Fn 
 
 QJortipll IGaui ^rljonl Sjtbrarg 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924024688503 
 
PUTEEBAUGH^S 
 
 Common Law Pleading and Practice. 
 
 (COMPANION WORK TO POTERBAUGH'8 CHANCERY PLEADING AND PBACIICi;.) 
 
 A practical treatise oa the general principles of pleading, common law and 
 statutory remedies and defenses : containing 867 pages, embracing 348 practi- 
 cal forms of declarations, pleas, replications, rejoinders, etc., and other papers 
 necessary in the practicS, with elaborate notes following each form. Printed 
 in best style on the finest 60 lb. paper, and bound in the best style of law 
 binding. 
 
 This work has been almost entirely re-written, especially the forms, which 
 have been carefully revised, and generally shortened. Many new forms have 
 been added, among others, forms of declarations in actions under the Liquor 
 Law of 1872, etc., etc. 
 
 PRICM $6.50 FJER COPT. 
 
 PUTERBAUGH & PUTERBAUGH, 
 116 and 118 N. ADAMS ST., PEORIA, ILLINOIS. 
 
 iiEOO]Nd:]y:Eiisrr)A.TiONS 
 
 TO THIRD EDITION. 
 
 (From The Chicago Times, April 18th, 1873.); 
 
 PcTEEBATTQH'a COMMON LAW Pleadino AND PBAcnoE.— This IS a hanflsome volume 
 in the large type and Inevitable binling of legal literature. It ia professedlv only a 
 third edition of Judge Puterbaugh'a well-known and equally well-approved book ; but 
 In fact, it has been almost entirely re-written, e-peolally the forma, which have been 
 parefiiUy revised and generally shortened. In its present form It does for the profession 
 in Illinois what Chitty's incomparable work did for the bar of England. It is a com- 
 plete code of common law practice in Illinois; but In addition to this it treats of attach- 
 ment, 8C(r« /ociai, maaiamus, quo warranto, certiorari, a,ni habeas corpus,- also of the 
 details of practice, such as security for costs, change of venue, continuances, amend- 
 ments, evidence, (witnesses, deposition', etc.). jury, trial and verdict, new trials, arrest 
 of judgment, confession of judgment. Under the various heads practical forms are given 
 wherever necessary, and very full reference^? to the authorities are made throughout, 
 particularly to Illinois reports. Though an Illinois book, it will be useful and conven- 
 ient in such other of the states as retain the common law practice. Where precedents 
 in like cases were found in Chitty, their general framework has been retained; but re- 
 dundant words and averments rejected. New forms have also been added ; among 
 otheiB, forms of declarations in actions under the liquor law of 1872. 
 
 The plan of the work will be recognized by the profession as sirtLple and convenient. 
 At the beginning of the chapter upon a particular species of action are some, general 
 observations upon the nature of the action, tne cases in which it is the proper remedy, 
 etc. Then follow forms ot declarations in particular cases ; then the defenses to ilie 
 
action are treated of, and the forms of pleas, replications, etc., are given. Under the 
 various forms are remarks upon the actions, or defenses, "With references to the authori- 
 ties. For example, under the forms of declarations hy indorsees against Indorsers of 
 promissory notes, an epitome of the law of Illinois in that regard is given, from the 
 . statutes and adjudged cases. • 
 
 The style of the author is exceptionally good, language being used with great clear- 
 ness ai d precision. It will be of interest to the i»rofession to learn that Judge Puter- 
 baugh intends publishing shortly a companion volume— a work on pleading and 
 practice in tuits in chancery. 
 
 (From the CIdmgo Legal News, April 8th, 1873.) 
 
 Ptjteeeaugh's Common L \w Pleading akd Peactice. — The present edition ol this 
 work comprises a volume of 867 pages. It is upon the same general plan as the former 
 editions, but the whole work has been thoroughly revised, greatly Improved, and 
 almost entirely re-written; the fttrms have the appear-^nce of having been carefully 
 corrected, and in many of them shortened, and new ones have been added ; it has also 
 been changed to suit our recent statutes upon pleading and practice, and many ad" 
 ditional authorities have been consulted and cited in the notes. The references to the 
 Illinois reports include the 65th volume. This edition also contains forms for declara- 
 tions under the various provisions of the act of 1872, to provide against the evils 
 resulting from the sale of intoxicating liquors in this state. The present edition is a 
 great improvement upon any former one, and will be found to be a usefu i and valuable 
 hand-book to any 11 inois lawyer who consults its pages. It is entirely free from the 
 rubbish of ages. The author assumes to give the practice as it is, and not as it was a 
 hundred years ago. 
 
 (From Chief Justice Lawrence, of the Supreme Court.) 
 
 GctUstmrg, minois, Aprtt Uh, 1873. 
 Hon. S. D. Puterbaoqh, 
 
 Dear Sin I have examined, with some care the third edition of 
 your work on Pleading and Practice. It will, in my opinion, be of great use to prac- 
 ticing lawyers, and especially to young praoti loners of this state. Its forms of pleading 
 are carefully prepared and sufiaciently numerous to cover almost every variety of suit 
 in the different common law actions. • The legal principles applicable to each action 
 are carefully .stated, and the cases sustaining them are fully cited from our reports and 
 those of other sfates and of England. The rules of practice in the conduct of a suit to 
 final judgment are also clearly and concisely presented. I hope the work may meet 
 ■with such acceptance fiom the bar as to reward you for your labor. 
 
 Yours very truly, C.B.LAWRENCE. 
 
 (From Justice Walkee, ol the Supreme Court.) 
 
 Eushi'ille, lUiiwii, March Zlst, 1873. 
 Hon. S. D. Putekbatigh, 
 
 Dear Str : I have examined with some care, and as far as time 
 would permit, a copy_of the third edition of your work on Pleading and Practice. I find 
 it much enlarged and g-eatly improved, both in the matter and in the precedents. It 
 seems now to be what has been much needed by the profession, a convenient and reli- 
 able work that must save time and facilitate the labors of the practitioner, and should 
 be in the library of every lawyer. I hope it may meet with an extensive sale and your 
 labor receive the reward it merits in preparing so valuable a contribution to the 
 
 profession. ^ 
 
 ti I am, sir, yours, etc., P. H. WALKER. 
 
 (From Justice Scott, of the Supreme Court.) 
 
 Bloomington, lUinoit, April 3rd, 1873. 
 Hon. S. D. PtjTERBATTOH, Peoria, lU., 
 
 Sir: I have examined your "Common Law Pleading and 
 Practice," and find it a very valuable work. It has evidently been prepared with great 
 care and thorough knowledge ot the subj ect treated. It will be of great service to every 
 practicing lawyer and especially in Illinois, and I have no doubt it will be received 
 with favor. ~ ^ 
 
 Respectfully, JOHN M. SCOTT. 
 
PUTERBAUGH'S 
 
 CHANCERY 
 
 PLEADING AND PRACTICE. 
 
 A PRACTICAL TREATISE ON 
 
 THE POEMS OF CHANCEET SUITS, PLEADINGS AND PEACTICE, WITH 
 
 FOEMS OF BILLS, ANSWERS, PLEAS, DEMUREBES, EXCEPTIONS, 
 
 PETITIONS, ORDERS, DECREES, AFFIDAVITS, ETC. 
 
 SABTN D. PHTERBAUGH, 
 
 (Late one of the Tifcuit Judges of Illinois.) 
 
 REVISED, EE-WnlTTBN AND SPECIALLY ADAPTED TO THE STATUTES, 
 DECISIONS AND RULES OP PRACTICE OF THE 
 STATE OF MICHIGAlf, 
 
 ORLANDO W. POWERS, 
 
 Of the Micliigan Bar. 
 
 PEORIA, ILL.: 
 PUTEEBAUGH & PCTERBAUGH, PUBLISHERS. 
 
 1S82. 
 
Entered according to an Act of Congress, in the year 1882, by 
 
 SABIN D. P0TERBAUGH, ; 
 
 In the Office of the Librarian of Congress, at Washington. 
 
 &TBREOTYPED, PR[NTED AND BOUNO 
 
 tHE CHICAGO LEGAL NEWS COMPANY. 
 
INTRODUCTION". 
 
 The object of this work is to present in one volume, of 
 convenient size, a practical treatise on pleadings and practice 
 in suits of chancery, and proceedings of like nature, and to 
 suggest forms for pleadings and other papers necessary for 
 preparation by the practitioner. 
 
 The analysis of contents fully indicates the scope of the 
 work. 
 
 The original edition was published in 1874, and was more 
 specially adapted to the practice in Illinois, although it met 
 with favorable reception in States and Territories where sub- 
 stantially the same system of practice prevailed. In 1880, 
 the work was revised to meet the change in the statutes of 
 Illinois, relating to the several subjects embraced in the trea- 
 tise, and to include the latest decisions of the courts of that State. 
 
 The publication of the work, specially adapted to the State 
 of Michigan, has frequently? been suggested and encouraged 
 by leading jurists and members of the profession in the State. 
 The author, not being familiar with the practice in Michigan, 
 upon the recommendation of Judges Ooolet and Graves, oi 
 the Supreme Court, and others, secured the services of Oelando 
 W. PowEKS, Esq., of the Michigan Bar, to revise, re-write and 
 adapt the work to the statutes, decisions and rules of that 
 State. How well he has performed that duty, is disclosed by 
 the following pages. 
 
 In submitting this edition, it is hoped it will meet with 
 the same favor from the profession as the former works of the 
 same author. 
 
 Peoeia, III., September 1, 1882. 
 
 S. D. Pdteebaugh. 
 (in) 
 
II^TEODUOTIOJS" TO THE MIOHIGAK" EDI- 
 TION. 
 
 In the year 1874, Hon. Sabin D. Putebbattgh, of Illinois, 
 presented to the legal profession of the State of Illinois bis 
 excellent treatise upon chancery pleading and practice. In 
 1880, a second and revised edition was published. The work 
 has been received by the bench and bar of that State, as one of 
 great merit; audit is found in the library of nearly every 
 practicing lawyer in Illinois, and is largely used in other 
 States and Territories where a like practice prevails. 
 
 The need of a work of like character by the profession in 
 Michigan has long been felt, and led to the preparation of the 
 present edition. Neither time nor labor has been spared to 
 make it correct, and as complete as the limited space of one 
 volume of convenient size, would permit. 
 
 The decisions of the Supreme Conrt of Michigan and nu- 
 merous other authorities, have been carefully examined, and 
 cited, in connection with the various matters under considera- 
 tion. The original text of Judge Puteebaugh's Illinois trea- 
 tise has been carefully revised, and much of it entirely re- 
 written. The statutes, decisions and chancery rules of Mich- 
 igan, pertaining to the subject-matter of the work, are cited 
 under the appropriate chapters, and it is hoped that the re- 
 sult will prove satisfactory to the profession. 
 
 It is proper to state that the index of this work was pre- 
 pared by Mr. Chas. A. Johnston, of the Kalamazoo bar, who 
 has rendered valuable assistance in the preparation of this 
 edition. 
 
 Kalamazoo, Mich., Sept. 1, 1882. 
 
 O. W. Powers. 
 
 (IV) 
 
ANALYSIS OF CONTENTS. 
 
 CHAPTER I. 
 GENERAL PRINCIPLES OF EQUITY PLEADING 3 
 
 CHAPTER II. 
 
 COMMENCEMENT OP A SUIT IN CHANCERY 5 
 
 Section 1. How commescbd 5 
 
 By bill— By information. 
 
 2. WnBRK COMMBNCKD 6 
 
 Michigan practice — Powers and jurisdiction 
 
 3. Security FOii COSTS 9 
 
 When required — Form of bond for costs. 
 
 CHAPTER III. 
 
 BILLS IN CHANCERY 11 
 
 Section 1. Division of bit.ls 11 
 
 2. Constituent PARTS of AN ORIGINAL BILL 12 
 
 3. Tfb address , 13 
 
 4. The introduction 14 
 
 5. The premises or stating part 15 
 
 Certainty required — Exhibits — The bill must state the 
 whole subject, and not too many subjects — Matters in 
 litigation not divisible — Multifariousness — Scandal and 
 impertinence. 
 
 6. Confederating part 27 
 
 7. Charging part 27 
 
 8. Jurisdictional clause 28 
 
 9. Interrogating pakt 29 
 
 10. Prater FOR relief 31 
 
 11. Prayer FOR process 33 
 
 12. Frame op bill 33 
 
 13. Signing of bill 34 
 
 (V) 
 
ANALYSTS OF CONTENTS. 
 
 14. Swearing to the biI/L 35 
 
 15. Parties to bills 37 
 
 Who should be made parties — How described — Persons 
 imder disability — Interest of parties — Joinder of parties 
 Want of proper parties, misjoinder, etc. 
 
 16. Ancient BILL3 42 
 
 Form of . 
 
 CHAPTER IV. 
 
 FORMS OF THE CONSTITUENT PARTS OF AN ORIGINAL BILL 45 
 
 Section 1. TiiE address 45 
 
 In the circuit court of the United States — In Michigan 
 
 2. The introduction 45 
 
 By a complainant, under no disabilities — By an unmar- 
 ried woman — By a manied woman against her husband 
 or other person — By husband and wife — By an infant 
 by his father or next friend — Bj an infant by his guar- 
 dian — By a corporation — In the circuit court of the 
 United States. 
 
 3. The premises or stating part 46 
 
 4. The confederating part 47 
 
 5. Charging part 47 
 
 6. Jurisdictional clause 47 
 
 7. Interrogating part 48 
 
 8. Prater for relief 48 
 
 9. Prater for process 48 
 
 For subpoena — For injunction. 
 
 Oath to bill or petition 49 
 
 CHAPTER V. 
 
 PROCESS FOR APPEARANCE 50 
 
 Section 1. Subpoena 50 
 
 Form of. 
 
 2. Service and return of subpoena 52 
 
 Return — Form of officer's return — Form of affidavit of 
 servicei 
 
 8. Notice by publication 55 
 
 Essentials of the affidavit — The order of appearance — 
 Publication and proof of same — Forms of affidavit for 
 order of appearance, non-residence of defendant, stat- • 
 ms place of residence — Affidavit for publication; non- 
 residence of defendant, place of residence not known 
 — Same, defendant can not be found — Same, defendant 
 is concealed within the State — ^Form of order for appear- 
 ance, or publication — Short form of order of publica- 
 
ANALYSIS OP CONTENTS. 
 
 tion. 
 
 4. SeEVICB by COPT OF OKDER OP APPEARANCE 61 
 
 Form of proof of. 
 
 5. Summons 62 
 
 6. Attachment 62 
 
 How obtained — Form of affidavit for — Form of order for. 
 
 7. Attachment with phocijAmation 65 
 
 8. Commission of bebellion 66 
 
 9. Sbrgeant-at-arms 66 
 
 10. Sequestration 67 
 
 CHAPTER VI. 
 
 TAKING BILLS AS CONFESSED 68 
 
 Section 1. Default 68 
 
 Form of order entering appearance of defendant, and for 
 copy of bill and notice — Form of affidavit of non-ap- 
 pearance — Form of affidavit on default — Form of affi- 
 davit of irregularity — Form of order pro confesso, and 
 of reference — Foim of commissioner's report, ^ro con- 
 fesso divorce — Effect of a default. 
 1 2. Right of defendant after default , 78 
 
 3. Setting aside default 74 
 
 Form of affidavit in support of motion to set aside default 
 
 4. Setting aside decree when defendant is not person- 
 
 ally NOTIFIED 75 
 
 Form of petition for. 
 
 CHAPTER VII. 
 
 THE DEFENSE TO A SUIT 79 
 
 Section 1. Proceedings by defendant previous to putting in his 
 
 ANSWER , 79 
 
 Exceptions to bill for scandal or impertinence — Form of 
 exceptions— Motion for production of papers— Motion 
 for security for cdsts. 
 
 2. The DIFFERENT SORTS op DEFENSES , 83 
 
 3. Demurrer to a bill 84 
 
 Its nature and uses— When it will lie— General demurrer 
 — Spetial demurrer— Several causes of— Separate de- 
 murrers—Speaking demurrers— Demurrer, ore terms — 
 Demurrer coupled with an answer— Demurrer to plea 
 or answer— When to be filed— Hearing of —Effect of 
 sustaining— Effect of overruling— Form of a general de- 
 murrer—Short form of— Demurrer or plea to bill in the 
 U. S. court— Form of certificate of counsel to— Form of 
 
ANALYSIS OF CONTENTS. 
 
 affidavit of defendant to — Form of demurrer for want 
 . of equity — Same for multifariousness — Same for want 
 of parties — Same for want of privity — Same to a bill of 
 discovery, where the defendant could be examined as a 
 witness — Same where the complainant has no interest 
 in the subject — Same to a part of the bill — Same to a 
 part of bill, with an answer to the residue. 
 
 4. Plea to a bill 99 
 
 Nature of — When proper — ^To the jurisdiction of the 
 court — To the person — To the bill — Pleas in bar. 
 
 Frame of — Forms of, to whole bill — Same to a part — 
 Same in abatement to the jurisdiction of the court — ■ 
 Same of coverture of the complainant — Same of in- 
 fancy without a prochiem amy — Same that the de- 
 fendant never was administrator as alleged — Same 
 that complainant is an alien enemy — Same want of 
 proper parti<'s — Same former suit pending — Same 
 statute of limitations — Same of a release, with answer 
 in support thereof — Same of stated account — Same to 
 part, and answer to the residue of bill — Signing of 
 plea — WJi3n plea must be sworn to — When to be filed 
 — Replication to — Amendment of bill after plea — De- 
 murrer to plea not proper — Argument of plea — ^Effect 
 of allowing the plea — Saving the benefit of a plea to 
 the hearing — Allowing plea to stand for answer — Over- 
 ruling plea — When plea must be supported by answer. 
 
 5. Answbk to a bill 119 
 
 Fraud, how alleged — Mode of answermg — AfBrmative 
 relief not allowed on answer — Frame of answer may 
 be joined — Sweai-ing to — Waiver of oath — Effect of 
 sworn answer — When evidence against a co-defendant 
 — Answer of deceased ancestor as evidence — Admis- 
 sions in answer — Answer of a corporation — Answer of 
 infant and insane defendants — Forms of answer — Title 
 of answer by one defendant — Same of joint and sev- 
 eral — Same by one of several — Same to amended bill — 
 Same where exceptions have been taken to a form of 
 answer, and the bill has also been amended — Same to 
 supplemental bill. 
 
 Same to amended answer — Same by infants by their 
 guardian ad litem — Forms of commencement— ^ame 
 introduction by one defendant — Same of several de- 
 fendants — Common forms in framing answers — Same 
 where defendant admits a statement — Of written in- 
 struments — Same whei-e defendant believes a statement 
 may be true, but qualifies his admission of it, not know- 
 ing the same of his own knowledge — Same where de- 
 fendant is entirely ignorant with regard to the state- 
 
ANALYSIS OP CONTENTS. 
 
 ment in the bill — ^Same where one of two defendants, 
 of his own knowledge, knows the statement of the bill 
 to be true, and the other defendant does not know the 
 same, but believes the answer of his co-defendant — 
 Same where one of two defendants denies the allega- 
 tion of the bill, and the other defendant believes such 
 denial to be true — Form of a general frame of an an- 
 swer — Same affidavit to answer — Same short form of 
 answer— Same of infants by their guardian ad litem 
 — Same statement in answer, claiming the benefit of 
 the statute of frauds — Same conclusion of an answer, 
 insisting that the complainant has an adequate remedy 
 at law — Where to be filed — Dismissal of bill — An- 
 swer to amended bill — 'Amendment to answer. 
 
 Disclaimer , .'. 141 
 
 Nature of— Form of— Same of answer and disclaimer. 
 
 OHAPTEE VIII. 
 
 EXCEPTIONS TO ANSWER 145 
 
 Section 1. Natdbb of 145 
 
 2. Exceptions fok insufficiency 145 
 
 In what cases they he — How taken — Form of. 
 
 3. Exceptions fob scandal and impbbtinbncb 148 
 
 What is. 
 
 Rules — Form of — Form of order to expunge scandal and 
 impertinence from answer. 
 
 CHAPTER IX. 
 
 AMENDMENTS TO BILLS 157 
 
 When to be made — Form of petition for leave to amend 
 bill after replication — Form of order for leave to amend 
 bill after a general demm-rer — Form of amendment to 
 bill. 
 
 CHAPTER X. 
 
 REPLICATION 164 
 
 Nature of — Within what time to be filed — Issue made — 
 Effect of filing — Withdrawing — General form of. 
 
 CHAPTER XL 
 
 TESTIMONY 168 
 
 Section 1. Testimony by cikcuit coubt commissioner 168 
 
ANALYSIS OF CONTENTS. 
 
 Form of order to take proofs — Same of notice to take 
 proofs — Same of affidavit for order to close proofs — 
 Same order closing proofs — Same of notice to commis- 
 sioner of order closing proofs — Same of notice to solic- 
 itor of order closing proofs — Same of notice of examin- 
 ation of witnesses — Extension of time — Form of or- 
 der enlarging time to take proofs — Proceedings before 
 the commissioner — Form of proofs taken before com- 
 missioner — Same of certificate of commissioner. 
 
 2. Depositions of non-bbsident witnesses 177 
 
 Form of — Petition to register that commission issue — 
 Same of notice of application for — Same of commis- 
 sion to take testimony. 
 
 Same of instructions to commissioner annexed to com- 
 mission — Same of oath— Same of affirmation — Same 
 of caption. 
 
 3. Testimony in open court 183 
 
 4. Pbdving documents at hearing 186 
 
 5. Stipulation to take testimony 187 
 
 6. Pboduction op books and papbbs 188 
 
 Documents, etc., in hands of third persons. 
 
 7. Special BEPBBENCE TO COMMISSION EB 190 
 
 Form of order of — Same of comm-ssioner's report of tes- 
 ,timony — Same objections to commissioner's report — 
 Same exceptions to master's report. 
 
 CHAPTER XII. 
 
 FEIEGED ISSUES— TRIAL BY JURY 194 
 
 Nature of — Form of order directing an issue of fact to 
 be tried by a jury — Drawir.g up and settling a feigned 
 issue. ' 
 
 CHAPTEE XIII. 
 
 HEARING 198 
 
 Notice of hearing — Form of— Case and abbreviation of 
 pleadings — How calendar to be made up — Cause to 1 e 
 noticed for first day of term — Notice to register— Form 
 of notice — Papers to be famished on hearing — Same 
 on rehearing — On exceptions — Same by whom — Points 
 
 . to be delivered — Submission of causes — Course of pro- 
 ceedings— Hearing case out of its order— Original and 
 cross-bill heard together — Effect of former orders on 
 the hearing- 
 
ANALYSIS OP CONTENTS. 
 
 CHAPTER XIV. 
 
 DECREES AND DECRETAL OEDEES 206 
 
 Section 1. Natuke, tjsks and kind of decbees 206 
 
 Interlocutxjiy decree — Final decree 
 
 2. Forms of decrees 210 
 
 Constituent parts — The caption and title — Form of de- 
 cree or order in circuit court — Same of caption of or- 
 der by commissioner — ^The recitals — Form of recital of 
 a decree or order — ^The ordering part — Declaratory- 
 part — Decree by consent — Nunc pro tunc clause — 
 Form of — Drawing of decree — Common and special 
 orders — General form of an order — Same of a decree. 
 
 CHAPTER XV. 
 
 SUPPLEMENTAL BILL 217 
 
 Section 1. Nature op and when proper 217 
 
 2. When to be piled 219 
 
 3. Parties to 220 
 
 4. Form op ; 221 
 
 Rule 44 — Prayer of — Form of for specific performance, 
 stating that defendant has brought ejectment, pray- 
 ing for injunction, etc. — Same against the assignee of 
 a bankrupt. 
 
 5. Petition fob leave to pile 224 
 
 Form of. 
 
 6. Process, etc 225 
 
 7. Defenses TO 226 
 
 Demurrer — Form of— Plea — Practice upon demurrers 
 and pleas — ^Form of plea to — Answer. 
 
 8. Replication and evidence 229 
 
 Replication — Evidence. 
 
 9. Hearing 230 
 
 Entitling orders — Dismissing bill. 
 
 CHAPTER XVI. 
 
 BILLS IN THE NATURE OF SUPPLEMENTAL BILLS 231 
 
 Section 1. Original bills in the nature op 231 
 
 When proper — Form of— Proceedings upon. 
 
 2. Bills to carry decrees into execution 236 
 
 Nature of— Form of. 
 
ANALYSIS OP CONTENTS. 
 
 CHAPTEE XVII. 
 
 BILL OF REVIVOR 239 
 
 Seetion 1. Nature of. 239 
 
 2. WhBN VROPEK 240 
 
 Before decree — After decree. 
 
 3. Against WHOM TO BE FILED ^ 243 
 
 Before decree — ^Where filed after decree. 
 
 4 Frame of bill 244 
 
 Muat pursue original bill— Form of before decree — Same 
 
 after decree, against the surriving executor of one of 
 
 tbe defendants, since deceased. 
 
 5. Defenses to 247 
 
 Demurrer — Plea — Answer. 
 
 6. Replication 250 
 
 7. Order to revive 251 
 
 Form of. 
 
 8. Hearing , 252 
 
 9. Effect of revivor 253 
 
 CHAPTER XYIII. 
 
 BILLS IN THE NATURE OF BILLS OF REVIVOR 255 
 
 Section 1. Nature and uses 255 
 
 2. Parties to ■ 257 
 
 3. Frame of bill.... 257 
 
 Form of. 
 
 4. Defenses to 260 
 
 CHAPTER XIS. 
 
 BILLS OF REVIVOR AND SUPPLEMENT 261 
 
 Nature of, and when proper — Practice upon — Form of. 
 
 CHAPTEE XX. 
 
 BILLS OF REVIEW 264 
 
 Section 1. Nature of, and when peopeh 264 
 
 Where it lies — For an error of law — Newly discovered 
 evidence. 
 
 2. Parties to 270 
 
 3. Leave to file , 271 
 
 Performa-ce of decree— Petition for— Form of petition— 
 
ANALYSIS OP CONTENTS. 
 
 For leave to file a bill of review for errors of law- 
 Same upon newly discovered evidence. 
 
 4. Within WHAT TIME TO BE BBO0GHT 275 
 
 Form of order to file a bill of review. 
 
 5. Fkame of bill 275 
 
 Form of upon en-ors of law — Same upon newly discov- 
 ered evidence — Same, affidavit to bill. 
 
 6. Defenses to 278 
 
 Plea — Demurrer — Answer — Form of plea — Same of de- 
 murrer. 
 
 CHAPTER XXL 
 
 BILLS OF DISCOVEET 284 
 
 Section 1. Nature of, and when proper 2'4 
 
 2. Frame OP, etc 286 
 
 Form of. 
 
 3. Defenses to 289 
 
 Demurrer — Form of, where defendant has no interest — 
 Same for want of privity — Plea — Form of, that action 
 at law having jurisdiction is pending — Same that de- 
 fendant would betray confidence as solicitor- -Answer 
 — Practice upon generally. 
 
 CHAPTER XXir. 
 
 BILLS OF INTERPLEADER 296 
 
 Section 1. Nature of, and when proper 296 
 
 2. Frame of bill ■. 300 
 
 Affidavit of non-coUusion — Form of bill — Same, a,fiidavit 
 annexed to. 
 
 3. Defenses to 304 
 
 Demurrer — ^Form of, for want of affidavit of non-collusion 
 — Same for not showing any claim of right in defend- 
 ant — Same for not showing any right in complainant 
 to compel defendants to interplea,-d — Answer — Injunc- 
 tion, etc — Form of orderfor injunction on bill of inter- 
 pleader — Taking bill as confessed^Evidence. 
 5. Hearing and decree -. 308 
 
 Costs — Form of interlocutory decree directing a reference. 
 
 CHAPTER XXIII. 
 
 BILLS AND PETITIONS TO PERPETUATE TESTIMONY. 311 
 
 Section 1. Nature of proceeding.. 311 
 
ANALYSIS OF CONTENTS. 
 
 2. Pbame op bill 311 
 
 Form of — Same of affidayit to be attached. 
 
 3. Defenses and proceedings 316 
 
 Demurrer — Answer. 
 
 4. Proceedings under the statute 317 
 
 Notice of taking testimony — How served — ^Notice waived 
 — Oath to witness — How examined — Objections — How 
 certified to — ^To whom delivered. 
 
 CHAPTER XXIY. 
 
 CROSS-BILLS 322 
 
 Section 1. Nature of a cross-bill 322 
 
 2. Frame of bill 325 
 
 Form of a cross-bill to a foreclosure suit — Same in the 
 nature of a plea^wis darrien continuance. 
 
 3. When to be piled 330 
 
 Leave to file. 
 
 4. Process upon ' 331 
 
 5. Defenses TO 332 
 
 Demurrer — Pleas — Answer. 
 
 6. Proceedings upon 334 
 
 CHAPTER XXV. 
 
 BILLS FOR SPECIFIC PERFORMANCE 336 
 
 Section 1. Nature of, and when proper 336 
 
 Lost instrument — Of an award — Parol contracts. 
 
 2. Parties to 345 
 
 3. Fhameofbill 346 
 
 Tender. — Form of bill upon a written contract, by vendee 
 V. vendor — Same by vendor -o. vendee — Same on a 
 bond for a deed, vendee v. legal representatives of 
 vendor — Same, by lessee v. lessor of a written agree- 
 ment for a lease of a house. 
 
 4. Decree 353 
 
 Declaration of right to specific performance — Reference 
 of title — Payment of purchase money and execution of 
 conveyance — Delivery of deeds, etc. — Form of decretal 
 order for a reference as to the title of a vendor, etc — 
 Same of an interlocutory decree for an account — Same 
 of a final decree for a specific performance of an 
 agreement. 
 
ANALYSIS OF CONTENTS. 
 
 CHAPTER XXVI. 
 
 BILLS RELATING TO PARTNERSHIP MATTERS 359 
 
 Section 1. Where a dissolution will bb decreed 359 
 
 2. Account between partners 361 
 
 8. Appointment op a receiver 362 
 
 When appointed — Form of a bill for a dissolution, and 
 for an injunction — Same of affidavit to bill — Same of 
 bill for an account of partnership dealings, and an in- 
 junction, etc. 
 
 4. Forms op DECREES AND ORDERS 369 
 
 Form of order appointing a receiver in a suit between 
 partners — Same, decree for an account of partnership 
 dealings — Same of a final decree for a dissolution, 
 and for an account. 
 
 CHAPTER XXVII. 
 
 BILLS TO REDEEM 371 
 
 Section 1. Nature op 371 
 
 Deed absolute on its face, when deemed as a mortgage. 
 
 2. Who may redeem 373 
 
 3. Within what time to be piled 374 
 
 4. Parties to 376 
 
 Complainants — Defendants.. 
 
 5. Terms of redemption 379 
 
 6. Frame op bill ' 381 
 
 Form of bill by heirs-at-law of mortgagor o. mortgagee 
 to redeem — Same from a deed absolute on its face, but 
 which was intended as a mortgage — Same to redeem 
 goods which were deposited as a security for money 
 lent— Same to set aside a decree of foreclosure, etc., 
 by heirs of mortgagor v. mortgagee. 
 
 7. Decree ggg 
 
 Form of, for redemption. 
 
 CHAPTER XXYIII. 
 
 BILLS TO FORECLOSE MORTGAGES 393 
 
 Section 1. General nature op mo 
 
 2. When PROPER _ 30, 
 
 8. Parties qqo 
 
 Complainants — Defendants. 
 
 4 Frame OP BILL 4^0 
 
 Form of. 
 
ANALYSIS OF CONTENTS. 
 
 5. Practice on pobeclosdrb biuls "^^^ 
 
 Lis pendertS'^Form of notice lis pendens in foreclosure 
 suit— Reference to compute amount due — Form of order 
 pro confes'so, and refeience, paj'ments all due — Affida- 
 vit of regularity — Proceedings be'"' 'C commissioners- 
 Healing. 
 
 6. Defenses to 414 
 
 7. DiECREE AND 8ALB......7 416 
 
 Personal decrees-Form of decree of foreclosure and sale, 
 pro confesso — Sale of mortgaged premises — Deed on 
 sale — Adjournment of sale — Form of notice of chan- 
 cery sale — Sale by parcels — Enrollment of decrees, etc. 
 Form of certificate of enrollment — Report and confir- 
 mation of sale — Form of commissioners report of sale 
 — Same of order confirming sale — Same of affidavit 
 of posting notices — Same of commissioner's deed — Re- 
 opening sale, and re-sale — Writ of assistance — How- 
 same is obtained. 
 
 8. Surplus and dbpicibncy 434 
 
 Proceeds of sale, when brought into court — How disposed 
 of — Execution for deficiency — How to obtain execution 
 for deficiency — Answer to application. 
 
 9. Installments due, proceedings on 437 
 
 When bill dismissed — When proceedings to be stayed 
 — Reference in certain cases — Default subsequent to 
 decree — Premises, when entire sold — Application of 
 proceeds, when all sold. 
 
 CHAPTER XXIX. 
 
 CREDITOR'S BILL 440 
 
 -Section 1. When it may be piled 440 
 
 When proper— Justice's judgment— In U. S. court. 
 
 2. What mat be reached by 444 
 
 3. Parties to the bill 446 
 
 Complainants — Defendants . 
 
 4. Priority and lien op bills. . , 449 
 
 5. Frame op bill 461 
 
 Bill in aid of execution— What bill should state— Prayer 
 — Verification — Amendment of bills — Swearing to 
 amendments — Proceedings ex parte', defendant in de- 
 fault — Consent to take bill confessed — Form of con- 
 sent — Order on account to take bill as confessed-^Cost 
 of examination— Other witnesses — When Rule 105 to 
 be observed. 
 
 6. Receivers in creditor's suits 456 
 
 Their powers — Receivers for several suits — Security for 
 
ANALYSIS OP CONTENTS. 
 
 — How to pay over money — Receivers of subsequent 
 suits ^Receiver's accounts — Effect of injunclionu — 
 Form of creditor's bill — Same of bill in aid of an ex- 
 ecution to remove a fraudulent conveyance — Same 
 against executrix of deceased debtor — Same of an or- 
 der of reference to master, to examine defendant as a 
 witness — Same that complainant's debt be paid out 
 of funds in the hands of the receiver — Same, setting 
 aside a fraudulent conveyance in aid of an execution. 
 
 CHAPTER XXX. 
 
 iPARTITION SUITS 475 
 
 Section 1. Nature of, and how instituted 475 
 
 2. Parties to 478 
 
 Complainants — Defendants — Unknown defendants — 
 Guardian for minors — Bond required. 
 
 3. BrLi/, etc 482 
 
 What to set forth — Answer — Feigned issue — Amendment 
 of bill — Form of bill for partition between two heirs, 
 subject to widow's dower — Same-^ame, and dower. 
 
 4. Repei^encb and pboceedings , 489 
 
 Reference on bill confessed— Same to ascertain situation 
 of premises — Infant defendants. 
 
 5. Pkoceedings to decree 491 
 
 Appointuient of commissioners— Vacancies— Oath to 
 commissioners— Partition, how madfi-^Report of com- 
 missioners-Fees— Report set aside— Confirmation- 
 Persons not affected — PartitioQ among heirs — Parti- 
 tion btj sale — When court to order sale— Order direct- 
 ing terms of creditr-Separate securities— To whom 
 delivered— Certain moneys to be brought into couit— 
 Application for moneys-^Proceedings thereon— Distri- 
 bution— Discharge of incunjbrainces— Sale of dower or 
 life estate— How proceeds to be invested determined- 
 Sale, and how conducted— Report of sale— Convey- 
 ances— Costs— Distribution of proceeds^-Sharesof in- 
 fants— Of unknown and absent owners— Of tenants in 
 dower or for Ufe— Security to refund— Security, how 
 taken— Money applied and invested— Suit on securities 
 —Partition of lands of infants and lunatics— Oi in- 
 fants — Of lunatics. 
 
 6. Hearing and decree r^- 
 
 Hearing^-Dec^ee-Costs— Receiver— Appeal— Decisions 
 —Form of decree for partition— Same of report of 
 commissioners making partitions, etc.— Form of oath 
 of Qommissioners- Same of report of same that prem- 
 
ANALYSIS OF CONTENTS. 
 
 ises are not susceptible of division — Form of decree 
 confirming report of commissioners — Same for sale of 
 premises— Same, confirming sale. 
 
 CHAPTEE XXXI. 
 
 BILL TO PROBATE FOEEIGN WILL 514 
 
 Section 1. When allowbd 514 
 
 2. Parties 514 
 
 3. The bili, and answbb 515 
 
 Form of bill — Defense. 
 
 4. Commission to take testimony 518 
 
 6. Decree and its effect 519 
 
 Effect of probate — Transcript to be filed in Probate 
 Court — Appeal. 
 
 CHAPTER XXXII. 
 
 BILLS FOR DIVORCE 520 
 
 Section 1. Nature of 520 
 
 2. Causes for divorce 522 
 
 3. Jurisdiction of, and vthebb commenced 523 
 
 4. Parties to 524 
 
 5. Frame of bill 524 
 
 6. Natural impotence at time of marriage 525 
 
 Form of bill on that ground — Affidavit to. 
 
 7. Adultery 530 
 
 Circumstantial evidence — Frame of bill charging adul- 
 tery — Foi;m by husband v. wife — Same by wife v. hus- 
 band, praying for alimony and custody of children — 
 Forms of, affidavit to. 
 
 8. Conviction of crime 538 
 
 Form of bill for. 
 
 9. Desertion for two years 539 
 
 Form of bill for. 
 
 10. Habitual drunkenness 542 
 
 Form of bill for, praying for alimony, etc. 
 
 11. Extreme cruelty 545 
 
 Form of bill for — Same, praying for an injunction, etc. 
 
 12. Failure to support 551 
 
 Form of bill for — Affidavit to same. 
 
 13. Divorces granted in another state 555 
 
 14. Suit to annul marriage 555 
 
 15. Suit to affirm marriage 556 
 
 16. Void MARRIAGES 556 
 
 17. Reference to TAKE PROOF 558 
 
ANALYSIS OF CONTENTS. 
 
 18. Injunctions in 558 
 
 19. Dbfbnsbs 560 
 
 Condonation — Other defenses — Recrimination — Cross- 
 biUs. 
 
 20. Heaiung and dechbb 5C3 
 
 Forming and issue — Form of order directing an issue of 
 fact to be tried by a Jury — Proofs — Decree — ^Wife en- 
 titled to dower — Children, legitimacy — Children, cus- 
 tody of — Restoration of property to wife — Costs — Co- 
 habitation after divorce — Form of decree for divorce 
 pro confesso, with castody of children — Same, decree 
 for divorce upon pleadings and proofs — -Same on the 
 ground of extreme cruelty, upon verdict of a jury. 
 
 21. Alimony AND BXPKNSBS , „... 573 
 
 How obtained — Form of petition for pendente lite — 
 Same, affidavit in support of— Same, notice of petition 
 for — Hearing — Question of guilt not considered — The 
 amount of allowance — How order is enforced — Form 
 of order for temporary alimony — Same of demand for 
 — Proceedings to compel payment of— Form of order 
 to show cause why attachment should not issue — Same 
 of attachment for contempt — Same, return of sheriff of 
 attachment — Same of interrogatories in proceeding for 
 contempt — Same of answers to interrogatories — Same, 
 order of reference as to alimony pendente lite, and ex- 
 penses — Same of report of commissioner as to allow- 
 ance of alimony — Same of order confirming commis- 
 sioner's report, etc. — Short form of decree for alimony, 
 etc , pendente lite — Permanent alimony — Enforce- 
 ment — Form of decree for permanent alimony. 
 
 CHAPTEE XXXIII. 
 
 SEPARATE MAINTENANCE ggj 
 
 Section 1. When granted , 5gj 
 
 2. Proceedings to obtain 593 
 
 Where commenced— The bill— Injunction— Form of bill 
 — Affidavit to. 
 
 3. Defenses to gg^ 
 
 4. Practice in, and decrees 593 
 
 Reference to commissioner— Form of report of— Amount 
 of allowance — Modification of allowance — ^Form of de- 
 cree for separate maintenance. 
 
ANALYSIS OP CONTENTS. 
 
 CHAPTER XXXIY. 
 
 SUITS FOR MAINTENANCE 601 
 
 Section 1. When pkopbr 601 
 
 2. Practice and PROCEEDiNas 601 
 
 The petition — Form of. 
 
 3. HeARINO and DECREE . , 603 
 
 Custody, of children — Assignment of property to wife — 
 Support of vife and children — Court may change al- 
 lowance. 
 
 CHAPTER XXXV. 
 
 BILL TO QUIET TITLE 605 
 
 Section 1. When proper, and natdrb of 605 
 
 2. Forms of bill 610 
 
 Form of bill to quiet titlfe and to cancel deed. 
 
 8. Form of decree 611 
 
 CHAPTER XXXVI. 
 
 NE EXEAT , 613 
 
 Section 1. Nature ov, atstd when proper 613 
 
 2. Bill FOR ' ,., 614 
 
 Form of prayer of bill for. 
 
 3, How OBTAINED, ETC 615 
 
 Form of aUawance by- circuit judge — Same by injunction 
 master. 
 
 CHAPTER XXXVII. 
 
 BILLS RELATING TO TRUSTS 6i7 
 
 Section 1. Nature of, etc 617 
 
 2. Form of bills 619 
 
 Form of, to remove trustee, for injunction and receiver 
 — Same for appointment of a new trustee under mar- 
 riage settlement. 
 
 CHAPTER XXXVIII. 
 
 BILLS TO RESTRAIN WASTE 623 
 
 Section 1. Nature of, and when proper 
 
 2. Form of bill 625 
 
 By landlord v. tenant to restrain waste, injunction, etc. 
 
ANALYSIS OP CONTENTS. 
 
 CHAPTER XXXIX. 
 
 PROCEEDINGS TO ENFORCE MECHANIC'S LIEN 628 
 
 Section i. Nature op ^^8 
 
 2. Whkrb a lien is givbh- 629 
 
 Notice and service — Form of notice of claim of lien — 
 Effect of filing and service— Statements to be ren- 
 dered—Affidavits to be filed— Lien considered as a 
 mortgage— Form of affidavit to be attached to notice 
 at time of service-^ame, affidavit of service of notice 
 — Same of amount due for which lieu is claimed — 
 Same that affidavit of amount due on lien is a true 
 copy — Discharge of lien — Limitation of. 
 
 3. Bills and petitions 639 
 
 Parties— Security for costs— Form of indorsement for 
 costs — ^Amendments to bills — Form of bill for mechan- 
 ic's hen on written contract — Same on implied con- 
 tract — Same on Terbal contract — Notice lis pendens. 
 
 4. Answer 649 
 
 Form of by owner — Same settingup a discharge of lien — 
 Same of defendant setting up lien for materials, etc. 
 
 5. Cross-bill 654 
 
 Form of by a defendant to a bill or petition for a mechan- 
 ic's lien to enforce a lien of defendant. 
 
 6. Hearing, decree and sale 656 
 
 Decree — Form of allowing lien, and for a sale of the 
 premises — Same where there are other proceedings 
 pending unadjusted — ^SAme where there are several 
 liens and a mortgage to be adjusted — Costs — Sale — 
 Redemption — Distribution of proceeds — Proceeds paid 
 into court — Surplus — ^Discharge — Appeal. 
 
 CHAPTER XL. 
 
 INFANTS. 
 Section 1. 
 
 Suit tor 
 
 Next friend^HOw appointed — Forms of petition and 
 affidavit for appointment of next friend — Same of con- 
 sent to become next friend, etc. — Same, order appoint- 
 ing. 
 
 Suits against 
 
 Form of petition by infant for appointment of guardian 
 ad litem — Affidavit of infant's signature — Same, con- 
 sent of guardian — Same, order appointing — Same, peti- 
 tion of complainant for the appointment of a guardian 
 
 664 
 
ANALYSIS OF CONTENTS. 
 
 ad litem — Same, order for — Same, making last order 
 absolute — Same, petition by a relative of an infant for 
 appointment of guardian ad litem. 
 3. Sale op estate of infants and incompetent persons. 673 
 Proceedings — Proceeds of sale, how applied — Dower, 
 how satisfied — Guardian's final report — General guard- 
 ians, how appointed. 
 
 CHAPTER XLL 
 
 PROCEEDINGS AGAINST CORPORATIONS 678 
 
 Section 1. By a single stockholdek 678 
 
 2. Jurisdiction ovbb officers of corporation 679 
 
 Injunctions, when allowed— Sequestration of property — 
 Surrender of corporate rights. 
 
 3. Proceedings against insolvent corporations 682 
 
 Who may apply for injunction — Appointment of receiver 
 — Making stockholders parties — Making directors par- 
 ties — BUI against stockholders — Discovery by corpora- 
 tion — By officers — Staying proceedings at law — certain 
 corporations excepted. 
 
 4. Voluntary dissolution of corporations 687 
 
 Who may apply for — Contents of application — Affidavit 
 — Order to show cause — Publication of notice — Pro- 
 ceedings before commissioner — When corporation to be 
 dissolved — Receivers — Same to give notice of appoint- 
 ment — Certain sales void — Debtors to account to receiv- 
 er — Referring controversies — Calling meetings — Sub- 
 sisting contracts — Receiver's commission — Receiver to 
 retain certain moneys — Order of payment of debts — 
 Second dividend— Proceedings on debts not exhibited 
 — Distribution to stockholders — Receiver under control 
 of court — Receiver's accounts — Duty of commissioner 
 on reference — Further accounts by n^ceiver^Corpora- 
 tions excepted — Suits not to abate — Suits discontinued 
 — Appeal. 
 
 CEAPTER XLII. 
 
 INJUNCTIONS 697 
 
 Section 1. Nature of 697 
 
 2. When and how granted 697 
 
 By whom — Form of indorsement by circuit judge allow- 
 ing writ — Same by commissioner. 
 
 3. Staying proceedings at law 703 
 
 Bond to be given — After verdict—After judgment — In 
 
ANALYSIS OF CONTENTS. 
 
 ejectment— Fraud— Ascertaining sufficiency of sureties 
 —Filing of bond— Measure of damages— Enjoining 
 taxes — When judge or commissioner disciualified— Dis- 
 solution. 
 
 CHAPTER XLIII. 
 
 CONTEMPTS 706 
 
 Section 1. Nature of 706 
 
 2. Proceedings by attachment 708 
 
 3. Proceedings by order to show cause 709 
 
 4. Punishment and discharge 710 
 
 Order of conviction — Process of commitment — Sequestra- 
 tion — ^Effect of contempt — Appeal. 
 
 CHAPTEE XLIY. 
 
 MOTIONS, ORDERS AND AFFIDAVITS 714 
 
 Section 1. Motions 714 
 
 Notice — ^Form of special motion — ^Motion or petition for 
 rehearing — ^To dismiss bill for want of prosecution — 
 Rules relative to serving papers. 
 
 2. Obders 718 
 
 3. Affidavits 718 
 
 Form of jurat to — Same when sworn to by solicitor. 
 
 CHAPTER XLV. 
 
 TRANSFER OF CAUSES 721 
 
 Application for — Hearing of same — Where transferred — 
 Filing order— Papers to be transferred— Fees of clerk. 
 
 CHAPTER XLYI. 
 
 CIRCUIT COURT COMMISSIONERS 724 
 
 Section 1. Powers OF 724 
 
 Commissioners to act as master. 
 
 2. When another may act 72(; 
 
 3. Proceedings before 72(j 
 
 Taking accounts. 
 
 4. Appeal from order op 727 
 
ANALYSIS OF CONTENTS. 
 
 CHAPTER XLYII. 
 
 STATUTORY MODE OF REVIVOR 729 
 
 Section 1. AVhenpropeh 72* 
 
 2. Pkocbedings 730 
 
 CHAPTER XLYIII. 
 
 COSTS 733 
 
 Section 1. When costs are awarded 733 
 
 2. Taxation op. i 735 
 
 Who may tax — Notice of— The bill of— Affidavits — 
 jt Duty of taxing officer — Re- taxation — Form of bill of— 
 
 Same, notice of — Same, affidavits to. 
 
 I 
 
 CHAPTER XLIX. 
 
 PRACTICE IN THE SUPREME COURT. 741 
 
 Section 1. Jurisdiction of Supreme Court 741 
 
 Terms of court-^What the court reviews. 
 
 2. Appeals WHEN allowed 746 
 
 Orders not final — Final. 
 
 3. How APPEALS ASK TAKEN , 750 
 
 Claiming appeal — Form of— Bond on appeal — Form of — 
 Approval of — Form of notice of application for approv- 
 al of bond— Notie* of appeal — Form of— Same of affi- 
 davit of service of notice of appeal — Register's return 
 — Extending time for return — What the return in- 
 cludes — Entry of appearance — Settling case heard in 
 open court. 
 
 4. Motion 760 
 
 Motion days — Agreement between counsel — Motion to 
 dismiss appeal. 
 
 6. Hearing and decree 764 
 
 Printing record— Notice of hearing— Form of— Same of 
 countermand of notice — Court calendar — ^Briefs to be 
 furnished — The arguments — Decree — Amendments — 
 Rehearing — Re-argument — Remitting record — Final 
 process — Vexatious appeal 
 
 6. Costs 771 
 
 Taxation — Re-taxation. 
 
ANALYSIS OF CONTENTS. xx* 
 
 CHAPTER L. 
 
 PROCEEDINGS TO BAR DOWER OF IN«ANB 775 
 
 Section 1. When proper 775 
 
 2. Petition for 775 
 
 What petition must state. 
 
 3. Proceedings 776 
 
 Appearance and answer of wife — Taking proofs — Action 
 on report — Sale by guardian — Disposition of funds. 
 
 CHAPTER LI. 
 
 MISCELLANEOUS FORMS 779 
 
 Order when defendant appearsi or is brought into court 
 by attachment and admits his contempt, that he put in 
 
 his answer within a specified time 779 
 
 Order for commitment of defendant for disobeying order 
 
 to put in his answer 779 
 
 Order in case of contempt for not answering — Where de- 
 fendant denies his contempt— Directing the filing of 
 
 interrogatories, etc , 780 
 
 Order convicting defendant of a contempt after his ex- 
 amination upon interrogatories 781 
 
 Order to refer second or third answer on the old excep- 
 tions 782 
 
 Order for sheriff acting as sergeant-at-arms 782 
 
 Order for sequestration ^ 1 783 
 
 Order of reference when defendant does not submit to 
 
 answer exceptions 784 
 
 Order for farther answer after report of commissioner. . . 784 
 Order for an attachment on third answer being held in- 
 
 suflicient ; 784 
 
 Order for examination of defendant on interrogatories, 
 
 etc., on third answer being held insufficient 785 
 
 Order for leave to amend bill after a plea to part is al- 
 lowed 785 
 
 Order of reference to the commissioners 785 
 
 Order of reference of a plea of former suit pending 786 
 
 Order directing plea to stand for an answer 786 
 
 Order allowing the complainant to dismiss his bill 786 
 
 Order to pay money into court 787 
 
 Pinal decree dismissing bill at the hearing 787 
 
 Order for cause to stand over to add new parties 787 
 
 Order for cause to stand over to supply proof 787 
 
 Interrogatories for the examination of a party in con- 
 tempt for not" nswering in pursuance of No. 293, ante. 788 
 
xxvi ANALYSIS OF CONTENTS. 
 
 Answer to interrogatories in the last form 788 
 
 Commissioner's report upon exception to answer for in- 
 sufficiency. ; 789 
 
 Further answer after exceptions and amendment 789 
 
 Master's report as to sufficiency of defendant's examina- 
 tion 790 
 
 Exceptions to master's report on exceptions to answer. . 790 
 Agreement to submit the cause on written argument. . . 790 
 
 Abstract of pleadings, etc 791 
 
 Brief and points on hearing 792 
 
 Notice of motion on cross-bill to stay proceedings in 
 
 original suit 792 
 
 Certificate of counsel when stay of proceedings is desired 
 
 on filing cross-bill 793 
 
 Order staying proceedings in original suit 793 
 
 Order that original and cross-bill be heard together. . . , 794 
 
putebbaugh^s 
 Pleading and Practice. 
 
 (POWERS' MICHIGAN EDITION,) 
 
 CHAPTER I. 
 
 GENEEA.I, PEINCIPLES OF EQUITY PLEADING. 
 
 As has been said in regard to pleading at law, the impor- 
 tant object to be attained in equity pleading is to bring the 
 snbject-matter of contention in a suit to_an issue — to a point 
 where a matter is affirmed on one side and denied on the 
 other — to render the facts in each party's case plain and intel- 
 ligible and to refer the points at issue to the court, with all 
 possible simplicity, for its decision. It is the statement, in 
 legal form, of the facts which go to make up the charge and 
 defense of parties in litigation; and its substantial rules are 
 founded in the soundest and closest logic. Precision and 
 brevity, certainty and simplicity, are to be kept constantly in 
 view in framing pleadings. All superfluous verbiage and use- 
 less repetitions should be carefully avoided. The mode of 
 statement must be such as to make the pleadings intelligible 
 to the parties and the court, without recun'ing to possible facts 
 which do not appear, and with such a degree of certainty 
 that nothing can, from that pleading, be presumed to the 
 contrary. («) 
 
 (a)'Welf. Eq. PI. 3; Mont. Digest, 10, and notes, Z. S. and D.: Co. 
 litt. 303. 
 
 (3) 
 
GENERAL PRINCIPLES. 
 
 General Principles of Pleading. 
 
 The pleadings in a suit in equity are commenced on the 
 part of the comjjlainant by a Sill or Information. The de- 
 fense consists either of a DemiJ/rrer, which is a defense by law 
 upon an admission of the facts charged in the bill, or a Plea, 
 which is defined by Lord Eedesdaie to be " a special answer, 
 showing or relying upon one or more things as a cause why 
 the suit should be either dismissed, delayed or barred; " (5) 
 or- an answer to the charges contained in the bill or informa- 
 thm; or the defendant may demur to one part of the bill, 
 plead to another, and answer to another, if the nature of his 
 case requires it. To a demurrer the complainant may join as 
 in proceedings at law; and to a plea or answer, reply, which 
 is termed a Replication. These various pleadings and their 
 respective offices will be considered in subsequent chapters. 
 
 « 
 
 (6) Mitf. Ch.Pl. 177; see Coop. Eq. PI. 223: Beame's PI. Eq. 1. 
 
COMMENCEMENT OP SUIT. 
 
 How Commenced. 
 
 CHAPTEK IL 
 
 COMMENCEMENT OF A SUIT IN CHANCEET. 
 
 Section 1. How Commenced. 
 
 2. WfiEKE Commenced. 
 
 3. SECaRITY FOR COSTS. 
 
 SECTION 1. 
 
 HOW COMMENCED. 
 
 By Mil. — A suit in chancery is commenced bj filing a bill 
 or petition with the clerk of the proper court, who is called in 
 chancery, the register. This bill is in the nature of a peti- 
 tion, addressed to the court or chancellor, and contains a 
 statement of the facts out of which the complainant's claim 
 arises, and prays the relief to which he considers himself en- 
 titled, {a) 
 
 The filing of the bill is the commencement of the suit, and 
 any service had therein on process issued, or by publication 
 of notice, made prior thereto, is a nullity. (J) 
 
 Bpt where a party appears and answers, all objections to 
 the irregularity of the proceedings to bring him into court, 
 are waived, (c) 
 
 By Information. — If the suit is instituted on behalf of the 
 government, or people, or those who partake of the preroga- 
 tive of the same, such as idiots and lunatics, or whose rights 
 are under its particular protection, such as objects of public 
 charity, etc., the matter of complaint is presented to the court 
 
 (a)Comp. L. 1871, § 5081; Story's Eq. PI. §7; Barton's Suit in Eq. 39; 
 Bodgen v. Guttery, 58 111. 481. 
 
 {b)Hodgen v. Guttery, 58 HI. 431; Peltier v. Peltier, Han-ington's 
 Chan. 19. 
 (c) Stone V. Welling, 14 Mich. 514. 
 
COMMENCEMENT OF SUIT. 
 
 Where Commenced. 
 
 by way of information, and not by way of bill or petition; (a) 
 by the proper officers of tiie crown, government, or peo- 
 ple, as by the attorney-general or prosecuting attorney. 
 When the suit immediately concerns the rights of the crown, 
 government or people alone, the officers proceed purely by 
 way of information. (5) "When the suit does not immediately 
 concern the rights of the government or people, it is brought 
 on the relation of some person, whose interests are affected) 
 whose name is inserted in ihe information, and is termed. the 
 relator, and he is answerable for costs. 
 
 The rules of practice ilicidental to bills in chancery and 
 information, differ so slightly from each other, that whatever 
 is said in this work with respect to bills, may be considered, 
 in the main, as applicable to informations, (c) The space 
 allotted will not admit of a special reference to informations. 
 
 SECTION II. 
 
 WHEEE COMMENCED. 
 
 Michigan /'^ac^2de.'---Thestatute provides that, " the several 
 circuit courts of this State shall be courts of chancery within 
 and for their respective counties, the powers of which shall 
 be exercised by the circuit judges thereof; and the name and 
 style of such courts sitting in chancery shall be ' The circuit 
 court for the county of-^-^ — ■> in chancery.' " {d) 
 
 Powers and J'urisdicti'On.^-^The circuit courts in chancery 
 have powers and jurisdiction co-extensive with that possessed 
 by the court of chancery of England, witjn the exceptions, 
 additions and limitations created and imposed by the constitu- 
 tion and laws of Michigan, {e) 
 
 {a) Story's Eq, PL § 7; Coop. Eq. PL 101-107; Welf. Eq. PL 58; 1 Dan. 
 Ch. Pr. 1; Lord Red. 7. 
 
 (6) Coop. Eq. PL 101, 102; Welf. Eq. PL 69; Story's Eq. PI. § 7. 
 
 (c)Stoty's Eq. PL § 8; 1 Dan. Ch. Pr. 2. . , , 
 
 (d)C. L. 1871, (§5038). 
 
 (e)C. L. 1871, (§ 5057) Amended Laws 1881, p. 255; Byan v. Brairn, 
 18 Mich. 196; Osborn v. Bank U. S., 9 Wheat. 738. Wallace v. Hanis, 
 32 Mich. 380. 
 
COMMENCEMENT OF SUIT. 
 
 Where Commenced. 
 
 "'"When the principles of law by which the ordinary courts 
 are guided give rights, but tlie powers of those courts are not 
 sufficient to afford a complete remedy, or their modes of pro- 
 ceeding are inadequate,' it is generally admitted that a court 
 of equity may act." {a) 
 
 Circuit courts in chancery, in Michigan, also " have ju- 
 risdiction and authority to bear and determine all cases of 
 encroachments upon the public highways, streets and public 
 alleys in organized townships, incorporated villages and 
 cities." " Such suits may be instituted in the corporate 
 name of such townships, villages and cities." (Ji) 
 
 It is also provided by statute, that "Every suit in chancery 
 shall be commenced in the circuit court for the county in 
 which the property in dispute is situa,ted, if the subject-mat- 
 ter is local, and if it is not local, in the county where one of 
 the parties in interest resides, if either is a resident of the 
 State; but if the subject-matter is not local, and neither par- 
 ty resides in the State, the suit may be brought in any 
 county; and where it is necessary to file an information or 
 bill in chancery, either to compel the specific performance of 
 contract, cancellation of patents from the State, quiet title, or 
 otherwise to affect real estate; and when such real estate 
 shall be situate in different counties, it shall be competent to 
 tile such information or bill in the equity side of the circuit 
 court of any one of said counties in which a part of said real 
 estate may be situate; and such court shall have complete 
 jurisdiction in the premises as fully and effectuallv as if the 
 
 {a) Wallace v. HarrU, 'ifi Mich. 380; Mitford, 111, 121, 122, and notes- 
 Wallace v. Harris, Ibid. 391; Willard's Eq., Tit. "Dower," "Partition-" 
 Store's Eq., §§ 650, 651, 656, 656 b, 658, 632; 1 Spence, 639, 653; 2 lb 
 § 11, and notes; Comp. L. {§ 6369) (§ 5057). Brady v. McCosJcer, 1 Com. 214- 
 Tha//er v. Lane, Har. Chan. 247; Wheeler v. Clinton Canal Bank, lb' 
 449; Amn. Ins. Co. v. Fish, 1 Paige, 90; Whitlockv. DuffieU, 2 M.', Ch" 
 866; Quick v. Stuyvesant, 2 Paige, 84; Malhry v. Vonderheyden, 3 Barb! 
 Ch. 9; Pratt v. Northam, 5 Mason, 96; Pierpont v. Foule, 2 Wood. & M 
 23; Weymouth Y. Boyer, 1 Vesey, Jr. 416; Baxters. Knollys, 1 Tes Sen 
 494; Truman v. Lore, 14 Ohio St. 144; Clary v. Clary, 2 Ired. 85- Hatis- 
 horn V. Day, 19 How. 223. 
 
 (6) Session Laws 1881, p. 255, 
 
COMMENCEMENT OF SUIT. 
 
 Where Commenced. 
 
 whole of such estate were situate in the county in which suits 
 may be commenced. And when it may be necessary to file 
 a bill or information, or to commence any proceedings in 
 chancery on the part or in behalf of the State, the same may, 
 at the election of the attorney-general, be commenced in the 
 circuit court for the county of Ingham, in the equity side 
 thereof, and sa,id court shall have complete jurisdiction and 
 full power and authority in the premises." {a) 
 
 When the subject-matter in dispute shall not exceed one 
 hundred dollars, the courts will dismiss, with costs to defend- 
 ant, all suits in chancerj'^ concerning property, excepting suits 
 between co-partners, and suits for the enforcement of mechan- 
 ics' liens, and suits for the foreclosure of mortgages. 
 This also applies to suits to abate nuisances; and when the 
 aid, of the court is sought to protect the enjoyment of prop- 
 erty, the court will not be governed by the mere value of the 
 property, but will interfere, if the injury will materially lessen 
 the enjoyment of it by the owner. (5) 
 
 Circuit courts in chancery in Michigan have supervisory 
 powers over assignments for the benefit of creditors, (e) 
 
 In Illinois it has been held that where the object of a suit 
 is not to afiect rea,l estate, the jurisdiction of the court is con- 
 fined to the county of the residence of the defendants; and 
 service of process upon a resident of another county will not 
 confer jurisdiction, {d) ■ 
 
 A court of chancery, will entertain a bill for relief when the 
 defendant resides within its jurisdiction, and the relief sought 
 can be obtained by acting directly upon the person, whether 
 the subject-matter of the bill be within its control or not. Of 
 this character are cases for a specific performance of a contract 
 for the conveyance of, or relating to, land beyond the jurisdic- 
 tion of the court, where the court will compel a conveyance in 
 
 (a) Session Laws 1873, p. 31. 
 
 (6) Laws 1881, 119; White v. Forbes, Walker's Ch. 112; Gamber v. 
 Holben, 5 Mich. 331; 9 Paige, 362; Collar v. Harrison, 2S Mich. 519. 
 See Norris v. Hill, 1 Micb. 202. Gomp. L. § 50, 59. 
 
 (c) Laws 1881, 893. 
 
 {d) Aiken v. Lloyd, 28 111. 231. 
 
COMMENCEMENT OF SUIT. 
 
 Security for Costs. • 
 
 accordance with the mode and form prescribed by the laws of 
 the country in which the land is situated; and should it be 
 necessary, in order to carry out such a decree, the defendant 
 may be prevented by a ne exeat from leaving its jurisdiction 
 pendente lite. This is the rule of the common law, and the 
 statute has not changed it. But a court of chancery will not 
 entertain a hill where the relief sought renders it necessary 
 that it should act npon the specific thing, unless the subject- 
 matter of the litigation is within its jurisdiction. Thus, 
 where land is to be affected by the decree, as in cases of peti- 
 tion for partition, admeasurement of dower, foreclosure of 
 mortgage, or the enforcement of a mechanic's lien under the 
 statute, the court must be able to control it directly, or it has 
 no jurisdiction of the case. This is also a rule of the common 
 Jaw, which the statute has not changed, (a) 
 
 SECTION III. 
 
 SECCEITY FOB COSTS. 
 
 WJhen required. — If the complainant is a non-resident, a 
 bond in the penal sum of one hundred dollars, for costs, must 
 be filed before commencing suit. (5) 
 
 ' And the conrt or a circuit court commissioner may, upon 
 sufficient cause shown, require a new bond to be filed, in tile 
 same or an additional amount; and may also require security 
 when the complainant is a resident of this State, if the justfce 
 of the case demands it. (c) 
 
 In Illinois, the 8ta,tnte requiring non-resident complainants 
 to file a bond for costs before commencement of suit, applies 
 in the case of a writ of error sued out in the supreme court; (d) 
 
 (o) Enos V. Hunter, 4 Gilm. 211; Cooleij v. Scarlett, 38 111. 316. (See 
 Bichards v. Hyde, 21 111. 640); Voorhees \. Frisbie, 25 Mich. 476. 
 
 (6) Chancery Rule 6, Comp. L. 1871, §§'5730; to 7411; 7418. 
 
 (c) Chancery Rule 6, C. L. §§ 5730, 7411, 7418; see Bobinaon v. 5m- 
 clair, 1 Denio, 628. 
 
 {d\ Ripley v. Moms, 2 Gilm. 381; Hickman v. Haines, 5 Gilm 20- 
 Boberts v. Fahs, 32 111. 474. 
 
10 COMMENCEMENT OF SUIT. 
 
 No. 1. Form of Bond for Costs, 
 
 and a security for costs in the circuit court is not liable for 
 costs made against his principal in the supreme court, [a) 
 
 Form of boiid for costs. — The bond for costs to be given 
 before issuing process in eliancery, by a non-resident, should 
 be substantially as follows: 
 
 No. 1. Bond for Costs. 
 
 ■ Know all Men by these peesents, that we, A B, of the 
 
 town of county of and State of 
 
 as principal, and C D, of the town of county 
 
 of ■ and State of Michigan, are held and firmly bound 
 
 unto E F in the sum of one hundred dollars, good and law- 
 ful money of the United States, to which payment, well 
 and truly to be made, we bind ourselves, our heirs, executors, 
 administrators, jointly and severally by these presents. Sealed 
 with our seals, and datfed the day of A. D. 188- 
 
 Whereas, the said A B has filed his bill of complaint in 
 
 the circuit court for the county of in chancery, against 
 
 the said E F and whereas, the said A B is not a resident 
 of this State, 
 
 Now, theeefoee, the condition of this obligation is such 
 that if the said A B shall well and duly pay on demand all 
 costs that may be decreed against him in said case of A B, 
 complainant, v.^ E F, defendant, then this obligation to be 
 void, otherwise in force, (b) A B [l. s.] 
 
 C D [l. s.] 
 
 I hereby approve the foregoing bond, both in form and 
 substance, (c) G H, 
 
 Register. 
 
 If a suit is commenced by a non-resident without filing a 
 bond for costs, the court will, on motion, dismiss the same 
 with costs, {d) 
 
 (a) Clark v. Quachetiboss, 28 111. 112. 
 (h) Chancery Rule 6. 
 (c) Maijnard v. Hoskins, 8 Mich. 260. 
 
 See observations upon bonds for costs in Puterbaugh's Common Law 
 Pleading and Practice, pp. 39-43. 
 id) Baker v. Palmer, 83 111. 568. 
 
BILLS IN CHANCERY. H 
 
 Division of Bills. 
 
 CHAPTEE III. 
 
 BILLS IN GHANCERT. 
 
 Section 1. Division of Bills. 
 
 2. Constituent Parts op an Okiginal Bill. 
 
 3. Thb Address. 
 
 4. The Introduction. 
 
 5. Thb Premises, or Stating Part. 
 
 6. Confederating Part. 
 
 7. Charging Part. 
 
 8. Jurisdictional Clause. 
 
 9. Interrogating Clause. 
 
 10. Prayer for Belief. 
 
 11. Prater for Process. 
 
 12. Frame of a Bill. 
 
 13. Signing of Bills. 
 
 14. Swearing to Bills. 
 
 15. Parties to Bills. 
 
 16. Ancient Bills. 
 
 SECTION I. 
 
 DIVISION OF BILLS. 
 
 Bills in chancery are divided into those which are original, 
 and those which are not original. If they relate to matters 
 which have not previously been brought before the court, they 
 are termed original bills, such as form the greater part of the 
 business of a court of chancery. Bills not original are those 
 which relate to some matter already litigated in the court by 
 the same parties, and which are either an addition to, or a 
 continuance of, an original bill, or both, {a) There is another 
 class of bills, which is of a mixed nature, and sometimes par- 
 Co) Stoiy's Eq. PL § 16; 1 Barb. Ch. Pr. 34; Mitf. Eq. PI. 23; Coop. Eq. 
 PI. 43; Barton's Suit in Eq. 41. 
 
12 BILLS IN CHANCERY. 
 
 Constituent Parts of an Original Bill. 
 
 takes of the character of both of the others. Thus, for example, 
 bills brought for the purpose of cross-litigation, or of coutro- 
 verting, or suspending, or reversing some decree or order of 
 the court, or of obtaining the benefit of a former decree, or of 
 carrying it into execution, are not considered as strictly a con- 
 tinuanpe of the former bill, but in the nature of original bills, (a) 
 And if these bills require new facts to be stated, or new parties 
 to be brought before the court, they are so far strictly of the 
 nature of supplemental bills, (i) 
 
 Besides the different divisions of bills here enumerated, 
 original bills are usually divided into: first, original bills pray- 
 ing relief; and, secondly, original bills not praying relief. 
 
 Original bills praying relief, are again subdivided into 
 three heads: Jlrst, original bills, praying the decree of the 
 court touching some right claimed by the person exhibiting 
 the bill, in opposition to rights claimed by the person against 
 whom the bill is exhibited ; secondly, hills of interpleader; 
 and, thirdly, certiorari bill, (c) 
 
 Original bills not praying relief, areof two kinds ;^s^, bills 
 to perpetuate the testimony of witnesses; a,nd,.secondly, bills 
 of discovery. - ' 
 
 Original bills praying relief ai-e those most usually filed, 
 and they will be more fully considered than those of the other 
 sort. Bills of every kind will, however, receive consideration 
 under proper heads. 
 
 SECTION II. 
 
 CONSTITUENT PAETS OF AN OEIGINAL BILL. 
 
 The ordinary form and structure of a bill in equity, though 
 not originally prescribed by any positive regulations, has been 
 long established by usage. The rules which have recently 
 been promulgated by the superior courts of chancery in En- 
 fa) Story's Eq. PI. § 16; Coop. Eq. PL 16. 
 (6) lb. 
 (c) Story's Eq. PI. § 18; Dan. Ch. Pr. 352. 
 
BILLS IN CHANOERT." 13 
 
 The Address. 
 
 gland, and by the Supreme Court of the United States,(a )have 
 introduced many changes in the ancient precedents, and, if 
 generally followed, will tend to reduce pleading and practice in 
 equity to the simplicity and certainty of a written code ; (5) 
 and prevent unnecessary costs and expenses, and promote 
 brevity, succinctness, and directness in the allegations of bills 
 and answers. 
 
 It was formerly supposed that nine distinct parts were neces- 
 sary to every bill in equity; and although some of these are 
 now admitted to be useless, it will be convenient, in analyz- 
 ing the bill, to retain the ancient -divisions. Forms of the 
 constitneut parts of an original bill will be given in the next 
 cliapter. 
 
 SECTION III. 
 
 I. THE ADDRESS. 
 
 In England, the bill is addressed to the Lord Chancellor, or 
 other person haying, for the time being, the custody ^of the 
 great seal. In the United States, the bill is usually addressed 
 to the judge or justices of the court in which the suit is 
 brought, by their proper designation. This address, of course, 
 contains the appropriate and technical description of the court, 
 and must be varied accordingly, (c) A bill is defective, 
 which is not addressed to the court by its proper and legal 
 style, {d) In Michigan it is provided by chancery rule 4, 
 that all bills and petitions shall be addressed: "To the Cir- 
 cuit Court for the County of , in Chancery." 
 
 (a) RuIeB 20-24 of the Supreme Court of the U. S., revised and corrected 
 Dec. T. 1870. 
 
 (6) Barton's Suit in Eq. 41. 
 
 (c) Story's Eq. PL § 26; Mitf.Eq. PL 42; Coop. Eq. PL 9. 
 
 {d) Boifi V. Britten, 2 Chicago Legal News, 33; Chancery Rule 4. 
 
14 BILLS IN CHANCERY. 
 
 The IntroduGition. 
 
 SECTION IV. 
 
 II. THE INTEODUCnON. 
 
 The introductory part should contaia the namea and descrip- 
 tion of the persons exhibiting the bill, commonly called, in the 
 bill, by the title of "your orators and oratrixes," according to 
 their sex; or simply described as the "complainant," at the 
 option of the pleaden The names of the compMnants, and 
 their places of residence, should be set out in the bill, with so 
 much certainty, that the court and adverse party may Snow 
 ■wiiere to resort to compel obedience to any order, rule or 
 process of the court, and also for the payment of costs, (a) 
 
 By the 20th rule of practice for the courts of equity of the 
 United States, it is required that " every bill, in the introduc- 
 tory part thereof, shall contain the names, places of abode, 
 and citizenship of all the parties, plaintiffs and defendants, 
 by and against whom the bill is brought." 
 
 The jurisdiction of the United States Court, in most cases, 
 d:epends upon the citizenship of the parties; therefore, such 
 citizenship must appear in the face of the bill ; otherwise, the 
 bill, in any stage of the proceedings, may be dismissed on 
 motion; (b) nor is it sufficient to describe the complainant as 
 " citizen or resident." (c) The want of a proper averment, 
 in respect of citizenship, in the United States Courts, may be 
 taken advantage of by way of demurrer, {d) 
 
 {a) Lord Red. 43; Dan. Ch. Pr. 40S; Story's Eq. PI. § 26; Barton's suit 
 in Eq. 42; Smith's Ch. Pr. 82, 83; Howe Y. Harvey, 8 Paige, 73; Gore-f. 
 Pettis, 4 Saund. Ch. 403; Vose v. Philbrick, 3 Story, 83.S. 
 
 (h)Howe V. Harvey, 8 Paige, Ch. R. 73; Dodge y. Perkins, i'i&.zsoTi., 
 435, and cases there cited; Bingham v. Cabot, 3 Dall. 382; Jackson v. Ash- 
 ton, 8 Pet. 148. 
 
 (c) Bingham v. Cabot, 3 Dall. 382; Jackson v. Ashton, 8 Pet. 148, 112. 
 
 [d) Story's Eq. PI. § 49; Winnipiseogee Lake Co. v. Worster, 9 Foster, 
 433. 
 
BILLS IN CHANCERY. 15 
 
 The Premises, car Stating Part. 
 
 SECTION V. 
 
 m. THE PEEMISES, OR STATING PAET. 
 
 Tliis part of the bill will, of course, vary with each partic- 
 ular cause of complairvt. It contains a narrative of the facts 
 and circumstances of the complainant's case, and of the wrong 
 or grievance of which he complains, the names of the persons 
 hy whom committed, and against whom he seeks redress, (a) 
 All the material facts, of which the complainant proposes to 
 offer evidence, must be stated, and,, as a general rule, he will 
 not be permitted to offer, or require, evidence of any such fact 
 not so stated, (b) The facts, as stated in the bill, constitute 
 the only ground of relief, (c) A general charge or statement, 
 however, of the matter of fact, is sufficient; and it is not 
 necessary to charge minutely all the circumstances which may 
 conduce to prove the general charge; for these circamstances 
 are properly matters of evidence, which need not be charged 
 in order to let them in as proofs, (d) But a bill filed for di- 
 vorce on the ground of adultery, must state time, place and 
 circumstance, {e) 
 
 (a) Barton's Suit in Eq. 27; Story's Eq. PI. § 27; Mitf. Eq. PI. 43; Coop. 
 Bq. PI. 9; Equity Draftsman, 4 note c; Archibald v. Means, 5 Ired. Eq. R. 
 220; Wrhht v. Dami, 22 Pick. 55; Lingan v. Henderson, 1 Bland. 236; 
 Estep T. Watkins Id. 486; Oliver v. Palmer, 11 Gill. & J. 426; Ilayward v. 
 Carroll, 4 Har. & J. 518. 
 
 (6) Story's Eq. PI. § 28; Irnham v. Child, 1 Bro. Ch. 94; Wilhes v. 
 Rogers, 6 Johns. B. 565: Gordon v. Gordon, 3 Swanat. 472; Sidney v. 
 Sidney, 3 P. Wms. 276; Watkyns v. Watkyns, 2 Atk. 96; Peaeoek v. Ter- 
 ry, 9 Georgia, 148. 
 
 (c) Skinner v. Bailey, 7 Conn. 496; Parker v. Carter, 4 Munf. 273; 
 Cowles T. Buchanan, 3 Ired. Ch. E. 374; Miller v. Furse, 1 Bailey, Ch. R. 
 187; United States BankY. Shultz, 3 Ham. 61; Pinsotn v. Williams, •23 
 Miss. 64. 
 
 {d) Story's Eq. PI. § 28; Chicot v. Lequnse, 2 Ves. 317, 318; Wheeler 
 v. Trotter, 3 Swanst. 177; Nesmith v. Calvert, 1 Wood & Minn. 34; Clarke 
 Y. Per Mm, 2 Atk. 837; Dunham v. Eaton t^ H. R. B. Co. 1 Bond, 492; 
 2'ong V. Margin, 15 Mich. 60. 
 
 (e) Dunnv. Dunn, 11 Mich. 291; Shoemaker v. Shoemaker, 20 Mich. 
 222; Randall v. Randall, 31 Mich. 194. * 
 
16- BILLS IN CHANCERY. 
 
 The Premises, or Stating Part — Certainty Required. 
 
 Tlie stating part, constituting the real substance of the bill, 
 upon which tlie court is called to act, requires great skill and 
 judgment to frame it accurately; and if it has not the proper 
 legal certainty, the defect, as we shall presentl.y see, unless re- 
 moved, may become fatal in every subsequent stage of the 
 cause, [a) 
 
 ^ Certainty required. — The bill must have a reasonable cer- 
 tainty, but need not set out the matter with that decisive and 
 categorical certainty which is requisite in pleading at common 
 law. (b) It should, however, state the right, title, or claim of 
 the complainant, with accuracy and clearness; and- it should 
 in like manner state the injury or grievance complained of, 
 and the relief asked of the court. The other material facts 
 ought to be plainly yet succinctly alleged, and with all neces- 
 sary and convenient certainty as to the essential circumstances 
 of time, place, manner, and other incidents, (c) Chancery 
 rule 8 of Michigan provides that •' bills, answers and petitions 
 Which are to be verified by the bath of the party, the several 
 matters charged, averred or admitted, shall be stated posi- 
 tively, or upon information or belief only, according to the 
 fact." 
 
 A party seeking tlie aid of a court of equity should show 
 distinctly, and unambiguously all the facts necessary to enti- 
 tle him to that aid. {d) Tiie right, title and interest of the 
 complainant should be stated with accuracy, clearness and 
 precision, and the proof in the case must correspond with tlie 
 
 -(a) Story's Eq. PI. § 27; Flint v. Field, 2 Anst. 343; Coop. Eq. PI. 11; 
 White Y. Yaw, 7 Vt. R. 857; Harrison v. Nixon, 9 Pet. 483; Langdon v. 
 Goddard, 2 Story, £67. 
 
 (6) 1 Barb. Ch. Pr. 38; 3 Woodes. Led. 55, p. 370; Cockrell v. Gurhff, 
 26: Ala. 405; Birlei/ v. Staley, 5 Gill & J. R. 432; Tiernan Y. Poor, 1 Gill 
 &i J. R. 216; Surget v. Bi/ers, 1 Hemp. 715. 
 
 (c) Mitf. Eq. PI. 41; Coop. Eq. PI. 5; Shepard v. Shejiard, 6 Conn. R. 
 37; Egremont v. Cotvell, 5 Beav. 62C-623. 
 
 '(d) Manning v. Drake, 1 Mich. 34; LeSaron v. Shepherd, 21 Mich. 272, 
 aiid cases cited; Shepard v. Shepard, 6 Conn. R. 37;- United States Bank 
 v.- ShuUz,S Ham. R. 61; Mercier v. Lewis, S9 Gal. 532; Egremont v. 
 Cowell, 5 Beav. 620; Flint v. Field, 2 Anst. 543; Waugh t. Robbins, 38 
 Hi; '182. - 
 
BILLS IN CHANCERY. 17 
 
 The Premises, or Staling Part— Certainty Required. 
 
 allegations; (a) but the claims of the defendant may be 
 stated in general terms. (J) 
 
 The complainant is not bound to set forth his adversary's 
 rights with the same particularity as his own. And where tlij 
 extent and character of those rights are more particularly witii- 
 in the knowledge of the adverse partj', it is sufficient to allege 
 generally that the defendant has, or claims to have, some 
 rights relative to the subject-matter of the controversy, leav- 
 ing him to disclose in his answer the nature and extent of 
 them; (e) Or the complainant may anticipate a defense, ami 
 allege any matter necessary to explain or avoid it; or oiniN 
 ting to do so, on the coming in of the answer he may intro- 
 duce the new matter into the case by an amendment to tlie 
 bill, (d) 
 
 The material allegations of the bill must be clearly and 
 positively averred; (e) and not by way of recital. And a 
 party can not have relief upon a case not stated in his bill. {/) 
 
 (a) Page v. Webster, 8 Mich. 263; Fitzpatrick v. Benlty, 1 Gilm. 4".4; 
 Wehster^. Webster, 55 111. 325; Gibsons. Carson, 3 Ala. R. 421; Thm/er 
 V. Lam, Walk. Ch. R. 200; Knox v. Smith, 4 Hdw U. S. R. 29^; Tiltov 
 V. Tilton, 9 New Hamp. 385; Harris v. Knickerbocker, 5 Wead. 633; 
 Seltz V. Unna, 6 Wall. 327. ' 
 
 (6) Story's Eq. PI. § 255; Eq. Draft. 5, note c. 
 
