachment to compel answer 1656 § 2938. Decree pro confesso — Setting aside 1657 § 2939. Demurrer — Answer in part — Issues of fact 1657 § 2940. Demurrer — Afladavit— Form 1657 § 2941. Argument on demurrer 1658 § 2942. Demurrer not covering bill — Answer covering matter de- murred to 1658 § 2943. Amendment of bill where plea or demurrer allowed 1658 § 2944. Demurrer overruled — Answer — Frivolous demurrer — Decree pro confesso 1658 § 2945. Answer — Form — Contents 1659 § 2946. Specific interrogatories — Filing — Service — Answering 1659 § 2947. Refusal to answer interrogatories — Objections and exceptions. .1660 § 2948. Cross-bills — Form — Service 1660 § 2949. Oath to answers — Who may take 1661 § 2950. Time of filing 1661 § 2951. Failure to file amended answer — Hearing on exceptions — Addi- tional time for filing exceptions — Printing exceptions — Costs.1661 § 2952. Allowance of exception — Amendment of answer — Compelling better answer • 1662 § 2953. Scandal and impertinence — Exceptions 1662 § 2954. Filing — Rule to reply — Form of replication 1662 § 2955. Amendment of bill on motion 1663 § 2956. Amendment before answer or demurrer — Notice 1663 § 2957. Amendment after answer or demurrer — After replication 1663 § 2958. Failure to file and serve amendments 1664 § 2959. Demurrer or answer to amended bOl 1664 § 2960. Amendment of answer — After replication — After cause set down 1664 § 2961. Bill of revivor — Supplemental bill — Joinder of new parties — Service on new parties — Joinder of personal representative of deceased party 1665 § 2962. Depositions de bene esse — Commission — Interrogatories — Cross- interrogatories 1665 § 2963. Return of commission — Notice — Opening — Exceptions — Hear- ing ] 666 § 2964. Final interrogatory 1666 xlviii EQUITY PRACTICE PENNSYLVANIA (Eules— cont.) § 2965. Form of affidavits and depositions 1667 §2966. Interlocutory applications — Examination of witness in court.. 1667 §2967. Taking testimony — Examiner — Eules to take testimony 1667 § 2968. Hearings — Eeferees and masters — Calendar — Eeception of evi- dence — Presence of judge 1667 §2969. Conduct of trial — Postponements — Costs — Continuances 1668 § 2970. Findings of fact and law— Bequests— Piling 1668 § 2971. Entry of decree nisi 1668 § 2972. Exceptions— Filing 1669 § 2973. Waiver of objections 1669 § 2974. Hearing of exceptions — Eulings 1669 § 2975. Appeal — Assignment of error — Necessity of exception 1669 § 2976. Dismissal of bill on close of complainant's evidence 1669 § 2977. Hearing — Findings and decree — Exceptions 1669 § 2978. Eeferees — Fees — Adjournments 1670 § 2979. Appointments — Charges — Taxation as costs 1671 § 2980. Issues of fact— Verdict 1671 § 2981. Preparation as in actions at law 1671 § 2982. Law judge may grant — Notice of application 1672 § 2983. Docketing motions, rules etc. — Notice to solicitors 1672 § 2984. Prothonotary — Powers as to motions and applications 1672 § 2985. Motions — Applications to court — Docketing — Notice — Hearing — Grant ex parte 1673 § 2986. Application for extension of time — Notice — Order 1673 § 2987. Philadelphia — Eules and orders as to pleadings — Time of ex- piration 1673 § 2988. Costs— Taxation— Collection 1673 § 2989. Preliminary injunction — Granting on bill and affidavits — Hear- ing — Evidence 1674 § 2990. Cautionary orders — Granting injunction without notice — Disso- lution 1674 § 2991. Form— Eeeitals 1674 § 2992. Drawing — Service of copy — Entry — Notice 1674 § 2993. Decree for payment of money — Docketing minute 1675 § 2994. Compelling obedience to orders and decrees 1675 § 2995. Decree or order for possession — ^Writ of assistance 1675 § 2996. Final process to execute decree — Execution — Attachment — Sequestration 1676 § 2997. Persons not parties — Process for and against 1676 § 2998. Correction of errors in orders and decrees 1677 §2999. Petition — Signature — Verification — Time for granting 1677 § 3000. Eules of court — Additions and amendments 1677 § 3001. English chancery rules 1677 CHAPTER XLII EHODE ISLAND Statutes i 3002. Eeturn of subpoenas and citations 1678 i 3003. Eeturn-day and service in special cases — Hearing of motions for preliminary injunctions 1678 i 3004. Preliminary injunctions — Motion — Verification of bill — Notice of motion in subpoena 1678 i 3005. Entry of appearance — Additional time 1678 i 3006. Demurrer, plea or answer — Filing — Exceptions to answer — Eeplication 1679 i 3007. Docketing bill — Assignment for trial 1679 j 3008. Failure to reply or except — Setting down cause for hearing. . .1679 i 3009. Eeplication 1679 CONTENTS OF VOLUME II xlix EHODE ISLAND (Stat.— cont.) § 3010. Decree pro confesso — Motion to set aside — Extension of time to answer 1679 § 3011. Supplemental matter adding to or amending bill — Bringing in heirs and representatives 1680 § 3012. Persons interested becoming parties 1680 § 3013. Cross-bill — Setting up matter in answer 1680 § 3014. "Waiver of oath to answer— Effect 1680 §3015. Subpoena to non-resident defendant — Service 1681 § 3016. Commissions to take testimony — Powers and duties of com- missioners — Oral testimony — Reference to master — Eeport..l681 § 3017. Process — Procedure — Decree — Power of superior court to change 1682 § 3018. Declaratory decrees 1682 § 3019. Special case 1682 § 3020. Decrees affecting contingent interests 1683 § 3021. Construction of will or trust deed — Expenses and counsel fees.. 1683 § 3022. Conveyance by master in chancery 1683 § 3023. Numbering paragraphs of bill and answer — Filing copy 1684 § 3024. Appeal — Time of filing — Fees for transcript — Stay of proceed- ings — Sale of real estate 1684 § 3025. Transcript — Piling — Presenting to trial judge — Return to clerk.1685 § 3026. Transmitting papers to clerk of supreme court — Docketing cause — Transcript not allowed — Objections to transcript .... 1685 § 3027. Orders by trial court protecting rights pending hearing of appeal 1686 § 3028. Report of facts by trial judge 1686 § 3029. Hearing additional evidence on appeal 1686 '§ 3030. Orders by supreme court protecting rights of parties pending the appeal 1686 § 3031. Hearing appeal — Affirmance — Reversal — Modification of decree —Decrees and orders 1686 § 3032. Reversal or modification of decree — Affirmance — ^Remand — Decrees 1687 § 3033. Appeals from injunctions or orders appointing receiver or order or decree for sale of property 1687 § 3034. Certifying to supreme court bills concerning wills and trust deeds — Subsequent proceedings 1688 § 3035. Certifying questions of law to supreme court — Stay 1688 § 3036. Adding parties in supreme court 1688 § 3037. Process for execution of final decree — When taken out — Waiver of appeal 1688 § 3038. Proceedings in vacation 1689 § 3039. Sessions on motion-days 1689 § 3040. Suits concerning realty 1689 § 3041. Other suits 1689 § 3042. Submission of issues to jury 1690 § 3043. Manner of making — Removal for non-appearance 1690 § 3044. Proof of service 1690 § 3045. Issue of writ — Property covered — Service — Return — Ad damnum — Holding property 1691 § 3046. Submission of pending suits 1691 § 3047. Submission of cause before pendency 1692 § 3048. County in which rule may be entered 1692 § 3049. Procedure, expenses, report, execution on decree — Agreement between parties as to , 1692 § 3050. Entry of decree on report '. 1692 § 3051. Discharging and recommitting rule and report — Continuance fees ' 1693 § 3052. Oath of referee 1693 § 3053. Referees — Administering oaths — Compelling attendance and testimony by witness — Issue of summons 1693 § 3054. Report where realty involved — Plat — Recording — Expenses .... 1693 § 3055. Auditors — Appointment — Powers and duties 1693 1 EQUITY PEACTICE EHODE ISLAND (Stat.— eont.) § 3056. — Oath — Notice of meeting — Adjournments — Meetings when more than one appointed 1694 § 3057. — Failures of parties to appear — Ex parte proceeding 1694 § 3058. — Eeport — Time for making — Failure to report in time 1694 § 3059. — ■ Exceptions to report — Time for filing 1694 § 3060. — Costs — Fees of auditor 1694 § 3061. — Discharge — ^Eecommitment of report 1695 § 3062. — Decision on report — Jury trial 1695 § 3063. "Waiver of right to jury trial 1695 § 3064. Masters in chancery — Appointment — Term — Eules of procedure.1695 § 3065. Issuance of writs by masters, auditors and referees 1695 § 3066. Stenographers — Employment by masters, auditors and referees — Costs of reports, etc 1696 §3067. Subpoenas to witnesses — Issued by masters, auditors, etc.... 1696 § 3068. Surety for costs — When required 1696 § 3069. Bill to redeem — Procedure 1696 § 3070. Bill to foreclose— Procedure 1696 § 3071. Venue of suit 1697 § 3072. Service by publication or mail — When allowed — Manner 1697 § 3073. Service on person temporarily absent 1697 § 3074. — Failure to appear — Appointment of agent 1698 § 3075. Setting ofe shares 1698 § 3076. Bringing interested persons before court — Service — Decree — Submission of questions to jury 1698 § 3077. Partition between holders of fee and remaindermen — Persons not in being — Appointment of agent — Expenses 1699 § 3078. Apportionment of costs 1699 § 3079. Lien upon property 1699 § 3080. Notice to non-resident, absent or unknown parties — Duty of commissioners 1700 § 3081. Eeport of commissioners — Decree — Eecording 1700 § 3082. Division of property into lots — Streets — Consent of parties. . . .1700 Eules of Court § 3083. Subpoena — Form, seal and signature 1701 § 3084. Alias process 1701 §'3085. Execution — Form — Attachment — Sequestration 1701 § 3086. Writ of assistance 1702 § 3087. Process to enforce decree — Issue to persons not parties 1702 § 3088. Attachment to compel answer where bill taken as confessed. . . .1703 I 3089. Frame of bill — Prayer for relief — Prayer for process — Names and residences of parties 1703 § 3090. Amendment before answer, plea or demurrer 1704 § 3091. Amendment after answer, plea or demurrer — After replication —Order— Costs 1704 § 3092. Amendment introducing supplemental matter 1705 § 8093. Motion to amend — Filing amendments 1705 § 3094. Eeeitals in bill — Scandal and impertinence in pleadings — Strik- ing out — Costs 1705 § 3095. Scandal and impertinence — Exceptions — Signing and filing — Examination and report by master 1705 § 3096. Defect of necessary or proper parties — ^Decree. . . ' 1706 § 3097. Numerous parties — Decree 1706 § 3098. Trustees as parties in suits concerning real estate 1706 § 3099. Parties against whom direct relief not sought — Appearance and answer — Costs 1706 § 3100'. Persons under disability — Guardians ad litem 1707 § 3101. Certificate of counsel— Affidavit of defendant 1707 § 3102. Demurrer or plea to whole or part of bill — Demurrer, plea and answer to different parts , 1707 § 3103. Answer to matter covered by demurrer or plea — Specifying grounds in demurrer 1708 CONTENTS OF VOLUME II li EHODE ISLAND (Eules— cont.) § 3104. Matters contained in — Defenses which may be set up ] 708 § 3105. Refusal to answer interrogatories 1708 § 3106. Special replication — Amendment of bill 1708 § 3107. Supplemental answer after amendment of bill 1709 § 3108. Admission of facts not denied 1709 § 3109. Before replication — After replication 1709 § 3110. Separate answers — Costs 1709 § 3111. Better answer where exceptions allowed 1710 § 3112. Answer to cross-bill — Beading and using 1710 § 3113. Framing and settling issues — Presenting questions of fact — Piling copies of issues 1710 § 3114. Time for granting — Notice a'nd hearing 1710 § 3115. Affidavit 1711 § 3116. Number — Acceptance of appointment — Piling 1711 § 3117. Hearing — Setting time and place — Notice — Adjournment — De- lay by master 1711 § 3118. Compelling attendance of witness before master 1712 § 3119. Proceedings before master — Examination of parties, docu- ments and witnesses — Issue of commissions 1712 §3120. Accounting before master — Examination of accounting party. .1712 § 3121. Use of affidavits, depositions and documents made or used in court 1713 § 3122. Eeport — Submitting draft to parties — Objections — Piling report — Exceptions 1713 § 3123. Correction of errors ■• 1713 § 3124. Drafting decree— Form— Eecitals 1713 § 3125. Eecording pleadings or decree where cause settled or bill dismissed by consent 1714 § 3126. Practice in absence of applicable rule 1714 CHAPTEE XLIII TENNESSEE Statutes § 3127. General rule 1715 § 3128. Counterpart summons 1715 § 3129. Issue of process to other counties 1715 § 3130. Transfer of cause to another district 1715 § 3131. Venue in particular cases 1715 § 3132. Hearing in circuit court 1716 § 3133. Bill, petition or motion , 1716 § 3134. Address of bill 1716 § 3135. Contents — Prayers — Formal averments 1717 § 3136. Answer 1717 § 3137. Revising pleadings — Striking out — Costs 1717 § 3138. Waiver of answer under oath — Answer as evidence 1717 § 3139. Answer — Incorporating matters of defense — Pleading specially.1717 § 3140. Demurrer — When necessary 1718 § 3141. Setting down matters of demurrer for arguments — Costs 1718 § 3142. Waiver of objection to jurisdiction by answer 1718 § 3143. Eeplication after answer not permitted 1718 § 3144. Filing answer as cross-bill 1718 § 3145. Belief to be granted 1718 § 3146. Multifariousness, misjoinder or nonjoinder — Motion to dismiss or demurrer 1718 § 3147. Multifariousness — Demurrer — Amendments 1719 § 3148. Uniting distinct matters in bill 1719 § 3149. Making of issue — Time for trial 1719 § 3150. Filing bill 1719 Ui EQUITY PEACTICB TENNESSEE (Stat.— eont.) § 3151. Oath to bill— Who may take 1719 § 3152. Verification of bill out- of state 1719 § 3153. Amendment of bill without leave — Notice — Costs 1720 § 3154. Amendment with leave 1720 § 3155. Amendment at any stage in discretion of coujt 1720 § 3156. Answer to amended bill 1720 § 3157. Defect of parties — Saving rights in decree — Amendment 1720 § 3158. Misjoinder — Objection at hearing 1721 § 3159. Subpoena to answer and copy of bill — Issue by clerk 1721 § 3160. Form of subpoena to answer 1721 § 3161. One to each county 1721 § 3162. One copy bill to county in which bill filed 1721 § 3163. Service of copy of bill with counterpart subpoena 1721 § 3164. Certified copy of bill to issue on demand 1722 § 3165. Process to name all defendants in county 1722 § 3166. Service of process 1722 § 3167. Execution— Eeturn 1722 § 3168. Eeturn day — Original process 1722 § 3169. —Other process 1722 § 3170. Service of original subpoena — Five days before return day. . . .1722 § 3171. — ■ Less than five days before return day 1722 § 3172. When personal service dispensed with 1723 § 3173. — Stating in bUl, affidavit or return 1723 § 3174. Entry of order on rule docket requiring defendant to appear. .1723 § 3175. Publishing copy of order of publication 1723 § 3176. Time of making order 1724 § 3177. Contents of order 1724 § 3178. Description of unknown parties 1724 § 3179. Proof of publication ^ 1724 § 3180. Decree pro confesso proceedings in contempt 1724 § 3181. Attachment for contempt 1724 § 3182. — Eeturn 1724 § 3183. Second attachment— Forfeiture of bond 1725 § 3184. Commitment 1725 § 3185. Plea or demurrer after attachment 1725 § 3186. Procedure after defendant committed 1725 § 3187. Discharge 1725 § 3188. Extending time to answer 1725 § 3189. When bill taken as confessed 1725 (1) Where personal service had 1725 (2) Where service by publication 1725 (3) Where process of contempt executed 1726 (4) Where plea or demurrer overruled 1726 (5) Failure to answer on exceptions to answer 1726 § 3190. Setting cause for hearing 1726 § 3191. Order pro confesso— Effect 1726 § 3192. Suits against infants and persons non compos ' 1726 § 3193. Other exceptions — Proceedings . . .- 1726 § 3194. Depositions 1727 § 3195. Setting order aside ■ 1727 § 3196. Non-residents or unknown persons not served 1727 § 3197. Appearance and defense by other after judgment by default. .1727 i 3198. Attachment cases 1727 § 3199. When decree absolute where personal service not had ;1727 § 3200. Death of defendant before service 1728 § 3201. Time within which answer to be made 1728 § 3202. Security from complainant 1728 § 3203. Title under decree 1728 § 3204. Manner in which defense made 1728 § 3205. Questioning- jurisdiction 1729 § 3206. Grounds for dismissal of bill 1729 § 3207. Amendments 1729 CONTENTS OF VOLUME II liii TENNESSEE (Stat.— cont.) § 3208. Grounds of demurrer — Plea for misjoinder or nonjoinder 1729 § 3209. Kule to proceed with cause 1729 § 3210. — Failure to proceed 1729 § 3211. Motion by defendant to dismiss for default 1730 § 3212. Eelief of complainant from default 1730 § 3213. Setting down plea or demurrer for argument — Issue on plea — Finding for complainant 1730 § 3214. — Term at which set 1730 § 3215. Answer where plea or demurrer overruled 1730 § 3216. Plea or demurrer after attachment 1730 § 3217. Costs on plea or demurrer 1730 § 3218. Administering oath to answer.. 1731 § 3219. — Special commissioner 1731 § 3220. Filing answer — Notice — Time for exceptions 1731 § 3221. Time for trial 1731 § 3222. Exceptions— Duty of clerk— Notice to defendant 1731 § 3223. Filing answer — Notice to complainant — Appeal 1731 § 3224. — Hearing appeal in vacation 1732 § 3225. Cost on exceptions 1732 § 3226. Taking proof pending appeal on exceptions 1732 §3227. Decree pro confesso where answer insuflScient 1732 § 3228. Answer to original bill before answer to cross-bill 1732 § 3229. Waiver of oath to answer to cross-bill 1732 § 3230. Vacation — Powers of chancellor 1733 § 3231. — Carrying into effect order or decree 1733 § 3232. — Notice of proceedings to adverse party 1733 § 3233. — Limits on power of chancellor to act 1733 § 3234. — Appointment of commissioners to take accounts 1733 § 3235. — Appointment of process servers 1733 § 3236. Chancellor 's control of proceedings in master 's office 1733 § 3237. Incompetency of chancellor — Power of chancellor of adjoining division 1734 § 3238. — AfSdavit of applicant 1734 § 3239. Rules, notices, etc. — E'ntry by clerk 1734 § 3240. — Time for making 1734 § 3241. — Entry on rule docket 1734 § 3242. Clerk and master — Power to act at ofSce 1734 (1) Entry of suggestion of death and issue of process to revive 1734 (2) Order of publication 1735 (3) Making and setting aside orders pro confesso 1735 (4) Appointment of guardians ad litem 1735 (5) Making orders for taking of depositions 1735 (6) Opening causes for proof 1735 (7) Other acts 1735 § 3243. Rule days 1735 § 3244. Notice of filing of answer — ^Duty to give 1735 § 3245. Notice of rules— Duty to give 1735 § 3246. Alteration of rules by clerk and master 1735 § 3247. Revivor on death or marriage of party — Scire facias 1735 § 3248. — Issue of scire facias 1736 § 3249. — Defense 1736 § 3250. — Contents of scire facias 1736 § 3251. — Filing bUls 1736 § 3252. Hearing on bill and answer — Setting by complainant 1736 § 3253. — Setting of causes by clerk 1736 §3254. Causes at issue without replication filed — Trial 1736 § 3255. Entry of proceedings in clerk's memorandum book 1737 § 3256. Duty of chancellor 1737 § 3257. Confirming sale of land 1738 § 3258. Decrees — Entry by clerk — Signing minutes 1738 liv EQUITY PRACTICE TENNESSEE (Stat.— cont.) § 3259. Appeal from decree entered in vacation 1739 § 3260. Examination of file 1739 § 3261. Order as to answer by demurrant 1739 § 3262. Issue of final process by clerk 1740 § 3263. Custody of decrees by clerk 1740 § 3264. When decree takes effect 1740 § 3265. Eeinstatement of cause 1740 § 3266. Power to grant 1741 § 3267. Issue on first application only 1741 § 3268. Issue to stay sale of realty under mortgage or trust deed 1741 § 3269. — Notice 1742 § 3270. — Allegations • 1742 § 3271. — Delay of proceedings for trustee or mortgagee 1742 § 3272. — Hearing — Decree 1742 § 3273. Second application 1742 § 3274. Indorsement of refusal on bill — Erasure 1742 § 3275. Sealing fiat — Directing to clerk 1743 § 3276. Injunction— Bond 1743 (1) — Against judgment at law 1743 (2) — Before judgment at law 1743 § 3277. — Penalty of bond 1743 § 3278. — -Appointment of commissioner to take security 1743 § 3279. ■ — Ascertainment of damages — Trial of issues 1744 § 3280'. Service of injunction on evading defendant 1744 § 3281. Motion to dissolve or modify injunction in vacation — Notice.. ..1744 § 3282. Motion to dissolve injunction — Time for making 1744 § 3283. — Where answer excepted to 1744 § 3284. Decree on dissolution — Amount 1744 § 3285. Dissolution of injunction — Refunding bond 1745 § 3286. Decree for delivery of attached property or payment of damages 1745 § 3287. Power of chancellor as to extraordinary process in vacation — Reduction of levy or bond 1745 § 3288. Receivers — Appointment in vacation 1745 §3289. —Bond 1745 § 3290. Application of provisions to all proceedings 1746 § 3291. Application of provisions 1746 § 3292. General rules applicable 1746 § 3293. Testimony to be taken in writing — Exceptions to rule 1746 § 3294. Time for taking testimony 1746 § 3295. Continuance — Cause open for proof — Time allowed 1746 § 3296. Proof of exhibits 1747 § 3297. Depositions to writings — Annexing 1747 § 3298. Depositions — Time for taking 1747 § 3299. Re-examination of witness 1747 § 3300. Deposition de bene esse 1747 § 3301. Interrogatories 1747 § 3302. — Failure to answer 1747 i 3303. Eight to jury trial 1748 § 3304. Time for trial — Summoning jury 1748 § 3305. Demand for jury after cause ready 1748 § 3306. Framing issues 1748 § 3307. Trial— Findings of jury 1748 § 3308. Attendance of witnesses 1748 § 3309. Report of clerk and master — Filing 1749 § 3310. Order of reference — Failure to obey 1749 § 3311. — Penalty 1749 § 3312. — Execution without delay 1749 § 3313. Clerk and master to pay over money 1749 § 3314. Recital of facts 1749 § 3315. — When proper 1749 § 3316. Enforcement of decrees, etc 1750 CONTENTS OF VOLUME II Iv TENNESSEE (Stat.— cont.) § 3317. Attachment 1750 § 3318. — When service of copy of decree not prerequisite 1750 i 3319. —Bail not allowed 1750 § 3320. — Discharge on habeas corpus 1750 § 3321. — Notice of hearing on writ of habeas corpus 1750 § 3322. Effect of decree 1750 §3323. Appointment of commissioner to execute conveyances, etc 1750 § 3324. Decree as conveyance release or acquittance , 1751 § 3325. Writ of sequestration 1751 § 3326. Enforcement of execution of decree by other means 1751 § 3327. Sale of property — Fixing terms in decree — ^Freedom from re- demption — Disposal of surplus 1751 § 3328. Staying proceedings 1752 § 3329. Security 1752 § 3330. Interlocutory proceedings 1752 § 3331. Pinal decree 1753 § 3332. Dismissal for want of prosecution 1753 I 3333. Power of chancellors to make 1753 § 3334. Power of individual chancellors 1753 § 3335. Who may procure writ 1753 § 3336. Time for petition — Supersedeas 1753 § 3337. Supersedeas— Bond 1753 § 3338. Notice — Service 1754 § 3339. Grounds for issue of writ 1754 § 3340. Appeal to supreme court 1754 § 3341. Bond — Time for giving — Pauper oath 1754 § 3342. Appeal in nature of writ of error 1755 § 3343. — Bond— Proceedings 1755 § 3344. Writ of error 1755 § 3345. — Supersedeas 1755 § 3346. — Issue without supersedeas — Bond 1755 § 3347. — Application to circuit clerk 1755 § 3348. — Application to supreme court clerk 1756 § 3349. — Application to appellate court or judge 1756 § 3350. — Bond 1756 §3351. Bill of exceptions — Including rulings and evidence 1756 § 3352. — Setting out excluded evidence 1756 § 3353. Depositions and exhibits as part of record 1756 § 3354. Findings of fact — Appeals and writs of error — How taken — Security — Trial in supreme court 1757 § 3355. Decree — Issue of final process — Eeturn 1757 § 3356. Lien of decree 1757 § 3357. Rules 1758 § 3358. Transfer of causes from supreme court 1758 § 3359. Appeals from decisions in transferred causes 1758 § 3360. When allowed 1758 § 3361. Attachment and injunction 1758 § 3362. Other creditors joining 1758 § 3363. Setting aside conveyances 1759 § 3364. Eef erenee to master — Costs 1759 § 3365. Subjecting claims due non-residents 1759 EuLEs OP Court § 3366. Stating residence of parties in bill 1759 § 3367. Filing exhibits 1760 § 3368. Indorsing date of filing 1760 § 3369. Exceptions for scandal or impertinence — Eeport by clerk and master — Appeal 1760 § 3370. Exceptions to answer for insufficiency — Procedure 1760 § 3371. Exceptions not to delay 1761 § 3372. Plea or demurrer where time granted to answer 1761 Ivi EQUITY PRACTICE TENNESSEE (Eules— cont.) § 3373. Bill of costs to be annexed 1761 § 3374. Notice to take depositions — Proof I 1761 §3375. —Service 1761 § 3376. Taking proof— Time allowed 1761 § 3377. Exceptions to depositions 1761 § 3378. Ee-exaraination of witnesses 1762 § 3379. Writing and dating 1762 § 3380. Fastening after entry 1762 § 3381. Account — Fixing time for taking — Notice 1762 § 3382. Time for taking account and reporting — Notice to parties. . . .1762 § 3383. — Service of notice — Failure to attend 1763 § 3384. AdjournmeAts 1763 § 3385. Service of notice where parties numerous 1763 § 3386. Making report 1763 § 3387. Reference to record in report 1763 § 3388. Filing report 1763 § 3389. Failure of party to attend — Closing evidence — Opening evidence.1763 § 3390'. Examination of witnesses 1764 § 3391. Ee-examination by master 1764 §3392. Exceptions to report — Filing — Setting down for argument. .. .1764 § 3393. —Form and contents 1764 § 3394. Confirmation of report 1764 § 3395. Hearing on exceptions 1764 § 3396. Notice of reference for account 1765 § 3397. Cross-examination of witness after decree set aside 1765 § 3398. Effect of sworn answer, on motion to dissolve 1765 § 3399. Notice of motion to dissolve 1765 § 3400. Motion to dissolve injunction — Exceptions to answer 1765 § 3401. Protection of rights of defendant 1766 § 3402. Arrest and fine where contempt committed in presence of court.1766 § 3403. Procedure where contempt not committed in presence of court. .1766 § 3404. Commitment of witness refusing to answer , . .1767 § 3405. Attachment against defendant not answering 1767 § 3406. Clerk and master failing to comply with order of reference. . . 1768 § 3407. Payment of costs 1768 § 3408. Costs on continuance by consent 1768 § 3409. Time for hearing 1768 § 3410. Preparation of papers 1768 § 3411. Brief 1769 § 3412. Eeturn day — Appearance by defendant 1769 §3413. — Where process executed within five days before return day. 1769 § 3414. ■ — Where service had by publication 1769 § 3415. Alias or mesne process — Eeturn day 1 769 §3416. — Wlere process executed within five days before return day. 1770 § 3417. Opposing organization 1770 § 3418. • — Answer under oath 1770 § 3419. — Effect of petition and answ-er 1770 § 3420. ■ — Evidence 1770 § 3421. Application for organization — Docketing 1770 § 3422. Payment of fees ; 1770 § 3423. Supplying lost papers 1771 § 3424. When proceedings enrolled 1771 § 3425. When authorized 1771 § 3426'. Petition — Verification — Presenting 1771 § 3426a. Motion that complainant's solicitor produce Ms authority. . . .1771 § 3426b. Motion that security for costs be furnished 1772 § 3426c. Motions that exhibits be filed 1773 § 3426d. Motions that husband or wife answer separately 1773 § 3426e. Motion that defendant be granted further time to answer. . . .1773 § 3426f. Motion that order pro confesso be set aside 1774 § 3426g. Motion that complainant be ruled to take steps 1774 CONTENTS OF VOLUME II Mi CHAPTEE XLIV VERMONT Statutes ; 3427. Jurisdiction 1775 i 3428. -Rules 1775 j 3429. Who are 1775 ) 3430. Jurisdiction 1775 ^ 3431. Testimony 1775 ) 3432. Stated terms 1775 j 3433. Court always open 1776 i 3434. Eeturnable where 1776 § 3435. Address 1776 i 3436. Process— Signed how 1777 ) 3437. Process — Served how 1777 i 3438. Eecognizanee required 1777 ] 3439. Notice to non-resident defendants 1777 I 3440. Publication 1777 ) 3441. Default— Further notice 1777 ! 3442. Writ of sequestration 1778 j 3443. Security for costs 1778 \ 3444. Prolixity 1778 j 3445. Set-off 1778 I 3446. Answer not evidence in criminal prosecution 1778 I 3447. By chancellor '. 1778 ] 3448. Hearing, when held 1778 I 3449. Commission 1779 I 3450. Petition— Notice 1779 § 3451. Oaths ■ 1779 § 3452. Examination 1779 § 3453. — How conducted 1779 § 3454. Testimony written 1779 § 3455. Appointment of special masters 1779 § 3456. Trials— Evidence 1780 I 3457. Witnesses — Contempt 1780 ^ 3458. Notice of hearing 1780 I 3459. Admission of evidence 1780 § 3460. Eeport 1780 i 3461. Decree — Appeal 1780 j 3462. Exceptions 1780 j 3463. Death does not abate 1781 ) 3464. Petition for revival 1781 I 3465. Service — Appearance 1781 j 3466. Answer of representative 1781 \ 3467. Eepresentative may amend 1781 j 3468. Co-plaintiff's representative made defendant 1781 i 3469. Defendant's p'etition 1782 j 3470. Order 1782 j 3471. Surviving defendant 's petition 1782 ) 3472. Procedure thereon 1782 \ 3473. Proceedings when cause does not survive 1782 i 3474. Issue 1783 i 3475. Bond required 1783 i 3476. — Exceptions 1783 i 3477. — To stay ejectment ,. 1783 § 3478. Damages > 1784 \ 3479. Bond filed 1784 i 3480. Security on dissolution 1784 \ 3481. Damages on final decree 1784 ! 3482. Of goods attached 1784 I 3483. Notice of petition 1785 i 3484. Eeceiver's bond 1785 Iviii EQUITY PRACTICE VEEMONT (Stat.— cont.) § 3485. Order for possession , 1785 § 3486. Borrowing money 1785 § 3487. Sufficiency determined 1786 § 3488. Delivery for prosecution 1786 § 3489. Prosecution 1786 § 3490. Petition and decree 1786 § 3491. Procedure by bill 1788 § 3492. Joinder of attaching creditors 1788 § 3493. Entitling and entry 1788 § 3494. Chancellor out of ofSce may sign 1788 § 3495. Record 1788 § 3496. Enforcement 1788 § 3497. Writ of possession 1788 § 3498. Copy recorded in land records 1789 § 3499. Eedemption if copy not recorded 1789 § 3500. Decree for conveyance of land 1789 § 3501. Motion for appeal 1789 § 3502. Interlocutory orders after appeal .' . , 1790 § 3503. Files transferred 1790 I 3504. Hearing 1790 § 3505. Remanding 1790 § 3506. Accounting 1790 § 3507. Court may rehear 1791 § 3508. Petition— Service 1791 § 3509. Efeect 1791 § 3510. Files 1791 § 3511. Amendments — Additional testimony 1791 § 3512. Procedure 1792 § 3513. Sustained when 1792 § 3514. Rules 1792 § 3515. Procedure 1792 § 3516. Set-off and transfer not abridged 1793 § 3517. By delivering copy of process and order 1793 § 3518. Delivery of copies — By whom made — How proved 1793 § 3519. Levying creditor may apply to chancery 1793 § 3520. Proceedings to extend lien 1794 § 3521. Record of decree 1794 § 3522. Subpoena — Form '. ■. 1794 § 3523. Service of bills and petitions — Appearance 1795 § 3524. Powers of judges of supreme eovirt — Disqualifications 1795 Rules op Cotjet § 3525. Court always open for business — Powers and duties of chancel- lors 1796 § 3526. General requisites 1796 § 3527. Introductory part— Form 1796 § 3528. Certain clauses may be omitted — Counter statements — Inter- rogatories 1797 § 3529. Prayer 1797 § 3530. Prayer for process 1797 § 3531. Verification 1797 § 3532. Signature of solicitor 1797 § 3533. Time for appearance 1798 § 3534. Right to amend — Copies to be furnished 1798 § 3535. Additional parties 1798 § 3536. Certificate of counsel 1799 § 3537. Demurrer or plea to part of bill — Specific denial of fraud or combination charged 1799 § 3538. Answer instead of plea or demurrer 1799 § 3539. Filing — Setting down for hearing — Determination for defend- ant of facts stated in plea 1799 § 3540. Overruling of demurrer or plea — Decree — Discovery 1799 CONTENTS OT' VOLUME II lix VEEMONT (Etjlbs — cont.) § 3541. Amendment where plea or demurrer allowed 1800 § 3542. Sufficiency of plea or demurrer 1800 § 3543. Demurrer to state grounds 1800 § 3544. Answer required irrespective of interrogatories — To what alle- gations unnecessary — Admissions by failure to answer 1800 § 3545. Certain clauses may be omitted 1801 § 3546. Time for answer of defendant to cross-bill 1801 I 3547. Verification 1801 § 3548. Waiver of or limitations on answer under oath 1801 § 3549. Answers — Cross-bills 1802 § 3550. Allegations in answer seeking affirmative relief — Pleadings on part of complainant thereon 1802 § 3551. Exceptions — Procedure — Costs 1803 § 3552. Eight to amend — After replication or cause set down for hear- ing 1803 § 3553. General and special replications — Time for filing — Dismissal for want of prosecution — When general replication considered pleaded 1804 § 3554. Special masters — Eef erence — Trial by court — Evidence — Un- reasonable delay in bringing cause on for hearing 1804 § 3555. Statement of case — Brief 1805 § 3556. Unnecessary to recite pleadings or report of master — Intro- ductory clause 1806 § 3557. Signature of solicitor — Interlineations or erasures — Submission of final decrees to solicitor for adverse party 1806 § 3558. Time for entry of decree pro confesso on failure to appear — Entry after six months 1806 § 3559. Time for recording of decree — Suspension — Petition — Process suspended for certain time — Eehearing on particular ques- tions 1807 § 3560. Procedure in general 1807 § 3561. Time for filing— Requisites 1809 § 3562. Direct application to chancellor required in certain cases — Bond 1809 § 3563. Notice — Issuance of temporary injunction in certain cases 1810 § 3564. Requisites to dissolution — Answer 1810 § 3565. Unnecessary recitals of documents prohibited — Expunging — Costs 1811 § 3566. Requisites to reference for scandal or impertinence 1811 § 3567. Eight to permit proceedings at time other than that prescribed by rules ] 811 § 3568. Requisites — Examination of accounting party 1812 § 3569. Requisites — Notice of filings 1812 § 3570. Duty to furnish copies to adverse party 1812 § 3571. Legibility — Accuracy — Signature of solicitor 1812 § 3572. Eight of successful party to costs — Terms on non-compliance with rules 1812 § 3573. Form of verification of bill or answer — Oath to witnesses 1813 §3574. Enforcement of orders and process by contempt — Procedure. .1813 § 3575. Eight of chancellor under powers conferred on chancery court. .1814 CHAPTER XLV VIEGINIA Statutes i 3577. Procedure 1815 i 3578. Jurisdiction to partition lands .- 1815 I 3579. Eight to have shares of two or more laid off together 1816 j 3580. Procedure where partition impracticable — Dower rights 1816 i 3581. Decree to vest title 1817 Ix EQUITY PRACTICE VIEGINIA (Stat.— cont.) § 3582. Proceeds of sale as personalty 1817 § 3583. Shares of unknown parties 1817 § 3584. Effect of partition or sale on lessee's rights 1818 § 3585. Partition of personalty 1818 § 3586. Issuance — Affidavit — Procedure — Injunction — Eeceivers 1818 § 3587. Jurisdiction — Eight to remedy 1819 § 3588. What may be tried at— Who may hold 1821 § 3589. County or corporation in which suits in equity may be brought. 1822 § 3590. Place where cause of action arose 1823 § 3591. In what courts suits may be brought — Transfer to Eichmond court 1823 § 3592. On what affidavit order of publication may be entered — When and by whom entered 1824 § 3593. Docket in which rules are entered 1825 § 3594. When there is no clerk to take a rule 1825 § 3595. Nature of rules— How given 1825 § 3596. When defendant may give rule to file declaration or bill — When plaintiff non-suited — Damages 1825 § 3597. When clerk to dismiss suit 1825 § 3598. When fact of defendant 's non-residence to be returned and suit abated 1826 § 3599. When plaintiff may amend declaration or bill, or file amended bill, etc. — Proceedings thereon 1826 § 3600. Proceedings on petition 1826 § 3601. Proceedings when cross-bill is filed 1827 § 3602. Misjoinder of parties — Abatement as to party improperly joined 1827 § 3603. How and when exception to jurisdiction to be taken — When pleas in abatement filed 1827 § 3604. Omission of protestation 1827 § 3605. Form of demurrer or joinder in demurrer 1827 § 3606. What defects not to be regarded on demiirrer 1828 § 3607. Argument of demurrer or plea in equity — If overruled, how de- fendant proceeded against 1828 § 3608. Trial by jury of plea in equity 1828 § 3609. When answer may be filed 1829 § 3610. Argument of exceptions to answer 1829 § 3611. Proceedings when exceptions sustained 1829 § 3612. Necessity for proof of writings 1829 § 3613. Effect of an answer as evidence — When oath thereto waived. . .1829 § 3614. Pleadings may be sworn to before clerk — Affidavit of belief sufficient 1830 § 3615. Judgment or decree by confession in vacation — How entered — Validity 1830 § 3616. Default— Order for inquiry of damages 1830 § 3617. Although bill taken for confessed, plaintiff may proceed against defendant by attachment, etc 1831 § 3618. When suit in equity set for hearing 1881 § 3619. When suit in equity heard as to part of defendants — How plain- tiff compelled to mature his cause or have it dismissed — New parties 1831 § 3620. Effect of death of a several party where cause of action sur- vives — Death of joint defendant 1832 § 3621. Judgment or decree on death pending appeal, error or super- sedeas 1832 § 3622. For and against whom scire facias may be sued out — When suit revived on motion — When new party may have continuance or amend pleadings 1832 § 3623. Scire facias may be issued in vacation, and order of revival en- tered at rules 1833 § 3624. Where party, whose powers cease, is defendant, how suit pro- ceeded in 1833 CONTENTS OF VOLUME II Ixi VIEGINIA (Stat.— cont.) § 3625. When cause may be stricken from docket after five years 1833 § 3626. Decree in a suit, where number of parties exceeds thirty, and one of them dies or marries 1834 § 3627. Accounts 1834 § 3628. — Publication of notice 1834 § 3629. Attendance of witnesses 1835 § 3630. Submission of questions to court for instruction 1835 § 3631. Adjournment 1835 §3632. Adjournments to other counties or corporations — Depositions .. 1835 § 3633. Eeport 1836 § 3634. Hearing cause on report 1836 § 3635. Clerk to deliver original papers 1836 § 3636. Who may take— Certification 1836 § 3637. Non-resident witnesses 1837 § 3638. Commission — Necessity — For deposition of non-resident 1837 § 3639. Notice — When may be returned and read 1838 § 3640. Notice to non-residents — Service 1838 I 3641. Betaking deposition 1839 § 3642. Certifying, returning and filing — Endorsement of time of re- ceipt 1839 § 3643. May be read by either party 1839 § 3644. How taken after judgment or decree from which appeal lies. . .1839 § 3645. Perpetuation of testimony 1839 § 3646. Interrogatories — Answers 1840 § 3647. Production of books and writings 1841 § 3648. Effect of two preceding sections on bill in equity 1842 § 3649. Trial of issue out of chancery 1842 § 3650. Decree or order for sale — How sale made — Bond of commis- sioner 1842 § 3651. Bond condition precedent to advertising sale — Certificate to ad- vertisement — Fees of clerk 1843 § 3652. When purchaser relieved of liability for purchase money or rent *. 1843 § 3653. Penalty for false certificate 1844 § 3654. Payment of purchase money 1844 § 3655. Eules against purchaser, receiver or commissioner for payment of purchase money 1845 § 3656. Who may execute decree or order for sale 1846 § 3657. Commissions for selling and collecting 1847 § 3658. Appointment of general receivers — ^Duties 1847 § 3659. Securities — Taking and keeping — Power of receivers over 1847 § 3660. How dividends and interest collected and invested 1848 § 3661. Interest on loans 1848 § 3662. Suits against receivers 1848 § 3663. Commissioners to execute deeds or writings — Effect 1849 § 3664. Eeinstatement of cause for purpose of ordering deed 1849 § 3665. Interlocutory decrees and orders in vacation 1850 § 3666. Submission of cause in vacation — Decree — Effect 1850 § 3667. Power of judge in vacation to enforce obedience to decrees and orders 1851 § 3668. Injunction to protect plaintiff in suit for specific property. . . .1852 § 3669. Bill of review— Within what time allowed — Award of injunc- tion 1852 § 3670. Injunctions 1852 § 3671. Jurisdiction of injunctions 1853 § 3672. ■ — General jurisdiction of judges to award 1853 § 3673. — Eefusal — Power of judge of court of appeals to award 1853 §3674. To what clerk, judge's order for injunction directed 1854 § 3675. Equity of injunction bill to be shown by affidavit or otherwise — Notice to adverse party of application 1854 § 3676. Court or judge awarding injunction to restrain removal of prop- erty out of state, may require forthcoming bond 1854 § 3677. Injunction bond 1855 Ixii EQUITY PRACTICE ATIRGINIA (Stat.— cont.) § 3678. How surety in forthcoming bond may obtain additional security. 1855 § 3679. Dissolution of injunction in vacation 1856 § 3680. Damages on dissolution 1856 § 3681. Dismissal of injunction bill 1856 § 3682. What not reversible error ■. 1857 § 3683. — Want of answer — Want of replication — Depositions 1857 § 3684. Correction or amendment of judgment or decree 1857 § 3685. Duty of appellate court in cases remediable under preceding section 1858 § 3686. In what cases petitions for appeal, writ of error, or super- sedeas may be awarded 1859 § 3687. When prohibited 1860 § 3688. Limitation of appeals, writs of error and supersedeas 1860 § 3689. Eehearing 1861 § 3690. Jurisdiction to enforce — Power to decree sale 1862 § 3691. Jurisdiction as affected by amount of judgment 1862 § 3692. Limitations 1862 § 3693. After demurrer sustained not considered a waiver 1863 § 3694. Power to grant — Disregard of non-prejudicial errors 1863 CHAPTER XL VI WEST VIRGINIA Statutes § 3695. Orders and decrees made out of court — Certifying to clerk. . . .1865 § 3696. When allowed 1865 § 3697. Order — Form and contents — Publication — Newspaper — Posting. 1866 § 3698. Defendants failing to appear — Personal service on non-resi- dents—Return 1866 § 3699. Rehearing *. 1867 § 3700. In supreme court of appeals 1867 § 3701. Entry of order — Publication — Posting — Hearing 1867 § 3702. Rehearing where party not served 1868 § 3703. Day of week on which published 1868 § 3704. Docket for entry of rules 1868 § 3705. Continuance till next rule day 1868 § 3706. Proceedings for which rules given — Giving from month to month 1869 § 3707. Appearance by defendant — Rule for plaintiff to ffle — Non-suit —Costs 1869 §3708. Declaration or bill not filed — Dismissal of suit by clerk 1869 § 3709. Non-resident defendant — Abatement 1869 § 3710. Amended declaration or bill — Plea or answer — Supplemental bill — Bill of revivor — Dismissal 1869 § 3711. Guardian ad litem — Appointment, powers and duties — Costs and charges 1870 § 3712. Plea — Combining different matters 1871 § 3713. ■ — What allegations and prayers unnecessary 1871 § 3714. Protestation — Effect of omitting 1871 § 3715. Omission of formal defence in plea 1871 § 3716. Second or other plea — Unnecessary allegations 1871 § 3717. Defects or imperfections in pleadings — When harmless 1871 § 3718. Setting down plea or demurrer for argument — Effect of over- ruling — Rule to answer — Failure to answer — Decree 1872 § 3719. Issue on plea — Jury trial 1872 § 3720. When allegation as to place of act or contracting unnecessary in plea 1872 § 3721. Jurisdictional averments — When unnecessary — Profert and oyer ". 1872 § 3722. Non-traversable allegations — When may be omitted 1873 CONTENTS OF VOLUME II Ixiii WEST VTRGINIA (Stat.— cont.) § 3723. Answer — Alleging claim for affirmative relief — Effect as cross- bill — Special reply — Cross-bill 1873 § 3724. Uncontroverted allegations in bill or answer 1873 §3725. Bill — Form — Prayer as to defendants named in caption 1873 § 3726. Verification of bill, answer and replication 1874 § 3727. Proof of writing in action on instrument — "When necessary. . . .1874 §3728. Proof of existence of partnership or corporation 1874 § 3729. Verification of pleadings — Certificate 1875 § 3730. Confessed decree— Entry— Effect 1876 § 3731. Rule to defendant to plead — Decree nisi — Confessed decree. . . .1876 § 3732. Confessed decree — Attachment — Order to answer interroga- tories — Plea or demurrer after attachment 1876 § 3733. Insufficient answer after process of contempt — Subsequent pro- cedure 1877 § 3734. Setting cause for hearing 1877 § 3735. Eight of one of several deefndants to have cause proceed 1877 § 3736. Several defendants — Decree against those served — Discontinu- ance as to others 1877 § 3737. Time of filing answer — Sending cause to rules — Continuance. .1878 § 3738. Exceptions — Setting for argument 1878 §3739. — Sustaining — Second answer insufficient — Interrogatories. . .1878 § 3740. Answer claiming affirmative relief — Effect as cross-bill 1878 § 3741. Amendment adding parties 1878 § 3742. Answer denying material allegation — Proof required of plain- tiff 1878 § 3743. Proceedings in vacation — Control by court — Reinstating cause — Correcting mistakes 1879 § 3744. Death of one of numerous parties — Decree 1879 § 3745. Reinstatement of dismissed or non-suited cause — Notice 1879 § 3746. Who may take — How taken and certified 1879 I 3747. Non-resident witness 1880 § 3748. Deposition after decree 1881 § 3749. Depositions — Notice — Return 1881 § 3750. Perpetuating testimony — Bill — Proceedings — Report by commis- sioner 1881 § 3751. Docket for chancery causes 1882 § 3752. Trial of issues by jury — Verdict — New trial 1882 § 3753. Decree for sale of property — Terms of sale — Commissioner — Bond — Report 1882 § 3754. Decree against representative of incompetent — Decree for pay- ment 1883 § 3755. Executions — Orders — Time for issuing 1884 §3756. Execution of deed or writing under decree — Commissioner. ... 1884 § 3757. Title of purchaser of property sold under decree — Effect of set- ting aside decree 1884 § 3758. Sale of exempt property — Issue in suit for specific property. . . .1884 § 3759. Fraudulent conveyance — Suit by creditor 1885 § 3760. Decree for property or payment of money — Effect — Execution. .1885 § 3761. Lien of decree for payment of money — Execution 1885 § 3762. Infant showing cause against decree 1885 § 3763. Issue of injunction before case ready for trial 1886 § 3764. Application to judge of supreme court of appeals for injunc- tion 1886 § 3765. Restraining removal of property — Forthcoming bond 1886 § 3766. Clerk to whom injunction order directed 1887 § 3767. Bond — Conditions — ^Before whom given 1887 § 3768. Other or additional security — Motion by surety 1887 § 3769. Dissolution of injunction — Damages — Liability on forthcoming bond 1888 § 3770. — Dismissal of bill — Costs - 1888 § 3771. Bill of review — ^When allowed 1889 § 3772. Motion to reverse or correct decree 1889 Ixiv EQUITY PRACTICE WEST VIEGINIA (Stat.— eont.) § 3773. In what cases allowed 1889 § 3774. Within what time record to be delivered — Bond 1890 § 3775. Stay of execution— Bond 1890 § 3776. Suit for benefit of another 1891 § 3777. Powers of courts of equity 1891 § 3778. Amounts which may be allowed 1891 § 3779. Grounds— Affidavit— Order 1891 § 3780. Order where security given — To whom issued — Number 1894 § 3781. Execution and return of order — Liability of officer 1894 § 3782. Property leviable — Indorsement for garnishment — Service on garnishee 189.5 § 3783. Bond — Taking property — Exceptions to bond — Eeturn of prop- erty 1895 § 3784. Eeturn of officer 1896 § 3785. Issue of execution on Sunday 1896 § 3786. Lien of attachment 1897 § 3787. Eorthcoming bond — Conditions — Amount 1897 § 3788. — Return— Exceptions by plaintiff— New bond 1897 § 3789. Payment of interest and profits on property to defendant — Discharge of attachment when bond given 1898 § 3790. Custody of property — Sale of expensive or perishable property. 1898 § 3791. Examination of garnishee — Payment on bond by garnishee. . . .1899 § 3792. — Failure to appear 1899 § 3793. — Failure to disclose debts or effects — Trial by jury — Costs 1899 § 3794. Order of publication 1900 § 3795. Defending attachment 1900 § 3796. Contesting right to sue out attachment — Jury trial — Verdict — New trial : 1900 § 3797. Sale of property under order of court 1901 § 3798. Sale of realty — Eeport by officer — Confirmation or resale — Conveyance to purchaser 1901 § 3799. Bond before sale where defendant not served 1902 §3800. Eight of third person to dispute attachment — Trial of claim.. 1902 § 3801. Priority as between attachments 1903 § 3802. Eehearing to defendant served by publication — Security for costs — Eights of purchaser of property '. . . 1903 § 3803. — Decree for defendant — Confirmation of original decree — Costs 1904 § 3804. Damages where attachment dismissed 1904 § 3805. Appeal by defendant — Bond — Eeturn of property 1904 § 3806. Bonds— Who may give 1905 % 3807. Arrest of defendant— Grounds 1905 § 3808. — Order— Bail— Bond of plaintiff 1906 § 3809. Form of order for arrest 1906 § 3810. Commitment of defendant— Bond — Conditions 1906 § 3811. — Bond by defendant— Discharge 1907 § 3812. — Discharge of defendant 1907 § 3813. Interrogatories to defendant in custody — Discharge for failure to file 1907 § 3814. Conveyance of property to arresting officer — Interrogatories — Eeturn — Filing — Ordering sale of property 1908 § 3815. When compellable 1908 § 3816. Voluntary partition .1908 § 3817. Allotting property to one party — Sale of whole or part — Distri- bution of proceeds 1909 § 3818. Share or name of person not known 1909 i 3819. Eights of lessees 1909 § 3820. Sale 1910 § 3821. Procedure 1910 § 3822. Indemnifying bond — Notice 1910 § 3823. — Failure to give bond — Proceedings where bond given 1911 § 3824. Suspending sale 1911 § 3825. Causing parties to appear 1912 CONTENTS OF VOLUME II Ixv WEST VIEGINIA (Stat.— cont.) § 3826. Order for sale of property 1912 § 3827. Forthcoming bond 1912 § 3828. Disposition of surplus after sale 1913 § 3829. Appointment— Eemoval 1913 § 3830'. Eef erence of accounts — Examination — Report 1914 § 3831. — Notice of time and place of taking 1914 § 3832. Order referring account in pending cause to commissioner — Notice ■. . . 1915 § 3833. Instructions to commissioner 1915 § 3834. Adjournments — Inspection of report — Exceptions — Time of fil- ing — Contents — Eequiring to be made specific 1915 §3835. Accounts — Taking and reporting — Adjournments — Delay 1916 § 3836. Eeports— Hearing upon 1917 § 3837. Appointment — Investment of money 1917 § 3838. Duties and powers as to investment in securities 1917 § 3839. Collection and investment of dividends 1918 § 3840. Accounts and statements 1918 I 3841. Liability— Interest on funds 1918 % 3842. Bond 1919 § 3843. Compensation 1919 § 3844. — Fines for breach of duty 1919 § 3845. Interest on investments 1919 § 3846. Accounts — Settling and stating 1919 § 3847. Examination of statement by court — Eequiring additional se- curity 1920 § 3848. Eeeording accounts 1921 § 3849. Fees for making and recording reports 1921 § 3850. Special receiver — Appointment — Notice — Bond 1921 CHAPTEE XLVII UNITED STATES Statutes § 3851. Eegulations as to proceedings in district and circuit courts 1923 § 3852. Eegulation of practice by Supreme Court 1923 § 3853. Process — Amendment 1923 § 3854. Amendments — Demurrer , 1924 § 3855. Eevivor on death of party 1924 § 3856. — Death of one of several parties 1925 § 3857. Proceedings against several defendants 1925 § 3858. — Absent defendants in suits to enforce liens, clear titles, etc. .1925 § 3859. District court always open for equity business 1926 § 3860. To circuit courts of appeals 1927 § 3861. When decree of circuit courts of appeals final 1927 § 3862. Proceedings for injunctions or receivers 1928 § 3863. Allowance of appeals by judges of circuit courts of appeals .... 1929 § 3864. To Supreme Court 1929 § 3865. Eeview — Eegulations as to — When to be taken 1930 § 3866. Writs of error from state courts 1930 § 3867. Appeals and writs of error from district courts 1931 § 3868. Certifying questions from circuit court of appeals to Supreme Court 1931 § 3869. Certiorari to circuit court of appeals 1932 § 3870. Writs of error and apjieals from circuit court of appeals 1932 § 3871. Writs of ne exeat 1932 § 3872. Cases reviewed by Supreme Court — By circuit court of appeals. 1933 § 3873. Temporary restraining orders 1933 § 3874. Injunctions — When granted 1933 § 3875. Injunctions staying proceedings in state courts 1934 Ixvi EQUITY PRACTICE UNITED STATES (Stat.— eont.) § 3876. Eestriction on suits in equity 1934 § 3877. Suits against receivers 1934 § 3878. Eestriotions on appointing receivers 1934 EULES OF COUKT § 3879. District court always open for certain purposes — Orders at chambers 1935 § 3880. Clerk 's office always open, except, etc 1935 § 3881. Books kept by clerk and entries therein 1935 i 3882. Notice of orders 1936 § 3883. Motions grantable of course by clerk 1936 § 3884. Motion day 1936 § 3885. Process, mesne and final 1936 § 3886. Enforcement of final decrees 1937 § 3887. Writ of assistance 1937 § 3888. Decree for deficiency in foreclosures, etc 1938 § 3889. Process in behalf of and against persons not parties 1938 § 3890. Issue of subpoena — Time for answer 1938 § 3891. Manner of serving subpoena 1938 § 3892. Alias subpoena 1939 § 3893. Process, by whom served 1939 § 3894. Defendant to answer — Default — Decree pro conf esse 1939 § 3895. Decree pro confesso to be followed by final decree — Setting aside default 1939 § 3896. Pleadings— Technical forms abrogated 1939 § 3897. Amendments generally 1939 § 3898. Purther and particular statement in pleading may be required. .1940 § 3899. Scandal and impertinence 1940 § 3900. Action at law erroneously begun as suit in equity — Transfer . . . 1940 § 3901. Matters ordinarily determinable at law, when arising in suit in equity to be disposed of therein 1940 § 3902. Signature of counsel 1940 § 3903. Bill of complaint— Contents 1941 § 3904. Joinder of causes of action 1941 § 3905. Stockholder's bill 1942 § 3906. Amendment of bill as of course 1942 § 3907. Defenses — How presented 1942 § 3908. Answer — Contents — Counter-claim 1943 § 3909. Eeply — When required. — When cause at issue 1943 § 3910. Answer to amended bill 1944 § 3911. Testing sufficiency of defense 1944 § 3912. Supplemental pleading 1944 § 3913. Bills of revivor and supplemental bills — Form 1945 § 3914. Officers before whom pleadings verified 1945 § 3915. Parties generally — Intervention 1945 § 3916. Eepresentatives of class 1945 § 3917. Absence of persons who would be proper parties 1946 § 3918. Nominal parties 1946 § 3919. Suit to execute trusts of will — Heir as party 1946 § 3920. Joint and several demands 1946 § 3921. Defect of parties — Eesisting objection 1946 § 3922. Defect of parties — Tardy objection 1947 § 3923. Death of party— Eevivor 1947 § 3924. Trial — Testimony usually taken in open court — Eulings on ob- jections to evidence 1947 § 3925. Depositions — To be taken in exceptional instances 1948 § 3926. Testimony of expert witnesses in patent and trademark cases. .1948 § 3927. Evidence taken before examiners, etc 1949 § 3928. Stenographer — Appointment — Pees 1949 § 3929. Evidence taken before examiners, etc 1949 § 3930. Attendance of witnesses before commissioner, master or exam- iner 1950 CONTENTS OF VOLUME II Ixvii UNITED STATES (Rules— cont.) § 3931. Notice of taking testimony before examiner, etc 1950 § 3932. Depositions under Eev. Stat. §§ 863, 865, 866, 867— Cross- examination 1950 I 3933. Deposition deemed published when filed 1951 § 3934. On expiration of time for depositions, case goes on trial calen- dar 1951 § 3935. Continuances 1951 § 3936. Discovery — Interrogatories — Inspection and production of docu- ments — Admission of execution or genuineness 1951 § 3937. Eeference to master — Exceptional, not usual 1953 § 3938. Proceedings before master 1953 § 3939. Master's report — Documents identified but not set forth 1954 § 3940. Powers of master 1954 § 3941. Form of accounts before master 1954 § 3942. Former depositions, etc., may be used before master 1955 § 3943. Claimants before master examinable by him 1955 § 3944. Return of master 's report — Exceptions — Hearing 1955 § 3945. Costs on exceptions to master 's report 1955 § 3946. Appointment and compensation of masters 1955 § 3947. Petition for rehearing 1956 § 3948. Suits by or against incompetents 1956 § 3949. Form of decree 1956 § 3950. Correction of clerical mistakes in orders and decrees 1957 § 3951. Preliminary injunctions and temporary restraining orders 1957 § 3952. Injunction pending appeal 1957 § 3953. Record on appeal — Reduction and preparation 1958 § 3954. Record on appeal — Reduction and preparation — Costs — Correc- tion of omissions 1959 § 3955. Record on appeal — Agreed statement 1959 § 3956. Affirmation in lieu of oath 1960 § 3957. Additional rules by district court 1960 § 3958. Computation of time — Sundays and holidays 1960 § 3959. These rules effective February 1, 1913 — Old rules abrogated 1960 EQUITY PRACTICE VOLUME II— STATUTES AND RULES INTEODUCTION Following are the principal statutory and code pro- visions on equity procedure now in force in the various jurisdictions where the English Chancery system is still essentially followed, and also the. equity rules now in effect in these jurisdictions. This collection of statutes and rules has been carefully compiled and compared and includes all amendments down to January 1, 1915. It has of course been necessary to limit the selection of statutes to be included, otherwise they would quickly develop to a point beyond the reasonable scope of the work. Accordingly statutes relating to the following topics have been excluded from the compilation, viz., the structure or composition of courts, the jurisdiction of courts of equity general or special, administration of trusts, administration of estates, statutory liens, dissolu- tion proceedings, fees and compensation of magistrates, general duties of clerks or registers of courts, sheriffs or other officers. On the other hand all statutory or code provisions relating to the procedure and practice in a suit in equity from the preparation and filing of the bill to final decree and enforcement of the same and appeal therefrom and all equity rules promulgated by the higher courts of equity in each jurisdiction except the special rules issued for the regulation of general procedure before courts of appeal, have been included. 891 Whitehouse E, p, Vol. II— 1 CHAPTER XXX ALABAMA STATUTES* Article 8. Parties Plaintiff and Defendant §536. State may bring suit in chancery. The state may sue in chancery, and the suit is governed hy the same rules as suits between individuals. The solicitor of the circuit in which the suit is pending must attend to the same on the part of the state, and the governor may employ assistant counsel, if he deem it necessary, and the chancellor may determine the amount of compensation; and if unsuccessful, the state is liable for costs as indi- vidual suitors are. The direction of the executive of the state in writing is sufficient authority to the attorney for bringing such suit. (Ala. Code § 3087.) § 537. How persons of unsound mind may sue. Per- sons of unsound mind may sue by next friend, and guard- ians may be substituted; and upon restoration to sanity, the suit may proceed in their own names. (Ala. Code § 3088.) § 538. Joint demand may be prosecuted against one defendant. When the plaintiff has a joint demand, he may proceed against one or more of the parties thereto, without joining the others. (Ala. Code § 3089.) Article 9. Commencement of Suits, Time of §539. Suits — How commenced. The mode of com- mencing the suit in chancery is by bill, addressed to the * From the Code- of 1907, as amended, corrected to January 1, 1915. 892 ALABAMA STATUTES AND RULES 893 chancellor of the division in which the same is filed. (Ala. Code § 3090.) § 540. Limitation. The provisions of this Code, pre- scribing the time within which civil suits must be com- menced after the cause of action accrued, apply to suits commenced by bill in chancery. (Ala. Code § 3091.) § 541. Filing of bill commencement of suit. The filing of the bill is the commencement of the suit, if prosecuted, whether the defendant is brought into court by personal service or by publication. (Ala. Code § 3092.) Aeticle 10. Venue § 542. In what district filed. The bill must be filed in the district in which the defendants, or a material de- fendant, resides; and if to enjoin proceedings on judg- ments in other courts, it may be filed in the district in which such proceedings are pending, or judgment ren- dered; and in case of nonresidents, in the district where the subject of the suit, or any portion of the same is, when the cause of action arose, or the act on which the suit is founded was to be performed; or if real estate be the subject-matter of the suit, whether it be the exclusive subject-matter of the suit or not, then in the district where the same, or a material portion thereof, is sit- uated. (Ala. Code § 3093.) § 543. Frame of bill. The bill must contain a clear and orderly statement of the facts on which the suit is founded, without prolixity or repetition, and conclude with a prayer for the appropriate relief, without aver- ring any combination or confederacy between the defend- ants, or others, the insufficiency of the remedy at law, or charging pretenses by the defendants ; and it is the duty of the courts to discountenance prolix statements and unnecessary and false allegations in all chancery plead- ings. (Ala. Code § 3094.) § 544. Multifariousness. Unless taken by demurrer, ob- jection to a bill because of multifariousness must not be entertained. A bill is not multifarious which seeks al- ternative or inconsistent relief growing out of the same 894 EQUITY PRACTICE subject-matter or founded on the same contract or trans- action, or relating to the same property between the same parties. (Ala. Code § 3095.) § 545. Waiver of oath to answer. When a bill is filed for any other purpose than discovery only, the plaintiff may waive, in or upon the bill, the answer being made on the oath of the defendants, or either of them; and in such case the answer is entitled to no more weight as evidence than the bill. (Ala. Code § 3096.) Article 12. Summons and Service § 546. Issue of summons. Upon the filing of the bill, the register must forthwith issue a summons and copy for each defendant against whom publication is not shown to be necessary, requiring him to appear and demur, plead to or answer the bill within thirty days after serv- ice. (Ala. Code § 3097.) § 547. Service of summons. A copy of such summons must be personally served by the sheriff, if the defendant is to be found in his county, his return indorsed on the original, and returned to the register within five days after service; but it is not necessary to serve a copy of the bill. (Ala. Code § 3098.) § 548. Summons executed in another county returned by mail. When the summons is executed in any other county than the one in which the court from which the same issues, is held, the return may be made by mail, directed to the register, the title of the suit being endorsed on the envelope, and the word "summons" written against the same. (Ala. Code § 3099.) § 549. Mailed within five days. When the return is by mail, the summons, directed and endorsed, according to the provisions of the preceding section, must be depos- ited in a postoffice of the county in which the same is exe- cuted, within five days after the execution. (Ala. Code §3100.) § 550. How parties of unsound mind may be made defendants. When a party to a suit, or other proceedings in chancery, is alleged to be of unsound mind, and to have ALABAMA STATUTES AND RULES 895 no legal guardian, such party may be brought into court by service of process personally upon him, and a guardian ad litem appointed for such person, as in case of infants over fourteen years of age who fail to select or nominate a guardian ad litem. (Ala. Code § 3101.) § 551. Defendant entitled to copy of bill. Any defend- ant, after service of a summons, or after being brought into court by publication, may, on application to the register, obtain a copy of the bill, to be taxed as other costs. (Ala. Code § 3102.) § 552. Summons as to nonresidents. A summons to answer the bill may be issued to a nonresident defendant and may be personally served upon him if found within the state; and in such case, publication is not necessary. (Ala. Code § 3103.) Article 13. Publication, Seevice by § 553. Publication as to nonresidents. If any defend- ant is shown to be a nonresident, or if his residence is unknown, or if, being a resident, he has been absent from the state more than six months from the filing of the bill, or conceals himself so that process cannot be served on him, the register must, on proof thereof by affidavit, make out and superintend the execution of the appropriate order of publication. (Ala. Code § 3104.) § 554. Fee for publication deposited with register. In all cases in which an order of publication is necessary, a sufficient amount of money must be deposited with the register to cover the expenses of such publication; and the bill may be dismissed, on thirty days' notice to the plaintiff or solicitor, on failure to make such deposit within that time. (Ala. Code § 3105.) § 555. Publication and proceedings against defendants whose names are unknown. In cases where it is necessary to make any persons defendants to a bill, and the names of all or any of them are unknown to the plaintiff, and cannot be ascertained on diligent inquiry, and he annexes to his bill an affidavit that the names of such persons are unknown, that he has made diligent inquiry to ascertain 896 EQUITY PRACTICE the same, and that their residence, as he believes, is not in this state, proceedings may be had, and a decree ren- dered against them without naming them ; and the regis- ter must make publication as in case of nonresidents, describing such unknown parties, as near as may be, by the character in which they are sued, and with reference to their title or interest in the subject-matter. (Ala. Code § 3106.) Article 14. Answers § 556. Time for answer — Decree pro confesso. A de- fendant must demur, plead, or answer within thirty days after the service of the summons, or within thirty days after the period specified in the order of publication, if the publication required by the order has been perfected, or he must obtain further time ; otherwise, a decree pro confesso may be passed. (Ala. Code § 3107.) § 557. When answer compelled by attachment. An- swers from defendants upon whom there has been per- sonal service of process may be compelled by attachment, if the bill is filed for discovery, or answer on oath is not waived. (Ala. Code § 3108.) § 558. Arrest under attachment — ^Discharge on bond. Such attachments are executed by the arrest of the de- fendant and bringing him before a chancellor, circuit judge, or register, who may discharge him on his giving bond with surety in such sum as may be fixed by such chancellor, circuit judge, or register, to be approved by the arresting officer, payable to the register of the court in which the bill is filed, and conditioned that he will file a full answer to the bill, within a time to be prescribed by the officer before whom such defendant is brought; which bond must be returned with the attachment within the same time after service, and in the same manner, if by mail, as a summons is required to be returned under the provisions of this chapter. (Ala. Code § 3109.) § 559. Suit on attachment bond. Upon the forfeiture of the bond, the chancellor may direct the same to be sued, and the whole or such part of the penalty as he ALABAMA STATUTES AND RULES 897 directs, may be recovered against any or all of the oblig- ors having ten days' notice, by motion in the circuit court of the county in which the court issuing the attach- ment is held ; and on the trial of such motion, the indorse- ment by the register of forfeiture is presumptive evidence of the fact. (Ala. Code § 3110.) § 560. Defendant imprisoned until he files answer or bond. In case a defendant refuses or neglects to give such bond, he must be committed to jail by the sheriff, and there kept until he files a full answer with the regis- ter. (Ala. Code § 3111.) § 561. Oath to answer — By whom administered. When an answer is required to be sworn to, the oath may be administered by any officer authorized to take and certify affidavits, or by a commissioner appointed by the register. (Ala. Code § 3112.) § 562. Protection from full answer. A defendant may in his answer protect himself from furnishing a full answer to the allegations of the bill. (Ala. Code § 3113.) § 563. Application to answer specially. When a party offers to answer specia^Uy, and applies for leave so to do, the ground of such application may be contested, and the application must only be granted upon reasonable notice. (Ala. Code § 3114.) § 564. All defenses may be set up in answer. A def end^ ant may incorporate all matters of defense in his answer, and is not required to plead specially in any case, but shall not take or have any advantage by pleading or prov- ing an immaterial, irrelevant, insufficient, or untrue plea, and the complainant is not required to test the sufficiency of -any such plea, or to move to strike it, and if his bill contains equity and is proved, he shall have the appropri- ate relief, notwithstanding any such special plea may have been pleaded and proved. (Ala. Code § 3115.) § 565. Effect of answer on hearing on bill and answer. When the case is heard on bill and answer without testi- mony, the answer must be taken to be true, so far as it is responsive to the allegations of the bill, except in those 898 EQUITY PRACTICE cases where the complainant has waived the oath of the defendant to the answer. (Ala. Code § 3116.) § 566. Rule requiring two witnesses to overcome sworn answer modified. The rule requiring two witnesses, or one witness and corroborating circumstances, to overcome an answer under oath denying the allegations of the bill, is abolished in all cases where the bill is sworn to by the complainant ; and such answer shall have only such weight as evidence as the evidence of such defendant taken upon interrogatories. (Ala. Code § 3117.) Article 15. Answers as Cross-Bills § 567. Answer may be made cross-bill. A defendant may obi,ain relief against a party complainant or defend- ant for any cause connected with, or growing out of the bill, by alleging in his answer, and as a part thereof, the facts upon which such relief is prayed. The matters or facts thus alleged and put in issue must be considered in the nature of a cross-bill, and be heard at the same time as the original bill. It shall not be necessary to issue a summons to any defendant in the cross-bill, except those who are not complainants in the original bill. Ala. Code § 3118.) § 568. Answer to such matter. The party complainant or defendant, as to whom such new matter is alleged, must make answer thereto under the rules and regulations pro- vided in this chapter for the answers of defendant to original bills. An answer on oath may be required or waived in or upon the answer introducing such matters; and if an answer on oath is waived, the answer is not evi- dence for the party respondent. (Ala. Code § 3119.) Article 16. Eevivor § 569. Revivor of suit by defendant. Upon the abate- ment of a suit, by reason of the death or other disability of the complainant, or if he is suing as executor, admin- istrator, or trustee, by reason of his resignation or re- moval, if there be not, within ninety days after his death, resignation, or removal, an application to revive by his legal representative, his successor, or party in interest, ALABAMA STATUTES AND RULES 899 a defendant, having an interest in the further prosecu- tion of the suit, may at any time within twelve months, revive the same by bill of revivor and supplement, or by bill of revivor and cross-bill. (Ala. Code § 3120.) Articles 17, 18. Demueeee, Eeplication, Dismissal § 570. General and special demurrers. A demurrer to the bill must set forth the grounds of demurrer specially, unless the defendant desires to test the equity of the bill, when he may do this by a general demurrer, "that there is no equity in the bill." The motion to dismiss for the want of equity is hereby abolished. (Ala. Code § 3121.) § 571. No replication. No replication is necessary to an answer. (Ala. Code § 3122.) § 572. Dismissal of suit in vacation. Before an answer or cross-bill is filed, the complainant may, on application to the register in vacation, dismiss the suit. On such application, the register must enter on the minutes an order of dismissal; and may issue execution against the complainant for all costs which have accrued. After answer or cross-bill filed, the complainant may, on appli- cation to the register in vacation, dismiss the suit; and the register must enter an order of dismissal on the minutes. But the defendant, at the next succeeding term of the court, may show cause against the dismissal, and procure a vacation of the order. If cause is not shown at the next succeeding term, the order is final; and ex- ecution may issue against the complainant for all costs which have accrued. (Ala. Code § 3123.) Article 19. Amendments § 573. Amendments before answer. Amendments to bills before answers, pleas, or demurrers filed, are allow- able as of course and without notice; and amendments to any summons may be made before service thereof. (Ala. Code § 3124.) § 574. Amendments after service and before answer. After a defendant has obtained a copy of the bill from the register, and before answer, plea, or demurrer, 900 EQUITY PRACTICE amendments to the bill may be made without notice, upon payment of the costs of furnishing a copy of the amendment to such defendants as have obtained a copy of the bill; and amendments may also be made after de- murrer, and before argument, on the same terms. (Ala. Code § 3125.) § 575. Amendments before decree, on terms. Amend- ments to bills must be allowed at any time before final decree, by striking out or adding new parties, or to meet any state of evidence which will authorize relief; and amendments to answers must be allowed at any time before final decree, so as to set up any matter of defense ; but such amendments to bills and answers must be al- lowed on such terms as the chancellor may impose, not extending beyond the payment of all the costs; and if an amendment be allowed at the hearing to bill or answer, the party against whom the amendment is allowed shall be entitled to a continuance as a matter of right; and if the cause is continued, both parties shall have the right to take additional testimony; and if an amendment be allowed in vacation time, both parties shall have the right to take additional testimony without special appli- cation. (Ala. Code § 3126.) § 576. Register may allow amendments after answer. The register may, on notice to the opposing party, allow amendments to bills after answer, and amendments to answers, but only on payment of the costs of the amend- ment by the party making the application. (Ala. Code § 3127.) § 577. Answer to amendment. If an amendment to the bill is made after answer filed, and answer is required by complainant, an answer and not merely a demurrer or plea must be put in within thirty days after notice thereof, or further time be obtained to answer. And if not so answered, the matter may be taken as confessed. But the same may be set aside on application as in other cases. And if no answer is required, the defendant may counter plead as he may be advised; but all such plead- ings shall only be allowed as amendments to the defen- sive pleadings already in the cause, and not as originals. ALABAMA STATUTES AND RULES 901 and the cause shall be heard as the whole after being once at issue. The defendant may incorporate a plea or demurrer in his answer. (Ala. Code § 3128.) Article 20. Objections and Exceptions § 578. What objections set for separate hearing. When an objection is made to a bill for want of parties, or joinder of improper parties, it may be set for hearing on that objection only; and if not set for hearing on that ground, the court, if the objection prevail on the final hearing, must dismiss the bill. (Ala. Code § 3129.) § 579. Decree, when objection for want of parties first taken at hearing. If the defendant, at the hearing of the cause, take an objection for want of parties, not hav- ing by plea or answer taken the objection, the court may render a decree saving the rights of parties not before it, or it may grant leave to amend the bill on terms not extending beyond the payment of costs. (Ala. Code § 3130.) § 580. Exceptions to answers. Exceptions to answers must be made within sixty days after the same are filed, and notice must be given by the register of the day of hearing the same. (Ala. Code § 3131.) Article 21. Notices § 581. Notices — ^When served on solicitors. Notice in relation to any supplemental bill, amendment, decree, motion, or other proceeding in the court of chancery, served on the solicitor of the party, is valid. (Ala. Code § 3132.) § 582. Notice to parties in default. When parties are in default for want of an answer, or other cause, the notices may be entered on the order book of the register, and such entries, for such time as is fixed by the register, are sufficient in cases of amendments, supplemental bills, and of other orders in the cause. (Ala. Code § 3133.) Article 22. Examination of Parties § 583. Defendant may examine complainant. If the defendant wishes to examine the complainant touching 902 EQUITY PRACTICE the subject-matter of the bill, or his defense, he may, after filing his answer, exhibit interrogatories to the complainant and call upon him to answer the same; and on his failing to answer them within such time as may be prescribed by the register, his bill must be dismissed with costs, unless such time is extended. (Ala. Code § 3134.) § 584. Complainant may examine defendant. If the complainant wishes to examine the defendant touching the matters at issue, he may exhibit interrogatories to the defendant and call upon him to answer the same; and on his failure to answer them within such time as may be prescribed by the register, the court may, by attach- ment, compel him to answer them, or may render a de- cree granting relief to the complainant, or may extend the time for such answers to be made. (Ala. Code § 3135.) § 585. Copy of interrogatories to be served. Upon the filing of interrogatories under either of the two preced- ing sections, the register must issue a copy thereof, which, together with. a copy of the order of the register fixing the time for answering them, must be served upon the party to whom the interrogatories are propounded, or his solicitor, not less than sixty days before the expira- tion of such time. (Ala. Code § 3136.) § 586. Exceptions to such interrogatories. Exceptions may be taken to such interrogatories and heard before the register at such time as he may prescribe, on reasonable notice to the party filing the interrogatories, or his solici- tor, subject to an appeal to the chancellor. (Ala. Code § 3137.) § 587. Answers to such interrogatories evidence. The answers to such interrogatories, when duly sworn to before and certified by an officer authorized to take and certify affidavits, or a commissioner appointed by the register to take and certify such answers, are evidence in the cause when offered by the party taking them; but such party is not precluded from offering other tes- timony touching the same facts, or from contradicting such answers. (Ala. Code § 3138.) ALABAMA STATUTES AND RULES 903 Aeticle 23. Okal Examinations, Inteeeogatoeies, Com- missions, Subpoenas, Witnesses § 588. Oral examination of witnesses. Either party may require witnesses residing witliin tlie state, to be examined orally, instead of by interrogatories. Such examination may be taken before the register, or before an examiner appointed by the court, or by a special com- missioner of the appointment of the register, as the ap- plicant may de^e. (Ala. Code § 3139.) §589. Notice TO oral examination. Notice of the re- quirement of an oral examination must be given by the register to the adverse party, or to his solicitor of record, if he have such solicitor residing in the district, which may be served by the sheriff; but if such adverse party do not reside within the district, and have no solicitor of record residing therein, notice may be given by an entry on the order book of the register. (Ala. Code § 3140.) § 590. Testimony by interrogatories. In all other cases than that provided for in the first section of this article, testimony in chancery causes must be taken by interroga- tories, under the rules now in force, or such as may here- after be adopted. (Ala. Code § 3141.) § 591. Rules as to competency same as at law. The rules of evidence as to the competency of witnesses in courts of chancery are the same as in courts of law. (Ala. Code § 3142.) § 592. Testimony, when taken. The plaintiff may take testimony at any time after answer, or after a decree pro confesso, and the defendant at any time after filing his answer. (Ala. Code § 3143.) §593. Proof of exhibits proved before register. Ex- hibits to bills and answers may be proved by affidavits filed with the exhibits in the register's office thirty days before the hearing. (Ala. Code § 3144.) § 594. When testimony may be retaken. The party against whom the deposition of a witness has been taken, may retake the testimony of such witness, under the provisions of section 4043 of this Code, and the provi- 904 EQUITY PRACTICE sions of that section apply to such testimony when taken. (Ala. Code § 3145.) § 595. Commissions to take testimony. All commis- sions for the taking of testimony must be directed to one or more commissioners, to be appointed by the register, and made returnable with all convenient speed. (Ala. Code § 3146.) § 596. Service of interrogatories. No commission to take testimony must issue until the adverse party, or his solicitor, if either of them reside in the district, has been served with notice of the filing of the interrogatories for ten days ; but after such service, such party may, on ap- plication to the register, obtain a copy of the interroga- tories, the cost thereof to be taxed as other costs in the cause. (Ala. Code § ,3147.) § 597. If adverse party a nonresident. If such adverse party, or his solicitor, do not reside in the district, this notice may be given by the register mailing a copy of such notice, postage prepaid, to such solicitor of record, at his place of residence, ten days before the issuance of the commission; but such party may, on application to the register, obtain a copy of the interrogatories as pro- vided in the preceding section.. The certificate of the register is prima facie evidence of the mailing of such notice. (Ala. Code § 3148.) § 598. Rebutting interrogatories. After such notice has been given, if cross-interrogatories are filed, the party has five days to file rebutting interrogatories; but this time may be extended on application to the register with- out notice. (Ala. Code § 3149.) § 599. Register may act as commissioner, unless ob- jected to. When interrogatories are filed in the chancery court for the purpose of taking the deposition of a wit- ness in any cause pending in such court, and the solicitor filing the same shall appoint the register, in writing indorsed on the interrogatories, as the commissioner to take the same, the register shall, without the issuance of the commission to himself, proceed to take the testimony of the witness specified in the interrogatories, under the rules and regulations applying to the taking of such tes- ALABAMA STATUTES AND RULES 905 timony by commissioners appointed by such register, unless the opposite party, within ten days after such interrogatories are filed, files an objection in writing, when the appointment of a commissioner must be made as usual. (Ala. Code § 3150.) , § 600. Power to issue subpoenas — Exajnination of wit- nesses. The commissioner register, or examiner has the power to issue subpoenas for witnesses, to administer oaths to them and to take and certify their testimony. (Ala. Code § 3151.) § 601. Subpoenas executed by sheriff or constable — Proof of default. Such subpoenas may be executed by any sheriff or constable; and the certificate of the com- missioner, register, or examiner that a witness failed to appear and testify, together with the return of service by the officer, is presumptive evidence of the facts. (Ala. Code § 3152.) §602. Compensation of witness. Witnesses in chan- cery causes are entitled to the same compensation as in civil cases at law, to be proved before and certified by the commissioner, register, or examiner, and taxed as costs in the cause. (Ala. Code § 3153.) § 603. Fees for taking depositions. For taking and certifying the testimony of witnesses, the commissioner, register, or examiner is entitled to twenty cents for every hundred words, not including the caption, certificate, or exhibits, one dollar and fifty cents for each day he is necessarily engaged, and five cents for each mile neces- sarily traveled by him in taking such testimony; all of which must, upon his certificate, be taxed as costs in the cause; but the chancellor may, for good cause shown, reduce such compensation. (Ala. Code § 3154.) § 604. Default of witness — Penalty. If the witness fail to attend before the commissioner, register, or examiner, being served with a subpoena so to do, the commissioner, register, or examiner may indorse on the subpoena that the witness failed to attend, and return the same to the clerk of the circuit court of the county, who must enter the case on the docket, and such proceedings may be had as in the case of defaulting witnesses in the circuit court, 906 EQUITY PRACTICE and indorsement on the subpoena being presumptive evi- dence of the default of such witness. (Ala. Code § 3155.) § 605. Defaulting witness may be committed, without bail, until he consents to testify. If a witness fails, after due notice, to appear before the commissioner, register, or examiner, or, being present, refuses to testify, the com- missioner, register, or examiner, must, when requested by either party or his solicitor, certify the facts to any chancellor or circuit judge; and thereupon the witness may be committed and compelled to testify in all respects as in cases of defaulting witnesses before commissioners appointed from courts of law, the bail bond in such case to be enforced in the circuit court of the county. (Ala. Code § 3156.) Article 24. Refbeences to the Eegistee ; Exceptions § 606. Proceedings before the register on reference. Whenever a reference is made to the register, the party at whose instance, or for whose benefit the reference is made, must cause such matter to be presented to the register, within the time limited for the hearing, and if no time is limited, within three months after the reference is made ; and if such party omit so to do, the adverse party may cause proceedings to be had before the register, at the costs of the party procuring the reference. (Ala. Code § 3157.) § 607. Notice of the day of hearing — Proceedings thereon. Upon any such reference, the register must assign a time and place for the proceeding therein, and give reasonable notice to each of the parties, or their solicitors; and if either party fail to appear at the time and place appointed, the register may proceed ex parte, or in his discretion, adjourn the examination to another day, giving notice to the adverse party, or his counsel, of such adjournment. (Ala. Code § 3158.) § 608. Authority of the register on reference. The register, in all matters referred, must proceed with the least practicable delay, and has authority — 1. To examine the parties on oath as to all the items of reference. ALABAMA STATUTES AND RULES 907 2. To require the production of all books, papers, writ- ings, vouchers, and documents in relation to such matters. 3. To examine on oath, viva voce, all witnesses pro- duced by the parties before him, and take down such evidence in writing. 4. To hear the depositions of witnesses taken under a commission, or upon oral examination, as in other chan- cery cases. 5. To do all other acts, and direct all other inquiries and proceedings in the matters before him, which may be necessary, subject at all times to the revision and con- trol of the chancellor. (Ala. Code § 3159.) § 609. Evidence in cause used before register. All affidavits, depositions, and documents, which have been made or filed in the cause, may be used on reference before the register. (Ala. Code § 3160.) § 610. Exceptions to register's decisions. Either party may reserve in writing any question arising on a refer- ence for the revision of the chancellor. But the state- ment of the name of a witness and the page on which his testimony is noted is in all cases sufficient to call such testimony to the attention of the chancellor. (Ala. Code § 3161.) Akticle 25. Decebes Peg Confesso and Final Deceeb "Without Peesonal Seevice § 611. Decrees pro confesso. Decrees pro confesso may be taken before the register on the failure of the defend- ant to demur, plead to, or answer the bill within thirty days after service of the summons, or thirty days after the period specified in the order of publication, if the publication required by the order has been perfected, unless the time for answering or pleading has been ex- tended; in which case, a decree pro confesso may be passed at the expiration of such time. (Ala. Code § 3162.) §612. On such decrees allegations of bill taken as admitted — Exceptions. In all cases in which decrees pro confesso are lawfully taken, the allegations of the bill are to be regarded as admitted, except in case of infant Whitehouse B. P. Vol. II — 2 908 EQUITY PRACTICE defendants, persons of nnsonnd mind, executors, admin- istrators, and bills for divorce. (Ala. Code § 3163.) § 613. Decree after decree pro confesso is taken in term time or vacation. Whenever a decree pro confesso is taken in any cause in the chancery court or courts exer- cising chancery jurisdiction, and the evidence has been taken and the cause is ready for submission for final de- cree, and the complainant or his solicitor of record if no defense has been interposed, shall file a written request with the register or clerk of the court where the cause is pending, and shall give ten days ' notice in writing to the defendant of the proposed submission, which notice must be served by the sheriff upon the defendant or his solicitor of record, and if the defendant has a guardian ad litem, then upon such guardian ad litem, if either resides within the State and if neither resides within the State, such notice must be sent by mail, postage prepaid, to one of them at his place of residence; or, in case a defense has been interposed by any defendant, such parties or their solicitors of record shall file a written agreement with such register or clerk to deliver the papers in said cause to the chancellor or judge of said court, together with notes of testimony in said cause, the register or clerk shall at once deliver all papers in said cause in term time or vacation to the chancellor or judge, and he shall at once render a final decree in said cause, and return the same to the register or clerk for enrollment, and said decre.e shall be as binding and have as full effect as if it has been ren- dered in term time. (Ala. Code § 3164, as amended by Laws 1911, No. 500, p. 565.) § 614. Not heard on day of taking decree. No cause in which a decree pro confesso is taken must be heard on the same day; but the cause may be set for hearing on any subsequent day. (Ala. Code § 3165.) § 615. Defendant may contest decree on merits, or appear on reference. A defendant against whom a decree pro confesso is taken can appear and contest a decree on the merits of the bill, or may appear before the register on a reference. (Ala. Code § 3166.) § 616. Decree set aside on full answer. A defendant ALABAMA STATUTES AND RULES 909 who has been served with a summons may, at any time before the publication of the testimony, on making a proper showing, obtain leave from the chancellor or regis- ter to set aside such decree, upon filing a full and sufficient answer, and upon such terms, not extending beyond full costs, as the chancellor deems proper; and the defendant may also plead or demur upon such terms as the chan- cellor may order. (Ala. Code § 3167.) § 617. When set aside as against defendant on publi- cation. A defendant brought into court by publication, against whom a decree pro confesso has been rendered, may also, before publication of the testimony, set aside such decree on application to the chancellor or register, on filing a full and sufficient answer, and such other terms, not extending beyond the payment of costs to the time of the application, as may be imposed. (Ala. Code § 3168.) § 618. Answer after publication of testimony. The per- mission to file an answer, after the publication of the tes- timony, rests in the sound discretion of the chancellor. (Ala. Code § 3169.) § 619. Decree without personal service not absolute for twelve months — Copy sent defendant. A decree made against a defendant, without personal service, who does not appear, is not absolute for twelve months from the rendition thereof, except as otherwise in this article pro- vided; and in such case the court must direct a copy of the decree to be sent to such defendant, or, in case of infants, or persons of unsound mind, to their guardians, if their residence can be ascertained. (Ala. Code § 3170.) § 620. Petition to set aside decree and defend on merits. Such defendant may file a petition, showing sufficient cause for setting aside such decree and permitting him to defend the suit on the merits, at any time within such twelve months, unless he has been served with a copy of such decree, when such petition must be filed within six months from such service. If the parties have been dis- missed, notice of such petition shall be given those in in- terest. Upon the hearing of such petition, the chancellor has full power to open the decree and proceed with the 910 EQUITY PRACTICE cause as if no decree had been rendered therein. (Ala. Code § 3171.) § 621. When testimony on file used by either party. In the case provided for in the preceding section, either party may use the testimony of witnesses on file in the cause, who have died, or removed from the state, or become insane. (Ala. Code § 3172.) § 622. When decree becomes conclusive. When per- sonal service of a decree rendered under the provisions of this article is made by serving the defendant with a copy of such decree, the same is conclusive and binding upon him, if the petition to set aside such decree is not made within six months from such service. (Ala. Code § 3173.) § 623. To whom preceding section not applicable. The provisions of the preceding section do not apply to infants, or persons of unsound mind, who are allowed twelve months from the termination of their respective disabilities to show cause against such decrees. (Ala. Code § 3174.) § 624. Rights and liabilities of parties without service extend to representatives. The rights and liabilities of any plaintiff or defendant on bills taken pro confesso, without personal service, extend to the personal repre- sentatives of any deceased plaintiff or defendant; and with reference to the altered state of the parties, and any new interest acquired, the chancellor may, on petition, upon due notice being given and sustained by proof, per- mit any party to file such bills and adopt such proceed- ings as the circumstances of the case may require for having the matter of the decree duly considered, and the rights of the parties interested therein duly ascertained and determined. (Ala. Code § 3175.) § 625. Execution of decrees on bills taken pro confesso without service. It is no objection to the execution of a decree rendered against a defendant, that it was founded on a bill taken pro confesso without personal service ; but before the execution of such decree, within twelve months from the rendition thereof, the plaintiff, or party inter- ested, must give bond, with two sureties, payable to and approved by the register in a penalty to be prescribed by ALABAMA STATUTES AND RULES 911 the chancellor or sucli register, conditioned to pay the pecuniary value of the personal property which may be disposed of, or placed beyond the control of the court or party, by the execution of the decree, and interest thereon from the time such property is so disposed of, or placed beyond such control; and to account for the value, rents, and profits of any real estate transferred by the opera- tion of such decree, and further, to abide and perform such decree as the court may render, if the decree taken on the bill pro confesso is set aside ; and the chancellor may, if such decree is set aside, render a final decree against all the parties to such bond. (Ala. Code § 3176.) Article 26. Bills of Review § 626. Suspension of decree on presenting a bill of review. When a decree has been rendered, and a bill of review is presented, the chancellor may direct the proceed- ings on such decree to be suspended until a decree is rendered on such bill of review, or until the further order of the court, requiring such bond of the plaintiff as will effectually protect the interest of the parties interested in the decree rendered ; on which bond the chancellor may render a final decree for any portion, or the whole of the penalty. (Ala. Code § 3177.) § 627. Application to file such bills — ^When made. Ap- plication to file bills of review must be made within three years after the rendition of the decree, except in cases of infants and persons of unsound mind, who may apply within three years after the termination of their respec- tive disabilities. (Ala. Code § 3178.) Article 27. Equitable Attachment — Writ of Ne Exeat § 628. Writ of ne exeat — Equitable attachment. Writs of ne exeat and equitable attachment may issue on equi- table debts and demands in any case in which an attach- ment at law may issue; and in the issue of equitable attachments, and all the proceedings thereon, the provi- sions in relation to attachments from courts of law must 912 EQUITY PRACTICE be observed, except so far as may be otherwise provided in this chapter. (Ala. Code § 3179.) § 629. Chancellors may examine answers in such cases in vacation. Chancellors may, in vacation, examine all answers in relation to writs of ne exeat and attachments returnable intO' chancery, and writs of seizure, and dis- charge, or reduce a,ny bail taken, or levy made, on appli- cation and reasonable notice to the adverse party. (Ala. Code § 3180.) § 630. Attachments on legal demands to subject equita- ble effects. Courts of chancery may also issue writs of attachment on legal demands, founded on any judgment or contract, express or implied, in such cases as attach- ments may issue from courts of law; which attachments operate only on the effects of the defendant held by an equitable title, or on demands owing by other persons, to which the defendant against whom the attachment issues is in equity entitled, whether due or not. (Ala. Code § 3181.) § 631. Attachments may issue before judgment for debt. To authorize the issue of equitable attachments, it is not necessary that the demand of the plaintiff should be reduced to a judgment, but the court may render a decree for the amount proved, and execution may issue to enforce the same as from courts of law. (Ala. Code § 3182.) § 632. Property to be specified. Equitable attachments must specify the property, effects, or demands, on which they are intended to operate ; and a copy of the bill, must, in such cases, be served with the summons. (Ala. Code § 3183.) §633. Replevy of property attached. Any property levied on by an equitable attachment may be replevied by the defendant, or any one for him, on giving bond with surety in double the value of the property levied on, to be approved by the sheriff, payable to the plaintiff, and conditioned as replevy bonds on attachments from courts of law. (Ala. Code § 3184.) § 634. Replevy bond to be returned. When property levied on by an equitable attachment is replevied, the ALABAMA STATUTES AND RULES 913 bond must be returned with the attachment. (Ala. Code' § 3185.) § 635. Lien on such attachments. Equitable attach- ments are a lien upon the property or debts attached from the service of the attachment. (Ala. Code § 3186.) §636. If property not delivered, execution issues on replevy bond. If a decree is rendered in a case in which an equitable attachment has been levied, and the prop- erty replevied is not forthcoming within such time as the court may direct, to be proved by the affidavit of the party before the register, the replevy bond in such case has the force of a judgment, and execution may issue thereon for the whole, or any portion of the penalty, as the court may direct, against any or all of the parties thereto. (Ala. Code § 3187.) § 637. Writs of ne exeat and attachment — Orders in respect to. Chancellors, circuit judges, and registers of the court in which the bill is filed, may make all neces- sary orders for the issuing of writs of ne exeat and equi- table attachments, and for the sale of personal property levied on, as in like cases from courts of law ; the money arising from such sale to be paid to the register. (Ala. Code § 3188.) § 638. Equitable attachment for benefit of surety in written contract. A writ of attachment may be issued out of the court of chancery, on the application of any surety, indorser, accommodation drawer, acceptor, or maker of any bond, bill, or note or other contract in writ- ing, against the principal debtor, to be levied on the property or effects of the defendant, whether held by a legal or equitable title, whenever such surety, indorser, acceptor, maker, or drawer could sue out an attachment at law if he was a creditor of such principal debtor; and the provisions in reference to attachments at law must be observed in the issue of such attachments, and such writ of attachment may be granted by the register in chancery. (Ala. Code § 3189.) § 639. When such attachments may be dissolved. When such attachments are sued out by any indorser, surety, acceptor, maker, or drawer, of any bond, bill, note. 914 EQUITY PRACTICE or other contract in writing, not due and payable, sucli attachment must be dissolved, on application to the chan- cellor, in vacation or term time, or by the register in vacation, on the principal debtor furnishing the com- plainant complete indemnity against his liability, and paying all costs which may have accrued on such attach- ment. (Ala. Code § 3190.) § 640. Decree in favor of surety. No decree must be rendered in favor of the complainant in such attachment, until he has paid the debt for which he is liable as the surety, indorser, accommodation maker, drawer, or ac- ceptor, of the defendant. (Ala. Code § 3191.) § 641. Creditor may intervene. If the surety die be- fore paying the debt, and there is no administration of his estate, or his personal representative fail or refuse for sixty days to revive the suit, the creditor may by petition intervene and prosecute the suit to a final decree, in his own name, becoming liable for the costs as if he had been the original complainant. (Ala. Code.§ 3192.) AkTICLE 28. GrAENISHMENT § 642, Garnishments may issue. On all decrees for the payment of money, or on all decrees for the payment of costs, and in all suits in which a decree for the payment of money may be rendered, a writ of garnishment may be issued by the register, under the rules and regulations prevailing in the circuit courts. (Ala. Code § 3193.) Aeticle 29. Seizure, Writs of § 643. Writs of seizure in aid of suit commenced in chancery. Writs may also issue from the court of chan- cery on an original bill, or in aid of a suit pending in such court, by the order of any chancellor, judge of the circuit court, or register, for the , seizure of personal property, when the same is claimed under an equitable title, or when a decree is sought against the same, and is in danger of being wasted, carried beyond the juris- diction of the court, or otherwise disposed of. (Ala. Code § 3194.) § 644. Affidavit to be made by plaintiff. The plaintiff ALABAMA STATUTES AND RULES 915 in such case must sustain his claim by affidavit, and give bond with surety, payable to the defendant, in double the value of the property, to be approved by the register, conditioned to pay all damages the defendant may sus- tain by the wrongful or vexatious suing out of such writ. (Ala. Code § 3195.) § 645. Property restored on giving bond. The officer executing such writ must restore the property seized to the defendant, on his giving bond in double the value of the same, with surety, to be approved by such officer, payable to the plaintiff, and conditioned to have such property forthcoming to answer the decree of the court. (Ala. Code § 3196.) § 646. When property delivered to plaintiff. If the defendant neglects, for five days after the seizure of such property, to give such bond, the sheriff must deliver the same to the plaintiff, on his giving bond with surety in double the value of such property, to be approved by the sheriff, payable to the defendant, conditioned, if un- successful in his suit, to return such property within thirty days after its determination. If the plaintiff fails for five days after notice by the sheriff that the defend- ant had failed to' give bond, the sheriff must deliver the property to the defendant. (Ala. Code § 3197.) § 647. Return of writs and bonds. Such writs, with the proper return thereon, and the bonds taken under the provisions of either of the last two sections, must be re- turned to the register of the court from which the writ issues. (Ala. Code § 3198.) § 648. Decree when plaintiff sustains his claim. If the claim of the plaintiff is sustained, the court may direct that if its decree in relation to such property is not per- formed within a specified time, execution may issue on the bond of the defendant for all, or such portion of its penalty as the court may determine under all the cir- cumstances. (Ala. Code § 3199.) § 649. Liability of plaintiff and his sureties. If the plaintiff is unsuccessful, and fails to deliver the property to the defendant within thirty days after the determina- tion of the suit, he and his sureties are liable to an action. 916 EQUITY PRACTICE and, in case of a recovery, to damages, not exceeding fifty per centum on the value of the property. (Ala. Code § 3200.) Article 30. Juey Trial in Chancery Court § 650. Trial of issues of fact. An issue of fact, directed to be tried by a jury, may be tried by a jury summoned to attend the court of chancery, or may be certified for trial to the circuit court of the district. A change of the venue of the trial may be had for good cause shown to the chancellor, as in civil cases in courts of common law. (Ala. Code § 3201.) § 651. Evidence in such trials — Parties examined. Such issue must be tried upon the like evidence as a suit at law, together with such parts of the bill, answers, depositions, and other proceedings in the cause, as the court may order; and the court may also order the exam- ination of the parties to the suit, allowing the other party to impeach or contradict such evidence. (Ala. Code § 3202.) § 652. Proceedings to summon jury, etc., before chan- cellor. If such issue is to be tried before the chancellor, he may make the necessary order for a jury to be sum- moned, and witnesses to be subpoenaed by the register of the district in which the trial is to be had ; and render judgments, conditional, and absolute, as the law directs. (Ala. Code § 3203.) § 653. Pay of jurors and how taxed. In all cases in which jurors are summoned to attend upon the chancery courts, they must be allowed the same compensation as jurors attending upon the circuit courts, to be paid out of the county treasury on the certificate of the register. (Ala. Code § 3204.) § 654. Practice in partition suits when title or adverse claim involved. In suits for partition of lands, either by metes and bounds, or by sale for division when the same cannot be equitably partitioned among the owners, if the defendant denies the title of the complainant, or asserts an adverse claim or title in himself, the chancellor need not dismiss the bill, but may direct the issue as to ALABAMA STATUTES AND RULES 917 the title of the complainant, or as to such adverse claim or title of the defendant, to be tried as other issues of fact are triable, according to the three sections next pre- ceding; if neither "party to the suit demands a jury, the chancellor shall try such issue as to the title of com- plainant, or as to such adverse claim or title of defend- ant, together with the other facts or issues of the case. (Ala. Code § 3205.) Abticle 31. Call op Docket ; Setting Cases § 655. Call of docket — Setting causes for hearing. If the term is more than one week, on the first day the docket must be called, not peremptorily, but for orders which may be taken by consent, or for the submission of causes which stand on decrees pro confesso. The call of the docket thereafter may be peremptory. The par- ties may by consent set down causes for hearing on such day of the term as they may select. (Ala. Code § 3206.) Article 32. Deceees, Foem and Effect of and Lien of § 656. Decrees in writing — Rendered in term time or vacation. Decrees must be rendered in writing, in term time, if practicable; but in cases deemed by the chan- cellor difficult, he may reserve the rendition of decree until vacation, and may render it at any time before or during the next term. (Ala. Code § 3207.) § 657. Cause may be referred to arbitration. By agree- ment in writing filed with the register in vacation, or by an entry on the minutes in term time, the parties may refer a cause to an arbitrator of their selection, for final decree. The arbitrator must certify the decree, when rendered, to the register, and the register must enter it oh the minutes of the court. Such decree shall have the force and effect of a decree rendered by the chancellor; and therefrom an appeal may be taken to the supreme court, as from other final decrees in chancery. (Ala. Code § 3208.) § 658. Orders and decrees by consent. Chancellors may make orders and render final decrees at any time by 918 EQUITY PRACTICE consent of tlie parties or their counsel in writing. (Ala. Code § 3209.) § 659. Liens and priority of decrees. Executions issued on decrees of a court of chancery, for payment or re- covery of money, are liens upon real and personal prop- erty subject to execution, from their delivery or filing for record, in the same manner and to the same extent, and the rules as to the priority of liens from such court are the same, as in courts of law. (Ala. Code § 3210.) § 660. Decrees for conveyances and releases operate as such — Executed by commissioner. When a decree is made for a conveyance, release, or acquittance, and the party against whom the decree is made does not execute the same by the time specified in the decree, such decree operates in all respects as fully as if the conveyance, re- lease, or acquittance, was made ; or the court may decree, in default of the execution of such conveyance, release, or acquittance, the same to be executed by the register or a commissioner in the name of the party ; and the con- veyance, release, or acquittance, when so executed, is as valid in all respects as if executed by the party; or the court may directly divest title out of one party and vest it in another. (Ala. Code § 3211.) § 661. Decrees — How rendered. On the submission of any cause for final decree, the chancellor may render de- cree granting such relief as the equity and justice of the case may require, in favor of any one or more complain- ants, and denying relief to any one or more complain- ants and against any one or more defendants as they may be entitled under the facts, or may, if justice shall require it, set aside the submission for the purpose of amendment, or taking further testimony. (Ala. Code § 3212.) Aeticle 33. Deceees Enfoeced by Attachment, Exe- cution, Sequesteation § 662. Decrees enforced by attachment or sequestra- tion. Courts of chancery may also enforce their decrees, orders, and rules by process of attachment against the ALABAMA STATUTES AND EULES 919 party or officer in contempt, or by process of sequestra- tion against his property. (Ala. Code § 3213.) § 663. Decree for performance of some act to prescribe time. If a decree is for tlie execution of a conveyance, the delivery of deeds, or any other specified act, the de- cree must, in all such cases, prescribe the time within which such act is to be performed. (Ala. Code § 3214.) § 664. Attachment on affidavit of failure to perform. Upon an affidavit being filed with the register by the party entitled to have such act done, his agent, or solic- itor, stating that the decree of the court has not been per- formed, the register must issue an attachment against the delinquent party, upon which he may be arrested and committed to jail until he performs such act, or he is discharged by a special order of the chancellor ex- tending the time for the performance; and if such act is not performed within the time as extended, another at- tachment may issue on the affidavit of the party, his agent, or solicitor. (Ala. Code § 3215.) § 665. If attachment not executed, sequestration fol- lows. Upon the issue of an attachment, if the delinquent cannot be found, a writ of sequestration may issue against the estate of such party to compel obedience to the de- cree. (Ala. Code § 3216.) § 666. Decrees — ^How enforced. Courts of chancery are authorized to issue such process, mesne and final, as has been used in such courts; and all writs for the collection of money, to obtain the possession of land or personal property, in use in the common-law courts, are to be adapted to the execution of decrees in the courts of chan- cery. (Ala. Code § 3217.) § 667. Return day of such process. Writs from the court of chancery for the collection of money, or to ob- tain the possession of lands or personal property, may be made returnable on the first Monday of a month, to be specified in the writ; all other process, as the chancellor or register may direct, unless the return is fixed by law. (Ala. Code § 3218.) § 668. Execution on decrees for enforcement of liens. In all cases when an account is taken between the parties, 920 EQUITY PRACTICE execution as at law may issue for the amount of indebt- edness ascertained by the decree of the court; and in all foreclosure suits, or suits for the enforcement of equitable liens, execution may issue for the balance found due after a sale of ithe property ordered and decreed to be sold. (Ala. Code § 3219.) § 669. Decree on partition. A final decree of partition is operative to vest title, though releases or conveyances are not executed. (Ala. Code § 3220.) § 670. Sheriff liable for failure to collect money. For failing to collect money on any execution from the court of chancery, the sheriff and his sureties, or any or either of them, are liable to the same penalties, to be recovered in the same manner as on failure to collect execution from the law courts ; the motion to be made by the plain- tiff in the circuit court of the county in which the court from which the execution issues is held. (Ala. Code § 3221.) Aeticle 34. Costs in Chancery § 671. Costs at discretion of chancellor. Costs may be apportioned at the discretion of the chancellor; and in all cases where costs are decreed against any party who has given security for costs, execution may issue against such security. (Ala. Code § 3222.) Aeticle 35. Sales in Chanceky § 672. Sales to be made by register. "When any prop- erty is ordered to be sold by the decree of any chancery court for the satisfaction of any debt secured by any mortgage or deed of trust, such sale shall in all cases be made by the register of the court ordering the same. (Ala. Code § 3223.) § 673. Forthcoming bond. When the sale of any per- sonal property is decreed, the register, or other person directed to make such sale, may take from the defend- ant a forthcoming bond, in double the amount of the prop- erty, in no case to exceed double the amoimt of the decree, for the delivery of such property on the day of sale. (Ala. Code §3224.) ALABAMA STATUTES AND EULES 921 § 674. Effect of forfeiture. If the property is not de- livered, such register, or person directed to make such sale, must return the bond "forfeited," in which case the bond shall have the force of a judgment; and execu- tion may issue against all the obligors on such bond. (Ala. Code § 3225.) § 675. Protection of tenant having crop planted on lands decreed to be sold. A tenant or occupant of lands ordered or decreed to be sold by the court of chancery, having a crop planted or growing on such lands, or about being planted, may retain possession until the expira- tion of the current year, on securing to the purchaser the payment of the reasonable rent; such rent must, before or after the sale, be ascertained and determined by the chancellor, and the tenant or occupant must enter into bond, in a sum equal to double the amount of such rent, payable to the register, and by him approved, with sufficient surety, and with condition for the payment of such rent to the purchaser on the expiration of the year ; and if, on the expiration of the year, such rent, or any part thereof, is not paid to the purchaser, such bond has the force and effect of a judgment, and execution may be issued thereon by the register against any or all the obligors in such bond, for so much of such rent as remains unpaid. (Ala. Code § 3226.) Article 36. Exiles of Peactice Adopted by the Supreme Court, and by Chancellors, Recognized §676. Rules of practice adopted by supreme court. All the rules now in force, which have been adopted by the supreme court, not contrary to the provisions of this Code, are recognized ; and power is granted to such court to adopt such other rules to regulate the practice of the court of chancery, or such modifications of the existing rules as they may deem proper, and also to furnish forms of proceeding, to mould the process of the chancery court, and to prescribe rules of evidence in the same, from time to time, as experience may determine that the existing rules do not fully meet the ends of public justice. (Ala. Code § 3227.) 922 EQUITY PRACTICE § 677. Chancellors may adopt rules to facilitate busi- ness. The several chancellors may, from time to time, adopt rules to facilitate the business of their respective divisions, not contrary to law nor inconsistent with the rules established by the supreme court. (Ala. Code § 3228.) Injunctions § 678. By whom granted. Injunctions may be granted, returnable into any of the courts of chancery in this state, by the judges of the supreme and circuit courts and chan- cellors and judges of courts of like jurisdiction. (Ala. Code § 4512.) § 679. Issuing injunction, by registers. Eegisters in chancery may issue an injunction when it has been granted by any of the judges of the supreme or circuit courts or chancellors or judges of the city courts when authorized to grant injunctions, upon the fiat or direc- tion of the judge or chancellor granting the same en- dorsed upon the bill of complaint and signed by such judge or chancellor. (Ala. Code § 4513.) § 680. Injunction of judgment a release of errors. An injunction obtained by a defendant to a judgment at law, to stay proceeding thereon, operates as a release to errors as to such defendant. (Ala. Code § 4514.) § 681. Bond on injunction of judgment. No injunc- tion must issue to stay proceedings after judgment in a personal action, until the party at whose application the writ issues gives bond with surety, in double the amount of such judgment, payable to the opposite party, and approved by the register, conditioned, on the dissolution of such injunction, to pay the amount of the judgment enjoined with interest, and also such damages and costs as may be decreed against such party. (Ala. Code § 4515.) § 682. Bond on injunction after recovery of lands. No injunction must issue to stay proceedings at law after judgment, in any action for the recovery of lands, unless the party give bond with surety, payable to the opposite party, and approved by the register, in such sum as the officer granting the application directs, conditioned for ALABAMA STATUTES AND RULES 923 the payment of the damages in such judgment, if en- joined, and also all damages and costs which the plain- tiff in such judgment sustains by the suing out of such injunction, if the same is dissolved. (Ala. Code § 4516.) §683. Bond on injunction in other cases. In other cases, the party must give bond with surety, in such sum as the officer granting the application directs, payable to the party against whom the application is granted, and approved by the register, and conditioned to pay all damages and costs which any person may sustain by the suing out of such injunction, if the same is dissolved. (Ala. Code § 4517.) § 684. Notice of injunction to stay a judgment served on the attorney is valid. Notices of injunctions, or other restraining process, staying proceedings in suits or on judgments at law, served upon the attorney of the party on whom such injunction or process is to operate, are valid. (Ala. Code § 4518.) § 685. Application for injunction refused — How re- newed — When refusal final. If any application is made to a circuit judge or judge of like jurisdiction, for an in- junction, and refused, no other circuit judge or judge of like jurisdiction can act on the application, but the appli- cation may be made to a chancellor or judge of the su- preme court ; if refused by a chancellor, it may be renewed to a judge of the supreme court, but no other officer; and, if refused by a judge of the supreme court, cannot be renewed. (Ala. Code § 4519.) § 686. Application to justice of supreme court. No ap- plication must be made to a judge of the supreme court for an injunction, or other equitable process which may be granted by any other judge or officer, unless the same has been made to such other judge or officer, and refused by him. (Ala. Code § 4520.) § 687. Refusal to grant injunction indorsed on bill. When an application for an injunction is refused, the officer to whom the same is made must indorse his re- fusal on the bill, and sign his name thereto ; and any one erasing such indorsement is guilty of a misdemeanor, Whitehouse'B. P. Vol. II — 3 924 EQUITY PRACTICE and, on conviction thereof, must be fined not less than five hundred dollars. (Ala. Code § 4521.) § 688. On dissolution of injunction, daonages granted for delay. Whenever an injunction to stay proceedings in an action is dissolved on a final hearing, the chancellor may decree six per centum damages on the amount of money for which such judgment was enjoined, if of opin- ion that the injunction was obtained for delay. (Ala. Code § 4522.) § 689. Effect of bond on dissolution of injunction of a judgment — Execution. A bond to enjoin proceedings at law on a judgment for money, upon the dissolution there- of, in whole or in part, either upon an interlocutory or final decree, has the force and effect of a judgment; and being certified by the register to the clerk of the court in which the judgment was rendered, execution may issue against any or all the obligors thereto, for the amount of such judgment which has been enjoined, in- terest and the damages decreed. (Ala. Code § 4523.) § 690. Execution for costs. The register may also issue execution for costs, if decreed against the party obtain- ing the injunction, against any or all the parties to the bond. (Ala. Code §4524.) § 691. If injunction of judgment is dissolved pending suit, refunding bond required. When an interlocutory decree is made dissolving an injunction to stay proceed- ings on a judgment at law, the chancellor must require of the defendant a refunding bond, in double the amount of the sum enjoined, payable to, and to be approved by the register, conditioned to refund the money and interest he may collect on the judgment, if the same is, on the final hearing of the bill, perpetually enjoined; and the court may render a final decree on such bond against any or all the parties thereto. (Ala. Code § 4525.) § 692. Motion to dissolve or discharge in vacation. A defendant may, in vacation, upon ten days ' notice to the complainant or his solicitor, move, before the chancellor of the division in which the bill is filed, to dissolve an injunction for want of equity in the bill or on the coming in of the answer, or to discharge an injunction, to be ALABAMA STATUTES AND RULES 925 heard on the original papers or certified copies thereof; and motions to discharge and dissolve may be made and heard at the same time, without prejudice to either. (Ala. Code § 4526.) § 693. Order for injunction made before bill filed, valid. It is not ground of objection to an injunction that the order granting the same was made prior to the filing of the bill. (Ala. Code § 4527.) § 693a. Setting time and place for hearing application. When a bill praying for an injunction is presented for fiat to any judge or chancellor authorized to grant in- junctions, he may, if in his opinion no substantial injury would result to the complainant from delay, set a time and place for the hearing of the application, not more than ten days thereafter, and may require the complain- ant to give the defendant or defendants to be affected by the writ at least three days ' notice of such time and place and to serve them with a copy of the bill, if to be found within the state, and if the defendant or defendants can- not with due diligence be served with such notice and copy within the time prescribed, the chancellor or judge may, in his discretion, on the day fixed, proceed to hear the application without notice or to continue the hear- ing to a future day, so that notice may be given the de- fendant. (Ala. Code § 4528.) § 694. Evidence or testimony admissible upon hearing. Upon the hearing of the application for injunction, the sworn answer of the defendant may be considered as well as the bill, and both sides may introduce affidavits of themselves or other witnesses; and upon consideration, the judge or chancellor must determine whether the in- junction be granted or refused. (Ala. Code § 4529.) § 695. Fiat indorsed upon bill. If the injunction be granted, the judge or chancellor must indorse upon the bill his fiat to that effect, requiring the proper bond as otherwise prescribed by law, and thereupon the writ may issue; and if he refuse the writ, he shall likewise indorse his refusal upon the bill and sign his name as such judge or chancellor. (Ala. Code § 4530.) §696. Appeal from order granting or refusing writ. 926 EQUITY PRACTICE From the order granting or refusing the writ of injunc- tion, an appeal will lie to the supreme court within ten days, to be heard as preferred cases in that court, on the first Thursday the court is in session after the expira- tion of the ten days, or as soon thereafter as may be. (Ala. Code § 4531.) §697. Motion to dissolve injunction. When the in- junction has been granted after the hearing provided for in the four preceding sections, no motion to dissolve injunction will lie as a matter of right, except for mat- ters subsequently occurring. (Ala. Code §4532.) § 698. Restraining^ order. If notice is required to the defendant of the hearing of the application for injunc- tion, the judge or chancellor may, in his discretion, grant a temporary restraining order upon the execution of the bond with the sureties by the complainant, payable to the defendant, restrained, in the sum and with condition to be prescribed by the judge or chancellor. (Ala. Code § 4533.) § 699. Renewing application to judge of supreme court. If the judge or chancellor, under the provisions of the preceding section, requires notice to be given the defend- ant, the complainant may, in his discretion, renew his application to the judge of the supreme court instead of further pressing his application before the judge or chancellor. (Ala. Code § 4534.) §700. Evidence upon hearing of motion to dissolve. Upon the hearing of motion to dissolve an injunction, the court may consider the sworn bill and answer, whether the answer contains denials of the allegations of the bill or independent defensive matter, and also such affidavits as any party may introduce. (Ala. Code § 4535.) § 701. Bond for reinstatement of injunction. Upon the dissolution of the injunction by the chancellor or judge, he need not fix the bond for the reinstatement of the in- junction by the appeal, unless in his opinion the case is a proper one for such reinstatement; but if he shall not allow a reinstatement of the injunction, the complain- ant may make application therefor to a judge of the supreme court; and if he determine that the case is a ALABAMA STATUTES AND RULES 927 proper one for the reinstatement of the writ, he shall fix the amount and conditions of the bond to be executed, which may be approved by the clerk or register of the lower court. (Ala. Code § 4536.) Eecefvebs § 702. Receivers appointed by chancellor or register. Receivers may be appointed by the chancellor in term time or vacation, and by the register in vacation, upon application in writing ; and when the application is made in vacation, reasonable notice of the time of such appli- cation, and the person to whom it will be submitted, must be given, or a good reason shown to the chancellor or reg- ister for the failure to give the same. (Ala. Code § 5726.) § 703. Appointment by register — Suspension of order. When an order appointing a receiver is made by the register, it shall be subject to appeal to the chancellor, which may be heard in term time or vacation; and such order must be suspended whenever the appellant enters into bond with sufficient sureties, to be approved by the register, in such^sum as he shall prescribe, payable to the appellee, and conditioned to pay the appellee all such costs and damages as he may sustain in case the appeal is not prosecuted to effect. (Ala. Code § 5727.) § 704. Complainant must give bond before appointment of receiver. When application is made to the chancellor or register for the appointment of a receiver, such chan- cellor or register must, before making such appointment, require the complainant to enter into bond with surety, in such sum as the chancellor or register may prescribe, payable to the opposite party, and approved by the reg- ister, with condition to pay all damages which any per- son may sustain by the appointment of the receiver, if such appointment is vacated, or receiver removed or dis- charged because improvidently appointed. (Ala. Code § 5728.) § 705. Any person damaged may sue on bond. Any person damaged by the appointment of the receiver, in the event such appointment is vacated or discharged, as provided in the preceding section, may recover, by suit 928 EQUITY PRACTICE upon such bond, in his own name, all damages so sus- tained, not exceeding the penalty of the bond. (Ala. Code § 5729.) . § 706. Receiver may be sued without leave of court. A receiver or manager of property, appointed by any court, may be sued in respect to any act or transaction of his, in carrying on the business connected with such prop- erty in this state, without the previous leave of the court in which such receiver or manager was appointed. (Ala. Code § 5730.) § 707. Service of process on receivers. In suits at law or in equity against foreign or domestic receivers hold- ing, owning, claiming, or operating property in this state, the summons or summons and complaint may be executed by the delivery of a copy thereof to the receiver if he is found within the state; or, upon affidavit being made by the plaintiff, his agent or attorney, that the receiver can- not be found within the state, then ser%dce may be had by leaving a copy of the summons, or, if the action be at law, a copy of the summons and complaint, with any agent in the employ of such receiver; and if therg be two or more receivers of the same estate, firm, person, or corporation, service upon one of such receivers, or his agent as here- in provided, is sufficient. (Ala. Code § 5731.) Appeals § 708. Appeals to supreme court on all final judgments. From any final judgment or decree of the chancery, cir- cuit, or courts of like jurisdiction, city, or probate court, except in such cases as are otherwise directed by law, an appeal lies to the supreme court, for the examination thereof, as matter of right, on the application of either party, or his personal representative ; and the clerk, reg- ister, or judge of probate, must certify the fact that such appeal was taken, and the time when, as part of the record, which gives the supreme court jurisdiction of the case. (Ala. Code § 2837.) § 709. Appeals from certain interlocutory decrees. From any decree rendered by the chancery court in term time, or by the chancellor in vacation, or by the county ALABAMA STATUTES AND RULES 929 courts of law and equity in term time, or by the judge of such, sustaining or overruling a demurrer to a bill in equity, or sustaining or overruling a plea to such bill (or sustaining or overruling a motion to dismiss such bill for want of equity), an appeal lies to the supreme court to be taken within thirty days after the rendition of such decree ; the appeal shall be heard and determined by the supreme court in preference to all other than criminal cases, and if the decree of the chancellor, or judge of the county court of law and equity, is reversed, the court shall render such decree as should have been rendered by the chancellor; but nothing in this section shall be so construed as to prevent an assignment of errors on such decrees on appeals taken on final determi- nation of the cause if appeals are not taken under this section. (Ala. Code § 2838.) § 710. Appeal on orders sustaining, dissolving, or dis- charging injunctions. An appeal lies to the supreme court on all interlocutory orders, in term time or vaca- tion, sustaining, dissolving, or discharging injunctions, which must be heard and determined at the first term after the appeal is taken, or if the supreme court is in session when the appeal is or has been taken, then the same shall be heard during such session, at least three days' notice of the appeal having first been given to the adverse party. (Ala. Code § 2839.) § 711. Appeal from order appointing or refusing re- ceiver. An appeal lies from an order of the chancellor, made in term time or vacation, appointing or refusing to appoint a receiver, within thirty days from the filing of the order with the register; and such appeal must be taken and deemed by the supreme court as a preferred case, and must be heard during the term to which it is returnable in preference to all other than criminal cases, or other preferred cases having priority on the docket of the court. (Ala. Code § 2840.) § 712. Appeals from partial settlements. From any de- cree rendered by a court of equity, or court of probate, on a partial or annual settlement of an estate of a de- ceased person, an appeal lies to the supreme court, to 930 EQUITY PRACTICE be taken within twelve months after the rendition of such decree; but this section shall not be so construed as to prevent an assignment of error on such decree upon appeal taken after a final determination of the cause. (Ala. Code § 2845.) § 713. Supersedeas bond. When a judgment or decree is for the payment of money only, the appeal does not operate as a supersedeas, or to stay or suspend the exe- cution of such judgment or decree (except in such cases as are otherwise provided), unless bond be given by the appellant, or some other person, in double the amount of the judgment or decree, including costs, payable to the appellee, with sufficient sureties, and with condition to prosecute the appeal to effect, or, if he fails therein, to satisfy such judgment as the supreme court may render in the premises. (Ala. Code § 2873.) § 714. Supersedeas bond when judgment or decree for payment of money, and for other acts. If the decree or judgment be for the payment of money, and also for the performance of some other act or duty, or for the recovery of property, real or personal, or the possession thereof, or for the sale of property, real or personal, and the party appealing wishes to supersede the execution of such judg- ment or decree, he must, unless otherwise provided, give bond with good and sufficient sureties, payable to the party recovering the judgment or decree, in double the amount of the money, with condition to prosecute to effect the appeal, or, if he fails therein, to pay such judg- ment as the supreme court may render in the premises, and must also execute bond with good and sufficient sure- ties, payable to the clerk or register, in such sum as the judge or chancellor may in writing prescribe, with con- dition to pay all such costs and damages as any party aggrieved may sustain by reason of the wrongful appeal and suspension of the execution of the judgment or de- cree; or if the party appealing wishes to supersede the judgment or decree as to the payment of the money only, the bond first above mentioned may be executed, sus- pending the judgment or decree in that respect only; or if the party appealing wishes to supersede fhe execution ALABAMA STATUTES AND RULES 931 of the judgment or decree in the other respect only, the bond secondly above mentioned may be executed, super- seding the execution of the judgment or decree in that respect only.. (Ala. Code § 2874.) § 715. Supersedeas bond in other cases. If the judg- ment or decree be only for the performance of some act or duty, or for the recovery of property, real or personal, or the possession thereof, or for the sale of property, real or personal, unless otherwise provided, the party appeal- ing, if he wishes to supersede the execution of the judg- ment or decree, must execute bond with good and suffi- cient sureties payable to the clerk or the register in such sum as the judge, chancellor, or register may in writing prescribe, with condition that if he fail in the appeal he will pay such judgment as the supreme court may render in the premises, and all such costs and damages as any party aggrieved may sustain by reason of the wrongful appeal and suspension of the execution of the judgment or decree. (Ala. Code § 2875.) § 716. Limitation of appeals. Appeals under this chap- ter, except in such cases as a different time is prescribed, must be taken within six months from the rendition of the judgment or decree. (Ala. Code § 2868.) Partition § 717. Unknown parties — Notice — Shares paid into court. "When it is necessary to make any persons defend- ants to a bill in chancery or a petition in the probate court filed for the partition of property or for a sale thereof because it cannot be equitably divided, and the names of all or any of such persons are unknown to the com- plainant or petitioner and cannot be ascertained on dili- gent inquiry, if the complainant or petitioner shall state in a sworn bill or petition, or in an affidavit thereto an- nexed, that the names of such persons are unknown, and that he has made diligent inquiry to ascertain the same, proceedings may be had against them without naming them; and the register or judge of probate, as the case may be, must make publication as in case of nonresident defendants, describing such unknown parties as near as 932 EQUITY PRACTICE may be by the character in which they are sued, and with reference to their title or interest in the property sought to be partitioned or to be sold for division of the pro- ceeds. The shares or interest of such unknown parties in the proceeds of any such sale shall be paid into court under such directions as may be ordered by the court, and ^hall there be retained and paid out to the proper parties when ascertained. (Ala. Code § 5207.) § 718. Jurisdiction of chancery court to divide or sell for division. The chancery court shall have jurisdiction to divide or partition, or sell for partition, any property, real or personal, held by joint owners or tenants in com- mon, whether the defendant denies the title of the com- plainant or sets up adverse possession or not. (Ala. Code § 5231.) § 719. Controverted title and all equities disposed of. If the title of the complainants seeking partition or sale of lands for a division shall be controverted, it shall not be necessary for the court to dismiss the bill or delay the suit for an action at law to try the title, but the question of title shall be tried and determined in the suit by the chancery court, which shall have power to determine all questions of title, and to remove all clouds upon the title, if any, of the lands whereof partition is sought and to apportion incumbrances, if partition be made of land in- cumbered and it be deemed proper to do so; and the court may adjust the equities between and determine all claims of the several co-tenants, as well as the equities and claims of the incumbrancers. (Ala. Code § 5232.) § 720. Partition without commissioners — Owelty. If, at the hearing, it appear that the intervention of commis- sioners is unnecessary to secure an equal partition in kind, or that the same can be effected by providing owelty, and that it would best promote the interest of the parties, the chancery court may decree the partition and fix the amount to be paid by one or several co-tenants to another or others; or this may be done on hearing the report of the commissioners. (Ala. Code § 5233.) ALABAMA STATUTES AND EULES 933 Quieting Title, Deteemination of Claims to Land § 721. Person in possession of and claiming lands may file bill to clear title. When any person is in peacable possession of lands, whether actual or constructive, claim- ing to own the same, in his own right or as personal repre- sentative or guardian, and his title thereto, or to any part thereof, is denied or disputed, or any other person claims or is reputed to own the same, or any part thereof, or any interest therein, or to hold any lien or incumbrance thereon, and no suit is pending to enforce or test the valid- ity of such title, claim, or incumbrance, such person or his personal representative or guardian, so in possession, may bring and maintain a suit in equity to settle the title to such lands, and to clear up all doubts or disputes con- cerning the same. (Ala. Code § 5443.) § 722. Contents of biU. The bill must describe the lands with certainty, must allege the possession and ownership of the complainant, and that the defendant claims or is reputed to claim some right, title, or interest in or incum- brance upon such lands, and must call upon him to set forth and specify his title, claim, interest, or incumbrance, and how and by what instrument the same is derived and created. (Ala. Code § 5444.) §723. Contents of answer. If the defendant shall answer claiming any estate or interest in, or incumbrance upon such lands, he must, in such answer, specify and set forth the title, claim, interest, or incumbrance so claimed, and if not claimed in or upon the whole of the lands, he must specify and describe with sufficient certainty, the part in or upon which the same is claimed, and the man- ner in which and the sources through which such title, claim, interest, or incumbrance is claimed to be derived and created. (Ala. Code § 5445.) § 724. Jury trial on demand — Decree. Upon the appli- cation of either party, a trial by jury shall be directed to determine the issues or any specified issue of fact pre- sented by the pleadings; and the court is bound by the result, but may, for sufficient reasons, order a new trial thereof; and when such trial is not requested, or as to 934 EQUITY PRACTICE the facts for. which the same is not requested, the court shall consider and determine such title, claim, interest, or incumbrance, and shall, upon the finding of the jury, or upon such consideration and determination, finally adjudge and decree whether the defendant has any right, title, or interest in, or incumbrance upon, such lands, or any part thereof, and what such right, title, interest, or incumbrance is, and in or upon what part of the lands, the same exists ; and such decree is binding and conclusive upon all the parties to the suit. (Ala. Code § 5446.) §725. Recording and registering decree in probate office. The register shall within thirty days from the rendition of a decree under this chapter, file the same or a certified transcript thereof in the probate court of the county in which the land lies for record, and tax the expense thereof in the costs of the cause. The probate judge shall record such decree in the same book and man- ner in which deeds are recorded, and index the names of defendants or parties against whom the relief is granted in the direct index, and the names of the complainants or parties quieted in possession of the land in the reverse index. (Ala. Code § 5447.) § 726. Decree when defendant fails to answer, or dis- claims interest — Costs. No decree for costs shall be had against a defendant who suffers a decree pro confesso against him, or who, in his answer, disclaims all title to, interest in, or incumbrance on such lands; but the court shall, in such cases, without further proof, decree that such defendant has no estate or interest in, or incum- brance on, such lands, or any part thereof; and any de- fendant who shall, by answer under oath, deny that he claims, or ever has claimed or pretended to have, any estate, interest, or incumbrance in or upon such lands or any part thereof, shall be entitled to recover his costs in the suit. (Ala. Code § 5448.) § 727. When state may maintain suit. The state may maintain a suit under the provisions of this chapter, to quiet the title to any lands belonging to the state, or any school lands, or any lands belonging to any educational or charitable institution which is wholly or partially sup- ALABAMA STATUTES AND liULES 935 ported by the state, whether the state or owner of the legal title to such lands is in possession thereof or not. (Ala. Code § 5449.) Power to Set Causes Down fob Trial § 728, Powers — Notice — Jury trial. After the passage and approval of this act, the several judges of the law and equity courts of this State, established by the present session of the Legislature of Alabama, or that may here- after be created, are hereby authorized and empowered to set down for trial during any week of the court any cause pending in said court when the defendant or defendants have been served with notice of process in said cause for twenty days or, in case of non-residents, after publication has been perfected as to such non-residents for a period of twenty days, provided that in causes where juries have been demanded, the party or parties demanding a jury trial shall be given a jury trial of his cause ; all local laws to the contrary, notwithstanding. (Ala. Gen. Laws, 1911, No. 186, p. 153, §L) RULES OF COURT * Gestbral Information § 729. Court always open for certain purposes — ^Notice of hearing appeals from register. The courts of chancery shall be deemed always open for the purpose of filing bills, answers, and other pleadings, for issuing and return- ing original and mesne process and commissions by the register; and for making by and before the chancellor all interlocutory motions, orders, decrees, and other pro- ceedings not affecting the merits of causes, but prepara- tory to their hearing upon the merits ; and, also, for carry- ing into execution the decrees and orders of such chancery courts and chancellors. This rule includes the hearing of appeals from the register; which motions and appeals can be heard in vacation, at any time or place (within the state), upon ten days' notice of the time and place of making the same, and the decree or order made and for- * From the Cade of 1907, corrected to January 1, 1915. 936 EQUITY PRACTICE warded to the register from that or any other place. (Ala. Cliancery, Rule 1.) § 730. Powers of register in vacation — Appeal to chan- cellor, how certified. Registers in chancery, during the vacation of their respective courts, may make and direct all such interlocutory orders, decrees, and other proceed- ings not affecting the merits, nor extending to the deci- sion of demurrers, or testing the equity of the bill, the granting or dissolving of injunctions, or the setting aside of writs of ne exeat, or equitable attachments, or to any other order which is required by statute to be made by the chancellor in court, but preparatory to the hearing of all causes upon their merits. Such orders and decrees shall have the same effect as if made by the chancellor; subject, however, in all cases, to the control of the latter, by appeal, to be heard and decided by him, either in vaca- tion or term time. When an appeal shall be taken from the register to the chancellor or court, he shall certify the appeal in the nature of a report. (Ala. Chancery, Rule 2.) § 731. Register keeps book — Solicitor draws up appli- cation, which is transcribed with indorsement. The regis- ter shall keep a book, in which shall be entered all decrees and orders taken before him. The solicitor of the party applying to the register for any decree or order shall draw the same out with care, describing the cause, the date of the application, and the notice given to the adverse party. If such decree or order shall be granted, the register shall indorse thereon ' ' granted, ' ' and date and sign the same, and cause the said order, application and grant" to be transcribed on said book; which book shall be one of record of his office. (Ala. Chancery, Rule 3.) §732. When register grants orders. Decrees and orders may be applied for before the register every Mon- day. This rule shall not apply to orders for the issuing of writs of ne exeat and equitable attachments, and for the sale of personal property levied on, in granting which registers shall not be restricted to Mondays. If the regis- ter should not get through with the business before him on any rule-day, he may continue his sittings from day to ALABAMA STATUTES AND RULES 937 day until such business is disposed of. (Ala. Chancery, Rule 4.) § 733. Notice, when necessary. No notice shall be necessary to obtain an order of publication against a defendant, a decree pro confesso, an order appointing a guardian ad litem, an attachment against the body or effects, a writ of sequestration, or to examine as a witness a party defendant, subject to all legal exceptions; but in all other cases, not otherwise directed by statute, or in these rules, decrees and orders shall only be made by the register upon five days' notice to the adverse party; which notice must be in writing, and must set forth the nature of the decree or order applied for, a copy of which shall be filed with the register. (Ala. Chancery, Eule 5.) §734. The register being interested, special register acts. In all cases when the register is interested or related to the parties within the fourth degree of consan- guinity or affinity, it shall be the duty of the chancellor, on the motion of either party, to appoint a special regis- ter, who shall perform all the duties, and have all the powers and jurisdiction in the cause which are devolved by law upon the register. The general register shall, however, issue process, make the records, and keep the files, unless otherwise ordered by the court. (Ala. Chan- cery, Eule 6.) § 735. Rules of English chancery. In all cases where the statutes of this state, the decisions of this court, or the rules prescribed by it, do not apply, the practice in chancery shall be regulated by the rules, orders, and prac- tice of the English court of chancery (prior to and includ- ing those of May, 184.5, but not afterwards), so far as the same may reasonably be applied, consistently with the institutions of this country, not as positive rules, but as furnishing proper analogies to regulate the practice. (Ala. Chancery, Eule 7.) § 736. Stating part, divided and numbered. The stat- ing part of all bills must be divided into sections, and numbered consecutively, 1, 2, etc. (Ala. Chancery, Eule 8.) § 737. Interrogatories, divided and numbered. The in- 938 EQUITY PRACTICE terrogatories contained in the interrogating part of such bill shall be divided from each other as conveniently as may be, and numbered consecutively, 1, 2, 3, etc. (Ala. Chancery, Eule 9.) § 738. Containing blanks, defective. Bills which con- tain blanks shall be considered defective, and may be ordered to be taken off the file. (Ala. Chancery, Eule 10.) § 739. Complainant prescribes matters to be answered by note. The complainant shall make a note in writing, at the bottom of the bill, as to the particular statements or interrogatories, by number, which he desires each defendant to answer; and the answer need not go beyond such requisition, except for such defendant'^ own pro- tection. (Ala. Chancery, Eule 11.) §740. Foot-note specifying matters to be answered, part of bill. The note at the foot of such bill, specifying the statement or interrogatories which each defendant is required to answer, shall be considered and treated as part of the bill ; and the addition of any such note to such bill, or any alteration in, or addition to such note, after the bill is filed, shall be treated as an amendment to the bill. (Ala. Chancery, Eule 12.) §741. Form of interrogating part. Instead of the words heretofore in use, preceding the interrogating part of the bill, and beginning with the words "To the end, therefore," such interrogating part in such bills shall be to the effect following: "To the end, therefore, that the said defendants may show why your orator should not have the relief hereby prayed, and may, upon their respec- tive oaths, and according to the best and utmost of their knowledge, remembrance, information and belief, respec- tively, full, true, direct and perfect answer make to such of the statements, or the several interrogatories herein- after numbered and set forth, as by the note hereunder written they are respectively required to answer — that is to say: 1. Whether, etc. 2. Whether, etc." (Ala. Chan- cery, Eule 13.) §742. Bill, etc., how signed. All bills and petitions shall be signed by a solicitor of the court, except where a party prosecutes in his own proper person; and then it ALABAMA STATUTES AND RULES 939 shall be signed by such, complainant or petitioner; and where there is a note at the foot of the bill, as directed under the foregoing rules, the same shall be signed in like manner. (Ala. Chancery, Eule 14.) § 743. Bills, how sworn to. In all injunction and other bills and petitions required to be sworn to, the oath or affirmation may be administered and certified by any of the oflScers thereto authorized by law. A bill may be sworn to by an agent or attorney, but the affidavit must set forth a sufficient reason why it is not verified by the complainant himself. (Ala. Chancery, Rule 15.) §744. Exhibits part of bill, and admissions of them dispenses with proof. The copies of all documents appended as exhibits to bills, petitions and answers shall be deemed and taken and held as parts of bills, petitions and answers; and the admission of such exhibits in the answer dispenses with proof thereof. (Ala. Chancery, Rule 16.) §745. Prayer, requisites of. The prayer for process or publication to answer a bill shall contain the names of all the defendants. If an injunction, ne exeat, or any other special order, is asked for in the prayer for relief, that shall be sufficient, without repeating the same in the prayer for process. (Ala. Chancery, Rule 17.) §746. Non-resident or insolvent parties may be dis- pensed with. In all cases where it shall appear to the court that persons, who might otherwise be deemed neces- sary or proper parties to the suit, reside out of the juris- diction of the court, or are insolvent, the court may, in its discretion, proceed in the cause without making such persons parties; and in such cases, the decree shall be without prejudice to the rights of the absent parties. (Ala. Chancery, Rule 18.) § 747. When parties are numerous, court may proceed, having before it parties to represent adverse interests. When the parties on either side are very numerous, and cannot, without manifest inconvenience and oppressive delays in "the suit, be all brought before it, the court, in its discretion, may dispense with the making of all of them parties, and may proceed in the suit, having suffi- Whitehouse E. P. Vol. II — 4 940 EQUITY PRACTICE cient parties before it to represent all tlie adverse inter- ests of the plaintiff and the defendant in the suit. But in such cases the decree shall be without prejudice to the rights and claims of the absent parties. (Ala. Chancery, Eule 19.) § 748. Infants, how served. Summons to answer bills issuing against infants may be served upon their parents, or either of them, if in life, or, in case they are dead, upon the general guardian of such infant; provided, such par- ent or guardian has not an interest adverse to such infant. When there is no parent or guardian, or the interest is adverse to the infant, if the infant is over fourteen years of age, then the service shall be upon such infant per- sonally; and if the infant is under 'the age of fourteen, then the summons must be served upon such person as may have the maintenance or charge of such infant, unless opposed in interest. And should there be any case not provided for by statute, or by this or some other rule, and proof be made before the chancellor or register, he may direct the mode of service, or appoint a guardian ad litem for such infant without service. (Ala. Chancery, Eule 20.) § 749. Corporations — Service on. Domestic corpora- tions may be served with process by executing it upon the president, or other head thereof, secretary, cashier, or managing agent thereof. If affidavit is made that the officers named in the preceding part of this rule are un- known, absent from, or reside out of the state, the process may be served upon any white person in the employ of such corporation, or doing business for it. Process may be served on foreign corporations by executing it upon any agent of such corporation, or white person in its employ in this state, or by publication, a copy of which may be sent to any of the officers named in the first part of this rule. If a summons to answer a bill is personally served on the agent or person in the employ of such for- eign corporation, such agent or employe maj^ be required to answer on oath, as in case of other defendants to bills, and under like penalties. (Ala. Chancery, Eule 21.) 