(JnrttpU Slam ^rlyonl SItbrary Cornell University Library KFN5997.B23 1875 V.I A treatise on the practice of the Court 3 1924 022 783 850 Cornell University Library The original of tinis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022783850 A TRExiTISE THE PRACTICE COUET OF CHANCERY APPENDIX OF PRECEDENTS. KBVISED AND ENLARGED ; WITH NOTES AND REFERENCES TO STATUTES AND LATER DECISIONS. By OLIVER L. 5 ARBOUR, LL.D. IN THREE VOLUMES. Vol. I. BANKS & BROTHERS, 473 AND 475 BROADWAY, ALBANY; 144 NASSAU ST., NEW YORK. 1880. IR^'Z-^fZ Entered accoirling to act of Congress, in the year eighteen hnndred and seventy-tbnr, Br BANIvS & BROTHERS, In the office of the Lil>rai'ian of Congress, at Washington. ANALYSIS OF THE MATTEKS CONTAINED IN THE TEXT OF THIS VOLUME. (77ie references are to the top-paging.) BOOK I. PROCEEDIXGS IN A CAUSE FEOM ITS COMMENCEMENT TO A DECREE. CHAPTER I. BILL OF COMPLAINT. I'ngc. Sect. 1. Natnrc and office of a bill XS 2. Division of bills, 34 3. Constituent parts of an original bill 35 4. Matter of a bill 38 Dcgi'ee of certainty, 38 Statement of complainant's resilience,. 311 Mnst state a case within the jnrisdiclion of the conrt, 39 Bill mnst state a snfflcient matter 39 Interest of parties, 39 Prayer for relief, 40 Bill mnst be brought for the wliolesnbject w Mnst state the whole case, 49 Mnltifarionsness 40 Scandal and impertinence 41 Setting out deeds and documents, 41 ii. By whom, and how, bills , Endorsing 4.'. Filing, 40 S. When bill to be accompanied by an aflidavit 47 l\r ANALYSIS. CHAPTEE II. PROCESS FOR APPEARANCE. Page. Sect. 1. SnbpoGn.a to .nppear 48 Fo i-m of, , , 49 When to be tested andmiide returnaule .' 50 Sealing and signing, 50 Service of, 50 On married women 50 Wlicre defendant is absent fi'orahonio, 50 On a prisoner, 50 Wliere defendant has no family, 51 Service ont of the state, 51 When to be served 51 On infhnts 51 Ou hinatics 52 On a corporation 52 On the United States or a state, 52 Extraordinary or substitntcd service 52 By whom served 53 Alias or pinries writ, 53 1. Attachment. When proper 54 Against whom issued, 54 How obtained, 95 When to be tested and made returnable 56 To wliom directed 56 Order to fix amount of bail 56 Writ, how endorsed 56 How executed, 57 Putting in bail, 57 Return of, 58 Proceedings on return of writ. 1. Where the defendant makes default, 58 2. Where defendant appears personally, or is brought in by the sheriff,. ... 60 Practice, where defendant is ah'eadyin custody for other causes, 61 3. Attachment with proclamations 62 4. Commission of rebellion 63 To whom directed 63 How issued, 64 How executed, 64 Return of, 65 Return of, how compelled, 65 5. Sergeant-at-arms, 66 6. Sequestration 68 Nature of the process 68 To whom directed 63 When issued, 68 Obtained upon motion only, 69 Order for, 69 How endorsed 69 When to be executed 69 How to be executed, 70 What things may be seized under, 70 ANALYSIS. V Page. Sect. 6. Power and dnty of aeqnestrators 71 Attornment of tenants 71 Sale of goods, , 72 Scgnc9trators to account, &c... 7'3 Wri tor assistance, 72 Examination ;»'o ijiferesse s?(o 7J Injunction to stay proceedings at law 74 When a- trial at law, or a reference, will be directed 74 Effect of appointing a receiver, 74 Abatement of snit by death of parties 7.5 Sequestrator abnsing his jjower, 75 Costs 75 7. Process against corporations , 75 Distringas, 75 Teste and retnrn of, 76 Alias and plnries distringas 76 Sequestration 76 Process where corporation has no property 77 CHAPTEE III. APPEARAN"CE. Sect. 1. Of appearance in general, 77 Nature of, 77 Effect of, 77 What amounts to, 77 2. Voluntary appearance, 79 Where to be entered 79 When to be entered 79 How to be en tered, > 79 Notice of appearance 79 3. Compulsory appearance, 79 4. Appearing gratis 81 6. Appearance by married women, 83 6. Appearance by infants, S3 Guardian acl litem , 83 How appointed, 83 Who may be appointed, 84 Dnty, compensation and liability 85 Appearance, how entered by guardian ad litem, 86 7. Appearance by idiots, lunatics, &c., 86 8. Appearance by coi-porations, 87 CHAPTER IV. PROCEEDINGS TO COMPEL AN ANSWER. 87 CHAPTER V. TAKING BILL AS CONFESSED. Sect. 1. Nature of the proceeding 90 2. For want of an appearance, 9] I'age. Sect. 2. Where tlio subpoena lias been |)ei'sonally served,, . . . , !il Where Uercatlunt is taken on an attachment, and being bailed, he fails to appear ill Where defendant appears personally on retnrn of attachment, or is brought in by sheriff, bnt refuses to enter liis appearance 91 Against non-resident, absent, or concealed defendants, 92 Order to ajipear 93 Pnblioation of notice of order, 94 Or4er to take bill as confessed 91 Infant defendants 95 Lnnatic absentee 93 Foreign corporation G6 3. For want of an answer,., ••• 96 Where defendant appears vohintarily, 90 Where defendant is taken upon an attachment, 97 OHAPTEE VI. THE DEFENCE TO A SUIT. Sect. 1. Proceedings by defendant previous to putting in his defence, 99 Employing a sol icitor 99 Motion to deliver copy of bill 100 Motion to take bill from Hies .' 100 Excepting to bill for scandal or impertinence 101 Motion tbr production of papers lOi Security for costs ' 102 2. The different sorts Of defence, 105 3. IJemurrer. Its natnre and nses 105 Dcmnrrer to discovery must be special 107 Speaking demniTers 107 Several causes of demurrer, 107 Separate demurrers, ". . 107 Cannot be good in part and bad in part 107 Where coupled with an answer, lOS By married women 103 DemniTer ore tenus lOS DemuiTer, how signed 109 When to be filed, 109 Service of, ; no Noticing for argument 110 Withdrawing demurrer 1H Hearing HI Amending, 1 1 1 Effect of allowing, m Effect of overruling 112 Taking demurrer offthe files ng Amending bill after demnrrer Hg 4. Plea. Nature and nses of pleas IH Form of, .^ 11,5 Signature 117 AiXALVSTS. vii Pag-c. Sect. i. When it mnst bo upon oath, 117 When to be flJod, UU Replication to plea, lig Amendment of bill after plea, : 120 Withdrawing 130 Effect of allowing 12| Saving the benefit of a plea to the hearing HI Ordering a plea to stand for an answer, 123 Costs ; I'j'i Overraling, .' 122 O verrnling as frivolons, 122 AVhere plea is found to be false 125 Plea of former decree, &c -. 125 Amending 127 Pleading rfenowo,. .'. 127 When to be snpported by answer I2!i 5. Answer. Nature and uses, 130 1. Of the manner of answering the complainant's case 130 2. Of the manner of stating the defendant's defence 137 Schednles 13;^ Form of, 140 Engi-ossing, 141 Numbering and marking folios, : 141 Signing 141 Signature of counsel, '. 142 Swearing to, 142 Waiver of oath, 14;{ Form of oath, 144 Jnrat 144 Before whom answer may be sworn to, '. . . 145 Endorsing, 146 Filing, 146 Serving 146 Time for answering, 146 Answer by attorney, 148 " of an infant 148 *' of a married woman. ,_. 150 " of an idiot or lunatic 154 " of a foreigner, 154 " of a deaf and dumb person 155 " of a blind person, 155 " of an illiterate person, 155 " of a corporation, 166 " of an attorney general, 1.58 Joint or separate answer, 158 Answer to amended bill, 15!l Commission to take answer, KiO Amendment of answer, Ifi.'J Supplemental answer, note 84 16.5 Oftaking answer off the flies 168 6. Disclaimer, .' 170 7. Joinder of several defences, 173 VUl ANALYSIS. CHAPTER VII. PKOCEEDINGS ON THE PART OF THE COMPLAINANT PREVIOUS TO REPLYING. Sect. 1. Excepting to answer. Page. 1. Exceptions for insafficieucy, 176 In what cases they lie 176 E.xceptions to answers to amended bills, 178 Waiver of, 180 Effect -ot; 181 Formot; 181 Within what time to be filed, 18.'i Obtaining further time to except 184 Filing and service of, 18.1 Snbmission to, ISA Reference of, 186 Master's report on 189 Exceptions to !!)() Form of, 191 Filing 192 Hearing 1()2 Costs on, 193 Proceedings for abettoi' answer i 193 Form of further answer, 195 Third answer iiisnfflcient 198 Examining defendant on interrogatories, 199 Master's report npon defendant's e.xamin ation 201 Taking bill as confessed, on third answer reported insufKcient, 201 2. Exceptions for scandal and impertinence, .'. ... 202 Costs of exceptions to answer 205 2. Amending bill of complaint. In what cases the bill may be amended, 206 When amendment may bemadeof conrse ; and when only on special motion,. . 209 Amendment of sworn bills 210- " of injnnction bills 210 *' after demnri'cr 211 " after ploa, 212 " after exceptions to answer, 212 " after replication 213 '• at the hearing 215 " after decree 217 " npon appeal, 217 Second amendment 218 In what time amendment to be made 219 Amendments, how made 219 Service of amendments 222 Terms of amendment, 2*22 Time to answer, after amendment, 223 Effect of amending biU 223 3. Dismissing bill, by complainant, 225 4. Motion for production and inspection of papers. Generol principles respecting 229 What is a sufficient possession by defendant, 231 Complainant's interest in docnments, 232 Other cases in which production wiU be ordered ;:54 Mode of inspecting documents, &c., 235 ANALYSIS. IX Page. Sect.5. Motion for the payment of money into court, 236 In what casus proper. 1. Upon admissions, 237 2. In cases of executors and trustees 2.3S 3. In cases of vendor and pnrcliaser 239 4. In ottier cases, and generally 240 In what time money to bo paid in 241 Effect of paying money into court, 341 Money how deposited and invested, 211 CHAPTEE VIII. PROCEEDINGS ON THE PART OF THE DEFENDANT PREVIOUS TO REPLI- CATION. Sect. 1. Motion to dismiss bill 242 2. Cross bill, 246 3. Putting complainant to his election 246 CHAPTEK IX. REPLICATION. Nature and office 249 Form of, 250 Within what time to be filed , 250 Extending: time to reply 251 Filing nunc pro tunc, 252 Effect of filing 262 Withdrawing 252 CHAPTER X. TESTIMONY. Sect 1. Who may be witnesses, — 254 I. Genera] incompetency, 255 II.» Incompetency in the particular f uit, 256 1, When a party to the suit may be "examined as a witness, 2.'i5 When a complainant may be a witness 255 When a defendant may be a witness, 257 1. On the part of the complainant 257 .^ 2. On the part of a co-defendant 260 2. What persons other tlian parties may be witnesses 262 What sort of interest will exclude 262 It must be a present interest, 263 Ignorance as to interest, 263 Honorary obligation, 264 Witness testifying against his interest,., 2'i4 Interest equally balanced 261 Interest acquired fraudulently, 264 Interest acquired after examination, 264 Husband or wife of party , 264 Interested witnesses, when admitted 269 Amoun t of interest 2CS X ANALYSTS. Page. Sect. I. Objections to coinpotency of witness 2(i6 Competoocy, how lestored -Bli III. Incompetency as to particular brandies of eviilcnce, -BS Attorneys, &c 26:* Conveyancers, interpreteiB, and clerks, 268 Confidential commnnications not of a legal namre, 263 Parents to bastardize isano 269 2. Examination of witnesses, 269 I. De heme esse. Different methods of examination 270 1. Under an order of the conrt, 270 In what cases resorted to 270 Within what time to be had 271 Notice of applica4;ion, when necessary 272 Allidavit in support of motion 273 Order for, 274 Where applied for by the defendant, 274 By whom witnesses are to be examined de bene esse, 274. Under a commission 274 Mode of taking the examination of witnesses de bene esse 274 Notice of examination, 275 After examination de bene esse, examination in chief to be had, . . 275 2. By summary proceedings under the statute 276 II. By an examine*' 276 In what cases, 277 By what examiner 277 At what time tn be hail 277 Enlarging time to examine witnesses, 278 Notice of examination 278 Attendance of witnesses, how compelled, 279 Subposna duces tecum 279 Service of subpoena 280 Proceedings against witness who fails to atten3C'Ll. 4. Effect of; what questions are brought np or may be raised, 735 To the court of appeals ; when a stay of proceedings, 739 To the general, term, &c. j when a stay, of proceedings .^ 742 Effect of, as to power of court below , 747 Sect. 5. Statutes respecting, how constrned, 749^ note 13 Time fov appealing, 74.9 Notice of j udgment or onler 75O What ])olnts may be raised upon, 752 Waiver of right to appeal 757 AJVALYSTS. XXVtt Page. Sect. 5. Dismissal of, 758, note 17 How made; exceptions or case; notice ol'; parties, how designated; title of action; papers, how entitled; transmission of papers to appellate conrt; judgment, 758, note 18 1. Exceptions, or case 758 2. Notice of, 759 3. Parties, how designated; title of action; papers; how entitled, 761 4. Transmission of papers to appellate court, 761 Jndgraenton ^ ; 761 KestitnCion, .-. 763 Entering and docketing, 765 Sect. 6. To the general tei-m, ftom judgments entered upon a repoi't of referees,' or the direction of a single judge 765 Method of appealing, notice 768 Hearing of, 771 From orders made at u special term by a single judge, or out of court, upon notice 775 Sect. 7. To the court of appeals 77" What decisions are reviewable 778 When a stay of proceedings 739 Statement of facts by general term, 781 Power of the court of appeals ; judgment 782 Time for appealing 7Stt Kotice of, 768, 788 Security on 788 1. For payment of costs and damages 789 2. On appeal from a judgment for money 790 3. On appeal from a judgment for the assignment or delivery of documents, &c 791' 4a On appeal from a jndgmeut for the sale or delivery of possession of real property, or for the sale of moi'i-" " the said defendant." Davison v. Savage, 6 Taunt. 121 ; Stephenson v. Hunter, id. 406 ; Stanley v. Chappell, 8 Cow. 235.) And this rale applies, also, where the plaintirf sues in a special character, and commences the com- plaint by stating his character. (Stanley v. Chappell, 8 Cowen, 235 ; Ketchum v. Morrell, 2 N. T. Leg. Obs. 58.) The only way of presenting, as a defence, the misnomer of the plaintiff , under the Code, is by answer. If not so set up, it is not available on the trial, (traver v 2'he Eighth Avenue li. R. Co. 6 Ab., Ji. S. 46; S. C. 3 Keyes, 497; 3 Trans. Ap. 203. See Bank of Havana v. Magee, 20 X. T. 355.) It may be coiTocted on the trial or afterwards, or before the trial, by amendment. {Barnes v. Ferine, 9 Barb. 202 ; S. 0. 15 id. 250; 12 N". T. 18; Bank of Havana v. Magee, supra ; Walker v. Perkins, 9 Jur. 665.) It is not a ground of nonsuit. (Id.) In Traver v. The Eighth Avenue Rail Road Co. supra, it was held by the Court of Appeals that the only mode of present- ing the defence of misnomer in bringing an action by a married woman in her maiden name, is by answer ; and if it is not set up in the answer, it is unavailable upon the trial. As regards a misnomer of the defendant, it has been held that when he is sued by a wrong name, his remedy is by plea in abatement ; and he cannot move to have the proceedings set aside. {Miller v. Stettiner, 22 How. Pr. 518 ; S. C. 7 Bosw. 692, con- tra, Elliott V. Hart, 7 How. Pr. 25 ; Bole v. Manley, 11 id. 138.) An appearance by him, in the action, by attorney, generally, is a waiver of the iiTegularity. {Baxter v. Arnold, 9 How. Pr. 445.) The objection to a misnomer may be raised at any time' (Elliott V. Hart, 7 How. Pr. 25 ; Bole v. Manley, 11 id. 138 ; Farnham v. Hildreth •.ii Barb. 277 ;) and the plaintiff may be allowed to correct. ( Wateriury Manuf Co V. Kra-use, 1 Hilt. 560 ; Follower v. Laughlin, 12 Ab. Pr. 105.) Where an infant sues, by guardian, the complaint should contain an allegation of the appointment of the guardian by tlie court, or a judge ; and this should'be stated in a traversable form. (Hulbcrt v. Young, 13 How. Pr. 414 ; Ch-antmore v. Thrall 44 Barb. 173.) In such an action the title of the complaint should be "A B bv c' D. his guardian, v. E. P." {Hillv. Thaeter, 3 How. Pr. 407 ; S. C. 2 Code, Rep. 3. ' Yet if the complaint contains, in the body of it, the names of the plaintiff and defendant in a manner to be understood "by a pers.ou of common understanding," it satisfies the requii-oments of the Code. {lb.) There should be an allegation of the plaintiff's infancy. Oluip. 1.] PROCEEDINGS TO A DECREE. 35 Tlie cliai-ging part of a bill should not contain anj statement which *is not true-; as, if the bill is sworn to, it is perjur}- for the com- [ *36 J plainant knowingly to make a false charge or avei'ment in the charging us much as if he makes a false statement in the stating part {i) Sixth. The clause oi jurisdiction. " In tender consideration where of, and forasmuch," &c. This is an averment that the complainant has (t) Smith V. Clark, I Paige, 368. "Whore a complaint was entitled, "J. G. by J. G., his guardian v. G. T.," and com- menced thus : "The plaintiff complaining, states," J". T. 410*. Union Mat. Ins. Co. v. Osgood, 1 Duer. 607. > Jfor need the com plaint of a coi-poration specify by date and title, the amendatory acts relating to the act from which it derives its iucorporati(ra. If it designate the act incorporating it, and then refers generally to the acts amending that act, it will be suflicieut. {The San Mutual Ins. Co. v. Dwight, 1 Hilt. 50. * The general allegation, in a complaint, " that the plaintiffs are an incorporated company, organized pursuant to the provisions of the act," &o., is sufficient to show an organization. {Oswego and Syracuse Plank Railroad Co. v. Rust, 5 How. Pr. 390 ; Stoddard v. Onondaga, Annual Conference 12 Barb. 473.) The complaint, in an action hy a corporation, need not allege that the plaintiffs are a corporaticm; nor, in an action against a oorporatio'ii need the complaint allege that the defendants are such. {Lighte v. The Everett Fire Ins. Co. 5 Bosw. 716.) But where an action is brought by a foreiqu corporation on a contract not made with them in their corporate capacity and name, the complaint must allege the incorporation of the plaintifts Enouo-Jh must be aUeged to show it to be a corporation, aud to indicate the state or county to which it belongs. {Connsctieut Bank v. Smith, 17 How Pr 487- S. C. 9 Ab. 163.) A foreign eorporaticm suing in our courts, aud not alle<'in9 (loj Mitf. Eq. PI. 38. (x) Hinde, 18. s ■ - • In Griffith Y. Ricketts (J> Hare. 195,) where the question of title to the snbiect matter in dispute was involved in the description of the plaintiif, the court refused on motion, to order either that the bill should bo taken off the file or that the plaintiff should give security for costs. ' As to a change in the address of a plaintiff, after bill filed, see Bex v Gillesoie (7 Beav. 269.) -^ ' Vhen the C(rasent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof beiuT stated in the complaint. (Code, 5 119.) In Co;e v. JJeynoifis, (18 N". T. 74,) the d'efendant's firm was indebted to the plaintiff's firm upon an account stated and settled between them. In an action upon the account, one of the individuals, who was a momh -r of both firms, refusiug to be joined as plaintiff; was made a defuudaut, aud the ioiii- der was .sustained. 40 Chap. 1.] PROCEETUXGS TO A DECREE. 37 caiise. And if, when the bill is filed, the defendant does not intend to leave the country, it would be highly improper to pray the writ ; as a groundless suggestion that the defendant means to abscond would press too harshly, and would also operate to create the very mischief which the court, in permitting the motion for it to be made without notice, means to prevent, {y) The prayer for process indicates the persons who are intended to be *made defendants to the suit. It was formerly held that they [*38 ] only are defendants to a bill against whom process of subpoena is prayed, {z) But it has been decided in this state that persons may be impleaded and treated as defendant's by a clear statement in the bill to that effect, without praying for a subpoena against them by name, (a) It is, however, much the most convenient in practice, that the parties should be named in the prayer for process. In England it is said not to be necessary to pray process against per- sons who are charged to be out of the jurisdiction of the court; but it is the practice, where any of the defendants are out of the jurisdic- tion, for the plaintif& to state the fact and pray process against them when they shall come within the jurisdiction, {b) In this state no special provision in the prayer of process seems necessary to reach such a case ; as under the rules of the court relative to publication of orders to appear against absent defendants, they are bound to enter their appearance without any service of process upon them. Where a corporation is made defendant, the bill should pray that it may appear according to law. (c) When the United States or a state is a party defendant, the bill does not pray any subpcsna against them, but that the District Attorney of the United States, or the Attorney General of the state, on iieinp attended with a copy of the bill, may appear and put in an &■ swer thereto, &c. {d) iv) CoUinson v. , 18 Ves 353. U) Fawkes v Pratt, 1 Peere Wms. S93. Windsor v. Windsor, 2 Diok. 70 (re) -2 John. Ch. Rep, 345. Elmendorlv. Delaucy, Hopk. 555. (6) 1 Smith, 45. (rf) I " App.' X. ' Mitf. Eq. PI. 37. Willis' Eq. PL 7. 33 PROCERDhyas TO A DECREE. [Book T. SECTION IV. MATTER OF A BILL. Degree of certainty.] The bill must have a reasonable certainty, l)ut need not set out the matter with that decisive and categorical cer- tainty which is requisite in pleading at common law. (e) (4) It should, (e) 3 Woodes. Lect. 55, p. 370. (4) The Code of Kew York directs that a complaint shall contain, in addition to the title of the cause, "a plain and concise statement of the facts constituting a cause o) action without unnecessary repetition." (Code sec. 1, 142.) The Codes of Ohio, Wisconsin and Kansas, and probably other States, contain the same provision. (Code of Ohio, sec. 8,5, 19.2; Swan's Plead, and Prac. 130; Seney's Code, 100 ; "Wis. Code, sec. 47 ; Code of Kansas, sec. 94. See Ch-een v. Palmer, 15 Gal. 413; lieconillat y. Uiene,'ii id. 455; Wilionv. Cleveland, W id. 193.) In Massa- chusetts, rule 4, of the rules of practice in chancery, requires that " the bill shall contain a clear and explicit statement of the plaintiflPs ease." In Maine, the bill must " set forth clearly, succinctly and precisely the facts and causes of complaint, with- out oircumlooutiou or repetition." (Rule 1, 37 Maine Kep. 581, App.) The nature of the action and the cause of action, are shown by the facts stated in the complaint. (Ch-aves v. Spier, 58 Barb. 349.) The plaiatiflf is required to state therein the facts which constitute his cause of action, and which he is required to prove ; and nothing more. (Clark v. Harwood, 8 How. Pr. 472 ; Dunning r. Thomas, 11 id. 281 ; Bracket v. Wilkinson, 13 id. 102 ; Wade v. Rusher, 4 Bosw. 537 ; Cole v. Blunt, 2 Bosw. 116; Smith v. Lockwood, 13 Barb. 209 ; Mann v. Mnrewnod, 5 Sandf. 558.) A general averment that the acts of the defendant are contrary to the statute without setting forth in what manner, is not sufficient. {Smith v. Lockwood, supra.) A statement that the contract sued on was made payable in a specific kind of money is an allegation of a material fact. (Wallace v. Eldridge, 27 Cal. 498.) Facts extrinsic to the cause of action, which are relied on as a ground of arrest, should not be alleged in the complaint. (Elwood v. G-ardner, 10 Abb., N". S. 238.) The theory of the present system of pleading is, that the plaintiff should know be- fore hand what are the facts upon which ho will rely, and that the complaint shall contain these facts, stated plainly and concisely, without unnecessary repetition. "WTiatcver more a complaint contains is uuauthoiized and may be stricken out. Hence a variety of counts, or statements of causes of action, founded upon one and the same cause, is no longer allowed. {Churchill v. Churchill, 9 How. Pr. .552 ; Nash V. McCaidey, 9 Abb. 159 ; Fern v. Vanderbilt, 13 id. 72 ; Lackey v. VanderUlt, 10 How. Pr. 155 ; Dunning v. Thomas, 11 How. Pr. 281.) It is the office of a complaint to state facts aloue, and even then not always in de- tail. {Kelly V. Breusing, 33 Barb. 601 ; 33 id. 123.) N"or should the evidence of those facts he stated. {Cahill v. Palmer, 17 Abb. 196; Floyd v. Dearborn, 2 Coda E. 17 ; BiUUr v. Viele, 44 Barb. 166 ; Harlow v. Hamilton, 6 How. Pr. 479 ; Shaio v. Jayne, 4 id. 119 ; S. 0. 2 Code E. 69 ; Boyce v. Brown, 7 Barb. 80 ; Knoioles v. Gee, 8 id. 300 ; Milliken v. Gary, 5 How. Pr. 273 ; S. C. 3 Code R. 250.) Tot the statement .should be full enough to enable the court on proof or adooission, of the facts set forth to grant the relief sought. {Tallmanv. Green, 3 Sandf. 438.) ' Care must be taken that every averment necessary to entitle the plaintiff to the re- lief prayed for should be contained in the stating part. (Story's Eq. PI. sec. 32 • White V. raw, 7 Term. 357 ; Wright v. Dame, 3 Pick. 55.) The plaintiff must show a good cause of action {Russell v. Ford. 3 Cal. 86 ; Little v. Mercer, 9 Mo. 216) and facts suf- ficient to constitute it {Summers v. Farrish, 10 Cal. 347 ; Maguire v. Vice 30 Mo 429; Barsch v. Dittrick, 19 id. 129.) All the facts which constitute the cause of action must be stated, and every fact on which the right of action depends must be deemed constitutive ; in the sense of the Code. {Gurney v. Fowler, 4 Sandf 655.) The abolition of the forms of pleading, made by the Code, does not excuse a'paitV IVdin stating clearly and concisely the facts necessary to entitle him to maintain an action. Hi cannot assume to state the law of th.j case, iu a complaint, and omit the Chap. 1.] PROCEEDIXGS TO A DECREE. 38 however, state the right, title, or claim of the complainant, with ac- curacy and clearness; and it should in like manner state the injury or grievance complained of, and the relief asked in the court. The other facts upon -whioh the law ig calculated to operate in. determining hiis cause of action. {Phinney V. Phinnei/, 17 How. Pr. 197.) The complaint should C(mtain an allegation as to every fact which the plaintiff is bound to prove upon the trial, as part of his case to Aaintaiu his action. (Cole v. Bltmt, 3 Bosw. 116 ; 9 Barb. 158 ; 1 Duer. 707 , 2 id. 670.) If it does this, it will be sufficient. (Safford v. Drew, 3 Duer. 632 ; Catline v. G-unter, 1 id. 253. Allen v. Patterson, 7 ST. T. 476 ; Seiglit v. Child, 34 Barb. 186.) If i; appears from the tiicts alleged in the complaint, that if they are established on a final hearing, the court, in the exercise of equitj' jurisdiction, would not refuse the relief sought, a demurrer on the ground that the complaint does not state facts suffi- cient to constitute a cause of action, cannot be sustained. {Hillman v. JSilliaan, 14 How. Pr. 456.) ^ If the stating part does not show the equity of the plaintiff's case, the defect can- not be supplied by inference, or by refereuce to averments in other parts of the com- plaint. ( Wright v. Dame, 22 Piot. 55 ; Shepard v. Shepard, 5 Conn., 57 : Hood v. Inman, i John. ch. 437; Estep v. Watkins, 1 Bland. 486; Townshend v. Duncan, Sid. 45.) The plaintiff will not be permitted to offer or require evidence of any material fact not distinctlv stated in this part of the complaint. (See Story's Bq. PI. §§ 28, 257; Crockett v. Lee, 7 "Wheat. 522; Jackson y. Ashton, 11 Peters, 229; ISprigg v. Alhin, 6 J. J. Marsh. 158; Bristol v. Bensselaer and Saratoga Railroad Co. 9 Barb. 158.) Thus, if he would hold the defendants as comm(m carriers, he must state that they were common cawiers ; and if he does not allege that they received or were to receive, a compensation for the carriage of the goods, their contract must be regarded as made without a consideration, and if a demand is necessary, it must be proved. (Bristol v. Rensselaer and Saratoga Railroad Co. supra.) Jlfor can he recover on a case different from that alleged. (Sanborne v. Kittredge, 20 Term. 632 ; Gibson v Carson, 3 Ala. 421 ; Harding v. Hardy, 11 "Wheat. 103 ; Jackson v. Ashton, 11 Peters, 229; Bristol v. Rensselaer and Saratoga Railroad Co. 19 Barb. 158.) In equity proceedings, the plaintiff must recover, if at all, secundum allegata as well as probata. He cannot recover upon gi-ounds not stated in the complaint. (Bailey v. Ryder, 10 2^. Y. 363. ) Pacts proved, but not pleaded, are not available to the party proving them. (Allen v. Mercantile Mu. Ins. Co. 46 Barb 642 ; Cur- rie V. Cowles, 6 BosV. 4.52.) Facts may be aUeged according to their legal effect, but if the facts proved are du'eetly different from those aUeged, there will be a fatal va- riajice. (Gasper v. Adams, 28 Barb. 441.) A general statement or charge, however, of the matter of fact, is sufficient ; it is not necessary to charge minutely .lU the cir- cumstances which may conduce to prove the general charge ; for these eireurastances are properly matters of evidence, which need not be charged in order to let them in as proofs. " (Story's Eq. PI. § 28 ; Nesmith v. Calvert, 1 "Woodb. and Minot, 34 ) The words "facts constituting a cause of action," mean the facts which the evidence upon the trial will prove, and not the evidence which will be required to prove the existence of those facts. ( Wooden v. Straw, 10 How. Pr. 48.) The facts required by the Code to be stated, are m general such facts as were required to be stated in pleadings at common law ; that is, issuable facts, faots essential to the cause of action, and not the faots and circumstances which merely go to establish such facts. (Knowles v. Gee, 8 Barb. 300.) They should be facts from which the law alone, without the aid of a jury, draws the conclusion that the cause of action, or defence exists. (Page v. Boyd, 11 How. Pr. 415.) The facts constituting the cause of action, spoken of iu the Code, are not merely the facts upon which the plaintiff's right to ask relief is founded, but these words include all such facts as are neeessaiy to found the particular relief demanded, aud to' enable the court to give the proper judgment in the action. (Howard v. Tiffany, 3 Sandf. 695.) The Code has not changed the substance of the old rules of equity pleading. A complaint seeking equitable relief, should set forth the facts as much at large as was required in a well drawn bill in equity, and include faots bearing on the quosticm of costs. (Ibid.) The statement of facts should be in contdc, to recover the p is-^ession of real listute, the facts set forth in the cmiplaiut must show that the plaintiff has a legal title to 51 39 PROCEEDINGS TO A DECREE. [Book I. with stating the residence of tlie complainant. If this statement is the premises in question. The mere averment that he has such a title, is insafficient. {Lawrence v. Wright, 2 Duer. 673.) Pacts must also be pleaded as affirmative or positive facts, and not by way of mere argument lu' inference. Hypothetical pleading, conditional statements, oi' alle- gations lu the alternative are not allowed. (Gorbin v. George, 3 Abb. 4t).i ; Porter V. McGreeletj, 1 Code Bep., N". S. 88 ; Lewis v. Aelcer, 11 How. Pr. 164 ; Weis v. Fan- ning, 9 How. Pr. 544 ; Arthur v Brooks, 14 Barb. 533 ; Dovan v. Dinsmorc. 33 Barb. 86; Van Sant. Eq. PI. 94.) And whatever is essential to the rights of the plaintiff, and is necessarily within his Icnowledge, ought to be alleged j>ostiiyeJ//. (1 Dan. Oh. Pr. 365, 3d. Am. Ed. ; Mclnlyre v. Union College, 6 Paige, :239 ; Darthey v. Clem- ents, 6 Beav. 165; Truscott v. Dale, 7 How. Pr. 2il.) Thus it has been held that it is not a sufficient averment of afact. to state, in a bill, that the plaintiflf "is so in- formed." (Lord Uxbridge v. Staveland, 1 Ves. 256 ; Lucas v. Oliver, 34 Ala. 626 : Cameron V. Abbot, 30 id. 416 ; Joues v. Cowles,26 id. 612,) or to say that one defendant allege.5, and the plaintifi' believes, a statement to be trne. (Bgremont v. Cowell, 5 Beav. 620.) N"or is aa allegation that the defendant sets up certain pretences, fol- lowed by a charge that the contrary of such pretences is the trath, a sufficient alle gation or averment of the facts which make up the counter statement. (1 Dan. Ch. Pr., 3d. Am. Ed. 366. By this, however, it is not meant that the allegations mu.st be .set forth absolutely in form, upcm the personal knowledge of the plaintiff. Faot.^ may be set forth im information and belief, and even upcm belief alone. (Howell v. Frazer, 6 How. Pr. 221 ; N. Y. Marble Iron Works v. Smith, 4 Dner. 362 ; liadicai/ V. Mather, 5 Sandf 654 : Van Sant. Eq. PI. 94 ;) unless in particular cases, as where the fact is presumptively within the knowledge of the plaintiff. (Bichardson V. Wilton, 4 Sandf 707.) That a party " believes " a fact to exist, is equal to the alle- gation that " the fact exists, as he believes." (Howell x. Frazer, 6 How. Pr. 221; S. C. 1 Code R., jST. S. 270.) In Trnscott v. Dale, (7 How. Pr. 221,) the words " as the plaintiff is informed and believes." in a verified complaint, were stricken out a.s redundant. And it was held in that case tbat allegations should be positively made, in order to prevent immaterial issaes. The plaintiff need not distinguish, in his complaint, the allegations which are therein made on information and belief; as the ordinary jurat to the complaint supersedes the necessity of so doing, (liicketts v. Grreen, 6 Abb. 82.) Alternative pleading was never good, under any system of practice, and is not now warranted by the Code. (Oorbin v. George, 2 Abb. 465.) It has been seen that the Code requhes the complaint to contain a statement " of the facts constituting a cause of action." The complaint must be sufficiently full to enable the court, upon the proof or admission of all the facts set forth in it, to gi'ant the relief sought ; otherwise it will be objectionable, cm demurrer, for insufficiency. (Tallman v. Green, 3 Sandf. 437.) It must set forth all the material and issuable facts which, if controverted, the plaintiff will be bound to prove in the first instance, in order to show himself entitled to the judgment demanded. (Garvei/ v. Fowler, 4 Saudf 665; Saffordy. Drew. 3 Duer, 632; Allen v. Patterson, 3 Sold. 478.) Where an injunction is sought, as a part of the final relief, it is necessary for the complaint to set fin-th all the facts upon which the right to it depends, and any other facts which bear upon the particular reUef sought, although they may not be abso- lutely essential to, or decisive of, the right of action. (Yau-Saut. Eq. Pr. 96; Minor v. Terry, 6 How. Pr. 208 ; Howard v. Tiffany, i Saudf. 695.) And as costs, in equi- table actions, are in the discretion of the court, and may be awarded as part of the plaintiff's final relief, it is proper to state, in the complaint, facts which may be proved (m the trial as bearing upon that subject, (lb.) The Code (of Kentucky) does not authorize a recovery on any state of facts which, before its adoption, did not authorize a recovery in some form of action; and there- fore former precedents, rules and adjudications may be resorted to as authoritative, except so far as they relate to the distinctions between the different forms of actions, or to formal and merely technical allegations. ( Wintersmith v. Barrett, 14 B Mon- roe, 84.) It has been decided, in Indiana, that a complaint for an injury suffered by a pas- senger from the negligence of a Rail Road Company, should contain an allegation that the plaintiff did not contribute to the injury. (Jeffersonville B. B. Co. v. Hen- drick's Admrs. 26 lud. 228 ; Toledo, fc, B. B'. Co. v. Bevin, id. 443.) But it has been held, in Wisconsin, that it is enough for the complaint, in such a case, to allege feat the injury happened through the negligsuce of the defendant, without alleging 52 Chiip. I.] PROCEEDINGS TO A DECREE. 39 omitted, the defendant may apply to the court and obtain an order that the complainant give security for costs, [g) {g) Howe v. Harvey, 8 Paige, 73. also that the plaintiff was free from neglisence, on his part (Potter v. Chicago, cjc, B. E. Co., 20 Wis. 5.33.) ' " If the time when a fact happened is material to constitute the cause of action, it should be stated. The fact, "without the time, would be insufficient to constitute the cause of action ; but if the time is immatedal, a demurrer will not lie for omitting to state it. {People v. Ryder, 12 N. T. 437.) An allegation that the plaintiff ''alter- wards, to wit," on a day specified, paid certain monies, does not preclude him from showing that the payment was made at an earlier day, for the purpose of claim- ing interest. The allegation of time, in such a case, is immaterial. {Lijon v. Clark, 8 St. T. 748; lister v. Jewett, 11 id. 460.) Where the time stated under a videlicet is incousistent with the previous allegation, it should be rejected as surplusage. {Lester v. Jewett, 11 N". Y. 460.) "Where the time of making a contract is material and essential to the plaintiff's cau^ic of action, and is pi'esumptively within his know- ledge, it ought to be alleged positively and with precision. It is not sufficient to allege that it was "on or about" a certaiu day. (Lockwood v. Bigelow, 11 Minu. 113. In Lane v. Tlielwell, (3 Cr. M. & R. 140,) a declaration for goods sold, &c., which did not allege the time of the sale, was held sufficient, on special demuiTcr. So as to a declaration making profert of letters testameutarv, but omitting the date when the letters were granted. (^Hughes v. Williams, 2 Cr. M. & R. 331.) The day on which it is alleged, in a declaration in trespass for mesne profits, that the plain- tiff was ejected, and that on which possession was recovered by him, are not mate- rial. {Ive V. Scott, 9 Dowl. P. C. 9^3.) By not material is meant, that it may be departed from, in evidence ; but allegations in respect to time, like all other allega- tioas, are evidence again.st the party making them, as Ms admissi(ms. {Andrews V. Chadbourne, 19 Barb. 149.) The plaintiff may allege any time after the debt accrned, and give evidence of the true time. (Moffet v. Saelcett, 18 KT. Y. 52-i ; Farroii v. Sherwood, 17 id. 227.) If the time of performance is not stated, the law imports a reasonable time thereafter. {Fickett v. Price, 22 How. Pr. 194.) When the i^lace where an event occurred is material to be alleged, and the plead- ing is ambiguous, in that respect, the presumption is against the pleader. {Beach v. The Bay State Company, 10 Ab. 71. ) Thus, where a statute giving a remedy for a wrongful aet does not extend to acts done out of the State, a complaint, under the statute must allege that the act complained of occurred within the State of Xew York, (,1b.) So where a party seeks to enforce, in the courts of this State, a eon- tract which, by its laws, is forbidden and declared void, he must aver and prove where it was made, and that by the laws of that place it was authoiized and valid. {Thatcher v. Morris, 11 N". Y. 437.) It is a general rule of pleading that if the mat- ters alleged are local in their nature, the tmth of the venue is material, and of the substance of the issue. And if it appears upon the face of the pleading that the venue is untrue, it is a defect which may be taken advantage of by demurrer. {Vermilya v. Beaty, 6 Barb. 429.) Where. one party agrees to sell and deliver goods at a particular place, and the other agrees to receive and pay for them, an averment, by the purchaser, of a readiness and wUHngness to receive and pay at tliat j)lace, in case he sues for a non-delivery, is indispensably necessary to a good com- plaint. But the omission to make this averment is a defect which is cured by a ver- dict. {Clark V. Dales, 20 Barb. 42.) Whenever special damages are recovered, it must be on a distinct and definite statement in the complaint. {Low v. Archer, 12 N". Y. '282.] General damages are such as necessarily result from the injury complained of, and may be recovered -srith- out any special averment in the complaint. But such damages as are the natural, but not the necessary result of the injury, are special, and must be averred in the complaint. Therefore, where, in an action for the breach of a contract, certain spe- cial damages were alleged and proved, but there was no proof of general damage, it was held that it was erroneous to charge the jury that, besides the special damage proved, they might give such general damages as they considered naturally resulted from the injmy. ( Vanderslice v. Newton, 4 K. Y. 130. ] Where a pleading alleges the existence of an agreement, which would be void if not in wi-iting, within the statute of frauds, it should be treated, in pleading, like any other fact, and assumed to be true unless controverted by the adverse party. That is. it is not essential that the. pleading should show affirmatively that the agreement was in writing. It wiU be assumed to be an agreement having a legal existence. If, 53 39 FROCF.KDIXGS TO A DECREE. [Book 1. Must state a case within tlic jurisdiction of the court.^ It must also on an issue upon such an agreemQut. stated in the complaint, the party does ni.t pnive his allegation by produeiug written evidence of the agreement, he must fail, not for want of sufficient allegations to sustain his action, but for want of sufficient e\idenee to sustain such allegations. {Livingston v. Smith, 14 How. Pr. 49U.) In an action fvr false and fraudulent representations, the complaint must state what the representations were, that the court may judge if they were sufficient to mislead ; otherwise the plaintift' does not show a cause of action. It should also state that they were made with intent to deceive and defraud the. plaintiff, ( Wells V. Jewett, 11 How. Pr. d42,) and were untrue when made. (Bell v Mali, 11 How. Pr. 254.) If it is claimed that a contract or act is void fbr/raMrf,the facts constituting the fraud should be alleged. (MeMiirrai/ \. Thomas, 5 How. Pr. 14; Wells y . Jewett, 11 id. 242; Fish v. Freclenhall, 21 Barb. 81.) If no charge of fraiud is made in the complaint, the plaintiff cannot avail himself of evidence tending to prove a transac- tion fraudulent. ((Jhautaiique Counti/ Bank v. White, 6 H". T. 236.) In an action to overhaul a sale of corporate property, alleged to have lieen pi'oonred by the de- fendants through the appointment of a receiver, and his collnsively acting in their interest, the complaint should allege the specific manner in which the fraud was per- petrated, or agreed to be perpetrated, so as to enable the defendant to take issue upon it. A general allegation of a fraudulent or coiTupt agreement injurious to the plaintiff, is not sufficient on demurrer. {Libbij v. Bosekrarts, .55 Barb. 202.) Where the gist of a cause of action is fraud, while it is not necessary or proper for the plaintiff to spread out, in his pleading, the evidence on which he relies, he must, nevertheless, aver fuUy and explicitly the facts constituting the alleged fraud. Mere conclusions will not avail. (Butler v. Viele, 44 Barb. 16S.) The ccmiplaiut, in an action for deceit or fraud in the purchase and sale of property, induced or pi-ocured by false representations, must in substance state the representations, and aver their fal- sity, and that they were made with intent to deceive the plaintiff, and induce him to make the purchase or trade in question, and that they did induce such trade to the plaintiff's injury. {Barber v. Morgan, 51 Barb. 110.) Where, in such an action, there was nothing in the first count of the complaint which amounted to an allega- tion or averment that the defendant made the representations to induce the plaintiff to make the purchase of the property, or with intent to defraud or deceive him, it was held, on demurrer, that the count was defective in these particulars. (lb.) Although the forms of pleading previously in use are not now applicable, particu- larly to the description of actiims, yet the manner of stating the claim or defence, as required by the Code, with that exception, and that of certain formal parts still re- mains. (Boijce V. Brown, 7 Barb. 80.) The pleader may use his own language, but the pleading must contain the necessary matter, and it must be stated in an issuable and intelligible form, capable of trial. Facts must still be set forth according to their legal effect and operation, and not the mere evidence of those facts, nor arguments, nor inferences, nor matter of law only, nor should pleadings be hypothetical, nor in the alternative, nor destitute of truth and certainty. (Ibid.) The facts should l>e set forth in a plain, direct, definite, certain and traversable uianner, according to their legal effect. Any number of facts constituting one cause of action may be combined, but each cause of action should be separately stated and numbered so as to be capa- ble of trial, ([bid. Blanchard v. Strait, 8 How. Pr. 83; Kule 19, Supreme Court.) A failure to comply with this rale subjects every allegation not essential to a single cause of action to be stricken out as redundant; (Benedict v. Seymour, 6 How. Pr. 298) or the opposite party may move to have the pleading made more definite and certain ; ( Wood v. Anthony, 9 How. Pr. 78 ; Colton v. Jones, 7 Rob. 164,) or perhaps, have the pleading set aside for irregularity. (Blanchard v. Straight, 8 flow. Pr. 8.j.) He cannot demtu". (Burr v. Comstock, 38 N. T. 21 ; 36 How. Pr. 382.) There is no particular mode in which separate causes of action are to be separated and distinguished from each other. Any mode which apprises the defendant of what is intended is sufficient. (Hall v. McKechine, 22 Barb. 244.) A plaintili' will not bu allowed to state a single cause of action in his complaint in several diiierent counts (Fern v. Vanderbilt, 13 Abb. 72.) In actions given by statute, or upon any special statutory provision, the complaint should follow the wi >rding of the statute, and refer to the statute by its title. (Sch raip- pelY. Corning, 2 S. Y. 132.) In pleading a statute, the form and manner of its pas- sage need not be stated. (People v. Supervisors of Chenango, 8 N. T. 317.) lu pleading a public statute (as the statute of frauds,) it is not necessary to refer to it, but it is sufficient to set forth the facts which bring the case within it. Under the 54 Chap. 1.] PROCEEDINGS TO A DECREE. 39 Code, an express reference to the statute would purliap=!, be redundant. {Goelet v. Coiodrey, 1 Duer. 132; Brown v. Harmon, 21 Barb. 5Ud.) It i.s necessary to state all the facts constituting the cause of action under it; and if the statute be recent, the cause of action should be laid as of a time subsequent to its taking effect. (Brown v. Harmon, supra.) A plaintiff need not insist on his right^^ under a statute, or draw any legal conclusions. (Height v. Child, 34 Barb. 18(5.) When there ia au exception in the enacting clause of a statute, a plaintiff suing under it must shovt that the defendant is not within the exception ; but an exception in a subsequent clause is a matter of defence, and must be shown by the defendant, to exempt him- self from the penalty. (Great Western liailroad Coinpauy v. Hanks, SQ 111. 281.) Where a statute has chanj^ed a form of action as it existed at common law, a com- plaint (petition) containing a statement of facts showing a right ou the part of the plaintiff to reoov'er, will be sufficient, without bringing it within, any one of the forms of action of the common law. (Ahem v. Collins, 39 Mo. 145.) When the plaintiff' re- lies, to maintain his action, on the statute laws of another State, he must aver those laws in his pleadings in the same manner as other facts are required to be averred. A general averment that by the laws of such other State, such a conclusion results, as for example, that by the laws of that State certain specified trusts are valid, is not permissible. (Throop x. Hatch, 3 Abb. 85. See Phinneij v. Fhinney, 17 How. Pr. 1 97 ; Ford v. Babcock, 2 Sandford, 523 ; Cole v. Jessup, 10 How. Pr. 524.) It is suffi- cient in a pleading to aver generally that a contract sought to be enforced is in viola- tion of some municipal ordinance or enactment, when such ordinance or enactment is founded upon a statute. It is not necessary to plead the statute specially. (Be- maii V. Tugaot, 5 Sandford, 153.) A statute which is private or local in many of its provisions, may contain a section which is of a public or general character, in which case the court will take Judicial notice of such secticm, without its being pleaded. (Bretz V. The Mayor, fc., of New York, 4 Ab., JT. S. 258.) The Code (sec. 1G3) provides that in pleading a. private statute, or a right derived therefrom, it shall be sufficient to refer to such statute by its title and the day of its passage, and the court shall thereupon take judicial notice thereof. Public statutes the courts are bound to notice. But a, private or local statute must be set out, or refeiTed to in the pleadings; if it is not, the court will not regard it. (BreteY. The Mayor, #c., of New York, 4 Ab., K S. 2,59.) A complaint need not allege that the plaintiff has a legal capacity to sue. (Phcenix Bank v. Domiell, 41 Barb. 571 ; S. 0. aff'd. 40 N". T. 410.) It the facts stated in it are sufficient to sustain the judgment against a defendant in one capacity, it is suffi- cient, although the pleader evidently contemplated that the defendant was liable iu another capacity. (Wright y. Hooper, 10 N"ew York, 51.) A complaint is not de- fective in substance because it omits to state conclusions which are to be implied from other facts which are sufficiently stated therein. (Case v. Carrol, 35 ifew York, 385.) If it contain allegations which under any reasonable view of them constitute a cause of. action, although informal, it should not be dismissed. (Simmons v. Eldridge, 29 How. Pr. 309.) It is not necessary or proper fcu' the plaintiff to setup in his complaint facts which he relies on to avoid an anticipated defence. (Sands v. St John, 3o Barb. 6.48 ; S. C. 23 How. Pr. 140 ; Van Demark v. Van Demarlc, 13 How. Pr. 372 ; Butler v. Mann, 16 id. 546 ; S. 0. 5 Ab. 40 ; Williams v. Tilt, 36 Ifew York, 319.) Yet it was held in Biaehett v. Wilkinson, (13 How. Pr. 102) that a plaintiff' may in his complaint state facts connected with the cause of action which avoid au anticipated defence, as for c-sample, that he had been induced by false representations to receive in payment a worthless check. (See also Wade v. Rusher, 4 Bosw. 537.) When an account is alleged in a complaint, it is not necessary to set forth the items ; but the plaintiff' is obliged to deliver to the defendant a copy of the account within ten days after a demand thereof in writing, (Code, § 158) and if the account furnished is defective, a " further account" may be ordered. (li.) The Code (J 144) specifies, the causes of demurrer to a complaint. Among these causes is, that it appears on the face thereof that it does not state facts sufficient to constitute a cause of action. (Suhd. 6.) The complaint to be overthrown by a demurrer under this subdivision, must pre- sent defects so substantial that taking all the facts to be admitted, they furnish no cause of action whatever. (The People v. Mayor, ^-c, of New York, 8 Abb.,) or no cause of action against the defendant demuiTing. (Sinclair v. Fitch, i B. D. Smith, 677; lUchards v. Edick, 17 Barb. 260; Graham v. Camman, 5 Duer. 697 ; Hammond v. Hudson River Iron cf Machine Company, 20 Barb. 386 ; Bank ofLowville V. Edwards, 11 How. Pr. 218; HillmanY. Hillman, 14 id. 456; and see Richards v. licufis, 28 English Law and Equity 157.) 55 39 PEOCEEDINOS TO A DECREE. [Book I. state a case within the appropriate jurisdiction of a court of equity. {t>) If it fails in this respect, the error is fatal in every stage of the cause, Tt is entirely optional with a defendant whether he will demur or not, for the cause stated in the tith subdivision, and his eleotioi*pot to avail himself of that right does not preclude himself from taking advantage of the defect in the complaint at any stage of the ease. ( Gould v. G-lass, 19 Barb. 186 ; Montgomery County Bank v. Albany City Bank, 7 Kew York, 464 ; Ififfffina v. Freeman, 2 Duer. 650 ; Budd v. Bingham, 18 Barb. 494 ; Gray \. Palmer, 3 Rob. 500.) If two persons are made defendants, and the complaint does not state facts, sufficient to constitute a cause of action against one of them, and there is no demuiTer, the objection may be made upon the trial and the complaint be dismissed as to such defendant. {Montgomery County Bank v. Albany City Bank. 7 jSTew York, 464.) Upon a demurrer under this subdivision, the defendant cannot object that there is an improper joinder of par-ties. {Mann v. Marsh, 35 Barb. 68 ; Walrath v. Handy, Hi How. Pr. 353 ; Eldridge v. Bell, Xi id. 547) or that the plaintiff' had not legal capacity to sue ; ( Viburt v. Frost, 3 Abb. 120 ; Sobart v. Frost, 5 Duer. 671 ; Phoenix Bank v. Donnell, 40 Xew Yoxk, 411 ; Fulton Fire Insurance Company v. Baldwin, 37 id. 648) or that the court has no jurisdiction ; (mison V. Mayor, fo.,ofNew York, 6 Abb. 6; Hotahkiss v. Elting, 36 Barb. 39) or that the complaint shows the right to sue is in a third person not a party ; (Myers V. Machado, 6 Abb. 198) or that the complaint by a corporation does not show it.^ authority to sue. Bank of Lowville v. Edwards, li How. Pr. 216 ; Bank of Havana V. JVickham, 7 Abb. 134) or that the prayer for relief is too extensive. {The Peojile V. Mayor, cf-c, of New York. 8 Abb. 19; 4 E. D. Smith, 706 n.; Lord v. Vreeland, 24 How. Pr. 316; 13 Abb. 195.) See further as to demui-rer to complaint. Post. chap. vi. sec. 3 and notes. (5.) Jurisdiction. By the constitution of the State of New York, which went into effect on the 1st day of January, 1847, the office of chancellor was abolished, from and after the hrst Monday of July, 1847; at which time the Court of Chancery ceased to have a separate existence, and its powers and functions were transferred to a Supreme Court, having general jurisdiction in law and equity. (Const. Art. 6, $ 3 ; Ai't. 14, J 8.) '' Art. 6 of the constitution of 1867-8 (the only portion of said constitution which was adopted) also provides that " there shall be an existing Supreme Court, with general jurisdiction in law and equity, snl)ject to such appellate jurisdiotion of the Court of Appeals as now is or may be prescribed by law." (See. 6.) The justices of the Supreme Court are to be chosen by the electors of their respective judicial districts. (Sec. 13.) It has been decided that the Supreme Court is a court of general jurisdiction ; and that every intendment is in favor of its jurisdiotion. {Bangs y. Mcintosh, 2^ Barb. 601; Foot\. Stevens, 17 "Wend. 483; 9 John. 437.) Tt has all the powers of tiie Supreme Court, aud the former Court of Chancery. {Onderdonk v. Mott, 34 Barb. 106; Mi/ers v. Bashack, 4 How. Pr. 83; Const. Art. vi., ^3-6; 2 E. S. 259, § 1 ; 234, § 60 ; Laws of 1847, p. 323, § 16 ; Laws of 1848, p. 282; Laws of 1849, p. -27 ; Id. pp. 117, 150; Laws of 1850, pp. 9, 20; Laws of 1851, p. 308; Laws of 1852, p. 591; Laws of 1853, p. 526.) When the Code of Procedure became a law, the Supreme Court lost none of its chancery jmisdiction. Although the distinction be- tween actious at law and suits in equity was abolished, yet the suit in equity survived in the form of a " civil action," prosecuted by summons and complaint. The old suit in equity for the partition of lands, may now be prosecuted in the form of a civil action, under the Code, in the same manner as every other suit of equity cognizance. {Myers v. Rasback, 4 How. Pr. 83, 84.) The court may decree the cancellation of a void mortgage which is a cloud on property out of the state. ( Williams v. Ayrault, 37 N". Y. 444.) It may determine the validity of an actual or alleged devise or will of real estate. (Laws of 1853 p. 526;) aud may vacate the entry of satisfaction of a final decree of the Court of Chancery, entered prior to 1846. It has power to au- thorize the leasing or sale and conveyance of the real estate of benevolent, chari- table, scientific or missionary societies, or orphan asylums. CLaws of 1861, ch. 58.) And it has power to exercise such coutrol^over every proceeding in it as to protect every person iiiterestel from injustice and fraud ; and will not allow itself to be made the instrument of wrong. {Lowber v. Mayor, &c., of New York, 26 Barb. 2>>2 ; Barton v. Butts, M How. 456.) The whole power of the court to order the sale of the lands of iufants is derived from the statute. {Onderdonk v. Mott, 34 Barb. lOo.) An application to sell the real estate oi a religious oorpii.'atiou may bo made to thu 56 Chap. 1.] PSOCEEDIXGS TO A DECREE. 39 and cannot be cured by any waiver or course of proceedings by the par- ties; for consent cannot confer a jurisdiction nob vested by law. (7t) (ft) story's Eq. PI. 8 ; Mitf. 141. Supreme Court, ( Wi/att v. Benson, 23 Barb. 327 ; 4 Ab. 182.) The vestry or trustees of a religious corporation may apply to the court for aa order to mortgage or sell its real estate, \rithout aay express .vote of the corporation, where the good faith and propiiety of the application are unquestioned. (Matter of St. Ann's Oliurch, 14 Ab. 424 : 23 How. Pr. 285.) As to the power of the coiiL-t over the real estate of rvili- gious corporations, see Madison Acenue Baptist Church v. Baptist Church, 19 Ab. 105 ; 2 Ab., JJ". S. 254 ; 3 Eob. 570 ; 5 id. 649 ; St Janes' Church v. Church of the Re- deemer. 45 Baib. 356 ; 11 X. T. 243 ; 20 How. Pr. 324.) In proceedings by attachment the Supreme Court aoquii'es jmisdiotion from the time ot the allowance of the attachment. {Barkhardt v. Sandford, 7 How. Pr. 329.; In respect to the equity jurisdiction of the Superior Court of the City of ]!^ew York: and of the Court of Common I'luin;. for r,j\e Cit}/ and Counttj of New York, section 33 of the Code declares tbut f.hs jurisdiotion of those courts shall extend to the ac- tions enumerated in sections 123 and 124. vvhen the cause of action shall have arisen, or the subject of the action sh.'ili be ,sii,uated in that city, and " to all otlier actions, where all the defendants shali reside, or are personally served with the summons " within the city and county of !N"ew York. It was accordingly held, in Forrest v. Forrest, 6 Daer. 102,) that the Superior Court had jurisdiction of an action for divorce, by reason of an adultery committed in this state, when the parties were in- habitants of the state, and residing in it when the offence was committed, and con- tinued to reside iu it up to the time of suit brought, and the defendant then resided in that city. The court there said that if the proceeding to obtain a divorce was an "action," within the meaning of that word, as used in the Code, there could be no doubt that the court had jurisdiction. (See also Maloor v. McCabe, 16 Ab. 319.) In Boweny. The Irish Presbyterian Congregation, (ti Bosw. 234,) the court said : " The question of jurisdiction, in so far as it depends upon the inquiry whether this court has a general jurisdiction in equity eases, is not, iu this court, open to discus- sion. It was considered in the case of Forrest v. Forrest, 6 Duer. 114.) Such juris- diction was long before that time asserted and expressed. It has constantly since been exercised. Numerous cases in equity, originating iu this court, have been con- sidered in the court of last resort, and the repeated affirmance of the judgments of this court, in such oases suggests that no serious doubt on this subject exists." (Citing 5 Seld. 253; 15 X. T. .587 ; 16 id. 12; id. 392; 17 id. 9; 18 id. 481; 19 id. 208, 499.) See also Mclvor v. McCabe, 16 Ab. 319. It was held, in that case, that a suit to compel the specific performance of a con- tract was within the ordinary jurisdiction of a court of equity. In all actions except those mentioned in sections 123 & 124 of the Code, where there is only a single defendant, he must, to give the Superior Court, or Court of Com- mon Pleas jurisdiction, reside in the City of New York, or be served with- the sum- mcms therein. (Kerr v. Mount, 28 IST. Y. 659; see Zerega v. Bonoist, 7 Ri)b. 199 ; 33 How. Pr. 129.) These courts have jurisdiction to compel an executor to account. {Christy v. Libbi/, 35 How. 119.) And they have the same powers to compel a dis- covery by the parties to a suit pending therein, which are cimferred by the revised statutes on the Supreme Court. (Gould v. McCarthy, 11 JT. Y. 575.) It is not essential that the complaint should show a statement of facts from which it will be apparent that the court has jurisdiction. (Van Sant. Bq. Pr. 185; Koenig V. Mott, 8 Ab, 304 ; Spencer v. Sogers' Locomotive Works, 17 id. 110.) It is only where it appears on the face of the complaint that the court has no juris- diction of the person of the defendant, or the subject of the action, that a demurrer will be allowed. (Code, § 144.) This has been expressly decided ; and further, that on a demun-er specifying for cause, that the complaint doe.s not state facts sufficient to constitute a cause of action, the question that the coiut has not jurisdiction of the subject of the action, cannot bo raised. ( Wilson, v. Mayor, ^c, of New York, 6 Abb. 6.) An objection of this description must be fully made out, and no presumption will be indulged against the jurisdiction of an inferior tribunal, where enough is shown to bring the case within the general language of the statute conferring jurisdiction. (Foster v. Hasen. 12 Barb. 547.) But though the want of jurisdiction he not raised, either by demuiTer or answer, yet whenever such want of jurisdiction appears, in any 57 39 PROCEEDINQS rO A DECREE. [Book I. And the case stated in the bill must not only be of a nature properly within the cognizance of a court of equity, but the amount claimed subsequent stage of the suit, the question may be raised, and judgment, if entered, \x'\\\ be set aside. {Valerino v. Thompson, 7 S. T. 576.) If the defendant, in a court of equity, take an objection, in his answer, on the ground of jurisdictiou, he must ask to hare the benefit uf the defence, as if he had demurred. (Ketchum v. Baiohs, 2 T. T. Leg. Obs. 384.) Where au action is brought in the Nbw York Superior Court, the complaint need not aver facts independent of the cause ot action, the existence of which is, in cer tain cases, necessary to confer jurisdiction, such as the residence of the plaintitf. (Spencer V. The Rogers' Locomoiioe Works. 17 Abb. 210; S. C. 8 Bosw. 612.) And if the complaint, in an action upon a note which it alleges was payable in 'Saw York city, and is in an action against a foreign corporation, a cause of action will be stated which is within the jurisdiction of the court, although the plaintiff is a non-resident. (Jb.) In a suit brought iu a county court, where civil jurisdiction is limited to a cer- tain sum, the complaint need not specially allege the jurisdiction of the court, if the amount claimed therein does not exceed that sum. (Meshke v. Van Doren, 16 Wis. 319.) The rule is well settled that a tax-payer, as a general rule, cannot maintain an in- junction suit to restrain the collection of an alleged illegal tax; especially where he has a perfect remedy at law. {Thurston v. The City of Elmira, 10 Abb. S". S. 119.) The court, in the proper exercise of its equity power, does not review and coiTcct the errors of subordinate tribunals. {lb.) The Code {sec. 144, sub. 1,) provides that the defendant may demur to the com- plaint, when it shall appear upon the face thereof that the court has no jurisdiction of the person of the defendant, or the subject of the action. It has been decided that the meaning of this provision is, that the person of the defendant is not subject to the jurisdiction of the court; not that original process has been improperly served. (Nones V. Hope Mutual Ins. Co. -5 How. Pr. 96.) "Where a court of equity takes jurisdiction for one purpose, it -will retain it in order to do complete justice between the parties. (Prescott v. .Everts, 4 Wis. 314.) The cou]-t which first acquires jurisdiction will retain the writ for a final determi- nation of the rignts of the parties ; and, if the ends of justice require it, will restrain the parties from suing or proceeding elsewhere. {Alcerly v. Vilas, 15 Wis. 401.) To be entitled to the assistance of a court of equity, the partv applying must show that he is in danger of losing a substantial right, and that he is in no fault. ( Warden V. Sups, of Fond dio Lac Co. 14 Wis. 618.) He must .show that clear, positive rea- sons for relief do exist, not merely that they may possibly exist. (Converse v Eetchum, 18 Wis. 202.) .- r .r v The facts necessary to give the court jurisdiction must be clearly set forth in the bill; and a bill by a judgment creditor, before execution, to set aside a fraudulent transfer of property, by the debtor, between the commencement of the suit an(i the rendition of judgment, must show clearly that the judgment might have beet enforced at law, against the property iu question, but for the act comnlained of (ilcElwain v. Willis, 9 Wend. 548.) The Code provides (§ 139) that from the time of the service of the summons in a civil actum, or the allowance of a provisional remedy, the court shall be deemed to have acquired jurisdicdon, and to have control of all the subsequent proceedino-s And that a voluntary appearance of a defendant shall be equivalent to personal ser- vice of the summons upon him. It is settled by decisions, also, that in every case a voluntary appearance by the defendant (even without any sei-vice of summons ) •'ives the court jurisdiction of the person. {Watf,on v. The Cabot Bank 5 Sandf 423 ■ See Harriott v. New Jersey M. M. Co. 2 Hilton, 262; 8 Ab. 284 ; Smith v Dine'er 2 Code Eep. 70.) ■ i' > Although the Court has no jurisdiction of a suit against a foreign corporation such corporation may conl'er jurisdiction Iiy appearing and answering, -without obiectin"' to the jurisdiction. {Paulding^ v. Hudson Manuf. Co. 2 E. D. Smith 38 ) ° Every court is primarily the judge of its own jurisdictional powers,' and mav as- sume them m the exercise of a sound discretion, in all cases; subject only to cor- rection by an appellate court. {Mclvor Y. McCabe, IQ A.h. Z2'6.) Since the Code, there is no distinction between suits at law and suits in equitv as respects the jurisdiction of the court. {The General Mutual Ins Co \ Be'iison 5 Duer. 168.) When the safficiency of a complaint is denied, as not statiu)de Rep., IJ". S. 319; McKenzie v. L'Am'ireaux, 11 Barb. .576; Rooseoelt v. Varnum. 12 How. Pr. 439; Wood V. Draper, 4 Abb. 322; 24 Barb. 187; Kirk v. Young, 2 Abb. 453; Towner v. Tooley, 33 Barb. 598.) Section 119 of the Code does not apply to a case where the right to assert or protect which the suit is brought, is not one which exists against all, or the obligation which it is sought to enforce is not common to all. (Reed v. The Eoergreens, 21 How. 319.) .Although the number of the plaintiffs be thirty-five, yet it is still practicable foi them to appear, though inconvenient, and they should appear in their individual and real names. (Kirk v. Young, 2 Ab. 453; SaiiehtY. Pemberton, 4 Sand. 657 ; Coev. Beck- with, 10 Ab. 296; S. 0. 31 Barb. 339 ; 19 How. 398.) When creditors seeking to set aside an assignment are so numerous as to make their appearance impracticable, an action maybe brought by preferred creditors, iu behalf of themselves and the rest. (Brooks v. Peck, 33 Barb. 519.) A dissatisfied creditor may bring his action alone, to set aside an assignment. He need not sue for the benefit of himself and the other creditors. {Greene v. Break, 32 Barb. 73.) An action by a tax-payer to restrain the imposition of an illegal tax, must be brought in behalf of himself and of all others similarly situated. ( Wood v. Draper, 4 Abb. 322 ; S. C 24 Barb. 187.) Yet in a later case (Thurston v. The City ofElmira, 10 Abb., K. S. 119,) it was held that a party against whom a local assessment has been imposed cannot join with himself all other persons, against whom similar a.) Where, alter a vendor of real estate has ciraveyed it with covenants for title and warranty, a mortgage is discovered unsatisfied of record, but which the vendor insists is .satiaiied, the purchaser of the land may in an action to have the mortgage satisfied of record, join his vendor and the holder of the mortgage as defendants. ( Wandle v. Turneij, 5 Drier. 631.) In Chapman v. Draper, (10 How. Pr. 357,) — an action for the specitio p:-rformance of a contract to convey land, part of a tract owned by one of the de- Icudants, and upon which he had given mortgages prior to the contract to sell — it wa-i held that the prior mortgagees were improperly made parties defendants. Wliere goods have been obtained hj fraud, and the purchaser has assigned them in trust for the benefit of creditors, an action may be maintained against such purchaser and his assignee to recover said goods. {Jessop v. Miller, 1 JTeyes, 'ill.) "Where a. principal and surety are liable on the same instrument, they may be sued jiiiutly in one action. {Carman v. Plass, 23 S". Y. 286 ; LeUoy v. Shaw, 2 Duer. 626.) If the hahility arises on different instruments, although on the same paper, they can- not be sued jointly. {Ih.; De Bidder V. Schermerhorn, 10 Barb 638; Allen v. Fos- ijate, 11 How. Pr. 218.) Tlie Code (^ 120) provides Vnni persons severally liahle upon the same obligation or insLruiiier.i. including the parties to bills of exchange and promissori/ notes, may all, or any of t!ic-;m, be included in the same action at the option of the plaintiff, Tlie L-oiilract of indorsers is independent and distinct from that of the makers ; and altlniugli llie statute gives the right of action against all parties to the note, in a single suit, it preserves the relations of the parties, and does not malce them joint debtors. {Fanners' Bank of Amsterdam v. Blair, 44 Barb. 642 ; Kelseij v. Bradbury, 21 id. 531.) Although the several parties to a bill or note may be sued in one action, yet their oeing so sued does not make them jointly liable, {Alfred y.lVatkins, 1 Code R., 'S. S. 343,) or joint debtors, {Kelsey v. Bradbury, 21 Barb. 531 ; Farmers' Bank v. Blair, 44 id. 642.)' An action may be brought against the maker and the indorser of a promissory note, although the maker is solvent; but separate judgments must be en- tered. {Churchill V. Trapip, 3 Abb. 360.) An action by a subsequent indorser against prira- indorsers, to recover the amount he has been compelled to pay in a suit brought upon the note, is an action for money paid for the use of the defendants, and riot an action on the note, and therefore such an action cannot be maintained. {Barker v. Cassidy, 16 Barb. 167.) Where a promissory note had a guaranty written upon it, the court held that the maker of the note and the guarantor could not be in- cluded in the same action. {Carman v. Plass, 23 iJ". T. 286 ; Phalen v. Dingee, 4 B. D. Smith, 379 ; Brewster v. Silence, 8 F. T. 214.) The fact that certain parties iu interest are numerous and unknown is a sufficient excuse for not joining them as defendants. {Coe v. Beclwith, 10 Abb. 293.) The rale that persons only severally and not jointly liable cannot be joined as defendants has not, as a general rule, been altered by the Code ; the only exceptions are those prescribed by section 120. jSTo exception is created by section 167. {Le Boy v. Shaw, a Duer. 623.) Persons haviug adverse or conflicting interests in relation to the sub- ject matter of the litigation, ought not to be joined. {Grant v. Van Schoonhoven, 9 Paige, 255.) But where the right is common, but there is a question as to its euf(U'ce- meut, that does not constitute a conflicting interest. {Brooks v. Beck. 38 Barb. 519 ; see Bishop v. Edmiston, 16 Abb. 466.) One may not prosecute or defend "for the bL'uefit of the whole" where the right to be enforced is not common to all. {Beid v. The Evergreens, 21 How. Pr. 319.) In Kirk v. Young, (2 Abb. 453,) it was held that the fact of the parties being thirty-five in number, was not an excuse for one suing iu behalf of all. It is the right of a party who is sued, to require that any other person jointly lia- ble with him shall be made a co-defendant. ( Wooster v. Chamberlin, 28 Barb. 602 ; J'an Name v. Fan Name, 23 How. Pr. 253.) But where joint debtors reside in dif- ferent States, they may be sued separately in the States having jurisdiction of their respective persons or property. (Brown v. Birdsall, 29 Barb. 549.) 71 4Q PKOCEEDTNaS TO A DECRJIE. [Book I. The executor or administrator of a deceased joint debtor or owner of real or per- gonal property cannot be joined in an action witti the survivor for a debt due the joint debtors, or for an injury to their real property. (^Buclmam v. Brett, 22 How. Pr. 233 ; i:5 Abb. 119; 35 i3arb. 598.) , When a married woman is a party, her husband must be joined with her ; except that, 1. Where the action concerns, her .separate property, she may sue alone ; 2. Where the action i.s Ijetween herself and her husband, she may sue or be sued alone. In no case need she prosecute or defend by a guardian or next friend. (Code, § 114.) It is settled, by several decisions under this section, that married women may now Sine and be sued, in all matters relating to their separate estates, in the same manner as /erne sole. {Barton v. Beer, 21 How. Pr. 309 ; 35 Barb. 81 ; Morrell v. Cawlei/, 17 Abb. 76.) In an action against a wife upon a contract relating to her separate estate, her husband should not be joined. {Draper v. Stooenal, 35 K. T. 507; Palmer V. Davis, 28 If. T. 242.) For a debt of the wife contracted before marriage, an at-- tion may be maintained against husband and wife jointly. (Laws of 1853, p. 1057.) Judgment cannot be rendered against the husband in an acticm oouoerning the sepai-ate property of the wife. ( Walker v. Swat/zee, 3 Abb. 136 ; Brownson v. Gif- ford, 8 How. 339; see AcMey v Tarbox, 31 N. T. 564.) In .such eases the husband cannot bo joined. {Smith v. Kearney, 9 How. Pr. 466 ; Swart v. Gomstoclc, 24 Barb. 411.) In an action for necessaries furnished to the wife during covertui-e, she should not bejoinedasa party; the husband alone being liable therefor. Main v. Stephens, 4 B. D. Smith, 86.) If a husband voluntarily abandcras his wife, she may be treated as a fenie sole. The burden of proof will rest upon the party maintaining the right of the wife to at-t as such. {Chapman v. Lemon, 11 How. Pr. 235.) If a married woman, with the consent of her husband, contracts a debt founded on her separate property, the creditor can sue both if he wishes to bind her property, and sue him alone if he seeks to bind him personally. {Smith f. Scribner, 12 How. Pr. nOl.) In an action to charge the separate real estate of a married woman where the plaintiff is entitled to the relief demanded in his complaint, the husband is prop- erly a defendant. {Goelet v. Gori, 31 Barb. 314.) Where the object of an action is to charge legacies upon real estate devised for the payment of the legacies, all the o\vuers of the lands should be made parties de- fendant, so that a decree may be made against them, in case the personal estate of the testator or of the devisee should be insufficient to pay all the legacies. {Towner V. Tooley, 38 Barb. 598.) A receiver appointed for a judgment debtor may sue in his own name to recover usurious premiums paid by tlie debtor, without making the debtor a party to the action. {Paleny. Bnshnell, 18 Abb. 301.) If such receiver sues to set a.jide as fraudulent, contracts made by the debtor, the latter has an inter- est in tlie action, and should be made a party, (id.) When an action is brought by the assignee of a demand, it is not, in general, necessary to make the assignor a party defendant. {Allen v. Smith, 16 N". T. 415.) But the court may order the assigncn- of a claim in suit to be brought in as ■-, part^'. {Freeman v. Newton, 3 B. D. Smith, 246.) 4. Defect of Parties ; How Taken Advantage of. The Code (J 144, sub. 4) allows the defendant to demur to the oomplaiut when it shall appear, upon the face thereof, that there is a defect of parties, plaintiff or de- fendant. Under this subdivision it has been decided that a defect ot parties plaintiff is a good cause of demurrer by all the defendants. {Brownson v. Gifford, 8 How. Pr. 392; Walrath v. Handy, 24 id. 353.) A demurrer is proper only when the ground therefor appears on the face of the complaint. {Getty v. Hudson River B. E. Co. 8 How, Pr. 177; Wilsony. Mayor, &c., of iSiew York, 15 id. 500 ; S. C. 6 Ab. 6; 4 E. D. Smith, 675 ; 1 Ab. 4 ; Coe v. Beckwith, 31 Barb. 339 ; S. C. 19 How. Pr. 398 ; 10 Ab. 296.) In an action for a debt contracted by partners, where a surviving partner and the per- sonal representatives of a deceased partner are joined as defendants, and the fact ap- pears on the face of the complaint, the objection to such joinder must be raised by de- murrer. {Higginsv. Freeman, 2 jynei: 6b0.) If husband and wife sue together fin- a cause of action in the husband alone, it is a defect of parties fin- which a demurrer will be sustained. {Brownson v. Gifford, supra ; Dunderdale v. Grymes, 16 How. Pr. 195. And see Avogardo v. Bull, 4 JG. D. Smith, 384; Bartow v. Draper b Duor. 130.) The defect of parties defendant. for which a demurrei' is allowed, is a deficiency of, and not too many, parties. {Feabody v. Wash. Ma. Ins. Co., 20 Barb. 342; Gregory Chap, l.j PBOCEEDINGS TO A DECREE, 4 f ) V. Oalcsmith, 12 How. Pr. 134 ; Plnektwij x. Wallace. 1 Ab. 82 ; Voorliios v. Baxter, id. 44; Crosby v. Berger, 4 Eclw. Cla. alO ; Ckurohlll v. Trapp, i Abb. 303; Dac^ v. iiem. IH id. 446, n. ; 23 Hon-. Pr. 3Jo; Hart of Saoanav. MoGee, 20 N. T. 3o'J ; AlleriY. City of Buffalo, 3S id. 230; Riohtmijer v. Ulehtmyer, 50 Barb. 55.) Tiie mere joiuder of too mauy defendants is uot a grouad of demurrer by aay one of tiiem against wliom tbe complaint sets forth a good cause of action. {New York cf Sew Haven Eailroad Company v. Schuyler, 17 N. Y. 592 ; S. C. 7 Ab. 41 ; Mannimj v. The State of Niearamja, 14 How. Pr. 517 ; Kolls v. De Leycr, 17 Ab. 312 ; S. 0. 41 Barb. 208 ; 23 How. 46S.) ' To sustain a demurrer under Vau subdivision, for the uou -joinder of a defendant, it must appear that the party demurring has an interest in having such othei' p.i.'ty made a defendant. (Hillman, v. Sillman, 14 How. Pr. 460 ; Newbokl v. Warren, 14 Abb. 80.) An improper joiuder of parties plaintiff is not a subject of demun-er. (Alle)i v. Citi/ of Buffalo, 38 N". T. 280.) So, where a creditor commences an action in hi.-i own behalf against a judgment debtor, the fact that there are other creditors who are not joined as plaintiffs, is not a ground of demui'rer. {Hammond v. Hudson Ulcer Iron Company, 20 Barb. 378.) A demurrer for non-joinder of parties lies where the court cannot determine the oontrt)ver,-iy before it without prejudice to the rights of others, nor by saving their rights. ( Wallace v. Eaton, 5 How. Pr. 99.) Section 122 of the Code is to control, in de- termining whether a demurrer for defect of parties is well taken. (lb.) But a demurrer is not the only method of objecting to a complaint on the grouuil that there is a defect of parties. If the objection does not appear on the face of the complaint, it may be taken in the answer. {Oode, ^ 147.) It is the right of a party who is sued to require that any other person jointly liable with him for the debt, shall be made a co-defendant, and the omission of the plaintiff to sue all the joint contract- ors may be set up in the answer, and is a complete defence to the suit. ( Wooster v. Chamberlain, 28 Barb. 602.) If the relief be equitable in its nature, but cannot properly be granted without the presence of other parties, the objection of a defect of parties must be taken by demuiTer or answer ; and if not so taken, it must be held to be waived. (The General Mutual Insurance Company y. Benson, h Dner. 163.) It cannot be taken on the trial in the form of an objection to the complaint, as not stating facts sufficient to constitute a cause of action. (lb.) If the defendant inte'hds to insist that his liability is joint, and that others who are jointly liable with him should be joined in the action, he mast not only plead the non- joinder, but in so doing, must point c)ut all those who, as he claims, should be made parties defendants. (Fowler y. Kennedy, 2 Abb. 347, 351 ; Wigand v. Sichel, 3 Keyes, 120; 33 How. Pr. 174.) If he fails So properly to plead the non-joinder, he cannot set up such uon-joinder afterwards ; aud if the plaintiff establishes a cause of action, he will be entitled to judgment, even though there are others jointly liable who are not sued. (Ibid.) Yet if the answer setting up such a defence is defective iu not averring that the other joint contractor is still living, the defect may be cured by the proof on the trial. ( Wooster v. Chamberlin, 23 Barb. 602.) After full proof of the answer, and of all the facts essential to sustain the defence, without objection, it is too late to overule the answer on the technical ground that it does not contain the averment that the joint debtor omitted to be joined is still alive. (lb.) ii the answer setting up such a defence is defective, in not averring that the other joint con- tractor is still living, the defect may be cured by the proof on the trial. {Eaton v. Balcom, 33 How. Pr. 80.) Unless it appears on the face of the complaint that the omitted defendant is dead, it will be presumed he is alive ; and a demurrer is proper. (lb.) So if the answer states the residence of the party omitted, his being alivo will be inferred. (Taylor v. Richards, 9 Bosw. 679.) « If husband and wife sue together to recover a debt due to the husband aloue, a demurrer for the improper joinder of parties will be sustained. (Vunderdale v. Grymes, 16 How. Pr. 195; Avogardo v. Ball, 4 B. D. Smith, 384 : Bartow v. Draper, 5 Dner, 160.) To sustain a demurrer on the ground of non-joinder of a defendant it must appear that the parties demurring have an interest in joining such other party. (tlUlman v. Hillman, 14 How. Pr. 456; Newbould v. Warrin, 14 Ab. 80.) As that the party not joined is jointly liable with the one sued. (Wooster v. Chamberlin, 28 Barb. 602.) And when there is a non-joinder of parties defendant, it must appear from the com- plaint that such parties were living when the action was commenced ; otherwise the objection must be taken by answer and not by demurrer. (Scofield v. Van Syckle, 23 How. 97.) Section 122 of the Code, is the controlling section in determining whether a demurrer for defect of parties is well taken. (Wallace \. Eaton, a How. Pr. 9i»: 73 40 FROCEBDINGS TO A DECREE. [Book I. C. 3 Code R. 161.) If the ooart oauuot determine the ooatroversy before it with- t pi-ej adieu to the righti of othei's, of by saving their rights, then a demurrer for ii-iiiltuliJ.r w Willi t.fl.Vftn f f bid ^ out ^.^ _. „„.. „ uou-juiuder is well taken. (Ibid.) 5. Ordering other Parties to bb Brought in. Section 122 of the Code provides that the court may determine any controversy be- tween the parties before it, when it can be done without prejudice to the rights of others or by saving their rights ; but directs that when a complete determination of the controversy cannot be had without the presence of other parties, the comt shall cause them to be brought in. And when in an action for the recovery of real or per sonal property, a person not a party to the action but having an interest in the sub- ject thereof, makes application to the court to be made a party, it may order him to be brought in by proper amendment. Under this section it has been held that the court may determine any controversy between the parties before it; but where each of the defendants merely asks to have the complaint dismissed, no other relief can be gained on appeal. (Garvey v. Jarois, 54 Barb. 179.) When a complete determination of the controversy cannot be had without the presence of other parties, is where there are persons not parties whose rights must be ascertained and settled before the rights of the parties to the suit can be determined. {AIcMalion v. Allen, 12 How. Pr. 39; S. C, Ab. 89; 1 Hilt. 103.) Frequently those who are named parties must be made parties by the service of pro- cess in order properly to determine the controversy. {Powell v. Finch, 5 Duer. 6 jfi.) Section 122 of the Code renders it the imperative duty of the court to bring in addi- tional parties when a complete determination of the controversy cannot otherwise be had. (Shaver Y. Brainard, 29 Barb. 25; Davis v. The Mayor, ^c, of New York, 2 Daer. 6t)3.) The court will not allow the plaintiff to bring in a new party defendant when the presence of such party is the condition of his recovery. Such a proceeding would be equivalent to the commencement of a new action. In such a case the defendant would have the right to ask that other parties be brought in for his protection, but he may waive the right. (MeMahoyi v. Allen, 12 Hov,^ Pr. 39.) In an action against the indin'sers of a promissory note, the court cannot make an order compelling the plaintiff to bring in other parties to the note. (Sawyer v. Cham- bers, 11 Ab. 110.) Tiie court may order non-residents to be made parties. (Sturtevant v. Brewer, 17 How. Pr. 571; S. C. 9 Ab. 414, 4 Bosw. 628.) When the cause stands over to aUow other parties to be brought in, the defendant should not be allowed costs unless he has pleaded the objection. (Mitchell v. Bailey, 3 Mad. Oh. 61.) The court may order the assignor of a claim in suit to be brought in as a party. (Freeman v. Newton, 3 E. D Smith, 246.) 6. Substitution of Parties. The Code (5 122) provides that a defendant against whom an action is pending upon a contract, or for specific, real or personal property, may at any time before answer, upon affidavit that a person not a party to the action, and without collusion with him, makes against him a demand for the same debt or property, upon duo notice to such person and the adverse party, apply to the court for an order to sub- stitute such person in his place, and discharge him from liabiiity to either party on his depositing in court the amount of the debt, or delivering the ]property or its value to such person as the court may direct. And the court may in its discretion make the order. The provision of this section for the substitution of parties is founded on the Eng- lish statute ; aftd the decisions under that statute seem to have settled the rule that it i* only when no other question than the right of property is to be litigated, that an interpleader can be allowed. (Sherman v. PaHridge, 1 Ab. 256 ; S. C. 11 How. Pr. 154 ; 4 Duer. 646.) This is a concurrent remedy with the action of interpleader, but can only be taken advantage of after an action has been commenced. (McKay \: Draper, 27 K T. 256, 260 ; Patterson v. Perry, 14 How. Pr. 505 ; S. C. 6 Duer. 686 ; Beck v. Stephani, 9 How. Pr. 193.) The section provides a summary mode of relief, but introduces no new cause of interpleader. (jCbid ; Fosburgh v. Huntington, ]5Ab. 254.) In an action to recover specific pers(mal property, it is a sufficient objection to an application for substitution, that the property in question cannot be brought Into comt. ( Vosburgh v. Huntington, 15 Ab. Si54.) In McKay v. Draper, (27 N. Y. 2.56,) where money was deposited with a party to be paid on certain conditions, and an ac- tion was brought against such bailee by a third party, the comt said that the proper 74: Cliap. l.J PROCEEDIiXGS TO A DECRKE. 4.() auce of all preliminary acts necessary to complete the complainant's title. ((/) (9) (2) Walbiirn v. Ingilby, 1 Mylne & Keen, 61. way for the bailee to protect liimself, and the person who was entitled to the monoj, was by obtaining an order of substitution under the above section of the Code. lu Fletcher v. Troy Savings Bank, (14 How. Pr. 383) a party deposited money in a savings bank, and then transfeiTed his interest to another. A receiver of the property of the depositor claimed the deposit, and the one to whom it had been transferred, brought an action against the bank, therefor : Seld, that on payment of the money into court, the receiver should be substituted as defendant,' in place of the bank. An action was brought by the assignees of a depositor to recover the deposit, and those who held it were served with an attachment in another action commenced by parties who claimed the fund. Held, a proper case for substitution. (fVilson v. Duncan, 8 Ab. 354.) But where a third party, not in ■privity loith the depositor, claims money which has been deposited in a savings bank, such bank will not bo allowed to implead the adverse claimants. {Lund v. Tlw Seamtn's Bank for Savings, aO How. Pr. 461 ; S. C. 23 id. 258.) A condition of granting an order substitution is, that the applicant has no interest iu the subject of controversy. Hence, an order will not be granted in an action against the consignee of goods, who has sold the same, and holds a balance of the fund in his hands, making a claim for interest, which is contested. (Patterson v. Perry, 14 How. Pr. 505 ; S. C. 6 Duer. 686. See also Wakeman v Dickey, 19 Xh. 24 ; Moore v. Usher, 7 Sim. 384 ; Braddick v. Smith, 9 Bing. 84 ; Mitchell v. Rayne, 2 Sim. and Stu. 63.) The defendants bein^ common earners, certain property placed in their charge for transportation, was claimed by two different parties having distinct and sepai'ate in- terests ; and one brought an action for the recovery of the goods, and the other threatened an action. Seld, that it was a proper case for an order to substitute the latter as defendant. {Schuyler v. Hargous, 3 Rob. 673.) The successful applicant for an order of substitution is entitled to his costs out of the fund in question. {Van Buskirk v. B,oij, 8 How. Pr. 425.) The unsuccessful ap- plicant is liable for costs in all cases, except where special circumstances have induced the coiiit to exercise its discretion iu his favor. {Miller v. De Peyster, 1 Ab. 234, 23,1 ; S. C. 4 Daer. 203 ; Richards v. Salter, 6 John. Ch. 448 ; Mason v. Hamilton, 1 Sim. 19.) Thus, in Miller v. De Peyster, supra, an order was made that the party who \ii\X failed to obtain an order of substitution should pay the costs recovered by the plain- tiff and those of his co-defendent, both in the suit and in an action at law com- menced by him in relation to the same matter. An order of substitution is appealable. ( Wilson v. Duncan. 11 Ab. 3.) (9) A plaintiff' must allege in his bill that he has done, or offered to do, m is ready to do, everything necessary to entitle him to the relief he seeks, or suthcient excuse for its non-performance. {Oliver v. Palmer, 11 Gill and John. 426.) The Code (§ 162) provides that in pleading the performance of conditions pre- cedent in a contract, it shall not be necessary to state the facts showing such per- formance, but it may be stated generally that the party duly performed all the conditions on his part, and if such allegation be controverted, the party pleading shall be bound to establish on the trial the facts showing such performance. It ha-i been decided that the rule established by this section is as applicable to cases relating to negotiable paper as to any other case. {Ferner v. Williams, 37 Barb. 9 ; S. C. 14 Abb. 215.) Secticm 162 of the Code also provides that in an action founded upon an instrument for the payment of money only, it shall be sufficient for the party to give a copy of the instrument, and to state that there is due to him thereon, a specified sum which he claims. It has been held that under this clause of the section, where a note was written in the French language, it might be set out in that language. {Nourny v. Dnbosty, 12 Abb. 128.) Under the same clause, a complaint against the maker of a proniissmy note is sufficient as a pleading where it sets forth a copy of the note, and alleges that a specified sum is due thereon to the plaintiff, althoug-h it was drawn payable to is third person, and there is no allegation in the complaint of an indorsement by him. (Continental BankY. Bramhall. 10 Bosw. 595.) In The Butchers' and Drovers' Bank v. Jacobson, (24 How. Pr. 204 ; S. C. 15 Abb. 2H ; 9 Bosw. 575,) a complaint drawn under this section, alleging an amount due to the plaintiff from the defendants on a written instrument, setting out a oopv of a 40 PnOCEEDINGS TO A DECBEE. [Book 1. Tlie same precision in showing an interest, which is required in set- promissory note signed by the defendants, payable to the ordev of the makers, in- dorsed by thorn in blanlt, and claiming judgment for the amount, was held suificient under the decision in Prindle v. Caruther.i, (15 ST. Y. 425.) In that ease the com- plaint Slated that the defendant made ''his contract in wiiting," and set forth a copy tliereof, in which the defendant, "for value received, promised to pay," but the com- plaint did not aver any consideration for the contract in direct terms. It also stated tliat such contract became the property of the plaintifl' by purchase, without stating when, for whom, or upon what consideration. Held, that these defects were not of such a substantial natm-e as to be available under a ground of demurrer that the com- plaint did not state facts sufficient to constitute a cause of action ; but that the remedy was by motion, to make the faulty pleading more definite and certain. It was also held in that ease, that if the complaint was insufficient as a common law pleading, on the ground that the plaintiff did not make title to the contract, the de- fect was cured by Its setting out a copy thereof under section 162 of the Code. Whichever party seeks to enforce a contract against the other, must show per- formance, or a tender of performance, on his part. (Dunham v. Mann, 8 N. T. 50S ; Ficlcett V. Brice, 22 How. Pr. 194 ; Lester v. Jewett, 11 JST. T. 458 ; Smith v. Wrifjltt, 1 Abb. 243.) Where the plaintiff, in a bill for the specific performance of a ccmtraot to convey, has partially pertormed the contract on his part, a formal allegation in the bill, that he is ready to complete performance is unneoeesary. (Hatcher v. Hatch- er, IMcMullen's Ch. 311.) So where eacA party has in part performed. (Gh'ant v. Johnson, 5 Barb. 101 ; Wallace v. Warren, 1 Dowl. and L. 60. And see 8 Barb. 535; 4 id. 36; 29 id. 316.) Where, to entitle a plaintiff to recover, he must show performance of a condititm precedent, or a valid excuse for its ncm-performauoe, and there has been no perform- ance, but the plaintiff intends to rely upon the excuse, the complaint should state the facts in excuse, and not state that he duly performed ; for .under an allega- tion of performance, evidence in excuse of non-performance is not admissible. (Oakley v. Morton, 11 K Y. 3:5 ; Garvei/ v. Foioler, 4 Sandf. 665 ; Clarlc v. Crandall, 27 Barl). 73 ; Holmes v. Holmes, 9 y. Y. 535 ; Hoslen v. Black, 28 K. Y. 438.) In liowland v. Plialen, (1 Bosw. 44,) a complaint which alleged that the plaintiff' bad " fuUy and faithfally" performed, was held equivalent to alleging that he had dnlij performed. In an aoti(ra upon a policy of insurance, the complaint stated that on account of war between the communities in which the parties to the policy resided, "all pay- ments of premiums was impossible," and that "communication was suspended." Held, that this was not a pleading of impossibility, so as to excu-ie a non-payment of the moneys due on the policy. (O'Biely v. Mutual Life Insurance Compani/, 2 Abb., K S. 167.) If the complaint founds the right against the defendant upon the fact of his having had JioJJce, it should charge such notice directly; otherwise it is not matter "in is-Jiie upon which the court can act. (Story Eq. PI. § 263, and cases in notes.) lu Adrans v. Shcrrill, (14 How. Pr. 297,) it was held that a complaint against tbe maker and indorser of a promissory note, which alleged the making of the note, and its indorse- ment and transfer by the payee, the indorser, to the plaintiff, and that payment of the note was duly demanded at maturity, and it was thereupon duly protested for ntm- payment, and notice thereof duly given to the indorser, would have been insufficient to charge the indorser previous to the Code ; but that under the 16id section, it must be regarded as a general statement of the performance of the condition prece- dent to the plaintiff's right to recover, and was therefore sufficient. So where a note was payable at a particular place, and the complaint did not al- lege presentment at that place, but only that it was duly presented, this was held sufficient. (G-ray v. Paine, 5 How. Pr. 103; Ferner v. Williams, 14 Abb. 315.) In a suit to enforce an equitable title to lands, it is not necessary that the complaint should charge the defendant with notice of the plaintiff's equity. If the defendant claims as a purchaser without notice, he should set up by way of answer, the facts which entitle him to protection as such. (Makepeace v. Davis, 27 Ind. 352.) In some cases it is necessary to allege a demand of the property before bringing the suit. If, in such a case the plaintiff omits to allege a demand in his complaint, the omission will be cured by proof of tbe fact, by the report of a referee finding the fact of a demand and by the judgment. (Fullerton v. Dalton. 58 Barb. 23S.) The plaintiff' is only bound to allege a request when it is the object of the request to oblige the defendant to do something. (18 Eng. Com. Law Rep. 355.) If a defendant is liable to pay without any requobt, no request need be alleged. (Smith v. Emery, ■76 Chap. 1.] PROCEEDINGS TO A. DECREE. 40 ting out the complainant's case is not requisite in setting out that of 7 Halst. 53, 61.) So when a plaintifl'is entitled to a eonyeyanoe on request, he may bring his action -without any request. (Bruce v. Tilson, 25 JS". Y. 194.) Whore one engages to pay on demand the debt of another, no debt is due from him until demand has been made ; and In suoh a case, a prior demand must be alleged. (MiUiken v. Bijiyrly, 6 How. Pr. 224.) So a request must be alleged on a claim payable " after demand." (1 R. and M. 383,) or at a particular place, (Ferner v. Williams, 14 Abb. 21-=).) but not on a note payable " on demand," as the commeucement of the action ia a demand. (4 B. and C. 327 ; 2 Scott, 334 ; and see 24 Barb. 300 ; :i6 id. 629.) So Tvhero the defendant came by chattels wrongfully, or has converted them, no demand is necessary. {Pilsbitri/ v. Webb, 'S'.i Barb. 213.) But otherwise where the defend- ant came lawfully by the possessi(m. (New York Gar Oil Company v. Bichmond, 6 Bosw. 213 ; Bowers v. Bassford, 19 How. Pr. 309 ; Fuller v. Leiois, 3 Abb. 384 ; Gurney v. Kenny, 3 E. D. Smith. 132 ; Barrett v. Warren, 3 Hill, 315 ; Stone v. Liv- ingston, 6 John. 44 ; Purves v. Moltz, 5 Rob. 653.) So a request must be alleged in a complaint in a contract to deliver up a, bond " on request," (3 Bulstr. 297,) or to pay money " on request," (3 Camp. 459,) or to pay an annuity on request, (Cro. Eliz. 548, 721,) or to perform any act on request, (1 Sand. 32 ; Smith v. Tiffany, 36 Barb. 23 : Payne T. Gardner, 29 X. T. 146; ) or on a promise as surety, to pay rent on re- quest, (6 M. and S. 9, 121, 125 ; 11 Price, 494,) or to abate a nuisance, (2"4 Barb. 404 ; 12 IN". Y. 492.) But the rale requiring a demand does not apply to a commission merchant who is to sell and guaranty payment, unless he be a foreign factor, in which case a demand is necessary. (Holden v. Craft, 4 B. D. Smith, 490 ; Cooley v. Betts, 24 Wend. 203.) !N"or does it apply to a surety for rent, after the tenant has left the premises. (MoKen;iie v. Farrell, 4 Bosw. 193.) nor to the case of a j.oiiit promissory note, given by the principal debtor, and another as his surety. (Exparte AV^hitworth, 2 Mon. D. and De G. 158,) nor to an action to recover of a stockholder ou an illegal wager, (O'Maley v. Reese, 6 Barb. 658.) or to foreclose a mortgage, (Harris v. MiCloek, 9 How. Pr. 402.) although expressed to be payable on demand. (Gillett V. Balcom, 6 Barb. 371.) A dem.ind of good.s contracted to be sold, is not required when it would be useless to make one; as when the vendor has disabledhimself from complying with the oiratract, or where a waiver of demand may be inferred from his declarations and conduct. (Clark V. Cragidall, 3 Barb. 612.) Where a party covenants to convey laud, he is not in default until the covenantee, being entitled to a conveyance, has demanded it, and having waited a reasonable time to have it drawn and executed, has made a second demand. But if, on the first demand being made, the covenantor absolutely refuses to convey, it seems a second demand is unnecessary. (Lutweller v. Linnell, 12 Barb. 512.) When there is an executory contract for the sale of an article to be paid for upon dslivery at any time within a certain period, in an action by the vendor I'or the price, it is not enough simply to show the default of the purchaser. The plaintiff must show that he was ready and offered to deliver the goods. (Dunham v. Mann, 8 W. Y. 508 ; Kelly V. Upton, 5 Duer. 336 ; Cornwall v. Haight, 8 Barb. 323 ; Crandall v. Clark, 7 id. 169 ; Considerant v. Brisbane, 14 How Pr. 487 ; 2 Bosw. 471 ; Dunham v. Pettee, i E. D. Smith, 500, 21 K. Y. 397 ; and see McKnight v. Dimlop, 4 Barb. 36; Fancher v. Goodman, 29 id. 316.) If the plaintiff intends to rely upon a construc- tive delivery, he must not plead merely that the thing was delivered, but must allege the facts which he claims constitute a delivery. (Smith v. Leland, 2 Duer. 497.) In a complaint for the wrongful detention of personal property, an allegation of de- mand and refusal before suit, is not necessary ; but an allegation of ownership in the plaintiff is necessary, and if omitted, the complaint is fatally defective. (Scofield V. Whitelegge, 10 Ab., if. S. 104.) The fact that the plaintiff has not actual posses- sion of the note sued upon, does not affect his right to sue upcm it. (Sclden v. Pringle, 17 Barb. 468 ; Hastings v. MoKinley, 1 B. D. Smith, 273.) In an action for the non-delivery of goods, pursuant to a contract for sale and for de- livery at a particular place, the plaintiff need only allege that he was ready at the time and place appointed for the delivefy to receive and pay for the goods. He nend not allege payment nor an ofler to pay. (Bronson v. Wi'man, 8 !N". Y. 183.) Where it was agreed that the plaintiff, in o(msideration of the payment by the de- fendant of a specified sum on a day named, and on the delivery to him of certain notes, would make a certain assignment to the defendant, it was held that the money not being paid on the day named, the plaintiff might maintain his action therefor, without alleging that he had performed or offered to perform on his part. (SnUtJi v. Betts, 16 How. Pr. 251.) 77 40 PROOBEDINaS TO A DECREE. [Bouk I. the defendant against whom the relief is sought, becanse a cornphiin- The general rule is that fuU performance of an entire contract to do any particular service, la essential to the payment of compen8ati(m, and that no recovery can be had for a part performance. (14 "Wend. 257 ; 12 John. 1G5 ; 19 id. 337 ; 8 Cowen, 63 ; 11 Jf. T. 25.) It is no excuse that tbe service which a party has undertaken to perform is impracticable in itself. {Wolf v. Howes, 24 Barb. 174, 666; 20 S. T. 197.) Yet the sickness or death of the party cimtractiug, is a legal excuse for the non-peitorin- auce. {Id ; Fahy v. North, 19 Barb. 341,) and so is the fact that complete perform- ance is rendered impossible \)J the act of the law. {Jones v. Judd, 4 K. Y. 411.) "Where such an excuse exists, a recovery may be had for the part of the work actu- ally performed. ( Wolfe v. Hoioes, 20 jST. Y. 197.) The meaning of the last clause of section 162 of the Code is, that instead of setting forth the instrument, according to its legal effect, it is suificieut to give a copy of it. (Conklinv. Gandall, 1 Key es; 231.) In Prindle v. Caruthers, (15 K. Y. 220,) the complaint set out a copy of the instrument, whereby the defendant promised to pay a sum of money to C, and then alleged that the contract was the property of the plaintiff by purchase, and that the defendant was justly indebted to the plaintiff on said contract, $200, which the plaintiff claimed. On demurrer to the complaint, it was held sufficient. .So a complaint by indorsees, which stated only " there is due to the plaintiff' from the defendant $2,400, with interest from, ier, 58 Barb. 349.) But the kind'of relief sought should be explicitly demanded. (Banlcston v. Farris, M Mo. 17.5 ; Biddle v. Botjce, 13 id. 532.) In chancery the bill conclude^i with a prayer specifically for the relief which the plaintiff' conceives himself entitled to, and also for general relief. (1 Dan. Ch. Pr. 3d Am. Ed. 382.) And it is said the latter can never be properly and safely omitted, because if the plaintiff' should mistake the relief to which he is entitled iu his special prayer, the court may afl'ord him the relief to wliich he has a right, under the prayer for general relief; provided, it is such relief as is agreeable to the case made by the bill. (76 / note 3 ; Mitf. Eq. PI. 3«, 45; Coop. Eq. PI. 13, 14 ; Colton v. Boss. 2 Paige, 396; English v. Toxall,-i Peters, 595; Peck v. Pecfc, 9 Terg. 301.) Relief not specifically prayed for may be claimed under the prayer for geueraf relief. {Beau- mont v . Boultbee, 5 Ves. 485; Story Eq. PI.-§ 41, note.) Though this rule is not universal, as where an injunction is wanted, a special jKayer is necessary. (Story Eq. PI. §41 : 2 Story Eq. Jur. § 862, 863; Walker'x. Decereaux, 4 Paige, 248.) Under the Code, tlie prayer for general relief in a complaint is proper, and will not be struck out on motion. {Hemson v. Decker, 29 How. Pr. 385.) A good cause of action, fully set out in a complaint, is not vitiated by an inappropriate prayer. Soi can a^complaint be struck out for that reason, particularly when there is a prayer for general relief. The general prayer cures any defect in the specific prayer, and en- ables the court to give proper relief, and may be inserted for that purpose in every complaint, and is always proper ajjd appropriate. {Ih.) The demand of relief is an important part of the complaint, especially where it is probable that there may be a judgment recovered by default, for in such case the relief cannot exceed that de- manded in the complaint. (Van Sant. Eq. Pr. 107; Code, 5 5^75; Hurd v. Leaven- worth, 1 Code Rep., N". S. 278 ; Simonson v. Blake, 20 How. Pr. 484 ; S. C. 12 Abb. 331,) though in any other case the court may grant him any relief consistent with the ca,se made b\- the complaint aud eml)raoed within the issue. (Code, § 275.) Where the plaintiff' in his complaint asked to have notes to the amount of $r>,000 delivered up and cancelled, and to have a judgment for |i,000, it was held that a judgment ior 79 40 PEOCEMDfJVOS TO A DECREE. [Boolc I. Bill must be Ir ought for the ivhole subject.'] The bill mnst also be brought for the whole subject in dispute. The court will not permit a bill to be bi-ought for part of a matter only, so as to expose a defend- $7,000 exceeded the relief sought in the complaint, and the judgment was reversed. {Hard \. Leavenworth, supra.) It is not enough that the oomplaint states facts entitling the plaiutiflF to certain relief; he cannot in the absence of aa answer, hare anv relief not demanded. {Slinonson v. Blake, 12 Abb. 331 ; 20 How. Pr. 484 ; Walton V. Walton, 32 Barb. 203; S. 0..20 How. Pr. 347.) Thus, where in a fore- closure suit, the oomplaint only prays for a sale, the plaintiff cannot, in the absence of an answer, ta.ke a judgment for the payment of any deficiency. (/6.) The relief mnst follow the camplaint. The rule that a party nmst recover accord- ing to the case made by the oomplaint, or not at all — secundani allegata, as well as X>roliata — is not affected by the Code. iS^o decree can be made in favor of a plain- tiff on grounds not stated in his complaint, nor relief granted for matters not charged, although they may be apparent from some parts of the pleading and evidence. (Rome Exchange Bank v. JSaiiies, 1 Keyes, 588.) Thus, in an action against a cor- poration, to recover compensation for a grant of property to them, the plaintiff on failing to recover, cannot have judgment for a restoration of the property, if he has not asked any such relief. {Coleman v. Second Aoemie Bailroad Company, 38 H". T. 201; S. C. 48 Barb. 371.) So where the cause of action set forth in the complaint was a breach of a covenant for renewal contained in a lease, and the only relief de n^anded was judgment for a specified sum as damages, it was held that the only cause of action cognizable by the court, was that stated in the oomplaint, and that it was therefore immaterial whether or not the evidence made out a case for specific per- formance. {Ryder v. .fenny, 2 Rob. 56.) A judgment giving the plaintiff relief not demanded in the complaint is not merely irregular, but voidable as unauthorized, and the right to move to vacate it is not Hm- ited to one year. {Simonson v. Blake, 12 Ah. 331.) To entitle the plaintiff to a tenjporary injunction, it is not necessary to ask for it in the complaint. (See Vincent v. King, 13 How. Pr. 234.) It is held in California that where a party asks for specific relief, or for such other or further order as may be just, the court may afford any relief compatible with the facts of the case presented. {People v. Turner, 1 Gal.'l52.) And if specific relief cannot be granted, such relief as the case authorizes may be had under the praver for general relief. {lb ; Truelody v. Jacobson, 2 Cal. 26'J ; Rollins v. Forbes, 10 id". 299.) If the defendant appears sxii.puts in an answer, it is said " it is of no consequence what is the demand for relief in the complaint, or whether there is any for specific re- lief. "Whether the plaintiff has mistaken the kind of relief to which he is entitled is entirely immaterial." (Marquat y. Marquat, 7 How. Pr. 423; aft''d 12K T. 336.) The court -^vill in such case give such relief as the parties are entitled to, whether de- jnanded in the complaint or not. {Jones v. Bntler, 30 Barb. 641 ; S. C. 20 How. Pr. 189.) that is, such reUef as is proper in reference to the parties before the court. (t^mith V. Howard, 20 How. Pr. 151 ; Eldridge v. Adams, 54 Barb. 417,) and is con- sistent with the case made by the complaint and embraced within the issue. ( Cowen- hoven v. City of Brooklyn, 38 Barb. 9,) provided an action is the proper remedy. "Where the complaint asked for damages for keeping the plaintiff' out of office, and to have the certificate of the defendaut's election declared void, the complaint was dismissed'be- cause tlie plaintiff' should have proceeded by qno warranto. (Hartv. Harveii. HI How. Pr. 382.) , If the complaint alleges, and the evidence shows facts making an accounting neces- sary, it is not material that the complaint does not in terms ask for it, for it may be allowed under a general prayer for reUef. Dyckman v. Valiente, 42 N. X. ,549 ; afF". S. 0. 43 Barb. 131 ; 28 How. Pr. 346; Emery v. Fease, 20 N. T. 62.) In Wood v. Jiroion, (34 IS". T. .337,) where the complaint was iuartifioially framed, but contained a prayer for general relief, the facts showing that it was a case for an accounting, an accounting was adjudged under a prayer for general relief ; but where the ooiii- plaint alleges a partnership and asks for an acconutiug, if the plaintiff' fails to estal)- lish the partnership, he cannot have an accounting. {Salter v. Ham, 31 K. T. 321.) "Where the complaint prayed that a deed of trust should be declared ''' void, null, aud of no effect," aud also for general relief, it was held that although the deed could not be declared to be void, null, and of no eft'eot, yet that under the general prayer of the complaint, the court might allow it to be refcn-med ; .and it was reformed by in- serting iu it a power of revocation.. {Grafton v. Remsen. 16 How. Pr. 32 ) The intent of the provision in subdivision 2 of section 275 of the Code, was to relieve a plaiutiff' from any technical objection that he has not prayed for the precise relief to 80 Chap. 1.] PROCEEDINGS TO A DECREE. 40 ant to be harassed by repeated litigations concerning the same thing, {u) "Nor for one of two claims upon tlie sams defendant, {y) (») Id. U. (V) Purefoy v. Purefoy, 1 Veni. 29. which, on the trial, it may seem he is entitled, but the relief to be granted must still be consistent with the case made by the complaint. (Bradlei; v. Aldriah, 40 IST. T. 510.) In Armita(je v. Faloer, (5 Trans. App. 183 ; 37 If. T. 494,) it was held that it is not error to allow a plaintiff are^ judgment to which, upim the allesatious and proof, he is entitled, either at laio or in equity. The decisions which hold that if a party brings an equitable action, he must raainfcaiu it upon equitable grounds, or fail, even though he may on the trial prove a g'lod cause of action, are not inconsistent with the riile laid down in the case la^t cited. Where the complaint naito-i legal and equitable causes of action, if the evidence .sustains either, jndgmeut sbonld bi reinhre 1 aricordingly. whether the action be tried at circuit or speciaftenn. (NisK! York Tee Cnmpan'j v. N'nrthwestnrn Insiiranoe Com- j'Wii/, 23 W. T. 3-57; Daiils v. Morris, 3) id. oJ3; Getty v. Hudson Rioer Railroad Compani/, 6 How. Pr. 2c,3 : S. 0. 10 Leg. Ob^. 8.3.) Thus, where the complaint prays for the refor. nation of a contract, and damages for its breach, and the court finds the plaiutiff not- entitled to have the contract re- I'omied, but that he is entitled to dama'^es for it-i breauh, the plaintiff should have judgment for the damages proved, {[bid ; Bidwell v. Astor itiitiial Insurance Com- pany, 16 N". Y. 333.) Where a complaint claims the benefit of a trust deed, treating it as valid, relief cannot be given on the gniund that the deed is void. (Boine Ex- change Bank v. Eames, 1 Keyes, 588.) So a case for relief from a foreclosure on the ground of fraud, is not consistent with relief in damages for deceit. {Bradley v. Aldrick, 40 S. Y. 504.) But a case for specific pjrformauce, and in default thereof, compensation in damages is consistent with, relief in damiges merely. (Saott y. Bar- low, d4 jST. T. 40; Greasan v. Keteltas, 17 id. 491 ; and see Marquat v. Marquat, Vi id. 33j.) Where the complaint alleges fraudulent representations on the part of the defendant, by which the plaintiff was induced to pay him money, and which is sought to be recovered, the plaiutiff may recover as for money received to his use, without any proof of fraud. (Byxbie v. Wood, 24 ]!J". Y. 607.) So on a complaint for forcible entry on the plaintiffs land and carrying away his goods, the plaintiff may have judgment for goods converted without force. (Colton v. Jones, 7 Rob. 164 ; and see Eldridge v. Adams, 54 Barb. 417.) In an action for relief from a usurious con- tract, the complaint will not be dismissed at the trial, because it does not contain an offer to pay what is equitably due ; bat the plaintiff may have judgment conditioned on his paying what is equitably due. (Beeoher v. Aokerman, 1 Abb. IT. S. 141 ; S. C. 1 Rob. 30; and see Beach v. Cooke, 28 JSl. Y. 508.) Where an action is to obtain legal relief only, (the recovery of money,) and the plaiutiff on the trial fails to establish a right to recover on legal grounds, he cannot have equitable relief. (Towle v. Jones, 19 Abb. 449.) So under a complaint framed to set aside an assignment on the ground of fraud, the plaintiff failing to obtain that relief, cannot have a judgment settling the construction of the instrument. {Sotop V. Neidig, 17 Abb. 332.) In pleading, a party is now to state the facts on which he relies to sustain a re- covery, and if issue be taken thereon, he will be entitled to just such a judgment as the facts established will by the rules of law warrant, without regard to tlie form or name of his action. (Eldridge v. Adams, 54 Barb. 417.) As the forms of pleading do not now control the eonrt in an action for wrongfully taking and carrying away and oonvei'ting property, mast examine the evidence, and if the proof or faets fonnd by the jury, entitle the plaiutiff to a judgment, such judgment should be given, even though not asked for by the complaint. (Ibid.) There is no reason against uniting in one action claim? for both legal and equitable relief, (Getty v. Hudson River Railroad Company, 6 How. Pr. 269; New York Ice Company v. Northwestern Insurance Company, 21 id. 29j ; Stevenson v. Buxton, 15 Abb. 352; Sheehan v. Hamilton, 3 Abb. H". S. 197 ; Batiis v. Morris, 36 N". Y. 569,) provided, they are not inconsistent with each other, (Linden v. Fritz, 3 Sandf. 6ii^ ; Tonng v. Edwards, 11 How. Pr. 201 ; Trull v. Granger, 8 i^f. Y. 115.) and the matter arises out of the same tran-iaction. (Gates v. Kieff, 7 Cal. 125 ; Marius v. BielcnoU, 10 id. 224; Weaver v. Conger, id. 237 , Rollins v. Forbes, id. 300 ; Hill v. Taijlor. 2i id. 191; Moses V. Walker, 2 Hilt. 53,5; Fhalen v. Bushnell, 48 Barb. 24.) But they should be separatelv stated in the complaint. (Gates v. Kieff, supra ; Getty v. Huil- Voi. i.-'-e. Si 40 PROCEEDING^ TO A DECREE. [Book I. Musi state the wliole case.] Care should be taken in framing the bill that every thing -which is intended to be proved, 1 e stated upon the face of it; otherwise evidence cannot be admitted to prove it. {iv) Nor will even an inquiry be directed before the master, unless a foun- dation for such inquiry is laid in the pleadings, (x) (w) Gorrlon v. Gorrlnn, 3 Swans. +72. Hall v. Maltby, 6 Price, 240. 18 Ves. 302. 6 Sim. 56.?. (ic) HoUoway v. Millartl, 1 Mad. 4U. son River Railroad Company, 6 How. Pr. 239 ; New York Ice Company v. Northviest- ern Insurance Compami, -2:! if. Y. 3-57; Young v. Edwards. 11 How. Pr. 201.) Although legal redress and equitable relief cau be demanded in the same action, and either or both afforded by the court, yet to entitle the plaintiff to either, he mast ask it in his complaint, {Stevenson v. Buxton, 15 Abb. 352,) and though the Code has abolished the distinction between legal and equitable remedies, it does not sanction demands for inconsistent relief. Thus, a forfeitnre of a lease, and granting an injunc- tion as though the lease was subsisting, cannot both be sought in the same action. {Linden v. 'Sephurn, 3 Sandf 60S; S. C. 9 N". T. Leg. Obs. 80.) So a plaintiff caa- not so frame his complaint as that if he fails to recover the possession of prop- erty, he can recover damages for the conversion. Hence, a complaint which alleges the taking, detension and conversion of personal property, and claims not only a rede- livery to the plaintiff, bnt also dainages for the conversion, is liad on demurrer. (Maxwell V. Farnatn, 7 How. Pr. 233.) "Where the relief demanded is a remedy at law only, as the recovery of money, it renders equitable relief so far inconsistent with the case made by the o.omplaint, as to prevent the plaintiff's having equitable relief. (Tomlev. Jones, lRob.87; Rt/der v. Jenni/. 2id. 65.) A demand for the pay- ment of an iustabnant of purchase money in arrear, and for a forfeiture of the con- tract, are also inconsistent. (Young y. Edwards, W How. Pr. 201.) And so are a demand of relief and of judgment for a specified sum. (Durant v. Gardner, 10 Abb. 445.) But alternative relief can be obtained ; and a complaint in an equitable action may be framed with a doulile aspeoc when the pleader doubts the particular relief to which the plaintiff is entitled, so that if the court should be against him, under one view of the case, it mar nevertheless afford him assistance in another. Thus, in an action to i-ecover property sold under a mortgage, the plaintiff may state both that the mort- gage was usurious, and that the sale under the foreclosure was void for other reasons. (Young -^.Edwards, 11 flow. Pr. 201; Linden y. Fritz, 3 GoUe Rep. 165 ; S. 0. 3 Saudf. 3oi; see also IVoadY. Sselij, 3iS. Y. 105; Warwick v. Mayor, Jj-c, of New York, 28 B.arb. 210 ; S. 0. 7 .Vbb 235 ; People v. Mai/or. c)-o., of New York, 2S'Barl). 240; S. 0. 8 Abb 7.) Fet in Durant v. Gardner. (10 Abb. 445 ; S. C. 19 How. Pr. 94,) it was held that a demand for judgment up.in hypothetical or alternative cimclu- sioas of law, at which the court might arrive on the trial, was improper; also that a demand for g-ineral relief was inconsistent with a demand for judgment in a specified sum, in an action for a money demand on contract. And in Warwick v. Mayor, ifr.. of Neic York, {ii Barb. 210 ; S. C. 16 How. Pr. 357 ; 7 Abb. 265,) the complaint was held demurrable for demanding a judgment in the alternative, viz. : 1st, Relief to the plaintiff individually, and if that should be refused, then, 2d, Relief in reference to the same subject matter in favor of the plaintiff', in connection with other persons as tax; payers. It is improper to join in one complaint prayers fen- relief against the defendant in- dividually, and in his capacity as esecntin-. (McMahon v. Allen, 1 Hilt. 103.) In Maxwell v. Farnain, 7 How. Pr. 236,) a complaint which alleged the taking and conversion of personal propei'ty, and claimed not only damages for the conversion, but also a redelivery to the plaintiff, was held to be demurrable on the ground that two causes of action were improperly joined. So a plaintiff cannot m the same com- plaint pray relief by a judgment for the amount claimed, and a judicial detei-miiia- lion on the validity of an assignment of property made by the defendant. (Reubens v. .Joel, 13 iJ-. Y. 488.) In Lainoreaux v. Atlantic Mutual Insurance Company, (.5 Duer. 630,) a demand of relief that " if necessary" the plaintiff should be relieved, wa-'- ordered to be amended by striking out the words " if necessary." An objection to the relief demanded must be taken by motion. (Durant v. Gard- ner, 10 Ab. 445 ; S. C. 19 How. Pr. 94 ; liicard v. Townsend, 6 id. 460, 462 ; Mosc-; V. TFaiter. 2 Hilt 533 ; Ifalton \ . Walton, 32 Barb. 203: -20 How. 347; Anon. 11 82 Chap. 1.] PROC£EDT^'GS TO A DECREE. 4Q • Multifariousness.] As the bill should not omit any thing which it is material to state, it is equally important that it should not run into the opposite defect, and attempt to embrace too many objects; it being a rule in equity that two or more distinct subjects cannot be included in the same suit. The offence against this rule is termed miMifari- uiisness, and will render a bill liable to demurrer, {y) Joint and sepa- rate demands cannot be joined in a bill without rendering it multifa- rious, {z) (11) And as a bill by the same complainant against the same (»)10au.417. (a) Harrison V. Hogg, 2 Ves. jiin. 323. 2 Anst. 469. Ab. 23. And see People ex rel., Taylor v. Mayor, cf-c, of New York, 8 Ab. 7 ; S. 0. 2d Barb. 240 ; 17 How. Pr. 56 ; S. C. 10 Ab. Ill ; Redmond v. Dana, 3 Boaw. ()15 ; Andrews v. Shaffer, 12 How. 441.) (11) As respects tha joinder of several causes of action, in the same complaint, or multifariousness, as it was formerly styled, the Code {sea. 167,) provides that a plaiu- titt' may unite, iu the same oomplaiut, several causes of action, whether they be such as have been heretofore denominated legal or equitable, or both, where they all arise out of 1. The same transaction or transactions connected with the same subject of action. 2. Contract, express or implied ; or :>. Injuries, ivith or without force, to person and property, or either ; or 7. Claims against a trustee, by virtue of a contract, or by operation of law. (See also Gal. Pr. Act, § 64, and Codes of Oregon, ISTevada, Arizona, Idaho, Ohio, i^ 80 ; "Wisconsin, § 73 ; Minnesota. § 87 ; Kansas, § 89. ) There are three other subdivisions of the section, relating to common law actions only. It is further provided, by sec. 167, that the causes of action so united mast all belong to one of these classes, and, except iu actions for the foreclosure of mortgages. must affect all the parties to the action, and not require different places of trial ; and must be separately stated. The causes of action must aU belong to one of these elass.es. Thus, an action to enforce the specific execution of a contract, which belongs to the second class, can- not be joined with an action for an injunction to stay the commissiou of waste, which belongs to the third. But a claim for specific performance, may be united with a claim for the payment of a reasonable sum for the use and , occupation thereof ; both belonging to the first subdivision. (Van Saut. Eq. Pr. 100; Spier y. Robinson, % How.'^Pr. 326.) So a claim to reform an agreement, erroneous in form through the fraud of the defeudant, may be united with a claim for damages for an alleged breach • of it. {Jerolinian v. Cohen, 1 Duer. 6^9.) And where a creditor, suing in behalf of himself and other creditors, brought an action against an assignee, under an assign- ment for the benefit of creditors; the relief demanded being the reformation of the assignment iu a matter not common to all the creditors, and an accounting by the assignee ; it was held that suoh relief was not inconsistent, and that there wag bnt one cause of action stated, arising out of one transaction, (darner v. Wright, 23 How. Pr. 92.) But such claims, though they arise out of the same transaction, or transactions, cannot be joined, unless they are connected with the same subject of action. (BiUce v. Thompson, 9 How. Pr. 113 ; Smith v. HaUeclc, 8 id. 73.) For the plaintiff cannot, by the same bill, demand of several defendants, several distinct things having no connection with each other. (Ingersoll v. Kirby, "Walk. Ch. 6.5.) Therefore, a bill to quiet title to lands is multifarious when parties are joined as defendants, between whom there is no connection in interest, as against the plaintiff. (ffuntonv. Piatt, 11 Mich. 234.) The joinder of causes of action arising out of the same transaction nmst be of such as are not contradictory, or inconsistent with each other. (Sweet v. Intjerson, 12 How. Pr. 331 : Linden v. Fritz, 3 Sandf. 668 ; Young \'. Edwards, 11 How. Pr. 201 ; Trull v. Granger, 8 JS"". Y. 115.) jSTor can equitable causes of action, n;it falling under either of the subdivisions of section 167, suoh, for example, as a bill for partitiou, and a creditor's bill, be united. (Tan Saut. Eq. Pr. 101; Le Roy v. Shaw, 2 Duer. 6^6; Bciiey v. Iftird, 12 How. Pr. 419.) Xor can a claim for equitable relief iijiainst a corporation, and one for damages against indi- vidual defeudauts, be jjiued. (House v. Cooper, 30 Barb. 1.,7.) 40 PROCEEDINGS TO A DECREE. [Book I. defendant for different matters would be considered multifarious, so a Several causes of action cannot be blended together in one count, in a complaint, but must be separately stated. (Colivell v. N. Y. f Erie B. B. Co. 9 How. Pr. 311 ; Van Namee v. Peoble, id. 198 ; i^etty v. Hudson Blver B. B. Go. 8 id. 177 ; Whittier V. Bates, 2 Ab. 477 ; LatUn v. McCarty, 17 How. Pr. 2.39 ; S. C. 8 Ab. 225 ; Diirkee V. Saratoga f Wash. B. B. Co. 4 How. Pr. 22H ; S. 0. 2 Code Rep. 145 ; Aeome v. American Mineral Co. 11 How. Pr. 24.) Where several causes of action are united in one complaint, they must belong to one class, as mentioned in section 187 of the Code, and be separately stated ; and each count which assumes to set out a cause of action must do so in itself, and not depend upon other counts to supply the facts which are omitted therefrom. {Landau Y. Levi/, 1 Ab. 376.) Each ditferent cause of action joined in the complaint, must be presented as a separate count, which must be good of itself, and stand by itself. (Lattin V. McCarty, 17 How, Pr. 239 ; S. C. 8 Ab. 225.) A rule of the Supreme Court directs that when there are several causes of action, they must be separately stated, and plainly numbered. (Rule 25 and note. See Blanehardv. Strait, 8 How. Pr. 83.) The causes of action should be distinguished by the phrase, " And for a further cause of action, the plaintiff complains," &c., or some other equivalent words. (Benedict T. Seymour, 6 How. Pr. 298; Lippeneott v. Goodwin, 8 id. 242; Goodwin y. McAlis- tei; 9 id. 123.) The provision of the Code, requiring that the complaint shall contain a plain and concise statement of the facts which constitute the cause of action, applies to each count of the complaint; and a general allegation that the second cause of action arose out of transactions connected with the first, does not establish a case within the rule. (Flynn v. Bailey, 50 Barb. 73.) Difiereut counts for the same cause of action, varying only hi form and statement, are not allowed bj' the Code. {Dickens V. Xew York Central B. B. Co., 13 How. Pr. 228; Fern v. Vanderbilt, 13 Ab. 72; JJuws V. Hotchkiss, 10 N". Y. Leg. Obs. 281; Nashr. McCauley, 9 Ab. 159; Whittier V. Bates, 2 id. 477 ; Simmons v. Fairehild. 42 Barb. 404 ; Ford v. Mattice, 14 How. Pr. 91; Lackeys. Vanderbilt, 10 id. 155; Churchill ^r. Churchill, 9 id. 5-52; Dunniiui V. Thomas, 11 id. 281; Stockbridge Iron Co. x. Mellen, 15 id. 347.) An irregularity in this respect, however, is not a ground for setting aside the pleading, but must be reached by a motion to strike out the superfluous matter, speeilying it in the notice of motion. (Higgins v. Thomas, 13 Ab. 72, note; Lackey y. Vanderbilt, 10 How. Pr. 155.) Where no necessity is shown for stating one cause of action in several counts, all but one will be struck out. (Hepburn v. Babcock, 9 Ab. 159, note.) The prcjper remedy for a violation of the above rule is by motion to compel the plaintiff to elect whicii count shall stand, and to strike out the others. (Fern v. Vanderbilt. 13 Ab. 72.) Where there are separate counts, in a complaint, each count must dis- close a distinct right of action, complete in itself (Simmons v. Fairehild, 42 Barb. 404.) All the facts necessary to constitute a cause of action must be alleged in each count, (lb.) Where it appears from the face of the complaint that several counts therein are really for the same thing, no affidavit by the defendant is required, to show that there is really but one cause of action against him. (Fm'd v. Mattice, 14 How. Pr. 91. See Lackey v. Vanderbilt, 10 id. 155, contra.) The Code, however, does not under all circumstances, prohibit the use of more than one count founded upon the same instrament or transaction ; and where the com- plaint contains two counts founded upon the same instrument, which differ materially in substance, and are inserted for the purpose of sustaining two different and distinct claims, the ct>urt will neither compel the plaintiff' to elect between such counts, nor strike out either of them as repetitions. (Birdseye v. Smith, 32 Barb. 217.) So a plaintiff' may be allowed to set up one cause of action in two diff'erent counts, where there is a i'air and reasonable doubt of his ability to safely plead them in (me mode only. (Jones v. Palmer, 1 Ab. 442.) In Ohio, the statement in the petition of one and the same cause of action in two different forms, one count nanating specially in detail the facts, and the second ciiuut containing a general allegati(m, is not allowable as a mode of pleading under the Code ; but if no objectiim is taken, the general count may be regarded as mere surplusage. (Ferguson y. Gilbert, 16 Ohio St. 88.) different causes of complaint of the same nature, and between the same parties, may be united in one suit where the same relief is asked ; but where the causes of com- plaint arc dissimilar in their nature and would require diff'erent decrees, it would em- barass, rather than expedite the administration of justice, to allow them to be united in the same biU. (Hart v. McKeen, Walk. Ch. 417.) A bill trained with a double 84 Chap. 1.] PROCEEDINGS TO A DECREE. 4Q fortiorari, would a bill by several complainants, demanding distinct aspect must be consistent with itself. It should not set up diflerent and distinct causes (if complaint that destroy each other. (Z6.) A bUl which unites objects en- tirely distinct, having no necessary or proper connection with each other, and which unites pai'ties having no common interest in most of the subjects of oontroversj', is multifarious. iCrane v. Fairehild,! McCarter, (S". J.) 176; Emails \. E mans, -i Beasley, (N. J.) -iKi.) To determine whether a bill is multifarious, the court must look to the stating part, and not to the prayer alone ; for if in his prayer for relief, the plaiutiff asks several things, to st>me of wliich he may be entitled, and to others not, the bill is not on that account multifarious ; but the plaiutitf wiU, on the hearing, be entitled to that specitie relief (mly which is consistent with the case made in the stating part of the bill. (Hammond v. Michigan State Bank, "Walk. Ch. 214.) A complaint may include causes of action to remove a trustee, and recover from a stranger property improperly sold by the trustee. {W hitman \. Abernathy,Z'i Ala. 154,) and f(U- legal and equitable relief, when consistent. (Getty v. Hudson River Railroad Company, 6 How. Pi 269 ; Voung v. Edwards, 11 id. 201 ; Wardell v. Ttirney, 5 Duer. 061 ; Ch-idley v. Gridley, 24 K. T. 136 ; Phillips v. Gorham, 17 id. 284 ; New York Ice Company v. Northwestern Insurance Company, 21 How. Pr. 296 ; 12 Abb. 414 ; Gooding v. McAllister, 9 How. Pr. 123 ; Davis v. Mairs, 36 ST. T. 569; S. C. 3 Trans. App. 226 ; 35 Barb. 227.) The causes of actiou to be joined must bo in favor of all the plaintiffs and against aU the defendants, and must belong to the same class, (Enosx. Thomas, 4 How. Pr. 48.) but the defendants need not be all equally affected. It is enough if the causes affect all, though in unequal degrees. (Vermeule v. Bech, 15 How. Pr. 333.) A bill may be sustained against different persons relative to matters of the same nature, in which all of the defendants were more or less concerned, though not jointly in each act. (Wheeler v. Clinton County Banlc, Harriug. Ch. 449.) So a bill may be filed by several persons claiming under a oommcm title, but in different shares and proportions. (Shield t. Thomas, 18 How., U. S. 253.) And two causes of complaint, growing out of the same transaction, may be joined in the bill when all the defend- auts are interested in the same claim of right, and similar relief is sought against each. (Bowers v. Keescher, 9 Iowa, (1 With.) 422.) But a complaint cannot con- tain distinct causes of action, in which some of the defendants are not interested. (Alger v. Scoville, 6 How. Pr. 131; S. C. 1 Code Rep., X. S. 303; Lexington ^ Big Sandy Railroad Company v. Goodman, 15 How. Pr. 85 ; S. C. 5 Ab. 493 ; 25 Barb. 469,) unless combination is charged. (Wilson v. Wilson, 23 Md. 162.) And parties having no community of interest cannot be joined in the same biU. (Armstrong r. Athens County, 10 Ohio, 235 ; Ohio v. Ellis, id. 45(5.) The guarantor of a wi'itten instrument cannot be joined with the maker in a suit thereon, because the causes of action are distinct, and neither cause separately, affects " all the parties to the action." (Le Roy v. Shaw, 2 Duer. 626.) Nor can a cause of action against two defendants to recover the possession of real estate, be joined with a cause of action against one of them for moneys received by him for rents and profits, (Tompkins v. White, 8 How. Pr. 520 ;) or a cause of action for equitable relief against a corporation, with a claim for damages against individual de- fendants. (House V. Cooper, 16 How. Pr. 293.) So where one in whose hands seouiities have been deposited as collateral, has assigned them to several persons by different instruments, each of which are claimed to be void as against the plaintiff', he cannot embrace them all as defendants in one suit brought to compel the smi-en- dering of the secmities and asking a tempiu'ary injunction in the meantime, to restrain their transfer. (Lexington ^ Big Sandy Railroad Company v. Goodman, 25 Barb. 469.) So where an infant, having conveyed different portions of land by separate deeds, to two persons, one of whom conveyed to five other persons, on coming of age, dis- avowed his deeds, and brought an action against aU the grantees to recover posses- si(>7i, it was held that the several causes of action were improperly united. ( Voor- hies V. Voorhies, 24 Barb. 151.) Not only must the causes of action affect all the parties to the action, but they must all exist in the same right. Thus, a plaintiff' cannot include claims in his indi- vidual right, and claims due him in a representative capacity, as executor or admin- istrator. (Van Sant. Bq. Pr. 10 i; Lucas v. N. Y. Central R. R. Co., 21 Barb. 245; 4 Hill, 492 ; 1 Tenn. K. 489.) Nor can a cause of action against an executor, admin- istrator or trustee, individually, be united with a cause of action against the testator (ir intestate, or cestui que trust. (McMahnn v. Allen, 3 Abb. 89; IJavouev. Fanning, 4 John. Ch. 199 ; 12 How. Pr. 39 ; Pugsley v. Aiken, 14 Barb. 144 ; Latting v. Latting, 85 4] PROCEEDINGS TO A DECREE. [Book I. [*4:1 J matters, against the same *defeiidants. («) But a bill does not (o) Jones V. Gfucia Del lUo, 1 Turn. & Knss. 301. 4 Saridf. Ch. 31; Landon v. iewj/, 1 Abb. 376; Benjamin v. Taylor, 12 Barb. 328; Vitrtli V. liadde, 18 Abb. 396 ; 28 How. Pr. 230.) Nor a claim in favor of the plain- tiff as an individual, with a claim in his favor in a r«presentative character. {Hall V. Fiaher, 20 Barb. 442 ; Lucas v. ^V. Y. Central li. li. Co. 21 id. 245 ; Carter r. Trcadwell, 3 Story, 0. C. 25, 51 ; Robinson v. Girifoi, 12 Mete. 323.) Nor a claim asainst the defendant individually, with one against him as executor. (McMalion v. Allen, 12 How. Pr. 39; S. C 3 Ab. 89; 1 Hilt. 103.) Tet it has been held in Korth Carolina, that a bill is not multifarious because it alleges title to the same fund in two different rights, to wit, as administrator and as next of kin. (Fairly v. Priest, 3 Jones' Eq. 21.) A cause of action against one defendant as trustee, and against another defendant individually, cannot be joined. {Alger v. Scoville, 1 Code R., N. S. 303 ; 6 How. Pr. 131.) Kcir a cause of action agaiust the defendant individually, with a cause of action against him as trustee. {Landon v. Levy, 1 Abb. 376); or a claim against the defendant in his individual character, and another claim against him as hoir, for the debt of his ancestor. (Bryan v. Blytlie, 4 Blackf. 249. See Bobinson v. Chiild, 12 Mete. 32:5.) ISTcn- a claim in favor of the plaiutift' as an individual, with a claim in i'avor of the public generally. ( Warwick v. The Mayor, 4'C., of New York, 26 How. Pr. 358; 28 Barb. 212) ; nor a claim against all the defendants jointly, with a claim against one or some of the defendants severally. {Barnes v. Smith, 16 Abb. 420 ; Wells V. Jewett, 11 How. Pr. 242 ; Le Boy v. Shaw, 2 Duer. 626; Bodgers v. Bodgers, 11 Barb. 595 ; Enos v. Showers, 4 How. Pr. 48 ; Viall v. Mott, 37 Barb. 208 ; Tom.p- lins V. White, 8 How. Pr. 520); nor a claim for a breach of warranty, and a claim for damages for fi-audulent representations in regard to the same transaction. (Sweet V. Inijerson, 12 How. Pr. 331 ; Springsteed v. Lawson, 14 Abb. 328 ; Quintard v. Newton, 5 Kol. 72) ; nor for a legacy, and for rent, not arising out of the same trans- action. (Gridley v. Gridley, 33 Barb. 250); nor for a divorce on the ground of adultery, and for cruel and inhuman treatment. (Mcintosh v. Mcintosh, 12 flow. Pr. 289; Johnson v. Johnson, 5 John. Ch. 163; Henry v. Henry, 17 Abb. 411); nor for a wrongful conversion of goods, and a claim for money received to the plaiutifi''s use. (Cobb v. Bows, 9 Barb. 230 ; and see Morse v. Smith, 10 How. Pr. 361 ; Hun- ter V. Powell, 15 id. 221; Dorman v. Kellam, 4 Abb. 202; 14 How. Pr. 184. A bill is also multifarious where the plaintifi', as next of kin, calls upon the defend- ant, who is the personal representative of the intestate, to answer in that capacity, and also, as an heir at law, calls upon the defendant to account for rents and profits which have come to his hands. ( Van Matei- v. Sickler, 1 Stockt. (N. J.) 483.) But a plaintifl' may unite a cause of action as executrix with one as devisee, where both accrued under a contract made by the testator with the defendant, gi-owing out of the same matter. (Armstrong v. Hall, 17 How. Pr. 76.) Several causes tif action do not always form the subject of several separate state- ments or counts, but are si)metimBS thi'OT\u, for the sake of brevity and convenience, into one. (Longworthy v. Knapp, 4 Abb. 115; Adams v. Holley, 12 How. Pr. 329.) Stating several grounds of complaint is not necessarily sevei'al causes of action. (Durant v. Gardner, 10 Abb. 445.) By mnltifariousness in a bill is meant the improperly joining, in one bill, distinct and independent matters, and thereby confounding them; as, for example, the unit- ing of several matters of a distinct and independent nature, against several defend- ants, in the same bill. (Story Eq. PL 5 271; Wert v. Randall, 2 Mason, 201; Fellows V. Fellows, 4 Cowen, 682; Brinkerhoff v. Brown, 6 John. Ch. 139; Boyd v. Hoyt, 5 Paige, 65; Jackson v. Forrest, 2 Barb. Ch. 576; Metcalf v. Cady, 8 Allen, 587 ; Richardson v. McKinson, Lift. Sel. Ca. 320 ; Hungerford v. Cashing, 8 Wis. 332.) A joint claim against two or more defendants cannot be joined in the same bill (or complaint) with a separate claim against one of the defendants only, in which the other defendants have no interest, and which is wholly unconnected with the claim against them. (Swift v. Mckford, 6 Paige, 22 ; Boyd v. Hoyt, 5 id. 65.) Nor can an action be maintained by an administrator in conjunction with the heirs ami distributees of the intestate, to recover perscmal property in the hands of the defend- ant, and to divide and distribute it. (Thurman v. Shelton, 10 Yerger, 383.) Uncon- nected demands against diflerent estates cannot be united in the same bill or com- plaint, thiiugh the defendant is executor of both. (Daniel v. Morrison, 6 Dana. 186 ; Kay V. Jones, 7 J. J. Marsh, 37. See McCartney v. Cidhoun, 11 Ala. 140.) So'when heirs at law, or legatees, have an alleged right of action aiisuag under the wills ol 86 Cliap. 1.] PSOOEEDTNGS TO A DECREE. 41 become multifarious because all the complainants are not interested to an equal extent, {b) (6) Kuye v. Moore, 1 Sim. & Stu. 61. two different persons, suoli claims cannot be united in the same complaint, even tliongh two of the defendants are the execntors nuder one will, and the third defend- ant is executor under the other will. (Fiall v. Mott, 37 Barb. 208.) Hor will a complaint be eood if it seeks redress against several defendants, for injuries arising out of transactions with them separately^ at different times, and relating to different subjects. (Coe v. Tamer, 5 Conn. Wri ; Mareelis v. Morris Canal, tf-c. 1 Saxtira, (N". J.) '>!1; Meaeham v. iniliams, i) Ala. 842; Golbiiritv. Broaghtoii, id. 351; Hangerford V. Ciishing, 8 Wis. 332.) But a bill is not uiultifarious when one general right is claimed by the plaintiff, although the defendants niav have separate and distinct rights. (Diiitinock v. Blxbij, '20 Pick 3tj8 ; Seers v. Carrier, 4 Allen, 341 ; Tacker v. Taoker, 29 "Wis. (8 Jones,) 3oO ; see Watson v. Cox, 1 Ired. Bq. 389 ; Stuart v. Coalter, 4 Band. 74 ; Neioland v. Rogers, 3 Barb. Ch. 432 ; Rohertsoii, v. Steoens, 1 Ired. Ch. 247 ; Delafleld v. Ander- r,iin, 7 Sme. and Mar. 630 ; Allen v. Montgomery Railroad Company, 11 Ala. 437 ; Scrimeger v. Buchannon, 3 A. K. Marsh, 219 ; Parish x. Sloan, 3 Ired. Ch. fi07 ; Vann v. Hargett, 2 Dev. and B. Ch. 31.) Ifor when its allegations all relate to one transaction between the saaie parties, to one and the same subject matter and the same iujary, although it may pray for two different methods of relief against that in- jniy. ( Wells v. Bridgeport ,^ C. Co. 30 Conn. 316 ; T. Woods, 2 Jones' Eq. (S. C.) 198.) Nor when it joins a good cause of complaint growing out of the same transaction, where the defendants are all interested in the same claim of right, and where the relief asked in relation to each, is of the same general character. ( Walkiq/ v. Zehring, 13 Iowa, (5 With.) 306.) iSTor is a bill filed against separate and distinct holders of different tracts of land, aliened by the husband dming coverture, without relinquishment of the wife, to recover dower in each tract, multifarious. The plain- tiff may elect whether to convene all the purchasers in one suit, or to bring separate suits against each. (Boyden v. Lancaster, 2 P. aud H. (Va.) 198. Unconnected parties having a common interest centering in the point in issue in the cause, may unite in the same bill. (Comstock v. liaijford, 1 Sui. and M. 423.) Thus, where two non-residents having distinot claims against another non-resident, filed their bill in Mississippi, to subject funds of the non-resident defendant in the hands of a resi- dent of that State, who was also made a defendant ; it was held on demurrer, that the bill was not multifarious. {Ibid.) And where an administrator has eollnsively sold separate lots to separate pui'chasers at the same sale, a bill against all the pur- chasers is not multifarious. {Forniquet v. Forstall, 34 Miss. (.5 George,) 87.) A bill is multifarious which seeks to redeem a mortgage of an entire estate, and a subsequent mortgage by one tenant in common of his share in a part of the estate. ( White V. Curtis, 2 Gray, 4J7.) But a bill is not necessarily multifai-ions by reason of its seeking to redeem two distinct mortgages of different parcels of real estate, or by reason of its seeking specific performance of distinct contracts relating to different parcels of real estate. (Robinson v. Guild, 12 Meto. 323; see Solman v. Bank oj Norfolk, 12 Ala. 3n9.) So a bill for a general account and settlement of a copartner- ship may embrace every object necessary to the complete adjustment of the concern, without being objectionable fin- multifariousness. (Wells x. Strange, 5 Georgia, 22. See Kentx. Lee, 2 Sandf. Ch. 105; Tomlimon v. Claywell, 4 Jones' Eq. (N". 0.) 317.) Where several persons claim under one general right, they may unite in a bill fi)r the establishment of that right, without incurring the risk of a demuwer for multi- fariousness, although the title of each plaintiff' mav be distinot. (1 Dan. Ch. Pr. 351 ; Story Eq. Pi. § 279, a; Shields v. Thomas, 18 How. 253.) Where a bill in equity by several plaintiff's, to enjoin a nuisance, contained also a prayer for an account and compensation for the damage to each plaintiff, it was held that multifarious relief could not be granted as prayed for; but that the objection might be obviated by striking out the prayer for an account of the damage to the plaintiffs respectively. {Murray v. Hay, 1 Barb. Ch. 59 ; Brady v. Weelcs, 3 Barb. 157.) So in other cases where all the plaintiffs are interested in the principal matter stated in the bill, but the bill states a distinct ground for the interference of equity, which c(moerus only one of the plaintiffs* if there is no prayer for relief touching this latter matter, tie bill is not multifarious, \judson v. Toulmin, 9 Ala. 662 ; Davis v. Miller, 4 Jones Eq. i,N"- 0.) 447.) . Wheu the allegations of a complaint constitute but one cause of action, the tact that au allegation commienoes " and for a further cause of action," wDl not justil'y 87 41 PROCEEDINGS TO A DECREE. [Book I Scandal and impertinence.] Another important matter to be at- a tlemun'er. (Hillman v. HUlman, 14 How. Pr. 456.) And allegations of fraud iu support of a cause of action, and not made as constituting a separate cause of action, do not make an improper joinder of causes of action. ( Campbell v. Wright, 21 How. Pr. 1. See Meyer y. Van Colletn, 7 Ab. 223; Durant v. Gardner, 10 id. 445: Code, § 167, 17-i.) A complaint is not necessarily bad as constituting more than one cause of action, for the reason that it demands a multiplicity of relief, (Geery v. JVeio York^ Liver- pool Steamship Co/»p<"*.'/. 1-^ Ab. 263,) or assigns several grounds of relief. Thus, a complaint in an action against the directors of a corporation, seeking to charge theui personally with a debt of the corporation, is not to be deemed as uniting several causes of action because it sets forth several grounds, on either of which the dcfeurt- auts would be liable. (Durant v. Gardner, 10 Ab. 445 ; S. C. 19 How. Pr. 94.) S;i where an assiguor of a mortgage assigaed as collateral security for the payment o( his promissory notes, after the collection thereof, brings aa action against the as- signees for the surplus money in their hands, and the surrender of the notes paid, the claim is single and was one cognizable by a court of equity. It cannot be regarded as two distinct causes of action requiring distinct modes of trial, and incapable of be ing joined in a siugle suit. (Gahoon v. The Bank of Utiea, 7 JT. Y. 486.) A court of chancery allows distinct and separate causes of complaint between the same parties to be joined in one suit, unless it is apparent that the defence will he seriously embarassed by confounding diilerent issues and proofs in the litigation. {Nourse v. Allen, 4 Blatch. 376.) InKenneheck 4- C. li. B. Co. v. Portland, rf-c, B. B. Co. (.'i4 Maine, 173,) the rule is laid down that a bill is multifarious only when the diflFereut grounds of action are wholly distinct and each sufficient. But when not wholly distinct, but forming parts of one continuing ti-ansaction, all essential to a proper understanding of the case, the bill is not multifarious. When the object of a bill is single, to establish and to obtain relief for one claim in which all the defendants may be interested, it is not multifarious, although the de- fendants may have diff'ereut and separate interests. (Buf/bee v. Sargent, 23 Maine, 269.) "Where shares in a corporation were transferred by a debtor to his creditor, the latter agreeing " to account for the said shares, or reconvey them," it was held that the bill was multifarious, and that the debtor had no such interest as would enable him to maintain a bill in equity against a third person by reason thereof. {Hervey v. Vcczie, 24 Maine R. 1.) So where a bill against several defendants sought redress for injuries arising out of transactions with them separately at different times, and re- lating to difiereut subjects, it was heldbad fjr multifariousness. (CoeY. Turner, o Conn. 86.) A bill is also bad for multifariousjiess where several plaiutifis demaud re lief as to several matters perfectly distinct and unconnected against one defendant, or where one plaintift' demands relief as to several distinct and unconnected matters against several defendants. But where one general right is claimed by the bill, though the defendants have separate and distinct interests, the bill is not multifa- rious. (Mix V. Motchkiss, li Ooim. 32.) If a claim against several defendants is joined with a claim in which one only of the defendants is interested, and which is wholly disconnected with the claim against all of the defendants, all or either of them may demur for multifariousness. (Swift y. Eckford, 6 Paige, 22.) To render a hill multifaricras, it must contain several good grounds of action which cannot properly be joined in one suit, (Many v. Beekman Iron Company, 9 Paige, 188,) and must contain not only separate and distinct matters, but such that each en- titles the complaint to separate equitable rehef. (Pleasants v. Glasscock, 1 Sm and M. Ch. 17; McCabe v. Bellows, 1 Allen, 269.) The several owners of different tracts of land through which a canal company have constructed their canal, cannot join in a bill against the company charging that the company have taken the plaintiffs land without permission, and done great damage thereby, and that the company is insolvent and praying for an account and an injunc- tion to restrain the company from using the laud. Such a bill is multifariim.s. (Marsellis v. Morris Canal f Banking Company, Saxtou, 31.) So a bUl by one of several heirs for the paitition of real estate, and for a distributive share of persona! estate in the hands of the administrator, is bad for multifariousness in demandin" several matters distinct in their nature. (Carmichael v. Browder, 3 How. Miss. 2.''.2.) But several judgment creditors of the same debtor, where separate executions have oeen returned nulla bona, may join in the same bill to subject and distribute the same common fund. (Bullet v. Slcwart,:\ B. Uimrw,. W^.) And persons holdintr Uistiuct interests uuder tne same title, may ji)iu in a suit lor investigating their equi^ b8 Chap. 1.] PROCEEDIXflS TO A DECREE. 41 tended to in framing a bill, is to see that it does not contain statements tics. {TiJford v. Henderson, 1 A. K. Mavsh, 219.) So a creditor asserting a claim in equity against the defendant, may oomliine Tritli it a claim on account of fraudulent couTcyances made by the defendant. (Halberi v. Grant, 4 Monroe, 580.)' So it is not multifarious to join in a creditor's bill, as parties defendant with the debtor, sev- eral peraons to whom he has coiiveyed distinct parcels of property out of which the plaintitt'soelts satisfaction of his debt, although such persons may have no commcra interest in the several parcels so convej'ed. {Chase v. r. S. 406.) and before noticing the issue; for trial. (Kellogg v. Baker, 15 Abb. 'Z'il.) The motion papai'S should point out the precise parts objected to. (Benedict V. Dake, C How. Pr. 352; Blake v. Eldred, 18 id. 240; Bryant v. Bryant, 2 Kob. 612.) jSTcither scandal nor impertinence, however gi'oss, was ever a ground for demurrer, it being a maxim of pleading that utile per imutile non vitiatur. (1 Ban. Ch. Pr. 357 ; Storv Eq. PL « 26'J ) ; Any statement in a bill which may be material in establishing the general allega- tion tbereiu, or in determining the nature or extent of the relief to which the plain- tiff is entitled, consistent with the case made by the bill, is relevant and cannot be excepted to for impertinence. (Hawley v. Wolverton, 5 Paige, 522.) In a suit by the trustees under a will, for waste committed upon the trust property by a lessee for a short term of years, a statement of the v\&, the death of t>he testator, the probate of the will, by the plaintifts, and their assumption of the trust, cannot be excepted to ibr impertinence. (Ibid.) A statement that the trees cut were appurtement to a house erected by the testator for a country residence, as ornamental trees, and show- ing the situation of the home trees, is pertinent. (lb.) And a statement of the es- timation iu which such trees were held by the testator is not impertineut ; but a state- nieut bv the plaintiff's of their opinion as to the value ol the trees, is impertineut. (I b.) A statement that the iujury was wilful, and committed by the defendant after iiotice of the impcn-tance of the trees, by the oifer of a large reward for the detection of anv person injuring them, cannot be excepted to for impeilinence. (lb.) If a complaint states a good cause of action on a promise to pay absolutely, it will not be held had merely because it contains superfluous allegations which would be appropriate were the actiim founded upon a promise to indemnify. (Hay v. Mall, 28 Liui-b. 378.) Whore a complaint sets out a cause of action on contract, although there 91 41 PROCEEDINGS TO A DhVREE, [Book I. T\hicli charges some person with a crime not necessary to be shown in the cause, {d) To which may be added that any unnecessary allega- ((f) Prac. Reg. 383. are alleaatioiia of fraud therein, this will not render the cause of action non-assigna- ble. {Brady v. Bissell, 1 ji.bb. 76.) In an action calling upon the assignees of an insolvent debtor to account for and pay over the trust funds, the unnecessary and premature allegation in the complaint, that a prior judgment for distribution had been obtained against the assignees by collusion and fraud, does not change the character of the action so as to require that the plaiutiffin such judgment of distribution be made a party to the action. (^Kerr V. Blodfjett, 25 How. 30:3; S. C. 16 Ab. 137.) As to the present practice in England, respecting impertinence, it is enacted by section 17 of the 15 and 16 Vict. ch. 86, that " the practice of excepting to bills, answers, aud other proceedings in the said coni't for impertinence, shall bo, and the same is hereby abolished : provided always, that it shall be lawful for the court to di- rect the costs occasioned by any impertinent matter introduced into any proceeding in the said court, to be paid by the party introducing the same, upon application being made to the court for that purpose." And by the 30th order of August, 1852, it is directed that the application to be made for the costs of any impertinent matter introduced into any bill, answer, &o., is to be made at the time when the court dis- poses of the costs of the cause or matter, and not at any other time. (1 Dan. Ch. Pr. 357 ; Dufmir v. Siffel, 4 De Gex, M. and G. 520.) In the United States courts it is required that " every bill shall be expressed in as luief and succinct terms as it reasonably can be, and shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments, in lineo verba, or any other impertinent matter, or any scandalous matter not relevant to the suit. If it does, it may on exceptions be referred to amaster, by any judge of the court, for im- pertinence (U' scandal, and if so found by him, the matter shall be expunged at the expense of the plaintiiij and he shall pay to the defendant all his costs in the suil; up to that time, unless the couit, or a judge thereof, shall otherwise order. If the mas- ter shall report that the bill is not scandalous or impertinent, the defendant shall be eutitled to all costs occasioned by the reference.'' (Equity Rule, 26.) In New Hampshire, it is provided by rule of court, that " every bill and answer shall be expressed as concisely 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." (Rale of Chanoery, 4 ; 38 N. Hamp. 606.) " The idle repetitions ' your orator farther complains,' ' yonr orator further showeth to your honors,' and the like, in bills ; aud this ' defendant further answering, saith,' and the like, in answers, shall be omitted. Where the names of parties are omitted, they shall be referred to as plaintitfs or defendants." (Ibid; Rule 7.) An exception for impertinence will be overuled if the expunging of the matter excepted to will leave the residue of the clause, which is not covered by the excep- tion, either false or wholly unintelligible. (Mclntyre v. Trustees of Union Coll-ege, 6 Paige, 239.) In the United States courts, Rule 27 in Equity, directs that "no order shall be made by any judge for reterring any bill, answer, or pleading, or other matter or proceeding depending before the court for scandal or impertinence, unless excep- tions are taken in writing aud signed by counsel, describing the pai-tioular passages which are considered 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. And such order, when obtained, shall be considered as abandoned, unless the party obtaining the order shall, without any un- necessary delay, procui'e the master to examine and report for the same on, or before the next succeeding rule day, or the master shall certify that further time is neces- sary for him to complete the examination." Disparaging or abusive words are not scandalous in an equity pleading, unless they are also impertinent. (Henry v. Henry, Phill. (N. C.) Eq. 334.) 'rhe Code contains no authority for excepting to a complaint for scandal or im- pertinence; but section 160 provides that if irrelevant or redundant matver he. in- serted in a pleading, it may be stricken out on motion of any person aggrieved thereby. And when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge (u- di^fence is not apparent, the court may requu-e th'!, pleading to be made definite and certain by amendment. 93 Chap. 1.] PROCEEDTNGS TO A DECREE. 4J[ , tion bearing cruelly upon the moral character of an individual, is also scandalous, (e) Impertinence is the same kind of fault in pleadings in equity which in those at common law is denominated surplusage. This at law, taken in its largest sense, includes the introduction of unnecessary matter of whatever description, and includes the admission of matter wholly foreign, as well as of matter, which though not wholly foreign, does not require to be stated, or which, if stated, should be stated with conciseness. (/) It is not impertinent in a bill amended after answer, to adopt the language of the answer, and set forth its averments by way of pretence, with a charge to meet them, [g) In a bill to remove a trustee, it is not scandalous or impertinent to challenge every act of the trustee as misconduct, nor to impute to him corrupt or improper motives in the execution of his trust; nor to allege that his conduct is the vindictive consequence of some act on the part of the cestui que trust, or of some change in his situation. But it is impertinent and may be scandalous to state any circumstances as evidence of general malice or personal hostility; because the fact of malice or hostility, if established, affords no necessary or legal infer- ence that the conduct of the trustee results from such motives, and because such a course tends to render a bill in equity an instrument of inquisition into the private life of every trustee. (A) Setting out deeds and documents.^ The 17th rule of the court *authorizes certain deeds or instruments in writing to be read [ *43 ] upon a hearing on bill and answer, provided they are stated or set out in the bill of complaint. It has been decided, under this rule, that in order to enable the complainant to read such documents at the hear- ing, the complainant must not only set out the deed or other instru- ment in his bill, but that he must also state therein that it has been duly acknowledged or proved, in such a manner as to entitle it to be read in evidence without further proof. (Iih) (13) (14) (15) (e) Coffin V. Cowper, 6 Ves. 514. (/) Steph. on PI. 422. (o) Seeley v. Boenm, 2 Mad. 176. (A) Earl of Portsmouth v. Pellows, 5 Mad. 450. (M) Latting v. Hall, 9 Paige, 3S3. (13) Iekelevanct or redundancy. The Code (section 160) provides that if irrelevant or redundant matter be inserted in a pleading, it may be stricken out, on motion of any person aggrieved thereby. Irrelevancy, in pleading, as used in the Code, like impertinence as used in Chancery Practice, comprehends both prolixity, or needless details of material matter, and mat- ter out of which no cause of action or defence could arise between the parties in the particular suit. (The Lee Bank v. Kilching, 11 Abb. 435 ; 8. 0. 7 Bosw. 634.) Matter is irrelevant which has no beaiing on the subject matter of the controversy, 93 42 PROCBEDINaS TO A DECREE. [Book I. SECTION V. BY WHOM, AND HOW, BILLS ARE DEAWN. Unless the complainant intends to appear in person and conduct the proceedings himself, the first step to be taken by him, on instituting a aud cannot affect the decision of the court. {Fabricotti v. Launitz, 1 Code R., X. S. Vi\ : Stafford v. Mayor of Albany, 6 John. iS ; Van liensselaer v. Brice, 4 Paige, 177; Lee Bank y. Kitching, 11 Abb. 425; Cahill v. Palmer, 17 id. 196; Dovan v. JJinsmore, 3;i Barb. 86.) But it is not irrelevant if material only as affecting the damages. (Root Y. Foster, 9 How. Pr. 37) ; or the costs. (Van Rensselaer v. Briee, 4 Paige, 177.) Hence, the true test of the materiality of averments sought to be struck out is, to inquire whether such averments tend to constitute a cause of action or defence ; if they do, they are not irrelevant. (Iiigersoll v. Ingersoll, 1 Code K. 102 ; AocriU v. Taylor, 5 How. Pr. 476 : Afinor v. Terry, 6 id. 208 ; Qmntard v. Xewtou, r> Kob. 72; Voorhies' Code, 10 ed. 247.) Where the plaintiff ha^ an option either to sue on contract or tort, and he elects to sue on contract, in the form for money received to the plaintiff's use, all allega- tiims as to fraud on the part of the defendant, in reference to the alleged cause of action, are redundant and irrelevant. (Sellar v. Sage, 12 How. Pr. W.\\ ; 13 id. 230 ; Lee V. Eli-ax, 3 Saudf. 130 ; Field v. Morse, 8 How. Pr. 47 ; and see Lamorcaux v. Atlantic ilu. Ins. Co. 3 Duer. 681.) Where a complaint, after stating the facts, proceeded : "Whereupon the plaintiff became entitled to the possession of the said note," the court said, '• It was probably not necessary to state tliis conclusion upon the facts stated ; but it can do no harm." (Decker v. Matthews, 12 S". T. 321 ; Gould v. Williams, 9 How. Pr. .51 ; St. John v. Griffith, 1 Abb. 40; Meyer y. Collen, 28 Barb. 230); and see Lee Banlcy. Kitchiiig, (7 Bosw. 664, 11 Abb. 439) ; aud Bridge v. Payson, (5 Sandf. 216) ; where such an allegation was held to be irrelevant. Where a complaint avers that a second contract between the parties was executed "in lien" of the first, but fails to show that any important rights had intervened between the maldng of the two contracts, making it necessary to sue upon the first, all the allegations respecting the original agreement will be stricken out of the com- plaint, on motion, as being irrelevant and redundant. (Chesebroiigh v. The X. T. .f- Frie Railroad Co. 26 Barb. 9.) So, if facts sufficient to constitute a cause of action for equitable relief, and a series of iuterrogatories like a creditor's bill of discovery are stated in a complaint, the latter matters are not deniun-able, but can be stricken out as irreleA'aut. (Bank of British North America y. Suydam, 6 How. Pr. 379; S. C. 1 Code Eep., N S. 325. Aud where a count iu a complaint sets out no cause of action, but is argumentative a^ regards a previous count, it will be stricken out as iiTelevant and hypothetical. (Hunter y. Powell, 15 How. Pr. 221.) If a complaint asks for relief not warranted by the facts set forth therein, the defendant may, on motion, have such irrelevant claims for relief struck out. (Lord v. Vreeland, 13 Ah. 195; S. C. aff''d. 15 id. 122 ; 24 How. Pr. 316.) In an action against a tmstee of a manufacturing corporation, to charge him with a debt due from the company to' the plaintiff, on the ground of the failure and neglect of the company to file their aimual report as required by law, allegations in the complaint, that the plaintiff has recovered judgment against the company, for said debt, and issued execution thereon, which iias been returned unsatisfied, will be stricken ont as irrelevant. (Weyniouthy. Dimock, 41 How. Pr. 92 ; McHenry v. Easti^ian, 35 id. 207.) A needless repetition of material averments is redundancy; although the facts averred, so far fnmi being irrelevant, may constitute the whole cause of action. (Bowman V Sheldon, ^ Sfwdt 660.) It is matter which might be proved under a general denial, and is not irrele^'aut. (SoUenbeck y. Clow, 9 How. Pr. 292.) In Tniscott V. Dole, (7 How. Pr. 221,) the words " as the plaintiff is informed and believes," in a verified complaint, were stricken (mt as redundant. Irrelevancy and redundancy are not (equivalent terms. Although matter which i^ irrelevant is also redundant, yet the C(mverse is not true. (Voorhies' Code, 10th ed. 246.) 94 Chap. 1.] .PROCEEDINGS TO A DECREE. 42 suit ia chancery, is to employ a solicitor and counsel to commence "When a pleading is iiTelevant, or reduadant, the romedy is by motiim, to stvilie tVom it tbe irrelevant or redundant matter; aad uot by demarrer. ( IFatson v. Hrns- soit, 1 Duer, 242; S^jhs v. Access. Transit Co. 5 id. 663 ; Boeder v. Oniisby, IS Abb. 3:i4 ; Smiths. G-reeniii, 2 Saadf. 711 i; Chesebrough v. The xV. Y. cj- Erie Railroad Co. 26 Barb. 9 ; The Lee Bank v. Kitching, 11 Abb. 435 ; Meyer v. Van Gollem, 28 Barb. 230 ; Ward v. JVard, 5 Abb., X. S. 145.) An entire pleading cannot be strnok out as irrelevant or redundant. (Benedict v. Dake, 6 How. Pr. 352 ; Xichols v. Jones, id. 355 ; SiM y. Smith, 8 id. 150 ; Sowell V. Knickerbocker Life Insurance Company, 24 How. Pr. 475 : Blake v. Eldred, 18 id. 240 ; Fasnaaht y. Stahn, 5 Abb., jST. S. 338 ; 53 Barb. 650 ; Collins v. Coggill, 7 Rob. 81.) Omitting to move to strike out irrevelant or redundant matter is an admission that the defendant understands tbe nature of the charge, and is prepared to meet it {Qnintard v. Newton, 5 Rob. 72.) A ccrai plaint will not be dismissed at the trial be- cause it contains irrelevant or redundant matter. (Simmoiids v. Eldridge, 19 Abb. 296 ; Smith v. Goimtryman, 30 jST. Y. 655.) Motions to strike out parts of a pleading as IiTelevant or redundant, are substitutes for special demurrers, {Kellogg v. Baker, 15 Abb. 287; Lee Bank v. Kitching, 11 id. 439 ; 7 Bosw. 664.) or for exceptions for impertinence under the former practice in chancery. (Benedictv. Dake, 6 How. Pr. 352; Carpenter v. West, 5 id. 53; Blake V. Lulred, 18 id. 240 ; Esmond v. Bensohoten, 5 id. 44.) They are not to be encour- aged. (Moloney v. Dows, 15 How. Pr. 261.) Matter, though clearly redundant, il uot tending seriously to prejudice the opposite party, or encumber the record, will not be stricken out." The opposite party is not in such a case aggrieved. {Clark v. Harwood, 8 How. Pr. 470 : White v. Kydd, 4 id. 68 ; Synd-s v. Griswold, 4 id. 69 ; Sarlow V. Hamilton, 6 id. 476 ; Brockelman, v. Brandt, 10 Abb. 141.) Yet it has been said that a party is aggrieved by every unnecessary allegatiou. (Carpenter v. West, 5 How. Pr. 53 : Isaac v. Velloman, 3 Ab. 464.) And again, " If the matter can- not be made the subject of a material is-;ue, or affect the question of an injunction, or costs, or other relief to be granted, and embarasses the opposite party and the coui't, it has no business in the pleading." (Martin v. Kanouse, 2 Ab. 331 ; Aubrey v. Fiske, 1 Trans. App. 246. See also Farmers' Bank of Long Island v. Sherman, 6 Bosw. 181 ; 30 iST. Y. 655 ; Rensselaer Plank Road Company v. Wetsel, 6 How. Pr. 6S ; Stewart v. Bonlon, 6 id. 71.) And in Isaac v. Velloman. (3 Ab. 464,) it was held by the ifew York Common Pleas that irrelevant and redundant matter may be stricken from a pleading witbout its being shown that it aggrieves a party, otherwise than to compel him to answer the objectionable matter. The motion to strike out parts of a complaint as irrelevant must be made before demurring to, or answering the complaint, and within twenty days from the service thereof, (New York Ice Company v. Northwestern Insurance Company, 12 Ab. 74,) and before noticing the issue for trial. (Kellogg v. .Bafce?-, 15 id. 287.) The party moving should specify clearly what porti(m of the complaint is objectionable, as un- der the old practice of exceptions for impertinence. (Botedici v. i)a7i;«, 6 How, Pr. 352; Blake v. Eldred, 18 id. 240 ; Bryant v. Bryant, 2 Rob. 612.) If a complaint is obnoxious to the objection of redundancy, the redundant matter should be so clearly pointed out by the defendant in his notice of motion, that the court may put its lino-er upon it. (Bryant x. Bryant, supra.) It is no objection to the motion that the moving party does not show affirmatively, that he noticed his motion in time. If the notice was not served in time, the plaintiff may show that fact in opposition to the motion. (Bar.ber v. Bennett, 4 Sand. 705.) A stipulation extending the time to answer, and to make such application as the defendant shall be advised, operates to extend the time for moving to strike out mat- ter in the complaint as irrelevant or redundant. (Lackey v. Vanderbilt, 10 How. Pr. 155.) By noticing a cause for trial, a party waives the right of moving, subsequently to strike out redundant matter from his adversary's pleading. (Ermond v. Van Benchoten. 5 How. Pr. 44 ; Marry v. James, 34 id. 238.) So obtaining an order ex- tending the time to answer, is a waiver of all objections to the complaint, and a baa- to a motion to strike out irrelevant matter, unless the right to make the motion is expressly given. (Bowman x. Sheldon, 5 Sand. 657; see Milnv. Vose, i id. 660.) If, after notice of motion to strike out parts of the complaint, the defendant serves his answer, he thereby waives his motion. (Goch v. Marsh, 8 How. Pr. 439.) Irrelevant and redundant matter will be stricken out of a complaint for a, cause of action for the .ccraversion of personal property. (Moffatt v. Pratt. 12 H()w. Pr. 4-i.) So a complaint containing six counts, similar to a declaration under the former prau- 95 42 FROCEEDIXGS TO A DECBEP;., [Book I. tioiN not being alldwud by the Code, on motion, five of them will he stricken out, with costs of the motion. {Stookbrhlge [roii Company v. Mellen, 5 How. Pr. 439.) Tlie rule in regard to striking out redundant matter is, that unless it is clear thiit the facts alleged cannot properly be received in evidence, snch matter will be ri^- tained until the trial. (FoUett v. Jewitt, 10 H. Y. Leg. Obs. 193; S. C. 2 Liv. Law Mag. 189.) In an anonymous case in 2 Saudf. 682, the court said that on a motiou to striifc matter out of a pleading as irrelevant, redundant or frivolous, it would be governed by the oousideraticm whether it was in any way questionable as to the mat- ter being good in point of law. If there were any reasonable doubts as to the matter being pertinent, the party should be put to his demurrer. That in respect to matter palpably redundant or frivolous, the court would strike it out of course. Where a complaint states a good cause of action, and then proceeds to state addi- tional, redundaut or improper matters, a motion to strike out such matters is a proper remedy. (Meyer v. Van CoUein, 26 Barb. i!30 ; S. G. 7 ^bb. 222.) Redundancy in words will not justify the court in striking out a part of a pleading, unless the mat- ter is redundant or irrelevant. ( IVarren v. Stniller, 11 lif. Y. Leg. Obs. 94.) Prom an order denying a motion to compel a party to make his pleading more definite and certain, and to strike out irrelevant and redundant matter contained therein, an appeal does not lie. {Field v. Masterton, 41 How. Pr. 95.) (14) Indepiniteness or Uncertainty. Section 160 of the Code also provides that when the allegations of a pleading are so indefinite or uncertain that the precise nature of a charge or defence is not appa- rent, the court may require the pleading to be made defini te and certain by ameud- mput. The motion, under this section, to make a pleading more definite and certain, is a substitute for a special demurrer. {Kellogg y. Baker, 15 Abb. 286.) Amotion to make a pleading more definite and certain by setting forth the contents of a written instrument relied on by the pleader, should not prevail, where it appears that the instrument is lost, and the pleading apprises the adver.se party of the nature and effect of the instrument. {Kellogg v. Baker, 15 Abb. 286.) The omission to move that the complaint bo made definite and certain is an admis- sion that the defendant understands the nature of the charge, and is prepared to meet it. {Qulntard v. Newton, 5 B,ob. 72.) The indefiniteness and uncertainty to be relieved against on motion is only such as appears on the face of the pleading. {Brown v. Southern Mich. B. B. Co. 6 Abb. 237.) The objection to a complaint ou the ground that it is indefinite and uncertain, must be taken by motion, under the above clause of section 160 of the Code, and not by demurrer. {Chesehrough v. Tlie JT. Y. ^ Erie B. B. Co. 26 Barb. 9 ; Seeley v. EngelL 13 X T. 542; Smith v. Greenin, 2 Sandf. 702; Bichards v. Fdick, 17 Barb. 260; Graham v. Camman, 5 Buer. 697 ; Village of Warren v. Philips, 30 Barb. 646.) The indefiniteness and uncertainty to be relieved on motion is only such as appears on the face of the pleading. {Broiin v. Southern Mich. B. B. Co.H Abb. 2.37.) Wherever the pleader desires to show a conclusion diff'erent from that which the law would, prima facie, draw, he must state the facts which remove such prima facie conclusion ; but if, instead of stating the facts, the pleader merely states the conclusion, the fault is uncertainty, not insufficiency, and the remedy of the opposite party is by motion, to have the pleading made certain, by amendment. {Martin v. Kanouse, 11 How. Pr. 568; 2 Abb. 327. See Eno v. Woodworth, 4 JST. T. 253) The time stated in a pleading is often not material ; that is, it may be departed from, in evidence ; but allegations in respect to time, like all other allegations, are evidence against the party making them, as his admission. {Andreu}s v. Chadbourne, 19 Barb. 147.) But if the time when a fact happened is material to constitute the cause of action, it should undoubtedly be stated. The fact, without the time, would be insufficient to constitute the cause of action ; but if the time is immaterial, a demurrer will not lie for omitting to state it. {The People ex rel. Crane y. Byder, 12 N". T. 439; Barnes v. Matteson, 5 Barb. 375.) Thus, where the complaint alleged that at an election legally held iu the county of P., pursuant to the statute, for the election, among other officers, of a county judge for such county, for the term of four years from the 1st day of January, 1852, the relator received a majority of the votes given for the office of county judge, and was legally elected to such office, for such term, it was held, on demurrer, that the complaint stated facts sufficient to show that the relator was entitled to the office and properly made a party. And that if the time when the election was held was not sufficiently stated, by this allegation, the remedy was by motion to have it made more definite, and the objection was not available ou demurrer. (16.) Where it is important to show that a particular fact, 96 Chap. 1.] PRocEEorNOs to a decree. 42 alleged ia a pleading, ooouvred after the happening of some other event, it is, in most oases, sufficient to allege that such fact oocurred after suoh other event. {Mar- tin V. Kamuse, 2 Ab. 3:^1 ; Kellogg v. Baker, 15 id. 287. See Brown, v. Harmon, 21 Barb. 510 ; Beesley v. Dolby, 6 Bing. N. 0. 37 ; Toorhies' Code, 10th ed. 248.) But an allegation that the plaintiff was not advised of fraud until long after, is uncer- tain. (Johnson v. Johnson, 5 Ala., JS". S. 101. And see Bertine v. Varian, 1 Bdw. 343.) An allegation, in a complaint, that the plaintiff " afterwards, to wit," on a day specified, paid certain mcmeys, does m)t preclude him from showing that the payment was made at an earlier day, for the purpose of claiming interest. (Lyon v. Clark, 8 N". Y. 418. See Dubois v. Beaver, 25 H. T. 123.) An omission to allege the time and place at which an act stated in a pleading was done, does not render the pleading insuffloient, or demarrable. {Carpenter v. Broion, 6 Barb. 147. See Beach v. Bay State Co. 10 Abb. 71 ; Ryalls v. Bramall, 1 Ex. 734.) Although when one agrees to sell and deliver at a particular place, and the other agrees to receive and pay, an averment by the purchaser of a readiness and willing- ness to receive and pay at that place, ia case he sues for a non-delivery, is indispensa- ble to a good complaint, {Clark v. Dales, 20 Barb. 65), yet, if ia such aca.se, the complaint alleges a general readiness and willinguess on the part of the plaintili' to perform his part of the ooiitraot, this would imply a readiness aad willingness to per- form at the particular place. ( Voorhies' (Jode, 10th ed. 248.) The omission of the first names of persons in pleadings, (aaless excused by aver- ment,) makes the pleading indefinite and uncertain. {Appleinans v. Blanclie, 14 M. and W. 154 ; Esdale v. McLane, 15 id. 277.) The following allegations have, in the cases mentioned, been held not sufficiently certain : That the plaintiff was duly appointed administrator, {Beech v. King, 17 "Wend. 17 ;) or receiver, {GiUet v. Fairchild, 4 Dcnio, Si ; White v. Joy, 13 N". T. 86 ;) that referees duly made tteir award, {Eoerand \: Patterson, 6 Taunt. 645, 2 Marsh, 304 ;) that an act was done "in due course of law," {Carrie v. Henry, 2 Johns. 437; ) or in a '' suspicions manner," {Muir v. Kaye, 4 Taunt. 31 ;) or " according to statute," {Walker v. Maxwell, 1 Mass. 104 ;) or "contrary to statute," {Smith v. Lockwood, 13 Barb. 209 ;) that the defendant had made "repeated aoknowledgmeuts," {Bloodgood v. Bowen, 8 jS". T. 365 ;) that " by virtue of a certain writ or other warrant," (1 Saund. 298, note 1 ;) that the plaintiff was "compelled to pay," {Packard v. Hill, 7 Cow. 442, 1 Wend. 209 ;) that S. " failed to fulfil his obligations by virtue of said in- strument," ( Van Schaack v. Wimie, 16 Barb. 95 ;) that each plaintiff is a creditor " in the sum of $100 and upwards," {Gray v. Kendall, 5 Bosw. 668 ;) that A. is a creditor on " several promissory note.s of said firm," (id.) ; that services and materials were done and supplied " at the times and about the matters, and at the prices specified in an account already delivered," {Farcey v. Lee, 10 Ab. 143;) that a judgment obtained in the name of another " belongs to the plaintiff," {Martin v. Kanouse, 2 Ab. 327 ;) that " the plaintiff, at the defendant's request, rendered to the defendants other ser- vices as agent, for which he is entitled to have, as a fair reward, jp50 ; also for work, labor and services fiu'uished by plaintiff's for defendants, {Chesebrough v. New York / jirieBailroad Company, V.i Row. Pr. 567 ;) t'auts anticipating and avoiding the do- fence of the statute of limitations. {Butler v Mason, 5 Ab. 40.) Less definiteness and certainty is required when the facts lie more in the knowl- edge of the opposite party than the pleader. This was the rule previous to the Code. (Steph. PL 370.) If the pleader alleges that he is heir, he must show his pedigree, and how he became heir ; but if he alleges that his opponent is heir, that is sufficient without more. (2 Saund. 7, o. note. See St. John v. Northrup, 23 Barb. 26 ; liich- ards V. Edick, 17 id. 270.) In alleging the opposite party to be an assignee, it is not nooessarv to state how he became assignee. (Norton v. Vultee, 1 Hall, 384.) In Nellis Y. De Forest, (16 Barb. 67,) a policy of insurance in possessicm of the op- posite party was held to be described with sufficient certainty where it stated tlie names of the insurer and the insured, that it was on furniture in the defendant's tavern in K., and that it was for $1,000. So where the complaint stated the cir- cumstances under which the defendant made an assignment for the benefit of credi- tors, and set forth the whole assignment, and then alleged that the assignment was fraudulent and void on its face, and was made to hinder, delay, and defraud creditors, it was held sufficiently definite and certain, and that it was not necessary to state why it was fi-audnlent and void cm its face. (Hastings v. Thurston, 18 How. Pr. 530 ; 1 Ab. 418.) In Slowmanv. Schmidt, (8 Ab. 5,) the complaint stated that at a specific time, the defendants received, as ageats of the plaintiff, from a person named, cer- Vol. I.— 7 97 42 PKGCEEDINGS TO A DECREE. [Book I. and conduct it on his behalf. (16) Though the complainant has a right to appear in person, and manage his cause without the assistance of a solicitor or counsel, yet it is not usimI for a party to appear in person, unless he is himself a solicitor, at least, of the court. Nor woiild it be quite safe, indeed, for a complainant, not familiar with the practice tain sums of money, amounting to a specified sum, and then stated a demand of payment and refusal. This was lield neither indefinite nor uncertain. Allegations in respect to quantity are rarely necessary, unless the subject of the averment is a record, a written instrument, or an express contract. ( Van Renaselaer V. Jones, 2 Barb. 643.) A party canuot on the trial object to a pleading as indefinite or uncertain. {Farm- er^ Bank of Long Island v. Sherman, 6 Bosw. 181 ; 30 N". T. 655. See Martin v. Kanouse, 2 Ab. 331.) From an order to make a pleading definite and certain an appeal lies. (Arrieta v. Morrisey, 1 Ab., JT. S. 439.) The operation of the order may be suspended during the appeal bj' a stay of pi-oceedings. {Culver v. Hollister, 17 Ab. 405.) In Meld V. Stewart, (41 How. Pr. 95,) however, it was decided by the Superior Court of New York that an appeal does not lie from an order denying a motion to compel a party to make his pleading more definite and certain, and to strike out irrelevant and redundant matter contained therein. (15) StrpPLEMBNTAL COMPLAIHT. See note to Supplemental Bill, Post, vol. 2, p. 59. (16) In New York, since the abolition of the court of chancery, there are no longer any solicitors. Business in the courts, in equity oases, as well as those at law, is now conducted by attorneys. Their examination and admission are regulated by rale of court. (See Rules 1, 2.) As to the rights, duties, and responsibilities of attorneys, see Townsend's and "Wait's notes to rales of Supreme Court, 1 and 2 Toorhies' Code, 10th ed., 694, 695 ; Wait's Code, 8^2, 8;i3, 824. Eule 10 of the Supreme Court requires that on process or papere to be served, the attorney, besides subscribing or indorsing his name, shall add thereto his place of business ; and if he shall neglect to do so, papers may be seiTed on him at his place of residence, through the mail, by directing them according to the best infor- mation which can conveniently be obtained concerning his residence. This rule ap- plies to a party prosecuting or defending in person, whether he be an attorney or not. An attorney may be changed by consent, or upon cause shown, and upon such terms as shall be just, upon the application of the client, by the order of a Justice of the Supreme Court, and not otherwise. (Rule 15.) It has been decided that a client has a right to change his attorney at pleasure, on payment of his fees. (Hazlett v. G-ill, 5 Rob. Ill ; Ifolf v. Trochelman, lb.) The change, however, should only be by order of the court. {Ibid.) The court, in the absence of .any agreement as to the amount of costs, will not order a substitution of an attorney ou payment of the taxed costs only, but will allow the attorney such further compensation as under the circumstances is proper. (CregierY. Cheesbrough, 25 Ho.w.. Pr. 200,) On the substitution of an attorney, where the attorney alleges tliat, subseguent to the judgment, his client assigned it with a view to defeat the at- torney's hen, the attorney may have a reference to ascertain his lien cm the judg- ment for taxed costs, without prejudice to his rights as against the assignee. {Rich- ardson V. Brooklyn Railroad Company, 24 How. Pr. 321 ; id. 480 ; 15 Ab. 342, u.) Rule 17 of the Superior Court of New Tork, provides that no ex parte order for the eubstitution of an attorney for either party shall be granted, unless upon the consent in writing, signed by the party and his attorney, duly acknowledged or proven by affidavit. Upon the substitution of an attorney, it is sufficient to serve notice thereof. The order of substitution need not be served. {Bogardus v. Richtmeyer, 3 Ab. 179 ; Dorian v. Lewis, 7 How. Pr, 132.) Until an order of substitution is entered, and notice thereof served, the opposite party may treat with the original attorney. iJBarker v. City of Williamsburgh. 13 How. Pr. 2.50.) ilf a party has an attorney in the action, service of papers must be made upon the attorney instead of the pajty, .i, are spec-a-ly provided for. (1 Estee, Pr. 188.) 105 44 PROCEEDINGS TO A DECREE. [Book I. tliat as to those matters he believes it to be true. And the substance of the oath administered must be stated in the jurat, {v) The following is the form of a jurat to a bill under the above rule of court: State of New York, ) Saratoga county, j On this day of > 18 . . , before me personally appeared the above named A. B. and made oath that he has read the above bill subscribed by him, (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 information or belief, and as to those matters he believes it to be true. C. D., master in chancery. Where a corporation aggregate is complainant, the bill, from the necessity of the case, must be verified by some oflBcer or agent of the corporation, (w.) Bills which are to be verified by the oath of an agent or attorney for a complainant, should be drawn in the sajne manner as bills which are to be sworn to by the complainant himself; stating those matters which are within the personal knowledge of such agent or attorney [ *45 ] positively ; *and those which he has derived from the infor- mation of others should be stated or charged upon the information and belief of the complainant. And the oath of the agent or attor- ney verifying the bill, should state that the agent has read the bill, or heard it read, and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters which are therein stated to be on the information and belief of the complainant, and that as to those matters the deponent believes it to be true, {x) The jurat should not be drawn in the form of a separate affida- vit, {y) In verifying a bill, under the 17th rule, for the mere purpose of calling for an answer on oath, it is not necessary that the allegations in the bill should be sworn to positively. It is sufficient if the per- son verifying the bill swears to his belief of the charges contained in it. {z) (u) Rjile 18. tw) Bank of Orleans v. Skinner, 9 Paige. 30.5. (a:) Bank of Orleans v. Skinner, 9 Faige, 305, iy) Stafford v. Bryan, 2 Paige, 46. (2) Veeder v. Moritz, 9 Paige, 371. See further as to jurats, post, Chap. VI. Sec. 5. (Book I.)— jurats to answers. 106 Chap. 1.] FSOCEJSDINOS TO A DECREE. ^5 SECTION" VII. KtrjfBBEIIirG AND MAEKIKG FOLIOS, ENDOESIlSrQ, A.TSJ) FILING. JVumbering and marking folios.] The solicitor or counsel who draws a bill must distinctly number and mark each folio (of 100 words) in the margin thereof; (31) and all copies, either for the parties or the court, must be numbered or marked in the margin so as to conform to the original draft, and to each other. Wo allowance will be made on taxation of costs for copies not thus numbered and marked, {a} It is not necessary to number the pages of the bill, in addition to number- ing the folios. The word folio was formerly used to denote a page, and it may be conveniently employed for that purpose still. Endorsing.] The register and assistant register are required, by rule, to keep the papers filed before the chancellor separate from those filed before a vice chancellor. And to enable them to do so, the solici- tor filing a bill or other paper must designate, on the back thereof, whether it is filed "before the chancellor" or "before the vice chan- cellor." {])) As bills and petitions are addressed to the chancellor, in all cases, the marking of the paper in conformity with this rule is the only *mode of determining whether it was the intention of the [ *46 ] party to institute his proceedings before the chancellor or before the (o) Mule 95. (J) Kule 7. (21) Eule 26 of the Supi-eme Court requires that any pleading, &a., exceeding two folios in length, shall be distiiiotly numbered and marked at each folio in the margin thereof ; and all copies, either for the parties or the court, shall be numbered or marked in the margin, so as to conform to the original di'aft or entry, and to each other. If not so folioed, &(i., the clerks shall not file the same; nor will the court hear any motion or applicatiim founded thereon. But the party on whom any paper is served will be deemed to have waived any objection, unless he returns the same within twenty-four hours to the party serving the same, with a statement of the par- ticular objection to its receipt. The omitting to folio a pleading, is to he remedied by a motion to set aside the pleading, not bj demurrer. {^Dorman v. Kellam, 14 How. Pr. 184 ; S. C. 4 Ab. 20i ; Basn V. Comstoch, 38 N. T. 21.) The proper course to pursue when the party objects to a pleading (m this ground, is to return the pleading, and at the same time to point out the defect. If this is not done within a reasonable time, it will be held that the irregularity has been waived. {Strauss v. Jfarker, 9 How. Pr. 342.) A complaint will not be set aside, although neither that nor the copy served is folioed as required by the rule, if retained twelve days without objecting to the defect. Such acceptance and delaying to object, waive the effects. (Chatham BatiJc V. Vati Veghten, 5 Duer.. 628.) A motion to set aside the complaint im this ground will be denied, when the moving papers are obnoxious to the same objection, VIZ. : that the folios are not marked and numbered. {Sawyer v. Sohoonmaker, 8 How. I'r. 198.) "When a party returns a paper as iiTegular, he must state his objections to it ex- plicitly. A mere statement that the service is irregular, and not in compliance with certain specified sections of the Code, is not sufficient. (Chemung Canal Bank v. Judson, 10 How. Pr. 133; Broadway Bank v. Danforth, 7 id. 264.) 107 ^g FKOCEEDINGS TO A DECREE. [Book T. vice chancellor, when the bill is filed in the first or third circuits. And the court has decided that in case of dispute as to the person before whom the suit is instituted, the marking of the bill or petition must determine the question, (c) (33) In the entitling and endorsement of papers by either party, the com- plainant's name must be placed first. (fZ) The endorsement upon the back of a bill is in this foi-m : In chancery Before the chancellor, (or. Before the vice chancellor of the circuit.) John Eodgers V. Timothy Jackson. Bill, J. E. Sol. for comp't. Filing.'] The next step is to cause the engrossed copy of the bill to be filed in the proper office. (33) If the suit is commenced before the (c) 111 the matter of the Eeceivers of the Globe Ins. Co. 6 Paige, 103. ( d ) Rule 95. (22) Rule 26 of the Supreme Court requires that all pleadings shall he indorsed ■with the title of the cause. If not so indorsed, the clerks are forbidden to file the same ; and the court wiU not hear any motion or application founded thereon. But an objection that the pleading is not indorsed wrU. be waived, unless the pleading is returned within twenty-four hom-s. Rule 13 directs that on process or papers to be served, the attorney, besides sub- scribing or indorsing his name, shall add thereto his place of business ; otherwise papers may he served on him at his place of residence, as near as can be ascertained, through the mail. If neither place of business nor residence can be found, service may be made by filing the papers with the clerk. This rule applies to a party who prosecutes or defends in person, whether he he an attorney or not. An attorney or a party having fixed his place of residence-for the purposes of the action, in the manner prescribed by the rnle, service by mail can only be made by him at the place thus indicated, and the opposite party can (mly make service upon him by mail, by addressing him at that place. ( IJiird y. Dams, 13 How. Pr. 57. ) (23) The Code (5 416) requires that the sunmious and the several pleadings in an action shall be filed with the clerk within ten days after the service thereof respec- tively ; or the adverse party on proof of the omission, shall be entitled, without notice, to an order from a judge that the same be filed withm a time to be specified in the order, or be deemed abandoned. "When a party files a pleading in obedience to an order under this section, requiring him to do so, he is not bound to notifv the other party that the pleading has been filed. (,Donoy v. Hoyt, 1 Code Rep., N.'S. 286.) The court will permit a party to file a pleadiug after the time limited therefor in an order to file it, if the omission be explained — as if a copy was inadvertently filed in- stead of the original. (Short v. May, 2 Sand. 639.) The clerks of the several ccrantles of the State are clerks of the Supreme Court, (Const, of 1867-8, Art. VI, J 20,) and with them all the pleadings and proceedings 108 Chap. l.J PROCEEDINGS TO A DECREE. 4(5 chancellor, the bill is to be filed in the office of the register or assistant register. If before a vice chancellor, it must be filed in the office of the clerk of that circuit. If the bill is filed with the register or as- sistant register, all subsequent pleadings and proceedings must be filed with one of them, unless the cause is referred to a vice chancellor. If so referred, all papers filed therein while it remains before the yice chancellor may be filed with the clerk of his circuit. («) (24) (e) Rule S. in an action are to be filed. Enle 3 of the Supreme Court requires that papers shall be filed in the county specified in the complaint as the place of trial. In case the place of trial is chanjjed, the papers then on file, and those aftsrwards filed, shall be tiled in the clerk's office specified in the order, and all other papers in the cause shall be filed rathe county so specified. In aU cases where publication is made, the complaint must be first filed, and the summons, as published, must state the time and place of such filing. (Code, § 135, suh. 5.) It has been held that service by publication is insufficient, unless the com- plaint be filed before pubUoation ; and that the summons as published must state the time and place of filing. A judgment entered upon a service thus defective is a nullity. (Kendall v. Wasliburn, 14 How. Pr. 380 ; Titiis v. Selyea, 16 id. 371 ; 8 Ab. 177.) But in Waffle v. Gohle, (53 Barb. 517,) it was held that filing the complaint was not necessary to the regularity of the judgment, where, after the order for pub- lication, the summons was personally seiTed out of the state. The complaint must also be filed ia cases where a notice of lis pendens is filed ; as that notice is to be filed at the time of filing the complaint, or at auy time after- wards, and is not projjerly filed before. (Code, § Vii.) If notice of Us pendens is filed without a complaint, even though the action have been commenced by the ser- vice of a summons, it is of no validity ; but it becomes operative the moment the complaint is placed on file. (Benson v. Sai/re, 7 Ab. 472.) "Where the complaint was filed on the '2i6. of September, and the summons, dated and published on the 23d of September, .stated — the " complaint has this day been filed" — it was held to be a sufficient compliance with the statute. (Jacquerson v. Fan Erben, 2 Abb. 315.) In Johnson v. Carey, (3 Rob. 710,) an injunction was dissolved, upon the ground, (among others,) that the papers had not been filed, as required by the rules of the ?ourt. The circuit courts of the United States, as courts of equity, shall be deemed always open, for the purpose of flUng bills, answers and other pleadings, and for issuing and returning mesne and final process. (Equity rule 1.; And it is provided, by Equity rule 11, that no process of subpcBua shall issue from the clerk's ofiice, in any suit in Equity, until the bill is filed in the office. In Massachusetts, the plaintiff must file his bili before, or at the time of taking out the subpoena ; and no injunction or other proceeding shall be ordered uutil the bill is filed, uuless for good cause shown. (Rule 3 of the rules for practice in chancery.) In New Jersey, the clerk of the court of chancery is required to keep in his office a docket, in which he shall enter the titles of all suits brought into the court, and a memorandum of every paper filed in the same, under the title of the suit, with the time of fiUng, and the name of the solicitor of each party, and also an alphabetical index to the same ; and the said docket shall be, at all proper hours, accessible to the bar. (Chancery rule 2, § 8. See also rule 11 Supreme Court, jSTew York.) In North Carolina, it seems a suit in equity is commenced when the bill is filed. (McLin, V. McNamara, 2 Dev. and Bat. Ch. Si; Aston v. Galloway, 3 Ired. Ch. l:in.) In New York, the action is commenced by the service of a suinmous. (Code, ^ 9?) ; or, in case of attachment against foreign corporations, when the summons is issued. (Id. $ 227.) (24) Service of Complaint. A copy of the complaint need not be served with the summons. In such case, the summons must state where the complaint is, or will be, filed ; and if the defendant, within twenty days thereafter, causes notice of appearance to be given, and, in person or by attorney, demands in writing a copy of the complaint, specifying a place within 109 47 PROCEEDINGS TO A DECREE, [Book I. *SEOTIO]Sr VIII. WHEK BILL TO BE ACCOMPANIED BY AN AFFIDAVIT. In bills of particular descriptions, it is necessary that an aflBdavit the state where it may be senred, a copy thereof must, within twenty days there- after, be served accordingly, and after such service, the defendant has twenty days to answer; but only one copy need be served on the same attorney. (Code, § 130.) If the summons states that a copij of the complaint has been filed, instead of stat- ing that the complaint has been filed, it is not such an irregirlarity as will vitiate a judgment entered for default of answer. {Mart v. Kramer, 2 Code Rep. 50.) If the complaint is filed, and no copy is served, with the summons, and the summons, instead of stating where the complaint is filed, states that a copy of the complaint is " annexed," the summons will be irregular. (Keeler v. Belts, 3 Code E. 183.) Where the sammous is in the form appropriate for serving the copy complaint, together with the copy summons, the omission to serve a copy of the complaint, or to state, in the summons, the place of filing the complaint, although irregular, will not aifect the validity of the judgment. (Foster v. Wood, 1 Ab., K S. 156; 30 How. Pr. 234.) A summons served without any copy of the complaint is irregular, unless it states that the complaint was, or will Ije, filed. (Pignolet v. Daveaii, 2 Hilt. 584.) The only ease in which the defendant can demand a copy of the complaint is where there has been personal service of the summons, but no copy of the complaint has been served with it. . "Where a defendant has been served by publication, -and a copy of the summons and complaint has been mailed to him, he is not entitled, as of coursCj to demand a copy of the complaiut to be served on him. (Maclcai/ v. Lakllaw, 13 How. Pr. 129.) Several persons may be named in the summons, and the plaintiflF may deliver a complaint against only the one upon whom the process is served, omitting the names of the other defendants mentioned in the summons. {Travis v. Tobias,! How. Pr. 90.) And where oue or more, but not all, ot several defendants have appeared and demanded a copy of the complaint, it need be served upon such only as have ap- peared ; and when several appear by one attorney, only one copy of the complaint need be served. (V"an Sant. Eq. Pr. 118.) A notice of appearance, to which was added, " and I require all papers to be served on me at my office, 11 Wall St.," was held a sufficient demand of the oomnlaint in Ferns V. Soleij, (23 How. Pr. 422,) and Walsh v. Ktirsheedt, (8 Ab. 418.) Where a demand of a copy of the complaint was served for one defendant on the 1st of No- vember, and by the same attorney, for another defendant-on the 9th of November, it was held that the plaintift' was bound to serve a copy of the complaint within tweutv days of the first demand, and that the defendant might move on proof of service ot the first notice and demand, withcmt waiting for the expiration of twenty days from the last service. {Luce v. Trampert, 9 How. Pr. 212.) After demand of a copy of the complaint duly made, the plaintiff may, on showing ground therefor, obtain ' further time to furnish a copy of the complaint. {Littlefleld v. Merwin, 2 Code R. 123; S. C. 4 How. Pr. 303.) But such order cannot be "granted ex parte, after the time for serving the complaint has expired. {Stephens v. Moore, 4 Sandf 674.) And the affidavit upon which the application to extend is founded, or a copy, must be served with a copy of the order ; if not, the order may be disregarded. (C()de, § 405.) In the oa^e of a defendant against whom no personal claim is made, the plaintiff' may deliver to such defendant with the summons, a notice setting forth the general object of the action, a brief description of the property affected by it, if it affects specific, real, or personal property, and that no personal claim is made against such defendant ; in which case no copy of the complaint need be served on such defend- ant, unless within the time for answering, he shall in writing, demand the same. If a defendant on whom such notice is served unreasonably defends the action, he shall I*ay costs to the plaintiff'. (Code, § 131.) The omission of the plaintiff to serve the notice prescribed by this section, does not depriv e the court of the power in equity cases, to award costs against a defendant upon whom a c;)py of the complaint ha^ been served, for unreasonably defendin"- the action. (CC^ftu-ttv. Zi;()p/ty, 24 flow. Pr. 379.) ° 110 Chap. 1.] PROCEEDINGS T^ A DECREE. 47 should be annexed to them, on their being filed. Thus, on a bill of interpleader, there must be an affidavit that the complainant does not collude with any of the defendants. (/) (35) In a bill by a party in a suit at law to examine witnesses de bene esse, there must be ain affidavit that the witness proposed to be examined is of the age of seventy — that the matter to be proved is material, and lies within the knowledge of one person only — that the witness is going out of the jurisdiction, and not likely to return in time to be examined — or the other special circumstances on which it is proposed to apply to the court for leave to examine him de bene esse, (g) (26) In a bill to obtain the benefit of an instrument on which an action at law would lie, alleging that it is lost, or if the bill is filed for the discovery of an instrument, suggest- ing that it is in the power or custody of the defendant, and praying (/) Mitf. Eq. PI. 49. . (g) Atk. Ch. Pr. 4. "When the service of the summons is made by publication, a copy of the complaint must be mailed, pm-suant to the order of pubUoati(m. The defendant has twenty days to answer after the expiration of the time required for publication. But the plaintiflF may expedite the proceedings by making personal service out of the State ; in which case an order for publication must be first obtained, though actual publi- cation need not be made ; and the defendant will have only twenty days to answer after such personal service. (Van Sant. Eq. Pr. 116 : Duker.i v. Woodward. 7 How. Pr.313.) If the complaint has not been serred with the summons, the plaintiff may apply for his judgment at the proper time, without serving any notice or copy of the com- plaint upon the defendant, {Engs v. Ooering, 2 Code K. 79 ; Bennett v. DeUaker, 3 id. 117; Fan Pelt v. Boyer, 7 How. Pr. 32.5,) unless the defendant demands a copy of the complaint, as authorized by section 130 of the Code. (Van Sant. Eq. Pr. 116.) If such notice and demand have been personally served on the plaintiffs attcu'uey, a copy of the complaint must be served within twenty days thereafter. (.Ih.) If, however, the notice has been served by mail, the plaintiflfs attorney will have forty days. (Code, ^ 412.) The mode of making service of the complaint is governed by the general provi- sions of the Code relative to the service of papers. (Sections 40S to 413.) The copy must be served personallj', or in the manner prescribed in section 409 of the Code, unless the person making the service, and the person to be served, reside in different places, between which there is a regular commuuication by mail ; in which case it may be by mail. (Code, § 410.) Bj the " person making such ser- vice," is meant the party (if he appear iu person,) or his attorney, and not au inter- mediate agent employed by the attorney. .And a service by such agent in a different town from that in which the attorney resides, is not regular, or any service at all, ex- cept from the time the paper is actually received. The Code requires that there shall be regular communication by mail between the two places, to make such service available. (Schenclc v. McKie, 4 How. Pr. 246 ; Peebles v. Rogers, f. id. 208.) (25) See Story Eq. PI. ^« 304, 309 ; Phillips v. Carew, 1 P. "Wms. 117; Laight v. Morgan, 1 Cai. C. in Er. 344 : S. C. 1 John. ch. 429 ; Ld. Bay, 150. The reason given for requiring the affidavit is that the proceeding has a tendency to change the jurisdiction of the subject matter irt)m a court of law to a court of equity. (Mitf Eq. PI. 150, 151 ; Story Eq. PI. 309.) Justice Story says : " This reason is perhaps, not quite satisfactory. A better gronnd would seem to be, that the bill has a ten- dency to create delays, and may be used as an instrument unduly to retard the trial ; and therefore, au a.ffidavit that the bill is well founded is required. The aflSdavit should be positive as to the material facts." (Story Bq. PL § 309.) (26) Bignold v. Andland, 11 Sim. 23. The affidavit of liis solicitor is not suffi- cient. {Wood V. Lyme, 4 De G. and Sra. 16. See Eden on Inj. 2d Am. ed. 401, 402 ; Shaw V. Coster, 8 Paige, 339 ; Tobin- v. Wilson, 3 J. J. Marsh. 67 ; Marks v. Solroyd, 1 Cowen, 691 ; Mitf Eq. PI. by Jeremy, 143.) Such an affidavit is not necessary iu Connecticut. (Nash v. Smith, 6 Conn. 421.) See Jerome v. Jerome, (5 id. 352.) Ill 47 PROCEEDINGS TO A DECREE. [Book I. relief that might be had at law if the instrument were in the hands of the complainant, there must be an affidavit annexed to the bill, in the former case, that the instrument is lost ; and in the latter instance, that it is not in the custody or power of the complainant, and that he knows not where it is, unless it is in the hands of the defendant. (37) lu any of these instances, the want of the requisite affidavit makes the l)ill demurrable. But if the relief sought extends merely to the. de- li very of the instrument, or is otherwise such as can only be given in a court of equity, such an affidavit is not necessary. (A) Affidavits are also frequently annexed to the bill for another object. Thus, where a bill is filed for any purpose other than a discovery, the complainant may, if he thinks proper, waive the necessity of the answer being made on oath of the defendant, to avoid the necessity of disproving it when responsive to the bill, (i) But as the defendant may, by the 36th rule, still answer on oath, notwithstanding an oath is waived by the bill, for the purpose of moving to dissolve an injunc- tion or discharge a ne exeat, it is provided by rule 37, that if, in addi- tion to the usual oath of the complainant, the m'aterial facts in the bill, on which the injunction or ne exeat rests, are duly verified by the [ *48 ] oath of a *credible and disinterested witness, annexed to, and filed with the bill, it shall not be a matter of course to dissolve the injunction, or discharge the ne exeat on the oath of the defendant ; but the court may, in its discretion, retain it till the hearing. "Where the whole equity of the bill is denied by the sworn answer of the defendant, and no affidavit of a disinterested witness is annexed to the bill, the injunction will be dissolved on bill and answer, although (h) Id. 5. 1 Newl. 70. (i) 2 B. S. 175, ? 49, (orig. } «.) (27.) 1 Dan. Ch. Pr., Am. ed. 1865, p. 395, and note 5. But if the objection, in case of a lost instrument, is not taken by demurrer, but the cause proceeds to a hearing, and the answer of the defendant admits the loss or destruction of the instru- ment, the court has juriadiotion, and the objection for want of the affidavit will be overruled. (i'?>; Crosse v. Bedingfield, 12 Sim. 40.) So in suits for the discovery of deeds and writings, and for relief founded upon such instruments, if the relief prayed be auoh as might be obtained at law, on the production of deeds or writings, the plaintiff must annex to his bill an affidavit that they are not in his custody or power, or that he knows not where they are unless they are in the hands of the defendant But a biU for a discovery merely, or which only prays the delivery of deeds or writings, or equitable relief grounded upon them, does not require such an affidavit. (1 Dan. Ch. Pr. ;S96 ; McE'koel v. Sutton, 1 Hill. Ch. 33 ; Story Bq. PI. § ^ 288, 313 ; Findley v. Hinde, 1 Peters, 244 ; Livingston v. Livings- ton, 4 John. Ch. 294; Campbell v. Sheldon, 13 Pick. 8, 18, 19, 20; Mitf. Bq. PI. 54, 55 ; Anon. 1 Tes. 380 ; Whitechuroh v. Golding, 3 P. "Wins. 641 ; Anon. 3 Atk. 17 ; Dormer v. Fortescue, id. 132.) .When the subject matter of the writing is properly cognizable in equity, an affida- vit of the loss is not necessary. (Peart v. Taylor, 2 Brbb. 566 ; Mitf. Bq. PI 124 ; Laight v. Morgan, 1 Cai. Ca. in Br. 345: S. C. 1 John. Oh, 9; Campbell v. Sheldon, 13 Pick. 18, 19, 20.) 113 Chap. l.J PROCEEDINGS TO A DECREE. 48 security for the debt and costs in the suit at law has been given, under the provisions of the revised statutes on that subject, {k) So where it is intended to apply for an injunction or ne exeat upon a 1 ill sworn to by an agent or attorney of the complainant, if any ma- terial allegation or charge that is necessary to be sworn to positively, t-o authorize the issuing of the injunction ovne exeat, is not within the personal knowledge of the agent or attorney, he should, in addition to his own verification, annex the affidavit of the person from whom he derived his information ; swearing that he knows such allegation or charge to be true. {I) (38) (fc) Manchester V. Dey. Paige, 205. (2) Bank of Orleans v. Skinnei-, 9 Paige, 305. (28) A plaintiif is not entitled to an injunction, ex parte, upon a bill verified by his own oath onlj, where the facts upon which the iujunctioii re.sts are not within his own knowledge. In such a case he .'should state the facts, in his bill, as upon his infor- mation aud belief, and aunex the aifidavit of the person from whom he obtained the information, or of some other person who can swear positively to the truth of the material allegations in the bill. {CampheU v. Morrison, 7 Paige, l.W ; Bank of Orleans v. Skinner, 9 id. 305.) This is the general rule. (Eden on Inj. 2d Am. ed. aSO, 381 ; 1 Hoff. Oh. Pr. 78, 425; Hatch v. Eastaphieve, 1 Clarke, 63; Satnmersley V. Wyokoff, 8 Paige, 72.) • Bat the case of a creditor's bill, where an injunction is sought for against the judgment debtor alone, is aa exception. (Post, 617, 618.) In New Jersey, the alhdavits of the plaintiflf, made after fllijig the bill, are not competent to be read upon a motion for an injunction and a receiver. Such affidavits should be subjoined to the bill, and filed with it. {Brandred v. jfaterson Machine Shop, 3 Green Ch. 294, 309.) Upon an application for a ne exeat, also, an affidavit is necessary, as a foundation for obtaining it. (1 Hofi'. Ch. Pr. 96; PoJ'fer v. is v. Bates, 6 Ab. 15. See Tuttle v. Smith, 14 How. Pr. 395.) Iu Wisconsin, the summons is to be in the same form as it is required to be in this state (by section 128 of our Code), except that it must be subscribed by the plaintiff or his attorney, and require the answer to be served on the perscm whose name is subscribed to the summons. (Rev. Stat. 717, § 2 ; Code, § 33.) The like form of summons is required in Minnesota. (PubUe Stat. 537, ^ 45.) In Ohio the summons 119 50 PROCEEDINGS TO A DECREE. [Book J, [ *50 ] * When to he tested and made returnable.'] The subpcsna must be tested in the name of the chancellor, on the day it is issued, and be made returnable according to the fact, either before the chancellor or before the vice chancellor having jurisdiction, in the court of chancery, wheresoever the court shall then be; and, unless otherwise directed, it may be made returnable on any day except Sunday, either in vacation is issued by the clerk, under the seal of the court, and signed by him. Its style is " The State of Ohio, county," and must be dated the day it is issued. It must be du'eoted to the sheriff of the county, and command him to notify the defendant that he has been sued, and must answer the petition tiled by the plaintiff', giving his name, at a time stated therein, or the petition will be taken as true, and judgment rendered accordingly. "Where the action is for the recovery of n.oney only, there must be indorsed on the writ the amount for which, "with interest, judgment will be taken if the defendant fails to appear; and incase of non-appearance judgment cannot be rendered for a larger sum. (Seney's Code, J 57, p. 77.) The same form is adopted in Kansas. (Code, 5 65.) It has been held, in Ohio, that a summons signed by the deputy clerk, alone is good, although it would be more regular to sign the name of the clerk by his deputy. XWatk V. Bank of CirclevUle, 15 Ohio Rep. 288. See also Chapin v. Allison, id. 566.) And it has been decided that it is only in cases where the action is for the recoveiy of money only that the summons must show, in any manner, for what the action is brought. (Williams v. Hamlin, 1 Handy, 95.) And where a summons is indorsed " for the recovery of money only," and the petition claims a further and different re- lief, the court will not enter up a judgment l)y default, against a defendant, for other relief than that indorsed on the summons. (Ibid. ) In Indiana, the form of a summons is given in 2 Rev. Stat. 350. It must corres- pond with the complaint. (5 BUI. 175.) In case of variance, the court will permit an amendment, to make them agree, even after a motion to quash for the variance. (8 lud. Rep. 354.) In Illinois, upon the filing of the bill, the clerk of the court must issue a summons, directed to the sheriflf of the county in which the defendant resides, if he be a resi- dent of the state, requiring him to appear, and answer the bill, on the retm'u day of the summons. Where there are several defendants, residing in different counties, a separate summons must be issued to each county, including all the defendants resid- ing therein. (Cliancery Code, J 5 ; Statutes of 1858, vol. 1, p. 139.) Every sum- mons must be tested in the name of the clerk of the court out of which it issues, signed with Ins name, bear the seal of the court, be dated on the day it issues, and be made returnable at the next term of the court after the date ; unless the suit be brought within ten days immediatelj- preceding any term ; in which case the sum- mons must be returnable at the next term thereafter. (Ibid. § 6.) In California, the summons must state the general nature of the action, and the time in which the defendant must appear and plead; in other words, when it is re- turnable ; and it must be made returnable at the time fixed by statute. (People v. JVoodlief 2 Cal. 241 ; Porter v. Herman, 8 id. 625.) And that in case of his failure to appear, default will be taken. (Porter v. Herman, supra.) If radically defective in stating the amount for which judgment will be demanded, it will not support a judgment by default. (Ibid; People y. Woodlief supra.) In Kentucky, the summons is required to be directed to the sheriff' of the county, or, at the request of the plaintiff, to the jailer, coroner or constable, and command him to summon the defendant or defendants named therein, to answer the petition tiled by the plaintiff, giving his name, at the time stated therein, under the penalty of the petiticm being taken for confessed, or of the defendant behig proceeded against for contempt of court, on his failure to do so. The summons must be dated on the day it is issued, and signed by the clerk. (Civil Code, § 66.) The summons is to be made returnable ou the first day (>f the next term of the court, imless that term be- gins within ten days frcrai the date of the summons, when it is to be returnable on the first day of the term following. (Id. § 70.) 120 i Chap. 2.] PROCEEDINGS TO A DECREE. 50 or ill term. If the chancellor is a party, or interested in the suit, the snbpcena must be tested in the name of the vice chancellor before whom the suit is pending. (/<) Where the complainant made his subpoena returnable on Sunday, and afterwards took out an attachment thereon, against the defendant, for not appeai'ing, the court set aside the attachment as irregular, [i) Sealiyig and signing.} The subpoena must be sealed with one of tlie seals of the court ; (k) signed with the name of the register, assistant register, or clerk, from whose office it issues, and subscribed or en- dorsed with the name of the solicitor, (4) or of the complainant, in case he prosecutes in person. (?) It is not necessary the register or clerk should personally sign the subpoena. His name is usually signed by the complainant's solicitor. Service o/.] The subpoena may be served by delivering a copy thereof subscribed by the complainant or his solicitor, and inscribed " copy ;" and by showing the original, under the seal of the court, at the time of such delivery, to the . defendant, or in case of his absence, to his wife or servant, or some member of his family, at his dwelling house or place of abode, {in) (5) (ft) Rule in, (i) Goiiltl V. Spencer, 5 Paige, oil. 1*; 2 K. S. 170, § 72, (orig. § 66.) (I) Id. 278, j 0. (m) Rule 21. (4) Signature op Attorset. It has been already stated that the summons must be subscribed by an attorney. (Code, § 128.) Tbe attorney mentioned in this section means an attorney at law. ( Weare \. Sloouyn. 