 (c) Morgan v. Smith, 11 111. 194; Barring v. Nash, 1 Ves. & B. R. 551; 
 , 1 Barb. Ch. Pr. 4Q; Aikin v. Ballq-rd, Rice Ch. 13, S3e Van Antwiri> v. 
 
 Hulburd, 8 Blatchf. U. S. C. C. 282. 
 
 (d) White V. Morrison, 11 111. 861. 
 
 (e) Primmer v. Patton, 32 III. 528; Wright v. Dame, 22 Pick. 55; Mc- 
 Elwain v. Willis, 9 Wend. 548; Mclntyre v. Trustees, etc., 6 Paige, Ch. 
 R. 239; Spense v. Daren, 3 Ala. 250; Daniels v. Taggart, 1 Gill & J. oil; 
 Hood V. Inman, 4 Johns. Ch.' R. 437; Edivards v. Chilton, 4 W. Va. 352; 
 Manning v. Drake, 1 Mich. 34; Wilson v. Eggleston, 27 Mich. 257; 
 Craig Y. Bradley, 26 Mich. 353; Curtis v. Goodemw, 24 Mich. 18; Denisr.i 
 V. Gibson,2A Mich. 187; Williams v. Hubbard, 1 Mich. 446; Shoemaker 
 v. Gardner, 19 Mich. 96. 
 
 if) White y. Yaw, 7 Vt. 357; Wood v. Genet, ^ Paige, Ch. R. 137; 
 Page v. Greeley, 75 111. 400; Morton v. Smith, 86 111. 117; Thayer\. Lane, 
 Walk. Ch.' 200; Jerome v. Hopkins, 2 Mich. 96; Cicotte v. Gagnier, 2 Mich. 
 381; Warner v. Whittaker, 6 Mich. i:33; Bloomer v. Henderson, 8 Mich. 
 395; Boomier v. Caldwell, 8 Mich. 463; Barrows v. Baughman, 9 Mich. 
 2 
 
18 £ULLS IN CHANCERY. 
 
 The Premises, or Stating Part — Certainty Required. 
 
 The pleadings should consist of nothing but a clear state- 
 ment of facts. All matters of inference or argument are im- 
 pertinent, and will be expunged, and usually with costs, {a) 
 Whatever is intended to be proved should be alleged, other- 
 wise evidence can not be received of the facts; (b) and the 
 facts ought to be so fully a!id particularly stated that the 
 cliancellor can see, from the face of the bill, whether or not he 
 has jurisdiction, and supposing the same to be true, tell pre- 
 cisely what decree to render, (c) And if a bill, as presented, 
 does not exhibit a case for the interference of a court of equity, 
 it may be dismissed or demurred to for want of equity; (fZ) 
 •but it will not be dismissed for that cause, unless it is radi- 
 cally such, so that no discovery or proof can make it a proper 
 subject of equitable jurisdiction, {e) If it shows grounds for 
 relief, but states them imperfectly, it may be aided by the 
 proofs or admissions; (/") but if the facts are so imperfectly 
 stated that the court can not decide upon the merits from the 
 
 213< Wurcherer v. Hewett, 10 Mich. 453; Peckham v. Buffiim, 11 Mich. 
 529; Dunn v. Dunn, 11 Mich. 284; Perkins v. Perkins, 12 Mich. 456; 
 Moran v. Palmer, 13 Mich. 367; Converse V. Blumrich, 14 Mich. 109; 
 Hubbard v. Winsor, 15 Mich. 146; Payne v. Avert/, 21 Mich 524; Fosdich 
 V. Van Huson, 21 Mich. 567; Harieood v. Underwood, 28 Mich. 427; Ford 
 V. Loomis, 33 Mich. 121; Connarton v. Millar, 41 Mich. 608; Geney v. 
 Maynard, 44 Mich. 578. 
 
 {n) Hood V. Inmin, 4 Johns. Ch Rep. 437; Chalmers v. Chalmers, 4 , 
 Grill & J. 420; Sheldon v. Bobbins, 2 Root, 190. 
 
 (b) Hay ward v. Carroll, i Har. & J. 518; Parker M. Carter, 4 Munf. 
 273; Hodgins v. White, 2 Ired. Ch. R. 575; Crocket v. Lee, 7 Wheat. 522; 
 Story's Eq. PI. §§ 28, 257. 
 
 (c) Pennebaker v. Wathan, 2 A. K. Marsh. 315; Dunham v. Eaton, etc. 
 E. R. Co. 1 Bond, 492. 
 
 (d) Seed v. Johnson, 24 Maine, 322; Morel v. Houston, Charl. R. M. 
 234; Winkler v. Winkler, 40 111. 179; Sheldon v. Harding, 44 111. 68; 
 Vieley v. Thompson, 44111. 9; Bruen v. Bruen, 43 111. 409. 
 
 (e) LeRoy v. Veeder, 1 Johns. Ch. R. 417; Holman v. Holman, 3 
 Desau. 210; Wright v. Dame, 22 Pick. 55; Clarh v. Davis, Har. Ch. 227; 
 Thayer v. Lane, Har. Ch. 247; Hawkins v. Clermont, 15 Mich. 511. 
 
 (/) Gorham v. Wing, 10 Mich. 486; Babcock v. Twist, 19 Mich. 516; 
 Moran v. Palmer, 13 Mich. 367; Edwards v. Massey, 1 Hawks, 359; 
 Fisher v. Stone, 3 Scam. 08. 
 
BILLS IN CHANCERY. 19 
 
 The Premises, or Stating Part— Certainty Required. 
 
 fixcts alleged, the bill will be dismissed, {a) A bill must, at 
 the final hearing, show that the matter of it is within the ju- 
 risdiction of a court of chancery. (6) 
 
 The material facts relied upon for relief, must be so dis- 
 tinctly alleged in the bill, that the defendant can readily put 
 them' in issue, or the relief can not be granted, though the 
 facts be proved; (c) and no admission in an answer to a bill 
 can, under any circumstances, lay the foundation for relief 
 under any specific head of equity, unless it be substantially 
 set forth in the bill, (d) And a defect in the charging part of a 
 bill, can not be supplied by a subsequent interrogatory; and 
 the interrogatories are to be construed by the charging part 
 of the bill; (e) nor can defects in the charging part be sup- 
 plied by any subsequent proceedings in the case. (_/") 
 
 Where the facts stated in the bill are disproved, or are de- 
 fectively stated, relief may be granted in some instances, upon 
 tlie facts stated in the answer, (g) 
 
 Where a party comes into equity to open a settled account 
 on the ground of error, the bill must contain a precise speci- 
 
 (a) Fowler v. Sanders, 4 Call. 361; Whittak r v. Dsgraffenreid, 6 A\a,. 
 3XS; White V. Lemi$, 2 A. K. Marsh. 123; Clark v. Bell, 2 B. Monroe, 1; 
 Salisbury v. Miller, 14 Mich. 160; Curtis v Goo'denow, 24 Mich. 18. 
 
 (6) Estep V. Waikins, 1 Bland, 486; Townshend v. Duncan, 2 Id. 45; 
 Herbert v. Hobhs, 3 Stewart, 9; Moore v. Bail, Id. 1-55; McGrew v. Tom- 
 beckbee Bank, 5 Porter, 547; Mei/er v. Pfeiffer, 50 lU. 485. 
 
 (c) Lebaron v. Shepherd, 21 Mich. 271; Htriini v. Handy, 11 Wheat. 
 U. S. 103; Skinner v. Baily, 7 Conn. 496; Wiggiu v. Mayor, etc. 9 Paige, 
 Ch. R. 16; Gibson v. Carson, 3 Ala. 421; Knox v. Smith, 4 How. 298; 
 Kidd V. Manley, 6 Cush. 156. 
 
 {d) Jackson v. Ashton, 11 Pet. 229; Thomas v. Warner, 15 Vt. 110; 
 Story's Eq. PI. §§ 28, 257, 263; Crocksr v. Lee, 7 Wheat. 522; Maury v' 
 Lewis, 10 Terger, 115. 
 
 («) Mechanics' Bank v. Levy,3 Pa,ige, Ch. R. 606; Cowlesy. Buchanan, 
 3 Ired. Ch. 374; Parker v. Carter, 4 Munf. '273; Kisor v. Stancifer' 
 Wright, 323; Story's Eq. PI. § 27. 
 
 (/) Lingan v. Henderson, 1 Bland, 236; Townshend v. Duncan, 2 Id. 
 45; West V. Hall, 3 Hir. & J. 221; Edwards v. Massey, 1 Hawks, 359. 
 
 (g) Salisbury v. Miller, 14 Mich. 160; Diatley v. Murphy, 3 A. K. Marsh. 
 474; Maury v. Lewis, 10 Yergsr, 115. But se3 Jackson v. Ashton, 11 Pet. 
 229; Thomas v. Warner, 15 Vt. 110; Story's Eq. PI. §S 257, 264- Dillev v 
 Barnard, 8 Gill & J. 171. ' 
 
20 BILLS IN CHANCERY. 
 
 The Premises, or Stating Part— Certainty Eequired. 
 
 fication of the errors, otherwise the complainant will not be 
 allowed to prove them at the hearin_^, even though tlie settle- 
 ment of the account is expressed to be " errors excepted," 
 wliich is the usual form of settling accounts, (a) 
 
 Where a party has an adequate remedy at law, a court 
 of equity will not interfere; {b) except in cases of fraud. 
 Fraud is a matter of chancery jurisdiction, and that court 
 would not lose it merely by the statute conferring a similar 
 jurisdiction upon courts of law. (c) And if the remedy 
 at law is doubtful, a court of equity may relieve, {d) 
 
 A complainant must allege in his bill, that he has done, or 
 offered to do, or is ready to perform, everything necessary to 
 entitle him to the relief he seeks, or a sufficient excuse for its 
 non-performance, [e) It is a maxim of equity, of universal 
 application, that he who seeks equity, must do equity, {f) 
 
 Where the facts are charged in the bill to be, or must, from 
 the necessity of the case, be, within the knowledge of the 
 defendant only, a precise allegation is not necessary, {g) 
 
 A bill may be framed with a double aspect, so that, if one 
 
 (a) M.'hane v. Mebam, 1 Ired. Eq. K. 403; Baker v. BiddU, 1 Bald. 394. 
 
 {b)Sm4}h V. Ppwell, 50 III. 21; Thomas v. Caldwell, Id. 139; School, 
 etc. V. Miller, 54 111. 838; Winkler v. Winkler, 40 111. 179; Gardner v. 
 iTprsey, 39 Geo. 664; Bassettv. Brown, 100 Mass. 355; Ohlingv. Luitjens, 
 32 111. 23; Taylor v. Turner, 87 111. 296; Barrons v. Dotij, Har. Ch. 1; 
 Bennett v. Nichols, 12 Mich. 22; Wates v. Neu-hould, 9 Mich. 45. 
 
 (c) Wheeler y. Clinton Canal Bank, Har. Ch, 449; Babcock v. MeCamant, 
 53 111.215; Beauffenon v. Turcotte, Breese, 167 ; Armstrong v. Caldwell, 
 2 Scam. 418; Weirick v. DeZoya, 2 Gilm. 888; Scott y. Whitlow, 20 111. 
 310; Glastenburii v. McDonald, 44 Vt. 450; Freeman v. Keagan, 26 
 Ark. 378. 
 
 {d)Ankrim v. Woodworth, Har. Ch. 835; Wheeler v. Clinton Canal 
 Bank, Har. Ch. 449; Edsell v. Briggs, 20 Mich. 429. 
 
 (e) Oliver v. Palmer, 11 Gill & J. 426; Walburn v. Ingilhy, 1 Mylne & 
 Keene, 61; De Wolf v. Pratt, 42 111. 198; Warner v. Richmond, 53 hi. 52; 
 Board of Supervisors v. Heniteberry, 41 111. 179. 
 
 {f)Mich. State Bank \. Hammond, 1 Doug. 257; Morris v. Hoyt, 11 
 Mich. 9; Conway v. Waverly, 15 Mich. 527; Smith v. Audii^r-genl. 20 Mich. 
 398; Merrill v. Auditor-general, 24 Mich. 170; Putnam v. Reynolds, 44 
 Mich. 113; Corby v. Bean. 44 Mo. 879; Stowe v. Russell, 36 111. 18, 29. 
 
 {g) Aikin v. Ballard, Rice, Ch. 18; Morgan v. Smith, 11 111. 194. 
 
BILLS IN CHAN ERY. 21 
 
 The Premises, or Stating Part — Certainty Required — Exhibits. 
 
 ground fail, tlie complainant may rely upon another, which 
 may be inconsistent with the former, (a) 
 
 Where relief is souglit, on the ground of fraud or usury, the 
 charges should not be general, but the facts and circumstances 
 upon which the charge is founded, should be fully and specif- 
 ically stated, {h) If an allegation be equivocal, and two 
 meanings present themselves, the one most* unfavorable to 
 the pleader will be adopted, (e) 
 
 Exhibits: — If a bill makes an instrument a part thereof, 
 without setting forth the contents, or annexing a copy, it is 
 bad on demurrer, {d) Where a bill of complaint refers to a 
 deed pr other instrument in this wise, "as in and by said in- 
 denture, reference being thereunto had, when' produced will 
 more fully and at large appear," the whole docurrient referred 
 to is made a part of the record, although not fully or accurately 
 recited in the bill, and the complainant may, at the hearings 
 avail himself of sucli portions as are not recited, and also 
 those portions inaccurately set forth, (e). The exhibits are not 
 
 (a) Varick v. Smith, 5 Paige, Ch. R. 137; Murphtj v. Clark, 1 S. & M. 
 221; Baines v. McGee, Id. 208; Hart v. McKeen, Walker's Ch. 417. 
 
 (b) Newell v. Btireau Co. 31 lU. 253: Elstoti v. Blanchard, 2' Scam. 
 420; Hovey v. Holcomb, 11 111. 660; McConnel v. Gibson, 12 III. 128; Kleik 
 V. Horine, 47 111. 430; Henry Co. v. Winnebago Drain Co. .52 111 299- 
 Lewis V. Lewis, 9 Mo. 183; Miller v. Colton, 5 Weo. 516; Witherspoon v 
 Carmichael, 6 Ired. Eq. U^; Fraser v. Hart, 2 Strobh. Eq. 250; SUed v 
 Baker, ISGratt. 880; Smell v. Boudinot, 1 Stockt. N. J. 381- Moore v" 
 Gree», 19 How. U. S. 69; Very v. Levij, 13 How. U.S. U5;' Badger v' 
 Badger, 2 Wall. 87; Langdon v. Goddard, 2 Story, 267; Magniacv Thomp- 
 son, 2 Wall. Jr. 0. C. 209; Hole v. Chandler, 3 Mich. 531; Tongv. Marvin, 
 
 {c)LeBaron v. Shepheid, 21 Mich. 272; Shedden v. Patrick 28 E L 
 & E. R. 56, 68; Foss, v. Harbottle, 2Hare. 461, 562; Vernon'v. Vernon 2 
 Mylne & Craig, 145; Balls v. Margrave, 3 Beav. 284; Chase v. Humphrey 
 6 Conn. R. 1-30; Columbine v. Chichester, 2 Fhil 28; McElwain v Willis 
 9 Wend. 549; Ferriss-d- Eaton v. N. A. F. L Co. 1 Hill 71; Slocum v 
 Clark & Saxton, 2 Hill, 475; Holligan v. C. <& R.I. B. R Co 15 111 568- 
 Lemons. Stevenson, 36 111.49; Vining y. Leeman, 45 III. 246- Ha«»u v' 
 Morton, 33 111. 398; West v. Schnehly, 54 111 523 ' 
 
 (d) Martin,. McBryde. 3 Ired. Ch. 531; King v. Trice, 3 Ired. Ch. 668 
 (e)Swetland v. Swetland, 3 Mich. 482; 1 Daniels, Ch. PL & Pr., 420. 
 
22 BILLS IN CHANCERY. 
 
 The Premises, or Stating Part — Exhibits — Multifariousness. 
 
 a part of the bill, bnt are part of the jiroof, and can not aid de- 
 fective statements in the bill, {a) Co])ies of deeds filed with 
 the bill as exhibits, are made, in ]e<;al intendment, portions 
 thereof, and should be objected to before the hearing, if at all. 
 {b) And where the execution of a deed has been admitted 
 in the answer, and a copj' has been iiled, as an exhibit, it can 
 not be objected'to for the first time at the trial, (e) It is suf- 
 ficient to allege the undertaking in a legal instrument, ac- 
 cording to its legal effect, (d) 
 
 The bill must state the whole subject — and not too 
 MANY subjects — Matters in litigation not divisible. — The 
 bill mnst be brought for the whole subject in dispute.. The 
 court will not permit a bill to be brought for a part of a 
 matter only, so as to expose a defendant to be harassed by re- 
 peated litigations concerning the same thing; {e) nor for one 
 of two claims upon the same defendant, {f) 
 
 Multifariousness. — As the bill should not omit anything 
 which is material to state, it is equally important that it 
 should not run into the oppasite defect, and attempt to embrace 
 too many objects, it being a rule in equity that two or more 
 distinct subjects can not be included in the same snit.^ — -The 
 oifense against this rule is termed m.ultifariousness^ and will 
 render a bill liable to demurrer, {g) As to what constitutes 
 multifariousness, it is impossible to lay down a general rule; 
 every case must be governed by its own circumstances, and 
 
 (a) Caton v. WilUn, 5 Ired. Ch. 335. 
 
 (6) Surget v. Byers, 1 Hemp. 715. 
 
 (c) Chancery Bule 56; Green v. Campbell, 2 Jones' N. C. Eq. R, 446. 
 
 {d) Jerome v. Hopkins, 2 Mich. 96. 
 
 (e)Mitf. Eq. PI. 133; 1 Barb. Ch. Pr. 40. 
 
 (f)Purfoy V. Purfoy, 1 Vern. 29; 1 Barb. Ch. Pr. 40. 
 
 [g] Wales v. Netvbould, 9 Mich. 5S; Taylor v. King, 32 Mich. 42; See, 
 also, Wheeler v. Clinton Canal Banh. Har. Ch. 449; Ingersoll v. Kirby, 
 Walk. Ch. 65: Page'y. Webster, 8 Mich. 263; Hufiton v. Piatt, 11 Mich. 
 264; 1 Dan. Ch. Pr. 437; 1 Barb. Ch. Pr. 40; Supervisors v. State's Attorney, 
 31 111. 74; OUwr v. Piatt, 3 How. U. S. R. 333; Many v. Beekman Iron 
 Co. 9 Paige, Ch. R. 188; Luckett v. White, 10 Gill & J. 480; Abraham v. 
 Phttora, 3 Wend. 538; Thurman v. Sheldon, 10 Yerger, 383; Biiffalow v. 
 Buffalow, 2 Fred. Ch. 113; Stiwii v. Coalter, 4 Rand. 74. 
 
BILLS IN CHANCERY. 23 
 
 The Premises, or Stating Part — Multifariousness. 
 
 the court must exercise a sound discretion on the subject, (a) 
 Joint and separate demands can not be joined in a bill with- 
 out rendering it multifarious. {(>) And as a bill by the same 
 complainant against the same defendant, for different matters, 
 would be considered multifarious, so a fortiori, would a bill 
 by several complainants, demanding distinct matters against 
 the same defendant, (c) But a bill does not become multi- 
 farious because all the complainants are not interested to an 
 equal extent. {S) 
 
 When the object of the bill is single, to establish and ob- 
 tain relief for one claim in which all the defendants may be 
 interested, it is not multifarious, although the defendants may 
 have different and separate interests; (e) tlius several under- 
 writers on a policy of insurance may join in a bill in equity 
 against the assured. (/) A bill brought against several de- 
 fendants, seeking redress for injuries arising out of trans- 
 actions with them separately, at different times, ;and relating 
 to different subjects, would be bad for multifariousness. (^) 
 Two good causes of action arising out of the same transac- 
 tion, in which all the defendants are interested in the same 
 
 (a) Wales v. Kewboulcl, 9 Mich. 45; Gaines v. Chew, 2 How. U. S. R. 
 619; Warren v. Warren, 56 Maine, 360; Oliver y. Piatt, 3 How. U. S. 333; 
 Id. 2 McLean, &67; Shields v. Thomas, IS How. U. S. 253; Fitch v. Creigh- 
 ton, 24 How. U. S. 159; McLem v. Laf. Bank, 3 McLean, 415; Sedam v. 
 Williams, 4 McLean, 55. 
 
 (6) HartY. McKeen, Walk. Ch. 417; Harrison v. Hogg, 2 Ves. Jr. 323; 
 Boyd V. Hoyt, 5 Paige, Ch. R. 65; Ingersoll v. Kiriy, Walk. Ch. 65; Ryan 
 T. Trustees of Shawneet-own, 14 111. 20; Burnett v. Lester, 53 111. 325; 
 West V. Randall, 2 Mason, 181; see Atwill v. Ferrett, 2 Blatchf. C. C. 4o! 
 
 {c) Jones V. Garcia Del Rio, 1 Turn. & Russ. 301; 1 Barb. Ch. Pr. 40; 
 Supervisors, etc. v. State's Attorney, 31 111. 74; Sheriff v. Oil Co. 7 Phil! 
 (Pa.) R. 4; Darcy v. Lake, 46 Miss. 109. 
 
 id) Kuye v. Moore, 1 Sim. & Stu. 61; 1 Barb. Ch. Pr. 41; Clarkson v. 
 DePeyster, 3 Paige, Ch. R. 320; Bank of Muskingum v. Carpmter, 
 Wright, 729; Shidds v. Thomas, 18 How. U. S. 253. 
 
 (e) Bughee v. Sargeant, 23 Maine, 269. 
 
 {f) Buckley v. Starr, 2 Day, 552. 
 
 (g) Coev. Turner, 5 Conn. 86; Mix v. Hatchkiss, 14 Conn. 32; Inger- 
 sollY. Kirby,W3X\. Ch. 65; Burnett y. Lester, ,53 111.325; Walker v. Tay- 
 lor, 42 Ala. 297; Durling v. Hammer, 20 N. J. Eq. 220; Supervisors, etc v 
 State's Attorney, 31 111. 74. 
 
24 BILLS IN CHANCERY. 
 
 The Premises, or Stating Part — Multifariousness. 
 
 claim of riglit, may be joined in one snit without being 
 multifarious, {a) But if a claim against several defendants is 
 joined with a claim in wliich one only of the defendants is 
 interested, and which is wholly disconnected with the claim 
 against all the defendants, all or either of them may demur 
 for multifariousness, (i) A bill in which demands against the 
 defendant, in his private capacity, are joined with demands 
 against him as executor, etc., will be dismissed on demurrer, (c) 
 A bill is not multifarious if it be single as to the subject- 
 matter and object thereof, and the relief sought, if all the de- 
 fendants are connected, though differently, with the whole 
 subject of dispute; {d) and where a bill is framed with a two- 
 fold object, either for a specific delivery of the property, or an 
 enforcement of a supposed lieta, it is not multifarious, {e) 
 
 It seems that the objection of multifariousness is confined 
 to cases where the case of each defendant is entirely distinct- 
 and separate in its subject-matter from that of his co-defend- 
 ants, for the case of one defendant may be so entire as to be 
 incapable of prosecution in several suits, and some other de- 
 fendant may be a necessary party to only a portion of the 
 case; in which latter case, multifariousness is not an available 
 objection, {f) 
 
 If the owner of the equitable title to land, in a bill to com- 
 pel a conveyance of the legal title to him, should join the 
 owner of adjoining land as a defendant to settle a disputed 
 question of boundary, the bill would be multifarious, {g) 
 
 Where separate contracts are made with the same indi- 
 vidual, with respect to the same subject-matter, they may be 
 
 (a) VaricJc v. Smith, 5 Paige, Ch. R. 137. 
 
 (h) Swift V. Eckford, 6 Paige, Ch. R. 22. 
 
 (c) Davone v. Fanning, 4 Johns. Ch. R. 199; Gill v. Clagett, 2 Gill & 
 J. 14; Bryan v. Blythe, 4 Blaekf. 249. 
 
 {d) Watson v. Cox, 1 Ired. Ch. R. 389: Vann v. Harget, 2 Dev. & Bat. 
 Ch. 31; see Payne v. Hooh, 7 Wall. 425. 
 
 (c) Murphy v. Clark, 1 S. & M. 221; Balnea v. McGee, Id. 208; 9 Yer- 
 ger, 287; Whitney \. Whitney, 5 Dana, 327. 
 
 (/) Kennedy v. Kennedy, Z Ala. 571. _ 
 
 {g) Hickman v. Cooke, 3 Humph. 640, . 
 
BILLS IN CHANCERY. 25 
 
 The Premises, or Stating Part — Scandal and Impertinence. 
 
 combined in one bill ; (a) and persons holding distinct in- 
 terests under the same title may join in a suit for investigating 
 their equity; (5) but' several complainants claiming distinct 
 rights, having no community of interests, can not join in the 
 same action; (o) nor can several injuries by separate persons 
 be joined in chancery any more than at law. (d) 
 ' Several property owners may join in the same bill to re- 
 strain the collection of an illegal tax assessed against them 
 severally, asking relief against the same injury on the same 
 ground, (e) 
 
 "Where several parties are joined as complainants, the bill 
 must make a common cause for complainants, or it will be 
 multifarious. A bill to enforce the collection of a tax is mul- 
 tifarious, if a portion of the errors complained of affect a part 
 only of the complainants. (/") 
 
 Scandal and Imcpbetinence. — In framing a bill, the solic- 
 itor should see that it does not contain statements or charges 
 which are scandalous or impertinent; for if it does, it may be 
 excepted to by the defendant, and the court will order such 
 parts to be expunged,with costs against the party offending, ((f) 
 
 Scandal consists in the allegation of anything which is un- 
 becoming the dignity of the court to hear, or is contrary to 
 good manners, or which charges some person with a crime not 
 necessary to be shown in the cause. (A) To which may be add- 
 
 (n) Lynchy. Johnson, 2 Litt. 98; Hart v.McKeen, Walk. Ch. 417. 
 (J) Tilford V. Henderson, 1 A. K. Marsh. 483; Scrimeyer v. Buckannon, 3 
 A. K. Marsh. 219; Bank of Muskingum v. Carpenter, Wright, 729.' 
 
 (c) Taylor Y. Kinj, 32 Mich. 42; Barry v. Sogers, 2 Bibb, 314; Armstrong 
 V. Athens Co. 10 Ohio, 235; Ohio v. Ellis, 10 Ohio, 456. 
 
 (d) Burnett v. Lester, 53 III. 325; Glamorgan v. Guisse, 1 Mo. 131; Walts 
 v. Newhould, 9 Mich. 58. 
 
 (e) Mt. Carbon Coal, etc., Co. v. Blanchard, 54 III. 240; HarwardY. The 
 St. Clair and Monroe Levee and Drainage Co. 51 111. 130; see Cutting y 
 Gilbert, 5 Blatchf. C. C. R. 259. 
 
 (/) Kerr v. Lansing, 17 Mich. 34; Schofield v. Lansing, 17 Mich. 437. 
 {g)l Dan. Ch. Pr. 451-2; 1 Barb.Ch.Pr. 41; McConnell v. Holobush 
 U 111. 61. 
 {h) 1 Barb. Ch. Pr. 41; Prac. Reg. 883. 
 
26 BILLS IN CHANCERY. 
 
 ^ . , 
 
 Premises or Stating Part — Scandal and Impertinence. 
 
 ed, that any unnecessary allegation bearing cruelly upon the 
 moral character of an individual, is also scandalous, (a ) 
 
 When a bill is not pertinent, or unnecessarily reflects upon 
 the opposite party, such portions of it will be stricken out, at 
 the costs of the solicitor so offending. Neither suitors nor 
 solicitors should be allowed to manifest their personal feelings 
 upon the records of the court. (5) 
 
 ImpertineiiGe is the same kind of fault in pleadings in 
 equity which in those at common law is denominated surplus- 
 age. This at law, taken in its largest sense, includes the in- 
 troduction of unnecessary matter of whatever description, and 
 includes the admission of matter wholly foreign, as well as 
 of matter, which, tliough not wholly foreign, does not require 
 to be stated, or which, if stated, should be stated with concise^ 
 ness. (c) It is not impertinence, in a bill amended after an- 
 swer, to adopt the language of the answer, and set forth its 
 averment by way of pretense, with a charge to meet them, (d) 
 In a bill to remove a trustee, it is not scandalous or im- 
 pertinent 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 im- 
 pertinent, 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, aifords no neces- 
 sary or legal inference 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, {e) 
 
 (a) Coffin V. Cooper, 6 Ves. 514 . 
 
 (6) McConnelU. Hololush, 11 111. 61; 1 Dan. Ch. Pr. 451. 
 (c) Staph, on PI. 422; 1 Barb. Ch. Pr. 41; Langdoti v. Pickering, 19 
 Maine, 214. 
 {d) Seeley v. Boehm, 2 Mad. 176. 
 (e) B.irb. Ch. Pr. 41; Earl of Portsmouth v. Fellows, 5 Mad. 450. 
 
BILLS IN CHANCEEY. 27 
 
 Constituent farts— Confederating Part — Cliarging Part. 
 
 SECTION VI. 
 IV. CONFEDKEATING PAET. 
 
 The confederatini? part contains a general allegation or 
 general charge of a confederacy between the defendants and 
 other persons to injure or defraud the complainant. The 
 usual tbnn of the charge is that the defendants, combining 
 and confederating togetlier, and with divers other persons, as 
 yet to the complainant unknown, but wliose names, when dis- 
 covered, he prays may be inserted in the bill, and they be 
 made parties defendants thereto, with proper and apt words 
 to charge tliem with the premises in order to injure and op- 
 press the plaintiff in the premises, do absolutely refuse, etc., 
 or pretend, etc. {a) Though the charge of confederation is 
 usually made in the bill, it is treated as entirely nugatorv, 
 and need not be denied or responded to in the answer; (b) and 
 may be omitted in the bill, or inserted, at the option of the 
 complainant, (c) The practice of inserting the charge arose 
 from the idea that parties could not be added to the bill, by 
 amendment, without it, but it is entirely unnecessary for that 
 purpose. The mere allegation of combination or confederacy 
 of the defendants, simply as such, could never alone have 
 been a just foundation for the jurisdiction of a court of equity 
 in the absence of all other proper matter to sustain it. Con- 
 federacy or combination, as a gravamen, seems clearly coo-ni- 
 zable at law. {d) 
 
 SECTION VII. 
 
 v. CHAEGING PAET. 
 
 Although the charging part of the bill is generally inserted, 
 yet it is not essential tliat it should be. That part of the 
 
 (a) Story's Eq. PL § 29; Barton's Suit in Eq. 33; Coop. Eq. PL 9- Eq 
 Draft. 5-6. 
 
 (ft) Story's Eq. PL %2Ti; Eq. Draft. 5, note d; Barton's Suit in Eq. 33- 
 Coop. Eq. PL 10; 1 Hoif. Ch. Pr. 4l; 1 Dan. Ch. Pr. 375. ' ' 
 
 (c) Eq. Pr. U. S. S. C. 1870, Rule 21; 8 Ves. 404; 3 Mad. H. 
 
 {d) Barton's Suit in Eq. 33, note; Story's Eq. PL § 27-29; Mitf. Eq. PL 40. 
 
28 BILLS IN CHANCERY. 
 
 Constituent Parts — Charging Part — Jurisdictional Clause. 
 
 bill may be omitted, (a) Tlie equitable ground of relief, on 
 tlie part of the complainant, must appear in the stating part 
 of the bill; for if the equity only appears in the charging 
 part, the bill will be demurrable, (b) If the complainant can 
 foresee the matter which the defendant will set up to protect 
 himself against the allegations of the bill, such matter may be 
 introduced by this mode of charging, which affords an 
 opportunity of rebutting its effects, by chai-ging facts of an op- 
 posite tendency. It is also used sometimes for the purpose of 
 discovering the nature of the defendant's case; or to put in 
 issue some matter which the complainant does not desire to 
 admit; (o) for which purpose the charge of the pretense of the 
 defendant is held to be sufficient, (d) Thus, for example, if a 
 bill is filed on any equitable ground by an heir, who appre- 
 hends that his ancestor has made a will, he may state his 
 title as heir, and alleging the will by way of pretense of the 
 defendant's claiming under it, may make it a part of the case, 
 without admitting it. (e) 
 
 SECTION VIII. 
 
 VI. JURISDICTIONAL CLAUSE. 
 
 ' This part of the bill is intended to give jurisdiction of the 
 suit to the court by a general averment, that the acts com- 
 plained of are contrary to equity, and tend to the injury of 
 the complainant, and that he has no remedy, or not a complete 
 remedy, without the assistance of a court of equity, (y) This 
 
 (a) Welf. Eq. PI. 102; Parbrklge v. Haycraft, 11 Ves. 575; Story's Eq. 
 PL § a3; Eq. Pr. U. S. S. C. R le 21. 
 
 (6) Flint V. Field, 2 Anst. 543; Fawen's Bill in Ch. 27; Gregory v. 
 Molesworih, 3 Atk. 626. 
 
 (c) Barton's Suit in Eq. 34; Gregory v. Molesworth, 3 Atk. 626. 
 . id) Mitf. Eq. PL by Jeremy, 43; Parbridge v. Haycraft, 11 Ves. 574. 
 
 (e) Story's Eq. PL '§31; Van Heythuysen's Eq. Dra;ft. p. 5; Barton's 
 Suit.in Eq. 34; Welf. Eq. PL 103. 
 
 (/) Barton's Suit in Eq. 27, 28j Stpry's Eq. PL §§ 10, 84; Coop. Eq. PL 
 10, 11. 
 
BILLS IN CHANCERY. 29 
 
 Constituent Parts — Jurisdictional Clause — Interrogating Part. 
 
 clause in the bill, however, is wholly unnecessary, and the 
 omission of it does not render the bill defective, {a) and it may 
 be nsed or not, at the discretion of the complainant. (5) The 
 averment does not confer jurisdiction, but the facts stated in 
 the bill must of themselves make a case within the jurisdiction 
 of a court of chancery, (c) At best, tlierefore, the clause is a 
 mere superfluity. 
 
 SECTION IX. 
 
 / i 
 
 VII. INTEEEOGATING PAET. 
 
 The interrogating part of the bill contains a prayer that the 
 defendants may answer all and singular the rnatters contained 
 in the stating and charging parts of the bill, not only accord- 
 ing to their respective knowledge ajid remembrance of the 
 facts stated, but also, according to the best of their several 
 and respective hearsay, information and belief The bill 
 usually requires an answer under oath; but under the statute 
 of Michigan, as well as several other states, the complainant 
 may waive the necessity of the answer being made on the oath 
 of the defendant. The general interrogatory in a bill is suffi- 
 cient to entitle a party to a full answer to all the matters 
 stated, {d) But this fact has not, in practice, precluded tlie 
 use of special interrogatories, which are sometimes' regarded 
 as of great importance in enlarging a general charge, and ex- 
 tending it to all the minute and collateral circumstances at- 
 tending the fact. Yet, under the Michigan practice, they are 
 very rarely used. 
 
 The interrogatories are always to be construed by the charg- 
 
 (a) Story's Eq. PI. § 34; Lord Red. 44; 1 Dan. Ch. Pr. 573, note; Bate- 
 man v. WUloe,! Sch. & Lef. 204; Welf. Eq. PI. 104. 
 
 (6) Eq. Pr. U. S. S. C. 1870, Rule 21; Eq. Draft. 5, note g. 
 
 (c) Lord Red. 44; Mai/ v. Parker, 12 Pick. 34; Mitf. Eq. PI. 35; 1 Barb. 
 Ch. Pr. 36; Chuse v. Palmer, 12 Shep. 341; Manning v. Drake, 1 Mich. 34^ 
 
 {cl)Ja.ques ^.Methodist Church, 1 Johns. Ch. R. 75; Story's Ea PI 
 §§ 36, 38. ^" 
 
30 BILLS IN CHANCERY. 
 
 Constituent Parts — Interrogating Part. 
 
 iug part of the bill, and must be founded upon the state- 
 ments or charges in the bill, and can not be more extensive 
 than these, (a) If there is nothing in the prior part of the 
 bill to warrant an interrogatory, the defendant is not' bound to 
 answer it; (J>) but if he does answer it, the matter is put in 
 issue, (c) Tlie interrogating part of the bill is not regarded as 
 absolutely necessary,- though it is generally used, {d) especially 
 where the answer of the defendant is required to be under 
 oath. Where the complainant waives the necessity of the 
 answer being made on the oath of the defendant, no good 
 reason for interrogatories exists, and they may well be dis- 
 pensed with. 
 
 Chancery rule 18 says that " If the complainant waives the 
 necessity of the answer being made on oath of the defendant, 
 it must be distinctly stated in the bill. Where the answer is 
 put in without oath, it may be excepted to for scandal and 
 impertinence; but the complainant shall not be at liberty to 
 except thereto for insufficiencj'; but all material allegations 
 in the bill which are not answered and admitted, may be 
 proved by him in the same manner as if they were distinctly 
 put in issue by the answer; and if no replication is tiled, the 
 matters of defense set out in the defendant's answer^ will, on 
 the hearing, be considered as admitted by the complainant, 
 although the answer is not on oath." 
 
 An answer called for on oath, so far as responsive, is evi- 
 dence for, as well as against, defendant, {e) Such an answer 
 is treated as evidence, like unto a deposition. (_/) But new 
 
 (a) Mechanics' Bank v. Levi/, 3 Paige, Ch. R. 606; Cowles v. Buchanan. 
 8 Ired. Ch. R. 374; MucUeston v. Brown, 6 Ves. 62; Parker y. Carter, 4 
 Munf. 273; Story's Eq. PI. § 35. 
 
 (6) Eberhj v. Groff, 9 Harris, 256; Wigram on Biso. 74; 1 Barb. Ch. Pr. 
 36; Kisor v. Stanscifer, Wright, 323; Hagthorp v. Hook, 1 Gill & J. 
 270; Story's Eq. PL § 36. 
 
 L(c) 1 Ves. Sr. 534, 538; Mitf. Eq. PL 38; Story's Eq. PL §§ 36, 37; 1 Dan. 
 Ch. Pr. 432; Eq. Draft. 5, note g. 
 
 (d) Story's Eq. PL § 38. 
 
 (e) Walker's Ch. 267; Sobinson v. Cromelien, 15 Mich. 316. 
 
 (/) So6ert« v. Jlf)7es, 12Mich. 297; Hart v. Cai^jeoie/-, 36 Mich. 402; 
 Van Dyke v, Davis, 2 Mich. 144. 
 
BILLS IN CHANCERY. 31 
 
 Constituent Parts— Interrogating Part— Prayer for Relief. 
 
 matter broaght in by the answer is not evidence for the de- 
 fendant, (a) An answer without oath is but a pleading, and 
 is of no effect as mere evidence, otherwise than as an admis- 
 sion, in which respect it is conclusive on the defendant. (5) 
 Failure to admit facts set up in the bill is, in an answer, equiv- 
 alent to a denial, and leaves the burden of proof on complain- 
 ant; while if the answer by implication admits allegations of 
 tlie bill, it relieves complainant from the burden of proof, (c) 
 
 SECTION X, 
 
 VIII. PEATEE FOR BELIEF. 
 
 The bill mnst also contain a prayer for relief This must 
 depend upon the fects of each case, and the nature of the relief 
 sought, and should be framed with great care. Unless there 
 is a prayer, there can be no relief for the complainant, (d) And 
 if, for any reason founded on the substance of the case, as 
 stated in the bill, the complainant is not entitled to the relief 
 he prays, either in whole or in part, the defendant may de- 
 mur, (e) 
 
 The prayer for relief is divided into two kinds; Prayer for 
 specific relief, and prayer for general relief. la most cases, a 
 prayer for general relief is sufficient to enable the complainant, 
 to obtain such a decree as his case entitles him to; but it is 
 the usual and better practice for the complainant to pray, 
 first for such specific relief as he thinks he ought to have, and 
 then for general relief. (/") But under the prayer for general 
 
 (o) Hunt V. Thorn, 2 Mich. 213. 
 
 (6) Morris Y. Hoyt, 11 Mich. 9; Emerson v. Atwater, 12 Mich. 314; 
 Willis V. Henderson, 4 Scam. 13; Chambers v. Roive, 36 111. 171; Hopkins 
 V. Granger, 52 111. 501. 
 
 (c) Hardwich v. Bassett, 25 Mich. 149; Shoohv. Proctor, 27 Mich. 349. 
 
 {d) Driver v. Fortner, 5 Porter, 9. 
 
 (e) Mitf. Eq. PI. 133; 1 Barb. Ch! Pr.40; Story's Eq. PI. §40. See Gould 
 V. Ryon, 14111. 53; Kuckenbeirery. Beckeri, 41 111. 172; Curtis v. Good- 
 enow, 24 Mich. 18. 
 
 (/) Barton's Suit in Eq. 46; Story's Eq. PI. § 40-43; Hunter's Suit in 
 Eq, 16, 18; Thomason v. Smithson, 7 Porter, 144; McNab v. Heald, 41 111. 
 326; Baper v. Saunders, 21 Gratt. Va. R. 60. 
 
32 BILLS IN CHANCKKY. 
 
 Constituent Parts — Prayer for Relief. 
 
 relief, such relief only can be granted as the case stated in the 
 bill, and sustained by the proof, will justify, {a) "When there 
 is no obstruction to the particular relief prayed for, the com- 
 plainant can not abandon it, and ask a different decree under 
 the prayer for different relief. (5) 
 
 It is never safe to omit the prayer for general relief, for if 
 the complainant should mistake the relief to which he is en- 
 titled, in his special prayer, the court may, under the prayer 
 for general relief, grant him such relief as he ought to have, 
 consistent with the case made in the bill, (c) But if there is 
 no prayer for general relief, then if the complainant should 
 mistake the relief to which he is entitled, no other relief can 
 be granted, and his suit must fail, at least, unless an amend- 
 ment of the prayer is allowed, {d) 
 
 Under the general prayer for relief, the court will only 
 grant such relief as. tlie. statements of the bill will justify, 
 and will not ordinarily allow a bill framed for one purpose to 
 answer for another; especially if the defendant may be sur- 
 prised or prejudiced by it. If, thereforCj the complainant 
 has doubts as to the relief he ought to have, he should frame 
 his bill with a double aspect,, so that if the court should 
 decide against him in one view of the case, it may yet afford 
 him assistance in another, (e) 
 
 {a) Hdbson v. McArthur, 16 Pet. 182; Gibson v. McCormick, 10 Gill & 
 J. 65; Lingaiw. Henderson, 1 Bland, 236; James -v. Bird, 8 Leigh, 510; 
 Danforihv. Smith, 23 Vt. 247; Brown v. McDonald, 1 Hill, Ch. R. 297; 
 Jones v. Bush, 4 Hairing. 1; Kelley v. Payne, 18 Ala. 371; Slone v. An- 
 derson, 6 Foster, N. H. 506; CFunnellv. Cockerill, 84 111. 319. 
 
 (h) Allen v. Coffman, 1 Bibb, 469; Hilleary v. Hurdle, 6 Gill, 105; 
 Kernegay v. Carroway, 2 Dev. Ch, 403; Pleasants v. Glasscock, 1 S. & M. 
 Oh. 17. 
 
 (c) Wilkinson v. Beal, 4 Mad. 408; Beaumont v. Boulhree, 5 Ves. 495; 
 Hiern v. Mill, 13 Ves. 119, 120; English v. Foxall, 2 Pet. 595; Hdbson v. 
 McArthur, 16 Pet. 195; Danforth v. Smith, 23 Vt. 247; Hilleary y. Hurdle, 
 6 Gill, 105; Scudder v. Young, 25 Maine, lbS;Sheppard v. Starke, 3 Munf. 
 29; Stanleys. Valentine, 79 111. 544; Hopkins \. Snedaker, 71 111.449. 
 
 (d) Story's Eq. PI. § 41; Coop. Eq. PI. 14; Cook \ . Martyn, 2 Atk. 2; 
 Polky. Clinton, 12 Ves. 62-65; Thomason v. Smiihson, 7 Porter, 144. 
 
 (e) Story's Eq. PL § 42; Dan. Ch., Pr. 434, 441 j 1 Hoff. Ch. Pr. 49; 
 
BILLS IN CHANCERY. S3 
 
 Constituent Parts — Prayer of Process — Frame of a Bill 
 
 SECTION XI. 
 IX. PEAYEE OF PROCESS. 
 
 This part of the bill prays process to compel the defendant 
 to appear and answer the bill, and abide the determination of 
 the court on the subject. Care must be taken to insert the 
 names of all persons who are intended to be made parties; 
 for it is a general rule that none are parties, although named 
 in the bill, against whom process is not prayed, {a) The first 
 process prayed is a writ of subpcena, (S) which requires the 
 defendant to appear and answer the bill on a certain day 
 na'med in the writ. If the complainant wishes an infunction 
 against the defendant, he must not only pray for it in the 
 prayer for relietj but also in the prayer for process, (c) A 
 prayer for general relief will not be sufficient to authorize it. {d) 
 If only a temporary injiT^ction is wanted, the bill must also 
 contain a formal prayer for it. (e) 
 
 SECTION XII. 
 
 FEAME OF A BILL. 
 
 We have now given the nine formal parts of an .original 
 bill praying relief, as it is generally fratned; upon which 
 Lord Redesdale has made the following remarks: "Some of 
 them are not essential ; and particularly it is in the discre- 
 
 Mitf. Eq. PI. .38; Coop. Eq. PI. 14: Jones v. Parishes, etc. 3 Swanst. 208; 
 Legal v. Miller, 2 Ves. 299; Walker v. Devereaux, 4 Paige, Ch. 229, 
 Scudder v. Young, 25 Maine, 153; Colton v. Ross, 2 Paige, Ch. R. 396, 
 and the cases there cited as to proper forms o prayer for relief. 
 
 (o)Barb. Ch. Pr. 37; Story's Eq. PI. §44; Coop. Eq. PL 16; Fawkes 
 V. Pratt, 1 P. Wms. 593; Windsor \. Windsor, 2 Dick. 707; Elmendorfv. 
 Delaney, Hopk. 555. 
 
 (6) Peltier v. Pelliw, Har. Ch. 19. 
 
 (c) 1 Barb. Ch. Pr. 37; Wood v. Beadel, 3 Sim. 273: Taylor v. , 
 Walk. Ch. 490. 
 
 (a) Barb Ch. Pr. 37; Wright v. Atkins, 1 Ves. & B. 314. 
 
 (e) Walker v. Devereaux, 4 Paige, Ch. R. 229. 
 
 3 
 
34 BILLS IN CHANCERY. 
 
 Frani 3 of a Bill — Sign ng of Bills. 
 
 tion of the person wlio prepares the bill, to allege any pre- 
 tense of the defendant in opposition to. the plaintiff's claims, 
 or to interrogate the defendant specially. The indiscriminate 
 nsc of tliese parts of a bill, in all cases, has given rise to a 
 common reproacli to practicers in this line, that every bill con- 
 tains the same story, tliree times told. In thei hnrry of busi- 
 ness, it may be difficnlt to avoid giving ground for the re- 
 proach. But in a bill, prepared with attention, the parts will 
 be found to be perfectly distinct, and to have their separate 
 and necessary operation." {a) 
 
 SECTION XIII. 
 
 SIGNING Oy BILLS. 
 
 Except in capes where an injunction is asked for, or a dis- 
 covery, or an answer on oath is required from the defendant, 
 bills are usually signed by the solicitor alone and not by the 
 party, {h) If the complainant .sues in person, however, it 
 must be signed b}' him. And in that case, it seems that it 
 need not be signed by counsel, (c) The general rule, however, 
 is that the bill must be signed by counsel. And if it is not 
 so signed, it will be, on motion, stricken from the files ; or it 
 may be demurred to for that cause, and a bill not signed in 
 person by complainant, or lias not the ijesponsible signature 
 appended, by himself or some authorized representative, may 
 be stricken from the files. A printed signature is not 
 good, {d) Signing by counsel, on the back, is held suffi- 
 cient, {e) 
 
 (a) 1 ilitf. Eq. PI. by Jeremy, 47; Story's Eq. PI. § 46. 
 
 (6) Hutch V. Eustnphieve, 1 Clarke, 63; 1 Barb. Cli. Pr. 43. 
 
 (c) 1 Hoff. Ch. Pr. 97; 1 Barb. Ch. Pr 44. 
 
 (d)E-eland-v. Stephenson, 'i5 Mich! 394; Dillon v. Frcncis, Dick. 68; 
 French v. Dear, 5 Ves. 547; Ktrkley v. Burton, 5 Mad. 378; Cary v. 
 Hatch, 2 Edw. Ch. R. 190; Patridge v. Jackson, 2 Edw. Ch. R. 520; Story's 
 V.q. PL § 47: Boach v. Hulings, 5 Cranch, C. C. 637. 
 
 (c) Eveland v. Stephenson, 45 Mich. 394; Dwight v. Humphreys, 3 McLean, 
 104. 
 
BILLS IN CHANCERY. 35 
 
 Signing of Bills — Swearing to the Bill. 
 
 Tlie 24tb rule of practice for the courts of equity of the 
 United States, provides, that "every bill shall contain the 
 s'gnature of counsel annexed to it, which shall be considered 
 as an affirmation on his part, that upon the instructions given 
 to him, and the case laid before him, there is good ground for 
 the suit in the manner in which it is framed." 
 
 The great object of this rule is to secure regularity, rele- 
 vancy and decency in the allegations of the bill, and the 
 responsibility and guaraiity of counsel, that he regards the 
 bill as being properly filed. Hence it is that counsel are held 
 responsible for the contents of the bill; and, if it contains 
 matter which is irrelevant, impertinent or scandalous, such 
 matter may be expunged, and the counsel may be ordered to 
 pay costs to the party aggrieved, (a) 
 
 The requirement that a bill in equity must be signed by 
 counsel is obsolete in Michigan, where all solicitors are coun- 
 selors, and a bill signed by solicitor is not demurrable for 
 for want of counsel's signature. (5) 
 
 SECTION XIV. • 
 
 SWEAEING TO THE BILL. 
 
 There is no rule in Michigan (e) or IllinoiSj requiring bills 
 in cases of general equity cognizance to be sworn to. If a 
 bill seeks a discovery of deeds or writings, and prays relief, 
 founded thereon, and the relief so prayed be such as might be 
 obtained at law, if the deeds or writings were in the custody 
 of the complainant he must annex to his bill an affidavit that 
 that they are not in his custody or power, and that he knows 
 not where they are, unless they are in the hands of the defend- 
 ant, otherwise the bill will be demurrable, {d) But if the relief 
 
 (a) Story's Eq. PI. § 47; Coop. Eq. PI. 18, 19; Gift. For. Rom. 210, 211; 
 Emerson v. Dallison, 1 Ch. 194; McConnel v. HoUobush, 11 III. 61. 
 
 (6) Henry v. Gregory, 29 Mich. 68. 
 
 (c) Moore v. Cheeseman, 23 Mich. 332; Atwater v. Kinman, Har. Ch, 
 243; BoUnson v. Baugh, 31 Mich. 290. 
 
 ((?) Story's Eq. PI. §§ 477,478,288,311; Coop. Eq. PI. 125; Lookers. 
 
86 BILLS IN CHANCERY. 
 
 Swearingf to the Bill. 
 
 sought extends merely to the discovery of the instrument, or 
 is otherwise such as can only be given in a court of equity, 
 such an aflBdavit is not necessary, {a) 
 
 The general rule is that where the bill seeks an injunction 
 it should be verified by affidavit. But where the bill is filed 
 as a mere pleading, praying no preliminary relief, but only 
 seeking an injunction at the hearing, it need not be sworn 
 to. (J) It will not suffice to swear to the material facts upon 
 information and belief. They should be positively sworn to. (c) 
 And where, upon an ix parte application for an interloc- 
 utory injunction, the complainant states the facts on which 
 his equities rest upon information and belief, he should pre- 
 sent affidavits of their truth from the persons of whom his 
 knowledge is obtained, and who can swear positively to the 
 facts, {d) An exception, however, is recognized in the case of 
 an injunction in aid of a creditor's bill against the judgment 
 debtor alone, no third parties being joined as defendants, and 
 in such case it is sufficient if the complainant swears upon 
 information and belief as to the recovery of the judgment and 
 return of execution nullahona. (e) Chancery rule 8 provides 
 that " the oath administered to the party shall be, in substance, 
 that he has Bead the bill, answer, or petition, 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 on his information or belief, and as to those 
 
 Roll, 3 Ves, 4; R-yves v. Ryves, 3 Ves. 343; and, see Russell v. Clarke, etc. 
 7 Cranch, 69, 89; 1 Story's K«|. Jur. § 71 ; Rootham v. Dawson, 3 Anst. 859; 
 Whitchurch v. Golding, 2 P. Wms. 541 ; Humphreys v. Humphreys, 3 P. 
 Wma. 395; Hook v, Dorman, 1 Sim. & Stu. 227. 
 
 (a) Lord Red. Tr. PI. 112, 113; 1 Mad. Ch. Pr. 26, 7, 197; Whitchurch y. 
 Golding, 2 P. Wms. 541. 
 
 (6) High on Iiij. § 984-987; Robinson v. Baugh, 31 Mich. 290. 
 
 (c) Campbell v. Morrison, 7 Paige, Ch. R. 157; RebouVs Heirs v. Beh- 
 rens, 5 La. An. 79; Cuflett v. McDonald, 13 La. An. 44. 
 
 (d) High on Inj. §984; Campbell v. ilfornson, 7 Paige, Ch. R. 157; Sank 
 of Orleans v. Skinner, 9 Paige, Ch. R. 305; Youngblood v. Schamp, 2 Mc- 
 Cart. 42. 
 
 (e) HamersUy v. Wickof, 8 Paige, Ch. R. 72; Sizer v. Sizer, 9 Paige, 
 Ch. R. 605; High on Inj. § 984-986. 
 
BILLS IN CHANCERY. 
 
 Swearinsr to the Bill — Parties to Bills. 
 
 matters he believes it to be true; and the substance of the 
 oath shall be stated in the jurat." Sworn bills may be verified 
 by the oath of the complainant, or in case of his absence from 
 the state, or for other sufficient cause, shown by the oath of 
 his agent, attorney or solicitor. Where the verification is by 
 agent who is not also solicitor, the jurat should describe the 
 person verifying as agent; but where verification is by solicitor, 
 the court will take notice of that fact from the records and 
 proceedings in the cause, {a) 
 
 SECTION XV. 
 
 PARTIES TO BILLS. 
 
 It can not be expected that in a condensed work of this kind, 
 the important consideration as to who are proper and necessary 
 parties to a bill can meet with an extended examination. This 
 is a subject of great practical importance, and of no inconsid- 
 erable difficulty in a great variety of cases. The reader is 
 referred to Chapter 17 of Story's Equity Pleadings; 1 Dan- 
 iels' Chancery Practice, Chapter Y; and Barbour on Parties; 
 wiiere these authors have devoted a good deal of attention 
 and a large space to the subject. A brief summary of the 
 rules in relation to proper parties to proceedings in chancery 
 is, however, indispensable, and will be given. 
 
 Who should be made parties. — In chancery, all the parties 
 in interest, and whose rights maybe affected, ought to be made 
 parties to the bill; and if the court is called upon, in the ex- 
 ercise of its discretion, to dispense with the proper parties, 
 some reason therefor ought to be disclosed in the bill. (5) 
 
 («) Rule 7; Berffh v. Poupard, Wal. Ch. 5. 
 
 (6) Norris v. Hard, Walk. Chan. 102: Sui/dam v. Dequindre, Har. Ch. 
 ?Al;Beachy. White, Walk. Ch. 495; WescoU\. Minnesota Mining Co., 
 23 Mich. 145; Wheeler v. Clinton Canal Bank, Har. Ch. 449; Ingersoll 
 V. Kirhy, Wal. Ch. 65; Bengeley v. Wheeler, 45 Mich. 493; Gilham v. 
 Cairns, Breese, 164; Scott v. Moore, 3 Scam. 306; Martin v. Dryden, 1 
 Gilni. 187; Spear v. Campbell, 4 Scam. 424; Whitney v. Mayo, 15 111. 
 
38 BILLS IN CHANCERY. 
 
 Parties to Bills — Who should be made Parties. 
 
 Courts will take notiee of the omission of proper defendants 
 in the bill, though no demurrer be interposed, when it is 
 manifest that the decree will have the effect of depriving 
 them of their legal rights.(a) If the answer tp a bill dis- 
 closes an interest in a third person in the subject-matter of 
 the suit, he should be made a defendant in the bill, that he 
 may have an opportunity of defending his interests, which 
 might otherwise be effected without aJiearing. (5) There are 
 some exceptions to the general rule that all persons interested 
 in the subject-matter in the suit should be made parties; but 
 one general rule, however, governs all these exceptions, and 
 that is, " that as the object of the rule is to accomplish the 
 purpose of justice between all of the parties, and as it is a rule 
 founded in some sort upon public convenience and policy, 
 rather than upon positive principles of municipal or general 
 jurisprudence, courts of equity will not suffer it to be applied 
 so as to defeat the very purpose of justice, if they can dispose 
 of the merits of the case before them without prejudice to the 
 rights or interests of other persons who are not partidfe; or if 
 the circumstances of the case render the application of the 
 rule impracticable, and if the persons thus interested are 
 unknown to the complainant, or are exceedingly numerous, 
 they need not be made parties." (c.) 
 
 251; Prentice v. Kimball, 19 III. 320; HonreY. Harris, 11 111. 24; Smith v. 
 Sotan, 44 111. 506; Hassett v. RidgeUy. 49 111. 197; Harris v. Carter, 3 
 Stewart, 233: Mechanics'' Bank v. Seton, 1 Pet. 299; Stori/ V\ Livingston, 
 13 Pet. 359; Hussey v. DoU, 24 Maine, 20: McConnell v. McConnell, 11 
 Vt. 290; Crocker v. Higgins, 7 Conn. 342; New London Bank v. Lee, 11 
 Conn. 112; Hawley v. Cramer, 4 Conn, 717; Oliver v. Palmer, 11 Gill & J. 
 436; Parky. Ballentine, 6 Blackf . 223; Strong v. Downing, 34 Ind. 300; 
 Hickenbotham v. Blackledge, 54 111. 316; see, also, Hunton v. Piatt, 11 
 Mich. 264; Burpee v. Smith, Wal. Ch. 327. 
 
 (a) 21 Mich. 524; Herrington v. Hubbard, 1 Scam. 569; Bohan v. Gal- 
 loway, 13 111. 15; Prentice V. Kimball, 19 111. 320. 
 
 (6) Herrington v. Hubbard, 1 Scam . 569. 
 
 (c) Willis V. Henderson,^ Scam. 13; Webster v. Prench, 11 III. 254; 
 West V. Randall, 2 Mason, 181; Whitney v. Mayo, 15 111. 252; Robinson 
 V. Smith, 3 Paige, Ch. R. 222; Smith v. Rotan, 44 111. 506. 
 
BILLS IN CHANCERY. 39 
 
 Parties— How Described— Persons under Disability— Interest of Parties. 
 
 A person interested in the subject-matter of a stiit in equity, 
 refusing to join with the complainant, may be made a defend- 
 ant, though his interest is with the complainant, {a) And it 
 it appear to the court that a person who may be interested 
 disclaims all interest in the controversey, he need not be made 
 a party, {b) 
 
 Hovj described. — Parties to suits in chancery should be 
 described by their proper names, if known; if their names are 
 unknown, they must be made parties in the manner proscribed 
 by statute. Where a bill to foreclose a mortgage given by 
 Alexander Eaton, Jr. to O. P. Eamsdell, was filed by Orrin P. 
 Eamsdell against Alexander Eaton, and the bill was in usual 
 form, but contained no direct averment that the parties to the 
 suit were identical with the parties to the mortgage, it was 
 held sufficient on ^o confesso, as the question of identity 
 would have been open to proof if disputed, (c) Parties may 
 be made to a bill under an averment that they have, or pre- 
 tend to have, title to land; and if the charge in the bill is un- 
 true, by disclaiming, they may obtain costs. Such parties, if 
 there is no equitable ground of relief shown against tbein, 
 should demur separately, not join in a general demurrer, {d) 
 
 Persons under disability. -^Snits in char -'^'y may be com- 
 menced and prosecuted by infants, either by guardian or next 
 friend, and by conservators on behalf of the persons they rep- 
 resent. The suit must be in the name of the minor by 
 his next friend of guardian, (e) 
 
 Interest of parties. — The bill must show that the complain- 
 
 (a) Wales v. Newlould, 9 Mich. 59 ; . Smith v. Sackett, 5 Gilm. 534,. 
 Whitnet/ v- Mayo, 15 111. 252; Coiitee v. Damson, 2 Bland, 264; Pogson v. 
 Owen, 3 Desau. 31; Cook v. lladley, Cooke, 465; Morse v. Hovey, 9 Paige, 
 Ch. R. 197. 
 
 (6) Johnson v. Rankin, 3 Bibb, 86. 
 
 (c) Kirkham v. Justice, 17 111. 107; Ramsdell v. Raton, 12 Mich. 117. 
 
 {d) Huntony. Plati, 11 Mich. 264; Finch v. Martin, 19 III. 105. 
 
 (e) Hoare v. Harris, 11 111. 24j Holmes v. Field, 11 111. 431; Stewart v 
 Howe, 17 111. 71. 
 
40 BrLLS IN CHANCERY. 
 
 Parties to Bills — Joinder of Parties. 
 
 ant Iras an interest in the subject-matter in the suit; (a) a, 
 mere contingent, or possible interest, or probability of fail- 
 ure title, is insufficient, (b) It must also be shown that 
 the defendant has an interest, and is liable to answer to the 
 complainant therefor, (e) Parties having conflicting interests 
 in the subject of litigation should not be joined as complain- 
 ants in the suit, {d ) 
 
 The statement showing the rights of the complainant, by 
 whom and in what manner he is injured, or in what he wants the 
 assistance of the court, and a prayer for relief suitable to his 
 ease, and for that purpose that the process of the court may 
 issue to bring the defendants before it, form the substance 
 and essence of every bill; and must not, by any means, be 
 omitted, (e) 
 
 Joinder of parties. — Where a tax is sought to be levied 
 without authority, several property owners, having a com- 
 mon interest in the subject, and asking relief against the same 
 injury, on the same ground, may join in a bill to restrain its 
 collection. (/" ) Several separate owners of distinct property 
 interests, that are alike affected may join as complainants, 
 w^ithout the attorney-general, in a bill to enjoin the carrying 
 onof a business in the vicinity. of their dwellings in such a 
 manneras to create a nuisance, where the grievance stated has 
 
 (a) Barstow v. Smith, Wal. Ch. 394; Mcore v. Mandlebaum, 8 Mich. 
 433; Cummings v. Freer, 26 Mich. 128: Hammontree v. Lott, 40 Mich. 
 190; Mitf. Eq. PI. 156-7; Smith v. Hollenbeck, 46 111. 252; Kerry. Watts, 
 6 Wheat, 550; Mansfield y.Hoagland, 46 111. 359; see Smith v. Hollenbeck, 
 51 111. 223. 
 
 (b) Reid v. Vanderhei/den, 5 Conn. 719; Austin v. Richardson, ,1 
 Gratt. 310; Reeves v. Adams, 2 Dev. Ch. 192; Barbour v. Whitlock, 4 
 Monr. 180; Mitf. Eq. PI. 127; 1 Barb. Ch. Pr. 39. 
 ' (c) Atfy-Gen. v. Whorwood, 1 Ves. Sr. 534. 
 
 (d) Grant v. Van Schoonhoven, 9 Paige, Ch. R. 255. 
 
 (e) 1 Barb. Ch. Pr. 39; 1 Dan. 412; see Elder v. Jones, 85 111. 884j 
 Wilson V. Egleston, 27 Mich. 257; Torrent v. Rogers, 39 Ibid, 85. 
 
 (/) Sehofieldv. Citi/ of Lansing, 17 Mich. 437; Harward v. St. Clair 
 Drain Co., 51 111. 130; Mt. Carbon C. <& R. Co. v. Blanchard, 54111.240; 
 Conwell V. Watkins, 71 111. 488. 
 
BILLS IN CHANCERY. 41 
 
 Parties to Bills — Want of Proper Parties, Misjoinder, etc. 
 
 one source, and operates in the same general manner against 
 all. {a) 
 
 Wantofproper/parties, misjoinder, etc. — Where the want 
 of proper parties, or a misjoinder, appears upon the face of 
 the bill, advantage of it may be taken by demurrer or motion 
 to dismiss, and this is the proper practice ; where the want of 
 parties does not so appear, a plea or answer setting up the 
 fact is proper. (5) The want of necessary parties is not, how- 
 ever, a ground for dismissal in the first instance ; but if the 
 complainant neglects or refuses to make the necessary parties, 
 after objection made, the bill will be dismissed, (c) without 
 prejudice, {d) If the objection is not taken until the hearing, 
 the court may order the case to stand over, on terms, witii 
 liberty to the complainant to amend, by adding such new 
 parties as may seem to be necessary ; (e) but it can not be 
 urged at the hearing, unless it is manifest that a decree can 
 not be made without bringing other parties before the court. 
 {f) If neither party raises the objection, it is competent for 
 the court to go on and settle the rights of the parties before it, 
 without prejudice to those who are not parties, {g) 
 
 (a) Robinson v. Baugh, 31 Mich. 291; Wales v. Neubold, 9 Mich. 58; 
 Hunton v. Piatt, 11 Mich. 265. 
 
 (6) Payne v. Avery, 21 Mich. 538; Prentice v. Kimiall, 19 111. 320; Spear 
 V. Campbell, i Scam. 424 ; Scott v. Bennett, 1 Gilm. 646 ; Story v. Living- 
 ston, 13 Pet. 359 : Marston v. Humplireys, 24 Maine, 513 ; De la Vergne 
 V. Everston, 1 Paige, Ch. R. 181; Chipman v. Thompson, Walker, Gh. R. 
 405; but see Bughee v. Sargent, 23 Maine, 269. 
 
 (c) Singleton v. Gale, 8 Porter, 270 ; Knapp v. Marshall, 26 111. 63 ; 
 Thomas v. Adams, 30 111. 37. 
 
 (d) Mims v. Mims, 3 J. J. Marsh. 103 ; Rowland v. Gorman, 1 J. J. 
 Marsh. 76 ; Barry v. Rogers, 2- Bibb, 304; Wallace v. Hauley, 4 J. J. 
 Marsh. 622. 
 
 (e) Welch v. Hooper, 20 Maine, 159 ; Nash v. Smith, 6 Conn. 421 ; 
 Miller v. McCan, 7 Paige, Ch. R. 451 ; McLaughlin v. VanKeuren, 21 N 
 J. Eq. R. 379. 
 
 (/) Reed v. Wessell, 7 Mich. 139; Cannon v. Norton, 14 Vt. 178 ; see 
 Woods V. Scott, Id. 518 ; La Grange &c. R. R. Co. v. Rainey, 7 Colw. 
 Tenn. 420 ; De la Vergne v. Everton, 1 Paige, Ch. R. 181. 
 
 (g) Lorillard v. Coster, 5 Paige, Ch. E. 172. 
 
42 BILLS IN CHANCBEY. 
 
 Ancient Bills — Form of an Ancient Bill. 
 
 If a party instead of demurring to a bill where the want of 
 parties, or a misjoinder appears upon the face of it, reserves 
 the "privilege of making the objection at the hearing, the 
 court will, at that stage of the case overrule the objection, 
 imless the nature of the case be such that justice can not be 
 done upon the evidence and pleadings as then j)resen ted. (a) 
 
 SECTION XVI. 
 
 AlSfOIKNT BILLS. 
 
 It may be profitable here to give the form of an ancient 
 bill, taken from the proceedings of the Eecord Commission. 
 Barton, in his history of a suit in equity, (5) gives the form ; 
 and speaking of it, says, it was filed An the reign of Henry 
 Y, to compel a defendant to surrender a messuage which was 
 the inheritance of the plaintiff, Katharine. It will be per- 
 ceived in how small a compass the whole is contained, and 
 yet how completely it takes in the equity of the case. 
 
 JVo. 2. Form of an Ancient Bill. 
 
 To the Eeverend Father in God, the Bishop of "Winchester, 
 
 Chancellor of England : 
 
 Beseecheth humbly your poor orator, John Bell, of Calis, 
 soldier, and Katharine, his wife, that whereas William Atte 
 Wode, otherwise called William Atte Downe, of Kocliester, 
 father of said Katharine, since dead, heretofore was seised in 
 his demesne as of fee of one messuage with the appurtenances- 
 in Eochester, situated in the churchyard there — the which 
 William, in the feast of St. Michael, in the twenty-second 
 year of the reign of King Richard II, since the conquest, let 
 to farm to one Simon Stelhard, of Gillingham, the same mes- 
 suagewith the appurtenances, for term of seven years then 
 next ensuing, for a certain sum to him annually to be paid ; 
 the wliich Simon, within the first two years, was ousted by 
 the executors of the said William, because he would not attorn 
 to them in payment of the rent of the said messuage — the 
 
 (a) Paijne v. Avery, 21 Mich. 524. 
 (6) Barton's Suit in Eq. 39 note (1). 
 
BILLS IN CHANCERY. 43 
 
 Ancient Bills — Form of an Ancient Bill. 
 
 which messuage was since then several times alienated to 
 divers persons, and now so it is, very gracious Lord, that one 
 Piers Savao;e, now occupier of the same messuage, for which 
 he hath not paid more than mark, liath oftentimes been re- 
 quired to deliver the same to the said John and Katharine, 
 as the heritage of the same Katharine ; and he hath not de- 
 livered the same, nor yet will, but detains it in destruction of 
 their poor estate and perpetual disherison of the same Katha- 
 rine, if they shoitld not obtain a remedy by your gracious 
 aid in this behalf ; and the which John and Katharine are so 
 poor, and the said John so ill, that they cannot pursue the 
 common law. Please your very gracious Lordship to consider 
 the premises, and thereupon to grant a writ to the said Piers 
 to appear before you at a certain day upon a certain pain, by 
 you to be limited, to answer of the matter aforesaid, and to do 
 right, as good conscience demandeth it, and this for the love 
 of God, and in the work of charity. 
 
 ThefoUowinggeneral account of these ancient bills is taken 
 from Spence's History of Equitable Jurisdiction, Yol. 1, p. 367. 
 
 "The plaintiff in his bill simply detailed the facts. It was 
 not necessary that the bill should use any particular phrase- 
 ology, or that it should define or describe the cause of suit in 
 any set or definite terms, as in a declaration at law; it was 
 not founded on any regula jxiris ; it frequently sought relief 
 against some rule of law. All that the plaintiff had to show 
 was, that his was a case which ought to be entertained under 
 the powers gi%'en by the general delegation. The bills almost 
 universally pray a suhpmna; sometimes a writ of habeas cor- 
 pus cum eausa, or writ of ceriiorari alone; sometimes for 
 subpmna as well as one or the other of those writs; in some 
 instances a sergeaiit-at-arms, to bring up the defendant, is 
 prayed for; sometimes an injunction. Some of the bills pray 
 for the surety, for the peace as well as other relief; many of 
 the bills simply ask for relief generally. In some instances 
 the bill consists of intei-rogatories, upon which it prays the 
 defendant may be examined. The bills always conclude in 
 terms of supplication, as 'for the reverence of God and tor 
 work of charity;' the plaintiff sometimes adding, 'and Jie 
 shall ever pray for you ; ' ' and your petitioner shall ever pray,' 
 
44 BILLS IN CHANCERY. 
 
 Form of an Ancient BilL 
 
 etc., is still appended to every petition to the chancellor. In 
 ancient times the suhpmna was not issued unless the case 
 ■ stated in the bill was considered to warrant it, and the chan- 
 cellor sometimes took the advice of some of the judges on the 
 subject. Sometimes a letter was first written by the chan- 
 cellor, urging the defendant to do justice to the plaintiff, (a) 
 
 (a) Barton's Suit in Eq. 39, Note 1. 
 
FORMS OF A>f ORKilNAL BILL. 45 
 
 The Address — The Introduction. 
 
 CHAPTETl lY. 
 
 FORMS OF THE CONSTITUENT PAETS OF AN ORIGINAL BILL. 
 I. THE ADDEESS. {o) 
 
 1. In the Circuit Court of the United States. 
 
 To the jndjres of the Circuit Court of the United States, for 
 the District of : 
 
 2. In Michigan. 
 
 To the Circuit Court for the County of , in Chan- 
 cery. (5) 
 
 II. THE INTEODUCTION. (c) 
 
 3. Sy a complainant under no disabilities. 
 
 Your orator, A B, of the county of , respectfully re- 
 presents unto tlie court that, etc. : 
 
 4. By an unmarried, woman. 
 
 Your oratrix, C D, of the county of , respectfully re- 
 presents unto tlie court that, etc. : 
 
 .5. By a married woman against her husband, or other 
 
 person. 
 
 Your oratrix, C D, wife of D D, of the county of , 
 
 respectfully represents unto the court that, etc. : 
 
 (a) See ante, page 13. 
 
 (6) Chancery Rule 4. 
 
 (c) See ante chap. 3, section 4. 
 
46 FORMS OP AN ORIGINAL BILL. 
 
 The Premises or Stating Part. 
 
 6. By husband and wife. 
 
 Tour orator ' and oratrix, A B, and C E, his wife, of the 
 
 county of , respectfully represent unto the court that, 
 
 etc. 
 
 7. By an infant hy his father and next friend. 
 
 Your orator, A B, of the county of , an infant under 
 
 the age of twenty-one years, to-wit, of the age of years, 
 
 by E B, of the same county, his father and next friend, re- 
 spectfully represents unto the court that, etc. 
 
 8. By an infant iy his guardian. 
 
 Your orator, A B, of the county of , an infant under 
 
 the age of twenty-one, to witj of the age of years, by 
 
 E F, of the sanne county, hisguardian, respectfully represents 
 unto the court that, etc. 
 
 9. By a corporation. 
 
 Your orator, the Companj', a corporation duly estab- 
 lished by the laws of the State of , respectfully represents 
 
 imto the court that, etc. 
 
 10. In the Circuit Court of the United States. 
 
 A B, of ■'-=-==', and a citizen of the State of , brings 
 
 this, his bill, against CD, of , and a citizen of the State 
 
 of , and E F, of — . — , and a citizen of the State of ; 
 
 and, thereupon, your orator complains and says that, etc. (a) 
 
 III. THE PREMISES OE STATING PAET. (5) 
 
 11. That, etc. {Here insert all the facts and circumstances 
 of the complainant'' s case, and of the wrong or grievance 
 complained of and conclude stating part as follows:) And 
 your orator well hoped that no disputes would liave arisen 
 touching the said, etc. etc. {stating the sulject-matter); but 
 
 (a) Rule 20 of the Rules of Practice for the Courts of Equity of the U. S., 
 adopted 1870. 
 (6) See ante, page 15. 
 
FORMS OF AN ORIGINAL BILL. 47 
 
 Confederating Part — Charging Part — Jurisdictional Clause. 
 
 that the defendant would have complied with the reasonable 
 request of yonr orator, as in conscience and equity he ought 
 to have done. 
 
 IV. THE CONFEDEEATING PART. 
 
 {This pa/rt, as we home seen, may he omitted at the option 
 of the pleader.) (a) 
 
 12. But now so it is, may it please the court, that the said 
 C D, conibininn; and confederating with divers persons, {or 
 if there are several defendants, then thus: combining and 
 confederating with E F and Gr H, and with divers other 
 persons; or, the said LM'and N M, combining- and confed- 
 erating together, and with divers persons) at present unknown 
 to your orator, whose names, when discovered, your orator 
 prays he may be at liberty to insert herein with apt words to 
 charge them as parties defendant hereto, and contriving how 
 to wrong and injure your orator in the premises, he, the said 
 D, absolutely refuses to comply with such request, and he 
 at times pretends that, etc. {Here follows the statement of 
 the defendant's supposed ground on which he avoids tJie 
 plaintiff's claim, and this should be matter disproved or 
 traversed in the charging part of the hill.) 
 
 V. CHARGING PART. 
 
 {This part of the Mil may also le omitted at the pleader's 
 option.) {a) ' 
 
 13. That the defendant sometimes alleges and pretends 
 {stating the supposed ground of the defendant), and at other 
 times he alleges and pretends, etc.; whereas, your orator 
 charges the contrary thereof to be the truth, and that {stating 
 the special matter uith which the plaintiff meets the defend- 
 ant's supposed case.) 
 
 VI. JURISDICTIONAL CLAUSE. 
 
 ( This clause ma,y le omitted as unnecessary.) (5) 
 
 14. All which actings, doings, and pretenses of the defend- 
 ant {or defehdants) are contrary to equity and good conscience, 
 and tend to manifest wrong, injury and oppression of your or- 
 
 (a) See ante, page 27. 
 (6) See ante, page 28. 
 
48 FORMS OF AN ORIGINAL BILL. 
 
 Interrogating' Part — Prayer for Relief^Prayer of Process. 
 
 ator in the premises. In consideration wliereof,and inasmuch 
 as yonr orator is entirely remediless in the premises, accord- 
 ing to the strict rules of the common law, and can only have 
 relief in a court of' equity, where matters of this nature are 
 properly cognizably and relievable. To the end, therefore, etc. 
 
 Ttl. INTEEEOGATING PAET. 
 
 ( In ma/ivy cases this part is unnecessary.) (a) 
 
 15. To the end, therefore, that the said C D, and the rest 
 of the confederates, when discovered, may, upon their several 
 and respective corporal oaths, full, true, direct and perfect an- 
 swers make to all and singular the matters hereinbefore stated 
 and charged (or ^o all and simfiilar the premises, or, to all 
 and singular the charges and matters aforesaid), a.s fnWy 
 and particularly as if the same were hereinafter repeated,' and 
 they thereunto distinctly interrogated (or asfulVy in every re- 
 spect as if the same were here again repeated, and they there 
 unto pan'ticularly, interrogated); *and that not only as to tlie 
 best of their respective knowledge and remembrance, but also 
 as to the best of their several and respective information, hear- 
 say and belief (or, according to the best of their ^respective 
 knowledge, information, and belief); and more especially, 
 that they may answer and set forth: 
 
 1. Whether, etc. (Here follow interrogatories, to be an- 
 swered by the defendant.) 
 
 2. Whether, etc. 
 
 Vlir. PEAYEE FOE BELIEF. 
 
 16. (After the interir0gating part.) And that the d.6fend- 
 ant may come to a fair and just account, etc. (Here state the 
 particular relief ashed); and that your orator may have such 
 further and other relief in the premises as the nature of his 
 case shall require, and to the court shall seem meet. 
 
 IX. PEAYEE OP PEOCESS. 
 
 17, Prayer for svhpmna. 
 
 May it please the court to grant unto your orator the writ 
 of subpoena, to be directed to the said D, and the rest of 
 
 (o) See ante, page 29. 
 
 (*) The balance from the ^tar is usually omitted in Michigan. ; 
 
FORMS OF AN ORIGINAL BILL. 49 
 
 Prayer of Process. 
 
 the confederates when discovered, thereby commanding them, 
 and every of them, at a certain day and under a certain pen- 
 alty, therein to be specified {or, therein to he inserted), per- 
 sonally to be and appear before this honorable court, and then 
 and there to answer all and singular the premises, and to stand 
 to, perform and abide such order and decree therein, as to the 
 court shall seem meet. 
 
 18. Prayer for injunction, (a) 
 
 {After the prayer for subpoena, as in the last form, add the 
 following) : 
 
 And may it please the court to grant unto your orator the 
 people's writ of injunction, to be directed to' the said C D, 
 restraining him, etc. {Here insert the matter sought to he 
 enjoined), until the further order of said court. 
 
 19. Oath to hill or petition. 
 
 State of Michigan, i 
 County of \ ^^• 
 
 On this day of , A. D. 188—, before me person- 
 ally came the above named A B, and made oatli, that she has 
 read (or heard read), the foregoing Bill of Complaint by lier 
 subscribed, and knows the contents thereof, and that the sairie 
 is true of her own knowledge, except as to the matters therein 
 stated to be on information and belief, and as to those matters 
 she believes it to be true. (5) 
 
 C D, Notary Public, Co., Mich. 
 