8 750. Service of non-residents. Where a defendant is ALABAMA STATUTES AND RULES 941 shown by affidavit of the complainant or his agent, ap- pended to the bill, or otherwise, to be, in the belief of such affiant, either a non-resident, or that his residence is unknown, or, if a resident, that he has been absent from the state more than six months from the filing of the bill, or that he conceals himself so that process cannot be served upon him; and such affidavit further states the belief of the affiant as to the age of the defendant, being over or under twenty-one years, or, if the residence and age of the defendant are unknown to the person making the affidavit, states that they are unknown, or, if the bill sets forth the facts required to be stated in said affidavits, and is sworn to, it shall be the duty of the register, in vacation, or chancellor, in term time, to make an order against such defendant, requiring him to answer or demur to said bill before a day to be therein named, not less than thirty days, nor more than fifty days from the making thereof. The register shall have all orders of publication against defendants, whether made by the chancellor or himself, published, with as little delay as may be, in such newspaper as may be designated in the order, once a week for four consecutive weeks ; a copy of which order he must post up at the door of the court-house of the county, or other place where the court sits, and shall send by mail another copy thereof to the defendant, where his residence is shown by the bill or affidavit, as aforesaid ; which copies shall be posted up and sent by mail, within twenty days from the making of said order. (Ala. Chancery, Rule 22.) § 751. Appointment of guardian ad litem, and affidavit of infancy. If an infant of fourteen years of age fails to name a guardian ad litem, within thirty days after the summons, or after perfecting publication, the chancellor or register, in vacation, or the chancellor, in term time, shall appoint such guardian, who may be superseded by the infant appearing either before the chancellor or reg- ister, in vacation, or the chancellor, in term time, and making choice of another, or having such choice certi- fied by a justice of the peace to the court, chancellor, or register, and on the guardian ad litem so appointed, if necessary, putting in an answer for such infant forthwith. 942 EQUITY PRACTICE In all cases, a minor fourteen years of age may have Ms or her choice of a guardian ad litem certified by a justice of the peace. No one shall be appointed guardian ad litem, unless he consent in writing to act as such. No testimony shall be required of the infancy of a party suing or being sued as such; but, before a guardian ad litem can be appointed for an infant defendant, and affi- davit must be made as to the fact of infancy, and that the infant is believed to be under or over fourteen years of age ; or, if the facts are stated in a sworn bill, it will be sufficient, without any separate affidavit. (Ala. Chan- cery, Rule 23.) § 752. Attachment against defendant failing to answer. If a resident defendant of full age, as to whom an answer on oath is not waived, fails to answer, and the complainant or his solicitor wishes to enforce one, he may, after the summons .to answer has been served for more than thirty days, apply in writing to the register for the issue of an attachment against the body of such defendant; and the register shall issue the same accordingly, without waiting for any order of the chancellor. (Ala. Chancery, Eule 24.) § 753. Sequestration against defendant evading attach- ment. If a defendant, against whose body an attachment has been issued to enforce an answer, eludes the service thereof, upon affidavit of the fact by the sheriff or his deputy, and by the complainant or his solicitor, of the necessity for an answer to the bill, the register shall issue a writ of sequestration against the estate of such defend- ant, directed to any sheriff of the State of Alabama. (Ala. Chancery, Rule 25.) § 754. Alias and pluries process without order. An alias, pluries, or other summons, attachment, or other writ, can issue without any order therefor. (Ala. Chan- cery, Rule 26.) § 755. Bill dismissed for neglect to bring in defendant. If the complainant shall not, before the second term after the filing of the bill, have taken measures to bring in the defendant, his bill may be dismissed. (Ala. Chancery, Rule 27.) § 756. Dismissal, when equivalent to dismissal on mer- ALABAMA STATUTES AND RULES 943 its. If the complainant, after the cause is set down to be heard, cause the bill to be dismissed on his application, or if the cause is called on to be heard in court, and complain- ant makes default, and by reason thereof the bill is dis- missed, then, and in such dismissal, unless the court other- wise orders, is equivalent to a dismissal on the merits, and may be pleaded in bar to another suit for the same matter. (Ala. Chancery, Eule 28.) §757. Certificate requisite to decree pro confesso. When an application is made to the chancellor, in term time or vacation, for a decree pro confesso against a de- fendant, as to whom publication has been made, the reg- ister, before the decree pro confesso shall be entered, must certify that publication has been made, and therein state when and how, and whether the notice was posted up or forwarded by mail to the defendant, and when ; which cer- tificate shall be prima facie evidence of the facts therein stated. (Ala. Chancery, Eule 29.) §758. Demurrer being overruled, answer filed, or decree pro confesso, or attachment. When a demurrer is overruled, the defendant shall forthwith put in sufficient answer, unless the chancellor gives further time^ and on failure to comply with the order to answer, a decree pro confesso may be entered, or an attachment against the body taken, to be followed, if need be, with a writ of sequestration, where a sworn answer is required. (Ala. Chancery, Eule 30.) §759. Conunission to take non-resident's answer. When a defendant resides out of the state, and an answer on oath is not waived, the register, on application of the solicitor of such defendant, shall issue a commission to one person or more to take and certify his answer. The affidavit to the answer shall be attached thereto, and be sworn to and subscribed by the defendant before such commissioners, or one of them, and be so certified by him or them, and that such defendant is known to such com- missioner. Where an affidavit to a bill or petition of a party residing out of the state is necessary, it may be taken and certified in like manner, or by a commissioner appointed under section 65 of Eevised Code (section 98 944 EQUITY PRACTICE of this Code) . The answer of a foreign corporation, taken according to law, may be certified by commissioners ap- pointed in like manner. (Ala. Chancery, Eule 31.) § 760. Injunction dissolved on answer only when sworn to. Before a motion can be entertained to dissolve an injunction upon the denials in the answer of the equity of the bill, the answer must be sworn to, whether an answer on oath is waived in the bill or not. A similar course must be taken to authorize a motion to discharge a ne exeat on the answer. (Ala. Chancery, Eule 32.) § 761. Defendant failing to answer not in contempt, until his exceptions are decided. A defendant, who has excepted to a bill for scandal or impertinence, shall not be placed in contempt for want of an answer, until a deci- sion on the exceptions. (Ala. Chancery, Eule 33.) § 762. If oath waived, no exception to answer for insuf- ficiency. An answer to which the oath of the defendant is waived cannot be excepted to for insufficiency. (Ala. Chancery, Eule 34.) §763. Proceedings on exceptions to bill or answer. Whenever exceptions are filed to a bill or answer in vaca- tion, the register shall forthwith issue and cause a notice thereof to be served on the opposite party, or his solicitor; and if such party does not submit to the allowance of such exceptions, or fails for the space of five days after service of such notice, to apply to the register to fix a day for hearing said exceptions, the register shall proceed with- out delay to notify both parties of the time when said exceptions will be heard by him, of which five days' notice must be given to the parties; and upon such notice being given, he shall, at the time appointed, proceed to decide on such exceptions, from which decision an appeal may be taken to the chancellor, as in other cases. (Ala. Chancery, Eule 35.) § 764. Proceedings, if exceptions for insufficiency to answer allowed. Should the register decide, on excep- tions to an answer for insufficiency, that the exceptions be allowed, he shall in his order name a day when a further answer must be filed ; and if the defendant fails to answer by that day, or puts in an insufficient answer, the register ALABAMA STATUTES AND RULES 945 must enter a decree pro confesso, or, at the election of the complainant, issue an attachment, to be followed, if need be, by a writ of sequestration, to coerce a sufficient answer. (Ala. Chancery, Eule 36.) §765. If exceptions for scandal or impertinence al- lowed. Should the register allow an exception for scandal or impertinence, he shall draw black lines around such scandalous or impertinent matter, and write across the face thereof with red ink, "expunged"; Provided, that in all cases where a party appeals to the chancellor, all proceedings to obtain a decree pro confesso, or to coerce an answer, or to expunge improper matter, shall be sus- pended until the decision of the chancellor is announced. (Ala. Chancery, Eule 37.) § 766. Exceptions — Time of hearing. When exceptions to a bill or answer are filed so near to a term of the court that the proper notice cannot be given, they shall be heard at as early a day as practicable during the term, on one day's notice; and if the decision of the register is appealed from during term time, no notice of the hearing upon the appeal shall be required. (Ala. Chancery, Rule 38.) §767. Amendments — Mode of making. Amendments of bills and answers shall be made on a separate piece of paper, unless the amendment be of a brief character, when it may be made by an interlineation or erasure, with ink of a different color from the body of the bill or answer; and the amendment shall be made in such a manner that it may be ascertained in what it consists. (Ala. Chancery, Rule 39.) § 768. Amendments to bill and answer — Notice. When amendments are proposed under sections 3126 or 3127 of the Code, the opposite party shall be served with a copy of the proposed amendment, with notice of the time when the application will be made. When the applica- tion will be before the register, under section 3127 of the Code, the notice shall be five days before the hearing of the application, unless waived ; when to the chancellor in vacation, either under that section, or under section 3126 of Code, ten days ' notice shall be given before the hearing of the application, unless waived; btit when the applica- 946 EQUITY PRACTICE tion is made in term time, one day's notice shall be suf- ficient ; and when the motion to amend is made at the hear- ing in term time, no notice shall be necessary, but the chancellor may postpone the hearing of the motion, as justice may require. Where a defendant is in default for want of an answer, the notice will be sufficient if entered on the order-book of the register, as directed by section 3133 of the Code, for the number of days required by this rule. (Ala. Chancery, Eule 40.) § 769. Amendments after demurrer and argument thereof. Amendments to bills may be made after -the demurrer and argument thereof, in the same manner as is provided for amendments after answer. (Ala. Chan- cery, Eule 41.) § 770. After answer, order to amend bill generally not allowed. In all cases where the original bill has been answered, no order can be obtained to amend the bill gen- erally, but the amendments must be prepared and pro- posed as above directed. (Ala. Chancery, Eule 42.) §771. Amendments of bills considered as introduced from allowance. When an amendment to a bill is allowed, it shall be considered as introduced into the bill from the time of its allowance. (Ala. Chancery, Eule 43.) §772. Notice of the allowance of amendments, how given. Notice of the allowance of amendments to bills shall be given in the following manner — that is to say : 1. Where the defendants who have answered are actu- ally present in court, either in person or by their solicitors or guardians ad litem, at the allowance of the amendment, they shall be deemed to have notice thereof. 2. After the allowance of an amendment to the bill the complainant shall cause a notice that his bill has been amended to be served upon all defendants who shall have been served with summons to answer the original bill, and who were not in court, either in person or by solicitor, or guardian ad litem, at the allowance thereof ; unless the defendant is a non-resident, in which event the court shall direct in what manner he shall be notified. 3. All parties who, at the allowance of an amendment, shall be in default, shall be deemed to have notice thereof, ALABAMA STATUTES AND RULES 947 after a notice that the bill has been amended shall have been entered on the order-book for such time as the chancellor or register may direct. (Ala. Chancery, Rule 44.) §773. Supplemental matter introduced by way of amendment. New facts occuring since the filing of a bill may be introduced by way of amendment, without a sup- plemental bill. (Ala. Chancery, Eule 45.) § 774. Decree pro conf esso not set aside by amendment, and effect of decree pro confesso on amendment. An amendment to a bill, or the filing of an amended bill, shall not set aside a decree pro confesso as to any defendant to the original or any other bill ; nor shall a decree pro con- fesso for want of an answer to an amendment or an amended bill operate as a decree pro confesso on the original or any other amended bill already answered. (Ala. Chancery, Eule 46.) § 775. Submission of cause; time of filing amendment when dismissed in vacation. When a cause is submitted in term time, or in vacation, on the pleadings and evidence for a final decree in vacation, and the bill is dismissed in vacation on account of defects in the pleadings, or a vari- ance between the proof and the allegations of the bill, if the complainant desire to amend the pleadings, he must apply to the chancellor for leave to amend on or before the second day of the next ensuing term of the said chan- cery court. (Ala. Chancery, Eule 47.) § 776. Decree pro confesso after thirty days. A decree pro confesso may be entered upon amendments, against each defendant who fails to answer the same within thirty days after notice thereof, as above provided, unless the matter of the amendment has been denied in some previ- ous answer of such defendant. When the justice of the case requires it, the chancellor or register allowing the amendment may enlarge the time for answer. (Ala. Chancery, Eule 48.) Testimony § 777. Testimony taken after cause is at issue. Testi- mony cannot be taken by either party until the cause is at 948 EQUITY PRACTICE issue by sufficient answer, or decree pro confesso, as to all the defendants. (Ala. Chancery, Rule 49.) § 778. Interrogatories filed and copies served. When a cause is at issue, as laid down in the last rule, either party desiring to take testimony, must file his interroga- tories in the office of the register, a copy of which must be served upon the opposite party, as directed in sections 3147 and 3148 of this Code. (Ala. Chancery, Eule 50.) § 779. Party desiring' to be present gives notice. When a party desires to be present at the examination of a witness against him, he shall give notice to the adverse party, by filing a notice with his cross-interrogatories; whereupon, it shall be the duty of the register to prescribe the notice which he shall receive of the time and place of the execution of the commission. (Ala. Chancery, Eule 51.) § 780. Re-examination. A party against whom a wit- ness has been examined, may re-examine such witness, provided he did not file cross-interrogatories upon the first examination. The examination, under this rule, shall operate as a cross-examination of such witness. Both parties shall have the liberty of being present at such re-examination, but the party wishing to re-exam- ine such witness shall give such notice to the opposite party of the time and place of such re-examination as the register shall prescribe. (Ala. Chancery, Eule 52.) § 781. — By parties filing cross-interrogatories. When a party who has filed cross-interrogatories afterwards learns that the witness has a knowledge of facts which he did not know at the time of filing his cross-interroga- tories, it shall be the duty of the register, on affidavit made, setting forth such facts, to order a re-examination, as in the preceding rule. (Ala. Chancery, Eule 53.) § 782. Examinations de bene esse. When a bill is filed, and, either before or after the same is at issue as to all the defendants, upon affidavit made that any witness of the complainant is over sixty years of age, or so infirm that affiant fears that injury will result from delay owing to such infirmity, or that he is about to remove perma- nently from the state, or that he is a single witness to a ALABAMA STATUTES AND RULES 949 material fact, the chancellor or register, in vacation, or the chancellor, in term time, shall make an order to take the testimony of such witness de bene esse. Such order ^may be made for the examination of such witness or wit- nesses upon interrogatories, after three days' service of a copy of the same upon the opposite party or his solicitor, and upon cross-interrogatories, which may be submitted at any time before the examination. Or the court, chan- cellor, or register, may fix the time and place of the ex- amination of such witness or witnesses, and the notice of the same to be given to the opposite party, and such ex- amination may be upon interrogatories propounded orally or in writing. In either case, the register may take such examination, or may issue a commission to one or more suitable persons to take the same. (Ala. Chancery, Eule 54.) § 783. — Further examination. After the examination of a witness de bene esse, the party shall not be required to make further examination, but may use testimony so taken on the hearing; the opposite party, however, shall have the right to retake the testimony of such witness. A defendant, who has answered the bill when the cause is not at issue as to other defendants, may in like man- ner, and for like causes, examine any of his witnesses de bene esse. (Ala. Chancery, Eule 55.) § 784. Testimony in interpleader. The complainant in a bill of interpleader, intending to take testimony, must give notice and serve interrogatories upon the parties required to interplead; and if either of the defendants desires to take testimony, he must serve interrogatories as well upon the complainant as upon the adverse defend- ant; but after a decree of interpleader, it shall not be necessary for either defendant taking testimony to sen^e the complainant with interrogatories or notice. (Ala. Chancery, Eule 56. ) § 785. Mode of impeaching testimony. The testimony of witnesses may be impeached by deposition, taken ac- cording to the Code and the foregoing rules, and no ar- ticles of impeachment shall, in any case, be filed. (Ala. Chancery, Eule 57.) 950 EQUITY PRACTICE § 786. Notice accompanies interrogatories — Objection to commissioner. A notice shall accompany interroga- tories to take the deposition of a witness, giving the names of the commissioner or commissioners. If the op-' posite party has any objection to such commissioner or commissioners, he shall file his objections within the time prescribed for filing exceptions to interrogatories; and the same shall be heard by the register and decided, and the decision reviewed, as in case of interrogatories. If the register overrules the objection, the commission shall issue to the person or persons proposed; if he allows the same, he shall appoint some other person or persons, free from objection, to execute the commission. (Ala. Chan- cery, Eule 58.) §787. Chancellors appoint examiners — Qualification and duty. The several chancellors in this state shall, within their respective divisions, have power to appoint one or more examiners in each county, to take and certify the depositions of witnesses, who shall be officers of the chancery court, and sworn faithfully to discharge the duties of their office; and if, upon filing interrogatories, no commissioner shall be named by the complainant or his solicitor, nor any other person than the examiner suggested by the defendant or his solicitor, the deposition shall be taken by such examiner, without any commission from the register; but either party may, by writing in- dorsed on thfe interrogatories or cross-interrogatories, re- quire the examiner to give him notice of the time and place of taking the testimony. Such examiners shall have the like power to compel the attendance of witnesses, and shall be entitled to the same fees as are allowed to commissioners by the existing laws. (Ala. Chancery, Rule 59.) § 788. Names and residences of witnesses given. Here- after, when a party files interrogatories to examine a wit- ness or witnesses, he shall give the name or names of the witnesses, and place or places of their residence, or make affidavit that the same is unknown; and, on failure to do so, no commission shall issue, nor proceedings be had on ALABAMA STATUTES AND RULES 951 said interrogatories, except by consent of the opposite party, or his solicitor. (Ala. Chancery, Eule 60.) §789. No interrogatories or notice to party in con- tempt — ^Waiver of notice. A defendant, against whom a decree pro confesso shall be in force, shall not be served with a copy of the interrogatories, or any notice of the taking of the testimony; nor shall it be necessary in such case that the interrogatories shall be filed in the register's office any number of days before a commission issues. In all cases the parties can waive the ten days' service of interrogatories, and a consent in writing to the issue of a commission shall be deemed a waiver. (Ala. Chancery, Eule 61.) § 790. Inclosure and direction of depositions — Publica- tion — After publication testimony not taken without con- sent or order. Deposition shall be sealed up with the commission by the commissioner, with the title of the case and the names of the witnesses indorsed on the envelope; and the package shall be directed to the regis- ter at the proper place. Publication of the testimony must be passed by the court, or before the chancellor or register, or it may be done, by consent of parties, in writ- ing entered on the back of the deposition or depositions, or otherwise. After publication passed, no testimony shall be taken except by consent, or by special application to the chancellor and allowance by him. (Ala. Chancery, Rule 62.) §791. Register's duty on publication of testimony. When testimony is published, the register shall withdraw the same from the envelopes; and indorse the title of the cause with the names of the witnesses, and by which party examined, upon the back of the depositions, and that the same was published by order of the court, chan- cellor, or register, or by consent of parties, and then file the same with the papers of the cause. (Ala. Chancery, Eule 63.) § 792. Proof of exhibits and documents. No order shall be necessary to prove exhibits viva voce; but where there is not a decree pro confesso, or the proof of exhibits, or notice waived, the opposite solicitor must be served with 952 EQUITY PRACTICE one day's notice before the hearing that such exhibits will be proved at the hearing. Other documentary testi- mony may be proved on like notice. The court can put off the hearing to give time to prove or rebut documentary testimony. (Ala. Chancery, Rule 64.) § 793. Rules for taking the oral examination of wit- nesses in chancery cases. 1. Every notice required to be given under the following rules must be given in writing by the party desiring it to the adverse party, or to his solicitor of record, if either resides in the chancery dis- trict; but if neither resides therein, the notice may be given by an entry on the order-book of the register. 2. Any party to a cause who may require the examina- tion of any witness to be taken orally, shall file such re- quest with the register, and give notice thereof to the adverse party at least three days before the examination is taken. 3. In case interrogatories in writing to a witness are filed, and any party to the cause shall require the exam- ination of such witness to be taken orally, he shall give the other parties to the cause, or their solicitors, notice of such requirement within five days after notice of the filing of such interrogatories, or on failure to give such notice shall be held to have waived the right to any oral examination. 4. Notice shall be given by the solicitor of the party calling the witness to the opposing party or parties of the time and place of the examination, for such reasonable time as the register or examiner or special commissioner may fix by order in each case. 5. The examination of witnesses shall take place in the presence of the parties or their agents by their solici- tors, and the witnesses shall be subject to cross-examina- tion and re-examination, which shall be conducted, as near as may be, in the mode in use in the common-law courts; but in case either party or his solicitor shall fail to attend at the time and place of such examination after notice, the officer taking such examination may proceed therewith in his or their absence. 6. The depositions taken upon oral examinations shall ALABAMA STATUTES AND KULES 953 be taken down in writing by the examiner in the form of a narrative, unless some question is raised on the legality or pertinency of the interrogatory, or on the legality or sufficiency of the answer. Questions arising under this exception must be noted and fully set forth by the exam- iner, if requested by either party. When completed, the deposition shall be read over to the witness, and shall be signed by him in the presence of the parties or counsel, or such of them as may attend ; Provided, that if the wit- ness shall refuse to sign the same, then the officer taking such deposition shall state that fact in his certificate. 7. The officer taking such examination may state to the court therein any special matters he may think fit; and any question or questions which may be objected to shall be noted upon the deposition, as stated in rule 6, by the officer taking the examination, but he shall not have power to decide on the competency, materiality or rele- vancy of the questions or answers; and the chancellor shall have power to deal with the costs of incompetent, immaterial, or irrelevant depositions, or parts of them, as may place the costs unnecessarily incurred on the of- fending party. 8. The officer taking such examination may adjourn the same from time to time, but no adjournment for any longer time than two days shall be made except upon the consent of the parties, or on pressing necessity, which consent or necessity shall be noted in the deposition by the officer taking the same. 9. The deposition when taken shall be transmitted to the register in the same manner as is now provided for the transmission of depositions taken on interrogatories. 10. The word ' ' party, ' ' in the foregoing rules, shall be construed to mean, not only all the complainants, or all the defendants, but any individual, material party, whether complainant or defendant. 11. Adverse party, to whom notice is required to be given under these rules, embraces not only those on the adverse side, as shown by the docket, but those on the same side of the mover, if representing an interest adverse 954 EQUITY PRACTICE to him, and if the testimony propounded to be taken af- fects that interest. (Ala. Chancery, Eule 65.) Dockets, Special Teems, Hearings, Deceees, and Appeals § 794. Docket — What it must contain — Filed with pa- pers. The register of each court shall prepare a docket, for each term, of all the causes not finally disposed of at the previous term, and of the suits since commenced, in which shall be entered the name of each complainant and defendant. This docket must be laid off with appropriate columns ; one with names of the solicitors and the number of the cause; one with the names of the parties; in another must be entered the time when each pleading was filed, and, opposite to the names of the respective defendants, the state of the cause as to such defendants, as thus: "An- swer filed," "answer filed by guardian ad litem," "de- cree pro confesso on publication," as the case may be; and where the cause is not at issue as to any defendant, a vacant space must be left opposite the name of such de- fendant. In another column must be entered, in regular order as to time, a short note of the several orders and decrees made in the cause by the court, chancellor, or register, in one place, and those by the register in an- other; with the note of the orders made by the register shall be noted the date of the issue and return of all sum- mons and other process, orders and rules. This docket will contain one other distinct column, left blank for the entries of the chancellor during the term. The register will file in the papers of each cause on the docket an exact copy of the docket of said cause, and all entries thereon, for the use of the chancellor, which paper is part of the record. The causes will be placed on the docket in the order in which the original bills are filed ; and the number placed on the bill when filed must not be changed, and all the papers of the cause must be so numbered. (Ala. Chancery, Rule 66.) §795. Caption of minutes — Form of. The caption of the minutes of a regular term of the court of chancery must be in the following form, to wit: "At a court of chancery, held for the district, ALABAMA STATUTES AND KULBS 955 composed of the county of , in the State of Alabama, at the court-house thereof, in the town of , on the Monday of , being the day of said month, in the year of our Lord one thousand eight hundred and ; present, the Honorable , chancellor of the — — chancery division of said state" (as the case may be). Where the court is held at a different place than the county-site, or there are more counties in the district than one, the proper changes will be made, (Ala. Chancery, Eule 67.) § 796. Special or extra terms — Proceedings in reference to. When a special or extra term of a court of chancery is ordered by a chancellor, he will transmit the order therefor to the register, who must enter the same on the minute-book of the court immediately after the minutes of the previous term, file the order in his office, and have the same published as directed by the chancellor, and certify to such chancellor, who is to hold said extra term, that publication has been made in pursuance of said order. When a special or extra term is held, the caption of the minutes of the courts shaU be so varied as to show the time when the order therefor was made, and the length of time it was published, certified as above. (Ala. Chan- cery, Eule 68.) § 797. Keaxing — Failure of parties to appear — Setting aside default. When a cause is called for hearing, if the complainant does not appear, it shall be dismissed; if he appears, and the defendant does not, it shall be heard and decree rendered according to the claim and proof. Either party, on timely application, may set aside his default, on such terms as the court may impose. (Ala. Chancery, Rule 69.) §798. Continuance. Application for continuance for want of testimony must be in writing, and conform to the rule in regard to the continuance of trials in the courts of law. (Ala. Chancery, Eule 70.) § 799. No continuance without disposition of the ques- tion of equity. No application for a continuance for want of testimony must be considered, unless the equity of the bill is admitted, until the question of equity is disposed Whitehouse E. P. Vol. II— 5 956 EQUITY PRACTICE of, by way of motion to dismiss for want of equity, or, if there is a demurrer to the bill, by decision on the demur- rer. (Ala. Chancery, Rule 71.) § 800. Demurrers and pleas — When filed. All demur- rers, whether contained in the answer or not, are to be disposed of on the calling of the cause, without waiting for the cause to be ready on the proof; but when the cause is ready for hearing on the pleadings and proofs, it must be heard, without waiting for a separate decision on a demurrer contained in the answer. This rule must also apply where a plea is interposed, the truth of which is admitted. (Ala. Chancery, Rule 72.) § 801. Exceptions and demurrer — ^When heard. All ex- ceptions to bills, answers, reports, or testimony, whether coming before the court in the first place for considera- tion, or by way of appeal or review, must be heard in connection with the equity of the bill, unless that question has been previously decided or admitted ; also, if there is a demurrer undisposed of in the case, it must be consid- ered by the court at the same time with the exceptions. (Ala. Chancery, Rule 73.) § 802. Pleas, demurrers, or motions to dismiss for want of equity, may be heard in vacation. When a plea or a demurrer is interposed to a bill, either party may set the same down for hearing in vacation, whether it is filed without answer, or incorporated in the answer; the hear- ing to be had on ten days' notice to the adverse party of the time and place, and the same shall be decided by the chancellor as if the hearing was had in term time. Any material defendant may, on ten days' notice to the com- plainant or his solicitor of record, before answer, and before the first term after the filing of a bill, move to dis- miss the bill for want of equity, and such motion shall be heard and determined by the chancellor as if made in term time. Decrees of the chancellor rendered under this rule shall be filed with the register, and by him enrolled as if made in term time. The hearings to be had on copy of bill, and of plea or demurrer, certified by the register and furnished by the party applying for the hearing. (Ala, Chancery, Rule 74.) ALABAMA STATUTES AND KULES 957 §804. Proceedings on hearing. On the hearing of a cause, the court can dispense with the reading • of the pleadings and proofs; and in that case, the complainant's counsel must state the case made by the bill, and the defendant's counsel the defense made by answer. The complainant's counsel must then offer his testimony in chief, naming the witnesses and other testimony, of which the register must take a note ; and then that of the defend- ant must be offered, and noted by the register; to which the complainant, in like manner, must offer his rebutting testimony. Any testimony not offered in this way, and noted by the register on the minutes, must not be consid- ered as any part of the record, nor be considered by the chancellor. Counsel on either side, in the course of their arguments, can read any portion of the pleadings or proofs. A hearing on bill and answer, motion, demurrer, exceptions, or appeal, shall conform, as far as applicable, to this rule. (Ala. Chancery, Eule 75.) § 805. Memorandum of testimony entered and copy filed. The register shall enter on the minutes of the court a memorandum of the testimony offered by each party on the hearing of a cause, a copy of which shall be filed with the papers for the use of the chancellor. (Ala. Chancery, Eule 76.) § 806. Submission at call for motions. At the call for motions, each morning, any cause can be submitted for decree without argument, unless objection is made; and when a cause is submitted for decree without argument, the testimony must be offered and noted, as directed in the two foregoing rules. (Ala. Chancery, Eule 77.) § 807. Decrees in vacation — Proceedings and process on. When a cause is submitted during term time for a decree or order, such decree shall be valid if rendered during any vacation. When any decree or order is made by a chancellor in vacation, it shall be the duty of the register, as soon as the same is filed in his office, to enter the same at length on the minute-book of the court immediately after the minutes of the previous term, and the same shall be considered as enrolled from and after such entry, which shall be dated; but if said decree be other than for 958 EQUITY PRACTICE tlie payment of money, no process for its execution shall issue thereon until the next ensuing term of the court, unless the complainant, or his solicitor, shall have given to the defendant, or his solicitor, ten days ' notice in writ- ing of his or their intention to have the execution of the decree, which notice shall be served by the sheriff, and filed with the register, as a paper in said decree. When the decree is rendered in vacation, either party may ap- ply for a rehearing by the second day of the next ensuing term of said court. (Ala. Chancery, Eule 78.) § 808. Consents to orders and decrees entered into in vacation. Consents entered into in vacation, that chan- cellors shall make orders and render interlocutory or final decrees in vacation, shall be in writing, signed by the parties, or their counsel, and filed in the cause in which made; when made for an infant party to the cause, such consent shall be signed by the guardian ad litem of such infant, or by such other party as may be the duly author- ized representative of such infant in the case, or by the counsel of such guardian ad litem or other representative. (Ala. Chancery, Eule 79.) § 809. Decrees in term time — Chancellor's reasons, transcript. All decrees and orders made by the court in term time, with the exception of their captions, shall be entered at length on the minutes of the court. The chan- cellor's reasons, however, for such decree or order shall not be entered. If an appeal should be taken, the register shall not include in the transcript both the original order of decree on file, and the entry on the minutes; nor shall they both be included in the final record. (Ala. Chan- cery, Eule 80.) § 810. Rehearing'. A party desiring a rehearing of a decree must apply to the chancellor at chambers, by peti- tion, during the term in which the decree is rendered. The petition need not state any of the proceedings ante- rior to the decree sought to be reheard, but must state the special matter or cause on which the rehearing is applied for, and the principal points in which the decree is alleged to be erroneous; and the facts, if they do not appear from the records of the court, must be verified by ALABAMA STATUTES AND RULES 959 tlie affidavit of tlie party, or some other person. The petition must be confined to the case made by the record. On this petition the chancellor must determine, without argument, whether the cause ought to be reheard; and, if he concludes to grant a rehearing, order accordingly, but if he declines to do so, no order must be made on said petition. (Ala. Chancery, Rule 81.) § 811. Orders, and opening of them. An order of ref- erence, or to take and state an account, or make inquiry by the register, or any other order preparatory of a cause, whether made by the chancellor or register in vacation, or by the court, may, at any subsequent time before final decree, be opened, varied, or discharged, on motion of either party, or the court may, without motion, revoke any order previously made. (Ala. Chancery, Eule 82.) § 812. Questioning final decree after adjournment. A final decree shall not be called in question, before the court rendering it, after the adjournment of the term when rendered, except by bill of review, and shall never be impeached by original bill, unless on the ground of fraud. (Ala. Chancery, Rule 83.) § 813. Transcript on appeal. When an appeal is taken from a decision of the chancellor on any matter decided by him, the transcript sent to the supreme court must contain, as well a copy of the opinion filed by the chan- cellor, if any, as of the decree or order appealed from. (Ala. Chancery, Eule 84.) § 814. Appeal — In whose name taken. Any complain- ant or defendant, in a cause in which a decree or order final may have been rendered,, may appeal to the supreme court in the name of himself and all the other complain- ants or defendants to the decree. (Ala. Chancery, Eule 85.) § 815. Appeal bond for restoration of injunction — Ne exeat or writ of seizure. If the chancellor, upon or after making any final or interlocutory decree which has the effect of dissolving or discharging an injunction, or dis- charging a ne exeat, or attachment should be reinstated pending an appeal from such decree, he shall prescribe the penalty and condition of the bond to be given by the 960 EQUITY PRACTICE party aggrieved, should he thereafter appeal from such decree; and if the chancellor on rendering the decree omits to prescribe it, the same shall be prescribed by a judge of the supreme court, if the court is not in session, or by the court when in session, if such judge or court be of the opinion that the writ dissolved or discharged should be allowed to be reinstated pending appeal, upon application presenting the case and showing that the same has not been denied by the supreme court or by a judge thereof; and the appeal in such cases, taken before the register, and the bond executed as prescribed by the chancellor or judge of the supreme court, or the supreme court, as the case may be, and approved by the register, shall operate to restore the injunction, ne exeat, or writ of seizure in the nature of an attachment until the same shall be reviewed in the supreme court. (Ala. Chancery, Eule 86.) Proceedings Before the Rbgistee as Master §816. Sessions of register, place of. The sessions of the register, as master in chancery, shall be held at his office, unless the chancellor or court otherwise directs, or he himself appoints a different place by consent of par- ties. (Ala. Chancery, Eule 87.) § 817. Testimony, how taken. Testimony offered be- fore the register must be noted by him, and nothing not so offered shall be considered. Oral testimony taken before him shall be reduced to writing, paged severally, and the name of the witness and the subject of the testi- mony noted in the margin. Such testimony shall be prop- erly attached, and is part of the file. Exceptions to rul- ings of the register on testimony, admitted or rejected by him, must be noted by him; and if not so taken, the ex- ception is waived. (Ala. Chancery, Eule 88.) § 818. Accounts before register, form of. All ac- counts taken by the register shall be in the form of debtor and creditor, and the vouchers must be so numbered as to correspond with the numbers on the account. A refer- ence, however, to ascertain the amount due from one party to another, where a statement of an account is not ALABAMA STATUTES AND BULBS 961 necessary, need not be in this form. (Ala. Chancery, Eule89.) §819. Accounting before register. All parties account- ing before a register shall bring in their respective ac- counts in the form of debtor and creditor, verified by affi- davit ; and any of the other parties, who shall not be satis- fied with the accounts so brought in, shall be at liberty to examine the accounting party, viva voce or upon in- terrogatories, in the register's office, or by deposition, as the register shall direct. (Ala. Chancery, Eule 90.) § 820. Notice of taking account. The register shall not be required to give notice of the taking of an account to any defendant who has failed to answer the bill. Where a reference is executed during term time, one day's notice must be given to the parties entitled, unless waived, and, when executed in vacation, at least five days. (Ala. Chan- cery, Eule 91.) § 821. Objections to report, exceptions heard by chan- cellor. No notice to the parties to bring in objections to the draft of a report shall be necessary, nor can any ex- ceptions be taken before the register to such draft; nor shall any exceptions to a report be referred to the regis- ter, but the same shall be heard and decided, in the first instance, by the chancellor or court. (Ala, Chancery, Eule 92.) § 822. Exceptions, how taken. In filing exceptions to the report of the register, or any part thereof, it shall be the duty of the solicitor filing the same to note at the foot of each exception to conclusion of facts, drawn by the register, the evidence, or parts of evidence he relies on in support of the exceptions, with such designation and marks of reference as to direct the attention of the court to the same; and if the opposing solicitor desires to do so, he can note in writing such other parts of the evidence as he may deem material to the inquiry. In considering such exceptions, the chancellor need not ex- amine testimony not thus noted. To enable the opposing solicitor to file such additional note under this rule, he shall be allowed one day after the exceptions are filed, within which to do the same, if he state his belief that 962 EQUITY PRACTICE the testimony referred to by tlie party excepting does not fairly and fully present the question for decision. (Ala. Chancery, Eule 93.) § 823. Report, confirmation of — Exceptions to, Ee- ports of the register, read in open court on one day, may be confirmed the next, unless excepted to ; and when that is the case, exceptions can be heard and determined with- out further postponement. The chancellor may extend the time for excepting to reports, and for hearing excep- tions, to such day or days as he may deem proper; but a defendant against whom a decree pro confesso has been entered, and who has not appeared before the register on the reference, shall not be allowed to except to the report, but, as to such defendant, the report shall be con- firmed when read. Any defendant who failed to appear before the register on the reference, or is otherwise in contempt, or who has not submitted to the jurisdiction of the court, shall not be allowed to except to the report of the register, but, as to such defendant, the same shall be confirmed when read. A defendant against whom a decree pro confesso is in force, and who appeared before the register on a reference, may except to the report; and any defendant in contempt for want of an answer may except to the report of the register as to the suffi- ciency of an answer proposed to be filed by him. (Ala. Chancery, Rule 94.) Petitions and Motions § 824. Motions every morning. Each morning of the term, after the first day, before the regular calls of the docket shall be commenced, motions shall be called for, when any motion or petition, not affecting the merits of a cause in court, but preparatory of the same for hear- ing, or in regard to other matters necessary to be brought before the court, can be submitted; and, at the calling of a cause, any incidental motion can be submitted. (Ala. Chancery, Eule 95.) § 825. Motions to dissolve injunctions — Hearing of. Motions to dissolve injunctions, when made in term time, may be submitted during the call for motions, on one ALABAMA STATUTES AND EULES 963 day's notice, or at tlie regular call of the docket; but if the cause is then ready for hearing on the merits, the court must proceed with the hearing, without taking up the motion separately. When there is a demurrer for want of equity or other cause, and the motion to dissolve the injunction is made in term time, the demurrer must be heard in connection with the motion; but if there is no demurrer, the equity of the bill must, nevertheless, be considered by the court, and if it wants equity, it must be dismissed; but no motion shall be made to dissolve an injunction on the denials of the answer, unless the answer has been filed at least twenty-four hours. When a motion is made to dissolve an injunction, and exceptions to the answer have been filed and remain undecided, they shall be decided by the chancellor in connection with the motion, without being in the first instance passed on by the register. (Ala. Chancery, Rule 96.) § 826. Notice of motions. All special motions and peti- tions, which are not, by the practice of the court, consid- ered ex parte, must be made and heard upon one day's notice in writing, unless notice is waived. (Ala. Chan- cery, Eule 97.) Injunctions; Revivor; Supplemental Bills § 827. Where exceptions to answer overruled, chancel- lor may dissolve injunction. Where exceptions have been filed to an answer for insufficiency, and decided by the chancellor to be not well taken, it shall be in his discre- tion to dissolve the injunction without motion or further argument. (Ala. Chancery, Rule 98.) § 828. Defendant not brought in before second term, injunction dissolved. When a complainant in an injunc- tion bill takes no steps to bring in a defendant before the second term after an injunction has been obtained, the same shall be dissolved of course. (Ala. Chancery, Rule 99.) §829. Applications to reinstate injunctions — Appeals. All applications to reinstate injunctions must be made, in the first instance, to the chancellor who pronounced the order of dissolution, and, when made in vacation, 964 EQUITY PRACTICE must be on petition, setting forth the grounds of the ap- plication; the facts of which petition must be verified by affidavit. A copy of this petition must be served, with a notice of the time and place of the application, on the defendant or his solicitor, at least ten days before the hearing of such application, unless the chancellor, for sufficient reasons, set forth in the petition, dispenses with notice to the opposite party, and then it can be heard ex parte on presentation. If the application is refused, the complainant can appeal to a judge of the supreme court, if that court is not in session ; but, should it be in session, the appeal must be to that court, and not to a judge thereof. (Ala. Chancery, Rule 100.) § 831. Revivor upon death, marriage, or expiration of office. Upon the death of a plaintiff, no bill of revivor shall be necessary to revive the suit, unless so directed by the chancellor; but his personal representatives or heirs, or both, as the case may require, shall be made par- ties, on motion ex parte, before the register in vacation, or the chancellor in term time. So, upon the death of a defendant, instead of proceeding by bill to revive against his personal representative or heirs, upon a verbal sug- gestion to the register or chancellor, an ex parte order shall be made for a summons to issue to his personal representatives or heirs, or both, if required, to appear at a day named, and defend in the place of the deceased ; and, when such summons is served, the suit shall be considered as revived at the expiration of thirty days after service thereof, and be thereafter prosecuted against the new parties without any order of revivor. When the complainant or defendant is an executor or administrator, and his term of office expires by death, resignation, or otherwise, a similar course may be taken to make the administrator de bonis non, or other repre- sentative, of the original party in interest, a party to the suit. A legal representative or heir may come in voluntarily and make himself a party. When a plaintiff proceeds by suggestion to bring in a representative or heir, and makes affidavit as required by the twenty-fifth rule of chancery practice, publication can be made against ALABAMA STATUTES AND EULES 965 such absent heir or representative as required by said rule; and when the time therein specified expires, and such absent heir or representative fails to make himself a party, the chancellor or register shall make an order declaring such person to be a party in lieu of the deceased party; and the cause shall proceed against such absent party, and, if necessary, a decree pro confesso be entered against him; or, if the defendant is a minor, a guardian ad litem be appointed for him. This rule is not intended to prevent the parties from proceeding by bill of revivor, as directed by the three following rules, or according to the English practice, if they so elect; nor to prevent the chancellor from directing the cause to be revived by bill, whenever he deems such course proper. (Ala. Chancery, EulelOl.) § 832. Supplemental bills and bills of revivor — Recitals and contents of. In filing supplemental bills, bills of re- vivor and supplement, it shall not be necessary to recite any part of the original bill, nor any part of the subse- quent proceedings; but in supplemental bills it shall be sufficient to refer to the original bill, and state the new matter; and in bills of revivor, the cause requiring the revivor, with the appropriate prayer. (Ala. Chancery, Rule 102.) § 833. Proceedings and practice in relation to. Sum- mons on supplemental bills, bills of revivor and supple- ment shall be returnable to a day certain, not less than thirty days from the time of its issue; and, on its being executed thirty days, the chancellor or register, in vaca- tion, or the chancellor, in term time, may, if the supple- mental matter be not answered, order the same to be taken pro confesso, subject to be set aside on filing suffi- cient answer, or, if it be a bill of revivor, order the suit to stand revived, or, if the bill calls for an answer to the original bill, decree that the same be taken pro confesso, or direct proceedings to enforce an answer, by attach- ment or sequestration, as directed in the foregoing rules, either as to the original or supplemental matter. No summons, however; to revive or to answer the original or supplemental matter, under this rule, shall be returnable 966 EQUITY PRACTICE to a day beyond the first day of the next term; but if thirty days do not intervene between the filing of the bill and the next term, the summons shall issue returnable to that term ; and if executed five days before its commence- ment, the decree pro confesso, or order to revive, or to enforce an answer, shall be then made, unless good cause be shown to the contrary. (Ala. Chancery, Eule 103.) §834. Publication, order of. Orders of publication against defendants who cannot be served shall be made on supplemental bills, bills of revivor, or bills of revivor and supplement, as upon original bills ; and after the ex- piration of the time required to answer or show cause, supplemental matter may be taken pro confesso, or the suit revived, as to such defendant. Where the original bill has not been answered, service can be perfected under an order of publication on the supplemental bill, or bill of revivor, and an answer required, followed by a decree pro confesso. (Ala. Chancery, Eule 104.) § 835. Costs in cases of abatement. Suits or decrees may be revived for costs ; and whenever any suit in chan- cery is allowed to abate, in consequence of the death of any one or more of the parties, complainants or defend- ants, the court of chancery shall decree against the par- ties then alive such costs to be taxed by the register, as accrued at the instance of such living parties, and shall award a summons to the legal representative of such party as may be dead, to show cause why the costs which had accrued against such deceased party shall not be decreed against such representative, to be levied on the estate of said decedent in his hands to be administered; and upon service of said summons, or return of two suc- cessive writs of summons "not found," and no sufficient cause being shown, the court shall decree accordingly; but no decree can be rendered under this rule against the representative until eighteen months after the grant of letters, and if the estate be reported insolvent, the decree shall be certified as judgments at law against such estate. (Ala. Chancery, Eule 105.) ALABAMA STATUTES AND RULES 967 MoETGAGE Suits § 836. Allegation as to subsequent incumbrancers — De- cree as to sale and proceeds. In mortgage suits, it shall be sufficient to bring in subsequent incumbrancers to state that they claim some interest in the subject of the bill, and pray for a summons to them to answer; and the court shall have power to decree a sale, and direct the proceeds to be brought into court, without adjusting the priorities between such parties, unless there be some equity shown which makes it necessary; and any person, whether a party to the suit or otherwise, shall have the liberty to present his claim, by petition to the court, for the proceeds of the sale before distribution. (Ala. Chan- cery, Eule 106.) § 837. Proceedings when subsequent incumbrancers discovered before confirmation of sale. If it shall be dis- covered that there are subsequent incumbrancers, or par- ties in interest not parties to the cause, at any time before confirmation of the sale in any mortgage suit, the com- plainant or purchaser shall have liberty to bring them before the court at that stage of the proceedings; and if they make no opposition by answer, their interest may be foreclosed without a resale of the property. (Ala. Chan- cery, Eule 107.) Costs § 838. Costs, decree as to. Upon the decision of any interlocutory motion or question, the court or chancellor may impose such portion of the costs of the suit upon either party as to the chancellor may seem proper. (Ala. Chancery, Eule 108.) § 839. Proceedings, if execution for costs returned "no property. ' ' Whenever an execution out of chancery for costs shall be returned "no property," in whole or in part, the register may issue a summons to the party who was not decreed to pay costs, to show cause why he should not be decreed to pay such portion of the costs as were in- curred at the instance of such party; and on the return of said summons "executed," or two consecutive sum- 968 EQUITY PRACTICE monses "not foimd," and such party not showing suffi- cient cause to the contrary, the court may decree that the party pay such portion of the costs as were incurred at his instance, or the court may decree any part of the costs which accrued at the instance of such party to be paid by him. (Ala. Chancery, Eule 109.) Eeceivees §840. One receiver for same property, though more than one suit. Where there are more suits than one in which a receiver is required, whether the suits be in the same or different courts or divisions, but one receiver shall be appointed for the same property ; and should the receiver be appointed in a suit not entitled to priority, he shall hold the property, funds and proceeds subject to discharge the liens of the parties in their regular order of priority, and the chancellor who may have appointed him shall so decree, and the same shall be so applied. (Ala. Chancery, Eule 110.) § 841. Order, where there is one receiver and two or more suits. Where two or more bills are filed in different courts or divisions, and a receiver shall have been ap- pointed in one of them, the complainants in the o'ther suits, on producing a certified copy of the proceedings in their causes to the court where the receiver shall have been appointed, shall be entitled to an order that such receiver hold the property, or the funds and proceeds, to be applied according to the prior liens of the several cases, without regard to the first decree ; and in such case the creditors or complainants in the suits in which the receiver was not appointed, if dissatisfied with the re- ceiver appointed in the other suit, may move the court in which the receiver was appointed for his removal, and the appointment of another; and a sufficient cause being shown, the court must remove him and appoint some one else. (Ala. Chancery, Eule 111.) Miscellaneous Provisions §842. Suit at law and in chancery for same claim. Where a suit at law and a bill in chancery are instituted ALABAMA STATUTES AND RULES 969 for the same claim, the opposite party, on suggestion sup- ported by affidavit, may move the court, in term time, or the chancellor, in vacation, to inspect the records; and if it appear that the two suits are for one and the same cause of action, it shall be ordered that the plaintiff or claimant elect in which he will proceed, and that he dismiss the other. (Ala. Chancery, Eule 112.) § 843. Sales of personal property. The chancellor, in term time and in vacation, and the register, in vacation, may order the sale of any personal property in the hands of a receiver, executor, or administrator, over which the chancery court has taken jurisdiction. The application for such sale must be in writing, and, when made before the chancellor, the movant must give ten days' notice of the time and place of hearing to all parties in adverse in- terest, or their solicitors of record. When such applica- tion is to be heard before the register, such register must give the notice required above. From all rulings by the register on such motion, either party may appeal to the chancellor without giving bond ; such appeal to be heard at such time as the register may appoint, not less than five days from the decision appealed from; and the costs of the appeal are to be taxed against the unsuccesful party. Sales under such orders shall be governed by the laws applicable to sales of personal property under orders of the probate court, and reports thereof shall be made to the chancery court. (Ala. Chancery, Eule 113.) § 844. Necessary papers laid before chancellor on mo- tions and appeals. On the hearing of all motions, appeals, and other applications before the chancellor in vacation, certified copies of such of the papers on file as will enable him to decide the matters submitted understandingly, shall be laid before him. (Ala. Chancery, Eule 114.) § 845. Notice, length of. In all cases where, by the English orders of practice, two days' notice is required, one day shall be deemed sufficient, unless the chancellor shall otherwise direct. (Ala. Chancery, Eule 115.) § 846. Notice, upon whom served. Service of notice in relation to any supplemental bill, amendment, decree, motion, or other proceeding in the chancery court, on the 970 EQUITY PRACTICE guardian ad litem or next friend of any party, is a suffi- cient and valid service as to the party represented by such, guardian ad litem or next friend. (Ala. Chancery, Eule 116.) § 847. Computation of time. In the computation of time under these rules, in the giving of notice and the making of motions and other applications, the day on which the notice is given shall be included, and that on which the motion or other application is to be heard shall be excluded. Where one day's notice shall be required, the motion or application may be heard the next day after the notice is served. (Ala. Chancery, Eule 117.) CHAPTER XXXI DELAWARE STATUTES* § 848. General powers of Chancellor. The Court of Chancery shall have full power to hear and decree all matters and causes in equity, and the proceedings shall be, as heretofore by bill, answer, and other proper plead- ings, and the Chancellor shall have power to issue sub- poenas and all other process to compel defendants to answer suits there, to award commissions for taking answers and examining witnesses, to grant injunctions for staying suits at law, and to prevent waste, as there may be occasion, according to the course of chancery practice heretofore, with power to make orders and award process, and do all things necessary to bring causes to hearing; and to enforce obedience to decrees in equity by imprisonment of the body, or sequestration of lands. Provided, that the Chancellor shall not have power to determine any matter wherein sufScient remedy may be had by common law, or statute, before any other court, or jurisdiction, of this State : but that where matters, de- terminable at common law, shall be brought before him in equity, he shall remit the parties to the common law; and when matters of fact, proper to be tried by a jury, shall arise in any cause depending in chancery, the Chan- cellor shall order such facts to trial issues at the bar of the Superior Court. (Del. Eev. Code 1893, c. 95, sec. 1, p. 704; R C. 1914, c. 117, sec. 1 (§ 3844), p. 1750.) § 849. Powers of Chancellor in vacation. The Chan- cellor shall have power at chambers, and as well in vaca- * Eevised Code, as adopted October 22, 1914, in effect January 1, 1915. 971 Whltehouse B. P. Vol. 11 — 6 972 EQUITY PRACTICE tion as in term, to make, direct and award all such process, commissions and interlocutory orders, rules and other proceedings preparatory to the hearing of causes upon their merits, in the same manner and with the same effect as may be done in term, reasonable notice of the application therefor being given to the adverse party or his solicitor, to appear and show cause to the contrary. The Chancellor shall also have power at chambers, and as well in vacation as in term, to make all orders and direc- tions touching the investment, collection and disburse- ment of funds in court; also, in like manner, to appoint trustees upon petition by the parties interested, and to make any order or direction, upon application by trus- tees, for instructions touching the investments of trust funds ; also, in like manner to make and direct all orders, appointments and process, under the laws of this state, for the holding of inquisitions in lunacy, for the care of insane persons, and the management of their estates ; and also, in like manner, to make and direct all orders and proceedings, touching the care and management of estates held to charitable uses. (13 Del. Laws, c. 160; 17 Del. Laws, c. 215, sec. 4; E. C. 1914, c. 117, sec. 2 (§ 3845), p. 1751.) § 850. Powers at chambers. The Chancellor shall have power and authority, at chambers, to make any and all orders and decrees which might otherwise be made in term time. (Del. Eev. Code 1893, p. 711, 17 Del. Laws, c. 215, sec. 4; E. C. 1914, c. 117, sec. 2 (§ 3845), p. 1751.) § 851. Process. No process shall issue for the appear- ance of a party in chancery until the bill is regularly filed, except in applications for injunction to stay waste, or proceedings at law. But if a defendant shall remove from the county after he is served with a subpoena, or other process, the case may proceed and further process may be issued into any county. (Del. Eev. Code 1893, c. 95, sec. 2, p. 704; E. C. 1914, c. 117, sec. 3 (§ 3846), p. 1751.) § 852. Subpoenas — ^When and where returnable. All writs of subpoena upon bills or petitions filed shall, unless otherwise specially ordered, be returnable into the office DELAWARE STATUTES AND RULES 973 of the register in chancery on the first Monday of the next month, or of the next month but one (at the election of the complainant) occurring after twenty days from the time of the issuing thereof. (Del. Eev. Code 1893, p. 711, 17 Del. Laws, c. 215, seel; E. C. 1914, c. 117, sec. 4 (§3847), p. 1152.) § 853. Appearance day. The appearance day of the defendant shall be the rule day to which the subpoena is made returnable, provided he has been served with the process twenty days before that day, otherwise his ap- pearance day shall be the first Monday of the month next succeeding the rule day when the process is return- able. (Del. Rev. Code 1893, p. 711, 17 Del. Laws, c. 215, sec. 2; E. C. 1914, c. 117, sec. 4 (§ 3847), p. 1152.) § 854. Filing of answer. Upon the return of the sub- poena upon bill filed, the defendant or defendants shall, unless the time be enlarged by special order, be required to answer on the first Monday of the month following the . return of the subpoena. (Del. Rev. Code 1893, p. 711, 17 Del. Laws, c. 215, sec. 3; E. C. 1914, c. 117, sec. 4 (§ 3847), p. 1152.) § 855. Rules of pleading* — Dismissal — Decrees pro con- fesso. The pleadings and proceedings in chancery shall * An act passed in 1913, 27 Del. Laws e. 270, p. 797, provides for the appointment of a commission to revise the rules of procedure in Dela- ware. Section 4 of that act is as follows: "In order that the recommendations of the said Commission shall be carried into effect as speedily as possible, the Chancellor shall, for the Court of Chancery, and a majority of the other State Judges, shall, for the Supreme Court, the Superior Court, the Court of Oyer and Terminer, and the Court of General Sessions, have and they are hereby vested with full power and authority to make and ordain from time to time rules, in term or in vacation, changing the forms and kinds of actions and proceed- ings in said Courts, altering the mode and form of pleading in said Courts, and the mode of entering and transcribing pleadings, judgments, orders, decrees and other proceedings in said Courts, and prescribing how, in what cases and when, (whether in term or in vacation) judg- ments may be obtained for want of an affidavit of defense, and fixing the return day of all writs used in the commencement of suits, actions or other proceedings, and making regulations for the payment of costs, and otherwise, for carrying into effect the said rules. The rules afore- said, when so made and ordained as aforesaid, shall supersede all statutory provisions inconsistent therewith. ' ' This commission had not reported at the time the plates for this volume were made. 974 EQUITY PRACTICE be conducted by rules laid, or process awarded by tte Chancellor; and, for the non-compliance with such rules or process, decrees may be made, bills may be dismissed, or taken pro confesso, or other order taken to insure the return of, or compliance with the process, or with the rules. And the Chancellor may make all such rules and orders as may be necessary for regulating the practice of said court, for the return of writs, commissions, or other pro- ceedings, entering rules on public officers or others, filing pleadings, and all other rules necessary' for conducting causes, or executing decrees. (Del. Eev. Code 1893, c. 95, sec. 3, p. 704; E. C. 1914, c. 117, sec. 5 (§ 3848), p. 1152.) § 856. Sequestration. Instead of proclamation, or com- mission of rebellion, the court may, after writ of attach- ment, or distringas returned, award a writ of sequestra- tion. (Del. Eev. Code 1893, c. 95, sec. 4, p. 705; E. C. 1914, c. 117, sec. 6 (§ 3849), p. 1152.) § 857. Order for appearance — Notice — Pro confesso de- cree — Sequestration. If, after subpoena, or other process, issued and delivered to the sheriff thirty days before the return thereof, any defendant named therein, shall not appear according to the rules of the court, the court may, on affidavit that such defendant is out of the state, or cannot be found to be served with process, and that there is just ground to believe that he intentionally avoids such service, make an order for his appearance on a certain day, and publish such order in one or more newspapers as the Chancellor shall direct. And if the defendant shall not appear, after such publication, according to such order, the court may order the plaintiff 's bill to be taken pro confesso, and may thereupon issue process to compel the performance either by sequestration of the real and personal property of such defendant, or part thereof, suffi- cient to satisfy the plaintiff 's demand, or by causing pos- session of the estate, or effects, demanded by the bill, to be delivered to the plaintiff, or otherwise as the case re- quires. And the court may also order the plaintiff to be paid his demand out of any property so sequestered, DELAWARE STATUTES AND RULES 975 upon his giving approved security, in a sufficient sum, to abide any order of tlie court for the restitution thereof upon the defendant's appearing to defend the suit, and paying such costs as the court shall order. If such secur- ity be not given, the property sequestered, or whereof possession shall be decreed to be delivered, shall remain under direction of the court in the hands of a receiver, or otherwise, until the defendant's appearance, or until such order shall be made therein as the court shall think just. (Del. Rev. Code 1893, c. 95, sec. 5, p. 705; E. C. 1914, c. 117, sec. 7 (§ 3850), p. 1752.) § 858. Compulsory appearance. If a defendant, brought into court by process, will not appear according to the rules of court, or appoint a solicitor, the court may ap- point a solicitor to enter his appearance, and the cause may proceed as if he had actually appeared. But if any such defendant be in custody, or within the county, a copy of any decree, made in the case, shall be served upon him before any process shall issue in execu- tion, or for the performance thereof. (Del. Rev. Code 1893, c. 95, sec. 6, p. 705; R. C. 1914, c. 117, sec. 8 (§ 3851), p. 1753.) § 859. Service on absent persons, heirs, etc. If any de- cree shall be made against a person who is out of the state, without his having regularly appeared, and he shall, within five years thereafter, return publicly, he shall be served with a copy of such decree; and if such person shall, within five years after such decree, die without returning publicly to this state, or shall, within that time, die in custody before being served with a copy of such decree, then such person's heirs, if any can be found, in case of real estate sequestered, or delivered, or the hus- band, guardian, or trustee, of such heir, or such person's executors, or administrators, if there be any, in case of personal property sequestered, or delivered, shall be served with a copy of such decree. (Del. Rev. Code 1893, c. 95, sec. 7, p. 705; R. C. 1914, c. 117, sec. 9 (§ 3852), p. 1753.) §860. — Decree to stand absolute in absence of appearance. If any person, so served with a copy of such 976 EQUITY PRACTICE decree, shall not, within one year after such service, ap- pear and petition to have such case re-heard, the decree shall stand absolute against such person, heirs, executors and administrators, and all persons claiming by, through, or under him, or them, or any of them, by virtue of any act done, or to be done, subsequent to the commencement of such suit. (Del. Eev. Code 1893, c. 95, sec. 8, p. 706; R. C. 1914, c. 117, sec. 10 (§ 3853) p. 1753.) § 861. — • Limitation of right to rehearing. If any person, so served with a copy of such decree, shall, within one year next after such service, or if any person, not being so served, shall, within five years next after, appear and petition to be heard, and shall pay, or secure, reason- able costs, such person, or his representatives, or any claiming under him, or them, by virtue of any act done before the commencement of the suit, may be admitted to answer the bill, and thereupon the cause shall proceed to hearing, decree and execution, as if no previous decree had been made. (Del. Eev. Code 1893, c. 95, sec. 9, p. 706; R. C. 1914, c. 117, sec. 11 (§ 3854), p. 1754.) § 862. — Decree to stand absolute unless reheard in due time. If any person against whom such decree shall be made, his heirs, executors, or administrators, shall not, within five years next after such decree, appear and procure a rehearing of the cause, as aforesaid, the decree shall stand absolute against him and his heirs, executors and administrators, and against all persons claiming by, from, or under him, or them, or any of them, by virtue of any act done, or to be done, subsequent to the commencement of such suit; and at the end of such five years, the court may make such further order in the case as shall be just. (Del. Rev. Code 1893, c. 95, sec. 10, p. 706; R. C. 1914, c. 117, sec. 12 (§ 3855), p. 1754.) § 863. — Proof of absence and previous residence. The preceding sections shall not warrant any proceeding against a person out of the state, without proof, by affi- davit, that he had been a resident in the state within one year next before the subpoena issued in such suit, or un- less the said process be returned duly served, or unless the suit is brought against a person out of the state for DELAWARE STATUTES AND RULES 977 injunction to stay a suit at law, or to be relieved against a judgment, or proceedings at law by any such person out of the state, or unless the said suit shall be against a person seized, or in possession of any estate, real or per- sonal, within the state, or shall relate to, or concern, or affect, any such estate or property, rights, or credits, or any contracts made, or to be performed within the state. (Del. Eev. Code 1893, c. 95, sec. 11, p. 706; E. C. 1914, c. 117, sec. 13 (§ 3856), p. 1754.) § 864. Sale of land to enforce decrees. All real estate within this state, shall be liable to be sold, by order of the Chancellor, on such terms and in such manner as he shall direct, by the sheriff, or by any party to a suit in chan- cery, when such sale shall be necessary to give effect to, and carry into execution a decree of the Court of Chan- cery. And when any such real estate shall be so sold, and there shall be a surplus of money, arising from the sale, above what is sufficient for the purposes of the sale, such surplus shall be paid over, or applied, as the Chancellor shall order. Such sales shall be as available in law, to the vendees, as sales of land seized and sold upon judgment and execution are by virtue of any law of this state: provided, that if any such decree, under which any real estate shall be so sold, shall be reversed by the Supreme Court, none of the real estate, so sold, shall be restored, nor shall the sale thereof be avoided, but restitution shall be made, in such cases, of the money for which such real estate was sold ; and provided also, that no sale shall be valid until return thereof shall be made to the Court of Chancery, and it shall be approved and con- firmed by the Chancellor. (Del. Eev. Code 1893, c. 95, sec. 12, p. 706; E. C. 1914, c. 117, sec. 14 (§ 3857), p. 1755.) § 865. Power of Chancellor to make rules. The Chan- cellor shall also have power, by general rules made and promulgated by him from time to time, whether the same be according to the course of chancery practice in England or otherwise, to regulate the taking of testi- mony, to provide for the taking of testimony orally before the Court, to expedite the hearing, to modify, prescribe and regulate the force, effect and procedure of hearings 978 EQUITY PRACTICE upon Bill and Answer and generally for regulating the practice of said Court, in all matters and causes in Equity. (Del. Eev. Code 1893, c. 95, sec. 1, p. 704, as amended 1911; E. C. 1914, c. 117, sec. 15 (§3858), p. 1755.) Exiles foe Eefeeencb in Suits in the Couet of Chanceey § 866. Reference by consent. In any suit in the Court of Chancery, the matters in controversy in such suit, or any matter in controversy in such suit between the par- ties, may, by consent of the parties, their solicitors or agents, and rule of said court, be referred for adjustment to one or not more than three indifferent referees chosen by the parties, or appointed by the Chancellor, or by the Eegister in Chancery in vacation. (21 Del. Laws, c. 121, sec. 1; E. C. 1914, c. 117, sec. 16 (§ 3859), p. 1755.) § 867. Refusal or neglect of referee to act — Fine. If a person appointed a referee and duly notified thereof, shall without sufficient cause to the satisfaction of the Chan- cellor, refuse or neglect to perform the duties of such appointment, he shall be fined by the Chancellor not ex- ceeding fifty dollars for the use of the county. (21 Del. Laws, c. 121, sec. 2; E. C. 1914, c. 117, sec. 16 (§ 3859), p. 1755.) § 868. Oath of referee. Each referee, named in a rule of reference, shall, before entering upon his duties be duly sworn or affirmed to determine the matters referred by said rule, faithfully and impartially, according to the best of his skill and judgment. (21 Del. Laws, c. 121, sec. 3; E. C. 1914, c. 117, sec. 16 (§ 3859), p. 1756.) § 869. Award or report of referee — Review on appeal. The award or report of the referee or of the referees upon a reference so made, being approved by the Court of Chancery, shall not be reversed upon appeal for the want of any bill, answer or plea, or on account of any other defect in the proceedings had in such suit. (21 Del. Laws, c. 121, sec. 4; E. C. 1914, c. 117, sec. 16 (§ 3859), p. 1756.) §870. Decree on award. The Chancellor, upon the award of the referee or of the referees being approved by DELAWARE STATUTES AND RULES 979 Mm, shall thereupon enter a decree in said cause, which, to him, shall appear just and equitable. (21 Del. Laws, c. 121, sec. 5; R. C. 1914, c. 117, sec. 16 (§ 3859), p. 1756.) Appointment and Eules Governing Mastees IN Chanceey §871. Authority to appoint. The Chancellor shall have authority in any cause pending in the Court of Chancery of this state to appoint a Master in Chancery, pro hac vice in such particular cause. (22 Del. Laws, c. 449, sec. 1; R. C. 1914, c. 117, sec. 17 (§ 3860), p. 1756.) §872. Rules — Compensation. The Chancellor shall have authority and power to make and promulgate rules regulating the duties and compensation of Masters in Chancery so appointed, and regulating the practice in all particulars relating to such Masters in Chancery. The compensation of such Masters in Chancery shall be paid under said rules of court by the parties to said causes in which they are appointed. (22 Del. Laws, c. 449, sec. 2; R. C. 1914, c. 117, sec. 17 (§ 3860), p. 1756.) Eeceivees §873. Receivers of corporations vested with title to property. The receiver or receivers appointed by the Chancellor, of and for any corporation created by or existing under the laws of the State of Delaware, and the successor or successors of any such receiver or receivers, shall upon his or their appointment and qualification, and the survivors or survivor of such receivers shall upon the death, resignation or discharge of any co-receiver or co-receivers, be vested by operation of law, without any act or deed, with the title of such corporation to all its books, papers and documents, interests in patents, patent rights, copyrights and trademarks, rights of action aris- ing upon contracts or from the unlawful taking or deten- tion of or injury to property of such corporation; and other property, real, personal or mixed of whatsoever nature, kind, class or description, and wheresoever situate, except real estate situate outside the State. (27 Del. Laws, c. 194, sec. 1; R. C. 1914, c. 117, sec. 41 (§ 3884), p. 1765.) 980 EQUITY PRACTICE § 874. Receivers to file certified copy of their appoint- ment and qualifications within twenty days. The re- ceiver or receivers appointed by the Chancellor as afore- said shall within twenty days from the date of his or their qualification, file in the office of the Recorder of Deeds in each county in this state, in which any real estate belonging to such corporation may be situated, a certified copy of his or their appointment and qualifica- tion. (27 Del. Laws, c. 194, sec. 2; E. C. 1914, c. 117, sec. 41 (§ 3884), p. 1765.) §875. Receivers appointed pendente lite excepted. The provisions of this section shall not apply to receivers appointed pendente lite. (27 Del. Laws, c. 194, sec. 3; E. C. 1914, c. 117, sec. 41 (§ 3884) p. 1765.) § 876. Original papers may be sent upon appeal. For saving costs, the Chancellor may direct the original depositions and exhibits in a case, or any part thereof, instead of copies, to be sent, upon appeal, into the Supreme Court, under such regulations as he may pre- scribe. (Del. Eev. Code 1893, c. 95, sec. 15, p. 707; E. C. 1914, c. 117, sec. 42 (§ 3885), p. 1766.) § 877. Disqualification of Chancellor. The Chancellor shall not sit in any cause in which his parent, grand- parent, child, grand-child, brother, or sister, nephew, or niece, uncle, or aunt, his brother-in-law, or his son-in-law, is a party. (Del. Eev. Code 1893, c. 95, sec. 16, p. 707; E. C. 1914, c. 117, sec. 43 (§ 3886), p. 1766.) Bonds ok OBLiGATioisrs Taken in the Coiiht of Chancery § 878. Recording — Evidence. All bonds or obliga- tions heretofore taken and now remaining in force, or hereafter to be taken, pursuant to any order or decree of the Court of Chancery in this state, shall be recorded in the said court in such manner as the Chancellor shall direct; and the record of any such bond or obligation so recorded shall, upon proof of the loss of the original, be received as evidence in all courts of law and equity within this State. (Del. Eev. Code 1893, p. 711, 14 Del. Laws, c. 83, sec. 1; E. C. 1914, c. 117, sec. 44 (§ 3887), p. 1766.) DELAWARE STATUTES AND RULES 981 EULES OF COURT* SOLIOITOKS §897. Requisites to admission. It shall be requisite for the admission of a solicitor to practice in this Court, that he be of full age; that he be a person of integrity and good character; that he shall have been admitted to practice as an attorney in the law courts of the state; that he shall have been privately and fully examined by the Board of Examiners, and he shall be admitted only on the written report of said Board, stating his qualifications and recommending his admission. All examinations by the Board of Examiners may be oral or written, or both, in the discretion of the Board. (Del. Chancery, Rule 1, as amended.) § 898. Oath or affirmation. Every solicitor shall, on his admission, subscribe the roll, and take and subscribe the following oath or affirmation, viz.: "I, , do solemnly swear (or affirm) that I will behave myself in the office of a solicitor of the Court of Chancery of the State of Delaware, according to the best of my learning and ability, and with all good fidelity, as well to the Court as to the clients; that I will use no falsehood, nor delay any person's cause through lucre or malice; and that I will support the Constitution of the State of Dela- ware and also the Constitution of the United States of America. ' ' §899. Not to be taken as security. No solicitor or other officer of this Court, shall be taken as surety in any proceeding in the Court, except under special leave, granted upon written petition stating satisfactory reasons. (Del. Chancery, Rule 3.) § 900. Solicitors admitted in other states — Admission ad litem. Solicitors regularly admitted, and who have practiced at least two years in the Courts of Equity in other states, being of good character, may be admitted to practice in this Court. * Adopted Spring Session, 1868; subsequently amended as noted. Cor- rected to January 1, 1915. 982 EQUITY PRACTICE Solicitors ad litem may be admitted in the discretion of the Chancellor. (Del. Chancery, Rule 4.) Chamber Peaotice § 901. Powers at chambers or in vacation. The Chan- cellor will, at chambers, as well in vacation as in term, make, direct and award process, commissions and inter- locutory orders, rules and other proceedings preparatory to the hearing of causes upon their merits; also orders and directions touching the investment, collection and disbursement of funds in Court; also in like manner he will at chambers appoint trustees upon petition by all the parties interested, and will make orders and give direc- tions upon application by trustees for instructions touch- ing the investment of trust funds; also will make and direct all orders, appointments and process for the hold- ing of inquisitions in lunacy, and for the care of insane persons and the management of their estates, and all orders and proceedings touching the management of estates held to charitable uses. (Del. Chancery, Rule 5.) § 902. Application at chambers — How made. Applica- tions made at chambers for interlocutory orders, rules, process, leave to amend, etc., shall be by motion in writ- ing signed by the solicitor, or by petition signed by the party. A copy of such applications, with at least five days' previous notice of the time of preferring the same, must be served by the Register upon the solicitor of the adverse party. Applications transmitted to the Chancellor by mail will be considered as being preferred at the time designated in the notice if the same shall have been previously received by him. (Del. Chancery, Rule 6.) § 903. Orders at chambers — Service of copy. A copy of any order or rule made at chambers upon a party not appearing, shall be served by the Register upon such party or his solicitor, and shall take effect only from the time of such service. (Del. Chancery, Rule 7.) DELAWARE STATUTES AND RULES 983 Subpoena § 904. Issued only on bill or petition. No process for the appearance of a party shall issue except upon a bill or petition regularly filed. (Del. Chancery, Rule 8.) § 905. When returnable. A subpoena, unless otherwise specially ordered, shall be returnable on the first Mon- day in the next month or the next month but one after it is issued. (Del. Chancery, Rule 9.) § 906. Service. Service of a subpoena shall be made upon each defendant (including married women). It may be served by stating the substance of it to the defendant personally, or by leaving a copy of it at his usua,l place of abode, in the presence of some white adult person, at least six days before the return day thereof. The return shall state the mode of service. An order directing the mode of service in special cases may be obtained at chambers. (Del. Chancery, Rule 10.) , § 907. — On infants. If the defendant be an in- fant, service shall be made upon the guardian, or, if there be no guardian, upon the person having the care of the infant. (Del. Chancery, Rule 11.) § 908. — On corporations. Process against a cor- poration may be served on the President or head officer, if residing in the state; and if not, then on any officer, director or manager of the corporation. If a suit concern the note of a bank payable at one of its branches, the process may be served upon the President or Cashier of that branch. If the officers of a corporation defendant reside out of the state, service shall be made under special order, pursuant to Chap. 70, Sec. 7, of the Revised Code. The order shall be made upon petition and proof of the non-residence of such officers. (Del. Chancery, Rule 12.) § 909. Absent or concealed defendants — Order for appearance. If after subpoena or other process issued and delivered to the Sheriff thirty days before the return thereof, in the cases enumerated in Chap. 95, Sec. 11, of the Revised Code, any defendant named therein shall not appear, upon affidavit that such defendant is out of the state, or that he cannot be found to be served with process, and that there is just ground to believe that he 984 EQUITY PRACTICE intentionally avoids such service, an order will be made for the appearance of the defendant on a certain day, and published in one or more newspapers, as the chan- cellor shall direct; and upon such publication and the failure of the defendant to appear, proceedings may be had as directed in Chap. 95, Sees. 5, 7, 8, 9 and 10, of the Eevised Code. (Del. Chancery, Eule 13.) Appbabance § 910. Attachment or failure to appear. If by the return of the subpoena it appear that a defendant has been duly served and an appearance be not entered within the first three days after the return day, an attach- ment shall issue, upon motion ; and if a defendant brought into court upon such attachment refuse to appear, a solicitor will, on motion, be appointed to enter an appear- ance for such defendant. (Del. Chancery, Eule 14.) § 911. — On non-appearance of married woman. An attachment for the non-appearance of a married woman joined as a defendant with her husband, shall issue against her husband; and, except for cause shown, he may be compelled to enter an appearance for his wife jointly with himself. (Del. Chancery, Eule 15.) § 912. Appearance of infant — How made. The appear- ance of an infant shall be by a general guardian, if there be such, and he be not otherwise interested in the cause but otherwise by a guardian ad litem. A general guardian who has been duly served with subpoena, or a guardian ad litem, shall be subject to attachment for not causing such appearance to be entered. (Del. Chancery, Eule 16, as amended Feb. 7, 1908.) § 913. Appointment of guardian ad litem. A guardian ad litem will be appointed upon petition of the proposed guardian, verified by affidavit, setting forth the infancy of the defendant, that there is no general guardian within the state, or that such guardian has an interest in the cause, and that the proposed guardian ad litem, has no interest in the cause. Further proof of the infancy, or the production of the infant, may be specially ordered. If within three days after the return day of a sub- DELAWARE STATUTES AND RULES 985 poena duly served upon an infant defendant, having no general guardian within the state, or that such guardian has an interest in the cause, application be not made on his or her behalf for the appointment of a guardian ad litem, the complainant, or petitioner for partition, upon petition and proof by affidavit of the infancy, may obtain an order nisi for the appointment of a person named in the order to be such guardian. A copy of the order shall be served upon the infant personally, if over four- teen years of age; if under that age, upon the person with whom the infant resides. At the expiration of ten days after service of such copy, affidavit of such service being filed, if application be not made in behalf of the infant for the appointment of a guardian ad litem, the order shall become absolute. If the infant defendant has no known place of abode within the state, and an order for his appearance shall have been duly published, the order for the appointment of a guardian ad litem shall be absolute in the first instance. A guardian ad litem will not be appointed before service of the subpoena on the infant; or publication for him as a non-resident, except upon personal appearance of the infant before the chancellor. (Del. Chancery, Rule 17, as amended Feb. 7, 1908.) § 914. Decree pro confesso on non-appearance of cor- poration. If within the first three days after the return day of a subpoena against a corporation which has been duly served, an appearance be not entered, upon motion and proof of the service the complainant shall have a decree pro confesso as to such defendant.. (Del. Chan- cery, Eule 18.) § 915. Necessity for appearance of party against whom no relief is sought — Costs. Where no account, payment, conveyance, or other direct relief is sought against a party, not being an infant, such party, upon service of a subpoena, need not appear and answer, and the cause may proceed without the appearance of such party, unless the appearance be specially required by the prayer of the bill; but such party may appear and answer at his option, and if he does not appear and answer he shall be 986 EQUITY PRACTICE bound by all the proceedings in the cause. If he be required to appear and answer he shall be entitled to his costs, unless it be otherwise ordered. (Del. Chan- cery, Eule 19.) Bills § 916. How addressed — Signature of solicitor — Injunc- tion. All bills and petitions shall be addressed "To the Chancellor of the State of Delaware," without the addi- tion of his name or any other title or designation, shall be signed by the complainant and countersigned by his solicitor, and filed before they are presented. The signature of the solicitor shall be considered as a declaration by him that he believes the facts stated to be true, and that there is good ground for the suit or proceeding. Injunction bills shall be under oath or affirmation by the complainant that what is contained in the bill, so far as concerns the complainant's act and deed, is true, of his or her own knowledge, and that what relates to the act and deed of any other person, he or she believes to be true. (Del. Chancery, Eule 20.) § 917. Averments — Numbering para-graphs — Prayer — Non-demurrable omissions. The bill should contain, as concisely as may be, a narrative of the material facts, matters and circumstances relied upon for the relief prayed, and of facts intended to avoid an anticipated defense; such narrative being divided into paragraphs, numbered consecutively, and each paragraph containing as nearly as^may be, a separate and distinct statement or allegation. The prayer should be for the specific relief desired and for general relief; also for any neces- sary special orders, writs or process. A bill shall not be demurrable for the omission of the combination clause, the jurisdiction clause or the interrogatories. (Del. Chancery, Eule 21.) § 918. Interrogatories. The interrogatories need not be included in the body of the bill, but they may be appended to the bill, to be connected therewith by an appropriate reference in the prayer for interrogatories and to be con- DELAWARE STATUTES AND RULES 987 sidered as forming part of the bill. They should be con- veniently divided, and numbered consecutively; and the particular interrogatories which each defendant is re- quired to answer should be specified. (Del. Chancery, Eule 22.) §919. — When may be omitted. When a bill is filed other than for discovery only, the complainant may omit the interrogatories. In such case no exceptions shall be taken to the answer for insufficiency; and the answer shall have no effect as evidence at the hearing of the cause. But, upon a motion to dissolve an injunction, or to discharge a ne exeat, an answer may in all cases be sworn or affirmed to, with the same effect as heretofore. (Del. Chancery, Eule 23, as amended at spring session, 1871.) § 920. Cross bills for discovery or production of docu- ments unnecessary. Cross bills for discovery, or for the production of documents, and not for relief, shall not be necessary; but in lieu thereof the defendant, having sufficiently answered the bill, may file in the original cause a petition for the examination of the complainant upon interrogatories to be filed with the petition, or for the production of documents to be specified and described in the petition; and thereupon a rule shall be entered by the register in chancery that the complainant, within thirty days after service of a copy of the petition and of the interrogatories, if such be filed, do answer the interrogatories under oath, or file in the register's office, the documents called for, or show cause to the contrary. A copy of the petition and interrogatories shall be forth- with served upon the complainant's solicitor. Cause against such rule may be shown by an answer to the peti- tion verified by affidavit. The petition and answer shall have the same effect, respectively, as a cross bill and an answer thereto, and may be summarily heard in term or in vacation, upon application of either party, and twenty days' notice to the adverse party. An order for the re-' delivery of documents produced may, in a proper case, be obtained upon petition. (Del. Chancery, Eule 24.) Whitehouse B. P. Vol. II — 7 988 EQUITY PRACTICE Rules foe Pleading § 921, Rule to plead — Amendment — Extension of rule. Upon the defendant's appearance being entered, the register shall forthwith enter, of course, a rule upon the defendant to file his answer, demuri'er or plea, on or before the first Monday of the month next ensuing. If after such rule be entered and before answer, demurrer or plea filed, the bill be amended, the register shall forth- with serve a copy of such amendment upon the defend- ant's solicitor; and if within thirty days before the expiration of the rule the bill be amended, the rule shall be ipso facto extended thirty days. If after answer, de- murrer or plea, leave be granted to amend the bill, the time for further answer, demurrer or plea shall be by special order. (Del. Chancery, Rule 25; impliedly amended by 17 Del. Laws, c. 215, April 17, 1883; R. C. 1914, § 3847; ante, §§ 852, 853, 854.) Answers, Demxjerees and Pleas § 922. Answer — How entitled — Paragraphing — Re- sponse to interrogatories — Exceptions to bill — Oath. An answer should be entitled in the name of the court and of the cause, signed by the defendant and countersigned by his solicitor, and should be divided into paragraphs numbered consecutively, each paragraph containing, as nearly as may be, a separate and distinct allegation — the interrogatories of the bill to be in all cases responded to in the body of the answer as heretofore. The clause reserving exceptions to the bill, the protestations, and the concluding clause denying combinations, etc., may be omitted. All answers, except where the interrogatories have been omitted, shall be under oath or affirmation that what is contained in the answer, so far as concerns the defend- ant's act and deed, is true, and that what relates to the act and deed of any other person, he or she believes to be true. (Del. Chancery, Rule 26, as amended, spring session, 1871.) § 923. Notice on filing — Service of copy of answer. An DELAWARE STATUTES AND RULES 989 answer being filed, the register shall forthwith give notice thereof in writing to the complainant's solicitor, and enter of record the date of such notice. If the com- plainant's solicitor reside away from the connty seat a copy of the answer shall be served, instead of notice as before provided. (Del. Chancery, Enle 27.) § 924. Exceptions — Filing — Notice on allowance — Further answer. Exceptions to the answer may be filed within thirty days next after the service of notice that the answer has been filed. If exceptions to the answer be filed, the register shall forthwith transmit the papers in the case to the chancellor, and on return of the same to the register, if the exceptions be allowed, a rule shall he entered for further answer in six weeks or attach- ment; and on the coming in of such further answer, fifteen days' written notice of the same shall be given in the manner provided in Rule 27, to the complainant 's solicitor, within which time exceptions to the further answer may be filed. (Del. Chancery, Eule 28.) § 925. Proceedings in absence or on disallowance of exceptions. If no exceptions to an answer or to a further answer be filed within the time limited therefor, or being filed shall be disallowed, the register shall, after ten days from the expiration of the time for exceptions, if none be filed, or from the disallowance of exceptions filed, enter a replication and rejoinder gratis, and rules for commis- sions on both sides ; but at any time before replication and rejoinder entered, the complainant may give written notice to the register of his election to go to a hearing on bill and answer, and thereupon a rule to that effect shall be entered instead of a replication and rejoinder. Notice shall be forthwith given to the solicitors respec- tively of the entry of replication and rejoinder and rule commissions, and notice shall be given to the defendant's solicitor of the complainant's election of a hearing upon bill and answer. (Del. Chancery, Rule 29.) § 926. Motion for decree notwithstanding answer. The complainant may at any time after answer and before replication filed move for a decree, notwithstanding answer. Upon such motion the facts set forth in the 990 EQUITY PRACTICE answer except as affected by evidence taken as herein- after provided, shall be taken to be true for the purposes of such motion only. At the hearing upon such motion, evidence may be offered and produced, at the instance of any party to the cause, upon special allowance in the discretion of the chancellor obtained at least ten days before the hearing. All such evidence shall be produced in open court or at chambers and viva voce, unless other- wise directed by the chancellor. Testimony taken viva voce before the chancellor shall be taken stenograph- ically, and a transcript thereof made for the record in case of appeal. Should the decree moved for be refused upon such hearing, final decree in the cause may, upon the election of the complainant, be entered, or upon like election, the cause shall proceed in due course, as if such motion for decree notwithstanding answer had i^ot been made, whereupon the admission of the truth of the facts set up in the answer, implied in the motion for a decree notwithstanding the answer, shall not be available for any purpose in said suit. Upon the hearing of said motion for decree notwithstanding the answer, the chan- cellor may, in a proper case, in his discretion, decline to decide the cause upon such motion, and thereupon may order and direct that the said cause proceed to hearing upon replication and proof taken in the usual course. Upon the filing of the motion for a decree notwith- standing the answer, notice thereof shall be forthwith given to the solicitor for the defendant by the register, and the hearing thereon shall be had within thirty days after the filing of such motion, at a date to be fixed by the chancellor, upon due notice and special application thereof. Any such motion for a decree notwithstanding the answer shall be accompanied by a certificate of the solicitor for the complainant that such motion is, in his judgment, the proper method for the trial of the cause, and that it is not made for the purposes of delay. The costs of such motion shall be subject to the regular riiles of cost in equity cause, and the chancellor may in any case, where,- in his judgment, such motion- was improper, DELAWARE STATUTES AND RULES 991 impose the same, or any part thereof, upon the com- plainant. (Del. Chancery, Eule 29a.) § 927. Demurrer— Requisites — Service — ^Time for hear- ing. A demurrer shall be signed by counsel, and shall be supported by the affidavit, of the defendant that it is not interposed for delay. Upon a demurrer being filed, a copy shall be forthwith served by the register on the complainant's solicitor, and unless otherwise ordered, it shall stand for hearing after fifteen days' notice in writ- ing given by the solicitor for either party to the solicitor for the other party. (Del. Chancery, Eule 30.) §928. Plea — Requisites — Service — Taken as true in absence of replication. A plea shall be signed by the defendant and countersigned by his solicitor, and shall be supported by the defendant's affidavit that it is not interposed for delay, and that he believes it to be true as to all matters of fact alleged in it. When a plea is filed, a copy shall be forthwith served by the register upon the complainant's solicitor, and the date of such service entered of record. If, within thirty days after such service, a replication to the plea be not filed, the plea shall be taken to be true in fact and shall stand for argument upon the question of its sufficiency at the next ensuing term. Upon replication filed and issue taken upon the plea, rules for commissions shall be entered as upon replication to an answer. (Del. Chan- cery, Eule 31.) Decrees Peg Conpesso § 929. When decree taken pro confess© — Procedure. If an answer, demurrer, or plea be not filed according to the rule therefor, upon motion of. the complainant, the bill shall be taken pro confes'so; and thereupon the cause shall be heard ex parte upon notice to the defendant's solicitor, as the chancellor shall direct, and a decree will be made in accordance with the allegations of the bill, if proper to be made, and the same can be done without an answer; or, the complainant, if he requires any dis- covery or answer to enable him to obtain a proper decree, may move for an attachment against the defendant to compel an answer. 992 EQUITY PRACTICE If, upon exceptions allowed to an answer, and order for further answer, such further answer be not filed according to the rule, the bill may be taken pro confesso as to the allegations of the bill not sufficiently answered, or the complainant may, at his election, have an attach- ment. (Del. Chancery, Rule 32.) § 930. Rule to answer to defendant not found on attach- ment to appear. If a defendant, who has been duly served with a subpoena, and has failed to appear, cannot be found upon an attachment issued to compel his appear- ance, on motion and due return of the attachment, a rule may be obtained that such defendant appear and answer within three months, or that the bill be taken pro con- fesso; and at the expiration of such rule, if the defendant shall have failed to appear and answer, the bill shall be taken pro confesso and a decree made thereupon. (Del. Chancery, Rule 33.) § 931. Non-resident or absconding defendants. At the expiration of the time limited under an order of publica- tion for the appearance of a non-resident or absconding defendant, pursuant to Chap. 95, Sec. 5, of the Revised Code, if such appearance be not entered, on motion and proof of publication the bill shall be taken pro confesso, and a decree made thereupon. Such decree will be sub- ject to Sees. 7, 8, 9 and 10 of said chapter. (Del. Chan- cery, Rule 34.) § 932, Service of copy of decree before process in execu- tion in certain cases. If a decree be made against a defendant, who being taken under an attachment refuses to appear pursuant to Chap. 95, Sec. 6, of the Revised Code, and such defendant be in custody or within the county, a copy of such decree shall be served upon him before any process shall issue in execution of or for the performance thereof. (Del. Chancery, Rule 35.) Evidence §933. Commissions — Issuance. Commissions shall issue on ten days ' notice of interrogatories filed, directed to commissioners named to the register by the parties respectively in vacation, or to a commissioner named DELAWARE STATUTES AND RULES 993 by the solicitor who shall file the interrogatories, if no one be named by the solicitor of the opposite party within ten days. The register, before issuing the commission, shall notify the solicitor of either party of the nomination of a commissioner on behalf of the opposite party, and if a commissioner named be objected to, another person shall be substituted by order of the chancellor. If a commission is to be executed without the state, there shall be filed with the interrogatories a list of the names and residence of the witnesses intended to be examined, and no other shall be examined under the com- mission. (Del. Chancery, Eule 36.) §934. Exceptions to interrogatories — Filing. Excep- tions to interrogatories must be filed before the commis- sion issues. If such exceptions be filed, the party filing the interrogatories excepted to may, at his election, either cause the papers to be transmitted to the chancellor for such order as he may make in the premises, or he may reserve the exceptions to be considered at the hearing of the cause. (Del. Chancery, Eule 37.) § 935. Depositions — Taking and return. Every deposi- tion shall be written by one of the commissioners or by a clerk under their immediate direction, be subscribed by the witness, and signed and certified by the commis- sioners to have been sworn or affirmed to by the witness. All deeds, books and other papers produced at the execu- tion of a commission, to be proved shall be endorsed by whom proved and signed by the commissioners, and shall be returned with the commission. No persons other than the witness under examination, tlie commissioners, and their clerk, shall be present at such examination ; and after the examination of a witness the contents of his deposition shall not be communicated to any person before the same has been returned and publication has passed. A copy of this rule shall be annexed to every commis- sion issued. (Del. Chancery, Eule 38.) §936. Return of commission — Publication — Excep- tions. A commission to take testimony shall be returned at least six days before the term at which it is returnable. 994 EQUITY PRACTICE and shall be opened and published by tbe register as soon as received by him. Written notice of such publication shall be forthwith' given to the solicitors of each party. Exceptions to the execution of a commission, to the competency of a witness, or to the admissibility of testi- mony upon grounds not applying to the interrogatories, shall be filed and a copy thereof served upon the solicitor of the adverse party on or before the third day of the term at which the commission is returnable. Such excep- tions may, on motion of the adverse party, be heard before the hearing of the cause. (Del. Chancery, Rule 39.) § 937. Order for taking testimony on oral examination — Notice. Upon the application of either party to a cause, the register shall enter an order for taking the testi- mony of witnesses on behalf of such party within the state, without written interrogatories filed, upon oral examination and subject to cross-examination and re-examination by the parties or their solicitors, before an examiner or examiners, to be appointed by the chan- cellor. A commission shall issue to an examiner, as to a commissioner, except that in lieu of interrogatories the commission shall be accompanied by a copy of the bill and answer. At least fifteen days' notice shall be given to the solicitor of the adverse party of the time and place for the examination of witnesses. The examiner may adjourn the examination from time to time, as shall be necessary. (Del. Chancery, Eule 40.) § 938. Oral examination — How made. Upon such oral examination, each deposition shall be taken down in writing by the examiner, or by a clerk under his imme- diate direction, and, ordinarily, shall not be by written question and answer, but in the form of a narrative, except that either solicitor may require or the examiner may direct that any interrogatory be reduced to writing and so propounded. The direct examination shall be completed, read to the witness and signed by him before his cross-examination is commenced; the cross-examina- tion shall be completed, read to the witness, and signed by him, before he is re-examined by the party calling him; and testimony, upon re-examination shall, in like DELAWARE STATUTES AND RULES 995 manner, be read to the witness and signed by him. The re-examination shall be confined to matters inquired of upon the cross-examination. Each deposition shall be certified to at the conclusion' by the examiner, the whole to be done in the presence of the parties or their solicitors choosing to attend. The witness may correct or explain any mistake made by him at any time before his examination is finally closed; but no part of his testimony previously reduced to writing shall be erased or altered. The examination of each witness shall proceed de die in diem until it is completed, except that when necessity require the ex- aminer may make a longer adjournment, noting the cause of it. After the examination of a witness is finally closed, he shall not be again examined to the same facts without the consent of the adverse party, or by order of the court on sufficient cause shown; but he may be examined as to any matter arising out of the testimony of other witnesses. (Del. Chancery, Eule 41.) § 939. — Objection to testimony. Upon oral exam- ination, if objection is made to any witness as inter- ested, or otherwise incompetent, or to any interroga- tory or testimony as irrelevant or improper, the examiner shall state his opinion upon the objection to the parties or their solicitors present. If his opinion be against the objection, he shall note the objection and his opinion thereon, and proceed to take the testimony. If, in his opinion, the objection is well made, the testimony objected to shall not be taken by him, unless it is insisted on by the party on whose behalf the testimony is offered, or by his solicitor. If the taking of the testimony, in opposition to his opinion, be insisted on, the examiner shall take down the testimony, noting the objection, his opinion thereon as stated to the parties, and the fact that the testimony was insisted on. (Del. Chancery, Eule 42.) § 940. — Impeaching evidence — Adjournments. Upon oral examination before an examiner, testimony may be taken, under the same commission, against the party on whose behalf the commission issued, for the 996 EQUITY PRACTICE purpose of impeaching the testimony of any witness who has been examined for such party, by proving the bad character of the witness for veracity or contradictory statements made by him; such proof to be made accord- ing to the rules applicable in courts of law. The exam- iner, shall afford reasonable opportunity by adjourn- ments, for the taking of such testimony. (Del. Chan- cery, Rule 43.) § 941. — Return and filing — Exceptions. With- in five days after an oral examination of witness is closed, and at least six days before the term to which the com- mission is returnable, the examiner shall cause the dep- ositions and exhibits taken or produced before him, to be returned and filed in the office of the register, who shall forthwith publish the same. Exceptions to the execution of the commission shall be filed and a copy served upon the adverse party or his solicitor, on or before the third day of the term to which the commission is returnable. Such exceptions may, on motion of the adverse party, be heard before the hear- ing of the cause. Exceptions to the competency of a witness, or to any interrogatory or testimony as irrelevant or improper, having been taken before the examiner, and the same having been noted by him, may be heard at or before the hearing of the cause, as the chancellor, upon application of either party, may direct. The omission to except to the competency of a witness, or to any interrogatory or testimony, at the time the witness or testimony is offered, shall be a waiver of the objection; provided, how- ever that a party may, on or before the third day of the term to which the commission is returnable, file ex- ceptions to the competency of a witness who has been ex- amined without objection made before the examiner to- gether with his affidavit that when the witness was of- fered for examination the ground of objection was not known to the solicitor of the party present at the ex- amination. (Del. Chancery, Eule 44.) § 942. Special order for examination of witness — Tak- ing in open court. Upon motion and on grounds satis- DELAWARE STATUTES AND RULES 997 factory to the chancellor, a special order may be made for the examination or re-examination of any witness, or for the taking of any proof in open court at the hearing of the cause. Testimony or proof taken under such order shall be reduced to writing, signed by the witness, and certified to by the register, and the same shall form a part of the record of the cause as if taken under a com- mission. (Del. Chancery, Rule 45.) § 943. Examination of parties. Any party may be ex- amined as a witness, and in like manner as any other wit- ness, between other parties to the cause, as to matters in which he is not interested. Such examination shall be made by special order, to be entered by the register upon the filing of an affidavit made by the party applying for the same, stating that the party to be examined is a material witness and is not interested in the matter to which he is to be examined. The testimony taken under such order shall be subject to all just exceptions. Such exceptions shall be filed on or before the third day of the term at which the commission is returnable. (Del. Chancery, Rule 46.) §944. Examination de bene esse. At any time after a bill filed, and before replication and rejoinder entered, upon the application of either party, and upon his affi- davit being filed that any of his witnesses are aged or infirm, or going out of the state, or that one of them is the sole witness to a material fact, and on ten days' no- tice to the adverse party or his solicitor, of interroga- tories filed, as in other cases, the register shall issue a commission to a commissioner, to be named by the chan- cellor, to take the examination of such witness or wit- nesses, de bene esse, upon the interrogatories and cross- interrogatories. Such commission shall be executed and returned as in other cases, but publication of the same when returned, shall not be made, except upon special order. (Del. Chancery, Rule 47.) § 945. Neglect or refusal to appear or testify — Attach- ment. If a witness, duly summoned to appear and tes- tify before a commissioner or examiner, shall neglect to appear, or appearing shall refuse to testify, upon affidavit 998 EQUITY PRACTICE of the due service of summons and neglect to appear, or of such refusal to testify, an order for an attachment may- be obtained at chambers. (Del. Chancery, Rule 48.) Exhibits § 946. Proof of. At the hearing of a cause, proof may be made of exhibits of deeds, receipts, and other instru- ments of writing by the instrumentary witnesses, or evi- dence of handwriting; also of books of account. Upon the application of either party, it will be ordered that the proof of any exhibit be reduced to writing, signed by the witness and certified to by the register, and the exhibit attached to the proof, or otherwise connected with it by a proper reference thereon endorsed. Testi- mony so taken shall be a part of the record of the cause with like effect as if taken under a commission. (Del. Chancery, Rule 49.) §947. Filing and service of list of exhibits. A list of exhibits shall be filed and a copy served by the regis- ter upon the solicitor of the adverse party at least six days before the term at which the cause is heard. No record, book, document or paper, not having been proved before a commissioner or examiner, shall be read in evi- dence at the hearing unless it appear upon the list of ex- hibits filed; but, in a proper case, leave may be obtained to add to the list filed an exhibit which has been omitted. (Del. Chancery, Rule 50.) Change of Paetibs § 948. Devolution of interest or liability by operation of law. When, by reason of the marriage of a party, or of the insolvency or bankruptcy of a party, or of a descent from or devise by a deceased party, there shall occur a change or transmission of interest or liability in a suit, a bill of revivor, or supplemental bill, shall not be neces- sary. The person succeeding to any such interest or lia- bility, either as complainant or defendant may, by peti- tion, obtain a rule upon the adverse party to show cause, at a time designated, why the petitioners should not be admitted to prosecute or defend the suit, and at the re- DELAWARE STATUTES AND RULES 999 turn of the rule, if cause to the contrary be not shown, an order to that effect shall be made. The adverse party may, likewise, by petition, obtain a rule upon the person succeeding to an interest or liability in a suit to show cause, at a time designated, why he should not be made a party, and at the return of the rule, if cause to the contrary be not shown, the person served therewith shall, by order, be made a party to the suit, with the ^ame effect as if he had voluntarily become such. A petition under this rule need not recite at large the original proceedings in the suit, but should set forth the facts showing the change or transmission of interest, and the relation to the suit of the person to be made a party. Cause against the order prayed for by the petition may be shown by written answer filed, verified by affidavit. (Del. Chancery, Eule 51.) § 949. — Executors or administrators — How made parties. The foregoing rule shall not apply to an executor or administrator of a deceased party; but upon sug- gestion of the death upon the record, the executor or administrator may, on motion, be admitted' to prosecute or defend the suit. The executor or administrator of a deceased defendant, being duly served with a scire facias thirty days before the return thereof, shall be considered a party to the suit in the same manner as 'if he had vol- untarily made himself a party. ( Del. Chancery, Eule 52.) § 950. Insane parties — Trustee or guardian ad litem as party. If, pending a suit, either party becomes in- sane, his trustee may, on motion, be admitted to prosecute or, defend the suit; or the court will appoint a guardian ad litem, as the case may require. (Del. Chancery, Eule 53.) Hearing §951. When cause deemed ready for hearing — When commission to take testimony not to issue. A cause shall be deemed ready for hearing upon a demurrer being filed ; also at the expiration of thirty days from the filing of a plea, if no replication to it be filed ; and at the expiration 1000 EQUITY PRACTICE of three months from the entry of replication and re- joinder to a plea or answer. No commission for taking testimony shall issue after three months from the entry of replication and rejoinder, except upon written consent of parties filed or by special order. (Del. Chancery, Eule 54.) §952. Printed list of causes— Delivery to solicitors. The register shall, thirty days before each term, cause to be made and delivered to each solicitor in any cause pending, a printed list of all causes then pending and undetermined, showing the names of the parties to the cause, its page on the docket, the names of the solicitors, and the condition of the cause. (Del. Chancery, Eule 55.) Deceees and Orders § 953. Enrolling and signing on record. All final de- crees shall be enrolled and signed on the record. Before a decree is enrolled and signed on the record, it shall be open to rehearing upon petition and proper cause shown ; but after enrollment and signature a decree may be re- viewed only by a bill of review or appeal. (Del. Chan- cery, Eule 56.) §954. Interlocutory orders — ^Recitals — Record. Inter- locutory orders made upon petition, such as orders for the payment of funds in court, for the appointment of guardians ad litem, etc., need not recite the matters set forth in the petition ; but in lieu thereof the petition shall be recorded next before the order which shall follow thus, ' ' And now, to wit : this day of , A. D , the foregoing petition being read and con- sidered, it is ordered," etc. (Del. Chancery, Eule 57.) Appeals § 955. When may be prayed and entered — Persons under disability. An appeal may be prayed and entered at any time, in open court, within the period limited by statute for the filing of an appeal in the Supreme Court; that is, an appeal from an interlocutory decree or order may be prayed before the first day of the term of the Supreme Court next after the entering of such DELAWARE STATUTES AND RULES .1001 decree or order, or before the expiration of such, further time as the Supreme Court may allow, pursuant to Chap. 124, Sec. 1 of the Eevised Code (of 1893) ; and an appeal from a final decree may be prayed within two years after the signing of such decree, subject in all cases to the savings of the statute in favor of persons under dis- ability or infancy, coverture or incompetency of mind. (Del. Chancery, Eule 58.) § 956. Stay of proceedings — Security. An appeal shall be no stay of proceedings under a decree, unless the appellant shall give sufficient security, to be approved by the chancellor, that the appellant shall prosecute his ap- peal to effect and pay the condemnation money and all costs, or otherwise abide the decree in appeal, if he fail to make his plea good. (Del. Chancery, Eule 59.) § 957. Sending up original papers in cause. Upon ap- plication of either party to an appeal, in court or at chambers, an order may be obtained for sending to the Supreme Court the original papers in the cause, to be read upon the hearing of the appeal. (Del. Chancery, Eule 60.) Injunctions § 958. Preliminary injunction — Special prayer neces- sary. A preliminary injunction will not be ordered upon a bill filed, unless it be specially prayed for. (Del. Chancery, Eule 61.) § 959. Applications — ^Motions to dissolve — When may be made. An application for an injunction after a bill or petition filed, or a motion to dissolve an injunction, may be made at any time, in court or at chambers; and it shall be no objection to the hearing of a motion to dis- solve an injunction after answer filed, that the time lim- ited for exceptions has not expired, or that exceptions are pending. (Del. Chancery, Eule 62.) §960. Answer under oath to dissolve preliminary in- junction. If a preliminary injunction be issued, the defendant may put in his answer, under oath or affir- mation, for the purpose of moving to dissolve the injunc- tion, although an answer under oath or affirmation is 1002, EQUITY PRACTICE waived by the bill or is not required by law.* (Del. Chancery, Eule 63.) § 961. Motions to dissolve — Testimony. Upon motion to dissolve an injunction after an answer has been filed, in cases where testimony in support of the bill or answer is admissible, such testimony shall not be by ex parte affidavits, but by depositions to be taken under special order before an examiner appointed by the chancellor. The examination of witnesses shall be upon reasonable notice to the adverse party, as the order may direct, and shall be conducted, and the depositions taken and reduced to writing, subject to the rules prescribed for taking oral testimony before an examiner to be read at the hearing of a cause. The depositions, when completed, shall be forthwith filed in the register's office. When the urgency of the application is such as to preclude the examination of witnesses before an examiner, ex parte affidavits may be read as heretofore. (Del. Chancery, Eule 64.) § 962. Order for injunction — Expiration. An order for an injunction shall expire on the second day of the term next ensuing its date, if the writ shall not have been previously issued. (Del. Chancery, Eule 65.) * The following Is the present practice of Delaware regarding preliminary injunctions as stated by Hon. Joseph C. JoUs, Clerk and Eegister of the Court of Chancery, Newcastle County, Delaware: Instead of granting a preliminary injunction, the status quo is preserved by granting a rule and restraining order, where prayed for. It is necessary to add to the special prayer for preliminary injunction, words to this effect, ' ' and in the meantime that said defendants be restrained by an order of this Court from," etc., asking for the immediate relief desired. Then the Court makes a formal 6rder for the issuance of a rule to show cause and also a restraining order, and usually includes in the order the fixing of a time for filing afSdavits on behalf of the complainant, the defendant, and in reply, giving a reasonable time for each, and the hearing is on a motion for a preliminary injunction on affidavits. In such case, according to a ruling of the present Chancellor, a sworn answer filed before the hearing on the motion is admissible evidence. By the present practice, a bill to stay waste is practically the only bOl upon which a preliminary injunction issues on the filing of the bill, and then only on written order of the Chancellor. DELAWARE STATUTES AND RULES 1003 Miscellaneous Etjles * §981. Infancy of party not ground for demurrer or delay. In no suit in equity shall the party demur, or proceedings be deferred because of the infancy of a party. (Del. Chancery, Eule 84.) § 982. Security for costs by complainant. Where the complainant in a bill in equity resides out of the state, or has been discharged under any bankrupt or insolvent law, the defendant, on motion, and affidavit of a just or legal defense against the whole demand, may have a rule for security for costs by a certain day, or that the bill be dismissed. (Del. Chancery, Eule 85.) § 983. Oaths or aflfirmations — How administered. Oaths or affirmations to bills, answers, pleas and demurrers, shall be administered by the register, or by a commis- sioner, to be appointed by the chancellor. (Del. Chan- cery, Eule 86.) § 984. Order or statute for deposit in court — How complied with. A statute or order requiring money to be brought into court shall be deemed to be complied with by depositing the same in the Farmers' Bank, at the place of holding the court within the county, and by filing a certificate of such deposit and making a return of report thereof to the court. (Del. Chancery, Eule 87.) §985. Rules and orders — ^Necessity for service. A copy of any order or rule, made by the chancellor at chambers, upon a party not appearing, shall be served by the register on such party, or his solicitor, and shall take effect only from the time of such service; but of all orders, rules and decrees made in open court in a cause pending, the parties shall be deemed to have notice with- out service of a copy of the same. (Del. Chancery, Eule 88.) § 986. Notices — Requisites — Service. All notices shall be in writing, and served upon the solicitor of the party, * Chancery Eules 66 to 83, inclusive, relating to partition are omitted, since they have been made obsolete by the Eevision of 1914, transferring jurisdiction in partition from Chancery to Orphans' Courts. Whitehouse E. P. Vol. II — 8 1004 EQUITY PRACTICE unless it be otherwise specially directed. Service upon a solicitor not residing at the county seat may be by mail. (Del. Chancery, Eule 89.) §987. Stipulations — Requisites. All agreements of solicitors touching proceedings in a cause shall be in writing and filed, or they will not be noticed by the court. (Del. Chancery, Eule 90.) § 988. Papers on file not to be taken from register's office. The register shall not, without special order, suffer any bill, answer, deposition, or other paper or document filed with him, to be taken out of his office, except to be brought into the court, or taken by the chancellor for his consideration. (Del. Chancery, Eule 91.) §989. Pleadings and papers filed to be engrossed — Erasures, etc. Pleadings, or other papers to be filed in a cause, shall be fairly engrossed, and if materially de- faced by erasures or interlineations, they shall not be re- ceived by the register. (Del. Chancery, Eule 92.) § 990. Provisions as to answers under oath. A defend- ant shall not be bound to answer, under oath or affirma- tion, any statement or charge in the bill, unless particu- larly interrogated thereto. One of several defendants shall be bound to answer, under oath or affirmation, such only of the interrogatories as he or she shall be specially required to answer. But a defendant who is interrogated as to any of the statements or charges of the bill, may, at his or her election, answer, under oath or affirmation as to all the statements or charges of the bill; and such answer, being responsive to the bill, shall be evidence at the hearing, with the same effect as if such defendant had been interrogated at large. (Del. Chancery, Eule 9.3.) § 991. Sales on partition — Judgment bond — Payment of purchase money. In all sales made by trustees in par- tition causes, in the court of chancery, the trustee shall, on the day of sale, take from the purchaser a judgment bond, either with or without surety, at the discretion of the trustee, for twenty per centum of the whole purchase money of the lands sold; which bond shall be taken in the name of the trustee as such trustee, and shall be re- DELAWARE STATUTES AND RULES 1005 turned by him into the court of chancery at the time of the return under the decree for sale. Such bond shall be according to the form prescribed in Form No. 51, and shall be expressly subject to the disposition of the chan- cellor. On or before the first day of the term of the court of chancery succeeding the sale, the purchaser shall deposit the whole purchase money, or in case the sale be partly on credit, such part .of said purchase money as shall be required to be paid in cash, in the Farmers' Bank in the county where the sale is returnable, to the credit of the court of chancery, and deliver to the trustee a cashier's certificate of such deposit, and the trustee shall make the said certificate part of his return. Upon such certificate and the bond aforesaid being returned into the court of chancery, the chancellor will direct the bond to be surrendered to the purchaser, and in the event of the failure on the part of the purchaser to make such deposit, the chancellor will make such order re- specting the said bond as to him shall seem proper in the premises. (Del. Chancery, Eule 94, adopted June 15, 1878.) Eeceivees * § 992. Order to show cause. Upon the filing of a bill for the appointment of a receiver of a corporation, in the absence of an answer admitting the allegations of the bill, an order may be made by the chancellor that a rule issue and be served upon the defendant to show cause why a receiver should not be appointed. (Del. Chancery, Eule 95.) §993. Receivers pendente lite. Upon the hearing of the rule, if an answer admitting the allegations of the bill be not then filed, a receiver pendente lite may be appointed to continue until final decree, or until the further order of the chancellor, upon the giving of a bond by the receiver to the state of Delaware, within the time fixed in the order of appointment, with surety to be approved by the chancellor. (Del. Chancery, Eule 96.) * Rules 95-115 inclusive were adopted April 25, 1910. 1006 EQUITY PRACTICE § 994. Bond. The bond of the receiver shall be in the following form: KNOW ALL MEN BY THESE P±iE«Ji;^TS,'That we of the (city or town) of , county and state of Delaware, and are held and firmly bound unto the state of Delaware, in the penal sum of Dollars, lawful money of the United States of America, to be paid to the said state of Delaware: To which payment well and truly to be made, we bind ourselves, jointly, and severally, and our respective heirs, administrators, executors, succes- sors and assigns, firmly for and in the whole firmly by these presents. SEALED with our seals and dated this day of in the year of our Lord one thousand hundred and THE CONDITION OF THIS OBLIGATION IS SUCH That if the above bounden , who was on the day of A. D. 19 , ap- pointed by the chancellor of the state of Delaware, re- ceiver of a corporation of the state of Delaware, and has accepted said appointment with all the duties and obligations pertaining thereunto, shall well and faithfully execute his said office of receiver and perforin and fulfill all'trusts and duties to the said office appertaining, and shall observe and perform all orders and directions of the chancellor touching the administra- tion of the said receivership, and the care, management and disposal of the trust estate and funds, and shall faith- fully and truly account for all the moneys, effects and assets of the said corporation which shall come into his hands and possession, and if at the expiration of his said receivership, or otherwise as the chancellor may order, the said , or in the case of his de- cease, if the heirs, executors and administrators of the said , shall without delay, convey, assign, deliver and pay over unto the person or persons entitled to receive the same, or to his successor, all the estate and funds then held by him as such receiver, subject to DELAWARE STATUTES AND RULES 1007 such just allowance as the chancellor shall make, then this obligation to be void; otherwise to be and remain in full force and virtue. Signed, sealed and delivered (Seal) in the presence of (Seal) § 995. Residence of receiver. No person shall be ap- pointed sole receiver who does not at the time of his ap- pointment reside in the state of Delaware. (Del. Chan- cery, Eule 98.) § 996. Failure to give bond. In the case the receiver appointed by the chancellor shall fail to give bond, with surety, within the time required by the order of his appointment, said appointment shall be void. (Del. Chancery, Rule 99.) § 997. Filing inventory — List of debtors and creditors — Stockholders. Every receiver shall, unless otherwise ordered by the chancellor, within thirty days from the time of his appointment and qualification, file with the register in chancery: (1) An inventory of all the estate, property and effects of the company, and an appraisement thereof to be made by appraisers to be appointed by the chancellor. (2) A list of the debtors and creditors of the com- pany, showing all the debts due to and from the company with the last known address or place of business of debtor and creditor. (3) A list of the stockholders of the company with their last known post office address or place of business. (Del. Chancery, Eule 100.) § 998. Report. Every receiver shall, within three months of his appointment, submit to the chancellor a full report of his proceedings and the state of the affairs of the company, and thereafter make like report at the expiration of each six months during the pendency of the receivership. (Del. Chancery, Eule 101.) § 999. Notice to creditors. Within fifteen (15) days after the filing of a list of the creditors of the company, the register in chancery shall give to every known cred- itor of the company notice by mail to file their claims 1008 EQUITY PRACTICE against the company within a certain time to be fixed in said notice which shall not be less than sixty days after the mailing of said notices; and cause a like notice to be published in such newspaper or newspapers and for such time as shall be designated by the chancellor; and forth- with report to the chancellor a performance of the duty. (Del. Chancery, Eule 102.) § 1000. Claims — Filing and requisites. All claims of creditors of the company shall be filed in the office of the register in chancery and shall consist of a statement in writing under oath, signed by the creditor, setting forth the amount claimed to be due at the time of the appointment of the receiver, the consideration therefor and the payments received on account thereof, if any, and shall contain an averment whether any security is held therefor, and, if so, what. All book accounts shall be fully itemized. When interest is claimed on instruments bearing in- terest according to the terms thereof, the time from which interest is claimed and the rate thereof shall be stated in the claim. Claims based on obligations of record must be accom- panied with a certified abstract of the record. Claims based on written evidence of indebtedness must be accompanied by such instrument. Claims having priority and claims based upon liens on the property of the corporation shall contain a state- ment of the priority, if any, to which they are entitled. (Del. Chancery, Eule 103.) §1001. — Exceptions. Exceptions to claims may be filed in the office of the register in chancery by the receiver or by any party in interest within thirty days from the expiration of the time for filing claims and will be heard by the chancellor upon such notice to the re- ceiver, claimant and exceptant as may be ordered by the chancellor. (Del. Chancery, Eule 104.) § 1002. Accounts — Requisites. Accounts rendered by receivers shall be for a period therein stated, and show in detail (1) all moneys received, when, from whom or from what source; (2) gains or losses on sales made of DELAWARE STATUTES AND RULES 1009 the property included in the inventory; (3) payments made, to whom and for what purpose. Every such ac- count shall be accompanied by oath of the receiver that the account is just and true, and shall be filed in the office of the register in chancery, with the vouchers for all payments; whereupon it shall be the duty of the reg- ister in chancery to examine the account, compare it with the vouchers, prove the calculations and additions and certify therein whether he finds the same to be correct. (Del. Chancery, Eule 105.) § 1003. Compensation for services and expenses. A re- ceiver desiring compensation for services and allowances for his expenses and services of his counsel shall file with his account a petition for such allowances therein stating generally the services rendered by himself and counsel, and the compensation desired for the services of each. (Del. Chancery, Rule 106.) § 1004. — Notice of filing of account. Upon the fil- ing of an account by a receiver, or a claim of a receiver for compensation and allowances, the register in chan- cery shall forthwith give notice thereof by mail to all creditors who have filed claims; and no action shall be taken upon said account or petition for compensation and allowances until the expiration of at least two weeks after the filing of such account or petition; and the reg- ister shall report to the chancellor his performance of the duty. (Del. Chancery, Eule 107.) § 1005. — Exceptions to account. Exceptions to said account or allowances prayed for by the receiver may be taken in writing by any party interested and shall be filed in the office of the register within two weeks of the filing of thereof, and thereupon the register in chancery shall forthwith give notice thereof in writing by mail to the receiver, or his counsel, and the exceptions may be heard by the chancellor after the expiration of ten days from the time such notice is sent. (Del. Chan- cery, Eule 108.) § 1006. — Allowance — Order of distribution — Report, Upon settling the final account with the receiver the chancellor may make final allowances to the receiver 1010 EQUITY PRACTICE for his services and expenses and for the services of his counsel, and order the distribution by the receiver among the creditors or stockholders of the company of the moneys remaining for distribution, to which they are entitled; and thereupon the receiver shall make report to the chancellor of his proceedings under the order of distribution, submitting vouchers for all payments so made. (Del. Chancery, Rule 109.) § 1007. Discharge of receiver. When a receiver shall have made a final distribution of the property and ef- fects of the company and duly reported the same, and shall have complied with all orders and decrees of the chancellor touching the distribution, the receiver may be discharged by the chancellor upon petition of the re- ceiver. (Del. Chancery, Eule 110.) § 1008. Hearing on exceptions to claims and accounts. At the hearing of exceptions to claims and to accounts, the testimony of witnesses, either given orally at the hearing, or taken by depositions upon commission as in other causes pending in Chancery, will be received by the chancellor, or by a master to be appointed, as the chan- cellor may order. "When testimony is taken orally before the chancellor, stenographic notes of such testimony shall be taken and a transcript thereof made for the record in case of appeal. (Del. Chancery, Eule 111.) § 1009. Failure to make or file accounts or reports. When the receiver shall fail to make or file reports, re- turns or accounts at the time when they shall be due, the register shall report the same to the chancellor and also notify the receiver of the delinquency. (Del. Chancery, Eule 112.) § 1010. Deposit of moneys. The receiver shall deposit as a special account in his name as receiver all moneys of the corporation that may come into his hands in a bank- ing institution in the state of Delaware, and shall im- mediately upon making his first deposit therein file in the office of the register a declaration in writing of the depositary. (Del. Chancery, Eule 113.) § 1011. Withdrawal of original instruments filed by claimants. Original instruments filed by claimants may DELAWARE STATUTES AND RULES 1011 be withdrawn upon application to the chancellor, and a copy thereof substituted therefor, until the chancellor shall upon application of the receiver or any party in- terested require the production of the original instru- ment. (Del. Chancery, Eule 114.) § 1012. Notice of sales. Unless otherwise ordered by the chancellor, notice of all sales to be made by the re- ceiver shall be sent by the receiver by mail at least two weeks prior to the day of sale to all creditors who have filed claims, and to all stockholders. (Del. Chancery, Eule 115.) CHAPTER XXXII FLORIDA STATUTES* Aeticle 1. Powers of Chanceey Cotjets in Vacation § 1013. Action to be as effective as in term. The cir- cuit courts, sitting in chancery, shall always be kept open for the issuing and return of process, making, hearing, and deciding motions, presenting, arguing and deciding upon petitions, granting injunction and passing inter- locutory and final decrees and orders. And all action in said matters in vacation shall have the same force and effect as if done in term time. (Fla. Gen. St. 1906, § 1859.) Article 2. Locality of Actions in Chancery § 1014. Provisions at law to govern. All provisions of law governing locality of actions at law shall, when they can be made applicable, govern those in chancery. (Fla. Gen. St. 1906, § 1860.) § 1015. Locality in applications for receivers when property in more than one judicial circuit. Whenever an application shall be made for the appointment of a receiver to take charge of either real or personal prop- erty, or both, and the property is situated in more than one of the judicial circuits of the state of Florida, the court in appointing said receiver shall have jurisdiction over the entire property for the purposes of that suit: Provided, That the application for appointment of the receiver must be made to the judge of a judicial circuit in which the principal or main place of business, residence * General Statutes, 1906 ; as amended by Acts of 1907, 1909, 1911 and 1913'. Corrected to January 1, 1915. 1012 FLORIDA STATUTES AND RULES 1013 or office of the defendant is situated; and the court to which such application is made shall have exclusive juris- diction thereof, and any action on the application by the said court, either affirmative or negative, shall be final, subject, however, to a right of appeal. (Fla. Gen. St. 1906, § 1861.) § 1016. Where suits may be begun. Suits shall be begun only in the county (or if the suit is in the justice of the peace court in the justice's district) where the de- fendant resides, or where the cause of action accrued, or where the property in litigation is. If brought in any county or justice district where the defendant does not reside, the plaintiff, or some person in his behalf, shall make and file with the praecipe or bill in chancery, an affidavit that the suit is^ brought in good faith, and with no intention to annoy the defendant. This section shall not apply to suits against non-residents. (Fla. Gen. St. 1906, § 1383.) § 1017. Suits against defendants residing in different counties or districts. Suits against two or more defend- ants residing in different counties (or justices* districts) may be brought in any county or district in which any defendant resides. (Fla. Gen. St. 1906, § 1384.) § 1018. Suits against corporations. Suits against domestic corporations shall be commenced only in the county (or justice's district) where such corporation shall have or usually keep an office for the transaction of its customary business, or where the cause of action accrued, or where the property in litigation is; and in the case of companies incorporated in other states or counties, and doing business in this state, suits shall be commenced in a county or justice's district wherein such company may have an agent or other representative, or where the cause of action accrued, or where the property in litiga- tion is situated. (Fla. Gen. St. 1906, § 1386.) Aeticle 3. Peocess, in Chanceey § 1019. When to issue. — 1. In First Instance. No sub- poena in chancery shall issue until a bill of complaint shall have been filed in the clerk's office. 1014 EQUITY PRACTICE 2. Alias. If process shall not be returned, or shall be returned unexecuted, the clerk of the court from which it issued shall issue a similar process, if the same shall be required by the party at whose instance it was originally issued. (Fla. Gen. St. 1906, § 1862.) § 1020. When returnable. It shall be returnable to the rule day, and within the time provided for writs of sum- mons at law. (Fla. Gen. St. 1906, § 1863.) § 1021. Form of. — 1. Form Prescribed. The form of subpoena to answer shall be as follows: The State of Florida to , Greeting: You are hereby commanded and strictly enjoined that, laying all other business aside, and notwithstanding any excuse, you personally be and appear before the judge of our court for the county of , on the day of , at the court house of said county, to answer to a bill of complaint exhibited against you in our said court by , and to do further and receive what our said court shall consider in that behalf; and this you are not to omit, under a penalty of $500. "Witness the Honorable judge of said court, the day of , in the year A. D. 190.... 2. Number of Defendants To Be Included In. — The names of all defendants, however numerous, may be in- cluded in one subpoena. (Fla. Gen. St. 1906, § 1864.) Sekviob and Eetuen of Pkocess in Chanoeey § 1022. Personal service. — 1. Service. Personal serv- ice of process, and of orders and decrees in chancery, to be made upon parties to be served, natural or corpor- ate, shall be governed by the provisions of law applicable to the service of a writ of summons ad respondendum. The copy served shall have endorsed thereon the name of the court from which the subpoena issued, the title of the cause, the words, ' ' Copy of subpoena, ' ' and the name of the complainant's solicitor. FLORIDA STATUTES AND RULES 1015 2. Eeturn of OiSeer. The return upon process in chan- cery of the officer executing the same shall be governed by the provisions of law applicable to the return upon a writ of summons ad respondendum. When service of process is made by any person other than the sworn officer of the court whence it issued, affidavit of the time and manner of the service shall be made and returned with the original subpoena. (Fla. Gen. St. 1906, § 1865.) § 1023. Constroictive service. — 1. Obtaining Order for Publication. Whenever the complainant, his agent or attorney, shall state in a sworn bill or affidavit, duly filed, the belief of the affiant that the defendant is a resident of a state or country other than this state, specifying as particularly as may be known to affiant such residence, or that his residence is unknown, or that, if a resident, he has been albsent more than sixty days next preceding the application for the order of publication, and that there is no person in the state the service of a subpoena upon whom would bind such defendant, or that he conceals himself so that the process cannot be served upon him, and further states the belief of the affiant as to the age of the defendant being over or under 21 years, or that his age is unknown, the judge or clerk of the court in which such bill shall have been filed shall make an order against the defendant requiring him to appear to the bill upon a day to be fixed by the order, not less than thirty nor more than fifty days from the time of the making of the order, if he be stated therein to be a resident of the United States, and not less than fifty nor more than eighty days if he be stated to be a non-resident of the United States, or if his residence be stated as un- known. For the purpose of this section, the insular pos- sessions of the United States shall be regarded as foreign countries. 2. Publication of Order. The clerk shall have all orders of publication, against an absent defendant, whether made by the judge or himself, published with as little delay as may be, in such newspaper as may be designated in the order, once a week, for four consecu- tive weeks, if the defendant be stated to be a resident of 1016 EQUITY PRACTICE the United States ; or if he be stated to be a non-resident of the United States, or if his residence be stated to be unknown, for eight consecutive weeks ; he shall also, with- in twenty days of the making of the order, post a copy of the said order at the door of the court house of the county, and send by mail a copy to the defendant, if his residence be shown by the bill of affidavit. (Fla. Gen. St. 1906, § 1866, as amended by Fla. St. 1913, p. 294.) Article 4. Pleadings in Chanceey § 1024. Amendment of. The complainant may, as of course, amend his bill at any time before the answer, plea or demurrer filed and without costs; but if the defendant's appearance be entered, and the defendant has procured a copy of the bill, the complainant shall furnish the defendant with a certified copy of the amend- ment gratis. No amendment in a matter of substance shall be allowed, as of course, to any bill which has been sworn to. (Fla. Gen. St. 1906, § 1867.) § 1025. In cases of foreclosure. In the foreclosure of any mortgage the original mortgage or a certified copy of the same, certified by the clerk of the circuit court of the county in which the same shall have been recorded, shall form a part of the bill of complaint for the fore- closure of such mortgage. (Fla. Gen. St. 1906, § 1868.) The Answer § 1026. Insufficient answers and proceedings thereon. If an answer shall be considered insufficient, the com- plainant's solicitor may file exceptions thereto at any time before the next rule day, after notice of the filing thereof in the clerk's office, and enter a rule with the clerk that the defendant make a better answer before the next succeeding rule day, notice of which rule and the filing of the exceptions shall be served upon the de- fendant or his solicitor; and if the defendant shall insist on the sufficiency of his answer, the complainant may set down his exceptions for argument, and if they are sus- tained, no further or other answer shall be received but on payment of costs; and if a second answer put in be FLORIDA STATUTES AND RULES 1017 adjudged insufficient, the defendant shall pay double costs; and the defendant may also in such case be ex- amined on interrogatories and be committed until he sufficiently answer them; or the plaintiff may move the court to take so much of the bill as is not answered as confessed, and may file his replication, obtain testimony and proceed to hearing in the usual manner. (Fla. Gen. St. 1906, § 1869.) Pleas and Demtjkebes § 1027. May be pleaded together, and with answer. The defendant may, at any time before the bill is taken as confessed, or afterward with the leave of the court, demur or plead to the whole bill or part of it, and answer the residue thereof in such manner as is authorized by the practice of the high court of chancery in England. (Fla. Gen. St. 1906, §1870.) § 1028. May be incorporated in the answer. The de- fendant may in all cases, instead of filing a formal plea or demurrer, insist on any special matter in his answer, and have the same benefit thereof as if he had pleaded the same matter or had demurred to the bill. (Fla. Gen. St. 1906, § 1871.) § 1029. Complainant's dealing with. The complain- ant may set down a demurrer or plea to be argued, or he may take issue upon the plea; if upon an issue the facts stated in the plea be determined for the defendant, they shall avail him as far as in law and equity they ought to avail him. (Fla. Gen. St. 1906, § 1872.) § 1030. Effect of overruling. If a plea or demurrer has been overruled, no other plea or demurrer shall there- after be received, but the defendant shall answer the complainant's bill; and if he fail to do so before the next rule day thereafter, the same, or so much thereof as was covered by the plea or demurrer, may be taken as con- fessed and the matter thereof be decreed accordingly. (Ma. Gen. St. 1906, § 1873.) § 1031. Replications — ^When to be filed. General repli- cations to answers shall be filed at the rule day next sue- 1018 EQUITY PRACTICE ceeding the filing of the answer. (Fla. Gen. St. 1906, § 1874.) § 1032. Special replications to answer not allowed. No special replication to an answer shall be filed but by- leave of the court or judge thereof for cause shown. (Fla. Gen. St. 1906, § 1875.) § 1033. Failure to reply to, or set down pleas or de- murrer. If a complainant shall not reply to or set down for hearing any plea or demurrer before the next rule day after the filing of the plea or demurrer, the bill may be dismissed with costs. (Fla. Gen. St. 1906, § 1876.) Aeticle 5. Pbactice in Chanceky § 1034. What practice to prevail. In the absence of provisions of the law or rules of practice of this state, the rules of practice in the courts of equity of the United States, as prescribed by the supreme court thereof, under the act of Congress of the 8th of May, one thousand seven hundred and ninety-two, shall be rules for the practice of the courts of this state when exercising equity jurisdiction; and when the rules of practice so directed by the supreme court do not apply, the practice of the courts shall be regulated by the practice of the high court of chancery of England. (Fla. Gen. St. 1906, § 1877.) § 1035. Service of notices. All notices in chancery to be served shall be served upon the opposite party or his solicitor, if residing within twenty miles of the court house in the proper county, personally, or if residing at a greater distance, by mail. Proof of the mailing shall be required by affidavit or certificate from the person mailing. (Fla. Gen. St. 1906, § 1878.) Aeticle 6. Evidence in Chanceey § 1036. Taken before issue. Testimony in chancery may be taken at any time after the bill shall have been filed, under the circumstances set forth in Section 1541, by a commission or by deposition before a justice of the peace. All the provisions of law relating to the obtaining and execution of commissions, and the taking of deposi- tions before justices of the peace, at law, shall apply to the FLORIDA STATUTES AND EULES 1019 like proceedings in chancery. (Fla. Gen. St. 1906, § 1879.) § 1037. Taken after issue. Testimony to be taken after issue shall be taken upon commission as hereinbefore provided, or before an examiner to be appointed by the court, or orally before the court. Commissions may be obtained in such cases without stating any reasons therefor other than that the case is at issue, and may issue for the taking of testimony of resi- dent witnesses. Examiners when appointed may take the testimony upon written, direct and cross interrogatories, or orally, as the court may in its order direct, or as the rules of practice of the court may prescribe. Oral examinations before the court shall only be had after order to that effect made by the court upon motion by either party. The testimony shall be taken down in writing, and filed in the cause. (Fla. Gen. St. 1906, § 1880.) Akticlb 7. Masters in Chanceey § 1038. Appointment of. Judges of the circuit court may appoint in writing from among the members of the bar in such circuit as many general masters in chancery as such judges may find necessary, and they shall con- tinue in office until removed by the court. The appoint- ment shall be recorded in the minutes of the court. (Fla. Gen. St. 1906, § 1881.) § 1039. Oath of. Every person appointed such master in chancery shall, before he shall proceed to discharge any of the duties of his said office, take the oath required of officers by the Constitution and laws of this state ; and such oath shall be entered at full length on the minutes of the court by which such master is appointed. (Fla. Gen. St. 1906, § 1882.) § 1040. General duties and powers of. — 1. Duties of. Every master in chancery shall perform, under the direc- tion of the court, all the duties which, according to the practice in chancery, appertain to the office. 