3 How. Pr. 397.) Where the summons is signed by the firm-name of two attorneys who are in partnersship, and the complaint and subsequent proceed- ings are signed with the individual name of one of them only, the court may, after judgment, amend the summons by sul>stitRting the individual name of such attorney for the firm-name. {Sluyter v. Smith, 2 Bosw. 673.) If the name of the attorney is printed on the summons, that is a auflicient subscription. {Mutual Life Ins. Co. v. Moss, 10 Abb. 260, n. ; Saunderson v. Jackson, 2 Bsp. 180 ; 2 B. & P. 238 ; Barnard V. Heydriok, 2 Ab., N". S. 47 ; Schneider v. Norris, 2 M. & S. 286. See Bank of Cooperstown v. Woods, 28 jST. T. 546.) In Minnesota, the summons must be signed by the plaintiff, or his attorney. (Pub- lic Stat. 537, $ 44.) So, also, in Wisconsin. (Code, § 33; Eev. Stat. 717, § 2.) In Indiana, the summons is issued by the clerk of the court, under the seal of tbe court. Before its delivery to the officer, to be executed, it must have the name of the attorney or other person at whose instance the same was issued, indorsed thereon, by the clerk of the com-t. (R. S. 1843, p. 224, ^ 14 ; 2-24, § 802; Bick. Civ. Pr. 4^.) In Wisconsin, the summons must be subscribed by the plaintiff or his attorney. (Code, § 33.) (5) Service of Summons ; Insufficient Service ; Mode op Objecting to. The practice in the court of chancery is thus laid down by Daniell : Service of the fiubpoena is efi'eeted either by delivering a copy of the writ to the person to be served, and at the same time producing the original writ, or else by leaving snoh copy at the dwelling-house of the person to be served, and at the same time producing the origi- nal writ to the person with whom such copy is left. (1 Dan. Ch. Pr. 432.) "When the copy is left at a dwelling-house, it is necessary that it should be the place where 121 50 PROCEEDINGS TO A DECREE. [Book I. On married women. In a suit against husband and wife, the service the defendant actually resides. The mere leaving the writ, or the copy, at the de- feudant's ordinary place of business, if he does uot reside there, will not be good ser- Ticp. (Id. 433. See Johnston v. Macconnell, 3 Bibb. 1.) "Where the defendant has no family, but boards, or makes it his home in the family of another, the subpoena to appear and answer may, in his absence from home, be served upon either of the heads of the family, at such place of his abode, although he jhas no wife or ser\-ant. But, to make such service regular, the place of service must be his actual place of resi- dence at the time, aud his absence therefrom must be merely temporary. {People v. Craft, 7 Paige, 'iio. See Bickford v. Skewes; 9 Sim. 428.) In Soicth Carolina, a copy of the subpoena, left at the residence of a party domiciled in the state, and tem- porarily absent therefrom, is sufficient ; unless it is made to appear that he has been sm-prised. (Southern Steam Packet Co. v. Soger, 1 Cheeves, 48.) In Illinois, where a summons in chancery is served by leaving it at the residence of the defendant, the retm'u must show that it was left with some person who was a member of the del'end- aut's family. {Townserul v. Ch-iggs. 2 Scam. 365.) In Massachusetts, " if a party is uot found, a copy of the subpoena may be left at his usual place of abode ; and the truth of the case being re.urned by the officer, if it shall be made to appear to the court that the party has actual notice of the suit, no other notice shall be requii'ed ; but the clerk shall issue other similar process, if the same shall be required by the party at whose instance the first was sued out ; and if upon such second process, the party be not found, a copy shall be again left, in like manner, as herein before direc- ted ; and upon a second retmii that the party is not found, and that a copy has been left, as is herein du-ected, the same proceedings may be had as if the process had b%eu served on the defendant." (Rule 6 of the Rules of Practice in Chancery.) In Indiana, it has been held that where the defendant, understanding the nature and object of the writ, waives the reading of it, that is equivalent to personal service, aud the writ may be returned as personally served. (13 Ind. Rep. 536.) In the United States courts, the service of all subpoenas tanst be by a delivery of a copy thereof, by the officers serving the same, to the defendant personally, or, in the case of husband and wife, to the husband personally, or by leaving a copy thereof at the dwelling-house, or usual place of abode of each defendant, with some free white perjion, who is a member or resident in the family. (13th Equity Rule.) Under the Code of Procedure, the practice is somewhat different from the above. The Code, (sec. 134,) after directing as to the manner in which the summons shall be served upon corporations, infants, persons non compus mentis, &a., directs that in aU other cases it shall be served by delivering a copy thereof to the defendant per- sonally. (See also Cal. Pr. Act, ^ 29.) The summons must be served legally, otherwise the court wiU. acquire no juris- diction of the defendant, and all subsequent proceedings will be void. (SulMei/ v. Hulkley, S Ab. 307.) " Service " means serving the defendant with a copy of the process, and showing him the original, if he desires it. {Goggs v. Santingtower, 12 M. &W. 502; Williams V. Van Valkenburgh, 16 How. Pr. 152.) A mere manual delivery of the summons is not good service, unless the summons be left with the defendant. (Beekman v. Cutter, 2 Code Rep. 51. See Mies v. Vanderzee, 14 How. Pr. 547.) The summons nmst be delivered to, and left with, him. (Rule 23, Su- preme Court.) If the defendant refuses to accept the summons, service may be made on him by informing him of the nature thereof, and ot a purpose to make ser- vice, and laying it down at any appropriate place in his presence. Effecting a service by forcibly thrusting the paper upcm the person of the defendant is improper, and when service is so effected the coiirt will set it, and all subsequent proceedings, aside. (Davison v. Baker, 24 How. 39.) "Where, however, a defendant refused to receive a process, it was held that laying it on his shoulder was good service. {Bell V. Vincent, 7 D. & R. 233.) In Niles v. Vanderzee, (14 How. Pr. 547,) the defend- ant was proceeded against as an absconding deljtor by attachment, and after the publication had commenced he returned, and calling upon the plaintiff's attorney Jie inquired as to the amount of the plaintiff's claim. The attorney, handing him a copy of the summons and complaint, said: "There is a copy of the summons ami complaint for yon, in which is contained the whole amount of the claim." The de- fendant took the papers and read them, and laid them down on a desk and started to go away, when the attorney requested hiin to take the papers with him. The defend- ant replied that he did not want them, and went away without them. Held not a sufficient personal service. The service of a summons and complaint by an agent of the plaintiff not an officer 01 the court, upon the father of the defendant instead of the defendant, by mistake. Cliap. 2.] FROOEEDINQS TO A DECREE. 50 of the subpoena on the husband alone is good sei'vice on both, unless aithough the papers are subsequently handed to the latter by the former, is not ser- vice upon the deCeudaut, and a judgment obtained by default in such a case will be set aside. {WiUiamson v. VanVaUcenhurgh, 16 How. Pr. 144.) In all legal proceedings against a hoard of supercisors, the first process, and all other proceedings requiring to be serred, must be served on the chairman or clerk of the board. (1 R. S. ;{84, ^ 3.) In California, iu counties where there is a board of supervisors having an acting chairman or president, the summons must be served on him, in the same manner as upon private persons. When there is no such chairnifin or president, it must in like manner be served upon the county judge of the county, (aon. Laws of Cal. U 1210.) Any trick or device which deprives the defendant of an authentic and fair notice that au action has been commenced, is a fraud upon the spirit and intent of the stat- ute, and upon the rights of the party. Thus, placiu" iu the defendant's possession a summons, disguised in such a manner as to conceal irom her the knowledge which it was the intent of the law should be communicated, is not good service, and the sub- sequent discovery by tlie defendant of the contents of the summons, after she is beyond the limits of the State, is not good service. (Bttlkley v. Bulkley, 6 Ab. 307.) The courts will not sanction any attempt by fraud or misrepresentation to bring a party within the jurisdiction. {Carpenter v. Spooner, 2 Sandf. 717; Goupil v. Siiiionson, 3 Ab. 474.) Thus, where, by a false statement made for the purpose, a defendant was induced to come to the city of 2Srew York, and was there served with process, it was held to be irregular. (lb.) So where a defendant residing in Can- ada was inveigled into this State by a trick, for the purpose of effecting a service of the summons upon him, the service of the summons, and all subsequent proceedings dependent thereon, were set aside. (Metcalf v. Clark, 41 Barb. 45.) So also where service is accomplished by means of aJ improper arrest and detention on criminal process. (Benniiighoff v. Osioell, 37 How. Pr. 235.) If a copy of the summons and a certified copy of the complaint ai-e personally delivered to the defendant, and issued from a court of general jurisdiction, the court thereby acquires jurisdiction of the person of the defendant. (Pecfc v. Strauss, 33 Cal. fi78.) A non-resident, attending as a witness in an acti(m to be tried in this state, in good faith, and for no other purpose, is exempt from the service of a summons upon him ; and if service is made, in such a case, it will be absolutely set aside and discharged. (^tleiiuer v. Robinson-, 3 Duer. 622; S. C. 12 Leg. Obs. 120.) A nim-resideut party to an action in this state, attending the court as a witness, is likewise privileged, while here and returning home, not only from arrest, but from any action brought agaiu) Phelps V. Phelps, 7 Paige, 150. have been served on him; and cause a copy thereof to be delivered to the defendant, any -where in the TJuited States, by some person to -whom he is personally known. Proof of the delivery is to be made by the affidavit of tbe person making it, indorsed on or annexed to the certified copy and sninmous, in -which tbe time and place of the delivery, and the fact that the defendant was personally known to the affiant, shall be stated. The officer before whom the affidavit is made, must certify that the affiant is personally known to him to bo wortliy of credit. (Oiv. Code, § 86.) The certified copy and summons, -with the affidavit aad certificate, a^ provided in section 83, being returned and filed, shall be deemed an actual service of the summons, in duo time for trial at the first term commencing not less than sixty days after such service, (/r?. 5 87.) The Code also directs as to the mode of service upon Shakers, (5 384) and owners of steamboats (§ 85.) As to ser-vice of sammous by puWication, see Post chap. V, section 2, and note 2. (6) Service on Hcsb.vnd and "Wife. "Where the action is against husband and wife, service on the husband alone -will be good service on bothrtinless relief be asked out of the separate estate of the wife, in -which case she must be served. {Eeherson v. Folmiir, 11 How. Pr. 43; Ferguson V. Smith, 2 John. Oh. 139 ; Foote v. Lathrop, 53 Barb. 183 ; Leavitt v. Cruger, 1 Paige, 422; Kule 13 in Equity, U. S. courts.) And she may put in a separate an- swer, the husband in such case being considered only a nominal party. {Leavitt v. Cruger, supra ; Ferguson v. Smith, supra.) In Jfeio Jersey, in cases where husband and -wife are made defendants, and the husband only is served with process of subpoena, the wife being out of the State, an order for publication must be taken against her, unless an appearance be entered fur her. (Chancery, rule 6, § 2.) If an action is brought against husband and wife to foreclose a mortgage executed by them jointly, and an attorney appears in the action for both, on the retainer of tlie husband, and judgment of foreclosure is entered, the wife cannot, after her hus- band's death, avoid the judgment on the ground that she -was not served with pro- cess in the action, and did not appear therein. (Foote v. Lathrop, 53 Barb. 183.) In the United States courts the service of a subpoena, in the case of husband and ■wife, must be by a delivery of a copy thereof to the husband personally, or leaving it at the dwelling-house or usual place of abode of the defendants, with some free white person who is a member or resident in the family. (13th Equity Rule.) (7) Process for the commencement of an action against a convict in tlie State prison, may be served upim him in the prison. Although his right to sue is suspeimled, he may still be .sued, and the suit prosecuted to judgment. (Davis v. Duffie, 8 Bosw. 617; S. 0. 3 Keyes, 606; 4 Ab., K S. 478; 3 Trans. App 54; Phelps v. Phelps, 7 Paige, .500.) In Johnson v. Johnson, ("Walker Ch. 309,) it was held that a service of the subpoena upon the keeper of the State prison' in such a case was valid. In Kentucky, where the defendant is a prisoner in the penitentiary, a copy of the petition must accompany the summons, and the service must be upon the Iceeper of tbe penitentiary, who shall deliver the copies of the petition and summons to the defendant, and a copy of the summons must also be delivered to the wife of the prisoner, or, if he has no wife, left at the place where he re,5ided, or claimed to reside, prior to his confinement, with some white person of the age of sixteen years. (Oiv. Code, J 83.) 125 51 PROCEEDINGS TO A DECREE. [Booli T. er of a prison will be ordered to be good service upon a prisoner in his custody, {q) Wliere defendant lias no family. Where the defendant has no fami- ly, but boards or makes it his home in the family of another, a subpoena may, in his absence from home, be served upon either of the heads of the family at such place. But to make such service regular, the place of service must be his actual place of residence at the time of service ; and his absence therefrom must be merely temporary, (r) Service out of the state. The service of a subpoena upon a defend- ant out of the state is irregnlai'. (s) (8) When to be served. Tlie service may be on or before the day of ap- pearance mentioned in the siibpcena. (t) And it may be made at any hour of the night. It seems a service on the return day, before 13 o'clock at night, is valid ; as the legal day does not close until that hour. (9) (q) I Dan. 500, Hiiule, 85. Joyce v. Jojce, 1 Ilog.-in, 121. {rt People v. Ci'al't, 7 Paige, 335. (s) Dimn V Dunn, 4 Paige, iia. Creed v. Byrne, 1 Hogan, 79. 1 Moll. 21-3. 1 Dan. 432. («) Rule 21. (8) Service, "Where to be Made. In the former court of chancery, although tlie rule was as stated in the text, yet it ■was held that where the court hai jurisdiction of the subject matter of the suit, if a defendant, who wai beyond the limits of tbe State whea served, ciHUBited to waive the h-regularity of the service by a voluntary appearance, or by an atrreemeut in writing to accept the service of a subpoena upon him as regular, he could not after- wards object to the regularity of proceedings against him, founded upin such servioi;, (Dtmn V. Dunn, 4 Paige, 425; Picquet y. Swan, 5 Mason, 561. See Henderson r. Hoffer, Halst. Dig. 170.) Under tbe Code it has been held that the service of a summons must, except in the cases provided for in section 135 of the Code, be within the territorial jurisdic- tion of the court. {Litchfield v. Bnnnell, 5 How. Pr. :541 ; Fishe v. Anderson, :)3 Barb. 75; MorrcU v. Kimball, 4 Ab. 352.) And that an admission of service by parties residing out of the State is ineffjctnal as the basis of any judicial proceeding in personam in this Stat?, ([bid; JStilburt y. Hope Mntual Ins. Co. 4 How. Pr. 275, 415.) But in all actions in which the superior court of the city of ISTew York has juris- diction by subd. 1 of 5 33 of the Code, and in an action against several persons jointly liable on contract, when oae of them resides in that city the summons may be served in any oonnty of the State. And it is only in those actions of which juris- diction is acquired by the fact of personal bervioe of the summons on all the defendants within the city of Sew Turk, that service of the summ.jus out of that city Is unauthorized and invalid. {Porter v. Lord, 4 Ab. 43 ; 4 Duer. 682.) it is lawfnl to serve either civil or criminal process upon a person on boai'd a British ftian-of-war lying witliin the jurisdiction of the court. (1 Opin. Att'y Gen. 87.) (9) Service, "When to be Made. In Pollard v. Union Pacific R. R. Go. (7 Ab., N". S. 70) the court refused to set a-sido the service of a summons made upon a resident of New Jersey, at a time when he was attemling a,i a witness and party in a suit In which he was a defendant. (But see Seaver v. Robinson. 3 Duer. 622; Merrill v. George, 23 How. 331 contra.) Service may be made at any hour of the day or night. In this respect there is a distinction between services of notices and of process. Unless the latter could be served at any hour there might be no means of catching the defendant. Prindle v. Cooper, 1 Bing. Oi; Upton v. McKenzie, 1 D. & R. 172; Weybitrn v. Xeale, 2 Bur. 813.) A party has the whole of the last day fixed for service in which to serve a 126 Chap. 2.] PRocEEDmss to a decree. SI A subpaana cannot regularly be served on Sunday, (m) (10) If the copy served is not filled up with the return day, the service will be irregular, and the proceedings will be set aside, although the original shown to the party was properly filled up. {v) Where a ne exeat is issued at the same time with the subpoena, it is not necessary that the subpoena should be served first. Thus, where the complainants took out a subpoena when the ne exeat was issued, and made a bona fide attempt to serve the same, but were unable to do so previous to the service of the ne exeat, the court held there was no irregularity which could entitle the defendants to have the latter writ set aside, {w) On infants. If an infant is made a defendant, the subpoena must be served upon him personally, in the same manner as upon adults, (a;) (11) But it is recommended, in such cases, to accompany such service with a notice to the parent or guardian of the infant, or some (u) 1 R. «. 675, i 58, (orig. S 69.) (v) Arden v. Waldeii, 1 Ednr. 631. (w) The Ucoi-gia Lumber Co. v. Bissell, 9 Paige, 225. {x) 1 Dan. 229, 5t3. papei-; and an affidavit that it Tvas not served made on that day even after nine o'clock at night, is irregular. {Hoxie v. Scott, Clarke Ch. 457.) The service of a snmmous upon an elector on election day is void, and all proceed- ings thereunder are void also. (Meeks v. Noxon, 1 Ah. 280; S. C. 11 How. Pr. 189; sub. noin. Weeks v. Noxon; Fierce v. Smith, a Ah. 411; Hastings v. Farmer, 4 N. T. 29i); Wheeler v. Bartlett, 1 Edw. 323; Matter of the Election Law, 7 Hill, 194 ; Laws of 1842, ch. 130 § 4.) So as to a service on the day of anv town meeting. (1 Bev. Stat. 341. § 10.) In Wheelei- v. Bartlett (1 Bdw. 323) it was held that the provision of the statute prohibiting the service of civil process on the day of special or general election did not apply to charter elections; and that the charter of the city of oSTew York prohibiting the service of civil process upon electors oa the day of a charter election did not apply to writs of subpoeua, but had reference to process which causes duress. (See also Matter of the Election Law, 7 Hill, 194.) The attorney subscribing a summons, may at his option, by an indorsement on the summons, fix a time for the service thereof', and the service must then he made accordingly. {Code, ^ 133.) "When no time is thus fixed the same section directs that the service shall be made and the summons returned with proof of the service to the person whose name is subscribed thereto, with all reasonable diligence. (10) Field V. Fark, 20 Johns. 140; Taylor v. FhilUps, 3 East, 155; Vanderpool v. Wright, 1 Oowen, 209, 210, note a. Procuriug the service on Saturday of any process issued from a justice's court in a civil suit upon any perscm whose religions faith aud practice is to keep that day as the Sabbath, is declared a. misdemeanor. (Laws of N. Y. 1847, ch. 349.) In such a case the service being prohibited by statute is void. Hastings v. Farmer, 4 If. T. 296.) But a service on Saturday upon a person of the Jewish persuasion and religion will not render the judgment void. (Marks v. Wilson, 11 Ab. rt7.) (11) (Massie v. Donalson, 8 Ohio, 377 ; Jones v. Mason, JST. C. Term R. 125.) But service of a subpoena on the father of a minor defendant if within the jurisdiction, has been held sufficient if the minor resided out of the jurisdiction. (Kirioan v. Kirwan, 1 Hogau, 264.) So as to a service on the surviving parent, whether the infant is more or less than fourteen years of age. {Satiders v. Godley, 23 Alabama, 473.) But when the parent and child are both parties a service on the parent alone is not sufficient to hring the infant before the court. The subpoena should be served on the parent for the infant, aud this should appear by the officer's return. (Hodges v. Wise, Ifl Ala- bama, 509.) The Code provides that if the action is against a minor under the age of fourteen years, the summons shall be ser^'ed Iiy delivering a copy thereof to him personally and also to his father, mother or guardian ; or if there be none within the State, tht-u to any person having the care and control of such minor or with whom he shall reside, 127 51 PROcicEnryas to a decree. [Book I. comijetent person of the family, of the nature of the writ, aud of tho necessity for the infant's having a guardian appointed to appear and defend his interests, [y) Where the infant cannot be found, so as to [*52] be served, or is *absent from the state, the complainant mnst proceed by advertisement under the statute relative to non-resident, absent, or concealed defendants ; {z) in the same manner as if he were an adult; and if, upon the expiration of the time, no one applies in his behalf, the complainant may move that a guardian ad litem be ap- pointed for him. (a) On lunatics. The subpcena against a lunatic must be served upon him personally, as in the case of an infant. And it should be in the presence of some competent person, or with notice to his committee ; who must also be made a party defendant, as such committee, to suits respecting the lunatic's estate, and who is bound to appear and answer, with and for the lunatic, or be attached. (5) (13) (yl See 1 Hnff. Pr. 106. (3) 2 R. S. 186. Laws of 1842. p. 363. (o) Bank of Ontario v. Strong, 2 Pai^e. 301. (6) 1 Dan, 173, 219. Mitf. Bq. PI. +, 2:J. 82. MoPliorson v. Strevel, in Chan. Jan'v, 1843, (ex relatione Jnlius Rhoades, E.sq.) Fersubou v. Smith,2 John. Ch. Rep. 139. 1 Paige.' 422. And see ijost, Book I, Ch. VI, See. 5. or in wlioso service he shall he eraployed. (Sec. 134.) The Code of Wisconsin con- tains the same provision. (Code, § 39 ; Eev. Stat. 719, sec. 9.) Also the Code of Minnesota. (Pnblio Stat. 538, § (53) XDIX.) In Kansas, when the defendant is a minor nnder the age of fourteen year.'^, the service mnst be npon him and upon his guardian or father; or if neither of these can be found, then upon his mother or the person having the care or control of the inCant or with whom he lives. If neither of these can be found, or if the minor be more tlian fourteen years of age, service on him alone will be suificient. The manner of service may be the same as in the case of adults. (Code, 5 77.) The same rale prevails in Ohio, (Seney's Code, § 69, p. 84 ;) i. e., by delivering a copy of the summons to the defendant personally, or by leav- ing one at his usual place of residence at any time before the return day. (Id.' § 70.) h\ Indiana, infant defendants mnst be personally served, unless some statute autho- rizes service otherwise. (17 Ind. 636 ; Bicknell's Civil Prac. 50.) A guardian ad litem cannot waive service of process for an infant. (9 Ind. 132; 7 Id. 224.) Xor can a general guardian waive service of process for his infant ward. (5 Ind. 33.) "Where proceedings come before the court collaterally and the record is silent upon the ques- tion of notice, the court will presume that proper steps were taken to bring infant defendants within the jurisdiction, but upon appeal such a presumption -will not be made. (1 Ind. 130; 7 id. 224, 385; Bick. Civ. Prac. 50.) In Ohio, it is u-regular to proceed against an infant until the process has been served strictly in accordance with section 69 of the Code. (Keys v. McDonald, 1 Handy, 287.) The summons should show, as a guide to the sheriflf, the age of each infant as stated in the petitiou. [complaint.] (lb. Morse v. Ch-ames, 2 Law Gaz. 404.) In California, in a suit against a minor under the age of fourteen years, the sum- mons must be sei-ved by delivering a copy to the minor personally, and also to his father, mother, guardian ; or, if there be none such within the State then to any per- son having the care or control of such minor or with whom he resides, or in whose service he is employed. (Cal. Pr. Act, §29.) In Kentuckij, where the defendant is an infant under the age of fourteen years, tho service must be upon him and upon his ffithur or guardian; or if neither of these can be found, then upon his mother or any other white person having the care or control of the infant or with whom he lives. "Where the infant is over fourteen years of age service on him is sufficient. (Civ. Code, § 81.) (12) Service on Lunatics. The Code directs that when the action is against a person judiciaDv declared to be of unsound mind, or incapable of conducting his own affau-s 'in consequence of habit- 128 Chap. 2.] PROCEEDINGS TO A DECREE. 52 On a corporation. If a bill be filed against a corporation, the sub- poena must be served upon some one of the members, (c) usually upon the president, cashier, secretary, or other principal ofl&cer. (13) (c) Gray'3 Sol. Pr. 60. Hinde, 87. ual drunkenness, and for whom a committee has been appointed, the summons shall be served by delivering a copy thereof to such committee, and to the defendant per- sonally. (Code, § 134.) It has been held that service of a summons upon one with whom a person of unsound mind resides is not good service ; it should be upon the person himself, and also upon his committee, if he has one. {Heller v. Heller, 6 How. Pr. 194 ; S. C. 1 Code Rep., N. S. 309.) The provision in the Code for service on a lunatic does not dispense with the rule of law forbidding an action against one judicially declared a lunatic, unless by leave of the court. The proper course for a party who has a claim against a lunatic or his estate, after office found, is to apply to the supreme court, by petition, for the payment of the debt out of the lunatic's estate, (n- for leave to bring a .suit for the purpose of establishing the claim. (Sorerhill v. Dlchion, 5 How. Pr. 109 ; Matter of Hooper, 5 Paige, 489 ; Williams v. Estate of Cameron, 26 Barb. 172 ; Crippen v. Culve^ 13 Barb. 424.) If the court is satisfied that the debt is justly due, the committee will be ordered to pay it out of the estate ; or, if the claim is doubtful, the court will either have it settled by a reference, or give the claimant permission to establish his claim by an aoti(m. {Matter of Hopper. 5 Paige, 489; Williams V. Cameron, 26 Barb. 172.) An action agaiast a lunatic, commenced with- out the permission of the court, would be restrained. {Matter of Heller, 3 Paige, 199. But see liohertson v. Lain, 19 "Wend. 650.) And a judgment recovered therein would be of no avail, {Clark v. Dunham. 4 Denio, 262; 3 Paige, 201; Robertson v. Lain, 19 Wend. 650,) or might be set aside on motion or by aa aotioa. {Demilt v. Leonard, 11 Ab. 252; 19 How. Pr. 140.) A judgment recovered against a lunatic after the appointment of a committee of his person and estate, withoat having first obtained leave from a court of equity to institute a suit against him, is not void, nor even erroneous, nor is the party acting under it a trespasser. The remedy of a lunatic thus improperly proceeded against is by application to the court appointing the committee to restrain the prosecution of the suit at law, and punish the plaintiff for contempt. {Crippen v. Culver, 13 Barb. 424; Sternbergh v. Schoolcraft, 2 id. 153.) In an action for partition, where the summons has been served upon some of the defendants, and a guardian ad litem has been appointed for an infant lunatic, on the application of his guardian or committee, no personal service of the summons need be made on sucb infant lunatic. {Rogers v. McLean, 11 Ab. 440; S. C. 34 N". T. 536; 31 How. 279.) In Kentucky, where the defendant is a person judicially found to be of unsound mind, or a person confined in any of the State lunatic asylums, who, by the certifi- cate of the person in charge appears to be a lunatic, the service must be upon him and upon his committee ; if tliere is no c It has been seen that section 134 of 'the Code allows service to be made upon a for- eign corporation when the " cause of action " arose in this state. A cause of action -is the right which a, party has to institute, and cany through, such a proceeding. Chap. 3.J pnooEEDiiVGS to a di-jchee. 52 is interested, the district attorney or the attorney general must be (,Meyer v. Fan Collum, 28 Barb. 531.) Vhere a contract is made at oue place aa^ is to be porformed at aaother, the cause of action upon such coufcraot arises at the latter place. (BurcJcle v. Eclcliart, 3 N". Y. 133; Bright v. Judson, 47 Barb. 29.) "Whore a loan is made by one non-resident to another out of this state, and received by a draft drawn upon a person residing within this state, the cause of action cannot be said to have arisen within this state. ( Western Bunk v. City Bank of Coliiinhuf!, 7 How. Pr. 238.) "Where a railroad company, chartered by the state ()f Vermont, by its president, drew a bill of exchange in that state, payable in N'ew "Torli, upon B., the treasurer of such company in Boston, which was accepted and indorsed in Bos- ton by B. as such treasurer, and sold by him to the Banlt of Commerce, in Bostt)n ; and it was, on maturity, presented for payment in ISTew York, and was there protested for non-payment, — it was held that the cause of action arose in Few York. (Bank of Commerce v. Rutland <|- Wash. R. li. Co. 10 How. Pr. 1 ; Conn. Mut. Ins. Co. v. Cleoeland B. R. Co. 23 id. 180; 26 id. 22d.) A summons may be served upou a corporation by delivering a copy to a director ; and the court will acquire thereby complete jurisdiction over the parties. (Curtis V. Avon, 4-c. R. R. Co. 49 Barb. 148.) In an action against a municipal corporation, service of the summons upon the mayor is good. (.Wai/or, <^c., of New York v. Conover, 5 Ab. 244.) In The People ex rel. Davis v. Sturieoant, (9 N". Y. 263; S. C. 1 Duer. 451) in an action against the mayor, .fee., of the city of New York, service of the summons and complaint, together with affidavits for an iujunctiou upon the mayor, and of the summons and iujuuction upon both boards of aldermen, was held suffioieut to base proceedings upon for con- tempt in disobeying the injuuotion. By the act of 1860 (oh. 379, § 4), aU process and papers for the commencement of actions and legal proceedings against the corporation of New York, are required to be served either ou the mayor, comptroller, or the counsel to the corporation. As to service of summons on Railroad Corporations, see Laws of 1854, ch. 282, Laws of 1869, p. 274. On Foreign Corporations, see Laws of 1855, ch. 279. On Express Corporations, see Laws of 1864, ch. 411. Foreign Life and Health Insurance Companies, or associations doing business in this state, are required to appoint an agent here, upon whom process may be served. (Laws of 1853, ch. 463, § 14 ; as amended. Laws of 18d2, oh. 357, $ 5.) So as to Foreign Fire Insurance Companies. (Laws of 1853, ch. 466, J 23; as amended. Laws of 1862, eh. 367, § .5.) In Ohio, a summons against a corporation may be served upon the president, may- or, chairman of the board of directors or trustees, or other chief officer ; or, if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk, or managing agent; or, if none of the aforesaid officers can be found, by a copy left at the office, o.r usual place of business of such corporation, witb the person having charge thereof. (Seney's Code, p. 8.3, seo. 6,i.) "Where the dofendaat is a foreign corporation, having a managing agent in Ohio, the service may be upon such agent. (Ed. p. 84, sec. 68.) "Where process was issued again-:t a foreigu corporation and the sheriff returned that he served a certified copy on oue of the directors persouaQy, it ■was held that this was an insufficient service. {Barney v. New Albany tf- Salem R. R. Co. 1 Handy, 571.) In no case can a foreign corporation be served with process in the manner prescribed by section 66 of tlie Code. (Ibid.) Unless a foreign corporation has, within the state, a managing agent, lor the ordinary transaction of its business, it cannot be held liable, in the Ohio courts, by any proceeding in personam. (Ibid.) "Where the defendant is an incorporated insurance company, and the action is brought in a county in which there is an agency thereof, the service may be upou the chief officer of such agency. (Seney's Code, p. 84, sec. 68.) In Indiana, the summons f(n- a corporation must, in general, be served on the presi- dent or presiding officer, mayor, or cliairman of the board of trustees ; or, if its chief officer cannot bo found in the county, tlicn upon the cashier, treasurer, secre- tary, clerlf, general or special agent ; or, if it be a municipal corporation, upon its marshal; or, if it be an incorporated library company, upon its librarian. And if none of the above officers can be found, then the snmmons may be served upon any person authorized to transact business in the name of the corporation. (-2 Rev. Stat. 35, seo. 33 ; 7 Ind. 524 ; 8 id. 278 ; Bick. Civ. Pr. 51.) The summons tbr a foreign corporation may be served u|)on its agent, appointed pursuant to law for tliat pur- pose. (1 Eev. Stat. 24.!.) Toe eon(in^.-cor of a railro.id is a special agent of the raih-oad company, and a suiiimous against the company may bo served upou him .if 131 52 PROCEEDINGS TO A DECREE. [Book T. the chief officer thereof cannot be foirnd in the county. (9 Ind. R. 243.) If the action against a corporation or other company groiva out of, or is oouueeted with, the business of its office or agency in any county in Indiana, the summons may be served in that county upon any agent or clerli employed in such office or agency. (2 Rev. Stat. Zi, sec. 30.) If the corporation be a railroad company, whose princi pal office is not in Indiana, the summons may be served upon any officer, director, or general agent of said company, who is not a plaintiff in the suit, nor interested therein against the company. (Laws of 1853, p. W.l.) It has been held that a con- duct(n- of a train is an officer of the company, within the meaning of this statute. (16 Ind. Rep.. 438.) In an action against an express company, the summons may be ■ served upon the agent named for that purpose in the agreemeat required to be tiled by the express company in the recorder's office of each county in which its business is done, or in which it has an agency or office. (Ijaws of 1855, p. 100.) In an action against a foreign insurance company, the summons may be served upon the person named for that purpose in the writing required to be filed by such company in the recordei-'s office of each county in which its agency is established. (Laws of 1855, p. 137.) It seems that in all cases where the summons for a ooiporation or company is served upon its agent or other officer, personal service is required, and that service by copy left at the residence of such agent or officer is insufficient. (Bicknell's Civ. Prac. 53.) In Minnesota, if the suit be against a corporation, the summons must be served by delivering a copy thereof to the president, or other head of the corporation, secre- tary, or managing agent thereof. (Pub. Stat. 538, sec. (53) 49.) In Kansas, a summons against a corporation may be served upon the president, mayor, chairman of the board of directors or trustees, or other chief officer ' or, if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk, or managing agent; or, if none of such officers can be found, by a copy left at the office, or usual place of business of such corporation, with the person having charge thereof (Code, § 74.) If the defendant is an incorporated insurance com- pany, and the action is brought in a county in which there is an agency thereof, the service may be upon the chief officer of such agency. (lb. § 75.) If the defendant is a foreign corporation, having a managing agent in Kansas, the seiTioe may be upon such agent. (lb. § 7ti.) In Illinois, the summons against a corporation, returned executed on the president thereof, or served by leaving a copy thereof with the principal clerk, cashieri or secretary of such company, at his office, within such time and under such regula- tions as are provided in the Code for the service of such process in suits against natural persons, is to be deemed a sufficient service whereon to ground subsequent proceedings and judgment against the company in any court of the State having juri.sdiction. (1 Rev. Stat. 1858, p. 242.) An amendatoVy act, passed in 1853, pro- vides that in such cases pi'ocess shall be served upon the president of the company, if he resides in the county in which the suit is brought ; and that if such president be absent from, or does not reside in, the county, then the summons shall be served byieavmg a copy thereof with any clerk, cashier, secretary, engineer, conductor or agent of such company found in the county, at least five days before the trial. (I b. p. 343.) In California, in a suit against a corporation, the summons most be served on the persira designated in the statute. (Cal. Pr. Act, § 29.) That is to say, if the suit is against a domestic corporation, by delivering a copy of the summons to the presi- dent or other bead of the corporation, secretary, \G-illig v. Indep. G. f S. M. Co. 1 iSTev. 247,) cashier, or managing agent thereot. (Aiken v. Quartz Bock Co. 6 Cal. 186 ) If against a foreign corporation, or a non-resident joint stock company, &x., to an agent, cashier, or secretary thereof. (Cal. Pr. Act, § 29; 3 Bstee PI. 8.) Serving a party iu possession of the property, who does not appear to be one of the officers named, will not entitle the plaintiji' to a judgment by default. (Aiken v. (Juarts Bock Co. 6 Cal. 186.) As to sufficiency of service of summons on a ooi-poration by the laws of Oregon, see Laws of Oregim, 1866, p. 9. In Kentucky, when the defendant is a corporation created by the laws ol that State, the service of the summons may be upon the president, mayor, chairman of the board of trustees, or other chief officer ; or, if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk, or managing agent ; or, if it is a municipal corporation, upon its marshal ; or, if it is an incorporated library company, upon its librarian. (Civ. Code, § 77.) If the defendant is an incorporated bank, and the action is in a county in which there is a branch thereof, the service may be upon the president or cashier of that branch. (lb. J 78.) If the defendant is an 132 Chap. 3. J PROCEEDINGS TO A DECREE. 52 served with a copy of the bill. (14) If he omits to enter an appear- ance, an order may be obtained, on petition, that he appear within a certain time, or that the bill be taken as confessed, {d) Extr am' dinar y, or substituted service. (15) A service by any of the id) 1 Hoi Ch. Pr. 108. iacoi-porated insurance company, and the action is in a county In which there is an agency thereof, the sei-vice may be npou the chief officer of such agency. (lb. § 79.) If the defendant is a foreign corporation, having an agent in Kentucky, the service may he upon such agent. (Id. § 80.) (14) In a suit against the State, the service of process on the governor or chief executive magistrate, and on the attorney general of the State, is a regular service. {Clmholm's Ex'rs v. State of Georgia, 3 Peters' Cond. Eep. 51 ; 2 Dallas, 419 ; (?)•«(/- son V. Virginia, 3 Ball. 320 ; Rules Sup. Court, U. S. Dec. Tr. IS.'SS, N"o. 5.1 In New Jersey v. New York, (3 Peters, 461.) it was held that "when a bill is brought oy oue state against another, the subpoena must be served upon the governor and at- torney general of the defendant state ; and that a service on the governor alone, there being no appearance entered for the defendant, would not authorize the court to proceed. (See Huger v. South Carolina, 3 Dall. 339.) (15) Substituted Service. The act of 1853, " to facilitate the service of process in certain cases," (Laws of 1853, chap. 511,) directs that whenever it shall satisiactorily appear to any court, or any judge of the supreme court, or any county judge, by the return or affidavit of any sheriff, deputy sheriff, or constable authorized to serve any process, &e., for the com- mencement, or in the prosecution of any action or proceeding, that proper and dili- gent effort has been made to serve such process, (fee, on any defendant residing ia this state, and that such defendant cannot be found, or if found, avoids ov evades such service, so that the same cannot he made personally, such court or judge may by order, direct the service of any summons, ii Pulteney v. Shelton, 5 Ves. 147. (o) Trabue's Heirs v. Holt, 2 Bibba' Rep. 393. Hoye 7. Peun, 1 Bland. 29. Id. 132. (16) By whom Served. la some of the states a subpmia in chancery may be served by any person, as in Maryland, {Boye v. Penn, 1 Bland. 29; Taylor v. G-ordon, id. 132;) New Jersey, {Wm-t V. Smith, 1 Green. Ch. 309;) Kentucky, (Ti-abue's Heirs v. Holt, 2 Bibb. 393.) In the United States courts, service of a subpcena is to be made by tbe mai-.-^hal of the district, or his deputy, or by some other person specially appointed by the court for that purpose, and not otherwise. In the latter case, the person serving the pro- cess must make' affidavit thereof. (15th Equity Eule.) Section 133 of the Code of New York provides that the summons may be served by the sheriff of the county where the defendant may be found, or by any other person not a party to the action. The service must be made, and the summons returned, with proof of the service, to the person whose name is subscribed thereto, with all reasonable diligence. It seems a sheriff, who is plaintiff, may serve his own summons. (Bennett v. Ful- ler, 4 John. 486.) If the defendant is a non-resident, and that fact can be proved, it is unnecessary to issue the summons to the sheriff at all ; but the plaintiff may at once apply for his order of publication. (Tan Sant. Bq. Pr. 38.) If the defendant is concealed, or can- not be found, and his last known place of re.sidence was within this state, it is proper to issue the summons to the sheriff of the county of such residence, and procure his return thereto that the defendant canaot be found, in order to use such return in making out the proof necessary to obtain an order of publication. (Ibid.) The service of a summons by the plaintiff in an action is a mere irregularity, which may be corrected by motion before, but not after, judgment. But such motion must be "made the first opportunity. {Hunter v. Lester, 18 How. Pr. 347 ; S. 0. 10 Ab. 53 PROCEEDINGS TO A DECREE. [Book 1. Alias or pluries writ.] It is never necessary to use an alias or plu- ries writ of subposua. (17) If the subpoena has not been served upon 260.) If made after judgment, it will be too late. {Myers v. Overton, 2 Ab. 344 ; S. 0. 4 B. D. Smith, 428.) In Vermont, service of a subpoena cannot be made by an indifferent person not named in it. (Alli/n v. Davis, 10 Term. 547 ; Burlington Bank v. Catlin, 11 id. 106.) In New Hampshire, where a private person may make service of process by copy, he may himself certify and swear to the copy. {Stone v. Anderson, 5 Foster, 221.) In Wisconsin, the summons may be served by the sheiiff of the county where the de- fendant may be found, or by any other person not a party to the action. (Code, § 38 ; Eev. Stat. 718, § 8.) In Minnesota, the same rule prevails. (Pub. Stat. 538, § 48.) In Ohio and Kansas, the summons must be served by the officer to whom it is direc- ted, who shall indorse on the original writ the time and manner of service. It may also be served by any person, not a party to the action, appointed by the oiBoer to whom it is directed. The authority of such person must be indorsed on the writ. (Code of Ohio, ^ Gl; Code of Kansas, § 69.) In Indiana, the summons, when served within the state, must be served by the sheriff to whom it is directed, either in person or by deputy. (2 Eev. Stat. 11, 5 !i.: 8 Bid. 140; Bieknell's Civil Prao. 49.) Notwithstanding the above statute, the Su- preme Court of that state has decided that a sheriff's deputy may empower any third person, even an infant, to serve a summons ; and that service by a person so em- powered is good. (9 Ind. 253.) "Where no provision is otherwise made, for the ser- vice of process in any county, from any court, the sheriff of such county must serve the same. (2 Eev." Stat. 11, § 3.) Personal service may be made up(m a non-resi- dent out of the state, by any person. (Ibid ; and 2 Rev. Stat. 132, ^ 419.) If there be no sheriff' or coroner, or if both be incapacitated from serving the summons, the service must be made by an elisor, appointed fm- that purpose by the court. (2 Eov. Stat. 8, § 20.) In Illinois, upon the filing of the bill, the clerk of the court issues a summons, directed to the sheriff of the county in which the defendant resides, if the defendant be a resident of the 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 separate summons must be issued to each county, including all the defendants residing therein. (Chancery Code, sec. 5 ; Stat, of 1858, vol 1, p. 139.) In Eentuclcy, the summons may be served : 1. By the officer to whom it is directed, or by any officer to whom .it might have been directed ; whose return thereon shall he proof of the time and manner of the service. 2. By any person appointed by the officer to whom the same is directed, by an indorsement on the summons, whose affidavit, indorsed thereon, shall be proof of the time and maimer of service. (Civ. Code, 5 73.) In California, service may be made: 1. By the sheriff of the county, or by his deputy ; 2. By some person specially appointed by him, or by the judge of the court in which the action is brought ; 3. By any white male citizen of the United States, over twenty-g was 138 Cliap. 3.] PBOGEEDINGS TO A DECREE. 54 days after the appearance day mentioned in tlie writ. And if the appearance is not so entered, the complainant, on filing proof of the service of the snbpcBna, may have an order of course that an attach- ment issue to compel an appearance, if the subpoena has not been personally served. An order of course for an attachment may also be entered where there has been personal service of the subpoena, upon filing an afiidavit that a discovery from the defendant is neces- sary, (i?) An attachment is the first process that issues against a defendant in cases of contempts. It is issued under the seal of the court, and is directed to a sheriff, commanding him to attach the party, so that be may have his body before the court to answer touching his contempt, &c. This process issues for a contempt, as well in not appearing as in not answering after appearance; and as the rules of proceeding in ( p) Rule 23. fatal to the motion in this respect. Under the facts and circumstances presented, the plaintiff was allowed to amend nimc pro tunc, by filing his aifidavit of verification of tlie complaint; and was also allowed to annex au afiidavit verifying the signature of the defendant's agent to the admission of service. ("See also Aikeji v. Mariposa Min- imi Co. 6 Cal. E. 186.) In Indiana, when a summons is served by the sheriff, or his deputy, the proof of the service is the return signed by the shoritf or his deputy. (2 Rev. Stat. 95, ^ 292.) In a case in 9 Ind. Rep. 243, wliere the service was held good, although not made by the ofiioer or his deputy, bat by a third person, specially authorized thereto by the officer, the evidence of the service was the sworn statement of the officer that he had told the third person to serve the writ, aud the sworu statement of such third per.sD.i that he had served it. And it seems that uader the statute of Indiana, the afedavLt of the tbird person is the only mode of proving such service. (Bickuell's Civil Prae. 55.) "Where the service of the summons is made upoa a non-resident out of the state, it must be proved by the affidavit of a competeut person, made before any person authorized to administer oaths. The affidavit must state the time and place and mode of the service, and may also set forth that the person served is the identical person named in the aotitm. If the identity of the person served be not so shown, it must be proved by the affidavit of the plaintiff', or some other person. (2 R. S. 'i'a, § 39.) And in all oases, the proof of the service of any process issued by the court may be the written admission of the defendant, stating the time and place of the ser- vice, and duly proved to have been signed by the defendant. (2 R. S. 95, § 292.) In the absence of any proof to the contrary, the Supreme Court will presume that the court below, when it ordered a default, was fully satisfied, by evidence, that the pro- cess was regularly served. (15 Ind. Rep. 183.) In Kansas, when a summons is served by a person appointed by the officers to whom it is directed, or when the service is made out of the state, the return mnst be verified by oath or affirmation. (Code, sec. 69.) In aU cases the return must state the time and manner of service. (Id. sec. 71.) In Wisconsin, the summons must be returned, with proof of the service, to the person whose name is subscribed thereto. (Code, J 38; Rev. Stat. 1858, p. 718, $ a.) In Minnesota, proof of the service of the summons must be as follows : 1. If served by the sheriff', his certificate thereof; or, 2. If by another person, his affidavit thereof; 3. In case of publication, the affidavit of the printer, or his foreman, show- ing the same, and an affidavit of the deposit of a copy of the summons in the po.^t- office, if the same shall be deposited ; or, 4. The written admission of the defendant. In case of service otherwise than by publication, the certificate, affidavit or admis- sion, must state the time and place of service. (Public Stat. 539, sec. 53,) (57.) 139 54 KOCEEDINGS A DECREE. [Book I. both cases are similar, the following observations will apply to both species of contempt, except where a distinction is pointed out. Against whom issued.] An attachment for not appearing, or for not answering, cannot issue against the attorney general; whose non- appearance, on being attended with a copy of the bill, will not be con- sidered as a contempt, but as a nil dicit ; {q) nor can such a process be issued against a corporation aggregate ; which being an ideal or invisi- ble person existing only in contemplation of law, cannot be attached or apprehended, (r) Ordinarily, if a feme covert be in contempt, the husband must be included in the attachment, (s) The court has, however, stayed pro- [ *55 ] cess *of contempt against him for want of his wife's answer, where it has appeared by affidavit that she had left him and that he had no power over her. {t) And cases may exist where she may be attached alone; as where her husband is out of the state, and she is sued in respect of a debt on her separate estate ; (m) or where she ob- stinately refuses to join with her husband in his defence, or has com- mitted a tortious act ; (v) or where she has obtained an 'order to answer separately and does not put in her answer in conformity with such order, {^v) It is the duty of the husband, however, as a general rule, to take care that the wife's appearance is entered as well as his own. (a;) And it is also a general rule that process of contempt may be executed against him alone for the contempt of his wife, unless a special order to the contrary is obtained, (y) All the defendants residing in the same county, liable to the attachment, must be named in one writ.(«) How obtained.] The rule authorizing attachments to issue to com- pel an appearance of the defendant, contemplates two cases in which it may be desirable to seek the aid of this process : 1. Where the subpoena has not been personally served; and 3. Where the subpoena' has been personally served, but the complainant wishes a discovery from the defendant. In the first case an appearance is necessary, to enable the complainant to take the bill pro confesso ; unless there has been an order for advertising under the statute, (a) An affidavit should, there- fore, be made by the person who served the subpoena, showing the ser- vice of the same on or before the appearance day therein mentioned; the manner in which it was served ; and an affidavit or other evidence that no appearance has been entered by the defendant. It is not suf- (n) 1 Dan. 1S3, 575. Barclay v. Russell, 2 Dick. 729. (r) Id. 189, 575. (s) Prac. Reg. SS. lij LeiDhlvv. Taylor, 1 Dick. 373. Lloyd v. ISasuet, id. 143.' Garey v. Whittinfcham, 1 Sim &Stii. 163. ' («) Dubois V. Hole. 2 Vern. (i 13. {») 1 Dan. 20B, 575. (TO) Powell V. Prentice. Ridj;\v. P. C. JSS. (k) T.eavitt v. Cniger, 1 Paige, 421. (M) Rule 26. (S) Hinde's Pr. Oi. Cary's Rep. 55. la) Sawyer v. Sawyer, 3 Paige, l&i 140 Chap. 2.] FROCEEDmGS TO A DECREE. 55 ficient for the affidavit to state that the subpcena was duly served, or that the defendant was served with a true copy of a subpoena. The time and mode of service, as well as the cause in which the writ issues must be specified, (i) The affidavit should state the requisition of the writ, oi*the subpoena should be annexed, (c) In the second case provided for in the 32d rule, i. e. where the sub- poena has been personally served, the affidavit should state that the subpoena was served personally upon the defendant, on or before the appearance day therein mentioned — that no appearance has been en- tered — and that *a discovery is necessary from the defendant [ *56 ] as to the matters of the complainant's bill. To obtain an order for an attachment for not answering, an affidavit showing the defendant's de- fault, is also necessary, {d) On filing the affidavit, in either of these cases, the complainant may enter an order of course, that an attachment issue. This order may be drawn either by the complainant's solicitor, or drawn and entered by the register or clerk. Upon the entry of which the latter will seal the at- tachment ; which is generally prepared previously by the solicitor. The affidavit must be filed before the process is issued, (e) Wlien to he tested and made returnaile.] The attachment must be tested in the name of the chancellor, on the day it issues; (/) and it must be made returnable on a regular motion day, or some day in term, unless otherwise specially ordered by the court.(^) The rules prescribe no particular time which shall intervene between the teste and return of this writ. By the English practice, where the party in contempt re- sides in, or within twenty miles of London, the attachment may be made returnable immediately ; and in other cases there must be fifteen days between the teste and return.(7t) To wTiom directed.^ The attachment should be directed and delivered to the sheriff of the county in which the defendant resides, to be exe- cuted by him or one of his deputies. Order to fix amount of hail?[ Before delivering the process to the sheriff, the (complainant should apply to the chancellor or vice chan- cellor before whom the suit is pending, for an order fixing the amount of bail to be taken, (i) If no order is procured, the defendant will be entitled to be discharged from arrest on the attachment, on giving a bond to the sheriff in the penalty of $100, with two sureties, conditioned for his appearance on the return day.(^) Writ how endorsed.'] For the reason just stated, if bail to a greater (6) Hiiioholiffv. Gracie. 1 McCIe. & T. Rep. 277. (c) Rogers v. Ro.sers, 2 Paige, 45S. Ul) Rule 24. (e) Broomhead v. Smitli, 8 Ve3. 357. Gardner v. Rowe, 4 Rn.>s. hli. (/)Rulel9. (o) Rule 26. (ft) 1 Dan. 577. 8. ;i) 2 E. S. 536, 5 10, li. (/;) 1.1. 537, j 15. 141 5Q PEOCMEDINGS TO A BECH^.E. [Book I. amount than $100 is required, the attachment should, be endorsed as follows, before being put into the hands of the sheriff: {Title of catise.} " Attachment for not appearing to the bill of A. B., returnable the day of , 1843. Let the defendant O.^D. give security for his appearance in the sum of $ ... . Dated . . . . , 1843. J. W., Vice Ch." [ *57 ] *How executed.'] The sheriff or deputy to whom the attach- ment is delivered ought to execute the same with all speed and secrecy ; and he cannot dispute the authority of the court out of which it issues ; but he is, at his peril, to execute the same according to the command tliereof.(/) An arrest on a Sunday is absolutely void.('/re) If, however, a defend- ant arrested on a Saturday escapes, he may be retaken ou a Sunday; for that is not an execution of the process, but a continuance of tlie former imprisonment.(?i) ]S"o arrest can take place under an attachment after the return day mentioned therein.(o) If the sheriff does not -receive the attachment in time to arrest the defendant and bring him into court ou the return day, at the place where the attachment is returnable, he should not arrest him thereon, but should return the process tarde.{p) Where the sheriff neglected to serve an attachment until it vs^as too late for the defendant to appear at the time and place where it was returnable, the court set aside the arrest of the defendant thereon. (g) A sheriff or other officer employed to make an arrest under an at- tachment, cannot justify breaking doors for that purpose. And al though the arrest is made by a deputy sheriff or other officer, it is con- sidered as the act of the sheriff, who makes his return accordingly.(r) Upon arresting the defendant on an attachment, it is the duty of the sheriff to keep him in his actual custody, and bring him before the court issuing the wiit ; and to keep and detain him in his custody until the court makes some order in the premises ; unless the defendant enti- tles himself to be discharged by giving a bond for his appearance.(s) If the sheriff lets the defendant go at large without any sureties, it is at his peril ; for after once taking him, the sheriff is bound to keep him safely, so that he be forthcoming in court.(^) And for this purpose he is authorized to keep him in prison till the return day, if necessary to secure his personal attendance.(M) Putting in bail] In cases where a sum has been endorsed on an at- l) Impcv's Sliev. :«. 45, (m) 1 R. S. 675. } 58, (orig. i 69.) (n) Impny's Sher. 61. o) 111. 59. (p) Stafford v. Brown, 4 Paige, :!eO. {q) Id. ib. {r) I Dan. 580. (SI 2 tl. S. .5:W, i I'i. (t) 3 Black, Com. 290. la) 2 U, S. 510, i 37. 143 Oliap. 2.] PROCEEDINGS TO A DECBEE. 57 tacliment issued by the special order of tlie court, or where any sum has heeu so endorsed by any judge or other officer as prescribed by the stat- ute, the defendant must be discharged from arrest an sucli attachment, upon executing and delivering to the officer making the same, at any time before the return day in the writ, a bond with two sufficient sure- *ties in the penalty endorsed on such writ, conditioned that the [ *58 ] defendant will appear on the return of such attachment, and abide the order and judgment of the court thereupon. (w) We have seen that where no order specifying the amount of bail is endorsed upon the attachment, the defendant must be discharged from arrest on giving a bond in the penalty of $100.(?(;) Return q/".] The officer executing the attachment must return the same by tlie return day specified therein, without any previous rule or order for that purpose. And he must return it to the court itself, i. e. to the place where the court is sitting on the return day. In case of default, an attachment may forthwith issue against the officer ; which will not be bailable.(a;) But he may return the same at any time dur- irxg the actual sitting of the court on the return day thereof, unless he is specially directed by the court to return it immediately. It is there- fore irregular to take out an attachment against him ex parte during the sitting of the court on that day.(?/) If the party prosecuting the attachment wishes to expedite the proceedings, however, he may, upon an affidavit of the delivery of the attachment to the proper officer a sufficient time before the return day to have enabled him to serve and return it, and that it has not been returned, move the court, previous to its adjournment on the return day, for an order that such officer return the attachment sedente curia on that day, or that an attachment issue against him, upon filing the register's or clerk's certificate of his default.(2) If the sheriff does not receive the process in time to arrest the defendant and bring him into court on the return day, he should return it tarde.{a) Where the sheriff takes a bond from the defendant on letting him to bail, he must i-eturn it with the attachment, and they are to be filed together.(5) Where the defendant, on being arrested upon an attachment, refuses to give bail for his appearance, the sheriff endorses upon the writ that he has taken the body, and for want of bail has him before the court, in custody. (V) 2 E. S. But), { 13. (w) See ante, p. 56 ; 2 R. S. 537, h 15. {X) 2 R. S. 537. 5 17. People v. Elmer. .S Paige, 85. (j/j People v. Wlieeler, 7 Paige, 43.3. (z) Id. ib. (o) f 'afford v. Brow ii. 4 Paige, 360. (6) 2 R. S. 443, i 10. 143 58 PROCEEniKaSTOADECRBS. [Book I Proceedings on return of writ.'] 1st. Where defendant makes default. If the defendant, on being served with the attachment, gives security for his appearance .at the return day, and makes default, the bond be- [ *59 ] *comes forfeited, and the complainant may prosecute it. And he may have a special order that the defendant's appearance be entered by the register or clerk, or that his bill be taken as confessed, as the case may be ; or ho may take out an alias attachment. If defendant makes default a second time, the complainant may have a pluries attachment which will not be bailable.(c) Where the defendant fails to appear at the return day, the complain- ant usually waits until the close of the sitting of the court, and then moves, upon the attachment and return, that the defendant be called. This is accordingly done by the sergeant at arms, register, or clerk ; stating the title of the cause, and for what the attachment issued. The court then, (upon the defendant's not answering,) grants an order that the defendant's appearance be entered and the bond be prosecuted; or for an alias attachment, or both. The order that the bond may be prosecuted by the complainant operates as an assignment thereof to him, and he may maintain an action upon it in his own name as as- signee of the sheriff.((i) Though the complainant is authorized, under the 27th rule, to make it a part of the order entered on the return of the attachment, that an alias issue, this writ is but seldom resorted to ; as under the same, an order may be obtained that the register or clerk enter an appearance for the defendant. Whenever it is issued, however, it must be return- able on a motion day or in term, unless specially ordered otherwise by the court, (e) There must be the same length of time between the teste and return of this writ, and the same proceedings as to bail, return, &c., as upon the original attachment. If the defendant gives a bond for his appearance and makes default a second time, a pluries attachment may issue, as before observed, which will not be bailable. This writ should not be issued without the special order of the court ; and the certificate of the register or clerk that it is so issued,- should be endorsed upon it. And if such certificate specifies no sum in which the defendant shall be held to bail, he is not bailable.(/) If it is issued without the special order of the court, and no sum is endorsed thereon, the defendant will be enti- tled to be discharged on giving bail in iilOO.(^) The court should fix the return day of the 2}luries attachment. It is (c) Enle 27. 2 E. S. 179 f 79, (oris, i 73J (d) 2 R. S. 539. f 27. (e) Itule 26. (/) 2 R. S. 537, } li. [g) Iii. i 15. IM Chap. 3.] PROCEEDrnGS to a decree. g() *not strictly within the 26th rule ; as it is not for a bailable con- [ *IjO ] tempt; and it may be made returnable in vacation, {h) This writ should be endorsed, " By the special order of the court not bailable." If the defendant is taken on the pluries, the proceedings will be the same as where he is taken and not bailed on an original attachment j the fact of its being a pluries being noticed in the proceedings, (t) 2d. WJiere defendant appears personally, or is Irought in by sheriff. If the defendant appears personally or is brought into court by the sheriff on the return of an attachment for not appearing or not answering, he must enter his appearance or put in his answer and pay the costs incurred by his contempt instauter, or within such time as the court shall then appoint, or be committed until he complies. Or the complainant may have an order that the bill be taken as confessed, and that the def&ndant be committed until the costs are paid, {k) This rule applies only to cases in which the defendant, on being brought before the court upon an attachment, or appearing therein, admits his contempt. If he denies it, the court will cause interroga- tories to be filed specifying the facts and circumstances alleged against the defendant, and requiring his answer thereto ; to which the defend- ant may be required to make written answers on oath within such time as the court shall fix. The court may receive any affidavits or other proofs contradictory, or in confirmation of the answers of the defendant; and upon such evidence must determine whether the de- fendant has been guilty of the misconduct alleged. If the court adjudges that he is gxiilty, and that the misconduct was calculated to or actually did defeat, impair, impede, or prejudice the rights or reme- dies of any party in a cause or matter depending in the court, such court will thea proceed to impose a fine, or to imprison him, or both. (Z) But the fine cannot exceed 1350, over and above the costs and expenses of the proceedings. And the defendant is to be im- prisoned only until he shall have entered his appearance and paid such fine and costs, (m) The mittimus or wan-ant under the order for imprisonment must be under the seal of the court. And the process of commitment, as well as the order therefor, must specify the act to be performed, viz. that the defendant enter his appearance and pay the fine and costs ; and that he be detained until he do so. {n) The costs must be taxed before the (ft) 1 Hoff. Ch. Pr. 133. (t) Ifi. 127. (t) Rule '28. (i) 2 R. S. 537, a 19, 20. (m) Iil. 537, H 22, 23. (n) Id. ib. § 24. Vol. I— 10 145 p,1 FROCEEDINOS TO A DECREE. [Book I. [ *61 J *order is entered or process issued, so that the amount may be in- serted therein. Practice where defendant is already in custody for other causes.^ If, when the attachment is issued against a defendant, he is already in cus- tody of the sheriff by virtue of any execution against his body, or by virtue of any process for other contempts or misconduct, he returns the attachment cepi corpus, and stating that the defendant is in his custody charged at the suit of others. Upon this return, a habeas corpus is issued by the court, directing the sheriff to bring up the body of the defendant to answer for such misconduct, (o) If it be a case in which the party is entitled to an attachment without the special order of the court, the writ of habeas corpus may be allowed by any judge of the court, or by any officer authorized to perform the duties of such judge in vacation; {p) i. e. by the chancellor or by a vice chancellor. It may be remarked here that a vice chancellor has no right to allow a habeas corpus except in cases where he is 'specially authorized to do so by statute. The article of the revised statutes respecting the consti- tution of the court of chancery, &c., {q) in defining the powers of the circuit judges as vice chancellors, only confers upon them, as such vice chancellors, the original jurisdiction and powers possessed by the chan- cellor, in causes and matters in equity, and such as may be vested in him by virtue of any statute. And the right of the chancellor to allow a writ of habeas corpus does not spring from his equity jurisdiction; nor is the proceeding, in such cases, on the equity side of the court, but on the common law side, and is had under the ancient common law jurisdic- tion of the court. Vice chancellors having only the equity powers of the court of chancery, cannot therefore allow a common law writ of ha- beas corpus, but only such statutory writs as are incidental to the exercise of their equity powers in suits and proceedings pending before them.(r) The writ of habeas corpus when issued as above mentioned, will au- thorize the sheriff in whose custody the defendant is, to remove and bring him before the court, and to detain him at the place where it is sitting until some order is made for his disposition, (s) [.*6a ] *The practice is similar to the above where the defendant is in custody on process from this court for contempt, or otherwise, (t) "Where the defendant is in custody on criminal process, the practice is the same, (u) . (o) 2 R. S. 536, S 7. (p)W. ib. }8. (gl Id. 108, 5 2 of art. 1, tit. 2. ()■) The powers of the vice chancellor and assistant vice chancellor of the first circnit and of the vice cliancellorof the eighth circnit, are no more extensive in this respect than those con- ferred npon the other vice chancellors. See 2 K. S. 16S. S 5 ; Laws of liilB, p 85, 8fi. l«) 2 K. S. 536, f 9. [tj Knowles v. Chapman. 2 Kuss. E{. 166, n. Davison v. CoUine id ]S7 (M) 1 Dan. atfi. I Ves. & B. 77. 14G Chap. 2.] PROCEEDINGS TO A DECREE. gO So, it seems, the defendant may be charged in custody. That is, if he is ah-eady in custody for other causes, tlie attachment may be left Avith the sheriff in whose custody he is, and he will be bound to detain liim upon it until he complies with its exigency, although discharged upon the other causes of imprisonment, {v) SECTION III. ATTACHMENT WITH PROCLAMATION'S. If the sheriff to whom the writ of attachment is directed, is not able to take the defendant under it, he returns non est inventus ; upon which a writ called an attachment with proclamation, issues against the party, also directed to the same officer, who is commanded by it to cause pub- lic proclamation to be made in all places within his bailiwick, whereso- ever he shall think it most convenient, that the defendant do, upon his allegiance, appear in the court of chancery on a certain day therein named, and nevertheless in the meantime to attach the defendant if he can be found. To obtain this writ, the attachment, with the return of non est inventus endorsed thereon, must be filed in the office of the reg- ister, assistant register, or clerk. Upon which the writ may be issued, without the entry of an order for that purpose, (iv) The writ of attachment with proclamations is in nearly the same form as the ordinary attachment, with the exception of the introduction of the command to the sheriff to cause the defendant to be proclaimed in the manner before specified. The writ must be endorsed, "By the court, for not appearing," (or, "not ansioering," &c.; {x) and must be tested, signed, and made re- turnable in the same manner as the original attachment. This process is bailable, {y) A sheriff cannot justify breaking open doors, in executing this pro- cess, (z) *If the sheriff cannot succeed in taking the defendant under [ *63 ] the writ of attachment with proclamations, he must make the follow- ing return: "By virtue of this writ to me directed, I have caused public proclamation to be made within my bailiwick, that the within named C. D. do appear on the day and at the place within written, as («U Hoff. Ch. Pr. 13.1. Dick, (i58. (w) Gill), For. Rom. 77. 1 Dan. 601!. (x| Hiiide, 11!. (^1 Newton v. Dent, Kick. ill. Cow. E.\cli. Pr. 153. 1 Da.i. (Kid. (sj Gilb. For. Rom. 70 147 63 PROCEBDT\GS TO A DECREE. [Book I. within I am commanded. And I further certify that the witliin named C. D. is not found in my bailiwick."(«) If the defendant comes in upon the proclamations, or is arrested under the attachment, the return is cepi corpus. The proceedings upon the return of this writ are the same with those upon the first attachment. It is to be observed, however, that after the return of this writ when issued for want of an answer of the defendant, he can only answer. He cannot demur or plead, or plead and answei", except by the special leave of the court.(5) SECTION IV. COMMISSION OF KEBELLIOK. If a defendant, after proclamation made, (whereby he is cited to ap- pear, &c. upon his allegiance,) still continues to disobey, he is consid- ered as a rebel and a contemner of the laws; and the next process which issues against him is a commission of rebellion ; which is a writ issuing out of and under the seal of the court, directed to special commissioners therein named, commanding them jointly and severally to attach, or cause to be attached, the defendant wherever he shall be found within the state, as a rebel and contemner of the laws, &c.(c) To toJwm directed.^ This writ, it is to be observed, is not usually directed to the sheriff, but to commissioners named in the writ ; and the reason why it is so directed is stated to be, because the sheriff can- not be supposed to execute such process in person, and it may be inconvenient to lodge the discretionary powers thereby conferred in the deputies of a ministerial ofBcer ; " wherefore the court appoints its own commissioners, who are enjoined to do every thing very carefully, and are answerable for their misbehavior."(t?) [ *64 ] *Hoiv issuedi] This process, like the previous processes of contempt, may issue without any order.(e) But it seems there must be fifteen days betwen the teste and return, unless a special order is obtained ; and it appears to be the better opinion that it cannot be made returnable at any other time than in term.(/) It is therefore a safer course to apply to the court ex parte, for an order that the com- mission issue. (a) Imp. Off. Sheriff, 33S. (6) Sanders v. Murney, 1 Sim. & Stn. Eep. 225. 1 Dan. 608. i,c) Hiiide, 117. (rf) Irt. 116. lUan. 610. (el Dove v. Dove, Dick. 618. For. Rom. 7S. 1 Fow. Jfixoh. Pr. 157. Barton, 86. {/) Sec 1 Iloff. Ch. Pr. 140. 1 Dan. 01:!. 148 Chap. 3. J PROCEEDINGS TO A DECREE. g4 The commission is usually directed to two, three, or four commis- sioners, iu the discretion of tlie complainant; and they are named by him.((/) JIoio executed.'] Upon the receipt of this writ, the commissioners are bound to arrest the defendant wherever they can find him'; and it seems that they may, for this purpose, break open his house, or the house of any other person in which he may happen to be;(A) because the object of the writ is to deprive him of the protection by law, to which, as "a rebel and contemner "of the law," he is no longer considered entitled; and therefore it implies an authority to enter into the house.(i) It seems, however, to be considered that in such a case it is advisable for the commissioners making the arrest to have a peace oflScer with them;(^) and for this purpose, the commission commands all mayors, sheriffs, bailiffs, and constables, and all other officers and citizens to render their aid and assistance to the commissioners in the execution of their duty. In England, a defendant may be arrested upon a commission of rebellion on a Sunday; but only in cases of necessity.(Z) In this state, however, it seems clear the arrest, even upon this process, cannot be lawfully made on Sunday, in any case.(?M) The commissioners have power, under the commission, to call in the aid of the sheriff, or any other peace ofScer, to assist them in taking the party, (w) If the defendant is taken, under a commission in term time, the com- missioners should bring him before the court immediately ;(o) but if the arrest takes place in vacation, and good security is offered for the de- fendant's appearance, the commissioners not only may, but ought to, take *it. {p) If bail is not offered, in such a case, the commissioners, [ *65 ] in analogy with the practice upon attachments, ought to keep the de- fendant in their actual custody until the sitting of the court, and then to bring him personally before the court, and to keep and detain him in their custody until the court shall have made some order in the premises, {q) And it is presumed the commissioners would not be re- quired or even authorized to confine the defendant in prison or other- wise restrain him of his liberty, except so far as necessary to secure his personal attendance, (r) Though the English practice is to lodge (ffU Fow. Exch. Pr. 157. Hinde'8 Pr. 123. (7») Prao. Ees, 120. 1 Dan. 613. (») 1 Newl. U. i*) Iliiifle, IIB. (I) Id. 110, 131. Prac. Reg. 30. (»t) See 1 It. S. 675, } 58, (orig. S 69.) Unless inrleerl it is a crime to i-ebel astaiiist and contemn the laws. If so, this process may, upon that gi-onnd, be e.\ecuted on Sunday, uuder the sec- tion refer)ed to. „ .„ ,„ («) I Vnw. Ex. Pr. 162. (o) Prac Reg. 129. „ , .„ (MlJ.nies 7. Clement, Biinh. 50. Hinrte. llfl. CaiT, 82. Prac. High Court Oh. 3. Tothilfs Trans. 37. 13) See 2 K. S. 536, ! \i. [r] Id. 510, 5 37. 149 65 PROCEEDINGS TO A DECREE. [Book I. the defendant either iu the Fleet prison, (s) or in the custody of the sheriff, for safe keeping, (t) If the commissioners permit the defendant to escape after they have arrested him, they will be committed till they produce him. {u) If he be rescued, the rescner will be committed, {v) Jieturn.] The return to this process is made by two or more of the commissioners who act under it. When the commissioners are unable to find the defendant, the return shall be endorsed upon the writ in the following form : " We whose names are hereunto subscribed, being two of the com- missioners within named, do hereby certify to this honorable court that we have made diligent search and inquiry after the within named 0. D.; but notwithstanding all our endeavors for the purpose, we cannot meet with him, so as to attach his body by virtue of this commission. Wit- ness our hands this day of A. A B ) f ' d' f Commissioners."(w) Return, hoiu compelled.'] By the English practice, if the commission- ers neglect or refuse to make a return to the commission, the court, on motion or petition, will order them to return it ; and upon disobedience to the order, the court will, upon motion, grounded on affidavit of ser- vice of the order, commit them ; for not being parties to the suit, no writ of execution of the order is required to bring them into contempt. {x) Under the revised statutes, the order would be that they i-eturn the writ by a certain specified day, or that an attachment issue against them. («/) [ *66 ] *Gepi Corpus.] Where the party is arrested upon a commis- sion and brought before the court, the practice is substantially the same as that upon the return of an attachment.(2:) SECTION" V. SEEGEAIS'T AT ARMS. By the English practice, upon a return of non est inventus by the commissioners, or any two of them, the court will, on motion, order the party to stand committed, and for that purpose grants a warrant to the (») 1 HaiT. Ch. Pr. 129. [t) Cavy. 115. (k) SaohevereU . . Sacheverell, Toth. 38. (u) Hinde, 118. (mj) 1 Smith, 118. (x)lDan.m5. (y) 2 R. S. 636, i 6; 531, i 1, sub. 1. (ai See ante, p. 58 ct seq. 150 Chap. 3.] I'MOCSBDIXGH TO A DECREK (5(] sergeant at arms to take him into custody, (a) It seems, however, from ilr. Hoffman's Practice, that the English course in this respect cannot be pursued here ; our statute having virtually taken away from the ser- geant at arms the power of executing the process of the court, (b) The sheriffs of the respective counties are made officers of the court of chancery for the purpose of executing the process thereof, (c) And the sheriff of the county in which any stated term shall be held by the chaucellor, or by any vice chancellor, is required to attend during its sitting, and to execute all the powers and duties of a sergeant at arms, and may execute the lawful process and orders of the court in auy county of the state, (d) Under these provisions of the statute, Mr. Hoffman lays it down that upon the return of a commission of rebellion non est, the court, on application made in term, may issue a warrant to the attending sheriff, describing him as " the sheriff attending the court and executing all the powers and duties of a sergeant at arms," directing him to appre- hend the defendant, (e) The practice of sending the sergeant at arms, when the ordinary pro- cesses of contempt have failed, has been adopted by the court, ex abun- doMti cautela, lest there may have been any negligence in the ordinary officers or ministers of justice to whom the execution of the writs of at- tachment are entrusted, or lest the commissioners of rebellion (persons nominated by the complainant,) should collude with, or be warped by, their employer to the prejudice of the defendant. To guard against which, the court, to satisfy its conscience, and to be informed whether *the defendant doth actually hide himself from justice of not, [ *67 ] sends an officer of its own ; upon whose return only can a regular sequestration be issued.(/) No return day is fixed in the order for this process ; but it should be made returnable immediately, {g) The duty of the sergeant at arms, or sheriff acting as such, upon re- ceiving the warrant, is to arrest the defendant wherever he can find him; and it appears that he is armed with very extensive powers for that purpose. (7t) Baill\ The sergeant at arms can take no bail bond. Therefore if he takes a party in execution, he must keep him in custody until the return, if any return day is specified, and if not, he must bring him up to the bar of the court immediately. But if the defendant be taken for want of appearance or answer, he may, upon entering his (al 1 Dan. 610. (6) See 1 Hoff. Ch. Pr. 138, n. (c) 2 B. S. 172, S 32. (orig. } 29.) '(/) !■! ill. } 3i, (ovig. i SI.) (e) 1 Hoff. Ch. Pr. U4. (f) 1 Dan. 617. Hiiule, 123. (g) 1 Hoff. 114. CO 1 Dan. 625. 151 g 7 PBOCSJUDIXGS TO A DEVSEE. [Book I. appearance or filing his answer and paying the costs of liis contempt, be discharged. And if the complainant's solicitor refuses to dis- charge him, the court will, upon motion or petition, order his dis • charge, {i) Where the sergeant at arms has been sent, for a contempt in not putting in an answer, the defendant is entitled to his discharge imme- diately on putting in his answer and clearing his contempt ; and is not to be kept in custody until the sufficiency of the answer has been de- cided upon. And if in such a case, the sergeant at arms refuse to discharge him, the defendant must apply, by motion or petition, upon a certificate from the register or clerk, that the answer has been filed and the costs of the contempt have been tendered or paid (as the case may be) ; and the court will make an order for his discharge ; which must be served upon the sheriff or his deputy having the defendant in his custody. And a refusal to obey such an order would be a contiimjit of court, {k) When the party is brought up to the bar of the court by the sergeant at arms, he will be dealt with in the same manner as upon an attach- ment; the style of the process being changed. If the sergeant at arms cannot succeed in arresting the defendant, he makes a certificate or return of non est inventus upon the back of the warrant; which must be filed in the proper office before a writ of sequestration, which is the next process, can regularly issue.(?) [*68] *SEOTION VI. SEQUESTRATION'. After the sergeant at arms has been ordered to take a defendant into ciistody for a contempt upon mesne process, and has returned non est inventus, or, " a rescue," or, " that he has been resisted in the execu- tion of his duty," the next process which issues to compel the obedi- ence of the party is a sequestration. Nature of the process!] The process of sequestration is a writ or commission issuing out of, and under the seal of the court, directed to the sheriff, or, (which is most usual,) to certain persons of the com- plainant's owu nomination, empowering him or them to enter upon and sequester the real and personal estate and effects of the defendant, (i) lb. ill. Ilinde, 12C. (k) Waters v. Tajlor, 16 Ves. 418. (I) Hindc, IW. 152 Oliap. 3.] PROCBEDTNGS TO A DECREE. 68 (or some particular part or parcel of his lands,) and to take, receive, arid sequester the rents, issues, and profits thereof, and keep the same in their hands, or pay the same in such manner ffcid to such persons as tlie court shall, in its discretion, appoint, until the defendant shall have appeared to or answered the complainant's bill, (or performed some other matter which has been ordered and enjoined by the court, in the process specifically mentioned,) and for not doing whereof he is in contempt, (wt) To whom directed.] A sequestration upon mesne process is usually directed to four sequestrators ; and care ought to be taken that the persons named are such as are able to answer for what shall come to their hands in case they should be called upon to account, (n) When issued.] A sequestration may not only be issued upon a re- turn of nan est inventus by the sergeant at arms, but it may issue ■where the defendant resists the sergeant at arms, or makes a rescue, (o) And in cases of contempts in the non-performance of a decree or order of the court, sequestrations may be issued, although the sergeant at arms has not been sent; as where a defendant is already in custody under an attachment or other process of contempt, and obstinately persists in his contempt. It may also be issued to enforce a decree or order where the defendant is in custody in another suit, either at law or in equity, or npon criminal process. ( jj) * Obtained upon motion only.\ This writ is always obtained up- [ *69 ] on motion. If it be moved for upon a return of no7i est inventus by the sergeant at arms, the return must be filed before the motion is made, (q) If the party in contempt has resisted the sergeant, or having been taken has made his escape and stands out in contempt, the motion should be supported by an affidavit of the facts, (r) Order for.] The motion for a sequestration having been granted, the order is drawn and entered, and the writ made out in the proper form and sealed by the register or clerk. Writ, how endorsed.] The writ having been sealed, and signed by the register or clerk, and the solicitor for the complainant, is to be endorsed as follows : " A commission of sequestration against 0. D. defendant, at the suit of A. B. complainant, (s) When to be executed.] An opinion formerly prevailed in the profes- sion that a sequestration upon mesne process ought not to be executed, and that the complainant, instead of having it carried into effect, ought merely, upon its issuing, to proceed to take the bill pro confesso against CmJ Hinile. 127. Cnl 1 Har. US. (o) I Dan. B30. CpJ Ifl. il). Movrice v. Bank of England, Tiilb. Cas. 222. Kiiisey v. 'Xardley, Dick. 286. r?; Hinde, 13ii. floyd v. Nangle, 3 Atk. 569. (rj Hmde, V.M. rs; Id. 13S. 153 Q9 PROCEEDINGS TO A DECREE. [Book I. the defendant, (t) The practice, whatever doubt there might have been about it formerly, appears to be now settled that if the process is for. an appearance, the cgjirt will authorize the execution of it by directing the sequestrators to take possession of what is tangible, to sequester rents or money in the hands of others, by notice and service of the or- der ; and will follow this up if necessary by the usual order to attorn, or for payment into court, (m) If the process issues for want of an an- swer, the complainant has an option whether he will proceed .to take the bill pro confesso or to compel an answer. If the circumstances of the case are such that justice can be obtained by taking the bill ^ro confesso, he ought not to cause the sequestration to be executed ; but if the case is such that an answer is necessary, he may enforce it in this manner The cases, however, in which a complainant can have occasion to com- pel an answer from a defendant, instead of taking the bill pro confesso against him, are comparatively rare ; and are in general confined to bills of discovery, where the answer is wanted, to be read at law, or to obtain some admission on which to found some application to the court. Except in such cases, the proper course is to take the bill p'>'0 con- fesso. («') [ *70 ] *How to be executed.'] Where a sequestration upon mesne pro- cess is to be executed, it should be delivered by the solicitor to the seques- trators, with proper instructions for caiTying it into effect, (iv) Notice should be given to any persons holding funds or property of the defendant not to pay over or deliver the same to him or for his use. Regularly, a copy of the commission should be served with this no- tice. («) The sequestrators are officers of the court, and, as such, are amenable to its authority, and are to act from time to time in the execution of their of&ce as they shall be directed. They are to account for what comes to their hands, and are to bring the money into court as they shall be directed. Such money, however, is not usually paid to the complainant, but is to remain in court until the defendant has appeared, or answered, or cleared his contempt ; and then whatsoever has been seized shall be accounted for and paid over to him. [y) In this respect, there is a difference between a sequestration upon mesne process and a sequestration to compel the payment of money under an order or de- cree. In the latter case, after the process has been executed and goods and estate sequestered under it, the complainant may have them applied (t) 1 Dan. 631. Eowley v. Ridley, Dick. 677. (u) Franklin v. Oolqnhon, 3 Swiinst. 309. 1 Hoff. Cti. Pr. 149. (V) 1 Dan, 632. (w) 1 Dan. 1135. Cx) Simmons y. Kinnaivd, 4 Ves. 743. Itowley v. Uidley, Dick. (;32. (y) Hinde, 138. 154 Chap. 3.] FROCEEDixas to a decree. 70 to satisfy his demand; which cannot bo done upon process of eon- tempt, (z) It is said, however, that even in the case of a sequestration upon mesne process, the court has the whole under its power, and may do therein as it pleases, and as shall be most agTeeable to the justice and equity of the case, (a) And, in one case, {h) where a defendant in contempt for want of an answer, had stood out the whole process to a sequestration, whereupon the bill was taken 2^'^o confesso against him, and a decree made ad computandum, the court refused to discharge the sequestration on the defendant's paying the costs of contempt only ; but kept it on foot as a security for his appearing before the master to account, (c) Wiat things may he seized under sequestration.'] Under a sequestra- tion upon mesne process, the sequestrators may take possession of all the defendant's goods and chattels, {d ) By this is meant those goods and chattels only which are in the possession of the defendant, or which can *be reached without suit, or action ; for cJioses in action cannot [ *71 ] be sequestered, (e) Powers and duty of sequestrators.] Sequestrators have the power to break open doors, in the execution of their duty.(/) So they may open boxes and rooms that are locked, if the keys are denied them, and schedule the goods in them. But they have no right to remove any thing from the house without the special order of the court.((/) Indeed, it seems, that if the sequestrators take upon themselves to I'emove the defendant's property, they will be liable to an attach- ment.(A) They are bound, however, to keep the defendant not merely nominally, but really out of possession of his property. The court must not be trifled with, and its process must be made eflectual.{i) The sequestrators are authorized to enter into the possession of such parts of the defendant's real estate as are in his own occupation, whether freehold or eopyhold.(A) Attornment of tenants.] On entering upon a defendant's estate, the sequestrators should serve the tenants in possession, if there are any, with a notice in writing to attorn and pay their arrears and growing rents to them. This may be done either personally, by serving the tenant with the notice, and at the same time showing him the seques- tration under seal; or by leaving the notice at his dwelling-house, (z) Davis V. Davis, 2 Atk. 2^. (a) 1 Daa. 635. (b) Maynard v. Pomfret, 3 Atk. 4S)S. (a) See also Shaw v. Wright 3 Ves. 22. (d) I Barnard. 431. (e) 1 Dan. f>37. 4 Ves. 714. Joliiison v. ChippindaU, 2 Sim. .i5. Feiitoii v. Lowtlier, 1 Cox, 31.i. Dundass v. Dutens, 1 Ves. jiin. lUK. (f) Lowtcn V. Mayor of Colcliester, 2 Meviv. 3115. (r() Lord Pelham v. Duchess of Newcastle, 3 Swans. 290, n. (h) De.'iUniw \-. Cronimie, TSunli. 272. (i) Hales v. Shaftoe, 1 Ves. jnn. 8G. kj I Barnard. 431. Coulslou v. Gardiner, 2 Ch. (Ja. 7G. ' | 155 _,' 71 PROCEEDINGS TO A DECREE. [Book I. with some member of his family, together with a copy of the seques- tration, and showing the original wi'it to the person served.(Z) Upon an affidavit of this service, au order will be granted that the tenants attorn, and pay their rents to the sequestrators.(?)!) This order should be made upon the tenants by name, and not upon the tenants of the defendant generally.(w) The tenants will be protected if they voluntarily pay their rents to the sequestrators.(o) And if they refuse to attorn or pay their rents, after service of the order, they may be proceeded against as for a con- tempt. Where the sequestration is for the non-performance of a decree, the court will, on proper application, give them authority to let the proper- [ *72] *ty;(^) but no such authority will be given where the seques- tration is upon mesne process.(g') Sale of goods.] As the sequestrators, upon mesne process, have no power to remove goods, much less have they power to sell them. If a sale is necessary, application should be made to the court for permis- sion to sell ; but an order for the sale of goods taken upon mesne pro- cess, will scarcely ever be made, unless for the purpose of raising money to pay the expenses of the sequestration, or where the goods are of a perishable nature, such as rents paid in kind, or the natural pro- duce of a farm.(r) And whenever an order to sell property taken under a sequestration to enforce a decree or order is applied for, it must be upon notice.(s) Whether such an order can be made without notice, upon a sequestration on mesne process, does not appear. If notice is necessary, however, it can only be where the process was issued to compel an answer, after appearance. Where the process is to compel appearance, no personal notice can be given, because there is no person upon whom it can be served.(^) The application for a sale may be made either by motion or peti- tion. (««) Sequestrators to account, dec] Sequestrators upon mesne process are accountable for all that they receive, and can only retain so far as to satisfy for the contempt.(i») They are bound, from time to time, to make returns to the court of what comes to their hands under the sequestration. (?w) And if they omit to do so, they will not be permit- ted to set off their fees, (a;) Cl) 1 Dan. Ch. Pi-. 461. Fow. Ex. Pr. 176. (m) 1 Fow. Ex. Pr. 17S. riU Anon. 2 Clia. Ca. 163. (o) i How. Eq. Side, 781. (p) Neale v. Nealc, 3 Swanst. 304. n. ra). Harvey v. Harvey, 2 Cli. Kep. 49. (qj Kay v. , 3 Swanst. 306, n. (aj. (r) Shaw v. WriRht, 3 Ves. 22. Wilcooko V. VVilcocks, Amb. 421. 1 Dan. Ch. Pr. 039. (sj Milchell v. Draper, 9 Ves, 208. (t) 1 Dan. 640. (u) 9 Ves. 208. Anib, 421. (v) Gibson v. Scevengtou. 1 Vein. 247. (wj Dcsbrow v. Urommie, Biiiib. 272. (xj Hawliins v. C'roolt, o Atlv. 394. 156 Cliaj). 2.] PROCEEDINGS TO A DECREE. 72 Upon the sequestrators retiu-ning that they have money in their pos- session, the court will, upon application, order it to be paid into court, to the credit of the cause, and invested; but the costs may be pre- yiously taxed and retained.(«/) Writ of assistance!] If the sequestrators are obstructed in the exe- cution of their duty, the court will grant a writ of assistance to the sheriff, to aid them.(z) And it is a contempt of court to disturb them in their possession of property taken under the sequestration. (a) ^Examination pro interesse suo.] Where any person claims [*73] title to an estate or other property sequestrated, whether by mortgage or judgment, lease or otherwise, or he has a title paramount to the se- questration, the proper course for him is to apply to the court to direct the complainant to exhibit interrogatories before a master, in order that the party applying may be examined as to his title to the estate.(J) An examination of this sort is called an exammskiion pro interesse sua, and an order for it may be obtained as well where the property consists of goods and chattels, or personalty, as where it is real estate.(c) An order for the examination of a party pro interesse sua may be ob- tained as a matter of course by the party claiming. But it cannot be granted until after the sequestrators have made a return ; because, till then, it cannot appear to the court what is sequester'ed.((^) The ap- plication for this order may be made either by motion or petition. (e) If made by the former, it should be supported by affidavit, stating the facts under which the claim arises. If made by the latter, the petition ought to state the circumstances of the case.(/) An order for the examination of a party ^ro interesse suo may not only be granted upon his own application, but upon the application of the complainant in the suit.(^) In all orders for the complainant to examine a party j?ro interesse suo, there should be a time limited within which the interrogatories must be exhibited.(7») According to the English practice, the inter- rogatories must be settled by a master ;(«') and if the claimant, after the interrogatories have been exhibited and settled, neglects to put in his examination, the court will order him to do so, and to procure tlie master's report within a specified time.{i) When the examination has Cy) Howell t. Lord Coningshy, 1 Fow. Ex. Pr. IGl. (z) Greenslade v. Baker, Biinb. 168. 1 Dan. fi43. Ca) Angel v. Smith, 9 Ves. 836. 3 Swanst. 2a0, n. (b) Anon. 6 Ves. 287. 9 id. 336. Brooks v. Gimathead, 1 Jac. & W. 178. CO Lord Pelliam v. The Duchess of Ne\ycastle, 3 Swanst. '290, n. 1 Fow. E.x. Pr. 160. (il) la lb (e) Huntv. Priest, 2 Dick. 5-10. (f) 1 Dan. 044. rg) Bird v. Littlehales, 3 Swaust. 299, 300, n. raj. Hamlyu v. Lee, Seaton on Decrees, 411. Johns V. Claugii ton, Jac. 573. ,.,„ , „ ■■•,■■,„ fkj Himt V. Priest, 2 Dick. 540. (%) Bowles v. Parsons, 1 id. 142. (k) Cooper v. Thornton, id. 72. 157 73 FEOCEEDINGS TO A DECREE. [Book I. been put in, the complainant, if he disputes its truth, must reply to it : otherwise it will be conclusive ;(Z) and the claimant may then apjjly for a reference to a master to look into the interrogatories and the ex- amination, and to certify whether the claimant has made out a title or not.(wi) If the examination is replied to, leaA^e will be given to either party to examine witnesses ; and this will be done by order made upon mo- [ *74 ] *tion without notice.(») After the witnesses have been ex- amined, publication passes, by order ; and an order is then entered to refer it to a master to look into the examination and depositions, and to certify whether the claimant has made out any, and what, interest in the premises, or in any, and what, part thereof (o) (19) "When the master has made his report, the case should be set down for hearing upon the report. This report cannot be excepted to : if either party objects to the master's finding, the matter should be dis- cussed upon hearing the report.(/3) Upon the hearing on the report, the court will either make a final order,(2') or send it back to the mas- ter to make further inquiries, or to compute principal and interest upon the amount due to the claimant.(r) If it is sent back to the master, it may, if necessary, be heard upon further directions.(s) When it appeai-s that a party who has been examined pro intcresse suo has a plain title to the property, and is not affected by the seques- tration, then it is to be discharged against him, with or without costs, as the court shall determine upon the circumstances of the case ; and so vice versa.{t) Injunction to stay proceedings at law.] "Where sequestrators or a re- ceiver are in the possession of pi-operty belonging to a defendant, and a party claiming that property adversely to the defendant brings an ac- tion of ejectment against the sequestrators or receiver, for the purpose of enforcing his claim, the court will interfere by injunction to prevent the party claiming from proceeding with the ejectment ; for although the court will sometimes permit the party to proceed at law against the sequestrators or receiver, where a matter is in a fit state for the right to be ascertained by a trial at law, such a proceeding cannot be adopted unless the permission of the court has been first obtained!(M) (I) Attorney Gen. v. Mayor of Cnventry, 4 Swanst. 311, n. (m) Seiiton on Jlof-rees. 415. 1 Dick. 143. (n) Kowley v. Riciley, 3 Swanst. 308, n. (o) Hunt v. Priest, 2 Dick. 541. (pj 1 Dan. 649. Cooper v. Thoi-jiton, 1 Dick. 73. Ilamlyn v. Lee, id. 94. (q) 1 Dick 73. (r) Id. 94. (8) M. ib. (t) i Dan. 649. Gilb. For. Rom. 81. (it) Seaton on Decrees. 413. Jao. 573. Attorney Gen. v. Mayor of Coventi-y, 1 P. Wins. 308. Angel V. Smith, 9 Vcs. 335. Brooks v. Greatliead, 1 Jac. & W. 178. (19.) Hove, under the old chaucerr system, the party was examined prointercsse suo, before the master directly, and not on interrogatories before an examiner. 158 Chap. 2.J PROCEEDINGS TO A DECREE. 74 When trial at law, or reference toill he directed.'] Where a party ' chiiming the legal right to property sequestered has made an applica- tion to be examined ^ro interesse suo, the court has sometimes, instead of granting the order prayed for, given the party leave to try his title at law, either by ejectment or in such other manner as may be necessary for the purpose of deciding the point.(i') And sometimes the court *has at once referred it to the master to inquire whether the [ *75 ] party claiming is entitled to any interest in the property ; and where the right of the party has been clear and undisputed, the court has at once made the order in his behalf, without either directing an exami- nation pro interesse suo, or referring it to the master to inquire into the existence of the right.(z6') Effect of appointing a receiver.] The appointment of a receiver of the rents and profits of lands of which sequestrators are in possession, will discharge the sequestration, {x) Abatement of suit by death of parties.] A sequestration against a defendant upon mesne process abates on the death of the complainant, but it is revived with the suit, if that is revived ; [y) and the court will not, immediately upon the abatement of the suit, turn the seques- trators out of possession, but will give time for the revival of the suit. («) "Where the defendant himself, against whom the sequestration has issued, dies, the process, being personal, not only abates, but falls altogether, and caunot be revived; though it is otherwise where it has issued for the non-performance of a decree, (a) Sequestrator abusing his power.] Where a sequestrator abuses his power, the court will, upon a representation of the facts, raake aiU order that he shall show cause on a particular day why he sh^'uld not be committed, and pay the costs to the party complaining, (b) Costs.] The costs of a sequestration are not liquidated, 'jut are costs to be taxed by one of the masters of the court. Someti ^es the sequestrators are allowed a poundage, and sometimes, under ■•■.cum- stances of trouble and expense, a specific sum in solido. (c) ri;; Walker T.Bell, 2 Marl. 21. 1-P. Wins. 308. ..,.,,,„. ,-, (wj Dixon V. Smith. 1 Swanst. 457. Uiclii.ison v Smith, 4 Mad. J/T i-r-i TTpvn V Hevn Jao 49. W Hyde V. loster, 1 Dick. 132. rJ White V Heywa*d 2 Ves. 461. CaJ Hawkins v. Crook, 3 Atk. 5M (bj Lord PelhamTLOTd Harley, 3 Swanst. 291, n. (cj 1 Dan. Ch. Pr. 65<1 15!) 75 PJiOCEBI}n\GS TO A DECBEE. [Book I. SECTION VII. PROCESS AGAINST COBPORATION'S. A corporation aggregate, being an ideal and invisible person, exist- ing only in contemplation of law, cannot be attached or apprehended. Tlie proceedings against them, either for the purpose of compelling an [ *76 ] appearance *or an answer, are therefore commenced by distrain- ing the property of the corporation. For this purpose a writ of dis- tringas is the first process. It is a writ directed to the sheriff, commanding him to distrain the land, goods, and chattels of the cor- poration, so that they may not possess them till the court shall make other order to the contrary ; and that in the meantime the sheriff do answer to the court for what he so distrains, so that the defendant may be compelled to appear in chancery and answer the con- tempt, [d) Teste and return.] By the English practice, there must be fifteen diiys between the teste and return of this writ. It is made out by the register or clerk, upon an affidavit of the proper service of the sub- pcena. (e) An order must be entered before this writ issues; and it would be the safest course to apply to the court, ex parte, for such order, and have the return day fixed by the court. (/) Alias and pluries distringas.] Upon a distringas, if the corporation has property, the sheriif usually levies 40s. only, and makes his return accordingly ; and if this execution does not procure the obedience of the corporation, an alias distringas may be obtained. This is a writ commanding the sheriff again to distrain the goods and chattels, lands and tenements of the corporation. Upon this writ, the sheriff usually levies 4?. ; and if, after that, the corporation still continues disobedient, a pluries distringas issues, upon which he levies on the whole prop- erty, {g) Sequestration.] If the pluries distringas fails of effect, upon its being returned by the sheriff, a commission of sequestration may be obtained against the corporation. This commission is usually directed to five persons named by the complainant, directing them to sequester the goods and chattels, the rents and profits and real estate of the cor- poration, until they shall appear or answer the complainant's bill, or (d) 1 Dan. 190. (e) 1 Harr. Ch. Vr. 197. (f) 1 Hoff. Cli. Pr. 164. (g) 1 Dan. lUO. 1 Hoff. Ch. Pr. 164. IfiO Chap. 2,"J PROCEEDINGS TO A DECREE, 78 the court make further order to the contrary. A sequestration cannot be discharged till the corporation have performed what they are en- joined to do, and paid the costs of the several distringases, and of the sequestration, including the commissioners' fees. But upon their doing this, they may, upon motion, get the sequestration dis- charged, (h) After a sequestration has been issued against a corporation, the com- plainant may, if he pleases, set down the cause to be heard, and have *the bill taken ji>ro confesso against them, in the same way as [ *77 ] may be done in the case of an ordinary person, (i) Process to compel appearance of corporaiion where it has no proper- ty.^ In the case of Curzon v. The African Company, {k) Lord Keeper North is reported to have said, that he did not see how a company who had no property could be compelled to appear. In answer to which it was said, in argument, that in such a case the complainant might sue out a distringas againSt the company and have it returned nihil, and so get a sequestration against them ; and then by the course of the court, the complainant need not bring them to a hearing. (h) Id. ib. (i) 1 Dao. 190. (k) 1 Vera. 132, Vol. 1.— 11 161 77 PROCEEDIXaS TO A DECREE. fBook I. CHAPTER IIL APPEARANCE. Sect 1. Of appbakance in. Gbneeal. 3. Voluntary Appearance. 3. Compulsory Appearance. 4. Appearing Gratis. 6. Appearance by Married "Women. 6. Appearance by Infants. 7. Appearance by Idiots, Lunatics, &o. 8. Appearance by Corporations. SECTION I. OP APPEARANCE IN GENERAL. Nature q/".] Appearance is the formal proceeding by whicli the de- fendant submits himself to the jurisdiction of the court. (1) (1) Appearance in General. 'So appearance by the defendant is now necessary, to enable the plaintiff to obtain a judgment against him ; for, from the time of the service of the summons, or the allowance of a provisional remedy, the court is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. (Code, § 139.) But if the defendant intends to defend the suit, bis attorney, (assuming that the summons is i-egular and has been regularly served, in order to obtain a copy of the complaint, in case n(me has been served upon him,) must, withiu twenty days after personal ser- vice of the summons, or twenty days after the expiration of the full time specified in the order ot publication, from the first publishing of the notice, (in case service has been mad« in that way,) serve a notice iu writing that he appears for the defendants, or one or more of them, demanding that a copy of the complaint be served on him, at some specified place within the state. (Code, $ 130.) A copy thereof must be served within twenty days thereafter, if the notice is served personally, or forty, if served by mail. i(Ib. § 412.) If the defendant's attorney chooses, ho may serve notice of.-,ap{)Barance merely, without demanding a copy of the complaint. This will entitle him to notice of the application for judgment, (which may then be made, by the plaintiff, .at the end of the twenty days,) and of every subsequent step in the action. (Tan Sant. Eg. Pr. 147.-) But a notice of retainer, served after the time to auswer has expired, does not entitle the defendant to notice of an applicati J? 1 1 1 After a defendant has appeared, an application by the plamtiflf for leave to amend must be on notice to him. (Hewett v. Howell, 8 How. Pr. 346 ) But au appearance does not entitle the defendant to notice ot an apphcation lor a provisional remedy. The provision in section 414 of the Code, that where a defend- ant shall not have demurred or answered, service of notice or papers in the ordinary vroceedirws in an action need uot be made upcm him; but U' notice of appearance has been ^iven seiTioe shall be made upon him, or his attorney, does not embrace provisional remedies. (Becker v. Heyer, 8 How. Pr. 69.) These are not " oi^mary T)roccedm"-s " within the sense of that term as used in this section. . Hence, thouga '■ ° 165 7g PROCEEDINaS TO A DECREE. [Book [. the cause, after personal service of the subpoena, he will not be entitled to the service of subsequent notices and papers upon him or his agent, {h) But a party who has appeared in the cause is entitled tc 11 itice of such of the subsequent proceedings as may affect his rights or interests, although he is in contempt and the bill has been taken as confessed against him for want of an answer, (i) [*79] *SECTION II. ' TOLUNTAKY APPEARANCE. A voluntary appearance is where the defendant, on being served with a subpoena, obeys its injunction by entering his appearance in the proper place, and serving notice thereof on the complainant's solicitor, within the time limited by the rules of the court. (5) (h) Wells V. Crager, 5 Paige, 161. (i) King t. Bryant, 3 Myl. & Craig, 191. a defendant has appeared, he is not entitled to notice of an application for an order to an-est him. Neither is he entitled to notice of an application for an injunction, before he has answered. (lb.) In Indiana, a full appearance, at any stage of the proceedings, waives previous irregularities. Thus, an appearance at a trial, after a contimiance of the cause to the next term, waives that irregularity. (Bicfc. Civil Pr. 81 ; 2 Bid. 402.) Appear- ance and trial waive in-egularities in a change of venue, ([b. 2 Bid. 61 ; 4 Ind. Eep. 268.) So an appearance without objection waives a previous discontinuance. (12 Ind. Rep. 426;) even after verdict. (4 Ind. Rep. 268.) The defendant'.s appearance, however, will not cure a defect of jurisdiction in the court a.s to the subject of the action. Whenever that defect appears, the suit must be dismissed. ^8 Ind. R. 320.) If an attorney appears for a part only of the defendants, and inadvertently answers for all, and obtains leave of the court to withdraw the answer, and substitute a new one answering for the parties only, for whom he appears, the court acquires jurisdic- tion only of those for whom he appears. {Forbes v. Hyde, 31 Cal. 342.) (5) YOLUNTAEY APPEARANCE. A voluntary appearance of a defendant is equivalent to personal service of the summons upon him. (Code of ]S"ew York, § 139 ; of Ohio. § 65 ; of "Wisconsin, § 44 ; of Kansas, § 73 ; Pub. Stat, of Minnesota, 1859, p. 539, § 50.; That is, for the purposes of jurisdiction, unless he expressly limits the appearance of. his attorney to the pm-pose of setting aside proceedings. {Freeman v. Young, 3 Rob. 666.) Tet it was held, in Macomber v. The Mayor, &o. of New York, (17 Ah^ 35,) that a volun- tary appearance in an action gives jurisdiction and cures defeotsln previous process, but will not justify a judgment on failure to answer, without proof of the actual service of the summons. In California, a voluntary appearance by a defendant gives jurisdiction without the issuing of a summons. (Cal. Pr. Act, § 35 ; Hayes v. Shattuck, 21 Cal. 51. See also Carrington v. Bents, 1 McLean, 174 ; Shields v. Thomas, 18 How. U. S. 253.) The only object of a summons is to bring a party into court, and if that object is attained without issuing or serving process, there can be no injmy to the defendant. {Smith V. Curtis, 7 Cal. 587.) One of several defendants who has not been served with a summons or complaint cannot voluntarily appear and move to dismiss the complaint, under section 274 of the Code, where his rights are not ali'ected. He must be contented to remain out of 166 Chap. 3.] PROCEEDINGS TO A DECREE. 79 Wfiere to he entered.'\ If tlie suit is before the chancellor, ihe de- fendant's appearance must be entered with the register or assistant register: if before a vice chancellor, it must be entered with the clerk residing in the circuit where the suit is pending, (k.) (6) Wlien to he entered^ The appearance is to be entered within twenty days after the appearance day mentioned in tlie subpoena. (J) (7) (k) Rule 22. (l) Idem. cnurt until invited to appear there. (^Tracy v. Reynolds, 7 How. Pr. 327.) Fnder section 139 of the Code, one named as a defendant, against whom, personally, a jndgmeut is prayed, has a right to appear and answer before he has been served with a summons. {Siggins v. Freeman, 5J Duer. 650.) And where two defendants are sought to be made jointly liable, as partners, in an action on contract, and the sum- mons and complaint are served on only one of them, the other may voluntarily appear, under section 139, and put in an answer, and the plaintiff is bound to receive it, although the defence set up is infancy. ( Wellington v. Claason, 18 How. Pr. 10 ; S. C. 9 Ab. 175.) A defendant may appear after default and before judgment in all cases where an assessment of damages is necessary. (Abbott v. Smith, 8 How. Pr. 463 ; Baxter v. Arnold, 9 id. 445. See 2 Daly, 53; 11 How. Pr. 481, 483.) In Tracy v. Reynolds, (7 How. Pr. 328,) Justice Harris says a party uninvited cannot intrude himself upon the eomt and the plaintift' unless he has some right to protect which renders an appearance necessary. See, also, The Waterbury Manuf. Co. v. Krame, (1 HOt. 560 ; S. 0. 9 Abb. 175, note,) where the plaintifi' was allowed to discontinue, without costs', against a defendant who had not been served with process, and who, by appear- ing and answering, had " intruded himself into a litigation, the result of which could in no way affect him or his interests." (6) Notice of appearance should be filed in the county specified in the complaint as the place of trial, or in the county to which the place of trial has been changed. (Rule 3, Sup. Court.) Service of notice of appearance must antedate, or become contemporaneous with, the service of all other notices and papers. (Steinback v. Leese, 27 Gal. 297.) (7) Appearance, "When to be Entered. A defendant may appear at any time before judgment is actually entered. (.46- hott V. Smith, 8 How. Pr. 463; Baxter v. Arnold, 9 id. 447.) The plaintiff, on receiving a notice of appearance or retainer, may, at any time thereafter, on flUng such notice, with proof of service thereof, have the appearance of the defendant entered as of the time when such notice was served. (Rule 14.) In order to obtain a copy of the complaint where none has been served, the attor- ney of the defendant must, within twenty days after personal service of the sum- mons, or twenty days after the expiration of the time specified in the order of publication, from the first publication of the notice, serve a notice that he appears for the defendant, and demand that a copy of the complaint be served upon him. (Code, § 130.) In the United States courts the appearance day of the defendant is the rule day to which the subptBua is made returnable, provided he has been served with the pro- cess twenty days before that day ; otherwise his appearance day shall be the next rale day succeeding the rule day when the process is returnable. (17th Equity Rule.) By the 16th Rule, " upon the return of the subpoena as served and executeil up(m any defendant, the clerk shall enter the suit upon ms docket as_ pending in the court, aud shall state the time of the, entry." The appearance of the defendant^ either personally or by his solicitor, shall be entered in the order book on the day thereof by the clerk. (Rule 17.) In Maine, each defendant must enter his appearance on the docket on the return day ; and upon proof of neglect, when there has been personal notice, a default may bo entered, the bill be taken as confessed, and a decree be entered accordingly. (Rule 4 of Chancery Practice.) la Massachiisetts, " the day of appearance shall be the rule day next after the subpoena is returned, when personal service shall be made on the defendant, or he shall have had perscmal notice of the suit ; or next after the second return of a copy left, when the defendant shall not be found ; or next after the expu'ation of au order 167 79 PROCEEDINGS TO A DECREE. [Book I. How to be entered.] The appearance is usually entered in this man- ner. The solicitor for the defendant sends a written request to the register or clerk in this form : [Title of the cause.] Sir, Please to enter my appearance for the de- fendant in the above cause. Dated , 1843. Yours, &c. E. F., Sol'r for deft. To J. M. D. Esq., Eegister, (or clerk.) Upon receiving which request, the register or clerk will enter the appearance of the defendant by his solicitor. [Notice of appearance.] The defendant's solicitor should then give notice of his appearance, to the complainant's solicitor, as follows : [Title of cause.] Sir, — You will please take notice that my appear- ance for the defendant in this cause has been duly entered with J [ *80 J *M. D. Esq., the register (or clerk) of this court, at his office in Albany. Dated , 1843. Yours, &e. E. P., Sol'r for deft. To G. H. Esq., Sol'r for compt. A defendant may appear in person, if he chooses to do so ; but in case he employs a solicitor, he cannot appear on the record in person, (m) (8) (m.) 2 R. S. 276, i 11. for appearance, where tbe defendant shall reside out of the commomvealth. (Rule 9, Practice in Chancery.) By the practice in California, at any time after the commencement of an action, any one, or all, of the defendants may appear by attorney, -vrlthout service of sum- » mons, and the defendant so appearing must plead to the action within the same time thereafter as he would had the summons been served upon him. (.3 Estee Pr. 43; Suydam v. Pitcher, 4 Cal. 280 ; Holmes v. Rogers, 13 id. 191 ; Turner v. Carruthers, 17 id. 431.) A party has ten days to answer after service of the summons, if it be served in the county ; twenty days if out of the county but within the judicial dis- trict ; and forty days in all other cases. (Cal. Pr. Act, § 25 ; Grewell v. Eenderson, h Cal. 465.) A non-resident of the State comes under the latter clause. (lb.) "Wliere a summons is made returnable in thirty instead of forty days, and does not state that judgment by default will be taken unless the defendant appears and answers, nor specify the amount for which judgment will be taken, the summons will not support a judgment by default. {People v. Woodlief, 2 Cal. 241. "Where the first clause of a summons required the defendant to appear and answer within forty days, and the concluding clause notified him that if he did not answer in twenty days a default would be taken, it was held that it was too contradictory or uncertain to requke an appearance and answer within the shorter period. (Kidd v. Four Twenty, 3 Nev. 3al.) (8) A pai-ty to an action may appear in his own person or by attorney ; but he can- not do both. If he appeal's by attorney, he canm)t as.suuie the control of the casj. 168 Chap. 3.] PROCBEDTNGS TO A DECREE. gQ SECTIOlSr III COMPDLSOET APPEAKANCE. A compulsory appearance is where the defendant is either taken and brought in upon an attachriient, or other process of contempt, and is thereby compelled to enter an appearance for himself; or where> upon (3 Estee Pr. 43; Board of Commissioners v. Younger, 29 Cal. 147.) A defendant, having appeared by attorney, cannot appear in person while the retainer continues. {ffalsey Y. Carier. 6 Rob. 535.) And a notice signed by a " defendant in person." while he has an attorney, may be disregarded. (Ibid.) While an attorney oC record remains such, his right to manage and control the action can not be questioned by the opposite party. {Board of (Jom'rs v. Younger, supra^ The corporation of S"ew York may, ■with the consent of the corporation connsel, appear by other attorney and counsel. (Mayoi; 2E. 8. 188, S128, (orig S122.) fffj Laws of 1842, p. 363, S 1. (3) Service of Sttmmons bt Publication. The Code (J 13.'i) provides that where the person on whom the service of the sum- mons is to be made cannot after due diligence be found within the State, and that appears by affidavit to the satisfaction of the court or a judge thereof or of the county judge of the county where the trial is to be had, and it in like manner appears that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a proper party to an action relating to real property in this State, such court or judge may grant an order that the service be made by the publication of a summons in either of the following cases : 1. "Where the defendant is a foreign corporation, has property within the State, oi the cause of action arose therein ; 2. "Where the defendant being a resident of this State has departed therefrom with intent to defraud his creditors or to avoid the service of a summons, or keeps himself concealed therein with the like intent; 3. "WTiere he.is not a resident of this State but has property therein and the court has jurisdiction of the subject of the action ; 4. Where the subject oi' the action is real or personal property in this State and the defendant has or claims a lien or interest actual or contingent therein; 5. Where the action is for divorce in the cases prescribed by law. The section also directs as to the manner in which the publication shall be made, and the time, and directs that in case of publication the court or judge shall also direct a copy of the summons and complaint to be forthwith deposited in the post office directed to the person to be sei-ved, at his place of residence, unless it appears that such residence is neither known to the plaintiff, nor can with reasonable dili- gence be ascertained by him. , When publication is ordered, personal service of a copy of the summons and com- plaint out of the State is equivalent to publication and deposit in the post office. (Ibid.) In all cases where publication is made the complaint must be first filed and the summons, as published, must state the time and place of snch filing. (Ibid.) 6. In actions for the foreclosure of mortgages on real estate, if any party or parties having any interest in or lien upon such mortgaged premises are uiiknown to the plaintiff, and the residence of such party or parties cannot with reasonable dUigenee be ascertained by him, and such fact shall be made to appear by affidavit to the court or to a justice thei-eof or to the county judge of the county where the trial is to be had, such court, justice or county judge may grant an order that the summons be served on saoh unknown party or parties by publishing the same for six weeks suc- cessively in the State paper and in a newspaper printed in the county where the premises are situated, which publicaticm shall be equivalent to a personal service on such unknown party or parties. (Ibid.) It is settled by repeated decisions that the requirements of section ]35 must be strictly pursued and fully complied with, in order to confer jurisdiction. (Cook v. Farren, 34 Barb. 95 ; S. C. 11 Ab. 40, and 12 id. 359, suh. nam. Cook v. Farmer ; Hal- lett V. Mighters, 13 How. Pr. 43 ; TiUis v. Belyea, 16 id. 371; Brisbane v. Peabody, 3 id. 109; Kendall v. Washburn, 14 id. 380; Wortman v. Wortman, 17 Ah. Bfi.) An order for publication, and all proceedings founded thereon, are absolute nulli- ties unless the case is in fact witliiu this section. It is not sufficient that the affida^ vit on which the order is made states the case to be within, nor that the judge making the order is satisfied the case is within, this section. (Fiske v. Anderson, 33 Barb. 71 ; 12 Ab. 8; Peck v. Cook, 41 Barb. ,549.) The affidavit must show that the case is within the law, (Peck v. Cook, supra,) and the necessary facts cannot be 184 Chap. 5.] FROCEETIINOS TO A DECREE. 09 If the defendant resides out of the state, there must be proof, by shown in any other manner than by affidavit. The return of the sheriflf upon the summons forms no part of snch proof ( Waffle v. Gohle, 53 Barb. .117.) jSTur is the official certificate of a sheriff of another State evidence here of the service of papers. His affidavit should be presented. {Morrell v. Kimball, 4 Ab. ,S52.) Section 1.S6 of the Code, (sub. 3,) directs that in case of publication the affidavit of the printer, or his foremau or principal clerk, showing the same, shall be produced, aud au affidavit of the deposit ot a copy of the summons in the postoffioe, as required by law, if the same shall have been deposited, or the written admission of the defendant. Although this section requires that the affidavit of publication be made by the printer, his foreman or principal clerk, yet it seems that it will be sufficient if made by the publisher of the newspaper. {Bunco v. Heed, 16 Barb. 347 ; explained in Sow- ard V. Satch, 29 id. 297, 301.) An admission of service, purporting to be signed by some of the defendants, with- out some evidence of their signatures being genuine, or that they were written to the admission with their assent, is defective. The court takes judicial notice of the signatures of its officers, but is not presumed to know the signature of a party defendant who has not appeared in the action. ( Litchfield v. Burwell, 5 How. Pr. 342; S. C. 1 Code Rep., N". S. 42; 9 Leg. Obs. 182; Matter of aihson, 5 English, (Ark.) 572 ; Welch v. Walker, 4 Porter, (Ala.) 120 ; Norwood v. Kiddle, 9 id. 42,5.) If the af^davit is insufficient it will not be aided by the personal service of the summons out of the State. (Peck v. Cook, supra.) Nor can jurisdiction bo con- ferred nunc pro tunc by amendment. (Wortman v. Wortman, 17 Ab. 67 ; Hallett v. Jiighters, 13 How. Pr. 43.) If there is a total absence of proof of the facts neces- sary to confer jurisdiction, the order for publication, and all proceedings founded upon it. are absolutely void. (Tomsley v. McDoncdd, 32 Barb. 604 ; Wells v. Thorn- ton, 45 id. 390.) But a mistake, or error of judgment or opinion, in passing upon the force and weight of affidavits presented on au application for an order of publica- tion, will not render the order or process void, but simply iiTCgnlar and erroneous. Such order may be reviewed and rectified on appeal, or on moticm to set aside the order and proceedings, but cannot be questioned collaterally. ( Welles v. Thornton, 45 Bai-b. 390 ; Boche v. Ward, 7 How. Pr. 416.) On application for service of summons by publication, where it appeared that although the defendant could be found and seen, yet with due diligence access to him could not be obtained so as to effect a service of the summons upon him, it was held that as it ccmld not be said that the defendant could not be found, and kept con- cealed, (fee, the case did not come within the provisions of section 135 of the Code. {Van Rensselaer V. Dunbar, 4 How. Pr. 151.) Such a case, however, is now pro- vided for by the Act of 1853, relative to substituted service. (See Ante, chap, 2, note 15.) An affidavit for an order of publication must show the residence of the defend- ant, or that it is neither known to the plaintiff, nor can, with reasonable diligence, be ascertained by him. {Si/att y. Wagenright, 18 How. Pr. 248; Cook v. Farren, 34 Barb. 95; S. C. 21 How. Pr. 286; 12 Ab. 359 ; 11 id. 40.) In an action for the fore- closure of a mortgage, the non-residence of the defendant is not necessary to be shown. It is sufficient to establish the fact satisfactorily that he could not, after due diligence, be found within this State, so as to enable the plaintiff to effect the service of the summons upon him. There is no good reason why this may not be shown by an affidavit properly made, and forming a part of the records of the court, although made in another acti . Becker, S Paige, 60G. CkJ Kiile 25. (I) Laws of 1842, p. 3G3, j 2. 19U Chap. 5.] PROCEEDTXGS TO A DECREE. 94 circuit," as the case may be. "A. B. v. C. D. and others. Bill for foreclosure of mortgage," or, " Bill for •partition of lands, as the case may be. " E. F. of , complainanfs solicitor. 0. H., one of the defendant's in this cause, whose place of residence is in ," or^ '• whose place of residence is unknoion " — " is required to appear in this cause by the day of n/ixt, or the bill filed therein ivill be taken as confessed by him." But such publication will not be necessary, provided a copy of such order shall have been personally served on the defendant at least twenty days before the time prescribed for his appearance, (m) The above provisions of the act apply to suits instituted for the par- tition of lands as well as to all other suits instituted in this court, and to unknown owners in partition suits, (w) The chancellor may, if necessary, by further order, extend the time for the appearance of the defendant, and may direct the publication of such further order for so long a time as he shall see fit to fix. (o) Order to take bill as confessed.^ If the defendant fails to appear within the time limited in the order, on due proof of the publication for the time directed, or of the personal service of the order, the bill may be taken as confessed; and the court will direct a reference to a master to take proof of the facts and circumstances stated in the bill, (p) The publication of the order must be proved by affidavits of the printers of *the papers or their foreman or principal clerk.(5') If the order [ *95 J is served personally upon the defendant, the affidavit of the person serving it will be necessary. An affidavit that the defendant has not appeared must also be filed.(r) An order of reference as to the rights of an absent defendant may be entered of course under the 35th rule, at any time after the bill has been taken as confessed against the absentees, although there are other defendants who appear and contest the suit.(s) The master to whom the reference is made is to take such proofs as may be offered. The bill is not to be considered as evidence of any fact stated in it ; but when so directed by the chancellor, the master may receive the testimony of the complainant as evidence.(#) This order directing the master to receive the testimony of the com- plainant as evidence, can only be obtained by a special application to the court.(M) Whenever the bill is for the payment or satisfaction of any sum of WT^?-i'?:J^- ■ <-,„.>''"''"•"'•**■ roJ2K. S.J88, S 13I,(orig. 5 125) Cp^M. 5M2, :oi-is. S 128.) r?; 2 K, S. 403, 5 CS. (oriff. S 56.) rrj Rule 25. Chri.aty v. Christy. 6 Paige. 170. fsj Cornins v. B.ixtei-, id. 178. rtj 1 R. S. ISO, S 133, lorig. § 127.) ' (u) Rule 25. 191 95 FROCEEmNGS TO A DECREE. [Book I. money, the court shall direct that the complainant be examined by the master as to any payments that may have been made to him or to any person for his use, on account of the demand mentioned in the bill, and which ought to be credited on such demand.(w) The direction to examine the complainant under this section is i;su- ally made a part of the order of reference, and under the 35th rule is an order of course. The master must report the proofs and examinations had before him ; and on the coming in of his report, the court will make such order thereupon as shall be just.(?w) Infant defendants.'] "Where there is an infant absentee, the course under the statute must be pursued ; and on the expiration of the time fixed for his appearance, if no one applies in his behalf, the complain- ant may more, as in ordinary cases, for a guardian ad litem.{x) Proceedings may also be had by publication under the statute where the infant is concealed.(y) Lunatic absentee.] And the court has directed a similar course to be pursued where the defendant was a resident of another state and a lunatic.(2) [ *96 ] *Foreign corporation.] In a suit against a foreign corpora- tion an affidavit should be made of the place of its institution, and that no officer has been found within this state upon whom the sub- pffina could be served. Upon this an application should be made to this court, by petition or motion, for an order to advertise that the cor- poration appear pursuant to the statute. SECTION" III. FOE WANT OF AN" ANSWEB. Where defendant appears voluntarily.] , If the complainant has re- ceived notice of the defendant's appearance, he may have an order of coarse that he put in his answer in forty days after service of a copy of the bill and notice of the order, or that the bill be taken as con- fessed. If the defendant does not file his answer and serve a copy thereof within the forty days, or such further time as may be allowed him for the purpose, the complainant, on filing an affidavit showing ':'''', ;„?■ ?i ^^- ' .^^*' '"V'S- 5 I2S.) (w) M. II), ! 13.x (nrisr. { 12!). i (X) 1 he Bank ol Ontario v. Strong, 2 Pnlcro. 301. (y) Mnrtimer v. Oonsev, 1 Hoff. Ch Pr 194. (z) Otis V. Wells, id. ib. 192 Chap. 5.] PROCEEDINGS TO A DECREE. 96 the defendant's default, may have an order to take the bill as con- fessed.(a) (4) Ca) Rule 24. (4) Judgment on Failure to Answer. It has been already seen that the plaintiff is required to insert in the summons a notice (1) in an action arising on contract for the recovery of money only, that he will take judgment for a sum specified therein if the defendant fails to answer the complaint in twenty days after the service of the summons ; (2) in other actions that if the defendant shall fail to answer the complaint within twenty days after such ser- vice, the plaintiff will apply to the court for the relief demanded in the complaint. (Code, J 129.) If the defendant fails to answer within the prescribed time after service of the sum- mons and complaint or the summons alone, on all the defendants, is complete, the plaintiff is entitled to judgment on application to the court. (Van Sant. Eq. Pr. 12,').) Whenever the summons contains a notice under the ^d subdivision of section 1'29 of the Code, an application to the court for judgment is necessary if the defendant fails to answer, and a judgment entered without such application will be irregular. (McNeff V. Short, 14 How. Pr. 463.) Rnle 33 of the Supreme Court provides that when a plaintiff is entitled to judgment upon the failure of the defendant to answer the complaint, and the relief demanded requires application to be made to the court, such application may be made at any special term in the district embracing the county in which the action is triable, or in an adjoining county. Such application may also be made at a circuit court in the county in which the action is triable. (See also Bi/an v. McCannell, 1 Sandf. 70U; S. C. 1 Code Rep. 93.) The motion will not be entertained at a general term. (lb.) Ifor at Chambers. (Ayinar v. Chace, 12 Barb. 301. See Rules 6 and 8 Superior Court.) An application for judgment on failure to answer is a motion as well as an application for jadgment under section 247 of the Code, which has been held to be a motion. (Yan Sant. Bq. Pr. 126; Roberts v. Clarlc, 10 How. Pr. 451.) In every description of equitable actions the application for judgment may be made in the manner above mentioned, even in actions which are properly triable in another county. Thus, in a foreclosure suit judgment may be applied for and rendered in a county other than that in which the mortgaged premises are situated. {La Farge V. Van Wagoner, 14 How. Pr. 54.) "Where the defendant has not given notice of appearance, the application for relief is ex parte. The mode of application in equitable actions is thus pointed out by the Code. After the expiration of the time for answering (twenty days after the service of the complaint — Code, § 143,) the plaintiff', upon proof of personal service of the sum- mons and complaint on one or more of the defendants, and that no answer has been received, may apply to the court for the relief demanded in the complaint. If the taking of an account, or the proof of any fact, be necessary to enable the court to give judgment or to carry the judgment into effect, the court may take the account or hear the proof, or may, in its discretion, order a reference for that purpose. (Code, § 246.) If the defendant gives notice of appearance in the action before the expira.- tion of the time for answering, he is entitled to eight days' notice of the time and place of application to the court for the relief demanded by the complaint. (lb.) It is the intention of the Code that the plaintiff shall show to the court that no answer has been served upon him at the time he makes his application. Heuce^ an affidavit sworn more than five years before that time will not be received. (Brien V. Carey, 2 Ab. 416.) An affidavit is not indispensable. Parol proof will be reoeiTed'. {philips V. PresGOtt, 9 How. Pr. 430.) "When no notice of appearance has been given, the plaintiff, on applying for j'udg- ment, is not required to show that fact, by affidavit or otherwise. The court will nut in "-eneral inquire into it; but the plaintiff' takes his jadgment at his peril, and should it turn out that notice of appearance has been served, and no noticfr of the application for judgment given, such judgment is irregular, and will be set aside on motion. (Tan Sant. Bq. Pr. 126.) The provision of section 246, requiring proof that no answer has been received, includes a denturrer, and is usually and properly so stated in the afBdavit ; for if a defendant has interposed a demurrer a judgment for failure to answer cannot regu- larly be entered against him. (Broadhead v. Broadhead, 4 How. Pr. 408; S. C. 3 Code Rep. 8.) Bat if there is a direction for jadgment under seoCion 247 of tbe Vol. 1—13 - I'Jb. gg PROCEEDINGS TO A DECREE. [Book I. In a suit against husband and wife, if an order to answer separately Code, or the demurrer has been oveiTuled, in either case there is a failure to answer, and the same proceedings may be taken as where neither demurrer nor answer ha« been put in. (^King v. Stalfonl, 5 How. Pr. 30 ; Aymar y. Chase, 1 Code Rep., K. S. 141 ; Saltus v. Ki2>p, 5 l)aer. 646 ; S. C. 'i Ab. 382 ; 12 How. Pr. 342.) . '^here an order ismade to strike out au answer as sham, the case stands as if no answer had beeu put in ; and if the time to answer has expired, the plaintiff can enter judgment as in case of default. An order ibr judgment is neither necessary nor proper. If one is entered, the defendant should appeal from the order and not from the jud" ment. (Potter v. Carreras, 4 Rob. 629 ; Watson v. Srigham, 3 How. Pr. 290 ; S. C. 1 Code Rep. 66.) "Where the defendants are sued on a joint liability, and a part of them answer and a part make default, and the plaintiff at the trial has a verdict, he may take judgment against all the defendants served with the summons. N"o affida- vit that no answer has been received is necessary. And it seems that if it were, the plaintiff might be permitted to supply the defect. {Gatlin v. Billings, 13 How. Pr. 511 ; S. C. 4 Ab. 24S. See, also, Sluyter v. Smith, 2 Bosw. 673 ; Ford v. David, 1 id. 570 ; Jones v. United States Slate Co. 16 How. Pr. 129.) The proof above mentioned is all that is usually required on an application for judgment for want of an answer, except in special cases regulated either by statute or the rules of the court, (Van Sant. Bq. Pr. 127,) as, in a foreclosure suit, where the plaintiff must show that notice of Us pendens has been filed, (Code, § 132 ; Sup. Court Rule, 72) ; or that any of the defendants who have not appeared are absentees (Rule 72) ; or, in partition suits, that there are infants, absentees, or unknown own- ers (Rule 79) ; or in an action for divtu'ce for adultery; or to annul a marriage on the groLind of non-age or want of consent, that thti parties have not cohabited, &o., as prescribed by the rules of the court. (Rules 87, 88.) The plaiutifi''s affidavit should show service im all the defendants ; for the court will not ordinarily render judgment against a portion only of the defendants where there are others who are necessary parties. (Van Sant. Bq." Pr. 118, 127.) Tet if the summons and complaint name as defendants persons who are not necessary par- ties, or whose interest has terminated, the plaintiff may, on an affidavit showing their want of interest origiually, or tliat their interest has ceased, obtain au order to strike them out, and take judgment against the residue of the defendants. (Id. 127.) The failure of the defendant to appear, after personal service of the summons, where there are no infant defendants, is usually regarded by the court as an admission of the truth of the complaint, even though it be unverified ; and as excusing any fur- ther proof of the facts stated therein. Though, where the summons, only, has been served, the court may, upon its own motion, require further proof of the truth of the complaint, it seems. (Van Sant Bq. Pr. 128.) Upon an equitable cause of action admitted by the defendant's failure to answer, the court directs such a judgment as it cimsiders the nature of the case, as set forth in the complaint, requires. But the relict" granted to the plaintiff' cannot exceed that which he has set fin'th in his complaint. (Code, ^ 275; Hurdv. Leauentuorth, 1 Code Rep., K S. 27d.) ThU seotion relieves a plaintiff from any technical objection that he has not prayed for the precise relief to which he may seem entitled (ra the trial ; but the relief to be granted must still be consistent with the case made by the com- plaint. (Bradley v. Aldrich, 40 H". T. 504.) It is not sufficient that the plaintiff", in his complaint, states facts sufficient to entitle him to the relief He must ask for it. (Simonson v. Blake, 20 How. Pr. 484 ; S. C. 12 Ab. 331.) In an action against seve- ral defendants, for partition, none of the defendants answered, and the action having been referred, judgment was rendered, on the report of a referee for partition, and against one of the defendants for rent. Held, that as the complaint did not ask for an accounting as to rents, the plaintiff" could not have such additional relief in that action. (BalUoinker v. Bi/ker, 12 Ab. 311.) "Where the prayer for relief was that certain notes amounting to $5,000 might be ordered to be delivered up, and that the plaintiff' might recover $2,000, with interest thereon, it was held that a judgment for $7,000 and interest, (the notes not being on interest.) exceeded the relief demanded iu the complaint, and must be reversed. {Hard v. Leavenworth, 1 Code Rep., N. S. 278.) So, where the prayer in the complaint was f(n- the usual judgment in a fore- closure suit, and for general relief, there being no specific prayer for judgment for the deficiency, if there should be any, it was held that the defendant could not lie adjudged to pay what the mortgaged premises failed to satisfy of the mortgagn. (Simonson v. Blake. 20 How. Pr. 484 ; S. C. 12 Ab. 331.) The plain.tifl' may obtain much less relief than .he has demanded in his complaint: for he is by no means entitled, as a matter of course, to take judgment even in stri?,t 194 Chap. 5.] PROCKBDIXGS TO A DECIiEE. 9() has not been obtained, the husband must procure the joint answer of Cduformity to the prayer for relief in tiis oomplaiut. (Vau Saut. Bq. Pr. 128.) In Laiidoii v. Ready, (1 Sim. and Stn. 44,) wtiere it appcjareJ. oa tlie face of the bill that tlie plaintiff had no equity, the bill was dismissed. It is not a matter of course to award costs, although the complaint demands it ; costs, in equity eases, being in the discretion of the ouurt. (Code, ^ 303.) Where it is not apparent on the face of the complaint that the plaintiff would be entitled to costs, the ccmrt has power to order a reference. {Elmore y. Thomas, 7 Ab. 70.) That portion of section 246 of the Code which relates to the taking of an account, or direating a reference, applies to many oases in which the complaint itself even though admitted, will not enable the court to render final judgment; as, if it seeks to wind up the affairs of a partnership ; or be filed by a trustee, or receiver, for the settlement of his accounts ; or the action be brought to call an executor, guardian or other trustee to account. In these and similar cases, it ia necessary, if the court declines to take the account, or hear proof of the fact, to apply for an order of refer- ence to take and state such accimut, or take proof of such fact, before final judgment. ( Van Sant. Bq. Pr. 129.) If the defendant has appeared, he must have the usual notice of the time and place of reference. (lb.) Rule 33 of the Supreme Court directs that in references of this kind, the testimony ot the witnesses shall be sigUL'd by them, and the report of the referee shall be filed with the testimony, and note of the day of filing shall be entered by the olerk, in the proper book, under the title of the cause or proceeding, and the said report shall become absolute, unless exceptions thereto are filed and served within eight days after the service of notice of tiling the same. If exceptions are filed and served within that time, they may be brought to a hearing at any special term thereafter, on the notice of any party interested therein. The court, on such report, and upon proof of .service of notice, will grant final judgment, if no exception iias been taken to the report. (Van Sant. Eq. Pr. 130.) Judgment, upon a iailuro to answer, is, in the first instance, to be entered ijpon the direction of a single judge, or report of a referee, subject to review at the general term, on the demand of either party. (Code, 5 278.) There is only one case in which a judge, at chambers, can grant a judgment; and that is under seoti(m 247 of ihe Code, where judgment may be given cm a frivolous demurrer, answer or reply. In all other cases, judgment can be rendered imly by the eoiirt, when sitting as such. (Aijmar V. Chace, 12 Barb. 301; S. C. 1 Code Rep., IST. S. 330.) A final decree, in a court of equity, containing special provisiiins, cannot bo entered, unless it has been brought to the notice of the court, and the sanction of the court obtained. (Bench V- Shaw, 4 Barb. 288.) iSTo order or decree, excepting in a few specified cases pro- vided for by rule, which only relate to the form and manner of proceeding, ami do not affect the merits, can ever be taken by default, or without the actual direction or appi'oval of the court. (Ibid.) Thus, where a final decree, purporting, on its face, to have been made at a general term of the court, was entered in vacation, vipira the report of a referee, in pursuance of a stipulaiiou between the parties, without any direction or consent of the court having been given, such decree, and all subsequent proceedings, were set aside as irregular. (Ibid.) It is not material whether the order of the court is reduced to form, and receives the fiat of the judge, at the time the order is actually made, or at a subsequent period. (Smith V. Coe, 7 Rob. 477.) Rule 72 of the- Supi'cme Court provides that in a foreclosure suit, on a failure to answer, or when the right of the plaintiff' is admitted by the answer, the plainttt' may have an order of reference to compute the amount due ; to inquire and report whether the mortgaged premises can be sold in parcels ; to take proof of the facts stated in the complaint; and to examine the plaintiff' on oath, as to any payments, &c. And after the cause is in readiness for trial, as to all the defendants, the plaintiff may apply, at any special term, f(n- judgment. He must show, by affidavit, or otherwise, whetlier any of the defendants who have not appeared are absentees ; and if so, he iimst produce the report as to the proof of the tacts, &o., stated in the complaint, and ol the examination of the plaintiff', or his agent, as to payments. And he must prove the filing of a notice of Us pendens as required by § 132 of the Code. It has been held regular for a plaintiff' to obtain his order of reference to compute the amount due, and proceed thereon forthwith without any further notice to the opposite parcy, and having obtained a rep(n't, to present it to the court on the same day, and obtain final judgment. (Kelli/ v. Seariiif/. 4 .\b. 3o4.) In actions to obtain a dioorcv (U' sojiardtloii, it' the (let'endant I'ails to answer, or to deny the facts charged in the complaint, the court, on applicati.m for judgment, will I'JO 96 PROCEEDINGS TO A DECREE. [Book I. himself and wife to be put in, or the bill may be taken as confessed against both.(5) (b) Biltun V. Bennett anrl wife, 4 Sim. 17. Leavitt v. Cniger and wife, 1 Paige, 431. order a ret'erenoe to take proof of "all tbe material facts charged in the complaint," (llule 67.) This includes proof of the mamage and residence of the parties, as well as of the adultery charged. (9 Paige, 589 ; 3 Bdw. 377 ; 8 How. Pr. 296.) In a suit to aiuml a marriage, ou the ground that the party was under the age of legal consent, the plaintiff, to obtain an order of reference, must produce an afBdavit, showing that the parties have not freely cohabited for any time as husband and wife, after the plaintiff had attained the age of consent. To annul it, on the ground that his consent was obtained hj force m fraud, the plaintiff' must show, by affidavit, that there has been no voluntary cohabitation between the parties as husband and wife. To annul it, ou the ground that the plaintiff' was a lunatic, an affidavit must be pro- duced, showing that the lunacy still continues; or, the plaintiff must show, by his affidavit, that the parties have not cohabited as husband and wife, after the plaintiff was restored to his reason. (Rule 87.) In partition, or other suits, aff'eeting real estate, if the rights and interests of the several parties, as stated in the complaint, are not denied or controverted, if any of the defendants are infants, or absentees, or unknown, the plaintiff, on an affidavit of the fact, and notice to such of the parties as have appeared, may apply, at a special term, for an order of reference, to take proof of plaintiff's title and interest in the premises, and of the several matters set forth in the complaint, or petition ; and to ascertain and report the rights and interests of the several parties in the premises, and an abstract ot the conveyances, by which the same are held. (Rule 78, Sup. Court.) And where the premises sought to be partitioned are so situated, that a par- tition cannot be made without prejudice, &c. the plaintiff, in the affidavit mentioned in Rule 78, may have a further provision inserted in the order of reference, directing the referee to inquire and report whether the whole premises, or any lot, or separate parcel 'thereof, are so circumstanced that aa actual partition cannot be made, and as to liens and incumbrances, aad the amuuuts thereof, &c. (Rule 79.) Where Service has heen Made hy Publication. The Code (5 24Ct, sub. 3) provides that, in actions where the service of the sum- mous was by publication, the plaintiff', on the defendant's failure to answer, may, in like manner, apply for judgment; and the court must thereupon require proof to be made of the demand meatioued in the complaint ; and if the defendant be not a resi- dent of the State, must requu'e the plaintiff', or his agent, to be examined on oath, respecting any payments that have been made to the plaintiff, or to any oue for his use, on account of such demand; and may recover judgment for the amount which he is entitled to recover. Before rendering judgmeut, the court may, in its discre- tion, require the plaintiff to cause to be filed satisfactory security, to abide the order of the court, touching the restitution of any estate, or effects, which may be directed by such judgmeut, to be transferred or delivered ; or the restitution of' any money that may be collected under, or by virtue of such judgment, in case the defendant, or his representatives, shall apply, and be admitted to defend the action, and shall succeed in such defence. On an applicatiun i'm' judgmeut, under this subdivision, the papers on which the plaintiff' moves, besides the affidavit that no answer or demurrer has been received, and the proof of filing notice oi lis pendens, &c. consist of the order (or certified copy thereof) of publication, the affidarits of the printer, or his foreman, or principal clerk, of the publication of the summons for the requisite time , proof by affidavit, of the fil- ing of the complaint, before publication, and of the service, by mail, of a copy on the defendant, according to the requirements of the order. (Van Saut. Eq. Pr. 131.) Al^o, an affidavit, showing whether the defendant is a non-resident, or not. If he be not, the order of reference need not contain ttie clause that the plaintiff, or his agent, be examined; but may be simply that the referee take proof of the allegations of the complaint, and report to the court. (Id. 13^.) The affidavits must show that the requirements of the Code have been strictly complied with, or the judgment entered thereon will be void. {Kendall v. Washburn, 14 How. Pr. 380; Hallett v. Bighters, 13 id. 43.) "Where judgment was entered against non-resident defendants, by the clerk, upon a service by publication; and it appeared upon the face of the record that the affidavit ot the printer did not show six weeks publication of the summons, uuder, and in pursuance of the judge's order; that it did not contain any proof th.at the summons and complaint were deposited in the post office, directed to the defend- 196 Chap. 5.] PROCEEDINGS TO A DECREE. 96 When a joint answer by husband and wife is put in, it must be ants, at their place of residence, or that such residence 'was unknown, or could not, with reasonable diligence, be ascertained ; and the affidavit presented to the judge for the order of publication, formed no part of the record; it was held, that the record did not show j urisdictiou on its face ; aud that judguieut could not regularly have been entered up, except by the special order of the eourt, and upon due proof of the service of the summons, in conformity with the judge's order. {Hallett v. liighteya, supra. See, also, Flyiia v. Hudson lUoer R. B. Co., 6 Ht)W. Pr. 308; S. C, 10 X. Y. Leg. Obs., lod; Tmyp v. N. Y. ((rie, and notice of re-adjustment given immediately, as in taxing costs in an ordinary litigated suit. (Van Sant. Eq. Pr. 135.) Judgment having been given either on the original application and proof of the demand before the court, or after reference aud report of the referee, such judgment, if obtained in a county other than that in which the roll is to be filed, must be verif ed, either by the al- lowance of the judge or the certificate of the clerk indorsed thereon, " allowed ; to be entered in county." The papers read on the application must also be marked by the clerk and certified to the county in which the judgment is to be en- tered. The papers and judgment are then to be filed in the proper county, aud the judgment entered and the roll made up. (Ibid. Every jndgment^roU should contain the evidence within itself that the court had authority to render judgment, and that a judgment has in fact, been rendered by the court. If it be a judgment upon default, besides the summons and complaint, the roll must contain evidence that the summons was served, and that no answer had been received, thus showing that the court had jurisdiction over the defendant, and that he had waived his right to defend. {Thomas v. Tanner, 14 How. Pr. 426.) Especially where the summons is served by publication, the record must show juris- diction on its face, as that is in the nature of a special proceeding, and nothing can be intended in its favor. {Sallet v. Righters, 13 id. 43.) Hence, if the judgment- roll do not show affirmatively, that publication was made for tbe proper time ; or that a complaint was fii'st filed; or a summons in the form required was published for the requisite time ; or contain proof of service by mail, &o.. jurisdioti(m will not be shown and the judgment is void, i.Ibid,) and so of any other material omission. (Titus V. Relyea. 16 How. Pr. 371; Kendall v. Washburn, 14 id. 3.30; BucUey v. BiwMey, 6 Ah. 307.) , , .. .^ . , , The Code dii-ects that the clerk shall keep among the records of the court a boot for the entry of judgments, to be called the "judgment book," in which the judg- ifient shall be entered. (Code, §) 27'J, 280.) The clerk, on being tendered his fee 9(3 FROCEEDIXGS TO A DECREE. [Boolc I. sworn to by both. If not so swoni to, and no valid defence is set up for eatoriiig judgment, is bound to enter it, although a fee for a previous service ren- dered reinaiiis unpaid. (Purely v. Peters, 15 Ab. 160; S. 0. 23_ How. Pr. 328.) His delay, however, tu enter a final decree in the judgment book will not affect its valid- itj'. ' (SiUler V. Lee, 3 Keyes, 70; S. 0. 23 How. 251 ; Lynch v. Home Ga.t Light Co. Ai Barb. 591.) Where an actual entry of the judgment was delayed over two months, it appearing that the olerk'had filed a request to enter a transcript, it was held that this did not invalidate proceedings on execution, nor an order for the exam- ination of the judgment debtor. {Appleby v. Barry, 2 Rob. 689.) Where a judg- ment, contingent on the performance of some condition, is I'endered, the entry of such judgment will be irregular if made before the expiration of the time allowed for the perfoiTnance of the condition. (Butler x. Niles, 3 Rob. 644.) The clerk may c ; '. R. S. 1"J9, § 30.) And the court was reijuu-ed, by general rules, to prescribe the cases in which such discovery might be corapelleil, and the prooeediugs for that purpose, where the same were uot provided for iu the statute ; and it was .directed that thereiu the court should be governed by the priijei- 210 Chap. 6.] PROCEEDINGS TO A DECREE. ] 01 not, on the motion of the defendant, order a deed mentioned by tlie complainant's bill as being in his possession, to be produced for the pies and practice of the court of chaucery in compelling discovery; except that costs should be in the discretion of the court. (lb. § 31.) The application for such order ■u-as required by section 3-3, to be made by petition; and section 33 provided for the vacating of such order in the eases therein specified. Section 26 provided for the ca^e of a party neglecting or refusing to obey an order for such discovery ; and, among other things, authorized the court to strike out any plea or notice that might be given. Rules 18, 19, iJO, and 2'i, of the supreme court, carry out the above provisions of the statute, by prescribing the cases in which applications for the order may bo made ; the mode of making them; what the order shall specify, and directing that the order for a discovery shall operate as a stay of all other proceedings, until complied with, or vacated. The Code (§ 388) provides that the court before which an action is pending, or a judge or justice thereof, may, in their discretion, and upon due notice, order eitlier party to give to the other, within a specified time, an inspection and copy, or permis- sion to take a copy of any books, papers, and documents, ia his possession, or under his control, containing evidence relating to the merits of the action, or the defence therein. And it directs that if compliaace with the order be refused, the court, on motion, may exclude the paper from being given in evidence, or punish the party refusing, or both. This section of the Code, it has been held, is not a substitute for the provisions of the Revised Statutes, relative to compelling the production and discovery of books and papers above referred to, but is auxiliary thereto. {Gould v. MoCartij, 11 'S. Y. 575; Morrison v. Sturges, 26 How. 177; FoUctt v. Weed, Sid. 303; S. G. 1 Code R. 65 ; Dale v. Fellows, 5 iiow. Pr. 451 ; S. C. 1 Code Rep., IST. S. 146 ; Da,vis v. Dunluim, 13 How. Pr. 425; Pindar v. Seaman, 33 Barb. 140.) The section extends And strong affidavits, showing that a discovery is necessary, wiU be required to entitle a plaiu- tifl' to an order for inspection, even for this purpose. (Keeler v. Dusenbury. 1 Duer. 660 ; S. 0. 11 Leg. Obs. 287.) The court should not compel a. production of books aud papers where the complaint is not filed, and the nature of the relief sought is not shown by affidavit. (Keeler v. Dusenbury, 1 Duer. 660.) The statute does not require either party to disclose evidence which he intends to produce against the adverse party on the trial. (Strong v. Strong, 1 Ab., S. S. 233; S. 0. 3 Rob. 67.5.) An oi'der will be granted in an action against the defendants as factors of the plaiutifl' in selling his goods, where such defendants have not rendered an account, but will not be grauted to enable the plaiutifl' to determine whether an account ren- dered is correct, (liuberry v. Biniis, 5 Bosw. 685.) Inspection may be ordered to lielp the defendaut to facts necessary to enable him to frame an answer which will preserve his rights in the action, but not for the purpose merely of preventing him from answering untruthfully. (Mora v. McCrcdy, 2 Bosw. 669.) And where the defendant is in doubt a.s to the correctness of what pm-ports to be a copy of an instru- ment set out in the complaint, an inspection of the original will be permitted before answering. ( Wesson v. Judd, 1 Ab. 254.) But an applicati(m for such an order to enable the defendant to answer will not be granted where he does not show how oi why an inspection is necessary for that purpose. (Gelston v. Maishall, 6 How. Pr. 398; Stanton v. Delaware Mutual Ins. Co. 2 Sandf 662.) A party in possession of documents to which the other party is equally entitled, will be compelled, as a matter of course, to produce them for the inspection of his adversary. (Kelly v. Eckford, 5 Paige, 548. See, also, Pegram v- Carson, 10 ,4b. 341, n.) As, in the case of partnership books and papers in the hands of one of the partners, (Ibid,) or a letter belonging to one partner and in the possession of the other. (Livermore v. St. ,Tohn, 4 Rob. 12.) The order may also be granted to ena- ble a party to furnish a proper bill of particulars. (Prince v. Currie, 2 How. Pr. 119 ; Brevoort v. Warner, 8 id. 321.) It may also be grauted for the production aud inspection of the books' of a corporation, where the party applying is entitled to use such books as evidence, as their production cannot be compelled by means of a sub- poBua duces tecum. (La Farge v. La Fargc Fire Ins. Co. 14 How. 26; S. C. 6 Duer. 680.) But agents of a corporation, in then- individual capacity, cannot be compelled to discover books of the corporation. (Opdyke N . Marble, 44 Barb. 64; S. C. 18 Ab, 266.) 213 Chap. 6.1 PROCEEDINGS TO A DECREE. ] 01 accouuts before answer. But it seems that after answer, if he swears to his belief that the books are in the possession of the complainant, The court has no power to compel a party to i^ubmit articles which are the subject of the action, but which are neither books, documents, nor evidence, of themselves, to the inspection of third parties, to enable them to qualify themselves to testily as Dxperts. {Anseu v. Ttiska, 1 Rob. 663; S. C. 19 Ab. 3S)1.) The writings sought to be produced must be shown to be indispensably necessarv. (TCborZs V. De Figaniore, 2,5 How. 522; S. C. 16 Ab. 1; 1 Rob. 607, 641; Low v. Grdij- dou, 14 Ab. 443; Pegram v. Carson, 10 id. 340; S. C. 18 How. Pr. 519.) It is not enough for the applicant to state that he thinks them necessary. (WiJkie t. Moore, 17 How. 480;) or that he is so advised by counsel. {Strong v. Strong, 3 Rob. 675; S. C. 1 Ab., jSr. S. 233.) He must set forth the I'aots and eiroumstanoes which show- that they are necessary, and that he is entitled to an inspection of them. {McAl- lister V. Pond. 15 How. Pr. 299 ; Jaelding v. Edmonds, 3 E. D. Smith, 539 ; Speyers V. Torstrltch, 5 Rob. 60S; Margnelle v. Continental Banlc Note Co. 7 id- 77.) And the documents sought to be inspected must be specifically set forth, and dei^cribed with precision sufficient to enable the party, in whose custody they are, to determine with certainty what documents are required. {JacMing v. Edmonds, supra; Low v. Graydoa, 14 Ab. 443; Walker v. Ch-anite Banlc, 10 id. Ill ; S. 0. 44 Barb. 39; Mar- guelle v. Continental Bank Note Co. supra; People v. Triniti/ Church, 6 Ab. 177.) The application for the discovery or inspection of books and papers should be made upon petition. (Dale v. FeUnws,'b How. Pr. 451; S. C. 1 Code Rep., S". S. 146; Fol- lett V. Weed, 1 Code E. 65;) but will not be denied, because it is by motion, instead of petition. {Johnson v. Consolidated Silver Mining Co. 2 Ab., IT. S. 413.) The power to make the order is limited to tbe court, or a justice thereof; whether it be exercised under the Code, or the Revised Statutes. A referee has no power to make such au order. (Frmer v. Phelps, 1 Code Rep., N". S. 44; S. C. 3 Saudf 741. See North V. Piatt. 7 Rob. 707.) As respects the time of making the order for a discovery or inspection, it has been held, that it mar be made before, as well as after, issue joined. (Miller v. Mather, 5 How. Pr. 160; ilfoff(so» v. Sturges, 26 id. 177. See Stanton v. Delaware Mutual Ins. Co. 2 Saudf 6J2; Powers v. Elmendorf, 2 Code R. 44; S. C. 4 How. Pr. 59.) After the complaint is served, the plaintiff cannot have a discovery of books and papers, until the answer has been served. {Thompson v. Erie Railway Co. 9 Ab., N. S. 230.) Discovery and inspection are allowed for the purpose of preparing plead- inss, or, after issue, to prepare for trial. (lb.) When justice requires, a discovery will be ordered, pending a trial before referees. {Mechanics' Bank v. James, 2 Code -R. 46.) And the certificate of a referee, pending a trial before him, that the produc- tion of books and papers is necess.ary, will be presumptively sufficient to warrant the making of the order. {Eraser v. Phelps, 3 Saudf. 741; S. C. 1 Code Rep., N". S. 214.) A motion for discovery of the defeudaut's books, to enable the plaiutitt' to prepare for trial pending au appeal, by the defendant, from au order overruling his demurrer, is premature. {Palon v. Johnson, 18 Ab. 304.) One of the first facts which should appear on suchi an application, is that the appli- cant has not in his possession the same information ; or if he has, that he has not the means of establishing, by other available proof, the contents of the books or papers sought to be inspected. {McAllister v. Pond, 15 How. Pr. 299; S. C. 6 Daer. 702; Jaelding v. Edmonds, 3 E. D. Smith, 539.) The facts need not necessarily be made to appear by the oath of the party himself, but may be shown by the oatb of any other person who has knowledge of the facts. {Ejcehange Bank v. Monteath, 4 How. Pr. 280; S. C. 2 Code Rep. 148; Strong v. Strong, 3 Rob. 675; S. C. 1 Ab., N". S. 233.) But where the deponent is other than the party, the source and grounds of his knowledge and belief must be set forth. Mere absence of the party will not excuse the want of positive affirmation. ( Walker V. Granite Bank, 19 Ab. Ill; S. C. 44 Barb. 39.) "Where the applicant for a.n order shows that the document sought, has been deliv- ered to the adverse party, the latter, in order to defeat the application, must swear po.sitively that it is not in his possession, or under his oontro.l, or must state facts which, together with his denial, on his knowledge, information, or belief, will amount tis commenc d. tliat thj demand in suit was sub-equen;ly assig led to a person residing within the jurisdiction. {Plicenlxy. 'Tuwiiseiid. 1 Sandf. G->4.) It a suiety becom'is inso.veut, auotli.r must be substituied, {Bridges v. Can- fiald, 2 Edw. 208,) and a suiis iiuiod gaardiau of an infant must give new sec uity. iCoUlen V. HanktHn, 3 Edvv. 31 1.) In case of a non-resident phiintitf, the brnd raiiy be execuud by ih • sureties alone, without the p aintiff. {Tallniadge v. Wallis, I How. Pr. 100.) A single responsiule surety is sutfioient, and thj pUintitTs attoiuey may be the surety himself. {Micklethwalie v. lilwdes, 4 S.m If. Ch. 134.) Tlie lion 1 n e 1 not follow the precise woi'ds of the stitute ; and tliough it does not, it will be suffio ent if equally favorable to the defjndaiit. {Smith v. Noroell, 2 Co le K. 14.) An ils^ignee who brings im action to reco\er possession of property which 1ms be,-n taken on an attachment at the suit of a creditor of tlie assignor, wid n it be coin- pelle 1 to file security for cists under § 317 of the Cnde, o i an alleg.uim that the a.-;s g.iuiunti is a fiaud upon creditors, and the as-^ignee is u party to the fraud ; unless there be such evidence of the truth ot the allegation as renders ithighly probable that the allegation is true. {Shepherd v. Bart, 3 Dua-, 645.) Under tiiut section itis en- tirely i.i the discretion of th,; cjurt, in all cises, wlietner security shall be required 01- njt. (lb. ; JJarhjjv. Gondii, 1 Duer. 599 ; S. C. 11 Le.;. Obs. 151.) An execu- tor, udministrator. tru.stee or assign.'e cunnot be comp-U-d t • give security fur costs under ihis section of the Code, merely on the ground thit the es.ate represented iiy hm i.s insolvent. {Darby v. CoiuUt, supra.) An ejc parte order, giviuj; a rec iver leive to commence an aciion. is no bar to a motion to compel him t.i give security for c ists. {Bolles v. Duff, 17 Ab. 448.) An order i-equiring security in such a cas : cannot be appealed from ; but if it be in any way iiregular, that will furnish a ground of objection. (lb.) Tue bond muse, be fi ed with the clerk of the court in the ciunty where the nction is triable, and notice thereof given to the defendant or his aitorney. The defendant may except to the suflScieucy of the sureties witliiii twenty days after such noiice, in the manue,- pre^cnb.d by statute. (Viin Sant. Eq. Pr. 32.) A f.irei.;u g ivernment, suing in a court of the State, may be required to file secu- rity f.ir costs. {Republic of Mexico v. Arrangois, 3 Ab. 470.) The power of staying proceedings until security for costs be filed, is an incidental power, and may be exercised iud 'pendent of the statute. {The People ex rel Fal- ter V. Oneida Coimnon Pleas, 18 Wend. 652.) It is not imperative on the court to make an order compelling a non-r sident plaintiff to file security lor costs. When the application is not made until the action has bjen referred ;i.nd notic d for he.a-- ing, it wi.l be denied as unreasona ily delayed. {Florence v. Ballcleij, 1 Duer. 705.) Security cannot be required of a plai.uilf on th ; ground ihat his person h i.s been exonerated from imprisonment, where the d^scharg! wa; gr..nted lon^- since. To e i- title a defendant to an ord r for security, h ■ shouid show the present in.ibi ity of the plaintiff to p.iy costs. {Gomez v. Garr, 18 Wend. 577.) The statute (^ 1, suo. 3 :.ud S 2 ) applies in term< to cases in which the suit lierein the seeuri y wa< required, was brought for the collection of some debt contracted before the a-si^niuem of the p ai i- tifPs estate Accordingly, where a plaintiff coiiline..c. d an ac iou on the case lor neg igence, and alter issue joined, obtai.ied a di charge as a, baukrujit, it w s he d thai he could not be compelled to fi e security for costs. {Coryell wDacis, 5 Hill, 559.) Jn C'fl.ii/ocHJa, security for casts and chuges which may bi auarded aga.n.t tiu plaintiff, may be required by the defendant: 1. When the p aintiff resid. s out of li.e iS.ate ; 2. Where the plaintiff is a foreign corporation. (Cal. Pr. Act, $ 512.) A ter t.ie .a.ise of thirty days from the .service of no. ice that security is required or if an order lor new or additio.ial security, upon proof thereof, and th it no und rt i- king has been filed, the court or judg; may order the actio i to be dism ssed. (lb d. $ 514.) The sureties in the undertaking for security for costs, niusi each justify in double ,he amnunt specified in the undertaking. (Ibid, j 113.) When security is required, all proceedin;S shall be stayed uniil sjciirity by uuderiak ng is given, m a sum not excel ding $300. (Ibid) Where the defendant served on the plaintiff, a non-resident, n .tiee to give scurily for Costs, the uotiee not being .iccom[jaiiied by an order staying proceedings, and "n ihe n:xt day jnd;mnt was rendered for the defendant, and U e p aint.fl' app aled to the s.ipreme cou.t, it WaS hold, on motion 'ZU "[Q2 FliOCEEDINGS TO A DECREE. [Book 1. appearance has been entered, and that the complainant is a non-resi- dent. He thereupon moves that the complainant file security within a limited time, or that the bill be dismissed with costs ; and that in the meantime proceedings be stayed on the part of the complainant, and that the sureties shall justify if objected to.(r) If the order is granted, aud not complied with within the time lim- ited in it, the bill will be dismissed with costs.(s) But to obtain an order dismissing the bill for want of security, a special application should be made to the court, upon an affidavit of service of a copy of the order, and that no security has been given. Where the defendant is entitled to security for costs at the com- (r) Id. ib. j 3. (s) Camac v. Grant, 1 Sim. 318. Massey v. Gillelaa, 1 Paige, 6H. \ ^ dismiss the ajjpeal, that after judgment it was too late to move to uismiss the !i-.Mon ; that the undertaliing or appeal was sufficient security fi)r costs subsequently i.jtvirred ; and the mutioii was denird. (Comstoek v. Clemens, 19 Cal. 77.) \u Kentuckii, a plaintiff who is a mm-resident of the State, (ir a corporation other tl" ill a bank created by tlie hiws of that S;ate, must, belore commencing an action, til° a bond of sufficient security, to bj approved by the clerk, for co.sts in the coiiit below, or in any app.dlate court. (Civil Code, sec. t)84.) If such bond is not given, til; ;iclion m.iy be dismissed on motion. (Ib. sec. 685.) Aplaintilf becoming a non- resident must give security. (Ib. sec. 688 ) And a guardian, ciimmittee, or next friend, suing for an infant oi person of unment of all costs wh.ch may bo adjudged against the plain iff. in the court tie ow, or in any uppellae court, and fir the costs of the plainiitf's wit- nesses (Civ. Code, sec. 553 ; .Sen y's Code, p. 412 ) The action may be dismissed un ess sefiurity is given ; and if the plaintiff becomes a non-resident after the com- mencement of the action, he is bonn 1 to give seeuritv. (Ibid. sees. 514, 515.) In Minnesota, when a suit sh.iU be conim need in any court, 1. For or in the name of the trustees of any d. b'or ; 2. For, or in the name of any person, bing in.-ol- vent, who sUmU have been disclia'g'd from h,s dents pursuant to law, brought for ihe CO lection of any debt contracted b dore tne as,-i rnment of his esiate ; or, 3. For, or in the name of any person committed in execution fo.' a crime ; or, 4. In the name oi' any iiiiant. whose next friend li iS not given .-eeurity for costs ; or, 5. For a plain- tiff not lesid.ng within the jurisdiction of sncA court, or for several plaintiffs, who are all non-residents ; the defe.idant miy require the plantiff to file security for costs. (Public St.it. 18.59, p. 580, sjc. 29 ) If after the Commencement of a suit, all the plaintiffs sh ill become insolve.it or non-resi lents, and be discharged as afore- said, ■ imprisoned in the peniten.iarv, the def ndant lUiy also require such s.curity to b ■ fi ed. (Id. |i. 581, sec. 30.) Such sec iri y iiinsi be a b md in the penalty of at least $100, with on' or more suffi ient surut es to the defendant, conditioned to pay all the costs that m y be awarded to the defei.dait. (Id sec. 32.) The bond i. to be filed with the cLrk o the Court ; the sureties may b' e.xcep ed to ; and may justify (Id. si cs. 83, 31, Zi.) The plain iff's attorney is liable for custs to the aniou.,t of $100 until securitybe given. (Id. s.cs. 3j, 37.) The Code of A'ansn* CO. itains similar provisions (Code, sees. 555 to 559.) See, also, Revised Statutes of Wisaoiisin, (18i8,) p, 780, y§ tf5 to 93 ; K vised Satutes of Indiana, vol.2, ji. 127, see. 402 ; id. 2S4, s c. 159 ; Stmutes ot: Illinois, (1858,) p. '^14 ; Compi ed Lawa of Allcltkjan, (1857,) vol. 2, p. 1137.) 218 Chap. 6.] PROGEEDTNGSTO A DECREE. 102 juencement of the suit, the complainant's solicitor is liable for the costs to an amount not exceeding $100, unless security is filed as pro- vided by the statute ; whether such security has been required by the defendant or not.((!) But unless all the complainants are non-residents, security for costs cannot be required.(2«) In case some of the complainants, therefore, are residents of the state, the solicitor is not liable. *;N"otwithstanding the liability of the solicitor for costs to [ *103 ] the amount of $100, the defendant may apply for other security in a larger sum. {v) (6) The solicitor may relieve himself from his liability for costs, by filing security, and the sureties therein justifying, if excepted to, with- out being requii-ed to do so by the defendant, and by giving notice thereof to the defendant, {iv) By the English practice, if the fact of non-residence appears on the bill, or is known to the defendant, he must apply for security before answer, or time given to answer, and before a demurrer or plea, {x) But oar statute is general, authorizing the defendant to require security in the cases specified, without mentioning any time when the application is to be made. It has therefore been decided by the vice-chancellor of the first circuit, that the defendant may require security for costs, at any stage of the suit, from a non-resident complainant who resides out of the jurisdiction at the commencement of the suit, and continues so.(y) As to the kind of non-residence which will entitle the defendant to require security for costs, it is settled that the complainant must be an actual resident abroad. The mere fact that he has gone abroad is not sufficient. The intention to reside abroad for the present, and removal (t) 2R. S. 620, J 7. (u) Id. ib. } 1. See also Walker v. Easterby, 6 Ves. 612. Wintbrop v. Ray, Diok. 2S2. (V) Baldwin v. Williamson, Hopkins, 117. (w) 2 R. S. 2.'il, 5 8. (X) MiKliorucei v. Mijrlionicoi. Dick. 147. S. C. 3 Ves. sen. 24. Gorden v. Kunket, 1 Ball & Beat. oii7, n. Prior v. Wiiite, 2 Moll. .S61. (y) Burgess v. Gregory. 1 Edw. Rep. 449. (6.) But where security for costs has been filed pursuant to an order, and twenty d lys h ive elapsed without objection to the amount of the bond, the court will not entertain an application for an increase of the amount of the security. {Caatellaiws V. J(:iies, 4 Sandf. 679 ) In California, a new or additional nndevtalving ma\' be ordered upon proof that the original undertaking is iusuflSciint ; and proceedings are stayed until such nsw security be given. (Prac. Act. J 512.) In Keittucki/, ad litional security may be required at any time b'fore judgm'nt, upoa notice, if the court is satisfied Ihat th ■ surety bus removed from <\\i' S ale. or ii not re.sponsible ; aid it may order the action to be dismissed unless sucli addi- tio lal security be given. (C'vil Code. sec. 688.) The same rule prevails in Uhiu. (Civil Code, sec. 546 ;) in Kansas, (Code. sec. 558 ;) in Wisconsin, (Rev. Stat, of 1»58, p. 781, 5 91 ,-) and in Micliigau, (Comp. Laws of 1857, vol. 2. p. 1837.) 219 103 PROCEEDI^'GS TO A DECREE. [Book I. with his family, if the complainant has one, is requisite, (z) But if the complainant has actually removed from the State with his family, and changed his residence, the defendant is entitled to security for costs, although there is a probability that the complainant may return at some future day. (a) Security will not be I'equired of a complainant about to go abroad. (J) The second section of the statute, which allows the defendant to require security for costs where the complainant becomes a nou-resident after the commencement of the suit, will afford an ample remedy, in such cases, (c) Nor can security be required of an officer in the army or navy, or a consul. (JT) But where it appears upon the bill that the complainant is an officer of the army out of the jurisdiction, the defendant will be entitled to the usual security for costs, unless it be distinctly stated that the [ *104] *complainaut is on actual service. It is not sufficient to state that the complainant is an officer of a particular regiment and resid- ing at a particular place out of the jurisdiction, although the regiment may, in fact, be stationed at that place, (e) Upon a bill filed by the wife against her husband for a separation or limited divorce, if the next friend of the wife, who prosecutes the suit, is irresponsible or insolvent, all proceedings may be stayed until security for costs is given, or a responsible person is substituted in his place ; and if such security is not given, or substitution made within a rea- sonable time, the bill will be dismissed. (/) The statute directs that the security for costs shall be in the form of a bond, with one or more sufficient sureties, in a penalty of at least $250, to the defendant, conditioned to pay, on demand, all costs that may be awarded to the defendant in the suit, {g) Under this section the court has the power to require security in a larger sum than $350, if it thinks proper to do so. But unless special circumstances are shown, this sum is usually fixed upon as the amount of the penalty of the bond. The court may either fix the amount itself, or refer it to a master. (7;.) In one case (%) the amount of the security was fixed by the court at $250, the bond to be approved by the register. The bond must be filed with the register, assistant register or clerk, and notice thereof given to the defendant or his solicitor. And within (z) Green v. Charnock, 3 Bro. Ch. R, 371. White v. Greathead, 15 Ves. 2. Hoby v. Hitch- cocik, 5 id. 659. (a) Gilbert v. Gilbert. 2 Paige, 6(«. (h) Willis v. Garbntt, 1 Young & Jer. 5U. (c) See 2 U. S. 620. } 2. (d^ Colebrook v. Jones. Dick. 1.54. Stanly v. Hume, 1 Hogan, 12. (e) Lillie \ . Ijillie. 2 My. & Kcene, 401. (f ) Lawrence v. Lawrence, 3 Paige. SOT. (g) 2 II. S. 620, i 4. (U) Fiillon v. Kosevell. 1 T.-iige, 17tf. Massey v. Gillelan, iil. 614. (i) Gilbert t. Gilbert, 2 Paige, 603. 220 CliajJ. 6.J PROCEEDINGS TO A DECREE. 204; twenty days after the service of such notice, the defendant may except to the sufficiency of the sureties, by giving notice of such exception to tlie complainant's solicitor, {k) The manner in which this exception is to be taken is pointed out in the statute, " ly giving notice of such exception," &c. Of course no exception need be filed. "Within twenty days after notice of such exception, the sureties in the bond must justify, by an affidavit that they are worth double the penalty of snch bond, over and above all debts ; of which affidavit a copy must be served on the defendant or his solicitor. This justification will operate to discharge the order to stay proceedings. {I) *SECTIO]Sr II. [ *105 J THE DIFFEREKT SOETS OF DEFENCE. The defence to a suit in equity may be either by demurrer, by plea, by answer, or by disclaimer.(7) By a demurrer the defendant demands the judgment of the court whether he shall be compelled to answer the bill, or not. This species of defence is resorted to where it appears upon the face of the bill itself that there is no equity in the case, on the part of the complainant. By a plea, the defendant may show some cause why the suit should be dismissed, delayed, or barred. A plea sets up matter of defence not appearing in the bill. By answer, controverting the case stated by the complainant, the defendant may confess and avoid, or traverse and deny the several parts of the bill ; or, admitting the case made by the bill, may submit to the judgment of the court upon it, or upon a new case made by the answer, or both. By a disclaimer, the defendant may at once terminate the suit by disclaiming all right or interest in the matter sought in the bill.(?») And all or any of these modes of defence may be joined; provided each relates to a separate and distinct part of the biil. A cross Mil may also be considered a species of defence.(w) (i) 2E. S. 620, «5. U)M. ib. S6. (j») Mitt'. Eq. PI. 106. (k) See Galatian v. Erwin, Hopk. 48, S8. (7) Under the Code o* "NTeTv Tork, the only pleading on the part of the defendant is either a demun'er or an answer. (Code, J 143.) The same provision is to be found in the Codes of Kentnehy, ($ 117 ;) Kansas, (j 93 ;) Wisconsin, (§ 48 ;) Ohio, {^ 84 ;) and Minnesota, (J 72.) 231 105 mOCBEDINGS TO ADECREE. [Book L SECTION III. DEMUKREE. Its nature and uses.] Whenever any ground of defence is apparent upon the bill itself, either from the matter contained in it, or from de- fect in its frame, or in the case made by it, the proper mode of taking advantage of it is by demiuTer.(o) (8) (o) Mitf. Eq. PI. 107. (8) By the Code, the defendant may demur to the complaint irhen it appears upon the face thereof, either 1. That the court has no jurisdiction of the person of defendant, or the subject of the acticm, or 2. That the plaintiff has not legal capacity to sue ; or '■S. That there is another action pending butsveen the same parties for the sau: i cause ; or 4. That there is a defect of parties, plaintiff or defendant ; or 5. Tliat several causes of action have been improperly united ; or 6. That the complaint does uot state facts suificieat to constitute a cause of aotioi . (Code, § 144.) However defective the complaint may be, a defendant can avail himself only of tl i causes of demurrer specified in the above section of the Code. (Yau Sant. Eq. Pr. 18.' ; lieah V. Hayes, 5 Sandf 040, 643; Baire v. Balcer, 5 'S. T. 363 ; Swift v. DeWitt, i How. Pr. 280 ; S. C. 1 Code R. 25.) Hence a demurrer cm the ground of mere ni-- (jertainty, or iudefiniteness is irregular. (Ilicharcls v. Edick, 17 Barb. 260 ; Graliau V. Camnian, 5 Duer. 697; Spies v. Accessory Transit Co., id. 662; Koeder v. Ornn by, 13 Ab. 334 ; Seeley v. EnijeU, 13 N". T. 542 ; Village of Warren v. I'hilUps, .'lO liarb. 646.) So, also, as to redundancy, (ib. : Iloeder v. Ormshij, Supra; IFard v. ll'urd,5 Ab., N. S. 145;) or irrelevancy, (Smith v. Greeviri; 2 Sandf. 70itatute, or at common law, and void, the demurrer should be sustained. (Miles v. Collins, 1 Mete. 308.) In Massachusetts, the defendant, instead of filing a formal demurrer, may insist on any special matter in his answer, and have the same benefit thereof as if he had de- muiTed to the bill. (Rule 28 of the Rules of Practice in Chancery.) A demurrer must be accompanied with a certificate that it is not intended for delay. (Gen. Stat, ch. 113, 5 5.) In the Equity courts of the United States, no demurrer will be allowed to be iiled to any bill, unles.s 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 inter- posed for delay. (Rule 31 of Rules of Practice.) Section in. Subd. 1. For want of jurisdiction. Under the former practice it was necessary the bill should show a state of facts from wliich it would be apparent that the court had jurisdiction. (Mitf Bq. PI. 35.) Under the Code, it seems this is not essential. It is ouly where it appears on the face of the complaint that the court has no jurisdiction of the person of the defendant, or the subject of the action, that a de- murrer on this ground is allowed. (Van Sant. Bq. Pr. 185, 186.) This has been ex- pressly held, under the Code ; and further, that on a demurrer specifying for cause that the complaint does not state facts sufficient to constitute a cause of action, the question, that the court has not jurisdiction of the subject of the action, cannot be raised. ( Wilson v. Mayor, ^c, of Neio York, 6 Ab. 6.) The want of jurisdiction for which a demurrer will lie, is either jurisdiction of the subject matter, or jurisdiction of the person of the defendant. (V"an Sant. Bq. Pr. 186.) " That the court has no jurisdiction of the person," means that the person is not .subject to the jurisdiction of the court; not that the suit has been irregularly com- menced. (Nones Y. Hope Mu. Life Insurance Company, 5 How. Pr. 96 ; S. C. 3 Code Rep. 161 ; 8 Barb. 541.) Au objection of this description can only be taken by de- muiTer when the defect appears on the face of the complaint. (Wilson y. Mayor, 4-c., of New York, 6 Ab. 6; S. 0. 15 How. Pr. 500 ; Koenig v. Nott, 8 Ab. 384; S. C. 2 Hilt. 323 ; Boll v. Feller, 16 Cal. 432.) The objection must be fully made out ; and no presumption will be indulged against the jurisdiction of an inferior tribunal, where enough is shown to bring the case within the general language of the statute con- ferring jurisdicti(m. (Foster v. Hazen, 12 Barb. 547. If the objection l)e not raised, either by demurrer or answer, yet whenever want of jurisdictiim appears in any sub- sequent stage of the suit, the objection may be raised and judgment, if entered, will be set aside. (Valarino v. Thompson, 7 jST. T. 576.) The court whose jurisdiction is impeached, ha^ power to determine the question whether it possess it or not. (King v. Poole, 36 Barb. 242.) "Where there are several causes of action, but of one of them the court has no jurisdiction, the demurrer must be to that one, and in this form ; and not to the whole complaint as for a misjoinder of actions. (Cookx. Chase, 3 Duer, 643.) In California, a demurrer on the gi'ound '■ that the court has no jurisdiction either of the person of the defendants or of the subject of the action," is sufficiently explicit, under the rule of construction adopted by the courts of that state. (Elissen v. Hci- hck, 6 Cal. 38o.) "When a bill sets forth various claims, and the defendant filet a general demurrer, the demurrer will he oveiTuled if any of the claims be proper for the jurisdiction of a court of equity. (Castlcmanx. Fisiic/t, 3 Rand. 598 ; Kimberly v. Sells, 3 John. Ch. 467 ; G-raves v. Downey, 3 Monroe, 356 ; Blount v. Garan, 3 Havw. 88 ; Mortone v. Granada AcaileinicS, 6 Sme. and Mar. 773.) A demuiTer to 224 Chap. 6.] PTlOCEEniyaS TO A DECREE. J 06 sufficient matter against him. It is a.n allegation by a defendant which, the -whole of a bill containing some matters relievable and others not, is had, unlesi? the bill is multifarious. {IHmmock v.Mxbi/,20 Pick. 368.) In order to sustain a demun-er to the whole of a bill for want of jurisdiction! it must appear that no sul)- stautial and essential part of the complaint is within the jurisdiction of the court. {Botton Water Power Company v. Boston, (/• Worcester Mailrnad Company, 16 Pick. 512.) In the equity courts of the United States, the citizenship of the parties should ap- pear on the face of the bill to entitle the court to talce jurisdiction ; otherwise the .jause will be dismissed. {Dodge v. Perkins, i Mason, 433; Story Eq. PI. § 492.) The want of such an averment may be taken advantage of by demurrer. (Story Eq. PI. 5 492.) And where the want of jurisdiction is a|)parent on the face of the pro- seedhigs, from a defective statement of the citizenship of tlie different parties, it is fatal at all times, and may be insisted on by way of motion, or otherwise, iu any stage of the cause, and even upou appeal. '{Dodge v. Perkins, i Mason, 4:W. See Uso Story Eq. PI. § 26, note, § 10, :i4, 492; liingUam r. Cabot. 3 0all. 382; Jackson r. Ashton, 3 Peters, 148 ; Hughes x. Jones, 2 ilaryl. Ch. Deois. 178 ; Niles v. Wil- Uams, 24 Gonu. E. 279 ; Ketelmm v. Drigqs, 6 McLean, 13.) As to the amount in controversy, it has Ijeeu already stated (ante. p. 59, note 6), that as the constitution of 1846 and tlie Code have abolished every limitation on that subject in equitable actions, the court will now take jurisdictiou of an action where the amount involved is less than |100. Consequently, a demurrer on the ground that the amount in dispute is less than .$100, will no longer lie, Stibd. 2. Plaintiff's want of capacity to sue. A demurrer will lie under this sntH division when it appeai-s from the oomplaiut that the plaintiff has no title to the char- acter iu which he sues. As when it is stated therein that the plaintiff sues, as iilministrator under void letters of adniiuistration. or in virtue of a grant of letters in s, fureign country, the objection may be taken by demurrer for the reason that the plaintiff has no right or legal capacitv, under such letters, to sue in our eoKrts. (Mitf Eq. PI. 15.5; Coop. Eqt PI. 169, 170; Van Saut. Eq. Pr. 187.) This -sras tlie rale prior to the Code. Since the Code, it has been decided that a plaintiff swing as administrator, &c., must show his appointment as administrator in the eomp.laint, and that he is entitled to recover in that capacity. A mere description (kf himself in the complaint, as administrator, &o., is not sufficient ou demurrer. (SIteldmi v. Soy, 11 How. Pr. 11.) So as to a receiver suing in his representative capacity. A demurrer will lie unless he set forth the time, place and manner of his appointment, ( White V. Joy, 11 How. Pr. 36 ; S. C. 13 jST. T. 86 ; Chautauque County Bank v. White, 6 N". T. 236.) Tfhere a complaint by a receiver alleges that he was duly ap- pointed receiver, but does not state facts from which the court can see that he was so ap- pointed, the proper remedy is by motion, to make more definite and certain. {Cheney V. Fi^ke, 22 How. Pr. 236.) In Smith v. Levinus, (8 K. T. 472), it was held, on demurrer to a complaint in an action by the supervisor of a town, which in its commencement simply recited, " the complaint of the plaintiff above named, as supervisor," &c., that it was sufficient. The capacity of the plaintiff to sue is independent of the facts constituting the canse of action. Hence that question cannot be raised by dsmurrer under the 6th subdivision of § 144. {Bank of Lowville v. Edwards, 11 How. Pr. 216; Viburt v. Frost, 3 Ab. 120 ; Myers v. Machado, 6 id. 198 ; S. C. 14 How. Pr. 149 ; Sobart v. Frost, 5 Duer. 672.) "Where it appears from the complaint, on a pi'omissory note, that the plaintiff holds it as a collateral security, under a trust instrument expressly authorizing him to sell, but not expressly authorizing him to sue upon it, a denmrrer ior want of capacity to sue, will be sustained. {Nelson v. Eaton, 7 Ab. 30.').) "Where a complaiut by a corporation omits to allege facts showing the plaintiff's capacity to sue, and the defendant demurs, for the sole cause that the complaint does not state facts sufficient to constitute a cause of action, he cannot avail himself of the objection that the plaintiff has not capacity to sue. {Fulton Fire Insurance Com- pany v. Baldwin, 27 N". Y. 648 ; S. C. 5 Trans. App. 180.) "When the plaintiff sues by a name representing uo person, natural or artificial, tlie objection is not to be raised by demurrer, but by motion. {Bank of Haoana v. J/a- gec, 20 N. Y. 355 ; S. C. 7 Ab. 134 ; 16 How. Pr. 97.) If the defendant wishes to raise the questiim of the legal capacity of the plaintiff to sue, he must raise it specifically in his demurrer. It cannot be raised on a demur- rer slating that the complaint does not contain facts sufficient to oimstitute a cause of iictiou. {Bank of Lowmllo v. Edwards, 11 How. Pr. 216 ; Vibert v. Frost, 3 Ah. • Vol. 1—15 223 \()^ PROCEEDINGS TO A DECREE. [Book'T. admitting the matters of fact stated in the bill to be true, shows that 120.) If not taken by flemmTer or answer, it will in all subsequent proceedings, be held to be waived. (Code, 5 148; Hustings v. McKirdey, 1 B. D. Smith, 27:5.) The plaintiff's incapacity to sue may be waived by pleading over. The general denial pleaded admits the plaintiff's capacity to sue. (18 Ind. Hep. 92.) "When a corporation sues, it must show how it was created. "Without this, there is a fatal omission of one of the material elements of a good cause of action. {Juhn- son V. Kemp, 11 How. Pr. 186.) But the omission, on the part of a corporati(m. to show its incorporation, cannot be reached by a general demm-rer stating that the com- plaint does not state facts sufficient to constitute a cause of action. That the plain- tiff has not legal capacity to sue, is made a ground for special demurrer, and must therefore, be specially assigned. (.Bank of Loioville v. Edwards, 11 How. Pr. 21fi.) A corporation, suing as such, need not allege in the complaint, that it is a oorpin-a- tion and has legal capacity to sue; and the want of such an allegatiim affords uo ground of demurrer. (Phcenix Bank v. Donnell, 41 Barb. 571; S. G. 40 N. T. 410.) In such a case, there is an implied averment that the plaintiff is a C(n-porati(in. JKier in a suit by a corporation incorporated by the name of an individual. (Pei Sutherland, J. lb.) The want of capacity must appear before it can become a ground of demurrer; not from the omission of facts that would expose such want. (Union Mutual Insurance Company v. Osgood, 1 Duer. 707.) "When an infant sues by guardian, as provided by the Code, the complaint must allege the due appointment of the guardian; otherwise it will be demurrable on the ground that it appears " the plaintiff has not the legal capacity to sue." (Graiidiiuh V. Thrall, 44 Barb. 173; Hulbcrt v. Young, Hi How. Pr. 413.) In the United States of America v. Wagner, (Law Rep. 3 Eq. 724), a demurrer was allowed to a bill brought by "the United States of America," on the ground that a foreign state is not allowed to sue in a court of equity, without putting forward some public officer on whom process may be served, and who cau be called upon \» give discovery on a ci'oss bill. The objection that the plaintiff has not legal capacity to sue is waived, if not taken by demurrer or answer. {Palmer v. Davis, 23 N. Y. 242 ; Belshaw v. Colic, 1 E. D. Smith, 213 ; Hastings v. McKinley, id. 273.) So held where the objection was that the plaintiff was a maixied woman, suing without a next friend, prior to the act of 1857. {Palmer v. Davis, supra.) Or that the plaintiff was a foreign executor. (Bobbins V. TFeHes, 26 How. 15. See also Van Amringe v. Barnett, 8 Bosw. 3.')7.) If, of sevei'al plaintiffs, some have an interest in the matter of a suit, and others have no interest in it, but are merely the agents of their co-plaintiffs, a general -de- murrer to the wh(ile bill is a good defence. {King of Sjiain v. Machado, 4'Kn«s. 224. And see Cuff v. Platett, id. 242; Clarkson v. De Peyster, 3 Paige, 339; Dias V. Bouchard, 10 id. 445.) Snbd. 3. Another action pending between the same parties. This ground of ob- jection does not usually appear on the face of the complaint. The defendant, in most cases, will be obhged to set it up in his answer. If the objection is not taken in one way or the other, it will be deemed waived; for a second proceeding n must be taken by demun-ev. Aiideison v. JliU, r>3 Barb. 238 ; Youngs v. Seelij, supra; Winterson v. Eif/hth Ave. R. B. Co. 2 Hilt. 389.) But if in fact the complaint contains but a single cause of action, although it be stated in different courts, a demurrer ou the ground that several causes of action are improperlj- united, is bad. (Hillman v. milman 14 How. Pr. 456.) If two causes of action of a class that admits of their being united, but of one of •which the court has no jurisdiction be joined, a demurrer to the entire complaint, on the ground that several causes of action are impi'operly united; will not be sustained. The demurrer must be coutined to the cause of action of which the court has no jurisdiction, and must specify the ground of the want of jurisdiction in the court. (Cook V. Chase, 3 Duer, 643.) Allegations of fraud, made in supjport of a cause of action on contract, but not of themselves ccmstituting a cause of acti(m, do not make an improper joinder. (Camp- bell V. Wright, 21 How. Pr. 9.) And where a complaint against partners shows a cause ol action ou contract, and demands judgment therefor, it is not rendered de- murrable by subsequent allegations of the defeudant's insolvency, of their confession of judgment to defraud creditors, and by asking for an injunction and a receiver ; although such subsequent matter might be stricken out, ou motion. (Meyer v. Fati Collem, 7 Ab. 222; S. C. 28 Barb. 230. See Diirant v. Gardner, 19 How. P. 94; S. 0. 10 Ab. 445 ) ■ "Where several causes of action, of the same nature, are united in the same complain', a demurrer on the ground that they are not separately stated, or plainly numbere ■, will be overruled. The remedy is by motion. (Bass v. Comstock, 38 N. Y. 21 ; S. C. 36 How. .382; Anderson v. Hill, 53 Barb. 238; Fickett v. Brice, 22 How. Pr. 195 ; Dorman v. Kellam, 14 id. 184 ; S- C. 4 Ab . 202 ; Moore v. Smith, 10 How. 361 ; Peek- ham V. Smith, 9 id. 436 ; Robinson v. Judd, id. 378 ; Gooding v. McAlister, id. 123 ; Forsyth v. Edminston, 11 id. 408 ; Waller v. Raskan, 12 id. 28 ; Woodbury Y. Sack- rider, 2 Ab. 402 ; Badger v. Benedict, 4 id. 176 ; Harsen v. Bayaud, 5 Duer. 656 ; Bess v. Buffalo <^- Niagara Falls R. R. Co., 29 Barb. 395. "> There are some decis- i(ms to the contrary, however. (Getty v. Hudson River R. B. Co. 8 How. Pi'. 177 ; Van Aamee v. Peoble. 9 id. 193; Durkee v. Saratoga ^ Wash. B. B. Co. 4 id. 226; Bike V. Warmer, 5 id. 171 ; Colwcll v. jV. Y. 4- Erie B. R. Co 9 id. 311.) In Aeome V. American Mineral Co., (11 How. Pj-. 24,) where a demurrer was interposed for this cause, the court refused to order a judgment for frivolousness. Where the parties joined as plaiutifi's are all interested in the principal question raised in the bill, and the issues tendered are simple, and a multiplicity of suits may be avoided, a demurrer for multifariousuess will not be sustained. (People v. Hur- rill, 26 Cal. 300 : Garner v. Wright, 28 How Pr. 92.) Where a complaint alleged that the defendant had become possessed of a chat- tel, the property of the plamtlft', aud wrongfully converted it to his, the defendant's, use, and then demanded damages for such taking aud detention, and a restitution of the chattel, it was held demurrable for an improper joinder of causes oi action. (Maxwell v. Farnham, 7 How. Pr. 236.) If a demun-er he interposed because two causes of action are joined in the com- plaint, and either of the causes of action is well pleaded, the demurrer will be over- ruled. (Butler V Wood, 10 How, Pr. 222; Martin v. Mattison, 8 Ab. 3.) Courts for detaining the plia,intiflf's property, aud lor wrongfully and negligently injuring it while in the defendant's possessi(m as sheriif, may be joined in the same covmiug, 12 Ab. 437; S. C. 34 Barb. 522; 22 How. 30 ; Botckkiss v. Flting, 36 Barb. 39.> "Where a misjoinder of parties plaintiff appears oofthe face of the complaint, in an action by husband and wife, a demurrer under subdivison 6 may be sustained. (Mann v. Marsh, 21 How. 372 ; S. C. 35 Barb. ()8 ; Walrath v. ffandi/, 24 How. 353.) If any one of several causes of action set forth in thecomplaiut fails in itself to show auy counectiou between the facts therein alleged and a defc:ndaut, such defendant may demur. (Sinclair v. Fitch, 3 B. D. Smith, 677.) A fatal defect in one cause of ac- tion separately stated, cannot be remedied by aUegatioiis constituting another cause of action, contained in the same complaint, (,1b.) Want of interest in the defendant is a matter of substance, and a good ground of demuifer, if it appear on the face of ihe complaint. Thus : Where the complaint, in an action against husband and wile, to change the wife's separate estate, does not state facts sufficient to show the liability of such estate, the defendants may demm' jointly. (Goodalt v. McAdam, 14 How. 385 ; Goelet v. Gori, 31 Barb. 314.) A demurrer admitttiug facts sufficient to constitute a cause of action cannot bo snstamed. (Richard v. Fdick, 17 Barb. 260 ; Gi-aliam v. Gamman, 13 How. Pr. 360 ; S. C. 5 Duer, 697 ; Bammond v. Budson River Iron ^ Machine Co., 20 Barb. 378 ; Bank of Lomville v. Edwards, 11 How. Pr. 216 ; Billman v. Billman, 14 id. 456.) By a demurrer under the 6th subdivision, the question as to the want of parties, or as to tbe form of action, cannot be raised; (Loomis v. Tifft, 16 Barb. 541;) nor the question as to the want of jurisdiction. ( Wilson v. Mayor, fc, of New York, 4 E. D. Smith, 706, n.) In general, if the case stated in the complaint is such that, admitting the whole oouiplaint to be trae, the court ought not to give the plaintiff the relief or assistance he requires, iu whole or in paa-t, against all or any of tlie defendants, it is not only a sufficient, but an appropriate, ground of demurrer by the defendants against whom no such cause of action is stated. (Van Saut. Bq. PI. 695 ; Eq. Pr. 192.) Want of interest in the subject matter of the suit, in the case of a sole plaintiff, is not only a good cause of demurrer, but if the suit is joint, want of interest in either of the plaintiffs renders the bill equally defective. (2 Story Eq. PI. J 509 ; Palmer v. JJavis, 28 X. Y. 242; Walrath y. Bandy, 24 How. Pr. 353.) Or the facts that the plaintiff is not the real party in interest. (Westervelt v. Alcock, 3 E. D. Smith, 243 ; Jackson v. Weedoit, 1 id. 142; Savage v. Corn Exchange Ins. Co. 4 Bosw 2.) But the want of that interest in the plaintiff' which authorises a demurrer, it is said; is to be understood with reference to the principle of representation which pre- vailed iu the doctrine of parties iu chancery ; and as a general rule, if the defendant will be perfectly protected by responding to the plaintiff', and if there is no uecessitv, or substantial equity, iu protecting the fund agamst the party himself, if recovered, 232 Cliap. 6.J PROCEEDTXGS TO ADECREE. 206 A demurrer to abill must be founded upon a polut of law which goes to the absolute denial of the relief sought.(s) It must express the (s) Vei'plank v. Caiiics, 1 John. Ch, 57. thfi plaiutiif may be regarded, "within the meaning of the Code, as the real party in iuterest. {Myers \. Machado, 6 Ab. 198; Van Saat. Eq. Pr. 192.) In Xew i'ork, under the Code, the objection that the action, whether it be legal or equitable, Wiis not commenced within the time limited by statute, can only be taken by answer. The defendant caoiiot demur on that ground ; even where it appears Hu the face of the conipUiiut, that tlie cau^e of action is barred by the statute of limita- tions. {Sands v. St. John, yo Btu'b. 62S ; S. G. -S.i How. Pr. 140 ; Code, J 74.) In Ohio, where thb cause of action appears, on the face of the petition, to be barred by the statute of limitatiims. there is, in law, no cause of action alleged ; and the defendant may either demur, or put in an answer setting up the statute of limitations. (Stui-ges V. Burton, S Ohio State E. 215.) If the petition does not,* on its face, show that the cause of action arose at a period remote enough to create a bar, then the statute must be set up by answer, (lb.) In California, if it appears on the lace of the ctmiplaint that the demand is barred by the statute of limitations, a demurrer will be sustained. (2 Estee Pr. 0:58.) But the bar of the statute must clearly appear on the face of the complaint. (Sublette v. Tinncy, 9 CaX. i-Z'.i; Barringer \. Warden, 12 id.. 'ill; Sniithv. Sull,l\iii.85 ; SniHIi V. Bichmond, id. 476 ; Ord v. De LuGuerra, l.s id. (i7 ; Maxwell \. Kennedy, 8 How. U. S. 210 ; see also, Wisner v. Burnett, 4 Wash., C. C. 631.) It should be distinctly stated in the demurrer. {Brown v. Martin, 25 Cid. 89; Farmell v. Jackson, 2'iiA. 106.) In Mi&souri, also, it is held that where the statute creates an absolute bar by mere l.ipse of time, without exception, the defence may be made by demurrer, if the ne- lessary facts appear in the complaint. (Slate v. Bird, 22 Mo. Rep. 470.) But a de- mniTer should be resorted to only where it clearly appears that if the plaiutifl's case has been fairly stated, no recovery can be had. (McMair v. Lott, 25 Mo. Rep. 182.) In Massachusetts, the statute of limitations' operates, in cases where it applies, ex proprio vigore, in equity as well a;, at law. (Farnam v. Brooks, 9 Pick. 243 ; Johnson V. Ames, 11 id. 182 ; Bowman v. Wallham, 1 How. tJ. S. 189.) In Jioitucky, the statute of limitations is a bar, in equity. (McDowell v. Heath, 3 A. K. Marsh, 323; Beckenhridye v. Churchill, 3 J. J. Marsh, 15.) It seems, how- ever, that it does not apply in tolidem verbis, but has been adopted as reasonable and consistent. (Crain v. Bratner, 4 J. J. Marsh, 77.) In Connecticut, where the delay has been such as to be a bar at law, it will be so in equity. (Banks v. Judah, 8 Conn. 145.) The same principle exists in the courts of the United States. (Elmendorf v. Taii- Jor, 10 AVheat. 152; Miller v. Mclntyre, 6 Peters, 61.) In Maine, the statute of limitations operates on suits in equity, as well as actions at law. (Denny v. G-ilman, 26 Maine, 149, 154 ; Chapman v. Butler, 22 id. 191.) When the complaint shows the cause of action to be within the statute of frauds, a demurrer willlie. (Gi'af v. Worthwin«, 1 Handy (Ohio) 19; Randall Y. Howard, 2 Black. U. S. 585.) "When one of several defendants demurs (m the ground that the petition does not state facts sufficient to constitute a cause of action, the true inquiry is, does the peti- tion show a cause of action against the defendant who demm's '? If so, the demur- rer should be overraled. (Slevin v. Reynolds, 1 Handy, 37.) Where the petition shows that at the time of making the contract, the defendant was a married woman, and there is no statement showing that it was a contract obligatory in any respect, or on any account, upon her, no cause t>f action is shown, and the objection is well taken "by demnn-er. (Graf v. Worthwine, 1 Handy, 19.) A demurrer is not the mode of raising the objection that the cause of action had not accrued when the action was commenced. (Smith v. Holmes, 19 2Sf. T. 291.) Thus in action on a bond dated May 10, 1853, conditioned for the payment of a sum "in two yeai'S from the first day of April last, with annual interest," where a demun-ei on the ground that no cause of action was stated, was tried in June, 1854, it was held that as interest was due before the time of trial, the plaintiff was entitled to judg- ment upon the demurrer. (Ibid.) The court will not presume, in support of a de- niuiTer, that the debt was not due when the action was commenced. (Maynard v. Taloott, 11 Barb. 569.) Where a demmTer to the complaint states the objection to it under the 6tb subdi- 233 ;| Q J PROCEEDINGS TO A DECREE. [Book I. - grouuds upon wliich it is founded; and in doing this it must be posi- tive, explicit, and certain, leaving nothing to supposition or infer- ence.(it) (9) {t) Bai-tou, 108. 2 Ves. S3. Edsell v. Buchanan. vision of section 144, " that it does not present facts sufficient to constitute a cause oC action, in that, 1st," &a., stating as the specific objection, a want of capacity in the plaintiff to sue, the inadvertance will be disregarded. {Connecticut Bank v. Smith, 17 How. Pr. 487.) A demurrer under the 6th subdivision will not raise the question of a defect of parties defendant. (Bishop v. Milivaukee, 18 "Wis. 4.31.) A demurrer under this subdivision puts in issue the entire complaint. (While v. Brown, 14 How. Pr. 282 ; Spear v. Downing, Vi Ab. 442 ; S. 0. 34 Barb. .523.) A statement that certain parts of the complaint are immaterial and redundant does not vitiate the demun-er. (Smith v. Brown, 6 How. Pr. 383.) An objection to' the pleading of a written instrament by stating its legal effect, in- stead of setting forth its contents can he taken only by demurrer. (Kellogg v. Baker, 15 Ab. 286.) A denmrer uuder the 6th subdivision admits the validity of the statute authorizing the plaintiff' to sue. (Litchfield v. McComber, 42 Barb. 288.) In Kentucky, the grounds of demurrer to the petition [complaint] are the same as tbe first five causes specified in section 144 of our Code. (Myers' Code, § 120 p. 37.) In Ohio, they are precisely same as those specified in our Code. (Seney's Code, ^ 87, p. 113.) So, also, in Wisconsin, (Code, $ 49 ;) Kansas, (Code, $ 96 ;) Indiana, (Code of 1852; Bick. Civ. Prao. 101;) and Minnesota, (Code, § LXI ; Pub. Stat. 1859. p. 540.) (9) A demurrer must distinctly specify the grounds of objectiim to the complaint. Unless it do so, it maj' be disregarded. (Code of N. T. § 145 ; Code of "Wi.-^consin, § 50 ; California Prao. Act, sec. 41 ; Stat, of Oregon, § 67.) Unless it state the spe- cific objection refied on, it will be oven-nled. ( Viburt v. Frost, 3 Ab. 140 ; S. C. sub. nom. Mobart v. Frost, 5 Duer. 672.) .Thus, in an action by the receiver of a judg- ment debtor, the defendant cannot, iinder a demnn'cr under the sixth subdivision, avail himself of the objection that the appointment of the plaintiff' appears to be in- valid. That objection can only be raised upon a demurrer specifying as its ground, that the plaintiff has not the legal capacity to sue. (lb.) Yet, in Connecticut Bank V. Smith, (9 Ab. 168; S. C. 17 How. Pr. 487,) where the demurrer specified that tbe complaint did not state facts sufficient to constitute a cause of action ; that it did not show the plaintiff' 's capacity to sue ; it was held that although the latter objcc- , tiou was not contained in tlie former, yet it was sufficiently stated in the demui'rer to allow the defendant to avail himself of it on the argument. If a demurrer does distinctly specify the cause of action to which it is intended to apply, although it purport, in its commencement, to be a demun-er to the whole pleading, it will be regarded as a demurrer only to the parts specified, and not to the whole preceding pleading. (Matthewson v. Beach, 4 Seld. 173.) "Whenever any of the objections euumerated under section 144 of the Code, appear on the face of the complaint, a demurrer therefor must specifically state the particular objection relied on. All objections not so stated are waived, except those arising under subdivisions 1st and 6th. (Fulton Fire Ins. Co. v. Baldioin, 7 N. T. 648 ; S. 0. 5 Trans. App. 180 ; Kent v. Snyder, 30 Cal. 666 ; Malone v. Stilwell, 15 Ab. 421.) Thus if a demurrer on the ground that the complaint does not state facts sufficient to coustitute a cause of actiim specifies the particulars in which the complaint is defective, the defendant thereby excludes all other grounds of objection tban those particularly set forth, and cannot insist on any others, on the argument of the demurrer. (Xeliis v. DeForest, 16 Barb. 65.) So when a defendant demurs to the complaint, without objecting to the want of proper parties, or to the form of the action, he waives the right to insist upon those objecticms ; and for all the purposes of the demurrer the complaint will be deemed unobjectionable by reason of any de- fects of that nature. (Loomis v. Tift, 16 Bai'b. 541,) Except in reference to the alleged want of jurisdiction (whether of the person or the subject matter), or a defect of parties (plaintiff' or defendant), all of the grounds oi' demurrer may be properly stated in the very words of the statute. (Getty v. Sud- son liiver E. It Co. 8 How. Pr. 177 ; Darkee V. Saratoga 4- Wash. R. IL Co., 4 id. 171; Swift V. DeWitt, 3 id. 280; Si/de v. Conrad,'b id. 3(il ; Johnson v. Wctmore, 12 Barb. 433 ; Saire v. Baker. 5 IST. T. 3,57 ; Hulbcrt v. Young, 13 How. Pr. 413 ; I'aine v. Smith, 2 Duer. 298; White v. Brown, 14 How. Pr. 282; Hoogland v. Hud- 234 Cliap. 6.] FROCEBDINGS TO A DECREE. ] 06 As a demiiiTer, relies merely upon matter apparent on the face of tlie I ill, so much of the bill as the demurrer extends to is taken for true. (10) Thus, if a demurrer is to the whole bill, the whole bill is taken son, 8 id. 343 ; Spear v. Downing, 34 Barb. 522 ; Ellison v. Salleck. 6 Cal. 386.) The deniurrer need not point out the defects, or show why the facts stated do not consti- tute a cause of action. {Johnson v. Vetmore, 12 Barb. 433.) A demurrer in tlie language of the Code "that the plaintiif has not the legal capacity to sue," is siiffi cient to raise the objection. (Hulhert v. Young, 13 How. Pr. 413.) But a demur- rer following the words of the Code (^ 144 sub. 41 "that there is a defect of parties defendant," is defective in not specifying the particular defect. {Skinner v. Stnart, 13 Ab. 442.) So, a demurrer stating that "it does not appear that the plaintiff had auy title to the note when the suit was commenced," is insufficient to raise the ques- tion as to the plaintiff's right to sue. ( White v. Loiv, 7 Barb. 204.) When a demurrer is taken for want of parties, the former practice in equity was that it must show who are the proper parties, from the facts stated in the complaint ; not indeed, in all cases, by name, but in such a manner as to point out to the plain- tiff the objection to the complaint, and to enable him to amend by making proper parties. (Van Sunt. Eq. Pr. 193; Story Bq. PI. § 543.) And the same rule is recognized under the Code. {Ue Witt v. Swift, 3 How. Pr. 280 ; Getty v. Hudson liiDcr Ji. It Co. 8 How. Pr. 177, and other cases, supra.) AVhere tlie ground of demurrer stated is that " the complahit does not state facts sufficient to constitute a cause of action," the question as to the want of parties, or as to the form of action cannot be raised. {Loomis v. Tift, Hi Barb. 541.) Nor the question as to the want of jurisdiction. ( ll'ilson x. Mayor, ^c, of New York, 4 B. 1). Smith, 706, n.) A demnn-ei- will not be sustained on a ground different from that stated ; as if the defect be a want of jurisdiction, and the demim-er be on the ground that the com- jilaiut does not state'facts sufficient to constitute a cause of action. (WiUon v. The Mayor, 4-0., of Neio York, 6 Ab. 6 ; S. C. 15 How. Pr. 500.) Nor will it be sustained on a ground not raised on the argument. {Doughty t. Develin, 2 Duer, 627.) In Kentucky, the demurrer must distinctly specify the grounds of objection to the petitiim [complaint.] Unless it does so, it will be regarded as objecting only that tlie petiti;'U does not state facts sufficient to constitute a cause of action. (Myers' Code, ^ 121, p. 38.) The Code of Ohio contains the same provision. (Seney's Code, § 8b, p. 120.) Also the Code of Kansas. (Sec. 97.) If the plaintiff; in his petition in equity, fails to show that he is entitled to the specific relief asked for, and shows a right to auy relief, even in a court of law, a de- uiarrer to the whole petition will not be sustained as to the whole claim. {Fostt be sus- tained to the whole extent to which it is applied, or fail. {Peabodyv. Wash. Co. Mu. Ins. Co. 20 Barb. 339 ; Cooper v. Clason, 1 Code Rep., jS". R. 347 ; People v Mayor, cjc, of Neil) Torlc, 17 How. Pr. ,57 ; S. C. 28 Barb. 240 ; 8 Ab. 7 ; Wait v. Ferguson, 14 id. 379.) Thus, where a complaint contains two causes of action of a nature that permits their being joined, but as to one of them, the court has no jurisdiction, a de- murrer to the whole complaint on the ground that several causes of action are im- properlj- joined, is not available. It should be for want of jurisdiction, and limited to the proper cause of action. (Cook v. Chase. 3 Duer. 643.) "Where a complaint alleges two distinct causes of action, only one of which is sufficient, and a general demurrer to the whole of the complaint is interposed, it will be overruled. (^Butler V. Wood, 10 How. Pr. 222 ; Martin v. Mattison, 8 Ab. 3.) A joint demuiTcr on the ground that the complaint does not state tacts sufficient to constitute a cause of ac- tion, and that there is a defect of parties, will be overruled, where the complaint shows a cause of acticjn in i'avor of the plaintifts, or some of them, against some of 238 Chap. 6.] PROCEEDINGS TO A DECREE. 208 *Bnt a clemnrrer may be good as to one of the defendants de- [ *108 ] murring, and bad as to others. (/ ) Wliere coupled with an ansiuer.] (16) When a demurrer is to part of the bill only, the answer to the remainder nsnally follows the state- ment of the causes of demurrer and the demand of judgment whether the defendant, ought to be ht4d to make further or other answer. But as a demurrer asks the judgment of the court whether the defendant shall make further or other answer to the bill, or to that part which he has demurred to, it would be inconsistent if the defendant, after making such submission, were to be permitted to answer the bill or (/) Srayor, &o., of London v. Lew, 8 Ves. 40:i. Barstow v. Smith, Walk. Ch. 394. Storv Eq. I'l. § 445 ; 1 Smith Ch. Pi-, i'd Am. eil.) iOB. ■' the defendants. (People v. Mayor, ;,e v. Barton, 6 Cowen, 290; Freeland V. McCullongh, 1 Denio, 414 ; Wolfe, v. iMyster, 1 Hall, 146 ; French v. Tunstall, Hempt. 204; McCiie Y^ Corp. of fFosft. 3 Oranch, 639; Stoddard v. T)-eadwell, 26 Oal. 294 ; Vermont v. Society for Prop, of Gospel, 2 Paine, C. C. 545 ; Brown v. l)iich&i-ne, 2 Curtis, C. C. Rep. 97. (16) If there be more than one cau.se of action in the complaint, the defendant may demur to one or nu)re of them, and answer the residue. (Code of ISTew Yorlt, 5 151 ; Code of Ohio, § 91 ; of Kansas, § 100-; of Kentucky, § 124 ; Van Saut. Bq, I'r. 184.) But he cannot answer and demur Ijoth, to the whole bill, or to the same part oi a bill. (Clark v. Phelps, 6 John. Ch. 214 ; Beaiiehamp v. Gibbs, 1 Bibb. 481 ; Robertson v. Singly, I McCori Ch.iSi.) . ' The answer anil demurrer are different pleadings, and do not lose their distinctive character ijy being on one paper, and in form connected. (Howard r. The Michigan Southern R. R. Co. 5 How. Pr. 207 ; S. C..3 Code Kep. 213.) The defendant can- not demur to a part, and answer another part, of a complaint which contains but one can.^e t demur to a part of a cause of action, ([ngrdham Y.Baldwin, 12 Ba).:lK 9;) Where the defendant both answers, and demurs to the same pleading, the- plaintiff cau treat neither the answer nor the demurrer as a nullity ; but he should jni>ret<.) strike out the demurrer or the answer, or for an order that the defendant elect b.y:;wMirti .he will abide. (Spellman v. Welder, 5 How. Pr. 5; Howard y. Michigan Satithe-m H- B.. Co., id. 206; S. C. 3 Code Rep. 213. See also ClarJcson v. Mitohell, S'.E.-OfSmith, 269 ; Bolton v. Gardner, 3 Paige, 273; Clark y. Phelps, 6 John. Ch. 214.).";;;;!*.:-;:.-. A defendant, alter having put in ■ aa- aj^sf^e^V will not be allowed to withdraw it and put in a demurrer, unless special rei^sou^tjave shown. (Finch v. Pindon, 19 Ab. 96.) "When a denuirrer and an answer. ai'feyij&Jth.e same paper, and served together, the answer cannot be amended by ouiitti:i4g.,v0e .demurrer. (Howard v. The Michi- gan Southern R. R. Co. 5 How. Pr. 206,)", i,:)Vi.r ;'.; It has been decided in Kentucky, that.^}ie/fe|,ii. answer is filed at the same time with a demuiTer to the complaint, thB;fact;j!e^ife",|lje parties have proceeded to trial with lut objection, and withont noticing .tkh'^^riner, authorizes the inference that the demurrer was waived or oveiTul«d:.;::-,^^>|%ij3, if-c. Turnpike Co. v. Stewart, 1 Mete. 119, cited Myers' Code, p. 355.).....■.^:,:5.>;g^.. 'S/j.. In the Equity courts of the 6^7/i/.erfvS|ftte^.*:^^^^.ndant may denuir to part, plead to part, and answer a.s to the residue otl:.&,0U^:^J^^li: 32 of the liquity Rules.) """"""""' 239 lOQ PROCEEDINGS TO A DECB.be. | Book I. tluit part of it which is intended to be covered by the demiirrer.