 (a) See ante, page 33. 
 (6) Chancery Rule 8. 
 
 4 
 
50 PROCESS FOR APPEARANCE. 
 
 Subpoena. 
 
 CHAPTEE Y. 
 
 PROCESS FOK APPEAEAKCE, 
 
 Section 1. 
 
 SuBPffiNA. 
 
 2. 
 
 Service and Rbtukn. 
 
 3. 
 
 Notice by Publication. 
 
 4. 
 
 Serviok by copy op Okdek. 
 
 5. 
 
 Summons. 
 
 6. 
 
 Attachment. 
 
 7. 
 
 Attachment with proclamation. 
 
 8. 
 
 Co.MMissioN op Rebellion. 
 
 9. 
 
 Sergeant at Arms. 
 
 10. 
 
 Sequestration. 
 
 
 SECTION I. 
 
 
 STJBPCENA. 
 
 Upon filing the bill of complaint in the office of the regis- 
 ter in chancery, a chancery snbpcena signed by the register, 
 issues, under the seal of the court, tested and dated of the day 
 of issue, and which must be made returnable on a day cer- 
 tain (except Sunda}'), either in vacation or in term, not less 
 than ten dfiys from the issuing thereof; and if process is not 
 executed before the return day, new process may be taken out 
 of course, as often as may be necessary, or an alias, or pluries 
 may be issued, {a) 
 
 It is necessary that the names of all the defendants in the 
 cause be inserted in the subpoena. (5) The Supreme Court of 
 
 (rt) Chancery Rule 9; see Comp. L. 1871, Sees. 1559, amended 1875, p. 
 192; 1881, p. 252; 1988, 5075-8, 5682; Anderson v. Birce, 3 Mich. 280; 
 Peeky. Casell, 16 Mich. 9; Fisher v. Ki/le, 27 Mich. 454; Hemmens v. 
 Bentley, 32 Mich. 89; Torrans v. mcks, 82 Mich. 307. 
 
 (6) Chancery Rule 10 ; Richardson v. Thompson, 41 111. 202. 
 
PROCESS FOR APPEARANCE. 51 
 
 Subpoena. 
 
 Michigan has, by statute, (a) power to prescribe, from time to 
 time, the form of all process to be issued out of the circuit 
 courts in chancery, and accordingly at a session of the Su- 
 preme Court, held April 22, 1879, the following rule was 
 adopted, to stand as Chancery Eule 122 : 
 
 Rule 122. To remove the danger of mistake among de- 
 fendants ignorant of the meaning of the command of a 
 subpoena, it shall be necessary after January 1, 1880, and be 
 permitted and recommended until then, that tlie body of the 
 subpoena, instead of requiring personal appearance under a 
 pecuniary penalty, shall contain a notice of tlie filing of the 
 bill, and of the time when appearance may be entered on 
 penalty of default ; and there shall be underwritten a notice 
 designating against what defendants a personal decree is 
 asked. 
 
 Such snbpcena shall be in substantial compliance with the 
 form hereto appended. 
 
 Printed forms must be clearly and legibly printed on dur- 
 able paper, and such subpoena and nnderwriting must be on a 
 page of full letter size, and the heading and place of indorse- 
 ments deep enough not to be obscured by enrollment. 
 
 JVo. 3. Form of Chancery Siibpoena. 
 
 State op Michigan, ) • 
 
 The Circuit Court for the County of > ss. '. 
 
 in Chancery. ) i 
 
 SUBPCENA. 
 
 In the Name of the People of the State of Michigan : To 
 C D, etc. Greeting : 
 
 You are hereby notified that a Bill of Complaint has been 
 
 filed against you in the Circuit Court for the County of 
 
 in Chancery, by A B, as Complainant — , and that if yon de- 
 sire to defend the same you are required to have your appear- 
 ance entered with the Register of said court at his office, in 
 the ■■ of in person or by solicitor, within twenty 
 
 (a) Gomp L. 1871, § 5075. 
 
52 PROCESS FOR APPEARANCE. 
 
 Service and Return of Sub,: oena. 
 
 daysaftej- the day of -—in the year 18—, 
 
 which is the return day of this writ. Hereof fail not under 
 the penalty of having said bill taken as confessed against 
 you. 
 
 "Witness, The Hon. E F, Circuit Judge, at this 
 
 day of ^ in the year of our Lord one thousand 
 
 eight hundred and 
 
 Begister. 
 
 Deputy Regiiiter. 
 
 Underwriting : A personal decree is sought against the de- 
 fendants C D, etc., and the, bill is filed to reach interests in 
 property, and not to obtain any further relief against the re- 
 mainder of the Defendants. 
 
 Solicitor for Com2ylainant. 
 
 The subpoena is the first process, and it is irregular to have 
 an injunction or ne-exeat issued and served before the issue 
 of subpoena, [a) But when a party appears and answers, all 
 objections to tlie regularity of proceedings to bring him into 
 court, must be considered as waived, {h) 
 
 SECTTON II. 
 
 SEEVICE AND EETURN OF SUBPCENA. 
 
 The service of a chancery subpoena, may be made anywhere 
 within the State, on or before the return day. It may be 
 served by the sheriff of any county or by any other person, 
 and it is served "by delivering a copy of the writ, subscribed 
 by the complainant, iiis solicitor, or the ofi^cer or person 
 serving the same, and inscribed 'copy,' and showing the 
 original, under the seal of the Court, at the time of such de- 
 livery to the defendant."' (c) Service had out of the State 
 
 (a)Har. Ch. 29 ; Parker v. Williams, 4 Paige, 439 ; Attorney-Oeneralv. 
 Nichol, 16 Ves. 388. 
 
 (i) Stone v. Welling, 14 Mich. 514. 
 
 (c) Conip. L. 1871, §§ 5076; 5077 ; Chancery Rule 10. As to service, see 
 Comp. L. 1871, §§ 1559, amended Laws 187 >, p. 192; L ws 1881, p, 5 ; 
 198S, 5682, 5078. Anderson v. Birce, 3 Mich, 280 ; Peck v. Casell, 16 , 
 Mich. 9; Fisher v. Ki/le, 27 Mich. 554; Hemmeiis v. Benthj, 32 Mich. 89; 
 Torrans v. Hicks, 32 Mich. 307; Soule v. Hough, 45 Mich. 422. 
 
PROCESS FOR APPEARANCE. 53 
 
 Service and Return of Siibpcena — Return. 
 
 is irregular, (a) but service upon the keeper of a prison where 
 the defendant is confined is sufficient. (5) The copy of the 
 subpoena, must not vary tro;u tlie original, or the service 
 will be set aside as irregular, (c) Service can not be made 
 upon Sunday, or upon a legal holiday, {d) 
 
 lieturn. — In all cases the return of service should inform 
 the court that lawful service has been made, (e) It should 
 show the time when, the place where, upon whom and how 
 the service was made. (/") A sherifi's return must name his 
 county, and it must show service in that county, {g) The 
 service must be made strictly in accordance with the statute, 
 and so shown, or the court will not have jurisdiction of the 
 person, unless appearance is entered by him in the case, (A) and 
 if the service is insufficient to confer jurisdiction, the decree, 
 when defendant has not appeared, may be questioned in a col- 
 lateral proceeding, {i) for it is a nullity. 
 
 It was held in an early Michigan case, {j) that where the 
 statute required service by reading to defendant and deliver- 
 ing to him a copy, a return, " served the within by reading 
 personally," conferred no jurisdiction. In Illinois, where the 
 first chancery process is a summons, and where the statute 
 requires the delivery of a copy as an essential part of the 
 service, a return reading " this writ personally served by de- 
 
 (a) Pratt v. Bank of Windsor, Har. Ch. 254; Dunn v. Dunn, 4 Paige, 
 425. 
 
 (6) Johnson v. Johnson, "Walk. Ch. 309 ; Joyce v. Joyce, 1 Hogan R 
 121. 
 
 (c) Gould V. Tryon, Walk. Ch. 339 ; 1 Edw. Ch. 631. 
 
 (d) Anderson v. Bh'ce, 3 Mich. 280, and citations, note (6). 
 
 (e) Town v. Tabor, 34 Mich. 262. 
 
 {■f) Ball V. ShaUack, 16 111. 299; Wilson v. Greathouse, 1 Scam. 174, 176; 
 Bellingall v. Gear, 3 Scam. 575; Miller v. Handy, 40 111. 448. 
 
 [g] Clark v. Lichtenherg, 33 Mich. 307. 
 
 [h) Campau y. Fairbanks, 1 Mich. 152; Cost v. Bose, 17 111. 276; Boyland 
 f. Boyland, 18 111. 551; Miller v. Mills, 29 111. 431; Fisher \. Fisher 54 
 111. 231. 
 
 (i) Smalley v. Lighthall, 37 Mich. 350; Botsford v. O'Conner, 57 III. 72; 
 Hocklander t. Hochlander, 73 111. 618; see McNab v. Young, 81 lU. 11. 
 
 (j) Campau v. Fairbanks, 1 Mich. 151. 
 
54 PROCESS FOR APPEARANCE. 
 
 Service aad Return of Subpoena. 
 
 livering copies of the same to the witliin named defendants," 
 has been held to be sufficient, (a) But a return of service, 
 "on the within named defendants," not giving the name, 
 there being two defendants named in the summons, is insuffi- 
 cient, (b) 
 
 Where service is by summons, parol evidence will not be 
 heard to prove or to aid it. It is otherwise when it is by 
 publication, (c) 
 
 If the return of the officer does not show the date of the 
 service, but the decree recites " that the defendants were duly 
 served," such recital was held to cure the defect in the re- 
 turn, {d) 
 
 No. 4. Form of Officer'' s Return. 
 
 State of Michigan, | 
 County of , ) ' 
 
 I hereby certify and return, That on etc., I served the 
 witliin subposua personally on C D, etc., by delivering to said 
 defendant , at ■, in said county, a true copy of the with- 
 in subpoena, inscribed " copy," and subscribed , com- 
 plainant's solicitor; and at the same time I showed said 
 C D, defendant, the original subpoena, with the seal of the court 
 impressed thereon. 
 
 Dated this day of , 188 . 
 
 My fees ; Service, % .' 
 
 Travel, . 
 
 Copies . Total,! . Sheriff. 
 
 Where service is made by other than the sheriff, or his 
 deputy, within his county, proof of service must be made by 
 affidavit, attached to the writ, and filed with the register of 
 the court. The affidavit should be substantially as follows: 
 
 ■ (o) Barnes v. Hazelton, 50 111. 429; Greenman v. Harvey, 53 111. 386; 
 Martin v. Hargarden, 46 111. 322; Hedges v. Mace, 72 111, 472. 
 
 (6) Richardson v. Thompson, 41 111. 202; Whitman v. Fisher, 74 111. 
 147. 
 
 (c) Botsford V. O'Conner, 57 111. 72. 
 
 (d) Kivard v. Gardner, 39 111. 125. 
 
PROCESS FOR APPEARANCE, 55 
 
 Notice by Publication — Essentials of the Affidavit. 
 
 No. 5. Form, of Affidamt of Seroioe. 
 
 State of Michigan, ) ^^ 
 
 County of , j 
 
 A B being dnly sworn, deposes and says that he resides in 
 
 the of county and State aforesaid, and that on 
 
 the day of A. D. 188-, he served the within sub- 
 
 pcena personally on C D, by delivering to said defendant, at 
 , in said county, a true copy of the within subpcena, in- 
 scribed " copy," and subscribed , complainant's solicitor; 
 
 and at the same time he showed said defendant the original 
 subpcena, with the seal of the court impressed thereon; and 
 farther deponent says'not. 
 
 Subscribed and sworn to before me, ) 
 this day of , A. D. 188». } 
 
 SECTION III. 
 
 NOTICE BY PUBLICATION. 
 
 AB. 
 
 CD. 
 
 Notary Public. 
 "— Co., Mich. 
 
 It is provided by statute («) that " after the filing of a bill, 
 the Circuit Judge, or Circuit Court Commissioner shall make 
 an order for the appearance of a defendant, at a future day 
 therein to be specified, as hereinafter directed in the following 
 cases." 
 
 First. When the defendant resides out of this State, npon 
 proof by affidavit of that fact. 
 
 Second. When the defendant is a resident of this .State, 
 upon proof by affidavit that the process for his appearance has 
 been duly issued, and that the same could not be served by 
 reason of his absence from, or concealment within this State, 
 or by reason of his continued absence from his place of resi- 
 dence. 
 
 Essentials of the affidavit. — The affidavit which is required 
 (a) Comp. L. §§ 511*), 5132, 5927; Chancery rule 16 and notes. 
 
66 PROCESS FOE APPEARANCE. 
 
 Notice by Publication. 
 
 by the statute, and upon which the order for appearance is 
 based, should be carefully prepared, and should clearly state 
 the fact of the non-residence or otherwise of the defendant, and 
 the grounds upon which the order of appearance is asked. 
 Both the affidavit, and the order, as well as the proof of publi- 
 cation that must be filed in the case, must strictly conform to 
 all the statutory requirements. The affidavit is an essential 
 prerequisite to an order for appearance, and the recital of an 
 affidavit in the order is not evidence that such an affidavit 
 was made. («) 
 
 It has been held that where the defendant is brought in by 
 publication, the question of the validity of the chancery sub- 
 poena, which was issued and returned not served, is not in- 
 volved, where the order of publication is based upon sufficient 
 showing by affidavit; and the fact that the subpoena was pre- 
 maturely returned is unimportant, (b) The case referred to 
 was a foreclosure suit, and the defendant was proceeded against 
 as a resident upon whom service could not be made by reason 
 of his absence from the State. The affidavit was made by the 
 complainants' solicitor upon his own knowledge that the de- 
 fendant was a resident of the county, but had been absent 
 some four months and it stated that the subpoena could not 
 be served by reason of defendant's absence from the State. 
 The court held that this showing was sufficient to warrant an 
 order of publication without any attempt being made to serve 
 the subpoena. 
 
 The better practice is to have process regularly issued, held 
 until the return day by the officer, and due diligence shown 
 by his retui'n in endeavoring to secure service. And in the 
 case of Soule v. Hough, 45 Mich. 420, it has recently been held 
 by the Supreme Court of Michigan, that "the process must be 
 issued and diligent eiforts made to serve it during its entire 
 time of service, and there must be a responsible showing why 
 it was not served." Judge Cooi.ey dissented. See in this 
 connection the case of Pettiford v. Zoelener, 45 Mich. 358. 
 
 (a) Piatt V. Stewart, 10 Mich. 260. 
 (6) Torrans v. Hicks, 32 Mich. .S09. 
 
PROCESS FOR APPEARANCE. 
 
 Notice by Publication — ^The Order of Appearance. 
 
 The object of the affidavit is to establish a foundation for 
 the order of appearance, and it is sufficient if it tends to estab- 
 lish such a foundation and to satisfy the judgment of the of- 
 ficer granting the order, {a) His decision can not be set aside 
 in a collateral proceeding. In a divorce case, the affidavit is 
 ample, if the wife swears positively that her husband does not 
 reside in this State, but in a specified foreign locality.(5) 
 
 The order of appearance. — The statute provides that "the 
 order shall require the defendant to appear and answer as fol- 
 lows: (o) 
 
 " First. — If a resident of this State in not less than three 
 months." 
 
 " Second. — If a resident of some other of the United States, 
 or one of the territories thereof, or of the British Provinces 
 of ISTorth America, in not less than four months." ' 
 
 " Third. — If a resident of any other State or country not 
 before mentioned, or if he has departed from his last known 
 place of residence and his residence can not be ascertained, in 
 not less than five months from the date of making such 
 order." 
 
 Within twenty days after the order is made it must be 
 published in some newspaper printed in the county, or in 
 such other paper as the court may direct, once in each week 
 for six weeks in succession. But such publication is not 
 necessary, in any case, in which a copy of the order shall have 
 been served upon such absent, concealed or non-resident de- 
 fendant, personally, at least twenty days previous to the tinie 
 prescribed for his appearance, (d) The court, when necessary, 
 may by a further order, extend the time for the appearance of 
 the defendant, and in that case it will direct the publication 
 of such further order for so long a time as it shall think 
 jiroper. (e) 
 
 (a) Pettiford v. Zoellner, 45 Mich. 358. 
 
 (fc) Ibid. 
 
 (c) Laws of 1881, p. 47. 
 
 (t?) Comp. L. 1871, § 5118. 
 
 (e) Comp. L. 1871, § 5119; Chancery Rale 16. 
 
58 PROCESS FOB APPEARANCE. 
 
 • ' ■ 
 
 Notice by Publication— Publication and Proof of Same. 
 
 Publioatiofi and proof of same. — The publication stands 
 in lieu of personal summons, {a) and where there is no per- 
 sonal service, the publication of notice is necessary to enable 
 the court to obtain jurisdiction; and no judgment is valid 
 without it. It has always been required in special proceedings 
 against parties not served or appearing, that the substituted 
 service shall be strictly regular under the statutes, (h) 
 
 JVo. 6. AffidamtfoT order of appearance — non-residence of 
 deferiaant — stating jgiace of residence. 
 
 State of Michigan. 
 
 The Circuit Court for the County of 
 
 In Chancery. 
 
 AB, 
 
 Complainant, 
 
 ■y. 
 
 C D and E F, 
 
 Defendants; 
 
 County, ss, 
 
 A B, the above named complainant, being duly sworn, deposes 
 and says, that E F, one of the above named defendants, is 
 not a resident of this State, but resides in, etc. (inserting the 
 place of residence.) A B. 
 
 Subscribed and sworn to before me, ) 
 
 tliis day of A. D. 18 j 
 
 GH, 
 Notary Public County, Michigan. 
 
 No. 7. Affidavit for puhlication — non-residence of defend- 
 ants — 'placs of residence not hnown. 
 
 State the venue and title of cause, as in above form.) 
 A B, the above named complainant, on oath states that the 
 aboue named defendants, C D and E F are not residents of 
 tliis State; affiant further states tliat lie has made diligent 
 inquiry to learn their place of residence, and has been unable 
 to ascertain the same. A B. 
 
 Subscribed, etc. 
 
 (o) Thompson v. Thomas, 11 Mich. 274. 
 
 (6) King v. Harrington, 14 Mich. 533; See Brown v. Phillips, 40 Mich. 
 264; Soule v. Hough, 45 Mich. 420. 
 
PROCESS FOR APPEARANCE. 
 
 Notice by Publication. 
 
 N^o. 8. Affidavit for piMication — that the defendant can not 
 
 be found. 
 
 [State the venue and title of cause, as in No. 6 , above.) 
 A B, the above-named complainant, on oath states that he 
 has made due inquiry to learn the place of residence of the 
 said defendants, D and E F, and is nnable to ascertain the 
 same. Affiant further states that the last known place of 
 
 residence of the said defendants was in , in this State 
 
 which place they left about years ago, since which time 
 
 this aflfiant has been unable to obtain any information as to 
 their residence, although he has made inquiries of the former 
 neighbors and acquaintances of the said defendants, and of 
 such of their known relatives as would be likely to be know- 
 ing to their plaee of residence. ' A B. 
 
 Subscribed, etc. 
 
 No. 9. Affidavit for ^publication — that the defendant is con- 
 cealed within this State. 
 
 {State the venue and title of cause, as in No. 6, ante.) 
 A B, the above-named complainant, on oath states that the 
 
 above-named defendant, C D, resides in in this State; 
 
 and that he is concealed within this State, so that process can 
 rot be served upon him. Affiant further states that, etc. 
 {Here state the circumstances which induce a belief that the 
 defendant is concealed.) A B. 
 
 Subscribed, etc. 
 
 No. 10. Order of appearance, or ^publication. 
 
 State of Michigan. 
 
 Judicial Circuit. — In Chancery. 
 
 AB, 
 
 Complainant, 
 vs. 
 C D and E F, 
 
 Defendants. 
 
 Suit pending in the Circuit 
 Court for the Couuty of 
 
 . In Chancery, at 
 
 -, on the day 
 
 of , A. D. 188- 
 
 In this cause, it appearing from affidavit ou file, that the de- 
 fendant E F is not a resident of this State, but is a resident of 
 . On motion of complainant's solicitor, it is or- 
 dered that the appearance of said non-resident defendant, E F, 
 
 be entered herein, within months from the date of this 
 
 order; and in case of his appearance he cause his answer to the 
 bill of complaint to be filed, and a copy thereof to be served 
 
60 • PROCESS FOR APPEARANCE. 
 
 Notice by Publication. 
 
 on the complainant's solicitor, within twenty days after ser- 
 vice on him of a copy of said bill and notice of this order; and 
 in default thereof, said bill will be taken as confessed by said 
 non-resident defendant. And it is further ordered, that with- 
 in twenty days the complainant cause a notice of this order to 
 
 be published in the , a newspaper printed, published 
 
 and circulating in said county, and that said publication be 
 continued therein, once in each week, for six weeks in succes- 
 sion, or that he cause a copy of this order to be personally 
 served on said non-resident defendant at least twenty days be- 
 fore the lime above prescribed for his appearance. 
 
 MX, 
 Circuit Court Commissioner, 
 
 Co., Mich. 
 
 K L, . (or Circuit Judge.) 
 
 Complainant's Solicitor. 
 
 The following order is briefer, and at the same time it seems 
 to contain all that the statute and rules of practice require, 
 while the printer's bill will be less: 
 
 No. 11. Short form order < of publication. 
 
 State of Michigan. 
 
 — Judicial Circuit, in Chancery. Suit pending in Circuit 
 
 Court for county of , in Chancery, at on the 
 
 day of , A. D. 188 . A B, complainant, v. C T> and 
 
 E F, defendants. In this cause it appearing that defend- 
 ant E F is a resident of this State, but his whereabouts are 
 
 unknown, therefore, on motion of — ■ , solicitor 
 
 for complainant, it is ordered, that defendant enter his appear- 
 ance in said cause on or before months from the date of 
 
 this order, and that within twenty days the complainant cause 
 
 this order to be published in the , said 
 
 publication to be continued once in each week for six weeks 
 in succession. 
 
 Circuit Judge, 
 (or Circuit Court Commissioner.) 
 
 Solicitor for Compl't. 
 
 The affidavit of publication must state positively the fact 
 of publication. The affidavit should be made by the printer 
 or publisher of the newspaper in which the order has been 
 
PROCESS FOR APPEARANCE. 61 
 
 Service by Copy of Order of Appearance. 
 
 published, or by some person employed in the ofiSce of the 
 paper, who can swear positively to the fact of publication, of 
 his employment on the paper, and that the facts stated are of 
 his own knowledge, {a) 
 
 SECTION IV. 
 
 SEEVICE BY COPY OF OEDBE OF APPEAEANCE. 
 
 As previously stated, the statute provides that an order of 
 appearance need not be published, provided the complainant 
 shall serve or cause to be served upon such absent, concealed 
 or non-resident defendant, at least twenty days previous to 
 the time prescribed for his appearance, a copy of the order, {b) 
 The correctness of the copy should be certified to by the 
 Eegister of the court. The service of a copy of the order is 
 proved by the affidavit of the party making the service in sub- 
 stantially the following form: 
 
 No. 12. Proof of service of order .of appearance. 
 
 {State title of cause and -oenv;e, as in No. 6.) — I, j' 
 being duly sworn, deposes and says that he resides in 
 
 the town of , County of , and State of Michigan; 
 
 that he knows the above-named defendant, and that upon — 
 
 the day of , A.D. 188 , he served a true and certi- 
 fied copy of an order, of which the annexed is also a true and 
 certified copy, upon the said defendant by delivering the same 
 
 to him personally, at the of , County of , 
 
 in said State. 
 
 IJ. 
 
 Subscribed, etc. 
 
 Decrees rendered under service of an order of appearance, 
 are said to be only binding in this State, or on residents 
 thereof, (c) 
 
 (a) PetHford v. Zoellner, 45 Mich. 358; Brown v. Phillips, 40 Mich. 
 264. 
 
 (6) Comp. L. 1871, § 5118. 
 
 (c) Bishop v. Withered, 9 Wal. U. S. R. 814; W. N. Tel Co. v. P.c^A. 
 Tel. Co. 49 111. 94; Cooley on Const. Lim. 403. 
 
62 PROCESS FOR APPEARANCE. 
 
 Summons — Attachment. 
 
 SECTION V. 
 
 SUMMONS. 
 
 It is provided by Chancery Rule 70, that " when a matter 
 is referred to a commissioner to examine and report thereon, on 
 bringing the decree or order into his office, he shall assign a 
 day and place for hearing the parties, and to give to the party 
 bringing in such decree or order, a summons for the adverse 
 party to attend at the day and place so appointed. The sum- 
 mons shall be served on the adverse party or his solicitor, such 
 time, previous to the day appointed for hearing, as the com- 
 missioner may deem reasonable and direct, taking into con- 
 sideration the nature of the matter to be examined, and the 
 residence of the parties. Bat the time of service, unless oth- 
 erwise ordered by the court, shall not be less than two days 
 when the solicitor of the adverse party resides in the city or 
 town where the hearing is to take place; and not less than 
 four days when he resides elsewhere, not exceeding fifty miles 
 from the place of hearing; not less than six days, if over iifty 
 and not exceeding one hundrfed miles; and not less than eight 
 days when he resides more than one hundred miles from tlie 
 place of hearing." The summons should state the time fixed 
 for service, and must be signed. The original must be shown 
 when service is made, or the service will be void, and the re- 
 turn on the summons should show the manner in which it was 
 served, {a) 
 
 SECTION VI. 
 
 ATTACHMENT. 
 
 Chancery Rule 12 states that " when the subpffina has been 
 personally served, and the defendants shall fail to appear and 
 plead, answer or demur, within the time limited for the same, 
 
 (o) Whipple V. Stewart, Walk. Ch. '357; Howard v. Palmer, Walk. 
 Ch. 391; Whipple v. Brown; Ear. Ch. 436. 
 
PROCESS FOR APPEARANCE. 63 
 
 Attachment. 
 
 the complainant may, upon filing an affidavit that a discov- 
 ery (1) as to the matters charged in the bill is necessary, and 
 service thereof with notice, move the conrt for an attachment 
 against such defendant or defendants. 
 
 " If the defendant appears personally, or is brought into 
 court by the sheriff, on the return of an attachment for not 
 answering, he shall enter his appearance and ■ put in his an- 
 swer and pay the costs incurred by his contempt instanter, or 
 within such time as the court shall appoint, or be committed 
 until he complies." (a) 
 
 Where a defendant lias been personally served with sub- 
 poena or summons, or notified, he is bound to appear and 
 answer to the charges perferred against him in the bill with- 
 in the time, limited by the statute or the practice of the court, 
 or compulsory process maj' be awarded against him, for his 
 contempt in neglecting the requisitions of the sub]^oenaor 
 summons. Appearance was formerly absolutely necessary in 
 every case, before any decree could be rendered against him. 
 Where the defendant did not volnntarily obey the injunctions 
 of the writ by entering his appearance on its return, a long 
 chain of process was resorted to, ending in a sequestration of 
 his property, for the purpose of compelling an appearance. 
 There were many cases, however, in which the complainant 
 had no e^ectual remedy; as where the defendant could not be 
 served with process at all; or where, notwithstanding the com- 
 mitment of his person, and the sequestration of his property, 
 he persisted in refusing to appear and put in his answer. To 
 make the process of the court more eifectual, tliere are various 
 statutory enactments, both in England and the different 
 States of this country, providing for a decree pro confesso, 
 founded upon the statements of the complainant's bill. The 
 
 (1) NoTB. Under the Statute of Michigan allowing parties to become 
 general witnesses, a bill for discovery is no longer needed and will not lie. 
 Eiopelle v. Doellner, 26 Mich. 102; Sheldon v. Walbridge, 44 Mich. 251. 
 
 (a) Rule 13 Chancery; 1. Barb. Ch. Pr. 8S; Comp. L. 1871, § 5079. 
 
64 PROCESS FOR APPEARANCE. 
 
 Attachment — How Obtained. 
 
 process for effecting a compulsory appearance has fallen into 
 comparative disuse since the passage of these statutes (a) 
 
 The first of these processes is an attachment, which is in 
 the nature of a capias, at common law, arid is directed to the 
 sheriff, commanding him to attach or take up the person of 
 the defendant, and bring him into court. 
 
 In ordinary cases, where tlie oath of the defendant is 
 waived, the complainant will not necessarily require an 
 answer, but will seek to obtain a decree by default. But where 
 the object of the bill is to obtain a discovery, as in a credit- 
 or's bill and the like, where an answer under oath is re- 
 quisite, and the defendant fails to put in an answer, further 
 steps must be taken to procure an answer. 
 
 How obtained. — Where the subpoena is served by the com- 
 plainant or his solicitor, it would seem to be necessary to 
 show such service by affidavit, before an attachment will be 
 ordered. But where the subpoena in chancery is served by the 
 sheriff of the county, and the evidence of such service is re- 
 quired to be shown by the officer's return, an affidavit of the 
 service would be unnecessary, as the court will act upon the 
 officer's return. An affidavit showing that a discovery is 
 necessary from the defendant, as to the matters of the bill, is 
 required. (5) 
 
 Where a party is in contempt, the court will not grant an 
 application in his favor, which is not a matter of strict right, 
 until he has purged his contempt, (c) He must clear his con- 
 tempt before he can take any effectual proceedings in the cause; 
 andifhebein custody for want of an answer, he can not be lib- 
 erated therefrom before he has filed his answer, paid or ten- 
 dered the costs of his contempt, and obtained an order of his 
 discharge, {d) 
 
 (a) Barton's Suit in Eq. 83-84. 
 (6) Chancery rule 12. 
 
 (c) Johnson v. Pinnetf, 1 Paige, Ch. 646; Peltier v. Peltier, Har. Ch. 
 19; McClung v. McClung, 40 Mich. 496. 
 
 [d) 1 Barb. Ch. Pr. 88; Gold's Boot, of F,q. 136. 
 
PROCESS FOR APPEARANCE. 65 
 
 Attachment with Proclamation. 
 
 If the complainant amends his hill, he ■waives his process 
 of contempt; {a) and if lie accepts the defendant's answer, or 
 replies, or moves upon it, which, implies acceptance, he can 
 not use the process of contempt for the purpose of getting 
 costs. (5) 
 
 No. 13. Affi(J,avit to ohtain an attachment against the de- 
 fendant for not answering. 
 
 {Title of cause as in No. 6, a/nte.) A B, the above-named 
 complainant, on oath states, that a discovery is necessary in 
 this cause from the defendant, as to the matters of the said 
 bill of complaint, and the several interrogatories therein 
 contained. A B. 
 
 Subscribed, etc. 
 
 No. 14. Order for an attachment for not answering. 
 
 {Caption, with tiMe of cause.) It appearing to the 
 court, that the defendant herein was duly served with sub- 
 poena in this cause, according to the rules and practice of 
 this court, to appear, except, demur, plead or answer the com- 
 plainant's said bill of complaint; and it further appearing to the 
 court that the defendant has failed {or refused) to appear or 
 answer the said bill of complaint, as required by law; on 
 
 motion of Mr. , solicitor for the complainant, it is ordered 
 
 that an attachment be, and the same is hereby awarded against 
 the said defendant, C D, returnable forthwith. 
 
 SECTION VII. 
 
 ATTACHMENT WITH PKOOLAMATION. 
 
 If the sheriff to whom the writ of attachment is directed 
 apprehends the defendant, he is detained in custody until he 
 enters his appearance, and puts in an answer to the complain- 
 ant's bill. If the sheriff returns non est inventus, he is not 
 to be found, an additional process is awarded against the 
 
 (o) Graif V. Camphell, 1 Russ. & My. 323. 
 (6) Anon. 15 Ves. 174. 
 
 5 
 
66 PEOCESS FOR APPEARANCE. 
 
 Commission of Rebellion — Sergeant-at-anns. 
 
 defendant, which is termed an attachment with proclamation; 
 which, besides the ordinary form of attachment, directs the 
 sheriff to cause public proclamations to be made throughout 
 the county, to summons the defendant on his allegiance, per- 
 sonally to appear and answer the charges brought against 
 him. {a) 
 
 SECTION VIII. 
 
 COMMISSION OF EEBELLION. 
 
 If the writ of attachment with proclamation be returned 
 non est inventus, and the defendant still remains in contempt, 
 a commission of rebellion is awarded against him for not 
 obeying the proclamation according to his allegiance. This 
 commission is generally directed to commissioners therein 
 named, who are jointly and severally commanded to attach 
 the defendant wherever he may be found within the State. 
 The reason given for this process being directed to commis- 
 sioners, and not, like the writ of attachment to the sheriff, is, 
 " tliat the defendant is a rebel and contemner of the laws, 
 and to be dealt with as- such; and as the sheriff can not be 
 supposed to be capable of executing all the process directed 
 to him in person, it may be inconvenient to trust so great a 
 power with the deputies of his appointment, and therefore, 
 the court appoints its own commissioners, who are intrusted 
 to do everything very carefully, and are answei'able to the 
 court for their miscarriage." (i) 
 
 SECTION IX. 
 
 SERGEANT-AT-AEMS. 
 
 By the English practice, if the commission of rebellion is 
 returned 7ion est inventus, the court, on motion to that effect, 
 
 (rt) Barton's Suit in Eq. 85; 1 Barb. Ch. Pr. 62, 63; Gilb. For. Rom. 77; 
 1 Dan. Ch. Pr. 606. 
 
 (6) Gilb. For. Rom. 77; Hinde, Ch. Pr. 116; 1 Dan. Ch. 610; Barton's 
 Suit in Eq. 86, note (1); 1 Barb. Ch. Pr. 63. 
 
PROCESS FOE APPEARANCE. 67 
 
 Sequestration. 
 
 will dispatch a sergeant-at-arms in search of the defendant. 
 It is said, however, that the English course in this respect, 
 can not be pursued here, our statutes having virtually taken 
 away from the sergeant-at-arms the power of executing the 
 process of the court, (a) The sheriffs of the respective conn- 
 ties are made officers of the court to execute the process 
 thereof. 
 
 SECTION X. 
 
 SEQUESTEATION. 
 
 If the defendant is taken upon any of the processes we have 
 mentioned in this chapter, he is committed to the jail, unless 
 he enters his appearance and answers according to the prac- 
 tice of the court; and also clears his contempt, by paying of 
 the costs and fine imposed by reason of his contumacious 
 behavior. But if he likewise eludes the search of the sheriff 
 while acting as sergeant-at-arms, a sequestration issues. This, 
 like the commission of rebellion, is awarded upon motion, 
 grounded on the return of the sheriff, as sergeant-at-arms, and 
 is directed to certain commissioners therein named, authori- 
 zing and commanding them to possess themselves of all his per- 
 sonal estate whatever, and the rents and profits of his real es- 
 tate, until satisfaction is made of the complainant's demands, 
 and the court shall further order. (5) 
 
 (a) 1 Hoff. Ch. Pr. 126, note; 1 Barb. Ch. Pr. 66; Barton's Suit in Eq. 
 87. 
 
 (6) Barton's suit in Eq. 88; 1 Barb. Ch. Pr. 68-75; Hinde, Ch. Pr. 127; see 
 Morrice Y. Bank of Eng. TaXh. Cd:S. 222; Kinney v. Yardhij, Dick. 266; 
 Lupton Y. Hercolt, 1 Sim. & Stu. 274; DetiUin v. Gale, 1 Sim. & Stu. 275, 
 note. 
 
68 TAKING BILLS AS CONFESSED. 
 
 Default. 
 
 CHAPTER VI. 
 
 ; TAKING BILLS AS CONFESSED. 
 
 ; Section 1. Default. 
 
 2. Eights of Defendant after a Default. 
 
 3. Setting aside a Default. 
 
 4. Setting aside a Decree, when Defendant 
 
 is sot personally notified. 
 
 SECTION I. 
 
 default. 
 
 It is provided by statute {a) that in all cases not otherwise 
 provided for by law, bills shall be taken as confessed, and or- 
 ders and decrees may be made by default, according to such 
 rules as may be from time to time established. 
 
 The rules provide (J) that upon the return of the subpoena 
 served, as provided for in rule 10 heretofore referred to, (c) the 
 defendant shall cause his appearance to be entered in twenty 
 days from the return day of the same, and if he does not re- 
 quire a copy of the bill, he shall plead, answer or demur within 
 the same time, or in default thereof his appearance may be 
 entered by the register, and the bill of complaint taken as 
 confessed. If a copy of the bill is required, he shall answer 
 in twenty days from the service of such copy, or the bill may 
 be taken as confessed. Copies of every pleading by a defendant 
 must be served within the time limited for iiling the same. 
 
 ]Vo.l5. Order entering ajpj^earance of^ defendant, cmd for 
 copy ofoill and notice. 
 
 State or Michigan. 
 
 The Circuit Court for the county of , in Chancery. 
 
 AB, _ 1 
 
 Complainant, 
 
 va. \ 
 
 CD, I 
 
 Defendant. J 
 
 (a) Comp. L. 1871, §5080. (6) Chancery Rule 11. (c) Ante, Chap. 5, 
 
TAKING BILLS AS CONFESSED. 69 
 
 Default — Affidavit Non-appearance. 
 
 On motion of , solicitor for said de- 
 fendant, D, ordered that the appearance of said defendant 
 be and the same is hereby entered. And on like motion it is 
 further ordered, that the complainant serve upon the said 
 solicitor a cop,y of his bill of complaint, filed in this cause, 
 within fifteen days after service upon him or his solicitor of 
 a notice of this order, or in default thereof that said bill will 
 be dismissed with costs. 
 
 To 
 
 Solicitor for Complainant. 
 Please to take notice that the foregoing is a trne copy of an 
 order, tliis day entered in the above entitled cause. 
 Dated this day of 18 — 
 
 Solicitor for Defendant. 
 The foregoing order must be tiled with the register of the 
 court, and a copy with the foregoing notice served upon the 
 solicitor for the complainant. 
 
 JVo. 16. Affidavit of non-appearance. 
 
 (Title of court., cause and venue as in No. 6.) E 
 F, solicitor for the above named defendant, being duly 
 sworn, deposes and says, that the bill of complaint was tiled 
 
 in said cause upon the day of A. D. 18 — , and 
 
 that upon the same day a chancery subpoena was issued re- 
 turnable on the day of A. D. 18—, and that up- 
 on the day of A. D. 18 — , said subpoena 
 
 was personally served upon defendant, as will more fully ap- 
 ])ear,by reference to proof of service now on tile in said cause. 
 Deponent further says, that more than twenty days have 
 elapsed since tlie return day of said subpoena, and tli'at said 
 defendant has not entered his appearance in said cause, or 
 caused the same to be entered. 
 
 Subscribed, etc. E F. 
 
 Upon filing the foregoing afiidavit, and an affidavit of reg- 
 ularity, the complainant may enter an order ^ro confessoand 
 of reference to a circuit court commissioner, who will take 
 the complainant's proofs and report the same to the court 
 with his opinion thereon, {a) 
 
 [a] Eaton v. Eaton, 33 Mich. 305 ; Chancery Rule 16, and notes. 
 
70 TAKING BILLS AS CONFESSED. 
 
 Default — Affidavit on Default — Regularity — Order Pro Con. 
 
 No. 17. Affidavit on default. 
 
 (Title of court, cause atid venue as in No. 6.) E 
 F, solicitor for complainant, being duly sworn, deposes 
 
 and says, that upon tiie day of A. D. 18 — , the 
 
 above named defendant entered his appearance in said cause 
 by G H, his solicitor, and at the same time demanded a 
 copy of the bill of complaint, filed in said cause. Deponent 
 
 further says, that upon the day of A. D. 18 — , he 
 
 served a true copy of said bill of complaint upon the said G 
 H, solicitor for defendant, by delivering the same personally 
 to said G H. Deponent further says, that more than twenty 
 days have elapsed since said service of said copy of said bill 
 of complaint-as aforesaid, and said defendant has not plead, 
 answered or demurred to the same. 
 
 E F. 
 
 Subscribed, etc. 
 
 No. 18. Affidavit of regularity. 
 
 (Title of court, cause and venue as in No. 6.) E F, solic- 
 itor for tiie above named complainant, being duly sworn, de- 
 poses and says that the bill of complaint was filed in said 
 
 cause on the day of A, D. IS — for the purpose of 
 
 (here state general purpose of bill); that said bill has been 
 taken as confessed by the said defendant, and that all pro- 
 ceedings to take said bill as confessed have been regular and 
 according to the rules and practice of this court. 
 
 E F. 
 
 Subscribed, etc. 
 
 No. 19. Order pro confesso and of reference. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 AB, 
 Complainant, 
 vs. 
 C D, 
 Defendant. ' 
 
 On filing due proof of personal service of the subpoena is- 
 sued in this cause on the defendant, C D, therein, on or be- 
 fore the return day thereof, and more than twenty days hav- 
 ing elapsed since said return day, and said defendant, C D, 
 
TAKING BILLS AS CONFESSED. 
 
 Default — Commissione.s' Report. 
 
 not having appeared, on motion of E F, 8olicitor for tlie 
 complainant, it is ordered that the bill of complaint filed in 
 this cause be, and the same hereby is taken as confessed by 
 the said defendant, C D, and that it be referred to I J, Esq., 
 a circuit court commissioner, to tajje proofs of the facts and 
 circumstances stated in said bill, and that said commissioner, 
 with all convenient speed, report to this court said proofs, to- 
 gether with all other matters hereby referred to him, and bis 
 ojjinion thereon. 
 
 E_F, 
 Solicitor for Complainant. 
 
 After an order pro oonfesso, and of referencB has bean 
 made, the complainant may at once produce such proofs as 
 may be necessary before the commissioner, who takes the 
 same and reports them to the court with his opinion thereon. 
 
 The following general form, of a report of a commissioner in 
 a, pro Gonfesso divorce case, gives the general facts necessary 
 to be set out, and can bs changed to suit the particular case. 
 
 No. 20. Commissioner'' s report, pro confesso divorce. 
 
 ( Title of court and cause.) To the Circuit Court for the 
 County of Kalamazoo. In Chancery: 
 
 In pursuance of and by virtue of an order made in the 
 
 above entitled cause, and dated the day of A. D. 
 
 18 — , by which it was referred to the subsciher, one of the 
 circuit court commissioners, in and for said county, to take 
 proofs of the material facts and circumstances, stated in thj 
 bill of complaint in the cause, and to report such proofs to this 
 court, with his opinion thereon; I, the subscriber, one of the 
 
 circuit court commissioners, of said county of , do 
 
 hereby certify and report that I have taken proof in this cause 
 on the part of the complainant, and that such proofs are hereto 
 attached and form apart of this, my report. And I do fur- 
 ther certify and report, as required by the said order, that in 
 my opinion, all the material facts and circumstances charged 
 in the coraplainantfs bill in this cause are true, and thatUie 
 marriage and residence of the parties, and that the extreme 
 cruelty of the defendant to the complainant, and that the de- 
 fendant being of sufficient ability to provide a suitable main- 
 tenance for the said complainant, has grossly, wantonly and 
 cruelly neglected and refused so to do, as alleged in said bill 
 
72 TAKING BILLS AS CONFESSED. 
 
 Default— Effect of a Default. 
 
 of complaint, have been sufficiently proved before me; and 
 that such cruelty and neglect to provide, for which divorce is 
 songlit in this cause, were committed without the consent, 
 connivance, privity or procurement, of said complainant, and 
 that such bill is not founded on, or exhibited in consequence 
 of any collusion, agreement or understanding whatever, be- 
 tween the said complainant, A B, and the said defendant, 
 D, or between the complainant and any other person. 
 Dated, etc. E F, 
 
 Circuit Court Commissioner, 
 
 County, Mich. 
 
 Effect of a default. — Where adult defendants permit the 
 bill to be taken as confessed, they thereby admit the truth of 
 the allegations of the bill, and the practice fully warrants the 
 rendition of a decree granting relief, "without proof, if the bill 
 contains equity. If the court has reason to believe, or from 
 any cause is apprehensive that injustice is likely to result from 
 granting the relief without proof, then it should be required. 
 But this is a matter of sound discretion in the chancellor, and 
 its omission or requirement can not be assigned for error, un- 
 less the record discloses that the action has resulted in wrong 
 to the defendants. "Where there are non-resident defendants, 
 only served by publication, the courts are more inclined to 
 require proof than in cases where there has been actual 
 service, {a) 
 
 A default admits that which is properly alleged in the bill, 
 but nothing further. (S) A decree jpro confesso, is confined to 
 the precise limits of the case stated and made by the bill, (c) 
 No decree can be taken by a complainant where there is a de- 
 
 [a] Moore v. LHman, 33 111. 358; Sullivan v. Sullivan, 42 111. 316; 
 Croiian v. Frizell, Id. 319; Gnibb v. Crane, 4 Scam. 153; Ferguson v. 
 Sufphen, 3Grilm. 547; Manchester v. McKee, 4 Gilm. 511; Boston v. Nichols, 
 47 111. 353; Douglas v. Evans, 1 Overton, 82; Ward v. Jewett, Walker, 
 Ch. R. 45; Aiterbery y. Knox, 8 Dana, 282; Jackson v. Honeycut, 1 Over- 
 ton, 30; Piatt V. Judsnn, 3 Blackf. 235; Fellows v. Shelmire, 5 Blackf. 48; 
 Jones V. Beverly, 45 Ala. 161. 
 
 (6) Schicarz v. Sears, Walk. Ch. 19; Ward v. Jewett, Ibid, 45; Cronan 
 V. Frizell, 42 III. 319; De Leuw v. Neeley, 71 111. 473. 
 
 (c) Grisu'old v. Fuller, 33 Mich. 271; Carter v. Lewis, 29 111. 503; Mills 
 
TAKING BILLS AS CONFESSED. 73 
 
 Eight of Defendant after Default. 
 
 fault at the hearing, except such as would be aathorized by the 
 pleadings had there been no default, {a) 
 
 If the complainant, after a default, amends his bill, or files 
 a supplemental bill, it will have the effect to vacate the order 
 of default, and the defendant may put in an answer. (5) Anxl 
 an order pro confesso is practically waived in so far as it might 
 estop the defendant from maintaining a cross-bill, if the cross- 
 bill is really filed, and both cases are argued together and treated 
 as a single litigation, (o) When a bill has been taken jpro 
 confesso against a defendant, unless he has entered his appear- 
 ance, the complainant need not serve notices upon him of sub- 
 sequent proceedings, but may proceed ex parte. 
 
 A bill can not be taken as confessed as against minors, and 
 the evidence, to be preserved in the record, must warrant a 
 decree against them, (d') 
 
 SECTION II. 
 
 EIGHT OF DEFENDANT AFTER DEFAULT. 
 
 A defendant, being in court, has a right, in a case where the 
 hill is taken as confessed, to appear before the master or com- 
 missioner, in case of a reference, if he thinks proper. Or, 
 upon the report of the master being made, the defendant may. 
 
 V. Heeney, 35 111. 174; Pidgeon v. Trustees, 44 111. 501; Beese v. Becker, 
 51 111. 8 ; OwUng v. Luitgens, 32 111. 23; Ufartin v. Hargardine, 46 111. 323. 
 
 (a) Hardwich v. Basselt, 25 Mich. 149; Chancery Rule 68; Piatt v. Judson, 
 3 Blackf. 237; Fellows v. Shelmire, 5 Blackf. 48; Cunningham v. Stelle, 1 
 Litt. 52; see Thomas v. Morris, 67 111. 333. 
 
 (6) Gihson v. Reese, 50 111. 383; see Black v. Lusk, 69 111. 70. 
 
 (c) Johnson v. Van Veslor, 43 Mich. 208. 
 
 [d] Smith V. Smith, 13 Mich. 262; Thayer -v. Lane, Walk. Ch. 2 00; 
 Chandler v. McKinney, 6 Mich. 219; McClayY. Norris, 4 Gilm. 370; White 
 V. Morrison, 11 111. 365; Preston v. Hodgen, 50 111. 60; Willhite v. Pierce, 
 47 111. 413; Nichols v. Thornton, 16 111. 113; Bree v. Bree, 51 111. 372- 
 Masterson v. Wiswold, 18 111. 48; Moore v. School Tr. 19 111. 83; Quigley 
 V. Roberts, 44 111. 503; Martin v. Hargardine, 46 111. 322; Ingersoll v. In- 
 gersoll, 42 Miss. 155. 
 
74 TAKING BILLS AS CONFESSED. 
 
 Setting Aside a Default. 
 
 if he choose, file exceptions and resist its approval; and a 
 defendant who has appeared in a cause, is entitled to notice 
 of all subsequent proceedings, (a) 
 
 SECTION III. 
 
 SETTING ASIDE A DEFAULT. 
 
 A motion to set aside a default, for not filing an answer in 
 chancery, should be based upon an affidavit, setting forth 
 clearly and specifically the reasons for setting it aside, and be 
 accompanied by an answer, and an oflfer to file the same. (&) 
 
 An application to set aside a default is addressed to the 
 discretion of the court, and an appellate court rarely reviews 
 the exercise of the discretion, and then only to prevent great 
 injustice, (c) 
 
 The party making application to have a default set aside, 
 must support it by an affidavit, showing that the default was 
 taken without any fault or negligence on his part, and that 
 there is merit in his defense, stating what such defense is, so 
 that the court may see whether it is sufficient, (d) 
 
 Chancery Rule 86, is to the effect that the court may set 
 aside any order or decree obtained by default or otherwise 
 upon such terms as may be deemed just and proper. But 
 
 (a) Jenny v. O'Flynn, 5 Mich. 217; Mason v. Beynolds, 33 Mich. 60; 
 Moore v. Titman, 33 111. 358. 
 
 (6) Stockton V. Williams, Har. Ch. 241; Crraham v. Elmore, Har. Ch. 
 265; Dunn v. Keegin, 3 Scam. 292; Grubh v. Crane, 4 Scam. 153; Norton 
 V. Hixon, 25 111. 440; Smith v. Saginaw City Bank, Har. Ch. 426. 
 
 (c) Chancery Rule 86; Bowman v. Wood, 41 111. 203; Bell v. Nims, 51 
 111. 171; Scales v. Labor, 51 111. 232; see, further, Puterbaugh's Com. Law 
 PI. and Pr. 809-810, and authorities there cited; Wooster v. WoodhuU, 1 
 Johns. Ch. 539; Parker v. Grant, 1 Johns. Ch. 630; Gwin v. Harris, 1 S. 
 & M. Ch. 528; Graham v. Elmore, Harring. Ch. 265; Russell y. Waite, Id. 
 31; Hart v. Lindsay, Id. 72; Terry v. Eureka College, 70 111. 236; Brewer 
 V. Dodge, 28 Mich. 359. 
 
 (d) Bank of Mich. v-Williams, Har. Ch. 219; Thayer v. Swift, Wal. Ch. 
 384; Rich V. Hathoway, 18 111. 548; Hunt v. Wallis, 6 Paige, Ch. R. 371; 
 see Stocktony .Williams, Harring. Ch. 241; Hart v. Lindsay, yfaik. Ch. 72. 
 
TAKING BILLS AS CONFESSED. 75 
 
 Defendant Not Personally Notified. 
 
 a regular ovAev pro confesso will not be set aside on affidavit 
 of merits and excuse for default; the nature of the defense 
 must be shown by a sworn answer, or bj petition or affidavit. 
 
 Ifo. 21. Affidavit in support of motion to set aside a default. 
 
 {Title of the court and cause.) D, the above named 
 defendant, makes oath and says, that, etc. {Here state facts 
 showing the absence of negligence in not putting in an an- 
 swer in apt time.) Affiant further states, etc. {Here state 
 such facts as sJioiv a m.eritorious defense to the hill.) Affiant, 
 therefore, prays that the default heretofore entered in this 
 cause, against him, may be set aside; and that he may be 
 permitted to file his answer herewith exhibited, and wliich he 
 now oifers to file in this cause. C D. 
 
 Subscribed and sworn, etc. 
 
 SECTION IV. 
 
 SETTING ASIDE DECREE WHEN DEFENDANT IS NOT PEESONALLT 
 
 NOTIFIED. 
 
 Whenever a decree shall be rendered against an absent, 
 non-resideut or concealed defendant, who has not been person- 
 ally notified, the statute provides that " if the defendant 
 against whom such decree shall have been made, unless such 
 decree shall be a decree for divorce, or his representatives 
 shall afterward appear and petition to be heard, the party so 
 petitioning shall be admitted to answer the complainant's 
 bill, upon paying, or securing to be paid, such costs as the 
 court shall adjudge, and the suit shall then proceed in like 
 manner as if the defendant had appeared in due season, and 
 no decree had been made." Tlie right of defendant to appear 
 as above set forth is absolute, (a) The only eifect of a non- 
 resident defendant appearing and answering after decree, 
 under the statute is to vacate the decree as to them, leaving it 
 to stand as against other defendants. (5) 
 
 (a) McDonald v. McDonald, 45 Mich. 44 ; Com. Laws, 1871, § 5127 ; 
 (6) Gregg v. D. & M. E. E. Co. 10 Mich. 117; 8 Paige, 41. 
 
TAKING BILLS AS CONFESSED. 
 
 Defendant Not Personally Notified. 
 
 " Tlie defendant or his representatives, must appear witliin 
 one year after notice in writing of the decree shall have been 
 given to him or them, and within seven years after making 
 the decree, when such notice shall not have been given." (a) 
 
 " If the defendant, or his representatives, shall not so ap- 
 pear within one year after such notice given, and if not given, 
 before the expiration of seven years after making the decree, 
 the court shall then, by order, confirm the decree against the 
 defendant, and against all persons claiming under liim by 
 virtue of any act subsequent to the commencement of the 
 suit, and make such further order in the premises as shall be 
 just and reasonable." (5) 
 
 "If the bill shall have been filed to procure the foreclosure 
 or satisfaction of a mortgage, the court, instead of proceeding 
 to a sequestration in the manner iierein before directed, may 
 decree a sale of the mortgaged premises, or of such part 
 thereof as may be necessary to discharge the mortgage and 
 the costs of suit, as in other cases." (c) 
 
 "In the case mentioned in the last preceding section, if the 
 defendant at any time before the sale of the mortgaged prem^ 
 ises, shall appear and pay to the complainant such costs as 
 the court shall award, the court shall stay the sale, and the 
 same proceedings shall.be thereafter had as if the defendant 
 had been served with process and liad regularly appeared." (<f) 
 
 "No sale and conveyance regularly made under the pre- 
 ceding provisions, upon a bill for the foreclosui'e and satis- 
 faction of a mortgage, shall be affected or prejudiced by the 
 appearance of the defendant within one year, or the seven 
 years hereinafter specified, nor by any other proceedings; but 
 such defendant or his representatives may at any time within 
 seven years after the decree ordering such sale, file a bill 
 against the complainant or his representatives, to accotmt for 
 all moneys received by him or them by virtue of sucii decree 
 
 (a) C. L. 1871, § 5128 ; King v. Harrington, 14 Mich. 532. 
 
 (b) C. L. 1871, § 5129. 
 
 (c) C. L. 1871, § 5130. 
 
 (d) C. L. 1871, § 5131; Hardwicke v. Bassett, 25 Mich. 151. 
 
TAKING BILLS AS CONFESSED. 77 
 
 Defendant not Personally Notified, 
 
 over and above the amount justly due on the mortgage, and 
 costs 9f suit; and the court shall proceed on such bill accord- 
 ing to the equity of the case." (a) 
 
 In Illinois it has been held that when a petition is filed 
 under a statute of Illinois, very similar to the statute from 
 which we have quoted, that the correct practice is to let the 
 former decree stand until the final hearing, and then make 
 such decree, either setting aside the former one, and dismiss- 
 ing the bill, or confirming or modifying the decree, as the 
 equities of the case may require, (h) Such decrees are inter- 
 locutory only, (o) It would be a technical error to vacate the 
 decree, upon the filing of the petition, and before tlie final 
 hearing; {d) yet if by so doing no injury is occasioned to any 
 one, the proceedings will not be reversed and set aside for 
 that reason; (e) nor can such irregularities be attacked col- 
 leterally. (/) 
 
 No. 22. Petition to set aside decree iy a defendant net 
 personally notified. 
 
 State of Michigan, 
 The Circuit Court for the County of , In Chancery. 
 
 AB, 
 
 Complainant, 
 V . 
 CD, 
 
 Defendant. ^ 
 
 To the Circuit Court for the County of -. In Chancery. 
 
 The petitioner, C D, of, etc., the above named defendant, 
 respectfully represents unto this honorable court, that on, 
 
 (a) C. L. 1871, § 5132. 
 
 (6) Southern Bank t. Humphreys, 47 111. 227; Lawrence v. Latvrence, 73 
 lU. 577. 
 
 (c) Id.; Lyon v. Eobbins, 46 III. 276; Sale v. Fiske, 54 111. 292; Tomp- 
 kins V. Wilfberger,56 III. .385; Hodgenv. Gwttery, 58 111. 431. 
 
 (d) Buck V. Beekley, 45 III. 100; Mulford v. Stalzenback, 46 111. 303; 
 Southern Bank v. Humphreys, 47 111. 227. 
 
 (e) Mulford v. Stalzenback, 46 111. 303. 
 
 (/) Southern Bank v. Humphreys, 47 III. 227. 
 
78 TAKING BILLS AS CONFESSED. 
 
 Defendant not Personally Notified. 
 
 etc., tlie above named complainant, A B, exhibited his bill of 
 complaint against the petitioner as defendant, in this court, 
 in this suit, and on making aifidavit of the non-residence of 
 the petitioner, procured publication to be made to notify him 
 of the commencement and pendency thereof; and that on, etc., 
 
 being at the term of this honorable conrt, 2, jpro confesso 
 
 decree in said entitled suit, was rendered against the peti- 
 tioner, as by the record and proceedings in this cause will 
 more fully and at large appear. And the petitioner further 
 represents unto this court, that he has. not been served with 
 the subpoena in said cause, or been served with the order of 
 publication, and has received no notice in writing of such 
 decree. 
 
 The petitioner, therefore, appears in this honorable court, 
 and asks to be heard touching the matters of such decree, upon 
 such reasonable terms as to the court may seem just, in pur- 
 suance of the statute in such case made and provided. And 
 the petitioner presents herewith his answer to the said bill of 
 complaint, and asks that he may be permitted to file the 
 same in said cause, and that upon the hearing, the court will 
 order that said decree be set aside, altered or amended as to 
 the court may seem just; and that tlie court will grant the 
 petitioner such other relief in the premises as to equity shall 
 appertain. D. 
 
 EF, 
 Solicitor for Petitioner. 
 
 State of Michigan, , 
 
 County of- 
 
 -:!■ 
 
 On this day of — = • A. D. 18- , personally ap- 
 peared before me, a notary public in and for said county, the 
 above named petitioner, who made oath that he has heard 
 read the foregoing petition by him subscribed, and that the 
 same is true of his own knowledge, except as to the matters 
 therein stated on information and belief, and as to those mat- 
 ters he believes it to be true. 
 
 A B, 
 
 Notary Public, 
 Co., Mich. 
 
DEFENSE TO A SUIT. 
 
 Proceedings by Defendant previous to Answer. 
 
 CHAPTEE Yll. 
 
 THE DEFENSE TO A SUIT. 
 
 Section 1. Proceedings by Defendant Pbbtious to Putting in 
 HIS Answer. 
 
 2. The Different Sorts of Defense. 
 
 3. Demurrer to a Bill. 
 
 4. Pleas to a Bill. 
 
 6. Answer to a Bill. 
 6. Disclaimer. 
 
 SECTION I. 
 PROCEEDINGS BT DEFENDANT PEEVIOUS TO PUTTING IN HIS ANSWER. 
 
 After the service of a chancery snbpcena, and within twenty 
 days from the return day of the writ, the defendant must 
 cause his appearance to be entered. And if he does not re- 
 quire a copy of the bill of complaint, he shall plead, answer 
 or demur within the same time. If a copy of the bill is re- 
 quired, he shall file and serve his pleadings within twenty 
 days from the receipt of the bill of complaint. Otherwise tlie 
 bill will be taken as confessed, but the court, or a commis- 
 sioner acting as injunction master, on special cause sliown, 
 may extend the time for putting in any pleading. A copy 
 of every pleading filed by a defendant, must be served upon 
 the complainant's solicitor within the time limited for filing 
 the sfime. (a) And after a defendant has appeared in a cause, 
 it is the duty of the complainant to serve on the solicitor for 
 the defendant copies of the pleadings and proceedings, at any 
 time filed in the cause, upon the part of the complainant. (J) 
 
 (a).Chancery Rule 11; Chancery Rule 86. 
 
 (6) 0. L. 1871, §§ 5082, 5083, 5084; Jenmj v. 0, Flynn, 5 Mich. 215; 
 Munch V. Shahel, 37 Mich. 169; Mich. Ins. Co. v. Whittemore, 12 Mich 
 428. 
 
DEFENSE TO A SUIT; 
 
 Proceedings by Defendant — Exceptions to Bill. 
 
 There are instances where the first step to be taken is a 
 motion to dismiss the ease. ■ And this should be done before 
 appearance is entered. Thus, where the complainant, being a 
 non-resident, fails to give security for costs, the defendant may 
 naove to dismiss for that reason. Other cases in which motions 
 would be proper will naturally suggest themselves to the 
 reader. 
 
 Cases have arisen in which the courts have dismissed a bill 
 on motion for want of equitj', (a) but such practice is irregu- 
 lar; yet, if acted upon by the court, without objection, the 
 motion will be held to have the same effect as a demurrer, (b) 
 
 An appearance and answer by a defendant is a waiver of 
 objections to the regularity of the proceedings to bring him 
 into court, (c) But an appearance for the exclusive purpose 
 of demurring to the jurisdiction does not admit it, if the sub- 
 stantial matter of the bill is improper for the cognizance of 
 the court. 
 
 The question whether a bill shows equity on its face should be 
 raised by a demurrer to the bill, and not by motion; and on 
 objection by the complainant, a motion entered for such pur- 
 pose will be stricken from the tile, (d) 
 
 Exceptions to VUlfor scandal or impertinence. — If the bill 
 contains any scandalous or impertinent matter, the defendant 
 may, before putting in his defense, take exceptions to the bill; 
 to the end that the objectionable matter may be expunged, (e) 
 
 Exceptions to a bill for scandal or impertinence are to be 
 taken in the same manner as exceptions to an answer for in- 
 sufficiency, etc., and may be submitted to in like manner and 
 within the same time. If they are not submitted to, the 
 
 {a) Edwards v. Baird, Breese R. 70j Richardson v. Prevo, Id. 216; 
 Harris v. Galbraith, 43 111. 309. 
 
 (6) Wichley v. Thompson, 44 111. 9; Town of Tamaroa v. Normal 
 University, 54 111. 334. 
 
 (c) Stone V. Welling, 14 Mich. 514; Woodruff -7. Young. 43 Mich. 548. 
 
 (d) Town of Tamaroa v. Normal University, 54 111. 334; Wangelin v. 
 Goe, 50 111. 459. 
 
 (e) Chancery Rule 80; 1 Barb. Ch. Pr. 101; 1 Dan. Gh. Pr. 451-2; Mc- 
 Connell v. Hollobush, 11 111. 61; Langdon v. Pickering, 19 Maine, 214. 
 
DEFENSE TO A SUIT. 81 
 
 Proceedings by Defendant — Exceptions to Bill. 
 
 defendant must refer them in the same manner, or they will 
 be considered as abandoned, (a) 
 
 If the defendant designs to except to the bill, he must do 
 so before putting in his answer, or submitting to answer by 
 obtaining an order for further time; as by answering or sub- 
 mitting to answer the bill, he waives all objections to it. (J>) 
 
 The practice upon exceptions to bills for scandal or imperti- 
 nence being the same as that upon exceptions to answers, it 
 will be sufficient to refer the reader to that part of this work 
 where exceptions to answers are spoken of. (c) 
 
 ]}^o. 23. Exceptions to a hill for impertinence or scandal. 
 
 State of Michigan. 
 
 The Circuit Court for the County of In Chancery. 
 
 A B, 
 
 Complainant, 
 vs. 
 C D, 
 
 Defendant. 
 
 Exceptions taken by C D, defendant, to the bill of complaint 
 of A B, complainant, filed against him. 
 
 J^irst — For that the allegations in tiie 7th, 8th, 9th, 10th 
 and 11th lines of the 4th (page or folio) of the said bill in the 
 words following, to wit: {Ilere insert the matter ohjected to) 
 is impertinent,, and ought to be expunged. 
 
 Second — For that the allegations in the said bill commenc- 
 ing with the word "the" in the 5th line of the 8th (page or 
 folio), and ending with the wx)rd " you" in the 12th line of tiie 
 10th (page or folio) theredf, are scandalous and impertinent, 
 and should be expunged. 
 
 Third — For that, etc. {and so on.) 
 
 In all which particulars this defendant humbly insists tliat 
 the complainant's bill of complaint is irrelevant, impertinent 
 and scandalous; wherefore this defendant excepts thereto, 
 
 (a) 1 Barb. Ch. Pr. 101; Stone v. Welling, 14 Mich. 514. 
 (6) lb.; Anon. 2 Ves. Sr. 631; Woodward v. AstUy, Bund. 304; Chan- 
 cery Rule 30. 
 (c) Seejjosi, Chap. VIIl! 
 
82 DEFENSE TO A SUIT. 
 
 Proceed ngs by Defendant — Production of Papers — Security for Costs. 
 
 and prays that the impertinent and scandal of the said bill of 
 complaint, excepted to as aforesaid, may be expunged with 
 
 costs. 
 
 Solicitor for Defendant. 
 
 Motion for production of papers. — The court only orders 
 the production of books and papers previous to the final hear- 
 ing of a cause upon two principles — security pending the 
 litigation, and discovery or inspection for the purpose of the 
 suit, {a) 
 
 The court will, upon the application of the defendant, before 
 answer, under special circumstances, order that the complain- 
 ant should not compel him to answer until within a stated 
 time after the production of certain documents set forth in the 
 bill when it appears that their production is essential to enable 
 the defendant to pnt in his answer. (5) 
 
 Motion for security for costs. — We have already seen that 
 a non-resident complainant must give security for costs before 
 tiling his bill. If he fails to do so, the suit will be dismissed 
 on motion, supported by an affidavit, which must distinctly 
 negative the fact that he was a resident at the time the suit 
 was commenced. (<?) 
 
 A suit instituted by two complainants, one of whom is a 
 resident, will not be dismissed for want of a bond for costs, {d} 
 
 A motion to dismiss for want of a bond for costs must be 
 made at the earliest stage of the proceeding. It would come 
 too late after a demurrer, (e) or a plea in abatement, {f) 
 
 (a) Watts v. Lawrence, 3 Paig3, Ch. R. 159. 
 
 [h] Princess of Wales v. Earl of Liverpool, 1 Swanst. 114; 1 Barb. Ch. 
 Pr. 101; Jones-Y. Liwis, 2 Sim. & Shu. R. 242; see Cornell v. Bosfivick, 3 
 Paige, Ch. R. 160. 
 
 {c)LendbeaterY. Roth, 2om. 581; Buckland r. Goddard, 36 111. 206; 
 see, 'also, Bipley v. Morris,'^ GiVm. 381; Hickman v. Haines, 5 Gilm. 2); 
 Farnsworth v. Agneiv, 27 111. 42; Robert v. Fahs, 82 111. 474. 
 
 id) Wood V. Gosa, 24 111 626. 
 
 (e) The People v. Cloud, 50 111. 439. 
 
 (f) Randolph v. Emerick, 13 111. 344; see further. Erasure v. Zimmerly, 
 25 111. 2 ;2; Dunning v. Dunning, S! 111. 316; St. Louis, A. <0 T. H. R. B. 
 Co. V. South, 43 111. 176. 
 
DEFENSE TO A SUIT. 83 
 
 DiiFerent Soits of Defenses. 
 
 The pendency of a motion for security for costs will not 
 necessarily excuse a party for not tiling an answer; nor will 
 such motion prevent tlie rendition of a decree ^o confesso. (cc) 
 
 SECTION II. 
 
 THE DIFFEEENT SOETS OF DEFENSES. 
 
 The defense to a suit in equity may be either by demurrer, 
 by plea, by answer, or by disclaimer. 
 
 1. By demurrer, by which he appeals to the judgment of 
 the court, whether he shall be compelled to answer the bill or 
 not. Tliis species of defense 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. 
 
 2. By j)Zea, by which he shows why the suit should be dis- 
 missed, delayed or barred. A plea sets up matter of defense 
 not appearing iu the bill. 
 
 3. By ansxoer, controvercing the case stated by the complain- 
 ant, 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. 
 
 4. By a disclaimer, the defendant may at once terminate 
 the suit by disclaiming all right or interest in the matter 
 sought by the' bill. ' ' 
 
 0. By demurrer, plea, answer and disclaimer, or by two or 
 more of them, provided each relates to a separate and distinct 
 part of the bill. 
 
 A cross-bill may also be considered' a species of defense. (5) 
 The above is the general order of pleading to be pursued 
 by the defendant. All pleas of a dilatory character, and ob- 
 jections of that nature, must be interposed at the earliest op- 
 portunity, (c) 
 
 (a) Hamilton v, Dunn, 22 111. 259. 
 
 [h) Galatin v. Erwm, Hopk. Ch. R. 48, 58; 1 Barb. Ch. Pr. 105. 
 
 (c) Putertaugh's Com. Law PL and Pr. 144-145, and cases there cited; 
 
84 DEFENSE TO A SUIT. 
 
 Demurrer to a Bill — Its Nature and Uses. 
 
 SECTION III. 
 
 DEMUEEEE TO A BILL. 
 
 Its nature and uses. — "Whenever any ground of defense is 
 apparent upon the face of tlie bill, either from matters therein 
 stated, or from defects in its frame, or in the case made by it, 
 the proper mode of defense is by demurrer, (a) Tlie word de- 
 murrer comes, as Lord Coke has said, from the Latin word 
 demorari, to abide; and, therefore, he tliat demurs iu law, is 
 said to abide in law. He will go no further until the court 
 has decided whether the other party has shown favifficient 
 matter in point of law to maintain his suit. (J) 
 
 A demurrer is ip bar of tlie relief sought, and it proceeds 
 upon the ground that, admitting the fact stated in the bill to 
 be true, the complainant is not entitled to the relief he seeks. 
 It is always founded upon some strong point of law, going to 
 the absolute denial of the relief sought; but defects in sub- 
 stance are not supplied or aided by it, nor defective statements 
 of title or claims to relief cured by it. The demurrer only 
 admits that which is well stated or pleaded, and for the pur- 
 pose of that issue only, {c) It does not admit any matters of 
 law which may bo suggested in the bill, or inferred from the 
 
 Conhyy. Good, Breese, 135; Duncan v. Charles, 4 Scam. 561; Wilson v. 
 Nettleton, 12 lUi 61; Peoples v. Peoples, 19 111. 270; Gilmore v. Nowland, 
 26 111. 'M; Archibald v. Argall, 53 111. 307; James v. Morgan, 36 Comi. 
 348; Bowman v. McLnighlin, 58 Maine, 299; Green v. Craig, 47 Mo. 90; 
 Brown v. Powell, 45 Ala. 149; Johnson v. Johnson, Walk; Ch. 311. 
 
 (a) McCloskey v. McCmmich, 44 111. 336; Wangclin v. Goe, 50 111. 459; 
 Story's Ed. PI. § 441; 2 Barb. Ch. Pr. 105; Mitf. Eq. PI. 107; Beard v. 
 Fowler, 2 Bond, 13; Gallaher v. Roberts, 1 Wash. C. C. 320. 
 
 (6) Co. Litt. 71, note b; Coop. Eq. PI. 110; Black. Com. 314; Story's Eq. 
 PI. § 441; Verplank v. Caines, 1 Johns. Ch. E. 57. 
 
 (c) Cook V. D. dt M. R. Co., 45 Mich. 453; Stowe v. Russell, 86 111. 18; 
 Mills V. Broivn, 2 Scam. 549; Moore v. Hoisington, 31 III. 243; Verplank 
 V. Caines, 1 Johns. Ch. R. 57; Washington, etc. Road v. State, 19 Md. 239; 
 Netvellv. Supervisors Bur.au Co., 36 111. 253; Baker v. Booker, 6 Price; 
 381; Chotean v. Rice, 1 Minn. 106; Harr. Ch. R. 308; Barton's Suit in Eq. 
 96; 1 Dan. Ch. Pr. 601; Dunham v. HydePark, 75 III. 371; Roby v. Cossitt, 
 78 111. 638. 
 
DEFENSE TO A SUIT. 85 
 
 Demurrer to a Bill — Its Nature and Uses. 
 
 facts stated in it; nor any fact tliat is not specifically charged.(a) 
 A demurrer may be sustained on the ground of the staleness 
 of the claim set up in a bill, {b) and lapse of time sufficient to 
 create a bar under the statute of limitations unaccounted for 
 by the bill, may be taken advantage of by demurrer, (c) It 
 is otherwise if the laches ai'e accounted for by the bill, (d) 
 
 A demurrer may be to the whole bill, or to a part only of 
 tiie bill; and the defendant may, therefore, demur as to part, 
 plead as to another part, and answer as to the residue of the 
 bill. But each of these modes of defense must be actually 
 applied to different and distinct parts of the bill, and so applied 
 that each will be consistent with the other; so that one will 
 not overrule the other, (e) Thus, for example, if there is a 
 demurrer to the whole bill, an answer to a part thereof is in- 
 consistent, and the demurrer will be overruled, (f) For the 
 same reason, if there is a demurrer to a part of a bill, there 
 can not be a plea or answer to the same part without overrul- 
 ing the demurrer, (g) After answer, it is too late to demur, 
 unless the answer is first withdrawn by leave of court. (A) 
 
 It is a rule that a plea, or answer, and demurrer to the same 
 matter, can not stand together, and the plea or answer over- 
 
 (a) Stotce V. Russell, 36 111. 18; Green v. Dodge, 6 Ham. 80; Smith v. 
 Henri/, 15 Iowa, 385; Coop. Eq. PI. Ill; Williams v. Steward, 3 Meriv. 
 472, 492; Earle v. Holt, 5 Hare, 180; Baker v. Booker, 6 Price, 381; Wal- 
 ton y. Wesiu-ood, 73111. 125; Judson v. Stephens, 75 111. 225; Lebaroipy, 
 Shepherd, 21 Mich. 263. 
 
 (6) Copen v. Flesher, 1 Bond, 440. 
 
 (c) Rhode Island v. Massachusetts, 15 Pet. 223; Maxwell v. Kennedy, 
 8 How. U. S. 210; Wisner v. Barnet, 4 Wash. C. C. 631. 
 
 (d) lb. 
 
 (e) Coop. Eq. PI. 112, 113; Tidd v. CZa>-«, 2 Dick. 712; Potarlington v. 
 Soulbi/, 6 Sim. 356; Lord Red. 214; Livingston v. Story, 9 Pet. 632; Spof- 
 ford V. Manning, 6 Paige, Oh. R. 383; Pierpont v. Fowle, 2 Woodbury & 
 Minot's R. 23. * 
 
 (/) Williams V. Hubbard, Walk. Oh. 28; Brill v. Stiles, 35 111.305; 
 Davies v. Davids, 2 Keen, R. 538: Clark v. Phelps, 6 Johns. Ch. R: 214- 
 Heath v. Erie E. R. Co., 8 Blatchf. 347; Miller v. Furse, 1 Bailey's Ch r' 
 187. 
 
 [g) Story's Eq. PI. § 442; Jones v. Strafford, 3 P. Wms. R. SO; Donner 
 V. rortescue, 2 Atk. R. 282; Kuyper v. Ref. Dutch Ch. 6 Paige, Ch R 570 
 
 (h) Brill V. Stiles, 35 111. 305. 
 
86 DEFENSE TO A SUIT. 
 
 Demurrer to a Bill. 
 
 rules the demurrer, {a) Chancery Enle 41, provides that "no 
 demurrer or plea shall be held bad and overruled upon argu- 
 ment, only because such demurrer or plea shall not cover so 
 much of tlie bill as it might by law liave extended to," and it 
 is provided by rule 42, that "no demurrer or plea shall be 
 held bad, and overruled upon argument, only because the an- 
 sveer of defendant may extend to some part of the same mat- 
 ter as may be covered by such demurrer or plea." These rules, 
 it will be seen, have abolished the doctrine just stated. The 
 same rule exists in the English chancery orders of 1841, and 
 in the United States Court, {b) 
 
 If a demurrer is too general, that is, if it covers, or is 
 applied to the whole bill, when it is good to a part only; or 
 if it is a demurrer to a part only, but is not good to the full 
 extent which it covers, but is so only to a part, it will be over- 
 ruled; (c) for it is a general rule, that a demurrer can not be 
 good as to a part which it covers, and bad as to the rest; and, 
 therefore, it must stand or fall altogether, (d) If the court 
 sustains a demurrer in part, and overrules it as to the resi- 
 due, the complainant, by amending his bill, and the de- 
 fendant, by answering the amended bill, waive the irregu- 
 larit}'. («) 
 
 (a) Clarke v. Phelps, 6 Johns. Ch. R. 214; Chase's Case, 1 Bland, 206; 
 Robertson v. Bingley,, 1 M'C. Ch. 333; Snxon v. Barksdale, 4 Dessau. 522; 
 Barnes v. McGee, 1 S. & M. 208; Bank of Muskingum v. Carpenter, 
 Wright, 729. 
 
 [h] Story's Eq. PI. §443, n. 2; see Dell v. Hale, 2 Younge & Coll. New. 
 R. 1; U. S. Eq., Rule 37. 
 
 (c) Durlmg v. Hammer, 20 N. J. Eq. R. 220; Brownlee v. Lockwood, 20 
 N. J. Eq. R. 239; 3 Green's N. J. R. 270; Banta v. Moore, 2 McCarter's 
 N. J. R. 97; Hawkins v. Clement, 15 Mich. 511: Treadu-ell v. Brown, 44 N 
 H. Rep. 551; Brown v. Uogle, 30 111. 119; Blount v. Garen, 3 Hey. 83; 
 Fancher v. Ingraham, 6 Blackf. 139; Heath v. Erie R. R. Co., 8 Blatchf. 
 C. C. 347; Hoffman v. Ross, 25 Mich. 175; Williams* y. ffvhbard. Walk. 
 Ch. 28. 
 
 (d) Story's Eq. PI. §443; Metcalf v. Herveij, 1 Ves. 248; Higginbotham 
 V. Burnet, 5 Johns. Ch. 136; Todd v. Gee, 17 Ves. 273; Knight y.Moseleij, 
 Ambl. 176; Wynne v. Jackson, 1 McClell. & Younge, 35. 
 
 (e) Peck V. Burgess, Walk. Ch. 485; Marshall v. Vickshjirg, 15 Wall. 
 149. 
 
DEFENSE TJ A SUIT. 87 
 
 Demurrer to a Bill. 
 
 It was formerly the rule, that if a demurrer does not cover 
 so much of the bill, as it might by law have extended to, it 
 wonld be held bad ; (a) but this doctrine is, liowever, now 
 clianged by the orders of the English Court of Oliancei-y, {b) 
 and the rule of the Supreme Court of the United States, (c) 
 which provide, " That no demurrer or plea shall be held bad 
 and overruled upon argument, only because such demurrer or 
 plea shall not cover so much of the hill as it might by law 
 have extended to." Tiiis is also rule 41, of the Chancery 
 Sules of Michigan. 
 
 A demurrer may be put in,, and several causes assigned; 
 and if one cause is good to the whole extent of the demurrer, 
 and another is bad, the demurrer will be sustained; for if 
 both were bad, the defendant may, ore tenus, assign new 
 causes of demurrer at the argument to matters of substance, 
 although not to matters of form; so that any one good cause 
 existing of record, or otherwise assigned, will do. {d) 
 
 When there are several defendants, if they all join in one 
 demurrer to a bill, the demurrer may be good, and be sus- 
 tained, as to one of the defendants, and be bad, and overruled 
 as to the others; for the defense may be good to one person, 
 and wholly inapplicable to another, (e) 
 
 "When a bill in equity sets forth various claims to the in- 
 terposition of the court, and the defendant files a general demur- 
 rer to the whole bill, it must be overruled if any of the claims 
 afford a proper case for the jurisdiction of the court, {f) Tlie 
 
 (o) Story's Eq. PI. § 448; Dawson v. Sadler, 1 Sim. & Stu. R. 537, 542 
 (Ji) 1 Craig & Phill. R. 379. 
 
 (c) Rule 36 of Rules of Pr. C. E. of U. S. 1870. 
 
 [d) Story's Eq. PI. § 443; Barton's Suit in Eq. 96; Coop. Eq. PI. 112, 113; 
 Lord Red. 217; Jones v. Frost, Jac. 468; Clark v. Davis, Har. Ch. 227. 
 
 (c) Story's Eq. PI. § 445; Coop. Eq. PI. 113; Mayor of London- v. Levy, 
 8 Ves. R. 403, 404; Barstow v. Smith, Walk. Ch. R. 394. 
 