2. Powers of. He shall, within his respective county, have all the powers conferred on masters in chancery by Whitehouse E. P. Vol. II— 9 1020 EQUITY PRACTICE the rules of practice prescribed by the Supreme Court of the United States for the chancery courts of the United States, not inconsistent with the laws and rules of prac- tice of this state. He shall have power to administer all oaths and affirma- tions which are required by law, and to take and certify affidavits and depositions, to issue subpoenas for wit- nesses whose testimony is to be taken before him, and shall have the same power to compel the attendance of witnesses and to punish for contempt as is given to jus- tices of the peace. (Fla. Gen. St. 1906, § 1883.) § 1041. Process of. Process issued by him shall be directed to the sheriff or any constable of said county. (Fla. Gen. St. 1906, § 1884.) § 1042. Bond of. The court may require masters in chancery when appointed to dispose of property, real and personal, and when appointed as receivers, and when the same is not otherwise provided by law, to give bond and surety in such manner and with such penalty for the payment over of all moneys which may come to their hands, and for the due performance of their duties, as the court may direct. Such bond shall be made payable to the State of Florida, and shall be for the benefit of all persons affected or aggrieved by any act or malconduct of the person required to give such bond. (Fla. Gen. St. 1906, § 1885.) Pboceedings Before Masters § 1043. Presentation of matter to. Whenever a refer- ence of any matter is made to a master in chancery to examine and report thereon, the party at whose instance or for whose benefit the reference is made shall cause such matter to be presented to the master for a hearing within the time limited by the court for such hearing; and if such party shall omit so to do, the adverse party shall be at liberty forthwith to cause proceedings to be had before the master, at the cost of the party procuring the reference. (Fla. Gen. St. 1906, § 1886.) § 1044. Time and place of hearing-. Upon every such FLORIDA STATUTES AND RULES 1021 reference it shall be the duty of the master, as soon as he reasonably can after the same is brought before him, to assign a time and place for proceeding therein, and to give the notice thereof to each of the parties or their counsel; and if either party shall fail to appear at the time and place appointed, the master shall be at liberty to proceed ex 'parte, or in his discretion to adjourn the examination and proceedings to a future day, giving notice to the absent party or his counsel of such adjourn- ment. (Fla. Gen. St. 1906, § 1887.) § 1045. Speeding the proceedings. It shall be the duty of the master to proceed with all reasonable diligence in every such reference, and with the least practicable delay; and either party shall be at liberty to apply to the court for an order to the master to speed the pro- ceedings, and to make his report, and to certify to the court the reasons for any delay. (Fla. Gen. St. 1906, § 1888.) § 1046. Regulation of proceedings before. The master shall regulate all the proceedings in every hearing when not otherwise specially instructed by the court, and administer all oaths and affirmations, and generally do all other acts and direct all inquiries and proceedings in the matters before him which may be necessary and proper to the justice and merits of the case and, the rights of the parties. (Fla. Gen. St. 1906, § 1889.) § 1047. Evidence permissible before. All affidavits, depositions and documents which have been previously made, read or used in the court upon any proceeding in any cause or matter, or when so directed by the court, may be used before the master. (Fla. Gen. St. 1906, § 1890.) § 1048. Evidence before, to be in writing. The evi- dence in all examinations shall be taken down in writing by the master, or by some other person by his order, in his presence, and filed with his report. (Fla. Gen. St. 1906, § 1891.) § 1049. Fees of witnesses before. The fees of witnesses before the master shall be the same as allowed in cases in the circuit court. (Fla. Gen. St. 1906, § 1892.) 1022 EQUITY PRACTICE § 1050. Report of masters in chancery. As soon as his report is ready he shall return the same into the clerk's office, and such report shall be filed by the clerk and the return thereof noted on the order book of the court. In such report no part of any state of facts, charges, depositions, affidavits, examinations or answers already on file in the cause used before him shall be stated or recited ; but such state of facts, charges, affidavits, deposi- tions, examinations or answers shall be identified, speci- fied and referred to so as to inform the court which state of facts, charge, affidavit, deposition, examination or answer were used by the master. (Fla. Gen. St. 1906, § 1893.) § 1051. Special masters in chancery. The court may appoint, for any particular service required by it, from among the members of the bar of such court, in active practice, special masters in chancery, who shall receive the same fees as general masters, and who shall be gov- erned by all the provisions of law governing general mas- ters, except that they shall not be required to make oath and give bond as required by Sections 1882 and 1885 : Pro- vided, however. Said judge may, in his discretion, appoint the clerk of the circuit court, or the county judge in any county, a special master in chancery in cases where the resident attorneys in such county are all interested on one side or the other of the matter in controversy: Pro- vided, further. That in counties where there is no resi- dent attorney the said judge may appoint any competent person to be a general or special master in chancery: And Provided, further, That in all cases upon a proper showing to the court that such appointment is advisable in" the particular case, a person other than a member of the bar may be appointed. (Fla. Gen. St. 1906, § 1895.) Article 8. Deceees Pro Confesso § 1052. When may be entered. The defendant shall, unless the time shall be otherwise enlarged for cause shown by the judge of the court upon motion for that purpose, file his plea, demurrer or answer to the bill in the clerk's office on the rule day next succeeding that FLORIDA STATUTES AND RULES 1023 fixed for an entry of appearance, whether the service shall have been personal or constructive; in default thereof, the complainant may, at his election, cause the clerk to enter an order (as of course) in the order book that the bill be taken pro confesso; and thereupon the cause shall be proceeded in ex parte, and the matter of the bill may be decreed by the court accordingly, if the same can be done without an answer and is proper to be decreed. (Fla. Gen. St. 1906, § 1896.) § 1053. Prerequisites to enter upon constructive service. The clerk, before a decree pro confesso upon constructive service shall be entered, must file with the papers a cer- tificate that compliance with Section 1866 has been had, stating particularly the manner and time of such com- pliance. (Fla. Gen. St. 1906, § 1897.) § 1054. Setting aside final decree upon decree pro con- fesso. When the bill in any cause is taken pro confesso, the court may proceed to a decree, and such a decree ren- dered shall be absolute unless the court shall set aside the same or enlarge the time for filing the answer for cause shown upon motion and affidavit of the defendant, made and filed within twenty days after the entry of the final decree; and no such motion shall be granted unless upon the payment of costs of complainant in the suit up to that time, or such part thereof as the court shall deem reason- able, and unless the defendant shall undertake to file his answer within such time as the court shall direct, and submit to such other terms as the court shall direct for the purpose of speeding the cause. (Fla. Gen. St. 1906, § 1898.) § 1055. Proceedings in lieu of decree pro confesso. The complainant may, however, instead of causing a decree pro confesso to be entered, if he requires any discovery or answer to enable him to obtain a proper decree, have process of attachment against the defendant to compel an answer; and the defendant shall not, when arrested upon such process, be discharged therefrom unless upon filing his answer or otherwise complying with such order as the court may direct as to pleading to or fully answer- ing the bill within a period to be fixed by the court, and 1024 EQUITY PRACTICE undertaking to speed the cause. (Fla. Gen. St. 1906, § 1899.) Deceees Genebally § 1056. Signing and. recording of.* Decrees in equity may be signed by the judge when pronounced and shall be recorded upon the minutes of the court without any other enrollment. And no process shall be issued or other proceedings had on any final decree or order until the same shall have been signed and recorded as aforesaid. (Fla. Gen. St. 1906, § 1900.) § 1057. Execution of money decrees. Executions on decrees for money shall issue as and be governed by the law relating to executions on judgments. (Fla. Gen. St. 1906, § 1901.) §1058. Effect of a decree for conveyance. Where a decree in chancery shall be made for a conveyance, re- lease, or acquittance of land, or any interest therein, and the party against whom the said decree shall pass shall not comply therewith by the time appointed, then such decree shall be considered and taken in all courts of law and equity to have the same operation and effect and to be as available as if the conveyance and release or acquittance had been executed conformably to such de- cree, and this notwithstanding any disability of such parties by infancy, lunacy, coverture, or otherwise. (Fla. Gen. St. 1906, § 1902.) Aeticle 9. Petitions foe Reheaeing § 1059. Form and contents of. Every petition for a rehearing shall contain the special matter or cause on * Validating orders or decrees entered in order book. Wherever any order or decree in chancery required to be signed by the judge of the circuit court shall have heretofore been entered in the chancery order book instead of upon the minutes of the court, every such order and decree shall be, and the same is hereby declared to be, of the same force and effect, from the date of entry in such chancery order book, as if the same had been at such time entered in the minutes of the court; Pro- vided, however, that nothing herein shall affect creditors or subsequent purchasers for value without notice. (Fla. Laws 1909, c. 5914 (No. 45), p. 58.) FLOKIDA STATUTES AND KULES 1025 whicli such a rehearing is applied for, and the facts therein stated, if not appearing on the face of the pro- ceedings, shall be verified by the oath of the party or some other credible person. (Fla. Gen. St. 1906, § 1903.) §1060. Presentation of, as a supersedeas. The pres- entation of a petition for rehearing presented within thirty days from the time of pronouncing the decree, shall stay all proceedings thereon for thirty days from such presentation, but for no longer unless bond be given by the petitioner, with good and sufficient sureties, as in cases of appeal, conditioned for the payment of all damages and costs which may accrue by such delay, the penalty of which shall be fixed by the judge of the court to whom said petition for rehearing may be presented. "When such bond shall have been given, all proceedings shall be stayed until the petition shall have been heard and determined. (Fla. Gen. St. 1906, § 1904.) § 1061. Granting of rehearing as a supersedeas. After a rehearing shall have been granted, no further or other proceedings shall be had or taken on the decree pro- nounced on the original hearing of the cause. (Fla. Gen. St. 1906, § 1905.) Article 10. Appeals in Chanceey § 1062. Matters of right. Appeals in chancery shall be matters of right. (Fla. Gen. St. 1906, § 1906.) § 1063. Limitation of time. Appeals in chancery, whether from final decrees or from interlocutory orders or decrees, must be taken within six months after the entry of the order or decree appealed from. (Fla. Gen. St. 1906, § 1907.) § 1064. From interlocutory decrees. Appeals may be taken and prosecuted from any interlocutory order, de- cision, judgment or decree of the circuit courts of this state, when sitting as courts of equity ; but the conferring of the right shall not be construed so as to deprive either party from deferring and postponing the entry of his appeal until after th,e entry of the final decree, or end of the cause as prescribed by law; nor shall such post- ponement of the appeal be decreed, held or taken to be 1026 EQUITY PRACTICE an acquiescence in the propriety of any interlocutory order or decree made in the progress of the cause, or any waiver of any error therein. (Fla. Gen. St. 1906, § 1908.) § 1065. Appeal as a supersedeas. — 1. Appeal from Final Decree. No appeal from a final decree shall operate as a supersedeas unless said appeal be taken within the time fixed by law for taking a writ of error operating as of course as a supersedeas; or, if not taken within that time, unless one of the justices of the supreme court shall, by order, direct the said appeal to operate as a supersedeas. In any event bond and security shall be given as provided for in cases of writs of error. No supersedeas on an appeal from any such decree granting or dissolving an injunction shall have the effect to sus- pend or modify the decree appealed from unless the supreme court, or a justice thereof, shall make an order for the suspension or modification of the decree upon like terms and conditions as to bond and security. 2. Supersedeas on Appeal from Interlocutory Orders, etc. No appeal from any interlocutory decision, judg- ment or decree of a circuit court sitting as a court of equity shall operate as a supersedeas unless the judge of the circuit court or a justice of the supreme court shall, on an inspection of the record, order and direct a stay of proceedings. No appeal so allowed shall operate as a supersedeas, except on the conditions prescribed by law in cases of appeal from final decrees. No supersedeas on an appeal from any such decision, judgment or decree granting or dissolving an injunction shall have the effect to suspend or modify the decision, judgment or decree appealed from, unless the supreme court or a justice thereof shall make an order for the suspension or modi- fication of the order appealed from during the pendency of the appeal on like terms as to bond and security. (Fla. Gen. St. 1906, § 1909.) § 1066. Supersedeas on appeals from decrees', etc., re- lating to administrators. No appeal from any order, judgment or decree of any court of. chancery, probate or other court in this state, appointing or removing execu- tors, administrators or other personal representatives, FLORIDA STATUTES AND EULES 1027 or affirming such order, judgment or decree, shall operate as a supersedeas, or have the effect of placing or keeping the estate of any deceased person in the possession of the party appealing, unless such party enter into bond with two sufficient sureties, to be approved by the judge of the court, payable to the Governor of the state for the bene- fit of all concerned, in a sum at least equal to the value of such estate, conditioned for the payment of all costs and .damages that may accrue to all persons whomsoever by reason of such appeal if the same should not be prosecuted with success. (Fla. Gen. St. 1906, § 1910.) § 1067. Notice of entry of appeals. Notice of entry of all appeals in chancery causes, whether taken in open court or in vacation, shall be filed with the clerk of the court whose order or decree is to be reviewed, and by such clerk shall be forthwith entered in the chancery order book ; and no other or further notice of such appeal shall be required to be given or served in order to give to the supreme court complete jurisdiction over the per- son of the appellee, but the record of such entry in the chancery order book shall be taken and held to be suffi- cient notice to the appellee of the taking of said appeal and of the pendency thereof in the supreme court. (Fla. Gen. St. 1906, § 1911.) § 1068. Application to appeals in chancery, of certain provisions relating to writs of error. The provisions of law relating to writs of error governing the filing of transcripts of record, and proceedings thereon, and filing assignments of errors, the duty of appellate court in examining the record and giving judgment, in causing execution of its decrees and in quashing writs of error, shall be applicable to appeals in chancery. (Fla. Gen. St. 1906, § 1912.) ApTicLii 11. Injunctions § 1069, Injunction to issue only after bill filed. No writ of injunction shall be granted until a bill praying therefor shall have been filed, except in the special cases in which, and for the special causes for which, such writs 1028 EQUITY PRACTICE are authorized in tlie courts of the United States exercis- ing equity jurisdiction. (Fla. Gen. St. 1906, § 1913.) §1070. Injunctions to stay proceedings at law. No writ of injunction to stay proceedings at law shall issue except on motion to the court, and reasonable notice of such motion previously served on the opposite party or his attorney, nor unless the party applying therefor shall have previously paid all costs of the suit at law, and shall have entered into a bond with two or more sufficient sureties in a sum to be fixed by the court, payable to the plaintiff in the action at law, and conditioned, if the application be to stay the proceedings before verdict or inquest of damages, to pay to the plaintiff all damages, losses, expenses, and charges which he may have sus- tained or have been put to by reason of the issuing of the said injunction if the injunction shall be dissolved, or if the bill upon which it was granted be dismissed ; or if the application be to stay the proceedings after verdict or inquest of damages, to pay the debt, interest enjoined and such damages as may be occasioned by the wrongful issuing of said injunction, if the said injunction shall be dissolved, or the bill upon which it may be granted be dismissed. (Fla. Gen. St. 1906, § 1914.) § 1071. Injunction without bond. In all suits in equity where summary process by injunction or otherwise shall be prayed, and the bill justifies such process, and affidavit shall be made of the truth of the statements of the bill, and that the complainant is unable to give bond of in- demnity or other security, .the chancellor shall receive from both parties evidence of the truth or falsity of the statements of the bill and of the accompanying affidavit, and if they shall appear to be true, shall grant such process without requiring such security. (Fla. Gen. St. 1906, § 1915.) § 1072. Evidence upon application for, or to dissolve injunctions. Upon an application for an injunction or other summary order, or upon motion to dissolve the same, either party thereto shall have the right to intro- duce evidence, and the chancellor shall grant, dissolve or continue the order, or may require security, according to FLORIDA STATUTES AND RULES 1029 the weight of the evidence. (Fla. Gen. St. 1906, § 1916.) § 1073. Motion to dissolve injunction. The defendant, after injunction granted, may either before or after answer filed, on due notice being previously given to the opposite party or his solicitor, move the court for the dissolution of any injunction which may have been granted. (Fla. Gen. St. 1906, § 1917.) Injunctions in Paeticulab Cases § 1074. Against levy of execution issued against an- other than the complainant. Whenever real estate in this state belonging to any person, natural or artificial, shall be levied upon, or attempted to be sold under any writ of fieri facias or other legal process issued upon any judgment, decree or order against another person, or shall be attempted to be sold as the property of another person, the courts of equity of this state shall have jurisdiction to restrain and enjoin such attempted sale on the applica- tion of such owner in possession of such real estate, or the legal representatives of such owner. (Fla. Gen. St. 1906, § 1918.) § 1075. Against destruction of timber. Courts of chan- cery shall entertain suits by any person claiming to own any timbered lands in this state to enjoin trespass on such lands by the cutting of trees thereon, or the removing of logs therefrom, or by boxing or scraping the said trees for the purpose of making turpentine, or by the removal of turpentine therefrom ; and in such suits the said courts shall cause an account to be taken of the damage to the complainant from any of the said trespasses, before or after the institution of the suit, and decree the payment of the amounts shown to be due upon such accounting by the defendant or defendants, and may appoint receivers of logs or timber claimed to have been cut from said lands. ■ (Fla. Gen. St. 1906, § 1919.) § 1076. Injunction against removal of mortgaged per- sonal property. Upon application of the mortgagee or his assigns, the removal from the state of any personal property mortgaged to secure a debt not matured at the time of the application, may be enjoined by any court of 1030 EQUITY PRACTICE chancery within the territorial jurisdiction of which such property may be. (Fla. Gen. St. 1906, § 1920.) Article 12. Writ of Nb Exeat § 1077. When to issiie. No writ of ne exeat shall be granted until a bill sworn or supported by afiSdavit be filed, praying for such writ, except in the special cases and for the special causes in which said writs are authorized by the practice of the courts of the United States exercising equity jurisdiction. It may issue in any ease where the court of chancery shall have concur- rent jurisdiction with a court of common law, and where the issuance shall seem to the chancellor just. (Fla. Gen. St. 1906, § 1921.) . § 1078. Chancellor to fix penalty of bond. In grant- ing such writ the chancellor shall fix the penalty and conditions of the bond to be required of the complainant, to defendant, with two good and sufficient sureties to be approved by the court, and no such writ shall issue until such bond shall be given by the complainant. (Fla. Gen. St. 1906, § 1922.) § 1079. Absence of defendant permitted. An absence of the defendant from the state, from which he shall return before a personal appearance shall be necessary by any decree of the court, or before it shall be necessary to perform any order of the court, shall not be considered a breach of the condition of the bond. (Fla. Gen. St. 1906, § 1923.) § 1080. Surrender of defendant by bail. The sureties (or either of them) of the defendant shall have power personally or by attorney, at any time before the bond shall be forfeited, to take the body of the principal and surrender him in open court, or deliver him to the ministerial officer of the court in which the suit is pend- ing, who shall detain said principal as in cases of the sur- render of the principal by special bail; and at the time of such delivery to the aforesaid officer, the surety shall take a receipt for the body and file it with the clerk of the court, either of which, if done before the bond is for- anjHlDA STATUTES AND RULES 1031 feited, shall discharge the sureties from their undertak- ing. (Fla. Gen. St. 1906, § 1924.) Akticle 15. Equitable Gaenishment § 1081. Proceedings prescribed. If any suit shall be commenced for relief in equity in any court against any defendant residing out of this state, and any other de- fendant within the same having in his hands effects of, or being otherwise indebted to, such absent defendant, and the appearance of such absentee be not entered and security given to the satisfaction of the court for per- forming the decree, upon affidavit that such defendant is out of the state, or that up'on inquiry at his usual place of abode he cannot be found so as to be served with process, the court may make an order and require surety, if it shall appear necessary, to restrain the defendant in this state from paying or conveying away, or secreting the debts by him owing to, or the effects in his hands, of such absent defendants, or to restrain the absent defend- ant from conveying away or secreting or removing the property in litigation, or make an order sequestrating the property which may be necessary to secure the plaintiff if he finally succeeds ; and may order "such debts to be paid, and effects to be delivered up to said plaintiff, upon his giving sufficient security for the return thereof. Service upon the absent defendant shall be had in the manner provided by law, and if the defendant does not appear and answer, plead or demur to the bill, decrees pro confesso and final decree may be entered as in other cases; and the court shall make an order requiring the complainant to give security, to be approved by the court or by its clerk, for abiding such future orders as may be made for restoring the estate or effects to the absent defendant upon his appearance and answering the bill; and if the complainant shall refuse to give or not be able to procure such security, the effects shall remain under the direction of the court, in the hands of a receiver, or otherwise, for so long a time, and shall be finally disposed of in such manner, as to the court shall seem fit. (Fla. Gen. St. 1906, § 1948.) 1032 EQUITY PRACTICE Abticle 2. Lien of Judgments § 1082. In counties where rendered. Every judgment at law (and decree in equity) which shall be entered in any of the circuit courts of this state shall create a lien and be binding upon the real estate of the defendant in the county where rendered. (Fla. Qen. St. 1906, § 1600.) § 1083, In other counties. Such judgments and decrees shall create a lien upon the real estate of the defendant situated in any other county than the one in which the same shall have been rendered, when a certified transcript of the said judgment or decree shall have been recorded in the county in which the real estate so sought to be bound may be situated. (Fla. Gen. St. 1906, § 1601.) Unknown Defendants § 1084. Process by publication. Section 1. If any com- plainant (or his agent or attorney) in a suit in chancery for the partition of, or for the quieting of title to, or clearing a cloud from, or for the enforcement of a mort- gage, or lien against, or for specific performance of a con- tract to convey, or exchange real estate, or for the administration of the estate of a decedent or other suit in chancery relating to or affecting the title to real estate, shall state in a sworn bill that he believes that there is a person or are persons interested in the property in- volved in such suit, whose name or names are unknown to him, and shall pray for relief against them in such bill, he shall be entitled to process by publication to bring in such persons as parties defendant to such suit. If the said unknown persons shall be known to or believed by the complainant to be heirs, devisees, grantees, or other claimants under a person deceased whose name is known to the complainant, the complainant shall-state the name of such person in the bill, but the failure to so state shall not invalidate any decree obtained by complainant in such suit. If there be any person or persons whose names are known to the complainant interested in the said property, such person or persons shall be made a party or parties defendant to the bill; but if there be no person FLORIDA STATUTES AND RULES 1033 or persons so known, the bill may be instituted and main- tained wholly against the persons unknown. (Fla. Laws 1905, c. 5393, as amended by Laws 1911, c. 6227.) § 1085. Order and publication. Sec. 2. It shall be the duty of the clerk of the court of the county in which such bill may be filed, to make upon demand of the com- plainant, ^n order requiring such persons to appear to the bill on a rule day not less than twelve weeks from the making of the order and to publish such order once a week for twelve weeks, in a newspaper in said county. Such order shall designate the unknown defendants as ' ' all parties claiming an interest ' ' in the property to which relief is sought, which property shall be shortly but fully described in the order. If the name of any deceased known person shall be stated in the bill, the order of pub- lication shall describe the unknown defendants as "all parties claiming interests under (the deceased person) or otherwise" in the property which shall be described as aforesaid. (Fla. Laws, 1905, c. 5393.) § 1086. Decree pro confesso. Sec. 3. Decrees 'pro con- fesso can be entered as in other cases of service by pub- lication. Upon the entry of such decree the judge shall make an order appointing an attorney, learned in the law, as guardian for absent unknown defendants. Such guardian shall make and file an oath that he will faithfully discharge the duties of his office; and he shall file such answer and make such defense as he may deem proper to protect the substantial interests, if any, of said absent defendants. His fees shall be fixed by the court appointing him, and shall be paid by the complainant and taxed as costs in the case. Final decrees entered against unknown parties in interest shall be conclusive on such parties and persons deriving through them, from the date of rendition, unless a rehearing shall be applied for within one year thereafter. But if the complainant shall within six months of such decree serve a copy of such decree on any person interested who shall become known to him, by producing sworn proof of the delivery of a copy of such decree to such person or persons, a rehear- ing shall not be had unless applied for within six months 1034 EQUITY PRACTICE from the date of sucli service. Decrees for the sale of property in the administration of estates of decedents shall not be reheard. (Fla. Laws 1905, c. 5393, as amended by Laws 1911, c. 6227.) § 1087. Rehearing. Sec. 4. If any defendant, against whom a decree has been rendered on publication only, as provided in this act, shall at any time before the expiration of the time allowed for a rehearing, appear and petition the court for a rehearing thereof, and give bond in an amount and with conditions to be fixed by the judge, with sureties to be approved by the clerk, he shall be permitted to defend the bill as if he had been per- sonally served with process. And the court may stay all proceedings upon the original decree, pending such defense, and if the decree has been executed, may, at the final hearing, decree restitution. But the title to property sold under the original decree and purchased by a bona fide purchaser for value, shall not be affected by any such rehearing. The defendant applying for such rehearing, shall give reasonable notice in writing to the complainant of such application. (Fla. Laws 1905, c. 5393.) § 1088. Service by process on non-residents in suits for specific performance of contracts to convey. Section 1. That in all cases brought in the chancery side of the courts of this state, for the specific performance of con- tracts to convey or exchange real estate, the complainant or complainants may, where the defendant or defendants are non-residents of the state of Florida, obtain service on such non-resident defendant or defendants, by publica- tion, as is provided for in other chancery causes. Section 2. That decrees pro confesso can be entered as in other cases of service by publication. Final decrees entered upon decrees pro confesso, when there has been no appearance by such non-resident defendant or de- fendants in interest shall be conclusive on such parties and persons deriving through them from the date of rendition unless appealed from in due course of law, and for the purpose of carrying out final decrees when such decrees shall provide for the making and executing FLORIDA STATUTES AND RULES 1035 of deeds and other conveyances, the court shall, in its decree, appoint a special master to make, execute and deliver such deeds, and conveyances as are provided for by said decree. (Fla. Laws 1909, c. 5913, p. 57.) Aeticle 14. Paetition of Real Pbopeety § 1089. To be by bill in chancery. Suits for a partition of real estate shall in all cases be by bill in chancery, and all proceedings, except when herein otherwise provided, shall be as in other cases in chancery. (Fla. Gen. St. 1906, § 1939.) § 1090. Locality of action. Suits for partition shall be brought in the county where the lands which are the subject matter of the suit lie ; but if the lands lie in more than one county, the suit may be brought in either county, in which case the decrees shall be recorded in every county in which any part of the lands lie. (Fla. Gen. St. 1906, § 1940.) § 1091. Parties to the suit. Such bill may be filed by any one or more of several joint tenants, tenants in com- mon or co-parceners, against their co-tenants, co-parcen- ers or others interested in the lands to be divided, (Fla. Gen. St. 1906, § 1941.) § 1092. Form and contents of the bill. Such bill must be sworn to by one or more of the complainants and shall set forth a description of the lands or premises of which partition is prayed, by metes and bounds or other suffi- cient description, and shall state 'according to the best of the knowledge and belief of the complainants the names and places of residence of the several owners, joint tenants, tenants in common or co-parceners, or other persons interested in said lands or real estate, the quantity or proportionate share held by each, and such other matters, if any, as may be necessary to enable the court to adjudicate fully upon the rights and interests of the parties. But if the names, residence, quantity of interest or proportionate share of any of the owners or claimants of such lands are unknown to the complain- ants, then it shall be so stated in such bill, and such suit may proceed in the same manner as though such un- Whitehouse E. P. Vol. 11—10 1036 EQUITY PRACTICE known persons or defendants were named in the bill. (Fla. Gen. St. 1906, § 1942.) § 1093. Decree of partition. Upon application for entry of a final decree, made after a decree pro confesso, or after litigation of the cause, the court shall proceed to ascertain and adjudicate the rights and interests of the parties, either by a reference to a master, by a hearing upon the pleadings and proof, or in such other way or manner as may be most convenient and according to the ordinary rules and practice of the court; and shall also decree that partition be made if it shall appear that the parties are entitled to the same. When the rights and interests or proportions of the complainants are clearly established to the satisfaction of the court, or are undis- puted, the court may, by decree, order partition to be made, and the shares, proportions or interests of the com- plainant or complainants, and such of the defendants as have established and satisfactorily proved their respective shares, interests or proportions, to be set off and allotted to them, leaving for future adjustment (by further pro- ceedings in the same cause) the rights, shares and in- terests of the other defendants. (Fla. Gen. St. 1906, § 1943.) § 1094. Commissioners to make partition. — 1. Ap- pointment and Eemoval. Upon a decree of partition be- ing made, the court shall appoint three suitable persons to act as commissioners in making the partition decree, who shall be selected by the court, unless agreed upon by the parties. They may be removed by the court, upon good cause to be shown, and others appointed in their place. 2. Powers, Duties, Compensation and Report of Com- missioners. Such commissioners shall, before entering upon their duties, be sworn by the clerk of the court, or by any judicial officer, faithfully and impartially to exe- cute the trust imposed in them-, shall have power to em- ploy a surveyor or surveyors, if necessary, for the pur- pose of making such partition; shall be allowed such sum as may be deemed reasonable by the court for their serv- ices, not exceeding, however, three dollars per day for FLORIDA STATUTES AND RULES 1037 every day actually employed; shall proceed to make partition of the premises in question according to the order of the court, and having made such partition, shall report the same in writing to the court without delay. 3. Exceptions to Report and Final Decree. Any party in interest may file objections or exceptions to the report of the commissioners within ten days after he shall be notified of the filing of the same; or if he is ab- sent from the state so that notice cannot be given, within thirty days after the same is filed; if no objections or exceptions are filed as aforesaid, or if the court is satis- fied, upon the hearing of any such objections or excep- tions, that they are not well founded, then the report shall be confirmed, and a final decree shall be entered up, which shall accordingly vest in the respective parties the title to the several parcels or portions of the premises allotted to them respectively, and shall give to each of them the possession of and quiet title to their respective shares as against the other parties to the suit, or those claim- ing through or under them. (Fla. Gen. St. 1906, § 1944.) § 1095. Sale of non-divisible real estate. — 1. The Order of Sale. If the commissioners shall report to the court that the lands, tenements or hereditaments of which partition shall have been directed are so situated that a partition thereof cannot be made without great prejudice to the owners of the same, and if the court shall be satisfied that such report is just and correct, the court may thereupon, upon application of either party, upon notice to the others before the court, if said others be in the state, order the premises so situated to be sold at public auction to the highest bidder, by and under the direction of the said commissioners, and the moneys arising from such sale to be paid into the court, to be divided among the respective parties interested in pro- portion to their shares or interest. 2. Conditions of Sale. For good cause to be shown, the court may order such sale to be made upon a reason- able credit for part or all of the purchase money, but in all cases at least 1/3 of the purchase money shall be paid down, unless all parties consent to a credit for a 1038 EQUITY PRACTICE whole; and in all cases the purchase money not paid down shall be secured by bond and mortgage on the premises, and such other additional security as the court shall direct. 3, Confirmation of Sale and Conveyance. Such sale must have been reported to the court, and the money arising therefrom paid into the court, and the sale ap- proved by the court and a conveyance ordered, before any conveyance in pursuance of such sale shall be made by the commissioners. (Fla. Gen. St. 1906, § 1945.) § 1096. Costs of partition and taxes. Every party in interest, whether complainant or respondent, shall, by decree of the court, be bound to pay a share of the costs and charges, including attorney's fees of complainants' solicitor, arising from the suit for the partition or sale of the land, in proportion to his interest; and such decree shall be binding on all his goods and chattels, lands or tenements; and in case of sale the court may order the same to be paid or retained out of the moneys arising from such sale and due or belonging to the parties who ought to pay the same. All taxes, state, county and municipal, due thereon at the time of such sale shall be paid out of the purchase money. (Fla. Gen. St. 1906, § 1946.) Paktition of Personal Peopeety § 1097. Provisions of law applicable to. All the pro- visions of law applicable to partition and sale for par- tition of real estate, and the proceedings therefor, shall be applicable to the partition and sale for partition of personal property, and the proceedings therefor, as far as the nature of the property will permit. (Fla. Gen. St. 1906, § 1947.) Aeticle 16. Cloud on Title §1098. Quieting title, removing clouds. A bill in equity may be brought and prosecuted to a final decree by any person or corporation, whether in actual posses- sion or not, claiming title, legal or equitable, to real es- tate against any person or corporation not in actual pos- FLORIDA STATUTES AND RULES 1039 session, wBo claims an adverse estate or interest, legal or equitable, therein, for the purpose of determining such estate or interest and quieting or removing clouds from the title to such real estate. It shall be no bar to the granting of relief to the com- plainant in such cases that the title has not been litigated at law or that there may be only one litigant to each side of the controversy, or that the adverse claim, estate or interest against which such bill is brought is void upon its face, or, though not void on its face, require evidence, extrinsic of itself, to establish its validity. (Fla. Gen. St. 1906, § 1950.) Article 20. Ceeditoes' Bills §1099. Creditors' bills. Creditors' bills may be filed in the courts of this state, having chancery jurisdiction, before the claims of indebtedness of the persons filing the same shall have been reduced to judgment, but no such bill shall be entertained by such court, unless the com- plainants therein shall have first instituted suits in the proper courts at law for the collection of their claims; and no final decree shall be entered upon such creditors' bill until such claims shall have been reduced to judg- ment. (Fla. Gen. St. 1906, § 1961.) EULES OF EQUITY PRACTICE IN THE CIRCUIT COURTS I. Genebal Rules, Dockets, Okdeb Books, Motions, Obdees, Notice § 1100. Docket — Call — Dismissal and reinstatement of causes. The clerk shall keep a general docket for chan- cery causes, in which all cases shall be entered upon the filing of the bill. This docket shall contain memorandum entries showing the progress of each case. In the bench and bar docket prepared for each term, he shall enter all cases in equity \vhich are undisposed of. After the dis- charge of the jury it shall be the duty of the judge of the circuit court at each term to call and sound the chan- cery docket. Any cause not disposed of within three 1040 EQUITY PRACTICE years from the filing of the bill shall be dismissed by the court at the cost of the plaintiff unless otherwise di- rected for cause shown. Upon application and notice within a reasonable time, not exceeding one year, the cause may be reinstated upon the docket, in the discre- tion of the court. (Fla. Circ. Ct., Eule 1.) § 1101. Proceedings in vacation — Clerk's office. The circuit courts as courts of equity, are by law deemed al- ways open, and may dispose of all motions and grant all orders and render all decrees, whether interlocutory or final, either in term time or vacation. The clerk's office shall be open at all times for the purpose of receiving, en- tering, entertaining and disposing of all motions, rules, orders and other proceedings, which are grantable of course and applied for, or had by the parties or their solicitors, in all causes pending in equity, in pursuance of the rules hereby prescribed. (Fla. Circ. Ct., Eule 2.) §1102. Order book — Entries — Notice of filing of papers. All motions, rules, orders, decrees and other proceedings made and decreed at chambers, or on rule day, at the clerk's office, whether special or of course, shall be entered by the clerk in an order book, to be kept at the clerk's office, on the day when they are made and directed; which book shall be open at all office hours to the free inspection of the parties in any suit in equity, and their solicitors; and except in cases where personal or other notice is specially required or directed, such entry in the order book shall be deemed sufficient notice to the parties and their solicitors, without further serv- ice thereof, of all orders, rules, acts, notices and other proceedings, entered in such order book, touching any and all the matters in the suits to and in which they are parties and solicitors. No notice of the filing of any answer, plea, demurrer, replication, or other paper shall be necessary to be served upon the opposite, party or his solicitor, unless such notice is directed by special order of the judge ; and notice to the solicitors shall be deemed notice to the parties for whom they appear and whom they represent, in all cases where personal notice on the parties is not otherwise specially required. When the FLORIDA STATUTES AND RULES 1041 solicitors for all tlie parties in a suit reside in or near the same town or city, the judges of the circuit courts may by rule, abridge the time for notice of rules, orders, or other proceedings, not requiring personal service on the parties, in their discretion. (Fla. Circ. Ct., Eule 3.) § 1103. Motions and applications — Powers of clerk. All motions and applications in the clerk's office for the issuing of mesne process and final process to enforce and execute decrees, for filing bills, answers, pleas, demurrers and other pleadings; for making amendments to bills and answers; for taking bills pro confesso; for filing ex- ceptions, and for other proceedings in the clerk's office, which do not by law or by the rules of court require an allowance or order of the court or judge, shall be deemed motions and applications grantable of course by the clerk of the court. But the same may be suspended or altered or rescinded by the judge or court upon special cause shown. (Fla. Circ. Ct., Eule 4.) § 1104. Motions — Time of making- — ^Notice. All mo- tions for rules or orders and other proceedings which may not be grantable of course, may be made at any time be- fore the judge of the court, due notice being given to the adverse party, and if the adverse party or his solicitor shall not appear on the day named in the notice or order of the judge fixing the day, or shall not show good cause against the same, the motion may be heard by the judge and granted or refused, as the right of the matter may seem to him to require. (Fla. Circ. Ct., Eule 5.) II. Pkocess § 1105. Mesne process. The process of subpoena shall constitute the proper mesne process in all suits in equity, in the first instance, to require the defendant to appear and answer the exigency of the bill, and unless otherwise provided in these rules, or specially grdered by the cir- cuit court a writ of attachment, and if the defendant can- not be found, a writ of sequestration, or a writ of assist- ance to enforce a delivery of possession, as the case may require, shall be the proper process to issue for the pur- 1042 EQUITY PRACTICE pose of compelling obedience to any interlocutory or final order or decree of the court. (Fla. Circ. Ct., Rule 6.) § 1106. Final process — Enforcement of decree. Final process to execute any decree may, if the decree be solely for the payment of money, be by writ of execution, in the form used in the circuit court in suits at common law. If the decree be for the performance of any specific act, as for example, for the execution of a conveyance of land, or the delivery up of deeds or other documents, the de- cree shall, in all cases, prescribe the time within which the acts shall be done, of which the defendant shall be bound without further service to take notice; and upon afiidavit of the plaintiff, filed in the clerk's office, that the same has not been complied with within the pre- scribed time, the clerk shall issue a writ of attachment against the delinquent party, from which, if attached thereon, he shall not be discharged, unless upon a full compliance with the decree and the payment of all costs, or upon a special order of the court, or of the judge thereof, upon motion and affidavit, enlarging the time for the performance thereof. If the delinquent party cannot be found, a writ of sequestration shall issue against his estate upon the return of non est inventus, to compel obedience to the decree. (Fla. Circ. Ct., Eule 7.) § 1107. Writ of assistance. When any decree or order is for the delivery of possession, upon proof made by affidavit of a demand and a refusal to obey the decree or order, the party prosecuting the same shall be entitled to a writ of assistance from the clerk of the court. (Fla. Circ. Ct., Eule 8.) § 1108. Enforcement of order in favor of third person. Every person, not being a party in any cause, who has obtained an order, or in whose favor an order shall have been made, shall be enabled to enforce obedience to such order by the same process as if he were a party to the cause; and every person, not being a party in any cause, against whom obedience to any order of the court may be enforced, shall be liable to the same process for enforcing obedience to such order, as if he were a party in the cause. (Fla. Circ. Ct., Eule 9.) FLORIDA STATUTES AND RULES I0i3 III. Peocess, How Issued, Sebved and Eetukned § 1109. Issuance of process — Time. No process of subpoena shall be issued from tbe clerk 's office in any suit in equity until tbe bill is filed in the office. (Fla. Circ. Ct., Eule 10.) § 1109a. Subpoena— Issue — When returnable. When- ever a bill is filed, the clerk shall issue a subpoena thereon, as of course, upon the application of the plaintiff, which shall be made returnable to the next rule day thereafter; unless there shall not be ten days interv^ening between the day of the issuing of the same and the next rule day, in which case the same shall be made returnable to the rule day in the next succeeding month. Where there is more than one defendant, the clerk shall issue but one writ of subpoena against all of the defendants, unless other- wise directed by the complainant or his solicitor. (Fla. Circ. Ct., Eule 11.) § 1110. Service of process — On whom made. The ser- vice of all subpoenas shall be by delivery of a copy there- of to such defendant, showing the original at the time of such delivery, or to the wife of such defendant, or any person above the age of fifteen years, residing in his or her family at the time of such delivery, at the dwelling house or usual place of abode of such defendant. On the back of the copy of the subpoena such indorsements shall be made as are required by law and the statements and returns upon the original subpoena shall be as prescribed by law. (Fla. Circ. Ct., Eule 12.) § 1111. Alias process. Whenever any subpoena shall be returned not executed as to any defendant, the plain- tiff shall be entitled to another subpoena, toties quoties, against such defendant, if he shall require it, until due service is made. (Fla. Circ. Ct., Eule 13.) § 1112. Service of process — By whom. The service of all process, mesne, and final, shall be by the proper sheriff or his deputy, or by some other person specially ap- pointed by the court for that purpose, and not otherwise; in the latter case the person serving the process shall 1044 EQUITY PRACTICE make affidavit thereof in conformity to law. (Fla. Circ. Ct., Eule 14.) IV. Appeaeance § 1113. Appearance — Time for. The appearance day of the defendant shall be the rule day to which the sub- poena is made returnable; provided he has been served with the process ten days before that day, otherwise his appearance day shall be the next rule day succeeding the rule day when the process is returnable. (Fla. Circ. Ct., Eule 15.) § 1114. Entry of appearance. The appearance of the defendant, either personally or by his solicitor, shall be entered in the order book and docket of chancery causes on the day thereof by the clerk. (Fla. Circ. Ct., Eule 16.) V. Frame of Bills § 1115. Introduction. Every bill in the introductory part thereof shall contain the names and places of abode of all the parties, plaintiffs, and defendants, by and against whom the bill is brought. The form in sub- stance shall be as follows: To the Judge of the Circuit Court of Judicial Circuit of the State of Florida, in and for County, in Chancery sitting: A. B., of , brings this, his bill, against C. D., of , and E. F., of And there- upon your orator complains and says, that, etc. (Fla. Circ. Ct., Eule 17.) § 1116. Averments which may be omitted. The plain- tiff, in his bill, shall be at liberty to omit, at his option, the part, which is usually called the common confederacy clause of the bill, averring a confederacy between the defendants to injure or defraud the plaintiff ; also what is commonly called the charging part of the bill, setting forth the matters or excuses, which the defendant is sup- posed to intend to set up by way of defence to the bill; also what is commonly called the jurisdiction clause of the bill, that the acts complained of are contrary to equity, and that the defendant is without any remedy at FLOEIDA STATUTES AND RULES 1045 law; and the bill shall not be demurrable therefor. And the plaintiff may, in the narrative or stating part of his bill, state and avoid, by counter-averments, at his option, any matter or thing which he supposes will be insisted upon by the defendant, by way of defence or excuse to the case made by the plaintiff for relief. (Fla. Circ. Ct., Eule 18.) § 1117. Scandal and impertinence. Every bill shall be expressed in as brief and succinct terms as it reasonably can be, and shall contain no unnecessary recitals of deeds, documents, contracts or other instruments, in haec verba, or any other impertinent matter or any scandalous matter not relevant to the suit. It it does, and if so found by the judge or court on exceptions, the matter shall be ex- punged at the expense of the plaintiff, and he shall pay to the defendant all his costs in the suit up to that time, unless the court or judge shall otherwise order. (Fla. Circ. Ct., Eule 19.) § 1118. Expunging scandalous and impertinent matter. No order shall be made by any judge expunging matter for scandal or impertinence unless exceptions are taken in writing and signed by counsel, describing the par- ticular passages which are considered to be scandalous or impertinent; nor unless the exceptions shall be filed on or before the next rule day, after the process on the bill shall be returnable, or after the answer or pleading is filed. The exceptions shall be taken as abandoned unless the party making them shall, on or before the next rule day, set the same down for hearing. Nothing herein shall prevent the court from referring the matter to a master as heretofore authorized. (Fla. Circ. Ct., Eule 20.) VI. Inteekogatoeies § 1119. Special interrogatories. It shall not be neces- sary to interrogate a defendant specially and particularly upon any statement in the bill, unless the complainant desires to do so to obtain a discovery. (Fla. Circ. Ct., Eule 21.) § 1120. Prayer for discovery. Instead of the words of the bill, now in use preceding the interrogating part 1046 EQUITY PRACTICE thereof, and beginning with the words, "To the end, therefore," there shall hereafter be used words in the form or to the effect following: "To the end, therefore, that the said defendants may, if they can, show why your orator should not have the relief hereby prayed, and may, upon their several and respective corporal oaths, and according to the best and utmost of their several and respective knowledge, remembrance, information and belief, full, true, direct and perfect answer make to each of the several interrogatories hereinafter numbered and set forth, as by the note hereunder written, they are respectively required to answer, that is to say : "1. Whether, etc. "2. Whether, etc." (Fla. Circ. Ct., Eule 22.) § 1121. Specifying interrogatories. The interroga- tories which each defendant is required to answer shall be specified in a note at the foot of the bill, in the form or to the effect following, that is to say: ' ' The defendant, A. B., is required to answer the interrogatories numbered respectively, 1, 2, 3," etc., and the office copy of the bill taken by each defendant shall not contain any interroga- tories except those which such defendant is so required to answer, unless such defendant shall require to be fur- nished with a copy of the whole bill. (Fla. Circ. Ct., Eule 23.) § 1122, Note specifying interrogatories as part of bill. The note at the foot of the bill specifying the interroga- tories which each defendant is required to answer, shall be considered and treated as part of the bill, and the addition of any such note to the bill, or any alteration in or addition to such note after the bill is filed, shall be considered and treated as an amendment of the bill. (Fla. Circ. Ct., Eule 24.) VII. Peayee of the Bill § 1123. General and special relief. The prayer of the bill shall ask the special relief to which the plaintiff sup- poses himself entitled, and also shall contain a prayer for general relief; and if an injunction or a writ of ne exeat regno, or any other special order pending the suit, is re- FLORIDA STATUTES AND RULES 1047 quired, it shall also be specially asked for. (Fla. Circ. Ct., Eule 25.) § 1124. Prayer for process. The prayer for process of subpoena in the bill shall contain the names of all the defendants named in the introductory part of the bill, and if any of them are known to be infants under age, or otherwise under guardianship, shall state the fact, so that the court may take order thereon as justice may require, upon the return of the process. If an injunction, or a writ of ne exeat regno, or any other special order pending the suit, is asked for in the prayer for relief, that shall be sufficient without repeating the same in the prayer for process. (Fla. Circ. Ct., Eule 26.) § 1125. Signature. Every bill shall contain the signa- ture of counsel annexed to it, which shall be considered as an affirmation on his part that upon the instructions given to him and the case laid before him, there is good ground for the suit in the manner in which it is framed. (Fla. Circ. Ct., Rule 27.) VIII. Cross Bill § 1126. Answer to cross bill. Where a defendant in equity files a cross bill for discovery only against the plaintiff in the original bill, the defendant to the original bill shall first answer thereto before the original plain- tiff shall be" compelled to answer the cross bill. The answer of the original plaintiff to such cross bill may be read and used by the party filing the cross bill, at the hearing, in the same manner and under the same restric- tions as the answer praying relief may now be read and used. (Fla. Circ. Ct., Rule 28.) IX. Paeties § 1127. Omitting parties defendant — When allowed. Where the parties on either side are very numerous, and cannot, without manifest inconvenience and oppressive delays in the suit, be all brought before it, the court, in its discretion, may dispense with making all of them parties, and may proceed in the suit, having sufficient parties before it to represent all the adverse interests 1048 EQUITY PRACTICE of the plaintiffs and the defendants in the suit properly before it; but in such cases the decree shall be without prejudice to the rights and claims of all the absent parties. (Fla. Circ. Ct., Rule 29.) § 1128. Trustees as parties. In all suits concerning real estate which is vested in trustees by devise, and such trustees are competent to sell and give discharges for the proceeds of the sale, and for the rents and profits of the estate, such trustees shall represent the persons bene- ficially interested in the estate or the proceeds, or the rents and profits, in the same manner and to the same extent as the executors or administrators in suits con- cerning personal estate represent the persons beneficially interested in such personal estate, and in such cases it shall not be necessary to make the persons beneficially in- terested in such real estate, or rents and profits, parties to the suit; but the court maiy, upon consideration of the matter on the hearing, if it shall so think fit, order such persons to be made parties. (Fla. Circ. Ct., Eule 30.) § 1129. Heirs as parties. In suits to execute the trusts of a will, it shall not be necessary to make the heir at law a party, but the plaintiff shall be at liberty to make the heir at law a party, where he desires to have the will established against him. (Fla. Circ. Ct., Eule 31.) § 1130. Joinder of parties. In all cases in which the plaintiff has a joint and several demand against persons, either as principals or sureties, it shall not be necessary to bring before the court as parties to a suit concerning such demand, all the persons liable thereto, but the plain- tiff may proceed against one or more of the persons severally liable. (Fla. Circ. Ct., Eule 32.) § 1131. Objection for want of parties. When the de- fendant shall by his answer suggest that the bill is defective for want of parties, the plaintiff -shall be at liberty, within fourteen days after answer filed, to set down the cause for argument upon that objection only, and the purpose for which the same is so set down shall be notified by an entry, to be made in the clerk's order book, in the form or to the effect following; that is to say: "Set down upon the defendant's objection for want of FLORIDA STATUTES AND RULES 1049 parties. ' ' And where the plaintiff shall not so set down his cause and have his objection heard, but shall proceed therewith to a hearing, notwithstanding an objection for want of parties taken by the answer, he shall not, at the hearing of the cause, if the defendants' objection shall then be allowed, be entitled, as of course, to an order for liberty to amend his bill by adding parties. But the court, if it thinks fit, shall be at liberty to dismiss the bill. (Fla. Circ. Ct., Eule 33.) § 1132. Saving rights of absent parties. If a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties not having by plea or answer taken the objection, and therein specified by name or description the parties to whom the objection applies, the court, if it shall think fit, shall be at liberty to make a decree saving the rights of the absent parties. . (Fla. Circ. Ct., Eule 34.) § 1133. When answer optional. Where no account, payment, conveyance or other direct relief is sought against a party to a suit not being an infant, the party, upon service of the subpoena upon him, need not appear and answer the bill unless the plaintiff specially requires him so to do by the prayer of his. bill; but he may appear and answer at his option; and if he does not appear and answer at his option, he shall be bound by all the pro- ceedings in the cause. If the plaintiff shall require him to appear and answer, he shall be entitled to the costs of all the proceedings against him, unless the court shall otherwise direct. (Fla. Circ. Ct., Eule 35.) X. GuAEDIAN AND PkOCHEIN AmI § 1134. Appointment — Suits by. Gruardian ad litem to defend a suit may be appointed by the court or judge for infants or other persons who are under guardianship, or otherwise incapable to sue for themselves. All infants and other persons so incapable may sue by their guardians, if any, or by their prochein ami, subject, how- ever, to such orders as the court may direct for -the pro- tection of infants and other persons. (Fla. Circ. Ct., Eule 36.) 1050 EQUITY PRACTICE XI. Revivor and Supplemental- Bills §1135. Revivor against representatives. In all cases where the plaintiffs have died, their legal representatives may, upon motion at any time and upon filing a duly authenticated copy of the letters testamentary or of administration and notice thereof to the defendant, be made parties, and the cause shall proceed as though the plaintiff had not died, or the defendant may obtain an order reviving the cause by motion and notice thereof to the legal representative of the plaintiff, and filing a certi- fied copy of the letters testamentary or of administration as aforesaid, and the cause shall thereupon stand for such 'proceeding or order or decree as may be proper. (Fla. Circ. Ct., Eule 37.) § 1136. Motion to revive by or arjainst personal repre- sentative. In all cases where the defendant in an equity suit shall have died, the cause may be revived against his legal representative upon motion at any time by the plaintiff and upon his filing a duly certified copy of the letters testamentary or of administration granted to the legal representative of the deceased defendant, and notice of such motion to the legal representative to show cause, if any he can, why the cause should not be revived against him, and thereupon the cause shall proceed in the same manner as if the suit had been instituted against such representative or the defendant had not died. Or the legal representative of the deceased defendant may him- self have an order reviving the cause on his motion, and notice thereof to the plaintiff or his solicitor, and upon his filing a certified copy of his letters testamentary or of administration, and the cause shall thereupon stand as if the death of the defendant had not occurred or his representative had been originally sued. (Fla. Circ. Ct., Eule 38.) §1137. Supplemental bills. Whenever any suit in equity shall become defective from any event happening after the filing of the bill (as, for example, by a change of interest in the parties), or for any other reason a supplemental bill, or a bill in the nature of a supplemental FLORIDA STATUTES AND RULES 1051 bill, may be necessary to be filed in the cause, leave to file the same may be granted by the judge at any time, upon proper cause shown, and due notice to the other party; and if leave is granted to file such supplemental bill, the defendant shall demur, plead, or answer thereto on the next succeeding rule day after the supplemental bill is filed in the clerk's office, unless some other time shall be assigned by the judge or court. (Fla. Circ. Ct., Eule 39.) §1138. Repetition in supplemental bill. It shall not be necessary in any supplemental bill to set forth any of the statements in the original suit, unless the special circumstances of the case may require it. (Fla. Circ. Ct., Eule 40.) XII. Amendments op Bills §1139. Amendments — Costs — Service of copies. The plaintiff shall be at liberty, as a matter of course, and without payment of costs, to amend his bill in any matters whatever before any copy is taken out of the clerk's office; but if he amend (as he may do of course) after a copy has been so taken before any answer or plea, or demurrer to the bill, he shall pay to the defendant the costs occasioned thereby, and shall without delay fur- nish him a fair copy of the amendments free of expense, with suitable references to the places where the same are to be inserted. If there be more than one defendant, a copy shall be furnished to each defendant affected thereby. (Ma. Circ. Ct., Eule 41.) § 1140. Amendment after answer, etc. After an answer or plea or demurrer is put in, and before replication, the plaintiff may, upon motion or petition, without notice, obtain an order from the court or judge to amend his bill, on or before the next succeeding rule day, upon pay- ment of costs, or without payment of costs, as the court or judge may, in his discretion, direct. But after replication filed, the plaintiff shall not be permitted to withdraw it and to amend his bill, except upon special order of the judge or court upon motion or petition, after due notice to the other party, and upon proof by affidavit that the Whltehou-se B. P. Vol. II — 11 1052 EQUITY PRACTICE same is not made for the purpose of vexation or delay, or that the matter of the proposed amendment is material and could not, with reasonable diligence, have been sooner introduced into the bill, and upon the plaintiff submitting to such other terms as may be imposed by the judge for speeding the cause. In either case the plaintiff shall serve the defendant with a copy of the amendment allowed to be made. (Fla. Circ. Ct., Eule 42.) § 1141. Failure to file amendments. If the plaintiff, so obtaining any order to amend his bill after answer or plea or demurrer, or after replication, shall not file his amendments, or amended bill, as the case may require, in the clerk 's office on or before the next succeeding rule day, he shall be considered to have abandoned the same, and the cause shall proceed as if no application for any amendment had been made. (Fla. Circ. Ct., Eule 43.) XIII. When Answer, Plea oe Dbmueeee Shall Be Filed — Bills Taken Peo Confesso, and Dbceees Peo Confesso § 1142. Answer — Time for filing — Effect of failure to file in time. It shall be the duty of the defendant, unless the time shall be otherwise enlarged, for cause shown, by the judge or court upon motion for that purpose, to file his plea, demurrer or answer to the bill in the clerk 's office on the rule day next succeeding that of entering his appearance ; in default thereof the plaintiff may, at his election, enter an order (as of course) in the order book, that the bill be taken pro confesso; and thereupon the cause shall be proceeded in ex parte, and the matter of the bill may be decreed by the court at any time, if the same can be done without an answer and is proper to be decreed, or the plaintiff, if he requires any discovery or answer to enable him to obtain a proper decree, shall be entitled to the process of attachment against the defend- ant to compel an answer; and the defendant shall not, when arrested upon such process, be discharged there- from, unless, upon filing his answer, or otherwise com- plying with such order as the court or judge may direct as to pleading to, or fully answering the bill, within a FLORIDA STATUTES AND RULES 1053 period to be fixed by the court or judge, and undertaking to speed the cause. (Fla. Circ. Ct., Eule 44.) § 1143. Decree pro confesso. When the bill is taken pro confesso, the court may proceed to a decree at any time, and such a decree rendered shall be absolute, unless the court shall, within twenty days after rendering the decree, set aside the same, or enlarge the time for filing the answer, upon cause shown upon motion and affidavit of the defendant. And no such motion shall be granted, unless upon the payment of the costs of the plaintiff in the suit up to that time, or such part thereof as the court shall deem reasonable, and unless the defendant shall undertake to file his answer within such time as the court shall direct, and submit to such other terms as the court shall direct, for the purpose of speeding the cause. (Fla. Circ. Ct., Eule 45.) XIV. Injunctions, Eeceivees, &c. § 1144. Notice of motion for injunction. In all cases of applications for injunctions, the judge to whom presented, before granting the same, shall be satisfied that sufficient notice of the application has been given to the party sought to be enjoined and of the time and place when the motion is to be made, and no order for such injunction shall be granted without such notice, unless it is manifest to such judge, from the sworn allega- tions in the bill or the affidavit of the complainant or other competent person, that the injury apprehended will be done if an immediate remedy is not afforded, when he may grant instanter an order restraining the party com- plained of until the hearing or the further order of the court or judge, which restraining order shall have all the force of an injunction until rescinded or modified by the court or judge. (Fla. Circ. Ct., Eule 46.) § 1145. Receiver — Notice of application for — Inventory and account. The provisions of the foregoing rule as to notice shall apply to application for the appointment of receiver or other extraordinary remedy in equity to the extent they may be applicable. Every receiver shall, within twenty days after his appointment, file in the 1054 EQUITY PRACTICE clerk's office a just and true inventory under oath of tlie whole real and personal estate coming under his control or to his possession under his order of appointment. The receiver shall, at the expiration of three months from the date of his appointment and every three months there- after, file in the same office an inventory and account under oath of his trust and of any additional property or effects which he has discovered or which shall have come to his hands since his appointment, and of the amount remaining in his hands or invested, stating the balance due from or to him at the time of rendering his last account, and his receipts and expenditures since that time, in the form of debtor and creditor. Whenever a receiver shall neglect to file the inventory and account above required, the court shall direct a special order to be entered requiring the receiver within not more than twenty days after service of a copy of such order upon him personally, or at his place of residence in case of his absence, to file such inventory and account and to pay out of his own funds the expense of the order and the pro- ceedings thereon, or that an attachment issue against him, and directing the clerk with whom the order may have been entered, to cause a copy of the same to be served on the delinquent and to certify his default to the court, if the terms of the order be not complied with. The court may grant leave to put the bond or recognizance of the receiver in suit against the sureties without notice to the sureties of the application for such leave. (Fla. Circ. Ct.,Eule47.) XV. Demubreks and Pleas § 1146. Demurrer — Certificate and affidavit to support. No demurrer or plea shall be allowed to be filed to any bill unless upon a certificate of counsel that in his opinion it is well founded in point of law, and supported by the affidavit of the defendant, or in case of his absence from the state, of his agent or attorney, that it is not inter- posed for delay; and if a plea, that it is true in point of fact. (Fla. Circ. Ct., Eule 48.) § 1147. Demurrer or plea to part of bill. The defendant " FLORIDA STATUTES AND RULES 1055 may, at any time before the bill is taken as confessed, or afterwards with the leave of the court, demur or plead to the whole bill or to part of it, and he may demur to part, plead to part, and answer as to residue ; but in every case in which the bill specially charges fraud or com- bination, a plea to such part must be accompanied with an answer fortifying the plea, and explicitly denying the fraud and combination, and the facts on which the charge is founded. (Fla. Circ. Ct., Rule 49.) § 1148. Setting down demurrer or plea for argument — Decision on issue of fact. The plaintiff may set down the demurrer or plea to be argued, or he may take issue on the plea. If upon an issue the facts stated in the plea be determined for the defendant, they shall avail him, as far as in law and equity they ought to avail him. (Fla. Circ. Ct., Eule 50.) § 1149. Overruling demurrer or plea — Effect. If upon the hearing any demurrer or plea is overruled, the plain- tiff shall be entitled to the costs in the cause up to that period, unless the court shall be satisfied that the defend- ant had good ground in point of law or fact to interpose the same, and it was not interposed vexatiously or for delay. And upon the overruling of any plea or demurrer, the defendant shall be required to answer the bill, or so much thereof as is covered by the plea or demurrer, by the next succeeding rule day, or at such other period as, consistently with justice and the rights of the defendant, the same can in the judgment of the court be reasonably done; in default whereof, the bill shall be taken against him pro confesso, and the matter thereof proceeded in and decree accordingly. (Fla. Circ. Ct., Eule 51.) § 1150. Costs on demurrer — Amendments. If, upon the hearing, any demurrer or plea shall be allowed, the defendant shall be entitled to his costs. But the court may in its discretion, upon motion of the plaintiff, allow him to amend his bill upon such terms as it shall deem reasonable. (Ma. Circ. Ct., Eule 52.) § 1151. Demurrer not coextensive with bill. No demur- rer or plea shall be held bad and overruled upon argu- ment only because such demurrer or plea shall not cover 1056 EQUITY PRACTICE so much of the bill as it might by law have extended to. (Fla. Circ. Ct., Eule 53.) §1152. Answer extending to matter covered by de- murrer. No demurrer or plea shall be held bad and overruled upon argument only because the answer of the defendant may extend to some part of the same matter as may be covered by such demurrer or plea. (Fla. Circ. Ct., Eule 54.) § 1153. Failure of plaintiff to reply to plea or set down for argument. If the plaintiff shall not reply to any plea, or set down any plea or demurrer for argument, on the rule day, when the same is filed, or by the next succeeding rule day, he shall be deemed to admit the truth and suffi- ciency thereof, and his bill shall be dismissed as of course, unless the court or judge shall allow him further time for the purpose. (Fla. Circ. Ct., Eule 55.) XVI. Answers § 1154. Costs where more than one answer filed. When the same solicitor is employed for two or more defend- ants, and separate answers shall be filed, or other pro- ceedings had by two or more of the defendants separately, costs shall not be allowed for such separate answers, or other proceedings unless a master, upon reference to him, shall certify that such separate answers and other pro- ceedings were necessary or proper, and ought not to have been joined together. (Fla. Circ. Ct., Eule 56.) § 1155. Answer — Contents. The rule that if a defend- ant submits to answer, he shall answer fully to all the matters of the bill, shall no longer apply in cases where he might by plea protect himself from such answer and discovery. And the defendant shall be entitled in all cases by answer to insist upon all matters of defence (not being matters of abatement, or to the character of the parties, or matters of form), in bar of, or to the merits of the bill, of which he may be entitled to avail himself by a plea in bar; and in such answer he shall not be com- pellable to answer any other matters than he would be compellable to answer and discover upon filing a plea in bar, and an answer in support of such plea, touching FLORIDA STATUTES AND RULES 1057 the matters set fortli in the bill, to avoid or repel the bar or defence. Thus, for example, a bona fide purchaser for a valuable consideration, without notice, may set up that defence by way of answer instead of plea, and shall be entitled to the same protection and shall not be com- pellable to make any further answer or discovery of his title than he would be in any answer in support of such plea. (Fla. Circ. Ct., Eule 57.) § 1156. Refusal to answer interrogatories. A defend- ant shall be at liberty by answer to decline answering" any interrogatory or part of an interrogatory from answering which he might have protected himself by demurrer ; and he shall be at liberty so to decline, notwithstanding he shall answer other parts of the bill from which he might have protected himself by demurrer. (Fla. Circ. Ct., Eule 58.) § 1157. Supplemental answer. In every case where an amendment shall be made after answer filed, the defend- ant shall put in a new or supplemental answer on or before the next succeeding rule day after that on which the amendment or amended bill is filed, unless the time therefor is enlarged or otherwise ordered by the judge or court and upon his default the like proceedings may be had as in cases of an omission to put in an answer. (Fla. Circ. Ct., Rule 59.) § 1158. Verification of answer. Every defendant may swear to his or her answer before any judge or justice of a court of the United States, or judge or justice of any court of any state or territory of the United States, or before any justice of the peace or notary public of any of the said states or territories, or of this state. (Fla. Circ. Ct., Eule 60.) XVII. Amendment or Answees § 1159. Matters as to which allowed. After an answer is put in, it may be amended as of course in any matter of form, or by filling up a blank, or correcting a date, or reference to a document or other small matter, and be resworn, at any time before a replication is put in, or the cause is set down for a hearing upon bill and answer. 1058 EQUITY PRACTICE But after replication, or such setting down for a hearing, it shall not be amended in any material matters, or by adding new facts or defences, or qualifying, or altering the original statements, except by special leave of the court or judge, upon motion and cause shown after due notice to the adverse party, supported if required by affidavit. And in every case where leave is so granted, the court or judge may in his discretion require that the same be separately engrossed and added as a distinct amendment to the original answer, so as to be distinguish- able therefrom. (Fla. Circ. Ct., Eule 61.) XVIII. Exceptions to Answers § 1160. Time for filing., After an answer is filed on any rule day, the plaintiff shall be allowed until the next succeeding rule day to file in the clerk's office exceptions thereto for insufficiency, and no longer, unless a longer time shall be allowed for the purpose upon cause shown to the court or judge; and if no exception shall be filed thereto within that period, the answer shall be deemed and taken to be sufficient. (Fla. Circ. Ct., Eule 62.) § 1161. Hearing on exceptions. "Where exceptions shall be filed to the answer for insufficiency within the period prescribed by these rules, if the defendant shall not sub- mit to the same and file an amended answer on the next succeeding rule day, the plaintiff shall within five days set them down for a hearing before the judge; and shall enter as of course in the order book an order for that purpose. And if he shall not so set down the same for a hearing, the exception shall be deemed abandoned, and the answer shall be deemed sufficient ; provided, however, that the court or judge may for good cause shown enlarge the time for filing exceptions, or for answering the same, in his discretion, upon such terms as he may deem reason- able. (Fla. Circ. Ct., Eule 63.) §1162. Allowance of exceptions — Compelling better answer. If, at the hearing, the exceptions shall be allowed, the defendant shall be bound to put in a full and complete answer thereto on the next succeeding rule day; otherwise the plaintiff shall, as of course, be entitled to FLORIDA STATUTES AND RULES 1059 take the bill, so far as the matter of such exceptions is concerned, as confessed, or, at his election, he may have a writ of attachment to compel the defendant to make a better answer to the matter of the exceptions; and the defendant, when he is in custody upon such writ, or judge, upon his putting in such answer, and complying with such other terms as the judge may direct. (Fla. Circ. Ct., Eule 64.) § 1163. Costs upon allowance or disallowance. If, upon argument, the plaintiff's exceptions to the answer shall be overruled, or the answer shall be adjudged insufficient, the prevailing party shall be entitled to all the costs occasioned thereby, unless otherwise directed by the courts or judge at the hearing upon the exceptions. (Fla. Circ. Ct., Eule 65.) XIX. Replication and Issue § 1164. Amendment after answer. No special replica- tion to any answer shall be filed. But if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may have leave to amend the same with or without the payment of costs, as the court or judge may in his discretion direct. (Fla. Circ. Ct., Rule 66.) §1165. Replication— Filing— Effect— Failure to file. Whenever the answer of the defendant shall not be ex- cepted to, or shall be adjudged or deemed sufficient, the plaintiff shall file the general replication thereto on or before the next succeeding rule day thereafter ; and in all cases where the general replication is filed, the cause shall be deemed to all intents and purposes at issue, with- out any rejoinder or other pleading on either side. If the plaintiff shall omit or refuse to file such replication within the prescribed period, the defendant shall be entitled to an order as of course for a dismissal of the suit; and the suit shall thereupon stand dismissed, unless the court or judge shall, upon motion for cause shown, allow a replication to be filed nunc pro tunc, the plaintiff sub- mitting to speed the cause, and to such other terms as may be directed. (Fla. Circ'. Ct., Rule 67.) 1060 EQUITY PRACTICE XX. Pboduction of Papees § 1166. Common law rules. The rules in common law proceedings regulating the production and discovery of books, papers and documents, for the purpose of enabling parties to prepare their pleadings, are hereby adopted and declared to be the rules in equity in respect to the same subject-matter. The adoption of this rule, how- ever, shall in no manner diminish or curtail the general power of the court in respect to this general subject. (Fla. Circ. Ct.,Eule68.) XXI. Testimony, How Taken § 1167. Commission — Notice — Oral interrogatories. After the cause is at issue, commissions to take testimony may be taken out jointly by both parties, or severally by either party, upon interrogatories filed by the party tak- ing out the same in the clerk's office, ten days' notice thereof being given to the adverse party to file cross interrogatories before the issuing of the commission ; and if no cross interrogatories are filed at the expiration of the time, the commissioners shall be named by the court or judge. If the parties shall so agree, the testimony may be taken upon oral interrogatories by the parties or their agents, without filing any written interrogatories. (Fla. Circ. Ct., Rule 69.) § 1168. Taking deposition after cause at issue. Testi- mony may also be taken in the cause, after it is at issue, by deposition, according to the statutes of the State of Florida regulating the subject.* (Fla. Circ. Ct., Rule 70.) § 1169. Depositions after cause at issue — Time allowed — Publication. Three months, and no more, shall be allowed for the taking of testimony after the cause is at issue, unless the judge shall upon special cause shown by either party, enlarge the time; and no testimony taken after such period shall be allowed to be read in evidence at the hearing. Immediately upon the return of the commissions and depositions containing the testimony into the clerk 's office, publication thereof may be ordered * Thomp. Dig. 459, 461. FLORIDA STATUTES AND RULES 1061 in tile clerk's office by tlie judge, upon due notice to the parties, or it may be enlarged as lie may deem reasonable under all the circumstances. But by consent of the parties, publication of the testimony may at any time pass in the clerk's office, such consent being in writing, and a copy thereof entered in the order book or endorsed upon the deposition or testimony. (Fla. Circ. Ct., Eule 71.) XXII. Testimony de Bene Esse § 1170. Statutory provision. Testimony de bene esse shall be taken in accordance with the statute.* (Fla, Circ. Ct., Eule 72.) XXIII. FOEM OF THE LaST InTEKKOGATOEY § 1171. Form. The last interrogatory in the written interrogatories to take testimony may be stated in sub- stance thus: "Do you know, or can you set forth any other matter or thing which may be a benefit or advantage to the parties at issue in this cause, or either of them, or that may be material to the subject of this your examination, or the matters in question in this cause 1 If yea, set forth the same fully and at large in your answer. ' ' "(Fla. Circ. Ct., Eule 73.) XXIV. Mastees in Chanceey — Peoceedings Beeoee Them " § 1172. Appointment — Compensation. The judges of the circuit court in their respective circuits may appoint as many masters in chancery as they may find necessary, and they may also appoint a master pro hac vice in any particular case. The compensation to be allowed to every master in any particular case shall be fixed by the court or judge in its discretion, having regard to the circum- stances thereof, except where the fees are prescribed by law. This compensation shall be taxed as part of the costs in the cause in which they have accrued and shall be charged upon and borne by such of the parties in the * Thomp. Dig. 459. 1062 EQUITY PRACTICE cause as tlie court shall direct. When the compensation is allowed by the court, the master shall be entitled to an attachment for the amount against the party who is ordered to pay the same, if upon notice thereof he does not pay it within the time prescribed by the court. (Fla. Circ. Ct., Rule 74.) § 1173. Decree for account of personal estate. Every decree for an account of the personal estate of a testator, or intestate, shall contain a direction to the master to whom it is referred to take the same, to inquire and state to the court what parts if any of such personal estate are outstanding or undisposed of, unless the court shall other- wise direct. (Fla. Circ. Ct., Rule 75.) § 1174. Presenting referred matter to master. When- ever any reference of any matter is made to a master to examine and report thereon, the party at whose instance or for whose benefit the reference is made shall cause the same to be presented to the master for a hearing on or before the next rule day succeeding the time when the reference was made, or within the time limited by the court. If he shall omit to do so, the adverse party shall be at liberty forthwith to cause proceedings to be had before the master, at the cost of the party procuring the reference. (Fla. Circ. Ct., Rule 76.) § 1175. Reference — Time and place for hearing — ^Notice — Adjournments. Upon every such reference it shall be the duty of the master, as soon as he reasonably can, after the same is brought before him, to assign a time and place for proceedings in the same, and to give due notice thereof to each of the parties or their solicitors; and if either party shall fail to appear at the time and place appointed, the master shall be at liberty to proceed ex parte, or, in his discretion, to adjourn the examination and proceedings , to a future day, giving notice to the absent party or his solicitor of such adjournment; and it shall be the duty of the master to proceed with all reasonable diligence in every such reference, and with the least practicable delay; and either party shall be at liberty to apply to the court or judge for an order to the master to speed the proceedings and to make his FLORIDA STATUTES AND RULES 1063 report, and to certify to the court or judge the reasons for any delay. (Fla. Circ. Ct., Eule 77.) § 1176. Proceedings — Examination of parties — Produc- tion of documents — Examination of witnesses. The master shall regulate all the proceedings in every hearing before him upon every such reference, and he shall have full authority to examine the parties in the cause upon oath, touching all matters contained in the reference ; and also to require the production of all books, papers, writ- ings, vouchers, and other documents applicable thereto; and also to examine on oath, viva voce, all witnesses pro- duced by the parties before him; and also to direct the mode in which the matters requiring evidence shall be proved before him; and generally to do all other acts, and direct all other inquiries and proceedings in the matter before him which he may deem necessary and proper to the justice and merits thereof and the rights of the parties. (Fla. Circ. Ct., Eule 78.)- § 1177. Taking testimony — Subpoena — Compelling at- tendance — Examination viva voce. Witnesses who live within the county may, upon due notice to the opposite party, be summoned to appear before the commissioner appointed to take testimony, or before a master or examiner appointed in any cause, by subpoena in the usual form, which may be issued by the clerk in blank and filled up by the party praying the same, or by the commissioner, master, or examiner, requiring the attend- ance of the witnesses at the time and place specified, who shall be allowed for attendance the same compensation as for attendance on court; and if any witnesses shall refuse to appear, or to give evidence, it shall be deemed a contempt of court, which being certified to the clerk's office by the commissioner, master, or examiner, an attach- ment may issue thereupon by order of the court or judge, in the same manner as if the contempt were for not attending, or for refusing to give testimony in the court. But nothing herein contained shall prevent the examina- tion of witnesses viva voce, when produced in open court, if the court shall in its discretion deem it advisable. (Fla. Circ. Ct., Eule 79.) 1064 EQUITY PRACTICE § 1178. Accounts — Examination of parties. All parties accounting before a master shall bring in their respective accounts in the form of debtor and creditor, and any of the other parties who shall not be satisfied with the accounts so brought in shall be at liberty to examine the accounting party viva voce, or upon interrogatories, in the master's office, or by deposition, as the master shall direct. (Fla. Circ. Ct., Eule 80.) § 1179. Use of affidavits, depositions and documents before master. All affidavits, depositions and documents which have been previously made, read or used in the court, upon any proceeding in any cause or matter, may be used before the master. (Fla. Circ. Ct., Eule 81.) § 1180. Examination of creditors. The master shall be at liberty to examine any creditor or other person coming in to claim before him, either upon written interroga- tories, or viva voce, or in both modes, as the nature of the case may appear to him to require. The evidence upon all examinations shall be taken down by the master, or by some other person by his order, and in his presence, and shall be filed with his report. (Fla. Circ. Ct., Eule 82.) § 1181. Report — Matters excluded. In the reports made by the master to the court no part of any statement of facts, charge, affidavit, deposition, examination or answer brought in or used before him, shall be stated or recited. But such statement of facts, charge, affidavit, deposition, examination or answer shall be identified, specified and referred to, so as to inform the court what statement of facts, charge, affidavit, deposition, examina- tion or answer were so brought in or used. (Fla. Circ. Ct., Eule 83.) XXV. Exceptions to Eepoet op Master § 1182. Filing report — Exceptions — Costs. The master, as soon as his report is ready, shall return the same into the clerk 's office, and the parties shall have one month from the time of filing the report to file excep- tions thereto ; and if no exceptions are within that period filed by either party, the report shall stand confirmed on the next rule day after the month is expired, if not FLORIDA STATUTES AND RULES 1065 sooner confirmed by special order of the judge or court. If exceptions are filed, they shall stand for hearing before the court upon reasonable notice by either party. And in order to prevent exceptions to reports from being filed for frivolous causes, or for mere delay, the party whose exceptions are overruled shall, for every exception over- ruled, pay costs to the other party, and for every excep- tion allowed, shall be entitled to costs — the costs to be fixed in each case by the court or judge. (Fla. Circ. Ct., Eule 81) XXVT. Setting Caxtse Down poe Hearing § 1183. Time for setting for hearing. After the cause is at issue and the time for taking testimony has elapsed, either party may, at any time, set the cause down for a hearing, unless further time for taking testimony is agreed upon by the parties or is allowed by the court or judge, and after the testimony has been taken the cause may be set down for a hearing by either party as aforesaid, provided that the plaintiff or complainant may, as of course, set down the cause for a hearing on bill and answer at any time. (Fla. Circ. Ct., Eule 85.) § 1184. Manner of setting down for hearing — Post- ponement — Failure to attend. A cause may be set down for a hearing by an entry in the order book in the clerk 's of- fice as follows : ' ' Set down for a hearing by complainant, ' ' (or defendant, as the case may be.) But after the same is so set down, the court or judge may, for good cause, open the same to allow further time for taking testimony. After a cause has been set down for a hearing, either party may, at any time, upon notice to the adverse party, have the cause heard upon a day to be named in such notice, unless for good cause the court or judge shall postpone the hearing, to another day, and if on the day named in the notice or the day fixed by the judge for a hearing, one or the other of the parties shall not at- tend, the cause may nevertheless be proceeded in, and the court shall render such decree as the right and justice of the case may require. (Fla. Circ. Ct., Eule 86.) 1066 EQUITY PRACTICE XXVII. Deceees § 1185. Signing and recording — Correcting errors. De- crees may be signed when pronounced, and may be re- corded at once. Clerical mistakes in decrees, or decretal orders, or errors arising from any accidental slip or omis- sion, may, at any time before an actual entry thereof, be corrected by order of the court or judge upon petition, without the form or expense of a rehearing. (Ma. Circ. Ct., Rule 87.) § 1186. Recitals in decree. In drawing up decrees and orders, neither the bill, nor answer, nor other pleadings, nor any part thereof, nor the report of any master, nor any other prior proceeding shall be recited or stated in the decree or order; but the decree and order shall begin in substance as follows: "This cause came on to be heard (or to be further heard, as the case may be,) and was argued by counsel; and thereupon, upon considera- tion thereof, it was ordered, adjudged and decreed as follows, viz. :" (Here insert the decree or order.) (Fla. Circ. Ct., Rule 88.) § 1187. Deficiency decree on foreclosure — Execution. In suits in equity for the foreclosure of mortgages, a decree may be rendered for any balance that may be found due to the plaintiff over and above the proceeds of the sale or sales, and execution may issue for the col- lection of the same as is prescribed in the rule regulating the equity practice where the decree is solely for the payment of money. (Fla. Circ. Ct., Eule 89.) XXVIII. Petition foe Rehearing § 1188. Contents — Signature — Verification — Filing. Every petition for a rehearing shall contain the special matter or cause on which such rehearing is applied for, shall be signed by counsel, and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party, or by some other person. No rehear- ing shall be granted unless the petition is filed within thirty days after granting of the decree, if an appeal lies FLORIDA STATUTES AND RULES 1067 to the supreme court. But if no appeal lies, the petition may be admitted at any time within six months, in the discretion of the court. (Fla. Circ. Ct., Eule 90.) § 1190. Rules — Power of circuit courts to make and amend. The circuit courts may make any other and further rules and regulations for the practice, pro- ceeding and process, mesne and final, in their respec- tive districts, not inconsistent with the rules hereby pre- scribed, in their discretion, and from time to time alter and amend the same. (Fla. Circ. Ct., Eule 91.) § 1191. Affirmation in lieu of oath. Whenever, under these rules, an oath is or may be required to be taken, the party may, if conscientiously scrupulous of taking an oath, in lieu thereof make solemn affirmation to the truth of the facts stated by him, and the same may be taken before any officer or person authorized by law to admin- ister oaths. (Fla. Circ. Ct., Eule 92.) XXTX. Transcripts and Ebturns Upon Appeal. Citation § 1192. Transcripts. In preparing copies of proceed- ings and transcripts of records in chancery causes, the form adopted for transcripts of records and proceedings in common law causes [see Eule 103 in common law actions] shall be followed so far as applicable. Where the testimony is taken upon written interrogatories and answers thereto, each interrogatory and its correspond- ing answer shall be inserted consecutively as provided by the rule regulating the subject in common law actions [see Eule 99] ; and such examination, except in the cases provided in said rule. (Fla. Circ. Ct., Eule 93.) § 1193. Copying papers into record — Duty of clerk. No paper, document or instrument of writing shall be copied by the clerk into the record of a chancery cause as used in evidence upon the hearing of said cause, unless the same shall have been noted by the judge as read in evi- dence, or rejected when offered as evidence. (Fla. Circ. Ct., Eule 94.) §1194. Appeal — Citation — Issue, service and return. When an appeal is entered in the circuit court in a chan- Whitehouse E. P. Vol. 11 — ^12 1068 EQUITY MACTICE eery cause, the appellant, at tlie time of entering the appeal, shall apply to the clerk of the circuit court from which the appeal is taken, or upon the filing of the tran- script of the proceedings in the supreme court, shall apply to the clerk of that court to issue a citation requiring the appellee or respondent to be and appear at the term of the supreme court to which the appeal is returnable to show cause, if any he can, why the judgment should not be reversed. Such, citation shall be served and returned as a writ of scire facias ad audiendum errores upon a writ of error sued out. (Fla. Circ. Ct., Eule 95.) EXTRACTS FROM SUPREME COURT RULES § 1195. Appeal — Assignment of errors — Cross assign- ments — Making up transcript. It shall be the duty of the appellant when he applies to the clerk for the tran- script of the record in any chancery cause, to file with the clerk of the court whose decree or order is appealed from, a complete assignment of all the errors he intends to rely upon for reversal in the appellate court, and at the same time he shall file a written direction to the clerk indicating the papers and proceedings that are to be copied and made a part of the transcript of the record, and those that are to be recited therein, and also those that are to be omitted therefrom, which written direc- tion shall indicate a date on which the clerk shall com- mence the making up of such transcript, which date shall be fixed at not less than fifteen days after the date of the filing of such written direction; and a copy of such written direction and assignment of errors shall be served on the appellee or his attorney within five days after it is filed with the clerk. Such assignment of errors, and the assignment of errors if any, filed by the appellee, as hereinafter provided, shall be the guide by which the transcript of the record is to be made up. If at the time fixed in such written direction the appellee or his at- torney shall not have filed an additional direction to such clerk requiring him to include in such transcript other matter not required in the written direction of the appel- lant, the clerk shall prepare the transcript as directed by FLORIDA STATUTES AND RULES 1069 the appellant; but if the appellee shall within the time fixed file an additional written direction, the clerk shall also include the matters therein directed. If the appellee desires to have any ruling made against him reviewed upon such appeal, he shall within the time prescribed by these rules for filing his additional directions, file a com- plete assignment of all the errors he intends to rely upon in the appellate court, and serve a copy thereof, together with a copy o^ his additional directions to the clerk, if he gives any, upon the appellant or his attorney, and the appellant shall have five days' time thereafter to file additional directions to the clerk, in which case the time within which the clerk is to commence making up the transcript shall be extended for said period of five days. Any failure on the part of the appellant to comply with the foregoing provisions shall be cause for dismissal of the appeal by the appellate court. If the appellee fails to file and serve cross assignments of error as herein pro- vided, the parties will be confined on the hearing to the consideration of the assignments of error filed by ap- pellant. The clerk shall include in such transcript, at the foot thereof, and immediately preceding his certificate, a copy of all such written directions of the appellant and appellee, and also copies of the assignments of error filed with such written directions. When the evidence in a chancery cause is incorporated into the transcript, all commissions upon which depositions were taken, instruc- tions to commissioners, jurats and certificates, and oaths of commissioners shall be omitted, unless some assign- ment of error is predicated thereon; and when questions or interrogatories are included, the answer to each ques- tion or interrogatory shall be placed in the transcript im- mediately following the question or interrogatory to which it is the answer. Subpoenas to defendants and wit- nesses, and the returns thereon, shall be omitted from the transcript, unless some assignment or error is pre- dicated thereon. (Fla. Sup. Ct., Spec. Eule 4.) § 1196. Evidence in record on appeal. Assignments of error in chancery causes based on the rejection or ad- mission of evidence will not be considered unless the rec- 1070 EQUITY PRACTICE ord affirmatively shows that the evidence was offered before the chancellor and rejected by him, or that the objection taken to the evidence admitted was presented to and expressly ruled upon by him, in the court below at or before the final hearing of the cause. Every matter purporting to be evidence found copied by the clerk into the record in such causes will be presumed by this court to have been used in evidence in the court below, unless the record affirmatively shows the contrary. (Fla. Sup. Ct., Eule 18.) CHAPTER XXXIII ILLINOIS . STATUTES * Chanceey § 1197. Procedure controlled by this act and general chancery usage. Section 1. The several circuit courts of , this state, and superior court of Cook county, in all causes of which they may have jurisdiction as courts of chancery, shall have power to proceed therein according to the mode hereinafter prescribed; and where no provision is made by this act, according to the general usage and practice of courts of equity. (J. & A. H 881, Hurd E. S. 1913, p. 163.) § 1198. Rules.f Sec. 2. The judges of the circuit courts and of the superior court of Cook county, in their respect- ive circuits, may establish rules of proceeding in chancery, and make all needful orders and regulations, consistent with the practice of courts of chancery, in cases not pro- vided for by law. (J. & A. H 882, Hurd K. S. 191^, p. 163.) § 1199. Venue. Sec. 3. Suits in chancery shall be com- menced in the county where the defendants, or some one or more of them resides ; or if the defendants are all non- residents, then in any county; or if the suit may affect real estate, in the county where the same or some part * Jones & Addington's Annotated Statutes; Hurd's Eevised Statutes, 1913 ed. Corrected to January 1, 1915. t Rules of court. — Sec. 34. The said courts may, from time to time, make all such rules for the orderly disposition of business before them as may be deemed expedient, consistent with law. (J. & A. H 3032, Hurd E. S. 1913, p. 693.) 1071 1072 EQUITY PRACTICE thereof is situated. Bills for injunctions to stay proceed- ings at law shall be brought in the county in which the proceedings at law are had. (J. & A. K 883, Hurd E. S. 1913, p. 163.) § 1200. Mode of beginning suit.* Sec. 4. The mode of commencing suits in chancery shall be by filing a bill of complaint with the clerk of the proper court, setting forth the nature of the complaint. (J. & A. H 884, Hurd E. S. 1913, p. 164.) § 1201. Suits by infants — By conservators. Sec. 5. Suits in chancery may be commenced and prosecuted by infants, either by guardian or next friend, and by con- servators on behalf of the persons they represent. (J. & A. H 885, Hurd E. S. 1913, p. 164.) § 1202. Guardian ad litem. Sec. 6. In any cause in equity it shall be lawful for the court in which the cause is pending to appoint a guardian ad litem, to any infant or insane defendant in such cause, and to compel the per- son so appointed to act. By such appointment, such per- son shall not be rendered liable to pay costs of suit; and he shall, moreover, be allowed a reasonable sum for his charges as such guardian, to be fixed by the court, and taxed in the bill of costs. (J. & A. H 886, Hurd E. S. 1913, p. 164.) § 1203. Unknown parties — Affidavit — Notice. Sec. 7. In all suits in chancery, and suits to obtain title to lands, * Entry of appearance in writing — Suing or defending in proper per- son. See. 16. Before a party prosecutes or defends in his own proper person in any action or proceeding at law or in equity, he shall enter his appearance in writing and shall state therein a place within the county in which the action or proceeding is pending, where service of notices or other papers necessary or desired to be given or served in such action or proceeding may be had upon him, and shall also state therein his place of residence and principal place of business. Such places shall be stated with particularity so as to be capable of easy identification. Notices or other papers to be served in such action or proceeding upon a party so appearing may be served upon him in person or by leaving a, copy thereof at such designated place, residence or place of business, with some person employed therein, or of the family of such party, of the age of ten years or upwards, and informing such person of the contents there- of; and when so served, shall have like effect as though such party had appeared by attorney and such notice or other paper had been served upon his attorney. (J. & A. K 8553, Hurd E. S. 1913, p. 1860.) ILLINOIS STATUTES AND RULES 1073 in any of the courts of this state, if there be persons in- terested in the same, whose names are unknown, it shall be lawful to make such persons parties to such suits or proceedings, by the name and description of unknown owners, or unknown heirs or devisees of any deceased person, who may have been interested in the subject-mat- ter of the suit previous to his or her death; but in all such cases an affidavit shall be filed by the party desiring to make any unknown person a party, stating that the names of such persons are unknown ; and process shall be issued against all parties, by the name and description given as aforesaid; and notices given by publication, as is required in this act, shall be sufficient to authorize the court to hear and determine the suit, as though all parties had been sued by their proper names. (J. & A. 1[ 887, Hurd R. S. 1913, p. 164.) § 1204. Summons. Sec. 8. Upon the filing of every bill, the clerk of the court shall thereupon issue a sum- mons, attested, dated and sealed as a summons in common- law suits, directed to the sheriff of the county in which the defendant resides, if the defendant be a resident of this state, requiring him to appear and answer the bill on the return day of the summons; and where there are several defendants residing in different counties, a sep- arate summons shall be issued to each county, including all the defendants residing therein. (J. & A. 1| 888, Hurd R. S. 1913, p. 164.) § 1205. — When returnable. Sec. 9. Every summons in chancery shall be made returnable to the next term of the court after the date thereof, or the next succeeding term thereafter. (J. & A. U 889, Hurd E. S. 1913, p. 164.) §1206. Alias— Fluries. Sec. 10. If, in any suit in chancery, the process shall not be returned executed on or before the return day thereof, the clerk, if required, shall issue an alias, pluries, or other process, without an order of the court therefor. ( J. & A. Tf 890, Hurd E. S. 1913, p. 164.) § 1207. Service of summons — Continuance. Sec. 11. Service of summons shall be made by delivering a copy thereof to the defendant, or leaving such copy at his 1074 EQUITY PRACTICE usual place of abode, with some person of the family, of the age of ten years or upwards, and informing such person of the contents thereof. If service is not had at least ten days before the return day of such summons, the cause shall stand continued till the next term of the court. (J. & A. Ij 891, Hurd E. S. 1913, p. 164.) § 1208. Notice by publication — Affidavit — Mailing — Certificate. Sec. 12. "Whenever any complainant or his attorney shall file in the office of the clerk of the court in which his suit is pending, an affidavit showing that any defendant resides or hath gone out of this state, or on due inquiry cannot be found, or is concealed within this state, so that process cannot be served upon him, and stating the place of residence of such defendant if known, or that upon diligent inquiry his place of residence cannot be ascertained, the clerk shall cause publication to be made in some newspaper printed in his county, and if there be no newspaper published in his county, then in the near- est newspaper published in this state, containing notice of the pendency of such suit, the names of the parties thereto, the title of the court, and the time and place of the return of summons in the case; and he shall also, within ten days of the first publication of such notice, send a copy thereof by mail, addressed to such defendant whose place of residence is stated in such affidavit. The certificate of the clerk that he has sent such notice in pursuance of this section, shall be evidence. (J. & A. IT 892, Hurd R. S. 1913, p. 164.) § 1209. Period of publication— Default.* Sec. 13. The * What sufficient publication in courts of record. Section 1. In all suits at law or in chancery, or in probate matters hereafter commenced in courts of record in this State where service by publication is required, or against non-resident defendants who reside or have gone out of the State, or on due inquiry cannot be found or are concealed within this State, so that process can. not be served upon them, it shall be sufficient publication if such notice shall be published for at least four (4) successive weeks, the first publication to be at least thirty (30) days next prior to the first day of the term of such court, in some newspaper of general circulation in the county in which such suit may be brought. And the clerk of the court shall mail to the defendants at their last known place of residence, as stated in the affidavit, a copy of said notice within ten days after the first day of the publication of the same. (J. & A. fl 7856, Hurd R. S. 1913, p. 1698.) ILLINOIS STATUTES AND EULES 1075 notice required in the preceding section may be given at any time after the commencement of the suit, and shall be published at least once in each week for four succes- sive weeks, and no default or proceeding shall be taken against any defendant not served with summons, or a copy of the bill, and not appearing, unless forty days shall intervene between the first publication, as afore- said, and the first day of the term at which such default or proceeding is proposed to be taken. (J. & A. H 893, Hurd E. S. 1913, p. 165.) § 1210. Service on non-resident by copy of bill — Proof. Sec. 14. The complainant may cause a copy of the bill, together with a notice of the commencement of the suit, to be delivered to any defendant residing or being with- out this state, not less than thirty days previous to the commencement of the term at which such defendant is required to appear; which service, when proved to the satisfaction of the court, shall be as effectual as if such service had been made in the usual form, within the limits of this state. The service by a copy of the bill may be proved by the affidavit of the person serving the same, made before any officer authorized to administer oaths in the place where the affidavit is made, or in case the service is made in any foreign country, before any United States minister or consul residing in the country where the same is made. (J. & A. H 894, Hurd E. S. 1913, p. 165.) § 1211. Case continued for service. Sec. 15. If, for want of due publication or service in time, the cause shall be continued, then the same proceedings may be had at a sub- sequent term of the court as might have been had at the term to which said summons is returnable. (J. & A. H 895, Hurd E. S. 1913, p. 165.) § 1212. Pleading — Default — BUI confessed. Sec. 16. Every defendant who shall be summoned, served with a copy of the bill or petition, or notified as required in this act, shall be held to except, demur, plead or answer on the return day of the summons; or if the summons is not served ten days before the first day of the term at which it is returnable, by the first day of the next term; or in 1076 EQUITY PRACTICE case of service by copy of the bill, or by notice, at the expiration of the time required to be given, or within such further time as may be granted by the court; or, in default thereof, the bill may be taken as confessed. (J. & A. TI 896, Hurd E. S. 1913, p. 165.) § 1213. Decree, when vacated at next term. Sec. 17. If the defendant shall appear at the next term and offer to file his answer to the bill, the court may permit him to do so, upon his showing sufficient cause, and paying the costs of the preceding terms. In such case the decree shall be vacated and the cause may be proceeded in as in other cases. (J. & A. If 897, Hurd E. S. 1913, p. 165.) § 1214. Evidence on bill confessed — Final decree. Sec. 18. Where a bill is taken for confessed, the court, bef-ore a final decree is made, if deemed requisite, may require the complainant to produce documents and witnesses to prove the allegations of his bill, or may examine him on oath or affirmation touching the facts therein alleged. Such decree shall be made in either case as the court shall consider equitable and proper. (J. & A. Ij 898, Hurd E. S. 1913, p. 165.) § 1215. Defendant not served may have decree vacated within three years. Sec. 19. "When any final decree shall be entered against any defendant who shall not have been summoned or been served with a copy of the bill, or received the notice required to be sent him by mail, and such person, his heirs, devisees, executor, administrator or other legal representatives, as the case may require, shall, within one year after notice in writing given him of such decree, or within three years after such decree, if no such notice shall have been given as aforesaid, ap- pear in open court and petition to be heard touching the matter of such decree, and shall pay such costs as the court shall deem reasonable in that behalf, the person so petitioning may appear and answer the complainant's bill, and thereupon such proceedings shall be had as if the defendants had appeared in due season and no decree had been made. And if it shall appear, upon the hearing, that such decree ought not to have been made against such defendant, the same may be set aside, altered or ILLINOIS STATUTES AND RULES 1077 amended as shall appear just; otherwise the same shall be ordered to stand confirmed against said defendant. The decree shall, after three years from the making thereof, if not set aside in manner aforesaid, be deemed and adjudged confirmed against such defendant, and all persons claiming under him by virtue of any act done subsequent to the commencement of such suit; and at the end of the said three years, the court may make such further order in the premises as shall be required to carry the same into effect. (J. & A. 1[899, Hurd E. S. 1913, p. 165.) § 1216. Waiver of oath— Answer. Sec. 20. When a bill, supplemental bill, bill of review, or revivor, or cross bill, shall be filed in the court of chancery, other than for discovery only, the complainant may waive the neces- sity of the answer being made on the oath of the de- fendant, defendants or any of them; and, in such cases, the answer may be made without oath, and shall have no other or greater force as evidence than the bill. (J. & A. H 900, Hurd R. S. 1913, p. 166.) § 1217, Answer under oath. Sec. 21. Every answer shall be verified by an oath or affirmation, except as pro- vided in the foregoing section. (J. & A. ^ 901, Hurd E. S. 1913, p. 166.) § 1218. Answer by private corporation. Sec. 22. When a corporation, other than a municipal corporation, is de- fendant to a bill or petition praying discovery of any paper or matter alleged to be in the custody or within the knowledge of any officer or agent of the defendant, it shall not be necessary, for the purpose of procuring such discovery, to make such officer or agent a defendant, but the answer touching the paper or matter concerning which discovery is sought, shall be under the oath of such officer or agent the same as if he had been made defendant: Provided, no corporation shall be required to procure such answer under the oath of any person not under its control at the time when the bill is filed. ( J. & A. ^ 902, Hurd E. S. 1913, p. 166.) § 1219. Full answer required. Sec. 23. Every defend- ant shall answer fully all the allegations and interroga- 1078 EQUITY PRACTICE tories of the complainant, whether an answer on oath is waived or not, except such as are not required to be answered, by reason of exceptions, plea or demurrer thereto allowed. (J. & A. H 903, Hurd E. S. 1913, p. 166.) § 1220. Insufficient answer — Contempt. Sec. 24. When an answer shall be adjudged insufficient, the defendant shall file a further answer within such time as the court shall direct, and on failure thereof, the bill shall be taken as confessed ; if such further answer shall be likewise ad- judged insufficient, the defendant shall file a. supplemental answer, and pay all costs attendant thereon; if that shall be adjudged insufficient, the defendant may be proceeded against for a contempt, and the like proceedings be had thereon, to enforce the order of the court, as in other cases of contempt. ( J. & A. H 904, Hurd E. S. 1913, p. 166.) § 1221. Discovery in answer not conclusive. Sec. 25. When the complainant shall require a discovery respect- ing the matters charged in the bill, the disclosure shall not be deemed conclusive, but if a replication be filed, may be disproved or contradicted, like any other testimony, according to the practice of courts of equity. (J. & A. T[905, Hurd E. S. 1913, p. 166.) § 1222. Further interrogatories. Sec. 26. On the com- ing in of any answer, the complainant may, by leave of court, exhibit and file further interrogatories, to be an- swered by the defendant within such time as shall be fixed by the court. (J. & A. H 906, Hurd E. S. 1913, p. 166.) § 1223. Exceptions to answers. Sec. 27. All exceptions to answers or to interrogatories exhibited, shall be filed within such time as the court may direct, and be argued at such time as the court may appoint. ( J. & A. T[ 907, Hurd E. S. 1913, p. 166.) § 1224. Replication. Sec. 28. Eeplications shall be gen- eral, with the like advantage to all parties as if special, and shall be filed in four days after the plaintiff or his attorney shall be served with notice of answer filed. (J. & A. ^908, Hurd E. S. 1913, p. 166.) § 1225. Hearing-. Sec. 29. After replication is filed, the cause shall be deemed at issue and stand for hearing, or ILLINOIS STATUTES AND RULES 1079 in default of filing such replication, the cause may be set for hearing upon the bill and answer; in which case the answer shall be taken as true, and no evidence shall be received, unless it be matter of record to which the answer refers. (J. & A. U 909, Hurd E. S. 1913, p. 166.) § 1226. Cross-bill. Sec. 30. Any defendant may, after filing his answer, exhibit and file his cross-bill, and call upon the complainant to file his answer thereto, in such time as may be prescribed by the court. ( J. & A. 1[ 910, Hurd E. S. 1913, p. 166.) § 1227. — Recitals unnecessary — Process for new par- ties. Sec. 31. It shall not be necessary to recite in a cross-bill any of the pleadings or proceedings in the case in which it is filed ; and it shall not be necessary to pray process except against new parties. (J. & A. T[ 911, Hurd E. S. 1913, p. 166.) § 1228. — Pleading thereto. Sec. 32. The complain- ant shall be required to except, plead, demur or answer to such cross-bill in the same manner that a defendant is required to except, plead, demur or answer to an original bill, and his answer shall have the same effect as a defend- ant's answer to a bill. ( J. & A. H 912, Hurd E. S. 1913, p. 166.) § 1229. — Failure to answer. Sec. 33. If the com- plainant shall fail to answer such cross-bill, his bill shall be dismissed with costs, or the new matter set out in the defendant's cross-bill shall be taken as confessed, and a decree entered accordingly. (J. & A. T[ 913, Hurd E. S. 1913, p. 167.) § 1230. — New parties on. Sec. 34. Where it is neces- sary for the defendant to bring a new party before the court, he shall state it in his cross-bill, and a summons shall be issued, and other proceedings had, as in the case of other defendants. (J. & A. T[ 914, Hurd E. S. 1913, p. 167.) § 1231. — When to be answered. Sec. 35. The com- plainant shall not be compelled to file his answer to any cross-bill, until the defendant shall have filed a sufficient answer to the complainant's bill. (J. & A. 1[915, Hurd E. S. 1913, p. 167.) 1080 EQUITY PRACTICE § 1232. No dismissal without consent after cross-bill filed. Sec. 36. No complainant shall be allowed to dismiss his bill, after a cross-bill has been filed, without the con- sent of the defendant. (J. & A. H 916, Hurd E. S. 1913, p. 167.) § 1233. Time to plead — Amendments — Continuances thereon. Sec. 37. The court may extend the time for an- swering, replying, pleading, demurring, or joining in de- murrer; and may permit the parties to amend their bills, pleas, answers and replications, on such terms as the court may deem proper, so that neither party be sur- prised nor unreasonably delayed thereby ; and no amend- ment shall be cause for a continuance, unless the party to be affected thereby, or his agent or attorney, shall make affidavit that, in consequence thereof, he is un- prepared to proceed to trial of the cause at that term, and that he verily believes that if the cause is continued such party will be able to make such preparation. (J. & A. II 917, Hurd E. S. 1913, p. 167.) § 1234. Supplying lost files. Sec. 38. In all chancery proceedings, where the bill of complaint, or any other paper filed in the cause, shall be lost or mislaid, the court in which said cause shall be pending may, in its discretion, permit the files to be supplied by the filing of a copy, in substance, of the lost or mislaid bill of complaint, or other paper, on the party wishing to supply the files making an affidavit, to the satisfaction of said court, that said bill of complaint, or other paper, is substan- tially a copy of the original, to the best of his knowledge, recollection and belief. (J. & A. H 918, Hurd E. S. 1913, p. 167.) § 1235. Reference to master. Sec. 39. The court may, upon default, or upon issue being joined, refer the cause to a master in chancery, or special commissioner, to take and report evidence, with or without his conclusions thereupon. (J. & A. Tf 919, Hurd E. S. 1913, p. 167.) § 1236. Jury trial discretionary — Former chancery practice retained. Sec. 40. The court may, in its discre- tion, direct an issue or issues to be tried by a jury, when- ever it shall be judged necessary in any cause in equity, ILLINOIS STATUTES AND EULES 1081 pending therein. In all other causes in equity, the mode of trial shall be the same as has been heretofore practiced in courts of chancery. (J. & A. ^ 920, Hurd E. S. 1913, p. 167.) § 1237. Failure to appear or answer — Contempt. Sec. 41. If a defendant in any proceeding in equity, having been served with a summons, or personally notified, as provided in this act, shall fail or refuse to appear or an- swer the bill of complaint, he may be attached and other- wise proceeded against according to the practice in equity in cases of contempt. ( J. & A. H 921, Hurd E. S. 1913, p. 167.) §1238. Enforcement of decree. Sec. 42. When any bill is taken for confessed, or upon hearing, the court may make such decree thereon as may be just, and may enforce such decree, either by sequestration of real and personal estate, by attachment against the person, by fine or im- prisonment, or both, by causing possession of real and personal estate to be delivered to the party entitled thereto, or by ordering the demand of the complainant to be paid out of the effects or estate sequestered, or which are included in such decree; and by the exercise of such other powers as pertain to courts of chancery, and which may be necessary for the attainment of justice. (J. & A. H 922, Hurd R. S. 1913, p. 167.) § 1239. Unknown parties. Sec. 43. All decrees, orders, judgments and proceedings, made or had with respect to unknown persons, shall have the same effect, and be as binding and conclusive upon them, as though such suit or proceeding had been instituted against them by their proper names. (J. & A. H 923, Hurd E. S. 1913, p. 167.) § 1240. Lien of money decree. Sec. 44. A decree for money shall be a lien on the lands and tenements of the party against whom it is entered, to the same extent and under the same limitations as a judgment at law. (J. & A. TI 924, Hurd E. S. 1913, p. 167.) § 1241. Lien of other decrees. Sec. 45. All decrees given in causes in equity in this state shall be a lien on all real estate respecting which such decrees shall be made; 1082 EQUITY PRACTICE and whenever, by any decree, any party to a suit in equity shall be required to perform any act other than the payment of money, or to refrain from performing any act, the court may, in such decree, order that the same shall be a lien upon the real or personal estate, or both, of such party until such decree shall be fully com- plied with; and such lien shall have the same force and effect, and be subject to the same limitations and restric- tions, as judgments at law. (J. & A. T[ 925, Hurd R. S. 1913, p. 168.) § 1242. Execution of deeds — Recording. Sec. 46, When- ever a decree shall be made in any suit in equity, direct- ing the execution of any deed or other writing, it shall be lawful for the court to appoint a commissioner, or direct the master in chancery to execute the same, in case the parties under no disability fail to execute the same, in a time to be named in the decree, or on behalf of minors or persons having conservators; and the exe- cution thereof, by such commissioner or master in chan- cery, shall be valid in law to pass, release or extinguish the right, title and interest of the party in whose behalf it is executed, as if executed by the party in proper per- son, and he or she were under no disability; and such deed or other writing, if it relates to land, shall, within six months after its execution by such commissioner or master, be recorded in the recorder's office of the county wherein the land may lie. (J. & A. ^ 926, Hurd R. S. 1913, p. 168.) § 1243. Execution of process to enforce decree — Penal- ties. Sec. 47. When there shall be no direction that a master in chancery or commissioner execute a decree, the same may be carried into effect by execution, or other final process, according to the nature of the case, directed to the sheriff or other officer of the proper county; which, when issued, shall be executed and returned by the sheriff or other officer to whom it may be directed, and shall have the same operation and force as similar writs issued upon a judgment at law. The sheriff, or other officer to whom the same is directed, shall be subject to the like penalties and recoveries for misconduct or neglect in the ILLINOIS STATUTES AND RULES 1083 execution or return thereof, as in cases at law; or the court may, if necessary, direct an attachment to be issued against the party disobeying such decree, and fine or im- prison him, or both, in the discretion of the court, and may also direct a sequestration for disobedience of any decree. (J. & A. Ij 927, Hurd R. S. 1913, p. 168.) § 1244. Terms of sale. Sec. 48. In all cases where a sale of property is decreed, the court may direct the same to be made for cash, or on such credit where no redemp- tion is allowed, and on such terms, as it may deem best and most equitable to the interests of the several parties. (J. & A. U 928, Hurd R. S. 1913, p. 168.) § 1245. Creditor's bilL Sec. 49. Whenever an execu- tion shall have been issued against the property of a defendant, on a judgment at law or in equity, and shall have been returned unsatisfied, in whole or in part, the party suing out such execution may file a bill in chancery against such defendant, and any other person, to compel the discovery of any property or thing in action, belong- ing to the defendant, and of any property, money, or thing in action due to him, or held in trust for him, and to pre- vent the transfer of any such property, money or thing in action, or the payment or delivery thereof to the de- fendant, except when such trust has, in good faith, been created by, or the fund so held in trust has proceeded from, some person other than the defendant himself. The court shall have power to compel such discovery, and to prevent such transfer, payment or delivery, and to decree satisfaction of the sum remaining due on such judgments, out of any personal property, money or things in action, belonging to the defendant, or held in trust for him, with the exception above stated, whicli shall be discovered by the proceedings in chancery, whether the same were originally liable to be taken in execution at law or not : Provided, that no answer made to any bill filed under this and the preceding section shall be read in evidence against the defendant on the trial of any indictment for fraud charged in the bill. (J. & A. H 929, Hurd R. S. 1913, p. 168.) § 1246. Bills to quiet title. Sec. 50. The court may Whitehouse B. P. Vol. II — 13 1084 EQUITY PRACTICE hear and determine bills to quiet title, and to remove clouds from the title to real estate, whether the lands in controversy are improved or occupied, or unimproved or unoccupied; and the taking possession of such lands, after the commencement of suit by the party claiming the title or the adverse title, or any one under or through such person or persons, shall not in anywise affect the complainant's right to a final decree upon his Jaill. (J. & A. H 930, Hurd E. S. 1913, p. 168.) § 1247. Exemptions preserved as at law. Sec. 51. Nothing contained in this act shall be construed to author- ize any lien upon or sale of those articles in possession of the defendant, which are exempt from execution by law, and not released or waived by the party entitled to such exemption. (J. & A. H 931, Hurd E. S. 1913, p. 168.) Amendments and Jeofails § 1248. Amendments before judgment. Section 1. The court in which an action is pending shall have power to permit amendments in any process, pleading or proceed- ing in such action, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment rendered therein. (J. & A. 1[ 300, Hurd E. S. 1913, p. 53.) § 1249. Amendments after judgment. Sec. 2. After judgment rendered in any cause, any defects or imper- fections in matter of form, contained in the record, plead- ings, process, entries, returns or other proceedings in such cause, may be rectified and amended by the court in affirmance of the judgment, so that such judgment shall not be reversed or annulled; and any variance in the record from any process, pleading or proceeding had in such cause, shall be reformed and amended accord- ing to such original process, pleading or proceeding. (J. & A. H 301, Hurd E. S. 1913, p. 53.) § 1250. Formal error no ground for reversal. Sec. 3. No judgment shall be reversed, in the supreme court, for mere error in form, if the judgment be for the true amount of indebtedness or damages. (J. & A. If 302, Hui-d E. S. 1913, p. 53.) ILLINOIS STATUTES AND EULES 1085 §1251. Returns amendable. Sec. 4. All returns by any sheriff or other officer, or by any court or subordi- nate tribunal, to any court, may be amended in manner or form, or according to the truth of the matter, by the court to which such returns shall be made, in its dis- cretion, as well before as after judgment. (J. & A. Ij 303, Hurd R. S. 1913, p. 53.) § 1252. Venire — Amendment. Sec. 5. Any imperfec- tion or defect in the award of any venire, or any omission to award such venire on the record, may be amended or supplied by the court in which the record is. (J. & A. U 304, Hurd E. S. 1913, p. 53.) §1253. Omissions, variances, defects: not ground for arrest or reversal. Sec. 6. Judgment shall not be ar- rested or stayed after verdict, nor shall any judgment upon verdict or finding by the court, or upon confession nil dicit or non sum informahis, or upon any writ of in- quiry of damages, be reversed, impaired, or in any way affected, by reason of any of the following imperfec- tions, omissions, defects, matters or things in the process, pleadings, proceedings or records, namely: First — ^For want of form in any writ, original or judi- cial. Second — ^For any default or lack of form in any writ, or misconceiving any process, or awarding the same to a wrong officer. Third — ^For any imperfect or insufficient return by any sheriff or other officer, or that the name of such officer is not set to any return actually made by him. Fourth — ^For any variance between the original writ or process and the declaration, bill, petition, plaint or demand. Fifth — For any mispleading, insufficient pleading, lack of color, miscontinuance, discontinuance or misjoining of the issue, or want of a joinder of the issue. Sixth — ^For the lack of an averment of the life of any person, if, upon examination, the person is found to be in life. Seventh— For the want of any warrant of attorney by 1086 EQUITY PRACTICE either party, except in case of judgment by confession upon warrant of attorney. Eighth — ^Por the reason that the person in whose favor the verdict or judgment is rendered is an infant, and ap- peared by attorney. Ninth-^-For the want of any allegation or averment on account of which omission a special demurrer could have been maintained. Tenth — For any mistake in the name of any party or person, or in any sum of money, or in the description of any property, or in reciting or stating any day, month or year, when the correct name, time, month or descrip- tion shall have been once rightly alleged in any of the pleadings or proceedings. Eleventh — For a mistake in the name of any juror or officer. Twelfth — ^For the want of a right venue if the cause was tried by a jury of the proper county. Thirteenth — For any informality in entering a judg- ment or making up the record thereof, or any continuance or other entry upon such record. Fourteenth — For any other default or negligence of any officer of the court, or of the parties or their coun- selors or attorneys, by which neither party shall have been prejudiced. (J. & A. 11305, Hurd E. S. 1913, p. 53.) § 1254. What defects amended — By what court. Sec. 7. The omissions, imperfections, defects and variances in the preceding section enumerated, and all others of a like nature, not being against the right and justice of the matter of the suit, and not altering the issue between the parties or the trial, shall be supplied and amended by the court where the judgment shall be given, or by the court into which such judgment shall be removed by appeal or writ of error. (J. & A. H 306, Hurd E. S. 1913, p. 54.) § 1255. No amendment without order of court. Sec. 8. No process, pleading or proceeding shall be amended or impaired by the clerk or other officer of any court, or by any other person, without the order of such, court, ILLINOIS STATUTES AND EULES 1087 or of some other court of competent authority. (J. & A. Tf307, HurdE. S. 1913, p. 54.) § 1256. Proceedings governed by this act. Sec. 9. The provisions of this act shall extend to all actions in the courts of law or chancery, and to all suits for the recovery of any debt due to the state, or for any duty or revenue thereto belonging; to all actions for penalties and for- feitures; to all writs of mandamus and prohibition; to all informations in the nature of a quo warranto; to writs of scire facias, and the proceedings thereon. (J. & A. H 308, Hurd E. S. 1913, p. 54.) § 1257. Writs of error, amendable. Sec. 10. All writs of error, wherein there shall be any variance from the original record, or any other defect, may and shall be amended, and made agreeable to such record by the re- spective courts where such writs of error are or shall be made returnable. (J. & A. H 309, Hurd E. S. 1913, p. 54.) Oeal Examination op Witnesses § 1258. Oral examination — Preserving evidence. Sec. 86. Whenever in any suit or proceeding at law or in equity in any court of record, evidence shall be necessary concerning any fact which, according to law and the practice of the court may now be supplied by affidavit, the court may, in its discretion, require such evidence to be presented, wholly or in part, by oral examination of the witnesses in open court or, in equity cases,' before a master in chancery, upon notice to all parties not in de- fault, or their attorneys, and whenever such evidence is presented by oral examination, an adverse party shall have the right to cross-examination. Evidence so pre- sented may be preserved by bill of exceptions or certifi- cate of evidence. This section shall not apply to appli- cations for change of venue. ( J. & A. Tj 8623, Hurd E. S. 1913, p. 1872.) Evidence and Depositions § 1259. Depositions of resident witnesses, in chan- cery. Sec. 24. When the testimony of any witness, resid- hxg or being within this state, shall be necessary in any 1088 EQUITY PEACTICE suit in chancery in this state, the party wishing to use the same may cause the deposition of such witness to be talien before any judge, justice of the peace, clerk of a court, master in chancery, or notary public, without a commission or filing interrogatories for such purpose, on giving to the adverse party or his attorney ten days' notice of the time and place of taking the same, and one day in addition thereto (Sundays inclusive) for every fifty miles' travel from the place of holding the court to the place where such deposition is to be taken. If the party entitled to notice and his attorney resides in the county where the deposition is to be taken, five days' notice shall be sufiicient. (J. & A. H 5541, Hurd E. S. 1913, p. 1238.) § 1260. Of witness non-resident or more than one hun- dred miles distant — Soldier — Sailor — Dedimus. Sec. 26. When the testimony of any witness residing within this state more than one hundred miles from the place of hold- ing the court, or not residing in this state, or who is en- gaged in the military or naval service of this state or of the United States, and is out of this state, shall be neces- sary in any civil cause pending in any court of law or equity, in this state, it shall be lawful for the party wish- ing to use the same, on giving to the adverse party, or his attorney, ten days' previous notice, together with a copy of the interrogatories intended to be put to such witness, to sue out from the proper clerk's office a dedimus potes- tatem or commission, under the seal of the court, directed to any competent and disinterested person, as commis- sioner, or to any judge, master in chancery, notary pub- lic or justice of the peace of the county or city in which such witness may reside, or in case it is to take the testimony of a person engaged in such military service, "to any commissioned officer in the military or naval service of this state or the United States," authorizing and requiring him to cause such witness to come before him, at such time and place as he may designate and appoint, and faithfully to take his deposition, upon all such interrogatories as may be inclosed with or attached to said commission, both on the part of the plaintiff an,d ILLINOIS STATUTES AND RULES 1089 defendant, and none others; and to certify the same, when thus taken, together with the said commission and in- terrogatories, into the court in which such cause shall be pending, with the least possible delay. (J. & A. T[ 5543, Hurd R. S. 1913, p. 1238.) §1261. Notice by mailing or publication. Sec. 27. When the deposition of any witness is desired to be taken under the provisions of this Act, and the adverse party is not a resident of the county to which the suit is pending, or is in default, and no attorney has appeared for him in such cause, upon filing an affidavit of such fact and stating the place of residence of such adverse party, if known, or that upon diligent inquiry, his place of residence cannot be ascertained, the notice required by this act may be given by sending a copy thereof by mail, postage paid, addressed to such party at his place of residence, if known, or if not known, by posting a copy of such notice at the door of the court house where the suit is pending, or publishing the same in the nearest newspaper, and when interrogatories are required, filing a copy thereof with the clerk of the court ten days before the time of suing out such commission. ( J. & A. U 5544, Hurd R. S. 1913, p. 1239.) § 1262. Oral examination of non-resident witness. Sec. 28. "When a party shall desire to take the evidence of a non-resident witness, to be used in any cause pending in this state, the party desiring the same, or where notice shall have been given that a commission to take the tes- timony of a non-resident witness will be applied for, the opposite party, upon giving the other three days' notice in writing of his election so to do, may have a commission directed in the same manner as provided in section 26 of this Act, to take such evidence, upon interrogatories to be propounded to the witness orally; upon the taking of which each party may appear before the commission, in person or by attorney, and interrogate the witness. The party desiring such testimony shall give to the other the following notice of the time and place of taking the same, to-wit: ten days, and one day in addition thereto (Sun- days included) for every one hundred miles' travel from 1090 EQUITY PEACTICB the place of holding the court to the place where such deposition is to be taken. (J. & A. H 5545, Hurd R. S. 1913, p. 1239.) § 1263. Further examination of witness. Sec. 35. If it shall appear to the satisfaction of the court that any witness has not given full or proper answers to the in- terrogatories or cross-interrogatories accompanying the commission to take his testimony, or that a further ex- amination ought to be allowed to either party for the ends of justice, may allow another commission to issue to the same or other commissioner, to further examine the witness in such manner and upon such conditions and notice as the court shall direct. ( J. & A. H 5552, Hurd E. S. 1913 p. 1240.) § 1264. Witnesses before commissioners — Compelling attendance — Compelling answers. Sec. 36. Each and every commissioner [, J judge, justice of the peace, or clerk of court, master in chancery, notary public or other officer who may at any time be required to take deposi- tions in any cause pending in any of the courts of law or equity in this state, or by virtue of any commission issued out of any court of record in any other state, ter- ritory or country, shall have power and authority to issue subpoenas if necessary, to compel the attendance of all such witnesses as shall be named in the commission, or by the parties litigant where no commission is nec- essary, in the same manner as witnesses are directed to be subpoenaed in other cases, and any witness wilfully neglecting or refusing to obey any such subpoena, or refusing to testify, or to subscribe his deposition when correctly taken, the commissioner or officer issuing such subpoena, shall at once report in writing, the facts of such wilful refusal or neglect, accompanying the same with a copy of the commission or other authority received by him, together with a copy of the subpoena and the return of service thereof, and file the same, in the office of the clerk of the circuit court of such county, and thereupon, attachment shall issue, out of said court against such offending witness, returnable forthwith, be- fore the circuit court of such county if in term time, or ILLINOIS STATUTES AND RULES 1091 before any judge of said court if in vacation, wlio sliall hear and determine the matter in a summary way, and it appearing to the court that the neglect or refusal of such witness to appear or testify, or to subscribe such deposition as aforesaid, is wilful and without lawful ex- cuse, the court shall punish such witness by fine, and imprisonment in the county jail, or by fine or imprison- ment in the county jail, as the nature of the case may require, as is now, or as may hereafter be lawful for the court to do in cases of contempt of court. (J. & A. H 5553, Hurd R. S. 1913, p. 1240.) § 1265. Fees of witnesses before commissioner. Sec. 37. Every witness attending before any commissioner, judge, justice of the peace, clerk or other person author- ized to take depositions, as aforesaid, to be examined as aforesaid, shall be entitled to a compensation for his time and attendance and traveling expenses, at the same rate, for the time being, as is or shall be allowed by law to witnesses attending courts of record in this state ; and the party requiring such examination shall pay the ex- penses thereof, but may, if successful in the suit, be al- lowed for the same in the taxation of costs. (J. & A. 115554, Hurd E. S. 1913, p. 1241.) Peepetuating Testimony § 1266. Petition— Affidavit— Dedimus. Sec. 39. In all cases hereafter, where any person shall desire to per- petuate the remembrance of any fact, matter or thing, which may relate to the boundaries or improvements of land — name or former name of water-courses — the name or former name of any portion or district of country — re- garding the ancient customs, laws or usages of the in- habitants of any part of this country, as far as the same may relate to the future settlement of the land claims, or touching the marriage or pedigree of any per- son or persons, or any other matter or thing necessary to the security of any estate, real, personal or mixed, or any private right whatever, it shall be lawful for such person, upon filing a petition supported by affidavit, in the circuit court of the proper county, setting forth, brief- 1092 EQUITY PRACTICE ly and substantially, his interest, claim or title in or to the subject concerning which he desires to perpetuate evidence, the fact intended to be established, and the names of all other persons interested or supposed to be interested therein, and whether there are any persons in- terested therein whose names are unknown to the peti- tioner, and the name of the witness proposed to be ex- amined, to sue out from such court a dedimus potestatem or commission, directed to any competent and disinter- ested person as commissioner, or to any judge, commis- sioner of deeds, master in chancery, notary public, clerk of a court, or justice of the peace in the county in which such witness resides, or in which the testimony is to be taken, authorizing him or them to take the deposition of such witness. (J. & A. H 5556, Hurd E. S. 1913, p. 1241.) § 1267. On chancery docket — Designation of parties. Sec. 40. Such petition shall be docketed by the clerk, as other cases in equity : the petitioner being designated as plaintiff, and the persons stated to be interested, as afore- said, as defendants — the parties whose names are un- known being designated as ' ' unknown owners. " (J. & A. 1F5557, Hurd E. S. 1913, p. 1241.) § 1268. Several commissions may issue. Sec. 41. Sev- eral commissions may be issued, upon the same petition, to different commissioners or officers either within or without this state, to take the testimony of different witnesses, or witnesses residing in different places, or the same commissioners or officers may proceed from place to place to take the same. (J. & A. H 5558, Hurd E. S. 1913, p. 1241.) § 1269. Notice. Sec. 42. Before taking the testimony of a witness, the person suing out such commission shall give to each and every person known to be interested in the subject-matter of such testimony, or his attorney, or, if a minor, his guardian, or, if he has no guardian, or if his guardian is interested, to such guardian ad litem as shall be appointed by the court, or to his or her con- servator, if he or she has one, two weeks' notice, in writ- ing, of the time and place when and where the testimony will be taken, which notice shall state when and where ILLINOIS STATUTES AND RULES 1093 the petition was filed, the names of the parties and wit- nesses mentioned in the petition, and a short statement of the subject-matter concerning which the testimony is to be taken. ( J. & A. H 5559, Hurd R. S. 1913, p. 1241.) § 1270. Notice to parties who cannot be personally served. Sec. 43. Notice to non-resident parties, or such as cannot be found so as to be personally served, and to unknown owners, may be given in the same manner as is provided for notifying non-resident parties in suing out a commission to take testimony in a case pending. (J. & A. If 5560, Hurd R. S. 1913, p. 1241.) § 1271. Court may order notice. Sec. 44. When, in the opinion of the court, no sufficient provision is made by law for giving notice to parties adversely interested, the court may order such reasonable notice to be given as it shall deem proper. (J. & A. H 5561, Hurd R. S. 1913, p. 1241.) § 1272. Testimony, how taken, certified, returned and recorded. Sec. 45. Every person who may think himself interested in the subject of a deposition about to be taken, may attend, by himself or his attorney, at the time and place of taking such testimony, and may examine and cross-examine such deponent; and all such questions as may be proposed, together with the answers thereto by the witness, shall be reduced to writing in the English language, as near as possible in the exact words of such deponent, which said questions and answers, when re- duced to writing as aforesaid, shall be distinctly read over to the witness, and if found to be correct, shall be signed by him in the presence of the commissioner or officer before whom the same is taken, who shall thereupon administer an oath or affirmation to such witness, as to the truth of the deposition so taken as aforesaid, and shall annex at the foot thereof a certificate, subscribed by such commissioner or officer, stating that it was sworn to and signed by the deponent, and the time and place when and where the same was taken ; and all such deposi- tions, when thus taken, shall be carefully sealed up, and transmitted to the clerk of the circuit court of the county from which such dedimus shall have been issued, within 1094 EQUITY PRACTICE thirty days from the time of taking the same; who shall thereupon enter the same at large upon the records in his office, and shall certify on the back of such deposition that the same has been duly recorded, and return it to the person for whose benefit it shall have been taken. (J. & A. ^ 5562, Hurd E. S. 1913, p. 1242.) §1273. Deposition or copy as evidence — Limitation. Sec. 46. All depositions taken under the provisions of the seven preceding sections, or a certified copy of the record thereof, may be used as evidence in any case to which the same may relate, in the same manner and subject to the same conditions and objections as if it had been originally taken in the suit or proceeding in which it is sought to be used; and parties notified as "unknown owners," in the manner hereinbefore pro- vided, shall be bound to the same extent as other parties. (J. & A. II 5563, Hurd E. S. 1913, p. 1242.) Mastees in Chanceby § 1274. Who may appoint — Residence. Section 1. The several circuit courts may appoint in the respective coun- ties in their circuits a master in chancery ; the circuit court of Cook county, and the superior court of Cook county, may appoint for their respective courts as many masters in chancery as there are judges thereof. Masters in chan- cery shall be resident of the county for which they are appointed. (J. & A. H 7364, Hurd E. S. 1913, p. 1598.) § 1275. Term of office— Removal. Sec. 2. The tenure of office of masters in chancery shall be two years, but they may be removed from office by the court for which they are appointed, for good cause shown. (J. & A. 117365, Hurd E. S. 1913, p. 1598.) § 1276. Court to fill vacancy. Sec. 3. When a vacancy occurs in the office of master in chancery, the court shall fill the vacancy by appointment as soon thereafter as con- veniently may be. (J. & A. 117366, Hurd E. S. 1913, p. 1598.) § 1277. Bond — Oath. Sec. 4. Every master in chan- cery, before entering on the duties of his appointment, shall give bond, with security to be approved by the court, ILLINOIS STATUTES AND RULES 1095 and take and subscribe an oath of office; which bond and oath shall be filed with the clerk of the court making the appointment, and spread upon the record thereof. (J. & A. H 7367, Hurd E. S. 1913, p. 1599.) § 1278. Special master. Sec. 5. Whenever it shall hap- pen that there is no master in chancery in any county, or when such master shall be of counsel or of kin to either party interested, or otherwise disqualified or unable to act in any suit or matter, the court may appoint a special master to perform the duties of the office in all things con- cerning such suit or matter. (J. & A. H 7368, Hurd E. S. 1913, p. 1599.) § 1279. Powers of masters. Sec. 6. Masters in chan- cery, in their respective counties, shall have authority to take depositions, both in law and equity, to administer oaths, to compel the attendance of witnesses, take ac- knowledgments of deeds and other instruments in writing, and, in the absence from the county of the judge, to order the issuing of the writs of habeas corpus, ne exeat and in- junction, and perform all other duties which, according to the laws of this state and the practice of courts of chan- cery, appertain to the office. ( J. & A. T[ 7369, Hurd E. S. 1913, p. 1599.) § 1280. — May grant writs of certiorari. Sec. 7. Here- after masters in chancery in their respective counties, upon application in manner as now is provided by law, to be made to the proper judge, shall have power to grant and order the issuing of writs of certiorari, to remove causes from before justices of the peace into the proper court. (J. & A. H 7370, Hurd E. S. 1913, p. 1599.) § 1281. Power of successor. Sec. 8. When any master in chancery shall die, resign his office or be removed there- from, or remove from the county, and shall leave any business pertaining to his office unfinished, it shall be lawful for his successor in office to do any act or acts coming within the duties of the master, which may be necessary to the final completion of such unfinished busi- ness. (J. & A. ^ 7371, Hurd E. S. 1913, p. 1599.) § 1282. Fees. Sec. 9. Masters in chancery shall receive for their services such compensation as shall be allowed 1096 EQUITY PRACTICE by law, to be taxed as other costs. ( J. & A. Tf 7372, Hurd E. S. 1913, p. 1599.) § 1283. To report money not paid out. Section 1. Here- after it shall be the duty of each master in chancery in this state, on or before the third day of any regular term of the court by which he may have been appointed, to report in writing, verified by his affidavit, to such court all moneys which may have come to his hands by virtue of his office, from any source whatever, and which have not been paid out by the order or decree of said court. (J. & A. 11 7373, Hurd E. S. 1913, p. 1599.) § 1284. What report shall contain — Receipts. Sec. 2. Such report shall contain a statement in detail showing the title each cause or proceeding in said court, in con- sequence of which such money has come to the hands of such master in chancery, the amount derived from each cause or proceeding, and the names of the persons entitled to such money, and the amount due each ; and an itemized account of all notes, bonds, mortgages, trust deedg and other evidence of indebtedness, and on what account, and in what cause they were taken, and to whom they belong; and such master in chancery shall produce and exhibit to the court with his report, the money, or a certificate of deposit for the money, and notes, bonds, mortgages, trust deeds and other evidence of indebted- ness so itemized, and held by him, and it is hereby made the duty of the court to inspect them; said report shall also show what reason, if any exists, why an order or decree may not be made at the term when such report is submitted without jeopardizing the rights of the parties to such cause or proceeding, for the payment of the whole or a part of such money to the party or parties entitled thereto, and if a part only, how much and to whom ; and if at the same or any term subsequent to the submission of such report, an order or decree shall be made as here- inafter provided for the payment or other disposition of said money, or any part thereof, or of the notes, bonds, mortgages, trust deeds and evidence of indebtedness, then, and in that case the report to be submitted at the term of court next succeeding such order or decree shall ILLINOIS STATUTES AND RULES 1097 show in what manner such order or decree has been executed, or if the same remains unexecuted in whole or in part, the reason therefor. The master in chancery shall take duplicate receipts for all money paid out, or for any notes, bonds, mortgages, trust deeds, or other evi- dence of indebtedness he may be ordered by the court to distribute, and file with his report one of said receipts, the other to be retained by him. (J. & A. H 7374, Hurd E. S. 1913, p. 1599.) § 1285. Duty of court in relation to money. Sec. 3. It shall be the duty of the court upon the submission of such report, or so soon thereafter as may be practicable, to make such interlocutory or final orders or decrees in rela- tion to the payment or other disposition of the moneys embraced therein, or any portion of the same, as may ap- pear to be consistent with and not to jeopardize any rights of any party or parties in interest. (J. & A. T[ 7375, Hurd E. S. 1913, p. 1600.) § 1286. Removal from office. Sec. 4. The failure of any master in chancery to submit a report as herein required, or to comply with any order or decree of the court in relation to the whole or any part of the moneys embraced therein, without a sufficient reason for such failure, to be determined by the court, shall be deemed and taken as a good and sufficient cause for his removal from office; and any person aggrieved, his agent or attorney, may submit to such court a motion requiring such master in chancery to show cau'se why he should not be so removed; which motion shall be heard and determined by said court, and such action taken thereon as in the judgment of said court may be deemed proper. ( J. & A. H 7376, Hurd E. S. 1913, p. 1600.) Ne Exeat § 1287. When writ may issue. Section 1. "Writs of ne exeat republica may hereafter be granted, as well in cases where the debt or demand is not actually due, but exists fairly and bona fide in expectancy at the time of making application, as in cases where the demand is due; and it shall not be necessary, to authorize the granting of 1098 EQUITY PRACTICE such writ of ne exeat, tliat the applicant should show that his debt or demand is purely of an equitable character, and only cognizable before a court of equity. (J. & A. 117607, Hurd R. S. 1913, p. 1669.) § 1288. In favor of co-obligors or co-debtors. Sec. 2. In case of joint, or joint and several obligors or debtors, if one or more of them be about to remove without the juris- dictional limits of this state, taking their property with them, leaving one or more co-obligors or co-debtors bound with them for payment of any sum of money, or for the delivery of any article or property, or for the conveyance of land at a certain time, which time shall not have arrived at the time of such intended removal, such co- obligor, or co-debtor who remains shall be entitled, upon application, to a writ of ne exeat, to compel the co- obligor or co-debtor who is about to remove to secure the payment of his part of the sum to be paid, or of the de- livery of the property, or to convey, or to join in the conveyance of the land. Also, in cases of security, the writ of ne exeat may issue, on application of a security, against the principal or co-security, when the obligation or debt shall not be yet due, and the principal or co- security is about removing out of the state. (J. & A. TI7608, Hurd E. S. 1913, p. 1669.) § 1289. What courts may issue. Sec. 3. The superior court of Cook county, and the circuit courts in term time, and any judge thereof in vacation, shall have power to grant writs of ne exeat. ( J. & A. Tl 7609. Hurd E. S. 1913, p. 1669.) § 1290. Master in chancery may order. Sec. 4. When no judge authorized to issue writs of ne exeat is present in the county, or being present, is unable or incapacitated to act, a master in chancery in such county may order the issuing of such writs. (J. & A. T[ 7610, Hurd E. S. 1913, p. 1669.) § 1291. Bill or petition necessary — Affidavit — Bond — Suit on. Sec. 5. No writ of ne exeat shall be granted but upon bill or petition filed, and affidavit to the truth of the allegations therein contained. Upon the granting of any such writ, the court, judge or master shall indorse or cause ILLINOIS STATUTES AND EULBS 1099 to be indorsed upon the bill or petition, in what penalty bond and security, shall be required of defendant. Said court, judge or master shall also take or cause to be taken of the complainant, before the writ shall issue, bond with good and sufficient surety, in such sum as the court, judge or master shall deem proper, conditioned that the said complainant will prosecute his bill or petition with effect, and that he will reimburse to the defendant such damages and costs as he shall wrongfully sustain by occasion of the said writ. If any defendant to such writ of ne exeat shall think himself aggrieved, he may bring suit on such bond; and if, on trial, it shall appear that such writ of ne exeat was prayed for without a just cause, the person injured shall recover damages, to be assessed as in other cases on penal bonds. (J. & A. 1[ 7611, Hurd E. S. 1913, p. 1669.) § 1292. Vacation, clerk directed to issue. Sec. 6. When a writ of ne exeat is granted by a judge or master in vaca- tion, he shall direct the clerk of the court to which the writ is to be returnable to issue the same. (J. & A. T[ 7612, Hurd E. S. 1913, p. 1670.) § 1293. Returnable where. Sec. 7. All writs of ne exeat shall be returnable into the court out of which they issue. (J. & A. 1[ 7613, Hurd E. S. 1913, p. 1670.) § 1294. Form of writ — Bond by defendant — Temporary departure no breach. Sec. 8. The writ of ne exeat shall contain a summons for the defendant to appear in the proper court, and answer the petition or bill, and upon the writ being served upon the said defendant, he shall give bond, with surety in the^um indorsed on such writ, condi- tioned that he will not depart the state without leave of the said court, and that he will render himself in execution to answer any judgment or decree which the said court may render against him; and in default of giving such security, he may be committed to jail, as in other cases, for the want of bail. No temporary departure from the state shall be considered as a breach of the condition of the said bond, if he shall return before personal appear- ance shall be necessary to answer or perform any judg- Whitehouse E. P. Vol. 11—14 1100 EQUITY PRACTICE ment, order or decree of said court. (J. & A. 1j 7614, Hurd R. S. 1913, p. 1670.) § 1295. Surrender of defendant by surety. Sec. 9. The surety in any bond for the defendant, as aforesaid, may, at any time before the said bond shall be forfeited, sur- render the said defendant, in exoneration of himself, in the same manner that bail may surrender their principal, and obtain the same discharge. (J. & A. H 7615, Hurd R. S. 1913, p. 1670.) § 1296. Proceedings on return of writ. Sec. 10. On the return of the writ of ne exeat, if the same shall have been duly served, the court shall proceed therein as in other cases in chancery, if the time of performance of the duty or obligation of the defendant has expired; if not, then the proceedings shall be stayed until it has expired. (J. & A. H 7616, Hurd R. S. 1913, p. 1670.) § 1297. Quashing or setting aside writ. Sec. 11. Noth- ing contained in the preceding section shall prevent the court from proceeding at any time to determine whether the writ ought not to be quashed or set aside. (J. & A. H 7617, Hurd R. S. 1913, p. 1670.) Oral Submission § 1298. Oral submission of controversy — ^Agreement — Hearing — Judgment — No appeal. Sec. 26. Any two or more persons or corporations may appear in person or by attorney, in any circuit court, or in the superior court of Cook county, and submit to any judge thereof, or to any three judges thereof who will consent to hear the same, orally and without formal pleadings, any matter in controversy, or any suit or proceeding then pending at law or in chancery, having first entered into a written agreement, to be entered of record, and substantially in the following form, to-wit: In the circuit court of county (title of cause, if pending). First. We (here insert names) do hereby mutually agree to submit to Judge (here insert name or names) of said court certain matters in controversy ILLINOIS STATUTES AND RULES 1101 between us (or in the above entitled cause) for his (or their) determination, without a jury to hear the same forthwith, and he (or they, or any two of them) to enter the judgment or decree of the court therein within (here insert number of days or "forthwith") days after such hearing is concluded. Second. That said judgment or decree shall contain a statement as to what matters in controversy were (or that the cause was) so submitted, and such statement thereof shall be conclusive. Third. That no further record except of this agreement and of such judgment or decree shall be made as to the matters in controversy (or cause) so submitted, or as to the proceedings had on the hearing thereof. Fourth. That such judgment or decree may be en- forced in like manner as other judgments and decrees of such court. Fifth. That we, each to the other, hereby waive all right of appeal from such judgment or decree, and release all errors that may intervene in the hearing of the matters (or cause) so submitted, and in the entering up of the judgment or decree therein, and agree that this release of errors may be pleaded in bar of any writ of error that may be sued out as to such judgment or decree. Witness our hands and seals this day of A. D. (Seal) (Seal) Such agreement shall be signed by the parties in person, or by [a] duly authorized attorney in fact, and when so executed shall be of binding force upon the parties thereto, in all the courts of this State. It shall be the duty of such judge or judges to proceed, and in a sum- mary manner to hear and determine the matters (or cause) so submitted, and he, or if submitted to three judges, any two of them, shall enter a judgment or decree therein, within the time fixed in said agreement, which said judgment or decree shall be final and conclusive and may be enforced in like manner as other judgments or 1102 EQUITY PEACTICB decrees of such court; but no appeal shall be allowed therefrom. (J. & A. H 8563, Kurd R. S. 1913, p. 1862.) Costs §1299. In chancery — Dismissal of bill — Other cases discretionary. Sec. 18. Upon the complainant dismissing his bill in equity, or the defendant dismissing the same for want of prosecution, the defendant shall recover against the complainant full costs; and in all other cases in chancery, not otherwise directed by law, it shall be in the discretion of the court to award costs or not ; and the payment of costs, when awarded, may be compelled by execution. (J. & A. U 2732, Hurd E. S."