(^)(lT) It is, for this reason, well settled that an answer to any part of a bill demurred to will overrule the demurrer ; (A) even though the pai't answered be immaterial, (i) But a demurrer for multifariousness is not overruled by an answer denying confederacy, (/c) Nor is a de- murrer to relief only overruled by an answer as to the discovery. (/) When a demurrer is put in to part only of the bill, and is accom- panied by an answer, it should be entitli'd ''The demurrer of CD., &c., to part of the bill of complaint of A. B., and the answer of the said C. D. to the remainder of the said bill of complaint." (m) Where a demurrer and answer are put in, they are filed as one record, and the demurrer is set down for argument, as if it stood alone, and not incorporated with the answer. (?«) By married women.] In a suit against husband and wife, she can- not demur separately from her husband, without a previous order of the court to warrant it. (o) (18) Demurrer ore tenus.] A defendant may, at the hearing of his de- murrer, orally assign another cause of d'-murrer, different from, or in addition to, those assigned upon the record, which, if valid, will sup- port the demurrer, although the causes of demurrer stated in the de- murrer itself are held to be invalid. This oral statement of a cause of demurrer at the bar, is called demurring ore temis. A defendant cannot demur ore tenus, however, unless there is a de- [ *109 "I *niurrer on the record. Upon this ground, where a defendant (o) Jonos V. Earl of Strafford. 3 P. Wms. 81. {h] Tiild V. Claro. 2 Dick. Bl. Hester v. Weston, 1 \'orn. 463. Koberts v. Clayton, 3 Anst. 71.^. U") .Mitf. 172. Savaare v. Snialebroke, 1 Vern. 90. (fc; 1 Vern. 463. J Kq. Ca. Ate. 4U. l/l 2 Dau. 7H. im\ Tomlinson v. Swinneston, 1 Keen, 913. 1)1) 1 Fow. Ex. Pr. 3.W. (o) JJarrou v. (arillard, 3 Ves. & B. 1G5. (17) A defendant cannot answer and demur to the same matter. {Munn v. Bar- num, 12 Row. Pr. 563; S. V. ] Ab. 281; Spellnuni v. Weider, 5 How. Pr. .5; Howard v. Xlie MicliUjan Soiitliern JR. B. Co., id. 207 ; Siinoer v. Ocean Ins. Co. 16 id. 422.) When the defendant both answers and demurs to ihe same pleading, the plaintiff can- not treat either the answer or the demurrer as a nullity, but should move to strike out the demurreror the answer, or forau order that the defendant elect by which he will abide. (Upellmati v. Weider, 5 How. Pr. 5 ; Hnward v. Micldyan /Southern It. U. Co., id. 2Uo; S. C. 3 Code Kep. 213. See also Clarkson v. Mitckell, 3 E. D. Shiith, 26a ; Bolton v. Gardner, 3 Paige, 273 ; Clarl: v. I'helps, 6 John. Ch. 214.) in Struver v. Ocean Ins. Co. (16 How. Pr. 422) wliere the answer contained an t)bjec- tiou of want of parties, it was held tt) be a denuuTor, and the defendant was com- pelled to elect wnuther to abide by the answer or the demurrer. (18) Where a marned woman is joined as a defendant, with her husband, in re- spect tt) her separate estate, she uuiy put in a separate demurrer. (ArnoM v. Minrjold, 16 How. Pr. 158; Haslcij v. Rittci-, 18 id. 147; S. 0. 9 Ab. 400.) If the couiplaiut. in such a case, does not state facts ^uiHcient to show the liabihty of the wife's separate estate, a joint demurrer by tlieii! will lie. (Goodall v. McAdani, 14 Hurt-. Pr. 385; Cocletx. Cori, 31 iiarb. 314.) ;i4:U Cliap. 6.] PROCEEDINGS TO A DECREE. ] QQ had pleaded, and upon the plea being overruled, offered to demur ore tenus for want of parties, he was not permitted to do so. (^j) Although a defendant may, either upon the record or ore tenus, as- sign as many causes of demurrer as he pleases, such causes of de- murrer must be co-extensive with the demurrer upon the record. TheiKfore causes of demurrer which apply to part of the bill only, can- not be joined with causes of demurrer which go to the whole bill, {q) On the argument of a demurrer, the complainant is boxmd by the case stated in the bill in relation to the discovery sought, and will not be allowed to maintain his right to discovery, upon a sugges- tion ore tenus at the bar, not consistent with the case made in the bill. (/•) Under the general demurrer for want of equity, a demurrer for want of parties may be made ore tenus. (s) A demurrer ore tenus must extend to the whole bill, and cannot be made to a part only, {t) But it seems that after a demurrer to part of the bill has been overruled, the defendant may demur ore tenus to the same part, (m) Where a general demurrer to the whole bill is overruled for want of equity, the defendant may demur ore tenus, upon the ground that the suit is brought by -a feme covert in her own name, when she should have prosecuted by her next friend, {v) A defendant who has pleaded to a bill cannot demur ore tenus to it, on his plea being overruled ; because there is no demui-rer on the record, (w) This kind of demurrer is only allowed upon new grounds ; not where a written demurrer on the same point has already been over- ruled, {x) Demurrer how signed.'] A demurrer must be signed by counsel ; but is put in without oath, as it asserts no fact, and relies merely upon matters apparent on the face of the bill. («/) It need not be signed by the defendant ; though it is customary for his solicitor to sign it, as well as the counsel. Wien to ie filed.] A demurrer may be filed at any time within the forty days allowed the defendant to put in his answer. (19) And it (p) DurdaBt v. Redman, 1 Vern. 78. Hook v. Doi-man, 1 Sim. & Stu. 227. (q) Pitts V. Stiort. 17 Ves. 213, 21'j. Metcalle v. Brown, 5 Price, 5(i0. (r) Jjittle V. Arclier, 1 Hogan, 65. is) Kobiiisoi) V. Siiiilli, 3 Paige, 231. 6 John. Ch. 143. |«) Slieplierd T. Llnjii, 2 Young * Jer. 400. («) Croacli V. Hiolien, 1 Keen, 385. («) (jarlicis v. Strong, 3 Paige, 452. (to) Hook V. Dornian, 1 Sim. & Stu. 227. (X) Bowman v. Ljgon, 1 Anstr. 1. iy) Mtif. Kq. Pi. -lUi. (19) A demuiTev must be filed with the clevk withm ten days after the service thereof; or the adverse party, ou proof of the omission, wiU be eulitled, without Vol. I.— 10 241 ]^Qg PROCEEDINGS TO A DECREE. [Book I. seems that it may be filed at any time afterwards, until the defendant [ *110 ] is affected* with process of contempt by the return of an at- tachment with proclamations, or the entry of an order to take the bill as confessed, {z) In certain special cases, such as surprise, the court will allow a de- fendant to put in a demurrer, even after he has obtained an order for time.(a) But the general rule is that the defendant, after having ob- tained time to answer, cannot demur. (5) It is always made the special condition of an order giving the defend- ant time to demur, plead, or answer the complainant's bill, that he shall not demur alone. Whenever, therefore, the defendant has obtained an order for time, and is afterwards advised to demur, he must also plead to, or answer, some part of the bill, {c) It has been held that answering to some fact immaterial to the cause, and denying combination, do not amount to a compliance with the terms of such an order, {d) But in another case, (e) which was a bill for a discovery, the answer gave no information, but simply stated the death of a person, and denied com- bination. Lord Eldon said that according to the practice of the court, if the defendant had been under the order not to demur alone, the ad- dition of this short answer would have saved the terms of that order. But though an answer as to a single fact will be a sufScient compli- ance with the condition, such fact must not be one which is covered by the demurrer; otherwise the demurrer will be overruled by the answer. (/) If the defendant omits to put in his demurrer, or to answer within the time limited by the order, and an attachment is in consequence issued against him for want of an answer, a demurrer, even though ;s) East India Co. v. Ilineliman, 3 Bro. Cti. Rep. 37-2. Lowesbv v. Warder, 2 Cox's C.i. 2(». 1 Sim. & Stii. 3-5. 4 Hon. & Munf. 50i. [a] iJnire v. Allen. 1 Mad. Ilep. 5.i(i. li| Dyson v. Benson, Coop. Oa. 110 : Bm-rall v. Rainetaiix, 2 Paige, S31. 2 Bvo. C. K. -l-t. 10 Ves. til. (C) .Milf. Eq. PI. 208. (d) Id. ib. 2 P. Wins. 288. (e) Tompkin v. Lethbridge, 9 Ves. 169. (/) i Dan. 81. notice, to ,an order from a judge, that the same be filed within a time to be speci- lied in the order, or bb deemed abandoned. (Code, § 416.) It may be fi.led with the clerk of the county where the action is triable. But it is not necessary to tile it, unless the defendant is compelled by an order of the court. (Van Saut. Eq. Pr. 194.) Where a party files a pleading in obedience to an order under the above section, he is not bound to notify the party obtaining the order that the pleading is filed. (Duoy V. Mart, 1 Code Rep., N". S. 286.) In OIno, a demun-er by the defendant must be filed on or before the third Satur- day, and a demurrer by the plaintiff on or before the fifth Saturday, after the return day of the summons or service by publication. (Code, § 103.) In .the Equity courts of the Unitc^ States, a defendant may, at any time before the bill is taken as confessed, or afterwards with the leave of the court, demur t" the bill. (Rule Si of Bfiuity Rules.) 243 Chap. 6.] PROCEEDIXGS TO A DECREE. J ] Q coupled with an answer, will be irregular ; and in such a case the proper course is to move that the demurrer and answer be taken off the file, and not that the demui'i'er be overruled, {g) Service o/.] The demurrer having been filed in the proper office, a copy is to be served upon the complainant or his solicitor. (20) i.g) Curzon v. De la Zouoh, 1 Swanst. 193. 2 Dan. Pi-. SI. (20) A copy of the demurrer must be served within twenty days after the ser- vice of a copy of the complaint, (unless the time to demur has been extended.) if there has been personal service of the complaint, or forty days if service has been by mail. (Code, §J 143, 412.) "When a demun-er is regularly seived, in proper time, so that the only question is one ot sufficiency, it cannot although defective, be treated- as a nullity. (Stroiit v. Curran, 7 How. Pr. 36 ; Hartness v. Bennett, 3 id. 289 ; Bergmaii v. Howell, 3 Ab. 329 ; Spencer v. Tooker, 12 id. 3.53 ; Boss v. Longmuir, 15 id. 328 ; Chaclwicli v. Snedilcer, 2(5 How. 60.) The time specified in section 143 of the Code, for demuiTing, may be extended. But the only methods of procuring an extension are by consent, or by an order of the court, founded on an affidavit of merits. {Piatt v. Townsend, 3 Ab. 9 ; S. C. 2 I>uer, 608; McGown v. Leavenworth, 2 E. D. Smith, 24; Wail's Code, 232.) Under section 405 of the Code, the time may be enlarged, uptm an affidavit slio-\v- ing grounds therefor, by a judge of the court, or a county judge. The affidavit, or a copy thereof, must be served Tvith a copy of the order, or the order may be disre- garded. Eule 30 of the Supreme Court provides that no order extending the time to answer or demur to a complaint shall be granted, unless the party applying for .-iuch order shall present to the justice or judge an affida^dt of merits, or proof that it has been filed, or an affidavit of the att(n-ney or counsel retained to defend the action, that from the statement of the case in the aoticm, made to him by the de- fandant, he verily believes that the defendant has a good and substantial defence, upon the merits, to the cause of action set forth in the complaint, or to some part thereof, and the affidavit must state whether any extension of time to answer or de- mur has been granted by stipulation or order. Eule 31 directs that if any application for an order be made to any judge or justice, and such (u-der-be refused in whole or in part, or be granted conditionally, or on terms, no subsequent applicati(m, upon the same state of facts, sliall be made to any other judge or justice ; and if, upon such subsequent application, any order b-e made, it shall be revoked. An order extending the time to answer, also extends the time to demur. (Broadhead V. Broadhead, 4 How. Pr. 308; S. 0. 3 Code Rep. 8; contra, Davenport v. Sniffen, 1 Barb. 223.) But an order extending the time to answer or demur, unsupported by an affidavit of merits, or an affidavit of the attorney or counsel retained to de- fend, that from the statement ol' the case, in the action, made to him by the defen- dant he verily believes that the defendant has a good and substantial defence on the merits, &a., may be disregarded. {Ellis v. Van Nees, 14 How. Pr. 313.) And if an extension of the time has been obtained, by order or by consent of parties, that feet must be stilted in the affidavit on which application is made. Eule 30 and sec- tion 405 of the Code operate together, and fnllefi'ect must be given to both. (lb.) An order extending the time to answer supersedes a prior motion noticed to strike out portions of the c(miplaint, -where there is no reservation in the order of the right to make such motion. {Marry v. James, 34 How. 238.) Such an order operates as a waiver of all objections to the complaint, by the party obtaining it, and as a bar to a i'uture motion for anj' alteration of the complaint; unless the right to malce such motion is reserved. So where the extension is granted by the adverse party. {Botoman v. Sheldon, 5 Sandf. (i.")7; S. C. 10 N. T. Leg. Obs. 339.) ^Wheu proceedings are stayed until the decision of an appeal, such stay does not extend the time to answer beyond the time when the appeal is decided. {Petrie v. Fitzgerald, 2 Ab., >r. S. 354.) After the decision on the appeal, it is irregular for the defendant to apply ex j)«c.) In Indiana, a demuiTer may be withdrawn at any time before judgment upon it is recorded. (Biok. Civ. Pr. 100; 7 Bid. 371.) Aud, by leave of the court, a de- murrer maj'' be withdrawn, and the pleading demurred to may be answered at any time before entering upon the trial. (lb. ; 7 Ind. Rep. 490 ; 9 id. 189 ; 10 id. 199.) (23) Issues both of law and fact raa,j arise upon difl'erent parts of the proceeding.? lu the same action. In such cases the issues of law must be first tried, unless the court otherwise direct (Code, § 251.) An issue of law must be tried by the court, unless it be refen'ed, as provided in sections 270 aud 271 of the Code. (Code, § 253.) The argument of a demurrer may be brouglit on at any special term in the dis- trict, or at a .special term in a ooulity adjoining that in which it is triable, though in another district ; except that when the action is triable in the 1st judicial district, the motion must be made there. {Bobh v. Jewell, 6 How. Pr 276.) Issues of law must be tried at a circuit court,or special term, and shall, unless the court shall other- wise direct, have preference on the calendar. (Code, § 255.) In a case where there are issues both of law and fact, and the cause is brought on for trial of the issues of fact, the court will then determine whether it shall be tried before the issue of law is disposed of. If no objection is made, it will be teemed to have been tried first by the order of the comt. ( Warner v. Wiqers, 'i Sandf 635. See also. Fry v. Bennett, 9 Ab. 45 ; S. C. 2 Bosw. 200 ; 28 N". Y. 324.) "When there arc issues both of law aud fact, no judgment for costs can be entered in favor of the pai'ty who prevails upon the issue of law, until the issue of fact is disposed of. Such a judgment, if rendered, would be irregular, and would be set aside on motion. (Masters v. Barnard, 6 How. Pr. 114 ; S. 0. 1 Code Eep., Jf. S. 407.) The plaintiff on demurring to part of an answer, may put the cause on the calendar for trial of issues of fact, without waiting for the decision upon the issues of law. (Palmer v. Smedley, 13 Ab. 185.) By rule 49 of the Supreme Court, enumerated motions must be noticed for the first dajf of the term, by either party. The papers to be furnished on such motions shall be a copy of the pleadings, when the question arises on the pleadings, or any part thoreofj or of such part only as relate to the question raised by the demurrer. In oases of demuiTer, the papers shall be furnished by the party den urring. (lb.) In case of his neglect to furnish the papers, the opposite party may move, on affi- davit and notice, that the cause be struck from the calendar (whichever party may have noticed it for argument), and that judgment be rendered in his favor. (lb.) Each party must prefix to his points a concise statement of the facts of the case, with reference to the folios ; otherwise no discussion of the facts by him will be permitted. (lb.) Rule 42 (new rule 49,) does not i-eqnire the party demurring to sei-Ve on the opposite party any copy of the pleadings or other papers, when the questicm tolbe decided arises on demurrer. The party deamrring is required to fur- nish them to the court, but not to serve them on the opposite party. (Gallt v. Finch, 24 How. Pr..il93.) In /yidjffljMl, a plaintiff cannot have finaljudgment until the issues of law and factare both determined in his favor. (Bick. Civ. Pr. 101 ; 4 Bid. 505; 5 id. 443 : 5 id. 469.) The Supreme Court has decided that the issues of law must always be disposed of first, (lb. ; 5 Ind. Hep. 506 ; 17 id. 223.) Also, that where a cause is submitted to the court for trial, it-will be presumed that a general finding included a determination of an issue of law undisposed of. (lb. : 14 Ind. 523.) In California, when a demurrer is filed to the answer, it is irregular for the plain- tiff' to take judgment before some disposition is made of the demuiTer, (Huse v. 245 21]^ PROCEEDINGS TO A DECREE. [Book I. Amending demurrer.] Where it has appeared, upon the hearing of a cleIn^;r^er to the whole bill, that the defendant is entitled to demur to some part only, the court has permitted the demurrer to be amended, so as to confine it to the parts to which the defendeut has a right to demur, (o) In such cases, however, the most usual course is to over- rule the demurrer and to give the defendant leave to put in a new de- murrer to such part of the bill as he may be advised, {p) Effect of allowing demurrer.'] On a demurrer to the whole bill being allowed, the cause is out ot court, and no subsequent proceedings can be taken therein, {q) But the allowance of a partial demurrer is not at- tended with such a consequence. The bill, or that part of it, which was not covered by the demurrer, still remains in court, and the complainant may obtain an order to amend, or to refer the answer upon exceptions, or adopt any other proceedings in the cause, in the same manner that he might have done had there been no demurrer. ('■) (24) A demurrer being frequently on matter of form, is not, in general, a bar to a new bill ; but if the court, on demurrer, has clearly decided [ *113 ] *upon the merits of the question between the parties, the de- cision may be pleaded in another suit, (s) Effect of overriding a demurrer.] If the demurrer is overruled as frivolous, the complainant may have an order to take the bill as con- fesses), or he may compel the defendant to answer the bill, at his elec- tion, (t) A frivolous demurrer or plea to a bill for the foreclosure of a mort- (o) Gleerg V. LcRh. 4 Mml. 193. (p) 2 Dan. 87. (q) Smith v. Biunes, 1 Dick. 67. WatluD.s v. Bush, 2 id. 701. r>-; Mitf. Eq. PI. 2U. rs; Mitf. JEq. PI. 214. (t)Rnlei.9 Moore, 20 Cal. 15 ; Calderwood v. Tevis, 23 id. 335 ;) as the demurrer must be dis- posed of before the issue of fact is tried, {Ellis v. Loumier, 1 Mo. 260,) aud before judgment on the merits oau be rendered. (Manifee v. D'Lashnut, id. 258.) But if no objection is made at the time of trial, it is not such an irregularity as entitles the plaintiff to a new trial. {Calderwood v. Tet'is, supra.) (24) After the decision of a demurrer, either at a general or special term, tlie court may, in its discretion, if it appear that the demurrer was interposed in good faith, allow the party to plead over, upon such terms as may be just. (Code ot Sew York, ? 172; Code of Ohio, § 136.) If the demurrer be allowed for the reason that several causes of action have been improperly united, the court may, in its discretion, aud upon such terms as may 1 e just, order the action to be divided into as many actions as may be necessary to the proper determination of the causes of action therein menti(med. (lb. ; Code of Ohio, 5 90 ; Code of Kansas, 5 99.) The last paragraph of sec. 172 of the Code applies to actions specified, sec. 167 ; that is to say, if the plaintiff has united in his complaint a cause of acticm in one class, with a cause of action in another class, the court may, in its discretion, order the action to be divided into as many actions as may be necessary. {Eohinson v. Judd, 9 How. Pr. 378, 383. See Alger v. Scoville, 6 id. 131 ; S. C. 1 Code Kep., X. S. 303 ; Lord v. Vreeland, 13 Ab. 195 ; S. C. 15 id. 122 ; 24 How. 316.) 246 Cliap. 6.] PROCEEDINGS TO A DECREE. |22 gage may be noticed for argument as frivolous, by the complainant, on any motion day as well as in term ; and the complainant may thereupon move for a final decree in the cause as upon a bill taken as confessed, {u) But to entitle the complainant to such a decree, he unist give special notice to the defendant that he intends to move for an order to over- rule the plea or demur'-er as frivolous, and to take the bill as confessed, and for a final decree thereon, {y) (35) ('u^ Bowmau V. Mai-shall, 9 I'aige, 78. (v)l<\.. lb. (25) Frivolous demurrer. If a demurrer, answer or reply be frivolous, the party prejudiced thereby may, upon a previous notice of five days, apply to a judge of the court, either in or out of the court, for judgment thereon; aud judgment may be given accordingly. (Code, § 247.) A frivolous pleading is one which, if true, does not contain any defence to any part of the plaiutift's cause of action ; and its insufficiency as a defence must be so glar- ing that the court can determine it upon bare inspection, without argument. (Nichols V. Jones, 6 How. Pr. 655, 658.) The rule is that the court will not strike out a demurrer as frivolous, unless it clearij^ appears to be taken for the mere purpose of delay, or unless the grounds taken in it are eleai'ly untenable. The court must be able to determine the fact upon a bare inspection. (Sixpenny Savings Bank v. Sloan, 12 How. Pr. 544; Seeker V. Mitchell, 5 Ab. 453, 455. See also Lejferts v. Snediker, 1 Ab. 41; Leach x. lioynton, 3 id. 3 ; Brown v. Jenison, 3 Sandf. 732 ; Struver v. Ocean Ins. Co. 2 Hilt. 475 ; S. C. 9 Ab. 23 ; Smith v. Mead, 14 id. 262. A decision in point, adverse to the sufficiency of a pleading, is good ground for treating it as frivolous. (People v. Ma- Cumber, 15 How. Pr. 166, 192 ; S. C. 27 Barb. 632 ; 18 IJ". T. 315 ; Bank of Wilming- ton V. Barnes, 4 Ab. 227 ; Strong v. Stevens, 4 Duer, 668.) The court will not give judgment on a denrarrer as irivolous, unless it appears to have beeu taken for delay merely, or unless the grounds of demuiTer, as set 'forth, are clearly untenable. ( Van Sant. Eq. Pr. 196 ; 1 Mimell Pr. 2d ed. 554 ; Acome v. Am. Mill. Co. 11 How. Pr. 27; Sixpenny Savings Bank v. Sloan, 12 id. 543; S. 0. 2 Ab. 214.) "When a demurrer legitimately comes within section 144 of the Code, the plaintiff cannot treat it as a nullity, and enter judgment for want of an answer, upon the ground that the demurrer is clearly frivolous. That question the defendant has a right to submit to the court for its judgment. (Swift v. DeWitt, 3 How. Pr. 2S0.) It is generally considered that where the questicm raised by the demurrer fairly admits of argument, it will not be adjudged to be frivolous, but the plaintiff will be left to the usual course of bringing on the demurrer for trial as an issue. Though it has been held that when there is a decision directly in point against the demurrer, it is untenable, and will be adjudged to be irivolous. (lb.) It is not necessai'y to serve an affidavit on the opposite party, with notice of mo- tion for judgment under this section oi the Code. (Darrow v. Miller, 5 How. Pr. 250; S. C. 3 Code Rep. 241.) Where the notice of motion is, to strike out the answer ou the ground of the frivolousness thereof, " or for such other or further order as the said justice shall deem proper to grant," judgment cannot be given under secticm 247. In no case do the words "rule or order," as used in the Code, mean a judg- ment. (Darrow v. Miller, supra. See also Bae v. Wash. Mu. Ins. Co. 1 Code itep., J>(. S. 185.) A judge at chambers has the same power as at special terra, and may make either an absolute or a conditicmal order for judgment on account of the frivolousnes;" of a pleading. (Witherspoon \. Van Dolar, lb B.t>-v. Pr. 266 ; IVitherhead w . Allen , 2S iJLLrb. 661 ; S. C. rev'd. 33 How. 6:^0, n. svb nom. Weatherhead v. Allen.) Where judgment is ordered for the plaintiff on a frivolous answer or demurrer, he takes judgment in the same manner as if no answer or demurrer had been put in, where there is no other issue. (King v. Stafford, 5 How. Pr. 30 ; Saltus v. Kipp, 5 ].>uer, 646; S. C. 2 Ab. 382 ; 12 How. Pr. 342; Aymar v. Chase, 1 Code Eep., K. S. 141.) The defendant is entitled to notice of such application for judgment. (Saltus v. Kipp, supra.) Wiiere it appears, on demuiTer that the complaint is so defective that it cannot be amended so as to enable the plaiutiff' to recover, the del'endant is entitled to judg- 247 1]2 PROCEEDINGS TO A DECJiME. [Book I. Whenever a demurrer is overruled for any other cause than as being frivolous, (e. g. upon the merits,) no other demurrer will be received (26) and the defendant must answer the bill and pay the costs of the nient absolute, on his demurrer. (^Snow v. Fourth National Bank of New York, 7 Kob. 480.) The decision of a ."notion granting a judgment on the ground of the frivolousness of a demuiTer under section 247 of the Code, and allowing the defendant time to answer, i.? not an order, but a judgment ; and must be appealed from as a judgment, and not as an order. {King v. Stafford, .5 How. Pr. 30 ; Bentley v. Jones, 4 id. .335 ; S. C. 3 Code Eep. 37; Roberts Y.Morrison, 7 How. Pr. 396; S. C. 11 N. T. Leg. Obs. 61 ; Bruce v. Pinckney, 8 How. Pr. 397; Lewis V. Acker, id. 414 ; Bauman v. N. Y. Cen. B. E. Co. 10 id. 218 ; WeatTierhead v. Allen, 28 Barb. 663. See also, Bar- risY. Bammond, ]8 How. 123; Lee v. Ainslee, 1 Hilt. 277.) The court will sometimes, upon overruling a demurrer as frivolous — especially where it appears to have been put in in good faith, permit the defendant to answer the complaint upon payment of costs. But the good faith of the demurrer must be manifest; for if it was put in for delay, no such indulgence will be granted. (Mo- nell Pr. 2d ed. 555. Tan Sant. Eq. Pr. 197.) Leave will not be gi-anted without an affidavit of merits (Appleby v. Mlkins, 2 Saudf 673 ; S. C. 3 Code Rep. 206.) An order rendering judgment on a deurarrer as fiivolous will not be reversed un- less the eom-t is of the opinion that the demuiTer would be sustained (m argu- ment. It will not be reversed merely because the court may think it is not frivolous. ( Wesley v. Bennett, 6 Duer, 688 ; S. C. 5 Ab. 498 ; Gristeold v. Loverly, 1 IST. T. Leg. Obs. 316; Witherhead Y.Allen, 28 Barb. 661, 668; Martin v. .ffjioiwe, 2 Ab. 327 ; S. C. 11 How. Pr. 567.) In The East Uiver Bank v. Bogers, (7 Busw. 494.) however, it was held that on appeal from ajudgment rendered against a defendant on account of the frivolousness ol his answer, the question is, whether the judgment is right on the merits of the case made by the pleadings, and not whether the answer is frivolous. And in Aitken v. Clark, (15 Ab. 319,) it was held that it is not sufficient to sustain a judgment on an answer as frivolous, that such answer would probably be held bad on demurrer. In Indiana, it is provided by statute that all frivolous demun'ers shall be overniled. (2 Rev. Stat. 44, sec. 77.) In JViseonsin, if a demurrer be frivolous, the party prejudiced thereby, upon a previous notice of five days, may apply to a judge of the court, either in or out of the court, for judgment thereon, and judgment may be given accordingly. (Rev. Stat, of 1858, p. 7.57, 5 28.) (26) Where some of the defendants demur, and the demurrer is oveiTuled, with liberty to answer in twenty days, on payment of costs, and (m appeal such decision is aifii'med by the general term, then, admitting that such defendants have the same time to answer after the general term decision, which was given them by the order overruling the demurrer, the answer must be tendered within twenty days after the judgment of affirmance, although the costs of the demurrer have not been adjusted, or the right to answer is lo.st. (Ford y. David, I Bos w. 569. But see2 "VVend. 293.) ■When an order overruling a demurrer requires the defendant to put in his answer in a specified time, and pay the costs, or that the bill be taken as confessed against him, a subsequent ex parte order extending the time to answer is irregular. i the court obtained upon notice, and an affidavit of no design to delay; and upou terms. (Rule 29 of Equity Rules ) (28) CoTisequences of omitting to demur. If no objection to the complaint is taken either by demurrer or -answer, the defendant will be deemed to have waived the same ; excepting only the objection to the jmisdiction of the court, and the ob- jection that the complaint does not state facts sufficient to constitute a cause of ac- tion. (Code of New Tork, $ 148 ; Code of Ohio, § 89 ; of Kansas, § 98 ; of Kcn- iuclcy, j 123 ; of Wisconsin, § 53 ; of Minnesota, § LXV.) This means that if the objection be not taken by demurrer, when that mode is proper, or by answer when that is the appropriate method, it is waived. (Zabriskie v. Smith, 13 Is. Y. 322.) When the objection appears on the face of the complaint, it must be taken by de- murrer. "When it does not so appear, it must be taken by answer. If not taken by eitlier method, it will be waived, {'freynper v. Conklin, 44 Barb. 456 ; Loescldgk v. Addison, 19 Ab. 169 ; S. C. 3 Bob. 331 ; Palmer v. Davis, 28 N. T. 242 ; Hosley v. Black, id. 438 ; S. C. 26 How. 97 ; Merritt v. Walsh, 32 N". Y. 685 ; Donnell v. Walsh, 3.1 id. 43; 6 Bosw. 621 ; Lee v. Wilkes. 'iy How. 336; S. C.»l9Ab. 355; Blossom v. Barrett, 37 j!i. T. 434 ; Zabriskie v. Smith, 13 ]!!. Y. 336 ; Wait's Code, 240.) 251 114 PEOCEEDIKOS TO A DBCEEE. [Book I. Tho objection of defect of parties must be talten by demurrer or by answer, or it ■will be waived. {Palmer v. Davis, 28 Jf. T. 242 ; DePuy v. Strong, 37 id, 372 ; S. C. 3 Kcyes, 603 ; 4 Ah., N. S. 340 ; Fosr/ate v. Herkimer Manuf. an. f~ l\Q PROCEEDIIS'GS TO A DECREE. [Book I. cree. (a) And this is doubtless for the reason that for many purposes, a plea is considered a special answer. (J) (33) The plea being filed, a copy must be served on the complainant or his solicitor. Replication to plea.} The complainant has ten days after notice of the plea being filed, to file a replication thereto or to amend his bill. If he does not take issue on the plea, or amend his bill within that time, either party may notice the plea for argument at the next, or any sub- sequent, term, (c) If the complainant, without argument, thinks the plea, though good in form and substance, not true in point of fact, he may take issue upon it by filing a replication, and proceed to examine witnesses, as in the case of an answer, to disprove the facts upon which it is endeavored to be supported, {d) The effect of filing a replication to a plea is, that the complainant admits the plea to be good ; and its truth is the only mat- ter in question, (e) When issue is thus taken upon the plea, the defen- dant must prove the facts it sets up. (/) If he succeeds in proving the truth of the matter pleaded, the suit, so far as the plea extends, is barred, {g) A replication puts in issue nothing except what is distinctly averred in the x>lea. {h) [ *120 ] * Amendment of Mil after plea.} If the complainant amends his bill, under the 47th rule, it will be considered as an admission of the validity of the plea, as if the same had been allowed on argument. It has been held that if the complainant, after a plea has been filed, amends his bill, thereby allowing the plea to be good, the defendant will be entitled to the same time to answer, as he would have upon an original bill ; the amended bill, in such a case, standing in the place of a new bill — the amendment being permitted only to save expense, {i) "Where, after a plea had been set down for hearing, the complainant obtained and served an order to amend his bill, and when the plea came on to be heard did not appear, the plea was allowed with costs ; the lord chancellor saying that he much doubted Avhether an order to amend, without more, would strike the plea off the record, (k) (a) Ifl. ib. 2 Dan. 218. 3 Paigo. 566. (h) See Heart v. Corning, 3 Paige, 566. (cj Kiile il. rdj Mitr. Jiq. PI. 301, 2. Ce^ Irl. ib. Free, in Ch. 58. Harris v. Ingledew. 3 P. Wms. 95. Uaiiiels v. Taggarfs ailni'r, 1 GiM & John. 311. C/J 5108. 73. 2 Vo3. 247. Ord v. Huddleston, Uick. 510. CgJ Wiclialse v. Short, 3 Bro. P. G. 558. lUnde. 225. 1 Gill & John. 311. JTish v. Jliller, 5 Paige, 20. IJogardns v. Trinity Church, 4 Paige, 178. ChJ Fish v. Wilier, .1 Paige, 26. Ci) Spencer v. Bi-pan. 9 Ves. 231. fj!j Jennings v. Pearce, 1 Ves. juu. 44'\ (.3.3) The practice in relation to putting in a plea after the defendant is in contempt for want of an an.swer, is said to be oon-ectly stated above. (Per Chancellor Wal- worth, in fVallis v. Talmage, 10 Paige, 444.) 260 Chap. 6.] PROCEEDINGS rO A DECREE. ^20 WUhdraivmg 2]lea.] If a defendant, after a plea has been set down, should not Avish to argue it, he may apply for liberty to Avithdraw his ' plea, ou payment of taxed costs.(Z) Thus, where a plea has offered a substantial defence, hut has been so informally pleaded that it would be diflicult or impossible to amend it, the court has given the deleudant leave to withdraw it, and plead de novo, (ni) Argument of 2)lea.'\ The proceedings upon the argument of a plea are nearly the same, mutaiis mictandis, as those upon the argument of a demurrer; which have been already referred to. It may be observed, in addition to what has been stated, that if a plea is supported by an answer, upon the argument of the plea, the answer may be read to coun- terprove the plea; and, if the defendant appears not to have sufficient- ly supported his plea by his answer, the plea must be overruled and or- dered to stand for an answer only, (n) And where a defendant had answered to an original bill, which was afterwards amended, where- upon the defendant put in a plea to the amended bill, the complain- ant was permitted to read the answer to the original bill, to counter- prove the plea to the amended bill, (o) Upon the argument of a plea, every fact stated in the bill, and not denied by the averments in the plea and by the answer in support of the plea, must be taken as true. Qj) *H a plea be set down for argument by the complainant, [*121 J without replying to it, the matter contained in it must be considered as true, (q) Where issue is taken upon a plea, and the truth of such plea is estab- lished by the proofs, the bill must be dismissed ; as the court, in that stage of the proceedings, does not inquire or decide as to the validity of the matters pleaded, as a defence to the suit, (r) A plea, upon argument, may be either allowed simply; or the benefit of it may be saved to the hearing; or it may be ordered to stand for an answer; or it may be overruled. The effect of each of these judgments will now be stated. Uffect of allowing plea.] If, upon argument, a plea is allowed, it is thereby determined to be a full bar to so much of the bill as it covers, if the matter pleaded, with the averments necessary to support it, be true. If, therefore, the plea is allowed, the complainant may, within ten days after notice of such allowance, take issue on the plea (by rmJ^Nobkissen V. Hastings, 2 Ves. jim. 81. Watkins v. Stone, 2 Sim. & Stn. 5G0. (n) Mitf. Eq. PI. 30-1. 3 Atk. 304. (o) Hildyai-il v. Cressy, 3 Atk. 301 rp; Bueardiis V. Trinity Cliiii-ch, 4 Paige. Ii8. (q) Ex°-s or Gallagliei- v. Itobeits, 1 Wadli. C. C. Rep. 320. (r) Uows V. Micliiiel, G Paige, 13». ibi. 121 PROCEEDINGS TO A DECREE. [Book I. replying to it) on payment of the costs of the hearing there- 'ijjon. (s) If the comphiinant files a replication to the plea, within the ten days after notice of its allowance, the defendant will be obliged to prove the truth of the facts set np in the plea. (/) If the complainant omits to file a replication in such a case, not only the validity of the plea as a bar is admitted, but the truth of the facts set up in it ; and of course the suit is at an end. If the plea has been replied to, the complainant may, if he pleases, go into evidence to disprove it; and if he has, in his bill, alleged any mat- ter which, if true, may have the effect of avoiding the plea, such as no- tice, fraud, &c., he may examine any witnesses he may have, to support his allegation. And where the plea introduces matter of a negative nature, such as denial of notice, fraud, &c., it will be necessary for him, in case sufficient is not admitted by the answer in support of the plea to show the existence of the notice or fraud, to go into evidence in support of the afiirmative of the proposition, {u) When a plea is allowed, it is considered as a full answer; and an in- junction obtained until answer will be dissolved upon application, as a matter of course, {y) Saving the lenefit of a^j/ea, to the hearing.] It sometimes happens that uiDon the argument of a plea, the court considers that although [ *122 ] so *far as then appears, it may be a good defence, yet there may be matter disclosed in evidence, which, supposing the matter l)leaded to be strictly true, would avoid it. In such a case the court, iu order that it may not preclude the question by allowing the plea, directs that the benefit of it shall be saved to the defendant at the hearing, (w)) Thus in the case of Heartt v. C9rning,(x) a plea of settled partnership accounts was held to be well pleaded ; but as facts migiit be disclosed justifying a decree to surcharge and falsify, the benefit of it was saved until the hearing. To have allowed it, simply, would have made it a conclusive bar. The effect of an order for this purpose is to give the complainant an opportunity of replying and going into evidence, without over- ruling the plea, {y) When the benefit of the plea is reserved to the hearing, such part of the bill as is covered by the plea is not to be answered, {z) (s) liule 47. (i) See Mitf. 302. (u) Evre v. Dolpliin. 2 Ball & It. 303. Saunclevs v. Leslie, id. 515. ^r; Phillips V. LMiifrlKini, 1 Dirk. IIS. (w) Mitf. Kc|. n. 30a. Sec A~tley v. Fouiitnine. Fincli, 4. (xj 'i raige, 572. (yj bee Ciiotli v. Jackson, 6 Ves. 12, 18. (z) For. Eom, 64. 202 Chap. C] PROCEEDJj\'GS TO A DECREE. J02 Neither party recovers costs on the argument of a plea where the benefit of it is saved to the defendant until the hearing, (a) Ordering a plea to stand for an ansioer.] "When a plea is allowed to stand for an answer, it is determined that it contains matter which, if put in the form of an answer, would have constituted a valid de- fence to some material part of the matters to which it is pleaded as a bar, but that it is not a full defence to the whole matter which it professes to cover, or that it is informally pleaded, or is improp- erly offered as a defence by way of plea, or that it is not properly supported by answer, {h) But a plea which sets up no valid de- fence to any part of the matter it professes to cover, will not be per- mitted to stand for an answer. If a plea to the whole bill, unaccom- panied by an answer, is allowed to stand for an answer, without reserving to the complaiuant the right to except, it is to be deemed a full answer, though not necessarily a perfect defence, (c) But where a plea is ordered to stand for an answer with liberty to except, or the plea is accompanied by an auswer, which will enable the com- plainant to except without special leave, the master, upon a reference of the exceptions, must decide as to the sufficiency of the answer, considering the plea as a part thereof, {d) Whei'e a plea is ordered to stand for an answer, without its being *mentioned in the order whether the complainant may ex- [ *123 ] cept, he will not be allowed to except; because by the terms " for an answer" in the order, a sufficient answer is meant — an insufficient auswer being no auswer. (e) And liberty to except is sometimes qualified so as to protect the de- fendant from any particular discovery which he ought not to be called upon to make. (/) When a plea has been ordered to stand for an answer, with liberty to except, the complainant must proceed to deliver his exceptions within the usual time allowed for excepting to an answer; ((/) otherwise the answer will be deemed sufficient. (Ii) Costs.} When a plea is ordered to stand for an answer, the com- plainant is entitled to the usual costs of overruling a plea. ((') Overruling plea.] If upon argument the court is of opinion that the plea cannot, under any circumstances, be made use of as a defence, it is simply overruled, and the complainant may proceed to have his Ca) Heavtt v. Corning, 3 P.iipre. 5flH. (b) Orentt u. Orras :i Pai.tre, 4S1. Mitf. 303. Lube's Ev. I'l. 46. Cc; III. 4,59. .Mitf. 304. (dj hi. ih. Ce) .Selliin v. Lewon, 3 P. Wins. 230 '/; Bimb ■ii;S '.! Atk. -240. 3 P. \Viiis. 315. 4 Hro. C. (J. 130. Ves. .WO. (gj 8eL' Ridu 00. (h.: Iilum. CO llowiiiis v. JJutlei-, 2 Mad. 245. •2G3 123 PROCEEDINGS TO A DECREE. [Book I. costs taxed, and to issue process for the recovery of them. He may also, if the plea has been to the ■whole bill, and the defendant's time for answering has expired, issue an attachment for want of an answer, (Jo) unless the defendant has obtained either from a master or from the court at the hearing, (/) an extension of time to answer. In such case the attachment miist not be issued till the extended time for answer- ing has expired. Overruling plea as frivolous.] If a plea is overruled as frivolous, or, upon issue taken thereon, is found to be untrue, the complainant may have an order to take the bill as confessed ; or he may compel the de^ fendant to answer, at his election, (m) A frivolous plea may be noticed for argument as frivolous by the complainant, on any motion day, as well as in term; and the complainant may thereupon move for a final decree in the cause, as upon a bill taken as confessed, (m) But to en- title the complainant to such a decree, he must give special notice to the defendant that he intends to move for an order to overrule the plea as frivolous, and to take the bill as confessed, and for a final decree thereon, (o) Whenever a plea is overruled for any other cause than as being friv- [ *124 ] *olous, (e. g. upon the merits,) no other plea will be receivjd; and the defendant must answer the bill and pay the costs of the hearing, within twenty days after notice of the order overruling the plea, or such other time as may be prescribed by the court, in such order. If he fails to put in his answer and pay the costs within the time prescribed, the bill may be taken as confessed, and the matter thereof decreed accord- ingly ; or the complainant may have an attachment to compel an an- swer. (7j) After a plea has been overruled, the defendant cannot have an ex parte order for further time to answer, beyond the time allowed by the order overrviling the plea, (q) The 49th rule is not applicable to the case of a plea to a part of the bill only and an answer to the residue. In such a case, if the plea to a part of the bill is overruled, the com jolainant must except to the answer already put in, for insufficiency when he wishes to obtain a further answer to the part of the bill which ivas attempted to be covered by the plea, (r) As no other plea or a demurrer can be received after a plea has been overruled, the only effect of overruling .it is to oblige the defendaiu (IJ Waterton v. Croft, 6 Sim. 43S. (7;j Himlc, iu. (m) Kulu 4'J. ,-„; Howm';in V. M.irsh.-iU, 9 Paige, 73. (o)M. lb. (2J)\i\\\am. (n who is made a witness by the opposite party, is entitled to fees as a condition of his attend- ance, the same as other witnesses. {Hewlett v. Brown, 1 Bosw. 655; S. C. 7 Ab. 74 ; fVoods v. DeFiganiere, 1 Rob. 607, 641; S. C. 25 How. 522; 16 Ab. 1; Draper V. Henningsen, 1 Bosw. 611 ; Taggard v. Gardner, 2 Sandf. G69 ; S. C. 2 Code It. 82.) A party to an action may, at the instance of an adverse partj^, be compelled, by the process of subpoena, duces tecum, not only to appear at the trial and submit to a personal examination, but to produce papers and books in his possession precisely as any other witness may be so compelled. And a witness, when properly subpoenaed, is as nmoh bound to produce books and papers in his possession, as evidence, as to testify orally; and his neglect of either is a contempt of court. (Bonesteel v. I-yude, 8 How. Pr. 226; S. C. id. 352. See also, Garighe v. Laroche, 6 Ab. 284, n. ; S. C. 1 Kob. 659. Brett v. Bueknam, 32 Barb. 655.) Yet tiie president or other officer of a corporation which is a party to an action, is not bound to produce on th:) trial the books of the corporation under a subpoena duces tecum issued by the adverse party, he having no such properly in, or control over, them as gives the right or makes it his duty to produce them. Their proper place is the office in which the business is transacted to which they relate. {LaFargev. La Farge Insurance Co. 14 How. Pr. 26; S. C. 6 Duer, 680.) It is otherwise, however, with the officers of 277 Jgl PROCEEDINGS TO A DECREE. [Book I. an uuincorporatod joint stock company. (fFoorte v. De Fignniere. IP Ab. 159; S. C. 1 Kob. DoU.) Wbeu a corpora tiou is the defendant, tlie piaiutitt' oamiot liave an order for the examination of sueh defendaut as a witness, by its president and secretary. The 390t,h and 391st sections of the Code refer to the examination of parties, not of the ayeitts, officem, or servants of parties to a suit. It was not the intention of the legislature to antborize the examination of a corporation as a witness. {Gooclijear V. The I'hcenix Bnhber Company, 48 Barb. 52'2.) If a witness, without good excuse, neglects to obey a subpoena duces tecum, with which he is served, by failing to produce, upon the trial, the books or papers specified therein, he is liable to the injnred party for all damages sustained by him in conse- quence thereof {Hasbrouc/c v. Baker, 10 John. -^48; Lane v. Cole, 12 Barb. 6d0; Heermans t. Williams, 11 "Wend. 63(j ; Coggswell v. Meech, 12 id. 147 ; Courtney y. Maker, 3 Denio, 27.) A party cannot be examined as a witness, under seotiem 391, before issue joined, unless a case is made justifying an order for the taking of his testimony cle bene esse. {Bell V. liichmond, 50 Barb. 571 ; S. 0. 4 Ab., :S. S. 44 ; Norton v. Abbott, 28 How. 3-13. See Boche v. Furran, 12 N. T. Lesi. Obs. 121. Contra, McViekarr. Ch-eenleaf, 4 Uob. 657 ; S. C. 30 How. Pr. 61 ; 1 AbT, H" S. 452, sub nom. Mc Viclcar y. Jietchum; Fallerton v. Gaylord, 7 id. 551 ; Duffy v. Lynch, 3t) How. 509.) An order for the examination of the adverse party, under this section, is allowed as a matter of right, before trial, upon showing that the action is at issue, and that the applicant desires such examination as to matters material to the issue. (Cook v. Bid- well, 29 How. Pr. 4ci3 ; S. C. 17 Ab. 300 ; Fullerton v. (iaylord, 7 Bob. 552.) And it is error tt) deny the appUcaticm without good cause shown for uot permitting the ex- amination. (Green v. Wood, 15 How. Pr. 338; S. C. 6 Ab. 277.) On an application for the examiuation of the adverse party as a witness, the applicant must present au affidavit stating : 1st. The nature of the action and the plaintiflf's demand ; 2d. If tJie application be made by the defendant, then the nature of his defence; 3d. The name and residence of the proposed witness. (Greene v. Herder, 7 Rob. 455; S. C. 30 How. 210; 4 Rob. 655. See Van liensselaer v. Tubbs, 31 How. 193; Norton v. Abbott, 28 id. 388.) Upon such affidavit the party may apply for such an order as is mentioned in the Revised Statutes (2 R. S. 392, ^ 3), in relation to the conditional examiuation of witnesses ; and also for the summons provided for in J 10 of the same statute, (lb.) The order so obtained should be served upon the attorneys of all the parties who have appeared ; or, if the time for appearance has not yet expired, then upon all the adverse parties themselves who have not appeared. And the summons should also be served upon the proposed witnesses (io the same manaer as a sub- pcena, and the like amount of fees paid.) (lb.) If the proposed witness fails to appear, the party who has procured tlie ordei- and summons may, upon a proper affi- davit, obtain a wai-rant directing the sheriff to apprehend such witness and bring him before the judge ; or may, on a proper affidavit and uotice, have an order directing the pleading of the recreant witness to be strickeu out. (lb.) Service of a judge's cn'der, and of a notice to attend for examination in another state, is utterly void and iuefl'ectual for any purpose. The service must be within this state. (Appleton t. Appleton, 50 Barb. 488.) The limit of the examination of a pai'ty is discretionaay with the judge. It is in effect a cross-examination, and gov- erned by the same rules. (Plato v. Kelly, 16 Ab. 188.) The fact that a witne.ss, by giving testimony, may thereby render himself liable to a civil suit will not excuse him from testifying; nor, where the testimony is material, can he refuse to answer ou the ground that his testimony will tend to disgi'ace him. (Taylor v. Jennings, 7 Rob. 581.) If the witness reluses to answer a legal and pertinent question, it is the duty ot tlie judge to issue his wan'ant for the commitment of such witness. An order merely adjudging the witness to be in contempt is unauthorized by law, and for that reascui is uot appealable. (People ex rel. Valiente v. Bijckman, 24 How. Pr. 223.) To compel the attendance of a party as a witness, under section 392, a summous should be issued by the judge, such as was issued under the Revised Statutes (2 R. S. 393, J 10,) upon a conditional examination. (Van Rensselaer v. Tubbs, 31 How. 193 ; Garighe v. Laroehe, 14 id. 451 ; S. C. 6 Ab. 284, sub nom. Gariglw v. Laroche: Bleecker v. Carroll, 2 id. 82; Draper v. Senningsen, 1 Bosw. 614. Contra Tred v. Brown, 5 Ab. 418.) And his fees fur attending as a witness must be paid. (Taggurd v. Gardner, 2 Saudf. 669 ; S. C. 2 Code R. 8i ; Draper v. Henningsen, supra.) A party examines an adverse party under sections 390, 391 and 392, at his peril ; and whatever evidence is taken, before or at the trial, without objection, is ooiiipe- teut and may be used, notwithstanding the restriction in § 399. (Barry v. Guhin, 37 How. 310; Greene v. Herder, 7 Rob. 455, 461 ; S. C. 30 How. 210.) When a party calls an adverse party as a witness, he thereby represents him as de- 278 Chap. 6.] PROCEEDINGS TO A DECREE. \Z\ answer fully; (?•) (37) that is, he must answer the whole of the state- (r) Ciiyler v. Bogert, 3 Paige. 3S6. Hagthorp v. Hook, 1 Gill. & Jolm. 272. serving of credit, and is pi'ecluded from denying it by introducing evidence for the purpose of impeaoLiing liim, showing eitlier that his general character for truth is bud, or that he has previously made contradictory statements. {Pickard v. Collins, 2'.i Barb. 444; Barry v. G-alvin, 37 How. 310.) Yet the party calliug such witness may, by any pertinent evidence, show a fact to be otherwise than as testified to by him, and this may be done by proving admissions of the •n-itness. {PiclMrd v. Col- litis, supra; Parsons v. Snydain, 3 B. D. Siuith, 276; Ariiistrouq v. Clark, 2 Code Kep. 143 ; liemis v. Kyle, 5 Ab., N". S. 232 ; People v. SIceehaii, 49 IBarb. 217. ) Thus, ■where, on a question of fact, the plaintiff's aud defendant's testimony is entirely con* tradietory, a letter written by one of the parties previous to the commencement of the action, flatly coutradietiug his testimony, -will be decisive in ftivor of the other jjartjf. (Boyd v. Colt, 20 How. Pr. 384.) But if the plaintiff and defendant are both men of good character, aud of equal credibility, aud both are sworn and contra- dict each other upon a question of fact, so that then' evidence cannot bo reconciled, the case will be evenly balanced in the absence of other testimony, and the com- plaint will be dismissed. (Losee v. Morey, 57 Barb. 561.) "When a party makes himself a witness iu his own behalf, his credibility is not indorsed by the opposite party, and he may be contradicted or impeached the same as auj' other witness. (Forward v. Harris, 30 Barb. 338; Varotta v. Socarras, 8 Ab. 302.) In order to authorize the punishment of a party for contempt in refusing to be ex- amined-as a witness, under the above sections of the Code, it need not appear that the misconduct was calculated to, or did defeat, impair, impede or prejudice the rights or remedies of any partv. as required (2 R. S. 538, § 20) iu ordinary oases of contempt. ( Floods v. De Figaniere, 1 Rob. 607; S. 0. 16 Ab. 1 ; 25 How. Pr. 522.) Section ;J94 does not give the court the power to stay the party's proceedings in the action where he refuses or neglects to attend for examination before trial. {Appleton V. Appleton, 50 Barb. 486.) In Bennett v. Hall, (10 K. Y. Leg. Obs. 191,) a motion for au order to strike out the answer of a defendant for failure to attend was denied, where, after he was subpoenaed, and before the time fixed for his examination, he, in pursuance of a previous arrangement, sailed for California. Proceedings to punish for contempt, or to strike out a pleading, must be founded ou affidavits served on eight days' notice. {Hewlett v. Brown, i Bosw. 655 ; S. C. 7 Ab. 74. See Norton v. Abbott, 28 How. 388.) The service of a mere notice to at tend as a witness, without summons, and without payment of witnesses' fees, will not warrant the punishment for contempt of a party refusing to attend and testify. (lb.) A default iu not attending *nd submitting to an examination may be waived by the s-ubsequent acts of the adverse party in postponing the examination from time to time, or failing to attend. {Satterlee v. De Coineau, 7 Rob. 661; Gardiner v. Peter- son, 14 How. Pr. 518.) Section 397 of the Code " has had no force or application in any possible case since 1860." (Card v. Card, 39 N. Y. 321; S. 0. 7 Trans. App. 144.) Proceedings for the production and discovery of books and pa^yers are regulated by the bievised Statutes, (2 R. S. 199, §§ 30 to 36,) the Code of Procedure, (j 388,) and the Rules of the Court. (Rules 18 to 23.) Section 388 of thA Code is not a substitute for the provisions of the Revised Stat- utes ou the subject, but is auxiliary thereto. (G-ouldv. McCarty, 11 N". Y. 575; Morrison v. Sturges, 26 How. 177; Folktt v. Weed, 3 id. 303; Dole v. Fellows, 5 id. 451 ; Davis v. Dunham, 13 id. 425 ; Pindar v. Seaman, 33 Barb. 140.) The Code en- larges the remedy for obtaining of evidence ; and if a party satisfactorily establishes the lact that any document is in the possession, or under the control, of the adverse party relating to the merits of the prosecution or defence, the court may order its iaspection. (Case v. iJarato, 9 Bosw. 595.) Au application to obtain a discovery of books and papers is not an action. (Folic tt V. JVeed, 3 How. Pr. 303 : S. C. 1 Code Rep. 65.) (37) Lancaster v. Foors, 1 Ph. 251 ; Hare ou Disc. 225, 256; Thorpe v. Macau ley, 5 Mad. 218; Faulder v. Stuart, 11 Ves. 296; Mazaredo v. Maitland, 3 Mad 6(i ; Swinborne v. Nelson, 16 Beav. 416 ; Murray v. Coster, 4 Cowen, 640 ; 1 Dan. Oh. Pr. 733 ; Hill v. Crary, 2 English, 536. It may be taken as a general rule that if the charge in the bill embraces several particulars, the, answer should be in the di,) 4. Where execu- tors are defendants and the demand has become stale from the great (s) Bank of Utica v. Messereau, 7 Paige, 517. (i) Hare on Disc. 256. rwj IJolin. Ch. Kep. 63. 2 Paige. 59U. 1 Hayw. 168 .1 Root, S 10. (V) Id. ib. (w) 4 id. 205. ill a bill, a defendant will be held to a strict rule in answering. Ifot only his motives but his secret designs, his, "uuuttered thoughts," must be exposed. (Mechanics' Bank v. Levi/, 1 Edw. 316.) The 39th equity rule of the United States courts provides that " the rule that if the defendant submits to answer, he shall answer fully to all the matters of the bill, shall no longer apply, in oases where he might by plea, protect himself from such answer and discovery ; and the defendant shall be entitled, in all oases, by answer, to insist upon all matters of defence (not being matters of abatement, or to the charac- ter of the parties, or matters of form), in bar of or to the merits of the bill of which he may be 'entitled to avail himself by a plea in bar; and in such answer he shall not be compellable to answer any other matters than he would be compell- able to answer and discover upon fiUng a plea in bar, and an answer in suj)- port of such plea touching the matters set forth in the bill, to avoid or repel the bar or defence. Thus, for example, a bona fide purchaser, for a valuable considera- tion, without notice, may set up tbat defence by way of answer, instead of plea, and shall be entitled to the same protectio^n, and shall not be cumpellable to make any further answer or discovery of his title than he would be in any answer in support of such plea." By the 54th Equity Rule., where no account, payment, conveyance, or other direct relief is sought against a party, not being an infant, such party, on the service of a subpcBua upim him, need not appear and answer the bill unless the plaintiflf speciallv requires him to do so by the prayer of his bill. But he may appear and answer a"t his option. If he does not appear and answer, he shall be bound by all the proceed- ings m the cause. If the plaiutitf 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. 280 Chap. 6.] PROCBEDIXGS TO A DECREE. 239 lapse of time; {x) 5. Where the answer of the defendant will subject him to a penalty; {y) 6. Where the defendant is a judgment creditor, and the bill is filed by a subsequent purchaser, and seeks to impeach the consideration or validity of the judgment ; (2) 7. AVhere a defence is set np which meets and controverts the complainant's title ; (a) 8. Where the bill is filed for an account of partnership transactions, and the defendant denies the partnership ; (^>) 9. Where the defendant is called upon to answer whether his transactions with third persons were usurious or not, at the instance of a creditor of that third person, who does not himself complain, or seek a discovery, especially if there is no charge of fraud; (c) 10. Where certain documents are set forth histori- cally, in the stating part of the bill, the defendant is not bound to an- swer to the facts contained or stated in such documents, unless par- ticularly stated, distinct from the documents; yet he must answer to the fact of the existence of such documents according to his knowledge or his information and belief; {d) 11. Where the facts charged are not material or necessary for the complainant's decree; (e) 12. Where the matters- as to which an answer is sought were reposed in the defendant as counsel, attorney, solicitor, arbitrator, grand-juror, physician, min- ister, &c. (/) A defendant cannot, however, in his answer, excuse himself from making a full discovery by merely denying the complainant's title to discovery and relief; as the complainant is entitled to a discovery of all matters which will be essential to the relief claimed, in case he should *succeed in showing that the particular defence set up in the [*133J answer is false or unfounded, {g) The complainant is entitled to an answer to every fact charged in the bill, the admission or proof of which is material to the relief sought, or is necessary to substantiate his proceedings, and make them regu- lar ; (Jb) or to enable the court to make a decree against the defend- ant, (t) But the defendant need not answer questions which, though material to the general object of the suit, do not afiect himself {k) And where the defendant, who is a trustee, or in the nature of one, states in his answer generally that he is a stranger to the several mat- ters in the bill mentioned, and that he cannot set forth any further or other anssver thereto, either as to his knowledge, belief, or otherwise ; (X) I(i il). 6 irt. 137. (y) 2 Har. & Gill. 383. 4 John. Ch. Rep. 432. 6 Conn. Kep. 361. 2 Young & Jer. 183. 18 Joliu. ,592. 3PaiKe,528. C»J 6 John. Ch. Kep. 235. (a) 4 Coweirs Ke|j. 6-11. (i) 3 Bro. 488. n. (c) Smith V. Fi.sher, 2 Desans. 275. (d) 3 John. Ch. Rep. 297. (e) David v. Miipes, 2 Paige, 105. (fj Mitf Eq. PI. 224. (gj Bank ul'Uiica v. Jlerwrean. 7 Paige. 517. (h) 2 Paigo. 105. (ij Ag;ir v. Regent's Canal Co., Coop. 215. 'k) 2 Uan. 233. 281 ]^33 ROCEEDINGS TO A DECREE. [Book I. ib seems, that where it appears clearly no benefit would result to the complainant from requiring an answer to each fact and interrogatory, the answer will be considered sufficient, {l) When it is said that a defendant who undertakes to answer should answer fully, it must be understood to apply only to matters loliich are well pleaded ; that is, to the facts stated and charged. To matters of law, or inferences of law drawn from the facts, he need not answer. Thus, a defendant ought to answer, when requii'ed to do so, whether a will was published by the testator in the presence of three witnesses ; but he is not obliged to answer to an interrogatory requiring him to say whether the publication was such as is required by law to pass free- holds by devise. Sometimes a defendant, instead of answering such interrogatories, submits the point to the judgment of the court; but it is not necessary to do so. (m) A defendant must answer " as to his knowledge, I'emembrance, infor- mation and belief," according to the general requisition in the bill. (38) And in general, where matters charged in the bill as the acts of the defend- atit himself, are of such a nature that he can be presumed to recollect them, if they ever took place, a positive answer is required, {n) (39) Thus, on a bill filed charging usury, an answer that the defendant does not remember the terms on which the money was lent, will be considered evasive, and tantamount to an admission of usury, (o) So [*134] where the *bill directly charged upon the defendant that he had made and entered into a certain agreement, it was held that a sim- ple denial, by the defendant in his answer, "according to his recollec- tion and belief," was insufficient, and ought to be treated as a mere evasion. ( jt?) And where any thing is alleged in the bill as the act or deed of the defendant, or as a matter within his personal knowledge, if he does not deny such allegation, in his answer, according to his recol- lection and belief, the allegation in the bill will be considered as admitted, for all the purposes of the suit, [q) But where the facts are such that it is probable the defendant cannot recollect them, so as to answer more positively, a denial of the facts according to his knowledg , recollection and belief will be sufficient. (?•) (l) See Jones v. Wiggins, 2 Young & Jer SSi ; 1 id. 340. (m) 1 Dan. 256. (n) Hall V. Wood, i'L ai^e, -104 Sloan v. Little. 3 id. 103. Prac. Reg. 1,1. 3 A. K. Marsh. Rep. 6. (o) Scotts v. Hume, I/ltt. Sel. Ca. 379. (p) Tavlor v. Luther, 2 Sumner, 228. (q) llule 17. See also 2 Bibb, 07, (i9 ; 3 Monroe, 187 ; :i Litt. .W ; 1 J. J. Marsh. 212 : 1 id. 87, 90. (r) Hall v. Wood, 1 Paige, 401. (:?8) 1 Dan. Ch. Pr. ltd Am. ed. 7:!7 ; Stoiy Eq. PI, § 854, abatement of damages going to a part of the consideration, and other cases of re- CDupmeat, or set-off, payment, and the like. (Van Sant. Bq. Pr. 206; Van Epps w Harrison, 5 Hill, 6:5; Houyhton v. Townsend, 8 How. Pr. 442; Bush v. Prosser, 11 y. T. 344.) Indeed, it has been held that sach matters of partial defence, as pay- ments, &o., are defences as far as they go, and not only mail, but must, be taken by answer, in order to be available in proof on the trial. {MoKijrinq v. Bull, 16 N. T. 2yr; fFtUi's V. Tafff/flfrf, 6 How. Pr. 433; mghtman v. Shanldand. IS id.JiO.) As to answers of new matter which contain within themselves a full defence to the entire cause of action, the general rules relative to the statement of the essential f:iL't.i in a complaint are equally applicable to an answer. (Van Sant. Bq. Pr. 208.) Thus, the facts thennelves, constituting the defence, must be stated, and not the evidence of the facts, or collateral circumstancos. The facts alone must be stated, and not ler/al conclusions or inferences of law. The facts must be stated as facts, logically and directly, and not in hypothetical form, or in an evasive or ambiguous mrmuer, nor in the alternative ; and, if so stated, will be struck out on motion. (lb. ; Ciirbin V. George, 2 Ab. 465.) A defendant may set up in his answer, since the Code as well as before, matters of defence arising since the ooni;noncemont of the actiira, such as settlement, discharge of the action, and the like. (IVillis v. Chipp, 9 How. Pr. 568; Donovan v. Sunt, 7 Ab. 29; Price v. Peters, 15 Ab. 197.) .Section 150 of the Code allows a defendant to set forth, by answer, as many de- fences and counter-claims as he may have, whether they be such as have been here- tofore denominated legal or equitable, (n' both. Under this section an equitable defence may be interposed to a purely legal cause of action, and whether the relief demanded be legal or equitable, he may set up the same defence. (Van Sant. Bq. Pr. 209: Foot v. Sprague, 12 How. Pr. 355; Burgett V. Bissell, 5 id. 192 ; S. 0. 3 Code K. 215 ; Bimt v. 'Farmers' Loan Sr Trust Co. 8 How. Pr. 418; Van De Sande v. Mall, 13 id. 458; Hairey. Baker, 5 N". T. 357; Hinman v. Judson. 13 Barb. 629.) Thus, in an action upon a judgment, the defend- ant may set up as a defence that it was obtained by fraud. (Dobson v. Pcarce, 12 K. Y. 156.) In an action to recover the possession of land, he may set up in his an- swer a mistake in the conveyance, {Bartlett y. Jitdd, 23 Barb. 282,) or that he is equitably the owner of the premises, and entitled to a conveyance thereof. (Crari/ v. Goodman, 12 K. T. 286.) Yet it is not every equitable claim that may be thus .setup as a defence. Thus, in_an actiimJo recover damages for diverting a water- course, the defendant cannot set up, either by way of equitable defence or counter- claim, the violaticm by the plaintiff of an agreement relative to the deepening of the chauuel made pricn- to the alleged diversion of the water. {Pattison v. Richards. 22 Barb. 143.) Under the head of equitable defences are included all matters which before would have authorized an appliaotion to the court of chancery for relief against a legal liability, but which, at law, could not have been pleaded in bar. (Dnbson v. Pearce, 12 N". Y. 156; S. G. 1 Ab. 103; 1 Duor, 142.) It seems that an equitable defence must l)e set up in this way, since it is uo longer allowable to bring an action for the mere purpose of restraining the prosecution of another action pending in tbe same court. (Foot y. Sprague, 12 How. Pr. 355; Auburn City Banky. Leonard, 20 id. 193.) That a deed, absolute on its face, was intended as a mortgage, is available as a defence in any action. (Despard v. Walbridge, 15 if. Y. 374 ) An answer must show whether it is a mere defence m a counter-claim. (Clough V. Murray, 19 Ab. 97.) So whore the defence set up is a failure of consideration, the answer must show whether it is a total or a partial failure, (lb.) And it muit distinctly aver all those facts which, when the plaintiff's case i-i admitted or proved, the defendant must prove in order to defeat a recovery. {Taylor v. Richards. 9 liww. 679; Dennis v. Sncll, 54 Barb. 4U ; S. C. 34 How. 467; 50 Barb. 95; CatUn V. G-unter, 1 Duer, 266; S. C. 11 IST. Y. Irig. )s. 201; Ayraulty. Chamberlain, 33 Barb. 229; approved, 31 N" Y. 614; Carter v. Koczleii. 14 Ab. 147; S. C. 9 Bosw. 5S3 ; Jacobs v. Remsen, 12 Ab. 390 ; S. C. 35 B.irb. 3:34 ; 35 IST. Y. 6JS ; Savage v. Corn. Exchange. <.f o. Lis. Go. 4 Boiw. 2 ; Baaty v. Sii>.trthout, -M Barb. 293 ; Pier v. Finch, 29 id. 170.) 288 Chap. 6.] PROCKRnrxGS to a decree. ^[37 of the nature of the case he intends to set up; and that too in a clear, A defendant, in his answer of new matter, in order to avoid a cause of action, need not confess it. He has the right to say : " I deny yom- alleged cause of action, but il' you shall succeed in proving it, still I am not liable, because," How. 464 ; Rooseoelt v. N. Y. cf- Harlem B. B. Co. 45 ]iarb. 554 ; S. C. 30 How. 226.) Yet where it is not brought into o eiii Steamship Co. Iz id. 3UU.) In an action ansing upon contract, it is any other cause of action arising also upon contract, and existing ac the commeucement of the actiuu, (Cal. Pr. Act, J 47,) or, iu other words, a cause of action in favor of the defenaaiit, upon which he might have sued lue plaiutiJt, and obtained aihrmative relief in a sep- Chap. 6.] PROCEEDINGS TO A DECREE. 133 up two incoasistent defences, the result will be to deprive him of the benefit of either, aud to entitle the complainant to a decree, (it) Some- (V.) 3 Dan. 218. Sed. vide 3 Anst. 702. arate action. (Soward \: Shores, 20 Gal. 27"; Belleatt v. Thompson, 3:i id. 49.5.) It iucliides both set-off aud reooupmeat, aud is broader aud more oomprehensiva than either. (Clinton v. Eddy, 1 Laus. 61; Vassear y. Lioinr/ston, 13 N". T. 248; S. C. 4 Dner, 235 ; BeardsJey v. Stover, 7 Hj)W. Pr. '294.) It i-i iuteuded to secure to a doCeudanc all the relief which either an action at law, or a bill in equity, or a cross- action would hare secured him on the same state of facts. (Leauoiuoorth v. Packer, b'Z Barb. I'-ii ; Boston Silk. ^o. Mi,Us v. Bull, ;W How. 299.) It must be something that re.iists or modifie.^ the plaintift''s claim. (National Piro, Ins. Co. v. MoKai/, 21 N. T. 193; Pattisoii v. Richards, 2i Barb. 143; Leaociiworthy. Packer, supra.) It must exist against the plaintiff a^ well as against the defendant. {Diioidson t. Bem- ington, 12 Hiiw. Pr. 310 ; Bates v. Mosekrans, 37 ]S". T. 409 ; S. 0. 4 Ah., N. S. 276.) Tne Code is express that the claim " must be one existing in favor of a defendant aud against a plaintiff," (^ 150,) and this laugaaga is so plain a-! to leave no room for interpretation; but i 112 qualifies its effect. {Merrick v. G-ordoii, 20 IT. Y. 93. See also Duncan v. Stanton, 30 Barb. 533 ; Schubart v. Harteau, 34 id. 447 ; Tyler V. Willis, 33 id. 327 ; S. 0. 12 Ah. 4(55 ; Chaffee v. Cox, 1 Hilt. 78 ; misie v. Nor- tliiim, 3 Bosw. 162; Gamings v. Morris, 3 id. 560; S. 0. 25 K. Y". 625; Lowell v. , Lane, 33 Barb. 292; La Farge v. Salsey, 4 Ab. 397; S. G. 1 Bosw. 171.) A coun- ter-claim to be valid must be a claim agaiu-it the plaintilf on the record. The right to set np a connter-olaim against the assignee of a demand, after the assignment, is not reserved or given in any part of the Code. (Spencer v. Baicock, 22 Barb. 326 ; }yeeks V. Pryor, 27 id. 79.) In Vassear v. Living.ston, (13 N". T. 243.) Benio, J., says : " A counter-claim must ooutain the substance necessary to sustain an action on behalf of the defendant agaiust the plaintiff, if the plaintiff had not sued the defejidant." It may be of a legal or an equitable nature, or both. (Cnrrie v. Cowles, 6 Bosw. 452 ; Lemon v. Trull, 13 How. Pr. 24S.) A counter-claim must be pleaded as such. (Beers v. Wa- terbwy, 8 Bosw. 396.) To designate it as a "further defence" is not sufficient. (Bates V. Bosekrans, 37 If. T. 409; S. 0. 4 Ab., N. S. 276; 4 Trans. App. 332.) The answer should state whether it interposes a defence or a counter-claim. (Cloiigh y. Murray, 19 Ab. 97.) But no particular form of words is necessary to make a plead- ing a counter-claim. If the party, in any reasonable langaage, intimates that he intends to make a personal claim in his own favor against the plaintiff, that is suffi- cient. (Bates 7. Bosekrans, 37 W. Y. 412.) The ordinary and moat satisfactory form of giving that intimation, however, is by a statement that the pleading is a counter-claim, or by a prayer for relief. (lb. See Allen y. Saskins, 5 Duer, 332; Merritt v. Millard, 5 Bosw. 645; 10 id. 309.) An answer which contains no words that will justify the plaintiff in supposing that any personal judgment is sought against him, aud in preparing for that emergeuoy, is insufficient. (Bates v. Bose- krans, supra.) A counter-claim must exist in favor of the defendant and against the plaintiff at the time the action was commenced. (Rice v. O'Connor, 10 Ab. 362 ; Seidenheimer V. iVilson, 31 Barb. 636.) An answer alleging that the plaintiff is indebted, (fee., and tiiat the sum claimed is now dne, cfcc, is bad on demurrer. (lb.) The allegations of a pleading, in the absence of any averment to the contrary, refer to the time it is verified or served. (Prindle v. Caruthers, 15 'S. Y. 425.) An answer of set-off must allege not only that the plaintiff was indebted to the defendant, but that his indebtedness still exists. (Dendtj v. Powell, 3 Mees. &, Wels. 442.) "Where the de- fondant sets up as a counter-claim a note made by the plaintiff payable to a third person, and indorsed to the defendant, the answer must aver such indorsenieut to have been made before the action was commeucod. ( Van Valen v. Lapham., 5 Duer, 6rfJ ; S. 0. 13 How. Pr. 240; Chambers v. Lewis, 11 Ab. 210 ; S. 0. 2 Hilt. ,591 ; 10 Ab. 206.) It is not enough for the answer to allege that the note is " a counter- claim aud cause of action existing against the plauitiff at and before the commenoo- ment of the actiim." (lb.) A counter-claim includes only causes of action existing against the plaintiff on the record, and on which, under the old system, an action at law, or a suit in equity, iiiisrht have been maintained against him. Hence, in an action agaiust the maker of a ;u!g,)tiable note, by an indorsee, fants that admitted to be true, amount only to a ^95 138 FROCMEDIKGS TO A DECREE. [Book I. times, indeed, the court will, whei-e from redundant expression or other verbal inaccuracy, a defence has been rendered inconsistent, when it valid counter-claim against the payee and indorser, cannot be set up, for any purpose, in the answer of the defendant. {Gleason v. Moen, 2 Daev, 639.) But if the facts, although pleaded as a counter-claim, oonstitute a good defence by way of set-off, or reooupiueut, and the note was transferred under circumstauoes that rendered it sub- ject to all existing equities between the maker and payee, they may be set up as a bar, iu whole or in part, to the plaintiff's r,ecovery. (lb.) Bach defence or counter- claim should be a complete single defence, of itself, without reference to others. {Spencer v. Bahoock, 22 Barb. 32ti.) Where a couater-claim set up in an answer was embraced in fiye different specifications, numbered as five separate defences, neither of which aloue, was a defence, it was held that the oouater-elaim was not properly stated. (lb.) A defence cannot be made out, iu pleading, by coaneoting two or more separate defences together, any more than it could formerly, by cormeotiDg to- gether two or more special pleas, each insufficient of itself (lb.) It has been held that in an action to recover for the price of personal property sold, an answer setting up a breach of warranty, iu respect to the quality of such property, and claiming to recoupe to that extent, is a counter-claim. {Lemon v. Trull, V^ How. Pr. 24S.) Yet in a later case (N'iohols v. Boerimi. 6 Ab. 290), where in an action upon a promissory note, against the maker, the defendant answered, setting np a failure of consideration, in that the goods sold by the plaintiff, in payment for which the note was given, were not of the quality warranted, and claimed damages for the breach of the warranty ; it was decided that the defence set up by the answer did not constitute a counter-claim. In an action upon a contract, the defendant may, under subdivision 2 of section liiO of the Code, set up, as a connter-olaim, a judsinent obtained by him against the plaintiff, iu an action for' a tort. {Taylor v. Root, 4 Keyes, :i:53.) A counter-claim may be interposed, althoagh the claim mentioned in the complaint is purely of a common law nature, or for the recovery of m )ney only. {Hicknoille 4" Cold Spring Branch B. B. Go. v. Long Island R. B. Co. 48 Barb. 355.) Whether the facts alleged in an answer constitute an admissible counter-claim in the aetion, can only be deter- mined by demurrer, or by objection on the trial. {Collins v. Suau, 7 JKob. 94.) A counter-claim may be pleaded in an action to recover the possession of personal pro- perty, where it arises out of the transaction set forth in the complaint. {Brown v. Bticlcingham, 21 How. Pr. 190 ; S. 0. 11 Ab. 3ci7.) The counter-claim authorized by the Code secures to the defendant the full relief which a separate action at law, or a bill in chancery, or a cross acticm would have secured him, on the same state of facts. {Leavenworth v. Packer, ^2 Barb. 132; Boston Silk ^ Woolen Mills v. Eull, 37 How. 299; S. C. 6 Ab., K. S. 319 ; Gleason v. Moen, 2 Buer, 639 ; Curris v. Cowles, 6 Bosw. 452.) The right of the plaintiff to claim, and of the defendant to oounter-c« im, must be reciprocal. {Haijor, Src.,of ]) Carte t. Ball, 3 Atk. 496, 499. Pr. 248.) Thus, a mistake in a contract, and a claim to have it reformed, may be set vip as a counter-claim. (^Wempley. Stewart, ^'i'Baxh. Ibi.) But in cases of an equitable nature, substantially the same limitation is appUed as was applied in respect to tiling cross bills in chancery ; which were allowed only as to matters touching the matter.s in the original bill. {Burns v. Nevins, 11 Barb. 493.) Yet it is not every equitable claim that may be set up as a defence. Thus it is held that in au action for damages for diverting a water course, the defendant cannot set up, either by way of equitable defence or counter-claim, the violation by the plaintiif of an agreement relative to the deepening of the chanuel, made four years prior to the alleged diversion of the water. {Batlison v. Richards, 22 Barb. 143.) In California, the defendant may set up au equitable defence in au action at law ; but if he relies on an equitable right of action as a defence, ho must plead the same as fully as if he were bringing an action in equity. {,Carjpenter v. T/ie City of Oak- land, 30 Cal. 439.) In that state, equitable defence.? may be Interposed in the action of ejectment. But the defendant, in such cases, becomes an actor with respect to the matter pre- sented by him, and his answer must contain all the essential averments of a bill in equity, and the equity presented must be of such a character that it may be ripened by the decree of the court into a legal right in the premises, or such as will stop the plaintiif in the prosecution of the action. (2 Bstee's Pr. 295 ; Lestrade v. Murphy, 19 Cal. 248 ; fFeber v. Marshall, id. 447 ; Doioncr v. Smith, 24 id. 124 ; Blum v. liobertson, id. 146.) And he mast inform the adverse party of the nature of the de- fence which he will be obliged to meet, with the same fullness and particularity as is required in cases involving like subjects of inquiry in suits in equity. (Davis v. Davis, 26 Cal. 38.) When an equitable answer is iuterposed to au action of eject- ment, such answer, being a bill in equity, can only be put in where the parties to the acticm are such as would bo required to a biU in equity seeking the same relief {Lestrade v. Barth, 19 Cal. 680.) The equitable defeuce is first to be passed upon b}- the court, (Ibid ;) and until that is disposed of, the assertion of the legal remedy is in effect stayed. Upon the determination of the court upon the relief prayed by the answer, the necessity of proceeding with the action at law will depend. "When it does proceed, the legal title will control its result. {Estrada v. Murphy, 19 Cal. 248 ; Martin v. Zellerbach, cited 2 Estee's Pr. 927.) In such suit, the court, sitting in equity, may direct, when proper, an issue to be framed upon the pleadings, and submitted to a jury, if que.-itions of a purely legal character, in relation to the title, arise. {Curtis v. Sutter, 15 Cal. 259.) And it is irregular to submit to the jury all the legal and equitable defences together. (Lestrade v. Barth, 19 Cal. 6B0.) The setting up of an equitable defence to a legal cause of action does not transform such causes of action into au equitable action, for the purpose of making it triable without a jury ; but it must still be tried by jury. (Van Sant. Bq. Pr. 210.) Separate statement and numbering of defences.] Bach defence should be com- plete of itself, without reference to others. (Baldwin v. U. S. Telegrax>h Co. 6 Ab., iJ'. S. 405; S. C. 54 Barb. 505; Swift y. Kingsley, 24 Barb. 541; Ayres v. Covill, 18 id. 260; Hamrn- y. McFarlin, 4 Denio, 511; Spencer v. Babcock, 22 Barb. 326; Bridge v. JPayson, 5 Sandf. 210 ; Sinclair v. Fitch, 3 B. D. Smith, 677 ; Looseij v. Orser, 4 Bosw. 392 ; Xenia Branch Bank v. Lee, 2 id. 694 ; S. 0. 7 Ab. 372 ; Bene- dict v. Seytnour, 6 How. Pr. 298.) And stand by itself as completely as if it stood alone, and was the sole defence ; (Twemlow v. Askey, 3 Mees. & Wels. 495; Fisher v. Aide, id. 486;) unless it in terms adopts or refers to the matter contained in some other answer. (Baldwin v. U. S. Telegraph Co., supra.) And each defence should answer the cause of aoti(m to which it is addressed, and the whole of it. (Brown v. Byckman, 12 How. Pr. 314 ; Kneedlei v. Sternberg, 10 id. 68.) But to mark it a.-; a sepai-ate defence no formal commencement or conclusion is necessary. (Bridge v. I'ayson, 5 Sandf. 210.) It should, however, indicate distinctly, by fit and appropri- ate woi'ds, where the defence commences, and where it concludes. (Lippvncott v. Vroodtoiu, 8 How. Pr. 242.) Commencing each defence, -'and the defendant further say.s,'' is not sufficient, (lb.) But, to commence, "and for a further defence," is, it seems, sufficient. (Benedict v. Seymour, 6 How. Pr. 298.) Although general and specific denials to the same part of a complaint are not por- 301 138 PliOCEEBINaS TO A DECREE. [Book I. right, whic}i he may have independently of the question -(vhether a defendant may not establish a special case which may be equally valid against another, supposing such other to have the prima facie title, as it would be against the complainant in case he proves his prima facie title.(a;) Although in stating a defendant's case it is necessary to use such a degree of certainty as will inform the complainant of the nature of the case to be made against him, it is not necessary that the same degree of accuracy should be observed in an answer as is required in a bill, (y) If the defence i,o be made to the bill consists of a variety of circum-' stances, so that it is not proper to be offered by way of plea, or if it is [*139] *doubtful whether a plea will hold, the defendant may set fortli tlie whole by way of answer, and pray the same benefit of so much as goes in bar as if it had been pleaded to the bill. (2) Thus, it has been held that a defendant insisting upon the benefit of the statute of limitations by way of answer, may, at the hearing, liave the like benefit of the stat- {xj Jesus College v. Gibbs, 1 Young & Coll. 145. (yj 2 Dan. 244. fz) Mitf. 249. mitted, yet an answer may contain a specific denial to one part of a complaint, and a general denial to the remainder. (Blake v. Eldred, IS How. Pr. 240.) A defend- ant may plead one defence to one part of a canse of acticm, and another defence to other portions of the same cause of action. {Longwor thy v. Knapp, 4 Ab. 115.) Defences, separately pleaded, cannot l)e sustained nor defeated by connecting two or more of them together, any more than formerly special pleas could be by so con- necting them. (Spencer V. Babeock, 2i Barb. 3-26; Aijrault v. Chamberlain, 33 id. 237 ; Ritchie v. Garrison, 10 Ab. 246, and note; Landau v. Levy, 1 Ab. 376; Si)i- clair V. Fitch, 3 E. D. Smith, 677 ) To avoid repetition, it seems that a defendant may aver, once for all, certain facts applicable to each of several defences or counter-claims, and having averred them in line defence, or by way of introduction to all, thereafter refer to them in any otlaer defence, distinctly and intelligibly, so as to inolnde them in it. (Xenia Branch Bunk V. Lee, 1 Ab. 387 ; 2 Bosw. 694. See Ayres v. Covill, 18 Barb. 261 ; Sinclair v. Fitch, 3 E. D. Smith, 677.) "Where, in one defence, the note sued on is described, reference to it in a subsequent defence, in the same answer, as the " said" note, suffi- ciently points out the note in snit. ( Williams v. Richmond, 9 How. Pr 523.) Where there are several separate defences set forth in one answer, an admissiim made in one is not available against other separate defences in the same answer. (Swift v. Kings- ley, 24 Barb. 541 ; Ayres v. Covill, 18 id. 261.) Uule 25 of the supreme court directs that in all cases of more than one distinct cause of action, defence, counter-claim or reply, the same shall not only bo separately stated, but plainly numbered. A failure to comply with this rule subjects every allegation which is not essential to a single cause of action to be strickou out, if objected to, as redundant. (Bene- dict V. Seymour, 6 How. Pr. 298 ; Lippencott v. Goodwin, 8 id. 242, .243, n; Robin- son V. Jadd, 9 id. 378, 3S2.) When distinct causes of action are not separately stated, or plainly numbered, the remedy is by motion to set aside the pleading. (Dormant. Kellam. 14 How. Pr. 184; S. 0.4 Ab. 202; Blanchard v. Straight, 8 How. Pr. 85.) Or by motion to have the pleading made more definite and certain. (Colton V. Jones, 7 Rob. 164; Woody. Anthoyiy, 9 How. Pr. 78.) An objection to this defect cannot be raised by demurrer. (Burr v. Comstock, 38 N". T. 21 ; S. 0. 3!) How. 382; Colton y. Jones, supra; Dorman v. Kellam, 14 How. Pr. 184; S. G. 4 Ab. 202.) Where a party intendsto insist on this objection, he should return the pleading, with his objection specified thereon, or the objectiim will be deemed waived. (Curbin v. George. 2 Ab. 465; Sawyer v. Schoonmaker, 8 How. Pr. 198; Strauss v earker, 9 id. 34i.) 302 Chap. 6.] PROCEEDINGS TO A DECREE. ]39 ute as if he had pleaded it. (a) So also if a defendant can offer a mut- ter of plea which would be a complete bar, but has no reason to protect himself from any discovery sought by the bill, and can offer circum- stances which he conceives to be favorable to his case and which he could not offer together with a plea, he may set forth the whole by way of plea, or of answer to support a plea — as the expending a considera- ble sum of money in improvements with the knowledge of the complain- ant — it may be more prudent to set forth the whole by way of answer than to rely on the single defence by way of plea; unless it is material to prevent disclosure of any circumstances attending his title, (b) But it is only at the hearing of the cause that any such benefit can be in- sisted upon: when the defendant will be entitled to the same advan- tage of this mode of defence that he would have had if he had adopted the more concise mode of defence by demurring or pleading; and his right to costs in case of his success will not be affected by the course of proceeding which he has adopted, although it has occasioned more ex- pense to the complainant than he would have incurred by simply demur- ring or pleading to the bill (c) Schedules.] "Where the bill requires the defendant to set forth a general account or to answer as to moneys received, or documents in his possession, it is the general practice to set forth the account or list of the sums or documents in one or more schedules annexed to the answer, which the defendant prays may be taken as part of his answer. It may also be resorted to by the defendant for the purpose of showing the nature of his own case, or of strengthening it, even though there is nothing in the bill itself, or in the interrogatories, which may render a schedule necessary, (r?) But a defendant should be careful not to frame his schedule in a manner which may be burthen some and oppres- sive to the complainant; otherwise it will be deemed impertinent. Thus, where a bill was filed for an account, containing the following interrogatory, " whether any, and what sum of money was due from the house of *A. to the house of B., and how the defendant made [*]40] out the same ?" and the defendant, by his answer, set forth a long sche- dule, containing an account of all dealings and transactions between the two liouses. Lord Eldon held the answer clearly impertinent, and that the defendant ought merely to have answered that such a sum was due, and that it was due upon the balance of an account, (e) So where a defendant, in his schedule, set out at length a bill of costs in relation to another bill delivered for the same business, it was held impertinent, (a) Norton v. Turvill, 2 P. Wms. 144. (h) Mitf. aiO. fc; Wriiv V. Hutchinson, 2 My. &Kecn, 233. Milligaii v. Mitchell. 1 My. & Craig;. 4'53. td) 2i)aii. 262. (e) French v. Jacko, 1 Mer. 357, (n.) 303 240 PROCEEOrXGS TO A DECREE. [Book I. altliough the bill called upon the defendant to set forth how he com- puted and made out his demand, and all the particulars relating there- to, with interrogatories pointed to the particular items and to a minute comparison of the two bills of costs. (/) In like manner it seems to be held that in the case of an executor called upon to account for his disbursements it is not necessary to set out every particular item. ( g) Form of answer.] Ko particular form of words is necessary in an answer. If it be not evasive, and if the substance is preserved, it is suflBcient. (A) It is headed by a title as follows : " The answer of 0. D., the defendant, to the bill of complaint of A. B., complainant." If two or more defendants join in the same answer, it is entitled, " The joint and several answer of 0. D. and E. F., defendants," &g. ; unless it be the answer of a man and his wife, in which case it is called the joint answer. Where any defect occurs in the title of an answer, so that it does not appear distinctly whose answer it is, or to what bill it is an answer, it will be a ground for taking it off the file for irregularity, (i) An answer commences by reserving to the defendant all manner of a "When every part of an answer is objected to as irrelevaut and redundant, although by several exceptions, it must be regarded as an exception to tlie whole pleading, and an application to strike out, under J 160, canuot be entertaiaed, bucause it wouTd give to the motion the effect of a demurrer, or a decision under section 152. (lb.) An entire pleading cannot be stricken out under section 160 {Fasnecht v. Stehn, 5 Ab., ISr. S. 338 ; S. C. 53 Barb. 650 ; Collins v. Cogfjill, 7 Rob. 81 ; Benedict v. Dnke, 6 How. Pr. 352; Nichols v. Jones, id. 355 ; Hall v. Smith, 8 id. 149 ; S. 0. 1 Daer, 649 ; Howell v. Kniokei'bocker Life Insurance Co. 24 How. 475 ; Blake v. Eldred, 18 id. i40.) A party seekiug to have matter expunged must specify the parts deemed irrelevant or redundant. The court cannot be required to examine the whole plead- ing and select the parts to be removed. {Blake v. Eldred. 18 How. Pr. 240.) Although matter which is iiTelevant is also redundant, the converse is by no means true. A needless repetition of material averments is redundancy, although the facts averred, so far from being irrelevant, may constitute the whole cause of action. (Bowman v. Sheldon, 5 Sandf. 657, 660; S. C. 10 N". Y. Leg. Obs. 339.) By irrele- vant or redundant matter, in section 160, is meant matter impertinently or unnecessa- rily stated in the cause of action in the complaint, or the defence, or a defence in the answer. {Fasnecht v. Stehn, 53 Barb. 651 ; S. 0. 5 Ab., N". S. 338.) Allegaticms in an answer seeking to set up equities against an indorser, before ma- turity, against an action by another holder, may be struck out as irrelevant. (Arran- goiz V. Eraser, 2 Hilt. 244.) Any matter, in a pleading, is irrelevant, if it have no bearing on the question in dispute, does not affect the subject matter of the contro- veray, and can in no way assist or affect the decision of the court. {Fabricotti v. Launitz, 3 Sandf. 743; S. 0. 1 Code Rep., N". S. 121 ; Stafford v. Mayor, fe. of Al- bany, 6 John. 1 ; Van Rensselaer v. Briee. 4 Paige, 177 ; ferrine v. Farr, 2 Zab. 356 ; Lee Bank v. Kitching, 7 Bosw. 664 ; S. C. 11 Ab. 435; Cahill v. Palmer, 17 id. 19o.) Matter cannot be stricken out as irrelevant, however, if it in any way affects the question of damages. (Root v. Foster, 9 How Pr. 37.) If averments in any way tend to establish or assist in establishing a defence, they cannoc be stricken out as irrelevant. {Imjersoll v. IngersoU, 1 Code R. lOi ; Averill v. Taylor, 5 How. Pr. 476; S. 0. 1 Code Rep., 'S. S. 213 ; Minor v. Terry, 6 How. Pr. 208.) Tbe fact that a defence arose after the action was commenced, is not a reason for striking it out for irrelevauoy. {Carpenter v. Bell, 1 Rob. 711 ; S. 0. 19 Ab. 258.) Motions to strike out of any pleading matter alleged to be irrelevant or redundant, must be noticed before demurring or answering the pleading, and within twenty days from the service thereof. (Rule 28 Supreme Court.) Every objection to pleadings must be made before trial, or notice of trial. A judge, on the trial, cannot strike out any part of the pleadings. (Smith v. Countryman, 30 S. Y. 655 ; Kellogg v. Baker, 15 Ab. 287.) A defence cannot be stricken out as irrelevaut because it con- tains matters which may be proved under the general denial. (Hollenbeok v. Clow, 9 How. Pr. 289. But see Benedict v. Seymour, 6 id. 293, 304.) One of the best tests of the materiality of an allegation is, whether, in any aspect of the ca^e, it can bo material ; if so, it cannot be stricken out. (Cahill v. Palmer, 17 Ab. 196.) If the plaintiff' makes distinct and positive, though immaterial, allegations in his com- plaint, yet in a traversable form, and the defendant takes issue thereon, the plaintiff uanuot move to strike out such parts of his adversary's pleadings as relate to the immaterial part of the complaint. (King v. Utica Ins. Co. 6 How. Pr. 4S5 ; Doran V. Dinsmore, 20 id. 503; S. C. 33 Barb. H6 ; 2 Code Rep. 67.) A defence that is good, staudiiig alone, will not become irrelevant because united to another iu the Vol. i—Zii 305 141 PROCEEDINGS TO A DECREE. [Book I. him, without expressly saving it, the general saving at the commenee- eame pleading. Thus, where two defences are set np, the first is not rendered irrele- vant by the secoud. (Townsend v. Piatt, 3 Ab. 3^.) All matters pertaining to pretence and charge, which prevailed so extensively in chancery pleading prior t; Metropolitan Bank v. iortJ, 4 Duer, 632; S. C. 1 Ab. 185; Casiooll v. Bushnell, 14 Barb. 393.) An affidavit of verity, under the Oode, has no tendency to make that material which was palpably frivolous. (Reed v. £rtteo», 15 Barb. 17.) It is barely possible that a verification will save a pleading from the allegation of falsity; but it can have no such potency as to protect it ii-om the judgment of the court when asked to pro- nounce it frivolous. {Thorn v. New York Central Mills, 10 How. Pr. 19, 25; Sher- vHiii V. N. Y. Central Mills, 1 Ab. 187.) Vagueness, in pleading, is not frivolous- ii'.iss; it is to be corrected by amendment, and not visited by judgment. (Kelly v. Bitniett, 16 How. Pr. 137.) The following are reasons for holding a pleading frivolous : 1. That it is put in merely for purposes of delay ; or, 2. That the grounds stated in it arc clearly unten- able. (Sixpenny Savings Bank v. Sloan, 12 How. Pr. 543, 544; S. 0. 2 Ab. 414.) A decisiou in point, adverse to the sufficiency of a ploadiug, is .also held good ground for treating it as frivolous. (People v. MeCiimher, 15 How. Pr. 186, 19J; S. 0. 27 Barb. 632; 18 K T. 315; Bank of Wilmington v. Birnes, 4 Ab. 227; Strong v. Stevens, i Duer, 668; Langdaley. McLean, 10 Jm-ist, 642.) The fact that the de- fendants deny, in their answer, any knowledge or information sufficient to form a belief, of allegations in the complaint which are presumptively within their per- Bonal knowledge, will not render the answer frivolous. (Leach v. Boynton, 3 Ab. 1.) Under the former pruotico sham and frivolous answers were frequently confounded, but they are carefully distinguished by the Code. The distinction is that which is stated in Brown v. Jamison, 3 Sandf. 732. {Hull v. Smith, 8 How. Pr. 149.) Where an action was commenced on a promissory note against both maker and apyee, an answer by the payee, that he indorsed the note for the accommodation of hte maker, and the.t that fact was known to the plaintifi' when lie received it, was ehid frivolous in Pettigrew v. Chave, (2 Hilt. 548.) And in a like action an answer liwich set up a parol agreement between the parties, with no consideration, and hwich was inconsistent with the tenor 'of the note, was held frivoUms. (Elizabeth- port Manuf. Co. v. Campbell, 13 Ab. 87. See Phoenix Bank of N. Y. v. Donnell, 40 N. T. 410, 414 ; Bailey v. Lane, 13 Ab. 354.) So an answer alleging that there was a failure to present the note for payment at the time it became due, and at the place where it wa,s made payable, was held frivolous in Tompkins v. Acer, (10 How. Pr. 309.) In Thorn v. N. T. Central Mills, (i Sandf. 262,) the following answer was held frivolous, although verified : " This defendant (a corporation) has no knowl- edge (u- information sufficient to form a belief that it did, at the time for that purpose stated in the complaint, by its authorized agent make its promissory note, by the ■name and for the amount, and as in this respect set forth in said complaint, or that it is indebted to the said plaintiffs upon such a note as is in the said complaint men- tioned." So of a denial in the answer that the plaintiff is the lawful owner and holder of the note in suit, and which does not allege the title to be in some third person, or of an allegaticra that when the note was given it was agreed that it should ba renewed upon request. (Fleury v. Boget, 5 Sandf. 646.) A denial in a,n answer that the plaintiff was the lawful owner of the nota aued on, or that the defendant was indebted to him thereon, raises no issue of fti(Jt ■(whatever, but is merely a denial of a conclusion of law, and it will be stricken out as frivolous. (Catlin v. Giinter, 1 Duer, 255; Piersonv. Cooley, 1 Code Rep. 91; MeMurray v. Clifford, 5 How. Pr. 14. See DeSantes v. Searle, 11 id. 477; Fenier v. Williams, 14 Ab. 215; Chadwick V. Booth, 13 id. 249 ; S. 0. 22 How. 23 ; Strong v. Stpvens, 4 Duer, 668 ; McKnight \ Runt. 3 id. 615 ; Siggins v. Freeman, 2 id. 650.) So an answer which sets up as a defence that the note in suit was made as a memorandum note, and was not to be 311 141 PROCBEDINGS TO A DECREE. [Book T. served. The draft is preserved in the office of the solicitor for the de- fendant. negotiated, is frivolous ; (Plant v. Schuyler, 4 Ab., N". S. 146 ; S. C. 7 Bob. 271;) or an aQHwer by a married woman that the mortgage in suit was not acknowledged by her on a separate examination; (Cramer v. Comstock, 11 How. Pr. 486. See also Fireman's Ins. Co. of Albany v. Bay, 4 Barb. 407; S. 0. 4 'S. T. 15;) or an answer setting up as a defence a levy under a foreign attachment. (Seeker v. Mitchell, 5 Ab. 453 ; S. C. 6 Duer, 687.) So in an action commenced against the sureties in an un- dertaking on appeal, it is a frivolous answer to say that the appellant owned real property, and that the execution was returned by the sheriff before the expiration of sixty days, at the respondent's request, and without an attempt to collect the judgment out of such real estate. ( Wood v. Derriekson, 1 Hilt. 410.) So where the answer, without denying either the delivery of the goods by the plaintiff, or his agency, or the promise to pay the plaintiff, merely aven-ed that such goods belonged to A., and not to the plaintiff, and that A., and not the plaintiff, sold them to the defendant. (Seilli/ v. Cook, 22 How. Pr. 93 ; S. C. 13 Ab. 255.) In T)ie Mechanics' Bank of New York v. Webb, (21 How. Pr. 451 ; S. C. 14 Ab. 72, n,) an answer al- leging that the court had no jurisdiction of the action ; that at the time of the com- mencement thereof the defendant was, and ever since had been, envoy extraordi- nary, &o., of the United States to Brazil, duly appointed and commissioned as such, and that, by the constitution of the United States, the courts of the United States alone have exclusive cognizance and Jurisdiction iu all cases affecting ambassadors, pubUo ministers and consuls, wa.'s held frivolous. In respect to matters palpably redundant or frivolous, the court will strike thera out, of course. (Anonymous, 2 Sandf. 682.) The motive with which an answer is put in, or its truth or falsity, is not the test on a motion for judgment on account of its frivolousness. Does it constitute a good defence on its face ? If it does, the mo- tion will be denied. (Becker v. Mitchell, 5 Ab. 453 ; S. C. 6 Duer. 687.) In an action against a married womau, seeking to charge her separate estate, an answer averring that she has no separate estate is not frivolous. (Aitken v. Clark, 15 Ab. 3iy.) So where the plaintiff sues in a representative capacity, aud the com- plaint alleges that the defendant is indebted to him, &c., an answer denying any knowledge or information sufficient to form a belief whether the defendant is so iri- dobted to the plaintiff, is not frivolous. (Morrow v. Gougan, 8 Ab. 328.) And where the answer avers that the plaintiff discounted the dral'ts sued on at an usurious rate of interest, contrary to the statute, and then specifies the auiount of interest taken, this, though it may or may not be an insufficient averment of a con-upt intent, is not so palpably defective in this respect as to authorize a judgment for the plain- tiff for frivolousness ( The National Bank of the Metropolis v. Orcutt, 48 Barb. 256.) So an answer denying knowledge or information suffleient to form a belief as to all the material allegations of the complaint, is not frivolous. (Bichter v. MeMurray, 15 Ab. 346.) And in an action on a promissory note, where the complaint alleges that the plaintiff is the owner and holder of such note, an answer denying that the plaintiff is the owner and holder, and alleging that a third pers(m is the real party iu interest, and the owner and holder, is not frivolous. (Tamisier v. Cassard, 17 Ab. 187. See also Arrangoiz v. Frazer, 2 Hilt. 244 ; Kamlah v. Salter, 6 Ab. 226 ; S. C. 1 Hilt. 558 ; Duncan v. Lawrence, 6 Ab. 304 ; S. C. 3 Bosw. 103.) The motion for judgment on a frivolous answer may bo made to a judge of the court, at chambers, on a previous notice of five days ; or, on like notice, it may be made to the court. The motion is made on the pleadings alone, and the mere ser- vice o( notice of motion on the opposite attorney is all that is necessary. (Van Sant. Eq. Pr. 245.) The notice of motion is, that the plaintiff will apply for jtidgment on account of the frivolousness of the answer, and will ask for the relief demanded in the complaint; not that the plaintiff will move to strike out the answer (lb.) If the motion is granted, the plaintiff is entitled to an order for judgment. This order will be in substance the same as is granted at special term, on application for judg- nieut, as ibr want of an action. If a reference is necessarv to take proof of anv fact, or to take and state an account before final judgment is entered, the order will pro- vide for such reference. (lb. ; King v. Stafford, 5 How. Pr. 30.) Section 247 of the Code, which authorizes judgment on a frivolous demurrer or answer, does not, iu terms, give the court authoritv to allow the defendant to answer over, on terms, as in case of striking out a defence as sham or irrelevant. But, al- though the power of the court to allow this to be done has been disputed, (Sherman V. New York Central Mills, 1 Ab. 190,) yet it is not uucommun, iu practice, to per- 3U Chap. 6.] PROCEEDINGS TO A DECREE. ] 41 Answers and copies thereof are required, by a rule of the court, to be fairly and legibly written ; and if not so written, the register, assis.tant register and clerks are prohibited from filing such as may be offered to them for that p-rpose. {p) (50) Numbering and marking folios.] Tlie rule last referred to also re- quires that the solicitor drawing the answer shall number and mark each folio (i. e. 100 words) in the margin thereof; and all copies, either for the parties or the court, must be numbered or marked in the mar- gin, so as to conform to the draft and to each other. As we have before remarked, in reference to bills of complaint, it is not necessary to num- ber the pages, in addition to numbering the folios, of an answer. As the word " folio" was formerly used to denote a page, it may still be conveniently used for that purpose. (51) (p) Rule 95. mit it. (Fales v. Hicks, 12 How. Pr. 155 ; Tan Saiit. Bq. Pr. 247, 248.) The court wiLl usually, oq tUe defendant producing a,a atfldavit of merits, give hiin aa oppi>r- tunity to ooiae iu and defend, in which oa-ie the order is uot that the defendant may answer within a certain time, bat that the plaintiff have jadgmeat, unless the de- fondant, within a certain time, give notice of a motion for leave to answer, accompa- nying such notice of motion with a copy of his intended answer. (Van Saul. E:\. Pr. 248.) The proposed answer mast also be accompanied l)y a positive affidavit of merits, or, if it be on belief, stating the grounds for such belief. And to enable the dofendaut to make this motion, the order for jadgmout shonld be withoat prejudice to his right to move the oonrt to put in such answer, and may be upon such terms as to costs, (fee, as the court shall think proper to impose. (Eb. ; Marquisel v. Brig- ham, 12 How. Pr. 400 ; Fleury v. Roget, 5 Sandf 646 ; Broion v. Ward, 3 Duer, 630.) It seems that a plaintiff cannot mo7c for judgment, under section 247 of the Code, luloss the answer, as an entirety, is frivolous. If it contains several defences, some .veil pleaded and some insufflcient, the latter should be demurred to, or a motion inade to strike them out. (Kan ValenY. Lapham, 13 How. Pr. 240.) But if parts only are bad, relief is to be had by a motion of a difFerent character, under sections 152 or 160. Although there may bo no objection to combining both of these applica- tions in one motion, yet in that case whether judgment on the whole an-swer can be granted must depend on whether the parts of the pleading objected to are strickeu out, and if they are, whether the whole answer, as it then remains, be frivolous. 'Lockwood V. Salhon/fer, 18 Ab. Pr. 133.) In Samiiton v. Hough, (13 How. Pr. 14,) .vhere the answer set up four'del'encos, two of which tendered issues with the com- plaint, and two of which, in hypothetioally admitting the averments of the com- plaint, averred matter- in evidence, it was held, first, that the two hypothetical defences mast be stricken out ; and, second, that as there was enough left in the answer to put the plaintiff to proof of his ca-ie, it was unnecessary to allow an amendment. (50) All the pleadings and other proceedings in a cause, and copies thereof, must be fairly and legibly written; otherwise the clerks are forbidden to file the sama. nor will the court hear any motion or application founded thereon. The party on whom the paper is served will be deemed to have waived the objection, however, unless within twenty-four hours after the receipt thereof he returns the papers to the party serving the same, with a statement of the particular objection to its receipt (tiulo 26, Supreme (Jonrt.) "When the papers upon which a motion is made are defaced with interlineations and erasures to such an extent that the court ought not to receive or act upon them, the motion will bo denied, with costs. {Henry v. Bow, 20 How. Pr. 215; Johnson v. Casey, 3 Rob. 710 ; S. 0. 23 How. 492.) (51) Any pleading, &o., exceeding two folios in length, must be distinctly num- bered, and marked at each folio in the margin thereof; and all copies, either for the parties or the court, must be numbered or marked in the margin, so as to conform to 313 141 PROCEEDIXOS TO A DECREE. [Book I. Signmg.'] The answer must be actually sigued by the defendant puv- ting it in, although an answer on oath is waived ; unless an order has been obtained allowing it to be taken without signature. (5') (52) (q) Denison v. Bassford, 7 I'aige, 370. 2 Atk. 289. the original draft, ami to eaoh other. If not sn fnlioed, the clerks shall not file the same, nor -will the court hear any motion or application founded thereon. But un- less the party im wh(nn the pleading, 'i) Davis V. Davidson, (4 McLean, 13;i ;) Bishop v. Wells, (uited ,5 Baav. 83, n. ; 1 Dan. Ch. Pr. 744.) But an omission of tlii) solicitor i>r counsel to sign an answer, will not affect the validit}' of the decree. (Sears v. Hi/er, 1 Paige, 483.) There seems to be nothing in the Code requiring signature by counsel, except the provision in section 156, as to signature by attorney, which may have been iuteudod tu include counsel. 315 142 PROCEEDINGS TO A DECRSE. [Book I. by the CDniplainant. (c) Bat the court will not allow such a course to be adopted where the interest of the plaintiff may be prejudiced by the proceeding, {d) Swearing io.] It is a general rule, that answers must be put in upon oath. (54) But by consent of parties, and an order of court first ob- (c) 2 Ves. & B. 358. (d) Bull v. Grifflo, 2 Anst. 863. (.54) Terification ; when^ NECESsAar ; when it mat be onrTTED ; effect op. "When any pleading i^f verified, every subsequent pleading, except a demurrer, must be verified also. (Code, § 156.) By section 157 of the Code, the verification may be omitted when an admission of the truth of the allegation might subject the party to prosecution for felony, and no pleading can be used in a criminal prosecution against the party, as proof of a fact admitted or alleged in such pleading. And by the act of 1854, (Laws of 1854, ch. 75, ^ 1,) it is provided that " the verification of any pleading, iu any court of record in this state, may be omitted iu all cases where the party called upon to verify would be privileged from testifying, as a witness, to the truth of any matter denied by such pleading." If a verified complaint has been served, the answ'er must be verified, except in the eases mentioned in section 157, and in the act of 1854. If the complaint has not been verified, the defendant may, if he choose, verify his answer, and the effBOt will be that if the answer sets up a counter-claim so as to require a reply, the reply must be verified. (Code, § 156 ; Levi v. Jacqiwjis, 4 How. Pr. 128 ; Van Sant. Eq. Pr. 2iy.) If the complaint is not verified, or the verification is imperfect, the defendant may answer without verification. (Quiit v. Tilton, 2 Daer, 64.-i ; Fitch v. Bigelow, 5 How. Pr. 237.) The privilege which will excuse a party from testifying as a witness, (and there- fore from verifying his answer,) extends to the following oases : 1. Where the an- swer "will have a tendency to expose the witness toa penal liability, or to any kind of punishment, or to a criminal charge. If the fact to which he is interrogated forms but one link in the chain of testimony which is to convict him, he is privileged, and need not explain how he might be criminated by the answer. If the prosecution to which he might be exposed is barred by lapse of time, the privilege ceases, and the witness must answer. So if the prosecution be under a foreign law. 2. Where the answer will subject him to a civil action, or pecuniary loss, or charge him with a debt, or would establish facts which would work a forfeiture of a debt he claims to ))e due him, or subject him to a forfeiture of his estate. (Toorhies' Code, 5th ed. 184; Henry v. Bank of Salina, 1 N". Y. 83; S. C. 5 Denio, 503; King of the two Sicilies V. Wilcox, 15 Jurist, 214; People v. Gai/, 7 If. T. 33i; Van Sant. Bq. Pr. 219 ) If the answer merely has a tendency to degrade the character of the de- fendant, he is not privileged from verifying, except as to collateral matter. (The People V. Gay, supra.) Where a verified complaint alleges matter to the truth of which the defendant, if a witness, would be privileged from testifying, an answer denying such allegations may be served without being verified. {Moloney v. Dowa, 2 Hilt. 247.) If the right to serve an unverified answer be disputed, the question may be brought before the court for determination by a motion tor judgment as upon a failui-e to answer. (lb.) On such a motion the defendant is not required to show that the direct effect of ad- mitting the truth of the matter charged would be to subject him to punishment or liability. It is suflicient that it might have that tendency. N"or is it essential to be shown how it would or might subject him to prosecution or punishment. (lb.) The inquiry is excluded when it appears that the object is to prooare an admission of the party that he has been guilty of an act punishable as a crime, unless an indictment for it would be barred by the statute of limitations ; when, if the matter is material,- the party may be required to answer. (lb.) It seems that if a witness or party has been pardoned for an offence, he is privileged from answering respecting it. So held where the defendant, without leave of the court, served an unverified answer con- taining a general denial of a sworn complaint, charging the defendant with having committed a series of crimes ; the actioa being to recover damages for the injuries to the plaintiff, which were alleged to be the direct result of the crimes specified. ;Ib.) The criterion by which to determine whether a party may omit to verify hisplead- iug, is to inqaire, not whether the pleading may bj used against him in a crimiual Sit; Chlip. 6.] PIiOC£!EDI.yaS TO A DECBES. 1^42 prnseoutiou, but -wliethor, if called as a witaess, to testify to the samj matter oou- tained in the ploadiog, he woald be excused from auswcring. If there is more than oue party iu the aotiou and one of them would bo privileged from testifying, although the others might not be, the answer need not be verified. If any part of the plead- ing would excuse a party from testifying as a witness, the rule is the same. {Clap- per V. Fitzpatrick, 3 How. Pr. 314 ; S. 0. i Code Rep. 69.) The rule is well settled that a witness is not required to give any answer which will have a tendency to ac- cuse himself of any crime or misdemeauor, or to expose him-ielf to any penalty or fon'eiture ; or where, by auswerins, a single link will be added to a chain of testi- mony tending to such a result. "Where any such state of facts exists, the pleading need not be verified. {Henry v. Bank of Sallna, 1 If. Y. 89.) Whare it is evident from the pleading to be answered that an admission of the truth of its allegations might subject the party answering to a prosecution for felony, or might lead to such a result, his geueral atfldavit to that effect should be received in the place of a verifioation of the answer; and he need not state the particular facts and circumstances in his affidavit, which lead him to that conclusion. (Spring- steed V. Roiinson, 8 How. Pr. 41.) If the complaint shows that the defendant would be privileged from testifying as a witness in the matter, the answer may be served without a verification, and need not contain any affidavit stating the grounds for so doing. ( Wheelei- v. Dixon, 14 How. Pr. 151 ; Clapper v. Fitzpatrick, 3 id. 314 ; S. C. 1 Code Rep. 69.) "Where the action is for a divorce on the ground of adultery, and the complaint is verified, the decisions are conflicting as to whether the answer need be verified. la two cases (Enable v. Anable, 'ii How. Pr. 92, and Siocet v. Sweet, 15 id. 169,) it has been held that the answer ought to be verified ; while, in a later case {Olneij v. Olney, 7 Ab. 350), the contrary was decided. (See 2 R. S. 144, § 3J.) "Where there are more defendants than one, each must verify his answer, notwith- standing they have a common defence, whether it be put in unitedly or separately. If only one defendant verify, the answer is good as to him, and cannot be returned. Prompt notice must be given, in that case, by the plaintifli's attorney, that he insists upon an answer verified by all the defendants. He cannot insist on any defect in the verification, after having kept the answer forty days, without notice. {Hull v. Ball, 14 How. Pr. 305.) In Maryland, defendants may answer jointly, or jointly and severally, or separately, but in either case each defendant must swear to his answer, or it will be no answer as to him. {Binney's Case, 2 Bland. 99.) So in Maine. (Rule 7 of Chancery Prac- tice.) In New Hampshire, answers, unless required by the bill to be under oath, need not be sworn to ; and they will then be regarded only es pleadings, and no exception for insufficiency can be taken thereto. (Rule 9 of Chancery Practice.) In California, when the complaint is verified, the answer must be verified also, (Oal. Pr. Act, $ 51 ;) except when the admission of the truth of the complaint might subject the party to prosecution for felony or misdemeanor. (Id. § 52.) "Whenever the defendant would be excused from testifying as a witness to the truth of any mat- ter denied by the answer, he need not verity the answer. {Drum v. Whiting, 9 Cal. 422.) When the state, or the people of the state, or any state officer, is a party, the pleading need not, in any case, bo verified. (Laws of Oal. 1853, 4, p. 261.) Nov in actions prosecuted by the attorney-general on behalf of the state. (Pr. Act, § 55.) The defendant may be allowed to verify bis answer before, or at the trial. {Angler v. Masterson, 6 Cal. 61 ; Arrington v. Tapper, 10 id. 464; Lattimer v. Ryan, 20 id. 628.) By verification of the complaint the plaintiff can prevent the defendant from interposing a general denial in suits on promissory notes, bills of exchange, cfcc, by requiring a sworn answer. {Brooks v. Chilton, 6 Cal. 640.) An unverified answer to a verified complaint may be stricken out, on motion. {Dram v. Whiting, supra.) A verified answer, which in any part, contains a distinct denial of a fact material to the plaintiff's recovery, cannot, whatever its defects, be treated as a nuUity, so a< to entitle the plaintiff to judgment on the pleadings. {Ghirardelli v. McDermott, 22 Cal. 539.) In Kentucky, the answer must be verified by the affidavit of the party. (Code ^ 142.) The answer of a corporation may be verified by any officer or agent on whom the summons has been served, or by its attorney in the action. (Myers' Code, 44.) "When a party is mentally incapable of taking an oath, or physically unable to attend before an officer to do so, his agent or attorney may make it. (Id. Ameud- iiient to 5 611.) A party whose pleading is verified by an agent or attorney may be required to verify in person, upon the opposite party filing an affidavit that he does Dot believe the party whose agent verifies can truthfully verify the pleading himself. 317 ■[42 PROCEEDINGS TO A DECREE. [Book I. tained, an answer may be taken without oath, (b) (55) If the parties ngree, however, that the answer be put in this manner, it is a matter of course for *the court so to order. (/) The order for this pur- [*143] pose should be applied for by the defendant, on filing the written consent of the complainant's solicitor, {g) If applied for on the part of the defendant, it cannot be obtained without such consent, (li) But when it is applied for by the complainant, the defendant's consent is not required; (i) unless the defendant is abroad, in which case the court requires the consent of counsel, and to be satisfied that the person in- structing the counsel to consent is properly authorized by the partj'. (h) Waiver of oath.] The filing of a replication by the complainant will be considered as evidence of a waiver of the oath of the defendant. {J) (e) Fult/>n Bank v. Beach, 2 Paige, 307. G Wend. 4'2, S. C. Hhi.Ie. 22S. 1 Fowl. E.x. Pr. 426. (f) M. ib. (g) III. ib. (h) V. Lake, 6 Ves. 171. v. Gwillim, iil. 285. 2 John. Ch. Rep. 210. (i) Cocliiei- V. Hersov, 18 Ves. 4SS. (k) Bailcv v. De Walkieis, 10 Ves. 441. 18 ifl. 468. (I) 2 Paige, 308. Clbid.) A verification is not required to the answer of a guardian or oommittee de- fending for an infant, or person of unsonnd mind, or imprisoned. Nor in any ea>:e wtiere the admission of the truth of the allegations of the petition or answer might subject the party to a criminal or penal prosecution ; nor to defences founded on the written obligation, release, or written acknowledgment of the plaintiff, unless the writing on Avhich the action or defence is founded is lost, mutilated or destroyed. (Code, § 143.) Each of several joint defendants may be required to verify their an- swer upon the plaintiff filing an affidavit that lie does not believe that those who have not verified can truthfully do so. (Id. Amendment to 5 760.) In Minnesota, when any pleading in a case shall be verified, all subsequent plead- ings, except demurrers, must be verified also. (Public Statutes of 1859, p. .542, 5 73 ) lu Indiana, the answer, in general, need not bo verified by oath; and if so veri- fied has no greater effect than if without oath, except in the following oases : 'Where a writing purporting to have been executed by one of the parties is the foundation of, or is referred to in, any pleading, it may be read in evidence on the trial, against such party, without proving its executiim, unless denied by a pleading under oath, or by affidavit before the commencement of the trial. (2 R. S. 44, } 80; Laws of 1853, p. 102; 11 Ind. 409; Biok Civ. Pr. 88.) In Ohio, every pleading of faet must be verified by the afBdavit of the party, his agent or attorney. (Seney's Code, p. 149, 5 lOo.) A pleading so verified shall not be used against a party in any crinunal prosecution, or action or proceeding for a penalty or forfeiture, as proof of a fact admitted or alleged in such pleading ; and such verification shall not malce other or greater proof necessaiy on tne side of the adverse party. (Ibid.) A verification shall not l)e required to the answer of a guardian defending for an infant, or person of unsound mind, or person imprisoned ; nor in any case where the admission of the truth of a fact stated in the pleading might subject the party to a criminal or penal prosecution. (Id. p. 150, § 107.) The veriticaticm of the pleading does not apply to the amount claimed, except in actions founded on contract, express or implied, for the payment of money only. (Id. 152, « 112.) By the Chancery Code of Illinois, erery answer is required to be verified by an oath or aMrmation. (Statutes of 18o8, vol. 1, p. 141, § 20.) In Kansas, the provisions of the Code, in respect to verification, are the same as those of Ohio. (Code, ii 115, 116, 117, 122.) In Wisconsin, when any pleading is verified, every subsequent pleading, except a demurrer, must be verified also. (Code, J 62.) The verification may be omitted, h.iwever, when an admission of the truth of the allegations might subject the parties to prosecution for felony. And no pleading can be used in a criminal prosecution against the party as proof of a fact admitted or alleged in such pleading. (Id. ^ 6:i.) (55) Coiitee v. Dawson, 2 Bhind. 2t)i; Billingslea v. Gilbert, 1 id. 567. But the rule is otherwise \\\akeii, must certify that it was sworn to, or affirmed, before him and signecl in his presence. The certificate of such officer, signed officially by him, shall be evidence that the affidavit was duly made ; that the name of the officer was written by himself, and that he was such officer. (lb. § 121.) "When the affidavit is made by the agent or attorney, it mn.-j any person being in any foreign country, may be made befde Rep. 70.) Aud the court of com- mon pleas of Kew York has repeatedly held that the service of a pleading al'ter the time allowed by law, although before the adverse party has acted upon the default, is not good. {MoGown v. Leavenworth, 'i E. D. Smith, 24.) If the plaintiff intends to avail himself of an irragnlarity in the service, he should decline to receive the answer, or return it wi'ihiu a reasonable time — i. e., the same day, or the day after, specifying his objections, (Plulips v. Prescott, 9 How. Pr. 438,) and take judgment as for want of an answer. (Stroutv. Ciirran. 7 How. Pr. 3j; Jacobs V. Marshall, 6 Duer, 6-^3.) In McG-own v. Leavenworth, (2 B. D. Smith, 31,) it is said " where a paper is served upim a party who declines to receive it, he is re- quired to return it within a reasonable time. This has never beeu limited to a shorter period than the same day; aud to return a paper within" two hours after the receipt of it is within all the rules of diligence ever required in such cases." The agent employed by the defendant's attorney to make the service is a proper person by whom to return the answer, with the reasons for its rejection. Nor can the defendant's att(n'ney, by sending the answer to the plaintiff's attorney a second time, make it the duty of the latter to return it a second time. {Strout v. Ciirran, 7 How. Pr. 33.) In Jacques v. Greemoood, (1 Ab. 230.) where two joint defendants served a joint answer after the time of one of them had expired, and the plaintiff's attorney returned it, and waited until the other defendant's time expired, aud then entered judgment, it was held regular. A defendant who defends separately, and sets up a claim adverse to that of a co- defendant, is not bound to serve his answer upon such co- defendant, if the title l)y which he claims is set forth in the complaint. {Bogardas v. Parker, 7 How. Pr. 805 ; Leavitt v. Fisher, 4 Duer, 2.) An answer served before receiving a copy of the oimiplaint, is irregular. (Philips V. Prescott, 9 How. Pr. 430.) In California, the time for answering is as follows: I. If service of the sum mous is had in the county where the action is brougbt, within ten days after such service. 2. If the defendant is served oat of the county in which the action is brought, but in the district, twenty days. 3. If served any where else in the state, forty days. (2 Bstee's Prac. 509, 6-15; Cal. Pr. Act, § 25 ) If the service is made by publication, the defendant has forty days to answer after the period for publica- tion expires. (Cal Pr. Act, ^§30, 31.) IVhen a demurrer is interposed and over- ruled, the court may allow the defendant to answer, imposing terms in its discretion. (Cal. Pr. Act. §§ ii. 67; Manmus v. Samhlon, cited 2 Bstee's Pr. 6413.) In such a case the question of time to answer, aud the terms, are cliietly rej^ulated by the rules and discretion of the court, (ThorntoiiY. Borland, 12 Cal. 438,) in which the cause is pending. (Cal. Pr. Act, $ 43 ; People v. Rains, 23 Cal. 12i.) For, if ttie demurrer is deemed frivolous, terms will be imposed before leave to answer is given. Such a rule is reqmred to preven* a demuiTer from becoming a means of delay only; and if the court does not fix the time within which an answer must be filed, the defendant should answer within the same time as in case of a service of a copy of the original complaint. (People v. Bains, supra.) In reference to tbe time within which the answer must be filed, courts will take judicial notice of the territorial extent of the jurisdiction aud sovereignty exercised de facto by their own government, aud of the local divisions of the country into states, counties, cities, towns, &c. (People v. Smith, 1 Cal. 9 ) In Kentucky, in an action prosecuted by equitable proceedings, the defence must be filed on the third day of the term: 1. Where the summons has been served twenty days before the commencement of the term, in the county in which the ac- tion is brought, or in an adjoining cnuaty ; 2. "Where it has been served thirty days elsewhere in the state ; or 3. "Where the defendant has been constructively sum- moned thirty days. (Code of Practice, J 137.) J47 PROCEEDINGS TO A DECREE. [Book I. on a special application for that purpose, on reasonable gronnds being shown, (p) (65) In order to 'obtain such an extension of the time, a (p) Rule 136. In Ohio, the answer of the defendant must be filed on or before the third Saturday after the return day of the summoas, or service by publication. (Seuey's Code, \). 147, J 10;i.) The defendant has the usual time fjir answering after every material amendment, whether that amendment is made uuder sections 134 and l:i.5 of the Code, or in term time, on leave obtained from the court. (Mather v. Gallia Farnace Co. 1 "West. Law Moathly, 331) When service is by publication, the defendant must answer on the third Saturday nest after the day of the last publication of the notice. (Rash, Plead, and Prac. 100.) la Xndiana, if the defendant appo.ir-i to the action, the court, on the plaintiff's mo tiou, will order the defendant to answer the complaint. The order is entered on the record, and is either general, in which case the del'eudaiit mast answer on or before the next calling of the cause, or special, fixing a time when the answer shall be filed. (2 Eev. St. 42, § 68; Bicknell's Civil Prac. Si.) Upon a failure to answer, the court will enter a judgment by default, .substantially a judgment by nil dieit ; unless, for good cause shown, further time be given for pleading, on payment of costs. (2 R S. § 69.) A defendant may be ordered to plead at the next calling of the cause, oi by a given day of the same term, or of the next term, but oamiot be ordered to plead by a given day in vacation. If such an order be made, its efi'ect will be to give the party time until the calling of the cause at the next term. (Bick. Civ. Pr. 83 ; 4 Bid. 466 ; 9 Ind. 304.) In Minnesota, in all actions in the district court, the defendant is required to an- swer the complaint in twenty days after service of the summons; and if the answer is not made and served within that time, or such further time as may be allowed ac- cording to law, the plaintiff may proceed to take judgment against the defendant. (Public Stat. p. 630, § 48.) In Kansas, an answer nmst be filed within twenty days after the day on which the Bummcms is returnable. (Code, $ 113.) In Wisconsin, the answer must be served within twenty days after service of a copy of the complaint. (Code, 5 48.) If the oomijlaiut be amended, the defendant must answer it within twenty days after service of a copy of amended answer. (Id. J 51.) In Illinois, every defendant duly summoned must file his answer at the time to which the process or summons is returnable, or the bill may be taken as confessed. (Chancery Code, § 18 ; Statutes of 1858, vol. I, p. 140.) (65) Extending time to answer. Section 405 of the Code provides that the time within which any proceeding in an action must be had, after its commencement, except the time within which an ap- peal must be taken, may be enlarged. up(ra an affidavit showing grounds therefor, by a judge of the court, or if the action be in the supreme court, by a county judge. The affidavit, or a copy thereof, must be served with a copy of the order, or the order may be disregarded. (See also. Code, ^ 174.) This ii5 the authority under which the time to answer may be extended. And it has been held that an order extending the lime to answer, is an extension of the time to demur. (Brodltead v. Bnxlhead, 4 How. Pr. 30rf.) The only way in which a)i extnusion of time can be procured is by .an express order to that effect, ftiunded upon proper affidavits. (Piatt v. Town-send, 3 Ab. 9.) Kule 30 of the supreme court pravides that no order extending the time to answer shall be granted unless the party applying therefor shall jjresent to the jii.stice or judge to whom the application is made, an affidavit of merits, or proof that it has been filed; or an affidavit of the attorney or counsel retained to defeiul the action, that fnnn the statement of the ease iu the action, made to him by the defendant, he verily bL'lieves that the defemlant has a giiod and substantial defence, upon the merits, to the cause of action set forth in the complaint, or to smno part thereof. And the affidavit must state whether any extension of time to ansH-er or demur has been granted, by stipulati(ni or order, (fb.) An enlargement of the time to answer m- demur, not snpported by an affidavit of merits, nor by an affidavit of the attorney or counsel retained to defend, stating that, from the statemunt of Lhi! case in.ule to him by tin! didendiinl. he verily believes the defendant has a good and substantial deleiice. on the merits, to the cause of ad-, 'i set forth in the complaint, iir t,j s nn i p irt there if. m.u- be disregarded. (Ellis X. Van Ness, 14 How. P.-. .il.!.) Kule 30. which directs that if an oniai-ijement of tim' 333 Chap. 6.] PROCEEDINGS TO A DECREE. 147 motion must be made upon an affidavit showing the necessity for fur- ther time. And farther time to answer, not exceeding sixty days, in case of a resident defendaut,*and not exceeding six months, in case of a non-resident of the state, may also be granted by a vice-chancellor or injunction master, on application and sufficient cause showu to him by affidavit, on such terms and conditions as he may direct. But no order has already been obtained, by order, or by consent of parties, that fact must be ^stated in the affidavit, and section 405 of the Code, operate together, and full etftjot must be given to hoth. (Ibid.) An order extending the time to answer supersedes a motion already noticed to strilte out portions of the complaint. It also operates as a bar to a future motion; unless, by the teruis of the order, the right to make the motion, already noticed, is given. (Marry v. James, 34 How. '-ioi.) "Where an order extending the time to answer is procured without an affidavit of merits, or any such affidavit of an attorney or couusel, as is required by this rule, the order is irregular; and the plaintiff may avail himself of such irregularity, ou a question of suhstituted service, although he might not be permitted to disregard the order if served personally. {Graham v. Pinclcney, 7 Hob. 147; Ellis Y. Van Ness, 14 How. Pr. 313.) An affidavit of merits will be disregarded wlien further time to answer is asked on the part of a defendant who has been guilty of gross laches. {Says v. Berrymaii, 6 Bosw. 679.) The order, if granted by a judge out of court, without previous notice, cannot be to stay proceedings for a longer time than twenty day-i. If tha defendant requires a longer time he should obtain an order to show cause why the time to answer, &o., should not be e.'ctended for the requisite perind, sp.ioil'yiug it, and that the [x-oceed- ings be, in the meantime, stayed. On proof of the service of the order to show cause, the judge, at the time fixed in the order to show cause, if no sufficient cause be shown against it, will grant the absolute order. (Van Sant. Bq. Pr. 175.) Or, the defendant may obtain his first order, ex parte, anrl, at the expiration of the twenty days, apply, on a sufficient affidavit, for another order. (Ibid.) Every affidavit ou which to apply for an exteusi.iu of time, must oonforra, subitantially, to rule 30. If au order has been improvidently granted on a defective affi.lavit which is served with the order, the ccrart or jndge granting such order will set it aside or vacate it without notice. (Id. 176.) And so, also, if after one extension of time au order be made ou an affidavit not stating the fact of the first extension, by stipulation or or- der, it will be vacated without notice. (Ibid.) If the affilavit, or a copy, be not served with the order, it is unnecessary to gat it vacated. In such a case the order is a nullity and may be disregarded, (OoJe, ^ 405.) and the plaiutitf may proceed as though no order had been served. He should, however, immediately return the or- der, or give notice of his intention to disregard it. (Van Sant. Bq. Pr. 177.) After the aiiieiulment of a pleading, the time to answer it is the same number of days from the date of its service as after service of the original pleading ; that is, twenty days, if the service of the amended pleading has been personal, and forty days if by mail. (lb.) If the defendant has inadvertently allowed the time to expire without putting in a defence, he is not allowed, as -a matter of cour.se, to put in an answer or demur at any time before judgment ; but if he desires to answer ho must apply to the court by motion and on notice for leave to do so. (Van Sant. Bq. Pr. 178; Botries v. Fitzger- ald, 2 Ab., jS". S. 354.) By section 174 of the Code, the court may. in its discretion, and upon such terms as may be just, allow an answer or reply to be made after the time limited by that act, or by an order, enlarge such time. It may, also, in its dis- cretion and upon terms, at any time within one year after notice thereof, relieve a party from a judgment, order or other pn)oeeding talcen against him through his L..istake, inadvertence, surprise, or excusable neglect. By section 135 of the Code, a defendant agamst whom publication has been or- dered, or his representatives, on application and sufficient cause shown at any time bef(U-e judgment, maybe allowed to defend the action ; and (except in an action for divorce) may, in like manner, upon good cause shown, be allowed to defend after judgment, or at any time witnin one year after notice thereof, and within seven years after its rendition, on such terms as may be just. 333 147 FROCBBDmOS TO A DECREE. [Book T. extending the time to answer can be granted by an injunction master, or by a vice-cliancellor out of court after the time for answering has expired, or where time has before been granted by order of the court, or by a vice-chancellor or master, or by the agreement of the complain- ant, [q) Tills rule djes not authorize a vice-chancellor or injunction mas- ter to grant a chamber order giving the defendant time to demur. And if a defendant puts in a demurrer after an order for further time to answer, it is irregular, (r) A chamber order, made by a vice-chancellor, giving rq) Enle 125. (r) Bunall v. Raineteaiix, 2 Paige, Sil. A defendant against -^h-om pubUcatioii is ordered, has the right to appear and do- fend, of his own accord, and without any leave of thj court, at any time within twenty days after the time for publicatiou has expired. But if lie wishes to come in, more than twenty days after that time, but before judgment actually entered, he must, as in other caies, malce his affidavit, and show " sufficient cause." (VanSaut. Eq. Pr. 178, 179.) Section 174 applies not only to a personal service of the summons but to a service by publicatiou. On an application uuder it, tlie affidavit must show the mistake, oi other excuse offered ; and in addition tbere must be an affidavit of merits, or tho sul)stauoe of the answer or defence must be stated. (Id. 180.) It seems to be always in the sound discretion of the court to grant or refuso an application of this liiud. (See Mann v. Provost, 3 Ab. 44(i; Lynde v. Verity, 3 Ho-w. Pr. 350 ; Grant v. MaCaughUn, 4 id. 216 ; Montgomery v. Ellis, 6 id. 3-J6.) And » reasonable excuse will, at all times, be sufficient, and sometimes even a slight excuse to let in a party to defend, on terms, (Allen v. Ao'.cley, 4 How. Pr. 5,) unless au un- consciejitious defence is sought to be set up ; iu which case the court will not relieve the party iu default, {King v. Merchants' Exchange Go. 2 Saudf. 693,) except upon the terms that such defence, e. g., usury, or the statute of limitations, be not set up in the answer. (Allen v. Aalcley, snpra.) If the defendant fails to answer in the time specified in the summons, it is not au unsound exorcise of discretion iu the court to refuse him leave to tile an answer which does not show a meritorious defence. (Hallowell v. Page, ;i4 Mo. ,590; Page v. Page, id. 593; Newson's adm'r v. Ran 18 Ohio Eep. 240.) Au order staying the plaintiff's proceedings will not extend the time for the de- fendant to answer. That time is fixed by statute and can only be enlarged by con- sent or by au order for that purpose. (MoG-own v. Leavenworth, 2 B. J). Smith, 24.) Nor does an order for a bill of particulars, accompauied by a stay of proceedings, en- large the time to answer. (Piatt v. Toivnsend, 3 Ab. 9; S. C. 5 Duer, 668.) When proceedings are stayed until the decision of au appeal, sucli stay does not extend the time to answer beyond the time when the appeal is decided. (Petrie v. Fitzaerald 2 Ab., ¥. S. 354.) In cases where service by mail may be made, an order extending time to answer, mailed on the last day, is sufficient to prevent the plaintiff from entering a regular judgment as upon failure to auswer. (Sohnhardt v. Both, 10 Ab. 203.) Tiiou"'h de- fendants show no excuse for not earlier attending to the putting iu of an answer and there is some color for supposing their object to have been delay, yet when they are strictly regular in the service of an order extending the time to answer, they are en- titled to the benefit of the .order. (Ibid.) Additional time to auswer, granted by order, does not commeuoe to run until tho expiration of the time so extended. Thus, where the time to answer would expire on the 8th of October, and ou the 1st of October an (U-der was granted allowiu" twenty days' additional time to auswer, it was held that the time to answer was thereby extended until the 23th of October. (Sekenck v. McKie, 4 How Pr 246 • S. 0. 3 Code Rep. 24.) ' ' "Where a stipulation enlarges the time to answer, and also gives the right to make such application as shall be advised, it reserves the right to move to strike out por- tions of the complaint. (Lackey v. Vanderbilt, 10 How. Pr. 155.) But an order extending the time to auswer operates as a waiver of all objection to the complaint by the party obtaining it, and as a bar to a future motion for any alteration of the complaint by the party obtaining it, unless the right to make such motion is reserved. 334 Chap. 6.] PROCEEDINOS TO A DECREE. 5 47 farther time to answer, bat not entered in the miuntes of the court, is a mere nallity, when not authorized by tlie above rule, (s) The defend- ant is not entitled to an ex parte order for farther time to answer, be- yond the time prescribed in the order of the coart, apon overruling a plea or demurrer, {t) Therefore, where a demurrer has been overruled on argumont and the defendant ordered to put in his answer in twenty days and pay the costs, or that the bill be taken as confessed, an ex parte order extending the time to answer is irregular. («) An order for further time is usually applied ior ex parte. But where the application is made after the time has expired, or after a former order for time, notice of it should be given, (v) By the Irish practice, a notice of an application for time to answer, and an affidavit filed in support of it, prevent all farther proceedings by the complainant until the motion is disposed of by the court, (w) A defendant who wishes farther time to put in his answer, must make (s) Hunt V. Wallia, fi id. 371. (t) Trim v. JJivker, Tiir. & Kuss. 253. (11) llurd V. Haviies, in Chan. July 8th, 1842. fv) 1 Hoff. Cli. Pr. 229. 1-2 Ves. 6«. 19 id. 112. (wj Oimsby v. Palmer, 1 Hogan, 191. So where the extension is gi-anted bv the adverse party. {Bowman v. Sheldon, 5 Sandf. 657; S. C. 10 N. T. Leg. Obs. 333.) Where an order overruling a demiuTer requires the defendant to put in his ans-wev in a specified time, and pay the costs, or that the bill he taken as confessed against him, a subsequent ex parte order extending the time to answer is irregular. (Surd V. Haynes, 9 Paige, 604.) In Kansas, the ocrart, or any judge thereof, in vacation may, in his discretion, and upon such terms as may be just, allow an answer to be put in after the time limited by the Code. (Code, § 114.) In Illinois, if the defendant fails to file his answer at the time the process or sum- mons is returnable, the bill may be takeu for confessed ; but, for good cause shown, the court may extend the time for answering, and the court may thereupon enter an interlocutory decree, which may be made absolute at the next term, and carried into effect as other final decrees. If the defendant shall appear at the next term, and oft'er to file his answer, the court may permit him to do so, upan his showing suffi- cient cause, and paying the costs. (Chancery Code, § 18 ; Statutes of 1858, vol. 1, p. 140.) In Kentucky, the court may, for good cause shown, extend the time for filing an answer to some subsequent day in that or the next succeediug term, upon payment of costs ; (Code, J 140 ;) or allow an answer to be made after the time limited by the Code has expired. (Id. 4 161.) In Ohio, the court, or the judge thereof in vacation, for good cause shown, may extend the time for filing an answer, upon such terms as may be just. (Seuey's Code, § 104.) It is said that the time for answering ought not to be extended with- out notice, where it will operate as a continuance of the cause. The unexpected absence of a party or counsel at the time for filing the answer, or where papers, with- out which the party cannot answer, cannot yet be obtained, would be good ground for extending the time. (]S"ash's Plead. & Prac. 100.) In Wisconsin, under section 303 of the Code, the time for answering may be en- larged by a judge of the court, or court ooinniissionei-, or by a county judge, upon an affidavit showing grounds therefor. The affidavit, or a copy thereof, must be served with a copy of the order, or the order may be disregarded. In Minnesota, the answer must be made and served within twenty days after ser- vice of the summcras, or such further time as may be allowed by law. (Public Statutes, 1859, p. 630, J 48.) 335 148 I'lmcEKnr.xGs -co A DECREE. [Book r. [*L4S] *hi3 iipplicntion before an sttaclimeiit has beca issued against him, for want of answer; otherwise he will be ia contempt and will not be allowed to make it. [x) Having thus gone through with an answer in its most usnal shape, and considered its nature and uses, its form, the engrossing of it, the numbering and marking of the folios, signing, swearing to, endorsing, filing and serving, and the time within which it must be put in; we now propose to direct the reader's attention to the practice in relation to answers in certain special cases, and upon some particular points not before adverted to. Anstoer ly attorney.^ An answer by an attorney in fact will in some cases be allowed to be put in ; as where the defendant has gone, or is resident abroad, and has given a general power of attorney to defend suits, &c. {y) But this cannot be done under a general power of attor- ney to act relative to the management of an estate, even in a suit which relates to the estate, {z) By the English practice the answer in such cases is put in without any signature, and the power of attorney is re- cited in the order; (a) but by the practice in this state the answer is signed by the attorney, and a copy of the power is annexed thereto. (J) Answer of an infant.J Where an infant is defendant, a guardian ad litem must be appointed for him, by whom an answer for the infant must be put in. The manner of procuring the appointment of the guardian ad litem has been already pointed out, ante p. 83. (66) In most cases the guardian puts in a mere general answer, submit- ting the rights of the infant to the court. But he is bound to ascertain what are the legal and equitable rights of his ward ; and if a special answer is necessary or advisable for the purpose of bringing such rights before the court, it is his duty to put in such an answer. If the infant is a mere nominal party, or has no defence against the complainant's claim, and no equitable rights as against his co-defendants, which ren- der a special answer necessary, the general answer will be sufl&cient. (c) It is the duty of the court to see that the rights of an infant are not prejudiced or abandoned by the answer of his guardian, {d) The answer, in cases where an oath is necessary, is to be sworn to by (X) Taylor v. Fiaher, 6 Sim. 566. (y) Bayloy v. De Walkiers, 10 Ves. «1. Harding v. Harding, 12 id. 159. 2 Joliiis. Ch. Kep 240. (z) Rogers v. Cniger, 7 John. 558. (a) 10 Ves. 441. (b) Diiinond v. Magee, 3 John. Ch. Kep. 240. This was a suit in which a discovery was not desired. (c) Knickerb.icter v. De Freest, 2 Paige, 304. (d) B.irret t. Oliver, 7 GiU & John. 1 II. (66) In the United States courts, guardians ad litem, to defend a suit, may be ap pointed by the court, or by any judge thereof, for infants, or other persons who are under guardianship, or otherwise incapable to sue for themselves. (Equity Rule 67 ) 336 Chap. C] PROCEEDINGS TO A DECREE. 149 *fche guardian, and is termed his answer, and not that of the [*149] infant, (e) For which reason the infant is not bound hy such answer, and it cannot be read against him ; as the infant may know nothing' of the contents of the answer put in for him, or may be of such tender years as not to be able to judge of it. (/) Therefore it would be us>.'lej> and occasion unnecessary expense to call upon an infant to put in a full answer to the complainant's bill. It is accordingly held, that ex- ceptions will not lie to the answer of an infant, for insufiiciency. ( I ) But after he becomes of age he may, by supplemental bill, be compelled, to answer, and make a discovery, (m) If the guardian is a co-defendant, he need only sign a joint answer once ; as the caption expresses it to be the answer of the guardian in both capacities. (?t) The general saving at the beginning, together with the denial of combination, at the conclusion, common to all other answers, are omitted in an answer put in for an infant by his guardian; for he is entitled to the benefit of every exception which can be taken to a bill, without expressly making it; and he is considered incapable of the combination charged. The general traverse is also left out of an infant defendant's answer, because it cannot be excepted to for insuf- iiciency. (o) Although an infant cannot be called upon to put in a full answer to the complainant's bill, yet he may state in his answer anything which he means to prove, in the way of defence, {p) Where a general answer has been put in for an infant defendant by his guardian ad litem,, the infant, upon his becoming of age, and before decree, is entitled, as a matter of right, to an order allowing him to put in a new answer, upon his showing, to the satisfaction of the court, that anew or further answer is necessary to protect his rights, {q) But he is entitled to the benefit of this privilege only for the protection of his own rights, and not as a means of injuring the case of his adver- sary without benefiting his own. {qq) *An infant wishing to make a new defence must apply to [*150] the court as early as possible after attaining the age of twenty-one ,• for if he is guilty of any ladies, his application will be refused, (r) Isor (e) Wrotteslev v. Bendisli. S P. Wms. 237. Rogers v. Cruder, 7 John. 581. Cartli. 79. 3 Mod. 2.58. SSwanst. 375. 2 Stark, 366. Hindc, 241. 1 D.'tn. 233, 2;i5. ( f) Irt. ib. Stephenson v. Stephenson. f> Paige. 353. (J) Strndwiok v. Pargiter, BnnI). 338. Coijeland v. Wheeler, 4 Bro. C. C. 256. 13 Ves. 274. (m) Marquis of Waterlord v. Knight, il Bligh. 307. (n) Anon. 3 Jac. & W. 553. 2 Ves. & B. .153. [o) Mitf. 254. ip) Per Lord Ch. Baron Kiehards in Att'y Gen. v. T^atnbirth, 5 Price, 308. Ig) Stephenson v. Stephenson. 6 Paige, 353. James v. James, 4 id. 115. Kelsall y. Kelsall, 2 My. & Keen, 409. {qq) Malone v. O'Connor, 2 Drn. & Walsh, 491. (rj Mason v Dabow ct al. 2 Hayw. i7S. Vol. 1—22 337 1^0 PEOCEEDI?fGS rO A DECREE. [Book I will it be granted on his coming of age, without an affidavit that he can now make a better defence than that previously put in. (s) An infant may also apply to put in a better answer at any time dur- ing the suit, and before coming of age, provided there is a foundation for it upon the merits, {t) And he may, by petition merely, stay pro- ceedings in the cause until he is prepared with his answer, {u) The answer of an infant by his guardian ad litem is considered a pleading merely, and not an examination for the purpose of discovery. It is not evidence in his favor, therefore, although it is responsive to the bill and sworn to by the guardian ad litem, {v) 'Sov, as has been already stated, can it be read against him. (?«) And a complainant cannot, by any form of pleading, compel an infant to become a witness against himself, [tvv)) The otlier formalities in taking the answer of an infant are the same, mutatis mutandis, with those observed in putting in the answer of a party under no incapacity, [x) Answer of a married woman.] It is a general rule that in a suit against husband and wife, the husband must procure the joint answer of himself and wife to be put in, or the bill may be taken as confessed against both. {xx){%l) And if either party wishes to answer sepa- rately, an order should be first obtained allowing it. {y) But where the wife lives separate from her husband, and is not under his control, the court will, upon motion, accompanied by an affidavit verifying the circumstances, give the husband leave to but in a separate answer. {£) Upon the same principle, process of contempt will be stayed against the husband, for want of his wife's answer, on his making an afiBdavit that she has left him and that he has no power over her. (a) In a case where the husband, who liad put in a separate answer, moved that he [*151] might be at *liberty to answer separately from his wife, and that he might not be liable to process on account of his wife not put- ting in an answer, on an affidavit that his wife lived separate and apart from him, and that he had no control or influence over her, the court held that, as he had already put in a separate answer, there was no ne,- («) liennott v. Leigli, 1 Dick. 89. Cecil v. T^orrl Siilisbnry. 2 Vorn. 324. i«l IJemiett v. Lee, 'i Atk. -187, 529. Sa\aKe v. Cai-i-oll, 1 Ball & B. 549. ] Fowl. Exoh. Pr. 170. («) Shielii's heirs v. IJryant. 'iMarsli. liep. 344. («) liulkley V. Van Wyck. 5 I'aige, 53 . Stephenson v. Stephenson, 6 Paige, 353. («7) Steithenson v. Stephenson, supra. {mw) Bnlkley v. Van W"yck, .siipra. (x) Hinde, 242. i.xx) Bilton V. Bennett and wife, 4 Sim. 17. See Leavitt v. Crnger and wife, 1 Paige 421 [ij) Id. lb. o > • (al Chambers v. Bnll, 1 Anst. '269. Gavev v. Whittingham, 1 Sim. & Stu. 163. («) Leithlv V. Taylor 1 Uick. 373. Lloyd v. Basnet, id. 143. (67) Id an action against husband and wife, wbere the action concerns the sepa- rate estate of the wife, she may answer separately, as a matter of course. (Harlav V. SUter, 18 How. Pr. 147 ; S. C. 9 Ab. 40U.) •' 338 Chap. 6.] PRQCEEDTXGS TO A DECREE. 251 oessity for that part of the motion ^¥hich related to the answer, but made the order as to the hitter part, (h) Under ordinary circnmstances, however; a husband cannot answer separately from his wife without the sanction of an order for that pur- pose; and if he does so, his answer, by the English practice, will be treated as a nullity and the bill may be taken as confessed, (c) By our practice, putting in such an answer is only considered an irregularity; and the court, on motion, in such a case, will order the answer to be taken from the files, {cc) But as long as it remains upon the file, it cannot be treated as a nullity, by the opposite party. If a wife appears and afterwards absconds, process will be stayed against the husband and liberty given to sue out a sequestration against the "wife, {d) And if a married woman obstinately refuses to join in a defence with her husband, the husband may in like manner be allowed to de- fend hinlself, and the complainant must proceed separately against the wife.(c) As the husband may in certain cases be allowed to answer separately from the wife, so the wife may, upon her own application to the court, and for good cause shown, obtain an order to put in her answer inde- pendently of her husband. (68) Therefore, if she cannot, in conscience (6) Berry v. Cane, 3 Mad. 473. (c) Bilton v. Bennett, i Sim. 17. \cc) IJeavitt-v. Crnger,-! Paige, 421. (d) Samson v. Overton, 1 Dick. VXi. (e) Paine v. — , 1 Ch. Gas. 2a«. Chambers v. Ball, 1 Aust. 2S9. Biinb. 17. 1 Dick. 13. Lea vitt V. Orttger, 1 Paige, 121. (68) "When a married woman is a party, her husband must be joined with her; ex- cept that when the action concerns her separate property she may sue alone, and when the action is between herself and her hu.sbaud, she may sue or be sued alone. In no case need she prosecute or defend by a guardian or next frieud. (Code, j 114.) In Kentudky, if a husband and wife are sued together, the wife may defend for her own right; and, if the husband neglects to defeud, for his also. (Code of Civ. Prao. 4 50.) And, where a husband, being a father, has deserted his family, the wife, be ing a mother, may prosecute or defend in his name, any action which he might have prosecuted or defended, and shall have the same powers and rights therein as he might have had. (lb. j 51.) It has been held that where husband and wife are sued jointly, the wife will be allowed to defend-separately when she alleges an equitable right to an allowance out of the property sought to be subjected. {Ferris v. Parsons, cited Myers' Code, p. Section 29 of the Ohio Code is the same as section 50 of the KentueJcy Code, supra. It lias been decided, that under section 29, the wife may defend in her own right, in ) cases where her separate rights as distinct from those of her husband, are recognized and passed upon by courts. Her inchoate right t)f dower in premises mortgaged by her and her husband ; her interests and rights in her separate property, aud in tlie property which came to the husband by her; are all the subject of frequent adjudi- cation, and in such cases she may defend in her own right.. (CooUdge and wife v. Paris, 8 Ohio St. Kep. 694.) But where the action involves no separate right of the wife, and no order or judgment can be rendered, except a joint one, ali'ecting both jointly, section 29 does not apply. In Oratli v. iVirthwein (1 Handy, 19), it is held that a mere contingent right of the wife to dower is no ground for joining her 339 ]^51 PROCEEIJlJS'aS TO A DEUREE. [Book I consent to such an answer as is drawn up by lier husband, she is nox, obliged to submit to it, but upon application to the court she may be considered as a separate person, and will be allowed to answer sepa- rately from her husband. And if a husband insists that his wife shall put in an answer contrary to what she believes to be the fact, and by menaces prevails upon her to do so, this is an abuse of the process of the court, and he may be punished for the contempt. (/) The cases in which a woman usually obtains an order to answer sep- arately from her husband, are those in which she claims an adverse interest — where husband and wife are made defendants in right of the wife — where she lives separate from him, or disapproves of the defence he intends to make — or where the husband is out of the jui'isdictiou. {g) [152] So *where she denies the marriage with her alleged husband, she will be allowed to put in a separate answer, but without prejudice to any question as to the validity of the marriage. (Ji) As a general rule, if a fewe covert wishes to answer separately, she must apply to the court, upon motion or petition, for an order permit- ting it; and if her separate answer is put in without such an order, it may be taken off the file, [i) But if her separate answer be put in without such an order, and the same be a fair and honest answer and deliberately put in, with the con- sent of the husband, and the complainant accepts of it and replies to it, the court will not, on the motion of the wife, or her executors, set (/) Ex parte Halsom. 2 Atk.50. 1^1 Aniin. 2 Kq. Ca. Abr. 6S. 1 Dan. 210. 1 Smith. 253. Wliere the hiiab.and is out of the jurisdiction, the cumplainaiit mav sometimes compel tlie wife to answer separatei}'. 1 Smitli, 2H. in. 1.) ill) VVyl)onrn v. Blount, 1 Dick. 155. Ill Ferine v. Swaine, 1 John. Ch. Rep. 24. Prac. I!eg. 53. with her husband in an action for the specific performance of a contract for the sale of real estate. In California, if husband and wife be sued together, the wife may defend for her own right. (Cal. Pr. Act, § 8.) So also in loioa (Laws of Iowa, $ a, 774). Idaho (tiaws of Idaho, § 8). Arisona (Code, §8;) and Nevada (Code, § 8). In Califor- nia, the wife may appear in, and defend, an action separately from her husband. {Alderson v. Bell, 9 Cal. 315 ; approved in Leonard v. Townsend, 26 id. 445.) Where the defence of the wife is a special one, she can defend for her own right as %vell when sued jointly together, as if the trial were separate. (Deujirez v. Deuprez, 5 Cal. 587.) To enable her to defend in her own right, she mast possess, as defendant, the rights of a, feme sole. (Alderson v. Bell, 9 Cal. 315 ; Leonard v. Townsend. 26 id. 445.) lu Minnesota, when the action is between husband and wife, the wife may be sued alone. But when her husband is not joined with her she must prosecute or defend bv her next friend or guardian, except iu actions between herself r.nd her husband. (Pub. Stat, of 1859, p. 5:5,% J 30.) In Kansas, any woman may, while married, sue and be sued, in all matters having relation to her property, person or rep-itation, in the same manner as if she were sole. (Comp. Laws of 1862, p. 699.) In Indiana, when husband and wife are jointly sued, and the action relates to tho wife's separate property, she may defend iu her own right, and if he neglects to de- feud, she may defend in his right also, {i K. S. 29. } 9.) 340 chap. G.J PROCEEDIKGS TO A DECREE. \q2 it aside, {k) So ^f a husband files a bill against his wife, he admits her to be a/e7Me so?e, and she must put m her answer as such; and no order is necessary to warrant her in so doing. (?) And if she does not put in her answer, in such a case, the husband may obtain an order to compel her to do so. (m) A married woman obtaining an order to answer separately, becomes a substantial party to the suit, is entitled to the usual time to put in her answer from the date of the order, and is not bound by any order obtained by her husband on behalf of himself and her. {n) Upon ob- taining an order to answer separately, she renders herself liable to pro- cess of contempt in case she does not put in her answer pursuant to the order, (o) The application for an order that the wife answer separately, may be made either by the wife herself, or by the complainant, or the hus- band, {p) The application by whomsoever made, should be upon notice, {q) "Where husband and wife are defendants, it is necessary that the wife as well as the husband should put in a full answer. But she will not be compelled to answer to any thing which may expose her to a for- feiture, (j) Nor is she obliged to discover whether she has a separate estate; unless the bill is so framed as to warrant the court in making a *decree against siich separate estate. (s)(69) Neither will [*lo3] she be compelled to make a discovery wliich may expose her husband to a charge of felony ; and if called upon by the bill to do so, she may demur, (t) The answer of the wife cannot be used as evidence against her hus- band. Therefore where a bill was filed before the statute of frauds, against husband and wife, to discover a trust in a matter in which she was concerned as executrix, and they disagreed in their defence and put in separate answers, the husband denying and the wife admitting the trust; at the hearing, the complainant having proved the trust by one witness only, insisted on the wife's confession in her answer ; but (ft) Duke of Chandos v. Talbot, 2 P. Wms. 371. (J) Ex parte StraiiKCways. 3 Atk. 478. (ml Aiiislie v. Medlicott, 13 Ves. 266. (n) Jackson v. Haworth. 1 Sim. & Stn. 161. (o) Powell V. Pi-entiee, Kirtjrw. P. C. 258. (p) Dick. 155. 1 Ves. sen. 383 1 Smith, 254, n. (1,» (8) Gary v. Whittingliam, 1 Sim. & Stii. 163. (r) Wrottosley v. Beuriish. 3 Peer Wms. 235. (S) Francis v. Wigzell, 1 Marl. 268. (t) Cartwriglit v. Green, 8 Yes. 405. (G9) Where the complaint, in an action to charge the separate estate of a married woman, alleges her coverture, an answer denying that she is a mamed woman, ur has a separate estate, is insufficient since the law of 1850. (Aitken v. Clark, IS Ab. b'4S, n.) 341 153 PROCEEDINGS TO.A DECBEE. [Book T, it was held that her answer could not bind her husband, and the bill was dismissed, (m) In Rutter v. Baldwin, {v) the court agreed clearly that a wife can never be permitted to answer or to give evidence in any way to charge her husband ; and that where a man marries a widow, executrix, &c., her evidence shall not be allowed to charge her second husband, (w) But in that case the wife having held herself out as a feme sole, and treated with the complainant and other parties to the cause who were ignorant of her marriage, in that character; and it having been proven that on some occasions the husband had given in to the concealment of the marriage, the court allowed the answer of the wife to be read as evidence against him. But the separate answer of a married woman may be read against herself, notwithstanding her coverture. (a;)(70) And where husband and wife are defendants in a suit relatiug to the personal property of the wife, and they put in a joint answer, it may be read against them for the purpose of fixing them with the admissions contained in it; but where the subject matter relates to the inheritance of the wife, it cannot ; [y) such joint answer being considered the an- swer of the husband alone, {yy) And where the husband does not an- swer, the answer of the wife, in a case relating to her inheritance, is no answer; and if the husband will not appear, no decree can be had against her for her inheritance, (z) If the wife is absent from the state, the husband may, on application to the court, have an order for time to issue a commission to obtain [*154] her *oath to the answer ; and if she refuses to answer, the bill may be taken as confessed against her. («) Where the complainant seeks relief out of the separate estate of the wife, however, the subpoena must be served upon her personally,' and she may put in a separate answer ; the husband in such a case being considered only a nominal party. And if the wife is absent, a publica- tion of the order to appear, under the statute, must be resorted to, against her. (5) («) Anon. 2 Ch. Ca. 39. 6 Ves. 322. ]5 id. 159. (V) 1 Eq. Ca. Abr. 227. (Ml) Victe Cole v. Graj-, 2 Vern. 79. X) CoUrington v. Eiirl ol'Shelbnrnc, 2 Dick. 475. -Le Xeve v Neve, 3 Atk. C4S (I/) Evans V. Cosan. 2 P<>or Wms. 449. Merest v. Hodgson., a Price, i563. 2 My. & Keen 678. (yy) El.eton V. Wood, 2Mv. ftKoen, (i78. («) Ward V. Meatli. 2 Cli.'Cii. 17.1. 1 Eq. Ca. Abr. 65. (a.) Le.avitt t. Crnger, 1 Pnige, H\. (6) rergiison v. Smith, 2 John. C'li. 139. 1 Paige, 422. 1 Hoff. Ch. Pr. 232. (70) In an action relatinft to the separate estate of the wife, her answer, jointlr ■n-ith her husband,, atlinitting tlie Hlh'gations of the complaint, will act warrant a de- cree against her withont pmof. ( Bicli. Cir. Pr. 484; 8 Bid. 189.) And if, in such' a ca.-!e, she makes default, there can be no decree against her without proof. (3 lud.' 43(j.) Chap. 6.J PHOVEEDIXGS TO A DECREE. 154 A joint answer of husband and wife must be sworn to by both, un- less the complainant consents to receive such answer upon the oath of the husband only. (c)(71)(73) Ansioer of an idiot or lunatic] The answer of an idiot or lunatic is similar to that of an infant, and should be sworn to by his commit- tee, in the same manner as the answer of an infant is verified by his guardian ad litem. (73) Whenever a suit is brought against an idiot or lunatic respecting his estate, his committee, if he has one, is a necessary party to the suit, (d) ' (c) New York Chemical Compauy v. Flowers et iix., 6 Paige, 651. (d) Milf. Eq. PI. 4. (71) Leavittv. Cruger, (1 Pai^e, 422.) In Reed v. Butler and wife (2 Hilt. 589), an actiiia brdught by tho plaintiii'as reueivov in supplemuntary prooecdiug-i instituted by a judgment creditor of tlie defendant, Tliomas Butler, to set aside a 0(iU7oyauoe of certain property to the defendant Harriet, hi)i wife, on the gi'oaud that it was pur- chased and paid for by him, and with his money, and therefore tho couveyanoo to the wife was void as to the husband's creditors, the defendants answered jointly deny- ing that the property was purchased and paid for by tho husband, and claiming the property as the separate estate of the wife. And she alone verified the answer. It was held tho answer was not sufficiently verified. That if it was relied upon as the answer of both, it must be verified by both, because they were not united in interest — which is the only case under the Code where a joint answer can be verified by oue of the parties only. In Toimffs v. Seelcjj (12 How. Pr. 335), it was also held that in an action against husband and wife, where her interest is separate, the answer must be verified by both, if relied on as the answer of both. (72) In Ohio, when the action is between husband and wife, the wife may sue or be .sued alone ; but in every such action, other than for a divorce or alimony, she must prosecute or defend by her ne.tt friend. (Oiv. Code, 5 28.) {7 A) "When a person of weak or unsound mind, not so fouiid by inquisition, makes default in appearing or answering, the plaintiff may have a guardian assigned to him for those purposes; and the recent orders in England concerning tbe answers of in- fants, apply in general to persons of unsound mind not found so by inquisition. (1 Dan. Ch. Pr. 3d Am. ed. 76ti.) The appointment is made upon petition on behalf (if the person of unSound mind, supported by an affidavit stating the particular circum- stances of the party and the necessity for a guanliau. (Ibid. ; Piddocke v. Smith, 9 Haro, 395.) Superannuated persons, on proof of imbecility, may appear and answer by gnardian. (Mattorof Barber, 2 John. Ch. 235. See Miirkle v. Mitrkle, 4 id. 168.) In Kentacki/, it is provided by the Code that it shall ba the dnty of the committee of a person of unsound mind to file an answer denying the material allegations of the petition which are prejndicial to such defendant. (Code, § 131.) "The Ohio Code contains the same piMvision. (Code, $ 100.) The answer of a guardian de- fending for a pers(m of unsound mind need not be verified. (Id. § 107.) In Cdfa/yr/iMi, upon petition under oath, by any relative or friend of any insane person, or any person who, by old age or other-cause is mentally incompetent, the probate judge shall, after hearing and examination, appoint a guardian of his person and estate. (Gen. LawsofCal. §§ 3,373,4.) And every such guardian shall ap- pear for and represent his ward in all legal suits and pi-ocoedings. unless another per- son is appointed for that purpose, as guardian or next friend. (Id. § 3, 377.) In Alabama, a person may sue an adnlt lunatic for necessaries furnished him. and is entitled to pi'oceed in the case upon tbe appointment of au attornuv for the dijfen.l- ant, although there is no guardian art litem. (Ej; parte Xorthington, 37 Ala. 496.) In Indiana, it is the duty of the committee of a person of unsound inind to tile an answer denying the material allegations of the complaint priijudieial to such defend- ant, withim't oath. (2 Rev. St. 42. ^ 6j ; Bickiiell's Civ. Pr. p. 50:!.) When it is sug- gested to the court that the defendant is an ailult Iniiatic without a gnardian, it has been the practice andor-the Revised Statutes of 18>2, without objection, to have a guardian ad litem, or committee, app liiited by the court to represent him. (Bick. Civ. Pr. 504.) A gnardian. in general, cannot be sued alone, bu"" the person of uu- 8ound mind must be made defendant with him. (Id. 25, 26.) "43 254 PROCEEDINGS TO A DECREE. [Book I. And by the English practice the commitbee applies by motion or peti- tion, to be appointed guardian of the idiot or lunatic, to answer and do- fend the suit ; which is generally ordered of course, (e) If it happens, however, that the idiot or lunatic has no committee, or the committee has an interest opposite to that of the idiot or lunatic, an order may be obtained for appointing another person as guardian, to defend tlie suit for him. (/) And where the defendant is represented to be in a state of incapacity, the court will not permit his answer to be received with- out oath and signature ; though he is a mere trustee and without inter- est; but will appoint a guardian by whom he may answer, [g) Answer of a foreigner^] In the case of a foreigner not sufiBcientiy versed in the English language to answer in that tongue, an order of course must be obtained, upon motion or petition, for an interpreter ; and the answer being engrossed in the foreign language, a translation thereof miTst be made by the interpreter, and annexed. The foreigner must be sworn to his answer, in order to which, the interpreter attend- ing is previously sworn to interpret truly, and conveys to the defendant the language of the oath. At the same time he swears to the transla- tion as true and just to the best of his ability ; and the jurat is adapted thereto. (A) [*lo5] *Where the answer is taken abroad, in a foreign language, the court will order it to be interpreted by a sworn interpreter and the translation to be filed with the original, (i) And it has been decided in Ireland that the answer of a foreigner who does not understand English must be sworn in the language he speaks, and be filed with an Englisli translation; and if he files an answer in English only it will be taken ofi" the file, (k) Answer of a deaf and dumi person.] The same course of proceed- ing seems proper where the defendant is deaf and dumb, (l) In a case however, which occurred in 1745, a different course appears to have been adopted. The defendant being deaf, and incapable of giving in- structions for his answer, the court ordered a commission to issue for taking the answer in the old way, with the bill annexed, for the com- missioners themselves to endeavor to take the answer, (m) Ansiver of a Hind person.] Where a defendant is blind, some other person must swear that he has truly listinctly, and audibly read over (e\ Hinde, 'J!i2. 1 Dan. Ch. Pr. 219. (/) Mitf. m. (o\ Wilson V. Grace, 14 Ves. 172. (Ai Hindu's Ch. 2-2S. (i) Bank v. Siilomons, 1 Fow. Ex. Pr. 427. Simmonds v. Du Barre, 3 Bro. Ch. R. 26S. (k) Ha/es v. l,equin. 1 IIoq:aii, 274. (V\ Keynolils v. Jones, cited 2 l)au. Ch. Pr. 280. Im) Gregory v. Weaver, ibid. a-l:4 Chap. 6.J PROCEEDINGS TO A DECREE. 255 the eonteuts of the answer to the defendant. The defendant must also swear to the answer. (») Answer of an illiterate ][)erson.\ Where an answer is put in by an illiterate person, who can neither read nor write, by the practice of the court of Exchequer in England the solicitor for the defendant must make an affidavit that he has read over the answer to the defendant, and that the defendant understood it. And this should be stated in the jurat. And in a case where, instead of the above form, the jurat stated (the answer having been taken by commission,) that the answer had been read over to the defendant by one of the commissioners, and that the defendant declared that he perfectly understood it, the answer was considered irregular, and was, upon motion, taken off the file, (o) So, where an answer by an illiterate person was not accompanied by any affidavit of his solicitor as to its having been read over to him, &c., and the jurat did not express that he liad affixed his mark in the presence of the commissioners, it was ordered to be taken off the file for irregularity, {p) In the court of chancery, however, an affidavit by the solicitor is not required ; but in the jurat returned in that court, it is expressly stated that the party made his mark in the presence of the commissioners. The form of the jurat in such cases is as follows : •'•■ This answer was *taken, and the above named defendant C. [*156] D. has duly sworn to the same upon the Holy Evangelists, at &c., this day of [the same having been first read over and ex- plained to the said C. D. who appeared perfectly to understand the same,] and made his mark thereto in our presence," &c. {q) Answer of a corporation.^ The answer of a corporation is usually put in under the corporate seal, and without oath. {?')(74) But where it is the object of the corporation to obtain a dissolution of an injunc- tion, it is necessary to have the answer verified by the oath of some of the coi-porators or officers of the coi-poration who are acquainted with (n) 2 Dan. 280. (o) Attoniey Gen. v. IMalini, 1 Yonnge, 376. [p) Pilkington v. Hinibwoitli, 1 Young & Col. 612. (5) 1 Yonng & Col. fil.i. note. (r) Vermilyea 7. Fulton Bank, 1 Paige, 37. 1 Smith's Ch. Pr. 188. (74) 1 Dan. Ch. Pr. 3d Am. ed. p. 767 ; Anon. 1 Vem. 117. See Kittredge v. Clare- mont Bank, (1 "Woodb. rac. Bea. 118. (m) 2 Ban. 90. (n) Ilinde, 236. Anon.. Mos. 238. 352 Chap. C] PJiOCEEDI.VGS TO A DECREE. 263 (or scliedules) hereto aimexed." And the return thus endorsed must be signed by two commissioners, (o) The commission must then be tied up and sealed, and directed to the register or clerk ; and if sent by a messenger, delivt.ed to him by the commissioners. The messenger, on his arrival, delivers it to the register or clerk, who swears him to the fact that he received the commission from the hands of one or more of the commissioners, and that it has not been opened nor altered since he so received it. {p) la the case of Brown v. Southiuorth, (q) the chancellor laid it down as the settled practice of the court, that a commission for the examina- tion of witnesses may be returned by the commissioners, by mail, unless there is a special order to the contrary. And that each of the commissioners, after the sealing up of the commission and the deposi- tions taken by them, should sign his name upon the outside of the package, in his own proper handwriting. In analogy with this prac- tice relative to witnesses, probably a similar course would be sanctioned with respect to commissions to take answers of defendants. At all events, the court would doubtless authorize it, whenever specially ap- plied to for such an order. Indeed, it seems to have been directed iu one case, (r) "When the commission is returned by a messenger, it is to be left by^ him with the register. If one of the commissioners is the bearer of the commission, the above formalities with regard to swearing the messenger are dispensed with. The commissioner delivers it, sealed, into the hands of the register or clerk, who accepts it without oath, and endorses it thus : [Date,] " Eeceived by the hands of G. H., one of the commissioners." (s) It is provided by statute that when a commission shall be issued to take a defendant's answer, no copy or abstract of the bill shall be annexed thereto, (t) Amendment of answer.] It is only under *very special cir- [*164] cumstances that a defendant can be allowed to make any alteration in his answer, after it has been put in. (u) (81) But the court will some- (o) Ifl. ib. (p) Id. 237. (gl 9 Paige, 351. (r) Biivclay v. Barker, cited! Hoff. Cli. Pr. 233. (S) Hindc's Ch. 237. (<) 2 U S. 179. f 7», (orig. } 72.) («) McKira V. Tliompson, 1 Bland, 16i. 4 Johii. Ch. Rop. 375. 2 Hayw. 178. (81) Smith V. Babeock, 2 Sumner, 58:! ; Western Reserve Bank v. Striker, 1 Clarke, 380 ; Cock v. Evans, 9 Terg. !JH7, 2-id ; Burden v. McElmoyle, 1 Bailey Eq. 375 , Giles y. Giles, id. 428 ; Carter v. Wood, 1 BaUl. a89 ; lAggon v. Smith, 4 Hen. & Mnnf. 405 ; Culloway v. Dobson, 1 Brook. 119 ; Coffman v. Alline, Litt. Sel. Cas. 201 ; Maron y. JJebow, 2 Hayw. 178; Flora v. Rogers, 4 id. 20i: Jackson v. Ctctright, 5 Munf. 308 ; Hennings y. Conner, 4 Bibb. 299 ; Beach v. Fulton Bank, 3 Wend. 574 ; Taylor v. Bogert, 5 Paige, 33 ; 1 Dan. Ch. Pr. 3d Am. ed. 778, and n. ; Story's Eq. PI. { 896 to 901. Vol. I.— 23 353 164 PROCEEDINGS TO A DECREE. [Book !. times permit it to be done, upon special application. It is, liowevei', a matter in the discretion of the court ; which discretion is exercised with great caution. It may be done, in a small matter, at any time before issue joined, on motion. But in a material point, the moiion mast be made upon an affidavit of the facts which make it necessary, and after notice to the complainant's solicitor, {v) An amendment may be granted for the purpose of correcting a mistake orerroi' in a matter of fact, or in the statement of a fact ; (w) or in making an a l- mission of assets ; {x) or a mistake in the title of the answer, (y) So it Avill be allowed where new matter has come to the defendant's knowl- edge since the answer was pnt in, («) or in cases of surprise, as where an addition has been made to the draft of the answer after the defend- ant has perused it. (a) (82) ■ (p) Liggon V. Smith, 4 Hen. & Muiif. 477. (M>i Alplia V. I'iijinan, 1 Dick. Xi. Burney v. Chambers, Bunb. 248. Conntess of Gaivi3 liorouffli V. Gifford. 2 Peer Wms. 424. (a:) Oaglev v. Crnmp, I Dicli. :J5. (j/l Ami). \,i. 1 .Mad. 2ii9. 1 Ves. & B. I8B. ;z) Patleraoii v. Slaugiitiii-, Amb, 292. \Vells v. Wood. 10 Yes. 401. Alpha v. Payraan, Dick. ii3. (a) (Jhiitc V. Lady Oacre, i Efi. Ca. Ab. 29. (82) The provisions of tho Code, in respect to the auieudment of answers, are as follows : No variance between the allegation in. a pleading, and the proof, shall be deemed material, unless it have actually misled the adverse party, to his prejudice, in main- taining ilia action or defence, upon the merits. "Whenever it shall be alleged that a party has been so misled, that fact shall be proved, to the satisfaction of the court, and in what respect, he has been misled ; aud thereupon the court may order the pleading to be amended. (§ 169.) AThen tho variance is not material, the court may direct the fact to be found ac- cording to the evidence, or may order an immediate amendment, without costs. (§ 170.) But where the allegation of tho cause of action or defence to which the proof is directed is unproved, not in some particular or particulars only, but in its entire scope aud meaning, it shall not be deemed a case of rariance within sections 169 and 170 but a failure of proof, (ij 171.) Any pleading may be once amended by the party, o/ coitrae, without costs, and Without prejudice to the pleading-; already had, at any time within twenty days after it is served, or at any time before the period for answering it e.i;pires ; or, it can be so amended at any time within twenty days after the service of the answer or demuiTer to such pleading ; unless it be made to appear to the court that it was done for the purposes of delay, aud the plaintiff or defendant will therebj' lose the benefit of a cir- cuit or term for which the cause is, or may be, noticed. If it appear to the court that such amendment was made for that purpose, the same may be striclien out, and sucu terras imposed as to the court may seem just. In such case, a copy of the amended pleading must be served (ra the adverse party. (^ 172.) And the court may, before or after judgment, in furtherance of justice, and npon such terms as may be proper, amend aiiy pleading, &c., by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mis- take in any other respect ; or by inserting other allegations material to the case ; or, when the amendment does not change, substantially, the claim or defence, by con- forming the pleading, &c., to the facts proved. (Code, § 173.) Whenever a party seeks to avail himself of the provisions of section 169 of the Code, he must prove, to the satisfaction of the court, that he has been misled, and the proof must show in what respect he has been misled. (Cattin v. Giiiitei; 10 How. Pr. 315 ; S. C. 11 S". Y. 368 ; Deuel v. Spencer, 1 Ab. 237 ; Cotheal v. Talmadge, I E. D. Smith, 575 ; Cobb v. West, 4 Duer. 38.) It is very clear that sections 109 and 170 contemplate a cijse where the alleged variance has been discovered, or is de- . 3p4: , Chap. 6.] PROCEEDINGS TO A DECREE. ]g4 But an amendment of the answer will not be permitted for the pur- veloped on the trial or hoavinir, at whioli time the relief, in a ease to which it is ap- propriate, may be given at oiiee.,aiid the trial thereafter proceed upim the amended pleadings. {Egeri v. fVickev, 10 How. Pr. 19:{, 197; Cotheal v. Talmadge, I B. D. Smith, 57.3 ; S. C. 9 N. T. 5.51 ; Therasson v. Peterson, 2i How. Pr. 96.) Unless the party claiming to have been misled is able to prove it, to the satisfaction of the court, the variance will be disregai'ded, and the pleadings may be amended to conform to. the facts proved. {Cknpmau v. Casotin. ^ Bosw. 4ii6.) Or, the trial n\ay proceed ■without au amendment, either before a jud^o or a referee, and if the plaiutiff have a verdict, he may move to have the pleading amended to correspond to the facts proved; provided the defendaut has not been misled or surprised by the variance. {LcUman v. Ritz, 2 Sandf. TX^. See also DePeyster v. Wheeler, 1 id. 719; S. C. 1 Code Rep. 93 ; Harmony v. Bingham, 1 Duer, 210 ; S. C. 12 K. Y. 99 ; Hart v. Hud- son, 6 Duer, 294 ; Parsons v. Suydam., 3 E. D. Smith, 276; Craig v. Ward, 36 Barb. 377 ; S. C. 3 Keyes, 387 ; Belifea v. Beaver, 34 Barb. 547 ; S. 0. 25 N. T. 123 ; Hmery V. Pease, 20 X. Y. 62; Coleman v. Playsted, 36 Barb. 29 ; Seaman v. Low, 4 Bosw. 3.38.) Since the court has a discretion in that respect, it is no ground of review, on ap- peal, that a request for leave to amend was made, on the trial, and I'efused. {Phincle V. Vaiighan, 12 Barb. 217; Hendricks v. Dec/cef, 35 id. 302 ; Dennis, y. S7iell, ^0 ii. 95; S. 0. 34 How. 467; 54 Barb. 411 ; New Fork Marlled Iron, Works v. Smith, 4 Duer, 362, 367 ; Gould v. Glass, 19 Barb. 186.) Aud the general rule is that the dis- , oi-etiou of the court, in allowing or disallowing an ameudment, having been exorcised, it is not the subject of review on appeal. (Gould v. Kiimsei/, 21 How. Pr. 97 ; Mac-' qiieen v, Baboock, 13 Ah. 268 ; S. 0. 22 How. Pr. 229 ; 3 Keyes, 428 , Salters v. Genin, 19 How. Pr. 233 ; S. 0. 10 Ab. 47rf ; Bailei/ v. Johnson, 1 Dalv, 62 ; St. John .V. West, 3 Code R. 85; S. C. 4 How. Pr. 329; Ford v. Daoid, 1 Bosw. 570; Travis V. Barger, 24 Barb. 614 ; Phincle v. Vaiighan. 12 id. 215; N.Y. Marbled Iron Works V. Smith, 4 Duer, 362; Smalley v. Doughty, 6 Bosw. 66; Kissam v. Roberts, id. 154; Binnard v. Spring, 42 Barb. 470; Schermerhorn v. Wood,'iO How. 316.) Yet if some substantial right has been invaded, by the amendment, an appeal to the general term will be allowed. ( Union Bank v. Matt, 11 Ab. 42 ; S. 0. 19 How. Pr. 267. See Johnson v. Mcintosh, 31 Barb. 267.) But where a party has leave to amend granted him, at special term, which is reversed at general terra, no appeal lies to the court of appeals. {Neio York Ice Company v. Northwestern Ins. Co. 23 If. Y. 357 ; S. C. 12 Ab. 414 ; 21 How. 296 ; Hodges v. Tennessee Marine f Fire Ins. Go. 8 H". Y. 416. See Lounsbiiry v. Purdy, 18 N. Y. 515.) If the answer be one merely of denial, it cannot be amended, of course ; because no reply or demurrer to such an answer can be interposed. {Ferrand. v. Herbeson, 3 Duer, 655; Plumb v. Whipples, 7 How. Pr. 411.) Hence, if a defendant wishes to amend such an answer, by setting up new matter, or a counter-claim, or in any other way, he must apply to the court for leave, on motion and upon notice. (Van Saut. Eq. Pr. 221.) Prior to the amendment of the Code, in 1852, the court, by the terms of section 173, could only allow such amendments as would not change, substantially, the claim or' defence. But, by a very slight change in the language of the section, this restriction which, before, was general, is now limited to those cases in which amendments are allowed for the purpose of conforming the pleading to the facts proved. In all other cases the court is invested with thepowei', in its discretion, to allow " any allegations material to the case " to be inserted in the pleading ; even though the effect maj^ bn to change entirely the cause of action or defence. {Beardsley v. Stover, 7 How. Pr. 294.) Facts occuiTing after service of the answer, or facts of which the defendant was ignorant at the time of putting in the answer, cannot be set up byway of ameudment of the answer. If attempted, the amended answer will be irregalar, aud may be set aside im motion. (Van Saat. Eq. Pr. 222.) Amendments sh(rald be liberally allowed by the court in furtherance of justice. ( Fanderbilt v. Access. Transit Co. 9 How. Pr. 352 ; Cook v. Spears, 2 Cal. 40'J ; Steams v. Martin, 4 id. 227 ; Btitler v. King, 10 id. 342 ; Smith v. Treka Water Co. 14 id. 201; Lord v. Hopkins, 30 id. 78; McMillan v. Dana, 18 id. 339; Roland v. Kreyenhagen, 18 id. 4.55 ; Pierson v. McCahill, 22 id. 127.) ' It rests entirely within the discretion of the court to allow, or refuse to allow, an amendment of the pleadings, on the trial, in order that proof of a new cause of action or defence, may be admitted. (Hendricks v. Decker 35 Barb. 298; Both v. Schloss, 355 1(34 I'ROCEEDlXaS TO A DECREE. [Book I. pose of enabling the defendant to set up the defence of usury, unless () id. 308; Brown v. McCime, 5 Sandf. 224, 229.) The question cannot be reviewed on a motion for a new trial. (See Hendricks v. Declcer, supra.) It is not a ground of, nor will it be considered on, ajjpeal. (Gould v. Itamseij, 21 How. Pr. 97. See MoCarty v. Edwards, 24 id. 23B.) But it seems that the rule is difi'erent when the refusal to allow the amendment is based by tlie judge on the ground that he has uo power to do so. (Russell y. Conn, 20 N". Y. 8J.) The objection that the proof does not correspond with the pleading must be taken at the trial, or it cannot be raised on appeal. (Bosebrooks v. Dinsmore, 5 Ab., K. S. 59 ; S. C. 36 How. 138. See also Bahbett v. Young, 51 Barb. 466.) Ifotwithstanding the facts pi-oved may themselves constitute a cause of action or defence, unless they agree with and sustain the pleading, it is a failure of proof under section 171 of the Oode. (Gasper v. Adams, 28 Barb. 441.) When there is a particular matter set up in a pleading, which is not proved in some particular, it is a case of variance provided for by sections 169 and 170 ; but if there are uo allegations showing a ground of action or defence, the Code does not allow a decree founded on the proof without allegations. (Kelsey v. Western, 2 lif. T. 500; Richards v. Allen, 3 B. D. Smith, 399.) The right to amend of course, under section 172, does not constitute, of itself, a stay of proceedings. (Cusson v. Whalon, 1 Code Rep., N. S. 27 ; Plumb v. JVhipples, 7 How. Pr. 411.) Under this section a party may strike out a cause of action or de- fence by amendment of course. ( Watson v. liashmore, 15 Ab. 51.) It is not the practice of the courts, when a party is obliged to apply for leave to amend his plead- ing, to grant such leave for the purpose of allowing the defendant to set up the statute of limitations, usury, or any of that class of defences usually denominated uncon- scionable. But under section 172 a defendant is entitled, as a matter of course and of right, to amend his answer once, within twenty days after its service (if not put in ' for delay), by adding thereto a new and distinct defence, even though it be that of the statute of limitations. (McQueen v. Babcock, 22 How. Pr. 229.) The only limit to a defemiant's right to amend of course is that it shall not be, done for the purpose of delay. (Code, J 172.) The right to amend is absolute, subject only to the power of the court to strike out for cause shown. If the amendment is made in good faith, and not for the purpose of delay, it cannot be stricken out, although the effect maybe to depi'ive the opposite party of the benefit of a circuit or term. The court must pass upon the question of intent as well as of the effect, and be satisfied that it was made for the purpose of delay, and that such will be the effect of it, before it can be stricken out. The statute does not authorize the party (whose pleading has been amended) to decide in the first instance, and disregard it at his peril, leaving the rights of the parties to be sub- sequently settled upcm motion ; but provides fn appeal to the general term, after judgment, that court cannot amend the pleaJings so tbat the merits of the case will be affected, and a new trial required {Brown v. Colie, 1 E. D. Smith, 265.) But iu any case in which the court, at special term, ought cleariy to have allowed an amendment, the general term may treat the pieaiings a^ having been amended in conformity with the proof. {Bowdoin v. Colman, 6 Duer, 183: S. 0. 3 Ab. 431; Bate V. Graliam, 11 X. T. 237 ; Clark v. Dales, 20 Barb. 67 ; Harrower v. Heath, 19 id. 338 ; Fratt v. Hudson River B. R. Co. 21 l!f . Y. 305, 313 ; Wright v. Whiting, 40 Barb. .235.) In Malcom v. Raker, {i, Hdw. Pr. 301,) after judgment for the plain- tiff; which was affirmed on appeal, leave to amend the answer was refused as too late, notwithstanding the order of aSirmauoe reserved to the defendant permission to apply for such leave. Vfhen evidence of facts not within the answer is admitted, and the referee decides in favor of the defendant on those lacts, an amendment of the answer cannot bo made &o that it will ocmform to the proof. {Johnson v. Mcintosh, 31 Barb. 272.) A party will not be allowed, after trying one defence and failmg in it, to set up an en- tirely new one. ( Willet v. F'ayer weather, 1 Burb. 72.) No notice of. motion for leave to amend need be given when the only ground for or against the amendment is fnruiihe.l by the rj^jord. In such a ca-ie tbe amend- ment may be granted on the hearing at tbe general term. {Clark v. Dales, 20 Barb. 67.) Even after judgment the court has an extraordinary power to insert now allega- tions material to the case in a plea.ling. This power will, however, be very spar- ingly exercised. {Field v. Uawxnurst. 9 How. Pr. 7.j ; Jigerl v. Wicker, 10 id. 193.) Where a complaint is amended in a material p.utienlar, tbe right of the d.ofendaut to answer the amendad complaint is aosolute and unre-ilricted. He may interpose any defence that he may have. {Harriott v. Wells, 9 Bosw. 6J1.) 359 264 PROCEEDINGS TO A DECREE. [Book I, self of the opportunity to interpose such defence in the first The terms of an amendment are within the discretion of the court, and the exer- cise of that discretion is not the subject of review upon exceptions or appeal. ( Van Ness V, Bush, 14 Ab. 36.) The party who applies for the amendment should bear all the expenses of it, ( Union Bank v. Mott, 19 How. Pr. 267 ; S. C. 11 Ab. 42,) and all additional expenses imposed on the opposite party should be repaid hiin. (ECaie V. Wliite, 3 How. Pr. 296; S. 0. 1 Code R. 70.) Where the court, at the trial, im- poses terms ajs a condition of granting leave to amend an answer, the terms will bo deemed to be acquiesced in, unless an exception is talien at the time. (Griggs v Howe, ai Barb. 100 ; S. C. 2 Keyes, 574 ; 3 id. Ifjli.) ■ It has been held that it is not in furtherance of justice, after judgment has been entered, to allow an amendment in order that a party may plead the statute of limi- tatiousi Such an amendment does not come within the terms of section 174 of the Code. (Clinton v. Eddy, 37 How. 23; S. C. .')4 Barb. 54.) Leave to amend the answer, or to flle a supplemental answer, for the purpose of setting up a defence that outstanding mortgages have been purchased, which are a lien upon real property in litigation between the parties, will be granted on such terms as will protect the rights of the plaintiff. (Madison Avenue Baptist Church v. Baptist Church in Oliver Street, 2 K >b. 64i.) A defendant, by amending his answer, and taking issue on a new cause of action added to the complaint by amendment, waives all objection to such amendment. (Seoor V. Law. 9 Bosw. 163.) If a defenaant does nut know that too many are joined as plaintiffs until after the same appears in evidence, he should then apply for leave to amend his answer. i^daklei/ V. Tarbox, 31 JS". T. 5ii4 ; Gdlam v. Sigman, 29 Gal. 657.) By itnle 60 of the Equity Rules of the United States Courts, it is provided that " alter 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 lioariug upon bill and answer. But after replication, or such setting down for a heariug, it shall not be amended in any material matters, as by adding new facts or defences, or qualifying or altering the original statements, except by special leave of the court, or the judge thereolj upcm 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 the judge granting the same may, in his discretion, require that the same be separately engrossed, and added as a distinct amendment to the original answer, so as to be distinguishable therefrom." It has been held that a defendant will not be allowed to amend his answer after the opinion of the court, and the testimony have indicated in what respect it may be modified so as to effect his purpose. (Calloway v. Dobson, 1 Brock. 119.) Amend- ments are within the discretion of the court, and cannot be controlled by mandamus, (Jackson v. Smith, 1 Paine, 453 ; ex parte Bradstreet, 7 Peters, 634,) and are gov- erned by then- own rules and modes of practice. ( Wright r. Hollingworth, 1 Peters, 165 ; Walden v. Craig, 7 Wheat. 576 ; United States v. Buford, 3 Peters, 12.) In Maryland, where an order granting to the plaiutift' the right to surcharge and falsify an account, was appealed from, and the appellate court remanded the cause for the purpose of having the pleadings amended, and for further proceedings, and extended the right to surcharge and fahify the account to both parties, provided the defendant's unamended pleadings should warrant such extension, it was held that the defendant could amend his answer so as to surcharge and falsify in respect to matters known to him at the time of filing his original answer. ( IVilliams v. 'She Savage Manuf. Co. 3 Maryland Ch. Decis. 418.) In California, amendments, of course, may be made, without costs to either party, to a pleading, before the trial of the issue of law, on a demniTer filed thereto. (Oal. Pr. Act, 5 67 ; Allen v. Marshall, 34 Cal. 165 ; Lord v. Hopkins, 30 id. 76 ; Barber V. Reynold, 33 id. 497.) But a party shall not so amend more than once. (Cal. Pr. Act. 5 67.) After demurrer, and before argument and submission of the issue thereon, either party may amend a pleading by filing the same as amended, and serv- ing a copy on the adverse party or his attin'ney, who has ten days to answer or de- mur thereto. (Cal. Pr. Act, $ 67.) A defendant cannot amend his answer by inserting an averment which is but a conclusion of law. (Levinson v. Swartz, 22 Gill. 229.) A referee cannot order an amendment. (l)e la Biva v. Berreyessa, 2 Cal. 195.) Amendments should be liberally alUiwei by the court, in fui-thorauce of jus- tice. (Cook v. Spears, 2 Gal. 409 ; Stearns v. Martin, 4 id. 227 ; Butler v. King, 10 360 Chap. 6.] PROCEEDINGS TO A DECREE. "[g4 id. 34): SinWiY. Yreka Water Co. 14 id. 201 ; Lordv. SopTcins, 30 id. 78; McMil- lan V. Dana, 18 id. 339 ; Boland v. Kreyenliagen, id. 455 ; Pierson v. McCahill, 22 id. 12".) After demurrer sustained, amendun-'nts may be made oa motiou. (Smith V. Yreka Water Co. 14 Cal. 201 ; Gallagher v. Deluncif, 10 id. 410 ; Pierson v. Mc- Cahill, 22 id. 127 ; Fish v. Bedington, 31 id. 18o.) Tlie party desiring to amend, after demuiTer sustained, must mak^ his motion to the court ; and he cannot object, on appeal, that he was not permitted to amend, when he made no oflFer. (Smith v. Yreka Water Co., supra.) After a deniuiTer to the defendant's answer has been sus- tained, it is in the discretion of the court to allow the defendant to amend. (Gillan V. Hutchinson, 16 Cal. 153.) The court may likewise, upon affidavit showing good cause tberefor, after notice to the adverse party, allow, upon such terms a-< may be just, an ameudmeut to any pleading. (Cal. Pr. Act, § (58 ; 3 Estee's Pr. 300,) at any stage of the trial, in further- ance of justice. (Peters v. Foss, Ifi Cal. 8i7; Lestrade \. Barth, 17 id. 285. See also Arnold Y. Arnold, 20 Iowa. 273; 1 Scam. 45; Sid. 342, 4.5; 32 III. 331; 35 id. 22; 47 Maine, 492; 42 N. H. 25.) The allowance of amendments at the trial is in the discretion of the court, (Thornton v. Borland, 12 Cal. 438; Gillan v. Hutchin- son, 10 id. 153; Cooker. Spears, 2 id. 438: Steams v. Martin, 4 id. 227,) and that discretion wiU rarely be revised; (Pierson v. McCahill, 22 Cal. 127;) but, for its abuse, the appellate court will interfere. (Cooke v. Spears, 2 Cal. 409.) Where, from oversights of counsel, committed under pressure of business, pleadings are de- fective, araendmenU should be allowed with great liberality. In such eases, when an offer to amend is made at such a stage of the proceedings that the other party will not lose an opportunity t ) fairly present his whole case, an amendment should be allowed. (Kierstein v. Madden, cited, 3 Estee's Pr. 300.) "Where, in the course of a trial, it is discovered that pleadings are so defective that the real subject of dispute can lot be finally determmed. the court should allow amendments ou such terms as may be just, at any time after the commencement of the trial. (Stringer v. Davis, 30 Cal- 218 ; Peters v. Foss, 16 id. 357 ; Lestrade v. Barth, 19 id. 660; Gavitt v. Doul), 23 id. 78.) A defendant may amend his answer by showing that the whole interest in a joint counter-claim has been transferred to him; (Stearns v. Martin, 4 Cal. 229;) or he may amend by inserting new matter, (Pierson v. McCahill, 22 id. 127,) if not en- tirely foreign to the cause of action. (Neoada 4' Sao. Co. Canal Co. v. Kidd, 28 Cal. 673.) The fact that such new matter was well known to the defimdant at the time the original answer was filed, is no good reason why the amendment should not be permitted. (Pierson v. MeCahill, supra.) "Where an amended answer ia complete in itself, and is inconsistent with the original answer, the two cannot stand together. (Kuhland v. Sedgwick. 17 Cal. 123.) If the defendant does not know that too many are joined as plaintifi's until after the same appears in evidence, he should then apply for leave to amend his answer. (Gillam v. Sigman, 29 Cal 657.) And if testimony, offered by the defendant, is rejected, because of a defective denial, he should be allowed to amend his denial. (Stringer v. Davis, 30 Cal. 318.) So, if the defendant has acquired title to the premises demanded during the litiga- tion, he should be allowed to amend his answer, so as to obnate the objection to the introduction of testimony excluded by the court under the original answer. (McMinn T. O'Connor, 27 Cal. 238.) After trial, eiTor in the computation of interest may be corrected in the court bo- low. ( Whitney v. Bankman, 13 Cal. 536.) Upon the trial, every material allegation of the complaint, not specifically ooutrorerted, is to be taken as true ; but where the defendant supposed he had denied material allegations, and the court sustained his view of the answer, it was held that the appellate court, on reversing the judgment, might allow the court below to exercise its discretion in permitting the answer to ba amended. (Fish v. Beddington, 31 Cal. 186. See Pierson v. McCahill, 22 id. 127.) The court may, on granting leave to file an amended pleading, impose suuh terms as it may deem proper. (3 Estee's Pr. 310.) The party desiring to amend must serve an engrossed copy of the pleading, with the amendment incorporated therein, or a copy of the proposed amendment, refeiTiug to the page and line of the pleading where the amendment is to be inserted, together with notice of the application to amend. (Cal. Pr. Act, § 43; 3 Estee's Pr. 311.) In Nevada, it has l^een held that if, instead of demurring, advantage be taken of a defective pleading, by motion for judgment, the court should permit an amendment of the pleading, where an amendment wUl cover the defect, the same as if a demur- rer had been interposed. (Cal. State Tel Co. v. Patterson, 1 N"ev. 151.) lu Ohio, the court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, &o., by adding or striking out tho 3G1 J 64 PROCEEDINGS TO A DECREE. [Book L name of any party, or by correcting a mistake in the name of a party, or a mistake in any otlier respect ; or by inserting otlier allegations material to the case ; or, when the aiiieudment does not change, substantially, the claim or defence by coufn such terms as the court may deem proper, so that neither party be surprised or delayed thereby. (Ch. Code, § 34; Statutes of lo58, vol. 1, p. 14-2,) lu Michiffan, the com'l in which any action is pending has power to amend any process, pleading, or proceeding 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. (Compiled Laws of 18.i7, vol. 2, p. 1200, J 1.) In Ke/itucki/, whenever it is alleged that a party has been misled to his prejudice by a variance between the allegation in a pleading and the proof, and the fact is shown to the satisfaction of the court, the court may order the pleading to be amended, upon such terms as may be just. (Civ. Code of Pr. J 155.) The court may at any time, in furtherance of justice, and on such terms as may be proper, amend any pleadings or proceeding, by iidding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case ; or, when the amendment does not change substantially the claim or defence by contbriaiug the pleading, cfcc, to the facts proved, and when the allegaticms of a pleading are so indefinite or uncertain ■ that the precise nature of the claim or defence is not apparent, the court may require the pleading to be made de^.nite and certain by amendment. (Id. § 161.) Courts may permit such amendnuints to be made without being verified, unless a new and distinct cause of action or defence is thereby introduced. (Id. 5 166.) In Barbour v. Moss's adm'r, (cited Myers' Code, p. 427,) it was held that wher« the defendant must have known the facts contained in an amended answer, which ha proposed to file, at the time of filing his original answer, it was not an abuse of dis- cretion to refuse leave to file it. 363 Chap. 6.] PRocEEorxas to a decree. \^^ instance. (83) Yeb it seems that where such defences are defective!} set forth, an amendment will be allowed, in order to give the party the benefit of the defence which he intended to present. But he will not be permitted to put in a new or additional plea or answer, (b) And the court has never permitted amendments to be made where the application has been made merely on the ground that, the defendant, al the, time he put in his answer, was acting under a mistake in point of law; and not on the ground of a fact having been incorrectly stated Thijs, .where a defendant, who was an executor, had admitted himself accountable for the sui'plus, and it was afterwards found tha,t the cirr cunistauces of the case were such that he would have been entitled to it *himself, permission to amend was refused.(c) So where a defend- [*165] ant had, by his answer, admitted the receipt of a sum of money from his father by way of advancement, and refased to bring it into hotchpot, he was not permitted to amend his answer as to the admission ; although he swore that he made it under a mistake as to the law of the case, {d) The court will also refuse to permit an amendment of an answer af- ter an indictment for perjury preferred or threatened; even though it (b) Beach v. Fulton Bank. .! Wend. 1573. (c) R."i\vlins V. Powell, I Peer Wins. 306. (d) Pearce v. Gi*ove, Ainb. 63, S. C. 3 Atk. 522. (83) It is not the practice of the oomts, when fi party is obHjred to apply for learn to amend his pleadiug, to grant such leave for the purpose of allowing the defendant to set np the statute of limitations, usury, &c., or any of that class of defences usu- ally denominated unconscionable. But the (lefeudaut is entitled, as a matter of course and of right, to amend his answer within twenty days after its service (if it lie not done for ilelay,) bv addini; thereto such defences, or anv new and distinct de- fence. (Macqueen v. Bahcock, ^2 How. Pr. 229; S. C. 3 Keyes, 428 ; 13 Ah. 268.) The court, in the exercise of a sound discretion, will not permit a defendant who asks a favor to interpose the statute of limitations, where he, in effect, concedes that the debt has not been paid. (Osgood v. Whittelsey, 20 How. Pr. 72; Sagory v. Thf New York 4- New Haven B. B. Co. 21 id. 455.) The fact that an answer sets up the defejice of usury, is no reason why the defend- ant should not have leave to amend his answer in respect to other defences. {Brown V. Mitchell, 12 How. Pr. 408.) In Bates v. Voorhies, (7 How. Pr. 234,) Harris, J. refused to allow an amendment to set up the defence of usur}^ stating, however, thai although it was against his own convictions of justice and propriety, such had been "the practice, and that, perhaps, the practice had become so invetei-ate that it coula not be disregarded. In Gi-ant v. McCaiighin, (4 How. Pr. 216.) where a default for want of an answer was opened, Parker, J., refused to impose the terms that the de- fendant should not set up the defence of usury. In The Union National Bank oj Troy V. Bassett, (3 Ab., N". S. 3,59,) it was held that the e l)jru, z.id; ll'i/lidnit,- v . Uuniuii, IG Ab. ITU; AIcMahortt 364 Chap. 6.] T>nocEEDiXGS to a decree. \^^ *But although the court will, in cases of a clear mistake or other [*166] cases of that description, permit a defendant to correct his answer by fil- ing a supplemental answer, it always does so with great difficulty where an addition is to be put upon the record prejudicial to the complainant ; though it will be inclined to yield to the application if the object is to remove out of the complainant's way the effect of a denial, or to give him the benefit of a material admission. {I) But where the application (I) Bowen v. Cross, IJohn. Cli. 375. AlUn. 1 Hilt. 103; S. C. 12 How. Pr. 89; 3 Ab. 89; Houghton -7. Skinner, 5 How, Pr. 420 ; liadley v. Houghtaling, 4 id. 251; Sage v. Masher, 17 id. 367 ; Lampson v. McQueen, 15 id. 345.) Thus, in an action for the partition of land, brought by the grantee in the sheriff's deed after sale oq execution, evidence that after issue joined the judgment on which the sale took place was vacated is inadmissible, unless the fact has been set up in a supplemental answer. ( Williams v. JECernon, 16 Ab. 173.) So the recovery of a judgment in a former action, after the original answer in a later suit was pat in, should be set up in a supplemental answer, on leave obtained for that purpose. (Hendricks v. Decker, 35 Barb. 302.) Matters which have occmTed since the first answer was put in, can only be set up by leave of the court, in a supplemental answer. (^Lampson v. McQueen, 15 How. Pr. 345; Mcilahon v. Allen, 3 Ab. Pr. 86 ; S C. 12 How. Pr. 39; Houghton v. Skinner, 5 id. 420 ; Dias v. Merle, 4 Paige, 259.) In an action for divorce on the ground of adultery, the defendant, on showing a reasonable prospect of establishing the defence, may have leave to amend, or to file a supplemental answer, setting up the defence of the plaintiff's adultery, discovered after the issues were first joined in the action. (Strong v. Strong, 28 How. 43:i.) So a release given after issue is joined in an acti(m, can properly be set up only by supplemental answer. (Matthews v. Chicopee Manuf. Co. 3 Kol). 712.) A supplemental pleading is in addition to, and not a substitute for, the original. (Dann v. Baker, 12 How. Pr. 521.) And the supplemental pleadings allowed by section 177 must not contradict the statements in the first, but must be consistent with them. (Ibid. ; Slauson v. Englehart, 34 Barb. 198; Wattson v. Thihou, 17 Ab. 134.) The court may compel a party applying I'or leave to file a supplemental plead- ing, to elect to .substitute it in the place of the previous one ; but unless it does so, both remain. (Brown v . Jiichardson, 4 Rob. 6U3; Bate v. Fellowes, 4 Bosw. 638. See Dann v. Baker, 12 How. Pr. .521.) The proper mode of applying to the court for leave to file a supplemental pleading is either by moticm, on proper notice, or upon an order to show cause. The motion cannot properly be made at the trial. (Garner v. Hannah, 6 Duer, 2G2. See also Hoyt V. Sheldon, 4 Ab. 59; Hoyt v Thompson's Ex'rs. 19 1^. Y. 207.) If a supplemental pleading is defective, the proper practice is to demur to it. ('Goddard v. Benson, 15 Ab. 191; Abbot v. Euyesley, Freem. 252; S. C. 2 Mod. 307.) Any defence should be allowed to be set up by supplemental answer, which a party could have pleaded puis darrein continuance, as a matter of strict right. (Hoyt v. Sheldon, 6 Uner, 661 ; S. C. 4 Ab. 59; 19 ST. T. 207; Bate v. Fellowes, 4 Bosw. 633; Badley v. Houghtalirig, 4 How. Pr. 251 ; Sandford v. Sinclair, 3 Denio, 269 ; Moreli V. Garelly, 16 Ab. 269.) But in order that a defendant may, as a matter of riglit, pat in a supplemental answer, what he proposes to plead must be true, and it must contain a good defence. Upim a motion for leave to put it in, the truth of the mat- ter ma}' be inquired into, (Morel v. Garelly, 16 Ab. 269,) and where it appears that the proposed answer is i'alse, leave to tile it will be refused, (lb.) If the defendant is guilty of laches, it is in tlie discretion of the court to refuse leave. (lb. See also Banoker v. Ash, 9 John. 2.50; Morgan v. Dyer, Id. 255 ; Ludlow v. McCroa, 1 Wend. 228 ; Tuffs v. Gibbons, 19 id. 639 ; Hoyt v. Sheldon, 6 Duer, 661 ; Sandford v. Sin- clair, 3 JDenio, 269.) In a proper case, leave to amend or to file a supplemental answer for the purpose of setting up an equitable defence, will be granted upon such terms as will protect the rights of the plaintiff. (Madison Avenue Baptist Church v. Baptist Church in Oliver Street, 2 Kob. 642.) In Stewart v. Isidor, (5 Ab., N. S. 68,) where the de- fendants in a creditor's suit sought to set up their discharge in bankruptcy by a sup- plemented answer, although it did not appear whether the plaintiffs had disclosed 365 IfiQ PROCEEDINGS TO A DECREE. [Book I. is made on the ground of mistake, it will be gi'ani.ed only where there is a mistake, properly speaking, as to a matter of fact, [m) And it may be liere remarked, that where a defendant, in putting in his original answer, lias mistaken facts, lie canriot contravene his own admission in any other way than by moving to correct liis answer either hy amend- ment or supplemental answer. He cannot do so by filing a cross-bill. («,) (m) 2 Dan. 310. E.lwarils v. M<;Le!iy, 2 Ves. & B. 256. Livesey v. Wilson, 1 id. 149. (n) Berliley v. Kyder, 2 Vea. sen. 533. their claim of lien, or proved theii- debt in baukruptcy, it was held that the supple- mental answer might be interposed. An order allowing a supplemental pleading may be appealed from. (Hai-ringlon V. Slacle, 22 Barb. 164 ; Guild v. I'arsoiis, 16 How. Pr. 382 ; Cheeseman v. Sturges, 19Ab. 293.) In Bowen v. Irish Presbyterian Congregation, (6 Bosw. 246,) after a trial had been had, the court refused to allow a supplemental answer to bo filed. And in itoiighton v. Skinner, (5 How. Pr. 420,) it was held that an answer in the nature of a plea puis darrein continuance will not be allowed after two trials, where the de- fendant had knowledge of the facts before answering in the cause. And it seeths that the court will not, even before trial, allow a supplemental answer to set up a technical defence to defeat a just claim. (Hoijt v. Sheidon, 4 Ab. 59; 6 Duer, 661.) The supplemental answer, under the Code, is a substitute for the old plea of ^itjs darrein continuance ; but it differs from that plea in this respect, that the supple- mental answer may be allowed, on motion, whenever the facts tV)rmiug the ground of the answer have occurred since the answer was put in, or where the defendant was ignorant of them at the time of pleading the first a,nswer ; whereas the plea of puis darrein continuance could strictly be pleaded only before or .at the next continuance after the facts transpired. "When the facts asked to be incorporated and pleaded in a supplemental answer go to divest the plaintiff of the right to maintain the action, and transfer the cause of action to another who has received satisfaction for the de- mand involved in it, it is the duty of the court to grant the motiim, whether the motion be made at the earliest day or not. {Drought v. Curtiss, 8 How. Pr. 56.) See, however, Morel v. Garelly, (16 Ab. 269,) where it is said that the application should be made promptly. In California, where circumstances occurring subsequently to the commencement of the action render it proper, the same may be presented by supplemental pleadings, and issue taken thereon in the same manner as in the case of original pleadings. (Gal. Pr. Act, § (37 ; Van Maren v. Johnson, 15 Cal. 311.) "When a female party subsequently marries, her husband must be joined with her, and this should be done, and an avermei't of the maiTiage be made, by supplemental pleading, and not by amendment of the original. (Van Maren v. Johnson, supra.) If the defendant, in an action to recover the possession of real estate, has acquired title to the premises , pending the litigation, evidence of this fact cannot be introduced, unless it is pleaded as a defence in a supplemental answer. (McMinn v. O'Connor, 27 Gal. 246.) In such an action, title acquired by defendants pendente lite, and other matters of de- fence arising subsequent to the commencement of the suit, must be set up by a sup- plemental answer in the nature of a plea puis darrein continuance. (^Moss v. Shear, 30 Gal. 468.) So a transfer of title by the plaintiff to another, since the commence- ment of the action, must be set up in the original, or in a supplemental answer. (lb.) In Kentucky, ffisconsin, Minnesota, Kansas and Ohio, the plaintiff and defend- ant, respectively, may be allowed, on motion, to niake a supplemental complaint, answer or reply, alleging facts material to the ease, occurring after the tiling of the former petition, answer or reply. (Kentucky Giv. Code, $ 162 ; Gode of "Wisconsin, § .So ; Pub. Stat, of Min., p. 541, §' 93 ; Code of Kansas, $ 152 ; Civ. Code of Ohio, J 142.) In Indiana, by the Code, the court may, on motion, allow supplemental pleadings, .showing facts which occurred after the former pleadings were filed. (2 Rev. St. 102, 5 50.) Under the present system in that state, common law practice and chan- cery practice being blended together, section 102 not onlj provides a substitute for jjloas puis darrein continuance, but provides also for some of the cases in which supplemental pleadings were necessary or proper under the practice of the court of chancery. (Bicknell's Giv. Prac.lOS.) It seems that now as heretofore, where the 366 Chap. 6.] PROCEEDINGS TO A DECREE. 165 The court, with a view of guarding the rights of the complainant, requires to be clearly satisfied that justice requires the filing of a sup- plemental ansv^er. In making the application, therefore, the defendant must state specifically what he wishes to put upon record, in order that the court may judge how far his application is reasonable, (o) And a supplemental answer will not be allowed to be filed unless on new mat- ter, nor unless a sufficient reason appears for not having inserted it in the original answer, (jt?) "Where it was evident, however, that an omis- sion in the answer must have arisen from a mere slip, the court allowed the defendant to file a supplemental answer for the purpose of supply- ing the omission, without any affidavit in explanation, (g) Where, after answer filed, the defendant obtained an exemption of his person from imprisonment, under the act, it was held that he might file a sup- plemental answer to present that fact. («•) So where, in a suit for a divorce, the complainant commits adultery after the answer of the de- fendant is put in, she will be permitted, if she applies immediately after the discovery of the fact, to set up that defence in a supplemental an- swer, or by a cross-bill in the nature of a plea fids darrien continu- ance, (s) It is material to observe, that if a defendant is allowed to correct a mistake by a supplemental answer, he is held strictly to that mistake; and if he goes beyond that and makes any other alteration in the case than what arises from the correction of such mistake, his supplemental answer will be taken off the file, (t) Co) Curling v. Mai-qnis of Townshend, 19 Ves. 628. fp} Tennatit v. Wilsmore, 2 Anst. 362. (gj Scott V. Carter, 1 Young & Jer. 452. frj Anon., Hopk. 27. Csj Smith V. Smith, 4 Paige, 433. (tj Strange v. Collins, 2 Ves. &B. 167. matter to be introduced existed before the suit was commenced, an amendment is proper ; but where the matter arises after the institution of the suit, or plea pleaded, a supplemental pleading is proper. And thi.s is true in general, whether the suit be for an equitable or for a legal right. (Id. 109.) Leave to file a supplemental plead- ing will not be granted without cause shown to the court, which is done by filing an affidavit that the matter of the proposed supplemental pleading is true, and arose after plea. (Ibid.) Such supplemental pleading necessarily waives everything in the former pleading inconsistent with it, and such a pleadiug bv the defendant must be pleaded in bar of the further maintenance (mly of the action. (Id. 110.) It has been decided in the United States courts, that where the circuit court, after a reversal of its decree, further proceedings being awarded, allowed a supplemental answer, to bring before the court the facts which were proper to be knowu before instructions were given to the master as to the mode of settling the accounts, this was proper; and that no objection could be taken to it on a subsequent appeal ( Williams v. Gibbes, 20 How., IT. S. 535.) A supplemental answer to a bill of fore- closure should embrace new matter discovered subsequent to the filing of the original answer. (Suydam v. Truesdale, 6 McLean, 459.) "W"here a defendant has answered generally to a matter of which he has no particular knowledge, he may be allowed to file a supplemental answer on the same subject, after he has acquired particular information concerning it, and to introduce into such answer new matter which has come to his knowledge since filing the original answer, on furnishing the opposite party with the names of the witnesses by whom he expects to prove it. (^Carter v. Wood, I Baldw. ;i89.) 