 (/) Brown v. Hogle, 30, 111. 119; Livingston v. Story, 9 Pet. 632; Brock- 
 tvayY.Copp, ^Vsdge, Ch.^.b^.'i-/ FancherY.Ingraham, 6 Blackf. 139; 
 Carter v. Longworth, 4 Ham. 384; Higginhotham v. Burnet, 5 Johns Ch! 
 R. 184; Holleclan v. Johnson, 2 Geo. Decis. 146; Griggs v. Thompson 1 
 Geo. Decis. 146. 
 
DEFENSE TO A SUIT. 
 
 DemuiTer to a Bill— Where a Demurrer will Lie. 
 
 proper course is to deninr to such claims as are entitled to 
 no relief, and answer the balance, {a) 
 
 Where a demurrer will lie. — If a bill shows upon its face 
 that there is a want of sufficient parties, {b) or a misjoinder 
 of parties, (c) a demurrer will lie; but it must point out who 
 are the proper parties, {d) 
 
 If the want of jurisdiction, (e) or the bar of the statute of 
 limitations, or defenses of a kindred character,(y) or the statute 
 of frauds (^) appear upon the face of the bill, it will be obnox- 
 ious to a demurrer, unless circumstances are alleged taking the 
 case ontof tliose statutes. (A) 
 
 A demurrer will also lie where the bill is multifarious; (*) 
 
 (a) Variek v. Smith. 5 Paige, Ch. R. 137. 
 
 (b) Spear V. Campbell, 4 Scam. 424; Prentice v. Kimball, 19 111. 320; 
 Lowry v. Harris, 12 Minn. 255; Walford v. Phelps, 2 J. J. Marsh. 31; 
 Mitchell Y. Lenox, 2 Paige, Ch. R. 281; Robinson v. Smith, 3 Paige, Ch. R. 
 222; Stoiy's Eq. PI. § 541; see Hand v. Dexter, 41 Geo. 454. 
 
 (c) Berger v. Potter, 32 111. 66; Christian v. Crocker, 25 Ark. 327; Melick 
 V. JlfeKcfc, 2 Green N. J. R. 156; White v. Delschneider, 1 Oregon R. 2-34. 
 
 {d) Robinson T. Smith, 3 Paige, Ch. R. 222; Dais v. Bouchaud, 10 Paige, 
 Ch. R. 445; Story's Bq. PL § 543; Lord Red, 108; Moore v. Armstrong, 9 
 Porter, 6)7; S/Miifev. Kornegay, 1 Jones' N. C. Eq. R. 40; Woodruffs. 
 Young, 43 Mich. 548; Bengley v. Wheeler, 45 Mich. 493. 
 
 (e) Smith V. Morehead, 6 Jones' N. C. Eq. 360; C. (^ N. W. R. R. Co. v. 
 Nichols, 57 111. 464; Variek v. Dodge, 9 Paige, Ch. R. 149. 
 
 (/) Eveland v. Stephenson, 45 Mich. 394; Henry Co. v. Winnebago, etc., 
 52 111. 299; Id. 52 111. 4-54; Hovenden v. Annesley, 2 Sch. & Lef. 637; Hardy 
 V. Beeves, 4 Ves. R. 479; Foster v. Hodgson, 19 Ves. R. 180; Surtser v. 
 Skiles, 3 Gilm. 529; Denny v. Oilman, 26 Maine, 149; School Trustees v. 
 Wright, 12 111. 432; Coster v. Murray, 5 Johns. Ch. R. 522; Hook v. Whit- 
 loch, 7 Paige, Ch. R. 373; Maxwell v. Kennedy, 8 How. U. S. 222; Wisner 
 V. Barnet, 4 Wash. R. R. 631. 
 
 [g) School Trustees v. Wright, 12 111. 432; Surtser v. Skiles, 3 Gilm. 529; 
 but see Lear v. Chouteau, 23111. 39; Hull v. Peer, 27 111. 312. 
 
 (70 Henry Co. v. Winnebago Drain Co., 52 111. 4-54; Story's Eq. PI. §503, 
 760, 751. 
 
 (t) Taylor v. King, 32 Mich. 42; Woodruff v. Young, 43 Mich. 548; 
 Henderson v. Cummings, 44 111. 325; Burnett v. Lester et al. 53 111. 325; 
 Wilson Y.Wilson, 23 Md. 162; Waller y. Taylor, 42 Ala. 297; Supervisors, 
 etc. Y. State's Attorney, 31 III. 68; Darling v. Hammer, 20 N. J. Eq. R. 
 220; Oliver v. Piatt. 3 How, U. S. 333; Many v. Beekman Iron Co. 9 Paige, 
 
DEFteNSE TO A SUIT. 89 
 
 Demurrer to a Bill — Where it will Lie. 
 
 or shows upon its face that the complainant has an adequate 
 remedy at law; {a) except in cases of fraud (5) and trusts; (<?) 
 in which courts of equity retain jurisdiction, notwithstanding 
 courts of law may also have jurisdiction. 
 
 A demurrer will also be sustained where the bill shows a 
 want of title or interest in the comolainant to the thing de- 
 nianded;(<^) and, where a party, having no interest in the 
 controversy, is improperly joined as a party complainant, (e) 
 and wliere the bill shows no equity on its face, (f) or is 
 brought for a part of a matter only, (g) or fails to show some 
 claim or interest in the defendant. (A) 
 
 The question whether a bill shows equity on its face should 
 be raised by demurrer, and not by motion, (i) But in some 
 
 Ch. R. 188; Liichett v. White, 10 Gill & J. R. 480; Thurman v. She.Uon, 10 
 Yerg. B83; Buffaloiov. Buffaloiv, 2 Ired. Ch. R. 113; Darcey v. Lake, 46 
 Miss. 109; Atwill V. Ferrett, 2 Blatchf. C. C. 89; Crain v. Kennedy, 85 111. 
 340; Gilmore v. Sapp, 100 111. 297; Baird v. Jackson, 98 111. 78; Rann v. 
 Rann, 90 III. 433. 
 
 (a) Wangelin v. Goe, 50 111. 459; Wylder v. Crane, .53 111. 490; The 
 People V. City of Galeshurg, 48 111. 485; Lynch v. Willard, 6 Johns. Ch. 
 R. 342; Bottorf v. Conner, 1 Blaokf. 287; Foster v. Swasey, 2 W. & M. C. 
 C. 217; Tarbell r. Bouimin, 103 Mass. 341; Scruggs v. Blair, 44 Miss. 
 406; Jevne v. Osgood, 57 III. 340; Brown v. Wabash Ry. Co. 96 111. 297; 
 Douglass v. Martin, 103 111. 25. 
 
 (6) Hubbard v. McNaughton, 4S Mich. 220; Babcock y.McCament, 53 
 III. 215; Ogden v. Larrabee, 57 111. 389; Truett v. Warnwright, 4 GrUin. 
 418; Kennedy v. Northup, 15 111. 148. 
 
 (c) Coats V. Woodworth, 13 111. 654; Norton v. Hixon, 25 III. 440. 
 
 [d] Rainere v. Rawlins, Finch, 36; Newman v. Holder, Id.; Stooke v. 
 Vincent, 1 CoUyer, 527; Stoiy's Eq. PI. § 503. 
 
 (c) barstO'V v. Smith. Walk Ch. 349; Plummer v. May, 1 Vern. 426; 
 Dineleyv. Dineley, 2 Atk. 394; HowM. Best, 5 Mad. 19; Welf Eq. PI. 282. 
 
 (/) Thayer Y. Lane, Har. Ch. 247; Hawkins ^ . Clermont, \h Mich. 
 511; Williams v. Hubbard, Walk. Ch. 28; Edwards v. Hurlburt, Walk. 
 Ch. 54; Burpee t. Smith, Walk. Ch. 327; Hoffman v. i?o«s, 25 Mich. 175; 
 President, etc. v. S. III. N. Uni. 54 III. 334; Calhoun v. Powell, 42 Ala.' 
 645; Winkler v. Winkler, 40 111. 179; Harris v. Galbraith, 43 111. 309; 
 Moore v. j4 rmstrong, 9 Porter, 697. 
 
 (,9) Hinde, Ch. Pr. 157; Lord Red. 16; Story's Eq. PI. § 287. 
 
 (h) Wych V. JifeaZ, 3 P. Wras. R. 311; Stewart v. East Inr'ia Co. 2 
 Vern. 380; Attorney-general v. Bradford Canal Co. 2 Eq. Cas Abr. 78. 
 
 (») Townof Tamoroav. Trustees, etc. Hl'd. 33i; Winkler y. Winkler, 
 
93 DEFENSE TO A SUIT. 
 
 Demurrer to a Bill — General Demurrer — Special Demurrer. 
 
 cases where no objections were interposed as to manner of 
 raising the objection, the bill has been dismissed upon mo- 
 tion, (a) But if the complainant objects to the raising of the 
 question in that manner, the motion will not be entertained, 
 and if filed will be stricken off. If no objections are inter- 
 posed the motion is treated the same as a demurrer. (5) 
 
 Where a defendant demurs to a bill on the ground it pre- 
 sents no case for the interposition of a court of equity, but 
 declines to answer, even upon being ruled to answer, he will 
 not be held as having waived his objection there was a want 
 of jurisdiction, (c) 
 
 Demurrers are either general or special. • 
 
 General demurrer. — Demurrers are general when no partic- 
 ular cause is assigned, except the usual formulary that there 
 is no equity in the bill, {d) 
 
 Special demurrer. — Demurrers are special, when the par- 
 ticul r defects or objections to a bill are pointed out. A 
 special demurrer is indispensable, where the objection is to 
 the defects of the bill in point of form, {e) The objections 
 pointed out should not be argumentative, but must be set 
 down with reasonable certainty and directness. (/") 
 
 40 111. 179; Harris v. Galbmith, 43 111. 309; Brill v. Stiles, 35 HI. 305; 
 Calhoun v. Powell, 42 Ala. 645; Moore v. Armstrong, 9 Porter, 697; 
 Clark V. Davis, Har. Ch. 227; That/ery. Lane, Har. Ch. 247; Woodward 
 V. Clark, 15 Mich. 104; Hawkins v. Clermont, 15 Mich. 511; Hoffman v. 
 Ross, 25 Mich. 175. 
 
 (rt) Thomas, etc. v. Adams, 30 111. 37; Edwards v. Beaird, Breese, 70; 
 Fishery. Stone, 3 Scam. 68; Greathouse v. Kipp, Id. 371; State Bank v. 
 Stanton, 2 Gilm. 352; Puterbaugh v. Elliott, 22 111. 157. 
 
 (6) Gaye v. Griffin, 103 111. 41. 
 
 (c) Town of Tamaroa y. Trustees, etc. 54 111. 334; Vieley v. Thomp- 
 son, 44 111. 9. 
 
 {d) Barton's Suit in Eq. 107, 108; Story's Eq. PI. § 455; Harrington v. 
 McLean, 1 Phillip's N. C. Eq. 258. 
 
 (c) McCloskey v. McCormick, 44 111. 336; Pogue v. Clark, 25 111. 351; 
 McElwain v. Willis, 3 Paige, Ch. R. 505; Forbes v. Whitlock, 3 Edw. 
 Ch. B. 446; Nash v. Smith, 6 Conn. R. 421; Marsh v. Marsh, 1 Green, N. 
 J. 391. 
 
 (/) Story's Eq. PL § 455; Barton's Suit in Eq. 97; Mitf. Eq. PI. 213, 214. 
 
DEFENSE '10 A SUIT. 91 
 
 Demurrer — Causes of Demurrer— Separate D^mirrer — Spaafcing. Demurrer. 
 
 "Where a defendant, to a bill praying relief, demurs to the 
 discovery only, he can not do so under a general demurrer for 
 want of equity, but must make it a subject of special 
 demurrer, {a) 
 
 Several causes of demurrer. — A defendant is not limited 
 to show one cause of demurrer only. He may assign as many 
 causes as he pleases, either to the whole bill, or to each part 
 of the bill demurred to; and if any one of the causes assigned 
 holds good, the demurrer will be allowed. (5) 
 
 Separate demurrers.-. — A defendant may alsoput in separate 
 demurrers to separate and distinct parts of a bill, for separate 
 and distinct causes; (c) 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 such a case one 
 demurrer may be overruled, upon argument, another al- 
 lowed, {d) 
 
 Speaking demurrer. — Care must be taken, in framing a 
 demurrer, that it be made to rely only upon the facts stated 
 in the bill; otherwise it will be what is termed a speaking 
 demurrer, and will be overruled, (e) A speaking demurrer is 
 one which introduces some new fact or averment which is 
 necessary to support the demurrer, and which does not dis- 
 tinctly appear upon the face of the bill, [f) 
 
 Demurrer ore tenus. — Where a demurrer is^ put into the 
 
 (a) Whittingham v. Burgoyne, 3 Anst. 900 ; 1 Barb. Ch. Pr. 107. 
 (6) 1 Barb. Ch. Pr. 107; Harrison v. Hogg, 2 Ves. Jr. 323; Junes v. 
 Frost, 3 Mad. 1. 
 
 (c) Mitf. Eq. PI. 174; 1 Barb. Ch. Pr. 107; North v. Earl of Strafford, 
 3 P. Wms. 148; Edberdean v. Rous, 1 Atk. 544. 
 
 (d) 1 Barb. Ch. Pr. 107; North v. Earl of Strafford, 8 P. Wms. 148. 
 
 (c) Brownsivord v. Edwards, 2 Ves. 245; .Tallmadge v. Lovett, 3 Edw. 
 Ch. 5i>3; Lamb v. Starr, 1 Deady, 350. 
 
 (/) 1 Barb. Ch. Pr. 107; Brooles v. Gibbons, 4 Paig-e, Ch. R. 374; Davies 
 V. WiUams, FSim. 5; Cawthorn v. Chnlie,_ 2 Sim. & Stu. 127; Kuypers v. 
 Dutch Eef. Ch. "6 Paige, Ch. R. 570; Story's Eq. PI. § 448; Coop. Eq PI 
 111. 
 
92 DEFENSE TO A SUIT. 
 
 Demurrer to a Bill — Demurrer Ore Tenus — Coupled with Answer. 
 
 whole bill, for causes assigned on the record, if those causes 
 are overruled, the defendant will be allowed to assign other 
 causes of demurrer, ore tenus, at the argument, (as) But in 
 such a case, if the demurrer, ore tenus, is allowed, the defend- 
 ant is not entitled to his costs, even though he may not be 
 obliged to pay costs on tlie demurrer on record, which has 
 been overruled. (5) But a demurrer, ore tenus, will never be 
 allowed, unless there is a demurrer on record; for if there is a 
 plea on record, and that is disallowed, a demurrer, ore tenus, 
 will also be disallowed (c) Wheneverademurrer, ow^ewtts, is 
 permitted, it must be for some cause which covers the whole 
 extent of the demurrer, {d) And it has been held that the 
 right to put in such a demurrer, ore tenus, applies only to 
 cases where the deninrrer is to the whole bill, and not to cases 
 where it is to a part only, notwithstanding it is co-extensive 
 with the demurrer to that part, (e) 
 
 Demurrer coupled with an answer. — Where a demurrer is 
 to part of the bill only, the answer to the remainder usually 
 follows the statement of the cause of demurrer, and the de- 
 mand of judgment whether the defendant ought to be held to 
 make further or other answei-. But as the dem\irrer asks the 
 judgment of the court whether the defendant sliail make fur- 
 ther or other answer to the bill, or to that part demurred to, 
 it would be inconsistent if the defendant, after making such 
 submission, were to be permitted to answer the bill, or that 
 
 (o) Clarh v. I>av\es, Har. Ch. 227; Story's Eq. PI. § 464; Coop. Eq. Fl. 
 112; 1 Barb. Oh. Pr. 108; CartwrigU^. Green. 8 Ves. 40 t; Beama's Orel, 
 in Ch. 174; Brickerhoff v. Brown, 6 Johns. Ch. 149; Vmihorn v. Duck- 
 worth, 7 Ired. Eq. R. 26l;Caldwell v. Blackwood, 1 Jones' N. C. Bq. 274. 
 
 (b) lb., lb. 
 
 (c) Coop. Eq. PL 112; Dundant v. Redman, 1 Vern. li; AUornen-general 
 V. Brown, 1 Swanst. 288; Hook v. Dorman, 1 Sim. & Stu. 227; Story's Eq. 
 PI. §44.3. 464. 
 
 (d) Baker v. Mellish, 11 Ves. 70-76; SUllwoll v. McNeeley, 1 Green, Ch. 
 R. 305. 
 
 (e) Shepherd v. Lloyd, 2 Y. & Jery. 490; 1 Barb. Ch. Pr. 109; Stoi-y's 
 Eq. PI. § 464; see Crouch v. Hicken, 1 Keen, 385; Garlick v. Strong, 3 
 Paige, Ch. R. 452. 
 
DEFENSE TO A SUIT. 93 
 
 Demurrer to a Bill Coupled with Answer — Demurrer to Plea — ^When Filed. 
 
 part of it which is intended to be covered by the demurrer, (a) 
 It is for this reason, well settled, that an answer to any part 
 of a bill demurred to, will overrule the demurrer; (5) even 
 though the part answered be immaterial, (c) But a demurrer 
 for multifariousness is not overruled by an answer denying 
 confederacy; (d) nor is a demurrer to relief only overruled 
 by an answer as to the discovery, (e) 
 
 The fact that a bill does not ask for the proper relief, or 
 asks for inconsistent relief, is no ground for demurrer. (_/) 
 
 Demurrer to plea or answer. — The practice of demurring 
 to an answer is in violation of all the rules of chancery prac- 
 tice, and will not be, tolerated, {g) Tlie same may be said of 
 demurring to a plea. The proper practice is to set down the 
 plea for hearing, when its sufticiency will be considered. (A) 
 And it is provided by Chancery Rule 25, that "when the de- 
 fendant pleads or demurs to a bill, the complainant shall 
 have twenty days to file a replication to his plea or amend 
 his bill, and if he does not take issue on the plea or amend 
 his bill within that time, eitlier party may notice the plea or 
 demurrer for argument at the next or any subsequent term" 
 of court. 
 
 When to he filed. — A demurrer should be filed before the 
 complainant is entitled to a default, and all objections to the 
 bill must be made in the court where the same is filed. It 
 has been held in Illinois that it is too late to make objections 
 
 (a) Jones v. Earl of Strafford, 3 P. Wms. R. 81; 1 Barb. Ch. Pr. 108. 
 (6) Tidd V. Clare, 2 Dick. R. 81; Hester v. Weston, 1 Veru. R. 463; 
 Boberts v. Clayton, 3 Anst. R. 715. 
 
 (c) Mitf. Eq. PI. 172; 1 Barb. Ch. Pr. 108; Savage v. Smalebroke 1 
 Vem. 90. 
 
 (d) Hester v. Weston, 1 Vera. R. 463; 1 Eq. Cas. Abr. 40. 
 
 (e) 2 Dan. 76; 1 Barb. Ch. Pr. 108. 
 
 (/) Conner v. Board of Supervisors, 10 Minn. 439. 
 (g) Stone v. Moore, 26 111. 165; Story's Eq. PI. § 456. 
 {h) Lester \. Stevens, 29 111. 155; Mitf. Eq. PI. 301; Coop. Eq. PI. 231; 
 Durant v. Redman, 1 Vern. 78; Thomas v. Brashear, 4 Monr. 65. 
 
94 DEFENSE TO A SUIT. 
 
 Demurrer to a Bill — Hearing — Sustaining Demurrer — Overruling Demurrer. 
 
 to the sufficiency of tlie bill, for the first time in the Supreme 
 Court, {a) 
 
 In the courts of equity of the United States no demurrer 
 will be allowed to be filed, unless upon a certificate of counsel, 
 that in his opinion it is well founded in point of law, and is 
 supported by the affidavit of the defendant, that it is not 
 interposed for delay. (5) 
 
 Hearmg. — In hearing a demurrer, the argument is strictly 
 confined to the case appearing upon the record; and, for the 
 purpose of the argument, the matters of fact stated in the bill 
 are admitted to be true, (c) 
 
 Effect of sustaining demurrer. — On • a demurrer to the 
 merits of the whole bill, if it is sustained, the bill will be 
 dismissed, and the court will not grant leave to amend. [W) 
 But the allowance of a partial demurrer, (e) or a special de- 
 murrer on matters of form, or where the court can see that 
 the objections to the bill can be obviated by amendment, it 
 will be attended with no such consequences, (_/) and unless 
 leave to amend is asked, a dismissal of the bill is the proper 
 decree, (g) 
 
 Effect of overruling demurrer. — If a demurrer is overruled 
 as frivolous, the defendant may have leave to amend; if, how- 
 ever, he refuses or neglects so to do, the complainant may 
 have an order that the bill be taken as confessed. If the cause 
 of demurrer to a bill can be removed by an amendment, the 
 
 (a) Hichey v. Forristal, 49 111. 255; Nelson v. First Nat. Bank, Chi- 
 cago, 48 111. 36. 
 
 (6) Rule 31, Rules of Prac. for the C. E. U. S . 1870. 
 
 (c) East India Co. v. Hinchman, 1 Ves. Jr. 289; 1 Barb. Ch. Pr. Ill; 
 Wales V. Bank of Michigan, Barring. Ch. R. 308; Green v. Dodge, 6 
 Ham. 80; LeBaronv. Shepherd, 21 Mich. 263. 
 
 {d) 1 Johns. Ch. R. 184; Smithy. Barnes, 1 Dick. 67; Watkins v. Bush, 
 2 Dick. 701. 
 
 (e) 1 Barb. Ch. Pr. Ill; Mitf. Eq. PI. 214. 
 
 (/) Parker v. Aloeh, 1 Young & Jer. R. 194; 1 Har. Pr. 61; 1 Dan. 524; 
 Holmes v. Waring, 8 Price, 604. 
 
 {g) McDotoell v. Cochran, 11 111. 31. 
 
DEFENSE TO A BILL. 95 
 
 Demurrer to a Bill — Overruling Demurrer. 
 
 court may, without deciding the demurrer, allow the com- 
 plainant to amend his bill, upon payment of the costs incurred 
 by' the defendant, {a) In this connection see Chancery Rule 26. 
 
 Upon overruling a demurrer it is not necessary that the 
 court should rule the defendant to answer, but may at once 
 proceed to a decree, (h) 
 
 Notwithstanding a demurrer to a bill is overruled, the de- 
 fendant is entitled to file an answer, (c) 
 
 It is the duty of a defendant, if he relies on a demurrer to 
 a supplemental or amended bill, to call up the same, and have 
 it passed upon before the hearing and final decree; if he fails 
 to do so he will be deemed to have waived it. The rendering 
 of a decree in such a case is in eifect o^verruling the de- 
 murrer, {d) 
 
 Ifo. 24. Frame of a general demurrer. 
 
 State ob' Michigan. 
 
 The Circuit Court for the County of , In Chancery. 
 
 AB, 
 
 Complainant, 
 vs. 
 CB, 
 
 Defendant. ^ 
 
 The demurrer of C D, defendant, to the bill of com- 
 plaint of A B, complainant. 
 This defendant, by protestation, not confessing or acknowl- 
 edging all or any of the matters and things in the said bill of 
 complaint contained to be true, in such manner and form as 
 the same are therein and thereby set forth and alleged, {a) 
 demurs to said bill, and for cause of demur shows, that, etc. 
 {Here set forth the cause of demurrer.) ^ 
 
 (o) Crowder v. Turney, 3 Cald. Tenn. 551. 
 
 (h) Wangelin v. Gue, 50 111. 459; Roach v. Chapin, 27 HI. 194. 
 
 (c) SmithY. Ballentyne, 10 Paige, Oh. R. 101; Northwestern Bank v. 
 Nelson, 1 Gratt. Va. 108; Sutton v. Gatewood, 6 Munf. 398; Forrest v. 
 Jtdbinson, 4 Porter, Ala. 44; Avery v. Holland, 2 Overton, 71; Bottorf v. 
 Conner, 1 Blackf. 287; Lefavour v. Justice., 5 Blackf. 366; Barb. Ch. Pr. 
 112; Barnard v. Cushman, 35 111. 452. 
 
 [d] Long v. Fox, 100 111. 43. 
 
96 DEFENSE TO A BILL. 
 
 Demurrer to a BilL 
 
 Wherefore, and for divers other good cause8 of demurrer 
 appearing in the said bill of complaint, this defendant demurs 
 to the said bill, and to all the matters and things therein con- 
 tained, and prays the judgment of this honorable court 
 whether he shall be compelled to make any further or other 
 answer to the said bill, and he prays to be dismissed with his 
 reasonable costs on this behalf sustained. 
 
 By Solicitor for defendant. 
 
 It has been the general practice in framing a demurrer to 
 introduce a protestation against the truth of any of the facts 
 alleged in the bill; but it has no weight with the court, and 
 is entirely useless, {a) 
 
 The following form may, therefore, suffice. 
 
 No. 25. Short form of demwrrer. 
 
 {Title of cause as in No. 24.) The demurrer of C D, defend- 
 ant, to the bill of complaint of A B, complainant. 
 This defendant demurs to the said bill, and for cause of 
 demur shows that, etc. {Here insert the cause of demurrer^ 
 Wherefore this defendant demurs to the said bill, and to all 
 the matters and things therein contained, and prays the jnd";- 
 ment of this honorable court whetlier he shall be compelled 
 to make any further or other answer thereto, and prays to be 
 dismissed with his reasonable costs in this behalf sustained. 
 
 Demurrer or plea to hill in the United States Court. — 
 The 31st Rule of Practice for the courts of equity of the 
 United States, provides that " no demurrer or plea shall be al- 
 lowed to be filed to any bill, unless upon a certificate of coun- 
 sel, that in his opinion it is well founded in point of law, and 
 supported by the affidavit of the defendant, that it is not in- 
 terposed for delay ; and if a plea, that it is true in point of 
 fact." 
 
 The certificate of counsel in such case may be as follows: 
 
 (a) Barton's Suit in Eq. 99, note fl); Story's Eq. PI. §452; Mitf. Bq. PI. 
 107, 211, 212; Coop. Eq. PI. 111. 
 
DEFENSE TO A SUIT. 97 
 
 Demurrer to a Bill — ^Demurrer in the United States Court. 
 
 No. 26. Certificate of counsel that a demurrer to a hill in 
 U. S. Court is well founded in law. 
 
 {Following the demurrer, add:) I certify that, in my 
 opinion, the foregoing demurrer of D, defendant, to the bill 
 of complaint of A B, complainant, is well founded in law, 
 and proper to be filed in the above cause. 
 
 Sol. for defendant. 
 
 The affidavit of the defendant that the demurrer is not in- 
 terposed for delay, may be in the following form: 
 
 No. 27. Affidavit of defendant tlmt a demurrer to a hill in 
 the U. 8. Court is not interposed for delay. 
 
 {Following the certificate of counsel, add:) 
 
 United States of Ameeioa, ) 
 District of . j ®®- 
 
 C D, the defendant, on oath states, that he has heard read 
 the foregoing demurrer to the bill of complaint of A B in this 
 suit; and that the same is not interposed +br the purpose of 
 delaying said suit, or any proceedings therein. D. 
 
 Subscribed, etc. 
 
 No. 28 . Demurrer for want of equity. 
 
 {Commence as in No. 24, ante, at the *, and state caiise of 
 demurrer as follows:) That the complainant has not in and 
 by his said bill, made or stated such a case as entitles him, in 
 a court of equity, to any discovery or relief from or against 
 this defendant touching the matters contained in the said 
 bill, or any of such matters, (a) 
 
 Wherefore, etc. {Conclude, as in No. 24.) 
 
 {If there are more than one cause of demurrer, insert at 
 the [a) in the above precedent, the following:) " And for a 
 further cause of demurrer this defendant shows that, etc. 
 {Here set forth the further cause of dimurrer, and so on, 
 and conclude:) 
 
 Wherefore, etc. {As in No. 24.) 
 
 No. 29. Demurrer for multifariousness. 
 
 {Commence as in No. 24, ante, at the * and state cause of . 
 demurrer as follows:). . That it appears by the: s^id bill that 
 
 7 
 
DEFENSE TO A SUIT. 
 
 Demurrer to i Bill — Forms of. 
 
 the same is exhibited asjainst this defendant, and the several 
 other persons therein named as defendants thereto for distinct 
 matters and causes, in several whereof, as appears by the said 
 bill, this defendant is not in any manner interested or con- 
 cerned, and that the bill is altogether multifarious. 
 "Wherefore, etc. {Conclude as in No. 24.) 
 
 No. 30. Demurrer for want of parties. 
 
 {Commence as in No. 24, ante, to the *, and state cause of 
 demurrer asfoUov^s:) That it appears by the complain- 
 ant's bill, that G H, therein named, is a necessary party to 
 the said bill, inasmuch as it is therein stated that E F, the 
 testator in the said bill named, did, in his life-time, by certain 
 
 cotive3'ances made to the said G H, in consideration of 
 
 dollars, convey to him by way of mortgage, certain estates, 
 in the said bill particularly mentioned and described, for the 
 purpose of paying the said testator's debts and legacies; but 
 the complainant has not made the said G H a party to said 
 bill. 
 
 Wherefore, etc. {Conclude as in No. 24.) 
 
 No. 31. Demurrer for want of jjririty. 
 
 {Commence as in No. 24, ante, to the *, and state cause of 
 demurrer as follows:) That it appears by the complainant's 
 said bill, that there is no privity between the complainant and 
 this defendant, to enable the complainant to call upon this 
 defendant for the payment of any debt due to the estate of the 
 said testator from this defendant. 
 
 Wherefore, etc. {Conclude as in No. 24.) 
 
 No. 32. Demurrer to a hill of discovery, where the defend- 
 ant could be examined as a witness. 
 
 {Commence as in No. 24, ante, to the *, and state cause of 
 demurrer as follows:) That the complainant has not, in and 
 by his said bill, stated, charged or shown, that this defendant 
 has, or pretends to have, any right, title or interest in the 
 matters and things complained of by the said bill, or any of 
 thein; or any right to call upon this defendant, in a court of 
 equity, for a discovery of said matters and things, or any of 
 them. And that for anything that appears to the contrary 
 by said bill, this defendant may be examined as a witness in 
 this suit. 
 
 Wherefore, etc. {Conclude as in No. 24.) 
 
DEFENSE TO A SUIT. 99 
 
 Plea to a Bill — Nature of. 
 
 No. 33. Demurrer to a hill., where the complamant has no 
 interest in the subject. 
 
 {Commence as in No. 24, ante, to the *, and state cause of 
 (lemurrer as folloios:) That the complainant has not, as 
 appears \iy his said bill, made out any title to the relief there- 
 by prayed. 
 
 Wherefore, etc. {Conclude as in No. 24.) 
 
 No. 34. Demurrer to a fart of the hill. 
 
 {Proceed as in No. — ante, to {a) and then insert the follow- 
 ing:) As to 80 much of said bill as seeks that this defend- 
 ant may answer and set forth whether, etc., {state the matter 
 demurred to,) or seeks any discovery from this defendant, 
 whether, etc., {setting out the interrogatory,) demurs thereto, 
 and for cause of demurrer shows that, etc., {Here set forth the 
 cause of demurrer.) as to tlie matters hereinbefore specified, 
 or any of such matters. 
 
 Wherefore, and for divers otlier good causes of demnrrer 
 appearing in the said bill of complaint, as to so.mnch thereof as 
 before is set forth, this defendant demurs and prays the judg- 
 ment of this honorable tourt whether he sliall be compelled 
 to make any further answer to such parts of the said bill as 
 is so demurred to as aforesaid. 
 
 By Sol. for defendant. 
 
 No. 35. Demurrer to part of a hill., with an answer to the 
 
 residue. 
 
 {Proceed as in last form. No. 34, to the end, and con- 
 tinue as follows :) And this defendant not waiving his said 
 demnrrer, but relying thereon, and saving and reserving unte 
 himself all benefit and advantage of exception to the many 
 errors, uncertainties and other imperfections in the residue 
 of the said bill Contained, this defendant for answer says, etc. 
 {Continue as in form of an answer, No. — post.) 
 
 SECTION IV. 
 
 II. PLEA TO A BILL. 
 
 Nature o/!— When an objection to a bill in chancery is not 
 apparent on the bill itself, or, as the technical phrase is, de- 
 hors the bill, if the defendant means to take advantage of it 
 
100 DEFENSE TO A SUIT. 
 
 Plea to a Bill — ^Nature of. 
 
 he must show the matter which creates the objection, to the 
 court by a plea, or by answer, {a) In some cases, th'e objec- 
 tion can be taken only by a plea; in others, again, it may be 
 taken either by a plea or by answer; and in others again, it 
 can be taken only by answer, {b) In other words, the defend- 
 ant may demur to one part of the bill, plead to anotlier, an- 
 swer to anotlier, and disclaim as to another, if the nature of 
 his case requires it, in the same manner as he may demur, or 
 plead, or answer to the whole bill, if his defense equally ap- 
 plies to all parts thereof, (c) 
 
 Pleas are usually divided into two sorts; one commonly 
 called pure pleas, which contain matter wholiy cZeAora the bill, 
 such as a release, or a settled account; and another, called, in 
 contradistinction to the other, pleas not pure, or anomalous 
 pleas, and most geii«rally negative pleas, which consist main- 
 ly of denialsof the substantial matters sfet forth in the bill, {d) 
 
 The true office of a plea is to save to tlje.parties the expense 
 of an examination of the witnesses at large.; and the defense 
 proper for a plea is such as reduces the cause, or some part of 
 it, to a single point, and from thence creates a bar or other 
 obstruction to the suit, or to the point, to whiclrthe plea 
 applies, (e) Therefore a plea, to be good, whether it be affirm- 
 ative or negative, must be either an allegation or a denial 
 of some Iteading. fact, or of matters which, taken collectively, 
 make out some general fact, which is a complete defense, {f) 
 
 fa) Story's Eq. PI. § 647; Mitf. Eq. PL 219. 
 
 (6) Story's Eq. PI. §§ 439, 647; Aggas v. Pickerill, 3 Atk. 226; ffamV 
 V, Pollard, 3 P. Wins. R. 34S; Ccop. Eq. PI. 302; see Sowe Y.Tweed, 15 
 Ves. 377. ''^ 
 
 (c) Doives V. McMichael. 6 Paige, Ch. R. 3S3; Lord Red. 214; Story's Eq. 
 t'l § 647'; Mitf. Eq. PI. 319; Beard v. Bowler, 2 Bond, 13. 
 
 (d) Story's Eq. PI. §§ 667, 651; Sandersw. King, 6 Mad. R'. 61) Penning- 
 ton V. Beachy, 2 Sim. & Stu. R. 274, 276; 2 Dan. Ch. Pr. 99. 100, 110,111. 
 
 (e) Story's Eq. PI. § 652; Mitf. Eq. PL 295; Coop. Eq. PL 223; Chapman 
 V. Turner, 1 Atk. R. 54; Ritchie v. Aylwin, 15 Ves. R. 82; Roive v. Ticeed, 
 15 Ves. 378; Wood v. Rowe, 2 Bligh. R. 595, 614; tiearft v. Corning, 3 
 Paiee, Ch. R. 566. , , , _ 
 
 {f) Robertson v. Lubboch, 4 Sim. R. 161; Sailers v. Tobias, 7 Johns. Ch. 
 R. 214; 2 Dan. Ch. Pr. 102-104. 
 
DEFENSE TO A SUIT. 1(?1 
 
 Plea to a Bill— When Proper— Jurisdiction of the Court. 
 
 But, although a defense, offered by way of plea, should con- 
 sist of a great variety of circumstances, yet, if they all tend 
 to a singie point, the plea may be good, {a) Where a defense 
 consists of numerous facts and circumstances, making it nec- 
 essary to go into the examination of witnesses at large, it 
 should be set up by answer, and not by plea. (J) 
 
 And where the allegations of a plea, being taken as true, do 
 not make out a . fnU defense, or where the necessary facts are 
 to be gathered by inference alone, the plea will not be sus- 
 tained, (c) And where all tlie facts set up by plea appear 
 upon tlie face of the bill, the plea is bad. {d) 
 
 When proper. — The limit of this work will not justify 
 much of its space to be taken up in considering this branch 
 of the subject. The reader's attention is directed to other 
 works, where the subject is treated of fully and at large, (e) 
 
 Pleas have been arranged under four classes: I, to the juris- 
 diction; II, to the person of the plaintiflF; III, to the bill, or 
 the frame thereof; and lY, in bar. 
 
 I. To the jurisdiction of the court. — A plea to the juris- 
 diction does not dispute the right of the complainant iB-fthft, 
 suit, but simply asserts either that his claim is not a fit sub- 
 ject of cognizance in a court of equity, or that some other 
 tribunal is invested with the proper jurisdiction. It is diffi- 
 cnlt to disguise any case, wliich this plea would reach, so as 
 to avoid a demurrer; but there may be instances to the con- 
 trary, and even averments in the bill, which would leave the 
 defendant no other means of protecting himself. If, for ex- 
 
 (a) Story's Eq. PI. § 652; 2 Dan. Ch. Pr. 103; Mitf. Eq. PL 296; Ritchie 
 V. Aylu'in, 15 Ves. 82; Dawson v. Pilling, 16 Sim. B. 203. 
 
 {h) Loud V. Sergeant, 1 Edw. dh. R. 164. 
 
 {c)Meeker v. Afa.>-s/!!, Saxon R. 198; see Piatt y. OKwer, 1 McLean, 295; 
 Lewis V. Baird, 3 McLean, 56. 
 
 {d) Phelps V. Garrow, 3 Edw. Ch. R. 1.39: VarickY., Dodge, 9 Paige, Ch. 
 R. 149; Fowler v. Lewis, 3 A. K. Marsh. R. 443; Cozine v. Graham, 2 
 Paige, Ch. R. 177. 
 
 {e) See Story's Eq. PI. § 647-837; Coop. Eq. PI. ; Dan Ch. Pr. Mitf. Eq. 
 PI. ; Welf. Eq. PI. 
 
102 DEFENSE TO A SUIT. 
 
 Plea to a BiU— To the Person— To the Bill. 
 
 ample, a bill in the circuit court of the United States should 
 allege that the complainants and defendants are citizens of 
 different States, the defendant can only contest this fact by a 
 plea to the jurisdiction. The court of chancery being one of 
 general equity jurisdiction, a mere allegation or the want of 
 jurisdiction is not sufficient; but the plea must show by what 
 means the jurisdiction has been lost, and by what court it is 
 possessed, {a) 
 
 An exception to the jurisdiction, by denial of the fact of 
 citizenship, must be taken by plea in abatement; it can not 
 be insisted on by way of answer, {h) A defendant will not 
 be allowed, by plea, to deny the citizenship of his co-defend- 
 ant, so as to oust the jurisdiction, it being a personal privi- 
 lege, (c) 
 
 IL To the person. — A plea to the person of the complain- 
 ant merely dis.pntes the ability of the complainant to sue, 
 without putting in issue the subject-matter of the controversy. 
 It may assert either that the complainant is an alien enemy, or 
 that he is an alien, and the suit respects lands; or that the 
 complainant is an infant, ferriii covert, lunatic, or bankrupt; 
 or that he is not the person whom he pretends to be in his 
 bill; or does not sustain the character which he assumes, (d) 
 
 The bankruptcy of the complainant, and non-joinder of his 
 assignee,' must be pleaded; it can not be insisted on byway 
 of answer, (e) 
 
 III. To the bill. — Pleas to the bill, or the frame of the 
 bill, bear a close resemblance to pleas in abatement of the 
 
 (a) Barton's Suit in Eq. 103; Burger -f. Potter, 32 111. 66: Lester v. Ste- 
 vens, 29 111. 155: Varickv. Dodge, 9 Paige, Ch. R. 149; see Story's Eq. 
 PI. § 710-721: Emerson v. fV. U. U. R. Co., 76 111. 176. 
 
 (6) Wood V. Mann, 1 Sumner, 578; Livingston v. Story, 11 Pet. 351; 
 Didge v. Perkins, 4 Mason, 435; Burn'iamv. Rangeley, 1 W. & M. C. C. 
 R. 7. 
 
 (c) Harrison v. Urann, 1 Story, 64. 
 
 (d) Barton's Suit in Eq. 103; Story's Eq. PI. § 722-739; Mitf. Eq. PI. 
 230; Beams's PI. in Eq. 120-122; Coop. Eq. PI. 249, 250; Ord v. Huddles- 
 ton. 2 Dick. 610. ■ 
 
 (e) Kittredge v. Claremont Bank, 3 Stoip^, 590. 
 
DEFENSE TO A SUIT. 108 
 
 Plea to a BUI — Pleas in Bar—Frame of Plea. 
 
 action at common law. Without dispating the right of the 
 complainant to the relief which he seeks, thej allege that the 
 suit, as it appears on the record, is insufficient to answer the 
 purposes of complete justice, or ought not for some reason to 
 proceed. The most usual of these pleas are either the pend- 
 ency of another suit for the same matter in another court of 
 equity; or the want of proper parties to the bill, (a) 
 
 IV. Pleas in har. — Pleas in bar are usually divided into 
 three heads: 1, pleas founded upon some defense created by 
 statute, such as limitations, or the statute of frauds; 2, pleas 
 founded on matter of record, such as a former decree; and 3, 
 pleas of matters in pais, to which belong the plea of a stated 
 account, of an award, of a release, of a purchase for a valuable 
 consideration, and of title in defendant, obtained either by 
 adverse possession for a length of time, or by deed or will, (b) 
 
 Frame of plea. — A plea is preceded by a title. in this form : 
 " The plea of C D, a defendant, to the bill of complaint of A 
 B, complainant," or " The joint and several plea of C D and 
 E F, defendants," etc. Where it is the plea of husband and 
 wife, the words "and several" should not be inserted; though 
 these words will not vitiate the plea, being mere surplusage, (a) 
 
 A plea, like a "demurrer, is introduced by a protestation 
 against the confession of the truth of any matter contained in 
 the bill. It next states how much of the bill it is intended to 
 cover, and what part in particular; and this must be clear! v 
 and distinctly shown, {d) Therefore, a pJea to such parts of 
 the bill as are not answere.d, will be overruled as too general, ie) 
 A plea in bar must be accompanied by an answer, showino- 
 the truth of the plea, and denying the charges of the bill, {f) 
 And it is not sufficient to deny only a pai-t of the material 
 
 (o) Barton's Suit in Eq. 103, 104; Story's Eq. PI. § 735-835. 
 (6) Barton's Suit in Eq. 104; Story's Eq. PI. § 748-778. 
 (c) I Barb. Ch. Pr. 115; Pavie v. A'Court, 1 Dick. R. 13; Story's Eq PI 
 § 736-739, 
 (d)MM. Eq. PI. 294, 300. 
 («) Amn, 8 Atk. R. 70. 
 if) Piatt V. Oliver, 1 McLean, R. 295; 8 N. H. 280; 5 Johns. Ch. 655. 
 
104 DEFENSE TO A SUIT. 
 
 Plea to a Bill — Frame of Plea. 
 
 facts stated in the bill; a mere denial of facts is proper for an 
 answer, but not for a plea, (a) 
 
 . If the plea professes to go to the whole bill, and does, in 
 fact, cover the whole subject to which the plea applies, and the 
 matter is a full defense to the suit, it is unnecessary to answer 
 other parts of the bill not involved in the subject which forms 
 the ground of defense, {h) 
 
 A plea must be perfect in itself, so that, if true, it will 
 make an end to the case, (c) 
 
 Where the plea is of matter which shows an imperfection 
 in the frame of the bill, it should point out in what that im- 
 perfection consists. Where, for instance, a plea is for want of 
 parties, it must not only show that there is a deficiency of 
 parties, but should point out who the parties are that are 
 wanting, {d) 
 
 The plea commonly concludes with a repetition that the mat- 
 ters so offered are relied upon as an objection or bar to the 
 suit, or so much of it as the plea extends to; and prays the 
 judgment of the court whether the defendant ought to be 
 compelled further to answer the bill, or such parts as are thus 
 pleaded to. {e) 
 
 If the plea is double, that is to say, if it tenders more than 
 one defense as the result of the facts stated, it will be bad. {f) 
 A plea is not rendered double, however, by the mere insertion 
 therein of several averments, that are necessary to exclude 
 conclusions arising from allegations which are made in the 
 bill, to anticipate and defeat the bar which might be set up 
 in the plea, {g) 
 
 The rule that a defendant cannot plead double, is not to be 
 understood as precluding the defendant from putting in sevy 
 
 (ff) Milligan v. Milledge, 3 Cranch, R. 220. 
 
 (6) Sims V. LyU, Wash. C. C. Rep. 301. 
 
 (c) Allen V. Randolph, 4 Johns. Ch. R. 693; see, also, Bogardus v. Trinity 
 Church, 4 Paige, Ch. R. 178. 
 
 {d) Merreweather v. MelUsh, 13 Ves. 437-8. 
 
 (e) Mitf. Eq. PI. 300; 1 Barb. Ch. Pr. 116. 
 
 (/) Albany City Bank v. Dorr, Wal. Ch. 317; Carroll v. Potter, Walk. 
 Ch. 355; Nobkisseny. Hastings, 2 Ves. Jr. R. 84; Jones v. Frost, 3 Mad. 1, 8. 
 
 {g) Bogardus v. Trinity Church, 4 Paige, Ch. R. 178; 1 Barb. Ch. Pr. 116. 
 
DEFENSE TO A SUIT. 105 
 
 Forms of Pleas— To the Whole Bill. 
 
 eral pleas to different parts of the same bill. It merely pro- 
 hibits his pleading, without previous leave, a double defense 
 to tlie whole bill, or to the same portion of it. A defendant 
 may plead different matters to separate parts of the same bill, 
 in the same manner as he may demur to different portions of 
 the bill, {a) 
 
 In addition to the requisites of a plea already mentioned, it 
 maybe stated that a plea must be certain. It must tender 
 issuable matter, the truth or falsehood of which may be re- 
 plied to or put in issue; and that nqt in the form of general 
 propositions, but specifically and distinctly. (5) 
 
 Where the plea is accompanied by an answer, the answer 
 must follow the conclusion of the plea. If the answer is 
 merely to support the plea, it is stated to be made for that 
 purpose, " not waiving the plea." If the plea is to part of the 
 bill only, and there is an answer to the rest, it is expressed to 
 be an answer to so much of the bill as is not before pleaded to; 
 and is preceded by the same protestation against waiver of the 
 plea, (c) If the plea is such, that an answer is required to 
 support it, it will be overruled, unless such answer is put in. {d) 
 
 FORMS OF PLEAS. 
 
 JVo. 36. Commencement and conclusion of fleas to the 
 
 whole iill. 
 State of Michigan. 
 The Circuit Court for the County of in Chancery. 
 
 Complainant, 
 vs. 
 CD, 
 
 Defendant. 
 
 The plea of C D, defendant, to the bill of complaint 
 of A^B, complainant. 
 This defendant by protestation, not confessing or acknowl- 
 
 (a) 2 Dan. Oh. Pr. 105; ilforetora V. .ffo»T-iso», 1 Bland, 493; Bidgeley 
 V. WarfieU, 1 Bland, 194. 
 
 (fe) Parker V. Parker,'WsXk. Ch..^hl; Nabob of Arcott v. East I. Co: 
 8 Bro. C. C. 292; 1 Barb. Ch. Pr. 117; Allen v. Randolph, 4 Johns. Ch R 693' 
 
 (c) Mitf. Eq. Pi. 300; 1 Barb. Ch. Pr. 117. '. 
 
 {d) Schwarz v. Wendell, Harring. Ch. R. 395; 1 Gill & J. 270. 
 
106 DEFENSE TO A SUIT. 
 
 Forms of Pleas— To Part of a Bill. 
 
 edging all or any of the matters and things in the complain- 
 ant's said bill mentioned to be true in such manner and form 
 as the same are therein and thereby set forth and alleged, doth 
 plead thereunto, and for plea says, * that, etc. {Here set forth 
 the subject-matter of the plea, and conclude as follows:^ 
 All which matters and things this defendant avers to be true, 
 and pleads the same tothe-wholfe of the said bill, and demands 
 the judgment of this honorable court whether he ought to be 
 compelled to make any answer to the said bill of complaint; 
 and prays to be hence dismissed, with his reasonable costs in 
 this behalf most wrongfully sustained. 
 
 By , Solicitor for Deft. 
 
 {If the plea is of matters in pais, add affidavit.) 
 
 Wo. 37. CommeMcement and conclusion of pleas to part of 
 
 a hill. 
 {Title of cause.) 
 
 The plea of C D, defendant to the bill of com- 
 plaint of A B, complainant. 
 
 This defendant, by protestation, not confessing or acknowl- 
 edging the matters and things in and by said bill set forth and 
 alleged to be true, in such manner and form as the same are 
 thereby and therein set forth and alleged, for plea to so much 
 and such parts of said bill as prays, etc. (or seehs a discovery 
 from this defendant,) says that, etc. 
 
 {Here set forth the subject-matter of the plea, and con- 
 clude as follows:) 
 
 Therefore, this defendant doth plead the same in bar to so 
 much of the said complainant's bill as hereinbefore is particu- 
 larly mentioned; and prays the judgment of this Jionorable 
 court whether he should be compelled to make any further 
 answer to so much of the said bill as is hereinbefore pleaded to, 
 and prays to be hence dismissed with his costs and charges in 
 this behalf most wrongfully sustained. 
 
 No. 38. Ple^ in abatement to the jurisdiction of the court. 
 
 {Commence as in No. 36, ante, to the *.) Tliat these defend- 
 ants, and each and all of them, before and at the. time of 
 filing of the complainant's bill of complaint, were, and still 
 
 are, residents of the county of , in said State; that neither 
 
 of these defendants, at the time of filing said bill, was a resi- 
 dent of the county of , where said bill was filed; that the 
 
 said suit in no manner affects or relates to real estate in the 
 county where the same was exhibited as aforesaid. 
 
 Therefore, etc. {Conclude as in No. 36.) 
 
DEFENSE TO A SUIT. 107 
 
 Pleas -Of Coverture— Of Infancy— Of Administrator— Of Enemy. 
 
 The above plea is fVauied with reference to the statute of 
 Michigan, which provides that suits in chancery shall be coni- 
 inenced in the county where the defendants, or some one or 
 more of them reside; or if the defendants are all non-resi- 
 dents, then in any county; or if the suit may affect real estate, 
 then in the county where the same, or some .part thereof, is 
 situated. Bills for injunction to stay proceedings at law, shall 
 be brought in the county in which the proceedings at law are 
 had. 
 
 No. 39. Plea of coverture of the com.plainant. 
 
 {Commence as in JVo. 36, ante, to the *.) That the complain- 
 ant, before and at the time of filing lier said bill, was, and 
 now is, under coverture of one B B, her husband, who is still 
 living, and in every respect capable, if necessary, of institut- 
 ing any suit at law, or in equity on her behalf. 
 
 Therefore, etc. {Conclvde as in No. 36.) 
 
 In Michigan, a married woman may sue in her own name, 
 without joining the husband, in matters pertaining to her 
 separate property, (a) 
 
 No. 40. Plea of infancy without a prochein amy. 
 
 {Commence as in No. 36, ante, to the *.) That the com- 
 plainant, before and at the time of tiling liis said bill, in which 
 he appears as sole complainant, was and now is, an infant 
 under the age of twenty-one years; that is to say, of the age 
 of years, or thereabouts. 
 
 Wherefore, etc. {Conclude asimNo. 36.) 
 
 No. 41. Plea that the defendant never was administrator, as 
 alleged in bill. 
 
 {Commence as in No. 36, ante, to the *.) That he is not, and 
 never has been, administrator of the goods and chattels, rights 
 and credits, which were of the said E F, deceased, in the said 
 bill named, as the complainant in his said bill has untruly 
 alleged. 
 
 Wherefore, etc. {Conclude as in No. 86.) 
 
 No. 42. Plea that the complainant is an alien enemy. 
 {Commence as in No. 36, ante, to the *.) That the com- 
 plainant, A B, is alien, born of foreign parents, and in for- 
 
 (o) Comp. Laws 1871, chapter 171. 
 
108 DEFENSE TO A SUIT. 
 
 Forms of Pleas — Of want of Proper Parties — Former Suit Pending. 
 
 eign parts, that is to say, at Liverpool, in the kingdom of 
 Great Britain, and out of the United States of America, and 
 under the allegiance of the Queen of Great Britain, who is 
 an enemy of the United States, and to whom the parents of 
 the complainant adhere; and the complainant also before, 
 and at the time of tiling" his said bill, was, and now is, an 
 enemy of the United States, and entered into the United 
 States with the safe conduct of the government of the United 
 States, and has not been made a subject or citizen of the 
 United States, by naturalization or otherwise. 
 Wherefore, etc. {Conclude as in No. 36.) 
 
 Ho. 43. Plea of want of proper parties. 
 
 {Commence as in No. 36, ante, to the *.) That as to so 
 much of the complainant's bill as seeks an account from this 
 defendant, as executor and heir-at-law of E F, deceased, in 
 the said bill named, this defendant's late brother, for what 
 remains due and owing upon the bond in the said bill men- 
 tioned, bearing date on, etc., and payment by this defendant 
 as such executor and heir-at-law of the said E F, deceased, as 
 aforesaid, of what he found due on taking such account; this 
 defendant doth plead thereto, and for plea says, that no part 
 
 of the sum of dollars, for securing the repayment whereof 
 
 the said bond was executed, was paid to, or secured by the 
 said E F, but that the whole was paid to G H, in the said 
 bond and in the said bill also named, and received by him for 
 his sole use, and that the said E F was only a surety for the 
 said G II, and that the coinplHinant afterwards acceiited a 
 composition for what he alleged to be due on the said bond 
 from the said G. H, without the privity of the said E F in 
 his life time, or this defendant since the death of the said E 
 F, which took place on or about, etc., as in the said bill men- 
 tioned, since which no demand has been made on this defend- 
 ant for any money alleged to be due on the said bond; and 
 that the said G H died several years ago, seized of consider- 
 able real estate, and also possessed of a large personal estate; 
 and that his heir-at-law, or the devisee of his real estate, and 
 also the representative of his personal estate, ought to be, but 
 are not made parties to the said bill. 
 
 Therefore, etc. {Conclude as inform No. 36.) 
 
 No. 44 Former suit pending. 
 
 {Commence as in No. 36, ante, to the *.) That , on, 
 
 etc., the said present complainant exhibited his bill of com- 
 
DEFENSE TO A SUIT. 109 
 
 Forms of Pleas — Of Limitation. 
 
 plaint in this honorable court against this defendant and one 
 £ F, for an account of the moneys raised by the sale of the 
 goods and property in the complainant's present bill men- 
 tioned, and claiming such shares and proportions thereof, and 
 such rights and interests therein, as he now claims by his 
 present bill; and praying relief against; this defendant in the 
 same manner, and for the same matters, and to the same effect 
 as the complainant now prays by his said present bill; and 
 this defendant and saidE F appeared and put in their answer 
 to the said former bill, and the complainant replied thereto; 
 and the said former bill, and the several proceedings in the 
 said former cause, now remain depending, and as of record in 
 this honorable court, the said cause being yet undetermined 
 and undismissed. 
 
 AVherefore, etc. {Conclude as in No. 36.) 
 
 A plea to a bill in equity, that there is another suit pend- 
 ing in the same court, for the same cause, is good only when 
 the whole of the relief sought in the second suit is attainable 
 in the first, {a) 
 
 A plea that complainant has parted with his interest in the 
 suit is a good defense, (h) 
 
 No. 45. Plea of the statute of limitations. 
 
 [Commenoe as in No. 36, ante, to thd*.) That if the com- 
 plainant, either in his own right or as executor of E F, de-' 
 ceasedj in the bill named, ever had any cause of suit against 
 him, this defendant, for or concerning any the mattersj trans- 
 actions or dealings in the said bill of complaint mentioned,' 
 which this defendant doth in no sort admit, the same did 
 accrue or rise above years -before the said bill of com- 
 plaint was exhibited in this honorable court; and this defend- 
 ant further for plea says, and doth aver, that he did not at' 
 any time within - — years before the filing of the complainant's' 
 said bill of complaint, ever promise or agree to come to any 
 account for; or to pay, or any way satisfy the complainant any 
 money, for or concerning any the matters, transactions, oV 
 dealings in the complainant's said bill of complaint charged or 
 alleged. 
 
 llierefore, etc. {Conclude as in No. 36.) 
 
 (a) McKaig v. riatt, 34 Md. 249. 
 
 (6) Wallape v. Dunning, Walk. Ch. 416; Webster \. Hitchcoch, 11 Mich. 
 56; Brewer Y..Dodge; 28 Mich; 359; Perkins v. Perkins, 16 Mich. 162. ' 
 
110 DEFENSE TO A SUIT. 
 
 Forms of Pleas — Of a Release. 
 
 No. 46. Plea of a release, with answer in support of the 
 
 same. 
 
 {Commence as in No. 36, ante, to the *.) That as to so much 
 and such part of the complainant's bill as seeks an account 
 of the several dealings and transactions between the com- 
 plainant and this defendant, previously and up to the day 
 
 of , etc., and prays the balance, if any, which shall be 
 
 found due, upon taking such account, from this defendant, 
 may be paid by him to the complainant; this defendant 
 doth plead thereto, and for plea says, that previous to the 
 hling of the complainant's bill, that is to say, on, etc., the 
 
 complainant, in consideration of the sum of dollars, then 
 
 paid to hira by this defendant, by a certain writing of release, 
 under his hand, and sealed with his seal, ready to be produced 
 to this honorable court, did for himself, his executors, and 
 administrators, remise, release, and forever quit-claim unto 
 this defendant, his heirs, execnt'irs andadministi-ators, among 
 other things, the several matters and things in the complain- 
 ant's bill mentioned and complained of, an account whereof 
 is thereby sought against this defendant as aforesaid, and all 
 suits and demands whatsoever, both at law and in equity, 
 which the complainant tlius had, or might thereafter have in 
 respect of the several dealings and transactions, matters and 
 things, in the said bill mentioned, or any of them; and this 
 defendant avers, that the said release was freely, fairly and 
 voluntarily given and executed bv the complainant, on the 
 day the same bears date; and that the complainant well knew 
 the nature and effect thereof previously to giving and execu- 
 ting the same; and that the sum of dollars so paid by 
 
 this defendant to the complainant as aforesaid, was a full and 
 fiair equivalent for any demand which the complainant could 
 or might have against this defendant in respect of the several 
 matters therein, and in the said bill also mentioned, or any 
 of them. 
 
 Therefore this defendant pleads the said release in bar to so 
 much of the complainant's bill as is hereinbetore particularly 
 mentioned, and prays the judgment of this honorable court, 
 whether he ought to be compelled to make any further answer 
 to so much of the said bill as is before pleaded unto. 
 
 And this defendant not waiving his said plea, but insisting 
 thereon for answer to the residue of the said bill, and in sup- 
 port of his said plea, says he denies that the said release was 
 unduly obtained by this defendant from the complainant, or 
 
DEFENSE TO A SUIT. HI 
 
 Eorms of Pleas— Of a Stated Account. 
 
 that the complainant was ignorant of the nature and effect of 
 such release, or that the consideration paid by this <iefendant 
 to induce the complainant to execute the same, was all inade- 
 quate to the just claims and demands of the complainant 
 against this defendant, in respect to the several dealings and 
 transactions in the said bill mentioned, or any of them;- and 
 this defendant denies, etc., etc. {Here insert any other denial 
 or allegation that the case may require, and add affidavit of 
 the truth of the plea and answer.) 
 
 No. 47. Plea of a stated- account. 
 
 {Commence as in No. 36, ante, to the *.) That as to 
 so much and such part of the complainant's bill as seeks an ac- 
 count of and concerning the dealings and transactions therein 
 alleged to have taken place between the complainant and 
 
 this defendant, at any time before the day of , A. D. 
 
 18 — , this defendant for plea thereto, says that on the said 
 
 day of , A. D. 18 — , wliich was previously to the 
 
 said bill being filed, the complainant and this defendant did 
 make up, state, and settle an account, in writing, a counterpart 
 whereof was then delivered to the complainant, of all sums of 
 money, which this defendant had before that time, by the 
 order and direction, and for the use of the complainant re- 
 ceived, and of all matters and things thereunto relating, or at 
 
 any time before the said day of , A. D. 18 — , being 
 
 or depending between the complainant and this defendsnt, 
 and in respect whereof the complainant's said bill of complaint 
 has since been filed; and the complainant, after a strict ex- 
 amination of said account, and e'^ery item and particular 
 thereof, whtch this defendant avers, according to the best of 
 liis knowledge and belief, to be true and just, did approve and 
 allow the same, and actually received from this defendant the 
 
 sum of dollars, the balance of the said account, which by 
 
 the said account appeared to be justly due to him from this 
 defendant; and the complainant thereupon, and on, etc., gave 
 this defendant a receipt, or acquittance for the same, under 
 his hand, in full of all demands, and which said receipt or ac- 
 quittance is in the words and figures following, tliat is to say 
 {Rere set out receipt verbatim); as by the said receipt or ac- 
 quittance now in possession of tliis defendant, and ready to 
 be produced to this honorable court, will ajjpear. 
 
 Therefore, etc. {Conclude as in the last precedent, varying 
 the conclusion and, answer, in support of the plea, to suit the 
 case. Mso, add affidavit of the truth of the plea. 
 
112 DEFENSE TO A SUJT. 
 
 Forms of Pleas-^Signing of Plea — When Sworn to. 
 
 No. 48. Plea to paH and answer to the residue of hill. 
 
 {Title court and cause as in No. 36.) 
 
 The plea of C D, defendant, to part, and the answer 
 of the same defendant to the residue of the bill of 
 complaint of A B, complainant. 
 
 This defendant, to all the relief sougTit by the said bill, and 
 also, to all the discovery thereby sought, except the discovery 
 sought by or in respect of (so much of the said bill as praj's 
 that this defendant may answer and set forth.) whether etc , 
 (here the la/nguage of the interrogatories which it is necessary 
 to answer, must be introduced,) this defendant does plead in 
 bar, and for plea says, etc. {Here set out the plea.) 
 
 AH of which matters and things this defendant does aver 
 to be true, and does plead the same in bar to the whole of the 
 said bill, except such part of the discovery thereby sought as 
 aforesaid; and this defendant prays the judgment of this 
 honorable court, whether he ought to be compelled to make any 
 further or other answer to so much of the said bill as is liere- 
 by pleaded to, and he prays to be hence dismissed with his 
 costs. 
 
 And for answer to such parts of the said bill as are excepted, 
 this defendant says, that, etc. {Here insert answer as in 
 precedents, under head of answers.) 
 
 Signing of plea. — A plea must be signed by the party as 
 well as counsel; but where it is not sworn to, the signature of 
 counsel is suiBcient. {a) , 
 
 When plea must he sworn to. — The rule is inflexible in 
 chancery proceedings, that a plea in bar of matters in pais 
 must be sworn to, (5) but pleas to the jurisdiction of the court, 
 or indisability of the person of the complainant, or pleas in 
 bar of any matter of record, or of matters recorded, as of a 
 record in the court itself, or any other court, need not be on 
 oath. (c) 
 
 (a) 1 Barb. Ch. Pr. 117; Simes v. Smith, 4 Mad. 366. 
 (6) Durm v. Keegin, 3 Scam. 292; Wall v. Stuhhs, 2 Ves. & B. R. 354; 
 -> — V. Davies, 19 Ves. 81 ; Heartt v. Corning, 3 Paige, Ch. R. 566. 
 (o) Mitf. Eq. PL 247, 301; Urlin v. Hudson, 1 Vera. 332. ■ - ■ 
 
DEFENSE TO A SUIT. 113 
 
 Pleas — When to be Filed — Replication to Plea. 
 
 lu all cases where a plea \a accompanied by an answer, it 
 must be put in upon oath, (a) A plea must be verified by 
 oath, although the complainant has expressly waived an an- 
 swer from the defendant on oath, (b) If it is not sworn to, tlie 
 complainant maj"^, if application is made in apt time, have it 
 stricken from the files, but the application must be made be- 
 fore the argument of the plea, (c) 
 
 When to he filed. — A plea being tlie second in the order of 
 pleading, it may be filed, wlien to the whole bill, at any time 
 before answering. 
 
 Replication to plea — If the complainant regards the plea, 
 though good in form and substance, not true in point of fact, 
 he may take isslie npon 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 . ((^) 
 The eflTect of filing a replication to a plea is, that the com- 
 plainant admits the plea to be good, and the truth of tlie mat- 
 ter alleged, is the only thing in question. (e) When the issue 
 is thus taken upon the plea, the defendant must prove the faot^ 
 it sets up. (_/) If he succeeds in proving the truth of the mat- 
 ter pleaded, the suit, so far as the plea extends, is barred, [a) 
 It puts in issue nothiTig except wltat is distinctly averred in the 
 plea, {h) 
 
 (a) Jefferson v. Dawson, 3 Ch. Cas. 208. 
 (V) Heartt v. Corning, 3 Pai'ge, Ch. R. 566. 
 
 (c) Wall V. Stubhs, 2 Ves. & B. R. 354; Heartt v. Corning, 3 Paige Ch 
 R. 566. 
 
 ((?) Chancery Rule 25; Mitf. Eq. PI. 301-2; 1 Barb. Ch. Pr, 119; 4 Gihu. 57. 
 
 (e) lb.; Harris v. Ingledew, 3 P. Wms. R. 95; Daniels v. Taqqart 1 
 Gill & J. R. 311. ' 
 
 (/ ) 2 Ves. R. 247; Ord v. HuddUslon, Dick. R. 510. 
 
 ig) Wichalse v. Short, 3 Bro. P. L. 558; Hinde, Pr. 225; Fish v. Miller, 
 5 Paige, Ch. R. 26; Bogardus v. Trinity Church, 4 Paige. Ch R 178 > ' 
 
 (h) Hulbiirt V. Britain, Walk. Ch. 454; Fish v. Miller, 5 Paige Ch. R. 
 26; 1 Barb. Ch. Pr. 119; Bogardus v. Trinity Church, 4 Paige, Ch. R. 178. 
 
 8 
 
114 DEFENSE TO A SUIT. 
 
 Pleas — AmDndment— Demurrer not Proper — Argument. 
 
 Amendment of hill after plea. — If the complainant amends 
 his bill after plea tiled, it will be considered as an admission of 
 the validity of the plea, (a) 
 
 Demurrer to plea not proper . — A demurrer to a defective 
 plea should not be interposed. The proper practice is to no- 
 tice the plea for hearing, when its sufficiency will be consid- 
 ered. (J) 
 
 Argument of plea. — The proceedings upon the argument 
 of a plea are nearly the same as those upon the argument of a 
 demurrer. If ajjlea is supported by an answer upon the argu- 
 ment of the plea, the answer may be read to counterprove the 
 plea; and if the defendant appears not to have sufficiently sup- 
 ported his plea by his answer, the plea must be overruled and 
 ordered to stand for an answer only, (c) And where a defend- 
 ant liad answered an original bill, which was afterward 
 amended, whereupon the defendant put in a plea to the amend- 
 ed bill, the complainant was allowed to read the answer to the 
 original bill to counterprove the plea to the amended bill, {d^ 
 Upon the argument of a plea, every fact stated in the bill, and 
 not I'enied by the averments in the plea and by the answer in 
 support of thesame, mustbe taken as true, {e) And if a plea 
 is set down for a gament by the complainant without replying 
 to it, the matter contained in it must ba considered as true. (/) 
 
 Where an issue is taken upon a plea, and the truth of such 
 plea is established 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 defense 
 to the suit, (gr) 
 
 GO Spencer v. Bri/an, 9 Ves. R. 231; 1 Barb. Ch. Pr. 120. 
 
 (h) Lester v. Stevens, 29 111. 155; Thomas v. Brashear, 4 Monr. E,. 65. 
 
 (c) Mitf. Eq. PI. 304; Hildyard v. Cressy, 3 Atk. 304; 1 Barb. Ch. Pr. 
 120; Story's Eq. PI. § 697. As to amending plea see Freeman v. Mich. 
 Slate Bank. Har. Ch. 311. 
 
 (cL) lb. ; Hildyard v. Cressy, 3 Atk. R. 304. 
 
 (e) Bogardus v. Trinity Church, 4 Paige, Ch. R. 178. 
 
 (/) Executors, etc.y. Roberts, 1 Wash. C. C. R. 820; 1 Barb. Ch. Pr. 121. 
 
 [g) Dowes v. McMichael, 6 Paige, Ch. R. 180. 
 
DEFENSE TO A SUIT. , 115 
 
 Pleas— Effect of Allowing the Plea— Plea to the Hearing. 
 
 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 he overruled. 
 
 Effect of allowing the flea.— It 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 aver- 
 ments necessary to support it, be true. If, therefore, the plea 
 is allowed, the complainant may take issue on the plea by 
 replying to it, on payment of the costs of the hearing there- ' 
 upon, (a) 
 
 If the complainant files a replicationto the plea, the defend- 
 ant will be obliged to prove the truths of the fact setup in the 
 plea. (5) 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. (c) 
 
 If the plea has been replied to, the complainant may, if he 
 desires, go into evidence to disprove it; and if he has, in his bill, 
 alleged any matter which, if true, may have the efi'ect of avoid- 
 ing the plea, such as notice, fraud, etc., he may examine any 
 witnesses he may have to support his allegation. And where 
 the plea introduces matters of a negative nature, such as 
 denial of notice, fraud, etc., 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 affirmative of the prop- 
 osition, id) 
 
 Saving the ienefit of a plea to the hearing. — It sometimes 
 
 happens that upon the argument of a plea, the court considers, 
 
 * 
 
 [a) Hulburtv. Britain, Walk. Ch. 454; 1 Barb. Ch. Pr. 121; Story's Eq. 
 PI, § 697. 
 (6) Mitf. Eq. PI. 302. 
 
 (c) 1 Barb. Ch. Pr. 121. 
 
 (d) 1 Barb. Ch. Pr. 121; Eyere v. Dolphin, 2 Ball & B. R. 303; Smmd- 
 trs V. Leslie, 2 Ball & B. 515. 
 
116 DEFENSE TO A SUIT. 
 
 Pleas — Plea to Stand for Answer — Overruling Plea. 
 
 that, although so far as then appears, it may be a good de- 
 fense, yet there may be matters disclosed in evidence which, 
 supposing the matter pleaded to be strictly true, would avoid 
 it. In such a case the court, in order that it may not "pre- 
 clude the question of allowing the plea, directs that tlie bene- 
 fit of it shall be saved to the defendant at the hearing, (a) 
 
 The effect of an order for this purpose is to give the com- 
 plainant an opportunity of replying and going into evidence 
 without overruling the plea. (5) And when the benefit of the 
 plea is reserved to the hearing, such parts of the bill as are 
 covered by the plea are not to be answered (c) and neither par- 
 ty recovers cost until the hearing, (d) 
 
 Allowing plea to stand for answer. — When a plea is per- 
 mitted to stand for an answer, it is determined that it con- 
 tains matter which, if put in the form of an answer, would have 
 constituted a valid defense to some material part of the mat- 
 ters to which it is pleaded as a bar, but that it is not a full 
 defense to the whole matter which it professes to cover, or 
 that it is informally pleaded, or is improperly offered as a 
 defense by way of plea, or that it is not properly supported 
 by answer. But a plea which sets up no valid defense to any 
 part of the matter it professes to cover, will not be permitted 
 to stand for answer, (e) 
 
 Overruling plea. — If upon the argument the Courtis of 
 opinion that the plea can not under any circumstances, be 
 made use of as a defense, it is simply overruled, and the com- 
 plainant may have his costs, {f) 
 
 [a) Mitf. Eq. PI. 303; Axtlen v. Fountaine, Finch, R. 4; 1 Barb Ch. Pr. 
 121-2; Story's Eq. PI. § 696-700. 
 (&) Cooth V. Jackson, 6 Ves. 12, 18. ' 
 
 (c) Gilb. For. Kom. 64. 
 
 (d) HearW v. Corning, 3 Paige, Ch. R. 566; 1 Barb. Ch. Pr. 122; see 
 Payne v. Avery, 21 Mich. 524. 
 
 (e) OrcuU V. Orms, 3 Paige, Ch. R. 459; Lmcraft v. Demprey, 4 Paige, Ch. 
 R. 124; Mitf. Eq. PI. 303; Lube's Eq. PI. 46; 1 Barb. Ch. Pr. 122; SeXlen 
 V. Lewen, 3 P. Wins. R. 239; Story's Eq. PI. § 696-700. 
 
 (/) Story's Eq, PI. §699. 
 
DEFENSE TO A SUIT, 117 
 
 Pleas — When Plea must be Supported by Answer. 
 
 If at the lieai'ing the plea is not found to be true, it will be 
 overruled as false, and the complainant will be entitled to a 
 decree, as on a bill taken as confessed. But in such a case the 
 complainant will not lose the benefit of an answer, if a discov- 
 ery is necessary, (a) 
 
 Courts do not favor a plea in bar; but the overruling of 
 such a plea does not deprive the defendant from insisting on 
 the defense in his answer. An answer overrules a plea to the 
 same part of the bill, (h) 
 
 When plea must he supported hy answer. — Wliere there is 
 any statement or charge in the bill which affords an eq^uit- 
 able circumstance in favor of the complaiiiant's case, against 
 tlie matter pleaded, snch as fraud or notice of title, that 
 statement or cliarge must be denied by way of answer, as well 
 as by averments in the plea, (e) 
 
 In general, an answer in support of a plea can not be requir- 
 ed in those cases where snch negative averments as those above 
 stated are not necessary. When the defense can be made by a 
 pure plea, that is, a plea which merely suggests matter in avoid- 
 ance of the complainant's right to sue, as stated in the bill, an 
 answer in support of tlie plea is not required. In such a case, 
 the defendant, by his plea, admits the complainant's case; and 
 so full and complete is the admission, that if, alter argument, 
 issue be joined upon the truth of the plea, and the plea be 
 found false, there is an end to the dispute, and tlie complain- 
 ant is entitled to a decree upon this implied admission of his 
 case. {cC) 
 
 The cases in which it is necessary that a plea should be sup- 
 ported by answer have been very conveniently divided into, 
 first, those where the complainant admits the existence of a 
 
 («) Hurlbartv. Britain, 2 Doug. Midi. 191; Doies v. McMichael, 2 Paige 
 Ch. R. 345; Broicnsu'ord v. Edwards, 2 Ves. Sr. 247. 
 
 (h) Piatt V. Oliver, 1 McLean, R. 295; Tillinj hasty. Saginaw City Bank 
 Har. Ch. 240. 
 
 (c) 1 Barb. Ch. Pr. 128; Mitf. Eq. PI. 239, 244. 
 
 [d] 1 Barb. Ch. Pr. 128; Wigram on Disc. 36; Wood v. Strickland, 2 
 Ves. & B. 158; 2 Dan. Ch. Pr. 99, 100; Story's Eq. PI. § 670. 
 
118 DEFENSE OF A SUIT. 
 
 Pleas— When Plea must be S upported by Answer. 
 
 legal bar, and charges some equitable circumstances to avoid 
 its eifect; and, second, those wliere tlie complainant does not 
 admit the existence of any legal bar, but states some circum- 
 stances which may be true and to which there may be a valid 
 ground of plea, together with other circumstances which are 
 inconsistent with the substantial validity of a plea, {a) 
 
 An answer in support of a plea is no part of the defense. 
 The defense is the matter set up by the plea; the answer is 
 that evidence which the complainant has a riglit to require 
 and to use, to invalidate the defense made by the plea; and the 
 complainant is entitled to make use of it, not only upon the 
 hearing of the cause, upon the issue raised by the plea, after 
 the plea shall have been decided to be a good bar upon argu- 
 ment, but upon the argument of the plea itself, before any 
 evidence can be given; (5) for the purpose of counterproving 
 the plea, by reading fi-om it any facts or admissions which 
 may negative the matters pleaded or averred in the plea, (c) 
 
 The answer in support of the plea being no part of the de- 
 fense, but only what the complainant has a right to require, 
 to enable him to avoid that defense, it follows that it must be 
 full and clear; otherwise it will not support the plea; for the 
 court will intend all matters alleged in the bill, to which the 
 complainant is entitled to an answer, to be against the pleader, 
 unless they are clearly and fully denied. {3) 
 
 But altiiough an answer in support of a plea is required to 
 be full and clear, yet, if the equitable matters charged are 
 fully and clearly denied, it may be sufficient to support the 
 plea, although all the circumstances charged in the bill may 
 not be precisely answered, (e) In such eases, however, the 
 complainant is not precluded by the circumstances of the 
 
 (a) 1 Barb. Ch. Pr. 128; Hare on Disc. 30; Story's Eq. PI. § 674-5. 
 
 (6) Mitf. Eq. PI. 244, note; Story's Eq. PI. § 671; Foley v. HMU 4 Mylne 
 & Craig, 475. 
 
 (c) BiUyard v. Cressy, 3 Atk. 303; Hony v. Hony, 1 Sim. & Stu. 569; 
 Story's Eq. PI. §672. 
 
 (rf) 1 Barb. Ch. Pr. 129; Mitf. Eq. PI. 241; Hildyard v. Cressy, 3 Atk. 
 R. 303. 
 
 (e) Mitf. Eq.Pl. 299; Waters v. Glanville, Gilb. R. 184; 1 Barb. Ch. Pr. 129. 
 
DEFENSE TO A SUIT. ^^ 
 
 . Answer to a Bill— Nature of. 
 
 court having held, upon the argument of the plea, that the 
 charges in the bill are sufficiently denied to exclude intend- 
 ment against the pleader, from afterward excepting to the 
 sufficiency of the answer, in any point in which he may con- 
 sider it defective, (a) 
 
 Where the complainant waives the necessity of an answer 
 being put in on oath, if the defendant puts in a plea to the 
 bill, he need not snpport it by answer. {!>) 
 
 SECTION V. . 
 
 ANSWEfi TO A BILL. 
 
 Nature of. — Where the case stated in a bill is not sucli as 
 to render a resort to a demurrer or plea necessary or advisable, 
 or if either of these methods of defense has been adopted, and 
 the demurrer or plea overruled, either wholly or in part, the 
 defendant, unless he disclaims, must answer fully all the 
 material matters alleged and stated in the bill. He is not 
 bound, however, to answer allegations which are purely scan- 
 dalous, impertinent, immaterial or irrelevant; (c) nor any- 
 thing which may subject him to a penalty, forfeiture or crim- 
 inal prosecution ; (r^) but if the defendant relies upon this 
 objection, he should specially set it up as a ground fur re- 
 fusing the particular discovery in bis answer, (e) Nor is he 
 bound to answer what would involve a breach of professional 
 confidence. (/") He is not compelled to discover the facts 
 
 (a) Id. 
 
 (6) HearttY. Corning, 3 Paige, Ch. R. 566; see, also, Story's Eq. Pr. 
 §§ 681, 682. 
 
 (c) Story's Eq. PI. § 846; Mitf. Eq. PI. 307, note(h), 316, note (q); Davis 
 T. Collier, 13 Geo. R. 485; Gilkey v. Paige, Walk. Oh. 520. 
 
 {d) Adams v. Porter, 1 Gush. R, 171; Phillips v. Prevost, i Johns. Ch. 
 205; Butler v. Catling, 1 Root, 310; Legoux v. Waute, 3 Har. & J. 184; 
 Brockway v. Copp, 3 Paige, Ch. R. 539; Wolfe v. Wolfe, 2 Har. & G. 382; 
 Hayes v. Caldwell, 5 Gilm. 35. 
 
 (e) Adams Y. Porter, 1 Cash. 171; Story's Eq. PI. § 846; Slomany. Kelly, 
 3 Younge & Coll. 673. 
 
 if) Story's Eq. PI. § 846; Strafford v. Hogan, 2 Ball & Beatt. R. 164; 
 Greenough-v. Gaskell, 1 Mylne & Keen, 99; Jones v. Pugh, 12 Sim. 470- 1 
 Greenl. Ev. § 237; Phillips v. Prevost, 4 Johns. Ch. R. 205; Foss v. Haynes 
 81 Maine, 81; Leggett v. Postley, 2 Paige, Ch. 599. 
 