^1913, p. 630.) Misconception or Remedy § 1300. Transfer of suit where party misconceives remedy. Sec. 40. If the party commencing any civil suit or proceeding shall have misconceived his remedy, he may be permitted, in the discretion of the court, and on payment of all accrued costs and such clerk 's advance fees as are required for the commencement of the suit in the proper form, by proper amendments, in the same pro- ceeding, to transfer the suit, if at law, to chancery, and if in chancery, to the law docket of the court; and when so transferred, the suit shall proceed as though originally commenced on such side of the court. (J. & A. H 8577, Hurd R. S. 1913, p. 1865.) Abatement § 1301. Chancery — Death of part where suit does not survive. Sec. 17. "When there are several complainants or defendants in a suit or proceeding in chancery, and any of them die, and the cause of action does not survive to the surviving complainant or against the surviving defendant, and any other persons become interested therein in consequence of such decease, such suit or pro- ceeding shall, by reason of such death, be abated only with respect to such deceased party; and the person or legal representative so becoming interested may be made a party to such suit or proceeding in the same manner ILLINOIS STATUTES AND RULES 1103 as in the case of the death of a sole complainant or defend- ant; or the suit or proceeding may be prosecuted by the surviving complainant against the surviving defendant without reviving the same in favor of or against the person or legal representative so becoming interested therein; but in the latter case such interested person or legal representative, not made a party, shall not be bound by any order or decree made in the case. (J. & A. H 17, Hurd R. S. 1913, p. 3.) Injunctions § 1302. Who may grant. Section 1. The superior court of Cook county, and the circuit courts in term time, and any judge thereof in vacation, shall have power to grant writs of injunction. (J. & A. H 6161, Hurd E. S. 1913, p. 1366.) § 1303. — When master may grant. Sec. 2. When no judge authorized to grant writs of injunction is present in the county, or being present, is unable or incapacitated to act, a master in chancery in such county may order the issuing of such writ. ( J. & A. H 6162, Hurd E. S. 1913, p. 1366.) § 1304. Notice of application. Sec. 3. No court, judge or master, shall grant an injunction without previous no- tice of the time and place of the application having been given to the defendants to be affected thereby, or such of them as can conveniently be served, unless it shall appear, from the bill or affidavit accompanying the same, that the rights of the complainant will be unduly preju- diced if the injunction is not issued immediately or with- out such notice. ( J. & A. H 6163, Hurd E. S. 1913, p. 1366.) § 1305. To stay suit or judgment — Venue — Where served. Sec. 4. "When an injunction shall be granted to stay a suit or judgment at law, the proceeding shall be had in the county where the judgment was obtained, or the suit is pending, but the writ may be sent in the first in- stance into any county in the state where the defendant resides. (J. & A. 1[ 6164, Hurd E. S. 1913, p. 1366.) § 1306. Writ releases errors. Sec. 5. Every injunction, 1104 EQUITY PRACTICE when granted, shall operate as a release of all errors in the proceedings at law that are prayed to he enjoined. (J. & A. H 6165, Hurd R. S. 1913, p. 1366.) § 1307. Justice's judgment — Not enjoined, when. Sec. 6. No writ of injunction shall he granted to stay proceed- ings under a judgment ohtained hefore a justice of the peace for a sum not exceeding $20, besides the costs. (J. & A. 11 6166, Hurd R. S. 1913, p. 1366.) § 1308. Part of judgment enjoined. Sec. 7. Only so much of any judgment at law shall be enjoined as the com- plainant shall show himself equitably not bound to pay, and so much as shall be sufficient to cover costs. (J. & A. H 6167, Hurd R. S. 1913, p. 1366.) § 1309. Where judgment enjoined, bond — Damages on dissolution. Sec. 8. Before an injunction shall issue to enjoin a judgment, the complainant shall give bond to the plaintiff therein, in double the amount of such judgment, with sufficient surety approved by the court, judge or mas- ter, conditioned for the payment of all moneys and costs due to the plaintiff in the judgment, and such damages as may be awarded against the complainant in case the in- junction is dissolved. If the injunction be dissolved in the whole or in part, the complainant shall pay, exclusive of legal interest and costs, such damages as the court shall award, not exceeding ten per centum, on such part as may be released from the injunction. (J. & A. If 6168, Hurd R. S. 1913, p. 1366.) § 1310. In other cases, what bond. Sec. 9. In all other cases, before an injunction shall issue, the complainant shall give bond in such penalty, and upon such condition and with such security as may be required by the court, judge or master granting or ordering the injunction: Provided, bond need not be required when, for good cause shown, the court, judge or master is of the opinion that the injunction ought to be granted without bond. (J. & A. 116169, Hurd R. S. 1913, p. 1366.) § 1311. In other cases, who may take bond. Sec. 10. The bond in any case may be entered into before the clerk of the court from which the writ is to be issued — ^the court, judge or master granting or ordering the injunction hav- ILLINOIS STATUTES AND RULES 1105 ing first approved the security — or it may be entered into before such court, judge or master. (J. & A. 116170, Hurd E. S. 1913, p. 1367.) § 1312. — Where filed. Sec. 11. All bonds required by this Act shall be filed with the clerk of the court to which the writ is returnable, before such writ shall issue. (J. & A. ^6171, Hurd R. S. 1913, p. 1367.) § 1313. Dissolution — Suggestion of damages — Assess- ment — Execution — Suit, on bond. Sec. 12. In all cases where an injunction is dissolved by any court of chancery in this state, the court, after dissolving such injunction, and before finally disposing of the suit, upon the party claiming damages by reason of such injunction suggest- ing, in writing, the nature and amount thereof, shall hear evidence and assess such damages as the nature of the case may require, and to equity appertain, to the party damni- fied by such injunction, and may award execution to collect the same: Provided, a failure so to assess damages shall not operate as a bar to an action upon the injunc- tion bond. (J. & A. TI 6172, Hurd E. S. 1913, p. 1367.) § 1314. Violation of injunction — Proceedings in vaca- tion. Sec. 13. Upon satisfactory proof being made in va- cation that an injunction has been violated, the judge granting the same, or the judge of the court from which the writ was issued, may issue an attachment and cause the party violating the injunction to be brought before him. Upon his being brought before the said judge, un- less he shall disprove or purge the said contempt, the said judge may, in his discretion, commit him to jail until the sitting of the court in which the said injunction is pend- ing, or take bail for his appearance in the said court at the next term thereof, to answer for the said contempt, and to abide the order of the court thereon. (J. & A. 116173, Hurd E. S. 1913, p. 1367.) § 1315. Dissolution or modification in vacation. Sec. 14. A defendant may move to dissolve or modify an injunc- tion in vacation, either for want of equity in the bill or upon the coming in of the answer, and the judge of the court from which the injunction was issued may hear and determine the motion upon five days' notice of the hear- 1106 EQUITY PRACTICE ing having been given to the complainant or his solicitor. (J. & A. It 6174, Hurd E. S. 1913, p. 1367.) § 1316. Motion to dissolve. Sec. 15. A motion to dis- solve an injunction may be made at any time upon answer, or for want of equity on the face of the bill. (J. & A. 11 6175, Hurd E. S. 1913, p. 1367.) § 1317. — Evidence. Sec. 16. Upon a motion to dis- solve an injunction after answer, the court shall not be bound to take the answer as absolutely true, but shall de- cide the motion upon the weight of the testimony. (J. & A. H 6176, Hurd E. S. 1913, p. 1367.) § 1318. — Affidavits. Sec. 17. The complainant may support his bill and the defendant may support his answer by affidavits filed with the same, which may be read in evidence on the hearing of the motion to dissolve the in- junction. (J. & A. IT 6177, Hurd E. S. 1913, p. 1367.) § 1319. — Continuance for evidence to support bill. Sec. 18. If, after a motion is made to dissolve an injunc- tion, the complainant in the bill will satisfy the court, by his own affidavit or that of any disinterested person, that the answer or any material part thereof (to be specified in such affidavit) is untrue, and that he has testimony which will disprove the answer, or such material part thereof, which he can produce at the next term of the court or at an earlier day, and that he has had no opportunity to pro- cure such testimony since the coming in of the answer, the court may grant a continuance of such motion until the next term, or until such testimony can be procured. (J. & A. H 6178, Hiird E. S. 1913, p. 1367.) § 1320. Motion to dissolve — Testimony to be by deposi- tion — Exception. Sec. 19. The testimony of witnesses to be used upon such motion, except such as may be con- tained in the affidavit filed with the bill or answer, shall be depositions in writing, which shall be taken in the same manner as other testimony in cases in chancery. (J. & A. ^ 6179, Hurd E. S. 1913, p. 1367.) § 1321. Depositions competent at final hearing. Sec. 20. Depositions taken upon a motion to dissolve an injunc- tion may be read in the final hearing of the cause. (J. & A. 116180, m-ird E. S. 1913, p. 1367.) ILLINOIS STATUTES AND RULES 1107 § 1322. Appeal, when supersedeas. Sec. 21. No appeal from a decree dissolving an injunction shall have the ef- fect to continue in force the injunction unless the appeal is prayed at the entering of such decree, and the court allowing the same shall so order, or unless the party pray- ing the appeal shall, within ten days after the appeal is allowed, procure from the supreme court, if in session, or a judge thereof if in vacation, an order directing that the appeal shall have the effect to continue such injunc- tion in force; and no such order shall be granted except for good cause appearing in the record, nor when the bill is dismissed by the complainant. The supreme court, or a judge thereof, may for good cause extend the time for procuring such order. (J. & A. H 6181, Hurd E. S. 1913, p. 1368.) § 1323. — Further bonds. Sec. 22. The court or judge granting the order for the continuance in force of any such injunction may require, as a condition of granting the same, such further bond and security, to be filed with the clerk of the supreme court, as may be deemed equit- able. (J. & A. H 6182, Hurd R. S. 1913, p. 1368.) § 1324. Injunction on Sunday. Sec. 23. When an appli- cation shall be made on a Sunday for a writ of injunction, and there shall be filed with the bill an affidavit of the complainant, or his, her or their agent or attorney, stat- ing that the benefits of an injunction will be lost or endangered, or irremediable damage occasioned unless such writ be immediately issued, and giving the reasons for such statement, then it shall be lawful for any officer who is authorized by the law of this state to grant writs of injunction, if it appears to him from such affidavit that the benefits of an injunction will be lost or en- dangered, or irremediable damage occasioned unless such writ be immediately issued, and if the complainant other- wise be entitled to such writ under the law, to grant a writ of injunction on a Sunday; and it shall be lawful for the clerk to issue, and for the sheriff or coroner to serve such writ of injunction on a Sunday as on any other day, and all affidavits and bonds made and pro- ceedings had in such case shall have the same force and 1108 EQUITY PRACTICE effect as if made or had on any other day. (J. & A. 116183, Hurd E. S. 1913, p. 1368.) Ebceivees § 1325. Appointment of receiver — Bond by party apply- ing — ^When receiver may be appointed without bond. Sec- tioi^ 1. Before any receiver shall be appointed the party making the application shall give bond to the adverse party in such penalty as the court or judge may order and with security to be approved by the court or judge, conditioned to pay all damages including reasonable attorneys' fees sustained by reason of the appointment and acts of such receiver, in case the appointment of such receiver is revoked or set aside ; provided, that bond need not be required, when for good cause shown, and upon notice and full hearing, the court is of opinion that a receiver ought to be appointed without such bond. (J. & A. IT 2743, Hurd E. S. 1913, p. 169.) § 1326. Bond as substitute for appointment of receiver — Removal of receiver upon giving bond. Sec. 2. On an application for the appointment of a receiver, the court or judge may, in lieu of appointing a receiver, permit the party in possession to retain such possession upon giving bond with such penalty and with such security and upon such condition as the court or judge may order and approve; and the court may remove a receiver and restore the property to the possession of the party from whom it was taken upon the giving of a like bond. (J. & A. U 2744, Hurd E. S. 1913, p. 169.) § 1327. Suits against receivers without leave of court. Section 1. Every receiver or manager of any property ap- pointed by any court of the state of Illinois may be sued in respect of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed; but such suit shall be subject to the general equity jurisdiction of the court in which such receiver or manager was appointed, so far as the same shall be necessary to the ends of justice. (Laws 1913, p. 254.) ILLINOIS STATUTES AND RtJLES 1109 §1328. Judgment in vacation — Reviewable at next term. Sec. 30. When a cause or matter is taken under ad- visement by a judge of a circuit court, or of the superior court of Cook county, and the cause or matter is decided in vacation, the judgment, decree or order therein may be entered of record in vacation, but such judgment, de- cree or order therein may be entered of record in vaca- tion* but such judgment, decree or order may, for good cause shown, be set aside, or modified, or excepted to, at the next term of the court, upon motion filed on or before the second day of the term, of which motion the opposite party or his attorney shall have reasonable no- tice. If not so set aside or modified, it shall thereupon become final. (J. & A. T[ 3028, Hurd E. S. 1913, p. 692.) § 1329. Judgment in vacation — Stipulation — Lien. Sec. 31. If it is stipulated, of record, that a judgment, decree or order so entered of record shall be final, then such judg- ment, decree or order shall have the same force and effect as if it had been entered at the term preceding the time it is entered, subject to the right of appeal or writ of error : Provided, it shall not take effect as a lien, except from the date of the entry thereof. ( J. & A. H 3029, Hurd E. S. 1913, p. 692.) § 1330. Powers in vacation. Sec. 32. The several judges of said courts shall have power in vacation to hear and determine motions to dissolve injunctions, stay or quash executions, appoint or discharge receivers upon such notice as may be fixed by the court, to make all neces- sary orders to carry into effect any decree previously entered, including the issuance of necessary writs there- for, to order the issuance of writs of certiorari, to permit amendments in any process, pleading, or proceeding in law or equity. Any such order so made shall be signed by the judge making it, and filed and entered of record by the clerk of the court in which the proceeding is had, and from the date of such filing' shall have like force and effect as if made at a regular term of such court. The pendency of a term of court in another county than that in which the suit is pending, or about to be com- menced by the same judge, shall not prevent the grant- * The superfluous words shown in italics are in the act. 1110 EQUITY PRACTICE ing of sucli order. (J. & A. 113030, Hurd E. S. 1913, p. 692.) § 1331. Notice. Sec. 33. No such order shall be granted in vacation, unless the party applying therefor shall give the opposite party or his attorney of record reasonable notice of his intended application. (J. & A. H 3031, Hurd K. S. 1913, p. 693.) Paetition § 1331a. Between co-tenaJits — By bill or petition. Sec- tion 1. When land, tenements or hereditaments are held in joint tenancy, tenancy in common or coparcenary, whether such right or title is derived by purchase, devise or descent, or whether any or all of the claimants are minors or of full age, any one or more of the persons interested therein may compel a partition thereof by bill in chancery as heretofore, or by petition in the circuit court of the proper county, or if the proceeding is in the county of Cook, in the circuit court or superior court of said county. (J. & A. H 8314, Hurd E. S. 1913, p. 1818.) § 1332. Venue. Sec. 2. The petition may be filed in the county where the premises, or some part thereof, is situated. (J. & A. T[ 8315, Hurd E. S. 1913, p. 1818.) § 1333. Infants — Lunatics — Suits by. Sec. 3. Infants may petition by guardian, or next friend, and other per- sons under guardianship by their conservators. (J. & A. H 8316, Hurd E. S. 1913, p. 1818.) § 1334. Such persons as defendants. Sec. 4. When an infant or person under guardianship is a defendant, he may appear by his guardian or conservator, or the court may appoint a guardian ad litem for such person, and compel the person so appointed to act. (J. & A. T[ 8317, Hurd E. S. 1913, p. 1818.) § 1335. Form and contents of petition. Sec. 5. The petition shall particularly describe the premises sought to be divided, and shall set forth the interests of all parties interested therein, so far as the same are known to the petitioners, including tenants for years, for life, by curtesy or in dower, and of all persons entitled to the reversion, remainder or inheritance, and of every person ILLINOIS STATUTES AND RULES 1111 who, upon any contingency, may be or become entitled to any beneficiary interest in the premises, so far as the same are known to the petitioners, and shall pray for the division and partition of the premises according to the respective rights of the parties interested therein, or that if a division and partition of the same cannot be made without manifest prejudice to the owners, a sale thereof shall be made, and the proceeds divided accord- ing to the respective rights of the parties, and such peti- tion shall be verified by affidavit. (J. & A. H 8318, Hurd E. S. 1913,p. 1818.) § 1336. All persons interested should be made parties. Sec. 6. Every person having any interest, whether in possession or otherwise, and who is not a petitioner, shall be made a defendant to such petition. (J. & A. TI 8319, HurdE. S. 1913, p. 1819.) § 1337. Unknown owners — Contingent interests. Sec. 7. When there are any persons interested in the premises whose names are unknown, or the share or quantity of interest of any of the parties is unknown to the petitioner, or where such share or interest shall be uncertain or con- tingent, or the ownership of the inheritance shall depend upon an executory devise, or the remainder shall be con- tingent, so that such parties cannot be named, the same shall be so stated in the petition. (J. & A. H 8320, Hurd E. S. 1913, p. 1819.) § 1338. Unknown owners — How described. Sec. 8. All persons interested in the premises of which partition is sought to be made according to the provisions of this chapter, whose names are unknown, may be made parties to such petition by the name and description of unknown owners of the premises, or as the unknown heirs of any person who may have been interested in the same. (J. & A. 118321, Hurd E. S. 1913, p. 1819.) § 1339. Service as in chancery. Sec. 9. The defend- ants to any such petition shall be summoned in the same manner as defendants in suits in chancery. (J. & A. H 8322, Hurd E. S. 1913, p. 1819.) § 1340. Notice to unknown owners. Sec. 10. Unknown owners, or parties in interest, of the premises, and the 1112 EQUITY PRACTICE unknown heirs of any such persons, may be notified by advertisement as in cases in chancery. (J. & A. H 8323, Hurd E. S. 1913, p. 1819.) § 1341. Notice by publication and mail. Sec. 11. When it shall appear by affidavit filed, as in cases in chancery, that any defendant resides or has gone out of this state, or upon due inquiry cannot be found, or is concealed within this state so that process cannot be served on him, and the affiant shall state the place of residence of such defendant, if known, or that upon diligent inquiry his place of residence cannot be ascertained, he may be noti- fied in the same manner as in such case in chancery. (J. & A. II 8324, Hurd E. S. 1913, p. 1819.) § 1342. Service by copy on non-residents. Sec. 12. Non- resident defendants may be served by a copy of the peti- tion in the same manner that such defendants in chancery may be served by a copy of the bill of complaint, and the service thereof may be proved as in such case pro- vided. (J. & A. 11 8325, Hurd E. S. 1913, p. 1819.) § 1343. Answer under oath. Sec. 13. The petitioner may in his petition require the defendants or any of them to answer his petition on oath, in which case the answer shall have the same effect as an answer in chancery under oath. (J. & A. U 8326, Hurd E. S. 1913, p. 1819.) § 1344. Interpleader. Sec. 14. During the pendency of any such suit any person claiming to be interested in the premises to be assigned or aparted may appear and answer the petition, and assert his or her rights, by way of interpleader ; and the court shall decide upon the rights of all persons appearing as aforesaid, as though they had been made parties in the first instance. (J. & A. IT 8327, Hurd E. S. 1913, p. 1819.) § 1345. Judgment must declare rights of parties. Sec. 15. The court shall ascertain and declare the rights, titles and interest of all the parties to such suit, the petitioners as well as the defendants, and shall give judg- ment according to the rights of the parties. (J. & A. H 8328, Hurd E. S. 1913, p. 1819.) § 1346. Appointment of commissioners. Sec. 16. The court, when it shall order a partition of any premises to ILLINOIS STATUTES AND RULES 1113 be made, under tlie provisions of this Act, shall appoint three commissioners, not connected with any of the parties, either by consanguinity or affinity, and entirely disinterested, to make partition of the premises. (J. & A. H 8329, Hurd R. S. 1913, p. 1819.) § 1347. Oath of commissioners. Sec. 17. Such commis- sioners shall each take and subscribe an oath or affirma- tion fairly and impartially to make partition of the prem- ises, according to the rights and interests of the parties, as declared by the judgment of the court, if the same can be done consistently with the interests of the parties, or if the same cannot be so divided without manifest preju- dice to the parties in interest, that they will fairly and impartially appraise the value of each piece or parcel of the premises sought to be divided, and a true report make to the court. (J. & A. Ij 8330, Hurd E. S. 1913, p. 1819.) § 1348. Duty of commissioners — Mode of partition. Sec. 18. The commissioners shall go upon the premises, and if the same are susceptible of division they shall make partition thereof, allotting the several shares to the respective parties, quality and quantity relatively con- sidered, according to their respective rights and interests as adjudged by the court, designating the respective shares by metes and bounds, or other proper description, and they may employ a surveyor with necessary assist- ants to aid therein; and if the premises are not suscept- ible of division without manifest prejudice to the parties in interest, they shall value each piece or parcel sepa- rately. (J. & A. H 8331, Hurd E. S. 1913, p. 1820.) § 1349. Report of commissioners. Sec. 19. The com- missioners shall make report, in writing, signed by at least two of them, showing what they have done, and if they shall have made a division, describing the premises divided and the shares of each party by metes and bounds or other proper description; or if they find that the lands cannot be divided, they shall so report, and shall report their valuation of each piece or tract separately. (J. & A. ^ 8332, Hurd E. S. 1913, p. 1820.) .§ 1350. Control and removal of commissioners. Sec. 20. The commissioners shall, at all times, be subject to the 11L4 EQUITY PRACTICE direction of the court ; and any one or more of them may, before the final confirmation of the report, be removed, and others appointed in their stead. (J. & A. H 8333, Hurd E. S. 1913, p. 1820.) § 1351. When land in several counties. Sec. 21. If the lands lie in different counties, the court may appoint separate sets of commissioners for each county, or one set for all of them, as may seem most for the benefit of the parties interested. (J. & A. 118334, Hurd E. S. 1913, p. 1820.) § 1352. Dower — Homestead may be set off. Sec. 22. If dower has not been allotted to the person entitled thereto, or the homestead set off, in case any party to the suit is entitled to an estate of homestead in the premises, or any part thereof, such dower may be allotted and such homestead set off by the commissioners; and if the court shall so direct, the premises so allotted or set off may be partitioned among the claimants, subject thereto. (J. & A. U 8335, Hurd E. S. 1913, p. 1820.) § 1353. Shares together or in severalty. Sec. 23. Sev- eral parties interested in the premises may, if they shall so elect, have their shares set off together or in severalty. (J. & A. H 8336, Hurd E. S. 1913, p. 1820.) § 1354. Mortgages — Attachments — Liens — How affected. Sec. 24. A person having a mortgage, attach- ment, or other lien on the share of a part owner, shall be concluded by the judgment in partition, so far as it respects the partition and the assignment of the shares, but his lien shall remain in full force upon the part assigned to or left for such part owner. (J. & A. H 8337, HurdE. S. 1913,p. 1820.) § 1355. Person evicted by paramount title may have partition of residue. Sec. 25. If a person to whom any share has been allotted is evicted by a person who, at the time of the partition, had a title older and better than the title of those who were parties to the suit, the person so evicted may have a new partition of the residue as if no partition had been made, if such new partition can be justly made, or he may have contribution from the others, so as to make his share just and equal with the others. ILLINOIS STATUTES AND RULES 1115 according to his rights in the premises. (J. & A. H 8338, Hurd E. S. 1913, p. 1820.) § 1356. When premises may be sold. Sec. 26. When the whole or any of the premises sought to be partitioned cannot be divided without manifest prejudice to the owners thereof, and the commissioners appointed to divide the same shall so report, the court shall order the premises so not being susceptible of division to be sold at public vendue, upon such terms and notice of sale as the court shall direct. (J. & A. H 8339, Hurd E. S. 1913, p. 1820.) § 1357. No sale for less than two-thirds of valuation — Revaluation. Sec. 27. But no piece or parcel of the premises shall be sold, if it will not bring at least two- thirds as much as it shall have been valued by the com- missioners, unless the other pieces will, at the same time, sell for enough to make the total amount of the sales equal to two-thirds the total amount of the valuation of all premises to be sold : Provided, that if it shall appear to the court that any of the premises will not sell for two-thirds the amount of the valuation thereof, the court may appoint other commissioners to revalue siich prem- ises, and their valuation shall be taken instead of the valuation of the commissioners first appointed. (J. & A. H 8340, Hurd E. S. 1913, p, 1820.) § 1358. Terms of sale. Sec. 28. The court may direct the sale to be made for cash or on such credit as may be deemed most for the interest of all the parties. (J. & A. If 8341, Hurd E. S. 1913, p. 1820.) § 1359. Report of sale — Exceptions — Order. Sec. 29. The master, special commissioner or other officer making such sale shall, within ten (10) days thereafter, file report of his doings in the matter in the office of the clerk of the court decreeing such sale. If the said court be then in session, the court may, in its discretion, at once approve such report and confirm the sale reported, if no excep- tions to said report have been filed, or, if exceptions to said report have been filed, may, in its discretion, at once proceed to hear such exceptions and sustain or over- rule the same. If the said court shall not be in session Whitehouse E. P. Vol. n— 15 1116 EQUITY PRACTICE when said report is filed with said clerk then any person interested therein may, within twenty (20) days after the filing of said report, file exceptions thereto. In such case no action shall be taken thereon until the next succeeding term of the court. If no exceptions to said report are filed in vacation, within said twenty (20) days, the said report shall be presented by the officer or other person making such sale, to the judge of the court, who shall examine the same and shall have the power, in vacation, to make such order in reference to the approval thereof as he shall deem proper. ( J. & A. 1[ 8342, Hurd E. S. 1913, p. 1821.) §1360. Conveyance — ^Made on confirmation — Effect. Sec. 30. Upon the confirmation of the report the master, special commissioner or other officer making the sale, or some person specially appointed thereto, shall execute and deliver to the purchaser or purchasers of the prem- ises sold, proper conveyances thereof, taking, in case of sale on credit, security as required by the decree; which conveyances shall operate as an effectual bar against all parties and privies to said proceedings and all persons claiming under them. ( J. & A. H 8343, Hurd E. S. 1913, p. 1821.) § 1361. Division of proceeds. Sec. 31. Upon the approval of the report, the proceeds of the sale shall be distributed by the master, special commissioner or other person making the sale, to the persons entitled thereto, according to their interests, as directed by the court. (J. & A. TI8344, Hurd E. S. 1913, p. 1821.) § 1362. Sale of dower, homestead and other interests. Sec. 32. In case of sale the court may, with the assent of the person entitled to an estate in dower, or by the cur- tesy, or for life, or for years, or of homestead, to the whole or any part of the premises, who is a party to the suit, sell such estate with the rest. But such assent shall be in writing, and signed by such person, and filed in the court wherein the said proceedings for partition are pending. (J. & A. H 8345, Hurd E. S. 1931, p. 1821.) § 1363. Assent by court where persons incapable. Sec. 33. If such persons are incapable of giving assent, the coiart may determine, taking into view the interests of ILLINOIS STATUTES AND RULES 1117 all parties, whether such estate ought to be excepted from the sale or sold. (J. & A. H 8346, Hurd E. S. 1913, p. 1821.). § 1364. Funds paid over or invested. Sec. 34. When any such interest is sold the value thereof may be ascer- tained and paid over in gross, or the proper proportion of the funds invested, and the income paid over to the party entitled thereto, during the continuance of the estate. (J. & A. 8347, Hurd E. S. 1913, p. 1821.) § 1365. When owner unknown. Sec. ,35. If the person entitled to any such estate is unknown, the court may determine whether the estate shall be sold or not, as in case of persons under disability, and in the event of sale, make such order for the protection of the rights of such person, in the same manner, as far as may be, as if the person were known and had appeared. (J. & A. H 8348, Hurd E. S. 1913, p. 1821.) § 1366. Deposit of unclaimed money in county treasury. Sec. 36. When a sale of premises is made, and no person appears to claim such portion of the money as may belong to any non-resident or person whose name is unknown, the court shall require such money to be de- posited in the county treasury, subject to the further order of the court. All money so required to be deposited shall be received by the county treasurer and paid upon the order of the court. (J. & A. Ij 8349, Hurd E. S. 1913, p. 1821.) § 1367. Payment of money deposited on order of court. Sec. 37. When money is deposited in the county treasury under the provisions of this Act, the person or persons entitled to the same may, at any time, apply to the court making the order of sale, and obtain an order for the same upon making satisfactory proof to the court of his or her right thereto. (J. & A. H 8350, Hurd E. S. 1913, p. 1821.) § 1368. Amendments as in chancery. Sec. 38. Amend- ments shall be allowed as in cases in chancery. (J. & A. ]l 8351, Hurd E. S. 1913, p. 1821.) § 1369. Powers of court. Sec. 39. In all suits for the partition of real estate, whether by bill in chancery or 1118 EQUITY PRACTICE by petition, under this Act, the court may investigate and determine all questions of conflicting or controverted titles, and remove clouds upon the titles to any .of the premises sought to be partitioned; invest titles, by their decrees, in the parties to whom the premises are allotted, without the forms of conveyances by infants or unknown heirs or other parties to the suit ; assign dower, and order a sale of the premises for the purpose of dividing the premises in proper cases, and by its decree invest the purchaser with title, and apportion incumbrances among the parties to whom the incumbered premises are allotted. (J. & A. IT 8352, Hurd E. S. 1913, p. 1822.) § 1370. Costs and solicitor's fees apportioned. Sec. 40. In all proceedings for the partition of real estate when the rights and interests of all the parties in interest are properly set forth in the petition or bill, the court shall apportion the costs, including the reasonable solicitor's fee, among the parties in interest in the suit, so that each party shall pay his or her equitable portion thereof, unless the defendants, or some one of them, shall inter- pose a good and substantial defense to said bill or peti- tion. In such case the party or parties making such sub- stantial defense shall recover their costs against the com- plainant according to equity. (J. & A. U 8353, Hurd R. S. 1913, p. 1822.) Practice on Appeal § 1371. Appeals — Writs of error. Sec. 91. Appeals shall lie to and writs of error from the appellate or su- preme courts, as may be allowed by law, to review the final judgments, orders or decrees of any of the circuit courts, the superior court of Cook county, the county courts or the city courts and other courts from which appeals and to which writs of error may be allowed by law, in any suit or proceeding at law or in chancery. Appeals or writs of error in this section allowed shall be subject to the limitations by this Act provided and to the conditions imposed by law. (J. & A. II 8628, Hurd E. S. 1913, p. 1873.) §1372. Appeals — Bond. Sec. 92. Appeals shall be ILLINOIS STATUTES AND RULES 1119 prayed for and. allowed at the term at wliicli the judg- ment, order or decree is rendered, and the party praying for such appeal shall, within such time, not less than twenty days, as shall be limited by the court, give and file in the office of the clerk of the court from which the appeal is prayed, bonds, in a reasonable amount, to secure the ad- verse party, to be fixed by the court, with sufficient secur- ity, to be approved by the court. If the appeal is from a judgment or decree for the recovery of money, the condi- tion of the bond shall be for the prosecution of such appeal and the payment of the judgment, interest, damages and costs in case the judgment is affirmed. In all other cases the condition shall be directed by the court with reference to the character of the judgment, order or decree appealed from. The obligee in such bond may at any time, on a breach of the conditions thereof, have and maintain an action at law as on other bonds. (J. & A. 1[ 8629, Hurd E. S. 1913, p. 1873.) § 1373. Any of several parties may appeal. Sec. 97. In all cases where a judgment, order or decree, reviewable by the appellate or supreme court, shall be rendered in any circuit court, or in the superior court of Cook county, or in any city, county or probate court, in any case or proceeding whatever, against two or more persons, either one of said persons shall be permitted to remove such suit to the reviewing court by appeal or writ of error, as may be by law allowed, and for that purpose shall be permitted to use the names of all of said persons, if necessary; but no cost shall be taxed against any person who shall not join in said appeal or writ of error. All such cases shall be determined in said reviewing courts, as other suits are, and in the same manner as if all the par- ties had joined in such appeal or writ of error. (J. & A. T[8634, Hurd R. S. 1913, p. 1874.) § 1374. When record to be filed with clerk. Sec. 100. All appeals to the supreme court shall be prayed and allowed at the term at which the judgment, order or decree appealed from is rendered and not more than twenty (20) days after the date of the entry of such judgment, order or decree. Authenticated copies of records of judgments. 1120 EQUITY PRACTICE orders and decrees appealed from shall be filed in tlie office of the clerk of the supreme court on or before twenty (20) days before the first day of the succeeding term of said court: Provided, fifty (50) days shall have intervened between the day on which the order allowing such appeal shall have been entered and the first day of such succeeding term of said court. But if less than fifty (50) days shall have intervened as aforesaid, then such copies of record shall be filed on or before twenty (20) days before the first day of the second term succeeding the allowance of said appeal; otherwise the said appeal shall be dismissed. Further time to file such copies of record may be granted by said court in term time or by any justice thereof in vacation upon good cause shown, provided application therefor shall be made before the expiration of the time herein fixed for filing such copies of record. Authenticated copies of records of judgments, orders and decrees appealed from any court to the appellate courts shall be filed in the office of the clerk of the ap- pellate court on or before the second day of the succeed- ing term of said court: Provided, twenty (20) days shall have intervened between the last day of the term at which the judgment, order or decree appealed from shall have been entered and the sitting of the court to which the appeal shall be taken; but 'if ten (10) days and not twenty (20) days shall have intervened as aforesaid, then the record shall be filed as aforesaid, on or before the tenth (10th) day of said succeeding term, otherwise the said appeal shall be dismissed. Further time to file such copies of record may be granted by said court in term time or by any justice thereof in vacation upon good cause shown, provided application therefor shall be made before the expiration of the time herein fixed for filing such copies of record. If copies of the records of judgments, orders and decrees appealed from shall not be filed within the time above allowed and appellees shall thereafter file in said supreme or appellate court, as the case may be, the certificate of the clerk of the court, by which such appeal was granted, stating therein the title of the cause, the ILLINOIS STATUTES AND RULES 1121 date, character and amount of the judgment, order or decree appealed from, against whom the same was ren- dered, the time when and the condition, if any, upon which the appeal was granted, the name of the party taking the appeal, and that the appeal was perfected as required by the order allowing the same, such certifi- cate shall be prima facie evidence of the matters therein stated, and shall be a sufficient basis for a motion in the supreme or appellate court to affirm the judgment, order or decree appealed from, or to dismiss the appeal, and the court shall affirm the judgment or dismiss the appeal as for want of prosecution. (J. & A. T[ 8637, Hurd E. S. 1913, p. 1875.) § 1375. Agreed case. Sec. 103. The parties in any suit or proceeding whatever, in any circuit, county or probate court, or the superior court of Cook county, or in any city court, may make an agreed case containing the points of law at issue between them, and file the same in such court; and the said agreed ease, with the decision thereon, may be certified to the appellate court or su- preme court by the clerk of such court, if the same is reviewable by the appellate or supreme court, without certifying any fuller record in the case; and, upon such agreed case being so certified and filed in the appellate court or supreme court, the appellant or plaintiff in error may assign errors, and the case shall then be pro- ceeded in in the same manner as it might have been had a full record been certified to said appellate court or su- preme court. (J. & A. H 8640, Hurd E. S. 1913, p. 1876.) § 1376. Judge may certify questions of law. Sec. 104. Any judge of the circuit, county, or probate court, or the superior court of Cook county, or of any city court, may, if the parties litigant assent thereto, certify any question or questions of law arising in any case or proceeding whatever tried and finally determined before him to the appellate or supreme court, if the case is reviewable by the appellate or supreme court, together with his deci- sion thereon; or the parties in the ease or proceeding may agree as to the question or points of law arising therein, and the same may be certified by the counsel or attorneys 1122 EQUITY PRACTICE of the respective parties, wlio shall sign their names thereto, and, upon such certificate being made the same shall be filed in the court, rendering the decision, and a copy of such certificate, certified by the clerk of said court, with the decision thereon and final decision in the case or proceeding, to the appellate court or supreme court, if reviewable by such court, and filed therein; and, upon filing the same, the like proceedings may be had in the appellate court or supreme court, as if a full and complete record had been transcribed and certified to said court. (J. & A. T[ 8641, Hurd E. S. 1913, p. 1876.) § 1377. Exceptions to two preceding sections. Sec. 105. The two preceding sections shall not apply to cases in which the title to real estate is in question, nor to cases where any question of fact appertaining to the consti- tutional enactment of a law of this state is involved. (J. & A. Tl 8642, Hurd E. S. 1913, p. 1876.) § 1378. Appeal from appellate to supreme court— Final judgment. See. 121. In all cases in which their juris- diction is invoked pursuant to law, except those wherein appeals and writs of error are specifically required by the constitution of the state to be allowed from the ap- pellate courts to the supreme court, the judgments or decrees of the appellate courts shall be final, subject, however, to the following exceptions : (1) In case a ma- jority of the judges of the appellate court or of any branch thereof shall be of opinion that a case (regardless of the amount involved) decided by them involves a question of such importance, either on account of principal or collateral interests, as that it should be passed upon by the supreme court, they may in such cases grant appeals to the supreme court on petition of parties to the cause, in which case the said appellate court shall certify to the supreme court the grounds of granting said appeal. (2) In any such case as is hereinbefore made final in the said appellate courts it shall be competent for the su- preme court to require, by certiorari or otherwise, any such case to be certified to the supreme court for its review and determination with the same power and authority in the case, and with like effect, as if it had ILLINOIS STATUTES AND RULES 1123 been carried by appeal or writ of error to the supreme court: Provided, however, that in actions ex contractu (exclusive of actions involving a penalty) and in all cases sounding in damages the judgment, exclusive of costs shall be more than one thousand dollars ($1,000) : And, provided, also, that application under this Act to the supreme court to cause it to require a case to be cer- tified to it for its review and determination shall be made on or before twenty (20) days before the first day of the succeeding term of said supreme court: Provided, fifty (50) days shall have intervened between the day on which a rehearing in the appellate court shall have been denied or the day upon which the leave to apply for a rehearing shall have expired without any such applica- tion having been made, and the first day of such succeed- ing term of said court. But if less than fifty (50) days shall have intervened as aforesaid, then such applica- tion shall be made on or before twenty (20) days before the first day of the second term of the supreme court succeeding the day on which a rehearing in the appellate court shall have been denied or the day upon which the leave to apply for a rehearing shall have expired without any such application having been made, otherwise said power of the supreme court to review the judgment and decree of the appellate court shall cease to exist. Whenever judgment has been rendered in any of the said appellate courts, the appellate court so rendering judgment shall have power to stay the issuing of any mandate until the time for filing a petition in the supreme court for a writ of certiorari shall have expired without any such petition having been filed, or if such petition for said writ shall have been filed within the proper time, the appellate court so rendering judgment shall have power to stay the issuing of any mandate until said writ of certiorari shall have been granted or refused. Whenever said writ of certiorari shall have been granted, the issuing or enforcement of any mandate of the ap- pellate court pursuant to its judgment, or of any judg- ment entered in any court or standing affirmed in any court pursuant to the mandate of the appellate court, 1124 EQUITY PRACTICE shall be stayed without further order by the supreme court, until the final disposition of the case by the supreme court. (J. & A. II 8658, Hurd E. S. 1913, p. 1879.) § 1379. Supreme court — To pass only on law — Excep- tions. 122. The supreme court shall re-examine cases brought to it by appeal or writ of certiorari as provided in this act, from the appellate courts, as to questions of law only; and in the cases aforesaid, no assignment of error shall be allowed calling in question the determin- ation of the inferior or appellate courts upon contro- verted questions of fact therein. ( J. & A. T| 8659, Hurd E. S. 1913, p. 1880.) § 1380. Appeals from interlocutory orders concerning injunctions and receivers. Sec. 123. Whenever an inter- locutory order or decree is entered in any suit pending in any court in this state, granting an injunction, or over- ruling a motion to dissolve the same, or enlarging the scope of an injunction order, or appointing a receiver, or giving other or further powers or property to a receiver already appointed, an appeal may be taken from such in- terlocutory order or decree to the appellate court of the district wherein is situated the court granting such in- terlocutory order or decree: Provided, that such appeal is taken within thirty days from the entry of such in- terlocutory order or decree, and is perfected in said ap- pellate court within sixty days from the entry of such order or decree. The force and effect of such interlocu- tory order or decree and the proceedings in the court be- low shall not be stayed during the pendency of such appeal, and the party taking such appeal shall give bond, to be approved by the clerk of the court below, to se- cure costs in the appellate court. Upon filing of the record in the appellate court the same shall there be at once docketed, and shall be ready for hearing under the rules of said court, taking precedence of other causes in said court. Upon such appeal the appellate court may affirm, modify or reverse such interlocutory order or de- cree, and shall direct such proceedings to be had in the court below as the justice of the case may require. If such appeal is dismissed, the appellate court may allow ILLINOIS STATUTES AND RULES 1125 to the attorney for appellee a reasonable solicitor's fee, not to exceed one hundred dollars, to be taxed as part of the costs of the appeal. No appeal shall lie or writ of error be prosecuted from the order entered by said ap- pellate court on any such appeal. (J. & A. Tj 8661, Hurd E. S. 1913, p. 1880.) CHANCERY ETJLES OF THE CmCUIT COUET, COOK COUNTY * § 1381. Appearance of parties. When any defendant who shall be summoned, served with a copy of the bill or petition, or notified of the beginning of the suit as required by law, shall enter and file an appearance in writing before default taken, the party entering such appearance shall thereby, without any order, have twenty days from the first day of the appearance term within which to except, plead, answer or demur. By appear- ance term is meant the term at which the party might be defaulted for failure to appear. When any defendant, who has not been summoned, etc., as required by law, shall enter an appearance, he shall give the complainant's solicitor immediate written notice of the fact, and shall except, plead, answer or demur within twenty days after the first day of the term next succeeding that in which his appearance has been entered. (111. Circ. Ct., Eule 1.) § 1382. Defaults. On and after the third day of each term defaults may be entered as to such defendants as have been served in due time, and have filed no appear- ance in writing. (111. Circ. Ct., Eule 2.) § 1383. What may be considered as motions of course. Motions for default, default decrees, for appointment of commissioners in partition; for confirmation of reports of commissioners and of masters where no exceptions are filed, motions for rules to plead, answer or demur; con- cerning amendments of pleadings or for leave to file any pleading or paper; to set aside defaults, for new bonds; * In force, March. Term, 1910, corrected to January 1, 1915. Chancery rules in the chancery courts of other counties are substantially the same as the above rules. 1126 EQUITY PRACTICE that sureties justify; concerning ne-exeats; for ex parte injunction orders; touching the custody of children; mo- tions for reference to a master and for contempts of court may, among others, be considered motions of course. (111. Circ. Ct., Eule 3.) § 1384. Calling and hearing of motions. If no one ap- pears for or against a motion when called, it will be stricken from the "contested motion calendar" or the "motion book" upon which it may be pending. Motions, whether "contested" or "of course," if not supported by the moving solicitor when called, will be overruled, as, of course, on the suggestion of opposing solicitor, who, in response to notice thereof, is in at- tendance, and no renewal thereof will be permitted ex- cept for cause shown, upon service of notice of motion therefor with copy of affidavit, etc., upon the opposite so- licitor and upon reasonable terms in the discretion of the court, or upon consent thereto in writing of the opposing solicitor. In all cases where a motion is made before default day and there is no appearance of defendant by solicitor, the defendant shall be personally served with at least one day's notice thereof, and with copies as hereinbefore di- rected, if practicable, and not otherwise determined by the court because of the emergency thereof; all motions except in default cases shall be reduced to writing and filed in the cause before action of the court is moved thereon. § 1384a. — Contested motions. Contested motions shall be deemed to include all motions pertaining to the settling of pleadings; for alimony and solicitor's fees; for injunc- tions upon notice; to dissolve injunctions; for the ap- pointment or removal of receivers; the hearing of ex- ceptions to masters or receiver's reports, and all other opposed motions the hearing of which will operate un- duly to delay the court in its other duties. A calendar of such motions will be made up on Friday of each week for hearing on the following Monday, in the order of filing notices thereof, with the minute clerk, and will be posted in the court room. The court may, in ILLINOIS STATUTES AND EULES 1127 its discretion, continue the call of said calendar from day to day, or upon a particular day to be specified without notice except as may be announced during the call there- of, and may, whenever, in its opinion, the exigency of the case requires it, hear particular motions at any time. Motions passed under the rule relating to the engage- ment or other disability of a solicitor shall be placed at the head of the next succeeding calendar in the relative order they occupied on the pending calendar. Motions continued by order or consent, will be placed in their relative order at the foot of the next calendar unless otherwise ordered. To entitle a motion to be placed and heard on the contested motion calendar, notice thereof, together with a copy of all affidavits and other pertinent and competent papers relied upon and to be read in support thereof, ex- cept the records, files, pleadings, depositions, reports of masters and receivers, and other ^proceedings in the cause, or in other causes, must be served on the solicitor of the opposing party before four o 'clock in the afternoon of the preceding Thursday, and a copy of all counter- affidavits, etc. (with the like exceptions), must be served on the solicitor of the moving party before twelve o 'clock noon of Saturday succeeding. Said notice with proof, or acceptance, of service thereof, must be delivered to the minute clerk before two o'clock p. m. of the Friday be- fore the Monday on which the motion is to be heard. To entitle records or other proceedings in the same cause or in other causes than the one in which the mo- tion is made, to be read either in support of or in opposi- tion to a motion of any kind, brief designation thereof shall be made by notice to the solicitor of the opposite party within the times mentioned for the service of affidavits. Affidavits and matters of record, strictly in rebuttal, may be read without notice, or the service of a copy thereof. Motions in cases where the emergency thereof will not admit of the delay incident to the contested motion calendar, may be taken up and heard at any time, upon 1128 EQUITY PRACTICE such notice as the court may, in its discretion, direct, or without notice, if the court shall so determine. Except by permission of the court, but one solicitor on each side shall be heard on any motion, demurrer, or any interlocutory matter. (111. Circ. Ct., Eule 4.) § 1385. Default divorces and other default suits. All default divorce suits as well as all other default suits, in which notice shall be given the clerk to place the same upon the default calendar will be heard upon Saturday of each week, unless otherwise determined by the judge before whom such cause is pending. No references shall be allowed in default divorce suits, except as to questions of alimony and property, and all testimony must be taken by deposition or in open court. When taken in open court, it must be taken in shorthand written out and sworn to be a correct transcript by the stenographer and solicitor in, the suit and presented to the court, and filed before a decree will be entered. No decree of divorce will be granted upon the unsupported testimony of the com- plainant. Within ten days after the hearing of any default or uncontested divorce suit, the complainant shall hand to the minute clerk a draft of the decree and certificate of evidence ; in default whereof, unless for good cause shown the time be extended, the bill shall be dismissed. (111. Circ. Ct., Eule 5.) § 1386. Withdrawal of solicitors. No solicitor will be permitted to withdraw his appearance for any party un- less the court shall be satisfied by affidavit or otherwise, that such party has had reasonable notice of the solici- tor's intention to withdraw his appearance in the cause. (111. Circ. Ct, Eule 6.) § 1387. Abstract of pleadings and evidence. In all cases heard in this court, except where otherwise deter- mined by the court, the parties shall prepare an abstract or abridgement of their respective pleadings, and of the evidence when the same shall have been taken by deposi- tion or before a master in chancery, and such abstract of the pleadings and evidence shall be read on the hear- ing in lieu of the original pleadings and depositions. (111. Circ. Ct., Eule 7.) ILLINOIS STATUTES AND RULES 1129 § 1388. Decrees, etc., as to sale of real estate. All de- crees and orders of this court directing the public sale of any real estate or an interest therein, shall provide that such sale shall be made at the rooms of the Chicago Eeal Estate Board or of the Cook County Real Estate Board in the City of Chicago unless the court for cause shown shall otherwise order. (111. Circ. Ct., Rule 8.) § 1389. Changing final decree as to alimony or custody of children. All applications for changing a final order or decree concerning alimony or the custody of children shall be by petition in writing verified by affidavit. Upon the filing thereof a rule on the respondent to plead, an- swer or demur in ten days after service of the copy thereof on such respondent, may be obtained. Issues joined therein may be heard at such time as the court may order. The court may, in its discretion, upon motion, refer the same to a master, as in other cases. (111. Circ. Ct., Rule 9.) § 1390. Bonds. Upon the motion of any party in in- terest, the bond of any receiver, injunction or other bond may be ordered spread of record in the cause in which it is filed. (111. Circ. Ct., Rule 10.) § 1391. Complete record, etc. A complete record may be made of all pleadings, files, etc., in any cause upon the motion of any party in interest, upon such terms as to the costs thereof as the court may order. Any pleading or file may b'e ordered spread of record in any cause before final decree, upon such terms and in such manner as the court may order. (111. Circ. Ct., Rule 11.) § 1392. Receivers. Notice of the filing of reports by receivers, and of all orders asked for or by any receivers, and of all orders to be made on such receiver shall be given to each and all the solicitors or firms of solicitors of record in the cause. (111. Circ. Ct., Rule 12.) Rules or Circuit Court Governing Masters in Chancery § 1393. Taking testimony — Proceedings — Closing proofs. Whenever a reference shall be made to a master in chancery of this court, to take testimony and report 1130 EQUITY PRACTICE the same, or to take testimony and report the same with his conclusions thereon to the court, the master to whom such reference is made shall, as soon as practicable, fix a day to proceed with the taking of testimony or evi- dence, on such reference, and on the day so fixed he shall proceed with the taking of such testimony or evidence, and may, in his discretion, fix a day within which the complainant shall close his proofs, which time he may, in his discretion, for good cause shown, extend for such reasonable time as justice may require; and as soon as the complainant has closed his proofs, shall fix a time within which the defendant shall close his proofs, and the complainant his proofs in rebuttal; and in his discretion for good cause may extend the time for such reasonable time as justice may require ; and in case the parties shall not close their proofs within the time limited by the master, he shall proceed to make up his report upon the testimony and evidence that may have been submitted to him without waiting for further evidence or testimony from the party so failing to close his proofs within the time limited. (111. Circ. Eules for Masters in Chancery, Eule 1.) §1394. Competency of witnesses — Exainination — Rul- ings on evidence — ^Objections and exceptions. Whenever such reference is made to a master in chancery of this court, to take testimony and report the same, or to take testimony and report the same with his conclusions there- on to the court, the master shall have full power and discretion to pass upon all questions of competency of witnesses, and the propriety and relevancy of all ques- tions or interrogatories put by counsel, and the master shall note his ruling upon each objection in the minutes of the proceedings before him, and when the master has ruled that a party or witness shall answer a given inter- rogatory, it shall be the duty of such witness or party to answer in the same manner as if such witness or party had been so directed by the court; and in case the master shall hold that any question is irrelevant or incompetent, the same shall not be answered. If either party shall ob- ILLINOIS STATUTES AND RULES 1131 ject to the ruling of tlie master upon the admissibility of testimony or evidence, they shall, after the testimony and evidence before the master is closed, and before he makes his report thereon, bring such objections and exceptions to the master's ruling upon the testimony before the court, and if the court shall sustain the ruling of the master, he shall immediately proceed to make his report upon the testimony and evidence submitted to him, and if such objections and exceptions to the rulings of the master shall be sustained, the master shall proceed to take such further testimony as the court may direct, and shall disregard, in making up his report, such testimony as the court may rule to be incompetent or irrelevant. (111. Circ. Eules for Masters in Chancery, Eule 2.) §1395. Accounting — Examination of party. All par- ties accounting before a master shall bring in their re- spective accounts in the form of debtor and creditor, and any of the other parties who shall not be satisfied with the accounts so brought in, shall be at liberty to examine the accounting party viva voce or upon oral or written interrogatories, in the master's office, as the master may direct. (111. Circ. Eules for Masters in Chancery, Eule 3.) § 1396. Examination of creditors, etc. The master shall be at liberty to examine any creditor or other per- son coming in to make a claim before him, either upon written interrogatories or viva voce, or in both modes, as the nature of the case may appear to him to require. The evidence upon such examination shall be taken down by the master, or by some other person by his order and in his presence, if either party requires it, in order that the same may be used by the court, if necessary. (111. Circ. Eules for Masters in Chancery, Eule 4.) §1397. Use of affidavits, depositions, etc. All affida- vits, depositions and documents which have been pre- viously made, read, or used in the court upon any pro- ceeding in any cause or matter may be used before the master. (111. Circ. Eules for Masters in Chancery, Eule 5.) Whitehouse B. P. Vol. II — 16 1132 EQUITY PRACTICE § 1398. Bill or petition — Filing — Examination — In- dorsement. Every bill or petition upon which an ex parte preliminary injunction, order for the appointment of a receiver, or for a writ of ne exeat republica is de- sired, shall be filed with the clerk of the court before the same is presented to a judge for an order or to a master for a recommendation as to such injunction, receiver or writ of ne exeat. For such purpose the clerk may de- liver such bill or petition to the solicitor or person filing such bill upon his receipting therefor to such clerk, but the same must be returned to the custody of such clerk immediately after such judge or master shall have passed upon such application. No master shall examine any such bill or petition pre- sented to him until the same shall have been filed as aforesaid and the master's fee paid to such master. The master shall indorse upon or at the foot of every such bill or petition so presented and examined by him his conclusion or recommendation as to whether the prayer of such bill or petition as to such injunction, re- ceiver, or ne exeat, should be granted. No master shall examine or make any recommendation upon any such bill or petition which shall contain the indorsement of any other master as aforesaid, except upon a special order of the court to that effect. (111. Circ. Eules for Masters in Chancery, Eule 6.) § 1399. Attendance of solicitors on Saturday. The at- tendance of solicitors shall not be compulsory before masters in chancery in any matter on Saturday after 12 o'clock noon. (111. Circ. Eules for Masters in Chancery, Eule 9.) CHANCEEY EULES OF THE SUPEEIOE COUET OF COOK COUNTY * §1400. Appearance of parties. When any defendant who shall be summoned, served with a copy of the bill or petition, or notified of the commencement of the suit, as required by law, shall enter and file an appearance in * In force March 20, A. D. 1892, as amended 1897, 1911. Corrected to January 1, 1915. ILLINOIS STATUTES AND RULES 1133 writing, before ' default taken, the party entering such appearance shall thereby, without any order, have twenty days from the first day of the appearance term within which to except, plead, answer or demur. By ap- pearance term is meant the term at which the party might be defaulted for failure to appear. When any defendant who has not been summoned, etc., as required by law, shall enter an appearance, he shall give the complainant's solicitor immediate notice of the fact, and shall except, plead, answer or demur, within 20 days after entering such appearance. (111. Super. Ct., Rule 1.) § 1401. Defaults. On and after the third day of each term defaults may be entered as to such defendants as have been served in due time, and have filed no appear- ance in writing. (111. Super. Ct., Eule 2.) § 1402. Motions of course. Motions of course will be heard at the opening of court at ten o'clock each day (and the time occupied therein shall be known as "mo- tion hour"), and notice thereof, except in default cases, of at least one day shall be given to the solicitor of record of the opposite party, if there be such solicitor, and be supported by affidavit whenever based on matters of fact not appearing of record or by the files in the case, but all notices served on Saturday shall be served before 12 o'clock noon of that day. § 1402a. — What may be considered as motions of course. Motions for default; default decrees, for appoint- ment of commissioners in partition ; for confirmation of re- ports of commissioners and of masters where no excep- tions are filed; motions for rules to plead, answer or demur; concerning amendments of pleadings or for leave to file any pleading or paper; to set aside defaults, for new bonds; that sureties justify; concerning ne exeats; for ex parte injunction orders; touching the custody of children; motions for reference to a master and for contempts of court may, among others, be considered motions of course. § 1402b. — How made. A note of such motions shall be made by the solicitor of the moving party in a "motion book " to be provided by the clerk, or by a memorandum 1134 EQUITY PRACTICE thereof delivered to the miirnte clerk (whose duty it shall be to enter the same in the ' ' motion book ' ' in the order of the receipt thereof) before the opening of court. The note, or memorandum, shall designate the term number and title of the cause, with a brief statement of the nature of the motion, the name of the moving solicitor, and, except in default cases or where no appearance has been entered, the name of the solicitor of the opposite party. Such motions will be called in their order in the "mo- tion book," and solicitors will not rise to address the court upon a motion until it has been called. (111. Super. Ct., Eule 3.) § 1403. Motions. If no one appears for or against a motion when called it will be stricken from the "con- tested motion calendar" or the "motion book" upon which it may be pending. Motions, whether "contested" or "of course," if not supported by the moving solicitor when called, will be overruled, as of course, on the suggestion of opposing solicitor who in response to notice thereof is in attend- ance, and no renewal thereof will be permitted except for cause shown, upon service of notice of motion therefor with copy of affidavit, etc., upon the opposite solicitor and upon reasonable terms in the discretion of the court, or upon consent thereto in writing of the opposing so- licitor. In all cases where a motion is made before default day and there is no appearance of defendant by solicitor, the defendant shall be personally served with at least one day's notice thereof, and with copies as hereinbefore directed, if practicable, and not otherwise determined by the court because of the emergency thereof. All motions except in default cases shall be reduced to writing and filed in the cause before action of the court is moved thereon. § 1403a. — Contested motions. Contested motions shall be deemed to include all motions pertaining to the settling of pleadings, for alimony and solicitors' fees, for in- junctions upon notice; to dissolve injunctions, for the appointment and removal of receivers, the hearing of ILLINOIS STATUTES AND EULES 1135 exceptions to masters' and receivers' reports, and all other opposed motions, the hearing of which will operate to unduly delay the court in its other duties. A calendar of such motions will be made up on Fri- day of each week for hearing on the following Monday, in the order of filing notices thereof, with the minute clerk, and will be posted in the court room. The court may in its discretion, continue the call of said calendar from day to day, or on a particular day to be specified, without notice except as may be announced during the call thereof, and may, whenever in its opinion the exi- gency of the case requires it, hear particular motions at any time. Motions passed under the rule relating to the engage- ment or other disability of a solicitor shall be placed at the head of the next succeeding calendar in the relative order they occupied on the pending calendar. Motions continued by order or consent, will be placed in their relative order at the foot of the next calendar unless otherwise ordered. To entitle a motion to be placed and heard on the contested motion calendar, notice thereof, together with a copy of all affidavits and other pertinent and competent papers relied upon and to be read in support thereof (ex- cept the records, files, pleadings, depositions, reports of masters and receivers, and other proceedings in the cause, or in other causes,) must be served on the solicitor of the opposing party before four o 'clock in the afternoon of the preceding Thursday, and a copy of all counter- affidavits, etc., (with the like exceptions) must be served on the solicitor of the moving party before twelve o 'clock noon of Saturday succeeding. Said notice, with proof, or acceptance,, of service thereof, must be delivered to min- ute clerk before two o'clock p. m. of Friday. To entitle records or other proceedings in the same cause or in other causes than the one in which the motion is made, to be read either in support of or in opposition to a motion of any kind, brief designation thereof shall be made by notice to thei solicitor of the opposite party within the times mentioned for the service of affidavits. 1136 EQUITY PRACTICE Affidavits, and matters of record, strictly in rebuttal, may be read without notice, or the service of a copy thereof. Motions in cases where the emergency thereof will not admit of the delay incident to the contested motion calen- dar, may be taken up and heard at any time, upon such notice as the court may in its discretion direct, or with- out notice if the court shall so determine. Except by permission of the court, but one solicitor on each side shall be heard on any motion, demurrer, or any interlocutory matter. (111. Super. Ct., Eule 4.) § 1404. Trial calendar. When any chancery cause is at issue, upon notice and motion of either party, the cause at any time within ten days of the commencement of the term for which a trial calendar may be ordered made, may be ordered placed on the trial calendar, and any cause before issues joined may be ordered placed upon the trial calendar by consent of the parties, or by order of the court, but issue must be joined therein before the cause is reached for final hearing. The cases on such calendar shall be called and tried on Tuesday, Wednesday, Thursday and Friday of each week, and also on Mondays and Saturdays when so directed by the court. No more than five cases shall be fixed for trial upon the same day; but if the court is behind in the call of the calendar, not exceeding six cases may be called for trial on any one day. All cases remaining undisposed of upon any calendar, shall, without further order, be placed at the head of the next (new) calendar. (See rule 7.) (111. Super. Ct., Eule 5.) § 1405. Sickness, etc., of solicitor. When the principal solicitor of a party is sick, or actually engaged in the trial of a cause in some other court of record in this county (or in the supreme court) at the time the cause is called for trial, and the adverse party is ready, the court, if satisfied by affidavit or otherwise that the party seeking the delay would have been ready for trial but for the sickness or engagement of his solicitor, may order said cause passed or continued upon such terms as the court may direct; provided, however, the court may on ILLINOIS STATUTES AND RULES 1137 passing such cause set the same for hearing peremptorily at some future day. (111. Super. Ct., Eule 6.) § 1406. Passed cases. No case will be passed a second time for either of the causes mentioned in the preceding rule; any case so passed shall be in order to be called up for trial at any time after the cause for which the same was passed shall cease, but notice shall be given to the opposite party or his solicitor. Which notice shall be at least one day's notice, unless the case is to be called up for trial upon the same day that it was passed. If no such notice shall be given during the term or terms the trial calendar shall be called, the case shall be placed by the clerk, without further order, at the foot of the next trial calendar. (111. Super. Ct., Eule 7.) § 1407. Divorces and default cases. All divorces and other default cases, in which notice shall be given the clerk to place the same upon the default calendar, will be heard upon Saturday of each week, unless otherwise de- termined by the judge before whom such cause is pend- ing. No references shall be allowed in default divorce cases, except as to question of alimony and property, and all testimony must be taken by deposition or in open court. When taken in open court, it must be taken in shorthand, written out and presented to the court, and filed before a decree will be entered. No decree of divorce will be granted upon the unsupported testimony of the complainant. When an answer is filed the case may be placed on the trial calendar upon notice and motion thereof, and heard in its order. Within ten days after the hearing of any default or uncontested , divorce suit, the complainant shall hand to the minute clerk a draft of the decree and certificate of evidence; in default whereof, unless for good cause shown, the time be extended, the bill shall be dismissed. (111. Super. Ct., Eule 8.) § 1408. Withdrawal of solicitor. No solicitor will be permitted to withdraw his appearance for any party, un- less the court shall be satisfied, by affidavit or otherwise, that such party has had reasonable notice of the solici- 1138 EQUITY PRACTICE tor's intention to withdraw his appearance in the cause. (111. Super. Ct., Rule 9.) § 1409. Abstract of pleadings and evidence. In all cases heard in this court, except where otherwise de- termined by the court, the parties shall prepare an ab- stract or abridgement of their respective pleadings, and of the evidence, when the same shall have been taken by deposition or before a master in chancery, and such ab- stract of the pleadings and evidence shall be read on the hearing in lieu of the original pleadings and depositions. (111. Super. Ct., Eule 10.) § 1410. Decrees, etc., as to sale of real estate. All de- crees and orders of this court directing the public sale of any real estate, or an interest therein, shall provide that such sale shall be made at the rooms of the Chicago Eeal Estate Board, or the rooms of the Cook County Eeal Estate Board, in the City of Chicago, unless the court — for cause shown — shall otherwise order. (111. Super. Ct., Eule 101/2.) § 1411. Changing final decree as to alimony or custody of children. All applications for changing a final order or decree concerning alimony or the custody of children shall be by petition in writing verified by affidavit. Upon the filing thereof a rule on the respondent to plead, an- swer or demur in ten days after service of the copy thereof on such respondent, may be obtained. Issues joined therein may be heard at such time as the court may order. The court may, in its discretion, upon motion, re- fer the same to the master, as in other cases. (111. Super. Ct., Eule 11.) § 1412. Bonds. Upon the motion of any party in in- terest, the bond of any receiver, injunction or other bond may be ordered spread of record in the cause in which it is filed. (111. Super.. Ct., Eule 12.) § 1413. Complete record, etc. A complete record may be made of all pleadings, files, etc., in any cause upon the motion of any party in interest, upon such terms as to the costs thereof as the court may order. Any pleading or file may be ordered spread of record in any cause before final decree, upon such terms and in ILLINOIS STATUTES AND RULES 1139 such manner as the court may order. (111. Super. Ct., Rule 13.) § 1414. Receivers. Notice of the filing of reports by receivers, and of all orders, asked for by any receiver, and of all orders to be made on such receiver, shall be given to each and all the solicitors, or firm of solicitors of record in the cause. (111. Super. Ct., Rule 14.) § 1415. Pleadings and copies thereof. Upon the filing of every bill or petition (or within 24 hours thereafter) a copy of the same and of all exhibits accompanying the same shall be filed with the clerk of the court, marked "copy." And upon the filing of any other pleading, a copy thereof, and of the exhibits accompanying the same shall also be filed with the clerk. Any such copy may be taken by the solicitor of any party to the cause upon his receipting therefor to the clerk, as hereinafter provided, but in no case shall the original of any such bill, petition, pleading or exhibit or file be taken from the custody of the clerk, except upon special order of the court, entered of record in the cause. (111. Super. Ct., Rule 15.) § 1416. Chancery register. That the clerk procure and keep a suitable book to be known as ' ' The Clerk 's Chan- cery Register," in which shall be noted: First. The number and title of all chancery causes, petitions, or proceedings commenced upon the chancery side of this court. Second. The names of the respective solicitors and counsel therein. Third. The date of filing the bill, petition, demurrer, answer or other pleading therein, and of all affidavits, exhibits, or other papers therein, describing the same as briefly as may be necessary for identification. Fourth. The date when any such bill, petition, de- murrer, answer, pleading, etc., or filed copy thereof, shall be taken from the files, to whom delivered, and when re- turned. But no such delivery shall be made to any per- son other than a solicitor or counsel in the cause or his or their clerk, known to be such, nor shall the entire files or any injunction, receiver's or other bonds, writ 1140 EQUITY PRACTICE or other process be delivered to any other person than a bailiff or deputy clerk of this court. It is also ordered, that no such bill, petition, demurrer, answer, pleading, etc., or filed copy thereof shall be per- mitted to be taken from the files except upon leaving with the clerk a receipt therefor upon the receipt book provided for that purpose, nor shall the same be retained for a longer time than three days (the date when taken shall be counted as one day), and if the same is not re- turned within such three days, it shall be the duty of the clerk in charge of such register to forthwith make a report to the court, to the end that a rule may be made to return the same to the files instanter. For any violation of this rule, or for any cause, the court may direct the clerk to refuse to allow any specified solicitor or counsel to take any pleadings, etc., or filed copy thereof from any of the files of the court. (111. Super. Ct., Rule 15a.) § 1417. Costs. When there are several defendants, if a single appearance is filed for all, but one appearance fee of three dollars ($3.00) is required to be paid; but if several appearances are filed for different parties, either by different solicitors or by the same solicitor at different times, an appearance fee must be paid for each appear- ance. When the appearance fee has been paid no costs are required upon filing of a cross-bill. (111. Super. Ct., Eule 16.) § 1418. Application to sue as poor person. In view of the large number of applications for leave to sue as a poor person, in divorce and other cases, and for the pro- tection of the clerk's office against imposition, it is or- dered that hereafter, all such applications made upon the chancery side of the court must be accompanied by a de- tailed sworn statement by the applicant, containing oc- cupation, means of subsistence, income during the year preceding the application and sources and amount of expected income, if any, of the applicant. Affidavits also of two disinterested persons must ac- company the application, which must show affirmatively ILLINOIS STATUTES AND EULES 1141 that the applicant is not able to pay the usual court costs. There must also be filed an agreement on part of the applicant to pay the court costs out of the first payments of alimony or other funds, if any, realized out of the litigation. No final decree will be entered, nor suit dismissed or otherwise disposed of, in cases where the complainant receives from the litigation any funds whatever until the clerk's costs are fully paid. (111. Super. Ct., Eule 17.) It is ordered that hereafter all applications made to this court for leave to sue as a poor person must be ac- companied by a detailed, sworn statement by the appli- cant of the cause of action, containing occupation, means of subsistence, income during the year preceding the application, and sources and amount of expected income, if any, of the applicant ; affidavit also of two disinterested persons must accompany the application, which must show affirmatively that the applicant is not able to pay the usual court costs. There must also be filed an agree- ment on the part of the applicant to pay the court costs out of the first payments of alimony or other funds, if any, realized out of the litigation or otherwise. No final order or judgment will be entered nor suit dismissed or other- wise disposed of in cases where the co'mplainant receives from the litigation any funds whatever until the clerk's cost are fully paid. (Amendment of 111. Super. Ct., Rule 17, adopted Oct. 23, 1897.) Any person who is not a resident of Cook county may be permitted to begin, prosecute or defend a suit in law or chancery as a poor person, on making the affidavit required by the statute and rules of court, and it shall be unnecessary for such non-resident to make application in person for leave to commence or defend an action in forma pauperis, (Amendment of 111. Super. Ct., Eule 17, adopted April 27, 1911.) Rules Governing Masters in Chancery * § 1419. Taking testimony — Proceedings — Closing proof. Whenever a reference shall be made to a master in chan- * Adopted 1897. 1142 EQUITY PRACTICE eery of this court, to take testimony and report the same, or to take testimony and report the same with his conclusions thereon to the court, the master to whom such reference is made shall, as soon as practicable, fix a day to proceed with the taking of testimony or evi- dence on such reference, and on the day so fixed he shall proceed with the taking of such testimony or evidence, and may, in his discretion, fix , a day within which the complainant shall close his proofs, which time he may, in his discretion, for good cause shown, extend for such reasonable time as justice may require; and, as soon as the complainant has closed his proofs, shall fix a time within which the defendant shall close his proofs, and the complainant his proofs in rebuttal; and in his dis- cretion for good cause may extend the time for such reasonable time as justice may require; and in case the parties shall not close their proofs within the time limited by the master, he shall proceed to make up his report upon the testimony and evidence that may have been submitted to him without waiting for further evidence or testimony from the party so failing to close his proofs within the time limited. (Ill Super. Ct. Eules for Mas- ters in Chancery, Eule 1.) § 1420. Competency of witnesses — ^Examination — Rul- ings on evidence — Objections and exceptions. When ever such reference is made to a master in chancery of this court, to take testimony and report the same, or to take testimony and report the same with his con- clusion thereon to the court, the master shall have full power and discretion to pass upon all questions of com- petency of witnesses, and the propriety and relevancy of all questions or interrogatories put by counsel, and the master shall note his ruling upon each objection in the minutes of the proceedings before him, and when the master has ruled that a party or witness shall answer a given interrogatory, it shall be the duty of such witness or party to answer in the same manner as if such witness or party had been so directed by the court; and in case the master shall hold that any question is irrelevant or ILLINOIS STATUTES AND RULES 1143 incompetent, the same shall not be answered. If either party shall except to the ruling of the master upon the admissibility of testimony or evidence, they shall, after the testimony and evidence before the master is closed, and before he makes his report thereon, bring such ob- jections and exceptions to the master's ruling upon the testimony before the court, and if the court shall sustain the ruling of the master, he shall immediately proceed to make his report upon the testimony and evidence sub- mitted to him, and if such objections and exceptions to the rulings of the master shall be sustained, the master shall proceed to take such further testimony as the court may direct, and shall disregard, in making up his report, such testimony as the court may rule to be incompetent or irrelevant. (111. Super. Ct. Eules for Masters in Chan- cery, Eule 2.) § 1421. Accounting — Examination of party. All par- ties accounting before a master shall bring in their re- spective accounts in the form of debtor aijd creditor, and any of the other parties who shall not be satisfied with the accounts so brought in, shall be at liberty to examine the accounting party viva voce or upon oral or written interrogatories, in the master's office, as the master may direct. (111. Super. Ct. Eules for Masters in Chancery, Eule 3.) § 1422. Examination of creditors, etc. The master shall be at liberty to examine any creditor or other person coming in to make a claim before him, either upon writ- ten interrogatories or viva voce, or in both modes, as the nature of the case may appear to him to require. The evidence upon such examination shall be taken down by the master, or by some other person by his order and in his presence, if either party requires it, in order that the same may be used by the court, if necessary. (111. Super. Ct. Eules for Masters in Chancery, Eule 4.) § 1423. Use of affidavits, depositions, etc. All affida- vits, depositions, and documents which have been pre- yiously made, read, or used in the court upon any pro- ceeding in any cause or matter may be used before the 1144 EQUITY PEACTICE master. (111. Super. Ct. Eules for Masters in Chancery, Eule 5.) § 1424. Bill or petition — Filing — Examination — In- dorsement. Every bill or petition upon which an ex farte preliminary injunction, order for the appointment of a receiver, or for a writ of ne exeat republica is de- sired, shall be filed with the clerk of the court before the same is presented to a judge for an order, or to a master for a recommendation as to such injunction, re- ceiver or writ of ne exeat. For such purpose the clerk may deliver such bill or petition to the solicitor or per- son filing such bill, upon his receipting therefor to such clerk, but the same must be returned to the custody of such clerk immediately after such judge or master shall have passed upon such application. No master shall examine any such bill or petition pre- sented to him until the same shall have been filed as aforesaid, and the master's fee paid to such master. The judge or master shall indorse upon or at the foot of every such bill or petition so presented and examined by him, his conclusion, or recommendation as to whether the prayer of such bill or petition as to such injunction, receiver, or ne exeat, should be granted. No master shall examine or make any recommendation upon any such bill or petition which shall contain the indorsement of any judge or master as aforesaid, except upon a special order of the court to that effect. (111. Super. Ct. Eules for Masters in Chancery, Eule 6.) § 1425. Attendance of solicitors on Saturday. The at- tendance of solicitors shall not be compulsory before masters in chancery in any matter on. Saturday after 1 o'clock p. m. (111. Super. Ct. Eules for Masters in Chan- cery, Eule 7.) § 1426. Rule as to certificates of good moral character. All applications for certificates of good moral character shall be filed in the office of the clerk of this court, to- gether with recommendations in writing of two or more sponsors at least ten days before being presented to the court on motion. (111. Super. Ct. Eules for Masters in Chancery, Eule 8.) ILLINOIS STATUTES AND RULES 1145 § 1427. Rules — ^When to go into effect. The foregoing rules shall go into effect and be in force from and after the 15th day of October, 1897, and on and from that date shall supersede all prior rules adopted by this court. (111. Super. Ct. Eules for Masters in Chancery.) CHAPTER XXXIV MAINE STATUTES * §1428, Commencement of suit — Issue of subpoena — Return day — Attachment in aid — Service of process — Contents of bill — Amendments. Sec. 12. Causes in equity shall be begun by bill of complaint filed in the clerk's office, upon which subpoena shall issue as matter of course returnable on the first day of a term of court for the county where it is filed, or upon a rule-day, which in either case shall be held within sixty days after the fil- ing of such bill, and such subpoena shall be served at least fourteen days before the return day thereof; or, by order of court, such subpoena may be made returnable on any day in or out of term, and be served as directed in such order; or such bill may be inserted in a writ of attachment, upon which property may be attached and which shall be made returnable as writs at common law. In all cases, service shall be made by copy of the sub- poena and bill or writ of attachment. The bill of com- plaint shall state the material facts and circumstances relied on by the plaintiff, with brevity, omitting immate- rial and irrelevant matters, and may be amended or re- formed at the discretion of the court, with or without terms, at any time before final decree is entered in said cause. (Me. E. S. 1903, c. 79.) § 1429. Certificate of commencement of suit — Record- ing. Sec. 13. No action commenced by bill in equity not inserted in a writ of attachment, in which the title to *Eevised Statutes 1903, as amended, Acts of 1905, 1907, 1909, 1911, 1912, 1913. Corrected to January 1, 1915. See footnote, post, p. 1175. 1146 irAINE STATUTES AND RULES 1147~ real estate is involved, is effectual against any person not a party thereto or having actual notice thereof, until a certificate, setting forth the names of the parties, the date of the bill and the filing thereof, and a description of the real estate in litigation as described in said bill, duly certified by the clerk of courts in and for the county where said bill is pending, is recorded in the registry of deeds in the county or district in which such real estate is situated. (Me. E. S. 1903, c. 79.) § 1430. Verification of bill. Sec. 14. Verification by the oath of a party for whose benefit the bill sets forth that it is prosecuted, is equivalent to such verification by the plaintiff. (Me. E. S. 1903, c. 79.) § 1431. Discovery. Sec. 15. If discovery is sought, it may be by bill, with or without interrogatories annexed thereto, for the purpose of such discovery. Answers thereto shall be made within thirty days after the return day of such bill, or within such time as the court orders, and questions arising thereon shall be determined by the rules established by said court as herein provided, and in the absence thereof, by the rules applicable to bills of discovery in equity procedure. (Me. E. S. 1903, c. 79.) § 1432. Appearance — Default — Decree pro confesso — Opening. Sec. 16. When process is made returnable at any regular term, the defendant shall appear within the first three days thereof; otherwise on the return day of such process; and in default thereof, on motion of the plaintiff in writing, the bill shall be taken pro confesso, as matter of course, at the expiration of ten days after the filing of such motion, but such decree for good cause shown, on motion of the defendant, may be opened within ten days after it is made, and in such case the court shall fix the 'time for making a defense. (Me. E. S. 1903, c. 79.) § 1433. Answer — Default — Decree pro confesso — Op- ening' — Signing and verifying answer. Sec. 17. De- fense shall be made by answer, plea or demurrer, within thirty days after the time for appearance has elapsed, or within the time ordered by the court, as provided in the preceding section; but for good cause shown the court Whitehouse E. P. Vol. 11—17 1148 EQUITY PRACTICE may in either case enlarge the time therefor. In default of such defence the bill shall be taken, pro confesso, as matter of course, on motion of plaintiff in writing, filed on any day after such default, and served on the defen- dant. But such decree may be opened, on motion of de- fendant within ten days thereafter, as provided in said section. All answers shall be signed by the defendant and sworn to by him, if the plaintiff in his bill asks for an answer upon oath, otherwise it may be signed by the defendant, his agent or attorney, but in such case it has no effect as evidence, except to cast the burden of proof upon the plaintiff. (Me. E. S. 1903, c. 79.) §1434. Replication— Time for filing. Sec. 18. The plaintiff shall file a replication within fifteen days after notice has been served on him or his counsel that answer or plea has been filed, but such time may be enlarged on such terms as the court orders, or the bill may be dis- missed for want of prosecution, on motion filed by defend- ant at any time after said fifteen days, or at the ex- piration of the time ordered by the court for filing such replication. (Me. E. S. 1903, c. 79.) § 1435. Time for answer, replication and hearing — Court may fix. Section 1. In all causes in equity the court, by special order, may fix such time, or times, for filing answer, plea or demurrer, or replication, or for hearing of the cause, as justice may require. (Me. Laws 1911, c. 25; E. S. 1915 (Comm'r's Eeport) c. 80, Sec. 16.) § 1436. Masters in chancery — Appointment — Term — Duties — Fees. Sec. 10. The court by majority, shall ap- point masters in chancery, not mgre than five in a county, and make all needful rules relating to proceedings before them. Such masters shall be sworn, and hold their of- fices for five years, unless sooner removed by the court; perform the duties pertaining to their offices according to equity practice, and be entitled to the fees therefor allowed by the court. Unless the parties agree upon an- other person, all cases shall be committed to them. The fees and necessary expenses of masters so appointed, and of masters who shall act in any cause by agreement of parties, shall be fixed and allowed by the court upon the MAINE STATUTES AND RULES 1149 coming in of the report, and, if the court in its discretion shall so order, shall be paid by the county on presenta- tion of the proper certificate of the clerk of courts for that county. (Me. E. S. 1903, c. 79, as amended by Laws 1911, c. 28.) § 1437. Equity terms — Hearings — Issuance of process — Powers of single justice — Rule days. Sec. 11. Said court shall always be open in each county for equity proceedings, except upon days on which, by law, no court is held, and in the first instance, except as here- inafter provided, all hearings shall be had, all orders and decrees made, and all process issued by a single justice, except on appeal or exceptions as hereinafter provided, and said court shall establish rule days for the return of subpoenas and the transaction of business relating to equity cases. (Me. E. S. 1903, c. 79.) § 1438. Hearing — Court may fix— Jury trial. Sec. 19. When a demurrer is filed, the court upon motion of either party, may set the cause for hearing upon bill and demurrer at any time. When a plea or answer is filed, the court, upon the motion of the plaintiff, may set the cause for hearing upon bill and plea, or answer at any time. When a replication is filed, the court, upon the motion of either party, may set the cause for hearing upon bill, answer or plea, and evidence, but such hearing shall not be had until after thirty days from the filing the replication, unless by consent. When a jury trial is or- dered it shall be had at the next term after such thirty days. Any time fixed for hearing or trial may be ex- tended for good cause shown. (Me. E. S. 1903, c. 79, as amended by Laws 1909, c. 170.) § 1439. Evidence — Oral testimony — Transcribing. Sec. 20. At any hearing or trial in equity, the evidence may be presented wholly or partly by oral testimony, or by depositions. When oral testimony is used, it shall be re- duced to writing by the stenographer, certified by him, and filed with the depositions, for use in case of appeal. (Me. E. S. 1903, c. 79.) § 1440. Decrees — Power to enter. Sec. 21. The justice before whom such hearings are had, has full power to 1150 EQUITY PRACTICE decide any motion or cause so heard, and sliall make and enter such order and decree, as seems just and proper to him, and in accordance with the established principles of equity jurisprudence, subject to appeal and exceptions as hereinafter provided. (Me. E. S. 1903, c. 79.) § 1441. Appeals from final decrees — Entering — Hear- ing — Docket below. Sec. 22. From all final decrees of such justice, an appeal lies to the next term of the law court. Said appeal shall be claimed by an entry on the docket of the court from which the appeal is taken, within ten days after such decree is signed, entered and filed, and notice thereof has been given by such clerk to the parties or their counsel. The appellant shall enter such appeal, and furnish written or printed copies of the case on the first day of said law term, and for good cause shown, the law court may enlarge the time for furnishing such copies. Such appeals shall be heard at the term to which they are taken, unless otherwise agreed, or the law court shall for good cause, order a further time for the hearing thereof, and shall on such appeal, affirm, reverse, or modify the decree of the court below, or remand the cause for further proceedings, as it deems proper. All cases in which appeals or exceptions are taken from a final decree, shall remain on the docket of the court below, marked "law", and decree shall be en- tered therein by a single justice, in accordance with the certificate and opinion of the law court. (Me. E. S. 1903, c. 79.) § 1442. Receivers, injunctions and prohibitions while appeal pending. Sec. 23. "When an appeal is taken from a final decree, any justice may also make such order for the appointment of receivers, for injunction and prohibi- tion, or for continuing the same in force, and such other orders as are needful for protection of the rights of the parties, or as are usual in equity proceedings in such cases, until the appeal is determined by the law court. Such orders may be modified or annulled by such justice, or by such law court, while the appeal is pending before it. (Me. E. S. 1903, c. 79.) § 1443. Appeals from interlocutory decrees — Revision MAINE STATUTES AND RULES 1151 on appeal from final decree. Sec. 24, An appeal may be claimed and taken in like manner from any interlocutory decree or order, but such appeal shall not suspend any proceedings under such decree or order, or in the cause, and shall not be taken to the law court until after final de- cree. Upon an appeal from a final decree, all previous de- crees and orders are open for revision, reversal or ap- proval. (Me. E. S. 1903, c. 79.) § 1444. Reporting cause to law court. Sec. 25. Upon a hearing in any cause in equity, the justice hearing the same may report the cause to the next term of the law court, if he is of the opinion that any question of law is in- volved, or sufficient importance or doubt to justify the same, and the parties agree thereto. The cause shall be entered and copies furnished by the plaintiff, and shall be heard and decided by said law court in like manner and with like results as is herein provided in case of appeals. (Me. E. S. 1903, c. 79.) § 1445. Further time to appeal. Sec. 26. If any party intending to appeal, by accident or mistake, fails to do so, within the time limited therefor, he may within thirty days after the entry of the decree apply to any justice for leave to take such appeal, which may be granted on such terms as appear just and equitable. (Me. E. S. 1903, c. 79.) § 1446. Exceptions — Hearing — Findings. Sec. 27. Either party aggrieved may take exceptions to any rul- ing of law made by a single justice, the same to be accom- panied only by such parts of the case as are necessary to a clear understanding of the questions raised thereby. Such exceptions shall be claimed on the docket within the time allowed for appeal, and shall be made up, allowed and filed in the time provided therefor, unless further time is granted by the court, or by agreement of parties. In all other respects, such exceptions shall be taken, en- tered in the law court, and there heard and decided like appeals, with the same power in the single justice to make orders for injunction and prohibition, and the protection of the rights of the parties; and in the law court, to make orders and decrees pending the same and 1152 EQUITY PRACTICE upon decision thereof; provided that no question of fact- is open to the law court on such exceptions. And upon request of either party, the justice hearing the cause shall give separate findings of law and fact. The allow- ance and hearing of exceptions shall not suspend the other proceedings in the cause. (Me. E. S. 1903, c. 79.) § 1447. Dating orders and decrees. Sec. 28. Every order and decree shall bear date upon the day on which it was filed and entered, and the day of such filing and entering shall be entered by the clerk upon the docket and on the decree. (Me. K. S. 1903, c. 79.) § 1448. Issue of process for enforcement of decree. Sec. 29. No process for enforcement of a final decree save for the appointment of receivers, for injunction or prohibi- tion, or for continuing the same, shall issue within ten days from the entry of such decree, unless all parties waive an appeal by entry on the clerk's docket, or by writing filed in the cause, or consent in like manner to the issue thereof. (Me. E. S. 1903, c. 79.) § 1449. Recording decrees affecting real estate. Sec. 30. No judgment or decree divesting any person of title to real estate shall be effectual against any person not a party to the action in which such judgment or decree is rendered, and persons not having actual notice thereof, unless a copy of such judgment or decree or so much thereof as relates to the title to such real estate, duly certified by the clerk of courts in and for the county where said judgment or decree is rendered, is, within thirty days after the rendering of such judgment or decree, duly recorded in the registry of deeds in the county or district in which such real estate is situated. (Me. E. S. 1903, c. 79.) § 1450. Place of hearings. Sec. 31. Hearings and trials in equity cases may be had, and orders and decrees may be passed, at such place in any county as the justice applied to may appoint; and the clerk in the county in which the case is pending shall transmit the papers in the case to the justice to hear the same; and such justice shall return them after hearing with his orders and decrees therein to be filed and entered in such county. (Me. E. S. 1903, c. 79, as amended by Laws 1909, c. 170.) MAINE STATUTES AND RULES 1153 § 1451. Evidence on appeal. Sec. 32. All evidence be- fore the court below, or an abstract thereof, approved by the justice hearing the case, shall on appeal be re- ported. No witnesses shall be heard orally before the law court as a part of the case on appeal, but the court may, in such manner and on such terms as it deems proper, authorize additional evidence to be taken when the same has been omitted by accident or mistake, or dis- covered after the hearing. (Me. E. S. 1903, c. 79.) § 1452. Framing issues of fact — Confirming or setting aside verdict — Appeal and exceptions — Confinning or set- ting aside verdict — New trials. Sec. 33. The court may, in its discretion and upon application of either party, frame issues of fact in equity causes, to be tried by a jury in the county where such cause is pending. A single justice may confirm any verdicts rendered upon such issues, and enter appropriate decrees thereon, or he may set aside such verdicts, and render such decrees as equity requires, as if such issues had not been framed. In all causes where such issues are framed and tried, an appeal may be taken, and exceptions had to rulings of law, as herein- before provided, and upon such appeal or exception, the law court may confirm or set aside the verdicts rendered in the cause, or order a new trial of such issues, and make such disposal of the case as equity demands. All such appeals and exceptions shall be taken, heard and determined as provided by this chapter. (Me. E. S. 1903, c. 79.) § 1453. Issue of process to enforce decree. Sec. 34. Writs of seizin or execution, and all other processes appropriate to causes in equity, may be issued by the court, to enforce its decrees. (Me. E. S. 1903, c. 79.) §1454. Preliminary injunctions — Perpetual injunc- tions. Sec. 35. Preliminary injunctions may be granted by a single justice in term time or in vacation, upon the plaintiff filing a bond with sufficient sureties conditioned to pay all damages and costs caused thereby, if he is finally found not entitled to such injunction, unless a single justice, on motion to dissolve the same and hear- 1154 EQUITY PRACTICE ing on tlie merits thereof, refuses to dissolve it. Such damages and costs shall be awarded by the court on motioji, but if not so awarded before final decree, they may be determined in a suit on such bond. Such injunc- tion may also be granted to either party on hearing, with- out bond, upon oral evidence, depositions or affidavits, and upon such notice and with such time for pleading, evidence and hearing as the court directs. No pre- liminary injunction shall be granted to either party unless his pleadings contain an application therefor; but an injunction may be granted pending the suit, in proper cases, upon motion and hearing. Perpetual injunctions may be granted by the court or any justice thereof mak- ing final decree. (Me. E. S. 1903, c. 79.) § 1455. Summary process — Contempt — Hearing — Punishment — Appeal. Sec. 36. Whenever a party com- plains in writing, and under oath, that the process, decree or order of court, which is not for the payment of money only, has been disregarded or disobeyed by any person, summary process shall issue by order of any justice, re- quiring such person to appear on a day certain and show cause why he should not be adjudged guilty of contempt, and such process shall fix a time for answer to the com- plaint, and may fix a time for a hearing on oral testi- mony, depositions, or affidavits, or may fix successive times for proof, counter proof, and proof in rebuttal, or the time for hearing and manner of proof may be subse- quently ordered upon the return day or thereafter. The court may, for good cause, enlarge the time for such hearing. If the person so summoned does not appear as directed, or does not attend the hearing at the time ap- pointed therefor, as enlarged, or if, upon hearing, he is found guilty of such disregard or disobedience, he shall be adjudged in contempt, and the court may issue a capias to bring him before it to receive sentence, and may punish him bj^ such reasonable fine or imprisonment as the case requires. The court may allow such offender to give bail to appear at a time certain, when such punish- ment may be imposed, if he continues in contempt. But when a second time found guilty of contempt in disre- MAINE STATUTES AND RULES 1155 garding or disobeying the same order or decree, no bail shall be allowed. When such person purges himself of his contempt, the justice may remit such fine or imprison- ment or any portion thereof. No appeal lies from any order or decree for such punishment, nor shall exceptions thereto be allowed, save upon questions of jurisdiction, nor in any case shall such exceptions suspend the enforce- ment of any such order or decree, unless the court so directs. (Me. E. S. 1903, c. 79.) § 1456. Frivolous or vexatious exceptions or appeals — Certificate of justice — Decision — Costs. Sec. 37. When a justice deems any exceptions allowed by him, or any appeal in a proceeding in equity, frivolous and intended for delay, he may so certify on the motion of the party not excepting, and such exceptions and appeal and the record connected therewith shall be transmitted to the chief justice, and be argued in writing on both sides within thirty days thereafter, unless the justice trans- mitting the same, for good cause, enlarges the time, and they shall be considered and decided by the justices of said court as soon as may be, and the decision certified to the clerk of courts of the county where the cause is pending; and if the decision is adverse to the party tak- ing such appeal or exceptions, treble costs may be allowed the prevailing party. (Me. E. S. 1903, c. 79.) §1457. Overruling for want of prosecution. When exceptions are certified and transmitted to the chief ■justice as frivolous and intended for delay, and are not argued by the excepting party within thirty days there- after, or within such further time as the presiding justice shall have allowed therefor, they may be at once over- ruled for want of prosecution. (Me. Laws 1909, c. 137; E. S. 1915 (Comm'r's Eeport) e. 80, Sec. 57.) § 1458. Absent defendant not served with process — Review of decree — Supersedeas — Review in case of fraud, accident, or mistake — Time for filing petition. Sec. 38. In case of any decree, an absent defendant whose property has been attached and who does not appear by the record to have been served with process within the state and has made no appearance before final process, shall have a review within one year after final decree, as of right, 1156 EQUITY PRACTICE with stay or supersedeas of such process. The defendant may in such case apply to any justice by petition setting forth the grounds for such review, whereupon, if such justice orders reasonable notice to the other party to appear at a time and place named therein, to show cause why such review should not be granted, when such review is granted, the justice may prescribe the time in which the defendant's defense shall be made. Eeviews may also be granted on petition, whenever, by fraud, accident or mistake, and without fault of the party against whom the decree was ordered, justice has not been done; provided, that the petition therefor is filed within six years after final decree; and notice may be ordered and served with like rights of stay or super- sedeas as herein provided. Upon granting the review, the court may fix a time within which the next proceed- ing shall be had. (Me. E. S. 1903, c. 79.) § 1459. Review of interlocutory orders or decrees. Sec. 39. Nothing herein contained abridges the power of the court to hold all interlocutory orders and decrees subject to revision, at any time before final decree, except when they have been decided on appeal. (Me. E. S. 1903, c. 79.) §14G0. Rules. Sec. 40. The court shall make all proper rules for the regulation of equity practice neces- sary to simplify proceedings, discourage delays and lessen the expense of litigation, and it has full power for that purpose; but no rule of court now existing is repealed hereby, except so far as it is inconsistent herewith. (Me. • E. S. 1903, c. 79.) § 1461. Transfer of actions at law to equity. Sec. 14. When, in an action at law in the supreme judicial court, it appears that the rights of the parties can be better determined and enforced by a judgment and decree in equity, the court may, upon reasonable terms, strike out the pleadings at law, and require the parties to plead in equity in the same cause and may hear and determine the cause in equity. (Me. E. S. 1903, c. 84.) § 1462. Transfer of suit in equity to law side. Sec. 15. When in any equity proceeding in the supreme judicial court, it appears that the remedy at law is plain, adequate MAINE STATUTES AND RULES 1157 and complete and that the rights of the parties can be fully determined and enforced by a judgment and execu- tion at law, the court may upon reasonable terms strike out the pleadings in equity, and require the parties to plead at law in the same cause and may hear and de- termine the cause at law. (Me. E. S. 1903, c. 84.) § 1463. Transfer of action at law to equity docket. Sec. 16. When in an action at law commenced in either of the superior courts and pending in the supreme judicial court, sitting as a law court, it appears that the rights of the parties can be better determined and enforced by a judgment and decree in equity, the supreme judicial court may, upon reasonable terms, strike out the pleadings at law, and require the parties to plead in equity in the same cause; and thereupon the action shall be transferred to the docket of the supreme judicial court for the same county, and be heard and determined in equity in that court. (Me. E. S. 1903, c. 84.) § 1464. Equitable relief in action at law. Sec. 17. Any defendant may plead in defence to any action at law in the supreme judicial court, any matter which would be ground for relief in equity, and shall receive such relief as he would be entitled to receive in equity, against the claims of the plaintiff; such matter of defence shall be pleaded in the form of a brief statement under the gen- eral issue. And, by counter brief statement, any plaintiff may plead any matter which would be ground for relief in equity against any defence set up by any defendant in an action at law in said court, and shall receive such relief as he would be entitled to receive in equity against such claim of the defendant. (Me. E. S. 1903, c. 84.) § 1465. Equitable defences and replies in action at law — Transfer of cause. Sec. 18. In actions at law in the superior courts, equitable defences and equitable replies to matters of defence, may be pleaded by filing a brief statement thereof supported by affidavit that the matters so pleaded are true in fact. Thereupon the action shall be transferred to the docket of the supreme judicial court for the same county, and be heard and determined in that court. (Me. E. S. 1903, c. 84.) 1158 EQUITY PRACTICE § 1466. Protection of equitable rights in action at law. Sec. 19. Whenever in snch action any matter which would be ground for relief in equity is so pleaded by any party, the supreme judicial court may make such decrees and restraining orders as may be necessary to protect and preserve such equitable rights, and may issue injunctions, according to the usual practice of courts of equity. (Me. E. S. 1903, c. 84.) § 1467. Attachment to secure judgment. Sec. 20. No attachments shall be affected by proceedings under the six preceding sections. Either party to a cause may, upon petition, obtain from the court an order for the attachment of property of a party to the suit to secure any judgment which may be obtained, to be made on such precept as the court may order and to be recorded as in case of other attachments. ""(Me. E. S. 1903, c. 84.) § 1468. Equity to prevail. Sec. 21. In all proceedings in the supreme judicial court, under the seven preceding sections, when there appears to be any conflict or variance between the principles of law and those of equity, as to the same subject matter, the rules and principles of equity shall prevail. At the hearing of all equity causes, oral testimony shall be received as in trials at common law. (Me. E. S. 1903, c. 84.) § 1469. Proving execution of documents. Sec. 22. A party to any action in the supreme judicial court or superior courts, may file in the clerk's office of the court in the county where such action is pending, any document which he may deem material to the issue, and give to the adverse party notice of such filing and that he desires the execution of said document to be admitted. If within seven days after such notice, unless the time is enlarged by the court or a justice thereof, the adverse party shall not file in said clerk 's office a denial of the genuineness of the execution of said document, he shall be held to have admitted the same. (Me. E. S. 1903, c. 84.) § 1470. Death of party — Revivor against heirs or repre- sentatives. Sec. 51. When a party to a suit dies, and his death is suggested on the record, and the cause of action survives, his executor or administrator may be- MAINE STATUTES AND RULES 1159 come a party, or at the request of the other party, be summoned to appear and become a party. * * * jf the suit is in equity, his executor, administrator or heirs at law, may in like manner appear or be summoned with- out a bill of revivor. (Me. E. S. 1903, c. 84.) Secuking Costs of Non-Eesident § 1471. Indorsement of bill — Security. Sec. 6. Every writ original, or scire facias, of error, of audita querela, petition for writ of certiorari, for review, or for parti- tion, and bill in equity shall, when the plaintiff, petitioner or complainant is not an inhabitant of the state, upon motion filed in court at the first term, as of course, be indorsed by some sufficient inhabitant of the state, or security for costs furnished by deposit in court, in such amount as the court shall direct; and if pending such suit the plaintiff, petitioner or complainant removes from the state, such an indorser shall be procured or security for costs furnished on motion of the defendant or other party to the suit ; but if one of such plaintiffs, petitioners or complainants is an inhabitant of the state, no indorser or security shall be required except by special order of the court. (Me. E. S. 1903, c. 83.) § 1472. Proceedings against indorser. Sec. 7. In case of avoidance or inability of the plaintiff or petitioner, the indorser is liable, in an action on the case, brought within one year after the original judgment, in the court in which it was rendered, to pay all costs recovered against the plaintiff. A return upon the execution by an officer of the county, where the indorser lives, that he has de- manded of the indorser payment thereof, and that he has neglected to pay, or to show the officer personal property sufficient to satisfy the execution, or that he cannot find the indorser within his precinct, is conclusive evidence of his liability in the suit. (Me. E. S. 1903, c. 83.) § 1473. When new indorser necessary. Sec. 8. If pend- ing such suit, petition or process, any such indorser or deposit becomes insufficient or such indorser removes from the state, the court may require a new and sufficient indorser or additional deposit, and by consent of the 1160 EQUITY PRACTICE defendant the name of the original indorser may be struck out ; and such new indorser shall be liable or such deposit holden for all costs from the beginning of the suit ; and if such new indorser is not provided or security fur- nished within the time fixed by the court, the action shall be dismissed and the defendant shall recover his costs. (Me. E. S. 1903, .c. 83.) Suits to Quiet Title § 1474. Description of unknown or non-resident defend- ants — Joinder of parties plaintiff. Sec. 49. If, in a suit in equity to quiet or establish the title to land situated in this state or to remove a cloud from the title thereto, the plaintiff, or those under whom he claims, has been in uninterrupted possession of the land described in the bill for four years or more, claiming an estate of freehold therein, and seeks to determine the claims or rights of any persons who are unascertained, not in being, un- known or out of the state, or who cannot be actually served with process and made personally amenable to the decree of the court, such persons may be made defendants and, if they are unascertained, not in being or unknown, they may be described generally as the heirs or legal representatives of A B, or such persons as shall become heirs, devisees or appointees of C D, a living person, or persons claiming under A B. It shall not be necessary for the maintenance of such suit that the defendants shall have a claim or the possibility of a claim resting upon an instrument, the cancelation or surrender of which would afford the relief desired; but it shall be sufficient that they claim or may claim by purchase, descent or otherwise, some right, title, interest or estate in the land which is the subject of the suit and that their claim depends upon the construction of a written instrument or cannot be met by the plaintiffs without the production of evidence. Two or more persons who claim to own sep- arate and distinct parcels of land in the same county by titles derived from a common source, or two or more persons who have separate and distinct interests in the same parcel, may join as plaintiffs in any suit brought MAINE STATUTES AND RULES 1161 Tinder the provisions of this section. (Me. E. S. 1903, c. 106, as amended by Laws 1909, c. 93.) § 1475. Service by posting or publication — Appoint- ment of agents, etc. — Cost of appearance. Sec. 50. If in such suit the court finds that actual service cannot be made upon a defendant, it may order notice of the suit to be posted in a conspicuous place on the land or to be published in a newspaper within or without the state, or both, or to be given in such other manner as it considers most effectual, and may also require personal notice to be given. Notice given under the provisions of this sec- tion shall be constructive service on all the defendants. If, after notice has been given or served as ordered by the court and the time limited in such notice for the appearance of the defendants has expired, the court finds that there are or may be defendants who have not been actually served with process within the state and who have not appeared in the suit, it may of its own motion, or on the representation of any party, appoint an agent, guardian ad litem or next friend of any such defendant, and if any such defendants have or may have conflicting interests, it may appoint different agents, guardians ad litem or next friends to represent them. The cost of appearance of any such agent, guardian ad litem or next friend, including the compensation of his counsel, shall be determined by the court and paid by the plaintiff, against whom execution may issue therefor in the name of the agent, guardian ad litem or next friend. (Me. E. S. 1903, c. 106.) §1476. Decree against defendants not personally served. Sec. 51. After all the defendants have been served with process or notified as provided in the preced- ing section and after the appointment of an agent, guardian ad litem or next friend, if such appointment has been made, the court may. proceed as though all the defendants had been actually served with process. Such suit shall be a proceeding in rem against the land, and a decree establishing or declaring the validity, nature or extent of the plaintiff's title may be entered, and shall operate directly on the land and shall have the force of 1162 EQUITY PRACTICE a release made by or on behalf of all defendants of all claims inconsistent with the title established or declared thereby. The provisions of this and the two preceding sections shall not prevent the court from also exercising jurisdiction in personam against the defendants who have been actually served with process and who are personally amenable to its decrees. (Me. E. S. 1903, c. 106.) § 1477. Wild lands. Sec. 52. Any person or persons claiming an estate of freehold in wild land or in an inter- est in common and undivided therein, if the plaintiff and those under whom he claims, has for four years next prior to the filing of the bill held such open, ex- clusive, peaceable, continuous and adverse possession thereof as comports with the ordinary management of wild lands in Maine, may maintain a suit in equity to quiet or establish the title thereto or to remove a cloud from the title thereto, as provided in the three preceding sections. (Me. E. S. 1903, c. 106, as amended by Laws 1909, c. 93.) Eedemption of Mortgaged Premises § 1478. Right of redemption — Demand of accounting — Bill. Sec. 15. Any mortgagor, or other person having a right to redeem lands mortgaged, may demand of the mortgagee or person claiming under him a true account of the sum due on the mortgage, and of the rents and profits, and money expended in repairs and improve- ments, if any; and if he unreasonably refuses or neglects to render such account in writing, or, in any other way by his default prevents the plaintiff from performing or tendering performance of the condition of the mortgage, he may bring his bill in equity for the redemption of the mortgaged premises within the time limited in section seven,* and therein offer to pay the sum found to be equitably due, or to perform any other condition, as the case may require; and such offer has the same force as a tender of payment or performance before the commence- ment of the suit; and the bill shall be sustained with- * The time prescribed is one year after the first publication or service of notice of foreclosure. (Me. E. S. 1903, c. 92, sec. 7, as amended.) MAINE STATUTES AND RULES 1163 out sucli tender, and thereupon he shall be entitled to judgment for redemption and costs. (Me. E. S. 1903, c. 92.) § 1479. Redemption after payment or tender where mortgagee never in possession. Sec. 16. When the amount due on a mortgage has been paid or tendered to the mortgagee, or person claiming under him, by the mortgagor or the person claiming under him, within the time so limited, he may have a bill in equity for the re- demption of the mortgaged premises, and compel the mortgagee, or person claiming under him, by a decree of the supreme judicial court, to release to Mm all his right and title therein ; although such mortgagee or his assignee has never had actual possession of the premises for breach of the condition ; or, without having made a tender before the commencement of the suit, he may have his bill in the manner prescribed in the preceding section, and the cause shall be tried in the same manner. (Me. K. S. 1903, c. 92.) § 1480. Redemption before breach of condition or ten- der of payment where mortgagee non-resident — Notice — Fraudulent mortgage. Sec. 17. When a bill to redeem is brought before an actual entry for breach of the con- dition, and before payment or tender, if the mortgagee, or person claiming under him, is out of the state and has not had actual notice, the court shall order proper notice to be given him, and continue the cause as long as neces- sary. When a mortgage is alleged and proved to be fraudulent, in whole or in part, an innocent assignee of the mortgagor, for a valuable consideration, may file his bill within the time allowed to redeem, and be allowed to redeem without a tender. (Me. E. S. 1903, c. 92.) § 1481. Redemption where mortgagee non-resident or residence unknown. Sec. 18. When a mortgagee, or per- son claiming under him, residing out of the state, or whose residence is unknown to the party entitled to re- deem, has commenced proceedings under section five,* or when such mortgagee or claimant having no tenant, agent * Me. E. S. 1903, c. 92, sec. 5. Whltehouse E. P. Vol. 11—18 1164 EQUITY PRACTICE or attorney in possession on whom service can be made, has commenced proceedings under section three,* in either case the party entitled to redeem may file his bill, as prescribed in section fifteen, and pay at the same time to the clerk of the court the sum due, which payment shall have the same effect as a tender before the suit ; and the court shall order such notice to be given of the pendency of the suit, as it judges proper. (Me. E. S. 1903, c. 92.) § 1482. Payment or tender to non-resident mortgagee before foreclosure — Proceedings for redemption — Notice — Discharge of mortgage. Sec. 19. When an amount due on a mortgage has been paid, or tendered to the mort- gagee, or person claiming under him, before foreclosure of the mortgage, and the mortgagee or his assignee is out of the state, and the mortgage is undischarged on the record, the mortgagor or person claiming under him, may have his bill in equity for the redemption of the mort- gaged premises, as provided in section sixteen, or for the discharge of the mortgage; and on notice of the pen- dency of the bill, given by publication in some newspaper in the county where said premises are situated, for three weeks successively, the last publication being thirty days before the time of hearing, or in such other way as the supreme judicial court or a justice thereof, in vacation, orders, said court may decree a discharge of such mort- gage; and the record of such decree in the registry of deeds in said county is evidence of such discharge. (Me. R. S. 1903, c. 92.) § 1483. Time for proceedings founded on tender or per- formance before suit. Sec. 20. No bill in equity shall be brought for redemption of mortgaged premises, founded on a tender of payment or performance of the condition made before commencement of the suit, unless within one year after such tender. (Me. E. S. 1903, c. 92.) § 1484. Joinder of parties after suit commenced. Sec. 21. In any suit brought for the redemption of mortgaged premises, when it is necessary to the attainment of justice that any other person, besides the defendant, claiming an » Me. R. S. 1903, c. 92, sec. 3. MAINE STATUTES AND RULES 1165 interest in the premises, should be made a party with the original defendant, the court on motion, may order him to be served with an attested copy of the bill amended in such manner as it directs, and on his appearance, the cause shall proceed as though he had been originally joined. (Me. R. S. 1903, c. 92.) § 1485. Execution. Sec. 22. The court, when a decree is made for the redemption of mortgaged lands, may award execution jointly or severally, as the case requires; and for sums found due for rents and profits over and above the sums reasonably expended in repairing and increasing the value of the estate redeemed. (Me. E. S. 1903, c. 92.) § 1486. Deductions from money paid into court for re- demption. Sec. 23. When money is brought into court in a suit for redemption of mortgaged premises, the court may deduct therefrom such sum as the defendant is chargeable with on account of rents and profits by him received, or costs awarded against him; and the person to whom money is tendered to redeem such lands, if he receives a larger sum than he is entitled to retain, shall refund the excess. Any mortgagee or person holding under him when requested by an assignee in insolvency or trustee in bankruptcy to render a statement of the amount due on a mortgage given by the insolvent where there is an equity of redemption shall render a true state- ment to the assignee or trustee of the amount due on such mortgage and for any loss resulting to the insolvent estate from any misrepresentation of the amount due, the assignee or trustee shall have a right of action on the case against such person to recover such loss. (Me. E. S. 1903, c. 92.) Redemption by Non-Eesident from Execution § 1487. Time and manner of proceeding. Sec. 52. A defendant living out of the state, defaulted in an action without an appearance or other service than a newspaper publication, may, within six months after the levy of an execution on his real estate or the sale of a right of redemption, petition for a review of such action, and 1166 EQUITY PHACTICE instead of the year allowed in other cases, he may redeem from such levy or sale at any time within three months after the review is denied, or after final judgment on the writ of review. If such judgment is in his favor, the amount thereof shall be allowed towards such redemp- tion, notwithstanding a conveyance of such estate by the creditor; and if it is larger than the amount of the levy or sale, and interest, he shall have an execution for the balance. (Me. E. S. 1903, c. 78.) § 1488. Bill in equity after judgment in review. Sec. 53. No strip or waste shall be made on such estate before or during the pendency of proceedings under the preced- ing section; and after final judgment in review, the plain- tiff in review, besides other remedies, may, within said three months, without a tender or demand to account, bring his bill in equity for the redemption of such estate. (Me. R S. 1903, c. 78.) RULES OF COUET * § 1489. The court. The court, held by one justice, may sit in equity in any county upon any day not prohibited by statute. (Me. Chancery, Eule 1.) § 1490. Clerk. The clerks of the court shall act as clerks in chancery and may, as of course, issue such pro- cesses and make and enter such orders as do not require the consideration of the court. They may keep for equity causes a separate docket upon which they shall minute in detail all proceedings in the cause, with the date, and by whom each order is made. (Me. Chancery, Eule 2.) § 1491. Rule days. Eule days shall be held the first Tuesday of each month at ten o'clock in the forenoon, at the court house in each county for the proper despatch of equity business, when and where all processes shall be returnable, unless otherwise ordered by the court or directed by statute. (Me. Cliancery, Eule 3.) * The first rules for the regulation of chancery practice in Maine were adopted by the Supreme Court at the November term, 1830, and are pub- lished in Volume 6 of the Maine reports. These rules were successively revised in 1842 (found in 18 Me.), 1855 (37 Me.), and 1881 (72 Me.) in the May term, 1890 (82 Me.), and in the June term, 1908 (103 Me.). This last revision of 1908 constitutes the present Chancery Bules, in effect Janu- ary 1, 1915, MAINE STATUTES AND RULES 1167 § 1492. The bill. Bills shall be drawn succinctly and in paragraphs numbered seriatim and without prolixity or unnecessary repetition. The confederacy clause, the charging part, and the jurisdictional clauses may be omitted. The prayer for answer may be omitted, unless discovery is sought or answer upon oath is desired. The prayer for relief shall state the specific relief sought and may also ask for general relief. The prayer for process shall con- tain sufficient information for the proper frame thereof. Bills shall be addressed : ' ' To the Supreme Judicial Court. In Equity. A. B. of complains against C. D. of and says: First: — " etc. (Me. Chancery, Eule 4.) § 1493. Verification. Bills for discovery and those praying for injunction must be verified by oath. (Me. Chancery, Eule 5.) § 1494. Process. Process shall not issue until the bill is filed, unless the bill be inserted in a writ, when no special process shall issue until the writ is filed. Upon the filing of a bill, subpoena shall issue and be return- able as provided by statute, or as the court may order. (Me. Chancery, Eule 6.) § 1495. Service on non-residents. When it shall appear that a defendant is and resides out of the State, the clerk on application of the plaintiff at any time after filing the bill shall enter an order for the defendant to appear and answer the bill, if in any of the States of the United States, or the Territory of Arizona or New Mexico, or in any of the Provinces of the Dominion of Canada, within one month ; if in any other part of North America includ- ing the West India Islands, or in Europe or Egypt, within two months; if in any other part of the world, within three months, after the date of the service of the order upon him, if personally served, or after the last publica- tion of the order, if served by publication only. A copy of the order and of the bill attested by the clerk shall be served on such defendant in person within three months 1168 EQUITY PRACTICE from the date of the order by an officer qualified to serve civil processes in the place where served, or in any foreign country by such officer, or by a consul, vice-consul or consular agent of the United States in such foreign country, or by any person specially appointed by the court to serve the order; or the order and attested copy of the bill shall be published three times in different weeks, all within thirty days after the date of the order, in some newspaper published in the country where the suit is pending. The return of personal service shall be verified by the affidavit of the person making the service. In case of service by an officer, his authority shall be certi- fied by the clerk of a court of record, if within the United States or any of its possessions, and if without the United States or its possessions, by such a clerk, or by a United States consul, vice-consul or consular agent. (Me. Chancery, Eule 7.) § 1496. Appearance. Appearance shall be entered on the docket by the party or his counsel or filed with the clerk. (Me. Chancery, Eule 8.) §1497. Pleadings in defence. Pleadings in defence may omit formal clauses not essential to the merits of the cause. (Me. Chancery, Eule 9.) § 1498. Answers. Answers shall be concise and direct in statement, and shall fully and particularly answer each paragraph of the bill; and shall be paragraphed and numbered to conform thereto so far as may be. Answers not in compliance with this rule may be stricken from the files and a new answer ordered with costs, or the bill may be taken pro confesso for want of an answer. Answers shall be entitled: "In the Supreme Judicial Court, In Equity, A. B. vs. C. D. The answer of C. D., who answers and says: First: — " etc. (Me. Chancery, Eule 10.) § 1499. Jury trials. If the defendant desires any issues of fact be submitted to a jury, he shall at the close of his answer make such claim and succinctly state such issues. If the plaintiff desires any issue of fact submitted MAINE STATUTES AND RULES 1169 to a jury, he shall make such claim at the end of his replication, and succinctly state the issues. (Me. Chan- cery, Eule 11.) § 1500. Jurats. Oaths to bills and answers shall be upon the affiant's own knowledge, information or belief; and, so far as upon information and belief, that he be- lieves his information to be true. (Me. Chancery, Eule 12.) § 1501. Discovery, etc. Discovery and answer, when necessary to the entering of a proper decree, may be required; and to enforce the same a writ of attachment may issue by special order of the court, on which the defendant will be bailable on a bond with sufficient sure- ties given to the plaintiff in such sum as the court* may order, which is to be returned with the writ. In case of neglect of the defendant to enter his appearance accord- ing to the statute, the bond shall be forfeited, and may be enforced by petition and notice thereon; and on a sum- mary hearing, damages may be assessed and an execu- tion issue therefor; and a new writ of attachment may issue on a special order therefor, on which he will not be bailable. (Me. Chancery, Eule 13.) § 1502. Demurrers and pleas. Defences by demurrer or plea may be inserted in an answer; and unless the plaintiff sets such defences for hearing before a single Justice in order that proper amendments may be speedily had (and such defences prevail in the Law Court), no amendment on account thereof shall then be allowed, except upon terms. (Me. Chancery, Eule 14.) § 1503. Certification of demurrers and pleas. De- murrers and pleas shall not be filed until certified by counsel to be in good faith, and that they are not intended for delay; and if pleas, that they are true in fact. (Me. Chancery, Eule 15.) § 1504. Answers to cross-bills. The answer to a cross- bill shall not be required before answer is made to the original bill. (Me. Chancery, Eule 16.) § 1505. Replications. The replication shall state in sub- stance that the allegations in the bill are true and those in the answer are not true. (Me. Chancery, Eule 17.) 