367 2g7 PKOCKKIIIXCS TO A DKCREE. [15i)()k I. [*i67] *The defeiidciut will not beiiUowed to file a supplemental an- swer contradicting the statements in the first answer, (m) Therefore, where an original bill has been filed and answered, and afterwards a peti tion is filed to amend the prayer of the bill, and the prayer is amended, and new matter introduced; and the defendant, without leave, files another answer, (in which, without replying to the new matter,) he essentially alters and new models the matter of his original answer, the court may order the new answer to be taken off the files, {v) There appears to be no particular limit to the time within which an application for leave to file a supplemental answer will be granted ; pro- vided the cause is in such a state that the complainant may be placed in the same situation that he would have been in had the original an- swer been correct. Accordingly, in several instances such applications have been granted after I'eplication filed, (w) But where the complain- ant cannot be placed in the same situation that he would have been in had the defence been stated on the record at the proper time, the court will not permit a supplemental answer to be filed, {x) Therefore, where an application for that purpose was made after the cause had been set down for hearing, the court denied it, with costs, {y) But although the rule of practice now is, that in cases of mistake in the statements or admissions in an answer, or in analogous cases, the defendant will not be permitted to amend his answer, bait must apply for leave to file a supplemental answer for the purpose of correcting the mistake, the old course of taking the answer off the file and amending it is still pursued in cases of error or mistake in matters of form. (2) Thus, where the title of an answer was defective, a motion by the de- fendant to take it off the file and amend and re-swear it, was granted, (a) And so where in the title of an answer the name of the complainant was mistaken, a similar order was made, [h) The addition of the name of a party omitted in the title, has also been permitted, (c) So, also, the defendant has been permitted to add the schedules re- ferred to in his answer, where they have been accidentally omitted, [d) And in several cases in the court of exchequer, where verbal inaccura- cies have crept into answers, they have been ordered, at the hearing, to [*168] *be struck out. (e) In general, however, the court will not per- (u) Greenwood v. Atkinson, 4 Sim. 61. (V) Thomas v. VLsUors of Freiierick School, 7 Gill & John. 389. (w) i Dan. 343. 19 Ves. 628. 1 Sim. 505, (X) Id. ib. (y) Maodougal v. J'unier, i Kuss. 486. (z) 2 Dan. 343. (a) White v. Godbold, 1 Mad. 269. (b) Peacock v. Duke of Bedford, 1 Ves. & B. 186. 1 Fow. Ex. Pr. 389. (c) 1 Fow. Ex. Pi-. 3S9. (d) Id. lb. (e) Ellis V. Saul. 1 Anst. .'!32. ^'ide Jesus College v. Gibbs, 1 Young & Col. 162. 1 Younge, 38i. 368 Chap. C] FROCEEDixGn TO A decrf:e. 158 mit such amendments as those above mentioned, without making it part of the order that the answer shall be re-sivorn. (/) Tlie court has also permitted an answer to be amended, by adding the name of the counsel who signed tlie same to the record, {g) The application, eitlier for leave to amend the answer, or to file a sup- plemental answer, when granted, is generally upon the terms of paying costs to the complainant for opposing the application, and furnishing the complainant's solicitor with a copy of the amended or supplemen- tal a,nswev gi'aiis ; giving him the usual time to except thereto. Of taking ansioers off the fi,le.\ In case any irregularity has occurred, either in the frame or form of an answer, or in the taking or filing of it, the complainant may take advantage of such irregularity by moving to take the answer off the file. {Ji) Thus, where a defect occurs in the title, so that it does not distinctly appear whose answer it is, or to what bill it is an answer ; (i) or where the complainant is misnamed in the title, [k) the answer may, on motion by the complainant, be ordered to to be taken off the file for irregularity. But, in such cases, the motion should not be to take the " answer of 0. D." &c. off the file ; but it should be called, in the notice, "a certain paper writing purporting to be the answer," &c. {I) The auswer, in case of a defect in the title, may also be taken off on the application of the defendant. Bat as such an answer is a nullity, a motion for that purpose is unnecessary. The de- fendant may leave the answer upon the file, and put in another. (/«) So where an answer has bean prepared for five defendants, it cannot be received as the answer of two only, {n) nor can it be received as the answer of six, (o) and where such an answer has been filed, it will upon application of the complainant, be ordered to be taken off the file, {p) It seems, however, that after such an answer has been filed, the defend- ant may apply, by motion, to have it taken oft" the file and amended by striking out the names improperly introduced, {q) If the signature of counsel is not affi.xed to the answer, the answer *will also be taken off the file on the application of the com- [*169] plainant. (r) (85) So it will if it is not signed by the defendant; swid (f) Peacock v. Duke of Bedfonl, 1 Ves. & Bea. 1S6. Lord Monoaster v. Braithmiite, I Yoiinge. 33i. (S) IliiiTisoii v. Delmont. I Price, 108. 2 Young & Col. .i. (h) 2 Dan. CIi. Pr. 343. (i) Pieters v. Thompson, Cooii. iW. (k) Griffiths v. Wood, U Ves. 62. (I) Id. ib. (m) Id ib. (^i) Harris v. James, 3 Bro. C. C. :! li ro) Cope V. Parry, 1 Mad. 83. f^iJCookev. Wcstall, 1 Mad. 265. Sed vide 2 Ves. & Ji. .ilO. (q) Id. ib. (r) Wall v. Stubbs, 2 Ves. & B. XiS. (85) A party ha.s a right to suppose that the pleatling served on him is a correct copy of that filed ; and whei-e the copy of an answer contains neither the signature of solicitor or counsel, nor has a jurat, the plaintiff may appl.y to take the answer off the files fop irregularity. {Littlejohn v. Mimn. 3 Paige, aSO ; Supervisors, ^c. v. Mississippi, 4-c. li. R. Co. 21 111. 338 ; Spiceij v. Frazee, 7 Ind. 661 ; MoLure v. Colelough, 17 Ala. 89.) Vol. 1—24 369 2Q9 PROCEEDINGS TO A DECREE. [Book I. this too although an answer on oath was waired by the bill, (s) Sc where the defendant files a new or supplemental answer to an amended bill without leave, the court may order it to be taken off the files. (Jt) So where the answeris filed without oath, (m) (86) Or where the answer of a foreigner who does not understand English, is not put in in the lan- guage he speaks, together with an English translation, but in English only, (y) Or where a separate answer is put in without leave, by one of several defendants, after the others have answered and a replication has been filed, proofs taken, and the cause set down for hearing, (iv) So where an answer is very evasive, the court may order it to be taken off the file. {%) But where the defendant merely stated " that he had no know- ledge of any of the matters in the bill mentioned," the courtof erhequer refused to order theanswer to be taken off the file on the alleged gn, und that it was illusory ; but left the complainant to except, {y) And an answer, however evasive, will not be ordered to betaken off the file after the complainant has excepted to it. (2) If a married woman puts in an answer separately from her husband, without a previous order of the court authorizing it, her answer may be taken off the file, [a) The same rule prevails where the husband an- swers separately from his wife without leave. (5) And in a case where the joint answer of husband and wife was sworn to by the husband only, it was ordered to be taken from the file, (c) So an answer taken under a commission will be taken off the file if the jurat does not state where it was sworn to. (cZ) An answer may also be ordered to be taken off the file for the purpose of being produced before the grand jury on an indictment for perjury preferred by the complainant, (e) (87) But this will not be permitted if (s) Denison v. Bassford, 7 Paiffo. .STO. (t) Thomas v. Visitors of fi-eilerick School, 7 Gill. & John. S89. (u) Ti-urabnUv. Gibbons, Halst. Dig. 17'i. Nesbettv. Dellaiii, 7Gill. & John. 494. In Rogers V. Crnger, (7 Joliii. iioS, 581.) the answer of a guardian ad litem of an infant defendant wag orriereil to be taken from the rile lieoause it was pntiu without oath. (v) Haves v. Leqnin, 1 Uogan, 274. (w) Fa'ltou Bank v. Beach, 2 Paige. 307. 6 Wend. 36, S. C. (xj PliiUips V. Overton. 4 Havw. 292. (y) Olding V. Glass, 1 Young & Jor. iVS. (z) Glassington v. Tliwaites, 2 Riiss. 458. (a) Perine v. Swaine, 1 Jithii. Ch. Rep. 24. Prac. Reg. 53. (h) Iiea\'itt V. Crnger. 1 Paige, 421. G) New York Chemical Co. v. Flowers and wife, 6 Paige, Gi>4. (d) nenry v. Costello. I Ho,!;:an. 1.10. (e) Thompson v. Urosthwaite, i Young & Jer. 513. Curtis v. — , 1 Hogau, 132. (86) But if the plaintiif waives an answer on oath, he cannot apply to have the answer taken off the files, on the ground that the defendant itnows it to be wholly untrue. His only remedy in such a case is at the hearing to ask to have the defend- ant charged personally with the costs to which he has improperly subjected the plaintiff by false pleading. {Denison, v. Bassford, 7 Paige, 370.) (87) An application to take an answer off the files, in order to prosecute for per- jury, is made to the discretion of the court, aud will not be granted unless some ground is laid to enable the court to judsre of the propriety of such a proceeding. {Daly V. Toole, 1 Irish Bq. 344 ; S. C. -i Dru. & W. 599.) 370 Chap. 6.] PROCEEBIKGS TO A DECREE. l70 it *appear that the alleged perjury is in a part wholly immaterial [*170] to the merits of the cause. (/) It is to be observed that if the complainant intends to apply to the court for an order to take an answer oflf the file for an irregularity, be should do so before he accepts the answer; otherwise the right to make the application will be considered waived ; except in the case of an irregularity in the jurat or of an omission of the oath of the defendant , in which cases there can be no waiver of the irregularity. ( g) It being a universal principle, in all courts, t\ia.t jurats and affidavits, when con- iTary to practice, are open to objection in any stage of a cause. (/«) Hxceptions to answers will be considered in a future chapter, (t) SECTION VI. DISCLAIMEE. A disclaimer is where a defendant, upon oath, denies that he has, or claims any right to the subject matter in demand by the complainant's bill ; and renounces all title thereto. Where a person who has no interest in the subject matter of a suit, and against whom no relief is prayed, is made a party, the proper course for him to adopt, if he wishes to avoid the discoyery, is to demur ; un- less the bill states that he has or claims an interest. In which case, as a demurrer, which admits the allegations in the bill to be true, will of course not hold, he can only, (except in cases of partial discovery, to which he may object by answer,) avoid putting in a full answer by plea or disclaimer, {k) Although, strictly speaking, a disclaimer is distinct from an answer, yet it cannot often be filed alone, but is usually put in under the title of an answer. For, although the defendant may not at the time he disclaims, possess any interest in the matter, yet he might have had an interest which he has parted with. And this circumstance, it seems,. *would entitle the complainant to an answer as to the certainty [*171] of the fact ; in order that, if such is the case, he may be enabled to make ^ ^',ie proper person a party instead of the defendant. {I) (f) MoGowaii V. Hall, 1 Hayes, 17. (q) 2 Dan. 344. 280. (hj 111. 280. Pilkington v. Himsworth, 1 Yonng & Col. fil3. But in the case of Nesbitt v. DMam l7Gill. & John. 494, i wh«rf trie oalh of llie defendant to the answer was omilted, but the complainant proceeded with tae cause without making that objection, it was held that he conld not avail himselfof itin the appellate court. (i) BOOK I, Ch. VII, Sec. 1. rW 2 Dan. 233. Mitt 153. (I) Mitf. Bq. PI. 257. 0.\enh.ira v. ISsdale, llcCle. & Voung, 540. 371 ]71 pitocEEDixas ro A DECREE. [Book I A defendant cannot shelter himself from answering by alleging that he has no interest in the matter of the suit, in cases where, though ho may have no interest, others may have an interest against him. Thus it has been held that a party to an account cannot, by disclaiming an interest in the account, protect himself from setting out the accounts. (?«) So a defendant who has improperly interfered with a party's right so as to make a suit necessary, may be compelled to answer the whole bill with a view to charge him with costs, notwithstanding a disclaimer, (ii) So if a fraud be charged against the defendant, he must answer as to the fraud, and cannot put in a disclaimer only, (o) And a disclaimer by one of several defendants cannot be permitted to prejudice the com- plainant's right as against the others, {p) (88) A disclaimer, though in substance distinct from an answer, is in point of form an answer, and is put in and filed in the same way ; and the same formal words which precede and conclude the one are pursued as to the form of the others, {q) The form of a disclaimer is simply that the defendant disclaims all right and title to the matter in demand. A disclaimer is put in upon oath. It must also be signed by the de- fendant; and in no case can such signature be waived with propriety, since it is a rule that no record will be received without signature, which tends to prejudice the rights of the defendant, (r) Should there appear any inconsistency between the answer and dis- claimer, the matter will be taken more strongly against the defendant upon the disclaimer than upon answer ; since it is only by the latter that the defendant's title can be ascertained, [s) But the defendant may answer as to one part of a bill and disclaim as to the other part. A defendant is not absolutely estopped by his disclaimer from afte ,•- wards insisting upon a claim. (;!) Thus, if a party has disclaimed iri ignorance of his rights, and afterwards discovers the same, he may ap- ply to the court to get rid of the effect of the disclaimer, upon a distinct Cm) Glnssington v. Thwaitcfl, 2 Riiss. 458. (n) Hutohiiison v. Reerl, 1 Hoff. (Jli. Rep. 315. (o) Bnlkeley V, Dnnbar, I Anst. 37. (pj WiUiums V. Jones, 1 Yonnsre. 2.r2 Hill v. Adams, 2 Atk. 39. (q) 1 F(i\v. Ex. Pr. 351. Hiiiile, 'i09. (rj 1 Smith, 198. (s) Mi If. iU. (t) Brancti v. Sparse!, Harr. 235. (88) A defendant cannot, by disclaiming, deprive ttie plaintiflf of the right to re- quire a fnll answer from him, unless it is evident that the defendant should not, after the disclaimer, be continued a party to the suit. (ElUworth v. Curtis, 10 Paige, 105.) Where a f:imple disclaimer is filed, a plaintiff who is entitled to an answer must move to take the disclaimer off the files, and he cannot except. But if the disclaimer is accompanied by an insufficient answer, the plaintiff should except to the answer. (lb.) No replication is necessary in order to bring a disclaimer to a hearing. (Spofford V. Manning. 2 Kdw. Ch. 358.) 373 Cliap. 6.] PROCEEDINGS TO A DECREE. \^\ applicatiott siippoi'ted by affidavit, establishing a special case, (m) But he *must make out a very strong case, upon affidavit, to get rid [*172] of such a disavowal of title, {v) If the defendant puts in a disclaimer where he ought to answer, or accompanies his disclaimer by an answer which is considered insuffi- cient, the complainant may except to it in the same manner as to an answer, {w) It seems, also, that if a defendant, under pretence of put- ting in a disclaimer and answer, puts in a mere disclaimer without any answer, such a proceeding will be considered evasive, and the pretended disclaimer and answer will be taken off the file. But if the complain- ant, instead of applying to the court in the first instance, excepts to the disclaimer, he will be precluded from afterwards moving to take it ott the file, {x) A defendant who disclaims may be examined as a witness by a co- defendant ; {y) but the complainant cannot read his evidence in support of his own right, to the prejudice of another defendant. (2) Where a disclaimer to the whole bill has been filed, the complainant should not reply to it. His proper course is, either to dismiss his bill as against the party disclaiming, with costs, or to amend it. He may also set the cause down upon the disclaimer ; in which case, if he can satisfy the court that he had probable cause or reason to file his bill against such defendant, he may have a decree against such defendant, and all claiming under him, without costs on either side. («) But if it should appear in such a case that the defendant was made a party with- out probable cause or reason, the complainant will be ordered to pay him his costs. (5) If the complainant replies to a general disclaimer, and serves the de- fendant with a subpcEna to rejoin, the defendant will be entitled to have his costs taxed against the complainant, for vexation. But it is other- wise where the disclaimer is to part, and there is an answer or plea to another part of the same bill. In such cases the complainant may file a replication to the plea or answer, (c) It seems, however, that the defendant is not bound to wait for his costs till the hearing of the cause. If he think that he has been made a defendant vexatiously, he may apply for his costs by motion, on notice to the complainant, as soon as the complainant's time for amending his bill has expired, {d) But if the complainant can succeed in satisfying (u) RitJden v. Lediard. I Rtiss. & Mj'. 110. (v) Seton v. Slade, 7 Ves. 287. (w) (i lassington v. Thwaitss, % lluss. 433. 1 Anst. 37. (x) Id. ib. (y) Seton v. Slade, 7 Ves. 267. (z) Hill V. Adama. 2 Atk. 39. fn) Vnc. Keg. 17.i. (b) Hinde's Pi- 209. (c) Williaiiid v. LoiigfolUw, 3 Atk. 5S2. (d) Hinde's Pr. 209. 373 ]^73 PROCEEDIXGS TO A DECREE. [Book I. [*173] *fche court that he had just ground for making the defendant a party, probably the latter would take nothing by his motion, in such a case, (e) SECTION VII. JOIKDER OF SEVERAL DEFENCES. Having in the preceding sections of this chapter, given an outline of the various methods of defence which may be resorted to by defend- ants in this court, it remains to show in what cases, and in what man- ner, those defences may be joined or combined. The rule is general, as we have already observed, that all or any of the customary modes of defence may be joined; provided each relates to a separate and distinct part of the bill. Thus, a defendant may demur to one part of the bill, plead to another, and disclaim as to another. (/) He may also put in separate demurrers to separate and distinct parts of the bill, for separate and distinct causes. For the same grounds of demurrer, frequently, will not apply to different parts of a bill, though the whole may be liable to demurrer; and in that case the demurier may be overruled, upon argument, and another allowed, {g) Tlie defendant may also plead different matters to separate parts of the same bill. (/*) (89) (e) See 2 Dan. 236. (f) Mitf. Eq. PI. 258. (g) Id. 174, Noi-tli V. Bai-l of Slraffoi-d, 3 Peer Wins. 148. 1 Alk. 541. (h) 2 Dan. 106, 349. (89) Under the Code, a defendant may set forth by answer as many defences and coanter-claiuis as he may have, whether they be such as have been heretofore de- nominated legal or equitable, or both. They must each be separately stated, and refer to the causes of action which they are intended to answer, in such manner that they may be intelligibly distinguished. (Code, 5 150.) And he may demur to one or more of several causes of action stated in the complaint, and answer the residue (Id. § 1.51.) A defendant may plead one defence to one part of a cause of action, and another defence to other portions of the same cause of action. (Lonpworthy v. Kitupp, 4 Ab. 115.) But each defence must be complete of itself, {Baldwin v. U. S. Tehfjraph Co. 54 Barb. 505 ; S. C. 6 Ab., N. S. 405,) and each answer must stand hv itself, as a dis- tinct defence, (Sioift v. Kingsleij, 24 Barb. 541 ; Aip-es v. Covill, 18 id. 2fiO ; Hamer V. McFarlin, 4 Denio, 511,) unless it in terms adopts, or refers to, the matter con- tained in some other answer. {Baldwin v. U. S. Telegraph Co., supra.) Each de- fence sh(mld consist of allegations or averments of fact, stated positively, or upon information and belief, {Simmons v. Fairchild. 42 Barb. 409,) and answer the cause of action to which it is addressed, {Brown v. Etjclcman, 12 How. Pr. 314,) and be complete, without reference to others. {Spencer v. Babcoclc, 22 Barb. 326 ; Sinclair V. Fitch, 3 E. D. Smith, G77 ; Bridge v. Paijson. 5 Sandf. 210 ; Looseij v. Or.ier, 4 Bosw. 392; S. C. 7 Ab. :J72, 387 ; Benedict x. Seymour, 6 How. Pr. ,298.) Defences separately pleaded cannot be sastaiiied nor defeated by connecting two or more of them together, any mort^ than, formerly, special pleas could be bv so eouneoting thum. {Spencer v. Babcoclc, 22 Barb. 32j; Ayraulty. Chamberlain, 33 id. 237- Chap. 6.] PROCEEDlNaS TO A DECREE. J 73 The rules of pleading apon this sabject of the joinder of defences are thus concisely stated by Lord Kadesdale in his Treatise ou Equity Pleading : " All these defences must clearly refer to separate and dis- tinct parts of the bill. For a defendant canaot plead to that part to which he has already demui-red ; neither can he answer to any part to which he has either demurred or pleaded ; the demurrer demanding Uitohie v. Garrison. 10 Ab. 246 ; Landan v. Levy, 1 id. 376 ; Sinclair v. Fitch, 3 B. D. Smith, 677.) Bat it seBUis that a defendaat may arer, ones for all, certain facta applicable to each of several defences or counter-claims, and having averred ttem in one defence, or byway of introduction to all, thereafter refer to tdem in any other defence, distinctly and intelligibly, so a^s to include tliem in it. (Xenia Branch Bank V. Loe. 7 Ab. 3:^7 ; 2 Bosw. 6J4. See also Ayres v. Covill, 18 Barb. 2jl ; Sinclair v. Fitch, 3 E. D. Smith, 677.) There is no rule prohibiting a defendant from uniting in the same answer any kind of defence he may have, except that such defences .shall not be inconsistent ; that is to say, they must not be such that one must necessarily be false. (Van Sant. Bq. Pr. 215 ; Schneider v. Schultz, 4 Sandf. 634 ; Arnold v. Dimnn, 4 id. 6S0 ; Roe v. Rogers, 8 How. Pr. 356; Lioingston v. Harris. 2 B. D. Smith, 197 ) If ttiey are, one of them will be struck out, or the defendant will be compelled to elect by which he will abide. (Ibid.) Bat the correct rale is held to be that answers which were not inconsistent under the former practice will not be held to be inconsistent under the Code. (Lanning v. Parker, 9 How. Pr. 238.) In Willett v. The Metroj). Ins. Co. (2 Bosw. 679,) the answer, first, denied each and every allegation in the complaint, and then, in successive paragraphs, separately numbered, admitted in terms many averments of the complaint. The plaintiff moved to strike out as false either the general denial or the admissions. It was held that there was no propriety in permit- ting two statements in a pleading in direct conflict with each other ; and the court ordered that the general denial be struck out, unless the defendant withdrew the paragraphs containing the admissions. When the court assames to compel a defend- ant to elect between inconsistent defences, it mast do so on the ground that from the very nature of the case it is impossible that the defendant can have two such de- fences. {Sollenbeck v. Clow, 9 How. Pr. 2rfJ.) Answers are now regarded as incon- sistent only when one of thein is conceded w shown to be false ; {Ostroni v. Bixby, 9 How. Pr. 57;) or, as it is said in HoUenheck v. Clow, (supra,) when " the several defences contain matter so inconsistent that the proof of one defence would necessa- rily disprove the other." (See also Otis v. Ross, H How. Pr. 184.) The defendant may, therefore, subject to the above limitation, deny any, or all, of the allegations in the complauit. He may set up matter in avoidance, going to defeat or bar the same cause of action. He may set up matter in abatement, or a dilatory defence, to the same cause of action ; or he may meet it with a counter-claim, going not only to defeat the plaiutiif's demand, but showing the defendant entitled to an affirmative jndgment And the defendant may also avail himself of as mauy defences as ho pleases, whether they be such as would be strictly legal, or defences of a purely equitable nature. (Van Sant. Bq. Pr. 215.) Each defence must not only be separately stated, but plainly numbered. (Rule 25, Supreme Court.) To mark a defence as a separate defence, no formal commence- ment or conclusion is required. (Bridge v. Payson, ,5 Sandf. 210.) There is but one safe rule in stating defences, viz. : to indicate distinctly, by tit and appropriate words, where the statement of each defence comincMces, and where it cimclndes. (Lippen- cott V. Goodwin, 8 How. Pr. 242.) To c.iuimence each defence, " and the defendant further says," is not sufficient. (lb.) Bni it seems it is sufficient to commence, " and for a further defence." (Benedict v. Sjyni'iitr. 6 How. Pr. 2JS.) A failure to comply with this rule subjects every allegation vvnich is not essential to a single cause of action to be stricken out, if objected to, as redundant, (lb ; Lippencott v. Goodwin, supra; Robinson v. Jadd, 9 id. 378, Sii.) Where distinct causes of action are not separately stated or plainly numbered, the remedy is by motion to have tno pleading made more deiinite and certain. (Uolton v. Jones, 7 Hod. 164; Woody. Antliony, 9 How. Pr. 78.) An objection for this delect cannot be raised by demur- rer. (BassY. Comstock. 38 N. Y. 21; Cultun v. Junes, supra; Dormanv. Kellam, 14 How. Pr. 184.) Wnea a party intends to insist on this objection, he should return the ^pleading, with his objection; ocherwise tae objection will be deemed waived. •616 173 PROCEEDIXGS ro A DECREE. [Book I. the judgment of the court whether ho shall make any answer, and the plea whether he shall make any other answer than what is contained in the plea. ISTor can the defendant, by answer, claim what, by dis- claimer, he has declared he had no right to. A plea or answer will therefore overrule a demurrer, and an answer a plea. And if a dis- claimer and answer are inconsistent, the matter will be taken most strongly against the defendant upon the disclaimer." {i) (i) Mitf. Eq. PI. 258. {OorhiiiY. George,^ A.\t. AQh; Sawyer y. Schoonmaker, 8 How. Pr. 198; Strauss y. Parker, 9 id. 342.) The separate grounds of defence, separately stated, take the place of separate pleas under the former system. {Cobb v. Frazee, 3 Code Rep. 43.) Formerly, a defendant might plead as many separate matters as he should think his defence required, subject to being compelled by the court to elect oa which pica he would rely, or in cases where his pleas were inconsistent. (2 R S. :552.) But the Code contains no provisions which allow an answer to be struck ont on the specific ground of inconsistency as such. (Ostrom y Bixbi/, 9 Row. Pr. 57 ; MoUeiibecky. Clow, id. 289 ; Smith v. Wells, 20 How. Pr. 158.) A. defendant, after having iulerposed an answer, will not be allowed to withdraw it and put in a demurrer, unless special reasons are shown.' {Finch v. Pindon, li) Ab. 96.) "Where the defendant both answers and demurs to the same pleading, the defend- ant can treat neither the answer nor the demurrer as a nullity; but he should move to strike out the demuiTer or the answer, or for an order that the defendant elect by which he will abide. {Spellinan v. Weidcr, 5 How. Pr. 5; Howard v. Micliigaii Southern R. B. Co., id. 20o ; S. C. 3 Code R. 213. See also Clarkson v. Mitchell. 3 E. D. Smith, 269 ; Bolton v. Gardner, 3 Paige, 273 ; Clark v. Phelps, 6 John. Ch. 214.) A defendant cannot answer and demur to the same matter or count. {Mann v. Barnum, 12 How. Pr. 563 ; S. C. 1 Ab. 281 ; Spellinan v. Welder, 5 How. Pr. 5.) "Where an answer contained an objeotiou of want of parties, it was held to be a de- murrer, aud the defendant was oouipelled to elect whether to. abide by the answer or the demurrer. {Struver v. Ocean Ins. Co. 16 How. Pr. 422.) To determine whether a defence is a demurrer or an answer, it is only necessary to a.scertain whether it re- quires that any facts should be proved or not. (Ibid.) An answer to a part of the complaint sliould so distinctly specify that porticra to which it applies, that the court can at once see what it covers. {Damson v. Scher- merhorn, 1 Barb. 480.) An answer containing a general and a specific denial of the same matter is bad for redundancy, and the defendant will be compelled, on motion, to elect which ho will retain. {Uennison v. Dennison, 9 How. Pr. 246 ; Blake v. El- itred, 18 id. 240.) Under the head of equitable defences are included all matters which would for- merly have authorized an application to the court of chancery for rehef against a legal liability, but which, at law, could not have been pleaded in bar. {DobsonY. Pearce, 12 S. T. 156 ; S. C. 1 Ab. 103 ; 1 Duer, 142 ; Sheehan v. Hamilton, 3 Ab., a. S. 197 ; S. C. 2 Keyes, 804.) A strictly equitable defence may now be opposed to a legal cause of action. {Foot v. Sjyrague, 12 How. Pr. 355 ; Hunt y. Farmers' Loan 4- Trust Co. 8 id. 416; Burgett y. Bissell, 5 How. Pr. 192 ; S. C. 3 Code R. 215; Hinenan v. Judson, 13 Barb. 629; Sheehan v. Hamilton, supra.) Section 150 of the Code is a statutory prohibition against duplicity in stating two defences together. {Boyce v. Brown, 7 Barb. 80; S. C. 3 How. Pr. 391.) But an answer denying two allegations, both of which are necessary to make out a good cause of action, does not contain a double defence. {Otis v. Boss, S How. Pr. 193 ; S. C. 11 2sf. T. Leg. Obs. 343 ) This secti(m does not relate to defences of mere de- nials. (Ibid.) "Where an answer, first, denied each and every allegation in the com- plaint C(mtaiued, and then, in successive separately numbered paragraphs, admitted, m terms, many averments of the complaint, the general denial was, on motion, or- dered to be struck imt as false, unless the defendant withdrew the admissions. ( IVillet V. Metropolitan Ins. Co. 2 Bosw. 679.) The following defences may be pleaded together: In an action for false repre- sentations, a general denial, aud the truth of the representations made. {Otis v. ■37(j Chap. 6.] PROCEEDINGS TO A DEGREE. 174 *To which it may be added tliat where a defendant adopts dif- [*174] ferent modes of defence, it is necessary, not only that each defence should in words, be applicable to the distinct part of the bill to which it pro- fesses to apply, but that it should be so in substance. And if a defence, though in words applicable to part of a bill only, should on the face of it be applicable to the "whole bill, it will not be good, and cannot stand in conjunction witli another distinct defence, which is applicable and applied to another distinct part of the bill, {k) (k) Crouch V. HiCKin, 1 Keen, 3S5. Koss, 8 How. Pr. 193; S. 0. 11 K. T. Lug. Obs. 34'3.) In an action to recover the posse^^siou of personal property, a general denial, and jnstificati(>n of the talcing (Sacklei/ v. Ogman, 10 How. Pr. 44.) A general denial and infancy. (Mott v. Ben- iiott, 2 B. D. Snrith, 52.) A denial of knowledge or information sufficient to form a belief a-* to the title of the plaintiff, and a Uen on the property in suit. (Towiiseiul V. PloAt, 3 Ab. 325.) A denial of the full amount claimed, an admission of a ei-rtain amount due, and a tender of that amount, are all but one defence. (Spencer v. 'looker , 12 Ab. 353 ; S. C. 21 How. Pr. 33;J.) The provisions of the Ohio Code, in respect to joinder of defences, are the same as those of section 150 of the Kew Torlc Code. (Code of Ohio. § 93.) It has been held in that state that there are three kinds of defence which may be set up in an answer: 1 Matters which, by the oommcm law, were usually pleaded in bar of the action. 2. Counter-claim. 3. Set-off. A Ithough the answer may be so unskilfully drawn as not to distinguish between the three, yet if it contains sulficient facts to show a defence under either, the court will not permit the defendant to be prejudiced by not making the proper distinction in his answer between the three kinds of de- funee. (Hill v. Butler, 6 Ohio State Rep. 207.) The Code system of pleading in bar of the nrerits of an action, authorizes defences by answer, setting up, 1. General or specifio deuials ; 2. jSTew matter specially pleaded ; 3. Counter-claim ; 4. Set-off; 5. Equitable defences. (S/mc v. jStorter, 1 Wes. LawMimthly ; Seney's Code, p 134.) A pleading under the Code, which sets up two or more defences, but omits to sepa- rately state and number' them, is not for that reason demurrable. The irregularity ;au be reached only by motion. (Hartford Toionship v. Beiinet, 9 Ohio State Rep. ; 3ited, Seney's Code, p. 135.) The defendant may now plead various matters of de- fence which could not be entertained prior to the Code, either on account of the sep- aration of the law and equity jurisdiction of Courts, or the forms of actions and of pleadings. (Hill v. Butler, 6 Ohio State Rap. 607.) In Indiana, the statutory provisions on the subject of joinder of defences are simi- lar to those of N'ew York and Ohio. (2 R. S. 39, sec. 56.) The Code of Kentuehi/ contains the same pnivisions also. (Code, § 125.) So of Wisoonsin, (Code, J 58,) Kannas, (Code, J 102,) and Minnesota, (Civil Code, § 73.) In California, a defendant may set forth, by answer, as many defences and counter- claims as lie may have. They must each be separately stated, and the several defeuoos must refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished. (Cal. Pr. Act. J 49.) Ha may demur to the whide complaint, or to one or more of several causes of action stated therein, and answer the residue, or may demur and answer at the same time. (Cal. Pr. Act, ^ 42; People -v. MeClellan, 3L Cal. 101.) This, however, does not justify the mixing of law and fact in the sania answer. (Brooks v. Douglass, 32 Gal. 208.) Filing an answer is a waiver of a demurrer previously intcrp ised. (De Boom V. Priestlij, 1 Cal. 20 j ; Pierce v. Minturn, id. 470 ; Brooks v. Minturn, id. iil ; Bibend v. Kreuts, 20 id. 103 ) Where there is an issue of law and of fact, in the natural order of business, it is the duty of the court first to try and decide upon the equitable defence before proceeding with the action of law. (Martin v. Zeller- bach, cited 2 Estee Pr. 643.) Upon a demurrer to a distinct defence, stated sepa- rately in an answer, no resort oau be had to other pjrtious of the answer to sustain such defence, for each defence must be complete in itself. (Siter v. Jewett, 33 Cal. 92.) Several defences may be set up in an answer, (Oal. Pr. Act, § 49,) but if they are contradictory, it is bad. (Bell v. Brown. 22 Cal. 671.) If an answer sets up iu- oonsistent defences, and no objection bj made by mjtion to strike out, or by demur- 377 174 PROCEEDIXas TO A DECREE. [Book I. When a demurer is put ia to part only of the bill, and is accompa- nied by an answer or other defence to tlie remainder, it should be enti- tled " The demurrer of 0. D., defendant, to part of the bill of complaint of A. B. ; and the answer, &c. of the said 0. D. to the remainder of the said bill of complaint." {I) The same rule is applicable to cases where the defence is partly by plea and partly by answer, except in those cases where the answer is in support of the plea. In such cases the plea and answer form but one defence, and the title is properly a " plea and answer," or, " the joint plea and answer," or, " the joint and several plea and answer," according to the circumstances, {in) After a general order for further time to answer, the defendant can- not put in a demurrer, except on special leave by the court. Where he wishes for farther time to demur, he must obtain a special order from the court for time to answer, plead, or demur. («) This will enable him to put in a demurrer coupled with a plea and answer, or either of these defences. A demurrer may also be taken under a commission to take a plea, answer, and demurrer ; but not under a commission to take an answer only, (o) Where a demurrer in connection with a plea or answer, or either of them, has been put in, the first step to be taken is to dispose of the de- (Ij Tomlinson v, Swinnerton, 1 Keen, 9, 13. (m.) 2 Diin. 205, 330. (n) Biin-Mll V. llaiiieteavix, 2 Paifre. 331. (o) Tomlinson v. Swinnerton, 1 Keen, 9, 13. rer, the defendant may, on the trial, rely on any one of snch defences. (KlinJc v. Cohen, 13 Gal. 623 ; Uridias v. Morrell. 25 id. 35.) Under section 46 of the Code, there are only two classes of defence alhiwed. The first consists of a simple denial, and the second of the allegation of new affirmative matter. And as the Code has abolished all distinctions in the forms of action, and requires only a simple state- ment of the facts constituting the cause of action or defence, these two classes of defences must be the same in all cases. {Piercy v. Sabin, 10 Cal. 22.) In Massachusetts, a defendant may demur to one part of the bill, plead to another, answer to another, and disclaim as to another. (Rule 21 of Mass. Ch. Prao.) Ruhi 6 of the Maine Chancery Practice is the same. Or, in Massachusetts, the defendant may, instead of filing a formal demurrer or plea, insist on any special matter in his answer, and have the same benefit thereof as if he had pleaded the same, or de- murred to the bill. (Kale 28, Chancery Practice.) So in Maine, the defendant may have the benefit of a plea by inserting its substance in his answer. (Rule 6, Chan- cery Practice.) In the United States courts, the defendant 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 the residue. (Rule 32 of the Equity Rules.) No demurrer or plea shall be held bad, and overruled, on argument, merely becs.use such demurrer or plea shall not cover so much of the bill as it might by law have extended to, or merely because the answer of the defendant may extend to some part of the same matter covered hy such demurrer or plea. (Rales 33 and 37 of the Equity Rules.) A. demurrer to s. part of a bill, followed by an answer as to the residue, is not deemed overruled or withdrawn by the answer. {Pierpont v. Fowle. 2 "Vfoodb. & Mi. 23.) But in Bell v. Railroad Co. (4 Wal. U. S. 598,) it was held that filing a' answer was a waiver of irregularities previously set up in a demurrer. 378 Chap. 6.] PROCEEDINGS TO A DECREE. Vl ^ murrer and also of the plea, if there is one, (unless it is intended to ad- mit that it is a valid defence if true ;) and for this purpose the. demurrer and plea must be noticed for argument in the usual way. ( p) If there shoiild be any impertinence .in the plea or answer, however, it should be erpunged before setting down such plea or answer; as the setting down a plea for argument is a waiver of the impertinence, {q) But the *complainant must be careful not to amend his bill, or to except [*175] to the answer for insufficiency before the demurrer and plea have been disposed of: otherwise the validity of such plea or demurrer will be admitted, (r) If upon the argument the demurrer and plea, or either of them, are overruled, the complainant may file exceptions for insuflSciency, extend- ing not only to the answer, but to the parts of the bill which were in- tended to be covered by the plea and demurrer. But if the demurrer and plea, or either of them, are allowed, the exceptions must not extend to the parts of the bill covered by them, (s) Where a partial demurrer has been allowed, the proper course is to amend the bill, either by strilving out the part demurred to, or by making such alteration in the bill as will obviate the ground of demurrer. Thus, after a partial de- murrer has been allowed, ore tenus, for want of parties, the bill may be amended by adding the necessary parties, or stating them to be out of the jurisdiction of the court. And it seems that such an amendment will not preclude the complainant from excepting to the answer as to those parts of the bill which are not covered by the demurrer, (t) (p) 2 Dan. 351. (a) Dixon v. Olmiiis, 1 Cox, 412. (r) 2 Dan. 219, 351. 3 Peer Wm3. 326. Boyd v. SliUs, 13 Ves. 83. Mitf. 236. (») Cotes V. Tiiroer, Bnnb, 123. (i) Taylor v. Bailey, 6 Law J. Uf. S.) 222. Foster v. Fisher, i id. 237. 379 -[>JQ PROCEEDINGS TO A DECREE. [Book J. [•176] *CHAI>TER, VII- PEOCEEDINGS OIST THE PART OF THE COMPLAINANT PREVIOUS TO REPLYING. Sect. 1. ExcEPTiKG TO Answer. 2. Ambstdhstg Bill of Complaint. 3. Dismissing Bill by Complainant. 4. Motion foe Peoduction and Inspection of Deeds, &c. 5. Motion foe the Payment of Money into Ooubt. SECTION L excepting to answer. Exceptions to au answer are of two kinds — for insufficiency, and for scandal and impertinence. The former lie where the answer does not sufficiently respond to the allegations and charges in the bill ; and the latter where the answer contains scandalous or impertinent matter. (1) Exceptions are allegations in writing stating the particular points or matters with respect to which the complainant considers the answer insuflBcient, as a response to the bill, or scandalous or impertinent. And the object of exceptions is to direct the attention of the court to the points excepted to, and to take its opinion thereon, before further proceedings are had ; to the end that, if the answer is insuflScient, a better answer may be compelled, or if scandalous or impertinent, that the scandalous or impertinent matter may be expunged. 1. Excejjtions for Insufficiency. In ivliat cases they lie.'] (3) Exceptions for insufficiency can only be (1) The practice of excepting to an answer, wlietlier fur insufficiency or for scan- dal and impertinence, hns become entirely obsolete in N'ew Turk, under tbe present system. The Code of Procedure contains no provisions for the talvinjc of exceptions to an answer. (2) By the 6lst Equity Rule of tbe United States cnnrtn. it is provided that after an answer is filed, on any day. tbe pbiintiff' shall be albiwed until tlie next succeed- ing rule day to file in the ch-rk's office e.xcciitions thereto fin- insufficiency, and no longer, unless a longer rime shall be allowed iiir the purpose, upon cause shown to the court or a .judge tbereol'; and if im excepti(ni .^hall be filed thereto within that period, the answer shall be deemed and taken to be sufficient. In. ^ew Hampslilrv, exceptions will be deemed wai\ed, unless allowed and deliT 380 Chap. 7.J PROCEEDINGS TO A DECREE, \*J Q sustained where some material allegation, charge, or interrogatory in the bill is not fully answered, (a) They will not lie to the answers of *corporations ; (5) nor to an answer to which the oath of the [*177] defendant is waived ;(c) because such answers are not evidence. Nor will exceptions lie to the answer of an infant, because he is not bound by it, but may put in a new answer when he becomes of age. {d) It would therefore be useless, and occasion unnecessary expense, to call upon an infant to put in a full answer to the complainant's bill. Neither can the answer of the attorney general be excepted to for in- sufficiency, (e) But the answers of lunatics or idiots, put in by their committees or guardians, may be excepted to. (/) Exceptions founded on verbal criticism, slight defects, and the omis- sion of immaterial matter, will be disallowed and treated as vexa- tions. ( g) Where the matter of the bill is fully answered, and the defendant sets up new matter which is irrelevant, and forms no sufficient grounds of defence, the complainant may except to the answer for impertinence, but not for insufficiency. (/«) Where a bill requires the defendant to view exhibits before putting in his answer, and ho neglects to do so, the correct practice is to except to his answer on that ground, {i) If a nlea is ordered to stand for an answer, it is to be deemed a suffi- cient answer, as far as it covers the bill ; but the complainant may still except to the residue of the plea as an answer, {k) And if a plea is ordered to stand for an answer, with liberty to except, the complainant may of course file exceptions to the answer, or to that part of it to which he is, by the order, permitted to except. (0 But the complain- ant cannot except to the plea as an answer unless liberty to except be expressly given, {m) If a plea, or a demurrer to the whole bill not accompanied by an (a) Stafford v. Brown, 4 Paige. 8S. (b) WiiUaoe v. Wallace, HaUt. Dig. 173. {ci Rule 40 (d) Copelanrt v. Wheeler, 4 Bro. C. C. 256. !.■? Ves. 274. Leggett v. Sellon, 3 Paige, 84. (e) 2 Dan. 302. Davinson v. Atty. Gen., 5 Price, 3'.)8, n. (f) M. ib. (a) Ba?got V. Henry, 1 Erl\r. 7. (h) Stafford v Brown, 4 Paige, 88. (i) L'Escrange v. Moloney. 1 Hogan. 470. (k) Kirby v. Taylor, 6 Jolin. Cli. Kep. 342. fm; Coke v. Wilcocks, Mose. 73. 3 P. Wnis. 239. 3 Atk. 814. cved to the defendant's solicitor -nithin one month from the delivery of the answer, or unless further time be allowed by the justice. (Rule 20 of Chancery Practice.) In Massachusetts, the plaintiff mu.^t put in a general replication, or file exceptions,, or set the cause for hearing cm the bill and answer, within two calendar months after the answer shall have been filed ; and if he fail to do so, a decree for the dismissal of the bUl, with costs, may be entered. 381 177 PROCEEDINGS TO A DECREE. [Book I. answer is overruled, the defendant must answer without the complain- ant's being driven to except; but where a partial plea or demurrer is overruled, the complainant must except; as, since there is already an answer on the file, the defendant is not bound to answer farther till [*178] exceptions have been taken, [n) *A complainant may also, where a partial demurrer is allowed, except to the answer to that part of the bill which is not covered by the demurrer. He must not, how- ever, except to that part which is covered by the demurrer, (o) And where a plea is accompanied by an answer as to part of the bill, the complainant may, upon the allowance of the plea, except to the answer, as he must if a partial plea is overruled, {p) But when the answer is accompanied by a plea, the complainant can- not except to the answer until the plea is argued and an order obtained that it shall stand for an answer with liberty to except, {q) If he does so, the exceptions will have the effect of allowing the plea, in the same manner as a replication would do. (r) And the effect of taking excep- tions pending a demurrer to discovery, is to admit the demurrer, (s) But if the plea or demurrer is only to the relief prayed by the bill, and not to any part of the discovery, the complainant may take exceptions to the answer before the plea or demurrer is argued, {t) The rule that the complainant must except to the answer as insufB- cient, applies even where the plea or demurrer is accompanied by an answer only as to a single fact — such as a mere denial of combina- tion, (m) It is a general rule that if matters of avoidance are set up in an an- swer obscurely or imperfectly, the complainant cannot procure a more complete statement by exceptions, but must first amend his bill, {v) Exceptions to ansioers to amended hills.] Exceptions will lie to an- swers to amended bills, as well as to those put in to original bills ; but where a complainant takes no exception to the answer to the original bill, he cannot take an exception to the answer to the amended bill, upon a principle which would have applied equally to the answer to the original bill, (r) ■ And upon a reference on such new exceptions alone, the master can- (n) 2 Dan. 95, 302. Tiim v. Baker, 1 Tnr. & Euss. 253. (0) Taylor v. Bailey, 6 Law J. (N. S.) 222. (p) Cotes V. Turner, Bnnb. 133. (qj Uaruell v. Eeyney, 1 Vern. 314. 1 Smith, 280. (r) Story's Eq. PI. 535. Foley v. HiU, 3 lUy. & Craig, 475. And see Kuypers v. Beformed Dutch Church, fi Paige, 570. (s) 1 Smith, 280. Mitf. PI. 317. (t) Mitf. Eq. PI. 317. (u) Id. lb. Cotes v. Turner, Bnnb. 123. (v) Spencer v. Van Duzen, 1 Paige, 656. (r) Ovey v. Leightou, 1 Sim. & Stu. 234. Bennington Iron Co. v. Campbell, 2 Paige, 160 Id. 3G9. 382 Chap. 7.] PROCEEDTXGS TO A DECREE. X78 not inquire whether the old exceptions were fully answered, or whether any part of the original bill to which the old exceptions did not relate was answered by the first answer of the defendant, (s) If the new ex- *ceptions clearly relate to the original bill, and not to the amend- [*179] ments thereto, the defendant may move to take them from the files for irregularity; or if he has doubts on the subject, he may urge the ob- jection before the master on the reference, [t) Where the reference on such exceptions has been proceeded in, if they do not relate to the amendments, the exceptions will be permitted to remain on the files ; but the master's report allowing the new exceptions will be over- ruled, (m) But circumstances may occur which may render an occasional de- partui-e from the above rule necessary. Thus, where, after a defendant had answered, the complainant amended his bill, by stating an entirely new case, it was held that exceptions would lie, although some of the inteiTogatoi-ies embraced in them were contained in the original bill, {y) So if the defendant, in answering amendments, alleges facts similar to those contained in his first answer, and not called for by the amend- ments, but alleges them without the circumstances given in the first answer, and interrogated to by the bill, an exception will lie. {w) Leave to file such an exception must be applied for, however; as it cannot be done without, {x) Exceptions founded upon the new matters of the amendment may be taken within the same time as exceptions to a first answer, and may be filed of course, whether exceptions have been taken to the first an- swer, or not. They should be entitled " Exceptions taken by the com- plainant to the answer of the defendant 0. D., to the complainant's amended bill of complaint," or, "to the answer, &c. to the amendments to the original bill of complaint of the complainant.'' [y) Exceptions having been allowed to the answer, and the bill having been amended, and the usual order having been obtained that the de- fendant should answer the amendment and exceptions at the same time, the defendant put in a second answer. The complainant then took exceptions to the second answer, and entitled them " Exceptions to the further answer to the original bill and to the answer to the amended bill." The exceptions were held to be irregularly entitled, and were ordered to be taken off the file ; because new exceptions can- not be taken to the further answer to the original bill; but if that an- (s) 2 Paige, 160. (t) 1 Paige, IfiO. (u) Id. ib. (v) Mazzareclo v. Maitlanrl. 3 Marl. 68. bee also, Glassington v. Tliwaites, 2 K1133. 45S. (v>) Irvine v. Viana, McCle, & Young, 563. (X) III. ib. (y) Beiiiiiiiston Iron Co. v. Campbell, 2 Paige, 161. 1 Hoff. Pr. 259. 383 180 I'nncKKDixas ro a decree [15ook 1. [*180] swer be considered *iiisufficieiit, it must be referred back to the master upon the old exceptions. (2) Where exceptions to a former answer and to amendments to the bill are answered together, if neither the exceptions nor the amendments are fully answered, the complainant may file new exceptions founded on the new matter introduced into the bill by way of amendment, (a) If the new exceptions are not submitted to by the defendant within the eight days allowed for that purpose, the answers should, by an or- der, be referred upon the new exceptions, and upon such of the old exceptions as are not sufficiently answered. (5) Where the new excep- tions are submitted to, the answer must be referred upon the old exceptions which are not sufficiently answered, within ten days after the answer is put in. (c) If the bill has been amended, so that a farther answer put in by the defendant is an answer to the amendments as well as the exceptions, the complainant may file new exceptions at any time within twenty days; but the answer, as to the old exceptions, will be deemed suffi- cient, unless new exceptions are filed, or it is referred on the old excep- tions, within the first ten days, (d) Waiver of exceptions-l The reason of the rule that a complainant, if he does not except to the answer to the original bill, cannot after- wards except to the answer to an amended bill on the ground that the defendant has not answered matters which were contained in the origi- nal bill, is, that by amending his bill, the complainant has admitted the answer to it to be sufficient, (e) Upon the same ground it has been held that a complainant moving as of course to amend his bill, after he ha,s taken exceptions to the answer, will be considered as having waived his exceptions. To avoid this he must move specially for liberty to amend without prejudice to the exceptions. (/) But where the amendment of the bill extends only to the addition of an- other party, and requires no answer from the other defendants, the principle of waiver will not apply. (^) So where the complainant, after answer to the original bill, changed his name, and then amended his bill by substituting his new name for his old one, and adding an- other defendant, and afterwards took exceptions to the answer, a mo- [*181] tion to take the exceptions off the file *was refused, {h) Nor (z) Williams v. Davies, 1 Sim. & Sttt. 426. (a) 3 Paige, 160. (h) Id. ill. (0) Id. ib. (d) Hart V. Small, 4 Paige, 333. (e) 2 Dan. Pr. 304. (fj Dela Torre v. Bernales, 4. Mad. 396. Irving v. Viana, McCle. & Young, 563 (a) Ta\4or v. Wrench, 9 Ves. 315. °' Oij Miller v. Wheatley, 1 Sim. 296. 384 Chap. 7.] PROCEEDINGS TO A DECREM. \%\ will an amendment amount to a waiver of exceptions if it is confined to the prayer of the bill — -as, for an injunction, (i) But it will be it waiver of exceptions if the complainant takes the bill as confessed as to those points not responded to. {k) Effect of exceptions.^ "Where exceptions to an answer are filed, they must be disposed of before any further proceedings can take place in the cause. (J) Therefore exceptions filed to an answer will prevent the court from ordering it to be taken from the file, notwithstanding it be evasive, {m) Tlie effect of filing exceptions, upon an injunction or ne exeat will be noticed presently, {n) Form of exceptions^ Exceptions to an answer must be in writ- mg; (o) and signed by counsel, (p) Exceptions must be properly entitled ; otherwise they will be sup- pressed, or taken off the file for irregularity. Thus, where exceptions having been allowed to an answer, the complainant obtained the usual order that he might be at liberty to amend his bill, and that the de- fendant might answer the amendments and exceptions at the same time, and amended his bill; whereupon the defendant put in a second answer, to which the complainant took exceptions, and entitled them "Exceptions to the further answer to tlie original bill," the exceptions were ordered to be taken off the file; because new exceptions cannot be taken to a further answer to an original bill, [q) The exceptions should point out, specifically, the parts of the bill, or the interrogatories which are unanswered, by separate exceptions applicable to each part, (r) And it is the rule in England, that where a complainant complains that a particular interrogatory in his bill has not been answered, he must state the interrogatory, in the terms of it, and not throw upon the court the trouble of determining whether the expressions of the exceptions are to be reconciled with tlie interroga- tory, (s) Although it seems to be unnecessary, in this state, to specify the pre- cise words of the allegation, charge, or interrogatory in the bill whicli *is not fully answered, yet the substance, at least, must be [*182] stated; sothat by referring to the bill alone, in connection with the (i) Jacob V. Hall, 12 Tes. 458. (k) Giillltli V. JDepevy, 3 A. K. Marsh. 179. (I) Clark V. Tinsley's adm'r, i Uaiid. 230. (m) Ulassingtou v. Xhwaites, 2 Kiiss. Hi. (n) Voit. p. 183. (o) Beames' Ord, 78, 181. (p) Yates V. Hardy, Jacob. 223. Candler v. Partington, Mad. 122, (q) Williams v. Davies, 1 Sim. & Stii. 426. (r) 2 Uan. Pr ,HOB. (8) Hodgson V. Buttei-fleld, 2 Sim. & Stu. 236. Vol. I.--25 385 182 VROCEEVINGS TO A DECRilK. [Book I. exception, the court may see that the particular matters, as to which a further answer is sought, are stated in the bill, or that an answer is called for by the interrogatories. (.s.s) But even in England, the rule that exceptions to an answer for in- sufficiency must set forth the interrogatory in its very terms, does not apply to trifling verbal alterations, (t) Where an exception did not follow the words of the interrogatory, but the defendant had submitted to answer, and put in a further an- swer, which was referred upon the same exceptions, it was held that he came too late with his objection to the form of the exceptions, (ft) And so where a complainant, in his exceptions, went beyond tlie al- legations in the bill, and, upon a reference, the master reported the an- swer insnfBcient ; whereupon the defendant submitted to tlie reporf, and put in a further answer', upon exceptions to the second report, the defendant was held to have precluded himself from objecting to the form of the exceptions, by putting in a further answer. It was con- sidered that he ought to have excepted to the first report, (m) Exceptions for insufficiency may be allowed in part, and overi'uled as to part; iv) though it is otherwise as respects exceptions for imper- tinence, (w) If defendants answer separately, exceptions must be taken to each answer; (x) and if a joint answer is put in, and one of the defendants die, exceptions may be taken to the answer as to the survivor only, (y) It is a general rule that, after exceptions have been filed, no new ex- ception can regularly be added, (z) But upon special cause shown to the court, leave will be given to amend or add to exceptions — ^as where there is a clear mistake ; there being two causes, and the exceptions being taken from one bill instead of the other, (a) So where, by mis- take, the exceptions have been drawn from the draft of a bill instead of the engrossment, which differed from the draft materially. {V) And [*183] in *Northcote v. Northcote, (c) liberty was given to amend ex- ceptions after they had been argued. But it does not appear upon what ground such liberty was given. Within loliat time to he filed.^ Where the answer is to the whole bill, the complainant must except to it within twenty days after it is put in. If the answer is to part of the bill only, exceptions must be filed within twenty days after the plea or demurrer to the residue of (ss) Stafford v. Brown, 4 Paige, 8'J, 90. (t) Brown v. Keating, 4 Lomt. Jurist, 477 (tt; lioclgsoii V. Biitterrielil, supra. (u) (Ji-isp v. Nevil, 1 Cha. Ca 60. (V) Kast Inilia Co. v. Caiupliell, 1 Ves. 247. (w) 1 Itiiss. & Mv. aO. (X) Syilolijli V. Monliston, iUiclt. 609. (y) Loril Hurbei-t v. Pusey, 1 Dick. 255. (z) I^.irtridije v. lla\oral't, II Vos. 675. (a) Doliler v. Ba;ik ofEuglanrl, 10 Ves. 2S4. (b) Bancroft v. Wentwortli, 1(1 Ves. 285, n. (c) 1 l>i(;k. ii 386 Chap. 7.] PROCEEDINGS TO A DECREE. ]^83 the bill has been allowed or overruled. At the end of which time, if no exceptions are taken, and no order for further time has been granted, the answer will be deemed sufficient, {d) Where there is a plea or demurrer to a part of the bill, and an an- swer to the residue, the complainant may except to such answer before the argument of the plea or demurrer. But the effect of such excep- tions is to admit the validity of the plea or demurrer, (e) If the plea or demurrer, however, is only to the relief, and not to any part of the discovery, the complainant may take exceptions to the answer before the plea or demurrer is argued. (/) The complainant, if he wishes to except, must be careful to do so before filing his replication ; for by replying, he admits the answer to be sufficient. (J PROCEEDINGS TO A DECREE. \^*J fon V. Wood, {n) that if either party neglects to appear before the mas- ter and argue the exceptions, lie will not afterwards be permitted to bring them before the court by exceptions to the master's report. And it was stated by the chancellor, in the same case, to be the duty of the master, although he proceeds, ex parte, to examine the exceptions with as much care as if they were litigated before him. In England, warrants to proceed on the exceptions are successively takeii out, until the master has made up his opinion. It is in this mode that further argument may be had upon them, and that the par- ties know the decision of the master, (o) With us the master adjourns the further hearing, when necessary, {p) If he does not decide at once, aud apprise the parties of his decision, he should fix a day for them to attend, when he will be prepared, and then deliver his report to the prevailing party ; which is the complainant if a single excep- tion is allowed, {q) No objections are taken to the draft of the' master's report on ex- ceptions, and no copies of the draft will be allowed on taxation, except the engrossed copy which is prepared by the master to file, (r) In cases where a defendant has not answered, and insists upon some particular right or principle upon which he declines answering, mas- ters generally report according to tlie exceptions ; because they will not take upon themselves to judge how far the defendant ought or ought not to answer, but leave it to be determined by the court upon exceptions to their report, (s) *It is said to have been formerly the practice, in some of the [*188] masters' ofiBces, for the master to I'eport the answer insuificient gen- erally, upon the complainant establishing one exception, without en- tering into the others. (^) But in Rome y. Gudgeon, {it) Lord Eldon expressed his disapprobation of this practice, and held that on the ar- gument of the exceptions, the master's judgment ought to be given upon each. And in another case, {v) Sir Thomas Plumer, V. 0., said that his opinion was that the suitor lias a right to the master's judg- ment upon each of the exceptions. When the bill has been amended and the defendant puts in a further answer, whereupon the complainant files new exceptions as to the amendments, the complainant must go before the master upon the old exceptions, as they apply to the original bill, and upon the new excep- tions as to the new matter introduced by the amendments, {w) And (n) 1 Pai2C. 146. (o) I Tin-, 4(i-2. 477. rp; floor. Mast. 2.54 (qj iHim-.Vr.SO. 1 Tiir. 463. (r) I'l-ice V. Shaw, 2 Diuk. 7.'i2. Richards v. B.ii-lou-. 1 Paiije. :i27. Id. 146. Hopk. 9. (s) For lloui. 101). (t) Vov. Hum. 101. (u) 1 Ves. & B. 331. (vj Agnr V. Guriiey, 2 Mad. 3S9. (lo) Partrklgu v. Hayciaft, 11 Ves. 570. 391 188 PROCEEDINGS TO A DECREE. [Book I. in such a case he may have the master's judgment upon the answer to the amendments with reference to such parts of the original bill as applies to them. If the original words apply to the amendments, the master, in considering whether the answer is sufficient as to the amend- ments, must take into his consideration every thing in the amended bill that gives a construction to the amendments, {x) Where, however, the reference is upon new exceptions founded on new matter introduced into the bill by way of amendment alone, the master cannot inquire whether the old exceptions were fully answered ; or whether any part of the original bill to which the old exceptions did not relate, was answered by the first answer of the defendant, (y) If the new exceptions clearly relate to the original bill, and not to the amendments thereto, the defendant may urge the objection before the master, on the reference. (2) Where exceptions are taken in the court of exchequer to the answer to the original bill, and exceptions are also taken to the answer to the amended bill, a separate order for the argument of each set of excep- tions must be entered. And it is irregular to set them down for argu- ment under one ordei\ («) In deciding on the sufiiciency or insufficiency of an answer, it is the duty of the master to take into consideration the relevancy or materi- [*189] ality *of the statement or question referred to in the excep- tion, {h) And the true way of ascertaining this materiality, is to in- quire whether a further answer, stating or admitting the fact in the manner which would be most favorable to the complainant, would be of any benefit to him;(c) or would assist his equity, or advance his claim to the relief sought by the bill, {d) The complainant is entitled to an answer to every fact charged in the bill, the admission or proof of which is material to the relief sought, or to substantiate his pro- ceedings and make them regular, (e) Master's report.] The mastc having heard the arguments, and looked into the bill, answer, and exceptions, certifies his opinion as to the sufficiency or insufficiency of the answer, in a report to the court. And if he finds the answer insufficient, he must, in case it is a first or second answer, besides reporting upon the exceptions, fix the time to be allowed the defendant for putting in a further answer and paying the costs. And he must specify the same in his report, (f) But the neglect of the master to fix the time, in his i-eport, within fxj Id. ib., Per Lord Elilon (yj Bennington Iron Co. v. Campbell, 2 Paige, 160. (zj III. ib. CaJ Kaslwooil v. Dabi-ee, 1 Youuk & Jer. 508. (6) Uule 106. ici Davis V. Mapea, 2 Paige, lOti. (rfi Bully v. Keniick, 13 Price', 2»1. (e) Davis v. JMapes, supra. {/) liulu 55. 393 Chap. 7.] PROCEEDINGS TO A DECREE. ]89 which the defendant shall answer the exceptions, will not render the report irregular as against the defendant; as the only effect of such a neglect of the master is to compel the complainant to make a special application to the court to obtain a further answer, if the defendant does not answer voluntarily, {g) The complainant must procui-e and file the master's report within twenty days from the date of the order or reference, of the exceptions will be considered as abandoned; unless the master shall, within the twenty days, certify that the complainant has not been guilty of any unreasonable delay, and that a further time, to be specified in tlae cer- tificate, is necessary. In such case tlie report must be obtained within that further time, or the exceptions will be considered as abandoned, and the answer will be deemed sufficient, (/t) The master is entitled, under this rule, to grant only one certificate extending the time for obtaining his report, {i) But where tlie time for making the report has passed, and it appears by affidavit that the omission to procure the master's certificate that further time was necessary to enable him to make his report, arose from inadvertence, the court *extended tlie time for another fortnight, on the [*190J complainant paying the costs of the application, (/i;) In an injunc- tion case, however, the court will not enlarge the time for obtaining the master's report, except under special circumstances — such as the illness of the master, &c. {I) The master's report must be delivered to the complainant, who must forthwith file it in the register's, assistant register's or clerk's office, as the case may require. And if the complainant does not except to it within eight days thereafter, it will become absolute as against him. (?n) And if none of tlie exceptions are submitted to, or allowed by the mas- ter, the answer will be deemed sufficient, after the expiration of that time, {n) No order to confirm the i-eport is necessary. Notice of its being filed must be given to the defendant ; who may file exceptions to it within eight days after such notice; and if he does not except within that time, the report becomes absolute against him also, (o) No proceedings can be taken upon the master's report untir it is filed. -Therefore, where a complainant, after the master had made his report on exceptions, but before it was filed, obtained an order for an (g) Corning v. Cooper, 7 Paige, 587. (A) Rnle 54. (i) Watkiris v. lieiiinouil, i Loiid. Jurist, 152. (A) Biirrell v. NicholsoD, 6 Sim. 212. (l) Davenport V. VVliit:iiore, S Sim. 251. im) Kiilo56. (») Idem. (o) Itnle 5S. 393 190 PROCEEDINGS TO A DECBEE. [Book I injunction, the injunction was held to be irregular, {p) And so if the complainant, before the master's report allowing the exceptions has been filed, obtains an order for lea7e to amend, and that the defendant may answer the amendments and exceptions at the same time, the or- der will be discharged, [q) Exceptions to master's report.] Either party may except to the mas- ter's report. Exceptions by the complainant must be put in within eight days after the report is filed, and exceptions by the defendant within eight days after he receives notice that it is filed, (r) Where a party has neglected to file exceptions to the report within the time prescribed by the rule of court, he will not afterwards be per- mitted to file them, unless he shows, by affidavit, that he was prevented from filing them by accident, mistake, or surprise, {s) If the master has reported the answer insufficient, the defendant should except to the report before he puts in a farther answer; for it has been held that where a first answer is, upon exceptions, reported [*191] insufficient, *the defendant, if he submits to put in a further answer without excepting to the report, admits that he ought to an- swer all the matter excepted to ; and that he must therefore answer fully to all the points comprised in the exceptions, and cannot after- wards, by excepting to the report made upon a reference of his second answer, raise the question whether he ought to be compelled to answer the exceptions or not. And upon this ground, where exceptions were taken which extended to matters not charged in the bill, and upoi. reference the master reported the answer insufficient ; whereupon th« defendants, instead of excepting to the master's report, put in a fur- ther answer which fally answered the charges in the bill, but did not extend to those parts of the exceptions which were not ■ founded on ■ the bill ; and the master, upon a second reference, reported the auswer to be still insufficient, the court, upon exceptions to the master's re- port, ruled that, inasmuch as the defendants did not except to the first report, but had since answered, they had admitted that they ought to answer all the matter of the exceptions, {t) Where the master has reported the answer to be sufficient, the excep- tions to the report ought to be filed before the time fixed by the rules of the court for the complainant to file his replication has arrived Otherwise the defendant may move to dismiss the bill for want of prosecution. In injunction cases, also, the complainant, if he wishes (p) Wynne v. Jackson, 2 Sim. & Stii. 226. Iq) Rushtoa V. Troughton, 2 Sim. 33. {r) Rule 6B. (s) Arlm'x of Foote v. Van Ranst, 1 Hill's Oil. Rep. 185. (<) Crispe v. Nevil, 1 CUa. Ca. 60. 394 Chap. 7.] PJiOCEEDHTGS TO A DECREE. 291 to revive an injuncbion which has been dissolved, upon tlie master's report of tire sufficiency of tlie answer, sliould lose no time in filing his exceptions to the report; otherwise he may lose the benefit he would derive from Iris injunction, {ii) So, when a complajuant wishes to amend his bill, he must, if he intends to except to the report, do so, and get his exceptions disposed of before he obtains the order to amend ; as an order to amend will be considered as a waiver of excep- tions for insufficiency, (v) Form of exceptions to report.^ Exceptions to a master's report on exceptions either for scandal and impertinence or for insufficiency, must be drawn or perused, and settled and signed by counsel. Exceptions to reports of masters are in the nature of special demur- rers, and the party objecting must point out the error; otherwise the part not excepted to will be taken as admitted, (w) Where several exceptions to an answer are allowed by the , maste^, and the defendant takes one genei'al exception to the report, that ex- *ception will be overruled if any of the exceptions to the an- [*193] swer are well taken, {x) When the master has reported an answer not scandalous or imperti- nent, the complainant, in his exceptions to the report, must show in what line or page, and how far', the answer is scandalous or imperti- nent, [y) And so where an answer is reported sufficient, it is said that the complainant in his exceptions to the report should show wherein it is insufficient, {z) ; No exceptions can be taken to a master's report, which are not founded upon objections distinctly taken before the master, {a) Filing exceptions to report.'] The exceptions being drawn, engrossed, and signed by counsel, must be filed in the proper office. In England a deposit is necessary to be made, on filing exceptions, as a stake or recompense to the other party, if, upon argument, the exceptions should be disallowed. But this is not necessary here. (5) Hearing of exceptions to report.] The argument of exceptions to a master's report is to be heard as a special motion ; (c) of which the usual notice must be given to the opposite party. They may be heard either on a regular motion day, or any day in term. (M) 2 Dan. Cti. Pr. 330. (V) r)ela Torre v. Bernales, 4 Mad. 39G. (w) Wilkes V. Engera. 6 John. 5HB. (Ki Candler v. Pottit, 1 Paige. 427. Franklin v. Hnnt, 4 id. 3S3. Noble v. Wilson, 1 id. 164. Green v. Weaver. 1 Sim. 40t. Cotliam v. We.st, 1 Beav. 380. (y) Craven v. Wright, 2 Peer Wins. ISl. But see 2 Atk. 182, contra, (z) Id ib. (a) Byington v. Wood, 1 Paige. 145. (6) Stafford v. Rogers, Hopk. 98. (e) Kiile62. 395 192 PROCEEDINGS TO A DECREE. [Book I. Either pai"ty may notice the same for hearing. The party excepting to the report mast farnish the necessary papers for the court; and if he neglects to do so, the report will be confirmed, [d) Those necessary papei's are the bill, answer, exceptions to answer, master's report, and exceptions to report. If both parties have excepted, each must furnish copies of his own exceptions, and the party obtaining the reference must furnish such other papers as may be necessary, (e) If either party neglects to appear before the master, on a reference of exceptions to the answer, and argue them, he will not be permitted to bring them before the court by exceptions to the master's report. (/) But on suflBcient cause shown, and payment of costs, it seems leave may be given to refer back to the master the exceptions to the an- swer; in order that the party may have an opportunity to be heard thereon, [g) Upon the hearing of exceptions to the report, the party excepting [*193] *must confine himself to the exceptions, and will not be al- lowed to go into a new case. The court acting merely in revision of the report, cannot entertala an objection raised on an extrinsic ground. (A) And the 106th rule also provides that on exceptions to the master's report, the parties shall be confiaed to the objections taken before the master. The manner in which exceptions to the report are argued is as fol- lows: The junior counsel for the exceptions (if there are more than one counsel), opens the exceptions to the court, and the leading coun- sel on the same side argues them. The cousel against the exceptions then state their case to sustain the report ; and the matter having been thoroughly discussed, the court gives judgment for or against the re- port, by allowing or disallowing the exceptions, [i) Costs 071 exceptions to report.] The costs of the hearing on excep- tions to a master's report upon exceptions are in the discretion of the court. But neither party can have costs as against the other, unless he succeeds as to the ma,jor part of the exceptions to the report. And where the party sucoeediug as to ths m ijor part does not succeed as to all the exceptions, his costs to ba allovveJ against the adverse party can- not be taxed at more tlian ten dollars, (k) Upon the argument of excaptions to a report on exceptions to an answer, the solicitor is only entitb.l to tha usual fee which is allowed ((i) Hem. (e) Idem. I D livinprton ir. Wnml. 1 P,ii(?e, 145. (.91 M. ib, i'li) Kil'ioo V. Suoyil. 2 .Moll. 239. (i) Hinde, 276. [k) Rule (ii. 396 Chap. 7.] PROCEEDINGS TO A DECREE. 193 for attendance upon a special motion, (l) Each party is entitled to the costs of the hearing, as to the exceptions decided in his favor ; whicli costs are to be set off against each other. "Where the costs on each side would be nearly equal, the usual practice is to give costs to neither party. {U) Wlieu the court, upon exceptions, overrules the master's report, the party succeeding shall not have the costs, but they must abide the event of the suit. (»;) Proceedings for a letter ansiver.] If all the exceptions to the an- swer are submitted to by the defendant, or a part are submitted to and the rest abandoned, or on a reference to a master are disallowed, the complainant may have an order of course, that the defendant put in a further answer within twenty days after notice of the order, and pay the costs of the exceptions, or that an attachment issue, or that the bill be taken as confessed, at the election of the complainant, (w) (4) *Where the master overrules a part of the exceptions, and the [*194] complainant excepts to the report, he cannot enter a common order that the defendant answer the exceptions submitted to by him, or which have been allowed by the master, until his exceptions to the report are finally disposed of by an order of the court thereon, (o) With respect to the time when the order for a further answer may be entered, under the 58th rule, it has been decided by the chancellor that it cannot be entered until the mastei-'s report has become absolute against the defendant; i. e. until the expiration of eight days after the filing of the report; during which time the defendant has a right to except to it. {p) The 59th rule provides that if, on a reference of exceptions, or the reference of a second answer upon the old exceptions, the answer is found insufficient, and the master's report has become absolute against the defendant, (by the expiration of eight days from the time it was filed,) the complainant may have a similar order of course to put in a (Zl Richards v. Barlow, 1 Paige, 333. {II) Id. il). (m) Anon., 3 AOi. 235. (m) Rule 58. (o) Tim New-York Fire Ins. Co. v, L.'iwrence, 6 Paige, 611. Ip) Utica Ins. Co. T. Lynch, Aiig't, 1831. (4) The 64th Equity Eule of the United States courts directs that if, at the hear- ing, the exceptions shall be allowed, the defendant shall be bound to put in a full and complete answer thereto on the next suooeediug rule day ; otherwise the plaintitf (.hall, as of course, be entitled to take the bill, so far as the matter of such exceptions is concerned, as confessed ; or, at his election, he may have a writ of attachment to compel the defendant to make a better answer to the matter of the exceptions ; and the defendant, -when he is in custody on such writ, shall not be discharged therefrom but by an order of the court, or of a judge thereof, upon his patting in such answer, and complying with such other terms as the court or judge may direct. ^j the 65th Equity Kule of those courts, it is provided that if, upon argument, the 397 194 PROCEEDINGS TO A DECREE. [Book I. further answer and pay the costs, within the time specified in the mas- ter's report. (5) In the cases specified in the 58th and 59th rules, the defendant is entitled to a copy of the taxed bill of costs at least ten days before the ■ time for putting in the further answer expires, or he may put in such answer witliout paying the costs. But tlie complainant may afterwards proceed by attachment to compel payment thereof, {q) If the defendant does not put in a further answer, and pay the costs within the time prescribed, or within such further time as may be allowed him, the complainant, on filing an affidavit showing such de- fault, may have an order of course to take the bill as confessed, or for an attachment, according to the original order. (?•) If an order for an attachment is entered, the proceedings thereon will be similar to those employed to compel an original answer, or the ap- pearance of the party ; which have been already stated, [s) The endorsement of the attachment, the recitals, &c., should state the writ to be issued for not putting in a further answer. If the complainant has amended his bill, so as to require an answer to the amendments, as well as to the exceptions, the defendant has the [*195] same *time to answer the amendments and exceptions together, that he originally had to answer the bill, {t) If, after an answer has been reported insufficient, and the time for putting in a further answer has been fixed by the master, the defend- ant finds liimself unable to put in his answer within that time, he may get the time extended, on application to the court. Such appli- cation, however, should be made before the time fixed in the repoi't has expired ; otherwise the defendant will be in contempt under the (?) Rule 60. (r) Rule 61. (s) Ante, p. 65, 87. «) 14iile 60. plaintiff's exceptions to the answer are overruled, or the answer is adjudged insuffi- cient, the premling party i) 3. Exceptions for Scandal and Impertinence. The nature of scandal and impertinence, and the rules for distinguish- ing them, have been already stated in the chapter relative to bills of complaint, and in the first section of the 6th chapter, (g) Scandal and impertinence in answers is of the same nature, and subject to the same rules, and a similar method of practice, as when it is found in bills of complaint. In addition, however, to what has been already said respect- ing it, may be further remarked in this place, that facts set forth in the answer whicii are not material to the decision, are impertinent; and if reproa.chful, are scandalous, (r) Chancellor Kent remarks, that the best rule to ascertain whether the matter in an answer be impertinent, is to see whether the subject of the allegation could be put in isgue,^ or be given in evidence between the parties, (s) (6) (n) Id. ib. (0) Rule 64. (p) Rule 64. (q) Ante. p. 41, 101. (r) Woods V. Morrell, 1 John. Ch. Eep. 103. (s) Id. iTj. (6) Rule 27 of the Equity Rules of the United States courts^ directs that no order (hall be made by any judge for referring any bill, answer or pleading, &o., for fcan- ilal or impertinence, unless exceptions are ta.ken in writing, and signed by counsel, Sescribing the particular passages wliich are deemed scandalous or impertinent ; nor unless the exceptions shall be filed on or before the next rule day after the process 405 202 PROCEEDINGS TO A DECREE. [Book I. If the matter of an answer is relevant, or can have any influence in the decision of the suit, either as to the subject matter of the contro- versy, the particular relief to be given, or as to the costs, it is not imper- tinent, {t) Or, in other words, whatever is material is not impertinent, as a general rule, (m) Thus, a statement introduced into an answer to show the temper with which a bill is filed, and the oppressive course pursued by the complainant, is not impertinent; as it may have an effect upon the costs, (w) If the complainant puts impertinent ques- tions, however, in the interrogating part of his bill, he must take the answers to them, though they be impertinent. (?*) Therefore, if a bill against executors calls specifically and particularly for accounts in all their varioits details, a very voltiminotis schedtile containing a copy from the books of account, specifying each item of debt and credit, will not be impertinent; though it seems it would have been, had the bill not called for it. (a;) And where a complainant avers the alienism of parties as a ground for their not being entitled under a will, it is not impertinent for a defendant to allege in his answer that the complain- ant, who also claims rights under the same will, is an alien likewise, {y) [*303] *But statements in an answer, which are neither called for by the bill, nor material to the defence, with reference to the order or decree which may be made on the bill, are impertinent, (z) So are state- ments in an answer to a bill of revivor, which merely show irregularity and misconduct in the former proceedings in the suit. («) And copies of receipts taken by the defendant for monies paid, and charged in ac- count, and making an immense schedule to an answer, are imperti- nent. (5) So if a defendant to a bill of revivor puts new matter on the record, which might, if stated in the answer to the original bill, have produced a different decree, it will be impertinent and may be ex- pttnged. (c) And if the defendant iia his answer sets up a distinct mat- ter in avoidance, which is not called for by the bill, the same, if irrele- van t or immaterial, may be excepted to for impertinence, or the com- plainant may have the benefit of the objection upon the hearing, [d) (t) Van Rensselaer v. Brice, 4 Paige, 174. 1 Edw. 350. (u) liiilly V. Williams, UcCle. & roung, 334. (V) Desplaces v. Goris, I Erlw. .SoO. (w) VVooils V. Monell, IJolin. Ch. Rep. 103. (X) Scncldorv. Bogert, 1 Eihv. 372. (y) JiiUj- V. Carter. 2 Eilw. 209. (z) Wagstaff V. Bryan, 1 Riiss. & My. 28. (a) Id ib. (•iJSeudiler v. Bogert, 1 Kdw. 372. (c) Nanny v. Tcjtty. U I'riee, 17. (d) Spencer v. Van Dtizen, 1 l*uige, 555. on tliu bill shall be retnruable, or after the answer or pleading is filed. And suuh order, -n-hen obtained, shall bo considered as abaudoned, unless the party obtaining the order shall, without any unneoessury delay, procare a master to exammo and report upon the same on or before the next succeeding rule day, or the master shall certily that further time is necessary lor him to complete the examination 406 Chap. 7.] PROCEEDINGS TO A DECREE. 203 An answer may be referred for scandal, at the instance of a co-defend- ant ; but not for impertinence, (e) By the English practice, a reference of the answer for impertinence is good cause to be shown against a motion to dissolve an injunction. (/) But by the practice here, where the whole equity of the bill is denied, it is no answer to an application to dissolve an injunction, that the defendant has also incorporated into his answer other matters which are scandalous, or otherwise irrelevant, {g) Exceptions to an answer for scandal or impertinence must be tiled within twenty days after service of the answer, (h) They are to be taken in the same manner as exceptions for insufftciency, and may be submitted to in like manner, and within the same time. And if not submitted to, they must be referred in the same manner, and the mas- tei''s report procui-ed within the same time, or they will be considered as abandoned, and the answer will be thenceforth deemed sufficient, (i) An exception for impertinence must be supported in toto ; and if it includes any part of the answer which is relevant and proper, the excep- tion must fail altogether, {h) Where exceptions for impertinence, if allowed, would mutilate the *ans\ver unnecessarily, by breaking up sentences and clauses [*204] which ought to stand or fall together, such exceptions should be dis- allowed. {I) If the whole of a sentence or clause in an answer is impertinent, and depends upon the same principle, the complainant cannot except to a part of the sentence only, where the allowance of such exception will wholly change the meaning of what remains, or make it unintelligi- ble, {m) Exceptions should point out the exceptionable matter with sufficient certainty to enable the officers of the court to strike out such excep- tionable matter, if the exceptions are allowed, [n) The complainant is not precluded from excepting to the further an- swer of a defendant, for impertinence, although it purports to be an answer to the old exceptions for insufficiency only; but in that case his exceptions for impertinence must be tiled within the ten days allowed for referring the further answer upon the old exceptions, (o) (e) Fell V. Chiisti Coll. ,2 Bro. C. C. 279, 2 Dan. 296. (f) Kisher v. Bailey, 1' Ves 19. TTuut v. Thomas, 2 Anst. 591. (g) Livinffston v. Livingston, 4 Paige, 111. fft^Kiile 50. , (i) I{iites5:!, 54. (1:) Van Hensselaerv. Brieve 4PaiKe, 174. Wagstaflv. Biyan, 1 Russ. & My. 30. 1 Edw. 350. (I) Piankliu v. Keeler. 4 Paige. Mi. (m) 111. ib. (n) Whitmarsh v. Campbell. 1 Paige, 6+5. (o) Halt V. Small, 4 Paige, 333 407 204 PROCEEDINGS TO A DECREE.. [Book I. If exceptions are taken for both insufficiency and impertinence, they must be taken and referred at the same time, {p) Therefore, where the complainant, after. he had referred the further answer of the defendant for insufficiency, on the old exceptions, and after he had taken out and served a warrant to proceed on such reference, put in new exceptions •to the further answer, for impertinence, and obtained another orderof reference of those exceptions, it was held that the exceptions for imper- tinence were irregular; and they were ordered to be taken off the files of the court, {q) If on a reference of exceptions to an answer for scandal or draperti;- nence, the master, reports -that the answer is scandalous or impertinent, the complainant, on iiling proof that the report has become absolute against the defendant, may have an order of course that the proper offi- cers of the court expunge the scandalous or impertinent matter, and that the defendant pay the costs witliin twenty days after service of a copy of such order and of the taxed bill, or that an attachment issue, (r) Wlien the defendant submits to the exceptions, the same order may be entered on filing the notice of the submission, (s) If the master disallows an exception for scandal or impertinence, his report is final, and cannot be excepted to in that respect. But the complainant may, upon the hearing of the cause, or upon the taxation [*20o] *of the general costs in the suit, insist that the matter excepted to was in fact impertinent, {t) Costs on exceptions to answer^ It is provided by the 63d rule, that on exceptions either for insufficiency or for scandal. and impertinence, the complainant shall be entitled to the costs of the exceptions which are submitted to, and those which are finally allowed after a reference to a master ; but that neither party shall be entitled to costs upon the reference of exceptions, unless he finally succeeds as to -.all the exceptions Avhich are referred. The costs on exceptions are not to be taxed until all the exceptions are submitted to, abandoned, allowed, or finally dis- posed of; and then the whole costs to which the exceptant is entitled, are to be included in one bill, and the adverse party may offset any costs to which he is entitled. Copies of pleadings for the master are not allowed on.a reference of exceptions, unless in cases of difficulty where copies are required by him, and are actually made for that purpose, {u) Only one solicitor and counsel fee can be charged on a reference ; and (p) Woorls V. Morrell, 1 John. Ch. Rep. 103. (q) H.irtv. 5ma.\\, supra. (r) Rule 67. (s) Iilem. (t) Rule 67. (uj Richards r. Barlow, 1 Paige, S2a 408 Cliap. 7.] PROCEEDINGS TO A DECREE. 205 only one fee can be allowed to the master ; except by the special order of the court, (v) It has before been stated that the defendant is liable to pay the costs of the exceptions Avliich he submits to answer, {w) If an answer contains scandalous or impertinent matter, the counsel whose name is subscribed to it is personally liable to the complainant for the costs on the exceptions for impertinence, (a;) When impertinent matter in an answer which should have been emr braced in one exception, is made the foundation of sereral exceptions to detached parts thereof, the coi^rt may refuse to give. the costs of the i-eference to the complainant, although the major part of his exceptions to the answer are finally allowed, {y) • ■ Costs of excejitions to answer l\ If the defendant submits to the exeeptionSj the complainant has his costs; and if they ai-e referred, he has the costs of the exceptions allowed, and the defendant his costs of the exceptions disallowed ; and the balance struck is to be paid, (z) To entitle the exceptant to the costs of the reference, he must finally succeed in obtaining the allowance of a major part, in number, of the *exceptions referred. And each exception constituting a part [*206] of such majority must be wholly sustained, {a) Where part of the exceptions to an answer are allowed, and the rest disallowed, the costs to which the respective parties are entitled may be ofi'set, or a proportionate share of the costs only may be allowed to the party who succeeds as to a majority of the exceptions. (5) SECTION" 11. AMESDIIfrG BILL OF COMPLAINT. Although, as a general rule, the bill may be amended at any time before decree^, yet as it is most usually amended between the times of putting in the answer and of filing the replication, the present seems the most fitting place for treating of amendments. And in doing so, convenience will be promoted by considering the whole subject of amend- ing bills, at whatever stage of the cause the amendment may be made. In what cases the bill may be amended.'] If a bill does not contain such material facts, or make all such persons, parties, as are necessary (V) Id. ib. (w) See Rule 30 (X) Doe V. Green, SPiiige, 347. (y) FiankUn v. Keelei-, 4 Paige, n82. (li) Methodist EplscopalCiinrch v. Jaqiies, 1 John. Ch. Ref>. 65.-' (a) JJuloid V. Miller, 4 Paigej 473. (b) J)orton v. Woods, 5 Paigo, 200. 409 206 PROCEEDINGS TO A DECREE. [Boolv 1. to enable the court to do complete justice, tbe complainant may alter it, by inserting additional matter subsisting at the time of filing the bill, of which he was not then apprised, or which he thought not neces- sary to be stated. And he may add such persons as shall be deemed necessai'y parties. Or in case the bill is found to contain matter not relevant, or no longer necessary to complainant's case, or the names of parties who may be dispensed with, the bill may be amended by strik- ing out such matter or parties. The original bill thus added to, or altered, is termed an amended Mil. From what has just been stated, it will be seen that amendments to a bill are of two sorts — those which relate to parties, and those which affect the substance of the case. And a;mendments relating to parties are either by the addition or omission of them. There is also another class of amendments relating to parties ; to wit, the changing of their situation by striking out the name of a co-complainant and making him a defendant. Amendments being regarded with reference only to the furtherance [*307] of *justice, they are, as- a general rule, in the discretion of the court, especially in matters of mere form, (c) They are, therefore, always allowed with great liberality, until the proofs are closed ; except where the bill is sworn to ; (d) in which case they are allowed with gi-eat caution, (e) (7) (c) Smith V. BabGock, 3 Snmnor, 410. Garliok y. Strong, 3 Paiste, 440. McElwain v. Willis, id, SOS. (d) Cock V. Evans, 9 Yerg. 287. (e) Verplanck v. The Mercantile Ins. Co. 1 Edw. 46. Swift v. Eckford, 6 Paige, 22. (7) The ooart may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or pi'oceediug. by adding or striking out the name of any party, or by correcting a mistake in the name of a party ; or a mi.stake in any other respect ; or by inserting other allegations material to the case ; or, when the amendment does not change, substantially, the claim or defence, by conforming the pleading or proceeding to the facts proved. (Code, $ 173.) No variance between the allegation in a pleading and the proof shall be deemed material, unless it have actually misled the adverse party, to his prejudice, in main- taining his action or defence upon the merits. Whenever it shall be alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and in what respect he has been misled ; and thereupim the court may tu-der the pleading to be amended upon such terms as shall be just. (Code, % 169.) "Where the variance is not material, as provided in section 169, the court may direct the fact to be found aoccu'ding to the evidence, or may order an immediate amendment, with- out costs. (Code, § 170.) The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights ; but where a complete determination of the C(mtroversy cannot be had without the pres- ence of other parties, the court must cause them to be brought in. And when, in an action for the recovery of real or personal property, a person not a pai-ty to the ac- tion, but having an interest in the subject thereof, makes application to the court to be made a party, it may order him to be brought in by the proper amendment. (Code, 5 Vti.) Section 173 of the Code does not authorize the court to amend the pleadings so as to conform to the facts proved, establishing the right of the plain tifl' to recover, if 410 Chap. 7.] PROCEEDINGS TO A DECREE. 207 Facts which have occarred suice the filing of the original bill ought not to be introduced by amendment ; because, as the amendments are held to constitute part of the same record as the original bill, ( f) which can only relate to facts which had occurred previous to the tin^e when it was preferred, the introduction of matters of a posterior date would render the record incongruous. Matter, therefore, which has occurred (f) Verc V. Glvnii, 2 Dick. 441. Jouliug v. Stuart, 4 Ves. 619. Ogdeii v. Gibbons, Halst. Dig. 172. the amendment would substantially change the claim upon vhioh the action is founded. (Nosser v. Corwiii, 36 Hciw. 540.) But the court, at the trial, may remedy by amendment a variance between the case made by the proof and the complaint, wliere all the facts essential to the rigbts of the parties are put in issue by the answer and reply. (Hall v. Gould, 13 tf. Y. I:i7.) And where, in au action to recover spe- cific per.soual property, the jury found for the plaintift' as to the one part, and for the defendant as to the other, designating the articles generically, without specifying them in detail, it was hold that it was competent for the court, at the trial, to render the verdict certain by directing au ameudineut of the complaint, so as to insert therein a list of each class of articles intended by the generic designation of the ver- dict. (Jimerson v. Bleakley, 5 Ab., H". S. 350.) The court, however, cannot allow au amendment of the complaint on the trial, the effect of which would be to introduce a new cause of action, instead of the one laid in the complaint — a cause of action barred by the statute of limitations; or the effect of which would be to enable the plaintiff's to recover one-half of a claim whicb they have purchased since the commencement of the action, and which they could not have recovered as the action was originally commenced ( Van Syokels v. Perry, 3 Rob. 621.) The right of amendment is limited to the subject matter for which the action was originally brought. (Ibid.) In Andrews v. Bond, (16 Barb. 633,) where the action was founded on tort, and the defendant had a verdict, the plaintiti' asked leave to amend his complaint by changing the action to one on contract. Leave was refused. (See Walter v. Bennett, 16 JS". Y. 250; Mayor, 4-0. of New York v. Parker Vein Steamship Co. 21 How. Pr. 289. Aud see, to the coiUrary, Allabeen v. Wake- man, 10 Ab. 162.) "When all the facts stated in a complaint, assuming them all to be true, will not entitle the plaintiff' to any relief, a fact essential to the cause, ol action, and occurring alter the service of the suuimous and complaint on one of the defendants, cannot be incorporated into the ooniplaiut by amendment, nor be made a part of the ease by a supplemental complaint. (AlcCuUough v. Colby, 4 Bosw. 6U3.) A refusal to allow the complaint to be amended on the trial, or a refusal to con- form the pleadings to the proof, is entirely within the discretion of the court, and is not the proper subject of an exception ; {Binnard v. Spring, 42 Barb. 470 ; Hunt v. Hudson River Fire Ins. Co. 2 Duer, 482 ;) nor reviewable upon appeal ; {Eichtmeyer v. liemsen, 38 N. T. 206; S. 0. 6 Trans. App. 203; Meyer v. Megel, 7 Kob. 122; Hendricks \. Decker, 35 Barb, 298; iiof/t v. iSc7tto6S, 6 id. 308;) nor are the terms upon which an amendment is granted subject to review upon eiceptions. ( Vibbard v. Roderick, 51 Barb. 616.) But an order made by a, referee, on the trial of au ac- tion before him, allowing an amendment, whioli order he has no authority to make, is the subject of exception, aud may be reviewed ou appeal i'rom the judgment en- tered on the referee's report. Besides this, the special term possesses the power to set aside any order made hy a referee in the progress of a Cciuse which he had not authority to make. (Ford v. Ford, 53 Barb. 525; S. C. 35 How. 321.) See further, as to the oases in which an order made at a special term, refu.-'iug to allow au amend- ment of the complaint after trial, is not appealable. (Sultus v. Genin, 19 How. Pr. 233.) An amendment supplying an averment of the negotiation of a bill of exchange to the plaintiff', is properiy allowed; but if it were not, the allowance of such an amend- ment is a matter of discretion, and not reviewable on appeal. ( Van Duzer v. Howe, 21 a. Y. 531.) Yet if some substantial right has been invaded by an amendment, an appeal to the general term will be allowed. (Union Bank v. Mott, 11 Ab. 42; S. C. 19 How. Pr. 267. See Johnson v. Mcintosh, 31 Barb. 267.) Au order granting leave to amend by adding another cause of action, with(jut permitting the defendant to answer anew, is appealable. (Allabeen v. Wakeman, 10 Ab. liJ2.) So where the court refused to 207 rROCEEDiyan TO ADECREE. [Book I. since the original bill was filed, should be brought before the court by supplemental bill, and not by amendment. {^) Nor can a bill be amended by inserting therein facts known to the complainant at the time of filing the bill ; unless some excuse is 'given for the omission, (li) And amendments can only be granted when the bill is defective in parties, or in the prayer for relief, or 'in the omission or mistake of a fact or circumstance connected with the substance, but not forming the substance itself nor repugnant thereto, (c) (q) Ai-olibp. of rork v. Stapleton, 2 Atk. 136 StafTord v.Howlett, 1 Paige, 200.^ (h) Wliitiiiarali v. Campbell. 2 Paige, 67. (c) Veiplanukv. The Murcaiitile Ins. Go. 1 Eihv. 46. Lj'on v. Talmadge, IJohn. Ch. ISl. Eodgers v. liodgers, 1 Paige, 4'il. grant an amendment on the ground that it did not possess the power. (RusseU v. Conn, 20 If. T. 81; McElioain y. Coi-ninr/, 12 Ab. 1(3 ; Sheldon y. Adams, 41 Barb. 54 : S. C. 27 How. 179; 18 Ab. 405.) Where a. party has leave granted him, at spe- cial term, to amend, and the order is reversed at general term; no appeal lies to the court of appeals. (New York Ice Co. v. Northwestern Ins. Co. 28 ll". T. 357 ; S. C. 12 Ab. 414 ; 21 How. Pr. 296 ; Bodges v. Tennessee Marine 4' Fi^e Ins. Co. 8 N". T. 416. See also Lounsbury v: Purdtj, 18 jST. T. 515.) Leave to amend, so as to change the venue, may be granted in the .disoreti(m of the Court. {Paine v. Parker, 13 John. 329; Fish v. Lyon, I How. Pn 234.) So the plaiutiff may, after the defendant has answered, amend'his complaint, of course, and without costs, by atatiug the place of trial to be in a county ilifterent from that speci- fied in the original complaint. (Stryker v. Neio York Exchange Bank, 42 Barb. 511 : S. C. 28 How. 20.) There is now no restriction upon the power of the c(rart to allow a party, at any time before trial, to ameud his pleadings, so as to present his views of the questions to be litigated upon such terms as may be just, even though the eflect of the amend- ment will be to cbange entirely the whole cause of action, orthe grounds of defence. It is only when a party seeks to amend his pleadings after trial that the court is prohibited from allowing an amendment which would substantially change the cause of action or defence. (Troy 4- Boston II. B. Co. v. Tihhits, 11 How. Pr. 168, 170. See Woodruff v. Dickie, 5 Kob. 619 ; S. C. 31 How. 164 ; Beardsley v. Stover, 7 How. Pr. 294 ; Dagucrre v. Orser, 3 Ab. 86; Harrington v. Slade; 22 Bai-b. 164.) In Bai ley V. Johnson, (1 Daly, 61,) it was held that a change in the form of the action would not be allowed on the trial. A complaint cannot be amended when the effect will be to change the action intd one for equitable relief, without leave of the court. (G-ray v. Brown, 15 How. Pr. 555.) "Where a mistake has occurred in the names of the plaintiffs, it may 'be corrected, either on the trial or afterwards, by amendment. It is not a ground t>f non-suit. (Barnes v. Perine, 9 Barb. 20S ; Burnup v. Halloran, 1 Code R. 51 ; Bayik of Havana V. Magee, 20 N. Y. 355.) This may be dcme even after judgmehti (Ackley v. Tar- hox, 31 N, T. .564.) In Piatt v. Hudson River R.R. Co, (21 IST. T. 305,) the differ- ence between a complahit frametlas an- action for dauiages- on. a refusal- to- fulfil a contract, and one for a refusal to execute atrinstrument which embodied the contract -in questiim, wa-s held formal, and curable by amendment! ' If the complaint, in an actitm to recover the- possession <)f personal propertr,i states facts sufficient to show that, in l-.iw, the defendant's holdiug'of the" property is un- lawful, that is -sufHcieut, e.-ipecially after judgment. The •omissioiv to allege in the complaint a demand of the pv.iperty before suit brought, is cured by proof of tho fact, by the report of the referee finding the fact of .a-demand. aud by-thia- jhdgmeut. (Fullerton v. JUalton, t>S Bai-b. 236.) When the parties go down to- trial, aud acauso of action is proved, though the complaint may be 'defective, tos-ted uierelyas a plead- ing upon demurrer, it is the duty ot a referee" or a court, to conform the- pleading to the facts proved, in fui-tlienuice of justice; and alter judgment, if it be entmed ac- cording to a case duly proved, it is tlie duty of the court to amend, or to Tegard' the pleading as duly auieuued." (Ibid.) When the supreme court hai ac'[uired juris-diftioii, it fluay amend any pTocess 01 proceediug'to retain it, and L-iu-iy out and eilectualc its objecty in furtherance of jus- 412 Chap. 7.J PROCEEDIXGS TO A DECREE. ^07 In some cases, hawever, tlie court will suffer matters which have occurred%ince the filing of the original bill to be introduced by amend- ment. Thus where the complainant has an inchoate right at the time of preparing his original bill, and which merely requires some formal act to render his title perfect; and such formal act is not completed until afterwards, the introduction of that fact by amendment will be permitted. The case of an executor filing a bill before probate, and afterwards obtaining probate, is an instance of this kind, {d) Where, also, the defendant in his answer states facts which have taken place since the bill was filed, the, court will permit such facts to be incor- porated into the bill by amendment, (e) But an amendment of the bill (d) 1 Dan. 511. Humphreys V- Hmnphreya, 3 P. Wms. 348. Bi'adford v. Feldor, 2 McCoid'a Ch. Uen. 170. Butlei- v. Biuler, 4 Litt. 201. (e) liniglit V. Matthews, 1 Mad. SGU. tice. But it cannot make a void proceeding valid by an amendment in the same proceeding or matter. (Bangs v. Mcliitosli, 'I'd Barb. 591.) It is a fandamentaj rule, that where there is an absence of jm'isdiction the defect cannot be supplied by amendment or supplemental proceedings, so as to make the void proceedings valid from the beginning. (Ibid.) A lessor eaunot recover rent, upon a complaint for use and occupation, where it appears from the evidence that there was a lea.>il,) an amendment was allowed, on satisfactory cauAc for the mistake being shown, increas- ing the amount claimed in an action- on, contract,. for money only, after a reply re- peating the original claim, though both pleadings were verified. In Pratt y. Hudson River R. R. Co. (21 S. Y. 305,) the ditt'ereuce between a complaint framed as an action for damages on a refusal to fulfil a contract, and one for a refusal to execute an instrunieut which, it was agreed, embodied the contract in question, was held formal, and curable by amendment. In an action upon a promissory note, an amendment of the complaint, by inserting therein a count tor goods sold and delivered, which formed the consideration of the note, was allowed (m the trial. Held, that as the amendment was in furtherance of justice, and did not change, substantially, the claim of -the plaintifl', and it only op- erated to conform the pleading to a. state of facts which the evidence had already disclosed . might possibly exist, it was clearly authorized. (Vibbard v. Roderick, 51 Barb. 616.) Independent of the Code, the supreme court has the power, on motion at special term, at any- time before verdict, to allow amendments to pleadings, by permitting the insertion of a new cause of action, or a new defence. But the power of the court to allow; such an amendment during the trial of a cause, is quite a diflerent thing. Such a power did- not exist before the Code, nor has it been conferred by that statute, it seems. (Ford Y.-Foi-d, &3-Barb. 525 ; S. C. 35 How. 321.) The court has uo power, on the trial of a cause, to alloiv the amendment of a pleading by inserting a new- cause of action, or a new defence. And if such power is not possessed by the oourt, it is not possessed by a-re/eree. (Ibid; Union BanhM. Mott, 18 How. Pr. 506.) If, on the trial before a referee, such an amendment is desired, it can only be sustained by suspending the trial or iieaiing, and applying, on notice, to the special term. (Ibid.) The opinions advanced in Woodruff v. Dickie, (13 How. Pr. 164.) that " a referee is no longer an olficer of the court;" that "the court, at special - 413 207 PROCEEDINGS TO A DECBEE. [Book I. is not necessary to enable the complainant to avail himself of such facts at the hearing ; as the replication puts all the facts stated in the an- [*208] swer completely *iii issue between the parties ; and the complain- ant may, after such replication, examine witnesses as to such facts, as well as the defendant. (/) Yet where it is important to the complainant that a fact disclosed in the answer should be further inquired into, or avoided by some further statement, the practice of introducing such facts from the answer of the defendant, into the bill, is often resorted to. Thus, (f) Attwood V. , 1 Russ. 35S. t(irm, lias bo nidre power to grant amendments than the comt has on the trial; " and that " a referee has all the powers of a comt at special terra to allow amendments," disapproved. (Ibid ) An amendment which will change the foi-m and nature of the action from tort to assumpsit, cannot Ije asked for after the whole case is finished. {Remsom v. ifetmore, 39 Barb. 104.) After tbe trial of an action has been commenced, the power of the courts over the amendment of the pleadings is of a very limited and restricted character. But at any time before the trial has begun the pleadings may, upon special motion, bo changed and amended in all respects. {Bigelow v. Dunn, 53 Barb. 570.) Where a verdict exceeds the amount of damages claimed in the complaint, an amendment of the complaint by increasing the demand of damages to the amount of the verdict, will not be allowed, except upon the condition of payment of costs, and granting a new trial. {Corning v. Corning, 6 N. T. 97; Bowman v. Earle, 3 Duer, 69.) Where, in such a case, the judge, at the trial, allowed an amendment of the complaint, with- out imposing terms, and judgment was entered for the amcmnt of the verdict ; and the supreme court, cm appeal, vacated the order granting the amendment, and gave leave to the plaintiff to remit the damages, so iar as they exceeded the amount originally demauded ; and that being done, affirmed the judgment for that amount, with costs, reversing it as to the excess, the judgment was affirmed. (Ibid.) Where a complaint and answer are both very general in point of form, but neither party demurs, and both have gone to trial witji a fall understanding of their rights, and neither party has been taken by surprise by the pleading of his adversary, and a full and fair investigation has been had upcm the merits, such an amendment will be allowed as may be necessary to conform the complaint to the facts proved, and as will do substantial justice to both parties. (Hunter v. Hudson River Iron Sf Machine Co. 20 Barb. 493.) After an action has been tried and submitted, it is discretionary with the court to allow an amendment by inserting the names of new parties defendant. {Ford v. Jielmont, 7 Hob. 510.) And the court has power, at general term, to modify a judg- ment dismissing a complaint absolutely, so as to add to it a dh'ection to let the cause stand over to add parties in a proper ease. {Loeschigk v. Addison, id. 508.) If it is shown that the plaintiff was acquainted with the facts before the commencement of the acticm, which he iailed to set up, he cannot do so by amendment after trial. {Bulen V. Burdell, 11 Ab. 381. See Cocks v. liadford, 13 id. "207.) If the complaint was not amended on the trial, but might have been, and sufficient evidence is offered to sustain a cause of action, the court will, even after the trial, allow it to be amended nunc pro tunc, to sustain the verdict. (Coleman v. Playstcd, 36 Barb. 26 ; Lounsburi/ v. Furdy, 18 N. T. 515, 521.) And even after judgment the court has an extraordinary power to insert new alle- gations material to the case in a pleading. This power will, however, be very spar- ingly exercised. (Field v. Hawxhurst, 9 How. Pr. 75; Egert v. Wicker, 10 id. 193.) After judgment, amendments will very rarely be allowed for any other purpose than to sustain the judgment. (Englis v. Furniss, 3 Ab. 82; Gasper v, Adams, 24 Barb. 288; Williams v. Birch, 6 Bosw. 674.) In Saltus V. Genin, (3 Bosw. 639,) where the plaintiff waited two years and three months after the court had, on appeal, decided that, upon the facts proved and spe- cially found on the trial, no recovery could be had under his complaint, it was held that it was too late to ask leave to amend, if the sole ground of the application waa that on the trial evidence was given of facts of which the plaintiff was not before apprised. If in any case an amendment should be allowed after so great delay, it 414 Chap. 7.] PROrCEEDINGSTO A DECREE. £08 where a complainant not being satisfied with the answer, amended his bill, stalling by way of pretence a qnotation from the answer, and nega- tiving it, and insisted that the facts would appear differently if the defendant would look into his accjunts, it was held that the matter so introduced was not impertinent, {g) (g) Seelye v. Boehm, 2 Mail. 176. onsht not to be where it appears that, if the plaintiflf is entitled to recover at all. it is upon a ground highly teehnical, and where, if his claim bo strictly legal, it is not meritorious. (Ibid.) After a trial has been had, and the defendant's case has been fully developed, if the plaintiff amends his case, he should elect upon what aver- ments he will rest his ca- land V. Kreyenhagen, id. 455 ; Bierson v. McCahill, 22 id. 127.) Where a pleading is defective, a demurrer should be sustained, and leave be granted to amend. (Gal- lagher V. Delaney, 10 Oal. 410.) And if the plaintiff then deoliues, final jndgmenC should be given, (ibid.,) unless the complaint is so defective that it cannot be made good by amendment. {Lord v. Hopkins, 30 Cal. 76.) After demurrer sustained, amendments may be made uptm motion. {Smith v. Treka Wat. Co. 14 Cal. 201 ; (J-allagher v. Delaney, 10 id. 410.) The party desiring to amend after demurrer sus- tained, must make his motion to the court ; and he cannot object, on appeal, that he was not permitted to amend, when he made no offer. (Ibid.) The tiUug of a new Complaint, after demurrer sustained, is not the commencement of a new action^ {■Tones v. Frost, 28 Cal. 245.) It simply takes the place of the original complaint.' {Barber v. Reynolds, 33 Cal. 497.) The allowance of amendments at the trial is in the discretion of the court, {Thorn- ton V. Borland, 12 Ca.l. 43d ; Gillan v. Hutchinson, 16 id. 153 : Cooke y. Spears, 2 id. 438,) and that discretiira will rarely be revised; {Pierson v. McCahill, 22 Cal. 127 ;) but, for its abuse, tho appellate court will interfere. (Cooke v. Spears, supra.) Where, in the course of a trial, it is discovered that pleadings are so defective that the real subject of dispute cannot be finally determined, the court should allow amendments on such terms as may be just. (Stringer v. Davis, 30 Cal. 218; Vctvrs V. Foss, 16 id. 3,57; Gavitt v. Doab, 23 id. 78.) A motion to amend is always i i time when it immediately follows an objection to the pleading. ( Valencia v. Coucli, Zi Cal. 339.) It does not come too late, though made after the plaintiff' has close I his testimony. (II).) A complaint may be amended after verdict and before jndg- inent, so as to conform to the verdict. ( Hoofer v. Wells, 27 Cal. 35.) In Kentucky, the prt)visions of the Code, in respect to amendments by the court, are similar to those of section 173 of the Code of N"ew Ycn'k. (Code of Prac. § 161.) Couits may permit the amendments authorized by the Code to be made without be- ing verified, unless a new and distinct cause of action or defence is thereby intro- duced. (Id. 5 166.) Under section 161, the court may' allow amendments to the complaint, even during trial, upon proper terms, bj- addiug or striking out tho names of parties ; or correcting mistakes in the names of parties, or any other mistake ; or Vol. L— 37 '417 208 FROCEEBTNGS TO A DECKEE. [Book I. The question whether the court will or will not permit a bill filed for the mere purpose of discovery, to be converted into one for relief, by an amendment adding a prayer for relief, does not seem to be set- tled. {Ic) But as a cross-bill is entitled to be treated with greater indul- gence than an original bill, in a case where the defendant filed a cross- bill for the purpose of getting a discovery, only, from the complainant in the original suit, but did not get any answer to it before the hearing of the original cause-; in consequence of which the discovery becanm "useless; whereupon the defendant amended his cross-bill by praying relief, it was held that under the circumstances, he was at liberty to do 80. (0 A bill for relief cannot be converted into a bill for a discovery by striking out the prayer, (w) (Ic) See 1 Dan. 5U (I) Severn v. Fletcher, 5 Sim. 457. (m) i'iirl CholraoHdeley v. Clinton, 3 Ves. & B. 113. 2 .Mer. 71. insertinu material allegations; or so changing the allegations thereof a.s to conform to the proof; provided the ground of action i.s not materially altered. {Coil v. Kow- aid, cited Myers' Code, 42(3.) A plaintiff has the right to strike from his complaint any cause of action at any time hefoi'e the final submission of the case to the jury, or to the court, where the trial is by the court. By amending the petition he may submit a distinct cause of action from that contained in the original complaint. (JSord V. Chandler, l:i B. Mon. 404.) Section l;j7 of the Code of Ohio is the same as section 161 of the Code of Ken- tucky, and section 173 of the Code of New York. Under it, it has been held that striking out the name of the nominal plaintiff, and inserting that of the real party in interest, is not an amendment that changes .substantially the original claim made, uor could it by any means operate as a surprise to the defendant. {Ansonia Rubber Co. V. Wolf, 1 Haudy, 23j.) The law respeotiug amendments for misnomer is sub- stantially the same as before the statute authorizing actions to be bi'ought- against defendants in their firm name. {Lane v. McCartij, 2 Handy, 191.) Where an action was brought on a promissory note, but not in the name of the real party in interest, the court permitted au amendment to be made, by substituting the name of the real party, aud filing an amended complaint in his name, upon payment of all costs, ex- cept for the issuing and service of process. {Clawson v. Cone, 2 Haudy, 67.) Section 131 of the Code ot Ohio, which relates to vai-iances between allegations in a pleading and the proof, and the power of the court to order the pleading to be amended, is the same as section 169 of the jS"kw York Code. In Indiana, the court may, at any time, iu its discretion, and upon such terms as may be deemed just, add or strike out the name of any party, correct a mistake in name, description, legal effect, or in any other respect ; insert, strike out, or modify any material allegatiim to conform the pleadings to the faets proved, provided the cause of action or defence be not thereby substantia.lly changed. {I R. S 4cj, § 99.) When the allegations of a pleading are so iudehuite that the precise nature of the claim or defence is not apparent, the court may require the pleading to be made oer- ta,in aud definite by amendment. (Id. 45, § 90.) A variance between the pleading aud the proof is disregarded, unless it be proved to the satisfaction of the court that such variance has actually misled the adverse party, to his prejudice in maintaining his action or defence, upon the merits.- It must be proved, however, in what respect the party ha.s been so misled ; and even then the court may order the pleading to be amended upon such terms as may be just. (2 &. S. 46, $ 94; 19 Ind. 290.) Where the variance is such as may be disregarded under the last section, the court may di- rect the fact to be found according to the evidence, or may order an immediate amendmeut, without costs. (Ibid. § 95.) In Winconsin, section 81 of the Code, relative to amendments hy the court, is thy same as section 173 of the Code of New York, supra. Section 147 of the Code of Kansas is also nearly identical with section 173 of the New York Code. So, also, is sec-jou 94 (xo) of the Code of Minnesota. 41 S Chap. 7.] PROCEEDiyOS TO A DECREE. 208 It is said, by Lord Chancellor Hart, that great latitude is allowed to a complainant in making amendments; and that wherever it can be done, an amendment is to be preferred to a supplemental bill, {n) (8) *Yet, if a complainant takes advantage of an order to amend, [*209] so as entirely to change his case, and to make the bill a perfectly new one, he will be ordered, upon motion, to place the defendant in the same position, with regard to costs, that he would have been in had the com- plainant, instead of amending, dismissed his original bill, with costs, and filed a new one. Thus, where a complainant, by his original bill, sought to set aside a deed, and after the answer was filed, he amended the bill by making quite a diffei-ent case, and sought to establish the deedj the court ordered him to pay the costs of the original bill, and of certain accounts set forth in the answer, in compliance with the prayer of that bill, and the costs of the motion, (o) Upon the same principle, where a complainant takes advantage of an order to amend to strike out a portion of his bill, though he does not alter the nature of it, yet if expsnses have -been occasioned to the defendant by the part wliicii has been struck out, wliich, in consequence of its having been so struck out, could not be awarded to him at the heaving, the court will, upon motion, order such costs to be taxed and paid to the defendant, {p) In respect to amendments as to parties, the courts ai'e more liberal than as to other amendments. A court of equity will hot dismiss a bill absolutely, for want of proper parties, if the complainant shows enough to give color to his claim for relief against the parties not before the court, {a) As respects the time within which an amendment may be made, it is settled that it must be done at the earliest opportunity, and that any (n)- Hammond v. Hammond, 1 Moll. 313. (o) Mayor v. Dry, 2 Sim. & Stn. 113. See also Smith v. Smith, Coop. 141. (p) Deiitv. vyaidel, 1 Diek. 339. Bnllock v. Perkins, id. 110. (a) Allen v. Smith, 1 Leigh, 331. (8) Section 176 of the Code provides that the court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not afleot the substantial rights of the advei'se party ; and no judgment shall be reversed or affected by reason of such error or defect. ■WTiere the summons stated that the complaint would be filed in the office of the clei'k of the city and county of Seyr York, and on demand a complaint was served which did not specify the venue,' it was held that the complaint might be amended under the above section. {Davison v. Powell, 13 How. Pr. 287. See Merrill v. G-rin- nell, 10 id. 31.) This secticm must not be oonstrned to make valid a bad pleading in an action brought under the old practice, when the defects are demurred to. ( Van- (lenburgh v. Fan Valkenburgh. 8 Barb. 218.) Section 176 applies to the court of appeals equally with the court of original jurisdiction ; and tlie appellate court will not reverse a judgment because of defects in the pleadings which liavo not affected the substantial rights of the appellant. (Johnson v. Hathorn, 3 Keyes, 126 ; S. C •g id. laH; Bank of Havana v. Macjee, 20 N. T. 3U0.) 419 209 PROCJSEDnXGS TO A DECREE. ' [Eook I. unreasonable or improper delay will deprive the party of the favor of 1h? court, (b) Thus the court will not give to a complainant leave to :i,.ajnd his bill, if he has not taken any step in the prosecution of the suit for an undue length of time, (as for instance, for two years after answers put in,) and be unable to explain this delay, (c) When amendment vi%y he made of course, and when only on special ^notion.] It is a general principle that no alteration can be made in any pleading or other matter after it has been filed, and by that means become a record of the court, without the sanction of a previous order. The 43d rale of court, however, allows the complainant, in cases where the bill has not been sworn to, to amend it at any time before [*:310] *plea, answer, or demarrer pat in, of course, and without costs. He may also amend of course, after answer, at any time before replying, until the time for replying expires, and without costs, if a new or fur- tlier answer is not thereby rendered necessary. He may also amend sworn bills, except injunction bills, of course, if the amendments are merely in addition to, and not inconsistent with, the original bill. (9) (b) Rogers v. Rogers, 1 Paige. 4-21. (cj Altree v. Horden, SLond. Jurist, SI. (9) By the Code, any pleading may be onee amended, by the party, of course, ■n-ithout costs, aud •without prejudice to the proceeding.^ already had, at any time within twenty days afcer it is serred, or at airy time before the period for answering it expires; or it can be so amended at any time within twenty days after the service of the answer or demurrer to such pleading, unless it be made to appenr to the court that it was done for the purposes of delay, and the plaintiff or defendant will thereby lose the benefit of a circuit or term for which the cause is, or may be, noticed. It it appears to the court that such amendment was made for such purpose, the same may be stridden out, and such terms imposed as to the court may seem just. (Code,' i 172.) , . If the plaintiff is ignorant of the name of a defendant, snch defendant may be des- ignated, in any pleading or proceeding, by any name ; and when his tiiie name shall be discovered, the pleading or proceeding maF be amended accordingly. (Code, §175.) Under section 172. a plaintiff is authorized to amend his complaint, of course, by setting forth a new cause of action. The right is not restricted to setting forth a cause of action of the same class as that contained in the original complaint. The plaintiff may, by omitting the original cause of action, insert another of a different class, provided the summons be appropriate to it. (Brown v. Leigh, 12 Ab., N". S. 193.) But this cannot be doue on the trial. (Van Si/cMes v. Perry, 3 Rob. 621.) A. plain- tiff may amend his complaint, of course, without costs, by strikmg out one of several causes of action, ( Watson v. Eushmore, 15 Ab. 51.) or by adding a new cause of ;i,ctiou. (Mason v. Whitely, 1 Al). 8.") ; S. C. 4 Duer, 611 ; Jeroliman v. Cohen, 1 Duer, ()i9.) Tlius, a complaint upon a promissory note may l)e amended by setting forth both the note aud a judgment obtained upon it in another state. (Thompson v. Min- fiird, 11 How. Pr. 27:1) But a verification cannot be added to a complaint by a;nendmeut. (George v. McAsoy, 6 How. Pr. 200.) Si^ctiou 172, allowing amendments, of course, without application to the court, is simply au enactment of what has been a standing rule of the supreme court ever since 1793, except that the rules gave more time for the exercise of this privilege. The section is not to be construed as allowing amendments which the court is pro- hibited from aUowing upon special application. (Spalding y. Spalding, ^i How. Pr. :«0 ; S. C. 1 Code Eep. 64.) But, in Dows v. Green, (3 How. Pr. 377,) where the action was brought for an unjust detention of personal property, and the plaintiff's demanded judgment for the value thereof merely, it was held that the court had power to aUow an amendment of the complaint by altering the prayer for relief, so' 420 Chap. 7.J PROCEEDINGS TO A DECREE. 210 But amendments of injunction bills, except creditors' bills, cannot 'be made without a special order of the court and upon notice. Creditors' bills may be amended of course, in the same manner as bills not sworn to, if the amendments are merely in addition to, and not inconsistent with, what is contained in the original bill. But all such amendments must be sworn to. (q) Amendments'of course may be made without entering any order, (r) On a demurrer for want of parties, or for any other defect which does ■not go to the whole bill, the complainant may amend of course, on pay- ment of costs, at any time before the demurrer is noticed for argument, or within ten days after receiving a copy of the demurrer. On a demur- rer for causes other than the above, the right to amend, and the terms of the amendment, are in the discretion of the court, (s) (q) Kule 190. (r) Rule 43. (s) Rule 44. as to claim the property itself, and damages for its detention. (But see Morris v. Bexford, 18 !N". T. .557, to the contrary.) Tiie necessity for a new assignment no longer exists, the amendment of the com- plaint, uader this section, having taken its place. (Stewart v. Wallis, HO Barb. 345.) The right to amend, of course, does not constitute of itself a stay of proceedings. (Cusson V. fVhalon, 1 Code Bep., IJ". S. 27; Flumb v. WIdpples, 7 How Pr. 411.) Section 172 is only applicable to a case where ttie pleadings first put iu are regular. If the opposite party wishes to move to set aside the first pleading for iri'ogulaiity, and has served the proper papers, notwithstanding the irregiilai'ity has been corrected by the amendment, still the party amendiag, although his amendment is iu time un- der this section, must pay the costs of the motion. (Prudden v. City of Lockporl, 40 How. 46; Williams y. Wilkinson, 5 id. 357; S. C. 1 Code Rep., S. S. 20.) Au order directing a complaint to be amended iu certain particulars, does not preclude the plaintilf from serving au amended complaint, containing new and material iille- gatious, provided the time for amending, as of course, has not expired. {JeroUman V. Cohen, 1 Duer, 629.) Yet the complaint so amended must not contain any matter that, by the first order, was directed to be striclteu out. (Ibid.) If there are more defendants than one, the plaintifi' cannot amend as regards one defendant, unless he gives notice to the other. (Fassett v. Talltnadge, 15 Ab. 205.) Nor win an amendment, of course, authorize the strikiug out of any of the parties who have been served with the summons. {Russell v. Spear, 5 How. Pr. 142; S. C. 3 Code Eep. 189.) Neither can the names of additional defendants be inserted iu the complaint by amendment without amending the summons. (Followers. Laugli- lin, 12 Ab. 105 ; Walkenshaw v. Perzel, 32 How. 311 ; S. C. 7 Bob. 606.) In Bemis V. Bronson, (1 Code Rep. 27,) however, it is held that a defendant's name may be stricken out, or added, by amendment. And in Fuller v. Webster Fire Ins. Co. (12 How. Pr. 293,) it is held that the name of a defendant may be stricken out, and that of a receiver added. Circumstances which have occurred since the commencement of the action cannot be introduced into the complaint by amendment. (Sornfager v. Hornfager, 1 Code Rep., N. S. 180; S. C. 6 How. Pr. 13; Van Syckles v. Perry, 3 Rob. 621.) If they are, they may be stricken out, on motion, for irregularity. (Ibid.) But where a new defendant is brought in hy an amended instead of a supplemental complaint, and facts are set up which, as to such defendant, occuiTed after the service of the original complaint, it is ah irregularity which does not afl'ect any substantial right of the de- fendant, and a general appearance by him in the action will waive the defect. (Beck V. Stephani, 9 How. Pr. 193.) Au amendment, of course, will not be allowed where it is sought to change a cause of action from one for a money demand on contract to one for relief. (Gray V. Brown, 15 How. Pr. 555.) The plaintifi' may, under section 172 of the Code, and without costs, amend his complamt by changing the place of trial, even after the service of the answer i-Zi 210 PROCEEDINGS TO A DEOnEE. [Book I. Amendment of sworn bills.] Amendments to pleadings which are Bworn to are allowed with great caution,; as a general rule, {t) Yet we have seen that a sworn bill (if it is not an injunction bill), may be amended of course, and without costsj if the amendments are merely in addition to, and not inconsistent with, what is contained in the original bill; such amendments being yerified by oath, in the same manner as the bill is required to be verified. («) Amendment of injunction bills.] By the practice in England, if a complainant who has obtained an injunction for want of an answer, amends his bill before an opportunity has been afforded of discussing the propriety of the injunction upon the merits of the case, he will lose the benefit of the injunction. In other words, an injunction drops of course upon the complainant's amending his bill; unless leave is granted to amend withoiit prejudice to the injunction; (v) which will CtJ Verplanck v, Tlie Mercantile Ins. Co. 1 Edw. 46. (M) Riileh43 an>l 100. Ci>J Bliss v. Boscawen, 2 Ves. & B, 102. {Stryker v. Neic York Exchange Bank, 42 Barb. 511 ; S. C 28 How. 20.) But after uotice of a motion by the def'endaut to change the place of trial (for good cause) has been served, an amendment of the complaiut by merely changing the place of trial will not prevent the making of the motion. (ToIIy. Cromwell, 12 How. Pr. 79.) If a party notices tlie cause for trial, he thereby waives the right to amend his pleading without leave. {Phillips v. Suydam, 6 Ab., ^. S. 289 ; S. 0. 54 Barb. 153.) Wheu a pleading is served by mail, the party may amend it, of course, and with- out costs, at any time within forty days, (double the usual time in case of personal service.) {Washhurn v. Serrick, 4 How. Pr. 15.) Where tlie summons and cnmplaint had been served, and before the defendant's-' time to answer had expired, the plaintiff served au amended complaint, and within twenty days after the service of the original ecmiplaint entered judgment, it was held that it was irregular, the defendant being entitled to twenty days after the service of the amended pleading in which to answer or demur to it. (Snyder v. White, 6 How. Pr. 321.) The right to amend, under § 172, is absolute, subject only to the power of the ct)urt tu strike out for cause showu. The court must pass upon the question of intent aa well as of the effect, and be satisfied that the amendment was made for the pur- pose of delay, and that such will be the effect of it, before it can be stricken out. (G-riffin V. Cohen, ti How. Pr. 451, 453.) There is nothing in that section authorizing the party u|)on whom au amended pleading is served to disregard it if served within the proper time. (Ibid ; Strout v. Curran, 7 flow. Pr. 36.) An amended complaint cannot be disregarded, and treated as a nullity, and an order taken dismissing the complaint when the cause is called upon the calendar. (Rogers v. Jiathhuii, 8 How. Pr. 4ti6.) Where it is supposed that an amendment has been made in bad faith, and for the purpose of delay, the proper practice is to apply to the court for relief. (Ibid. ; Griffin v. Cohen, supra. See Hollister v. Livingston, 9 How. Pi. 140.) The last paragraph of section 172, authorizing the court, in its discretion, to order actions to be divided, applies to actions in the different classes speciiied in section lti7 ; that is, if the plaiucifi' has united in his complaint a cause of action in "ue class with a cause of action iu another class, the court may, in its discretion, order the action to be divided into as many actions as may be necessary. (Uobinsim v. Jucld, 9 How. Pr. 378, 383. See Alger v. Scoville, 6 id. 131 ;' S. C. 1 Code Uep., N". S. 303; Lord V. Vredand, 13 Ab. 195; S. C. 15 id. 122; 24 How. Pr. 316.) A plaintiff may amend, of course, in the matter of changing or enlarging the re- lief demanded Thus, where the original complaint claims damages only, he may amend the cmnnlaint by adding a dejnand for au injunction. (Getty v. Hudson River R. R. Co. 6 How. Pr. 2b9 ; S. C. 10 S. Y. Leg. Obs. 85.) Yet. iu Gray v. Brown, (15 How. Pr. .557,) it was held that an action at law could not be turned into one for 4:U Chap. 7.] PBOCESDisGS to a decree. 210 not be given except upon special application specifying the amend- ment, (w) In this state no amendment of an injunction bill, unless it be a credi- *tor's bill, can be allowed without a special order of the court [*211] and upon due notice to the adverse party, if ho lias appeared in the suit, (x) And such a bill will not be amended unless the proposed amendments are distinctly stated and sworn to ; and the application to amend must be made as soon as the necessity of an amendment is dis- covered, {y) In the case of Renivick\. lFi7so?i, (z) Chancellor Kent allowed an (to) Vesev V. Wilks, 3 Srjul. 475. (X) Hnle"«. See also West v. Coke, 1 Maiphy, 191. (y) Eortirei'S v. Uodgers, 1 Piiige, 4-'4. (zj 6 John. Ch. Eep. 81. equitable relief withitut leave of the court, and, also, without au amendment of tho summons. All objections to the propriety of an o.meuded complaint are waived by the defend- ant amending his answer, and taking issue on the new cause of action. {Seoor v. Law, 9 Bosw. 16o.) A bill of particulars forms a part of a complaint, and is amendable as such. (J/ei- vin V. Wood, 3 Keyes, 533; S. 0. 4 Ab., N. S. 438; 3 Trans. App. 297.) In California, pleadings may be amended, as a matter of course, after a demurrer is interposed, and before the hearing thereof. (Cal. Pr. Act, $ 67.) A complaint , may be amended, as of course, at any time before summons is issued. {Allen v. Marshall, 34 Cal. 165.) In Eeiitucky, a plaintiff may amend his complaint, without leave, at any time be- fore au answer is tiled, aud without prejudice to the proceediugs already.had. (Oode, § 159.J Section 134 of the Code of Oldo is the same. In Indiana, any pleading may be amended bp either party, of course, at any time before it is answered. (Biclc. Civ. Pr. 110 ; 2 K. S. 48, ^ 97.) Section 80 of the Code of Wisconsin, relative to amendments of course, is nearly identical with section 172 of the Code of ifew York. So, also, is section 93 of the Code of Minnesota. By the Rules of Practice in Chancery in Massachusetts, "tlie plaintiif may amend Ms liill at any time before answer, plea or deumrrer filed, of course, and without pay- ment of costs ; but if the defendant's appearance is entered, and he shall have pro-; cured a copy of the bill, the plaintiff shall, at his own expense, furnish the defendant with a certified copy of the amended bill. N"o amendment shall, be allowed, as of course, to a bill which has been sworn to by the party." (Rule 10.) "Upon the coming in of the defendant's answer, if the plaintiff shall find it necessary to amend his bill in order to meet the case made by the answer, he may do so by furnishing tti the defendant a certified oopj' of the ameuded bill at his own expense." ( Rule 18 ) For the practice in Maine, see 3d liule of Chancery Practice. (37 Maine, 581.) In New Hampshire, amendments may be made to the pleadings, in proper cases, upon the order of the .judge in vacation, aud upon such terms as he may impose, the amendments being subject, however, to the order of the courc. (Rule 18 of Chan- cery Practice, 38 N. Hamp. 608.) In the United States courts, a general rule provides that " the plaintiff shall be at liberty, as a matter of course, and without payment of costs, to amend his bill in any matters whatsoever, before any copy has been taken out of the clerk's office, aud in any sma.ll matters afterwards, such as filling up blanks, correcting errors of dates, misnomer of parties, and generally in matters of inrm. But if he amend in a mate- rial point, (as he may do, of course,) after a copy has been so taken, before any auswer,_ plea or demurrer to the bill,' he shall pay to the defendant the costs occa- sioned thei'eby, and shall, without delay, lurnish hini a fair copy thereof, free of ex- pense, with suitable references to the places where the same are to be inserted. And if the amendments are nunienms. he shall furnish, in like manner, to the defendant. a copy of the whole bill as amended ; and if there be nnu'e thau (me defendant, a, eopy shall be furnishcdto each defendant affected thereby." (Equity Kule, 28.) 423 21 X PROCEEDINGS TO A DECREE. [Book I. injunction bill to be amended as of course, after the answer had been excepted to as insufficient, by inserting additional statements and charges, without prejudice to the injunction, and without costs, but refused to allow amendments, by striking out or altering any part of the bill, without due notice of the motion, accompanied by an affidavit stating the precise amendment asked for. Amendments after demurrer.^ Where a demurrer for want of par- ties is allowed, the cause is not considered so much out of court but that the complainant may afterwards have leave to amend, by bringing the necessary parties before the court, (a) , The Mth rule provides, that 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 complain- ant may amend of course on payment of costs, at any time before the demurrer is noticed for argument, or within ten days after receiving a copy of the demurrer. If the demurrer is for other causes than the above, the right to amend, and the terms of the amendment, are in the discretion of the court. (Z>) Where a mere formal objection to the bill is made by demurrer ore temis, the complainant will be permitted to amend without costs, (c) Though if he seeks, under such circumstances, to amend more exten- sively than by merely adding parties, he must pay the defendant the costs of the demurrer, (d) Upon the allowance of a demurrer on the ground of a formal defect in the bill, the complainant will be allowed to amend, if his counsel has acted under a mistake as to the practice. Thus, where by mistake, the allegations in a creditor's bill, made necessary by the 189th rule, were omitted, a demurrer was sustained, but leave to amend was given, (e) (10) fa) Brcssenden v. Decreets, 2 Ch. Ca. 197. Ves. 773. Marshall v. Lovelass, Cam. & Norw. 239 '264. Benzein V. i.ovelass, ifl. 520. (bj See also 4 Hen. & Miu]f. 475. 2 Mason, 342. 1 Bibb, 4S3. (c) Garlick v. Sti-oiig, 3 Paige. 440. 4 Sim. 5S5. (dj Newton v. Lord liJgmont, 4 Sim. 585. Ce) McElwain v. Willis, 3 Paige, 605. (10) After the decision of a demmxei-, either at a general or special term, the court may, in its discretion, if it appear that the demurrer was interposed in good faith, allow the party to plead over, upon such terms as may be just. (Code, § 172.) If the demun-er be allowed on the ground that several causes of action have been improperly united, the court may, in its discretion, and upim such terms as may be just, order the action to be divided into as many actions as may be necessary to the proper determination of the causes of action therein mentioned. (Code, § 172.) If, after a demurr.er for defect of parties, the plaintifl' amends his complaint by adding the necessary parties, but does not amend the summons, the amended com- plaint may be struck out, on motion. {Follower v. Laughlin, 12 Ab. 105.) Such motiou may be made by the original defeudauts. (lb.) When a pleading is sustained by overruling the demurrer, and leave is given to answer the pleading, the demurrant is put to his electiou to answer over or submit t How. Pr. 1 ) Striking out portions of the complaint, on motion, as irrelevant and redundant, cannot be considered an amendment there. )f, within the meaning of § 172 of the OiiJi;. {Ross V. Dinsmore, 20 How. Pr. .32S; S. C. 12 Ab. 4.) "Where, in such a case, the order of the court gave tlie plaintiff the right to amend Vas, summons and complaint, as he should be advised, without his solicitation or consent, and sub.seq^uently he amended the summons under the order, but gave notice at the same time that he elected not to amend the complaint under the order, it was held that this notice, if considered as a waiver of the right to amend the complaint iin that stage of the ac- tion, did not foreclose the plaintiff's right to amend once, of course, upon service of the answer of the defendant. (Ibid.) Vol. I.— 28 433 218 PROCEEDZiVSS TO A DECREE. [Book I. to, will not be considered as the one order to amend, which, by the terms of the 13th order above referred to, the complainant is entitled to have after answer. (A) And for the same reason it has been held that th« amendment of a bill, by adding parties afber a demurrer alloived, will not preclude a complainant from amending, as of course, afcerthe answer has come in. (i) [*319] *l7i loliat time ainenimunt is to he made.] This branch of the subject has been already anticipated. It will therefore be sufficient to refer the reader to the previous pages of the present section, and to the 43d, 44th and 45th rules of the court. The time to amend the bill may be extended, if necessary, by the court, on special cause shown, {h) Amendments, hoiu made.] When an order to amend has been obtain- ed, the first thing to be done is to serve it upon the defendant, in the usual way. {I) And where the order is granted upon payment of costs, those costs must be paid or tendered -before any further pi'oceedings are had; otherwise, such further proceedings will be nugatory, (w) Amendments of course may be made without entering any rule or order for that purpose. But the registers and clerks are not to permit any amendments to be made unless they appear to be duly author- ized. («) Upon an amendment of course, the complainant's solicitor must either file a new engrossment of the bill, or furnish the register or clerk with an engrossed copy of the amendments containing proper refer- ences to the folios and lines in the oi'iginal bill on file, where such amendments are to be inserted or made, (o) (13) Creditor's bills maybe amended of course in the same manner as bills not sworn to, if the amendments are merely in addition to, and not in- (7i) Bird v. Hustler, 1 Rnss. & My. 3i5. (i) Pesheller v. Hammett. 3 Sim. i589. (A) Rule 126. (!) WooilliDiise v. Meredith, 1 Jac. Jk W. 2W. 8. \m) Hiude, 22. (n) Rule 43. (S) Rule 43. t (13) N"o notice of motion for leave to amend need be given, when the only gi-ound for or against the amendment is furnished by the record. The amendment in that case may be granted on the hearing at the general term. {Clark v. Dales, 20 Barb. «7.) Irregularities in a judgment-roll, which may be cured by amendment — such as Tvant of proof of service of complaint, and of no answer — may, if an order for the amendment has been made and filed, be regarded as having been actually made. {Bogert v. Bogert, 45 Barb. 121.) In California, when a complaint is amended, a copy of the a.mendments must be filed, or the court may, in its discretion, require the complaint as amended to be filed. (Cal. Pr. Act, § 43.) The party desiring to amend must serve an engrossed copy of the pleading, with the amendments incorporated therein, or a copy of the proposed amendments, referring to the page and line of the pleading where the amendment is to be inserted, together with the notice of application to amend. (Ibid. ; 3 Bstoe'.i Pr. 311.) 434 Chap. 7. J PROCEEDINGS TO A DECREE. 219 consistent with, what is contained in the original bill. But all such amendments must be verified by oath, in the same manner as the bill is required to be verified, {p) With the exception of creditors' bills, no injunction bills can be amended without a special order of the court and upon due notice to the defendant, if he has appeared, {q) Nor can any amendments be allowed which are inconsistent with the original sworn bill, (r) The complainant cannot amend under the 45th rule, by leaving out the name of a defendant whose answer is insufficient, {s) Where the amendment is not of course, the record must be amended by interlining ; provided it can be done so as to make the record fair and legible. Or, if the amendment be by omitting original matter, it *is done by drawing a pen through the same, {t) With respect [*220] to the quantity of matter which maybe introduced into a record with- out requiring a new engrossment, that appears to be limited by the English practice, to two chancery folios, or 180 words, in each place, (m) If the amendment exceeds that quantity of words in any one place, or the bill has been so often amended that tlie amendment inserted, though under two folios, cannot be interlined upon the record, or are so con- sidererable as to blot and deface it, a new engrossment must be made and annexed to the original record, {v) It was held in the case of Pierce v. Wesfs executor, decided in ono of the circuit courts of the United States, {tc) that the amendment should state only so much of the original bill as may be necessary to introduce and to make intelligible the new matter, which should alone constitute the chief matter of the amended bill. After a defendant has put in his answer on oath, the complainant cannot amend his bill, and include in such amendments a waiver of the answer of the defendant on oath, so as to deprive him of the bene- fit of his answer to the amendments, so far as it may be responsive to the bill, {x) A complainant cannot, by amendment, introduce matter which would constitute a new bill, {y) Therefore, after a decision upon a plea to the jurisdiction, that a bill between members of a manufacturing cor- poration cannot be sustained, the court will not grant the complainant leave to amend by averring that the corporation had been dissolved. (2) In the case of Hunt v. Holland, {a) it was decided in this state, that (p) Rule 190. (g) Rules 43 and 45. (r) Kule4i. (s) (Jhase v. Bniiliam, 1 Paige, 572. («1 Hiiifle, 33. 1 Fowl. Exch. Pr. 121. Ricky v. Kemmis. 1 Heat. 317. (u) 1 Turn. & V. 169. W I'l- il). Hiiide, 22. \w) 3 Wash. C. C. Kep. 354. {x) Bunas v. Looker, 4 Paige, 227. [y) Verplanck v. Mercantile Ins. Co. 1 Eilw. 47. \z) Pratt V. Bacon, 10 Pick. 122. (a) 3 Paige, 78. 435 220 PROCEEDINGS TO A DECREE. [Book I. if ti bill which has been sworn to, is amended nnder the ] 90th rule, and 11 wftsy engrossment of the bill and amendments is filed, the defendant i i entitled to a copy of the bill as originally filed, as well as of the amended bill ; unless the amendments are particularly designated in ihe copy of the latter which is served. In that case. Chancellor Wal- worth observes : " There is no pretence here that any part of the origi- nal bill has been left out, or that the additional matters are inconsistent with the original bill. It was probably necessary in this case, to re- engross the original matter with the amendments, as the latter were numerous and long. And from an examination of the whole, it is evi- dent the amendments .could not have been verified by oath, in such a [*331] manner as to make *them intelligible, without incorporating them in this manner with the original matter, or preceding them with recitals, which would have made them longer than the whole amended bill now is, including the original matter. If it was necessary to attach the amended bill to the original bill on file, it was the business of the clerk to do it. Bat in point of fact, it is seldom done, as all the papers in the cause are usually placed together in the same bundle, and with- out sealing the original bill and the amendments together where there has been a re-engrossment of the whole bill. As no copy of the origi- nal bill had been served, and no answer put in, or appearance entered, at the time of the amendment, in this case, there, could have been no particular use or benefit to the defendants, or to any one, in having the amendments marked, as such, in the re-engrossment, or in the copy of the amended bill which was served. But as this was an injunction bill, the defendant might probably have compelled a delivery of a copy of the bill with the jurat annexed thereto, as originally filed, in order to move to dissolve the injunction, in addition to the copy of the bill as amended." An original bill cannot be amended by incorporating therein matters which have arisen subsequent to the commencement of the suit, (h) Nor by inserting facts known to the complainant at the time of filing the bill ; unless some excuse is given for the omission, (c) The signature of counsel is necessary to an amended bill, as well as to an original bill, (d) Where, however, the same connsel who signed the original bill amends his former draft, which has his signature, it is not necessary that he should sign the draft again; as the signature will be applied as well to the amendments as to the former draft. Nor is it necessary that there should be a second signature to the record. But (6) Stafford v. Hewlett, 1 Paise. 200. (c) Wliitmarsh v. CampbeU, 2 Paige, 67. (d) Kii-kley v. Burton, 5 Mail. 37S. 436 Cliap. 7.J PROCEEDINGS TO A DECREE. 221 if the amendments are made by another counsel, then it is necessary that there should be a second signature either to the draft or to the ''e igrossment. (e) The want of the signature of counsel to an amended bill is a good cause of demurrer. (/) The defendant may also move to have it talien o£F the file, for that defect, (g) In a case where amendments were introduced into a bill irregularly, and the defendant, instead of coming to the court by motion to com- plain of the irregularity, put in his answer, in which he insisted upon the *objecti6n and reserved to himself the same benefit of it as [*222] if he had pleaded it in bar ; to which answer the complainant replied and set the cause down for hearing: the court, after ordering the amended bill to be taken off the file, and all the proceedings upon it to be set aside as irregular, held that although the defendants might cer- tainly have prevented considerable delay and expense by bringing the objection immediately before the court, the costs ought to be borne by the complainants, (h) The proper course, however, to be pursued in general by the defend- ants, where a bill has been irregularly amended, is to apply to the court by motion either to have the amended bill taken off the file, or to have the amendments expunged. The former motion is applicable to cases where there has been anew engrossment, and the latter is adopted where the amendments have been merely made by interlineation of the old record, {i) Service of amendments.] By the 43d rule of the court, no amend- ment is to be considered as made until it is served upon the defendant, if he has appeared in the cause. (14) (el Webster v. Thrclfall. 1 Sim. & Stii. 135. (/) Kirkley v. Burton, supra. iff) Pitt V. Maoklew. 1 Sim. & Stn. 136, n. (h) Miirigan v. Mitchell, 1 Mylne & Craig, 433. (t( 1 Dan. 551. (14.) The Code requires that if the ootQplaint be amended, a copy thereof shall be served upon the defendant. (Code, § 146.) If, after a default, the plaintiff amends his complaint, (not in mere matter of form,) he must serve the same on the defendaat, or a judgment entered thereon will be ir- regular. (People ex ret Mumsey Y. floods, 2 Saudf. 652 ; S.C, 2 Code Rep. 18; Mer- cier V. Pearlstone. 7 Ab. 325. See Thomas v. Allen, 2 Wend. 618 ; Aikin v. Albany Northern R. U. Co. 14 How. 337; WardY. Dewey, 13 id. 193; ScudderT. Voorhis, 1 Barb. 55.) The amended complaint must be served on the attorney, and not on the defendant personally. (Meroein v. Pearlstone, 7 Ab. 325.) The right to aaswer an amended complaint is sabstantial, and a waiver of it should never be implied. {Low v. Graydon, 14 Ab. 443.) Hence, although a defendant omits to answer the original complaint, if it be amended he must have notice of the amendment, and time to answer (People ex rel. Bumsey v. Woods, 2 Sandf 652; S. C. 2 Code R: 18.) In California, after demurrer, and before argaraent and submission of the issue thereon, either party may amend a pleading by filing the same as amended, and serv- 4a 7 222 PROCEEDINGS TO A DECREE. [Book I. According to the practice in England, the amended bill having been filed, (the order to am.'nd having been previously served,) the complain- ant's clerk in court should, ia cases where the order has been made upon the complainant's undertaking to amend the defendant's office copy, call upon the defendant to produce his office copy in order that i t may be amended ; and the defendant being thus apprised that the order to amend has been acted on, must leave his copy with the com- plainant's clerk in court for that purpose, (h) But by our practice, the amendments should be served by delivering a copy of them, specifying the interlineations or passages stricken out, by the page and line, and any additions annexed to the bill, by the designating letter, and the page and lines where they are to be in- serted. (/) Terms of amendment.] The terms upon which the bill will be allowed to be amended under different circumstances, and in the various stages of a cause, are specified in the 4.3d, 44th and 45th rules of the court. (15) (A) Woodhouse v. Meredith, 1 Jao. & W. 20i. CIJ 1 Hoff. Pr. 292. iiig a copy on the adverse party or his attorney. (Cal. Pr. Act, § 67.) "When tho ooQiplaiut is amended, a copy of the amendments must be served upon every defend- ant to be affected thereby, or upon his attomev, if he has appeared by attorney. (Id. § 43.) (l.'S) Tlie party who applies for leave to amend shonld bear all the expense of the aniendinont. {Union Baltic y. Mott. 19 How. Pr. -207; S. 0. 11 Ab. ii.) This in- cludes the costs allowed by statute to the opposite party for his proceedings before notice of trial, and of resisting the motion to amend, and such disbursemeuts as are chargeable by statute against the unsuccessful party. {Hare v. IVItite, 3 How. Pr. 29ii.) Where a case has been he.ard and reported on by a referee, if an order is made al- lowing the complaint to be amended by inserting a new cause of action, it cmght only H) be done upon the condition that the plaintiff allow the report to be set aside, and the order of i-eference to be vacated, with costs to abide the result. The order should also provide for the service of an amended summons aud complaint, and the defendant should be allowed an opportunity to answer. {Allaben v. Wakeman 10 Ab. 11)2.) An amendment of the complaint by striking out counts or parts of counts, allowed by a jadge during the trial to be made without costs, is authorized by the section of the Code which permits such amendments, and refers the terms to the discretion of the court. {Cayuga County Bankr. Warden, 6 S". T. 19.) In Vanderpool v. Tar- hox, (7 N. X. Leg. Obs. 150,) where the complaint, in an action upon a promissory note, indorsee a^jainst maker, omitted to state that the note was indorsed by the payee to the plaintiff, it was held, on demuixer, that as the defect was technical, the plaintiif might amend without costs. In Turner v. Hillerline, (U How. Pr. 'isi.) after the caase had been brought to a hearing before a referee, and testimony taken, the plaintiff was allowed to amend his complaint by striking oat the name of one of' the defendants, upon the terms ot paying $10 costs of the motion, all tbe costs be- fore notice of trial, and the expense of amending the answer, if necessary. After a trial has been had, and the court, on appeal, has decided that upon tho facts alleged in the complaint the plaintiff cannot recover, if, after a lapse of ei"-ht months, tlie plaintiff' can be permitted to am3u I by changing, substantially, his cause of action, it should only be on the payment of all the costs accrued since the origmal complaint was filed. {Saftus v. Genin, :! Bosw. 639.) The terms upon which an amendment is granted are not subject to review upon exceptions. ( Vihhard v. Roderick. 51 Barb 616.) In Indiana, where a party amends by leave of the court, he must pay the costs of 438 Chap. 7.] PROCEEDINGS TO A DECREE. 222 It lias beea decided that -where a mere formal objection to the bill is made by demurrer ore tenus, the complainant will be permitted to amend without costs. (»i) *Where the complainant amends his bill by striking out the [*223] names of some of the defendants, the order will only be granted on the terms of paying their costs; as by striking them out as defendants, the complainant deprives them of the opportunity of applying for their costs at the hearing. («) Time to answer after amendment.^ Whenever the complainant is 2)ermitted to amend his bill, if the answer has not been put in, or a further answer is necessary, the defendant has the same time to answer after such amendment as he originally had. (o) (16) Effect of amending iill.l In general, an amendment before answer puts an end to all process of contempt which may have been issued for want of an answer ; and the court will not allow an amendment to be made without prejudice to the process, even though the complainant undertakes not to require any further answer to the amendments. (?j)(17) lira) Garlick v. Strong, 3 Paige, 440. (n) Wilkinson v. Belshev, 3 Bi-o. 272. (o) Eule 15. (p) Symonds v. Dnchess of Cumberland, 2 Cox, 411. tlie leave to amend. "When the tiial is not delayed by reason of the amendment, no other ousts shall be taxed. ■When the amondinent causes any delay, the party amending must pay the costs of such delay. (,1 R. S. 4-J, ^ 97.) In Ohio, uuless otherwise provided by statnte, the costs of amendments shall be taxed and paid, as the court, in its discretion, may direct. (Code, § .550.1 (16) A defendant must answer an amended complaint within twenty days after .service of a copy thereof, or the plaintiff, upiin filing with the clerk due proof of the service, and o( the defeiidaat's omission, may proceed to obtain judgment, as pro- vided by section 246 of the Code. But where an application to the court for judg- ment is necessary, eight days' notice thereof must be given to the defendant. (Code, § 146.) It is held, in Lovett v. Cowman, (10 Paige, 559.) that where the complainant amends his bill before the defendant has answered the original bill, a new order to answer is necessary ; and where the bill is amended after an order extending the time to answer has been made, the defendant has forty days to demur or answer after the service of a copy of the amendment upon him. (Ibid.) In California, a party has ten days after ser\'ioe of an amended pleading upon him t!i answer or demur thereto (Gal. Pr. Act, § 67.) ■When an amendment is made by leave of the court, the defendant mu-it answer in such time as may be ordered by the court; and judgment by default may be entered, upon failure to a.nswer, as in other cases. (Ed. § 43.) When a demurrer is overruled with leave to answer, though the court has power to fix the time for answering, it need not do so. If the time is not fixed, then the defendant should answer within the same time required in case of service of the original complaiut. ('i Bstee's Pr. 310; People v. Mains, 2'.i Gal. 128.) The party whose demurrer has been sustained, shall, upon service of the amended pleading, hare ten days in which to answer or demur to the amended plead- ing. (:3 Estee's Pr. 310.) In Ohio, where the plaintiff amends his complaint, the defendant has the same time to answer the amended complaiut, or demur thereto, after notice of the amuud- uient, as to the original complaint. (Code, § 134.) Xotice of tiling an amended pleading must be forthwith served upon the other party, who shall have the same time thereafter to answer or reply thereto as to an original pleading. (Id. § 135.) (17) If the plaintiff amends his complaint by adding new parties, after the defend- ant's default for want of an appearance has been entered, he thereby waives the da- fault. (Scudder v. Voorhin, 1 Barb. 55.) 439 223 PROCEEDINGS TO A DECREE. [Book I. It seems, however, that if a specific amendment were to be proposed, and it should appear evident that the case, so far as relates to the origi- nal defendants, would not be varied by it, an order to make such amend- ments would be granted without prejudice to the process. But this must be shown distinctly; otherwise the court will not interfere, {q) Upon a motion to amend without prejudice to process entered against Bome defendants for want of appearance, the master of the rolls in Ire- land said he could not allow a bill to be amended without prejudice to process, unless every party who had appeared in the cause had notice of the application, (r) On a petition to amend after answer, and exceptions submitted toby adding new charges and new parties, the order provided that such amendments should not prejudice the injunction issued, nor invalidate the order for taking the bill pro confesao against two of the defend- ants, (s) Another effect of amending a bill is, that if there are exceptions to the answer then pending, «the complainant will be considered as having waived them, {t) Where, therefore, a complainant, after taking excep- tions to the answer, is desirous of amending his bill, he should make a special motion to that effect, and obtain an order that the amendment be without prejudice to the exceptions previously taken; unless indeed [*234] *the amendment consists in merely adding a defendant, and requires no further answer ; which Lord Eldon considered an excepted 'case, (m) So the complainant cannot, in general, after he has amended his bill, take exceptions to thii answer to the original bill, without the special order of the court, (w) Although the rule is inflexible that if a complainant who has obtained an injunction for want of an answer, amends his bill, he will lose the benefit of his injunction, unless the order by which the amendment is sanctioned expressly declares that it is to be without prejudice to the (q) Id. ib. (r) Raymond V. O'Dell. 1 Hogan, 230. (s) Bcekman v. Waters, 3 John. Ch. 410. (t) De la Tovi-e v. Bernales, 4 Mad. 396. (u) De la Torre v. Bernales, 4 Mad. 396. (vj Jacob v. Hall, 12 Ves. 458. Vhen a pleading has been amended, tbe original is superseded, and the amended pleading takes its place. {Sands v. Calkins, 30 How. Pr. 2 ; Walker v. G^'anite Bank, f Ab., H". S. 406; Seneca Counti/ Sank v. Garlinglioiise, 4 How. Pr. 174; Fry v. Bennett, 3 Bosw 200 ; S. C. 5 Sandf. 54 ; 9 N. T. Leg. Obs. 330 ; Dann v. Baker, 12 How. Pr. 521 ; Burrall.y. Moore, 5 Duer, 654 ; Barber v. Reynolds, 33 Gal. 497.) The effect of amending a pleading by adding new parties, is to strike out the issue that has been joined. And it is the right of the defendant, who has already an- swered, to put in a new answer to the amended ooniplaiut. (Akin v. Albany Northern R. R. Co. 14 How. Pr. 337, 33!'; Ward v. Dexvey, 12 id. 193; Scudderv. Voorhis, 1 Barb. 56.) 440 Chap. 7.] PROCEEDINGS TO A DECREE. 224 injunction, or has been obtained upon the allowance of exceptions ; {m) yet the rule is only to be understood as applying to cases where the in- junction is a mere injunction to stay proceedings at law, and has been obtained in consequence of the defendant's default in not appearing or answering. Wliere an injunction has originally been granted upon an atftdavit of merits, an order to amend without prejudice to the injunc- tion may be obtained as a matter of course, unless the bill has been already amended; in which case the court will not make an order to sanction a re-amendment unless notice is given, and the proposed amendments stated, and unless the court is satisfied, upon affidavits, that the amendments relate to facts of which the complainant had no knowledge to enable him to bring them sooner before the court, {x) What effect the amendment of the bill would have upon a ne exeat regno, does not appear to have been decided. In Grant v. Grant, {y) however. Sir John Leach, upon a special motion being made before him for leave to amend a bill without prejudice to the ne exeat, refused to entertain the motion, although it was supported by an affidavit in which the amendments were stated, and notice had been served upon the bail as well as upon the defendant. His honor observing that he had an unqualified aversion to the writ of we exeat, but should abstain from expressing any opinion that might prejudice the question ; and that the complainants' counsel, if they were satisfied with the analogy which had been -pointed out to the practice at law, might take an order to amend without the special reservation, or might abandon their motion, but that in either case they must pay the costs. Any amendment of a bill, however trivial and unimportant, author- *izes a defendant, though not required to answer, to put in an [*235J answer making an entire new defence, and contradicting his former answer. This was held in Bolton v. Bolton, {z) in which case the court, upon this ground, refused, with costs, a motion to. take an answer to an amended bill off the file, which contradicted the original answer, and introduced no less than four new issues or defences. And a defendant may not only answer an amended bill, but he may defend himself from the effect of the amendments by demurrer or plea; as where a complainant amends his bill and states a matter which has arisen subsequent to the filing of the bill, and properly the subject of a supplemental bill or bill of revivor, (a) And it has been held that a (w) Bliss V. Bosbawen, 2 Ves. & P.. 101, 103. (X) Pi'titt V. Archer, 1 Sim. & Stu. iU. Sliarp v. Ashton, 3 Ves. & B. 144. (y) 2 Sim. 14. (z) CiteU 1 Dan. Pr. 619. (a) Mitf. 207, 290. 1 Atk. 29. 441 225 PROCEEDINGS TO A DECREE. [Book 1 defendant may demur to an amended bill, even though he has pre- viously put in a demurrer to the original bill. (5) SECTION III. DISMISSING BILL BY COMPLAIU'AH'T. If the complainant, after the putting in of the defendant's answer, conceives that he shall not be able effectually to prosecute his suit, he may apply to the court for leave to dismiss his bill ; either as against all the defendants, or against such of them as he thinks he can dispense witli, with costs. This is a motion of course. (c)(18) (b) Bancroft v. Wavdour, 2 Bro. C. C. 66. 2 Dick. 67, S. C. (c) Dixon V. Parks, 1 Ves. juu. 402. (IS) There is no provision in the Code for a dismissal of the complaint upon the application of the plaintiff'. As to dismissing complaint upon the defendants application, i&epost, p. 242. But the same result which was formerly reached by a dismissal of the complaint, by the plaintiff', may now be reached, in a proper case, by a discontinuance of the action. The right of a plaintiff' to discontinue his suit at pleasure and of course, as a general proposition, is undoubted ; but the proposition is not unqualifiedly true. It is a right to be exercised at all times by the leave and with the consent of the court. The courts have unifonuly held, for instance, that a plaintiff cannot be allowed to discon- tinue his action without the payment of costs to the defendant, except in certain cases where it has exercised the power to excuse him from the payment of such costs, which it has dcrae in many cases. {Young v. Bush, 36 How. 240.) "Where a defence of infancy is set up, the court has allowed the plaintiff to discontinue without the payment of costs, and without doubt of its powei' to do so. ( Van Bnren v. Foot, 4 "Wend. 209 ; Wellington v. Claason, 9 Ab. 175.) So when a defendant becomes in- solvent and obtains a discharge, {Collins v. Evans, 6 John. 333; Lindleij v. Hackett, 18 id. y52 ;) or when a defendant has been declared a bankrupt, {Parle v. Moore, 4 Hill, ,592; Smith v. Skinner, 1 How. Pr. 122;) also in case of a change of practice. {Sunney v. Roach, 4 Ab. 16;) or where a defendant has been joined as a party by mistalie. {Tlie Waterhury Manuf. Co. v. Krause, 1 Hilton, 560.; In these and numerous other cases, the courts have claimed and exercised the power to restrict and control the right to discontinue, and to determine the grounds upon which it should be allowed. Unless the plaintiff' has been excused, upon some ground, from the paj'- ment of costs, in such cases, it has uniformly been held that the ca.use was not and could not be discontinued until the defendant's costs were actually paid. {Young v. Bush, supra.) The right of a plaintiff' to discontinue is not absolute ; but is to be exercised under the control of the court, and equitable terms may be imposed, in proper cases. And the right to discontinue may be disallowed, in the discretion of the court, or restricted, upon equitable considerations. (Ibid.) "Where, in an action to foreclose a mortgage, the parties stipulated to have the testimony of a witness for the defendant, who was sick, taken before a referee, and when thus taken it was con- sidered to be a complete defence to the action, and the witness died before the trial, it was held that the plaintiff could be allowed to discontinue the action only on pay- ment of costs, and on serving a stipulation that the testimony of the decea.sed witness might be read and used on the trial of any subsequent action which might be brought for the ftu'eclosure of said mortgage, in the same manner and to the effect, as on a trial in this action, pui'suant to the stipulation under which the examination of such witness was taken. (Ibid.) The plantiff should not be required to prosecute a suit if he wishes to put an end to it, and to the litigation entirely. Biit where he has long litigated a question, and put the defendant to much expense and trouble, and is 443 Chap. 7.J PROCEEDINGS TO A DECREE. 225 The rule is well settled, by the Eugl'isli decisions, that the court will not, after appearance, make an orde.- to dismiss a bill, on the complain- ant's application, without costs, except upon the defendant's consent actually given in court; {d) even though the ground of the application be that, upon the hearing of the cause, the court would hare ordei'ed it to be so dismissed, and the defendant, although served with notice, does not appear to oppose the motion, (e) But a complainant, where he has been admitted to sue in forma pauperis, may move to dismiss his bill without costs, except in cases where his admission in forma pauperis has taken place subsequently to the filing of the bill. (/) So where a *defendant, by his own act, has rendered it impossible [*236J for the complainant to attain the object of his suit — e. g., by surrender- ing a lease, to obtain an assignment of which is the object of the suit, and the defendant afterwards absconds, the court will permit the bill to be dismissed without costs, {g) But not where the object of the suit is defeated by the complainant's own act or procurement. (/*) Where also an executor or administrator has commenced a wrong suit, by mistake, or has ascertained that it would be useless to proceed, in consequence of facts subsequently discovered, he will be permitted to discontinue without the payment of costs, {i) In this state it is provided by statute, that upon the complainant in a court of equity dismissing his own bill or petition, or upon the same being dismissed for want of prosecution, the complainant shall pay to the defendant his costs to be taxed; except in those cases where, ac- cording to the practice of the court, costs would not be awarded against such complainant upon a decree rendered, on hearing of the cause, {k) (d) Id. ib. Anon. id. 140. See also Lewis v. Germond, 1 Paige. 300. (e) Anon. 1 Ves. jnn. HO. Fidelle v. Evans, 1 Cox. 27. 1 Bio. [ur. 1-i. (q) Wilaon v! Wilson, 1 Jac-,. & \\ . 4.i7. (r) Uumliis V. Diltcns, 2 Cii'C. ■.':«. 1 V(«. j'lri. lilil. S. C. (8) Bathew v. Nt'etllijim, Praii. liL'y. ITiJ. Lan^tialc v Langilalc, 13 Ves. 167. 444 Chap. 7.] PJiOCBEDIi\'GS TO A DECREhJ. 227 ern case, (t) it is stated that canusel appeared, and that the court re- fused to make an order for snch dismissal, unless upon terms framed so as to protect the other complainants in the suit from injury. The mere circumstance, however, that the rights of the complainant applying to be dismissed are concurrent, with those of the complainants who remain, will not be a sufficient reason for refusing the motion; since any defect which his withdrawal may make in the record, may be supplied by mak- ing him a defendant, by amendment, {u) In the case of Langdale v. Langdale, {v) it was held that one of sev- eral complainants may have the bill dismissed as to himself, upon con- sent of the defendant, and without notice to, or consent of his co-com- plainants. It is a rule that one complainant cannot be examined as a witness for another. In order to procure his testimony, the proper course is to move for an order that his name be struck out of the bill. Bat as the defendant has a right to the responsibility of each of the complainants for costs, security for the costs up to the time of the application must be given, {w) *A complainant may move to dismiss his own \yi\\witTi costs, [*228] as a matter of course, at any time before the decree, {x) After a decree, however, the court will not suffer a complainant to dismiss his own bill unless upon consent (y) — for all parties are interested in a decree, and any party may take such steps to have the effect of it, as he may be ad- vised, {z) And it seems that, after a decree upon a creditor's Mil, the bill can- not be dismissed even by consent of all who have come in. There must be a re-hearing or appeal, {a) Though before a decree npon a credi- tor's bill is had, -such a bill may be dismissed by consent, and the money in court paid to the complainants, {h) In cases other than creditor's bills however, if, upon the hearing of the cause the court has merely directed inquiries, by a reference or is- sue, to satisfy the conscience of the court preparatory to its giving judg- ment, the complainant may, before the trial of the issue, or proceeding upon the reference, obtain an order to dismiss the bill with costs, (c) But if the issue has been tried and determined in favor of the defend- (t) Holkirk V. Holkirk, 4 Mad. 51. (u) i Dan. aiS. (V) 13 Ves. 1P7. (w) Lloyd V. JIakeam. 8 Ves. 143. (a;) Can-inpctoti v. Holly, 1 Dick. 281. (y) Gnilbert n. Hawles, 1 Ch. Oa. 40. (z) 1 Didk.'iSl. (u) Lashley v. Hofrg, U Ves. 602. (bj U oodv. Westall. 1 ITonn.!!-. M.i. See also White v. l^ord \Ve3tmeath, Beat. 174 (e) Caniiigtoii v. Holly, uld supra. Anon. II Ves. 169. 445 228 PROCEEDINGS TO A DECEEE. [Book I. ant, the complainant cannot move to dismiss, because tlie defendant may have it set down on the equity reserved, in order to obtain a for- mal dismissal of the bill, so as to enrol it as a final judgment, and there- by make it pleadable, {d) "With regard to the effect of a dismissal of the bill by the complainant, it may be stated, as a general rule, that a voluntary dismissal of a bill by the complainant, or a voluntary dismissal upon any interlocutory proceeding, will not prevent a new bill from being filed. It is not plead- able unless it is a dismissal by the court upon the hearing, (e) But a dismissal of an original bill on motion of the complainant, is a good bar to a bill of revivor and supplement, or either, founded upon it. (/) L*229] *SEOTIO]Sr IV. MOTIOlSr FOR PRODUCTION AlTD HfSPECTIOIf OF PAPERS, &C. General principles respecting.'] Previous to the final hearing of a cause, the court only orders the production of books and papers upon two principles — security pending the litigation, and discovery or in- spection for the purposes of the suit in this court. ( g) And it will not make an order which will amount to an anticipation of the final decree, by giving the complainant any other advantages from the production than those above mentioned, {h) (19) Where the answer admits that the defendant is in possession of deeds or documents, the court will, upon motion or petition founded upon the admission in the answer, and upon evidence that the complainant has (d) III. ib. (e) Branrtlyn v. Orel, 1 Atk. 671. (f) Hdwden v. IJeau<:hanip. 2 Atk. 82. (a J Wtitts V. Lawrenc-.e, 3 Paige, 159. 6 Mad. 290. (h) Id. ib. Lingen v. Simpson, 6 Mad. 290. (19) As to the production, discovery and inspection of books and papers, under the Code, see ante, p. 101, [ilO,] Kote 3. In addition to what is there said, it may be noticed that in an action to set aside a sale of partnership assets by one partner to the other, and to have the plaintiff's rights as a partner declared to be still subsisting, the plaintiff is not, before judgment, en- titled, as a partner, to a general inspection of the books of the firm. {Piatt v. Piatt, 11 Ab., ST. S. 110 ) It seems that an examination of the adverse party, and a dis- covery and inspection of his books and papers cannot be had in one proceeding ; and the provisions of section 388 of the Code, relating to the latter object, cannot be invoked to sustain an order for the former object. (Wavemeyer v. IngersoU, 12 Ab., IS. S. 301.) "Where facts and circumstances are shown which wan'ant a presumption that a book or document sought contains evidence which will tend to prove some facts which the party applying has to establish, the application for a discovery should be granted. {Union Paper Collar Co. v. Metropolitan Paper Collar Co. 3 Daly, 171.) 446 Chap. 7.] PROCEEDINGS TO A DECREE. 229 a direct and immediate interest in such deeds or documents, grant an order for their production, (t) This is a special motion, and notice must be given of it. A motion for production cannot be founded upon an affidavit that a deed is in the defendant's possession. An admission in the answer is necessary, and in order to obtain such an admission, leave to amend the bill will be given when requisite, although the cause is at issue, {h) If the answer oflfersto produce the deed or documents for the inspec- tion of the complainant, an order for their production, and giving leave to the complainant to inspect them, will be made, on reading the ad- mission and upon notice. {I) A voluntary offer of this nature by the defendant is considered as dispensing with some of those safeguards which the practice affords him. But an offer to produce a deed as the court shall direct, or if the court shall require it, is not a voluntary but a qualified offer, which ouglit not to fix the defendant. It is merely a submission to the discretion of the court, and only binds the party to produce the paper if the court shall think it necessary. And upon such a qualified offer the court will enter fully into the merits of the question as to the right of the com- plainant *to the inspection, and be satisfied that the defendant [*230] cannot be prejudiced, before it will order such production, (m) To entitle the complainant to an order for the production of docu- ments, before the hearing, or issue joined, or publication, the documents must be described in the answer or schedule with reasonable certainty so as to be considered incorporated with the answer by the reference to them. And they must be admitted by the answer to be in the defend- ant's ^ossessiOM or poioer. It must further appear that the complain- ant has an interest in the production of the papers called for. {n) A mere general reference to them, in the answer, without describing them, is not sufBcient. (o) As where the defendant " for greater certainty refers to the books of account of the said partnership, in case the same shall be ordered to be inspected by the complainants ; " or alleges cer- tain facts as appearing from the said books and accounts ; or where he speaks of books, papers, and writings of E. in Ms possession : ( p) or where an answer admits that such a deed was executed, and craves leave CiJ 2 Fowl. Ex. Pr. 46, 50. Watson v. Benwick, 4 John. Ch. 3S4. Eagfer v. Wiawall, 2 Paige, 369. 1 Jac. & W. 227. CkJ Bai-net v. Noble. 1 Jac. & Walk. 227. Erskine v. Bize, 2 Cox's Ca. 226. CIJ 2 *'ow. Ex. Pr. 54. Cm^ Atkins V. Wright, 14 Ves. 2U. Stanhope v. Roberts, 2 Atk. 213. 4 John. Ch. 385, 6. 1 I'ovvl. Pr. 46. Cnj Wat3on V. Renwiok, 4 John. Cli. Rep. 381. Gibbons v. Ogtien, Halst. Dig. 174. 1 Swanst. 7, 114. CoJ Gibbons v. Ogden, supra. (P) Watson V. Kenwick, supra. 447 230 PROCKEDIXaS TO A DECREE [Book I. to refer to it when produced, {q) So, merely stating the contents of a deed is not sufficient to entitle the complainant to an order for its pro- duction, (r) Nor is a reference to papers, in the answer, sufficient, without an admission also that they are in the custody or power of the defend- ant, (s) The rule for producing papers rests upon the principle that the papei'S are, by the reference to them in the answer, incorporated there- in and made a part of it. [t) Yet the mere circumstance of a defendant incorporating a deed in his answer, whether by referring to the schedule or otherwise, is not a ground for compelling its production, if in other respects such produc- tion would be inequitable. Thus, the court will not, upon motion, be- fore the hearing, compel an incumbrancer to produce, at the hearing, deeds which are admitted by his answer, but which are his title deeds ; even though the complainant may have an interest in them, {u) But if the defendant, in his answer, states the effect of documents admitted to be in his possession, yet for greater certainty craves leave to [*331] *refer to them when produced, the complainant is entitled to move for their production, although the answer positively states that they form part of the defendant's title, and in no way assist or make out the title of the complainant, {v) What is a sufficient possession by defendant.'] As respects the kind of possession of a document which will induce the court to order the defendant to produce it, it has been held that it must be a present pos- session; and that an admission that at a certain time past it was in the defendant's possession, was not sufficient, (iv) But it need not be an actual personal possession. Therefore where books and papers, thejoint property of the defendants and of other persons not before the court, were admitted by the answer to be in the custody of a third party as the common agent of all, an order was made upon such agent to per- mit an inspection by the complainant, against the consent of those owners who were not parties; on the principle that the court has a right to give the complainant whatever access the defendant himself would be entitled to. (.r) So, if papers belong to a defendant, they are in his possession, custody, or power, although they may be in a foreign (q) Darwin v. Clarke, 8 Ves. 158. (r) Krskine v. Bize, 2 Cox's Ca. 226. (s) Gibbons v. Ogden, supra. (t) Evans v. Kichard, 1 Swanst. 7. (u) Sparlie v. Moiitiiou. 1 Voung & Col. 103. Sampson v. Swetteiiham, 5 Mad. 19. (V) Hardiuan v. Ellames, 2 My. & Keen, 733. S. C. 5 Sim. 640. (w) Heeman v. Midland, 4 Mad. 391. (X) Walburu v. lugilby, 1 My. &, Keen, 61. Eager v. Wiawall, 2 Paige. 369. 448 Cliap. 7.] PROCEEDINGS TO A DT:cnEE. 231 country, or are coming over to this country ; and the court will order the defendan t to produce them within a reasonable time, (y) And where books, papers, or writings are in the custody or hands of the defendant's solicitor, they are considered as being m the defendant's own custody or power, and he will be bound to produce them. (2) But the court will not, in such a case, make an order upon the solicitor; for he may have alien on the papers, as against his client, (a) And where the defendant is ordered to produce papers which are in the hands of his solicitor, he must pay his bill of costs, if he cannot otherwise procure them, [b) In the case of Fencott v. Clarke, (c) a voluntary deed belonging to the defendant, which the bill impeached for fraud, and whicli was iu the custody of the defendant's solicitor, who claimed a- lien on it, was ordered to be produced for the complainant's inspection, after it had been proved by the defendant, and publication had passed. But the court * will not order a defendant to produce letters which passed [*333] between him and his solicitor, in the relation of solicitor and client, in the progress of the cause, or with reference to it, previously to its being instituted, or which contain legal advice, {d) N"or will it order the production of a correspondence between the solicitor of the defendants and a person not a party to the suit, {e) Complainants interest in documents.] With regard to the nature of the interest of the complainant in a deed or document which will en- title him to an order for its production, it is laid down as a general rule that if the applicant has what is termed a common interest in the in- strument, with the other party, he is entitled to the production. (/) And this term embraces the interests of landlord and tenant ;(^) principal and agent ; (h) copartners; {i) trasieesa.nd cestuis que trust •,{k) and tenants in common. (Z) The complainant is entitled to the prodjiction of a deed which sus- tains his title ; but he has no right to the production of a deed which is not connected with his title, and which gives title to the defend- CyJ Farqnharson v. Balfoxir, Tiir. & Russ. 130. Hornby v. Pemberton, Moselv, 57. 2 Paige, 36'J. CzJ 2 Dan. Pr. 2!>9. McCann v. Bi-eere, 1 Ho^an, 129. CaJ McCann -v. Bi-ceve, supra. But see Fiiilong v. Howard, 3 Sch. & Lef. 115. (b) Ex iiarte Shaw, Jao. 272. (c) 6 Sim. 8. (d) Garland v. Scott, 3 Sim. 396. Hnghos v. Biddiilph, 4 En35. 199. Vent v. Pacey, Id. li):i. (e) Curling v. Perring, 3 My. & Keen, 380. (f) Burton v. Neville, 2 Cox's Ca. 242. (g) Smith v. Duke of Northumberland, 1 Cox's Ca 302. Inman v. Hodgson, 1 Young & Jer. 23. (h) Gerard v. Penswick. 1 Swaiist. 5M, Earl of Salisburv v. Cec'l. 1 Cox's Ca. 377. (i) Kelly v. Ei-.kforrI, 5 Paige, 4,i8. Pickering v. Itigby, 13 Ves. 484. Mosely, 58. (k) Spai-ke v. Montriou, 1 Young & Col. 103. (I) 1 Hoff. Pr. 310. Vol. I.— 29 449 232 PROCEEDINGS TO A DECREE. [Book I. ant. (m) A mere interest in such deeds, on the part of the complain- ant, is not sufficient, (n) If, liowerer, the defendant has in his possession a deed relating to the title of both parties, production of it will be ordered, (o) So if the complainant has a direct interest in deeds in the defendant's possession and tliey do not relate solely to any separate and independent title of the defendant, they will be ordered to be produced. (/>) An heir at law is not entitled to a general inspection of deeds, &c. in the hands of a devisee ; because his title does not depend upon docu- mentary evidence. But an heir in tail is entitled to inspect all deeds creating or relating to the entail, (q) An application on behalf of a party having a vested interest in revei'- sion, remainder, or otherwise, in real property expectant on a life inter- [*233] est in *possession, for the production of the title deeds for the inspection of the remaindei-man or reversioner, to enable him to mort- gage his interest, will not be entertained by the court, (r) In a suit between partners, upon the application of either party, and in any stage of the suit, the adverse party will be compelled to deposit the partnership books and papers which are in his possession or under his control, in the hands of an officer of the court for the inspection of the party making such application, and that he may, take copies if necessary, (s) This is upon the principle that both parties have an equal righ t to the inspection of such books and papers, and an equal interest in them. Where, however, a document is not put in issue by the complainant in his bill, which is for an account of partnership dealings, but it is stated in the answer as part of the defendant's defence, and admitted to be in his possession, and is offered to be brought in, an order for its production will not be granted if no partnership property is shown in it.(0 It does not establish a sufficient interest in a title deed relating to real estate, to warrant an order for its production, that if its effect be such as is sworn to by the party claiming the estate under it, legatees will lose the benefit of legacies bequeathed to them by that party's ancestor, from whom he immediately derives title, {u) Upon a bill of discovery in aid of an action to try whether the com- fm) Tyler v. Drayton, 2 Sim. & Stii. 309. 5 Mad. 16. (n) Sparke v. Moiitrion, svpr'X. (o) Bolton V. Corporation of Liverpool. 3 Sim. 489. (p) Attorney Gen. v. Ellison, 4 Sim. 288. fq) Lady Sliaftsburv v. Arro\vsmith, 4 Ves. 66. See 3 Sim. 489. (r) Shaw v. Shaw, 12 I'l'ice. 163. (s) Kellv V. Eckfi>ni, .5 Pai.sfe. .'548. (t) Siielian v. Glvnn. 2 Moll. 387. (u) Wilson V. Furster McCle. & Young, 274. 450 Chap. 7.] PROCEEDINGS TO A hecree. 233 plainant's house was withiu the limits of a certain parish, and there- fore liable to the parochial rates, the court ordered the defendants, the parish oflicers, to produce for his inspection tlie rate books, account books, and minute books, orders and other documents Avhich related to the matter in question, and were admitted by their answer to be in their possession, {v) So where a tithe collector's books are admitted by the answer of the rector to be in his possession or power, and to relate to the matters in the bill mentioned, they will be ordered to be produced for the usual purposes ; .although the defendant states that they will not in any manner, assist or make out the complainant's case, (vo) In the case of Bolton v. Corporation of Liverpool, (x) the complain- ants filed their bill alleging that the defendants had in their custody *cases for the opinion of counsel, by which it would appear that [*334] the defendants had no right to levy the dues, and also various charters, deeds, &c. by which the truth of the statements in the bill would appear. . Tlie defendants admitted in their answer that tliey had in their custody several cases, two of which were prepared many years ago, and without reference to the existing proceedings, but whicli contained mistaken representations as to the nature of their title to the dues, and the rest of which were prepai-ed, pending, or in contemplation of the existing proceedings ; and that they also had in their custody charters, deeds, and copies of accounts from public offices, which evidenced their title to the dues. A motion by the complainants for the production of all the documents, was granted as to the two old cases only. This deci- sion was upon the ground that the papers not ordered to be produced only evidenced the title of the defendants, and not the title of the com- plainant. Otlier cases in which production will be ordered.'] It is the practice of the court to order deeds and other papers contested as false and fraudulent to be brought into court for inspection, {y) And this will be done under special circumstances, although the deed sought to be impeached is in the custody of a purchaser for a valuable considera- tion, {z) But a deed, though impeached for fraud, will not be ordered to be taken out of the defendant's hands and left in an officer's posses- sion before the hearing, except in a special case ; as where there is rea- son to suppose the deed will not be forthcoming, {a) "Where a solicitor refused to allow a deed in his possession to be prov- (V) Biin-ell V. Nicholson. 1 My. & Keen, 6S0. (w) Xewton v. Beresfovd, 1 l;oui)g, 377. (X) 3 Sim. 467. (y) Comstock v. Apthorpe, 8 Cowen, 336. Hopk. 141, S. C. Baloh v. Symes, 1 Tiir. & Ruse. 87. Fencott v. Clarke. 6 Sim, 8. (z) Kennedy v. Green. 6 Sim. fi. (a) Jieckford v. Wildman, 16 Ves. 438. 234 PROCEEDlXaS TO A DECREE. [Book I ed on behalf of the complainant, because he had a lien on it for costs due fi'om the defendant, he was ordered to produce the deed at his own expense, and to pay all the costs consequent on his refusal, {b) Under the general charge in a bill, that the defendant has divers pa- pers, writings, &c., in his possession or power, relating to the matters in the bill mentioned, the complainant is entitled to the production of cases submitted for the opinion of counsel, admitted by the answer of the defendant to be in his possession, but not to the opinions given upon those cases, (c) Though a complainant is, generally speaking, entitled [*235] *to the production and discovery of all papers relating to the matters in the bill mentioned, in the defendant's possession or power; yet it seems that he is not entitled to the production of letters stated by the answer of the defendant to have been received by him sincethe filing of the bill, in answer to inquiries made by him in respect to some of the matters in question, with a view to his proofs in the cause, nor to an)'' particulars respecting such letters, which would disclose the names of the witnesses, or the facts likely to be proved by them.(c? ) So upon a bill which sought to charge a solicitor with a fraud prac- ticed on the complainants in the course of proceedings on his client's behalf, the court refused to order the production of entries and memo- randums contained in the defendant's books, or of written communica- tions made or received by him, relating to those proceedings, and ad- mitted by the answer to be in the defendant's custody, (e) The court will not, on motion by a defendant, compel a complainant to produce documents in his possession, although the defendant swears that an inspection of them is necessary to enable him to answer the bill.(/) But if the complainant, upon request, refuses to permit the defendant to inspect such documents, ho cannot afterwards object that the answer is insufficient in not stating their contents. And where the books or documents of the complainant are material for the defend- ant's defence of the suit, the defendant must file a cross-bill against the complainant for the discovery of them.(^) Mode of inspecting documents, <£c.] Where a party establishes his right to inspect books in the adverse party's possession, it is of course to grant the order for inspection, with liberty to take copies.(A) The defendant may seal up such parts of the books, &c., as he swears do not relate to the claims of the comp]ainant.(i) (bj Brassington v. Brassington, 1 Sim. & Stii. ino. (c) Preston V. Carr, 1 Young & Jer. 176. (d ) Preston v. Cai-r, 1 Yonng & Jer. 175. (e) Greenongh v. Gaskell, 1 My. & Keen. 98. (/) Pentbld v. Xnnn, 5 Sim. iOi). Uenning v. Smith, 3 John. Oh. 409. 5 Paige. 54S. (g) Kelly v. Eokfiird, 5 Paige, ."ilS. (ft) IMdo v. Holmes. 3 IVIoU. 372. (i) Campbell v. Frencli, 2 Cox's Ca. 28B. Dias v. Merle, 2 PaigOj 591. Uer.ird v. Ponswick, 1 Wils. Ch. Kep. 222. 452 Chap. 7.] PROCEEDINGS TO A DECREE. 235 It seems to be a rule, that under an order for inspection, the examina- tion may be conduQted without the presence of the defendant or his ' solicitor. The papers must be delivered into the possession of the offi- cer of the court, to be open to the view of the complainant whenever he pleases ; and it will not be a compliance with the order, to deposit a box containing the papers, under lock, with a notice to send for the key *wlienever it is wanted.(^) In the master's ofSce, however, [*23G] when papers are produced, it is the practice to give notice of inspection to the opposite party.(Z) Where books, papers, and writings, mentioned in a schedule to the defendant's answer, are deposited by the defendant with his clerk in court for the inspection and examination of the complainant, under the usual order for that purpose, the defendant is entitled to have them restored to him as soon as such inspection and examination have taken place, and the complainant is entitled to have them retained in the custody of the clerk in court, notwithstanding it may be necessary tliat they should be produced before the master in taking the accounts directed by the decree, or in the hearing of an appeal fi'om the decree.(m) SECTION V. MOTIOK FOR THE PATMENT OE MONET IKTO COURT. In some cases, the court, upon the application of the complainant, will order money in the hands of a defendant to be paid into conrt by him,- to abide the erent of the suit. The time at which the application for this purpose is usually made, is after the defendant's answer has been put in. But it may be made at any stage of the cause, provided the conrt is satisfied that money in which the complainant has an in- terest is in the defendant's hands, who has no equitable right to it, or that it is in danger of being lost. Thus, the application for payment of money into court may be made either upon an admission in the defendant's answer, or, under special circumstances, upon affidavit before answer. Therefore, in a case of gross fraud appearing, the court, upon the affidavit of the complainant, and upon consideration of the affidavit of the defendant in answer (*) rreston v. Carr, 1 McCle. & Y. 457. (Z) Hoff. Off. of Mast. 12. (n») Small v. Atwood, 1 Young & Col. J7. 453 23G PROCEEDIiXaS TO A DECREE. [Book I. thereto, ordered money to be paid into court before answer, upon a special application of which notice was given. (?i) But the court will Jiot, in any case, order money to be paid into court before answer, where there is a probability of a balance in favor of the defendant.(o) [*237] * In tvhat cases proper.] The cases in which the application for this order is most usually made are, upon admission — in cases of executors and trustees — and vendors and purchasers. L Upon admissions.] Where the defendant's answer contains a clear admission that there is trust money in his hands, the court will always, on an interlocutory application, order it to be paid into court, {p) Formerly, in order to move for payment of money into court, upon an admission in the defendant's answer, it was thought necessary, where the defendant was an executor, to show that he had abused his trust, or that the fund was in danger from his insolvent circumstances, {q) But by the present practice, money may be ordered to be paid into court, on motion, upon the ground of admission alone, (r) These admissions may be made by the answer, or by schedules, or books containing an account of receipts and payments, and referred to, so as to be part of the answer; but not upon the affidavit of an accountant that from the schedules to the answer, and from the books of account not made pai-t of the answer, such a balance was due. The reference to books must be sufficient to make them parts of the answer or examination, (s) The motion, however, may be founded upon the schedules to an examina- tion added up under oath, where the defendant has omitted to add them up. (0 The admission may also appear from the examination of the defend- ant before the master, (m) And if after tlie defendant's examination., on interrogatories, and motion for the payment of money into court founded thereon, the complainant is permitted to file further interroga- tories, under which he extracts an admission of a further sum in the defendant's hands, it will also be ordered to be paid into court, {v) Where the defendant, who is sued as an executor, admits that he has money of the testator in his hands, he cannot protect himself from pay- ment of the amount into court, by alleging that he has lent it upon a promissory note bearing interest. (?«) For it is a well settled rule that, (n) Jervis v. VThite, 6 Ves. 737. (o) M. ib. (p) Uotliwell V. Rothwell, 2 Sim. & Stu. 217. Jervis v. White, uM supra. Clarksou v. De Peyster, Hopk. 274. 4 Sim. 35». (q) Strange v. Harris, 3 Bi-o. C C. 365. (r) Mills V. Hemson, 8 Ves. 67. (s) III. ib. (t) Qiiarrell v. Beckforil, 14 Ves. 177. (M) Irt. ib. (V) llaliih V. , 19 Ves. 116. (w) Vigniss V, BiiilielU. 3 Mad, 62. 454: Chap. 7.J PROCEEDINGS TO A DECREE. 237 howevei' wide tlie power given to executors, by the will, to lend the assets, they cannot lend upon personal security ; and if so lent, the court will, upon motion, before hearing, make them bring in the money. («) So if an executor admits a large balance of the personal estate to be *in his hands, he will be ordered to pay the whole into court, [*238] although he states an action at law is depending against him for a debt to a considerable amount, due from the testator; but with liberty, in case the complainant in the action at law should recover, to apply to the court to have a sufficient sum paid out again. And if the com- plainant in the action at law recovers, the court will order the amount to be paid out to him and not to the executor, {y) So, if an executor admit a balance due from him to tlie testator, upon an unsettled ac- count, he will be ordered to pay the amount into court, notwithstand- ing there are debts of the testator still outstanding, if the testator has been dead three years before, Avithin which time all the debts ought to have been paid. («) In general, a partner in trade admitting the receipt of money, but insisting there is a balance in his favor, will not be ordered to pay the sum in his hands into court ; but if he has received it contrary to good faith, and which he ought not to have received, he will be ordered to bring it into court, {a) But although a defendant makes an admission which would entitle the complainant to a decree, the complainant cannot, for that reason, move for paj'ment of money into court, {h) 3. In cases of executors and trustees.^ An executor admitting him- self to be a debtor to the testator at the time of his death, will be ordered to pay the debt into court, (c) So, also, where in a suit by legatees against an executor, he admits a balance due them,on his examination, the court will order him to pay it into court, before report, {d) So where the master reports a baLiuce in the hands of an executor, and the party interested calls for the investment of it pending an appeal by the executor, the court will compel the executor to bring iu the sum reported, (e) And money admitted by an executor to be in the hands of his partner, is considered in his own hands, for the purpose of beiug ordered to be paid into court. (/) As a general rule, upon a bill filed against an executor or administra- tor for a distribution of the estate of the decedent, if it appears that there is a clear balance iu his hands uninvested, beyond all just claims faj^Morissey v. Foley, 2 Mollv, 34(). (yj Yaie v. Harrison, 2 Cox, 377. (z) Mortlock V. Lciiihes 2 Mor. 4»1. (a) foster v. Ucinalil. 1 Jac. & W. 252. Ch) l'e:ic,liam v. Dun-, 6 Mail. 98. (c) Uolliweli v Itotlnvull, 2 Sim. & Stu. 218. (d) Curgevan v. raters. 3 \nst. 7.ii. (e) Caioiiuliacl v. Wilooii, 3 Moll. a2. (/J Jobiison V. Aotoii, 1 biiu. & SUi. 73. 455 238 PROCEEDINGS TO A DECREE. [Book L made by him upon the fund, such balance will be directed to be brought into court and invested pending the suit. ( (/) But the mere fact that an executor is an octogenarian, if he is in possession of his faculties iu [*239] *other respects, is not a suflBcient reason for taking the property out of his hands.(7«) Where the application is against an executor or trustee, the admis- sion is all that is required. It need not appear that the fund was in danger or insecure.(i) Where, by a marriage settlement, moneys were directed to be laid out on government or real securities, and the trustees had lent the money to the husband, on bond, they were ordered, on motion, to pay the money into court.(^) Though executors have a power of laying out money on good and sufficient security for an infant, yet, after a decree for an account, and notice to them by the procliein amy not to lend the money on mort- gage, they will be ordered to pay it into court, but not to the extent of replacing the amount by so much stock as the same would have pro- duced at the time of the investment ; {I) for after a decree an executor cannot deal with the assets, for the purpose of investment, without leave of the court.(m) 3. In cases of vendor and purchaser.] The court will also, upon mo- tion, order the purchaser of an estate, being in possession under the agreement, to pay the purchase money into court, where he has ap- proved of the title ; («) or even in a case where it appears upon the face of the abstract that the title is bad, but the purchaser has sold the es- tate to another person ; (o) or where a time is fixed for the payment of the purchase money by instalments, and the property is a coal mine, and the defendant is deriving a benefit from working it;{p) or where the purchaser exercises acts of ownership on the estate, as by cutting down timber and underwood ; {q) or where the purchaser has taken possession without the consent or privity of the vendor.(r) But if the vendor permits the purchaser to take possession before the completion of the title, without any stipulation as to the purchase money, he can- not, on motion, have the purchase money paid into court.(s) Yet the fgj Hosaok v. Rogers, 6 Paige, 415. ih) Hosack v. Rogers. 6 Paige, 415. iil Sti-aiige V. Harris. 3 Brn. C. U. 365. Blake v. Blake, 2 Sch. & Let. 26. ^k) Collis V. Collis. 2 Sim. 305. [0 Wicirlowsoa v. Duck, 2 Mer. 494. (TO) III. 4U9. (HI Walters V. Upton, Coop. 02, n. Bonthliy v. Walker, 1 Mad. 197. (01 liootli V. KetU'y. Sugd. Voiul. Ttli ed. 213. (7)1 Buck V. Lodge. 18 Ves. 4.i0. (9) Burroughs V. Oakley, 1 Mer. 5i, 376. Dixon v. Astley, 1 Mer. 133, 373. 2 id. 493. MoKiiQ T. Tlvompson, 1 Bland. l(il. (r niaekburn v. Stare, fi Mad. 69. (S) Clark v. Elliott, 1 Mad. dOB. 45 fi Chap. 7.] PROCEEDINQS TO A DECREE. 239 court will not permit a purchaser in possession with the assent of the vendor, or under an agreement, to commit acts of ownership tending to alter the nature *of the property which constitutes the se- [*240] curity of the vendor.(^) And aflBdavits have beeu allowed to be read, iinder those circumstances, to show that acts of this nature have been committed, even though the bill should contain no allegation to that effect.(M) Such affidavits may be read upon motion made after answer is put in. And slighter acts of ownership are sufficient to call for this interference of the court, where the acts were committed after the dis- covery by the purchaser of the objections to the vendor's title, than where the objections have arisen subsequently, and there is no evidence of acts committed since the discovery made.(t;) But if the possession of the purchaser is not under the contract of purchase, but prior to, and independent of it, the purchaser will not be compelled to pay his purchase money into court, particularly if there has been laches in the vendor in making out his title.(?y) 4. In other cases, and generally.^ The general rule, as to the pay- ment of money into court, is that the complainant must be solely en- titled, or have such an interest jointly with others as to entitle him, on behalf of himself and of those others, to have the fund secured. (a;) If it appears upon a masters report that the defendant is indebted, the balance thus ascertained will be directed to be paid into court, be- fore tlie hearing.(2/) But if the report is excepted to, the court will not, pending the exceptions, order the money to be paid in. Yet where it is evident that the exception is taken merely for delay, the complain- ant may apply for the immediate hearing of the exception. (2) The application for the payment of money into court, upon a master's report of the amount due, should not be made until such report has been confirmed by the court, or the exceptions thereto have been dis- posed of. Money may be ordered to be paid into court after the usual decree for an account, and before the hearing on further directions.(«) It is competent for the court, on the hearing of exceptions, at the same time it allows an exception taken by the defendant and directs the master to review his report, generally, to order the defendant to pay a *sum of money into court, if it is satisfied that ultimately [*341] that sum will be found due from the defendant.(5) («) Bi-adshaw v. Bradshaw, 2 Mer. 492. (u) Cutler V. Simons, 2 Meriv. 103. VVickham v. Bvercd, 4 Mad. 63. \v) DiNon V. AsUey, 1 Mer. 133, 135. 19 Ves. 664, S. C. (to) Freeborly v. Perry, (Ji)op. 91. I'ox v. Birch, 1 Mer. 105. (a) yieeman v. Fairlie, 3 Mer. 29. iy) GordiHi v. llothby. 3 Ves. 572. {z) Creak v. Capel. 6 Mad. 114. (o) Wood V. Downes. 1 Ves. & ii. 49. (6) Browu v. De Tastet, 4 Kuss. 126. 457 241 PROCEEDINGS TO A DECREE. [Book I. Upon moving, on the answer of the defendant, for the payment of money into court, the complainant may sliow tliat upon the case stated in tlie answer he has an interest in the sum in question, or that a larger sum is due than is admitted, though the defendant, in his answer, ex- pressly denies that the complainant has any such interest, or that such sum is due.(c) Where an executor admitted that he had received certain sums, but said he had paid money on account of the estate, without specifying the amount, he was allowed to verify the amount by affidavit, and was ordered to pay the actual balance only into oouvt.id) Although the court has no authority to make any compulsory order on any person not a party to the suit, yet it will order that a person who had received money on behalf of the complainant, previous to the suit, although not a party, may be at liberty to pay the amount into court, (e) The court will, in general, only order the principal sum due from the defendant to be paid in, and not the interest.(/) But where a de- fendant, by his answer, admits that he has received a principal sum, and interest to a greater amount, he will be ordered, on motion, to pay in the interest.(^) In what time money to he paid in.] If the court is satisfied that the order applied for ought to be made, the defendant is directed to pay the money into court on a certain day named in the order ; the practice of ordering it to be paid " forthwith " being altered.(/t) Effect of imying money into court.] It is provided by statute that the party bringing money into court, pursuant to an order thereof, shall in all cases be thereby discharged from all further liability, to the extent of the money so paid in.(t) Money, how dejiosited and invested.] All money brought into court and paid to the register or assistant register, for or by any suitor, is to be deposited in such banks as the court shall direct ; and accounts there- of are to be kept in such manner and form as the court shall direct. When such money is paid to a clerk of the court it is to be deposited in [*243] *such bank, and the accounts are to be kept in such manner and form, as the vice chancellor shall direct.(^) The chancellor may cause any monies brought into court pursuant (c) Domville v. Solly, 2 Uuss. 372. (rf) Anon. 4 Sim. ;^9. (e) Francis v. Collier. 5 Mad. la. See Johnson v. Chipnindale, 2 Sim. 65. (/) Wood V. Do«-iies. 1 Ves. & B. 49. (p) Fairly v. Freeman, cited 1 Ves. & B. 60. (ft) Higgins V. , 8 Ves. 381. (i) 2 K. S. 171, S 21, (orig. 5 21.) (i) 2 14. S. 171, }} 20, 21, (oris. 5i 17, 18.) 458 Chap. 7.] PROCEEDINGS TO A DECREE. 242 to his order, to be invested in any public stock, or to be placed at in- terest, on approved landed security, and from time to time to be trans- ferred or disposed of as he shall think proper. And the same power may be exercised by a vice chancellor, in respect to monies paid into court pursuant to any order of such vice chancellor.(?) CHAPTER, VIII. PEOCEEDIXGS ON THE PAET OF THE DEPENDANT PEE- VIOUS TO EEPLICATION. Sect. 1. MoTiOK TO Dismiss Bill. 2. Ckoss Bill. 3. Putting Complainant to his Election. SECTION I. MOTION TO dismiss BILL. The 65th rule of the court provides that if the complainant does not reply to the defendant's answer within ten days after it is deemed to be sufficient, (see Eule 50 as to the time when it is to be deemed sufficient,) he shall be precluded from replying, and the cause shall stand for hear- ing on bill and answer, and either party may notice it for hearing as soon as it is in readiness for hearing against the other defendants, if any there are. Where the complainant amends his bill, after answer, however, he cannot file a replication to the original answer, until the time for an- swering the amended bill expires ; although he waives a further answer to the amendments.(a) *By the 66th rule it is provided, that where the cause stands [*243] for hearing on bill and answer against part of the defendants, if the complainant does not use due diligence in proceeding against the other defendants, any of those who have perfected their answer may apply to dismiss the bill for want of prosecution ; and on such application further time shall not be allowed to the complainant, of course, without any excuse shown for the delay.( 20) (?) Id. J 24. [a) Eicliardaon v. Richardson, 6 Paige, 68. (20) It is provided by the Code (^^ 274,) that the court may dismiss the complaint with costs, ia favor of oue or more defeudants, in case of um'easonable neglect on the 459 243 PBOCEEDIXGS TO A DECREE. [Book I. This rale apples only to a case where there is more than one defend- ant. In case of a sole defendant, the motion is nnnecessary; as, nuder the 65th rule, he can speed the cause by noticing it for hearing himself on bill and answer, after the expiration of ten days from the time when his answer is deemed sutBcient ; unless a replication is filed within that time. Accordingly, in the case of Whitney v. The Mayor, Sc. of Nexo- Yorlc, (b) the court decided that a motion by a defendant to dismiss the bill for want of prosecution, can only be made where there are other defendants against whom the cause is not in readiness for hearing, by the neglect of the complainant to expedite the proceedings against them (bj 1 Paige, 518. part of the plaintiff to serve the summons on other defendants, or to proceed in the cause against the defendant or defendants served. And if the plaintiff does not serve a copy of the complaint, within the time re- quired, after demand made, and no order to enlarge the time has been served on the defendant's attorney, the defendant may move for an order dismissing the summons, and for judgment. (Van Saut, Eq. Pr. 147; lAUlefield v. Murin, 4 How. Pr. 306; Monell's Pr. 2d ed. 508.) If a valid summcms has been properly served, and the defendant has given notice of appearance, and an iiTegnlar complaint be subsequently served, the motion shimld not be to dismiss the suit, and for judgment, but only to set aside the complaint for the irregularity, with costs. (Yau Sant. Eq. Pr. 149.) So where the summons and complaint are served together, and the irregularity consists in the complaint only. (Ibid; Shafer v. ffumplirei/, 15 How. Pr. 564; Itidder v. Whitlock, Vi id. 208; Allen V. Allen, 14 id. 248 ; Boinqton v. Lapham, id. 360.) A failure to serve a com- plaint within the statutory time is an unreasonable neglect to proceed, within the meaning of section 274 of the Code, and a motion to dismiss the complaint may be made, though no complaint has been actually served. (Colvin v. Jiragden, 5 How. Pr. 124 ; Baker v. Curtiss, 7 id. 478 ; Skinner v. Noyes, 7 Rob. 228.) Twenty days from the time of demand h.is been held a reasonable time for the service of the com- plaint. (Ibid ; Luce v. Trempert, 6 How. Pr. 212 ; Baker v. Curtiss, 7 Id. 478 ) In a previons case, (Littlefield v. Murin, 4 How. Pr. 306,) twenty-four hom-s was con- sidered a reasonable time. Where a complaint or summons is dismissed for want of prosecution, it operates as a discontinuance, and does not prevent the plaintiff from briugiug a new ' suit. {McBrown v. Somerville, 2 Stew. 515.) A defendant should not sleep upon his right to dismiss the complaint, but should make his motion at the earliest special term or circuit after that at which it could be tried. {Hmoley v. Seymour, 8 How. Pr. 96 ; Whipple v. Williams, 4 id. 28.) Under the rule alhiwing ,-i defendant his motion to dismiss, he can have nothing but a simple dismissal of the complaint. If he requires other relief against the plain- tiff, his only remedy is to notice and bring on the cause for trial hi'm.self. {Roy v. Thompson, 8 How. Pr. 283 ; Wihrtn v. Wheeler, 6 id. 49.) Section 274 of the Code is to be considered independent of the rule providing for cases to which the rnle does n(Jt apply, viz. : cases in which there is n(» other mode of compelling the plaintiff to proceed. 'Thus, where the plaintiff dies, and the cause of action survives, and the representative in interest unreasonably neglects to be made a party, this motion may be made ; and it is no ans\rer for the "plaintiff's attorney to say that ho hopes to find a representative. {Cniwlhrd v. Whitehead, 1 Code Rep., K. S. 345. See Chapman v. Foster, 15 How. Pr. 24"l.) By the terms (if section 274 of the Code, the motion to dismiss may be made by the defendant served, in case of unreasonable neglect to serve the summons 'on other defendants. But a phiintiff may serve a copy of the proceedings in the 8 preme court, with notice of the motion. (Ibid.) Where two proceedings are earned on ill equity for the same object, the court may c impel the complainant to elect which bill he will dismiss, and need not require a plea in abatement. (Moore v. Gihba, 3 B. MMafe will stand for hearing on bill and answer. (6) (kj Hinde's Pr. 285, 6. flj Id. 287. f mj See Itule fid as to when an answer is to be deemed sufficient. tiff may, by his reply, set up a counter-claim, not inconsistent -mth his o-jinplaint to the counter-claim set up by the defeuilaut to the complaint. _ (Ibid.) Wuere the de- fendant states, in his answer, that another suit is pending for the same cause of action, the plaintiff may discontinue the former action, and set up such discontinuance in his reply. (Beals v. Cameron, 3 How. Pr. 414.) In Massachusetts, it is provided by Rule 14 of the rules for practice in chancery, that " a^ a substitue for the general replication now in use, the plaintiff shall enter in the cause, that he joins issue on the answer." In New Hampshire, it is directed by Kiile '2i of Chancery Practice, t.ha.t a replica- tion 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." In KeiitucTcy, when the answer contains new matter constituting a counter-claim or set-off, the plaintiff may reply to such new matter, denying eanh allegation contro- verted by him, or any knowledge or information thereof sufficient to form a belief, and may allege, in concise language, any new matter not inconsistent with the peti- tion, constituting a defence to the counter-claim or set-off. (Code, § 133.) In Indiana, the reply may deny one of several defences, or a part of any one de- fence, but must state to what defence, or part of a defence, it is pleaded. The matter of the reply must be a denial, or new matter not inconsistent with the complaint, and avoiding the ett'eot of the answer, (i R. S. 49, § 67; Ki Ind. 1.) It has been held that a reply ought to show facts sufficient to avoid the answer, and maintain the plaintiff's right to recover. (18 Ind. UM.) The plaintiff may set up in his reply several independent defences, and tender several issues, provided they are not incon- sistent with the complaint. The inconsistency of the reply and the complaint is the same defect known in common law pleading as a depmtnre. {Zehiior v. Beard, 8 Ind. 9a.) The reply must be in plain terms, vvithont repetition or redundancy, and is governed by the same rules of construction as the answer. (Biok. Civ. Prac. 93.) A set-off may be replied to a set-off'. (Ui Ind. 303 ) In Minnesota, a pfaintiff' may demur to one or more of several defences or counter- claims, and reply to the residue. (Civ. Code, J 75.) So in Kansas. (Code, i 111.) (fi) "When reply to be served. A reply, if ihaU tile the general replication,' and give notice thereof; or give natice of a hearing at the next term, on bill and answer." ( Rule 9 of Chancery Prai/tice.) As to the practice in Xew Hamiishire. see Rule 17, Chancery Practice, 38 N. Hamp. 608. By the 66th Eqnity Rule of th(! United States courts, whenever the answer of the defendant- shall not be excepted to, cjr shall be u.ljudged or deemed sufficient, the 476 Chap. 9.] PROCEEDINGS TO A DECREE. 