120 DEFENSE TO A SUIT. 
 
 Answer to a Bill — Nature of. 
 
 respecting liis own title, but merely those which respect the 
 title of the complainant, (a) In each of these cases, if the de- 
 fendant does not tliink proper to defend himself from a dis- 
 covery by ademiiiTer, or by a plea, he has been permitted by 
 answer to insist that he is not obliged to make the dis- 
 covery. In each of these cases, the complainant may except 
 to the defendant's answer as insufficient; and upon that ex- 
 ception, it will be determined by the court whether the de- 
 fendant is, or is not, obliged to make the discovery, (b) 
 
 The answer generally traverses the allegations of the bill, or 
 some of them, and alleges other facts and circumstances to 
 show the rights of the defendant in the subject of tlie suit. 
 Sometimes it admits the truth of the case made by the bill, 
 and either with or without stating additional facts, submits the 
 questions arising upon the case thus made, to the judgment of 
 tlie court. In all cases where relief is sought, an answer con- 
 sists of two parts; Jirsi, the defense to the case made by the 
 bill, and, second, the reponse of the defendant to the interrog- 
 atories of the complainant, (c) 
 
 Where a defendant submits to answer, he must make a full, 
 frank and explicit disclosure of all matters material or neces- 
 sary to be answered, with all their material circumstances, 
 M'hother resting within his own knowledge, or upon his in- 
 formation and belief, ((^) or he must deny all knowledge, with 
 rogard to it. If he has information, aside from the bill, he 
 must state his belief, {e) If the defendant has no information 
 
 (ff) Story's Eq. PL §§ 846, 572, 825; Hare on Disc. 268-273; Wigram on 
 Disc. 21, 82, 111, 113, 147-149, 195, 196, 1st ed.; Id. 261-346, 2d ed.j Stonj 
 V. Randall, 17 111. 467. 
 
 (6) Mitf. Eq. PI. 307, 308; Story's Eq. PI. § 846. 
 
 (c) Barton's suit in Eq. 106. 
 
 (d) GUkeii V. Paige, Walk. Oh. 520; Dan. Ch. Pr. 487; Barton's suit in Eq. 
 106; Hagthorp v. Hook, 1 Gill & J. 270; Bank of Utica v. Messereau, 7 
 Paige, Ch. R. 517; Supervisors, etc. v. M. S W. E. E. Co. 21 111. 365; 
 Woods V. Morrell. 1 Johns. Ch. R. 103; Devereaux v. Cooper, 11 Vt. 103; 
 Hopkins V. Medley, 97 III. 403. 
 
 (c) Devereaux v. Cooper, 11 Vt. 103; Bradford v. Geiss, 4 Wash. C. C. 
 R. 513; Brooks v. By am, 1 Story, 226; Smith v. Lasher, 5 Johns. Ch. R. 
 247; Tradesman's Bank v. Hi/att, 2 Edw. Ch. 195; Norton v. Warren, 3 
 Bdw. Ch. 106; Eohinson v. Woorfg'afe, 3 Edw. Ch. 422; Neal\. Hagthorp, 
 
.DEFENSE TO A SUIT. IlZl 
 
 Answer to a Bill — Nature of. 
 
 on the subject, he must state that he has no information, or is 
 utterly ignorant of the fact; (a) and if the information sought 
 is within his reach, he is bound to obtain it, and state it in liis 
 answer, (b) It will not be sufficient to allege that a third per- 
 son who is interested in the suit, can prove the fact sought to 
 be discovered, (c) 
 
 A fact alleged in the bill, and admitted in the answer, is 
 established; but every fact alleged in the answer, in avoid- 
 ance of such fact, must be pi'oved like a plea, if the answer 
 is traversed, {d) And where replication has been filed, allega- 
 tions in the answer not responsive to anything in the bill, can 
 not benefit the defendant at the hearing; (e) and if the answer 
 is defective or evasive, it is a ground of exception, but not 
 for an implied conclusion against the defendant. (/") 
 
 Tiiere is this difference in the systems of pleading in equity 
 and at law: whatever is not admitted by the answer must be 
 ]iroved by the complainant, although it is not denied ; whereas 
 at law everything which is not denied is by implication, ad- 
 mitted to be true, (g) 
 
 A mere general denial of confederacy and fraud, usual in an 
 answer, is not sufficient, where particular acts of fraud are 
 charged in the bill; (A) and a demurrer to a bill containino- 
 such charges would be overri]led. (^) ; 
 
 3 Bland. 551; BaiUij v. Wilson, 1 Dev. & Bat. Ch. 182; Sloan v. Little, 3 
 Paige, C. B. 103; Champlin v. Chmnplin, 2 Bdw. Ch. 362; Eohertson'v. 
 BingUfi, 1 MoCord, Ch. 833; King v. Ray, 11 Paige, Ch. R. 235; Walker 
 V. Walker, 3 Kelly, 302; Smith v. Loomis, 1 Halst. Ch. N. J. 60; Jones 
 V. Hawkins, 3 Ired. Eq. R 110. 
 
 {(() Kittredge v. Claramount Bank, 1 W. & M. 244. 
 
 (h) Swift V. Su-ift, 13 Geo. 140. 
 
 (c) Bell V. Pomeroy, 4 McLean, 57. 
 
 (d) McDonald v. McDonald, 16 Vt. 630; Hardwick v. Bassett, 25 Mich. 
 149; Emerson v. Atwaler, 12 Mich. 314. 
 
 (c) Wakeman v. Graver, 4 Paige, Ch. R. 28. As to what is responsive to 
 a bill, see Mandeitille v. Comstock, 9 Mich. 536. 
 
 (/) Blaisdell v. Stevens, 16 Vt. 179; Phillips m. Overton 4 Hey 291- 
 Eq. Draft. 563. 
 
 (g) Hopkins v. Medley, 97 111. 402. 
 
 [h) Fellows V. Fellows, 4 Cowen, 6'-'2; Bailey v. Wright, 2 Bond. 181. 
 
 ((•) Burnley y.Jeffersonville.Z McLean, 336; see, also, Lewis v.Baird, 8 
 McLean, 56; Gray v. Began, 23'M.iss. Cush. 304. 
 
122 DEFENSE TO A SUIT, 
 
 Answer to a, Bill — Nature of. 
 
 "Where the defendant, in his answer, admits facts which 
 render the transaction in question legally or cbnstructively 
 fraudulent, a general denial offraud is unavailing; {a) and the 
 answer must positively and directly deny the allegations of 
 the bill. (5) If an answer is held to be insufficient, it is treat- 
 ed as no answer; and if the defendant neglects to make a 
 sufficient answer, as ordered, the bill may be taken j>ro confesso 
 and a final decree rendered, (o) 
 
 When a bill charges the defendant with notice of a par- 
 ticular fact, an answer must be given without a special inter- 
 rogatory; but a defendant is not bound to answer an inter- 
 rogatory not warranted , by the charges in the bill, (<Z) aud 
 what is responsive to a bill in the answer, is to be determined 
 by the bill, and not by the interrogatories; [e) and where the 
 defendant pleads the statute of limitations in answer to a bill 
 in equity, he must answer all the charges in the bill which 
 may avoid the bar, by showing a new promise; but he 
 need not answer the original cause of action, (y) The rule 
 for determining whether an answer to any particular aver- 
 ment in a bill is necessary, is to ascertain whether it is ma- 
 terial to the complainant to enable him to obtain the relief he 
 seeks ; {g) a court will compel an answer to all the allegations 
 of a bill tliat require proof, (/i) 
 
 A defendant shall be at liberty, by answer, to decline an- 
 swering any interrogatory, or part of an interrogatory, from 
 answering which he miglit have protected himself by demur- 
 rer; and he shall be at liberty so to decline, notwithstanding 
 he shall answer other parts of the bill from which he might 
 have protected himself by demurrer. (*) 
 
 i 
 
 (a) Hawley v. Cramer, 4 Cowen, 717; Wood v. Mann, 1 Smnner, 506. 
 
 (b) Taylor v. Luther, 2 Sumner, 228; PettU v. Candler, 3 Weud. 618. 
 
 (c) Buckingham v. Peddicord, 2 Bland, 447. 
 
 (d) Mechanics Bank v. Lynn, 1 Pet. 376; Brooks v. By am, 1 Story, R. 
 226; itethodist E. Church v. Jaques, 1 Johns. Ch. K. Oi). 
 
 (e) McDonald v. McDonald, 16 Vt. 630. 
 ( f) Chapin-v. Coleman, 11 Pick. 331. 
 ig) Batterson v. Ferguson, 1 Barb. 490. 
 (h) S'acy v. Randall, 17 111. 467. 
 
 (0 Rule 44, Rules of Pr. 0. E. of U. S. 1870, and Rule 43 Chancery Rule 
 Mich.; Gllkeyy. Paige, Walk. Ch. 520. 
 
DEFENSE TO A SUIT. 123 
 
 Answer to Bill— Exceptions to Answers— Fraud— Mode of Answering;. 
 
 If the defendant desires to raise the objection to the bill, 
 that the complainant has an adequate remedy at law, he, should 
 do so by demurrer, or at least it should be specially relied on 
 in the answer. The objection can not be raised for the first 
 time at the hearing, {a) 
 
 Chancery Rule 18 provides that " if no replication is filed 
 the matter of defense set up in defendant's answer, will, on 
 the Hearing, be considered as admitted by the complainant, 
 although the answer is not under oath." 
 
 Exceptions to answers will be considered in a future chap- 
 ter, (b) 
 
 Fraud, how alleged. — If a defendant wishes to rely upon a 
 matter of fraud on the part of the complainant, the circum- 
 stances should be fully and specifically stated; (c) as no pre- 
 sumption is to be indulged in favor of an answer, any more 
 than in other pleading, {d) 
 
 Mode of answering. — An answer is the most usual method, 
 of defending a bill in chancery, and it may be put in either to 
 the whole bill, or to such parts of it as are not covered by 
 demurrer or plea. It is capable of embracing more circum- 
 stances than a plea, and for this reason may be used with much 
 greater propriety in cases where the defendant is not anxious 
 to prevent a discovery, although the plea might be a complete 
 bar. But where, by introducing additional circumstances, he 
 has a good opportunity of showing his case in a -more favorable 
 light, the answer is the best mode ot defense, {e) 
 
 An answer has a double purpose; jirst, that of answering 
 the complainant's case as made by the bill; and second, that of 
 stating to the court the nature of the defense upon which the 
 
 (o) Tarbell-7. Boivman, 103 Mass. 341; Creely Y.Bay State Brick Co. 
 103 Mass. 514. 
 (J) Post, oh. viii. 
 
 (c) Fitzpatrick v. Beatty, 1 Gilm. 454; Mechanics' Bank v. Levy, 1 
 Edw. Ch. 316. 
 
 (d) Mahar v. O'Hara, 4 Gilm. 424. 
 (c) 1 Barb. Ch. Pr. 130. 
 
124 DEFENSE TO A SUIT. 
 
 Answer to Bill — Affirmative Relief not Allowed on Answer— Frame of Answer. 
 
 defendant means to rely ; and in this respect it fulfills the dnty 
 of a plea, or a series of pleas, either denying facts upon which 
 the coiipplainant's equity, as stated in the bill, arises, or by 
 confessing such facts, and avoiding them by the introduction 
 of some new matter, from which contrary inferences may be 
 drawn. The conclusions of law from the facts stated sliould 
 not be stated. The facts intended to be relied on should be 
 clearly and succinctly alleged; and the inference of law frona 
 them should be left to the court after argument. The defend- 
 ant may set up any number of defenses in his answer, as a 
 consequence of the same state of facts, which his case will' 
 alloAv, or ingenious counsel can suggest, but the defenses must 
 be consistent with each other, {a) If they are inconsistent, or 
 alternative, they are bad, (b) and the result will be to deprive 
 liiui of the benefit of either, and to entitle the complainant to 
 a decree, (c) 
 
 The defendant may, in his answer, rely on any matter which 
 shows that the complainant is not entitled to the relief he 
 claims by his bill. If he succeeds in establishing such a 
 defense, there will be a denial of the relief sought and a dis- 
 missal of the bill. The answer, however, can be used only 
 for the purpose of defense. It can not be used for relief. 
 
 Ajftrmative relief not allowed on answer. — No aftirinative 
 relief can be granted to a deiendant on an answer alone. To 
 obtain such relief he must exhibit his cross-bill, {d) 
 
 Frame of art answer. — An answer always begins with its 
 title, specifying of which of the defendants it is the answer, 
 and the names of the complainants in the suit in which it is 
 
 (a) Stone v. Moore, 26 111. 165; Craig v. People, etc. 47 111. 487; 2 Anst. 
 397, 386; McCle. 317; 2 Dan. Ch. Pr. 814-816. 
 {V) Jesus College v. Gibbs, 1 Younge & Coll. 145; 6 Jr'rice, 004. 
 
 (c) 2 Dan. Ch. Pr. 243. 
 
 (d) Turleton v. Vietes, 1 Gilm. 470; Edwards v. Helm, 4 Scam. 143; 
 McConnell v. Hodson. 2 Gilm. 640; Mason v. McOirr, 28 111. 322; McCagg 
 V. Heacock, 42 111. 153; Hanna v. Ratekin, 43 111. 462; Tittswortk v. Stout, 
 49 111. 78; Conw II v. McCowen, rs 111. 363; Howeit v. 6V%, 54 111. 151; 
 Patterson v. McKinnei/, 97 111. 41; Iberg v. Webb, 96 111. 415. 
 
DEFENSE TO A SUIT. 125 
 
 Answer to Plea — ^Answers may be Joined. 
 
 filed as an answer, {a) It is irregular, and may be rejected, 
 if it is not properly entitled, and does not show what bill it 
 purports to answer, (h) 
 
 Answer/^ may he joined.^-Two or more defendants may join 
 in the same answer, and where their interests are the same, 
 and they appear by the same solicitor, they ought to do so, 
 unless some good reason exists for their answering separately; 
 (c) for otherwise the non-joinder may affect them in the 
 matter of the costs at the final hearing, (d) It may, therefore, 
 be stated as a general rule, that the defendants should answer 
 jointly, unless their interests are different, (e) 
 
 The answer of joint defendants need not be joint and sev- 
 eral.(/) 
 
 One defendant may answer by adopting tlie answer of his 
 co-defendant; {g) and in a bill against husband and wife a 
 joint answer should be put in, brt if the wife refuses to join, 
 the husband may answer separately. (A) 
 
 The answer is entitled, " The answer of C D, defendant, to 
 the bill of complaint of A B, the complainant." (*) After the 
 title of the answer, it proceeds to reserve to the defendant all 
 advantages which might be taken by exception to the bill; a 
 form which is intended to prevent a conclusion that the de- 
 fendant, having submitted to answer the bill, admits every- 
 thing, which by his answer he does not expressly controvert, 
 and especially such matters as he might have objected to by 
 demurrer or by plea. (_;') It will not however, in general, have 
 
 (a) Coop. Eq. PI. 32:^; Story's Eq. PI. § 869. 
 
 (6) Supervhors Fulton Co. v. M. <&. W. R. R. Co. 21 111. .365; Peiters v. 
 Thompson, Coop. 249; Griffiths v. Wood, 11 Ves. 62. 
 
 (c) Van'Sandonv. M ore, 1 Russ. 441: 2 Dan. Ch. Pr. Cli. 15, § 2, pp 
 265, 266; Story's Eq. PL § 869. 
 
 id) 2 Dan. Cli. Pr. 265, 266. 
 
 (e) Story's Eq. PL § 869; Mitf. Ch. PL 313, 314; Griffiths v. Wood 11 
 Ves. 62. 
 
 (/) Davis V. Davidson, 4 McLean, 136; Mastersonv. Craig, 5 Litt. 39. 
 
 {g) Binney's Case, 2 Bland, 99. 
 
 {h) 1 Paige, C'a. E. 421; Robins v. Abraham, 1 Halst. Ch. N. J. 16; Id. 61. 
 
 W 2 Dan. Ch. Pr. 266; Story's Eq. PL § 870. 
 
 U) Coop. Eq. PL 323; Story's Eq. PL § 872, 870; Mitf. Eq. PL 313, 614- 
 "riffiths y. Wood, 11 Ves. 62. 
 
126 DEFENSE TO A SUIT. 
 
 Answer to a Bill — Swearing to Answer. 
 
 that effect, (a) The substance of the answer then follows, in 
 which the matters of the bill, with the interrogatories founded 
 thereon, are answered, one after the other, together with siich 
 additional matter, as the defendant thinks necessary to bring 
 forward his defense, either for the purpose of qualifying, or of 
 adding to, the case made by the bill, or of statin'g a new case 
 on his own behalf, (b) This is followed by a general denial 
 of all the unlawful combinations charged in the bill, and of 
 all other matters therein contained, and not specially traversed 
 or admitted. 
 
 To so much of the bill as is material and necessary for the 
 defendant to answer, he must reply directly, without evasion, 
 and not by way of negative pregnant. He must not answer 
 the charge merely literally, but he must confess or traverse the 
 substance of each change positively and with certainty. Par- 
 ticular and precise charges must be answered particularly and 
 positively, and not in a general manner, even though the gen- 
 eral answer may amount to a full denial of the charge, (c) 
 But if any of the particiilar inquiries in the bill are as to mat- 
 ters which are totally immaterial to the case, the defendant 
 need not answer them, {d) 
 
 If the charge in the bill embraces several particulars, the 
 answer should be in the disjunctive, denying each particular; 
 or admitting some and denying the others, according to 
 fact, (e) 
 
 It may be observed, that the general rule that nothing is to 
 be presumed in favor of a pleading, is applicable to an answer 
 in chancery, (y) 
 
 Swearing to answer. — The statute of Michigan requires 
 every answer to be verified by an oath or aifirmation, except 
 
 (ff)Id.; Stoiy's Eq. PI. §§ 694.870; Beame'sPl. in Eq. 46, 47. 
 
 (6) Coop. Eq. P). 323-325; Mitf. Eq. PL 313-31.5; Story's Eq. PI. § 870. 
 
 ic) Jones v. Wing, Har. Ch. 301; Woods j. Morrell, IJohns. Ch. R. 
 103; Stacy v. Randall, 17 111. 467; Parkinson v. TruesdaU, 3 Scam. 369; 
 Tai/lor V. Luther, 2 Sumner, 228; 6 Ves. 792; 3 Litt. 80; 1 Sim. & Stu. 235. 
 
 (d) 1 Barb. Ch. Pr. 136; Daniel v. Bishop, 13 Price, 15. 
 
 (e) Davis v. Mapes, 2 Paige, Ch. R. 105. 
 (/ ) Mahar v. O'Hara, 4 Gilm. 424. 
 
DEFENSE TO A SUIT. 127 
 
 Answer to a Bill — Swearing to Answer. 
 
 ' 
 
 where the complainant waives the oath. Where the bill" -is 
 for discovery only, the oath or affirmation can not be waived. 
 
 "If the complainant waives the necessity of the answer 
 being made on the oath of the defendant, it must be distinctly 
 stated in the bill. When the answer is put in without oath, 
 it may be excepted to for scandal and impertinence; but the 
 complainant shall not be at liberty to except thereto for in- 
 sufficiency; but all material allegations in the bill, which are 
 not answered and admitted, may be proved by him in the 
 same manner as if they were distinctly put in issue by the 
 answer," (a) 
 
 Rule 19 says: " The plea or answer of the defendant maybe 
 sworn to before any officer authorized by thelaws of this State to 
 administer oaths or-take affidavits. It may also be sworn to 
 before any judge of any court of record in the United States; 
 but if sworn to before said judge in any other State or terri- 
 tory in the United States, his certificate shall be accompanied 
 by the certificate of the clerk or deputy clerk of such court, 
 under the seal thereof, showing the official character of such 
 judge, and the genuineness of his signature. Such pl,ea or 
 answer may be sworn to in any foreign country, before any 
 minister or other diplomatic agent or counsel of th? United 
 States, or any notary public; but the certiiicate of such notary 
 shall be made under his notarial seal." 
 
 Where the oath is waived in the bill, it would be regarded 
 as an improper practice for a solicitor to put in an answer 
 under oath. (5) 
 
 An answer filed without being sworn to, may be treated as a 
 valid answer by the complainant, and in th"at case will have 
 the same effect in favor of the defendant as if sworn to. (c) If 
 
 (o) Comp. Laws, 1871, § 5067; Chancery Rule 18; Moore v. Hunter, I 
 Gilm. 317; Willis v. Henderson, 4 Scam. 14; Harris tt. Beese, 5 Gilm. 212. 
 
 (6) Willenborg v. Murphy, 36 111. 344; Wallivork v. Derbi/, 40 111. 527; 
 Moore v. Hunter, 1 Gilm. 317; Hopkins v. Granger, 52 111. 504. 
 
 (c) Fulton Bank v. Beach, 3 Paige, Ch. R. 307; Contee v. Dawson, 2 
 Bland, 264; Moore v. Hunter, 1 Gilm. 317; Reed v. Warner, 5 Paige, Ch. 
 R. 650; Denison v. Bassford, 7 Paige, Ch. R. 370; Stevenson v. Mathers 
 67 111. 123; Adlard v. Adlard, 65 111. 212. 
 
128 DEFENSE TO A SUIT. 
 
 Answer to a Bill^Waiver of Oath. 
 
 the affidavit is insufficient, objection must be taken before tlie 
 fmal hearing, {a) otherwise it is a waiver of the objection. (J) 
 
 Where the affidavit is waived, the answer mustk notwith- 
 standing, be signed; (e) and if the interests of the defendants 
 are separate and distinct, an answer on oath may be waived 
 as to one defendant without such waiver as to others, {d) 
 
 The defendants may answer jointly, or jointly and severally, 
 or separately; each defendant must, however, swear to his 
 answer, unless oath is waived, or it will be no answer as to him. 
 
 Waiver of oath.— The statute of Michigan provides that, 
 when a bill shall be filed in a court of chancery, other than for 
 discovery only, the complainant may waive the necessity of 
 the answer being made on the oath of the defendant; and in 
 such cases, the answer may be made without oath, and shall 
 have no other or greater force as evidence than the bill, {e) 
 If the complainant waives an answer under oath, under this 
 section of the statute, he must waive it to the whole bill. 
 And after the defendant has answered the original bill on 
 oath, the complainant can not avoid the etfect of such answer 
 by filing an amended bill waiving the oath. The answer 
 under oath to the original bill would still be evidence on the 
 hearing of the cause, so far as responsive to the bill, (y ) 
 
 Where an answer is not under oath, it is a mere pleading, 
 serving only to make up an issue; {g) and swearing to an an- 
 swer, when the oath is waived, will give it no greater eflFect on 
 the hearing than when not sworn to; (A) but the complainant 
 
 (a) Bate v. McLaughlin, 1 A. K. Marsh. 207. 
 
 (6) Geizer v. Burk, 3 S. & M. 439. 
 
 [c) Kimball v. Ward, Walk. Ch. 439. 
 
 {d) Bulkley v. Van Wyek, 5 Paige, Ch. 536; Morse v. Hovey, 1 Sandf. 
 Ch. R. 187. 
 
 (e) Comp. Laws 1871, § 5067; Chancery Rule, 18. 
 
 (/) Wylder v. Crane, 53 111. 490; Jefferson v. Kenvard, 77 111. 246; 
 Knisely v Sampson, 100 III. 573. 
 
 (g) Morris V. Hoyt, 11 Mich. 9; Chambers v. Rowe, 36 111. 171; Willen- 
 borg V. Murphy, Id. 344; Wallwork v. Derby, 40 111. 527; Hopkins v. 
 Granger, 52 111. 504; Willis v. Henderson, 4 Scam. 13. 
 
 {h.) Moore v. Hunter, 1 Gilm. 317; Andrews v. Knox Co. 70 III. 65. 
 
DEFENSE TO A SUIT. 129 
 
 Answer to Bill — Eflfect if sworn to — As Evidence against Co-Defendant. 
 
 may availhirriself of any admission and allegation therein to 
 make out his case, {a) 
 
 Effect of sworn answer as evidence. — If an answer is re- 
 quired under oath, and is responsive to tlie allegations of the 
 bill, it must be received as true, unless it is overcome by evi- 
 dence preponderating in complainant's favor. J3ut new mat- 
 ter brought into the case by. the answer is not evidence for the 
 defendant. (5) Such answer is not equal to two witnesses, but 
 it must be overcome bj' two witnesses, or by one witness and 
 strong corroborating circumstances, (c) It is, however, only 
 where the defendant states facts within his knowledge, that 
 his answer must be overcome by evidence equivalent to the 
 testimony of two witnesses, ((f) 
 
 When answer is evidence against a co-defendant. — The 
 answer of one defendant can not be read in evidence against 
 another, except in particular cases, as where such defendants 
 are partners, or where one has acted as the agent of the other 
 in any transaction to which the answer may I'elate, and the 
 agency or partnership, at the time of iiling tlie answer, still 
 exists, {e) 
 
 (a) Diirfee v. McClurg, 6 Mich. 223: Smith v. Clarke, 4 Paige, Ch. B. 
 368; Union Bank v. Gear//, 5 Pet. 99, 110-112; 1 Clark's Ch. B. 63; Sto- 
 ry's Eq. PI. § 875, and cases cited. 
 
 (6) Schwarz v. Wendell, Walk. Ch. 267; Attornerj-general v. Oakhiiicl 
 Count!/ Bank, Walk, Ch. 90; Van Dyke v. Davis, 2 Mich, 144; Hunt v. 
 Thorn, 2 Mich. 213; Robinson v. Cromelin, 15 Mich. 316; Jioberts\. Milep, 
 12 Mich. 297; Stouffer v. Maehen, 16 111. 653; PheJjjs v. White, 18 111. 41: 
 Wynkoop v. Cowing, 21 111. 571; Pantonv. Teft, 22 111. 366; Gregg v. lit'n- 
 frews, 24 111. 620; Mijers v. Kinzle, 26 III. 36;' Bantainv. Woo/, 29 111. 
 504; Trout v. Emmonn, Id. 433; Barton v. Moss, 32 111. 50; Dunlap v. Wil- 
 son, Id. 517; Cassell v. Ross, 83 111. 246; Mat-tin v. Eversol, 36 111. 22?: 
 WigUman v. Hart, 37 111. 123; Maple v. Scott, 41 111. 50; WiUey v. Web- 
 ster, 42 111. 108; Russell v. Russell, 54 III. 250; O'Brien v. Fry, 82111. 274; 
 assna V. Walters, 100 111. 623; Bennett v. Walker, 100 HI. 525. 
 
 (c) Morrison v. Stewart, 24 111. 25; Hopkins v. Grander, 52 111. 504. 
 
 (d) Fryrear v. Lawrence, 5 Gilm. 325; Hitt v. Ormsb-e. 14 III. 2.35. 
 
 (e) Emerson v. Atwater, 12' Mich. 314; Rust v. Mansfield, 25 111. 33S ; 
 Pensonau v. Pulliam, 47 III. 58. 
 
 9 
 
130 DEFENSE TO A SUIT. 
 
 Answer to a Bill— Answer to Deoeasad Ancestor — Adm ssions in Answer. 
 
 Answer of deceased ancestor as evidence. — Tlie answer of a 
 deceased ancestor may be read in evidence against the heirs or 
 devisees, where tliey claim nnder him in an action brought for 
 the same subject-matter, {a) 
 
 Admissions in answer. — Wliere a fact is alleged in the bill, 
 and admitted by the answer, the admission is conclusive, and 
 evidence tending to dispute it- will not be considered. (5) 
 Nothing will be regarded as admitted by the answer unless 
 expressly admitted, for^ failure to admit facts set'up in a bill 
 is equivalent to a denial. But, if the answer by implication 
 admits the allegations of the bill, it relieves the complainant 
 from the burden of })roof. {c) If an admission has been made 
 in an answer improvidently and b^' mistake, the court will 
 r'ilieve the party making it from its effect, by an order 
 directing so mucii of the answer as contains the admission to 
 be treated as no part of the record, but, before such an order 
 will be made, the court must be satisfied by affidavit that the 
 admission was made under a misapprehension or by mistake. 
 Courts exercise a liberal discretion in relieving from the effect 
 of admissions in answers not under oath, which are mere plead- 
 iugs, and are frequently signed by counsel; but where an answer 
 is under oath, great caution is observed. If the relief sought is 
 from an admission of law, it may be sufficient to show that 
 he was erroneously advised by his solicitor in that regard, but 
 where the relief sought is from an admission of fact, it should 
 be shown that the answer was drawn with care and attention, 
 stating upon information and belief such facts as were not 
 within the defendant's own knowledge. No court ought to 
 relieve a party from the consequences of a reckless' misstate- 
 ment under oath. It should also be shown that the fact mis- 
 stated was not one within the defendant's own knowledge, and 
 that he was erroneously informed in regard to it, and made 
 
 (a) Rust V. Mansfield, 25 111. 338; see, also, 42 Mich. 477. 
 
 (b) Weider v. Clark, 27 111. 251. 
 
 (c) Morris v. Morris, 5 Mich. 171 ; Young v. McKee, 13 Mich. 552; 
 Hardwick v. Bassett, 23 Mich. 149; Shook v. Proctor, 27 Mich. 349. 
 
DEFENSE TO A SUIT. 131 
 
 Answer to a BUI — Answei- of Corporation — Answer of Infant Defendants. 
 
 oath to the answer, honestly believing such erroneous infor- 
 mation, {a) 
 
 Where a defendant has by a mistake or misapprehension of 
 tlie facts, or of his rio;]its, made an admission in his answer 
 inconsistent witli the truth, he may file a supplemental answer 
 under which he may prove that the fact was contrary to the 
 admission. (5) 
 
 Answer of a corporation. — The answer of a corporation 
 a<rgregate is not required to be sworn to, but is attested by 
 tlie corporate seal. If a discovery is sought, individual cor- 
 porators may be sworn, but they must be named as defendants 
 in the bill, (c) 
 
 Answer of infants and insane defendants. — Gttaedian ad 
 LITEM. — The statute of Michigan provides that after the 
 issuing and service of process against any infant defendant, 
 the suit shall not be further prosecuted until a guardian for 
 such infant shall have been appointed. So, too, a guardian 
 may be appointed by the court to protect the rights of an in- 
 sane defendant, [d) 
 
 A guardian ad litem should make himself familiar with the 
 condition of the case, and the rights and interests of the infant 
 defendants; and if the circumstances and the infant's interests 
 require it, he should make a vigorous defense, (e) Nothinw 
 can be admitted by the infant, nor liis guardian ad litem for 
 
 («) Maker Y. Bull, 89 111. 531; Snydam y. Truesdale, 6 McLean, 459; 
 Coquilland v. Snydam. 8 Blackf. 24. 
 
 (V) Hardwicky. Bassett, 25 Mich. 149; Hardwickv. Bassett, 29 Mich. 17- 
 Hitghes y. Bloomer, 9 Paige, Ch. R. 269; Bowan y. Gross, 4 Johns. Ch. R. 
 375; Mardock's Case, 2 Bland, 461; McKim v. Thompson, 1 Bland, 160; 
 Gary v. Ector, 7 Geo. 99. 
 
 (c) Beecher v. Anderson, 45 Mich. 543, and cases there cited; Vermilyea. 
 Y. Fulton Bank, 1 Paige, Ch. R. 37; Angell & Ames on Corp. 595; Super- 
 visors, etc., Y. M. (& W. R. E. Co. 21 111. 36 ; 1 Johns. Oh. R. 366. 
 
 ((?). Comp. L. 1871, §§ 6537, 5844; see Foreman y. Stickney, 77 111. 575- 
 Lloyd V. Malone, 23 111. 43. 
 
 (e) McClay v. Norris, 4 Gilm. 370; Sconce y. Whitney, 12 111. 150; Cost 
 V. Rose, 17 111. 278; Rhoads y. Rhoads, 43 III. 239; Peak y. Pricer 21 111 
 164. 
 
132" DEFENSE TO A SUIT. 
 
 Answer to a Bill — Answer to Infants and Insane Defendants. 
 
 him; but every allegation in the bill must be strictly proved, 
 so far as the infant is concerned ; (a) and the record of the 
 proceedings must furnish proof to sustain a decree against 
 infant defendants, whether the guardian ad litem ansvper or 
 not, or whether he admits or denies the allegations. (J) 
 
 Unless a guardian ad litem is appointed for infant defend- 
 ants, all proceedings against them will be erroneous, [c) But 
 if they are not in court for want of service, {d) or notice by 
 publication, [e) the appointment of a guardian ad litem would 
 be void. 
 
 A bill can not be taken as confessed against a defendant 
 who is. an infant or insane, under any circumstances. (_/) 
 
 It is the duty of a guardian ad litem, of infant defendants 
 to submit to the court, for its consideration and decision, every 
 question involving the rights of his ward. But the court will 
 protect such rights where they are manifestly entitled to some- 
 thing, altliough their guardian ad litem neglects to claim it 
 in their behalf {g) 
 
 (o) Thayer v. Lane, Walk. Ch. 200; Chandlery. McKinnefj, 6 Mich. 219; 
 Cooper V. Mayheiv. 40 Mich. 528; Shecihan t. Judge Wayne, Ci cult, 42 
 Mich. 69; Hitt v. Ormshee, 1 111. 166; Ttittle v. Garrett. 16 111. .354; Lloijd 
 V. Ma7o>tc, 23 111. 43; Eeddick v. State Bank, 27 111. 148; Mastersony. 
 Winswould, 18 111. 48; Carr v. Fielden, Id. 77; Tihhs v. Allen, 27 111. 129; 
 Hees V. Voss, 52 111. 474; Fischer v. Fischer, 54 111. 231. 
 
 (6) Mastersony. WiHwoirW, 18 111. 48; Carry.Fielden,l&.ll; Chaffin 
 V. Heirs of Kimhall, 23 111. 36; Gtndtj \. Hall, 36 111. 313; Tibbs v. Allen, 
 27 111. 129. 
 
 (c) Hall-y. Davis, 44 111. 494; Quigleji v. Roberts, Id. 503; Sullivan v. 
 Sullivan, 42 111. 315; McDamel v. Canell, 19 111. 226; Peck v. Shasted 21 
 111. 137. 
 
 id) Clark v. Thompson, 47 111. 2-5. 
 
 (e) McDermaid v. Russell, 41 111. 490; Hichenbotham v. Blackledge, 54 
 111. 318. 
 
 (/) McClay v. Norris, 4 Oilm. 370; Sconce v. Whitney, 12 111. 150; Cost 
 T. Rose, 17 111. 278. 
 
 (g) Stark v. Brown, 101 111. 396. 
 
DEFENSE TO A SUIT. 133 
 
 Forms of Answer— The Titles— Title of Answer by Defendant. 
 
 FORMS OF AN8WEE. 
 
 Miscellaneous forms of commencements and conclusions of 
 
 answers. 
 
 I. THE TITLES. 
 
 Wo. 49. Title of answer 'by one defendant. 
 
 Tlie answer of C D, the defendant, to the bill of complaint 
 of A B, the complainant. 
 
 No. 50. Title of a joint and seve7'al answer. 
 
 The joint and several answer of C D and E F, the defend- 
 ants, to the bill of complaint of A B, the complainant. 
 
 Wo. 51 . Title of the answer of one of several defendants. 
 
 The answer of C D, one of the defendants, to the bill of 
 complaint of A B, the complainant. 
 
 JVo. 52. Title of answer to a-mended hill. 
 
 The answer of D, the defendant, to the amended bill of 
 complaint of A B, the complainant. 
 
 No. 53. Title of answer where exceptions have heen taken 
 to a form of answer, and the Mil has also been ameiided. 
 
 The further answer of D, one of the defendants to the 
 orio-inal bill, and his answer to the amended bill of complaint 
 of A B, the complainant. 
 
 No. 54. Title of answer to a sujyplemental bill. 
 
 The answer of C D, the defendant to the supplemental bill 
 of complaint of A B, the complainant. 
 
 No. 55. Title of amended answer. 
 
 The amended answer of C D, the defendant, to the bill of 
 complaint of A B, the complainant. 
 
 No. 56. Title of answer iy infants by their guardian ad 
 
 litem. 
 
 The answer of C D, an infant nnder the aaje of twenty-one 
 years, by E F, his guardian ad litem, to the bill of complaint 
 of A B, the complainant. 
 
134 DEFENSE TO A SUIT. 
 
 Forms of Answer — Commencement — ^Common Forms in Framing Anwers. 
 
 n. THE COMMENCEMENT. 
 
 No. 57 Introduction to an ansvjer of one defeiulant. 
 
 This defendant, now and at all times hereafter, savinsf to 
 himself all manner of benefit and advantage of exception 
 which can or may be had or taken to the many errors, uncer- 
 tainties and other imperfections in the said bill contained, for 
 answer thereunto, or to so much and snch parts thereof as this 
 defendant is advised it is or are material or necessary for him 
 to make answer unto, answerint;:, says, etc. 
 
 Or thus: 
 
 This defendant reserving to himself all right of execption 
 to the said bill of complaint, for answer thereto, says, etc. 
 
 Wo. 58. Introduction to answer of several defendants. 
 
 These defendants, now and at all times hereafter, saving and 
 reserving to themselves, and each of them, all benefit and ad- 
 vantage of exception or otherwise, that can or may be had or 
 taken to the many errors, uncertainties and other imperfec- 
 tions in the said bill contained for answer tliereto, or to so 
 laucli thereof as these defendants are advised is or are mate- 
 rial or necessary for them, or any of them, to make answer unto, 
 they, these defendants, severally answering, say, etc. 
 
 Or thus: 
 
 These defendants, reserving to themselves all right of excep- 
 tion to the said bill of complaint, for answer thereto, say, etc. 
 
 III. COMMON FORMS IN FRAMING ANSWERS. 
 
 Ifo. 59. Where defendant admAts a statement. 
 
 And this defendant further answering, says that he has been 
 informed and believes it to be true, that, etc. 
 
 Or, 
 This defendant admits that, etc. 
 
 No. 60. Where a defendant admits a statement of a written 
 
 instrument. 
 
 And this defendant further says, that he has been informed, 
 and believes it it to be true, that, etc.; but for greater cer- 
 tainty therein, craves leave to refer to the said, etc., when the 
 same shall be produced. 
 
DEFENSE TO A SUIT. 135 
 
 Forms of Answer — Common Forms in Framing' Answer. 
 
 No. 61 . 'Where a defendant 'believes a statement m,ay he true, 
 hut qualifies his admission of it, not knowing the, same of 
 his own knowledge. 
 
 And this defendant furthei* says, he has never heard or been 
 informed, save by the complainant's said bill, whetlier, etc.; 
 but this defendant believes that, etc., as in the said bill is 
 alleged. 
 
 JSfo. 62. Where a defendant is entirely ignorant with regard 
 to the statement in the hill. 
 
 And this defendant, further answering, says, it rriay be true, 
 for anything this defendant knows to the contrary, that, etc.; 
 but this defendant is an utter stranger to all and every such 
 matters, and can not form any belief concerning the same. 
 
 No. 63. Where one of two defendants, of his own knowledge, 
 knows the statement in the hill to he true, and the other 
 defendant d-oes not know the same, hut believes the answer 
 of his co-defendant. 
 
 And this defendant, D, iurther severally answering, says, 
 and this defendant, E F, believes it to be true, that, etc. 
 
 No. 64. Where one of two defendants denies the allegation 
 in the hill, and the other defendant believes such denial to 
 he true. 
 
 And this defendant, C D, further severally answering, says, 
 he denies, and this defendant, E E, believes such denial to be 
 true, that, etc. 
 
 No. 65. Where several defendants join, and are all ignorant 
 of the allegations tn the hill. 
 
 And these defendants further severally say that they, or any 
 or either of them, to the knowledge or belief of the others or 
 other of them, do not know, and have never been informed, 
 save by the complainant's bill, and can not set forth as to their 
 belief or otherwise, whether, etc. 
 
 No. 66. General frame of an answer. 
 
 State oin Michigan. 
 The Circuit Court for the County of . In Chancery. 
 
136 DEFENSE TO A SUIT. 
 
 Forms of Answer — Common forms in Framing Answer. 
 
 AE, 1 
 
 Complainant, | 
 vs. )■ 
 
 CD, 
 
 Defendant. 
 
 The answer of C D, defendant to the bill of complaint 
 of A B, complainant. 
 
 This defendant, now and all times hereafter, saving and 
 reserving nnto himself all benefit and advantage of exception 
 which can or may be had or taken to the many errors, uncer- 
 tainties and other imperfections in the said bill contained, for 
 answer thereunto, or to so much and sucli parts thereof as this 
 defendant is advised it is or are material or necessary for liim^ 
 to make answer unto,* answering, says, etc. This defendant 
 admits, etc. 
 
 This defendant, further answering, denies, etc., {and so on 
 through the whole Mil, admit or deny every material allega- 
 tion, and set up any mutter in defense or avoidance, as the 
 nature of the case may require, and conclude as follows:) 
 
 And tliis defendant denies all arid all manner of unlawful 
 combination and confederacy, wherewith he is by the said bill 
 charged, without this, that there is any other matter, cause or 
 thing in the complainant's said bill of complaint contained, 
 material or necessary for this defendant to make answer unto 
 and not herein and hereby well and sufficiently answered, con- 
 fessed, traversed and avoided or denied, is true to the knowl- 
 eilge or belief of this defendant; all which matters and things 
 this defendant is ready and willing to aver, maintain and 
 prove, as this honorable court shall direct; and prays to be 
 hence dismissed with his reasonable costs and charges in this 
 behalf most wrongfully sustained. 
 
 Sol. for defendant. D. 
 
 If the answer is required to be under oath, the following 
 afiidavit should be attached: 
 
 No. 67. Affidavit to answer. 
 
 State of Michigan, ) 
 
 County of j 
 
 On this day of , 18 — , before me personally ap- 
 
 ]ieared C D, and made oath that he has read {or heard read), 
 the above answer, subscribed by him, and knows the contents 
 
DEFENSE TO A SUIT. 137 
 
 Forms of Answer. — Common Forms in Framing Answer. 
 
 thereof, and that the same is true, of his own knowledge, 
 except as to matters which are therein stated to be on his in- 
 formation and belief, and as to those matters, he believes them 
 to be true. 
 
 E F., Notary Public, 
 County, Michigan. 
 
 1^0. 68. Short form of answer. 
 
 State of Michigan. 
 
 Tiie Circuit Court for the County of , In Chancery. 
 
 AB, 
 
 Complainant, 
 vs. 
 CD, 
 
 Defendant. 
 
 The answer of C D, defendant, to the bill of complaint 
 of A B, complainant. 
 This defendant reserving to himself all right of exceptions 
 to the said bill of complaint, for answer thereto, says, etc. 
 [Proceed with the several a/oermerds according to the case, 
 admitting or denying every material allegation in the stating 
 part of the bill, and set up any matter in defense or avoid- 
 ance, as the nature of the case may require; and conclude 
 as follows): 
 
 And this defendant further answering, denies that complain- 
 ant is entitled to the relief, or any part thereof, in the said 
 bill of complaint demanded, and prays the same advantage of 
 this answer as if he had pleaded or demurred to the said bill 
 of complaint; and prays to be dismissed, with his reasonable 
 costs and charges in this behalf most wrongfully sustained. 
 
 Sol. for defendant. C D. 
 
 {Add affidavit, if required, as in last form.) 
 
 No. 69. Answer of infants, ly thei/r guardian ad litem. 
 
 {Title as in No. 65, ante.) 
 
 The answer of E D and C D, infants, uuder the age 
 
 of years, by E F, their guardian ad litem, to 
 
 the bill of complaint of A B, the complainant. 
 These defendants answering by their guardian ad litem, 
 say, that they are infants; this defendant E D, of the ao'e of 
 
138 DEFENSE TO A SUIT. 
 
 Forms of Answer — When to be Filed, 
 years, or thereabouts, and this defendant C D, of the age 
 
 of years, or thereabouts, and they therefore submit their 
 
 rights and interests in the matter in question in this cause, to 
 tlie tender consideration and protection of this honorable court, 
 and pray strict proof of the matters alleged in said bill of 
 complaint. E D, 
 
 CD. 
 By E F, their guardian ad litem,. 
 
 No. 70. Statement in answer, claiming the benefit of the 
 statute of frauds. 
 
 A-nd this defendant says, that by the statute of , it is 
 
 among other things provided, that no action shall be brought 
 whereby to charge any person upon any contract of any lands, 
 tenements and hereditaments, or any interest in or concern- 
 ing them, unless the agreement upon which such action should 
 be brought, or some memorandum or note in writing shall be 
 signed by the said party to be charged therewith, or some 
 other person by him lawfulh' authorized {give the language 
 of the statute.) And this defendant insists upon the said 
 statute, and claims the same benefit as if he had pleaded the 
 same. 
 
 No. 71. Conclusion of an answer, insisting that the com- 
 plainant has an adequate remedy, at law. 
 
 And this defendant submits to this honorable court that all 
 and ewerj the matters in the complainant's bill mentioned 
 and complained of, are matters which may be tried and deter- 
 mined at law, and with respect to which the complainant is 
 not entitled to any relief from a coiirt of equity; and this de- 
 fendant asks that he shall have the same benefit of this defense 
 as if he had demurred to the complainant's bill ; and this de- 
 fendant denies, etc. 
 
 When to he filed. — In Michigan, upon the return of the 
 chancery subpoena served, the defendant must cause his ap- 
 pearance to be entered within twenty days from the return 
 day of the writ. If he does not require a copy of the bill he 
 must plead, answer or demur within the same time, or he may 
 be defaulted. If a copy of the bill is required he must an- 
 swer within twenty days from the service of the copy, or the 
 
DEFENSE TO A SUIT. 139 
 
 Forms of Answer — Dismissal of Bill — Answer to Amended Bill. 
 
 bill will be taken as confessed, (a) The court, or a circuit 
 court coiniiiissioiier, tipou a proper showing, has power to 
 grant an order ex parte enlarging the time for a defendant to 
 answer. 
 
 Dismissal of hill. — When the defendant has appeared, he 
 may have an order of course, that complainant deliver to him 
 a copy of the bill in fifteen days. If such copy is not delivered 
 in fifteen days, or further time allowed for so doing, defendant 
 on filing affidavit of service of notice of the order, may have 
 a decree dismissing the suit with costs. (5) 
 
 But a defendant who has answered and moved to dissolve 
 an injunction, thereby waives default in service of co^jy of the 
 bill, (e) 
 
 Answer to amended Mil.— In answering an amended bill, 
 the defendant, if he has answered the original bill, should 
 answer only those matters which have been introduced by the 
 amendments, {d) In fact the answer to an amended bill consti- 
 tutes, together with the answer to the original bill, but one 
 record, as much as if it had been engrossed on the same 
 paper; (e) in the same manner thatan original and an amended 
 bill are considered as the same record. Upon this principle 
 it is that it has been held that it is impertinent to repeat, in 
 the answer to the amended bill, what appears upon tlie an- 
 swer to the original bill, unless by the repetition the defense 
 is materially varied. In our State it has been held that where 
 leave is given to amend an ansvi'er, a new answer, with the 
 amendments added, must be filed and served,or the original 
 answer withdrawn by leave of the court, and the amendments 
 added; or the amendments must refer to the portions of the 
 answer on file intended to be amended, and specify their 
 
 (a) Chancery Rule 11. 
 (6) Chancery Rule 14. 
 
 (c) Higgins v. Carpenter, Har. Ch. 256. 
 
 (d) Hlnde's Ch. Pr. 22; 1 Barb. Ch. Pr. 159. 
 
 (e) Mitf. Eq. PI. 257; Hildi/ardv. Cressy, 3 Atk. 303; Bennington Iron, 
 Co. V. Campbell, 2 Paige, Ch. R. 159. 
 
140 DEFENSE TO A SUIT. 
 
 Forms of Answer — Amendment of Answer. 
 
 nature and application, {a) Where the amendments are not 
 noted upon the amended bill, the defendant should ascertain 
 where the amendments are and answer them only. (5) 
 
 Amendment of answer. — Permission to a defendant to 
 amend his answer is a matter in the discretion of the court, 
 and will generally be allowed in the promotion of justice, and 
 wlien injury can not result to the complainant, and in eases 
 where injury might result unless time is given to the opposite 
 party to meet the change in the case produced by the amend- 
 ment, the court will refuse leave to amend, or give the other 
 party a reasonable time to meet the amendment. But the 
 amendment sliould be confined to clear mistake of matter of 
 fact. The ground of defense sliould not be changed, (c) 
 Generally, amendments will be allowed in chancery pletid- 
 ings at the discretion of tlie court, (a) When it is made on a 
 material point, the motion should be based upon an affidavit 
 of the facts which make it necessary, {e) An amendment 
 may be granted for the purpose of correcting a mistake 
 or error in a matter of fact, or in the statement of a 
 lact; (y)or in making an admission ot assets; (^) or a niistake 
 in the title of the answer. (A) 80 it will be allowed where 
 new matter has- come to the knowledge of the defendant, 
 since the answer was put in; (*) or in cases of surprise, as 
 where an addition has been made to the drait of the answer, 
 
 (a) Smith v. Searle, 14 Ves. 415; Mason v. Detroit City Bank, liar. Ch. 
 222; Chancer/ Eule 21. 
 
 (6) Bennington Iron Co. v. Campbell, 2 Pai,,e, Ch. R. 159; 1 Barb. Ch. 
 Pr. 159. 
 
 (c) Graves v. Niles, Har. Ch. 8.S2; Emerxon v. Ativater, 12 Mich. 314; 
 Wylder v. Crane, 53 111. 490; Haskell v. Brown, 65 111. 29; Roberts v. Stigle- 
 man, 78 111. 120. 
 
 {d) Artee v. Engart, 13 111. 243; Liggon v. Smith, 4 Hen. & Munf. 477. 
 
 (e) Liggon v. Smith, 4 Hen. & Mu f. 477; 1 Barb. Ch. Pr. 164. 
 
 (/) Alpha V. Pai/man, 1 Dick. R. 33; Berney v. Chambers, Bumb. 248; 
 Countess v. Gifford, 2 P. Wms. R. 424; 1 Barb. Ch. Pr. 164. 
 
 (g) Bagley v. Crump, 1 Dick. 35. 
 
 {h) Amb. 62; 1 Mad. 269; 1 Ves. & B. 186. 
 
 (i) Patterson Y. Slaughter, Amb. 292; Wells v. Wood, 10 Ves. R. 401; 
 Alpha V. Fayman, Dick. 33. 
 
DEFENSE TO A SUIT. 141 
 
 Dis laimer — Nature of. 
 
 after the defendant has perused it. (a) It will be allowed 
 where a defense is defectively set forth, in order to give the 
 party the benefit of the defense which he intended to present. 
 Bnt he will not be permitted to put in a new or additional 
 plea or answer. (6) 
 
 SECTION VI. 
 
 DISCLAIMER. 
 
 Nature of. — A disclaimer is a renunciation by the defend- 
 ant of all interest or claim to the subject of demat^d made by 
 die complainant in his bill. It can not be used, however, for 
 the purpose of depriving the complainant of his right to a full 
 answer, where it is evident that, notwithstanding the dis- 
 claimer, the defendant ought to be retained as a party to the 
 suit. A mere witness may avoid answering by a disclaimer; 
 but it is otherwise with an agent charged by the bill with a 
 personal fraud, for the law does not permit a man to disclaim 
 a liability, (c) 
 
 A disclaimer is distinct in substance from an answer, 
 although sometimes confounded with it. ((?) But it can seldom 
 be put in without an answer; for if a defendant has been 
 made a party by mistake, having had an interest, which he 
 may have parted with, the plaintiif may require an answer 
 sufficient to ascertain whether that is a fact or not; and if, in 
 truth, it is so, an answer seems necessary to enable the com- 
 plainant to make the proper party, instead of the defendant 
 disclaiming, [e) 
 
 (a) Chute v. Lady Dacre, 1 Eq. Ca. Ab. 29; 1 Barb. Ch. Pr. 164. 
 
 \h) Beach v. F-uUon Bank, 3 Wend. 573; Graves v. Niles, Har. Ch. 332. 
 
 (c) Barton's suit in Eq. 94; 2 Dan. Ch. Pr. 233; Mitf. Eq. PI. 153; Ells- 
 worth V. Curtis, 10 Paige, Ch. R. 105; Bentley v. Cowman, 6 Gill & J. 152; 
 Story's Eq. Pl. § 838; Glassington v. Thwaites, 2 Russ. R. 458; Whiting v. 
 Mush, 2 Younge & Coll. 546, 552; Bukeley v. Dunhar, 1 Anst. R. 37; Wel- 
 ford's Eq. P!. 254. 
 
 (<?) Mounsay v. Burnham, 1 Hare, R. 15. 
 
 (e) Ellsworth v. Curtis, 10 Paige, Ch. R. 105; Story's Eq. PI. § 838. 
 
142 DEFENSE TO A SUIT. 
 
 Disclaimer — Forms of. 
 
 A mere disclaimer is scarcely to be deemed snflBcient or 
 proper, except where the bill simply alleges that the defendant 
 claims an interest in the property in dispute, without more; 
 for under such circumstances^ if he has no interest, that is a 
 sufficient answer to the allegation ; (a) and he need not answer 
 further. (J?) 
 
 As a defendant may disclaim and answer, so he may. demur 
 to one part of the bill, plead to another,- answer to a third, and 
 disclaim to a fourth; but all these defenses must clearly refer 
 to separate and distinct parts of the bill, (c) 
 
 A defendant can not, by a disclaimer, deprive the complain- 
 ant of the requiring a full answer from him, unless it is evi- 
 dent that the defendant ought not, after such disclaimer, to 
 be retained as a party to the suit, {d) 
 
 If the defendant disclaims, and it appears that the bill was 
 exhibited, for vexation only, the court will dismiss the bill 
 with costs against the complainant, (e) A disclaimer must 
 be full and explicit in all respects, and be accompanied by an 
 answer denying the facts deemed necessary to be denied; it 
 can not be made by way of dem urrer. {f) If it is accompanied 
 by an insufficient answer, the com})lainant should except to 
 tiie answer, {g) 
 
 No. 72. Disclaimer. 
 
 {Title of Court and cause.) 
 
 The disclaimer of C D, one of the defendants, to the 
 bill of complaint of A B, the complainant. 
 This defendant, saving and reserving to himself, now and 
 at all times hereafter, all manner of advantage and benefit of 
 
 (a) Graham v. Coape, 9 Sim. 102; S. C. 3 Mylne & Craig, 638. 
 (6) Spofford V. Manning, 2 Edw. Ch. R. 358. 
 
 (c)Coop. Eq. PI. 309, 310; Mitf. Eq. PI. 319, 320: Story's Eq. PI. 
 §§ 436, 487, 839. 
 
 (d) Glassington y. Thwaites, 2 Euss. R. 458-462; Grahamv. Coape, 9 
 Sim. R. 102; S. C. 3 Mylne & Craig, 638; Ellsworth v. Curtis, 10 Paige, 
 Ch. R. 105. 
 
 (e) Coop. Eq. PI. 310, 811; Story's Eq. PI. § 842; Comstock v. Comstock, 
 24 Mich. 39. 
 
 (/) Worthington v. Lee, 2 Bland, 678. 
 
 (g) misworth v. Curtis, 10 Paige, Ch. R. 105. 
 
DEFENSE TO A SUIT. 143 
 
 Disclaimer — Answer and Disclaimer. 
 
 exceptions and otherwise that can or may be had and taken to 
 the many untruths, uncertainties and imperfections in the said 
 complainant's bill of complaint contained, for answer there- 
 unto, or Tinto so much, or such part thereof as is material for 
 this defendant to make answer unto, he answers and says, 
 that he fully and absolutely disclaims all manner of right, title 
 
 and interest wliatsoever, in and to the legacy of dollars 
 
 in said bill of complaint mentioned, and all other the estate 
 and effects of the said Thomas Atkins, deceased, in the said 
 bill jiained, and in and to every part thereof; and this defend- 
 ant denies all and all manner of unlawful combination and 
 confederacy unjustly charged against him in and by the siJd 
 bill of complaint, without this that any other matter or thing 
 in said bill contained, material or necessary for this defendant 
 to make answer unto, and not herein well and sufficiently an- 
 swered unto, confessed or avoided, traversed or denied, is true; 
 all which matters and things this defendant is ready to aver, 
 maintain and prove, as this honorable court shall direct, and 
 humbly prays to be l^ence dismissed, with his reason wble costs 
 and charges, in this behalf most wrongfully sustained. 
 (Add affidavit, No. 67, ante.) 
 
 N'o. 73. Answer and disclaimer. 
 
 {Commence as in Ifo. 66, ante, to the *) Answering, says, 
 t'lat he, this defendant, on behalf of E F, one of the other de- 
 fendants in the said bill named, did about years a^o, con- 
 tract and agree with G H for the purchase of the lands and 
 tenements, etc., now in question, and in possession of L M, 
 in the said bill also named, and another defendant thereto, 
 which said lands and tenements, etc., at that time were, and 
 
 for above years before had been in the possession of the 
 
 said G H and J K, in the said bill also named, or one of them, 
 and for the purchase whereof this defendant, on behalf of the 
 said defendant E F, agreed to give, and accordingly did give 
 and pay to the said G H, the sum of dollars; and in con- 
 sideration thereof the said G H, and N, his wife, by deed 
 bearing date on, etc., duly conveyed the said lands and tene- 
 ments, etc., to the said E F, who, thereupon and under and by 
 virtue of such conveyance as this defendant has heard and 
 believes, entered on and became seized of the said lands»and 
 tenements, etc., and continued so seized thereof without any 
 entry or claim made by the complainant, or any other person 
 
 or persons, until , in the year , when the said E F, as 
 
 this defendant has heard and believes, by good and sufficient 
 
144 Defense to a suit. 
 
 Disclaimer — Answer and Discla:mer. 
 conveyance in the law, and in consideration of the sum of- 
 
 dollars, bona fide paid, sold and conve.yed the said lands and 
 tenements, etc., to the said defendant, L M, and his heirs, who 
 thereupon entered thereon, and was and jet is seized and pos- 
 sessed of the same; and this defendant further answering, says, 
 he does not know, nor can he set forth, as to his belief or 
 otherwise, whether K S, in the said hill named, was ever seized 
 of the said premises, or any part thereof; and this defendant 
 further answering, says, he has been advised and believes that 
 the said G H, and N, his wife, had good right and litle to sell 
 and convey' the said premises so purchased by this defendant, 
 on behalf of the said E F, as aforesaid; and this defendant fur- 
 ther answering, says, he denies that he ever had any notice of 
 any right or title, the complainant, or any other person, save 
 as aforesaid, had or might, or could claim, of, in or to the said 
 lands and tenements, etc., or any part thereof; and this defend- 
 ant says, that he never had or claimed, or pretended to have, 
 nor has he now, nor does he claim, or pretend to have, any 
 right, title, or interest of, in or to the said premises, or any 
 part thereof; and this defendant disclaims all right and title 
 of, in and to the same, and every part thereof. 
 (Conclude as in Ifo. 66, ante.) 
 
EXCEPTIONS TO ANSWER. 145 
 
 Nature of— Exceptions for InsuiEciency— In what Cases they Lie. 
 
 CHAPTER YTII. 
 
 EXCEPTIONS TO ANSWER. 
 
 Section 1. Natuub op. 
 
 2. Exceptions foh Insufficibkot. 
 
 3. Exceptions foe Scandal and Impektinence. 
 
 SECTION I. 
 
 NATUEE OF. 
 
 Exceptions to an answer are in the nature of a special de- 
 murrer, {a) and are of two kinds— insufficiency, and for scan- 
 dal and impertinence. The former lies where tlie answer does 
 not sufficiently respond to the allegations and charges in the 
 bill; and the latter, where the answer contains scandalous or 
 impertinent matter. 
 
 It is nnnecessary to refer at the present time, to the chan- 
 cery rnles, in force in this State upon tliis subject, as they are 
 quoted at length, farther on in this chapter. 
 
 SECT [ON II. 
 
 EXCEPTIONS FOE INSUFFICIENCY. 
 
 In what cases they lie. — Exceptions for insufficiency will 
 only be allowed where some material allegation, charge or in- 
 terrogatory in the bill is not fully answered, (h) 
 
 Exceptions will lie to an answer setting ujj a justification 
 
 (a) Story v. Livingston, 13 Pet. TJ. S. R. 359; Stone v. Moore, 26 111. 
 171, 172. 
 {V) Stafford v. Brown, A Paige, Ch. R. 88. 
 10 
 
146 EXCEPTIONS TO ANSWER. 
 
 Exceptions for Insufficiency — How Taken. 
 
 of the acts complained of, bnt not showing by virtue of what 
 riglit, title or authority the defendant performed the acts, {a) 
 Exceptions for insufficiency may be filed after exceptions 
 for impertinence, (b) 
 
 How taken. — Exceptions to an answer must state verbatim 
 the interrogatories npt answered, or the charges in the bill to 
 which the answer was addressed, and the terms of the an- 
 swer, (c) They must be founded on some allegation, charge 
 or inter'rogatory in the bill, and must set forth the particular 
 points wherein the answer is defective, with a prayer that the 
 defendant be required to put in a full and perfect answer to 
 these points, (^) otherwise the exceptions may be stricken 
 from the files on motion, or the objection may be tak(!n when 
 they are noticed for argument, (e) 
 
 In preparinsr exceptions, care should be taken that all the 
 points of insufficiency are embodied in the exceptions; for, by 
 the general rule of practice, a complainant is not allowed to 
 add to or alter exceptions after they are filed; but this rule 
 bends to circumstances; upon a clear mistake accounted for, 
 and on special application, leave raaj' be given to amend ex- 
 ceptions. (/■) 
 
 "When there are two or more defendants, who put in separ- 
 ate and distinct answers, separate exceptions must be filed to 
 each answer; (g) and when exceptions were taken to the joint 
 answer of two defendants, and one of them died, the excep- 
 tions were referred as to the answer of the surviving defend- 
 ant only. (A) 
 
 (a) Craig v. The People, 47 III. 487. 
 
 (6) Patriotic Bank v. Bank of Washington, 5 Cranch, C. C. R. 60?. 
 
 (c) Hodgson v. Butterfield, 2 Sim. & Stu. R. 236; Brooks v. Byam, 1 Sto- 
 ly, R. 296; Baker v. Kinn stand, 3 Edw. Ch. 138. 
 
 {d) Buloid V. Miller, 4 Paige, Ch. R. 473; McKeen v. Field, 4 Edw. Ch. 
 R. 379; West v. Williams, 1 Md. Ch. Decis. 358. 
 
 (e) Baker v. Kingsland, 3 Edw. Ch. 138, 
 
 (/) Bolder v. The Bank of England, 10 Ves. 283; Partridge v. Hay- 
 craft, 11 Ves. 570; Eq. Draft, 672. 
 
 (g) Sydolf v. Monkstone, 2 Dick." 609. 
 
 (h) Lord Herbert v. Pusey, 1 Dick. 255. 
 
EXCEPTIONS TO ANSWER. 147 
 
 Exceptions for Insuffici'ncy — How Taken. 
 
 An exception will not be allowed, if, by striking out tlie 
 portion objected to, other parts of the answer would/ be ren- 
 dered unmeaning, (a) 
 
 If the whole answer to a compound interrogatory, taken 
 together, is a substantial reply to the whole interrogatory, 
 tliongh each separate question therein may not be separately 
 answered, the answer will be held sufficient. (5) 
 
 If the bill requires the defendant to view exhibits before 
 putting in his answer, and he neglects to do so, the correct 
 practice is to except to his answer on that ground, (c) 
 
 Exceptions will not lie to an answer to which the oath of 
 the defendant is waived; {d) because snch answers are not 
 evidence. 
 
 Exceptions founded on verbal criticism, slight defects,- and 
 the omission of immaterial matter, will be disallowed and 
 treated as vexatious. («) 
 
 When the matter of the bill is fully answered, and the de- 
 fendant sets up matter which is irrelevant, and forms no suf- 
 ficient grounds of defense, the complainant may except to the 
 answer for impertinence, but not fOr insufficiency. (/") 
 
 If exceptions to an answer are on acconnt of the omission 
 in a matter not material, and when it is evident that the de- 
 fendant has no intention of avoiding a full disclog.nre, they, 
 will not be sustained, {g) 
 
 The rules governing the frame of an answer, and what it 
 must contain, have already been fully alluded to in a former 
 chapter, (A) and it is sufficient to say that for any of the 
 material defects in the answier, as there pointed out, advantage 
 may be taken by exceptions. 
 
 (a) German v. Machin, 6 Paige, Ch. R. 2S8. 
 {h) Mott V. Hall, 41 Geo. 117. 
 (c) L Estrange v. Moloney, 1 Hagan, 470. 
 ((i)l Barb. Ch. Pr. 177. 
 .(c) Baggotl v. Henrij, l.Edw. Ch. 7. 
 (/) Stafford v. Brown, 4 Paige, Ch. 88. 
 
 (g) Davis v. Mapes, 2 Pai^e, Ch. R. 105; Baggott v. Henry, 1 Edw. Ch. 
 7; Fay v. Jetvett, 3 Edw. Ch. 323; Westv.Willkims, 1 Md. Ch. Decis. 358. 
 {h) Ante, Chap. V, § 5. 
 
148 EXCEPTIONS TO ANSWER. 
 
 Exceptions for Scandal and Impertinence — What is. 
 
 SECTION III. 
 EXCEPTIONS FOR SCANDAL AND IMPEETINENCE. 
 
 What is. — "What is said in a previous chapter {a) in refer- 
 ence to the framing of a bill so that it does not contain state- 
 ments or charges which are scandalous or impertinent, is 
 applicable to an answer. As we have there seen, scandal con- 
 sists in the allegation of anything which is unbecoming the 
 dignity of the court to hear, or is contrary to good manners, 
 or which charges some person with an offense not necessary 
 to be shown in the cause. (5) And the introduction of scan- 
 dalous and impertinent matter in a bill, does not authorize or 
 justify similar matter in tlie answer to meet such improper 
 allegations in the bill, (c) 
 
 If an answer goes out of the bill to state some matter not 
 material to the defendant's case,it will be deemed impertinent, 
 and the matter upon application to the court will be ex- 
 punged. (^) So it is impertinence, where the pleading is 
 stuffed with long recitals, or with unnecessary digressions, or 
 where a deed is stated, which is not prayed to be set forth, (e) 
 
 Any matter in the answer which is responsive to the bill, 
 is not impertinent; (/") and wheii exceptions to an answer em- 
 braces matter material to the defense, it will be overruled, {g) 
 
 Exceptions for impertinence or scandal, mnst point out the 
 objectionable passage with clearness; and if several parts of 
 
 (a) Ante, Chap. III. 
 
 (6) 1 Barb. Ch. Pr. 41; Coffin v. Cooper, 6 Ves. 514; McConnell v. Uoh- 
 hush, 11 111. 61; 1 Dan. Ch. Pr. 45; Story's Eq. PL § 862. 
 
 (c) Langdon v. Pickeiinif, 19 Maine, 214. 
 
 id) Lnngdony. Godilard, 3 S.ory, 13; Story's Eq. PI. §§ 266, 267, Se^; 
 Cmioell V. Ctaypool, 8 Black''. 124; Spencer t. Van Dusen, 1 Paige, Oh. R. 
 .555. 
 
 (e) Story's Eq. PL §§ 266, 863; Wood v. Mann, 1 Sumner, 506, -50?. 
 
 ( f) Mclntt/re v. Trustees of Union College, 6 Paige, Ch. R. 239; Lowns- 
 dale V. City of Portland, 1 Oregon, 381; S. C. 1 Deadley, 1. 
 
 (g) Ba^com v. N. Y. Life Ins. Co. etc. 11 Paigs, Ch. 454; Hardeman v. 
 Harris, 7 How. U. S. 726; Saltmarsh v. Bower, 22 Ala. 221. 
 
EXCEPTIONS TO ANSWER. 149 
 
 Exceptions to Scandal and Impertinence — Rules. 
 
 an answer are objectionable, each part must be the subject of 
 a separate exception ; (a) and wliere a whole clause or sentence 
 is impertinent, and depends npon the same principle, the com- 
 plainant can not except to a part of the clause or sentence only, 
 so as to make what remains unintelligible, or so as to wholly 
 change the meaning of what remains, should the part excepted 
 to be stricken out; (Jj) but when pertinent matter is so blend- 
 ed with matter which is impertinent, that it can not be 
 separated, the whole may be excepted to. (c) An exception, 
 however, for impertinence, must be sustained in toto. {d) 
 
 When an answer is accompanied by a plea or demurrer to 
 any part of the discovery sought, the complainant, unless he 
 means to admit the validity of the plea or demurrer, can not 
 except to the answer until the plea or demurrer has been dis- 
 posed of; (e) and when a plea is ordered to stand for an an- 
 swer, without any liberty to accept being expressly given, the 
 complainant can only except to the residue of the answer; (_/") 
 and it is said that exceptions will not lie to an answer in aid 
 of a plea, {g) 
 
 Hules. — The chancery rules provide that "when the answer 
 is to the whole bill, the complainant shall have twenty days, 
 after notice that such answer is put in, to except to the same, 
 or if the answer is to part of the bill only, he shall have 
 twenty days after the plea or demurrer to the residue of the 
 bill has been allowed or overruled, to except to such answer, 
 at the expiration of which time, if no exceptions are taken, 
 and no order for further time has been granted, the answer 
 shall be deemed sufficient. If the complainant excepts to the 
 
 (n) Whitmarsh v. Campbell, 1 Paige, Cli. 645. 
 
 (b) Franklin v. Keelei; 4 P.iig-e, Oh. 382i Buloid v. Miller, Id. 473. 
 
 (c) Norton v. Woods, 5 Paige, Ch. R. 260. 
 
 (r?) Mclnii/re v. Trustees, etc. 6 Paig\ Ch. R. 239; Van Rensselaer v. 
 Brice, 4 Paige, Ch. R. 174; Eq. Draft. 672; Wagstaff\. Bryan, 1 Russ. & 
 My. 30; 1 Barb. Ch. Pr. 203. 
 
 («) Siffkin V. Manning, 9 Paige, Ch. R. 222. 
 
 (/) Kirbtj Y. Taylor, 6 Johns. C. R. 242; Leay crafts. Dempsey, 15 
 Wend. 83. 
 
 ig) Leftwich v. Onie, 1 Freem. Ch. 207. 
 
150 EXCEPTIONS TO ANSWER. 
 
 Exceptions to Scandal and Impertinence — Rules. 
 
 answer for insufficiency, the defendant may, within eight days 
 after service of a copy of tlie exceptions, give written notice 
 of his submission to answer an}' or all of such exceptions; 
 and he shall be liable for the costs of the exceptions which he 
 submits to answer." "Where the defendant both answers and 
 demurs to different parts of the bill, and the demurrer is 
 overruled, complainant, to obtain a further answer must except 
 to the original answer, (a) 
 
 " When exceptions to an answer for insufficiency, are not 
 submitted to within the time prescribed by the preceding rule, 
 the complainant, at any time within ten days thereafter, may 
 have an order of course to refer the exceptions not submitted 
 toby the defendant, to a circuit court commissioner. If the 
 exceptions not submitted to are not referred, and notice of 
 such reference given within the time specified, they shall be 
 considered as abandoned, and the answer as to such exceptions 
 shall be deemed sufficient." (5) 
 
 " If a complainant refers a second or third answer for in- 
 sufficiency on the old exceptions, the particular exceptions to 
 which he requires a further answer shall be stated on the order 
 of reference. And if he does not refer such second or third 
 answer for insufficiency, within ten days after the same is pat 
 in, such answer shall be deemed sufficient." (o) 
 ' " Exceptions to any pleading or other matter pending before 
 the court for scandal and impertinence, shall be taken in the 
 same manner as exceptions to an answer for insufficiency; and 
 may be submitted to in like manner, and within the same 
 time. If they are not submitted to the party excepting shall 
 refer them in the same manner, or they shall be considered as 
 abandoned ; and if such exceptions are to an answer, the answer 
 thenceforth shall be deemed sufficient." {d) 
 
 "Whenever an answer, or other pleading, or proceeding is 
 referred for insufficiency, scandal or impertinence, the excep- 
 
 ((i)ChmceryRule27; Bragg v. W^Mcomft, Walk Ch. 307. 
 (6) Chancery Rule 28. 
 
 (c) Chancery Rule 29. 
 
 [d) Chancery Rule 30. 
 
EXCEPTIONS TO ANSWER. 151 
 
 Exceptions to Scandal and Impertinence — Rules. 
 
 tioiis shall be considered as abandoned if the party obtaining 
 the reference shall not procure and file the commissioner's 
 report within fifteen days from the date of the order of refer- 
 ence; unless the commissioner shall, within that time, certify 
 that the party obtaining such reference has not been guilty of 
 an unreasonable delay, and that further time, to be specified 
 in the certificate, is necessary to enable the commissioner to 
 make a satisfactory report; in which case the exceptions 
 shall be considered as abandoned, if the report be not obtained 
 within the further time so stated. And if the exceptions were 
 to an answer, it shall thenceforth be deemed suflicieut."(a) 
 
 " If on a reference of exceptions to an answer, or the refer- 
 ence of a second answer, on tlie old exceptions, the commis- 
 sioner shall find the answer insufficient, he shall fix a time for 
 putting in a further answer, and specify the same in his re- 
 port." (5) 
 
 "The commissioner's report on exceptions shall be deliv- 
 ered to the party obtaining the reference, who shall forthwith 
 file the same in the proper office; and if he Joes not except to 
 the report within eight days thereafter, it shall become abso- 
 lute against him. But the adverse party shall have eight 
 days after service of notice of filing the report t§ except to the 
 same; and if he does not except within that time, it shall 
 become absolute as against him, without any order for that pur- 
 pose. If none of the exceptions to an answer are submitted 
 to by the defendant, or allowed by the commissioner, the 
 answer shall be deemed sufficient from the time such report 
 becomes absolute as against the complainant." (c) 
 
 "If the commissioner reports that anything contained in 
 any pleading or proceeding is scandalous or impertinent, the 
 party excepting, on filing proof that the report has become 
 absolute against the adverse party, may have an order of 
 course that the commissioner making the report expunge the 
 scandalous or impertinent matter; and that the adverse party 
 
 (a) Chancery Rule 31. 
 (h) Chancery Rule 32. 
 (c) Chancery Rule 33; also, Chancery Rule 79 and notes. 
 
152 EXCEPTIONS TO ANSWER. 
 
 Exceptions to Scandal and Impertinence — Eules. 
 
 pay the costs of tlie exceptions and the proceedings thereon, 
 within twenty days after the service of a copy of such order, 
 and of the taxed bill on him or his solicitor. When the ad- 
 verse party submits to the exceptions, the same order may 
 be obtained on iiling tlie notice of submission. If a commis- 
 sioner disallows an exception for scandal and impertinence, 
 his report shall be final, and no exceptions to his report in 
 that respect sluill be allowed; bixt it shall not preclude the 
 party upon the hearing of the cause, or upon the taxation of 
 the general costs of the suit, from insisting that the matter 
 excepted to was in fact impertinent." {a) 
 
 "On exceptions to answer for insuificiency, if all the ex- 
 ceptions are submitted to by the defendant, or a part are sub- 
 mitted to and the rest abandoned, or are disallowed on refer- 
 ence, the complainant may have an order of course, that the 
 defendant put in a further answer, and serve a copy thereof, 
 within twenty days after notice of the order, and pay the 
 costs of the exceptions." {b) 
 
 " If, as a reference of exceptions, or the reference of a sec- 
 ond answer upon the old exceptions, the answer is found in- 
 sufficient, and the commissioner's report has become absolute 
 against the defendant, the complainant may have a similar 
 order of course, to put in a further answer, and pay the costs 
 within the time specified in the commissioner's report." (e) 
 
 " In the case specified in the two preceding rules, the de- 
 fenlant shall be entitled to a copy of the taxed bill of costs, 
 at least ten days before the time for putting in the further 
 answer expires, or he may put in such answer without paying 
 the costs. But the complainant may afterward proceed by 
 execution or attachment to compel paj'ment thereof, if they 
 are not paid within twenty days after service of a copy of 
 the taxed bill on the defendant, or his solicitor. And if the 
 coinplainant has amended his bill so as to require an answer 
 to the amendments, as well as the exceptions, the defendant 
 
 (a) Chancery Rule 34. 
 (6) Chancery Rule 35. 
 (c) Chancery Rule 36. 
 
EXCEPTIONS TO ANSWER. 1^3 
 
 Exceptions for Scandal and Impertinence — Rules. 
 
 shall have the same time to answer the amendments and excep- 
 tions together, as he originallj had to answer the bill; and 
 the order to answer shall be varied accordingly." (a) 
 
 " If the defendant does not put in a further answer, and pay 
 the costs within tlie time prescribed, or within such further 
 time as may be allowed by the court for that purpose, the 
 complainant, on filing an affidavit showing such default, may 
 have an order of course to take the bill as confessed, or may 
 move for an attachment against the defendant." ih) 
 
 " The argument of exceptions to a commissioner's report 
 on exceptions, shall be heard as a special motion. Either 
 party may notice the same for hearing, and the party except- 
 ing to the report shall furnish the necessary papers for the 
 court; and if he neglects to do so, the report may be con- 
 firmed. But if both parties have excepted to the report, each 
 shall farnish copies of his own exceptions, and the party ob- 
 taining the reference shall furnish such other papers as may 
 be necessary. The costs of the hearing on exceptions to a 
 report upon exceptions shall be in the discretion of the court; 
 but neither party shall be entitled to costs as against the 
 other, unless he succeeds as to the major part of tlie excep- 
 tions to tlie report. And where the party succeeding as to 
 the major part does not succeed as to all the exceptions to the 
 , report, his costs of the hearing to be allowed to the adverse 
 party, shall not be taxed at a sum exceeding ten dollars." (c) 
 
 " Wlien exceptions are taken to an answer for insufficiency, 
 or to any pleading or proceeding for scandal or impertinence, 
 the party excepting shall be entitled to the costs of the excep- 
 tions which are submitted to, and those which are finally 
 allowed after reference to a commissioner; but neither party 
 sh',11 be entitled to costs upon the reference of exceptions, un 
 ■ less he finally succeeds as to the exceptions which are referred. 
 The costs on exceptions shall not be taxed until all exceptions 
 are ' submitted to, abandoned, allowed or finally disposed of; 
 
 (a) Chancery Rule 37. 
 (h) Chancery Rule 38. 
 (c) Chancery Rule 39. 
 
154 EXCEPTIONS TO ANSWER. 
 
 Exceptions for Scandal and Impertinence — Rules. 
 
 and then the whole costs to which the exceptant is entitled 
 shall be included in one bill, and the adverse party may set 
 off any costs to which he is entitled." (a) 
 
 "After the report of the commissioner is filed, either party 
 may have an order of course to confirm the same, unless cause 
 to the contrary thereof shall be shown in eiglit days after no- 
 tice of its being filed ; and if no exceptions ai'e filed and served 
 within that time, the order shall be absolute of course with- 
 out further order; or either party may file exceptions, and 
 have an order of course to confirm the report so far as the 
 same is not excepted to, and with the like effect." (5) 
 
 " If a party wishes to complain of any matter introduced 
 into any state of facts, affidavit, or other proceeding before the 
 commissioner, on the ground that it is scandalous or imper- 
 tinent, or that any examination of a party before him is in- 
 sufficient, such party sliall be at liberty to file exceptions 
 thereto with the commissioner; and the commissioner shall 
 have authority to expunge any such matter which he shall 
 find shall be scandalous or impertinent. And when the 
 matter is excepted to as scandalous or impertinent,' if the 
 commissioner disallows the exceptions, his decision thereon 
 shall be final as to the exceptions which are disallowed; but 
 this shall not preclude the party from insisting upon the im- 
 pertinence at the hearing of the cause, or upon any subse- 
 quent proceeding founded on the commissioner's report upon 
 the reference, or upon the taxation of the general costs of the 
 cause, or of the reference. And in deciding on the sufficiency 
 or insufficiency of the examination of a party, or of an answer 
 to a bill, the commissioner shall always take into considera- 
 tion the relevancy or materiality of the statement or ques- 
 tion referred to in the exception. On exceptions to the com- 
 missioner's report, or to his certificate of tlie sufficiency or in- 
 sufficiency of the examination, the parties shall be confined 
 to the objections taken before the commissioner." (c) 
 
 {a) Chancery Rule 40. 
 (h) Chancery Rule 79. 
 (c) Chancery Rule 70. 
 
EXCEPTIONS TO ANSWER. 155 
 
 Exceptions for Scandal and Insufficiency — Form of. 
 
 Answers must be excepted to before filing the replication, (a) 
 for by replying, the complainant admits tiie answer to be suf- 
 ficient; and exceptions must be disposed of before farther 
 proceedings can be taken in tlie case. (5) 
 
 iVb. 74. Exceptions to answer for msufficiency. 
 
 ST.4.TE OF Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 A B, 
 
 Complainant, 
 vs. 
 C D, 
 
 Defendant. 
 
 Exceptions taken by the complainant to the insnifi- 
 cient answer of the defendant, C D, to the com- 
 plainant's bill of complaint. 
 First. — For that the defendant, C D, has not, to the best 
 and utmost of his knowledge, remembrance, information and 
 belief, answered and set fortii whether, etc. {Here set out the 
 ground of exception.) 
 
 Second. — For that the defendant has not in manner afore- 
 said, answered and set forth whetlier, etc. {and so on, set out 
 the ground of each exception as the case may require, using 
 the words of the interrogatory or matter not answered.) 
 
 In all which particulars tlie complainant excepts to the an- 
 swer of the defendant, C D, as evasive, imperfect and insufli- 
 cieiit; and prays that the defendant, C D, may be compelled 
 to put in a full and sufficient answer thereto. 
 
 Sol. for complainant. 
 
 iTo. 75. Exceptions to answer for scandal and impertinence. 
 