1170 EQUITY PRACTICE § 1506. Signature of counsel. Counsel shall sign all pleadings as a guaranty of good faith. (Me. Chancery, Eule 18.) § 1507. Exceptions to bills. Exceptions to bills may be filed within twenty days after return day, and to answers within ten days after notice that they have been filed; and the exceptions shall be disposed of by reference to a master, or otherwise, as the court may direct. Costs, double and treble, may be awarded on exceptions and execution issued therefor as the court may order. (Me. Chancery, Eule 19.) § 1508. Amendments. Amendments as to parties shall be made under order of court. Other amendments may be made before issue as of course. After issue, amend- ments may be allowed by the court with or without terms. (Me. Chancery, Eule 20.) § 1509. BiUs of revivor. Amendments may serve the purpose of bills of revivor or bill supplemental or bills of that nature, but they shall be served as such bills should be served. (Me. Chancery, Eule 21.) § 1510. Setting cause for hearing. When a demurrer is filed, the court upon motion of either party may set the cause for hearing upon bill and demurrer at any time. When a plea or answer is filed, the court upon motion of the plaintiff may set the cause for hearing upon bill and plea, or bill and answer, at any time. When a replication is filed to a plea or answer the court upon motion of either party may set the cause for hearing upon bill, plea or answer, and evidence, but such hearing shall not be had until after sixty days from the filing of the replica- tion unless by consent. If a jury trial has been duly asked for in the answer or replication and is moved for in the motion for a hearing, the court in setting the cause for hearing may in its discretion order a jury trial and frame the issues therefor. The cause shall in such case be in order for trial at the jury term next after such sixty days in the county where the case is pending. Any time fixed for hearing or trial may be extended for good cause shown. (Me. Chancery, Eule 22.) § 1511. Overruled defences. A defence interposed in MAINE STATUTES AND RULES 1171 one form and overruled shall not afterwards be sustained upon subsequent pleadings in the same case. (Me. Chan- cery, Rule 23.) § 1512. Oral evidence. At any hearing or trial in equity the evidence of witnesses may be presented by oral testi- mony or by depositions or both. When oral testimony is given it shall be reduced to writing by the court stenographer, certified by him and filed with the deposi- tions. (Me. Chancery, Rule 24.) § 1513. Documentary evidence. Deeds and other in- struments in writing or copies of them certified by counsel may be filed with the clerk and notice given twenty days before the hearing or trial, and may then be admitted in evidence without proof of execution if otherwise ad- missible, unless the execution is denied, or fraud in rela- tion thereto be alleged, of which notice given within ten days after notice that they are filed. Copies of any votes, entries or other records upon the books of any corporation, or of any papers on its files attested by its clerk may be received as evidence, instead of the books and papers unless it shall appear that the opposite counsel has been denied access to them at reasonable hours. (Me. Chancery, Rule 25.) § 1514. Production of documents. When books, papers or written instruments material to the issue are in posses- sion of the opposite party and access thereto is refused, the court upon motion, notice and hearing, may require their production for inspection. Extracts from any books, papers or instruments thus produced, verified by counsel, may be filed as documentary evidence by either party, instead of the originals. (Me. Chancery, Rule 26.) § 1515. Allegations not traversed. All allegations of fact well pleaded in bill, answer or plea, when not traversed, shall be taken as true. (Me. Chancery, Rule 27.) § 1516. Decrees. When a party is entitled to a decree in his favor, he shall draw the same and file it, and give notice. If corrections are desired, they shall be filed within five days after receipt of notice. If the corrections are 1172 EQUITY PRACTICE adopted, a new draft shall be prepared and submitted to the justice who heard the case, for approval. If they are not adopted, notice shall be given of the time and place, when and where the matter will be submitted to such justice for decision, and he shall settle and sign the decree. When the Law Court has certified its decision upon an appeal or exceptions from a final decree, and a decree has been entered therein by a single justice in accordance with the certificate and opinion of the Law Court, a party aggrieved by the form of such last named decree may within ten days take exceptions thereto. Such exceptions and the record connected therewith, in- cluding a copy of the opinion of the court, shall be trans- mitted to the Chief Justice and be argued in writing on both sides within thirty days thereafter and they shall be considered and decided by the Justices as soon as may be. If the decision is adverse to the exception party, treble costs on these exceptions may be allowed to the prevailing party. (Me. Chancery, Eule 28.) § 1517. Forms of decrees. Drafts of orders and decrees shall be entitled with the name of the county, the date of the hearing, the docket number of the cause, and the names of the parties, and may then proceed substantially as follows: "This cause came on to be heard (or, to be further heard, as the case may be), this day and was argued by counsel; and thereupon, upon consideration thereof, it is ordered, adjudged and decreed, as follows, viz.: (Here insert order or decree.)" No part of the pleadings, the master's report, or any prior proceeding, need be recited or stated. (Me. Chancery, Eule 29.) § 1518. Master. When any matter shall be referred to a master, he shall, upon the application of either party, assign a time and place for a hearing which shall be not less than ten days thereafter; and the party obtaining the reference shall serve the adverse party, at least seven days before the time appointed for the hearing, with a summons signed by the master requiring his attendance at such time and place, and make proof thereof to the master; and thereupon, if the party summoned shall not appear to show cause to the contrary, the master may MAINE STATUTES AND RULES 1173 proceed ex parte; and if the party obtaining the reference shall not appear at the time and place, or show cause why he does not, the master may either proceed ex parte, or the party obtaining the reference shall lose the bene- fit of the same at the election of the adverse party. (Me. Chancery, Rule 30.) § 1519. Compensation of master. The compensation to be allowed to masters for their services shall be fixed by the court in its discretion in each case, having regard to all the circumstances thereof and the compensation shall be charged upon and borne by such of the parties in the cause as the court shall direct. The master shall not retain his report as security for his compensation; but when it is allowed he shall be entitled to an attach- ment for the amount against the party ordered to pay the same, if, upon notice thereof, he does not pay it within the time prescribed by the court. (Me. Chancery, Rule 31.) § 1520. Exceptions to master's report. When excep- tions shall be taken to the report of a master, they shall be filed with the clerk at once and notice thereof be forth- with given to the adverse party, and the exceptions shall then be set for agrument. In every case the exceptions shall briefly and clearly specify the matter excepted to, and the cause thereof; and the exceptions shall not be valid as to any matter not so specified. (Me. Chancery, Rule 32.) § 1521. Costs. When a party is entitled to costs, his counsel will tax each item of the bill in a fair hand- writing, referring to the documents on file or inclosed with it as proofs, and give notice thereof. The opposing counsel may, within two days after notice, make his objections to the same in writing and give notice. A reply may be made in writing and the bill filed with these inclosed papers for the decision of the clerk, who will make his decision in writing, from which either party may appeal and submit the papers to a justice of the court for decision. The clerk may regard costs as cor- rectly taxed, when the opposing counsel certifies in writ- ing on the back of the bill that he does not find cause to 1174 EQUITY PRACTICE object, or when no objections are made witbin two days after notice of taxation. (Me. Chancery, Rule 33.) § 1522. Responsibilities of attorney. The attorney making the application will be personally responsible for the payment of fees to commissioners, examiners, stenog- raphers, or magistrates taking testimony; to the clerk for his fees; and for costs imposed as terms of amendment or relief. When it shall be made to appear by the affidavit of a person interested, that an attorney who is so liable has, after request, neglected to pay, he will, unless good cause is shown for such neglect, be suspended from prac- tice in equity cases, until payment is made. When any attorney or counsel shall violate the great confidence reposed in him by these rules, he will be suspended in like manner, until the further order of court. (Me. Chan- cery, Eule 34.) § 1523. Verification of copies. Copies required by these rules may be verified by signature of counsel, who will be held responsible for the accuracy thereof. (Me. Chan- cery, Eule 35.) § 1524. Notices. Notices required by these rules will be served in wi'iting and signed by counsel, and delivered to the opposing counsel, or left at his office, when he has one in the same city or village; and in other cases shall be properly directed to him and placed in the post-office and postage paid. Copies are to be preserved and pro- duced, and the original will in all cases be regarded as received when the counsel giving the notice produces a memorandum, made at the time on the copy retained, of its having been delivered or sent by mail on a day certain, unless the reception is positively, and not for a want of recollection denied on affidavit. Either party may desig- nate on the docket the name of his coimsel to whom notices are to be given, and in such case none will be good unless given to him. In case of a change of such counsel, notice will be given thereof, and the change noted on the clerk's docket. (Me. Chancery, Rule 36.) § 1525. Presenting application once acted upon to dif- ferent justice. When an application for an injunction, or for any order or decree under the statute or these rules, MAINE STATUTES AND RULES 1175 is made to one justice of the court, and the same has been acted upon by him, it shall not be presented to any other justice. (Me. Chancery, Eule 38.) § 1526. Writs of injunction. Writs of injunction, pre- liminary, pending the suit, or perpetual, may be granted according to the principles of equity procedure and as authorized by the statute and may be in the form annexed with such changes as the case may demand. (Me. Chan- cery, Eule 38.) § 1527. Rehearings. Applications to the discretion of the court for a rehearing may be made on petition, veri- fied as required by rule twelve, setting forth particularly the facts, name of each witness, and the testimony ex- pected from him. The petitioner can examine only wit- nesses named, except to rebut the opposing testimony. The petition having been presented to a justice of the court and by him allowed, may be filed, and the same proceedings may be had thereon as on an original bill. If the decree has not been executed, such justice of the court may suspend its execution until the further order of court, by a writ of supersedeas or order, on the peti- tioner's filing a bond, with sufficient sureties, in such sum and to be approved in such manner, as he may direct, conditioned to perform the original decree in case it shall not be materially modified or reversed, and pay all inter- mediate damages and costs. (Me. Chancery, Rule 39.) § 1528. Interlocutory hearings. "When the decision of a justice is desired upon any interlocutory matter, the clerk shall forward to him the papers in the cause and enter his decision as soon as received. (Me. Chancery, Eule 40.) Note. — The Eeport to the Legislature of 1915 by the Commissioner on the Revision of the Statutes of Maine has not been acted upon at the time of going to press. By that Eeport, the sections above given in Chapter XXXIV are unaltered except as to numbering. In the event of its adoption, Chapters 78, 79, 83, 84, 92 and ]06 of the Eevised Statutes of 1903 become Chapters 79, 80, 84, 85, 93 and 107, respectively, by the Commissioner's Eeport; the numbering of the above sections within these Chapters is unchanged, except that sections 14 to 22 and 51 of Chapter 84 above given become sections 15 to 23 and 53, respectively, of Chapter 85 ; and sections 49 to 52 of Chapter 106 become sections 52 to 55 of Chapter 107. CHAPTER XXXV MARYLAND STATUTES * Abatement and Revivor § 1529. When death does not abate. 1. No suit in chancery shall abate by the death of any of the parties in cases where the rights involved in the suit survive. (Md. Ann. Code 1911, Art. 16.) § 1530. Suggestion of death of party. 2. If any of the parties to a suit in chancery, whether plaintiff or defend- ant, shall die after the filing of the bill or petition, it shall not be necessary to file a bill or revivor; but any of the surviving parties may file a suggestion of such death, setting forth when the death occurred, and who is the legal representative of such deceased party, and how he is representative, whether by devise, descent or otherwise. (Md. Ann. Code 1911, Art. 16.) § 1531. Subpoena for representative of deceased party — Notice to non-resident. 3. Upon such suggestion, a subpoena shall issue for the legal representative of the deceased party, commanding him to appear and be made a party to such suit, if such representative resides in this state; and if such representative is a non-resident, then such notice shall be given, instead of the subpoena, as is provided for non-resident defendants. (Md. Ann. Code 1911, Art. 16.) § 1532. Suggestion of death by representative of de- ceased party. 4. Any representative of a deceased party may appear and suggest in writing the death of the party * Code of 1904, as amended by laws of 1906, 1908, 1910, 1912 and 1914; corrected to January 1, 1915. See Bagby's 1911 annotated edition of the Code. 1176 MARYLAND STATUTES AND RULES 1177 Tinder whom he claims, and be made a party in place of the person so dying, and proceed with the suit, on giving such notice to the opposite party as the court may direct. (Md. Ann. Code 1911, Art. 16.) § 1533. Death of representative of deceased party. 5. Where an executor or administrator dies who was origi- nally a party, or has been made a party as the repre- sentative of a deceased party, the same proceedings as above stated shall be had to make the proper parties; and these provisions are to apply to any series of deaths which may occur to representatives who are parties, or who are made parties in the progress of the suit. (Md. Ann. Code 1911, Art. 16.) § 1534. Death of party after cause set down or sub- mitted — Decree. 6. If any party shall die after a cause has been set down for hearing, or submitted by both parties as ready for decision, the decree may be passed as if such party were alive, he having a solicitor in court ; and such decree shall have the same effect as if no death had occurred, except that it shall not be entitled to a preference in the distribution of assets, either real or personal. (Md. Ann. Code 1911, Art. 16.) § 1535. Death after decree for account, sale or parti- tion, or after answer — Appearance by heir. 7. If any defendant shall die after a decree for an account, sale or partition, or after such other proceedings have been had after appearance as would have warranted the pass- ing of such decree, or if such deceased defendant shall have answered, confessing the facts stated in the bill, or shall have set up no defence to the relief therein prayed, the court may in its discretion order the case to be proceeded in as if no death had occurred, or may order a bill of revivor or a supplemental bill to be filed, and the proper representative of such deceased defendant to be a party, as may seem best calculated to advance the purposes of justice; provided, that the heir or other proper representative of such deceased defendant, at any time before final decree, may appear and be made a party on such reasonable terms as the court may direct, and such new party may file an answer to the original bill. 1178 EQUITY PRACTICE subject to such terms as the court may impose, in which he may insist on such defences, and none other, as might have been made if a bill of revivor, or supplemental bill in nature of a bill of revivor, had been filed against him. (Md. Ann. Code 1911, Art. 16.) § 1536. Death of party after final decree — Proceedings. 8. If any of the parties to a suit die after final decree, the court may order execution of such decree as if no death had occurred, or the court may order a subpoena scire facias to be issued, or a bill of revivor to be filed against the proper representatives of such deceased party, or pass such other order or direct such other pro- ceedings as may seem best calculated to advance the pur- poses of justice; provided, that the heir or other proper representative may appear, at any time before execution of said decree, and be admitted a party to the suit, on such reasonable terms as the court may prescribe, and such further proceedings may be had as may be neces- sary to a decision of said cause on its merits. (Md. Ann. Code 1911, Art. 16.) § 1537. Failure of representative to appear. 9. If any representative of a deceased party shall fail to- appear after being summoned, within four days after the return day of the subpoena, or shall fail to appear after notice by publication, the court may order the appearance of such representative to be entered ; to have the same effect as if such representative had appeared in person and been made a party. (Md. Ann. Code 1911, Art. 16.) § 1538. Service on representative evading process. 10. Any representative of a deceased party who shall secrete himself, or in any manner evade the service of any process issued against him, may, on proof of that fact to the satisfaction of the court, be proceeded against as if he were a non-resident defendant. (Md. Ann. Code 1911, Art. 16.) § 1539. Service on absent parties on death of party. 11. In all cases where any of the parties to a suit may die, and any party to such suit or representative of a deceased party shall leave the state before the process or notice which such death may render necessary is MARYLAND STATUTES AND RULES 1179 served on him, lie may be proceeded against as if he were a non-resident defendant. (Md. Ann. Code 1911, Art. 16.) § 1540. Bill of revivor— Service of notice. 12. A bill of revivor or supplemental bill in the nature of a bill of revivor may be filed instead of a suggestion of the death of the party, and notice thereof shall be given to the party against whom the same may be filed, if a resi- dent of this State, by subpoena, or service of a copy of such bill of revivor or supplemental bill, as the court may direct; or if the party be a non-resident, or secrete him- self, or evade the service of the summons or copy, or if the residence of the party be unknown, then notice by publication may be given as against non-resident defend- ants. (Md. Ann. Code 1911, Art. 16.) § 1541. Marriage of party — Bringing in spouse. 13. No suit in equity shall abate by the marriage of any of the parties, but on application of any of the parties the court may, on such terms and notice as it shall deem proper, allow and order any amendment in the pleadings, and the making of any new or additional parties that such marriage may render necessary or proper. (Md. Ann. Code 1911, Art. 16.) Amendment § 1542. Right to amend. 17. Upon application of either plaintiff or defendant to any court of equity, he shall have the right, upon payment of such costs as the court may direct, to amend at any time before final decree, the bill of complaint, answer, pleas, demurrers, or any of the proceedings in any cause before the court, so as to bring the merits of the case in controversy fairly to trial. (Md. Ann. Code 1911, Art. 16.) § 1543. Amendment where party under disability or non-resident — Pleadings and proof. 18. In any suit in chancery where any of the parties are under age, femes covert, of unsound mind or non-residents, the proceed- ings may be amended by making new parties or other- wise, and it shall not be necessary to have any new plead- ings or proofs in such cases of amendment, unless the court shall deem such new pleadings and proofs neces- Whitehouse E. P. Vol. 11—19 1180 EQUITY PKACTICE sary to promote the ends of justice, or unless such new party desires to plead or objects to the proof. (Md. Ann. Code 1911, Art. 16.) AlTDITOE § 1544. Laying matters before auditor. 21. Whenever a reference of any matter is made to the auditor for examination and report thereof, or for the statement of an account, the party at whose instance the reference is made, shall, within a reasonable time, and without any unnecessary delay, cause the matter of reference to be laid before the auditor for his action; and if such party shall omit to do so, any other party interested in the subject-matter of the reference shall be at liberty to cause the matter to be laid before the auditor, who shall proceed therein without delay. (Md. Ann. Code 1911, Art. 16.) § 1545. Proceedings by auditor — Notice — Adjourn- ments. 22. Upon every such reference it shall be the duty, of the auditor, as soon as he reasonably can, after the matter of the reference is brought before him, if evidence is to be produced, or vouchers filed, to assign a time and place for proceeding in the matter, and to give notice thereof to the parties of their solicitors; and if either party shall fail to attend at the time and place appointed, the auditor shall be at liberty to pro- ceed in the absence of such party, or, in his discretion, to adjourn the examination and proceeding to a future day, giving notice thereof to the parties or their solicitors, but noting all the cost that may attend such adjourn- ment, which shall be subject to the order and direction of the court. It shall be the duty of the auditor to pro- ceed with all reasonable diligence in every such reference, and with the least practicable delay; and either party shall be at liberty to apply to the court or a judge thereof for an order to the auditor to speed the proceedings before him, and to make his report, and to certify to the court the reasons for any delay that may have occurred. (Md. Ann. Code 1911, Art. 16.) §1546. Examination of parties and witnesses — Com- MARYLAND STATUTES AND RULES 1181 pelling production of documents. 23. The auditor shall regulate all the proceedings in every hearing or examina- tion before him; and in addition to his right and power to examine the parties to the cause, and all witnesses produced by them, or which they may cause to be sum- moned, on oath or affirmation touching the matters of the reference, he shall also have power and authority to require the production of all books, papers, writings, vouchers and other documents applicable thereto, where, by the principles and practice of courts of equity, the production of such writings may be compelled; and if any party so liable to produce such books, papers, writ- ings, vouchers or other documents, shall fail or refuse so to do, when required by the auditor, such party shall, with- out delay, be reported to the court by the auditor, with ' the facts of the case, that the proper proceeding may be taken thereon, by way of attachment or otherwise, as justice and the settled practice may require. (Md. Ann. Code 1911, Art. 16.) § 1547. Accounting — Examination of parties — Duties of auditor. 24. All parties accounting before the auditor shall produce their respective accounts in the form of debtor and creditor; and any of the other parties in- terested, who shall not be satisfied with the account so produced, shall be at liberty to examine the accounting party, viva voce, or, upon written interrogatories, before the auditor, who shall write down and report the testi- mony, if required. And in all cases wh,ere the auditor may be required to take testimony to be reported to the court, he shall observe and pursue the same mode and form of examination, and writing down the testimony as that prescribed to be observed by examiners. (Md. Ann. Code 1911, Art. 16.) Books and Papers, Production of §1548. Power to compel. 25. The courts of equity shall have power and authority, on the application of either party on the trial of any actions at law or suits in chancery, either for discovery or relief, to require and decree that the parties shall produce either the origi- 1182 EQUITY PRACTICE nal books, writings or papers, or copies certified by a justice of the peace, of all such parts of such books, writ- ings or papers in their possession or power as contain evidence pertinent to the issue, or relative to the matters in dispute between the parties, to be used as evidence at the trial of such cause ; but before any such order shall be made, the party making such application shall satisfy the court, on oath or affirmation, that the said books, writings or papers contain material and necessary evi- dence, and that such party cannot safely proceed to the trial of his case without the benefit of such testimony. (Md. Ann. Code 1911, Art. 16.) § 1549, Failure to comply with order to produce. 26. In any case where a court of equity may order the pro- duction of books in the possession of any party in the said court, on the failure of such party to produce such books so directed to be produced by the day therein limited, or to show sufficient cause for such failure, during the first four days of the succeeding term, or any other time that may be appointed therefor, the said court may in its discretion take the allegations in the bill of complaint of the party requiring the production of the said books pro confesso and decree ex parte, in such manner as shall appear just and reasonable. (Md. Ann. Code 1911, Art. 16.) Declaeatory Deceees § 1550. Establishing right to legal character or to property. 27. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such legal character or right; and the court may, in its discretion, make therein a declaration that he is so entitled without any further or other relief being asked or given. (Md. Ann. Code 1911, Art. 16.) § 1551. When declaratory decree improper. 28. No court shall make any such declaratory decree where the plaintiff being, in the opinion of such court, able to seek further relief than a mere declaration of title, omits to do so. (Md. Ann. Code 1911, Art. 16.) MARYLAND STATUTES AND RULES 1183 § 1552. Rights of trustee of property. 29. A trustee of property is " a person interested to deny ' ' a title, adverse to the title or rights of some one who is not in existence, and for whom, if in existence, he would be a trustee. (Md. Ann. Code 1911, Art. 16.) § 1553. Contingent characters or rights. 30. Con- tingent characters or rights may be the subject of such a declaratory suit and decree if they are actually dis- puted, but not otherwise. (Md. Ann. Code 1911, Art. 16.) §1554. Making up issues — Trial. 31. No declaratory suit can be brought, nor decree passed to establish a fact or facts that are without legal consequences, and wher- ever the court shall be of opinion that there is a ques- tion or questions involved in such suit, which a party or parties may be entitled under the constitution to have submitted to a jury, the court shall, if such party or parties require it, direct an issue or issues to be made up and sent to any court of law convenient for trying the same, and the issues shall be tried in the said court of law as soon as convenient without any continuance longer than may be necessary to procure the attendance of wit- nesses, and the power of courts of law and the proceed- ings thereto relative shall be as directed by law respect- ing the trial of issues from chancery, or the orphans' court as to proceedings therein, thereon and thereafter, but nothing herein contained shall be so construed as to prevent the equity courts of Baltimore city from sum- moning a jury to try such issue or issues pursuant to the provisions of section three hundred and twenty-three (323) of Article four (4) of the Code of Public Local Laws, title "Baltimore City," sub-title "Courts." The order granting or denying such issues shall be subject to appeal; (Md. Ann. Code 1911, Art. 16.) § 1555. Persons bound — Trustees. 32. A declaratory decree ma'de under the five foregoing sections shall be binding only on the parties to the suit and persons claim- ing through them respectively; and where any of the parties are trustees, on the persons for whom, if in exist- ence at the date of the decree, such parties would be trustees, and the court may, in its discretion, make a 1184 EQUITY PRACTICE declaratory decree as to the respective rights and legal characters of all or any of the parties to the suit. (Md. Ann. Code 1911, Art. 16.) § 1556. Appeals. 33. Such decree shall be subject to the same right of appeal as other decrees of courts of chancery. (Md. Ann. Code 1911, Art. 16.) Fraudulent Conveyances § 1557. Judgment at law not essential — Determining issues of fact. 47. In no case of a proceeding in equity to vacate any conveyance or contract, or other act, as fraudulent against creditors, shall it be necessary for any creditor or plaintiff in the cause to have obtained a judgment at law on his demand, in order to the relief sought in the case, either in his own behalf or in the behalf of any other creditors who shall claim to partici- pate in the benefit of the decree in the case; but when the debt of such plaintiff shall not be admitted by the plead- ings in the case on the part of the defendant interested in contesting the same, the court shall, on application of any of the parties, send to any court of law an issue for determining the fact of such indebtedness, subject to the rules usually applied to issues out of chancery; provided this section shall jiot apply to any case pending in court in this state on April 7, 1898. (Md. Ann. Code 1911, Art. 16.) Injunction § 1558. Attachment for violation. 78. If any person against whom an injunction has been issued shall violate the same after service thereof, or shall permit or con- nive at the violation thereof by any other person, the court, on notice of such violation, may issue attachment of contempt against such person; and if on proof the party be adjudged guilty of the contempt, he may be fined or imprisoned, or both, in the discretion of the court. (Md. Ann. Code 1911, Art. 16.) § 1559. Waste after injunction — Punishment — Transfer of property after injunction — Punishment — Rights of purchaser. 79. If the violation complained of be waste MARYLAND STATUTES AND RULES 1185 after injunction to stay waste, the court shall ascertain the damage done by the waste, by affidavit, or such other proof, as the court may judge necessary, and may fine the defendant to the extent of double the damage done and so ascertained ; and if the violation be the transfer of monies, property, or choses in action, after injunction forbidding such transfer, in addition to the attachment against the defendant, a summons shall go for the as- signee, if he be known ; and if it appear that such assignee had knowledge of such injunction, at the time of accept- ing the transfer, or possession of property, or choses in action, he also shall be held in contempt, and no title shall be deemed to have passed to him; and he may be required to surrender to the court, on its order, the prop- erty, money, or choses in action, of which he has become possessed; but if the purchaser, taker or assignee, be innocent of contempt, his title, if otherwise good, shall be protected; and the court shall take proof of the value of such property, money, or choses in action, disposed of, or assigned; and the fine in all cases provided for in this section shall remain to the credit of the cause in which the injunction issued, and in the event of final judgment in favor of the party injured, so much thereof as the court may adjudge shall go to him, and the remainder go as other fines do; and the court may im- prison for non-compliance with their order to pay such fine, and may issue execution, in the name of the state, for its collection. (Md. Ann. Code 1911, Art. 16.) § 1560. Discharge from attachment for violation-^ Costs. 80. If any person under attachment for violating an injunction shall establish his innocence of the charge, he shall be discharged with his costs, which shall be paid by the party complaining. (Md. Ann. Code 1911, Art. 16.) § 1561. Application by executor or administrator for injunction — Bond. 81. Whenever an application shall be made by an executor or administrator for an injunction to stay proceedings at law, the court may, in its dis- cretion, prescribe the penalty of a bond, which shall be executed to the plaintiff at law, with security approved by the court, before the injunction shall be granted, and 1186 EQUITY PRACTICE the condition of such bond shall be to perform such order or decree as the court shall finally pass in the cause on the hearing of both parties; and whenever an injunc- tion is obtained by an executor or administrator, on filing a bill and executing a bond as aforesaid, the court shall have full power and discretion to decree against such executor or administrator, as equity and good con- science shall seem to require. (Md. Ann. Code 1911, Art. 16.) § 1562. Injunction against sale on execution — Return of property. 82. In all cases where a sheriff, or other officer, is prevented by an injunction from selling per- sonal property taken in execution, he shall deliver back the property taken in execution to the party from whom it was taken, and shall not be answerable to the plaintiff at law on account of the same. (Md. Ann. Code 1911, Art. 16.) § 1563. Taking testimony on injunction and receiver- ship motions. 83. In all cases pending on motion to grant an injunction, motion to dissolve an injunction, motion to appoint a receiver, or motion to rescind an order appointing a receiver, the court may, at the in- stance of either party, order testimony to be taken before such person, and upon such notice and in such manner as the court in its discretion may direct, to be used at the hearing of such motion. (Md. Ann. Code 1911, Art. 16.) § 1564. Adequate remedy at law — When injunction or mandamus refused — 'Bond. 84. No court shall refuse to issue a mandamus or injunction on the mere ground that the party asking for the same has an adequate remedy in damages, unless the party against whom the same is asked shall show to the court's satisfaction that he has property from which the damages can be made, or shall give a bond in a penalty to be fixed by the court, and with a surety or sureties approved by the court, to an- swer all damages and costs that he may be adjudged by any court of competent jurisdiction to pay to the party asking such mandamus or injunction by reason of his not doing the act or acts sought to be commanded, or by MARYLAND STATUTES AND RULES 1187 reason of his doing the act or acts sought to be enjoined, as the case may be. (Md. Ann. Code 1911, Art. 16.) § 1565. Submission of controversy — Decree. 92. When- ever any cause is ready for hearing, and the parties, their solicitors or guardians, shall sign an agreement and file it with the clerk that the case be submitted for decision to the judge of the court where the suit is pend- ing, such judge shall pass a decree, and such decree shall have the same effect as if passed at the regular term of the court. (Md. Ann. Code 1911, Art. 16.) § 1566. Confirmation of sale by executor. 93. Where a sale has been made by an executor under a supposed authority derived from a will, the court may, at its dis- cretion, confirm such sale, on hearing the parties inter- ested, or ex parte, in cases where a bill might be taken pro confesso. (Md. Ann. Code 1911, Art. 16.) § 1567. Decree for deed — Trustee — Decree as deed. 95. In all cases where the court shall decree that a deed of any kind shall be executed, a trustee to execute such deed may be appointed, and until such trustee shall execute a deed, the decree itself, if passed in the county where the land lies, shall have the same effect that the deed would if executed ; but if passed in another county, the decree shall have that effect if recorded in the county where the land lies within six months from the date thereof. (Md. Ann. Code 1911, Art. 16.) § 1568. Contract rights of infant or person non compos mentis — Review of decree against infant. 100. Where an infant, of person non compos mentis, is entitled to any real or personal property in this state bound by any contract, or where an infant or a non compos mentis claims any right in such property under any contract, the court, in either case, shall have the same power to decree the execution of such contract, or to pass any just and proper decree that the court would have if all the parties were of full age and sound mind; provided, that in all decrees for specific performance of a contract against an infant, such infant may, at any time within six months after he arrives at full age, have review of such decree; and if such infant dies under age, his heir 1188 EQUITY PRACTICE or- proper representative may have a review of such de- cree either within six months after the death of such infant, or within six months after such heir or repre- sentative attains full age. (Md. Ann. Code 1911, Art. 16.) NON-EESIDENTS § 1569. Notice to non-residents. 124. If in any suit in chancery, by bill or petition, respecting, in any manner the sale, partition, conveyance or transfer of any real or personal property lying or being in this state, or to fore- close any mortgage thereon, or to enforce any contract or lien relating to the same, or concerning any use, trust or other interest therein, any or all of the defendants are non-residents, the court in which such suit is pending may order notice to be given to such non-residents, of the substance and object of such bill or petition, and warning them to appear by a day therein stated. (Md. Ann. Code 1911, Art. 16.) § 1570. Notice by publication to non compos mentis non-resident — Failure to appear. 125. In all cases in chancery, if any person non compos mentis and not re- siding in this state is a defendant, the court may order notice to be given to such non-resident, by publication in some newspaper, to appear and answer such bill or peti- tion, and upon the failure of such non-resident to appear and answer the bill or petition, such decree may be passed as the circumstances of the case may require; provided, no decree shall pass unless the allegations in the bill or petition are fully proved, under a commission to be issued for that purpose, or before one of the exam- iners of the court; the court shall assign a solicitor for such non-resident defendant to cross-examine the wit- nesses, which solicitor shall be paid by the plaintiff, or out of the estate of the defendant, at the discretion of the court. (Md. Ann. Code 1911, Art. 16.) § 1571. Decree against non-resident for execution of contract for sale of property — Bill of review. 126. Where a decree has passed for the specific execution of any contract or agreement for the sale or conveyance of real or personal estate, or any interest therein against a MARYLAND STATUTES AND RULES 1189 non-resident defendant, without his having answered, such non-resident may file a bill of review at any time within twelve months after the date of the decree; and if such non-resident be an infant, he may file a bill of review at any time within twelve months after he arrives at age; or if such infant dies under age, his heir or other representative may file a bill of review at any time within twelve months after the death of such infant; and if such non-resident defendant be non compos mentis, he may file a bill of review at any time within twelve months after he becomes of sane mind, or his heir or other repre- sentative may do so at any time within twelve months after the death of such non compos mentis. But the provisions of this section are not to apply to any decree to foreclose a, mortgage, or for sale of the mortgaged premises, or to a decree for the sale of real or personal property to pay debts or liens, or to a decree for the par- tition of any real or personal property, or to a decree for the sale of any real or personal property for the purposes of division. (Md. Ann. Code 1911, Art. 16.) § 1572. Proceedings on return of subpoena non est. 127. In all cases where two successive subpoenas against a defendant have been returned non est, or upon the return of one subpoena non est, and proof by affidavit, that the defendant hath kept out of the way, or secreted himself, to avoid the service of the subpoena, he may be proceeded against as if he were a non-resident. This section to be applicable to corporations as well as other persons. (Md. Ann. Code 1911, Art. 16.) § 1573. Suits against corporations — Notice by publica- tion where officers non-resident. 128. In a suit against a corporation, whether foreign or domestic, if neither the president nor any of the directors, officers or agents upon whom process may be served reside in this State, such corporation may be proceeded against as a non-resident defendant, by notice by publication. (Md. Ann. Code 1911, Art. 16.) § 1574. Interpleader — Non-residents failing to file an- swers — Proceedings. 129. "Where, in a bill of inter- pleader, some of the defendants are non-residents, and 1190 EQUITY PRACTICE such non-residents fail to answer, the court may order the answers filed by the other defendants to be taken as the answers of such non-resident defendants, or may as to such defendants direct testimony to be taken; pro- vided, notice of the substance and objects of the bill and answers be given, as in other cases of non-residents. This section to apply to one or more defendants. (Md. Ann. Code, 1911, Art. 16.) § 1575. Unknown whether non-resident living or dead — Heirs unknown — Executor or administrator unknown — Description and prayer for notice by publication. 130. In cases where it is unknown whether a non-resident be living or dead the bill may be filed against him as if living, and in cases where the non-resident is known to be dead, but it is unknown whether he left any heirs, or if he is known to have left heirs, but the heirs be unknown, and in cases where it is unknown whether a deceased person, resident or non-resident, who, if living, would be a proper party to a bill in chancery, has left any heirs; or if he is known to have left heirs, but the heirs be unknown, in all such cases the bill may describe such unknown heirs as the heirs of the person who, if living, would be a- proper party; and in cases where a non-resident is dead and no letters, testamentary, or of administration, have been granted in this state; and if it is unknown whether such letters upon his personal estate have been granted elsewhere, the bill may de- scribe as the executor or administrator of such deceased person the personal representative of the person who, if living, would be a proper party; and the bill in cases under this section shall pray that notice of the sub- stance and object thereof may be given by publication as provided by law in cases of non-residents. (Md. Ann. Code 1911, Art. 16.) § 1576. Deceased non-residents — ^Notice by publication to heirs and representatives — Proceedings — Intervention by representative. 131. In all cases mentioned in the foregoing section, the court shall order notice to be given by publication in accordance with the prayer of the bill to the heirs or personal representatives of such deceased MARYLAND STATUTES AND RULES 1191 person as the bill may pray and as they are described therein, and the same proceedings shall.be had against them as are had in cases against non-resident defendants named in a bill in chancery, and such publications shall be taken and considered sufficient notice to the heirs of said decedent or to all parties entitled to his personal estate whether executor, administrator, legatee or dis- tributee, as the case may be, and any decree which may be passed shall have the same effect against those de- scribed as heirs against all parties interested in the per- sonal estate of a particular person as if the party whose heirs or personal representatives they are supposed to be were living and a party to such decree, and the making in such case of the unknown foreign personal repre- sentative of a deceased non-resident a party defendant to the case shall give the court the same jurisdiction over the personal estate of such decedent as if an executor or administrator of such decedent to whom letters testa- mentary or of administration had been granted by an orphans' court or register of wills of this state had been made such party defendant; provided, however, that if letters testamentary or of administration on the estate of such decedent shall, after the making of such unknown foreign personal representative a party defendant, be granted upon the personal estate of such decedent by any orphans' court or register of wills of this state, the executor or administrator so appointed may intervene in such chancery case, if the same be still pending and shall thereupon be substituted as a party defendant in the place of said foreign personal representative and shall thereafter represent the personal estate of such said decedent. The provisions of this section to apply to all cases including bills of review, bills of interpleader and supplemental bills. (Md. Ann. Code 1911, Art. 16.) § 1577. Bill affecting- realty — ^Heirs unknown — Descrip- tion — Notice by publication — Effect of decree. 132. In all cases where a bill in chancery may be filed for the sale, lease, mortgage or other disposition of land or to affect any funds which would descend as real estate, and the owner of the whole or of any part thereof or of any 1192 EQUITY PRACTICE interest therein, whether resident or non-resident, is dead, and it is not known to the complainant or complain- ants in said bill whether or not said deceased person or persons left any heirs, or, if there are such heirs, who they are or whether they be residents of this state, or non-resi- dents, the said heirs may in such bill of complaint be described as the unknown heirs of such deceased person or persons, and the said bill of complaint shall pray that they be proceeded against as non-residents. In all such cases the order of publication shall issue as of course, in the manner now, or which may be hereafter prescribed by law, for the issuance of the order of publication against non-residents, and shall be published and the publication thereof proved as in cases of order of publication against non-residents. When such order of publication shall have been issued and published as aforesaid, all persons who may be the heirs at law of such deceased person or persons, whether they be residents or non-residents, shall be bound by the decree which may be passed by the court in said case, and all the right, title and interest, in said land, or in said fund, owned by said decedent shall pass and be divested in the decree that may be passed in said cause. (Md. Ann. Code 1911, Art. 16.) § 1578. Foreign representative as party — Service of process — Appearance — Intervention. 133. Where a non- resident of this state has died, upon whose personal es- tate no letters testamentary or of administration have been issued by any orphans' court or register of wills of this state, but upon which estate such letters have been issued by a court of probate or other proper authority in some other state, territory or foreign country, it shall be sufficient in any case in chancery in this state now pending or hereafter to be instituted, in which said de- cedent or his executor or administrator was or would be a proper party defendant, to make such foreign executor or administrator a party defendant thereto, and the mak- ing of such foreign executor or administrator a party defendant to such ease shall give the court the same ju- risdiction over the personal estate of such decedent as if an executor or administrator of such decedent to MARYLAND STATUTES AND RULES 1193 "whom letters testamentary or of administration had been granted by an orphans' court or register of wills of this state had been made such party defendant, and said for- eign executor or administrator may in any such case, if a non-resident of this state, be proceeded against as provided for in cases of other non-residents, or if within this state, by service -of summons upon him, or said for- eign executor or administrator may voluntarily appear to the action, or otherwise become or be made a party defendant as in cases of other parties defendant; pro- vided, however, that if letters testamentary or of admin- istration of the estate of such decedent shall after the making of such foreign executor or administrator a party defendant be granted upon the estate of such decedent by any orphans' court or register of wills of this state, the executor or administrator so appointed may intervene in such chancery case, if the same be still pending, and shall thereupon be substituted as a party defendant ih place of said foreign executor or administrator, and shall thereafter represent the personal estate of said decedent. (Md. Ann. Code 1911, Art. 16.) ■, § 1579. Appearance by non-resident. 134. Any non- resident, or person proceeded against as a non-resident, may appear, and answer before final decree, on such rea- sonable terms as the court may prescribe. (Md. Ann. Code 1911, Art. 16.) § 1580. Notice by publication — Time and manner of giving — Order — Proof of service. 135. In all suits in chancery against non-residents or against persons who may be proceeded against, as if they were non-residents, the court may order notice to be given by publication, in one or more newspapers, stating the substance and object of the bill or petition, and warning such party to appear on or before the day fixed in such order and show cause why the relief prayed should not be granted, and such notice shall be published as the court may direct, not less, however, than once a week for four successive weeks, previous to fifteen days before the day fixed by such order for the appearance of the party; provided, if a copy of the order be personally served on such party 1194 EQUITY PRACTICE one month before the day fixed for his appearance, if he be within the limits of the United States, or three months, if beyond, such service shall have the same effect as a publication. Proof of said service must be as fol- lows: First, if served by the sheriff, his certificate there- of; second, if by any other person, his affidavit or affirma- tion thereof made and signed before a notary public and certified by him; third, the written admission of the defendant proved to the satisfaction of the court; and such certificate, affidavit, affirmation or admission shall state the time and place of service. And any person making a false affidavit or affirmation as to any such service shall be guilty of perjury, and any sheriff mak- ing a false certificate as to the service of any such notice shall be liable for making a false return. (Md. Ann. Code 1911, Art. 16.) § 1581. Bill for renewal of lease — Unknown parties — Service by publication — Effect of decree. 136. Upon ap- plication for a renewal of a lease containing a covenant for renewal, where any person or persons interested in the reversion reserved in said lease, and who should be the party or parties to the proceedings, is or are un- known, it shall be sufficient to substantially describe sucll TinEnown person or persons in the bill as the un- known person or persons interested in said reversion, by, through or under the original lessor or lessors, nam- ing him or them ; and the court shall order notice by pub- lication to be given to such unknown person or persons, according to his or their description in the bill, and the same proceedings shall be had against such unknown person or persons as are had against non-resident de- fendants named in a bill in chancery; and any decree which may be passed shall have the same effect against such unknown person or persons, whether claiming by descent, purchase or in any other manner, and against his or their heirs, executors or administrators and as- signs, as if such unknown person or persons had been made a defendant or defendants by name in said bill. (Md. Ann. Code 1911, Art. 16.) MARYLAND STATUTES AND RULES 1195 Pabtition §1582. Partition — Sale — Persons under disability — Deeds — Parties — Rights of lienors. 137. The court may decree a partition of any lands, tenements or heredita- ments, or any right, interest or estate therein, either legal or equitable, on the bill or petition of any joint tenant, tenant in common, or any parcener or any concurrent owner, whether claiming by descent or purchase, or if it appear that said lands, tenements or hereditaments, or right, interest or estate thereon cannot be divided without loss or injury to the parties interested, the court may decree a sale thereof, and a division of the money arising from such sale among the parties, according to their respective rights; this section to apply to cases where all the parties are of full age and to cases where all the parties are infants, and to cases where some of the parties are of full age and some infants, and to cases where some or all of the parties are non compos mentis, and also to apply to cases where any or all of the parties are non-residents; and any party, whether of full age, infant, or non compos mentis may file a bill under this section, an infant by his guardian or procliein ami, and a non com,pos mentis by his committee, and if any con- tract hath been made for the sale of any lands, tenements or hereditaments held as aforesaid, or any interest therein for or on behalf of any infant, idiot or person non compos mentis which the court, upon hearing aforesaid and ex- amination into all the circumstances, shall think for the interest and advantages, both of such infant, idiot or person non compos mentis, and of the other person or persons interested therein to be confirmed, the court may confirm such contract, and all sales and deeds made in pursuance of and agreeably to an order of the court in the exercise of the above power shall be good and suf- ficient in law to transfer the estate and interest of such infant, idiot or person non compos mentis in such lands, tenements or hereditaments, according to the true intent and meaning of such deeds, respectively; and in all cases of deeds executed in the exercise of the above power, Whitehouse E. P. Vol. 11—20 1196 EQUITY PRACTICE the same shall be executed and acknowledged by such person or persons as the court may appoint for the pur- pose. And wherever any bill or petition is filed under the provisions of this section for the sale of lands, per- sons holding mortgages and other incumbrances on the said lands or an undivided interest therein may be made parties to said bill, and the said lands or interests therein shall be sold free and clear of such mortgages or other incumbrance, and the rights of the lienors shall be protected in the distribution of the proceeds of the sale of such lands. (Md. Ann. Code 1911, Art. 16.) § 1583. Partition of separate lots. 138. The right to a partition or a sale under section 137 shall include the right to a partition or a sale of any one or more of several separate lots or tracts of land held as mentioned in said section, and it shall not be necessary for the bill or peti- tion to pray for a partition or a sale of all of the several lots or tracts so held. (Md. Ann. Code 1911, Art. 16.) Pleading, Practice and Process § 1584. Courts always open — Terms, 139. The circuit courts for the several counties of this state, and the cir- cuit court of the city of Baltimore, and the circuit court number two of the city of Baltimore, as courts of equity, shall be deemed and taken to be always open for the trans- action of business therein, and the several regular terms of said courts for the return of process and other prac- tical purposes shall be of two months ' duration, and shall commence in the counties on the first Monday of January, of March, of May, of July, of September, and of Novem- ber of each year; and in Baltimore city shall commence on the second Monday of January, of March, of May, of July, of September, and of November of each year. (Md. Ann. Code 1911, Art. 16.) § 1585. Dockets. 140. The several clerks of said courts shall receive and file all papers pertaining to said courts, respectively, and shall keep substantial dockets, and make all proper entries therein, of papers filed, and of the proceedings of the said courts, as they occur; so that the docket entries shall always show, as near as possi- MARYLAND STATUTES AND RULES 1197 ble, the real condition and progress of the proceedings. (Md. Ann. Code 1911, Art. 16.) § 1586. Commencement of suit. 141. All original pro- ceedings in said courts shall be commenced by bill, or by special case stated, as hereinafter provided for; the term "bill" to embrace petition or information, where, by statute, or the established practice, petition or infor- mation be proper. (Md. Ann. Code 1911, Art. 16.) § 1587. Issuance of order or process — Time for. 142. No order or process shall be made or issued upon any bill, petition, or other paper, until such bill, petition, or other paper, together with all the exhibits referred to as parts thereof, be actually filed with the clerk of the court. (Md. Ann. Code 1911, Art. 16.) § 1588. Process — ^When returnable. 143. All process, other than process to give notice to, or to procure the ap- pearance of defendants, shall be made returnable to the first day of the term ensuing the date of such process; and all process that may be issued for the appearance of parties, or to compel appearance, shall be made re- turnable in the several counties on the first Monday of the month ensuing the date of its issue, and in Baltimore city shall be made returnable on the second Monday of the month ensuing the date of its issue, but the plaintiff may, by special direction, require any process to be made returnable at the return day next after the first return day for such process ensuing the issuance of the same. (Md. A.nn. Code 1911, Art. 16.) § 1589. Duty of clerk to issue process — Summons for each defendant. 144. Whenever a bill or petition is filed, the clerk shall issue the process, or order of publi- cation thereon, for the appearance of the defendants, as of course ; and whenever there are more than one defend- ant, summons may, upon the special direction of the plain- tiff, be sued out separately for each defendant, except in case of husband and wife, or a joint summons against all the defendants may be issued. (Md. Ann. Code 1911, Art.' 16.) § 1590. Service of process. 145. The service of process to require appearance shall be by reading the summons, 1198 EQUITY PRACTICE or other writ or order, to the party to be served there- with ; or by delivering a copy of the same to such party ; and in case the party be an infant or non compos mentis, in addition to the service on such party, a copy of the process or order shall be left with the parent or guardian of the infant, if there be one within the jurisdiction of the court, and with the committee or other person having the care of the person or estate of the party alleged to be non compos mentis; and such service shall be specially certified in the return by the officer making the service. (Md. Ann. Code 1911, Art. 16.) § 1591. Appearance by guardians and committees — Appointment of guardian ad litem. 146. Upon return of process as served, or upon proof of due publication of the order of publication as against non-resident defend- ants, the court shall, in case of infant or non-sane de- fendants, on application of the plaintiff, or any other party concerned, by order, either require the legal guardian or committee of the infant or non-sane defendant (if there be such guardian or committee within the jurisdiction of the court) to appear, answer and defend for such party, or appoint a guardian ad litem to answer and defend the suit for such party ; and in appointing guardians ad litem, no person shall be appointed who may have any interest whatever involved in the suit adverse to that of the person so under disability. In any case where it may be deemed necessary, the court or judge thereof may ap- point a solicitor to appear and defend for any infant or non-sane defendant. All commissions for taking an- swers or to plead shall be and they are hereby abol- ished. (Md. Ann. Code 1911, Art. 16.) § 1592. Suits by persons under disability— Prochein ami. 147. All infants and other persons under any dis- ability to sue, may sue by their guardian or committee, if any, or by their prochein ami; subject, however, to such orders as the court or judge thereof may direct for the protection of infants and other persons; but before the name of any person shall be used in any suit to be instituted, as next friend of any infant or other party, or as relator in any information, such person shall sign MARYLAND STATUTES AND RULES 1199 a written authority to the solicitor for that purpose, and such authority shall be filed with the bill or other pro- ceeding. (Md. Ann. Code 1911, Art. 16.) § 1593. Appearance — Time for entering — Time for an- swer — Noting appearance. 148. Defendants shall have fifteen days from the time of the return of process served, within which to enter an appearance, before they shall be treated as in default for non-appearance; and from the time of appearance entered, said defendants shall have twenty days within which to answer; and it shall be the duty of the clerk, in all cases in entering the ap- pearance of defendants, to note in the margin of the docket the time of such appearance entered; and if the appearance be by solicitor, and there be more than one defendant, the clerk shall note for which defendant the appearance is entered; and the court or judge thereof may, for special reason shown, extend or enlarge the time to answer, according to the nature and circumstances of the case. (Md. Ann. Code 1911, Art. 16.) § 1594. Failure to answer, plead or demur — Decree pro confesso. 149. Upon service of process, or notice given by publication, as the case may be, the adult defendants, not being insane, shall appear and file their answer, plea or demurrer, to the bill or petition, within the time al- lowed by this article, or by the terms of the order of publication, or special order for the extension of time; and in default of appearance, or of answer, plea or de- murrer, after appearance within the time allowed, the plaintiff may, at his election, obtain an order as of course, that the bill be taken pro confesso as against such de- fendants; and thereupon the cause shall be proceeded with ex parte as against the defendants so in fault ; and the matter of the bill or petition may be decreed by the court or judge thereof at any time after the lapse of thirty days from the date of the order pro confesso if there be no answer, plea or demurrer interposed, and the allega- tions of the bill or petition present a proper case for re- lief. But the court or judge thereof may, in all such cases, if it be deemed proper, order that the allegations of the bill or petition, or any of them, be supported by 1200 EQUITY PRACTICE affidavit or deposition to be taken as may be directed. (Md. Ann. Code 1911, Art. 16.) § 1595. Discovery — Affidavits — Final decree. 150. Whenever any bill sliall charge any matter or thing as being within the private knowledge of the defendant and shall pray a discovery, on oath, as to such matter or thing, and an interlocutory decree, as provided for in the last preceding section, shall have been entered, and the plaintiff shall satisfy the court, by affidavit, to be taken in open court and filed in the cause, that such matter or thing does rest in the private knowledge of the defend- ant, and that there is reasonable ground for believing, prima facie, that such matter or thing does exist, the said court is authorized and required to order the bill as to such matter or thing, the same being sufficiently alleged and charged, to be taken pro confesso, and to proceed to make a final decree in the case, in the same manner as if such matter or thing had been proved or admitted by answer. (Md. Ann. Code 1911, Art. 16.) § 1596. Failure to answer after appearance — Insuffi- cient answer — Decree pro confesso. 151. If any defend- ant, after appearance and before he puts in a sufficient an- swer, shall leave the state, or if any non-resident de- fendant appears and does not put in a sufficient answer, the court may order such defendant to answer by a par- ticular day, and upon his failure to comply with such order, the bill may be taken pro confesso against such defendant. (Md. Ann. Code 1911, Art. 16.) § 1597. Answer after interlocutory order or decree — Granting permission. 152. Any defendant against whom an interlocutory decree shall be entered, and also any defendant against whom an order to take a bill as to any matter or thing pro confesso may be passed, may ap- pear at any time before final decree and file his answer, on oath, to the bill, which shall be filed forthwith, or within such reasonable time as the court in its discretion, and on special cause shown by affidavit, shall appoint; and on such answer being filed, such proceedings shall be had as would or might have been had in case such answer had been filed before the passage of such inter- MARYLAND STATUTES AND RULES 1201 locutory order or decree; but the court shall impose such terms on the defendant as the condition of permitting such answer to be filed, as such court may, in its dis- cretion, under all the circumstances of the case, judge reasonable and proper for avoiding delay or expense, and for the attainment of justice; and the filing of such answer shall in no case affect the validity of any testi- mony previously taken. (Md. Ann. Code 1911, Art. 16.) § 1598. Recitals in bill — Scandal and impertinence — Striking out. 153. Every bill or petition shall be ex- pressed in terms as brief and concise as it reasonably can be, and shall contain no unnecessary recitals of docu- ments of any kind, in haec verba, nor any impertinent matter, or matter scandalous and not relevant to the suit ; and the same rule shall apply to all answers and pleas filed by defendants; and if this rule be violated, the un- necessary or improper matter or averments may be stricken out at the cost of the party introducing the same. (Md. Ann. Code 1911, Art. 16.) § 1599. Introduction to bill— Form. 154. All bills and petitions in the introductory part thereof shall contain the names of all the parties, plaintiffs and defendants, by and against whom the suit is brought. The form shall be substantially as follows: In the Circuit Court for County. A B, Plaintiff, against C D, Defendant, To the Honorable the Judges of said Court: Your orator, complaining says: 1. That, etc., making each paragraph contain a suc- cinct but a complete statement of fact. (Md. Ann. Code 1911, Art. 16.) § 1600. Paragraphs — Numbering — Statement of facts — Necessary averments — Prayer for relief — Omission of formal averments — Prayer for answer. 155. All bills and petitions shall be divided into paragraphs, as indi- cated in the preceding section, and be consecutively numbered, and shall contain simply a statement of the facts upon which the plaintiff asks relief, and, at his 1202 EQUITY PRACTICE option, the facts which are intended to avoid an antici- pated defence, and such averments as may be necessary, under the rules of equity pleading, to entitle the plain- tiff to relief; and the prayer for relief shall specify par- ticularly the relief desired, and shall also contain the prayer for general relief. And if an injunction, or other writ, or any special order, be required, pending the suit, it shall be specially prayed for; the several subjects of the prayer being formed into distinct paragraphs, and consecutively numbered. The ordinary or formal com- bination clause, the allegations of the want of remedy at law, and similar formal averments, shall be omitted; nor shall it be necessary to pray that the defendants be required to answer, unless it be desired that they shall answer under oath, or there be special interrogatories appended to the bill to be answered by the defendants, or some of them, in which cases there shall be a prayer that the defendant or defendants be required to answer the bill, or the special interrogatories appended thereto, under oath. (Md. Ann. Code 1911, Art. 16.) § 1601. Prayer for process or publication. 156. -The prayer for process or for order of publication shall con- tain the names of all the defendants named in the in- troductory part of the bill or petition, and the place of their residence, as far as known; and if any of said de- fendants are known to be infants under age, or under any other disability, such fact shall be stated, so that the court may take order thereon, as justice may require. And if an injunction, or other writ, or any special order be asked in the prayer for relief, that shall be sufficient, without repeating the same in the prayer for process. (Md. Ann. Code 1911, Art. 16.) §1602. Time for answer, plea or demurrer — Special leave — Answer, plea or demurrer to part of bill. 157. At any time before the bill is taken pro confesso, or afterwards (before final decree), by the special leave of the court or judge thereof, the defendant may answer, plead or demur to the bill; and he may plead or demur to the whole bill, or to part thereof, and he may demur to part, plead to part, and answer as to the residue; but in MARYLAND STATUTES AND RULES 1203 every case in which the bill specially charges fraud, usury or combination, a plea to such part must be accompanied with an answer supporting the plea, and explicitly deny- ing the fraud, usury or combination, and the facts on which the charge is founded. (Md. Ann. Code 1911, Art. 16.) §1603. Affidavit to plea or demurrer — Form of de- murrer. 158. No plea or demurrer shall be allowed to be filed to any bill or petition, unless it be supported by affi- davit that it is not intended for delay; and if a plea, that it is true in point of fact. The form of demurrers shall be substantially as follows: "The defendant demurs to the whole bill, " or " to so much of the bill, or discovery, or relief, ' ' stating the particular part or parts demurred to, and the special grounds of the demurrer. (Md. Ann. Code 1911, Art. 16.) § 1604. Argument on plea or demurrer — Taking issue on plea — ^Effect of judgment for defendant. 159. The plaintiff may set down the demurrer or plea to be argued, or he may take issue on the plea. If, upon an issue, the facts stated in the plea be determined for the defendant, they shall avail him as far as in law and equity they ought to be available, but no further. (Md. Ann. Code 1911, Art. 16.) § 1605. Defendant setting down plea or demurrer for argument — Notices. 160. If the plaintiff shall not reply to any plea filed, or shall not set down any plea or demur- rer for argument, within ten days after the same filed, the defendant may set it down for argument on five days' notice. (Md. Ann. Code 1911, Art. 16.) § 1606. Amendment where demurrer or plea allowed. 161. If, upon the hearing, any demurrer or plea shall be allowed, the court may, in its discretion, upon motion of the plaintiff, allow him to amend his bill upon such terms as it shall deem to be reasonable. (Md. Ann. Code 1911, Art. 16.) § 1607. Answer over where demurrer or plea overruled — Vexatious demurrer. 162. If, upon the hearing, any demurrer or plea is overruled, unless the court or judge thereof hearing the same be satisfied that it was intended 1204 EQUITY PRACTICE for vexation and delay, the defendant shall be required to answer the bill, or so much thereof as may be covered by the plea or demurrer, at such time as, consistently with justice and the rights of the defendant, the same can be reasonably done; in default whereof, the bill shall be taken, as against him, pro confesso, and the matter there- of proceeded in and decreed accordingly ; and such decree shall also be made when the .court or judge thereof shall be satisfied that the plea or demurrer was interposed for vexation or delay merely, and is frivolous or un- founded. (Md. Ann. Code 1911, Art. 16.) § 1608. Costs and allowance where plea or demurrer overruled. 163. Upon any plea or demurrer being over- ruled, upon argument or otherwise, or being withdrawn without leave of the court, the party whose demurrer or plea is so overruled or withdrawn shall pay to the oppo- site party the sum of ten dollars, and the costs thereof, and be in contempt until the said sum of money and costs are fully paid, unless the court shall otherwise specially order. (Md. Ann. Code 1911, Art. 16.) § 1609. Answer — Form — Matters, to be included. 164. The defendant shall make answer to all the material alle- gations of the bill, except as hereinafter provided; and the answer shall be divided into paragraphs, numbered consecutively, each paragraph containing, as near as may be, a separate and distinct averment. The rule, that if the defendant submits to answer, he shall answer fully to all the matters of the bill, shall not apply in cases where he might, by plea or demurrer, protect himself from such answer and discovery. And the defendant shall be en- titled in all cases, by answer, to insist upon all matters of defence in law or equity, to the merits of the bill, of which he may be entitled to avail himself by a demurrer, or plea in bar; and in such answer he shall not be com- pellable to answer any other matters than he would be compellable to answer and discover, upon filing a demur- rer or plea in bar, and an answer in support of such plea, touching the matters set forth in the bill to avoid or repel the bar or defence. Thus, for example, a hona fide pur- chaser, for a valuable consideration, without notice, may MARYLAND STATUTES AND RULES 1205 set up the defence by way of answer, instead of plea, and shall be entitled to the same protection, and shall not be compellable to make any further answer or discovery of his title than he would be required to make in an answer in support of such plea. (Md. Ann. Code 1911, Art. 16.) § 1610. Special interrogatories to defendant — Interrog- atories to plaintiff — Notice — Time to answer. 165. Spe- cial interrogatories to the defendant shall not be incorpo- rated in the bill or petition, but shall be appended there- to; and they shall be divided as conveniently as may be, and numbered consecutively. And if there be more than one defendant, and the interrogatories are not intended to be answered by all, it shall be designated which defend- ant is required to answer the several interrogatories. And in like manner and form, any defendant shall be entitled to file interrogatories to any of the plaintiffs, after he shall have put in his answer to the bill; and such inter- rogatories, either to plaintiff or defendant, and the an- swers thereto, shall be deemed part of the pleadings in the cause. Notice by service of copy, or otherwise, shall be given to the party required to answer, who shall an- swer within thirty days from the time of service, unless the time, for cause shown, be extended by special order; and answers to such interrogatories may be compelled by attachment. (Md. Ann. Code 1911, Art. 16.) § 1611. Refusal to answer interrogatories — InsuiBcient answers — Filing replication. 166. But either plaintiff or defendant shall be at liberty to decline answering any interrogatory, or part of any interrogatory, when he might have protected himself by demurrer from answer- ing the subject of the interrogatory; and he shall be at liberty so to decline, notwithstanding he shall answer other interrogatories, from which he might have pro- tected himself by demurrer; and upon such declination, the plaintiff or defendant may, on three days' notice, set down the matter for hearing before the court or judge thereof, as on an exception to the answer for insufficiency. But where the interrogatories are not fully answered, and no reason is assigned for the omission, the particular objection must be pointed out by exception, to be filed 1206 EQUITY PRACTICE and served at least live days before the hearing of such exception. The plaintiff or defendant shall be at liberty, before answers to the interrogatories are filed, or pending exceptions, to file or require a replication, and proceed to take testimony, without waiver of his right to such an- swer, or of his exceptions to the answers. (Md. Ann. Code 1911, Art. 16.) §1612. Cross-bills— Form— Service. 167. Cross-bills for discovery only shall not be allowed, but the defendant shall be at liberty, instead thereof, to file interrogatories to the plaintiff, as provided in the preceding section. In other cross-bills, no other reference shall be made to the matters contained in the original bill than shall be neces- sary, but the same may be treated as if incorporated therein. The rules regulating the form of bills shall apply to cross-bills. If no new parties are introduced, service of a copy of the cross-bill on the solicitor of the plaintiff or plaintiffs in the original bill shall be sufficient. But where other persons are made parties, the service or noti- fication shall be the same as provided in respect to notice or service of process upon defendants in original bills, to- gether with the cross-bill. (Md. Ann. Code 1911, Art. 16.) § 1613. Verification of answer — Answer as evidence — Exceptions. 168. It shall not be necessary for any de- fendant to make oath to his answer unless required by the plaintiff, nor shall any answer, whether sworn to or not, be evidence against the plaintiff at the hearing of the cause, unless the plaintiff shall read such answer as evidence against the defendant making the same ; but this section shall not apply to motions to dissolve an injunc- tion or to discharge a receiver. (Md. Ann. Code 1911. Art. 16.) § 1614. Unverified answer as evidence — Verified aji- swer as affidavit. 169. If the plaintiff in his bill shall not require an answer under oath, or shall only require an answer under oath with regard to certain specified in- terrogatories, the answer of the defendant, though under oath, except such part thereof as shall be directly responsive to such interrogatories, shall not be evidence in his favor, unless the cause be set down for hearing MARYLAND STATUTES AND RULES 1207 on bill and answer only; but an answer under oath may, nevertheless, be used as an affidavit, with the same effect as heretofore, on a motion to grant or dissolve an in- junction, to appoint or discharge a receiver, or on any other incidental motion in the cause. (Md. Ann. Code 1911, Art. 16.) §1615. Replication— Time of filing— Failure to file. 170. Whenever the answer of the defendant shall not be excepted to, or shall be adjudged or deemed sufficient, the plaintiff shall file the general replication thereto within fifteen days thereafter, unless he shall set the cause down for hearing on bill and answer as to said defendant or de- fendants answering; and in all cases where the general replication is filed, the cause shall be deemed to all in- tents and purposes at issue, without any rejoinder or other pleading on either side. If the plaintiff shall omit or refuse to file such replication within fifteen days after answer filed, the defendant shall be entitled to a rule fur- ther proceedings within ten days after notice of such rule; and upon failure to comply with such rule, the de- fendant shall be entitled to have the bill dismissed. The form of the general replication shall be as follows : ' ' The plaintiff joins issue on the matters alleged in the an- swer of C D, so far as the same may be taken to deny or avoid the allegations of the bill." (Md. Ann. Code 1911, Art. 16.) § 1616. Special replication — Amendment of bill. 171. No special replication to any answer shall be filed. But, if any matter alleged in the answer shall make it neces- sary for the plaintiff to amend his bill, he may obtain leave to amend the same, upon application to the court or judge thereof, within such time and upon such terms as may be prescribed by order. (Md. Ann. Code 1911, Art. 16.) § 1617. Failure to amend bill in time— Rights of de- fendant on amendment of bill — Practice. 172. If the plain- tiff, so obtaining any order to amend his bill after answer, or after plea or demurrer thereto, shall not make, the amendment within the time allowed, he shall be consid- ered to have abandoned the leave to amend, and the cause 1208 EQUITY PRACTICE shall proceed as if no application for such leave had been made. But where such amendment is made, and new facts are introduced, and the case is thus varied in any material respect, the defendant shall be at liberty to answer anew, or to plead, or demur to the bill as amended, within such time as the court or judge thereof may prescribe, after notice of the amendment made ; and notice may, in all cases, be given by service of a copy of the bill as amended, upon the defendant, or upon his solicitor, if there be one ; or it may be by subpoena. The mode of proceeding in default of answer to thp matter of the amendment shall be the same as that in default of an- swer to the original bill; and the proceeding on answer, plea or demurrer, filed to the amended bill, shall be the same as that on answer, plea, or demurrer to an original bill. (Md. Ann. Code 1911, Art. 16.) § 1618. Enforcement of obedience to process, rules and orders — Fine — Commitment. 173. In order to enforce obedience to the process, rules and orders of the courts of equity, in all cases where any party or person shall be in contempt, for disobedience, non-performance or non- observance of any process, rule or order of the court, or for any other matter or thing whatsoever, whereby or wherein a contempt, according to the rules, law, practice or course of the said courts may be incurred, such party or person shall, for every such contempt, and before he shall be released or discharged from the same, pay to the clerk of the court (to be paid by him at the end of every six months to the treasurer, for the use of the State), a sum not exceeding twenty dollars, as a fine for the pur- gation of every such contempt; and the said party or per- son being in court upon any process of contempt or other- wise, upon the order of the court, shall stand committed and remain in close custody until the said process, rule or order shall be fully performed, obeyed and fulfilled, and until the said fine or fines for such contempt imposed by the said court, and the costs, shall be ftilly paid. (Md. Ann. Code 1911, Art. 16.) § 1619. Rule for security for costs against non-resident plaintiff. 174. In all cases in chancery, a rule for secur- MARYLAND STATUTES AND RULES 1209 ity for costs may be laid at any time before a final decree is passed, by any defendant, against a plaintiff, non-resi- dent at the time of filing the bill, or becoming so after the filing thereof. (Md. Ann. Code 1911, Art. 16.) § 1620. Bond where parties numerous. 175. When a court of equity shall require bond, with or without secur- ity, to be given in any case, and the parties concerned therein shall be numerous, or if it shall appear for other reasons proper, the court may take such bond in the name of the State as obligee, and the same may be sued on by any person interested, as public bonds may; and a copy, certified by the clerk of the court, under the seal thereof, shall be received in evidence, and have the same effect as certified copies of public bonds. (Md. Ann. Code 1911, Art. 16.) § 1621. Allowances to examiners, commissioners, wit- nesses, masters, auditors, etc. 176. Payment of the al- lowances to examiners, commissioners, witnesses, masters, auditor and clerks to examiners and commissioners, may be compelled by order of the court, and process of con- tempt for disobedience to such order may be issued as in other cases. (Md. Ann. Code 1911, Art. 16.) § 1622. Filing opinions. 177. In all cases in the courts of equity, it shall be the duty of the said court to file their opinions for or in respect of any final decree or decretal order, whenever such decree or order shall have passed upon argument, oral or in writing, on the part of any of the parties in such cause; this section not to apply to Baltimore city. (Md. Ann. Code 1911, Art. 16.) § 1623. Heirs as parties to foreclosure proceedings. 178. It shall not be necessary in any case for the foreclosure or sale of mortgaged property, to make the heirs of the mortgagee parties to the same, but any decree upon any bill for foreclosure or sale aforesaid, filed by the executor or administrator of the mortgagee, shall have the same effect as if the said heirs were parties. (Md. Ann. Code 1911, Art. 16.) § 1624. BiU of review for failure to take testimony- Supplying proof. 179. Under any bill of review, or other proceedings to set aside or reverse any order or decree 1210 EQUITY PRACTICE passed in any case in which any infant or person non com- pos mentis was interested, on the ground that no testimony was taken to prove the allegations in the bill or petition filed in such case, or that no replication was put in, it shall be lawful for the person interested to supply said- proof and pleas, in the same manner as the same could have been furnished under such original bill or petition. (Md. Ann. Code 1911, Art. 16.) §1625. Awarding costs and fee on exceptions to an- swer. 180. In deciding on exceptions to answers, the court may award the costs of the exception and the order thereon to the party prevailing, including a fee to the solicitor or attorney. (Md. Ann. Code 1911, Art. 16.) § 1626. Parties defendant to suit on joint and several claim — Cross-bill by defendant. 181. In all cases where the plaintiff may have a joint and several claim or de- mand against several persons, either as principals or sureties, it shall not be necessary to bring before the court, as parties to a suit concerning such claim or de- mand, all the persons liable thereto ; but the plaintiff may proceed against one or more of the persons severally liable ; but the defendant may at once proceed by petition in the nature of a cross-bill, against such party as is liable jointly with him, and such party shall be permitted to make himself a party to the original cause, and defend the same, and the proceedings in the original cause shall, after the service of such petition, be conclusive as to such other party ; and if he shall appear thereto, the same shall be conducted as if he had been made a party thereto in the first instance. (Md. Ann. Code 1911, Art. 16.) § 1627. Trustees representing parties beneficially inter- ested. 182. In all suits concerning real or personal estate, where the entire estate sought to be affected by the decree or order prayed for is vested in trustees, under any deed, will or other instrument, with an immediate and unqual- ified power of sale, coupled with the right to give receipts, such trustees shall represent the persons beneficially in- terested under the trust, in the same manner and to the same extent as the executors or administrators in suits concerning personal estate represent the persons benefi- MARYLAND STATUTES AND RULES 1211 cially interested in such personal estate ; and in sucli cases it shall not be necessary to make the persons beneficially interested under the trust, parties to the suit; but any party interested may, upon his own application, be al- lowed to come in and be made a party to such proceeding, and the court or judge thereof may, upon consideration of the matter on the hearing, if it should be deemed proper, order such persons, or any of them, to be made parties. (Md. Ann. Code 1911, Art. 16.) § 1628. Misjoinder of parties — How cured — Decree as between plaintiffs. 183. It shall not be necessary to dis- miss the entire bill or petition in any suit, because simply of the misjoinder of parties or the subject-matter of the suit ; but the court may dismiss the bill or petition as to such of the parties, plaintiff or defendant, as may be improperly joined, and may dismiss the bill or petition as to such of the subject-matter as may be improperly joined or included therein, so as to relieve the bill or peti- tion of the objection of being multifarious. And the court may, according to the special circumstances of the case, to meet the requirements of justice and to prevent a multi- plicity of suits, decree as between the plaintiffs, as if they occupied positions of plaintiff and defendant upon the rec- ord, and may so decree as between co-defendants to the cause; provided, such decree shall be founded upon the allegations of the pleading between the plaintiffs and de- fendants, and have immediate connection with the sub- ject-matter of the suit. (Md. Ann. Code 1911, Art. 16.) § 1629. Want of parties — Saving- rights of absent parties. 184. If the defendant shall, at the hearing of the cause, object that the suit is defective for want of parties not having by plea or answer taken the objection and therein specified by name or description the parties to whom the objection applies, the court or judge thereof, if it be deemed proper, shall be at liberty to make a decree, saving the rights of the absent parties, or may require the plaintiff to bring in such absent party, upon such terms as the court may prescribe as to costs. (Md. Ann. Code 1911, Art. 16.) §1630. Want of parties — Argument on objection — Whitehouse E. P. Vol. 11—21 1212 EQUITY PRACTICE Entry by clerk — Failure of plaintiff to set down cause. 185. Where the defendant shall, by his answer, suggest that the bill is defective for want of parties, the plain- tiff shall be at liberty, within fifteen days after answer filed, to set down the cause for argument upon that objec- tion only; and the clerk, at the instance of the plaintiff, shall make entry thereof in his docket in the following form: "Set down upon the defendant's objection for want of parties. ' ' And if the plaintiff shall not set down the cause, but shall proceed therewith to a hearing, not- withstanding the objection for want of parties taken by the answer, he shall not, at the hearing of the cause, if the defendant's objection for want of parties be then allowed, be entitled, as of course, to an order for liberty to amend his bill by adding parties; but the court or judge thereof may, if it be thought fit, dismiss the bill. If, however, the cause be set down upon the objection laken, and, upon hearing, the objection be allowed, the plaintiff shall have liberty to amend, upon paying the cost of amendment. (Md. Ann. Code 1911, Art. 16.) § 1631. Enrollment of decrees and orders. 186. All final decrees, and orders in the nature of final decrees, shall be considered as enrolled from and after the expira- tion of thirty days from the date of the same, the day of the date inclusive. (Md. Ann. Code 1911, Art. 16.) § 1632. Clerical mistakes in decrees and orders — Cor- rection. 187. Clerical mistakes in decrees or decretal orders, or errors arising from any accidental slip or omis- sion, may, at any time before the enrollment of such de- crees or orders, be corrected by order of the court or judge thereof upon petition, without the form or expense of a rehearing. (Md. Ann. Code 1911, Art. 16.) § 1633. Petition for rehearing — Contents — Signature — Time for granting. 188. Every petition for rehearing shall contain the special matter or cause on which such rehearing is applied for, and shall be signed by solicitor or the petitioner himself; and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party, or by some other person. No rehearing shall be granted after the enrollment of the decree or MARYLAND STATUTES AND RULES 1213 decretal order; and if the decree or order has been ex- ecuted, parties who have acted on the faith of such decree or order shall not be prejudiced by such decree or order being reversed or varied. (Md. Ann. Code 1911, Art. 16.) § 1634. Writs to several counties — Costs for wrongful issue. 189. Where it shall appear that the court has ju- risdiction of a case, but there is doubt as to the residence of a party against whom process is necessary, or the same be wrongfully alleged, several writs may be issued, as of course, to as many counties within the state, or requisite process concurrently to different places without the state, or both writs and process, within and without the state, for service upon such party; but if any process hereunder be vexatiously or unnecessarily issued, the court may or- der the costs of same to be paid by the party asking or directing the issue of such process. (Md. Ann. Code 1911, Art. 16.) § 1635. Enforcement of decree — Attachment^ — Seques- tration — Injunction — Practice. 190. The court may, for the purpose of executing a decree, or to compel the de- fendant to perform and fulfil the same, issue attachment of contempt, attachment with proclamations and seques- tration against the defendant, and may order an imme- diate sequestration of the real and personal estate and ef- fects of the defendant, or such parts thereof as may be necessary to satisfy the decree and clear the contempts, or may issue a fieri facias against the lands and tenements, goods and chattels of the defendants, to satisfy the said decree, or may issue an attachment by way of execution against the lands, tenements, goods, chattels and credits of the defendant, to satisfy the said decree; or the court may cause, by injunction, the possession of the estate and effects whereof the possession or a sale is decreed, to be delivered to the plaintiff, or otherwise, according to the tenor and import of such decree, and as the nature of the case may require; and in case of sequestration, the court shall order payment and satisfaction to be made out of the estate and effects so sequestrated, according to the true intent and meaning of the decree; and in case any defendant shall be arrested and brought into court 1214 EQUITY PRACTICE upon any process or contempt issued to compel the per- lormance of any decree, the court may, upon motion, order such defendant to stand committed, or may order his estate and effects to be sequestrated, and payment made as above directed, or possession of his estate and effects to be delivered by injunction as above directed, until such decree or order shall be fully performed and executed, according to the tenor and .true meaning thereof, and the contempt cleared; but where the decree only directs the payment of money, no defendant shall be imiorisoned, and process of commission of rebellion and &ergeant-at-arms are abolished. (Md. Ann. Code 1911, Art. 16.) § 1636. Enforcement of orders — Costs. 191. All orders may be enforced by such process as might be had upon a judgment or decree to the like effect; and the payment of costs adjudged to any party, or to any officer of any court, may be enforced in like manner, without special or further order for their payment. (Md. Ann. Code 1911, Art. 16.) § 1637. Writs for enforcement of decrees, orders, etc. — Issue to different counties — Docketing' — Lien — Renewal — Costs when vexatiously issued. 192. Upon decrees, or- ders and for costs adjudged, a party shall have the right to order as many writs of different kinds, for the enforcement of the same, and to one or as many coimties as he shall see fit; but when issued to a county other than that in wl^ch the case shall be, the writ shall be sent by the clerk, with a short copy of the decree or order and docket entries, and a statement of the costs, to the clerk of the court of the county to which issued (in Baltimore city, the Superior Court), and there dock- eted, and shall be a lien on lands only from the time it is so docketed, and may be there from time to time renewed. as now in common-law cases, by the issue of the like or other writs; but the court in which such case shall orig- inally be may order that the party directing vexatiously or unnecessaril}^ any writ hereunder, shall pay the cost of the same. (Md. Ann. Code 1911, Art. 16.) § 1638. Enforcement of order or decree for delivery MARYLAND STATUTES AND RULES 1215 of chattels. 193. An order or decree for the delivery of chattels may be enforced by the same writs, and all of them, as are used in the action of replevin at common law, as well as those which would have been heretofore used for its enforcement in the equity courts of this state. (Md. Ann. Code 1911, Art. 16.) § 1639. Bill for discovery — Failure to answer — Exami- nation of plaintiff — Decree. 194. In all cases where a bill for discovery merely is filed against a defendant of full age, and the subpoena issued thereon is returned sum- moned, and the defendant fails to answer within the time fixed by the rules or order of the court, upon satisfactory proof, by affidavit .or otherwise, being produced to the court that such subpoena was duly served, the court may examine the plaintiff in open court, or upon interrogato- ries, on oath, touching the truth of the allegations in the bill ; and if from such examination the court shall be sat- isfied prima facie that the allegations in the bill are true, then a decree shall be passed which shall have the same effect, in evidence or otherwise as the answer of the de- fendant confessing all the allegations of the bill could have; or if the subpoena shall be returned summoned, and the defendant shall fail to appear, or, after appearance, shall fail to answer, an attachment of contempt may is- sue; and if the said attachment is returned served, and the defendant fails to appear or answer, as the case may be, the court, upon being satisfied of the service of both subpoena and attachment, may pass a decree ijro confesso, or if in such case the attachment is returned non est in- ventus, an attachment with proclamations may issue ; and if the defendant shall fail to appear or answer, as the case may be, the court, upon being satisfied of the service of the subpoena, may pass a decree pro confesso, without examining the plaintiff, in its discretion ; and such decree, in either case, shall have all the effect, in evidence or oth- erwise, that the answer of such defendant confessing all the allegations in the bill would have. (Md. Ann. Code 1911, Art. 16.) § 1640. Failure to appear — Attachment — Decree pro confesso. 195. In any case where a defendant has been 1216 EQUITY PRACTICE returned summoned and shall fail to appear, an attach- ment may issue to compel the appearance; and if the at- tachment is served and the party fails tp appear by the first day of the next term after the term to which such attachment was returnable, or if the attachment be re- turned non est, an attachment with proclamations may issue, and if the defendant shall not appear by the first day of the term next after that to which the attachment with proclamations was returnable, the court in either case may pass a decree pro confesso, or may order testi- mony to be taken ex parte. (Md. Ann. Code 1911. Art. 16.) § 1641. Failure to answer — Attachment — Commitment — Decree pro confesso. 196. If any defendant after ap- pearance shall fail to answer within the time prescribed by the rules of court, an attachment may issue against such defendant to compel him to answer, and he may be committed as for a contempt for not answering; and if the attachment shall be returned served, and the defend- ant does not answer by the first day of the term next after that to which the attachment was returnable, or if the at- tachment be returned non est, an attachment with procla- mations may issue; and if the defendant shall fail to an- swer by the first day of the term next after that to which the last named attachment was returnable, the court in either case may pass a decree pro confesso against such defendant, or may order testimony to be taken ex parte; any defendant under this or the preceding section may answer at any time before final decree, on such terms as the court may prescribe. (Md. Ann. Code 1911, Art. 16.) § 1642. Failure to appear or answer — Proceedings by plaintiff. 197. A plaintiff may take, at his election, any of the proceedings authorized by this article against a defendant who fails to appear or answer. (Md. Ann. Code 1911, Art. 16.) ■ § 1643. Issue of process — Commission to take testi- mony. 198. A court of equity may issue process of any sort, including commissions to take testimony, to any part of the state. (Md. Ann. Code 1911, Art. 16.) § 1644. Mandate or injunction — Issue of. 199. The MARYLAND STATUTES AND RULES 1217 court may at any stage of a cause or matter, on the ap- plication of any party thereto, or party in interest, by motion or petition, or of its own motion, order the issue of a mandate (affirmative injunction) or injunction, di- recting and commanding any party to such cause or mat- ter, or any party properly brought before it under the existing practice, to do, or abstain from doing, any act or acts, whether conjointly or in the alternative, whether in the nature of specific performance or otherwise named in such mandate or injunction, and may make such terms and conditions (as to security, etc.), as to it may seem fit, preliminary to the granting of such mandate or injunc- tion. (Md. Ann. Code 1911, Art. 16.) § 1645. Discharge of mandate or injunction — Motion — Appeal. 200. Any party to the cause or matter, party in interest or party against whom such mandate or injunc- tion may issue, may move to have the same discharged or dissolved, and an appeal may be taken by any of such parties from the order granting such mandate or injunc- tion, or the refusal to discharge or dissolve the same in such cases, and in such manner and on such terms as is now allowed in cases of injunctions. (Md. Ann. Code 1911, Art. 16.) § 1646. Possession of property or receipt of income pendente lite — Power of court — Appeal. 201. The court may, at any stage of any cause or matter concerning prop- erty, real or personal, on application, or of its own mo- tion, pass such order as to it may seem fit, with regard to the possession of the same, pendente lite, or the receipt of the income thereof, on such terms preliminary thereto (as to security, etc.), as to it may seem just, subject to the same right to move for its discharge, and the same right of appeal as is given in the preceding section. (Md. Ann. Code 1911, Art. 16.) § 1647. Order charging income, interest or dividends — Service — Discharge. 202. The court may, on such terms and conditions (as to security, etc.), preliminary thereto, as to it may seem fit, in any cause or matter, upon appli- cation by any party thereto, or party in interest, or of its own motion, pass an order charging the income, or 1218 EQUITY PRACTICE the interest or dividends on any property, real or per- sonal, or phose in action, for any purpose, and the same shall take effect from the time when it shall be by copy served on, or otherwise come to the knowledge of, the person or persons, or corporation (through its proper officer), whose duty it might be to pay the same to the person, persons or corporation otherwise entitled to the same ; but such person or persons, or corporations, or any of them, or the person or persons, or corporation, whose duty it is to pay the same, or any party to the cause or matter, or in interest, shall be entitled to apply by peti- tion or motion for the discharge of such order; and such order, or the refusal to discharge the same, shall be sub- ject to the same right of appeal as that given in sections 199-201. (Md. Ann. Code 1911, Art. 16.) § 1648. Orders binding as to persons against whom is- sued. 203. All orders or writs issued under the four fore- going sections, shall bind any person or persons, or corporation, against whom the same may be passed or is- sued, from the time when the passing or issuing of the same shall come to the knowledge of such person or per- sons, or corporation, by service or otherwise. (Md. Ann. Code 1911, Art. 16.) § 1649, Decrees against infants and insane persons. 204. No decree pro confesso shall be passed against an in- fant or insane defendant under the preceding sections relating to process; but such infant or insane defendant shall be proceeded against according to the provisions of this article relating specially to infants and persons non compotes mentis. (Md. Ann. Code 1911, Art. 16.) § 1650. Passing upon questions of law. 205. If it ap- pear to the court, either from the pleadings or otherwise, that there is a question of law in any case, which it would be convenient to have decided before any evidence is given, or any question or issue of fact is tried, the court may make an order accordingly, and may direct such question of law to be raised for the opinion of the court, either by special case or in such other manner as the court may deem expedient; and all such proceedings as the decisions of such questions of law may render unneces- MARYLAND STATUTES AND RULES 1219 sary may therefor be stayed. (Md. Ann. Code 1911, Art. 16.) § 1651. Stating special case — Entitling and docketing. 206. Any person interested, or claiming to be interested, in any question cognizable by a court of equity, as to the construction of any statute, deed, will, or other instru- ment of writing, or as to any other matter falling within the original jurisdiction of such court, or made subject to the jurisdiction thereof by statute, may state and raise such question before the court in the form of a special case stated, instead of formal pleading. Every such spe- cial case stated shall be entitled as a cause between some one or more of the parties interested, or claiming to be interested, as plaintiff or plaintiffs, and the others of them as defendants; and such special case shall be regu- larly docketed as a cause pending in said court, and shall be in all respects, and for all purposes, treated and re- garded as a pending cause, as if regularly instituted by formal pleading. (Md. Ann. Code 1911, Art. 16.) § 1652. Contents of special case — ^Hearing — Decree. 207. Such special case shall concisely state such facts and documents as may be necessary to enable the court to de- cide the question intended to be raised, and it shall be divided into paragraphs, consecutively numbered; and upon the hearing of such case, the court and the parties shall be at liberty to refer to the whole contents of such documents, and the court shall be at liberty to draw from the facts and documents stated and referred to in such special case, any inference which the court might have drawn therefrom if such facts and documents were proved under formal pleading. And upon such special case stated, the court may decree as upon bill and answer, and such decree shall be enforced as other decrees are; but such decree shall in no case conclude or affect the rights of any other persons than those who are parties to such special case, and those claiming under or through such parties; and the right of appeal shall exist as in cases of decrees upon bill and answer. (Md. Ann. Code 1911, Art. 16.) § 1653. Persons under disability as parties to special 1220 EQUITY PRACTICE case. 208. Married women may join in any special case stated, with their husbands, and infants having guard- ians, and lunatics having committees may join in such special case by their guardians, or committees, in respect to any interest or right represented by such guardians or committees; and all the parties to such special case shall sign the same in person or by solicitor, and the appearance of the parties shall be entered to said case, as to a cause regularly instituted by formal proceedings; and all the parties to such special case shall be subject to the juris- diction of the court in the same manner as if the plaintiff in the special case had filed a bill against the parties named as defendants thereto, and such defendants had appeared to such bill, and by answer admitted the facts thereof. (Md. Ann. Code 1911, Art. 16.) § 1654. Revivor against heirs or representatives. 209. When any plaintiff, or any defendant, who has been duly summoned to answer a bill or petition in any of the equity courts of this state shall die before the final decree, leav- ing heirs at law or representatives who should be made parties to said cause, or any one has been omitted as a plaintiff or defendant in any equity cause, it shall not be necessary to file an amended bill or petition in said cause, but on a short petition setting forth their interest in said cause they shall be made a party plaintiff, or if a defend- ant, the court shall cause a summons to be issued requir- ing said party or parties to answer said bill or petition as originally filed ; and said short petition shall be taken and considered as part of said bill. (Md. Ann. Code 1911, Art. 16.) § 1655. Seal to pleadings of corporation not essential. 215. It shall not be necessary for the answer or any other pleadings of a corporation to be under the corporate seal. (Md. Ann. Code 1911, Art. 16.) Sales § 1656. Foreclosure sales — Deficiency decree — Effect. 217. When any suit is instituted to foreclose a mortgage, the court may decree that, unless the debt and costs be paid by a day fixed by the decree, the property mortgaged, MAKYLAND STATUTES AND RULES 1221 or so much thereof as may be necessary for the satisfac- tion of said debt and cost, shall be sold; and such sale shall be for cash, unless the plaintiff shall consent to a sale on credit; and if upon the sale, under such decree, of the whole mortgaged property, the net proceeds there- of, after the costs allowed by the court are satisfied, shall not suffice to satisfy the mortgage debt and accrued in- terest, as this shall be found by the judgment of the court upon the report of the auditor thereof, the court may, upon the motion of the plaintiff, enter a decree in per- sonam against the mortgagor, or other party to the suit, who is liable for the payment thereof ; provided, the mort- gagee would be entitled to maintain an action at law upon the covenants contained in said mortgage for said residue of the said mortgage debt, so remaining unsatisfied by the proceeds of such sale; which decree shall have the same effect as a judgment at law, and may be enforced only in like manner, by a writ of execution in the nature of a writ of fieri facias, or otherwise. (Md. Ann. Code 1911, Art. 16.) §1657. Sale of reversion — Disposing of rents. 221. When there is a decree for the sale of any reversion in lands to which rent is incident, the court may order any rent in arrear to be sold with such estate, and the pur- chaser shall have the same right to recover such rent by distress, entry or action, as if he had been owner of the estate when the rent accrued. (Md. Ann. Code 1911, Art. 16.) § 1658. Sale before final decree — Custody of proceeds. 222. In all cases where a suit is instituted for the sale of real or personal property, or where from the nature of the case a sale is the proper mode of relief, the court, in its discretion, may order a sale of the property before final decree, if satisfied clearly by proof that, at the final hear- ing of the case, a sale will be ordered, and order the money arising from such sale to be deposited or invested, to be disposed of as the court shall direct by the final decree. (Md. Ann. Code 1911, Art. 16.) § 1659. Compelling purchaser to comply with terms of sale — Re-sale. 224. The court shall have full power and 1222 EQUITY PRACTICE authority, on application by bill or petition of the trustee appointed by said court to sell real estate, to compel the purchaser thereof to comply with all or any of the terms of such sale, by process of attachment or other execution suited to the case; or the said court, upon such applica- tion, may direct the property purchased to be re-sold, at the risk of such purchaser, upon such terms as the court may direct; and in such case, if the proceeds of the re- sale, after payment of the expenses thereof and of all costs of proceeding, shall not be equal to the payment of the purchase money originally bid therefor, the court may order and direct the difference to be paid by the said pur- chaser, and enforce such order by execution. (Md. Ann. Code 1911, Art. 16.) § 1660. Terms of sale. 225. All sales made under a de- cree or order of the court shall be made on such terms and conditions as the court may determine, except where the sale is required by law to be made for ready money. (Md. Ann. Code 1911, Art. 16.) § 1661. Bond where sale made on credit. 226. In case a sale shall be made on credit, the court may, upon appli- cation of the mortgagee or creditor, direct any bond taken in consequence of such sale to be assigned to such mort- gagee or creditor, and the assignee may sue on such bond in his own name. (Md. Ann. Code 1911, Art. 16.) § 1662. Sale of equitable title. 227. The court may de- cree a sale of an equitable title in any case where a decree for the sale of the legal title could be passed, and the purchaser of such equitable title shall have the same rem- edy for obtaining the legal title, that the person whose equitable interest he purchased would have had if no sale had been made. (Md. Ann. Code 1911, Art. 16.) Receivee's Bond § 1663. Corporation surety on receiver's bond — Pen- alty. 230. Wherever a receiver shall be required to give bond in any court and the surety upon the bond is a cor- poration authorized by the laws of this state to qualify as such, the amount of the penalty of the bond so required shall be fixed by the court in an amount not exceeding MARYLAND STATUTES AND RULES 1223 the probable value of the propertyand assets of the estate for which the said receiver should account and be liable for according to law, and nothing herein shall prevent the court from increasing the penalty of the bond to such an amount, as may be proper, for sufficient cause shown. (Md. Ann. Code 1911, Art. 16.) Specific Peefoemancb § 1664. Refusal to grant on ground of adequate remedy at law— Security required of resisting party. 231. No court shall refuse to specifically enforce a contract on the mere ground that the party seeking its enforcement has an adequate remedy in damages, unless the party resist- ing its specific enforcement shall show to the court 's sat- isfaction that he has property from which such damages may be made, or shall give bond, with approved secu- rity, in a penalty to be fixed by the court, to perform the contract or pay all such costs and damages as may, in any court of competent jurisdiction, be adjudged against him for breach or non-performance of such contract. (Md. Ann. Code 1911, Art. 16.) Texjstbe § 1665. Sale by trustee. 232. In all cases where a de- cree for a sale passes, the court may appoint a trustee to make such sale. (Md. Ann. Code 1911, Art. 16.) § 1666. Bond of trustee. 233. Every trustee appointed by decree to make a sale before he sells, shall give bond to the state of Maryland, with surety or sureties, to be ap- proved by the judge of the court or the clerk thereof in such penalty as the said judge may prescribe; provided, that whenever the surety on said bond is a corporation authorized by the laws of this state to qualify as such, the amount of the penalty of the bond shall be an amount not exceeding the probable value of the property to be sold by said trustee; and nothing herein shall prevent the court from increasing the penalty of any bond to such an amount as it may see proper, for sufficient cause shown; said bond to be conditioned that such trustee shall faith- fully perform and execute the trust reposed in him, and 1224 EQUITY PRACTICE such trustee shall report, under oath, any sale he may make to the court, and also report his proceedings when- ever he may be required by the court. (Md. Ann. Code 1911, Art. 16.) § 1667. Confirmation of trustee's sale. 234. No sale made by a trustee appointed by the court shall be valid unless such sale is confirmed by the court; and the court may order any such trustee to bring into court any money, notes or bonds he may receive for the purchase money on any sale he may make, to be disposed of as the court may direct. (Md. Ann. Code 1911, Art. 16.) § 1668. Filing trustee's bond. 236. The bond of every trustee appointed by the court, and the bonds of trustees who are ordered by the court to give bond, shall be filed with the clerk of such court and recorded. (Md. Ann. Code 1911, Art. 16.) Witnesses and Testimony § 1669. Commissions to take testimony — Examiners — Powers — Fees. 252. Except where testimony is to be taken beyond the limits of the state, or beyond the limits of the county or city for which the court exercises juris- diction, no commissions to take testimony shall issue. The circuit court for each of the counties, and the supreme bench of Baltimore city, shall each appoint two or three experienced and competent examiners, who shall, upon qualification, be officers of the court ; and for any special reason, a special examiner may be appointed. These ex- aminers shall have authority to issue subpoenas for wit- nesses, administer oaths, notify parties of the time of their sittings, and to preserve order and decorum during their sessions. Any person refusing to obey subpoenas issued by such examiners, or who shall be guilty of violating the order and proper decorum of the sessions of said ex- aminers while in the discharge of their duties shall be reported by the examiners, together with the facts of the case, to the court; and upon hearing, the court, if satis- fied of the facts as reported, and that the party was guilty of the matter charged, shall punish the party so offending. Such examiners shall be entitled to receive four dollars MARYLAND STATUTES AND RULES 1225 per day, for each and every day actually employed; to be paid by the party at whose instance the service may have been rendered. And it shall be the duty of such examiners, in making their returns to the court, in each case, to certify the time that they have been actually employed, and at whose instance, and the amount taxable to each party for services rendered. (Md. Ann. Code 1911, Art. 16.) § 1670. Notice to examiner — Fixing hearing — Notice — Subpoenas. 253. Whenever any cause is at issue, involv- ing matter of fact, or whenever any evidence is required to be taken, to be used in any proceeding in equity, it shall be competent to the party desiring to take evidence, by leave of the court or judge thereof, to notify one of the regular examiners, or any special examiner that may be appointed, of such desire, and to furnish him with the titling of the cause and the names of witnesses to be sum- moned to testify; and the examiners so applied to shall fix some reasonable day or days for the examination of witnesses, and the taking of evidence, of which he shall give due notice to the parties concerned, or those entitled to receive such notice, as if he were proceeding under a commission to take testimony, under former practice. He shall issue subpoenas for witnesses for either party, ex- cept where he is required to proceed ex parte; and he shall cause to come before him all witnesses subpoenaed, at the time appointed, to be examined ; and their attendance and duty to testify may be enforced by attachment, to be is- sued and returned as provided in section 268. (Md. Ann. Code 1911, Art. 16.) § 1671. Examination of witness before examiner. 254. All examinations of witnesses before the examiners shall be conducted in the presence of the parties, or their solic- itors, if they think proper to be present; and the mode of examination shall be either by written interrogatories filed with the examiner, to be by him propounded to the witnesses, and the answers thereto written down by him, as has heretofore been the practice of commissioners in taking testimony; or the witnesses may be examined by the parties, or their solicitors, viva voce; and in such 1226 EQUITY PRACTICE case, the answers of the witnesses shall be reduced to writing by the examiner, and the questions also, if neces- sary to the understanding of the answers of the witness, or if it be required by either party. The testimony pro- duced by both parties shall be taken before the same ex- aminer, unless, for special reasons, it be otherwise di- rected by the court or judge thereof, and all viva voce examinations shall, as near as may be, be conducted in the manner and order of the examination of witnesses in the trials of fact in the courts of common law. The de- fendant shall not be compelled to proceed with the taking of his testimony until the plaintiff has finished or de- clared he has none to take ; nor shall the plaintiff be com- pelled to proceed with the rebutting testimony until the defendant has completed the testimony on his part. (Md. Ann. Code 1911, Art. 16.) § 1672. Concluding- interrogatory by examiner. 255. In all examinations, whether' conducted by written inter- rogatories or viva voce, at the conclusion of the examina- tion by the parties, the examiner shall put to the wit- ness an interrogatory in the following form: "Do you know, or can you state, any other matter or thing which may be of benefit or advantage to the parties to this cause, or either of them, or that may be material to the subject of this your examination, or the matters in ques- tion between the parties? If yea, state the same fully and at large in your answer." And the examiner shall write down the answer to said interrogatory as part of the deposition of the witness. (Md. Ann. Code 1911, Art. 16.) § 1673. Testimony to be written down — Signing — Ob- jections — Questions of privileg^e. 256. In all cases the testimony shall be written down in the language of, and as delivered by, the witness, and when completed shall be read over to the witness, and be signed by him in the presence of the parties or their solicitors, or such of them as may attend ; but if the witness, for any cause, may not be able to sign the same, or shall for any reason refuse so to do, the examiner shall sign the deposition, stating the reason why the witness has not signed the MARYLAND STATUTES AND RULES 1227 same; and the examiner may, upon all examinations, state any special matters to the court that he may deem proper, to enable the court the better to understand the evidence. Any question or questions that may be ob- jected to by either of the parties shall be noted by the examiner upon the deposition; but he shall not have power to decide on the competency, materiality or rel- evancy of any question proposed or evidence elicited, nor as to the competency or privilege of any witness offered. All questions of privilege raised, or demurrer interposed, by any witness, to questions propounded, shall be at once reported by the examiner to the court or judge thereof for decision, and the court or judge shall hear and determine the same without delay; and in such cases the court may award costs as justice may appear to require ; and in all cases the court shall have full power to deal with and to direct tlie payment of the cost of in- competent, immaterial or irrelevant evidence, or any part thereof, as justice may require, apart from the general costs of the case. (Md. Ann. Code 1911, Art. 16.) §1674. Closing depositions — Authenticating. 257. So soon as the examination of witnesses before the ex- aminer shall be concluded, the original depositions, with all vouchers, documents or other papers filed with the examiner as evidence, shall be put together in proper order and form, so as to be convenient for reference and use, and be authenticated by certificate and signature of the examiner, and by him enclosed, with the titling of the cause endorsed thereon, and filed with the clerk of the court, without delay. (Md. Ann. Code 1911, Art. 16.) § 1675. Hearing to be prompt — Rule on adverse party — Enlarging time. 258. Testimony shall be taken with- out any unnecessary delay, and it shall be the duty of the examiner to avoid such delay as far as possible. After the lapse of a reasonable time for the taking of testi- mony, either party may obtain a rule on the adverse party to close the taking of his testimony within such reason- able time after notice of such rule as may be deemed proper; and any testimony taken after the lapse of that time shall not be read in evidence at the hearing of the Whitehouse E. P. Vol. II — 22 1228 EQUITY PRACTICE cause. But it shall be in the discretion of the court to enlarge the time, on application of the party against whom such rule may have been obtained, upon sufficient cause shown. (Md. Ann. Code 1911, Art. 16.) § 1676. Opening depositions — Holding for exception. 259. Evidence taken and returned shall be opened by the clerk, and shall remain in court ten days, subject to ex- ception, before the cause shall be taken up for hearing, unless, by agreement of the parties, such time be waived ; but after the expiration of that time the cause shall stand for hearing, unless some sufficient cause be shown to the contrary. This section not to apply to interlocutory applications. (Md. Ann. Code 1911, Art. 16.) § 1677. Examination of witnesses de bene esse. 260. The examination of witnesses de bene esse or for the per- petuation of their testimony, when by law allowed, may be had before an examiner, in the mode and form as. pre- scribed in sections 254, 255, 256 and 257; and if no good objection be made to such testimony in twelve months from the time of the return to court thereof, the court shall order the same to be recorded in perpetual mem- ory. (Md. Ann. Code 1911, Art. 16.) § 1678. Oral examination of witnesses. 261. The court shall, on application of a party in interest, or may, of its own motion, order, that instead of the mode of taking testimony as provided in the foregoing sections, the testi- mony shall be taken orally in open court before the judge or judges thereof in the same manner and under the same rules as testimony is now taken in actions at law, as to all or any of the facts or matters relevant in the cause or proceeding; and the evidence so taken shall be written down as delivered by the witnesses by such person, and in such manner as the court may have by special order or general rule directed, and when so written down shall, with such documentary proof as shall have been with it offered and admitted, be filed as part of the proceedings. (Md. Ann. Code 1911, Art. 16, as amended 1914.) § 1679. Same. 261a. Testimony produced under the aforegoing section shall be taken in the same manner and under the same rules as testimony taken in actions at law in courts of general jurisdiction in this State, and no evi- MARYLAND STATUTES AND RULES 1229 dence to which objection has been made and sustained by the court shall be taken down or inserted in the record, but the party offering such testimony may accompany the offer of the same with a statement of the facts pro- posed to be shown in connection therewith, and such statement shall be considered by the court in connection with the question objected to, and the Court of Appeals, upon appeal from any final order in the case, shall con- sider and determine upon the record, all objections to testimony taken and reserved during the progress of the cause, and no bills of exception shall be required. (Md. Ann. Code 1911, Art. 16, as amended 1914.) § 1679a. Same. 261b. Whenever a case has already been before the Court of Appeals, it shall not be neces- sary, upon any subsequent appeal, to copy into the trans- cript of the record any other proceedings than those occurring in the court below, subsequent to the preceding appeal ; but the record of the proceedings in the previous appeal shall be taken and considered as part of the record in the siibsequent appeal the same as though actually copied therein. (Md. Ann. Code 1911, Art. 16, as amended 1914.) § 1680. Taking testimony for hearing of interlocutory applications. 262. Upon any petition, motion, or other interlocutory application, for the hearing and determina- tion of which evidence may be required, the court or judge thereof may order testimony to be taken before an examiner, or before a justice of the peace, upon such notice, and in such manner as the court or judge may think proper to direct, to be used at the hearing of such matter. (Md. Ann. Code 1911, Art. 16.) § 1681. Issue of commission to take testimony. 263. All commissions which shall be issued to take testimony in causes pending in any court of equity of this state, shall be issued and directed to two persons to be named and appointed by the said court, or the judge thereof. (Md. Ann. Code 1911, Art. 16.) § 1682. Issue to one person. 264. A commission to take testimony may issue to one person with consent of the parties. (Md. Ann. Code 1911, Art. 16.) § 1683. One commissioner to act — Duties as clerk. 265. 1230 EQUITY PRACTICE AMiere a commission to take testimonj- in chancery shall issue to two commissioners, only one shall act on the same day, unless both are called upon under a requisition of the parties; and the commissioner shall also be required to act as clerk, without extra compensation, unless a clerk is asked for by one of the parties contestant. (Md. Ann. Code 1911, Art. 16.) § 1684. Rules for taking testimony — Fees of commis- sioner.* 266. With a view to the speedy execution and return of commissions to take testimony, the court, or any judge thereof, shall prescribe such rules as the nature of the case may require. * * * (Md. Ann. Code 1911, Art. 16.) § 1685. Compelling witness to attend and answer. 268. "When any witness is summoned by an examiner or com- missioner to take testimony in a chancery suit or pro- ceeding, to appear before such examiner or commissioner to give testimony in such suit or proceeding, and such witness shall refuse or neglect to attend, or attending, shall refuse to answer such interrogatories as are pro- pounded to him, in all such cases the examiner or com- missioner, at the request of either party to such suit or proceeding, shall immediately certify such default or neglect, under his hand as such examiner or commis- sioner, to the clerk of the court where such suit or pro- ceeding is pending, who, upon the receipt thereof, shall forthwith issue an attachment against the person named in such certificate, and the court may allow such process to compel such witness to attend and give evidence in open court in such suit or proceeding, at such term of the court thereafter as the party applying for such attachment shall request, and such process shall be directed to the sheriff or coroner of the county or Baltimore city wherein the person to be attached resides; and after return is made, such process may be renewed from term to term, as the case may require; provided, that the party obtain- ing such process shall give -^'ritten notice to the opposite * Art. 16, Sees. 266 and 267, provide for per diem fees, to be taxed as costs, as f ollovTS : Goininifsioner, $4 for time he actually serves ; his clerk, $2.50; witnesses, 75 cents, plus itinerant charges as allowed by the examiner or commissioner. MARYLAND STATUTES AND RULES 1231 party, or his counsel, of the time of the return thereof. (Md. Ann. Code 1911, Art. 16.) § 1686. Failure of part of defendants to appear. 269. In all cases where any of the defendants have appeared and an order to take testimony before an examiner has issued, and there are other defendants who are in default for not appearing or answering, and against whom an order to take testimony ex parte might issue, it shall not be necessary to pass such order, but the plaintiff may take all his testimony before the examiner, and such testimony shall be as available against the defendants who are in default, as if the same was taken under an ex parte order. (Md. Ann. Code 1911, Art. 16.) § 1687. Addition to or alteration of rules. 270. The incorporation in this article of the rules prescribed by the court of appeals shall not deprive the said court of the power to rescind or modify any of said rules, or to pass additional rules, in their discretion. (Md. Ann. Code 1911, Art. 16.) § 1688. Removal of case from law to equity. 44. In every case at law or in equity in which it shall appear that the plaintiff is entitled to some relief or to some remedy, but not in the particular court, or on the side of the court in which the suit is brought or the relief is prayed, the plaintiff shall not on that account be non- suited or the case dismissed ; but the case may, in the dis- cretion of the judge presiding in the court in which the suit is pending, at any time in any action at law, before the jury retire to consider their verdict, or in a suit in equity, before the final decree is signed, be removed by an order in writing signed by the judge or judges there presiding, to such proper court or docket, either of equity or law, in the same county or city, as the nature thereof may require, and thereupon such proceedings shall be had by amendment of the pleadings and otherwise, as shall conform the case to the course of the court to which the same shall have been removed under such general or special rules as each of such courts may prescribe for the adjustment of costs, the prevention of delay and the pro- motion of justice. (Md. Ann. Code 1911, Art. 26.) 1232 EQUITY PRACTICE Appeal § 1689. When allowed from final decree — Costs on af- firmance. 26. An appeal shall be allowed from any final decree, or order in the nature of a final decree, passed by a court of equity by any one or more of the persons par- ties to the suit, with or without the assent or joinder of plaintiffs or co-defendants in such appeal; provided that if the court of appeals shall affirm the decree of the court below, they shall not award costs of the appeal against any one except the appellant. (Md. Ann. Code 1911, Art. 5.) § 1690. When allowed in specified cases — Injunctions, receiverships, sales, etc. 27. An appeal may also be al- lowed in the following cases, to wit: From any order granting an injunction, or from a re- fusal to dissolve the same, or an order appointing a re- ceiver, the answer of the party appealing being first filed in the cause; from an order dissolving an injunction; from an order for the sale, conveyance or delivery of real or personal property, or the payment of money, un- less such delivery or payment be directed to be made to a receiver appointed by such court; or from an order de- termining a question of right between the parties, and directing an account to be stated on the principle of such determination. (Md. Ann. Code 1911, Art. 5.) § 1691. Effect on previous orders. 28. On an appeal from a final decree or order, all previous orders which may have been passed in the cause shall be open for revision in the court of appeals, unless an appeal under the preceding section shall have been previously taken from such order. (Md. Ann. Code 1911, Art. 5.) § 1692. Appeal as supersedeas — Bond. 29. No appeal from any decree or order shall stay the execution or sus- pend the operation of such decree or order, unless the party praying the appeal shall give bond, with security, to indemnify the other party or parties from all loss or injury which said party or parties may sustain by reason of such appeal and the staying the execution, or opera- tion of such decree or order; such bond to be approved MARYLAND STATUTES AND RULES 1233 by the judge or clerk of the court where the proceedings are pending, and the penalty to be fixed by such court, and upon giving such bond the appeal shall stay the operation of all such decrees or orders; provided, how- ever, that if in its discretion the court in which such proceedings are pending shall decide that the case is not a proper one for such stay, such court may pass an order upon such terms (as to duration, keeping an account, giving security, etc. ) as to it may see fit, directing that the decree or order appealed from shall not be stayed by such appeal, or only so far or on such terms as the court shall therein direct. (Md. Ann. Code 1911, Art. 5.) § 1693. Staying operation of previous order — Bond. 80. In case a party intends, on an appeal from a final decree or order in the case, to dispute any previous order, and desires to stay the operation of such order, he shall state his intention to dispute the same, in writing, to be filed with the clerk, and shall give bond in such penalty as the court may prescribe, with security to be approved by the court or the clerk, to indemnify the other party from all loss and injury which such party may sustain by reason of the staying of the operation of such order. (Md. Ann. Code 1911, Art. 5.) § 1694. Time for taking and entering appeal. 32. All appeals allowed from decrees or orders of courts of equity shall be taken and entered within two months from the date of the decree or order appealed from, and not after- wards ; unl,ess it shall be alleged on oath that such decree or order was obtained by fraud or mistake, in which case the appeal shall be entered within two months from the time of the discovery of the fraud or mistake, and not afterwards. (Md. Ann. Code 1911, Art. 5.) § 1695. Transcript of record — Transmitting. 33. All transcripts of records, on appeals from courts of equity, shall be made and transmitted to the court of appeals within three months from the time of the appeal prayed ; but on appeals taken as provided by section 31, the tran- script of the record shall be made and transmitted to the court of appeals forthwith after the appeal prayed. (Md. Ann. Code 1911, Art. 5.) 1234 EQUITY PRACTICE §1697. Incorporating substance of documents— Tran- script. 35. Whenever deeds, records or other documen- tary evidence are used in any equity cause, the purport and substance only of such deeds, records or other instru- ments shall be stated, and they shall not be set out in full in any ease, except where some question arises upon the construction or validity thereof; and transcripts of records in equity causes shall be prepared in accordance with this rule. Any party to the appeal, however, shall have the right to direct any or all of such documentary proof to be inserted at length, the clerk stating at whose instance the same is so inserted, that costs may be awarded as the matter so incorporated may be deemed proper or not, by the court of appeals, to have been set out in full. (Md. Ann. Code 1911, Art. 5.) § 1698. Objections raised in appellate court. 36. On an appeal from a court of equity, no objection to the com- petency of a witness, or the admissibility of evidence, or to the sufficiency of the averments of the bill or petition, or to any account stated and reported in said cause, shall be made in the court of appeals, unless it shall appear by the record that such objection was made by exceptions, filed in the court from which such appeal shall have been taken. (Md. Ann. Code 1911, Art. 5.) § 1699. Striking out entry of appeal. 41. If the clerk shall have prepared the record as required by law, and the appellant or plaintiff in error shall have neglected or omitted to pay for such record, or by any other neglect or omission on the part of the appellant or plaintiff in error, the said record shall not be sent to the court of appeals within time, the court from which the appeal was taken may, on motion, strike out the entry of such appeal and proceed to execution, or other proceedings, as if such appeal had never been entered, and thereafter no other appeal or writ of error shall be allowed. (Md. Ann. Code 1911, Art. 5.) §1700. Staying execution — Bond. 53. No execution upon any judgment or decree in any court of law or equity shall be stayed or delayed, unless the person against whom such judgment or decree shall be rendered or MARYLAND STATUTES AND RULES 1235 passed, his heirs, executors, or administrators, or some other person in his or their behalf, shall immediately, upon praying an appeal from any such judgment or de- cree, or suing out a writ of error upon any such judg- ment, enter into bond with sufficient securities in at least double the sum recovered by such judgment or decree, or in double the value of the matter or thing in controversy, which shall have been recovered or decreed, if a movable chattel or chattels, to be estimated by the court from whose judgment or decree the said appeal shall be made or writ of error directed, with condition as follows or to the following effect: That if the said party appellant, or party suing out such writ of error, shall not cause a tran- script of the record and proceedings of the said judgment or decree to be transmitted to the court of appeals within the time required by law, and prosecute the said appeal or writ of error with effect, and also satisfy and pay to the said party in whose favor such judgment or decree was rendered or passed, his executors, administrators or assigns, in case the said judgment or decree shall be affirmed, as well the debt, damages, and costs, or the damages or sum of money or other matter or thing, and costs, adjudged in the court from which the appeal is taken, or writ of error sued out, as also all damages and costs that may be awarded by the court of appeals, then the said bond to be and remain in full force and virtue, otherwise of no effect. (Md. Ann. Code 1911, Art. 5.) GENEEAL EQUITY EULES * § 1701. Courts always open — Terms. The Circuit Courts for the several Counties of this state, and the Cir- cuit Court of the City of Baltimore, and the Circuit Court Number Two of the City of Baltimore, as Courts of Equity, shall be deemed and taken to be always open for the transaction of business therein ; and the several regu- lar terms of said Courts for the return of process and other practical purposes, shall be of two months' dura- tion, and shall commence in the Counties on the first Monday of January, of March, of May, of July, of Sep- tember, and of November of each year; and in Baltimore * Corrected to January 1, 1915. 