251 The replication must be filed within the ten days, although the an- swer was served on an agent instead of the solicitor in person. («) If the complainant amends his bill after answer, he cannot file a replication to the original answer until the time for answering the amended bill expires, although he waives a further answer to the amendments, (o) Where an answer is allowed to be amended, the complainant has thirty days after service of a copy of the amended answer, to put in his replication, {p) A replication may be filed immediately after the answer has come in. If a replication is filed and served after the time limited by the rule, without an order having been obtained extending the time, the defend- ant's solicitor, if he wishes to take advantage of that objection, should refuse to receive it, or return it immediately. Extending time to reply. \ By the 135 th rule, further time to file a replication, not exceeding twenty days, may be granted on application, and sufficient cause shown, by affidavit, to a vice-chancellor or injunc- tion master. But no such order can be granted by an injunction mas- ter, or by a vice-chancellor out of court, after the time for replying has expired, or where the time has before been extended. The court also, upon special cause shown, may extend the time for filing a replication, {q) But it is not necessary to apply to the court itself, except in cases where the time for replying has expired, or where it has been already once extended. (7) Whenever the application is made to the court, it . must be upon notice to the defendant. It is not a matter of course for the court to permit the filing of a replication after the time limited by the ritle has expired. But the (n) Kane v. Van Vrankcn. 5 Paige, 62. (o) Richardson y. Rictiardson, 5 Paige, 58. (p) Taylor v. Bogert, id. 33. (q) Rule 12«. plaintiff must file the general replication thereto on or before the nest succeeding rule day thereafter ; and in tlie, oases where the general replication is filed, the cause ■will be deemed to all intents and piirposes, at issue, without any rejoinder or other pleading on either side. In Ohio, the reply must be filed on or before the fifth Saturday after the return day of the summons or service by publication. (Code, § 103.) "When an answer is amended, after demurrer, the plaintiff has the same time to reply thereto as to an original answer. (Id. § 135.) (7) Enlarging time for replying. The time for replying may be enlarged, upon an affidavit showing the grounds therefiu", by a judge of the court; or, if the action bo in the supreme court, by a county judge. The affidavit, or a copy thereof, must be served with a copy of the order ; or the order may be disregarded. (Code, § 405.) It has been held that the application of this section is to the powers of a judge of the court at chambers, and not to the powers of the court. {Haase v. New York Central B. K. Co. 14 How. Pr. 430 ; Traoer v. Siloeniail, 2 Code Rep. 96.) In Ohio, the court, or the judge thereof, in vacation, for good cause shown, may ex tend the time for flJiug a reply, upon such terms as may be just. (Code, § 104.) 477 25] PROCEEDINGS TO A DECREE. [Book I. court must be satisfied there is a probability that injustice will be done if the complainant is compelled to bring his cause to hearing on bill and answer. Upon such an application, if it appears that an answer was put in upon oath, denying any material allegation in the bill, the complainant must show that the bill was sworn to, or he must state in an affidavit, that he believes and expects to be able to prove that the [*2o3J allegations denied or *put in issue by the answer are true. If new matters are set up in .a sworn answer, as a defence to the suit, the complainant should state upon oath, that the matters thus set up, or some material parts thereof, are not true, or at least, that he believes them to be untruly stated, (r) If the complainant wishes to amend his bill, and an application to the court for leave to do so is necessary, he should not file a replica- tion — which is wholly inconsistent with the idea of an amendment of the bill — but should obtain an order to extend the time for filing the replication until after the decision of the court upon the application to amend, (s) Filing replication nunc pro timc.^ A replication is considered a mere formal instrument, and if the complainant has omitted to file one at the proper time, the court will allow it to be done afterwards nunc pro Umc. And where the omission arose from a mistake or inadver- tence, it has been allowed to be supplied after the cause had been set down for hearing upon bill, answer, and proofs, {t) And this has been permitted even after the cause has come on for hearing, and the reading of the proofs has been commenced, (m) The like permission has also been given after the cause has been set down for hearing on bill and answer, and a reference ordered, (v) (8) So, where there are several defendants, one of whom only has an- swered, the court, on special Cause shown, will permit a replication to his answer to be filed nunc pro tunc, after the time for replying has expired ; although the cause is not at issue as to the other defendants ; if the complainant is proceeding with due diligence, {w) (r) The Sea Ins. Co. v. Dav, 9 Paige, 247. Kane v. Van Vranken, 5 Paige, 63. (s) Vermilyea v. Oilell, 4 Paige, 1-22. (t) Scott V. Clai-kson's Ex'x, 1 Bibb, 277. Prao. Heg. 397. (u) Rodney v. Have, Mos. 291). Coop. Hq. PI. 331, 33.i. (vj Pierce v. We8t, 1 Peters' C. C. Rep. 351. Smitti v West, 3 John. Ch. Kep. 363. Scott v. Claikson's Ex'x. snpi'a. Dainaree v. DiiskiU, 3 Black. 115. Glenn 7. Hebb, 12 Gill & J. 271. Armistead v. Bozman, 1 Ireil. Ch. U7. (w) Utica Ins. Co. v. Lyncli, In Chan. June 19, 1831. (8) By the 66th Equity Rule of the United States courts, if the plaintiff omits to file a replication within the prescribed period, the defendant will be entitled to an order ot course for a dismissal of the suit; and the suit will thereupon stand dis- missed, unless the court, or a judge thereof, shall upon motion, for cause shown, allow a replication to be filed nunc pro tunc, the plaintiff submitting to speed the cause, and to such other terms as may be directed. 4=78 Chap. 9.] PROCEEDINGS TO A DECREE. 252 The general rule of the court, however, is, that unless a replication be filed, the complainant, if he brings the cause on to a hearing, must submit to take the answer as wholly true ; because the defendant has been deprived of the opportunity of proving the truth of his answer. Effect of filing.^ If tlie complainant files a replication to the answer after he is apprised of the necessity of an amendment of his bill, he precludes himself from making such amendment, (z) The filing of a replication after notice given of a motion to dismiss *the bill for want thereof, is good cause against the motion ; [*253] but it will only be allowed on payment of costs, {y) The effecb of filing a replication to a plea, as we have already seen, (2) is to admit its validity as a bar, if true. Withdrawing.'] If the necessity for an amendment arises after the filing of the replication, the complainant should make a special a])pli- cation to the court for leave to withdraw the replication, for the pur- pose of amending, (a) Upon which application he must satisfy the court, by affidavit, that the matter of the proposed amendment is ma- terial, and could not, with reasonable diligence, have sooner been intro- duced into the bill. (J) But this practice does not apply to amendments by merely adding parties, after replication, (c) If the answer of a defendant has been replied to, such defendant can- not be examined by a co-defendant, as a witness, until the replication is withdrawn, {d) (9) (10) (11) (X) Vermilyea v. Oilell, 4 Paige, 121. (y) Griswold v. Inman, Hopk. 86. Cz) Ante. p. 119 ; Hughes t. Blake, 7 Wheat. 453. • (a) 1 Dan. 646. 2 id. 38U. Coop. Eq. PI. 333. (h) Id. ib. (c) Brattle v. Waterman, 4 Sim. ]2.'5. (d) Dnugannon v. Skinner, 1 Hogan, 271. Dixon t. Parker, 2 Ves. sen. 21'J. 2 Fowl. lOO. (9) StrPPLEMENTAl REPLY. The plaintiff may be allowed, on motion, to make a supplemental reply, allegin? facts material to the case occurring since the fonner reply, or of which the plaintiff was ignorant when the former reply was made. And either paity may, by leave of the court, set np, by a supplemental pleading, the judgment or decree of any court of competent jurisdiction, rendered since the commencement of the action, deter- mining the matters in controversy in the action, or any part thereof. If such judg- ment be set up by the plaintiff, the same shall be without prejudice to any provisional remedy theretofore issued, or other proceedings had in said action, on his behalf. (Code, } 177.) A supplemental pleading is in addition to, and not a subsititute for, the original. {Dann v. Baker, 12 How. Pr. 521.) It is the proper practice to demur to a supplemental pleading, if defective. (God- dard v. Benson, 15 Ab. 191.) The supplemental pleadings allowed by section 177 must not contradict the state- ments in the iirst, but must be consistent with them. [Slauson v. Englehart, 34 Barb. 198 ; Dann v. Baker, 12 How. Pr. 521 ; Wattson v. Thibou, 17 Ab, 184.) The motion for leave to file a supplemental pleading setting up new matter, must be made on notice, or order to show cause. It cannot properly be made at the trial. (Garner v. Hannah, 6 Duer, 262.) The court may compel a party applying for leave to file a supplemental pleading, to elect to substitute it in the place of the previous 479 253 rRQCEKniNOS TO A DECREE. [Book T. one ; but anless it floes po, both remain. (Brown v. Eichardson , 4 Rob. 603 ; Bate V. Felluwes, 4 Bosw. ()H8.) An order allowing a supplemental pleading ma,}' be appealed from. (Harrington v. Slade, 22 Barb. Id sense and sound logic, lend an important aid in the investigation of truth, it has been careful to retain. {Fry v. Bennett, 5 Saudf. .54.) Certain general rules of pleading, applicable to aU the pleadings authorized therein, are established by the Code, as follows : 1 Subscription, and verificatioH.~\ Erery pleading in a court of record must be subscribed by the pai'ty, or his attorney; and when any pleading is verified, every subsequent pleading, except a demurrer, must be verified also. (Code, § 156.) Under this section it has been held that where a party, or his attorney, has omitted to subscribe a pleading, notice of the defect should be given, and the pleading promptly returned. That a denmrrer was not subscribed by the defendant or liis at- torney, will furnish no ground for olijection on appeal from an order sustaining such demurrer. {Ekle v. Bailer, ti JBosw. tiGl ; S. G. lU Ab. 287.) An agent with powei' of .attonjey, but who has not been admitted as an attorney, cannot subscribe a pleading for either part}'. ( fVeir v. Hlocmn, 3 How. Pr. 397 ; S. C. 1 Code Kep. 1U5 ; l)ixey v. Pollock, 8 Cal. 570.) J3nt the attorney or guardian who conducts a suit where aji infant is a party, may sisn the pleadings. (Sill v. Thacter, 3 How. Pr. 407 ; S C. 2 Code R. 3 ; Jnable v. AmMe, 24 How. 9-2.) And in Sub- hell V. Livingnton, (1 Code Kep. 03,) where the defendant signed the verification, that was held to be a sufficient subscription. In regard to the mode of verification, section 157 provides that " the verification must be to the efi'eot that the same is true to the knoxvledge of the person making it, except as to those matters stated on inforniatiim and belief, and us to those matters he believes it to be true, and umst be by the afhUavit of the party; or, if there be several parties united in interest, and pleading together, by one at least of such par- ties acquainted with the I'acts, if such party be within the county where the attorney resides, and capiible of making tbe affidavit. '■ The affidavit may also be made by the agent or attorney, if the action or defence be founded upon a writteu instrument for the payment of money only, and such in- strument be in the possession of the agent or attorney, or if all the material allega- tions of the pleading be within the personal knowledge of the agent or attcn-ney. " When the pleading is verided by any other person than the party, he shall set forth in the affidavit his knowledge, or the grounds of his belief on the subject, and the reasons why it is not made by the party. ''When a corporationis a party, the verification may bo made by any officer thereof ; and when the state, or auy officer thereof, in its behalf, is a party, the verification may be made by auy person acquainted with the facts. "The verification may be onittted when an admission of the truth of the allegation might subject the party to prosecution for felony. And no plea.ding can be used in a criminal prosecution against the party as proof of a fact admitted or alleged in such pleading." A verification is no part of a complaint ; and a new complaint, served after answer, which corresponds with the original, except verification, may be disregarded as not an amended complaint. (George v. McAooy, (5 How. Pr. 200; S. C. 1 Code liep., ^f. S. old.) If the answer be required to be verified by the oath of the delendaut, and an answer be ser\'ed without such verification, it may be returned, and the plaiutitt' may proceed as if no answer had been served. (Strout v. Ourran, 7 How. Pr. 3i> ) If the complaiut is not verified, or the verification is imperfect, the pleading will not be irregulai'. In either case the delendaut may answer without verification. Tne regularity of a subsequent judgment will not be att'ected by the irregularity of the verification of the complaint (Quin v. Tiltun, 2 Duer, 648; Fitcltv. JJigeluio, 6 How. Pr. 237 ; S. C. 3 Code Rep. -^Lo ; Mason v. Brown, id. 481 ; Stannard v. Mal- tice, 7 id. 4 ; Treadtvell v. Fassett, 10 id. 184 ; Lane v. Morse, 6 id. 394 ; Webb v. Clarke, 2 Sandf. 049 ; S. C. 2 Code K. 16 ; Waggoner v. Brown, 8 id. 212 ; /Strauss v. Jfarker, 9 id. 342; WiUiams v. Uiel, 11 id. 3/4; S. C. 5 Duer, 601.) When there are several defendants, each must verify his answer, notwithstanding _they have a common defence, whether it be put in unitedly or separately. If (miy 'one defendant verifies, it is good as to him, and cannot be returned. Prompt notice Vol. I.--31 481 25o PROUEEnTNGS TO A DECREE. [Book I must be given in that oaRe by the plaintiff's attorney, that he insists upon an answer. Alter having kept the answer forty days without notice, he eauuut insist on any de- lect iu the verification. (Hidl v. Ball, 14 How. Pr. 305.) A pleadin,;; cannot be retnined nineteen days, and then returned as del'ective. If returned as defective, d. tj., as not verified, the party returniiif; the paper must point out the defect. ( White V. CiimmUigs, 3 Saudf. 716; iS. 0. 1 Coiie Rep , N". S. 10;.) The term "subsequent pleading," iu section 15(i, means sul)3eqneut iu the order of pleading, or iu answer to the pleading verilied, and not subsequent iu time. {Hemp- stead V. Hempstead, 7 How. Pr. S.) An amended complaint cannot be called a sulj- sequeut pleading when spoken of with reference to a previously served answer. (Ibid.) When a oomplaiut is served without veritieatiou. and the answer, denj'ing the material allegations of the complaint, but setting up no new matter, is also served without verification, the plaiutifl' cannot subsequently, rin a belief on the part of the other defendant, and that, as to such allegations, he believes the same to be true ; " this was held to be sufficient. {Kinkaid v. Kipp, 1 Duer, 692; S. C. II N. T. Leg. Obs. 313. See, also, Patterson v. Fly, 19 Cal. 28.) In Badiuay v. Mather, (5 Sandf. 055,) it is said, by Duer, J. : "It is true that the form of the verification requires the party to swear to his belief of the matters stated in the pleading, on information and belief, and hence it is inferred that this statement 484 Chap. 9.J PROCEEDINGS TO A DECEEE. 253 must be found in the pleading ; but oven upon the supposition, ■n-liicli I am far IVoiii admitting, that this form of' the verijloaticm must ba litisrally followed, a slate- mont on belief may be i'airly construed as a statement b.y implieatiou. on information ; since, as a general rule, it is (m information that the belief must be founded." Iq Waggoner x. Brown, (8 How. Pr. 212,) it is t-aid, by Johnson, J. : " The statute (■j 157) a.s to everything material, must be strictly followed, ami parties will not be permitted to evade it, by qualifications or reservations of any kind." Verification oat of the state.] The act of 1863, eh. 24(3, § 3, provides that every per.son who, in foreign countries, is authorized by law to take and certify the ac- knowledgment and proof of deeds, shall also have power to administer oatlis and affirmations to be read in evidence and used in any of the courts of this state or otherwise. This refers to vice-consuls or commercial agents of the United States Government resident in any foreign port or country. (Ibid. § 1.) In the Citij Bank v. Lumlei/, (28 How. 401,) Brady, J. says:. "The jurat to the affidavit is in the usual form. It states that the deposition was subscribed and sworn to in the presence of the vice-consul, a.ud he so certifies, under his seal of office. It is sufficient; and so fa,r as the act of 1854 (Laws of 1854, p. 475) provides to the contrary, it must be regarded as abrogated." By the act of 18t>9, (ch. 133, ^ 1,) it is provided that in cases where, by law, the affidavit of any person residing in another state, or in any territory of the United States, is required, or maj' be received in judicial proceedings in this state, the same may be talieu and certified b^^ any officer authorized by the laws of such state or ter- ritory to administer oaths and take and certify affidavits to be used in the courts ot record in such state or territory. ($ 1.) To entitle such oath or affidavit to be read in the courts of this state, there shall be stated, in the body of such affidavit, the name, residence, age and occupation of the deponent or affiant, and there shall be at- tached to the jurat or affidavit a certificate, under the name and official seal of the clerk, register, prothouotary, or other officer authorized by the laws of such other state to make such certificate of the county in which the officer taking and certifying such oath or .affidavit resided, specifying that such officer was, at the time of taking such oath or affidavit, duly authorized to take the same, and that such clerk, register, &o., is well acquainted with the handwriting of such officer, and verily believes that the signature to such jurat or certificate is genuine, and that such oath or affidavit ■purports to be taken in all respects as required by the laws of the state or territory. And such oath or affidavit, so taken and certified, may be read in any court, or before any officer, in any suit or proceeding in this state, with like force and effect as if such oath or affidavit had been taken betlire any officer authorized by law to take affidavits in this state, to be read in courts of record. (lb. § 2.) Verification by all parties not united in interest.'] In order that a pleading may be completely verified, where more parties than one join in the prosecution or de- fence, it should be verified by all parties not united in. interest. (Gray v. Kendall, 5 Bosw. 6t)6; S. C. 10 Ab. 70.) It seems that where the affidavit is made by one of several parties united in interest, he need not swear that he is acquainted with the facts. {Southwortli v. Curtis, 6 How. Pr. 273.) In an action a,gainst husband and wife to set aside a deed to her as fra,udulent, the answer must be verified (the complaint being sworn to) by both parties. And it seems the wife should verify in all casus where she has a separate interest. {Youngs V. Seely, 12 How. Pr. 395; Uarlay v. Hitter, 18 id. 147; S. C. 9 Ab. 400.) But where the wife is jointly liable, a verification by the husband alone is sufficient. (Hartley v. James, 18 Ab. 299.) Before whom to he made.] The Revised Statutes direct that whenever any oath or affidavit is or may be required or authorized by law, in any cause, matter or proceed- ing, * * the same may be taken before a judge of any court of record, any jus- tice of the peace in towns, commissicmer of deeds, or clerk of any court of record. Affidavits to be read in the supreme court may also be taken by any commissioner appointed for that purpose by the justice of the said court. (3 &. S. 5th od. 474, § 38.) It is in-egular for a complaint to be sworn to before the plaintifi"s attorney ; but it cannot be treated as a nullity because so verified. The remedy of the defendant is by motion to set it aside. (Gilinore v. Hempstead, 4 How. Pr. 153 ; Anonymous, id. 290.) A party verifying a pleading must subscribe his name to such pleading, or to the affidavit appended. (Laimbeer v. Allen, 2 Sandf. 648; S. C. 2 Code K. 15.) ifo presumption can arise that an affidavit was made at any piirtioular place, or bo- f(n-e any particular person; and where a complaint was verified, but the affidavit did not state a venue, aud the commissioner before whom it was taken did not state hi.- 485 253 PnOCEEDINGS TO A DECREE. [Book I. rusidcnce, the yerification was held to be a nullity. (Lave y. Morse, 6 How Pr 3J4.) By the Code of Wisconsin, every pleading in a court of record must be subscribed by llifi party or his attorney, and must be tiled with the clerk of the court within the tune iixud'by lawfor serving the same; aud when any pleading is veriJied, every subsequent pleading, except a demurrer, must be verified also. (iiev. Stat, of 1858, p. T^S. § 18.) In Kentuckij, every pleading must be subscribed by the party or his attorney, and tlie petition, answer and reply, must each be verified by the aflidavit of the party, to the eflect that he believes the statements thereof to be true. Such verification shall not make other or greater proof necessary on the side of the ailverse party. The verification of any pleadiug of a corporation may be by any officer or agent ou whom the summons in an action against the corporation may be served, or by its attorney in the action. ((Jode, ^ 142.) "When the party is mentally incapable of taking an oath, or physically unable to attend before an officer to do so, his agent or attorney may make it. (See Amend, to \^ 611.) Each of several joint plaiutifts or deleudants may be required to verify their pleadiug, upon the opposite party filing an affidavit that he does not believe that those who have not verified cau truthfully do so. ( Imend. to ^ 7b0.) A party whose pleadiug is verified by an agent or attorney, may be required to verily in jierson, upon the opposite party filing an affidavit that he does not believe the party whose agent verifies can trnthfully verily the pleading himself. (Amend, to $ 61 1.) The verification by affidavit, mentioned in § 142, shall not be required to the an- swer of a guardian or committee defeniOta ; section 1 of the Code of Wisconsin ; section 116 of the Code of Koutucky, and section ^3'Z of the Code of Kansas, are the same as section 140 of the Code of Neio Yorlc. AU pleadings must be in the English language, (except that the proper and known names of process, and technical words, may be e.xi)rossed in the langna.ge commonly used,) and shall he made out on pnper or parchment, in a. fair, legible character, in ■words at length, and not a.bbreviated ; but such abbreviations as are commonly used in the English language may be used, and numbers nuiy be expressed by Arabic figures, or Roman numerals, ur the customary manner. (3 Rev. Stat. 467, ^ 18.) Any pleading exceeding two folios in length must he distinctly numbered and marked at each folio, iu the margin ; and all copies, either for the parlies or the court, must be numbered or marked in the margin so as to conform to the original draft, and to each other, and must be indorsed with the title of the cause. All the plead- ings, and copies thereof, must be fairly and legibly written; a.udif not so written and folioed and indorsed as aforesaid, the clerks shall not file the same, nor will the Cdurt hear any moticm or ai)plioation founded thereon. (Rule 26, Supreme Court.) The party upon whom a pleading is served will be deemed tO' have waived this objection unless, within twenty-four hours after the receipt thereof, he returns the pleading to the party serving the same, with a statement of the particular objection to its receipt. (Ibid.) If a pleading is correct in substance, but not in form, the remedy is by motion; not by demurrer. {Howell v. Fraser, 6 How. Fr. •i-il.) The general rule of pleading, with re.-;pect to the necessity of averring notice, is that? when the matter alleged iu the pleading is to be ccnisidered as lying more properly in the knowledge of the party pleading, than of the adverse party, notice thereof should be aveiTcd. {Cole v. Jessup, 2 Barb. :S09.) In Missouri, the pleadings iu equity are in the same form with those at law, but may be different in the contents. (6'toie v. St. Louis Circuit Court, 41 Mo. 574.) In California, the Practice Act, (J 36,) states that " tlie pleadings are the formal allegations by the parties of their respective claims and defences, for the judgment of the court." This definition, being purely statutory, is not intended to supersede the more general definition of pleadings given by the commou law; and yet, as there is but one forni of civil action, iu tbat state, the same rules govern in proceeding.-i both at law and in equity. (1 Bstee's Pr. 120 ) In Buwen v. Aubrey, (22 Cal. 569,) it was held that under the Code of Practice there was but ime system of rules re- specting pleadings, which governs all cases, both at law and in equity. The court say that "although in ccmstruuig that act, we res Ali. 40.) an allegatiou in the complaint, anticipating the defence of the statute of limitations:, in these W(n-ds — "the defendants have not re- sided, at any time within sis years before the oomiiieucement of this action, in the state of N'ew York " — wiis stridden out as irrelevant. A motion to strike (rat matter from a pleading as ii-relevaut must be made, upon notice served ivitliin tiventy days after service of the pleading. (Xeio Tori: Ice Go. v. Xorth Western Ins. Co. 12 Ab. 74; S. C. 21 How. Pr. 234.) The service of an answer, after notice of a motion to strike out irrelevant matter in the ocmiplaint, is a waiver of the motion. (Goch v. Marsh, 8 How. Pr. 439.) Astipulation extending the time for the defendant to answer, and to make such application as he shall bo advised, embraces a motion to strike out portions of the complaint as irrelevant, ; Holmes v. Holmes, 9 N". T. 525; Clark V. Crandall, iil Barb. 73 ; Garvey v. Fowler, 4 Saudf. 665.) When facts are relied on as sufficient, in law, to excuse a personal presentment and demand, they shcrald be set forth in the complaint, to enable the court to judge of the sufficiency of the excuse. (Graham v. Machado, 6 Duer, 514; Xewcomb y. Brackett, 16 Mass. 16H ; Baker v. Fuller, 21 Pick. 318.) "When perlbrinance is impracticable, such fact may be shown under an excuse for non-performance. (Wolfe Y. Howes, 24 Barb. 174, 666.) As, from sickness or death, (lb. ; Faluj v. Norili, 19 Barb. 341 ;) or by act of law, (Jones v. Judd. 4 N". T. 411 :) ox by casualty of fire. (Lordv. Wheeler, 1 Gray, 282.) If performance has been prevented, or interrupted, by act of the adverse party ; or where a wai''er thereof may be inferred, an averment of I'acts constituting the excuse is sufficient. (1 Estee's Pr. 232. See Clarke v. Crandall, 3 Barb. 612 ; S C. 27 id. 73 ; Garvey v. Fowler, 4 Sandf. 665 ; Crist V. Armour, 34 Barb. 378 ; Ilivara v. Ghio, 3 E. D. Smith, 264 ; Slmltz v. Dupuy, 3 Ab. 252 ; Little v. Mercer. 9 Mo. 216.) "\V"here the couditi(ras contained in the contract ha,Te been modified, or the plaintiflF has become excused from them, an averment of performance is not proper. The modificaticm or excuse should be stated. (Oakley v. Morton, 11 N". T. 25.) One who, under a ccmtract requiring his personal services, and providing for partial payment during the employment, and the remainder at the end of the term, performs some services, but is, before the expiration of the stipulated period, disabled, by sickness, from completing his contract, is entitled to recover, as upon a quantum meruit, for such services as he rendered, without setting up, in his complaint, the excuse for not fully performing. That is matter of reply to a defence interposing the contract. ( Wolfe v. Howes, )ll) K T. 197.) 498 Chap. 9.] PROCEEDTNGS TO A DECREE. 253 It seems that the word " iiarty," in the clause of section 162 of the Code, allowing a general statement, in the pleading, "that the partji duly performed all the con- ditions on his part," moans the person or persons by whom the conditions were to be performed ; and the pliiintifl' in the suit is not necessarily the person who is the party to the contract. Upon n, liberal construction, the statute means, that it may be stated generally that the person or persons hj whom the conditions wore to bo per- formed, hare duly performed. &o. (lloioland v.PUalen, 1 Bosw. 44.) Thus, where, in an action on a contract by which the plaintiff had bound himself to do certain (ustS; and to procure third parties to do curtain acts, the complaint alleged that the plainlitf, " and those on whose behalf the .agreement was made, have fully and faithfully per- fcu'med and fulfilled all the coven.auts and agreements in the said agreement contained, on the part of the said plaintiff and those on whose behalf the said agreement was made and entered into," this was held a sufficient allegation of performance. (Ibid.) A general allegation of performance is confined to causes of contracts on instruments valid on their face, (Spear v. Downing, 34 Barb. 543;) since, in all other oases, the facts showing a perfornnmce nmst be specifically alleged. (3atcli\. Feet, ii3 Barb. 580 ; People v. Jackson, 24 Cal. 632 ; Couch v. Ingersoll, 2 Pick. ,292 ; Kane v. Hood, 13 id. 281 ; Poinroij v. Gold, 2 Met. 500.) Performance must be averred acctn'ding to the intent of the parties. Thus, a vendor of land, who sues upon an agreement of sale, containing a covenant on his part that he " will make a deed for the property," must aver and prove not merely his readiness to " deliver a deed," but that he had a good title, free of incumbrance, which he was ready and willing to convey by a legal deed. ( Washington v. Ogden, 1 Black, 450 ; Pravett v. Vaughn, 21 Ark. 417.) A tender of performance, or a readiness and willingness to perform, is a substitute for the general allegation of performa.nco, in cases where it may be required. It may also be alleged that the plaintiff offered to perform. (I Bsteo's Pr. 234. See IFillianM V. Healy, 3 Denio, 3J3 ; Crandall v. Clarke, 7 Barb. 169 ; Clarke v. Cran- dall, 27 id. 73.) In England, a general averment of readiness and willingness is sufficient. (Hust v. Notiridge, 1 Ellis & B. 99 ; Bentleii v. Dawes, 9 Esch. 66'o.) So, also, in Ohio. (Swan on PI. 208 ; Kathan v. Lewis, 1 Handy, 242.) Where performance on the part of the plaintiff depends upira acts previously to have been done (m the part of the defendant, an avenneut of readiness and willing- ness will be sufficient. ( West v. Emmons, 5 John. 179.) Section 149 of the Code of Kentucky is substantially the same as section 162 of the Code of H'ew York (supra). And it has been held, there that an assignee of a note given for the purcha.se money of land, in his petition to enforce the vendor's lien, must allege the ability of the vendor to comply with his contract of sale. He must allege how, and to whom, the purchaser was to pay the balance of the purchase money, the amount of such balance, the terms of the agreement between vendor and vendee generally, and the character of title to be conveyed. (Beady v. Smith, cited Myers' Code, p. 407.) A party seeking to enforce a vendor's lien must allege either that the vendor has complied with his contract, or that he is able to do so. (Noe v Dougherty, ib.) Failure to allege that the plaintiff is both willing and able to convey the title, aoecn-ding to the contract of sale, is fatal to the judgment. (Steers v. Mason, ib.) It is not necessary for an inoin-porated company to allege, in a petition, that it has a legal existence, and a right to sue in its corporate capacity, by being organized in the mode prescribed by its charter. (Henderson 4" Nashville R. B. Co. v. Leavell, 16 B. Mon. 358; Henderson R. B. Co. v. Beverly, cited Myers' Code, p. 407.) Whore the terms of subscription are prescribed by a charter, it is not necessary to set them out specifically. A general averment that all the terms and conditions neces- sary to authorize a demand of payment of subscriptions is sufficient. (Ibid.) In an action on a contract for the sale and delivery of wood, to recover the price, where the last installment wa.s not to be paid until the delivery of all the wood, it is sufficient to allege, in the petition, that the plaintiff' had " performed all the conditions of the con- tract on his part to be performed," without averring, in terms, the delivery of all the wood. (Tatten v. Cooke, 2 Met. 275.) Section 82 of the Code of Minnesota, is in the same words as section 162 of the Code of JSTaw York. Section 24 of the Code of Wisconsin is the same. • In California. Nevada, Idaho, Arizona and Oregon, if the promise depended on the performance by the plaintiff' of conditio construed a^ to make valid a bad pleadhig in an action brought under tlie old practice, whiMi the deficts are deuiurred to. (ViiiuleiibiirgU v. Van Valkeiibargh, 8 Barb. 218.) The sectiou applies to the court of appeals, equally with the court of origiual jurisdictiou; and the appellate court will nut reverse a judgmeut because of defects in the pleadings which have not affected the substantial rights of the appellaut. {Johiisitii v. Rathorn, i Keyos, 126; S. C. 2 id. 476; Bank of Havana v. Magee, 20 jS^. T. 330.) Where the averment in the complaint was, that goods had been sold and delivered to the defendant, and the proof was that tliey were delivered to a third person, and for his use, it was held that this was a variance that ought to be disregarded, under sectiou 176. {Smith v. Leland, 2 Duer. 497 ; explained and distinguished iu Rogers V. Verona, 1 Bosw. 417.) In Williavis v. Sholts. (4 Sandf. 641,) eutitliag an answer " supreme court," instead of "superior court," was held to be au error which might and should be disregarded. In Davison v. Powell, (13 How. Pr. 287,) the summons stated that the complaint would be filed in the office of the clerk of the city and couuty of iS^on- York. On demand the complaint was served, which did not specify the venue. Held that the complaint might be amended, under J 176. (See also, Merrill v. arinnell, 10 How. Pr. 31.) Entitling the affidavit for an order of arrest, in a suit, (which, under the former practice, was fatal,) may now be disregarded, uuder § 176 of the Code, as not affect- ing .the substantial rights of the adverse party. (Pindar v. Black, 4 How. Pr. 95.) A judgment will not be reversed for an error that can in no respect injure the appellaut. (Burnett v. Tolles, cited 3 Bstee's Pr. 740 ; Kilbiirn v. liitchie, 2 Cal. 14.'> ; Wilkinson v. Parrott, 32 id. 102; Garwood v. Wood, 34 id. 246 ; Campbell v. Pratt, 2 Pet. 354 ; The Water Witch, 1 Black, 494.) Unless it affirmatively appear that in- justice has been done. (Broadus v. Nelson, 16 Cal. 80 ; Robinson v. Smith, 14 id. 2.">4.) Ifor will it be reversed for an error favorable to the appellant. (Eilburn v. Ritchie, 2 Cal. 145; Wilkinson v. Parrott, 32 id. 102; Garwood v. Wood, 34 id. 248.) Or for errors not affecting substantial rights. (People v. Foss, 20 Cal. 586.) Or for errors of the court which do not materially affect the merits of the case. (Clayton v. West, 2 Cal. 381 ; Carpentier v. Gardner, 29 id. 160.) Or for eiTors which do not in- jure the complaining party. (Page v. O'Neal, 12 Cal. 483 ; Hoag v. Pierce, 28 Cal. 187; Tyler V. Green, id. 403; Boyce v. California Stage Co. 2b id. 460.) Or for errors which affect only the rights of parties who have not appealed. (Speyerw Ihmels, 21 Cal. 280.) If the court refuses to allow a defendant to amend his answer, but no injury results from the refusal, the judgment will not be reversed ou that ground. (Jones v. Block, 30 Cal. 227.) Nor for defects in the complaint, whore it can be gathered therefrom, as a whole, that the plaintiff had a cause of action upon which he was entitled to judgment, however defectively the cause of acticm may have been stated. (Hallock v. Jaudin, 34 Cal. 167.) A party is not injured by au error if the error does not prevent him from making out his case. (Sebraid v. Jeffer- son G. 4- S. M. Co. 33 Cal. 290. See 3 Estee's Pr. 740.) The appellate court will not reverse au order or judgment, for immaterial errors, or for such as have not really influenced the result, to the prejudice of the appellaut. (Howland v. WiUeits, 9 N. Y. 170; Onondaga Co. Mu. Ins. Co. v. Minard, 2 id. 98; Shorter v. The People, id. 193.) As to Amendment of pleadings — See Titles "Amending Bill" — "Amendment" — " Answer" — " Complaint " &c. 507 254 PROCBEDIXGS TO A DECREE. [Book I. [*254] 'OHAPTER, X. TESTIMONY. Sect. 1. Who mat be Witnesses. I. General Incompetency. II. Incompetency in the particular suit. III. Incompetency as to particular branches of evidence. 3. Examination' of Witnesses. 1. De bene esse. 3. By an Examinee. 3. By a Vice-Ohancellor. 4. By Commissionees, upon a Commission. 5. By the Couet, at the Heaeing. 6. As TO THE CEEDIT OE WITNESSES. 3. Peooes at the Heaeing. As soon as the cause is at issue by the filing of a replication, both parties may proceed to take testimony for the purpose of establishing their respective cases. If no replication is filed, the answer is taken as true, and, therefore, the defendant needs no proof; and the complain- ant not having replied, cannot offer any. We do not intend to go into the subject of evidence, in this treatise, any further than to show who may be witnesses, and the several methods of taking their testimony in this court. SECTION I. who may be witnesses. It may be laid down as a general rule, that all persons are competent to be witnesses in equity who are capable of being witnesses in trials at law. And it is a general princi]ile, common to both courts, that all [*355] *persons are competent witnesses who are not expressly ex- cluded by the rules of law. There are tlirce general grounds of dis- qualification whicli operate as exceptions to this rule : I. General 508 Chap. 10.] PROCEEDINGS TO A DECREE. 255 incompetency; II. Incompetency in the particular suit; and III. In- competency as to particular evidence. I. General Incompetency. The grounds of disqualification under this head are, 1st. Where the Avitness labors under a defect of religious understanding. This embraces idiots and lunatics, children, &c. 2d. Where the witness refuses to take an oath, or from defect of religious belief does not acknowledge its sanction; 3d. Where his character is infamous, in consequence of a conviction of certain crimes. The grounds of incompetency we do not propose to enter into, in this place; as the rules of courts of law and of equity respecting them are the same, and those rules are well settled, and familiar to the prac- titioner. 11. Incompetency in the particular suit. That branch of incompetency which extends only to the particular suit or issue before the court, includes every class of persons disquali- fied by interest, whether directly as parties, or indirectly as being pe- cuniarily interested in some future use which may be made of tlie de- cree. Yet not only interested witnesses, but parties themselves may sometimes be examined as witnesses. We are therefore to inquire, 1st. When a party to the suit maybe examined as a witness; 2d. What persons other than parties may be so examined. 1. When a party to the suit may be examined as a witness.] At law, whenever a person tendered as a witness, has no interest in the event of the suit, he will be competent, although he is a party to the record. («) And the rule in equity is the same; since it only admits the testimony of those parties who are not interested in the event of the suit; or at least of that part of it to which the evidence they are called upon to give, applies. (S) (1) (a) 1 Phil. Ev. 51. CbJ 2 Dan. 448. McLaren v. Hopkins, 1 Paige, IS. (1) EXAMINATION OF PARTIES AS WITNESSES. 1. Bxaminatiou of a party as a witness, on the trial, or conditionally, or upon a commission. 2. Examination before trial. 3. Party, how compelled to attend. 4. Testimony of party examined may be rebutted. 5. Effect of refusal to testify. 6. Testimony of a party, when it may be rebutted by the oath of the party call- ing him. 7. "When the person for whose benefit the action is brought or defended may be examined. 8. Examination of co-plaintiff or co-defendant. 509 255 PROCEEDINGS TO A DECREE. [Book I. When a complainant may he a witness. A complainant is considered, It is provided by the Code (^ 389) tliat iio action to obtain a diiscovery under oath, in aid ul' the prosecution or del'ence of anutlier action, shiall be alloired ; nor shall any examination of a i)arty be had, ou bnlialf of the adverse party, exxept in the maimer prescribed l)y Chapter VI; the provisions of "n'hieli are as follows : 1. Examination of a party us a witness, on the trial, or conditionnll;/, or upon a commissioii.^ Section 3yO directs that a party to an action may be examined as a witness, at the instance of the adverse party, or of any (me of several adverse parties, and for that purpose may be compelled, in the same manner, and subject to the same rules of examination, as any other witness, to testify, either at the trial, or condi- tionally, or upon commission. A party to an action, within the meaning of this section, is one who is named plaintiii' or defendant, and appears cm the record as such. ( Woods v. De Figaniere, 16 Ab. 1 ; S. C. as How.Pr. 522 ; 1 Bob. 607.) Thus, where the nominal defendant was the president of an unincorporated joint stock company, and the demand in suit was against the company only, it was held that he was the party defendant, and might be required to submit to examination as such. (Ibid.) But where the de I'endant is a corporation, the plaintifl' canuot have an order for the examination of 3uch defendant, as a witness, by its officers. Sections 391 and 392 have reference to the examination of parties, and not to the examination of the agents, officers or ser- vants of parties to a suit. It was not the intention of the legislature to authorize the examination of a corporation as a witness. (Goodyear v. Fliocnix Rubber Company, 48 Barb. 522.) Sor is the president, or other officer, of a coi-poration which is a party to an action, bound to produce, on the trial, the books and papers of the ccu'poration, under a subpoena duces tecum issued by the adverse party. He has no such property in, or C(mtrol over, them as gives the right or makes it his duty, to produce them. Tlieir proper place is in the office in which the business to which they relate is trans- acted. {La Farge v. La Farge 1m. Co. 14 How. Pr. 26; S. C. 6 Duer, 680.) A joint stock company is not such a corporation, however, as to entitle its officer to refuse to produce its papers in his custody, when required by subpoena. ( Woods v. De Figaniere, 16 Ab. 159.) The testimony of parties who appear as witnesses, on the trial of a cause, must be weighed by the same rules, substantially, which apply to the testimony of other wit- ncs.ses. (Burnett v. Harris, 50 Barb. 379.) There are no exceptional rules which applj' to such a case. If there can be any difference, it is only that the testimony of parties in their own favor should be more carefully scrutinized, and cautiously re- ceived, hy junu's, than that of other witnesses. But this applies to both parties ; and ia all cases where they are witnesses, and contradict each other, the jury must neces- sarily decide between them. (Ibid.) The term " any other witness," in the last clause of section 390, must be understood to mean any other witness subject to the same disabilities, or standing in the same relation to the parties or the subject matter. It was not intended to remove existing disqualifications, or to make a person a witness because he is a party, who would otherwise be incompetent. (Rivenburgh v. Rivenburgh, 47 Barb. 419.) "When a party to a suit is called as a witness, by his adversary, and testifies to an independent matter, in his own behalf, the court and jury are not bound to believe him, and decide according to his testinumy. (Roberts v. tfce, 15 Barb. 449 ) It was the intention of the Coile, iu authorizing parties to be examined as witnesses, to confer upim the courts a wide discretion, as to the credit to be given to their testimony. (Ibid.) The rule that the execution of an instrument must be proved by the subscribing witness, if there be one living, competent to testify, and within the jurisdiction of the court, is inflexible. The oath of the grantor, mortgagor or obligor cannot be sub- stituted. (Story V. Lovett, 1 B. D. Smith, 153 ; Jones v. Underwood, 28 Barb. 481.) The testimony of the party executing the instrument cannot be received as a substi- tute for that of the subscribing witness. (Jones v. Underwood, supra.) The change in the law, which aUows parties to be witnesses, does not alter the rule, or afford any reason for dispensing with its observance. (Ibid ; King v. Smith, 21 Barb. 158.) In Giberton v. Ginochio, (1 Hilt. 218,) however, it is held that the execution of an in- strument, not under seal, may be proved by the admission of the party ; although the instrument is attested by a subscribing witness who is not called, or his absence excused: The statute allowing parties to be witnesses has not abrogated the law admitting books of account as evidence, under the rules formerly settled. (TomUnson v. Borst, 30 Barb. 42; Stroud v. Tilton. 3 Keyes, 139.) Tlie objection that the alteration of the law, admitting parties as witnesses, has rendered books of account unnecessary 510 Chap. 10.] PROCEEDINGS TO A DECREE. 255 in every case, an incompetent witness for his co-complainant, both at as evidence, even if it had tliat effect in other cases, does not apply where the other party is dead ; because in such a case the survivor cannot testify. {Clarke v. Smith, 46 liarb. :W.) By the true construction of section 390 of the Code, a party to an action may, at the instance of the adverse party, be compelled by the process of subpoena duces tecum, not only to appear at the trial and submit to a personal examination, but to produce papers and books in his possession, precisely as any other witness may be so compelled. And a witness, when properly subpoenaed, is a.s much bound to produce books and papers in his possession, as evidence, as to testify orally ; and his neglect of eitheris a contempt of court. (Bonesteel v. Lynde, 8 How. Pr. H-iS, 352 ; The People ex rel. Valiente v. JJyckman, 24 How. 222 ; Brett v. Buchnam, 32 Barb. 655.) If a wit- ness upon whom a subpoena duces tecum is served, neglects, without good excuse, to obey the subpoena, by producing upon the trial the books or papers specified in thp writ, he is liable to the aggrieved paity for all damages sustained in consequence of such neglect; although the witness, in other respects, oljeys the writ by pei-sonally appear- ing and giving evidence in the cause. {Lane v. Cole, 12 Barb. 680 ; Sasbroucic v. Baker, 10 .Tohn. 248 ; Heermans y. Williams, 11 Wend. 636.) "When a party to a suit is made a witness, by his adversary, he is as much entitled to his fees as a witness for attendance, as any other person who attends as a witness. {Hewlett V. Brown, 1 Bosw. 6.").").) 2. Examination before trial.'\ Section 391 of the Code provides that the examina- tion of a party as a witness, instead of being had at the trial, as provided in sectiou 390, may be had at any time before the trial, at the option of the party claiming it, bel'ore a judge of the court, or a county judge, on a previous notice to the party to l)e examined, and any other advei'se part}', of at least five days, unless, for good cause shown, the judge order otherwise. But the party to be examined shall not be com- pelled to attend in any other county than that of his residence, or where he may bo served with a summons for his attendance.. It has been held that the right of a party to examine the adverse party as a wit- ness, arises immediately on the commencement of the action, and may be enfm'oed before issue is joined. {3tcFiokar v. Greenleaf, 4 Kob. 657 ; S. C. 30 How. Pr. 61 ; 1 Ab., N. S. 452 ; Fullerton v. Gaylord, 7 Rob. .551 ; Duffy v. Lyirch, 36 How. Pr. 509.) The cases holding that the examination could be had only after issue joined, were all cases decided prior to the amendment of seoti(m 349 of the Code, in 1863. (Ibid.) The right to such an examination of a party, before trial or issue joined is ab- .tolute, and a refusal thereof is not in the discretion of the court. (Fullerton v. Gay- lord, supra; Cook v. Bidwell, 29 How. 483 ; S. C. 17 Ab. .300 ) The pendency of a motion to make the complaint more definite does not, of itself, prevent the plaintiff from proceeding with the eiamiuatiim of the defendant. Consequently, its decision or non-decision, or the nou-entiy of the order upon the decision, can have no effect on the plaintiff''s right to procc ed. (lb.) In all cases where a party desires to examine his adversary as a witness, under sec- tion 391, the correct practice is to prepare an affidavit, setting forth that the cause is at issue, and that the party desires to examine his adversary as to mattei-s material to the issue, and upon such an affidavit, procure an order f(n" his examiuati(m. A mere notice, served upon the party by his opponent, to attend and be examined a,s a wit- ness, or an ordinary subpoena, is not sufficient. {JSforton v. Abbott, 28 How. Pr. 388.) "When an examination of the defendant is S(mght by the plaintiff before he has served his complaint, he must set forth in his affidavit, with particularity, the facts and circumstances out of which he supposes a cause of action to have ai-isen, the re- lief which he supposes he is entitled to, the defences which he anticipates will be in- terposed, and the subjects in relation to which he desires to interrogate the defendant. {Duffy Y. Lynch, 36 How. 509.) It has been held that section 391 gives to either party to an aeticm an option to have an adverse party examined before, instead of at, the trial. It is en-cn- to deny, to the party claiming it, the right to have such an examination, on the mere ground that the party sought to be examined prefers to be examined at the trial, and offers to stipulate to then attend. {Gi-een v. Wood, 15 How. Pr. 338; S. C. 6 Ab. 277.) The fact that other suits against the party sought to be examined are pending, which ai-e brought by other plaintiffs, and depend upon the same general facts, is not such cause as will justify an order exempting a defendant from examination before trial. (Ibid.) The qualification in section 391 applies to the time, place and manner of exercising the right, and not to the right itself. {Reed v. Browu, 5 Ab. 418.) Upon an applicati(m under the above provisions of the Code, by a party, for the 511 255 rnncKKnixus to a decree. [Book I. Uiw and in equity, by reason of liis liability to the costs of the suit, and exarainatidu of tlie adverse party as a witness in the action, he must present an affi- davit stating, 1st. Tlie nature of the action and the plaintiff's demand ; 2d. If the application be made by the defendant, then the nature of his defence ; and, 3d. The name and residence of the proposed witness. (G-reciie v. Herder, 7 Kob. 455; S. C. 4 id. 655 ; 30 How. 210.) The examination of a party as a ■witness, before trial, under section 391, is in the nature of a cross-examination, and governed by similar rules. The limit of e, cross- examination is within the discretion of the judge conducting it. (Plato v. Kelly, 16 Ab. 188.) Such examination is to be conducted, in all respects, in the same manner as that (if a witness examined conditionally under Art. 2, Title 3, Chap. 7 of Part 3 of the Revised Statutes. (The People ex rel. Valiente v. Vijckman. 24 How. 2iJd.) "Where a party, who was summoned to appear for examination, under section 391, sent his attorney,' on the return day, to claim that his examination was unauthorized, held that this, if not a waiver of his right to mileage, was, at least, an admission of the sufficiency of the sum which had been paid to him ; and threw up(m him the burden of showing that proper mileage was not tendered. ( Woods v. l>e Figaiiier.e, lEob. 607; S. C. 16Ab. 1.) A party, on being subpoenaed and paid his fees as a witness, may be examined, after a notice of five days. A previous order from a judge is not necessary, unless a shorter time than five days be desirable and proper. (Taggard v. Gardner, 2 Sandf. 667, 669.) It has been held that there is no authority in the above provisions of the Code, for an order directing a party to appear before a referee, and submit to be examined be- fore him. (Draper v. Henningsen, 1 Bosw. 611.) There is no power, either in the court or a judge, to make an order requiring the witness to attend before a person not a judge, and therein constituting such person a referee, for the purpose of taking such examination. (Ibid.) It is not obvious that any order for the conditional examina- tion of a party as a witness can, properly, specify and limit the matters to which he is to be examined. He is to be examined generally, the same as any other witness, and the points to which he is to be examined are to be determined by the officer be- fore whom tlie examination is had, or at the trial, when the testimony is offered in evidence. (Ibid.) If a party, on his examination as a witness, refuses to answer a legal and pertinent question, it is the duty of the judge to issue his wan-ant for the commitment of such witness. An order merely adjudging him to be in contempt is unauthorized by law, and for that reason is not appealable. (People ex rel. Valiente v. Dyckman, 24 How. 223.) The fact that a witness, by giving testimony, may thereby render himself liable to a civil suit, will not excuse him from testifying ; nor, where the testimony is material, can he refn^e to answer, on the ground that his testimony wDl tend to disgrace him. (Taylor v. Jentiings, 7 Rob. 581.) 3. Party, how conqjelled to attend.'] Section 392 of the Code provides that the party to be examined, as directed in section 391, may be compelled to attend in the same manner as a witness who is to be examined ocmditionally ; and that the exami- nation shall be taken and filed by the judge in like manner, and may be read by either party on the trial. The Kevised Statutes prescribe the mode of taking the examination of a witness conditionally. (3 R. S. 5th ed. 673.) Section 10 (p. 675) requu'es the service of a summons upon the witness to bo examined. Sections 58, 59, 60 prescribe the man- ner in which obedience to such summons is to be enforced. (Id p. 648.) To compel the attendance of a party as a witness, a summons must be sei-ved upon him ; and the notice in writing, prescribed by section 391 of the Code, must be served upon the attorney of such party, before such party can be brought into contempt. Such notice must be served upon every adverse party. The object of such notice is, obviously, to apprise all the adverse parties that the examination is to occur, and to aflbrd them an opportunity to prepare therefor. And the summons is the process which is designed to compel the attendance of the party to be examined. ( Van Rensselaer v.'Tubbs, 31 How. 193 ; Draper v. Henningsen, 1 Bosw. 614 ; Gaughe v. Laroche, 14 How. Pr. 451 ; Bleecker v. Carroll, 2 Ab. 82.) Upon presenting a proper affidavit, the party desiring to examine an adverse party as a witness, may apply for such an order as is mentioned in secticm 3 of the statute in relation to the conditional examination of witnesses within this state, (2 R. S. 392.) and also for the summons provided for in section 10 of the same statute. (Greene v. Herder, 7 Rob. 455.) The order so obtained should be served upon the attorneys of 512 Chap. 10.] PROCEEDINGS TO A BECREE,' 256 *therefore cannot be examined ; (c) except where he is merely [*256] (c) Casey v. Beai-.liriold, 1 Eq. Ca. Abr. 325. Benson ». Chester, Jao. 677. 1 Vern. 2;i0. 1 P. Wins. 5»5. 2 Uick. 7i)y. all the parties who have appeared, or, if the time for appearauoe has not yet expired, then upiiu the adverse parties, themselves, who have not appeared; and the huiiiinous should also be served upon the proposed witness. (Ibid.) In case the proposed witness falls to appear, the party who has procured the order and sum mous may, upou a proper affidavit, obtain a warrant directing the sheriff to apprehend sueli witness and bring him before the judge ; or, at his option, he may, on a proper affidavit and notice, have au order directing the pleading of the recusant witness to bo stricken out. (Ibid.) The fees of a party for attending to be examined as a witness must be paid him: (Taggard v. Gardner, 2 Sandf. 6(i"J; S. C. 2 Code K. 82; Draper v. Semiingsett, I Bosw. 614 ) A party examines an adverse party under the above sections of the Code at his peril; and whatever evidence is taken, whether before or at the trial, without objec- tion, is competent, and maybe used, notwithstanding the restriction of section 3y9. (Barry v. Galvin, 37 How. 310.) If the examination is to be as of a witness examined conditionally, a summons must be issued, by the judge, to compel the attendance of the party to be examined ; which must be served in the manner required by the Kevised Statutes. (2 K. S. 401, ^ 54.) An order is ouly necessary to show the existence of facts giving a right so to examine, and to authenticate the proceedings. The witness does not attend in obedience to the order, but in obedience to the summons. If the examination is had before, in- stead of at, the trial, no order is necessary. A notice to the party, and that alone, is necessary to give the right to examine; and a summons is necessary to compel at- tendance, and lay the foundation for ulterior proceedings, in case of non-attendanc6 in obedience to it. (Draper v. Senniit-gsen, 1 Bosw. Hll.) 4. Testimony of party examined may be rebutted.'] The examination of the party, taken under sectiims 390 and 301 nuy be rebutted by adverse testimony. (Code, § 393.) ^VTieu a party to. a suit calls an adverse party as a witness, he thereby represents him as deserving of credit, and is precluded from denying it by introducing evidence for the purpose of impeaching him, showing either that his generiU character feu- truth is bad, or that he has made previous contradictory statements. (Pickard v. Collins, •A'-i Bai'b. 444 ; Barry v. Galoiii, 37 How. 310.) The party calling such witness may, however, by any pertinent evidence, show a fact to be otherwise than as testified to by such witness. And this may be done by proving admissions of such witness. (Ibid; Parsons v. Suydam, 3 B. D. Smith, 276; Armstrong v. Clark, 2 Code K. 143 ; Bemis v. £yle, 5 Ab., if. S. 232 ; People v. Skeehan, 49 Barb. 217.) But when a party makes himself a witness in his own behalf, his credibility is not indorsed by the opposite party, and he may be contradicted or impeached, the same as anv other witness. (Forward v. Harris, 30 Barb. 338; Varona v. Socarras, 8 Ab. 302.) Where the plaintiff and defendant, who are both men of fair character, and stand alike unimpeached, and are of equal credibility, being examined as witnesses, con- tradict each other, directly, upon a question of fact, and their testimony is totally irreconcilable, the case, in the absence of other testimonj', will stand evenly balanced, and the complaint will be dismissed. (Losee v. Morey, 57 Barb. 561. See Forward V. Harris, 30 id. 341.) But if the plahitiif is fully and circumstantially corroborated in his statement of the facts, by the written agreement of which a specific perform- ance is sought, duly executed in form, and perfect in all its parts, and by the testi- mony of the subscribing witness ; so that ij the evidence of both parties shcmld be stricken out, or disregarded, as equally balanced, the plaintiff's case would still stand well proved ; this will justify a decree in favor oi the plaintiff, if the facts thus proved be sufficient to warrant the relief asked for. (Ibid.) Where, on a questi(m of fact, the plaintiff' swears one way, and the defendant another, the jury have a light to credit the former, and not the latter ; and tlie court ought not to grant a new tiial because they have done so. But if the defendant in- troduces a letter of the plaintiff' in evidence, written before the commencement of the action, flatly contradictiug his testimony, the jury are bound to disregard his oath. (Boyd V. Colt, 20 How. Pi-T 384.) 5. Hffect of refusal to testify.;] If a party refuse to attend and testify as provided in sections 390, 391, 392 and 393, he may be punished as for a contempt, and his com- plaint, answer or reply may be stricken out. (Code, § 304.) Vol. I.— 33 513 f>gg PROCEEDINGS TO A DECREE. [Book 1 a trustee, and has no beneficial interest in the property, or by con- This section does not giye the court the power to stay the party's proceedinga in the action, where he refuses or neglects to attend for examination before trial. ( Jj)- })letoit V. Appleton, 50 Barb. 48t).) To authorize the punishment of a party for contempt, in refusing to be examined under the above sections of the Code, it need not appear that the misconduct waj calculated to, or did, defeat, impair, impede or prejudice the lights or remedies of any pai-ty as required by the lievised Statutes (-Z K. S. 536, § iJU) in ordiuaiy cases of contempt. ( Woods v. De FigunUire, 1 Kob. 607 ; S. (J. 25 How. 522 ; 16 Ab. 1.) When a party to an action is made a witness by his adversary, he is as much en titled to witness' fees, as a condition of duty on bis part to attend and be sworn, a.* any third person. {Hewlett v. Brown, 1 Bosw. 655 ; S. C. 7 Ab. 74.) A six days' notice to him to attend and be examined, and notice that if he fails to do so he will be liable as for contempt, and to have his answer stricken out, are not sufficient to authorize an order (on his failure to appear) strikiug out his answer, or to punish him for contempt ; where it appears that he has been neither sumnioued ncn- subpoeuaed to attend, and that his fees as a witness have not been paid or tendered. (Ibid.) Kight days' notice of a motion to punish the party for a contempt, under this section, or that his answer be stricken out, must be given. (Ibid.) In Bennett v. Hall, (10 JM. Y. Leg. Obs. ltd,) a motion to strike out the answer of a defendant because of his failure to attend and be examined as a witness, was de- nied, where it appeared that after he was subpoenaed, and before the time fixed for his examination, he, in pursuance of a previous arrangement, sailed for California. . A default for ncm-attendauce and submitting to au examination may be waived by the subsequent acts of the plaintiffs' attorneys, in assi-jniug days for the examination of the defendant, at their oJiice, and postponing such examination from time to time. (Satterlee v. Vu. Coiueaa, 7 Kob. otil ; Gardiner v. Jfeterson, 14 How. Pr. 513.) Where the plaintiffs' attorney agreed, by parol, that if the defendants (against whom a default had been taken) would come to his office and be examined, he would accept such attendance, and waive the default; held, that if the defendants were not in tne fault by failing to so attend and be examined, the plaintiffs could not insist on the original default. (Ibid.) Where it appeai'ed that ou the last occasion when a time wad dxed for the examination of the defendants, one of them attended, but the plain- tiffs' attorney being unable to go on with the examination, it was postponed as to both defendants, no day being iixed at which it should take place; but the plaintiffs' attorney was to give a reasonable notice when he should require the defendants' at- tendance; and lu) such notice was given; it was held that the defendants were not in fault in failing to attend. (Ibid.) It has been already stated that the examination of a party as a witness, under the provisions of the Code, is to be conducted in the same manner as that of a witness examined conditionally under the Kevised Statutes. Those statutes provide that if any witness attending before a judge, pursuant to a summons, shall, without reason- able cause, refuse to answer any legal or pertinent question, " the odicer issuing such summons shall, by warrant, commit such witness to the common jail of the county," there to remain until he submits to answer, or until he be discharged according to law. (3 K. S. 5th ed. p. 6cl4, ^ 61.) It hfw been held that the power of the judge, under this statute, to compel a witness to answer, and to commit him if he refuses, is ample and free from doubt. {People ex rel. Valiente v. Dijckinan, 24 How. 222.) If the witness refuses to answer a legal and pertinent questitate of the intestate, a claim of the respondent, against the estate, which waa disputed by the administrator, was tried by the surrogate, and after se-ioral witnesses had testified to ccmversations between the intestate and the claim- .■nt. which established a "transaction" between them, in relation to the subject iMiitter of the controversy, it wajs held that the claimant could not be examined as a witness to prove that no such conversation had occurred — tliat no such transaction l;.ul taken place — such testimony being "in respect to a transaction had personally between the deceased person and the witness." (Dyer v. Vi/er, 48 Barb. 190.) In an action against a husband, after his wife's death, to recover money deposited in a Savings Bank, and the value of promissory notes, claimed to have been owned by the "^vife, in her lifetime, and to have been given by her to the plaintiff, in anticipa- tion of death, proof of the declarations of the wife are not competent evidence against the defendant, to show tliat she was the owner of the demands ; where the answer denies that the wife ever was the owner of the property, and claims that it at all times belonged to the defendant in his own right ; and where he had the actual con- trol and possession of it, at the time. (Dewei/ v. Goodenough, 5B Barb. ri4.) Under § 399 of the Code, the plaintiff in such an action cannot be allowed to testify as to all the circumstances of the transacticm going to show property in the deceased, and a gift thereof to the plaintiff. The husband is included in the words "next of kin" of his deoeasted wife, as they are used in that section ; he having the right to administer her estate, and to collect the debts due to her; and her personal estate belonging to him, subject only to the payment of her debts. (Ibid.) A legatee is not within the meaning of the words "au assignee or executor or administrator," as used in section 399. Hence an assignor is not excluded from testi- fying against a "legatee" when suit is brought to recover from such legatee the amount of a judgment against the testator. (Hight v. Saclcett, 34 N. T. 447.) Where promissory notes, payable to aforeign executor, as such, are endorsed by him 9.S executor, to himself in his individual capacitJ^ and he sues thereon in his own name, he is not to be deemed the representative of a deceased person, acora'ding to the laws of Xew York, so as to exclude the defimdant from being a witness in his own favor. He cannot sue here, in a representative capacity, and can only be regarded as an indorsee of the notes. {Huckiiujliam v. Andrews, 34 Barb. 434 ; S. 0. 12 Ab. 322.) The amendment of section 399 of tho Oode making it applicable to sun'ogates' courts and the proceedings therein, not only applied the provision allowing the exami- nation of a married woman as a witness iu her own behalf, on her application to the surrogate for lettei's of administration upon the estate of her deceased husband, but also the restriction on such examination ; so that if she comes within that restriction, she cannot be examined iu her own behalf, against administrators, to prove any transaction had with the decedent. (Aitgevine v. Aiigevine, 48 Barb. 417.) The Code has not changed the common law rale that prohibits a wife from testify- ing, after the decease of her husband, to declarations made by him to her when no other person was present. Hence, a wife suing for a dower in the land of her deceased husband, cannot be allowed to testify to what her husband said to her, in his lifetime, while they were alone, tending to show that a deed executed by him, under which the defendant claimed, was not delivered to the gi'antee until after he, the grantor, was married to the plaintiff. {Keator v. Dimmick, 46 Barb. 158.) In such au action it is competent for the defendant to prove the declarations of the grantor, made after his man-iage to the plaintiff, to the effect that such deed was delivered befcu'e he mai-ried the plaintiff. (Ibid.) A payee of a negotiable promissory note, who has transferred the same, by delivery, to another person, is a competent witness for the latter, in an action brought by him upon the note ; and the fact of his being examined as a witness for the plaintiff will not warrant the admission of the defendant to testify in his own behalf. {Calkins v. I'acker, 21 Barb. 275; Ciillins v. Knapp, 18 id. 532; Hicks v. THrth, 10 How. Pr. 555 ; Gohle v. Kiimeij, 11 id. 248 ; Bartiett v. Tarhox, 1 Keyes, 495.) Section 399 of the Code was not intended to allow a party to an action to become a witness in his own behalf, excepting for the purpose of meeting the evidence of one who is not a competent witness, at common law, but is made such by virtue of the same and other bcctions of the Code. (Ibid.) Where a legatee takes fnmi the executors, as a portion of his legacy, a bond and mortgage owned bj' the testator, and held in trust by the executors, the mortgagor is a competent witness in his own behalf, in an action to foreclose the mortgage, to prove a p.iyment on the bond and mortgage, to the testator, in his lifetime. ( Wildey V. Whitney, 25 How. 75; Schenck v. Warner, 37 Barb. 258.) Under section 399, a plaintiff, in an action against an executrix cannot be allowed .to testify as to notes made by the deceased to the order of, and endorsed by the 516 Cliap. 10.] PROCEEDINGS TO A DECREE. 256 sent, {d) (3) Upon the same principle a procheiii amy suing for an in- fant, is considered as so far interested in the event of the suit, that neither he or his wife can be a witness for the complainant, (e) If their ex- amination is necessary for the purposes of justice, his name must be struck out of the bill, and that of another person substituted; which, upon application to the court, will be permitted, on security being given for the costs already incurred. (/) The rule whicli prohibits a complainant from being examined as a witness, on behalf of his co-complainant, operates as long as the com- plainant's name continues on the record. Therefore, it was held, that a complainant who had become a bankrupt, could not be a witness on be- (d) Fereday v. Wightwick. 4 Ilnss. 114. (e) Head V. Head, 3 Atk. 511. Mkf. '27. 12 Ves. 493. (f) Strange, 70!i. Uaveupurt v. Daveiipurt, i Sun. & Stn. 101. Helms v. Franciscus, 2 Bland. 544. plaintiff, and which were transactions had personally between them. In such a case, the test of the admissibility of the testimony is, does it tend to prove what the trans- action was ? (Strong v. Dean, 5.5 Barb. :i:J7.) The plaiatiff, in a suit in equity brought to estahlish a lost or destroyed will, against the administrators and next of kin of tlie testator, is not a competent witness iu his own behalf, to prove oouversations had between himself and the deceased, at thb time of maliiug the will and before, on the subject of the will. (Timon v. Claffij, 45 Barb. 43d ; S. 0. 41 ^. Y. 619, u.) A plaintiff, iu an action against executors, is a competent witness to prove the con- tents of a lost letter. Section 399 of the Code was intended to provide for the case of personal intercourse, conversations or communications had personally with the deceased, and is not applicable to testimonj- resting in papers or documents of any description. {iVilliston v. Willistoii, 41 Barb. 635.) Nor was it the design of that section to exclude the testimony of a party to an occurrence at which the deceased (although interested in it,) need not have been present ; or a fact which he need not, necessarily, have known. {Franklin v. I'inhney, 'i Rob. 429; S. 0. Iri Ah. 186.) In an action against heirs at law and administrators, to compel the specific perform- ance of an alleged agreement by the decea.sed to convey land to the plaintiff, the plaintiff is entitled to be sworn as a witness on his own behalf, although he is not competent to testify to transactions had with the, deceased personally. {Card v. Card, 39 if. T. 317') Non constat that he could not have given testimony to facts other than transactions had with the deceased personally, wbich, as against the heirs at law, would have tended to prove the exii^teuce and binding force of the contract alleged. (Ibid.) Where a defendant makes himself a witness, in his own behalf, under section 399 of the Code, his credibility is not certified by the plaiutiflj but is to be weighed in the same manner, and his testimony submitted to the same tests as that of other witr nesses. (Forward v. Harris, 30 Barb. 338.) (2) A party may be examined on behalf of his co-plaintiff, or of a co-defendant, as to any matter in which he is not jointly interested or liable with such co-plaiutitf or co-defendant, and as to which a separate and not joint verdict or judgment can be rendered. And he may be compelled to attend, in the same manner asat the iustancp of an adverse, pai'ty ; but the examination thus taken shall not be used in tlie behalf of the party examined. And whenever, in the case mentioned in sections 390 and 391, one of several plaintiifis or defendants, who are joint ooatraotors, or are united in interest, is examined by the adverse pai-ty, the other of such plaintifls or defendants may offer himself as a witness to the same cause of action or defence, and shall be so received. (Code, § 397.) This section of the Code, was substantially abrogated in 1857, when, by an amend- ment, parties were admitted, as wituesses in their own behalf, subject to certain limi- tations of notice; and it was wholly abrogated when, in 18B0, these limitations of notice were removed. Since then it has had no force or application, iu any possible case. (Card v. Card, 39 JST. Y. 321, 322; S. C. 7 Trans. App. 144.) 517 256 PROCEEDINGS TO A DECREE, [Book I. Imlf of liis assignees who had filed a supplemental bill ; although he had obtained his certificate, and had released ; because he was still liable to the costs of the original bill, {g) If, therefore, a complainant is desirous of having the evidence of his co-complainant at the hearing of the cause, he must (unless the defend- ant will consent to his being examined,) move for leave to strike out his name as co-complainant, and to make him a defendant, by amend- ment. This will be permitted, even without the consent of the defend- ant, upon security being given for the costs already incurred, (li) A complainant, however, cannot obtain leave to examine either a co- complainant or aprochein amy as a witness, merely on giving security for costs, without either changing the character in which he appears upon the record, or striking him out altogether, (i) But it seems that a guardian ad litem is a competent witness; he be- ing at most liable only for costs, and that not of course, but in the dis- cretion of the court, according to the circumstances. (Jc) Although a complainant in a cause cannot be a witness for his co- complainant, yet he may, with his own consent, be examined by a dcr fendant as to points in which he is not interested, (l) The consent of [*257] *the complainant, however, to be examined, is absolutely necessary, (w) Yet this rule does not extend to & procliein amy ; who may be examined by a defendant without his consent, [n) And the rule that a complainant cannot be examined by a defendant Avithout his consent, was, under special circumstances, departed from in Hougliam v. Sandys, (o) where the court gave permission to the de- fendants to examine one of the complainants as a witness, upon the certificate of the master that the examination would be necessary for the better prosecuting the inquiries. The complainants in that case, however, were mere trustees of a Sum of money, and had filed the bill to ascertain the rights of the defendants in the same. And there being no doubt about the liability of the complainants to pay the money, which was admitted, and the costs of the suit being payable out of the fund, the reasons which ordinarily prevent the examination of a com- plainant as a witness did not exist in that case. When a defendant may be a witness.] Where a party wishes to ex- amine a defendant as a witness against a co-defendant, or against the (gj Hewalson v. Tookey, 2 Dick. 700. (hj Mcitteux V. iMiicUiutli, 1 \es. jiui. Ui. 2 Cox, 303. Llojd v. llakeaiii, 8 Ves. U5. (ij Jieiison v. Cliester, Jac. 577. (kj hiiptun V. i^uplon, 2 Jtjlm. Ch. llei>. 6'i5. (I) Walker v. Wingliuld. J5 \Ba. 17S. Ariuitei- v. Swanton, 1 AmU. 393. 1 P. Wms. 595. (mj Ilewatson v. Tookey, 2 Dick. 799. (iij Bill! V. Owen, Mos. 312. CoJ 2 Sim. & slu. 221. 518 Chap. 10.] PROCEEDINGS TO A DECREE. 257 complainant, he may, at any time within twenty days after he has re- ceived or served a notice of the rule to produce witnesses, on filing an affidavit that such defendant is a material witness, and is not interested in the matter to which he is to be examined, have an order of course for the examination of such defendant, as a witness, as to any matter in which he is not interested ; subject to all just exceptions, {p) And such defendant may thereupon be examined to such matters, in the same manner as other witnesses. But the adverse party may, at the hearing, object to the competency of his testimony, {q) And if he is interested in the matters to which he is examined, the objection may be taken at the hearing, although it has not before been made, (r) 1. On the part of the complainant. A complainant cannot examine a sole defendant as a witness against himself, (s) If a defendant is examined as a witness, by the complainant, no de- cree can be taken against him personally, except upon matters wholly distinct from those to which he has been examined, {t) But this rule does not apply to the case of a mere formal defendant, as an executor or *trustee, against whom no personal decree is sought, and who [*258J has no personal interest in the question as to which he is examined as a witness against his co-defendants, who, by his answer, admits his own liability, or who suffers the bill to be taken as confessed against him. [u) It should be observed, however, there is a material difference between a mere trustee and an executor or administrator. A mere trustee may be a good witness for his cestui que tnist, but an executor or adminis- trator cannot be a witness to increase the assets, although he has no personal interest in them ; because he is answerable for a devastavit, and liable to be sued by the creditors and to answer the costs, (v) This, however, is not the case with an administrator durante ininore mtate, after his administration is determined ; for as he is not liable to be called to an account by any person but the executor, he may be examined as a witness, on behalf of the executor, against a third person, {w) A defendant also, as to whom a decree cannot be opened, is a compe- tent witness for a co-defendant who applies for leave to file a bill of TOview. {x) If the complainant examines a defendant who is primarily liable for (pj Rule 73. (q) lb. id. (r) Mohawk Bank v. Atwater, 2 P.niKe, 51. (s) Piilmer v. Van Doi-en, 2Efl\v. 102. (t) Bi-.adley v. lioot, 5 Paige, S3i. Lijigan v. Honilerson, 1 Bland. 26S. ] Cox. 344. 1 Ves. (un. 416. (u) III. ib. Mann v. Ward. 2 Atk. 228. (V) Id. ib. Ciofl; v. Pvke, 3 P. VVnia. 181. Mabank v. Jletcalf, 3 Atk. 95. Id. 603. Ifi. ib. Croft v. Fyke, i P. Wms. 181. i Atk. 95, 603. (s) Nightingale v. Doild. Amb. 83. Mos. 228, S. C. (t) Mnvrav v. Shartwell. 2 Ves. & B. 405. (V,) Bi-idgnian v. (ji-een. 2 Ves. 628. (V) Goss V. Tiaoey, 1 P. Wms. 283. Haws v. Hand, 2 Atk. 615. 2 Ves. 43. (w) Cope V. Pariy, 2 Jac. & W. 638. Bradley v. Root, 5 Paige, 632. 523 Chap. 10.] PROCEEDI]>rGS TO A DECREE. 261 been examined de bene esse, afterwards became interested and was made a party, his deposition de heiie esse was allowed to be read at the hear- ing, {x) K both parties examine a witness without an order, neither can after- wards object to the evidence; as each, by examining him, has allowed him to be a good witness. («/) *When a party is examined as a witness, he is to be cross- [*363] examined, and re-examined, in the same manner as ordinary witnesses.(2) And a cross-examination by the party against whom he is produced, will not amount to a waiver of the objection to his competency, {a) If a party sought to be examined as a witness is interested, his inter- est may be divested by a release; but the release must be executed pre- vious to his examination. (5) Where a defendant has been examined as a witness for the complainant, and on the hearing was found to be interested and his testimony rejected, an application for a re-hearing with a view to release the witnessand re-examine him, was refused, (c) A certified copy of the order for the examination of a party as a wit- ness, must be taken, for the purpose of being produced before the ex- aminer, as his authority for taking the examination, {d) (3) 2. WJiat persons, other than parties, may be witnesses.] The incom- petency of witnesses, from interest in the subject matter of the suit, is not confined to persons who are parties to the record. An individual (x) Brown v. Greenly, 2 Dick. 504. (y) Prac. Reg. 419. Sharp v. liiink, Halst. Dig. 173. \z) Benson v. Le lioy, 1 Paige, 1'22. (a) Moorehoase v. De Passuw, 19 Ves. 435. Coop. 300, S. U. (6) Anon, 'i Atk. 15. (CI Unnham v. Winans, 2 Paige, 24. (d) Hinde's Pr. 266, .ioT. Miil\ any v. Dillon, 1 Ball & B. 409. (3) Section 399 of the Code directs that no party to an action or proceeding, nor any person interested in the event thereof, nor any person from, through or under whom any such party or interested person derives any interest or title, by assignment or otherwise, shall he examined as a witness in regard to any personal transaction or communication between such witness and a person at the time of such examination deceased, insane or lunatic, against the executor, administrat'ir, heir at law, next of kin, a-ssignee. legatee, devisee or survivor of such deceased person, or the assignee or committee of such insane person or lunatic. But this prohibition shall not extend to any transaction or communication as to which any such executor, administrator, heir at law, next of kin, assignee, legatee, devisee, survivor or committee shall be examined on his own behalf, or as to which the testimony of such deceased person or lunatic shall he given in evidence. It has been held that in an actitra against a municipal corpin-ation, one of the cor- porators is not a party, within the meaning of the above section, so as to be excluded as a witness, {tack v. The Mayor, ^c, of New York, 3 N^. Y. 489.) That section should not be so ccmstrued as to include any one who is not, by name, a party to the action. (Ibid.) In an action against a city corporation, one of the aldermen is a competent witness for the defendants, both at common law and under the Code. (Ibid.) 533 "262 PROCEEDIJKGS TO A DECREE. [Book 1. is equally incompetent to be a witness, if he is interested in the result of the case, whether he be a party or not. (e) (4) Wliat sort of interest toi.ll exclude.] The interest which will exclude a witness from being sworn must be a direct interest in the event of the suit. (/) If the only interest a witness has in the cause in which he is sworn is in the question, the objection goes to his credibility, and not to his competency, {g) Cases may occur in which a direct interest in the event of the suit may belong to a person who is not a party, and which will disqualify him from giving evidence. Thus a residuary legatee or next of kin is incompetent as a Avitness in a suit by or against an executor or ad- ministrator, where the effect of his evidence would be to increase the fund. And upon the same principle, a bankrupt, or a pei'son who has taken the benefit of the insolvent debtor's act, or a creditor of a bank- rupt or insolvent debtor, is an incompetent witness in a suit for his assignees. (7t) So a remainderman is incompetent to prove payment of a legacy charged on the estate, {i) Neither can a co-partner give evidence for (e) 2 Dan. 447. (/) McL.iren v. Hopkins, 1 Paige, 18. (o) Icl. ib. (ft) 2 Dan. 461. 1 Phil. Ev. 4(i. Austin v. Hrailk^y, 2Da.v, 468. 1 Eose, 3S7. 2 Ves. & B. 17". (»') Aldridge v. Loi-d Wallscourt. 1 Ball & Beat. 312. (4) No WITNESS TO BE EXCLUDED BY REASON OF INTEREST. Section 398 of the Code provides that no person ottered as a witness in any action or proceeding in any court, or before any ofiicer acting judicially, shall be excluded by reason of his interest in the event of the action or proceeding, or because he is a party thereto, except as is provided in section 399. And it is declared that nothing contained in section 8 of the Code shall be held or construed to affect or limit the operation of sections 398 and 399. By a statute passed in 18139, it is enacted that in the trial of all indictments, com- plaints and other proceedings against persons charged with the commission of crimes or offences, and in all proceedings in the nature of criminal proceedings, in any and all courts, and before any and all officers and persons acting judicially, the person so charged shall, at his own request, but not otherwise, be deemed a competent wit- ness ; but the neglect or refusal of any such person to testify shall not create any presumption against him. (Laws of 1859, ch. 678.) This, doubtless, embraces proceedings as for contempts. It therefore seems proper to refer to the statute, in this place. In suits by or against an aggregate om-poration, the admissiou of any member thereof, not named on the record as a party to such suit, shall not be received as evi- dence against such corporation, unless such adnii.ssicm was made concerning some transaction in which sucli uiembor wa-i the authoriiied agent of such corporation. (3 K. S. 692, 5th ed. J ll'i.) Any member of a c(n-poriition aggregate, not named on tbe record as a party to asuit bnmght by or against such ccn'poration, shall be received as a competent witness to testil\' to any matter against the interest of such copora- lion. (lb. § 113.) A corporation is a living perscm, within the meaning of section 398 of the Code ; ■and where an action is conunenced eithi'r by, or against a corporation, of any kind, a party may be examined in his uwn behalf. (Ln Furgc v. Kxohuntje Fire Ins. Co. 22 N. Y. 352 ; S. C. 3 Bosw. 157 ; Field v. X. Y. Central It. li. Go. 29 Barb. 176 ; S. C. 28 How. 583, u. ; Jolnison v. Mcintosh. 31 Barb. 2li7 ; ]\'nllace v. Maxtor, if-c, of New York, 2 Hilt. 440 ; S. C. 9 Ab. 40 ; 18 How. I'r. 169; iVoods y. De Figaniere, 1 EoU 607; S. C. 16 Ab. 1; 25 How. 522.) 624'. dial-). 10.] PKQCEEniNGS TO ADECREE. 263 a *defeuclant who is sued alone for a partnership debt, [k) It is [*263] not trne, as a uniform rule, that a creditor is a competent witness for ud- miuistrators. He is only so where the assets are sufficient for the pay- ment of debts. When they are not, whether the administrator be com- plainant or defendant, if the verdict swells the fund to which he must look for the payment of his debts, his incompetency is manifest. He is only competent when the verdict cannot aifect his interest. {I) So in an action upon an administration bond, against a surety, the administrator is not a competent witness for the defendant ; on account of his liability for costs in case of a recovery against the defendant, {ni) And a member of a corporation is not a competent witness to sustain a claim of the corporation; even though he release his interest in the subject matter of the suit; and this is upon the principle that he is a virtual party to the suit, and therefore liable for the costs, (w) But the remote and contingent interest of a corporator in a mere municipal corporation, is not sufficient to exclude him as a witness in behalf of the corporation, (o) And where the corporators are mere trustees, they may be witnesses. That was the case in Weller v. The Governors of the Foundling Hospital, (p) and Lord Kenyon admitted several of the Grovernorsto prove the badness and insufficiency of the work for which the action had been brought. And in all cases a mere trustee, without legal interest, may be a wit- ness ; (q) if he is not responsible for costs, (r) Must be a present interest. The interest to disqualify, must be a present interest, and not a mere expectancy or probability. An heir apparent may be a witness concerning the title of laud, or charges upon it ; for his heirship is only a contingency ; but one who has a vested re- mainder cannot, for he has a present estate in the land, (s) So a co- obligor in a bond for due administration is a good witness to prove a tender by the administratrix ; though a bail is incompetent, because he would immediately become answerable if a verdict were given against his principal. (^) Ignorance as to interest. The ignorance of a witness with regard to *his interest does not make his evidence admissible, if he is really [*364] (*) Evans v. Teatherrl, 2 Bing. 135. And see Blaokctt v. Weir, 5 B. & C. 386. yl) Owens v. CoUinsoa, 3 Of ill. & John. 25. (J!E) I Brort. & B. 5. 6 Mad. 47. Pai-kcr v. Carter, supra. {X) Dn Bane v. I^ivette, Peake's.Ca. 77, n. 4 Munf. 273, 28G. («) Tavlor v. Forster. 2 Car. & P. 295. Pnote v. Havnes. 1 Ky. & Moo. 165. {z) 2 K. S. 406, } !)2, (orig. S 73.) 3 id. 5th ed. 690, { 104. (a) Id. i 93, (orig. 5 73.) common pleas, that the provision of the Code of Prooeclure, declannst that " a partv to an action may he examined as a witness, at the instance of the adverse party, and for that purpose" n)ay be cnmpelled to testify, in the same manner, and subject "to the same rules of examination, as any other -witness," (Code, §390,) sweeps away the rule of the common law, that parties to actions sliould not he compelled to give evidence asrainst themselves ; and that every privilege, either of the party, or of his attorney, that was founded upon it, is gone. But that the protection that was ex- tended to Gonficiential communications hetween attorney and client remains unaffected, as the reasons upon which that rule was founded is as applicable now as it was before ; but with this exception, a party to an action, or his attorney, are no longer privileged to withhold testimony. (7) This statute does not protect communications or admissions made to. a clergjTnan or prie.'it, unless they are made in the due course of discipline of his church. This is the rule even when they relate to a criminal offence. {The People v. Gates, 13 ■Wend. 312.) (8) This section of the Revised Statutes does not prevent a physician, in an actiim by him, for his services, from testifying as to the nature of the disease, and the general character of the treatment used by him. (Kendall v. Grey, 2 Hilton, 300.) ISTor are the provisions of the statute applicable to the physician of a deceased person, in a testamentarv case, concerning the probate of a will made by such deceased person. (Allen V. PuUieAdm'r,lBTa,df. 221.) Whether the protection from disclosure in such a case is the privilege of the witness, or of the party ; and whether testimony thus given by a physician can be rejected by the court, unless objected to by the party? Qucere. (Johnson v. Johnson, 14 Wend. 637.) A physician consulted by the defendant, as to the means of producing an abortion, is not privileged from testifying, in an action for seduction. (Hewit v. Prime, 21 Wend. 79.) Tbe common law did not render such communications privileged. The "informa- tion" spoken of by the statute, clearly has reference to, aud forbids the disclosure of all facts which come within the physician's knowledge in a professional case. It is not confined to communications made to the physician. The patient, and not the phvsioian, is to be protected. (The People v. Stout. 3 Park. Cr. R. 670.) It is not necessary that the technical relation of patient and phvsiciau should exist. If the 533 9.g9 PROCEEDINGS TO A DECREE. [Book T. Parents to hastardlze issue^ There is a rule founded, to use the ex- pression of Lord Mansfield, "in decency, morality, and policy, that parents shall not be permitted to say, after marriage, that they have had no connection, and therefore that the offspring is spurious ; more especially the mother, who is the offending party." " The law of Eng- land," he says in another place, "is clear, that the declarations of a father or mother cannot be admitted to bastardize the issue born after marriage." (5) This must not, however, be understood to mean that tliey may not give evidence against the validity of their own marriage; though then it is said they come forward under a cloud of suspicions, (c) SECTIOK II. EXAMHfATION- OF WITi^-ESSES. In this state, witnesses are examined either by an examiner, by a vice- chancellor, by commissioners, under a commission issued for that pur- pose, or by the court itself, at the hearing of the cause. (9) Commissions to take testimony may be executed either within this state, or in some foreign state or country. And exhibits may be proved, viva voce at the hearing, in certain cases. Usually, testimony is not taken in this court until after the cause is at issue; but in certain cases witnesses may be examined de iejie esse, before the defendant has put in his answer. (bj Stevens \. Moss, Cowp. 591. fcj Standeii v. Edwards, 1 Ves. 134. Bull, N. P. 112. visit was regarded and acted upon as professional, by the person attended, it is suffi- cient to bring tbe case within the statute. (Ibid.) In Hanford v. Hanford, (3 Edw. Oh. 468,) it was decided that a divorce for adultery would not be granted upon the testimony of a physician disclosing information which he had acquired in the course of his professional employment ; such testimony being prohibited by statute. After a physician has proved an employment professionally, the entries in his book, of the visits, may be received, to show the number of visits. (Clarke y. Smith, 4(5 Barb. :jO.) Such book is evidence of nothing else; and for this purpose it is not necessary, as in other cases where books are admitted in evidence, to prove that the plain tiff keeps correct books, or that others have settled by them. (Ibid.) (9) The Constitution of 1H46, in abolishing the comt of chancery, also abolished the office of examiner, and the entire practice of taking testimony out of court, except in cases where testiuiony is taken de bene esse (or oouditionally ; ) or in order that it mav be perpetuated ; or where witnesses out of the state are examined under a commis- sion issued for that purpose, as in suits at law. "When an equity action is at issue, it is now brought to trial, before the court, or a referee, in the same manner as a com- mon law issue in a ca-ic where a jury is waived; witnesses are examined in the presence of the court, en- referee ; and the proceedings down to, and including the entry of jmlgmeut, are in all respects similar. (See Yan Sant. Bq. Pr. 20.) 534 Chap. 10.] PRocEEDmas to a decree. 269 The subjects to be noticed in the present section, are, I. Examina- tion of witnesses de bene esse; II. By an examiner; III. By a vioe- *chancelIor; IV. By commissioners, under a commission; V. [*27'0] By the court, at the hearing; VI. As to credit of witnesses. I. EXAMIlfATION' DB BEXE ESSE. Different methods of examination.'] There are two methods of taking the examination of witnesses de lene esse in this court: 1. Under an order of the court, upon a special application therefor; and 2. By sum- mary proceedings under the statute. 1. Under an order of the court.] This was the ancient mode of pro- ceeding to take the examination of witnesses de bene esse; and al- though the revised statutes authorize an examination in a more sum- mary manner, before certain officers out of court, witliout any application being made to the chancellor or vice-chancellor, for leave to do so, the former method does not appear to have been abolished. It will there- fore be necessary to consider it. In what cases resorted to.] (10) The examination of a witness de bene (10) Examination op witnesses de bene esse. The statute now governing the examination of mtnesses de bene esse directs that whenever any action pending in any court Jolin. Ch. Rep. 191. 546 Ghap. 10.] PROCEEDINGS TO A DECREE. 279 Attendance of witnesses how compelled.'] Whenever there is reason to suppose that a witness will not voluntarily attend to be examined, recourse must be had to the compulsory process of subpoena ad testifi- candum ; which commands the witness to whom it is directed to appear before the examiner to testify on behalf of the party requiring his testimony. Process of subpcena to compel the attendance of witnesses before an examiner may issue of course. It must specify the time and place of attendance. But no witness can be compelled to appear before an ex- aminer more than forty miles from his place of residence, except by special order of the court, (o) Any number of names may be inserted in one writ. The statute makes it the duty of the register, assistant register, and clerks of the court to furnish to solicitors, when required, and on pay- ment of the fees allowed by law, blank process of subpoena for this ptirpose, duly sealed, (jo) Subpoena duces tecum. In case the witness is required to bring with him any written document or paper in his possession, the writ must be a subpcena duces tecum ; which is in the same form as the ordinary subpcena, except that before the words " and hereof fail not at your peril," the words '■'and that you, then and there bring with you and produce" [naming the document or paper required,] are inserted. Under this process, the party may, in court, object to the production of the document ; and if the objection be overruled, production is com- pelled, (q) An attorney, who is a witness to a deed, and in possession of the same, cannot be compelled to attend with it at the hearing, otherwise than by a subpoena duces tecum, (r) A solicitor who has been served with a subpoena duces tecum, for the purpose of having a deed in his possession proved on behalf of the complainant, cannot object to producing the deed, on the ground that he has a lien on it for costs due *frora the defendant. If he does, the court will order him to [*380] produce the deed at his own expense, and to pay all the costs conse- quent on his refusal, (s) Service of subpcena. The subpcena is served by exhibiting to the . witness the original writ under the seal of the court; delivering to him a copy of such writ, or a ticket containing its substance ; and pay- ing or tendering to him the fees allowed by law for travelling to, and returning from, the place of examination, and the fees allowed for one day's attendance, {t) Those fees are, fifty cents per day to each witness, (o) Enle 76. (P) 2 R. S. 179, S 75. (onff S 69. ) (a) Field v. Beanmont, 1 Swanst. 209. (r) Biii-k v. Lewis, 6 Mad. 29. (s> Bi-aseiiigton v. Brassington, 1 Sim. & Stu. 435. (t) 2 It. S. 400, i 54. 547 280 FRooEEDiyas to a decree. [Book I. for attending, and four cents for travelling every mile in coming to or returning from the place of attendance, if the witness resides more I ban three miles from the place of attendance, (m) If the witness, whose attendance is required, is a married woman, the subpoena must be served upon her personally, and the fees should be tendered to her personally, and not to her husband, [v) The person serving the subpoena should be careful to see that the copy delivered to the witness is a true copy of the original writ; in- order that he may make affidavit of the fact, if necessary. And he: should tender to the witness, in specie, the fees for attendance and. travel to which he is by law entitled. Proceedings against witness wlio fails to attend. The statute relative to proceedings as for contempts to enforce civil remedies, contains a provision authorizing persons summoned as witnesses who shall refuse; or neglect to obey such summons, or to attend, be sworn, or answer, to be proceeded against in the manner therein provided, (w) And by another article of the statute, a failure of such witness to attend is de- clared a contempt of court, and subjects him to the payment of the sum of fifty dollars ; besides the damages the party subpoenaing him may have sustained, {x) The 76th rule also contains a provision that witnesses duly subpoe- naed may be punished for contempt, if they fail to attend and submit to an examination. The particular method of proceeding against witnesses, under these provisions, will be stated hereafter, under the head of "contempts." Furnishing names of witnesses.] Before the commencement of the examination of any witnesses, except those examined de bene esse, the [*281] *parties must furnish to each other, or to the examiner, the names of the several witnesses intended to be examined, with their places of abode, and additions. And no witnesses, whose names are not thus furnished, can be examined by either party without special permission of the court on sufficient eause shown, and after notice to the opposite party, {y) But this rule does not extend to witnesses who are examined merely as to the general character of other wit- nesses, (z) If the attention of a party is called to the provisions of the above lule, at the commencement of the examination, and he neglects to fur- nish a list of his witnesses, he must, in addition to showing a sufficient fu) Laws of 1840, p. 331, ! 8. (v) 1 Phil. Ev. 782. CwJ 2 R. S. 534, f 1. (xj Id. 400, { 65. (yj Kule 83. Mott v. Kellogg, in Chan. Dec. 7th, 1830. (z) Idem. 548 Chap. 10.] PROCEEDINGS TO A DECREE. 281 excuse for his neglect, state what facts he expects to prove by his wit- nesses, {a) Proceedings lefore examiner.'] Tlie parties, with their counsel, liave a right to be present at the examination of witnesses by an exami- ner. (5) And such examinations are public. The witnesses are to be examined, cross-examined, and re-examined ■orally, (c) It is not the practice in this state to make use of written interrogatories before examiners, as is done in England ; although there is nothing in the statute or rules to prohibit it. "We have already stated that where a party to the cause is to be ex- amined as a witness, the order for his examination must be produced to the examiner, before his examination is entered upon, {d) Oath to witnesses.] The first thing to be done by the examiner is to administer the oath to the witnesses. The form of the oath is as fol- lows: — the witness laying his hand upon, and kissing the gospel: •'You shall true answer make to all such questions as shall be asked of you upon the examination in this cause pending in the court of chan- cery of the state of New York, wherein A. B. is complainant and C. D. is defendant, without favor or affection to either party; and therein you shall speak the truth, the whole truth, and nothing but the truth, so help you God." Or, if the witness desire it — "You do swear in the presence of the ever-living God, that the answers," &c. "While taking this oath, the witness may or may not hold up his hand, in his discre- tion, (e) If the witness is a Quaker, or declares that he has conscientious scru- ples against taking any oath, or swearing in any form, he will be allowed to give his testimony upon his solemn affirmation, as follows : " You *solemnly, sincerely, and truly declare and affirm, that you will [*382] true answers make,"&c. If the witness believes in any other than the christian religion, he is to be sworn according to the peculiar ceremo- nies of his religion, if there be any such ceremonies, instead of the modes above prescribed. (/) In this latter case the examiner must cer- tify, in his jurat, the manner in which the oath has been administered, the religion of the witness, and that the mode pursued is the usual and most solemn form in which oaths are most usually administered to witnesses professing such religion, {g) Method of examining loitnesses.] The direct examination of the wit- ness must be completed and signed by him before his cross-examina- tion is commenced. Pi-evious to every adjournment also, the testimo- (a) Ganl v. Miller, 3 Paige, 192. (i) 2 R. S. 180, h 09. (orig. S 83.) (c) Id. ib. (d) Ante, p. 262. (e) 2 E. S. 407, } 103, (orig. S 83.) (f) 2 K. S. 407, jj 101, 103, (orig. j} S4, 85.) (g) Oinycliuml v. Barker, 1 Atk. 21. 549 282 PROCEEDINGS TO A DECREE. [Book I. uy, so far as it has been taken, must be read over to the witness, and be signed by liim. {]i) The witness may be permitted to explain or correct any mistake made by him, at any time before his examination is finally closed; but no part of his testimony previously reduced to writing can be erased or altered, (i) The examination of each witness must proceed fromday to day, un- til it is completed. (Jc) Counsel have no right to advisea witness that he is not bound to an- swer a particular question. It is the duty of the examiner to inform a witness of his legal rights. (Z) The questions may be put to the witness, either by the solicitor or by the examiner; and the examiner takes down the answers in writing; concluding the answer to each question before another one is put. TJse of notes hy tviiness.] A witness may be permitted to use short notes to refresh his memoi'y, but not the substance of his depositions; nor may he transcribe such notes verbaiiin. (m) The rule is that he may refresh his memory by notes, as to dates and names ;. because there is nothing to gui,de the memory as to them ; but he cannot be allowed to give his whole evidence from writing. («) Demurrer by witness.] If improper questions are put to a witness, he may, by a demurrer, object to answering tliem. This species of de- murrer signifies merely the witness' tender of reasons why he should uot answer the question ; and is not, like a demurrer in pleading, con- [*283] *fined to the facts appearing upon the record, but states the facts upon which the witness relies as the ground of his objection, (o) The grounds upon which a witness may protect himself from an- swering interrogatories or questions, are principally, 1. That his an- swers may subject him to pains or penalties, or to a forfeiture, or something in the nature of a forfeiture-; 2. That the disclosure re- quired may subject him to a decree against himself; or 3; That he cannot answer without a breach of professional confidence, {p) Another ground of demurrer has been attempted to be set up, viz. that the question is- immaterial to the case, or irrelevant; but it has been held that this ground of objection will uot prevail; because it does not concern a witness to examine what is the point in issue, (q) - (h) Rule S4. (i) Idem. (k) Idem. (I) Taylor v. Wood, 2 E) 1 Hoff Pr. 473 tw) See ante, p 279. Hule 76. (x) See .inte, p. 27S. Kule 72. {y) Bradsliaw v. Bradshaw. 1 Rnss. & iry. 353. («) See ante. p. 281. (oj ait. S. 180, }8(i, jorig. fS2.) (6i Id. ib. j3i), (ong. }83.) 562 Chap. 10.] PROCEEDINGS TO A DECREE. 295 The particular method of taking the testimony, and of objecting to witnesses, is tlie same as that in use before examiners, and is regulated by the 84th and 85th rules, (f) *Tlie comaiissioners must subscribe their names to each sheet [*29G] of depositions taken by tliem. [d) Return to commission.] N"either the statute nor rules specify any particular time within which commissions are to be returned. The time may be fixed by the order granting the commission, according to the circumstances of each case, or by the court, upon a special appli- cation under the 71st rule. After the examination of the witnesses is completed, the depositions are to be annexed to the commission; upon the back of ■which there- turn is endorsed in the following form: " The execution of this com- mission appears in a certain schedule (or schedules) hereunto annexed." This return is made by two or more (generally all) of the acting com- missioners, who must subscribe their names thereto, (e) Commissioners making a false return, e. g., by certifying that a wit- ness was examined, upon oath, who was never examined, are, by the English practice, finable. (/) If any of the commissioners obstruct the others in their examina- tion, or examine irregularly, such misbehavior, or whatever else it may be necessary to communicate to the court, may be certified by the com- missioners in the return of the commission. This may be done with- out affidavit, because, being officers of the court, they are allowed to certify. But it seems that a party wishing to avail himself of such certificate, must make an application supported by affidavit of the fact ; otherwise the court will not take notice of the commissioners' certifi- cate alone; because they are appointed for another purpose, and are not to certify but of necessity, {g) So if a witness, upon being produced before the commissioners, de- murs or objects to being examined, they must return the objection, with the commission. (A) The commissioners enclose the depositions and the commission, with the return endorsed thereon, in an envelope, seal the envelope, and sign their names iipon the outside of the package, in their own proper handwriting, and direct it to the register, assistant register, orclerk.(i) In a recent case before the chancellor, {Jc) he stated it to be the settled practice of the court, that a commission may be returned by the com- (fl) See ante, p. 281 ei seq. [d) Hinde, 345. 2 R. S. 394, i 24, sub. 4, (orig. flG.) («) 1 Smith, 380. (/) Hiniie, 358. Cio. Eli/.. 623. (0) Id. lb. (ft) 2 Dan. 512, n&). (1) Brown v. SouUiworth, 9 Paige, 351. (i) Idem. 503 596 PROCEEDIjYGS TO A DECREE. [Book I. niissioners by mail in all cases; unless there is a special order to the L*297] contrary. *Ancl he observed that the return of a commission liy mail was as safe as the return of it by a special messenger; and tliat the sanctioning of this practice would save the delay and expense of special applications to the court for directions in that class of cases where the commission is issued upon a petition to the register, or clerk, without a previous order of the court. If the commission is returned by mail, the commissioners must de- posit the packet, directed as above mentioned, in the nearest post oflBce, and endorse thereupon : " Deposited in the post ofBce at. . . ., this. . . , day of by A. B. and 0. D., commissioners." If the commission is directed to be returned by a messenger, the com- missioners, unless the order names some particular person, must de- liver it to such person as the party suing out the commission shall designate ; who will bring it to the oflBce of the register, &c. The messenger, on delivering the commission to the registers, &c., must make oath, before him, "that he received the commission from the hands of the commissioner or commissioners, and that it has not been opened or altered since he received it." {I) Where a commission for the examination of witnesses in Lisbon, was executed, and forwarded with the depositions to England, but the ship in which they were sent was lost on the passage, the court ordered the commissioners, or any two of them, to transmit the drafts of the de- positions, and to certify the circumstances of the return of the com- mission ; but would not make any order for the reading of the drafts of the depositions, &c., at the hearing of the cause, until after the com- missioners had made their return and certificate, {ni) In another case, [n) where the messenger accidentally lost the com- mission upon the road, and it was picked up by travellers,. it was al- lowed to be read, upon their affidavit that they had not opened or al- tered it. So where depositions of witnesses examined in India were, by mis- take, transmitted from thence to the complainant's solicitor by post, and the packet was delivered to the master unopened, they were received, oil the facts being verified by affidavit, (o) Opening of packet.^ Wlien the commission is returned, it is opened [*298] *by the chancellor or the register, &c., and objections of every kind to the evidence are taken and considered at the hearing of the cause, {p ) («) Hinde"s Pr. 352. (ml Burn v. Burn, 2 Cox, 426. 1 Dick. 352. n) Smales v. Chayter, Dick, 99. (o) Keiineily v. Kennedy, 1 Hogan, 311. Cp) Strike v. McDonald, 2 Hanis & Gill. 192. 664 Chap. 10.] PROCEEDINGS TO A DECREE. 29S Examining parties, on a commissi on.l Parties in the cause may be examined upon a commission, whenever they are competent witnesses, us well as before an examiner. (§') (13) But whenever a party is to be examined, the order for his examination must be produced to the com- missioners before his deposition is taken ; as without an order of the court, they would not be authorized to examine a party, [r) Commission to examine de bene esse.] A commission may also be issued to examine witnesses de bene esse, when necessary; to be executed either in this state or in a foreign country, (s) 2. Commission to examine Witnesses out of the State. In what cases issued.] It sometimes occurs that witnesses whose testimony is important to the parties in the cause, or some of them, reside abroad, or in some place out of the jurisdiction of the court. In such cases a commission to examine witnesses abroad must be ob- tained. (14) (g) Plainville v. Brown, 4 Hen. & Munf. 482. (r) Hinde, 357. (s) See 2 Dan. 548. Hiiide, 315. (13) See ante, note 1, chap. 10, and Code, 5 300. A commission may be issued to examine a ncra- resident party , as a witness, in the usual manner. (Block v. Haws, S Ab. 335.) But only as to such matter as can be used on the trial; not as to matter to be used on a collateral motion. {Harlin v. Eidiier, 6 Ab. 19 ; Stake v. Andre, 9 id. 420; S. C. 18 How. Pr. 159.) (14) Examination" op witnesses out of the state, on a commission. It is provided by the Revised Statutes that whenever an issue of fact shall have been joined in any action in a court of law, being a court of record, and it shall appear, on the application of either party, that any witness not residing within this slate is material in the prosecution or defence of such action, the court may, upon such terms as it shall think proper, award a commission to one or more competent persons, authorizing them, or any one of them, to examine such witness on oath, upon the interrogatories annexed to such commission ; to take and certify the deposition of such witness ; and to return the same according to the directions given with such commission. (3 Rev. Stat. 5th ed. 675, $ 11.) If such action be pending in the supreme court, any justice of the court may, in vacation, gi-ant an order that such commission issue, up(m proof that due notice of application for such order has been sei-ved on the adverse party, at least ten days before the time of making such application. (Ibid, § 12.) A county judge may also grant such an order. (Code, § 403.) Section 24 of the Revised Statutes directs that if an interlocutory judgment shall have been obtained, in any action, a commission may be awarded, on tlie application of the plaintiff, in the like cases and in the same manner as if an issue of fact had been joined; and the depositicms taken thereon may be used in evidence on any proceed- ing to assess the plaintiff's damages, with the like effect as is provided in case of a trial. (3 R. S. 677, 5th ed.) And the act of April 19, 1862, amending the Revised Statutes, dii-ects that whenever a default shall have been taken for want of any appearance or answer or other pleading, in any action, and in any proceeding pending in any court of record, and whenever any issue of fact shall have been joined in any such action or proceeding, and it shall appear, on the application of either party, that any witness not residing in this state is material in the prosecution or defence of such action or proceeding, the court may, up(m such terms as it shall think proper, award a commission to one or more competent persons, authorizing them, or any one of them, to examine such witness on oath, upon the inten'ogatories annexed to such commission; to take and certify the depositi(m of suoli witness, and return the same 5t).5 298 PROCEEDINGS TO A DECREE. [Book I. Commissions of tliis description may be issued to take the deposi- tions of witnesses in any country. Where the country in which the witnesses reside is at war with this, the usual practice appears to be to direct it to the nearest neutral port ; {t) but in Gahill v. Shepherd, {u) the court made an order for a commission to examine witnesses in Seville, in Spain ; although there was then a war between England and Spain. (0 V. Romney, 1 Amb. 62. («) 12 Ves. 333. according to the directions given with such commission. Bat in all cases of default for want of appearance, no notice of such application shall he required to be served on the adverse party. (Laws of 1862, ch. 375.) By the act of April 17, 1852, the marine court of the city of N"ew York is author- ized to issue commis.^ions to take the testimony, in actions pending in that court, of witnesses residing out of the city and county of JSTew York, (n' out of the state. (Laws of 1852, ch. 389, % 8.) By the act of April 13, 1857, the district courts in the city of New York are authorized to issue commissions to take the testimony of witnesses re- siding out of the city and county of New York, to be read on the trial of actions therein, hi the same manner as justices of the peace are authorized to do, and the power is extended so as to authorize the issuing of commissions to take the testimony of witnesses residing out of the state. (Laws of 1857, ch. 344, § 30.) The power to issue a commission is an innovation on the common law, and must be strictly pursued. {Creamer v. Jaclson, 4 Ab. 413.) In Deshon v. I'aclcwood, (1(> Ab. 272, note,) it was decided (in 1862) by the superior court of New York, that a commission could not be granted to examine witnesses orally, instead of upon inteiTogatories, and in Ferrie v. The PiMic Adminis- trator, (3 Bradf. 24U.) it is said by the surrogate of New York that the court will not depart ti'om the usual method ol issuing commissions to take testimony in foreign countries; unless it is shown that there are important advantages to be gained by t,ome other mode, la Glui/ton v. Tarr'uiginn, (16 Ab. 273, uottf;) however, it wa.s decided, at a general term in New York, (in 1858.) that an order granting a commis- sion might be upon condition that the applicant consent that the witnesses be also examined and cross-examined orally. A commission may issue to examine a non-resident party as a witness, under sec- tion 399 of the Code, in the usual manner. {Block V. Saws, 8 Ab. 335; Fairbanks V. Trcgaut, 16 How. Pr. 187 ; S. C. 17 id. 258; 7 Ab. 21; SImfelt v. Power, 10 How. Pr. 286 ; Burling v. Ugden, 14 id. 75 ; S. C. 6 Duer, 681.) But a commission will be issued to examine a, party only as to such matter as can be used on the trial ; not as to matter to be used (m a mere collateral motion. (HaWi« v. A'idKer, 6 A b. 19; Stake V. Andre, 9 id. 420; S. C. 18 How. Pr. 159.) By section 389 of the Code, no exaniinaticm of a party shall be allowed or had on behalf of the adverse party, except in the manner prescribed in the Code. By the subsequent sections, he can be so examined as a witness, oidy. And one who is ex- amined merely as to matters controverted on a motion, or whose examination is used (miy cm such motion, cannot be called as a witness. (Ibid.) AVhere a party swears, upon the advice of counsel, that another party, who is absent from the state, is a material witness, he should be regarded as having made a prima facie case for a commission. {Slutfelt v. Power, 10 How. Pr. 286.) An applicati(m for a commission is a motion, as defined in section 401 of the Code, and must be made within the district in which the action is triable, (n- in a county adjoining that in which it is triable. {Erwin v. Voorhecs, 26 Barb. 127 ; Stiirges v. Weed, 13 How Pr. 130; Dodge v. Rose, 1 Code Kep. 123 ; iVewcoH/ ft v. Reed, 14 How. Pr. 100.) Accordingly, where the place of trial was in the county of Stenben, and a commissicm was issued, and the interrogatories settled and allowed, by the county judge of Ou(mdaga county, upon notice; it was held that the county judge had uo power to hear the application and allow the commissiim, and that the deposition taken under suuh commission was properly rejected. {Erwin v. Voorhees, supra.) Tue Kevised Statutes and the judiciary act, in reference to such a motion, are incon- sisteut witli section 401 of the Code, and the latter must prevail. {Sturgess v. (yeed, supra.) But as the constitution gives to the supreme court general jurisdiction throughout the state, if a motion for a cimimissiou is heard and decided by the court, 566 Chap. 10.] I'ROCEEDINGS TO A DECREE. 297 How obtained.'] A foreign commission may be applied for by peti- tion to the register, assistant register, or clerk, in the same manner as a commission to examine witliiu the state, (v) (») See ante, p. 293, 294. in the wrong count}', by default, the order is not void for want of jurisdiction, but is merely irregular; and is binding until vacated, or i?et aside. (Blackiitar v. Imvager, 5 How. Pr. 31)7 ; S. C. 1 Code Rep., K. S. 80 ; GoiiM v. Boot, 4 Hill, 554.) Whenever the hona fides of the application is doubtful, a commission (that is, with stay of proceedings,) will not be ordered on the common affidavit. ( Vandervoort v. Xhe ColumMan Ins. Co. 3 John. Cas. 137.) The statute authorizes the granting of the order for a commission upon the "appli- cation, " of either party. This may be made upon affidavit, or petitiou, or an order to show cause, with a preliminary stay of proceedings, if absolutely necessary. "When the application is made to a judge of the court, at chambers, or to a county judge, a notice of ten days must be given. "When made in open court, it seems the usual notice of eight days is sufficient. (Van Sant. Bq. Pr. 5287.) The adverse party ma.y oppose the application by affidavits ; and if he sliows valid grounds of opposition, the application will be denied; the gi'anting of a commission being always in the discre- tion of the court. {Vandervoort v. Columbiait Ins. Co., 3 John. Cas. 137.) It seems that there is nothing in the rules of practice, or the statute, which requires the motiim papers for a commission to state in what county the action is to be tried. {Blackmar v. Van Iiiwagei; 5 How. Pr. 367.) The proof of the materiality of a witness may be made by the agent or attorney of a party, if he is able to prove facts sufficient to make out a ease. (Beall v. Dey, 7 "Wend. 513 ; Matnn v. North, 7 Baxh. 631 ; S. C. 3 Code Bep. 234 ; JJemar v. Van Zandt, -i John. Cas. 69; Murray v. Kirl:patrick, 1 Cowen, 210.) The agent in fact tif the plaintiff, acting under a letter of attorney, may make the affidavit on which the motion is founded ; without showng any excuse for its not being made by the party himself. (Johnson v. Lynch, 15 How. Pr. 200. See Deshay v. Persse, 9 Ab. 289, n.) It is surplusage to add that the party cannot safely proceed to trial without the testimony sought. (BracJcett v. Dudley, 1 Cowen, 209.) The residence of the witness need not be positively sw(hii to: informatiou and belief is sufficient. {Eaton v. North, 7 Barb. 631 ; S. C. 3 Code Rep. 234.) The affidavit must set Ibrth that the party applying for a commission has stated to his counsel what he expects to prove by the witness. (Mygatt v. Garrison, 18 Ab. 292, note.) But when the affidavit is made by an attorney, he ueed not swear to the advice of counsel. {Beall v. Dey, 7 "Wend. 613; Deinar v. Van Zandt, 2 John. Cas. 69.) The (U'der for a commission, shall be granted by a justice or county judge out of court, only in the like cases, and upon the same terms, that the supreme court would allow such commission ; and shall be subject to the control of the ecmrt, in all re- spects. (3 Rev. Stat. 5th ed. 675, § 18.) It must be filed in the office of the clerk of the court. (Ibid.) When the order is allowed by the court, it will, of course, be entered with the clerk of the county, in the usual way. It has been decided that there is no authority either under the Revised Statutes, (U- section 399 of the Code, as amended itt 1860 and 1862, for issuing a commission in supplementary i>roceedings . (Morrell v. Hey, 15 Ab. 430; S. C. 24 How. 48.) An insurance company, acting as receiver, in relation to claims against the former capital and assets of the corporation, is not entitled to a comuiissiim to examine wit- nesses, where the matter in controversy has been submitted to referees, under a special statute authorizing such proceeding. ( IVood v. 2'he Howard Ins. Co. 18 Wend. 646.) It seem* that such commissicm can issue (mly when there is an arfioi pending in a court of record, and an issue joined upon pleadings, in the liu-ms pre- scribed by law. (lb.) The rule declaring that a motion once denied cannot again be renewed without special leave, is applicable to motions for a oimimissiou. (Doll fas v. Frosch, 5 Kill, 493 : Mitchell v. Alkn, 12 Wend. 290; Allen v. Gihhs. id. 202.) The order for a commission does not operate, J)ey se, as a stay of proceedings. If it be intended that it have such an effect, the court will so diject. (Maynard\. Chapin, 7 Wend. 520.) To entitle a party to a stay of proceedings, on applying for a commission, the application tor the commission should be made within twenty days after the service of the reply. {Banic of Charleston v. Murlbut, 1 Sandf. 717 ; S. 0. 1 Code Rep. 96.) 567 298 PROCEJEDINGS TO A DECREE. [Book I. But in some cases the party will be obliged to make a special appli- cation to the court. For instance, in a petition and commission under the 69th rule, the names of the witnesses must be stated; and there are sometimes various provisions necessary in a foreign commission, which the register is not authorized to insert in the order. Sometimes also the party allows the time for applying to the register, &c., to pass by without having presented a petition to him. For these reasons it is quite common to apply to the court itself for an order. This practice is authorized by the 71st rule; which provides, that if [*299] *it shall be necessary to have a commission to examine wit- nesses in any case not provided for in the 69th and 70th rules, or after the expiration of the time therein limited for making an application to the register, assistant register, or clerk, the party may present a pe- tition to the court for that purpose, setting out the facts which entitle him to a special commission. The usual notice of this application must be given to the adverse party. Duplicate commission.] Where the adverse party will join in the commission, the court will sometimes give him liberty to take oat a du- plicate and transmit it to his own commissioner, (w) But if the oppo- {w) 1 Hoff. Pr. 475. Hinde, 303. Where no laches is imputable to a paity applying for a commission, and there is nothing to cast suspicion upon the application, he is not bound to state ivhat he expects to prove by the witness whose testimony he seeks to procure. (Eaton v. North, 7 Barb. 631 ; S. C. 3 Code Eep. 234; Rogers v. Rogers, 7 Wend. 514.) But there may be such suspicious circumstances as will authorize the court to requii'e the party applying, to state wh^t he expects to prove by his witnesses. {Roger's v. Rogers, supra.) And if the adverse pai-ty shows that the testimony sought will probably be insufficient aud proposes to admit whatever the applicant will swear he expects to prove, on the commission, the latter will be required to state what he ex- pects to prove, and on his opponents stipulating to admit the same, the commission will be refused. But, in such a case, the facts are to be admitted — not that tUe foreign witness wiU testify to such facts. (Banlc of Commerce v. Michel, 1 Sandf. 6H7. See, also, Vandervoort v. Columbian Ins. Co., 3 John. Cas. 137.) In a proper case, a second commission may be issued. ( Washington Bank of Westerly v. Palmer, 2 Sandf. 686 ; S. C. 8 K Y. Leg. Obs. 92 ; Fisher v. Dale, 17 John. 343; Bank of Ithaca v. Bean, 1 Code Kep. 133 ; S. C. 7 N". Y. Leg. Obs. 525 ; Kichol V. Columhian Ins. Co., 1 Caines, 345; Coles y. Thompson, 2 id. 47.) A motion for a further commission is proper where pleadings are amended after the return of a commission, and further testimony is required. ( Vincent v. Conklin, 1 E. D. Smith, 203.) So where depositions of witnesses residing abroad, taken under a commission, were read on the trial of a cause, and the jury, not being able to agree, were discharged, a second commission was issued to re-examine the same witnesses ; it being shown by affidavit that some of the doubts which existed at the trial would probably be removed by such re-examination. (Fisher v. Dale, 17 John. 343.) But a party cannot have a new commission to re-examine a witness, merely on the ex- pectation that he ma,y now swear more definitely than before ; where there is nc suggestion that the witness has made a mistake, or that new evidence has been discovered; especially when the (miy other witness who is cognizant of the fact to which the witness is sought to be re-examined is dead. (Raney v. Weed, 1 Barb. 220.) Newly discovered evidence, or inipositicm ; or fraud practised upon the wit uess ; or a mistake on his part clearly shown ; aud the like, will be sufficient causes to authorize the court, in its discretion, to issue a new commission. (Van Saut. Eq. Pr. 29o.) 508 Chap. 10.] PROCEEDINGS TO A DECREE. 299 site party has thus an opportunity of joining, and fails to do so, he will not be permitted to sue out a new commission to the same place him- self, except on special grounds, {x) Number of commissioners.] Pour is the usual number of commis- sioners; {y) but whei'e the commission is to be executed in a foreign country, particularly if very distant, it is the custom to increase the number — sometimes as many as eight have been appointed, {z) Form of commissio7i.] The commission differs but little, in form, from a commission to be executed within this state ; unless it be a com- mission to examine foreigners in their own language ; in which case it directs that they shall " be examined on their respective corporal oaths, to be first taken before the commissioners, or any two or more of them, solemnly." (a) It also differs in another respect from a commission to be executed within this state. As the court has no power to compel foreign com- missioners to execute the commission, it simply authorizes them to ex- amine the witnesses; but when directed to commissioners within the state, it authorizes and requires them to do so. (15) Interrogatories.] Witnesses examined out of the state, if the parties do not consent to an oral examination, are to be examined on written, (a:) Campbell v. Scougall, 19 Ves. 554. (y) 1 Newl. 410. (z) Anon.. Atk. 633. 2 Fow. Pr. 74. (a) Hinde. 309. Kamkissenseat v. Barker, 1 Atk. 19. 2 Dan. 535. (15) A comraissiou must be under the seal of the court out of which it issues ; otherwise it will be defective. {Whitney t. Wyncoop, 'lAb. 370; Ford\. Williams, 24 ]Sr. T. 3.59.) To eveiy commission authorized by article 2, of title 3, chapter 7, of part 3 of the Revised Statutes, there must be annexed a copy of section 16 of that article ; which directs as to the manner of executing and retm-ning the commission. (3 Eev. Stat. 5th ed. 676, $ 16, sub. 6.) It seems that this provision is not applicable to commissions issued by justices of the peace. It is merely directory, and not absolutely essential. The main question is, has the commission been properly executed 1 {Hall v. Barton, 25 Barb. 274.) In Williams v. Eldridge, (1 Hill, 249.) the deposition was held to have been properly read in evidence, though it did not appear that a copy of section 16 of the statute had been aunexed to the commission ; and that if annexing a copy of that section was essential, the court would intend it to have been done ; unless the con- trary were shown. The names of the witnesses to be examined ought always to be inserted in the commission, if possible; and where their names might have been ascertained, with due diligence, but were not, the commission was refused. {Wright v. Jessup, 3 Duer, 642.) When the names cannot be given, the witnesses should be described as accurately as possible, in some manner likely to identify the persons ; e. g. the clerks of a persim named. {Shaffer v. Wilcox, 2 Hall, 502.) Where, by mistake, the witness intended to be examined under a commission was not rightly named therein, but the commissioners, notwithstanding such mistake,' examined the witness, it was held that the deposition was extrajudicial, and could not be received as evidence in the suit (Brown v. Southworth, 9 Paige, 351.) 569 299 PROCEEDINGS TO A DECREE. [Book L- direct, and cross, interrogatories, to be allowed by a vice-chancellor, or master, and annexed to the commission. (5)(16) (b) Rule 72. (16) The interrogatories to be annexed to a commission must be settled by a judge of tlie supreme eom't in vacation; (;r, if the action bo in the supreme court, by a justice thereof, upon such notice as shall be established by the practice of the court. (3 Rev. Slat. 5th ed. 675, § 14.) A county judge has no power or authority to settle and allow interrogatories. {Erwin v. Voorhees, 26 Barb. 127.) In settling such interrogatories, either party shall be allowed to insert any question pertinent to the cause, which he shall propose. (3 Rev. Stat. 675, $ 15.) The interrogatories must embrace the subject of inquiry, and be governed by the rules applicable to oral examinations. The parties, however, may insert a general interrogatory, whether the witness knows of any other matter or thing material to the party, besides what he has been particularly interrogated unto ; under which the witness may state facts not previously called for under the particular interroga^ tories. And if this general interrogatory is not answered, the deposition cannot be read ; it being well settled that the witness must answer, substantially, all the inter- rogatories ; as it is otherwise impossible to say that he has told the whole truth. And it is no objection to a deposition that a material part of the evidence comes out under the general interrogatory. (1 Monell's Pr. 2d ed. 703.) "Where interrogatories were settled by stipulation of the attorneys, indorsed upon them as follows : " It is hereby stipulated by and between the attorneys of the re- spective parties in this cause, that the within inteiTogatories and cross-interrogatories are agreed upon, and that this stipulation have the same effect as the allowance of a judge, reserving all legal rights;" Held that on the trial of the cause neither party could object to the reading of the depositions on the ground that the interrogatories were leading. (Cope v. Sibley, 12 Barb. 521.) "Witnesses maj' be examined, on commission, as to an original paper, by annexing a copy to the interi'ogatories, for the puVpose of reference, description and identifica- tion, and producing the original on the examination of the witness. It is not indis- pensable that the original be annexed to the interrogattnies. {Commercial Bank of reiinsijlvama v. The Union Bank of New York, 11 N". Y. 203; S C. 19 Barb. 391.) A motion, at the trial, to Suppress the whole of a deposition, on the ground that some of the interrogatories, and parts of the deposition are improper, should be denied. If auy part of the deposition is competent, the objection should be confined to the part which is not so. (Ibid.) Interrogatories and cross-inteiTOgatories must necessarily embrace every subject which is material to the prosecution or the defence of an action. The questions con- tained in the interrogatories, ought to conform to the rules of evidence, in like manner as though the witness was to be examined in court, at the trial. It is ' permitted to either party to put a general interrogatory, and any evidence which is given in response to such geueral interrogatory is as conipeteut as that which is given iu response to a particular question. {Percival v. Hickey, 18 John. 257 289 • McCarty v. mwards, 24 How. Pr. 236.) ' ' "When the interrogatories are settled by the consent of the pa,rties, they may agree to waive all objectious as to the form of the questions, or as to the competency of the witnesses, or of specific items or qualities of evidence. "Where it is expressly stipu- lated that certain objections are reserved, and may be made at the trial, it will be presumed that all other objections were intended to be waived, and therefore no otheis can be raised, on the trial. {Morse v. Cloyes, 11 Barb. 100.) If a direct interrogatory, and the answer of the witness to it, are properly excluded by the court, cross-iuteiTogatories, and the answers thereto, which are dependent upon the direct interrogatory, should also be excluded. {Fleming v. Hollenbaok 7 Barb. 271.) ' The suprenie court has no power, in an action upon a draft or bill of exchange to order the draft to be annexed to a commission issued to take the examination of wit- nesses for the defendant, residing in another state. {Butler v. Lee. 3-i Barb 75 • S C. 19 How. Pr. -^Si. See also Gould v McCarty, 11 N". Y. 575: Edmonstone y . Hartshurii, iy i?!". Y. 9 ; Hoyt v. American Exchange Bank, 1 Duer 652 -808 Hc an independent sheet, the return may be on the sheet so annexed. (Pendell v. Conn, 20 N. T. 134.) And it is no objection to receiving a depo.sitiou in evidence, that the return of the commissioner is indorsed upon the interrogatories, which, together with the deposition, are annexed and se- cured to the commission. (McCleary v. Edwards. 27 Barb. 239.) "When a commission is returned by an agent, his affidavit, as prescribed by the statute, stating tJiat he received it from the hands of the commissioner, and that it has not been opened or altered since he received it, is indispensable, unless waived by consent. (Dwindle v. Hoxdand, 1 Ab. 87.) A connnissicm returned by express, and unaccompanied by such affidavit, is inadmissible, although that method of re- turning it was expressly authorized by the commission. (Ibid.) ■Where the commissioner signed his name on the margin of each sheet of the depo- siticras, held that this was sufficient without siguiiig it at the bottom. {Burrill v. Watertown Banlc, i/c. 51 Barb. 105.) Mere formal objections to the return of a com- mission will not, in general, be regardeil at the trial. To avail himself of such ob- jections, the party should move the court, before the trial, to suppress the deposition. (Ibid. ; Sheldon v. Wood, 2 Bosw. 269; S. C. 24 ST. Y. e07. See Union liankof San- dusky V. Torry, 2 Ab. 271 ) When sufficient time has elapsed, prima facie, to have obtained the return of a commission, issued with a stay of proceedings, the stay will be vacated on motion of the adverse party; and on the cause being called for trial, the party taking the commission must establish the grounds for a further stay, if there be any, for the re- turn of the commission. (Voss v. Fielden, 2 Sandf. 690; S. 0. 3 Code Rep. 202; Halleran v. Field, 23 Wend. 38.) Showing that the commission has been mislaid is a good excuse for delay. (Coles v. Thomson, 2 Caines, 47.) And where the place of residence of a witness is not exactly known, that is a good ground for enlarging the time. (Ferris v. Smith, 3 Caiues, 253.) So if the opposite party has. by his owu acts, delayed the return of the commission. {Bouchereau v. Le Gnen, 2 John. 176- Coles V. Thomson, supra.) 578 Chap. lO.J PROCEEDINGS TO A DECREE. 3Q5 The above is the English practice, and is founded upon the supposi- tion tliat the court has fixed some period for the return of the commis- sion. By the practice liere, if the court has fixed the time for the return of tlie commission, and it is not returned within that time, the opposite party can ch)se tlie proofs. If the commission is issued with- out an extension of the time to take proofs, the party can close the proofs, as if no commission had issued. (28) (28) A commission on boin^ retm-necl executed, must be filed in the office of the clerk of the court from which it issued, or, if the action be pending in the supreme court, in the oflBce of the clerk of the county in which the venue in the action is laid. (3 R. S. 5tli ed. 676, §§ 19, 20.) And the commission, return, depositions and exhibits thereto auucxed, must remain on file in the office of the clerk to whom the same were addressed, unless the court, l)y a special order, shall direct them to be filed in the office of some other clerk. They are at all times to be open to the in- spection of the paities, who shall be entitled to copies of such parts thereof as they may require, on payment of the fees allowed by law. (Id. 677, § 2"2.) The examinations and depositions taken under a commission issued, executed and returned, as directed in the statute, or an exemplification thereof when the originals are filed in any other county than that in which the cause is tried, may be ofered and used in evidence, on the trial of the cause by either party ; and every objection to the competency or.oredibility ot a witness so examined, or to the competency or relevancy of any question put to him, or of any answer given by him, may be niade in the same manner and with the like eflfect as if such witness were personally ex- amined at such trial.- (Ibid. ^ 23.) Upon the deposition of a witness taken under a commission being offered in evi- dence at the trial, the defendants objected on the ground that two cross-interrogato- ries were unanswered in part, but in what respect they were unanswered was not specifically stated. After the deposition had been received and read, the same ob- jection was renewed, and exception taken. Held, that it would be an unjustifiable exercise of discretion to suppress the entire deposition upon such a vague and in- definite objection, and that the refusal to do so was no gnmud for a new trial. ( Valton V. National Loan Fund Life Assurance Society, 22 Barb. 9.) It is only when the officer neglects to put the interrogatories as settled, or when the witness refuses to answer, that the deposition will be suppi-essed on the ground of the com- mission having been imperfectly executed. (Ibid.) Where pertinent evidence is given in answer to the genei'al interrogatory, to which the attention of the opposing counsel was not called by the others, if he desires to cross-examine the witness as to such evidence, he should apply to the court for relief before trial. It is not a ground for suppressing the whole deposition on the trial. {Commercial Bunk of Pennsylvania v. Union Bank of New York, 11 N". T. 203.) If any part of the evidence so given is incompetent or impertinent, such part may be excluded. (Ibid.) "Where depositions are offered to be read on the trial, and the other party objects to them on the ground that the interrogatories are leading, the question whether the interrogatories, and the answers thereto, are admissible, is one addressed to the dis- cretion of the court; and the same rule is to be applied to the case, which prevails where a witness is on the stand in court, undergoing a personal examination, at the trial. (Cope v. Siblei/, 12 Barb. 521; Hall v. Barton, 35 id. 274.) Such questions are, of necessity, left very much to the discretion of the judge at the trial ; and unless it appears that he has abused the discretion, so that injustice has been done, his decision will not be disturbed. (Ibid.) Where interrogatories are settled by a stip- tiiatioD of the attorneys, which states that snoli stipulation shall "have the same effect as the allowance of a judge, reserving all legal rights," neither party can object, on the trial, to the reading of the depositions, on the ground that the interrogatories are leading. (Ibid.) So where the interrogatories ai-e answered under a stipulation expressly saving " all legal exceptions." ( Williams y. Eldridge, 1 Hill, 249.) When a commission is directed to two, either or both of whom are authorized thereby to execute it, and the return is signed by only one of them, it will be presumed that he alone was present at its execution; although the words " by virtue of a commission to us directed " appear in the caption of thfe return. (Ibid.) 579 305 PROCEEDiyGS TO A DECREE. [Book I. Letters rogatoryJ] Where the government of a foreign country in wliich the witnesses proposed to be examined reside, refuses to allow ( lie commissioners to administer oaths to such witnesses, or to allow the commission to be executed, unless it is done by some magistrate or iudicial ofiBcer there, according to the laws of that country, letters ro- gatory must be issued, (r) (r) Commissioners are forbidden to administer oatiis in tiie Island of St. Croix. (6 Wend. 47(i ;) in the Havana, 1 Peters' C. (J. Rep. 236,) and in Sweden, (2 Ves. sen. 2:56.) The question as to the competency of the witneases must be determined on the trial of the cause. The court will not determine or prejudge the questicm in limine, upon affidavits. {Ch-aves v. Delaplaine, 11 John. 201).) A deposition cannot be ex- cluded solely for the reason that ittterest rendered the witue.ss incompetent to testify at the time the depositicm was taken; provided hi.s oral testimony would have been admitted at the trial, notwitlistaudiug such interest. (Fielden v. Lakens, 9 Bosw. 436 ; S. C. 6 Ab., ». S. 34 ; 3 Trans. App. 213.) An answer which is not responsive to an inteiTogatory may be objected to, on the trial, by either party, and the answer must be stricken out. (Lansing v. Coley, 13 Ab. 272.) In Williams v. Eldridge, (1 Hill, 249,) where there was a stipulation between the attorneys, that either party might receive the return of the commissioners, duly sealed, and deliver it to the clerk, which was done, it was held no objection to the' reading of the testimony that the direction on the return did not specify the clerk's residence, as required by section 16, sub. 4 of the statute. It will be presumed that the commissioner Who took the testimony chised and sealed the package himself, (ibid.) That the papers C(mipiising the return are connected by icafers only, is not au ohjecticm to the reading of the deposition. (Ibid.) A commissioner to take testimony is, qauad hoc, au officer of the court in which the proceeding is pending; and his signature, like that of the clerk to an office copy, will be judicialljr noticed, though his name be not written at length. ( Williams v. Eldridge, 1 Hill, 249.) On the same principle, the court will presume that the com- missioner discharged his duty, by doing all those things in the execution of the comn)ission which he is not bound to certify officially as done. (Ibid.) "Where, ou the return of a ccmiinission, it does not appear that the last general cross-interrogatory was put to and answered by the witnesses, the depositions cannot, in general, be read in evidence. But where the counsel of the parties were present, at the execution of the commission, and no objection was taken, at the time, to the imiissiun, the depositions will be received. {Brown v. Kimball, 25 Wend. 259.) It is not a vahd objection to a deposition that the eross-iuteiTogatories are not all answered ; where it appears that some of them are, in whole or in part, answered by reference to previous answers, and the latter are full and expUoit. {McCarty v. Edwards, 24 How. 23(). . But see Union Bank of Sanduskii y. Torren, 5 Duer, 626 ; 6. G. 2 Ab. 269.) J' , > Before the depositions taken under a commission can be read in evidence, the com- mission must be actually filed in the clerk's office. (Jackson v. Hobby, 20 John. 357.) The precise grounds (if objection to them must be pointed out, specifically and distinctly. General exceptions will not be available. (Ibid. See also, Van Garden v. Jackson, 5 John. 440; Jieekman \. Frost, 18 id. 544 ) The presumption of law is in favor of the validity of the proceedings; and in the absence of proof to the ecm- trary, the court will assume that the deposition was subscribed by the commissioner, as the statute requires ; and that the person executing the commission was the person to whom it was addressed. (Rust v. Eckler, 41 JST. T. 486.) A general objection, made before a deposition is read, to aU such parts thereof a.s involve matter of opinion of the witness on a particular subject, cannot avail the pjrty. The court cannot be called upon to scrutinize the testimony of witnesses, and decide for the party, to what particulars his objections shall annlv. Chamvmii V. Blanchard, 39 Barb. 111.) ^ ■' When a commission is defectively executed, the court may order it to be returned to the commissioner, in order that it may be amended. (Keeler v. Vanderpool, 1 Code Kep., U". S. 289.) Thus, where the commissioner refused to require an auswer to cross-inten-ogatories, because the party who framed had withdrawn them, and this without the consent of the other party, it was held that the commission could be re- 580 Chap. 10.] PROCEEDINGS TO A DECREE. 305 These are directed to any judge or tribunal having jurisdiction of civil causes in the foreign country, recite the pendency of the suit in 'this court, and that there are material witnesses residing at that place, without whose'testimony justice cannot be done between the parties; and then request the said judge or tribunal to cause the witnesses to come before them, and answer to the interrogatories annexed to the let- ters rogatory, to cause their depositions to be committed to writing and returned with the letters rogatory. This practice is derived from the civil law, by which these letters are sometimes called letter's requisitory. (s) A special application must be made to the court, to obtain an order for letters rogatory. And Mr. Hoffman supposes the court would allow them to issue, even without a commission having been previously sent ; on satisfactory proof that the authorities would not permit its execu- tion, {t) *T. BY THE COURT, AT THE HEAEING. [*306] The 67th rule of the court provides, that where a cause is at issue upon a replication to the plea or answer, and is in readiness for hear- ing, or to take testimony therein against all the defendants, if the complainant, or any of the defendants as to whose plea or answer a («) Xclson V. The United States, 1 Peters' C. C. Rep. 236. («) 1 Hoff. Ch. Pr. 48-2. turned foi- the purpose of taking such answers. ( Union Bank of Sandusky v. Torrey, 2 Ab. 269 ; S. 0. 5 Duer, 626.) But when a commission has been executed and returned, the court will not order that it be sent back to the commissioner for the purpose of enabling a witness to modify his testimony ; especially where the change will have the effect of contradict- ing a witness who has died since the exeouticm of the commission. (Eaney v. Weed, 1 Barb. 220.) If a party is examined as a witness, on a commission, his statements may be read as admissions, even it his answers would not be admissible by way of cross-examina- tion, if he were an ordinary witness. (Gellatty v. Lowery, 6 Bosw. 113, 122 ; Forrest V. Forrest, 6 Duer, 102; S. 0. 25 N. Y. 501.) A party who has caused a deposition to be taken does not necessarily, by offering parts of it in evidence, bind himself to read it all. The opposite party may, however, read the entire deposition as evidence, if he chooses. (Ibid; Weber y. Kingsland, 8 Bosw. 415.) Notwithstanding the deposition of a witness has been taken, in a cause, if he comes into the state before the trial, he may be examined. {Fisher v. Dale, 17 John. 343.) The declarations of witnesses whose testimony has been taken under a commission, made after the execution of the coramissifm, contradicting or invalidating their testi- mony, are inadmissible in evidence. Such evidence is always inadmissible until the witnesses have been examined upon the point, and an opportunity furnished them for explanation or exculpation ; and the rule applies as well when the testimony is taken under a commission as otherwise. {Brown v. Kimhall 25 "Wend. 259; Stacy V. Graham, 14 N. Y. 492; S. C. 14 Ab. 33.) An amendment of the pleadings will not -exclude, at the trial, a deposition pre- viously taken, when the amendment simply changes the technical issue, without altering the true issue between the parties. {Vincent \. Conklin, 1 B. D. Smith, 203.) If, in consequence of the amendment, either party wishes a further examination ol' a witness named in the deposition, a motion should be made for a further commission ; or, if his testimony is inapplicable to the new issue, a motion to snpptess the depu sition would be proper. (Ibid.) 581 306 PROCEEDINGS TO A DECREE. [Book I. replication has been filed, wishes to have the testimony taken in open court, at the hearing of the cause, he may apply for an order to that efiect. Within twenty days after the replication is put in, oi- within twenty days after the cause is in readiness for hearing, or to take testimony against all the defendants, he may give notice of an application to the court, for such an order for the first regular motion day, either in term or vacation. But such an order will not be granted, without sufficient cause shown, whether the application be opposed or not. Neither will such order be granted until the cause is in readiness for hearing, or to take testimony, against all of the defendants. Notice of the application must be given to such of the parties as have a right to take testimony in the cause. And to enable a defend- ant to give such notice to his co-defendants, where they appear by a different solicitor, the complainant's solicitor, as soon as the cause is in readiness to take testimony, must give notice thereof to each defendant to whose plea or answer he has filed a replication ; stating the names of the other defendants who have a right to take testimony, and the names of their solicitors. And the defendant is to have twenty days tliereafter to give notice of his application. As we have before stated, [u) notice need not be given of the names of solicitors of defendants against whom the bill has been taken as confessed. Upon the hearing of this application, the party making it must fur- nish the court with a brief abstract of the matters of fact in issue, not exceeding five folios. And either party may read or refer to the plead- ings of any of the parties who are entitled to take testimony in the cause, {v) To obtain this order, draw up an affidavit stating the nature and situation of the cause and the facts or " special cause" making it neces- sary or expedient to have the witnesses examined in open court at the hearing ; instead of being examined in the usual manner ; and serve a [*307] *copy, with the notice of motion, within the time specified in the 89th rule for special motions. TI. AS TO THE CREDIT OF WITNESSES. In what cases proper.] Formerly, when witnesses were examined in secret, if either of tlie parties wished, after publication had passed, to («) Ante. p. 290. (e) Rule 67. 583 Chap. 10.] FROCEBDI,\GS TO A DECREE. 3()7 impeach or discredit a witness examined by his adversary, he was obliged to exhibit articles for that purpose. And he could not do so, as a matter of course, but must have the sanction of an order of the court, to be applied for on notice to the adverse party. But now, since examinations of witnesses are to take place in pub- lic, upon notice to the opposite party, and after furnishing him with a list of the names of the witnesses to be examined, (w) articles are un- necessary; the more especially, as the adverse party has a right to be present at the examination, and cross-examine the witnesses. "Witnesses may be impeached, however, by examining other witnesses as to their credit, in the same manner as the witnesses sought to be impeached were tliemselves examined ; except that the names of wit- nesses examined as to the credit of other witnesses need not be fur- nished to the opposite party previous to the examination, (a;) Witnesses may be examined to discredit other witnesses, by proving that previously to their examination they had made declarations con- trary to their depositions, {y) At loliat time to ie Jiad.^ Examinations as to credit must be made during the running of the rule to produce witnesses ; unless some spe- cial circumstances prevent it ; as for example, where the witness to be discredited was examined under a commission which was not returned until after the time for producing witnesses expired. In such a case the court would open the order to close the proofs and give the party time to examine as to the witness's credit. Method of examining.^ The rule of evidence as to impeaching the credit of witnesses is the same in equity as at law. The inquiry must be general, as to the general character of the witness for veracity, [z) A party, in examining as to the credit of a witness, can only put gene- ral questions, as, " whether you would believe the witness upon his oath." {a) It is not competent, even at law, to ask the ground of that *opinion, but only the general question is permitted, (b) The [*308] regular mode of examining into general character is to inquire of the witnesses whether they have the means of knowing the former witness's general character, and whether upon such knowledge they would be- lieve him upon his oath, (c) A commission may be resorted to for the purpose of discrediting wit- nesses not residing abroad, when necessary, as well as in ordinary cases. Where a commission is required, it Avill, iu general, be directed to the (w) See Rule 74. (x) See Rule S:!. (V) Piffffott V. Croxhall, 1 Sim. &, Stii. 4(i7. (z) Tnmp v. Slicvwnod, S John. Ch. Rep. .'JoS. (a) Aiioo. 3 Ves. Jbli. 94. (b) Ciiiloa v. Brook, 10 Ves. Sa. (c) Pliil. & Amos' Ev. 925. 583 308 PROCEEDINGS TO A DECEgH [Book L same commissioners as were named in the former commission, {d) Bat ii commission will not be directed for the pui-pose of examining wit- nesses abroad ; unless in case of great emergency, and where it is sworn that no person here can prove any thing as to the witness's credit, (e) If a party, who has obtained a commission to examine a witness as to credit, delays the execution of it till after decree, he will be made to pay the costs. (/) The method of proceeding upon an examination as to the credit of witnesses, whether before the examiner, or under a commission, is pre- cisely similar to that employed in other cases. (39) (d) Wood V. Ilaramevton, 9 Ves. 145. (e) CaUaghan v. Kochfort, 3 Atk. fi43. (X) Wlilte T. Fussell, 1 Ves. & B. 151. (29) Examination of witnesses, generally. It is proYidea by rule 37 of the supreme court, that on the trial of issues of fact, one counsel, only, on each side, shall examine or cross-examine a witness, and One counsel, only, i, 3 How. Pr. 412; Biasell v. BissM, 11 Barb. 96.) If no notice of trial has been given, or the notice is clearly in-egular or iusntficient, a verdict obtained by the plaintiff will, on proper application, be set aside. (Jenks V. Payne, 15 John. 399.) When all the defendants appear, but one or more of them does not put in an an- swer, it is necessary to give them all notice of trial — those who do not anssver as well as those who do. {Tracy v. New York Steam Faucit Co. 1 E. D. Smith, 349.) The provision in section 256 of the Code, that in the first judicial district there need be but one notice of trial from either party, does not apply to notice of argu- ment on an appeal to the general term. ( Walsh v. Ch-egory, 19 Ab. 303.) When there are two or more acti(ms pending between tbe same parties, one of which ouly is noticed for trial, the notice will be considered insufficient, unless it specifies which action is meant to be brought to trial. {Lisher v. Panuelee, 1 Wend. 22.) Unless all the defendants have been served with the summons, or have appeared in the action, it cannot be brought on to trial by one or more of the defendants who have been served. (Morris v. Crawfoi-d, 16 Ab. 124 ; Ward v. Dewey, 12 How. Pr. 193.) WhOe a judgement rendered on issne joined without notice of trial, or appearance at the trial, is not ipso facto void, it is irregular, and liable to be vacated on motion. {People ex rel. Barrett v. Bacon, 18 Mich. 247.) The plaintiff must serve a notice of trial upon eveiy defendant who has separately appeared in the action, either by attorney or in person ; otherwise he cannot bring on the cause as a.gainst those with respect to whom he had omitted so to do. (Van Sant. Eq. Pr. 329.) Under ordinary circumstances it is not necessary for a defendant to serve his co- defendants with a notice of trial ; yet it has been recommended as prudent practice 591 312 r'lfocRKDiy^as ro a DEcnKE: .[BodK- li If the complain ill it does not I'eply to the defendiint's answer witliiii ten days after it is deemed to be sufficient, ,the cause will stand for hearing on bill and answer ; and either party may notice it for hearin j as soon as it is in readiness for hearing' against the other defendanti if there are any. (5). It is not necessary to obtain an order, to set the cause down for hear ing. (c) Notices of hearing must be served npon the opposite party, whero [*313] his *solicitor resides over one hundred miles from the place where the court is held, at least eight days before the commencement of the term ; if he resides over fifty and not exceeding one hundred miles from such place, six days ; and in all other cases at least four days previous to the term, (c?) Causes mnst be noticed for hearing for the first day of term, or for as early a day in term as practicable. But if a cause is not in readiness for hearing in time to notice it for the first day in term, it may be (6) Eule 65. (c) Rule 88. , ((fl Rule 89. to do so where a defendant seeks affirmative relief as against his co-dofendants. (1 Whit. Pr. 596.) Although notice of trial may be given immediately on issue being joined, yet a notice so given is liable to be defeated if, between the time of service and the sitting of the conrt. the opposite party amends his last pleading, which, of conrse, raises a new issue that requires to be noticed anew. (Van Sant. Eq. Pr. 339.) It seems, however, the plaintiff is not bound to proceed immediately on joining issue, but may wait until the time to amend has expired, and even a reasonable time to prepare for trial after that, before he will be in default for not bringing on his cause, under Kule 27 of the court. (Id. 330.) But when the defendant has given notice of trial, he waives his right to amend, and the plaintiff, after a reasonable time to prepare, is bound to go on. (Ibid.) In form, the notice of trial is similar in all respects to that in use in actions at law, except that the intention to take an inquest Ahould not be inserted, because an inquest is not appropriate to an action of an equitable nature. (Van Sant. Eq. Pr. 330.) Issues of fact, in equity cases, m&y be noticed and placed npon the calendar of either a circuit court or special term in the county where the action is triable, unless an issue has been ordered to be iried by a jury, in which case the action must be placed on the circuit calendar. The special term at which an equity cause can be noticed, however, is a special term appointed for the trial of equity actions and issues of law, and not a special term for the hearing of motions only. The latter kind (except in the first jndicial district) have no calendars. (Tan Sant. Eq. Pr. 331.) The action must not only be in readiness fin' trial as between all the parties, but it must also have been noticed for trial by all the defendants who have a right to ap- pear on the trial and move fin- judgment against the plaiutiflF. "Where the action has liot been noticed for trial by tlie plaintiff, and only one of several defendants who have appeared and answered has noticed it, no effectual trial can be had. The plain- tift cannot be forced to a trial in such a case. {Ward v. Dewey, 12 How. Pr. 193; Tracy v. K Y. Steam Faueit Mamif. Co. 1 E. D. Smith, 349; JSuniham v. De Be- vorse, 8 How. Pr. 159; Powell v. Finch, 5 Duer, 666.) If a plaintiff lails to prose- cute his action against several defendants with diligence, one of such defendants may, in a proper case, and upon motion for that purpose, have the action dismissed as against him, leaving it to stand against the other defendants. In such a case a notice of trial will be of no avail, unless given by all the defendants who are parties to the Issues to be tried. (Ibid.) The same notice of trial is required where the hearing is before a referee as when the trial is before a jury or before the court. ( Welter v. Schlieper, 7 Ab. 92.) 592 Chap. 11.] PROCEEDINGS TO A DECREE. 323 placed at the foot of the calendar ; and if the bill has been taken as confessed, may be heard out of its regular order, (e) Note of issueJ] (2) The solicitor noticing the cause for hearing, must furnish the register, assistant register, or clerk, who is to make up the calendar, with a note of issue specifying the class to which the cause belongs, and the time from which it is entitled to priority. This must be furnished at least four days before the commencement of the term. (/) Notice to the register to set down the cause, is not necessary, or tax- able ; the note of issue being all that is necessary. ( g) Case and ahlreviation of pleading s.\ When a cause is heard or sub- mitted, if the parties do not agree upon a case to be signed by them, containing, with all requisite brevity, a statement of the pleadings and proofs, the complainant must furnish the court with a case. This should state the times of filing the bill and other pleadings, the names of the original parties, the change of parties, if any has taken place, and a very brief history of the proceedings in the cause. And it should contain an abbreviation of the pleadings, not exceeding one sixth of the number of folios contained in such j)leadiugs. {h) Method of making up the calendar l\ (3) In making up the calendar, {el Rule 93. (/) Mem. {^1 Doe V. Green, 2 Paige, S47. ( ft ) Kule 90. (9) The Code requires that the party giving notice of trial shall furnish the clerk, at least eight clays before the court, with a note of the issue, containing the title of the action, the names of the attorneys, and the time when the last pleading was served ; and the clerk shall thereupon enter the cause upon the calendar according to the date of the issue. (Code, % •I'n^.') In the first judicial district there need be but one note of issue from either party, and the acticm shall then remain on the cal- endar until disposed of, and when called, may be brought to trial by the party giving the notice. (Ibid.) In every acti(m in the supreme court of the first judicial dis- trict or in the superior court of the city of New York, tlie party who shall file a first 'note of issue of fact, shall, as a condition precedent to such filing, pay to the clerk of the court the sum of three dollars, (towards the stenographei-'s fund.) (Ibid.) The notes of issue to the clerk should always show what the issue for trial is, so that the causes may be placed on the calendar, and called in their relative order. (Per B. i). Smith, J. 13 How. Pr. 345.) The court will not fix the date as of which the cause shall be placed on the calen- dar ■ and if it is placed there as of a wrong date of issue, ihe en-or may be corrected, on motion, at the circuit. (A'ora v. Sargent, 14 Ab. 5>-24.) The defendant, as well as the plaintiff', should file a note of issue, if he designs to compel the plaintifi' either to proceed with the action or be driven out of Court ; 1iir there can be no dismissal of the complaint until the cause is on the calendar. (Van Sant. Eq. Pr. 330.) And it has even been held that it cannot be dismissed until put regularly on the calendar ; that is, placed there by the party giving the notice, on a regular note of issue filed eight days previous to the sitting of the court. (Broiva- ing V. Paige, 7 How. Pr. 487.) In the New York superior court, the New York common pleas, and in the first and second judicial districts, special rules have been adopted in regard to filing notes of issue, (fee, which can readily be consulted. (Van Sant. Eq. Pr. 330.) So, also, in the 3d and 4th judicial departments. (See "Wait^s Code, 87ti, 880.) (3) Section 257 of the Code directs that the issues on the calendar shall be dis- posed of in the following order, unless, for the o(mveuience of parties, or the dis- Vol. I.— 38 593 313 PROCEEDINGS TO A DECREE. [Book I. the causes to be heard are arranged in tlie following classes. 1st. Causes to be heard on bills taken as confessed, -which are entered according to priority from the date of the order to take the bill as confessed. 2d. Pleas and demurrers; which have priority from the time of filing the • patch (if Ijusiuess, the court shall otherwise direct: 1. Issues of fact to be trieil by a jnry ; 2. Issues of fact to be tried liy the court ; 3. Issues of law. By chapter 433 of the Laws of 1869, § 5, actions by widows for doiver are, in cer- tain cases, to have a preference upou the calendar of the court. By section 1 of chapter 49 of the Laws of 1870, actions in which executors niirl administrators are sole plaintiffs or sole defendants, and actions for the constrtictinu of, or adjudication upou, a will, in which the administrators with such will annexed. or the executors of such will, are joined as plaintiffs or defendants with other ])ar- ties, shall have a preference in the court of appeals, and in the supreme court at tlie : general, special, and circuit terms thereof, over all actions, except in crinn'nal cnsp-i. and may be moved out of their order accordingly. Certain actions bronghl by the attorney qeneral are also to have a preference on the calendar. (Laws of IfJ.oO, ch. , 128; Laws of ia58, ch. 37.) Rule 48 of the supreme court directs that the clerk shall prepare a calendar for the general term, and cause the same to be printed for the use of each of the justices holding the court. Appeals shall be placed on the calendar according to the date of the service of the notice of appeal, and other eases as of the time when the ques- , tion to be reviewed arose. Cases entitled to a preference shall be placed on a sep- arate calendar. By rules adopted for the third judicial department, Feb. 7, 1871, provision is made for a calendar of appeals from orders. (See "Wait's Code, p. 846, 878, 880.) By rules adopted for the fourth judicial department, June 8, .1870, provision is . made for the calendars of the courts in that department. (See Wait's Code, p. 879.) Inquests may be taken in actions out of their order on the calendar, in eases in which they were heretofore allowed, at the opening of the court, on any day after the first day of the court, provided a sufficient affidavit of merits shall have been filed and served. (Rule 36.) The pi-ovisiiras of 2 Rev. St. 4,')9, § 11, are still in force, viz: "that every issue in an action cm any evidence of debt against a eorporati(m shall have a preference on the trial and argument thereof in any court where the same may be pending," {Brainard v. Neio York 4- Harlem R. B. Co. 23 How. 491.) The court has entire control over its calendar, and ujay regulate the order of the trial of the cases brought before it. (Maretzek v. Cauldaell, 4 Rob 666.) At the circuit, Issues of fact to be tried by the jury should he placed first on the calendar, in their order, according to the dates of their respective issues. Demurrers, and other issues ol^ Jaw and issues of fact to be tried by the court, should be placed by themselves, forming a separate class, as at the special tenn. DemuiTers have the preference, and then other issues of law and issues of fact to be tried bv the court last. This is the only rational method of getting over the inconsistency of re than a sum named, which is less than that claimed in the complaiut. (Dolan v. Petti/, 4 Sandf. 673.) Where a partner, by his answer, admits that he has iii his hands partnership funds, which on his statement appear to belong to the administrators of his deceased part- ner, he will be ordered to pay over such fuiuls to them, although there are outstand- ing contested claims against the firm, and it has claims to enforce which will require time and disbursements. The order for such payment will, however, require the administrators to give security to the surviving partner to contribute to the outstand- ing claims, if established, and to pa\- their share of the expenses that ma,y be incurred in prosecuting the demands of the firm. (Roberts v. Lam, 4 Sandf. 642.) The sur- viving partner will alst) be permitted to retain sufficient to cover such claims against the deceased partner as are contested in the suit in which the order is made. (lb.) The order is obtained at special term, on the usual notice of motion or order to show cause. N"o papers, except the pleadings, are required on the argument, and consequently nothing is necessary to be served on the opposite attorney, except the notice of motitm. (Van Sant. Eq. P. 239.) The order will not be made where the defendants, by their answer, admit that they have in hand the fund which the plaintiff' seeks to have paid over to him. but allege that they are ignorant whether the fund belongs to the plaintiff or a third person who claims it, and ask that they may be peruiitted to pay the money into court, m that the court maj- make some order in respect to its iipplieation. (Bender v. Sherwood, 15 How. Pr. 'i58.) This remedy is extraordinari' and severe, and should be granted only iu a case clearly within the teruis and spirit of the statute. (lb.) A provi- sional remedy is only auxiliary to the ultimate relief, and should never n-!urp or an- ticipate the office and effects of a trial on the merits. (Popper v. Scheidcr, 33 How. 34 ; S. C. 7 Ab., ». S. 56 ) \Vhere a fund in litigation has been brought into court, and the defendant admits that a part of the fnnd is due to the plaintiff, the court may order the part so admit- ted to be due to be paid over to the plaintiff', without prejudice to his further claims. The circumstance that the defendant, both before and after the action was brought, has oft'ered to pay to the plaintiff' the sum so admitted to be due, provided it should be accepted in full satisfaction, or that he has offered to allow judgment to be taken for that sum, is no reason for refusing such order. (Merritt v. Thompson, 3 E. D. Smith, 599.) It seems that where a defendant is insolvent, or unable to make present payment, offers to suffer judgment to be taken, pursuant to 5 385 of the Code, or makes the like off'er in his answer, the court will be careful not to substitute an order that he pay the monej', under § 244, to be enforced by an attachment for contempt, and the taking of Jiis body in the place of an ordinary' judgment and execution. (Ibid. ; Myers v. Trimhle, i E. D. Smith, 607 ; S. C. 1 Ab., JS". S. 399 ; Qiiijitard v Secor, 3 E. D. Smith, 614.) But when the un)Ui'y is iu court, and the defendant ad- mits the sum due, and offers to pay it, the order should be granted. (Ibid.) It seeim that on appeal from such an f the couuty where the same shall be pending. Such stipulation shall specify the place of trial or hearing, and shall be filed in the office of tbe clerk of the court ; and such trial or hearing shall be brought on upon notice as in other cases, unless the time thereof shall be fixed by such stipulation. (Laws of 1847, p. 646, § 41.) An action brought to obtain the judgment of the court that a conveyance of real estate by the defendant is fraudulent ; the plaintiff' seeliing, by this means, to appro- priate such property to the payment of his judgment; is an action bronght for the de- termination of interests in real property, and must be tried in the county in which it is situated. {Woud y. UolUster, 3 Ab. 14.) In Leland v. Hathorn, (9 Ab., iST. S. 97 ; 42 IST. T. 549.) where an action was brought to I'estrain the defendant from build- ing a bridge across a public street, which structure, it was claimed, would injure the property of the plaintiff, the court of appeals held that it was a hical action, and must be tried where the property was situated. An action to set aside a statutory foreclosure of a mortgage on real property, and to redeem the laud from the mortgage, is not local, and not necessarily to be tried within the county where the land is situated. {Hubbell v. Sibley, 4 Ab., JJ". S. 403.) An action brought by the people, and prosecuted by the attorney genei'al, comes within the 2d subdivision of section 124 of the Code. {The People v. Hayes, 7 How. Pr. 248.) When tbe act of an officer Is beyoud the scope of the authority of his office, he is not protected by that section; but when, in performing an act within the scope of his authority, he commits an error, or even abuses the confidenoe which the law reposes in biui", he is still entitled to the protection of the statute. (Broicii v. Smith, 24 Barb. 419.) "Where a public officer is sued for an official act, he may waive the statutory provision that, unless it appears upon the trial that tbe act was done within the couuty where the trial was had, the jury shall be discharged, and a judgment of discontinuance entered, the omission to raise the objection, upon the trial, will be rcarded as a waiver, by which the defendant is concluded. (Rowland v. Willetts, .5 Saud. 219; S. C. 9 N. Y. 171.) The section of the judiciary act requiring the venue to he laid in a county where some of tbe parties resided, means parties in interest and not nominal parties to the record. (Hart v. Oatman, 1 Barb. 229 ; Henry v. Ban^ of Salina, 5 Hill, 523.) In an action in the nature of a quo warranto, the place of trial may properly be laid in any county in the state. The people are a party whose residence extends to every county. (People v. Cook, 6 How. Pr. 448.) A railroad cfmpany may be treated as an inhabitant and freeholder in each county where its track is laid. (Sherwood v. Saratoga 4" ^c^^i- -R. -^2. Co. 15 Barb. 650; Jielden v. New Yorl f Harlem li. B. Co. 15 How. Pr. 17. Contra, Wilde v. N. Y. f Harlem B. B. Co. 1 Hilt. 302.) Coi-porations, created under the laws of this state, are residents of the county where the office of the company is located and its general business earned on. (Conroe v. The National Protection Ins. Co. 10 How. Pr. 403.) The fact that such a corpora- tion has an office in another c(ranty, where some of its business is done, does not change, or affect its residence. (Hubbard v. Nat. Protec. Ins. Co. 11 How. Pr. 149. See Pond v. Hudson Biver B. B. Co. 17 id. 543.) A foreign corporation, having an agency and business office in one of the counties 605 3]^ 7 PROCEEDINGS TO A DECREE. [Book I. submissions must be in -writing, signed by the parties or their counsel or solicitors, and must be delivered to the register, assistant register, or clerk, where the court is held, with the necessary copies and papers. (?6') As to what papers are necessary, see ante, p. 314. On special motions and petitions as well as in calendar causes, the register, &c., must mark the papers and note them in his minutes, as on a hearing ; and he is not to enter the submission until all the neces- sary copies and papers are furnished, {x) (w) Rule 97. ix) Rule 97. of this state, is not a resident of such connty, within the meaning of section 125 of the Code. {International Life Assurance Co. \. Sweetland, 14 Ab. 240.) The place of trial of a transitory action should be in the county where the principal transactions between the parties occurred, and where it appears the largest number of the witnesses who know anything of the I'acts, reside. A majority of witnesses should not, necessarily, control. (Jordan v. Garrison, 6 How. Pr. 6 ; S. C. 1 Code Eep., 17. S. 400 ) Except so far as the place of trial of actions for injuries to the person has been regulated by statutes, (2 Rev. St. 409.) such acticms have always been regarded as transitory, and triable in any county where the plaintiff might elect to bring his ac- tion. (Melvor v. McCabe,'l6 Ab. 319 ; S. 0. 26 How. 257.) The common law maxim that the domicil of the wife follows that of the husband, has no application in actions for a divorce, where separation has actually taken place, and where the verj' proceedings in the action are to show that the I'elation of husband and wife should be dissolved, or so far modified as to establish separatl interests, and especially of bed and board, and domicil and home. In such a case, the law will recognize the wife as having a separate existence and separate rights. Hence, in an action for a divorce a mensa et thoro, for cruel and inhuman treatment, the plaintiff may bring the action in the county where she a-tually resides when it is commenced ; although the defendant resides in another countjf, where both parties formerly re- sided. ( Vence v. Veiice, 15 How. Pr. 497 ; id. 506, note.) "When an action is referred to a referee, although it is the better practice, it is not necessary that the referee should fix the time and place of hearing, in writing. (Stephens v. Strong, 8 How. Pr. 339 ; Sage v. Moslier, 17 id. 367.) The place of meeting need not be the same as the place of trial mentioned in the complaint. ( Wheeler v. Ahdtland, 12 How. Pr. 35 ; Newland v. West, 2 John. 188.) In (u-der that the witnesses may be more conveniently examined, an order of reference may give the referees leave to meet in a county different from the one named in the com- plaint as the place of trial. (Pierce v. Voorhees, 3 How. Pr. Ill ) The city court of Brooklyn being a court of special and limited jurisdiction, a referee appointed by it has no power to try a cause in the city of New York. (Bonner v. McPhail, 31 Barb. 106.) Rule 33 of the supreme court directs that when a reference shall be ordered, the same shall be executed in the county in which the action is triable, unless the C(mrt Bhali otherwise order. Changing place of trial. The court may change the place of trial in the following cases : 1. When the county designated for that purpose, in the complaint, is not the proper county ; 2. "When there is reason to believe that an impartial trial cannot be had therein ; 3. "When the convenience of witnesses, and the ends of justice, would be promoted by the change. (Code, § 126.) When the place of trial is changed, all other proceedings shall be had in the county to which the place of trial is changed ; unless otherwise provided by the consent of the parties, in writing, duly filed, or order of the court ; and the papers shall be filed or transferred accordingly. (Iljid.) It has been held that, under the Code, every action is so far transitory that the plaintiS' may, with impunity, lay the venue in any county in the state. But if the proper county is not selected, the defendant has the right to have the place of trial changed. (Souck v. Lasher, 17 How. Pr. 520.) To secure this right, however, two things are necessary : 1st. He must, within a limited time, make the demand pre- 606 Chap. 11.] FiiccEEDnyGS to a decree. 317 Course of proceeding.'] Where the cause is heard upon pleadings and proofs, the comph\iiuuit opens. The order of proceeding is as fol- lows: The complainant's bill is first opened, or the substance of it briefly stated, and the defendant's answer also by the junior counsel, (if there is -more than one counsel ;) after which the same counsel states the case and the matters in issue, and the points of equity arising there- from ; and then such depositions and parts of the defendant's answer scribed by section 12fiof ihe Code, and then, unless the change be made by consent of parties ; 2d. An order of the court, directing the change, must be obtained. Un- less both these requirements are complied with, the plaintiff may bring his action to trial in the connty selected by him for that purpose. (Ibid.) Corporations created under the laws of this state are residents of the county where the office of the company is located and its general business earned on ; and where the plaintiffs are non-residents, such corporation defendant is entitled to have the action tried in the county where it is located. And if the proper county is not des- ignated in the complaint, tbe court, on application, will change the place of trial. {Conroey. National Protec. Ins. Co. 10 How. Pr 403.) In the Iiiteriiatiotial Life Assnr. Co. v. Sweeiland, (14 Ab. 240,) where the plaintiff was a foreign corporatiiin, and the defendant a resident of this state, it was held that the proper county for trial was that in which tbe defendant resided, and that the fact of the plaintiff having an agency in this state did not affect the question. (In Beardsley v. Dickerson, (4 How. Pr. 81,) the cause of action arose in Saratoga connty, the venue was laid in Rensse- laer county, and the defendant served a written demand that the action should be tried in the city of H"ew York. It was held that the defendant was irregular in not demanding trial in the proper county (Saratoga.) On motion, however, to change the place of trial from Rensselaer to ifew York, where all the parties resided, upon the merits the motion was granted. A motion to change the place of trial cannot be made before issue joined. {Mixer V. Kuhn, 4 How. Pr. 409 ; S. C. 3 Code Kep. 106 ; Suhbard v. National Frotec. Ins. Co. 11 How. Pr. 149; Hinchman v. Butlei; 7 id. 462. But see Myers v. Feeter, 4 id. 5240; Selienck v. McKie, id. 246; Merrill v. G-rinnell, 10 How. Pr. 32.) But it may be made at auy time after issue and before trial had. (Tan Sant. Eq. Pr. 257 ; Mer- rill V. Grinnell, supra.) The demand may be made at the time of putting in the answer. (Mairs v. Bern- sen, 3 Code Rep. 138.) But the defendant need not move to change the place of trial until after the time to amend the complaint expires. {Conroe v. National Pro- tec. Ins. Co. 10 How. Pr. 403.) The time to answer is deemed to have expired on seiwice of the answer. Hence, a demand that the trial be had in the proper county, made after answer, comes too late, and may be disregarded, although the answer was put in before the time for an- swering had expired. (Milligan v. Brophy, 2 Code Rep. 118.) In an action for the foreclosure of a mortgage, the court is not expressly author- ized to change the place of trial where the county designated for that purpose in the complaint is'not the proper county. A demand to change the place of trial, and a consent or order of the court thereon, are essential to change it. {March v . Lowry, Ifl How. Pr. 46; S. C. 26 Barb. 197.) The motion to change the place of trial must be made in the judicial district, or a county adjoining the one designated by the plaintiff' in his complaint. {Bangs v. Seidell, 13 How. Pr. 163, 375 ; Chubhuck v. Morrison, 6 id. 367 ; Beardsley v. Dick- erson, 4 id. 81 ; Askins v. Reams, 3 Ab. 185.) On a motion by one of several defendants to have the trial in the proper county, notice of the motion must be given to the defendants who do not move. {Mairs v. Benisen, 3 Code Rep. 138 ; Welling v. Sweet, 1 How. Pr. 156 ) The court will order a motion to stand over in order that notice may be given to such defendants as have not been served. (Ibid.) The object of the demand that the trial be had in the proper county, is to allow a demand is made, and the plaintiff' neglects or refuses to procure the change, the G07 31 7 PROCFKinxaS to a DECRKK. [Book T. as are considered essential, are read by the complainant's counsel. After the complainant's evidence has been read, the opening connsel for the complainant makes his observations and arguments. Then the defend- ant's connsel go through the same process for him. The leading coun- sel for the complainant is then heard in reply, and concludes the argu- ment. Where a replication to the answer has been filed, and the cause is defendant may move to have the place of trial changed to the proper county. {Mairs V. liemsen, 3 Code Rep. 138; Moore v. Gardner, id. 24 ; Husbrouclc v. McAdam. id. 39; S. C. 4 How. Pr. 342.) "When one of the parties resides in the state, the vemie in the complaint is to he fixed iiTespective of the convenience of witnesses. Hence, a motion to change the place of trial to the proper county cannot be opposed on that o-rouud. A change of the'place of trial for the convenience of witnesses is properly made when the venue ha.s been fixed in the proper county. {Moore v. Gardner, i Code Eep. 224 ; S. C. 5 How. Pr. 243.) In EincUm.anv. Butler, (7 How. Pr. 462.) a notice of motion to "change the venue, or place of trial," was held sufficient. The denial of a motion to change the place of trial, made by one defendant, does not prejudice another defendant subsequently served with a summons in making a similar motion. {New Jersey Zinc Co. v. Blood, 8 Ab. 147.) Under a general clause in a notice of motion, a.sking for other and further relief, the party is not entitled to costs of the motion. But when costs are asked for in the notice, costs to abide the event will be allowed, whether the motion be granted or not. (Northrop v. Van Dusen, 3 Code Rep. 140.) In an action affecting the title to lands, the court may change the place of trial as a matter of right. {Starks v. Bates, 12 How. Pr. 465.) The form of the affidavit of merits upon auoh a motion should correspond with the practice and decisions previous to the Code. Three things must distinctly ap- pear : Ist. That the defendant has fully aud fairly stated the case to his counsel, statiug his name aud residence; 2d. That he is advised by his counsel that he has a good and substantial defence on the merits ; 3d. That he believes that he ha-s such defence. {Lynch v. Mosher, i How. Pr. 86; S. C. 2 Code Rep. 54.) An affidavit which states that the defendant has a good aud substantial defence on the merits, and that the witnesses named are material, as he is advised by his counsel, and " as he believes truly," is defective. (Ibid.) So of an affidavit that the defendant has stated "the facts of his defence" to his counsel, instead of "the case; {Richards v. Swetzcr, 1 Code Rep. 117 ; S. C. 3 How. Pr. 413;) or an affidavit which states that the deponent has stated "his case in this cause" to his counsel, instead of "the ease," a.s required by Rule 29. {Ellis v. Jones, 6 How. Pr. 296.) But an affidavit alleging that the defendant has fully and fairly stated " the facts of this ca.se " to his counsel, has been held sufficient. {Jordan v. Garrison, 6 How. Pr. 6; S. C. 1 Code Rep., N. S. 400.) Rule 60 of the supreme court provides that, " in addition to what has usually been stated in affidavits ccracerning venue, either ])arty may state the nature of the con- troversy, aud show how his witnesses are material, aud may also show where the cause of acti(m, ox the defence, or both of them, arose ; a,nd those facts will be taken into consideration by the court in fixing the place for trial." It is said by Sill, J., in Mixer v. Kuhn, (4 How. Pr. 409; S. C. 3 Code Eep. 106,) that the above rule does not require a defendant to disclose, in his affidavit, the mat- • ters which he intends to set up in his answer. He may do so ; but if he prefers, may omit it. Tery little reliance can be placed upon an allegation of the materiality of wit- nesses, unless it is shown wherein they are material. But when no witnesses are shown to reside in the county where the venue is laid, the place of trial may be changed upon such an affidavit. {The People v. Hayes, 7 How. Pr. 248.) Au affi- davit specifying the county where the witnesses reside, is sufficient without statin" the city, village or town. (Bleecker v. Smith, 37 How, 28.) The party swearing to the greater number of witnesses will not necessaiily be successful where the facts which they are to establish can be as effectually presented on the trial by a lesser number. '{Jordan v Garrison, 6 How. Pr. 6 ; S. C. 1 Code Rep., N". S. 400 ; Price 608 Cliap. ll.J PROCEEDIXOS TO A DECREE. ?,\*J heard upon pleadings and proofs, the allegations set up in the answer, and which are not responsive to the bill, must be proved, or the de- fendant cannot avail himself of them at the hearing, [y) Where there are two defendants, who set up adverse claims, the course of practice is for the complainant to open ; for the defendant who sets up a claim against the other then to go on, and for the other (y) Simpson v. Hart, 14 John, 63. V. Fort Edioard Water Works Co. 16 How. Pr. 51 ; Goodrich v. Vanderhilt, 7 How. Pr. 467.) The uuniber of witnesses is no longer regarded as coutrolliag, but the character and materiality of their testimony, the nature of the action, and the proba- ble facility which will be afforded, or delay which may be occasioned in obtaining a speedy trial, will be considered in determining the propriety of the change. (Van Sant. E((. Pr. 25B.) The place of trial of a transitory action shonld be in the county Avhere the principal transaction between the parties occurred, and where it appears the largest number of witnesses who know anything of the facts reside. {Jordan v. Garrison, siq>ra.) The place of trial should be in the county where the witnesses reside, even though they may be required to travel a greater distance than to the court house in an ad- joining county in attending court. (Tfte People v. Wright, 5 How. Pr. 23 ; S. C. 3 Code jSep. 75.) The place of trial may be changed (ra the ground of public excitement, although no effort has been made to try the cause, or even to impanel a jury, in the county wliere the venue is laid. (Budf/e v. Northam, 20 Plow. Pr. 248; People v. Long Is- land B. R. Co. 16 id. 106; S. ij. 4 Park. Cr. E. 602. But see Peo])le v. Wright, 5 How. Pr. 2;^ ; S. C. 3 Code Eep. 75.) Kule 59 of the supreme court provides that no order to stay proceedings for the purpose of moving to change the place of trial shall be granted, unless it shall ap- pear from the papers that the defendant has used due diligence in preparing the motion for the earliest practicable day after issue joined. Such order shall not stay the plaintift from taking any step, except subpoenaing witnesses for the trial, without a special clause to that effect. On presenting to, and filing with, the officer granting the order, an affidavit showing such tiicts as will entitle the plaintiff', according to the settled practice of the court, to retain the place of trial, the officer shall ro.voke the order to stay proceedings, and the plaintiff' shall give immediate notice of such revo- cation to the defendant's attorney. When the convenience of witnesses is the ground of a motion to change the place of trial, it should not be made until after issue is joined. (Hubbard v. National Protec. Ins. Co. 11 How. Pr. 149 ; Merrill v. Grinnell, 10 id. 31 ; S. C. 12 N. Y. Leg. Obs. 286: Sinchman v. Butler, 7 How. Pr. 462; Bartman v. Spencer, 5 id. 135.) . A demand is not necessary before making a motion to change the place of trial for the convenience of witnesses. {Hinchman v. Biitler, supra.) "Where, after demand made, tlie defendant served his answer and motion papers for a change of venue, (for cb Barb. 344 ; S. C. 38 How. 228 ; 7 Ab., N. S. 265.) Issues of fact, in common law actions, must be tried by a jury, unless the parties choose to waive this right. But it is for the court to say, in other cases, whether an issue of fact shall be tried by a jury, or by the eoui't without a jury. {Church v. Freeman, 16 How. 294.) Upon the application of either party, upon ten days' no- tice, for such a trial, the court may or may not direct that the issues be tried by a jury. But if the application be denied, or if no application be made, the court still has the power at the trial, to order the whole issue, or any specific questicm of fact involved therein, to be tried by a jmy. (Ibid.) The failure of one of the parties to appear at the trial is by no means a waiver of a jury trial, under section 266, subd. I, of the Code. (Sendricks v. Carpenter, 4 Rob. 655 ; S. C. 2 id. 635; 1 Ab., S". S 213.) "Where the defendant does not a.ppear, the plaintiff may i^'aive a jury trial, a.nd take an inquest before the court in an action, at the circuit, irat of its regular order on the calendar. It seems that this should be done before the jury are dischai'ged for the circuit. {Haines v. Davis, 6 How. Pr. 118.) "Whore a defendant excepts to the findiug of facts, and to the conclusiy the court and jury, unless the plaintiff elects to treat the failure of the defendant to appear a.- a waiver by him of a trial by jury, in which case the issues may be tried by the court. But the plaintiff cannot have the damages as.sessed by a sheriff's jury. {Giberton v. Fleisckel, 5 Duer, 652 ; Dolan v. Petty, 4 Saudf. 673.) Althougli the defendant fails to appear on the trial, it is nevertheless incumbent upon the plaintiff to prove all the material allegations of the complaint which arc denied in the auswer, to entitle him to judgment. (Patten v. Hazewell, 34 Barb. 421.) Setting aside an inquest is discretionary with the court ; but an inquest should not be set aside unless the court is satisfied that the defendant has evidence which would materially reduce the amount of the recovery. (Leighton v. IVood, 17 Ab. 1/7.) Tne court will not open an inquest on the ground that the counsel was en- gaged before a referee or another court, and a material witness was absent; ( Ward V. liackman, 23 How. Pr. 330; S. 0. 32 id 616. n. ; Morris v. Slater//, 6 Ab. 74;) or where it appears that the answer was insurficient, or frivolous; (Hunt v. Mails, 1 Code Rep. 118;) or because the action was improperly brought in the names of hus- band aud wil'e; or for a variance between the complaint and judgment aud the proof; (u' because an amendment was allowed, by which the auiouut of the plain- tiff's recovery was increased; (Burger v. Baker, 4 Ab. 11 ;) or where the (mly de- fence was usury. (Morris v. Slater/j, 6 Ab. 74; Parish v. Corlies, 1 Daly, 274.) A moti78 ; Baiikin v. Pine, 4 Ab. 309 ; liobinson v. Hud- son liiver li. H. Co. 3 id. 115; S. C. 1 Hilt. 144; Conolly v. Conolly, l(i How. Pr. 224.) It does not follow that because a party has omitted to make a case the appeal should be dismissed. (Ibid ) A general exception to a charge, and to every part of it, when the charge involves more than a single propcsitiou of law, a,nd is not in all respects erroneous, presents no question for review upon appeal. {Jones v. Osgood, 6 IST. T. 233 ; Walsh v. Kelly, 40 N. Y. 556 ; Stone v. Western Transp. Co. 38 id. 240 ; Kluender v. Lynch, 4 Keyes, ;:!ol.) It is the duty of the counsel to point out at the time in what respect the charge does not conform to the requests. It is not the duty of the court, by com- paring every portion, ttf see if there is a discrepa,ncy. The party complaining must put his fiuger on the point of which he complains. {Jones v. Osgood, 6 is. Y. 233; Taylor v. Ketchum, 35 How. 289; S. C. 5 Rob. 507; Keller v. N. Y. Central B. R. Co. 'iA How. 172; Barker v. Savage, 1 Sweeny, 288.) It is no objection to a state- ment in a bill of exceptiims, that it is all contained iu one sentence, where it is shown distinctly that each of the offers and requests was severally denied and overruled, 617 319 PROCEEDINGS TO A DECREE. [Book I. hear the same in the chancellor's private room ; and that wliat was so done, was not the act of the judge but of the parties themselves, in such family cases. But in the more recent case of Ogle v. Brandling, (h) it was held that the consent of both parties was not necessary to a private hearing. That ease related to the custody of a young lady who was a ward of the court. And it was stated that some of the disclosures made in the affidavits, (A) 2 Eus3. & My. 688. and that the plaintiflf severally excepted to each of those decisions. (Dunelcel v. Wiles, 11 N. T. 4^0.) But an exception which states "to which charge the defend- ant's counsel excepted," is bad for want of particularity. (Fitch v. Livingston, 7 How. Pr. 410.) Objections which might have been met and obviated if made on the trial, cannot be raised for the first time on. appeal. (Chanipiiei/ v. Blancliard, 39 N". T. Ill ; Walker v. Gilbert, 2 Daly, 80 ; Meifer v. Fiegel, 7 Eob VM ; 8. C. 34 How. 4:!4 ; Matthews v. JDuryee, 4 Keyes. 525 ; JSaznrd v. Spears, id. 469; Eosehrooks v. Dins- more, 5 Ab., ]N". S. 59; S. C. 36 How. \Zi\ Citi/ of Brooklyn v. Brooklyn City R. S. Co. 8 Ab., ST. S. 356; Draper v. Stouveitel, 38 if . Y. 219; Forrest y. Havens, 'id. 4G9; Hoxie Y. Allen, id. 175; Doyle v. Mulrein, 7 Ab., N. S. 256, 263; Fhillips v. Terry, 5 Ab., N. S. 327 ; S. C. 3 Keyes, 313.) But a general objection to the admissibility of evidence is sufficient, where the objection eonld not have been obviated at the trial, had the specific grounds of objec- tion been pointed out. {Merritt v. Seaman, 6 N. Y. 168 ; Newton v. Harris, id. 345; Brookman v. Hamill, 54 Barb. 209 ; Fejijier v. Hair/ht, 20 id. 429, 437 ; Levin v. Bus- sell, 42 if. T 2.')1 ; Lawrence v Barker, 5 "Wend. 301 ; Tifft v. Tifft, 4 Denio, 175.) A stipulation between parties that the plaintiff's counsel shall be considered as having duly ext'cpted to the finding and decision of a judge, will not be regarded by the appellate couit as equivalent to an exception. (Stephens v. Reynolds, 6 S. T. 454.) There can be no authority for reviewing on appeal a decision to which no ex- ception has been taken. (Brewer v. Irish, 12 How. Pr. 481.) Therefore, although the report of a referee is made, by statute, a part of the record, the court cannot re- view errors appearing on the face of the record where no exceptions have been taken. (Ibid.) In a case where no questions of fact arise upon the evidence, and no inter- locutory questions of law are raised on the tritil, the decision of the referees will disclose all the facts ; and there will be nothing to which jin exception can be taken, except their conclusions of law, or their decision upon those facts. This decision is a proper subject of exception, and uo bill of exceptions or case is ueeess8,ry. (Ibid.) Where, in order to move for a new trial, or for the purpose of a review' by appeal, a party has made and served a case, the adverse party will not be allowed to make and serve a new case as an amendment by way of substitution. (Stuart v. Binsse, 3 Bosw. 657 ; S. C. 4 id. 616.) After a case or exceptions has been settled, it is filed with the clerk, and becomes a record of the court, and may. in the further progi-ess of the action, be taken, prima facie, as evidence of the facts therein appearing. (Berqen v. Ackles, 21 How. Pr. 314; id. 317.) "Where judgment by default has been taken at a general term, dismissing an ap- peal for not serving copies of a case iu due time, the default will be opened, where the appellant shows that the action, and all the proceedings therein, were wholly neglected by the counsel. (Elston v. Schilling, 7 Kob. 74.) The application for re- lief should be made to the special term. (Ibid.) Exceptions to conclusious of law must be served within the time fixed by the Code, unless included iu a case served within that time ; otherwise they will be too late. A simple extension of time to make a case does not, jjer se, extend the time to take excepticms. (Hatch v. Fogerty, 7 Kob. 488; S. C. 40 How. 492; 10 Ah., N. S. 147.) A mere general statement, following the conclusions of law in the case, that the party excepted to each of them separately, is all that is necessary. (lb.) Verdict.~\ A general verdict is that by which the jury pronounce generally upon all in- any of the issues, either iu favor of the plaintiff' or defendant. A special ver- dict is that by which the jury find the facts only, leaving the judgment to the court. (Code, 5 260.) 618 Chap. ll.J PROCEBDIN^GS TO A DECREE. 319 were of so distressing a kind as to render it a proper case to be heard in private. The opposite party would not conseat to tliis. Tiie lord The rendering of a general verdict by the juiy, and its reception by the court, ■without objection either by the judge or tlie parties, is good, notwithstanding the failure of the jury to find upon certain special questions of fact upon which the ooart directed them to find. {Moss v. Priest, 1 Rob. IS-ii ; S. C. 19 Ab. 314.) A special verdict should state all the facts, otherwise a new trial will be ordered. {Eisemann v. Swan, 6 Bosw. 669. ) It should find facts, and not the mere evidence of facts, so as to leave nothing for the court to determine, except questions of law. {Langleij v. Wwner, 3 N. Y. ;5-27 ; Sissoii v. Barrett, 2 id. 406 ; HM v. Covill, 1 id. 522.) It is not necessary, however, that it should contain facts admitted by the pleadings. (Barto v. Mimrod, 8 N. Y. 483.) The requisites of a special verdict under the Code are the same as prior to its en- aetuieut. {Williams \. d'iWJs, 7 Ab. 90.) If, in the finding of a jury, special matter follows, or is followed, by general ma.t- ter, the verdict will be judged according to the special matter. {Fruschieris v. He)i- riqucs, 6 Ab., N". S. -251.) In actions other than for the recovery of money only, or specific real property, the court may direct the jury to fijd a special verdict, in writing, upon all or any of the issues ; and in all cases may instruct them, if they render a geuerai verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written liudiug thereon. The special verdict or finding shall be filed with the clerli, and en- tered upon the minutes. (Code, § 261.) It has been decided by the supreme court that title 8, chapter 3, of the Code, (which contains sections 260 and 261,) does not apply to the trial of issues in an equity action, but only to the trial in commou law actions. (Hatch v. Peiignet, 64 Barb. 189.) The submission of special questions of fact to the jury, in addition to the issues generally, is purely a matter of discretion with the court, and may be withdrawn from their consideration at a,ny time before they give their finding thereon. {Taylor V. Ketohum, 5 Kob. 507; S. C. 35 How. 289.) In case of mistalie, the jury may correct their verdict, after it has been pronounced, before it has been received and recorded ; and for tlie same reason, the court may send them out again, to reconsider it. ( Wells v. Cox, 1 Daly, 515 ; Blaekleij v. Shel- don, 7 John. 32 ; Moss v. Priest, 19 Ab. 314 ; S. C. 1 Rob. 632.) "Where a special finding of facts shall be inconsistent with the geuerai verdict, the foiTuer shall control the latter, and the court shall gi\'e judgment accordingly. (Code, $ 262.) When there is only one issue, and the intention of the jury to find for the plaintiff is manifest, the court will, in case of a mistake by them, correct their verdict by m»ls, 4 Bosw. 663.) Tt J judge holding the court at which issues of fact are tried, must determine the whole case. {Van Faleii v. Lapham, 13 How. Pr. 240; S. C. 5 Buer, 689.) Where there is a mixed finding of law and fact, a general exception to the decision will not raise the question as to whether the lact found is sustained by the evidence. IFeople ex rel. Martin v. Albright, 14 Ab. 30o ; S. C. 23 How. 306.) 621 319 FROCEEDTNGS TO A DECREE. f Book I. Hearing cause out of its order.] Although it is a general rule that causes come on to be heard according as they stand upon the calendar, yet they are sometimes heard out of their ordinary course. In some The only authority needed for entevin)^ the judgment is the decision of the jud^e. (Lncscliip'k v. Addison, 3 Rolj. 331 ; Chamherlain r. Dempsey, 14 Al). 241 ; 9 Bosw. yl2.) Where the plaintiff has a judgment suhjeet to an acoouuting, he cannot enter his judftment, until the accounting has been had. {McMahon \ . Allen, 27 Barb. 335; S. C. 7 Ah. 1.) "Where a party feels aggrieved by the finding of the judge, the proper remedy is not an exception, hut a motion before the judge that the finding be corrected. If the party omits to liave the finding coiTeeted, even in a proper case it cannot be con sidered on an appeal from the judgmeut. (Sharp v. Wright, 35 Barb. 236; Mies y. I'rice, 23 How. 473 ; People ex rel. Murtin v. Albright, 14 Ab. 305 ; S. C. 23 How. 300.) "Where the judgment is substantially correct, the court, on appeal, will make the proper modifications, and aifirm the judgment. (Casler v. Shopman, 35 K. T. 535; Buntcn v. Orient Mu. Ins. Co. 2 Keyes, W)7 ; S. C. 8 Bosw. 448.) Where the issues of fact ai'e tried by the court without a jury, the judgment which is entered upon the decision must noi contain any provisions not embraced in such decision. (Loeschigkv. Addison, 19 Ab. 169; S. 0. 3 Rob. 331.) Questions of fact are open to examination only upon appeal to the general terra of the court in which the trial took place. {Eice v. Isham, 1 Keyes, 44.) A judgment will be reversed unless the statement of facts supports the conclusion of laiv. {Chamherlain v. Dempsey, 14 Ab. 241; S. C. 9 Bosw. 212.) If the judge fails to specify the relief granted, or the determination of the action, this iiTegnlarity may be taken advantage of on appeal. (Ibid.) No fact is, or can be, implied from the conclusions of law. They follow as the result of the facts separately stated. (Tomliiison v. Mayor, ^-c, of New York, 23 How. 455.) Yet it has been held that it is not ernn' to omit to state even material facts in the decision, because the court, on appeal, will presume the facts necessary to sustain a verdict. (McKeon v. See, 4 Rob. 449.) And where a judgment, after a trial by the court, comes up for review without any finding of facts, nothing will be presumed against the correctness of the deci.sion ; (iut the presumption will always be in favor of the decision rendered. (fiele V. lYoy 4- Bo.iton li. B. Co. 20 N". Y. 184.) In an action tried by the court without a jury, there can be no review of the trial or decision befin-e judgment. (Peojile v. Albany Sj- Susquehanna B. B. Co. 39 How. 39; S. C. 57 Barb. 204; 8 Ab., K S. 122.) Exceptions to findings of fact, or to refusals to pass upon them, are unnecessary. Questions as to the necessity or propriety of passing upon facts should be determined upon an applieatif them small, have been held not to constitute a long account. (Harris v. Mead, 16 Ab. 257.) As to what does cimstitute a long account, see Swift V. Wells, 2 How. Pr. 79 ; Miller v. Booker, id. 171 ; Mc.Cullougk v. Brodie, 13 id. 346 ; S. C. 6 Diier, 659 ; Deicei/ v. Field, 13 How. Pr. 437 ; 'Stewart v. Elwcll, 3 Code R. 139; Sheldon v. Wood, 1 Code Rep., N. S. 118 ; S. C. 3 Sandf. 739. The Code does not give an abs(dute right to have all the issues in an action referred, merely because a long account is involved. ( Wheeler v. Falconer, 7 Rob. 45 ; Cam- eron, V. Freeman. 18 How. Pr. 310 ; S. C. 10 Ab. 333.) The right to move, at a trial term, for an order of reference, can only exist when the cause is on the calendar ready for trial, and the object is to prevent its being tried. It is not necessary that a formal order should be entered, upcra every such application, but the decision thereon is equally binding, whether an order is entered or not. (Ibid.) "Where the necessity for looking into the account depends upon the decision of some other issue in the actiim, that issue must be tried, before a reference will be ordered. (Graham v. Gold- ing, 7 How. Pr. 260.) In an action under a statute, to recover damages from a city or county, sustained by the plaintiff from the acts of a mob, or by a riot, a reference will not be ordered, without consent of the patties. (Boss v. Mayor, ^-c, of New York, 2 Ab., N". S. 266 ; S. C. 32 How. 164.) If the examination of a long account is involved in an actiim for breach of a con- tract to ]-epair, it may be refeixed. (Hatch v. Wolfe, 1 Ab., J!J". S 77 ; S. C. 30 How. 65.) Tbimgh the issues in an action are such that it may prove that the examination of a long account will be important, collaterally, this does not render the actiim re- ferable without the consent of the parties. The issues must be such as to involve, directly, such examination. (Cameron v. Freeman, 10 Ab. 3.33; S. C. 18 How. Pr. 310.) The Code, by expressly permitting the referee to be confined to passing upon a specific question of fact involved in the issue, even "where a long account is also in- volved, and by allowing such account to be taken as a separate matter, for the infor- mation of the conrt, (^ 271, subd. 2,) not only authorizes, but requires, that neither party shall be deprived of the benefit of a trial before the court, or a jury, as to mat- ters not invorled in the account and embraced in the issues. ( Wheeler v. Falconer, '' Rob. 45, 48.) Although the Code blends equity aud couiimon law jurisdiction Vol. I.— 40 625 320 PROCEEDINGS TO A DECREE. [Book I, necessary, the depositions taken in one cause to be read in the other — an order for that purpose, having been previously obtained, {k) Depositions and bill in cross sxiit.'] The court will also order depo- (7;) Nevil V. Johnson, 2 Vern. 447. 'VVilforil v. Be.iaeley, .'i Atk. .'iOl, 503. Prao. Reg. ITi. tojjether, aectiou 271 does not ^ive an absolute right to refei- all the issues in the C()(le, merely because a long aooouat is involved. A referee ha.s no power to adjust equities between the parties, or to order anythiTig bnt the payment of money, and yet his decision is to be the judgment of the court. The necessity of talcing an a*;- count ought not, therefore, to talie with it, for trial before a referee, dll other matters ill an action involving snoh equities. (lb.) Compulsory references should be rigorously confined to ca-ses involving the exam- ination of a bona fide account, in an action on contract, and which should also he literally and truly a loug account. (Sharp v. Mayor, ^c, of New York, 18 How. Pr. 2l:i; S. 0. 31 Barb. 578 ; 19 How. Pr. 193.) The constitutional provision, that tlie right of " trial by jury, in all cases in which it has been heretofore used, shall bi^ in violate forever," cannot be too faithfully preserved ; and any act of the legislature, tampeiing with it, should be very strictly C(mstrued. (18 How. Pr. 21H, par Olkrke, J.) A compulsory reference should not be ordered where the action can be tried in a reasonable time by the court; since the additional time and expense necessary in a trial before a referee, may, in some ca-ses, amount to a denial of justice. (Godfrey V. H'iUiainsbur(;h City Fire Ins. Co. 12 Ab., N. S. 250.) The power to order a refer- ence, in a case where no fraud was involved, and a mere ascertainment of damages was required, existed before the constitution of 184tj, and was not taken away by that instrument. (Ibid.) JSTo referee should proceed a step in the exercise of his duties, without a certified copy of the rule or order appointing him, in his hands. This is his commissicm, and with(mt it he should not proceed to act. (Bonner v. McPhail, 31 Barb. 106.) The power of a referee to administer a judicial oath can only be derived from an order of the court appointing such referee. A memcn-andum, "referred to K. L. M.," made by the judge, on his calendar, at the circuit, is not suiEoient to constitute an order. An entry, at least, in the minutes of the court is required for that purpose. Some action of the C(mrt, shown by its records, is necessary. (Ibid.) An order of refer- ence, made after the report of the referee is filed, with the consent of both parties that it be entered nunc pro tunc, will not relate back, so as to give to an extra-judicial oath the efl'ect of an oath legally administered, on which a charge of perjury can be sustained. (Ibid.) Although the parties may agree upim a suitable person for a referee, the court must be satisfied that the selection made hj the parties is a proper one ; and the a,p- pomtment must be made by the court. (Litchfield v. Burwell, 5 How. Pr. 341; S. C. 1 Code Rep., JS". S. 42 ; 9 Jf. Y. Leg. Obs. 182. But see Whalen v. The Hoard of Supervisors of the County of Albany, 6 How. Pr. 278.) In Scudder v. Snow, (29 How. 95,) it was held that a chamber order, naming a referee, is invalid, unles.s sup- ported by an order of the court made at special term. But that when there has been a trial before the referee, upon the merits, the decision of the court, authoriziuo' a reference, may be entered nunc pro tunc, in order to support the judgment. In Wltalen v. The Board of Supervisors of tJie County of Albany, (6 How. Pr. 278,) it is held that a written stipulation, by the parties, to refer a cause to a referee " to hear and report thereon," is sufficient to confer jurisdiction, and sustain the jndo'- meut, althcmgh the referee may not have been sw(n'u, or a rule of court entered, upcni his appointment. That the court will order a rule to be entered nunc pro tunc, if necessary. And that where the parties appear and argue the cause before the referee, without objection, it is a waiver of such defects. And in Lndington v. Taft. (10 Barb. 447,) it is decided that where parties have, by stipulation, appointed a person as referee, to take the evidence and report thereon as though he had been appointed by order of court, no objection can be taken to his report, on the ground that no preliminary decree, that the parties account, had been made. Where, on a motion to confirm the report of a referee, in an action for divorce on the ground of adultery, it did not appear by the moving papers that a jury trial had been waived, and that consent to the reference had been given, in writing, and Med, as required by section 266 of the Code ; it was held that the reference was iiTcmlar and the motion was denied. (Diddell v. Diddell, ;j Ab. 167.) 636 Cliap. ll.J PROCEEDINGS TO A DECREE. 320 ^itions in a cross suit to be read, on the account directed in the original iSuit, thongli the cross bill is dismissed. [1) And a cross bill for dis- coverjr, taken pro confetiso, will be ordered, on motion, to be read on the hearing of the original cause, (wi) (i) Lnbieie v. Genou, 2 Ves. 579. (m) Corey v. Gerteken, 2 Mad. 13. If the action L^ not in readiness fur trial, it is uot referable ; and the objection should be taken on the motion to refer. {Hawkins v. Avery, 32 Barb. 551 ; Wheeler V. Falconer. 7 Rob. J5. 48 ) Such objection is, in substance, for the want of parties ; and that objection niu-!t be takeu by answer or demurrei-. (Ibid.) A cause caunot be tried before a jury, in part, and a verdict taken, and partly by a referee afterwards to be appointed. lu a proper case, where the propriety of a refer- ence is disclosed on the trial, the action may probably be withdrawn froui the jury, bat should be withdrawn altogether. {Bnchannan v. Cheseborough, 5 l)uer, 238.) When the trial of a cause is uuired, at the circuit, if the jadge is satisfied, from an inspection of the pleadings, that the trial of the issues of fact will require the exam- ination of a long accouut ; iir if, after a trial of a cause, before a jury, has been com- menced at the circuit, it appeal's, by the eoidenee, that the trial will require the ex- amiuatiou of such an account, the judge, of his own motion, may direct a reference of the issues, to a referee, to hear and determine. (Holines v. Bennett, 28 How. 269.) And the court can direct a reference of any referable action, on the motion of either party, wlienever it is satisfied by legal evidence. (Ibid.) Upon the application of either party, upon a notice of ten days, for a trial by jury, the court may or may not direct that the issnes be tried by a jury. But if the ap- plication be denied, or if no application be made, the ccmrt still has the power, at the trial, to order the whole issue, or any specific question of fact involved therein, to be tried bj' a jury. (Church v. FreemuH, 16 How. Pr. 2D4 ; O'Brien v. Bowes, W Ab. 106 ; S. 0. 4 Busw. 657. See, also, Goodyear v. Brooks, 4 Rob. 662 : S. C. 2 Ab., 2M. S. 296.) The want of notice of motion for the appointment of a referee is not cured by the fact that the opposite party has moved to vacate the order made (ra the motion, nor by his having appealed from the order. (McLean v. Tompkins, 18 Ab. 24.) A motion for a reference will be denied where it clearly appears that substantial questions of law wilt arise on the trial, although the plaintiiiii show that it will re- quire the examination of a long account on their part. (Lves v. Vandewater, 1 How. fr. V66.) When a motion to refer a cause is opposed on the ground that difficult que.