 {Title of cause as in last form.) 
 
 Exceptions taken by the complainant to the answer 
 of the defendant, C D, to the bill of complaint in 
 this cause, for scandal and impertinence. 
 First. — For that the said answer is scandalous from and in- 
 
 (a) 1 Barb. Oh. Pr. 183; Coleman v. Lyne, etc., 4 Rand, 451. 
 (6] Clarh v. Tinsley, 4 Rand. 250. 
 
156 EXCEPTIONS TO ANSWER. 
 
 Exceptions for Scandal and Impertinence — Expunge Scandal, etc. 
 
 cludin^r the word "he," in the tenth line of the thirji folio, 
 dow/i to and including the word " hindrance," in the fourth 
 line of the fourth folio thereof. 
 
 Second. — For that the said answer is impertinent from and 
 including, etc. {as above, and so on.) 
 
 In all which particulars the complainant excepts to the said 
 answer of the defendant, C D, as scandalous or impertinent; 
 and insists that the same ought to be expunged from the said 
 
 answer. 
 
 Sol. for complainant. 
 
 No. 76. Order to expunge scandal ani impertinence from, 
 answer. 
 
 {Caption and title of cause, nsin No. 105, post.") 
 
 The answer of the defendant, C D, liaviiiir been rnporte.l 
 by the commissioner, to who:r)- the exceiitions for scandal 
 and impertinence were referred, to be scandalous in the mat- 
 ter oi first, third, 2mA fifth exceptions, and impertinent in the 
 matter of the second and fourth, and the said report having 
 become absolute {or approved by the coui't) against the de- 
 fendaut, it is ordered that the clerk of this court do expunge 
 from the said answer such scandalous and impertinent mat- 
 ter, according to said report. And it is furtlier ordered that 
 the said G I) pay to the complainaiit, or his solicitor, the 
 costs of the said exceptions and the proceedini;s thereon, with- 
 in days after service of a copy of this order, and of the 
 
 taxed bill of costs, on him or his solicitor, or that an attachment 
 issue against him. 
 
AMENDMENT TO BILLS. 157 
 
 Amendment to Bills. 
 
 CHAPTER IX. 
 
 AMENDMENT TO BILLS. 
 
 A'court will permit amendments to bills, pleas, answers and 
 replications, on siicli terms as it may deem proper, so that 
 neither party be s>irprised nor unreasonably delayed thereby. 
 
 Chancery Rule 21 states: " If the bill has not been sworn 
 to, the complainant may amend it, at any time before the plea, 
 answer, or demurrer is put in, of course and without costs. 
 He maj' also amend of course after answer, at any time before 
 he replies thereto, until the time for replying expires, and 
 witliont costs if a new or further answer is not thereby ren- 
 dered necessary, but if such amendment requires a new or a 
 further answer, then it shall be on payment of costs to be taxed. 
 He may also amend sworn bills, except injunction bills, in the 
 same manner if the amendments are merely in addition to and 
 not inconsistent with what is contained in the original bill; 
 such amendments being verified by oath as a bill is required 
 to be verified. Eut no amendment of an injunction bill shall 
 be allowed without a si^ecial order of the court, and upon 
 due notice to the adverse party if he has appeared in the suit. 
 Amendments of course may be made without entering any rule 
 or order for that purpose; but the register shall not permit 
 any amendments to be made unless the same appear to be duly 
 authorized. And in every case of an amendment of course, 
 the complainant's solicitor shall either file a new engrossment 
 of the bill with the register where the original bill is filed, or 
 furnisli him with an engrossed copy of the amendments con- 
 taining the proper references to the folio and line in the orig- 
 inal bill in full, when snch amendments are to be inserted or 
 made. But no amendments shall be considered as made un- 
 til the same is served upon the adverse party if he has appeared 
 in the cause." 
 
 Where no answer has been ■filed, an injunction bill may be 
 
158 AMENDMENT TO BILLS. 
 
 Amendment to Bills. 
 
 amended so as to waive answer under oath, on payment of 
 costs, (a) It has been held that Rnle 21 has no application to 
 amendments at the hearing, (5) 
 
 A court of equity is liberal in permitting amendments of 
 the pleadings, that complete justice may be done, (c) It looks 
 to the real and substantial merits of the case; matters of form 
 are never suffered to prejudice the rights of a party. "Wlien- 
 ever the complainant discovers a defect in his bill, arising 
 from want of parties, or other reasons, if the cause is not at 
 issue, he may obtain leave, as of course, to amend his bill, {d) 
 
 Amendments of bills should introduce only such matters as 
 occurred prior to the filing of the bill, and which were omitted 
 by mistake or ignorance of such facts, (e) Matters which have 
 occurred subsei[nent to the filing of the bill, ought not to be 
 introduced by amendment; (_/") because as the amendments are 
 held to constitute part of tlie same record as the original bill, 
 (g) which can only relate to facts as they existed at the time 
 of the filing of the bill; the intrsduction of matters of a pos- 
 terior date would render the record incongruous. Matters, 
 therefore, occurring since the filing of the original bill should 
 be introdiiced by supplemental bill, and not by amend- 
 ment, (h) 
 
 Nor can a bill be amended by inserting therein facts known 
 
 (a) Bronson v. Green, Walk. Ch. 486. 
 
 \h) Ooodenow v. Curtis, 18 Mich. 298. 
 
 (c) Marble v. Banhotel, 35 111. 240; Wise v. Twiss, 54 Til. 301; Gregg v. 
 Brower, 67 111. 525; Barm v. Bragg, 70 111. 283. 
 
 {d) Droullard v. Baxter, 1 Scam. 191; Heacoch v. Durand, 42 111. 230; 
 Buckley X. Corse, Saxon, N. J. 504; Smith v. Babcock, 3 Sumner, 410; 
 Garlick v. Strong, 3 Paige, Ch. R. 440; Erickson v. Rafferty, 79 111. 209; 
 Marsh v. Green, 79 111. 385. 
 
 (e) Hammond v. Place, Har. Ch. 438; Burke v. Smith, 15 111. 158; Walker 
 V. HalleU, 1 Ala. N. S. 379; Milner v. Harewood, 17 Ves. 144, 148; Stoic's 
 Eq. PI. § § 336, 337. 
 
 If) Barton's Suit in Eq. 120; Story's Eq. PI. § 332-334; Stafford v. Hoivleth 
 1 Paige, Ch. R. 200; Colclough v. Evans, 4 Sim. 76; Wright v. Howard, 
 6 Mad. 106; Copen v. Flesher, 1 Bond, 440. 
 
 (g) Vere v. Glynn, 2 Dick. 441; JupUng v. Stuart, 4 Ves. 619. 
 
 Ih) Stafford v. Howlett, 1 Paige, Ch. R. 200; Archbishop of York v. 
 Stapleton, 2 Atk. 136; 5 Pick. 276: Burke v. Smith, 15 111. 158. 
 
AMENDMENT TO BILLS. 159 
 
 Amendment to BUls — When to be Made. 
 
 to the complainant at the time of filing the bill, unless some 
 excuse is given for the omission, {a) 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 facts and 
 circumstances connected with the substance, bat not forming 
 the substance itself, nor repugnant thereto. (J) 
 
 When to he made. — -The court is invested with the discretion 
 to allow amendments to a bill at any stage of the case, (c) 
 They may be made at the hearing to correspond with the 
 proof, without continuing the case, unless it essentially changes 
 the case made by the bill, (d) 
 
 It not unfrequently happens that the evidence does not sup- 
 port the allegations of a bill precisely in the form in which 
 they are made; and it subserves none of the purposes of 
 justice to dismiss the bill on the ground of a variance between 
 the pleadings and the proof, when a slight amendment will 
 render the testimony admissible; (e) nor does the fact' that 
 
 (a) WMtmarsh v. Campbell, 2 Paige, Ch. 67. 
 
 (J) Verplank v. The M. Ins. Co., 1 Edw. Ch. 46; Lyon v. Talmadge, 1 
 Johns. Ch. 184; Bodgers v. Eodgers, 1 Paige, Ch. 424; Strickland v. 
 SlricHand, 12 Sim. 253; 1 Barb. Ch. Pr. 207; Story's Eq. PI. §§ 332, 614. 
 
 (c) Livingston v. Hayes, 43 Mich. 129; Droullard v. Baxter, 1 Scam. 
 191; Jefferson Co. v. Ferguson, 13 111. 33; McArtee v. Engart, Id. 243; 
 Mason v. Bair, 33 111. 195; Jennings \. Springs, 1 Bailey Ch. 181; 6 Ala! 
 562; Allen v. Smith, 1 Leigh, E. 331; Perkins v. Hayes, Cooke, Tenn. 189; 
 Farwell v. Meyer, 85 111. 51; MarUe v. Bonhotel, 35 111. 240; Craig v' 
 The People, 47 111. 487; Booth v. Wiletj, 102 III. 84. 
 
 (d) Briggs v. Briggs, 20 Mich. 34; Gorham v. Wing, 10 Mich. 486; Good- 
 enow y. Curtis, 18 Mich. 298; Bahcock \. Twist, 19 Mich. 516; Slater y. 
 Breese, 36 Mich. 77; Bank of Mich. v. NiJes, Walk. Ch. 398; 1 Doug! 
 Mich. 504; House v. Dexter, 9 Mich. 246; Palmer v. Rich, 12 Mich. 414^ 
 Taylor v. Moran, 13 Mich. 367; Livingstone v. Hayes, 43 Mich. 129; Mar- 
 tin y.Eversal, 36 111. 222; Metropolitan Bank v. Godfrey, 23 111., 580; 
 Morgan v. Smith, 11 III. 194; Brown v. Welsh, 18 111. 347; DeWolf v! 
 Pratt, 42 111. 198; Hewett v. Dement, 57 111. 500; Neale v. Neale, 9 Wall! 
 U. S. R. 9; Hoyt v. Tuxbury, 70 111. 331; Murch v. Mayers, 85 111. 187. 
 
 (e) Marble v. Bonhotel, 35 111. 240; Moshier v. Knox College, 32 111. 
 163; Wise V. Twis.i, 54 111. 302; Hutchinson v. Reed, 1 Hoff. Ch. 32o! 
 Malin T. Malin, 2 Johns. Ch. 238; 2 Paige, Ch. R. 467: Bailey v. Bennett 
 3 Younge & Coll. 459; Wilher v. Collier, 1 Clarke, 315. 
 
160 AMENDMENT TO BILLS. 
 
 Amendment to Bills — When to be Made. 
 
 the bill is verified by affidavit necessarily deprive the coin- 
 plainarit of the benefit of an amendment. It is, however, no 
 doubt true, that he is estopped from so amending his bill as 
 to contradict facts which he has sworn to as positively true, 
 unless he can clearly show the court that the statement was 
 made in mistake. But when it only enlarges and amplifies 
 the statement, or states additional facts, there is no objection 
 to allowing the amendment to be made, (a) A mere formal 
 amendment of a bill may be made after the hearing, without 
 opening the case to let in new proofs on the part of the de- 
 fendant. (5) "When an amendment is allowed, after the case 
 is at issue, the court will usually impose such terms as it, in 
 its discretion, deems proper, in order that undue advantage can 
 not betaken of the defendant, (c) And if a material amend- 
 ment is permitted at the trial, and the defendant is taken by 
 surprise, a continuance would necessarily be granted, if asked 
 by the defendant, {d) Amendments to a divorce bill must be 
 verified, [e) 
 
 Where a bill is defective from the omission to join neces- 
 sary parties as co-coraplainants, or for the joinder of improper 
 parties, it may be amended upon payment of the defendant's 
 costs of the term, {f) 
 
 While amendments may be made at any stage of the case, 
 
 (rt) Marble v. Bonhotel, 35 111. 240; Eemvick v. Wilson, 6 Johns. Ch. R. 
 81; Verplanh V. M. Ins. Co., 1 Edw. Ch. 46; North R. Bank v. Rogers, 8 
 Paige, Ch. R. 648; Hinde, Pr. 25. 
 
 (6) De Wolf V. Pratt, 42 111. 198; Walden v. Bodley, 14 Pet. 156; Evans 
 V. Billings, 6 Ala. 550; Sicmrall v. Ryan, 1 J. J. Marsh. 97; Clifton v. 
 Haig, 4 Desaus. 330; 2 McCord, Ch. R. 170. 
 
 (c) Marhle v. Bonhotel, 35 111. 240; Beekman v. Waters, 3 Johns. Ch. R. 
 410: Vertner v. Griffith, Walker, 414. 
 
 (d) Moshier v. Knox College-, 32 111. 155; Beaumont v. Boultbee, 5 Ves. 
 485; Cnok T. Martyn,2 Atk. 3; 12 Ves. 215. 
 
 (e) Briggs v. Briggs, 20 Mich. 34; Green v. Green, 26 Mich. 437. 
 
 (/) Noyes v. Sairyer, 3 Vt. 160; Arendell v. Blackwell. 1 Dev. Ch. 354; 
 Stephens v. Terrell, 3 Monr. 131; Hoof man v. Marshall, 1 J. J. Marsh. 64; 
 Foster v. Hunt, 3 Bibb. 32; Gai/le v. Singleton, 1 Stew. 566; Lindley v. 
 Cravens, 2 Blackf. 426: Park v. Ballentine, 6 Blackf. 223; Hutchinson v. 
 Tteed, 1 Hoff. Ch. R. 316; Gorden v. Holland, 3 Ired. Ch. 362; 4 Hen. & 
 M. 476. 
 
AMENDMENT TO BILLS. 161 
 
 Amendment to Bill — Amendments not Allowed — Petition. 
 
 as we have seen, it is settled that it must be done at the 
 earliest opportunity, and tliat any unreasonable or improper 
 delay will deprive the party of the favorable exercise of the 
 discretion of the court, (a) Thus the court will not give a 
 complainant leave to amend 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, he is unable 
 to explain the delay, (b) On filing an amended bill adding 
 new and material averment, it is irregular, thoniih the de- 
 fendant has failed to appear, toitake an order ^ro eonfesso, 
 on the same day, and without the service of new process, (e) 
 
 When amendments will not he allowed. — Where, on de- 
 murrer, a bill has been dismissed, on the merits of the case as 
 stated, for want of equity, the court will not grant leave to 
 amend. ((Z) And a ■ bill sworn to can not be amended by 
 striking out an allegation, except upon affidavit showing that 
 it was inserted by mistake, and how such mistake occurred, {e) 
 
 No. 77. Petition for leave to amend hill after replication. 
 
 {Title of court and cause.) 
 
 To the Circuit Court for the County of . In Clian-- 
 
 eery. 
 
 The petition of the above named complainant, respectfully 
 represents unto this honorable conrt, tliat the defendant has 
 put in his answer to the complainant's hill; and the petition- 
 er has filed his replication thereto, but no witnesses haA^e 
 been examined by either party. {Let the petition agree with 
 the facts.) That since the filing of sucli replication, the peti- 
 tioner has been advised by his counsel, and believes, that it 
 
 (a) 1 Barb. Ch. Pr. 209; 1 Paige, Cli. 209. 
 
 (6) Altree v. Harden, 8 Lond. Jurist, 81; 1 Barb. Ch. Pr. 209; Vertner v 
 Griffith, Walker, 414. 
 
 (c) Harris v. Deitrich, 29 Mich. 366. 
 
 {d)Lyomr. Tallmadge, 1 Johns. Ch. R. 184; McComusv. Minor, "Walk- 
 er, 513. 
 
 (e) North SiverBank v. Rogers, 8 Paige, Ch. R. 648; Verplanh v. Mer. 
 Ins. Co. 1 Edw. Ch. R. 46; Broicii v. Eickctts, 2 Johns. Ch. R. 425; 
 Lathan v. Wiswell, 2 Ired. 2<J4. 
 
 11 
 
162 . AMENDMENT TO BILLS. 
 
 Amendment to Bills — Leave to Amend Bills — Amendment to a Bill. 
 
 is essential to his rights in this cause, that the bill should be 
 amended, as shown by tlie amended bill herewith presented, 
 or, by adding thereto the following statements, etc. {Here 
 insert the 'matter proposed to he introduced.) And the peti- 
 tioner further represents, that he had no knowledge of the 
 facts stated in said proposed amended bill (or, as above set 
 forth), nor was he ttware of the necessity of inserting them in 
 his bill, imtil after said replication was filed. 
 
 The petitioner, therefore, prays that he may be at liberty to 
 ■withdraw his said replication, and amend his bill by adding 
 the facts referred to. A. B. 
 
 {Add jv/rat.) 
 
 Where the petition is for leave to amend a sworn bill, or a 
 bill after replication is filed, the matter proposed as an amend- 
 ment should be annexed to the petition, and the truth thereof 
 should be sworn to in addition to the nsual jurat upon the 
 petition, (a) 
 
 Where the petition is verified by the complainant's solicitor, 
 reasons should be shown why the same would not be sworn to 
 by the complainants, or some of them. (5) 
 
 No. 78. Order for leave to amend hill, after a general de- 
 murrer. 
 
 {Caption and title of cause as in No. 105 post.) 
 
 The defendant, C D, having put in a general demurrer to the 
 bill of complaint in this cause, for want of equity, on motion 
 
 of Mr. • , of counsel for the complainant, it is ordered 
 
 that the complainant have leave to amend his bill as he may 
 be advised, upon payment of the costs to be taxed. It is 
 further ordered that such amendment be filed with the clerk 
 of this court within days from this date. 
 
 No. 79. Amendment to a hill. 
 
 {Title of court and cause.) 
 
 Amendment to the bill of complaint in this cause, 
 made pursuant to an order of the court, entered 
 on the day of , A. D. 18 — . 
 
 {a) Rogers v. De Forrest, 3 Edw. Ch. R. 171; Sogers v. Rogers, 1 Paige, 
 Ch. R. 424; Whitmarsh v. Cam.phell, 2 Paige. Ch. R. 67; Walsh v. Smythe, 
 3 Bland, 9; Everett v. Winn, \ S. & M. Ch. R. 67; Verplanhy. Mer. Ins. 
 Co. 1 Edw. Ch. 46; West v. Coke, 1 Murphy, 191. 
 
 (b) Verplank v. Mer. Ins. Co. 1 Edw. Ch. R. 46. 
 
AMENDMENT TO BILLS. 163 
 
 Amendment to Bills. 
 
 First. — In the third line erf the second folio of the bill, after 
 the Word "and," interline, "to wit, on or about the first day 
 of January, A. D. 1870." 
 
 Second. — After the word " time," in the tenth line of the 
 sixth folio, insert the words following. {Here insert the addi- 
 tional matter projposed.) 
 
 Thi/T'd. — Strike out the words "did convey," in the fourth 
 line of the eleventh folio, and insert in lieu thereof, the fol- 
 lowing: "was about to convey." 
 
 Fourth. — Add the name of " E. F. of, etc.," as a defendant, 
 in the second line of the fourteenth folio, after the word 
 " and." 
 
 Sol. for the complainant. 
 
 An amended bill should state no more of the original bill 
 tlian is necessary, to introduce, and make intelligible, the new 
 matter; nor should such amendment be incorporated in the 
 old bill, bat be by separate bill, (a) 
 
 Amendments to a bill should not be made by interlineations 
 and erasures in the original bill, but by filing the same on a 
 separate paper, ib) The practice of amending pleadings by 
 erasures and interlineations ought not to be tolerated by the 
 courts. A paper thus disfigured will be stricken from the 
 files, (c) 
 
 It is provided by Chancery Eule 67, that all bills, a,nswers, 
 and other proceedings, and copies thereof, shall be fairly and 
 legibly written, and if not so written- the register shall not 
 file such as may be offered to him for that purpose; and in 
 the entitling and indorsement of papers by either party, the 
 complainant's name shall be placed first. 
 
 (a) Pierce v. West, 3 Wash. C. C. R. 354; Bennington Iron Co. v. Camp- 
 lell, 2 Pa ge, Ch. R. 159; Hunt r. Holland, 3 Paige, Ch. R. 78; Stansherri/ 
 T. Moore, 56 111. 472. 
 
 (6) Walsh V. Smythe, 3 Bland, 9; Benzein v. Lovdass, Cam. & Nor. 521 • 
 Hinde, Pr. 22. 
 
 (c) Stansberry v. Moore, 56 111. 472. 
 
f64 REPLICATION. 
 
 Eeplication — Nature of— What time to be Ifiled. 
 
 CHA.PTER X. 
 
 EEPLICATION. 
 
 Nature of. — After the defendant has put in his answer, tlie 
 complainant is to determiniB whetlier the answer is sufficient^ 
 and whether he will amend tlie bill. If he neither excepts to 
 the answer for insufficiency, nor amends his bill, the iisnal 
 step next taken by him is to file a replication. Tliis replica- 
 tion, according to the present practice, consists of a sjeneral 
 averment only, of the truth and sufficiency of the complain- 
 ant's bill, and as general a denial of the same properties in the 
 answer of the defendant; but formerly, if the defcndMut's 
 answer stated new facts, in opposition to those alleged in the 
 bill, the complainant was accustomed to reply by a special 
 statement of other facts, not before charged. This produced 
 a rejoinder by the defend ,nt, asserting the truth and sufficiency 
 of his answer, and alleging the contrary of the complainant's 
 replication. A surrejoinder frequently followed the rejoinder, 
 and a rebutter the surrejoinder, and so on as long as new facts 
 were set forth by one party and denied by the other. But the 
 expense, inconvenience and delay attending these multifari- 
 ous pleadings on each side gave rise to an alteration of the 
 practice, {a) 
 
 Special replications are now superseded by the general 
 replication, which merely puts in issne the truth of the answer. 
 Amendments of the bill have been substituted in the place of 
 special replications, and a defendant may now do in an amend- 
 ment of a bill, what he formerly could by a special replica- 
 tion (6.) 
 
 Within what time to he filed. — ^By the 66th rule of the 
 
 (a) Ba.tton'3 Suit in Eq. 124; Story's Eq. PL §§ 877, 878. 
 (6) Chancery Rule 45; Tarletanx. Veites, 1 Gilni. 870; S chaff er\. Weed, 
 3 Gilm. 511; White v. Morrison, 11 HI. 361. 
 
REPLICATION. 165 
 
 Replication — When Filed — Issue Made. 
 
 Revised Rules of Practice for the Courts of Equity of the 
 United States^ of 1870, tlie copiplainant is required to file the 
 general replication to the answer, on or before tlie next succeed- 
 ing rule-day. thereafter. If the complainant omits to file such 
 replication within the prescribed period, the defendant will be 
 ' entitled to an order, as of course, for a dismissal of the suit; 
 and the suit shall thereupon stand dismissed, unless the court, 
 or a judge thereof, shall, upon motion for cause shown, allow a 
 re])lication to be filed nunc pro tune, the complainant sub- 
 mitting to speed the cause, and to such other terms as m-ay be 
 directed. 
 
 The practice in the different States as to the time in which 
 a replication may be filed, varies. In Michigan, the rule pro- 
 vides that if the complainant does not reply to the defendant's 
 answer within twenty days after it is deemed to be sufiicieut, 
 he shall be precluded from replying, and the cause shall stand 
 for hearing on plea and answer, unless further time be granted 
 by tlie court, upon cause shown, (a) but a party who attends 
 and cross-examines witnesses thereby waives default in the 
 service of a 'replication. (S) The court will sometimes per- 
 mit a replication to be filed, in furtherance of justice, after a 
 case is called for hearing, when it has been omitted by accU 
 dent or mistake, (c) 
 
 Wliere the defendant treats the cause as at issue, joins in 
 taking depositions, and consents to set the cause down for, 
 liearing on the bill, answer, exhibits, and depositions, and 
 the cause is heard accordingly, he can not, on error, insist 
 that the proofs shall not be considered, {d) 
 
 Where a replication has been filed, it will be presumed to 
 have been tiled in season, until the contrary is proved, {e) 
 
 Issue made,— After replication is filed, the cause is at issue, 
 and is readv for hearinsr. 
 
 in) Rule 45. 
 
 (6) Brooks V. Mmd, Walk. Ch. 389. 
 
 (c) Rule 45; Moseley, 926; Lord Red. 267; Annh'erid v. Bozman, 1 
 Ired. Ch. R. 117; Sea Insurance Co. v. Day, 9 Paige, Ch. R. 247. 
 ((J) Marpel v. Scot!., 41 111. 50; Corhus v. Teed, 69 111. 205. 
 (e) Lijonv. Tallmadge, 14 Johns. R. 501. 
 
166 REPLICATION. 
 
 Replication — Effect of Piling — Withdrawing^General. 
 
 Where the parties proceed to a hearing on the bill and answer, 
 without a replication, theanswei' will be taken as true, so far 
 as it is responsive to the allegations of the bill; and no evi- 
 dence can be received to contradict it, except matters of record 
 to which the answer refers, and is provable bj such record, [a) 
 But if the case is heard upon the pleadings and evidence, the 
 replication will be deemed as waived, (b) 
 
 Effect of filing. — If the complainant files a replication to ' 
 the answer, after he is apprised of the necessity of an amend- 
 ment of his bill, he precludes himself from making such 
 amendment, (c) 
 
 With'ir'awlnj.—lf the necessity for an amendment arises 
 after the filin:^ of the replication, the com plainant should 
 make a special application to the court for leave to withdraw 
 the replication, for the purpose of amending, {d) Upon which 
 application he must satisfy the court, by affidavit, that the 
 matter of the proposed amendment is material, and could not, 
 with reasonable diligence, iiave been sooner introduced into 
 the bill, (e) But this practice does not apply to amendments 
 by merely adding parties, after replication, {f) 
 
 No. 80. General replication. 
 
 State op Michi&an. 
 
 The Circuit Court for the County of . In Chancery. 
 
 (a) Rule 45; Derby v. Gage, 38 111. 27; Chambers v. Rowe, 36 111. 171; 
 Farrell v. McKee, Id. 226; Beems v. Denham, 2 Scam. 58; De Wolf v. 
 Long, 2 Gilm. 679; Payne v. Frazier, 4 Scam. 55; Trout v. Emmons, 29 
 111. 433; Nelson v. Plnegar, 39 111. 473; Mason v. McGirr, 28 111. 322; 
 Dooley v. SHpp, 26 111. 86; Thomas v. CouUas, 76 111. 493. 
 
 (6) Jameson v. Conwaij, 5 Gilm. 227, 230; Webb v. The Alton, etc., 5 
 Giim. 223; Starh v. Hillibut, 19 111. 311; Marpel v. Scott, 41 111. 50; De- 
 maree v. Driskill, 3 Blackf. 115; Brooks v. Mead, Walk. Ch. 339. 
 
 (c) Vermili/ea V. Odell, 4 Paige, Ch. R. 121. 
 
 (rf) 1 Dan. Ch. Pr. 546; 2 Id. 389; Coop. Eq. PL 333; 1 Barb. Ch. Pr. 253. 
 
 (e) Id., Id. 
 
 (/) Brattle v. Waterman, 4 Sim. 125. 
 
REPLICATION. 167 
 
 Replication — General. 
 
 AB, 
 
 Gomplainant, 
 vs. 
 CD, 
 
 Defendant. 
 
 The replication of A B, complainant, to the answer 
 ofC U, defendant. 
 This repliant, saving and reserving unto himself all and all 
 manner of advantage of exception to the manifold insufficien- 
 cies of the said answer, for replication thereunto, says: that 
 he will aver and prove his said bill to be true, certain and 
 sufficient in the law to be answered unto; and that the said 
 answer of the defendant is uncertain, untrue and insufficient 
 to be replied unto by this repliant; without this, that any 
 other matter or thing whatsoever in the said answer contained 
 material, or effectual in law to be replied unto, confessed and 
 avoided, traversed or denied is true; all which matters and 
 things this repliant is and will be ready to aver and prove, as 
 this honorable court shall direct, and humbly prays as in and 
 by his said bill he has already prayed. 
 
 Sol. for complainant. 
 
168 TESTIMONY. 
 
 Testimony Taken by Circuit Court Commissioners. 
 
 CHAPTER XL 
 
 TESTIMONY. 
 
 Section 1. TjSsttmony Taken by Circuit Court Commissioners. 
 
 2. Depositions. 
 
 3. Testimony taken in Open Court. 
 
 4. Proving Documents at the Hearino. 
 
 5. Stipulation to take Testimony. 
 
 6. Production of Books and Papers. 
 
 7. Special Reference to Commissioneb. 
 
 After a cause is at issue, either party may, within ten days 
 thereafter, give notice of his intention to take the testimony 
 in the case in open conrt. If no replication is filed, as we 
 have seen in the last chapter, the answer will be taken as true 
 so far as it is responsive to the bill, and the defendant will 
 need no proof, and the complainant, not having replied, can 
 not offer any. 
 
 The space allotted to this work precludes our going into an 
 examination of the subject of evidence, any further than to 
 point out the methods of taking the testimony of witnesses, 
 to be read on the hearing. And upon this, we will necessarily 
 be confined to the modes as they exist in Michigan. 
 
 Parties iiiay take evidence before a circuit court commis- 
 sioner, by deposition, in open court, or by stipulation before 
 a notary or justice. 
 
 SECTION I. 
 
 testimony taken by circuit couet commissionees. 
 
 Chancery Rule 47 provides that " when a cause is at issue, if 
 neither party has obtained the right of an examination of 
 witnesses in open court, either party desirous of taking testi- 
 mony, may at any time within thirty days after the expira- 
 
TESTIMONY. 169 
 
 Testimony — Order to take Proof-. 
 
 tioii of the time of obtaining: the rijjht to such examination in 
 open court, enter an order of course, and give notice thereof 
 to the opposite party, for the talking of testimony within 
 sixty days from the service of notice of such order, and either 
 party under such order may at any time within the said sixty 
 days talce the testimony of his witnesses, upon giving ten days 
 notice to the opposite, party of the names aad places o± abode 
 of the witnesses to be examined, and of the time and place of 
 such examination, and the person before whom the same will 
 be taken. At the end of the said sixty days, either party, on 
 filing an affidavit of the service or receipt of such notice, may 
 enter an order of course that the proofs be closed. If neither 
 party shall obtain an order for taking testimony as aforesaid, 
 or for an examination of witnesses in open court, the cause 
 shall stand for' hearing on pleadings, and may be noticed by 
 either party. In cases where feigned issues have been in use, 
 the issue shall be made hereafter by presenting the questions 
 to be tried in a simple form upon the facts. The issue, unless 
 agreed upon, shall be framed by the circuit judge, and in all 
 cases shall be approved by him." 
 
 No 81. Order to take proofs. 
 
 State of Michigan. 
 The Circuit Court for the County of ^ In Chancery. 
 
 A B, _ ; 
 
 Complainant, 
 vs. 
 G D, 
 
 Defendant. 
 
 This cause being at issue by filing replication to the answer 
 of the above named defendant, and more than ten days having 
 elapsed since the filing of said replication, and no notice of 
 an application for taking the examination of witnesses in 
 open court having been given by either party, on motion of 
 E F, solicitor for said complainant in die above entitled 
 cause, ordered that the parties therein produce their wit- 
 nesses and take their testimony in said cause within sixty 
 days after notice of this order. 
 
 E F, 
 Solicitor for complainant. 
 
170 TESTIMONY. 
 
 Testimony — Notice of Order to take Proofs, etc. 
 
 No. 82. Notice of order to take proofs. 
 
 {Title cov/rt and cause.) 
 To G H: 
 
 Solicitor for defendant. 
 Sir: You will please to take notice that the forr goiig is a 
 true copy of an order to produce proofs, this day eutered in 
 the above entitled cause. 
 Dated, etc. 
 
 Yours, etc. 
 
 EF, 
 Solicitor for complainant. 
 
 No. 83. Affidavit for order to close proofs. 
 
 {Title court and cause.) 
 
 County, ss. 
 
 G H being duly sworn, deposes and says that he is the 
 
 solicitor for the above named defendant; that upon the 
 
 day of , A. D. 18 — . E F, the solicitor for said complainant, 
 
 served upon deponent a notice of an order to take the proofs 
 in said cause within sixty days from the service of said notice. 
 Deponent further says that more than sixty days have elapsed 
 since he received said notice, as aforesaid, and further deponent 
 says not. 
 
 G H. 
 
 Subscribed, etc. 
 
 No. 84. Order closing proofs. 
 
 {Title court and cause.) 
 
 Tiiis cause being at issue and an order having been duly 
 entered and served to take proofs in the same witliin sixty 
 days from the date thereof, and proofs having been taken in 
 pursuance of said order, and more than sixty days having 
 elapsed since the entry of said order and the service of a notice 
 of said order, on motion of G H, solicitor for defendant, it 
 is ordered tJiat the proofs in said cause be, and the same are 
 hereby closed. 
 
 GH, 
 Solicitor for defendant. 
 
TESTIMONY. 171 
 
 Testimony — Notice to Commissioners. 
 
 iFo. 85. Notice to commissioner of order closing proofs. 
 
 [Title court and cause.) 
 To I J, Esq., 
 
 Circuit Court Commissioner, 
 
 County, Michigan. 
 
 Sir : Please »to take notice that an order has this day been 
 entered in said canse, closing proofs in the same. Yon will 
 please tile, with the register of said court, thd proofs that have 
 been taken before you. 
 Dated, etc. 
 
 Tours, etc. 
 
 GH, 
 Solicitor for defendant. 
 The commissioner, within ten days after notice of the order 
 to close the proofs, should return and file the proofs taken and 
 introduced before him with the register, (a) 
 
 No. 86. Notice to solicitor of order closing proofs. 
 
 {Title court and cause.) 
 To EF, 
 
 Solicitor for complainant. 
 Sir : You will please take notice that the annexed is a true 
 copy of an order closing proofs, this day entered in the above 
 entitled cause 
 Dated, etc. 
 
 Yours, etc. 
 
 GH, 
 Solicitor for defendant. 
 After an order is entered to take proofs in a cause, either 
 party may serve notice upon his opponent of the taking of his 
 testimony. The notice must be served at least ten days be- 
 fore the time set for taking the proofs, and should be in the 
 following form. 
 
 No. 87. Notice of examination of witnesses. 
 
 {Title court and cause.) 
 To G H, 
 
 Solicitor for defendant. 
 
 (a) Chancery Rule 58. 
 
172 TESTIMONY. 
 
 Teslimony — Extension of Time — Order Enlarging Time. 
 
 Sir: Yon will please to take notice that the following wit- 
 nesses, to wit: 
 
 John Doe, residence, Michigan, 
 
 John Smith, •' " " 
 
 will be examined on behalf of the above-named complainant, 
 
 before , Esq., a circuit court commissioner in 
 
 and for said connty at his office in the city of : 
 
 in said county and state. Such examination to commence on 
 
 the day of A. D., 18 — , at 10 o'clock a. m., 
 
 and to proceed thereafter as shall suit the convenience of said 
 commissioner. 
 Dated, etc. 
 
 Yours, etc.' 
 
 E E, 
 Solicitor for compl't. 
 
 Extension of time. — Circuit court commissioners, as well 
 as circuit judges, have the power to extend tiie time for 
 taking testimony in a chancery cause, beyond the sixty days 
 allowed by rule. Upon the first application, the order allow- 
 ing further time may be granted npon an ex parte showing. 
 If a second extension is required by tlie same party, notice 
 must be given to the opposite party, and then additional time 
 is only granted upon sucii terms as the court shall prescribe, 
 (a) An application for leave to take testimony after the time 
 allowed by the rules has expired, must siiow excuse for neg- 
 lect, and also show the names and residences of the witnesses 
 and what they are expected to testify. Other engagements 
 of counsel is not sufficient excuse. (5) An ex parte order will 
 not be granted after the time for the examination of witness- 
 es has actually expired, (c) Tl)e showing required to secure 
 an extension of time, is such a showing by affidavit as shall 
 satisfy the judge or circuit court commissioner. 
 
 No. 88. Order enlarging time to talce proofs. 
 State of Michigan, Judicial Circuit. In Chancery. 
 
 (a) Chancery Rule 59. 
 
 (6) Thayer v. Swift, Walk. Ch. 384. 
 
 (c) Chancery Rule 59. 
 
TESTIMONY. 173 
 
 Testimony — Proceedings before tlie Commissioner. 
 
 Suit pending in the Circuit Court for the County of , in 
 
 chancery, at , on the day of , A. D. 18 — . 
 
 {Title of cause.) 
 
 In the above entitled cause, an order for the enlargement of 
 the time for examination of witnesses therein having been 
 
 applied for before me by said defendant, on this the day 
 
 of , A. D. 18 — . On reading and filing the petition, duly 
 
 verified, of said defendant for that purpose, and it appearing 
 to me from said petition, that sufficient cause is shown for 
 such extension, and that tlie time has not heretofore been ex- 
 tended by an order of said court, and that the time for taking 
 the testimony in said cause, as allowed by the rules of court, 
 has not yet expired, therefore, it is ordered and decreed, that 
 the time for tlie examination of witnesses in said cause be and 
 the same is hereby extended, or enlarged, until and including 
 
 the , day of A. D. 18—. A B, 
 
 Circuit Court Commissioner 
 
 In and for said county. 
 
 The order enlarging time should be served upon the oppos,. 
 ing solicitor by handing him a true copy, with a notice at- 
 tached that the same is a true copy, and at the same time, 
 showing him the original order. The original order must be 
 tiled in the cause, with the register, and an affidavit show- 
 ing service of a true copy upon the opposing solicitor, should 
 also be filed. 
 
 Proceedings hef ore the com,miss loner. — Commissioners have 
 power to issue subpoenas and to compel the attendance 
 of witnesses. But no witness can be compelled to appear be- 
 fore a commissioner more than forty miles from his place of 
 residence, except by special order of the court, (a) The testi- 
 mony of all witnesses must be reduced to writing by the com- 
 missioner and signed by the witness, and it must he filed' with 
 the register of the court, where the bill and other pleadino-a 
 in the cause are filed. (5) Either party, during the period 
 allowed by the rules for taking proofs, has the right to take 
 his testimoijy in any order he may choose; and the complain- 
 ant is not precluded from ofl^ering proofs, in support of his 
 
 (a) Chancery Rule 57. 
 
 (6) Com. I,aws 1871, § 5090. 
 
174 TESTIMONY. 
 
 Testimony —Proceeding's bsfore the Commissioner. 
 
 original case, by the fact that the defendant has gone into, or 
 gone over his defense. The same is true of the defendant. 
 He may pnt in any relevant testimony at any time before the 
 proofs are closed. The commissioner can not reject testimony 
 offered; it is for the court to decide upon its admissibility, {a) 
 
 It is improper for a master in chancery, or commissioner, 
 acting as master, to perform any official act as master in a 
 cause in which he is solicitor, or a partner of the solicitor, (l) 
 And where the agent or attorney of the complainant examin- 
 ed witnesses and wrote their depositions, and the commission- 
 er before whom they were taken was absent from the room 
 several times during the examination, and the defendant did 
 not appear and cross-examine the witnesses, the proceedings 
 were held to be irregular and the depositions were sup- 
 pressed, (c) 
 
 When, after notice of the examination of witnesses, the op- 
 posite party at the time and place and waits a reasonable 
 time, and no one appears, testimony taken in his absence 
 thereafter is irregular, (d) In such a case a new notice of 
 examination becomes necessary. And so, when the party 
 who has given notice of an examination of witnesses, appears 
 at the time before the commissioner, he may, after waiting a 
 reasonable time for the opposite party, proceed with his ex- 
 amination, ex partre. {e) 
 
 The practice in Michigan, " in the examination of wit- 
 nesses, differs essentially from the practice of the Court of 
 Chancery in England. By the English practice, the examin- 
 ation is in secret, neither the parties nor their counsel being 
 perniitted to be present; and the examination is on written 
 interrogatories. With us, the examination is in the presence 
 of the parties and their counsel, and such other persons as 
 choose to attend; and the witnesses are examined and cross- 
 
 (n) Brown V. Brown, 22 Mich. 246; Collins v. Jackson, 43 Mich. 558. 
 (6) Brown v. Byrne, Walk. Ch. 453. 
 
 (c) Burtch V. Hogge, Har. Ch. 31. 
 
 (d) Stockton v. Williams, Walk. Ch. 120. 
 
 (e) Ibid, 131. * 
 
TESTIMONY, 175 
 
 Testimony — Proceedings before the Commissioner. 
 
 examined by the counsel of the respective parties, as in a trial 
 at law, in the presence of the master wlio takes down their 
 testimonj," and notes the- objections of counsel to the in- 
 troduction of the proofs, [a) 
 
 After a witness has been once examined, and his examina- 
 tion has been closed, he can not be re-examined to the same 
 facts, unless by order of the court; but he may be re-examined 
 as to facts to which he has not been examined, or to new mat- 
 ters arisinoj out of the testimony of other witnesses, (b) 
 
 Tlie practice with regard to impeaching witnesses, in chan- 
 cery cases, is with us, the same as at law. (c) 
 
 The examination in a creditor's suit, under Chancery Rule 
 105, is not confined to tlie defendant's property or effects, brit 
 extends to any matter which he would be required to disclose 
 by answer; and authorizes the examination of witnesses on 
 any matters charged in the bill, and not admitted by the de- 
 fendant on his examination, {d) 
 
 The testimony in chancery causes, when taken before a cir- 
 cuit court commissioner, notary or justice, should be read 
 over to the witness for correction and authentication by their 
 signatures; and this precaution should not be waived except 
 in cases of absolute necessity, {e) 
 
 With regard to the payment of the expense of taking tes- 
 timony before a commissioner, each party pays for his cross- 
 examination of his adversary's witnesses, and for the direct 
 examination of his own ; (/) this is all that a commissioner 
 can compel a party to pay of the expense of taking the proofs 
 in the first instance, and when this has been paid or tendered 
 the court will, on motion, compel the commissioner to file the 
 proofs, if he refuses so to do. {g) 
 
 [a) Sawyer v. Sawyer, Walk. Ch. 48. 
 
 [b) SaivyerY. Sawyer, Walk. Ch. 61; 1 Hoff. Ch. Pr. 464; Swinford v 
 Home, 5 Madd. R. 379. 
 
 (c) Sawyer v. Sawyer, Walk. Ch. 48.. 
 
 (d) Howard v. Palmer, Walk. Ch. 891. 
 - [e] Looker v. Looker, 46 Mich. 68. ; 
 
 (/) Sawyer v. Sawyer, Walk. Ch. 51; Smith v. Ionia Circuit .Tudoe 39 
 Mich. 122. 
 (cf) Smith v. Ionia Circuit Judge, 89 Mich. 122. 
 
176 TESTIMONY. 
 
 Testimony — Proofs taken before Commissioner. 
 
 The rules and practice of the circuit courts in cliaDcery 
 govern the proceedings before a circuit court commissioner 
 so far as they are applicable, (a) 
 
 When a witness in a chancery cause resides in a county 
 other than the'one in which the suit is pending, the party 
 who desires the testimony, may, if he wishes, notice upon the 
 other side, the taking of the proof before some commissioner 
 of the county in which the witness resides. (5) 
 
 Where the testimony of a witness is clearly inadmissible, 
 and its introduction is a plain disregard of the law to the 
 prejudice of a third party, not connected with the suit, the 
 commissioner may decline. to receive the proof, at least until 
 he has taken the opinion of the circuit judge upon the sub- 
 ject. In most cases, it is the duty of the commissioner to 
 take all the testimony that is offered, and leave questions of 
 competency to be passed upon afterward; but there may be 
 cases so outrageous as to constitute exceptions; and the case 
 of making use of the opportunity in order to assail a third 
 party, without right and in distinct violation of a statute, 
 ought to be considered such a case, (c) 
 
 No. 89. Proofs taken hefore commissioner. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 AB, ^ 
 
 Complainant. | 
 vs. Y 
 
 D. 
 
 Defendant. J 
 Depositions and proofs taken on the part of the complain- 
 ant in the above entitled cause, by and before me, E F, a cir- 
 cuit court commissioner, in and for the county of , 
 
 aforesaid, at my office in the city of , in said county, 
 
 on the day of A. D. 18 — . 
 
 G H, Esq., appeared for complainant, 
 I el, Esq., appeared for defendant. 
 
 (a) Chancery Rule 113. 
 
 (b) Lyon v. Branson, 12 N. W. Rep; 32, 48 Mich. — . 
 
 (c) Slorrs v. Scougale, 48 Mich. — , Decided June 7, 1882. 
 
TESTIMONY. ' 177 
 
 Testimony — Certificate — Non-resident Witnesses. 
 
 John Doe, a witness produced, sworn and examined on the 
 part of the complainant, testified as follows: 
 
 (Ilere follows the testimony^ objections and other proceed- 
 ings. The testimony may he taJcen'ljy question and answer, 
 or in narrative fonn^ 
 
 Signed, 
 
 John Doe. 
 Subscribed and sworn to before me, 
 
 this day of , A. D. 18—. 
 
 ■ EF. 
 Circuit Court Commissioner, 
 
 -■ — county, Mich. 
 
 The direct, cross, re-direct and re-cross examination of a 
 witness should each be signed by him, and the fact of his 
 signing and swearing to the same be certified to by the com- 
 missioner as in the foregoing. 
 
 No. 90. Certificate of commissioner on filing pi'oofe. 
 
 {Title of court and cause!) 
 
 I hereby certify that the foregoing are the depositions of the 
 witnesses produced, sworn and examined on the part of the 
 complainant in the above entitled cause. 
 Dated, etc. E F, 
 
 Circuit Court Commissioner, 
 
 county, Mich. 
 
 SECTION II. 
 
 DEPOSITIONS OF NON-EESIDENT WITNESSES. 
 
 If a party wishes to examine witnesses residing out of tiie 
 State, or more than thirty miles from the residence of a cir- 
 cuit court commissioner, or when all of the circuit court com- 
 missioners are interested, living within that distance, as coun- 
 sel or otherwise, either party may, at any time after issue is 
 joined and before proofs are closed, or when the case is at 
 default, present a petition to the register where the suit is 
 pending, stating the names and residences of the witnesses 
 and of the person or persons proposed as commissioners, and 
 praying that a commission may be issued to take the exami 
 12 
 
178 TESTIMONY. 
 
 Testimony — Petition to Regrister. 
 
 nation of such witnesses; and ten days' notice of the applica- 
 tion shall be given to the adverse party if he has appeared. 
 If the adverse party does not appear and join in the commis- 
 sion, or object to the persons named as commissioners, a 
 commission shall be issued agreeably to the prayer of the 
 petition, {a) „ 
 
 The circuit judge also has power to cause a commission 
 to issue to take testimony in any chancery c^use. (5) 
 
 No. 91. Petition to register that commission issue. 
 
 {Title of court and cause.) 
 
 To E F, Kegister in Chancery, in and for said County. 
 
 The petitioner of D, respectfully represents to tlii« 
 honorable court that he is the defendant in the above entitled 
 cause, which cause is now pending in said court. He also 
 shows that said cause is at issue, and that the proofs have not 
 been closed. 
 
 Petitioner further shows that he has fully and fairly stated 
 the I'acts that lie is informed that John Doe residing in the 
 city of New York will testily to in said cause, to G H, his 
 solicitor, and that he is advised by his said solicitor that the 
 testimony of said John Doe, is material and necessary to 
 petitioner, in his defense. 
 
 Your petitioner therefore prays that a commission may be 
 issued to take the examination of John Doe, residing out of 
 
 this State, and at No. 400, street, in the city of New 
 
 York, that said commission may be directed to Richard Hoe 
 residing at {No. and Street), in the city of New York, au- 
 thorizing and empowering him to take the testimony of said 
 John Doe, upon oath and upon written interrogatories, to be 
 hereunto annexed, and to return the same when taken to the 
 register of this court. 
 
 GH, CD. 
 
 Solicitor for defendant. 
 
 State of Michigan, ] 
 County of f ^^• 
 
 On this day of ■ — A.D. 18 — , personally appeared 
 
 before me the aboved named C D, and made oath that he has 
 [reader heard read) the foregoing petition by him subscrib- 
 
 («) Chancery Rule 48. 
 
 (6) Comp. L. 1871. § 5085; Chancery Rule 51. 
 
TESTIMONY. 1'9 
 
 Testimony— Notice of Application— Commission to take Testimony. 
 
 ed, and that the same ia true of his own knowledge, except as 
 to matters tlierein stated on information and belief, and as to 
 those matters, he believes it to be true. 
 
 I J, Xotary Public, 
 
 County, Michigan. 
 
 No. 92. Notice of of plication for commission. 
 
 {Title court and cause.) ■ 
 To K L, 
 
 Solicitor for complainant. 
 Sir: You will please to take notice that the annexed is a trne 
 copy of a petition that I shall present to , Esc[., regis- 
 ter of said court, at liis office, in the city of , at ten 
 
 o'clock of , the day of , A. D. 18 , (at 
 
 least ten days' notice must be given.) You are at liberty to 
 join in said commission if you so desire. 
 
 Dated, , etc. 
 
 G H, 
 Solicitor for defendant. 
 
 No. 93. Commission to take testimony. 
 
 State of Michigan, ) 
 County of f 
 
 In the Circuit Court for the County of . In Chancery. 
 
 In the name of the People of the State of 
 [seal.] Michigan : 
 
 To and , of , in the 
 
 State of , GEEETiNa : 
 
 Whereas, it appears to our circuit court for the county of 
 
 , in chancery, that are material witnesses in a 
 
 certain cause how pending therein, between , complain- 
 ant-, and defentlant-, and that the said witnesses are 
 
 not residents of the State of Michigan, we, in confidence of 
 your prudence and fidelity, have appointed you, or either of 
 
 you, commissioners to examine the said , and therefore 
 
 we authorize and empower you, or either of you, at certain 
 days and places to be by yon, or either of you, for that pur- 
 pose appointed, diligently to examine the said witnesses, or 
 each of them, as shall be produced before you, and each .apart, 
 on the interrogatories annexed to this commission, on their 
 respective corporal oaths (or affirmations) first taken before 
 you or either of you, and cause the said examination to be re- 
 
180 TESTIMONY. 
 
 Testimony — Instruction to Commissioners. 
 
 duced to writing and signed by said witnesses, respective])', 
 and by yourselves, or such of you as are present at the taking 
 of the same, and then return the same, annexed to this com- 
 mission, into onr said court, with all convenient speed, 
 inclosed under your seals or tlie seal of such as are present at 
 the execution of this commission. And you will in all tliinij's 
 be governed in the business by the instructions hereto an- 
 nexed. 
 
 Witness the honorable , circuit jndge, at , 
 
 this — day of , in the year of our Lord one thousand 
 
 eight hundred and . 
 
 , Register. 
 
 No. 94. Instructions to commissioners. Annexed to com.- 
 
 raission.* 
 
 First. — Any one of the commissioners may execute the 
 commission. 
 
 Second. — The witness, before he is examined, must take an 
 oath or affirmation, to be administered by the commissioners, 
 that the answers to be given by liim to the interrogatories an- 
 nexed to the commission, shall be the truth, the whole truth, 
 and nothing but the truth. 
 
 Third. — The examination of the witnesses must be reduced 
 to writing by the commissioner or by some one in his presence, 
 and under his direction, and must be signed by the witness 
 and certified by tlie commissioner as follows: 
 
 Examination taken, reduced to writing, and sworn to (or 
 
 affirmed) this day of , A. D. , before me, , 
 
 commissioner. 
 
 Fourth. — Exhibits must be annexed to the deposition of the 
 witnesses, and be signed by him and the commissioner. 
 
 Fifth. — The commissioner must subscribe each sheet of the 
 deposition, annex the deposition and exhibits to the commis- 
 sion, and indorse his return on the b^ck of the commission. 
 
 "The execution of this commission appears in certain sched- 
 ules hereunto annexed." 
 
 Commissioner. 
 Sixth. — The commissioner must inclose the commission, 
 interrogatories, depositions, and exhibits in a packet, and bind 
 it with tape, and set Jiis seal at the several meetings or cross- 
 ings of the tape, and direct it: " To the register of the cir- 
 
 * Chancery Enle 52. 
 < 
 
TESTIMONY. 181 
 
 Non-resident Witnesses — Form of Oath — Affirmation — Caption. 
 
 cnit court for tlie county , in cliancery, , State 
 
 of Michig'an." 
 
 Seventh. — He innst then deposit the commission in the 
 post office, unless tliere are written directions on the commis- 
 sion to return the same in anotlier way. 
 
 No. 95. Form of oath. 
 
 "You do solemnly swear that the answers sjiven by you to 
 the interro.^atories proposed to you, shall te the truth, the 
 whole truth, and nothing but the truth — so help you God." 
 
 No. 96. Form of affirmation. 
 
 '•You do solemnly and sincerely affirm, that the answers 
 given by you to the interrogatories proposed to vou, shall be 
 the truth, the whole truth, and nothing but the' truth. This 
 you do under the pains and penalties of perjury." 
 
 In all cases certify the mode of administering the oath. 
 
 No. 97. Form of caption. 
 "Deposition of , of , in the State of 
 
 a witness, produced, sworn, and examined on the day of 
 
 , A. D. 18 — , at , in the State of , by virtue 
 
 of a commission issued out of the circuit court for the county 
 
 of , in the State of Michigan, in chancery, on the '- 
 
 day of -, A. D. 18—, and directed to us (or me), , 
 
 or eitherof us, commissioners for the examination of ' 
 
 witness in a cause depending in said court, between ' 
 
 complainant-, and , defendant-, on the part of said 
 
 Having read said commission, and the instructions thereto 
 annexed, and having administered an oath to said witness 
 that the aiiswers given by him to the interrogatories proposed 
 to him should be the truth, the whole truth,''and nothino' but 
 the truth, we (or I) proceed to the examination as follows!'viz. : 
 
 ) of , in the State of , aged years' 
 
 and upwards, a witness produced, sworn and examined on the 
 ])art of the — ■ , in said cause deposeth as follows, viz.: 
 
 First. — To the first interrogatory, etc. 
 
 Second. — To the second interrogatory, etc. 
 
 To any interrogatory to which the witness can not depose 
 knowing nothing of the matter therein contained, let the an- 
 swer be as follows: 
 
182 TESTIMONY. 
 
 Non-resident Witnesses — Form of Caption. 
 
 " To the interrogatory, this deponent saith, that he 
 
 knows nothing and can depose nothing, to tlie matter therein 
 contained." 
 
 If the adverse party wislies to join in tlie commission, he 
 must, at the time of presenting the petition, furnish the 
 names and residences of the witnesses on iiis part, and they 
 shall be inserted in the commission. If he is not satisfied 
 with the commissioners named in the petition, he may name 
 commissioners on his part; and the register to whom the pe- 
 tition is presented, after hearing the allegations of the parties, 
 shall designate a suitable person or persons to execute the 
 commission, and issue the same accordingly; but any of the 
 commissioners named in the commission may execute the 
 same, on case the others neglect or refuse to join in the execu- 
 tion thereof, or they are, for any cause prevented, {a) 
 
 Witnesses to be examined out of tlie State shall be exam- 
 ined in written, direct and cross- interrogatories, to be allowed 
 by a circuit court commissioner, and annexed to the commis- 
 sion. Copies of interrogatories proposed, shall be served with 
 notice of an application of the allowance thereof, at least five 
 days before the time fixed for such application, and at the 
 time and place of the settlement of such interrogatories, the 
 adverse party shall propose his cross-interrogatories, unless 
 furtlier time is allowed him for that purpose by the officer 
 settling the same. (5) 
 
 On the commission being returned, the register shall open 
 the same, indorse upon it the time and manner of receiving 
 it, and then tile it. (o) Upon receiving any deposition taken 
 within or without this State, on commission or otherwise, the 
 the register shall notify the solicitor of the party on whose 
 behalf it was taken, and such solicitor shall notify the opposite 
 solicitor, {d) Any motion to suppress a deposition must be 
 made within ten days after the solicitor making the motion 
 
 (a) Chancery Rule 49. 
 (h) Chancery Rule 50. 
 
 (c) Chancery Rule 53. 
 
 (d) Chancery Rule 54. 
 
TESTIMONY. 183 
 
 Taking Testimony in Open Court. 
 
 has been notified of its receipt. No deposition will be sup- 
 pressed on the hearing of a cause for informality or irregular- 
 ity in taking the same, but the matter must be brought beibi-e 
 the court, on a special motion for that purpose, made within 
 the time above stated, {a) But no motion is necessary to 
 suppress depositions that are taken after the proofs are 
 closed. (5) And a deposition on file, recognized as in the 
 cause by a stipulation, will not be excluded on the hearing if 
 there was no motion to suppress it, even if the stipulation was 
 not in proper shape, (c) 
 
 SECTION III. 
 
 TAKING TESTIMONY IN OPEN COUET. 
 
 As we have seen in section one of this chapter, either partv 
 may claim the right to take his proofs in open court, (f/) 
 "When this is done, the court sits, as does the circuit court 
 commissioner, with no power to control the order of proofs, 
 to any extent, and with no power to rule out or to refuse to re- 
 ceive testimony. («) The stenographer usually takes down 
 the testimony, and the proceedings are much the same as 
 when the testimony is taken before a commissioner. Where 
 either party has taken the proper steps to have witnesses ex- 
 amined in open court, the circuit judge has no power, at 
 chambers, to order the proofs to be taken by a commissioner; (f) 
 and such void order can not receive any vitality, nor can 
 any validity be given to proofs taken under it, by virtue of a 
 subsequent order, entered nunc pro tunc, {g) 
 
 The court, even when proofs are taken before a commis- 
 
 (a) Chancery Eule 54. 
 
 lb)AhT>ot V. Alsdorf, 19 Mich. 157. 
 
 (c) Matson v. Melcher, 42 Mich. 477. 
 
 (d) Chancery Rule 47. 
 
 (e) Hewlett v. Shaw, 9 Mich. 346. 
 
 (/) Eslow V. The Township of Albion, 27 Mich. 4. 
 {(/) Eslow V. The Township of Albion, 32 Mich. 150. 
 
184 TESTIMONY. 
 
 Takng Testimony in Open Court — Settling Case. 
 
 sioner, can call upon and compel either party to a cause at 
 issue, or any witness thereto, to testify in open court. It 
 can compel either party to a divorce suit, when at issue or 
 the complainant on bill confessed, to testify in like manner. 
 If a complainant, when called on by the court, neglects to 
 attend and testify, the bill may be dismissed, {a) 
 
 Settling Vase. — It is provided by statute {b) that when a 
 chancery case is tried in open court, either party is entitled to 
 make and settle a case, setting forth the evidence at large be- 
 fore the judge who tried the same, at such time and manner as 
 the judge shall direct, or as shall be prescribed by the rules of 
 court. And such case being made and tiled within sixty days af- 
 ter the entry of the final order or decree therein, the same shall 
 be deemed to be the evidence and proceedings therein, to the 
 same extent and with like effect, as if the testimony had been 
 taken before a circuit court commissioner and the cause con- 
 ducted according to the ordinary practice in chancery. The 
 circuit court in which such case has been tried, or the judge 
 thereof, shall have power on special motion and proper show- 
 ing, to grant an extension of the time for making and filing 
 such case for a period not exceeding three months from and 
 after the date of the entry of such decree or final order, and 
 upon the case so made and filed, an appeal may be taken to 
 the Supreme (Jourt, by any of the parties, as in ordinary 
 chancery cases. 
 
 A copy of the judge's minutes of the testimony taken and 
 certified to by him is not a settlement of a case within the 
 meaning of the statute, (e) Neither is a copy of tlie stenog- 
 rapher's transcript of his notes of the evidence, which have 
 merely been filed in the cause, and sent up with the return 
 without being in any way authenticated as a case settled, suf- 
 ficient, {d) 
 
 The pi'oper course in this class of cases, whether the testi- 
 
 (o) Chancery Rule 99. 
 
 (6) Session Laws 1877, p. 17. 
 
 (c) Wright v. Dudley, 8 Mich. 76. 
 
 [d] McBride v. Rea, 83 Mich. 347; Moote v. Scrivin, 33 Mich. 500. 
 
TESTIMONY. 1S5 
 
 Taking Testimony in Open Court — Settling Case. 
 
 mony has been taken by a stenographer or not, is for the party 
 desiring the testimony to be certified to tlie Supreme Court, to 
 make a case setting it forth, present it to the circuit judge, 
 and procure his order, fixing the time and place, when and 
 where it shall be settled, and give notice to the opposite party, 
 that he may attend and propose amendments; or instead there- 
 of to take other proceedings equivalent. The practice should 
 be assimilated, as near as may be, to that of making cases for 
 review at law. This course will secure to each party a full 
 opportunity to have tlie testimony exhibited in the Supreme 
 Court substantially, if not literally the same as that exhibited 
 below, (a) 
 
 When proofs have been taken in open court in a chancery 
 cause, an appeal taken, and an efibrt made to have the case 
 settled under and within the time fixed by the statute, but 
 which failed or was imperfectly done from circumstances not 
 caused by or within the control of the appellant, such as the 
 failure of the stenographer to furnish a copy of the testimony, 
 or the circuit judge to properly settle or certify the same, 
 the appellant may in the Supreme Court have an order extend- 
 ing the time to perfect his appeal; or if return has been made, 
 the proper certificate may be obtained from the circuit judge 
 and filed with the record, that the case was settled and that 
 the proofs returned are correct. In such cases, the Supreme 
 Court having obtained jurisdiction of the cause, an opportun- 
 ity will be afforded the appellant to correct such defects as 
 were not caused solely by his own negligence, (b) 
 
 The original minutes of oral testimony taken in open cpurt 
 in a chancery case, must not be removed from the files to be 
 used as copy in printing the record, unless by order of the 
 Supreme Court, (c) 
 
 {a) Wright v. Dudley, 8 Mich. 77. 
 {b) Graves i.Wasey, 45 Mich. 224. 
 (c) Lamb v. Hinmart, 46 Mich. 112. 
 
186 TESTIMONY. 
 
 Proving Documents at Hearing. 
 
 SECTION IV.- ■ 
 
 PEOVINO DOCUMENTS AT HEAEING. 
 
 Documents which are of themselves evidence without fur- 
 ther proof, shall not be read on the hearing, unless they have 
 been made exhibits before the commissioner, and no deed or 
 other writing shall be proved at the hearing, except on an 
 order previously obtained after dne notice to the adverse 
 party.- But where any deed or other instrument in writing 
 which is duly acknowledged or proved in such manneras to au- 
 thorize it to be read in evidence, is stated in the bill, or where 
 any judgment or other matter of record is set out or distinctly 
 stated in the bill, such deed or instrument, or an authenti- 
 cated copy of the record, may in a:ll cases be read upon the" 
 hearing of the cause, unless the defendant in his answer de- 
 nies the due execution of said deed or instrunient, or the 
 existence of such record, either positively or according to his 
 belief. («) 
 
 The documentary evidence referred to above, has reference 
 to documetits which prove themselves. But to entitle a party 
 to use such documentary evidence in any case, there must 
 have been an order entered to take- proofs, to give the oppo- 
 site party an opportunity to examine witnesses relative there- 
 to, or of introducing countervailing proofs. (5) 
 
 By referring, in a bill of, complaint, to a deed or other in- 
 strument in this wise, "as in and by said indenture, reference 
 being thereunto had, when produced will more fully and at 
 large appear," the whole document referred to is made a part 
 of the record, although not fully or accurately recited in the 
 bill, and the complainant may, at tlie hearing, avail himself 
 of such portions as are "not recited, and also those portions 
 inaccurately set forth, (c) 
 
 (a) Chancery Rule 56. 
 
 (6) Bachelor-^. Nelson, Walk. Oh. 449; Jerome v. Seymour, Har. Ch. 
 255. 
 (c) Swetland v. Su-etkiiid, 3 Mich. 482. 
 
TESTIMONY. 187 
 
 Stipulation to Take Testimony. 
 
 A mortgage or other security set forth and referred to in 
 the bill, and made a ground of relief, becomes a necessary 
 part of the record, and if not denied in the answer, needs no 
 formal proof; («) and documentary evidence submitted at the 
 hearing, need not, for the purposes of appeal, be authenticated- 
 by the judge, {b) 
 
 SECTION V. 
 
 STIPULATION TO TAKE TESTIMOXT. 
 
 In 1881 the legislature of Michigan passed an act(c) designed 
 to facilitate the taking of depositions, which provides " that 
 whenever, in any cause pending in a court of record, all the 
 parties who have appeared therein shall make and file a stip- 
 ulation consenting that the depositions of witnesses in said 
 cause may be taken by and before a notary public, justice of 
 the peace, or other officer authorized to administer oaths, the 
 officer so designated shall thereafter have all the authority of 
 a circuit court commissioner to take depositions in said cause, 
 and either party to such stipulation may give notice of the 
 taking of depositions and the examination of witnesses in 
 said cause before such officer, and such notice shall have the 
 same force and effect as the notice of the taking of depositions 
 before a circuit court commissioner under the present prac- 
 tice. Such depositions may be read on the hearing or trial 
 of the cause, in the same cases and with the same force and 
 effect as depositions taken by a circuit court commissioner, 
 under the present practice. The practice in taking such depo- 
 sitions shall be the same as is provided by law for the taking 
 of depositions in similar cases before circuit court commis- 
 sioners, except as herein otherwise provided. The clerk of 
 said court is hereby authorized to issue subpoenas in the cause 
 to compel the attendance of witnesses before such officer." 
 
 (a) Mickle v. Maxfield, 42 Mich. 804. 
 (6) Stone v. Welling, 14 Mich. 514. 
 (c) Lans., 1881, p. 91. 
 
188 TESTIMONY. 
 
 Stipulation to Take Testimony. 
 
 " It sliall be competent for tlie parties to such stipulation to 
 agree that the testimony of witnesses to be taken before such 
 officer may be taken, in the first instance, stenographically, and 
 the stenographer taking the same shall then read over the said 
 testimony to the witness, from the said stenographer's notes, and 
 after being so read to the witness, and corrected, or approved 
 by him, shall be afterward transcribed in long hand, by or 
 under the direction of the officer before wlioni it was taken. 
 The testimony of any witness so taken and transcribed, shall 
 for all purposes be treated as the deposition of the witness: 
 Provided, that all otlier requirements of the law in relation to 
 the taking of such deposition be complied with, unless such 
 requirements be waived by stipnlation: Provided, further 
 that, when desired by the witness, he may sign his testimony 
 after it has been transcribed in long hand." 
 
 "The officer before whom such testimony is taken, as here- 
 inbefore provided, shall be entitled to receive for his services, 
 the same compensation that is now allovi'ed by law for taking 
 depositions in similar cases, and if any otlier person is em- 
 ployed as stenographer, he shall be entitled to such compen- 
 sation as may be agreed upon by the parties." 
 
 '•Upon being paid his fees, as allowed by law, the officer 
 taking the depositions in accordance with tjie provisions of 
 this act, shall file the same with the clei'k or register of the 
 court in which the action is pending, and in case the deposi- 
 tion is taken stenographically, the stenographer's notes and 
 the copy in long hand made therefrom, shall both be filed 
 with said clerk or register. 
 
 A stipulation to take proofs as above provided, before anotary 
 or justice named, beginning on a specified day, and continuing 
 from day to day until completed, does not prevent closing 
 proofs by common order, where the usual order to take proofs 
 within sixty days has been entered before the stipidation, and 
 the time has afterward been regularly extended bj' further 
 order, {a) 
 
 (a) Damouth v. Kloclc, 29 Mich. 289. 
 
TESTIMONY. ISO 
 
 Special Reference to Commissioner. 
 
 SECTION VI. 
 PRODUCTION OF BOOKS AND PAPERS. 
 
 Under Circuit Court Rule 40 (law), the circuit judge, in 
 cases therein specified, has the power upon petition made, to 
 compel the production of books papers and documents per 
 taining to the cause. The petition must show that the in- 
 formation sought can not otherwise be obtained, as by sub- 
 pcETia d%iGes tecum (a) 
 
 If a party refuses to produce books and papers, his oppo- 
 nent may give secondary or parol proof of their contents, if 
 they are shown to be in the possession of the opposite party, (b) 
 
 The notice should be given seasonably, in order to give the 
 party reasonable time to produce the original, (c) 
 
 A certified copy of a deed from the record can be used, on 
 the proper preliminary proof being made, without notice to 
 the opposite party to produce the original, (d) 
 
 For a form of notice to produce books or documents, see 
 Puterbaugh's Com. Law. PI. and.Pr. pp. 771-772. 
 
 Documents, etc., in hands of third persons. — Tf docu- 
 ments, the production of which is desired, are in the posses- 
 sion of one who is not a party to the suit, he may be com- 
 pelled by a subpcBna duces tecwm to produce them; and if 
 the std)pcBna is not obeyed, he will be punished for contempt, 
 on proof by affidavit that the documents are in his custody, {e) 
 
 (a) Curnmery. Kent, Circuit Judge, .38 Mich. 351. 
 
 (b) Rector v. Eecfor, 3 Gilm. 105; Pretttjman v. Wolstoit, 34 Til. 190. 
 
 ((0 Codyy. Hough, 20 111. 43; Warner v. Campbell, 26 111. 282; Bush- 
 nell V. Bishop Hill Colony, 28 111. 204. 
 {d) Bowm-tn v. Wettig, 39 111. 416; Deininger v. McConnell, 41 111. 228. 
 (e) 3 Greenl. Ev. § 305; also, see 1 Id. §§55S, 559. 
 
190 TESTIMONY. 
 
 Special reference to Commissioners. 
 
 SECTION VII. 
 SPECIAL EEi'EEENCE TO COMMISSIONEE. 
 
 "When a disputed question of fact is referred to the master 
 in chancery, it is his duty to appoint a day and place for the 
 examination of witnesses before him, and summon the opposite 
 party, (a) He should take down the testimony, so that the 
 same may be used by the court if necessary; and should report 
 in writing the facts, and his conclusions thereon; and the 
 questions of law may be reserved for the court. Each party 
 should have notice of the report before it is made, and may 
 file exceptions thereto before the master, to enable him to cor- 
 rect it if he thinks proper; and if the master still adheres to 
 his report, he returns it into court, where the party objecting 
 may file exceptions; upon the hearing of which, the whole evi- 
 dence is brought forward, and passes in review before the 
 court. (5) 
 
 Parties must produce their testimony at the time and place 
 appointed by the master, (c) In cases of default and reference, 
 no notice of the time and place of taking the testimony is 
 necessary. But it is said that the parties may appear and file 
 exceptions, (d) 
 
 If exceptions are not taken before the master, and overruled 
 by him, the report can not be questioned before the appellate 
 court, (e) But if an improper decree is rendered, it will be 
 reversed, although no exceptions were made to the master's 
 report, (y) As to proceedings, before commissioner on refer- 
 ence, see Chancery Rules 70 to 79 inclusive. 
 
 (a) Chancery Rule 70, 72 and 73. 
 
 (b)McClayv. Norris, 4 Gilm. 370; Brochman v. Aulger, 12 111. 277; 
 Whiteside v. Pulliam, 25 111. 285; Sutphen v. Cushman, 35 111. 202; Lasicell 
 Y. Robbins, 39 111. 210; Campbell v. Hannan, 43 111. 19; Story v. Living- 
 ston, 13 Pet. U. S. R. 359; Gunnellv. Bird, 10 Wall. U. S. R. 306. 
 
 (<;) Whiteside v. Pulliam, 25 I11.-285; Chancery Rule 74. 
 
 (d) Moore v. Titman, 33 lU. 359. 
 
 («j) Reigard v. McNeil, 38 111. 401. 
 
 (/) Strang v. Allen, 44 111. 429. 
 
, TESTIMONY. 191 
 
 Spscial Reference — Order to take Proof— Commissioner's Eeporfc. 
 
 No. 98. Order of reference to commissioner to take proof. 
 
 {Caption, and title of cause.) 
 
 This cause came on to be heard (or to be furtlier heard, as 
 the case may be,) at this term, and was argued by counsel; and 
 thereupon, upon consideration thereof, it was ordered, adjudged 
 and decreed as follows, viz. : that this cause be and the same 
 is hereby referred to A B, one of the circuit court commis- 
 sioners in and for said county, to take the proof of the re- 
 spective parties; tliat the said commissioner give notice to the 
 said parties respectively, of the time and place where such 
 proof will be taken, according to the rules and practice of this 
 court, and cause to come before him all sucli witnesses as the 
 respective parties may desire, and to examine them severally 
 on oath, and reduce their testimony to writing, and report the 
 same, togetlier with his conclusions, to the court. 
 
 Wo 99. Commissioner's report of testimony. 
 
 {Title of court and cause.) 
 
 To the Circuit Court for the County of . In Cliancery. 
 
 In pursuance of an order of this court, made in the above 
 
 entitled cause, on the day of , 18 — , whereby it was 
 
 referred to the subscriber, one of the circuit court commissioners 
 for said county, to take the proof of the respective parties, and 
 report the same to the court: 
 
 I, the said circuit court commissioner, do hereby respect 
 fully report that, having first summoned the said parties, and- 
 notified them of the time and place, when and where the said 
 testimony would be taken, and caused to come before me all 
 such witnesses as the respective parties desired or made known 
 to ine, and having been attended by the solicitors of the re- 
 spective parties, 1 did, on the day of , 18 — , at my 
 
 office in , proceed to take the proofs of the respective par- 
 ties; and the several witnesses attending having been seve- 
 rally sworn, and examined by me, I reduced their testimony to 
 writing, and have attached the same hereto, and make the 
 same a part of this report. 
 
 I would further report that, etc. {Here insert conclusions 
 of facts), and would, therefore, recommend that, etc. {Ilere 
 insert such recommendation as the fa/its may warrant}) 
 
 All of which is respectfully submitted. 
 
 Circuit Court Com-missioner, 
 
 county, Mich. 
 
 Dated this day of , 18 — . 
 
192 TESTIMONY. 
 
 Special Reference — Objections to — Exceptions to Commissioner's Report. 
 
 Either party may file objections to the master's report be- 
 fore he returns it into court. The objections may be iu the 
 followins: form; 
 
 No. 100. Objections to commissioner's report. 
 
 {Title of court cmd cause.) 
 
 Objections taken by the above-named defendants to 
 
 the report of A B, the circuit court commissioner, 
 
 to whom this cause stands referred to take proofs. 
 
 Fi/rst. — For that the said commisr.ioner iias, etc. {Here 
 
 state the ground of objection.) 
 
 Second. — For that, etc. {And so on.) 
 
 In all which particulars tlu- said defendants object to the 
 said report, and submit that the same ought to be varied and 
 
 altered. — — 
 
 Sol.' for defendants. 
 
 If the commissioner adheres to his report, lie returns it 
 into court, where the party objecting may lile his exceptions. 
 
 N'o. 101. Exceptions to commissioner's report. 
 
 {Title court and cause.) 
 
 Exceptions taken by the above-named defendants to 
 the report ot A B, the circuit court commissioner, 
 to whom this cause was referred to take proof, etiC. 
 by an order made herein on, etc., and which report, 
 bears date on, etc. 
 First exception. — For that the said commissioner has, etc. 
 {Here insert the ground of exception.) 
 
 Second exception. — For that, etc. {And so on.) 
 Wherefore the said defendants do except to the said report, 
 and appeal therefrom to the judgment of this court. 
 
 Sol. for defendants. 
 
 The report of a commissioner is received as true where no 
 exceptions are taken, and the exceptions are to be regarded so 
 far only as they are supported by the special statement of tiie 
 
TESTIMONY. 193 
 
 Special Reference — Exceptions to Master's Report. 
 
 master, or by evidence wliicli ought to be brought before the 
 court by a reference to the particular testimony on whicli the 
 exceptor relies, (a) 
 
 Exceptions to a commissioner's report must state article by 
 article those parts of the report which are intended to be ex- 
 cepted to; the exceptions are in tlie nature of a special de- 
 murrer, and the party objecting must point out the error, 
 otherwise the part not excepted to will be taken as admitted. (5) 
 
 No exceptions can be taken to the report of a commissioner 
 unless the objection be made before him, previously to his 
 signing his report, (c) 
 
 Where a cause is referred to a commissioner to examine 
 and report as to any facts in the case, it is his duty to draw 
 the conclusions from the evidence produced before him, and 
 to report that conclusion only; and it is irregular and improper 
 for him to set forth the evidence in his report withont the 
 special direction of the court. If either ptirty excepts to tlio 
 report, he may then obtain certiiied copies from the commis- 
 sioner of the depositions, or other evidence on which the de- 
 cision of the master was founded, to be used on the argument 
 of tlie exception, {d) 
 
 {a) Harding v. Handy, 11 "Wheat. 103; Primv v. Cutler, 69 111. 267. 
 
 {b) Star If V. Livingston, 13 Pet. U. S. R. '6'>'); Dexter v. Arnold, 2 Sum- 
 ner, 108; Wilkes v. Sogers, 6 Johns. Ch. R. 566. 
 
 (c) Methodist Church v. Jaques, 3 Johns. Cli. R.77; Beck rith v. Butler,! 
 Wash. Va. 224; Foote v. Van Banst, 1 Hill, Ch. R. 185; Lewis v. Lewis 
 Minor, 35; Pennell v. Lamar, Ins. Co. 73 111. 803. 
 
 {d) Prince v. Cutler, 69 111. 267; Mott v. Harrington, 15 Vt. 185: Good- 
 man V. Jones, 26 Conn. 264; In the matter of Hemiup, 3 Paige, 306. 
 
194 FEIGNED ISSUES— TRIALS BY JURIES. 
 
 Feigned Issues — Nature of. 
 
 CHAPTER XTI. 
 
 FEIGNED ISSUES — TRIALS BY JUEIES. 
 
 Nature of. — A feigned issue is an issue brought by con- 
 sent of the parties, or the direction of a court of equity, or 
 such courts as possess equitable powers, to determine before a 
 jury some disputed matter of fact, which the court has not the 
 power, or is unwilling to decide, (a) 
 
 There are two methods of trying qnestionsof factbya jury, 
 on issues joined in chancery, viz.: hy feigned issues awarded 
 under tlie old practice, and by issues of facts under the rule 
 wliich provides that in cases where feigned issues have 
 been in use, the issue shall be made hereafter by presenting 
 the questions to be tried in a simple form upon the facts. 
 The issue unless agreed upon, shall be framed by the circuit 
 judge, and in all cases shall be approved by him. [b) 
 
 An issue must be confined to facts put in issue by the 
 pleading, (c) 
 
 The statute provides {d) that " if there be an issue of fact 
 which, in the opinion of the court, shall render the interven- 
 tion of a jury necessary and proper, said court shall, on re- 
 quest of either party, order a jury impaneled for the trial 
 thereof, and the verdict of such jury may be used on the hear- 
 ing, of the cause." 
 
 The'verdict of the jury has no binding force, and is only in- 
 tended as an aid to the conscience of the court, {e) 
 
 A feigned issue may be ordered to determine whether a 
 deed was intended as a mortgage; (_/) or was made to defraud 
 
 (a)Bouv. L. D. 516; 3 Black. Com. 452; Bouv. Inst. Index, h. t. 
 
 (I) Chancery Rule 47; Milk v. Moore, 39 III. 588. 
 
 (c) Dunn v. Vvnn, 11 Mich. 288. 
 
 ((?)Comp. L. 1871, § 5092; SeeBwsseZU. Payne, 45 111. 350. 
 
 (e) Dunn v. Dunn, 11 Mich. 285. 
 
 (/) Williams v. Bishop, 15 lU. 108. 
 
FEIGNED ISSUES-TRIALS BY JURIES. 195 
 
 Feigned Issues — Nature of. 
 
 creditors; {a) or whetJier fraud existed in the consideration of 
 a mortgage. (5) It is also proper where the defendant denies 
 the execution of the note described in tlie mortgage, and the 
 evidence is contradictory; (c) or where a deed is sought to be 
 avoided for insanity of the grantor; id) and, alsOj to test heir- 
 ship, (e) 
 
 A feigned issue need not include all the points involved in 
 the suit, (y ) 
 
 Where the evidence is contradictory, the veracity of the wit- 
 nesses involved, and where the manner, intelligence, and rela- 
 tion of witnesses to a case must have their proper weight, it 
 is highly desirable to have the issue tried by a jury. (^) 
 
 "The chancellor is the sole judge of the evidence and its 
 weight; and, even when he directs an issue of fact to be tried 
 by a jury to inform his conscience, he may adopt the verdict 
 of the jury, or he may disregard it, and render a decree against 
 their finding, or he may grant a new trial, as he may believe 
 justice demands. In our courts of equity, the chancellor be- 
 ing also the common law judge, he necessarily hears all of the 
 evidence upon which the jury acts, and if satisfied the jury 
 have found correctly, it would be his duty to adopt their find- 
 ing; but, if dissatisfied, it would be equally his duty to disre- 
 gard the verdict, and proceed with the cause in such manner 
 as to do complete justice betvs'een the parties." (A) 
 
 The court may award a new trial, not only to satisfy its 
 conscience, but to correct any errors in its instructions to the 
 jury, or any .other errors on the trial. (*) And a court of 
 
 (a)Waddamsv. Humphrey, 22 111. 661. 
 (6) Milk V. Moore, 39 111. 587. 
 (e) Russell v. Payne, 45 111. 350. 
 
 (d) Myatt v. Walker, 44 111. 485. 
 