1236 EQUITY PRACTICE City shall commence on tlie second Monday of January, of March, of May, of July, of September, and of Novem- ber of each year. (Md. Gen. Eq. Eule 1.) § 1702. Duties of clerks as to files and dockets. The several clerks of said Courts shall receive and file all papers pertaining to said Courts respectively, and shall keep substantial dockets, and make all proper entries therein, of papers filed, and of the proceedings of the said Courts, as they occur, so that the docket entries shall always show, as near as possible, the real condition and progress of the proceedings. (Md. Gen. Eq. Eule 2.) § 1703. Commencement of suits. All original proceed- ings in said Courts shall be commenced by bill, or by spe- cial case stated, as hereinafter provided for; the term "bill" to embrace petition or information, where, by statute, or the established practice, petition or informa- tion be proper. (Md. Gen. Eq. Eule 3.) § 1704. Process not to issue before filings of papers. No order or process shall be made or issued upon any bill, petition or other paper, until such bill, petition or other paper, togetheu with all the exhibits referred to as parts thereof, be actually filed with the clerk of the Court. (Md. Gen. Eq. Eule 4.) § 1705. Form of process. The process and mode of publication for giving notice to appear, and for procur- ing the appearance of .parties, shall be the same as that now provided by law, except as the same may be changed or modified by the following rules. (Md. Gen. Eq. Eule 5.) § 1706. When process returnable. All process, other than process to give notice to, or to procure the appear- ance of defendants, shall be made returnable to the first day of the term ensuing the date of such process; and all process that may be issued for the appearance of parties, or to compel appearances, shall be made return- able in the several Counties on the first Monday of the month ensuing the date of its issue, and in Baltimore City shall be made returnable on the second Monday of the month ensuing the date of its issue, but the plaintiff may, by special direction, require any process to be made MARYLAND STATUTES AND RULES 1237 returnable at the return day, next after the first return day, for such process ensuing the issuance of the same. (Md. Gen. Eq. Eule 6.) §1707. Issue of process — Separate summons. When- ever a bill or petition is filed, the clerk shall issue the process, or order of publication thereon, for the appear- ance of the defendants, as of course; and whenever there are more than one defendant, summons may, upon the special direction of the plaintiff, be sued out sepa- rately for each defendant, except in case of husband and wife, or a joint summons against all the defendants may be issued. (Md. Gen. Eq. Eule 7.) § 1708. Service of process. The service of process to require appearance shall be by reading the summons, or other writ or order, to the party to be served therewith ; or by delivering a copy of the same to such party; and in case the party be an infant or non compos mentis, in addition to the service on such party, a copy of the process or order shall be left with the parent or guardian of the infant, if there be one within the jurisdiction of the Court, and with the Committee or other person having the care of the person or estate of the party alleged to be non com- pos mentis; and such service shall be specially certified in the return by the officer making the service. (Md. Gen. Eq. Eule 8.) §1709. Requiring appearance for person under dis- ability — Guardian ad litem — Commissions for taking an- swers abolished. Upon return of process as served, or upon proof of due publication of the order of publication as against non-resident defendants, the Court shall, in case of infant, or non-sane defendants, on application of the plaintiff, or any other party concerned, by order, either require the legal guardian or committee of the infant, or non-sane defendant (if there be such guardian or Committee within the jurisdiction of the Court) to appear, answer and defend for such party, or appoint a guardian ad litem to answer and defend the suit for such party; and in appointing guardians ad litem no person shall be appointed who may have any interest whatever involved in the suit adverse to that of the per- 1238 EQUITY PRACTICE son so under disability. In any case where it may be deemed necessary, the Court, or Judge thereof, may ap- point a solicitor to appear and defend for any infant or non-sane defendant. All commissions for taking answers or to plead shall be and they are hereby abolished. (Md. Gen. Eq. Eule 9.) § 1710. Suit by person under disability. All infants and other persons under any disability to sue, may sue by their guardian or committee, if any, or by their prochein ami; subject, however, to such orders as the Court or Judge thereof may direct for the protection of infants and other persons; but before the name of any person shall be used in any suit to be instituted as next friend of any infant or other party, or as relator in any information, such person shall sign a written authority to the solicitor for that purpose, and such authority shall be filed with the bill or other proceeding. (Md. Gen. Eq. Rule 10.) § 1711. Entering appearance. Defendants shall have fifteen days from the time of the return of process served within which to enter an appearance, before they shall be treated as in default for non-appearance; and from the time of appearance entered, said defendants shall have twenty days within which to answer. And it shall be the duty of the clerk, in all cases in entering the ap- pearance of defendants, to note in the margin of the docket the time of such appearance entered; and if the appearance be by solicitor, and there be more than one defendant, the clerk shall note for which defendant the appearance is entered, and the Court or Judge thereof may, for special reason shown, extend or enlarge the time to answer, according to the nature and circumstances of the case. (Md. Gen. Eq. Eule 11.) § 1712. Failure to appear, answer, plead or demur — Decree pro confesso. Upon services of process, or notice given by publication, as the case may be, the adult de- fendants, not being insane, shall appear and file their an- swer, plea or demurrer, to the bill or petition, within the time allowed by this article, or by the terms of the order of publication, or special order for the extension of time ; MARYLAND STATUTES AND RULES 1239 and in default of appearance, or of answer, plea or de- murrer, after appearance within the time allowed, the plaintiff may, at his election, obtain an order as of course, that the bill be taken pro confesso as against such de- fendants; and thereupon the cause shall be proceeded with ex parte as against the defendants so in default; and the matter of the bill or petition may be decreed by the Court or Judge thereof at any time after the lapse of thirty days from the date of the order pro confesso, if there be no answer, plea or demurrer interposed, and the allegations of the bill or petition present a proper case for relief. But the Court or Judge thereof may, in all such cases, if it be deemed proper, order that the allega- tions of the bill or petition, or any of them, be supported by affidavit or deposition to be taken as may be directed. (Md. Gen. Eq. Rule 12.) § 1713. Bill — Scandal and impertinence. Every bill or petition shall be expressed in terms as brief and concise as it reasonably can be, and shall contain no unnecessary recitals of documents of any kind, in haec verba, nor any impertinent matter, or matter scandalous and not rel- evant to the suit; and the same rule shall apply to all answers and pleas filed by defendants; and if this rule be violated, the unnecessary or improper matter or aver- ments may be stricken out at the cost of the party in- troducing the same. (Md. Gen. Eq. Eule 13.) § 1714. Introductory part of bill. All bills and peti- tions in the introductory part thereof shall contain the names of all parties, plaintiffs and defendants, by and against whom the suit is brought. The form shall bo substantially as follows: In the Circuit Court for County. A B, Plaintiff, against C D, Defendant, To the Honorable the Judges of said Court: Your orator, complaining, says : 1. That, etc., making each paragraph contain a succinct but a complete statement of fact. (Md. Gen. Eq. Rule 14. ) 1240 EQUITY PRACTICE § 1715. Contents of bill. All bills and petitions shall be divided into paragraphs, as indicated in the preceding section, and be consecutively numbered, and shall con- tain simply a statement of the facts upon which the plain- tiff asks relief, and at his option, the facts which are in- tended to avoid an anticipated defense, and such aver- ments as may be necessary, under the rules of equity pleading, to entitle the plaintiff to relief; and the prayer for relief shall specify particularly the relief desired, and shall also contain the prayer for general relief. And if an injunction, or other writ, or any special order, be required, pending the suit, it shall be specially prayed for; the several subjects of the prayer being formed into distinct paragraphs, and consecutively numbered. The ordinary or formal combination clause, the allegation of the want of remedy at law, and similar formal averments, shall be omitted; nor shall it be necessary to pray that the defendants be required to answer, unless it be desired that they shall answer under oath, or there be special interrogatories appended to the bill to be answered by the defendants, or some of them, in which cases there shall be a prayer that the defendant or defendants be required to answer the bill, or the special interrogatories appended thereto, under oath. (Md. Gen. Eq. Rule 15.) § 1716. Prayer for process or publication. The prayer for process or for order of publication shall contain the names of all the defendants named in the introductory part of the bill or petition, and the place of their resi- dence as far as known ; and if any of said defendants are known to be infants under age, or under any other dis- ability, such facts shall be stated, so that the Court may take order thereon, as justice may require. And if an injunction or other writ, or any special order be asked in the prayer for relief, that shall be sufficient without the pleading of same in the prayer for process. (Md. Gen. Eq. Rule 16.) §1717. Special leave to answer — Answering part of bill. At any time before the bill is taken pro confesso. or afterwards (before final decree), by the special leave of the Court or Judge thereof, the defendant may answer, MARYLAND STATUTES AND RULES 1241 plead or demur to the bill ; and he may plead or demur to the whole bill, or to part thereof, and he may demur to part, plead to part, and answer as to the residue; but in every case in which the bill specially charges fraud, usury or combination, a plea to such part must be accompanied with an answer supporting the plea, and explicitly deny- ing the fraud, usury or combination, and the facts on which the charge is founded. (Md. Gen. Eq. Eule 17.) § 1718. Verification of plea or demurrer — Form of de- murrer. No plea or demurrer shall be allowed to be filed to any bill or petition, unless it be supported by affidavit that it is not intended for delay; and if a plea, that it is true in point of fact. The form of demurrers shall be substantially as follows: "The defendant demurs to the whole bill, " or " to so much of the bill or discovery, or relief, ' ' stating the particular part or parts demurred to, and the special grounds of the demurrer. (Md. Gen. Eq. Rule 18.) § 1719. Setting down demurrer or plea for argument — Taking issue. The plaintiff may set down the demurrer or plea to be argued, or he may take issue on the plea. If, upon an issue, the facts stated in the plea be determined for the defendant, they shall avail him as far as in law and equity they ought to be available, but no further. (Md. Gen. Eq. Eule 19.) § 1720. Defendant setting down plea or demurrer for argument. If the plaintiff shall not reply to any plea filed, or shall not set down any plea or demurrer for ar- gument, within ten days after the same filed, the de- fendant may set it down for argument on five days' no- tice. (Md. Gen. Eq. Rule 20.) § 1721. Amendment where demurrer or plea allowed. If, upon the hearing, any demurrer or plea shall be al- lowed, the Court may, in its discretion, upon motion of the plaintiff allow him to amend his bill upon such terms as it shall deem to be reasonable. (Md. Gen. Eq. Eule 21.) § 1722. Answer after demurrer or plea overruled — De- cree pro confesso. If, upon the hearing, any demurrer or plea is overruled, unless the Court or Judge thereof hear- ing the same be satisfied that it was intended for vexa- 1242 EQUITY PRACTICE tion and delay, the defendant shall be required to answer the bill, or so much thereof as may be covered by the plea of demurrer, at such time as, consistently with justice and the rights of the defendant, the same can be reason- ably done; in default whereof, the bill shall be taken, as against him, pro confesso, and the matter thereof pro- ceeded in and decreed accordingly; and such decree shall also be made when the Court or Judge thereof shall be satisfied that the plea or demurrer was interposed for vexation or delay merely, and is frivolous or unfounded. (Md. Gen. Eq. Eule 22.) § 1723. Answer. The defendant shall make answer to all the material allegations of the bill, except as herein- after provided; and the answer shall be divided into paragraphs, numbered, consecutively, each paragraph containing, as near as may be, a separate and distinct averment. The rule, that if the defendant submits to answer, he shall answer fully to all the matters of the bill, shall not apply in cases where he might, by plea or de- murrer, protect himself from such answer and discovery. And the defendant shall be entitled in all cases, by an- swer, to insist upon all matters of defense- in law or equity, to the merits of the bill, of which he may be entitled to avail himself by a demurrer, or plea in bar; and in such answer he shall not be compellable to answer any other matters than he would be compellable to answer and dis- cover, upon filing a demurrer or plea in bar, and an an- swer in support of such plea, touching the matters set forth in the bill to avoid or repel the bar or defense. Thus, for example, a bona fide purchaser, for a valuable consideration, without notice, may set up the defense by way of answer, instead of plea, and shall be entitled to the same protection, and shall not be compellable to make any further answer or discovery of his title than he would be required to make in an answer in support of such plea. (Md. Gen. Eq. Eule 23.) § 1724. Special interrogatories to defendant. Special interrogatories to the defendant shall not be incorporated in the bill or petition, but shall be appended thereto; and they shall be divided as conveniently as may be, and MARYLAND STATUTES AND RULES 1243 • numbered consecutively. And if there be more than one defendant, and the interrogatories are not intended to be answered by all, it shall be designated which defendant is required to answer the several interrogatories. And in like manner and form, any defendant shall be entitled to file interrogatories to any of the plaintiffs, after he. shall have put in his answer to the bill; and such inter- rogatories, either to plaintiff or defendant, and the an- swers thereto, shall be deemed part of the pleadings in the cause. Notice by service of copy or otherwise, shall be given to the party required to answer, who shall an- swer within thirty days from the time of service, unless the time, for cause shown, be extended by special order; and answers to such interrogatories may be compelled by attachment. (Md. Gen. Eq. Eule 24.) § 1725. Refusal to answer interrogatories — Exception — Replication. But either plaintiff or defendant shall be at liberty to decline answering any interrogatory, or part of any interrogatory, when he might have protected him- self by demurrer from answering the subject of the in- terrogatory; and he shall be at liberty so to decline, not- withstanding he shall answer other interrogatories, from which he might have protected himself by demurrer; and upon such declination, the plaintiff or defendant may, on three days' notice, set down the matter for hearing before the Court or Judge thereof, as on an exception to the answer for insufficiency, But where the interroga- tories are not fully answered, and no reason is assigned for the omission, the particular objection must be pointed out by exception, to be filed and served at least five days before the hearing of such exception. The plaintiff or defendant shall be at liberty, before answers to the in- terrogatories are filed, or pending exceptions, to file or require a replication, and proceed to take testimony, with- out waiver of his right to such answers, or of his excep- tions to the answers. (Md. Gen. Eq. Eule 25.) § 1726. Cross-bills. Cross-bills for discovery only shall not be allowed, but the defendant shall be at liberty, in- stead thereof, to file interrogatories to the plaintiff, as provided in the preceding section. In other cross-bills, no Whitehouse B. P. Vol. II— 2'3 1244 EQUITY PRACTICE otker reference shall be made to the matters contained in the original bill than shall be necessary, but the same may be treated as if incorporated therein. The rules regulating the form of bills shall apply to cross-bills. If no new parties are introduced, service of a copy of the cross-bill on the solicitor of the plaintiff or plaintiffs in the original bill shall be sufficient. But where other per- sons are made parties, the service or notification shall be the same as provided in respect to notice, or service of process upon defendants in original bills, together with the cross-bill. (Md. Gen. Eq. Eule 26.) § 1727. Answer as evidence. If the plaintiff in his bill shall not require an answer under oath, or shall only re- quire an answer under oath with regard to certain speci- fied interrogatories, the answer of the defendant, though under oath, escept such part thereof as shall be directly responsive to such interrogatories, shall not be evidence in his favor, unless the cause be set down for hearing on bill and answer only; but an answer under oath may, nevertheless, be used as an affidavit, with the same effect as heretofore, on a motion to grant or dissolve an injunc- tion, to appoint or discharge a receiver, or on any other incidental motion in the cause. (Md. Gen. Eq. Eule 27.) § 1728. Replication. • Whenever the answer of the de- fendant shall not be excepted to, or shall be adjudged or deemed sufficient, the plaintiff shall file the general rep- lication thereto within fifteen days thereafter, unless he shall set the cause down for hearing on bill and answer as to said defendant or defendants answering; and in all cases where the general replication is filed, the cause shall be deemed to all intents and purposes at issue, without any rejoinder or other pleading on either side. If the plaintiff shall omit or refuse to file such replication within fifteen days after answer filed, the defendant shall be en- titled to a rule further proceedings within ten days after notice of such rule; and upon failure to comply with such rule, the defendant shall be entitled to have the bill dis- missed. The form of the general replication shall be as follows: "The plaintiff joins issue on the matters al- leged in the answer of C D, so far as the same may be MARYLAND STATUTES AND RULES 1245 taken to deny or avoid the allegations of the bill." (Md. Gen. Eq. Eule 28.) § 1729. Amendment of bill — Leave. No special replica- tion to any answer shall be filed. But if any matter al- leged in the answer shall make it necessary for the plain- tiff to amend his bill, he may obtain leave to amend the same upon application to the Court or Judge thereof, within S'uch time and upon such terms as may be pre- scribed by order. (Md. Gen. Eq. Eule 29.) § 1730. Amendment of bill— Rights of defendant. If the plaintiff, so obtaining any order to amend his bill after answer, or after plea or demurrer thereto, shall not make the amendment within the time allowed, he shall be considered to have abandoned the leave to amend, and the cause shall proceed as if no application for such leave had been made. But where such amendment is made, and new facts are introduced, and the case is thus varied in any material respect, the defendant shall be at liberty to answer anew, or to plead, or demur to the bill as amended, within such time as the Court or Judge thereof may prescribe, after notice of the amendment made; and notice may, in all cases, be given by service of a copy of the bill as amended upon the defendant, or upon his solicitor, if there be one; or it may be by sub- poena. The mode of proceeding in default of answer to the matter of the amendment shall be the same as that in default of answer to the original bill ; and the proceeding on answer, plea or demurrer, filed to the amended bill, shall be the same as that on answer, plea, or demurrer to an original bill. (Md. Gen. Eq. Eule 30.) § 1731. Claim against several — Parties — Cross-bill. In all cases where the plaintiff may have a joint and several claim or demand against several persons, either as prin- cipals or sureties, it shall not be necessary to bring be- fore the Court, as parties to a suit concerning such claim or demand, all the persons liable thereto; but the plain- tiff may proceed against one or more of the persons sev- erally liable; but the defendant may at once proceed by petition in the nature of a cross-bill against such party as is liable jointly with him, and such party shall be per- 1246 EQUITY PRACTICE mitted to make himself a party to the original cause, and defend the same, and the proceedings in the original cause shall, after the service of such petition, be conclu- sive as to such other party, and if he shall appear thereto, the same shall be conducted as if he had been made a party thereto in the first instance. (Md. Gen. Eq. Eule 31.) § 1732. Trustees as parties. In all suits concerning real or personal estate, where the entire estate sought to be affected by the decree or order prayed for, is vested in trustees, under any deed, will, or other instrument, with an immediate and unqualified power of sale, coupled with the right to give receipts, such trustees shall repre- sent the persons beneficially interested under the trust, in the same manner and to the same extent as the execu- tors or administrators in suits concerning personal estate represent the persons beneficially interested in such per- sonal estate; and in such cases it shall not be necessary to make the persons beneficially interested under the trust, parties to the suit. But any party interested may, upon his own application, be allowed to corde in and be made a party to such proceeding, and the Court or Judge thereof may, upon consideration of the matter on the hearing, if it should be deemed proper, order siich per- sons, or any of them, to be made parties. (Md. Gen. Eq. Eule 32.) § 1733. Misjoinder of parties — ^Decree as between par- ties. It shall not be necessary to dismiss the entire bill or petition in any suit, because simply of the misjoinder of parties or the subject-matter of the suit ; but the Court may dismiss the bill or petition, as to such of the parties, plaintiff or defendant, as may be improperly joined, and may dismiss the bill or petition as to such of the subject- matter as may be improperly joined or included therein, so as to relieve the bill or petition of the objection of being multifarious. And the Court may, according to the spe- cial circumstances of the case, to meet the requirements ■ of justice, and to prevent a multiplicity of suits, decree as between the plaintiffs, as if they occupied positions of plaintiff and defendant upon the record, and may so MARYLAND STATUTES AND RULES 1247 decree as between co-defendants to the cause; provided such, decrees shall be founded upon the allegations of the pleading between the plaintiffs and defendants, and have immediate connection with the subject-matter of the suit. (Md. Gen. Eq. Rule 33.) § 1734. Want of parties — Saving rights of absent par- ties. If a defendant shall, at the hearing of the cause, object that the suit is defective for want of parties, not having by plea or answer taken the objection, and therein specified by name or description the parties to whom the objection applies, the Court or Judge thereof, if it be deemed proper, shall be at liberty to make a decree, sav- ing the rights of the absent parties, or may require the plaintiff to bring in such absent party, upon such terms as the Court may prescribe as to costs. (Md. Gen. Eq. Eule 34.) § 1735. Want of parties — Setting down for argument on exception — Adding parties. Where the defendant shall, by his answer, suggest that the bill is defective for want of parties, the plaintiff shall be at liberty within fifteen days after answer filed, to set down the cause for argument upon that objection only; and the clerk, at the instance of the plaintiff, shall make entry thereof in his docket in the following form: "Set down upon the de- fendant's objection for want of parties." And if the plaintiff shall not set down the cause, but shall proceed therewith to a hearing, notwithstanding the objection for want of parties taken by the answer, he shall not, at the hearing of the cause, if the defendant 's objection for want of parties be then allowed, be entitled, as of course, to an order for liberty to amend his bill by adding par- ties; but the .Court or Judge thereof may, if it be thought fit, dismiss the bill. If, however, the cause be set down upon the objection taken, and, upon hearing, the objection be allowed, the plaintiff shall have liberty to amend, upon paying the cost of amendment. (Md. Gen. Eq. Eule 35.) §1736. Commission to take testimony — Examiners — Powers and duties — Fees. Except where testimony is to be taken beyond the limits of the State, or beyond the limits of the County or City for which the Court exer- 1248 EQUITY PKACTICE cises jurisdiction, no commissions to take testimony shall issue. The Circuit Court for each of the Counties, and the Supreme Bench of Baltimore City shall each appoint two or three experienced and competent examiners, who shall, upon qualification, be officers of the Court; and for any special reason, a special examiner may be appointed. These examiners shall have authority to issue subpoenas for witnesses, administer oaths, notify parties of the time of their sittings, and to preserve order and decorum dur- ing their sessions. Any person refusing to obey • sub- poenas issued by such examiners, or who shall be guilty of violating the order and proper decorum of the sessions of said examiners while in discharge of their duties, shall be reported by the examiners, together with the facts of the case, to the Court; and, upon hearing, the Court, if satisfied of the facts as reported, and that the party was guilty of the matter charged, shall punish the party so offending. Such examiners shall be entitled to receive four dollars per day, for each and every day actually employed ; to be paid by the party at whose instance the service may have been rendered. And it shall be the duty of such examiners, in making their returns to the Court, in each case, to certify the time that they have been actually employed, and at whose instance, and the amount taxable to each party for services rendered. (Md. Gen. Eq. Eule 36.) § 1737. Taking testimony before examiners — Com- pelling attendance of witnesses. Whenever any cause is at issue, involving matter of fact, or whenever any evi- dence is required to be taken, to be used in any proceed- ing in equity, it shall be competent to the party desiring to take evidence, by leave of the Court or Judge thereof, to notify one of the regular examiners, or any special examiner, that may be appointed, of such desire, and to furnish him with the titling of the cause and the names ot witnesses to be summoned to testify; and the examiners so applied to shall fix some reasonable day or days for the examination of witnesses, and the taking of evidence, of which he shall give due notice to the parties concerned, or those entitled to receive such notice, as if he were pro- MARYLAND STATUTES AND EULES 1249 ceeding under a commission to take testimony under for- mer practice. He shall issue subpoenas for witnesses for either party, except where he is required to proceed ex 'parte; and he shall cause to come before him all witnesses subpoenaed at the time appointed to be examined; and their attendance and duty to testify may be enforced by attachment, to be issued and returned as provided in sec- tion 268. (Md. Gen. Eq. Eule 37.) § 1738. Examination of witnesses before examiners. All examinations of witnesses before the examiners shall be conducted in the presence of the parties, or their so- licitors, if they think proper to be present ; and the mode of examination shall be either by written interrogatories filed with the examiner, to be by him propounded to the witnesses, and the answers thereto written down by him, as has heretofore been the practice of commissioners in taking testimony; or the witnesses may be examined by the parties, or their solicitors, viva voce; and in such case, the answers of the witnesses shall be reduced to writing by the examiner, and the questions also, if necessary to the understanding of the answers of the witness, or if it be required by either party. The testimony produced by both parties shall be taken before the same examiner, unless, for' special reasons, it be otherwise directed by the Court or Judge thereof; and all viva voce examina- tions shall, as near as may be, be conducted in the man- ner and order of the examination of witnesses in the trials of fact and in the Courts of Common Law. The defendant shall not be compelled to proceed with the taking of his testimony, until the plaintiff has finished, or declared he has none to take ; nor shall the plaintiff be compelled to proceed with the rebutting testimony, until the defendant has completed the testimony on his part. But said questions and answers may be typewritten. (Md. Gen. Eq. Eule 38.) § 1739. Concluding interrogatory by examiner. In all examinations, whether conducted by written interroga- tories or viva voce, at the conclusion of the examination by the parties, the examiner shall put to the witness an interrogatory in the following form: "Do you know, or 1250 EQUITY PRACTICE can you state, any other matter or thing which may be of benefit or advantage to the parties to this cause, or either of them, or that may be material to the subject of this your examination, or the matters in question be- tween the parties? If yea, state the same fully and at large in your answer." And the examiner shall write down the answer to said interrogatory, as part of the deposition of the witness. (Md. Gen. Eq. Rule 39.) § 1740. Taking down testimony before examiner — Signing — Reporting objections — Costs. In all cases the testimony shall be written down in the language of, and as delivered by, the witness, and when completed shall be read over to the witness, and be signed by him in the presence of the parties or their solicitors, or such of them as may attend ; but if the witness, for any cause, may not be able to sign the same, or shall for any reason refuse so to do, the examiner shall sign the deposition, stating the reason why the witness has not signed the same ; and the examiner may, upon all examinations, state any spe- cial matters to the Court that he may deem proper, to enable the Court the better to understand the evidence. Any question or questions that may be objected to by either of the parties, shall be noted by the examiner upon the deposition; but he shall not have power to decide on the competency, materiality or relevancy of any question proposed or evidence elicited, nor as to the competency or privilege of any witness offered. All questions of privilege raised, or demurrer interposed, by any witness, to questions propounded, shall be at once reported by the examiner to the Court or Judge thereof for decision, and the Court or Judge shall hear and determine the same without delay; and in such cases the Court may award cost as justice may appear to require; and in all cases the Court shall have full power to deal with and to direct the payment of the cost of incompetent, imma- terial, or irrelevant evidence, or any part thereof as jus- tice may require, apart from the general cost of the case. (Md. Gen. Eq. Rule 40.) § 1741. Authenticating, closing and filing depositions. So soon as the examination of witnesses before the ex- MARYLAND STATUTES AND RULES 1251 aminer shall be completed, the original depositions, with all vouchers, documents, or other papers filed with the examiner as evidence, shall be put together in proper order and form, so as to be convenient for reference and use, and be authenticated by certificate and signature of the examiner, and by him enclosed, with the titling of the cause endorsed thereon, and filed with the Clerk of the Court, without delay. (Md. Gen. Eq. Rule 41.) §1742. Delay in taking testimony. Testimony shall be taken without any unnecessary delay, and it shall be the duty of the examiner to avoid such delay as far as possible. After the lapse of a reasonable time for the taking of testimony, either party may obtain a rule on the adverse party to close the taking of his testimony within such reasonable time after notice of such rule as may be deemed proper; and any testimony taken after the lapse of that time shall not be read in evidence at the hearing of the cause. But it shall be in the discretion of the Court to enlarge the time, on application of the party against whom such rule may have been obtained, upon sufficient cause shown. (Md. Gen. Eq. Rule 42.) § 1743. Opening depositions. Evidence taken and re- turned shall be opened by the Clerk, and shall remain in Court ten days, subject to exception, before the cause shall be taken up for hearing, unless, by agreement of the parties, such time be waived; but after the expira- tion of that time the cause shall stand for hearing, unless some sufficient cause be shown to the contrary. This sec- tion not to apply to interlocutory applications. (Md. Gen. Eq. Rule 43.) § 1744. Examination of witnesses de bene esse. The examination of witnesses de bene esse, or for the per- petuation of their testimony, when by law allowed, may be had before an examiner, in the mode and form as pre- scribed in sections 254, 255, 256 and 257; and if no good objection be made to such testimony in twelve months from the time of the return to court thereof, the Court shall order the same to be recorded in perpetual mem- ory. (Md. Gen. Eq. Rule 44.) §1745. Oral examination of witnesses — Taking down 1252 EQUITY PRACTICE evidence. The Court shall, on application of a party in interest, or may, of its own motion, order, that instead of the mode of taking testimony as provided in the fore- going sections, the witnesses, or any of them, shall be examined orally in open Court in the presence of the Judge or Judges thereof, as to all or any of the facts or matters relevant in the cause or proceeding, and the evi- dence so taken shall be written down as delivered by the witnesses by such person, and in such manner as the Court may have by special order or general rule directed, and when so written down, shall, with such documentary proof as shall have been with it offered and admitted, be filed as part of the proceedings, to be used as if taken before an examiner; or if the Court shall have so ordered, such evidence shall be reduced to writing by counsel in the same manner as bills of exception now are at common law, and after the same shall have been signed by the judge or judges before whom the testi- mony was taken, shall, with the documentary proof at the same time offered and admitted, be filed as part of the proceedings to be used as if taken before an examiner. (Md. Gen. Eq. Eule 45.) * § 1746. Interlocutory applications — Taking testimony. Upon any petition, motion, or other interlocutory appli- cation, for the hearing and determination of which evi- dence may be required, the Court or Judge thereof may order testimony to be taken before an examiner, or be- fore a Justice of the Peace, upon such notice, and in such manner as the Court or Judge may think proper to direct, to be used at the hearing of such matter. (Md. Gen. Eq. Eule 46.) §1747. Special case stated — Entitling — Docketing. Any person interested, or claiming to be interested, in any question cognizable by a Court of Equity, as to the con- struction of any statute, deed, will, or other instrument of writing, or as to any other matter falling within the original jurisdiction of such Court, or made subject to the jurisdiction thereof by statute, may state and raise such question before the Court in the form of a special * See Ann. Code 1911, Art. 16, Sees. 261 et seq., as amended, 1914, ante, pp. 1228 et seq. MARYLAND STATUTES AND RULES 1253 case stated, instead of formal pleading. Every such spe- cial case stated shall be entitled as a cause between some one or more of the parties interested, or claiming to be in- terested, as plaintiff or plaintiffs, and the others of them as defendants; and such special case shall be regularly- docketed as a cause pending in said Court, and shall be in all respects, and for all purposes, treated and regarded as a pending cause, as if regularly instituted by formal pleading. (Md. Gen. Eq. Rule 47.) § 1748. Special case stated — Form — Hearing — Decree. Such special case shall concisely state such facts and documents as may be necessary to enable the Court to decide the question intended to be raised, and it shall be divided into paragraphs, consecutively numbered ; and upon the hearing of such case, the Court and the parties shall be at liberty to refer to the whole contents of such documents, and the Court shall be at liberty to draw from the facts and documents stated and referred to in such special case, any inference which the Court might have drawn therefrom, if such facts and documents were proved under formal pleading. And upon such special case stated, the Court may decree as upon bill and an- swer, and such decree shall be enforced as other decrees are; but such decree shall in no case conclude or affect the rights of any other persons than those who are parties to such special case, and those claiming under or through such parties; and the right of appeal shall exist as in cases of decrees upon bill and answer. (Md. Gen. Eq. Rule 48.) § 1749. Special case stated — Persons under disability as parties. Married women may join in any special case stated with their husbands, and infants having guar- dians, and lunatics having committees, may join in such special case by their guardians or committees, in respect to any interest or Tight represented by such guardians or committees; and all the parties to such special case shall sign the same in person or by solicitor, and the ap- pearance of the parties shall be entered to said case, as to a cause regularly instituted by formal proceedings; and all the parties to such special case shall be subject 1254 EQUITY PRACTICE to the jurisdiction of the Court in the same manner as if the plaintiff in the special case had filed a bill against the parties named as defendants thereto, and such de- fendants had appeared to such bill, and by answer ad- mitted the facts thereof. (Md. Gen. Eq. Eule 49.) § 1750. Enrolment of orders and decrees. All final de- crees, and orders in the nature of final decrees, shall be considered as enrolled from and after the expiration of thirty days from the date of the same, the day of the date inclusive. (Md. Gen. Eq. Eule 50.) § 1751. Correction of clerical errors in orders and de- crees. Clerical mistakes in decrees or decretal orders, or errors arising from any accidental slip or omission, may, at any time before the enrolment of such decrees or orders, be corrected by order of the Court or Judge thereof upon petition, without the form or expense of a rehearing. (Md. Gen. Eq. Eule 51.) § 1752. Rehearing — Petition — Signing- and verifying — Time for granting — Effect. Every petition for rehearing shall contain the special matter or cause on which such rehearing is applied for, and shall be signed by solicitor or the petitioner himself, and the facts therein stated if not apparent on the record, shall be verified by the oath of the party, or by some other person. No rehear- ing shall be granted after the enrolment of the decree or decretal order; and if the decree or order has been executed, parties who have acted on the faith of such decree or order shall not be prejudiced by such decree or order being reversed or varied. (Md, Gen. Eq. Eule 52.) § 1753. Reference to auditor. Whenever a reference of any matter is made to the auditor for examination and report thereof, or for the statement of an account, the party at whose instance the reference is made, shall, with- in a reasonable time, and without any unnecessary de- lay, cause the matter of reference to be laid before the auditor for his action; and if such party shall omit to do so, any other party interested in the subject-matter of the reference shall be at liberty to cause the matter to be laid before the auditor, who shall proceed therein without delay. (Md. Gen. Eq. Eule 53.) MARYLAND STATUTES AND RULES 1255 § 1754. Hearing before auditor — Adjournment. Upon every such reference it shall be the duty of the auditor, as soon as he reasonably can, after the matter of the ref- erence is brought before him, if evidence is to be pro- duced, or vouchers filed, to assign a time and place for proceeding in the matter, and to give such notice there- of to the parties or their solicitors; and if either party shall fail to attend at the time and place appointed the auditor shall be at liberty to proceed in the absence of such party, or, in his discretion, to adjourn the examina- tion and proceedings to a future day, giving notice there- of to the parties or their solicitors, but noting all the' cost that may attend such adjournment, which shall be subject to the order and direction of the Court. It shall be the duty of the auditor to proceed with all reasonable diligence in every such reference, and with the least prac- ticable delay ; and either party shall be at liberty to apply to the Court or Judge thereof for an order to the auditor to speed the proceedings before him, and to make his report, and to certify to the Court the reasons for any delay that may have occurred. (Md. Gen. Eq. Eule 54.) § 1755. Examination of witnesses and parties by au- ditor — Compelling production of papers. The auditor shall regulate all the proceedings in every hearing or examination before him ; and in addition to his right and power to examine the parties to the cause, and all wit- nesses produced by them, or which they may cause to be summoned, on oath or affirmation touching the mat- ters of the reference, he shall also have power and au- thority to require the production of all books, papers, writings, vouchers and other documents applicable there- to, where, by the principles and practice of Courts of Equity, the production of such writings may be com- pelled; and if any party so liable to produce such books, papers, writings, vouchers or other documents, shall fail or refuse so to do, when required by the auditor, such party shall, without delay, be reported to the Court by the auditor, with the facts of the case, that the proper proceeding may be taken thereon, by way of attachment or otherwise, as justice and the settled practice may re- quire. (Md. Gen. Eq. Eule 55.) 1256 EQUITY PRACTICE § 1756. Production of accounts — Examination of per- son offering. All parties accounting before the auditor shall produce their respective accounts in the form of debtor and creditor, and any of the other parties inter- ested, who shall not be satisfied with the account so pro- duced, shall be at liberty to examine the accounting party, viva voce, or upon written interrogatories, before the auditor, who shall write down and report the testimony, if required. And in all cases where the auditor may be required to take testimony to be reported to the Court, he shall observe and pursue the same mode and form of examination, and writing down the testimony, as that prescribed to be observed by examiners. (Md.'Gen. Eq. Rule 56.) § 1757. Rules. The foregoing rules shall be in force from and after the first day of September, A. D. 1883, and shall be taken to regulate all cases and procedure to which they are applicable; and all other cases and pro- cedure not therein provided for shall remain to be reg- ulated and governed by the existing statute law of the State, and by the general rules and principles of equity pleading and practice, as heretofore existing, so far as the same may not be changed or modified by the adop- tion of the foregoing rules. But nothing in the foregoing rules shall, in any manner, be taken or construed to pre- vent or restrict the several circuit Courts, as Courts of Equity, from making and enforcing, from time to time, such general rules and orders as they may deem proper for the good government and regulation of their re- spective Courts and the proceedings thereof, and the offi- cers and suitors therein; provided that such rules and orders be not inconsistent with the foregoing rules, or the statutes of this State. (Md. Gen. Eq. Rule 57.) RULES RELATING TO APPEALS IN COURTS OF EQUITY § 1758. Time for taking and entering. All appeals al- lowed from decrees or orders of Courts of Equity shall be taken and entered within two months from the date of the decree or order appealed from, and not after- MARYLAND STATUTES AND RULES 1257 wards; -unless it shall be alleged on oath that such de- cree or order was obtained by fraud or mistake, in which case the appeal shall be entered within two months from the time of the discovery of the fraud or mistake, and not afterwards. (Md. Eq. App., Eule 1.) § 1759. Transcript. All transcripts of records, on ap- peals from Courts of Equity shall be made and trans- mitted to the Court of Appeals within three months from the time of the appeal prayed; but on appeals taken as provided by See. 31 of Art. 5, of the Code of Public Gen- eral Laws, the transcript of the record shall be made and transmitted to the Court of Appeals forthwith after the appeal prayed. (Md. Eq. App., Eule 2.) §1760. Contents of transcript. In making up the transcript of the record of Equity proceedings to be transmitted to the Court of Appeals, it shall be the duty of the clerk of the Court from which the appeal may be taken, to omit therefrom the formal heading and com- mencement of the record, stating only the titling of the cause and the time of the commencement of the proceed- ing; he shall omit all subpoenas and other process for appearance of parties if parties have appeared ; all orders and certificates of publication stating in lieu thereof the date of such order, the period of publication required, how published, and the time fixed for appearance of parties thereunder; all commissions to appoint guardians and others to take testimony, and the formal returns thereto, stating in lieu thereof the fact and time of issu- ing such commissions, and passing such orders and the time of the return of such testimony; all entries of con- tinuances; all injunction bonds, receivers' bonds, trus- tees' bonds, appeal bonds, and affidavits filed on appeal; all proceedings in the cause subsequent to the decree or order appealed from; and all merely collateral proceed- ings not in any wise involved in the matter of appeal, and which cannot be material to the hearing and decision of the case by the Court of Appeals; any party to the ap- peal, however, shall have the right to direct any par- ticular part of the proceedings of the cause, that would otherwise be omitted, to be incorporated in the tran- 1258 EQUITY PRACTICE script, the clerk stating at whose instance the same is inserted, that costs may be awarded, as the matter so directed to be incorporated may be deemed material or not by the Court of Appeals. (Md. Eq. App., Rule 3.) § 1761. Incorporation of documentary evidence in tran- script. Whenever deeds, records or other documentary evidence are used in any equity cause, the purport and substance only of such deeds, records or other instru- ments shall be stated, and they shall not be set out in full in any case, except where some question arises upon the construction or validity thereof, and transcripts of records in equity causes shall be prepared in accordance with this rule. Any party to the appeal, however, shall have the right to direct any or all of such documentary proof to be inserted at length, the clerk stating at whose instance the same is so inserted that costs may be awarded as the matter so incorporated may be deemed proper or not to have been set out in full, by the Appellate Court. (Md. Eq. App., Eule 4.) § 1762. Transmitting transcript — Docketing case. Upon any appeal being taken in a Court of Law or Equity, or application to take up the record as upon Writ of Error allowed, the clerk of such Court shall make out, and transmit to the Court of Appeals, a transcript of the record of proceedings, under the seal of his office, in ac- cordance with the foregoing rules, and within the time therein prescribed, and upon the receipt of such tran- script, the clerk of the Court of Appeals shall enter the case upon his docket as of the term next after the receipt of such transcript, unless required to be placed upon the docket of the term during which it is received by the rules of this Court or some statute. (Md. Eq. App., Eule 5.) § 1763. Failure to transmit transcript in time. No ap- peal shall be dismissed because the transcript shall not have been transmitted within the time prescribed, if it shall appear to the Court of Appeals that such delay was occasioned by the neglect, omission or inability of the clerk or appellee; but such neglect, omission or in- MARYLAND STATUTES AND RULES 1259 ability shall not be presumed, but must be shown by the appellant. (Md. Eq. App., Rule 6.) § 1764. Cross-appeals or more than one appeal — Tran- script — Costs. In all cases of cross-appeals or of more than one appeal being entered in the same case from any judgment, decree or order, there shall be but one tran- script of the record transmitted to the Court of Appeals, and that shall be used upon the hearing of all such ap- peals. In cases arising under this rule, the Appellate Court shall have power to award costs, including the cost of transmitting the record, to either of the parties in its discretion, or the costs may be apportioned as the said Court may deem just. (Md. Eq. App., Eule 7.) § 1765. Transcript on second appeal. Whenever a case has before been in the Court of Appeals, there shall be copied into the transcript, upon any subsequent appeal, only the proceedings occurring in the Court below subse- quent to the former appeal. (Md. Eq. App., Eule 8.) § 1766. Writ of diminution. In all cases where a writ of diminution shall be issued, the clerk of the inferior Court, to which the writ may be sent, shall, in his re- turn thereto, transmit to the Court of Appeals only so much of the proceedings remaining of record in the in- ferior Court as may be necessary to correct the alleged errors or defect in the transcript first sent to the Court of Appeals. (Md. Eq. App., Eule 9.) § 1767. Making up transcript — Printing — Cost. All ap- peals shall be brought into this Court by transcripts of the records of the Courts below, as contemplated by the Constitution, and shall be made up as directed by the Eules of this Court and by statute. Before the clerk shall be required to have any transcript in any civil case printed, the appellant or appellants shall, upon being in- formed of the amount of the cost, pay or secure to be paid to the clerk the amount of such cost, so that the clerk shall not be required to pay out money for print- ing and incur the risk of loss in not being able to col- lect the cost from the parties from whom it may be due, after the work is done. And if there be cross-appeals, or more than one appeal, embraced in one transcript, the Whitehouse E. P. Vol. II — 24 1260 EQUITY PRACTICE cost shall be duly apportioned; and no appeal shall be considered as ready for hearing until this rule shall be complied with by the appellant or appellants. But noth- ing herein contained shall be taken to prevent the ap- pellee from having the appeal dismissed, or the judg- ment, order or decree affirmed, under rule of Court, for failure on the part of the appellant to have the appeal ready for argument. (Md. Eq. App., Rule 10.) §1768, Appeals from pro forma orders, decrees or judgments. This Court will not entertain or consider any appeal taken from a pro forma order, decree or judgment, but will treat every such appeal as prematurely taken, and will dismiss the same whenever it appears on the face of the record, or otherwise, that the appeal is from such pro forma order, decree or judgment. (Md. Eq. App., Eule 11.) CHAPTER XXXVI MASSACHUSETTS STATUTES * § 1769. Courts having equity jurisdiction. Section 1. The supreme judicial court and the superior court shall have original and concurrent jurisdiction in equity of all cases and matters of equity which are cognizable under the general principles of equity jurisprudence and, with reference thereto, shall be courts of general equity juris- diction. (Mass. E.L. 1902, c. 159.) § 1770. Issuance of writs and process. Sec. 4. Each court may, if it is necessary to secure justice and equity, issue to courts of inferior jurisdiction, corporations and persons all general and special writs and processes re- quired in proceedings in equity. (Mass. E. L. 1902, c. 159.) § 1771. Venue. Sec. 5. Suits in equity in said courts may be brought in any county in which a transitory action between the same parties might be brought, as well as in counties in which it is elsewhere provided that such suits may be brought. (Mass. E. L. 1902, c. 159.) §1772. Adequate remedy at law. Sec. 6. No suit in equity in said courts shall be defeated on the grouAd that there is an adequate remedy at law, nor shall any action at law be defeated on the ground that the relief sought can be obtained only by a suit in equity, but such pro- ceedings shall, at any time before a final judgment or de- cree, be amendable at the discretion of the court upon terms. (Mass. E. L. 1902, c. 159.) *Eevisea Laws, 1902, as amended by Acts of 1903 to 1914, inclusive. Corrected to January 1, 1915. 1261 1262 EQUITY PRACTICE § 1773. Procedure — Process — Rules. Sec. 7. Procedure, process and practice in equity causes in the superior court shall, as nearly as may be, conform to that of the su- preme judicial court, the general rules of which for the regulation of practice in equity shall, so far as applic- able and except as hereinafter provided, be the rules of the superior court for the regulation of practice in equity. (Mass. E. L. 1902, c. 159.) § 1774. Commencement of suit — Summons — Attach- ment — Trustee process — Entry of writ. Sec. 8. Suits in equity may be commenced by bill or petition, with a writ of subpoena according to the usual course of pro- ceedings in equity, or by an original writ of summons or of summons and attachment or by the trustee process, as the case may be, with or without an order for the at- tachment of the property or arrest of the defendant, and shall be returnable on the return days prescribed by section twenty-four of chapter one hundred and sixty- seven or on the rule days established by the court. When a suit in equity is commenced by an original writ as provided in this section, such writ, with the bill or peti- tion attached thereto, may at any time after service there- of, before the return day, be entered in the court to which it is returnable, and thereupon the court may make such orders as to attachment, arrest, and injunction or for discharging from arrest or for dissolving an attach- ment or injunction, or such other orders as the court would have had power to make if the suit had been com- menced by bill or petition. (Mass. E. L. 1902, c. 159, as amended by Acts 1909, c. 183, Sec. 8.) § 1775. Insertion of bill or petition in summons. Sec. 9. If a suit in equity is commenced by bill or petition in- serted in an original writ of summons or of summons and attachment, or in a writ of trustee process, or by a declaration in an action of contract or tort, the bill, peti- tion or declaration need not be inserted in the separate summons, in the copy of the original writ to be served on the defendant nor in the copy of the writ to be de- posited or left with or in the office of a register of deeds MASSACHUSETTS STATUTES AND EULES 1263 or officer of a corporation or other person, for the pur- pose of making an attachment. (Mass. R. L. 1902, c. 159.) § 1776. Construction of wills — Notice of petition — Service — Publication. Sec. 10. Upon petitions for the construction of wills, or for instruction relative to wills, the court, instead of the notice now required by law, may order notice of the petition and of the time and place for hearing to be served on such number of the parties in interest representing all possible interests as the court shall direct, and to be published for three weeks succes- sively in such newspaper as it directs. If it appears that any possible interest is not represented, further service may be ordered until all possible interests are represented before the court or until a guardian ad litem has been appointed. If all possible interests are represented by persons before the court, it shall not be necessary to make other persons having similar interests parties de- fendant. (Mass. E. L. 1902, c; 159.) § 1777. Docket — Return of process. Sec. 11. Suits in equity in the superior court shall be entered on the same docket as other cases, except in the counties of Suffolk, Middlesex and Essex, where they shall be entered upon a separate equity docket. All processes shall be return- able at the return day occurring next after fourteen days from the date of the process, if required to be served fourteen days before the return day, or at the return day occurring next after thirty days from such date if required to be served thirty days before the return day, or at any rule day within three months after the date of the process. (Mass. R. L. 1902, c. 159, as amended by Acts 1905, c. 107.) § 1778. Bill — ^Contents — Address — Introductory part — Prayer for discovery. Sec. 12. The material facts and circumstances which are relied on by the plaintiff shall be stated with brevity, and immaterial and irrelevant matters shall be omitted. The bill, unless actually in- serted in a writ, shall be entitled in the proper court, with the full title of the cause containing the names and descriptions of all the parties. It shall not be required to contain any address to the court, or the usual com- 1264 EQUITY PRACTICE mencement, or any prayer for an answer, for general relief or for process. Discovery may be sought by in serting a prayer therefor in the bill, petition or declara- tion, or by interrogatories. (Mass. E. L. 1902, c. 159.) § 1779. Demurrer or plea — Answer. Sec. 13. A defence to a suit in equity shall be made by demurrer, plea or answer. A demurrer or plea need not contain a protesta- tion or concluding prayer; but a demurrer shall be ac- companied by a certificate that it is not intended for de- lay. An answer, except to a bill for discovery only, shall not be made under oath or under seal, and it need not contain any saving of exceptions to the bill, or a prayer to be dismissed or for costs. Answers to interrogatories in a bill for discovery shall be made within such tinle as the court orders, and questions arising thereon shall be determined by the rules applicable to bills for dis- covery. (Mass. E. L. 1902, c. 159.) § 1780. Signature to pleadings. Sec. 14. Bills, answers, petitions and other pleadings may be signed by the party or his attorney, and shall not require any other sig- nature. (Mass. E. L. 1902, c. 159.) § 1781. Hearing and determination by one justice. Sec. 17. Suits in equity, and motions and other applica- tions therein, whether interlocutory or final, shall in the first instance be heard and determined by one justice of the court. (Mass. E. L. 1902, c. 159.) § 1782. Court always open — Rule days. Sec. 18. For hearings, and for making, entering and modifying orders and decrees in equity causes, by one justice, and for issuing writs in such causes, the courts shall always be open in every county, except on legal holidays; and all such proceedings shall be considered as taking place in court and not in chambers. The supreme judicial court shall establish rule days for the transaction of business pertaining to jurisdiction in equity. (Mass. E. L. 1902, c. 159.) § 1783. Appeal from final decree. Sec. 19. A party who is aggrieved by a final decree of a justice of the supreme judicial court or a final decree of the superior court may,, within twenty days after the entry thereof, MASSACHUSETTS STATUTES AND RULES 1265 appeal therefrom. An appeal from a final decree of a justice of the supreme judicial court shall be entered on the docket of that court, and an appeal from a final de- cree of the superior court shall forthwith be entered in the supreme judicial court. The copies and papers in the cause shall be prepared by the clerk of the court and transmitted to the supreme judicial court and entered on the docket of the full court. When such appeals have been entered as aforesaid, all proceedings under such decree shall be stayed, and the cause shall thereupon be pending before the full court, which shall hear and determine the same, and affirm, reverse or modify the de- cree appealed from. Upon the reversal of a final decree, the court may remand the cause to a justice of the su- preme judicial court or to the superior court, with such directions as are necessary and proper further to pro- ceed therein, or the court may refer it to a master or take such other order relative to future proceedings therein as equity and the just and speedy determination of the case require. (Mass. E. L. 1902, c. 159, as amended by Acts 1911, c. 284.) § 1784. Docketing appeal. Sec. 20. The clerk of the court for the commonwealth shall enter appeals in equity and probate matters on a separate equity and probate docket. (Mass. E. L. 1902, c. 159.) § 1785. Appeal — Receiver — Injunction — Prohibition. Sec. 21. Upon an appeal from a final decree, the justice of either court by whom it was made may make such orders for the appointment of receivers, and of injunction or prohibition, or for continuing the same in force, as are needful for the protection of the rights of parties, until the appeal shall be heard by the full court; sub- ject, however, to be modified or annulled by the order of the full court upon motion, after the appeal is taken. (Mass. E. L. 1902, c. 159.) § 1786. Suspension of execution of decree pending ap- peal. Sec. 22. After an appeal has been taken from a decree of the superior court, the full court may, by an order, on terms or otherwise, suspend the execution or operation of the decree appealed from, pending the ap- 1266 EQUITY PRACTICE peal, and may modify or annul any order made for the protection of the rights of the parties pending the ap- peal ; but, until such order has been modified or annulled, the justice of the superior court by whom the order or decree appealed from was made, or any other justice of said court, may make any proper interlocutory orders, pending such appeal, including orders for the appoint- ment of receivers, of injunction, of prohibition, and orders for continuing in force such orders previously made, or for modifying or dissolving them. The justice who makes any such interlocutory orders may enforce them by ap- propriate proceedings, pending the appeal. (Mass. R. L..1902, c. 159.) § 1787. Justice to report facts on appeal. Sec. 23. Upon an appeal from a decree of either court, the justice by whom the decree was made shall report the material facts found by him, if so requested by the appellant with- in four days after the appellant has been notified of the entry of the decree ; otherwise, such report shall be in the discretion of the justice. (Mass. E. L. 1902, c. 159.) § 1788. Appeal — Reporting evidence — Additional evi- dence. Sec. 24. Upon an appeal, the testimony of wit- nesses who have been examined orally before a justice of either court shall, at the request of any party made before any evidence is offered, be reported to the full court. The courts shall provide by general rules for some convenient and effectual means of having the same re- ported by the justice by whom the case is heard or by a person designated by him for that purpose. No oral evi- dence shall be exhibited to the full court, but the cause shall be heard on appeal upon the same evidence as on the original hearing. In cases of accident or mistake, the full court may grant leave to parties to exhibit fur- ther evidence, and may provide by general rules or spe- cial order for the conditions under and modes by which such evidence shall be taken. (Mass. R. L. 1902, c. 159.) § 1789. Appeal from interlocutory decree. Sec. 25. A party who is aggrieved by an interlocutory decree of a justice of either court may, in like manner, appeal to the full court ; but the appeal shall not suspend the execu- MASSACHUSETTS STATUTES AND RULES 1267 tion of such decree, except as provided in section twenty- two, nor transfer to the full court the entire cause or any matter therein except the question whether the inter- locutory decree appealed from shall be affirmed, re- versed or modified. (Mass. E. L. 1902, c. 159.) § 1790. Revision of interlocutory decree on appeal from final decree. Sec. 26. Interlocutory decrees which are not appealed from shall be open to revision upon ap- peals from final decrees, so far only as it appears to the full court that such final decrees are erroneously afi'ected thereby. (Mass. E. L. 1902, c. 159.) § 1791. Staying operation of interlocutory decree. Sec. 27. If, upon making an interlocutory decree or order, the justice is of opinion that it so affects the merits of the controversy that the matter ought, before further proceedings, to be determined by the full court, he may report the question for that purpose, and stay all further proceedings except such as are nfecessary to preserve the rights of the parties. (Mass. E. L. 1902, c. 159.) § 1792. Failure to appeal in time — Granting leave. Sec. 28. A party who has by accident or mistake omitted to claim an appeal from a final decree within the time prescribed therefor may, within one year after the entry of the decree from which he desires to appeal, petition the full court for leave to appeal, which may be granted upon terms. (Mass. E. L. 1902, c. 159.) § 1793. Justice reserving and reporting evidence and questions of law. Sec. 29. A justice of either court by whom a case is heard for final decree may reserve and report the evidence and all questions of law therein for- the consideration of the full court; and thereupon like proceedings shall be had as upon appeals from final de- crees. (Mass. E. L. 1902, c. 159.) § 1794. Defendant removing suit to supreme judicial court — Powers of superior court. Sec. 30. If the defend- ant in a suit in equity in the superior court, or a person in his behalf, within ten days after the day for appear- ance, makes affidavit of his belief that the matter in- volved in the suit equals four thousand dollars in value, that his interest alone or with the interest of any other 1268 EQUITY PRACTICE defendant having a joint or common interest with him equals said value and that he has a substantial defence, and of his intention to bring the cause to a hearing, the case, with the papers therein shall, upon his request and at his expense, be forthwith removed to the supreme judicial court where it shall proceed as if originally commenced therein. Before such removal, the superior court may make such orders for the appointment of re- ceivers, and of injunction or prohibition, or for continu- ing the same in force, as are necessary for the protec- tion of the rights of the parties until the case shall be heard by the supreme judicial court; subject, however, to be modified or annulled by the order of that court upon motion after the case has been removed. (Mass. E. L. 1902, c. 159, as amended by Acts 1911, c. 284.) § 1795. Justice ordering suit removed to supreme judi- cial court. Sec. 31. A justice of the supreme judicial court may, if upon motion it appears that a suit in equity pending in the superior court ought to be heard with a suit or cross suit in equity pending in the supreme judicial court, order the suit to be removed at the ex- pense of the applicant from the superior court to the supreme judicial court, where it shall proceed as if orig- inally commenced therein. (Mass. E. L. 1902, c. 159.) § 1796. Dissolution of injunction issued by another court. Sec. 32. A justice of either of said courts shall not dissolve an injunction which has been issued by the other- court, or by a justice thereof, or interpose in any proceeding in the equity jurisdiction of the other court, except as provided in sections twenty-two, thirty and thirty-one. (Mass. E. L. 1902, c. 159.) § 1797. Dating entry of order or decree. Sec. 33. Every order and decree shall bear date of the day when it is actually entered by the clerk, and, at the time of the entry, he shall note such date upon the order or decree and upon the docket. (Mass. E. L. 1902, c. 159.) §1798. Execution of final decree — tissue of process. Sec. 34. No process for the execution of a final decree of either court shall issue until the expiration of twenty days after the entry thereof, unless all parties against MASSACHUSETTS STATUTES AND RULES 1269 whom such decree is made waive an appeal by a writing filed with the clerk or by causing an entry thereof to be made on the docket; provided, however, that if the jus- tice by whom or by whose order the final decree was made is of opinion that the appeal from such decree is groundless and intended merely for delay, process for the execution of the decree may be awarded notwith- standing the appeal. (Mass. R. L. 1902, c. 159, as amended by Acts 1911, c. 284.) § 1799. Justice hearing cases pending in another county. Sec. 35. A justice of either court or the full court may, if necessary, hear and determine cases pend- ing in a county other than that in which such justice or court is sitting, or any motion therein; but a motion shall not be so heard nor a decree or order so made until reasonable notice thereof has been given to the adverse party or his counsel; and either party may transmit his reasons in writing for or against the application to the court or justice, who shall examine the same and pro- ceed thereon as if the parties were present. All orders and decrees made on such hearings shall be transmitted to the clerk in the proper county, and be entered by him. (Mass. E. L. 1902, c. 159.) § 1800. Trial of issues of fact — Supreme judicial court framing issues. Sec. 36. The supreme judicial court, upon request of a party to an equity cause pending there- in, may, in its discretion, frame issues of fact to be tried by a jury and order the same to be tried in that court or in the superior court in the county in which such cause is pending, or upon the request of all parties in any other county. (Mass. E. L. 1902, c. 159.) § 1801. Summoning jury for trial of issues of fact — Trial. Sec. 37. If there is no regular sitting of the su- preme judicial court within three months after the fram- ing of such issues, a justice thereof may order the clerk of the courts for the county in which the cause is pending to summon a jury to try such issues, and the proceedings at such trial shall be in all respects the same as in a trial at a regular sitting. (Mass. E. L. 1902, c. 159.) § 1802. Trial of issues of fact — Superior court framing 1270 EQUITY PRACTICE issues. Sec. 38. The superior court may, upon request of a party to an equity cause pending therein, frame issues of fact to be tried by a jury and order them to be tried in the county in which such cause is pending. (Mass. E. L. 1902, c. 159.) § 1803. Writs of seisin and execution. Sec. 39. The courts may issue writs of seisin and execution in common form if such process is appropriate for the enforcement of a decree in equity. (Mass. R. L. 1902, c. 159.) § 1804. Justices sitting in Boston. Sec. 40. A justice of the supreme judicial court and a justice of the superior court shall, at all convenient times, sit in Boston for the purpose of hearing and determining suits in equity arising in any county. (Mass. E. L. 1902, c. 159.) § 1805. Justice sitting in Springfield. Sec. 41. A jus- tice of the supreme judicial court shall sit at Springfield, on the first Monday of February, June, August and De- cember, for the purpose of hearing such matters in equity as may be heard and determined at chambers, which arise in the counties of Berkshire, Franklin, Hampshire and Hampden. (Mass. E. L. 1902, c. 159.) §1806. Removal of papers from files. Sec. 42. The original papers in a suit in equity pending in either court may be taken from the files in any county by the coun- sel of record of either party, for use before the court, upon leaving a memorandum and receipt on such files, containing a short description of the papers so taken. (Mass. E. L. 1902, c. 159.) Seevice of Pbocess § 1807. Service of summons or subpoena. Sec. 37. A writ of original summons or subpoena issued in a suit in equity shall be served the same number of days be- fore the return day and in the same manner as an original writ in an action at law in the same court. (Mass. E. L. 1902, c. 167.) Taking Evidence § 1808. Procedure as at law. Sec. 69. The evidence shall be taken in proceedings in equity in the same man- MASSACHUSETTS STATUTES AND RULES 1271 ner as in actions at law, unless the court otherwise orders ; but the provisions of this section shall not prevent such use of affidavits as has been heretofore allowed. (Mass. R. L. 1902, c. 175.) Inteeeogatoeibs § 1809. When allowed for discovery. Section 1. Any party, after the entry of an action at law or the filing of a bill in equity, may interrogate an adverse party for the discovery of facts and documents admissible in evidence at the trial of the case. The word "party" shall be deemed to include parties intervening or otherwise ad- mitted after the beginning of the suit. (Mass. Acts 1913, c. 815.) § 1810. Answers. Sec. 2. The answers shall be in writ- ing, under oath, and shall be signed by the party inter- rogated. The party interrogated shall, before making answer, make such inquiry of his agents, servants and attorneys as will enable him to make full and true an- swers to the interrogatories. (Mass. Acts 1913, c. 815.) § 1811. Filing' interrogatories — Failure to answer — Ex- tent to which answer compelled. Sec. 3. Interrogatories shall be filed in the clerk's office or in the office of a jus- tice who has no clerk or with a trial justice, and notice of such filing, with a copy of the interrogatories, shall be sent by the party interrogating to the party interro- gated, or to his attorney of record. If, within ten days after such notice, or in a police, district, or municipal court within such lesser time as the court may by gen- eral or special order direct, the party interrogated does not answer the interrogatories, the court shall, upon motion, order the party interrogated to answer such of the interrogatories as it finds proper, within such time as it may fix; but no party interrogated shall be obliged to answer a question or produce a document which would tend to criminate him or to disclose his title to any prop- erty the title whereof is not material to an issue in the proceeding in the course of which he is interrogated, nor to disclose the names of witnesses, except that the court may compel the party interrogated to disclose the names 1272 EQUITY PEACTICE of witnesses and their addresses if justice seems to re- quire it, upon such terms and conditions as the court may deem expedient. A party shall not interrogate an ad- verse party more than once unless the court otherwise orders, except as to any new matters which have been disclosed by the answers to interrogatories previously filed. (Mass. Acts 1913, c. 815.) § 1812. Failure or refusal to answer. Sec. 4. If a party interrogated neglects or refuses to answer interroga- tories, or fails to amend or expunge an answer or part of an answer as ordered, the court may make and enter such order, judgment or decree as justice requires. (Mass. Acts 1913, c. 815.) § 1813. Interrogatories to corporations — To persons under disability. Sec. 5. If a corporation is a party, the adverse party may examine the president, treasurer, clerk or a director, manager or superintendent, or other officer thereof, as if he were a party. If a municipal corpora- tion is a party, the mayor of a city or the chairman of the board of selectmen of a town may be examined as if he were a party, except that no city or town official shall be interrogated concerning matters of public record. If a minor or person under guardianship is a party, the ad- verse party may examine as if said party were not a minor or under guardianship : provided, that if the minor be not of such age as to appreciate an oath, or the per- son under guardianship be mentally incompetent to an swer, the person appearing in the suit as the guardian, guardian ad litem or next friend of such party shall make answer. (Mass. Acts 1913, c. 815.) § 1814. Costs. Sec. 6. Such order may be made re- specting costs, either in the action or cause or otherwise, as the court may direct by general rule or by a special order in each case. (Mass. Acts 1913, c. 815.) § 1815. Sealing up matters not pertinent. Sec. 7. Nothing in this act shall be construed to affect the right of a party interrogated under the direction of the court to seal up or otherwise protect from examination such parts of any document, book, voucher, or other writing as contain matters not pertinent to the subject of the MASSACHUSETTS STATUTES AND RULES 1273 action, or to affect the power of the court to protect said right or any right of the party interrogated, by suitable order. (Mass. Acts 1913, c. 815.) Costs § 1816. Frivolous prayer for discovery. Sec. 13. In suits in equity in which, as to one or more of the de- fendants, the plaintiff seeks merely for a discovery of facts which are material to his rights and interests in a pending or anticipated suit, and not for a decree against them, the court shall allow such defendants all their reasonable costs and expenditures, according to the usual course of proceedings in equity in like cases, although the plaintiff prays for a decree, if the court is satisfied that the prayer is frivolous, a mere pretense, or is not essentially connected with the subject matter of the dis- covery. (Mass. E. L. 1902, c. 203.) § 1817. Discretion of court. Sec. 14. In suits in equity and in other civil actions and proceedings in which no provision is expressly made by law, the costs shall be wholly in the discretion of the court, but no greater amount shall be taxed therein than is allowed for similar charges in actions at law. (Mass. E. L. 1902, c. 203.) Indobsembnt of Peocess § 1818. Before entry of writ. Sec. 39. Original writs, writs of audita querela, writs of scire facias by private persons on judgment or recognizance, writs of error in civil cases, writs of and petitions for review, petitions for partition in the superior court, petitions to establish liens on buildings and land, petitions for certiorari or mandamus and bills in equity, in which the plaintiff' is not an inhabitant of the commonwealth, shall, before the entry thereof, be indorsed by a responsible person who is such inhabitant; but if one of the plaintiffs is such an inhabitant, the process need not be so indorsed. Every indorser, in case of avoidance or inability of the plaintiff, shall be liable to pay all costs which may be awarded against the plaintiff if an action therefor is commenced 1274 EQUITY PRACTICE within one year after the original judgment. (Mass. R. L. 1902, c. 173.) § 1819. Indorsement after entry of writ. Sec. 40. If a plaintiff who is not an inhabitant of the commonwealth has, by accident, mistake or inadvertence, failed to have his writ, bill or petition indorsed as required by the preceding section, the court may at any stage of the case, upon terms, allow him to procure an indorser with the same effect as if the writ, bill or petition had been in- dorsed before the entry thereof. (Mass. E. L. 1902, c. 173.) § 1820. Removal of plaintiff after suit commenced. Sec. 41. If, after the commencement of an action, the plaintiff removes from the commonwealth, the court, upon motion of any other party, shall, and of its own motion may, require the plaintiff to procure a responsible indorser. (Mass. E. L. 1902, c. 173.) § 1821. Indorser moving from state. Sec. 42. If an in- dorser removes from the commonwealth or ceases to be responsible, the court may require the plaintiff to pro- cure a responsible indorser. (Mass. E. L. 1902, c. 173.) § 1822. indorsement to secure costs in supreme judi- cial court. Sec. 43. The supreme judicial court may re- quire an indorser or security for the payment of costs in a probate or insolvent case or proceeding pending there- in. (Mass. E. L. 1902, c. 173.) § 1823. Dismissal on failure to procure indorser. Sec. 44. If a plaintiff fails to procure an indorser according to the order of the court, his action shall be dismissed and the defendant or other party shall recover his costs. (Mass. E. L. 1902, c. 173.) § 1824. Substituting indorser. Sec. 45. The court may permit the name of an indorser to be stricken out and a new and responsible indorser to be substituted. Every indorser shall be liable for costs from the commencement of the action. (Mass. E. L. 1902, c. 173.) Ebvivok § 1825. Appearance or summons. Sec. 17. If a party to a suit in equity dies and the cause by the rules of MASSACHUSETTS STATUTES AND RULES 1275 equity may be revived against or in favor of an executor, administrator, heir, devisee or other person, such repre- sentative may, in lieu of proceedings to revive the same, appear or be summoned to prosecute or defend in like manner as in an action at law. (Mass. R. L. 1902, c. 172.) Simplification of Pkocbduke § 1826. New trial — ^When denied. Section 1. No new trial shall be granted in any civil action or proceeding on the ground of improper admission or rejection of evi- dence, or for any error as to any matter of pleading or procedure, if, in the opinion of the judge who presided at the trial when application is made by motion for a new trial, or in the opinion of the supreme judicial court when application is made by exceptions or otherwise, the error complained of has not injuriously affected the substantial rights of the parties; and, if it appears to such court that said error affeots part only of the matter in contro- versy or some or one only of the parties, the court may direct final judgment as to part thereof, or some or one only of the parties, and may direct a new trial as to the other part only or as to the other party or parties. (Mass. Acts 1913, c. 716.) § 1827. Appeal — Directing entry of judgment — Trial of issues of fact. Sec. 2. Whenever a question in dispute at the trial of an issue of fact in any civil action or proceed- ing depends upon the decision of a question of law, the full bench of the supreme judicial court, upon appeal, exceptions or report or otherwise,, may, if satisfied that it has before it all the facts necessary for determining the question in dispute, direct that such judgment or de- cree be entered or that such other action be taken as shall accord with the determination of the full court ; or, if the full court shall be of the opinion that it has not before it sufficient facts to determine said question, it may direct such issues or questions as it shall think proper to be tried before a jury, if the case be a jury case, or otherwise before a judge, and may direct in the alternative what action shall be taken upon the ver- dict or finding. When any such question of law shall Whltehouse B. P, Vol, 11—25 1276 EQUITY PRACTICE arise in a trial, the judge shall, by leaving appropriate questions to the jury, or by his own findings where the trial is without a jury, ascertain so far as is practicable all the facts both as to liability and damages necessary on any theory of the law to enable the court to make the proper final disposition of the case, unless in the opinion of the court such a course is inexpedient under the cir- cumstances of the case. "When special questions are sub- mitted to a jury, the judge may or may not take a general verdict, and may report the case on the answers of the jury, or make such other order thereon as the judge may deem proper. A judge reporting to the full court for its determination a question as to the correctness of any rulings of law made by him at a trial, or on a motion for a new trial, shall have the power to make in any proper case a provision in the report that, if his rulings were correct, a judgment or decree shall be entered for the party in whose favor the rulings were made, and that, if his rulings were wrong, the judgment or decree shall be entered in accordance with such rulings as he ought to have made. (Mass. Acts 1913, c. 716.) § 1828, Amendments in appellate court — Taking evi- dence. Sec. 3. The supreme judicial court, upon any ap- peal, bill of exceptions, report, or other proceeding in the nature of an appeal in any civil action, suit or pro- ceeding, shall have all the powers of amendment of the court below; and whenever exceptions have been taken to the exclusion of evidence, or where the alleged error arises from the omission at the trial of some fact which, under the circumstances of the case, may subsequently be proved without involving any question for a jury, and without substantial injustice to either party, the supreme judicial court shall have full discretionary authority to cause such further testimony to be taken as it deems nec- essary, either by oral examination in court, by reference, by affidavit or by deposition, and the court shall have power to render any judgment and to make any order that ought to have been made upon the whole case. (Mass. Acts 1913, c. 716.) § 1829. Passing on exceptions where evidence re- MASSACHUSETTS STATUTES AND RULES 1277 ported. Sec. 4. Upon an appeal in a suit in equity in which the evidence is reported to the full court, all ques- tions regarding the improper admission or rejection of evidence, raised by exceptions taken at the hearing, shall be subject to revision by the court in the same manner as if they were contained in a bill of exceptions, and the re- port of the evidence shall include, as part thereof, notes of any exceptions to the admission or rejection of evi- dence and the rulings of the judge in respect thereto, and it shall not be necessary to file any bill of exceptions as to such admission or rejection of evidence or to suspend the entry of a decree by reason of any such exceptions. (Mass. Acts 1913, c. 716.) § 1830. Case stated — Powers of court. Sec. 5. Upon a case stated by agreement of the parties for the decision of the court in any action, suit or proceeding, any court before which such case shall come, either in the first in- stance or upon appeal or exceptions or other proceedings in the nature of an appeal, shall be at liberty to draw from the facts and documents stated in the case any in- ferences of fact that might have been drawn therefrom at a trial, unless the parties expressly agree that no in- ferences shall be drawn. (Mass. Acts 1913, c. 716.) Decree as Deed §1831. Decree to operate as deed. Section 1. Whenever a final decree in equity shall be made by the supreme judi- cial court, or the superior court or a justice thereof, directing that a deed, conveyance or release of any real estate or interest therein shall be made, and the party who is directed to make such deed, conveyance or re- lease does not duly execute the same within the time spec- ified in the decree, the decree itself shall operate to vest the title to the real estate or interest in the party entitled thereto by the decree, as fully and completely as if such deed, conveyance or release had duly been ex- ecuted by the party directed to make it. (Mass. Acts 1910, c. 376.) § 1832. Recording decree. Sec. 2. The recording of a duly certified copy of such decree, attested by the clerk 1278 EQUITY PRACTICE or assistant clerk of the court wherein it was made, in the registry of deeds of the district or districts wherein said real estate is situated, shall have the same force and effect as if a duly executed deed, conveyance or re- lease had so been recorded. (Mass. Acts 1910, c. 376.) § 1833. Registration of copy of decree. Sec. 3. In the case of registered land the registration of a duly cer- tified copy of such decree, attested by the clerk or assist- ant clerk of the court wherein it was made, in the office of the assistant recorder for the district or districts in which the land is situated, shall have the same force and effect as if a duly executed deed, conveyance or release had so been registered. (Mass. Acts 1910, c. 376.) § 1834. Enforcement of performance of decree. Sec. 4. The power which the court, or a justice thereof, had prior to the passage of this act, to enforce performance of any decree in any manner, shall not be diminished or affected by this act. (Mass. Acts 1910, c. 376.) Pebliminaey Injunctions and Tempoeaey Resteaining Oeders § 1835. Notice — Procedure. Section 1. No preliminary injunction shall be granted without notice to the opposite party. No temporary restraining order shall be granted without notice to the opposite party, unless it shall clearly appear from specific facts, shown hj affidavit or by the verified bill, that immediate and irreparable loss or damage .will result to the applicant before the matter can be heard on notice. In case a temporary restraining order shall be granted without notice, in the contin- gency specified, the matter shall be made returnable at the earliest possible time, and in no event later than ten days from the date of the order, and shall take prec- edence of all matters except older matters of the same character. When the matter comes up for hearing the party who obtained the temporary restraining order shall proceed with his application for a preliminary injunc- tion, and if he does not do so the court shall dissolve the temporary restraining order. Upon two days' notice to the party obtaining such teriiporary restraining order. MASSACHUSETTS STATUTES AND RULES 1279 the opposite party may appear and move the dissolution or modification of the order, and in that event the court or judge shall proceed to hear and determine the motion as expeditiously as the ends of justice may require. Every temporary restraining order shall be filed forthwith in the clerk's office. The provisions of this act shall not apply to any proceedings in the probate courts. (Mass. Acts 1913, c. 515, as amended by Acts 1913, c. 840.) Violation of Injunctions § 1836. Trial by jury. Section 1. The defendant in pro- ceedings for violation of an injunction, where it appears from the petition filed in the court alleging the violation, that the violation is an act which would also be a crime, shall have the right to trial by jury on the issue of fact only, as to whether he committed the acts alleged to con- stitute the said violation, and the said trial by jury shall take place forthwith, and if there is no sitting of a jury in the county where the contempt proceedings are to be heard, a venire shall issue to impanel a jury forthwith. (Mass. Acts 1911, c. 339.) § 1837. Provision not applicable to probate courts. Sec. 2. The provisions of this act shall not apply to pro- ceedings in the probate courts. (Mass. Acts 1911, c. 339.) Quieting Title § 1838. Describing: unknown defendants — Joinder of plaintiffs. Sec. 6. If in a suit in equity to quiet or estab- lish the title to land situated in this commonwealth or to remove a cloud from the title thereto, it is sought to determine the claims or rights of any persons who are unascertained, not in being, unknown or out of the com- monwealth, or who cannot be actually served with process and made personally amenable to the decree of the court, such persons may be made defendants and, if they are unascertained, not in being or unknown, they may be described generally, as the heirs or legal representatives of A B, or such persons as shall become heirs, devisees or appointees of C D, a living person, or persons claim- ing under A B. It shall not be necessary for the mainte- 1280 EQUITY PRACTICE nance of such suit that the defendants shall have a claim or the possibility of a claim resting upon an instrument the cancellation or surrender of which would afford the relief desired; but it shall be sufficient that they claim or may claim by purchase, descent or otherwise, some right, title, interest or estate in the land which is the sub- ject of the suit and that their claim depends upon the construction of a written instrument or cannot be met by the plaintiffs without the production of evidence. Two or more persons who claim to own separate and distinct parcels of land in the same county by titles derived from a common source, or two or more persons who have sep- arate and distinct interests in the same parcel, may join as plaintiffs in any suit brought under the provisions of this section. (Mass. E. L. 1902, c. 182.) § 1839. Constructive service of notice. Sec. 7. If in such suit the court finds that actual service cannot be, or has not been, made upon a defendant, it may at the re- quest of the plaintiff order notice of the suit to be posted in a conspicuous place on the land or to be published in a newspaper within or without the commonwealth, or both, or to be given in such other manner as it considers most effectual, and may also require personal notice to be given. Notice given under the provisions of this section shall be constructive service on all the defendants. (Mass. R. L. 1902, c. 182.) § 1840. Non-appearance of defendants not actually served — Guardians ad litem. Sec. 8. If, after notice has been given or served as provided in the preceding section and the time limited in such notice for the appearance of the defendants has expired, the court finds that there are or may be defendants who have not been actually served with process within the commonwealth and who have not appeared in the suit, it may of its own motion, or on the representation of any party, appoint a guardian ad litem or next friend of any such defendant, and if any such defendants have or may have conflicting interests, it may appoint different guardians ad litem or next friends to represent them. (Mass. E. L. 1902, c. 182.) § 1841. Expenses of guardian ad litem. Sec. 9. The MASSACHUSETTS STATUTES AND RULES 1281 cost of appearance of any such guardian ad litem or next friend, including the compensation of his counsel, shall be determined by the court and paid by the plaintiff, against whom execution may issue therefor in the name of the guardian ad litem or next friend. (Mass. R. L. 1902, c. 182.) § 1842. Decree. Sec. 10. After all the defendants have been served with process or notified as provided in sec- tion seven and after the appointment of a guardian ad litem or next friend, if such appointment has been made, the court may proceed as though all the defendants had been actually served with process. Such suit shall be a proceeding in rem against the land, and a decree estab- lishing or declaring the validity, nature or extent of the plaintiff's title may be entered, and shall operate directly on the land and shall have the force of a release made by or on behalf of all defendants of all claims inconsistent with the title established or declared thereby. The pro- visions of this and the four preceding sections shall not prevent the court from also exercising jurisdiction in personam against the defendants who have been actually served with process and who are personally amenable to its decrees. (Mass. E. L. 1902, c. 182.) Change Feom Law to Equity § 1843. Changing action at law to suit in equity. Sec. 52. The supreme judicial court or the superior court may, at any time before final judgment, and upon terms, allow amendments changing an action at law into a suit in equity, or a suit in equity into an action at law, if it is necessary to enable the plaintiff to sustain the action or suit for the cause for which it was intended to be brought. The court in which the amendment is allowed may retain jurisdiction of the cause as amended. (Mass. R. L. 1902, c. 173, as amended by Acts 1911, c. 275.) Redemption" § 1844. When debtor may sue. Sec. 39. The debtor may, within the year before limited for redemption and irrespective of any tender, bring in the supreme judicial 1282 EQUITY PRACTICE court or the superior court in the county in which the land lies, instead of a writ of entry, a suit in equity for redemption, under the j^rovisions of the two following sections. (Mass. E. L. 1902, c. 178.) § 1845. Offer of payment — Deposit of money with clerk. Sec. 40. The debtor shall in his bill offer to pay such amount as shall be found due for redemption and may set forth any tender he has made. The court shall determine the amount due, unless it has been already as- certained by three justices of the peace as provided in section thirty-four, and shall require the debtor, within such time as it may order, to deposit with the clerk for the use of the creditor or purchaser the amount due for redemption. Upon the debtor 's complying with the order, he shall be entitled to judgment and execution for seisin of the land as at common law. (Mass. E. L. 1902, c. 178.) § 1846. Costs. Sec. 41. The court may in such suit award costs to either party. But the creditor or pur- chaser shall not be required to pay costs, unless it appears that he has unreasonably neglected to render, when re- quested, a just and true account of the amount due on the judgment, of the money expended in repairing and im- proving the land and of the rents and profits thereof; or unless it appears that a sufficient amount was tendered to him for the redemption of the land, and that he neglected for seven days thereafter to execute and deliver a release thereof as before required. If the creditor or purchaser has, before the commencement of the suit, tendered such a deed of release and alleges such tender and brings the deed into court to be delivered to the debtor, he shall recover costs. (Mass. E. L. 1902, c. 178.) EULES OF THE SUPEEME JUDICIAL COUET * §1847. Original process. When, in a suit in equity, the original process to require the appearance of defend- ants shall be a subpoena, it shall be in form following: — * Adopted Jan. 4, 1905. Corrected to January 1, 1915. The equity rules of the Superior Court are the same as the above, omitting rule 39, those portions of rule 36 between the * and the t and after the t, and the portion of rule 38 after the *. MASSACHUSETTS STATUTES AND RULES 1283- Commonwealth of Massacliusetts. , ss. To A B, of (addition) Greeting : [L. S.J We command you tliat yon appear before our Supreme Judicial Court, next to be holden at , within and for the county of on the day of next, then and there to answer to a bill of complaint exhibited against you in our said court by C D, of (addition), and to do and receive what our said court shall then and there consider in that be- half. Hereof fail hot, under the pains and penalties of the law in that behalf provided. Witness, M. P. K., Esquire, the day of in the year of our Lord J. N., Clerk. The writ shall bear the test of the chief justice, or of the first justice who is not a party to the suit; it shall be under the seal of the court, and be signed by the clerk, and shall be served by the same officers and in the same manner as other original writs of summons are by law to be served. (Mass. Eq. Rule 1.) § 1848. Issuance of injunction. No injunction or other proceeding shall be ordered until the bill is filed, unless for good cause shown. When an injunction has been is- sued or ordered, the original bill shall not be taken from the files, except for use before the court, or a justice thereof, without an agreement of counsel, or a special order of the court. No injunction shall issue except upon a bill which has been sworn to or upon verification of the material facts by affidavit or otherwise. (Mass. Eq. Rule 2.) § 1849. Rule days. There shall be rule days on the first Monday of each month, in all the counties except the County of Dukes County and the County of Nantucket, for the return of process and the entry of all proceedings and orders which may be taken at the rules. (Mass. Eq. Rule 3.) § 1850. Process — Service and return. All process shall be made returnable at a return day which shall be within 1284 EQUITY PRACTICE three months after the date of the process and at least fourteen days after its date, if the process requires four- teen days' service, and at least thirty days after its date, if the process requires thirty days' service. If a party is not found, a copy thereof may be left at his usual place of abode; and the truth of the case being returned by the officer, if it is made to appear to the court that the party has actual notice of the suit, no other service shall be re- quired ; otherwise, such notice shall be given as the court shall order. (Mass. Eq. Eule 4.) § 1851. Non-residents — Appearance — Service by publi- cation. Whenever it appears that a defendant resides out of the Commonwealth, the clerk, on application of the plaintiff, at any time after the filing of the bill, shall enter an order requiring such defendant to appear and answer the plaintiff 's bill, if in any part of the United States east of the Mississippi Eiver, or the States of Louisiana, Mis- souri, Iowa, or Minnesota, within one month; if within any other of the United States, or New Brunswick, Nova Scotia, or Canada, within two months; if elsewhere in the United States, or in Great Britain, Ireland, or France, within three months ; and if in other foreign parts, within six months, from the rule day next succeeding the date of such order. The order shall state the title of the suit, and shall set forth briefly the substance of the plaintiff's bill. A copy of the order shall be served on such defend- ant personally, or published three times, in different weeks, within thirty days after the date of the order, the last publication to be fourteen days at least before the time of appearance, in some newspaper published in the county where the suit is pending; and proof of such serv- ice shall be made by affidavit, or in such other manner as the court may order. (Mass. Eq. Eule 5.) § 1852. Printing pleadings. Bills, answers, pleas, and demurrers may be printed or written. If printed, they shall be on paper of the usual quarto size; and the rea sonable expense of printing the same way, at the discre- tion of the court, be taxed in the bill of costs. (Mass. Eq. Eule 6.) § 1853. Answer. The defendant shall answer fully, MASSACHUSETTS STATUTES AND RULES 1285 directly, and specifically to every material allegation or statement in the bill, so far as it relates or refers to him. (Mass Eq. Rule 7.) § 1854. Return days — Default — Decree confessed. The day of appearance shall be the return day of the writ or subpoena, when personal service shall be made on the de- fendant, or he shall have had personal notice of the suit; or the return day of any order issued under the fourth or fifth rule, when no personal service shall be made. And, if the defendant does not appear and file his answer, plea, or demurrer within one month after the day of appearance, the plaintiff may enter an order to take his bill for confessed ; and the matter thereof may be decreed accordingly, unless good cause appears to the contrary. (Mass. Eq. Rule 8.) § 1855. Demurrer, plea or answer — Part of bill. The defendant may, at any time before the bill is taken for confessed, or afterwards by leave of the court, demur, plead, or answer to the bill; and he may demur to part, plead to part, and answer as to the residue; but, in any case in which the bill charges fraud or combination and discovery is sought, a plea to such part must be accom- panied with an answer supporting the plea, and explicitly denying the fraud or combination, and the facts on which the charge is founded. (Mass. Eq. Eule 9.) § 1856. Setting down plea or demurrer for argument — Taking issue on plea. The plaintiff may set down the plea or demurrer to be argued, or take issue on the plea, within fifteen days from the time when the same is filed; and, if he fails to do so, a decree, dismissing the bill, with costs, may be entered upon motion, unless good cause appears to the contrary. (Mass. Eq. Rule 10.) § 1857. Answer when plea or demurrer overruled. If a plea or demurrer be overruled, no other plea or demurrer shall be received, but the defendant shall proceed to an- swer the plaintiff's bill; and, if he fails to do so within one month, the plaintiff may enter an order that the same, or so much thereof as is covered by the plea or demurrer, be taken for confessed; and the matter thereof may be 1286 EQUITY PRACTICE decreed accordingly, unless good cause appears to the contrary. (Mass. Eq. Eule 11.) § 1858. Costs on interlocutory order or decree. In making any interlocutory order or decree costs may be ordered in the discretion of the court. (Mass. Eq. Kule 12.) § 1859. Special matter in answer. The defendant, in- stead of filing a formal plea or demurrer, may insist on any special matter in his answer, and have the same benefit therefrom as if he had pleaded the same or de- murred to the bill. (Mass. Eq. Eule 13.) § 1860. Cross-bills. The defendant to a cross bill shall in no case be compelled to answer thereto before the defendant to the original bill has answered such original bill. No cross bill shall be filed without leave of the court. (Mass. Eq. Eule 14.) § 1861. Replications. The form of the general replica- tion shall be that the plaintiff joins issue on the answer. No special replication shall be filed but by leave of the court. (Mass. Bq. Eule 15.) § 1862. Replication — Setting- down case for hearing — Exceptions. The plaintiff shall reply, or set down the case for hearing on the bill and answer, or, in case dis- covery is sought by the bill, shall file exceptions, within one month after the answer is required to be filed ; or, if the answer be filed before it is required, then within one month after written notice of such filing; and if he fails so to do, a decree may be entered for the dismissal of the bill, with costs. (Mass. Eq. Eule 16.) § 1863. Discovery — Exceptions — Answer — Argument — Costs — Second answer. When discovery is sought in the bill, if the plaintiff excepts to an answer as insuffi- cient, he shall file his exceptions, and forthwith give no- tice thereof to the defendant or his solicitor ; and if within fifteen days the defendant puts in a sufficient answer, the same shall be received without costs ; but if the defendant insists on the sufficiency of his answer, he shall, within fif- teen days, file a statement to that effect, and give notice thereof to the plaintiff, and thereupon the exceptions shall be referred to a master; and either party, dissatis- MASSACHUSETTS STATUTES AND RULES 1287' fied with the master's decision, may, within seven days after the filing of his report, set down the exceptions to be argued. If the exceptions are overruled, or the answer adjudged insufficient, the prevailing-party shall recover costs of the reference to the master, and also of the hear- ing before the court. If the answer is adjudged insuffi- cient, a new answer shall be filed within fifteen days. Upon a second answer being adjudged insufficient, costs shall be doubled by the court; and the defendant may be examined upon interrogatories, and committed until he shall answer them. (Mass. Eq. Rule 17.) § 1864. Amendment of bill — Costs. The plaintiff may, of course, and without payment of costs, amend his bill at any time before answer, plea, or demurrer filed; but if the defendant's appearance has been entered, the plaintiff shall, at his own expense, furnish the defendant with a certified copy of the amendment filed. No amendment, however, shall be allowed, as of course, to a bill which has been sworn to by the party. (Mass. Eq. Eule 18.) § 1865. Amendment after demurrer. If the defendant demurs to the bill for want of parties, or other defect which does not go to the equity of the whole bill, the plaintiff may amend at any time before the demurrer is set down for argument, or within fourteen days after the demurrer is filed, and notice thereof given to him. (Mass. Eq. Eule 19.) §1866. Amendment — Service on defendant — Answer. Upon the coming in of the answer, if the plaintiff finds it necessary to amend his bill, in order to meet the case made by the answer, he may do so by furnishing to the defendant a certified copy of the amendment; and when discovery is sought in the bill, the plaintiff may also, at the same time, except to the defendant's answer to the bill as originally filed. And in such case, if the defendant submits to answer further, or is ordered to answer fur- ther, he shall answer the amendments of the bill, and shall furnish a sufficient answer to the bill as originally filed, at the same time. (Mass. Eq. Eule 20.) § 1867. Amendments — Discretion of court. The court may in its discretion allow the parties to amend their 1288 EQUITY PRACTICE pleadings, and order or permit pleadings to be filed, or any proceeding to be had, at other times than are pro- vided in these rules; and may in all cases impose just and reasonable terms upon the parties. (Mass. Eq. Eule 21.) § 1868. Service of notices. All notices in a case re- quired to be given to a party, may be given to his solicitor of record; and if transmitted through the post-office, postpaid, shall be deemed to have been received by the person to whom they are addressed, in due course of mail, unless the contrary appears by affidavit or otherwise. (Mass. Eq. Eule 22.) § 1869. Death of party — Bringing^ in representative. When the death of any party is suggested in writing, and entered on the docket, the clerk, upon application, may issue process to bring into court the representative of such deceased party. (Mass. Eq. Eule 23.) § 1870. Parties not in jurisdiction of court. In all cases where it appears to the court that some of the par- ties to a suit cannot be served with process by reason of their being out of the jurisdiction of the court, the court may in its discretion proceed in the cause without service upon such parties; but in such cases the decree shall af- fect only such persons and property as are within the jurisdiction of the court. (Mass. Eq. Eule 24.) § 1871. Bill of revivor — Supplemental bill — Joinder of parties. When the circumstances of the case are such as to require a bill of revivor, or supplemental bill, or bill in the nature of either or both, or the joinder of addi- tional or different parties, the requisite allegations may be made by way of amendment to the original bill; and, after service on any new parties, as in the case of an original bill, and service of copies of the amendments on all the defendants affected thereby, shall entitle the plain- tiff to proceed as on an original bill. (Mass. Eq. Eule 25.) § 1872. Bills by executors or trustees — Interpleader — Appearance of counsel of plaintiff for defendant. In bills by executors or trustees to obtain the instructions of the court, and in bills of interpleader, or in the nature of MASSACHUSETTS STATUTES AND EULES 1289 interpleader, no solicitor or counsel for the plaintiff shall appear or be heard or act for or in behalf of any or either of the defendants. (Mass. Eq. Rule 26.) § 1873. When case ready for hearing. At the expira- tion of one month from the day when issue is joined, un- less the time be enlarged for cause shown, the case shall be considered as ready for hearing. (Mass. Eq. Rule 27.) §1874. Admissions by failure to answer. All facts well alleged in a bill, other than for discovery only, which are not denied or put in issue by the answer, shall be deemed to be admitted. (Mass. Eq. Rule 28.) § 1875. Depositions. Testimony taken by depositions shall be taken in the manner required by statute and by the rules of the court in actions at law. (Mass. Eq. Rule 29.) § 1876. Hearing before master. When any matter is referred to a master, he shall, upon the application of either party, assign a time and place for a hearing, which shall be not less than ten days thereafter; and the party obtaining the reference shall give the adverse party, at least seven days before the time appointed for the hear- ing, notice in writing of the time and place, and make proof thereof to the master; and thereupon, if the party summoned does not appear to show cause to the contrary, the master may proceed ex 'parte; and if the party obtain- ing the reference does not appear at the time and place, or show cause why he does not, the master may either proceed ex parte, or the party obtaining the reference shall lose the benefit of the same, at the election of the adverse party. (Mass. Eq. Rule 30.) §1877. Report of master — Objections — Exceptions. When the master has prepared a draft copy of his report, he shall notify the parties or counsel of a time and place when and where they may attend to hear the same, and suggest such alterations, if any, as they may think proper; upon consideration whereof, the master will finally settle the draft of his report, and give notice thereof to the parties or counsel; whereupon, after perus- ing the same, or being furnished with a copy thereof, if they so request and pay the usual fees therefor, five 1290 EQUITY PRACTtCfi days shall be allowed for bringing in written objections thereto, which objections, if any, shall be appended to the report. No exception to a master's report will be allowed without a special order of the court, unless founded upon an objection made before the master, and shown by his report, and unless filed with the clerk within fifteen days from the filing of the report. Notice of the filing of a master's report shall be forthwith sent by the clerk to each party or his counsel. (Mass. Eq. Eule 31.) § 1878. Exceptions to master's report. When excep- tions shall be taken to the report of a master, they shall be filed with the clerk, and notice thereof shall forthwith be given to the adverse party; and the exceptions shall then be set down for argument. In every case, the excep- tions shall briefly and clearly specify the matter excepted to, and the cause thereof ; and the exceptions shall not be valid as to any matter not so specified. It shall be a suf- ficient compliance with these rules for a party to state that he excepts for the reasons set forth in objection num- ber — [giving its number]. (Mass. Eq. Eule 32.) § 1879. Place of hearing causes. All hearings in equity shall be had in the county in which the case is pending, if the court is in session for civil business therein ; unless otherwise ordered for special cause. (Mass. Eq. Rule 33.) § 1880. Hearing before justice in another county — In- junction proceedings. When any party desires a hear- ing in equity before a single justice, except at a sitting of the court held in the county where the case is pending, he may apply to a justice to appoint a time and place for the hearing; and when such time and place have been appointed, he shall give notice thereof to the adverse party, or his solicitor, through the post-office, postpaid. But this rule shall not prevent a party from obtaining a preliminary injunction, or a dissolution of an injunction, or other order, upon a shorter notice, or without notice, if the court shall think the same reasonable. And cases may be heard by consent of parties, and the permission of the court, without such notice. (Mass. Eq. Eule 34.) §1881. Reporting evidence on interlocutory applica- tion. At any hearing before a single justice upon any MlSSACHUSEtTS STATUTES AND' RULES 1291 interlocutory question or for a final decree, the evidence shall not be reported to the full court, unless one of the parties, before any evidence is offered, requests that the same be so reported, or the justice, for special reasons, so directs; and the justice will appoint a suitable disin- lerested person to take the evidence. The expense of taking the evidence shall be paid by the party requesting the taking of the same, to be allowed in the taxation of costs, if costs are decreed to him. (Mass. Eq. Eule 35.) § 1882. Trial of issues of fact by jury.' Whenever it is necessary or proper to have any fact tried and determined by a jury, the court will direct an issue for that purpose, to be framed by the parties, containing a distinct affir- mation and denial of the points in question, or in such form as the court shall order; and the issue thus framed and joined shall be submitted to a jury, , and be tried upon the like evidence as in a suit at law, together with such part of the answers, depositions, and other proceed- ings in the cause as the court shall direct.* When issues for a jury are desired in a probate appeal, application therefor shall be filed with the clerk within ten days after the time has expired for entering an appearance for the appellee ; and f when issues are desired in a suit in equity, the application shall be filed within ten days after the parties are at issue; but in either case the court may extend or restrict the time.| At a hearing upon a motion for the framing of issues in an appeal from the allowance or disallowance of a will in the probate court, if the ap- pellant filed in that court a statement in writing of his desire to have the facts finally determined by a jury and a waiver of the right to be further heard there, and if the record shows a certificate of the judge that upon investigation of the matters relied on by the appellant, he deemed them a proper subject for a judicial inquiry be- fore a jury, the fact that the case was decided without a full presentation of the appellant 's testimony in the pro- bate court shall not be a reason for refusing to frame issues, if otherwise issues would be framed. (Mass. Eq. Eule 36, as amended Jan. 1, 1908.) " t t See footnote, ante p. 1282. Whitehouse E. P. Vol. 11—26 1292 EQUITY PRACTICE §1883. Drafting decree — Form. The solicitor of the party in whose favor a decree or order is passed shall draw the same; and without reciting previous proceed- ings, decrees shall begin, in substance, as follows: — ' ' This case came on to be heard [or to be further heard, as the fact may be] at this sitting and was argued by counsel; and thereupon, upon consideration thereof, it is ordered, adjudged, and decreed," etc. But if it is intended that the final decree shall serve as a record of the case, proper recitals of previous pro- ceedings may be inserted therein. Final process to exe- cute a decree may be by writ of execution in common form, if the decree be solely for the payment of money. (Mass. Eq. Eule 37.) § 1884. Rules in actions at law, when applicable. The rules of the court in actions at law shall govern the entry of the name of the plaintiff's or appellant's attorney; what is necessary in case of a change of attorney; the hearing of motions grounded on fact ; motions for a con- tinuance, and the terms on which such motions are granted; the postponement of actions; objections to evi- dence; the time to be taken in argument; giving of notice; taking original papers from the files of the court; and the inspection of the records of the court.* The foregoing rules shall apply to hearings upon probate appeals, so far as the same are applicable thereto. (Mass. Eq. Eule 38.) § 1885, Docket. The clerk shall keep a separate docket for equity cases and probate appeals, upon which all the proceedings in such cases shall be entered. (Mass. Eq. Eule 39.) * See footnote, ante p. 1282. The law rules referred to are omitted here, because of being in the process of revision at the time this work went to press. CHAPTER XXXVII MICHIGAN STATUTES * § 1886. Circuit courts to be courts of chancery. Section 1. The several circuit courts of this state shall be courts of chancery within and for their respective counties, the powers of which shall be exercised by the circuit judges thereof; and the name and style of such courts sitting in chancery shall be, "The circuit court for the county of , in chancery." (C. L. '97, § 415, How. Ann. St. 2 Ed., § 11931.) §1887. Venue of suits in chancery — Proceedings in behalf of state. Sec. 22. Every suit in chancery shall be commenced in the circuit court for the county in which the property in dispute is situated, if the subject matter is local, and if it is not local, in the county where one of the parties in interest resides, if either is a resident of the state; but if the subject matter is not local, and neither party resides in the state, the suit may be brought in any county; and where it is necessary to file an information or bill in chancery, either to compel the specific perform- ance of contract, cancellation of patents from the state, quiet title, or otherwise to affect real estate; and when such real estate may be situate in different counties, it shall be competent to file such information or bill in the equity side of the circuit court of any one of said counties in which a part of said real estate may be situate; and such court shall have complete jurisdiction in the prem- ises as fully and effectually as if the whole of such estate were situate in the county in which suits may be com- menced. And when it may be necessary to file a bill or * From Compiled Laws, 1897, and Howell's Annotated Statutes 2 Ed. (1913) as amended, corrected to January 1, 1915. Under Michigan Public Acts, 1913, No. 286, a commission was appointed "to prepare * * * bills for the consolidation and revision of the general statutes of this state upon * * » the law relating to civil 1293 1294 EQUITY PRACTICE information or to commence any proceedings in chan- cery on the part or in behalf of the state the same may, at the election of the attorney general, be commenced in the circuit court for the county of Ingham, in the equity side thereof, and said court shall have complete juris- diction and full power and authority in the premises. (C. L. '97, § 434, How. Ann. St. 2 Ed. § 11951.) § 1888. Jurisdictional amount — Specific performance. Sec. 23. Such courts shall dismiss every suit concerning property, excepting suits between copartners, and suits for the enforcement of mechanics ' liens, suits for the fore- closure of mechanics' liens, and suits for the foreclosure of mortgages, and suits for the foreclosure of land con- tracts or other liens upon real estate, where the matter in dispute shall not exceed one hundred dollars with costs to the defendant. Any person, his heirs or assigns, hold- ing a mining option or agreement for a mining lease or license, containing the usual clause found in mining leases or licenses, allowing lessees to terminate such leases or licenses, on notice, shall have an absolute right to have such options or agreements specifically enforced in chan- cery, if not in default in his part of the agreement him- self. Any person, his heirs or assigns, holding an agree- ment for an interest in any such lease or license from the lessee, shall have an absolute right to have the same spe- cifically enforced in chancery, if not in default himself: Provided, that in all such suits for specific performance of mining options and leases, either party shall be entitled to a jury, and the verdict of such jury shall have the same force and effect as a verdict in any other suit in chancery. The remedy herein given for the enforcement of mining options shall apply to existing as well as future options. (C. L. '97, § 435, How. Ann. St. 2 Ed., § 11952, as amended by Act 14, Pub. Acts 1913.) § 1889. Creditors' bills. Sec. 24. Whenever an execu- tion 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 practice and procedure." This commission is to report at the 1915 session of the legislature which had not convened at the time of going to press, MICHIGAN STATUTES AND RULES 1295 execution may file a bill in chancery against sucli defend- ant, and any other persons, to compel the discovery of any property, or things in action belonging to the de- fendant, 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 proceeded from some person other than the defendant. (C. L. '97, § 436, How. Ann. St. 2 Ed., § 11953.) § 1890. — Power of court. Sec. 25. The court shall have power to compel such discovery and to prevent such transfer, payment or delivery, and to decree satis- faction of the amount remaining due on such judg- ment, out of any property, money or things in action belonging to the defendant, or held in trust for him, with the exception above stated, which shall be discovered by the proceedings in chancery, whether the same were originally liable to be taken in execution at law or not: Provided, This act shall not apply to property exempt from execution. (C. L. '97, § 437, How. Ann. St. 2 Ed., § 11954.) § 1891. Set-offs. Sec. 26. In suits for the payment or recovery of money, set-offs shall be allowed in the same manner, and with the like effect, as in actions at law. (C. L. '97, § 438, How. Ann. St. 2 Ed., § 11955.) § 1892. Bills for discovery of frauds in confessing judg- ment. Sec. 27. A bill of discovery may be filed, and the defendant shall be compelled to answer such bill, where the defendant is charged with having given to another person a warrant of attorney to enter up a judgment, or with having confessed or suffered any judgment, purport- ing to be for a sum or debt due, when in fact nothing, or only a part of the sum mentioned in such warrant of at- torney or judgment is due, with intent to defraud the just creditors of such defendant, or to place the property of the defendant out of the reach of his creditors, or to hold the same on some secret trust or confidence, or for the and therefore no intimation can be given as to the extent of the changes proposed, if any. 1296 EQUITY PRACTICE benefit of such defendant. (C, L. '97, § 439, How. Ann. St. 2 Ed., § 11956.) § 1893. — When answer not evidence. Sec. 28. No answer to any bill, filed under the provisions of the pre- ceding section, shall be read in evidence against such defendant on the trial of any indictment for the fraud charged in the bill. (C. L. '97, § 440, How. Ann. St. 2 Ed., § 11957.) § 1894. Lis pendens. Sec. 29. To render the filing of a bill constructive notice to a purchaser of any real estate, it shall be the duty of the complainant to file for record, with the register of deeds of the county in which the lands to be affected by such constructive notice are situated, a notice of the pendency of such suit in chancery, setting forth the title of the cause, and the general object thereof, together with a description of the lands to be affected thereby; and it shall thereupon become the duty of the register to record such notice, in a book kept for that purpose, upon the payment of the same fees as is pro- vided by law for recording deeds. A copy of such record, authenticated by the register, shall be evidence of such notice, and the filing of the same, in all courts and places. (C. L. '97, § 441, How. Ann. St. 2 Ed., § 11958.) § 1895. When oath to answer may be waived. Sec. 31. When a bill shall be filed in chancery, other than for dis- covery only, the complainant may waive the answer being made on the oath of the defendant, and in such cases the answer may be made without oath, and shall have no other or greater force as evidence than the bill. (C. L. '97, § 443, How. Ann. St. 2 Ed., § 11960.) § 1896. Rules of practice. Sec. 33. The supreme court shall have power, from time to time, by general rules of the court, to establish, alter, modify, or amend the prac- tice of the circuit courts in chancery, in the cases not provided for by statute; and said court shall, as often as it may deem it necessary, revise the rules of the said courts with a view to the attainment, as far as practicable, of the following improvements in the practice: 1. The abbreviating of bills, answers and other pro- ceedings ; MICHIGAN STATUTES AND RULES 1297 2. The expediting of the decision of causes; 3. The diminishing of costs; 4. The remedying of such abuses and imperfections, as may be found to exist in the practice, in any class of suits cognizable in chancery; and: 5. The abolishing of all unnecessary forms and tech- nicalities in the proceedings and practice of said courts. (C. L. '97, § 445, How. Ann. St. 2 Ed., § 11962.) §1897. Receivers — Power to appoint. Sec. 34. Each circuit court shall have power to appoint receivers in all cases pending in chancery, when such appointment is al- lowed by law, as well in vacation, as during the sessions of the court. (C. L. '97, § 446, How. Ann. St. 2 Ed., § 11963.) § 1898. — ■ Application. Sec. 35. Application for such appointment may be made to the circuit judge at cham- bers, and shall be heard under such regulations as may be by general or special rules prescribed. (C. L. '97, § 447, How. Ann. St. 2 Ed., § 11964.) § 1899. Quieting title. Sec. 36. 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 complainant or who is named as grantee in any deed or mortgage to said lands of record in the county in which the lands be, or any other instrument or paper purporting to convey said lands or to claim a lien upon said lands either by way of mortgage or otherwise, and if the complainant shall es- tablish his title to said lands the defendant shall be decreed to release to the complainant all claims thereto and pay costs unless the defendant shall by his answer dis- claim 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. (C. L. '97, § 448, How. Ann. St. 2 Ed., § 11965. See also § 2024, post, p. 1339.) § 1900. Terms. Sec. 37. The stated terms of the circuit court for each county shall be deemed the stated terms of the circuit court in chancery for such county; but each 1298 EQUITY PRACTICE circuit judge may hold as many adjourned and special terms of the circuit court in chancery in any county within his judicial circuit, as the business therein may require. (C. L. '97, § 449, How. Ann. St. 2 Ed., § 11966.) § 1901. When equity calendar to be taken up. Sec. 38. 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 special order of the court. (C. L. '97, § 450, How. Ann. St. 2 Ed., § 11967.) § 1902. Forms of process. Sec. 39. The supreme court shall have authority to prescribe, from time to time, the forms of all process to be issued out of the circuit courts in chancery, and until other forms are prescribed, those now in use may be continued, so far as they may be ap- plicable. (C. L. '97, § 451, How. Ann. St. 2 Ed., § 11968.) § 1903. Process — Signing and service. Sec. 40. Process issued out of the circuit courts in chancery shall be signed by the register in chancery of the county in which it is- sues, and may be served in any part of this state by the sheriff of any county in this state, or any other com- petent person, and the return of any sheriff upon any subpoena or other writ issued from any county in this state, other than that of which he shall be sheriff, shall be made substantially in the same manner, and shall have the same force and effect as the return of the sheriff upon a subpo6na or writ issued from his own county, and such register is authorized to issue as many original writs of subpoena as there may be different counties in this state in which the defendants reside, and the service of any of such original writs of subpoena shall be a valid service on the defendants upon which it is served: Pro- vided, That the sheriff serving such subpoena shall only be entitled to traveling fees for such service from the county seat of his county to the place of service therein, and he shall return the same to the register issuing it by mail .or express on payment or tender to him of the legal fee for such service. (C. L. '97, § 452, How. Ann. St. 2 Ed., § 11969.) § 1904. — Seal and date. Sec. 41. Every such process shall be sealed with the seal of the circuit court, and shall MICHIGAN STATUTES AND RULES 1299 bear date on the day when the same shall issue; and when from its nature requiring to be executed by the sheriff of the county, shall be directed to such sheriff. (C. L. '97, § 453, How. Ann. St. 2 Ed., § 11970.) § 1905. — Blanks— Duty to furnish. Sec. 42. It shall be the duty of every register in chancery to furnish any solicitor of the said courts, when required, and upon payment of the fees allowed by law, blank process to ap- pear and answer bills, and blank process to compel the attendance of witnesses before a master or commissioner, with the seal of the court impressed thereon, and with the name of such process printed or written on the body of the seal. (C. L. '97, § 454, How. Ann. St. 2 Ed., § 11971.) § 1906. When appearance of defendant may be ordered entered. Sec. 43. When a defendant, 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 proceed, as if the party had actually appeared. (C L. '97, § 455, How. Ann. St. 2 Ed., § 11972.) § 1907. Rules for taking bills as confessed and decrees by default. Sec. 44. In all cases not otherwise provided for by law, 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 established. (C. L. '97, § 456, How. Ann. St. 2 Ed., § 11973.) § 1908. Pleadings — Where filed. Sec. 45. Answers, de- murrers, and all other pleadings and proceedings shall be filed in the office of the register with whom the bill or petition in the cause was filed, unless otherwise directed by rule or order of the court; and within such time, and under such regulations as shall be by general rule di- rected. (C. L. '97, § 457, How. Ann. St. 2 Ed., § 11974.) § 1909. Service of pleadings on part of complainant. Sec. 46. "When the appearance of a defendant shall have been entered, and notice thereof shall have been given, according to the practice of the court, it shall be the duty of the complainant to serve on the party so appearing, copies of the pleadings and proceedings at any time filed 1300 EQUITY PRACTICE in the cause on the part of the complainant. (C. L. '97, § 458. How. Ann. St. 2 Ed., § 11975.) § 1910. Service of pleadings on part of defendant. Sec. 47. It shall in like manner be the duty of the defendant, after appearance, to serve on the complainant copies of all pleadings and proceedings so filed on the part of such defendant. (0. L. '97, §459, How. Ann. St. 2 Ed., § 11976.) § 1911. Service on or by solicitor. Sec. 48. If the com- plainant or defendant shall have appeared by a solicitor, the service of the pleadings or proceedings shall be on or by such solicitor. (C. L. '97, § 460, How. Ann. St. 2 Ed., § 11977.) § 1912. When cause deemed at issue — Necessity for subpoena. Sec. 55. Every cause in chancery shall be deemed to be at issue on filing a replication, and it shall not be necessary to issue a subpoena to hear judgment, but all, causes shall be brought to a hearing, under such rules as may be from time to time prescribed. (C. L. '97, § 461, How. Ann. St. 2 Ed., § 11978.) § 1913. Trial by jury— Verdict. Sec. 56. If there be an issue of fact which, in the opinion of the court, shall ren- der the intervention of a jury necessary or proper, said court shall, on request of either party, order a jury im- paneled for the trial thereof, and the verdict of such jury may be used upon the hearing of the cause. (C. L. '97, § 462, How. Ann. St. 2 Ed., § 11979.) § 1914. Enrollment of decree, etc. Sec. 58. 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 in the minutes of the court, and no petition for a rehearing shall have been pre- sented, 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 MICHIGAN STATUTES AND RULES 1301 countersigned by the register who entered the same. (C. L. '97, § 463, How. Ann. St. 2 Ed., § 11981.) §1915. — Filing by register. Sec. 59. 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 said papers were so attached for the purpose of enrollment, emd the name or names of the parties at whose instance the same was done; and thereupon, the said papers so attached, annexed, and signed, together with said cer- tificate, shall be filed by the register, and remain a record in his office; and such certifying and filing shall be deemed an enrollment of the decree and proceedings, for all purposes whatsoever. (C. L. '97, § 464, How. Ann. St. 2 Ed., § 11982.) § 1916. Recording decree affecting reaJty — Effect where conveyance decreed. Sec. 60. After the entry and enrollment of any final decree affecting or determining the title to real estate, a copy of such decree, duly cer- tified by the register in chancery of the county in which the same was entered, under the seal of the court, may be received and recorded in the office of the register of deeds of the proper county, and shall have the same effect as the original decree; and if such decree shall direct the execution of a conveyance or other instrument affecting the title to real estate, the record of such certified copy shall have the same effect as the record of such convey- ance or other instrument affecting the title to real estate would have if duly executed pursuant to said decree. (C. L. '97, § 465, How. Ann. St. 2 Ed., § 11983.) § 1917. Decree — How discharged. Sec. 61. Upon pro- ducing and filing with the register with whom any decree may have been entered, a written acknowledgment by the party in whose favor such decree was rendered, that he has been fully paid and satisfied the amount of all moneys directed by such decree to be paid, certified by some officer authorized to take the acknowledgment of deeds, to have been duly acknowledged before him by the party signing the same, the register shall enter in the docket of such decree, a note of the satisfaction and dis- 1302 EQUITY PHACTICE charge thereof, and such decree shall thereupon be dis- charged, and be of no force or validity. (C. L. '97, § 466, How. Ann. St. 2 Ed., § 11984.) § 1918. — Order for discharge. Sec. 62. The court shall have power to order a decree to be discharged upon a hearing of the parties, and upon satisfactory evidence that such decree has been fully paid or satisfied. (C. L. '97, § 467, How. Ann. St. 2 Ed.; § 11985.) § 1919. How performance of decree may be enforced. Sec. 63. The court may enforce performance of any de- cree, or obedience thereto, by execution against the body of the party against whom such decree shall have been made, or by execution against the goods and chattels, and in default thereof, the lands and tenements of such party; but no execution shall be issued on any final de- cree, until the same shall have been enrolled, as herein- before provided. (C. L. '97, § 468, How. Ann. St. 2 Ed., § 11986.) § 1920. When death not to abate suit. Sec. 64. 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 suggestion to the court, the suit shall proceed in favor of, or against the surviv- ing parties. (C. L. '97, § 469, How. Ann. St. 2 Ed., § 11987.) § 1921. When suit to abate as to party dying. Sec. 65. When one or more of the complainants or defend- ants 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. (C. L. '97, § 470, How. Ann. St. 2 Ed., § 11988.) § 1922, Revival of suits against representatives of de- cedents. Sec. 66. 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 com- plainant. (C. L. '97, § 471, How. Ann. St. 2 Ed., § 11989.) MICHIGAN STATUTES AND RULES 1303 § 1923. — Service of order on representative. Sec. 67. A copy of such order shall be served on the rep- resentative or other person or persons interested, .as aforesaid, against whom the revivor is ordered, if res- idents of the state; bnt 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 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 personal service of such order, the person so served shall be allowed sixty days after such service to appear,, answer, or disclaim. (C. L. '97, § 472, How. Ann. St. 2 Ed., § 11990.) § 1924. — When appearance of representative may be ordered entered. Sec. 68. If they shall not, in the case of personal service, within that time, or in case of publication, within the time prescribed by the order of publication, appear and answer, or disclaim, the court, upon due proof of the service of such order or publica- tion of notice of the same, may cause their appearance to be entered; and in such case the answer of the de- ceased party shall be deemed the answer of such repre- sentatives, or other person or persons as aforesaid; and after such order of appearance, the same proceedings may be had and with the like effect as to absent or non- resident representatives, and other person or persons 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. (C. L. '97, § 473, How. Ann. St. 2 Ed., § 11991.) § 1925. — When bill may be taken as confessed or answer compelled. Sec. 69. 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 at- tachment, or otherwise. (C. L. '97, § 474, How. Ann. St. 2 Ed., § 11992.) § 1926. — When further answer may be required from representative. Sec. 70. If the deceased party shall 1304 EQUITY PRACTICE have answered, and the complainant deem it necessary to obtain a further answer from his 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 a copy of the order to be served-on such representatives, (C. L. '97, § 475, How. Ann. St. 2 Ed., § 11993.) § 1927. — Failure to answer. Sec. 71. In such case, 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 allow, after the serv- ice 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 attachment or otherwise. (C. L. '97, § 476, How. Ann. St. 2 Ed., § 11994.) § 1928. — When representatives of deceased complain- ant may be made complainants. Sec. 72. When the complainant shall die, and the cause of action shall not survive, his representatives may, on affidavit of such death, and on motion in open court, be made complain- ants in the suit, and be permitted to amend the bill, if necessary. (C. L. '97, § 477, How. Ann. St. 2 Ed., § 11995.) § 1929. — Defendant compelled to answer amended bill. Sec. 73. The defendant shall be compelled to answer such amended bill, and the cause shall proceed to issue and a hearing, as in ordinary cases. (C. L. '97, § 478, How. Ann. St. 2 Ed., § 11996.) § 1930. — When surviving complainant may make rep- resentatives of deceased complainants defendants. Sec. 74. When the representatives shall not cause them- selves to be made complainants, within eighty days after the death of the deceased complainant, the surviving complainant may proceed to make them defendants in the suit, as in cases where the representatives of de- ceased defendants are made parties. (C. L. '97, § 479, How. Ann. St. 2 Ed., § 11997.) § 1931. — Order to show cause why suit should not stand revived or bill be dismissed. Sec. 75. If there be no surviving complainant, or he shall neglect or re- MICHIGAN STATUTES AND RULES 1305 fuse to proceed against the representatives of tlie de- ceased complainant as defendants, the court, upon peti- tion of the original defendants, may order such repre- sentatives 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 interests of such representatives are concerned. (C L. '97, § 480, How. Ann. St. 2 Ed., § 11998.) § 1932. — Proceedings if no cause shown. Sec. 76. 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 names, or the dismissal of the bill with costs or otherwise. (C. L. '97, § 481, How. Ann. St. 2 Ed., § 11999.) § 1933. — Revival on petition of surviving defendant. Sec. 77. 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 peti- tion of a surviving defendant, against the representa- tives of the deceased party. (C. L. '97, § 482, How. Ann. St. 2 Ed., § 12000.) § 1934. — Proceedings by surviving defendant. Sec. 78. In such case, the surviving 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 required, or to have the bill, or his petition taken as confessed against them; and the court may, in its dis- cretion, stay the suit as against him until such proceed- ings shall have been had. (C. L. '97, § 483, How. Ann. St. 2 Ed., § 12001.) § 1935. Publication of order requiring creditors to ex- hibit demands. Sec. 79. Whenever a bill shall be filed in chancery, for relief, or for the benefit of the creditors generally of any person, or of any estate, or for the ben- efit of any other persons than the complainants, who will come in and contribute to the expense of such suit, every order which may be made thereon requiring such cred- 1306 EQUITY PRACTICE itors or other persons to exhibit their demands, shall, in all cases, be published once in each week, for at least three weeks, and as much longer as the court may direct, in any newspaper which the court may designate. (C. L. '97, § 484, How. Ann. St. 2 Ed., § 12002.) § 1936. Absent, concealed or non-resident defendants — Order for appearance. Sec. 80. 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 this 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 country the defendant resides, upon proof thereof by affidavit. (C. L. '97, § 485, How. Ann. St. 2 Ed., § 12003.") §1937. —Requisites of order. Sec. 81. The order shall require the defendant to appear and answer as fol- lows: First, If a resident of this state, in not less than three months; Second, If a resident of some other of the United States, or of one of the territories thereof, or of the Brit- ish 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. (C. L. '97, § 486, How. Ann. St. 2 Ed., § 12004.) § 1938. — Publication of order for appearance. Sec. 82. Such order shall be published within twenty days MICHIGAN STATUTES AND RULES 1307 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 pre- scribed for the appearance of such defendant. (C. L. '97, § 487, How. Ann. St. 2 Ed., §12005.) § 1939. — Extension of time for appearance. Sec. 83. The court may, if necessary, by further order, extend the time for the appearance of such defendant ; and in that case, shall direct the publication of such further order for so long a time as it shall think proper. (C. L. '97, § 488, How. Ann. St. 2 Ed., § 12006.) § 1940. — When bill may be taken as conf essed^ — Ref- erence to take proofs. Sec. 84. If the defendant shall not appear within the time limited in the order, upon due proof of such publication as shall have been required, or of the personal service of such order, as herein pro- vided, the complainant's bill shall be taken as confessed, and the court may, at the request of the complainant, direct a reference to a master to take proof of the facts and circumstances stated in such bill. (C. L. '97, § 489, How. Ann. St. 2 Ed., § 12007.) § 1941. — Taking of proof before master. Sec. 85. The master to whom any such reference may be made, shall take such proofs as may be offered; and the bill shall not be considered evidence before the master of any fact stated therein; but when so directed by the court, the master may receive the testimony of the com- plainant as evidence. (C. L. '97, § 490, How. Ann. St. 2 Ed., § 12008.) § 1942. — Examination of complainant with reference to payments. Sec. 86. Whenever the bill shall have been filed for the payment or satisfaction of any sum of money, the court may, in its discretion, direct that the complainant be examined by the master, as to any pay- ments that may have been made to him, or to any person for his use on account of the demand mentioned in the Whitehouse B. P. Vol. 11^27 1308 EQUITY PEACTICE bill, and which ought to be credited on such demand, or he may be examined in open court. (C. L. '97, § 491, How. Ann. St. 2 Ed., § 12009.) § 1943. — Report of master. Sec. 87. The master shall report the proofs and examinations had before him; and on the coming in of the master's report, or on proof and examination in open court, as the case may be, the court shall make such order thereupon as shall be just. (C. L. '97, § 492, How. Ann. St. 2 Ed., § 12010.) § 1944. — Enforcement of decree. Sec. 88. Process may then issue to compel the performance of such decree, either by sequestration of the real and personal estate of the defendant, or such part thereof as shall be deemed sufficient; or where any specific estate or effects are demanded by the bill, by causing possession of the property so demanded to be delivered to the complain- ant. (C. L. '97, § 493, How. Ann. St. 2 Ed., § 12011.) § 1945. — Security before delivery of possession. Sec. 89. Possession in the case last mentioned shall not be delivered until the complainant shall have given such security, and in such sum as the court shall direct, to abide the order of the court touching the restitution of the estate or effects delivered, in case the defendant shall appear and be admitted to defend the suit. (C. L. '97, § 494, How. Ann. St. 2 Ed., § 12012.) § 1946. — Satisfaction of decree out of sequestered estate. Sec. 90. Upon like security being given, the court, when a sequestration shall have issued, may order the decree to be satisfied out of the estate and effects sequestered; but if such security shall not be given, the estate and effects sequestered shall remain under the direction of the court, to abide its further order. (C. L. '97, § 495, How. Ann. St. 2 Ed., § 12013.) § 1947. — Appearance after decree. Sec. 91. If the defendant against whom such decree shall have been made, unless such decree shall be a decree of divorce, or his representatives, shall afterward appear and peti- tion to be heard, the party so petitioning shall be ad- mitted to answer. the complainant's bill upon paying or securing to be paid such costs as the court shall adjudge, MICHIGAN STATUTES AND RULES 1309 and the suit shall then proceed in like manner as if such defendant had appeared in due season and no decree had heen made. (C. L. '97, § 496, How. Ann. St. 2 Ed., § 12014.) § 1948. — Time for appearance. Sec. 92. The defend- ant, or his representatives, must so appear within one year after notice in writing of the decree shall have been given to him or them, and within seven years after the making of the decree, when such notice shall not be given. (C. L. '97, § 497, How. Ann. St. 2 Ed., § 12015.) § 1949. — Confirmation of decree. Sec. 93. If the de- fendant 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 just and reasonable. (C. L. '97, § 498, How. Ann. St. 2 Ed., § 12016.) § 1950. — Decree for sale on bill for foreclosure. Sec. 94. If the bill shall have been filed to procure the fore- closure and satisfaction of a mortgage, the court, in- stead of proceeding to a sequestration in the manner hereinbefore directed, may decree a sale of the mort- gaged premises, or of such part thereof as may be neces- sary to discharge the mortgage, and the costs of suit, as in other cases. (C. L. '97, § 499, How. Ann. St. 2 Ed., § 12017.) § 1951. — Proceeding's where defendant appears before sale. Sec. 95. In the case mentioned in the last pre- ceding section, 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 defendant had been served with process, and had regularly appeared. (C. L. '97, § 500, How. Ann. St. 2 Ed., § 12018.) § 1952. — Appearance of defendant not to affect sale. 1310 EQUITY PRACTICE Sec. 96. 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 rep- resentatives may, at any time within seven years after the decree ordering such sale, file a bill against the com- plainant or his representatives, to account for all moneys received 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. (C. L. '97, § 501, How. Ann. St. 2 Ed., § 12019.) § 1953. Injunction to stay proceedings at law — Bond. Sec. 97. No injunction shall issue to stay the trial of any personal action in a coi;irt of law, until the party applying therefor shall execute a bond with one or more sufficient sureties, to the plaintiff in such action at law, in such sum as the circuit judge or other officer allow- ing the injunction shall direct, conditioned for the pay- ment to the said 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 injunction, in such action at law, for debt or damages, and for costs therein; and also for the payment of such costs as may be awarded to them in the court in chancery, in the suit in which such injunc- tion shall issue. (0. L. '97, § 502, How. Ann. St. 2 Ed., § 12020.) § 1954. — Deposit before issuance. Sec. 98. No in- junction shall issue to stay proceedings at law in any personal action, after verdict, and before judgment there- on, unless a sum of money equal to the amount for which the verdict was given, shall be first deposited with the court from which the injunction issues, by the party applying for such injunction, or a bond for the payment thereof shall be given as hereinafter directed. (C. L. '97, § 503, How. Ann. St. 2 Ed., § 12021.) § 1955. — To stay proceedings after judgment in per- MICHIGAN STATUTES AND RULES 1311 sonal action. Sec. 99. No injunction shall issue to stay proceedings at law in any personal action, after judg- ment, unless: 1. A sum of money equal to the full amount of such judgment, including costs, shall be first deposited by the party applying for such injunction, or a bond in lieu thereof be given as hereinafter directed; and, 2. Unless such party, in addition to such deposit or bond in lieu thereof, shall also execute a bond with one or more sufficient sureties, to the plaintiff in such judg- ment, in such sum as the circuit judge or officer allowing the injunction shall direct, conditioned for the payment to the said plaintiff, or his legal representatives, of all such damages, and costs, as may be awarded to them by the court, at the final hearing of the cause. (C. L. '97, § 504, How. Ann. St. 2 Ed., § 12022.) § 1956. — Payment of deposit to plaintiff in action at law. Sec. 100. If, after a verdict or judgment at law, any moneys shall be deposited in the court pursuant to either of the two last sections, the same may be paid, on the order of the court, to the plaintiff in such action at law upon his executing to the people of this state a bond, in a penalty double the amount so de- posited, with such sureties as the court shall approve, conditioned that such plaintiff will pay to the register with whom the bill shall be filed, the moneys which hp shall so receive, and the interest thereon, or any part thereof, according to any order or decree of the court, that may be made in relation to the same. (C. L. '97, § 505, How. Ann. St. 2 Ed., § 12023.) § 1957. — Proceedings where adverse decision after payment. Sec. 101. Whenever the moneys so deposited shall be paid the plaintiff in the action at law, if the final decision of the cause in chancery shall be against the party obtaining the injunction, the circuit judge may order the bond that shall have been given to be canceled, and shall continue the injunction to stay the proceedings at law, or shall compel the plaintiff therein to cause such judgment to be satisfied and dis- 1312 EQUITY PRACTICE charged of record. (C. L. '97, § 506, How. Ann. St. 2 Ed., § 12024.) § 1958. — To stay proceedings for recovery of lands. Sec. 102. No injunction shall issue to stay proceed- ings at law, in any action for the recovery of lands, or of the possession thereof, after verdict, unless the party applying therefor shall execute a bond, with one or more sureties to the plaintiff in such action at law, in such sum as the circuit judge or officer allowing the injunction shall direct, conditioned for the payment to the plaintiff in such action, and 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. (C. L. '97, § 507, How. Ann. St. 2 Ed., § 12025.) § 1959. — Damages on dissolution. Sec. 103. The damages to be paid upon the dissolution of such injunc- tion, shall be ascertained by reference to a master, or in such manner as the court shall direct, and shall include not only the reasonable rents and profits of the lands recovered by such verdict, but all waste committed there- on after the granting of the injunction. (C. L. '97, § 508, How. Ann. St. 2 Ed., § 12026.) § 1960. — When bond taken in lieu of deposit. Sec. 104. The circuit judge shall have power to dispense with any deposit of moneys required by either of the preceding sections, and in lieu thereof to direct the ex- ecution of a bond, with sureties, conditioned to pay the amount so required to be deposited, whenever ordered by the court; or, if a bond is already required in addi- tion to such deposits, then to direct the enlargement of the penalty and condition of such bond as may be requisite; but whenever such deposit shall be dispensed with, the bond so substituted or enlarged, shall be ex- ecuted by at least two sufficient sureties. (C. L. '97, § 509, How. Ann. St. 2 Ed., § 12027.) § 1961. — When deposit and bond dispensed with. Sec. 105. Whenever an injunction shall be applied for, to stay proceedings at law in an action after judgment MICHIGAN STATUTES AND RULES 1313 or verdict, on the ground tliat such judgment or verdict was obtained by actual fraud, the circuit judge or offi- cer granting the injunction shall have power to dispense with the deposit of any moneys, or the execution of any bond. (C. L. '97, § 510, How. Ann. St. 2 Ed., § 12028.) § 1962. — Ascertaining sufficiency of sureties. Sec. 106. The sufficiency of the sureties in any bond ex- ecuted under the provisions of this chapter, relating to staying proceedings at law by injunction, shall be ascer- tained, either: 1. By the certificate of any master in chancery of the proper county, stating that he has inquired into the circumstances of such sureties, and is satisfied of their sufficiency; or, 2. By the affidavit of such surety, stating that he is a householder, resident within this state, and that he is worth a sum equal to the amount in which the bond shall have been required, over and above all debts and demands against him. (C. L. '97, § 511, How. Ann. St. 2 Ed., § 12029.) § 1963. — Filing of bond. Sec. 107. "Whenever a bond shall be required to be executed, as aforesaid, prior to the issuing of an injunction, the same, with the cer- tificate or affidavit above required, shall be filed with the register, before the sealing and delivery of the in- junction. (C. L. '97, § 512, How. Ann. St. 2 Ed., § 12030.) §1964. —Prosecution of bond. Sec. 108. The cir- cuit judge shall direct the delivery of any such bond to the person entitled to the benefit thereof, for prosecution, whenever the condition of such bond shall be broken, or the circumstances of the case shall require such delivery. (C. L. '97, § 513, How. Ann. St. 2 Ed., § 12031.) § 1965. — Power to grant injunctions. Sec. 109. The circuit judges, and each injunction master within the circuit for which he may be appointed, shall severally have power to grant injunctions to stay proceedings at law. (C. L. '97, § 514, How. Ann. St. 2 Ed., § 12032.) 1314 EQUITY PRACTICE Powers and Pkocbbdings of Circuit Courts in Chancery, Upon Bills for the Foreclosure or Satis- faction OF Mortgages § 1966. Venue. Sec. 110. All bills for the foreclosure or satisfaction of mortgages shall be filed in the circuit court in chancery of the county where the mortgaged premises, or any part thereof, are situated. (C. L. '97, § 515, How. Ann. St. 2 Ed., § 12033.) § 1967. Power of court to decree sale of mortgaged premises. Sec. 111. Whenever a bill shall be filed for the foreclosure or satisfaction of a mortgage, the court shall have power to decree a sale of the, mortgaged premises, or such part thereof as may be sufficient to discharge the amount due on the mortgage, and the costs of suit; but the circuit judge shall not, by such decree, order any lands to be sold within six months after the filing of the bill of foreclosure : Provided, That if the mortgagor, his heirs, executors, administrators or any person lawfully claiming from or under him or them shall, within six months from the time of such sale, re- deem the entire premises sold, by paying to the pur- chaser, his executors, administrators or assigns, or to the register of deeds in whose office such deed is de- posited as provided by section one hundred eighteen, for the benefit of such purchaser, the sum which was bid therefor, with interest from the time of the sale at the rate per cent borne by the mortgage, not exceeding eight per cent per annum, and in case such payment is made to the register of deeds, the sum of one dollar as a fee for the care and custody of such redemption money, then such deed shall be void and of no effect, but in case any distinct lot or parcel separately sold shall be redeemed, leaving a portion of the premises unredeemed, then such deed shall be inoperative merely to the parcel or parcels so redeemed, and to those portions not so redeemed shall remain valid and of full effect. (C. L. '97, § 516, How. Ann. St. 2 Ed., § 12034.) § 1968. Court may compel delivery of possession, and direct payment of balance. Sec. 112. When a bill shall MICHIGAN STATUTES AND RULES 1315 be filed for the satisfaction of a mortgage, the court shall not only have power to decree and compel the de- livery of the possession of the premises to the purchaser 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 iliortgagor of any balance of the mortgage debt that may remain unsatisfied after a sale of the mortgaged premises, in the cases 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. (C. L. '97, § 517, How. Ann. St. 2 Ed., § 12035.) § 1969. No proceedings to be had at law while bill pending, etc. Sec. 113. After such bill shall be filed, while the same is pending, and after a decree rendered thereon, no proceedings whatever shall be had at law for the recovery of the debt secured by the mortgage, or any part thereof, unless authorized by the court. (C. L. '97, § 518, How. Ann. St. 2 Ed., § 12036.) §1970. When court may decree payment of balance against other person than mortgagee. Sec. 114. If the mortgage debt be secured by the obligation or other. evi- dence of debt of any other person besides the mort- gagor, the complainant may make such person a party to the bill, and the court may decree payment 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. (C. L. '97, § 519, How. Ann. St. 2 Ed., § 12037.) § 1971. Bill to state whether any proceeding had at law. Sec. 115. Upon filing a bill for the foreclosure or satisfaction of a mortgage, the complainant shall state therein whether any proceedings have been had at law for the recovery of the debt secured thereby, or any part thereof, and whether such debt, or any part there- of, has been collected or paid. (C. L. '97, § 520, How. Ann. St. 2 Ed., § 12038.) § 1972. If judgment has been obtained at law, no pro- ceedings to be had, unless execution returned unsatisfied. 1316 EQUITY PRACTICE Sec. 116. If it appear that any judgment has been obtained in a suit at law, for the moneys demanded by such bill, or any part thereof, no proceedings shall be had in such case, 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- 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. (C. L. '97, § 521, How. Ann. St. 2 Ed., § 12039.) § 1973. Sales, how made. Sec. 117. All sales of mort- gaged premises, under a decree in chancery, shall be made by a circuit court commissioner of the county in which the decree was rendered, or the land or some part thereof is situated, or by some other person duly author- ized 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 court house, or place of holding the circuit court in the county in which such estate or some part thereof is situated, or at such other place as the court shall direct. (C. L. '97, § 522, How. Ann. St. 2 Ed., § 12040.) § 1974. Form of deeds executed on sale of property — Where deposited — How recorded — Duties of register of deeds in case of redemption — ^When deeds to become operative. Sec. 118. Deeds shall thereupon be executed by such circuit court commissioner or other person mak- ing such sale specifying the names of the parties in the suit, the date of the mortgage, when and where recorded, with a description of the premises sold, and the amount for which each parcel of land therein described was sold, and he shall indorse upon each deed the time when the same will become operative in case the premises are not redeemed according to law, such deed or deeds shall as soon as practicable, and within twenty days after such sale be deposited with the register of deeds of the county in which the land therein described is situated, and the register shall indorse thereon the time the same was re- ceived; and for the better preservation thereof, shall record the same at length in a book to be provided in his MICHIGAN STATUTES AND RULES 1317 office for that purpose and shall index the same in the reg- ular index of deeds, and the fee for recording the same shall be included among the other costs and the expenses allowed by law. In case such premises or any parcel thereof shall be redeemed the register of deeds shall write on the face of such record the word "Redeemed," stating at what date such entry is made and signing such entry with his official signature. Unless the premises described in such deed or any parcel thereof shall be redeemed within the time limited for such redemption as herein provided, such deed shall thereupon as to all par- cels not so redeemed become operative, and shall vest in the grantee therein named, his heirs or assigns, all the right, title and interest which the mortgagor had at the time of the execution of the mortgage, or at any time thereafter. (C. L. '97, § 523, How. Ann. St. 2 Ed., § 12041.) § 1975, Application of proceeds of sale. Sec. 119. The proceeds of every sale made under a decree in chancery, shall be applied to- the discharge of the debt adjudged by such court to be due, and of the costs awarded; and if there be any surplus, it shall be brought into court for the use of the defendant, or of the person entitled thereto, subject to the order of the court. (C. L. '97, § 524, How. Ann. St. 2 Ed., § 12042.) § 1976. When surplus may be put out at interest. Sec. 120. If such surplus, or any part thereof, shall remain in the said court for the term of three months without being applied for, the circuit judge may direct the same to be put out at interest, under the direction of the court, for the benefit of the defendant, his representatives or assigns, to be paid to them by the order of such court. (C. L. '97, § 525, How. Ann. St. 2 Ed., § 12043.) § 1977. When bill to be dismissed on payment of amount due and costs. Sec. 121. "Whenever a bill shall be filed for the satisfaction or foreclosure of any mortgage, upon which there shall be due any interest, or any por- tion or installment of the principal, and there shall be other portions or installments to become due subse- quently, the bill shall be dismissed upon the defendant's bringing into court, at any time before the decree of 1318 EQUITY PRACTICE sale, the principal and interest due, with costs. (C. L. '97, § 526, How. Ann. St. 2 Ed., § 12044.) § 1978. When proceedings to be stayed on payment of amount due, etc. Sec. 122. 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 subsequent default in the payment of any portion or installment of the prin- cipal, or of any interest thereafter to grow due. (C. L. '97, § 527, How Ann. St. 2 Ed., § 12045.) § 1979. Reference in case of decrees for complainant in certain cases. Sec. 123. 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 master, to ascertain and re- port 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, with- out injury to the interests of the parties, the decree shall direct so much of the mortgaged premises to be sold, as will be sufficient to pay the amount then due on such mortgage, with costs; and such decree shall remain as security for any subsequent default. (C. L. '97, § 528, How. Ann. St. 2 Ed., § 12046.) § 1980. Proceedings in case of default subsequent to decree. Sec. 124. If, in the case mentioned in the pre- ceding section, there shall be any default subsequent to such decree, in the payment of any portion or install- ment of the principal, or of any interest due upon such mortgage, the court may, upon the petition of the com- plainant, by a further order founded upon such first de- cree, direct a sale of so much of the mortgaged premises to be made under such decree, as will be sufficient to satisfy the amount so due, with the costs of such peti- tion and the subsequent proceedings thereon, and the same proceedings may be had, as often as a default shall happen. (C. L. '97, § 529, How. Ann. St. 2 Ed., § 12047.) § 1981. When whole of premises to be sold in the first MICHIGAN STATUTES AND RULES 1319 instance. Sec. 125. If, in any of the foregoing cases, 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 accordingly. (C. L. '97, § 530, How. Ann. St. 2 Ed., § 12048.) § 1982. In case of sale of whole premises, how proceeds applied. Sec. 126. In such case the proceeds of such sale shall be applied as well to the interest, portion or installment 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 sum due with costs, to be put out at interest, for the benefit of the com- plainant, to be paid to him, as the installments, or por- tions of the principal, or the interest, may become due, and the surplus for the benefit of the defendant, his rep- resentatives or assigns, to be paid to them on the order of the court. (C. L. '97, § 531, How. Ann. St. 2 Ed., § 12049.) Attthoeity of Supreme Coxjet Justice to Exercise Chan- cery POWEES § 1983. Proceedings when circuit judge disqualified. Sec. 142. "Whenever the circuit judge shall be a party to a suit in a court of chancery in his judicial circuit, or re- lated to any party to such suit, or in any way interested in the event thereof, or whenever he has Taeen solicitor or counsel for either party in any such cause, the bill or petition shall be addressed to some other justice of the supreme court, who shall hold the court of chancery of the proper county for the trial and determination there- of, and shall have and exercise all the powers of the proper circuit judge in relation to such causes; and ap- peals may be taken therein as in other cases. (C. L. '97, § 548, How. Ann. St. 2 Ed., § 12069.) 1320 EQUITY PRACTICE • Appeals to Supeeme Cotjet § 1984. Right to appeal— Time. Section 1. Any com- plainant or defendant, who may consider himself ag- grieved by an order sustaining or 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: Provided, That when an appeal is taken from an order sustaining or overruling a general demur- rer the case shall, upon decision thereof by the supreme court, be remanded to the circuit court in chancery, and the complainant may amend his bill of complaint or the defendant may file his answer, as the case may be, with- in such time as the supreme Court may prescribe, and the cause shall then be disposed of as though no appeal had been taken: Provided further, That where there are two or more defendants a portion of whom only demur, all proceedings shall be stayed as to the other defend- ants, except filing and serving pleadings, until such de- murrer is finally disposed of. (Pub. Acts 1909, No. 299, How. Ann. St. 2 Ed., § 12071.) § 1985. Claim of appeal — Filing. Sec. 2. Any party desiring to appeal from the order or decree of the cir- cuit 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 commissioner, 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 ap- peal 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 sus- taining 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 the complainant to amend or defendant to answer the bill of complaint: Provided further. That when any order or decree is entered in vacation, the time for taking an appeal shall be computed from the time of the service of notice of MICHIGAN STATUTES AND RULES 1321 such decree as provided by law. (Pub. Acts 1909, No. 299, How. Ann. St. 2 Ed., § 12072.) § 1986. Extension of time. Sec. 3. The circuit court in which such 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 taking or perfecting any ap- peal: 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 and perfected 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, when any party has been prevented from tak- ing such appeal by circumstances bej'ond his control. Such extension shall only be made on special motion and after a proper showing. (Pub. Acts 1909, No. 299, How. Ann. St. 2 Ed., § 12073.) § 1987. Stay of proceedings — Bond. Sec. 4. No appeal shall operate to stay proceedings in said cause, unless the party taking such appeal shall, within the time al- lowed for perfecting such appeal, file with the register of said court a bond to the appellee or appellees with sufficient surety or sureties to be approved by the cir- cuit 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 fore- closure of a mortgage or land contract, the further con- dition of the bond shall be to pay to the appellee the damages which may result to the appellee 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 fore- closure of land contract shall be computed as starting within six weeks from the date of the decree which may 1322 EQUITY PRACTICE be appealed from, and, in 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 application for the approval of such bond shall be given to the ap- pellee 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 ap- plication such appellee or appellees shall be heard as to the sufficiency of the penalty named in and the re- sponsibility of the sureties proposed to such bond: Provided, That in case such bond be approved by a cir- cuit court commissioner, the circuit court in which such decree or final order was rendered or the judge of such court at chambers 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 justice thereof may on special motion and proper show- ing after such appeal has been perfected, order an addi- tional bond and fix the penalty thereof and approve the sureties thereto. (Pub. Acts 1909, No. 299, as amended 1911, No. 160, How. Ann. St. 2 Ed., § 12074.) § 1988. Evidence. Sec. 5. The evidence, if any, taken on the hearing on said cause in open court or before a circuit court commissioner or by deposition, or in any other manner, shall be settled for review as provided by the rules of the court. (Pub. Acts 1909, No. 299, How. Ann. St. 2 Ed., § 12075.) § 1989. Time for perfecting— Bond. Sec. 6. No stay of proceedings upon any final order or decree ren- dered in any circuit court in chancery shall hereafter be granted or allowed for the purpose of settling 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. MICHIGAN STATUTES AND RULES 1323 shall execute to the. adverse party a bond with sufficient surety or sureties in such sum as the circuit judge before whom the case was tried shall designate, conditioned for the performance and satisfaction of such decree or final order if the same be not set aside or reversed, and that if an appeal be taken from such decree or order, the ap- pellant shall prosecute such appeal to effect, and shall perform and satisfy such decree as shall be rendered against him thereon. 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 ap- pellee the damages which may result to the appellee 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 computed as start- ing within six weeks from the date of the decree which may be appealed from, and in the foreclosure of mort- gages, 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 reasonable 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. (Pub. Acts 1909, No. 299, as amended 1911, No. 160, How. Ann. St. 2 Ed., §12076.) § 1990. Duty of register. Sec. 7. It shall be the duty of the register of such court, upon payment to him of the Whitehouse B. P. Vol. 11—28 1324 EQUITY PRACTICE sum of five dollars as his fees, by the appellant, to attach together the original bill, process, answer, replication and all other proceedings, processes, 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 hereinbefore mentioned, and trans- mit the same, together with his certificates of the gen- uineness 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. (Pub. Acts 1909, No. 299, How. Ann. St. 2 Ed., § 12077.) § 1991. Powers of supreme court in appeal. Sec. 147. Upon any order or decree of the circuit court in chan- cery being brought by appeal to the supreme court, that court shall examine all errors that may be assigned or found in such order or decree, and shall hear and de- termine such appeal, and all matters concerning the same, and shall have power to reverse, affirm or alter such order or decree, and to make such other order or decree therein, as shall be just. (C. L. '97, § 553, How. Ann. St. 2 Ed., § 12079.) § 1992. Records to be remitted. Sec. 148. When an ap- peal shall have been so heard and determined, the records and files sent from the circuit courts in chancery, to- gether with the proceedings and decree or order of the supreme court therein, and all things concerning the same shall be remitted to the circuit court in chancery, for the proper county, when such further proceedings shall be thereupon had as may be necessary to carry such decree or order into effect. (C. L. '97, § 554, How. Ann. St. 2 Ed., § 12080.) Allowance op Injunctions by Ciecuit Judges op Ad- joining Judicial Districts § 1993. Powers. Section 1. In case the circuit judge of any circuit, and the other officers of any county author- ■ ized to grant injunctions, are absent, sick, or in any man- MICHIGAN STATUTES AND RULES 1325 ner disqualified from ordering or allowing an injunction in any case pending or about to be commenced in such circuit or county, upon due proofs of such facts by affi- davit, the circuit 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 injunction is allowed, as aforesaid, the judge order- ing the same shall have concurrent jurisdiction to modify or dissolve the same with the presiding judge of the cir- cuit wherein such suit is pending. (C. L. '97, § 555, How. Ann. St. 2 Ed., § 12081.) Signing of Decbees, Records and Journals op Courts of Record § 1994. Power of successor of judge to sign. Section 1. When any judge shall have failed or omitted to sign any decree by him passed, or any record or journal of a court held by him, his successor, or any other judge holding the same court, may sign such decree, record or journal, 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. (C. L. '97, § 556, How. Ann. St. 2 Ed., § 12610.) § 1995. Recording decrees of former courts. Sec. 2. 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 reg- ister 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. (C. L. '97, § 557, How. Ann. St. 2 Ed., § 12611.) 