-.tions of law will arise, the opposing aflSdavit must set forth what such questions are, in order that the court may be enabled to judge whether they are questions of real difficulty. (Deivey v. Field, 13 How. Pr. 437.) Where a cause involves the ex- aininaticm of a long accouut, it is no objection to a motion for a reference that it hag been tiied by a jury; (Brown v. Bradshaw, 1 Duer, 635;) otherwise if it has been once tried by a referee. (Stouvenel v. Stevens, 2 Daly, 319.) An application to set aside an assessment for a local improvement, on the ground of fraud or irregnlarity, does not admit of a reference. The proceeding is statutory, , and must be construed strictly. There is no law ^^■hioh allows a judge, in a proceed- ing out of court, to refer it. The whole law of references applies to matters pending in the court, ('fjie People ex rel. Geery v. Brennan, 45 Barb. 344.) Chapter 412 of the Laws of 1862, which provides for a reference in matters of con- troversy between the members and stockholders of a mutual insurance company which has become insolvent and a receiver of such company, is constitutit>nal. (Sands V. Kimbark, 27 ^. Y. 147 ; S. C. 39 Bai'b. 108 ; Sands v. TilUnghast, 24 How. Pr. 435.) In an action to open stated accounts, and for an accounting, it is premature to ap- ply for a reference before the question of the right to an accounting has been deter- liimed. Until then it does uot appear that any examination of the accounts will be required. (Mitchell v. Stewart, 3 Ab., N. S. 250.) Under the Revised Statutes, (2 R. S. 89,) claims against executors and adminis- trators may be referred. (Coe v. Coe, 37 Barb. 232.) The reference to a referee to take aud state an accouut between the parties in an action for the dissolution of a joint stock company, and for an acccmutiug among the associates, under subdivision 2 of section 271 of the Code, is the reference of the former courts of equity, such as was always made to a master in cases of accounting. And the practice of the court of chancery, in respect to referenoea of that nature, ia G21 320 PROCBEDIXGS TO A DECREE. [Book I. Objecting to jurisdiction.] If a defendant puts in his answer, and goes to hearing without ob^'ecting to the jurisdiction of the court, on I iie ground that the complainant has a perfect remedy at law, it is too late to make the objection at the hearing, {n) CnJ Le Roy v. Piatt, 4 Paige, 77. Still in force in regard to proceedings before referees. (KetcJium v. Clark, 22 Barb. 3iy.) Hence, where no objections are made before a referee as to the mode of pro- ceeding, aod no exceptions are talcen to his report, both parties are concluded by the report, and neither is entitled to raise any question in respect to the details of the ac- count on the hearing of the cause upon the referee's report and the proofs. (Ibid.) In an action by a purchaser of laud, in which the only relief specifically deniandud was that the vendor be compelled to perform the agreement by conveying, it ap- peared that the defendant had never been able to perform his agreement. Held, that the court could not order a reference to ascertain the plaintifl''s damages for the breach of the agreement, the defendant having a right to have that question tried by a jury. (Stevenson v. Buxton, 15 Ab. 35'2.) It is not necessary that referees should fix the time and place of hearing in writing. (Stephens v. Strong, 8 How. Pr. 33a.) "When the time and place for the hearing is actually fixed by the referees, (by parol or otherwise.) and the attorney gives the adverse pai'ty notice of the hearing, such adverse party is in fault if he fails to attend ; and in his absence the referee may proceed upon the motion of the party giving the notice. It the x>laintiff neglects to appear, the referee may proceed, and make his report in favor of the defendant, and may non-suit the plaintiff. (Ibid.) W"here an issue of fact is formed by the pleadings in an action to set aside an as- signment for the benefit of creditors for fraud, ^nd the examination of a long account is not necessary, it must be tried by the court, unless ordered to be tried by a jury, or relerred by consent of parties. It is not a referable cause by compulsion under the Code. (Draper v. Day, U How. Pr. 439.) In a case where the reference may be ended by notice from either party, the notice must be lrn shall object, except iu actions for divorce. And no judge or justice of any court shall sit as referee in any action pending iu the court of which he is judge or justice, and not already referred, unless the parties other- wise stipulate. (Code, $ 273.) It has been held that a referee can iu no case be nominated by a party, unless all the parties agree upon a suitable person. And no such agreement can be made where an infant or an absentee is a party, nor where a divorce is sought by or against a married woman. The agreement, when allowed, must be evidenced in writing, ' signed by the parties or their attorneys. The referee's name should not be inserted iu any proposed order, unless accompanied by such agreement. (Per Koosevelt, J., l.i How. Pr. 346.) In an action brought to obtain a divorce or separation, or to declare a marriage contract void, the court shall in no case order a reference to take proof of the facts lu a releree nominated by either party. (Rule 87, Supreme Court.) Froceedings on the trial ; power and duty of referee. Section 272 of the Code di- rects that the trial by referees shall be conducted in the same manner, and on similar uotice, as a trial by the court. They shall have the same power to gi'ant adjourn- ments, and to allow amendments to any pleadings, and to the summons, as the com't upon such trial, upou the same terms, and with the like effect. They shall have the same power to preserve order and punish all violation thereof upou such trial, and G28 Chap. 11.] PROCEEDINGS TO A decrb::. 320 Objection for wani of parlies.] The proper time for taking an ob- jection for want of parties, is upon opening the pleadings, and before tie merits are discussed; (o) but it frequently happens that after a cause (oj Jones V. Jones, 3 Atk. HI. Darwont v. Walton, 2 Atk. 610. to ooinpp.l the attendance of witnesses before them by attachment, and to punish them as for a contempt for non-attendance, or refusal to be -sworn or testify, as is possessed by the court. Rule 39 of the supreme court provides that f the cause or proceeding, and the said repcu't shall become absolute, and stand as in all things confirmed, unless exceptions thereto are filed and served within eight days after the service of notice of the filing the same. If exceptions are filed and served within that time, the same may be brought to a hearing at any special term thereafter, on the notice of any party interested therein. (Ibid.) A referee before whom all the issues in an action are tried, must, when he is re- quired, insert in his repin-t his findings of facts and conclusions of law. The facts so required to be found should be those forming part of the issues presented by the pleadings, and not merely those evidentiary of them. {Lane v. Burst, 5 Rob. HUi).) Where the court considers that a party has a light to have certain questiims specially passed upon in the report, the referee may be directed to amend his report by insert- ing his findings upon them. (Ibid.) But a referee is not bound to find upon any other facts than those which enter into and form the basis of the judgment to be entered upon his report. lie is not re- quired to negative, in express terms, any other facts. Pacts not found are necessarily negatived by implicaticm. {Sermont v. Baetjer, 49 Barb. 362, 364 ; Nelson v. Inger- soU, 27 How. 1; Fatterson v. Graves, 11 id. 91 ; Manley v. Ins. Co. of North Amer- ica, 1 Lans. 20 ; Ingraham v. Gilbert, 20 Barb. 151.) The facts aud conclusions of law must be stated separately. {Otis v. Spencer, 16 if. T. 610 ; Johnson v. Whit- lock, 13 id. 344 ; S. '0. 12 How. Pr. 571 ; Hunt v. Bloomer, id. 567; S. C. 18 if. Y. 341.) If the referee fails to comply with this requirement of the Code and of Rule 39, his report will be set aside for irregularity ; and if the facts found by him, aud stated in his report, do not warrant his conclnsicms of law, the judgment rendered by him will be reversed, provided the proper exceptions are taken. {Lejffler v. Field, 33 How. 385 ; S. 0. 50 Barb. 407.) The provision in section 2tj8 of the Code, that the judge or referee, in settling the case, must briefly specify the facts found by him, and his conclusions of law, means nothing more than that his findings be inserted in the case in such form as to allowthe review of the questions decided by him. (Ibid.) It is not intended by this section of the Code, after a referee has decided a case, ami made and delivered his report, to reinvest him with new judicial authority to recon- sider or review the case, aud make any new findings of law or fact therein in matter of substance, to sustain or impeach his judgment, his judicial functions being deter- mined when he has delivered his report. (Ibid. ; Nelson v. Ingersoll, 27 How. 3; Voorhies v. Voorhies, 50 Barb. 119; S C. 39 JST. T. 463.) Where the referee found that the defendant had been absent from the state at dif- ferent times, at least one year in the aggregate, it was held that this was not a suffi- cient finding ol' absence to wairant a judgment against the defendant, who relied iijion the statute of limitations as a defence. (Rickok v. Bliss, 34 Barb. 321.) The finding of a referee upcm conflicting evidence, on a questi(m of fact, is conclu- s.ve, aud cannot be disturbed. (Goodrich y. Thotnpson, 4 Rob. 75; IFooUrnff v. McGrath, 32 N. Y. 255; Hartford ^ New Haven li. R Co. v. JVew York ^- New Ha- ven U. H. Co. 3 Rob. 411. See, also, Hoogland v. Wight, 7 Bosw. 394 ; S. 0. 20 How. Pr. 70; Ball v. Loomis, 29 If. Y. 412; Dorlon v. Lewis, 9 How. Pr. 1 ; Esterlij x. Cole, 1 Barb. 235; Watkins v. Stevens, 4 id. 168; Baker v. Martin, 3 id. 634; Cody V. Allen, 22 id. 396 ; Sinclair v. I'allmadge, 35 id. 602 ; Watson v. Campbell, 28 id. 421; Hayes y. Symonds, 9 id. 260; Monellv. Marshall, 25 How. Pr. 425 NUes v. Frice, 23 id. 473; Ti-ain v. Brown, 21 id. 9.(; S. C. 12 Ab. 217 ; Van Ness v. Bush, 633 320 PROCEEDINGS TO A DECREE. [Book I. meat of the rights asserted by the bill, might be the giving to the com- plainant a claim against other persons who are not parties to the suit, the complainant, by waiving that claim, may avoid the necessity of 22 How. Pr. 481; S. C. 14 Ab. 33 ; Foster v. Coleman, 1 E. D. Smith, 85; Davis v MeCreadij, 4 id. 565 ; Mazetti v. N. Y. ^ Harlem Railroad Co. 3 id. 98 ; Dows v Moiitgonieri/, 5 Rob. 445.) But the report may be set aside as being against evidence. (Butler v. Truslow, 55 Barb. 293 ; Smith v. Scliauck, 18 id. 346. See liiM v. Fhillips, 2 Daly, 45.) N"othing should be contained in the case on appeal, except such evidence, findings and exceptions as are expressly allowed by the referee. (Leffler v. Field, 33 How. 385.) The decision of a referee in the allowance or disallowance of findings or ameuduients in the case, is not the subject of exception, and any error committed by him in the settlement of the case, eaunot be reviewed or con-ected in that way. Upon such questions the decision of a referee is final and conclusive, and cannot be reviewed on appeal. (Ibid.) An exception cannot be taken to the report on the ground that the referee refused to find upon a question of fact not contained in the issues in the acticm. (Wiltsie v. Saddle, 4 Ab., JST. S. 393.) In an action upon a contract, it is sufficient if the referee finds that there has been a performance, without setting forth the particular acts done by way of performance. (Serinoiit v. Baetjer, 49 Barb. 362.) If a party deems it necessary to have a fact found one way or the other, he must apply to the court for such a, finding. A refusal to find (me way or the other, and an exception to such refusal, presents no point for review in the court of appeals. {Priest V. Price, 3 Keyes, 222. See Brooks v. Van livery, id. 27.) Where the referee, in his report, refers argumentatively, and in a general way, to the facts found by him, and to the conclusions of law based on such facts, together with the evidence set out at length, this is not such a statement of the facts found by him, and his conclusions of law thereon, as is contemplated by the statute. {Mills v. Thursby, 12 How. Pr. 417 ; Dolce v. Peclc, 1 Code Rep. 54 ; Deming v. Port, id. 121 ; Sisson V. Barrett, 2 S. Y. 406.) The report must contain the referee's findings of fact and conclusions of law, and before these are filed no judgment should be entered upon the report. {Roberts v. Carter, 28 Barb. 462 ; S. 0. 17 How. Pr. 524.) The proper practice when the report is too general is to move that a further repre the report is delivered, either party may serve notice upon the opposite party that he elects to end the reference; aud thereupon the action shall proceed as though nu reference had been ordered, and the referees shall not, in such case, be entitled to any fees. It has been held that this section does not apply to a case of reference under the approval of the surrogate, where an executor or administrator doubts the justice of a claim. {Godding v. Porter, 17 Ab. 374.) The timt) within which a referee must render his report may be extended, either by the oral consent of the parties, or by an order of the court, or a judge. {Livingston V. Gidney, 25 How. Pr. 1.) If no extensiim of time has been obtained, a report made more than sixty days after the cause was submitted is invalid. {Niles v. May- nard, 28 How. 390. See, also, Thesselin v. Rossett, 3 Ab., if. S. 54.) 635 321 PROCEEDINGS TO A DECREE. [Book I. rights which the absent party could have claimed ; those rights being such as could not affect the interest of the defendants, (m) As a decree, made in the absence of proper parties, may be reversed, and at all events will not bind those who are absent or those claiming (u) Harvey v. Cooke, 4 Riiss. .'15. If neither party takes any action which denotea their intention of proceeding with the trial in the event of the referee not raaliing his report within the time required Ijy statute, the right to disregard the report will be waived. That is to say, after a report has been made, although not within the prescribed time, the parties cannot pi'ooeed as if no reference had been ordered, if they have not in some way objected to the delay. (Mantles v. Mi/le, 2ti How. 409; Livingston v. Cridney, 2r, id. 1; Fos- ter V. linjan, 16 Ab. :59(i ; S. C. 2(i How. 164.) "While the case remains in the hands of the referees, s«6 jiidice, any delay made by tlieni in making or delivering their report, is not to be deejned the delay of tlie court. (Kissam v. Hamilton, 20 How. Pr. 369.) A report signed and delivered by the referee after the death of a party, cannot have efl'ect given to it by relation back. (Ibid.) A referee's report in a case which has been pending fifteen years, and which has been three times tried, the third trial lasting several years, will not be set aside on account of the referee's mere neglect to make it within sixty days after the final sub- mi.ssiou ; but the court will exercise its discretionary power by enlarging the time for making such report, (ffalsei/ v. Carter, 6 Hob. 53.5.) A n(itice of election to end a reference, uuder section 273 of the Code, must be subscribed by and in the name of the attorney of the partj' electing, if he has ap- peared by attiu'uey, and if not, by or in the name of the party himself. {Lincoln v. Lincoln, 6 Rob. 525.) Amending. "When a referee has made and delivered his report, his jurisdiction is determined by that act, and he cannot afterwards, on the settlement of tlie case, make anv new or other findings of fact or law, either to sustain or overthrow his re- port. {'VoorhiesY. Foo)7ijes,'50 Barb. 119, 123; S. C. 39 N". T. 463; Nelson y. In- gersoll, 27 How. 3 ; Leffler v. Field, 33 id. 385. But see Juliand v. Grant, 34 id. 132.) If a report does not pass upon all the issues presented, the court, at special term, will send it back for ccmipletion. This is the rule when no e20opti Jones V. Jones. 3 j\tk. 217. (d) Mitcliell V. Lowndes, 2 Cox's Ca. 15. (ej Hnddlestone v. Briscoe, 11 Ves. .^95. (f) Moons V. De Bernales, I Russ. 301. (a) Wood V. Stane, 8 Price, 613. (h) Ore V. Jolinsnn, Seaton's Decrees. 363. (i) Abrahams v. Wiushup, 1 Russ. 526. 639 322 rnocKEDiyGs TO A nECjiKE. [P») u T. And where a written agreement set out in the bill was admitted by the answer of one defendant, but was not admitted by tlie other defend- ants, who claimed tlirough him, and the complainant's counsel, under a misapprehension of the law, closed the proofs and brought the cause [*323] *to a hearing without making formal proof of the written agreement; and the objection being taken at the hearing that the agreement should have been proved as against those defendants who had not admitted its execution, it was held that the court might sus- pend the argument and give the complainant an opportunity to prove the agreement in the usual way before an examiner. (???) Default at the hearing!] If the cause is noticed for hearing on the part of the defendant, and the complainant fails to appear, to ai'gue on his part, or does not furnish the necessary papers, the bill may be dis- missed with costs. (7) If noticed on the part of the complainant, and the defendant does not appear at the hearing and furnish the necessary papers on his part, the complainant may have such decree as he is entitled to by the case made by his bill. If, upon an appeal, the appellant does not appear and furnish the necessary papers when it is his duty to furnish them, the adverse party, if he has noticed the cause for hearing, may have the decree or order appealed from affirmed, with costs, by default. And if tLe respondent does not appear, the appellant may be heard ex parte. Where the respondent has elected to furnish the papers for the court upon the hearing of an appeal, if he does not appear and furnish the (kj Cai-twriglit V. Cai'twvight, Dick. 545. (I) Cox V. Allingh.im, Jacob, 3tt7. (m) Desiilaces v. Goris, 6 Paige, -252; and see Hall v. Latting, 9 Taigc, 383. (7) There is no provision in the Code for taking a complaint as confessed, for want of an appearance in the action, nor for compelling an appearance by the defendant. But on default of a party to appear at the trial, the practice is as follows : If the defendant has noticed the cause, and the plaintiff tails to a,ppear, the defendant's counsel may read proof of his notice of trial, and talce a judgment for the dismissal of the complaint, with costs. If the plaintiff has noticed the cause for trial, and the defendant fails to appear, the plaintiff's counsel may read proof of service of his notice, and produce his witnesses to prove the material allegations of the complaint which are denied in the answer. (Yan Sant. Bq. Pr. 141.) The case will then stand the same as upon an application for judgment on a complaint to which there has been no answer or demurrer. If the taking of an account, or the proof of any fact, be necessary to enable the court to give judgment, or to carry the judgment into effect, the court may take the account, or hear the proof, or may, in its discretion, order a reference for that pui-pose. (lb.) If the defendant ha-s set up a counter-claim, to which there is no reply, the coun- ter-claim is deemed admitted, even though the defendant makes default, and fails to appeaj on the trial ; and the court, in the exercise of its admitted power to dispose of the whole case, will render judgment for only so much of the cause of action as is not answered by the counter-claim. But if the matter so set up do not really con- stitute a counter-claim, the court will disregard it. ( Van Valen v. Lapham, 13 How. Pr. 246.) 640 Chap. 11.] PROCEEDINGS TO A DECREE. 323 necessary papers, his default may be entered. And the adverse party may then furnish the papers and be heard ex parte ; either at the same term or the next term of the court, or on any motion day previous to the next term. (») Dismissing till at the hearing.^ If the bill is dismissed at the liear- ing, upon a mere defect of form in the pleadiij^s, and not upon the merits of the case, it should be dismissed without prejudice to the com- plainant's right to institute a new suit, if he thinks proper to do so. (o) Unless the dismissal is accompanied with such a direction, it may be pleaded in bar to a new suit, (p) A direction of this kind will also be inserted where a bill is dismissed in consequence of facts not having been properly put in issue; (q) or where the agreement for the specific performance of which the bill was filed turns out, upon the evidence, to be different from that actually proved; (r) or where it a,ppears clear that the complainant in a bill for specific performance, is entitled to *compensation, although he is precluded, by the form of his [*324] bill, from insisting upon it. (s) Whether a bill for a specific performance be dismissed without preju- dice to the complainant's right to bring an action at laiv, or not, he is still considered by the court of equity, as at liberty to bring his action at law, upon the contract; unless the court thinks proper specifically to restrain him, by injunction, from so doing, [t) The court will, sometimes, not only acknowledge the complainant's right to bring an action upon an agreement, although it dismisses his bill, but it will, in express terms, give him leave to bring his action upon the agreement, (m) In general, when a bill is ordered to be dismissed upon a contingent event, the rule is that such orders are not conclusive unless the words "without further order" are added; and that where such words are omitted, the defendant must apply for and obtain an absolute order of dismission, {v) In this respect, however, the rule acted upon, where an order is made for a cause to stand over for a limited time, with liberty to the complainant to add parties, and in default thereof that the bill should stand dismissed with costs, &c., is different ; for it seems that in such cases the bill is actually out of court, without farther order; be- cause the defendant has it not in his power to set it down again in a (n) Rnlpilfi. (o) Ci-Dsiei- V. Acer, 7 Piiige, 137. (p) Mitf. Pl.rJ4. ((]) Mr.Xcil V. Cahill. 2 BIikIi. 263. (r) VVooHaiii v. lieara. 7 Ves. 2i'2. Lj-ndsay v. Lynch, 2 Sch. & Lef. 1. (s) Stevens v. Gtippy, 3 Ruas. 171. (t) Morllock V. Buller, 10 Ves. 292. McNamai-a v. Ai-tlim-. 2 Ball & B. 349. (u) Eil\\'ai-cl3 V. Hockin, Seaton on Decrees, 382. (V) Cator V. Dewar, Seaton on Decrees, 357. Stevens v. PraetU 2 Co^, 370, Vol. 1—41 641 324 PROCEEDINGS TO A DECREE. [Book I. fit state to be heard ; inasmuch as he is not the person to add the par- ties, (tw) Retaining till, with liberty to bring an action.'] The court will, in some cases, notwithstanding it decrees a dismission of the bill, reserve to the complainant the right to bring an action at law. And it not nn- freqnently happens that the conrt, instead of making a decree for an immediate dismissal of the bill, will direct it to be retained for twelve months, with liberty to the complainant, in the meantime, to proceed at law, as he shall be advised. In which case it forms a part of the de- cree, that if the complainant shall not proceed at law, and go to trial within the time limited, his bill is from thenceforth to stand dismissed with costs, &c. ; but that in case the complainant shall proceed at law and go to trial within the time specified, the court reserves the consid- [*325] *eration of the costs of the suit, and of all further directions, until tlie master shall have made his report, {x) The cases in which the court retains the bill, with liberty to the complainant to proceed at law, are those in which it is necessary to es- tablish his right at law, in order to found the equitable relief j {y) and the practice cannot be made use of to enable the complainant to try whether he has any claim at law ; and if he fails there, to come into this court and try to raise an equity, (z) And although in one case {a) Loi'd Thurlow appears to have expressed an opinion that the court, by retaining the bill for a yeai% has admitted the complainant's right to equitable relief, yet the better opinion seems to be that such is not the necessary consequence, and that the court may ultimately determine against the complainant, although the bill has been retained, {b) In decrees of this description, latterly, further directions are only re- served in the event of the trial taking place, (c) In cases, however, where default is made in bringing the action, the bill will not be out of court unless the decree expressly directs that upon default the bill is to stand dismissed " without further order." (cZ) (w) Id. ib. 2 Dun. Gil. (X) Seaton on Decrees, 356. 2 Dan. 6".9. (y) Wiilton V. Law, (i Ves. 150. (z) III. ib. (a) Duke of Leeds v. Corporation of New Radnor, 2 Bro. C. C. 518. (hj 2 Dan. 640. .Seaton on Decrees, 8.')7. Harwoort v. Oglander, 6 Yea. 235. CcJ III. ib. Seaton on Decrees, 357. Stevens v. Praed, 2 Cox, 370. ■ fdj Seaton on Decrees, 357. 642 Chap. 13.] PROCEEDINGS TO A DECREE. 395 "CHAPTER XII. ['326] DECEEE.(1) Sect. 1. Nature, Uses, xst) Kinds. 2. POKif OF. 3. Drawing up, Settlixg, Estterikg, and Enrolling. 4. Docketing and Discharging. 5. Eectifting Decree. I. Before Enrolment. On Petition or Motion. Rehearing. By Sicpplemental Bill in the Nature of a Bill of Revieio. II. After Enrolment. By Petition. By Bill of Review. 6. Decrees Pro Confesso. 7. Decrees by Default. 8. Decrees by Consent. SECTION I. nature, uses, and kinds of decrees. A Decree is a sentence or order of the court, corresponding to the judgment of a court of law, pronounced after the hearing or submission of the cause ; by which the rights of the parties to the suit are deter- mined and settled according to equity and good conscience. (3) Decrees are of two kinds — interlocutory and final. (1) In the Code of Procedure the word "decree" is not used; the term "judg- ment" being substituted in its place, as regards actions both of an equitable and a legal nature. (2) What is a judgment. ^ A judgment is the final determination of the rights of the parties in the action. (Code, § 245.) The word "judgment" as used in §5 11, 245, 268 and 348 of the Code, means pre- cisely the same thing, in all the diflerent actions. (Lawrence v. The Farmers' Loan 4- Trust Co., 15 How. Pr. 57, 62; S. C. 6 Duer, 689; HolUster Bank of Buffalo v. Vail, 15 N. T. 594.) No judgment can now be considered as final, which expressly reserves any question whatever for future consideration and determination by the court. {Belmont v. Powers, 3 Rob. 693.) A determination in writing, entered as a judgment, in which 643 326 PROCEEDINGS TO A DECREE. [Book I. 1st. Interlocutory Decrees. (3) An interlocutory decree is properly a decree pronounced for the purpose of ascertaining matter of law or fact preparatory to a final ' not only the qucstinn of costs is expressly reserved, but which contemplates and pro- vides for further action by the court, upon the coming in of the report of a referee ap- pointed by it, is not the final judgment of the court, but is at most an order ; and will be vacated and set aside, (m motion, so far as it purports finally to adjudicate and de- termine the rights of the parties. (Ibid.) But so much of it as orders a reference may be permitted to stand, so as to save to the parties the trouble and expense of a re-examination of the witnesses upon questions which they have already answered. (Ibid.) No judgment can now be considered as final which expressly reserves any question whatever for future consideration and determination by the court. Yet a judgment may be final, although it makes no provision in regard to the costs of the action ; tor the court will be assumed to have intended that each party should bear his own charges and expenses. (Ibid.) A discontinuance is a final determination of the rights of the parties in an action, ■w'itliin the meaning of the above section. (Crockett v. Smith, 14 Ab. 62.) A judg- ment rendered in an action to foreclose a mortgage, directing a sale of the premises, &o., in the usual form, is a final judgment. (Morris v. Morange, 38 jST. T. 172 ; S. G. 4 Ab., N. S. 451 ; 6 Trans. Ap. 1.) The judgment of a sister state can have no greater efl'ect here, than belongs to it iu the state w.'iere it was rendered. (Suydani v. Barber. 18 K. T. 468.) An order or decree of the court entered after trial, on a reference, that the plaintifl have judgment Ibr a certain sum against the defendant, reserving no further questions between the plaintiff and defendant, is to be deemed a final judgment, and not merely an order. (Graij v. Cook, 24 How. Pr. i.ii ) Where certain facts — such as the quantity and kind of goods, character of debts aud amount of the proceeds — are necessary to be either proved on the trial, or left for delermination by a referee, the court may, in the meantime, render a contingent judgment, depeudent upon the auiumit which the referee shall find to be clue. (Keinpe v. Bridge, 2 Kob. 459.) Anorder of a county court dismissing an appeal from a judgment of a justice's court,' is a judgment within ^ 245. (I'eursoii v. iowoy, 53 Barb. 407: S. C. 35 How. 193.) The dismissal of a complaint, on motion, at a special term, for want of prosecution, is a judgment in the action in favor of the defendant. (TiUspangh v. Dick, 8 How. Pr. 33. See Bobbins v. Wells, 26 id 15 ; S. G. 18 Ab. 191.) A dismissal of the complaint is equivalent to judgment as in case of non-suit under the former practice, and is a substitute for it. (Holmes v. Slociim, 6 How. Pr. 218.) The final decree of a court of equity takes effect when it is made and declared bi/ the court ; and the record, when made up, is only evidence of the decree, aud simply proves it, without addmg anything to its validity. {Butler v. Lee, 33 How. 251.) (3) The ouly judgment authoiized or permitted by the Code, is a "final deter- mination of the rights of the parties to the action." There can now be no such thing as an interlocutory judgment. (Belmont y. Fonvert, :i Rob. 696.) In their remarks upon § 245, the codifiers say : '• To avoid the confusion incident to the use of the word judgment, in two senses, one as interlocutory, and the other as final, we have thiiught it better to use it (uily iu the latter sense, and to designate all other written dn-ectious of a court or judge, as orders." (Rep. of Conn-s. to the Legislature, Feb. 1848, p. 182.) But iu Smith v. Lovis, (1 Daly, 452,) it is decided by the New York common pleas that if iu equitable actions, all the questions in controversy between the parties have been determined upon the hearing, and what remains is mei-ely the machinery set iu motion by the court to carry its decision into efl'ect, its decision is final. But if any- iiiiiig is left, involving future Htigation, the determination upcm which" might affect tne ultimate adjustment of the rights of the parties, the decision, decree, or order made is merely mterlooutory. A judgment of the court of highest rescu-t is not a final judgment in the cause where it orders anew trial. (Yoiiug v. Brush, 28 N. Y. 667 ; S. 0. 18 Ab. 171.) When it is necessary to make anotlier application to the court, and another order is necessary to give the parties the full aud entire benefit of the judgment of the court, the decree which is the ground of the application, cannot be regarded as final, aud consequently, no appeal cau be taken from it. (Butler v. Lee, 33 How. 251.) 644 Chap. 12.] PROCEEDINGS TO A DECREE. 327 *decree. (a) Therefore, when it happens that some material [*327] circumstance or fact necessary to be made known to the court is either ^ not stated in the pleadings, or is so imperfectly ascertained by them that the court is unable to determine _/!»«% between tlie parties; and therefore, a reference to, or an inquiry before, a master, or a trial of the facts before a jury upon a feigned issue, becomes necessary, the decree entered for that purpose is an interlocutory decree. The court, in the meantime, suspends its final decree until, by the master's report, or the verdict of the jury, it is enabled to dieciAe finally. {I) It very seldom happens that a first decree can be final, or conclude the cause. Thus, if any matter of fact is strongly controverted, the court is so sensible of the deficiency of trial by written evidence, that it will not bind the parties thereby, but will direct a feigned issue, (f) "Where, also, the object of the suit is a commission for the partition of lands, or to settle their boundaries, the first decree is generally interloc- utory ; the further directions being reserved till after the commission has been returned. But the most usual ground for not making a perfect decree, in the first instance, is the necessity which frequently exists for a reference to a master of the court to make inquiries, or to take accounts, or sell es- tates and adjust other matters which are necessary to be disposed of, before a final decision can be made upon the subjecb matter of the suit.((Z) There are some cases in which it is a rule of the court not to make any decree whatever until certain preliminary inquiries have been made by a master. This rule is invariably acted upon in suits for the specific performance of contracts. And the court will not permit the question whether a good title can be made or not, to be argued before it in the first instance; even though the objections to the title are stated, and the questions arising upon them are properly raised by the pleadings, (e) But the purchaser may deprive himself of this right, by his manner of pleading, (/) or by acts in pais — such as taking possession of the estate, or exercising acts of ownership over it. {g) But such acts will not pre- clude the purchaser from his right to investigate the title, unless the court is satisfied, from them, that he intended to waive, and has actually waived it. {Ji) *The interlocutory decree for a reference as to the title of a [*338] (a) Scaton on Decrees, 2. 1 Newl. Ch. Tr. 322. (b) 1 Harr. Ch. Pr. 120. (c) Id. ib. Hinrte, 129. (d) 2 Dan 6.S2. (e) Id. ib. Jenkins v. Hiles, 6 Vesey, (516, (f) Jenliins v. Ililes, supra. (g) Fleetwood v. Green, I.t Ves. 694. 1 Mad. 310. 4 Bro. C. C. 494. (h) Burrouglis v. Oakley, 3 Swanst. 159. 645 328 PROCEEDINGS TO A DECREE. f Book I. ■vendor, directs an inquiry whether he can make a good title at the time of tlie reference, not whether he could make a good title at the time of entering into the contract.(t) And, under such a reference, it has been held that if the vendor can show a good title at any time before the master's report, it will entitle him to a decree; {Jc) and even after the report, if the vendor can satisfy the court that he can make a good title by clearing up the objections reported by the master, the court will make a decree in his favor. (?) The decree for a reference of title, on a bill for a specific perform- ance, should contain a declaration that the contract ought to be specific- ally performed, (m) The court will also, in many cases, make an inter- locutory decree for a reference to a master to inquire what persons are iuterested in the subject matter of the suit. Thus, in all cases relating to the distribution of the estate of an intestate, the court will, before making any decree affecting the estate, or even ordering an account of it to be taken, direct a master to inquire and report who were the next of kin of the intestate at the time of his decease, and whether any of them are living or dead, and if dead, who are their personal representa- tives, (ji) An inquiry of tliis nature is always directed, in cases where any part of the property in question devolves upon the next of kin; whether it be upon a total, or upon a partial or constructive intestacy. And, lat- terly, it has been the practice, in all cases where the next of kin are concerned, to confine the decree, in the first instance, to an inquiry as to the next of kin, and to reserve all further directions, (o) The same course is generally pursued in other cases, where there is a fund distributable among persons constituting a particular class con- sisting of numerous individuals ; as in the case of a bequest to the cou- sins of a testator, &c. In such cases, as well as in that of intestacy, the court will, before it directs any steps to be taken, either towards a distribution, or for ascertaining the amount of the fund, satisfy itself, by a previous reference to the master, that all the individuals consti- tuting the class amongst whom the fund is disti'ibutable, are parties to the proceeding, {p) It will also adopt the same course of proceeding where the property [*329] *is distributable between one of two or more classes of indi- viduals. And where the complainant has filed his bill in the character (i) Langford v. Pitt, 2 P. Wms. 630. (Tc) Mortlock v. Kiillfr, 10 Vea. 2a2, :!13. IlepUmn v. Duulap, 1 Wheat. 179 (I) Paton V. Itoirers, Ma.l. & Gold. -iiU. (m) Mole V. Smith, Jacob, 405. (nj 2 Dan. 63fi. (o) Id. il). Seaton on Dcci-ees, 73. rnnckiyi(;liani. 1 We.«t, 6"+. (i) Harris v. Yomnan. 1 HntT. Ch. Rc|). 17^. See also Prieo v. Carver, .1 My. & Craig. 161. In Mills V. Dennis. 3 J(.lin. Cli. Ueii. 116. anil Winsti>n v. Caniplielt, + Hen. & Munt. 477, it was held that a Ueeree of sale ayaiiist an infant is v.iliii, unless he be lUrccted to join in the Ueed. Chap. 12.] PROCEEDINOS TO A DECREE. 335 The question whether, in a decree foi- strict foreclosure against an infant mortgagor, day should be given to the infant to show cause, was also discussed in that case, but not decided. The above remarks apply only to infant defendants; for is is to be observed that an infant complainant is as much bound by a decree as a person of full age. {k) And although it is a general rule that an infant defendant is not bound by a decree, if when he arrives of age he can show error in it ; yet it seems that where a decree is obviously for his benefit, his rights may be absolutely bound by it. {I) In the case of a feme covert, where a bill is brought against her and her husband, during coverture, and where he merely claims in her right, and dies, and the right survives to her, it seems that the wife may file a new answer, and make a new defence, and draw into question the validity of the decree obtained against her during cover- ture, and reverse it if there be just cause for it. (m) But if she, before her mari-iage, or her ancestors, mortgage lands, and the equity of redemption comes to her, upon a bill brought by the mortgagee to fore- close, the married woman is liable to be absolutely foreclosed, though during coverture ; and shall have no day given her, or her heirs, to redeem, after the coverture shall be determined, (n) Wlio may take advantage of.] With respect to the persons who may have the benefit of a decree, it may be proper to observe, that a party to a suit may sometimes have the benefit of a decree, without appearing at the hearing. Thus, where a decree, in a suit by a resid- uary legatee against the trustees and executors, and against other residuary legatees who were out of the jurisdiction of the court, directed the usual accounts, the court ordered, upon the application of the last named persons, though still abroad, (they submitting to be bound by the decree,) that they should be at liberty to enter their appearance, and should have the same benefit of the decree as if they had put in their answer, and had appeared at the hearing, (o) And *in another [*336] case a bill had been filed by two persons, together with another person of the name of M. R, stated in the bill as a spinster; the cause being heard and a decree made, it appeared that M. E. was married at the time the bill was filed. On an affidavit by the solicitor of M. K. that her marriage took place previously to the filing of the bill, but that he eh) Gregory v. Molesworth. 3 Atk. G-G. Williamson v. Johnston, 4 Monro, 255. Jameson V, Moselej', iil. 416. flj BriiHii V. Armistead. 6 Rand. 594. 'mj Gilli. For. Kom. 161. CnJ Mallack v. Gallon. I! P. Wms. Soi. (o) Bannister v. Way, 2 Diuk. 6tiU. 653 336 PROCEEDINGS TO A DECREE. [Book T. was ignoranb of the same, nntil after the decree, and that, to the best of his belief, the husband was not cognizant of any of the proceedings nntil after the decree, the court directed, (it being consented to by the defendants,) that on the husband's undertaking to abide by the pro- ceedings in the cause, and to be liable to the costs, he should be at liberty to go before the master and act upon the decree, as if he had been named a party upon the record, (p) And the court will sometimes order that the complainant, in one suit, shall be at liberty to prosecute a decree obtained in another but similar suit, if the complainant in the latter delay prosecuting the decree, (q) So, in a creditor's suit, if, after a decree is obtained, the complainant dies, another creditor may obtain an order for liberty to file a supple- mental bill, if the representatives of the deceased complainant do not revive within a limited time, (r) And a creditor coming in under a decree is permitted to prosecute the same, on account of delay, though only interested in the first part of the decree, and not in the whole of it, as the complainant was. (s) In a creditoi-'s suit also, residuary legatees, upon motion, obtained an order that they should be at liberty to go before the master in taking the accounts ; although they were not parties, (t) And leave has been given, upon petition, to the purchaser of the interest of a party, to at- tend the master in making the inquiry directed by the decree, (m) So, if a complainant is entitled to relief against both defendants, and one ought to indemnify the other defendant, who is decreed to pay the complainant, the court often gives liberty to that defendant to prosecute the decree against the other ; as where the surety pays money, the prin- cipal must indemnify the surety, and the court will make the decree over, (v) Decretal orders.] It may be useful to state in this place the distinc- tion between decrees and decretal orders; inasmiicli as those terms are often confounded with each other. [*337] *A decree, as has been before remarked, is the order of the court made upon the hearing. A decretal order is an order in the nature of a decree, made upon motion ox petition, either before or after the hearing. The order which has been before referred to, {w) as being made upon motion before hearing, in suits for the specific performance (p) Farrar v. Wyatt, 5 Mart. i>49. (q) Toriu V. Fawke, 1 Dick. 235. Sheppard v. Messider, 2 id. 797. Sims v. Eidge, 3 Mcr. (rj Dixon v. Wyatt, 4 Mad. 392. (s) Eilinunds v. Aclaiid, 3 Mad. 31. 1 Newl. Cli. Pr. 506. (t) I Newl. Pr. .WB. (u) Toosey v. Bmohell. Jac. 159. (v) Wallcer v. Preswicls, 2 Ves. U22, (w) Aute, p. 327, 323. 654 Chap. 13.] PROCEEDINGS TO A DECREE. 337 of contracts, for a reference to a master to inquire into the vendor's title, &c. is a decretal order. Orders made upon petitions addressed to the court in a summary manner, either on behalf of infants, or under the authority of acts of the legislature, also come under the denomi- nation of decretal orders ; as do also those orders which are made upon petitions presented under the authority of decrees, which although final with regard to the persons having the immediate interest in the property, in the hands of the court, reserve a right to parties who, upon the determination of the immediate interest, shall be interested in the property, to apply to the court touching the same, as they shall be advised, {x) SECTION" II. FORM OF DECKEES. (4) Decrees, in general, consist of thi'ee parts: 1. The caption and title: 2. The recitals ; and 3. The ordering part ; to which may sometimes (a) 2 Dan. 637. (4) Form, vALiDixr and effect of judgment. Section 274 of the Code directs that judgment may be given for or against one or more of several plaintiff's, and for or against one or more of several defendants, and it may determine the ultimate rights of the parties on each side, as between them- selves ; and it may grant to the defendanc any affirmative relief to which he may be entitled. In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment may be proper. (lb.) The court may also dismiss the complaint with costs, in favor of one or more de- fendants, in case of unreasonable neglect on the part of the plaintiff to serve the sum- mons on other defendants, or to proceed in the cause against the defendant or de- fendants served. (lb.) In an action brought by or against a married woman, judgment may be given against her, as well for costs as damages, in the same manner as against other per- K(ms, to be levied and collected of her separate estate, and not otherwise. And in auy proceeding to enforce such judgment, the supreme court shall have jurisdiction, though the amount be less than |100. (lb.) The judgment must spocily clearly the relief granted, or other determination of the actiim. (Code, J 280.) In an action by judgment creditors, to set aside a fraudulent transfer of goods and debts, made by the judgment debtor, the character of the debts, the quantity and kind of goods, as well as the amount of the proceeds, should either be proved on the trial, or determined by a referee. The court will, in the meantime, render a con- tingent juiigmeiit, dependent upon the amount found to be due. {Kaupe v. Bridge, 2 Kob. 459.) If all the defendants have been served, judgment may be taken against any or either of them, severally, when the plaiutift' would be entitled to jiidgmeut against such defendant or defendants, if the acti(m had been against them, or any of them alone. (Code, § 13fi, subd. 3.) Although the forms of action were abolished by the Code, the principles by which the difl'erent forms of action were previously governed, still remain, and now, as 655 3o7 PROCKEni.Xas TO A DECREE. [Book I. bo added 4. Tlio doclnratory part ; which, when made use of, generally precedes the ordering part, {jj) (J/) 2 Dan. 06;l. niucli as formerly, control in determining the rijrhts of parties. In pleading, a party is now to state the facts on which he rulies to .sustain a recovery, and if issue be taken thereon, he will be entitled to just such a judgment as tlie facts estal)lished will by the rules of law warrant, witliout regard to the form or name of his action. {Eldridge v. Adams, 54 Barb. 417.) After the court, at general term, has, on a careful and deliberate review of a case upon its merits, proncranced its judgment thereon, and made its award of costs, the rights of the parties are fixed, as to all the questions passed upon by the court, sub- ject only to review by the court of appeals. In all other respects, such judgment is final and couclusive. (Sheldon v. Williams, o'i Barb. 183.) A judgment of foreclosure entered in 1870, upon a mortgage made in 18B0, -which adjudicates that there is due the plaintiff a certain number of " dollars," and directs that amount to be paid her out of the proceeds of the sale, means dollars in that cur- rency which is legal tender at the date of the judgment, even though the mortgage may have been payable in coin. (Lillie v. Sherman, 89 How. 287.) In an action against one who guarantees the performance by the obligors of the condition of a bond to pay and satisfy of record a certain miu'tgage, and in case of their default, agrees to pay and satisfy it himself, the judgment should not be that the defendant pay absolutely to the plaintiff the amount due on such mcn'tgage, but that he pay and satisfy it, or cause it to be paid and satisfied within a specified time, or in the event of his not doing so, then that he pay the amount to the plaintiff. (Farnham v. Mallory, 5 Ab., JS^ S. 380 ; S. 0. 3 Keyes, 527 ; 3 Trans. Ap. 171.) Upon a trial by the court of an aoti(m in which the complaint asks only equitable relief, the court cannot, on iindiug that the plaintiff is not entitled to any equitable relief, order an assessment pf damages and a judgment fcu' the plaintiff', upon facts appearing on the trial which would warrant an action for damages. {Bradley v. Al- drich, 40 N". T. 504.) Section 275 of the Code, relieves a plaintiff from any technical objection that he has not prayed for the precise relief to which it may on the trial ap- pear that he is entitled, but the relief to be granted must still be consistent with the case made by the complaint. (lb.) The omission to insert in the record of a judgment, the appointment of a guardian ad litem, for an infant defendant will not render such judgment void, if pricu' to the entry of judgment and before the time to answer expired, a guardian was actually ' appointed, and notice of appearance given by an attorney for him. Such notice of appearance will be deemed to have been authorized by such guardian. {Ch-aham x. I'inckneji, 7 Kob. 147.) A judgment duly rendered will protect a party acting under it, though it be sub- quently reversed for error ; but one which is voidable for irregularity, when set aside, is treated as void from the beginning, and will not justify acts previously done under it. {Simpson v. Hornlieck, 3 Lans. 53.) Unless a judginent has in fact been rendered, by a justice of the peace, the filing and docketing of a transcript of (me purpin-ting to have been rendered by him, in the county clerk's office, is a mere nullity, and does not make it a valid judgment of the county court, and the party to be affected by it may show that fact, in order to de- feat the judgment so docketed. {Stephens v. Santee, 51 Barb. 532.) In an action upon a judgment entered in the usual form against two persons jointlv, the liability at law will be'regarded as joint only. (Stahl v. Stahl, 2 Lans. 60.) Although an entry of judgment upon a remittitur from the court of appeals, with the costs inserted therein as adjusted, in the absence of the attorney of the unsuccess- ful party, is irregular, the whole judgment is not void fen- in-egularity in insertinu- snob costs. (Lawrence v. Baiik of the Eepublic, 6 Kob. 497 : S. C. 31 How 502 • 3o N. T. 320.) ' State courts are not bound by the rule laid down in 7 Wallace, 258, a.s to the form of judgment in actions on contracts payable in coin ; but judgment may be expressed in currency. (Grund Y. Pendergast, bS Barb. 216.) Gold coin is n a judgment may be entered in his favor, and against his co-defendant. (lb.) When there are joint defendants, any judgment in favor of either pa.rt_v, alone, is iiTegular, until the other is out of the action a.s a defendant, and the issues against him are disposed of. Until then, such delendant haiS a right to appear at every trial of the issues. (Brown v. Richardson, 4 Kob. 603.) Where there cannot be a joint judgment for damages against all the defendants, separate judgments may be pronounced. The power to do so is in express terms, given by tbe Code, ($^ 118. 274,) and is constantly exercised by Hie courts, even in actions at law. {Gillilan v. Norton, 6 Rob. 546 ; S. C. 33 How. 3(3.) And when a court of equity has a9, note (2U). 5. Against married women.'\ Under sections 274 and 287 of the Code, as amended in 1862, relative to actiims against married women, it is only the cause of acti(ni ;ti!ainst, or liability of, a married woman defendant that is to be tried in the action against her. The determination of the mode of satisfying the amount recovered is to be postponed until the execution. The judgment does not cease to be in rem., al- tliough formally in personam. It is only to be enforced against a partioular kind of property. (Baldwin v. Eimmcl, 1 Rob. 109; S. C. 16 Ab. 353.) In all cases of a judgment against a married woman, it should be expressly stated, therein, that the amount is "to be levied or collected out other separate estate, and not otherwise;" and the execution should follow the judgment, in its terms. (Ibid ; Code, ^ 287.) In Thomjyson v. Sargent, ^15 Ab. 452,) however, it is held that the provision of ^ 1i87, of 660 Chap. 12.] PROCEEDINGS TO A DECREE. 337 And where a decree is entered nunc pro tunc, as of a previous date, or otherwise, it should appear by some entry in the minutes of decrees, or *in the minutes of proceedings in' the cause, or in both, at [*338] ■\vliat time the decree was actually entered, [d) The caption is followed by the title of the cause. And it is to be observed that the parties, both complainant and defendant, should have the same titles in the decree as they have in the bill ; (e) thus, if either party is described in the bill as executor or administrator, the decree must be accordingly. Recitals.^ Formerly decrees contained recitals of the pleadings in the cause. This practice, however, has been abolished, as tending to too gi-eat prolixity. In stating the evidence read in the cause, also, the present practice is merely to state it generally, without specifying the particular depositions which have been made use of. Our form of recital is as follows: "This cause having heretofore (or, this day, as the case may be,) been brought on to be heard upon the pleadings filed and proof taken therein: and the said pleadings and proofs having been read, and Mr. A. and Mr. B. of counsel for the complainant, and Mr. C. of counsel for the defendant, [T., and Mr. E. of counsel for the defendant F., (&c.) having been heard, and the court having duly considered the said pleadings, proofs, and arguments, it is declared and adjudged," &c. &c. It is not necessary to state ill a decree that all the preliminary steps towards maturing the cause for hearing were taken ; it being intended, where the cause is set for hearing, that it was done regularly; unless the party attempting to impugn the decree shows the contrary. (/) id) Barclay v. Brown, 6 Paige. 245. (e) Cnra. Cano. 138. (/) Quarrier v. Carter's rep's, 4 Hen. & Munf. 243. the Code that an execution against a married woman shall direct the levy and collec- ti(m of the amount against her from her separate property, and not otherwise, is directory, merely. A mere absolute judgment in personam, against a man-ied woman, recovered prior to 186;i is not sufficient to entitle the creditor to sue her thereon, and recover a judg- ment against her separate property. The creditor, in such action on the judgment, must also establish, at least, that the original cause of action was such as to entitle the plaintiff to a judgment against her separate estate. (^Baldwin v. Kimmel, supra.) (i. Against infanU.'] In a judgment against an infant, a day is usually given him to show cause against the judgment, after he comes of age, £« follows: "And this judgment is to be binding on the said A. B., unless he shall, within six months after he shall have attained the age of twenty-one years, being served with process for that purpose, show unto this court good cause to the contrary." (Tan Sant. Eq. Pr. 582; 1 New]. Ch. Pr. 501.) This was the customary equity practice, and the omission of it is error in the decree. (Seaton on Decrees, 266.) 7. When it takes effect.^ The final decree of a court of equity takes effect whec it is made and declared by the court. The record, when made up, is only evidence of the decree, and simply proves it, without adding any thing to its validity. It is not necessary even to enrol it, except in those cases where it is required to be enrollef. a.s preliminai'y to some farther action which the statute authiu'izes to be taken upoi it only after em-olment. (^Butler v. Lee, 33 How. 251.) G61 338 PROt'EEDTNGS TO A DECREE. [Book I. Ordering part.^ The ovdering or mandatory part of the decree con- taiiis the specific directions of the court upon the matter before it. These directions, it is obvious, must depend upon the nature of the particular case which is the subject of the decree. Where the decree is merely interlocutory, and directs an issue, or an inquiry to be made, or account to be taken before a master, it usually contains a reservation of the further matters to be decided, and generally, also, of the costs of the suit till after the event of the issue or reference shall be known. The mandatory clause commences as follows: "It is therefore ordered, adjudged, and decreed, and this court, in virtue of the power therein vested, doth order, adjudge, and decree," &c. The reservation of further directions is not confined to the first de- cree, but will be repeated in every decree in which it may be necessary [*339] *to direct a reference to a master, (g) It is also to be observed, that after such a reservation, the court will not interfere upon the matter reserved, in a summary way; but the cause must be set down for hearing, {h) The statute requires all decrees for any debt, damages, or costs, to be rendered in dollars and cents, (i) Declaratory pari.] Where the suit seeks a declaration of the rights of the parties, the ordering part of the decree should be prefaced by such a declaration, (k) This, however, is not absolutely necessary, and the omission of it will not invalidate the decree. Sometimes the court directs an insertion, in the decree, of the reasons for making the declaration, and of the grounds upon which it proceeds in making it. (l) This however, is not very frequently done, though the utility of the practice has been often recognized. (»i) And it seems, that as a declaration of the riglits of the parties is the act of the court, it ought not to be introduced where the decree is taken by the complain- ant upon tlie defendant's making default at the hearing, (n) Whenever a decree is made by consent, it should be so stated in the decree, (o) Where a bill contains a prayer for general as well as special relief, the court, in making a decree, is not confined to the particular relief ((7) Se.aton on Decrees. 3G, ()il III. ib. Cook V. Givyii, 3 Atk. 689. (il 1 R. S. 612, } 2. ik) Jenoiiv V. Jenoiir, 10 Ves. 56S. Ui Gordon v. (ionloii, 3 Swiinst. 478. Maynai'd v. lioselj-, id. 653. Onions >. Tyrer, 1 P. Wms. :M:i. 1 Vern. 67. n. 7 \'es. 373. Im) Ba.Y V. Wliitlircivrt, Vi Ve.s '24. 3 Swanst. 478. (n) Jennings V. Sim|):ion. 1 Keen, 404. to) aeaton on Decrees, 375. 002 Chap. 13.] PROCEEDINGS TO A DECREE. 339 prayed for, but may grant such relief as is warranted by the case made out in the bill, {p) (5) ip) Crnmbough v. Snioek, 1 Blackf. 305. (5) The relief granted. The relief granted to the plaintiff, if there be no answer, cannot exceed that dc- mauded in the complaint ; but in any other case, the court ma}' grant him any relief consistent with the case made by the complaint and embraced within the issue. (Code, ^ 275.) The rule laid down in the latter clause of this section does not justify the court in granting relief upon a contract set up in an answer, which is materially different from that alleged iu tne complaint; unless the plaintiff accepts the contract as alleged in the answer, so as to waive his own version of it. {Boardman, v. Davidson, 7 Ab., N. S. 439.) Tlie plaintiff' may be allowed any judgment to which, upon the allega- tions and proof, ho is entitled, either at law or in equity. (Armitage v. Pulver, 'i7 X. Y. 494 ; S. C. 5 Trans. Ap. 186 ; Jones v. BiUlei; M Barb. (i41 ; S. 0. 20 How. 189; A'ew York Ice Co. v. N. W. his. Co. 23 N. Y. 357.) If the ease which the plaintiff states entitles him to auj' remedy, either legal or equitable, his complaint is not to be dismissed because he has prayed for a judgment to whicb be is not entitled. {Emm-y v. I'ease, MO N. Y. 62.) Yet iu Bailei/ v. Ryder, (10 N. Y. 363,) it is held that no decree can be made in favor of a plaintiff on grounds not stated in the com- plaint. Hence, if in a creditors' suit fraud is not alleged iu the pleadings no proof of it can properly be received. "Where the cause of action stated in the complaint fails, on any ground, the plain- tiff is not entitled to recover (m facts that may come out on the trial, constituting auotber cause of action, not embraced in the complaint. {Salters v. Genin, 7 Ab. 197 . S. U. 3 Bo.sw. 250.) The court is not empowered by ^ 2?5 of the Code to grant to the plaintiff' any relief to which the proof on the trial may seem to entitle him ; but only to such as is consistent with the case as made by the complaint, and em- braced witbiu the issues. (Coweiihoven v. City of Brooklyn, 3d Barb. 9.) The rule is explicit and absolute that iu chancery a party must recover according to tbe case made by his bill, or not at all— secnndiun allegata, as, v the original undertaking, the latter by signing the same assumes an equal respousibihty with the former sureties. (Bergen v. Stewart, 28 How. 6.) Wnere, after the undertaking on appeal was given, the attorney for the respondejit executed a release of certain parts of the real estate of the appellant from the opera- tion of the judgment, thereby discharging the sureties in the undertakhig, the judge refused the order (if eutrv, unless new securitv was given, on the appeal. (Wells v. Kelsey, 25 How. 384 ; S." 0. 16 Ab. 221, u.) Notice of a moticju on the part of au appellant for an order, under the last sentence of section :i82 of the Code, directing an entry on the docket that a judgment appealed tJ7ti Chap. 12.] PROCEEDINGS TO A DECREE. 347 docketing the decree, aud sending transcripts to the clerks of the su- preme court, the register, &c., is to enter in such docket a statement of such decree, containing, 1. The names, at length, of all the parties to from is " secured ou appeal," need uot be given to the sureties. It is enough that it is given to the owner of the judgment appealed from. {Livingston v. Roberts. 3 Ab. 231 ; S. C. 5 Duer, 680; contra, Munn v. Barnnm, i Ab. 409.) In a later ease, (Burrall v. Vancterhi.lt, 1 Bosw. 637 ; S. C. 6 Ab. 70,) it was held by the superior court of New York, thac when several defendants unite in an appeal from the judg- ment, and third persons execute, as sureties, an undertaking on such appeal, in the terras prescribed by the Code, such sureties are not discharged from liability, merely because some of the appellants abandon their appeal, if the I'espoudent obtains an affirmance of the judgment. Jfeither are such sureties discharged, because an order is made, on the consent of the respondent's attorney without their consent or notice to them, that the clerk enter on the docket of tbe judgment the words, " secured on appeal," and such entry is thereupon made. (lb.) Section 63 of the Code does not prescribe the form or mode of docketing a judg- ment in the county clerk's office, or a transcript from a justice's court ; but, by a fair cimstrnction, that section may be held to refer to and adopt the mode prescribed by the Revised Statutes for docketing in ctmrts of "record. Such a judgment against two persons ought to be docketed under the initial letter of each. {Blossom, v. Barry, 1 Lans. 190.) If, on filing a transcript of judgment against H. and C, the clerk dockets it under the letter H. only, inserting the names of both defendants, it is alien upon C.'s real estate as against him, and as against subsequent purchasers having notice of the judgment. (Cb.) As against the judgment debtor, the lien of a judgment iu a court of record at- aches to land which has previously been conveyed to him by deed duly executed ind delivered ; notwithstanding such deed may have been redelivered to the grantor ind destroyed without having been recorded ; aud a purchaser at a sale thereof on txecntiou issued upou such judgment, acquires a perfect title, as against such debtor. [I'arskall v. Skirts, 54 Barb. 99.) The lien of a judgment extends only to lands, tenements, real estate, and chattels real, aud does uot afi'ect future estates iu expectancy. {Jackson v. Middl-etou, 52 Barb. 9.) A judgment creditor who advanced his money upon the faith of the debtor's title to laud which appeared unincumbered on the record, and without notice of the secret unrecorded lien of the vendor of his debtor, for a part of the purchase money, is en- titled to priority over such lien. (Rulett v. Whipple, 58 Barb. 2':i. 13 Piic.e, 76(1. Bi-nwn v. Sansonie, 9 Price. 479. Grey v. Uickiiisoii, 4 Mad 464 Mnn-ay V. niatchtbrd. 2 WtMid. 221. Kogers \ . Rogers, 1 Paige, 188. , (r) Leitcli v. CuiniJSton. 4 Paige, 476 (12) Although the CDiirt retains suffioieiit control of an action, after judgment, to regulate its enforcement, yet it has no power to modify and add to it, or make another judgment, on inoti(m. (Prentiss v. Macliaclo, 2 Kob. 660.) There is no power coiifeiTed upon the court, at .special tei'm, to review, alter, modify or change a judgment rendered at a general term. (Sheldon v. IVilliams, 52 Barli. 183.) Whatever power a special term may have to control judgments, in matters of practice not afl'eoting substantial rights — sucli as to allow their entry mine pro tunc, &Q., — they cannot exercise the power of review or modification upon the merits of a general term deeisi(m. (lb.) A judgment of the general term, rendered upon a case made at the circuit, on a verdict given there, subject to the opinion of the court at general term, cannot be altered or amended by the conrt at special term, either upon the case as made, or upcm additional evidence. (Hubbard v. CopcuU, 9 Ab., X. S. 289.) 685 352 PROCEEDINGS TO A DECREt:. [Book I. omission will be supplied by a distinct order, without altering or inter- lining the decree itself, (s) Biit in cases of error in the direction of the decree, where the alteration cannot be made by supplemental order, the court will direct the register to attend with his book, and make the alteration in open court, which the chancellor will countersign with his initials, [t) Applications to the court to rectify decrees should be made within a reasonable time ; otherwise they will not be granted. Therefore, where a party delayed a year and a half in applying to the chancellor to cor- rect a mistake made in drawing np a decree, leave to amend it was re- fused, (m) Rehearing.'] It has been already stated that after a decree has been entered and before it has been enrolled, the proper method of having it rectified otherwise than upon the consent of all parties, or in respect of matters which are of course, is by applying to have the cause reheard. If any important error has occurred, or any thing material has been omitted in the decree, a rehearing should be applied for. (v) (13) Until the decree is enrolled, it is not a record of the court, and may be altered upon a rehearing, but not after enrolment; and an enrolment by one defendant, of a decree dismissing the complainant's bill, will prevent the cause being reheard at the instance of another defendant, (w) A rehearing is not considered a matter of course, except in the cases provided for by the rules of the court, {x) In other cases it rests in the discretion of the chancellor, {y) And if a motion for rehearing is made for delay, it will be refused. (2) Where a decree of one chancel- lor is reversed by his successor in office, a rehearing will be granted by a third chancellor, on cause shown, {a) (s) CI:irk v. Hall. 7 Paiso, 382. Lane v. Hobbs. 12 Vea. 458. 7 Ves. 292. 2 Dan. Pr. 688. it) Toniliiis \. Palk, 1 liuss. 476. See also, Skrymsher v. Northcote, 1 Swanst. 573, n. [u] Koi^^ers v. Rogers, 1 Paige. ISS. (w) Gardner v. Iteriiig. 2 Edw. 131. Clark v. Hall, supra. (wi Gore v. Piinhm. 1 .Sell. & Let'. 231.. {X) Uaml V. Wiekliaui. 1 Paige, 25(i. Rale 113. iy] 1(1. lb. Tiavis v. Waters, 1 John. Ch. Rep. 48.' («,) Id. ill. in) Ijaud V. Wickham, supra. (13) The Code does not seem to make any provisiira for a rehearing, in the supremo court. Section 14 auth(n-izes a rehearing in the court of appeals, when there is not a concurrence of at least five judges. Tet the courts seem to recognize the practice of rehearing as still existing. In Hubbard v. Copcutt, (9 Ab., N. S. 289,) it is held that the court, at general term, can rehear and modify a judgment rendered by it upon a case made at the circuit, as the facts may waiTant ; but can do so only upon a case made. If further evi- dence is necessary, a retrial would be proper. In Butler v. Lee, (:i:s How. 2^1,) it is decided that if a motion to set aside a judg- ment, and allow the defeated party to interpose his claim or defence, leads to a re- hearing of the cause upcm the merits, it should be reheard before the same judge who heard it before. 686 Chap. 12.] PROCEEDINGS TO A DECBEE. 352 A rehearing may be applied for whether the decree or order is made upon the hearing of tlie cause, or of ademurrer or plea, or upon further directions, or upon exceptions, (b) A decretal order cannot, in fact, be *discharged in any other manner. And where an attempt was [*353] made t^" discharge an order pronounced by consent, upon further direc- tions, by motion, on the ground that the party had been surprised. Lord Thurlow refused to make the order upon motion ; although he appeared to think that where any thing is inserted in a decretal order, as by consent, to which the party has not consented, there must be some way of rectifying it: viz., by bill of review, but that it cannot be done by motion. (c) The same rule also prevails where the order is made upon a peti- tion ; [d) in which case the proper course is to apply by petition of re- hearing, in the same manner as upon a decree or decretal order, (e) It seems also that an order made upon a petition presented in a mat- ter under an act of parliament, and not in a cause, may be discharged upon motion, where the application to discharge it is grounded upon irregularity in the petition itself, and is accompanied by an application to take the petition off the file. (/) It is to be observed, however, that ordei's made upon motion, are not proper subjects for rehearing, but may be varied or discharged upon apf)lication by motion, to the court, {g) But a decretal order made on motion, such as an order in' a foreclosure suit under the statute, can- not be discharged on motion. (A) A cause in which a decree has been made upon taking a bill as con- fessed, may be reheard. And where a bill had been taken as confessed against a husband and wife, and afterwards the husband died, the court allowed the cause to be reheard on the petition of the wife, {i) A rehearing of a decree by default may also be had in the same man- ner as of other decrees, {k) And whatever decree is made upon the re- hearing will be absolute, even though the party again makes default. (Z) So may an order for a rehearing be obtained by a complainant when the cause has been originally set down for hearing at the request of the defendant and a decree for dismissing the bill made upon default of the complainant's appearance. (;k) Thus in Terran v. Waite, {n) where (5) 3 Dan. )09. (CI Anon. 1 Ves. jiin. 93. (d) Bishop V. Willis, 'i Ves. 113 (e) 2 Smi til's Cli. yy. .37. (f) In le Uovenbuiy Hospital, 1 My. & Keen, 279. (g) 3 Dan. 110. (h) Caclle v. Fowle, 1 Bro. C. C. 515. (i) Toiike V Claike, 1 Dick. 350. (k) 2 Dan. 645 to H53. (I) Hankiwitz v. Ooanel, 1 Dick. 109. (m) i Dan. 052. (n) 2 Dick. 782 687 353 pnocKKni.\Gs TO A DECRKE. [Book T. ail order of this nature had been obtained by the complainant, upon an application being made to discharge it, it was ordered that, upon the complainant paying costs to the defendant, and consenting also to pay [*354] *such costs as should be awarded against him on rehearing the cause, the order should stand, or otherwise be discharged. And it is to be observed that the right to have a decree upon default reheard, is not confined to the party against whom the decree has been obtained. If the party obtaining the decree finds that he has not taken such a decree as he is entitled to, or has committed an error in the form or substance of it, he may have it reheard upon the usual terms.(o) Where by mistake sums paid into court under the decree were includ- ed in the balance reported due from the defendant, and the decree on further directions ordered those balances to be paid into court, it was held to be a proper case for rehearing the cause upon the latter decree, for the purpose of correcting the mistake.(j») A rehearing ought never to be applied for, however, where the defect in the decree or order is one which can be remedied by any of the meth- ods before pointed out. {q) And it is to be borne in mind that as a rehearing will not be permit- ted after the enrolment of the decree, so it cannot be obtained till the decree or order has been settled and entered, (r) A rehearing can only take place for the purpose of altering the de- cree upon grounds which existed at the time when the decree was pro- nounced. Where, therefore, the object is not to correct the decree, but to remedy a grievance consequent upon it, resulting from a circumstance ex posi facto, and not making a part of the case as it originally stood, a ""ehearing will not be permitted, (s) -Yor can there be a rehearing of a decree made upon an appeal from \: ■: decision of a vice-chancellor or master of the rolls, except for the purpose of correcting a mere oversight in the decree of aflftrmance or reversal, {t) Nor will a rehearing be graifted on account of the discove- ry of new evidence or new matter; [u) nor because the importance of testimony has only been ascertained since the decision ; if the party had it in his power to ascertain its importance before the hearing and has neglected to do so and obtain the testimony; although the justice of the case miglit be promoted by it. (y) Nor will it be granted to ei.able (o) Baxter y. Wilson, 2 Atk. 152. (p) Brookfleld v. Bradley, 2 Sim. & Stu. 11. (qj 8 Dan. 111. (•I J Id. il). Kobinson v. Taylor, 1 Ves, Jun. 44. Tavlor v. Popham, 15 Ves. 72. Csy Bowyer v. Bright, i;i Price, 316. (IJ Attorney Gen. v. Ward. 1 Donn. Ca. in Ch. 102. (uj Mead V. Ai-ms. 3 Verm. Kep. US. (vj Fievost V. Gratz. 1 Peters' C. 0. Rep 364. Wyld v. Ward, 2 Young & Jer. 381 I^evia. BOD V. Stables, 4 liuss. 210. Chap. 12.] PROCEEDINGS TO A DECUEE. 354 a party to obtain cumulative testimony, or for the purpose of contra- *dicting witnesses examined by the adverse party; (w) or to en- [*355] able a party to release the interest of a witness declared incompetent on the hearing, and to re-examine him. (a;) Neither can there be a re- hearing, for costs only; except in special cases, [y) Accordingly there can be no rehearing by a party because he did not get costs, or that costs were given to another party; bnt where the original decree gave costs, there may be a rehearing to have the decree rectified, not by taking the costs from the party to whom they are decreed, but by throwing them upon the party or fund liable to' pay them, by the rules of the court, {z) Where \ipon the hearing of the cause the counsel for the defendants abandoned the defence, after hearing the opening argument in behalf of the complainants,. the court refused to grant a rehearing, upon the ordinary certificate of counsel, (a) To obtain a rehearing, under such circumstances, the defendants will be required to show a violation of duty on the part of their counsel, or tnat he had clearly mistaken the law or the facts, (J) Wlio may apply for. Any party to the record, having an interest in the decree, may petition for a rehearing. Accordingly it has been . held that a party made a defendant in respect to an office, which he re- signs before any decree is made in the suit, but continuing ujoon the record, and having an interest in the subject matter of the suit, acquired by his tenure of the ofSce, is entitled to rehear the decree, when made. But a party who, after a decree made, is brought before the court by supplemental bill, to which he has appeared but not answered, has no right to petition for a rehearing of the decree. And where such party joined in the same petition with other parties entitled to reheai", the court gave them leave to amend the petition by striking out his name, {hh) Method of applying for. A rehearing is applied for upon petition. The petition must state the special matter or cause on which the re- hearing is applied for, and the particular points in which the decree is alleged to be erroneous. And the facts, if they do not appear from (lu I'ccords of the court, must be verified by the aflSdavit of the party or u\ some other person, (c) (w) Dunham v. Winans, 2 Paige, 24. (X) Id. ib. (y) Kastbiirn v. Kirk, 2 John. Ch. Rep. 317. 1 UoUoy, 19. Travis v. 'Waters, 1 John. Ch. Ke|>. 48. Tavlor v. Poyham, 15 Yes. 72. (z) Mnlvaiiy v. Dillon, 1 Moll. 19. (a) Dccarters v. La Fai-ge, 1 Paige, 571, (b) I(i. ib. (bb) Attv. Gen. v. Earl of Stamtbrd, 6 Lond. Jurist Kep. 117. (c) Rnlenz. Vol. 1,-44 689 356 FROCEEBIXGS TO A DECREE. [Book I. [*356] *The petition must be confined to the case upon the record. If it suggests, as the grounds of rehearing, facts not alleged in the pleadings, the application will be refused, {d) One petition cannot seek the rehearing of orders made in different suits, though the parties in both suits are the same. Thus where two bills were filed by the same complainant, against the same defendant, and the defendant put in a plea to one and a demurrer to the other, which both came on for argument on the same day, and the vice-chan- cellor made two separate orders, allowing them, with costs.; whereupon the complainant presented a petition of appeal complaining of both the orders, the lord chancellor allowed an objection to the petition on the ground that it embraced several orders in separate suits, (e) If any order of the court has been made since the decree, for the purpose of carrying its provisions into effect, it should be stated. And the circumstance of such an order having been made by consent, will not prejudice the right of the party to have the cause reheard. (/) The petition concludes with a prayer that the cause, &c., may be re- heard, and either that the decree may be reversed, or that it may be altered in such points as are objected to. Where the petition is improperly framed, for example, if it makes a different case from that on which the decree was made, or introduces representations which were not made in the court below, the court will, on apphcation by motion, order it to be taken off the file, with costs — the deposit to go in part of costs. ( Siuitli, 34. G93 360 PROCEEDINGS TO A DECREE. [Book I. of the rehearing; even though the result of it should be to show that the decree was completely wrong, as w;ell against him as against the party obtaining the rehearing.( q) Upon a rehearing, the decree is open for the party obtaining it, only in the matters complained of; but as to the opposite party, it is open at large.(r) Thus, upon a petition by the defendant, for a rehearing^ the decree thereon may give the complainant more extensive relief than was given by the original decree.(s) An objection of substance may be raised by a defendant, for the first time, upon a rehearing: even though it may prove fatal to the whole bill.(i!) Au application will not be treated as one for a rehearing, unless it is apjiarently so, and made in due form, according to the settled prac- tice of the court.(t() Upon a rehearing, the court will give the complainant leave to amend by adding parties, in the same manner as upon an original hear- ing; and will order the rehearing to stand over for the purpose. And it has gone to the extent of allowing the complainant to add the attor- ney general as a party, either by converting the bill into an informa- tion and bill, or into an information only.(v) Evidence uyon rehearing. Upon a rehearing, all depositions taken [*361] *previous to the original hearing, though not then made use of, may be read.(?i;) If, since the hearing, a witness has been convicted of perjury, the circumstance may be brought before the court upon a rehearing:(a;) So, also, where a witness, in answer to a bill exhibited against him since the original hearing, had confessed that on the day he was examined he took a bond from the complainant, whereby the latter bound himself that, if he recovered the estate.iu question, he would convey part of it to tlie witness, the answer was allowed to be read at the rehearing, to take off the effect of the witness' evidence.( y) It is only in cases in which the evidence was capable of being pro- duced at the hearing that it can be read atarehearing.(2) No new evi- (q) 3 Dan. 4. Tasker v. Small, 1 C. P. Coop. Rep. 25.i. (r) Itiiwlins V. Powell. 1 P. Wins. 300. Dale v. Koosevclt, 6 John. Cli. Rep. 2.ofi. Conseqiia V. Fanning, y id. 594. But sue Glover v. Hedges, (Saxton's Ch. Rep. 1J3.) in wliich ease it was lielil b^' the couit of chancery in New Jer.sey. that on a petition antl onlei- for reiieaving generally, the whole ease is o|ien ; and that the party supposing himself aggrieved has u right to insist upon a reconsideration oi any part of it. (s) Sullivan V. Jacoli. 1 Molloy, Hi. Oh'lhain v. Stonehouso, 3 Uy. & Craig, 317. (t) Harrison v. McMonnoniy. 2 Edw. 251. (u) (Jardiier v. Derio':, 2 Edw. 131. (v) President of St. Mary JIagdalen v. Sihthoi-]), 1 Rnss. 1.54. (w) Cunynghuui v. Cnnynghiini, Amb. ao. NeeUham v. Smith, 2 Vern. 463. 3 Dan. 124. (x) Needham v. Smith, supra. (y) Id. ih (2) 3 Dan. iio. I>ale v. Uosevelt, 6 John. Ch. Uep. 255. Scales v. Nichols, 2 Yerg. 110. 694 Chap. 12.] PROCEEDINGS TO A DECREE. 361 denoe can be gone into, unless it be that arising from documents which were omitted to be read at tlie original hearing. For which purpose, it seems the court will, even pending the rehearing, make an order for proving them viva voce, saving just exceptious.(a) In the case of Higgins v. MiUs,(l)) a party on special application, by motion, obtained an order to prove documents viva voce on a rehearing, upon an affidavit of his solicitor that he had made diligent search for them before the hearing, but without being able to find them until after the hearing. But such an order was upon the terms of his pay- ing the costs of the application. If new evidence is discovered after the original hearing, the proper course is to obtain leave to file a supplemental bill in the nature of a bill of review, to come on for hearing at the same time Avith the rehear- ing of the original decree.(c) The court of exchequer has gone the length of giving a party liberty to exhibit interrogatories to prove exhibits, upon an application sup- ported by affidavit of the complainant, that the exhibits in question have come to his knowledge since the original hearing.((f) That court has also permitted the petition of rehearing to be amended, for the purpose of stating such a discovery.(e) *In the case of Hood Y.Pimm,{f) the court, on motion, [*363] permitted the complainants, who had, through the inadvertence of counsel, omitted to prove a will of real estate, in consequence of which the bill was dismissed at the original hearing, to prove the will at the rehearing; which was postponed on the terms of their paying the costs of the application, and the costs of the day of the original hearing. It is also to be observed, that in no case, will the court permit new evidence to be given, at a rehearing, as to any matter which was not in issue upon the original hearing.(7. See also W lli.ims v. Goodcliild, 2 Uuss. 92. Cej Wvlil V. Ward, i Toiiiig & Jer. 381. (f) 4 Siin. 101. (g) Holt V. Biirleigli, Preo. iii Cli. -293. (hi 3 D:in. Ho, 128, 97. Heilgea v. (JaiiloHuel, 2 Atk. 408. (iJ Id. 127, 97. (kj Oril. 1323, XLII. 695 362 FROCEEDIXGS TO A DECREE. [Book I. shall be paid to the adverse party when the decree or order is not varied in any material point, together with the further taxed costs occasioned by the appeal or rehearing, unless the court shall otherwise order. Under this order it has been held that the court has a discretion over the de- posit as well as over the costs.(?) A respondent can in no case be made to pay costs; but where he has made use of evidence which was not read at the hearing, that circum- stance should be taken into consideration in disposing of the costs of rehearing.(m) By supplemental Mil in the nature of a hill of review.] Matter dis- covered after a decree has been made, though not capable of being used as evidence of anything wliich was previously in issue in the cause, but constituting an entirely new issue, maybe brought before the court by a supplemental bill in the nature of a bill of revie w.(w) A party will not be allowed, however, except under very special circumstances, to file a bill of this kind, or to prosecute it after he has obtained leave to file it, unless he performs all that the decree commands him to do.(o) But he need [*363] *only perform so much of the decree as at the time of filing his bill, he is bound to perform. And if the proceedings under the decree are not, at the time, in such a state as to enable the adverse party to bring him into default, he may file a bill of this nature, although the decree has not been performed, (p) Yet under special circumstances the court has dispensed with a strict performance of the decree. This was done where there was a decree for the payment of money to a person resident out of the country, whose ap- pearance to the bill of review could not be compelled. The court first ordered the money to be paid into court. Upon an application on the ground of poverty, the party was permitted to give security for the amount, (q) So where a conveyance of mortgaged premises, which was decreed, would have extinguished a party's right, a convevance was or- dered to the clerk in court in trust, for the party who should be held en- titled, (r) And again, where the party made oath that he was not worth £40 besides the matter in dispute in the cause, performance of the de- cree was dispensed with, (s) The court, however, uses great caution in allowing the rule to be dis- (l) Kattenbiivy v. Fenton. Cook's Orders, 21. fm) Williams v. Gooilcliilct. 2 Rnss. 91. CnJ Pai triilgo v. Usborne, 5 lliiss. 1!)5. Wiser v. Blackley'. 2 John. Cli. Rep. 483. Mead v. Anns, o Vorniont Rep. llS. Hollingsworth v. AlcDouald, :i liar. & Johu. 230. Pcndletuu v. Fav. b i^aif-'O, ;i)4. foj Id. ilj. (pj J'arLridge v. Usborne, 5 Uuss. 395. * (qj (J(ii;k V. Hobl), Totllill, l73. fr) Balstone v. liyron. cited 5 Rnss. 237, 247. (sj i Freeman, 97. 1 lloff. Cli. Pr. 571. 696 Chap. 13.] PROCEEDINGS TO A DECREE. 353 peased with. The great amount of the sum decreed is not a sufficient reason, {t) To entitle a party to file such a bill, it is necessary that the new mat- ters should be discovered after the decree, or at least after the time when it could have been introduced into the cause ; because a party is not to be permitted to amend his case after the hearing, in respect of matter which was before in his power, (w) It has been decided with reference to a bill of this nature, that the question always is, not what the complainant knew, but what with rea- sonable diligence he might have known. And that the decisions with regard to bills of review, upon facts newly discovered, appear to have been upon new evidence, which if produced in time, would have sup- ported the original case, and are not applicable where the original cause would not have admitted the introduction of the evidence, as not being put in issue originally, {int) Where a party was aware of the fact in question, or by reasonable *dLligenoe could have acquired the information, before the de- [*364] cree, he should have filed a supplemental bill shortly after the dis- covery, or after gaining that information which could put him upon inquiry. He cannot, in such a case, resort to this bill after going to a decree, {v) The rule is not that a party should be taken strictly to know every thing which he could have discovered. An instance is given by Lord Eldon, of an omission to look into a box for documents, which no hu- man prudence would have suggested as the place of their deposit. An omission of this character would not prevent a bill, (w) A supplemental bill in the nature of a bill of review, may also bring before the court new matter discovered since the decree, although it could not have been used in evidence in the cause, from not being regu- larly in issue, {x) It is not sufiicient that the matter sought to be brought before the court is new. It must also be material, (y) The sense which is to be given to tlie word material is of the highest importance ; and in the case last referred to, the court says the true rule is to be collected from the case of Norris v. Le Neve, {z) In that case it was held to be sufficient to entitle a party to a bill of review, if the new proof did not come to his knowledge until after publication, or when, by the rules of the court, ft) Partri'Iire v. Usboi ne, 5 Riias. 250. (u) Oi-il V. Noel, Mad & Geld. i:JO. (uu) arigliam v. Dawson, 1 Jacob, 213. Young v. Keighly, 16 Vcs. 352. (V) Pendleton v. Fay, 3 Paige, 20(). (w) Young V. Keighly. 16 Ves. 332. (X) PartriiUe v. Usboriie, 5 Itnss. 195. (yj Old V. Noel, Mad. & Ueld. 13U. (z) 3 Atk. 26. • 697 354 FROCEEDINGS TO A DECREE. [Book I. he could make use of it. It was also decided in that case that notice to the party's attorney, &c., before the cause was heard, was notice to the party himself. The new matter must be such as, if unanswered in point of fact, would either clearly entitle the complainant to a decree, or would raise a case of so much nicety and difficulty as to be a fit subject of judg- ment in a cause, [a) In the case of Blake v. Poster, (b) it was held by the court of chance- ry, in Ireland, that to entitle a party to file a bill of this nature after a reversal of the decree iri parliament, he should satisfy the court that the nev7 matter discovered is such as will materially affect the ground of the lords' order. And as the court had not, in that case, knowledge of the grounds upon which the house decided, it refused the'application ; in order that the materiality of the newly discoverd facts might be deter- mined on appeal from the order refusing the application. Application for leave to file. A supplemental bill in the nature of a [*365] *bill of review cannot be filed without special leave of the court first obtained, (aa) The application should be made by petition founded upon an affi- davit of the discovery of new matter, {bi) The petition should also state that the decree has not yet been enroll- ed. It should be served upon the other party, with the usual notice of presenting the same. In what time bill to be filed. Bills of this nature are required by the 173d rule, to be brought within the time limited for bringing an appeal : i. e. within six months as to final decrees, and fifteen days as to interlocutory decrees or orders made by a vice-chancellor; (c) and within two years after enrolment of a final decree, and within fifteen days after notice of any other order or decree, including decrees for the general costs of the cause, made by the chancellor, {d) Deposit or security. Upon filing this bill, the complainant must make the like deposit, or give security to the adverse party in the same amount which Avould be required on an appeal from the order or decree complained of. (e) The security required upon an appeal, is a bond in the penalty of at least $250, and the deposit, if one is made, must be of that amount. (/■) (a) Old V. Noel, supra. (b) i Mollov, 31-2. (aa) lliile 173. Pendletnn v. Fay, 3 Paige, 204. (bh) I'emlleton v. Fuy^ supra. (c) 2 K. S. 178. 5 (iS, (oi-ig. S 59.) (d) Id, 605, « 7S, 7a. Id. 6M, 5, » 21, 22. (e) liiile 173. * Cfi Uule 116. 2 K. S. 60,1, S 80. 698 Chap. 12.] PROCEEDixas to a decree. ogc But where the complainant in a bill of this nature, through a mis- take as to the practice, neglects to give security or to make the requi- site deposit, the court may permit him to do it nunc pro tunc, {g) .Supplemental Mil luhen to be heard. If the court allows a supple- mental bill in the nature of a bill of review to be filed, it will be neces- sary to have a rehearing of the cause in order that the decree may be varied. For this purpose the party should present a petition for a re- hearing, at the same time that he applies for leave to file a bill. And the order should provide that the party have leave to file the bill ; that the cause be reheard ; and that the supplemental bill come on for hear- ing at the same time with the rehearing. (Ji) If an original bill is wholly defective, and there is no ground for proceeding upon it, it cannot be sustained by filing a supplemental bill founded upon matters which have subsequently taken place, (i) A bill purporting to be a supplemental bill, will not be ordered, on *motion, to be taken off the file, on the ground that it is not in [*366] fact such. The course is to demur, in such a case, {h) II. AFTER EN"KOLMENT. By petition.] The general rule is that a decree regularly obtained and enrolled, cannot be altered except by bill of review. {I) But the court will, in some cases, go so far as to rectify decrees in which there have been clerical mistakes, or surprise, although such de- crees have been actually enrolled, (m) (14.) (g) Webb v. Pell, 1 Paige, .Wl. (h) 8 Dan. 12n, ri. (a) (i) Gamiler v. Pettit, 1 Paige, 168. (k) Tiowycv V Briglit, l:t Price, 316. (I) Beiinctr V. Wi])tei-, •> Jiilin. Ch. Rep. 20.5. Wiser v. Blackle.v, id. 4SS. Mead v. Arms, 3 Ternionc Rep. 148. De.vter v. Arnold. 5 Mason, 303. 2 Har. & John. 230. (mj 2 Uiui. USS. 1 John. Ch. Rep. 200. (14) Rectifying, modifying and amending judgment. TJiKler the general pnwer of amendment, conferred by J 173 of the Code, the court may, without doubt, in I'nrthei'ance of justice, and on such terms as may be proper, amend a judgment, by adding or striking out the name of any party, or b}' correcting a mistake in the name of a party, or a mistake iu any other respect ; or by iuserting other allegations material to the case; or, when the amendment does not change gubstantially the claim or defence, by conforming the judgment to the facts proved. This section, it is said, in Sheniuiu v. Fream, (8 Ab. ^■^'^,) includes almost all cases which can arise and call for the interposition of the court. It has been decided that a judgment is amendable in the matter of the chi'istian name of one in whose favor it is rendex'ed. {Miirsh v. Berry, 7 Cowen, 344.) An error in a judgment record is no ground ibr a new trial, in a case where the verdict is con-ect. The record, in snch a case, may be amended by the general term, after appeal and argument, so as to conform to the Code. ( Walsh v. Kelly, 27 How. Pr. 359; S. C. 4-2 Barb. 98; 40 N. T. ,556.) After a cause has been tried by a judge, and his decision has been made and filed, he cannot alter it. If it is erroneous or defective, it can only be amended or oon-ected by application to the court. (.Hoyt v. Cartm; 7 How. Pr. 140 ; Hotaling v. Marsh, 14 Ab. 161.) 699 366 PROCEEDINOS TO A DECREE. [Book I. And in such cases it seems tlie course is to apply by petition, (w) In cases of miscasting, where tlie matter demonstratively appears (nj Radley v. Sli.iver. 1 John. Ch. Rep. 200. A judicial error in a judgment cannot be corrected on motion. {Lillie x. Sherman, 39 How. 287.) Whore it becomes necessary to amend a judgment and ttie judgment record, by substituting the individual name of an attorney I'or the name of a firm of vrhich he is a member, aud also by striking out an award of costs erroneously directed, it is not proper to malse an actual obliteration of the record, or an erasure of such parts there- of as are deemed eiToneous or intended to be amended. It shtmld be done by enter- ing au order for ameudnient, in the proper booli kept by the clerk, aud appending a copy thereof to the judgment record. It is also proper to mark the passages struck out by the ameudmeiit, by brackets or lines of distinction, and to refer, by an entry in the margin of the judgment, to the order of amendment, by its date. Or the judg- ment, as amended, may be entered at length, if the party so desire. (Shtyter v. Umith, y Bosw. 673.) But it is no ground for vacating a judgment that an ameud- ment has been made by an erasure. (lb.) Ini'V^ v.Mcnnett, (9 Ab. 45; S. 0. 3 Bosw. aOO; 28 N. T. 324,) the defendant demurred to one of thiiteen canscs of action contained in a complaint, and answered as to the others. The issues of fact were tried, and the plaintiff' had a verdict, leav- ing undisposed of, the issue on the demiirrer. Judgment being entered, upon this verdict, and the cause of action demurred to inserted in the judgment roll, the court allowed the plaintiff', on motion, to amend the judgment roll by inserting, nunc]>ro tunc, an order that he take nothing by the cause of action demurred to. An amendment of the judgment, in an action for the recovery of personal property and damages lor the detention thereof, by allowing the defendant the alternative of returning the property claimed, is a material alteration, and the defendant is entitled to notice of the change having actually been made, or the entry of the new judgment. A mere notice of permission to amend having been giveu is not suiEcieut to start the running of the time for bringing an appeal, (lirown v. Bardie, 5 Kob. 678.) So long as a judgment is subject to appeal, aud perhaps afterwards, it is, it seems, subject to such correction and modifications as the C(mit, by which it is pronounced, may see fit to make. {The New York Ice Co. v. The North Western Ins. Co., 23 N. T. 357 ; S. C. 12 Ab. 414; 21 How. 296.) Au order amending a judgment dis- missing the complaint without prejudice to the plaintiff^'s right to bring a new action, BO as to permit him to file au amended complaint in the original action, is a matter of discretion, from which no appeal lies to the general term. (lb.) If a judgment of foreckjsnre is erroneous iu respect to the directions therein con- tained as to costs, aud the distributicm of the proceeds, the remedy is by appeal, and not by motion to amend the judgment. {Barnard v. Bruce, 21 H; Hamnioud v. Mnf:h, 8 Ab. 152; Jolinatoii, v. Fellernian, 13 How. Pr. 21: Judges of Lewis Common Pleas \. The People, 15 Wend. 110; Lawless \. Backett, 16 John. 149.) A judgment of foreclosure, and report of sale, are proceedings which may be amend- ed nnncpro tunc under 5 173 of the Code. (Hoyaii v. Boyt, 37 N. Y. 300; S. C. 4 Trans. A p. 409.) In Alvord v. Beach, (5 Ab. 451.) where, in a judgment of sale, the sale was directed to be advertised three weeks, instead of six as required by law, but the advertisement was iu fact published six weeks, it was held that, even after sale, the error might be corrected io tune, a bimd of a guard- ian ad litem for an infant' dei'cndant. (Crmjhiin v. Liringston, 6 Ab. 350.) The omission to tile such a boud is an irrei!;ularit\', merely, aud does not a^'eot the validity 700 Chap. 13.] PROCEEDINGS TO A DECREE. 3gg upon the decree itself to have been mistaken, it may be exi^hiined and rectified by order ; (o) so, likewise, if some part of the decree be omitted (0) For. Rom. 184. of the judgment, or discharge the purchaser from completing his contract, (lb ; ) but lie is not compelled to do so, or to take title nutil the amendment is made. ( IFaring v. Waring. 7 Ab. 472.) If a judgment fails to contain a necessary recital, the court, on a direct and proper application for that purpose, has power to amend it. (Pitt v. Davison, 12 Ab. 385.) But all amendments made after judgment are allowed only for the purpose of sus- taining the judgment. {Englis y . Furniss, 3 Ab. 82; Gasper x. ^(Jawis, 24 Barb. 288.) Though a judgment of the general tenn cannot he altered, or set aside, by the special term, upon any matter connected with the merits, (Evglis v. Furniss, supra ; ) jet an applicntiim to connect a general term judgment, as to any matter of form merely, and indeed as to any proper amendment embraced in 5 173 of the Code, may be made at special term. (Yan Sant. Eq. Pr. 615 ; DeAgrecla v. Mantel, 1 Ab. 130 ; Ayres v. Cuville, 9 How. Pr. 573 ; Corning v. Powers, id. 54.) Although an amendment of a statute, inci'easing the damages that may be allowed, on appeal, can only operate prospectively, and to cases thereafter brought, yet if an allowance of the statutory increase be made in a case pending at the time of the passage of the amendment, this, though eiTor, will not discharge the sureties from their liability, but will be a ground for a motion to correct the eiToneiius judgment, which can be made only in the original cause. The question cannot be raised by the sm-eties, in an action against them upon their undertaking. (Horner v. Lyman, 4 Keyes, 237.) The law provides but two modes of correcting eiTors in legal proceedings ; (me by tn-oiion, where the error is one of form, ai'ising out of a failure to conform to the set- tled rules of practii'e ; the other by appeal, whore the errors consist in the omission of the court itself to properly observe and apply the law affecting tbe rights involved iu the controversy, in makmg its adjudication upon them. (I.ibby v. Eosekrnns, ^b Barb. 202.) Such errors caunot be corrected by an independent action brought for that purpose. (lb.) Thus, even though directions contained in judgments are un- warranted by the law applicable to such cases, the error cannot be corrected in au action against the plaintiffs in such judgments, bnraght for that purpose by a stock- holder in the corporation which was the defendant tliereiu. (lb.) Although the entry of a judgment upon a remittitur frimi the court of appeals, with the costs inserted therein as adjusted, in the absence of the attorney of the un- successful party, is irregular, the whole judgment is not void for irregularity in insert- ing such costs. The irregularity, being ccmlined to the entry of the aNvard of costs, can be corrected by amending the judgment roll, docket and execution, by striking it imt. (Lawrence v. Bank of the liepublic, (i Hub. 197; S. C. 35 N". Y. 320; 31 How. 502.) Although a judgment dismissing the complaint at the close of the plaintiff's testi- numy, cm the trial, need not, so far as the court rendering it is concerned, declare that "it shall not be a bar to a subsequent action for tlie same cause, yet, to prevent any misccmstrnction of it, or misconception of its effect in another ccmrt, such a judg- ment may be so ameuded as to declare on its face, that such dismissal is without prejudice to the right of the plaintiff' to commence a new action. (The Mechanics' Jiauhing Association v. The Mariposa Compamj, 7 Kob. 225.) A judgment of the general term cannot' be altered or ameuded by the court at special term, either upcm the case as made or upon additi(mal evidence. (Hubbard V. Copcutt, 9 Ab., S. S. 289.) The c(mrt at general term, can rehear and raodiiy ft judgment rendered by it upon a case made at the circuit, as the facts may warrant, but can do so only upon a case made. If further evidence is necessary, a retrial would be proper. (lb.) Under § 173 of the Code, the court has full power to order an amendment of a judgment record, as of the day the record was filed, and this question of amendment is between the plaintiff' and the defendant, no notice being necessary to be given to other judgment creditors. (Mann v. Brooks, 7 How. Pr. 449 ; S. C. 8 id. 40.) Where a judgment has been entered against a party by a wrong name, and an exe- cution has been issued thcreim, and the property of a person of a difl'erent name sold, no amendment of the judgment and execution, after such sale, by substituting the 701 3g6 PROCEEDINGS TO A DECREE. [Book I. ia the enrolment, it may be inserted, upon motion to the court. But under the denomination of miscasting is not to be included any pre- loaded miscasting or misvaluing, but only error in auditing and num- bering. ( jj) In Weston v. Haggerston, (q) Lord Eldon hold that all erroi-s on the face of the schedule could be rectified, even after enrolment, but that there could be no correction except of such apparent errors. And be therefore held that no aflBdavit inti-oducing a new fact, could be per mitted, after enrolment. In a case where the master had made a mistake in his report, directing a sum of money to be paid to two defendants, whereas he was ordered by the decree to direct the payment of it to one only, the court ordered the docketing of the enrolment to be altered accordingly, (r) A decree against several defendants will only be opened in favor of him who asks it. (s) If any irregnlai-ity has occurred in the enrolment of a decree, or in the proceedings to accomplish that object, the court will, upon appli- cation by motion, order it to be vacated, (t) Thus in Parker v. Downing, (u) an enrolment was vacated because [*367] *the order to enrol it 7mnc pro tunc was irregular, by reason of the petition upon which it was macje not setting forth the date of the decree In the case of Beekman v. Peck,{v) a decree entered hy default, and enrolled, was set aside on motion, and on payment of costs ; the com- plainant having been previously served with notice of the motion and copies of the affidavits on which it was intended to be made. It is not a matter of course, however, to set aside an order taking the bill as confessed, merely upon an affidavit of merits, even before a p) Beanies' Onl, 3. (q) Coi>l). Kep. 1:M. (r) Yow V. 'rowiiaenrt, 1 Dick. .W. (s) Hodges V. Mllllikin, I Bliind. mi. (t) 2 Dim. (i84. KichiuMis V. Wood, -2 My. & K. 621. (u) 1 My. & K. 6:U. Kobiiisou v. Newdick, 3 Mei-. 13. (V) .i John. Cli. liep. 415. name of the pi-oper party, will be of any avail ; nor -will it transfer the title to the property sold, to the purciiaser. (Farnham v. HUdreth, 32 Barb. 277!) Where the action involves the eonstruotion of a will, the court cannot amend the judgment therein, after it has been entered, by giving ati allowance to some of the parties, in addition to the allowance provided for by j 308 of the Code, as expenses of the suit. {Hotaling v. Marsh, 14 Ab. 161.) A statement and confession oi' judgment may be amended in the same way that relief may be had against defaults and slips in practice. ( Union Batik v. Bush, 36 N. T. 631 ; S. C. 3 Trans. Ap. 235.) Upon a motion by a subsequent judgment creditor, to set aside judgments ctmfessed by his debtor, under § 383 of the Code, the court may allow an amendment supporting the judgment, by the signing and verify- ing of a new statement, stating the facts more speciticallv. {Mitchell v. Van Buren, 27 If. T. 300.) 703 Chap. 13.] FEOCEBDINGS TO A DECREE. 367 decree in the canse.(?«) But the sworn answer '■which the defendant intends to put in must be produced ; or he must state, in his affidavit or petition to open the default, the nature of his defence and liis belief in tlie truth of the matters constituting such defence.{a;) The affida- vit of the solicitor in such a case, showing a meritorious defence, and the nature thereof, is not sufficient, unless he is himself acquainted with the facts ; and even then a sufficient excuse must be shown fO'r not producing the affidavit or sworn answer of the defendant.(y) Where ?k final decree has been entered, if the defendant applies to set aside his default and open the decree, he must, upon the motion, pro- duce the answer he proposes to put in ; so that the court may be satis- fied as to the sufficiency thereof, and be apprised of the nature of the defence, (z) And the court is less indulgent in opening a decree juro confesso than in setting aside one obtained on a default at the hearing.(a) And where the order to take a bill pro confesso is regular, the court, in opening it, will impose equitable terms. For example, it will not per- mit the defence of usury to be set up, so as to deprive the complainant of the amount actually due, with legal interest.(5) The court will not set aside a decree made by consent.(c) Where the cause has been heard upon its merits, the court will not exercise this discretionary power,(c?) unless there has been something in the nature of a surprise upon the party affected.(e) And with re- gard to what amounts to a surprise, the rule has been laid down * by Lord Eldon, that " if the party enrolling the decree has [*368] said that which might lead the other party to believe that the decree would not be enrolled, that would be a surprise."(/) But it is not every expression that may lead the party to suppose that the decree will not be enrolled which will induce the court to vacate an enrolment. In order to establish such a case, there must be fraud or deception on the part of the party enrolling, which has misled the other party.( g) It seems also that where the case has not been heard upon its merits, the court will exercise a discretionary power of vacating an enrolment and of giving the party an opportunity of having the merits of his (m) Wells V. Criisrer, 5 Paige, 16i. Hunt v. ■Wallis, 6 id. 371. (X) Hunt V. Wallia, supra. fl) Wells' V. Cniger, ««pra. Heme v. Ogilvie. IS Ves 5K! n..Tj„ a'ia Ca) Kni"ht v Young. 2 Ves. & Bea. 184. Lansing v. i\lcPherson, 3 John. Ch. Kep. 424. [VJl^k:.Tu.tkUfrytl-m. Braaish ,. Gee, An,b. 229. King v. Wightman, 1 Anst. SO. [Vj ^!;r? vJs.^r"^eve'ns';"Guppy, 1 T„r. & .iuss. 178. Parker v. Dee, 2 Ch. Ca. 200. YJ) Ban."l I: wlVs^l' T Kuss. & My. 486. 2 Dan. Pr. 6S5. Balgny v. Chorley. 1 Mylne & K.6iO. ^(j3 368 PKOCEEnrNGS TO A DECREE. [Book I. case discussed. Thns where a decree of dismissal was made by default, owing to the neglect of the complainant's solicitor in providing counsel to attend at the hearing, the enrolment was vacated.(«) The court also has power, after enrolment, to open a regular decree ob- tained bj' default, and to discharge the enrolment, for the purpose of giving the defendant an opportunity to make a defence on the merits, where he has been deprived of such defence either by mistake or acci- dent, or by the negligence of his solicitor.(^) And such decree may be opened after a sale has been made by a master under the decree, where the complainant himself became the purchaser of the premises, and has not parted with his interest therein to a bona fide purchaser, or mortgagee.(Z) So, where a bill had been taken pro eonfesso for want of an answer, while the defendant was in an unsound state of mind, and had, from that circumstance, omitted to put in an answer, a similar order was made.(?;i) Where, upon a bill filed by a husband for a divorce, a vinculo matri- monii, a decree dissolving the marriage contract was made, and after enrolment both parties joined in a petition to the court, requesting that the enrolment of the decree might be opened and vacated, and the de- cree reversed, the court granted an order according to the prayer of the petition, and dismissed the complainant's bill; but without prejudice to the rights which third persons might have acquired under the decree.(«) [*369] *B)i nil of review.] A bill of review is resorted to for the pur- pose of correcting a decree after it i,s enrolled, in other respects than mere form or on account of surprise, (o) (15) Bills of this nature are filed for errors of law apparent on the face of the decree, and for matters dehors the record, such as the discovery of new evidence, (p) A bill of review for error apparent must be for an error in law aris- (i) Robson v. Cranwell, citeil 1 Ves. 205. CkJ Millspaugli v. McBriile, 7 Paige, 600. Tripp v. Vincent, 8 id. 176. (IJ Id. ib. (mj Benson v. Vernon, cited 1 Ves. 206. See also Kemp v. Squire, 1 Ves. 205. C7iJ Colvin V. Colvin, 2 Paige. 385. Coj Wiser v. Blackley, 2 Jolin. Cti. Rep. 488. C2>J Edwiirdson v. Ma.'ieby's Heirs, 4 J. J. Mursli. 500. Bleight v. Mcllvoy, i Monro, 146. (15) The Code makes no provision for correcting a judgment bv means of a bill of review. But Mr. Tan Santvord (Eq. Pr. 615.) is of the opinion that the practice of correcting an enrolled judgment or decree in other respects than mere form, mistake or surprise, as for example, for errors of law appearing upon the face of the judgment, or for matters dehors the record, such as the discovery of new evidence, is similar to that formerly pursued in the court of chancery by bill of review, conforming the proceedings to the uew practice. 704 Gliap. 12.] PROCEEniSaS TO A DECREE. 3g9 iiig out-, of the facts admitted by the pleadings, or recited in tlie decree itself, as settled, declared, or allowed by the court. It cannot be sus- tained upon the ground that the court has decided wrong upon a question of fact, [q) It is not necessary to obtain leave to file a bill of this nature where it is brought to correct errors on the face of the record. Aliter, where it is brought upon the discovery of new matter, (r) The further consideration of bills of review will be deferred until we come to treat of the different kinds of bills, post. Book IV. Chap. 6. (16) SECTION VI. DECREES PRO CONFESSO. Wliere the bill is taken jjro confesso, the cause must be brought to a hearing, as well as in other cases, (s) (q) Weill) V. Pell, 3 Paipre. 3RS. (r) Id. ib. 4 J. J. Marsh. 500. (s) Rose V. Woodruff, 4 John. Ch. Rep. 547. (16) VACATING OR SETTING ASIDE JUDGMENT. The Code (§ 174J authorizes the court ia its cTisoretion, and upon .'iuoh terms as may- lie just, at any time ivithiu one year after notiee tliereof, to relie\-e a party from a judgment, order, or otlier pmeeeding, taken agaiust hiui throngh his niistalte, iuad- vertenoe, siirpri.se, or excusable neglect, to supply au omissi(m in any proceeding. It has been held that under this section a party may hare relief even against a judgment in his own favor. (MoiUgomery v. Ellis, 6 How. Pr. 32C.) He must, how- ever, show sufficient excuse or cause to satisfy the court that the judgment ought to be opened. (iTann v. Provost, 3 Ab. 446.) An iiTegularity in the entry of a judgment is always a ground for setting it aside ; even for setting aside a judgment of the general term by a motion at special term. (Van Sunt. Eq. Pr. 616 ; Englis v. Fnrniss, 3 Ab. 82.) A motion to set aside a judgment for irregularity, must be made within one year from the entry of judgment, where a knowledge of the judgment exists. (2 R. 3. 3r)9, 5 2; Code, § 174; Van Benthnysen v. Lyle, 8 How. Pr. 312; Whitehead v. Peca're, 9 id. 35; Farh v. Clinrch, 5 id. 381; AlouUon v. DeMaCarty, 6 Rob. 470; Cookv. Dlckerson, 1 Duer, 679.) The notice of motion to set aside a judgment for irregulaiity should state the (7)0«M(?s of the motiim ; that is, specify the irregularity complained of. {Whitehead V. Pecare, 9 How. Pr. 35.) To entitle a defendant to relief from a judgment entered against liim by a wrong name, on the gnmnd of the non-service of the summons upon him, he must admit that he was the actual defendant named in the acticm. (Moiilton\. DeMaCfirtii, 6 Kob. 470.) In this case it was said by Kobert.son, Ch. J., that it would be danger- ous absolutel.v to overthrow a judgment entered upon an affidavit of personal servici! of the summims, after a lapse of sixteen years and the death of plie deponent whn made it, so as to let in the defence of the statute of limitations, upon a simple denial by the defendant of service. A defect in au affidavit of service of the summons, in respect to the name of the defendant, is a mere irregularity ; and if not specified in a notice of motion to vacate the judgment, or taken advantage of within the time al- lowed by law for such motions, it cannot be done afterwards. (Ib.) "Where there has been constant, repeated, and renewed laches in moving to set a.side a judgment for iiTegularity, that is a sufficient reason for denying the mo- tion. {Martin v. Lott. 4 Ab. 365.) Vol. I.— 45 705 SJgg PROCEEDINGS TO A DECREE. [Book L If, upon the hearing, the complainant appears to have any equity against the defendant, the court will decree accordingly. And it is to be observed that where a bill is to be taken joro confesso, the court hears Only a party to the record, or a person having some legal or equitable interest in the eancelment of a judgment is entitled to apply to the court to vacate or order it satisfied of record ; and such application must be founded ira recognized legal or eqnitable gi-ounds. A mere stranger, without any personal equity there- for, who does not show any personal injury to arise from its oontinnance, is not en- titled to such relief (Matter of Beers, 5 Rob. 643.) If such judgment be a lien upon the property of a third person, all parties interested in such judgment, or its continuance, must be brought before the court by action, or notice of the ap- plication, whether the object be to vacate the judgment or to relieve such property Irom its lien. (lb.) "Where a judgment ordered to stand as security, has been assigned to third pur- sons who hold it as security, the plaintiff has an interest in the judgment, U[)()ii which he has a right to be heard, or at least notice and opportunity to be heard before the court can satisfy it of record. (lb.) Unless a party can show that he had no notice of the judgment sought to be opened, he cannot obtain any relief under $ 174 of the Code. (Amorij v. Jmoi-i/, 3a How. 490 ; S. 0. 8 Ab., N". S. 16; 6 Rob. 514.) "Where judgment is entered upon tt verdict while a case and amendments are with the judge to be' settled, the court has the power under that secticm, after the time for appealing has expired, to re- lieve the defendant from the judgment on the ground of mistake, inadvertence, &c., and permit him to be heard. But to justify the gi-anting of such relief, the case should be (me of unquestionable mistake on the part of the defendant, and evince perfect good faith, and should be meritorious ; and even then, to grant such relief, is going to the extreme verge of judicial discretion. (JeUinghaus v. The New Toi'k 1)18. Co. 5 Bosw. 678.) If granted, it shonld be upon terms. (lb.) The only limitaticm to the control of the court over its judgments, is the statute which forbids it to set aside judgments for irregularity after a year has elapsed ; but this does not apply to questions of right or substance. (Hallett v. Jiighters, 13 How. Pr. 43 ; Vedrick's Administrators v. Biehly, 19 "Wend. 108 ; 3 Denio, 257 ; MoultOH V. DeMaCarty, 6 Rob. 470.) Hence, the court has the power to set aside a judgment for want of jurisdiction, although more than a year has elapsed. (lb.) If a judgment for foreclosure and sale is vacated for irregularity, the mortgage may be regarded as in fuU force, if it has not been actually paid. {Stackpole v. Bobbins, 47 Barb. 212.) "Where a judgment has been suspended by an order vacating it, and such order ceases to have any validity, by being itself vacated, the lien revives, as if it had never been suspended. And where other judgment creditors have not proceeded un- der their several judgments, all parties are restored to their original rights. (King V. Harris, 34 IS. T. 330 ; S. C. 30 Barb. 471.) But if, in the meantime, bona fide purcliasers had intervened, the case would be otherwise. As to them, the vacatur of the judgment would be held operative and binding as against transaoticms en- tered into while the judgment appeared from the docket to be vacated, if they had no notice that the order had been reversed. (lb.) A motiim to set aside a judgment and allow the defeated party to interpose his claim (jr defence, is a motion always addressed to the discretion of the court, and the decision thereon is not the subject of review in the court of appeals. (Butler v. Lee, 33 How. 251.) For detects or irregularities not affecting the jurisdiction of the court, and where no fraud or collusion is imputed, the remedy is given to the party alone. Another judgment creditor is not entitled to have such proceedings or judgments set aside. (6rere v. Gundlach, 57 Barb. 13.) A judgment entered by collusion between the attorneys will be set aside. In such a case, any question' as to the authority or responsibility of the attorney who ap- peared for the defendants is wholly immaterial. (Tates v. Horanson, 7 Rob. 12.) If a judgment be rendered against an infant defendant, for whom no guardian ad litem has been appointed, it will be set aside on his motion, even though he ap- peai'ed by attorney and answered. (Fairweather v. Satterly, 7 Rob. 546 ; McMurray V. McMurray, 60 Barb. 117; S. C. 9 Ab., IST. S. 315; 41 How. 41.) Such motion should be decided on the same strict legal principles as would have applied to the old remedy by writ of error in fact. (McMurray v. McMurray. supra.) By ana- 706 Chap. 13.] PHOCEEDTNOS TO A DECREE. 369 the pleadings, and itself prononnces the decree, and does not permit the complaint to take such a decree as he thinks will stand, (as it does in ordinary cases when the defendant makes default at the hear- logy to the old Tvi-it of eiTor, a party against whom a judgment has been entered while au infant, must move to set it aside within two years after he comes of age ; otherwise, the motion will be denied. (lb. Barnes v. Gill, 13 Ab., N". S. 139.) For an irregularity in substituting defendants, upon consent given by an attorney of record without authority, the proper remedy is by motion to vacate all the pro- ceedings, including the verdict and judgment. (McGarry y . Board of Supervisors, 1 Sweeny, !a07 ; S. U. 7 Rob. 464.) Want of service of the summons in an action affects the jurisdiction, and is not a mere iiTcgularity. Therefore, it is not atteoted by the statutory limitaticm of two years for moticms to set aside for iiTegnlarity. (Weeks v. Merritt, 5'Eob. 610.) "Want of notice to the defeated party of the settlement of the findings of fact, by the judge who tried the cause, and of an opportunity to be present, is not an irregu- liu-itv for which the judgment will be set aside. (People v. Albany ^ Susq. R. R. Co. 39 How. 49; S. U. 8 Ab., 17. S. 122; 57 Barb. 204.) Before a party can set aside, or even modify a judgment for want of notice of settlement, it is necessary for him to show that in some material particular, to be pointed out, it has been en- tered otherwise than in accordance with' the findings of fact or of law, as stated by the judge or referee. (The People v. Church, 2 Lans. 459.) A judgment entered upcm-proof by affidavit of the personal service of the sum- mims on the defendant, will not be vacated on his motion, based uptm his afiBdavit denying such service, and all Ifuowledge of the proceedings or judgment against him, if there is other evidence tending to disprove the denial. In such case the affidavit of service must prevail. (Moidton v. DeMaCarty, 6 Rob. 470.) Where the plaintifi''s attorney returned the defendant's answer to his attorney, on the ground that the defendant told him that he (the defendant.) had never sworn to it, .and entered judgment as for want of an answer the judgment was set aside, on moti. } 141. »■ (i) Uavone v. Fanning, 4 John. Ch. Hep. 202. (kj llliifl'. (Jli. l>i'. ooii. (IJ Uick. 70. (mj 1 Uaii. 898 (nj Doniiiiiuucti v. Latfi. 2 Dick. 588. (vj Cainual s heirs v. Day, i LiUeU, 397. 710 Chap. 12.] PROCEEDINGS TO A DECREE. 372 complainant's bill to be taken as confessed. And a decree taken against him ex parte, without giving his solicitor notice of hearing, will be set aside as irregular, {w) SECTION VII. DECREES BY DEFAULT. (18) We have already mentioned the cases in which a decree may be taken by default at the hearing, {x) ftcj Hart V. Small, i Paige, 551. See also Doe v. Green. 2 id. 317. (xj Ante, p. 323. (18) Judgment on failure to appear at the trial. See ante, 182, note (2.) Judgment on failure to answer. See ante, 193, note (4.) Ill addition to what is there said on the subject of judgments of this kind, the following remarks and citations are submitted in respect to opening and setting them aside. The court has power to open a judgment, and allow a defence to be made, in a case where a defendant has omitted to answer within the proper time. (Li/nde v. Verity, 1 Code Rep. 97; Allen v. Aclcley, 2 id. 21 ; S. C. 4 How. Pr. 5; Satutat v. Downs, 1 Code Kep. 120 ; Foster v. Udell, 2 id. 30 ; Clark v. Lyon, 2 Hilt. 91.) This may be done before judgment is entered. {McGuin v. Cace, 9 Ab. 160.) Or after the entry of the judgment. (Elsworth v. Campbell, 31 Barb. 134 ; Sharji v. Mayor, (fc, of Neio York, id. 578 ; S. C. 19 How. Pr. 193.) But the defendant must use due diligence in applying for relief; and if there is delay, must furnish satisfactory excuse therefor. (Bogardus v. Livingston, 2 Hilt. 236 ; S. C. 7 Ab. 428.) The terms upon which a judgment will be opened, are entirely discretionary with the court, and are not the suljject of review. (Lord v. Vandenhurgh, 15 How. Pr. 363 ; S. C. 6 Duer, 703 ; Jacobs v. Marshall, id. 689.) The court may impose the terms that the defendant will not set up the defence of usury. (Toole v. Cook, 16 How. Pr. 142.) Or it niav, in its discretion, refuse to impose those terms. (Grant V. McCaughin, 4 How. Pr. 216. See Union Nat. Bank v. Bassett, 3 Ab., K S. 359; McQueen v. Babcock, 3 Keyes, 428.) A defendant, after having suffered a regular judgment to be taken against him by default, will not be allowed, as a matter of grace, to interpose the statute of limitations, to the plaintiff's demand. (Hawes v. Hoyt, 11 How. Pr. 454 ; Allen v. Ackley, 4 id. 5 ; S. 0. 2 Code Rep. 21.) To allow a plaintiff, after judgment, to come in, not as a right, but as a favor, and plead the statute of limitations in bar of a counter-claim set up by the defendant in his answer, would not be "in furthei-ance of justice." By suffering the action to go on, without setting up the statute, in a reply, the plaintiff will be deemed to have elected to stand upon the other defences made by him to the counter-olaini, on the trial, and should not be allowed to abjure such efeotion. (Clinton v. Eddi/, 54 Barb. 54 ; S. C. 37 How. 23.) But, in Harriott y. Wells, (9 Bosw. mi,) where the plaiiitiffs, after alleging performance, on their part, failed to prove it, but gave evidence of a waiver by tlie defendants, of performance, and asked leave to amend their complaint accord- ingly, which was allowed, on condition that the defendants be allowed to amend their answer, so as to meet the plaintiffs' amendment; but the terms or nature of the amendment to be made by the defendants was not prescribed ; it was held, on moti(m of the defendants, after judgment, for leave to amend their answer, by inter- posing the statute of limitatiims, that unless the plaintiffs elected to withdraw their motion to amend, the judgment should be vacated and the defendants aUowed to amend by interposing the statute of limitations, or any other legal defence, without restricticm. It was also held, in that case, that upon a complaint being amended in a material particular, the defendant's right to answer the amended complaint, by in- terposing any defence which he may possess, is absolnte and unrestricted And when, for sufficient cause shown, the court opens a default regularly taken, it should not impose, as terms of the favor, a requu-emeut that the defendant shall not interpose the defence of a former adjudication ; such a delunce being neither dishonest nor uu- 711 372 PROCEEDINGS TO A DECREE. [Book L Decrees of this nature diifer little in point of form from ordinary de- crees made upon hearipg all parties; the principal variation being in the omission of the recital of the evidence, which in otlier decrees is consoionable. {Audubon v. The Excelsior Fire Ivs. Co. 10 Ab. 64.) The rule tha' ou opening a default, the defendant may be restricted in his defences should not !>■ extended to defences other than those of usury, limitalions, &c,, which gave rise tc the rule. (lb.) Accordingly, it was lield, lu The Bank of Einderhook v. Gifford (40 Barb. 659,) that after default, a defendant, on showing suflBcieut excuse, may bj allowed to put in an answer, although the defence sought to be set up is that the note sued on was given ftu' money won at play. It seems that where a defendant has obtained leave to answer, a copy of the an- swer embodying the defence which he proposes to set up, should be served with the moving papers ; so that the court may see that it contains a good defence, {Mar- quise V. Bric/ham, 12 How. Pr. 399,) or at least the nature of the answer proposed to be pnt in must be disclosed. {HuntY. WalUs. G Paige, 371; IVells v. Cruger, 5 id. 164.) If the proposed answer will not constitute a defence, a motion to vacate a judgment taken for want of an answer will be denied. {Dtoight v. Webster, 10 Ab. l-M ; S. C. 32 Barb. 47 ; 19 How. Pr. 349.) It is not usual, and rarely proper, to try, upon affidavits, (ra a motion after judgment, that the defendant be let in to defend the question whether he has a good defence. But where it clearly appears that the defence suggested has no foundation in fact, that may be takeu into view, in dispos- ing of the application. {Catlin v. Latson, 4 Ab. 248 ; S. C. 13 How. Pr. 511.) Under § 174 of the Code — which provides for relief in cases of mistake — the court lias power, at any time within one year, to relieve against a judgment sufi'ered by mistake, surprise, inadvertance or excusable neglect. {Maeomberv. The Mayor, ^c, of Xew Tork, 17 Ab. 35.) But leave to plead or answer, after default, should not be granted, unless the party has a good defence on the merits, and the omission to plead or answer was the result of accident or mistake, without culpable uegligeuce. (lb. ; Quinn v. Case, 2 Hilt. 467 ; Coiii'rs. of Excise v. HolKster, id. 588.) In an application by the comptroller of the city of N"ew Tork, to set aside a judgment by default against that city, entered upon a voluntary appearance without proof of timely service of the summons, the merits of the action 'being doubtful; it was held that the want of proof of service of the summons entitled the defendant to have the judgment vacated ; and that the defendants should be allowed to plead or answer without terms. (lb.) On a motion to open a regular judgment, entered upon a failure to answer, the de- fendant showed that his counsel had prepared an answer, in due seascm, but, for the reason that he believed the plaintiff's proceedings irregular, had not served it ; that his counsel had made repeated attempts to see the plaintiffs personally, but had been unsuccessful; and that he understood from the plaintiff's attorney that no fui'ther steps would be taken until he could have an interview with the plaintiffs. Held that this was a case of surprise, or excusable neglect authorizing the court to open the judgment, upon terms. {Mann v. Provost, 3 Ab. 446.) Where more than two j-ears have elapsed since the entry of judgment upon an in- quest and service of notice thereof upon the defendant, a motion to open the inquest and set aside the judgment will not be granted; where the parties reside within the jurisdiction of the court. {Hendricks v. Carjjenter, 2 Kob. 625; S. C. 4 id. 665; 1 Ab., N. S. 213.) In Seiover v. Forbes, (22 How. Pr. 477,) stringent terms were imposed on the de- fendant, upon opening a judgment obtained by default, where his best excuse was that both he and his attorney had neglected to attend to the case. In Clark v. Lyon, (2 Hilt. 91,) where the answer was prepared, and verified, and placed with the clerk of the defendant's attorney, for service, in season, and the defendant's attorney having left town, the answer was not served ; through the ibrgetfulness of the clerk, this was held a sufficient excuse to warrant the opening of the default, the judgment and exe- cution being allowed to stand as securitj-. It is the usual practice, (m setting aside a regular judgment, to make the order conditional, requiring payment of the costs incurred in entering it up. But where a judgment is obtained by default, through a misapprehension of the defendant's attorney, and it appears, clearly, that the plaintiff' has no cause of action, the judg- ment and execution, (if any,) will be set aside, with costs of the motion. {Kane v. Demurest, 13 How. Pr. 4l).'>.) On moving to open a judgment, the defendant should make an affidavit of merits. Yet the lack of such an alfidavit is not a conclusive objection to the application. The Chap. 12.] PROCEEDINGS TO A DECREE. 3^2 always entered as read, {y) The omission of the evidence, however, does not extend to cases in which the object of the suit is to establish a will against an heir at law ; because in such cases the court will not declare the will well proved without hearing the evidence read. (2) A decree of this nature is not considered as a judgment of the court, but as the act of the party who obtains it, conceiving what the judg- ment of the court would be if the other party had appeared. And it is taken at the peril of the party obtaining it, if he cannot support it by his pleadings and proofs. («) Thus it is the constant practice of the court, *upon a default, to hear the affidavit of service of the notice of [*373] hearing i-ead, and to tell the counsel to take his decree, {b) In this respect a decree by default differs from a decree pro con- fessoj which, as we have seen, is the act of the court, and not of the party, (e) The cases in which decrees of this nature will be opened or rectified have bee§ already pointed out. (d) (fj 1 Smith. +17. 2 Dan. G4G. (zj Webb V. Litcot. 3 Atk. 2,5. 1 Dick. 8S. S. V. fa) Cui-ew V. Jolinatou, 2 Sell. & Let. 300. Knight v. Toung, 2 Ves. & B. 186. Stubbs V. , 10 Ves. SO. (bj I H.iff. Pr. .557. rc) Ante, p. ■!69. CdJ Ante, p. 353, 3()7, 8. • defeudant may supply the defect, on terms. (Fassett v. Tallmadge, 15 Ab. 205.) Where the defendant, in his affidavit, alleged that he had a meritorions defence ; that the note in suit had been paid; but did not state when, where, or how; it was held that a motion to open the judgment could not be grauted. {Hunter v. Lester, 18 How. Pr. 'Ml ; S. C. 10 Ab. 260.) "When a defendant has suffered a judgment to be taken against him voluntarily, and under the advice of counsel, he must make an affidavit of merits, and show specifically what his intended defence is, when he seeks to open sucb judgment. {Ellis v. Jones, 6 How. Pr. 296.) Ill the first judicial district, a motion to open a judgment and let defendants in to defend, may be made to a justice out of court. (Lowber v. The Mayor, ,^c., of New York, 5 Ab. 325.) A motion to open a default may be made before any judge or judges holding a term other than that at which the judgment was taken. (BoUes y. Duff, 56 Barb. 567.) Although, under § 311 of the Code — which provides for the insertion of costs in judgments — a judgment be entered before the adjustment of costs, a failure to com- ply with this rule is not sufficient to justify the setting aside of a judgment otherwise regular. (Macomhcr v. The Mayor, ^'O-, of New Yorh, 17 Ab. 35.) If a married woman is sued alone, on a contract made by her during coverture, and allows judgment to pass by default, and subsequently applies to set aside the judgment, the court will not interfere, when it appears, in answer to the motion, that (.he obtained the credit by representing herself to be a widow, and that the plaintiffs had no notice to the contrary. {Genet v. Dusenhury, 2 Duer, 679) "Whore a motion is made to open an inquest, the order granting or, denying it can- not be reviewed by the general term, (m appeal. {Parish v. Corlies, 1 Daly, 274.) Rule 46 of the supremo court, so far as it permits a judgment by default, or by the consent of the adverse party,' does not extend to divorce cases. And rule 92 declares that no judgment declaring void a marriage contract, or granting a divorce, or for a separation or limited divorce, shall be made of course by the default of the defendant, or iu consequence of any neglect to appear at the hearing of the cause, and that no judgment, in an action iS'or a divorce, shall be entered except upon the special direc- tion of the court. 713 373 PROCEEDINGS TO A DECREE. [Book I. SECTION VIII. DECEEES BY CONSENT. (19) A decree by consent is binding, unless procured by fraud, (e) But by this, must be understood that the parties are competent to consent, [f) A decree may be made by consent in a cause relating to the separate property of a married woman, in which she and her husband are co- complainants, {g) As respects infants, although the court will not, in general, make any decree by consent where they are concerned, without referring it to a master to inquire whether it will be for their benefit; yet when once a decree is pronounced without that previous step, the infants will be bound by it. (li) A decree or order made by consent of the counsel for the parties, cannot be set aside either by rehearing or appeal, {i) or by bill of re- view; {k) unless by clerical misprision any thing has been inserted in the order, as by consent, to which the party had not consented^ in which case Lord Thurlow appears to have considered that a bill of re- view would lie. {I) If, however, the decree has been obtained by fraud, relief may be had against it by original bill, (m) The consent of coun- sel to a decree is to bo given upon their own conception of the authen- ticity of their instructions ; {n) and as the client is bound by the act of [*374] *his counsel, he must, if the counsel has consented without sufficient authority, seek his remedy against the counsel, (o) A person affected by a decree, but not a party, may aver and prove that it was entered by an agreement of the parties, though it contra- dict the record, {p) A decree of nullity declaring void a marriage contract, or a decree for a divorce or a separation or limited divorce, cannot be entered by consent. (?) (20) (21) (e) Krench v. Shotwell. 6 John. Ch Rep. 561. (f) 1 Dan. 617. (a) fetinsoii V. Ashley. 5 Russ. 4. (U) Per LoviT Thm-Iow, Wall v. Kushby, 1 Bro. C. C. 487. (X) 2 Dan. 617. and cases there cited. Atkinson v. Manks, 1 Cowen, 6ai. Kane v. Whit- tick, 8 Wend. 219. Kinggold's case. 1 Bland. 5, 12. Id. 18,270. Coster v. Clark, in Chan., Mav 17, 1843. (kj Webb V. Webb, S Swanst. 658. And see Smith v. Turner, 1 Vern. 274. CI) Anon., 1 Ves. jun. 93. (m) Bradish v. Gee, Amb. 229. CnJ Mole v. Smith. 1 Jac. & W. 673. (oj Bradish v. Gee. Amb. 229. fpj Stark's admr v. Thompson's ex'rs, 3 Monro, 302. (gj Kiile 170. (19) Judgment BY consent, upon the offee of a party. See ante, p. 201, note (5.) (20) Judgment by confession. Section 3S2 of tlie Code allows a judgment by confession to be entered without action, either for money due, or to become due, or to secure any person against con- tingent liability on behalf of the defendant, or both, in the manner prescribed in chapter III, of title 12, part II. Section 383 requires a statement in writing to be made, signed by the defendant and verified by his oath, to the following effect : 1. It must state the amount for 714 Chap. 12.] PROCMEDINGS TO A DECREE. 374 ■which the jutlgment may bo entered, aiifl anthovize the entry of jnclo as to sustain its priority over intervening judgment creditors. (McKee v Tyson, 10 Ab. 392, and eases cited in note.) The power of the court below to amend in such cases, is a matter (jfdiseretiou, the exercise of which is not reviewable in the court of appeals. (Mitchell v. Van Buren, 27 X. Y. 30U ; Union Bank v. Bnsh, 36 id. 631 ; S. 0. 3 Trans. Ap. ^85.) In McDowell v. Daniels, (38 Barb. 143.) it is held that judgments by confession, entered upon insufficient statements, being by statute pronounced void as to other judgment creditors, cannot be snpp^irted by adidavits, on a motion to set them aside for n-regnlarity. There is nothing in the Code, nor any other provision of law, requiring a judgment by confession to be entered at any particular tune after the confession and statement are made. (Curtis v. Corbitt, „o riuw. ;>S.) .hulginent may be entbLcd with the county clerk of any county, and not merely in the county where the statement au- thorizmgit was veritied. (Moehcr v. Hcydrick, 3U How. iSi; S. C. 45 Barb. 459; 1 Ab., if. S. 258.) • ■ ■ 716 Chap. 12.] PROCEEDT^'OS TO A DECREE. 374 A judgu'ent br courcssUm may be set nsirle for a defRCt iu ihc. statement upon which it is entered, (in the application of a jnnior judfrinent creditor. (Cliappcl v. Chiippel, \-i N. r. 21.5 ; Rae v. Lawser, 18 How. Pr. 23 ; S. G. 9 All. :W0, n.; JkiiiiieU V. Hcnrij. \'A How. Pr. 142 ;) or upon the application of a subsequent hniia fide pur- chaser of real estate, upon which the judgment is an apparent lien, {Kendall v. Hoclgkiiis, 1 Bosw. CiO; S. C. 7-Ab. 309 ;) or iu an action in the nature of a credit- ors suit, at the sxiit of a subsequent judgment creditor. (Dunham v. Waterman, 17 X. T. 9; S. C. 6 Ab. 357.) The right to set aside or attack a void judgment entered up by confession upon a de- fective statement, is not limited to judgment creditors. A judgment o(rafessed with()nt a fill compliance with the provisions of the Code is to be deemed fraudulent and void, as against tbe creditors of the judgment debtor ; and it may be attacked by a grantee or mortgagee of premises upon which such judgment is a lien, as well as by judgment creditors. (jYorci's v. Denton, 30 Barb. 117.) They may do this either by bringing an action for that purpose, or in defence of an action brought to enforce such judgment to which they are made parties. (Ibid.) But the general assignee for the benefit of creditors, of a judgment debtor, has not such a standing in court as entitles him to question the validity of the judgment. It is only a judgment creditor, or one claiming under him, that is authorized to move to set it aside. A creditor at large cannot be heard. {Beelcman v. Kirlc, 15 How. Pr. 22b. See Lou'her v. Mayor, cf-c, of New York, id. 123.) An assignee for the benefit of creditors, as assignee, represents the debt(n' himself, with whom it does not lie to take advantage of his own statement. As trvstee, he represents the creditors at large, who do not occupy a positi(m to question the validity of the judgment. (lb.) Where the statement in a judgment by confession is defective, the plaintifi' can- not avail himself, by motion, of defects in the statement (m which a former judg- ment was confessed by the same defendant to another plaiutiif. (Rae v. Lawser, la How. Pr. 23.) A judgment by confession, although voidable, cannot be impeached collaterally. (Sheldon \. Stryker, 34 Barb. 116; S. C. 21 How. Pr. 329.) A judgment con- lessed directly to a third party, who takes it in good faith, and for value, cannot be impeached for fraud existing between the dofeudant and the original creditor. (Kirhy v. Fitzgerald, 31 IS". T. 417.) Otherwise, however, if the party takes such judgment as collateral security only, after it has been confessed. (lb.) The C(}nrt has the power in any case, to compel the defendant iu a judgment entered upon an insufficient statement to sign and verify an amended statement, in the same manner that it may relieve against any other default or slip in the prac- tice. (Union Bank v. Bush, 36 X. T. 631 ; S. 0. 3 Trans. Ap. 235.) A judgment Dy confession having been duly docketed, the omission by the clerk to make the indorsement on the statement, required by § 384 of the Code, may be supplied by an order of the court directing the ind(n-scment to be made nunc pro tunc. Section 176 of the Code was intended to cover errors and defects of this na- ture. (Bahi V. Mathews, 20 How. Pr. 267 ; S. C. 12 Ab. 403, n. ; Neale v. Berry- hill, 4 How.' Pr. 16 ; Talcott v. Rosenberg, 8 Ab., N". S. 287.) A motion to set aside a judgment by cimfessicm, fen- a defect in the statement, is not founded upon an irregularity, so as to require the moving party to specify in hi.s papers, the grounds of the motitm. ( llmnebrenner v. Edgerton, 30 Barb. 185 ; S. C. 17 How. Pr. 363.) The ordinary rule that a party asking for relief must make out his case by a preponderance of proof, is applicable to a motion to set aside a judgment by con- fession. ( miham's V. Hernon, 33 How. 241 ; S. C. 3 Keyes, 99.) On a judgment by confession, under the Code, there is no suit, no recoveiy or adjudication^ either actual or formal, of any court or officer, until the judgment is entered by the clerk ; and it is this act of the clerk that not only creates a lien, but the judgment. Until this entry is made, there is no judgment — nothing of the existence of which notice can be given to subsequent incumbrancers or grantees. (Blydenbargh v. Northrop, 13 How, Pr. 289.) Judgment upon coni'ession (except where the clerk is authorized to enter the same by the first subdivision of § 246, and by $ 384, and except where it may be given at the general term, as provided in ^ 265) must, in the first instance, be en- tered upon the direction of a single judge, or report of referees, subject to review at the general term, aud on the demand of either party as provided in the Code. (Code, $ 27S.) In Johnston v. McAusland, (9 Ab. 214,) a creditor was absent from the coun- try when his attorney, without the creditor's knowledge, accepted for him, from a debtor, a o(mfession of judgment, upon which he entered a judgment. ' The attorney 717 374 PMOCEEDINGS TO A DECBEE. [Book 1 then received from the partner of the creditor, directions to proceed and issne exe- cution. Held, that the judgment was sufficiently accepted, so as to be valid againsv creditors who ohtalued judgments against the debtor after the directions were givei, by the partner. A judgment by confession entered upon an insufficient statement, but not im- peached for actual fi-aud, is good as between the parties. {Miller v. Earie, 24 K.Y. 110.) Judgments by confession, drawn up by the plaintiff, the defendant having no legal adviser, will be carefully scratinized by the court, that they may not be the cause of oppression. (MerrittY. Baker, 11 How. Pr. 456.) Where the defendant is a religious corporation, and as such having no proper deal- ings, except to defray the common expenses of the church, &c., it is bound to ox- plain to its creditors, when it confesses judgments, how the debts arose, for what consideration, and who the creditors are who received large sums of money, and whether the debts are hoiia fide debts of, or donations to, the church, &o. (Stebbins v. East Society of the M. E. Church, Rochester, 12 How. Pr. 410.) A judgment by confession is not absolutely void on the ground of a defective statement, but merely voidable at the instance of a party interested. {Read v. French, 28 N. T. 285. ) (21) Judgment on frivolous demurrer. See ante, p. 247, note (25.) Judgment on the report of a referee. See ante, p. 6.38, note (6.) Judgment dismissing complaint. See ante, p. 316, note (6.) Judgment on appeal. See Post, Book II. chap. 1, note to sec. 5. 718 BOOK II. "PROCEEDINGS SUBSEQUENT TO THE DECREE. CHAPTER I. APPEALS. Sect. 1. Prom what Deceees ok Okders, and on what grounds, AN Appeal lies. 2. "Who mat appeal. 3. Evidence upon. 4. Effect of Appeal. 5. Miscellaneous Provisions. 6. To THE Chancellor, from a Vice Chancellor. 7. To THE Court for the Correction of Errors, from the Chancellor. 8. To the Chancellor from a Surrogate. 9. From a Surrogate to a Circuit Judge. 10. To the Chancellor from a Circuit Judge. 11. To the Chancellor from a Court of Common Pleas. The next step of procedure iu a cause, subsequent to the decree, is to bi'ing an appeal to a higher tribunal, for the purpose of having the decree reversed or modified, if either party is dissatisfied with it, and is advised to I'esort to that measure. The subject of appeals will there- fore claim our attention in this place, before we enter upon tlie manner of carrying a decree into execution. And while upon the subject, we shall not only treat of the ordinary appeals which, according to our arrangement, properly belong in this 719 37G PHOCEEIIIXGS SUnSEQUKNT TO THE DECREE. [Book II. place, but of iippcals in special cases, as, appeals to the cliancellor from circuit judges, and from courts of common pleas, and from surrogates to circuit judges. It will be more conveuieiit to exhaust the subject at ouce, than to return to it again in some other connection. SECTION" I. FROil WHAT DECREES OR ORDERS, AKD OS WHAT GROUNDS, AN" APPEAL LIES. (1) It is impossible to point out all the grounds upon which a party- may appeal from a decree or order of this court; as they are as numei'- ous and as various as the cases themselves. In fact, wherever the court is called upon to determine a question of law or of fact, the decision may be the subject of an appeal by any party who considers himself aggrieved by it. The only case in which a party cannot appeal from the decision of the court is where the determination complained of is merelv the result of the exei-cise of discretion on the part of the judge, (1) From what judgments or orders, and on what grounds. ■\Vrits of error, in civil actions, are abolished by the Code ; and the only mode of I'cviewing a judgment or order, in a civil action, is that prescribed by Title XI of that statute, viz. : By appeal. (Code, § 323.) This provision, while applying to civil actions of every class, does not extend to appeals from decisions, orders and decrees of Suri-ni/ateis' iimrts. (Code, § 471.) These are still regulated by the former practice, and the existing rules of the court. (Van Sant. Eq. Pr. 651.) By the act of April 15, 1854, (Laws of 1854. chap. 270,) an appeal is authorized to be taken to the general term of the supreme court, or the superior court, or court of common pleas, of the city of New York from any judgment, order or final determin- ation nude at a special term of either of those courts, in any special proceedings therein. And §§ 327, 329, 330 and 332 of the Code of Procedure, are made applica- ble to appeals in special proceedings. By section 344 of the Code, an appeal may be taken to the supreme court, from any order affecting a sulstantial right made by a county court, or a county judge, in any action or proceeding. The judgments from which an appeal may be taken etre final judgments. Hence, where a decision is made which is merely interlocntori/ .leaving something to be done, such as an accounting, &c., no appeal lies from the judgment. (McMahon v. Allen, 7 Ab. 1 ; D'hiernms v. Leavitt, 8 id. 59 ; LaiiTence v. Farmers' Loan and Trust Co. 15 How. Pr. 57 ; People ex rel. McSpedon v. Haus. 34 Barb. 69 ; S. C. 21 How. Pr. 178 ; 12 Ab. 204 ; GhiSin v. Cranston, 5 Bosw. 658.) A decree which directs a reference, for the purpose of taking and stating an account between the parties, and for other purposes, and reserves further directions until the coming in and confirmation of the report : and then "that such further order or decree may be made thereon as shall he just." is not a final decree that can be appealed from to the court of appeals ; although it may be final in many particulars. (Crager v. Douglass, 4 How. Pr. 215.) It seems that until the costs are finally adjusted and inserted in the judgment, it is not suflSciently perfected, in form, to allow an appeal. iSherman v. Wells, 14 How. Pr. 527.) Cluip. l.J PROCEEDiyOS SUBSRQUEXT TO THt DECREE. 376 A judgment is not final, so as to be the subject of an appeal, so long as there may bo future litigation under it. Thus, a judgment for the sale of lands, and the dis- position of the proceeds in accordance with the report to be made by the referee, upon a reference therein ordered, to ascertain the shares of the respective parties, is not final, so as to be the subject of an appeal to the court of appeals ; though no provision is made, in the judgment, for a review of the report; or for suspending the actual payment of the moneys, to give an opportunity to appeal. {Tompkins v. Hmtt, 19 N. Y. 534 ; Hm-ris v. Clark, 4 How. Pr. 78 ; Cmger v. Douglass, id. 215.) The judgment from which an appeal to the general terra may be taken, means the same thing as a judgment from which an appeal may be taken to the court of appeals. {Livrence v. Farmers' Loan and Trust Co. 15 How. Pr. 57.) It is said by Daniels, J., in Lihhy v. Rosekrans, (55 Barb. 202,) that the law pro- vides but two modes of correcting errors in legal proceedings : one by motion, when the error is one of form, arising out of a failure to conform to the settled practice of the court ; the other by appeal, when the errors consist in the omission of the court itself to properly observe and apply the law affecting the rights involved in the con- troversy, in making its adjudication upon them. The proper method of reviewing an award of arbitrators is not by appeal but by a writ of error. {Isaacs v. The Beth Hainedrash Sotietu, 19 N. Y. 584 ; Freeman v. Kendall, 41 id. 518.) The appeal under the Code was intended to be a mere substitute for the writ of error in respect to common law judgments and proceedings ; and in respect to equitable proceeding, the appeal is intended to be such a proceeding, and with just such force as was formerly in practice in reviewing proceedings in equity by appeal. {Q-orinlq V. Mcintosh, 22 Barb. 275, 276.) The court of appeals now has the power to review, upon appeal, every actual determination made by the supreme court, at a general term, and the latter court has like power to review every judgment in the county court. (Id.) In regard to final judgments, entered upon the report of referees, or the direction of a single judge, an appeal upon the lav may be taken in all cases, and upon the fad when the trial is by the court or by referees. (Code, § 348.) A judgment is deemed entered by the direction of a single judge when it is entered by the clerk, at the circuit, upon the verdict of a jury under section 264 of the Code ; and from such judgment section 348 authorizes an appeal upon the law, as presented by exceptions taken on the trial, to the general term, without motion previously made at special term for a new trial, {yiorriso^. v. New York c£- Nenit Haven R. R. Co. 32 Barb. 568 ; Moranoe v. Morris, 12 Ab. 164 ; S. C. 32 Barb. 650 ; Jackson v. Fassltt, 12 Ab. 281 ; S. C. 33 Barb. 645 ; 21 How. Pr. 279.) As to the review of specific qiu.itiovs of fact, in equity causes, which have been ordered to be tried by a jury as a substitute for a feigned issue, this is not by appeal, but is specially provided for by rule 40 of the supreme court. An appeal will not lie, in the first instance, to the general term, upon a case con- taining questions of fact. In such a case, application for a new trial must be made at special term. {Collins v. Albany & Schenectady R. R. Co. 5 How. Pr. 432 ; Lotaeh V. ffotchkiss, 17 Ab. 88.) Conclusions of fact found by a judge, at special term, may be reversed by the supreme court on appeal ; but if the latter court affirms the finding at special term, the court of appeals cannot review the decision. ( Waters v. Green, 3 Keyes, 385 ; S. C. 2 Trans. Ap. 346.) Wliere, on a frivolous demurrer to the complaint, judgment is ordered for the plaintiff, and on appeal such order is affirmed, at general term, the judgment of afl^irmance is appealable to the general term, and must be heard there before a review can be had in the court of appeals. {Hollister Bank of Buffalo v. Vail, 15 N. Y. 593.) In regard 'to orders, an appeal is not a matter of course, but is allowed only in tln' cases specified in section 349 of the Code. (Van Sant. Eq. Pr. 656.) Section 349 allows an appeal to be taken from an order made at a special term by a. single judge of the same court, or county, or a special county judge, or by a recorder, or by any recorder's court of any city, in any stage of the action, including proceedings supplementary to execution, in the fbllowing cases : 1. When the order grants or refuses, continues or modifies, a provisional remedy. 2. When it grants Or refuses anew trial , or when it sustains or overrules a demurrer. 8. When it involves the merits of the action, or some part thereof, or affects a sub- stantial right. Vol. I.— 46 721 376 FROCEEDI^'GS SUBSEQUENT TO THE DECREE. [Book II, 4. When the order in effect determines the action, and prevents a judgmont from which an appeal may be talien. 6. AVhen the order is made upon a summary application, in an action, after judg- ment, and affects a substantial right. Section 349 includes an order made out of court, iipon notice ; but in such casi- the order must be first entered with the clerk. And for the purpose of an appeal, any party affected by such order may require it to be entered by the clerk, and it must be entered accordingly. (Code, § 350.) Whenever the decision sought to be reviewed is not a final judgment, and is not embraced in, and forms no part of, such judgment, the appeal is from an order merely, and the right of appeal is to be determined by the principles governing tlie practice .of the court in the latter class of appeals. (Van Sant. Eq. Pr. 656 ; Laurence v.' Farriiers' Loan and Trust Co. 15 How. Pr. 57.) An order from which an appeal may be taken must be such an order as is defined by section 400 of the Code, viz. : " A direction of a court or judge, made or entered in writing, and not included in a judgment." (Van Sant. Eq. Pr. 667.) A mere interlocutory decision upon a trial by the court disposing of the case, cxcc])t that ;i reference to take an account is ordered before final judgment, is not sucli a decision or order as can be appealed to the general term for the purpose of reviewing decis- ions made at the trial, because such interlocutory decision is to become part of, or is to be included in tbe judgment. Hence no appeal, to review the merits of sucli decision, can be taken iintil after final judgment is entered. {Lamrenoe v. Farmeis' Loan and Trii,st Co. 15 How. Pr. 57.) The order from which an appeal is allowed by section 349 when it " involves the merits of the action, or some part thereof, or affects a substantial right," must be something different from a decision during the actual progi-ess of the trial, disposing of some claim made by either party, affecting the relief to be granted, and something other than a conclusion of law included in the decision on which the judgment, in whole or in part, is to be entered. (Id.) Hence, the interlocutory decision, if to be embraced in, and to become a part of, the final judgment, can be reviewed only on appeal from the judgraent. And on the same principle, the order founded on such decision must be reviewed in the same way, and is not directly appealable as an order ; except, perhaps, for the purpose of reviewing the competency of the court to make the order. (Id.) An order of a single justice, refusing to strike out matter as irrelevant and redun- dant, in a pleading, is not an appealable order to the general term. (^Bedell v. Stickle.'s, 4 How. Pr. 432.) Appealable orders, as settled in the 2d district, are : 1st. Those mentioned in section 349 of the Code. 2d. Special proceedings of an equitable nature, such as, under the former practice, were appealable from a vice- chancellor to the chancellor. 3d In special proceedings, not of an equitable nature, wliere an appeal is expressly given by statute, or existed according to the former practice of the supreme court. (Id.) iSpec-ial proceedings are not regulated by section 349, but depend upon the pre-existing laws and practice. (Id.; Matter of Fort Plain & Cooperstomi Plank Soad Co., id. 148.) And the act of April, 1854, in relation to special proceedings, (Laws of 1854, ch. 270.) allows an appeal to be taken to the general term of the supreme court, or court of common pleas of the city of New York, from any judgment, order or determination, made at a special tel'm of either of those courts in any special proceedings therein. Such an appeal will not stay the proceedings unless the court, or a judge thereof, so order ; which order may be upon such terms, as to security, or otherwise, as may be just ; such security not to exceed the amount required on an appeal to the court of appeals. (§ 1.) Sections 327, 3-29, 830 and 332 of the Code are made applicable to appeals in special proceedings. (Id. § 3.) The cases in which it has been decided that an appeal will lie, under the act of 1854, are collected in Wait's Code. p. 686, note to § 349. The cases in which, and from what orders, an appeal lies, are also collected in the same valuable work at page 688 ; and the cases in which no appeal lies, at page 686. The provision in subdivision 2 of section 349, allowing an appeal from an order made at a special term " when it sustains or overrules a demurrer," is apjlicable to all cases where leave to amend is given in connection with the decision on the demurrer, and also to decisions on demurrer to part only of a complaint or answer, containing several causes of action, or defenses. {Cook v. Pomeroy, 10 How. Pr. 221 ; Bauman v. The N. Y. Central JR. It. Co. id, 218.) By the words "a substantial right," in subdivision 3, of section 349, the legisla-^ 723 Chap. 1.] PBOCEEDTN-aS SUBSEQUENT TO THE DECREE. 37G in a case where the matter was fairly a subject for the exeroi«e of .dis- cretiou. (2) In snch cases, the practice of the court will not allow an appeal from the discretion of one judge to that of another. Upon this ture must have intended a fixed determinate right, independent of the discretion of the court, and of some value. Such a right must exist, and be injuriou.sly affected by an order, to bring a case within that subdivision. ( Tallman v. Hinmaii, 10 How. Pr. 89.) The word " merits," as used in that subdivision, means the strict legal rights of the parties, as contra'distinguished from those mere questions, of practice which every court regulates for itself, and from all matters which depend upon the discretion or favor of the court. (Id.; St. John v. West, 4 How. Pr. 329.) An order for an extra allowance, made by a single judge, before judgment, affects a substantial right, within the meaning of section 349. and is the subject of appeal to the general term. (iVje People v. The N. Y. Central R. li. Co. 29 N. Y. 418. But see Union Bank v. Matt, 18 Ab. 247.) So an order denying to the plaintiffs the exclusive right to a, large sum of money may be appropriately said to affect a substantial right, and is therefore appealable, ('rjie Arttscm's Bank v. Treadicell, 34 Barb. 553.) Where a judge, at special term, denied an application, made by the plaintiff in a judgment recovered against a special partnership, that the receiver should pay the amount of such judgment out of the funds of the partnership, in his hands, on two grounds : 1. That the judgment and execution could not, by law, take preference over the demands of the general creditors of the partnership ; and 2. That the receiver's rights took effect by relation back to the commencement of the action in which he was appointed, which was prior to the plaintiff's lien by exe- cution — it was held that the decision, upon either of these grounds, was a decision upon the merits of the application. (Id.) Where costs are allowed to the plaintiff, on an adjustment by the clerk, to which h'j has no legal right, and which the defendant cannot be required to pay without a violation of the statute, and the court, at special term, denies a motion to correct the adjustment, an appeal lies to the general term. (Sluyter v. Smith, 2 Bosw. 673.) An order directing that in default of discovery, the party who is required to make the discovery shall be nonsuited, is an order involving the merits, and affecting a substantial right, and is therefore appealable. {Broderick v. Shelton, 18 Ab. 213.) From a judgment directing that the plaintiff recover of the defendants $42.05 dam- ages, without costs ; that the defendants recover of the plaintiff the like sum, for costs and disbursements ; and that the said judgments be offset against each other, an appeal lies. {Rowland v. Coffin, 47 Barb. 653.) The granting of a now trial, by the county court, under section 866 of the Code, is a matter of mere discretion, not reviewable on appeal. ( Wavel v. Wiles, 24 N. Y. 635 ; Tanner v. Marsh, 86 How. 140 ; S. C. 53 Barb. 438.) (2) The right to make an extra allowance being a matter of discretion on the part of the judge who makes the order, the court of appeals has no power to review the exercise of that discretion, or to examine as to the merits or amount of the allow- ance. {People V. The N. Y. Central R. R. Co. 29 N. Y. 418.) The granting of a new trial, by the county court, under section 366 of the Code, is a matter of mere discretion, not reviewable on appeal. {Wavel v. Wiles, 24 N. Y. 635 ; Tanner v. Marsh, 36 How. 140 ; S. C. 53 Barb. 438.) As a general rule, discretionarv orders are not appealable, and will not be reviewed. in the court of appeals. (Taiiton v. Gh-oh, 8 Ab., N. S. 385 ; S. C. 39 How. 147 ; King V. Piatt, 3 id. 174; Forrest v. Forrest, 25 N. Y. -501, 520.) But where the order appealed from denies a strict legal right, it is so far not discretionary, and may be reviewed. {King v. Piatt, 3 Ab., N. S. 174 ; Leland v. Hathorn, 42 N": Y. 547 ; 'Trac'i v. First National Bank of Selma, 37 N. Y. 523 ; S. C. 5 Trans. Ap. 14.) Where the court below denies the order on the ground of want of power to grant the relief, the order denying such relief is appealable. {Russell v. Conn, 20 N. Y. 81 ^ An appeal is not allowed from an order relating to mere matters of practice, or forms of proceeding. {St. -Tohn v. West, 4 How. Pr. 331 ; Crugei- v. DuiuAass. 2 Code Rep. 123; S. C. 4 How. Pr. 215; Tallman v. Hlnman, 10 How. Pr. 90; Tracy v. N. Y. Steam Transit Co. 1 E. D. Smith, 357.) 723 r^TG PR0CEEDI?;GS SUBSEQUENT TO TBE DECREE. [Book II. ground it is that the courts hare adopted the rule that there can be i;o apjieal upon the question of costs.(a) (3) But if costs are given contrary to statute, or to a standing rule of ihe court, and do not rest in discretion merely, an appeal "will lie.(6) ijo where a party is entitled to costs as a matter of strict right, if the court below refuses to give costs, the erroneous decision as to such costs may be corrected on appeal. (c) And if a party appeals, having a substantial ground of appeal, and brings in the question of costs along Avitli it, he may proceed with respect to the costs, though he does not succeed on the substantial ground of appeal. But a point which, on the slightest consideration, appears to have no substance, is not to be put forward merely for the purpose of covering an appeal on the ques- tion of costs.(fZ ) What has been said above respecting appeals as to costs, must be understood as applicable only to the costs of interlocutory proceedings. The revised statutes authorize an appeal from a decree as to the general costs in the cause, provided the appeal is entered within fifteen days after notice of the decFee.(e) The operation of the rule j)rohibiting appeals for costs is confined to cases in which costs are to be paid by one party to another, and do not form any part of the relief souglit by the bill; and it is liable to excep- tion where the costs are payable out of a fund, or are chargeable upon an estate, or are part of the relief to which a party is entitled, and the facts of the case distinctly appear upon the face of the proceedings themselves; so that it is not necessary, in determining the question of costs, upon the appeal, to enter into any investigation of the nierits.(/) Upon this gi-ound Lord Hardwick, in the case of Ojven v. {(I) 3 Diin. 100 Atty. Gen, V. Bntcher, 4 Enss. 180. Cometer v. Ewing, 1 Molloy, 19. Aahby v. Kiger. 3 Rand. 185. Owen v. Griffith, 1 Ves. 230. (6) Bnloid v. Miller, 4 Paige, 473. Winslow v. Collins, 3 id. 88. Tod v. Tod, 1 Bligh, (New Series) 639. (c) Id. ib. (d) Attorney General t. Bntclier, 4 Rnss. 180. (c) '.; R. S. 605, } 79. (/) Aiigell V. Davis, 4 M. & C. 360. Winsloiv v. Collins, 3 Paige, 88. (3) The general rule is that the court of appeals does not hear appeals upon ques- tions relating to the adjustment and taxation of costs. {People ex rel. lAtmleu v. L''ins, 28 How. 470 ; Collmnb v. Read, 24 N. T. 517 ; Ansn. 10 How. Pr. 353. But s^o McQregor^. Comstock, 19 N". T. 581, per Grover, J.) From an order of the ^•eneral term, affirming an order made at a special term, denying a motion to re-ad- ju.st costs, no appeal will lie to the court of appeals. It is not an appealable order. (People ex rel. Oliite v. Boardman, 41 N. T. 3G2.) It is only reviewable, if at all, i;s an intermediate order, on .appeal from the judgment. (Clarie v. City of Rochester, •■'A N. T. 355 ; McGregor v. McGregor, 32 id. 479.) Costs, in equity cases, are in the discretion of the court, and the giving or with- holding thereof cannot he controlled or reviewed hy the court of appeals. {Staiger V. Shultz, 3 Keyes, 614 ; S. C. 3 Ah., N. S. 377 ; 3 Trans. Ap. 4.) 734 Chap. 1 .] FROCEEDIKGS SUBSEQUENT TO THE DECREE. 377 Griffith,{g) entertained an appeal bj' an incnmbrancer who had brougb t his bill to compel the payment of his charge, ont of an estate which he ' liad extended by elegit upon a judgment, and to Avhom the judge belovr had refused his costs, although he had given him his principal and intei- est ; his lordship holding that an incumbrancer upon an estate, for a just debt, has a lien upon the estate for his costs, as well as his demand ; and that therefore the appeal, although for costs, affected the merits of the case. The same distinction was recognized in Cooper v. Scott,{h) and in Jenour v. Jenour.{i) In the latter case the question arose upon the interest of the parties in a trust fund Avhich had been separated from the general residue ; and the bill prayed that the costs of the suit migh t be paid out of the general estate. Upon the hearing the costs were ordered to be paid out of the general estate ; but on the appeal, although the decree, upon the right to the fund was affirmed, Lord Eldon cor- rected the decree, as to costs, by directing them to be paid out of the particular fund, and not out of the general estate; holding that the costs were not within the common rule. So, in Taylor v. Popham,rr V. Birge, 8 Barb. .S51 : S. C. 5 How. Pr. 323 ; Maltbi/ v. Gh-eene. 1 Keyes, 548 ; Pope v. Divsitiore, 8 Ab. 429 ; S. C. 29 Barb. 367 ; Jones v. Kij), 1 Code Rep. 119 ; Steii'arf: v. Morton. 8 Ab. 429, n. The defendant's remedy is to move, upon excuse, to have the default opened. (Pope v. D'wsmore, supra.) Tet where th'^ court, at special term, makes upon default, an order which it has no authority to 728 Chap. l.J PROCEEDINGS SUBSEQUENT TO THE DECREE. 381 But as respects decrees entered pro coufesso, the rule is not quite so well settled. In Rowley v. Van Benthuysen,{p) the court for the cor- rection of errors decided that an appeal would not lie from an order of the chancellor refusing to vacate an order that the bill be taken pro coufesso, and that the defendant have leave to put in an ans\ver.(g) In ISiO that court decided, in the case of Ahirphy v. The American Life Insurance and Trust Compa7iy,{r) that a defendant in a bill of foreclosure, who suffers the bill to be taken jy7-o confesso, and permits a decree of sale to be made out without opposition, is not entitled to prosecute an appeal. But in 1841, the same court decided that an appeal would lie from a decretal order of the chancellor refusing to open the sale of mortgaged premises and grant a re-sale, on the application of the defendant, although he has permitted the bill to_ be taken pro confesso against him.(«) But it is to be observed, that the appellant in that case, did not ask to set aside or vacate the decree, but only the sale. SECTION 11. "WHO MAY APPEAL. A person having no interest in the subject matter of a suit, or whose interest has ceased since the commencement thereof, cannot bring an appeal.(^) (6) And a mere interest in the costs gives no right of appeal in respect to any other matter.(M) (p) 16 Wend. 3S9. (g) See, also, Iloye v. Penn, 1 Bland, 35. Eingold's case, id. 5, 12. Shye v. Llewellin, Id. 18. McKim V. Tlionii>8on, id. 270. (r) 25 Wend. 249. (s) Ti-ipp V. Cook, 26 Weiid. 243. (*) Eeid r. Vandcihoyden, 5 Cowen, 719. Idley v. Bowen, 11 Wend. 238. (u) Id. ib. make, the party prejudiced may move, at special term, to set aside the order, for irregularity, or may appeal from the order to the general term. (Wilkinson v. Tif- fan'i, 4 Ah. 98.) And the power of the court to grant an allowance to the plaintiff iDoing limited to ten per cent, upon the amount of his recovery, an order awarding to the plaintiff a sum exceeding that amount, affects a substantial right of the defend- ant, and is therefore appealable, even though made upon a default. (Id.) (6) The Code (§ 325) provides that any party aggrieved may appeal, in the cases prescribed in Title XI. Any one of several parties, who is aqgrieved by the judgment or order, or some part thereof, may appeal, whether his co-plaintiffs or co-defendants join in the appeal or not. {Mattison v. Jones, 9 How. Pr. 152 : Brown v. RicTi.ardson, 4 Rob. 60-3.) Such appeal by one will not prevent the others from appealing. {Brown v. Richardson, supra.) Section 325 does not embrace strangers to the action, but 729 381 PROCEEDINGS SUBSEQUENT TO THE DECREE. [Book II. includes only a party to the record, or his repi-esentatives. {Matter of Bristol, \6 Ab. 397 ; E. B. v. B. B. C. 8 id. 44 ; S. C. 28 Barb. 299 ; MaHin v. Kanouse, 2 Ab. 390 ; Beach v. Maijinund, 3 id. 78.) Hence, although a stranger may apply to be relieved from proceedings in an action, yet on the denial of his application, he can- not appeal therefrom. (Matter of Brintot, Huyyiu ; E. B. v. E. B. C. supra.) But a devisee or legatee, although not a party to proceedings before the surrogate, may appeal from a decree made by him, without even obtaining leave of the court. {Lewis V. Jones, 50 Barb. 645. See Parish v. Parish, 42 Barb. 274 ; /Sherman's Appeal, 16 Ab. 397 n. ; Delafield v. Parish, 25 N. T. 9.) So an attorney for a married woman, in an action against her by the husband, may appeal from an order of discontinuance, &c., when his fees and disbursements are not provided for. (Mc- Kenzie v. lihodis, 13 Ab. 337.) And a purchaser at a foreclosure sale may appeal from an order setting the sale aside. (Mortimei- v. Nash, 17 Ab. 229 n. See Mat- ter of Cavuriagh, 14 id. 208 ; S. C. 37 Barb. 22 ; 23 How. 358.) A wife, who is a necessary party to a foreclosure suit, and whose individual right of dower may be afi'ected by the decree, has such an interest as to authorize an appeal by her. {Kie- fer V. Wiiiki-ns, 39 How. 176.) It has been held that the words '' party aggrieved," in section 325, must be taken in a sense comprehensive enough to embrace the rep- resentatives of a deceased party to the suit. {Beach v. Ch'egc/ry, 11 Ab. 203, 209 ; S. C. 1 Hilt. 201.) The same view should be applied to the words ''party appeal- ing," in section 332. (Id.) And an administrator, before he can appeal, should cjuse himself to be made a party, for that purpose. The plaintiff, on the other hand, wishing to proceed by notice, to limit the right of appeal, should cause the adminis- trator to be made a party, under section 121. (Id.) In an appeal from a judgment against several defendants on their joint answer, as being frivolous, all may join, if it be sufficient as respects some of them. {Bank of Coopei-stoi07iv. Corlies, 1 Ab., N. S. 412.) In case of the death of a party after judgment, his representatives may appeal. {Martin v. Kanouse, 2 Ab. 390 ; Beach v. Oregoni, id 203 ; S. C. 1 Hilt. 201 ; 3 Ab. 78.) Where a party dies after the return is filed in the court of appeals, the court, having obtained jurisdiction, has the power to allow his legal representatives to be substituted. {Hastings v. McKinley, 8 How. Pr. 175.) In general, a party in whose favor a judgment is rendered cannot be said to be aggrieved by it, and therefore cannot apply to reverse it. {Fcm-havks v. Corlies, 1 Ab. 155.) But this rule is not universally applicable ; especially in equity cases, where it has always been the practice to allow an appeal from a part of a decree, where the residue thereof was favorable to the party appealing ; and section 327 of the Code clearly recognizes the same practice. (Van Sant. Eq. Pr. 653 ; 1 Monell Pr. 737.) And a party who has judgments for less than he is entitled to is aggrieved, and may appeal. {Rankin v. Pine, 4 Ab. 309.) A voluntary abandonment or dismissal of one appeal has been held, by the court of appeals, to be no bar to a further appeal, by the same party, within the time pre- scribed by statute. {Craft v. Ives, cited Yoorhies' Code, 6th ed. 461, n.) An appeal may be brought by the people of the state, or any state office^- or hoard of state officers, from any judgment or order against them, in any court, without any undertaking or security whatever ; and such appeals shall ojierate as a stay of proceedings on the judgment or order appealed from. (Laws of 1861, ch. 288, § 2.) The statute authorizing prosecutions in farina pauperis does not include appeals, and a pauper cannot appeal as such. {Ostrander v. Harper, 14 How. Pr. 16. See, also. McDonald v. Bank for Savings, 2 How. Pr. 35 ; Bolton v. Gardner, 3 Paige 273 ■; Moore v. Cooley, 2 Hill, 412.) One who has waived his right to appeal cannot do so. A positive waiver of the right to appeal, by a stipulation between the parties, before judgment, in the stibor- dinate courts, will be enforced in the appellate court, and the appeal dismissed. {Townsend v. Masterson, &c.. Stone Dressing Co. 15 N". T. 587.) A state bank, which has been converted into a national bank, under chapter 97 of the Laws of 1865, can take an appeal from a judgment against it, in its name as a state bank, if it be taken within three years. And it will be deemed to continue in existence as a state bank until the termination of such appeal. {Claflin v. Farmers' & Citizen.^' Bank of Long Island, 54 Barb. 228.) Under section 121 of the Code, a receiver appointed upon the failure of the national bank, into which such state bank was converted, would have the right to take and prosecute such appeal ; since, in case the judgment was reversed, he would have the benefit of it as receiver. (Id.) No one can appeal from an order or decree who is not injured thereby ; and even 730 Chap. l.J PROCEEDINGS SUBSEQUEKT TO THE DECREE. 382 Neithei" can a person bring an appeal, in general, unless he was, or represents, a party in the matter in the court below; although he may have an interest in the question. (w) Yet, it is not necessary that the person who appeals shonld be actu- ally a party to the record; provided he has an interest in the question which may be affected by the decree or order appealed from. Even creditors coming in'before the master under a decree, have been held entitled to appeal, although not parties to the bill, because the decree affected their interest.(w) In Hvnfjerford's case,{x) the creditors com- plained that the property had not been applied as it ought; and it was objected that they could not come in under the decree and impeach it; but it was answered that they might, for if the decree contained in itself a wrong disposition of the property, they, coming in as creditors, had a right to appeal, because the decree bound their rights. In Osiorne Y. Us7ier,{y) the same principle is admitted; and it has been held that if the right of a remainderman, or of any person entitled to the estate, in any way, is bound by the decree, he must have a right to appeal from it, as well as the person against whom it was made.(«) Upon this gi-ound it has been determined that a tenant in tail in remainder expectant, after the determination of a prior estate tail (who would not be a necessary party to a suit affecting the entailed estate, against the prior tenant in tail,) has aright to appeal against the decree m that suit; and that he may file a supplemental bill for the, purpose of making himself a party to the suit, in order to appeal from it.(a) It has also been determined that a purchaser under a decree, although not a party to the suit, may appeal from an order setting aside a bid- ding and ordering a new sale before the master.(J) And a creditor coming in before a master and having a claim disallowed on exceptions to the report, may appeal from the order disallowing the exceptions.(c) (i>) CorpoT-ation of I-ndlow v. Greenhouse, I Bligli, (New Series,) 17. Palmer on Appeals, 6. Steele v. Wliite, 2 Paiffe, 478. (w) Gifford v. Uort, 1 Soh. & Lef. 409. (X) Cited id. ib. (J/) 6 Bro. C. C. 20. («) Gifford T. Hort, supra. {It) Id. 411. „ (J) Hvder v. Earl Goivcr, 6 Bro. P. C. 306. (c) Winchelsoa v. Garretty, 1 Jly. & Keen, 253. a partv who is aggrieved by one brancli of a decree does not thereby aqiure a right to call in question another portion of the decree which has no hearing or effect upon his rights or interests. (Hackleti v. Hope, 4 Keyes, 123.) Thus, a plaintiff m an action for the settlement of partnership accounts and the division of the assets, who, after its commencement, has released all his interest therein to one of the defendants, has no right to appeal from a judgment dividing the funds between the defendants! which does not prejudice him, although it may be wrong as to the other parties. (Id.) 731 383 PROCEEDINGS SUBSEQUENT TO TBE DECREE. [Book II. But an appeal cannot be sustained by a person who is not interested in the subject matter. Although there may have been an interest when the suit was commenced, if such interest is terminated during its progress, his right to interfere further in the litigation is at an end.(«Z) Therefore, when a party has released all his interest in the suit, he has no right to appeal from an order made therein which cannot prejudice him, although it may be wrong as against other* parties.(e) Accord- ingly, where a party against whom a decree has been made, sells his right to the subject matter of the suit, an appeal from such decree in the name of such party cannot be sustained. But if the purchaser is entitled to appeal, he must make himself a party to the suit, and bring the appeal in his own name.(/) And it seems that after a decree against the right of a party has been made, such party cannot dispose of his claim to another, so iis to give the latter a right to appeal from the decree.(^) No person can appeal from a decree or order unless he is injured or aggrieved by it. And a party who is aggrieved by one part of a decree only, cannot, by appeal, call in question another part of the decree in which he is not interested, although the appeal is broad enough to embrace it.(A) But it is not necessary a party should have appeared in the court below to entitle him to appeal. Thus it has been held that a party who is aggrieved by an erroneous decree or order of a vice chancellor, may appeal therefrom to the chancellor, although he did not appear to argue the case before the vice chancellor — unless the order or decree appealed from is irregularly obtained, so that it can be set aside on that ground, upon a proper application for that purpose.(7i7i) It is to be observed, that it is only in cases in which the interest of the party wishing to appeal loill he hound hy it, that an appeal will be permitted at the instance of a party not on the record. In no other case can he have ground to complain of the decree or order.(t) Any one of several against whom a decree is rendered, may appeal from it.(yfc) An appeal cannot be prosecuted by the appellant in forma pauperis, but he must give security for costs. And if he succeeds, he may have (rf) Idley V. Bowon, U Wend. 23S. (e) Steele v. VVliito, 2 Paige, 478. Ilacklev v. I'oiiu, 4 Kcves, 123. (/) Mills V. Hoajf, 7 Paige, 18. (fl) W. ib. (n) (Jiiyler v. Mnrelanrt, 6 Paiffe, 273. Iillcv v. IJmvcii, 11 Wend. 2-27. Hone v. Van Schuick, 7 Paige, 221. Hi.i-kley v. llo|ie, 4 Ku\ es, 123. (ft7^) Hyslop v. Powers, i) Paige, S22.' (i) Winolielsoa V. Garetty, 1 Jly. & Keen, 253. \k) JoliiLsou V. Jolinson's liuir.-, 1 iJana, 36U. 732 Chap. l.J mocsEDiNGS subsequent to the decree. 384 dives costs on the appeal, although he sued as a poor person in the court below.(Z) SECTION III. EVIDENCE UPON APPEAL. Appellate courts which proceed according to the course of the civil law, may allow the parties to introduce new allegations or further proofs. Such is the settled practice of the ecclesiastical courts in Eng- land, and of the admiralty courts in this country. (7) But from the organization of the court for the correction of errors in this state, it is doubtful whether any such right exists on appeals from the sentences or decrees of the court of chancery in testamentary causes.{»7) In those courts where the right does exist, it is not a matter of course to receive further proofs upon an appeal.(w) If the appellant wishes to offer new evidence, he should, in his petition of appeal, ask leave to produce further proofs, and state his excuse for not produciug such evidence in the court below.(o) On an appeal however, from the decree of a vice chancellor, the cause is not before the chancellor in the nature of a re'hearing, but is an apjieal, strictly; and on such appeal, no other evidence or pleading can be received or read than that which was read upon the heariug before the vice chancel]or.(j9) And the rule is the same in the court for the correction of errors with respect to appeals from the chancel- lor.(g') Yet if the decree of a vice chancellor is reversed on appeal to the chancellor, it seems the chancellor may, in his discretion, allow the respondent to introduce new testimony as to facts discovered subse- quently to the hearing before the vice chancellor, before he proceeds to make a final decree upon such appeal.(r) (8) [I) Bolton T. G.ivflner, 3 Faipre, 273. (m) Scribner v. Williams, 1 Paige, 550. (n) Id. il). (o) 1(1. ih. (p) Mitcliell v. Lenox, 14 Wenrl. 602. Wendell v. Lewis, 6 Paige, 233. Stndwell v. Palmer, B ill. ](j6. Blooflgoorl v. Cl:irk, 4 id. 574. (?) Dens V. Tliorne, 3 John. 543. (r) Wenrlcll v. Lewis, svpra. (7) This rule, it has been held, is applicable to the present practice, in cases of appeal from a surrogate to the supreme court, {matter of Caujolle's appeal, 9 Ab. 393.) Upon such an appeal, from a final decree, the supreme court may receive newly discovered evidence in addition to the evidence which was before the sur- rogate. (Id.) (8) After argument of a case on appeal fi-om a judgment rendered by a referee, leave will not be given to a party, on motion, to introduce, as part of the case on the 733 385 PROCEBDINOS SUBSEQUENT TO THE DECREE. [Book II. Whuu the case of Mitchell v. Lenox, just referred to, was heard before the chancellor, previous to its going to the court of errors, he suggested that where the newly discovered testimony was in favor of the respond- ent, the proper course probably would be to hear the appeal upon the original testimony; and if the decision of the court below was found to be erroneous, and was reversed on tliat ground, to ask the appellate court, instead of proceeding to make a final decree, to remit the cause to the vice chancellor, with permission to the respondents to open the rule for closing the proofs, so that the newly discovered evidence could be introduced before a final decree was made; or, that after the rever- sal of the decree by the chancellor, the cause should be retained before him with a similar permission. (s) "Where a question arises upon the hearing of the appeal, as to what papers were before the court below, if such papers are not referred to in the order or decree appealed from, resort must be had to the minutes of the clerk, and to the papers marked by him as read, to ascertain what papers were read or used before the vice chancellor.{<) And when a party opposing a motion or petition has papers to read in opposition thereto, and the application is decided in his favor upon the opening of the case, on the papers of the adverse party, if he desires to have the benefit of his papers in opposition to the application, upon appeal, he should have such papers entered in the minutes of the court below and marked as read.(«) It is the duty of the clerk, upon the hearing of a cause before the vice chancellor, to enter in his minutes all the papers read, or which are agreed to be considered as read, or which are. offered in evidence and overruled by the court. And a certified copy of the clerk's minutes is the proper evidence of those facts, upon the hearing of an appeal to the chancellor. If the clerk, by mistake, neglects to enter in his min- utes any paper which was read, or considered as marked and read, before the vice chancellor, the proper course is to apply to the court below to correct the minutes.(D) The party whose duty it is to furnish the papers on the hearing of (s) See 6 Paige, 235. {t) Bloorlgood T. Clark, supra. (M) Id. ib. (V) Stndwell v. Palmer, 5 Paige, 166. appeal, exemplified, or other copies of proceedings on which a warrant of attach- ment was issued ; where the paper was in existence, and known to be so, by the counsel for the applicant, at the time of the trial before the referee, and in the exer- cise of his discretion, he refused to produce them. (Onderdonk v. Voorhis, 2 Eob. 623.) 734 Chap. l.J PROCEEDINGS SUBSEQUENT TO THE DECREE. Sgg an appeal should be prepared with the proper evidence to show what papers were read before the vice chancellor, and, if required, to show that the papers furnished by him are correct copies.(ii;) Depositions read on the hearing in the court below, without objec- tion, cannot be rejected in the appellate coui-t.(a;) SECTION IV. EFFECT OF APPEAL. Wliat questions areirouglit up lyit-l An appeal from the final decree only, does not bring before the appellate court, for review, a question which has been definitively adjudicated and disposed of by an interlocutory decree or order previous to such final decree.(«/) (9) So (w) Irl. il). (a;) Johnson v. Rankin, 3 Bibb, 87. PiUow v. Shannon, 3 Yerg. 508. Eeapass v. Morton, Hardin, 2-26. ()/) Mapos V. Coffin, 5 Paige, 296. Bnllit's heirs v. Thorp, 1 A. K. Marah, 604. Kane v. Whittick, 8 Wend. 219. (9) Upon an appeal from a judgment, the court may review any interlocutory order, involving the merits, and necessarily affecting the judgment. (Code, § 329.) The court of appeals has exclusive jurisdiction to review, upon appeal from a final order affecting a substantial right, made at a general term of the supreme court, in a special proceeding, or upon a summary application in an action, after judgment, any intermediate order involving the merits and necessarily affecting the order appealed from. (Code, § 11, sub. 3.) An unrestricted appeal takes along with it the whole merits of the determination appealed from. (Matter of Lnnngston, 32 How. 20, 46 ; S. C. 34 N. Y. 555 ; 2 Ab., N. S. 3 ; Bates v. Voorhees, 20 N. T. 525.) An order removing a trustee is appealable, and upon siich appeal, the court of appeals will examine the affidavits and evidence, and the whole merits of the case. (Matter of Livingston, supra.) On an appeal from a judgment, only, the appellate court will not enter into a con- sideration of the evidence, in order to determine the correctness of the verdict {Bedell v. Commercial his. Co. 3 Bosw. 147.) The general provision of section 329, authorizing the court, upon an appeal from a judgment to review anv intermediate order, embraces an order refusing a new trial. (Pumpellyy. Village of Oivego, 22 How. 385; S. C. 13 Ab. 389; Aff'd, 26 How. 602; Covlev. City of BrooMvn, 53 Barb. 41, 62, per Gilbert, J. See Lane\. Bailej/, 1 Ab.. N. S. 407 ; S. C. 45 Barb. 119 ; 30 How. 76.) "Where an appeal is taken from a judgment, and there has also been an appeal from an order denying a new trial, it is the better course to hear both appeals together. (Lane v. Bailey, supra.) On an appeal from a final judgment, an order of the court below, striking out a part of a pleading may be reviewed. (Cowles v. Cowles, 9 How, Pr. 361.) On an appeal to the court of appeals from a final judgment, an order denying a motion to stay the trial of the cause until the decision of another cause is nofreview- able, because it does not involve the merits. (James v. Chalmers, 6 N. Y. 209 : S. 0. 1 Code Rep., N. S. 413.) And upon an appeal to the court of appeals, an order made at a special term, or by a judge at chambers, cannot be-reviewed unless 725 386 riiOChEDLYGS SUBS/:QUKjYT TO THE DECJiEp:. [Ijciuk" TI. it has been reviewed at general terai. {Kanouse v. Martin, 6 How. Pr. 240 ; S. C. 1 Code Kep., N. S. 885 ; Lake v. G-ilson, 2 N. Y. 188; S. C. 3 How. Pr. 420; y.uey V. I'liiUti^s, 1 N. Y. 610; S. C. 1 Code Rep. Ill ; Cfruver y. Coon, 1 N. Y. 633 ; Grarie v. Freela>id, id. 228 ; S. C. 3 How. Pr. 218.) It is said by Mr. Van Santvoord, (Eq. Pr. 6G5, 057, 058.) that section 329 does not a'liow, on an appeal from the judgment, an indiscriminate review of all interlocutory orders, even such as may be said, in some sense, to •' involve the merits." The orders which may be so reviewed must be also orders " necessarili/ affecting the judgment;" and also decisions and orders which are not a jwrt of. or "included in " the judgment, according to the definition of an order given in section 400 of the Code. The order from which an appeal is allowed by section 349, when it " involves tlie merits of the action, or some part thereof, or affects a substantial right," must be something different from a decision during the actual progress of the trial, disposing of some claim made by either party affecting the relief to be granted, and something other than a conclusion of law included in the decision on which the judgment, in whole or in part, is to be entered. {Laiwenee v. Farmer's' Loan and Trust Co. 15 How. Pr. 60, per Bosworth, J.) The interlocutory decision, therefore, to be embraced in, and to become a part of, the final judgment, can be reviewed only on appeal from t\\e judgment. And on the same principle, the order founded on such decision must be reviewed in the same way, and is not directly appealable as an order ; except, perhaps, for the purpose of reviewing the competency of the court to make the order. (Id. p. 62.) The superior court of New Yorlt has decided that on an appeal to the general term of that court from a judgment, the court will not review an order made at a special term, denying a motion for a new trial. That such an order can only be reviewed on an appeal from the order itself. {Marquat v. La Farge, 5 Duer, 559 ; Brown v. U'Khardson. 1 Bosw. 402. And see FVy v. Bennett, 16 How. Pr. 385.) But where the order necessarily affects the judgment, that is, where the erroneous judgment is, in whole or in part, the result of the erroneous order, the latter may be reviewed on an appeal fi'om the judgment ; as, for example, in case of an order overruling a demurrer as frivolous, or an order striking out a pleading as sham or irrelevant, aud the like. (Van Sant. Eq. Pr. 666 ; Cowles v. Cowles, 9 How. Pr. 361.) On an appeal from a judgment of the special term, the general term cannot review the question whether an order of arrest was properly granted. {Hoss v. Wert, 2 Bosw. 360.) It is not the policy of the Code, in respect to appeals to the court of appeals, to allow a review of intermediate orders, unless they are such as in effect terminate the action, and prevent a judgment from which an appeal would lie ; or unless upon appea'. from a final judgment. {Hv,inphrey v. Chamberlain, 11 N. Y. 274, 276.) A party cannot take advantage of his own negligence in permitting the introduc- tion of improper or incompetent evidence, to reverse a judgment rendered against him, thereon. (Monk v. Union Mut'ttal Life Ins. Co. 6 Rob. 455.) An appeal from a jtidgment does not bring up for review an order of reference made at a special term. If erroneous, an appeal should be taken directly from the order. (Terrt/ v. McNiel, 68 Barb. 241.) If the complaint, in an action for negligence, is dismissed on the sole ground that the defendant is not liable, as matter of law, and the question of contributory negli- gence, on the part of the plaintiff, is not passed upon, it will not be inquired into by the appellate court. (Kimmel v. Burfeind, 2 Daly, 165.) Where a finding by the court adversely to a fact claimed by the unsuccessful party is necessary to support the judgment, and the evidence warrants it, such adverse finding will be presumed. ( Whittaker v. Chapman, 3 Lans 155.) But the appel- l.Tte court cannot presume that a fact necessaiy to sustain the judgment was found by the referee, if the case expressly shows that it was not found. {Fuller v. Howe, 59 Barb. 344.) Where the court overrules exceptions to the report of a referee, to whom it was referred to state an account, &c., and renders judgment accordingly, upon appeal from the Judgment, the court will not review such order, unless there are exceptions to conclusions of law. (Russell v. Buflon, 4 Lans. 399.) Questions as to the amount of damages are not reviewable in the court of appeals; but only the question whether any, or more than nominal damages are recoverable. (ini v. FoHy Second street, &c., R. R. Co. 47 N. Y. 317.) 736 Clnip. 1.] PROCEEDINGS SUBSEQUENT TO THE DECREE. Sgg upon ail appeal from an oi'der carrying into effect a previous interlocu- tory order which has not been appealed from, the appellant is not entitled to have the order appealed from, reversed, upon the ground that the previous order, not appealed from by him, was erroneous.(2) But where the decree to be pronoimced in the appellate court upon the matters appropriately brought up upon the appeal, requires the modification of some previous oi'der to make it consistent with such decree, such order may be modified accordingly. That principle, how- ever, applies only to cases where the different orders or decrees are so blended together that the decisions upon the one appealed from, neces- sarily involves the consideration of the other.(rt) And it has been held that no such necessary connection exists between a decree confirming a mastei-'s report upon a reference, and the previous order directing the reference and settling the principles upon which it is to be con- ducted.(5) The opinion of the court in the case of Atkinson v. Manlcs,{c) seems to have been misunderstood by the reporter, or he would not have stated in the head note of that case, as one of the points decided, that "an appeal from the final decree necessarily opens for consideration all prior orders or deci'ees any way connected with the final decree." It appears from the statement of facts,( Paijru, 473. (o) .viiic'iic.aii Ins. Co. v. Oakluy, 9 Paige, 496. 748 Chap. 1.] PROCEEDINGS SUBSEQUENT TO THE DECREE. 395 SECTION V. MISCELLANEOUS PROVISIONS. On an appeal, the burthen lies upon the appellant. He must show the decree or order appealed from to be clearly wrong ; otherwise it will be affirmed.(j9) (13) Where the appellate court reverses the decree appealed from, it exer- cises, as it were, an original equity jurisdiction, and places that decree upon the record which the court below ought to have made.(^) (14) (p) Lloyd V. Ti-imleston, 2 Molloy, 81. ((?) Diffenderffer v. Winder, 3 Gil! & John. 311. (13) Statutes giving the right of appeal are always liberally construed in further- ance of justice ; and such an interpretation as will work a forfeiture is not to be favored. {Pearson v. Lovejny, 53 Barb. 407 ; S. C. 35 How. 193.) (14) Time for appealing. The appeal to the court of appeals, under subd. 2 of § 11 of the Code, must he taken within siocty days after written notice of the order shall have been given to the party appealing. Every other appeal allowed by the 2d and 3d chapters of title XI. part II, must be taken within two years after the .judgment shall be perfected, by filing the judgment roll. (Code, §331.) The appeal allowed by chapter 4 of title XI, part II, (that is, appeals upon the law, to the general term from a judgment entered upon the report of referees or the direction of a single judge in the supreme court, and the supeiior coxirt and court of connnimi pleas of New York, in all cases, and upon the fact when the trial is by the court or referees, and from orders made by a single judge at a special term, or out of court, upon notice, in the cases specified in §§ 349, 350,) must be taken withiu thirty days after written notice of the judgment or order shall have been given to the party appealing. (Code, § 332.) Section 349 includes orders made out of court, upon notice ; but in such a case the order must first be entered with the clei'k, and for the purpose of an appeal, any party atfected by such order may require it to be entered with the clerk, who is bound to enter it. (Code, § 350.) Section 332 applies to appeals from orders made in special proceedings. (Laws ofl854, p. 592, §2.) An appeal to the supreme court from an inferior court must be taken within two years after the judgment shall be perfected by filing the judgment roll. (Code. § 331.) There can be no appeal until the judgment is perfected in form, and entered, {Sherman v. Wells. 14 How. Pr. 527 ; ) and the judgment roll filed. (McMahoH v. Harrison, 5 How. Pr. 360 ; Bradley v. Van Zandt, 3 Code Rep. 217.) But in a case where the appeal was taken on the same day, but before the filing of the roll, this was held sufficient. (Bliideni/urgh v. Cotlieal. 5 How. Pr. 200; S. C. 4 N. T. 418; approved in Jones v. Porter, 6 How. Pr. 286.) The time to appeal must be computed from the date of the entry of the order or judgment. (Grallt v. F'inch, 24 How. 193.) And in computing that time, the first day is excluded, by § 407 of the Code. Hence an order entered May 27, is appealed from in time by serving notice of appeal on the 27th of .Tune. (Id.) If the party obtaining the judgment omits to perfect it. the other party may com- pel him to do so, in order that an appeal may be taken. {Batik of Geneva v. Hotch- kiss, 5 How. Pr. 478 ; McMahon v. Harnson, id. 360 ; Pnrdv v. Peters, 15 Ah. 160 ; S. C. 23 How. 328 ; Peet v. CowenJioven, 14 Ab. 56 : Lentilhon v. Mayor, &c., of New York, 1 Code Rep., N. S. Ill ; S. C. 3 Sandf. 721.) In like manner there can be no appeal from an order until it is entered and the moving papers filed with the clerk. {Smith v. Dodd, 3 E. D. Smith, 215 ; Marshall V. Francisco, 10 How. Pr 147.) This is equally true in respect to an order made out of court, on notice, which, under section 350 of the Code, we have just seen, any party aflfected by it may, for the purpose of an appeal, require the clerk to enter. An order made on an application to set aside a judicial sale, under a judgment of 749 395 PROCEEDINGS SUBSEQUENT TO THE DECREE. [Book II. foreclosure, on the ground of fraud, is appealable within the two years prescribed in section 331. {King v. Piatt's ex'rs, 34 How. 26 ; S. C. 8 Ab., N. S. 174 ) A judgment, in a foreclosure suit directing a sale of the premises and payment of any deficiency is final, and may be appealed from before the coming in of the report of sa;e. The time of appealing from it is reckoned from the date when notice thereof is given to the defendant. (Morris v. Murange, 4 Ab., N. S. 447 ; S. C. 38 N. Y. \1'1.) Where notice of such a judgment was served on the defendant on the 16th of February, and his notice of appeal was not served within 30 days from notice of the judgment, it was held that the right to appeal was lost ; although the rcj)ort of sale was not confirmed until May 26, and notice of the order confirming the report was not served until November 25, of the same year. (Id.) If a party moves to set aside a proceeding for irregularity, and fails in his motion, and if, during the pendency of the motion, the time to appeal expires, the right of appeal will be lost. (Rerwail v. Harris, 2 Code Kep. 71 ; S. C. 1 id. 125 ; 2 Sandf. 641.) Where service of notice of the judgment or order is by mail, double the thirty days is allowed the party in which to bring his appeal, by § 412. (Dorlon v. Lewis, 7 How. Pr. 132.) Notice of appeal must be served on the clerk, as well as on the adverse party, with- in the thirty days. ( Westcott v. PLatt, 1 Code Rep. 100.) Where notice of appeal was mailed to the clerk, on the 80th day, but not actually received until four days afterwards, it was held that the appeal was of no effect. {Murris v. Morange, 20 How. 247 ; S. C. 17 Ab. 86 ; 38 N. Y. 172 ; 4 Ah.. N S. 447.) Where the time for appealing is fixed by statute, the court has no power to extend the period so fixed. (SalUs v. Butler, 27 N. Y. 638 ; S. C. 27 How. 688 ; Wait v. Van Allen, 22 N. Y. 819 ; Humphrey v. Chamherlam, 11 N. Y. 274 ; Bryant v. Bryant. 4 Ab., N. S. 138 ; S. C. 7 Rob. 49 ; Cotes v. Carroll, 28 How. 436 ; Morris V. Morange, 26 id. 247 ; S. C. 17 Ab. 86 ; 38 N. Y. 172 ; 4 Ab., N. S. 447 ; Gallt V. Fmch, 24 How. 193 ; BllswoHh v. Falton. id. 20 ; Fry v. Bennett, 16 id. 385 ; S. C. 7 Ab. 352 ; 2 Bosw. 684 ; Marston v. Johnson, 13 How. Pr. 93 ; Van Sant. Eq. Pv. 654 ; Shericood v. Piatt, 11 Ab., N. S. 115. But see Toll v. Thomas, 18 How. Pr. 324.) Nor can the court effect the same result, indirectly, by ordering a new date to the judgment. {Humphrey v. Chamberlain, 11 N. Y. 274 ; Bryant v. Bry- ant, 7 Rob. 49 ; S. C. 4 Ab., N. S. 138.) And the court has refused to set aside a judgment, for the mere purpose of relieving a party from the loss of the remedy by appeal, although it occurred without any fault or neglect on his part. (Marston v. Johnson, 13 How. Pr. 93. And see Fry v. Bennett, 16 id. 885.) The extension of the time to file and serve exceptions, or to serve a case with exceptions, does not also extend the time to serve a notice of appeal. (iSalles v. Butler, 27 How. 233 ; S. C. 27 N. Y. 688. But see Sherman v. Wells, 14 How. Pr. 522 ; Jackson v Fassitt, 33 Barb. 645 ; S. C. 21 How. Pr. 279 ; 12 Ab 281.) An admission of due service of notice of appeal will be regarded as a waiver of the right to object that such notice was not served within the period limited by law. (Striwer v. Ocean Ins. Co. 9 Ab. 23 ; S. C. 2 Hilt. 475.) Notice of judgment or order. — A party seeking to avail himself of the statutory limitation of his adversary's right to appeal should be held to strict practice. (Cham- pion v. The Plymwith Cong. Society, 42 Barb. 441 ; Sherman v. Wells, 14 How. Pr. 522; Yorks v. Peck, 17 id. 192.) A notice of the entry of a judgment, rendered upon the report of a referee, directing the payment of money, served before the costs are finally adjusted, will not have the effect to limit the right of the opposite party to appeal to the general term. (Id.) The practice allowing a party to enter and docket his judgment, without notice of taxation, is allowed merely to prevent delay in obtaining his lien and securing his demand. It would be unjust to permit him so to use the privilege as to shorten the time within which his opponent may appeal, or embarrass him in the exercise of that important right. (Per. J. C. Smith, J., id.) Where there has been laches in moving, a motion to dismiss an appeal on the ground that it was brought after the time allowed by law for appealing had expired, will be denied. (Stevenson v. McNitt, 27 How. 335.) Where the fonn of a judgment had been drawn up and settled before the judge who tried the cause, and he had directed the clerk, in writing, to enter it, and had signfed it with his initials, according to the customary practice, but the judgment roll had not been made up and filed — held, that while the judgment remained thus incom- plete, notice of it could not be given to the unsuccessful party, which would have the effect to limit his time for appealing. (Sherman v. Postlej, 45 Barb. 348.) Notice 750 Cbap. 1.] PROCEEDINGS SUBSEQUENT TO THE DECREE. 305 Wlio entitled to he heard.'] All parties interested in supporting the decree or order appealed from are entitled to be heard in support of the decree; but no party, except the appellant, can be heard in support of the appeal. If, therefore, any party who is not included as a co-appel- lant, in a petition or notice of appeal, is desirous of appealing, he must present a separate petition or give a separate notice ;(r) otherwise he will be precluded from all benefit of the appeal, even though the result of it should be to show that the decree was completely wrong, as well against him as against the appellant. Thus where one of several defendants appealed, aud an order was made dismissing the bill, upon grounds which were equally applicable to other defendants who did not join in the appeal, it was held that snch other defendants could have no benefit of the order, although it rendered the decree useless.(*^) (r) 2 Smith, 30. 3 Dan. 124. (s) Tasker v. Small, 1 C. P. Coop. Ecp. 205. cannot be given until the judgment has arrived at that state of completeness which is a final determination of the rights of the parties by record evidence, and when also an appeal can be taken. (Id. ; Sherman v. Wells, 14 How. Pr. 522.) An order made out of court upon notice, must be entered with the clerk before the notice thereof will begin to limit tlie time for appeahng. (Crollt v. Fincti, 24 How. 193.) Until written notice of the judgment or order is served, the time for ap;ealing continues without limitation. (Pry v. Bennett, 6 How. Pr. 402.) In order to limit the time for appealing to thirty days, after notice of the judgment or order, there must, in all cases, be a service of written notice. Actual knowledge is not sufficient. {Staring v. Jones, 13 How. Pr. 423 ; Rankin v. Pine, 4 Ab. 309 ; Fry v. Bennett, supra. And see Leavy v. Roberts, 8 Ab. 810 : S. C. 2 Hilt. 285 ; Gay v. Gay, 10 Paige, 370 ; People ex rel. Backus v. Spaulding. 9 id. 607.) A party is not limited, as to the time for appealing from his own judgment, entered by himself until served with written notice thereof, by the adverse party. (Rankin V. Pine, 4 Ab. 309.) A notice of judgment, served by the attorney, without being signed by him, or mentioning his place of business, is a nullity. (Torks v. Peck, 17 How. Pr. 192.) So of a notice which omits to state in what clerk's office the judgment is entered. (Valton V. National Loan Fund Life A.ssnrance Society, 19 id. 515.) Notice of a judgment of foreclosure and sale, and for payment of the deficiency, if any, may be given, so as to limit the time for appealing, immediately on the entry thereof (Morris v. Morange. 38 N. T. 172 ; S. C. 4 Ab., N. S. 447 ; 17 Ab. 80 ; 24 How. 247.) Where an order is made, settled and entered, and a copy served on the opposite party, but is afterwards modified and re-settled by order of the judge, the party obtain- ing the order, if he would limit the time in which the opposite party may appeal, must cause it to be entered as finally settled, and serve a copy of it. (Bowman v. Earle, 3 Duer, 691.) After the plaintiff's proceedings have been stayed, except that leave is reserved to him to enter judgment, a notice of the entry of judgment, served by him, is in viola- tion of the stay, and will not limit the time within which an appeal may be taken. ( White V. Klinken, 16 Ab. 209.) The insertion, by leave of the court, in the judgment in an action for the return of personal property, of an award of the return of the property claimed, as an alterna- tive, it having been omitted when the judgment was entered, is a material alteration, and the defendants are entitled to notice of the change having actually been made, or the entry of the new judgment. Mere notice of leave to make such amendment is not sufficient to start the running of the time for bringing an appeal. (Broun v. Hardie, 5 Rob. 678.) 751 396 rROCEKDriyos suhsequkjXt to the decree- [Book II. ISTor can the appellate court reverse a decree against a party who has not appealed, even though the court below had uo jurisdiction to make the decree against him.{<) It seems, however, that if the result of the appeal bad been other- wise, and the appeal had been dismissed, or the decree only slightly varied, the defendants who did not appeal would, if they had been heard in support of the decree, have been entitled to their costs, either to be paid directly by the defendant who appealed, or by the complain- ant; such costs to be added to the complainant's own costs, and reim- bursed to him by the appellant.(«) What points may ie raised upon appeal] An appellate court will not decide an appeal upon a ground which has not been passed upon or submitted to the court below.(t)) Nor will it allow new points to be raised upon the hearing of the appeal ;(?«) (15) that is, uo party shall be (<) Tate V. Liggot, 2 Leigh, 84. (u) Vide Stocken v. Stocl^en, and Stnbbs v. Sargon, cited 2 Leigh, 257. (II) 2 Hoff. Ch. Pr. 53. Franklancl v. McGnstj-, 1 Knapp, 274. Ringgold's case, 1 Bland. 14,21. (70) Chamlov v. Lord Dansauy, 2 Sch. & Lef. 712. Barnes v. Lee, 1 Bibb, 526. Morgan v. Ciurie, 3 A. ii. Marsh. 294. (15) Nor will an appeal be heard and decided upon exceptions taken on the trial, to which tiie attention of the court was not directed on the argument of an appeal from the judgment. {Cmnmings v. Morris, 3 Bosw. 560.) Formal and preliminary objections, not involving the merits of a motion, will not be considered upon appeal unless it appears, affirmatively, that they were taken and overruled at the hearing of the motion. (Merritt v. Thompnon, 1 Hilt. 551.) The objection that an order does not conform to the decision actually made, cannot be considered, on appeal therefrom. (Bhle v. Haller, 6 Bosw. 661 ; S. C. 10 Ab. 287.) So, objections to motion papers which might have been remedied, by amendment, at special term, cannot be considered on the argument of the appeal. (Jackson v. SmitTi, 16 Ab. 201 ; S. C. 25 How. 476.) On an appeal from a judgment where there is conflicting evidence, the appellant cannot raise the question that the verdict was against evidence. That can be done only on a motion for a new trial, (Antliomi v. Smith, 4 Bosw. 503 ; Hoxiev. Crreene, 37 How. 97 ; Foote v. Roberts, 7 Rob. 17,) except where the evidence on one side is mere information and belief, while on the other it is positive knowledge. (Burant V. Einstein, 5 Rob. 424 ; S. C. 35 How. 223.) The court, at general term, cannot find the facts on which to base a final judgment. They must either have been conceded on the trial, or found by a jury. (Purchase V. Matteson, 25 N. T. 211 ; S. C. 25 How. 161.) Nor, on appeal from a judgment of the special term, can the general term review the question whether an order of arrest was properly granted. (Ross v. West, 2 Bosw. 360.) A question as to the jurisdiction of the court, it seeias, cannot be raised for the first time on appeal. (Mosselman v. Caen, 21 How. Pr. 248; S. C. 34 Barb. 66. See, also, BidAJoell v. Astor Mutual Ins. Co. 16 IST. T. 263.) Where the complaint fails to state a cause of action, and the defect is not remedied by proof on the trial, the objection may be taken on appeal from the judgment, although not raised on the trial. (Cole v. Blunt. 2 Bosw. 117. But see, contra. Pope V. Dvasmure, 29 Barb. 367 ; S. C. 8 Ab. 429 ; Brewer v. Irish, 12 How. Pr. 481.) An appellate court may, and ought to take an objection apparent on the record, and which goes to the merits of the cause, although not taken in the court below, especially where the rights of infants are concerned. (iSanfordv. Granger, 12 Barb. 392.) . An objection which was not raised at the trial, and which, if it had been, might possibly have been obviated, cannot be used as a ground of appeal, (Stewart v. 75a Chap. 1.] PROCBEDTXGS SVBSEQUEyr TO THE DECREE. 396 SmAth, 14 Ab. "5 ;) or raised upon the appeal. [Colwell v. Lawrence, 24 How. 324 ; Smlih V. Floyd, 18 Barb. 523 ; Smerson v. BooU, 51 id. 40 ; Sutherland v. Hose. 47 id, 144 ; Slpperli/ v. Steirart, 50 id. 62 ; Fan Deusen v. Chartei- Oak Fire amd Marine Ins. Co. 1 Rob. -55 ; S. C. 1 Ab., N. S. 349 ; .Jackson v. ^Smii/i, 16 Ab. 201 ; Crooke v. Mali, 11 Barb. 205 ; Union Bank of Troi/Y. Sargeant, 35 How. 87 ; S. C. 53 Barb. 422 ; Forrest v. Havens, 38 N. Y. 469 ; Hazard v. Spears, 4 Keycs, 469 ; Wolfe V. Sectiriti/ Fire Ins. Co. 39 N. T. 49 ; iJeec? v. Gfannon, 3 Daly, 414.) An appeal to the general term from a judgment at special term, duly taken by the unsuccessful party, is a waiver by him of all irregularities in the judgment of which he was aware and might have taken advantage by motion, at special term, before taking his appeal. {Peoplex. Allanv & Susquehanna M. R. Co. 39 How. 49 ; S. C. 8 Ab., N. S. 122 ; S. C. 2 Lans. 459.) But objections may be urged on an argument at general term which were not raised on the trial, if they are such as could not have been obviated at the trial; (Pepper v. HaigTit, 20 Barb. 429.) The appellate court will intend that everything necessary to sustain the verdict was proved, unless the. omission was taken advantage of by exception in the court below. (Crooke v. Malt, 11 Barb. 205.) On appeal from an order made on motion, where no papers are read in opposition to the moving affidavit, every intendment is in favor of the statements contained in such affidavit. (■Jackson v. Smith, 16 Ab. 201.) "When, on the trial of an action, a fact is assumed by the court and counsel to exist, and the case is disposed of upon that assumption, the non-existence of the fact in the case presented to the court, on a motion for a new trial, cannot be urged in opposition to the application for a new trial. (Sipperly V. Steirart, 50 Barb. 62.) What is assumed as true, on the trial, cannot be called in question on appeal. (Munson v. Hegeman, 10 Barb. 112 ; S. C. 5 How. Pr. 223 j Paigev. Fazackerly, 36 Barb. 392 ; Fake v. Whipple, 39 id. 339 ; affirmed, 39 N. T. 394.) Where, on the trial, no request is made that a certain question of fact be submitted to the jury, or ob.jection taken to the insufficiency of proof of a demand before suit brought, the party cannot avail himself of such omissions upon appeal to the general term. (Slwfer v. Ghitst, 35 How. 184 ; S. C. 6 Rob. 264 ; Carnes v. Plait, 6 Rob 270.) On. appeal, the respondents are entitled to the benefit of any presumption which will uphold the judgment, in the absence of evidence properly in the case, ujion the point in question. (Lee Bank v. Satterlee, 1 Rob. 1 ; S. C. 17 Ab. 6.) Where the charge of the judge, in submitting special questions offset to the jury, is omitted in the case, it will be presumed on appeal, when it does not appear to the contrary, thnt the charge was correct. (Marine Bankv. ClementB, 6 Bosw. 166; S. C. 31 N. T. 33. See, also. Parsons v. Broirn, 15 Barb. 590 : Winter-son v. Eighth Aremie R. R. Co. 2 Hilt. 389 ; Carnes v. Piatt, 6 Rob. 270; Hogan v. Cregan, id. 138.) On appeal, the court will assume that the circumstances properly hearing on a question of negligence were submitted to the jury as a question of fact, and were duly considered by them ; and after a verdict in favor of the plaintiff, it cannot sny that on the facts proved, negligence was imputable to him. (Kenny v. First National Bank of Albany, 50 Barb. 112.) Where the objection that there is a failure to prove the cause of action in its entire scope and meaning is taken, on a motion, at the trial before a referee, to dismiss the complaint upon the plaintiff's evidence, it is available on appeal from a judgment for the plaintiff upon the referee's report in his favor, although no exceptions were taken to the report, upon the ground that the cause of action, as found, was not that set forth in the complaint. (Patterson v. Patterson, 1 Rob. 184 ; S- C. 1 Ab . N. S. 262; contra, Boylev. Mulran, 7 Ab., N. S. 258; S. C. 1 Sweeney, 517.) Where the issue is such as to entitle a party, on proper demand, to a trial by jury, and he omits to claim such right, he cannot afterwards, on appeal, object to the mode of trial. (Pennsulvania Coal Co. v. Delaicare & Hudson Canal Co. 1 Keyes, 72.) If an objection that the judgment is erroneous in form is not made in the court below, or by application to that court, it cannot be raised in the court of apiioais. (BucK^. Remsen, 34 N. Y. 383.) So, as to an objection that the verdict was against evidence. (Id.) As a rule, a party cannot, on appeal, raise a point which was not raised in the court below, nor insist on an objection not taken there, and rely upon it for reversal of the judgment. (TalcottY. Rosenberg, 8 Ab., N. S. 287; S. C. 3 Daly, 203.) Nor can he raise questions upon the charge of the court below, which are neither affirmed nor denied thereby. To bring up such questions, he should call the atten- Vol. I.— 48 753 396 PROCEEDIXOS SUBSEQUENT TO THE DECREE. [Book II. tion of the court thereto, by specifically requesting the judge to charge as to them, and excepting to his refusal to do so. (Hoganw. Crec/an, 6 Rob. 138.) Genera] exceptions to the charge of the judge are not available upon appeal. {Paige v. Wil- Utt. 38 N. Y. 28; S. C. 5 Trans. Ap. 27.) A general exception to all the findings, both of law and fact, except as to some which ar6 enumerated, does not bring up for review an objection to the allowance of interest on the plaintiff's account for too' long a period. To avail anything, the exception should point out the precise objection, so that the plaintiffs may have tlieir election to remit the excess of interest. {GhnJiam v. C/ir •sta', 37 How. 279; S. C. 2 Keyes, 21 ; 1 Ab , N. S. 121 ; 32 IIow. 287. See. also, Srlckson v. SmitJi. 38 How. 451; ChiWhiick v. Vernain, 42 N. Y. 432; P'hilUn v. Patr.Lk, 6 Ab., N. S. 284.) The decision of the sn[)reme court upon an application for a new trial, based, not upon alleged errors in law, but upon considerations addressed to the discretion of the court, or its favor^such as newly discovered evidence, or surprise — cannot be reviewed on appeal to the court of appeals. (Marvin v. Marvin. 