 (e) McConnell v. Smith, 27 111. 234. 
 (/) Pankey v. Bamn, 51 111. 88. 
 
 ig) Russell v. Paine, 45 111. 350. 
 
 {h) Dunn v. Dunn, 11 Mich. 288; Milk v. Moore, 39 111. 588; Wilhams v. 
 Bishop, 15 111. 553; Sihert v. McAvoy, Id. 108; Burt v. Rynex, 48 Mo. 309; 
 see, iXao, Austin v. Bainter, 50 111. 308; Meeker v. Meeker, 75 111. 260. 
 
 («■) Williams V. Bishop, 15 111. 555; Bigg y. Wilton, 13 111. 15- Milk v 
 Moore, 39 111. 588. 
 
196 FEKINED ISSUES— TRIALS BY JURIES, 
 
 reigned Issues — Issue of Fact tried by Jury. 
 
 chancery is more liberal in granting new trials on feigned 
 issues than courts at law. {a) 
 
 An appeal or writ of error will not lie to set aside a verdict 
 on feigned issues, until the chancery case is disposed of, and a 
 joinder in error will be of no avail, (b) 
 
 It would tend to promote justice, and aid the court in its 
 decree, if the jury were instructed to find on each issue raised 
 by the pleadings and proof, instead of finding a general ver- 
 dict, (c) 
 
 The statute of Illinois provides that, "the court may in its 
 discretion, direct an issue or issues to be tried by a jury, when- 
 ever it shall be judged necessary in any cause in equity, pend- 
 ing therein. In all other causes in equity, the mode of trial 
 shall be the same as has been heretofore practiced in courts of 
 chancery." 
 
 Under this statute, it has been the practice to make an issue 
 without using the common law forms of pleading. But the 
 issue in chancer}', if there be more than one, should be distinct 
 and explicit, presenting in each a single question, so clearly 
 that it could not but be understood by the jury, and their ver- 
 dict should be responsive to each, (d) 
 
 ]Vo.l02.Order directing an issue of fact to he tried by a jury 
 
 (Cajption and title of cause.)' 
 
 This cause came on to be heard upon the pleadings filed and 
 the proofs taken therein, and the court having heard the argu- 
 ments of the solicitors for the respeccitive parties: It is ordered 
 
 that the following issues of fact be made and tried at the 
 
 term of court, to be held in the county of , or as soon 
 
 tiiereafter as the same can be heard, to wit: 
 
 1. Was the deed of conveyance mentioned in the bill of 
 complaint, to wit, etc. {here describe the deed ) obtained by 
 fraud of the defendant ? 
 
 (a) Dunn v. Dunn, 11 Mich. 285; Willard v. Magoon, SO Mich. 278; 
 Waddams v. Humphrey, 22 111. 661. 
 
 [h) Woodside v. Woodside, 21 111. 207; Brockett v. Bruckett, 3 How. 
 U. S. R. 691. 
 
 , (c) Von Glahn v. Von Glahn, 46 111. 134. 
 , \d) Milk V. Moore, 39 111. 588. 
 
FEIGNED ISSUES-TRIALS BY JURIES. 197 
 
 Feigned Issues — Settling a Feigned Issue. 
 
 2. Was, etc. {Here state any other fact to ie tried ly 
 the jury, aiid so on.) 
 
 The course of proceeding upon the trial of an issue is gener- 
 ally the same as tliat adopted in ordinarj' trials at law; except 
 where the court of cliancery has given some special directions 
 upon the subject, {a) 
 
 Drawing up and settling a feigned issue. — ^Under the 
 modern practice as it exists in Michigan, a resort to the old 
 yjractice of ordering a feigned issue, will seldom be had. If 
 it is considered desirable to form a feigned issue, instead of an 
 issue of facts under the rule, forms of such orders, declarations 
 and pleas, raa_v be found in 2 Barbour's Chancery Practice, 
 pp. 483-486, and 2 Chitty's Pleadings, p. 236. 
 
 Upon the granting of an order fur a feigned issue, a draft 
 of the pleadings in an action of assumpsit is prepared by the 
 complainant's solicitor, or by the solicitor of whichever party 
 is ordered by the court to prepare it. In tlie declaration the 
 pretended plaintiff declares tliat he laid a wager of a certain 
 amount, with the defendant, on the questions in dispute; and 
 avers that the fact is as he contended it was, and that he there- 
 fore brings his suit- for the amount of the wager. Tlie 
 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, (b) 
 
 (a) 2 Dan. Ch. Pr. 742; 1 Barb. Ch. Pr. 451. 
 lb) 1 Bai-b. Ch. Pr. 463; 2 Smith, Ch. 80. 
 
198 HEARING. 
 
 Notice of Hearing. 
 
 CI-IAPTER XIII. 
 
 HEAETNG. 
 
 Notice of hearing. — After the proofs are closed, either 
 party may notice the cause for liearinw at the next or some 
 subsequent term. It shall not be necessary in any case to 
 obtain an order to set a cause down for hearing, but when a 
 cause is ready for hearing on plea or demurrer, bill and an- 
 swer, pleadings and proofs, exceptions to a commissioner's 
 report, or on the equity reserved, either party may notice the 
 same for liearing, and liave the cause entered on the calendar 
 of causes for the term, {a) 
 
 When the time has expired for answering amendments toa 
 bill, the case can be noticed for hearing, (b) A notice for 
 hearing for any time after the opening of term, but specifying 
 no day, is irregular, and would not authorize an ex parte hear- 
 ing; but the irregularity can be waived, (e) 
 
 All notices of hearing, or of special motions, or of the pre- 
 senting of petitions when required, shall'be notices of at least 
 eight days, if the solicitor of the adverse jjarty resides over 
 one hundred miles from the place where the court is held; 
 if over fifty and not exceeding one hundred, six days' notice 
 shall be given; and in all other cases at least four days. And 
 ft, copy of the petition, affidavit, or certificate on which any 
 special application is founded, shall be served on the adverse 
 party the same length of time previous to making the appli- 
 cation to the court, {d) 
 
 No. 103. Notice of hearing. 
 
 State of Michigan. 
 
 In the Circuit Court, for the County of . In Chancery. 
 
 {Title of cause.) 
 
 (a) Chancery Eule 60. 
 
 (6) Munch V. Shabel, 37 Mich. 167. 
 
 (c) Ibid. 
 
 (dl Chancery Rule 61. 
 
HEARING. 199 
 
 Case and Abbreviation of Pleadings — How Calendar to bo Made Up. 
 
 Pleaso take notice, that this cause will bo brought to a hear- 
 ing on , before the circuit court for the county 
 
 of , sitting in chancery, on the day of , 
 
 18 — , at the opening of the court on that day, or as soon there- 
 after as counsel can be heard. 
 
 Dated the day of , A. D. 18—. 
 
 Yours, etc., 
 
 AB, 
 Solicitor for complainant. 
 To CD, 
 
 Solicitor for defendant. 
 
 Case cmd abtreviation of pleadings. — When a cause is sub- 
 mitted or heard on bill, answer and replication, or on the 
 pleadings and proofs, if the parties do not agree upon a case 
 to be signed by them, containing with all requisite brevitv, a 
 statement of the pleadings and proofs, the complainant shall 
 furnish the court with a case, statino; the time of iJlino; tiie 
 bill, and of the answer and other pleadings respectively, the 
 names of the original parties in full, the change of parties, if 
 any has taken place pending the suit, and a very brief his- 
 tory of the proceedings in the cause, and containing an abbre- 
 viation of the pleadings, not exceeding one-sixth of the num- 
 ber of folios contained in the original pleadings respectively, {a) 
 
 How calendar to ie made up. — In making up the calen- 
 dar, causes to be heard on bills taken as confessed shall have 
 a preference, and shall be entered according to priority, from 
 the date of the order to take the bill as confessed. Pleas and 
 demurrers shall constitute the second class of causes, and 
 have priority from the time when the plea or demurrer was 
 filed. Causes to be heard on bill and answer shall occupy 
 the third place on the calendar, and have priority from the 
 time when the answers were put in. Those which are to be 
 heard on the pleadings, or on pleadings and proofs, shall form 
 the fourth class, and have priority from the time when the 
 replication was filed. Causes to be heard on exceptions, or 
 upon the equity reversed in a decretal order, shall be placed 
 
 (a) Chancery Rule 62. 
 
200 HEARING. 
 
 Cause to be Noticed — Notice to Register. 
 
 in the class to which they belonged before the decretal order or 
 reference, and according to tlieir priority as it then existed; 
 and causes for reliearing shall be arranged in the same man- 
 ner. But the court, in the hearing of the calendar causes, 
 may, in its discretion, give a prel'erence to any particular 
 cause or description of causes, over others in the calendar. 
 And mortgage cases of the fourth class sliall be entitled to a 
 preference over any other causes of the same class, unless the 
 defendant, before the cause is lieard, shall iile with the regis- 
 ter an affidavit that he has a good and meritorious defense, and 
 that his answers were not put in for the purpose of delay ; the fil- 
 ing of wliich affidavit he shall have noted on the calendar, {a) 
 
 Cause to le noticed for first day of term. — Wotice to 
 register. — Causes sliall be noticed for hearing for the iirst 
 day of term. The notice to the register, specifying the class 
 to wliich tlie cause belongs, and the time from which it is en- 
 titled to priority, shall be delivered to the register, who is to 
 make the calendar, four days previous to the commencement 
 of the term. But if the cause is not in readiness for hearing 
 in time to notice it for the iirst day in term, it may be noticed 
 for a subsequent day in term, and placed at the foot of the 
 calendar: and. if the bill has been taken as confessed, maybe 
 heard out of its regular order. (J) 
 
 When the cause is to be heard in open court, the case must 
 1)3 noticed for the first day in term, and can not be after- 
 ward, (c) 
 
 Where there is no appearance of the defendant, after due 
 proof of the service of process, the complainant may proceed 
 ex parte, and the cause need not be noticed for hearing, or 
 placed on the term calendar, {d) 
 
 [a) Chancery Rule 63; see Comp. L. 1871, Sec. 5074. 
 (i) Chancery Rule 64. 
 
 (c) Dunn v. Judge Superior Ct., Detroit, 29 Mich. 228. 
 {d) Warner v. Jtiif, 38 Mich. 662. 
 
HSARINa. 201 
 
 Note of Hearing — Papers Furnished on Hearing — Rehearing — Exceptions. 
 
 No. 104. Note of issue. 
 
 State of MioHiGA]sr. 
 
 In the Circuit Court for the County of in Chancery. 
 
 {Title of cause ^ 
 
 This canse belongs to the class, and is to be heard 
 
 on {pleadings and proof or as the case may he,) and is 
 
 entitled to priority from the day of 18 — . 
 
 Dated, A. D. 18—. 
 
 Tours, etc., 
 
 A E, 
 Solicitor for complainant. 
 To 
 
 Register. 
 
 Papers to he fwmished on hearing. — When a cause is 
 heard or submitted, or on bill and answer (except in mortgage 
 and partition causes where the complainants' rights are not 
 contested), the court shall be furnished with copies of the 
 pleadings, and an abbreviation thereof not exceeding one- 
 sixth of the number of folios contained in the originals. If 
 it is heard on bill, answer and replication, or on pleadings and 
 proofs, in addition to the case required by the sixty-second 
 rule {a) the court shall be furnished with copies of the plead- 
 ings, and of the depositions, if any, and with short abstracts 
 of the exhibits. (5) 
 
 Papers to he fwrnished on rehearing. — On a rehearing, a 
 copy of the decree or order reheard shall be furnished, and 
 copies of the pleadings, abstracts, case, depositions, etc., on 
 which the same was founded, (e) 
 
 On exceptions. — On exceptions to a commissioner's report, 
 copies of the order of reference, report and exceptions, and of 
 such part of the evidence before the commissioner and of 
 
 [a) Ante. p. 199. 
 (fc) Chaacery Eule 65, 
 (c) Ibid. 
 
202 HEARING. 
 
 Papers Furnished by Whom — Points Delivered — Submission of Causes. 
 
 the pleadings, as are material for tlie decision of the excep- 
 tions shall be furnished. And in all cases the necessary 
 papers shall be delivered to the court where the hearing of 
 the cause shall commence, {a) 
 
 Papers to he furnished hy whom. — If the cause is heard 
 or submitted on plea or demurrer, or on exceptions to a com- 
 missioner's report, or on a rehearing, the necessary papers 
 shall be furnished by the party pleading, demurring or ex. 
 cepting, or who obtained the rehearing. In all other cases 
 the papers shall be furnished by the complainant, except that 
 on an original hearing, upon pleadings and proofs, each party 
 shall furnish copies of the testimony and abstracts of the ex- 
 hibits on his part only. (5) 
 
 Points to he delivered. — ^Each party shall deliver to the 
 court and to the adverse party a copj' of the points upon which 
 he relies, and may also deliver to the court and to the adverse 
 party a draft of the minutes of the decree to which he con- 
 ceives himself entitled, (c) 
 
 All papers must be legibly written, otherwise they can not 
 be tiled. And in entitling and endorsing papers by either 
 party, the complainant's name must be placed first, (d) 
 
 When a cause is noticed by the defendant and the com- 
 plainant does not appear to argue, or does not furnish the 
 papers required, the bill may be dismissed with costs. If the 
 complainant notices the cause and the defendant does not ap- 
 pear, or furnish the papers required from him, the complain- 
 ant may have a decree on default, (e) 
 
 Submission of causes. — All submissions shall be in 
 writing, signed by the necessary parties or by their solicitors, 
 and shall be delivered to the register with the necessary copies 
 
 (a) Ibid. 
 
 (fc) Chancery Rule 66. 
 
 (c) Ibid. 
 
 (d) Chancery Rule 67; Const. Art. XVIII, § 6; Conip. L. 1871, §§ 56, 83. 
 
 (e) Chancery Rule 68. 
 
HEARING. 203 
 
 Submission of Causes — Course of Proceedings. 
 
 and papers. On special motions and petitions, as well as in 
 calendar causes, he shall mark the papers and note them in 
 his minute book, as on a hearing; and he shall not enter the 
 submission until all tlie necessary copies and papers are fur- 
 nished, as required by the rules of the court, (a) 
 
 Course of proceedings. — The party having the affirmative 
 of the issues has the opening and closing of the case. Where 
 the cause is heard upon the pleadings and proofs, the com- 
 plainant opens. The order of proceeding is generally as 
 follows: The complainant's bill is first read, or the sub- 
 stance of it briefiy stated; the defendant's answer is then 
 read or stated in like manner; after which the case and the 
 matters in issue are, stated, with the points of equity arising 
 therefrom; and then the testimony and such parts of the de- 
 fendant's answer as are considered essentia], are read by the 
 complainant's solicitor. After the complainant's evidence has 
 been read, the defendant's evidence is introduced; to which 
 the complainant may offer rebutting testimony. The argu- 
 'ment is then opened by the solicitor for the complainant. 
 The defendant's solicitor is then heard in answer; to which 
 the complainant's solicitor may reply, and concludes the ar^u- 
 ment. 
 
 On the hearing on bill, cross-bill, answers and depositions, 
 both cases being heard together, and both parties having 
 material allegations to sustain, tlie complainant in the original 
 bill is entitled to the opening and the close, [h) 
 
 In a bill filed to enjoin an action of ejectment and for spe- 
 cific performance, the complainant's counsel is entitled to the 
 opening and closing, (c) 
 
 When 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 defendant to answer; and there is no reply 
 
 (a) Chancery Rule 69. 
 
 (6) Murphy v. ^tultz, Saxton, 560. 
 
 (c) Duman T. Pepper, 43 Geo. 361. 
 
204 HEARINa. 
 
 Hearing Case out of its Order — Original and Cross-bill Heard Together. 
 
 between the defendants, (a) unless specially directed by the 
 court, (b) 
 
 Upon a plea or demurrer, the defendant holds the affirm- 
 ative, and opens the argument; and upon appeal, the opening 
 argument of the appellant's counsel is first heard. Wliere 
 the cause is heard upon exceptions to an answer, the com- 
 plainant begins. If upon exceptions to a master's report, the 
 party excepting opens the argument. But where both parties 
 except, the complainant's counsel is first heard npon his ex- 
 ceptions, and then the defendant's counsel answers him, and 
 opens the argument upon his own exceptions, (c) 
 
 Hearing case out of its order. — Although it is a general 
 rule tliat causes come on to be heard, according as they stand 
 upon tlie docket, yet they are sometimes heard out of their 
 ordinary course, on sufficient cause being made to appear, (d) 
 
 Original and cross-lill heard together. — Tlie original bill 
 and cross-bill should be heard together, (e) The court will also 
 order depositions in a cross-suit to be read, on the account, 
 directed in the original suit, though the cross-bill is dis- 
 missed, {f) And a cross-bill for discovery, taken jyro covfesso, 
 will be ordered, on motion, to be read on the hearing of the 
 original cause, {g) 
 
 In cross-suits, and also in other suits, wliere there are two 
 causes between the same parties, involving the same points in 
 dispute, and where it is material that both causes should be 
 heard together, if both are set down for hearing, but stand at 
 a distance from each other, the court will permit the cause 
 which stands last to be advanced, or that which stands first to 
 be adjourned, so that both may come on at the same time; and 
 
 (a) Walton v. Van Mater, Halst. Dig, 175. 
 
 (6) 1 Barb. Ch. Pr. 317. 
 
 (c) 1 Barb. Ch. Pr. 317, 318. 
 
 {d) Gregg v. Brower, 57 111. 525; Clark v. Marfield, 77 111. 258. 
 
 (e) Bemichamp v. Putnam, 84 111. 378. 
 
 (/) Lubiere v. Genou, 2'Ves. 579. 
 
 \g) Corey v. Gertaken, 2 Mad. 4^; 1 Barb. Ch. Pr. 820. 
 
HEARINa. 20.J 
 
 Effect of Former Orders on the Hearing. 
 
 likewise, if it is necessary, the depositions taken in one cause 
 to be read in the other — an order for that purpose having been 
 previously obtained, {a) 
 
 It is in the discretion of the court to postpone the hearing 
 on the original bill, until the cross-bill is ready for hearing, 
 that both may be heard together ; but this will not be done 
 where there is unueceisary or affected delay in preparing tlie 
 cross-bill. (5) 
 
 Effect of former orders on the hearing. — On a final hear- 
 ing all previously rendered decretal orders are before the 
 court, and may be altered, modified, or vacated, as justice may 
 require, (c) 
 
 (a) Nevil v. Johnson, 2 Vern. 447; Wilford v. Beaseley, 3 Atk. 501, 503; 
 Prac. Reg. 172; 1 Barb. Ch. Pr. 320. 
 (S) McConnics v. Moselet/, 4 Call, 860; Beauchampv. Putnam, 34 111. 378. 
 (c) Gibffon v. Beese, 50 111. 383. 
 
206 DECREES, AND DECRETAL ORDERS. 
 
 Nature, Uses and Kinds ol Decrees. 
 
 CHAPTER XIY. 
 
 DECREES AND DECRETAL OEDEKS. 
 
 Section 1. Nattjub, Uses and KiisDi of Decrees. 
 2. Forms or Decrees. 
 
 SECTION I. 
 
 NATURE, USES AND KINDS OF DECREES. 
 
 A decree is the judgment or sentence of a court of equity, 
 pronounced after the hearing or submission of the cause. It 
 may be interlocutory or final. The former is properly an or- 
 der or decree pronounced for the purpose of ascertaining mat- 
 ters of fact or law, preparatory to a final decree. It very sel- 
 dom happens that the first decree can be final or conclude tlie 
 cause. The latter settles the matter in dispute, and the final 
 decree has the same eifect as a judgment at law. (a) 
 
 It is a settled rule, that a decree must conform to the alle- 
 gations in the pleadings as well as to the proof in the cause; (5) 
 
 (a) 2 Mad. Ch. 462; Barton's Suit ia Bq. 147. 
 
 (6) Thayer v. Lane, Walk. Ch. 200; Jerome v. Hopk'ns, 2 Mich. 96; 
 Cicotte V. Gagnier, 2 Mich. 381 ; Warner v. Wkittaker, 6 Mich. 133; Bloomer 
 V. Henderson, 8 Mich. 395; Bomier v. Caldwell, 8 Mich. 463; Barrows v. 
 Baughman, 9 Mich. 213; Wurcherrer v. Hewitt, 10 Mich. 4S3; Peckham 
 V. Buffam, 11 Mich. 529; Perkins v. Perkins, 12 Mich. 456; Moran v. Pal- 
 mer, 13 Mich. 367; Converse v. Blumrich, 14 Mich. .109; Hubbard v. Win- 
 sor, 15 Mich. 146; Payne v. Avery, 21 Mich. .524; Fosdick v. Van Husan, 
 21 Mich. 567; Lebaronv. Sheph'rd, 21 Mich. 263; Curtis v. Goodenow, '24 
 Mich. 18; Harwood v. Underwood, 28 Mich. 427; Dart v. Barbour, "/I 
 Mith. 267; Jones v. Wells, 31 Mich. 170; Ford v. Loomis, 33 Mich. 121; 
 Biidd y. Eudd, Ibid, 101; Smith v. Sumsey, 33 Mich. 183; Livingston v. 
 Hayes, 43 Mich. 129; Woodworth v. Htmtoon, 40 111. 132; Means v. Means, 
 42 111. 50; Hall v. Towne, 45 111. 493; Crocket v. Lee, 7 Wheat. 522; Ring- 
 gold V. Ringgold, 1 Har. & G. 11; Pigg v. Corder, 12 Leigh, 69; Corneal 
 V. Banks, 10 Wheat. 181; Sivart v. M. dt: T. Bank, 18 Johns. 496; Cloud 
 
DECREES, AND DECRETAL ORDERS. 207 
 
 Nature of — Interlocutory Decree. 
 
 and a complainant can not obtain a decree for more than he 
 has asked in Vis bill, {a) 
 
 Interlocutory decree. — Judgment upon a demurrer in favor 
 of the complainant, or against a plea, is not final but interlocu- 
 tory; (5) for a decree is not final unless all the material facts 
 are ascertained at the time; and a decree referring the cause 
 to a master to ascertain such facts is interlocutory only; (c) in 
 like manner, where the further action of the court is neces- 
 sary to give completely the relief contemplated by the court, 
 there tlie decree upon which the question arises, is to be re- 
 garded not as final but interlocutory, {d) 
 
 A decree deciding the rights of the parties as to the matter 
 in controversy, and awarding costs, is still but interlocutory, 
 if it be referred to commissioners to execute it, and the court 
 has afterward to determine matters on the report; (e) and a 
 decree ordering an act to be done before tlie decree can be 
 efi'ectual, is interlocutory, {f) 
 
 Where money is directed to be paid into court, or property' 
 to be delivered to a receiver, or to a new trustee, or where 
 anything is to be done, which may be tlie subject of exception 
 or appeal, the decree is not final, but interlocutory only; {g) 
 
 V. Whi'man, 2 Har. 401; Smith v. 'Smith, 1 Ired. Ch. 88; Bozinany. 
 Droughan, 3 Stew. 243; Langdon v. Roane, 6 Ala. 518; Morgan v. Crabb, 
 3 Porter, 470; Mauri/ y. Mason, 8 Porter, 211; Dickinson v. Morgan, 8 
 Dana, 130; Bougher v. Miller, Wright, 328; Handly v. Young, 4 .Bibb. 
 376; Del. e^jEf. Canal Co. v. Penn. Canal Co. 21 Penn. 131. 
 • (a) Creasey v. St. George Society of Detroit, 34 Mich. 51; Simons y. 
 Guthrie, '9 Cranch, 19; Hatly. Towne, 45 111. 493; III. W. Ex. R. it. Co. 
 V. Gay, 7 Bradw. 404. 
 
 (6) Bennett v. Nichols, 12 Mich. 22; Warner v. TnmUnson, 1 Root, 201; 
 Gray v. Hays, 7 Humph. 588; Knapp v. Marshall, 26 111. 63. 
 
 (c) Enos V. Sutherland, 9 Mich. 14S; Caswell v. Comstocic, 6 Mich. 391; 
 Jaqu?s V. M. E. Church, 17 Johns. 548. 
 
 {d) Cocke V. Gilpin, 1 Rob. Va. 20. 
 
 (e) Mackey v Bell, 2 Munf. 523; see, also. Price v. Nesbif, 1 Hill, Ch. 445; 
 Perkins v. Perkins, 10 Mich. 425. 
 
 (/ ) Hays V. Mays, 1 J. J. Marsh. 497. 
 
 ig) Bellamy v. Belhmy, 4 Florida, 242; Colgate y. Mich. L. S. R. S. Co. 
 28 Mich. 288. 
 
208 DECREES, AND DECRETAL ORDERS. 
 
 Nature of — Final Decree. 
 
 and an order directing an issue at law, is interlocutory merely, 
 and may be set aside at a subsequent term, (a), 
 
 A decree, in which the party in whose favor it is made, 
 can not obtain the benefit thereof, without further hearing be- 
 fore the court, is interlocutory, (b) 
 
 Ordering bonds in dispute to be brought into court to await 
 its further order, and that the several claimants interplead, is 
 an interlocutory, not a final decree, (c) 
 
 An order dissolving an injunction is not a final decree; (d) 
 neither is an order that allows temporary alimony, (e) An 
 order granting leave to file a bill of review is not a final order, 
 but an order denying leave is. (_/) 
 
 Fvnal decree. — A decree which finally disposes of the subject 
 of litigation, so far as the court is concerned, reserving no fur- 
 ther questions or directions for the future judgirient of tlie 
 court, is a final decree, though some further proceedings are 
 to be had before a master, exceptions to whose report niny 
 bring the matter again before the conrt, {g) such as the ap- 
 pointment of a commissioner to sell a part of the subject of 
 controversy, and account for, and pay the proceeds to tlie 
 parties, with liberty to them to apply to the conrt to add 
 other, or substitute new commissioners, or for a partition of 
 the subject directed to be sold in kind; (A) or a reference to a 
 
 (a) Dabhs v. Dahbs, 27 Ala. 646. 
 
 (6) Johnson v. Everett, 9 Paige, Ch. R. 636. 
 
 (c) Thomas v. County of Morgan, 39 111. 497. 
 
 {d) Boinay y. Coats, 17 Mich. 411; Spencer v. Stearns, 28 Mich. 463; 
 Wing V. Warner, 2 Doug. Mich. 288. 
 
 (e) Cooper v. Mayhew, 40 Mich. 528; Hunter v. Hunter, 100 111. 519. 
 
 (/) Maxfleld v. Freeman, 39 Mich. 64; Johnsons. Shepherd, 35 Mich. 
 116; Scrivenv. Hursh, 39 Mich. 98; See, also, Reed v. Baker, 42 Mich. 272. 
 
 (g) Mills V. Hoag, 7 Paige, Ch. R. 18; Vanmeter v. Vanmeter, 3 Gra t. 
 Va. 148; Dickenson V. Codwise, 11 Paige, Ch. R. 189; see Bates y. Delavan, 5 
 Paige, Ch. R. 299; Tennent v. Patton, 6 Leigh, 166; WetherfordY. James, 
 2 Ala. 170; Cook y. Bay, 4 How. Miss. 485; Talbot v. Todd, 7 J. J. Mar,sh. 
 456; Graham v. Elmore, Barring. Ch. 265; Damouth v. Klock, 28 Mich. 
 163; Leiois v. Campau, 14 Mich. 458. 
 
 (h) Harvey v. Branson, 1 Leigh, 108; Larue v. Larue, 2 Little, 261; 
 Field V. .Rosa, 1 Monroe, 137. 
 
DECREES, AND DECRETAL ORDERS. 209 
 
 Nature of— Final Decree. 
 
 master to ascertain the amount of the debt, (a) A decree of 
 foreclosure and sale of the premises, in a bill to foreclose a 
 mortgage, is a final decree. And a sale under the decree, after 
 the death of a defendant, without a revival of the suit, is not 
 an error for which the decree will be reversed on a bill of 
 review. ( h) 
 
 A decree that the defendants shonld assign a certificate of 
 lands to the complainant, provided he should, before a given 
 day, and after the tender of the assignment, pay a certain 
 sum of money to them, is a final decree, (c) 
 
 An order striking a bill from the files, is a final order; (d) 
 so is an order fining a party for contempt; (e) or an order 
 refusing to set aside a decree for irregularity, (f) 
 
 Whether an adjudication in a chancery suit is merely an 
 interlocutory order or a decree, is better tested by its effect 
 upon the rights and interests of the parties than by the stage 
 of the cause upon which it is made; and whenever an order 
 of a court of chancery directs a legal right, it is in its nature 
 final. (^) _ 
 
 Where a claim in the original bill becomes unimportant 
 before decree, and the decree does not pass upon it, but dis- 
 poses of all other matters in the suit, the decree is final; (A) 
 and a decree appointing a trustee to sue under a deed of trust, 
 is final as to this matter, and binding alike on strangers and 
 on parties to the decree. (*) 
 
 If a suit is dismissed by the court on a final hearing, it is a 
 
 (o) Damouth v. Klock, 28 Mich. 163; Johnson v. Everett f 9 Paige Ch 
 636. 
 
 (6) Whiting v. Bank of U. S. 13 Pet. 6; see Travis v. Waters, 1 Johns. 
 Ch. 85; Jonit r. Gaither, 6 Monr. 251; see Benedict v. Thompson, 2 Doug 
 Mich. 299. 
 
 (c) Turner v. Crebill, 1 Ham. 368. 
 
 (d) RuffY. Starke, 3 Gratt. Va. 134. 
 (c) Griffin v. Doe. 12 Ala. 783. 
 
 if) Swift Y. Allen, 55 III. 303; Knapp v. Marshall, 26 111. 63. 
 {g) Webster v. Hitchcock, 11 Mich. 56. 
 (h) Romyn v. Caplis, 17 Mich. 449. 
 (i) Mich. Ins. Co. v. Whittemore, 12 Mich. 311. 
 14 
 
210 DECREES, AND DECRETAL ORDERS. 
 
 Forms of Decrees;— Constituent Parts — Caption and Title, etc. 
 
 bar to another suit; but not if the ground of dismissal is tliat 
 a court of law is the proper forum, (a) 
 
 SECTION II. 
 
 FOKMS OF DECREES. 
 
 Constituent parts. — Decrees in general consist of three 
 parts: _y?7"s^, the caption and title; second, the recitals; and 
 third, the ordering part, to which may sometimes be added 
 XhQ fourth, the declaratory part, which, when made use of, 
 generally precedes the ordering part, (b) 
 
 The caption and title. — The decree commences with the 
 name of the court, and the place where it is held, the date at 
 which is is pronounced, and the title of the cause; the form 
 of the caption of decrees and orders in Michigan, is fixed by 
 cliancery rule four. 
 
 Wo. 105. Caption of decree or order in circuit court. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 Complainant, 
 
 vs. 
 
 cr>, I 
 
 Defendant. J 
 
 At a session of said court held at the court house in the 
 
 of , in said county, on the day of , 
 
 A. D. 18—. 
 
 Present, Hon. , Circuit Judge. 
 
 ]^o. 106. Caption of order hy commissioner. 
 
 State of Michigan. 
 
 Judicial Circuit. In Chancery. 
 
 AB. 
 
 Complainant, 
 
 vs. ' Suit pending in the circuit court for the 
 C D, countj' of , in chancery, at , 
 
 Defendant. J on the , day of , A. D. 18 — . 
 
 (o) Barry v. Briggs, 22 Mich. 201. 
 
 (6) Barton's Suit in Eq. 150; 1 Barb. Ch. Pr. 337; 2 Dan. Ch. Pr. 668. 
 
DECREES, AND DECRETAL ORDERS. 211 
 
 T'onns of Orders— Recitals— Recital of a Decree or Order. 
 
 The recitals. — The practice in England at one time, was to 
 recite at length the pleadings and evidence in the cause; but 
 this practice, in consequence of its expense and inconvenience, 
 has been abolished, and the decree now merely recites the sub- 
 stance of the pleadings, and the facts on which the court 
 founds its judgment. In this country, the decree usually 
 contains a mere reference to the antecedent pleadings, with- 
 out embodying them, or any special facts upon which it is 
 rendered, {a) In Illinois, however, the evidence is frequently 
 preserved in the decree. (5) But it is not necessary, that the 
 evidence of the facts should be preserved in the decree, al-^ 
 though not "otherwise preserved; it is sufficiem if the facts 
 established by the evidence are recited in the decree, (c) 
 
 Where a decree in chancery recites that the case wq,g heard 
 upon proofs, and then iinds the facts charged in the bill to be 
 true, it will be inferred the facts were found upon the testimo- 
 ny. Such a decree will be sustained, though it does not pur- 
 port to set out the testimony, and it is not otherwise preserved 
 in the record. (cZ) The facts when found in a decree must cor- 
 respond with the allegations of the parties in the pleadings.(e) 
 
 No. 107. Recital of a decree or order. 
 
 This cause having come on to be heard upon the bill of 
 complaint herein, the answer thereto, the replication of the 
 complainant to such answer, and the proof's taken in said cause, 
 and having been argued by counsel for the respective parties, 
 and the court having duly considered the same. It is ordered, etc. 
 
 The 86th Rule for practice in the United States courts of 
 equity, provides that, " in drawing up decrees and orders, 
 
 [a) Barton's Suit in Eq. 1£0; see Quarrier v. Carter, 4 Hen. & Munf. 
 242. 
 
 (6) CooUg V. Scarlett, 38 111. 816; Walker \. Carey, 53111. 470; Marvin 
 V. Collins, 98 111. 510; Gage v. Basse, 7 Bradw. 433; Parkhurst v. Race, 
 100 111. 558. 
 
 (c) A lien V. LeMoi/ne, 102 111. 25. 
 
 {d)Mauck v. Mauck, 54 111. 281; Jones v. Neehj, 72 III. 449; Wright v. 
 Troufman, 81 III. 374: Rhoadesv. Rhoades, 88 HI. 139; Bmkert v. if^abash 
 Ry. Co. 98 111. 205. 
 
 (e) jParkhur^t v. Race, 100 111. 558. 
 
212 DECREES, AND DECRETAL ORDERS. 
 
 Forms of Decrees — Ordering Part — Preparatory Part — Decree by Consent. 
 
 neither the bill, nor answer, nor other pleadings, nor any part 
 thereof, nor the report of any master, nor any other prior pro- 
 ceedings, shall be recited or stated in the decree or order; but 
 the decree and order shall begin, in substance, as follows: 
 
 " This cause came on to be heard (or to be further heard, as 
 the case may be), and was argued by counsel, and thereupon, 
 upon consideration thereof, it was ordered, adjudged and de- 
 creed, as follows, viz, : {Here vnsert the decree or O'rder.)" 
 
 The ordering part. — After the recitals comes the ordering 
 or mandatory part of the decree, containing the specific direc- 
 tions of the court upon the matter before it, which, it is ob- 
 vious, must depend upon the nature of the particular case, 
 which is its subject, (a) 
 
 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 mat- 
 ters to be decided, and generally, also, the costs of tlve suit, 
 till after the event of the issue or reference shall be known, (h) 
 
 Declaratory part. — Where the suit seeks a declaration of 
 the rights of the par.'ies, the ordering part of the decree should 
 be prefaced by such declaration. This is not, however, abso- 
 lutely necessary, and its omission will not invalidate the de- 
 cree, (c) Sometimes the court directs an insertion in the de- 
 cree of the reasons for making the declaration, and of the 
 grounds upon which it proceeds in making it. {d) This, how- 
 ever, is not often done, though the utility of the practice has 
 been frequently recognized, {e) 
 
 Decree iy consent. — Wlien a decree is rendered by consent, 
 it should be so stated in the decree. {/) Sometimes it is stated 
 
 (a) Barton's Suit in Eq. 15. 
 
 (h) 1 Barb. Ch. Pr. 388. 
 
 (c) Jenour v. Jenom; 10 Ves. 568; 1 Barb. Ch. Pr. 339. 
 
 (rf) Garden v. Gorden, 3 Swanst. 478; Maynard v. Mosely, Id. 653; 
 Onions v'. Tyrer, 1 P. Wms. 343. 
 
 (e) Bax V. Whithread, 16 Ves. 24; Gorden v. Gorden, 3 Swanst. 478; 1 
 Barb. Ch. Pr. 339. 
 
 (/) Barton's Suit in Eq. 150, 151; 1 Barb. Ch. Pr. 339; Seaton on Decrees, 
 374. 
 
DECREES, AND DECRETAL ORDERS. 213 
 
 Forms of Decrees — Decree by Consent. 
 
 to be by consent generallj'; sotnetimes by consent of counsel, 
 and sometimes by the consent of the parties, {a) 
 
 A decree or order made by consent can not be set aside by 
 rehearing, writ of error, or an appeal, or a bill of review, (b) 
 witliout showing by the bill of review fraud or mistake, (c) 
 And the consent may be proved aliunde, (d) 
 
 JVuncpro tunc clause.— Decrees will sometimes be entered 
 nuncjpro tunc, (e) 
 
 Wlien they are so entered the following recital and direc- 
 tion may be inserted: " And it appearing to tiie satisfaction 
 of this court that tlie complainant, A B (or the defendant C D), 
 lias departed this life since the argument of this cause, it is 
 further ordered, tliat this decree he entered nunc pro tunc, as 
 
 of the day of , 18 — , the day when this cause was 
 
 argued." (/) 
 
 "When one of tlie defendants dies after the argument of a 
 cause, and before it is decided, it is customary to enter the 
 decree nunc pro tunc, so that it may have relation back as of 
 the day of the final hearing, [g) 
 
 So where the complainant died after the entry of an appeal 
 from tlie decree of a vice chancellor, and after the cause was 
 ready for a hearing upon the appeal, but the fact of his death 
 being unknown to the counsel, the cause was afterward heard 
 and decided by the chancsllor, 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. (A) 
 
 (a) Seaton on Decrees, 374. 
 
 (6) Id.; Bradish v. Gee, Ambl. 229: Harrison v . Rumsetj , 2 Ves. 488; 
 Toder V. Sansam, 7 Bro. P. C. 244; Norcott v. Norcott, 7 Vin. 398; Wind- 
 ham V. Wi dham, Freem. 127. 
 
 (c) Fragler v. Crow, 40 111. 415. 
 
 (d) Armstrong v. Cooper, 11 111. 540. 
 
 (e) Stevens v. Co/'een, 39 III. 148; McCormick v. Wheeler, 36 111.115; 
 McLainv. Van Winkle, 46 111. 407; Frame v. Frame, 16 111. 155; Brig- 
 nardello v. Graij, 1 Wall. U. S. R. 630. 
 
 (/)1 Barb. Oh. Pr. 340. 
 
 (g) CampbeU v. Mesier, 4 Johns. Ch. 334. 
 
 (ti) Vroom y. Ditmas, 5 Paige, Oh. 528. 
 
214 DECREES, AND DECRETAL ORDERS. 
 
 Forma of Decrees — Drawing Decree — Common and Special Orders. 
 
 So where the cestui que trust of the coinplaiiiaiit had died 
 after argument and before the decision of the cause by which 
 the suit was determined, tlie court ordered the decree to be 
 entered mono pro tunc, as of the time of the argument, {a) 
 
 And decrees have been entered nunc pro tunc, after a very 
 long interval has elapsed from the time of pronouncing the 
 decree; and even where the original decree has been lost, the 
 court has permitted it to be entered nunc pro tunc from the 
 office copy, after the lapse of twenty-three years. (J) 
 
 DrawiTig of decree.— The decree should be written out by 
 the solicitor and submitted to the opposite side, and unless it 
 is an order to which a party is entitled of course, it should be 
 signed by the court. 
 
 Com,mo7i and special orders. — Orders to which a party, by 
 the rules and practice of the court, is entitled of course with- 
 out showing special cause, are denominated common orders. 
 Those made on special application to the court or circuit court 
 commissioner, are denominated special orders. All common 
 orders, and orders entered by consent of the parties, such 
 consent being in writing and signed by such parties or their 
 solicitors, and filed, may be entered by the register in the 
 common rule book kept in his office, at the instance of the 
 party or his solicitor, at the peril of the party taking such 
 order; and the day on which the ord^r is made must be noted 
 in the entry thereof. All special orders made by the special 
 direction of the court or circuit court commissioner, are en- 
 tered in the record of the proceedings of the court, (c) 
 
 A rule entered by consent, without fraud or misrepresenta- 
 tion, will not be vacated, [d) 
 
 Of course, a common order need not be signed by the court. 
 
 A decree is inoperative as a decree, until it has received the 
 
 (a) Wood V. Keyes, 6 Paige, Ch. R. 478. 
 
 (6) Lawrence v. Richmond, 1 Jac. & W. 241; Donne v. Lewis, 11 Ves. 
 601; Jesson v. Brewer, 1 Dick. 371; 1 Barb. Ch. Pr. 341, 342. 
 
 (c) Chancery Rule 24. 
 
 (d) Hammond v. Place, Har. Ch. 438. 
 
DECREES, AND DECRETAL ORDERS. 215 
 
 Forms of Decrees — General Form of an Order, etc. 
 
 file-mark of the clerk. Where a decree was prepared by the 
 judge before the expiration of his term of office, but was not 
 filed until after his successor had been elected and qualified, 
 it was held to be a nullity, as a judicial act can only be per- 
 formed by one who was a judge at the time the act was 
 done, {a) 
 
 But by statute in Michigan, upon failure of a judge to sign 
 a decree, it may be signed by his successor. (5) So a court, 
 when the decree is duly signed, but has not been recorded, 
 may order it recorded and enrolled nunc f^'o tunc, (c) 
 
 If two or more motions or applications are decided at the 
 same time or day, unless otherwise ordered by the court, the 
 whole may be entered in one order. And a party entitled to 
 enter two or more orders of course, in a suit, on the same day 
 or at the same time, they shall be entered as one order, (cl) 
 
 No. 108. General form of an order, 
 
 ( Caftion, with title of the cause, as m 105.) 
 
 This cause having come on to be heard upon the motion of 
 the complainant, {or defendant) for, etc. {Here insert the 
 nature of the motion, a/nd let the recital agree with thefact^^, 
 the bill of complaint herein, the answer of the defendant 
 thereto, the replication of the complainant to such answer, and 
 the proofs taken in the cause, and having been argued bv 
 counsel for the respective parties; 
 
 Now, therefore, on consideration thereof, it is ordered, ad- 
 judged and decreed, and the court doth hereby order, adjudge 
 and decree as follows, viz.: * {Here insert the order.) 
 
 No. 109. General form of a decree. 
 
 {Caption, with title of the cause, as m No. 105.) 
 
 This cause having come on to be heard upon the bill of com- 
 plaint herein, the answer of the defendant thereto, the repli- 
 cation of the complainant to such answer, and the proofs, 
 
 (a) Russell v. Sargent, 7 Bradw. 93. 
 
 (b) Comp. L. 1871, § 5687. 
 
 (c) Ibid, § 5688. 
 
 {d) Chancery Rule 110. 
 
 (e) Rule 86 of U. S. Eq. Rules. 
 
216 DECREES, AND DECRETAL ORDERS. 
 
 forms of Decrees — General Form of a Decree or Order. 
 
 oral, documentary and written, taken and filed in said cause, 
 and having been argued by counsel for the respective parties; 
 Now, theretbi'e, on consideration thereof, it is ordered, ad- 
 judged and decreed, and the court doth hereby order, adjudge 
 and decree as follows, viz. : {Here insert the decree?) 
 
 No. 110. General form of a decree or order. 
 
 {Caption, with title of cause, as i/n No. 105.) 
 
 This cause came on to be heard, (or to be fnrther heard, as 
 the case may he,) at this term of the said court, and was 
 argued by counsel; and thereupon, upon consideration thereof, 
 it was ordered, adjudged and decreed, as follows, viz.: {Here 
 insert the decree or order.) 
 
SUPPLEMENTAL BILL. 217 
 
 Nature of, and when Proper. 
 
 CHAPTER XT. 
 
 SUPPLEMENTAL BILL. 
 
 Section 1. 
 
 Nature of, and when proper, 
 
 2. 
 
 When to be piled. 
 
 8. 
 
 Parties to. 
 
 4. 
 
 Form of. 
 
 5. 
 
 Petition for Leave to Pile. 
 
 6. 
 
 Process. 
 
 7. 
 
 Defenses to. 
 
 8. 
 
 Replication and Evidence. 
 
 9. 
 
 Hearing. 
 
 
 SECTION L 
 
 NATURE OF, AND WHEN PEOPEE. 
 
 A supplemental bill is used for the purpose of supplying 
 some irregularity or defect discovered in the frame of the 
 original bill, or in some proceedings upon it; or some defect 
 in the suit arising from events happening after an issue had 
 been reached in the proceedings, and by which persons, not 
 parties to the suit, have acquired an interest in it. (a) If, 
 however, the original bill shows no ground for relief, the de- 
 fect can not be cured by a supplemental bill, setting up rnat- 
 ters that have arisen since the commencement of the suit. (5) 
 
 Matters which occurred prior. to the filing of the original 
 bill, and not stated therein, should be brought into the suit by 
 amendment, but matters arising subsequent to the filing of 
 
 (a) Barton's Suit in Eq. 128; Story's Eq. PL §332; Mont. Eq. PI. 316; 
 Hinde's Pr. 42. 45. 
 
 (6) FaJis V. Roberts, 54 111. 192; Candler v. Pettit, 1 Paige, Ch. R. 168; 
 Brown y. HigtJon, 1 Atk. 291; Edgar v. Clevenger, 2 Gr.en, Ch. R. 268- 
 Story's Eq. PI. § 339. 
 
218 SUPPLEMENTAL BILL. 
 
 Nature of, and When Proper. 
 
 the original bill, should be introduced by a supplemental bil I. (a) 
 And such bill may not only be for the purpose of putting in 
 issue new matter, which may vary the relief prayed in the 
 original bill, but also for the purpose of putting in issue mat- 
 ter, which may prove the complainant's right to relief, orig- 
 inally prayed. (5) 
 
 In order to file a supplemental bill, it must be shown that 
 the matter relied on as supplemental has arisen since the com- 
 mencement of the original suit, or that the facts have first 
 become known to the complainant in such a way that he 
 could make use of them since tlie cause passed the stage in 
 which he might have leave to amend, or that he had been 
 prevented by inadvertence, mistake, or some other cause satis- 
 factorily shown, from availing himself of -the matter proposed 
 to be shown at an earlier stage of the ease; and the supple- 
 mental bill must be confined to such matter, and must be veri- 
 fied by afiidavit, or other satisfactory proof [r) 
 
 The court will also permit other matters to be introduced 
 into the supplemental bill which might have been incorporated 
 in the original, by way of amendment; and this is especially 
 proper where the matter which occurred prior is necessary to 
 the proper elucidation of that which occurred subsequently to 
 the filing of the original bill; (d) and when properly before 
 the court it is an addition to the original bill, and becomes a 
 part of it, so that the whole is to be taken as one supplement- 
 
 (a) Graves Y. N les, Har. Ch. 332; Hammond v. Place, Har. Ch. 438: 
 Griggs v. Det. <& M. E. B. Co. 10 Mich. 117; Cooper v. Bigly, 13 Mich. 
 463; Hess v. Final, 32 Mich. 515; Burke v. Smith, 15 111. 15S; Stafford v. 
 Soiflc'tt, 1 Paige, Ch. R. 200; Fulton Bank v. N. Y. <«■ S. Canal Co., 4 
 Paige, Ch. R. 127; Walker v. Gilbert, 7 S. & M. 456; Wray v. Hutchinson, 
 
 2 Mylne & Keene, 235; CromptonY. Wombwell, i Sim. 628. 
 
 (6) Story's Eq. PI. § 332; Crompton v. Wombwell, 4 Sim. 628. 
 {c)Pedrick v. White, 1 Met. 76; Bowie y. Minter, 2 Ala. 406; Story's 
 Bq. PI. § 233; Mitf. Eq. PI. 55, 61; Hiude's Pr. 42, 43; Veazie V. Williams, 
 
 3 Story, R. 54; see, also, Hashrook v. Shuster, 4 Barb. 285; Collins v. Lav- 
 enberg, 19 Ala. 682; Mix v. Be'ich,A& III. 311; Choteau v. Rice, 1 Minn. 
 106: Copen v. Flesher, 1 Bond, 440. 
 
 (d) Graves v. Niles, HarrJng. Ch. 332. 
 
SUPPLEMENTAL BILL. 219 
 
 When to be Filed. 
 
 al bill, (a) constitntlng but one cause, requiring but one re- 
 plication, (b) 
 
 A supplemental bill may also be proper in order to bring 
 before the court new parties. In such case the original de- 
 fendants need not be made parties, unless they have an interest 
 in the supplemental matter, or may be, affected by the inter- 
 est of such new parties, (c) 
 
 A stranger to a suit in eqnity claiming an interest therein, 
 can not interfere with the proceedings without filing a supple- 
 mental bill to make himself a party, (d) And when a sup- 
 plemental bill is filed, bringing new parties into court, it is, 
 as to them, a new suit, and is to be considered as being com- 
 menced when the supplemental bill is filed, {e) 
 
 The tiling of a supplemental bill, alter a, pro confesso order, 
 vacates the order, and the defendant may put in an answer. (_/") 
 
 SECTION II. 
 
 WHEN TO BE FILED. 
 
 A supplemental bill for the purpose of adding new matter, 
 or for the purpose of bringing new parties before the court, 
 may sometimes be filed after as well as before the decree, {g) 
 Thus, for the purpose of giving directions which were not 
 prayed for in the original bill, but which the result of the 
 
 («) Gillelt v.Hall, 13 Conn. 426; Poiier y. Barclay, 15 Ala. 439; Cun- 
 ningham v. Rogers, 14 Ala. 147; Harrhigion y . Slaiie, 22 Barb. N. Y. 161; 
 Catton V. Carlisele, 5 Mad. 427; Greenwood v. Atkinson, 4 Sim. 628. 
 
 (b) Id. lb. ; Chateau v. Bice, 1 Minn. 106. 
 
 (c) Bignall v. Atkins, 6 Mad. 369; Enswurth v. Lambert, 4 Johns. Ch. 
 R. 605: Jones Y. Jones, 3 Atk. 217; HoM.iworth y. Holdsworth, 2 Dick. 
 799; North Am. Coal Co. v. Dyett, 2 Bdw. Ch. 115. 
 
 Id) Watt V. Crawford, 11 Paige, Ch. R. 470; Livingston v. Freeland, 3 
 Barb. Ch. R. 510. 
 
 (c) Morgan v. Morgan, 10 Geo. 297. 
 
 (/) Gibson v. Reus, 50 111. 383. 
 
 (g) 2 Barb. Ch. Pr. 62; Woodward v. Woodward. 1 Dick. 33; Boeve v. 
 Skipwith, 1 Eq, Ca. Ab. 80; 2 Ch. R. 142; 3 Dan. Ch. Pr. 156. 
 
220 SUPPLEMENTAL BILL. 
 
 Parties to Supplemental Bill. 
 
 proceedings under the decree has rendered proper, {a) But 
 it can not be filed after a decree dismissing the bill. (&) 
 
 SECTION III. 
 
 PAETIES TO SUPPLEMENTAL BILL. 
 
 When the bill is fi.led for any new matters arising since the 
 'filing of the original bill, the defendants to the original bill 
 ought to be made parties; ( c) but if it is merel v to bring be- 
 fore the court formal parties, the defendants in the original 
 bill need not be made parties, {d) 
 
 Where, however, a person has acquired the interest of a 
 ]iarty to a suit, and thinks proper to file a supplemental bill 
 himself, he must make all the parties to the original bill, 
 whether complainants or defendants, parties to his supple- 
 mental bill, {e) So, also, where one of the several complain- 
 ants assigns his interest to a stranger, and the remaining 
 complainants file a supplemental bill against the assignee, 
 they must also make the defendants to the original bill par- 
 ties to the supplemental bill. {/) 
 
 To entitle a complainant to tile a supplemental bill, and 
 thereby to obtain the benefit of the former proceedings, it 
 must be in i-espect of the same title in the same person, as 
 stated in the original bill. He can not file such a bill to 
 have the benefit of the former proceedings, if he claims by a 
 difiierent title, {g) 
 
 A new party, representing the interest of a former party, 
 who comes before the court by a supplemental bill, whether 
 filed by himself or by the complainant, stands exactly in the 
 
 (a) Dormer v. Fortescue, 3 Atk. 124. 
 (6) Bitrke v. Smith. 15 111. 158. 
 (c) Jones Y. Jones, 3 Atk. 217. 
 
 ((Z) Id. Colwell V. Boi/ei; 8 Gill & J. 133; Ensworthv. Lamhert, 4 Johns. 
 Ch. R. 605; McGowanv. Yerks, 6 .Johns. Ch. R. 450. 
 ,(e) 8 Dan. 180; 2 Barb. Ch. Pr. 69. 
 ^/) Fearij v. Stephenson, 1 Beav. 42. 
 
 [g] Welf. Eq. PI. 189; 2 Barb. Ch. Pr. 69; TonUn v. Lethhridge, Coop. 
 Eq. R. 33. 
 
SUPPLEMENTAL BILL. 221 
 
 Form of Bill. 
 
 same position as the former party, is bound by liis acts, and, 
 may be subject to all the costs of the proceeding from the 
 beginning of the suit, [a) Tiierefore, it has been held that a 
 purchaser of the interest of a party pendente lite, on filing 
 his supplemental bill, comes into court, whether for gain or 
 loss, and shall be liable to the cost of the proceeding, from 
 the beginning to the end of the suit. (5) So, also, the assign- 
 ees of a bankrupt, who are brought before the court by sup- 
 plemental bill, may be liable to the costs of the whole suit, 
 if they improperly resist the complainant's demand, (c) 
 
 SECTION IV. 
 
 FOEM OF BILL. 
 
 A supplemental bill must state the original bill, and the 
 proceedings thereon; and if it is occasioned by an event sub- 
 sequent to the original bill, it must state that event, and the 
 consequent alteration, with respect to the parties; and, in gen- 
 eral, the supplemental bill must pray that all the defendants 
 may appear and answer to the charges it contains, {d) 
 
 The propriety of introducing a restatement of the case from 
 the original bill, into the supplemental bill, must depend upon 
 the question, whether the object of the supplemental bill is to 
 state the mere fact of a bill having been filed, or to put in 
 issue any of the circumstances and facts stated and charged in 
 it. (e) If the former is the object, the mere statement that the 
 complainant had filed a bill which prayed such and such re- 
 lief, will be sufficient; or if the pleader should not think this 
 sufiicient, he may introduce a short recital. (_/) If the latter is 
 the object in view, the facts intended to be stated may be set 
 out in the supplemental bill, either by way of original state- 
 la) 2 Barb. Ch. Pr. 69; Mitf. Eq. PI. 68. 
 
 (h) Anon. 1 Atk. 89. 
 
 (c) Whitcomb v. Minchin, 5 Mad. 91; 2 Barb. Ch. Pr. 69. 
 
 {d) 2 Barb. Ch. Pr. 70; M tf . Eq. PI. 75; Story's Eq. PI. § 343. 
 («)Story'3 Eq. PL § 343; 2 Barb. Ch. Pr. 71. 
 
 (/) 3 Dan. 177; Gilb. For. Rom. 210; 2 Barb. Ch. Pr 71. 
 
222 SUPPLEMENTAL BILL. 
 
 Form of Bill — Rule^Prayer For— Specific Performance. 
 
 merit, or as a restatement of the facts in tlie original bill, with 
 an averment of their truth, (a) 
 
 Rule forty -four, is to the effect that it is not necessary in 
 Michigan to set forth in a supplemental bill, any of the state- 
 ments in the original suit, unless the special circumstances of 
 the case require it. 
 
 Prayer of. — A supplemental bill generally calls upon the 
 defendaut to answer the supplemental matter only. If, how- 
 ever, it is occasioned by the transmission of the interest of a 
 defendant, who has not answered the original bill, and it is 
 necessary to have a discovery from the new defendant, of the 
 matters in the original bill, it may pray that the defendant 
 may answer the original bill. (J) And in such case the de- 
 fendant will be bound to answer the original, as well as the 
 supplemental bill, (c) 
 
 No. 111. Supplemental hill for specific pe7formanoe,statif>g 
 tlwbt defendant has hrouglut ejectment, praying for in- 
 jwnction, etc. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Your orator, A B, of, etc., respectfully represents unto the 
 court, that on, etc., your orator exhibited his bill of complaint 
 in this honorable court against C D, thereby praying that the 
 said C D might be decreed specifically to perform his agree- 
 ment with your orator, touching the sale of the real estate in 
 the said bill mentioned, and to execute to your orator a deed 
 therefor, your orator being ready and willing to do everything 
 on his part required to be performed in pursuance of said 
 agreement. 
 
 Your orator further represents that the said C D appeared 
 and put in his answer to the said bill, and your orator filed a 
 replication thereto; as by the tiles of the said cause will more 
 
 {a) 2 Barb. Ch. Pr. 71; Vigers v. Lord AudUtj, 9 Sim. 72. 
 
 (6) Vigers v. Lord Audley, 9 Sim. 72. 
 
 (c) 3 Dan. 72j 2 Barb. Ch. Pr. 72j see Asbee v. Shipley, Mad. & Geld. 296. 
 
. SUPPLEMENTAL BILL. 223 
 
 Bill against Bankrupt Defendant. 
 
 fully appear; which said cause is still pending and undeter- 
 mined in this court. 
 
 Your orator by way of supplement, further represents, that 
 since the filing of said bill, the said D has commenced an 
 action of ejectment upon the common law side of this court, 
 for the purpose of recovering the possession of the said prem- 
 ises; which action of ejectment is now pending and undeter- 
 mined; that yonr orator has requested the said D to desist 
 from proceeding with the said action of ejectment, but the 
 said C D refuses so to do, and still continues the prosecution 
 thereof. 
 
 Forasmuch, therefore, as your orator is without remedy in 
 the premises, except in a court of equity; and to the end that 
 the said D, who is made a party defendant to this supple- 
 mental bill, may be required to make full and direct answer 
 to the same, hut not under oath, the answer under oath being 
 hereby warned; that he may be restrained by the injunction 
 of this court, from proceeding in said action of ejectment, and 
 also from commencing any other action or proceeding at law 
 for the purpose of turning your orator out of the possession 
 of the said premises; and that this, your orator's bill of com- 
 plaint, may be deemed and taken as and for a bill of supple- 
 ment to his said original bill; and that your orator may have 
 such other and further relief in the premises as equity may 
 require, and to this honorable court shall seem meet. 
 
 May it please, etc. {Prayer for injunction and process, 
 and add affidavit.) 
 
 N^o. 112. Supplemental hill against the assignee of a hank- 
 rupt defendant. 
 
 State of Michigan. 
 
 The Circait Court for the County of -. In Chancerv. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Your orator, A B, of, etc., respectfully represents unto the 
 court, that on, etc., your orator filed his bill of complaint in 
 this honorable court against C U, of, etc., praying, etc. {Sere 
 insert the substance of the prayer)\ that the said C D, having 
 been served with process, appeared and put in his answer to 
 the said bill; and your orator replied to the said answer; but 
 before any further proceedings were had in the said cause, and 
 on, or about, etc., the said D was, by the district court in 
 
 and for the district of , adjudged a bankrupt; and 
 
 one E F, the defendant hereinafter named, having since been 
 
224 SUPPLEMENTAL BILL. 
 
 PetiticB for Leave to File. 
 
 duly chosen assignee of the estate and effects of the said bank- 
 rupt; and the estate and effects late of the said bankrupt 
 having been conveyed to the said assignee; and, therefore, 
 your orator is advised that he is entitled to the same relief 
 against the said E F, as he would have been entitled to against 
 the said D, if he had not become bankrupt. 
 
 Forasmuch, therefore, as your orator is without remedy in 
 the premises, except in a court of equity; and to the end that 
 the said E F, who is made party defendant to this bill, may 
 be required to make full and direct answer to the same, but 
 not on oath, the answer under oath hei/ng hereby waived; 
 and that your orator may have the full benefits of the said suit 
 and proceedings therein against the said E F, and may have 
 the same relief against him as your orator might or could 
 have had against the said C D, in case he had not become 
 bankrupt; and that your orator may have such other or fur- 
 ther relief in the premises as equity may require,, and to your 
 honor shall seem meet. {Pray ^process, as in No. 118.) 
 
 SECTION V. 
 
 PETITION FOE LEAVE TO FILE. 
 
 A motion, based upon a petition, for leave to file a supple- 
 mental bill, is ordinarily addressed to the discretion of the 
 court. Leave is seldom granted to file a supplemental answer, 
 and never without the utmost caution, and when a just and 
 necessary case is clearly made out. [a) The court will examine 
 the question only so far as to ascertain that it is not intended 
 for vexation or delay; (J) and in ordinary cases, the defendant 
 is not entitled to notice of the application for such order, [c) 
 
 The 57th Kule for practice in the courts of equity of the 
 United States, requires notice to be given to the defendant, of 
 an intended application for leave to file a supplemental bill. 
 
 (a) Qrams v. mies, Har. Ch. 335. 
 
 {b} Turner Y. Berry, 3 Gilm. 541; Tappan v. Evans, 12 N. H. 3S0; 
 Pedrick v. White, 1 Met. 76; Kennedy v. Georgia State Bank, 8 How. 
 XJ. S. 586; Winn v. Albert, 2 Md. Ch. Deois. 42; Eager v. Price, 2 Paige, 
 Ch. R. 333; Walker v. Hallett, 1 Ala. (N. S.) 379; Lawrence v. Bolton, 
 3 Paige, Ch. R. 294. 
 
 («) Eager v. Price, 2 Paige, Ch. R. 333; Lawrence v. Bolton, 3 Paige, 
 Ch. R. 294. 
 
SUPPLEMENTAL BILL. 225 
 
 Petition to File Supplemental Bill — Process, etc, 
 
 No. 113. Petition for leave to file a supplemsntal bill. 
 
 - State of Michigan. 
 
 The Circuit Court for the Countj'^ of . In Chancery. 
 
 AB, ^ 
 
 Complainant, ! 
 vs. 
 CD, 
 
 Defendant. 
 
 To the Circuit Court for the County of . In Chancery 
 
 The petition of AB, the ?ibove named complainant, respect- 
 fully represents, that on, etc., your petitioner tiled his hill in 
 this honorable court, against the defendant C D, for the pur- 
 pose of, etc. {State generally the object of the bill), and pray- 
 ing, etc. {State the substance of the prayer.) 
 
 And your petitioner further represents, that the said 
 C D, being served with the subpoena of this court, 
 appeared to said bill, and put in his answer thereto, to 
 which the petitioner filed a replication; that afterward, 
 and before any further proceedings were had in said 
 cause, etc. {Here state the supplemental matter); where- 
 fore your petitioner is advised, that it is necessary to bring 
 the said E F before this courf, as a party defendant to this suit. 
 
 Tour petitioner therefore prays that leave mav be granted 
 to him to file a supplemental bill against the said E F, for the 
 purpose ot making him a defendant to this suit, with proper 
 and apt words to charge him as sua!i, and with such prayer 
 for relief as may be proper, and for such other, etc. 
 
 Solicitor for complainant. A B. 
 
 {Add affidavit.) 
 
 SECTION VI. 
 
 PROCESS, ETC. 
 
 In Illinois it has been held that upon the filing of a sup- 
 plemental bill, it is not necessary that process should issue 
 against a party already in court, nor that an appearance 
 be entered, before a pro confesso ord«r can be entered. If 
 new parties are made defendants to the bill, process must is- 
 sue as in other cases, (a) This is the general rule. (5) 
 
 {a) Mix V. Beach, 46 111. 311. 
 
 (6) 1 Hoff. Ch. 404; 2 Barb. Ch. Pr. 78. 
 
 15 i 
 
226 SUPPLEMENTAL BILL. 
 
 Defenses to — Demurrer. 
 
 SECTION VII. 
 
 DEFENSES TO. 
 
 The defendant to a supplemental bill may either demur, 
 plead or answer, as in other cases. 
 
 Demurrer. — If the bill is filed without any sufficient 
 grounds for a supplemental bill, tUe defendant may demur, {a) 
 Thus, if it appears upon the face of the bill, that all the mat- 
 ters alleged therein arose previous to the filing of the original 
 bill, and might have been inserted therein by way of amend- 
 ment, the objection may be taken by demurrer; (5) even 
 though the bill alleges that the facts were not known to the 
 complainant until the original cause was at issue, (c) 
 
 Many of the causes of demurrer which apply to original 
 bills, also apply to supplemental bills; but there are some 
 grounds of demurrer which are applicable solely to supple- 
 mental bills. {(V) 
 
 If a supplemental bill is filed upon matters arising subse- 
 quent to the time of filing the original bill, against a person 
 who claims no interest out of the matters in litigation by the 
 former bill, the defendant to the bill thus brought as a supple- 
 mental bill may demur: especially if the bill prays fhat he 
 may answer the matters charged in the original bill, (e) 
 
 A defendant may also' demur if the same complainant files 
 a supplemental bill claiming the same matter as in his orig- 
 inal bill, but upon a title totally distinct. (_/") 
 
 A motion to strike a supplemental bill from the file for ir- 
 
 (a) Lawrence v. Bolton, 'i Paige, Ch. R. 294. 
 (6) Id.; 1 Barb. Ch. Pr. 54; 2 Id. 75. 
 (c) Colclough V. Evans, 4 Sim. 76. 
 (rf) 3Dan. 183; 2 Barb. Ch. Pr. 75. 
 
 (e) Mitf. Eq. PI. 202; Baldwin v. Mackown, 3 Atk. R. 817; Story's Eq. 
 PI. § 343. 
 
 ( f) Tonkins v. Lethhridge, Coop. Eq. R. 83; 2 Barb. Ch. Pr. 75; Story's 
 Eq. PI. § 343. 
 
SUPPLEMENTAL BILL. 227 
 
 Demurrer to — Pleas — Pi-aotioe as to Demurrers and Pleas. 
 
 regularity, on the ground that it does not state supplemental 
 matter, will not lie. The proper course in such case is to de- 
 mur, {a) 
 
 No. 114. Demv/rrer to supplemental hill. 
 
 State of Michigan: 
 To the Circuit Court for the County of . In Chancery. 
 
 AB, 
 
 Complainant, 
 vs. 
 CD, 
 
 Defendant. ^ 
 The demurrer of C D, defendant, to the supplemental bill of 
 
 A B, complainant. 
 
 This defendant, etc. {Proceed as in No. 24, ante,^. 95, to 
 the *, tJieri), that this defendant, as appears by the said supple- 
 mental bill, is not a party to the original bill therein in part 
 stated and set forth ; nor does it appear by the said supple- 
 mental bill, that any new matter has, or is pretended to have 
 arisen, since the original bill was riled, or that there is any 
 reason that this defendant should not, if necessary, be made a 
 party thereto by amendment. 
 
 Wherefore, etc. (Conclude as in No. 24.) 
 
 Plea,. — Besides those grounds of plea which are common to 
 supplemental and original bills, if a supplemental bill is 
 brought on matter which arose before the original bill was 
 filed, and which might have been introduced into the original 
 bill, and this fact does not appear upon the face of the supple- 
 mental bill, so as to enable the defendant to demur, it may 
 be pleaded. (J) So, if a su]5plemental bill is filed without any 
 sufiicient grounds, the defendant may make the objection by 
 plea, (c) 
 
 Practice as to demurrers and pleas.— Demnrreraund pleas 
 to supplemental bills are subject to the same rules, both with 
 
 (o) Bowyer v. Bright, 13 Price, 816. 
 
 (6) 2 Barb. Ch. Pr. 76; Mitf. Eq. PI. 290; Stafford v. Hewlett, 1 Paige, 
 Ch. R. 200. 
 (e) Id.; Lawrence v. Bolton, 3 Paige, Ch. R. 294. 
 
228 SUPPLEMENTAL BILL. 
 
 Plea to a Supplemental Bill — Answer. 
 
 respect to their form and substance, and to the practice aris- 
 ing npon them, as demnrrers and pleas to original bills, (a) 
 
 No. 115. Plea to a supplemental Mil. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 AB, _ 1 
 
 Complainant, | 
 
 vs. Y 
 
 CD, I 
 
 Defendant. J 
 
 The plea of C D, defendant, to the snpplemcn'^al 
 bill of A B, complainant. 
 
 This defendant, etc., {Proceed as in Wo. 36, to the *, then) 
 the several matters and things in the complainant's present 
 bill stated and set foi'th by waj^ of supplement, arose, and were 
 well known to the complainant, before and at the time the com- 
 plainant filed his original bill in this cause; and thatsuch sev- 
 eral matters and things can now be introduced, and ought so 
 to be, if necessarj', by amending the said original bill. 
 
 Wherefore, etc. (ConcVude as in No. 36.) 
 
 ^»si«er.— If the defendant to the supplemental bill neither 
 demurs or pleads to it, he must put in an answer, as in the 
 case of an original bill. If. however, there is any matter in 
 the supplemental bill which is properly the subject of demurrer 
 or plea, he may, in his answer, claim the same benefit of it as 
 he would have been entitled to had he demurred or pleaded. (J) 
 
 Where the defendant is called upon to answer the original 
 bill, at the same time he is called npon to answer the sup- 
 plemental bill, the usual course is to inclnde the answer to 
 both in the same answer, (c) It is not, however, absolutely 
 irregular to separate them, {d) 
 
 The form of an answer to a supplemental bill, and the man- 
 ner of putting it in, are the same as in the case of an an- 
 
 (a) 3 Dan. 184; 2 Barb. Ch. Pr. 76. 
 . (6> 2 Barb. Ch. Pr. 76; 3 Dan. 184. 
 
 (c) Vigers v. Lord Audley, 9 Sim. 408. 
 
 [d) Sayle v. Graham, 5 Sim. 8; 2 Barb. Ch. Pr. 77. 
 
SUPPLEMENTAL BILL. 229 
 
 Replication and Evidence. 
 
 swer to an original bill, and are subject to the same contin- 
 gencies, (a) 
 
 After the answer has been pnt in, and the proceedings on 
 the supplemental hill have arrived at the same point at which 
 the bill stood, they then proceed by the same gradation to- 
 gether. (J) 
 
 SECTION VIII. 
 
 EEPUCATION ANO EVIDENCE. 
 
 Replication. — A replication may be filed by the complain- 
 ant in a supplemental suit, to tlie defendant's answer in the 
 same manner as in an original suit. A separate replication 
 is only necessary where there lias already been a replication 
 in the original suit. Where there has been no replication in 
 the original suit, a general replication will apply to the whole 
 record, and not merely to the original bill, (c) 
 
 Evidence. — ^The new matter introduced by the supplement- 
 al bill, must be proved, unless it is admitted by the answer or 
 otherwise. If not proved, the supplemental bill will be dismiss- 
 ed with costs. For this purpose witnesses may be examined 
 as to the new matter contained in the supplemental suit, id) 
 And where no witnesses have basn examined in the orig- 
 inal cause, they may be examined to prove the matters in is- 
 sue in the original cause, as well as those in is-iue in the sup- 
 plemental suit, [e) 
 
 A supplemental suit is merely a continuation of the original 
 suit, and whatever evidence was properly taken in the original 
 suit, may be made use of in both suits; even though not en- 
 titled in the supplemental suit. {/) 
 
 {ff)3 Dan. Ch. Pr. 185; 1 Barb. ChPr. 140-147; 2 Id. 77. 
 
 (6) Lub?'s Eq. PI. laS; 2 Barb. Ch. Pr. 77. 
 
 (c) 2 Birb. Ch. Pr. 77; CUton v. En.fl of G^rUsle. 5 Mil. 457; GlUeU 
 v.Hall, 13 Conn. R. 426; Ckoteauy. Rice, 1 Minn. 106; Copen v. Flesher, 
 1 Bond, 440. 
 
 (rf) 2 Barb. Ch. Pr. 77-78. 
 
 (c) 2 Barb. Ch. Pr. 78; 3 Dan. 186. 
 
 (/)Id.; Giles Y. Giles, 1 Kien, 685; Mitf. Eq. PI. 74; Garth v. Wood, 2 
 Atk. R. 174. 
 
230 SUPPLEMENTAL BILL. 
 
 Hearing — Entitling Orders — Dismissing Bills, 
 
 SECTION IX. 
 HEARING. 
 
 If tliere has been no decree in the original suit before the 
 filing of the supplemental bill, the original and supplemental 
 suit may come on for hearing together, unless the supplement- 
 al bill is for discovery, and one decree will be made iu both, (a) 
 But if a decree has been rendered before the event of tlie sup- 
 plemental bill was rendered necessary^ there must be a decree 
 on the supplemental bill; for which purpose the supplement- 
 al cause must be brought to a hearing alone; or it may be 
 heard with the original cause for further direction. (5) 
 
 If the supplemental is unnecessarily or improperly filed, it 
 will be dismissed at the hearing, although the complainant 
 obtains a decree on the original bill, (e) 
 
 JintitUng orders. — When the original and supplemental 
 suits proceed as one cause, the orders and papers should be 
 entitled, " A B, complainant, ws. C D, defendant — by original 
 and supplemental bills." (cV) 
 
 Dismissing hills. — If the supplemental bill is unnecessarily 
 or improperly filed, it will be dismissed at the hearing, although 
 the complainant obtains a decree on tlie original bill, {e) So, 
 if no proof is made of the supplemental matter, the bill will be 
 dismissed at the hearing, (y) 
 
 (a)Mitf. Eq. PI. 64, 75; Seaton on Decrees, 385. 
 
 (6) 2 Barb. Ch. Pr. 79; Seaton on Decrees, 386; Mitf. Eq. PI. 64; Adams 
 V. Downing, 2 Mad. 61. 
 
 (c) Eager v. Price, 2 Paige, Ch. R. 339. 
 
 {d) John V. Brown, Seaton on Decrees, 885. 
 
 («) Eager v. Price, 2 Paige, Ch. R. 339. 
 
 (f) Bagnall v. Bagnall, 2 Eq. Abr.173; 6 Bro. P. C. 86; 2 Barb. Ch. Pr. 79. 
 
BILLS IN NATCJRE OP SUPPLEMENTAL. 231 
 
 Original Bills — When Proper. 
 
 CHAPTER XYI. 
 
 BILLS IN THE NATUEE OF SUPPLEMENTAL BILLS. 
 
 Section 1. Original Bills iisr the Natdre of SirppLBMENTAL Bills. 
 2. Bills to Carry Decrees into Execution. 
 
 SECTION I. 
 
 OEIGINAL BILLS IN THE NATURE OF SUPPLEMENTAL BILLS. 
 
 When proper. — A supplemental bill is a mere continuation 
 of the original suit by or against a party having or acquiring 
 the interests of a former party, and it forms, together witli the 
 original bill and the proceedings under it, but one record. 
 Cases, however, sometimes occur in practice in which the inter- 
 est of an original party to a suit is completely determined, and 
 another party becomes interested in tlie subject-matter, by a 
 title not derived from the original party but in such a manner 
 as to render it but just and reasonable that the benefit of the 
 former proceedings should be had by or against such other 
 party, without incurring the expense and risk of commencing 
 an entirely new proceeding. The course of the court, there- 
 fore, enables, that in sucli cases the benefit of the former pro- 
 ceedings may be obtained by means of a bill called an original 
 bill in the nature of a supplemental bill, {a) 
 
 The principal difference between this and a supplemental 
 bill, seems to be that a supplemental bill is applicable to such 
 cases only, where the same parties or the same interests remain 
 before the court; whereas, an original .bill in the nature of a 
 supplemental bill, is properly applicable where new parties, 
 with new interests, arising from events occurring subsequent 
 to the institution of the suit are brought before the court, (h) 
 
 (a) 2 Barb. Ch. Pr. 85; 3 Dan. 230; Hinde, Ch. Pr. 71; Blake, Ch. Pr. 88. 
 (i) Coop. Eq. PI. 75; Story's Eq. PI. § 345. 
 
232 BILLS IN NATURE OP SUPPLEMENTAL. 
 
 Original Bills — When Proper. 
 
 A bill of this nature is properly called an original bill in 
 the nature of a supplemental bill, because it is original as to 
 the new parties and new interests; and it is, in some sort, 
 supplemental also, as being an appendage to the former bill, 
 as to the old parties and old interests, {a) 
 
 A bill, in the nature of a supplemental bill, may also be 
 required, not only where new interests arise, either before ot 
 after a decree, but also where relief of a different kind, or 
 upon a different principle, is required from that in the original 
 decree. (5) 
 
 And an original bill in the nature of a supplemental bill 
 seems to differ from an original bill in the nature of a bill of 
 revivor in tliis, that upon the latter, the benefit of the former 
 proceedings is absolutely obtained; so that the pleadings in 
 the first cause, as also the depositions of witnesses, may be 
 used in the same manner as if they had been filed or taken in 
 the second cause; and if anj' decree has been made in the first 
 cause, tlie same decree will be made in the second cause. But 
 in the case of an original bill in the nature of a supplemental 
 bill, a new defense may be made; the pleadings and deposi- 
 tions can not be used to the same extent as if filed or taken in 
 the same cause; and tlie decree, if any has been obtained, is 
 not otherwise of advantage than as it may be an inducement 
 to tlie court to make a similar decree, (c) 
 
 A bill of this kind is not, in all cases, either proper or 
 necessary, merely because new events have occurred since the 
 original bill. But tlie facts must be material to the original 
 cause, or be such as could not, in that stage of the original 
 cause, be brought into it without such a bill, {dy For where 
 
 («) S ory's Eq. PL § 346; Coop. Eq. PI. 75, 76; Hinde, Ch. Pr. 44; Mole 
 V. SinHh, 1 Jac. & Walk. R. 665; Foster v. Diason, 6 Mad. R. 59; Wellesly 
 V. Wellenltj, 17 Sim. 59; Lee v. Lee, Hare, R. 621; Robertson v. Southgate, 
 5 Hare, R. 223. 
 
 (b) Story's Eq. PI. §351 b; Hodson v. Ball, 11 Sim. 456, 463; Phillips' 
 Ch. R. 177; Taylors. Taylor, 1 Mac. & Gord. R. 405. 
 
 (c) Barton's Suit; in Eq, 132, 133; 2 Barb. Ch. Pr. 85; Mitf. Eq. PI. 64; 
 3 Dan. 165; Adams v. Dowding, 2 Mad. 53. 
 
 {d) Story's Eq. PI. §§ 332, 335-337, 352. 
 
BILLS IN NATURE OF SUPPLEMENTAL. 233 
 
 Original Bill — Form of. 
 
 there is no alteration in the interest of the parties, nor any 
 partienlar circumstance requiring further discovery, but when 
 a fact only has occurred which might be proved under the 
 proceedings in the original bill, as in taking an account before 
 the master under the prayer of the original bill, and the relief 
 is not varied by the supplementary matter; but the complain- 
 ant may have the relief prayed for by such supplementary bill 
 under the original bill, the supplemental bill is improper, (a) 
 
 Form of. — A bill of this nature must state the original bill, 
 the proceedings upon it, the event which has determined the 
 interest of the party by, or against, whom the former bill was 
 exhibited, and the manner in which the property has invested 
 in the person become entitled thereto. It must then show the 
 ground iipon which the court ought to grant the benefit of the 
 former suit, to or against the person so become entitled, and 
 pray for process against the defendant, to thei end that he may 
 answer the premises, and that the complainant may have 
 similar relief against him to that which was prayed in the 
 original bill. (5) Tliis bill, although partaking of the nature 
 of a supplemental bill, is not an addition to the original bill, 
 but another original bill, which, in its consequences, may draw 
 to itself the advantage of the proceedings on the former 
 bill, (c) 
 
 No. 116. Original iill in the nature of a supplemental hill. 
 
 State of Michigan. 
 
 The Circuit Court for the County of •. In Chancery. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Tour orator, A B, of, etc., respectfully represents unto the 
 court, that on, etc., on C D, of, etc., being indebted to E F, 
 of, etc., in the sum of — ■ dollars, made and delivered to 
 
 (a) Adams v. Dowding, 3 Mad. R. 5-5; Roberts v. Eoberts, 16 Sim. R. 
 367; Story's Eq. PI. § 352. 
 
 (6) Lube'a Eq. PI. 227; Mitf. Eq. PL 98; 2 Barb. Ch. Pr. 86; Story's Bq. 
 PI. § 353. 
 
 {(■). Phelps V. Sproule, 4 Sim. R. 318; Vigera v. Lord Audhi/, 9 Sim. R. 
 75; Story's Eq. PI. § 353. 
 
234 BILLS IN NATURE OP SUPPLEMENTAL. 
 
 Original Bill — Form of. 
 
 the said E F his certain promissory note of that date, and 
 
 thereby promise to pay the said E F the said sum of 
 
 dollars, in ^^ after date, with interest at the rate of per 
 
 cent, per annum, as will appear by the said note ready to be pro- 
 duced in court, and by the copy of the same hereto attached, 
 marked " Exhibit A," and made a part of this your orator's 
 bill. That to secure the payment of the said principal sum 
 and interest as aforesaid, the said C D on the same day, by 
 his mortgage deed of that date, conveyed to the said E F in 
 fee simple, the premises described as follows, viz. : {Sere 
 insert description,) subject, however, to a condition of defeas- 
 ance, upon the payment of the principal sum and interest 
 aforesaid, according to the tenor and effect of the said note; 
 which said mortgage deed was on, etc., filed for record in the 
 
 recorder's office of the county of aforesaid ; as will appear 
 
 by the said mortgage deed, ready to be produced in conrt, 
 and by the copy thereof hereto attached, marked " Exhibit B," 
 and made a part of this your orator's bill. 
 