1326 EQUITY PRACTICE Time fob Rendition of Opinion § 1996. Opinion on final hearing — When to be rendered. Section 1. Hereafter in all cases in chancery that have been commenced or hereafter to be commenced in any of the courts of this state, when the same are finally heard upon proofs submitted and arguments of counsel, the cir- cuit judges shall within six months after the same have been finally submitted, render an opinion therein. (C. L. '97, § 558, How. Ann. St. 2 Ed., § 12070.) § 1997. Decision of court — When given. Sec. 2. Upon the trial of a question of fact by the court, without a jury, the decision of the court shall be given, on or be- fore the first day of the term succeeding that in which the cause was submitted, and if given in vacation, shall be in writing, and filed with the clerk, and upon the trial of any question at law, or the hearing of any suit in chancery, or any incidental issue arising therefrom, the court shall render his decision thereon within one year from the time such motion or cause was submitted to him. (C. L. '97, § 10260, How. Ann. St. 2 Ed., § 11842.) Entey op Decrees in Vacation § 1998. Circuit judge may transmit judgment in vaca- tion — Clerk or register to enter same. Sec. 6. In all civil causes submitted to any circuit court in term time for decision, it shall be competent for the circuit judge to transmit to the clerk or register of such court in vacation, his judgment, order or decree in said cause, specifying in judgment at law the facts found, and the conclusions of law thereon; and thereupon it shall be the duty of the clerk or register to enter in the proper record such judgment, order, or decree, as of the last day of the pre- ceding term ; which judgment, order, or decree, shall have the same force and effect as if rendered in term time, and execution may issue thereupon as in other cases. (C. L. '97, § 10264, How. Ann. St. 2 Ed., § 11846.) § 1999. Notice of entry to be given. Sec. 7. Notice of the entry of such judgment, order, or decree, shall be given by the clerk or register, in such manner as the cir- MICHIGAN STATUTES AND RULES 1H27 cuit court shall, by general or special order direct, to the parties, their attorneys or solicitors. (C. L. '97, § 10265, How. Ann. St. 2 Ed., § 11847.) § 2000. Orders in vacation-time, how computed when writ of error or appeal is taken. Sec. 8. The time pre- scribed by law within which a writ of error or appeal is to be taken, shall, when the judgment or decree is rendered in vacation, be computed from the day when such judgment or decree shall be actually entered by the clerk or register. (C. L. '97, § 10266, How. Ann. St. 2 Ed., § 11848.) Teansfee oe Causes eeom One Ciectjit to Anothee § 2001. Where judge is interested, suit may be transr ferred to another circuit. Section 1. Whenever any civil suit or proceeding shall be pending in any circuit court in this state, either on the law or equity side of said court, in which the judge of said court shall be inter- ested as a party, or as a member of any corporation which is a party to said suit, or has heretofore been consulted or employed as counsel in the subject matter to be liti- gated in said suit, or in which he would be excluded from sitting as a juror by reason of consanguinity or affinity to any party to said suit, the same may be transferred to some other circuit court in the manner provided by this act. (C. L. '97, § 10105, How. Ann. St. 2 Ed., § 11851.) § 2002. Application for transfer of suit. Sec. 2. Any party desiring to transfer any such suit or proceeding as hereinbefore mentioned, may apply to the judge of any adjoining circuit, who is not within the disqualifications mentioned in the first section of this act, for an order to transfer such suit; such application shall be in writ- ing and shall set forth specifically the grounds for such transfer. The parties to any such suit may, by stipula- tion in writing, consent to the transfer of such suit or proceeding without any application to the judge, in which case the stipulation shall have the same effect as an order duly made for such transfer under the provisions of this act. (C. L. '97, § 10106, How. Ann. St. 2 Ed., § 11852.) 1328 EQUITY PRACTICE § 2003. Judge to appoint time of hearing application. Sec. 3. On receiving such application, the judge shall appoint a time and place of heai'ing the same, and shall from time to time, as may be necessary, direct the man- ner in which notice of such hearing shall be given to all parties interested in such application. (C. L. '97, § 10107, How. Ann. St. 2 Ed., § 11853.) § 2004. When judge to grant order for transfer. Sec. 4. On the day appointed for such hearing or on some other day to which said hearing may be adjourned, when it shall appear that the notice of such hearing has been duly given, the judge shall proceed to hear and determine the application for such transfer, and for this purpose may issue subpoenas for witnesses, and require their attendance as in other cases, and he shall hear the proofs and allegations of the parties touching the application be- fore him, and if he shall be satisfied that the judge of the circuit court where such suit is pending is disqualified to sit in said cause within the intent and meaning of the first section of this act, he shall grant an order for the transfer of said cause or proceeding to the circuit court of some other county, which county shall be specified in said order. (C. L. '97, § 10108, How. Ann. St. 2 Ed., § 11854.) § 2005. In case parties agree on court — In case no agree- ment reached. Sec. 5. In case the parties to said suit or proceeding shall by stipulation in writing or otherwise agree upon the circuit court of the county to which said cause shall be transferred, said circuit judge shall make an order of transfer in accordance therewith; but if no such agreement be reached said judge shall hear such proofs as may be offered by the parties, and such suit or proceeding shall be transferred to the circuit court of the county in which the same can be tried with the most convenience, expedition and economy to the parties inter- ested, and in which the circuit judge shall not be dis- qualified to sit within the provisions of the first section of this act. (C. L. '97, § 10109, How. Ann. St. 2 Ed., § 11855.) §2006. Jurisdiction of court to which case assigned. MICHIGAN STATUTES AND RULES 1329 Sec. 6. On filing the order of the judge granted as afore- said in which the proceedings before said judge shall be briefly recited, with the clerk or register of the court to which said suit or proceeding is by said order directed to be transferred, the said court shall have jurisdiction of the same to the same extent as if said cause or pro- ceeding had been legally commenced in said court and may grant such orders as may be necessary to procure the transfer of the existing files and orders in said cause or proceeding to said court, and to cause due notice of such transfer to be made. (C. L. '97, § 10110, How. Ann. St. 2 Ed., § 11856.) § 2007. Clerk to transfer papers with copy of records, etc. Sec. 7. Upon delivering to the clerk or register of the court where said cause or proceeding was pending before said transfer, a copy of said order of transfer duly certified by the clerk or register of the court in which said order shall be filed, the said clerk or register, to whom said certified copy shall be delivered, shall attach together the originals of all the papers filed in said suit or proceeding, and shall make true copies of all the orders made therein, and which are entered upon books of record in said court, and shall transmit the same, cer- tified under his hand and seal to be the originals of such files and true copies of such orders, to the clerk or reg- ister of the court in which said order of transfer shall have been filed ; which files and copies, when so filed and deposited in the office of the clerk or register to whom said transfer is to be made, shall have the same force and effect in all respects, and shall be subject to the rules and orders of said court as other original proceedings therein. (C. L. '97, § 10111, How. Ann. St. 2 Ed., § 11857.) § 2008. Fees of clerk and register on transfer. Sec. 8. The clerk or register, who shall be required under the provisions of this act to transmit the files and orders in any cause or proceeding, as herein provided, shall be entitled to six cents per folio for all copies of orders and proceedings which shall be necessarily made, and one dol- lar in addition thereto, which shall be in full for all 1330 EQUITY PRACTICE services rendered under this act. (C. L, '97, § 10112, How. Ann. St. 2 Ed., § 11858.) Powers and Duties of Circuit Courts §2009. Circuit courts, when in session — Try and de- termine issues of law and fact — Habeas corpus and other remedies. Section 1. The several circuit courts, superior courts and circuit courts in chancery of this state shall on all lawful days and times be deemed to be in actual session, from the first day of one term until the first day of the next succeeding term thereof, notwithstanding the formal adjournment of any regular or special term of said courts, with full power and authority to hear, try and determine, without a jury, all issues of either fact or law, with, the consent of the parties thereto given in open court, or by stipulation or agreement filed in said court in said cause between said parties consenting thereto; to hear, try and determine all matters of habeas corpus, certiorari, mandamus, applications for and motions for the dissolution of injunctions, application for appoint- ment of receivers, and the discharge thereof; and all other matters and proceedings within the jurisdiction of said courts at any regular term and session thereof, upon either the usual notice, or by the consent of parties in open court, as well as to hear and determine all ex parte applications of every nature, or within the jurisdiction of said courts: Provided, That the regularly elected and qualified judge of the circuit or any other circuit judge of this state duly authorized to act shall be present and acting. (Pub. Acts 1909, No. 315, How. Ann. St. 2 Ed., § 12612.) Circuit Court Commissioners § 2010. Commissioner to discharge duties of master in chancery. Sec. 16. The several circuit court commis- sioners shall, within their respective counties, be compe- tent to discharge all such duties as have heretofore been performed by masters in chancery in this state, accord- ing to the practice in chancery proceedings, and all such other powers as shall be conferred upon them by the sev- MICHIGAN STATUTES AND EULBS 1331 eral circuit courts according to law, and shall be amen- able to the circuit courts within the jurisdiction and under the orders of which, they may respectively act : Provided, however, that testimony to be used in any circuit court in chancery may be taken before a justice of the peace or notary public, if the parties interested, their agents or attorney, shall enter into a stipulation to that effect, in writing, and file the same with the clerk of the circuit court of the proper county. (C. L. '97, § 1079, How. Ann. St. 2 Ed., § 12513.) Sebvice on Corporations in Chancery § 2011. Process in chancery cases may be served same as in actions at law. Section 1. Process issued from circuit courts in chancery may be served upon corporations in the same manner as is or may be provided by law for service upon such corporations of process in actions at law. (C. L. '97, § 10023, How. Ann. St. 2 Ed., § 13557.) Depositions § 2012. Testimony of any witness may be taken by de- position, when — Deposition may be taken before any judge, etc., not interested — Seal — Notice to be given be- fore deposition is taken — Any person may be compelled to appear and depose. Section 1. The testimony of any wit- ness may be taken by deposition de bene esse, in any civil cause or matter, begun or pending in any court of record, at law or in chancery, or before any probate court, or commissioners on claims appointed by any probate court, or arbitrators, referees or circuit court commissioner, or justice of the peace in the State of Michigan, or in any other civil proceeding, when the witness is or is about to go or resides out of the State of Michigan, or is about to go, or reside more than fifty miles from the place of trial, or beyond the jurisdiction of the court ; or when the wit- ness is sick, aged or infirm, or where there is reasonable cause for apprehension that his testimony cannot be had at the trial of the cause, or where it is needed for use on hearing of motions, petitions, proceedings for injunctions, or upon any other interlocutory or other proceeding prior 1332 EQUITY PRACTICE to final hearing of any cause ; and in all cases where affi- davits are permitted to be used in proceedings before the court; also when it is desired to take conditionally and perpetuate testimony in suits to be begun; and in any other case not above provided for when it shall appear to the court or judge thereof that the purposes of justice will be aided thereby. The deposition may be taken before any judge of any court of the United States, or of any state of the United States, or of any foreign country, or before any commissioner of a circuit court in Michigan, or of the United States, or of any state, or any commis- sioner for Michigan, or any consul, or consular officer, justice of the peace, officer, or notary public, authorized by the laws of this state, or of any other state, or of the United States, or by the laws of any foreign country, to administer oaths, not being of counsel or attorney for either of the parties, nor interested in the event of the cause. The seal of such court or official, or a certificate of such authority, given tmder the seal of any court of record, shall be prima facie evidence of authority to act. Reasonable notice must first be given in writing by the party, his attorney or solicitor, proposing to take such deposition, to the opposite party, or his attorney of record, which notice shall state the name of the witness or wit- nesses, and the time and place of taking his deposition, and the name of the official before whom the same will be taken, and in all cases in rem, attachment or replevin, the person having the agency or possession of the prop- erty at the time of seizure, shall be deemed the adverse party until a claim shall have been put in or appearance entered in the cause; and whenever, by reason of the ab- sence from the jurisdiction of the party, or want of an opposite attorney of record, or other reason, the giving of the notice herein required shall be impracticable, it shall be lawful to take such depositions as there shall be urgent necessity for taking, upon such notice as any judge authorized to hold courts within the jurisdiction where the suit is begun, shall think reasonable, and direct. Any person may be compelled to appear and depose as pro- vided by this act, by the order or process of any court MICHIGAN STATUTES AND RULES 1333 and to produce books and papers in the same manner as witnesses may be compelled to appear and testify in court. (C. L. '97, § 10186, How. Ann. St. 2 Ed., § 12780.) § 2013. When deposition of witness may be taken under commission — Written interrogatories may be attached to commission. Sec. 2. In any case where the deposition of a witness can be taken upon notice, his deposition may instead be taken under commission, upon which section four of this act shall be printed, and any circuit court commissioner in the State of Michigan, or the court in which such proceeding is begun or pending, or the judge, clerk or register thereof, or in any case pending before a justice of the peace, such justice shall upon affidavit showing reason therefor, issue a commission (upon which shall be printed section four of this act) for the taking of the testimony of such witness before any person therein appointed as commissioner. Written interrogatories to be put to such witness by such commissioner, may be at- tached to the commission ; if attached, a copy thereof shall be attached to the notice which shall in any case be given to the opposite party or his attorney or solicitor, of the time and place of taking testimony under such commis- sion. Cross and re-direct interrogatories, which it is de- sired the commissioner shall put to the witness, shall thereupon be promptly furnished to the respective par- ties, and to such commissioner. "Where default or order pro confesso has been entered in the cause, notices shall not be necessary. (C. L. '97, § 10137, How. Ann. St. 2 Ed., § 12781.) § 2014. Courts shall have power to compel attendance of witnesses. Sec. 3. Courts of record of this state shall have the power to compel the attendance of witnesses and the giving of their testimony, and the production of books, papers and other evidences, before commissioners or persons authorized to take testimony and also under commissions, or letters rogatory, issued out of any court of any other state, or of the United States, or of any for- eign government or country. (C. L. '97, § 10138, How. Ann. St. 2 Ed., § 12782.) § 2015. Witness shall be sworn — May be examined, 1334 EQUITY PRACTICE orally — Testimony may be written or taken stenographi- cally — Deposition to be transmitted by mail to the court — Objections to manner of taking testimony, how made. Sec. 4. Each witness shall he sworn or affirmed by the officer or person empowered to take such testimony, to tell the truth, the whole truth, and nothing but the truth, concerning the matter at issue in the cause. Every wit- ness may be examined, cross-examined and re-examined, orally, and also so examined in addition to written, direct or cross interrogatories. Examinations may be adjourned from time to time. Testimony may be written or taken stenographically and transcribed under direction of the officer so taking the same and shall be signed by the wit- ness and certified as correct by the official before whom it is taken, but signatures of witnesses may be waived in writing by agreement of parties. The deposition when taken shall be forthwith enclosed by the official before whom the same is taken, and endorsed with the title of the court and cause, and that the deposition was taken and sealed up by him, and how it is to be sent, and he shall sign the endorsement, and the same shall be transmitted by mail or otherwise, to the court in which the cause is pending, and in case such deposition is taken for use be- fore commissioners on claims appointed by any probate court, to such court, and then be opened by the court or clerk or register, and written notice thereof then given by mail or otherwise to the parties. Objections to notices of, or objections to the manner of taking the testimony, or of certifying or returning the deposition, shall be regarded as waived unless made in writing within three days after knowledge or notice of the return thereof. (C. L. '97, § 10139, How. Ann. St. 2 Ed., § 12783.) § 2016. Testimony of witness to be taken conditionally, when — When testimony under this section may be used. Sec. 5. To perpetuate testimony, any person who expects to be a party to a suit, which may thereafter be com- menced in any court of record, may cause the testimony of any witness material to him in the prosecution or de- fense of such suit, to be taken conditionally, and per- petuated, under a commission so issued by any circuit MICHIGAN STATUTES AND RULES 1335 court commissioner or judge of a court of record, upon affidavit, showing tlie necessity or reason tlierefor, and, so far as known, the persons interested in such matter. The commission shall direct upon whom notice shall be served, and to what court the deposition shall be returned, and such court shall have custody and control thereof until required for use in such suit. Testimony taken under this section may be used in case it cannot again be obtained at the time of trial. (C. L. '97, § 10140, How. Ann. St. 2 Ed. § 12784.) § 2017. Parties interested in suits may have testimony taken in any manner. Sec. 6. Parties to action and parties interested in suits to be begun may have testimony taken and returned in any manner agreed upon by stipulation in writing. (C. L. '97, § 10141, How. Ann. St. 2 Ed. § 12785.) § 2018. Court shall have power to regulate the use of depositions. Sec. 7. Depositions taken under this act may be read and considered in evidence at the trial or on any hearing, and on appeals and retrials of the same cause of action, but the court shall have power to regulate the use, to prevent abuses thereof, and may order the retaking of testimony, or the production of the witness, if within the jurisdiction, notwithstanding that his deposition has been taken. In any case, either party, may obtain subpoena and compel the usual attendance and re-examination of the witness, notwithstanding his deposition has been taken, if he is within the jurisdiction of the court and able to attend, and give his testimony in the usual way, for or at the trial. (C. L. '97, § 10142, How. Ann. St. 2 Ed., § 12786.) § 2019. Fees for taking depositions. Sec. 8. Fees for taking depositions shall be as follows: For taking, cer- tifying, sealing and forwarding depositions, two dollars ; and for each one hundred words contained in such depo- sition, ten cents, which shall be considered as costs in the case; and for copies of testimony furnished to any party, three cents for each one hundred words contained in such copy. Each party shall pay for his own examina- 1336 EQUITY PRACTICE tions or cross-examinations in the first instance. (C. L. '97, § 10143, How. Ann. St. 2 Ed., § 12787.) Evidence on Bills in Aid of Execution — Bukden of Peoof §2020. Change of rules of evidence — Complainant to introduce evidence as to judgment, etc. — Where burden of proof to rest. Section 1. In all snits begun or hereafter to be begun by the filing of bills in aid of execution, the com- plainant shall make a prima facie case by introducing in evidence the judgment against the principal defendant, the execution with the levy or levies thereon indorsed and proof of the conveyance or conveyances complained of. The burden of proof shall then be upon the judgment debtor, or the person or persons claiming through or under him or the person or persons whom it is claimed are holding property in trust for said judgment debtor to show that the transaction or transactions are in all re- spects bona fide or that such person or persons are not holding as a trustee or trustees of said judgment debtor. (C. L. '97, § 10203, How. Ann. St. 2 Ed., § 12864.) Unknown Heies as Defendants § 2021. Unknown heirs may be made defendants — Af- fidavits by complainants — Order of court. Section 1. That in all suits and proceedings in chancery, if there be per- sons interested in the same, as heirs of some person or persons deceased, whose names are unknown, it shall be lawful to make such unknown heirs parties defendant to such suit or proceeding by the name and description of unknown heirs of such deceased person. In all such cases an affidavit shall, at the time of the filing of the bill of complaint or petition, be made and filed in the office of the register in chancery of the county wherein said suit or proceeding is brought by the complainant, his agent, or solicitor, stating the name of the deceased person whose heirs are unknown, and that the names of such heirs are unknown to affiant. And if it shall appear to the satis- faction of the court, or the judge thereof, or a circuit court commissioner of the county where said suit or pro- MICHIGAN STATUTES AND RULES 1337 ceeding is brought, that such unknown heirs are necessary or proper parties to the suit or proceeding, an order shall be made by the court judge thereof, or circuit court com- missioner, as the case may be, for the appearance of such unknown heirs in said suit or proceedings, on or before a future day specified in said order: Provided, however, that said day shall not be less than six months from the date of the order. (C. L. '97, § 10446, How. Ann. St. 2 Ed., § 12082.) ■ DiSCHAEGE FROM ReCOED OF NoTICES OF PeNDBNCY OF SuiTS IN Chanceby § 2022. Certificate to be executed — Fee for filing — Duty of register of deeds. Section 1. Whenever any suit in chan- cery, notice of the pendency of which has been filed with any register of deeds, shall be, or shall have been hereto- fore dismissed, whether by stipulation, the voluntary act of the complainant on final hearing, or otherwise, it shall be the duty of the register of the court in which such suit shall have been pending, upon request of any party thereto, to execute, under his hand and the seal of said court, a certificate of the fact of such dismissal, or the solicitor for the complainant in such suit may execute a like certificate, which shall be acknowledged by said so- licitor before some officer authorized to take the acknowl- edgment of deeds. The said register of deeds, on receipt of either of such certificates, and on payment to him of a fee of twenty-five cents, shall file and preserve the same and shall record the same at length in the books provided for the registry of such notices of pendency of suits, and shall mark on the record of such notice discharged by certificate of the register of said court, naming it, or the certificate of said solicitor, naming him, as the case may be, with the date of filing such certificate, and the book and page of its record, and thereafter the effect of such notice shall cease and determine. (C. L. '97, § 9057, How. Ann. St. 2 Ed., § 12093.) Examination in Open Coubt §2023. Right — Procedure — Settlement of evidence on 1338 EQUITY PRACTICE appeal. Section 1. Either party to a cause in chancery shall have the right to an examination of all 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 examination 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 : Provided, That such notice of hearing in open court shall not deprive the court, on application of either party, of the right to make an order directing a commission to take the depositions of witnesses outside of the jurisdiction of the court, or in case where a party may be deprived of material testi- mony or rights, if such a commission is not issued; and depositions so taken under the order of the court may be read upon the hearing in open court: And provided further, That in all cases, whether the same shall be so tried in open court, or the testimony shall have been taken by deposition or before a circuit court commissioner, either party shall be entitled to make and settle a case, setting forth in substance all the evidence taken or read at the hearing, following as far as practicable the making of cases for review at law, before the judge who tried the same, at such time and in such manner as is now pro- vided by rule for the settlement of bills of exceptions in cases at law: Provided further. That in all cases where such evidence is taken by deposition or before a circuit court commissioner or by a stenographer in open court, such evidence may be settled by some other circuit judge of this state, whenever the judge who tried the case shall die, resign or vacate the office because of the expiration of his term, or for any other cause, or whenever such judge shall be unable to settle such evidence, within the time prescribed by this act, by reason of sickness, absence from the state or any other cause. And such case so made and filed within three months after the entry of the final order or decree therein, shall be deemed and held to be the evidence therein for all purposes of review on MICHIGAN STATUTES AND RULES 1339 appeal to the Supreme Court : And provided further, That the judge who tried such case, or any other circuit judge holding such court may grant an extension of the time for making and filing such case for a period not exceeding six months, from and after the date of the entry of such decree or final order: And provided further, That the judge who tried such case, or any other circuit judge holding such court, shall have power, on special motion and due cause shown and upon due notice according to the rules of said court, to the opposite party or his attor- ney, to grant an extension of the time for making and filing such case for a period not exceeding one year from and after the date of the entry of such decree or final order; that in case of the granting such extra time on cause shown as last mentioned, the judge shall require the party asking such extension to give bonds to the oppo- site party in such sum as the court m^y fix with- suffficient surety or sureties, to be approved by such judge, con- ditioned to perform the order or decree, if such appeal is not prosecuted to effect; and upon the case so made and filed as herein authorized an appeal may be taken to the Supreme Court by any of the parties to such suit as in ordinary chancery causes. (C. L. '97, § 10188, How. Ann. St. 2 Ed., § 12966.) Quieting Title §2024. Defendants, who may be made, in chancery matters — Real estate, when subject matter is. Section 1. In all suits and proceedings in chancery, if there be any person interested in the same or in the subject matter involved therein, or whose name appears in the records of any public office as having at any time claimed any right, title, interest or estate in the subject matter of the suit or any portion thereof or any lien or charge thereon without having conveyed or released the same, or who might at any time under the provisions or legal effect of any instrument of record claim or be entitled to claim any benefits thereunder, and it is not known whether such person is living or dead, or where he may reside if liv- ing, or whether the title, interest, claim, lien or possible Whitehouse B, P. Vol. II— 2 a 1340 EQUITY PRACTICE right has been by him assigned to any person or persons, or if dead whether he has personal representatives or heirs living or where they or some of them may reside, or whether such title, interest, claim, lien or possible right has been disposed of by will, it shall be lawful to make such person and every one claiming under him de- fendants in such suit or proceeding by naming such per- son and adding the words "or his unknown heirs, de- visees, legatees and assigns," which shall include and be construed to include all persons claiming in any man- ner under the person named as originally interested in such subject matter. If the subject 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 beginning such suit or proceeding. (How. Ann. St. 2 Ed., § 13345. See also § 1899, ante, p. 1297.) §2025. Who may commence proceedings — Persons proceeded against — Unknown persons, how designated — Court may require further description. Sec. 2. Proceed- ings under this act may be begun by any person, corpora- tion or partnership association claiming any vested or contingent interest, or any estate in possession, expect- ancy, 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 partnership associa- tions who may be in possession of the subject matter or who appear in any public 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 uncer- tain or ambiguous in its terms, or contains any misde- scription of the premises, or which is executed in such a manner as to make its validity doubtful or uncertain ; also against all persons, corporations or partnership asso- ciations who, by reason of any provision, limitation, re- MICHIGAN STATUTES AND RULES 1341 striction, stipulation, charge, agreement or uncertainty contained in any deed, plat, will or other instrument 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 persons in whose favor any such provision, limitation, restriction, stipula- tion, charge, agreement or uncertainty might be enforced, and such persons are unascertained or not in being, they may be made defendants in any suit or proceeding here- under, and bound by any decree made therein, by being designated as all persons who are or may become entitled to claim under the particular provision, limitation, re- striction, stipulation, charge, agreement or uncertainty set forth in the bill of complaint or petition, which shall also be set forth at length in connection with every pub- lication of every order by which notice is given to defend- ants in such class of the pendency of the suit or proceed- ing. The court may require the moving party by amendment to describe any defendant or defendants more ]jarticularly if in the opinion of the court that should be done. (How. Ann. St. 2 Ed., § 13346.) § 2026. Defendant in action to quiet title — Limitation — Claimants under deceased persons. Sec. 3. Whenever suit is brought under the provisions 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 ac- cordance with the preceding sections, except under his proper name or the name appearing in such record, nor shall his unknown heirs, devisees, legatees and assigns be included as defendants therein, unless fifteen 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 are known shall be named as defendants and brought before 1342 EQUITY PRACTICE the court in the manner provided by law, and all others who might claim under such deceased person may be in- cluded as unknown defendants under the provisions of this act. (How. Ann. St. 2 Ed., § 13347.) § 2027. Corporations or partnership associations. Sec. 4. Any corporation or partnership association, the exist- ence of which has terminated from any cause or which has no office 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 publication herein provided for, to appear and defend such suit, and all 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. (How. Ann. St. 2 Ed., § 13348.) § 2028. Bill of complaint to be sworn to — Order for ap- pearance — Description of lands. Sec. 5. Whenever de- fendants are named in any suit or proceeding under this act as the unknown heirs, devisees, legatees and assigns of any person, or are included in any class of unnamed persons, the bill of complaint 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 inquiry to ascertain the names of the persons who are included as defendants therein without being named. Upon the filing of such pleading an order shall be entered by the circuit judge of the county in which such proceeding 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 rea- son 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 date. If the suit is concerning lands, every publication of such order shall be followed by a description of such lands as described in the bill of complaint, and a statement that the MICHIGAN STATUTES AND RULES 1343 suit involves the title to such lands or is brought to quiet the title thereto. (How. Ann. St. 2 Ed., § 13349.) § 2029. Subsequent proceedings — Proviso, appointment of guardians — Reopening of case. Sec. 6. All subsequent proceedings including publication of said order shall be taken in the same manner and with like effect as though all defendants were named therein by their proper names, and as to unnamed defendants and such as are -not known to be living shall be in conformity with the statutes re- lating to defendants who reside in another state: Pro- vided, That a guardian or guardians ad litem shall be appointed in accordance with the rules and practice of the court in the case of incompetent persons, to represent all unknown or unascertained defendants, and- all known defendants who are infants or incompetent: Provided further. That the court before which 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 years after the entry of the final decree, reopen said case and order a rehearing as to the rights of such defendant or defendants who shall serve a copy of such affidavit and order and notice of all subsequent proceedings in the case on the complainant or his solicitor, and on all defendants who appeared on the original hearing or their solicitors. (How. Ann. St. 2 Ed., § 13350.) §2030. Appearance of a co-defendant. Sec. 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 subject matter of such suit or proceeding, and who desires to appear in 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 showing his interest in such suit or proceeding, enter an order of course therein that the same shall, as far as he is concerned, proceed against him in his proper name as a co-defendant with the other persons defendant therein as herein provided, and upon 1344 EQUITY PRACTICE service of a copy of said affidavit and order and notice of the filing and entry thereof npon the complainant or his solicitor, together with notice of entry of the usual order of appearance, said cause shall from that time pro- ceed as in all other causes in chancery, but the right and interest of such persons so appearing shall be open to question upon the hearing of such cause or proceeding and in any other manner now provided by law. (How. Ann. St. 2 Ed., § 13351.) § 2031. Decrees — Recording of decree affecting real estate. Sec. 8. On the hearing of any suit or proceeding under this act, if the allegations of the bill or petition are proven to the satisfaction of the court, and if it shall ap- pear that the claims or possible rights of the defendants 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 conditions to be construed, it shall make a decree determining their nature, validity or extent which shall determine the rights of all parties complainant or defend- ant, 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 concerns 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 is situated. The court may award costs in its discretion. (How. Ann. St. 2 Ed., § 13352.) Partition of Lands § 2032. Who may hiive partition. Section 1. All per- sons holding lands as joint tenants or tenants in common, may have partition thereof, in the manner provided in this chapter. (0. L. '97, § 11013, How. Ann. St. 2 Ed., § 13210.) §2033. Suits, how instituted— If land is in different counties. Sec. 2. Any one or more of the persons so MICHIGAN STATUTES AND RULES 1345 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 re- spective rights of the parties interested therein, and for the sale of such premises, if it shall appear that the par- tition thereof cannot be made without great prejudice to the owners. In case such lands are situated in differ- ent 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 in the premises as fully and effectually as if the whole of such lands were situated in the county in which the suit is instituted. (C. L. '97, § 11014, How. Ann. St. 2 Ed., § 13211.) §2034. Suit, who may maintain — ^Undivided interest. Sec. 3. Such suit may be maintained by any person who has an estate in possession in the lands of which partition is sought, but not by one who has only an estate therein in remainder or reversion; such suit may also be main- tained by any person who has an estate in possession in any ores, minerals or metals that may exist or be here- after discovered 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 any person who owns an undivided interest, however acquired, in all of the estates in possession and in expectancy, in the land of which partition is sought, shall be deemed to have an estate therein in fee simple, absolute in possession, to the extent of the least share which he has in any of the estates, and shall be entitled to maintain a bill for partition under the provisions of this chapter. (C. L. '97, §11015, How. Ann. St. 2 Ed., § 13212.) § 2035. Bill to be verified, and what to set forth. Sec. 4. The bill for a partition or sale of any such lands shall be verified by oath, and shall particularly describe the premises sought to be divided, and shall set forth the rights and titles of all persons interested therein, so far as the same are known to the complainant, including the interest of any tenant for years, for life, by the curtesy 1346 EQUITY PRACTICE or in dower, and the persons entitled to the reversion, re- mainder or inheritance after the termination of any par- ticular estate therein, and every person who, by any con- tingency contained in any devise, grant or otherwise, may be, or become entitled to any beneficial interest in the premises. (C. L. '97, §11016, How. Ann. St. 2 Ed., § 13213.) § 2036. Who may be made parties. Sec. 5. Every per- son having any such interest as aforesaid, whether in pos- session or otherwise, and every person entitled to dower in snch premises, if the same has not been admeasured, may be made a party to such suit. (C. L. '97, § 11017, How. Ann. St. 2 Ed., § 13214.) § 2037. Unknown parties and uncertain interests. Sec. 6. 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 of the inheritance shall depend upon an ex- ecutory devise, or the remainder shall be a contingent remainder, so that such parties cannot be named, the same shall be set forth in the bill. (C. L. '97, § 11018, How. Ann. St. 2 Ed., § 13215.) § 2038. Creditors having lien need not be made parties, in first instance. Sec. 7. It shall not be necessary in the first instance to make any creditor having a lien on the premises in question, or any part thereof, by judgment, decree, mortgage, or otherwise, a party to the proceed- ings, nor shall the partition of the premises alter, affect or impair the lien of any such creditor, except in the cases provided for in the next section. (C. L. '97, § 11019, How. Ann. St. 2 Ed., §13216.) § 2039. Transfer of lien on undivided interest — When commissioners may set apart portion of premises — Trans- fer of lien — Premises to be first charged with costs — Other persons made parties to such proceedings by peti- tion to the court. Sec. 8. When the lien is on the un- divided interest or estate of any of the parties, either in a portion or the whole of the premises partitioned, such lien, if partition be made, shall thereafter be transferred, and be a charge only on the premises assigned to such MICHIGAN STATUTES AND RULES 1347 party, and may be enforced against the same as tliougli such lien had originally existed thereupon; but if the person having such lien be made a party to such suit, the court may direct the commissioners appointed to make such partition, to designate and set apart a tract or portion of the premises equal in value to the estate or interest of the party to whose portion the lien is to be transferred, in the tract upon which such lien had before existed; and on the confirmation of the report of such commissioners, such lien shall thereupon be transferred to the portion of the premises so designated by the com- missioners, with the same effect as is above provided in case the person having such lien is not a party to such suit; the portion of the premises to which the lien is trans- ferred shall be first charged with the just proportion of the costs of the proceedings in preference to said lien; if at any time prior to the confirmation of the report of the commissioners appointed to make such partition, any person had an uncertain or contingent interest in any part of the premises, which has since the filing of the bill be- come a certain or absolute interest, or who has acquired a title in fee to any part of said premises by virtue of any mortgage or execution sale of any interest thereon, shall apply to the court by petition setting forth his inter- est in the premises, the court shall thereupon direct that such person be made a party to such proceedings, and shall make such other or further orders and decrees re- specting the rights of such person as shall be agreeable to equity. (C. L. '97, §11020, How. Ann. St. 2 Ed., § 13217.) §2040. Creditor having specific lien may be made a party. Sec. 9. But the complainants may, at their elec- tion, make every creditor having a specific lien on the un- divided interest or estate of any of the parties, by mort- gage or otherwise, a party to the proceedings; and in such case the bill shall set forth the nature of every such lien in incumbrance. (C. L. '97, § 11021, How. Ann. St. 2 Ed., § 13218.) § 2041. Subpoena to appear and answer. Sec. 10. Upon filing a bill in the circuit court for the partition or sale 1348 EQUITY PRACTICE of any lands pursuant to the provisions of this chapter, the defendants, or such of them as reside in this state, and can be found therein, shall be served with a subpoena to appear and answer the bill, and the same may be taken as confessed, according to the practice in courts of equity. (C. L. '97, § 11022, How. Ann. St. 2 Ed., § 13219.) § 2042. Unknown and non-resident parties, how noti- fied. Sec. 11. If any parties having an interest in such lands are unknown, or if either of the known parties re- side 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 suf- ficient 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 pub- lished 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. (C. L. '97, § 11023, How. Ann. St. 2 Ed., § 13220.) § 2043. Order to take bill as confessed against unknown parties. Sec. 12. The proof of personal service or of the l)ublication of such order, shall authorize an order of the court for taking the bill as confessed against all such unknown parties, and persons not resident in this state, or not found therein, as shall not appear and answer by the day mentioned in the order, or on such further day as the court may appoint; and all such unknown parties as may appear, shall be entitled to be made parties to the suit, and the bill may be amended accordingly. (C. L. '97, § 11024, How. Ann. St. 2 Ed., § 13221.) § 2044. Guardians for minors, etc. Sec. 13. The gen- eral 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 guardians for all such minors who shall be interested in the premises, as have no general guardians in this state, for the spe- MICHIGAN STATUTES AND RULES 1349 cial 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. (C. L. '97, § 11025, How. Ann. St. 2 Ed., § 13222.) § 2045. Bond to be given by guardian. Sec. 14. Every such guardian shall give bond to the people of this state, to be filed with the clerk 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. (C. L. '97, § 11026, How. Ann. St. 2 Ed., § 13223.) § 2046. On failure of guardian to give bond, clerk to be appointed. Sec. 15. When a bill shall be filed for the partition or sale of any lands in pursuance of this chap- ter, and any of the defendants therein are minors, or other persons under guardianship, and the general guard- ian, or person appointed guardian by the court, shall fail to give the security hereinbefore required, it shall be the duty of the court, on the application of the com- plainants, to appoint the clerk of said court the guard- ian of such minors or other persons, for the purpose of such partition, and to dispense with the securities hereinbefore required. (C. L. '97, § 11027, How. Ann. St. 2 Ed., § 13224.) § 2047. When issue of fact to be tried by jury. Sec. 16, 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 determining the rights of any of the parties in the premises of which partition shall be sought, that any issue of fact between the parties, or any of them, should be tried by a jury, such court may award a feigned issue for that purpose, which shall be tried by a jury, and the verdict thereon 1350 EQUITY PRACTICE be returned as in other cases, and with the like effect. (C. L. '97, § 11028, How. Ann. St. 2 Ed., § 13225.) §2048. Court may permit bill and proceedings to be amended. Sec. 17. Either before or after the trial of such issue, 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 as to make any per- son a defendant who shall have appeared in the course of 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, with- out 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. (C. L. '97, § 11029, How. Ann. St. 2 Ed., § 13226.) § 2049. Rights of parties aflfected by amendment. Sec. 18. After any such amendment, 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 circumstances of the case may render proper. (C. L. '97, § 11030, How. Ann. St. 2 Ed., § 13227.) § 2050. Reference to take proof of title of complainants. Sec. 19. 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 to take proof of the title of the complainants, and report the same to the court; and the complainants shall exhibit before such master proof of their title, and an abstract of the convey- ances by which the same is' held. (C. L. '97, § 11031, How. Ann. St. 2 Ed., § 13228.) § 2051. Rights of parties, how ascertained, and decree thereon. Sec. 20. Upon the hearing 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 an- swer, or pleadings and proofs, if the defendants appear and answer, and shall declare the rights, titles and inter- ests of the parties to such proceedings, complainants as MICHIGAN STATUTES AND RULES 1351 well as defendants, so far as the same shall have ap- peared ; and shall determine the rights of the said parties in such lands, and shall decree that partition be made between such of them as shall have any rights therein, according to such rights. (C. L. '97, § 11032, How. Ann. St. 2 Ed., § 13229.) § 2052. Decree in case the rights of some of the parties do not appear. Sec. 21. If upon the hearing of the cause, the part or interest of any parties who shall not have appeared and answered the bill, whether known or unknown, in and to such premises, shall not have ap- peared by the proofs in the cause, then the court shall decree that partition be made, so 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 parties whose interests have not been ascertained, subject to division between them at any future time. (C. L. '97, § 11033, How. Ann. St. 2 Ed., § 13230.) § 2053. Reference to inquire into situation of premises. Sec. 22. Upon making' a decree for partition as pro- vided in the two last preceding sections, an order shall be entered referring it to a master to inquire into the situation of the premises, and to report whether such premises, or any part of them, are so circumstanced that a partition and division thereof amongst the parties interested cannot be made without great prejudice to the owners. (C. L. '97, § 11034, How. Ann. St. 2 Ed., § 13231.) § 2054. When and how commissioners appointed to make partition. Sec. 23. If upon the coming in of the report of the master, the court shall be satisfied that par- tition of the premises between the parties interested therein can be made without prejudice to the owners, such court shall, by an order to be entered in its min- utes, appoint three discreet and disinterested freehold- ers commissioners, to make the partition so decreed, according to the respective rights and interests of the parties, as the same were ascertained and determined by such court, and in such order the court shall des- 1352 EQUITY PRACTICE ignate the part or shares, if any, which shall remain un- divided, for the owners whose interests shall be unknown or not ascertained. (C. L. '97, § 11035, How, Ann. St. 2 Ed., § 13232.) § 2055, Vacancies. Sec. 24. If the persons so ap- pointed commissioners, or either of them, shall die, re- sign, or neglect to serve, the court may, from time to time, appoint others in their places. (C. L. '97, § 11036, How. Ann. St. 2 Ed., § 13233.) § 2056. Oath of commissioners. Sec. 25. The commis- sions, 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 partition as directed by the court; which oath shall be filed with the clerk of the court, on or before the coming in of the re- port of such commissioners. (C. L. '97, § 11037, How. Ann. St. 2 Ed., § 13234.) § 2057. How partition to be made. Sec. 26. In mak- ing partition, the commissioners shall divide the said real estate, and allot the several portions and shares thereof to the respective parties, quality and quantity relatively considered, according to the respective rights and interests of the parties so adjudged and decreed by the court, designating the several shares and portions by posts, stones, or other permanent monuments, and they may, if necessary, employ a surveyor with the nec- essary assistants, to aid them therein. (C L. '97, § 11038, How. Ann. St. 2 Ed., § 13235.) § 2058. Report of commissioners. Sec. 27. The com- missioners shall make an ample report of their proceed- ings, under the hands of any two of them, specifying therein the manner of executing their trust, and de- scribing the land divided, and the shares allotted to each party, with convenient certainty, and the items of their charges. (C. L. '97, § 11039, How. Ann. St. 2 Ed., § 13236.) § 2059. — AU to meet. Sec. 28. All the commissioners must meet together in the performance of any of their duties, but the acts of the majority so met shall be valid. . (C. L. '97, § 11040, How. Ann. St. 2 Ed., § 13237.) MICHIGAN STATUTES AND RULES 1353 § 2060. — Fees and expenses. Sec. 29. The expenses of the commissioners, including the expenses of a sur- veyor and his assistants, when they shall be employed, shall be ascertained and allowed by the court; and the amount thereof, together with such compensation as shall be allowed to the commissioners by the court for their services, shall be paid by the complainant, and shall be allowed to them as part of the costs to be taxed. (C. L. '97, § 11041, How. Ann. St. 2 Ed., § 13238.) §2061. Setting aside report, etc. Sec. 30. On good cause shown, the court may set aside the report, and commit the case to the same, or appoint new commis- sioners, as often as may be necessary, who shall pro- ceed in like manner as hereinbefore directed. (C. L. '97, § 11042, How. Ann. St. 2 Ed., § 13239.) §2062. Decree on confirmation of report. Sec. 31. Upon the confirmation of the report of any commis- sioners by the court, a decree shall thereupon be entered, that such partition shall be firm and effectual forever, and such decree shall be binding and conclusive: 1. On all parties named therein, and their legal rep- resentatives, who shall, at the time, have any interest in the premises divided, as owners in fee, or as tenants for years, or as entitled to the reversion, remainder or inheritance of such premises, after the termination of any particular estate therein; or who, by any contin- gency 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 un- divided share of the premises, as tenant for years, for life, by the curtesy, or in dower. 2. On all persons interested in the premises, who may be unknown, to whom notice shall have been given by personal service, or by publishing the same as is here- inbefore directed; and, . 3. On all other persons claiming from such parties or persons, or either of them. (C. L. '97, § 11043, How. Ann. St. 2 Ed., § 13240.) §2063. Persons and cases not affected. Sec. 32. But 1354 EQUITY PRACTICE such decree and partition shall not affect any tenants, or persons having claims as tenants, in dower, by the cur- tesy or for life, to the whole of the premises which shall be the subject of such partition; nor shall any such de- cree and partition preclude any person, except such as are specified in the last preceding section, from claiming any title to the premises in question, or from controvert- ing the title or interest of the parties, between whom such partition shall be made. (C. L. '97, § 11044, How. Ann. St. 2 Ed., § 13241.) § 2064. When court to order sale. Sec. 33. If the com- missioner to whom reference shall be made, as herein- before provided, shall report to the court that all the lands or tenements of which division and partition is sought, are so situated, or that any district, tract, lot or portion thereof, is so situated that a partition and division thereof amongst the persons interested therein cannot be made without great prejudice to the owners, and if the court shall be satisfied that such report is just and correct, the court may thereupon make an order that the commissioner sell the premises so situ- ated, at public auction to the highest bidder; and if said commissioner shall report that any portion, interest or part can be divided, and partitions made thereof, and that other portions, interests or parts cannot be so divided without great prejudice to the owner thereof, the court shall, if satisfied that such report is just, by an order appoint commissioners as hereinbefore pro- vided, and direct said commissioners to proceed to make partition and division of such parts or interest of which division can be made, and set apart such portion, inter- est or parts thereof to be sold, and the same may be sold as hereinafter provided. (C. L. '97, § 11045, How. Ann. St. 2 Ed. § 13242.) §2065. Partition and sale. Sec. 34. The court shall direct, in such order, the terms of credit which may be allowed, for any portions of the purchase money of which it shall think proper to direct the investment, and for such portions of such purchase money as are re- quired by the provisions hereinafter contained, to be in- MICHIGAN STATUTES AND RULES 1355 vested for the benefit of any unknown owners, any in- fants, any parties out of the state, or any tenants for life, in dower, or by the curtesy. (C. L. '97, § 11046, How. Ann. St. 2 Ed., § 13243.) § 2066. Order to direct terms of credit, etc. Sec. 35. The portions of the purchase money for which credit shall be allowed, shall always be secured at interest, by a mortgage of the premises sold, by a bond of the pur- chaser, and by such other security as the court shall pre- scribe. (C. L. '97, § 11047, How. Ann. St. 2 Ed., § 13244.) §2067. Credits, how secured — Separate securities. Sec. 36. The master may take separate mortgages and other securities, for such convenient shares or portions of the purchase money, as are directed by the court to be invested, in the name of the clerk of the court in whose office the original bill for a partition was filed, and his successors in office; and for such shares as any known owner of full age shall desire to have so invested, in the name of such owner. (C. L. '97, § 11048, How. Ann. St. 2 Ed., § 13245.) §2068. To whom securities to be delivered. Sec. 37. Upon such sales being confirmed, as hereinafter men- tioned, the said master shall deliver such mortgages and other securities to the clerk of the court, or to the known owners whose shiares were so invested. (C. L. '97. § 11049, How. Ann. St. 2 Ed., § 13246.) § 2069. Complainant to amend his bill before the order for sale. Sec. 38. Before making any order for the sale of the said premises where creditors or other persons, having specific liens, or purchasers at mortgage, or ex- ecution 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 having a specific lien on the im- divided interest or estate of any of the parties by mort- gage or otherwise, and also persons who have acquired an interest under mortgage or execution sales. (C. L. '97, § 11050, How. Ann. St. 2 Ed., § 13247.) § 2070. Certain moneys to be brought into court. Sec. 39. If it shall appear by the proceedings on such bill, or Whitehouse E. P. Vol. 11—30 1356 EQUITY PEACTICE by such report, that there are any existing incumbrances upon the estate or interest in the premises, of any party named in the proceedings in the suit, the court shall, in the order of sale, direct the master to bring into court and pay to the clerk, the portion of the moneys arising from the sale of the estate and interest of such party, after deducting the portion of the costs, charges and expenses to which it shall be liable. (C. L. '97, § 11051, How. Ann. St. 2 Ed., § 13248.) § 2071. Application for moneys brought in. Sec. 40. Such party may apply to the court to order such moneys, or such part thereof as he shall claim, to be paid to him ; which application shall be accompanied: 1. By his own affidavit, stating the true amount ac- tually due on each incumbrance, the owner of such in- cumbrance, and his residence, as far as known to such party; 2. By proof by affidavit, of the due service of a notice on each owner of any incumbrance, of the intention to make such application, at least fourteen days previously. If such owner reside in this state, such notice shall be served personally, or if he be absent from his residence, by leaving a copy there, with some person of his house- hold of proper age. If such owner reside out of this state, such notice may be served on him personally, thirty days previously, or by publishing the same in such paper as the court may direct, three weeks successively, once in each week. (C. L. '97, § 11052, How. Ann. St. 2 Ed., § 13249.) §2072. Proceedings on application. Sec. 41. Upon such application and proof of notice, the court shall pro- ceed to hear the proofs and allegations of the parties; and if any question of fact shall arise, which, in the opinion of the court, cannot be satisfactorily determined without a trial by jury, the court shall award a feigned issue, to be tried as in other cases, and the costs of such trial shall be paid by the party failing, which payment shall be enforced by attachment, as in other cases. (C. L. '97, § 11053, How. Ann. St. 2 Ed., § 13250.) § 2073. Distribution of moneys among creditors. Sec. MICHIGAN STATUTES AND RULES 1357 42. When the amount of existing incumbrances shall have been ascertained, the court shall proceed to order a distribution of the moneys so brought into and re- maining in court, among the several creditors having such incumbrances, according to the priority thereof respectively. (C. L. '97, § 11054, How. Ann. St. 2 Ed., § 13251.) §2074. Clerk to procure discharge of incumbrances. Sec. 43. The clerk of the court by whom any such in- cumbrance shall be paid off, shall procure satisfaction thereof to be acknowledged, in the form required by law, and shall cause such incumbrance to be duly satisfied or canceled of record, and shall defray the expenses thereof out of the portion of the moneys in court belong- ing to the party by whom such incumbrance was pay- able. (C. L. '97, § 11055, How. Aim. St. 2 Ed., § 13252.) § 2075. Other parties not to be delayed. Sec. 44. The proceedings to ascertain and settle the amount of incum- brances as herein provided, shall not affect any other party in such suit for partition, nor delay the paying over or investing the moneys to or for the benefit of any party, upon whose estate in the premises there shall not appear to be any existing incumbrances. (C. L. '97, § 11056, How. Ann. St. 2 Ed., § 13253.) § 2076. Sale of dower or other life estate in premises. Sec. 45. "Whenever the estate of any tenant in dower or by the curtesy, or for life, in the whole or any part or share of the premises in question, has been admitted by the parties, or ascertained 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 pro- ceedings, 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 determina- tion, regard shall be had to the interests of all the parties. (C. L. '97, § 11057, How. Ann. St. 2 Ed., § 13254.) § 2077. — Effect of sale. Sec. 46. If a sale of the premises, including such estate, shall be ordered, the estate and interest of every such tenant or person shall 1358 EQUITY PRACTICE pass thereby, and the purchaser, his heirs and assigns, shall hold such premises free and discharged from all claims by virtue of any such estate or interest, whether the same be to any undivided share of a joint tenant or tenant in common, or to the whole or any part of the premises sold. (C. L. '97, § 11058, How. Ann. St. 2 Ed., § 13255.) § 2078. Payment to owner of life estate, etc., with his assent. Sec. 47. Upon such sale being made of any such interest or estate, the court shall direct the payment of such sum in gross, out of the proceeds thereof, to the per- son entitled to such estate in dower, tenancy by the curtesy, or tenancy for life, as shall be deemed upon the principles of law applicable to annuities, a reasonable satisfaction for such estate or interest, and which the person so entitled shall consent to accept in lieu there- of, by an instrument under seal, duly acknowledged or proved in the manner that deeds are required to be ac- knowledged or proved, to entitle them to be recorded. (C. L. '97, §11059, How. Ann. St. 2 Ed., § 13256.) § 2079. Proceedings if consent be not given. Sec. 48. In case no such consent is given at or before the coming in of the report of sale by the master, then the court shall ascertain and determine what proportion of the proceeds of such sale, after deducting all expenses, will be a just and reasonable sum to be invested for the benefit of the person entitled to such estate or interest in dower, by the curtesy, or for life, and shall order the same to be brought into court for that purpose. (C. L. '97 § 11060, How. Ann. St. 2 Ed., § 13257.) § 2080. Proportions to be invested — In case of dower — Estate for life. Sec. 49. The proportions of the pro- ceeds of such sale to be invested, shall be ascertained and determined, in the several cases, as follows: 1. If an estate in dower shall have been included in such order of sale, its proportion shall be one-third of the proceeds of the sale of the premises, or of the sale of the undivided share in such premises, upon which such claim of dower existed. 2. If an estate by the curtesy, or other estate for life, MICHIGAN STATUTES AND RULES 1359 shall be included in the order of sale, its proportion shall be the whole proceeds of the sale of the premises, or of the sale of the undivided share thereof, in which such estate shall be. And in all cases, the proportion of the expenses of the proceedings shall be deducted from the proceeds of such sale. (C. L. '97, §11061, How. Ann. St. 2 Ed., § 13258.) § 2081. Rights of unknown owners to be protected by court. Sec. 50. If the persons entitled to any such estate in dower, by the curtesy, 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. (C. L. '97, § 11062, How. Ann. St. 2 Ed., § 13259.) § 2082. Notice of sale by master. Sec. 51. The master shall give notice of any sale to be made by him, for the same time, and in the same manner as is required by law on sales of real estate by sheriffs on execution. (C. L. '97, § 11063, How. Ann. St. 2 Ed., § 13260.) § 2083. How conducted. Sec. 52. The terms of such sale shall be made known at the time, and if the premises consist of distinct lots, tracts or parcels, they shall be sold separately. (C. L. '97, § 11064, How. Ann. St. 2 Ed., § 13261.) §2084. Ma;Ster and guardians not to purchase. Sec. 53. No such master, nor any person for his benefit, shall be interested in the purchase, nor directly or indirectly purchase any of the premises sold ; nor shall any guardian of any infant party in such suit, purchase, or be inter- ested in the purchase of any lands, being the subject of such suit, except for the benefit or in behalf of such in- fant; and all sales contrary to the provisions of this sec- tion shall be void. (C. L. '97, § 11065, How. Ann. St. 2 Ed., § 13262.) § 2085. Report of sale. See. 54. After completing such sale, the master shall report the same to the court, with a description of the different parcels of land sold to each purchaser, the name of such purchaser, and the price 1360 EQUITY PRACTICE bid by him, which report shall be filed in the court. (C. L. '97, § 11066, How. Ann. St. 2 Ed., § 13263.) § 2086. Order for conveyances. Sec. 55. If such sales be approved and confirmed by the court, an order shall be entered directing the master to execute conveyances pursuant to such sales; which such master shall be au- thorized to do upon the entry of such order. (C. L. '97, § 11067, How. Ann. St. 2 Ed., § 13264.) § 2087. Conveyances to be recorded, their effect. Sec. 56. Such conveyances so executed, shall be recorded in the county where the premises are situated; and shall be a bar, both in law and equity, against all persons in- terested in any way, who shall have been named as parties in the said proceedings, and against all such parties as were unknown, if notice of the order to ap- pear and answer shall have been given by such publi- cation or service of notice as is hereinbefore directed; and against all other persons claiming from such parties, or either of them. (C. L. '97, § 11068, How. Ann. St. 2 Ed., § 13265.) § 2088. Effect of conveyances upon rights of creditors. Sec. 57. Such conveyances shall also be a bar against all persons having specific liens on any undivided share or interest therein who shall have been made parties to the proceedings ; but no creditor having any such specific lien shall be affected by such sale or conveyance, unless he shall have been made a party to the proceedings. (C. L. '97, § 11069, How. Ann. St. 2 Ed., § 13266.) §2089. Costs and expenses of proceedings. Sec. 58. The costs and expenses of the proceedings shall be de- ducted from the proceeds of every sale made by the master, and shall be by him, in the first instance, paid to the complainants or their solicitor. (C. L. '97, § 11070, How. Ann. St. 2 Ed., § 13267.) § 2090. Distribution of proceeds of sale among parties. Sec. 59. The proceeds of every sale, after deducting the costs, shall be divided among the parties whose rights and interests shall have been sold, in proportion to their respective rights in the premises; and the shares of such of the said parties as are of full age, shall be paid MICHIGAN STATUTES AND EULES 1361 to them or their legal representatives by the master, or shall be brought into court for their use. (C. L. '97, §11071, How. Ann. St. 2 Ed., § 13268.) § 2091. Shares of known infajits. Sec. 60. When any of such known parties are infants, the court may, in its discretion, direct the shares of such infant to be paid over to the general guardian, or to be invested in per- manent securities at interest, in the name and for the benefit of such infant. (C. L. '97, § 11072, How. Ann. St. 2 Ed., §13269.) §2092. Shares of unknown and absent owners. Sec. 61. Where any of the parties whose interests have been sold are absent from the state, without legal representa- tives in this state, or are not known or named in the proceedings, the court shall direct the shares of such parties to be invested in permanent securities at inter- est, for the benefit of such parties, until claimed by them or their legal representatives. (C. L. '97, § 11073, How. Ann. St. 2 Ed., § 13270.) §2093. Tenants in dower or for life, etc. Sec. 62. Where the proceeds of a sale belonging to any tenant in dower, or by the curtesy, or for life, shall be brought into court as hereinbefore directed, the court shall direct the same to be invested in permanent securities at inter- est, so that such interest shall annually be paid to the parties entitled to such estate, during their lives re- spectively. (C. L. '97, §11074, How. Ann. St. 2 Ed., § 13271.) § 2094. Security to refund. Sec. 63. The court may, in its discretion, require all or any of the parties, before they shall receive any share of the moneys arising from such sales, to give security to the satisfaction of such court, to refund the said share with interest thereon, in case it shall thereafter appear that such party was not entitled thereto. (C. L. '97, § 11075, How. Ann. St. 2 Ed., § 13272.) § 2095. In what names securities to be taken. Sec. 64. When any security is directed to be taken by the court, or any investment to be made, or any security shall be taken by a master on the sale of any real estate as here- 1362 EQUITY PRACTICE inbefore directed, except where provision shall be made for taking the same in the name of any known owner, the bonds, mortgages or other evidences thereof shall be taken in the name of the clerk of the court in whose office the original bill was filed, and his successors in office, who shall hold the same by virtue of his office, and shall deliver them to his successor. (C. L. '97, § 11076, How. Ann. St. 2 Ed., § 13273.) § 2096. Clerk to receive and apply moneys, and render account. Sec. 65. Such clerk shall receive the interest or principal of any sums as they become due, and apply or reinvest the same, according to the circumstances of the case, as the court shall direct; and shall, once in every year, render to the court an account in writing, and on oath, of all moneys received by him, and of the application thereof. (C. L. '97, § 11077, How. Ann. St. 2 Ed., § 13274.) § 2097. Investment, how made, etc. Sec. 66. All in- vestments, or reinvestments, under the provisions of this chapter, shall be made on bond and mortg-age upon un- incumbered real estate, of at least double the value of such investment, exclusive of buildings, or in other equiv- alent security; and no such security, bond, mortgage or other evidence of such investment, shall be discharged, transferred or impaired, by any act of the clerk, without the order of the court entered in the minutes thereof. (C. L. '97, § 11078, How. Ann. St. 2 Ed., § 13275.) §2098. Suits on securities. Sec. 67. Any person in- terested in such investment, may, with the leave of the court, prosecute the same, in the name of the existing clerk, and no suit shall be abated by the death, removal from office, or resignation of the clerk to whom such se- curities or evidences were executed, or of any of his suc- cessors. (C. L. '97, § 11079, How. Ann. St. 2 Ed., § 13276.) § 2099. Costs of partition, how assessed and collected. Sec. 68. When a decree confirming the partition made by any commissioners, shall be entered as provided in this chapter, the court shall also adjudge and decree that each of the parties concerned therein, other than the complainants, pay to such complainants a proportion of MICHIGAN STATUTES AND RULES 1363 the costs and charges of the proceedings, to be ascer- tained by the court, according to the respective rights of the parties, and the proportion of such costs and charges assessed upon the unknown owners, to be charge- able 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 remain- ing undivided, for the proportion adjudged to be paid by such owners, or chargeable to the part remaining un- divided. (C. L. '97, § 11080, How. Ann. St. 2 Ed., § 13277.) § 2100. Sale of premises of unknown owner valid. Sec. 69. A sale of the premises of such owner unknown, upon such execution, shall be as valid as if such owner had been named in the proceedings, and in such execution. (C. L. '97, § 11081, How. Ann. St. 2 Ed., § 13278.) § 2101. Costs against complainants on dismissal of bill, etc. Sec. 70. If a bill for partition shall be dismissed, or the suit shall be discontinued, the complainants shall pay tlie costs, to be collected as in other cases. (C. L. '97, § 11082, How. Ann. St. 2 Ed., § 13279.) § 2102. Appeal. Sec. 71. Any of the parties to a suit for the partition or sale of any premises under the pro- visions of this chapter, and any party interested in the premises, though not named in the proceedings, may, jointly or separately, and without the consent of any co-complainant or co-defendant, appeal from any decree or order of the said court, upon any such proceedings, within the same time, and under the like regulations, as in other cases. (C. L. '97, § 11083, How. Ann. St. 2 Ed., § 13280.) § 2103. Partition or sales of estates of infants by guard- ians. Sec. 72. Whenever it shall appear satisfactorily to the court, by due proof, or on report of a master, that any infant holds real estate in joint tenancy, or in com- mon, or in any other manner which would authorize his being made a party to a suit in partition, and that the interest of such infant, or of any other person concerned 1364 EQUITY PRACTICE therein, requires tliat partition of sucli estate should be made, such court may direct and authorize the general guardian of such infant to agree to a division thereof, or to a sale of such premises, or of such part thereof, as in the opinion of the court shall be incapable of parti- tion, or as shall be most for the interest of such infant to be sold. (C. L. '97, § 11084, How. Ann. St. 2 Ed., § 13281.) § 2104. Report of guardian and order for conveyances. Sec. 73. Such guardian shall report to the court, on oath, the partition or sale so made by him, and if the same be approved and confirmed by the court, an order shall be entered authorizing such guardian to execute convey- ances of the right of such infant to such part of the paid estate as shall have been sold, to the purchaser thereof; or to execute releases of the rights of such in- fant to such part of the said estate, as in division falls to the shares of the other joint tenants, or tenants in common. (C. L. '97, § 11085, How. Ann. St. 2 Ed., § 13282.) § 2105. Effect of deeds, infants deemed wards of court. Sec. 74. Such deeds shall be as valid and effectual to convey the share and interest of such infant, as if the same had been executed and duly acknowledged by such infant after arriving at full age; and in case of the sale of any part of such estate, the infant shall be deemed a ward of the court, and such order shall be taken as the court may direct, for securing, investing and applying the proceeds of the sale, and for requiring security from the guardian for that purpose. (C. L. '97, § 11086, How. Ann. St. 2 Ed., § 13283.) §2106. If infant a married woman, husband to be guardian. Sec. 75. Wheneve'r such infant shall be a mar- ried woman, the court may, upon petition, appoint her husband as her guardian, and in case of the appointment of the husband, the provisions of the three last preceding sections shall apply to such husband. (C. L. '97, § 11087, How. Ann. St. 2 Ed., § 13284.) § 2107. Partition by guardians of luna,tics, etc. Sec. 76. "Whenever it shall appear to the court, on the appli- cation of the guardian of any idiot, lunatic, spendthrift, MICHIGAN STATUTES AND RULES 1365 or person mentally incapable of managing his affairs, holding any estate in joint tenancy or in common, or in any other manner to authorize his being made a party to a suit in partition, that the interest of such idiot, lunatic, or other person aforesaid, or of any of the parties interested in such estate, requires a partition thereof, it shall be referred to a master in chancery to inquire into and report upon the circumstances. (C. L. '97, § 11088, How. Ann. St. 2 Ed., § 13285.) §2108. Releases, when to be authorized. Sec. 77. Upon the coming in of the report, and hearing and ex- amination of the matter, the court may authorize such guardian to agree to a partition of such estate, and to execute releases of the right of such idiot, lunatic, or other person as aforesaid, in and to the shares of such estate falling to the other joint tenants, or tenants in common. (C. L. '97, § 11089, How. Ann. St. 2 Ed., § 13286.) § 2109. Effect of releases. Sec. 78. Such releases shall be as valid and effectual to convey the share of such idiot, lunatic, or other person as aforesaid, as if the same had been executed by them respectively, when of sound mind and understanding, and not subject to guardian- ship, and for a valuable consideration. (C. L. '97, § 11090, How. Ann. St. 2 Ed., § 13287.) §2110. Partition when state is interested. Sec. 79. When any land shall be held by the people of this state, and by individuals as tenants in common, proceedings for the partition thereof may be had against the people of this state in the circuit court, in the same manner as against individuals, and the like orders and decrees shall be had therein, and the proportion of the costs and ex- penses of such partition, adjudged to be paid by the people of this state, shall be certified by the attorney general, and paid out of the state treasury on the war- rant of the auditor general. (C. L. '97, § 11091, How. Ann. St. 2 Ed., § 13288.) § 2111. Service of subpoena, etc., on attorney general. Sec. 80. The subpoena to answer, and all notices re- quired to be served in other cases, shall be served on the attorney general, who shall appear in behalf of the state, 1366 EQUITY PRACTICE and attend to its interests. (C. L. '97, § 11092, How. Ann. St. 2 Ed., §13289.) §2112. Claims barred by statute of limitations, etc. Sec. 81. The authority given by this chapter to proceed for the partition of real estate, shall not authorize the revival or prosecution of any claim to lands which would, or otherwise might be barred by the statute of limitations, or by the acquiescence of any party having any such claim. (C. L. '97, § 11093, How. Ann. St. 2 Ed., § 13290.) § 2113. Compensation for inequality of partition. Sec. 82. Whenever partition shall be decreed by any cir- cuit 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 compensation to be made by one party to the other, for equality of partition, according to the equity of the case. (C. L. '97, § 11094, How. Ann. St, 2 Ed., § 13291.) § 2114. Act applicable to lands held by trustee. Sec. 83. The provisions of this act shall be applicable to lands held by a trustee for the benefit of parties having a beneficial interest therein, and the proceedings for a partition may be instituted by the trustee, or any party interested in the lands so held, and shall be regulated by the provisions of this act, except as is hereinafter provided. (C. L. '97, §11095, How. Ann. St. 2 Ed., § 13292.) § 2115. When courts may divide lands among heirs, etc. Sec. 84. Where the original parties in interest in said trust, or any of them, may have departed this life, leaving heirs or legatees, or others interested by title or right through them or any of them in said lands, it shall be competent for the court, at its discretion, to divide the said land by decree, among the said heirs, legatees, or others representing the interests of the de- ceased therein, so as to set off the interest of all such parties together, without subdivisions among them. (C L. '97, § 11096, How. Ann. St. 2 Ed., § 13293.) § 2116. Interest may be set off in a body without sub- division. Sec. 85. In any case where it may be deemed MICHIGAN STATUTES AND RULES 1367 expedient to decree that tlie interest wlaich may have belonged to any deceased party shall be set off in a body, without subdivision to those claiming under him, it shall be sufficient to provide by the decree that such parcel or interest shall be set off to the heirs, assigns, or those legally entitled under or through the party originally interested, who may have deceased, mentioning his name in the decree. (C. L. '97, § 11097, How. Ann. St. 2 Ed., § 13294.) § 2117. Partition where original parties in interest are fuUy known. Sec. 86. In all cases where the original parties in interest are fully known, but where, by death, legal proceedings, or by other operations of law, it has become uncertain who are the present parties in inter- est, it shall be competent and lawful to separate the portion or interest in such lands, originally owned by said parties, in the manner provided in the foregoing section, instead of leaving it with land undivided as belonging to unknown owners, and such divisions and decree shall operate to convey the title to those claiming under said party, according to their legal rights, what- ever they may be. (C. L. '97, § 11098, How. Ann. St. 2 Ed., § 13295.) § 2118. Cdurt may appoint a receiver in certain cases. Sec. 87. "Whenever it shall appear that it would be ben- eficial to any part owner of the premises of which par- tition is sought, that the same should be leased or pro- tected from waste, trespasses, or injury, or for any other purpose, it shall be competent for the court to appoint a receiver thereof, with such authority as may be necea ■ sary in the premises. (C. L. '97, § 11099, How. Ann. St 2 Ed., § 13296.) § 2119. Duty of court under judgment, in case of mar ried women. Sec. 88. In all cases of sales under judg^ ment or decree in partition, where it shall appear that any married woman has an inchoate right of dower in any of the lands divided or sold, or that any person has any vested or contingent future right or estate in such lands, it shall be the duty of the court under whose judgnient or decree such sale is made, to ascertain and 1368 EQUITY PEACTICE settle the proportional value of such inchoate, contin- gent or vested right or estate, according to the prin- ciples of law applicable to annuities and survivorships, and to direct such proportion of the proceeds of the sale to be invested, secured, or paid over in such manner as shall be judged best to secure and protect the rights and interests of the parties. (C. L. '97, §11100,. How. Ann. St. 2 Ed., § 13297.) § 2120. How married women may release interest in estate. Sec. 89. Any married woman may release such right, interest, or estate to her husband, and acknowl- edge the same before the commissioner making the sale, or before any officer authorized to take acknowledg- ments, or if executed out of this state, to be executed, acknowledged, and certified as required by the laws of this state for the execution, acknowledgment, and cer- tification of deeds, in any other state, territory, or dis- trict of the United States, and upon such release the share of the sale arising from her contingent interest shall be paid to her or to her husband for her benefit. (C. L. '97, § 11101, How. Ann. St. 2 Ed., § 13298.) § 2121. Release a bar. Sec. 90. Such release, and also the payment, investment, or otherwise securing any share of the proceeds of a sale, according to section eighty- eight of this act, shall be a bar, both in law and equity, against any such right, estate or claim. (C. L. '97, § 11102, How. Ann. St. 2 Ed., § 13299.) EXILES OF COTJET *' § 2122. Bills of complaint: (a) Suits in chancery shall be commenced by bills of complaint, setting forth the facts relied on, the names of the defendants therein, and 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 par- agraphs numbered consecutively, and each paragraph shall contain, as near as may be, a separate and dis- tinct allegation. The prayer of every bill of complaint shall also be divided into paragraphs numbered con- * Corrected to January 1, 1915. MICHIGAN STATUTES AND KULES 1369 secutively, 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 paragi-aphs shall be stricken from the files on motion, unless the court shall deem it proper to allow amendments thereto to cure the defect. (Mich. Chancery, Rule 1.) § 2123. Verifying bills of complaint, etc. (a) Sworn bills may be verified by the oath of the complainant, or in case of his absence from the State, or other suffi- cient 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 pos- itively, 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 therein stated to be on his informa- tion and belief, and as to those matters he believes it to be true; and the substance of the oath shall be stated in the jurat. (c) The bill may be sworn to before any officer au- thorized by the laws 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 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 1370 EQUITY PEACTICE other diplomatic agent or consul of the United States, or any notary public; but the certificate of such notary shall be made under his notarial seal. (Mich. Chancery, Eule 2.) §2124. Security for costs by non-residents. 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 decreed against the complainant in such case; or there shall be indorsed 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 reg- ister shall indorse his approval of such surety or sureties. (Mich. Chancery, Eule 3.) §2125. Process — Form of chancery subpoena — How served, (a) All process, unless otherwise directed, shall be made returnable on a day certain (except Sun- day), either in vacation or in term, not less than ten days from the issuing thereof; and if process is not ex- ecuted on or before the return da}^ 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 de- livering a copy of the writ, subscribed by the complain- ant, 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. (Former Eule 10.) (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 reqiiired 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 MICHIGAN STATUTES AND RULES 1371 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 busi- ness address of the complainant's solicitor shall appear upon the subpoena. (d) The form of the subpoena may be as follows: (Substitute for former Eule 122.) State of Michigan | The Circuit Court for the County of /■ ss. In Chancery. J Subpoena In the Name of the People of the State of Michigan; To C D, etc. 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 A. B., 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 accord- ance 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 day of this writ is the day of , A. D. 189... Witness, the Hon. E. F., Circuit Judge, at , this day of , in the year of our Lord one thousand eight hundred and Eegister. Deputy Eegister. Underwriting: A personal decree is sought against the defendants C. D., etc., and the bill is filed to reach in- terests in property, and not to obtain any further relief against the remainder of the defendants. Solicitor for Complainant. Business address (Mich. Chancery, Eule 4.) § 2126. Proceedings following the service of subpoena, (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 Whltehouse E. P. Vol. II — 31 1372 EQUITY PRACTICE register of the coiirt 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 solicitor. Such appearance, whether followed by an- swer or not, shall entitle him to notice of all future pro- ceedings 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, within fifteen days after receiving the notice and de- mand 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 differ- ent 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 subse- quent 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. (Mich. Chan- cery, Eule 5.) § 2127. Extending time for pleading, etc. 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 special 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. (Mich. Chancery, Rule 6.) § 2128. Proceedings on default of either party, (a) If either party shall make default in filing or serving any MICHIGAN STATUTES AND RULES 1373 pleading or notice, within the time limited by these rnles, or the special order of the court in the cause, the oppo- site 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 commissioner or to the court for proofs. (c) If the complainant has failed 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 dismissing the bill of complaint. (d) Any order entered under these rules may be set aside on special motion, for cause shown, in the dis- cretion of the court, on such terms as may be deemed just and proper. But to entitle a defendant to an order setting aside his default for want of appearance or an- swer, he shall proffer a sworn answer showing a defense on the merits as to the whole or a part of the complain- ant'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 default taken. And in any case where personal ser\dce shall have been made upon a de- fendant, an order setting aside his default shall be con- ditioned 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. (Mich. Chancery, Eule 7.)' § 2129. Pleas to a bill and practice thereon, (a) 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 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 1374 EQUITY PRACTICE part of the bill, but in every case in which the bill spe- cially 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. (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 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 defend- ant 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 wTiich 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, the claim- ant 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 taking issue on the plea, the bill, or so much thereof as is cov- ered by the plea, shall be dismissed. (f) If, upon an issue, the facts stated in a plea be de- termined 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. (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. MICHIGAN STATUTES AND EULES 1375 (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. (Mich. Chancery, Eule 8.) § 2130. Demurrers and practice thereon, (a) The form of a demurrer may be as follows: "The defendant says that the complainant has not stated such a ease 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 sub- stance irr a general demurrer, as well as matters of form in a special 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 indi- vidual 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 de- lay and that in his opinion it is well founded. And a demurrer 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. (d) A joinder in demurrer shall not be necessary, and either party may at once notice a 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 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. (Mich. Chancery, Eule 9.) § 2131. Answers and the practice thereon, (a) When- ever in a cause a sworn bill of complainant is filed and a sworn answer demanded, the defendant shall be required 1376 EQUITY PRACTICE to file sucli sworn answer. But neither a sworn bill nor a sworn answer sliall 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 allegations of the an- swer shall be taken as true. (b) An answer may be sworn to before persons and in the manner specified in the rule governing verification 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 separate and distinct allegation, ad- mission 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. (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 as to which the defend- ant 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 ma- terial allegation in the bill to which the defendant shall not make answer shall be taken as admitted by the de- fendant. (e) An answer shall be signed by the defendant, or by his agent or solicitor. (f) All objections to an answer heretofore raised by exceptions shall be disposed of by the court on special motion. (Mich. Chancery, Rule 10.) §2132. Answers in the nature of cross-bills and the practice thereon, (a) 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 ex- MICHIGAN STATUTES AND RULES 1377 tent 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. (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 af- firmative 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 replica- tion to any such plea or answer. (Mich. Chancery, Eule 11.) §2133. Replications, (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 hearing on such bill and answer, unless the time for filing a replication shall be extended. (b) The form of a replication may be in substance as follows: "The complainant says that, notwithstand- ing the answer of the defendant, he is entitled to the re- lief 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. (Mich. Chancery, Eule 12.) §2134. When cause is at issue, (a) Every cause shall be deemed at issue of fact or law on filing a plea of 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. 1378 EQUITY PRACTICE (b) If there be more than one defendant the cause shall be deemed at issue when the replications have been filed to all answers filed, and when an order pro con- fesso has been filed, or entered as to all those defend- ants who have not answered, or when the cause is dis- continued or dismissed as to such defendant. (Mich. Chancery, Rule 13.) § 2135. Proceedings after cause is at issue — ^The tak- ing of testimony, etc. (a) 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 have appeared and an- swered, and whose answers have been replied to, a notice that such cause is at issue; or the solicitor for any de- fendant 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 witness 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 service of such notice shall be filed with the register in chancery. (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 with- out further order, be taken before a circuit court com- missioner, 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 MICHIGAN STATUTES AND RULES 1379 which to put in his rebutting testimony. At least four days' notice shall be given by each party of the time and place taking such testimony. Each party shall pay in the first instance the fees for taking down and tran- scribing his own examinations or cross-examinations. (d) The time for taking testimony may, on motion, for cause shown, be extended. But the party making- application for such extension shall be required to show under oath the specific character of the testimony de- sired. (See Eule 6.) \ (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 aplied to for that pur- pose by either party, shall cause the testimony and ex- hibits 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 subse- quent day in term, not less than ten days after such no- tice, and placed at the foot of the calendar. (i) 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 1380 EQUITY PRACTICE cause for hearing on pleadings. (Mich. Chancery, Eule 14.) § 2136. Certain rules governing in cases at law made applicable in chancery causes, (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.: Eule 11, relative to common and special orders and rules. Eule 16, relative to filing notice of issue. Eule 18, relative to the making of a term calendar. Eule 19, relative to motions and petitions. Eule 20, relative to stay of proceedings to make motions. Eule 22, relative to motions for continuance. Eule 23, relative to genuineness of documents. Eule 25, relative to the court requiring parties to testify. Eules 28, 29, 30, 31, 32 and 34, relative to the manner of the service of papers. Eule 35, relative to when service required. Eule 36, relative to how time computed on service of papers. Eule 37, relative to entitling papers, etc. Eule 38, relative to the court files. Eule 39, relative to agreements to be in writing. Eule 40, relative to affidavit of genuineness of ac- ceptance of service. Eule 41, relative to depositions. Eule 43, relative to compelling return of process. (b) In interpreting said rules in chancery causes, wherever the word '"'attorney" is used, the word "so- licitor" shall be substitiited, and wherever the word "plaintiff" is used, the word "complainant" shall be substituted, and in like manner other words commonly used in chanceiy causes, as distinguished from cases at law, shall be substituted in interpreting said rules. (Mich. Chancery, Eule 15. For law rules referred to see §§ 2158-2179, post, pp. 1396 et seq.) § 2137. Amendment of bill and answer without leave MICHIGAN STATUTES AND RULES 1381 of court, (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 further answer is not rendered necessary. (e) 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 which does not go to the equity of the whole bill, the complainant may amend of course, without costs, at any time before the demurrer is noticed for argument, or within ten days after receiving a copy of the demurrer. (e) If 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. (f ) After an answer is put in, it may be amended with- out leave of 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. (g) But, after replication, or such setting down for a hearing, it shall not be amended in any material matters, as by adding new facts or defenses, or qualifying or altering the original statements, except by leave of the court, upon cause shown, after due notice to the adverse party. (Mich. Chancery, Rule 16.) §2138. Practice on amendments, (a) No rule or or- der need be entered on the filing of amendments which are authorized without leave of court. (b) In every ease of amendment, without leave of court, the party making it shall either file a new engross- 1382 EQUITY PRACTICE 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 amendments shall be considered as made until the same is served upon 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. (Mich. Chancery, Eule 17.) §2139. Proceedings before commissioners, (a) All parties accounting before a commissioner shall bring in their accounts in the form of debtor and creditor; and any of the other parties who shall not be satisfied with the accounts so brought in shall be at liberty to examine the accounting party upon interrogatories, as the com- missioner 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 spe- cial direction for that purpose, unless a contrary direc- tion 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 enter the title of each cause or proceeding in which he shall make any order, and a complete mem- orandum 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. (Mich. Chancery, Eule 18.) §2140. Reports of commissioners and proceedings thereon, (a) 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 MICHIGAN STATUTES AND RULES 1383 time to time, as he shall deem expedient ; the costs of such separate reports to be in the discretion of the-conrt. 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 as- sets; 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 no- tice 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 confirm the report, so far as the same is not expected 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. (Mich. Chancery, Eule 19.) § 2141. Appeals from orders of commissioners, (a) Any person conceiving himself aggrieved by an order made by any circuit court commissioner, in any suit in chan- cery, may appeal therefrom to the Circuit Court of the county in which such suit is pending: Provided (1), that such appeal shall be claimed and entered within fifteen days from the time of making such order; and (2), that the appellant shall, within that time, execute a bond to the appellee in such penal sum, not less than one hundred dollars, as the commissioner shall prescribe, with suffi- cient surety, to be approved by the commissioner, condi- tioned to pay, satisfy and perform the order which by the Circuit Court may be made in the premises, and to pay all costs in case the order appealed from shall be af- firmed. 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 com- missioner on proper cause shown. (b) The appeal bond mentioned in the preceding rule, 1384 EQUITY PRACTICE 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 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, 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. (Mich. Chancery, Eule 20.) § 2142. Restrictions of powers of commissioners. The general powers conferred upon commissioners are hereby restricted in the following particulars: 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 proceed- ings at law unless reasonable notice of the time and place of hearing the application therefor shall have been pre- viously given to the adverse party. 3. Nor shall he grant any injunction without such no- tice 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. 4. Nor shall he grant any injunction restraining the execution or perforamnce 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 MICHIGAN STATUTES AND RULES 1385 injunction 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 suf- ficient, and in not less than $500, with sufficient surety or sureties, to be approved of by the officer allowing the injunction, conditioned to pay the party enjoined such damages as he may sustain by reason of the injunction, if the court shall eventually decide that the complainant was not equitably entitled to such injunction, such 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. (Mich. Chancery, Eule 21.) § 2143. Costs — Solicitors' fees taxable, etc. The fol- lowing 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 taken 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 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 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 1386 EQUITY PRACTICE 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 costs granted by this rule shall be apportioned among them as the court may deem proper. (Mich. Chancery, Rule 22.) § 2144. Taxation of costs. 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 reg- ister shall be heard or allowed. (Mich. Chancery, Eule 23.) § 2145. Enrollment of decree, etc. (a) No process shall be issued or other proceedings had on any final decree, to enforce the same, until the same is duly enrolled pur- suant 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. (Mich. Chancery, Rule 24.) § 2146. Application for rehearing, (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 er- roneous, but it shall not be necessary to state the pro- ceedings anterior to such decree or order sought to be reversed ; and the facts, if they do not appear from the records of the court, shall be verified by affidavit of the party, or of some other person. It shall also be accom- panied by the certificate of two counsel that they have MICHIGAN STATUTES AND RULES 1387 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 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. (Mich. Chan- cery, Eule 25.) § 2147. Bills of revivor and supplemental bills. 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. (Mich. Chancery, Eule 26.) § 2148. Bills of review. On filing a bill of review, or other bill in the nature of a bill of review, the com- plainant 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 com- plained of; and no such bill shall be filed, either upon the discovery of new matters or otherwise, without special leave of the court first obtained, nor unless the same is brought within the time allowed for bringing an appeal, except upon newly discovered facts or evidence, unless upon reasons satisfactory to the court. (Mich. Chan- cery, Eule 27.) § 2149. Practice peculiar to foreclosure cases, (a) In a bill for foreclosure or satisfaction of a mortgage, it shall not be necessary to set out at large the rights and interests of the several defendants who are purchasers of, or who have liens on, the equity of redemption in the mortgaged premises, subsequent to the registry or re- cording of complainant's mortgage, and who claim no right in opposition thereto; but it shall be sufficient for the complainant, after setting out his own right and in- terest in the premises, to state generally that such de- Whitehouse E. P. Vol. 11—32 1388 EQUITY PRACTICE fendants 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 commissioner 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, or any of the defendants are absentees and have not been personally served, the complainant may have a similar order of course, re- ferring it to a commissioner to take proof of the facts and circumstances stated in the complainant's bill, and to compute the amount 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 com- ing in of, the commissioner's report, before a final decree is entered therein. (d) 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 subpoena, or after an appearance, or whether some of them have been proceeded against as absentees. (e) Sales under decrees of foreclosure shall not be or- dered on less than six full weeks or forty -two days' no- tice, and publication shall not commence until the time fixed by decree for payment has expired, nor within a year 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 complain- ant, any defendant, upon filing an affidavit that such sur- plus has been paid into court, and that he is entitled to the same, or some part thereof, may have an order of MICHIGAN STATUTES AND RULES 1389 course, referring it to a commissioner to ascertain and report the amount due to such defendants, or to any other person, and which is a 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 re- port, such further order and decree may be made by the distribution of surplus moneys as may be just; and every defendant who has appeared in the case, and every per- son 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 mak- ing a claim to such surplus moneys, and who shall fail to establish his claim on the hearing before the commis- sioner, may be charged with such costs as the other par- ties have been subjected to by reason of such claim; and the parties succeeding on such reference may be allowed such costs as by the court may be deemed reasonable; but no costs unnecessarily incurred on such reference, or previous thereto, by any of the parties, shall be allowed on taxation or paid out of such surplus. (Mich. Chan- cery, Eule 28.) §2150. Practice peculiar to creditors' bills, (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 other- wise, and that the debtor has equitable interests, exceed- ing one hundred dollars in value, which the complainant is unable to reach by execution, which has been duly is- sued and returned unsatisfied, and that the bill is not ex- hibited by collusion with the defendant, or for the pur- pose of protecting the property or effects of the debtor against the claims of other creditors, but for the sole purpose of compelling payment and satisfaction of the complainant's own debt. (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 1390 EQUITY PRACTICE called for. If he fail so to do, the complainant may have his right to a further answer and disclosure determined bj^ the court on special motion, and the court may enforce its order thereon by the attachment of the defendant, 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 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. (Mich. Chancery, Eule 30.) § 2151. Receivers — Their powers and duties — ^Practice. (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 of the debtor without the special order of the court. He is not to be allowed for the costs on 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. MICHIGAN STATUTES AND RULES 1391 (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 shall hold such property and effects for the bene- fit of all creditors who have commenced, or shall com- mence, 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 spe- cially 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 ap- pointed 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. (Mich. Chancery, Eule 31.) § 2152. Moneys in hands of register of court — How de- posited and drawn, (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 ac- count, 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 1392 EQUITY PEACTICE suit, or on what account, the money is to be paid out, and the time when the decree or order authorizing such pay- ment was made. § 2153. Security by guardian ad litem, etc. No guard- ian 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 an infant receive any part of the proceeds of the sale of real property belonging to such infant, sold under a decree or order of the court, until the guardian has given such further security for the faithful discharge of his trust as the court may direct. (Mich. Chancery, Eule 33.) § 2154. Assignment by complainant of subject-matter of suit — Proceedings thereon. Whenever the complain- ant in a chancery suit, wherein the right is under exist- ing rules of law and equity assignable, shall have trans- ferred 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 transferee may present his petition to the court in which said suit is pending, setting up the fact of such transfer, and asking to be substi- tuted as complainant in said suit. The facts, if they do not appear from the records of the court, shall be veri- fied 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 substituting 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 iiffidavits, 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, re- quire the ti'ansferee to file security for costs. (Mich. Chancery, Rule 34.) § 2155. General practice of court. In cases where no MICHIGAN STATUTES AND EULES 1393 provision is made by statute or by these rules, the pro- ceedings of this court shall be according to the customary practice, as it has heretofore existed in cases not provided for by statute or the written rules of the court. (Mich. Chancery, Eule 35.) § 2156. When rules to take effect. These rules shall take effect January 1, 1897, as to all causes commenced on and after that date, and also as to any cause com- menced previous to that date, so far as concerns pro- ceedings therein subsequent to the date when the same shall be at issue. All rules not herein contained are hereby repealed, except as above provided. (Mich. Chan- cery, Eule 36.) § 2157. Appeals — Settlement of case, (a) In all causes and proceedings in chancery after final order or decree where the testimony shall have been taken by a stenog- rapher 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 evidence therein for all purposes of review on appeal to the Supreme Court. (b) The person or party desiring to appeal to the Su- preme 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 so- licitor 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 being made to the judge who heard said cause of proceed- ings, or in his absence or disability, then to such other judge as may be authorized by the provisions of this rule 1394 EQUITY PRACTICE to act in any matter in connection with settling cases for review on appeal, may be required to fumisli 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 such judge to the settlement of said case. (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 ]iis so- licitor 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 pro- ceedings, or in case of his absence or disability, then to such other judge as may be authorized to act in any mat- ter in connection with the settling of cases for review on appeal, either in open court or at chambers as the case may be and to be specified in said notice at some date not less than four nor more than six days from the date of the service of said proposed amendments and papers in connection therewith. (d) The judge before whom the settlement of said case on appeal shall have been noticed shall, at the time speci- fied in said notice, or at such other time as he shall fix, or shall be agreed upon in open court, or by the written stipulation of the parties, proceed to consider the matter and to settle and sign said case on appeal : Provided, not MICHIGAN STATUTES AND RULES 1395 more than one year from the date of the filing and entry of the final order or decree sought to be appealed 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 case on 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 other- wise, to his satisfaction that due service of the papers required to be served by the party seeking the appeal was made upon the adverse 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 1396 EQUITY PRACTICE 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 cir- cuit judge of an adjoining circuit. (h) The judge who heard such cause or proceeding, or any other circuit judge holding court within the judicial district and duly qualified to preside over the court where such cause or proceeding was heard, may grant an extension 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 record, of the hearing of the application therefor. (Mich. Chancery, Rule 37.) Law Rules Made Applicable in Chanceey Causes The following rules governing in cases at law are, by Chancery Eule 15, made applicable in chancery causes: §2158. Common and special order and rules, (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 rule. All com- mon rules and all rules by consent of parties shall be entered with the clerk at his office, in a book to be pro- vided by him for that purpose, to be called "Common Eule 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 MICHIGAN STATUTES AND RULES 1397 filed with the cleric 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. (Mich. Law, Eule 11.) § 2159. Notes of issue, (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 names of the attorneys, the date of joining issue or of filing appeal, and the cause of action. If a jury has previously 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 file(^. And in appeal causes, the note of issue shall be filed eight days before the first day of the term. (b) The prosecuting attorney shall, at least four days before the first day of term, deliver to the clerk a list of all such criminal cases as he intends to bring on to trial, or in which any action of the court may be required. (Mich. Law, Rule 16.) § 2160. Term calendar — How made up. (a) Previous to each term the clerk shall prepare a calendar of causes for the term. The same shall be made up in the follow- ing 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 chancery cases shall have precedence in the order of the respective dates of joining issue, or, in appeal causes, the respective dates of filing the appeal. (Mich. Law, Eule 18.) § 2161. Motions and petitions, (a) All petitions and special motions (except motions for continuance and mo- tions to strike causes from calendar) shall be in writing and shall be signed by the attorney, or counsel, of the 1398 EQUITY PRACTICE party in whose behalf the same are entered, and shall set out briefly but distinctly the grounds upon which the game are founded, and with the affidavits supporting the same shall be filed in the office of the clerk of the court on or befor the day on which they are noticed for argument. (b) Notice 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. (c) Motions and petitions shall be argued on the day for which they are noticed, if the party has an oppor- tunity 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 con- tinued from day to day until it is completed; or it may be adjourned to some subsequent day. And motions and petitions which can not 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 continuance. (d) Not more than 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. (Mich. Law, Eule 19.) § 2162, Stay of proceedings to make motions. When- ever 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 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 MICHIGAN STATUTES AND RULES 1399 according to the practice of the court, and if made, until Lhe decision of the court thereon. (Mich. Law, Rule 20.) §2163. Motions for continuance, (a) No motion for the continuance of a cause made after the first day in term shall be heard, unless a sufficient excuse is shown for the delay, and on a second application 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 pro- cure his attendance. In case it is admitted by the oppo- site 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 contin- uance necessary. (b) If the party receiving notice of trial shall serve a notice on the opposite party that he will move for a con- tinuance of the cause at the term for whi^h it is noticed, together with a copy of the affidavits upon which he in- tends to found the motion, he shall not be liable to such party for any costs of preparing to try the cause, ac- cruing 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 cost. (Mich. Law, Rule 22.) § 2164. Genuineness of documents. Either party may exhibit to the other, or to his attorney, at any time before the trial, any paper material to the action, and request an admission in writing of its genuineness. If the ad- verse 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 afterward put to ex- 1400 EQUITY PRACTICE pense in order to prove its genuineness, and tlie same be finally proved or admitted on the trial, sucli expense, to be ascertained and summarily taxed at the trial, shall be paid by the party refusing admission, unless it shall appear to the satisfaction of the court that there were good reasons for the refusal, and an attachment or exe- cution may be granted to enforce the payment of such expenses. (Mich. Law, Rule 23.) § 2165. Court may require parties, etc., to testify. 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 ap- pearance of such party or witness before the court. (Mich. Law, Eule 25.) § 2166. Service of papers. "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 morn- ing and nine in the evening, in some suitable and con- spicuous place in such office. (d) Or, if the office be not open, so as to admit of serv- ice 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, enclosed in an envelope, plainly addressed to such attorney, with postage fully prepaid. (Mich. Law, Eule 28.) § 2167. Service of papers by mail. When the attorney resides or has his office in a different city, village or town- ship than the attorney making the service, papers shall be served as follows: (a) By delivering the same to the attorney personally, MICHIGAN STATUTES AND RULES 1401 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 di- rected to the attorney at his business address, with post- age fully prepaid, such address to be ascertained accord- ing to the best information and belief of the person mak- ing such service. And in such case the time of service must be increased one day for every one hundred miles distance, or fraction thereof, -between the place of deposit and the place of address. (Mich. Law, Eule 29.) § 2168. Service where there are several defendants or several attorneys, (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 l^arty or parties, service on any one of the said attor- neys, whether they be partners or not, shall be sufficient. But this shall not apply to attorneys appearing as "coun- sel" only. (Mich. Law, Eule 30.) § 2169. Service on party prosecuting or defending in person. 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 attorneys, whether such party be a licensed attorney or not. (Mich. Law, Eule 31.) § 2170. Service in exceptional cases. In all cases where service of papers can not 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 case is pending, or judge thereof at chambers, upon an ex parte application, on cause shown, may direct in what manner and on whom services may be had, and on whom service may be made. (Mich. Law, Eule 32.) §2171. Service on party charged with contempt and on party imprisoned, (a) When the object is to bring 1402 EQUITY PRACTICE the party into contempt for disobeying any order of the court, the service shall be on such party personally, unless otherwise 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 bail, and no no- tice of retainer of an attorney to defend is given, notice of such exception shall be delivered to the sheriff or one of his deputies. (Mich. Law, Rule 34.) § 2172. When service required. No service of papers shall be necessary on a defendant who has not regularly appeared, except as specially required by rule or stat- ute. But a defendant who has appeared by notice of re- tainer or appearance shall be entitled to notice in advance of all future proceedings in the cause, although he may not have followed his appearance by plea or demurrer. (Mich. Law, Rule 35.) § 2173. How time computed on service of papers, etc. (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 there- with. (b) When, by the terms of any order, an act is directed to be performed instanter, it shall be done within twenty- four hours. (Mich. Law, Rule 36.) § 2174. Entitling papers, etc. (a) All papers and the copies thereof for service shall be fairly and legibly writ- ten 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 court and cause, and the plaintiff's names shall be placed first. Provided, that affidavits annexed to and referring to an- MICHIGAN STATUTES AND RULES 1403 other paper which is properly entitled in the court and cause need not be entitled. (c) In cases where there are two or more plaintitfs, 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 no- tices required to be published the full names of all par- ties 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. (Mich. Law, Rule 37.) § 2175. The court files. The clerk shall indorse on every paper the day on which the same is filed, and shall not suffer or permit any writ, pleading, affidavit, deposi- tion, 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. (Mich. Law, Rule 38.) § 2176. Agreements to be in writing. No private agree- ment 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 subscribed by the party or his attorney against whom the same is alleged. (Mich. Law, Rule 39.) § 2177. Affidavit of genuineness of acceptance of ser- vice. When a defendant accepts or acknowledges in writing the service of any process, pleading or notice, and an affidivit is filed therewith, showing the genuine- ness of his signature, the same shall have the same effect as a return or other legal proof of service. (Mich. Law, Rule 40.) § 2178. Depositions, (a) When a deposition has been taken by either party, it may at any time be read by the other party on the trial. Whitehouse E. P. Vol. II — 33 1404 EQUITY PRACTICE (b) Objections to notices of, or objections to the man- ner of taking the testimony, or of certifying or returning the deposition, shall be regarded as waived, unless made in writing within three days after knowledge or notice of the return thereof. (Mich. Law, Eule 41.) § 2179. Compelling return of process. If any sheriff or coroner shall fail to return any process to him directed and delivered, on or before the return day therein speci- fied, 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 return 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 process to such officer to be served, the default of such officer in not mak- ing such return may be entered, and thereupon an attach- ment may be issued of course against such sheriff or cor- oner to compel such return. (Mich. Law, Rule 43.) CHAPTER XXXVIII MISSISSIPPI STATUTES * Appeals § 2180. Appeal from final judgments or decree. An appeal may be taken to the supreme court from any final judgment of a circuit court in a civil case, not being a judgment by confession or from any final decree of the chancery court, not being by consent, by any of the par- ties or legal representatives of such parties ; , but such appeal shall operate as a supersedeas only when the party applying for the same shall comply with the terms here- inafter prescribed; and in no case shall such appeal be held to vacate the judgment or decree. (Miss. Code 1906, §33.) § 2181. Appeal on overruling demurrer. When a de- murrer shall be overruled in a chancery court, or by the chancellor in vacation, the party demurring may appeal to the supreme court, without being first compelled to answer; and, if the decree be affirmed, the cause shall be remanded, to be proceeded with according to the practice of the court; but such appeal must be applied for, and bond given, within ten days after the demurrer is over- ruled, if in term time, and if decided in vacation within thirty days after the decree is filed in the proper office. Such appeal must be allowed by the court or the chan- cellor; but the appeal bond may be approved by the court or chancellor, or the clerk. (Miss. Code 1906, § 34.) * Code of 1906, as amended, corrected to January 1, 1915. Chancellor Tyell of Mississippi writes the author as follows: "We have no codified rules upon equity procedure and practice, except such as may be found in our statute law. Otherwise we follow general equity procedure and practice. ' ' 1405 1406 EQUITY PRACTICE §2182. Appeal from interlocutory order. An appeal may be granted by the chancellor in term time, or in vacation, from any interlocutory order or decree where- by money is required to be paid, or the possession of prop- erty changed, or when he may think proper in order to settle the principles of the cause, or to avoid expense and delay; but such appeal shall be applied for within ten days after the date of the order or decree complained of; and bond shall be given and approved as in appeals from a decree overruling a demurrer, and the chancellor shall determine whether the appeal shall operate as a super- sedeas or not. (Miss. Code 1906, § 35.) § 2183. How appeal obtained. The mode of obtaining an appeal from any judgment or decree, other than such as are provided for to be granted by the court or chan- cellor, shall be by petition, in writing, to the clerk of the court where the judgment or decree was rendered, or where the record of the judgment or decree to be ap- pealed from may be. (Miss. Code 1906, § 41.) § 2184. The petition. The petition for appeal need only state the rendition of the judgment or decree to be ap- pealed from, and ask for an appeal; and such petition shall be marked by the clerk "filed," and shall be dated and the marking filed shall be signed by him ; and he shall copy said petition, with the indorsements on it, in the transcript of the record to be made by him ; and the time of presenting such petition for an appeal shall be con- sidered the time of taking the appeal, if bond be then given as required. (Miss. Code 1906, § 42.) § 2185. Petition not necessary to the validity of appeal. A written petition for an appeal shall not be necessary to its validity, but filing in the office of the clerk of the su- preme court a transcript of the record of the case in which the appeal is taken shall confer jurisdiction on the supreme court to try and dispose of the case; and where there is no petition for the appeal, it shall be con- sidered to have been taken when the appeal-bond was filed; or, if there be no bond, from the time of filing the transcript of the record in the office of the clerk of the supreme court. (Miss. Code 1906, § 47.) MISSISSIPPI STATUTES AND RULES 1407 § 2186. Bonds in civil cases on appeal without super- sedeas. On appeals from decrees overruling demurrers or other interlocutory orders or decrees, or where the appeal is granted to settle the principles of the case and the chancellor shall not allow a supersedeas, or on ap- peals from final judgments of a circuit court in civil cases, or from final decrees of a chancery court, where the ap- pellant shall not desire a supersedeas, it shall be suffi- cient if the appellant give bond to the opposite party, with two or more sufficient resident sureties, or one or more guaranty or surety companies authorized to do business in this state, in the penalty of five hundred dol- lars, conditioned for the payment of all the costs of ap- peal in case the judgment or decree be affirmed as to such appellant; but if appellant prepay the cost of the transcript, a bond for the sum of one hundred dollars shall be sufficient, or the appellant may deposit that sum with the clerk in lieu of the bond; but in cases where supersedeas is not desired and the cost of transcript shall not be prepaid, if the clerk of the court or any party to the suit shall apprehend that the costs of the transcript of the record and of the appeal will exceed five hundred dollars, such clerk or party may apply to the court in which such suit shall have been decided, or to the judge or chancellor in vacation, and an order may be made by the court, judge, or chancellor, fixing the amount of such bond for costs of appeal. (Miss. Code 1906, § 49.) § 2187. Bond for supersedeas. On appeal from any interlocutory decree, where the chancellor shall allow a supersedeas, and on appeal from a final decree of the chancery court, or the final judgment of the circuit court where the appellant shall desire a supersedeas, bond shall be given by the appellant, payable to the opposite party, with two or more sufficient resident sureties, or one or more guaranty or surety companies authorized to do business in this state, in a penalty double the amount of the decree or judgment appealed from, or double the amount of the value of the property or other matter in controversy, to be determined by the officer granting the appeal, conditioned that the appellant will satisfy the 1408 EQUITY PRACTICE judgment or decree complained of, and also such final judgment as may be made in the cause, and all costs, if the same be affirmed, and a supersedeas shall not issue until such bond shall have been given; and a supersedeas shall not be granted in any case pending in the supreme court, unless the party applying for it shall give bond as above required. (Miss. Code 1906, § 50.) § 2188. Appeals to be granted and bonds approved by clerk. In all cases, except appeals from decrees over- ruling demurrers in chancery and appeals from interloc- utory decrees in chancery, appeals to the supreme court may be granted by the clerk of the court from which such appeals can be taken, and in which the judgment or de- cree was rendered ; and in all cases not otherwise provided the clerk shall approve the appeal bond. (Miss. Code 1906, § 60.) ■ §2189. Bond to be given to perfect an appeal. Ex- cept as herein otherwise provided, an appeal shall not be considered as perfected, or a supersedeas awarded there- on, unless the bond required shall have been given and approved. (Miss. Code 1906, § 61.) §2190. Duty of clerk when appeal is taken. When the appellant shall have complied with the law applicable to his appeal, the clerk of the court from which the ap- peal is taken shall immediately make and certify a tran- script of the record of the case, and transmit it and the appeal-bond taken, except the bail-bond in cases of mis- demeanor, to the clerk of the supreme court; and in all civil cases, where the appeal is not perfected during the term of the court at which the judgment or decree com- plained of is rendered, he shall issue a summons to the opposite party to appear and answer the appeal in the supreme court. A copy of the appeal-bond shall be kept by the clerk as a part of the record of the case, and judg- ment may be rendered by the supreme court against the obligors in the bond without notice, or the representa- tives of any who have died after due notice ; and in cases remanded to the court below to ascertain the amount re- coverable on any such bond, the copy kept in the clerk's office shall be admissible in evidence, or the original may MISSISSIPPI STATUTES AND EULES 1409 be obtained from tbe clerk of the supreme court for use in the court below. (Miss. Code 1906, § 69.) PowEES OF Chancellor § 2191. Powers of the chancellor. A chancellor shall be appointed for and from each of said districts.* He may hold terms of court in any other district with the consent of the chancellor thereof when in their opinion the public interest may require. (Miss. Code 1906, § 505.) § 2192. The chancellor may try causes in vacation. A chancellor may deliver opinions and make and sign de- crees in vacation in causes taken under advisement by him at a term of the court ; and by consent of the parties or of their solicitors of record, he may try causes and deliver opinions and make and sign decrees therein in vacation. Such decrees and all other orders and decrees which a chancellor may make in vacation shall be entered and recorded on the minute book of the court in which the cause or matter is pending, and shall have the same force and effect as if made, entered and recorded in term time, and appeals may be had therefrom as in other cases. (Miss. Code i906, § 506.) § 2193. Additional powers of chancellor in vacation. In the matter of ordering, decreeing and confirming sales of real and personal property of decedents, or of minors, or of persons of unsound mind, and in all other matters testamentary or of administration, in minors' business, matters affecting persons of unsound mind, and in the matter of the removal of disabilities of minority, the chan- cellors of the several districts of this state are hereby authorized and empowered to do in vacation all things, and to exercise all the powers in such matters that could be done by them in term time ; and all laws governing the action of the chancery court in such matters, and the process and procedure therein, shall apply when the chan- cellor shall act therein in vacation; but before any sale of real estate shall be confirmed by the chancellor in vaca- tion the parties in interest shall have notice thereof as * The state is divided into eight Chancery Districts. 1410 EQUITY PRACTICE now provided by law in the matter of confirming sales by chancellors in vacation. (Miss. Code 1906, § 507.) Acts of Cleek of a Quasi Judicial Chakactbe § 2194. Acts clerk may perform at any time. The clerk or his deputy may at any time receive and file all bills, petitions, motions, accounts, inventories, reports, or other papers offered for that purpose, and may issue all process authorized by law and proper in any matter or proceed- ing; he may issue warrants of appraisement, to appraise the personal estate of decedents; may allow and register claims ag'ainst estates being administered in the court of which he is clerk; may make all orders and issue all process necessary for the collection and preservation of estates of decedents, minors, and persons of unsound mind; may appoint some person to collect and preserve the estate of any decedent in the state of case provided for; may grant letters of administration to the husband or wife, or other person entitled thereto; may take the proof of wills, grant letters testamentary, letters of ad- ministration with the will annexed, and de bonis non; ap- point guardians for minors, persons of uiisound mind, and convicts of felony; may grant letters of administra- tion to institute suits in cases provided for, and, when- ever an appeal shall be taken from the grant of letters testamentary, of administration, or guardianship, he may appoint some fit person to discharge the duties pending the appeal, and may do all such other acts as are pro- vided by law to be done by him in. vacation and are not directed to be done only on the monthly rule-days. (Miss. Code 1906, § 517.) § 2195. Monthly rules, and what then may be done. Rules shall be held in the clerk's office, under the direc- tion of the clerk or his deputy, on the second Monday of every month in vacation, for hearing such matters and doing such acts as may be then done ; and such rules may continue from day to day as business may require. At said monthly rules the clerk or his deputy may do the following acts, in addition to what he may do at any other time, that is to say: He may compel the return of MISSISSIPPI STATUTES AND RULES 1411 inventories, as required by law, and the presentation of either annual or tinal accounts by executors, adminis- trators or guardians, and may approve and allow such annual accounts ; he may refer any claim against an estate which is contested by the executor or administrator, or other person interested, to auditors, and receive and act on their report, as provided' by law in such cases; may make all orders and do all acts necessary to the set- tlement of insolvent estates and the ascertainment of the rights of creditors, and distribution of the assets accord- ing to law after the estate has been declared insolvent by the court, and the lands and personal estate have been decreed by the court to be sold; may require any execu- tor, administrator, or guardian to give new bonds and sureties in cases provided by law, and, in default thereof, revoke the letters, and grant letters anew; and may re- quire new bonds and sureties in such cases as are pro- vided for, on the application of the sureties of any execu- tor, administrator, or guardian, and revoke the letters if such bond and sureties are not given; and may require executors relieved by the will from giving security to give it in the cases provided for; may enter decrees nisi; make all orders of course; enter orders of revivor in the name of the representatives of any party to any suit who has died; orders for taking bills as confessed; and may do all such other acts as are authorized. (Miss. Code 1906, § 518.) § 2196. All acts of clerk subject to approval or disap- proval. All acts, judgments, orders, or decrees made by the clerk in vacation or at rules, shall be subject to the approval or disapproval of the court of which he is clerk, and shall not be final until approved by the court. (Miss. Code 1906, § 519.) § 2197. Minutes of proceeding's in vacation. The clerk shall enter at large on the minute-book every order made by him in vacation, as orders are entered in term-time. Immediately following the minutes of the court at its last preceding term, the clerk shall commence the min- utes of acts done in vacation with the caption as follows : ' ' Minutes of the chancery court of county, in 1412 EQUITY PRACTICE vacation before the clerk;" and the minutes of each monthly rule-day shall have this beginning: "At rules in the clerk's office, on the second Monday and day of , A. D , " and, at the expiration of monthly rules, each month, said clerk shall enter an adjourning order, as to such rules, so as to distinguish acts done at rules from other acts done in vacation. (Miss. Code 1906, § 520.) § 2198. How such minutes preserved and approved. The minutes, so kept, shall constitute a record of the office and shall be carefully preserved as such, free from erasure or alteration; and, at the first term thereafter of the court, shall be examined by the court, and, if ap- proved, shall thereby become the minutes of the court, as if entered at a term thereof; and all the orders and de- crees entered in said minutes in vacation, shall, by such approval of the court, become final and be as valid and effectual as if done by the court when they were done by the clerk. (Miss. Code 1906, § 521.) § 2199. How approval of vacation orders shown. The approval by the court of minutes entered in vacation, and adoption of the orders and decrees made by the clerk, may be evidenced by an order of the court approving such orders and decrees, excepting such as may be spec- ified as not approved; and it shall not be necessary to enter on the minutes of the court, in term-time, any of said orders or decrees made in vacation, but the same as entered in vacation, shall, by the approval of the court, become the acts of the court. (Miss. Code 1906, § 522.) § 2200. Orders of clerk in vacation may be suspended. All such orders and proceedings of the clerk may, by order of the chancellor in vacation, be suspended until a hearing before him in court, and shall be subject to such orders and decrees as the court may make. (Miss. Code 1906, § 523.) § 2201. Bonds examined by chancellor. The chancel- lor shall, at each term of the court, carefully examine all bonds taken by the clerk in vacation, in pursuance of any order of the court, or the requirement of law, in any proceeding in such court, and make such orders in MISSISSIPPI STATUTES AND RULES 1413 reference thereto as he shall deem necessary for the security of the parties interested therein. (Miss. Code 1906, § 524.) § 2202. How proceedings before clerk to be conducted. In all applications and proceedings before the clerk in vacation, the same pleadings and evidence and forms shall be observed, and the same process and service and return shall be necessary, as though the proceedings were before the court. (Miss. Code 1906, § 525.) § 2203. Abstract of certain decrees furnished circuit clerk. The clerk of the chancery court shall, within ten days after the expiration of the term at which any de- cree for money shall be made, which is enforceable by execution against the defendant, furnish an abstract of such decree to the clerk of the circuit court of the county in which such decree is made; and it shall be the duty of the circuit clerk forthwith to enroll the same on the ' ' Judgment Eoll ' ' in his office as judgments of the circuit court are required to be enrolled. (Miss. Code 1906, § 528.) Attachment § 2204. Attachment against non-residents. The chan- cery court shall have jurisdiction of attachment suits based upon demands founded upon any indebtedness, whether the same be legal or equitable, or for the re- covery of damages for the breach of any contract, ex- press or implied, or arising ex delicto against any non- resident, absent or absconding debtor, who has lands and tenements within this state, Or against any such debtor and persons in this state who have in their hands ef- fects of, or are indebted to, such non-resident, absent or absconding debtor. The court shall give a decree in personam against such non-resident, absent or absconding debtor if summons has been personally served upon him, or if he has entered an appearance. (Miss. Code 1906, § 536.) § 2205. — How effects or indebtedness bound. When a bill shall be filed for an attachment of the effects of a non-resident, absent or absconding debtor in the 1414 EQUITY PRACTICE hands of persons in this state, or of the indebtedness of the defendant in this state to such non-resident, absent or absconding debtor, it shall be sufficient, to bind such effects or indebtedness, that the summons for the defend- , ant resident in this state shall have stated in or endorsed upon it the nature and object of the suit, and that it is to subject the effects in the hands of the resident defend- ant, and the indebtedness of such defendant to the non- resident, absent or absconding debtor, to the demand of the complainant; or, instead of such statement on the summons, a copy of the bill may be served with the sum- mons, and shall bind the effects or indebtedness from the time of such service. (Miss. Code 1906, § 537.) § 2206. — How land levied on. If the land of the non- resident, absent or absconding debtor be the subject of such suit, a writ of attachment shall be issued, and shall be levied by the sheriff or other officer as such writs at law are required to be levied on land, and shall have like effect. (Miss. Code 1906, § 538.) § 2207. — Writs of sequestration. Writs of sequestra- tion may be issued for personal property in such cases as in others. (Miss. Code 1906, § 539.) §2208. — Publication for defendant and his appear- ance. The non-resident, absent or absconding debtor shall be made a party to such suit by publication of sum- mons as in other cases, and may appear and plead, demur or answer, to the bill without giving security; but the lien of the creditor upon the property attached shall not be affected thereby unless security be given. If such debtor appear, he may give satisfactory security for per- forming the decree, and thereby discharge the lien, the court, or chancellor in vacation, approving the security and making an order to that effect; but if such debtor fail to appear, or fail to give security, the court shall have power to make any necessary orders, and to re- ((uire security, to restrain the defendants within this state from paying, conveying away, or secreting the debts by them owing, or the effects in their hands be- longing to the non-resident, absent or absconding defend- ant, and may order such debts to be paid, or such effects MISSISSIPPI STATUTES AND RULES 1415 to be delivered to the complainant, on Ms giving security for the return thereof in such manner as the court may direct. (Miss. Code 1906, § 540.) § 2209. — A complainant to give security after decree, etc. If a decree be rendered in such case without the appearance of the absent debtor, the court, before any proceedings to satisfy said decree, shall require the complainant to give security for abiding such further orders as may be made, for restoring of the estate or effects to the absent defendant, on his appearing and answering the bill within two years ; and if the complain- ant shall not give such security, the effects shall remain under the direction of the court, in the hands of a re- ceiver, or otherwise, for such time, and shall then be dis- posed of as the court may direct. (Miss. Code 1906, § 541.) Suits to Tey Title § 2210. Any other title may be confirmed. The owner in possession of any land, or the owner thereof who may be out of possession, if there be no adverse occupancy thereof, may file a bill in the chancery court to have his title confirmed and quieted ; and the law for notice, proc- ess, proceedings, and- practice, as provided for confirm- ing and quieting tax titles shall apply, no matter, by what tenure the complainant may hold; and unknown and non-resident parties may be made defendants as they are made defendants to proceedings to confirm tax titles. If on the final hearing of any such suit the court shall be satisfied that the complainant is the real owner of the land, it shall so adjudge, and its decree shall be conclusive evidence of title as determined from the date of the decree as against all parties defendant. (Miss. Code 1906, § 549.) § 2211. Removing clouds upon titles. When a person, not the rightful owner of any real estate, shall have any conveyance or other evidence of title thereto, or shall assert any claim, or pretend to have any right or title thereto, which may cast doubt or suspicion on the title of the real owner, such real owner may file a bill in 1416 EQUITY PRACTICE the chancery court to have such conveyance or other evidence or claim of title canceled, and such cloud, doubt or suspicion removed from said title, whether such real owner be in possession or not, or be threatened to be disturbed in his possession or not, and whether the de- fendant be a resident of. this state or not; and any per- son having the equitable title to land may, in like cases, file a bill to divest the legal title out of the person in whom the same may be vested, and to vest the same in the equitable owner. (Miss. Code 1906, § 550.) § 2212. Title of complainant must be deraigned; and decrees, in certain cases, recorded as deeds. In bills to confirm title to real estate, and to cancel and remove clouds therefrom, the complainant must set forth in plain and concise language the deraignment of his title; and a mere statement therein that complainant is the real owner of the land shall be insufficient, unless good and valid reason be given why he does not deraign his title; and in all such cases final decrees in the complainant's favor shall be recorded in the record of deeds, and shall be indexed as if a conveyance of the land from the de- fendant 01^ each of them, if more than one; to the com- plainant or complainants, if more than one. (Miss. Code 1906, § 551.) §.2213. May decree possession, rents, etc. In suits to try title, to cancel deeds and other clouds upon title, and to confirm title to real estate, the chancery court shall have jurisdiction to decree possession and to displace possession, to decree rents and compensation for im- provements and taxes; and in all cases where said courts heretofore exercised jurisdiction auxiliary to courts of common law, it may exercise such jurisdiction to grant the relief sought, although the legal remedy may not have been exhausted or the legal title established by a suit at law. (Miss. Code 1906, § 552.) Ceeditoes' Suits § 2214. Creditors may attack fraudulent conveyances, etc. The said court shall have jurisdiction of bills ex- hibited by creditors who have not obtained judgments MISSISSIPPI STATUTES AND RULES 1417 at law, or, having judgments, have not had executions returned unsatisfied, whether their debts be due or not, to set aside fraudulent conveyances of property, or other devices resorted to for the purpose of hindering, delay- ing or defrauding creditors; and may subject the prop- erty to the satisfaction of the demands of such creditors as if complainants had judgments and execution thereon returned ' ' no property found. ' ' Upon such a bill a writ of sequestration or injunction, or both, may be issued upon like terms and conditions as such writs may be issued in other cases, and subject to such proceedings and provisions thereafter as are applicable in other cases of such writs; and the chancellor of the proper district shall have power and authority to grant orders for re- ceivers, in same manner as if the creditor had recovered judgment and had execution returned "no property found. ' ' The creditor in such case shall have a lien upon the property described therein from the filing of his bill, except as against bona fide purchasers before the service of process upon the defendant in such bill. (Miss. Code 1906, § 553.) Contempts § 2215. May summon all persons and punish for con- tempt. The chancery court shall have power to issue a summons for any person, or subpoena for any witness, whose appearance in court may be deemed necessary for any purpose, whether such party or witness reside in the same or any other county; and it shall be the duty of the party summoned or subpoenaed, to attend the court according to the command of the process; and if it be necessary or proper to enforce the appearance of the party, the court, on the return of the process executed and failure to appear, may issue an attachment, and may find the party when brought in for a contempt. If a witness before the court shall refuse to testify, the court may commit such witness fo.E contempt of the court. (Miss. Code 1906, § 557.) 