4 Keyes, 9 ; S. C. 41 N. Y. 619, n.) An appeal from a judgment reversing the decision of a referee, not stated therein to be based upon questions of fact, brings up for review questions of law, oiily. (Case V. PTie'rs. 39 N. Y. 164.) The findings of a referee upon questions of fact, when not without evidence to support them, are conclusive upon the court of ai^icals, and are not subject to review there. (Ostr'tJider v. Fdloxrs, 29 N. Y. 350 ; S. C. 5 Trans. Ap. 131.) But when the finding of a fict is wholly unsupported by the evi- dence, the error is one of law, and miy be reviewed by the court of appeals. (Masinn V. Lnrl. 40 N. Y. 476; Wifinan, v. C.i'.lls, 41 id. 159.) And this is so, even though the judgment upon the referee's report has been affirmed, and none of the findings of facts have been reversed by the general term. (Putnam v. Hubbell, 4,2 N. Y. 106.) If tliere is no competent evidence to sustain the findings of fact, or if the undisputed evidence establishes the contrary, it then becomes a question of law, and may be examined on appeal. (Fellovs v. JVorthriip, 39 N. Y. 117.) When the appeal is from an order refusing a new trial, questions of law. only, can arise on the hearing. (Bast River Bank v Kennedy, i Keyes, 279 ; S. C. 9 Bosw. 543.) Upon appeal from an order of the supreme court at general term, reversing a judg- ment and ordering a new trial, made upon questions of both law and fact, it is, by § 264 of the Code, made the duty of the court of appeals to determine whether it was correctly made upon cither ground. (Colemin v. Second Avenue R. R. Co. 38 N. Y. 201 ; S. C. 6 Trans. Ap. 146 ; 35 How. 643 ; 48 Barb. 371.) Where the testimony in a case was conflicting, the finding of a referee, thereon, cannot be reviewed on appeal. If wholly without evidence to sustain it, the finding may be reversed. (Porter y. Riickman, 38 N. Y. 2 0.) Findings of fact are not open to review in the court of appeals, when there is any evidence sustaining them ; unless it appears from the order directing a new trial that it was granted upon ques- tions of fact and law. (Draper v. I^'tonirvel, 38 N. Y. 219 ; S. C. 7 Trans. Ap. 9 ; Aiuitin V. Nein Jtrsey Steainhocit Co. 43 N. Y. 75.) Upon exceptions to a referee's findings of fact, the supreme court is to inquire whether the finding is against the weight of evidence ; but upon appeal to the court of appeals, such exception only raises the question whether there was any evidence to sustain it. (McCabe v. Bray- ton. 38 N. Y. 196 ; S. C. 6 Trans Ap. 227.) Upon appeal from a judgment in an equitable action tried before a referee, the court of appeals can only review questions of law raised in the court below, upon rulings to which proper exceptions were taken. (Shaw v. Smith, 5 Ab.. N. S. 129; S. C. 3 Keyes, 306 ; 1 Trans. Ap. 238.) The question as to the validity of the contract on which the suit is brought can- not be raised on appeal, if not raised in the court below, either by the answer, or by motion, or presented by some finding or exception. (Cummins v. Barkalow, 4 Keyes, 514.) An objection to the right of the plaintiff to maintain his action, which, if raised on the trial, was capable of berng obviated, by the introduction of new or additional evidence, cannot be raised for the first time on appeal. But an objection to the unconstitutionality of an act of the legislature is one which could not have been obviated by any action of the plaintiff, and therefore need not be first raised on the trial. (Brookman v. Hamill, 54 Barb. 209 ; S. C. aff'd, 43 N. Y. 554.) Where a cause has been tried on the assumption, by both parties, that a particular 754 Ch ap. 1. J PRO CEEDiyas s usse q uext to the decree. 395 allowed to surprise or mislead his adversary. Therefore if.counsel raise a point for the first time upon the hearing, which might have been obviated had it been made in the court below, he will not be allowed to do so. But where a cause has been defended in the court below, and upon appeal a point is made which could not be obviated in the court below by proof or amendment, the appellate court ought not to refuse cognizance of \t.{x) The court will decide on those parts only of the decree of the court below which are complained of in the petition or notice of appeal.(?/) And the appellant canuot allege error in the decree as against another party who has not appealed.(«) Neither can parties avail themselves, upon appeal, of any irregularity in the court below, which they have consented to, or waived.(a) Appeals may emiracc more than one order, £c.] Where two distinct orders are made in the same cause, they may be both included in one notice of appeal and in the same appeal bond ; provided the penalty of the bond is sufficiently large, and the condition of the bond is broad enough to secure the payment of the whole amount required to be secured on both appeals.(^i) In the case of Bouchier v. Dillon,{c) after a petition of appeal had been presented complaining only of one order of the court below, leave was given by the house of lords to extend the appeal to other orders. Gross appeals.] Sometimes, where there is an appeal against a part of a decree, the respondent, or some other party, may feel himself aggrieved by another part. In such cases the proper course is to bring a cross appeal. Where that is done, the two appeals may be brought (x) Beekman v. Fi'ost, 18 John. 558. (J/) Sands v. Codwise, 5 John. 531. Kelsey v. Western, 2 X. T. 500. Mapes v. Coffin, 5 Paige, 296. (a) Oldham v. Eowan, 4 Bibb, 544. (re) Wickliffe v. Clar, 1 Dana, 589. (6) Tvlei- V. Simmons, 6 Paipe, 127. (c) SBligh, (New Scries,) 688. fact existed, neither will be allowed to assert its non-existence, on appeal. (Shaw V. Davis, 55 Barb. 389.) Thus, the appellate court will assume that an execution, on which the defense was based, was formal and valid, if treated as being so and not objected to as informal or invalid, on the trial below, althotigh it does not appear in the case. (Id. ) On appeal, all such facts as might legally be found to be established by the evidence, and are necessary to the support of the judgment, are to be assumed to have been found by the court in confonnity with the judgment directed, when nothing can be found in its conclusions in conflict with that assumption. {Sheridan V. Audreys, 3 Lans. 129.) Where the judge charged that the defendants were liable, even if the jury should find the facts precisely as the defendants' witnesses testified, and thereupon directed a verdict for the plaintiffs, to which the defendants excepted ; it was Tield, that the defendants might, on appeal, raise the question of the correctness of the charge and direction, although they had not requested the court to submit any question of fact. (Low v. Hall, 47 N. T. 104.) 755 397 FROCEEDIXaS SLrBSEQUEXT TO THE DECSEE. [Book II. Oil to bg heard at the same time, and one" order be made in both,(rf) As the appellant, in the original appeal, seeks a reversal or variation iif the decree or order, on the ground of its having taken from him too much, or given him too little, so the respondent, by the cross appeal, uims at a reversal or variation of such decree or order, on the ground of its having given the appellant too much or too little to the respon- dent.(e) The following case is given by Mr. Urquhart,(/) as one proper for a cross appeal. A. files a bill to recover an estate, insisting that he is entitled to it under a conveyance made by E., and also under another deed made by 0. The defendant avers that he is in .possession, under a title derived from D. the admitted original owner, from whom all make title, and that neither B. nor C. had power to make the con- veyances under which the complainant claims. The court below decrees that the complainant is entitled under the deed of B. who was not restrained from aliening, but not under the deed of 0. who was so restrained. The defendant appeals, complaining of the decree for declaring that the complainant is entitled under the deed of B. On this appeal nothing can be argued but the validity of the claim under tlie deed of B. If the complainant wishes to bring his right to the estate before the court, under the deed of C. he must file a cross appeal. In fact, unless the respondent is satisfied with the decree appealed from, he should, in all cases, bring a cross appeal. Where the appel- lant does not succeed in reversing any part of the decree, and the respondent has not brought a cross appeal, the appellate court cannot reverse or modify the decree in a part thereof which is erroneous as to such respondents. (g) There are cases where the original appeal has been dismissed and relief granted under the cross appeal. And sometimes both appellants have succeeded in part, in their respective appeals.(7<) Another proper case for a cross appeal is where one party appeals from the substance of the decree, and the other appeals from the decree for giving or refusing costs. Amendment of lill iij adding parties.'] The appellate court will give the complainant leave to amend by adding parties, in the same manner as upon an original hearing; and will order the hearing of the appeal to stand over for that purpose. And it lias gone to the extent of allow- ing the complainant to add the attorney general as a.party, either by (d) Blaokbtirn v. Jepson, 2 Ves. & B. 359. Hawley v. J.imes, 16 Wend. 61, 85. In this case tbere were eight several appeals, and only one decree in the appellate court. (c^ Palmer's Prao. 33. (/) Urqnhart. 37. (o) Mapes v. Coffin, S Paige, 296. Clowes v. Dickenson, 8 Cowen, 330. (ft) Palmer's Prac. 33. 756 Chap. 1.] PROCEEDINGS SUBSEQUENT TO THE DECREE. SQg converting the bill into an information and bill, or into an informa- tion only.('i) Indeed, if the court perceives that it cannot make the proper decree for want of the necessary parties, the objection is never too late. It may not only be made at the hearing, by a party, but the court may make it of its own accord, at or after the hearing.(^) Order or decree by consent.^ If the order or decree appealed from purport, on its face, to have been taken by consent of the party appeal- ing, it will be deemed by the court above, on appeal, to have been so taken ; and they will not hear evidence upon the question whether it was so taken. (7) If it was, in fact, not taken by consent, the party should have applied to the court below, to have the mistake in the entry corrected. (?w) Waiver of appeal] (16) If a party proceeds to carry into effect an order from which he has appealed, it will be considered as a waiver of (i) President ol' St. Marv Magdalen v. Sibthorp, 1 Enss. 154. (A) 2 Hoflf. Pr. 38. U) Atkinson v. Manks, 1 Cowen, 691. (m) Id. ib. (16) A positive waiver of the right to appeal, by a stipulation between the parties, before judgment in the subordinate court, will be enforced in the appellate court, and the appeal dismissed, (Taicnsendv. Masterson, etc.. Stone Dressing Co. 15 N. Y. 587.) But iin appeal by the plaintiffs from a judgment in their favor is not waived by their acceptance from the defendants of the amount of the verdict in favor of the plaintiffs, with costs. {Benkard v. Bahcock, 27 How. 391 ; S. C. 17 Ab. 421 ; 2 Rob, 175.) If the defendant voluntarily tenders the amount of the verdict in favor •of the plaintiff, with costs, the acceptance of such amount does not preclude the plaintiff from appealing, (Id. ; Higbie v. Westlake, 14 N. Y, 281 ; Clours v. Bick- ivison, 8 Cowen, 328,) In Bennett v. Van Syckel, (18 N, Y, 481,) where a party took proceedings on one part of a judgment in his favor, and then appealed from the residue, it was held, that all the provisions of the judgment being connected and dependent, the appellant must be deemed to have waived his right to appeal. In Lewis v. Irving Fire Ins. Co. (15 Ab. 140, n.) where an order was gi-anted to one party, upon his paying costs, it was held that the other, by accepting such costs, waived his right to appeal from the order. (See Radical/ v, Cfraham, 4 Ab. 468.) A sheriff does not waive his right to appeal from a judgment rendered against him for an escape, although he has, in the meantime, prosecuted to judgment and execu- .tion the limit bond, and although he has collected a portion of the judgment against the sureties. {Lawrence v, Campbell, 32 N. Y, 455,) "Where a party, on the denial of a motion, avails himself of the privilege to renew, he cannot appeal from the order denying the motion, in the first instance. {Noble v. Prescott, 4 E. D. Smith, 139,) And the renewal of such motion after appeal, precludes the hearing of the appeal while the renewed motion is pending. {Peel v, JEllioU, 16 How, Pr. 483.) A general appearance in the appellate court by the respondent, on an appeal from a justice's judgment, and noticing such appeal for argument, are positive acts of submission to that tribunal, and amount to a waiver of his right to have^the appeal dismissed because not taken in time. {Pearson v. Lovejoy, 53 Barb. 407 ; S. C. 35 How. 193.) Where an order was granted, dismissing an appeal, on condition that the respon- dent should consent to a modification of the decree appealed from and pay costs of the motion, and he consented and paid costs, which were accepted by the appellant ; it was held that the latter had thereby waived his right to appeal from the order of dismissal. {Marvin v. Marvin, 11 Ab.. N. S, 97,) So, collecting by execution, 757 398 PROCEEDIXGS SUBSEQUENT TO TUB DECREE. [Book II. the appeal; as the two proceedings are inconsistent with each other.(») So where, upon the dismissal of a bill by the court below, leave is given to the complainant to amend, which he proceeds to do, it will be con- sidered a waiver of his right to appeal from the order dismissing his bin.{o); Dismissing appeal] If a party who has appealed from an order, is proceeding to carry it into effect, notwithstanding the appeal, the respondent may apply to the appellate court to dismiss the appeal, on the ground that the proceeding under the order, by the appellant, is a waiver of the appeal, or to compel him to elect in which court he will proceed.(^) (17) And where a party drew up and entered an order not warranted by the decision of the court, and appealed therefrom, and the court afterwards set aside the order as improperly entered, the appellate court, upon the application of the respondent, ordered the appeal to be dismissed.(5') If au appealis dismissed, it is generally dismissed with costs.(r) Where the appeal bond is not duly acknowledged according to the provisions of the 172d rule, the appeal is irregular, and may be dis- missed for that cause.{s) (18) (n) Vail V. Kemseii, 7 Paijro, 206. Lansing v. Caswell, 4 id. 519. (o) McElwain v. Willis, U Wenil. 548. See, also, Brooiis v. Hunt, 17 John. 484. ip) Vail T. Ecniscn, 7 Paifre, "206. (9) Hunt V Wallis, 6 Paige, 371. (r) 3 Dan. 127. (s) Eidabock v. "Levy, 8 Paige, 197. the amount of a judgment, is a waiver of an appeal prosecuted to procure a reversal of the judgment for alleged error. (Knapp v. Brown, id. 118.) An appearance by the appellant at general term, and resisting the reversal of the order of the special term sustaining his demurrer to the answer of the respondent, is not a waiver of the appellant's appeal from the order of the special term setting aside the plaintiff's judgment. Sustaining the demurrer is a proceeding having no con- nection with, or dependence upon the order setting aside the judgment. {Pistor v. Brimdutt, 42 How. 5 ; S. C. as Pi.itor v. Hatfield, 46 N. Y. 249.) (17) An appellant can dismiss his own appeal, on payment of costs, at pleasure. ( Warren v. Eddy, 13 Ah. 28 ; S. C. 32 Barb. 664.) A dismissal or abandonment of the appeal, if voluntary, does not preclude the party from renewing the appeal within the time limited by law. (Crafts v. Ives, court of appeals, cited Wait's Code. p. 644.) So, if an appeal becomes a nullity by the omission of the sureties in the undertaljing to justify, the appellant may bring a new appeal. (Kelsey v. Camphell, 14 Ab. 368; S. C. 38 Barb. 238; Langley v. Warner, 1 N. Y. 606 ; S. C. 3 How. Pr. 363 ; 1 Code Rep. 111.) But the non-pay- ment of costs of dismissing an appeal is ground for staying the proceedings on a second appeal in the same cause, until such costs are paid. (Dressei- v. Brooks, 5 How. Pr. 75.) If the appellant offers to dismiss his appeal on reasonable conditions, he is entitled to an order to that effect. (Porter v. Jones, 7 How. Pr. 192 -, Burnett f. HarTtTiess, 4 id. 158 ; S. C. 2 Code Rep. 100.) (18) Appeal, how made ; exceptions or case ; notice of ; pakties, how desig- nated ; title of action ; papers, how entitled ; transmission of papers to appel- late COURT ; judgment. 1. Exceptions or case.'\ The Code, (§ 268.) provides that for the purposes of an appeal, either party may except to a decision on u, matter of law, arising upon a 758 Chap. 1.] PROCEEDINGS SUBSEQUEKT TO THE DECREE. 399 trial by the court, within ten days after notice in writing, of the judgment, in tlie same manner and with the same effect as upon a trial by jui-y, (see § 265,) &c. And when a party desires a review, upon the evidence, either of the (niestioiis of fact or law, he may, at any time within ten days, or such further time as may be prescribed by the rules of the court, make a case or exceptions, &c. For the purpose of a review in the court of appeals, the question of law must be distinctly raised ; and if it arises from the evidence, the fact which the evidence proves, or tends to prov^ must be distinctly found. The party ap]iealing must make his case and have it settled, with such a statement of f.icts as will show, neces- sarily, that the law is in his favor. If he does not do so, every intendment, not absolutely unreasonable in itself, will be against him. (Manlei/ v. Ins. Co. of North America, 1 Lans. 20.) In a case tried before a referee, the party appealing prepares a case, and inserts the findings of facts by the referee, and if he thinks the issues are not all passed upon, he may propose the finding of additional facts ; and the other party may do the same in proposing amendments. (Id.) 2. Notice of.] An appeal must be made by the service of a notice in writing on the adverse party, and on the clerk with whom the .judgment or order appealed from is entered, stating the appeal from the same, or some specified part thereof. (Code, § 327.) When a party shall give, in good faith, notice of appeal from a judgment or order, and shall omit, through mistake, to do any other act necessary to perfect the appeal, or to stay proceedings, the court may permit an amendment, on such terms as may be just. (Id.) A notice of appeal from a judgment at the circuit, or special term, which states that the appeal is taken to the " supreme court," instead of, to the " general term of the supreme court," as required by chapter 270 of the Laws of 1854, is sufficient ; especially if the undertaking recites that the defendant has appealed to the '■' supreme court at general term." (People ex rel. Bo'ilston v. Tarhell, 17 How. Pr. 120.) A notice which merely states that the defendants appeal " from the judgment entered in this action to the general term of this court," is a sufficient compliance with the requirement of § 327. ( Wilson v. Alien, 3 How, Pr. 369.) It is not necessary that the rfotice should specify the grounds upon which the appeal is brought. Ii is enough if it states what part of the judgment it is intended to review on appeal. (Id. ; Van Sant. Eq. Pr. 659.) If the whole judgment or order is appealed from, and the party appealing intends to review only a part of it, he should specify, accurately, the part or portion appealed from. (1 Monell Pr. 739.) The notice must be in writing, and must contain correctly the names of the parties, and should describe the judgment accurately. (Van Sant. Eq. Pr. 659.) A copy of the case and exceptions, served upon the adverse party, is equivalent to a formal notice of .appeal. {Tmkson v. Fcms'tt, 33 Barb. 645 ; S. C. 12 Ab. 281 ; 21 How. Pr. 279 ; Slie7-man v. Wells, 14 id. 522.) Although the language of the Code is, that the notice must be served on the adverse partif, yet, if he has an attorney, in the action, the notice must be served upon such attorney, and not uiion the party. (Crittev den. v. Adnms, 1 Code Rep.. N. S. 51 : S. C. 5 How. Pr. 310 ; Trhv^ v. 'DeBoiv. 5 How. Pr. 114 ; S. C. 3 Code Rep. 163.) The " adverse party," within the intent of the statute, is the party whose interest in the subject of the appeal is in conflict with the reversal or modification sought (Cotes v. Carroll. 28 How. 436.) In an action brought by executors, for the con- struction of a will, where several heirs and devisees are made defendants, and the decree of the court allows the claims of some of the defendants, but not those of others, the latter defendants, in bringing their appeal from such judgment, shou'd serve their notice of appeal and other papers, not only upon the plaintitfs, but upon the defendants in whose favor the judgment was pronounced, as those defendants are " adverse " parties, within the meaning of the Code. (Id.) Every party to an action, whether as plaintiff or defendant, who has an interest in sustaining the judgment or determination apjiealed from is an " ndversc " party. within the meaning of section 327, and as such, is entitled to notice of appeal. (Hiscork v. Phelps, 2 Lans. 106.) Unless notice of appeal is served on the clerk, within the time specified in §§ 331 and 332, the right to appeal is lost. (Morris v. iln-'rtn"e, 26 How. 247 ; S. C. 17 Ab. 86; 31 How. 639; Van. Cliefy. Mers'Teait . 8 Ah.. N. S. 193.) The omission to serve the notice within the time limited cannot be supplied, or rectified. (Id. ; E'lsworth V. Fultov, 24 How. 20 ; Peovle er rel. aammill v. Eldridge, 7 How Pr. 108; Tripp Y. DeBow, 5 id. 114; S. C. 3 Code Rep. 163.) In Tnppv. DeBow, 759 399 PROCEEDINGS SUBSEQUENT TO THE DECREE. [Book II. supra, where such service was made upon the party only, and not on the attorney of record, the party not appearing, so as to give the court jurisdiction, it was held that the appeal was a nullity. And where the notice of appeal from a justice's court was served on the justice, but not on the party, within the time limited for such service, it was held, that the appeal was not perfected, so as to give the appellate court jurisdiction. (People ex rd. Grcimmill v. Eldridge, 7 How. Pr. ]08.) The service of notice is a jurisdictional question, which can be taken advantage of at any time before there is a positive act of submission to the tribunal whose jurisdiction is called in question. (Id.) On appeal from a justice's court to a court of record, the statute requirement of service of notice of appeal on the respondent is not merely directory; it is imperative. A verbal notice amounts to nothing. (Id.) The service of notice of appeal may be either personal or by mail. It may be upon the attorney, by mail, on the last day for bringing the appeal, though it should fail to reach him until after the time has expired. (Van Sant. Eq. Pr. 659.) Such a service upon the clerk of the court, however, has been held irregular, though the court has power under the last clause of § 327, and will allow an amendment, in such a case, so as to give the party the benefit of his appeal. (Id. ; Crittenden v. Adains, 1 Code Rep., N. S. 51 ; S. C. 5 How. Pr. 310; 1 Monell Pr. 2d ed. 740.) That clause authorizes an amendment in all cases of an appeal from an order or judgment, when there are particular defects in the appeal, which do not destroy its substantial character. (Pri) v. Bennett, 16 How. Pr. 385. See, also, ii'dls v. Thursbt/, 11 How. Pr. 129 ; Sternhaus v. Seh^nidt, 5 Ab. 66.) But when there is a failure to give notice of appeal in pood faith, there can be no amendment. (The People v. Eld- ridge, 7 How. Pr. 168.) Nor will an amendment be allowed, of a notice of appeal from a judgment, so as to make it also a notice of appeal from an intermediate order, after the time for appealing from such order has expired. This would be indirectly extending the time to appeal from such order, which it is held the court has no power to do. (Yan Sant. Eq. Pr. 660 ; Frt/ v. Bennett, 16 How. Pr. 385 ) A notice of appeal from an order, when actually given, in due season, if there be particular defects therein which do not destroy its substantial character, may be amended ; and so of an appeal from a judgment. (Fry v. Bennett, 2 Bosw. 684 ; S. C. 16 How. Pr. 385 ; aff'd, 26 id. 599.) But where notice of appeal from a judgment has been given, in all respects perfect, and containing nothing more, the court will not allow an amendment so as to make the appeal also an appeal from an order deny- ing a motion for a new trial. (Id.) The court has not the power to amend a notice of appeal, the effect of which will be, not merely to correct a mistake, but to enlarge the time for appealing. {Bryant V. Bryant, 7 Rob. 49; S. C. 4 Ab., N. S. 138; Hamnhrev v. Chamberlain, 11 N. Y. 274 ; Fri/ v. Bennett, 2 Bosw. 684 ; S. C. 16 How. Pr. 385 ; Wait v. Van Allen, 22 N. T. 319 ; Cotes v. Carroll, 28 How. 436 ; People ex rel. Gammill v. Eldridge, 7 id. 108 ; Sherman v. Wells, 14 id. 522 ; Rowell v. McCormick, 5 id. 357 ; Enos V. Thomas, id. 361 ; Lindslev v. Almy, 1 Code Rep.. N. S. 139 ; Renouil v. Har- ris, 2 Sandf 641 ; S. C. 2 Code Rep. 71. Contra, 8eeley v. Prichnrd, 3 Duer, 669 ; S. C. 12 Leg. Obs. 245 ; Haase v. iT. F. Central R. R. Co. 14 How. Pr. 430 ; Crittenden V. Adains, 1 Code Rep., N. S. 21; S. C. 5 How. Pr. 310; Travel- v. Silvernail, 2 Code Rep. 96.) But, although the court has no power to extend the time in which a party may appeal, yet if he has appealed in due time, and given an informal notice of it, the court may allow him to amewcJ his notice, ra(t7K,' ■)3ro time. (Sherman v. Wells, 14 How. Pr. 522.) Thus if the reference to the judgment were incorrect ; or if there were a mistake in the title, in the amount mentioned, in the date, or in any other circumstance ; so that the court could be satisfied that it was intended for an appeal in the action in question, the necessary amendment would be allowed. (Id.) Where the appellant has given an undertaking, but it is insufficient to stay pro- ceedings, he may be allowed to file a further undertaking under the last clause of § ."28. (Ste^-nhavs v. Schmidt, 5 Ab. 66 ; iVeic York Central Ins. Co. v. Safford, 10 How. Pr. 344, 347.) And when it appears that an jippeal from the special to the general term is taken in good faith, and that the appeal does not, upon its merits, appear to be frivolous, although no proper undertaking may have been filed and served with the notice of appeal, the court will allow the undertaking to be filed, and a copy of it served as of the day when the notice was served, with liberty to the respondent to except to the sureties, with a stay of proceedings until the appeal be decided. (Mills v. Thursby, 11 How. Pr. 129.) But this is discretionary. (Id.) 7G0 Chap. 1. J PROCEBDIXGS SUBSEQUENT TO THE DEGREE. 399 Where an appeal has been perfected, without any stay of proceedings, the respon- dent, by serving a notice of argument after receiving notice of the appeal, will not preclude himself from enforcing the payment of the judgment. (Arnoiix v. Homams, 32 How. 382.) The appellant must serve his notice of appeal on the clerk in time ; otherwise no appeal is taken. Filing his exceptions in time is not sufficient. (Van Clief^. Mtrsn-eau, 8 Ab., N. S. 193.) The court will not allow the e.xccptions so filed to be amended, after the time for appealing has expired, so as to include a notice of appeal, and thus perfect the appeal. (Id.) Service of the notice of appeal and undertaking on the clurk, by mail, on the last dny allowed for service, is not sufficient. (Id.) A defect iu a notice of appeal, in not stating that the appeal is taken to the court at general term, or in what county clerk's office the judgment was entered, is a, mere irregularity, and does not affect the jurisdiction of the general term. And it is not sufficient cause for dismissing the appeal, if the party objecting was not misled thereby. {SUsbee v. Crillespie. 9 Ab., N. S. 139.) Such a defect is waived by the respondent's subsequently noticing the cause, and stipulating as to the time for the hearing. (Id.) 3. ParHe.1, hmo designated; title of action ; papers, Jioio entitled.] The Code, (§ 326) directs that the party appealing shall be known as the " appellant," and the adverse party as the " respondent." But the title of the action is not to be changed, in consequence of the appeal. (Id.) "Where the affidavits and notice, for a motion in the court of appeals, were entitled '■ supreme court." they were held defective, and the motion denied, on that ground. Thev should have been entitled ■■' court of ap|)eals." (CHckiiian v. CUckmaii, 1 N. Y. 511 ; S. C. 3 How, Pr. 365 ; 1 Code Rep. 98.) 4. Transmission of papers to appellate court.] Section 328 of the Code directs that if the appellant shall not, within twenty days after his appeal is perfected, cause a certified copy of the notice of appeal and of the judgment roll, or, if the appeal be from an order, or any part thereof, a certified copy of such order, and the papers upon which the order was granted, to be transmitted to the appellate court by the clerk with whom the notice of appeal is filed, the respondent may cause such certified copy to be transmitted by such clerk, to the appellate court, and recover the expenses thereof, as a disbursement on such appeal, in case the judgment or order appealed from shall be in whole or in part affirmed. It has been Jield, that in equity suits commenced prior to the Code, the return to an appeal will be sufficient if it contain a copy of the notice of appeal, and of the decree according to the former practice, without the pleadings or proofs. {Farmers' Loan and Trust Co,, v. Carroll, 2 N. Y. 566.) An appeal will not be dismissed for a formal omission to insert, in the printed case, the certificate of the clerk of the court below, verifying the papers returned by him to the appeal. (Id.) By rule 2 of the court of appeals, the appellant must cause the proper return to be made and filed with the clerk of that court, within twenty days after the appeal is perfected. If he fails to do so, the respondent may. by notice in writing, require the return to be filed within ten days after service of the notice. If the return be not so filed, the appellant will be deemed to have waived the appeal, and the appeal may be dismissed. A default taken under this rule, for not making the return within twenty days after the appeal was perfected, or, under rule 7, for default in not serving printed copies of the case, may be relieved against upon terms, when it appears that the appeal was brought in good faith ; unless the respondent can show some delay or inconvenience arising from such default. ( Waterman v. Whitney, 7 How. Pr. 407.) 5. Judrjmeni on appeal.] Section 330 of the Code directs that upon an appeal from a judgment or order, the appellate court may reverse, affirm or modify the judg- ment or order appealed from in the respect mentioned in the notice of appeal, and as to all or any of the parties ; and may, if necessary or proper, order a new trial. AThen the judgment is reversed or modified, the appellate court may make complete restitution of all property and rights lost by the erroneous judgment. Section 366 of the Code directs that on appeal from a justice's court, to either of the other coiirts specified in § 352, the appellate court shall give judgment accord- ing to the justice of the case, without regard to technical errors and defects which do not affect the merits. And the court may affirm or reverse the judgment of the court below, in whole or in part, and as to all or any of the parties, and for errors of law or fact. It is a general rule that upon an appeal from a judgment or order, the appellate 761 399 PROCEEDINGS SUBSEQUENT TO TBE DECREE. [Book II. court is to make such a judgment as the court below ought to have made, when the judgment or order appealed from was entered. (Bank of Oi-ange v. Fonk, 7 Paige. 87.) By § 330 of the Code, the court is clothed with the power, not only to render a simple judgment of aflSrmance or of reversal, ordering, if necessary or proper, a new trial, but also to modify the judgment or order appealed from, and as to all or any of the parties. It may be reversed as to one defendant who appeals, without affect- ing the judgment as to another defendant who does not appeal, in cases where a several judgment below would be proper. (Van Sant. Eq. Pr. 666 ; Geraud v. Slagg, 10 How. Pr. 369; S. C. 4 E. D. Smith, 27.) Where a judgment is not entire, but is for different things sepai-able in their nature, and separated on the record, the supreme court, under its common law powers, may reverse in part and aflBrm in part. (Storij v. The iV. Y. and Harlem R. Ji. Co. 6 N. Y. 85, 89 ; TUlou v. Kingston Mu. Ins. Co. 5 id. 405.) But it cannot be affirmed as to a part of the amount recovered, and reversed as to the residue, when a new trial is ordered as to the part which is reversed. (Id.) On appeal from a decision made at a special term, the supreme court at general term has authority, under § 366 of the Code, to modify the judgment, according to the justice of the case, without regard to technical errors. (Broionell v. Winnie, 29 N. Y. 400; S. C. 29 How. Pr. 193.) The court of appeals also possesses the same power. (Id.) Where two or three independent causes of action are prosecuted in a justice's court, and the judgment is right as to one, and erroneous as to the others, which fact distinctly and plainly appears on appeal, it is the right and duty of the county court to reverse as to the erroneous and affirm as to the legal part of the judgment. (StaatSY. The Hudson River R. R. Co. 39 Barb. 298; S. C. 23 How. Pr. 463.) The county court, on such an appeal, has authority, under § 366 of the Code, to modify the judgment, according to the justice of the case. (Brownell V. M'innie, supra.) Where there is a clear mistake as to the amount of damages for which a judgment is rendered, an appellate court, having power to affirm or reverse in whole or in part, (Code, § 366,) may reverse as to the part inserted in the judgment by mistake, and affirm as to the residue. (Fields v. Moul, 15 Ah. 6.) Where a judgment appealed from consists of distinct matters, and those matters are so presented that a final judgment may be rendered by the appellate court upon each, the judgment may be affirmed as to part, and reversed as to the residue. (Id.) On appeal to the court of appeals, that court may reverse, affirm or modify the judgment or order appealed from, in whole or in part, and as to all or any of the parties. (Code, § 12.) It can modify the judgment appealed from by reversing it as to the sum assessed as damages, and affirming it as to the interest allowed as damages, and may direct that the judgment be so amended as to giant to the relator a ^vrit of mandamus. ( The People ex rel. Aspinwall v. The Supervises of Rich- mond, 28 N. Y. 112.) Where a jury has fixed the amount of damages at a specified sum, it is competent for the general term of the supreme court, on appeal, if, in its judgment, such dam- ages are excessive, to order a new trial, or, in its discretion, to affirm, in case the appellant remits the amount adjudged excessive. {Sears v. Conover, 33 How. Pr. 324, 326.) It has long been the settled practice of the court, on a motion for a new trial, to refuse to set aside the verdict, if the parties would consent to deduct any amount deemed excessive. (Id.) Such a proceeding was recognized and approved by the court of appeals in Chouteau v. Suydam, (21 N. Y. 179.) See, also. Boyd V. Foot, (5 Bosw. 110.) If, on appeal to the general term, a judgment of the special term is affirmed, a new judgment should not be entered. A simple judgment of affirmance, with the award of costs, (if any,) should be attached to the original judgment roll. {Eno v. Crooke, 6 How. Pr. 462 ; approved in DeAgreda v. Mantel, 1 Ah. 130.) It is im- proper to enter up two judgments in the same court, for the same demand. (Id.) But it seems that the old practice of entering a new judgment npon an ajjpeal will still apply, where the appeal is brought from a judgment of an inferior court to the supreme court. A judgment of affirmance should not embrace any sum secured by the judgment appealed from. (Halsey v. Flint, 15 Ab. 367.) In general, where a judgment is reversed, on appeal, a new trial should be awarded. (Id. And see Dutch Reformed Church of Canajoharie v. Wood, 8 Barb. 42 ; Meyer v. City of Louisville. 26 Barb. 609 ; S. C. 7 Ab. 6.) But when the appellate court sees that no possible proof applicable to the issues can entitle the party to a recovery, it is not necessary, or 763 Chap. 1.] PROCEEDINGS SUBSEQUENT rO THE DECREE. 399 even proper, that a new trial should be awarded. {Edmonston v. McLoud, 16 N. y. 5io ; S. C. 19 Barb. 356 ; approved in Crriffin. v. Marquardt, 17 N. Y. 28.) Ou reversing a judgment, the ajipellate court has no power to order a re-trial, in whole or in part, upon evidence given ou the former trial. (Blssell v. Hamlin, 13 Ab. 22.) Upon appeal to the supreme court, at general term, upon a case, from a judgment at special term upon the validity of a transfer of personal property, the appellate court may reverse or affirm, according to the conclusion at wliich it may arrive from the whole evidence upon the question of fraud ; and its decision is not reviewable by the court of appeals. (Oi-iffin v. Marquardt, 17 N. T. 28.) Where, however, the judgment at special term is reversed for error in law, a new trial should be awarded, unless it be entirely plain, from the plendings, or the very nature of the controversy, that the party against whom the judgment of reversal is pronounced, cannot, upon any fresh evidence, prevail in the suit. (Id.) The improper refusal of a new trial, in such a case, is error, reviewable in the court of appeals. The question does not rest merely in the discretion of the supreme court. (Id.) When there are several defendants, and the judgment appealed from is in their favor, it may be affirmed as to some of the defendants, and reversed and a new trial ordered as to others, when it would have been proper to render separate judgments in the inferior court. (Oemud v. Stagg, 10 How. Pr. 369 ; S. C. 4 E. D. Smith, 27; sub nom. U-lraud v. Utagg ; Montgomfni County Bank v. Albany City Bank, 7 N. T. 459 ; Campbell v. Perkins, 6 N. T. 86 n.) Where a judgment for the plaintiff, in the marine or justice's court, is reversed in the court of common pleas of New York, without an award of final judgment for the defendant, upon the merits, such reversal is not conclusive as to the rights of the parties. {Ellert v. Kelly, 10 How. Pr 392 ; S. C. 4 E. D. Smith. 12.) In such a case, the costs incurred by the defendant in the inferior court cannot be allowed him and embraced in the judgment of reversal. Otherwise, perhaps, if the judgment of reversal had been final. (Id.) A judgment rendered at a general term, on appeal from a judgment of the special term, which merelj' affirms the latter, and does not award a new judgment for the whole amount recovered, but only for the costs of the appeal, is a judgment for such costs only ; and a satisfaction of it only discharges such costs, and neither operates as nor warrants a discharge of the judgment appealed from, or of a prior judgment, which was allowed to stand as security. {Beers v. Hendruksoii , 6 Rob. 53.) A mere order of the general term, aiiirming the judgment appealed from, (on demurrer.) except that the appellant have leave to answer the complaint, is not sufficient to authorize a recovery upon the undertaking. (^Poppenhusen v. Seeley, 41 Barb. 450 ; S. C. 3 Keyes, 150 ; 81 How. 639.) Judgments should not be reversed to enable a party to recover, when, under the evidence, he could recover only nominal damages. {Hugan v. Cregan, 6 Rob. 138.) The verdict of a jury upon questions of fact properly submitted to them, on which there is conflicting evidence, should not be disturbed on appeal. (Bishop v. Jack- sun, 6 Rob. 287.) Although section 122 of the Code authorizes the court to determine any contro- versy between the parties before it, yet, after an appeal from the judgment in an action against several defendants, where each, in his answer, merely asks that the complaint be dismissed, as against him, and neither demands any relief as against the others, it is too late to ask for such relief. (Cfarrei-i v. Jarms, 54 Barb. 179.) Mestituiion. — The language of section 330. in regard to restitution, is not impera- tive, and leaves much to the discretion of the court. (Costa- v. Peters, 7 Rob. 886 ; S. C. 4 Ah., N. S. 53 ; Estus v. Baldtcin. 9 How. Pr. 80.) It is irregular to permit a judgment or order of restitution to be entered where it has not been directed in the remittitur, without notice to the party to be affected by the order. ( Young v. Brush, 18 Ab. 171 ; S. C. 28 N. Y. 667 ; 41 N. Y. 620.) Restitution is to be directed where property or rights have been lost by an erroneous judgment. It will not be ordered unless it is clear that the party to whom the money has been paid holds it without right. (Id.) In case of an attachment issued under sections 227, &c., of the Code, and also in case of a judgment recovered in such attachment suit, where it appears that the judgment has been executed and paid, notwithstanding the pendency of an appeal, the appellate court, under section 330, has power to order, on reversal of the judg- ment appealed from, a restitution to the appellant of the moneys so collected, not- withstanding such reversal is accompanied by an order granting a new trial, and 7G3 899 PROCEEDINGS SUBSEQUENT TO TBE DECREE- [Book 11. notwithstanding the attachment is so pending. (Britton v. Phillips, 34 How. Pr. 111.) The restitution in such a case will be effected by ordering the moneys to bo deposited in court, to abide the result of the new trial, and subject to the lien of the att.ichment. (Id.) The restitution to which a party is entitled, upon the reversal of a judgment, is nut restitution of everything he has iQSt thereby ; he recovers only what is still in possession of his adversary. The rights of third parties must be respected. (Lovett V. Crerman Reformed Church. 12 Barb. B7.) Where the rights of third parties have intervened, who have been misled by the appearance of things, which has been the result of an omission to procure a stay, the court ought not to permit them to be prejudiced by an order for restitution, (Per Robertson, J., in Coster v. Peters, 7 Rob. 386; S.C.4 Ab., N. S. 53.) When a judgment has been paid, before appeal brought, but is not satisfied of record, the appellate court, on reversal, cannot order a restitution of the amount paid, '(Sheridan v. Mawi, 5 How. Pr. 201 ; S. C. 3 Code Rep. 213.) On appeal to the supreme court, where judgments of a county court and justice are both reversed, complete restitution cannot be made to the appellant short of pay- ing him his costs of defending the action before the justice, and of prosecuting the appeal before the count}' court, together with costs in the supreme coiirt, {Estus v. BaldiiAn, 9 How. Pr. 80 ; approved in Jacks v, Dan-in, 1 Ab, 232, See, also, Whitbeck v. Patterson, 22 Barb. 83.) The power to order restitution of all property and rights lost by an erroneous judg- ment is cumulative, and does not take away the c«ramon law rights of a successful appellant, who has paid over money upon the erroneous judgment. (Lott v, Sicezey, 29 Barb. 87.) Entering and docketinci. — Judgment on appeal must be entered and docketed with the clerk in whose office the judgment roll is fil^d. "When the appeal is heard in a county other than that where the judgment roll is filed, or is not from a judg- ment of a county court, the judgment upon the appeal must be certified to the clerk with whom the roll is filed, to be there entered and docketed. (Code. § 847.) The Code, (§ 311,) also provides that " the clerk shall insert, in the entry of judg- ment, on the application of the prevailing party, upon two days' notice to the other, the sum of the charges for costs, as above provided, and the necessary disbursements and fees of officers allowed by law, including the compensation of the referees and the expense of printing the papers upon any appeal." Under these provisions it has been held that in all cases of appeal from the circuit court, the judgment on the appeal should be certified to the clerk with whom the roll is filed, to be there entered and docketed. (Andrews v, Durant, 6 How. Pr. 191.) Thus, where the defendants entered judgment of nonsuit, and filed the roll in Ulster county, where the venue was laid, and on appeal to the general term at Albany, judgment was affirmed, and the defendants entered judgment and filed another roll in Albany county, it was held that the latter judgment was irregular ; that it was the clerk of Ulster and not the clerk of Albany who had the power to adjust the costs, and file the roll and perfect judgment. (Id.) If the party appellant or respondent dies, after appeal perfected but before judg- ment, the judgment mav be entered as of a day anterior to his death. (Beach v, Qregorn, 2 Ab. 203 ; S. C. aff'd 1 Hilt. 201 ; 3 Ab. 78 ; D'A.iredn v. Mantel, 1 Ab. 130 ; HolmeH v. Honie. 8 How. Pr, 383 : MiUer v. Gunrt, 7 id. 159 ; Boc/ers v. Pat- erson, 4 Paige, 409 ; Vroom v. Ditmas, 5 id. 528.) If a party dies after the argument of an appeal, but before the decision and judgment is entered against him nunc pro tunc, as of a day before his death, the prevailing party may proceed to collect his judgment, and the representatives of the deceased party must, at their peril, cause themselves to be made parties, or the judgment may be enforced against them. (Id.) An order of affirmance, hy default, founded upon a notice of argument addressed to and served upon the attorney of a defendant, .nfter the death of the latter, ana' after the attorney for the appellant has been notified of his death, is irregular, ( War ren v, Eddy, 32 Barb, 664 ; S. C, 13 Ab. 28.) 764 Chap. 1.] PROCEEDTNGS SUBSEQUEyT TO THE DECREE. 309 SECTION VI. APPEAL TO THE CHANCELLOR FROM A VICE CHAK0ELL0R.(19) Within what time to be Irought.'] Any party complaining of any interlocutory or other order, preTioiis to a final decree made by any (19) Appeal to the general term from judgments entered dpon a report of referees, or the direction of a single judge. In the supreme court, the superior court of the city of New Tork, and the court of common pleas for the city and county of New York, an appeal upon the law may be taken to the general term, from a judgment entered upon the report of referees, or the direction of a single judge of the same court, in all cases, and upon the fact when the trial is by the court or referees. (Code, § 348.) Such an appeal, however, does not stay the proceedings, unless security be given as upon an appeal to the court of appeals, and such security be renewed as in cases required by § 835. on motion to the court at special term, or unless the court or a judge thereof, so order ; which order may be made upon such terms, as to security or otherwise, as may be just ; such security not to exceed the amount required ou an appeal to the court of appeals. (Id.) An appeal will not lie in the first instance, to the general term, upon a case con- taining questions of fact alone, In such a case, application must first be made at special term. {Collins v. Albany & Schenectadi/ B. iJ. Co. 5 How. Pr. 435 ; LolacTi V. HotchMss, 17 Ab. 88.) A decision upon questions of fact, found by a judge at special term, may be reversed by the supreme court, on appeal ; but if the court affirms the decision of such questions, the court of appeals will regard that deter- mination of the questions of fact as final, and affirm the judgment. ( Waters v. Green, 3 Keyes. 885.) The "judgment" from which an appeal may be taken to the gener.al term, means the same thing as a judgment from which an appeal may be taken to the court of appeals. (Laurevce v. The Formers' Loan and Trust Co. 15 How. Pr. 57 ; S. C. & Duer. 618.) There can be an appeal only from a filial judgment. ( J'7«e Feojjle exrel. ' AloSpedon v. Hans. 34 Barb. 69; S. C. 21 How. Pr. 178; 12 Ab. 204.) Whenever a case is referred, at a special term, even when the order of reference settles all the essential points at issue, it is nothing but an interlocutory order ; and no final judgment can be entered until the coming in of the report. If the party appeals from the order of reference, the appeal will be dismissed. (Id.) If, on a trial, whether by the court or by a referee, a decision or report is made in favor of one party, and a reference to take an account is ordered, which is necessary in order to ascertain the amount for which judgment is to be rendered, judgment cannot be entered until the accounting has been had, and everything essential to the judgment has been ascertained. (MoMahon v. Allen, 7 Ab. 1 ; Griffin v. Cranston, 5 Bosw. 658.) If the unsuccessful party wishes to appeal, he must wait until after the accounting has been had, and a final judgment thereon entered. (Id.) A judgment is deemed entered by the direction of a single judge when it is entered by the clerk, at the circuit, upon the verdict of a jury, under § 264 of the Code ; and from such a judgment, § 348 authorizes an appeal upon the law to the general term, without any motion having been previously made at a special term, for anew trial. (Morrison v. The JY. Y. amd Neio Haven R. R. Co. 32 Barb. 568 ; Moranqe v. Morris, id. 650 ; S. C. 12 Ab. 164 ; Jackson v. Fassitt, 12 Ab. 281 ; S. C. 20 How. Pr. 279; 33 Barb. 645.) Such an appeal brings up the la%0 of the case, as presented by exceptions taken on the trial. (Id.) To present a question oi fact upon the evidence, or the right of the unsuccessful party to a new trial, for the reason that the verdict is against evidence, or upon the ground of siirprise or newly discovered evidence, or the like, a motion must be made^ at a special term, and from the order made thereon, an appeal to the general term lies. (Id.) Where, on a frivolous demurrer to the complaint, judgment is ordered for the plaintiff, and. on appeal, such order is affirmed at general term, and judgment entered,' such judgment is appealable to the general term, and must be heard there before a review can be had in the court of appeals. (Hollister Bank of Buffalo \, Vail, 15 N. T. 593.) 765 390 PROCEEDINGS SOBSEQUENT TO THE DECREE. [Book II If, without objection from either party, the general term entertains an appeal, in a case wliich is not properly appealable, the decision is binding. {D' Ivernols v. Ldctvitt, 8 Ab. 59 ; Gfriffia v. Cranston. 5 Bosw. 658.) An appenl from a judgment which has been subsequently settled by the parties and satisfaction acknowledged, will not be heard by the court merely to protect the rights of the respondent's attorney to costs. (Cock v. Palmsv, 1 Kob. 658 ; S. C. 19 Ab. 372.) No undertaking is necessary, on an appeal to the general term from a judgment rendered at a special term, or on the report of a referee, to .sustain the appeal. (Niles V. Battershall, 26 How. 93 ; S. C. 18 Ab. 161 ; Par.i;m8 v. Saydam, 4 Ab. 134; Geiitfrv. Fields, 1 Keyes, 483; Halsei/ y. Flint, 15 Ab. 367; KitcUngy. Diehl. 40 Barb. 433 ; Ten Broeck v. Hudson River R. Jt. Co. 7 How. Pr. 137.) If a stay of proceedinos is desired by the appellant, he must either obtain an order of the court, or of a judge, for that purpose ; or he must file and serve with the notice of appeal a copy of an undertaking, as required on an appeal to the court of appeals. (Id. ; Smith v. Heeriiianve, 18 How. Pr. 261 ; Staring v. Junes, 13 id. 423 ; Ariumx V. Homams, 32 id. 382.) On an appeal from a judgment, under this section, the undertaking, in order to stay proceedings, must provide for the payment of all costs, as well as the damages which maybe awarded against the defendant, on the appeal, not exceeding $250. (as now amended. $500.) If the undertaking omits to provide for the costs on .appeal . it is good so far as it goes, and the respondent is not bound to return it ; but it does not stay the proceedings. (Chemung Canal Bank v. Judson, 10 How. Pr 133 ; Hulieij v. Fdnt, 15 Ab. 367.) A stay of proceedings mav be ordered without an undertaking. (Mills v. Thursby, 11 How. Pr. 129 ; Staring'v. Jones, 13 id. 423 ; Polhamus v. Moser, 7 Rob. 443.) Where an appellant has given security on appeal to the general term, and his sure- ties have become insolvent, his failure to comply with an order directing new sureties to be given is not ground for dismissing his appeal. (Greater v. Fields, 1 Keyes, 483.) Sureties to an undertaking on appeal are not liable thereon, when the judgment on such appeal is merely interlocutory, and not final ; or where there is no judgment of affirmance. (Poppenhusen v.Seele'i, 3 Keyes, 150 ; S. C. 41 Barb. 450.) Where, on appeal to the general term, the appellant fails to serve a case, and the appeal is regularly noticed, and reached on the calendar, the respondent may, if the appellant does not appear, take a judgment of affirmance. He is not limited to a motion to dismiss the appeal or to strike it from the calendar. (Peters v. Groupe, 15 Ab. 263 ; S. C. 9 Bosw. 638. But see Warren v. Eddy, 32 Barb. 644 ; S. C. 13 Ab. 28.) A motion to dismiss an appeal should be made at the general term. (Barnum v. Seneca County Bank, 6 How. Pr- 82; S. C. 1 Code Rep., N. S. 405.) Where a party, instead of moving to dismiss an appeal, immediately on its being brought, waits until the final hearing before he raises the question, he will not be allowed costs. ( Williams v. Fitch, 15 Barb. 654.) The respondent may, it seems, notice the appeal for argument as soon as the case or exceptions are settled. (Aiiderson v. Dickie, 26 How. 199; S. C. 17 Ab. 83; 1 Rob. 700.) The court will not hear an appeal out of its order on the calendar, on the ground that it is frivolous. ( Wilder v. Lane, 34 Barb. 54 ; S. C. 12 Ab. 351.) A mere order of the general term, affirming the judgment appealed from (on demurrer,) except that the appellant have leave to answer the complaint, is not sufficient to authorize a recovery unon the undertaking. (Poppenhusen v. Seeley, 41 Barb. 450 ; S. C. 3. Keyes. 150.) Where an appeal is duly taken from a judgment at special term to the general term, by the unsuccessful party, it is a waiver of all irregularities in the judgment which might have been objected to at special term, if a motion had been made before the appeal was taken. {People v. Albany & SiLsquehaniia. R. R. Co. 39 How. 49 ; S. C. 8 Ab., N. S. 122 : 2 Lans. 459.) Section 348 of the Code directs that no action shall be commenced upon any undertaking given in pursuance of the provisions of that section until ten days after the service of notice on the adverse party of the entry of the order or judgment affirming the judgment appealed from. And in case of an appeal to the court of appeals from such order or judgment of affirmance, and security given according to law, so as to stay the issuing of execution, no action shall be commenced or recovery had upon any undertaking given in pursuance of the provisions of that section, until after the final determination of such appeal . 766 Chap. l.J PliOCEEDINOS SUBSEQUENT TO THE DECREE. 4Q0 vice chancellor, may, within fifteen days after notice of sucii order, appeal therefrom to the chaiicellor.(^) And any party complaining of any final decree made by a vice chan- cellor, may appeal therefrom to the chancellor within six months after such decree shall have been entered in the minutes of the court. And such ajDpeal may be made notwithstanding the decree may have been enrolled.(H) If a party in whose favor an interlocutory decision of a vice chan- cellor is made, wishes to limit the time for appealing, he should have the order entered, and serve a copy, or give formal notice thereof, to the adverse pai-ty, without delay; as the latter has fifteen days after the receipt of notice of such order, to appeal from the decision. (y) Parol notice, where a copy of the order has not been served, is not sufiBcient.(?y) As a party cannot have legal notice of an order until it is drawn up and perfected, the time for appealing from it does not begin to run against the party entering the order until the actual entry thereof, although the caption of the order bears date as of a previous day.(.'r) Where, however, the appellant draws and enters the order, he is deemed to have had notice of such order from the time it is actually entered by \\[ra.[y) And where the party who is entitled to draw up the order, enters it as of the time the decision of the court was pronounced, he cannot afterwards object that it was not actually entered at that time.(2!) The court has no power to extend the time for appealing; not even upon the ground of the mistake of the party, it being fixed by statute; and the lapse of time is an absolute bar to the appeal.(a) Nor can the court vacate the order, and cause it to be entered as of a more recent date, to enable a party to appeal therefrom.(5) But if a party to a suit before a vice chancellor, is misled by any mistake or neglect of the clerk, as to the time of the entry of a final decree, whereby he does not perfect his appeal until after the expiration of the time for appealing, it would be sufficient ground for an application to the vice chancellor to have the decree re-entered, so as to give him an opportunity of appealing within the time fixed by statute.(c) . («) 2 E. S. 178, S 65, (orig. } 59.1 Eldridge T. Howell, i Paige, 457. («) Id. ib. 4 Paige, 457. (») StndweU v. Palmer, 5 Paige, 57. Tyler v. Simmons, 6 id. 127. People t. Spalding, 9 id. 607. (w) Tyler v. Simmons, supra. \x) Nortli American Coal Co. t. Dyctt, 4 Paige, 273. Whitney v. Belden, id. 140. (y) III. ib. («) Whitney v. Belden, supra. (« Townsend y. Townsend, 2 Paige, 413. Barclay v. Brown, 7 id. 24B. CadwcU t. Mayor, Ac. ofAlbanv, 9 id. 572. (6) III. ib. Oadwell v. Mavor, &c. of Albany, 9 Paige, 572. (c) Barclay v. Brown, supra. 767 400 PKOCKEDIXGS Sb'BSF.QUENT rO TITK DECREE. [Book II. BuL where the time for appealing depends upon a rule of tlie appel- late court, such court, upon a sufficient excuse shown, may suspend its rule and allow an appeal, altliough such appeal was not brought within Llie time prescribed by the rule for appealing.(c?) It seems, tliat an order directing an issue, cannot be appealed from after the trial has taken place.(e) An appeal to the chancellor from a final decree of a vice chancellor as to the general costs in the cause, may be made at any time within six months from the time of entering the decree.(/) Method of appealing— notice.] (20) The statute declares that appeals to the chancellor from a vice chancellor, shall be made by serving notice thereof on the solicitor of the adverse party, and on the register, assistant register, or clerk with whom the decree or order appealed from was entered.^*/) This is done by delivering to the register, &c., a written notice stating that such decree or order, or some particular part thereof, to he specified in the notice, is appealed from.(7«) The notice required to be served on tlie solicitor of the adverse party, must be served within the time limited by the statute for appealing.(i) This notice must be served upon the solicitors of the several parties, whose interests, as to such appeal, are adverse to the appellant.(/(;) A mere constructive notice is not sufficient.(Z) The notice above mentioned, takes the place of the petition of appeal which is used in our court for the correction of errors and in the English courts. The 119th rule declares that no petition of appeal addressed to the chancellor need be presented on appeals from orders or decrees of vice chancellors ; and that no transcript need be returned ; but that the original pleadings and other papers in the cause may, by order of the chancellor, and at the expense of the party procuring such order, be transferred from one office to another as occasion may require; and that the expense of such transfer may be taxed as a necessary dis- bursement. (d) Cadwell v. Mayor, &c. of Albany, 9 Paige, 572. Smith v. Smith, 1 id. 391. (c) DeTastet v. Borflenave, Jacob, hlC. (/) Fulton Bank v. New York and Sharon Canal Co. 4 Paige, 127. (a) 2 R. S. 178, S 66, (orig. 5 60.) (A) Rule 117. (i) Eldridge y. Howell, 4 Paige, 457. (fc) Potter T. Baker, 4 Paige, 290. (I) Id. ib. (20) The Code, (§ 327,) provides that an appeal shall be made by the service of a notice in writing, on the adverse party, and on the clerk with whom the judgment or order appealed from is entered, stating the appeal from the same, or some speci- fied part thereof. When a party shall give, in good faith, notice of appeal from a judgment or order, and shall omit, through mistake, to do any other act necessary to effect the appeal, or to stay proceedings, the court may permit an amendment on such terms as may be just. 768 Chap. l.J FR0CEIW7XGS svBsrc'QVE.xr TO Tni: dechee. 4f)| Under this rule, it has been decided th.at it is not necessary to obtain an order for tlje trausCer of the papers, except where the inspection <:i' •original papers may become necessary on the hearing. And thiit wheix- a transfer of the papers becomes necessary, the party applying for if, must, by affidavit, state the particular reasons which render a remo\Ml of the papers necessary .(?;?) Bond and dfposif. Within the time limittni by statute for appealir.p-, the appellant must mahe the necessary deposit, or file the ijoud re(iuirt'd to be given as security for costs on the appeal.(/() The bond luvc spoken of is required to be in the penalty of at least S-L'.O, with sure- ties, to be approved of by such officer as the ciiancellor shall designate for that purpose, conditioned f(n- the diligent prosecution of ihe ajipeal, and for tile payment of all costs and damages that m;iy be awarded against the appellant thereon.((7) The approval of an appeal bond is an act requiring the exercise of judgment and discivtion on the part of the iipproving officer; and under the proliibitiou of the statute, (2 H. S. 20i, § G.) a. master who has acted as solicitor or counsel in the cause or matter in which the appeal is taken, or whose law partner has thus acted, cannot regnlarlv approve snch bond.(;j) If a bond is not given, the appellant must deposit the sum of ?;250 with the register, assistant register or clerk, to be applied, under the direction of _the court, for the payment of all costs and damages that may be awarded against the appellant on the appeal. (17) But a deposit is not necessary if a bond is given. (?■) The bond may be approved of by any vice chancellor or injunction master, or by the register, assistant register or clerk with whom the appeal is entered ; to be signitied by his approval endorsed theref)n. (,■;•) But if the bond is a]iproved of by the register, instead of the clerk of the vice chancellor with whom the appeal is entered, it is a mere irreg- irlarity which will be considered as waived if the adverse party deies not apply to the chancellor to dismiss the appeal within a reasonalije time after notice of such ir)vgularity.(/) The power of the court to dispense with the usual formality with respect to the approval of bonds on appeals from vice chancellors, arises from the fact that the form and manner of giving the security upon such appeals are regulated b}' a (m) K.imosv. Sanfrer, 3 Paig'O, ^to6 (?() Itiilcin. (o) 2 li. S. 605, } sn. Knle IIB. ip) Mr], .lie]] V. Clianier, 5 I'iiigc, 030. [g] 'I R. S, 60.'), { 80. (r) III. il). }81. (s) Rule 116. («) Hawley v. Bennett, 5 Paige, 104. Vol. I.—49 769 402 PROCEEDINGS SUBSEQUENT TO THE DECREE. [Book II. rule of the court, and not by statute.(M) It is otherwise as to appeals to the court of errors, which are regulated by statute.(v) The bond must be executed by at least two responsible sureties who are residents of the state, and householders.(z«) They should justify in double the amount of the penalty of the bond. And the officer who approves the bond should, in his certificate, state that he approves of the sufficiency of the sureties as well as of the form of the bond.(a;) It is not necessary that the appellant should join in the bond.(?/) The appellant's solicitor may be one of the sureties.(2) If the officer who approves of the bond does not know that the sure- ties offered are responsible, it is his duty to examine them as to the nature of their property and the place of their residence, and to require tliem to justify in at least double the penalty of the bond. And he should annex the affidavit of justification to the bond, and require it to be filed therewith. («) The appellate court has power to authorize an amendment of the bond, either as to the amount, or as to the aj)proval thereof;(J) or, with the consent of the obligoi'S therein, by adding the name of another surety.(c) Where two distinct orders are made in the same cause, they may both be included in the same appeal bond; provided the penalty of the bond is sufficiently large, and the condition is broad enough to secure the payment of the whole amouht required to be secured on both appeals.(c?) It has been mentioned that an appeal bond cannot regularly be approved by a master who has acted as solicitor in the cause or matter in which the appeal is taken, or whose law partner has thus acted. (e) But liberty will be given by the appellate court to amend, by filing a new bond mine pro tunc, or by procuring the same bond to be approved of by the proper officer.(/) The Eevised Statutes contain a general provision that whenever a bond is required by law to be given by any person in order to entitle him to any right or privilege conferred by law, or to commence any proceeding, it shall not be necessary for such bond to conform in all (M) Id. il). [v] Rogers v. Patterson , 4 Paige, 453. (TO) Van Wezel v. Van Wezel, 3 Paige, 38. (X) Eldridfre v. Howell, 4 Paige, 457. (J/) North Americ.Tn Coal Co. v. Dyett, 4 Paige, 273. (2) Stndwpll T. Palmer, 5 Paige, 67. (a) Van Wezel t. Van Wezel, supra. (b) Eldridge v. Howell, 4 Paige, 437. (c) Potter V. Baker, 4 Paige, 290. (d) Tyler v. Simmons, 6 Paige, 127. (e) Arte, p. 401. (/) McLaren v. ChaiTier, 5 Paige, 530. 770 Chap. l.J FROCEEDiyGS SUBSHQi'EAT TO THE DECREE. 404 respects to the form thereof prescribed by any statute; but the same shall be sufficient if it conform thereto substantially, and does not vary in any matter to the prejudice of the rights of the party to whom or for whose benefit such bond shall have been given.(^) Whenever such bond is defective in any respect, the court, officer or body who would be authorized to receive the same, or to entertain any proceedings in consequence thereof, if the same had been perfect, may, on the application of all the obligors therein, amend the same in any respect. And such bond shall thereupon be deemed valid from the time of the execution thereo£(7i) The 172d rule requires appeal bonds to be duly proved or acknowl- edged in the manner prescribed by law for the proof or acknowledg- ment of deeds of real estate, before the same shall be received or filed. Under this rule it has been decided by the chancellor that where, by mistake, a bond has not been acknowledged before a proper officer, the error may be corrected by a new acknowledgment of the bond filed. But where the object of the appeal is to take advantage of a mere tech- nical error on the part of the respondent, the court will not allow such a mistake in the acknowledgment of the appeal bond to be corrected.(/) Where the appeal bond is not duly acknowledged according to the provisions of the 172d rule, the appeal is irregular, and may be dis- missed for that cause.(/^) Papers on appeal.'] In the 3d section of the present chapter, and in the 11th chapter of the 1st Book, relative to Hearings, we have men- tioned what papers are to be furnished,(Z) a,nd by whom,(7«) and what papers may be read upon the hearing of an appeal.(«) Place of appeal cause on the calendar.] In making up the chancel- lor's calendar, appeal causes are to be placed thereon as of the same date at wliich they were, entitled to be placed on the calendar of the court below.(o) Hearing of appeal] When an appeal is in readiness to be heard, it may be noticed for heai'ing by either party.(j5) (21) (a) 2 R. S. .^5B, } 33. (A) Id. ib. } 34. (i) Eirlahocli v. Levy, 8 Paige, 197. (J) Id. ib . (l) Ante, p. 314, 384. (m) Ante, p. 31.5. (n) Ante, p. 31.'), 384. (o) Belknap v. Tremble, 2 Paige, 277. Enle 91. (i>) Rnle 120. (21) Hearino op appeal. Appeals in the supreme court are to be lienrd at a general term, either in the dis- trict embracing the county wliere the judgment or order appealed from was entered, 404 PROCBEnrNGS subsequent to the decree. [Book II. nr in a county ndjoining tliat county ; except tliat where the Jiidgraent or order mms untered in the city and county of New York, the appeal must be heard in the first district. (Code, §346.) Eule 50 of the supreme court directs that wliere an appeal is notic:'(l for tlie genei ai term in cases embraced in chapter 3 of title 11 and § 348 of tiiu Code, tlie appeliant shall furnish the iia.pri-a for the court ; and specifies the papers to he furnislied. It also directs that at the commencement of tlie argument, a printed copy of such i)apers. and of the points, .sh ill be furnished to er. eh of the judges, and that three iirinted copies of Slid papers shall be delivered to the attorney of the adverse l)irty. at le;st eight d lys before the commencement of th,' terra. And each p-irty must serve uiion his adversary a printed copy of his points and authorities on which he intends (o rely. In c.ise of the appellant's neglect to furnish to the respondent the said number of copies of the papers, the latter miy move to strike the cause* from the calendar, and that judgment be rendered in his favor. This rule, it has been li:_bl, api)lies to appeals from orders of a county court, grant- ing a new trid, (N.-u-pn-v, All!jn.,-S Ab., N. S. 186.) The court will disre.LMid all papers in manuscript. ( Whrejer v. F,iJtn:ier, 7 Kob. 45.) Where all the necessary papers, on appeal, are uot furnished to the court, by the appellant, the appeal will be dismissed. (.S'lin, Mii.fun'! luft. Co. v. D'v'iiilit. 1 Hilt. 50.) Where no case is made or served, the respondent may. on the calling of the cise, take a judgment of affirmance by defndt. lie is not restricted to a motion to dismiss the appeal, or to strike the cause from the calendar. (P.i.r.sv. Crrowpe, 15 Ab. 2C3 ; S. C. 9 Bosw. 038.) On appeal from an order, where no affidavits were read in opposition to those in supi)ort of the motion, the iire.snmption will be in favor of the statements in the affi- davits read, {facknon v. /:,;/■'/;, 16 .\b. lii'll : S. C. 25 How. 476.) On apjieal from an order denying a motion to vac ite a judgment, for irre.gnlarity. if the irregularity i.< not specified in the notice of motion, the appellate court may presume that the motion was denied on the ground of the defect in the notice. (Lcirig v. Grnhain, 16 Ab. 126.) So, on apped from an order proper to be granted only a.s a matter of f Ivor, the court at general terra, in support of the order, will presume, until the con- trary appears, that it was so granted. {Tj"'iri]i1i>n v. IVood, 17 Ab. 177.) Where an appeal is taken from a judgment, and there is also an appeal from an order denying a motion for a new trial on the juilge's minutes, it is the better course to hear both appeals argued on the appeal from the judgment. (Lane v. BaVeij, 30 How. 76 ; .S. C. 45 Barb. IIP : 1 Ab., N. S. 407.) A motion for a re-argument of an appeal iviU not be granted in a case where the lilaintifi'and defendant were the only witnesses on the trial in the court below and their testimony was conflicting. (F.s^i"r v. Merwin. 25 How, 284.) Section 256 of the Code, which iirovides that in the first judicial district there need be but one notice of trial from either party, does not apply to notice of argiunent on an appeal to the general term. A defiult cannot be taken at a general term for which the appeal is not noticed. ( Wiilali v, Q-regnrii, 19 Ab. 363,) Appeals from orders are, as a general rule, brought on as motions, at the general term. The appeal being perfected by the service of notices, either party may .give notice of the argument, and bring the cause on, as any other special motion. CVan Sant. Eq. Pr. 671.) The cases'and points, and all other ra"ers furnished to the court at a general term in calendar cases, must be printed on white writing jiaper, with a margin on the outer e'lge of the leaf, not less than one and a half inch Avide, The printed page, exclusive of any marginal note or reference must be seven inches long and three and a half inches wide. The folio, numbcringfrom the commencement to tho end of the paper, must be printed on the outer margin of the page. (Rule 52 of su]n'euie court.) Either )iarty may notice an apiieal for argument, or hearing. The notice must be sia-ved eight days liefcne the first day of the term. at which it is intended to bring on the argument, (or double that time if the service be by mail.) and must s;)ecify the time when and the place where the ap)ieal will he heard. (Van Sant. Em. Pr. 718.) Tl;e party noticing the a))peal for argument must prepare and file with the clerk of the county where the general term is to be held, at least eight days befcn'e the com- mencement of the court, a note of issui>. This is a brief note of the title of the cause, the nature of the question, the date of the issue, (that is, the date of the service of the notice of apoe d.) and the names of the nttornevs for the respective parties. (Eule 48 ; Van Sant. Eq. Pr, 718.) The clerk is to prepare a calendar for the general terra, and cause the same to be 773 Cliap. 1.] pjiocEEDi.yas suBSEQUEyr to tiil decree. 404 printetl for each of the justices holding the court. Appeals are to he p'accrl on tlie calendar according to the date of the service of the notice of apyieal (Rule IS ) Thetollowing additional rnle was adopted for the Wm? judicial department, on the, th of February. 1871. "The attorney for either party to an appeal from an order shall file it with the clerk of the county in which the term of the court for which notice of argument of such appeal has been served is to be held on or betor.^ Tuesday of the week preceding the term, a note of issue, in which shall be specified the day of the service ot the notice of appeal, on the respondent or his attorney The clerk shall prei.are a calendar of the cases in which such notes of issue shall be filed and shall enter the cases thereon, in the order of the time of service of notice oCthe appeal. Ko appeals from orders will be heard unless notes of issue have been dnlv tiled and entered on the calendar." It has been decided that where an attorney waits, without a sufficient excuse, until the last day but one for filing notice of argument or issue, before sending it to the clerk to file for the calendar, and circumsUincos then transpire, which prevent his sending his notice in season for the calendar, he will not be allowed to pnt it on, after that time, whatever his excuse may be. ( ]]'ilhiii v. Piane. 4 How. Pr. 26.) When the party who is to furnish the pajiers has noticed the cause for argument without serving a copy of the papers in due time, the other party may move to strike the cause off the calendar, Avithont noticing it himself. But when the cause has been noticed by the party who is to furnish the papers, the other partv must show, in his affidavit for the motion, that he has noticed the cause for argument. iHer/diii-r Coii.'itij Bank v D-rrreux. 5 Hill. 9.) Causes are called in their order upon the calendar, except in the cases where thev have a preference, by statute, or some rule of the court ; as in the cases si ecified iii the act of I860, chapter 167, in which executors and administrators are sole plain- tilfs or sole defendants; or in cases of appeals which prevent the issuing of letters testamentary or of administration, which cases have a preference, both in the com t of appeals and at the general terms of the supreme court, over all actions except criminal cases, and may be moved out of their order on the calendar. (Van Sant, Eq. Pr. 119.) Appeals from orders allowing a provisional remedy have preference over all other motions. (Code. §401. subd. 5.) In some of the judicial districts, special rules have been adopted in regard to the calendars of both general and special terms. Thus in the first district, fifteen causes a day, and no more, are called at the general and special terms ; and in the second district, ten causes only, are called at the general terms. And in the first district, if a cause is regularly called and jiassed, without a postponement by the court, for good cause shown, it thenceforth takes its place on the same or any future calendar, as if the date of the issue was the time when it was thus passed. (Voorhies Code. fith ed. 648, 650 ; Laws of 184'.), j). 708, § 16.) When the ayijieal is reached on the calendar, or regularly moved, the counsel for the appellant opens the argument, the counsel for the respondent replies, and the counsel for the appellant closes the argument. On the hearing of causes at a general or sjjecial term, not more than one counsel can be heard on each side, and then not more than one hour each, except when the court shall otherwise order. (Rule 58 supreme court.) Upon an appeal to the court of common picas of the city and county of New Tork. or to a county court, the appeal must be heard on the original papers, or certified copies thereof; and no copies need be furnished for the use of the court. (Code, § 865.) An appeal to the general term of the supreme court from a judgment entered Ujion the report of referees, or the direction of a single judge of the same court, must be he.inl in the same manner as if it were an appeal from an inferior court. (Code, § 548.) By chapter 433 of the Laws of 1869, whenever a widow, hrin.ging an action for dower, shall make it appear to the court, or a justice thereof, in which such action or appeal is pending, that she has no .suflScient means of support aside from the ]iro] eity admeasured to her, such action or appeal shall have a preference upon the calend.ir of the court in which the same is pending. (§ 5.) By chapter 49 of the Laws of 1870, actions in which executors and administratois are sole plaintiffs, or sole defendants, and acticms for the construction of or adjudica- tion ujion a will in which the administrators with such will annexed, or the executors of such will, are joined as plaintifts or defendants with other parties, shall have .i preferenre in the court of ai>peals. and in the supreme court at the general, sjiecial and ( ircuit terms thereof, over .all actions, except in criminal cases, and may be moved out of Iheir order according'y. 404 FROCEEDIXaS SUBSEQUENT rO THE DECREE. [Book II. The appellant's counsel is entitled to open and close the argument.((7) If the appellant makes default at the hearing, the decree or order appealed from will be affirmed with costs. But if the respondent makes default, the cause must be heard ex parte; and the decree or order will not be reversed or modified, unless it is shown to be erroneous.(r) The only effect of the respondent's default is to deprive him of costs, f the decision of the vice chancellor is affirmed; or to preclude him from the right of appealing to the court of errors if the decision is reversed.(.s-) Where the appellant fails to appear, the court will presume the decision of the vice chancellor to be correct, and will affirm the same, with costs, without any argument upon the merits.(i!) The statute provides that on the hearing of an appeal the chancellor shall annul, affirm, modify, or alter the order or decree appealed from, or make such other oi'der in the cause, as justice shall require, and may remit the cause to the vice chancellor, for further proceedings, or may direct the same to be had before himself, as the circumstances of the case may require. (m) It has been decided under this section that where, by an appeal, the whole cause is brought before the court, if the chancellor does not make a final decree, the whole case will remain before him for a deci- sion upon the equity reserved, unless he shall think proper to remit it to the vice chancellor.(y) But when the appeal is upon a collateral matter not embracing the whole suit, the case is otherwise.(w) In this case the vice chancellor had directed an issue, upon the hearing; from which both parties appealed. And the chancellor entertained a motion for a receiver. In Brockway v. C'o2}p,{x) it was decided that where, upon an appeal from an interlocutory order of a vice chancellor, the same is reversed with costs, and no order is obtained to remit the proceedings to the vice chancellor, the defendant may either cause the order of the chan- cellor to be enrolled, and obtain an execution for his costs on the appeal, or he may proceed as for a contempt, and apply for an attach- ment against the complainant for the non-payment of the costs. Appeals from interlocutory orders of the vice chancellors, made on motion or petition, need not be placed on the calendar, but may be heard on any regular motion day or in term.(«/) (7) Rule 120. {r) stiles v. Bnroh, 5 Paige, 132. (s) Id. lb. m ic]. ii). (?0 2 R. S. 178, S 6S, (oi-ig. ! 62.) (»l Jenkins v. Uinmau, 5 Taige, 309. \W) Irl. ill. (X) 2 Pai-ro, ,"i7S. (1/) liule 120. 774 Chap. l.J JPMOCEEDIXGS SUBSFQtTENT TO THE DECREE. 405 Interest.] "Wiere a decree for costs is appealed from after the costs faave been taxed, and security is given by which the proceedings for the collection of the costs is stayed pending the appeal, the respondent, upon an affirmance of the decree appealed from, is entitled to interest on the taxed bill of costs, as damages for the delay caused by the appeal.<2:) And the rule is the same with respect to a decree directing the payment of mouey.(a) Hffect of the death of a party.] The chancellor will not proceed to the hearing of a cause upon appeal, after the fact of the death of one of the parties is known, until the suit is revived; unless it is heard with the consent of those who have succeeded to the rights of the deceased party. But where, after the entry of an appeal from the vice chancel- lor, and after the cause was ready for a hearing, the complainant died, but the fact of his death being unknown, the cause was heard and decided by the chancellor upon the appeal, it was held that the decree upon the appeal might be entered nunc pro tunc, as of a day previous to the death of the complainant, and after the entering of the appeal.(5) Neiv solicitor on appeal.] The appellant may prosecute his appeal by a new solicitor, without any order of the court below to change the solicitor.(c) And where this is done, the service of papers in the appeal cause while it is pending before the chancellor, need not be made upon the original solicitor.(f7) Papers, Jiow entitled.] Upon an appeal from an order or decree of a vice chancellor, the proceedings should be entitled as in the original suit.(e) But in appeals from the decisions of surrogates and circuit judges, the proceedings in the court of chancery, after the filing of the petition of appeal, must be entitled in the appeal cause.(ee) (25) (0) Belknap v. Tremble, in Chan. Dec. 24th, 1832. Lady Dacre T. Chute, 2 Eep. in Ch. 245. <«) Van Valkenbnrgh v. Fnller, 6 Paige, 10. (6) "Vroom v. Ditmas, 5 Paijre, 528. (c) McLaren v. Charrier, 5 Paige, 530. id) Id. ib. («) Hawley T. Donnelly, 8 Pai.are, 41.'i. iee) Gardner v. Gardner, 5 Paige, 170. (22) Appeal to the generai. term, from orders made at a special ter.m, by a single judge, ob out of court. upon notice. Section 349 of the Code directs that an appeal may, in like manner, and vvitliin the same time, (that is, the same as in case of appeal from a ^judgment, thirty days, § 332,) be taken from an order made at a special term, or by a single judge of the same court , or a county or a special county judge, in any stage of the action, includ- ing proceedings supplementary to execution ; and may be thereupon reviewed in the following cases : 1. When the order grants or refuses, continues or modifies a provisional remedy. 2. When it grants or refuses a new trial, or when it sustains or overrules n demurrer. 3. When it involves the merits of the action, or some part thereof, or affects a sub- stantial right. 4. When the order in effect determines the action, and prevents a judgment from which an appeal may be taken. 775 405 PROCLiEDI.XGS SUBSEQUEXT TO THE DECREE. [Book II. 5. "\Yii(!n the older ia made upon a summary application in an action, after judg-- meiit. and iitfecta a s-nbstantial rig-bt. , The next seetiou of the Code, (§ 350,) provides that § 3-i9 " shall include an order lUiUk' o-nt of court upon, notice ; but in such ease, the order mnst be fii-st enterefi vith the clerli. And for the puqjose of an appeal, any party affected by such order may require it to be entered with the clerk, and it shall he entered accordingly.'' Section 40o of the Code, after giving to a county judge, within his county, all the- ]]Ower» of a jiulge of the supreme court at chambers, in actions in the suiirenie court, further provides that " in all cases where an order is made by a county .judge, it lu.ly be reviewed in the same manner as if it had been made by a judge of the supreme court." As respects ex imrte orders, it is provided by § 324 of the Code, that "an order made out of court, without notice to the adverse party, may be vacated or modified on notice, by the judge who made it, or may be vacated or modified on notice, in the manner in which otlier motions are made." It has been Iteld that special j)roeeedings are not regalated by § 349 of the Code, but de])end ujion the pre-existing laws and practice. {Bedell v. Stickler, 4 How. Pr. 432 ; S. C. 3 Code Rep. 105; Mrittey of Fort Plain, &c.. Plank Poad Co. id. 148.) Wliere an action is tried before the'conrt, without a jury, and the decision does not dispose of all the questions in controversy, but directs a reference to state art account, no appeal regularly lies to the general term, from the order or decree, until after such reference, and final judgment thereon. (C^rriffiu v. Cran.9fon, 5 Bosw. 658.) An order of reference, even if it settles all the material questions, is not appealable. (Tin- People ex irl. McSpedony. Havs. 12 Ab. 204 ) An appeal does not lie from an oi'der of reference, made in a proceeding upon mandamus. (Id.) The provision of §349 of the Code, allowing an appeal from an order made at a special term " when it sustains or overrules a demurrer," applies to all cases in which leave to amend is given, in connection with the decision on a demurrer, and also- to decisions on demurrer to a part of a pleading containing several causes of action or defences. (Conk v. Pnmrmii, 10 How. Pr. 221 ; Baiiman v. Nerw York Central R. P. Co. id. 208,) as well as to all cases where the appeal from a decision on demurrer is taken before judgment is entered. {Nolton v. lPe.sfern Pailvay Co. 10 How. Pr. 67 ; S. C. 15 N. Y. 444 ; jYellls v. DeForest, 6 How. Pr. 413 ; Sutlierland v. Tijlm; 11 id. 251 '; Mattoon. v. Bakei; 24 id. 329 ; Lee v. AinsUe, 1 Hilt. 277 ; S. C. 4 Ah. 463 ; Reiinold.'s v Freeman. 4 Sandf 702; Phipps v. Van Cott, 4 Ab. 90; Ives v. Millir, 19 Barb 197.) By the words a "substantial right," as used in subdivision three of § 349, is intended a fixed, determinate right, independent of the discretion of the court, and of some value. Such a right must exist, and be injuriously affected by an order, to bring a case within that subdivision. A party cannot be said to have a right to what a court has a discretion to gi-ant or withhold. ( Tdlman v. Hiniwni. 10 How. Pr. 89.) In the following cases orders have been held to affect substantial rights : An order for an extra allowance exceeding the prescribed limits, {People t. N. Y. Central R. P. Co. 29 N. Y. 418 ; Wdkvn.wn v. Tifaivi. 4 Ab. 98 ; Union Bank Y. 3lott, 13 Ab. 247 ; ) an order allowing an action to he continued in the name of surviving pUiintiffa. and admitting others in the place of a deceased plaintiff, {St. John V. Croel, 10 How. Pr. 353 ; ) a final order providing that the plaintiff recover of the defendants, $12.0.") diunages, without costs, and that the defendants recover of the plaintiffs a like sum for costs, and that the judgments be offset against each other, {Hoicland v. Cofii}, 32 How. 300 ; S C. 47 Barb. 653 ;) an order denying to a party the exclusive right to a large sum of money, (Artizrvs' Bunk v. Treudwell, 34 Barb. 563 ; S C. 25 W. Y. 489:) an order that in default of discovery, the party required to make it shall be noaf^mted, {BroderUkx. f^iielton, 18 Ab. 213;) an order denying a motion to correct an illegal adjustment of costs, {Sliiyter\. Smith, 2 Bosw- 673.) The Code, (§ 11, subd. 4.) also provides that whenever the decision of any motion made in the supreme court, at a special term, involves the constitutionality of any law of this .state, or is placed, in the opinion or reasons for such decision, of the justice making such decision, upon the unconstitutionality of such law, then an appeal shall lie, and may be made, from such decision, or from the order entered upon such decision, to the general term of said court ; provided, however, that the time for appealing from such decision or order shall not be extended, by that sub- . division. On apiieals from orders made upon special motions, as distinguished from judg- 7TG Chap. 1.] PROCEEDIXGS SUBSEQUENT TO THE DECREE. 406 SECTION VII. APPEALS, FROM THE CHAXCEELOR TO THE COURT FOR THE CORRECTION OF ERRORS. (23) Power nf the court on apj)eal.'\ The court has full power to correct ments, no security is required, (Beach y. iSaiitliirortJ/, Q Bai-b. 173; S.C.I Code Rep. 99 ; Allen v.' Johnnoii, 2 Sandf. 029 ; Nidiolsnii v. Dunham. 1 Code Rep. 119 ; Siiiei-son V. Biiniev, 6 How. Pr. 32 ; S. C. 1 Code Rep., N S. 189 ; Cook v. .Pome- ro'i, 10 How. Pr. 103,) unless a stay of pi'oceedings is wanted. {Bacon v. Heading, 1 Duer, 622 ; S. C. 11 N. T. Leg. Obs. 122.) Notice of appeal to the general term, from an order, sliould specify the part of the order sought to be revie\ved. if the order be appealed from in part, only. Such notice must he served on the clerk of the county where the order is entered, as well as on the opposite attorney. Appeals from orders are, as a general rule, brought on as motions, at the general term. The appeal being perfected by the service of notice, either party may give notice of argument, and bring on the same, in the same manner as any other special motion. (Van Sant. Eq. Pr. 671.) Section 400 of the Code was not intended as a strict definition of an order, and does not make every decision or resolution of a court or judge an order upon its being put in writing, when it otherwise would not be. The term direction, so far as any right of appeal is concerned, properly includes only mandates on paities or officers, or final determinations of rights. (Hoicard v. Freeman. 6 Rob. 511 ; S. C. 7 id. 25 ; 3 Ab., N. S. 202.) Orders which impose upon a party to an action such a charge as the payment of money, not as a condition to the granting of some favor or relief to which he is entitled as a matter of right, but as an obligation and duty, affect a substantial right, if he ought not to pay it. or the whole of it, and are therefore appealable. The making of such an order is not in the sole discretion of the judge who makes it, but is the exer- cise of a, legal discretion, which, if erroneous, may be reviewed and corrected. (Leslies. Leslie. 6 Ab , N. S. 193; S. C. 10 id' 64.) An order made at a special term, in an action for divorce, requiring the husband to pay an allowance for the support of his wife pending the litigation, affects a substantial right, and is appeal- able to the general term. (Id.) An order giving an allowance in addition to costs is appealable. (Gcn'i v. Smith, 6 Rob. 563 ; S. G. 3 Ab., N. S. 51.) An application for leave to amend a pleading, on the trial, is always addressed to the discretion of the court ; and the denial of such an application is not the subject of appeal or review. {Dennis^. tSiiell, 54 Barb. 411.) And an order allowing a defendant to amend his answer by setting up an additional defence, is an exercise of the discretion of the court, and does not aifect a substantial right. It is therefore not appealable to the general term. (Boiniianv. DePeiister. 2 Daly, 203.) So, aa to the allowance of an amendment to the complaint in order to enlarge the cl:iim for damages. (JohvKnnv £ro!C», 57 Barb. 118.) And the.terms on which an amend- ment to a complaint on a promissory note, by inserting a count on the original con- sideration should be allowed, are wholly discretionary, and are not the subject of review on exception, (Villmrdy. Soderiek. 51 Barb. 616.) An order denying the removal of a cause from a state to a United States court, in a c;ise where the petitioner is strictly entitled to it, since it may be pleaded as a defence, affects a substantial right, and is appealable, at least to the general term. (DfCimp V. ^.'ew York Mu. Ins. Co. 2 Sweeney. 481.) If a case is referable, the discretion of a judge, exercised in ordering a reference, will not be reviewed on appeal. {Ludlow v. American Exchange National Bank, .59 Barb. 409.) • ^ .^„ .„, See, further, as to what orders are appealable, "Wait's Digest, vol. 4, pp. 103, 104. 105. (23) Appeals to the court of appeals. Section .333 of the Code provides that an appeal may be taken to the court of appeals in the cases mentioned in section 11. Section 11 enacts that the court of appeals shall hav.' exclusive jurisdiction to review, upon appeal, every actual deter- 777 406 FBOCEEDINGS SUBSEQUENT TO TBE DECREE!. [Book II. rain.) An order of discontinuance, without costs, even of a legal action, commenced in 119 40(j PROCEEDINGS SUBSEQUJSXT TO THE DECREE. [Book II. the supreme court, for the recovery of money only, against a sole defendant, though made after the cause is at issue and referred, unconditionally and without the consent of the defendant, is within the power and in the discretion of that court, and uitliougli expressly made appeahihle to the court of appeals, by the Code, is not reviewab.e there. And an api)eal from the affirmance of such order by the general term, will be dismissed. {DeBar.oiito v. Dnyormani, 41 N. Y. 35.5.) "Where a verdict is set aside, and a new trial ordered, for errors in law, the court of appeals may review the order. {East Hirer Bank v. Kemiedy, 4 Iveyes, H'.).) The time Uxed by statute for the allowance of an appeal to the court of appeals, in an action originating in a justice's court, cannot be enlarged. Accordingly, wliere one general term of the supreme court had elapsed .after a justice's judgment, and at the next term the court allowed an appeal, and directed the order to be entered as of the preceding term, the appeal was dismissed. ( Wait v. Van, Allen, 22 N. Y. S19.) An order allowing an appeal to the court of appeals will not be granted because counsel were not fully prepared to argue on the hearing. {Drucker v. I'at- tersoii, 2 Hilt. 135.) Fi-om a judgment upon a review of suramarj- proceedings under the landlord and tenant act, an appeal lies to the court of appeals. {People ex rel. C'lute v. Board- man, 4 Keyes, 59.) The New York common pleas will not allow an appeal to the court of appeals, in an action brought from an hiferior court, unless the case involves great interests, or a principle of law upon which several cases depend. {PwrcJiase v. Jarkson, 14 How. Pr. 230 ; S. C. 1 Hilt. 3.!57 ; Palmer v. Moeller, 9 Ah. 20, n. ; S. C. 19 How. Pr. 322 ; 2 Hilt. 421.) But where the decision of the common pleas, on the question presented, is in conllict with a decision of the supreme court, an appeal to the court of appeals should be allowed. (Clajip v. Cfrans, 2 Hilt. 243 ; S. C. 9 Ab. 20.) An order of the supreme court, denying a motion to set aside a regular judgment in that court, on the ground that the defendant was not served with process, and the appearance for him was wholly unauthorized, is not appealable to the court of appeals. {Foote v. Ln.throp, 41 N. Y. 358.) No party has a " substantial right," within the meaning of § 11 of the Code, to have a regular judgment against him set aside on motion. (Id.) An appeal lies to the court of appeals, from an order denying a motion to change the place of trial, where the action is an equitable one, brought for an injunction to restrain the erection of a bridge across a public street, and where the ]jlaintiff alleges an apprehended injury to his premises, (Lelavd v. Hathorii, 9 Ab. N. S. 97.) An appeal also lies from an order of the supreme court reversing a final decree of a sur- rogate, in a proceeding for an account, and directing the proceedings to be remitted to the surrogate with instructions to proceed and settle upon certain specified ])rin- ciples. ( Warjener v. Reileii, 4 How. Pr. 195 ; S. C. 2 Code Rep. 130.) And where, for an error in law, the supreme court reverses a decree of a surrogate, admitting a will to probate, and remits the proceedings back to the surrogate, the order of reversal is a final determinatiim of the proceedings, and is appealable to the court of appeals. <,Talhotv. Tollot. 23 N. Y. 17.) A judgment of the supreme court, affirming an order of a surrogate, denying a motion to discontinue proceedings for accounting by a guardian, and directing that the proofs be closed, is not an order or judgment from which appeal lies to the court of appeals, because the surrogate's Older was not a final Older. {TompKifiS v. Soidid', 7 How. Pr. 194.) A motion to open a judgment of divorce, on the ground that it was obtained bj' a collusive agreement of the parties, is addressed to the discretion of the court ; and even an order made at general term reversing an order of the special terra, granting such relief, is not appealable to the court of appeals. {Birdsall v. Blrdsall, 41 N. Y. 889.) It senns that under the Code, (§ 11 as amended \a 1870,) an order setting aside an attachment issued as a provisional remedy, is appealable to the court of appeals. {6-ates V. Kortli, 44 N. Y. 271.) If the successful party fails to enter judgment, the other party, if he desires to appeal, may have an order requiring the former to enter judgment against him : and may appeal from the judgment entered pureuant to such an order. This is not an entry of judgment by consent. {Skinner v. Ouinn, 43 N. Y. 99.) An appeal does not lie to review a judgment on an award, and a refusal to set aside the award on a stntulc arbitration. The remedy is by writ of error. (Tiirnbull V. Martla, 45 K. Y. GOO.) ■ISO Chap. 1. J FROCEEDI.\GS SUBSEQUEXT TO TE[<: DECREE. 406 An order appointing commissioners in proceedings by a railroad company to take lands, is a special proceeding, from wliich an appeal to the general term lies, nnder chapter l!70 of the Laws of 1S54, and is a final order afi'ecting a substantial right, made in a special proceeding, within subdivision three of § 11 of the Code, and appealable to the court of appeals, {libiisselaer d- /Sarato'ja litt'ilroad tompany V. J)avis, 43 N. Y. 137.) It seems that an order, npon an appeal, lieard irregularly in a wrong district, and after acts by the appellant which the court might think, if they were proved, and ni)t excused or explained, would operate as a waiver of the appeal, is not the .subject of an appeal to the court of appeals. {Birdsall v. Birdsall, 41 How. Pr. o>*9.) No appeal lies to the court of appeals from an order of the general term of the supreme court, made upon appeal from an oi'der in an action in the county court. This is not an ctition commenced in the supreme court, nor brouglit there from another court. ( Yo'inr/Jia^s.- v. i^ nnar, 47 N. Y. 99.) A traverse of forcible entry and detainer is not an action, and an order of tlic general term, granting a new trial therein, is not appealable to the court of appeals. (Pd)jx'e fx i-eL. jtiobiiiso't v. Mtjlaniiff, 47 N. Y. 661.) An order undo at general term, reversing a judgment of the special term, without granting a new trial, cannot be appealed from as an order. Judgment of reversal must be perlected. and thit ajjpealed from (Melile v. Vondi-nrtiUicli-e, 46 N. Y. 589.) In a case tried before a jury, an order of the general term, granting a new trial, upon questions of f.ict. is not appealable. (iVric/lit v. Buiiter, 46 N. Y. 409.) And an order setting aside (on any ground) the verdict of a jury on questions of f ct ordered to be tried in an equity action, and ordering a new trial, is an order mide in the discretion of the court, and not .appealable to the court of app.eals, uniUn- § 25 of the Code. The mode of trial of issues of tiict, in equitable actions, is discre- tionary with the court. (Cn'b' v. Tifft, 47 N. T. 119.) An order denying a motion to vacate a judgment as irregular, e. g. , a personal judg- ment entered in a meclianic's lien case after the lien has failed by the lapse of a vear. is not applicable to the court of appeals. {^Scltaettler v. Gardiner. 47 K. "Y. 404.) An appeal from an order granting a new trial, to the court of appeals, witli a stipulation for judgment absolute against the appellant in c.ise the order is atfirnied, is only proper and advisable where the sole question that can be presented ujion the record relates to and will determine the merits of the controversy. {Cobb v. Hat- field, 46 N. Y. 533.) In Dickson V. Bri,adv:av & Sevejith Avmue R. R. Co. (47 N. Y.p07,) it is said it is not advisable to appeal to the court of appeals from an order gi-aflting a new trial, and to stipulate, as provided by subd. two of § 11 of the Code, except where there are presented for decision no questions, except such as, if decided adversely, would be conclusive against the case of the party appealing. An order under § 317 of the Code, requiring the plaintiif to give security for costs^ is discretionarv, and not reviewable in the court of appeals. (Q-i-flneij v. Ptirdi/. 4/ N. Y. 676.) For the same reason an order sustaining or overruling a demurrer, is not appealable to that court. (People er rsl.- Kilborne v. Benedict, 47 N. Y. 607.) If a charge, as a whole conveys to the jury the correct rule of law on a given ques- tion, the judgment will not be reversed on appeal, although detached sentences may be erroneous ; and if the language employed is capable of ditferent constructions, that one will be adopted which will lead to an affirmance of the judgment, unless it fairly appears that the jury were. or. at least, might have been, misled. {Caldicell v. Nr^rJerseti Steiiw'r,'-rt Co. 282 ;'S. C. 56 Barb. 425.) No appeal lies to the court of appeals from an order denying a motion for a new trial on the ground of surprise or newly discovered evidence : the (luestion being one of discretion in the court below. ( Donley v. Gh-'hfim, 48 N Y. 658.) See, further, as to the cases in which an appeal lies, or the contrary, to the court of appeals. Hfii-k(U v. Belden. 47 N. Y. 624 ; Paul v. 3Ia:ir/er, id. 460 ; Ldjler v. Field, id. 407 ; Bennett v. Lake, id. 93 ; .Balneal v. fh-eeley. 12 Ab., N. S. 191 ; Brivklee v. BHiMee, 47 N. Y. 40. See, also, "R'ait's Co.le, pp. 654, &c., 664 to 0,0, where the decisions on this subject are collected ; and Wait's Digest, vol. 4, pp. 94 to 97, for the later decisions. „ , ,. ., , , ^Stniemevt of fads, bii general term.] Section 383 of the Code directs that when anv of the courts mentioned in § 11 shall, at general term, render judgment upon a verdict taken subject to the opinion of the court, the questions or conclusions of law, together with a concise statement of the facts upon which they arose, shall be pre- 781 406 pRocEEDixGS svBSEqvEyr TO TBE i:\CREE. [Book II. and redress all errors that may happen in the court of chun- eery.(/H34) Upon any order or decree of the court of chancery being brought by appeal to this court, the court shall examine all errors that shall be assigned, or found, in such order or decree; and shall hear and deter- mine such appeal, and all matters concerning the same; and shall have (/) 2 K. S. 1«6, i 25, (orig. } 24.) pared by and under the direction of the court, and shall be filed with the judgment roll, and be deemed a part thereof, for the purposes of a review in the court of appeals, it has been held there is not to be a finding of facts from the evidence, by the court at general term, but only a statement of the facts that were uncontroverted and con- ceded on the trial. {Panlw.lK v. Matf.soiK 15 Ab. ¥)'2 ; S. C. 25 How. 161 ; 25 F. y. 211 ; Brower v. Orsei; 2 Bosw, 365.) When a case is sent back from the court of appeals, for re-settlement of the facts, the general term has no power to remit the case to the special term for a re-statement of the fact.s on which the judgment was there rendered. (Smith v. Grant, 17 How. Pr. 381.) The court of appeals is to be furnished with precisely the same facts as those on wbich the general term founded its determination. (Id.) The return of the court below is the only place where the appellate court can look for the facts upon which the judgment was ren- dered. Facts stated in the opinion, or elsewhere found, are not to be regarded. iMcGrregor v. BiieLl, 1 Keyes, 153 ; S. C. 17 Ab. 31.) WTiere the record and the papers present no findings of facts, nothing will be intended or presumed against the correctness of the judgment. {Viele v. Troy & Boston R. M. Co. 20 N. T. 184.) Or, If from the meagre facts presented in th« papers H cannot be ascertained whether the judgment is correct or not, it will be allowed to stand. (Rice v. Ishain, 1 Keyes, 44 ; Carman v. Pultz, 21 N. Y. 547.) But if the party desires to have the case re-settled, and the facts re-stated, the cause may sometimes be suspended until application can be made to the inferior court for that purpose. (Id.) But only under peculiar circumstances, or where the appellate court cannot do justice to the parties, from the case presented, and does not find it expedient to dismiss the appeal, ) If the person entitled to bring such writ or appeal, dies during the continuance of any disability specified in the statute, his heii'S, devisees, executors, or administrators entitled by law to bring such writ or appeal, may bring the same, at any time within two years after such death. (g-) But the existence of any disability specified in the statute will not authorize the bringing of a writ of eiTor or appeal upon any judgment or decree after the expiration of five years from the time of rendering the same.{r) In the case of Jenkins v. Wild,{s) Chief Justice Savage expresses an opinion that there is a test of the question, whether a decree is final or interlocutory, arising from the peculiar language of the section of the statute which limits the time for appealing from final decrees.(^) That section requires appeals from such decrees to be brought within the same time after the enrolment thereof, as is prescribed for bringing writs of error. The chief justice observes — " The term enrolment is not applicable to an interlocutory decree or order, nor to any but a final decree. It seems to follow that none are final decrees but such as are capable of enrolment. All others are but interlocutory, although they do decide the principle in controversy." The time for appealing from interlocutory orders or decrees, includ- ing decrees for the general costs of the cause, is fifteen days after notice of such order or.decree shall have been given to the party against whom the same was made, or his solicitor, (m) , We have already inquired, in the last section, relative to appeals from vice chancellors — in what cases and in what manner notice of the (0) Id. 594, } 22. {p) Id. ib. (q) Id. 595, i 23. (r) Id. ib. ( 24. (s) 14 Wend. 539. (t) 2 K. S. 502, i 78. («) 2 R. S. 605, } 79. 787 i03 PROCEEDINGS SUBSEQUENT TO THE DECREE. [Book II. entry of an order or decree must be given to the opposite party, in order to limit his time for appealing.(y) The remarks there made, ;i lid tlie decisions referred to, are also applicable to appeals from the cliancellor to the court of errors. It may be added, however, that in I lie case of Jenkins v. Wild,{io) it was held by the court of errors, that notice, in the section relative to appeals to that court, does not mean knowledge, but a regular formal notice to be given. This notice must be given, and implies a positive act of the party in whose favor the decree is made, to limit the right to appeal. Possibly, the party enter- ing the order or decree would be estopped, as in 4th Paige, 273, from alleging that he had no notice of his own acts. The statute does not require notice to be given to the prevailing party. The distinction between final and interlocutory decrees has been already stated.(a;) If the appeal is not made within the proper time, the objection should be taken by motion. It is too late to do so at the hearing.(?y) And putting in an answer to the petition is a waiver of all objections of form.(2) Mode of appealing — notice.] The appellant must, within the time prescribed by law for making an appeal, deliver to the register or assistant register, with whom the decree or order is entered, a written notice, stating that such decree or order, or some particular part thereof, to be specified, is appealed from.(a) (26) And within eight days thereafter, he must serve a like notice on the solicitor of the adverse party, or the appeal will be considered as waived.(5) It has been decided that this last clause of the 117th rule, applies to appeals from the chancellor to the court for the correction of errors, only, and is not applicable to appeals from a vice chancellor.(c) Bond, or deposit. "Within the time allowed for appealing, the appel- lant must also make the deposit, or file the bond required to be given, as security for costs on such appeal.(fZ) (27) (t!) .Arte, )i. 400. [w) 14 Wend. 544. {X) Ante, p. 326, 330. iy) Per Snthcrlanil. J., DLsbiow v. Henshaw, SCowen, 353. {z) Rogers v. Crnger, 3 John. 564. («) Rnle 117. (6) Mem. (0) EldrWge v. Howell, 4 Paige, 457. (d) Kale U7. (26) The notice of appeal required to be given, on an appeal to the court of appeals, is specified in § 327 of the Code. See anU, note 20 of this chapter. (27) Secckitt OS appeal. 1. For payment of costs and damages.'] The Code, (§334,) provides that to render an appeal effectual for any purpose, a written undertaking must be executed, 788 Chap. l.J PROCEEDINGS SUBSEQUE^'T TO THE DECREE. 409 on the part of the appellant, by at least two sureties, to the effect that the nppellant win pay all costs and damages which may be awarded against him, on the appeal, not exceeding $500 ; or that sum must be deposited with the clerk with whom the .iudgment or order was entered, to abide the event of the appeal. Such undertaking or deposit may be waived by a written consent on the part of the respondent. An undertaking given to effectuate an appeal under the above section, and which recites that the appellant intends to appeal, is &c., not void as showing by the reci- tal, that the undertaking was executed before the appeal. There is no improjiriety in the recital that the party intends.to appeal. He forms the purpose to appeal, anil the giving of an undertaking being an essential constituent to the completion of his puriiose, it is not only truthful, but appropriate, to recite the fact in the instrument ^vhich is to effect that purpose. The two things are essential parts of one transac- tion, and are not not only to be construed, but to be taken together as necessary complements to a thing perfected by their joint agency. (Fmi-est v. Havens, 38 N. Y. 469.) The undertaking is not sufficient unless it mentions '• costs," as well as damages. {Langley v. Warner, 1 N. Y. 606 ; S. C. 3 How. Pr. 363 ; 1 Code Rep. Ill ; Wilson V. Alk7i, 3 How. Pr. 369.) Where two different sums of money were adjudged to different defendants, but only one record was made, and the plaintiff appealed to the court of appeals, it was held that only one undertaking to pay costs and damages on the appeal, was necessary. (SviWi V. Lynes, 2 N. Y. 569.) "Where an appeal was taken from two orders, and an undertaking was given for the amount prescribed by statute, it was held that the undertaking was not large enough, and that the appeal must be dismissed, unless the appellant amended. (iSc/iermtrhorn v. Andmson, 1 N. Y. 430; S. C. 2 Code Rep. 2.) On an appeal from an order requiring a purchaser at a judicial sale to complete his purchase, no other undertaking than that prescribed by § 334 is required, {Criifi- uvld V. Fowler, 15 Ab. 368 n. ;) and such security is all that is requisite to stay pro- ceedings, in such a case. (lb.) Where a statute reqiiires an undertaking to be entered into by sureties, in order to give a right of appeal, an instrument containing the requisite stipulations is valid, although it does not express a consideration, and is not under seal. (DooUttle v. Dininny. 81 N.Y. 350 ; Seacord v. Moman. I'V How. Pr. 394 ; S.C. 35, id. 487; 4 Ab., N. S. 249 : Tliomx-sun v. BlancMrd, 3 N. Y. 335 ; S. C. 3 Code Rep. 196.) The statute of frauds applies only to common law agreements, where the consideration was the subject of mutual agreement between the parties. It does not apply to instruments created under, and deriving their obligation from, special statutes, without the acceptance or assent of the party for whose ultimate benefit they were given. (Id.) An appeal to the court of appeals without an undertaking amounts to nothing. It is in effect a nullity. (Kelsei/ v. Campbell, 14 Ab. 368 ; S. C. 38 Barb. 238.) So if the sureties fail to justify. (Id.) But an ineffectual appeal, rendered so by ai insufficient security, is no bar to another appeal within the time allowed by stat- ute. (Id.) The appeal will be effectual if the justification states that the sureties are worth double the amount of the judgment ; but it will not be sufficient to stay proceed- ings unless the sureties also justify in double the amount specified in § 334, relative to costs and damages. (Hoppock v. Cottrell. 13 How. Pr. 461 ; Newton v. Harris. 1 Code Rep.. N. S. 191 ; S. C. 8 Barb. 306.)' All objections to the insufficiency of the undertaking to stay proceedings will- be considered waived by the silence of thf respondent. {Halsey v. Flint, 15 Ab. 368.) (jiving an undertaking under § 334, on appeal to the court of appeals, neither discharges the lien of the judgment, nor the sureties in the appeal to the general term ; nor does it release a deposit made, in case the bond is waived. (Parsons v. Travis, 2 Duer, 659.) And where a deposit has been made, in lieu of the bond on the appeal to the general term, but is afterwards lost, during the appeal to the court of appeals, the loss must fall on the appellant, where no negligence or blame can be imputed to the respondent. (Parsons v. Trains, 6 Duer, 650.) The " aflSrmance " mentioned in an undertaking on appeal signifies an affirmance by any legally constituted tribunal having final jurisdiction of the cause. Hence the sureties in an appeal to the general term are liable if the general term reverses the judgment appealed from, but the court of appeals reverses that decision and affirms the special term judgment. (Robinson f. Plimpton, 25 N. Y. 484 ; Gfardner 789 09 PROCEEniXGS SUBSEQUENT TO THE DECREE. [Boolc II. r. Barney, 34 How. 467.) There must be an affirmance of the judgment which is fiiuil. and not merely interlocutory leaving room for further litigation, in order to bind' the suretiofi. {Poppeiihassii v. Seeley, 3 ICeyes, 150; S. 0.41 Barb. 450.) Where .1 judgment absolute, on demurrer, was pronounced at a special term, but on appeal to the general term, the judgment of that tribunal was that ■' the judgment is affirmed, except that the defendants have leave to answer the complaint within twenty d.iys ; the costs of appeal to abide the event of the action " ; it was held that on an ordinary undertaking, the sureties were not liable, upon such an affirm- ance. (Id.) On an appeal from a judgment against two or more defendants, an undertaking reciting that " if the judgment, or any part thereof, be affirmed," the sureties will pay the damages and costs that shall be awarded, binds the sureties, although it may be affirmed as to one of the appellants and reversed as to the others. {Seacard v. Morqan, 35 How. 477 ; S. C. 4 Ab. N. Y. 249 ; Gardiner v. Baiiiey, 24 How. 407.) Where the appeal is dismissed, the sureties are not liable. {T)r:immond v. Husson, 14 N. Y. 60 ; S. C. 1 Duer, 142, sub. nora. Watson v. Hassim.) If a statute, allowing increased damages, is passed intermediate the time when the obligAtion is assumed by the sureties and the time of affirmance, so that the d.imciges are more than the law allowed at the time of giving the undertaking, the sureties are not discharged from their liability. {Horner v. Liiman., 4 Keyes, 237.) They assume the obligation subject to the power of the legislature to modify or augment their liability, and arc bound by the contract, as construed under the law in force at the time of performance. (Id.) In an action upon an undertaking given in an action for the claim and deliver)' of personal property, judgment may be rendered for the penalty of the undertaking, L.nd iide 'fst thereon from the date of the judgment. (Emerson v. Booth, 51 Barb. 40.) And it is a general rule that the recovery against a surety in a bond for the payment of money is not limited to the penalty, but may exceed it so far as is necessary to inc.ude interest from the time of the breach. [Brainard v. Jones, 18 N'. r. 35,; 2. On aippeal from a , judgment for money .1 Section 835 of the Code directs that if the appeal be from a judgment directing the payment of money, it shall not stay the execution of the judgment, unless a written undertaking be executed, on the part of the appellant, by at least two sureties, to the effect that if the judgment appealed from, or any part thereof, be affirmed, or the appeal be dismissed, the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if it be affirmed only in part, and all dam- ages which shall be awarded against the appellant, upon the appeal. "Whenever it shall be made satisfactorily to appear to the court that since the exe- cution of the undertaking the sureties have become insolvent, the court may, by rule or order, require the appellant to execute, file and serve a new undertaking as above ; and in case of neglect to execute such undertaking within twenty days after the service of a copy of the rule or order requiring such new undertaking, the appeal may, on motion to the court, be dismissed with costs. (Id.) Whenever it shall be necessary for a party to any action or proceeding to give a bond or an undertaking, with surety or sureties, he may in lieu thereof, deposit with the officer or into court, as the case may require, money to the amount for which such bond or undertaking is to be given. (Id.) The court in which such action or proceeding is pending may direct what dispo- sition shall be made of such money, pending the action or proceeding. (Id,) In any case where, by this section, the money is to be deposited with an officer, a judge of the court, at special term or at chambers, upon the ai)plication of either party, may, before such deposit is made, order it to be deposited in court, instead of with such officer, and a deposit made pursuant to such order, shall be of the same effect as if made with such officer. (Id.) The giving of the security provided for in this section stays ju-occedings on the judgment, by force of the statute, without anv intervention of the ])Ower of the court. (D'lckmcmv. Vnliente, 43 Barb. 131 ; S. C. 28 How. 346 ; 19 Ab. 130.) The undertaking required by § 335, should state the amount of the judgment from which the ajipeal is taken. (Harris v. Bennett, 3 Code Rep. 23.) It should be filed and served with the notice of ap))eal. (N'ew York Central Ins. Co. v. Safford, 10 How. Pr. .344.) If filed and served after the appeal has been perfected, by giving the notice of appeal and the undertaking required by § 334, it will not stay proceed- ings. (Id,) 790 Chap. l.J PROCEEDINGS SUBSb-QVENT TO THE DECREE. 409 "Wliere the respondent finds that the undertaking is defective, he must not dis- regard it and proceed on the judgment, but he should move to have the undertaliing set aside, (i'arfitt v. Warner, 13 Ab. 471.) This section is applicable to appeals from the special to the general term, except that the neglect to give a new undertaking, when required, is not accompanied by the penalty of dismissal. (Lrenter v. Fields, 1 Keyes, 483.) The phrase " payment of money," in this section, does not include payment of money out of a fund in court . (Curtis v. Leav'itt, 10 How. Pr. 481 ; S. C. 1 Ab. 274.) Consequently, a judgment directing the payment of money out of the hands of a special receiver does not come under this section. (Id.) And an appellant, in such a case, may furnish the under- taking prescribed in § 334, which will be adequate for all the purposes desired. (Id.) Where a party does not give a sufficient undertaking, he may be relieved under § 327, and allowed to amend. (jSttrnhavs v. Schmidt, 5 Ab. 66.) A judgment directing a new trial and restitution cannot be enforced after the appellant has given the undertaking required by § 335, to the amount awarded, by way of restitution and costs. (Britton v. Pkillifs, 16 Ab. 33 ) The security amounts to a stay of proceedings, in such a case. If the restitution is ordered on a motion, after judgment, the undertaking given on appeal from the judgment in the action will not operate to stay restitution. (Id ) Where a party who has parted with his interest in the suit appeals from a decree, the giving of the undertaking prescribed in § 335 does not stay proceedings on the judgment, as between parties alone affected by the decree. (Hatklei/ v. Hufje, 4 Keyes, 123.) The question as to whether a party has complied with the provisions of the Code, in giving security on appeal can only arise upon motion to set aside the proceedings of the opposite party, taken in disregard of the undertaking given. {Byckman v. Vaiiente, 43 Barb. 131 ; S. C. 19 Ab. 130 ; 2S How. 846.) Where the judgment is affirmed as to one of several defendants, but reversed as to others, sureties in an undertaking giveu in pursuance of § 335 are liable, to the amount of the affirmance. (Seacard v. Morgan, 3 Keyes, 636 ; S C. 35 How. 4S7 ; 4 Ab., N. S. 249 ; 17 How. Pr. 394 ; Gardner v. Barney, 24 How. Pr. 467.) The privilege of exacting a new undertaking from the appellant, in the event of the insolvency of the sureties, is dependent entirely on this statute. ( Willett v. Stringer, 15 How. Pr. 310; S. C. 6 Duer, 686.) A new undertaking will not be directed whore only one of the sureties has become insolvent. (Id.; liHseman v. Su-an, 11 Ab. 112 ; Hartford Qaarrii Co. v. Pendleton, 4 id. 460.) An allegation in the complaint, of the execution of the undertaking, if not denied in the answer, is sufficient allegation of its existence, and sufficient proof of its regu- lar execution and complete delivery. (Rolmi, v. (xood, 36 N. T. 40S ; S. C. 2 Trans. Ap. 103.) 3. On, appeal from a judgment for the assigiitnent or delivery of doeuments, &c. ] If the judgment appealed from directs the assignment or delivery of documents, or personal property, the execution of the judgment shall not be stayed by appeal, unless the things required to be assigned or delivered be brought into court, or placed in the custody of such officer or receiver as the court shall appoint ; or unless an undertaking he entered into, on the part of the appellant, by at least two sureties, and in such amount as the court, or a judge thereof, or county judge, shall direct, to the effect that the appellant will obey the order of the appellate court, upon the appeal. (Code, § c36.) In Elliott v. Buckland, (37 How. 71,) it was held that in a successful action for the claim and delivery of personal property, from' which the defendant appealed, the undertakings necessary to stay proceedings were those required by §§ 334, 335 and B36. 4. On appeal from a judgment for the sale or deliver'/ of possession of real propert'l, or for the sale of mortgaged prcmises.'i. If the judgment appealed from directs the sale or delivery of possession of real property, the execution of the same shall not be stayed unless a written undeitaking be executed on the part of the appellant, with two sureties, to the effect that during the jiossession of such property by the appellant, he will not commit, or suffer to be committed, any waste thereon, and that if the judgment be affirmed, he will jiay the value of the use and occupa- tion of the property, from the time of the appeal nntil the delivery of the possession thereof, pursuant to the judgment, not exceeding a sum to be fixed by a judge of the court by which judgment was rendered, and which shall be specified in the undertaking. (Code, § 338.) 791 409 FROGEEDmaS SVBSEQUENT TO THE DECREE. [Book II. When tlie judgment is for the sale of mortgaged premises, and the jjayment of a deficiency arising upon the sale, the undertaking shall also provide for the payment of such deficiency. (Id.) An undertaking pursuant to § 334 will be sufficient to rendei an appeal from a judgment directing the sale of mortgaged premises ell'ectual, but not for a stay of pro- ceedings. {Fireimn's Ins. Co. v. Bay, 3 How. Pr. 424 ; S. C. 2 Code Rep. 8.) Unless the proper security is given, the proceedings will not be stayed. {People V. Church, 2 Lans. 459, 468.) 5. Dispensing with, or limitinff, the security required hy §§ 335, 386 and 338.] Section 339 of the Code provides that the coiirt below may, in its discretion, dispense with, or limit, the security required by §§ 835, 336 antl 388, when the appellant is an executor, administrator, trustee or other person acting in another's riglit ; and may also limit such security to an amount not less than fifty thousand dollars, in the cases mentioned in sections 3i6, 337 and 338, where it would", otherwise, according to those sections, exceed that sum. Upon an appeal by executors, the amount of the security may be limited to the amount of assets disclosed to be in their hands. {Hills v. Forbes, 12 How. Pr. 466.) The sureties are not compelled to justify to more than double the amount of the judgment proper. {Hi,ch v. Beekman, 2 Code Eep. 63.) The sum to be named in the undertaking is to be fixed by a judge ; and the only discretion that resides in the court is confided to it by § 839. If the sum exceeds $50,000 it may be reduced. ( Watt v. Watt, 15 Ab. 367 n.) 6. Undertakings mail he in one hMtrament, or several ; service nf copy.} The undertakings prescribed by sections 834, 335, 336 and 388, of the Code, may be in one instrument or several, at the option of the appellant ; and a copy, including the names and residence of the sureties, must be served on the adverse party, with the notice of appeal, unless a deposit is made, as provided in section 834, and notice thereof given. (Code, § 340.) To render an appeal to the court of ap])eals a stay of proceedings upon the judg- ment, a copy of a proper undertaking must be served with the notice of appeal. Filing and service of a copy of an undertaking on a day subsequent to that on which the notice of appeal was served will not operate as a stay. {Cushmaii v. Martins, 18 How. Pr. 402 ; S. C. 6 Duer, 660 ; The New York Central.Ins. Co. v. The National Protection Ins. Co. 10 How. Pr. 344.) The court which rendered the judgment appealed from will not, on such a state of facts, order proceedings stayed pending the appeal. (Id.) It will not so order unless the proceedings upon appeal are amended and validated upon a motion made for that pnrpose, and with the assent of the sitre- ties in the undertaking. (Id.) The rule as to the necessity of filing and serving a copy of the undertaking with the notice of appeal, and not afterwards, is the same on appeal from a judgment of the special term to the general term as on appeal to the court of appeals. {Smith v. Heerinance, 18 How. Pr. 201.) For a disregard of this section, costs will be imposed. {Beach v. Southworth, 6 Barb. 173 ; S. C. 1 Code Rep. 99.) 7. Affidavit of sureties ; e.xieptions to, and justification ly, ■sureties.'] < An undeitaking iipon an appeal shall be of no effect, unless it be accompanied by the atfidavit of the sureties that they are each worth double the amount specified therein. The respondent may, however, except to the sufficiency of the sureties, within ten days after the notice of the appeal ; and unless they or other sureties justify, before a judge of the court below, or a county judge, as prescribed by sections 195 and 196, within ten days thereafter, the appeal shall be regarded as if no undertaking had been given. The justification shall be upon a notice of not less than five days. (Code, § 341.) The sureties are not compelled to justify to more than double the amount of the judgment proper. {Rich v. Beekman, 2 Code Rep. 63.) If the sureties proposed in an undertaking given on an appeal to the court of appeals fail to justify, when excepted to by the respondent, the appeal becomes a nullity. {Kelsey v. Campbell, 14 Ab. 368 ; S. C. 38 Barb. 238 ; explained, 40 Barb. 434 ; Chamberlain v. Demr.iei/. 13 Ab. 421 ; S. C. 22 How. Pr. 356.) When the sureties fail to justify, and the court, upon motion, refuses them permission to jus- tify, the iiotice of appeal, with all the proceedings connected therewith, fall to the ground, and the parties are remitted to the same condition they were in before the notice was given. (Id.) The party should except to the sureties, and tiot to the undertaking-. Thus, wheie the notice of exception was to the sufficiency of the undertaking, and not 793 Chap. 1.] PROCEEDINGS SUBSEQUENT TO TBE DECREE. 409 This deposit or bond is the same as is required upon appeals to the chancellor from a vice chancellor. (e) And the bond is to be approved of by the same officers and in the same manner as upon appeals of the latter description. But this difference is to be noticed. The method of approving bonds upon appeals to the court of errors, being regulated by statute, is a formality which the court cannot dispense ■with.(/) But as respects appeals from a vice chancellor, it is a provision by rule of court merely J and if any irregularity occurs it may be corrected, or may be waived by the adverse party.(^) The assistant register, or clerk, is not authorized to approve of a bond on an appeal entered with the register. It must be approved by (e) See ante, p. 401. (/) "Rogoi-s V. PHttei-soii, 4 Paige, 453. (g) Hawley v. Bennett, 5 Paige, 104. to the sufficiency of the sureties, it was held an insufficient notice. {Young v. Colhy, 2 Code Rep. 68.) Tlie ten days allowed, to give notice of exception, do not begin to run until the undertaking is filed, although the notice of appeal and a copy of the undertaking be served before the filing, ( Webster v. iStephens, 3 Ab. 227 ; S. C. 5 Dner, 682.) Whei'e a notice of appeal and a copy of the undertaking was served on the respond- ent August 1-', but the undertaking was not filed until September 13, a notice of exception, served September 16, was held to be in time. (Id.) The notice that the sureties intend to justify, when made by mail, should be double time, or ten days. (Dresser v. Brooks, 5 How. Pr. 75.) In order to secure the benefit of an exception to sureties, the respondent must attend on the officer at the appointed time. If he do not so attend, he will be deemed to have waived his exception. And this is so, although the sureties them- selves do not attend. {Ballard v. Ballard, 18 N. T. 491.) Rule 8 of the supreme court provides that in no case shall an attorney be surety on any undertakiag. This is a change in the former practice. On an application for justification of sureties, the merits of the appeal will not he considered. (Bradley v. Hall, 1 Cal. 199.) Where the sureties in an undertaking had been rejected, and an order grantccL directing the appellant to file a new undertaking, with new sureties, it was held thai the appellant must not only file the undertaking, but procure the justification of the sureties within the time mentioned in the order. (Chamberlain v. Bempsey, 13 Ab. 421 ; S. C. 22 How. Pr. 356.) No exception by the respondent, to the new sureties, is necessary, to call for their justification in such a case. The order provides for that, in effect. (Id.) In Hees v. Snell. (8 How. Pr. 185,) where sureties justified on notice to the respon- dent's attorney, who refused to attend the justification, because the hour for which the notice was given had gone by. (the delay being excused,) it was, on an affidavit of the respondent that the sureties were irresponsible, held that he was entitled to an order for the dismissal of the appeal, unless the apjjellant served a new notice of justification, and the sureties should be substituted, who should justify. 8. Filing' mulertakinq. 2 The undertaking must be filed with the clerk with whom the judgment or order appealed from was entered. (Code, § 343.) 9. Action upon undtrtakinc/.J Where the undertaking, given upon an appeal, has become forfeited by the affirmance and non-payment of the judgment appealed from, an action may be brought upon it without first obtaining leave to prosecute. Although the undertaking be filed with the clerk of the court, pursuant to the stat- ute, yet it is the property of the respondent, and he may enforce it without taking it from the files of the court. (New York Central Ins. Co. v. National Protettiun Ins. Co. 10 How. Pr. 344.) The above provisions of the Code, relative to security upon appeal to the court ot appeals, apply to appeals taken under subdivision 3 of section 11. (Code, § 343.) 793 410 PROCEEDINGS SUBSEQUENT TO THE DECREE. [Book II. a vice chancellor, injunction master, or the officer in whose office the appeal is to be enterecl.(/i) We have already seen, that in certain cases, if a party appealing from the decision of a vice chancellor, wishes to make the appeal operate as a stay of proceedings in the court below, he must give, in addition to the usual security for costs, a bond for the performance of the decree appealed from.(t) The same security is required, in similar cases, upon an appeal from the chancellor to the court for the correction of errors. It has been decided with respect to bonds of this character, that where the amount of the penalty is very large, the officer who approves the same, is authorized to receive more than two persons as sureties. And it is not necessary that each of the sureties should justify in double the penalty of the bond, provided the amounts in which they can each severally justify, are equal, in the aggregate, to two sureties who are worth double the penalty of the bond.(^-) But the approving officer is not authorized to split up the justification of the sureties in an ordinary appeal bond of $250, or in a bond the penalty of which is less than $1000.(0 111 the above case, the penalty of the bond was $38,500. Petition of appeal. A petition of appeal, addressed to the court foi the correction of errors must be filed in the office of the register, oi assistant register with whom the decree or order appealed from is entered, within eight days after the entering of the appeal in the court of chancery, or the appeal will be considered as waived, and that court may proceed, notwithstanding the appeal.()H) This petition, whether filed in the recess or during the sitting of the court, must pray that the decree or order appealed from may be sent to the court for the correction of errors and filed with the clerk thereof without delay.(m) lu this petition it is sufficient to set forth the decree, decretal or other order appealed from, without reciting the pleadings in the cause; and stating that the said decree, decretal or other order, or some part thereof (specifying what part or parts,) is erroneous, and that the same ought to be reversed or modified as the case may be.(o) The petition of appeal must be signed by one counsel. (j») 'So person is considered a party respondent in a petition of ajpcal (ft) Rogers v. Patterson, supra. (s) See ante, p. 388,391. (k) Clai'k V. Clark, 7 Paige, 607. ^l) Id. ib. (m) llule 9, court of errors. \n) Idem. (o) Kale 10. (p) Falton Bank v. Beach, 2 Paige, 188. 794 Chap. l.J PEOCEEDIKGS SVBSKQUEIST TO TBE DECREE. /\^\\ who is not named therein and called i^pon by the prayer thereof to answer the same.(g') Amendment of petition. The court of errors will permit a petition of appeal to be amended after it has been presented.(r) Thus if any error is discovered in the petition, or if the appellant is advised that some previous orders are so connected with the order appealed from that it will be impossible to do justice to his case without extending his appeal to these former orders,(s) or if there appears to be a defect of proper parties,(i!) he should apply for liberty to amend his appeal. To obtain leave to amend, a petition must be presented, of which four days'(?«) notice in writing is to be given to the opposite party; and it should be accompanied by a copy of the petition.(t;) Applications to amend the petition of appeal are not confined to the appellant, but may also be made by the respondent ; who is interested in seeing that all the proceedings are correct. But the respondent's petition should pray, " that the appellant may be ordered to amend his appeal in the particulars set forth, and to amend the respondent's copy."(?tf) If an appeal be amended after the respondent has put in an answer thereto, and it is considered necessary that a new answer should be put in to the amended appeal, he must obtain an order for leave to with- draw the former answer, and put in a new one, in which case the respondent will be entitled to costs.(a;) An order to this effect may be obtained on petition. But if the respondent do not voluntarily apply for such an order, and put in his answer, the appellant may proceed against him by a new peremptory order, and may get the cause set down ex parte.(?/) What papers to be annexed to pietition. The oflScer of the court of chancery with whom the petition of appeal is filed, must make and annex to the same the decree, decretal or other order appealed from, and such other order as may be required to be returned to this court, without any of the pleadings, proofs and exhibits in the cause.(2) In case the cause had been set down for hearing, and heard prior to the decree or order appealed from, then the officer must cause to be annexed also a copy of the minutes taken by the register or assistant (?) Gavflner v. Gnrcinev, 5 Paige, 170. (r) Palmer's Prac. 38. „ . __,, (s) Bonchier v. Dillon, 5 Bligh, (New Scries) 714. \t) Svdnev on Appeals, 93, 94. (u) See Kiile 31, conrt ot'eiToi-s. (») 3 Dan, 140. (w) W. ib. (x) 3 Dan. HO. iy) Palm. Pr. 42. (z) Knle 11. 795 412 PBOCEEDINGS SUBSEQUENT TO THE DECREE. [Book II. register as to what was read or used in the court below, or offered and overruled on objection, or admitted at the hearing.(a) Authenticated copies of the pleadings, proofs and exhibits, or such of them as may be relied on by either party, must be produced at the hearing, by the parties.(J) Filing petition, £c. The af)pellat]t must cause the petition of appeal, with the matter annexed, to be brought into the court for the correction of errors, and filed with the clerk thereof, by the day men- tioned in . such petition, or when duly prepared by the officer as directed. Or in default thereof, he will lose the benefit of such appeal, unless the court shall see cause to allow a further day for that pur- pose.(c) The phrase used in the rule last referred to, " by the day mentioned in such petition," has been continued in the last edition of the rules from rule seven of the former edition, without attending to the fact that under the present rule the petition prays that the decree, &c., may be sent to the court for the cori'ection of errors " without delay ; " whereas, under the former rule the petition was that the decree be sent to the court on the first day of the next session thereof, or if filed during the sitting of the court, that it be sent without delay. Orders to file petitions of appeal may be entered in vacation, by the clerk, with the like force and effect as if entered by direction of the court during its session. (iZ) Order to a7istver petition. Upon filing the petition of appeal, the appellant may obtain an order as of course, for the respondent to answer the petition in eight days after service of a copy thereof, or be precluded.(e) If the respondent does not comply with this order, he will be precluded from answering the petition of appeal, and the appel- lant may be heard ex parte, unless the respondent is an infant.(/) In the case of Irving v. Dunscomh,{g) it was held that an order to , answer a petition of appeal was irregular if entered before the petition, with the transcript annexed, was actually returned and filed in the court for the correction of errors. In that case the chancellor observed : " The petition of appeal is in the first instance to be filed in the court of chancery. If the court of errors is in session, it is returned here immediately, with the transcript (n) Idem. (6) Iilciii. (c) Rule 12. {(I) K'llo IB. (e) liniH l:J. I/) Trtcm. i.g\ ■-' WcMid. -306. 7% Cliap. 1.] PROCEEDINGS SUBSEQUENT TO THE DECREE. 41 ^ of the decree, and of the minutes of the hearing annexed thereto. But if filed in the recess, it is to be returned here on the iirst day of the next session. In the first case the court is possessed of tlie cause by relation, from the time when the petition was returnable during the session. And I apprehend it would be regular, under the 26th rule, to enter an order to answer during the recess of the court. In the latter case, however, this court is not possessed of the cause until the first day of the next session. But in neither case can an order to answer be regular until the petition of appeal, with the transcripts annexed, is actually returned and filed in this court." The present rule on the subject (the 16th) allows orders to answer petitions of appeal to be entered at any time by the clerk, of course, in the minutes of the court, upon the written request of the solicitor, attorney or counsel, at the peril of the party, with the like force and efiect as if entered by direction of the court during its session. A copy of the order to answer the petition must be served upon the solicitor for the respondent; or if none is employed, upon the respond- ent personally. (7^) It is not sufficient that the petition has been served. Service of the order to answer is necessary.(i) Withdrawing appeal.'] If the appellant finds it expedient to with- draw his appeal, he must obtain leave of the court to do it, by petition, of which four days' noi\ce,{]c) to the respondent's solicitoi", must be given, together with service of a copy of the petition. But the court will not grant the prayer of it without directing the payment of costs, nor, in some instances, without the consent of the respondent's solicitor^ For there may be cases in which it would be unjust to permit the appellant to withdraw his appeal, and thereby leave him at liberty, at a considerable distance of time afterwards, to bring a new appeal; which he might do, notwithstanding the withdrawing of his former appeal.(/) Waiver of appeal.] If a party proceeds to carry into effect the order or decree from which he has appealed, it will be considered a waiver or abandonment of the appeal.(»i) (28) Dismissing appeal.] If the respondent has reason to think the (ft) Watei-s V. Travis, 8 John. 566. (j) Id. ib. (A) SeernleSl. (Z) Palm. I'r. 43. (m) See ante. p. 393. (aS) A positive waiver of the right to appeal, by a .stipulation between the parties, before judgment in the subordinate courts, will be enforced in the appellate court, and the appeal dismissed. {loionsend v. Masterson, 4c., Stone Dressing Go. 15 If. T. .587.) 797 413 PROCEEDINGS SUBSEQUENT TO TBE DECREE. [Book II. appeal is irregularly filed, he should move to have it dismissed.(?i) (39) This motion should be made before the petition of appeal is answered; for if the respondent treats it as an effective appeal, by answering it, he will not be entitled to costs.(o) If the appeal is made after the time allowed for appealing, the objec- tion should be taken by motion to dismiss the same; and it cannot be taken at the hearing.(jj) Answering is a waiver of objections of a formal nature.(5') Ansv)er to petition of appeal.'] At any time after the filing of the petition in the court below, and without waiting for the actual return thereof to the clerk of this court, the respondent may put in his answer there to. (r) If an order is entered under the 13th rule, requiring the respondent to answer, and he fails to do so, the appellant, as already stated, may be heard ex parte; unless the respondent is an infant. And it seems the appellant may move for an order that the order or decree appealed from be reversed ; and for such further direction as grows out of such reversal.(s) The answer to the petition must be signed by counsel.(!!) Answers are of two kinds, general and special. The general answer, (which is the kind most commonly used,) admits the making of the decree or order complained of by the appel- lant; refers thereto when produced ; insists that the same is agreeable to equity; and prays that it may be affirmed; and that the petition of appeal may be dismissed, with costs. If the respondent brings a cross appeal, the answer should be quali- fied thus, " that the said decree, so far as the same is complained of by the said petition and appeal, is agreeable to equity,'' &c. An answer is special when particular facts are stated, or some specific matter is alleged, either upon the merits of the cause, or upon any defect in form in the appeal; such as that there are not proper parties; or that the decree or order appealed from did not become final, but remains under review or re-hearing; or that the date or purport of the (n) Palm. Pr. 44. (o) Norbniy v. Meade, ^ Bli^h, 574. (p) Per Satherland, J. in Disbrow v. Hensh.-iw, 8 Cowen, 353. (5) Rogers v. Crager, 3 John. 564. (r) Bnle9. (s) Chamberlain v. Fitch, 2 Cowen, 244. Waters v. Travis, 8 John. 6C6. (0 Fulton Bank v. Beach, 2 Paige, 188. (29) "WTiere it appear.? that no printed case has been served on the respondent's attorney, and the only papers before the court, besides the affidavit showing that fact, arc the case and exceptions in the court below, the court of appeals cannot proceed to judgment, but must dismiss the appeal. (Bigney v. Savory, 6 Ab., H". S. 284, n.) 798 Chap. 1.] PROCEEDINGS SUBSEQUENT TO THE DECREE. ^\^ decree or order is erroneously stated in the petition.(i«) But special answers have not, for a long time, been deemed necessary, or used in practice. In fact, the matters here noticed are more properly grounds for an application to the court to dismiss the appeal for irregularity.{r) Cross appeals.] Cross appeals are brought in a similar manner, and for the same reasons, as cross appeals in the court of chancery.(?y) A cross petition of appeal, is, in form, the same as an original appeal; "except that it must be entitled " The petition and cross appeal," &c., and should specify the particular parts of the decree or order of which the petitioner complains. It is presented and moved, and an order made upon it in the same manner as upon an origiiial appeal.(a;) By the practice of the house of lords, security for costs in cross appeals, is not necessary.(?/) The order to answer a cross appeal may be entered of course, it would seem, under the 16th rule ; and it may be served in the same manner as the order in an original appeal. But the respondent, in the cross appeal, being appellant in the original appeal, et e contra, by which both parties are in court, service of the order upon the solicitor of the respondent in the cross appeal is sufficient.(2) The answer to a cross appeal is in the same form with that to an origi- nal appeal ; except that the title is " The answer of A. B. to the petition and cross appeal to C. D." And that, towards the end, instead of saying "that the decree, &c. is just," &c. it should be "that the decree, in so far as is complained of by the said C. D., is just, and agreebly to equity," &c.(«) Case on appeal.] The 14th rule directs a case to be made and printed for the use of the court, and specifies what it shall contain. (30) («) 3 Dan. 137. (V) Id. ib. (M>) See ante, p. 397. (X) 3 Dan. 138. W Id. ib. (z) Pahn, Pi-. 34. (a) Id. ib. (80) Rule 5 of the court of appeals provides that in all calendar causes, a case shall be made by the appellant, which shall consist of a copy of the return of the clerk, and the reasons of the court below for its judgment, or an affidavit that the same cannot be procured. If the case is voluminous, an index of the pleadings, exhibits, depositions and other principal matters, shall be added. Every opinion in the cause, at special term, as well as at general term, relating to the question."! involved in the appeal, is included by the foregoing provisions. In Warren v. Warren, (22 How. Pr. 142,) where it appeared, on appeal from a judgment entered upon the report of a referee, that the referee wrote an opinion, in the cause, in which he assigned his reasons for the conclusions of law and fact con- tained in his decision, it was held that the opinion of the referee should have been printed with the case and presented to the court, by the appellant's counsel. Rule 8 of the court requires the appellant, at the commencement of the argument, to furnish a printed copy of the case to each of the judges, and to deliver nine other copies to the clerk. 799 415 PROCEEDTiYGS SUBSEQUEXT TO THE DECREE. [Book II. The respondent must make up this case and furnish the necessary copies tliereof, if he has, at or before the service of his answer to the petition of appeal, given a written notice to the adverse party, of his election to do so; otherwise, the appellant is to make it np and furnisli copies thei-eof (3) Although the above rule directs the depositions to be printed, yet it seems, from analogy to the practice of the house of lords in England, that the court may, if it thinks proper, hear evidence used in the court below, though not printed.(c) By the practice of the house of lords, the case must be signed by one or more of the counsel who attended at the hearing in the court below, or who are counsel upon the appeal. And in the case of The Fulton Banlc V. Beach,{d) the chancellor allowed a fee for two counsel to be taxed. Points.] Each party, at the commencement of the hearing, must deliver to the members of the court printed copies of the points he mtends to rely upon in argument, with a reference to the authorities on which he relies in support of the same.(e) (31) The points should be signed by counsel. Manner of printing_ case and points.] All cases and points prepared and served on the members of the court must be printed in royal octavo form, on sized paper, with a wide margin. (/) (32) Service of case.] The party who makes the case must, within thirty days after the cause is at issue in this conrt, (i. e., after the answer to the petition is filed,) serve upon the attorney or solicitor of the advei'se party, or on one of his counsel, or transmit to such attorney, &c., by (6) Enle 14. (c) Stackpool V. Stackpool, 4 Dow, ffi2. Palmer's Pr. 50. (d) 2 Paige, 188. (e> Enle U. (/) Rale 15. (31) Rule 8 of the court of appeals requires each party, at the commencement of the argument, to furnish to each of the judges a printed copy of the points on which he intends to rely, with a reference to the authorities which he intends to cite ; and to deliver nine other copies to the clerk, and three copies to the coun- sel of the adverse party. Under the term "points" are embraced the heads of an argument, together with the authorities cited, but not the argument at length. (Gfray v. iSckenck, 3 How. Pr. 231.) Exceptions not noticed in the points, nor argued, are to he deemed waived. (Sutherland v. -Rose, 47 Barb. 144, 150 ; Cuming.s v. Morris, 3 Bosw. 560.) Eule 9 directs that in all cases, each party shall briefly state, upon his printed points, in a separate form, the leading facts which he deems established, ^fith a reference to the folios where the evidence of such facts may be found. (32) Rule 6 of the court of appeals prescribes the style and manner in which the cases and points and other papers furnished the court in calendar causes, shall be printed, the quality of the paper, size of the page, kind of type, &c. 800 Chap. 1.] PROCEEDINGS SUBSEQUEXr TO THE DECREE. ^\Q mail, directed to him at his place of residence, three printed copies of the case. Otherwise, the party who ought to have served such case shall not have the right to bring his cause on to be heard, without the consent of the adverse party, until after the expiration of thirty days after such copies of the case shall have been served.(^) (33) Solicitors, counsel, and guardians ad litem on appeal.'] The solicitors and guardians ad litem of the respective parties in the court below, arc to be deemed the solicitors and guardians ad litem of the same parties respectively, in the court of errors, until others are retained or ap- pointed, and notice thereof served on the other party.(/t) (34) No member of the court of errors shall, as solicitor or counsel, be concerned in, or argue, any cause in that court, unless he was, without reference to such court, actually retained and emi^loyed in the cause in the court below, before the decree below was rendered.(i) But this rule does not extend to causes in which any member of the court was actually retained as solicitor or counsel previous to his becoming a member thereof.(^) Notice of argument.] All causes which have been put at issue in the court of errors (by the filing of an answer to the petition of appeal,) may be brought on to argument upon the notice of either party.(/) This notice must be served at least fourteen days before the day on gi Idem. (A) RiiJe 17. (j) Enle 29. {/;) Idem. {t) Rale 18. (33) Rule 7 of the court of appeals requires the appellant, within forty days after the appeal is perfected, to serve three printed copies of the case on the attorney of the adverse party. If he fails to do so the respondent may, by notice in writing, require the service of such copies within ten days after service of the notice, and if the copies be not served, in pursaance of such notice, the appellant shall be deemed to have waived the appeal. And on an affidavit proving the default, and the service of such notice, the respondent may enter an order with the clerk, dismissing the complaint for want of prosecution, with costs ; and the court below may thereupon proceed as though there had been no appeal. The respondent is at liberty to dismiss an appeal by an ex parte order, under this rule, only where there is a total failure to serve ami case, witliin the requiied time. If the respondent desires that an imperfect case served should be amended, he must apply to the court by motion, upon notice. (Bouers v. Tallmadge. 20 How. Pr. 616; S. C. 23N. Y. 166.) (34) Rule 4 of the court of appeals is the same as the above, substantially. An appeal is in the nature of a new action brought by the party appealing, ami may be prosecuted by a new attorney, without substitution. (Pratt v. Allen, 19 How. Pr. 450 ; McLaren v. Charrier, 5 Paige, 530. See Cook v. Dickerson, 1 Duer, 679 ; Thorp v. Fowler, 5 Cow. 446.) Under a general retainer, an attorney is employed to prosecute or defend a suit to a final iudgmeni ; and when this end is reached, his work under the general retainer is done. (Adains v. Fort Plain Bank, 23 How. Pr. 45. See Mygatt v. Wilcox, 1 Lans. 55-58.) Vol. I.— 51 801 4] 6 PROCEEDINGS SUBSEQUENT TO THE DECREE. [Book 11. which it is intended to bring on the same, and which must be some day on which the court will be in session.(?;i) A copy of such notice must also be furnished to the clerk of the court at least four days before the day appointed for the argument.(?«) List of causes, or calendar.] The clerk must make a list of the causes thus noticed, arranging them in the order in which the answer to the petition was filed. And when the court is ready to proceed to the hearing of causes, the same are to be called in the order in which they stand on such list.(o) (35) A cause cannot be entered on this list or calendar until after the petition of appeal and the respondent's answer thereto have been filed.(^) Hearmg-I (36) Not more than one counsel will be allowed to open the argument, nor more than two to answer; and no moi'e than one {m) Idem. (71) Idem, (o) Idem. (;)) Woodcock T. Bennett, 20 John. 501. (35) Appeals in non-enumerated motions, as well as others, mitst, under the rules of the court, be placed on the calendar, otherwise the court will not hear argu- ment upon them, even by consent of counsel. But it may, for good cause, allow them to be submitted upon the points, without argument. {Gregory v. Cryder, 9 Ab., N. S. 89.) Section 13 of the Code allows the court of appeals, by general rules, to provide what causes shall have a preference on the calendar, and provides that on a second and each subsequent appeal to that court, or when an appeal has once been dis- missed, for defect or iiTegularity, the cause shall be placed upon the calendar as of the time of filing the first appeal, and may be noticed and put on the calendar for any succeeding term ; and for a preference of actions or proceedings in which the people of the state, or any state officer, or any board of state oflficers is or are sole plaintiff or defendant, &c. Rule 20 of the court of appeals relates to preferred causes, and classifies them, and prescribes their place on the calendar. Rule 17 directs as to the call of the calendar, exchanging one cause for another, striking causes from the calendflr, &c. (86) An appeal to the court of appeals from any order affecting a substantial right, arising upon any interlocutory jiroceeding, or upon any question of practice in the action, may be heard as a motion, and noticed for hearing for any regular motion day of the court. (Code § 11, sub. 4.) Rule 23 of the court of appeals provides that either party may bring on the argu- ment, on a notice to be served upon the opposite party ; a copy of which notice, specifying the judicial district in which the cause originated, shall be filed with the clerk, at least fifteen days before the commencement of the term for which the case is noticed ; which notice, (except in criminal cases,) shall be for the first day of the term. And rule 22 directs that in all cases where the notice of argument is filed with the clerk, there should be filed with the same, due proof or admission of the .service of argument upon the adverse party ; and the clerk is directed not to enter on the calendar any cause in which proof of the service of said notice is not filed with him. Rule 21 of the court of appeals provides that judgments of reversal by default will not be allowed. When a cause is called, in its order on the calendar, it must be either argued, submitted or passed. If the appellant fails to appear and furnish the court with the papers required, and argue or submit his case, judgment of affir- 803 Chap. 1.] PROCEEDINGS SUBSEQUENT TO THE DECREE. ^\^ counsel shall reply or close, except in special cases where there are dis- tinct parties on the same side, having distinct interests in question. (g) If the parties prefer, they may submit a printed instead of an oral argument.(r) If the reasons of the court below are not annexed to the cases deliv- ered, the cause will not be heard unless it appears, by afBdavit, that application has been made therefor, and that the same could not be obtaiued.(i) When any preliminaiy question, not made in the court below, and not involving the merits of the cause, is presented for argument, it will (g) Rnlc 30. (»■) Kiile 2U. (s) Enle I'J. mance by default will be ordered, on motion of the respondent. If the appellant, only, appears, he may either argue or submit the case, and it will be determined upon the papers submitted by him. If both parties appear, either or both may be heard orally, or submit the case on printed briefs. This rule was not intended to impose upon the judges the duty of acting as counsel foi' the party who does not appear, to prosecute or defend, but to save to parties acting in good faith a further opportunity to present a printed brief, and save the court the loss of time formerly consumed in hearing motions to open default. {Ma- hiv V. Carmwi, 38 N. T. 25 ; S. C. 5 Trans. Ap. 25.) Rule 8 provides for the furnishing to the court and clerk, at the commencement of the argument, printed copies of the case and of the points, with a reference to the authorities, and all papers used in the court below, &c. Rule 9 directs that in all cases, each party shall briefly state, upon his printed points, in a separate form, the leading facts which he deems established, with a reference to the folios where the evidence of such facts may be found, and the court will not hear an extended discussion upon any mere question of fact. Rule 16 provides that in the argument of calendar causes and motions, only one counsel will be heard on each side, unless the court shall otherwise direct. And rule 19 provides that in the argument of a cause, not more than two hours shall be occupied by each counsel, except by the express permission of the court. Rule 12 allows causes which have not been exchanged to be submitted, at any time in term, on printed arguments. Exchanged causes cannot be submitted until reached upon the calendar. Rule 13 directs as to the hearing of motions. Rule 17 directs as to the call of the calendar, exchanging one cause for another, striking causes from the calendar, &c. It has been held that it is the right of parties who have interests dependent on the decision of the court, to claim that their causes shall be heard when reached in their regular order on the calendar. If the opposite party is unprepared, he is at liberty, under the rule, to submit a printed argument. The rules prescribe the only cases in which an argument can be postponed. {Bank of Salina v. Alvord, 32 N. T. 684.) That the counsel for one of the parties is engaged as counsel, in another court, is not a sufficient ground for putting ofif the argument of a cause. (Starr V. Benedict, 19 John. 4-55.) Rule 18 prescribes the duty of the clerk, as to exchanged causes, and the calendar. Rule 20 relates to preferred causes, and classifies them, and prescribes their place on the calendar. The burden is upon the appellant to .show that the granting of a new trial by the general term was erroneous in matter of law. Where the return shows that ques- tions of fact were legitimately before the general term, and the evidence was .such that the court may have reversed the judgment upon the facts, an appeal to the court of appeals will be dismissed. ( Wright v. Hunter; 46 N. Y. 409.) 803 417 PROCEEDINGS SUBSEQUer^T TO THE DECREE. [Book II. be first argued and passed upon by the court; and tlie argument upon the merits will be postponed until such preliminary question shall have b en disposed of, unless the court shall otherwise direct.(;) Under this rule, it is the practice, when a cause is called, to raise any ([iiestion as to the regularity of the appeal, the time of its being filed, neglect of any requisition of the statute or rules, or as to the character of the order or decree appealed from. (it) It is very common, however, to make a motion to dismiss the appeal on any regular motion day after the same is entered.(v) And in Rotoley v. Van Bentliuysen,{io) Bronson, J. considers this the regular course. It seems, however, that the court of errors will not, under any cir- cumstances, previous to the hearing of an appeal, modify or dissolve an injunction granted by the court below.(a;) Default of parties on the hearing.] The court will not hear an ex parte argument in favor of the affirmance of a decree.(?/) But if the cause has been regularly noticed for argument and placed on the calen- dar by the respondent, and the appellant does not appear to argue on his part, or does not furnish the printed cases required by the 14th rule, the decree will be affirmed with costs, together with sujcli damages as the respondent would have been entitled to if the decree had been affirmed on argument.(2) (37) Whenever any matter is moved for hearing, whether upon the merits, or upon a preliminary or interlocutory question, pursuant to notice, and the party whose right it is to appear and oppose, shall make default, the court will proceed and hear the matter ex parte. And no decision will be given upon the mere default of appearance, except as provided in the 21st rule. But where the respondent has elected to make the case, if he does not appear and furnish the cases when the cause is reached on the calendar, the adverse party may have the default entered, and may then furnish the cases, and submit or argue the cause ex parte, out of its place on the calendar, at any time thereafter.(a) Abatement of suit, Sc] Where a party in whose favor a decree or order has been made, dies after the entry thereof and previous to the service of notice of the same, and the opposite party is desirous to appeal (/) Rule 24. (M) 2 Hoir. Pr. 46. («) Id. ib. (w) 16 Wend. 369. (a) See Ins. Co. v. Ward, 20 Wend. 588. {y) Rnle21. (2) Idem. (a) Enlc 22. (37) Rule 21 of the court of appeals is substantially the same as the above. 804 Chap. l.J PBOCEEDIXGS SUBSEQCEXT TO THE DECREE. 41g to the court of errors, his course is to defer the prosecution of the aiDpeal until the suit has been revived in the court of chancery in favor of the representatives of the deceased, and due notice given him of the decree or order by the solicitor of the substituted paj-ties. Notice given by the solicitor of the party deceased may be regarded as a nullity.(J) So where there is an abatement after notice of appeal and before the peti- tion of appeal is presented, it seems the practice is to revive the cause in the court below, by bringing in the representatives of the deceased party.(c) But where either party dies after the appeal is presented in the court of errors, the practice is to bring in the proper parties there.(t?) It is not necessary in such case to revive the cause in the court of chancer}*, as was done in Wilson v. Hamilton, 9 John. 442. (e) It seems tiiat if a party in whose favor the decree was made should die after notice of the decree given to the opposite party, and within tlie fifteen days allowed for appealing, au appeal would be held valid if tlie petition of appeal and the bond were dated as of a day anterior to the death of the deceased party.(/) But where an appeal was made after a suit abated, and before a revival in the court below, and a bond was executed to the representatives of the deceased party, it was held that the bond was void and the appeal irregular ; and the appeal was accord- ingly dismissed.(^) Where a decree is made in the court of errors against a_ deceased party, after his death, the suit must be revived in the court of chancery, against his representatives, before any proceedings can be had, to carry the decree into efFect.(7i) If the appellant dies pending the appeal, the suit must be i-evived in the name of his heir or representative. A petition for that purpose should be presented stating the appeal, and the abatement, and the transmission of the right to the petitioner.(t) So much of the nature of the suit should be stated in this petition as to show that the petitioner holds the proper legal relation to sustain it, such as heir or executor.(^) This petition is ex parte, and the order made upon it is an order of course.(Z) "Whether a respondent can apply, upon the death of the appellant, (b) Anderson t. Anderson, 20 Wend. 585. (c) Id. ib. Rogers T. Patterson, i Paige 409. \d) Id. ib. Sydney on Ap. 110. Palm. Pr. 80. Urrpihart, 82. Rogers v. Patterson, supra. (e) Anderson v. Andereon, supra. (/) Id. ib. Ill) Id. ib. (ft) Koger? T. Pattetson, 4 Paige, 409. (i) 2Hoff. Pr. 40. (*1 Id. ib. (Z) Byne v. Potter, 5 Vcs. 305. 805 419 raOCEEDINGS SUBSEQUENT TO THE DECREE. [Book II. for an order that the appeal be i-evived against his representatives, is a point not settled by any decisions of the court of errors or by any rule of the court. By the practice of the court of chancery, however, if one of several complainants dies, the survivors may elect to proceed, or not; and on the application of a defendant, the court will direct that if the suit is not revived within a limited time, it be dismissed.(m) If the respondent dies pending the appeal, his heir at law or personal representative may petition to be substituted in his place; or the appel- lant may claim a similar order.(7i) Where a party to an appeal died after issue was joined thereon, but before the cause was argued, and the cause was afterwards heard and decided and remitted to the court of chancery by the court of errors in ignorance of the death of the party, it was held that the court below must carry the decree into effect though it was not entered as of a day previous to the party's death; and that the suit must be revived below, and carried on as if the party had died subsequent to the decree.(o) If the heir of the deceased party who applies for a revivor is an infant, hia prochien amy or guardian must unite in the petition. (^) Evidence upon appeal.'] The case required by the 14th rule must contain such of the depositions, aflfldavits, &c., as were read or used on the hearing of the cause or matter before the chancellor, and upon which the decree or order appealed from was fonnded.(f/) This excludes, by implication, any other evidence. Indeed, the rule is well settled, that no evidence can be received in the appellate court which was not laid before the court below. Nor can any evidence which was received below, be objected to above, unless the admission of improper evidence be among the points of appeal.(r) It may be mentioned, also, that where evidence has been rejected below which the court of errors thinks ought to have been received, the usual course is to remit the cause to the court of chancery. It seems, ho*ever, that before doing this, the court of errors Avill look at the rejected evidence, in order to see whether, if it were admitted, it would affect the opinion of the appellate court, in forming its judg- ment.(s) Prosecuting appeal in forma pauperis.'] An appeal may be prose- cuted by a party in forma pauperis, in a proper case. To obtain leave (m) Pell V. Coon, Hopt. 4.')0. liCggett v. Dubois, 2 Paige, 211. (n) Palmer's Pr. 80. Sidney, 112. Urqn. 84. (o) Rosers v. Patterson, 4 Paige, 409. Bank of the U. S. v. Weisigor, 2 Peters, 481. ip) P.nlm. Pr. 81. (?) See IJnle 14, Court of En-ors, (?•) Ellen V. Earl Unto, 1 liro. P. C. Toml. ed. 465. Balsh v. Moore, 3 id. 546. Button v. I'rine, Prer. in Cli. 212. 3 Dan. 1P4. (s) McCa'io V. lliisscy, 5 Bligl] (Xuw Series), 715, 729. 806 Chap. 1.] FBOCEEDINGS SUBSEQUENT TO THE DMCBEE. 420 to do SO, a petition must be presented, accompanied by an affidavit of poverty.(^) By the English practice, this affidavit states that the petitioner is not worth the sum of five pounds, wearing apparel and tlie matters of the cause only excepted.(M) Decisional -^^ ^^^^ conclusion of the argument of the appeal, the presiding officer of the court states the question — " Shall this decree be reversed ?" And the court proceeds to decide the question, after hear- ing the opinions of such of the members of the court as wish to state the reasons for their votes. But if any member wishes further time to examine the questions to be decided, the court will postpone the decision. (d) If a majority of the court do not vote for a reversal, the decree is of course affirmed.(w) When the cause presents distinct questions, they are to be decided separately.(a;) The pi'esident of the senate is entitled to vote upon a question, and express an opinion, equally with the other members. This rule also applies to a pi-esident pro tempore.{y) If the court is equally divided, the deeree will be affirmed. Such affirmance cannot, however, be considered as settling the law in the court for the correction of eri'ors, except so far as relates to the par- ticular ea.use.(z) Where a decree is affirmed in this manner, it ought to be without prejudice to the legal rights of the parties.(«) A decree may be affirmed or reversed if ten members concur in the decision; provided there be present at the decision nineteen members; and this, although the nine do not vote, or have not heard the argu- ment.(5) Decree.] If the decree to be entered is simple, such as a mere rever- sal or affirmance, the clerk draws it up. In very special cases some member of the court frequently prepares the decree. This was done in Hawley v. James, (16 Wend. 61.) (c) If counsel attend, they settle the decree among themselves, if they can agree as to its provisions. If not, the court will settle it after hearing the drafts, on the last day of tlie 8ession.(rf) («) 2 Hoff. Pr. 4B. («) Urqnliiirt, 84. (1)) Rule 25. (!0) Bridge v. Johnson, 5 W'eniX. 371. (x) Knle^ 2H. (.1/) CiiseoftlieI.ient.Gov 2 Wond. 215. (z) Briilpre v. Jolinson, 5 Wend. 371. («) Micrtin v. Wolcli, 4 Hhinl'. GO. (6) McFavlon v. Crary, 6 Wend. 325. (c) 2 IloffPi-. 51. (d) 2 Hoff. rr. 51. See l"idm. Pr. 69. 807 421 PROCEEmNGS SUBSEQUENT TO THE DECREE. [Book II. If a party to the record has died between the hearing and decision, the decree may be entered nunc pro tunc as of the day of the hearing.(e) Gosts.^ The costs which are awarded by the court for the correction of errors, upon appeal, are to be taxed by a taxing master of the court of chancery; and when thus taxed, the payment thereof is to be enforced by the court of chancery according to the practice of that conrt.(/) It has been held, however, that the costs need not be inserted in the remittitur, before it is sent down. It may be done after it is filed in the court below.(^) Upon an afBrmance of a decree, costs are allowed as of course. The costs in the court for the correction of errors, are not regulated by statute but by the rule prevailing in the English courts. Whenever the merits of the case are disposed of by the decree of the court for the correction of errors, it may adjudge as to the costs.(7i) (38) Upon the reversal of a decree costs are not allowed.(?') Where there were two appeals from two distinct orders of the chan- cellor, and two cases printed, the court for the correction of errors directed that no allowance should be made for any part of the second case which was contained in the case made on the first appeal. It also consolidated the orders of afiSrmance, and made but one decree of affirmance as to both appeals.(^) (e) Mnrray v. Blatchford, cited 2 Hoff. Pr. 51. Ante, p. In the case of Van VecJtten v. Van Vechten, after the appeal to the conrt for the correction of errors was noticed for argnnient, it being expected that J. V., one of the parties, wonid die before the cause could be argued, and the parties being willing to submit the same on printed arguments, Mr. Ehoades, on the INth of January, 1841, obtained au order of the appellate court, that the canse be entered in the clerk's minntes as submitted on that day. On the next day J. V. died, and on tlie 28th of December therealler, the decree of the chancellor was affirmed with costs. A special order was thereupon obtained, that the decree of afflrraance be entered mmc pro tunc as of January 19th, 1841. And on talking down the remittitur, an order was obtained, January 24th, 1842, from tlie chancellor, that the decree to be entered on filing the remittitur be entered and the remittitur filed nunc pro tunc as of January 19lh, 1841. These orders saved the expense and tlclay of reviving the cause in both courts. ( riRule 28. (o) Leggy. Overbagh, 4 Wend. 190. Ift) MniTay v. Blatchford, 2 Wend. 224. (j) Id. ib. (i) Fulton Bank v. Beach, 2 Paige, 186. (38) Costs and damages, in cocrt of appeals. On an appeal from an order, the costs in the conrt of appeals are the same as on appeal from a judgment. {Tauton v. Groh, 9 Ab.. N. S. 453 ; WhiU v. Anthony. 23 N. T. 164.) Where costs are given, in the court of appeals, on the decision of an appeal, whether from a judgment or an order, general costs must be allowed, and not motion costs merely. (Hall v. E^nmons, 40 N. T. 137.) In Maker v. Carman, (38 N. T. 25 ; S. C. 5 Trans. Ap. 2.5.) where the appeal was evidently taken for delay, the judgment was affirmed, with ten per cent, damages. And whenever the court can see no merits in an appeal which comes before it, the judgment will be aflBrmed, with ten per cent, damages. (Wright v. Saunders, Z& How. 186 ; S. C. 3 Keves, S23 ; 1 Trans. Ap. 263.) In S!?awv. Smith, (5 Ab.,N. S. 129; S. C. 1 Trans. Ap. 238 ; 8 Keyes, 306,) upon affirmance of a judgment, in consideration of the hardship resulting to the appellant through an omission to make his exceptions properly, the court awarded no damages to the respondent. 808 Chap. 1.] PROCEEDINGS SVBSEQUENT TO THE DECREE. 422 Re-hearing appeals.] In February, 1839, the court for the correction of errors, adopted the following order, "which was intended to settle the question as to all future applications for the re-hearing of causes, after there had been a final judgment or decree upon the merits, either upon an appeal or a writ of error : — " Ordered, that this court will not order a re-argument, nor will it re-consider any case, on the ground that it was decided on an equal division of the members of the court, or for any other reason, after the cause has been decided here, upon the merits."(0 (39) And in the case of The People v. The Mayor, &c. of New Tork,[m) that court decided that it would not grant a re-hearing after pronoun- cing final judgment on the merits of a case, and after the judgment had been drawn up, settled, and entered of record, although the members of the court were equally divided on the question of reversal. It seems, however, that if, in settling the final judgment before it is entered of record, difficulties occur as to the decree or rule to be entered, new points may be argued or old points re-argued, if the court deem it expedient; and that even after the entry of the judgment, before the record is remitted, mere clerical errors and defects in form may be corrected, or even a new clause added, to carry out the judg- ment of the court.(«) Remittitur.] The statute directs that when an appeal shall have been heard and determined, all the proceedings, together with the (I) See 25 Wend. 257, per Walworth, chan. (m) 25 Wend. 252. (n) Id. ib. (39) Rehearing in court of appeais. The Code (§ 14) directs that if five judges do not concur in pronouncing a judg- ment, the case shall be reheard. But no more than two rehearings shall he had ; and if on the second rehearing five judges do not concur, the judgment shall be affirmed. "When a rehearing of the case is ordered, the judges shall file the opinions read bj' them with the reporter of the court, but such opinions shall not be published. No person, other than the judges of the court, the reporter, or the counsel or attorney of either of the parties, shall have access to, or a copy of, the said opinions, but such counsel or attorney may have access to, and a copy thereof. This section restores the common law as it was understood and acted upon, in this state, previous to the Code. {Mason v. Jones, 3 N. Y. 375 ; S. C. 5 How. Pr. 118 ; 3 Code R. 164.) When judgment is pronounced in open court, without dissent by any of the judges, a rehearing will not be allowed because in consultation the judges were equally divided. {Mason v. Jones, supra.) An affidavit of a party that he designs to apply for a re-argument in the court of appeals will not be sufficient to induce the court below to stay the filing of the remittitur for that purpose ; but an order from a justice of the appellate court that the adverse paity show cause why a re-argument should not be had, &c., will be conformed to by the court below. (Janri.i v. Shav; 16 Ah. 415.) The act of April 14, 1870, (Laws, ch. 203,) relating to the court of appeals, &c.. provides that no existing law which relates to the rehearing of causes in the court of appeals shall be in force. (§1.) 809 422 PROCEEDINGS SUBSEQUENT TO THE DECREE. [Book II. decree or order therein, and all things concerning the same, shall be remitted to the court of chancery, where such further proceedings shall be liad as may be necessary to carry it into effect.(o) (40) (o) 2 R. S. 167, } 29 (orig. } 28.) (40) The Code (§ 12) directs that the judgment of the court of appeals shall be remitted to the court below, to be enforced according to law. Rule 14 of the court of appeals requires the remittitur to contain a copy of the judgment of that court, and the return made by the court below ; and that it be sealed with the seal, and signed by the clerk of the court. Rule 15 provides that when a decree or order shall be affirmed by the default of the appellant, the remittitur sjiall not be sent to the court below, unless the court of appeals shall otherwise direct, until ten days after notice of the affirmance shall have been served on the attorney of the appellant. Service of the notice shall be proved to the clerk by affidavit, or by the written admission of the attorney on whom it was served. After a cause has once been remitted, the court of appeals loses all jurisdiction tliereof IJhe only remedy is bv a new appeal. {Dresser v. Brooks, 4 How. Pr. 207 ; S. C. 2 N. Y. 559 ; 2 Code Rep. 130 ; Lawrence v. Bank of the Bep-uUic, 6 Rob. 497.) After the remittitur has issued from the court, under its seal, the court below has jurisdction of the cause, though the remittitur is not actually filed with the clerk of the latter court. {Juclson v. ffray, 17 How Pr. 289.) On the dismissal of an appeal, a remittitur is the regular process to restore the cause to the court below to be enforced. {Langley v. Warner, 2 Code R. 97.) "Where the judgment of the court below is reversed by default in not joining in error, the remittitur should not be sent to the court below until ten days have elapsed. {Lt,ne V. Ward, 1 N. Y. 531.) This rule of the court (15) requiring a delay of ten days after service of notice of the default, before sending out the remittitur, was intended to protect the party against surprise, and to give him ample time to make his application for relief, or to obtain an order staying proceedings to enable him to do so. (Latso?i v. Wal- lace, 9 How. Pr. 334.) The judgment of the court of appeals is to be sent back to the court below, there to be enforced. It must therefore be brought formally to the notice of the latter court, and be made one of its judgments. Until the judgment of the court of appeals is incorporated in its records, no proceedings can be instituted to enforce its direc- tions. {Seaim-dv. Morgan, 17 How. Pr. 394 ; S. C. 4 Ab., N. S. 249; 35 How 487.) An order of the court below is essential. The filing of the remittitur with the clerk, and his adjustment of the costs thereon, is not sufficient. (Id.) As to the form of judgment on a remittitur, see Union Hubber Co. v. Babcock, 1 Ab. 262, 267 n. ; S. C. 4 Duer, 620. The dismissal of an appeal is a judgment, within the meaning of the section authorizing a remittitur to the inferior court. (4 How Pr. 184 ; Laiiglei/v. Warner, 2 Code R. 97.) But where no return has been filed, and the appeal' is dismissed for that cause, alone, there can be no remittitur. {Tlioiiqjson v. Blanchard, 4 How. Pr. 210. 211 n. ; S. C. 2 N. Y. 561 ; 2 Code R. 138.) After an appeal is dismissed because of a defective return, an objection that a remmittitur could not be granted will be of no avail. (Doty v. Broimi. 4 How. Pr. 429.) Filing the remittitur is not absolutely essential to give the court below jurisdiction, so as to go on and re-try the cause, where a, new trial is ordered by the appellate court., It seems that if the remittitur is in the hands of the prevailing party, it will be sufficient, in such a case. (Jfudson v. Grrati, 17 How. Pr. 289.) If ah order dismissing an appeal be irregularly entered, or obtained on false or garbled affidavits, the court of appeals has the power to vacate its order, although the remittitur has been filed in the court below. (Newton v. Harris, 8 Barb. 306 ; S. C. 1 Code Rep., N. S. 191.) But until such order of the appellate court is revoked, the court below is bound by it. (Id.) After the remittitur is actually filed, the remedy, in case of errors in the judgment, or in cases requiring amendment, must be sought in the court below, or by a new appeal. (Laiorence v. Bank of the Republic, 6 Rob. 497 ; Newton v. Harris, 1 Code Rep., N. S. 181 ; S. C. 8 Barb. .806 ; Burkle v. Luce, 1 N. Y. 239 ; S. C. 3 How 810 Chap. 1.] PROCEEDINGS SVBSKQVEKT TO THE DECREE. 403 The remittitur (by means of which the proceedings are transmitted to the court below, after the decree is made in the court for the cor- rection of errors,) contains a copy of the decree or order of the court for the correction of errors, annexed to the petition of appeal and the matters thereto attached, as brought into the appellate court, under the seal of that court, and signed by the clerk thereof (^) When the decree is affirmed or reversed by the default of either party, the remit- titur must not be sent to the court below, until the expiration of ten days thereafter, unless the court for the correction of errors shall specially direct otherwise.(5') The remittitur is made out by the clerk of the court for the correc- tion of errors. General rule as to practice on appeals to tlie court for the correction of errors.] (41) In all cases not expressly provided for by rule, the practice of the court for the correction of errors on appeals, shall be conformable to that of the house of lords in England, when sitting as a court of appeals.(r) Proceedings in court below.} In some cases the appellate court, Instead of affirming or reversing the decree appealed from, will give directions to the court below to rectify the same. In such cases the order of the appellate court must be made a rule or order of the court (p) Rnle 27. (g) Rule 23. (r) Knle 34 of Coart for the Correction of Errors. Pr. 236 ; Martin v. Wilson, 1 N. Y. 240.) But if the order entered and contained in the remittitur does not correctly embody and state the judgment pronounced by the appellate court, it will be amended on motion to that court, notwithstanding the remittitur has been filed below. (Palmer v. Lavyrence, 5 N. T. 465,) Upon filing the remittitur in the court below, all that can be done by that court is to formally adopt the judgment of tlie court of appeals as its own, (Macgregor v. Buell, 17 Ab. 31 ; S.C.I Keyes, 153,) and take such measures as may be neces- sary to carry the determination of the appellate court into effect. (Id.) After the court below has obtained full possession of the remittitur (by filing,) and has made the judgment of the appellate court its own, it has not the power to grant an order sending the judgment back to the appellate court for correction of errors. (Vermilye v. Seldon, 6 How. Pr. 41 ; S. C. 3 Sandf. 683.) Restitution will not be ordered by the court below, unless the remittitur contains a direction to that eff'ect, (Young v. Brush. 18 Ab. 171 ; S. C. 28 N. T. 607 ;) or unless upon notice to the party to be affected by such order. (Id.) An affidavit of a party that he designs to apply for a re-argument, in the court of appeals, will not be sufficient to induce the court below to stay the filing of the remittitur for that purpose. But an order from a justice of the appellate court that the adverse party show cause why a re-argument should not be had, etc., will be conformed to by the court below. (Farms v. Sfiav; 16 Ab. 415.) • (41) The various details of practice on appeals to the court of appeals, so far as the practice depends upon the power of the court itself to regulate the same, are prescribed by the general rules of the court, established in July, 1870, with the amendnients since made. To these rules it is only necessary to refer, in this place. They wrll of course be consulted by the practitioner. 811 423 PROCEEDINGS SUBSEQUENT TO THE DECREE. [Book II. of cliancery.(s) So also must it be if the appellate court reverses tbp. decree; because it may otherwise be carried into execution. In Eng- land where a decree is affirmed by consent, an application to make the decree a rule or order of the court below will not be granted. (^) Nor indeed can it be necessary there, under any circumstances, where a decree is simply affirmed; unless the proceedings under it have been suspended pending the appeal.(?t) An order to make a decree of the appellate court a rule or order of the court of chancery, may, by the English practice, be obtained of course, on motion, upon production of the decree signed by the clerk of the appellate court.(«) But in Rogers v. Hosach, (iv) it was declared to be the settled prac- tice, here, to require the remittitur from the court for the correction of errors to be presented to the chancellor previous to its being filed; to enable him to see whetlier any thing special is required which entitles the adverse party to be hoard before the order of the court for the correc- tion of errors can be fully complied with ; so that the proper order may be entered on such remittitur, under the special direction of the court. To prevent any unnecessary delay, where the chancellor is required by the decree of the appellate court to give special directions, as to which both parties have a right to be heard, the party to whom the remittitur is delivered, instead of making an ex parte application in the first instance, may give notice to the adverse party for some regular motion day, either in term or vacation, that he will file the remittitur and ask for such other order or decree thereon as he may think hitnself entitled to, or as the court may deem proper, to carry into effect the decree or order of the court for the correction of errors.(a;) The order granted by this court, upon filing the remittitur is, "that the decree of the court for the correction of errors be, and the same is hereby made a decree of this court," &c. &c. SECTION VIII. APPEAL TO THE CHAS^CELLOR FROII A SURUOGATE. WJien an appeal lies.] The revised statutes authorize appeals to be made from the orders, decrees, and sentences of surrogates in all cases, [s) Attorney Gen. \ . Scott, 1 Vcs. 419. [t) U. ib. (M) 3T)iin. 147. (?•) I'l. US. 3 liar. ClL. I'v. ail. Sciiton on Dcerces, 5S2, ,i. 2. Hand's l"r 124. ()") 7 I'aige, 1(18. ^x^l Irl. ib. 812 Chap. 1.] PROCBhlDlNGS SUBSEQVEKT TO THE DECREE. 424 to the court of cliancery, excep*^. where provision lias been made for appeals to circuit judges, and except appeals from orders concerning any admeasurement of dower.(;y) (42) The chancellor has decided that an appeal does not lie directly to him from the sentence or decree of a surrogate confirming the probate of a will of personal property, upon allegations against the validity of the will filed in the surrogate's office pursuant to the directions of the 31st section of the article of the revised statutes relatives to wills of personal property, &c. (3 R. b'. 61,) but that, under the 35th and 55tli sections of the title relative to wills and testaments, {id. 62, 66,) the party complaining of the sentence or decree of the surrogate must appeal, in the first place, to the circuit judge.(2/2/) Within what time to be brought.] Appeals from a decree for the final settlement of the account of any executor, administrator, or guardian, must be made within three months after such decree shall have been recorded.(2) (43) Appeals from an order for the appoint- (y) 2 E. S. 609, } 104. (.W) Alston V. Jones, In Chan. Jan'v 23(1, 1843. («1 -2 U. S. 610, 5 105. (42) Appeals from decisions, orders and decrees of surrogates are not regulated bv the provisions of the Code. The Code has no application to surrogates' courts. (Van Sant. Eq. Pr. 683 ; Willcox v. 8mith, 26 Barb. 316.) The Code (§ 471) expressly provides tliat the second part of that act, until the legislature shall other- wise provide, shall not affect appeals from surrogates' courts, except that the costs on such an appeal shall be regulated and allowed in the manner provided in sec- tion 318 of that act. Section 318 directs that when the decision of a court of inferior jurisdiction, including appeals from surrogates' courts, shall be brought before the supreme court for review, such proceedings shall, for all the purposes of costs, be deemed an action at issue on a question of law, from the time the same shall be brought into the supreme court, and costs thereon shall be awarded and collected in such manner as the court shall direct, according to the nature of the case. Appeals to the supreme court from decrees or orders of surrogates are left to be governed by the lawin force previous to the Code, as well in respect to costs and fees, as in other particulars, (Brockway v. Jeu'ett, 16 Barb. 590 ;) except as the practice is modified by rule 51 of the supreme court. Appeals from orders and decrees of surrogates are now, in all cases, made to the supreme court, (Van Sant. Eq. Pr. 683 ;) and they should be first heard at a gen- eral term, it seejiis, (Wever v. Marvin, li Barb. 876; S. C. 7 How. Pr. 182;) including an appeal from a decision admitting or refusing to admit a will to probate, (Van Sant. Eq. Pr. 683.) which, under the former practice, was made to a circuit judge, and from his decision, to the chancellor. . An appeal from an order of a surrogate, admitting or refusing to admit, a will to probate, can be heard only at a general term. {McLees v. Avery, 4 How. Pr. 441 ; S. C. 3 Code R. 104.) The decision of a surrogate, awarding costs on the final settlement of the accounts of administrators, maybe reviewed on appeal. {Wilcox v. Smith, 26 Barb. 310.) The remedy against an ex parte order of a surrogate is not by appeal, but by motion to the surrogate. (Saltus v. Salt'us, 3 Lans. 9 ) (43) Appeals from orders, decrees and sentences of surrogates must be made within thirty days from the making of the order or decree. ( Williams v. Fitch. 15 Barb. 654.) An appeal from a surrogate's decree of distribution cannot be taken after three months from its entry ; even though such decree does not make a final distribution of the whole estate. {Anthony v. Brunwer, 31 How. 128 ; S. C. aff'd, 37 N. Y. 549 ; 5 Trans. Ap. 86 ; 34 How. 631.) 81.^ 425 PROCEEDINGS SUBSEQUENT TO THE DECREE. [Book II. ment of a guardian, or for liis removal, or upon a refusal to make such removal, must be made within six months after such order shall have been eiitered.(rt) In all other cases not specified, and not otherwise limited by law, appeals from the orders, decrees, and sentences of sur- rogates ninst be made witliin thirty days after the ordei', decree, or sentence shall have been made.(i) The thirty days mentioned in this last section are to be computed from the time when the order, decree or sentence is pronounced, and not from the service of a copy thereof (c) The chancellor has decided that a decree of a surrogate, upon an account taken against an administrator, made on the application of one or more creditors of the estate, but without citing the next of kin of the intestate, is not a decree for the final settlement of the account of the administrator; and that an appeal from such decree must be made within thirty days after the entry thereof (. Vreedenbnrgli v. Calf, 7 Paige, 419. (r) Ante p. 426. («) Foster v. Tvler, 7 Paige, 48. («1 Id. ib. Gardner v. Gardner, 5 Paige, 170. Hawley v. Donnelly, 8 Id. id. 415. («) Bnle 118. (t!) Id. ib. 820 Chap. 1.] PROCEEDIJS^GS SUBSEQUENT TO THE DECREE. 43 f) In a recent oase(w) the chancellor decided, that where an appeal from the decree of a surrogate upon the settlement of the account of an ' executor, &c., is not in relation to the allowance or rejection of par- ticular items of the account, or if the respondent wishes the decree modified in any other respect than as to parbieular items of the account, he must bring a cross appeal. Should a cross appeal be brought, doubtless the practice already pointed out with respect to cross appeals in the court for the correction of errors, would be applicable, substantially.(a:) Hearing.] Appeals from the decisions of surrogates as to the appoin f- ment or removal of guardians, &c., need not be placed on the caleadar, but may be heard on any regular motion day, or in term.(?/) Appeals from the decisions of surrogates upon summary applications also are to be heard as special motions.(2) (50) But all other appea,ls are considered calendar causes, and are to be heard at the terms only ; unless otherwise specially directed by the chancellor.(n). Such appeals as are necessary to be placed on the calendar have priority from the time when the matter arose before the surrogate.(^) Papers upo7i the hearing.] The papers which are to be furnished for the chancellor upon the hearing of an appeal from the sentence or decree of a surrogate are, a copy of the surrogate's return, including the transcript of the appeal as entered in the court below, and copies of the petition of appeal and answer to the same filed in the appellate court (if any,) together with the points of the respective parties upon the appeal.(c) (51) Decree.] Upon the aflBrmance of a decree of a surrogate directing the payment of a balance found due from the appellant, the respondent may have the decree of aflBrmance enrolled, and may talce out execution thereon in this eourt.() This return is styled by the rules, a transcript of the proceedings, ( pi 2 n. S. 60D, { 100. iq) Id. ill. ID III. ill. ( ini. Ante, p. 43?. (.■!) F'<«ter & Trier v. Foster, 7 Paige, 48. 1^1 Id ill (Hi 2R. S. 6'i9. } 102 (ti) Id. ill. j 103. 828 Cnap. l.J PROCEEDTNGS SUBSEQUENT TO THE DECREE. 43" and it is required to be authenticated and returned to the court within tu-enty days from the. time of entering the appeal in the court below, or the chancellor may dismiss the appeal, unless further time is allowed for the return of the transcript.(2w) Notice of appeal] The filing of the appeal in the office of the sur- rogate, and perfecting the same by giving a bond, will be deemed suffi- cient notice of the appeal to the adverse party, without any other notice.(a;) Petition of appeal.] The notice of appeal which is filed in the office of the surrogate, being general in its terms, it cannot be ascertained with any degree of certainty, who the appellant intends to make parties to the same, until he has filed his petition of appeal here. This peti- tion should be similar to the petition of appeal required on an appeal to a circuit judge, or upon an appeal from a surrogate to the chancel- lor, before mentioned, and should name the persons who are intended to be made parties respondents to the appeal.(«/) It should also pray that a day may be fixed for the parties to be heard on such appeal, so that due notice of the hearing may be given to such of the parties as are entitled to appear, to sustain the decision appealed from.(z) Answer to petition.] There must also be an answer to the petition of appeal by the respondents therein, in the form specified by the llStli rule.(a) Order to answer petition.] The appellant, at any time after the petition of appeal and the transcript of the proceedings in tlie court below have been filed with the register or assistant register, may have an order of course that the respondent answer the petition within twenty days, in the same manner as upon an appeal from the surrogate to the chancellor, or that the appeal be heard ex parte.{b) If the respondent is a minor and has appeared in this court by his guardian ad litem, the appellant may have an order of course that such guardian ad litem answer the petition of appeal within twenty days, or that an attachment issue against him.(c) Order to deliver co])y of petition of appeal] If the petition of appeal, after having been filed, is not served on the respondent, he may have an order of course that the appellant deliver a copy of such petition to the solicitor or guardian ad litem of the respondent, within ten days, (fc) Enle 118. {X) 2 E. S. 611, ! 117. [y) Foster v. Foster, 7 Pjiige, 51. Stewart t. Nicholson, in Chan. April 6, 1841. See mle 118. Ante, p. 425, 433. (2) See Chaffee v. The Baptist Missionary Convention, 10 Paige, 85. («) Stewart v. Nicholson, supra, (b) Hnle 118. (c Idem. 829 438 PROCEEDINGS SUBSEQUENT TO THE DECREE. [Book 11. or that the appeal be dismissed. And if the petition is not deliA'ered within that time, the respondent, on notice to tl)e appellant, may apply to the chancellor to dismiss the appeal with costs.(rf) Appointing guardian ad litem.} If the respodent is a minor, he mnst procure a gnardian ad litem to be appointed within twenty days after the filing of the petition of appeal, or the ajipellant may apply to the chancellor ex parte, for an order appointing such guard- ian. (e) Parties.] An application to the surrogate to prove a will of personal estate may be made either by the executor or by any other person interested in the estate, under the will. And where tlie executor insti- tutes the proceedings in his own name, any other person who is inter- ested in proving the will, may intervene and make himself a party to the proceedings, if he thinks proper to do so.(/) It seems that a person interested in proving a will may make himself a party to an appeal from the decision of the surrogate, although he was not a party to the proceedings in the court below. But a party in interest, who claims to come in as an intervener, either in the court below or in the appellate court, must apply by petition to be made a party to the proceedings, before he can be permitted to take a part therein. (^) Where the wife, as the next of kin, appeals to the circuit judge from the decision of a surrogate admitting a will to probate, which decision is affirmed, the husband cannot appeal from the order of affirmance, in his own name, without joining his wife in the appeal. (A) Entitling papers.] Previous to filing the petition of appeal, the affi- davits and other papers maybe entitled in the same manner as the pro- ceedings before the surrogate ; but after this court has become fully possessed of the case, by the filing of the petition of appeal, showing who are the respondents, as well as who are appellants, the papers, as between such parties, must be entitled accordingly.({) Course of practice.] The statute directs that the court of chancery shall proceed upon such appeals in the same manner as upon appeals from surrogates ; and requires the court to prescribe, by rule, the course of practice thereon, as well as upon appeals from surrogates.(^) Accord- ingly it is provided by the 118th rule that upon such appeals the pro- (d) Idem. See Halsoy t. Van Amringe, 4 Paige, 279. (e) RnlellS. (/) Foster v. Poster, 7 Paige, 48. (g) Id. ib. (h) 1(1. ib. (i) Id. ib. (h) 2 R. S. 611, } 120. 830 Chap. 1.] PROCEBDrxGs subsequent to the decree. 439 ceedings shall be conducted by solicitors and counsel, and by guardians ad litem of minors according to the ordinary course of practice of this courtj in other cases; except where otherwise specified. SECTION XL APPEAL TO THE CHANCELLOR FROM A COURT OF COMMON PLEAS.(o4:) By the revised statutes, whenever the overseers of the poor of any city or town, discover any person, resident therein, to be an habitual drunkard having property to the amount of $350, which may be endangered by means of such drunkenness, it is made their duty to (54) To THE SUPREME COURT, FROM AN INFERIOR COURT. An appeal may be taken to the supreme court from tlie judgment rendered by a. county court, or by the mayors' courts, or the recorders' courts, of cities. (Code, § 344.) An appeal may also be taken, to the supreme court, from any order affecting a substantial right, made by a county court, or a county judge, in any action or pro- ceeding ; and such appeal shall be heard on a copy of the papers on which the order appealed from was made. (Id.) Upon an appeal from an inferior court, under section 344, the supreme court possesses no other powers than formerly upon a writ of error. (Thurber v. Town- send. 22 N. T. 617.) Accordingly, upon appeal from a mayor's court, the supreme court cannot reverse the judgment because the jury have given excessive damages. Such errors are to be corrected in the court of original jurisdiction. (Id.) On an appeal from a county court, in a cause originating in a justice's court, the supremo court exercises merely an appellate jurisdiction ; and can review only decisions actually made by the county court. {Lynch v. McBeth, 7 How. Pr. 113 ; Dorr v. Bine. 5 id. 323 ; Maltby v. Gh-eene, 1 Keyes, 548.) It has no power to review a judgment rendered in the county court by default. (Dorr v. Bine, supra.) The granting of a new trial, by the county court, under § 366 of the Code, is a matter of mere discretion, and not reviewable on appeal. ( Wai^el v. Wiles. 24 N. T. 635.) The county court having denied a motion for a new trial, except upon terms, the supreme court cannot review its order. (Id.; Tanner v. Marsh, 36 How. 140; S. C. 53 Barb. 438.) In Taylor v. Scoville, (54 Barb. 34,) it is said to be doubtful whether an appeal to the supreme court can be taken from an order of a county court denying a new trial, until after judgment, and then only in connection with an appeal from the judgment. A county court has the same power as the former court of common pleas possessed to incorporate a bill of exceptions, or a case and exceptions, into a judgment roll, in an action brought into that court by appeal from a justice's court. And the supreme court, on appeal from such judgment of the county court, can review any errors brought up by the record, including those, of course, which are contained in the case or exceptions. (Monroe v. Monroe, 27 How. 208.) This court can review judgments of the county court, brought up by appeal, on excep- tions that are made a part of the record, though the exceptions have not been passed upon in the former court by a motion for a new trial in that court. And it may reverse the judgments of such court, and grant new trials therein. (Bouffhton v. Mitchell, 29 How. 68; Dixon v. Buck, 42 Barb, 70.) But the supreme court cannot grant a new trial in the county court on the ground that the verdict was aqainM evidence, until after a motion has been made in the latter court, on that ground, and denied (Id.; Whitney v. Wells, 28 How. 150.) 831 439 PROCKKniXGS SUBSI':Q17E\T TO THE DhCRhE. [Bodk 11. A judgment entered by stipiilation, to enable one of the parties to appeal, for the purpose of obtaining a decision upon an intermediate order, before the issues in the case liavc been disposed of, is not reviewable. {Perkins v. Fariiham, 10 How, Pr 120.) The supreme court, on appeal from a county court, has authority to correct the judgment by conforming it to the ple;idiugs, in amount. In such a case, it is the duty of the court to reverse for the erroneous part, and affirm as to the residue. ( Weed V. Lee, 50 Barb. 354.) The same right and duty appertain to the county court ; and if that court fails to exercise the right, it is the duty of the supreme court, and the court of appeals, to modify and correct the judgment of the justice. (Id.) Since the amendment of § 344, in I860, an appeal lies from an order of a county judge, made in supplementary proceedings. (Croimse v. Whipple, 34 How. 333 ) An appellate court will not interfere with the discretion of a justice of the peace, in determining a question of adjournment, except in a clear ca.se of an abuse of such discretion. ( (Veed v. Lee, 50 Barb. 354.) An appeal lies to tlie supreme court from any intermediate order of the city court of Brooklyn involving the merits and necessarily affecting the judgment, as well before as after judgment, {Moore "v. Wood. 19 How. Pr. 405 ;) as from an order setting aside a verdict and ordering a new trial. (Id.) So from an order denying a motion for a new trial. (Suydam v. G-rand Street and Newtoion H. R. Co. 17 Ab. 304 ; S. C. 41 Barb. 375.) And a new trial may be ordered, on appeal from the city court. (Von Latham v. lAbby, 88 Barb. 339 ; S. C. 17 Ab. 238 ; sub nom. Von Latham v. Roxean.) But it is said to be doubtful whether an appeal to the supreme court can be taken from an order of a county court denying a new trial, until after judgment, and then only in connection with the judgment. (Per James, J., in Taylor v. Scoville, 54 Barb. 34 ) Tune for appealing.'] An appeal to the supreme court from an inferior court must be taken within two years after the judgment shall be perfected by filing the judgment roll. (Code, § 331.) Security vpov.] Section 345 of the Code requires security to be given, upon an appeal under § 344, in the same manner, and to the same extent, as upon an appeal to the court of appeals ; (i. e., by an undertaking in the sum of $500 signed by the appellant and at least two sureties, for the payment of costs and damages, or by a deposit of that sum with the clerk ; § 334.) The appeal is ineffectual, for any purpose, unless security is given as required by § 334 of the Code. (7"o»es v. Decker, 14 Ab. 391.) On an appeal from an inferior court, to the supreme court, the respondent should have information of the residence of the sureties ; and it seemn the undertaking must state their residence. (Blood v. Wilder, 6 How. Pr. 446.) Ajypeal, where heard.] Appeals in the supreme court must be heard at a general term, either in the district embracing the county where the judgment or order appealed from was entered, or in a county adjoining that county ; except that where the judgment or order was entered in the city and county of New York, the appeal must be heard in the first district. (Code, § 346.) An appeal from the order of a surrogate, admitting, or refusing to admit, a will to probate, should, in the first instance, be heard at a general term. ( Watts v. Akin, 4 How. Pr. 439.) Appeals to the county court which are transferred to the supreme court in pur- suance of § 31 of the act to amend the act in relation to the judiciary, passed Dec. 14, 1847, may be heard and decided at special term of the supreme court. (Sheldon v. Alhro, 8 How. Pr. 305. See Laws of 1870, ch. 408, § 10.) Judgment on appeal, where entered and docketed.] Judgment upon the appeal must be entered and docketed with the clerk in whose office the judgment roll is filed. When the appeal is heard in a county other than that where Si* judgment roll is filed, or is not from a judgment of a county court, the judgment upon the appeal must be certified to the clerk with whom the roll is filed, to be there entered and docketed. (Code, § 347.) In all cases of appeal from the circuit court, the judgment on the appeal should be certified to the clerk with whom the roll is filed, to be there entered and docketed. {Andrews v. Durant, 6. How. Pr. 191 ; S. C. 1 Code Rep., N. S. 410.) /i see)n« that the old practice of entering a new judgment, upon an appeal, still applies, where the appeal is brought from a judgment of an inferior court to the supreme court. {Eiio v. Crooke, 6 How. Pr. 462.) 833 Chap. 2.] PROCEFPINGS SUBSEQUEXT TO THE DECREE. ,440 make application to the court of chancery for the exercise of its powers and jurisdiction. (Z) If such drunkard has property to an amount less than $250, the overseers may make such application to the court of common pleas of the county; which is vested with the same powers in relation to the person and estate of such drunkard as are by statute conferred on the court of chancery, and shall, in all respects, proceed in the like manner, suiject to an apji^al to the court of chancer y.{m) Appeals from any order, judgment or decree of a court of common pleas, made pursuant to these provisions of the statiite, must be filed and entered within three months, after the making thereof. And they must be accompanied by a bond, with such sureties as the court shall approve, to the opposite party, in the penalty of $100, conditioned for the payment of such costs as shall be awarded against the appellant, in case of the order, jiidgment, or decree being a3irmed.(») The statutes also directs the court of chancery to proceed upon such appeal in the same manner as upon appeals from surrogates, and to prescribe, by rule, the course of practice thereon. (o) In pursuance of this direction, the court, by the 118th rule, has made the same regula- tion of the practice as that already mentioned in relation to appeals from a circuit judge.( p) Appeals of this nature need not be placed on the calendar;, but may be heard as special notions.(5') CHAPTER II. EXECUTION OF DECKEE. If the party against whom a decree is rendered, does not appeal from the same within the time limited by law, the opposite party proceeds to enforce the same by the process of the court. By toliat process.] It is a general principle that this court has tlie power to issue all process necessary to carry its decrees into effectual execution. (a) (D 2 E. S. 52, } 2. (m)I(1. ib. f 3. (n) Id. .IS, } 6. Id. 611, } 119. (o) Id. 611, i 120. (i>) See ante, p. 439, (q) Enle 120. (o) Ludlow V. Lansing, Hopk. 231.. Vol. I.-53 833 441 PROCEEDINGS SUBSEQUENT TO THE DECREE. [Book II. The first step to enforce the execution of a decree, if the party against whom it is pronounced, refuses or neglects to obey it, is a writ of exe- cution ;(1) which is a process of this court, under its seal, reciting a (1) The different kinds of execution. The Code (§ 286) provides that there shall he three kinds of execution : one against the property of the judgment debtor, another against his pernoii, and the third for the delivery of the possfssion of real or jiersoiiul property, or such deliverj' with damages for withholding the same. They shall be deemed the process of the court, but tli^y need not be sealed nor snhscribed except as prescribed in section 289, which requires an execution to be subscribed by the party issuing it, or his attorney. Jixecut'ion against the person.'] Executions against the person are governed mainly by the provisions of the Code. Section 178 doclares that no person shall be arrested, in a civil action, except as prescribed by that act ; but that that section .shall not afifect the act to abolish imprisonment for debt. Sec, passed April 2G, 1831, or any act amending the same ; nor apply to proceedings for contempts. ■ Section 179 of the Code prescribes tlie cases in which a defendant may be arrested. Among the cases specified in subdivision 2, are actions for money received, or prop- erty embezzled or fraudulently applied, by a public officer or by an attorney, solicitor or counselor, or by an officer or agent of a corporation or banking association, in the course of his employment as such, or by any factor, agent, broker or other pei'son in a fiduciary capacity, or for any misconduct or neglect in office, or in a professional employment. Subdivision 4 embraces cases where the defendant has been guilty of a fraud in contracting the debt or incurring the oblig.ition for which the action is brought, or in concealing or disposing of the property, for the taking, detention or conversion of which the action is brought ; or when the action is brought to recover damages for fraud or deceit. The other subdivisions of the section are mostly, if not entirely, applicable to com- mon law actions. The section also provides that no female shall be arrested, in any action, except for a wilful injury to person, character or property. Section 28i of the Code provides that if the action be one in which the defendant might have been arrested, as provided in sections 179 and 181, an execution against the person of the judgment debtor may be issued to any county within the Jurisdic- tion of the court, after the return of an execution against his property unsatisfied in whole or in part. But no execution shall issite against the person of a judgment debtor, unless an order of arrest has been served, as in the Code provided, or unless the complaint contains a statement of facts showing one or more of the causes of arrest required by section 179. Section 288 also provides that if any defendant be in actual custody, under an order of arrest, and the plaintiff shall neglect to enter judgment in the action within one month after it is in his power to do so. or shall neglect to issue execution against the person of such defendint, within three months after the entry of judg- ment, such defendant may, on his motion, be discharged from custody, by tlio court in which such action shall have been commenced, unless good cause to the contrary be shown ; and after being so discharged, such defendant shall not be arrested upon any execution issued in such action. The Revised Statutes contain a similar provision, viz.: "where any defendant, at the time judgment shall be rendered against him, shall be in custody of the sheriff, either upon process or when surrendered in discharge of bail, in snch suit, he shall be charged in execution thereon within three months after the last day of the term next following that at which such judgment was rendered. And where the defendant is surrendered in exoneration of his bail, after judgment has been obtained against him, he shall be charged in execution thereon within three months after such surren- der. Or, if an execution against the property of such defendant shall have been issued within three months after the return day of such execution, if any plaintiff shall neglect to so charge any defendant in execution, such defendant may be dis- charged from custody by a supersedeas to be allowed by any judge of the court in which such judgment shall have been obtained ; and after being so discharged, such defendant shall not be liable to be arrested upon any execution which shall be issued upon snch judgment." (2 R. S. 556, §§ 36, 37.) In Skinner v. Noyes, (7 Rob. 228.) it is held that the remedy under these pro 834: Chap. 2.] PROCEEDINGS SUBSEQUENT TO THE DECREE. ^^\ visions of tlie Revised Statutes still remains, upon showing tlie matters required by sections 36 and 37. It is not essential that it should appe.ar on the face of an execution issued against the persou, that the action is one which warrants the arrest of the defendant, although it is the better practice to .state the nature of the action, in the execution. (Fidler- ton V. Fitzgerald, 18 Barb, 44t ; S. C. 10 How. Pr. 37.) An execution which directed tlie sheriff to arrest the debtor and commit him to jail, 8tc., until he should pay the judgment according to law, the words " or be dis- charged" being erased, was held a valid execution, in Hutchinson v. Braiid, (9 N. Y. 208 ; S. C. 6 How. Pr. 73.) It has been li-eld that section 288 of the Code, in its true construction, requires that in all those actions where the nature of the cause of action is such that the defendant may be arrested, the ground of arrest must be stated in the complaint, otherwise an execution cannot go against the person, unless an order of arrest has been served. But when the action is one in which the defendant cannot be arrested without some extrinsic fact, forming no part of the cause of action, but merely inci- dental to it, the fict must be stated in an affidavit, and an order of arrest must be obtained and served. The averment of such fact in the complaint will not alone authorize an execution against the person. (Atocha v. Oarcia, 15 Ab. 303 ; S. C. 24 How. 186.) In an action in which the right to arrest grows out of the extrinsic facts, and does not follow from the nature of the action itself, an execution against the person cannot be issued unless an order of arrest has been obtained in the action, before judgment. {Molenaor v. Kerner, 1\L How. 190 ; S. C. 13 Ab. 241, n. ; Ken- denlmrg v. Morgan, 18 How. Pr. 469.) The execution may issue without an order of the court ; and in case an order of arrest has been granted in the action, and not vacated, it is not necessary that the judgment should award the execution, or show tliat the case is a proper one for an execution against the person. (^Bidl v. 3/e//'.pear before him and iiccount. And if it shall ajipear that there is property properly applicnb'c f o the jiayment in whole or in iiart of such judgment, the surrogate shall make an (n-der that execution be issued for the amount so apiili- cable. (2R. S. 116, §§ 19, 20.) Under the provisions of the above sections of the statute, it is erroneous to pro- ceed by an order to show cause. A citntion .should be issued, (fit. Jolin\. Vocyrhies, 19 Ab. 53;) and if, on the l#aring. there aiipo;irs to be no assets in the hands of the executor or administrator, the surrogate lios no ]iower to order an execution. (lb.) Where an executor is cited before a surrogate to show cause why an execution should not issue against the estate of liis trstatoi-. and after a full hearing the surro- gate makes an order granting lea.ve to issue sv.cli exicjtlon, no appeal lies from the 844 Chap. 2.] PROCEEDINGS SUBSKQUEXr TO THE DECREE. 442 order. It seems that the making of siicli order is in the discretion of tlie surrogate ( Mount V. JMitckell. 81 N. Y. 3-56 ; S. C. 19 Ab. 1.) Tile court in which judgment is rendered still has jurisdiction to grant an order to issue execution thereon, against tlie personal rei)resentatives of a deceased defendant. The consent of the surrogate, under chapter 295 of the Laws of 1850. is an additional requisite, and is not substituted for that of the court. {Mnr'nw Baiih of Chicago v. Van Briini, 61 Barb. 361.) By the Code, a motion is substituted in the place of the former -writ, of siit-e fai-ias, in such a case. (Id.) Some motion must be made to the court in which tiie judgment was recovered ; and a motion for leave to issue execution upon the judgment, against the representatives of the deceased, is one of proper character. (Id.) The statute provides that execution shall issue only for the sum tliat shall have appeared to be a just proportion of the assets of the deceased, applicable to the judgment. (2 R. S. 88, § 32,) If the judgment was obtained by default, the order may be obtained at any time after six months from the granting of letters testamentary, but not before. (See 2 R. S. 110, § 18.) And if obtained " after a trial at law upon the merits," at any time after judgment, though within the six months. {Mills v. Thursbv, 2 Ab. 432. 437 ; S. C. 12 How. Pr. 385 ; Winne v. Van Schaick, 9 "R^end. 448. But see People ex rel. Bailey v. Judges of Albany Mayor's Court, 9 TTend. 48, contra. And see People ex rel. Fogalsonger v. Judges of Erie Com. Plea.f, 4 Cowen, 445.) There are cases in which the surrogate has a discretion whether to grant an order for the issuing of an execution. {Mills v. Thursby, 11 How. Pr. 126.) Where the accounts of the executor have been rendered and settled, before the surrogate, an order is not necessary. {Olmstead v. Vrecleiiburgh , 10 How. Pr. 215.) Where the executor has incurred a liability in the administration of the estate, for which a judgment lias been recovered, after a trial on the merits, the surrogate may make an order that execution be issued, in the same manner as though it had been a judgment on a debt owing by the de(^dent. {Matter of Tliomi^son's estate, 41 Barb. 237 ; S. C. 1 Redf. 490.) If a plaintiff dies ailer final judgment in his favor, but before execution issued, the same remedy may be had by action, pursuant to § 428 of the Code, as was previously had by writ of scire fnnas at the suit of his personal rejiresentatives. {Ireland v. Litihfield. 