1418 EQUITY PRACTICE Miscellaneous Provisions § 2216. Issue may be tried by a jury. The chancery court, in a controversy pending before it, and necessary and proper to be tried by a jury, shall cause the issue to be thus tried to be made up in writing. The jury shall be drawn in open court from the jury box used in the circuit court, in the presence of the clerk of the circuit court, who shall attend with the box for that purpose. The number drawn shall not exceed twenty, and the slips containing the names shall be returned to the box. The clerk of the chancery court shall issue the venire facias to the sheriff, returnable as the court shall direct. If there be no jury box the jury may be obtained as provided for in the circuit court in such case. The sheriff and jurors, for failure to perform duty or to attend, shall be liable to like penalty as in the circuit court. The parties shall have the same right of challenge as in trials in the circuit court, and the jury may be completed in the same manner. The chancellor may instruct the jury in the same way that juries are instructed in the circuit court, and the parties shall have the same rights in re- spect thereto; the instruction shall be filed in the cause and become a part of the record, and the chancellor shall sign bills of exceptions as in the circuit court, and the court may grant new trials in proper cases. (Miss. Code 1906, §558.) § 2217. Change of venue in jury cases allowexJ, etc. The chancery court, or the chancellor in vacation, may award a change of venue for the trial of all issues of fact to be tried by a jury, to some convenient county, in the same manner, and upon the same terms, and for the same causes provided for in the circuit court; and the application for a change of venue, and the order for it, in term-time or vacation, shall be as required in such case in the circuit court. And the clerk of the court from which the issue is to be removed, and the clerk of the court to which it is removed, respectively, shall, upon an order for a change of venue, discharge the duties directed to be performed by the clerks of circuit courts in such cases ; MISSISSIPPI STATUTES AND RULES 1419 and in such case the chancery court to which the venue is changed shall try the issue by a jury, and shall pro- ceed and render decrees and finally dispose of the cause as if the suit had begun therein. (Miss. Code 1906, § 559.) §2218. Power to punish for violation or injunction, etc. The chancery court, or the chancellor in vacation, or judge granting the writ, shall have power to punish any person for breach of injunction, or any other order, decree, or process of the court, by fine or imprisonment, or both, or the chancellor or judge granting the writ may require bail for the appearance of the party at the next term of the court to answer for the contempt; but such person shall be first cited to appear and answer. And any person so punished by order of the cha-ncellor in vacation, may, on five days' notice to the opposite party, apply to a judge of the supreme court, who, for good cause shown, may supersede the punishment until the meeting of the said chancery court. (Miss. Code 1906, § 560.) § 2219. Venue of suits. Suits to confirm title to real estate, and suits to cancel clouds or remove doubts there- from, shall be brought in the county where the land, or some part thereof, is situated; suits against executors, administrators, and guardians, touching the perform- ance of their official duties, and suits for an account and settlement by them, and suits for the distribution of per- sonalty of decedents among the heirs and distributees, and suits for the payment of legacies, shall be brought in the chancery court in which the will was admitted to probate, or letters of administration were granted, or the guardian was appointed; other suits respecting real or personal property may be brought in the chancery court of the county in which the property, or some por- tion thereof, may be; and all cases not otherwise pro- vided may be brought in the chancery court of any county where the defendant, or any necessary party defendant, may reside or be found ; and in all cases process may issue to any county to bring in defendants and to enforce all orders and decrees of the court. (Miss. Code 1906, § 561.) § 2220. The writ of sequestration. When a bill is filed Whitehouse E. P. Vol. II — 34 1420 EQUITY PRACTICE in the chancery court in reference to personal property, and affidavit and bond as required therefor is made and filed, the clerk of the court shall issue a writ of seques- tration. (Miss. Code 1906, § 562.) § 2221. — I Affidavit required. Before any writ of se- questration shall issue, the complainant shall make and file an affidavit showing that he has good cause to be- lieve, and does believe, that there is danger of the re- moval of the property involved in the suit beyond the limits of the state, or of its concealment in the state so as to be beyond the process of the court, or of its trans- fer so as to defeat the rights of the complainant, and that such removal, concealment, or transfer is about to occur, and, moreover, shall give the bond required by the next section. (Miss. Code 1906, § 563.) § 2222. — Bond required of complainant. Before the writ of sequestration shall issue in any case, the com- plainant shall enter into bond with sufficient sureties, payable to the defendant, in double the value of the prop- erty proposed to be seized, to be fixed by the clerk from affidavit, or such evidence as may satisfy him, condi- tioned to pay all damages which may accrue from the wrongful seizure of the property to be sequestered, which bond shall be filed in the cause. (Miss Code 1906, § 564.) § 2223. — What the writ to contain, etc. The writ of sequestration shall be directed to the sheriff or other proper officer commanding him to seize and take into possession the property in question and to hold the same until the further order of the court or chancellor, or until the defendant from whose possession the same was taken shall enter into bond with sufficient sureties, pay- able to the complainant in double the value of the prop- erty, to be assessed by the officer, conditioned to have the property forthcoming to abide the decree to be made by the court in the cause, or until the said defendant shall enter into bond with sufficient sureties, to be approved by the officer, payable to the complainant, in double the amount of the indebtedness claimed, conditioned for the performance of such final decree as may be entered in the cause. If a forthcoming bond be given it shall MISSISSIPPI STATUTES AND RULES 1421 be returned with the writ and filed in the cause, and in case the property shall not be delivered or forthcoming to abide the decree, shall have the force and effect of a judgment; and execution may issue thereon against all the obligors for the amount of the decree or the value of the property, according to the nature of the case. If a bond in double the debt be given, it shall be returned and filed with the papers in the cause. A bond in double the value of the property shall always be required ex- cept when its value shall greatly exceed the debt and all probable costs. (Miss. Code 1906, § 565.) § 2224. — ComplainaJit may bond the property in cer- tain ca^es. Should the defendant fail to give bond as above allowed, within five days from the date of seiz- ure, then the complainant at whose instance the prop- erty was seized may give such bond and receive the property; which bond shall be dealt with in all respects as if the defendant had given it and retained the prop- erty. (Miss. Code 1906, § 566.) §2225. — How property disposed of if not bonded. If neither of .the parties litigant shall give such bond as allowed within ten days after the seizure, the officer having possession of the property shall sell the same, in the mode prescribed by law for selling property levied upon under writs of fieri facias, if the property be liable to waste or decay, or if subject to extraordinary expense in preserving the same, and hold the proceeds subject to the future orders of the court; and if the property be not liable to waste or decay, or be not expensive to keep, it shall be held by such officer, unless the court or the chancellor shall order it to be sold, as may be done when it is thought best to do so; and if such property shall be sold, either by the officer seizing it, in the state of case provided for when he may sell it, or by order of the court or chancellor, the proceeds of such sale shall be subject to the orders of the court or chancellor, as to their safe keeping or investment, during the litigation. If the prop- erty seized be liable to immediate waste or decay, it shall be sold immediately. If the defendant do not give bond to retain the property within five days from its seizure, 1422 EQUITY PRACTICE and the complainant do not do so within five days after defendant's failure, either party may, before sale of the property, give the required bond and receive the prop- erty, or after sale may give such bond and receive the proceeds. (Miss. Code 1906, § 567.) § 2226. — Chancellor or any judge may order the writ and fix amount of bond. Writs of sequestration may also be ordered, and the amount of the bond to be given therefor by complainant may be prescribed by the chan- cellor, or by any judge authorized to grant remedial process of such nature. (Miss. Code 1906, § 568.) § 2227. How unknown persons may be made parties. When the heirs of a deceased person shall be necessary or proper parties to any suit or proceeding in chancery, and the names of all or any such heirs shall be unknown to the complainant, such of said persons whose names may be unknown, may be described as the "unknown heirs" of the deceased; and when the parties in interest are unknown they may be sued as "unknown parties in interest." (Miss. Code 1906, § 569.) § 2228. When decrees on publication only are final. Decrees against non-resident, absent, or unknown de- fendants, rendered upon proof of publication only, with- out such defendant having appeared, shall be final and conclusive from the date of rendition, unless a rehearing shall -be applied for within two years thereafter ; but if the complainant shall serve a copy of said decree on the defendant within one year and six months of its rendi- tion, a rehearing shall be applied for within six months after the date of such service. But decrees for divorce, or for the sale of property, in the administration of the estates of decedents, or on petitions of guardians, or in any other case in which it is so provided by law, are not included in the provisions of this section for rehearings. (Miss. Code 1906, § 570.) § 2229. How such rehearing may be obtained. If a defendant against whom a decree has been rendered on publication only, at any time before the expiration of the time allowed for a rehearing, shall appear and peti- tion the court therefor, and give security for the costs, MISSISSIPPI STATUTES AND EULES 1423 such defendant shall be permitted to plead, demur or answer to the bill, and to take testimony; and the cause shall be heard anew on its merits, and such decree be rendered as may be equitable, and the court may stay all proceedings in the meantime on the original decree; and if it has been executed, may, on a final hearing, decree restitution; but notice of such petition must be given to the opposite party, as in other suits; and the title to property sold to a purchaser, in good faith, in pursuance of a decree, shall not be affected by any such rehearing, (Miss. Code 1906, § 571.) §2230. Pleadings and practice — Application of rules prescribed. The rules of pleading and practice herein prescribed shall apply to all cases in matters in equity in the chancery courts, but the statutes regulating pro- ceedings in matters testamentary and of administration, in minors' business, and in cases of idiocy, lunacy, and persons of unsound mind, or any other matter of pro- ceeding in such courts, shall be the rules of practice and proceeding in such cases; and all the provisions of law regulating the decrees of said courts in matters in equity, and their operation and effect, and the manner of enforc- ing them, shall apply to all cases in said courts, unless it be otherwise provided. (Miss. Code 1906, §572.) § 2231. Mode of trial. The mode of trial in chancery courts shall be the same as heretofore practiced by such courts, except as modified by law. (Miss. Code 1906, § 573.) § 2232. Answer not required in certain cases. In pro- ceedings in matters testamentary and of administration, in minors' business, and in cases of idiocy, lunacy, and persons of unsound mind, as provided for by law, no answer shall be required to any petition or application of any sort, and such a petition or application shall not be taken as confessed because of the want of an answer; but every petition, application, or account shall be supported by the proper evidence, and may be con- tested without an answer. And all such proceedings shall be as summary as the statutes authorizing and regulating them contemplate; but when either of the 1424 EQUITY PEACTICE parties having a controversy in court as to any of said several matters shall require, and the court shall see proper, it may direct plenary proceedings by bill or peti- tion, to which there shall be an answer, on oath or affir- mation; and if the party refuse to answer to any matter alleged in the bill or petition, and proper for the court to decide upon, the party refusing may be attached, fined, and imprisoned at the discretion of the court, and the matters set forth in the bill or petition shall be taken as confessed, and a decree be made accordingly. (Miss. Code 1906, § 574.) § 2233. Answer or demurrer may be filed. Where an answer is not necessary in the matters mentioned in the j)receding section, any one desiring to contest any peti- tion or application may file a plea or an answer, or may demur to any petition, and in that way test its sufficiency. (Miss. Code 1906, § 575.) § 2234. Pleadings to be subscribed. All pleadings shall be subscribed by the party or his solicitor. (Miss. Code 1906, § 576.) § 2235. Of bills and petitions. The address of bills and petitions may be "To the chancery court of the county of ," and may commence as follows, to wit: "The complainant [or petitioner] shows to the court," and the residence of the parties must be stated, follow- ing the address, thus: "A B, a citizen of , com- plainant, V. C D and E F, citizens of , defend- ants." (Miss. Code 1906, § 577.) §2236. What bill must contain. The bill must con- tain a statement of the facts on which the complainant seeks relief, in ordinary and concise language, without repetition or needless prolixity, and conclude with a prayer for relief, without a charge of combination or confederacy by the defendants, or the insufficiency of the remedy at law, or other merely formal matter or similar useless averment, but the bill may contain spe- cial interrogatories to the defendant; but it shall not be a ground of objection to a bill that it contains all the parts of a bill according to the former practice in chan- cery pleadings. (Miss. Code 1906, § 578.) MISSISSIPPI STATUTES AND RULES 1425 §2237. Exhibits made part of bill. Exhibits filed with a bill, as part of it, shall be considered, on demurrer, as if copied in the bill. (Miss. Code 1906, § 579.) § 2238. Exhibits proved by affidavits or witnesses. Ex- hibits to bills or answers may be proved by affidavits filed with the exhibits in the clerk's office at any time before the hearing, or by witnesses at the hearing; but two days' notice of the taking of such affidavits, or of the purpose to produce witness at the hearing, shall be given to the opposite party. (Miss; Code 1906, § 580.) § 2239. Demurrers — Form. Demurrers may be in the following form, after giving the style of the case and its number, to wit: ' ' The demurrer of to the bill exhibited against him by : The said defendant demurs to said bill, and prays the judgment of the court if he shall make any further answer thereto; and he shows the fol- lowing causes of demurrer to said bill, to wit: "First "Second "Third , etc. [Setting out each cause sep- arately.] , Solicitor for said defendant. ' ' (Miss. Code 1906, § 581.) § 2240. Certificate necessary. A demurrer must not only be subscribed by the solicitor interposing it, but must have attached his certificate that he believes it ought to be sustained. (Miss. Code 1906, § 582.) § 2241. Demurrer to be set down. The party demur- ring must set the demurrer down on the docket for hear- ing at once if it be filed in term-time, and at the next term if it be filed in vacation. If the party do not see that his demurrer is set for hearing, it shall be overruled of course. (Miss. Code 1906, § 583.) §2242. Answers— Must be full— Charges of bill not denied true. The defendant shall answer fully all the allegations of the bill without being specially interro- gated. All matters of fact averred in the bill and not denied by the answer otherwise than by the general trav- 1426 EQUITY PRACTICE erse may be taken at the hearing as admitted. (Miss. Code 1906, § 584.) § 2243. Answer under oath unless waived in bill — An- swer of a corporation. The answer shall be sworn to by the defendant unless the complainant in his bill shall waive an answer under oath; in which case the answer, whether sworn to or not, shall not be evidence for the respondent. The answer of a corporation need not be under its seal, but shall be sworn to by its president, gen- eral manager, or superintendent or other general officer, unless an answer under oath shall likewise be waived. (Miss. Code 1906, § 585.) §2244. Rule requiring two witnesses modified. The rule requiring two witnesses, or one witness and cor- roborating circumstances, to overthrow an answer deny- ing the allegations of the bill, is abolished in all cases where the bill is sworn to by the complainant; and such an answer shall have only such weight and credit as in view of the interest of the party making the same, and the other circumstances of the case, it may be fairly entitled to. (Miss. Code 1906, § 586.) § 2245. Answer may be made a cross-bill. A defend- ant in a chancery suit may make his answer a cross-bill against the complainant, or his co-defendant or defend- ants, or all of them ; and may introduce any new matter therein material to his defense, and may require the same to be answered; and in the same manner may re- quire of the complainant, or any of the defendants, a discovery of any matter material to his defense, and he shall have process thereon against the defendants to such cross-bill, and the like proceedings thereon as in other bills or cross-bills; but five days' notice, in writing, to the solicitor of the complainant in the original bill shall be sufficient to require the complainant to appear to such cross-bill, and to answer the same within said time, un- less the court, or chancellor in vacation, for cause shown, extend the time for answering. (Miss. Code 1906, § 587.) § 2246. Proceedings to compel answer — Defendant at- tached. When a defendant shall fail to answer within the time required by law, the complainant, instead of MISSISSIPPI STATUTES AND EULES 1427 taking a decree pro confesso, may obtain from the chan- cellor an order for an attachment, returnable in term- time, to compel such defendant to answer; but affidavit must be first made and filed in the cause, by the com- plainant or his solicitor, that such answer is necessary for the ends of justice, as he believes. (Miss. Code 1906, § 588.) §2247. Proceedings on refusal to answer. Any de- fendant attached for the purpose of coercing an answer, who may refuse to answer, shall be committed to prison there to remain until he do answer. (Miss. Code 1906, § 589.) § 2248. Before whom answers of non-residents may be sworn to. Answers of defendants out of the state may be sworn to before any commissioner for this state, or any judge, chancellor, or any justice of the peace, notary public, or the mayor or alderman of -any city or town, or clerk of a court of record, in the state or country where such defendant may be, if such officer shall be au- thorized to administer oaths by the law of such state or country; and the certificate of such officer as to his official character shall be prima facie evidence thereof. (Miss. Code 1906, § 590.) § 2249. Replication to answer unnecessary. A repli- cation to an answer shall not be required, but the cause shall be at issue when the answer is filed. (Miss. Code 1906, § 591.) § 2250. Plea set down or replied to. When a plea shall be filed the complainant may set it down for argument upon its sufficiency in law, or he may reply to it. (Miss. Code 1906, § 592.) § 2251. Amendments. Amendments shall be allowed in the pleadings and proceedings, on liberal terms, to prevent delay and injustice. (Miss. Code 1906, § 593.) § 2252. When bill amended without leave. The com- plainant may amend his bill as of course, without apply- ing to the court, at any time before the defendant has made defense, upon complainant paying the costs of fur- nishing a copy of the amendment to such of the defend- ants as have taken out copies of the original bill, and of 1428 EQUITY PRACTICE notice of the amendment to be served on all of the de- fendants. In all other cases amendments can be made only by leave of the court, or the chancellor in vacation, and upon such terms as the court or chancellor may im- pose. (Miss. Code 1906, § 594.) § 2253. Defendant to answer amendment after notice. When a bill is amended, after answer filed, and an an- swer to the amendment is necessary, the defendant shall be allowed twenty days after notice of the amendment to answer, failing in which the matter of the amendment may be taken as confessed; and if the defendant or his solicitor be present in court when an amendment is made, other notice shall not be required. (Miss. Code 1906, § 595.) § 2254. How amendments made. Amendments of bills and answers shall be made on paper, distinct from the bill or answer, except where the amendment is of a brief character, when it may be made by an erasure or inter- lineation with ink of a different color from that in which the bill or answer is written; and the amendment shall be made in such a manner that it may be ascertained with certainty in what it consists. (Miss. Code 1906, § 596.) § 2255. Bill to make new parties filed in vacation. A complainant desiring to make new parties to his bill may file his amended bill for that purpose in the clerk's of- fice, in vacation, without leave of the court or chancellor; and thereupon the clerk shall issue process upon such bill, in like manner as if it were an original bill. (Miss. Code 1906, § 597.) § 2256. Multifariousness. If a demurrer for multi- fariousness, shall be sustained the court may authorize amendments by directing separate bills to be filed with- out new process as to the parties before the court, and by the addition of new parties, or otherwise, as may be necessary or proper for the attainment of justice; but the uniting in one bill of several distinct and uncon- nected matters of equity against the same defendants shall not be an objection to the bill. (Miss. Code 1906, § 598.) MISSISSIPPI STATUTES AND RULES 1429 §2257. No objection at hearing for misjoinder. An objection for misjoinder of parties taken at the hearing shall not be considered, but the court shall decree upon the merits without regard to such objection. (Miss. Code 1906, § 599.) § 2258. When defendant shall plead, answer, or demur, etc. When the process shall be returned executed, or proof of publication made, the defendant shall plead, answer or demur on or before the first day of the term, if the process be returnable to a regular term of the court ; and if the process require the appearance of the defend- ant on a rule-day in vacation, the defendant shall plead, answer, or demur on or before the monthly rule-day next succeeding that to which such process is returnable ; and if the defendant shall fail to plead, answer or demur at the time required, the complainant's bill may then, or at any time afterwards, before plea, answer or demurrer is filed, be taken as confessed against such defendant; a pro confesso, so taken, shall not be set aside without good cause shown. If the bill be taken for confessed against all the defendants, the complainant may set down the cause for hearing at once. (Miss. Code 1906, § 600.) § 2259. Additional time to plead, answer, or demur. Additional time to plead, or answer or demur may be allowed by the court on cause shown, and when a plea or demurrer shall be disallowed, the defendant shall answer within such reasonable time as the court may require; but an answer may be required to be filed dur- ing the same term, and should be where the plea or demurrer is merely for delay. (Miss. Code 1906, § 601.) § 2260. Exceptions to bills or answers. Exceptions to bills must be taken before answer filed, and exceptions to answers must be taken at or before the next term after the answer has been filed. When exceptions shall be taken in vacation the clerk shall refer the same to a master, who shall report thereon to the next term of the court, when the court shall hear and determine the same, if applied to; otherwise the report of the master shall be adopted. Exceptions taken in term-time shall 1430 EQUITY PRACTICE be set down on the motion docket by the party except- ing, and be disposed of, if possible, during such term. In all cases exceptions shall be taken in writing and filed in the cause. (Miss. Code 1906, § 602.) § 2261. When answer to be taken as true. If the com- plainant shall set down the cause for hearing before the expiration of the time allowed for taking testimony, the answer shall be taken as true. (Miss. Code 1906, § 603.) § 2262, Guardian ad litem. The court may appoint a guardian ad litem to any infant or defendant of un- sound mind, and allow him suitable compensation pay- able out of the estate of such party, but the appointment shall not be made except when the court shall consider it necessary for the protection of the interest of such defendant; and a decree or judgment of any court shall not be void or erroneous because of the failure to have a guardian ad litem. (Miss. Code 1906, § 604.) § 2263. Note of evidence made on hearing. On the hearing of each cause the chancellor or clerk shall make a note of the depositions and instruments of written evi- dence introduced and read by the parties respectively, showing the order of their introduction, and by which party offered; and such note of the evidence shall be filed with the papers of the cause, and shall be part of the record thereof; but the want of such note or mem- orandum shall not affect the rights of any party. (Miss. Code 1906, § 605.) § 2264. Bills of exceptions. Either party may tender a bill of exceptions in a chancery court whenever it may be necessary to make any matter a part of the record in the cause, and the chancellor shall sign the same ; and all the provisions of law applicable to obtaining bills of ex- ceptions in a circuit court shall apply to a chancery court. (Miss. Code 1906, § 606.) § 2265. Staying proceedings on bill of review. When a bill of review shall be filed, the chancellor, in term- time or in vacation, may direct the proceedings on the decree sought to be reviewed to be stayed until further order, requiring such security for the performance of the decree as he may think reasonable; but such stay MISSISSIPPI STATUTES AND EULBS 1431 of proceedings shall not be a matter of right; and on disposing of the bill of review, the court may render a decree against the parties to such security as may be proper. (Miss. Code 1906, § 607.) §2266. Injunctions; evidence of complainant's equity required. An injunction shall not be granted unless the judge or chancellor shall be satisfied of the complain- ant's equity and of the truth of the allegations of the bill, by oath or other means. (Miss. Code 1906, § 608.) § 2267. Bond required to stay proceedings at law. An injunction to stay proceedings at law shall not be issued until after the party obtaining the fiat for the same shall enter into bond, payable to the plaintiff at law, in double the amount of the debt sought to be enjoined, with two or more sufficient sureties, to be approved of by the judge or chancellor, or by the clerk issuing the injunc- tion, conditioned for paying all money and costs due or to become due to the plaintiff in the action at law, and also such costs and damages as shall be awarded against him in case the injunction shall be dissolved; which bond shall be taken by the clerk issuing the injunction, and shall be by him filed with the bill. If any clerk shall, in any case, issue an injunction without having first taken bond as required by law, he shall forfeit to the party aggrieved the sum of five hundred dollars, to be re- covered in an action, and shall, moreover, be liable on his official bond for all damages sustained thereby. (Miss. Code 1906, § 609.) § 2268. Bond when injunction is not to stay proceed- ings at law. Where the injunction shall not be for the stay of proceedings in an action at law for the recovery of money, or upon a judgment requiring the payment of money, the party applying for the injunction shall, be- fore the issuance of the same, enter into bond in like manner, in a sufficient penalty, to be fixed by the judge granting the same, conditioned for the payment of all damages and costs which may be awarded against him, or which the opposite party may suffer or sustain by reason of the suing out of said injunction, in case the same shall be dissolved. (Miss. Code 1906, § 610.) 1432 EQUITY PRACTICE §2269. Bonds in particular cases. If the injunction be to stay a sale under execution of certain designated property, real or personal, or any proceeding at law as to certain specified things, and not to restrain proceed- ings at law generally, bond may be given as in the last preceding section; but if the injunction shall be obtained on the ground of some objection to the judgment or execution, or the demand of the party enjoined to sus- tain his claim, and shall not be confined to a contest of his right to subject to his demand particular property by his proceeding, bond shall be given as prescribed in the section next before the last. (Miss. Code 1906, § 611.) § 2270, Bond not required of state, county, etc. Neither the state, nor any county, nor any municipality, nor any state officer of the state suing out an injunction in his official character, shall be required to give bond to obtain an injunction. (Miss. Code 1906, § 613, as amended by Laws 1908, Ch. 158.) §2271. Injunction dissolved, unless bill filed by first term. When an injunction or other restraining order or process shall be granted in vacation, the bill or petition on which the same was granted shall be filed forthwith in the court to which such process shall be returnable; and in default thereof the same may be docketed, on the application of the defendant thereto, and the injunction or other order or process dissolved, discharged, or set aside, unless good cause be shown to the contrary. (Miss. Code 1906, § 614.) §2272. Issuance of injunction on a release of errors. "When an injunction shall be granted to stay the execu- tion of a judgment at law, in whole or in part, the issu- ance of such injunction shall operate as a release of all errors in the judgment. (Miss. Code 1906, § 615.) § 2273. Chancellor may order restoration of personal property levied on. When an injunction shall be granted to stay the sale of personal property, levied on by virtue of an execution, the chancellor may order the property to be restored to the complainant, on his giving bond to the sheriff, with sufficient sureties, in double the value of the property, to be assessed by such sheriff, payable MISSISSIPPI STATUTES AND RULES 1433 to the plaintiff in the execution, and conditioned for the redelivery of the property to the sheriff in case the in- junction shall be dissolved; which bond shall be returned by the sheriff with the execution, and shall have the force and effect of a judgment; and in case the property shall not be redelivered to the sheriff within fifteen days after the dissolution of the injunction, the clerk of the court to which the bond was returned shall issue execution thereon for the amount of the assessed value of said prop- erty and all costs. But in such case the lien on the prop- erty created by the judgment or decree and the execu- tion and levy, shall remain in force; and the sheriff, on a writ of venditioni exponas, or other order of sale, may seize the property so levied on wherever the same may be found. (Miss. Code 1906, § 616.) § 2274. Similar proceedings in case of property seized under mortgage, etc. When an injunction shall be granted to restrain a sale . of personal property seized under a deed of trust or mortgage with power of sale, or in any case in which the sale of such property may be enjoined, the chancellor may order the property to be restored to the complainant on his giving bond, with sufficient sureties, to be approved by the chancellor or such officer as he may designate, in double the value of the property, payable to the person by whom such prop- erty is to be surrendered and conditioned for the return of the property to the person surrendering it, if the in- junction shall be dissolved; and such bond shall be filed with the bill on which the injunction was granted, and shall have the force and effect of a decree against the obligors for the amount thereof; and, if not discharged by the delivery, within fifteen days after the dissolution of the injunction, of the property to the person in whose possession it was before said order for the restoration to the complainant, execution shall be issued on such bond by the clerk for the value of said property. (Miss. Code 1906, § 617.) §2275. Motions to dissolve injunctions. Motions to dissolve injunctions may be heard by the chancellor in vacation, on five days' written notice to the opposite 1434 EQUITY PRACTICE party accompanied with a copy of the motion; and if the motion be made upon the answer of the defendant, a copy of such answer and the exhibits filed therewith, shall be served with the notice and copy of motion. In term-time, motions to dissolve on bill and answer may be heard five days after answer filed, on three days' notice to the opposite party, in writing, or by entering the motion on the docket for the like space of time. (Miss. Code 1906, § 618.) §2276. Effect of exceptions to answer on motion to dissolve. A motion to dissolve an injunction upon bill and answer shall not be entertained pending exceptions to the answer for insufficiency, unless the chancellor be of opinion that the matters of exception would not affect the motion, even if they be well taken. (Miss. Code 1906, § 619.) § 2277. Affidavits read in evidence. Either party may, on the hearing of a motion to dissolve an injunction on bill and answer, read in evidence affidavits taken by him, on two days' notice to the opposite party, of the time and place of taking such affidavits. (Miss. Code 1906, § 620.) § 2278. Effect of dissolution of injunction on the bill. When, on motion, an injunction shall be wholly dissolved, the bill of complaint shall be dismissed of course with costs, unless sufficient cause be shown against its dis- mission at the next succeeding term of the court. (Miss. Code 1906, § 621.) § 2279. Certain injunction bond to operate as a judg- ment. A bond to enjoin proceedings at law on a judg- ment for money, upon the dissolution of the injunction, in whole or in part, shall have the force and effect of a judgment against the obligors; and being certified by the clerk of the court in which it is filed to the clerk of the court in which the judgment was rendered, execu- tion may be issued against the obligors for the amount of the judgment which was enjoined. (Miss. Code 1906, §622.) § 2280. Damages on dissolution of certain injunctions. When an injunction, obtained to stay proceedings on a MISSISSIPPI STATUTES AND EULES 1435 judgment at law for money, shall be dissolved, in whole or in part, damages at the rate of five per centum shall be added to the judgment enjoined, or to so much thereof as shall be found due, including the costs; and the clerk of the chancery court shall certify such dissolution to the clerk of the court in which the judgment was rendered, who shall thereupon issue execution for the damages, as well as for the original debt and costs. Damages at the same rate shall be allowed upon the dissolution of injunctions to stay sales under deeds of trust, or mort- gages with power of sale; and such damages may be added to the debt, and collected by the sale of the prop- erty, or execution may issue from the chancery court for the same, together with the costs of suit, unless the value of the property, the sale of which was restrained, be less than the amount of the debt, in which case the damages shall be computed on the value of the property, to be ascertained and determined by the chancellor; and in all cases upon the dissolution of an injunction the dam- ages may be ascertained by the court or chancellor, or upon reference to a master, and proof, if necessary, and decree therefor be made, and execution be issued thereon. (Miss. Code 1906, § 623.) §2281. Suggestion of damages and decree therefor. Where the party claiming damages shall desire, upon the dissolution of an injunction, to have the same ascer- tained and decreed by the chancellor or the chancery court, he shall suggest in writing, on the hearing of the motion to dissolve the injunction, the nature and amount of the damages ; and the chancellor or court shall hear evidence, if necessary, and assess the damages, and decree the same to the party entitled thereto, for which execution may be issued, as in other cases, against the obligors in the bond given for the injunction. And if the chancellor, instead of hearing evidence as to said damages — which may be by witnesses examined before him in vacation or in term-time, or by deposition, ac- cording to the circumstances — shall see proper, he may make a reference to a master to take testimony and report in such matter; but nothing herein contained shall Whitehouse B. P. Vol. 11—35 1436 EQUITY PRACTICE prevent the party entitled from maintaining a suit on the injunction bond, if his damages shall not be assessed as herein provided for. (Miss. Code 1906, § 624.) §2282. Receivers — Necessity for notice of appoint- ment. A receiver shall not be appointed without the party praying the appointment have given the opposite party at least five days' notice of the time and place of making the application, and one additional day for every thirty miles of travel thereto, unless it shall appear that an immediate appointment is necessary, or good cause be shown for not giving notice. (Miss. Code 1906, § 625.) § 2283. Complainant to give bond before receiver ap- pointed without notice. Before any receiver shall be appointed without notice, the party applying for the ap- pointment shall execute bond, payable to the adverse party, in a sufficient penalty to be fixed by the court or chancellor, with sufficient sureties, conditioned to pay all damages that may be sustained by the appointment of such receiver in case the appointment be revoked; and said bond shall be filed in the cause, and damages may be recovered thereon in the suit in the same manner as damages are recoverable on an injunction-bond or the party entitled to damages may maintain an independ- ent suit on such bond therefor. (Miss. Code 1906, § 626.) § 2284. Receivers may be appointed or removed in vacation. Eeceivers may be appointed by the chancel- lor in vacation, as well as by the chancery court in term- time; and any receiver may be removed by the chancel- lor in vacation, as well as by the chancery court in term- time; but before any receiver shall be so removed in vacation, the party applying therefor must give the ad- verse party, or his solicitor, and the receiver five days' notice of the time and place of presenting such applica- tion; such application may be heard in term-time on the two days' notice. (Miss. Code 1906, § 627.) § 2285. Receivers subject to orders of court, and may apply therefor in vacation. Eeceivers shall be subject to the orders, instructions, and decrees of the court, and of the chancellor in vacation; and they, or any party in interest, may apply therefor in term-time, or to the ehan- MISSISSIPPI STATUTES AND EULES 1437 celior in vacation, or for modifications of previous orders or instructions; and obedience thereto may be enforced by attachment. (Miss. Code 1906, § 628.) §2286. Bond in lieu of receiver. On an application for the appointment of a receiver, the court or chancel- lor may, in the exercise of a sound discretion, in lieu of a receiver, order that the party against whom the re- ceiver is asked, execute bond, to be approved by the court or chancellor, payable to the party who asks for the appointment, with sufficient sureties, in a sufficient penalty, to be fixed by the court or chancellor, condi- tioned according to the nature of the case, as the court or chancellor may direct. Upon the execution, approval, and filing of such bond, the receiver shall not be ap- pointed; and any decree rendered in the cause on final hearing against the principal obligor in the bond shall be rendered against the sureties therein, within the scope of its conditions and penalty. On an application to remove a receiver who shall have been appointed without notice, the court or chancellor may exercise the same discretion, and, in lieu of retaining the receiver, may remove him upon the execution, approval, and filing of such bond; and decree may be rendered thereon as if given on the application for the appointment of a re- ceiver. (Miss. Code 1906, § 629.) §2287. Bond of receiver. Every receiver, when ap- pointed, shall, before being authorized to act as such, give bond, payable to the state, in such penalty and with such sureties as may be approved by the court or chan- cellor, conditioned that he will in all things faithfully discharge the duties of his office as receiver; which bond shall be filed with the clerk of the court, and may be put in suit, in the name of the state, for the use of the party aggrieved, from time to time, until the whole penalty shall be recovered. (Miss. Code 1906, § 630.) §2288. Receiver of money paid into court. When money shall be paid into court under its order, a receiver may be appointed to keep the same, who shall give bond and security as in other cases; but if the money shall be ordered to be paid to the clerk of such court, his official 1438 EQUITY PRACTICE bond shall cover it, and an additional bond may be re- quired if the court or chancellor shall think proper. (Miss. Code 1906, § 631.) § 2289, Receiver of estate of decedent, minor, etc. In all cases in which it may be thought to be necessary for the protection of the estate of decedents, minors, and persons of unsound mind, a receiver may be appointed, either by the court or by the chancellor in vacation, sub- ject to the foregoing provisions. (Miss. Code 1906, § 632.) § 2290. Compensation of receiver. Eeceivers shall be entitled to have such compensation for their services as the court shall allow, and shall have a lien upon the prop- erty in their hands for the payment thereof, and of their necessary expenses. The court shall make such order to compel the payment thereof as may be just and neces- sary, and may decree the payment thereof by any of the parties as a portion of the costs of the suit. (Miss. Code 1906, § 633.) § 2291. New bond required in certain cases. When it shall be alleged that the security on an injunction or re- ceiver's bonds, or any bond taken upon any proceeding in the chancery court, is insufficient, the chancellor shall have power to hear and determine the same in vacation, as well as in term-time, and may order the injunction to be dissolved, or the receiver to be suspended or re- moved, or may make such other order as may be just and equitable in the case, unless a new bond with suffi- cient sureties be given within twenty days, or such time as he shall appoint; but if done in vacation, at least five days' notice of the time and place of making the ap- plication shall be given to the opposite party. (Miss. Code 1906, § 634.) § 2292. Masters in chancery. The court may appoint two or more persons in each county to be masters of the court, who shall remain in office during the pleasure of the chancellor, and who shall receive a reasonable compensation for services rendered by them, as fixed by law, or allowed by the court, and taxed in the costs, and collected in the same manner as the fees of the clerk. MISSISSIPPI STATUTES AND EULES 1439 The clerk shall issue to such persons a certificate of their appointment. (Miss. Code 1906, § 635.) §2293. Special commissioners. The court may also appoint a special commissioner in any particular case. (Miss. Code 1906, § 636.) § 2294. Powers of masters. The masters in chancery shall have power to administer oaths; to take the exami- nation of witnesses in cases pending in any court; to ex- amine and report upon all matters referred to them; to execute all decrees directed to them to be executed; and all the powers properly belonging to masters or com- missioners in chancery according to the practice of equity courts as heretofore exercised. (Miss. Code 1906, § 637.) § 2295. Witnesses subpoenaed by master. Masters in chancery shall have power to issue subpoenas for wit- nesses to attend before them to testify in any matter re- ferred to them or generally in the cause, and the sub- poenas shall be executed in like manner as subpoenas issued by the clerk of the court ; and if any witness shall fail to appear, the master shall proceed by process of attachment to compel the witnesses to attend and give evidence. (Miss. Code 1906, § 638.) § 2296. Fees of masters for copies. Masters in chan- cery shall be authorized to charge for copies of reports, or such other papers as the parties may require, the same fees allowed the clerks for similar services, to be paid by the parties requiring the same. (Miss. Code 1906, § 639.) § 2297. Bond may be required of master or special com- missioner. The court or chancellor may in any case re- quire a master or special commissioner who is directed to make sale of any property, to give bond, in such penalty and with sufficient sureties to be approved as the court or chancellor may direct, payable to the state, and conditioned to pay according to law all money which may come into his hands as such master or special com- missioner, which bond shall be filed in said court; and for any breach of its condition execution may be issued, on order of the court, for the sum due. (Miss. Code 1906, § 640.) 1440 EQUITY PRACTICE § 2298. Account ordered in vacation or term-time. The chancellor may direct an account to be taken in any cause in vacation as well as in term-time; and when the master shall doubt as to the principles on which the ac- counts shall be taken, or as to the propriety of admitting any item of debit or credit claimed by either party, he may state in writing the points on which he shall doubt, and submit the same for decision to the chancellor in vacation. (Miss. Code 1906, § 641.) § 2299. Proceedings without notice in certain cases. In suits for the foreclosure or satisfaction of mortgages or deeds of trust, and other like cases involving a mere computation of the sum due on the face of the plead- ings and evidence, if the court shall think the com- plainant entitled to a decree the court may compute the amount due, or a reference may be made to the clerk, or a master, to make such computation, who shall pro- ceed, without notice to the parties, and make his report without delay, and a motion to confirm such report shall not be necessary ; but the report shall be confirmed and a final decree passed of course, unless cause be shown to the contrary. (Miss. Code 1906, § 642.) § 2300. Decree for balance after sale of property. Upon the confirmation of the report of sale of any prop- erty, real or personal, under a decree for sale to satisfy a mortgage, deed of trust, or other lien on such property, if there be a balance due to the complainant the court, upon motion, shall give a decree against the defendant for any such balance for which by the record of the case he may be personally liable, upon which decree execu- tion may issue. (Miss. Code 1906, § 643.) § 2301. Decree to operate as judgment of circuit court. The decree of a court of chancery shall have the force, operation and effect of a judgment at law in the circuit court. (Miss. Code 1906, § 644.) §2302. Decree to operate as a conveyance. "When a decree shall be made for a conveyance, release or acquit- tance, or other writing, and the party against whom the decree is made shall not comply therewith, then such de- cree shall be considered and taken in all courts of law MISSISSIPPI STATUTES AND RULES 1441 and equity to have the same operation and effect, and shall be as available, as if the conveyance, release, or acquittance, or other writing had been executed in con- formity to the decree; or the court may appoint a com- missioner to execute such writing, which shall have the same effect as if executed by the party. (Miss. Code 1906, § 645.) § 2303. Rights of infants saved. When a decree shall be made for the sale or conveyance of the real estate of an infant, such decree shall be binding on the infant unless he shall, within one year after attaining the age of twenty-one years, show to the court good cause to the contrary; and it shall not be necessary to insert the sav- ing in the decree, but the saving shall not extend to de- crees for the sale of the property of deceased persons, authorizing sales by guardians, or enforcing deeds of trust or mortgages. (Miss. Code 1906, § 646.) §2304. Sheriff to execute decrees; clerk to issue proc- ess. Decrees, where a master or special commissioner is not appointed to execute them, shall be executed by the sheriff ; and the clerk shall issue all writs of fieri facias, habere facias possessionem, or other final process, accord- ing to the nature of the case, directed to the sheriff, and returnable to the next term of the court or at such other time as in a given case may be prescribed. (Miss. Code 1906, § 647.) § 2305. Fieri facias or garnishment on decrees for money. Whenever the court shall render an order, judg- ment, or decree for the payment of money against any executor, administrator, or guardian, or any other party litigant therein, a compliance with such order, judgment or decree may be enforced by process of fieri facias or garnishment. (Miss. Code 1906, § 648.) § 2306. Sales under decrees. Every sale of real estate ordered by a decree of any court of chancery shall be made for cash, unless otherwise ordered by the court, and at such place and on such notice as may be directed in the decree ; and if direction be not given, at such place and on such notice as is required in case of sales of land under execution at law. The person making the sale, if 1442 EQUITY PRACTICE made on credit, shall take bond, with sufficient security, in double the amount of the purchase money, payable to the parties entitled to receive the same under the de- cree, or to such persons as the court may direct, condi- tioned for the payment of the purchase-money, with in- terest at the rate borne by the decree, to the time when the same, as directed by the decree, shall fall due; such bond shall be returned and filed in the clerk's office, and if not paid at maturity, shall have the force and effect of a judgment; and the clerk shall issue execution thereon. If any of the obligees be dead, the execution shall be in favor of the survivors and the representatives of those deceased. And in all decrees for the sale of real estate the chancellor may fix a sum to be paid on sale, and if the sale be not confirmed, the sum so paid shall be returned to the bidder. If the purchaser fail to pay the amount of his bid or to comply with the decree, the amount ad- vanced shall go to the party entitled to the purchase- money, and the land shall be resold. (Miss. Code 1906, § 649.) § 2307. Bond to prevent confirmation. The party who objects to a sale under a decree because of the inadequacy of the bid, or any person interested therein, may prevent the confirmation thereof by entering into a bond in a pen- alty equal to double the amount of the bid, with sufficient sureties, to be approved by the court or clerk, payable to the opposite party, conditioned to pay all costs of a resale, and that the property shall bring thereat an ad- vance of not less than twenty per centum upon the bid, exclusive of the cost of resale. (Miss. Code 1906, § 650.) § 2308. Court may fix terms of sale. All property may be sold on such terms and at such time and place as the court may direct. (Miss. Code 1906, § 651.) § 2309. Lien on land sold on credit. All land sold under decree of the chancery court shall be held liable and subject to a lien for the unpaid purchase-money therefor as if a mortgage had been executed by the pur- chaser and duly recorded; and said lien shall exist until actual payment of the purchase-money, or until, by order MISSISSIPPI STATUTES AND RULES 1443 of the court or chancellor, the same shall be discharged. (Miss. Code 1906, § 652.) §2310. Person making sale not to purchase. In no instance shall the person who makes the sale become, either directly or indirectly, the purchaser at a sale made by him. (Miss. Code 1906, § 653.) § 2311. Hour and adjournment of sales. A sale of real estate shall not commence before the hour of eleven o'clock on the day appointed, nor continue longer than four o'clock of the same day; but if the time be insuffi- cient to complete the sale, it may be continued from day to day until completed, by giving public notice to the company present at the conclusion of each day's sale; and such sale on the succeeding day shall commence and end as directed for the first day. (Miss. Code 1906, § 654.) § 2312. Report of sale of land. And when the sale has been completed, the person making the same shall make report thereof in writing to the court, stating the time and place of sale, the name of the purchaser, and the amount of purchase money, and shall satisfy the court that the directions prescribed in the decree of sale and the law have been followed; and thereupon the court shall proceed to make a decree confirming the sale, un- less good reason be shown to the contrary. And the court shall order the person who made the sale to make a conveyance to the purchaser of the land so sold; but if the sale be not reported to the following term, the court may compel the making of a proper report at a subsequent term, and may then confirm or set aside the same; and the person failing to make such report in proper time may be fined, as for a contempt, not exceed- ing one hundred dollars. (Miss. Code 1906, § 655.) § 2313. On death of executor, or other person author- ized, who shall sell or convey. If the executor, admin- istrator, guardian, master, or special commissioner who was ordered to make a sale or lease, shall die, resign, or be removed before doing it, such sale or lease may be made by the successor of such executor, administrator, guard- ian, master, or commissioner, or by any person appointed by the court or the chancellor in vacation to make it, and, 1444 EQUITY PRACTICE in ease of a death, resignation or removal of an executor, administrator, guardian, master, or commissioner, after making a sale, and before its report or confirmation, or before a conveyance of the title, in case of the sale of land, the court shall ascertain the facts, and, if satisfied that the sale ought to be confirmed, shall make a decree confirming it, and order a conveyance, if land was sold, to be made to the purchaser, either by the successor in the administration or guardianship of the person who made the sale, or by a master or commissioner appointed for that purpose; and such conveyance shall have the same effect to vest the title in the person to whom it is made, as if it had been made and delivered by the per- son who made the sale. (Miss. Code 1906, § 656.) § 2314. Sales or leases may be reported and confirmed in vacation. Reports of sales or leases or of partition in kind, where there is no contest, may be made in vaca- tion to the chancellor, and upon five days' notice to the parties and the purchaser or lessee of the time and place of hearing the application therefor, or upon such pub- lication for any of the interested parties who may be non-residents of this state, or who cannot be found upon diligent inquiry, as is required for non-resident or absent defendants in chancery, may be confirmed by him. (Miss. Code 1906, § 657.) § 2315. Provisions applicable to all sales made by order or decree of the court. All the provisions of this chap- ter on the subject of sales shall apply to all sales of real estate under any decree of the chancery court made in matters testamentary and of administration, minors' business, cases of idiocy, lunacy, and persons of unsound mind, of partition, and all other matters. (Miss. Code 1906, § 658.) INJUNCTION § 2316. Writs grantable by supreme and circuit judges and chancellors. The judges of the supreme and circuit courts and chancellors, in term-time and vacation, may severally order the issuance of writs of habeas corpus, mandamus, certiorari, supersedeas, and attachments, and MISSISSIPPI STATUTES AND RULES 1445 grant injunctions and all other remedial -writs, in all cases where the same may properly be granted accord- ing to right and justice, returnable to any court, whether the suits or proceedings be pending in the district of the judge or chancellor granting the same or not. The fiat of such judge or chancellor shall authorize the issuance of the process or writ returnable to the proper court or be- fore the proper officer. All such process or remedial writs, if the judge or chancellor consider it proper, may be granted, issued, and executed on Sunday. (Miss. Code 1906, § 992.) §2317. Officer to restore money on injunction of ex- ecution. When an officer shall receive under execution the whole or any part of the money for which the same was issued, and the defendant, before payment thereof to the plaintiff, obtain an injunction against the execution, the officer shall pay over to the defendant the money re- ceived, or such part thereof as may be enjoined ; and if an officer shall, when required, fail to pay over the money so received and enjoined to the person having a right to demand the same, such officer and his sureties shall be liable to the same remedies as are given by law to the plaintiff for the non-payment of money levied on execu- tion. (Miss. Code 1906, § 3994.) Costs § 2318. Costs discretionary in chancery. The chancery court shall have power to decree that either party shall pay the costs of any suit in equity, or that the same be divided as may appear equitable. (Miss. Code 1906, § 956.) Evidence § 2319. Depositions de bene esse may be taken on filing bill in chancery. After bill filed in chancery, the com- plainant, on affidavit made and filed that any of his wit- nesses are sick, aged, infirm, or about to go out of the state, may take the deposition of such witness, on giving the opposite party, if resident in the state, such reason- able notice as the circumstances will admit, of the time and place of taking the same. (Miss. Code 1906, § 1936.) 1446 EQUITY PRACTICE §2320. When depositions in chancery may be taken generally. After process returned executed, or after the day appointed for the appearance of the defendant, by publication duly published or served, the complainant in chancery may proceed to take his depositions, and the defendant therein may do the like immediately after filing his answer ; and depositions may be taken until the hearing of the cause. Four months shall be allowed for taking depositions after answer filed before the cause shall be set down for hearing by the defendant. (Miss. Code 1906, § 1937.) § 2321. Witnesses examined in open court. In all pro- ceedings in matters testamentary and of administration, in minors' business, and in cases of persons of unsound mind, and on the hearing of motions to confirm sales, in proceedings for partition of property in kind or by sale, to foreclose vendors' liens, and in all ex parte petitions and in similar cases, witnesses may be produced and examined in open court, or their depositions may be taken as in other cases in chancery courts. In all such cases where a party shall desire to have the witnesses examined in open court, before any depositions have been taken he shall file a notice to that effect, or the parties may agree in writing in any case to have all or a part of the witnesses examined in open court; and thereupon the witnesses shall be subpoenaed and examined in open court; but this shall not change the rule as to non-resi- dent witnesses, or cases in which depositions generally are authorized. In all other cases of every kind what- soever, witnesses may be examined orally as in the cir- cuit court, by consent of parties, evidenced by written agreement filed with the proceedings therein. (Miss. Code 1906, § 1941.) § 2322. Oral evidence in chancery to be reduced to writing-, when — Bills of exceptions. In all cases where witnesses are orally examined in the chancery court, the testimony, on request of either party, shall be reduced to writing and signed by the chancellor, and shall thereby become a part of the record. Either party may take bills MISSISSIPPI STATUTES AND RULES 1447 of execeptions on such examinations, as in the circuit court, with like effect. (Miss. Code 1906, § 1942.) Paetition or Pkopbety §2323. Partition by agreement and by arbitration. Partition of land held by adult joint-tenants, tenants in common, and coparceners, may be made by agreement, which shall be evidenced by a writing, signed by the parties, and containing a description of the particular part allotted to each, and recorded in the office of the clerk of the chancery court of the proper county or counties, and shall be binding and conclusive on the parties ; they may also bind themselves by written agree- ment to submit the partition to the arbitrament of one or more persons to be chosen by them, and to abide the partition made by the arbitrators and the articles of submission; and the written award shall be recorded in the office of the clerk of the chancery court of the proper county or counties, and shall be final and conclusive be- tween the parties, unless made or procured by fraud. (Miss. Code 1906, § 3520.) § 2324. Partition by decree of chancery court. Parti- tion of land held by joint-tenants, tenants in common, or coparceners, having an estate in possession or a right of possession and not in reversion or remainder, whether the joint interest be in the freehold or in a term of years not less than five, may be made by decree of the chan- cery court of that county in which the lands, or some part thereof, are situated; or if lands be held by devise or descent, the division may be ordered by the chancery court of the county in which the will was probated or letters of administration granted, although none of the lands be in that county. (Miss. Code 1906, § 3521.) §2325. Who may institute proceedings for partition. Any of the parties interested, whether infants or adults, may institute proceedings for the partition of lands or for a sale thereof by decree of court as herein provided for. If any person entitled to partition of lands be of un- sound mind, the guardian of such person may file the bill for partition; or, if made by another co-tenant, the 1448 EQUITY PEACTICE notice may be served on the guardian, if there be one, and he shall thereupon appear and answer the petition; and an infant may sue by next friend, as in other cases. (Miss. Code 1906, § 3522.) § 2326. Proceedings same as in other suits. The pro- ceedings for partition shall be instituted and conducted as other suits in chancery, except as otherwise provided, (Miss. Code 1906, § 3523.) § 2327. Court may order sale in first instance. If, upon hearing, the court be of opinion that a sale of the lands, or any part thereof, will better promote the interest of all parties than a partition in kind, or if the court be sat- isfied that an equal division cannot be made, it shall order a sale of the lands, or such part thereof as may be deemed proper, and a division of the proceeds among the co-tenants according to their respective interests; and the court may direct a master or appoint a commissioner to make the sale, and may make all proper orders to pro- tect the rights of the parties interested; and may decree the sale of a part of the land and the partition in kind of the residue. (Miss. Code 1906, § 3524.) § 2328. Controverted title and all equities disposed of. If the title of the complainants seeking- partition or sale of land for a division shall be controverted, it shall not be necessary for the court to dismiss the bill or delay the suit for an action at law to try the title, but the ques- tion of title shall be tried and determined in the suit by the chancery court, which shall have power to deter- mine all questions of title, and to remove all clouds upon the title if any, of the lands whereof partition is sought and to apportion incumbrances, if partition be made of land incumbered and it be deemed proper to do so; and the court may adjust the equities between and determine all claims of the several co-tenants, as well as the equities and claims of incumbrancers. (Miss. Code 1906, § 3525.) § 2329. Partition without commissioners — Owelty. If, at the hearing, it appear that the intervention of com- missioners is unnecessary to secure an equal partition in kind, or that the same can be effected by providing owelty, and that it would best promote the interest of the MISSISSIPPI STATUTES AND RULES 1449 parties, the court may decree the partition and fix the amount to be paid by one or several co-tenants to another or others; or this may be done on hearing the report of the commissioners. (Miss. Code 1906, § 3526.) § 2330. Decree appointing commissioners. If the de- cree be for a partition of the land, it shall state the num- ber of shares into which the land is to be divided, and shall appoint three discreet freeholders who are not related to the parties by consanguinity or affinity, to make partition according to the decree. Either party may object to any commissioner for cause, and, in case the objection be sustained, the place shall be filled by another appointment; and if any vacancy occur in the commission, the chancellor may fill such vacancy at any time by written appointment. (Miss. Code 1906, § 3527.) §2331. Oath of commissioners. Before the commis- sioners enter upon the discharge of their duties, they shall take and subscribe an oath before some competent officer, that they will honestly, faithfully and impartially make the partition decreed, and perform the duties re- quired of them to the best of their skill, knowledge and judgment. (Miss. Code 1906, § 3528.) §2332. Survey made and division into shares. The commissioners shall, if deemed advisable, cause a survey to be made of the lands to be divided, in their presence, and shall divide the same into the number of parts or shares directed in the order containing their appoint- ment; each part or share to contaia one or more lots, as the commissioners may think proper, having regard to the situation, quantity, quality and advantages of each part or share, so that they may be equal in value as nearly as may be, or according to the respective rights of the parties; and, if the bounds or title of any tract be controverted and the controverted part be valuable, the commissioners shall separate it from the part not con- troverted, and make a partition of the tract or tracts in such manner that a portion of the controverted part may be allotted to each share, as well as a portion of the part not controverted. The commissioners, or any one of them, previous to the survey, if any, shall administer an 1450 EQUITY PRACTICE oath to the surveyors and chain-bearers that they will honestly and impartially perform their respective duties. (Miss. Code 1906, § 3529.) § 2333. Allotment of shares. The commissioners, if the same have not been done by the surveyor, shall make a plat of the land to be divided ; and shall make true field notes, specifying the metes and bounds of the several shares, and of each parcel of each share which contains more than one parcel; and the several shares and parcels of shares shall be distinctly designated on the plat and numbered from one progressively; and the same number shall designate the several parcels of one share. And they shall allot the several shares in the following man- ner: The commissioners shall publicly number as many tickets as there are shares marked on the plat, and put the tickets into a hat or box, and the names of the per- sons entitled to shares shall be written on separate tickets and put into another hat or box, when a person ap- pointed for that purpose by the commissioners shall pro- ceed to draw a ticket of those containing the names, and then a ticket of the numbers, and so proceed until the whole are drawn; and the number which shall be drawn to the name of any co-tenant shall be his separate share in the land so divided. The commissioners shall make certificate of the balloting, signed by them, specifying the time, place and manner thereof, and the allotment of shares. (Miss. Code 1906, § 3530.) § 2334. Assignment of shares and owelty. Instead of making an allotment of shares by ballot, the commis- sioners may assign shares to the parties entitled, if so directed by the court or chancellor, or if they find it de- sirable; and in any case, if any equal partition in kind cannot be made otherwise, or so advantageously, the commissioners may assess the amount of money to be paid by one or more of the co-tenants to another or others, so as to equalize their respective shares. (Miss. Code 1906, § 3531.) § 2335. Report of commissioners. The commissioners shall make to the court, at the first term held after they have acted, or as the court shall direct, a full report, in MISSISSIPPI STATUTES AND RULES 1451 writing, of their proceedings, which, on exceptions filed at any time before its confirmation, for good cause shown may be set aside by the court, and other commissioners appointed, or the same commissioners may be directed to make a new partition; or the partition may be modified by the court in any particular, and be confirmed as thus modified. (Miss. Code 1906, § 3532.) § 2336. Allowance to commissioners. The commission- ers shall each be allowed at the rate of two dollars and fifty cents per day while employed in the business. The expenses shall be taxed in the bill of costs. (Miss. Code 1906, § 3533.) § 2337. Owelty a lien. In all cases where owelty is al- lowed, it shall be a lien upon the share of the party charged therewith, which shall be superior to all other liens made or suffered by such party. (Miss. Code 1906, § 3534.) §2338. Land sold when not capable of division. If, after a decree for partition and the appointment of com- missioners, it shall appear from the report of the com- missioners, or on exceptions to their report, that a just and equal division of the land cannot be made, or that a sale will better promote the interest of all the co-ten- ants, the court shall order a sale of the land, or such part thereof as may be deemed proper, and a division of the proceeds among those interested, as provided for. (Miss. Code 1906, § 3535.) § 2339. Final decree and decree of confirmation. The final decree of the chancery court in partition proceedings shall ascertain and settle the rights of all parties; and it, and the decree confirming the partition, shall constitute an instrument of evidence in all questions as to the title of the lands which may be the subject of the decree, in all courts, and shall be conclusive as to the rights of all parties to the suit, and subject to appeals and bills of review, as in other suits, and to a repartition as provided. (Miss. Code 1906, § 3536.) § 2340. Decrees to be recorded. Decrees making parti- tion shall be recorded in the record-book of conveyances of the county or district in which any of the lands are Whitehouse E. P. Vol. 11—36 1452 EQUITY PRACTICE situated, within three months after the partition is con- firmed; and a partition the decree making which is not so deposited with the clerk for record, shall not be valid as against purchasers without notice, or against creditors. (Miss. Code 1906, § 3537.) § 2341, Party evicted to have partition of residue. If any person who has received a share of land partitioned, shall be evicted therefrom, or from any portion thereof, by a paramount title existing at the time of the partition, and there be a residue of land left not subject to such paramount title, the party so evicted shall be entitled to a new partition of the residue. (Miss, Code 1906, § 3538,) § 2342. Lien created by party binding on his share. Any mortgage or other lien executed by any joint-tenant, tenant in common, or coparcener, shall remain in force on the share of such co-tenant after partition, and on his share only; but this shall not prevent the holder of such mortgage or other lien from asserting claim to owelty awarded to such co-tenant. (Miss, Code 1906, § 3539.) § 2343, Paramount rights not affected. Nothing herein contained shall be construed so as to injure, prejudice, defeat or destroy the estate, right, or title of any person claiming a tract of land, or any part thereof, or any piece or lot of land by title under any other person, or title para- mount to the title of the joint-tenants, tenants in common, or coparceners, among whom partition may have been made. (Miss. Code 1906, § 3540.) § 2344. Certain absent parties to have new partition. If any joint-tenant, tenant in common, or coparcener should be absent from or reside out of this state at the time partition is made, he shall be entitled to a new par- tition at any time within one year after the first partition, if the premises have not been sold for division, if he shall present his petition for that purpose to the chancery court which decreed partition, and shall show thereby that the first partition was unfair, and shall make an affidavit that neither he nor any agent of his received any notice what- ever of the pendency of the bill for partition, and shall present the affidavit of at least one credible person that the first partition was unfair and unjust; and if the court MISSISSIPPI STATUTES AND RULES 1453 be satisfied with tlie showing made, may proceed to award a new partition; but one who has made improvements on the share first assigned him, shall not be evicted from such share; nor shall the improvements be estimated by the second commissioners in fixing its value, but it shall be valued as though the improvements had not been made; and if the premises have been sold, and purchased by any of the joint-tenants, tenants in common, or co- parceners, the non-resident or absent joint-tenant, tenant in common, or coparcener shall be entitled to set aside such sale at any time within one year thereafter, if it can be shown to have been unfairly made, and fraudulent as to him. In proceedings under this section, all persons interested shall be summoned to appear and contest the application. (Miss. Code 1906, § 3541.) § 2345. Solicitor's fee allowed in certain cases. In all cases of the partition or sale of property for division of proceeds, the court may allow a reasonable solicitor 's fee to the solicitor or the complainant, to be taxed as a com- mon charge on all the interests, and to be paid out of the proceeds in case of a sale, and to be a lien on the several parts in case of partition. (Miss. Code 1906, § 3542.) § 2346. Partition of personalty. Any person entitled to a division of personal property may apply therefor to the chancery court of the proper county, subject to the foregoing provisions in reference to land, as far as appli- cable, considering the difference in the kind of property; and a sale or a division may be ordered in such cases, as provided for in case of land which is incapable of equal division, or which it may be to the interest of the parties to sell, and the court shall have power to make all such orders as may be necessary to protect the rights of parties. And any sale or partition ordered in such cases shall be made and reported as in case of the sale or partition of land ; and decrees making partition shall vest title accord- ing to their terms. In such cases the court or chancellor may make all orders, and cause to be issued all process necessary to secure the rights of parties; and writs of sequestration may be issued as provided for in any other 1454 EQUITY PRACTICE cases in which they are authorized. (Miss. Code 1906, § 3543.) § 2347. Personal property by justice of the peace, A tenant in common of personal property not exceeding in value two hundred dollars, may apply by petition, in writ- ing, to a justice of the peace of the district in which the property or some part thereof may be, for a partition of it; and thereupon all the co-tenants shall be summoned and the rights of parties ascertained, and an order made for a division of the property; or, if the property be in- capable of division in kind according to the several in- terests, or if a sale and division of the proceeds will better promote the interests of parties, the justice of the peace shall order a sale and a division of its proceeds, and may designate a person to make the sale, and may issue exe- cution specially framed to that end, and make all orders necessary or proper to protect the rights of parties and to effect a sale and division of the proceeds. (Miss. Code 1906, § 3544.) §2348. — By whom partition made, if ordered. If partition be ordered, it shall be made by the justice of the peace, who shall value the property and divide it equally into as many shares as there are separate owners, and allot the several shares to the different owners after the manner prescribed for the proceeding of commission- ers to make partition of real estate, as nearly as may be ; and a statement of such allotment shall be made by the justice on his docket, so as to show what property was allotted to each party; and, the allotment shall vest the title of the property in the parties to whom it is allotted. (Miss. Code 1906, § 3645.) § 2349. — Appeal to the circuit court. A person ag- grieved may appeal from the judgment of the justice of the peace in refusing or ordering a sale or partition, or in making partition, or from any final action of the justice of the peace, as in any other civil case decided by a justice of , the peace; and, on appeal, the circuit court may give such judgment as may be right. (Miss. Code 1906, § 3546.) §2350. —Writ to seize property, and proceedings. MISSISSIPPI STATUTES AND RULES 1455 If the petitioner make affidavit at the commencement of his suit, or afterwards, of his right as a tenant in com- mon, and that there is danger of the removal of the prop- erty, so as to defeat or endanger his right, the justice of the peace shall issue a writ for the seizure of the property; and if the person having it in possession will not give a bond with sufficient sureties, approved by the officer exe- cuting the writ, conditioned to have the property forth- coming to abide the final order which shall be made in the case, payable to the petitioner, in a sum sufficient to covers his interest in the property, it shall be delivered to petitioner on his giving a bond, payable to the person from whom it was taken, with sufficient sureties, approved as above provided, in a penalty equal to the value of the interest of such person, conditioned to have the property before the justice of the peace to abide his final order in the case ; but if neither party give the required bond, the property shall remain in the hands of the officer, unless it be perishable or expensive to keep, in which case it shall be sold, as such property seized under attachment is sold, and the proceeds of the sale shall be disposed of according to the rights of the parties. (Miss. Code 1906, § 3547.) §2351. — Sale — How made when ordered. A sale of property ordered by a justice of the peace to be made for a division of the proceeds shall be made for cash and on such notice and at such place as sales of like property are made under execution issued by a justice of the peace, and the money arising from the sale shall be paid to the justice of the peace for division among the parties. (Miss. Code 1906, § 3548.) CHAPTER XXXIX NEW HAMPSHIRE STATUTES * § 2352. Suits in equity, etc., to be tried by court, when and how. Suits in equity, petitions for divorce, nullity of marriage, alimony, custody of children, allowance to wife from husband's property, new trials, partition, re- demption and foreclosure of mortgages, writs of manda- mus and quo warranto, and other similar proceedings, may be heard upon oral testimony or depositions, or both, at the trial term ; or when both parties consent, or service having been made and a notice of the time and place of the hearing having been given, when both parties appear, such suits may be heard by any justice of the court in vacation as of the trial term; but nothing herein con- tained shall be construed as limiting the power of the court to have issues of fact framed and tried by a jury, according to the rules in equity, or the course of such proceedings at common law. (N. H. Pub. St. 1900, c. 204, sec. 9.) § 2353. Decision to be in writing^, etc. The court or justice trying causes under the two preceding sections shall, if either party request it, give his decision in writ- ing, stating the facts found and his rulings of law, which shall be filed and recorded. (N. H. Pub. St. 1900, c. 204, sec. 10.) § 2354. Equity powers. The supreme court shall have the powers of a court of equity in the following cases: [list omitted'] , and in all other cases cognizable in a court of equity. The court may hear and determine such cases * Public Statutes, 1900, as amended, corrected to January 1, 1915. 1456 NEW HAMPSHIRE STATUTES AND RULES 1457 according to tlie course of equity, and may grant writs of injunction whenever the same are necessary to prevent fraud or injustice. (N. H. Pub. Stat. 1900, c. 205, sec. 1.) § 2355. When disputed title to realty may be settled. Any person in possession of real property claiming an estate of freehold, or an unexpired term of not less than ten years, may maintain a bill in equity against a person who makes a claim adverse to his estate, — whether such adverse claim is based upon a record, a written instru- ment, or otherwise, — to determine the question of title as between the parties, and the court's decree thereon shall be conclusive. (N. H. Pub. Stat. 1900, c. 205, sec. 2.) § 2356. Discovery when goods withheld. When goods or chattels are unlawfully withheld from the owner, pro- ceedings in equity may be had for a discovery, for a restoration of the property, and for such other relief as the nature of the case and justice may require. (N. H. Pub. St. 1900, c. 205, sec. 6.) § 2357. Creditor's bill— When lies. When any estate, property, interest, right, or credit, legal or equitable, of a debtor against whom execution has been issued and re- turned unsatisfied is alleged to be so holden that it can- not be reached, or to have been conveyed by the debtor in fraud of his creditors, or to be held by others for the debtor's use, proceedings in equity may be had for a dis- covery, and for relief and the court shall make proper decrees and orders, and issue proper process to compel a discovery, to prevent a transfer of the property, and to make application of so much thereof as in justice ought to be applied in satisfaction of the debt. (N. H. Pub. Stat. 1900, c. 205, sec. 7.) § 2358. — Not in case of property exempt from at- tachment, etc. The provisions of the preceding section shall not apply to property exempt from attachment, nor to trust funds, where the trust has been created by or the fund has proceeded from some person other than the debtor, and such application may not be made consist- ently with the trust, nor to cases where the amount due is not greater than the sum to which the jurisdiction of 1458 EQUITY PRACTICE justices of the peace is limited. (N. H. Pub. Stat. 1900, c. 205, sec. 8.) § 2359. Lien — How created — If personality attached. When a bill is filed under the provisions of section 7, the plaintiff may cause a certified copy thereof and of the order issued thereon, to be filed in the office of the clerk of the town in which any defendant resides; and the names of the parties, the time of filing, and the court in which the bill is pending shall be entered by the clerk upon the index of attachments, as in case of an attachment of bulky articles; and such filing and the service of th^ bill upon such defendant shall constitute a lien, as against him and others having after-acquired rights, upon the personal es- tate, property, interest, right or credit to which the bill relates, or which may be discovered by the proceedings, for the performance of any decree or order relative thereto, in favor of the plaintiff against the defendant. (N. H. Pub. Stat. 1900, c. 205, sec. 9, as amended by Laws 1913, c. 109.) § 2360. Lien — If realty attached. In the case of real estate, the lien shall be created by filing the certified copy in the office of the register of deeds of the county in which the real estate is situate. (N. H. Pub. Stat. 1900, c. 205, sec. 10, as amended by Laws 1913, c. 109.) § 2361. Right to attachment or trustee process. The plaintiff in a bill in equity, or the libelant in a libel for di- vorce, shall have a writ of attachment or a trustee process as of right, for the attachment of the goods, estate, money, rights, or credits of the defendant or libelee to secure the performance of any decree or order that may be made in the suit. (N. H. Pub. Stat. 1900, c. 205, sec. 11.) § 2362. — Form. In such writ, the following may be substituted for a declaration: "Said attachment is to be made to secure the performance of any decree or order that may be made in the bill in equity (or libel for divorce) of which a copy is hereto annexed," and a copy of the bill or libel may be annexed to the writ. (N. H. Pub. Stat. 1900, c. 205, see. 12.) § 2363. — Execution of writ. The officer to whom the writ is directed may attach property thereon as upon NEW HAMPSHIRE STATUTES AND RULES 1459 writs in civil actions, and such, attachment shall consti- tute a lien upon the property attached to secure the per- formance of any decree or order that may be made in the suit. (N. H. Pub. Stat. 1900, c. 205, sec. 13.) § 2364. — Filing of writ. The writ shall be filed in the clerk's office with the papers in the suit, and a memoran- dum of it shall be entered upon the docket. (N. H. Pub. Stat. 1900, c. 205, gee. 14.) § 2365. Power to make necessary orders. If the decree or order requires the performance of any other thing than the payment of money, the court may make necessary orders and issue necessary process to secure or compel the performance of the decree or order by means of the property attached or held by trustee process. (N. H. Pub. Stat. 1900, c. 205, sec. 15.) § 2366. Power to discharge or modify liens. Any lien acquired by proceedings in equity may be released, dis- charged, or modified by the court or any justice thereof, in such manner and upon such terms as justice may require. (N. H. Pub. Stat. 1900, c. 205, sec. 16.) § 2367. Counties in which cause may be heard. Causes in equity pending in one county, and motions and appli- cations therein, may, upon reasonable notice to the parties or their attorneys, be heard and determined in any other county. (N. H. Pub. Stat. 1900, c. 205, sec. 17.) §2368. Appointment of commissioners, masters, re- ceivers, etc. — Powers of single justice. The appointment of commissioners and receivers, the reference of questions to masters, granting writs of injunction to stay proceed- ings or waste, making interlocutory decrees or orders, and other incidental proceedings, may be had and done by one justice, in term time or vacation, in any county; but injunctions so issued shall continue, unless sooner dis- solved, only until the end of the next term for the county in which the proceedings are pending. The court may al- low a reasonable compensation to masters for their serv- ices and expenses, including stenographer's fees in cases where the employment of a stenographer is authorized by the court, which shall be paid by the county. (N. H. Pub. 1460 EQUITY PRACTICE Stat. 1900, c. 205, sec. 18, as amended Laws 1909, c. 67 and Laws 1911, c. 33.) § 2369. Transmission of decrees, orders, etc., to clerk. Decrees and orders, made by one justice, or by the court, when the clerk for the county in which the suit is pending is not in attendance, shall be certified and forthwith trans- mitted, with the papers connected therewith, to the clerk, and be by him entered of record. (N. H. Pub. Stat. 1900, c. 205, sec. 19.) § 2370. Powers over interlocutory decrees and orders. Interlocutory decrees and orders, and other proceedings had and made by one justice, may be reversed, annulled, or modified by the court, at any law term, as justice may require. (N. H. Pub. Stat. 1900, c. 205, sec. 20.) Tbansfeb of Questions of Law to Supreme Coukt §2371. When may be transferred. Questions of law arising in the trial of any case in the superior court may be transferred to the supreme court for final decision, upon a case or statement of facts reserved by the trial justice. And any party aggrieved by the ruling, direc- tion, or judgment of the superior court, seasonably object- ing, may allege exceptions thereto in writing, which, being conformable to the truth of the case, shall be al- lowed by the trial justice and be entered in the supreme court for determination. Reserved cases and bills of ex- ception may be entered in the supreme court at any time. (N. H. Pub. Stat. Supp. 1901-1913, c. 78, sec. 5.) § 2372. Jury trials. The court may direct proper is- sues to be framed for the trial by a jury of any question of fact arising in a suit in equity or other proceeding pending in the court. (N. H. Pub. Stat. 1900, c. 227, sec. 21.) EXILES OF COURT * Law Eules Expressly Applicable to Chancery Cases § 2373. Docket entries. The clerk shall enter upon the docket at the first term the names of all the parties to * These rules were adopted by the Supreme Court of New Hampshire in 1902, and are found in Vol. 71, N. H. Reports. Corrected to January 1, 1915. NEW HAMPSHIRE STATUTES AND RULES 1461 each suit, including the plaintiffs, the defendants, and the trustees. (N. H. Law Rule 4.) §2374. Use of depositions, iio deposition which has been taken after the Tuesday next preceding the Tuesday on which the term commences shall be used in the trial of any cause before a jury. Provided, however, that this rule will not be construed to apply to witnesses who may become sick after the time limited as aforesaid, nor to persons who may be bound to sea; nor to depositions taken by consent of the parties, if such consent be stated by the magistrate in the caption, and the written consent be annexed thereto. (N. H. Law Eule 21.) § 2375. Notice of taking depositions. No notice to the adverse party of the taking of depositions shall be deemed reasonable unless served three days exclusive of the day of service and the day of the caption, before the day on which they are to be taken; and when the adverse party shall live more than ten miles from the place of caption, one day more shall be allowed for every additional twenty miles. Provided, however, that twenty days' notice shall be deemed reasonable in all cases, unless further time be ordered by the court or one of the justices. (N. H. Law Eule 22.) §2376. — Persons entitled. When a suit is in the name of a nominal party, and the name of the real party is put upon the docket at the time the action is entered, notice of the taking of depositions shall be given to the real party, in all cases where the statute requires notice to be given to the party; and in all other cases it shall be given to the real party, or his attorney or agent. (N. H. Law Eule 23.) § 2377. Depositions — How taken. The testimony of witnesses contained in depositions to be used either in the courts of common law or chancery, is to be taken only upon answers to written interrogatories proposed at the time by the counsel, and administered by the magistrate. The interrogatories, as well as the answers thereto, must appear in the deposition, and the answer must follow each interrogatory as it is administered. 1462 EQUITY PRACTICE The interrogatories shall be written by the counsel or the magistrate, and shall be read to the witness by the magistrate, who shall write the answers thereto without interference by either party. The magistrate, however, may appoint such disinterested person as he may see fit, as a clerk to assist him in reducing the deposition to writing. All interrogatories proposed shall be put by the magistrate, without deciding upon their competency, but noting any objections to the same or to the answers thereto; and if complaint be made of undue interference by parties or counsel with any witness in the taking of any deposition, the same having been reduced to writ- ing, the magistrate shall certify as to the truth and cor- rectness, or the incorrectness, of such complaint in the caption. Upon motion to the court, the depositions which either party has taken are to be filed with the clerk; and after such motion is granted, no depositions are to be used except those which are thus filed. (N. H. Law Eule 24.) §2378. — Commission, when may be issued. The clerk may issue a commission to take depositions in the vacation, which commission shall be directed to any jus- tice of the peace, notary public, or other officer legally empowered to take depositions or affidavits in the state or county where the deposition is to be taken. (N. H. Law Rule 25.) § 2379. — Certificate when taken abroad. In all civil cases where oaths are administered, or depositions are taken abroad to be used in this state, by a person act- ing as a justice of the peace, notary public, or commis- sioner, and the oath is certified upon any paper to be used in evidence in this state, the fact that the person has signed his name in either of the said capacities, and has affixed his seal, where one is required, will be re- ceived as prima facie evidence that he is legally em- powered so to act. (N. H. Law Rule 26.) § 2380. — Exceptions — Waiver. If any party shall, on the first day of the term, file his depositions and captions with the clerk, notifying the adverse party thereof in writing, all exceptions to the captions will be considered NEW HAMPSHIRE STATUTES AND RULES 1463 as waived, ujiless tlie adverse party shall, within twenty- four hours after he is thus notified, file with the clerk a notice in writing, stating that he intends to object to the captions, and particularly specifying the objection he in- tends to make. (N. H. Law Rule 27.) § 2381. Continuance — Absence of counsel. When coun- sel who have been relied on to conduct a trial fail to attend the court on account of sickness, or for any other reason deemed sufficient by the court, such absence will be a cause for a continuance, if new counsel cannot be seasonably and properly instructed; in which case the party moving for a continuance must pay the adverse party the costs of the travel and attendance of himself and his witnesses for that term, and shall tax no costs for that term if he should recover, and shall comply with such other terms as the court may order. (N. H. Law Rule 30.) § 2382. — Absence of witness. Upon applications for continuances on account of the absence of a material witness who resides out of the state, and whom the party deems it necessary to have upon the stand, the contin- uance, if granted, shall be upon the terms that the party making the application indemnify the otlier for the de- lay, by paying the costs of the term and taxing none during the same time, and upon such further terms as the court may impose. (N. H. Law Eule 32.) § 2383. — Compliance with order for notice. Actions continued for notice will be dismissed at the second term, unless the order of notice has been complied with, or good cause is shown by affidavit for the neglect. (N. H. Law Eule 33.) § 2384. Notice — Publication. In all cases of notice by publication where the time is fixable by the court, the order shall be for publication in some paper or papers named by the court in general or special directions given to the clerk, three successive weeks at intervals of not less than seven days, the last publication to be not less than thirty days before the return day. (N. H. Law Rule 35.) § 2385. Disqualification of attorney testifying in cause. 1464 EQUITY PRACTICE No attorney or counsellor shall be permitted to take any part in the conduct of a cause before a jury, after he shall have testified for his client in the same cause. (N. H. Law Eule 36.) § 2386. Attorneys — ^When not to be compelled to tes- tify. No attorney or counsellor shall be compelled to testify in any cause in which he is retained, unless he shall have been duly summoned to attend as a witness in the cause previous to the commencement of the term. (N. H. Law Eule 37.) §2387. — Number permitted to examine witnesses. But one counsel will be permitted to examine the witness, unless by leave of the court. A witness cannot be re-examined by the party calling him after his cross-examination, unless by leave of the court, except so far as may be necessary to explain his answers on his cross-examination, and except as to new matter elicited by the cross-examination, touching which he has not been examined in chief. After a witness has been dismissed from the stand, he cannot be recalled without permission of the court, upon an application for that purpose and good cause shown. (N. H. Law Eule 44.) § 2388. Order of proof. In all trials, whether by the jury or the court, the plaintiff shall put in his whole case before resting, and shall not thereafter, except by per- mission of the court upon good cause shown, be permitted to put in any evidence except such as may be strictly rebutting; and the defendant shall before resting put in his whole defense, and shall not thereafter be permitted to put in any evidence except such as may be in reply to the rebutting evidence put in by the plaintiff. The closing arguments of the counsel of the respective parties shall be limited to one hour on each side, tmless before the commencement of the arguments for good cause shown, the court shall allow further time, which shall in all cases be fixed and definite. (N. H. Law Eule 45.) § 2389. Motion for new trial — Time for motion. No motion for a new trial shall be sustained on account of any misdirection to the jury, or of any mistake of the NEW HAMPSHIRE STATUTES AND RULES 1465 court in ruling any question that may arise upon the trial of the cause, unless the grounds of the motion shall have been handed to the judge who tried the cause, in writing, within twenty-four hours after the verdict may be returned. (N. H. Law Rule 46.) § 2390. Instructions — Requests. All requests for spe- cial instructions must be handed to the judge before the arguments begin. All exceptions to the charge of the judge shall be considered as waived, unless taken and reduced to writing before the jury retire. (N. H. Law Rule 47.) § 2391. Transfer of questions of law — Filing^ and trans- mission of papers. Whenever any question of law shall be raised and is transferred, it shall be the duty of the counsel to file all papers relating to the question with the clerk at the same term; and the clerk shall forth- with make copies of the papers which raise the question, cause the same to be printed, and transmit by mail one copy to each justice of the superior court, and the num- ber of copies provided for by the rule of the supreme court to the clerk thereof. (N. U. Law Rule 48.) § 2392. — Advancing expense of copies — Taxation as costs. "When a question of law is transferred to the supreme court, the party who moves for a new trial on account of any alleged error in the ruling of the court shall, in the first instance, advance the expense of the copies, which sum is to be taxed in. his bill of costs if he shall recover. When a question is transferred by virtue of an agreement signed by the parties, such expense shall be advanced by the plaintiff. Unless the party whose duty it is shall pay the clerk the expense of the copies as above provided, within twenty days after the filing of the case with the clerk, the exceptions shall be waived ; and when it is an agreed case, it shall be dismissed. (N. H. Law Rule 49.) §2393. Questions arising before auditors — Separate reports. If any question of law shall arise upon a hear- ing before an auditor, the auditor may, at the request of either party, state in a separate report such facts appear- ing in the evidence as raise the question; and if the court 1466 EQUITY PRACTICE shall be of opinion that the auditor has mistaken the law, the case may be recommitted to him for correction of the report, or for a further hearing, as justice may re- quire. (N. H. Law Eule 50.) § 2394. Reference — Notice of hearing — Commission. When causes pending in this court are referred by agree- ment of parties, it shall be the duty of the referee, having been duly sworn, to give fourteen days' notice of a hear- ing, which notice shall be served upon the parties or their attorneys, and to make report to the term of court next subsequent to his appointment; and the commission shall contain directions in accordance with this rule. Such commission shall be charged to the plaintiff, to be taxed by him in his bill of costs if he shall prevail. (N.,H. Law Eule 51.) § 2395. — Taking out rule — Report. Whenever an auditor or referee shall be appointed in any action, the rule will be taken out and proceeded upon within such time, during the term or in vacation, as that the report shall be made at the next succeeding term. And if no report shall be made at the commencement of that term, the rule may upon the motion of either party be dis- charged, and the action then stand for trial. (N. H. Law Ilule 52.) §2396. — Duty of clerk as to furnishing copies of rule. It shall be the duty of the clerk, within twenty days after each term, unless the court shall otherwise order, to furnish every auditor, or referee, or the chair- man of the board appointed during the term, with the rule. (N. H. Law Eule 53.) § 2397. — Proceedings on failure to produce accounts, produce books or answer. In actions referred to audi- tors or referees, if either party neglects or refuses to appear before the auditor or referee, or to render an account, or produce such books and papers and answer on oath such interrogatories as may be pertinent and material, the auditor or referee shall certify the same to the court and the court shall thereupon render judgment against such party as upon nonsuit or default, and if necessary cause the damages to be assessed by the jury. NEW HAMPSHIRE STATUTES AND RULES 1467 but for good cause shown the court may recommit the cause to the referee or auditor, or allow the same to be tried by the jury. (N. H. Law Eule 54.) § 2398. — Practice. In actions sent to referees by the agreement of parties, the hearing' will proceed accord- ing to the rules of law and according to the practice in court; and in granting continuances, and in all the pro- ceedings in the hearing, the referee shall be governed by the rules of court. For the purpose of the hearing before him, he may allow amendments to the writ or any of the pleadings, in the same manner and to the same ex- tent as if the actions were tried in court ; and when amend- ments are so allowed he shall report such facts with reference thereto as will enable the court to revise the discretion exercised by him if either party so elect. He shall certify the costs of each party before him, and the amount of his own fees and expenses, and report any facts by him deemed material to aid the court in the determination of the costs. (N. H. Law Eule 55.) Chanceky Etjles § 2399. Name of county to appear in proceedings. The name of a county in which a suit in equity may be brought shall be written in the upper margin of each proceeding; and the words "in said county" shall refer to the county in the margin, unless the contrary appears. (N. H. Chancery Eule 80.) §2400. Bills — Form. Every bill in the introductory part shall contain the names, places of abode, and prop- er description of all the parties, plaintiffs and defend- ants, by and against whom the bill is brought. The form in substance shall be as follows: Superior Court -ss. Term, 19- A. B., of, etc., complains against C. D., of, etc., and E. F., of, etc., and says, etc. The bill may conclude "and thereupon the plaintiff prays," setting forth the special relief to which he sup- poses himself entitled, "and for such other relief as may Whltehouse E. P. Vol. II — 37 1468 EQUITY PRACTICE be just." If an injunction or other special order pend- ing the suit is required, it may be specially asked for. (N. H. Chancery Eule 81.) § 2401. Conciseness — Writings not to be set forth at length. Every bill and answer shall be expressed as con- cisely as may be; and no deed, will, agreement, or other writing shall be set forth at length or annexed to any bill or answer, but so much of either as is material, and no more, shall be inserted. (N. H. Chancery Eule 82.) § 2402. Answers — Form. Answers shall be entitled with the county in the margin, the style of the court, the title of the case (that is, the name of the first plaintiff,' and "& a." if more than one, and the name of the first defendant, and "& a." if more than one), and "The answer of ' ' the party making it, — in substance as follows : Superior Court ss. Term, 19 . A. B. & a. V. C. D. & a. The answer of C. D. (N. H. Chancery Eule 83.) § 2403. — Failure to deny as an admission. All facts well alleged in the bill, and not denied or explained in the answer, will be held to be admitted. (N. H. Chancery Eule 84.) § 2404. — Necessity for verification. Answers, unless required by the bill to be under oath, need not be sworn to; and they will then be regarded only as pleadings, and no exception for insufficiency can be taken thereto. (N. H. Chancery Eule 85.) § 2405. Demurrer or plea. A demurrer or plea shall be entitled like an answer. A demurrer shall be in sub- stance : ' ' The defendant says the plaintiff is not entitled upon said bill to the relief (or discovery) prayed for, because," etc. But the defendant, instead of filing a formal demurrer or plea, may insist on any special mat- ter in his answer, and have the same benefit therefrom as if he had pleaded the same or demurred to the bill. (N. H. Chancery Eule 86.) § 2406. Bills — When may be issued— Subpoenas. Bills in equity may be filed in term, or in the clerk's office in NEW HAMPSHIKE STATUTES AND RULES 1469 vacation. If so filed in term, a subpoena or order of notice may issue, returnable at the same term, if the court shall so order, and such further proceedings may be had at the same term as the court may direct. If filed in va- cation, a subpoena or order of notice may be issued by the clerk as of course, returnable at the next term. (N. H. Chancery Rule 87.) §2407. Subpoenas — Service. Subpoenas shall be served by the same officers and in the same manner as original writs of summons are by law to be served, and the complainant shall also cause an attested copy of the bill to be delivered to the defendant, or left at his usual place of abode, at the time of the service of the subpoena, or within fifteen days afterward. (N. H. Chancery Eule 88.) § 2408. — Service as notice of suit. Due service of an attested copy of the bill and order of notice, shown by affidavit of the person giving or leaving the same, or by return of an officer, shall be deemed sufficient notice of the suit. (N. H. Chancery Rule 89.) § 2409. Attested copies of bills, answers and deposi- tions. In all cases where attested copies of bills, answers, or depositions in chancery are required, copies of such bills, answers, or depositions, attested as true copies by the solicitor for the party, shall be deemed and taken to be sufficient. (N. H. Chancery Eule 90.) § 2410. Rule to answer. Every such subpoena or order of notice issued by the clerk shall contain an order on the defendant to file with the clerk, within two months after the service thereof, his plea, answer, or demurrer, and deliver a copy to the plaintiff's solicitor; otherwise the bill will be taken as confessed; and when the bill is filed less than two months before the nest term, the answer shall be filed on the return day; but the court, for good cause shown, may extend the time for filing the answer as they may deem just and reasonable. (N. H. Chancery Eule 91.) § 2411. Failure to enter appearance — Decree pro con- fesso. If the defendant, having been duly notified, shall neglect to enter his appearance at the return term, or 1470 EQUITY PRACTICE shall neglect to deliver to the plaintiff's solicitor his plea, answer, or demurrer within the time prescribed in the rule to answer, the bill shall be taken pro confesso, and a decree entered accordingly. (N. H. Chancery Eule 92.) §2412. Proceedings on answer. When an answer is delivered to the plaintiff's solicitor, the plaintiff shall within one month amend his bill by leave of the court or one of the justices, and deliver his amendment to the defendant 's solicitor, or deliver to such solicitor his repli- cation, or his exceptions allowed by the court, if not sub- mitted to by the defendant; otherwise the case shall be heard as of course on the bill and answer. (N. H. Chan- cery Rule 93.) § 2413. Amendments. Amendments may be made to the bill, answer, or pleadings, in proper cases, upon the order of a judge in vacation, and upon such terms as he may impose, the amendments being subject, however, to the order of the court. No allowance of any amend- ment will be of any effect unless a copy of the amend- ment shall be delivered to the solicitor of the adverse party, within one month of the delivery of the answer to the plaintiff's solicitor, or unless further time be allowed by the court or one of the justices. (N. H. Chan- cery Rule 94.) §2414. Answer or plea to amended bill — Time for notice to take depositions. The defendant's answer or plea to an amended bill must be filed and a copy de- livered to the plaintiff's solicitor within three weeks after the amendment or amended bill is delivered to the defendant's solicitor, or the bill may be taken as con- fessed. If he does not amend, the plaintiff's replication must be filed and notice to take depositions must be de- livered to the defendant's solicitor within one week. (N. H. Chancery Rule 95.) ' § 2415. Exceptions. Exceptions to an answer may be allowed by a justice, a copy thereof and a notice of the time and place at which the same will be heard before such justice being seasonably given to the defendant's solicitor. They will be deemed waived unless allowed, filed, and a copy delivered to the defendant's solicitor NEW HAMPSHIRE STATUTES AND RULES 1471 within one month, from the delivery of the answer, or unless further time be allowed by the justice. (N. H. Chancery Eule 96.) § 2416. — Answer after exceptions. If the defendant, on notice of exceptions to his answer, shall file and deliver to the plaintiff's solicitor before the day appointed for the hearing thereon a sufficient answer, the same shall be received without costs. If the exceptions are sustained, the defendant shall file and deliver to the plaintiff's solicitor a full and complete answer thereto within one month, and pay such costs as the justice allowing such exceptions shall order, or the bill shall be taken pro con- fesso; but if the plaintiff so elects he may move for process of contempt to compel an answer. (N. H. Chan- cery Eule 97.) §2417. Replications — Form, A replication shall be entitled as an answer, and shall be in substance: "The plaintiff says his bill is true, and the defendant 's answer, as set forth, is not true, and this he is ready to prove." Such replication shall be served upon the defendant or his solicitor within one month after the delivery of the answer, or within one week after the time for an amended answer; otherwise, the case will be heard on the bill and answer. (N. H. Chancery Eule 98.) § 2418. Term of hearing — Continuance. Bills in equity will ordinarily be in order for a hearing at the first term after entry, and they will not be continued except for good cause shown. (N. H. Chancery Eule 99.) § 2419. Copies to be furnished. If a cause is to be heard on bill and answer, notice shall be given thereof, with a copy of the bill and answer if not before furnished, to the court without delay, or the bill may be dismissed. (N. H. Chancery Eule 100.) § 2420. — Hearing on bill and demurrer. If the cause is to be heard on the bill and demurrer, copies thereof, if not already furnished, shall be given to the court with- out delay or the bill may be dismissed. (N. H. Chancery Eule 101.) § 2421. Abatements. No proceeding in equity shall be abated if the person who shall become interested shall, 1472 EQUITY PRACTICE on his petition briefly setting forth his relation to the canse, be admitted to prosecute or defend as a party there- to ; nor if such person, upon petition of the adverse party, briefly stating his relation to the cause, shall be by order of the court duly notified to appear therein. If the per- son so notified shall neglect to appear, the bill shall be taken as against him as confessed. (N. H. Chancery Eule 102.) § 2422. Security for costs. When a complainant lives out of the state, sufiicient bond for the payment of the costs which may be recovered by the adverse party shall be filed with the clerk at the time of the filing of the bill, or within fifteen days afterward, and if not filed within that time no further proceedings shall be had upon the bill, which shall be dismissed with costs at the next term, unless the court, upon cause shown, permit the bond to be then filed. (N. H. Chancery Rule 103.) § 2423. Interlocutory orders. Any justice of the court, as well in vacation as in term, may make and direct orders for the appointment of guardians ad litem, and all inter- locutory orders, rules, and proceedings preparatory to the hearing of a cause upon its merits, upon petition and due notice to the adverse party. And motions for dis- solving any injunctions which may have been issued by him, or for the extension or rescission of any order which may have been made by Mm, may be heard and acted upon by any justice, upon due notice to the adverse party under his direction. (N. H. Chancery Eule 104.) § 2424. Attachments for contempt — Issuance in vaca- tion — Arrest. Attachments for contempts may be issued by a justice in vacation, upon evidence of the disobedience of any injunction or order granted by him or any other justice, or by the court in term, or for neglect of wit- nesses to give evidence upon subpoena, and commitment may be made thereon. And parties may be arrested upon the order of a justice and required to give bonds for ap- pearance, and to abide the order of the court, in any case where he shall deem it necessary for the purposes of jus- tice, or for carrying into full effect the chancery juris- diction. (N. H. Chancery Rule 105.) NEW PIAMPSIIIEE STATUTES AND RULES 1473 § 2425. Injunctions — Issuance in vacation. Injunc- tions ordered by a justice in vacation expire witli the close of ttie next term, and will not be continued unless upon motion. (N. H. Chancery Eule 106.) § 2426. — Continuance in force without order. Injunc- tions ordered by the court pending the suit, and tem- porary injunctions which have been ordered to be con- tinued by the court, will continue in force without further motion or order until the final determination of the cause, unless they are modified or dissolved by the court upon special application. (N. H. Chancery Eule 107.) § 2427. — Granting by single justice in vacation. Be- fore injunctions are granted by a single justice in vaca- tion it must appear from the certificate of the clerk that a bill in chancery, libel for divorce, petition for new trial, writ of error, or other process at law or in equity has been filed; but when the object of the injunction would be defeated by the delay necessary to file a bill or other process and procure a certificate, an injunction may issue, to expire unless a bill, petition, or other proceeding in law or equity be commenced and filed within a certain time to be specified by the justice. Whenever an injunc- tion is issued without notice to or appearance by, the ad- verse party, except in divorce cases, the party at whose request the same is issued shall ordinarily be required, and in any case may be required, to give bond with sufficient sureties, to the satisfaction of the court or jus- tice issuing the same, to pay and satisfy all such dam- ages as may be occasioned to the adverse party by reason of the injunction, in case the proceeding in which the injunction is issued shall be determined against himself. (N. H. Chancery Eule 108.) § 2428. — May be granted by order instead of writ. Injunctions may be ordered by the court, or by any justice thereof, by an order, and such order shall have the same force and effect in all respects as if a writ of injunction were issued. (N. H. Chancery Eule 109.) § 2429. Receivers. Eeceivers appointed by the court shall give bond for the faithful discharge of their duties, 1474 EQUITY PEACTICE payable to the clerk of the court. The bond shall be filed in the clerk 's office, there to await the order of the court. (N. H. Chancery Eule 110.) § 2430. — Inventories — Accounts. In all cases of as- signments and receiverships of corporations ordered by the court, assignees and receivers shall file with the clerk of court inventories within thirty days after their appointment, and shall also file with the clerk accounts under oath of all their transactions, receipts, and ex- penses (commissions excepted), on the first day of Jan- uary and July, (N. H. Chancery Eule 111.) CHAPTER XL NEW JERSEY STATUTES * Chanoeey I. The Coxjbt When Open §2431. Terms — When and where held — Continuance. The court of chancery shall hold, annually, at Trenton, three stated terms, commencing on the first Tuesday of February, the third Tuesday of May, and the third Tues- day of October, respectively, and such special terms, at the same or any other place as the chancellor shall from time to time appoint; if the court shall not sit or be opened at any of the said terms, whether stated or special, the writs and process then returnable, and the bills, suits, pleadings, and proceedings depending before the said^ court shall be continued, of course, till the next term, and so from term to term, until the court shall sit.f (1 N. J. Comp. St., p. 410, § 1.) § 2432. Court always open for certain purposes. The court of chancery shall be considered as always open for the granting and return of writs, and for making all orders and decrees, interlocutory or final.f (1 N. J. Comp. St., p. 411, § 2.) II. Subpoena and Pkocess for Appeaeance, and How Seeved § 2433. Necessity for filing bill— Endorsement of writ or process^Requisites — ^Notice. No subpoena or other * Compiled Statutes, 1910. Corrected to January 1, 1915. t See also § 2585, post, p. 1535, modifying §§ 2431 and 2432. 1475 1476 EQUITY PRACTICE process for appearance shall issue out of the court of chancery until after the bill shall have been filed; every writ or process shall be issued by a solicitor, or by the clerk, at the instance of the party, and before the service or execution thereof shall be subscribed or endorsed with the name of the said solicitor or party, and also signed and sealed by the clerk, and shall be in the form pre- scribed by the rules of the court of chancery; the names of all defendants in any suit, who are resident in the same county, shall be inserted in one subpoena or process ; to every subpoena ad respondendum, a notice shall be added that the defendant is not required to appear at Trenton in person, at the return day, but if he intend to make a defense, it is only necessary for him to answer, plead or demur to the bill within the time required by law. (1 N. J. Comp. St., p. 411, § 3.) § 2434. Foreclosure of mortgages — How third persons made parties. Where a bill shall be filed on any mort- gage, or instrument in the nature thereof, for a fore- closure or sale of the premises contained in the same, or any part thereof, and the complainant shall deem it ex- pedient to make any person a defendant therein, other than the mortgagor, his heirs, executors, administrators, or assigns, such complainant shall, with the subpoena to be issued against such other defendant, cause to be issued a ticket, in writing, shortly making known for what cause he is subpoenaed to answer; which ticket shall be, by the officer serving the subpoena, left with the said de- fendant at the~time of such service, and no charge be made therefor. (1 N. J. Comp. St., p. 411, § 4.) § 2435. Service of process — Return. Every subpoena or process for appearance shall be served by the sheriff or other officer authorized to serve writs of summons and other common law processes, on the person to whom it is directed, by giving to him personally a copy or leaving a copy thereof at his dwelling-house or usual place of abode, at least five days prior to its return, and it shall be the duty of the slieriff or other officer, as the case may require, of any county in this state, to whom any sub- NEW JERSEY STATUTES AND RULES 1477 poena, order, attachment, process of sequestration, writ of execution or other process issuing out of the court of chancery, shall be directed or delivered, to serve or ex- ecute the same, and to make return thereof at the time and place therein mentioned, which shall be filed by the clerk. (1 N. J. Comp. St., p. 411, § 5, as amended by Laws 1913, c. 339.) § 2436. — On corporation. In any suit or proceeding heretofore or hereafter begun in the court of chancery against a corporation of this state, process of subpoena or other writ, notice, orders and papers of any nature whatsoever in such suit or proceedings served upon the president, vice president, a director or the designated agent of the corporation or other officer thereof, shall be good and effective service upon the corporation. (1 N. J. Comp. St., p. 412, § 5a.) §2437. Written appearance — Effect. A written ap- pearance in any suit in chancery, or a written acknowl- edgment of the service of any subpoena to answer, signed by a defendant or his solicitor, shall have the same force and effect as if such defendant had been regularly served with a subpoena to answer, by the sheriff or any other proper officer; provided, such signature of the party be verified by affidavit. (1 N. J. Comp. St., p. 412, § 6.) § 2438. Ne exeat — Requisites to issuance — Indorse- ments. No writ of ne exeat shall be granted, unless sat- isfactory proof be made that the defendant designs quickly to depart from this state; and if granted, the chancellor, a vice chancellor, or an injunction master, shall direct to be indorsed thereon the sum in which the party shall give bond, with satisfactory surety or sureties. (1 N. J. Comp. St., p. 412, § 7.) §2439. Bond for costs — Cash deposit. If the com- plainant reside out of this state, he shall, before the issu- ing of a process to appear, cause a bond to be executed by at least one sufficient person, being a freeholder and resi- dent within this state, to the defendant in the penal sum of one hundred and fifty dollars, conditioned to prosecute the suit with effect and to pay costs to the defendant, if he shall be entitled thereto, and have the same filed with 1478 EQUITY PRACTICE the clerk, or, in default thereof, the complainant's solic- itor, who shall file the said bill and issue process thereon, shall be responsible to pay the defendant such costs as he may be entitled to by the order of the court, to an amount not exceeding the penalty of said bond; and whether the said bill and process be signed by the complainant or his solicitor, the said suit may be stayed until such bond be filed, and if it be not filed by the time appointed by the court, the bill shall be dismissed with costs; provided, in lieu of such bond the complainant may deposit with the clerk the sum of one hundred and fifty dollars in money. (1 N. J. Comp. St., p. 413, § 8.) III. Desckiption of Paeties Whose Names Aee Unknown § 2440. Description of married woman whose Christian name is unknown. In any suit hereafter to be commenced in the court of chancery wherein it shall be thought neces- sary or proper to make any married woman a party, and it shall appear by the affidavit of the complainant, or his solicitor, annexed to the bill of complaint, and filed there- with, that, notwithstanding due inquiry has been made therefor, the Christian name of such married woman can- not be ascertained, it shall be lawful and sufficient to designate any such married woman by the name of her husband, with "Mrs." prefixed thereto; it shall be lawful for any married woman so designated in any suit, to appear and plead, answer or demur, either by the name by which she shall have been made a party, or by her own Christian name, but if by the latter, she shall also state the name by which she was made a party. (1 N. J. Comp. St., p. 413, § 9.) § 2441. Persons believed to be dead and their heirs, etc., as parties. In all actions hereafter commenced in the court of chancery, whenever it shall appear by the allega- tions of the bill or petition, duly verified by affidavit thereto annexed, that any person mentioned in said bill or petition, or his heirs, devisees or personal representa- tives, are proper parties defendant to said bill of com- plaint or said petition; and that the complainant or petitioner, after diligent and careful inquiry therefor. NEW JBESEY STATUTES AND RULES 1479 made as in case of absent defendants, has been unable to ascertain whether such person is still alive, or if he is known or believed to be dead, has been unable to ascer- tain the names and residences of his heirs, devisees or personal representatives, or such of them as may be proper parties defendant as aforesaid, such action may proceed against such person by name, and his heirs, dev- isees and personal representatives, as in the case of ab- sent defendants whose names are known ; and such notice as is required by law to be published against absent de- fendants in default of personal service, addressed to such person by name, and to * ' his heirs, devisees and personal representatives," and containing such further statements and giving such further time as the chancellor may by his order direct, shall be first published and mailed in such manner as the chancellor may, by his order in said action, direct; and in case such person, or his heirs, devisees or personal representatives, shall not appear, plead, answer or demur within the time limited in said notice, or further allowed by the chancellor, if he shall think proper, on proof to the satisfaction of the chancellor of mailing and publication of said notice as directed, such action may proceed in all respects as if such person, or his heirs, devisees or personal representatives had been duly named and described and served with process of subpoena in said action, and had failed to plead, answer or demur within the time thereto allowed by law. (1 N. J. Comp. St., p. 413, §10.) §2442. — Binding effect of proceedings — Proof — Costs — Relief. All such defendants, and all persons fall- ing within the description of ' ' heirs, devisees or personal representatives" of the defendant supposed to be dead as aforesaid, shall thereupon be bound by all orders and de- crees in said cause as if they had been duly named and de- scribed and served with process in this state, and proofs may be made, costs allowed, security ordered and pro- ceedings for restitution or other relief from said decrees and orders had in like manner as the same are now al- lowed by law in the case of absent defendants. (1 N. J. Comp. St., p. 414, § 11.) 1480 EQUITY PEACTICE IV. Pkoceedings against Non-Residents § 2443. Persons deemed — Notice. In case of a bill filed against any defendant against whom a subpoena or other process to appear shall issue, and such defendant shall not cause his appearance to be entered in such suit, as according to the practice of said court the same ought to be entered, in case such process has been duly served, and it shall be made to appear, by affidavit or otherwise, to the satisfaction of the chancellor, that such defendant is out of the state, or cannot, upon due inquiry, be found therein, or that he conceals himself within this state, or that none of the officers or directors of a defendant cor- poration of this state is resident in this state or can be found therein to be served with process, every such de- fendant shall be deemed and taken to be an absent defend- ant, and thereupon the chancellor may, by order, direct such absent defendant to appear and plead, answer or demur to the complainant's bill or petition, at a certain day therein to be named, not less than one nor more than three months from the date of such order. (1 N. J. Comp. St.,p. 414, §12.) § 2444. — How notice served — Solicitor's fee. Such notice of said order as the chancellor shall by rule direct shall, within twenty days thereafter, or within such shorter time as the chancellor shall direct, be served personally on such absent defendant, by a delivery of a copy thereof to him, or be published four times in one or more of the public newspapers printed in this state and designated in such order during four consecutive calen- dar weeks, at least once in each week; and in case of such publication, a copy of such notice shall be mailed to such defendant, prepaid, directed to him at the post-office nearest his residence, or the post-office at which he usu- ally receives his letters, unless such residence or post- office be unknown and cannot be ascertained upon making such inquiries as the chancellor may, by rule, pre- scribe in such case, which said notice shall also be pub- lished or served in any other manner that the chancellor may see proper in the same to direct; the solicitor shall NEW JERSEY STATUTES AND EULES 1481 be entitled to one dollar and fifty cents for every notice served or mailed as aforesaid. (1 N. J. Comp. St., p. 415, § 13, as amended by Laws 1912, c. 155.) § 2445. Non-appearance — Decree pro confesso. In case such absent defendant shall not appear, plead, answer or demur within the time so limited, or within some further time to be allowed by the chancellor, if he shall think proper, and on proof of personal service, or the publica- tion and the mailing of said notice as aforesaid, and of performance of the direction contained in said order, to the satisfaction of the chancellor, the chancellor may or- der and direct that the complainant's bill or petition be taken as confessed against such absent defendant so fail- ing to plead, answer or demur, or the chancellor may, at his discretion, order the complainant to produce docu- ments, depositions, exhibits or other evidence to substan- tiate and prove the allegations in the bill or petition, or the chancellor may examine the complainant on oath or affirmation, touching or concerning such allegations, and thereupon such decree shall be made in either case as the chancellor shall think equitable and just. (1 N. J. Comp. St., p. 415, § 14.) § 2446. Binding effect of decree — Proof of non-service of notice — Security. Any defendant upon whom such notice is served as herein directed shall be bound by the decree in such case as if he were served with process within the state, but in such cases where the name shall be published and sent by mail, if such defendant shall make oath that he did not receive the same, and that it did not in any way come to his knowledge, within ten days after the time within which it was directed to be served; or in cases where actual service is sworn to, if it shall be made to appear by satisfactory proof that such service was not made, the chancellor may, in his discre- tion, before executing such decree, proceed to take se- curity in the manner provided in this act. (1 N. J. Comp. St., p. 416, § 15.) § 2447. Ex parte affidavits — Before whom taken. Any ex parte affidavits required in any suit in chancery may be taken out of this state before any master in chancery 1482 EQUITY PRACTICE of this state or any officer authorized to administer oaths in the state or territory of the United States where the same is taken; and in any foreign state or country before any notary public or any minister, secretary of legation, charge d'affaires, consul or vice consul of the United States there being. (1 N. J. Comp. St., p. 416, § 16.) § 2448. When bond required of complainant — Seques- tration. When a decree shall be made against an absent defendant, the chancellor, before issuing process to com- pel the performance of such decree against such absent defendant, may, if he deems it equitable so to do, require the complainant to give bond, with such security and in such sum as he may direct, to abide such decree or order touching the restitution of the estate and effects of such absent defendant, or the repayment of any sum of money which the complainant may receive by virtue of such decree, but which shall afterwards be made to appear, as hereinafter provided, not to have been due and owing to him; and in case no such security shall be given, no process or execution shall issue to compel the perform- ance of the decree so made against such absent defendant, but the estate and effects of such absent defendant may, by order of the chancellor, be- sequestered, and remain under the direction of the chancellor, to abide such order as he shall think just and proper respecting the same. (1 N. J. Comp. St., p. 416, § 17.) § 2449. Petition and appearance after decree — ^Bill for accounting — Confirmation of decree. In case any such absent defendant, against whom any decree shall be made as aforesaid, his heirs, devisees, executors, administrators or assigns, shall, within six months after notice in writing be given to him or them of such decree, or within three years after such decree in case no notice as aforesaid shall be given, petition the chancellor touching the matter of such decree, and pay or secure to be paid, such costs as the chancellor shall think reasonable to order and direct, then and in such case the person so petitioning may be permitted to appear and answer the complainant's bill, and thereupon such proceedings shall be had as if such absent defendant had appeared in due season and no de- NEW JERSEY STATUTES AND RULES 1483 cree had been made; or such, absent defendant may, within the times aforesaid, file his bill of complaint in the said court, for an account and settlement of the amount which was due to the complainant at the time of the decree, and to compel the said complainant to refund and repay what he may have wrongfully recovered and received, together with the interest from the time of the receipt thereof, with costs of suit, the former decree against such absent defendant notwithstanding; but in case no petition shall be presented, or bill filed, as before provided for, within six months from the time notice as aforesaid shall be given, due proof thereof being made, or within three years from the date of the decree, the decree shall be deemed and adjudged to be confirmed; which confirmation shall have relation to the time of making said decree ; and the decree shall be executed and performed as in cases where the defendant had duly appeared. (1 N. J. Comp. St., p. 416, § 18.) V. Pleadings and Peoceedings aftee Eetxjen of Subpoena §2450. Prayer for answer without oath — Interroga- tories — Effect of failure to answer. The complainant may, in any bill in chancery, pray that the defendant answer without oath, in which case the answer need not be sworn to, and the allegations and statements therein, whether responsive or not, shall not be evidence against the com- plainant, except on a motion to grant or dissolve an in- junction, on which motion the statements and denials in an answer duly sworn to, shall have the same effect as heretofore; and when an answer without oath is so prayed, the complainant may annex to the bill interrogatories, founded on statements in the bill, and the same or any part thereof, may be addressed to all or any of the defend- ants, and each defendant to whom such interrogatories are addressed, shall answer the same, under oath or affirma- tion, fully, directly and responsively, confining the answer to the interrogatory proposed ; and such answers shall be annexed to the answer to the bill, be filed therewith, and be liable to be excepted to, as a part of the answer; and Whitehouse E. P. Vol. II — 38 1484 EQUITY PRACTICE so far as responsive to such interrogatories, sliall liave the same effect as the responsive allegations in answers re- quired to be sworn to ; and any defendant omitting to an- swer any such interrogatory directly and fully may be compelled so to do, or the allegations in the bill upon which the interrogatory is founded, shall be taken as ad- mitted to be true, and a decree made thereon accordingly. (1 N. J. Comp. St., p. 417, § 19.) §2451. Plea — Demurrer — Answer — Time for filing. When a subpoena to answer shall have been returned duly served by the proper ofiScer, or the appearance of the de- fendant shall have been signed, or service of a subpoena acknowledged, as hereinbefore mentioned, the defendant shall file his plea or demurrer to the bill of complaint within twenty days from the return day of the subpoena, unless further time be granted and the cause, within ten days thereafter, shall be noticed and set down for argu- ment for the next term, by the party demurring or plead- ing; the answer to any bill in chancery shall be filed within twenty days from the return day of the subpoena, in case no plea or demurrer be filed, unless further time be granted. (1 N. J. Comp. St., p. 417, § 20, as amended by Laws 1913, c. 339.) § 2452. Extension on overruling frivolous demurrer. When a demurrer shall have been filed which shall not be actually argued, or which, upon argument, appears to the chancellor to be' frivolous or intended for the purpose of delay, the same shall be overruled as frivolous, and the chancellor shall not grant in such suit any order extend- ing the time to answer herein limited, unless, upon full examination of the circumstances of the case, it shall be made to appear to him that evident injustice would be done without such extension, and then he shall grant such extension only as may be absolutely necessary, with proper diligence, to prepare such answer. (1 N. J. Comp. St., p. 418, §21.) §2453. Affidavit that plea or demurrer is not inter- posed for delay — Certificate of counsel. Every plea or demurrer in chancery shall have annexed thereto the affi- davit of the defendant or defendants filing the same, or NEW JERSEY STATUTES AND RULES 1485 his or their agent in the suit, that the same is not inter- posed for delay, but in good faith; and also the certifi- cate of counsel that he has perused the complainant's bill, and that such plea or demurrer is well founded in point of law; and every plea or demurrer filed without such affidavit and certificate may be treated as a nullity. (IN. J. CompSt.,p. 418, §22.) § 2454. Decree pro confesso for failure to plead, demur or answer — Examination of complainant — Hearing testi- mony — Stay of proceedings — Opening decree. If the de- fendant shall not file his plea, demurrer or answer within the time hereby limited, or that granted by the court, the bill of complaint shall be taken in term time or vacation, as confessed against such defendant, and such decree made thereon as by the court shall be deemed equitable and just; or the chancellor may, at his discretion, order the complainant to produce documents and witnesses to substantiate and prove the allegations in the bill of com- plaint ; or the chancellor may examine the complainant on oath or affirmation, to ascertain the truth of the allega- tions in the said bill, and such decree shall be made in either case as the chancellor shall think equitable and just; provided, to prevent fraud or mistake, the chan- cellor may, at any time, upon notice and sufficient cause shown, grant a rule staying proceedings and to open such decree. (1 N. J. Comp. St., p. 418, § 23.) § 2455. Reply to plea — Demurrer to be disposed of be- fore proceeding on answer — Answer on overruling de- murrer — Costs on demurrer. When the complainant con- ceives the plea to be good, though not true, he may reply to and take issue upon it, and proceed as in case of an answer; if the defendant file a demurrer and answer, the complainant shall not proceed on the answer until the de- murrer has been argued or disposed of; if the plea or demurrer be overruled, no other plea or demurrer shall be thereafter received; but in such case the defendant shall file his answer to the complainant's bill in twenty days after such overruling, and if he fail to do so, the said bill shall be taken as confessed; if the plea or demurrer be allowed, the complainant shall pay costs, and if overruled, 1486 EQUITY PRACTICE the defendant shall pay them. (1 N. J. Comp. St., p. 419, §24.) § 2456. Exceptions or replication to be filed — Setting cause for hearing — Dismissal — Issues. The complainant shall file exceptions or a replication, or set down a cause for hearing upon bill and answer within twenty days after the expiration of the time limited or granted for filing the answer, or on failure thereof his bill shall be dismissed with costs, unless good cause be shown to the contrary; on filing a replication the cause shall be deemed to be at issue. (1 N. J. Comp. St., p. 419, § 25, as amended by Laws 1913, c. 339.) § 2457. Notice for decision on exceptions — Hearing — Reference — Costs. "When exceptions shall be filed to an answer, either party may move on notice for a decision upon them, and the chancellor may hear the motion or refer it to a master to report within such time as the chancellor may fix ; the complainant, if his exceptions be overruled, shall pay costs to the defendant.; and the de- fendant, if his answer shall be adjudged insufficient, shall pay the costs to the complainant. (1 N. J. Comp. St., p. 420, § 26.) §2458. Insufficiency of answer — Further answers — Costs where held insufficient — Decree pro confesso. When an answer shall be adjudged to be insufficient, the defend- ant shall file a second or further answer within thirty days after such adjudication; if such second or further answer shall be adjudged to be insufficient, the defendant shall pay double costs, and may, by leave of the court, and not otherwise, file a third or further answer within twenty days after such adjudication; if such third or further answer shall be adjudged to be insufficient, the defendant shall pay treble costs; and further time to answer shall not be allowed; and in such case or in case of default in the filing of the second or third answer within the time lim- ited, the said bill shall be taken as confessed, and such proceedings be had thereon as if the first or original an- swer had not been filed in due time. (1 N. J. Comp. St., p. 420, § 27.) §2459. Cross-bills — Answers. If a cross-bill be ex- NEW JERSEY STATUTES AND RULES 1487 Mbited, tlie defendant to the first bill shall answer thereto before the defendant to the cross-bill shall be compelled to answer such cross-bill. (1 N. J. Comp. St., p. 420, § 28.) §2460. New parties — Supplemental bill unnecessary when — Petition. Where after the filing of the bill, any person shall acquire such an interest in the subject-matter of the suit as would have made him a proper or necessary party, if such interest had been possessed by him at the time of the commencement of the suit, it shall not be nec- essary to file a supplemental bill to make such person a party, but the same may be done by petition filed in the cause, and which petition, verified by oath, shall state the interest of such person, and the manner in which the same was acquired; and a copy of the petition and notice of the application shall be served on the complainant or his solicitor, and notice of the application shall be served on such of the defendants as the chancellor shall direct, if made before the time for answering has expired, and, if after that time, on each defendant who has answered or appeared in the cause ; and the chancellor may thereupon, if it appear that such person is entitled to be made a party to the cause, and has acquired his interest from some party to the same, order that he be made a party thereto ; but such person shall be bound by all orders and proceed- ings in the cause against the party whose interest he has acquired, and the cause shall not be delayed by the admis- sion of such party, except for such time as it may seem to the chancellor to be necessary to take the evidence re- garding such claim. (1 N. J. Comp. St., p. 421, § 29.) §2461. — When may be made parties. In all cases in which it is provided in this act that a person may be made a party by petition after the commencement of the suit, such person may be made a party either before or after an interlocutory or final decree therein, but such decree shall not be opened or set aside thereby, and in all cases where the person so made- a party does not dispute the claim of the complainant, or any part of it, the com- plainant, or any defendant whose prior right is not dis- puted, shall not be delayed by the admission of such party; but his claim shall be fully heard and investigated in dis- 1488 EQUITY PRACTICE posing of the residue of the subject-matter of the suit or of the proceedings thereof. (1 N. J. Comp. St., p. 422, § 30.) VI. Evidence; Inteeeogatobies, Examination of Witnesses § 2462. When answer to be taken eis true — Necessity for evidence. If any complainant proceed to a hearing on bill and answer only, the answer shall be taken to be true in all points; and no evidence shall be received unless it be matter of record, to which the answer relates, and is prov- able by the same record. (1 N. J. Comp. St., p. 422, § 31.) § 2463. Interrogatories to complainant — Answers — Failure to answer. The defendant, after he shall have filed his answer, may exhibit interrogatories to the com- plainant, which shall be answered by him on oath or af- firmation ; and such answer shall be evidence in the cause in the same manner and to the same effect as the defend- ant 's answer to the complainant 's bill is evidence ; and if the complainant shall not answer such interrogatories by the time appointed by the court, he shall be in contempt, and his bill may be dismissed, with costs. (1 N. J. Comp. St., p. 422, § 32.) § 2464. Testimony of witnesses — How taken — Fees. All examinations of witnesses hereafter to be taken and made use of at the hearing of any cause in the court of chancery, except such as shall be taken before the chancellor, a vice chancellor, or an advisory master shall be taken and re- duced to writing by one of the examiners of said court, or before a commissioner or commissioners appointed by the chancellor according to the course of the court, who are hereby authorized to administer the proper oath or afiSr- mation to the witnesses examined by them, or any of them ; and unless otherwise specially ordered by the court all examinations of witnesses before examiners shall be taken on ten days' notice of the time and place of tak- ing such examination, given by the party or his solicitor to the opposite party or his solicitor; and either of the parties in the cause shall, in their proper persons, or by their solicitor or counsel, have liberty to be present and examine and cross-examine such witnesses; all which ex- NEW JERSEY STATUTES AND RULES 1489 amination of witnesses so taken shall be filed with the clerk of the court, to be made use of and read in evidence upon the hearing of the cause, saving all legal exceptions ; witnesses shall be allowed the same fees as by law are al- lowed to witnesses in the supreme court. (1 N. J. Comp. St., p. 423, §33.) § 2465. Printing of pleadings and evidence — Costs. It shall be lawful for the chancellor in such cases as he may judge proper, to order the pleadings and evidence, or any part thereof, to be printed, and to order the expense of such printing to be taxed as part of the costs in the cause. (IN. J. Comp. St., p. 424, §34.) VII. Setting Down the Cause and the Hearing § 2466. When to be set down for hearing — Dismissal — Costs. Every cause, unless referred to a vice chancellor or a master^ shall be set down for hearing at the next stated term after the filing of the replication; or, on failure thereof, the complainant's bill shall be dismissed, with costs, unless the court on just cause and reasonable terms, allow further time for the said hearing; and if the said hearing be not had within the time so limited or allowed, then the court shall dismiss the said bill, with costs; pro- vided, there be fifteen days between the filing of the repli- cation and the next stated term ; and if there be not, then the hearing shall be had at the subsequent stated term or at a special term ; a cause referred to a vice chancellor or a master shall be heard at such time as he shall on notice appoint. (1 N. J. Comp. St., p. 424, § 35.) § 2467. Hearings in absence of party — Decree. If either party shall not attend at the time appointed for the hear- ing of the cause, the pleadings and proofs shall be read on the part of the party attending, and the court thereupon shall decree as the case may require. (1 N. J. Comp. St., p. 424, §36.) § 2468. Dismissal after hearing commenced— Showing of good cause — Failure of party to prosecute cause. When a hearing has been commenced before a vice chancellor or an advisory master and the taking of proofs upon such hearing has been begun by complainant upon his bill, 1490 EQUITY PRACTICE or defendant upon his cross-bill, neither the complainant nor the defendant shall be allowed to dismiss his bill or cross-bill except upon good cause shown and by special order; and in case of the failure of the complainant or de- fendant to further prosecute his bill or cross-bill, after hearing of proofs thereunder has been begun by him, the defendant to the bill or cross-bill, instead of applying to dismiss the bill or cross-bill for want of prosecution, may apply to proceed to final decree upon the hearing, notwith- standing the failure of the complainant to the bill or cross- bill to take further proofs, or to further appear regularly at the hearing, and upon such application being granted, may so proceed to final decree. (1 N. J. Comp. St., p. 424, §37.) § 2469. Papers in cause to be used at argument or hear- ing. The bill, answer, pleadings, papers, documents, ex- aminations and proofs filed in the cause shall be used at the argument or hearing, for which no charge shall be made by the clerk. (1 N. J. Comp. St., p. 424, § 38.) VIII. Deckee, Its Eneollment and Effect § 2470. Enrollment of proceedings in cause — Signing — Decree not to contain recitals of pleadings. When any cause shall be finally determined in the court of chancery, except where the suit, bill, or proceeding shall be dis- missed by consent, the clerk of the court shall enter or enroll together, in order, the bill, answer, pleadings, re- ports, decretal orders, and decrees in such cause, in a book to be kept for that purpose, which shall be signed by the chancellor as of the day on which such decree was pro- nounced ; but such decree shall not contain any recital of the said bill, answer or other pleadings. (1 N. J. Comp. St., p. 425, § 39.) § 2471. Enrollment unnecessary on dismissal by con- sent. Whenever any suit, bill or proceeding shall be dis- missed in pursuance of any consent or agreement of the parties for that purpose, no enrollment of the bill, peti- tion, answer or other proceedings had in such suit, shall be necessary; nor shall any fees be allowed or taxed; provided, either party may, at his or their own expense, NEW JERSEY STATUTES AND RULES 1491 require the same to be enrolled. (1 N. J. Comp. St., p. 425, § 40.) §2472. Duty of clerk as to enrollment — Time — Fees. Whenever the proceedings and decree in any case are by law required to be entered or enrolled in manner afore- said, it shall be the duty of the clerk to enter or enroll the same, so that the record may be ready to be signed by the chancellor within three months after the final decree in such cause shall have been filed with the said clerk; and no clerk shall charge any fee therefor until such service shall have been actually performed. (IN. J. Comp. St., p. 425, § 41.) § 2473. By whom enrollment to be made — Successor of clerk. Whenever any cause shall be finally determined in the court of chancery, and the person then being clerk of the said court shall cease to be such, before he shall have entered or enrolled the proceedings in such cause, in manner aforesaid, if by law they ought to be so en- tered or enrolled, then it shall be the duty of his suc- cessor in ofiice, within three months after his appoint- ment, to make or cause to be made such entry or enroll- ment. (1 N. J. Comp. St., p. 425, § 42.) § 2474. Signature to enrollment — Successor of chancel- lor. If the chancellor, by whom any cause shall have been finally heard and determined, shall go out of office, and some other person, shall be appointed chancellor be- fore the proceedings and final decree in such case shall have been enrolled and signed in the book kept for that purpose, then it shall be the duty of his successor in office, or the chancellor for the time being, to sign such enrollment with his own name, prefixing to such signature the words "by the statute;" and all proceedings and de- crees so signed shall be as good and effectual in law, to all intents and purposes, as if the same had been duly signed by the chancellor who pronounced such final de- cree. (1 N. J. Comp. St., p. 425, § 43.) § 2475. Decree effective as judgment at law — Decrees or orders for money execution — Liens on land — Filing of abstract. The decree of the court of chancery shall, from the time of its being signed, have the force, operation and 1492 EQUITY PEACTICE effect of a judgment at law in the supreme court, from the time of the actual entry of such judgment; and all decrees and orders of the court of chancery, whereby any sum of money shall be ordered to be paid by one per- son to another, shall have the force, operation and effect of a judgment at law in the supreme court, from the time of the actual entry of such judgment, and the chancellor may order such executions thereon as in other cases ; pro- vided no decree of the court of chancery, hereafter to be made, shall, as against any person not a party thereto, become a lien upon or bind any lands, other than those specifically mentioned and described in such decree, or in a bill of complaint on which the same is founded, until the parties interested in such decree, or some or one of them, shall have filed in the office of the clerk of the su- preme court a statement or abstract of such decree, con- taining the names of all parties thereto, designating particularly those against whom it is rendered, with the state and county in which they respectively resided, the time at which the said decree was signed, and the amount of the debt, damages, costs or other sum of money thereby directed to be paid; which statement or abstract the said clerk shall forthwith record in a proper book, to be by him provided and kept in his office for that purpose; which book shall be properly indexed by the said clerk, and be a public record, to which all persons desirous to examine the same shall have access. (1 N. J. Comp. St., p. 425, § 44.) § 2476. Decree for conveyance of lands effective as con- veyance. Where a decree of the court of chancery shall be made for a conveyance, release or acquittance of lands or any interest therein, and the party against whom the said decree shall pass, shall not comply therewith by the time appointed, then such decree shall be considered and taken, in all courts of law and equity, to have the same operation and effect, and be as available as if the con- veyance, release or acquittance had been executed con- formably to such decree, and this, notwithstanding any disability of such party by infancy, lunacy, coverture or otherwise. (1 N. J. Comp. St., p. 426, § 45.) NEW JERSEY STATUTES AND RULES 1493 IX. Final Pbocess and Duty and Liability of Sheeiff §2477. Sequestration — Writ of fieri facias — Issuance of capias ad satisfaciendum — Enforcement of decree by injunction. The complainant having obtained a decree, it shall be lawful for the said court to issue process for the immediate sequestration of the real and personal es- tate of the defendant, or so much thereof as may be suffi- cient to satisfy the demand of the complainant in the decree specified, with costs, or to issue a writ of fieri facias against the goods and chattels, lands and tene- ments, hereditaments and real estate, of the defendant, upon which sufficient property shall be taken and sold to satisfy said demand, with costs, or to issue a capias ad satisfaciendum against the defendant, upon which writs of fieri facias and capias ad satisfaciendum there shall be the same proceedings as at law ; or to cause, by injunc- tion, the possession of the effects and estate demanded by the bill and whereof the possession or a sale is decreed, to be delivered to the complainant or otherwise, according to such decree and as the nature of the case may require ; and in case of sequestration, the court shall order pay- ment and satisfaction to be made out of the estate so sequestered, according to the true intent and meaning of the decree. (1 N. J. Comp. St., p. 427, § 46.) § 2478. Writ of fieri facia's — From what time binding. A writ of fieri facias shall bind the property or the goods of the person against whom it is issued, from the time that it shall be delivered to the sheriff or other officer to be executed, as at law. (1 N. J. Comp. St., p. 428, § 47.) § 2479. Execution of writs, orders, etc., on death of of- ficer. When any sheriff, master in chancery, receiver or other person to whom any writ of execution or order or decree for the sale of any lands, tenements, heredita- ments, or real estate issuing out of the court of chancery, hath heretofore been directed and delivered, or shall here- after be directed and delivered, hath died or shall die, or hath or shall become unable to discharge the duties, of his office or appointment, or hath removed or shall remove out of the state and continue to reside thereout without 1494 EQUITY PRACTICE discharging the duties of his office or appointment in relation to the command of said writ, order or decree, then, or in either of said cases it shall be lawful for the chancellor, upon presenting a petition setting forth the facts above mentioned and verified to the satisfaction of the chancellor to award another writ of execution, order or decree for sale to be directed to the sheriff of the proper county or to one of the masters of said court, or to some other proper person, commanding him to proceed to discharge the exigencies of said writ, order or decree in the same manner as such officer so dying, becoming- disabled, or removing as aforesaid, was commanded in and by said writ, order or decree so to do, and any pro- ceeding had by such officer to whom such writ, order or decree shall be directed and delivered shall be as good, valid and effectual as if the said execution, order or de- cree first issued or made had been originally directed to him; and any notice of sale given by public advertise- ments by said former sheriff, master, or receiver shall be as good, valid and effectual in law as if the same were given by said substituted sheriff, master or other proper person; and such sheriff, master or other proper person shall be entitled to the same fees for services done and subject to the same suits, penalties, amercements and pro- ceedings for neglect of duty as if the said writ of execu- tion, order or decree had been originally directed and delivered to such sheriff, master or other proper per- son. (1 N. J. Comp. St., p. 429, § 52.) X. Proceedings in Fobeclosube § 2480. Sale— Writ of fieri facias. When a bill shall be filed for the foreclosure or satisfaction of any mort- gage, it shall be lawful for the court to decree a sale of the mortgaged premises, or such part thereof as shall be sufficient to discharge the said mortgage or incumbrances on the said mortgaged premises, besides costs ; which sale shall be made either by one of the masters of the court or by the sheriff of the county where the premises are situ- ated, by virtue of a writ of fieri facias, issued for that purpose ; which said writ of fi,eri facias shall, before it is NEW JERSEY STATUTES AND RULES 1495 sued forth, be recorded by the clerk of the said court in the book kept by him for recording of executions against real estate. (1 N. J. Comp. St., p. 429, § 53.) §2481. Deeds — Payment of proceeds. The sheriff or other officer to whom such writ of fieri facias, as men- tioned in the last preceding section, shall be directed and delivered shall make sale pursuant to the command of said writ, and shall make and execute a deed or deeds for the premises sold, as the case may require; and the moneys arising from the said sale shall be applied to pay off and discharge the moneys decreed to be paid, and the remainder, if any there be, and if the person or persons entitled to receive it shall be absent out of this state, may be invested at interest on such security as the said court shall think proper to order; and the same shall be deliv- ered or paid to the person or persons entitled to receive it upon his application to the court for the same; pro- vided, no greater estate in the premises sold shall at any time be conveyed or granted to such purchaser than would have been vested in the mortgagee had the equity of re- demption been duly foreclosed. (1 N. J. Comp. St., p. 430, § 54.) § 2482. Writ of supersedeas. In all eases of a decree for sale of mortgaged premises against any absent defend- ant, if such -defendant shall, at any time before the sale made by the sheriff, in pursuance of any writ of execu- tion, issued as aforesaid, cause his appearance to be en- tered in court, and shall pay such costs to the complain- ant as the court shall think reasonable, then it shall be lawful for the said court, by a writ of supersedeas, directed to the sheriff or other officer, to stay the proceed- ings on the execution for the sale of such mortgaged premises; and thereupon such proceedings shall be had, as if an appearance had been entered, within such time and in such manner as, according to the rules of the court, the same ought to have been entered', in case the first process in the suit had been duly served. (1 N. J. Comp. St., p. 430, §55.) §2483. Sale when whole sum of mortgage not due. When a decree of the court of chancery shall be made for 1496 EQUITY PRACTICE the sale of mortgaged premises (in cases where the whole sum secured by the mortgage is not due) either for non- payment of any portion or installment of the debt or de- mand intended to be secured by the mortgage, or the non- payment of interest due, or both, and it shall appear to the court that a part of the mortgaged premises cannot be sold to satisfy the amount due without material injury to the remaining part of the mortgaged premises, and that it is just and reasonable that the whole of the mortgaged premises should be sold together, it shall be lawful for the said court to decree a sale to be made of the whole of the mortgaged premises, and to apply the proceeds of the sale of said premises or so much thereof as shall be necessary, as well to the payment of the interest, installments, or portions then due, and also the costs then due and pay- able as to the payment of the whole or residue of the debt or demand which hath not become due and payable, and the residue of the proceeds of such sale to be paid to the person or persons entitled to receive the same, or to be brought into court to abide the further order of the court, as the equity and circumstances of the case require ; pro- vided, when the residue of the debt or demand intended to be secured by the said mortgage is payable at a future day without interest, and the mortgagee is willing to receive the same, the court shall deduct a rebate of legal interest for what the mortgagee shall receive on the said debt or demand, to be computed from the time of the actual pay- ment thereof to the time such residue of the debt or de- mand would have become due and payable. (1 N. J. Comp. St., p. 430, §56.) § 2484. Entry of satisfaction of decree. "When the amount due on any decree in chancery for the foreclosure and sale of mortgaged premises shall be paid and satisfied in any other way than by a sale of the mortgaged prem- ises, or when any decree in chancery for the pajnuent of money shall be paid and satisfied, satisfaction shall be en- tered on the margin of the enrollment by the party receiv- ing satisfaction, or his solicitor, or by the clerk, by virtue of a warrant of attorney from the party duly acknowl- edged or proved, in the same manner as satisfaction is NEW JERSEY STATUTES AND RULES 1497 entered of judgments at law; and upon filing an acknowl- edgment of such satisfaction, under the hand of the so- licitor of any party, such satisfaction may be entered for him by the clerk, and the same fees shall be paid as in the supreme court for like services. (1 N. J. Comp. St., p. 431, §57.) §2485. Owner of unrecorded lien bound by decree — How made party. In any suit for the foreclosure of a mortgage iipon or which may relate to real or personal property in this state, all persons claiming an interest in or an incumbrance or lien upon such property, by or through any conveyance, mortgage, assignment, lien or any instrument which, by any provision of law, could be recorded, registered, entered or filed in any public office in this state, and which shall not be so recorded, registered, entered or filed at the time of the filing of the bill in such suit, shall be bound by the proceedings in such suit, so far as the said property is concerned, in the same manner as if he had been made a party to and appeared in such suit, and the decree therein made against him as one of the de- fendants therein ; but such person, upon causing such con- veyance, mortgage, assignment, lien, claim or other instru- ment to be recorded, registered, entered or filed as pro- vided by law, may cause himself to be made a party to such suit by petition, in the same manner as is by this act provided in the case of persons acquiring an interest in the subject-matter of a suit after its commencement; the petition in such case must set forth such instrument at length, and the title and interest of such party in such manner as to show that he has an interest in the subject- matter, and is a proper party in that suit. (1 N. J.