22 How.'Pr. 178 ; S. C. 8 Bosw. 634.) Such a proceeding is not an action on the judgment, and may be had without leave of the court. It is the only mode of reviving the judgment in the name of the executors or admin- istrators, and of obtaining execution thereon. {Wheeler v. Dakiv, 12 How. Pr. 537.) In Thm-.itoii v. King, (1 Ab. 126.) the court say that execution cannot issue upon a judgment after the death of the judgment creditor, and the only remedy is by original action by the executors of the deceased, in which •' they would be entitled to ask for and obtain an execution, to be issued in their names." An execution upon a judgment cannot be issued upon the application of the executors of a deceased plaintiff, upon motion. {lay v. Martine, 2 Duer, 654. See, also. Wheeler v. Dali^, 12 How. Pr. 537 ; 7'hurstov v. King, 1 Ab. 126.) "When a judgment ereditor dies, and within a year thereafter his executor applies to the court, upon affidavit, without notice to the judgment debtor, and obtains an order reviving the suit in the name of the executor, and authorizing an execution to issue, on which'real estate is sold, such execution is voidable, but not void ; and one not holding under the judgment debtor cannot raise tlie question. (iVims v. Sabine, 44 How. 252.) In such case the rule is good, though more than ten years have elapsed since the docketing of the judgment ; and no lien is necessary to authorize a sale, as against the defendant in the execution, or trespassers. (Id.) ^VTiere executors have assigned a judgment, an action to obtain an execution tliereou is the proper course. {Cameron v. Young, 6 How. Pr. 372.) But an action will not lie in the supreme court, for leave to issue an execution on a judg- ment recovered in the county court. {Niles v. Perry, 29 How. 192.) In. Bellinger v. Ford, (21 Barb. 311,) where, a<>er the lapse of five years, a motion was made to allow execution to be issued on a judgment, which motion was granted, but it appearing that the plaintiff had been dead for over two years, and that the aflSdavit was entitled in the original action, and the notice of motion was subscribed by the attorney for the plaintiff; it was held that the order, and the execution issued under it, were Aoid. A creditor may impeach the discharge of a debtor, obtained under the insolvent laws, for fraud; but he cannot disregard it, and issue execution on his judgment, 845 442 PROCEEDINGS SUBSEQUENT TO THE DECREE. [Book II. party; or by excntion against his goods and chattels, and in default thereof, his lands and tenements.(/(;) In some decrees tjie sum of money adjudged due is to be paid, or the duty is to be performed, within a time specified therein. In others, it is decreed to be paid or done generally, without fixing a time. In either case a clause is inserted that the party have execution to enforce the decree. Whether a time is fixed, or not, an execution may be taken out at once, as soon as the decree is enrolled, in the same manner as it is issued upon a judgment at law when docketed. (Z) But no pirocess can be issued on any final decree until the same has been eurolled.(wi) If a decree is final as to any branch of the cause, or as to any of the parties, it must be enrolled before execution can be issued to compel a compliance with such decree.(w) (7) ;j) 2 K. S. 183, i no, (orig. i 104.) U> 2Hoff. Ch. Pr. 92. (m) 2 It. S. 183, S 110, (orig. 104.) Enle 111. (m) Miuthoriie's ex'rs v. Tompkins' ex'rs, 2 Paige, 102. and sustain the execution and levy by affidavits of the fraud. {Dresser v. Shufeldt, 7 Sow. Pr. 85.) The court will not try the question of fraud, on motion, but will set aside such an execution, and leave the plaintiff to his action on the judgment ; and will not allow the levy to be detained as security. (Id. ; StuaH v. Salhinger, 14 Ab. 291 ; Manhattan Oil Co. v. Thwn, id. note; Rich y. Salinger, 11 id. 344.) But when the discharge has been adjudged to be invalid, the plaintiff will be allowed to issue execution on the judgment. {/Small v. Wheaton, i E. D. Smith, 427 ; S. C. 2 Ab. 316. See Brmon v. Bradletj, 5 Ab., 141.) In &uuveriieur v. Warner, (2 Sandf 624,) where the plaintiff filed a creditor's bill in equity against the defendant, and after due proceedings a receiver was appointed and took possession of the property, and the plaintiff issued an alia^ execution, and a levy was made on property held by such receiver, the court ordered the levy to be set aside and the execution stayed, unless the plaintiff should dismiss his bill in equity and vacate the receivership. If a defend.int is in actual custody under an order of arrest, the plaintiff must issue execution against the person of such defendant within three months after the entry of judgment ; or the defendant may, on motion, be discharged from custody, by the court, unless good cause to the contrary be shown ; and cannot he arrested upon execution issued in the action. (Code, § 288.) The Revised Statutes contain a similar provision, and authorizing the discharge from custody, of a defendant, by a supersedeas. (2 R. S. 556, §§ 36, 37.) It is not essential that an execution should be issued by the attorney of record. It will be equally valid if issued by any other attorney. {Cook v. Bickerson. 1 Duor, 679.) As to the time and manner of issuing executions upon judgments entered hy con- ftssion, without action, see Code, § 384. (7) The judgment roll must be filed, and the judgment regularly docketed. An execution issued before this has been done is void. {Tovmshendv.' Wesson, 4 Duer, 342. 354.) No judgment will authorize proceedings thereon, until the record has been signed and filed. (2 R. S. 360, § 11. See Marvin v. Herrick, 5 AVend. 109 ; Barrie v. Dana, 20 John. 307.) Where there has been a stay of proceedings for the purpose of an appeal, au oral announcement of the decision, and an entry of the simie in the minutes of the clerk, are not sufficient to authorize the issuing of an execution. A formal judgment which embi-aces the decision of the court, and which becomes a permanent record, must be entered by the clerk; and it is oniy such a judgment that removes the stay. {Boicman v. Tollman, 19 Ab. 84 ; S. C. 3 Rob. 633 ; 2 id. 632 ; 28 How. 482.) An execution sent to the sheriff, and received by him, previous to the signing and 846 Chap. 2.] PROCEEDINGS SUBSEQUENT TO THE DECREE. 449 A party who is equitably entitled to costs, must apply to the court to obtain a positive order for the payment thereof before he can take out an execution for thera.(o) Upon such an order, the statute(^) has authorized the issuiug of a precept to commit the party to prison if he refuses to pay the amount which is thus ordered to be paid to the adverse part3^ But as the revised statutes have authorized this court to enforce the performance of a decree only, by an execution against the projoerty of the party, as on a common law judgement, it may be doubtful whether ^.fi.fa. cau be issued upon a mere order for the pay- ment of interlocutory costs.(y) (8) The "act to abolish imprisonment for debt,"(r) prohibits the arrest or imprisonment of any person upon any execution issuing out of any court of equity, in any suit or proceeding instituted for the recovery of any money due upon any judgment or decree, founded upon contract, expressed or implied, or for the recovery of any damages for the non- performance of any contract. But by the second section of the act, the above exemption is declared not to extend to proceedings as for contempts to enforce civil rerne- dies.(s) And by another provision of the revised statutes,(!!) proceed- ings as for a contempt may be resorted to in all cases where attach- ments and proceedings as for contempts have been usually adopted and pi'acticed in courts of record, to enforce the civil remedies or to pro- tects the rights of any party to a suit. The chancellor has decided that where, upon an appeal by the defen- dant from an interlocutory decision of a vice chancellor, such decision is reversed, with costs, and no order is obtained to remit the proceed- ings to the vice chancellor, it is oiitional with the appellant to have the {o) Van Ness t. Can tine, 4 Paige 55. (?))«ee2R. S. 411, }4. BnlelTl. (g) Viin Ness v. Ciintine, supra. (r) 1 R. S. {2cl. e(l.)S07, §1. (s) 1 E. S. (-2(1. ert ) 808, } 3. («) 2K. S. 634, § l,snb. 8. filing of tte record, is not irregularly issued, if the sheriff be directed to indorse it as received on a subsequent day, and on that day the record be actually signed and filed, and a levy is not made until such proceedings have been had. {Walters v. Sykez, 22 Wend. 566.) In CMcheste.r v. Cande, (3 Cowen, 39,) where an execution was issued and levied through inadvertence, before the record was filed, it was ordered filed imiic pro tunc. (8) The mode of collecting costs awarded by order,s of the court, is pointed out by statute. (Laws of 1840, p. 333, § 15 ; Laws of 1847, p. 491, §§ 2,' 3 ;) and these provisions of law are not repealed by the Code. (Lucas v. Johnson, 1 Code Rep., N. S. 301 ; Poillon v. Haughton, 2 Code R. 14.) Whenever there is an order of the court directing the payment of costs, process in the nature of a fieri, facias may issue against the personal property of the party ordered to pay them, without appli- cation to tlje court, upon the expiration of the time jjrescribcd for piiymont. ( We'it- zel V. Schultz, 3 Ab. 468.) 847 444 FROCEEDIXGS SUIifiKQUE^T TO THE DF.CRKE. [ Book H. decree of the chancellor eurdlled and to take out a _/?. fa. or ca. m. tliereou, or to proceed as for a contempt, and apply for a precept to commit the complainant to prison until tlie costs are paid.(2() So, upon an appeal to the court of errors from an interlocutory order of the chancellor, the decree is final, so far as respects the costs awarded on the appeal ; and these costs may be collected on an execution, in the usual mauner.(t)) And in the case of Patrick v. WarneVyiio) it was held that a party who is committed to jail on a precept in the nature of an attachment for the non-payment of costs, is not exempt from imprisonment, under the act to abolish imprisonment for debt. But a party thus imprisoned is entitled to the jail ]iberties.(a;) And unless the commitment is for costs only, he may be discharged from imprisonment under the statute, upon presenting a petition and making an assignment of his property.(y) But where a party is committed for the non-payment of a fine imposed upon him by the court, for the breach of an injunction, or other contempt, he must be confined by the sheriff within the walls of the prison. (z) In the case of Patrick v. Warner the chancellor observes that if an order for the payment of interlocutory costs cannot be enforced by the imprisonment of a party, the adverse party would, in most cases, be without remedy, although the property of the person liable to pay them, was more than sufficient to pay all his debts. Execution against corporations^ If a decree be against a corpora- tion aggregate, and it is not obeyed, the process against them is a dis- tringas, and afterwards a sequestration. The form of the distringas is in general terms, to compel the defendants .to appear and answer a contempt alleged against them, — the endorsement on the writ express- ing the natnre of the contempt.(a) If a sequestration issues to enforce the performance of a decree for the payment of money, the goods of the corporation and the rents and profits of its real estate, will be applica- ble, under that process, to the payment of the demand.(5) (9) (it) Brookway v. Copp, 2 Paige, 578. (V) Id. ib. (wi) 4 Paige, 397. (X) Id. ib. People v. Bennett, id. 2S2. iy) People v. Bennett, supra, (z) M. ib. (a) 1 New]. 688. (6) Davis V. D.avis, 2 Atk. 24. AVy. Prac. Reg. 386. (9) Against municipal corporations. In all actions commenced since April 14, 1800, against the city of New Tork, ten days' notice in writing must be given to the comptroller, either by the party adverse 848 Cllmp. 2.] PROCKEDISGS SUliSEQUEKr TO THF. DECREE. 444 Against absent defendants.] In case of a decree against an absent or absconding defendant, the statute directs that upon the coming iu of the master's report of the proofs and examinations had before him, the court shall make such order thereupon as shall be just. Process shall then issue to compel the performance of such decree, either by sequestration of the real and personal estate of the defendant, or sucli part thereof as shall be deemed sufficient; or where any specific eslate or effects are demanded by the bill, by causing possession of the prop- erty so demanded, to be delivered to the complainant.(c) In the case of Goodrich v. Day,[d) which was a suit brought to have a mortgage given to the defendant, and which was a cloud upon the complainant's title, declared void on the ground of usury, and to have it delivered up and cancelle'd of I'ecord, the chancellor made a decree accordingly, upon the bill being taken as confessed by the defendant, (who was a non-resident of the state,) witliout service of process, upon an order for his appearance duly published. And the decree directed him to pay the complainant's costs of suit to be taxed — the payment to be enforced by the sequestration of the real and personal estate of the defendant, according to the directions of the statute. Against heirs, devisees, Sc] Every final decree rendered in au suit by a creditor against an heir or devisee, has preference as a lien on the {c) 3 R. S. 137, H 13.-), 136, (orig. Sf 129, 130.) (d) In Chan. Jan. 23a, 1813. in interest, his agent, attorney or the sheriff, before any execution can be levied upon the property of the city. (Laws of 1860. ch. 379, §§ 5, C.) The act of 1865 provides that until the moneys to pay judgments recovered against the city shall have been raised, as therein provided, and payment of such judgments shall have been refused for two days after demand in writing of the comptroller, no execution shall issue against the corporation, unless the amount of such judgments shall not have been included in the annual report or budget of the comptroller, in the next tax levy passed by the legislature. (Laws of 186.5, ch. 646, § 5.) But this pro- vision does not affect claims arising out of the riots of July, 1863. (Id.) Nor to judgments on contracts made before the act took effect. (Hadfield v. Mayor, tfrc, of New York, 2 Ab., N. S. 95 ; S. C. 6 Rob. 501.) Under an execution upon a judgment against a municipal corporation, the property of the corporation, not devoted to public use, may be taken and sold to satisfy the judgment. If there is no such property, the remedy is by mandamus, to compel the payment of the judgment out of any money or fund under the corporate control, or to compel the raising of it by tax, when the corporation is clothed with the power to iMise it by tax. If it is not, then the creditor of the municipal government is placed in the same condition as are the creditors of the state, or of the United States ; ho has no compulsory remedy. {Brinckerlioff' v. TTie Board of Education, 6 Ab., N. R. 428; S. C. 37 How. 499; 2 Daly. 443!) Under the mechanics' lien law, a lien cannot be acquired for work done, or materials furnished towards the erection of a public school-house, erected iu accordance with the provisions of certain laws of the state relating to the city of New York, and which is devoted, by those laws, to a p^iiilic use. (Id.) And no such security can he obtained, under the mechanics' lien law, upon property which, for reasons of public necessity, cannot be taken and sold to satisfy judgments obtained in ordinary civil actions. (Id.) Vol. I.— 54 849 444 PROCEEDINGS SVBSEQUE]\'T TO THE DECREE. [Book IF. real estate descended, to any judgment or decree obtained against sncli heir personally, for any debt or demand in his own right.(e) And a sale under an execution upon such deci-ee, will overreach all aliena- tions of the estate made subsequent to the commencement of the suit.(/) (10) In the case of Morriss v. Mowatt,{g) the chancellor thought it pro- bable that in order to give the purchaser under a decree of this court, a legal title sufiScient to protect him in a court of law from a sale under a previous judgment against an heir, it might be necessary to issue an execution upon the decree, and have the property sold by the sheriff in the usual manner. In suits brought against several heirs jointly, or several devisees jointly, the amount which the complainant shall be entitled to recover shall be apportioned among the heirs of the ancestor, or among all the devisees of the testator, in proportion to the value of the real estate descended to such heirs, or devised to such devisees, respectively, as the case may be; and such proportion only shall be recovered of each heir or of each legatee.(/<) The costs are also to be apportioned in the same manner; and the decree must express the amount recovered against each defendant, and the execution must conform to the decree.(i) Upon a decree against infant heirs or devisees, no execution can be executed against them within one year after the rendition of the decree. But if there are any adult defendants in the same suit, the execution may be executed against t])em.(^-) The solicitor issuing an execution in such a case, must endorse there- on the names of the defendants who are infants, and must direct the sheriff not to execute the same against them until the expiration of one year.(Z) Against lands held in trust.'[ Lands, tenements, and real estate holden by any one in trust, or for the use of another, are liable to decrees and executions against the person to whose use they are holden, ;e) 2 R. S. 454, S 48. (/) Id. ilj. } 49. (.9) 2 I'aiso, 603. (A) 2 R. S. 45.5. § 32. (i) 111. ib. f 53. (*) 1(1. ib. } 64. (() Id. ib. S 65. (10) The Revised Statutes direct that if execution be issued upon a judgment rendered against any person a#ter-tenant, heir or devisee of any deceased person, it shall command the amount of such judgment to be made of the real estate whereof the ancestor, testator or person deceased was seized at the time the same real estate became liable, or at any time afterwards, or at the time of the death of such ancestor testator, Stc, unless such heir, devisee or ter-tenivnt shall have made his own estate liable tCsuch judgment. (2 R. S. 367, § 25.) 850. Chap. 2.] PROCEEDINGS SUBSEQUENT TC THE DECREE. 445 in the cases, and in the manner prescribed in the first chapter of the second part of the revised statiites.()«) Levy necessary.] Until an actual levy, no goods or chattels are hound by an execution as against a purchaser without notice.(w) (11) (12) (13) (14) (15) (m) 1(1. 36S, S 26. (ji) 'J K. S. ISi, i 111, (orig. § 105.) (11) Levy and lien op execution. 1. Leoy.1 A levy upon personal property is the act of taking possession of, or seizing it, by the officer, under an execution, whereby the lien of such execution becomes perfect, and the property is deemed in the custody of the law. (Crocker on Sheriffs, § 431, 2d ed.) To constitute a valid levy, the officer must enter on the premises where the goods are, and take possession thereof, if that be practicable. If not, he must openly and unequivocally assert his title to them by virtue of his execution. It is not essential to the validity of the levy that he take actual possession of the goods ; or that he remove them from the custody of the debtor. (Hoth v. WelJs, 29 N. T. 471 ; S. C. 27 How. 599 ; 41 Barb. 194 ; Blias v. FarLmi, 5 Ab., N. S. 39 ; S. C. 3 Keyes, 398 ; Bond V. Waiet, 29 How. 47 ; S. C. 31 N. Y. 102 ; 1 Keyes, 377.) But the goods sliould be within view of the officer. {Barker v. Blninger, 14 N. Y. 270; Ray \. Hanoiirt. 19 Wend. 495.) The test of a valid levy is, whether enough has been done to subject the officer to an action of trespass, but for the protection of the execution. (Moth, v. He//,?, supra.) Where a sheriff went to the store of judgment debtors, saw the goods, asserted his right to them by virtue of his levy, in the hearing of one of the debtors, and subsequently, on the same day, caused the fact that a levy had been made, to be indorsed on the execution, by a deputy, it was held this was a valid levy. (Id.) A memorandum of the levy should be made, (Bond v. Willet, supra,) and the levy should not be kept secret from the debtor. (Price v. Shipps, 16 Barb. 585.) Yet his consent to the levy is not essential. (Artisans' Bank v. Treadioell , S I Barb. 553 ; S. C. 25 N. Y. 489, sub. nom. Van Ality7i,e v. Cook.) Notice of the levy, given to the person in charaie of the goods, is sufficient {Elias v. Farley, 6 Ab., N. S.39; S. C. 3 Keyes, 398 ; 2 Trans. Ap. Il6.) A public avowal of the levy, by the sheriff, is not necessary. (Butler v. Maynard, 11 Wend. 584. See. also, Haggerty v. Wilier. 10 John. 287 ; Wickham v. Miller, 12 id. 320.) No inventory is necessary to make a valid levy. A seizure of part of the goods in a house, in the name of the whole, has been field a good seizure of the whole. (Mills V. Thitrsby, 11 How. Pr. 121 ; Watts >. Cleveland, 3 E. D. Smith, 503 ; HaggeHy v. Wilier, 16 John. 287.) The slieriflf is not restricted as to the amount of property he shall levy upon ; nor is it essential that he levy on the whole at once. (Benvrey v. Fox, 22 Barb. 522 ) A levy upon sufficient personal property to satisfy the execution does not, of itself, amount to a satisfaction of the judgment. (Id. See, also, Radde v. Whitney, 4 E. D. Smith, 378.) If, after the return day of the execution, other property be substituted for that u|)On which the bheriff has made a levy, the sheriff will not have such a title to the substituted property as will defeat the title of a prior bona fide purchaser ; even though' the substitution be made under an agreement between the sheriff and the debtor. (Shelton v. Westervelt, 1 Duer, 109.) Where a levy has been made upon goods, and some of them are sold by the debtor, and others of the same general character are substituted, the substituted goods are liable to sale, since the debtors have voluntarily mingled goods not liable to be sold, with those that were. (Roth v. Wells. 29 N. Y. 471 ; S. C. 27 How. 599 ; 41 Barb. 194.) The -sheriff may require indemnity before levying on goods claimed by a third party . (Chamberlain v. Beller. 18 N. Y. 115.) If he is indemnified, he has no excuse for not keeping possession of property levied upon, although a sheriff's jury has found that the title is in a third party. (People ex rel. Kellogg v. Schuyler. 5 Barb. 166 ) If the sheriff discovers that property upon which he has levied belongs to a third person, he may relinquish the levy and return the execution nulla bona. {Blivin V. Bleakleu, 23 How. 124.) 851 445 I'ROCEEDiyaS SUBSKqCK.XT TO THR DECREE. [Book II. Wliji-e an execution, issued against two joint debtors, has been levied upon the property of one of them, the plaintiff will not be allowed to countermand it, and issue ;i ujw execution for the purpose of making a levy upon the sole property of the other .1 'li-nd int. (iJcChaiu v. MrKeon, 2 Ducr, 645.) T7hen the first execution, so I. ,ied, is not withdrawn, and another issued with the consent of all the defendants, the court will order the second to be set aside, and the first to be returned satisfied. (1(1) The rule that a levy under an execution, upon sufficient property to satisfy ii:e judgment, does not operate, per se, as a sati.sfaction, is only applicable when the collection of the debt, by force of the levy, is not defeated by the act or fault of the lilaintiff. (Id.) An assignee of the judgment stands in the same position as the plaintiff upon the record, and the legal consequences of his acts are the same as those of the plaintiff. (Id.) An execution against joint property cannot be levied on the sole property of one of the defendants. {Sherry v. Schui/ler, - Hill, 20i.) By virtue of an execution on a judgment against one of several partners, the entiie partnership property may be seized, and the interest of snch partner sold. (Berry V. Kellj, 4 Rob. 106 ; Here/man v. Thttlebarh , 11 How. Pr. 46 ; Wallah v. Adams, 3 Denio, 125 ; Phillips v. f'noh, 24 Wend. 389 ) The sheriff may sell the interest of the judgment debtor, and deliver the goods to the purchaser, who takes them subject to the partnership debts. (Id. ; Moicbray v. Lawrence, 13 Ab. 317 ; S. C. 22 Ho« 107.) In case of a judgment against a special partner, jn a limited partnership, the right, title and interest of such special partner cannot be sold on execution. (Harris v. M'itrray,28 N. T. 574.) For a debt owing by all the partners — general and special — in a limited partnership, a suit is well brought against the general partners, alone. And a judgment, .Tnd execution, in such suit, levied upon the property of the partnership, will bind the entire interest of all the partners. (^T he Artisans' Bank v. Treadwell, 34 Barb. 553 ; S. C. aff'd, -25 N. Y. 489, sub nora. Van Alstyne v. nnofi:) Where joint- property has been levied upon, under an execution against one part- ner, if the officer sells the whole property, he is liable in trespass. ( Waddell v. Cook, 2 Hill, 47 ; Walsh v. Adams, 3 Denio, 125.) The lew of an execution on Simdai/ is prohibited by the Revised Statutes. (1 R. S. 675. § 69. See iJoS v. Moffat, 3 John. 257.) A party who directs, and the officer who makes, an oppressive levy, is responsible for the unlawful act. As regards the officer, the rule is that where a ministerial officer does anything contrary to the duty of his office, and damage thereby accrues, an action lies. (Caiitine v. Clark, 41 Barb. 629.) Neither a judgment creditor nor an officer is justified in using the process or authority of the court oppressively, to the injury either of the debtor or of any third person. (Id.) No formal levy upon, or seizure of real estate is necessary. ( Wood v. Culinn, 5 Hill, 228.) A mere levvupon lands does not amount to satisfaction. {Taylor v. ll-t.;neii, 4 Hill, 619,) The sheriff has no authority to levy on the property of any person except the one ■described in the execution. (Farnham v. Hildreth, 32 Barb. 277 ) In James v. Giirle'/. (48 N. T. 163.) a deputy sheriff, by consent of the attorney and county clerk, took from the clerk's office an execution which had been returned, erased the return, and made a levy and sale ; it was held, that as the amendment might have been allowed by the court, the process was not void, but only irregular. That the sheriff was therefore liable for the money received by the deputy, thereon. 2. Lifn. — As against the defendant in the execution, the lien of the execution attaches upon all the goods of the defendant within the jurisdiction of the sheriff when the writ is delivered to the officer. {Hotk v. Wells. 29 N. Y. 471 ; S. C. 41 Birb. 194. See 2 R. S. 365. § 13 ; Pine v. Rikert, 21 Barb. 469 ; Camp v. Chrimher- liin, 5 Denio, 198.) The lien attaches not only to the property which the judgment debtor had when the execution was issued, but to all acquired by him, within the jurisdiction of the sheriff, during the life of the execution. (Roth v. Wells, supra.) The lien of a levy by virtue of an execution Issued on a bona fide judgment in a •state court, is preserved by the bankrupt act, and is to be respected by the United States' court sitting in bankruptcy. (Matter of Bernstein, 34 How. 289.) It is provided by statute that the title of any purchaser in good faith, acquired prior to the actual levy of any execution, without notice of such execution being issued, shall not be divested by the fact that such execution had been delivered to an officer, to be executed, before such purchase was made. (2 R. S. 366, § 17. See Millspaugh v. Mitchell, 8 Barb. 333 ; Pine v. Rikert, 21 id. 469 ; Camp y.Chamber- 853 Cliap. 2.] PROCEEDIXGS SUBSEQUENT TO THE DECREE. 445 lain. 5 Denio, 198 ) A sulsequent purchaser will have no title, although his pur- chase be bona fide and for a valuable consideration ; for, upon a levy, the sheritT acquires the entire interest (subject to the rights of prior buna fide purchasers) and his sale relates back to the day of the levy. ( Fidler v. Alh?i, 7 Ab. 12 ; S. C, 10 How. Pr. 247 ; Thompson v. Van VecMen. 5 Ab. 458 ; Birdsei/e v. Haij, 4 Hill, 158.) In Stoutenburgh v. VandenHirgh , (7 How Pr. 229, 234, note a.) where an execu- tion was delivered to a sheriff one day before the transcript was tiled, it was held that the execution became operative so as to effect a lien from the time the tran- script was actuallj' filed. Any agreement by which a sheriff relinquishes his lien upon property seized is void. {IShelton\. Westcrrelt,! B-aer, 109.) But if he discovers that property upon which he has levied belongs to a third person, he may relinquish the levy, and return the execution 7mUa bona. (Blimn v. Bleakley, 23 How. Pr. 124.) So far as real estate is concerned, the lien is effected by docketing the judgment in the county where the lands are situated ; and, as to goods and chattels, by issuing execution to the sheriff of the county where the property is situated, and levyiug on the same. The lien being thus placed upon the projierty, the creditor is in a situa- tion to ask relief in a court of equity, if there be an existing necessity. [Payne v. Shfldon, 63 Barb. 169 ) Where the lien of a judgment has ceased, by lapse of time, the court will order a perpetual stay of execution in behalf of bona fide, purchasers, unless the judgment creditor shall satisfy the court that there is good reason for supposing that the pur- chases were not made in good faith. ( Wilxon v. Smith, 2 Code R. 18.) (12) Sale or property upon ; redemption. 1. Personal property.'] Tlie sale of any persona] property by virtue of an execu- tion, must be made at public vendue, between the hour of nine in the morning and the setting of the sun. (2 R. S. 369. § 36.) A sale of chattels after sundown is void. C'arnr.ck v. Myers, 14 Barb. 10.) No sale of chattels can be made upon execution, unless written or printed notice be posted, for six days successively, in three of the most public places in the town where the sale is to be had, specifying the time and place thereof. (2 R. S. 366, § 21.) The property must be present, and within view, and must be sold in soch lots as will be calculated to bring the highest price. (Id. 367, § 23 ; Cre.i.ton v. Stout, 17 John. 116.) It must also be specificaDy designated and separated, if in mass. {Stevens v. Eno. 10 Barb. 95 ; Warring v. Loomis, 4 Barb. 484. See Tlfft v. Bar- ton, 4 Denio, 171.) The plaintiff in the execution may be a purchaser at the sale. ( Weaver v. Too- good, 1 Barb. 238.) But he must not leave the goods iu the possession of the defen- dant. (Crardenier V . Tid/ls, 21 Wend. 169. See Farringtonv. Casuell, 15 John. 430. n. ; Woodirorth v. Woodvorth, 21 Barb. 343.) Where property is bought at a sheriff's sale, by tlie plaintiff in the execution, and left in the possession of the defen- dant, without any good excuse shown, the sale is void, as against oth^r creditors of the defendant ; notwithstanding the plaintiff subsequently, and before the levying of an execution by other creditors, reduces the property to his actual possession. (Id.) Before the court will restrain the sale of partnership property, under an execution against one partner only, the applicant must show that the defendant in the execu- tion has no interest in the property. (Mowbray v. Laurence, 13 Ab. 317 ; S. C. 22 How. 107.) The sheriff may take indemnity to protect himself in selling the property of a third person, but he cannot indemnify buyers. (Ball v. Pratt, 36 Barb. 402.) And indemnity given to him is good, though executed after the sale. ( Westervelt v. Fro.H, 1 Ab. 74.) As to postponements, the sheriff is bound to exercise a proper discretion, and if it appears that there will be too great a sacrifice, he may postpone the sale. (McDonald. V. Neilson, 2 Cowen, 139, 190.) Where, after the officer had levied on goods, under an execution,^ he received another execution, under which he sold some of the goods levied on. it was held not irregular, as the levy under the first execution was sufficient for both. (Cresson v. Stout, 17 John. 116.) Objections in respect to the sale can be raised only by parties to the execution. (Smith v. McGoivan, 1 Code Rep. 27 ; S. C. 3 Barb. 404.) Personal property, pledged by way of mortgage, may, after forfeiture, be levied on by virtue of an execution against the mortgagee, although it remains in the hands of the mortgagor. {Ferguson v. Lee, 9 Wend. i258.) Where a chattel mortgage is not filed until after the delivery of an execution to the sheriff, it is void as against the 853 445 PKOCEKDTNGS SUBSEQUENT TO THE DECREE. [Book II. latter, although actually filed before a levy has hecn made, {Hale v. Street, 40 iJ. Y. 97.) Goods mortgaged may be seized, and the interest of the mortgagor sold, upon execution against him, in case the mortgage is not due, and the mortgagor is in possession at the time of such seizure, and entitled to the possession by stipulation. (Hall V. i^Samsoii , 35 N Y. 274 ; Hull v. Carnleij, 17 id. 29:2. See, also, S. C. 11 N. Y. 501 ; 1 Ab 158 ; Mnttison v. Baueus, 1 N. Y. 295) The mortgagor's equity of redemption may be sold on execution, by a stranger, notwithstanding the mort- gigee has been let into possession of the premises. (Trlvtmv. Mamh, 3 Laus. 509.) Where the title of the mortgagee has become absolute, by reason of the default of the ■mortgagor, the property cannot be seized on an execution against the latter, although he still retains possession. {Cliamplin v. Johnson, 39 Barb. 606 ) It is provided by statute that where goods shall be jjledc/ed for the payment of money, or the performance of an agi-eement. the interest in such goods of the person m;iking such pledge may be sold on execution against him (2 R. S. 366, § 20. See Stiefw. Hart, 1 N. Y. 20; S. C. 1 How. Ap. Cas. ISl.) But after a sale of siicli property, the pledgee is entitled to the possession of the goods until they arc redeemed by the purchaser. (Id.) In Brownell v. Caruley, (3 Duer, 9,) the court say. the question, whether the statute, in authorizing a sale of the interest of a ])ledgor, upon execution, has authorized the sheriff to remove the proi)erty from the l)os,session of the pledgee, is still open ; since the decision of the court of appeals in iStiefy- Hart, supra, was rendered on an equal division of the judges. The interest of a bailee, or a pledgee, mav be taken and sold on execution against such bailee. {Saul v. Kruger, 9 How. Pr. 569 ; Otis v. Wood, 3 Wend. 500.) But a bailee of sheep, under an agreement to keep them in consideration of receiving their wool, has no leviable interest until shearing time. (Haslrouck v. Bouton, 41 IIow. 208, S. C. 60 Barb. 413.) The bailee must first have performed his entire contract, by keeping the sheep until shearing time. (Id.) Gold and silver toin may be levied upon, but need not be exposed for sale. Hills or other evidences of debt, issued by a moneyed corporation, may be levied upon. (2 R. S. 860, §§ 18, 19.) AVhere the sheriff has collected money upon an execution in favor of B. he h.is no right, as against the assignee of B., to levy upon .such money in his hands, by virtue of or upon his own motion, to apply them to the payment of an execution against B. received by him ; although he lias no notice of the assignment. {Baker v. Ken- vorth", 41 N. Y. 215. See, also, Beits v. Hoijt, 19 Barb. 412 ; Can-oil v. Cone, 40 id. 220 ) If the legal title to property is in a mar i'd woman, such property cannot be seized to satisfy the debts of the husband. (G-ane v. Dauchy, 34 N. Y, 298 ; Com- ing v. Leuis. 54 Barb. 51: S. C. 36 How. 425; Allen v. Coimn, 28 N. Y. 502; Burger V. Whitf, 2 Bosw . 92.) Yet, in Freeman v. Orser, (5 Duer, 476.) where there was no evidence of any valid assent by the husband to the carrying on of a millinery business by the wife, and it appeared that the earnings and profits, as well as her separate capital, were invested in the stock on hand, and there were no means by which they could be discriminated ; it was held that the whole was rightly levied on, under an execution against the property of the husband. That which grows, spontaneously, from the soil, such as trees and grass, cannot be seized on execution, as a chattel, until it has been severed from the land. {Bank of Lavslnghurnh v. Crarn, 1 Barb. 542; Cresson v. Stmit, 17 .John. 116.) Choses in action cannot be seized and sold on execution. {Ransom v. Miner, 1 Code Rep., N. S. 98 ; S. C. 3 Sand. 692.) Although an action may be brought only against the general partners of a limited partnership, yet under an execution on a- judgment therein, all the partnership effects may be sold. ( Van Alstnne v. Cook, 25 N, Y. 489 ; S. C. 34 Barb. 553, sub. nom. Artisans' Bank v. Trendvell.) Upon an execution issued on a judgment against a special partner in a limited partnership, the right, title and interest of such siiecial partner cannot be sold. {Harris v. il/Hjrai/, 28 N. Y. 574.) Upon an exe- cution issued on a judgment against one of several partners, the entire partnership ))roperty may be seized, and the interest of such partner sold. {Berr/ v. Kelli/ji Rob. 106; Hergmanv. DHtlelarh, 11 How. Pr. 46; PMllips v. Cook. 24 Wend. 389 ; Walsh v, Ada,ms, 3 Denio. 125.) The sheriff may sell the interest of the judg- ment debtor, and deliver the goods to the purchaser, who will take them subject to the partnership debts. (Id. ; Moidrai/ v. Lawrence, 13 Ab. 317 ; S. C. 22 How.. Pr. 107.) In a proper case, a sale upon execution will be set aside, and a resale ordered. 854 Chap. 2.] PROCEEDIXGS SUBSaqUENT TO THE DECREE. 445 (Bixbi/ V. Mead. 18 Wend. 611.) As, where property worth $1,000 was bid off foi $26, and it was shown that the defendant was insolvent. (Id.) So where there was misrepresentation, as to the property sold. (Dwight's Cass, 15 Ab. 259 ; Ain.es v. Lockicood, 13 How. Pr. 555. And .see Pset v. Cowenhoven, 14 Ab. 56.) In CariirUk v. Mi/e^-s, (14 Barb, fl,) where a party, whose property was levied on by execution, objected to the sale, on the ground that the property was exempt from execution, but be afterwards turned out the property to the sheriff, to be sold at a future day ; it was held that this was nothing more than a claim of exemption, in order to gain time ; that the sheriff, in subsequently selling the property, acted under a claim of authority given by law, and not under an authority given by the party ; and that an abuse of his authority, by the sheriff, made him a trespasser ab initio. Property exem/pi.'] Certain personal property, to a limited amount, is, by various statutes, exempted from levy and sale under execution. (See 3 R. S. 5th ed. 645, §§ 22, 23 ; Laws of 1866. ch. 782 ; Laws of 1851, ch. 122, § 19 ; Laws of 1864, ch. 578. §§ 4, 5 ; Laws of 1858, ch. 107.) For the decisions, as to what is. and what is not exempt property, and as to exemption, generally, see Wait's Code, 551, 552, 553. The object of the law is to protect the poor, and their families, and it should receive a liberal construction, in order to promote its humane and remedial purposes. (Stew- art V. Brown, 37 N. Y. 350 ; Wilcox v. Hawlei/, 31 id. 648 ; Kneettle v. A'ewcomb, 22 id. 249 ; S. C. 31 Barb. 169 ; S?iaw v. Davis, 47 id. 497.) A non-resident debtor is entitled to the same exemption, as to property out of the state, as though it were within the state. (Bunn v. Fonda. 2 Code Rep. 70.) Where property of a judgment debtor is exempt, at the time of his death, it remains so afterwards, for the benefit of his widow and children. (Becker v. Becker, 47 Barb. 497.) No property in the possession of a judgment debtor is exempt per se. If he would claim exemption, for any property, he must, by proper proof, bring himself and his property within some statutory exception. (Dains v. Pros-ter, 32 Barb. 290 ; Griffin V. Sathen-lavd. 14 id. 456 ; Chamhers v. Hal.tted, Lalor's Supp. 384 ; Va?i SlcMei- v. Jatols. 14 John. 434.) Exemption is a personal privilege, and no party can claim it except the defendant in the execution or his family. (Baker v. Brintnall, 52 Barb. 1S8 ; S. C. 5 Ab., N. S. 253 : Smith v. Brackett, 36 Barb. 571 ; Smith v. Bill, 22 id. 656 ; Barl v. Camp, 16 Wend. 562 ; Mickles v. Tousley, 1 Cowen, 114 ; U'vianm v. Sirart, 4 Lans. 263.) A party cannot, by a prospective agreement, waive the right of exemption. Hence, where a party inserted in a note this clause : '' And I hereby waive and relinquish all Tight of exemption of any property I may have, from execution on this debt,'' it was held null and void. (Kneettle v'. NeiKcomh, 22 N. Y. 249 ; S. C. 31 Barb. 109 ; Harper v. Leal, 10 How. Pr. 276 ; Craifford v. Lockuood, 9 id. 547 ; S. C. 12 N. Y. Leg. Obs 105.) An officer holding process is not bound to consult with owners of property, before proceeding with a levy. Unless the judgment debtor, after notice that a levy has been made, gives the officer notice of his claim of exemption, he cannot recover against the officer for taking the property. (Tannam v. Swart, 4 Lans. 263.) A ]>erson who buys a chattel, in good faith, at a sale on execution, is not liable in an action for the recovery of the property, brought on the ground that it was exempt, if the plaintiff did not claim the exemption, at the sale, but merely forbade the sale, without specifying any ground. (Id.) 2. Heal estate.] With respect to what real estate is liable to bo sold on execution, the Revised Statutes provide that if there are not chattels sufficient to satisfy the execution, then all the real estate which the debtor nuiy have had when the judg- ment was docketed, or .at any time thereafter, shall be liable, in whose hands soever the same may be. (2 R. S. 367, § 24.) Lands, tenements, &c., held in trust for the use of another arc liable to executions, &C against the one to whose use they are holden. (Id. 308. § 26. Sue Carfield v. Hatmaker. 15 N. Y. 475 ; Mallovi v. Clark, 9 Ab. 358 ; S. C. 20 How. Pr. 418.) Leasehold property may be seized and sold on execution, if the lessee or his assignee has five years of unexpired terra ; and so of buildings erected on such prop- erty. (Laws of 1837, chap 462.) A vested future estate may be sold on execution. (■'Sheridan- v. Hov.se, 4 Keyes, 569. See, also. .Jackson v. Midileton, 52 Barb. 0.) But an estate at will, or by suf- ferance, cannot be so sold, (Bigelow v. Fiiich, 17 Barb. 394 ; S. C. 11 id. 4ya j 855 445 PROCEEDINGS SUBSEQUENT TO THE DECREE. [Book 11. Cnlmn v. Baker, 2 id. 206 ;) nor the interest of one in possession of land under a con- tract to purcliase, (Sage v. Cartng/it, 9 N. Y. 49 ; Grriffin v. Spencer, 6 Hill, 525 ; Kellogg v. Kellogg, GBarb. 116 ;) nor, if a debt is secured by a mortgage, can the equity of redemption be sold on a judgment for such debt (Delaplaine v. Hitch- lock, 6 Hill, 14.; Neither can land lying in another state be sold, by virtue of pro- cess from the courts of this state. {Hunk v. St. JoJin, 29 Barb. 585.) A reversionary interest in real estate may be the subject of levy and sale upon exe- cution, although the extent of such interest cannot be ascertained at the time of such sale, and the whole reversion is contingent upon the happening of events which may never occur. ( Woodgate v. Fleet, 44 N. Y. 1.) In selling projjerty upon execution, the sheriff acts by virtue of a statutory author ity, which must be strictly pursued. (Hasted v. Dakin, 17 Ab. 137.) The title of land acquired under a sheriff's sale is subject to all prior incumbrances. ( Weaver Y. Toogood, 1 Barb. 238 ; McKinstry v. Curtis, 10 Paige, 503.) It is a general rule that a purchaser under a power purchases at his peril, and is bound to inquire whether the power has not been extinguished. This rule applies to titles acquired at sheriff's sales upon execution. (Stafford v. Williains, 12 Barb. 240.) Notice of the sale of real estate, upon execution, must be given in the manner ])rcscribed by the Revised Statutes.' (2 E. S. 368, 369, §§ 34, 35.) Sales in Hamil- ton county are governed by chapter 162 of the Laws of 1867, as amended by chapter 662 of the Laws of 1870. It is sufficient notice of the sale of real estate upon execution to post a notice as required by the statute, forty-two days previous to the sale, and publish a copy thereof in six successive numbers of a weekly newspaper, although the tlrst |iubli- cation may be less than six weeks prior to the sale. (Olcott v. Mohinso'), 21 N. Y. 150. See Wood v. yioorhousc. 1 Lans. 405.) The sale must be at public vendue, between the hour of nine o'clock in the morning and the setting of the sun. (2 R. S. 369, § 36.) The statute directs that if the real estate to be sold consists of several known lots, tracts or parcels, they shall be separately exposed for sale ; and if any person claiming to be the owner of any portion of such estate, or of such lots, tracts or parcels, or either of them, or claiming to be entitled by law to redeem any such portion, shall require such portion to be exposed for sale separately, it shall be the duty of the sheriff to expose the same for sale accordingly. (Id. § 38.) It has been decided that this provision of the statute is directory, merely ; and that a sale in disregard of it is not void, but only voidable. (Cunniiighain. v. C'assidy, 7 Ab. 183 ; S. C. 17 N. Y. 276 ; (^roff v. Jones. 6 "Wend. 522.) Such a sale is an irregularity, merely. (Husted v. Dakin, 17 Ab. 187.) A party aggrieved by it must apply for relief within a reasonable time. He may waive the irregularity, by express ratification, or by neglect to move within a reasonable time. (Cunningham V. Cassulfi, supra.) The sheriff may sell, under an execution against several defendants who are tenants in common of the jjremises bound by the judgment, the right and title of all the defendants together ; unless some one claiming to be the owner of some portion of the estate, or claiming to be entitled by law to redeem any portion, shall require such portion to be exposed for sale separately. (Neilson v. Neilson, 5 Barb. 565.) No more of any real estate shall be exposed for sale than shall appear necessary to satisfy the execution. (2 R. S. 396, § 38.) In (h-off v. Jones, (6 "Wend. 522,) where real estate worth ^10,000 was sold en tnasse to satisfy a judgment for $100, although the premises were so situated that a portion which would probably have brought more than enough to satisfy the judgment could conveniently have been sold separately, the sale was set aside as fraudulent. So a sale will be set aside, in favor of a judgment creditor where it appears that he has been misled by the conduct of the sheriff: especially where the property has been sacrificed. (Aines v. Lockwood, 13 How. Pr. 555 ) The sale of separate l)arcels together, it is said, is always sufficient cause for setting aside the sale. (Id.) In Mulks V. Allen,. (12 "Wend. 253,) where the plaintiff and a deputy sheriff were deceived as to the locality of the defendant's real estate by the representations of the defendant, and in consequence thereof, the plaintiff bid $800 for property not worth over $150, and it was struck off to him, a resale was ordered. And a resale will be ordered when the plaintiff', inadvertently, bids a sum less than the amount of his execution. (Ontario Bank v. Lansing, 2 Wend. 260. But see Vanden- .hicrgh v. Briggs, 7 Cowen, 367, contra.) 856 Cliap. '^.J PROCEEDINGS SUBSEQUENT TO THE DECREE. 445 If a sale is advertised under one execution, only, a sale cannot be had under an execution subsequently coming to the sheriff's hands. (Husted v. Dakin, 17 Ah. 137, 150 ) If the pui;chaser refuses payment, the sheriff may bring an action for the amount of his bid. (Caappell v. Dann, 21 Barb. 17 ; Beariisleij v. Moot, 11 John. 4(34.) If the plaintiff's attorney purchases the property, and takes the certificate in his own niime, the presumption is that he has purcliased on his own account, and the sheriff may sue him for the price. (Id. See, also, Hawley v. Cramer, i Cowen, 717.) One defendant in a judgment may become the purchaser, at a sheriff's sale, of the veal estate of his co-defendant. (Neilson v. Neiison, 5 Barb. 56,).) The sheriff, or other officer to whom an execution is directed, and his deputy holding such execution and conducting the sale of property in pursuance thereof, are forbidden, directly or indirectly, to purchase any property at sucli sale ; and all piu'cha.ses made by such sheriff, officer or deputy, or to his use, are declared void. (2 R. S. 370, § 41.) It has been decided that a turnkey, or assistant Jailer is not within the operation of this prohibition. (Tackson v. Andeison, 4 Wend. 474.) Where the property of a defendant, sold on execution, is bid in by the plaintiff in the judgment, for a sum sufficient to satisfy the same, the plaintiff ceases to be a judgment creditor of the defendant; and he cannot attack conveyances subse- quently made by the judgment debtor ; nor ask to have dealings between him and third persons set aside, on the ground of fraud. ( irear,ei' v. Toogood, 1 Barb, 238.) Where a judgment creditor purchases, at a sheriff sale under an execution issued upon his judgment, land of the defendant, which is covered by a prior mortgage, he cannot come into a court of equity to compel the judgment debtor to pay such prior mortgage, so as to discharge the land purchased, from the lien thereof. (Id.) A sale of the property of a defendant by virtue of a judgment and execution which is satisfied, the purchaser having full knowledge of the fact, would, it seems, be con- sidered a nullity, although the defendant assented to the jiroceeding. {Jackson v. Anderson, 4 Wend. 474.) The judgment is the foundation of the sherift''s action, and if that be paid, at the time he undertakes to sell, his acts are without authority, and void. (Cr%ft v. Merrill, 14 N. Y. 4-56 ; Stafford v. WilliaiiUi ,\2 Barb. 240 ; Nellsoii, V. NeUson, 5 id. 505 ; Wood v. C'olriv, 2 Hill, 506.) And even a bona fide purchaser derives no title from the sale. {Neilson v. NeUson, supra.) It there is enough land out of which an execution may be satisfied, after the debtor has sold a portion of his estate to a bona fide purchaser, the court will direct the sheriff to satisfy the execution out of what remains. ( Welch v. James, 22 How. Pr. 474.) 'In Cantine v. Clark, (41 Barb. 629,) where the assignee of a judgment knew, as did the sheriff, also, that certain lands held by the judgment debtor and others as tenants in common had been voluntarily partitioned, by the tenants, among themselves, and quit-claim deeds executed, and that the lots apportioned to and accepted by the judgment debtor were abundantly sufficient to satisfy the judgment, •with the expenses of the sale, yet they proceeded to sell, on execution, the lots set off on such partition, to the plaintiff, one of the joint tenants, regardless of his rights and equities, it was held that this was a fraudulent act, none tne less reprehensible because committed under the guise of legal sanction ; and that an action would lie against the holder of the judgment and the sheriff, to set aside the sale and cancel the sheriff's certificate. Although a party can obtain an order in such a case, it seems, before the sale, directing the sheriff as to the mode of executing the jirocess, or may obtain relief on motion, afler the sale, he has also a remedy by direct action ; and will be entitled to relief in such action, although fraud is not charged, in terms, nor proved, or found by the court ; provided facts are stated, proved or found, from which fraud is, in law, necessarily deducible. (Id.) An irregularity in the sale will not affect the title of a bona- fide purchaser with- out notice. (NeUson v. NeUson, 5 Barb. 565 ; Jackson, v. Cadirell. 1 Cowen, 022 ; Chautauqvn County Barik v. Misley, 4 Denio, 580.) Thus the title is not affected by the sheriff's return of the writ, or his failure to return it, (Neilson v, Neilson, supra ) Nor by his omissioji to levy until the execution had expired, (Averill v. Wilson, 4 Barb. 180 ; ) or to file the certificate of sale. {Jackson v. Young, 5 Cowen, 269,) In the absence of proof to the contrary, it will, ordinarily, be presumed in favor of a sale under execution, that the sheriff has duly posted the proper notices of sale, 857 445 PROCEEDINGS SUBSEQUENT TO THE DECREE. [Book II. {Wood V. Morehouse, 45 N. Y 368.) Tlie publication of a sheriff's notice of sale ol" real estate under execution is sufficient, if inserted once in each week for the six weeks iinor to the sale, although six full weeks have not elapsed between the date of the first publication and the diy of sile. (Id ) The statute (2 R. S. 269) providing that the omission of the sheriff to give the required notice of sale shall not affect the validity of a sale made to a purchaser in good faith, without notice of the (jrais- sion, applies to a sale made to the judgment creditor ; although he pays no money, and the amount of his bid is merely credited upon the execution. (Id ) iSlieriff's certificate.'] The statute directs that upon a sale of real estate upon exe- cution, the officer making the same shall make out and subscribe duplicate certifi- cates of such sale, containing a particular description of the premises sold ; the price paid for each distinct lot or parcel ; the whole consideration money paid ; the time when such sale will become absolute and the purchaser will be entitled to a convey- ance pursuant to law. (2 R. S. 370, § 41:.) One of such duplicate certificates must, within ten da.ys after the sale, be filed in the office of the clerk of the county, and the other be delivered to the purchaser. If there be two or more purchasers, a certificate must be delivered to each. (fd. §43.) Such certificate, when filed, is to be recorded by the clerk, in a book to be kept by him for that purpose, and the record is presumptive evidence of the facts stated therein. (3 R. S. 5th ed. 651, §§ 58, 59.) The original certificate, on being proved or acknowledged in the manner required by law, or a copy duly certified by the clerk, is also to be received as presumptive evidence of the facts therein contained. (Id. §60.) A sheriff's certificate may be assigned, by an instrument to be acknowledged or proved in the same manner as deeds, (3 R. S. 5th ed. 057, § 92,) and the assign- ment must be filed in the clerk's office. (Id.) Assignments of sheriffs' cestificates m.^de prior to the passage of the act of 1835, (Laws of 1835, ch. 189 ; 4 Edm. Stat. 623.) and valid when made, were not invalid- ated by that act, but carried to the assignees all the rights acquired or evidenced by the certificates of sale, notwithstanding an omission to acknowledge or prove and file, such assignments. (Phillips v. Schiffer, 64 Barb. 548.) The principal object of the act of 1835. was the protection of sheriffs, by creating a statutory mode of evidencing the claims of assignees, without which, a sheriff could not be compelled to convey to such assignees. (Id.) The sherift" may u-aive the protection of the statute ; and if he does so, and conveys to an actual assignee, the title of his grantee will not be affected bv the omission to prove and file the assignment of the certificate. (Id. ; Wood V. Morehouse, 45 N. T. 368.) Where a sheriff's deed recited the sale of the premises by him to persons named, and the assignment of the certificates of sale, by the purchasers, to other persons, by instruments in writing under the hands and seals of the assignees, and the sheriff testified that he always required the production and proof of assignments, before he conveyed lands sold by him on execution, to an assignee, and would not have recited the assignment in a deed, unlfess the fact of assignment had been satisfactorily proved to him, and the certificate and assignment delivered to him ; that it was not his custom to keep or file them, and that he destroyed the assignment, after the deed was executed and delivered : Held that the substantial contents of the several assi.gnments were sufficiently proved by the recitals in the sheriff's deed, and that their execution and existence at and before the execution of the deed, and their loss or destruction were satisfactorily shown, by the sheriff. (Phillipps v. Schiffer, S'ovra.) In a proper case the sheriff's certificate may be amended, as where the sheriff sold a lot of land to which the debtor had no legal title. {Ricliards v. Varnum, 8 How. Pr. 79.) And in Smith v. Hudson, (1 Cowen, 430,)where the sheriff had omitted to mention one lot of land sold, he was permitted to make the corrections, according to the fact. The sheriff's certificate is made prima facie evidence of the facts authorized to be inserted therein, but of nothing more. (Anderson v. James, 4 Rob. 35.) [f the certificate is a cloud upon the title of the equitable owner of lands, an action may be maintained to remove it, before the time to redeem has expired. {Louvjiburii v. Purdi/, 18 N. Y. 515 ; S. C. 11 Barb. 490; 16 id. 376 ; Coolc v. Newman, 8 How.'Pr. 523.) "Where a judgment creditor applies to redeem to the assignee of the sheriff's certifi- cate, the acceptance of the money and transfer of the certificate, by the assignee, is a waiver of the production by the junior judgment creditor of evidence of his right to 858 Chfip. !.'.] PBOCEEDIXGS SUBSEQUKAT TO THE DECREE. 4 4'5 redeem. A.nd as the requirement of such production is for the benefit of the holder of the certificate, his waiver renders such production unnecessary to the validity of the sherilf's deed, given to the creditor so redeeming. ( Wood v. JUorehouse, 45 N. Y. 368.) Redemption.'] "Within one year from the time of sale of real estate upon execution, the same, or any distinct lot, tract or portion that may have been sold separately may be redeemed, by the payment to the purchaser, his personal representatives or assignees, or to the officer who made the sale, for the use of such purchaser, of the sum bid on the sale of such lot or tract, with interest at the rate of ten per cent. (Id. 651, § 61.) The statute also specifies the persons by whom redemption may be made, (id. 652, §§ 62, 63, 64, 67,) and declares that upon such payment being made, by any person so entitled to redeem, the sale of the premises so redeemed, and the certificates of such sale shall bo null and void. (Id. § 65 ) In case the persons so entitled shall omit to redeem, within the year, then the interest vested in the purchaser by such sale may be acquired within three months after the expiration of the year, by the persons, and on the terms prescribed in the statute. (Id. § 66.) That is, by tred- xtui-s. (Id. §§ 67 to 78.) The right and title of the defendant in the execution to any real estate sold thereby is not divested by such sale, until the exjjiration of fifteen months from the time of sale ; but if the real estate has not been redeemed, and a deed shall be executed, in pursuance of a sale, the grantee in such deed shall be deemed vested with the legal estate from the time of the sale on such execution, for the purpose of maintaining an action for an injury to such real estate. (3 R. S. 5th ed. 655, § 78.) After the expiration of fifteen months from the time of the sale of any real estate, if any part of the premises sold shall remain unredeemed by the person against whom the execution issued, or by any person entitled to redeem the same within one year from the time of such sale, then the officer making such sale shall complete thesame, by executing a conveyance of the premises so remaining unredeemed, either to the original purchaser, or to the creditor who may have acquired the title of such original purchaser, or to the creditor who may have purchased such title from any other cred- itor, as the case may be ; which conveyance shall be valid and eifectual to convey all the right, title and interest which was sold by such officer. (3 R. S. 5th ed. 655, § 79.) In case of the death of a person entitled to a deed, previous to its delivery, the conveyance must be made to his executois or administrators, who are to hold the estate so conveyed in trust for the use of his heirs, subject to the dower of his widow, if thei'e be any ; but it may be sold for the payment of his debts, by the order of any surrogate, or court of equitv, in the same manner as lands whereof such decedent died seized. (Id. §§ 80, 81.) "Where a sale has been made, and a certificate given to the purchaser, but no deed executed pursuant to the statute, it is the duty of the sheriff, or, in case of his death or removal from office, of his under sheriff, to execute a deed of the estate so sold and remaining unredeemed, to any person or persons to whom such certificate shall have been duly assigned, or to the executors or administrators of any deceased assignee. (3 R. S. 5th ed. 657, § 91.) It has been held that the legal estate of a judgment debtor is not divested bj' a sale of the land upon execution and the expiration of the time for redemption, unless the sale has been consummated, and the title vested in the purchaser, by a deed from, the .iheriff. (Smith v. Colviv, 17 Barb. 157 ; Farmers' Bank of Saratoga Countii v. Merchant, 13 How. Pr. 10.) Until a conveyance is executed by the sheriff, the title of a purchaser at a sale on execution is inchoate. By the simple act of purchase he acquires no lecjal estate in the land, but a right to an estate, which may be per- fected by conveyance. The legal estate remains in the debtor, who, prior to the sheriff's deed, is entitled to the possession, and to the rents and profits. (Id.) Before conveyance, the purchaser cannot defend a possession obtained against the consent of the debtor. (Id ) Upon a judgment recovered in a court of common pleas, an execution was issued out of the supreme court. The sheriff sold the lands of the defendant, thereon, and after the lapse of fifteen months, gave the purchaser a deed, which recited that the execution issued out of the supreme court. Subsequently, the county court granted an order amending the execution, and the sheriff's certificate and deed, so as to represent the execution as issuing out of the county court, instead of the supreme court. In pursuance of the order, the sheriff, after the deed had been delivered, and after his term of office had expired, altered the deed accordingly, without any 859 445 PROCHEDh\GS SUBSEQITENT TO THE DKCREE. [Book II. new execution or acknowledgment. Held, that purchaser at the sheriff's sale acquired no title to the premises. (Carlie v. MiUa; 18 Barb. 269.) Held, also, that the deed, after having been executed, and delivered to the purchaser, could not be thus altered, without destroying its validity, if it ever had any. (Id ) A sheriff's deed of lands sold upon c.'cecution, executed after the time to redeem expires, relates back to that period. And where, before any deed is given, in pur- suance of the sale, another person acquires all the interest of the purcha.ser, and lirocures the sheriff to execute and deliver a deed, the title passes thereby, although the purchaser be the grantee in the deed, and does not consent to the execution and delivery thereof. (.Wright y. J)ouqlass, 2 N, Y, 373.) After a sale of lands upon execution, by a sheriff, and the execution of a convey- ance to the purchaser, extrinsic evidence c.mnot be resorted to in order to establish the intent of the sheriff in making the sile. {Mason v. White, 11 Barb. 173.) The inquiry into the intent of the sheriff must be restricted to the terms used, and to the intent which the language of the instrument expresses. Extrinsic circumstances may be resorted to to .explain the terms used in the deed, and to locate the premises described therein. But they can only" be allowed for the purpose of establishing and carrying out the intent expressed in the deed ; not an intent which the terms of the deed fail to express. (Id.) Nothing will pass, at a sheriff 's sale, except what is then known and promulgated. (Id ) A sheriff's deed to an assignee of the certificate of sale is valid, though the assignment has neither been jiroved, acknowledged, nor filed, according to the stat- ute- {The Bank of VergeniuK\. irfwrefl, 7 Hill, 91.) If the last day for redemption falls on Sunday, the party must redeem on Satur- day. {People ex rel. Pugsleij v. Luther, 1 Wend. 42.) After a sale under a judgment, the right to redeem under such judgment is extin- guished. {Shepardv. O'iVeJZ, 4 Barb. 125; Wood v. tW»iK, 5 Hill, 228 ; Hx parte iSteven,i. 4 Cowen, 138.) Until the expiration of one year from the sale, the judgment debtor is entitled to the possession of real estate sold, and to the rents and profits thereof {Evertsen v. SaiiHjer. 2 Wend. 507. See. also, Marsh v. White, 3 Barb. 518 ; 8c}iermerhorn v. Merrill, 1 id. 511 ) The assignee of a sheriff's certificate of sale stands in the position of the original purchaser, and the redemption may ,be made from him. {People v. Mansom, 4 Denio, 145.) A party alleging a redemption of premises from a sheriff's sale, by another person, is not bound to produce the sheriff's certificate, or the receipt indorsed thereon, in order to prove the payment of the money, upon the redemption. {Stafford v. Wil- liams, 12 Barb. 240 ) All redemptions must be made at the sheriff's office of the county in which the sale took place ; and it is the duty of the oflBcer making the sale to attend at such office during the last day for making redemptions, and during the time thereafter in which such redemptions may be made. If the officer who made the sale is absent, then such redemption may be made to the sheriff, and, in his ab.sence, to the under sheriff or deputy, (Laws of 1847, ch. 410, § 3.) If a redemption is made before the last day of the fifteen months, the officer to whom it is made must forthwith file in the clerk's office a statement thereof (Id.; As regards the real estate that is exempt from sale on execution, chapter 260 of the Laws of 1850, (§§ 1, 2.) iirovides that in addition to the property now exemjit by law from execution, there shall he exempt by law from sale on execution, for debts hereafter contracted, the lot and buildings thereon, occupied as a residence and owned by the debtor, being a householder and having a family, to the value of $1000. Such exemption shall continue niter the death of .such householder, for the benefit of the widow and family, some one of them continuing to occupy such homestead, until the youngest child becomes twenty one years of age, and until the death of the widow. To entitle a party to this exemption, the conveyance must show that it is designed as a homestead ; or a notice of such intent "must be executed and recorded in the county clerk's office. No waiver of such exemption is valid unless the same is in writing, duly sub- scribed and acknowledged. (Id. Sef Ro^'ivsoi, \. IT'i/p", 15 N. Y. 489.) Such premises arc not exempt Crom levy and sale under execution issued in an action for a tort. {Lathron v fi'ri.rin: B'.l Barb. 390 ) The exemption under this net is not a lieu or incumbrance. {Ro'nnson v. Wiley, 15 N. Y. 489.;,) nor does it run with the land, so tli.it the debtor can transfer it to 860 Chap. 2.] I'ROCEEDIKGS SUBSEQUENT TO THE DECREE. 443 r.iiothcr. (^Sintfh v. Brarkett, 80 Barb. 571 ; Allen v. Cook, 26 id. 874.) Hcncu tlio judgment -will bind tlie premises, and be a charge thereon, which may bo s-lisliod as soon as the exemption ceases. (Id.) Laud, not to e.xceed one-fourth of an acre, set apart, and a portion of which lias been actually used, for a family or private burying ground, shall not be subject lo le\y and sale by execution or other legal "process whatever ; provided a description of said land shall have been made, certified and acknowledged in the manner required for the aclcnowledgment of deeds, and recorded in the county clerk's office. (Laws of 1847, chap. 85.) ^ettinc) aside sale. In Williams y. If^i^Hcrm.s, (42 How. 411,) where a judgment creditor, who resided at a distance, was detained, by accident and without fault on his i)art, and did- not arrive at the place of sale until some fifteen minutes after the sheriff had sold the property, upon one bid, for a nominal sum, subject to pre- vious liens, the creditor not being represented by any one, and the sheriff having waited only ten minutes after the advertised time, before selling ; it -was lield that the sale should be set aside, on a motion of the creditor ; it appearing that he would otherwise lose his claim. (13) Return of execution. Section 200 of the Code, provides that the execution shall be returnable within sixty days after its receipt by the officer, to the clerk with whom the record of judg- ment is filed. It is the duty of the sheriff to return process to the proper office. If he does not do so personally, he must see that it is done. If it be sent by mail, he must pay the l.)0stage on the letter containing it. If the postage be not paid, the clei-k is not obliged to take the letter from the post office. ( Tenkins v. Mi_ Gill. 4 How. Pr. 205.) An execution may be returned by mail, where the sheriff, or other officer making the return lives in a different place from fliat in which the clerk's office is situated. (Laws of 1850, ch. 225, § 3.) A sheriff may. on his own responsibility, return an execution within the sixty days, but he should never do so at the solicitation of the plaintiff: nor can the plain- tiff compel a return within that time. {Spencei' v. CiiyUr, 17 How. Pr. 157 : S. C. 9 Ab. 382. See, also, JSac/le v. James, 7 Ab. 234 ; Piidney\. GriifiUs, 6 id. 211 ; S. C. 15 How. Pr. 410 ; Fake v. JEdpertov , 5 Duer, 681 ; S. C. 3, Ab. 229 ; Moranqe V. BfhrardK, 1 E. D. Smith, 414.) But the plaintiff, or his attorney, may give the sheriff permission to retain an execution in his hands beyond the return day, for the purpose of endeavoring to collect the amount. (Humphrey v. Hathorii, 24 Barb. 278 ) What will amount to such permission. (Id.) The omission of the sheriff to indorse and file the proper return is an irregularity, which will not affect the rights of the judgment creditor. ( Winebrener v. Johvsoii, 7 Ab., N. S. 202.) A sheriff is entitled to pre-payment of his fees before the service of process ; but if he make.s the service, and thus waives the right of prepayment, he cannot refuse to make a return because his fees have not been paid. ( Wait v. Schooiimaker, 15 How.) Executions, to be valid, need not state the time or place of their return. (Fake v. Ednerton, 5 Duer, 681 ; S. C. 3 Ab. 229.) The mode of coin'pelling a return to an execution is prescribed by rule 10 of the supreme court. At any time after the day when it is the duty of the sheriff to return an execution, by the provisions of the Code, any party entitled to have it returned, may sei-ve upon him a notice to return the same within ten days, or show cause at a special term, to be designated in said notice, why an attachment should not issue against him. If the sheriff fails to return the execution within ten days after the service of such notice upon him, or to show cause at the time and place mentioned in such notice, why he should not do so, an attachment will be issued. A sheriff is bound, by law, to return an execution, according to the requisition of the statute, at his peril. If he neglects to do so. he renders himself liable to an attachment, or an action, at the election of the party aggrieved, and in all cases, the onus is on the sheriff to excuse the default. ( Wilion v. Wright, 9 How. Pr. 459.) But where an order was made staying proceedings upon an execution in the bands of the sheriff, and the plaintiff's attorney served upon the sheriff notice reqiiiring him to return the execution within ten days, or show cause why an attachment should not issue against him, for contempt, it was held that the .sheriff was exonerated from the duty of returning the execution, if the stay continued in force up to the expira- 861 445 PROCEEDINGS SUBSEQITEN-T TO THE DECREE. [Book II. tion of the ten days ; and that the plaintiff's attorney should furnish the sheriff with proof that the stay had been vacated, if he desired to bring the sheriff into contempt. {People v. Cariiley, 3 Ab. 215.) (14) Execution, generally; order of priority; duties asd li.vbilities of SHERIFF. The Code (§ 25)1) contains a general provision that, nntil otherwise provided by the logisUituro. the existing provisions of law not inconsistent with chapter 1 of title X, part 2, relating to executions and their incidents, the property liable to sale on exe- cution, the sale and redemption thereof, the powers and rights of officers, their duties thereon, and the liability of their sureties, shall apply to the executions prescribed by that chapter. Upon the receipt of any execution, it is the duty of the sheriff to indorse thereon the year, month, .day and hour of the day, when he received the same. (2 R. S. 364, §10) ' If there be several executions issued out of a court of record, against the same defendant, that which shall have been first delivered to an officer to be executed, shall have preference, notwithstanding a levy may be first made under another exe- cution. (2 R. S. 366, § 14.) But in case of a levy and sale under such other execu- tion, the sheriff should be governed in the distribution of the proceeds of such sale, by the order of priority in the delivery of the executions. That delivered first must he first satisfied. {Peck v. Tiffany, 2 N. T. 451 ; Howe v. HUhardso/i, 5 Barb. 585. See Kinpstoii Bank v. Bltinffe, 40 N. Y. 391.) If a judgment creditor, after issuing execution, instructs the sheriff to levy merely for the purpose of securing a preference, and to leave the debtor in possession of the property seized, such execution becomes dormant, and a subsequent execution in favor of another creditor, delivered to the sheriff before such instructions are revoked, has a priority of lien. (Dtitiderdale v. 8aii.-vestre, 13 Ab. 116 ; Knowerv. Barnard, 5 Hill, 377.) It is well settled that if an execution be accompanied by instructions, from which the fair inference is that the debtor is to be left in possession of the pro- perty levied upon, and the sale thereof delayed until rendered necessary by the pressure of other process, the execution becomes dormant. It must not be used as a cover. (Id.) There must be an absolute intention to collect the judgment in the ordinary legal mode. Where a levy is made to secure a preference, and the debtor jiermitted to remain in possession, and to exercise control, no such intention can be said to exist. (Id.) But a sheriff having several executions against the same debtor, received at different times, cannot be required to treat those first received as dormant, merely because the plaintiffs therein gave to the sherift" a written consent that he might adjourn a sale under them, for forty-seven days after their return day ; there being no agree- ment giving to the debtor a delay, or the use or benefit of the property in the mean- time. (Paton V. rVestervelt, 2 Duer, 362 ; S. C. 12 N. Y. Leg. Obs. 7.) Nor will the mere acquie.scenee of an execution creditor in the delay of a .sheriff in selling pro- jierty, where he does not direct such delay, render the execution donnant as to sub- sequent ones. But delaj's directed by the creditor will render the execution dormant as to subsequent purchasers and mortgagees, as well as executions. (Thompson v. Van Vechten, 5 Ab. 458.) If a sale be made on a dormant execution, while another and later execution is in the sheriff's hands, such sale is not void. (Richards v. Allen,, 3 E. D. Smith. 393 ; Peck V. Tiffany. 2 N. Y. 451.) In such a case, the plaintiff in the later execution may apply, on motion, to have the proceeds applied in satisfaction of his claim. (Id. ; fjwiderdale v. iSauvestre, 13 Ab. 116.) If an execution is suffered to lie dormant, the judgment does not cease to be a lien on the real estate of the judgment debtor. The doctrine in regard to dormant exe- cutions, refers to personal estate. (Muir v. Leitch, 7 Barb. 341.) In case a levy is made on an execdtion issued upon a bona fide judgment, before the filing of a petition of a creditor to declare a debtor an involuntary bankrupt, the claim of the judgment creditor to the proceeds of a sale thereunder has precedence over the claim of the assignee in bankruptcy. (Matter of Bernstein, 34 How. 289.) The plaintiff's attorney, in an action in which judgment is obtained, has no authority, as such attorney, to direct the sheriff what property to levy upon, on the execution. (Averi.ll v. Williams, 4 Denio, 295.) But in Root v. Wagner, (30 N. Y. 9,) the court say: "The party in whose favor process issues, may give such instructions to the sheriff as will not only excuse him from his general duty, but bind him." (See (Godfrey v. Gflbbons, 22 Wend. 569 ; McC.'iain v. MoKeon, 2 Duer, 645.) 863 Cliap. 2.] PROCEEDIXGS SUBSEQUENT TO THE DECREE. 44.5 \ A sheriff has no authority to levy on the property of any person except the one described iu the execution. (Farnham v. Hddreth. 32 Barb. 277.) He is not bound to any greater degree of diligence, respecting goods in his custody, than a bailee for hire, (ilom-e v. Westerrelt ,^ 25 How. 277 ; S. C. 21 N. Y. 103 ; 27 id. 234 ; 1 Bosw. 357 ; 9 id. 558.) The sheriff has only a special property in the goods levied on. {Pierce v. Kini^smlllj 25 Barb. 631.) A sheriff cannot enforce an execution to collect his fees, after the judgment ha.s been paid. (Cmft v. Merrill, 14 N. Y. 456.) A receipt, given to the sheriff, for property levied on under an execution, estops the receijitor from denying that the thing belongs to the execution debtor, only as against the sheriff and the creditor in that execution. (Whedoii v. C/iamvl'm. 59 Barb. 61.) ■* A sheriff should wait a reasonable time, before closing his sale ; and if there are no bidders, or if the plaintiff is not represented, and any bid made is inadequate to the value of the property sold, the sheriff should postpone the sale. ( WilUanis v )FiZiiam.lication for an attachment, to puuish a judgment debtor for disposing of moneys received by him aft-r the service of an injunction order in these proceedings, the creditor must show, affirraatlvnu/, that the money was already earned by, or d\ie to the debtor, when the order was served. If earned subsequently, the defendants had no right to receive and dispose of it. (Cferregani V. Whe/'lu-rlgM. 3 Ab , N. S. 264 ; Putter v. Loir. 16 How. Pr. 540.) A judgment recovered by a debtor against his creditor, for an unlawful levy upon, and sale of, exempt property, c.iniiot be reached by the creditor through proceed- ings supplementary to execution. Such judgment represents the property for the value of which it was recovered. The proceeds of the judgment will be protected as exempt property, until sufficient time has elapsed to afford the debtor a reason- able opportunity to again purchase the exempt property. (Tdlotsoii v. Wolcott, 48 N. Y. 188)" A watch is property liable to execution. (TAe Deposit National Bank v. Wckliam, 44 How. 421.) Appointing receiver; proJdMting transfer; &c., of deltoids property; powers and duties of receiver ; how constituted and dlreded, &c. There is no incompati- bility between the remedy afforded by § 298 of the Code and that authorized by § 29". They are granted on dift'erent states of facts, and are cumulative. (Heroy v. (? /\9o», 10 Bosw. 591.) The power to entertain, continue and conduct supplementary proceeding under § 298, &c., is a mere statutory autboritj' — conferred, not upon the supreme court, but upon the judges, as separate judicial officers ; and must be strictly pursued. ( IVehber v. HolUe, 13 How. Pr. 382.) An action is pending in a couit, though judgment has been recovered therein, as long as such judgment remains nnsatisfied ; and upon an execution being issued thereon, and returned unsatisfied, supplementary proceedings may be instituted, and a receiver appointed. (We'/man v. Childs, 41 N. Y. 159.) A receiver may be appointed where the examination discloses only an estate of tenancy by the curtesy, (Beamish v. Hoyt, 2 Rob. 307 ; ) or an equity of redemption in real property. (Baile'i v. Lane. 15 Ab. 373, n.) An application for a receiver should always be made, where an injunction has been granted, restraining the debtor from transferring or removing his property ; and this irre- spective of the question of the existence of any property. {Lent v. McQueen, 15 How. Pr. 313 ; Webb v. Onerman, 6 Ab. 92.) And where it appears from the examination, under 5 294, that it is doubtful whether the person who is alleged to owe the judgment debtor, or another individual, not under examination, is really indebted to the judgment debtor, a receiver should be appointed, to enable the creditor, or the party entititled to the right, to pursue the claim by action. (Corn- ing V. Tooker. 5 How. Pr. 16.) When a referee has certified his examination of the judgment debtor and others who are alleged to owe him, under § 294, to the judge, it is in the discretion of the judge either to make an order under § 297, directing the property of the judgment debtor, whether in his own or other's hands, to be applied upon the judgment; or, under the next section (298,) to appoint a receiver of the property of the debtor ; or both. The only restriction upon the exercise of this discretion is to be found in § 299, as applicable to certain specified cases. (Id.) An execution, issued on a judgment and returned unsatisfied, is all that is necessary to warrant an application for a receiver. (Lent v. McQueen. 15 How. Pr. 313.) Where the pioceedings are instituted under § 294, it is necessary to wait for the return of the execution unsatisfied before an application for the appointment of a receiver can be entertained. (Darrow v. Lee, 16 Ab. 215.) The creditor is entitled to have a receiver appointed, although the only property discovered by the examination of the judgment debtor is such as might be sold on execution. (Heroij v. Gibson, 10 Bosw. 591 ; Todd v. Crooke, 4 Sandf. 694 ; S. C. 1 Code Rep., N. S. 324 ; Miiers' case, 2 Ab. 476.) Where the examination discloses the possession of choses in action, or the exist- ence of a relation — e. g. partnership — which renders it probable that the debtor 878 Chap. 2.] PROCEEDINGS SVBSEQUENT TO THE DECREE. ^45 may Inve assets, a receiver should be appointed, even though the debtor deny that the property disclosed is of any value. ( Webb v. Overmann, 6 Ab. 92.) An opplication for the appointment of a receiver, in these proceedings, must be to tlie Judge who granted the order of reference and who appointed the referee to examine as to the property of the judgment debtor. No other judge, out of court, has power to mike the appointment. (^Ball v. CrooOenouqli, 37 How. 479 ; Hatch \. Weihni-i, 8 id. 163; /Smith v. Johvson, 7 id. 39.) This rule is applicable to county judges. (Id.) In theory, the application is made to the judge at the time the examination is taken, founded upon it, without any copy being made by, or for. either party. The examination is taken in the pre.^ence of the judge, and at its conclusion, the defendant being present, the plaintiff moves, upon it, at once. "When the examination is directed to be taken before a referee, the application is still made upon the original examination, but the defendant must have notice of the time and place. (Todd v. Crooke, 4 Sandf. 694; S. C. 1 Code Eep.. N. S. 324.) Where several creditors are proceeding against the judgment debtor, and one applies for the appointment of a receiver, the others are entitled to notice of the application, but not to a copy of the examinations on which it was founded. (Id.) The application to appoint a receiver is not a motion, within § 402 of the Code, so as to require a notice of eight days to be given, to another creditor. A shorter notice is sufficient. (L?pr/ett v. Sloav, 24 How. 479.) The judgment debtor should be personally served with the order to appear and answer, on the examination, and with notice of the application for the appointment of a receiver. (Barker v. Johvson, 4 Ab. 435 ; Dorr v. Noxon. 5 How. Pr. 29 ; Kemp V. Harding, 4 id. 178 ; Corning v. Tooker, 5 id. 16.) A receiver cannot be appointed under § 298, without such notice. (Andrews v. Cflenville Woolen Co., 11 Ab., N. S. 78.) A receiver may be appointed at any time after the supplementary proceedings authorized by § 292 have been instituted, and while the proceedings are pending. To give full effect to the proceedings, and to give the judgment creditor the full benefit thereof, he should promptly procure the appointment of a receiver. He is not obliged to wait until the examination of the judgment debtor is finished. (The People ex rel. Mtch v. Mead, 29 How. 860.) The Code requires that the order should be a chamber order, and that it should be filed with the clerk. (Ball v. Qoodenongh, 37 How. 479.) On an application for the appintment of a receiver, the court cannot go behind the judgment and execution, and inqiiire whether the judgment creditor was entitled to issue the execution. (Lent v, MeQueen, 15 How. Pr. 318. See Bing- ham V. Disbroic, 37 Barb. 34; S. C. 14 Ab. 451 ; 5 Trans. Ap. 198.) Where a judgment debtor appears before a referee, and submits to an examination, without objection, this will amount to a waiver of any irregularity ; and an order for the appointment of a receiver, founded on sucli voluntary appearance and waiver, will be valid, and cannot be affected by an objection to the jurisdiction, in an action brought by the receiver. (Bingham v. Disbrov\ supra.) Irregularities in the appointment of a receiver which do not affect the jurisdiction of the appointing judge, cannot be made available collaterally — as in an action brought by such receiver against a third person. (Tyler v. Whitney, 12 Ab. 465 ; S. C. 33 Barb. 827, sub nom. Ti/ler v. Willis.) The filing of the receiver's bond is necessary to the completion of the appoint- ment. (Banks v. Potter, 21 How. Pr. 469 ; Conger v. Sands, 19 id. 8 ; Voorhees V. Seymour, 26 Barb. 569, 582 ; Lottimer v. Lord, 4 E. D. Smith, 183 ; Wilson v. Allen, 6 Barb. 543 ; West v. Fraser, 5 Sandf. 653.) But if the receiver has given ample security upon his first appointment, there can be no occasion for requiring him to give security over again, in every proceeding which may be afterwards instituted. (Banks v. Potter, supra.) A receiver appointed in supplementary proceedings is thereby vested with the title to all the personal property of the judgment debtor, whether in his own hands or in the hands of others. (Bostwick v. Menek, 40 N. T. 383 ; Rogers v. Corning, 44 Barb. 229.) But it is otherwise as to property transferred or assigned by the debtor in fraud of creditors. Such an assignment is good against the receiver as merely the representative and successor of the judgment debtor ; and as repre- sentative of the creditor he has no greater right than the creditor himself, with reference to the property fraudulently assigned ; which right is to avoid and set aside such assignment, so far only as it shall be necessary to satisfy his debt and costs. (Id.) If the same person be appointed receiver in several proceedings for 879 445 rnocKKnixds sunsKQUKNT to thk decfre. [T?.>()k If. several creditors, he is tlieii trustee for them all, and clotlied with power to sci iisidc transfers frjudulent as agiinst them, but only to an extent s afficlfiit to satis f j their dcm.mds. (id ) Accordingly, where a receiver brought a suit to set aside an assignment by the judgment debtor, as fraudulent against creditors, it was hetd that his recovery against the assignee should be limited to an amount sufficient to cover the judgment and interest, together with the costs and interest, al; hough the assigned property in the hands of the latter was of much greater value, (id.) The title to the pe)-sonal, property of the judgment debtor passes to the receiver, without an assignment. (Bostioick v. Mpjuk. S'tpra; Moale v Ctiafs. 33 Barb. 408 ; O/Mutaujne Coiuiti Bank v. Misley, 19 N. T. 369 ; FoHer v Wdl'a-in.i, 9 id. 142 : P(ople v. Htdbert, 5 How. Pr. 440; S. C. 1 Code Rep., N. S. 75; 9 N. Y. Leg. Ohs. 245 ; C'noJiei/ v. Coonei/, 65 Barb. 524.) From the operation of this rule is excepted such property of the debtor as is by statute exempt from levy and sale on execution. {Coniiejj v. Coonei, 65 Barb. 524.) The judge cannot require an assign- ment of the personal propertv of the debtor. (^BaU v. Q-oodenougti, 37 How. 479 ; Te% Bweck v. Soo, 13 id 28; S. C. 2 Ab. 234 ; Htilsaver v. Wiles, 11 How. Pr. 446 ; People v. Htdhert, supra.) But, as to the reed estate of the debtor, it only vests in the receiver by virtue of a coiweijanee to him, which the court has power to compel. (Moak v. Coats, 33 Barb 498 ; 'Chavtauque Cotivt'i Bavk v. R^slev, 19 N. Y. 369, 374 ; T7ie People ex rel. Williams v. Hulbert, 5 How. Pr. 446 ; S. C. 1 Code Rep., N. S. 75 ; 9 N. Y. Leg Obs. 245. But see Porters. Williams, 9 N. Y. 142 ; S. C. 12 How. Pr. 107, contra. See, also, Beamish v. Hoyt. 2 Rob. 307.) A receiver appointed under § 298 does not become invested with the title to any property acquired by the debtor subsequent to the order of appointment. (Gh-aif y. Bonneit. 25 How. 470 ; S. C. 2 Rob. 54 ; 31 N. Y. 9 ; Becker v. Ton-awe, 31 N. Y. 691.) Nor to any property acquired after the order for e.\amination. {Campbell v. Genet, 2 Hilt. 290. See, also, Bostmrk v. Menek, 40 N. Y. 383, 385.) The title of the receivertakeseffect only from the time of his appointment. Hence, ■where the projierty of the judgment debtor was levied on by one of his creditors, a few days subsequent to the commencement of supplementary proceedings by another creditor, but before the appointment of a receiver, it was held that the lien of the levy was superior to that of the receivership. {Becker v. Torrance, 31 N. Y. 631.) The lien of the receiver on property that has been assigned does not begin at the time of his appointment, but takes effect only when an action is commenced by such receiver. (Field v. t-kmds, 8 Bosw. 685 ; Conc/er v. Sands, 19 How. Pr. 8.) Delay in taking possession of property, the title to which vests in the receiver on his api)ointment, does not of itself render the lien of the receivership inferior to that of a levy on an execution issued subsequent to the appointment of such receiver. So hehl whore there was a delay of ten months. {Fesssnden v. Woods, 3 Bosw. 550.) When the title to property has vested in a receiver, by virttie of his appointment, it is not in the power of the county judge, or of any judicial officer or court, to divest him of such title by a mere order in proceedings to which he is not a party. {Rogers v. Corning, 44 Barb. 229.) A receiver is not, in general, clothed with any right to maintain an action which the parties, or the estate, which he represents, could not maintain. He must show a cause of action existing in those parties, and that by the appointment of the court, lawfully mnde in a matter where the court had jurisdiction, the power has been c( n- ferred on him, in his representative capacity as receiver, to prosecute the acticn {Coope V. Bowles. 42 Barb. 88 ; S. C. 28 How. 10 ; 18 Ab. 442.) He must state, in his complaint, the equity of the parties whose rights, under the order of the court appointing him he represents, to maintain the action which he attempts to prose- cute. (Id.) To authorize a receiver appointed in supplementary proceedings, to ]irosecute an action to set aside an assignment made by the debtor, the judgment and other facts necessary to maintain supplementary proceedings, must be set forth. It is not enough to allege, in the complaint, that the plaintiff was appointed receiver in supplementary proceedings, (Id.) A receiver cannot recover the surplus of a trust fund, where the trust was created by a person other than the debtor. {Campbell v. Foster, 35 N. Y. 361 ; S. C. 16 How. Pr. 275.) But he may maintain an action against the judgment debtor for a conversion of the property vested in him by virtue of his appointment. {Gardner v Smith, 29 Barb. 68.) A receiver is subject to the order of the judge, and maybe required to account for the property which comes to his hands. The jurisdiction of the judge necessarily 880 CLap. 2.] procebdijVgs subsequknt to tre decree. 445 continues, until the judgment creditor is paid, or all tlie funds or property in the hands of the receiver applied on the Judgment are exhausted. The judge may order the application of such funds upon the judgment, and has control over the assets in the hands of the receiver, so as to charge them with the costs of the jirocecdings under § 301. ( Wehher v, Bobbie, 13 How. Pr. 383.) In Dukerson v. Van Tine, (1 Sand. 724,) where property found in the possessio:i of the debtor was claimed by another, the receiver was, ordered to release it to sucb claimant on the latter giving an undertaking to hold it subject to the order of the court. The order forbidding the transfer of a defendant's property, issued under § 298, is not called an injunction in the Code, and is a different proceeding from injunctions granted in an action, as a provisional remedy. {Gh-eeii v. Ballard, S How. Pr. 313 ) Although there should doubtless be some reason given in the affidavit, before the judge should forbid a transfer or other disposition of the property of a judgment debtor, yet the Code being silent as to what facts should be stated, each case should be disposed of by the exercise of the sound discretion of the judge. (Id.) The judge can only forbid the transfer of debts owing to the judgment debtor, until the receiver can have an oppoi-tunity to sue, (Ball v. 6foodeiwug?i, 87 How. 479 ; People ex rel. Williams v. Hulbert, id. 446 ; S. C. 1 Code Rep., N. S. 75 : 9 N. Y. Leg. Obs. 245.) The usual injunction in supplementary proceedings only affects property received, earned or due before the making of the order. (Atkinson, v. Semne, 11 Ab., N. S. 3S4.) Simply confessing a judgment is not a violation of the order issued under § 298. {Ross V. Clussmav, 3 Sandf. 676; S. C. 1 Code Rep..N. S. 91.) But it will be regarded as a violation of the order if accompanied by other acts indicative of an intent to change the title to the property to the prejudice of the creditor. (Id.) The indorsement of a check, given previous to the order forbidding any' transfer, is not a violation of the order, where such indorsement is all that is necessary to impart to the third person the authority to draw the money. {Ireland v. Smith, S How. Pr. 244 ; S. C. 1 Barb. 419.) Proceeding to judgment in a suit pending at the time of issuing the order, is not a violation of it. (Parker v. Wakemav. 10 P.iigc, iSo.) Nor is the consummation of a previous assignment of a right of action. (Michard- son V. RiLit, 9 id. 243.) To sustain an application for an attachment to punish a judgment debtor for dis- posing of moneys received by him after the service of an order, the creditor must show, affirmatively, that the money was already earned by, or due to. the debtor, when the order was served. (Grerregani v. Wheelrlgkt, 3 Ab., N. S. 264 ; Potter v. Low, 16 How. Pr. 549.) Money previously earned and due at the time of issuing the order, cannot be collected and applied to the purchase of family supplies, with- out subjecting the party to an attachment for contempt. (Taggard v. Talcott, 3 Edw. 628.) A county court has jurisdiction to order a receiver, appointed by it, in tliese pro- ceedings, to release to the debtor a judgment recovered by him for an unlawful seiz- ure and sale of exempt property. (Tillotson v. Wolcott, 48 N. Y. 188.) A judgment debtor, while the order made in supplementary proceedings is in force, has no right to violate it by transferring his property to employ an attorney to represent him in such proceedings. The creditor's lien is prior to that of the attor- ney. ( The Deposit Nat. Bank v. Wickham, 44 How. 421.) Proceedings upon claim of another part'i to property, or on denial of indelted- ness to .judgment debtor. Section 299 of the Code applies only to cases in which proceedings have been instituted under the provisions of the chapter containing tlnit section (§§ 292, 293, 294,) (&oodi/ear v. Betts, 7 How. Pr. 187 ; King v. Ta.sko, ) Duer, 635 ;) and where the validity of the claim, or the title to the property di.s- covered by such proceedings is disputed, are not clear. (Id.; Rodman v. Hevr ■. 17 N. Y. 482 ; Sherirood v. Buffalo & N. Y. Oiti/R R. Co. 12 How. Pr. 136 : Catlin V. Boughtfi, id. 457 ; People ex rel. Pease v. King, 9 id. 97.) It applies only In ictions against third persons ; not to those between the judgment creditor and the judgment debtor, only. (Catlin v. Donghtij. 12 How. Pr. 457.) The action to recover demands against third persons, or property claimed by them, can only be maintained b.v a receiver appointed under the provisions of the Code. (Edmonston v. McLoud, 19 Barb. 357.) In Catlin v. Doughtii, (supra,) however, it is said that the word ''only" applies to the j)hriise ''by action," and does not prohibit an action by the statutory creditor's bill. Vol. L— 50 881 445 PROCEEDINGS SUBSEQUENT TO THE DECREE. [Book II. ■WTien the claim to the property is disputed, or the indebtedness denied, the proper way is to restrain the defendant from transferring or disposing of such property. {The People; ex rel. Pease v. Kinq, 9 How. Pr. 97 ; King v. Tuska, 1 Dner, 035 ;) and have a receiver appointed. (Id.) But an order restraining a tliird person from disposing of property of the debtor cannot be made until such person lias been made a party to the proceeding. (King v. Taska, supra.) The court has no power to order a third person to pay over money or property, on the allegation that it belongs to the debtor, if his right is disputed. And a bailee who, in compliance with such an order, applies his bailor's property as if it belonged to the debtor, is not protected by the order. {Barnard v. Kobhe, 3 Daly, 373.) Referrence by jitdge. Sections 296 and 300 of the Code are ample to confer the power of appointing a referee at the same time that the order for an examination is made. The judge acquires jurisdiction of the subject matter, and of the person of the defendant, for all the purposes of the appointment of a referee, by the presenta- tion to him of an affidavit containing the facts required by § 292 to be stated in it, and by a motion of the creditor for the order. {Qreen v. Ballard. 8 How. Pr. 313 ; Conway v. Hitchws, 9 Barb. 378. But see Hatch r. Weyhurn, 8 How. Pr. IfiS.) On the defendant's appearing, and an examination being requisite before appoint- ing a receiver, the cause will be sent to a referee, selected by the parties, to examine the defendants, report thereon, nominate a receiver, and ascertain the .sufficiency ol' the surety. Upon his report, the court will appoint the receiver. {Jo7iss v. Lawliii, 1 Sandf. 722.) The referee possesses no control over the person of the defendant. He cannot compel an appearance, nor punish him for a disobedience of orders. He must report to the judge who appointed him. {Green v. Btdlard, supra.) The referee is to report the evidence, or the facts, to the judge who appointed him. {Hatch V. Wet/burn, 8 How. Pr. 163 ; Smith v. Joh7ison. 7 id. 39 ; Merriti v. Slo- cum, 6 id. 350.) , If he was appointed for the express purpose of reporting the facts, he must include the evidence at large. {Borr v. Nnxon, 5 How. Pr. 29.) Whenever the parties agree to a reference, it will be ordered, of course. ' And the matter will be referred when it is apparent that it will be a protracted investigation, and the examinants are attended by counsel. {Hullister v. tSpofford. 3 Sandf. 742.) The referee is to decide what effects are to be delivered, and should specify particu- larly as to the manner of delivery. And where articles are mixed, he should specify what are exempt, and what the receiver may take. ( Dickerson v. Van Tine, 1 Sandf. 724.) For it was not the design of the laws to allow the receiver to proceed and take what jjroperty he might choose. (Id.) The referee may, in his discretion, allow corrections or explanations to be made, by any party to the examination, even after it has been concluded and certified by him. {Coming v. Tooker, 5 How. Pr. 16.) An examination, in these proceedings, before a referee, when once closed, cannot be re-opened on the direction of the referee. It can only be opened on the special order of the judge. {Orr's case, 2 Ah. 457.) The power of the referee over the defendant is concluded with the conclusion of the examination. (Id. ; Hudson v. Plets, 11 Paige, 180; S. C. 3 N. Y Leg, Obs. 120.) Costs of proceedings.] Section 301 of the Code does not give the defendant costs, unless he has been examined. {Englev. Bonneau, 2 Sandf. 679; S. C. 3 Code Rep. 205.) And when no property is found, the creditor should pay costs to the debtor, or party examined, in like manner as if the former had prosecuted the latter, in an action and failed therein. {And. 11 Ab. 109 ; S. C. 1 Code Rep., N. S. 113 ; 3 Sandf. 725.) When a third per.son is examined, and no property is discovered, ho is entitled to the full amoimt, ($30,) mentioned in § 301. {Anon. 11 Ab. 108.) The application for costs cannot be made until the proceeding has been brought to an end in favor of the party applying. {Davis v. Turner, 4 How. Pr. 190.) The judge may order these costs to be paid out of the assets in the hands of the receiver, at any time before the final order disposing of such funds. ( Webber v. Hobble, 13 How. Pr. 382.) A witness examined before a referee, in these proceedings, is entitled to the statu- tory allowance of fees to a witness. {Davis v. Turner. 4 How. Pr. 190 ; Laws of 1840, chap. 386, § 8.) He is entitled to his fees for attendance, for Sunday, as well as any other day during the sitting of a cmirt. {iliuicott v. Riinge, 27 How. 85.) In Hulsaver v. Wiles, (11 How. Pr. 446.) where the order allowed a fixed sum for " counsel fee," and also a fixed sura for "witnesses' fees," but omitted the word.s " as costs," it was held sufficient. 882 Chap. 3.] PROCEEDTNGS SUBSEQUENT TO THE DECREE. 445 Disobedience of orders ; punisJimevt for.] Before an attachment can issne. under § 302 of the Code, to bring a party before the judge for disobedience of an order, it must be made to appear that the order was lawful, and that it was dulj' served. The manner of service should be stated. {Jje Witt v. Dennis, 30 How. 131.) Where tlie only proof of service of an order was by 'the affidavit of an attorney, who specified several such orders without giving copies of any of them, and stated that certain of them had been personally served by the sheriff"; it was held that this was not suffi- cient to grant an attachment. (Id.) A service of an order, made withont exhibiting the original order of the judge, is irregular, but not invalid, and cannot be entirely disregarded. The party served must object to the mode of service, by appearance, and his omission to do so will be regarded as a waiver. {Billings v. Carver, 54 Barb. 40.) Where the proceeding to punish for a contempt is commenced by an order to show cause why an attachment should not issue, the service is sufficient if made upon the defendant's attorney. (Pitt v. Dawson, 37 N. Y. 235; S. C, 34 How. 3.55; 3 Ab.. N. S. 398; 4 Trans. Ap. 266.) ■ " The proceeding to punish a party, under § 302, for disobedience, is a proceeding in the action, and not a special proceeding. (Seeley v. Black, 35 How. 369 ; Dresser V. Va7i Pelt, 15 id. 19 ; S. C. 6 Duer, 687.) Tliere are two modes of punishing a party for a contempt ; either by granting the attachment in the first instance, or by issuing an order to show cause why an attach- ment should not be issued. (Pitt v. Damso?!., 37 N. Y. 235; S. C. 34 How. 355 ; 4 Trans. Ap. 266 ; 3 Ab., N. S. 398.) An order to show cause is the usual mode of commencing proceedings under this section, in the first district. (Mattel' of Smet- hurst, 2 Sandf. 724 ; S. C. 3 Code Rep. 55 ; 4 How. Pr. 369.) An order to show cause why an attachment should not issue against a party for the violation of an order is not the foundation of the jiower to commit. The jurisdiction is derived from the original order which has been disobeyed. (Mqers v. James, 3 Ab. 301.) the pajiers on an application for an attachment are usually entitled in the action. (Pitt v. Davison, supra.) Yet they may be entitled " People ex rel. v. " (Brown v. Andrews, 1 Barb. 227 ; People ex rel. Young v. Craft, 7 Paige, 325 ; Stafford v. Bnncn, 4 id. 360.) In case of an attachment against a witness, or one not a party to the suit, it was the practice, always, to entitle the papers according to the latter mode, in all proceedings subsequent to the attachment. (Stafford v. Brown supra.) On an application for an attachment, affidavits setting forth the grounds of such application should be presented, and a copy thereof should be served with the attach- ment. ( Ward V. Aj-enson. 10 Bosw. 589 ; 3iatter of Smethurst, 2 Sandf. 724 ; S. C. 3 Code Rep, 55 ; 5 How. Pr. 369.) The attachment should be made returnable before the judge who granted it. (Kelly v. McCormick, 28 N, Y. 318 ; S. C. 2 E. D. Smith, 503 ; Dresser v. Van Pelt, 15 How. Pr. 19 ; S. C. 6 Duer, 687 ; Sheppard v. Dean. 13 How. Pr. 173 ; S. C. 3 Ab. 424 ; Mattel- of Sinethurst. 2 Sandf 724 ; S. C. 3 Code Rep. 55.) And not before a judge at chambers. (Id.) But if the judge before whom the attachment is returnable happens to be holding a special term at the time the party is brought before him, this does not render the proceeding or process void. (Id.) An irregu- larity in making the attachment returnable before the wrong judge, or in the wrong manner, is not sufficient to render the proceeding void ; it is simply voidable. (Kelly v. McCormick, supra.) The witness against whom an attachment issues should be furnished with a copy of the interrogatories, when the contempt is denied, if he requires such copy. (De Witt V. Dennis, 30 How. 131.) But if the defendants are before the judge, on an order to show cause, and have been served with the affidavits and the order, and have full opportunity to answer, the interrogatories need not be filed. (Lathrop v. Clapp; 40 N. Y. 335 ; Pitt v. Davison. 37 id. 235 ; Wn.twn v. Fitzsimmons, 5 Duer. 629.) A party who violates an order forbidding the transfer. &c., of property, by confess- '" ing judgment to another for a fictitious debt, thus creating a lien upon his real estate in another state, is guilty of a contempt, and finable to the amount of the judgment. (Fenner v. Sanlorn, 37 Barb. 610.) So if the judge finds the defen- dant able to pay the judgment, and orders him to pay the same within a specified time, and also to pay an amount of costs stated, if the defendant fails to comply with such order, he may be proceeded against as for contempt ; and may be imprisoned until such order be complied with. (Brush v. Lee. 6 Ab., N. S. 50 ; People ex rel. Prase v. King, 9 How. Pr. 97.) It is not necessary that the proceedings be instituted by 883 445 FROCKKDTXGS SVBSHQUEXT TO THE DECREE. [Boolc II. attachment and interrogatories. Disobedience to an order for the payment of money may he immediately punislied by a precept for the imprisonment of the defendant. But if an order to show cause be talcen, the defendant is not entitled to object to that mode of proceeding. (Id.) On tlie return of such an order to show cause, lie can- iiot insist on interrogatories, as in case of an attachment. (Id.) Upon an application for an attachment to punish a person for disobedience of an order forbidding the transfer of funds, it is necessai'y to show that such money was due to, or earned by, such person at the time of the service of the order. (Gerregani V- W/ieelvrlgM, 3 Ah., N. S. 264.) One who draws money from a bank, and applies it to the use of himself or family, after the service of an order forbidding any transfer, &.C., of any funds, is liable to punishment therefor, although the fund in the bank was marked '' in trust." (People ex Tel. Noel v. King.sland, 5 Ab., N. S. 90 ; S. C. 3 Keyes, 325 ; 1 Trans. Ap. 270.) An order requiring a person to pay a fine or be committed, although informal, and not specifying cljarly the grounds thereof, will be upheld ; especially if there are accompanying papers showing that the party was convicted of having paid away money in violation of an order. {Reynold.^ v. McEVhone, 20 How. Pr. 454.) The bond, given under an attachment, requires two sureties ; but if only one surety is given, it will not be void, but only in-egular. {Morton v. Campbell, 14 Ab. '410 ; S. C. 87 Barb. 179.) But if the sheriff allows the prisoner to go, on such a bond, he is liable for an escape. (Id.) A bond, conforming to the requirements of the statute, with the exception of the omission of the seals, will be sustained, in an action thereon. {Kelhj v. McCorvdck. 28 N. T. 318.) Disobedience of a subpoena, directed to a witness, requiring him to attend before a county judge and testify, in these proceedings, cannot be puni.shed by such county judge, where the judgment Was entered in the supreme court. {People ex rel. Bru- nett v. DutcTier, 3 Ab.. N. S. 151.) An order for commitment, which does not state the particular misconduct or offence to be punished, is void. {DeWitt v. Dennis, 30 How. 131.) But an order to punish a witness for contempt, in not answering before a referee, need not specify that the proceedings have been impeded, impaired, prejudiced or defeated by such misconduct. (Lathrop v. Ciapp, 40 N. T. 328 ; S. C. 23 How. 423.) In Billing.'! v. Carver, (54 Barb. 40,) where a defendant was adjudged guilty of a contempt in failing to appear and submit to an examination, as to his property, it being shown that such failure was caused by the advice of counsel, given in good fdith. and in good faith relied upon by the defendant, the order was modified, so as to direct that the defendant be adjudged guilty of the contempt charged, and be fined, unless he appeared and submitted to an examination, under the original order, and made an affidavit to the effect that he had made no transfer of his property, since the order for his examination, except and unless under the provisions of the banlt- rupt act. Questions aft'ecting the validity of the order disobeyed cannot be raised for the first time in opposition to a motion to commit for a conteu.pt. They should be raised by the defendant on a motion to set aside the proceedings. (Hilton v. Patterson, 18 Ab. 245.) On a motion to commit for a contempt for disobedience, the only ques- tions that can be raised are those affecting the regularity of the proceedings under the order, and the excuse for disobej'ing it. (Id.) The abolishing of imprisonment for the non-payment of costs, does not apply to a judgment debtor, in supplementary proceedings who is in contempt for not paying a judgment and costs under an order previously granted. ( The People ex rel. Kear- nerj v. KelUi, 22 How. 309.) By the provisions of § 297, of the Code, which author- ize a judge to order any property of a judgment debtor, due to him, to be applied to the satisfaction of the judgment, and of § 302, which authorize a person disobeying an order of a judge, to be punished as for a contempt, it was not intended to revive the remedy of imprisonment for debt ; and under those provisions a jndge has no authority to direct the imprisonment of one owing a debt to a judgment debtor, ;iud who is unable or declines to pay. ( West Side Bank v. Pugsley. 47 N. Y. 368.) The word ■'■ property," as used in § 297, does not include debts, but is hmited to goods or specific money ; and when these belong, indisputably, to the judgment debtor, a refusal to deliver them over as ordered would be a wilful contempt, and punishable as such. (lb ) The provision of § 302 of the Code, bestowing upon the judge before whom sup- plementary proceedings are commenced, the power to punish disobedience to his order, made therein, does not deprive the court of its general power to punish such 884 Chap. 3.] PROCBEDINGS SUBSEQUENT TO THE DECREE. 44g CHAPTER III. PROCEEDINGS UNDER DECREES AND ORDERS. Sect. 1. IJpoir Issues at Law. I. Issues undee the Act of 1839. II. Feigned Issues. 3. Fob ais- AcTioif at Law. 3. Pkoceedings in the Master's Office. 4. Master's Report. SECTION L proceedings upon issues at law.(1) The various cases in whieli orders for issues at law may be allowea, •md the proceedings to obtain such orders, we do not intend to enter into the consideration of, in this place. Reserving those branches of the subject for a future chapter, it is proposed to speak in this section, of the proceedings under decrees directing issues at law, from the time, of the granting of the order for such issues. disobedience. {Kearney's ease, 13 Ab. 459; S. C. 22 How., sub notn. People v Kearneii.) A judgment debtor, while the order is in force, has no right to violate it bj' trans- ferring bis property to employ an attorney for him in the supplementaiy proceedings. The creditor's lien is prior to that of the attorney. (^The Deposit National Bank V. Wiekham, 44 How. 421.) (1) The Code (§ 253) directs that an issue of law shall be tried by the court, unless it he referred, as provided in sections 270 and 271. An issue of fact, in an action for the recovery of money, only, or of specific real or personal property, or for a divorce from the marriage contract on the ground of adultery, must be tried by a juiy, unless a jury trial be waived, as provided in § 266, or a reference be ordered as provided in §§ 270 and 271. Every other issue is triable by the court, which, however, may order the whole issue, or any specific question of fact involved therein, to be tried by a jury, or may refer it, as provided in §§ 270 and 271, (1 Code, § 254.) Rule 40 of the supreme court provides that in cases where the trial of issues of fact is not provided for in § 258 of the Code, if either party shall desire a trial by jury, he shall, within ten days after issue joined, give notice of a special motion to be made upon the pleadings, that the whole issue, or any specific questions of fact involved therein, be tried by a jury. It has been held that title VIII, chap. 3, part 2 of the Code, relating to trial by jury, does not apply to the trial of issues in an equity action, but only to trials in 885 446 PROCEEDINGS SUBSEQUENT TO THE DECREE. [Book II. CDminon law actions. {Hatch v. Peuguet, 64 Barb. 189.) In an equity action, even wiieru certain issues liave been submitted to a jury, still the action is to be tried by the court, and chapter 4, of the same title applies. (Id.) On the trial of an issue of fact, in an equity case, the judge may submit to the jury such additional issues as are essential to bring to the view of the court, all tlie facts material to a just and intelligent decision. {Farmers' & Mechanics' Bank of U-enesse v. JosLijn. 37 N. Y. 353. See Code, § 261.) It has been said that rule 40 of the supreme court, obviously contemplates an application to the court, for the settlement of issues in all cases where a trial by jury is to be hid, in an equitable action. (Van Sant. Eq. Pr. 264.) Yet it has been /iKld that the court has still the power, at the trial, as under the former practice, to order the whole issue, or any specific question of fact involved therein, to be tried by a jury, whether a prior application for issues has been made or not. (Church V. Freeman., 16 How. Pr. .394.) Though the power, therefore no doubt-exists, to order an issue of fact, in an equity case, on the trial and without previous notice, to be tried by a jury, and is sometimes exercised, yet the safer course, in all cases, if either party desires such trial, is to move for a settlement of the issues within the time required by the rule. (Van Sant. Eq. Pr. 265. See Wood t. Harrison, 2 Sandf. 265.) The motion for an issue may be made by any, or either of the parties to an action. '\yhen there are several defendants, united in interest, however, it should be made by all those who are so united. And notice of motion should be given to the attorneys of all the other parties who have appeared. (Id.) The granting of issues is by no means a matter of course, but is now, as formerly, entirely discretionary with the court. (Church v. Freeman, 16 How. Pr. 294 ; Apthorpe v. Comstock, 2 Paige, 482.) In an equity case — except a suit for a divorce — a jury trial is not a matter of right. The judge may try all the issues, or he may, either upon the application of counsel, or upon his own motion, send any question upon which he prefers the judgment of a jury to that tribunal. From an order settling issues in an action of that character, no appeal lies. ( Woodv, The Mat/or, tt-f., of New York, 4 Ab., N. S. 152 ; S. C. 3 id. 467.) The whole purpose of framing an issue, and ordering it to be tried by a jury, is to inform the conscience of the court, and the equity judge may regard or disregard the verdict, may order a new trial of that issue, or a trial of an entirely different one ; or he may proceed to hear the whole case himself. (Id.) AYhere both legal and equitable causes of action are embraced in the same com- plaint, the judge, on the trial being moved, at special term, must determine whether any of the grounds upon which a recovery is sought are such as at the adoption of the constitution, were redres.sed solely by an action at law, and if so. should refuse to try the cause without a jury. Should he decide erroneously, and proceed to try a cause without, which should bo tried by, a jury, it would not operate as a waiver of any of the legal rights of the plaintilf. And should the plaintiff fail to show himself entitled to any equitable relief, but should show a right to legal relief, the judge should not dismiss the complaint, but still order the cause to be tried by jury, as an action at law. (Dams v. Moi~i-is. 36 N. Y. 569 ; S. C. 35 Barb. 227 ; 3 Trans. Ap. 226.) Where, in an action between partners, to settle copartnership matters, it becomes evident to the court that the several interests of the parties will, on the trial, involve much contradiction, perhaps questions of veracity, of mistake or fraud in the drawing of the papers, &c., and the question is one which business men, accustomed to examine facts, should decide, the court will direct the issues to be tried by a jury. (Clark v. Brooks, 26 How. 285.) And it is no objection to the granting of a proper application of that kind, that it is not made within ten days after issue joined, as provided by the rule of court. (Id.) But the application must be made before the trial has commenced ; or it will be too late. (People v. Albany & tiusiiishanna R R. Co. 7 Ab., N. S. 265 ; S. C. 38 How. 228 ; 55 Barb. 344 ; O'Briev, v. Bou-cs, 10 Ab. 106 ; S. C. 4 Bosw. 657.) The court, however, may, for its own relief, at any time before the trial of the issues, invoke the aid of a jury, for their determination,, or for the determination of any question of fact involved therein. (Id.) Under § 261 of the Code, it rests in the discretion of the presiding judge, at the trial, to submit such questions to the jury as, at the time, he thinks proper ; and if, upon appeal, it appears evident that upon the whole verdict the respondent is entitled to judgment, the circumstance that, in addition to a finding upon material questions, there is also a finding upon some that are not material to any determination to be made by a jury, ought not to vitiate the verdict upon the questions properly submitted to them. (Forest v. Forest, 3 Ab. 144 ; S. C. 6 Duer, 102.) 88G Chap. 3.] FRovEMDnxGS subsequent to the decree. 44g It may be premised, however, that there are two methods of trying, in courts of law, issues joined in this court, viz., by feigned issues awarded in the old way, at the hearing, and by issues at law, under the act of May 2d, 1839. The chancellor has decided that that act does not deprive the court of the power it formerly possessed, to award an issue at the hearing, upon pleadings and proofs, where a material fact is rendered doubtful in conseC[uence of conflicting testimouy.(a) I. OF ISSUES AT LAW UNDER THE ACT OF 1839. Omitting, for the present, all the previous proceedings, we commence with the Order for issue.] The 67th rule provides, that if the form of the issue to be tried is settled by the court, the order for such issue shall state the several questions to be passed upon by the jury, and the names of the parties to the issue, and which party is to be considered as hold- ing the affirmative upon each question to be tried. Filing copy of order.] Upon the filing of a certified copy of such order, with the clerk of the circuit court, or other court before which the trial is directed to be had, such court is to be deemed to be fullv possessed of the cause for the trial thereof, in the same manner as if a formal record of a feigned issue had been made up and sent into such court to be tried.(J) Noticing cause for trial.] Either party may give notice and bring on the trial, unless the trial is put ofi" by the court on sufficient cause shown, as in other cases.(c) Neglect of party to appear, <&c.] If the party holding the affirmative of such issue neglects to appear, or to give evidence in support thereof, a verdict may be taken in favor of the advei-se party.(cZ) But the pro- bability of the absence of the complainant's counsel, at the time of the trial, has been held a reasonable ground for putting it ofl'.(e) Reference to a master to settle issues. If it is referred to a master to settle the form of the issue or issues to be tried, he must settle the same (ffl) New Orleans Gas Light & Banking Co. v. Dnillej', 8 Paige, 452. (6) Knle 67. (c) Idem. (d) Idem. (e) Bearblook v. Tyler, 1 Jac. & W. 223. In an action for divorce on the ground of adultery, wliere issues are raised by tlie pleadings themselves, it is not necessnry to frame i.<:sues to be tried by a .jury ; but the issues joined by the pleadings may be tried. ( Parker v. Parker, 3 Ab. 478.) An order directing the trial of issues as ii substitute for a feigned issue is not an action. {Snell v. Lotickn, 12 Bjrb. 383 ) 887 447 PROCEEDINGS SUBSEQUENT TO THE DECREE. [Book 11. in the form of interrogatories to be answered by the verdict of the jury. Such interrogatories are to be stated at length in his report; and lie must also state which party is to be considered as holding the affirma- tive of each question, or issue, upon the trial.(/) (2) Where, upon a reference for the purpose of settling issues and deter- mining in what county the trial should be had, each party swore to a great number of material witnesses residing in the counties where the parties respectively desired to have the issued tried: but they did not state, in their affidavits, the matters they expected to prove by such witnesses, it was held, that the master should have rejected, or disre- garded, these affidavits on both sides. Or that he should have called the parties before him and examined them on oath as to the matters they expected and believed they would be able to prove by the witnesses respectively, and as to the grounds of such belief (^) So, in an affidavit of the number and materiality of witnesses, in reference to the proper place for the trial of issues directed by the court, the party must state the substance of what he expects and believes he will be able to prove by the witnesses respectively; to enable the court or master to judge of their materiality.(7i) Filing copy order, and mastei''s report.] Upon filing a certified copy of the order directing the issue, and of the master's report after it has become absolute, or has been confirmed, upon exceptions, the court (/) Kule 67. Cg) Meach v. Chappell, 8 Paige, 135. (A) Meach t. Chappell, 8 Paige, 135. (2) Rule 40 of the supreme court provides that with notice of a motion that the whole issue, or any specific questions of fact involved therein, he tried by a jury, shall be served a copy of the questions of fact proposed to be submitted to the jury for trial, and in proper form to be incorporated in the order. And the court or judge may settle the issues, or may refer it to a referee to settle the same. Such issues must be settled in the form prescribed by § 72 of the Code. The rule also provides that in all actions for a divorce, when issue is joined by the pleadings, upon the question of adultery, such issue shall not be tried by a jury until the issue to be tried shall be settled, in like manner as in other actions where issues arising out of the pleadings are required to be settled. In the settlement of issues in a divorce case, the judge should not allow an issue as to whether the party was guilty of adultery with a specified person at any time before the commencement of the action. If the issue does not limit the time and place, it is defective. (Strong v. Strong, 1 Ab., N. S. 23-3 ; S. C. 3 Rob. 675.) But issues actually made in the pleadings, and inserted accordingly, without objection, in the i.ssues as framed for trial, will not be expunged on motion, on the mere ground of indefiniteness as to time and place. (Id.) In suits for divorce on the ground of adultery, feigned issues should be made up only for the trial of facts contested by the pleadings, such as are expressly alleged on one side and denied on the other. (Mnrrellv. Mon-ell, 3 Barb. 236; Pore.'it'v. Forest, 3 Ab. 144 ; S. C. 6 Duer, 102.) The Code has not rendered it necessary or proper that the question of alimony .should be submitted to the jury. The amount of alimony, and the proper order for the custody and maintenance of the cliildren, are matters for the consideration of the court. (Id.) 888 Chap. 3.] PROCEEDINGS SUBSEQUENT TO THE DECREE. 448 before which the trial is directed to be had shall be deemed to be pos- sessed of the cause.(i) In what court issue to be tried.] An issue at law may be tried either before a circuit court, a court of common pleas, mayor's court, or the superior court of the city of New York.(yl) Under the above section of the statute the court has power to direct the trial to be had in any county of the state, according to the conven- ience of the parties. The court will, therefore, at the time of granting the order, either designate the place of trial in the order, or direct the master to inquire and report in what court and county the issue ought to be tried. The revised statutes contain a provision that all issues of fact which shall be joined in the court of chancery, and which shall be seut to the supreme court for trial, shall be tried at a circuit court, or sittings of the supreme court, in the proper county; unless the supreme court shall, on the motion of either party, in cases of great difiBculty, or which require great examination, order such trial to be had at the bar of the said court.(Z) (3) (t) Rnlc67. (fc) Laws on839, p. 292, } 2. W 2 E. S. 409, i 1. (3) The Code (§255) directs that all issues of fact, triable by a jury, shall be tried before a single judge. Issues of fact, in the supreme court, must be tried at a circuit court, when the trial is by jury, otherwise at a circuit court or special term, as the court may by its rules prescribe. Issues of law must be tried at a circuit court or special term, and shall, unless the court otherwise directs, have preference on the calendar. Section 270 provides that all or any of the issues in an action, whether of fact or or law, or both, may be referred, upon the written consent of the parties. And section 271 authorizes compulsory references for the trial of issues, in the cases therein specified. It has been held that the written consent to refer an action for divorce, required by § 270, is sufficient when the attorney for one of the parties draws an order of refer- ence in the following form, and the attorney of the adverse party approves of the same: " Upon the consent of the attorneys for each of the above parties, given in open court, it is ordered that this action be and the same is hereby referred," &c. ( Waterman V. Waterman, 37 How. 36.) The consent may be written by the parties, or their attorneys, or the clerk entering their consent in the minutes of the court, or by the referees in their minutes ; such consent being made before them. The parties may also waive, by their acts, any further writing than the entry on the minutes of the referee, if more were otherwise necessary. (Laycroft v. Fowler, 7 How. Pr. 259. See Siddell v. Diddell, 3 Ab. 167) A consent in writing is necessary to refer issues, in all cases iu which the court may not compel references ; and hence a written consent is just as necessary to a valid reference under the Code as to a valid reference under the statutes relating to the reference of claims against executors and administrators. {Bucklin v. Chapin^ 35 How. 155; S. C. 53 Barb. 488.) In Simmovs v. Simmons, (3 Rob. 642,) it was held th^t the court is not at liberty to divest itself of its obligations as guardian of the rights of married women, so far as to delegate the trial of an action for divorce to others ; and that an order of reference " to try and determine the issues," in such an action, cannot be granted, even by consent. 889 449 PnOCEEDIlSiGS SUBSEQUENT TO THE DECREE. [Book IT. Admissions.] In directing an issue, tlie court will order the parties to malte sucli admissions as are necessary to raise tlie question to be determined. (m) Production of papers.] It will also order the parties to produce, at the trial, all documents in their possession, custody, or power, which the other parties may require or which the court may think necessary for a complete inyestigation ;(?j) and if such order does not form part of the original order directing the issue, it may be obtained afterwards, upon motion. (o) In The Earl of Fingal t. Blalce,{p) an issue devisavit vel iion being directed at the hearing, the lord chancellor, although he thought him- self bound to follow the authorities, in the terms of his order upon the devisees to lodge papers, by confining it to papers relating to the matter, expressed an opinion that that comprised almost all papers, private letters, and memoranda of the testator; inasmuch as inferences might be drawn touching the state of his mind, or the influence exercised over it from apparently trifling or immaterial entries; declaring his prefer- ence, if the point were open, of an unqualified order for all papers of the testator, indiscriminately. The court will order documents which are in the possession of another defendant to be produced on the trial of an issue ;(§') even though such defendant declines to be a party to the issue.(r) But although the court has power over every party in the cause who is interested in the question to be tried, to compel such production as may be necessary for a complete trial, such production will not be ordered of documents which the party holds in a distinct character, such as mortgages, &c.(s) In a case however, 'before the court of exchequer, the defendants in a tithe suit were ordered to produce, at the trial of an issue, deeds produced by them at the hearing, though belonging to their landlord, who was not a party, or to admit, at the trial, the facts which the deeds were produced on the hearing to prove.(^) It is to be remarked that the ordinary order for the production of books, papers, and writings before the master, will not be sufiBcient to compel their production at the trial. Such production must be specially ordered, and usually forms part of the order directing the (m) Fenwiok v. James, Seaton on Decrees, S18. («) Carte v. Horlpkin, id. 342. (o) Marsh v. SihbaUl, 2 Ves. &B. 375. (p) 1 Molloj', 158. (5) Marsh V. Siljbald, s?ipra. (r) rindar v. Smith, Mad. & Geld. 48. («) Id. ib. («) Paliey r. HUton, 10 Price, 118. 890 Chap. 3.] pROOEEDiNos suBSEquEiyr to the decree. 450 issue. Wliere that is not the case, a special application must be made to the court.(«) It has been decided in Virginia that any papers may be read at the trial of an issue which were read upon the hearing of the cause, or at a former trial.(i') Examination of parties.'] Some doubt appears to exist with respect to the right of the court, when it directs an issue, to order the parties themselves to be examined, without their consent. The act of May 2d, 1839, and the rules of the court, are silent upon this point. Instances occur, however, in the books, in which orders for such examinations have been made;(z«) and again there are others in which they have been refused. (ar) Upon looking at these cases, however, it will be found that the rule is against the examination when the issue is directed at the hearing of the cause, or upon further directions; unless the party is merely a nominal one. But that, where the issue is directed upon an interlocutory application, on the ground that the affidavits on both sides are conflicting— as where an injunction is asked for upon the affi- davit of one party, and opposed upon that of another, and an issue is in consequence directed — there it is considered quite fit that they should both be examined. (?/) Where the court directs a party to be examined as a witness, no objection is waived, except that which arises from his being a party in the cause ;(«) and the meaning of the order is not that he should be a witness for the party himself, or for the other side, but that he should be a witness for the court ;(a) in fact that he should undergo a viva voce examination for the purpose of eliciting the truth more clearly than can be done by affidavit or depositions in writing.(5) ISpecial jtiry.] By the English practice, if either of the parties require a special jury, a motion for one should be made to the court of chancery.(c) View.] Where lands are in question, the court will sometimes order the jury to have a view; and where they are to have a view of a par- ticular manor, the court will order them, in some instances, to take a view of the whole, and ascertain the bounds of it.(tZ) («) Marsh v. Sibbald, 2 Ves. & B. 275. (») McCaU V. Graham, 1 Hen. & Munf. 13. (w) Vide Ex parte Oister, Buck, 231. 4 Mad. 236. DeTastetv. Bordenave, Jao. S18. Perkins V. Minohin, 2 Moiloy,24. (X) Vide Howard v. Braithwaite, 1 Ves. & B. 374. (y) DeTastetv. Bordenave, s?/:?™, 2 Dim. Pr. 789. (s) Eogerson v. "Whittington, 1 Svvaiist. 39. («) DeTastet v. Brodenavo, supra. (B) 2 Dan. 740. {c\ Anon., 2 P. W^ms. 68. (d) Prac. Beg. 263. 891 451 PROCEEDINGS SUBSEQUE^TT TO THE DECREE. [Book li. Defendant to name an attorney.l According to the practice in the Enghsh courts, it is the duty of the defendant in the issue to nams an attorney to appear for him in tlie court of law in which it is to be tried; and if he neglects to do so, an order may be obtained that he name an attorney in four days; and that in default, the issue be takeu as tried and a Terdict given for the coniplainant.(fi) Judge bound to try issue.\ A judge at law before whom an issue has been ordered to be tried has no authority to decline trying it, or to refer it to another mode of trial, e. g. by arbitration. But if the parties think proper to refer it to arbitration, and a reference is adopted by consent, the effect is to abandon not merely the direction to try the issue, but the whole proceeding.(/) Proceedings upon trial.] The course of proceedings upon the trial of an issue is generally the same as that adopted in ordinary trials at law; except where the court of chancery has given some special direc- tions upon the subject.(^) Examination of witnesses. It is to be observed, however, that where a devisee seeks to establish a will of real estate, against the heirs, the rule of the court requires that the due execution of the will should be proved by the examination of all the attesting witnesses to it who are in existence or capable of being examined; and that the same course is also necessarily required upon the trial of an issue devisavit vel nan j(h) except when the circnmstances are such that, by the common rules of evidence, proof of the witness' hand-writing may be substituted for the testimony of the witness himself; as where the witness is dead or abroad, or is insane ;(t) or where, after diligence search, he cannot be found.(^) The rule above mentioned requiring all the witnesses to a will to be examined, applies, however, in general, only to the case of a bill filed to establish a will, and an issue directed by the court thereupon. Where the bill was filed by the lieir at law, to restrain the devisee from setting up a legal estate as a bar to an ejectment, upon the hearing, and an issue devisavit vel non was directed — in whic'h the devisee was plain- tiff — upon a motion for a new ti'ial, on the ground that all the attest- ing witnesses had not been extimined, it was held that the case stood upon a ground directly opposed to that upon which the ordinary cases (e) Wilson V. Ginger, 2 Diik, 321, (/) Woortlev V. Johnson, 1 iMollov, ^,94. (q) 2 Dan. 742. (A) Id. ib. Townsend V. Ives, 1 Wils. 2in. Ojjlc \. Cook, 1 Vcs. 17S. Enllen v. Michel. I Price. 399. Bontle v. lilniidell. la Vi-s. VM. (i) Powell V. Cleaver, -2 J'.ni. C. C. .n03, .5 Vci. +04. 9 id. 381. (k) James V. Parnell, Tnr. it Rnas. 117. 892 Chap. 3.] PROCEEDINGS SUBSEQUENT TO THE DECREE. 452 of bills to establish wills rested; and such was the form of his njiplica- fion, that if ho failed upon that issue, ho would not be bound him- self.(n Whore an order for an issue directs all the witnesses to be examined, but tho plaintiff, conceiving his case to be made out, declines calling some of them, the judge himself will call them.(m) Upon the trial of a feigned issue in a suit by a wife for a divorce, the judge may allow proof of acts of cruelty on the part of the defendant, for the purpose of showing that the affections of the husband were alienated from the wife ; that there was a course of abuse from the time of his connection with another woman, down to, and terminating in a separation from his wife; and that such cruelty resulted from that connection and was part of the plan contrived between them to drive the wife from home, in order that the intimacy might be more easily carxied on.(H) Netu witnenses. In the case of Ajitliorp v. Co7nstock,{o) the order for an issue directed that no witnesses not before examined should be intro- duced on the trial, unless the party producing them should, at least fifteen days before such trial, give notice to the opposite party, or his solicitor or attorney, of his intention to produce such witnesses, with their names, additions, and usual place of abode. But this provision was not to extend to such new witnQgses as were called to impeach other witnesses, nor where the judge should be satisfied there was a reasonable excuse for not giving such notice, or for giving a notice for a shorter period of time. Heading depositions in the cause. In directing an issue, the court will order the depositions taken in the cause to be read at the trial of the issue ; without requiring a foundation to be laid, by proving exam- ined copies of the bill and a,ns\veT.{p) The object of the court, how- ever, in making such an order, is merely that of dispensing with the strict legal proof of the record.(5r) It is not intended to authorize the reading of the depositions of witnesses, in cases in which the court of law would not admit them to be read upon proof of the record in the ordinary way; i. e. unless proof be given that the witness is dead, or abroad, or otherwise unable to attend. It therefore generally adds to the order a direction that the depositions of the witnesses shall be read at the trial of the issue, in case the witnesses, or either of them, shall {D Tatham v. Wright, 2 Enss. & My. I. (m) Groom v. Chaniliers, 2 I[ont. & Ayr. 742. (») Mnlockv. Mnlock, 1 Eihv. 14. (o) '2 Paige, 485. (p) 2 Dun. 744. \q) Gordon v. Gordon, 1 Swanst. 170. 893 453 PROCEEDINGS SUBSEQUENT TO THE DECREE. [Book II. be dead at the time of tlie trial, or be proved at that time to be iu such a state of health as not to be capable of attending the trial. (r) In Jones V. Jones,{s) motion was made before Lord Thurlow, for leave to read the deposition of a witness in the cause, on the ground of his age or inability to attend; but his lordship thouglit the application should be made to the judge who tried the cause; and refused to make auy order on the subject. It seems, however, that there is no absolute rule requiring that the inability of a witness to attend shall be left to the decision of the judge at nisi prius. Where, therefore, the court directing the issue can be satisfied that the question of the ability or inability of the witness to attend, can have but one conclusion, it will itself decide it.(;) In a case where witnesses had been examined in the cause, and npon the hearing, an issue was directed, but, before the trial, the plaintiff in the issue died, having ajjpointed one of the witnesses, who had been examined, his executrix, whose name, and that of her husband, were in consequence substituted for that of the testator, as plaintiffs in the issue, the court ordered that the depositions of the executrix, in the cause, should be read at the trial of the issue; on the ground that if she had died, her depositions would have been admissible, and that her becoming plaintiff was tantamount to her death. (w) Where a witness who has been examined in a cause, and afterwards viva voce upon the trial of an issue, dies, and a new trial of the issue is directed, not only his deposition in the cause may be read at the new trial, but what he swore to at the former trial may be given in evi- dence.(v) In the case of Apthorp v. Com.stock,{w) the order for an issue directed that either party should be at liberty, at the trial, to re-examine any witness whose testimony had been read upon the hearing of the cause, or to read their depositions if they were dead, or out of the jurisdic- tion ; as also to read the deposition of any witness of the opposite party. Depositions taken de bene esse. It is the practice of the courts in England, not to allow the examination of a witness de bene esse, with a view to the trial of an issue, after the depositions of other witnesses in the cause have been published. (a;) But where a witness who has (r) Palmer v. "Lord Aylesbnry, 15 Ves. 176. (s) 1 Cox, 184. («) 2 Dan. Pv. 744, 5. Corbett v. Corbett, 1 Ves. & B. 836. («) Andrews v. Liidv Beanchamp, 7 Sim. 65. (») Cokerv. Fjivewell, 2 P. Wms. 663. (M) 2 Paige, 485. ix) P.ilmer v. Lord Aylesbury, 15 Ves. 299. 894 Chap. 3.] PROCEEDINGS SUBSEQUENT TO THE DECREE. 454 not before been examined in tlie court of chancery, has been prodnced upon a trial at law, and another trial of the same matter is to be had, the court will entertain a motion for the examination of such witnesses de bene esse with a view to such second trial.(2/) And so, after the trial of an issue in the cause, an application on the part of the complainant for liberty to examine a witness who was above seventy years old, de hene esse, for the purpose of securing his testi- mony in case of his death, upon the ground that it was intended to move for a new trial, was granted.(«) When depositions taken de hene esse have been read at the hearing of a cause, it is a matter of course to order them to be read at the trial of an issue, notwithstanding an irregularity in the examination. And the court will not discharge the order on the ground of such irregu- larity ; although the party complaining of it did not know of the irregularity in question till after the hearing, and the time was very short between the publication of the depositions and the liearing of the cause; as the party complaining of the order might have applied for time to enable him to examine whether the depositions had been regu- larly taken. («) WJio may attend trial of issue. A person who is interested in the result of an issue, but who refuses to be a party to it, may nevertheless be allowed to attend the trial, by counsel.(5) He will, in such case, be included in the order for the production of documents.(c) Minutes of court ielow.] Where the trial of the issue is had under the act of May 2d, 1839, the court awarding the issue is to be informed of the proceedings upon, and result of, the trial, by the minutes of the court at law. The 67th rule provides that a copy of the minutes of the court before which the issue is tried, containing the verdict of the jury upon the issues, certified by the clerk, shall, upon the hearing in this court, be suflBcient evidence of the trial and verdict. Judge's certificate.] After the trial of a feigned issue, the judge cer- tifies how the verdict was found, and whether the same was satisfactory to him, or not. Netv trial, when to ie applied for.] By the English practice, an api)lication for a new trial of an issue must be made before the hearing on further directions.(cZ) But the rule is otherwise here. In Apthorp [y) Anon, oitod by Lord Eldon, Ibid. (2) Anon. 6 Ves. 573. (a) Gordon v. Gordon, 1 Sw.inst. 166. lb) Pindar V Smith, Mad. & Geld. 48. (c) 2 Dan. 746, 732. yd) Attorney Gen. v. Montgomerj-, 2 Atk. 378. 895 455 PROCKrnrXGS SUBSEQUK.XT TO TIIK DKCTiEK. [Book I^. V. Comstock,[e) and in Van Aht v. Hunter, {f) the motion for a new trial was allowed to be made at tlie hearing upon the equity reservLMj. In the latter case the court say a new trial has been as often granted in that way as upon a previous petition, or distinct motion for the purpose. The application for a new trial mnst be made within a reasonable time. Thus, in Legard \. Daly,{g) where jBve years and a half had elapsed since the trial, the court refused the apphcation upon that groand. And in Van Alsi v. Hunter,{li) a motion for a new trial, made the second term after the nisi prius record and certificate of the judge had been filed, on an ex parte statement of the evidence, was denied, on the ground of the delay and the want of proper documents- Neiv trial, hoiv ajjplied for. The 5th section of the act of May 2d, 1839, directs the chancellor, by general rules to prescribe the manner of proceeding to obtain a new trial of the issues, when necessary.(i) In pursuance of this direction, the 67th rule provides that where a feigned issue, or any other issue, has been awarded and tried, if either party wishes to apply to this court for a new trial, on the ground of any erroneous decision or misdirection of the court or judge before whom the issue was tried, or that the verdict was against the weight of evidence, a case is to be made up and settled in the manner pre- scribed in the rules of the supreme court in relation to causes pending in that court. And where more than one judge was present at the trial of the issue, the case may be settled by the senior judge who was pre- sent and presided, or by the judge who may have been designated by the court for that purpose, upon the trial. (4) (e) 2 Paige, 485, (/) 5 John. Ch. Bep. 153. (.17) ] Ves. 192. (h) Supra. (i) Laws of 1839, p. 293. (4) Rule 40 of the supreme court directs that when any specific questions of fact involved in an action, or any question of fact not put in issue, is ordered to be tried by a jury, as a substitute for a feigned issue, and has been tried, or a reference other than of the whole issue has been ordered under § 271 of the Code, and a trial had, if cither party shall desire to apply for a new trial, on the ground „f any error of the .judge or referee, or on the ground that the verdict or report is against evidence, (except when the judge directs such motion to be made upon his minutes, at the same term or court at which the issues are tried,) a case or exceptions shall be made, or a case containing exceptions, as the case may require ; which case or exceptions shall be served and settled in the manner prescribed by the rules of court for the settlement of cases and exceptions in other cases. Such motions shall be made, in the first instance, at special term, and if neither party moves for a new trial in such case, they shall be deemed to have acquiesced in the decision of the judge or referee, and the verdict of the jury or report of the referee, and the same shall not be qiiestioned upon the final hearing of the cause, or in any, subsequent proceeding therein. 896 Chap. 3.] PBOCBEDTNGS SUBSEQUENT TO THE DECREE. 45() "Where this court directs a suit at law to be brought, the application for a new trial must be made to the courb in which such action is pending. But where an issue is directed to be tried in a court of law, the application for a new trial must be made to the court of chancery. {h) The reason of this distinction is laid down by Lord Eldon to be, that if this court thinks proper to consider the case upon the record as fit to be governed by the result of a trial, the review or propriety of which belongs to a court of law, the opinion of a court of law is Bought in such a form that it is regarded as conclusive, whether the judgment is obtained upon a verdict or in any other shape; but upon' an issue directed, this court reserves to itself the review of all that passes at law ; and one principle upon which the motion for a new brial is made here, and not to the court of law, is, that this court regards the judge's report, with a view to determine whether the infor- mation collected before the jury, together with that which appears upon the record, is sufficient to enable it to proceed satisfactorily, to which it did not consider itself competent previously.(Z) The application for a new trial must be made to the chancellor or vice chancellor who directed the issue: i.e. to the same jurisdic- tion. (m) The form of the issue will not be changed upon a motion for a new trial. If the party is desirous to question the form of the issue, he must do so by presenting a petition for a re-hearing of the decree or order directing it.(«) In De Tastet v. Bordenave,{o) a petition for a re-hearing was presented at the same time that a notice of motion was given for a new trial ; and upon the hearing of the petition, Lord Eldon said that if it had been lodged before the trial, an application should have been made, by motion, to stay the trial ; but that if the application for the re-hearing was not made till after the trial, it came too late. (ft) Apthorp V. Comstock, 3 Paige, 483. Fowkes v. Chadd, 2 Dick. 576. (I) Bootle V. Blnndell, 19 Ves. 600. (m) See 2 Dan. Pr. 756. Footner v. Figes, 2 Rim. 319. See Beece v. Eeeoe, 1 My. & Craig, 372. (II) White V. Lisle, 3 Swanst, 351. See also Legaid v. Daly, 1 Ves. 192. (o) Jacob, 516. For the error of the judge at the circuit, in exchiding or admitting evidence on the trial of an issue ordered by the special or general term, to settle a disputed fact, aris- ing on a motion, the remedy of the party aggrieved is by a motion to the general term, for a new trial of the issue, upon a case. (87i£U v. Loncks, 12 Barb 885.) An order made by a judge, at the circuit, refusing a new trial, upon his minutes, is not, in the case of a trial of special issues in an equity action, appealable. The defeated party must wait until after the trial of the action at special term or at least until after a motion at special term, for a new trial, has been heard. (Hatch v. Peugnet, 64 Barb. 189.) Such a case is not within section 264 of the Code, because It is not the trial of a cause, as provided in that section. (Id.) Vol. L— 57 897 457 PROCEEDINGS SUBSEQUBfNT rO THE DECREE. [Book II. In Wliite V. Lisle,{p) however, his lordship permitted a petition for a re-heariug to be brought on at the same time with a motion for a new trial. Neio ti'idl — ivhen and for wJiat reasons granted.'^ This court directs issues to be tried at law to inform the conscience of the court as- to facts doubtful before, and therefore expects, in return, such a verdict, and on such a case, as shall satisfy the conscience of the court to found a decree upon. If, therefore, upon any material or weighty reason the verdict is not such as to satisfy the court that it ought to found a decree upon it, there are several cases in which this court has directed a new triaJ, for further satisfaction, notwithstanding it would not be granted in a court of common law ; because it is diverse intuihi, and because the court proceeds on different grounds.(g') Verdict contrary to weight of evidence.'] Accordingly, the courb will grant a new trial not only in cases where the verdict is against evidence, but it will nicely balance the evidence on both sides; and where it finds that the verdict is contrary to the weight of evidence, it will direct the issue to be tried over again. (»•) Therefore, if the judge before whom the issue is tried certifies the verdict to be against evidence, the chancellor will direct a new trial.(s) But it seems to be the general principle acted upon by the court, that if the application rests solely on the ground that the verdict given by the jury was against the weight of evidence, and the judge states that, upon the whole, he is not dissat- isfied with that verdict, which is the usual form in which judges intimate their opion that the verdict ought not to be disturbed, the court will not grant a new trial.(<) But even in that case the court will grant a new trial upon the production of new evidence which was not before the jury upon the original trial.(M) So if, after a trial, a witness be convicted of perjury, or a party of forgery, this will be considered as a good ground for a new trial.(i^) The court, however, will not set aside a trial at law for any matter which might have been made use of at the trial ;{w) or when it is of opinion that the evidence, though newly discovered, will not afford a foundation for a different verdict.(a;) Surprise.'] Where it can be shown that a party has been taken by (p) 3 Swanst. 343. (q) Stace V. Mabbot, 2 Ves. 552. (t) Lord Fanlconberg v. Pierce, 1 Amb. 210. ClecTe v. Gascoignc, id. 323. (s) SoathaU v. McKeand, 1 Wash. Virg. Eep. 336. («) Glbbs V. Hooper, 2 My. & Keen, 355. (K) Id. ib. (II) Tilley v. WTiarton, 2 Vern. 378. See aiso Coddiington v Webb, id. 240. SewcU v. Free- stone, 1 Ch. Ca. 65. (w) Cnrtes.iv. Sraalb-idge, ICh.Ca. 23. 2rreem.]78. Montgomery t. Attorney Gen, 9 Mod.388. (x) ColgraTv. V Jnson, 3 Atk. 107. 898 Chap. 3.] PROCEEDIJS^GS SUBSEQUENT TO THE DECREE. 458 surprise, and evidence Tvas produced at the trial which he could have no reason to expect would be produced, the court has directed the issue to be tried again. Thus, if after an issue is directed, the plaintiff obtains an order ex parte, to strike out the name of a co-plaintiff and makes use of him as a witness, and has a verdict, the court will set aside the trial.(y) Fraud-I The court will also grant a new trial in cases in which a fraud has been practised upon the party applying.(«) Mio evidetice.] As it is the rule of the court that it will not grant a new trial upon the production of new evidence, unless it is shown that there has been some surprise or fraud upon the party applying,(a) still less will it do so where the party is in possession of the evidence, but either in the exercise of discretion or from neglect, does not pro- duce it at the trial ;(S) or where it can be shown that, though he was not in possession of it himself, he had full notice that it was in the power of the other party to produce it. TJpon this ground, the circum- stance of evidence having been made use of at the trial of an issue, which was discovered after the answer of the defendant was put in, the consequence of which was that the verdict was contrary to the answer, and to the true sense and meaning of the issue, was not held a sufficient reason for directing a new trial-^there having been no surprise upon the party applying; who, before the trial, had opposed a motion made by the other party for the express purpose of having the trial postponed in order that the issue might be rectified.(c) Where a party, upon the trial of an issue, produces evidence which is a surprise upon the other party, and which would have been suffi- cient, under other circumstances, to entitle him to the verdict, he will not be permitted, although the jury find against such evidence, to have a new trial.(Te, 3 Atkj-ns, 387. Wright T. Wright, 5 Sim. U9. White v. Wilson, 13 Ves.92. ()■) Berney v. Eyre, supra. Is) White V. Wilson, 13 Ves. 92. (t) Webb V. Cliiverden, 2 Atk. 424. Soaife v. Scaife, 1 Enss. 309. Ill) Anon. 2 P. Wms. 68. {V) Bearblock v. Tyler, 1 Jac. & W. 225. 2 Dan. Pr. 762. ill!) Beames on Co8ta, Appx. xv. 309. Ix) 1 ves. Jan. 135. («) See also Edwin v. Thomas, 1 Vern. 469. [z) White V. Lisle, 4 Mad. 214. See also Dovie v. Lord Brownlow, 2 Dick. 796. (a) See ante, p. 446. (5) By the Code, (§ 72,) feigned issues are abolished, and it is provided that in the cases where the power previously existed to order a feigned issue, or when a ques- 904 Chap. 3.] PROCEEDINGS SUBSEQUENT TO TBE DECREE. 4g3 BrPAoing up and settling a feigned issue.\ Upon granting an order for a feigned issue, a draft of the pleadings in an action of assumpsit is prepared by the plaintiff's solicitor, (or by the solicitor of whichever party is ordered by the court to prepare it.) In the decla- ration, the pretended plaintiff declares that he laid a wager of a certain amount, with the defendant, on the question in dispute; and avers that the fact is as he contended it was, and that he therefore brings his suit for the amount of the wager. The defendant, by his plea, admits the wager, but avers the contrary to be the fact. Whereupon the issue is joined which is ordered to be tried.(&) When the complainant's solicitor has prepared the pleadings, he serves a copy upon the defendant's solicitor. If the parties are unable to agree upon the issue, it is to be settled by a master; and the order usually contains a ti.irection to that effect. For this purpose a copy of the pleadings is made and left in the master's ofiBce; who thereupon issues a summons for the other party to attend; on the return of which the issue is settled by the master.(c) When the issue has been settled, the master certifies accordingly; which certificate is filed in the proper oflSce. Service of issue as settled.] A copy of the issue as settled, with notice of trial endorsed, is then served upon the opposite party.(iZ) Proceedings in court of law.] After the issue is agreed upon, or set- tled by the master, the subsequent proceedings are regulated by the practice of the court in which it is to be tried ; subject, however, to the control of this court over the parties as to the mode and terms of trying such issue.(e) The decree or order directing the feigned issue, either specifies the time when it is to be tried, or directs the master to fix the time. But it seems the court has no power to make a compulsory order to force the pai'ties to proceed on the issue. If, however, the plaintiff makes default in taking the record down for trial at the time appointed, the court will order the issue to be taken pro confesso against him.(/) Yet, (6) 2 Smith, 80. (ci See Act of May 14th, 1840, abolishing cironit roUs, &c. Laws of 1840, p. 334, j 21. (d) 2 Smith Pr. 81. (e) 1 Turn. Pr. 450. (/) Bearblock v. Tyler, 1 Jac. & W. 225. tion of fact, not put in issue by the pleadings, is to be tried by a jury, an order for the trial may be made, stating, distinctly and plainly, the question of fact to be tried, and such order shall be the only authority necessary for a trial. It has been heUi, that this section can have no application to an action for a divorce for adultery, in which an issue of fact is raised by the pleadings. (Parker v. Parker, 3 Ab. 478.) 905 464 PBOCEEDINOS SUBSEQUENT TO THE nECREE. [Book TI. when there is a reasonable ground shown for the indulgence, the court will, upon application, give the plaintiff leave to postpone the trial.((/) After an order to take the issue pro confesso, the cause should be set down for further directions, and to have the issue taken pro confesso pursuant to the order.(A) The practice with respect to the production of documents, the exam- ination of parties, and of witnesses, and in short, with respect to all the proceedings upon the trial of a feigned issue, is nearly the same as that upon the trial of issues at law under the act of 1839. According to the former practice, after the verdict was rendered, the same was endorsed on the postea, and the record brought into this court and filed with the register ; upon which the cause was noticed for hear- ing on further directions.(t) But the act of May 14th, 1840, concern- ing costs and fees in courts of law, &c. has abolished the circuit roll and postea, and directed the copy of the pleadings furnished for the court upon the trial, with a certified copy of the minutes of trial annexed, to be filed instead.(^) Proceedings in this court after trial.'] The party obtaining the ver- dict must, under this section, obtain from the clerk of the court in which the cause was tried, a certified copy of the minutes of trial, annex it to the pleadings, file the papers in the register's or clerk's office, and thereupon notice the cause for hearing upon further directions. If a new trial of a feigned issue is sought for by either party, it is to be applied for in the same manner as in the case of an issue at law, and will be granted for the like causes.(?) It seems that the plaintiff in an issue may suffer a nonsuit, and that if he does so advisedly, in consequence of any unforeseen occur- rence at the trial which would have rendered further proceeding with it unsafe, the court will grant him a new trial, notwithstanding the nonsuit.(wi) After the trial of an issue, the plaintiff cannot move to dismiss his own bill, with costs ; although he might have done it before the trial actually took place.(«) (g) Id. ib. (A) 1 Newl. Pr. 352. (i) Van Alat v. Hnnter, B John. Ch. Eep. 150. (k) Laws of 1840, p. 334, } 21. (I) See ante, p. 454, et seq. (m) Kiohards v. Symes, 2 Atk. 319. («) Carringtoa v. Holly, 1 Dick. 281. 906 Chap. 3.] PROCEEDINGS SUBSEQUENT TO THE DECREE, 405 SECTION 11. ACTION AT LAW. In what cases directed.] Wherever the foundation of a claim is a legal demand, and the question whether a new trial should or should not bo had, can be discussed with more satisfaction in a court of law than in a court of equity, this court will direct an action at law.(o) The court in dismissing the complainant's bill, will sometimes do so without prejudice to his right to proceed at law.(^) It will also, where the complainant's right to equitable relief depends upon a legal title, retain the bill for a certain period — giving the complainant liberty, in the meantime, to bring an action for the purpose of establishing his right at law, in order to found the equitable relief.(^) The cases in which the court retains the bill, with liberty to the complainant to proceed at law, are those in which it is necessary for him to establish his right at law in order to found the equitable re]ief.(r) And the practice cannot be made use of to enable the complainant iirst to try whether he has any claim at law, and then, if he fails there, to come into this court to try to raise an equity.(s) Where the bill is retained, with liberty to the complainant to bring an action at law, within a limited time, the bill will be dismissed unless an action is brought within the time limited; further directions being reserved only in the event of a trial taking place. (^) For7n of action.] In directing an action at law, the court always directs it to be brought in such a form that the result shall be regarded as conclusive.(w.) Special directions.] The court will also provide for a satisfactory trial by restraining the parties from setting up any legal obstacles to the fair trial of the case; such as outstanding terms, or the statute of limi- tations, or a bankruptcy. (f) It will also order the parties to make such admissions at the trial as may be necessary to bring the matter in dis- pute properly before the court.(w) And it will give the same directions as to the examination of the parties, and the reading of depositions, and the production of documents, as are given upon directing issues.(a;) (p) Id. 639. iiortlock T. Bnller, 10 Ves. 292. McNamara v. Arthnr, 2 Ball & B. 349. (g) Id. ib. Seaton on Decrees, 356. (r) Walton T. Law, 6 Ves. 150. («) Id. ib. («) 2Dan. 640,763. («) Bootle T, ninndell, 19 Ves. 500. „ j „ ..r . \v\ Pemberton v. Pemberton, 13 Ves. 298. Stevens v. Praed, 2 Ves. Jun., 619. (IV) Id. ib. (X) See ante, p. 448, et seq. 907 466 PROCEEDINGS SUBSEQUENT TO THE DECREE. [Book II. The rule as to producing papers on a trial at law directed by thia court is this: If the court directs a trial, it is directed in such a way that all productions which the court conceives to be useful upon that trial, the creature of its own direction, shall be made. Upon this principle the court will order documents which are in possession of another defendant, to be produced on a trial at law directed by the court.(«/) Where the bill seeks relief, as well as discovery, the court will not, upon motion, aid the complainant in proceeding at law without the authority and control of the court. Any such proceeding must be under the authority and control of this court. Therefore, in such a case this court would not, on motion, order that an outstanding term should not be set up by the defendant agamst an ejectment brought by the complainant ;(«) or direct the defendant to produce deeds, &c. on the trial of the suit at law.(«) Where an action at law was directed to be brought, and it was order- ed that the defendant should not insist upon a title set aside by the decree, which order he disobeyed; whereupon the plaintiff read the decree, but was nevertheless nonsuited; upon his application to the court for a commitment of the defendant for the contempt, and to be established in the possession, the same was ordered accordingly. (J) And in the case of Bayley v. Morris,{c) where no special direction was given as to not setting up a legal title, and the defendant in the action set np a legal title in trustees ; whereupon the plaintiff was nonsuited, the court, upon petition, ordered the defendant to pay the costs of the nonsuit. Parties.] As the action can only be between the parties who are interested in the legal estate, the court, for the protection of those who are equitably interested, will make it part of the order that they shall be at liberty to attend the trial by counsel, &c. to make such defence as they may be advised.(rf) In such cases, if an abatement in the suit occurs before the trial of the action, by the death of any of the defendants who are at liberty to attend the trial, the suit should be I'evived before the trial takes place. But it is otherwise where the abatement occurs by the death of a defen- dant wh„ h..i, no such liberty.(c) (y) Marsh v. Siljbnkl, 2 Ves. & B. 375. (z) Hylton V. Morgan, fiVcs. 293. («) Aston V. Lord Exeter, id. 268. (i) Anon. 1 Cll. Oil. 2B7. (c) 4 Ves. 788. \d) Sec tile decree in Bn.xton v. Sidebotham, 2 Yes. jviu., 521, u. (e) Huinpln-eys v. llollis, -Jucob, 73. 908 Chap. 3.] PROCEEDINGS SUBSEQUEN TO TeTBE DECREE. 407 Trial, and suhsequent proceedings.] The action is tried in the usual manner. If a new trial is desired by either party, it must be moved for in the court in which the action is brought, and not in this court.(/) And this rule applies even to cases in which the court has given special direction with regard to the trial; such as for the examination of the parties, &ic.{g) If a new trial is not moved for, or if a new trial is had, after the ver- dict thereon, the cause should be set down for futher directions, in the same manner as after the trial of an issue.{/«) And in the meantime no proceedings should be taken at law in consequence of the verdict, except moving for a new trial, without the sanction of the court. The hearing upon further directions is not the time when any mis- take committed at the trial below can be rectified. Therefore, where, upon further directions, the complainant applied to have the damages given by the verdict at law increased, on the suggestion that interest was omitted to be given, through a mistaken supposition that it would be given in equity, the court refused to interfere with the verdict.(i) If, in the course of an action directed by this court, this mode is mis- conceived, application should be made to this court, by petition, to enable it to do justice.(^) Costs.] The consideration of the costs of an action at law is generally reserved, by the order directing or permitting the action, together with the other costs of the suit, till the cause comes on upon further direc- tions; when the court will make such order respecting them as the justice of the case requires. In general, however, the costs of the action follow the verdict; as in the case of issues.(0 Where an action is directed to be brought in a court of law, and the plaintiff in an action resides abroad, the motion that he may give security for costs should be made in this court.(m) (/) Apthorp V. Comstock, 2 Paige, 482. Fowkes v. Chadd, 2 Dick. 576. (. 54. AGENT, verification of bill by, 44, 46. service of subpoena upon, 53. ALIAS ATTACHMENT, 59. AMENDED BILL (COMPLAINT), taking as confessed, for want of answer, 98, note 6 attachment for not answering, 98. time for answering, 120, 160. must be signed by counsel, 221. when it may be taken from the file, 222. when it may be demurred to, 225. AMENDING BILL (COMPLAINT), after demurrer. 110-113, note 27, 211, note 10. after allowance of a partial demurrer, 175. after plea, 119, 120, 175. 212. after discljiimer, 206-209. after replication, 213. after exceptions to answer, 212. at the hearing, 215. after decree, 217. upon appeal, 217, note 11, 398. in what time, 206, 209, note 7. {See Amendments.) when of course ; when only on special motion, 209, note 9. of what bills, 209, 210, note 9. creditors bill, 210. method of, 210. 219, note 13. sccpnd amendment, 218, note 12. service of amendments, 222. note 14. time to answer, after. 223. note 16. effect of, 223, note 17. (See Amended Bill. Amendments.) AMENDMENT. of answer, when allowed, 163, 164, notes 81, 82, 83. to correct a mistake in matter of form, 167. by adding name of counsel, 168. re-swearing to answer, 168. to be served on complainant, 165. when allowed at the hearing, 167. terms of, 168. of bill, after demurrer ore tenus, 114. of appeal bond, 402, 403. of petition of appeal, 410. of complaint, answer and pleadings generally, 206 and note 7, 208, note 9 AMENDMENTS, to bill (complaint) relating to parties. 206, 209. those affecting substance of case 206, note 7. are in the discretion of the court, 206. should not introduce new facts, 206. nor facts known at time of filing bill, 207. in what cases allowed. 207. 208, 209, notes 7, 8. as to what bills, (^ee Amending Bill.) in what time to be filed, 206, 207, note 7, 209, 210, note 9, 211, note 10, 212 213. at the hearing. 215. after decree, 217. upon appeal 217, note 11. gecond amendment, 218, note 12. 913 AMENDMENTS— Co?iii?Mied. extending time for, 219. how made, 210, 219, note 13, 220, 221. what may be introduced by, 219, 220. signature of counsel, 221. {See Amended Bill.) expunged, if irregularly filed, 222. service of, 222, note 14. {See Amending Bill. ASiended Bill.) terms of, 222, note 15. time to answer, after, 223, note 10. effect of amending. 223, note 17, 224. ANSWER. how far evidence, when oath waived, 36, 143, note 56, 144. attachment to compel. {See Attachment.) when deemed sufficient, 124, 183. of married women. (jSee Married Women.) of infants. (Se? Infants.) may be compelled, after overruling demurrer, 112. of a deaf and dumb person, 155. of a blind person, 154. of an illiterate person, 154. of a corporation, 156, 157, notes 74, 75, 76, 77. of an attorney general, 158. by attorney. {See Attorney.) of a married woman. {See Married Women.) of an idiot or lunatic. {See Lunatics.) of a foreigner. (/See Fokeignee.) proceedings to compel, 87. none, under the Code, 87, note 1. order, and form of, 87. consequence of disregarding, 87. attachment, 88. agdinst husband and wife, 89. of a corporation, 89. taking bill as confessed, for want of, 96, note 4. {See Bill.) judgment on f lilure to answer. 96, note 4. of husband and wife. {See Married Women.) must be sworn to by both 96. to amendments. when bill is amended after plea, 120. taking bill as confessed for want of, 98. attachment for want of, 98. in conjunction with demurrer, 108, notes 16, 17, 173. in conjunction with plea, 115 to 118, 120. {See Plea.) nature and uses of, 130, note 34. may be either to whole or parts of bill, 130. double purpose of, 130. 1. Manner of answering case made by bill, 130 to 137, notes 35 to 42. 2. Manner of stating the defence, 137, 138, 139, notes 43, 44. what is new matter, 136, note 43. may set up several defences, not inconsistent with each other, 138, note 44. what degree of accuracy is necessary, 138. schedules, 139, 140. form of, 140. must not be evasive, 140. substance must be preserved, 140. title, 140. commencement, 140. general saving of exceptions, 140. answer -to bill and statement of defence, 140. defendant bound to admit or deny whatever the complainant is bound to state, 140. may set up matter occurring since filing the bill, 140. denial of combination, 141, note 45. Vol. I.— 58 913 INDEX. ANSWER— Cora«i7J«e(J. must be in ordinary and concise language, without repetition, 137, note -13 several defences ; counter claims ; equitable defences, 138, note 44. separate statement and numbering. 141, note 44. general traverse or denial, 141. demand of judgment for relief. 141 , note 45. redundancy and irrelevancy, 141, note 46. imdeflniteness or uncertainty, 141, note 47. ,sham defences, 141 note 48. frivolous answer, 141 , note 49. engrossing, 141, note 50. numbering and marking folios, 141, note 51. signing, 141, note 52, 142. by counsel, 142, note 53. swearing to (/See Oath.) endorsing. 146, note 61. filing, 146, note 62. serving. 146. time for putting in, 146, notes 63, 64. extending, 147, note 65. to amendments and exceptions together, 194. .joint or separate answer, 158, 159, note 79. to amended bill, 159, note 80. form of, 159. bow entitled. 160. time for putting in, 120. when it may be taken otf the file, 160. commission to take. {See Commission.) amendment of. {See Amendment.) -supplemental. {See Supplemental Answer.) taking it from the file. {Sie Taking from the File.) excepting to. (6'ee Exceptions.) further answer, (ilse Further Answer.) time for putting in, 189. when required to be produced, 367. APPEAL, 875. from what decrees or orders, and on what grounds, 376, note 1, 377-380. not for an e.sei'cise of discretion, 376, note 2. nor as to the mere practice, 378. as to costs,376, note 3, 377. mere initiatory orders. 379. an ex parte order which is merely irregular, 380. order dissolving, or refusing to dissolve, or grant an injunction, 380. order or decree entered by consent, 380, note 4. by default, 381, note 5. who may appeal, 381, note 6, 382, 383. prosecuting in forma pauperis, 383. evidence upon, 384. notes 7, 8, 1585. papers necessary upon, 314, 815, 385. by whom to be furnished, 315. effect "of, 386. what questions are brought uj) by it, 386, note 9, 387, 388. from part of a decree, 388. when a stay of proceedings : 1. Appeals to the court of errors. 388, note 10, 389, 390. to the court of appeals, 388. note 10. bond for costs, 888, 389. 2. To the chancellor, from a vice chancellor, 390. 391, 392. to the general term of supreme court, fee., 390, note 11. effect of appeal upon injunction, 893. effect as to power of court below, 394 note 12. miscellaneous provisions respecting, 395. burthen lies upon appellant, 395, note 13. decree on reversal .'395. 914 INDEX. APPEAL— CoretiTMterf. time for appealing, 395, note 14. to the court of appeals, 395, note 14. to the supreme court, 395, note 14. notice of judgment or order, 395. note 14 who entitled to be heard, 395. what points may be raised upon, 396, note 15. appeal may embrace more than one order, 396. cross appeals, '397. amending bill by adding parties, 398. order or decree by consent, 398. waiver of, 398, note 16. dismissing, 398, note 17, 399, 403. appeal under the Code, how made ; exceptions or case, notice of; parties, how designated ; title of action : papers, how entitled ; transmission of papers to appellate court ; judgment, note 18, p. 399. to the general term of the supreme court, superior court and common pleas of New York, from judgment entered upon report of referees, or the direction of a single judge, note 19, p. 399. to the chancellor from, a vice chancellor, 399. within what time to be brought, 399. how limited, 399. by notice of judgment, note 22, p. 405. extending time, 400. method of appealing. notice, 400, note 20. bond and deposit for costs, 401. 402, 403. transferring papers, 401, note 18. p. 399. papers on appeal; 314, note 4, 385, 403. place of appeal cause on the calendar, 403. hearing, 404, note 4. may be noticed by either party, 404. detiiult of either party, 404. decree or order, 404. interest, when allowed, 404. eft'ect of the death of a party, 405. new solicitor'on appeal, 405. papers, how entitled, 405. to the general term from orders made at a special term, by a single judge, or. out of court, upon notice, note 22. p. 405. to the court of appeals, note 23; p. 406. from what judgments or orders, note 23, p. 406. only from actual determinations, note 23, p. 406. time for appealing, note 25, p. 407. statement of facts by general term, note 23, p. 406. notice of, note 26, p. 408. security on appeal, note 27^ p. 408. power of the court ; judgment, note 24, p. 406. case on, 415, note 30. waiver of, note 28. p. 413. dismissing, note 29, p 413. points, note 31, p. 415. manner of printing case and points, note 32, p. 415. service of case, note 33, p. 415. solicitors, counsel and guardians ad litem, note 84, pp. 415, 416. list of causes, or calendar, note 35, p. 416. hearing, note 36, p. 416. default of parties at, note 37, p. 417. costs and damages in court of appeals, note 38, p. 421 rehearing, note 39, p. 422. remittitur, note 40, p. 422. general rules as to practice on, note 41. p. 423. from the chancellor to the court of errors, 406. power of the appellate court. 406. 915 INDEX. AV'P'EKL— Continued. within what time to be brought, 406, 407. time, how limited, 399, 408. notice of entry of decree or order, 408. objection for not being made in time, 408. waiver of, 408. notice of. 408. bond or deposit for costs, 409. bond for performance of decree appealed from, 401, 402, 409. petition of appeal, 409 to 412. answer to, 412 to 414. withdrawing, 412. waiver of, 413. dismissing, 413, 417. cross appeals, 414. case on appeal, 415. {See Case.) points, 415. manner of priilting case and points, 415. service of case, 415. solicitors, counsel and guardians ad Mtewi, 415. notice of argument, 416. list of causes, or calendar, 416. hearing, 416. number of counsel upon, 416. preliminary questions, 416, 417. default of parties at, 417. abatement of suit, &.C., 417. evidence upon, 419. prosecuting apeal in foi'ina pauperis, 419. decision. 420. decree, 420. costs, 421. re-hearing appeals, 421. remittitur, 422. general rules at, to practice on, 422, 423. proceedings In court below, 423. to the supreme court, from a surrogate, note 42, p. 424. time for appealing, 424, note 43. bond, note 44, p. 425. petition of appeal, note 45, p. 425. practice respecting, note 45, p: 425. transcript and return, note 46, p. 426. guardian ad litem for infants, note 47, p. 428. parties, 48. dissmi-ssing appeal, note 49, p. 429. hearing, note 50, p. 430. papers upon the hearing, note 51, p. 431. practice generally, note 52, p. 432. to the chancellor, from a surrogate, 424. when an appeal lies, 424. within what time to be brought, 424. bond, 425. petition of appeal, 425. filing, 425, 426. form of, 425. service, 427. answer to, 428, 430. transcript of proceedings, 426. when a stay of proceedings, 427. notice of appeal, 427. oi'der to serve copy petition, 427. order to answer petition, 428. guardian ad litem for infants, 428. parties. 428. INDEX. A.WY.KL— Continued. dismissing. 429. papers, how entitled, 430. cross appeal, 430. hearing, 430. papers upon, 431. decree, 431. practice generally, 431. from a surrogate to a circuit judge, 432, note 58. in what cases it lies, 432. within what time to be made, 432. bond, 432. staying proceedings, 433. petition of appeal, 433. answer to. 433. surrogate's return, 433. guardian ad litem for infants, 434. parties, 434. hearing, 434. issue, how made up and tried, 435. decree, 435. costs, 435. fee of circuit judge. 436. certifying determination to sun'Ogat«, 436. further proceedings before surrogate, 436. to the chancellor from a circuit judge, when it may he brought, 436. within what time, 437. how made, 437. , return by surrogate, 437. notice of appeal, 437. petition of, 437. i answer to, 438. i order to answer, 438. i order to deliver copy, 438. appointing guardian ad litem, 438. parties, 438. entitling papers, 439. course of practice, 439. : to the supreme court, from an inferior court, not-e 54, p. 439. time for appealing, note 54, p. 439. security upon, note 54, p. 439. . where heard, note 54, p. 439. judgment on, where entered and docketed, note 54, p. 439. '\ APPEALS, COURT OF. (See Court of Appeals.) ' APPEARANCE, nature of, 77, note 1. pi'ocess to compel. (^See Pkocess.) either voluntary or compulsory, 77. special or limited retainer, note 2, p. 77. gratis, 78, 81, 82. what amounts to, 78, note 3. effect of, 78. cures all defects in process, or its service, 78, note 4. entitles party to notice, 78. voluntary, 77, 79, note 5. where to be entered, 79, note 6. when to be entered, 79, note 7. how to be entered, 79. notice of, 79. may be in person or by attorney, 80, note 8, 99, 100. compulsory, 78, 80, note 9. by married women, 82, note 10. 917 INDEX. APPEARANCE— CowfmaecJ. _ • _ if wife appears sepai-ately, it is without guardian, unless she is an infant, 83, note 11. by infants, 83. guardian ad litem, 83, note 12. how appointed, 83, note 13, 14, p. 84. petition for, 83 who may be apjjointed, 84, note 15. duty, compensation and liability of, 85, note 17. infant's appearance, how entered by, 86. may be removed. 86. by idiots, lunatics, &c.. 8(3, note 18. by deaf and dumb persons. 87. by persons of weak minds, 87. by corporations, 87. by absent, concealed and non-resident defendants. {See Absent, &o.. De- fendants.) in what time to open decree, 371. ASSISTANT VICE CHANCELLOR, his powers in allowing writs of habeas corpus, 61, note (r). when he may act as master, 470. ATTACHMENT, to comjjel appearance or answer, 54. when proper and how issued, 54. form of, 54. agninst whom issued, 54, 55. how obtained, 55. order for. 54. 56. sealing and issuing, 56. when to be tested and made returnable, 56. to whom directed. 56. order to fix amount of bail, 56. how indorsed, 56. how executed, 57. putting in bail, 57. return of, 58. proceedings on i-eturn of, 58. where defendant makes default, 58. where he appears personally, or is brought in by the sheriff, 60. where he is already in custody for other causes, 61, 62. against hu-sband and wife for want of her answer, 82. against husband for want of wife's appearance, 82. for want of answer to amendments, 98. for want of answer on overruling plea, 123. on third answer being reported insufficient, 198. {8ee Exahinatiow. FuETnER Answer.) for non-payment of costs of exceptions, 204. in supplementary proceedings. (iS'ee Proceedings.) ATTACHMENT WITH PROCLAMATIONS, 62, 63. ATTORNEY. {See Solicitor.) substituted for solicitors, note 16, p. 42. when bill may be sworn to by, 44, note 20, p. 45. fonn of oath by, 45. affidavit to be annexed to bill verified by, 48, note 28. pleadings to be signed by, note 18, p. 43. service of subpoena upon, 53. answer by. when allowed, 148. when a competent witness, though a party, 261. when not permitted to testify. 268, note 6. demurrer by. to being examined as a witness, 288. 284. must sign summons, note 4, p. 50. ' '.tlS INDMX. ATTORNEY-GENERAL, answer of, 158. cannot be excepted to for insufficiency, 158, 177. wlien he cannot protect himself from answering by demurrer. 158. B. BAIL, on attachment. {8ee Attachment.) on commission of rebellion, 64, 65. on pluries attachment, 59. BELIEF, method of anS|Wering, as to, 132. BILL (COMPLAINT), natm-e and office of, 33, note 1. division of bills, 84. constituent parts of, 35. 1. The address 35, note 2. 2. The introduction, 35, note 3. 3. Stating part, 35. title of cause and name of court, 35, note 3. name of county, place of trial. 35, note 3. name of the parties, 35, note 3. 4. The confederating part, 35. 5. The charging part, 35. 6. Tlie clause of jurisdiction, 36. 7. The interrogating part, 36, 131. 8. Prayer for relief, 36, 40. note 10. matter of a bill, 38. degree of certainty, 38, note 4 must be be a plain and concise statement of facts, 38, note 4. statement of complainant's residence, 38. must state a case within jurisdiction of court, 39, note 5. sufficient matter, 39, note 7. interest of parties. 39, note 8. prayer for relief, 40, note 10. bill must be brought for whole subject, 40. must state the whole case, 40. multifariousness. 40, note 11. scandal and impertinence, 41. setting out deeds and documents, 41. how drawn if to be sworn to by agent or attorney, 44. irrelevancy or redundancy, 41, note 13. indefiniteness or uncertainty, 41, note 14. by whom, and how to be drawn, 42, note 16. engrossing, 43, note 17. signing, 43, 44, notes 18. 19. swearing to, 44, note 20. numbering and marking folios. 45, note 21. indorsing. 45, 46, note 22. filing, 46,note 23. when to be accompanied by an affidavit, 47, .48, notes 25, 2G, 27, 28. serving of copy, 100, note 1. taking it as confessed. 90, note 1. for want of an appeai-ance, 91, note 2. , against lion-resident, absent or concealed defendants, 92, note 3. (^See Absent. &e., Defenoants.) for want of an answer, 96. where defendant appears voluntarily, 96, note 6. where defendant is taken ui)on an attachment, 97, note 5. dismissal of. {See Di9.missino Bill.) retaining, with leave to bring action at law, 324. cross-bill. {See that Title.) 919 moEX. BILL (COWP'Lk.m'l)— Continued. supplemental bill in the nature of a bill of review. {See that Title — Decree.) by judgment creditors. {See Ckeditoe's Bill.) BILL OF PARTICULARS, 102. allowed under the Code, note 4, p. 102. BLIND PERSONS, answers of, 155. BOND. {See Undertaking.) proving at the hearing, 309. for costs, on appeal to court of errors, 388. on appeal to court of appeals, note 10, p. 388. to stay pioceedings on appeal, 388, note 10 ; 390, note 11. for costs, on appeal to the chancellor from a vice chancellor, 391, 401. ^Seg Appeal.) on attachment. {See Attachment.) on a supplemental bill in the nature of a bill of review, 365. for securing costs. {See Security for Costs.) where decree is for costs, not taxed, 393. required by law, form of, 403. amending, 403. on appeal, proof or acknowledgment, 403. from surrogate to chancellor, 425. from surrogate to supreme court, note 44, p. 425. from surrogate to circuit judge, 432. to the chancellor from a circuit judge, 437. BOOKS AND PAPERS. {See Discovery. Inspection, &c. Production, ',--.\ c. CALENDAR, method of making up, 313, note 3. 314. place of appeal cause on, 403. interlocutory orders, appeals from, 405. appeals from courts of common pleas, 440. in couit of errors, on appeal, 416. in court of appeals, note 35, p. 416. CASE, to be furnished court on hearing, 314. in court of appeals, note 30, p. 415. printing, note 32, p. 315. service of, note 33, p. 415. in court of eirors, 415. printing and service. 415. CAPTION, of decrees, 337. of depositions taken on commission, 302. CASE, on the trial, note 6, p. 316. CAUSE, setting down for bearing, pl2, 313. how arranged on calendar, 313, note 3, 314. court may give preference in hearing, 314. submission of, 317. ordering to stand over, to add parties, 244, note 21, 321. to supply proofs, 322. CAUSE OF ACTION. (.See Joinder of Causes op Action.) CERTIFICATE. {See Sheriff.) of counsel, on petition for re-hearing, 356. of probable cause for appealing. 392. of allowance of appeal bond, 402. 930 INDEX. CERTIFICATE— Co?ieal, 406. appeals to. (See Appeal.) senator cannot act as coun.sel, 416. COURT OF COMMON PLEAS, appeal from, fo chancellor, 439. COURT (INFERIOR), appeal from, to supreme court, note 54. p. 439. CREDIT OF WITNESSES, examination as to, 307. CREDITOR'S BILL. amendment of, 210. 924 INDEX. CROSS APEALS. {See Appeal ) to court of errors, 414. to chancellor, from a surrogate, 430. CROSS BILL, 246, and depositions talcen upon, 320. CROSS EXAMINATION, of witness ; no waiver of objections to liis competency, 267. (ASfee Examina- tion.) fees of examiner, upon, 286. D. DAMAGES, in the court of appeals, note 38, p. 421. offer to liquidate conditionally, note 5, p. 316. rate of, in judgment, note 5, p. 339. DEAF AND DUMB PERSONS, appearance by, 67. answer of, 155. DEATH, of a party after appeal brought, effect of, 405. DE BENE ESSE, examination of witness, note 10, p. 270. {See Examination.) commission to examine witness within the state, 298. depositions taken, when they may be read on motion to suppress, 316. on trial of issue at law, 453. DECREE. {See Judoment.) made in the absence of proper parties, 405. iiatui'e, uses and kinds of, 326. 1. Interlocutory decree, 326. •1. Final decree, 339. decree requiring a further order to complete it, 332. reservation of liberty to apply, 332. when a lien upon property of defendant, 347. who bound by, 333. infants, 334, 335. married women, 335. who may take advantage of, 335. distinction between, and decretal orders, 336-37. form of decree, 337. caption and title, 337. recitals. 338. ordering part. 338. declaratory part, 339. must be founded on, and conform to, allegations and proofs, 339 between co-defendants, 339. nuncpi'o tunc clause, 340. drawing up, settling, entering and enrolling, 340 to 346. what decrees may be enrolled, 845. enrollment, when vacated, 346, 366, 367. filing enrolled decrees, 346. docketing, 347.348. lien of. {See Lien.) discharging, 348. rectifying. 1. Before enrolment, 349 to 352. by a re-hearing. {See Re-Heaeinq.) by a supplemental bill in the nature of a bill of review. See that title 2 After enrolment, 36li. by petition. 366. by bill of review, :;69. 923 DECREE— Co?ifi)M/«d. decrees pro confesso, 369. by default, 272. by consent, 37.^. ' cannot be modified or varied without asssent of parties, 351. nor be appealed from, 380. upon appeal. {/See Appeal.) execution of. by what process, 440. \vrit of e-Kecution (&b Execution.) writ of assistance. (*S'ee Writ of Assistance.) process of contempt, 441. injunction to comi)el delivery of possession, 441. proceedings under, 446. DECRETAL ORDERS, what are, 336, 337. when to lie enrolled, 345. consequent upon final decree, appeal from, 388. BE DIE IN DIEM, ^ proceeding, on examination of witnesses before an e.xarainer, 282. before a vice-chancellor, 291. DEEDS, how to be set out in bill, 41, 42. production and inspection of. {See Pkoduotion, ?to.) proving at the hearing, 309. DEFAULT, at the hearing, 323. decrees by, 372. {Sse Decree.) on appeal to the chancellor, 404. on appeal to court of errors. 417. to court of appeals, note 37, p. 417. ' on trial of issues at law, 447. DEFENCE TO A SUIT. {See Sham Defences.) pioceedings prior to putting in, 99. motion to deliver copy bill, 100. demanding copy complaint, note 24, p. 46. demanding copy of account, note 1, p. 100. motion to take iDill from the flies, 100. excepting to bill for scandal and impertinence, 101, note 2. {See Excep- tions.) striking out irrelevant or redundant matter, note 2, p. 101. motion for production of papers, 101, note 3. (-See Production, &c.) motion for bill of particulars, 102, note 4. security for costs, 102, note 5. {See Seookity, &o.) the different methods of defence. {See Answer. Demurrer. Disclaimer Cross Bill. Plea.) joinder of. 138. {See Joinder of Defences.) several defences ; counter claims ; equitable defences, &c., note 44. p. 138. method of setting forth, in answer, 137, note 43. DEFENDANT, when he maybe examined as a witness. 2-57, 262, note 3. {See Witness.) on the part of the complainant, 257. on the part of a co-defendant, 260. entitled to notice of all proceedings, after he has appeared, 372. absent, non-resident, concealed and absconding. {See Absent, &c.. Defendants.) DEFAND, motion to satisfy, part of, note 5, p. 316. of copy of complaint, note 24, p. 46. for relief. ((See Complaint.) 926 INDEX. DEMURRER, to bill or complaint ; its nature and uses, 105, note 8, 106. 106, notes 9, 10, 11. to discovery must be special, 107. speaking demurrer, 107, note 12. several causes of, may be assigned. 107, note 13, 109. separate demurrers, 107, note 14. cannot be good in part and bad in p.art, 107, not.e 15. coupled witb an answer, 108, notes 16, 17. {See Joinder of Defences.) how entitled, 108, 174. to be tiled with answer, as one record, 108. noticing for argument. 174. by married women, 108, note 18. demurrer ore tenuis, 108, 109. must extend to whole bill, 109. only allowed upon new ground, 109. how signed, 109. where to be filed, 109, note 19, 110, 124. when it may be taken under a commission, 174. service of, 110, note 20. noticing for argument. 110, note 21. withdrawing, 111, note 22. hearing, 111, note 2.S. amending. 111. effect' of allowing 111, note 24, 175. effect of overruling, 112. no other demurrer will be received, 112, note 26. frivolous demurrer, 112, note 25. effect of excepting to answer before demurrer is argued, 112. 175. cannot be ordered to stand ibr an answer, 113. taking off the files, 113. {See Taking from the Files.) amending bill, after, 113. note 27 in connection with plea ; noticing for argiunent, 173. for want of parties, 114. for multifarionsne.ss, 40, note 10. for want of an aflSdavit annexed, 47. to amended bill, if not signed by counsel, 222, 225. consequences of omitting to demur, note 28, p. 114. to answer, note 29, p. 114. omissi(ra to demurr, note 28, p. 114. to reply, note 30, p. 114. judgment on, note 31, p. 114. DEMURRER BY WITNESS, 282. {See Examination of 'Witnesses.; DEPOSIT, On rehearing, 359. of money, &c., held in trust, motion for, note 5, p. 316. on filing supplemental bill in the nature of a bill of review 365. on appeal to the chancellor from a vice chancellor, 391. from the chancellor to court of errors, 409. security on appeal to court of appeals, note 27, p. 409. DEPOSITION, before examiner, how taken, 282. {See Examination.) must be signed by witness. 285. suppressing, 286, 287, 288, note 23, p. 302. filing, 289. taken under a (lommission, 302, note 23. signing and certifying, 303. notes 24, 25. exhibits, 304. note 26. to be returned with commission, 304, note 27. copies to be furnished court on hearing, 314. motion to suppress, 316. taken in cross suit, reading upon hearing of original suit, 320. upon trial of issue at law, 452. upon trial of action at law, 467. 927 ri\DEX. DEVISEE, time for appealing by, 407. enforcing decree against, 444, note 10. DILIGENCE, what is. 244. dismissing bill for want of, 243, note 20, p. 244, note 21. DISCLAIMER, what is and when proper, 170. must be accompanied by answer, 170, 171. effect of omitting to answer, 172. allegation of want of interest will not dispense with answer, 171, note 88 form of, 171. must be put in on oath, 171. signing, 171. excepting to, 172. taking from the iile, 172, replication to, unnecessary, 172, setting cause down for hearing upon, 172. dismissing or amending bill, 172. costs of, 172. DISCOVERY, how compelled. 87. not compellable under the Code, note 1, p. 87. against a corporation, how procured, 156. note 76. when officers not bound to make, 156. demurrer to. (See Demurrer.) of books, papers and documents. (See Inspection, &c. Pkoduction, &e.; DISCONTINUANCE, of action, by plaintiff, note 18, p. 225. DISMISSING BILL, by complainant, after answer, a motion of course, 225, not allowed by Code, note 18. p. 225. discontinuance of action substituted, note 18, p. 225. costs of, 225, 226, 227, 228. bill filed without privity of complainant, 227. by one of several complainants, 227. after trial of an issue at law, 465. on disclaimer being filed, 172. after decree, 228. effect of, 228. by defendant, 242, 243, note 20. when cause is ordered to stand over, with liberty to add parties. 244 note 21. for neglect to deliver copy bill, 100. for neglect to file security for costs, 102. on truth of pleading established by the proofs, 121. where there are several defendants, 243. where answer is accompanied by plea or demurrer, 243. after order to amend, 243. for want of proof on examination of witnesses, 291. what is due diligence, 244. who may move. 246. affidavit and notice of motion, 246. effect of, 245. by the court, at the hearing, upon bill and answer, 318. for want of proper parties. 321. for defect of form in pleadings, 323. for default, or neglect to furnish papers, 328. when to be without prejudice, 323, 324. with leave to bring suit at law, 324. upon a contingent event, 324. 938 lynKx. DISMISSING COMPLAINT. {See Complaint.) DISTRINGAS, 443. {See Corporations.) DOCKETING, decree. {See Decree.) judgment. {See Judgment.) DOCUMENTARY EVIDENCE, obtaining admission of, note 5, p. 316. obtaining an inspection of, note 5, p. 316. on examination of witnesses, 291. DOCUMENTS, production of. {See Production, &c.) inspection and copy of, note 5, p. 316. DOORS, breaking, to execute process, 57, 62, 64. E. ELECTION, pxitting complainant to, 246, note 22, p. 247. when motion to be made, 247, 248. suits in foreign courts, 248, note 23. reference to inquire, 247, 248. notice of motion, 248. ENDORSING, (j&e Answer. Attachment. Bill. Complaint.) ENGROSSING, answer, 141, note 50. bill, 43. pleading.? and other proceedings, note 17, p. 43. ENROLMENT, of decree. (/&c Decree.) EQUITABLE DEFENCES, note 44, p. 138 ; note 89, p. 173. (-See Defence to a Suit.) EVIDENCE. {See Examination or TVitnesse-s. Testimony. "Witness.) of party examined as a witness, 286. upon re-hearing. (jSee Re-Hearing.) upon appeal. {See Appeal.) to court of errors, 419. bill taken pro lonfesso. 372. EXAMINATION OF PARTIES, of a person pro interfuse suo, under a sequestration, 73, of defendant on interrogatories, on overruling plea, 125. on a third answer reported insufficient, 199. mode of examining, 200. sufficiency of examination, 200. master's report upon 201 . re-examination, 201. of parties on issue at law, 449, 450. in an action at law directed by court, 466. EXAMINATION OF WITNESSES, generally, note 29, p. 308. before or at the hearing, methods of, 269, note 9. I. De bene ease. in what cases resorted to, 270, note 10. within what time to be had, -271. notice of application for, 272. affidavit, 273. Vol. I.— 59 9?9 ISDEX. EXA.MINATION OF WITNESSES— Co»««^terf. ^ order for, 274. where applied for by defendant. 274. by whom examined. 274. under a commission, 274. mode of taking, 274. notice of, 275. by summary proceedings under the statute, 276. proceedings to perpetuate testimony, note 11, p. 277. II. By an examiner, in what cases, 277. by what examiner, 277. at what time to be had. 277. order to produce witnesses. 277. enlarging time to examine, 278. notice of examination, 278. attendance of witnesses, how compelled, 279. subpoena duces tecum, 279. service of subpoena, 280. jjroceedings against witnesses failing to attend, 280. furnishing names of witnesses, 280. proceedings before examiner, 281. examinations, public, 281. witnesses to be examined orally, 281. oath to witnesses, 281. parties and counsel may attend, 281 . method of examining witnesses, 282. use of notes by witness. 282. demurrer by witness, 282. interpreter, 285. signature to depositions, 285 practice where witness is in prison, 285. where witness is sick, 286. cross-examination. 280. effect of. 287.' re-examination, 287. how long examination may continue, 287. objections to competency of witnesses, 287. filing depositions, 289. III. Examination by a vice chancellor, 289. in what cases allowed, 289. when to be applied for, 289. special cause to be shown, 290. notice of motion for, 290. hearing of application, 290. time and. place of examining witnesses, 290. notice of examination, 290. furnishing names of witnesses, 291. postponing examination. 291. mode of e.xamining witnes.ses, 291. examining a defendant, 291. motion to dismiss bill, 291. examination, how to proceed, 291. documentary evidence, 291. testimony to be drawn up, 292. to be settled by vice chancellor. 292. statement to be Bled, 292. ' IV. By commissioners upon a commission, 292. ()&e Commission to Examinb Witnesses.) V. By the court at the hearing, 306. VI. As to the credit of witnesses, 307. in what cases proper, 307. at what time to be had, 307. At the trial; method of examining, note 29, p. 308. 930 INDEX. EXAMINER, office of, abolished, note 9, \y. 269. examination (5f witness by, 277. {See Examination of Witnesses.) EXCEPTIONS, • to bill for scandal and impertinence, 41, note 12, 101. note 2 to complaint not allowed by Code, note 2, p. 101. to disclaimer, 172. to answer. to be answered in connection with amendments^ 160. to answer accompanying plea, 124, 175. 1. For insutiiciency, 176, note 2. not authorized by the Code, note 2, p. 176 object of, 176. in what cases allowed, 176, 177, 178. not where oath is waived, 143. to answers to amended bills, 178. 179, 180, 197. to further answer to amended bill. 179, 196. waiver of exceptions, 180. effect of, 181 to 184. form of, 161, 182. new exceptions, 182, 196. amending or adding to, 182. abandoning, 186, 189. within what time to be filed, 183, 184, 185. 204. obtaining further time, 184. filing and service of, 185. submission to, 185. reference of, 186, note 3. master's repoi-t on, 187, 189. exceptions to, 190. proceedings for a better answer, 193, note 4, 198, note 5. form of further answer, 195. third answer insufficient, 198. 2. For scandal and impertinence, 202, note 6. nature of scandal and impertinence, 202, 203. when and by whom taken, 202, 203. will lie, though oath waived, 143. how taken, 203. 204, 197. when to be filed, 203. ^, „,,. .^ submission to, 203, 204. referring, 204. > master's report upon, 204. papers necessary on hearing, 315. I costs of exceptions to answer, (j&e Costs.) EXCEPTIONS OR CASE ON APPEAL, note 18, p. 889. on the trial, note 6. p. 316. EXECUTION, WRIT OF, nature of the process, 441. the different kinds of, note 1. p. 441. against property, note 1, p. 441. against the person, note 1, p. 441. against married women, note 1, p. 441. discharge from imprisonment, note 1, p. 441. setting aside, note 1, p. 441. for the delivery of the possession of real or personal property, note 1, p. 441. writ of assistance, 441 . how issued, 441, note 4, 442. to what counties, note 5, p. 442, necessity of issuing, 441. note 3. not to be altered or issued in blank, 441. 442. when and upon what decrees, 442, note 6. in what cases and at what time ; leave to issue, note 6, p. 442. 931 INDEX. EXECUTION, WRIT OF—Continmd. judgment roll must first be filed, and judgment docketed, note 7, p. 442. for collecting costs, 442, note 8, 443. against corporations, 443. ((See Coepokations, Distrijtgas. Se(IDESTR.*.tiox.1 numicipal corporations, note 9, p. 444. absent defendants, 444. heirs, devisees. Sac, 444, note 10. lands held in trust, 445. form of, note 2, p. 441. levy, and lien of. 445, note 11. sale of property upon ; redemption, note 12, p. 445. setting aside, note 12, p. 445. return of, note 13, p. 445. generally ; order of priorty ; duties and liabilities of sheriff, note 14, p. 445 proceedings supplementary to. (See Proceedings.) EXECUTOR, when a competent witness, 258, 261. appeal by, time for bringing. 407. EXEMPT PROPERTY, note 12, p. 445. EXHIBITS, when to be filed by examiner, 289. before commissioners, under a commission, 304. how indorsed, K04, note 26. abstracts of, on hearing, 814, 315. F. FIEGNED ISSUES. {See Issue at Law.) power of court, in awarding, 463. drawing up and settling. 463. service yf, as settled, 463. proceedings in court of law, 464. in chancery, after trial, 464. new trial, 464. on appeal from a surrogate to circuit judge, 434. dismissal of bill, after trial, 465. abolished by Code of Procedure, note 5, p. 463. FEES, of witnesses, for attending before examiner. 280. of examiner, upon cross-examination, 286. of circuit judge, on appeal from a surrogate, 436. FOLIO, definition of, 45. in pleadings, to be marlted in margin, 45, note 21, 141, note 51. consequences of omitting, 45, note 21, 141, note 51. FOREIGNER, answer of, how taken, 154. FOREIGN CORPORATION, service of summons upon, by publication, 92, note 3, p. 96 FRAUD, a ground for new trial of issue at law, 457. IRIVOLOUS ANS\^ER, 141, note 49. .FURTHER ANSWER, proceedings for. 193, note 4. order for, 193, 194, note 5. order for attachment, 194. when to be filed, 194, 195, form of, 195. signing and filing, 197. 932 I.XDEX. FURTHER ANSWER— Cb«- examination of parties, 449. special jury, 450. -^ ■ view, 450. . ■ '.\. defendant mustname an attorney, 450. judge bound'fo try, 450. , proceedings upon trial, 451. minutes of court belowi;«454. judge's certifict^te,'454. new trial, when and how to be applied for, 454. when and for what reasons gi-anted, 456. effect of verdict on first tnal upon the second trial , 460. further directions, 460. costs of, 462. , ^ - J- ,1 of motioii-for new triai,'^63. appeals from orders respeetin^, \*heii a stayl>f proceedings, 390, 393. under the Code of^vocedvfre (references are fo foot-paging). in what cases directed, and by whom and how tried, 885, 889, 904. when they may be referred, 885, 889. notice of motion for trial by jury, 885, 888. gi'anting of, not a matter of course, 886.,.^ judge may submit additional issues to jiirj-, 886. time of applying for, 886. ' fi' order for, 904. in divorce cases, 889, 905. in what court to be tried. 889, note S. ^ new trial of. 896. note 4. »- ^' ., -^ . JOINDER OF DEFENCES. (-See Countek-Claim.) in what cases allowed, 138, note 44 \ 173, note 89. method of, 173, 174. /> .lOINDER OF CAUSES OF ACTIOnT^n, 'J in bill, 40, ' / in complaint, note 11, p. 40. JUDGMENT. (Referejices are to foot-paging.) what is, 643,, notes 1, 2. a final determination, 643, note 2. no interloculory judgment under Code, 644, note 3. form, validity and effect. 655, note 4. ibr and against, what parties, 657, note 4. affirmative relief to defendant, 659. .^ against one or more of several defendants, 659;5** dismissal of complaint, 359, note 20, 660, note'%. against married women, 660. against infants, 661. when it takes eftect, 661. the relief granted, 663, note 5. • rate of damages, 665. for or against one or more of several parties, 665, note 6. as to rights of parties on each side, as between themselves. 665. drawing up and settling, 667, note 7. entering, 668. nunc pro tunc, 670, note 9. 936 J UBGyiEI^T— Continued. enrolling, judgment roll, 670, note 10. docketing ; lien ; discbarge and satisfaction of. 676, note 11. modifying, altering or amending, on motion, 685, note 12. re -hearing, 686, note 13. rectifying, modifying and amending, 699, note 14. by bill of review, 704, note 15. vacating or setting aside, 705, note 16. on failure to appe.ir at the trial, 182, note 2. on failure to answer, 193, note 4. opening and setting aside, 711, note 18. by consent, on the offer of a party, 201, note 5. by confession, 714, note 20, on frivolous demurrer, 247, note 25, entered on direction of a single judge ; appeal from, 765. on report of referee, 638. appeal from 765, dismissing complaint, 640, note 7. uu appeal 761. service of copy of, 840, note 3. on a irivolons reply, 840, note 3. on report of referee, 638. JURAT. (S'!e VERiFioiTioN.) to bill, form of, 44, 45, note 58, p. 145. to complaint, note 20, p, 44, to answer 144, note 57, 145, note 53. of an illiterate person, 155, in case of several defendants, 145. before whom, 145. irregularity in, note 58, p. 145. open to objection at all times, 170. JURISDICTION, clause of, in bill. 36, must api)ear from bill. 36 case within, must be stated, 39. note 5. amount necessary to confer, 39, note 6. of supreme court, note 5, p. 39 (p. 56. foot paii'mo.) of superior court and court of common pleas, of New Tork, note 5, p. 39, objection to; may be i-.iised by plea, 115. at the hearing, 320. K. KNOWLEDGE, method of answering as to, 133, note, 38. L. LETTERS ROGATORY, (See Commission,) LIEN, (See Judgment,) of decrees, upon defendjint's property. 347. ceases after ten yeai's, 347, from time of docketing in county clerk's oflice, 348, where it commences at time of docketing, 348, from time of perfecting, 348. of judgments, note 11, p, 347, note 54, j), 439. LIMITATIONS, STATUTE OF, plea of, when to be sworn to, 118, LUNATICS, ro ♦ 19 subpoena (dr summons), how served on, 52, note 12, appearance by. (See Appeakance.) , 937 INDEX. LUNATICS— aoTiimwetJ. answer of, how compelled, 88- not received without oath and signature 154. is similar to that of an infant, 154, note 73. appointment of guardian, 154. competency as witnesses, 255. M. MARKING PAPERS, submitted for decision. 317. on hearing before vice chancellor, 385. in opposition to motions, 385. MARRIED WOMEN. subpoena (or summons), how served on. 50, note 6, 83, 154. appearance by, 82, note 10, 83, note 11. {See Appeakanob.) answer of, 82, 83. how compelled, 88, 151, note (g.) must be put in by husband, 150, note 67. order to answer separately, 150, 151, note 68, 152. contents of, 1.52. 153, note 69. what need not be stated, 158. separate answer, 154. joint': of husband and wife, 153, 1.54, notes, 71. 72. publication of order to appear against, 154. dismissal of bill in name of. against husband, 226. competency of, as witness for or against husband, 264. decree agninst, when bound by 335. relief against, 335, 370. cannot'demur separately, without leave, 108. .judgment ag'.unst, note 4, p. 337. MASTER, when not authorized to approve an appeal bond, 401, MINUTES OF COURT, .papers to be entered in, upon the hearing. 315, 385. may be corrected, on motion, 315, 385. to be annexed to petition of appeal, 411. on trial of issue at law, to be sent to court of chancery, 454. MOTION, to satisfy part of demand admitted, note 5, p. 316. to compel deposit of money, &c., held in trust, note 9, p. 444. to modify, alter or amend judgment, note 12, p. 351. MULTIFARIOUSNESS. (.See Co.vplaint.) in bill, 40, note U. in complaint, note 11. p. 40. demurrer to bill for, when not overruled by answer, 108. ' MUNICIPAL CORPORATIONS, e.\.ecutions against, note 9, p. 444. N. NAMES, of parties to be inserted in complaint, note 3, p. 35. of the court in which action is brought, note 3, p. 35. of the county mentioned as place of trial, note 3, p. 35. of witnesses, before an examiner, to be furnished, 280. on an e.-camination before a vice chancellor, 291. NE EXEATS, to be asked for in prayer for process, 37. affidavit to be annexed to bill, to prevent discharge of, 47, 48. appearing gi-atis, to procure discharge from, 81. 938 INDEX. NEW TRIAL, note 6, p. 316. {See Action at Law. Feigned Issue. Issite at Law.) NOTE OF ISSUE. (&e Hearing.) NOTES, use of, by witness, when allowed, 282. NUNC PRO TUNC, clause in decree, 340. entering decree, 341, 341. 405, 421. judgment, note 9, p. 341. tiling replication, 252. enrolment of decree. 343. filing appeal bond, 403. 0. OATH. {See JuE.iT.) to bill, 44. when necessaiy, 44. form of, 44, 45. by whom made, 45. {See Agent. Attokney.) to complaint, note 20. p. 44. to answer, when required, 142, note 54. by consent, it may be without, 142, note 55, 143. waiver of, 36, 143, note 56. effect of waiver, 143, 144. will not dispense with signature, 96. wlien answer must be sworn to. notwithstanding. 144 form of, 144, note 57. before whom to be taken, 145, note 59. by non-resident, 145 out of the state, 146. note 60. answer of a foreigner, 154. to plea. when necessnry, and when not, 117, 118. when it need not.be positive, 118. consequences of omitting. 118. to witness, by an examiner, 281. to interpreter. {See Interpreter.) to commissioners, under a commission, 300. to witnesses and intei-preter, 301. .. ' OBTAINING ADMISSION, of documentary evidence, note 5, p. 316. OBTAINING AN INSPECTION, of documentary evidence, note 5, p. 316. OFFER, to compromise, note 5. p. 316. to liquidate damages conditionally, note 5, p. 316. judgment by consent upon, note 5, p. 816. PAPERS. {See Marking Papers.) to be furnished on hearing, 314, note 4. by whom to be furnished, 315. {See Hearing.) used before vice chancellor to be entered in minutes, 315, 385. how to be marked. 385. submitted, how to be marked and entered, 385. on motions and petitions. 317. in opposition, how to be marked and entered, 385 necessary on enrolment of decree. 344. how transmitted, 345. 939 rXDKX. PAFERS—Obntinued. on appeal, generally, Iiow entit'.ed, note 18, p. 399. to court of errors, 411. how entitled. 405. to chancellor from surrogate, 431. to supreme court from surrogate, note 51. p. 431. transmission of, to appellate court, note 18. i>. 390. PARTIES, who are, note 8, p. 39. are those against whom jirocess is prayed, 87, 38. rules respecting, not changed by Code, note 8, p. 39. must be named in complaint, 35, note 3. who, and how, named ; official or representative character, note 3. p. 35 how designated, on appeal, note 18, p. 399. plaintiffs, note 8, p. 39. defendants, note 8, p. 39. joinder of, note 8, p. 39. defect of, how taken advantage of, note 8, p. 39. by plea, 115, 116. objection for want of. at the hearing. 320. by whom taken, 320, 321. how obviated, or cured, 320, 321. should be on opening the pleadings, 320, 321. ordering other parties to be brought in, note 8, p. 39. ordering cau.se to stand over to add. 321. .substitution of. note -8, p. 39. entitled to be heard on appeal, 395. effect of decree made in absence of, 321. on appeal, m:iy be added by amendment, 398. should be named in petition of, 410 to the chancellor from a surrogate, 428. from a circuit judge, 438. to the supreme court from a surrogate, note 48, p. 428. to a circuit judge, from surrogate, 434. to an action at law, 467. generally, under the Code, note 8, p. 39. examining as witnesses, 255, note 1. {/See Witness.) imdcr a commission, 298. PAYMENT OF MONEY INTO COURT, on application by complainant against defendant, 236. time for making. 236 in what cases ))roper, 237, 238, 239, 240. in what time money to be paid in, 241. effect of payment. 241 . mcmey, how deposited and invested, 241. PERSONAL PROPERTY. sale upon execution ; what is exempt, note 12, p. 445. PETITION, for a commission to examine witnesses, 293. of appeal from a vice chancellor to chancellor, 401. from chancellor to court of errors, 409. cross petition, 414. to chancellor from a smrogite, 425. to supreme court, from a surrogate, note 45, p. 425. from a siirrogate to circuit judge, 433. PLEA, nature and uses of. 114. abolished by the Code, note 32, p. 114. form of. 115. signature, 117. when it must be upon ontli. 1 17. when to be fi'.ed, 119, note 33. 940 INDEX. PLEA — Continued. replication to, 119. (anying a disclaimer, 172, 249. nature and office of, 249. form of; signature, 230. special, 250, note 3. within what time to be filed, 2o0, 2ol, extending time to reply, 2oi. filing mtiK- pro tunc, %o2, note 8. effect of filing, 252. withdrawing, 253. REPLY, note 1, p. 249. (References below, underthi.i head, are to foot-paging.') when allowed ; when necessary or proper, 469. motion for judgment, on failure to reply, 472. demurrer to, 474. form'and requisites of, 475. when to be served, 476. enlarging time for replying, 477. supplemental reply, 479. judgment on frivolous reply, 480. RESTITUTION, 703 (foot-paging). SALES ON EXECUTION, note 11, p. 445. SATISFACTION OF JUDGMENT. (See Judgment.) SCANDAL, definition of, 41, ,202, 203. excepting to bill for, 41, note 12. how expunged from bill, 41. in answer, exceptions for. (See Exceptions.) no cause for dissolving injunction, 208. in complaint, note 12, p. 41. SCANDAL AND IMPERTINENCE, note 12, p., 41. in bill, 41, note 12. in answer, 41, note 12. exceptions for, 201, note 6. exceptions for, in complaint, not authorized, 101, note 2. not a ground for demurrer, note 12, p. 41. SECURITY FOR COSTS, in what cases defendant may apply for, 39, 102, note 5. 103, note 6. on striking name of a complainant out of bill, 227. how applied for, 102. 944 INDEX. SECURITY FOR COSTS— Co?iiimecf. order for, form of. 102. increase of amount, 102, note 6. muy be applied for at any stage of suit. 103. liow given ; bond ; exceptions to ; justification, 104. on directing action at law to be brought, 468. li.nbility of solicitor for not filing. ((See Solioitok.) SEQUESTRATION, nature of, when used and to whom directed, 68. when issued, 68. obtained upon motion only, 69. order for, 69. writ, how indorsed, 69. when to be executed, 69. how to be executed, 70. what things may be seized under, 70. powers and duty of sequestrators, 71. attornment of tenants, 71. sale of goods, 72. sequestrators to account, &c., 72. writ of assistance, 72. examination pro intercsse suo. TS, note 19. injunction to stay proceedings at law, 74. when trial at law or reference will be directed, 74. effect of appointing a receiver. 75. abatement of suit by death of parties, 75. sequestrator abusing his power, 7'> costs, 73. against corporation, to compel answer or appearance. {See Corporations.) to enforce decree. {See Execution.) against absent defendants, 444. SERGEANT-AT-ARMS, sheriff substituted for. 66. duty and power of, 66, 67. not to take bail, 67. SHERIFF, his duty on attachments. {See Attachment.) to attend the stated terms of the court, 66. to execute duties of sergeant-at-arms, 66. may execute process in any part of the state, 66. may serve summons, note 16, p. 53. duties and liabilities on execution, note 14, p. 445. certificate of sale, note 14, p. 445. of service of summons, note 18, p. 54. SHERIFF'S DEED, note 14, p. 445. SEVERAL CAUSES OF ACTION, note 11, p. 40. SEVERAL DEFENCES, note 44, p. 138. {See Joinder of Defences.) SHAM DEFENCES, note 48, p. 141. SIGNATURE OF COUNSEL. (/See Counsel.) SOLICITOR. (-See Attorneys.) how retained, 99 his authority,' 99, 100. liabilit}' for costs, when security is not filed, 102, 103, note 5, p. 202. {See Security for Costs.) must sign bill, 43. demurrer, 109. replication, 250. liability for costs, on dismissal of bill filed by him without authority, 226. for using party's name without his consent, 227. of motion to suppress depositions, 288. or to expunge testimony, 288. C Vol. L— CO 945 INDEX. ^OlACWOU— Continued. in court of errors, same as in court below, 415. senators not allowed to a])i)ear as solicitors, 416 STATEMENT OF FACTS, by general term, on appeal, note 23, p. 406. STAYING PROCEEDINGS, until security for costs is filed, 102, note 5, 104. on application for a re-hearing, 359. when appeal operates as a stay, 388. {See Appeal.) SUBMISSION OF CAUSE, 317. SUBPCBNA TO APPEAR. (See Summons.) what is, and when to issue, 49. form of, 49. when to be tested, and made returnable, 50, 51, 53. "signing and sealing, 50. service of, 50. on married women, 50. when defendant is absent from home, 50. on a prisoner, 50. when defendant has no family 51. \ out of the state, 51. when to be made, 51. on infants, 51. on lunatics. 52. on a corporation, 52. on the United States, or state. 52. extraordinary, or substituted, 52. by whom to be made, 53. alias or plur'ies writ. 53. second, when issued, 54. SUBPCENA TO TESTIFY, before examiner, 279. service of, 280. diii-es tecuin, 279. to testify viva voce at the hearing, 312. before commissioners, 295. SUMMONS, to appear, note 1. p. 48. (References are to foot-paging.) all actions commenced by, 114. what is a commencement, 114, 115. office of, 115. issues of course, 115. form of. 116. subscription. 116, 117, 118. notice to be inserted in, 118. name of court, 117. names of parties, 117. amendment, 117. signature of attorney, 121. service of; insufficient service ; mode of objecting to, 121. by publication. 184. on husband and wife, 125. where to be made, 126. when to be made, 126, 127. on lunatics, 128. on corporations, 129. foreign corporations, 130, 131. Express corporations. 131., foreign life and health insurance companies, ISl. foreign fire insurance companies, 131. rail road corporations, 130, 131. substituted service, 133. 946 I.XDSX. SUMMONS— Cfmimtteti. by whom made, 135. proof of, 137 further process, 180. SUNDAY, attacliTiicnt cannot be executed on, 57. nor commission of rebellion, 04. subpoena to appear not returnable on, 50, 51. SUPERIOR COURT OF NEW YORK. (See Jckisdiction.) SUPPLEMENTAL ANSWER, in what cases proper, 105, note 84, 160. leave to file, when to be applied for, 167. terms of granting, 168. amending, note 84, p. 165. SUPPLEMENTAL BILL, in the nature of a bill of review. nature and use of, 302. application for leave to file. 864. in what time to be filed, 365. when to be heard, 365. deposit or security. 365. will not sustain original bill, if it is wholly defective, 365. taking from the files, 305. SUPPLEMENTAL COMPLAINT, note 84, p. 105. SUPPLEMENTAL PLEADINGS, note 84, p. 165. SUPPLEMENTARY PROCEEDINGS. (See Proceedings.) SUPREME COURT, jurisdiction of. (See Jurisdiction.) appeal to, note 11, p. 390 ; note 14, p. 395. (■See Appeal.) ])Owers and functions of court of chancery transferred to, 56. (Foot paging.) SURETIES, in appeal bond, 402. SURPLUSAGE, note 2, p. 101. SURPRISE, a ground for new ti'ial of issue at law, 457. SURROGATE, appeal from, to chancellor. (See Appeal.) return of transcript by, 420, 427. appeal from to circuit judge. (See Appeal.) return by, 433. duty as to wills, after decrae ou, 485. may enforce payment of costs on, 435. T. TAKING FROM THE FILES. bill, for being filed in the name of a non-compos. 100. amended bill, if not signed. by counsel, 221. demun-er. filed after attachment for want of an answer, 110, 113. plea, for want of an oath, 118. disclaimer, if not accompanied by answer, 172. supplemental answer, 106, 169. answer, for irregularity in frame, or form, 168. for irregularity in taking, or filing, 168. separate answer put in without leave, 168. for being evasive, 169. of husband and wife, 90, 152, 169. taken under a comrais.sion, for defect in jurat, 169. for production before grand jury. 169. 947 INDEX. TAKING FROM THE FILES— CorafiraMed. application for. 170, 181. prevented by exceptions to answer, 181. TESTIMONY, when to be taken, 254. taken down by examiner, subject to objection, 288. motion to expunge, 288. notice that cause is in readiness for taking, 290. at the hearing, 308. what may be proved, 309. Oi'der for taking proof at, 310. examination of witnesses, 311. subpoena to testify lAva voce, 312. of witnesses, how taken, 254-308. (See Examination of 'Withesses.) on the trial, note 29, p. 308. ( on the trial, or conditionally, or upon commission, 510, 517. before trial. 511. how compelled to attend, 512. testimony of party examined may be rebutted, 513, 514. effect of refusal to testify, 513. when the i)erson for whoso benefit the action is brought or defended may be examined, 515. order to produce, 277. fees for attendance, 280. subpccna to compel his attendance before examiner, 280. proceedings against, on fiilure to attend, 280. names of. to be furnished, 280. 291. upon a trial of issues at law, 451, 452. on examination in proceedings supplementary. {See Pkooeedings.) TVRIT OF ASSISTANCE, may be applied for by sequestrators, 72. for giving possession of land, under a decree, 441. END OF VOLUME I. 930