 Your orator further represents, that the said D has not 
 yet paid the said, principal sum of dollars, or such in- 
 terest thereon, or any part thereof, although the same long 
 since became due; by means whereof the said mortgaged 
 property became forfeited, subject nevertheless to redetnption 
 in equity by the said C D, his heirs and assigns. 
 
 Your orator further represents, that on, etc., the said E F 
 exhibited his original bill of complaint in this honorable 
 conrt, against the said C D, as defendant thereto, tliereby 
 stating the matters and things hereinbefore stated, and praying 
 that an account might be taken in that behsilf, by or under 
 the direction of the court, of what was due to him for prin- 
 cipal and interest on the said note and mortgage, and that the 
 said C D might be decreed to pay to him, the said E F, 
 whatever sum should appear to be due to him, together with 
 the costs of that suit, by a short day to be iixed by the court; 
 or that in default of such payment the said mortgaged property 
 may he sold, as the court should direct, to satisfy such debt 
 and costs; that in case of such sale, and of a failure to redeem 
 therefrom according to law, the said D, and all persons 
 claiming through or under him, after the commencement of 
 that proceeding, might be forever barred and foreclosed of all 
 equity of redemption, of the said mortgaged property; and 
 that he, the said E F, might have such other and further re- 
 lief in the premises, as equity may require, and to the court 
 might seem meet. t 
 
 And your orator further represents, that the said C D being 
 
BILLS IN NATURE OF SUPPLEMENTAL. 285 
 
 Original Bill — Fonn of. 
 
 dnly. summoned, appeared and put in his answer to the said 
 bill, to which the said E F replied, and that the said cause 
 being at issue, witnesses were examined on both sides and 
 the proofs closed; as by suclibill, answer, replication and pi'O- 
 ceedi.ijgs now remaiuiuo' as of record in this honorable court, 
 reference being thereto had, will more fully appear. 
 
 And your orator further represents, that, before any further 
 proceedings were had in the said cause, and on or about, etc., 
 the said E F was adjudged a bankrupt, by the district court 
 
 for the district of , and all the property, eifects, and 
 
 rights of property of the said E F became divested out of 
 him, and became vested in your orator as the general assignee 
 in bankruptcy, appointed as such by the said district court; as 
 by the said proceedings in bankruptcy, now remaining as of 
 record in the said district court, reference being thereto had, 
 will more fully appear. 
 
 And your orator further represents, that by virtue of his 
 appointment as assignee in bankruptcy of the said E F, as 
 aforesaid, your orator has become entitled to the said princi- 
 pal sum, and interest so due on the said note and mortgage, 
 as aforesaid. 
 
 And your orator further represents, that by the said bank- 
 ruptcy of the said E F, the said suit so instituted by him has 
 become defective, but that your orator, as assignee as afore- 
 said, is entitled to have the benefit of such suit and the pro- 
 ceedings therein, and to prosecute the same against the said 
 D, from the period when it so became defective as aforesaid, 
 and that for that purpose this his bill ought to be taken as sup- 
 plemental to the said bill of the said E F. 
 
 Forasmuch, therefore, as your orator is without remedy in 
 the premises, except in a court of equity; and to the end that 
 the said C D, who is made party defendant to this bill, may 
 be required to make full and perfect answer to the same, hut 
 not under oath, the answer under oath ieing hereby waived; 
 and that it may be declared that your orator, as such assignee 
 as aforesaid, is entitled to have the benefit of the said original 
 suit, and the proceedings therein; and that your orator may 
 be at liberty to prosecute the same against the defendant 
 from the period when the said original suit so became defective 
 by the bankruptcy of the said E F, as aforesaid; and that for 
 that purpose this bill may be taken as supplemental to the 
 said bill of the said E F; and that your orator may have the 
 same relief against the defendant as the said E F might have 
 had if he had not become bankrupt; and that your orator may 
 
236 BILLS IN NATURE OF SUPPLEMENTAL.. 
 
 Bills to carry Decrees into Execution — Nature of. 
 
 have sneh other and further relief in the premises as equity- 
 may require, and to this honorable court shall seem meet. 
 May it please the court, etc. {Pray process, as in JVo. 118.) 
 
 Proceedings wpon, — The proceedings upon a bill of this 
 description, are the same as those upon original bills in gen- 
 eral, {a) 
 
 SECTION II. 
 
 BILLS TO CAEEY DECBEES INTO EXECUTION. 
 
 Natwt'6 of. — Sometimes, from the neglect of parties, or 
 some other cause, it becomes impossible to carry a decree into 
 execution without the further decree of court. This happens, 
 generally, in cases where parties having neglected to proceed 
 upon the decree, their rights under it become so embarrassed 
 by a variety of subsequent events, that it is necessary to have 
 the decree of the court to settle and ascertain them. (b). Some- 
 times, such a bill is exhibited by a person who was not a 
 party, or who does not claim under any party to the original 
 decree, but who claims in a similar interest, or who is unable 
 to obtain the determination of his own rights, till the decree 
 is carried into execution. Or, it may be brought by or against 
 any person, claiming as assignee of a party to the decree, (e) 
 
 The court in these cases, in general, only enforces, but does 
 not vary the decree. But upon circumstances it has sometimes 
 reconsidered the original directions, and varied them in case 
 of mistake, id) And, under peculiar circumstances, it has even 
 refused to enforce the decree; (e) though in other cases the 
 
 (a) 2 Barb. Ch. Pr. 86; 3 Dan. Ch. Pr. 192. 
 
 (6) Hinde'a Pr. 68; 3 Dan. Ch. Pr. 192; Mitf. Eq. PI. 95; Barb. Ch. 
 Pr. 86. 
 
 (c) Story's Eq. PI. § 429; Coop. Eq. PI. 98, 99; Organ y. Gardiner, 1 
 Cas. in Ch. 231; Lord Cartaret v. Paachal, 3 P. Wms. 197; Binksv. Sinks, 
 2 Bligh, 593; Rylands v. Latouche, 2 Bligh, 566. 
 
 id) Mitf. Eq. PI. 95; Coop. Eq. P1.-99; Story's Eq. PL § 430; Terry y. 
 McClintock, 41 Mich. 492. 
 
 (e) Id. ; Attorney-general v. Day, 1 Ves. 218; Johnson v. Northey, Pra(i, 
 in Ch. 134. 
 
BILLS IN NATURE OF SUPPLEMENTAL. 237 
 
 Bills to carry Decrees into Execution. 
 
 courts seem to have considered that the law of the decree 
 ought riot to be examined on a bill to carry it into execu- 
 tion, {a) 
 
 It is to be observed, that although the original decree may 
 sometimes be controverted, upon a bill to carry it into execu- 
 tion, it is only the detendant in the new suit who can call it in 
 question. The complainant never can. (6) The complainant 
 must, if not satisfied with the decree, impeach it, either by a 
 bill of review, or some proceeding of that kind, (c) 
 
 A bill to carry a decree into execution is, generally, partly 
 an original bill, and partly a bill in the nature of an original 
 bill, although not strictly original; and sometimes it is like- 
 wise a bill of review, or a supplemental bill, or both, {d) The 
 frame of the bill is varied accordingly, (e) 
 
 No. 117. Sill to carry decree into execution. 
 
 State or Michigan. 
 
 The Circuit Court for the county of , in Chancery. 
 
 To the Circuit Court for the County of in Chancery. 
 
 Your orator, A B, of, etc., respectfully represents unto the 
 court, that on, etc., your orator filed his bill of comyjlaint in 
 this honorable court, against C D. stating, etc., {Here set o%ut 
 the substance of the hill — say a hill for partition^ and pray- 
 ing, etc. {Here insert the prayer of that hill.) 
 
 And your orator further re]U'esents, that a summons being 
 served upon the defendant, C D, he appeared and put in his 
 answer thereto, to which a i-e))lication was filed. And the said 
 cause being at issue, the same came on to be heard before this 
 honorable court, on, etc., when a decree was rendered by this 
 court that, etc. [here insert the suhstance of the decree)., as 
 by the said proceedings and decree now remaining as of record 
 in this honorable court, reference being thereunto had, will 
 more fully appear. 
 
 (a) .ittorne>/-general v. Da;/. 2 Ves. 232; Smythe v. Clay, 1 Bro. P. C. 
 453; Story'.) Eq. PL §430; 2 Barb. Ch. Pr. 87. 
 
 (fc) Bohinson v. Robinson, 2 Ves. 225. 
 
 (c) 2 Barb. Ch. Pr. 88; Shepherd v. Tifleij, 2 Atk. 348. 
 
 id) Pendleton v. Fay, 3 Paige, Ch, R. 204. 
 
 («)Mitf. Eq. PI. 97;' Story's Eq. PL § 432; See Polt y. Gallini, 1 Sim. & 
 Stu. 206. 
 
238 BILLS IN NATURE OF SUPPLEMENTAL. 
 
 Bills to carry Decrees into Execution. 
 
 And your orator further represents, that the commission 
 awarded by the said decree never issued, on account of the said 
 E. F. going abroad, and being, until lately, out of the jurisdic- 
 tion of this court; but the said E F having now returned, and 
 the inconvenience mentioned in your orator's former bill still 
 existing, your orator is desirous of having the said decree forth- 
 with carried into execution; but from the great length of time 
 which has elapsed, and the refusal of the said D to concur 
 therein, your orator is advised the same can not be done with- 
 out the assistance of this honorable court. 
 
 Forasmuch, therefore, as your orator, is without remedy in 
 the premises, except in a court of equity; and to the end that 
 the said D, who is made a party defendant to this bill, may 
 be required to make full and perfect answer to the same, hut 
 not under oath, the answer under oath being hereby waived: 
 and that the said decree may be directed to be forthwith carried 
 specifically into execution; and the said D ordered to do 
 and concur in all necessary acts for that purpose; and that your 
 orator may have such other and further relief in the premises 
 as equity may require, and to this honorable court shall seem 
 meet. 
 
 May it please the court, etc. {Prayer for process, as m No. 
 118.) 
 
BILL OF REVIVOR. 239 
 
 Nature of a Bill of Revivor. 
 
 CHAPTER XYIL 
 
 BILL OF EEVIVOE. 
 
 Section 1. 
 
 Nature of. 
 
 2. 
 
 When Pkopbk. 
 
 3. 
 
 Against Whom to be Tiled, 
 
 4. 
 
 Eeamb of bill. 
 
 5. 
 
 Defenses to. 
 
 6. 
 
 Replication. 
 
 7. 
 
 Order to Revive. 
 
 8. 
 
 Hearing. 
 
 9. 
 
 Effect of Revivor. 
 
 SECTION I. 
 
 NATTJEE OF A BILL OF EEVIVOE. 
 
 A bill of revivor is the usual mode of reviving and continu- 
 ing the proceedings, whenever there .is an abatement of the 
 suit before its final consummation. An abatement in the 
 sense of the common law, is an en tire overthrow or destruction 
 of the suit, so that it is quashed and ended, (a) But in the 
 sense of courts of equity, an abatement signifies only a present 
 suspension of all proceedings in the suit, from the want of 
 proper parties capable of proceeding therein. At the common 
 law, a suit when abated, is absolutelj'^ dead. While in equity 
 a suit when abated is in a state of suspended animation; and 
 it may be revived, (i) 
 
 Where a suit abates by death or marriage, the proper means 
 of restoring vitality to the cause is by bill of revivor by or 
 
 [a) 3 Black. Com. 168; Putnam v. Putnam, 4 Pick. 139; see Griggs v 
 Gear, 3 Gilm. 2. 
 
 (6) Story's Eq. PI. §§ 328, 329, 349, 354; Bonnes. Minter, 2 Ala. 406; Cul. 
 lorn v. Batre, 2 Ala. 415; Burnett v. Powers, 40 Mich. 317. 
 
240 BILL OF REVIVOR. 
 
 When Proper — Before Decree. 
 
 against the person who comes in in the same right of the orig- 
 inal party, (a) 
 
 Where the subject-matter of a suit is assigned by the com- 
 plainant, the only mode in which the assignee can revive, or 
 get the benefit of the original suit, is by filing an original bill 
 in the nature of a bill of revivor and supplement. A bill may 
 be filed for this purpose, without leave of the court, and in 
 the name of a new solicitor, (b) 
 
 SECTION II. 
 
 WHEN PEOPEK. 
 
 Before decree. — Formerly the death or marriage of one of 
 the original parties to the suit was the most common if not 
 the only cause of abatement in a suit in equity. As the in- 
 terest of the complainant usually extended to the whole suit, 
 therefore, according to the English rule, upon the death of the 
 complainant, or the marriage of a female complainant, all 
 proceedings became abated, (c) Upon the death of a defend- 
 ant, likewise, all proceedings become abated as to that defend- 
 ant. ((^) But upon the marriage of a female defendant the 
 proceedings did not abate, although her husbandought to be 
 named in the subsequent proceedings, (e) 
 
 The general rule in relation to the abatement of suits in 
 equitj"^, upon the death of parties or the marriage of &feme 
 sole complainant or defendant before a final decree, no longer 
 prevails in Michigan and many other States. For it is pi'o- 
 vided by statute that representatives of deceased parties may 
 
 {a) Bowie v. Minter, 2 Ala. 406; see Payton v. McDowell, 3 Dana, 314; 
 Holders. Mount, 2 J. J. Marsh. 187. 
 
 [h) Perhifis v. Perkins, 16 Mich. 162; Brewer v. Dodge, 28 Mich. 359. 
 
 (J) Mitf. Eq. PI. 57; Story's Eq. PI. § 3.54; Coop. Eq. PI 63; Spevcer v. 
 T'Trm/, 1 Vern. 463; ^moj!. 3 Atk.485, 486; Nichol \. Boosefelt, 3 Johns. 
 Ch. 60. 
 
 {d) Story's Eq. PI. §354; Coop. Eq. PI. 63; Thompson v. DudUy, 3 Edw. 
 Ch. 137. 
 
 (e) Miff. Eq. PI. 58; Gilb. For. Eom. 174, 177; Wyatt Pr. Reg. 90-92; 
 Story's Eq. PI. § 354. 
 
BILL OF REVIVOR. 241 
 
 When Proper — After Decree. 
 
 be made parties by a sngs^estion of tlie death upoa the records 
 of the court, whea the cause will proceed as in other cases, 
 without amending the bill, (a) 
 
 Where a complainant in chancery dies, the suit is revived 
 by an order substituting his representative as complainant, 
 without amendment of the bill. (5) 
 
 A bill of revivor before a final decree would seem now to be 
 seldom necessary. 
 
 The death of the complainant in a divorce case extinguishes 
 the suit and the whole ground of action, and though the pro- 
 ceeding itself survives, a defendant who has taken no appeal 
 from a decree granted therein, can not obtain by petition a 
 standing in court for the purpose of attacking the decree, and 
 can only do so, if at all, by a new suit impleading the parties 
 representing the property interests to be affected, (c) 
 
 In the case of the death of a mortgagor, in a foreclosure 
 suit, after payment of the first decree and before proceedings 
 for further decree on an additional installment, it seems to be 
 necessary to file a bill of revivor, (d) 
 
 A bill of revivor against a posthumous child, not a party 
 to a suit, can not be filed so as to divest his title nu7ic j>ro 
 tunc, (e) 
 
 For a full investigation of the nature, purpose and scope 
 of a bill of revivor, the attention of tiie student is directed to 
 the works on chancery pleading referred to in the note be- 
 low. (/) 
 
 After decree. — The general rule is strict, that before decree 
 the defendant can not revive; but this rule does not hold after 
 a decree, because then the rights of the parties are fixed, and 
 
 (a) Webster y. Bailey, .31 Mich. 36; isee, alao, Comp. L. 1871, Chap. 176. 
 (6) Webster y. Hitchcock, 11 Mich. -56; Webster v. Bailey, 31 Mich. 36. 
 
 (c) Zoellner v. Zosllner, 46 Mich. 511. 
 
 (d) Brown v. Thnrnpson, 29 Mich. 72. 
 (c) McConnel v. Smith, 23 III. 611. 
 
 (/) Story's Eq. Pi. § 3r.4-387; Mitf. Eq. PI. by Jeremy, 98; 2 Barb. Ch. 
 Pr. 6-58; Barton's Suit in Eq. 129-132; Hunter's Suit in Eq. 126; Welford's 
 Eq. PI. 207-216. 
 16 
 
542 BILL or REVIVOR. 
 
 When Proper — After Decree. 
 
 the complainant and deferidant are equally entitled to the 
 benefit of it. {a) After a decree to acconnt, either party may 
 revive. (5) 
 
 It was laid down as a rule by Lord Hardwicke, that a 
 defendant can revive only in one instance, and that is after a 
 decree to account, for in that case both parties are actors, (c) 
 But the principle has b.en, by subsequent decisions, extended 
 to every case in which the defendant can derive a benefit from 
 the further proceedings, {d) 
 
 The complainant has a right to revive in the first instance, 
 and the defendant can not revive except upon default of the 
 complainant to do so. {e) But in a case where both parties 
 have a right to insist that the suit shall be revived, if the 
 complainant does not revive it within a reasonable time, the 
 defendant may do so. {f) 
 
 If an abatement occurs by the death of a defendant, the 
 suit maybe revived at the instance of his representatives, {g) 
 provided they have an interest. (A) 
 
 Where the object of the revivor is not to continue the suit, 
 but merely to pat an end to an injunction, and to be allowed 
 to proceed at law, a bill of revivor by the defendant will be 
 liable to a demurrer, {i) The defendant must proceed to get 
 rid of the injunction by moving that the complainant, or his 
 representatives, revive the suit within a reasonable time, or 
 that the injunction be dissolved, {j) 
 
 (a) Lord Red. 79; Rogers v. Patterson, 4 Paige, Ch. R. 409; Anon. 3 
 Atk. 691; Souillard v. Dias, 9 Paige, Ch. R. 893. 
 
 (6) Story's Eq. PI. § 372; Coop. Eq. PI. 68; Anon. 3 Atk. 692; Devaynes 
 V. Morris, 1 Mylne & Craig, 213; Mitf. Eq. PL 79. 
 
 (c)Id.;Ib. 
 
 (d) Id.; Williams v. Coolce, ""0 Ves. R. 406. 
 
 (p) Comp. L. 1871, § .5110; Norwood v. Schmedes, 12 Ves. 311; Ander- 
 son v. White, 10 Paige, Ch. R. 575; Pell v. Elliot, Hopk. Ch. R. 86. 
 
 (/) Lsffgett V. Dubois. 2 Paige, Ch. R. 211. 
 
 (g) Williams v. Coolee, 10 Ves. 401, 406. 
 
 {h) Finch v. Lord Winchelsea, 1 Eq. Ca. Ab. 2; Anderson y. White, 10 
 Paige Ch; R. 675. 
 
 (i) Horwood V. Schmedes, 12 Ves. 311. 
 
 (j) Leggett v. Dubois, 2 Paige, Ch. R. 211. 
 
BILL OF REVIVOR. 243 
 
 Against Whom to be Filed— Before Decree. 
 
 If some of the complainants entitled to file a bill of revivor, 
 refuse to join in it, they may be made parties defendant. («) 
 
 Two parties claiming separately the same estate^ can not 
 jointly revive a bill in relation to it. (5) 
 
 SECTION III. 
 
 AGAINST WHOM TO BE FILED. 
 
 Before decree. — If the abatement has been caused by the 
 death Or marriage of a sole complainant, and the suit is 
 to be continued by the representatives of the original com- 
 plainant, or by the husband and wife, all the defendants to the 
 original bill must be parties to it. (c) And so they must if 
 the abatement has been caused by the death or marriage of 
 one of several complainants, and the suit is continued by the 
 surviving complainants, and the representatives of the de- 
 ceased complainant, or by husband and wife, in conjunction 
 with the other complainants. If the suit is continued, either 
 by the surviving complainants alone, or by tlie representatives 
 of the deceased complainant, the representatives of the deceased 
 complainant in the one case, or the surviving complainants in 
 the other, must be made defendants to the bill of revivor, in 
 conjunction with the original defendants, {d) Thus, if one of 
 several tenants in common, complainants, dies, and a bill of 
 revivor is filed by his representatives, the survivor, if not a 
 co-complainant, must be a defendant, {e) 
 
 Where the abatement is caused by the death of one of sev- 
 eral defendants, and the suit is revived by the complainant in 
 the original suit, it is only necessary, in a simple bill of re- 
 vivor, to bring the representatives of the deceased before the 
 
 (a) Wdf. Eq. PI. 210; 2 Barb. Ch. Pr. 42; F\nc\ v. LorA Winchelsea 1 
 Eq. Ca. Abr. 2 p. 17; Story's Bq.' PI. §§ 245, 246. 
 (6) Burrows v. Taylor, Wright, 600. 
 
 (c) 2 Barb. Ch. Pr. 44; 3 Dan. 210; see Auxhury v. Fincham, 1 Vem. 808. 
 {d) Auxhv/ry v. Fincham, 1 Vem. 308. 
 (e) Fallowea v. Williamson, 11 Ves. 306. 
 
244 BILL OF REVIVOR. 
 
 Where Filed after Decree — Frame of Bill — Must Pursue Original Bill. 
 
 court, without making the surviving defendants parties. («) 
 These suggestion 3 would seem uimecessary, since the statute 
 has changed the English rule, and provides that an abatenrient, 
 as we have seen, does not occur upon the death or marriage 
 of parties. (&) 
 
 Where filed after decree. — Where a bill of revivor is filed 
 after decree, all persons interested in carrying the decree into 
 effect, must be made parties to the bill of revivor. The bill, 
 however, will not be liable to demurrer for want of a party 
 who was not before the court at the time of the al)iit3in3nt, 
 although the suit may have been imperfect for want of s\ich 
 party; for it is not the office of a bill of revivor to correct 
 such imperfection, (o) 
 
 Upon a bill for an account and distribution of an estate, 
 if one of the distributees dies pending the suit, it must be 
 revived against his personal representatives, and not agiinst 
 his next of kin. {d) 
 
 SECTIOlSr IV. 
 
 FRAME OF BILL. 
 
 Must pwrsue orighial Mil. — The bill must pursue the 
 original hill; it must state who were the complainants and. de- 
 fendants to it, the proceedings thereon, the abatement, the 
 prayer or its object, and show the titte of the complainant to 
 revive, (e) It is also necessary to state so much new matter, 
 and no more, as is requisite to show how the complainant 
 
 (a) Farmers'' Loan and Trust Co. v. Seymour, 9 Paige, Ch. R. 538; 3 
 Dan. 211; 2 Barb. Ch. Pr. 44. 
 
 (6) Comp L. 1871, p. 1541, 1542. 
 
 (c) Metcalfe v. Metcalfe, 1 K3en, 74; 2 Barb. Ch. Pr. 45; Humphreys v. 
 HolUs, Jacob, 73. 
 
 {d) Jenkins v. Freyer, 4 Paige, Ch. 47. 
 
 (e) 2 Barb. Ch. Pr. 46; Story's Eq. PI. §§ 420, 636-647; Mitf. Eq. PI. 76; 
 Prac. Reg. 91; Phelps v. SprouU, 4 Sim. 318; Vigers v. Lord Audley, 9 
 Sim. 72; Coop. Eq. PI. 70: Douglas v. Sherman, 2 Paige, Ch. R. 858; 
 Humphreys v. Incledon, 1 P. Wms. 752. 
 
BILL OF REVIVOR. 245 
 
 Frame of Bill — Before Decree. 
 
 becomes entitled to revive, and to charge, that the cause ought 
 to be revived, and stand in the same condition with respect to 
 tlie parties to the original bill, as it was at the time when the 
 abatement occurred; and it must pray that the suit may be 
 revived accordingly. («.) 
 
 The 58th rule for practice in the courts of equity of the 
 United States, revised in 1870, provides that, " It shall not be 
 necessary, in any bill of revivor, or supplemental bill, to set 
 iorth any of the statements in the original suit, unless the 
 special circumstances of the case may require it." The 49th 
 of the English orders, promulgated in 1841, is to the same 
 effect, (5) and so is Chancery Rule 44, of Michigan. But this 
 rule does not dispense with the necessity of stating so ranch 
 of the pleadings in the original suit as is sufHcient to show the 
 title of the complainant, as against the defendant to revive 
 the suit, (c) 
 
 No. 118. Bill of revivor 'before decree. 
 
 State of Michigan. 
 
 The Circuit Court for the C mnty of . In Chancery. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Your orator, E F, of, etc., respectfully represents unto the 
 .court, that on, etc., one A E, late of, etc., but now deceased, 
 exliibited his bill of couiplaint, in this honorable court, against 
 C D, of, etc., as defendant thereto, stating as therein stated, 
 and praying that, etc. {Here insert- the substance of the 
 jyrayer of the original hill.) That process was duly issued 
 against the said C D, who appeared and put in his answer to 
 the said bill, to which the said A B put in his replication; 
 and afterward, depositions in said cause were taken by both 
 ])artie3. That afterward the said cause was referred to the 
 master in chancery, of this court, to report thereupon, and 
 that some proceedings' have been had before the said master, 
 but no general report has yet been made in said cause; and 
 
 that the said A B, on or about the day of , A. D. 
 
 18 — , departed this life intestate; that your orator has been 
 
 (a) Story's Eq. PI. § 374. 
 (h) Story's Eq. PI. § 374. 
 (c) Griffith V. Eicketts, 3 Hare, 476. 
 
248 BILL OF REVIVOR 
 
 Prani^ of Bill — After Dacree. 
 
 duly appointed his administrator, and lias tliereby become his 
 legal representative; that the said suit and proceedings liav- 
 ing become abated by the death of the said A B, your orator 
 is, as he is advised, entitled, as the personal representative of 
 the said A 13, to have the said suit and proceedings revived 
 against the said D, and to have the sairl cause in tlie same 
 state and condition as the same was previously to the death of 
 the said D. 
 
 Forasmuch, therefore, as your orator is without remedy in 
 the premises, except in a court of equity; and to the end that 
 the said C D, who is made party defendant to this bill, may 
 be required to make full and direct answer to tlie same, {but 
 not under oath, the answer under oath being hereby waived), 
 that the said suit may stand revived, and be in the same 
 plight and condition as the same was at the time of the 
 death of the said A B; and that your orator may have such 
 other and further relief in the premises as equity may require, 
 and to your honor shall seem meet. 
 
 May it please the court, the premises being considered, to 
 grant unto your orator the most gracious writ of subpoena of 
 the people of the State of Michigan, to be issued out of and un- 
 der the seal of this honorable court, to be directed to the said 
 D, therein and thereby commanding hiin, on a certain day, 
 and under a certain penalty, to be therein inserted, personally 
 to be and appear before tliis honorable court, then and there 
 to answer all and singular the said premises, and to stand to, 
 and abide and perform such order and decree therein, as shall 
 be agreeable to equity and good conscience. And yonr orator- 
 will ever pray, etc. E F, 
 
 Solicitor for complainant, and of counsel. 
 
 Wo. 119. Bill of revivor after decree — against the surviving 
 executor of one of the defendants, since deceased. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Yonr orator, A B, of, etc., respectfully represents unto the 
 court, that on, etc., your orator exhibited his bill of complaint 
 in this honorable court, against C D and E D, his wife, of, 
 etc., as defendants thereto, stating as therein stated, and pray- 
 ing that, etc. (Here insert the substance of the prayer of the 
 original biU,.) That process was duly served upon the said C 
 D and E D, his wife; and that they appeared and put in their 
 
BILL OF REVIVOR. 247 
 
 Defenses to. 
 
 answers to said bill; to which your orator put in his replica- 
 tion; and afterward, on, etc., the said cause catne on to be 
 heard before this honorable court, when it was ordered, ad- 
 judged and decreed, as follows: {Here set out the decree^ 
 
 Your orator further represents tJiat before any further or 
 other proceedings were had in said cause, on, etc., the said 
 C D departed this life, having first duly made and published 
 his last will and testament in writing, dated on, etc., and 
 thereby appointed his said wife, E D, and the defendant, E 
 E, executrix and executor thereof, who duly proved tiie said 
 will in the proper court, and took upon themselves the bur- 
 den of the execution thereof; and the said E D has since also 
 departed this life, leaving the said defendant, E F, her sur- 
 viving, and who is now the sole personal representative of the 
 said C D, deceased, and as such entitled to the principal sum 
 
 of dollars, and interest due from the said G \\ to tlie 
 
 said C D, and secured by way of mortgage upon his, the said 
 G H's, share of the said estate and premises in the pleadings 
 mentioned; and the said suit and proceedings having become 
 abated by the death of the said C D, your orator is advised 
 that he is entitled to have the same revived against the said 
 E F as his surviving executor. 
 
 Forasmuch, therefore, as your orator is without remedy in 
 the premises, except in a court of equity; and to the end tliat 
 the said E F, who is made party defendant to tliis bill, may 
 be required to make full and direct answer to the same, Init 
 not under oath, the answer under oath being hereiy waived, 
 that the said suit and proceedings may stand and be revived 
 against the said E F, and be in the same plight and condition 
 as the same were in at the time of the abatement thereof; and 
 that your orator may have the benefit thereof; and that your 
 orator may have such other and further relief in the premises 
 as equity may require and to this honorable court shall seein 
 meet. 
 
 May it please, etc. {Pray process, as in No. 118 — the last 
 form.) 
 
 SECTION V. 
 
 DEFENSES TO. 
 
 if the defendant desires to resist the objects of a bill of 
 revivor, he may demur, plead or answer, as the nature of the 
 case may require. 
 
248 BILL OF REVIVOR. 
 
 Defenses to — Demurrer — Plea. 
 
 Demurrer. — If the bill does not show a sufficient ground 
 for reviving tlie suit, (a) or any part of it, (5) either by or 
 against ihe person by or against whom it is instituted, the 
 defendant may, by demurrer, show cause against the revival, (c) 
 
 A demurrer will lie to a bill of revivor, either for want of 
 privity (cZ) or for want of interest, {e) or for some imperfec- 
 tion in the frame in the bill. (_/") 
 
 Plea, — Where a bill of revivor is brought without a suffi- 
 cient cause to revive, and this fact is not apparent on the face 
 of the bill, the defendant may plead the matter necessary to 
 show that the complainant is not entitled to revive the suit 
 against him. (^) Or if the complainant is not entitled to re- 
 vive the suit at all, though a title is stated in the bill, so that 
 -the defendant can not demur, the objection to the complainant's 
 title may bs takeu by way of plea. (A) So, if a person entitled 
 to revive a suit does not proceed in due time, he may be barred 
 by the statute of limitations; which may be pleaded to a bill 
 of revivor afterward filed. {%) Yet where the bill of revivor 
 is after a decree to account, it is not within or barred by the 
 statute of limitations. (_;') If a suit abates before decree, 
 the statute of limitations is a good plea to revivor. (^) 
 
 (n) Harris v. Polland, 3 P. Wms. 348. 
 (h) 1 Eq. Ca. Abr. 3, 4. 
 
 {c) University Col. v. Foxcroft, 2 Chan. R. 244; Nanny v. Totty, 11 
 Price, 117; 2 I arb. Ch. Pr. 50. 
 
 [d) 2 Barb. Ch. Pr. 39, 40, 51; Story's Bq. PI. §§617-625; Coop. Eq. PI. . 
 01, 76, 210, 211. 
 
 (e) Id. lb.; Hot-wood v. Schmedes, 12 Ves. 311; 3 Dan. 218. 
 
 (/) lb.; Fallowes v. Williamson, 11 Ves. 306; Gould v. Barnes, 1 Dick. 
 13:^; Melcalfe v. Metcalfe, 1 Keen, 74; Pendleton v. Fay, 3 Paige, Ch. 204. 
 
 ig) Mitf. Eq. PI. 289; 2 Barb. Ch. Pr. 53; Pendleton v. Fay, 8 Paige, 
 Ch. R. 204. 
 
 [h) Id. lb. 
 
 (/) Mitf. Eq. PL 290; 2 Barb. Ch. Pr. 53. 
 
 (j) Hollingshead's Case, 1 P. Wms. 473; Litton's Case, Gary, 8; Hovenden 
 V. Lord Annesley, 2 Sch. & Lef. 607. 
 
 {k) Welf. Eq. PI. 218; Comber's Case; 1 P. Wms. 766; Wilkinson v. Lov- 
 ell, 2 Dick. 601; Hercy v. Dinwoody, 2 Ves. Jr. 91; Egremont v. Hamilton, 
 1 B. & Beat, .524; see Barry v. Jenkins, 1 Mylne & Craig, 118; Murray v. 
 E. I. Co. 5 Bam. & Aid, 204; Story's Eq. PI. § 410. 
 
BILL OF REVIVOR. 249 
 
 Defenses to — Answer. 
 
 A defendant to a bill of revivor can not support, as a defense, 
 a plea wliich has been pleaded by the original defendant and 
 overruled. («) 
 
 The want of parties may be pleaded to a bill of revivor. (5) 
 
 Answer. — -It seems to have been thought that a defendant 
 could only object to a revivor by way of plea or demurrer, (e) 
 and there may be great convenience in thus making the objec- 
 tion; for if the defendant objects by answer, it will not prevent 
 the order to revive, {d) and the point can only be determined 
 by bringing the cause regularly to a hearing; whereas, if the 
 objection is taken by plea or demurrer, it may, in general, be 
 immediately determined in a summary way. (e) 
 
 But although, where an answer is called for, the defendant 
 may by it object to the revivor, yet if it be a mere bill of re- 
 vivor, in which the question between the parties is simply as 
 to the right to revive, an answer, unless required by the bill, is 
 unnecessary. (_/") 
 
 Where an answer is required, it must be confined to such 
 matters as are called for by the bill, or wliich would be mate- 
 rial to the defense, with reference to the order made upon it. 
 Upon this ground it has been held that where a defendant to a 
 bill of revivor inserted in his answer a variety of matters 
 which, if stated in answer to the original bill, might have 
 been a good defense to that bill, but was not relevant to the 
 question of revivor, the answer was to that extent imperti- 
 nent, {g) And so, where the answer set out a detailed account 
 of the proceedings which had taken place in the suit, for the 
 purpose of objecting to them as irregular and oppressive, and 
 
 (a) Samanda y. Furtado, 3 Bro. C. C. 70; 2 Barb. Ch. Pr. 53. 
 (h) Fallowes Y.Williamson, 11 Ves. 306; Beameson Pleas, 294; Coop. Eq. 
 PI. 303. 
 
 (c) Harris v. Pollard, 3 P. Wms. 348. 
 
 (d) 2 Barb. Ch. Pr. 50, 54; Nanny v. Tuttij, 11 Price, 117; Day T. Potter, 
 9 Paipre, Ch. R. 645; Lewis v. Bridgman, 2 Sim. 465. 
 
 (e) Mitf. Eq. PI. 289; 2 Barb. Ch. Pr. 54. 
 (/) 3 Pan. 320; 2 Barb. Ch. Pr. 54. 
 
 (g) Nanny v. Totty, 11 Price, 117. 
 
250 BILL OF JBEVIVOR. 
 
 Replication. 
 
 it was insisted that some of the orders which had been made 
 in the cause ought to be set aside, and that money which had 
 been paid out of court under them should be brought back; 
 it was held, upon exceptions to the master's report, upon a 
 reference for impertinence, that such statements in the answer 
 were impertinent, {a) 
 
 An answer to-a bill of reviv^or is liable to exceptions for 
 impertinence and insufficiency, the same as an answer to an 
 original bill. But exceptions must be taken before the com- 
 plainant proceeds to revive the suit, or they will be considered 
 as waived. (5) 
 
 The defendant may by his answer, consent that the suit be 
 revived. In that case the complainant may enter an order of 
 course for the revival of the suit, (c) 
 
 The answer of a defendant to a bill of revivor can not dis- 
 pute the merits of the decree, {d) 
 
 SECTION VL 
 
 EEPLICATION. 
 
 If the answer to the bill of revivor does not admit the com- 
 plainant's title to revive, or states any circumstances which 
 the complainant is desirous of controverting, it must, if the 
 abatement has occurred after decree, or after issue joined in 
 tlie original suit, be replied to; after which the proceedings 
 upon it will be the same as upon an original bill, (e) 
 
 If the bill of revivor is filed before the decree, or before 
 issue joined in the original cause, a separate replication will be 
 necessary. {/) 
 
 (a) Wagstaff v. Bryan, 1 Russ. & My. 28. 
 
 lb) 2 Barb. Ck. Pr. 54, 55; Gilb. For. Rom. 180. 
 
 (c) Seaton on Decrees, 384. 
 
 (d) Arnold v. Sti/les, 2 Blackf. 391. 
 
 (e) 1 Smith, 523; 2 Barb. Ch. Pr. 55. 
 
 (/) C'oltonY. Earl of Carlisle, 5 Mad. 427. 
 
BILL OF REVIVOR. 251 
 
 Order to Revive. 
 
 SECTION VII. 
 
 OEDEE TO EEVIVE. 
 
 If the defendant fails to appear and answer, the bill may be 
 taken as confessed, when an order of course may be entered 
 that the suit stand revived, (a) So if the defendant, by his 
 answer, consents to a revival of the suit, (p) 
 
 No. 120. Order for revivor. 
 
 {Caption, cmd title of cause as im, No. 105, ante.) 
 
 This cause coming on to be heard this day, and it appearing 
 to the court that on, etc., the complainant exliibited his bill in 
 this court, against C D and E D, his wife, to be relieved 
 touching the several matters therein contained; that the said 
 C D and E D appeared and put in their answers to said hill, 
 to which the complainant tiled a replication ; and that after- 
 ward, on, etc., the said cause came on to be heard in this 
 court, when it was ordered, adjudged and decreed, that, etc., 
 {Here set out the decree) that before any further proceedings 
 were had in said cause, the said C D departed this life, hav- 
 ing first duly made his will, thereof appointed the said E D, 
 his wife, and the said E F, executrix and executor, who duly 
 proved the same; and that the said E D has since also de- 
 parted this life, leaving the defendant, E F, her surviving, as 
 the sole personal representative of the said C D, deceased; 
 and that the said suit and proceedings abated by the death of 
 the said C D, that the complainant has exhibited his bill of 
 revivor in this court against the defendant, E F; and the de- 
 fendant having been duly served with the process of summons 
 of this court, more than ten days prior to the present term, 
 and having failed to appear and put in his answer, it is or- 
 dered that the said suit and proceedings do stand revived 
 against the said E F, and be in the same plight and condition 
 they were in at the time of the death of the said C D. 
 
 (ffl) Seaton on Decrees, 884. 
 (6) Id. 2. Barb. Ch. Pr. 50. 
 
252 BILL O'P REVIVOR. 
 
 Hearing. 
 
 SECTION VIII. 
 
 HEARING. 
 
 The necessity for bringing a bill of revivor to a hearing de- 
 pends upon whether the object of such bill lias been accom- 
 plished by the order to revive. If it merely prays that the 
 suit may be revived, a hearing will be unnecessary, unless an 
 answer has been put in denying the complainant's right to re- 
 vive, as the object will be completely effected by the order to 
 revive; and if under such circumstances the revivor suit is 
 brought on for hearing, the complainant will have to pay the 
 costs. This will apply equally to cases in which the bill of 
 revivor is filed by the complainant, or those who represent 
 him, or after decree by a defendant, or those who represent 
 him. The mere order to revive will, in such case, be effectual 
 against both complainant and co-defendants, (a) 
 
 In the case of an answer contesting the right to revive, the 
 cause must proceed upon the bill of revivor in the same 
 manner as upon other bills, and the matters of fact must be 
 ascertained, and those of law determined as usual. When it is 
 ripe for hearing, it is brought on in the usual mode, notwith- 
 standing an oi'der to revive has been obtained; upon which 
 the complainant must establish his right to revive, or he will 
 fail in the suit. If the decision of the court is in favor of the 
 bill, the order pronounced will be that the original suit stands 
 revived, and be carried an and prosecuted between the parties 
 to the original suit, in like manner as between the parties to 
 the original' suit, (b) 
 
 Whenever the bill contains supplemental matter, as well as 
 matter of revivor, a hearing must be had; and in such case, the 
 bill of revivor must be set down for hearing as well against the 
 
 (a) 3 Dan. 221; Priten v. Lunn, 5 Rusg. 3; Day v. Potter, 9 Paige, Ch. 
 R. 645; 2 Barb. Ch. Pr. 56. 
 
 (6)1 Hoff. Pr. 383; Dai) v. Potter, 9 Paige, Ch. R. 645; Seaton on De- 
 crees, 385; Harris v. Pollard, 3 P. Wms. R. 348; 2 Barb. Ch. Pr.56; 
 Story's Eq. PI. § 374; BeUes v. Dana, 2 Sumner, R. 383. 
 
BILL OF REVIVOR. 253 
 
 Effect of Revivor. 
 
 party to the revivor as against tlie party to the supplemental 
 matter. («) 
 
 Where tiie decree in the original suit contains a specific di- 
 rection, as that the defendant sliall pay a certain sum of 
 money, that direction can not be carried into execution by the 
 mere order to revive; but a decree must be made in the re- 
 vived suit for that purpose, {i) 
 
 If the bill of revivor is filed before the decree, it may, if 
 the original cause has not been heard, be heard together vs^ith 
 it; but if the original cause has already been set down, it 
 must be heard separately; and in respect to all fees and 
 charges, it is considered as a separate cause until the decree, (c) 
 
 If there has been a decree in the original cause, the bill of 
 revivor must, if necessary to be heard, be heard separately; or 
 it may be directed to come on for hearing with the cause for 
 .further directions, (d) 
 
 SECTION IX. 
 
 EFFECT OF EEYITOJE. 
 
 A bill of revivor merely substantiates the suit, and brings 
 before the court the parties necessary to see to the execution 
 of the decree, and to be the objects of its operation, rather 
 than to litigate the claims made by the several parties in the 
 original pleadings, except so far as they remain undecided, (e) 
 
 Where the abatement of the suit is total, an order to revive 
 places the suit and all the proceedings in it, in precisely the 
 same plight, state and condition that the same were in at the 
 time when the abatement took place. (/") And the new com- 
 plainant may take the same proceedings in the cause that the 
 
 (ffl) 2Barb. Ch. Pr. 56, 57; Lake v. Austwich, 4 Lond. Jurist, 314; Mitf. Eq. 
 PI. 76. 
 (6) Harries v. Johnson, 3 Young & Coll. 5S3. 
 
 (c) 1 Smith's Pr. 523; 2 Barb. Cb. Pr. 57. 
 
 (d) 3 Uan. R. 223; 2 Barb. Ch. Pr. 57. 
 
 («)2 Barb. Ch. Pr. 57; Story'8 Eq. PI. § 375; Coop. Eq. PI. 71; 
 Devaijnes v. Morris, 1 Mylne & Craig, 213, 225. 
 , (f)Gregsony. Oswald. 1 Cox, 343. 
 
254 BILL OF REVIVOR. 
 
 Effect of Revivor. 
 
 original complainant might have taken. Thus, the complain- 
 ant in a revived suit may amend the original suit in the same 
 manner that the original complainant might have done, and 
 may have an attachment against the defendantfor not answer- 
 ing the amended bill, (a) So, also, the new complainant may 
 prosecute process of contempt against the defendant taking it 
 up where it left off at the abatement, and if a process has been 
 issued before the abatement, it will be revived by the order to 
 revive the suit. (5) 
 
 But the case is otherwise where the abatement is occasioned 
 by the death of the defendant. In such case, the process being 
 personal, can not be revived. In general, however, where an 
 abatement is occasioned by the death of the defendant, the or- 
 der to revive against his representatives will place the suit as 
 fully in the same position, with regard to such representatives, 
 as can be done with reference to the change of the individual 
 before the court, (c) 
 
 Where there is a cross-bill, a revivor of the original suit will 
 not have the effect to revive the cross-suit; but there must be 
 a revivor in each cause, (d) 
 
 {a) Mitf. Eq. PI. 78; Phillips v. Darhe, 1 Dick. 98. 
 (6) 2 Barb. Ch. Pr. 58; Hyde v. Forster, 1 Dick. R. 134. 
 (c) 3 Dan. 227; 2 Barb. Ch. Pr. 58. 
 {d) Welf. Eq. PL 220. 
 
BILLS IN NATURE OF BILLS OP EEVIVOR. 255 
 
 Nature and Uses. 
 
 CHAPTEE XVIII. 
 
 BILLS m THE NATURE OF BILLS OF BEVIVOE, 
 
 Section 1. Natuke and Uses. 
 
 2. Parties to. 
 
 3. Frame of Bill. 
 
 4. Defenses to, and Proceedings Upon. 
 
 SECTION I. 
 
 NATUEE AND USES. 
 
 A bill of revivor, properly so called, lies only in cases where 
 a death or marriage intervenes. In each of these cases there 
 is no other fact to be ascertained than whether the new party 
 brought before the court has the character imputed to him. If 
 he has, the revivor is of course, {a) But tliera are many cases 
 in which there are other facts which may be brought into 
 litigation, besides the mere question of the character of the 
 new party; and to such cases, therefore, the simple bill of re- 
 vivor does not technically apply. Under such drcumstances 
 an original bill, in the n.ature of a bill of revivor, is the ap- 
 propriate process to bring those facts before the court, and to 
 put the original proceedings again in motion, and to enable 
 the new party to have the benefit of the former proceed- 
 ings. {i>) 
 
 Thus if the deatli of a party, whose interest is not deter- 
 mined by his death, is attended with such a transmission of his 
 interests, that the title to it, as well as the person entitled, may 
 be litigated in the court of chancery, as in the case of a devise 
 
 , (a) Coop. Eq. PI. 64; Story's Eq. PI. § 377. 
 
 (6) 2 Barb. Ch. Pr. 80-81; Story's Eq. PI. § 377; Mitf. Eq. PL 97; Attor- 
 ney-general v. Foster, 2 Hare, 81, 93, 94; Perkins v. Perkins, 16 Mteh. 
 162; Brewer v. Dodge, 28 Mich. 359. 
 
256 BILLS IN NATURE OF BILLS OF EEVIVOR. 
 
 Nature and Uses. 
 
 of a real estate, the suit is not permitted to be continued by a 
 bill of revivor. An original bill, upon which the title may he 
 contested, must be tiled. And this bill will have so tar the 
 effect of a bill of revi%'or, that if the title of the representative 
 substituted by the act of the deceased party is established, the 
 same benefit may be had of tlie proceedings upon the former 
 bill, as if the suit had been continued by the revivor, (a) 
 
 Where all the parties to a suit have died subsequent to the 
 striking of the cause from the docket, the proper practice to- 
 bring the case again before tlie court, is by a bill in the nature 
 of a bill of revivor, by the heirs- at-law of one party against 
 the heirs-at-law of the other party. (J) 
 
 The distinction between bills of revivor, and bills in the 
 nature of bills of revivor, seems to be, that the former, in case 
 of death, are founded upon mere privity of blood or represen- 
 tation by operation of law; the latter upon privity of estate or 
 title by the act of the party, (c) In the former case nothing 
 can be in contest, except whether the party be the heir or per- 
 sonal representative; in the latter, the nature and operation 
 of the whole act, by which the privity of estate or title is cre- 
 ated, is open to controversy, {d) Thus for example, the heir 
 may be made a party by a bill of revivor; for his title is by 
 mere operation of law. But the devisee, or purchaser of the 
 complainant's interest, must come in by a bill in the nature 
 of a bill of revivor; for he comes in as a purchaser under the 
 testator in privity of estate or title, which may be disputed, (e) 
 
 The bill is said to be original, merely on account of the want 
 of that privity of title between the party, to the former hill 
 and the party to the latter bill, altliough claiming the same 
 
 (a) Story's Eq. PI. § 378; Mitf. Eq. PI. 71, 97; Clare v. Wordell, a Vera. 
 548; Jones v. Jones, 3 Atk. 217; Douglas y. Sherman, 2 Paige, Ch. R. 3J8; 
 Slack v. Wolcott, 3'Mason, 508. 
 
 (6) Welch V. Lewis, 31 HI. 446; 29 111. 535; 3 Dan. Ch. Pr. 1718. 
 
 (c) Wyatt, Pr. Reg. 90; Story's Eq. PL § 379. 
 
 {d) 2 Barb. Ch. Pr. 81; Story's Eq. PI. §379; Slachy. Wolcott, 3 Ma- 
 son's R. 508. 
 
 (e) Coop. Eq. PI. 63 69, 77; Gilb. For. Rom. 172; Wyatt, Pr. Reg. 90; 
 Douqlas v. Sherman, 2 Paige, Cli. R. 358; Story's Eq. PI. § 379; Attorney- 
 general V. Foster, 2 Kare, R. 81, 93; 2 Barb. Ch. Pr. 82. 
 
BILLS IN NATURE OF BILLS OF EEVIVOE. 257 
 
 Parties to — Frame of Bill. 
 
 interest which would have permitted the continuance ot the 
 suit by a bill of revivor, {a) Therefore, when the validity of 
 the alleged transmission of interest is establisiied, the party to 
 the new bill will be equally bound by, or have advantage of, 
 the proceedings on the original bill, as if there had been such 
 a privity between him and the party to the original bill, claim- 
 ing the same interest, (b) And the suit is considered as pend- 
 ing from the filing of the original bill, so as to save the statute 
 of limitations, to have the advantage of compelling the defend- 
 ant to answer, before an answer can be compelled to a cross- 
 bill, and to have every other advantage, which would have 
 attended the institution by the original bill, if it could have 
 been continued by a bill of revivor merely, (c) 
 
 SECTION II. 
 
 PAETIBS TO. 
 
 "Where a bill in the nature of a bill of revivor is filed by any 
 one who was not a party to the original suit, .ther as the 
 representative of a deceased party or otherwise, ah of the other 
 parties to such original suit, who have any interest in the fur- 
 ther proceedings therein, should be made parties to such b'll, 
 either as complainants or defendants, [d) 
 
 A bill of this nature can not be broiiijht except by some 
 person who claims in privity with the complainant in the 
 original bill, {e) 
 
 SECTION III. 
 
 FEAME OF BILL. 
 
 An original bill in the nature of a bill of revivor, should, in 
 general, state the same facts as in a bill of revivor. It should 
 
 (a) Mitf. Eq. PI. 97, 98; Story's Kq. PI. §380. 
 \h) Stoiy's Eq. PI. §380; Mitf. Eq. PI. 97. 
 
 (c) Id.; Merri/wether v. Mellich, 13 Ves. 161, 163. 
 
 (d) The Fanners Loan d; T. Co. v. Sei/mom; 5 Paige, Ch. R. 538. 
 
 (e) Oldham v. Eboral, Coop. Select Cas. 27; Rylands v. Latouche, 2 
 BUgh, 58 1; Tonkin v. Lethbridge, Cpop. R. 43; 2 Barb. Ch. Pr. 82. 
 
 17 
 
258 BILLS IN NATURE OP BILLS OF REVIVOR. 
 
 form of Bill — Bill in Nature of Bill of Revivor. 
 
 state the origiual bill, tlie proceedings upon it, the abatement, 
 and the manner in which the interest of the party deceased has 
 been transmitted. It mnst also charge the validity of the 
 transmission, and state the rights which have accrued by 
 it. (a) The bill shonld also pray that the suit may be revived, 
 and that the cotiiplainant have the benefit of the former pro- 
 ceedings therein, (b) 
 
 No. 121. Bill in the nature of a hill of revivor. 
 
 ' State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the County of ■ . In Chancery. 
 
 Your orator, A B, of, etc., respectfully represents unto the 
 court that on, etc., one E F, of, etc., filed his bill of com- 
 plaint in this honorable court, against C D, of, etc., thereby 
 stating, etc. {Here set forth the material parts of the hill, — 
 supposing it to he a hill for speoifio performance), and pray- 
 ing, etc. {Here set out the suhstanGe of the prayer), that the 
 said C D, being served with process, appeared and put in 
 his answer to the said bill, and E F, the complainant therein, 
 replied thereto, and that the said cause being at issue, wit- 
 nesses were examined on both sides, and the proofs closed; as 
 by the said bill, answer, replication and proceedings now re- 
 maining as of record in this court, reference being thereto 
 had, will more fully appear. 
 
 And your orator further represents, that before any further 
 proceedings were had in the said suit, and on, etc., he, the 
 said E F, departed this life, leaving D F, the other defend- 
 ant hereinafter named, his son and only heir, him surviving, 
 and having previously made and published his last will and 
 testament in writing, bearing date on, etc., and executed and 
 attested so as to pa^s real estate, and having thereby given 
 and devised the said real estate so contracted to be purchased 
 by him as aforesaid, to your orator, his heirs and assigns, and 
 having appointed your orator sole executor thereof, as in and 
 by said bill, when produced, will more fully appear. 
 
 And your orator further represents that the said will was 
 
 (a) Mitf. Eq. PL 97: Phelps v. SprouU, 4 Sim. R. 318; Stor\-'s Eq. PI. 
 § 336. 
 
 (6) 2 Barb. Oh. Pr. 83; 2 Dan. R. 230; Van Heyfch. Eq. Drafts. 348; Bar- 
 ton's Suit in Eq. 132. 
 
BILLS IN NATURE OF BILLS OP REVIVOR. 259 
 
 rorm of Bill — Bill in Nature of Bill of Revivor. 
 
 on, etc., duly proved by your orator, before the court, 
 
 of the county of , whereby yonr orator became the le- 
 
 j<al personal representative of the said E F, as ]^y the let- 
 ters testamentary issued by said court, ready to be pro- 
 duced in court, will more fully appear. 
 
 Your orator further represents, that by virtue of the devise 
 so made to your orator as aforesaid, he is entitled to stand in 
 the place of the said E F, with respect to the said contract of, 
 etc., and to have the same specifically performed, and to have 
 the said premises conveyed, by the said D, to your orator, 
 
 upon payment of the ^aid sum of dollars, which sum 
 
 your orator hereby offers to pay. 
 
 And your orator represents, that by the death of the said 
 E F, the said suit and proceedings became abated, but that 
 your orator is, as he is advised, entitled to ^^ave the same re- 
 vived against the said D, and to have the same relief against 
 him, as the said E F would be entitled to if he were still liv- 
 ing. 
 
 And your orator further represents, that the said ]) F 
 sometimes, though without any ground, questions the validity 
 of the said devise to your orator, and is. therefore, as your 
 orator is advised, a necessary party to this suit. 
 
 Forasmuch, therefore, as your orator is without remedy in 
 the premises, except in a court of equity ; and to the end that 
 the said C t) and D F, who are made parties defendant to 
 this bill, may be required to make full and direct answer to 
 thesanie, hui not on oath, the ansvjer under oath being hereby 
 warned; and that the defendants may, if they can, show why 
 the said suit arid proceedings should not be revived, and your 
 orator have the relief hereby pi-ayed; and tl;at it may be de- 
 clared that your orator as such devisee of the said E F as afore- 
 said, is entitled to revive the said suit and proceedings so be- 
 come abated as aforesaid, and to have the benefit thereof; and 
 that the said suit and proceedings may be decreed to stand 
 and be revived accordingly, and to be in the same plight and 
 condition as they were in at the time of the said abatement; 
 and that your orator may have the same relief against the de- 
 fendant C D, as the said E F would be entitled to if he 
 were still living; and if necessary for that purpose, that the 
 said will of the said E F may be established; and that your 
 orator may have such other and further relief in the premises 
 as equity may require, and to this honorable court shall seem 
 meet. 
 
 May it please, etc. (Pray for process against C D and D 
 F as in No. 118.) 
 
260 BILLS IN NATURE OF BILLS OF REVIVOR. 
 
 Defenses to, and Proceedings Upon. 
 
 SECTION IV. 
 DEFENSES TO, AND PKOCEEDINGS UPON. 
 
 Bills in the nature of bills of revivor are liable to demur- 
 rers, pleas or answer, on the same ground as original, bills 
 and bills of revivor, of whose nature they partake, and tlie 
 practice as to demurring, pleading to, and answering them is 
 the same in all respects as the practice upon original bills, (a) 
 
 And in all other respects the practice upon bills of tliis 
 nature is the same, as upon original bills, and they must be 
 brought on for hearing in the same manner before any beiietit 
 can be derived from them; a revivor in such cases being only 
 obtained by decree and not by an order to revive, as in the 
 case of an ordinary bill of revivor, (b) 
 
 (a) 2 Barb. Ch. Pr. 83; 3 Dan. R. 230. 
 (6) 3 Dan R. 230; 2 Barb. Ch. Pr. 84. 
 
BILLS OF REVIVOR AND SUPPLEMENT. 261 
 
 Nature of, and when Proper. 
 
 CHAPTER XIX. 
 
 BILLS OF EEVIVOE AND SUPPLEMENT. 
 
 Nature of, and when proper. — A bill of revivor and sxip- 
 plemeut is a mere componnd of a supplemental bill and a bill 
 of revivor; and in its separate parts it must be framed and 
 proceeded upon in the same manner, (a) It not only con- 
 tinues a suit which has abated, but supplies an)' defects in the 
 original bill arising from subsequent events. (5) And when- 
 ever a complainant has a right to revive a suit, he may add 
 to the bill of revivor such supp'lemental matter as is proper 
 to be added, (c) 
 
 It becomes proper where not only an abatement has taken 
 place in a suit, but defects are to be supplied, or new events 
 are to be stated, which have arisen since the commencement 
 of the suit. Thus, if a suit becomes abated, and by any act 
 besides the event by which the abatement happens, the rights 
 of the parties are affected, as by a settlement or a devise, 
 under certain circumstances, although a bill of revivor may 
 continue the suit, so as to enable the parties to prosecute it; 
 yet to bring before the court the whole matter necessary for 
 its consideration, the parties must by supplemental bill, added 
 to and made part of the bill of revivor, show the settlement, 
 or devise, or other act by which their rights are affected. 
 And in the same manner, if any other event which occasions 
 an abatement is accompanied or followed by any matter 
 necessary to be stated to the court, either to show the rights 
 of the parties, or to obtain the full benefit of the suit, beyond 
 what is merely.necessary to show by or against whom the cause 
 
 (a) Story's Eq. PL § 337; Mitf. Eq. Pi. 80. 
 
 (t) Wfstcott V. Cady, 5 Johns. Ch. R. 342; Pendleton v. Fay, 3 Paige, 
 Ch. R. 204. 
 {c)Pendleton v. Fay, 8 Paige, Ch. R. 204; 2 Barb. Ch. Pr. 88. 
 
233 BILLS OF REVIVOR AND SUPPLEMENT. 
 
 Practice Upon — Bill of Revivor and Supplement. 
 
 is to be revived, that matter inu.-^t be set forth by way of sup- 
 plemental bill added to the bill of revivor, {a) 
 
 Practice upon. — The bill of revivor and supplement are 
 each liable to the same description of defense as the bills, if 
 separate, would be subject to (5), and are to be framed and 
 proceeded upon in the same manner as bills of revivor and 
 supplemental bills, (c) If matters contained in the bill of 
 revivor and supplement are irrelevant or improper, the de- 
 fendant may avail himself of the objection, either by a plea, 
 or by demurrer, or by exceptions for impertinence. (cT) But 
 the insertion of supplemental matter in a bill of this nature 
 will not authorize the defendant to demur to the whole bill. 
 He should demur to the supplemental matter only, {e) 
 
 No. 122. Bill of revimor and supplement. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancei'y. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Your orator, A B, of, etc., respectfully represents unto the 
 court, that on, etc., your orator exhibited his original bill of 
 complaint in this honorable court against CD, of, etc., 
 thereby, etc. {Here set forth so much of the Mil and prayer 
 as m,ay he necessary); sn\A tiie said C D, being duly served 
 with process, appeared and put in his answer to said bill, and 
 your orator having replied thereto, witnesses were examined 
 in said cause, on both sides; as by the said pleadings and 
 other proceedings in the said cause, now remaining as of rec- 
 ord in tiiis honorable court, reference thereunto being had, 
 will more fully appear. 
 
 And your orator further represents, that before any further 
 proceedings were had in the said cause, and on, etc., the said 
 C D departed this life without issue, leaving E F, of, etc., 
 
 (a) Story's Eq. PI. § 387; Coop. Eq. PL 64; Merry imther v. Mellich, 13 
 Ves. 161, 103, 485; Bampton v. Blrchall, 1 Phillips, 568; Manchester v. 
 Matthewson, 2 R. 1.416; Eylands v. Latouche, 2 Bligh, 566. 
 
 (6) 3 Dan. Ch. Pr. 232; 2 Barb. Ch. Pr. 89. 
 
 (c) Welf. Eq. PI. 222; Wilf. Eq. PI. 80; Coop. Eq. PL 84. 
 
 (d) Pendleton v Fay, 3 Paigre, Ch. R. 204. 
 
 (e) Randolph v. Dicherson, 5 Paige, Oh. R. 517; 2 Barb. Ch. Pr. 89. 
 
BILLS OF REVIVOR AND SUPPLEMKNT. 263 
 
 Bill of Revivor and Supplement. 
 
 a defendant hereinafter named, his heir-at-law^ and the said 
 suit, and the proceedings therein having become abated, by 
 the death of the said D, your orator, as ho is advised, is 
 entitled to have the same revived against tlie said E F, as 
 the heir of the said C D, and restored to tlie same condition 
 in wliich they were at the time of his death. 
 
 And your orator, by way *of supplement, further represents 
 that the said D, in his lifetime, duly made and published 
 his last will and testament in writing, in such jnanner as is 
 by law required for passing real estate, bearing date, etc., and 
 thereby devised all his real estate to G H and L M, and their 
 heirs forever; as in and by the said last will and testament, 
 reference thereto being had, will more fully appear. 
 
 And your orator further represents, that the said C D de- 
 parted this life at the time above specified, without liaving 
 altered or revoked his said will; and that tlie said G 11 and 
 L M, respectively claim to be interested in the said premises, 
 by virtue of the said will; and therefore your orator is. as he 
 is advised, entitled to the benefit of the said suit against them, 
 as being, or claiming to be so interested, and to the like relief 
 as he would have been enitled to against the said C D it he 
 were still living; and the said E F, as such heir-at-law as 
 aforesaid, at times disputes the validity of the said will. 
 
 Forasmuch, therefore, as your orator is witliont remedy in 
 the premises, except in a court of equity; and to the end that 
 the said E F, G F and L M, who are made parties defendant 
 to this bill, may be required to make full and direct answer to 
 the same, hut not under oath, the answer iinder oath heing 
 hereby waived; and that the said suit and proceedings so 
 abated as aforesaid, may stand revived against the said E I' as 
 heir-at-law as aforesaid, and be in the same plight and condi- 
 tion in which they were at the time of the deatli of the said 
 D, or that the said E F may show good cause to the 
 contrary; and that your orator may have the benefit of tlie 
 said suit and the proceedings therein against the said E F, 
 G H and L M, who claim to be respectively interested as 
 aforesaid, and such relief as, if the said D were still liv- 
 ing, he would be entitled to against him; and that your 
 orator may have such other and further relief in the prem- 
 ises as equity may require and to this honorable court shall 
 seem meet. 
 
 May it please, etc. {Praying process as in No. 118.) 
 
264 BILLS OF REVIEW. 
 
 Nature of, and when Proper — Where it Lies. 
 
 CHAPTEE XX. 
 
 BILLS OF REVIEW. 
 
 Section 1. 
 
 Natukb of, and When Proper. 
 
 2. 
 
 Parties to. 
 
 3. 
 
 Leave to File. 
 
 4. 
 
 Within What Time to be Brought. 
 
 5. 
 
 Form of Bill. 
 
 6. 
 
 Defenses to. 
 
 
 SECTION I. 
 
 NATTJEE OF, AND WHEN PEOPEE. 
 
 A bill of review is in the nature of a writ of error; and its 
 object is to procure an examination and modification or rever- 
 sal of a decree rendered upon a former bill, {a) 
 
 Where it lies. — A bill of review lies for error apparent on 
 the record, or for material evidence not known in time for use 
 at the former trial, and not discoverable by reasonable dili- 
 gence at that time;, (5) and a bill filed after a final decree in 
 
 («) Grigffs V. Gear, 3 Gilm. 2; see McDaniel v. James, 23 111. 408; Honer 
 V. Zimmerman, 45 111. 14; Gardner v. Emerson, 40 111. 296; Sevier v. 
 Magguire, 49 111. 67. 
 
 (6) Ryerson y. Eldred, 23 Mich. 537; Tat/lor v. Boardman, 25 Mich. 527; 
 Griggs v. Gear, 3 Gilm. 2; Garrett v. Moss, 22 111. 363; Getzler v. Saroni, 
 18 111. 511; Dexter v. Arnold, 5 Mason, 303; Quarrier v. Carter, 4 Hen. & 
 M. 242; Hodges v. MuUiken, 1 Bland, 503; St. Clair v. Piatt, Wright, 532; 
 Massie v. Graham, 3 McLean, 41; Jenkins v. Prewitt, 7 Blackf. 329; Ste- 
 vens v. Hey. 15 Ohio, 313; Greenleaf v. McDowell, 4 Ired. Eq. R. 481; 
 James v. Fisk, 9 Smedes & M. 144; Kennedy v. Georgia State Bank, 8 
 How. U. S. 586; United States v. Sampeyas, 1 Hemp. 118; Wiser v. 
 Blachley, 2 Johns. Ch. R. 488; Hollingsworth v. McDonald, 2 Har. & J. 
 2 ;0; Simms v. Thompson, 1 Dev. Ch. 197; Burn v. Poang, 3 Dessau. 596; 
 Bradshaw v. Garrett, 1 Porter, 47; Her v. South, S How. Miss. 276; 
 Starkev. Mercer, lb. 377; Edmundson. v. Moseby, 4 J. J. Marsh. 497; Cal- 
 ler V. Shields, 2 Stew. & Port. 417; Story's Eq. PI. § 407. 
 
BILLS OF REVIEW. 265 
 
 Nature of, and when Proper — Where it Lies. 
 
 tlie original suit between the original parties or their privies 
 in representation, to correct errors in the proceeding or the 
 decree, is a bill of review, {a) It is proper after a decree is 
 enrolled. A supplemental bill in the nature of a bill of re- 
 view, is proper before the enrollment; (I) and it has been 
 held that a decree is considered as enrolled after it is signed 
 by the chancellor, and filed by the clerk of the court, (e) 
 Upon the subject of enrollment, see Comp. Laws 1871, 
 §§5094, 5095. 
 
 A bill of review can not be supported for matter existing at 
 the time of the decree, and discovered since, without afSdavit 
 of such matter, and of its existence at the time of the decree; 
 {d) nor will it lie upon a decree rendered bj consent of the 
 parties, unless fraud or mistake is shown; (e) nor where the 
 complainant himself has dismissed the bill; {/) nor where 
 the original decree has been affirmed on a writ of error or ap- 
 peal, {g) And after the allowance of an appeal, if the appel- 
 lant neglects to prosecute it, he will be precluded from filing 
 a bill of review. (A) 
 
 On a bill of review simply for errors appearing on the face 
 of the former decree evidence will not be heard to show 
 wherein the former decree was erroneous in its findings, (i) 
 
 Matters before known as susceptible of proof, can not be 
 made the ground of a bill of this nature, {j) If a complain- 
 
 (a) Whiting v. Banh of V. S. 19 Pet. 6. 
 
 (6) Wiser v. Blackleij, 2 Johns. Ch. R. 488; Hollingsworth v. McDonald, 2 
 Har. & J. 230; Ellsey v. Lane, 2 Hen. & M. .589; Her v. Bouth, 3 How. 
 Miss. 276; see, also, Mead v. Arms, 3 Vt. 148; Furman v. Coe, C. C. E. 96. 
 Greenwich Bank v. Loomis, 2 Sandf. Ch. R. 70; Larsony. Moore, 1 Texas, 
 22; Maynard v. PereauU. 30 Mich. 160. 
 
 (c) Hollingsworth v. McDonald, 2 Har. & J. 230. 
 
 {d) Hollingsworth v. McDonald, 2 Har. & J. 230. 
 
 (e) Flagler Y. Crow, 40 ia.4U. ■ 
 
 if) Jones Y. Zollicqfer, 1 Car. L. R. 376. 
 
 {g) Straderv. Byrd, 7 Ham. 184, 1st part; Brewer v. Bowman, 3 J. J. 
 Marsh. 492; 1 Hen. & M. 13. 
 
 (h) Gilchrist v. Buie, 1 Dev. & Bat. Ch. R. 346. 
 
 (!) Burgess v. Pope, 92 111. 255. 
 
 (j) Southard y. Russell, 16 How. U. S. 571; McDaniel v. James, 23 111 
 407. 
 
266 BILLS OF REVIEW. 
 
 Nature of, and when Proper — For Error of Law. 
 
 ant goes to trial uhpl-epared, it is no ground for a bill of re- 
 view; he should ask for a continuance; {a) and a bill of re- 
 view can not be permitted after a demurrer has been allowed 
 to a former bill of review, nor after an application for leave to 
 file a bill of review has been refused; (5) nor can a bill pray- 
 ing for a review of a decree clearly erroneous, from the fact that 
 some of the parties did not answer, and were not served with 
 process, be sustained where the original bill did not contain 
 matter which would entitle the complainant to relief, (c) 
 
 It will not be granted for a mistake in the calculation of 
 costs; nor for erroneous deductions from the evidence in the 
 cause by the chancellor; nor for the discovery of new evi- 
 dence which would not overturn the evidence before in the 
 case; {d) nor where the party was prevented from proving 
 important facts by the wrong advice of his counsel, or that 
 other counsel was prevented by illness from attending the 
 trial; (e) or that the attorney employed by the complainant 
 neglected the case. The negligence of the counsel being tlie 
 same as his own negligence, {f) But if an attorney enters 
 the appearance of a party without authority, relief may be 
 granted. {g) 
 
 A bill of review concerns the original controversy only, 
 and does not cover subsequent proceedings, (h) A rehearing 
 precedes, and a bill of review follows, enrollment; but neither 
 can be had without leave. (*) 
 
 For error of law. — A bill of review, for eiTor apparent 
 upon the face of the record, must be for an error in law aris- 
 ing out of the facts admitted by the pleadings, or recited in 
 
 , (a) Cabnefi v. Anient, 1 A". K. Marsh. 459. 
 
 (b) Respass v. McClanahan, Hardin, 342. 
 
 (c) Todd V. Laughlin, 3 A. K. Marsh. 535; Todd v. Lackey, 1 Litt. 270. 
 
 (d) Younffe v. Forgey, 4 Heyw. 189. 
 
 (e) Franklin v. Wilkinson, 3 Munf. 112; Millspaugh v. McBride, 7 
 Paige, Ch. R. 509; Tripp v. Vincent, 8 Paige, Ch. R. 179. 
 
 (f) Yates V. Monroe, 18 111. 212; Smith v. Powell, 50 111. 21. 
 ig) Griggs v. Gear. 3 Gilm. 2; 2 Yeates, 546. 
 
 (h) Geis V. Green, 42 Mich. 107. 
 
 (j) Mickle V. Maxfield, 42 Mich. 304. 
 
BILLS OF REVIEW. 267 
 
 Nature of, and when Proper — For Error of Law. 
 
 the decree itself, as settled, declared or allowed by the conrt. 
 It cannot be sustained upon the ground that the court has de- 
 cided wrong upon a question of feet; (a) and it ought not to 
 be granted to an interlocutory decree; but if there be error 
 therein, it may be corrected on motion or petition, (i) Er- 
 rors of law, against which relief can be had by bill of review, 
 must be such as arise rather from obvious mistake or inad- 
 vertence, appearing on the face of the decree, or at least of 
 record, than from alleged error in the deliberate judgment of 
 the chancellor, on a debatable question of law or equitable 
 right, (c) It can not be brought upon the ground that the 
 former decree was not supported by the evidence, (d) And 
 no evidence is admissible to facts established by the original 
 decree, {e) 
 
 The error must appear on the face of the pleadings and 
 decree; for the evidence in the case at large can not be looked 
 into to ascertain whether the court misunderstood the facts.(y) 
 That is the proper province of the court upon appeal. But 
 taking the facts to be as they are stated to be on the face of the 
 decree, it must be shown that the court has erred in poiut of 
 law. (g) If therefore, the decree does not contain a statement 
 of the material facts on which it is founded, it is plain that 
 there can be no relief by a bill of review, but only by an 
 appeal or writ of error to some superior tribunal. (A) It is on 
 
 (a) Webb v. Pell, 3 Paige, Ch. R. 366; ManigauU v. Deas, 1 Bailey, 
 Ch. R. 283; Turner v. Berri/, 3 Gilm. 541; Evai7s v. Clements, 14 111. 206; 
 Garrett Y. Moss, 22 111. 363;'Fellers v. Eainey, 82 111. 114. 
 
 (6) Banks v. Anderson, 2 Hen. & M. 20; Jenkins v. EUridge, 3 Story, 
 R. 299; see Hoig v. Thrap, 84 111. 302. 
 
 (c) Caller v. SMel Is, 2 Stew. & Port. 417; Younge v. Forgeg, 4 H yw. 189. 
 
 (d) Dougherty v. Morgan, 6 Monr. 153; Whiting v. Bank of the V. S. 
 13 Pet. 6. 
 
 (e) Johnson v. D -nnel, 15 111. 100; Turner v. Berry, 3 Gilm. 641; Evans 
 V. Clements, 14 111. 206; Garrett v. Moss, 22 111. 363; Caller v. Shields, 2 
 Stew. & Port. 417; Judson v. Stephens, 75 111. 255. 
 
 (/) Story's Eq. PI. § 403; Dexter v. Arnold, 5 Mason, 303, 310; Greenwich 
 Bank v. Loom-is, 2 Sandford, 70. 
 
 {g) 2 Barb. Ch. Pr. 61; Story's Eq. PI. 403-404. 
 
 {h) Dexter Y. Arnold, 5 Mason, 311; MeVlish Y. Williams, 1 Vern. 166; 
 O'Brien v. Connor, 2 Ball & Beat. 146, 154. 
 
268 BILLS OF REVIEW. 
 
 Nature of, and when Proper — Newly Discovered Evidence. 
 
 this account that the English decrees are nsnally drawn up 
 with a special statement of, or reference to, the material 
 grounds of fact, which support the decree. 
 
 In the courts of the United States, the decrees are usually 
 general, without any such statement of facts. In England, 
 the decree embodies the substance of the bill, pleadings and 
 answers. In the courts of the United States, the decree usually 
 contains a mere reference to, the antecedent proceedings, with- 
 out embodying them. But for the purpose of examining all 
 errors of law, the bill, answers, and other proceedings, are, in 
 our practice, as much a part of the record befoi'e the court, as 
 the decree itself; for it is only by a comparison with the 
 former, that the correctness of the latter can be sustained, {a) 
 
 And it is said, that in the American courts, where the En- 
 glish practice of reciting the proceedings in the decree does not 
 prevail,, the proceedings themselves are the subject-matter of 
 revision in a bill of review, to the same extent, and in the same 
 manner, as if tliej were stated on the face of the decree, in 
 conformity with the English practice. (5) 
 
 Upon a bill of review, a court will revise, correct, or reverse 
 its own decree, for an erroneous application of the law to the 
 facts found, wiienever a court of appeals would do so for the 
 same cause, (c) 
 
 Newly discovered evidence. — x\ bill of review lies for nowly 
 discovered evidence material to the issue, if such evidence was 
 not known until after the trial of the cause, (d) The matter 
 of newly discovered evidence must be relevant, and such as 
 
 (a) Story's Eq. PL § 407; Dexter v. Arnold, 5 Mason, 311, 312: Wyatt, 
 Pr. Reg. 98; Combs v. Proud, 1 Ch. Cas. 54; Webb v. Pell, 3 Paige, Ch. 
 R. 368. 
 
 (6) Tomlinsonv. McKaig, 5 Gill, 258. 
 
 (c) Evans v. Clements, 14 111. 206; Moore v. Bracken, 27 111. 23; Briggs 
 V. Gear, 3 Gilm. 2; Raymond v. Fisher, 45 Miss. 145. 
 
 (d) Ri/erson V. ETdred, 28 Mich. 537; Dexter r. Arnold, H Mason, 303; 
 Yates v. Monroe, 13 111. 212; see Lovi v. Blewett, 1 Dev. & Bat. Ch. 108; 
 Her V. liouth, 3 H ,w. Miss. 276; Randolph v. Randolph, 1 Hen. & M. 181; 
 Respass v. McCanahan, Hardin; 312; Bowles v. South, Hardin, 451; Huff- 
 acre V. Green, 4 Heyw. 51 . 
 
BILL OP REVIEW. 269 
 
 Nature of, and when Proper — Newly Discovered Evidence. 
 
 materially affects the merits of the case; mere accumulative 
 evidence is not sufficient, (a) and the new matter must be to 
 prove what was before in issue, and not to prove a title not 
 before in issue; not to make a new case but to establish the 
 old one. (i) And unless discovered after the decree is pro- 
 nounced, it is not ground for a bill of review, (c) 
 
 A bill of review will not be allowed for alleged newly dis- 
 covered evidence, where it appears that the evidence was, or 
 might have been, by reasonable diligence, known at the hear- 
 ing of the original bill ; [d) nor because certain documentary 
 evidence, intended to be used in the original cause, was lost 
 or mislaid by the complainant's counsel, and could not be 
 found until after the heariny. (e) 
 
 The allowing of a bill of review for newly discovered evi- 
 dence rests in the sound discretion of the court. (_/ ) 
 
 (a) Taylor v. Bonrdman, 25 Mich. 527; Livingston v. Huhis, 3 Johns. 
 Ch. R. 124; Ord v. Noel, 6 Mad. 127; Blake v. Foster, 2 MoUoy, 257; Wiser 
 V. Blackley, 2 Johns. Ch. 4S8; Story's Eq. PI. § 413; Hall v. FuUerton, 69 
 111. 448; Walker v. Douglas, 89 111. 425. 
 
 ip) Dexter Y. Arnold, h Mason, 803; Youngs. Keighley, 16 Ves. 348, 
 354; Huff acre v. Green, 4 Heyw. 51; Love v. Blewetl, 1 Dev. & Bat. Ch. 
 108. 
 
 (c) Winston v. Johnson, 2 Munf. 305; McCrackiny. Finley, 1 Bibb, 455; 
 but see Caller V. Shields, 2 Stew. & Port. 417. 
 
 (d) Hodges v. MulUkin, 1 Bland, 503; Bradshaw v. Garrett, 1 Porter, 47; 
 St. Clair V. Piatt, Wright, 532; Barnes v. Dickinson, 1 Dev. Ch. R. 326; 
 Gentry v. Thornberry, 3 Dana, 500; see, ^zo,Winston v. Johnson, 2 Munf. 
 305; McCrackin v. Finley, 1 Bibb, 455; Quick v. Lilly, 2 Green, Ch. R. 
 255; Dexter v. Arnold, 5 Mason, 312, 320, 321 ; Massie v. Graham, 3 Mc- 
 Lean, 41; Jenkins v. Prewitt, 7 Blackf. 329; Stevens v. Hey, 15 Ohio, 313; 
 Hughes T. Jones, 2 M.dL.Ch. Decis. 293; Mobinson Y. Sampson, 2& Maine, 
 11; Bingham y. Dawson, Jacob, 243; Livingston v. Hnbbs, 3 Johns, Ch. 
 12'' ; Pendleton v. Fay, 3 Paige, Ch. R. £04; Ord v. Noel, 6 Mad. 127. 
 
 (e, Jones v. Pilcher, 6 Munf. 425; Speight v. Adams, 1 Freeman, Ch. 
 318. 
 
 (/) Griggs v. Gear, 3 Gilm. 2; Getzler v. Saroni, 18 111. 511; 2 Dan. Ch. 
 Pr. 1633; Story's Eq. PI. §417; Bennett v. Lee, 2 A.t\c. 528; Wilsonv. Webb, 
 2 Cox, 3; Young v. Keighly, 16 Ves. 348; Perry v. Phelips, 17 Ves. 176- 
 178; Thomas v. Harvie's Heirs, 10 Wheat. 146; Wood v. Mann, 2 Sumner, 
 316; Massiey. Grant, 3 McLean, 41; P. S M. Bank y.Dundas, 10 Ala. 
 661; Taylor v. Taylor, 1 Mac. & Gord. 405. 
 
270 BILL OF REVIEW. 
 
 Parties to. 
 
 A party who has been guilty of laohes, will not be allowed 
 to file a bill of this nature, (a) 
 
 SECTION 11. 
 
 PARTIES TO. 
 
 No persons, except the parties and their privies in represen- 
 tation, such as heirs, executors and administrators, can have a 
 bill of review, strictly so called. (5) All parties to the origi- 
 nal bill should be made parties, (c) 
 
 A bill of review may be brought by the party who obtained 
 the original decree in his own favor, if such decree was injuri- 
 ous to him. (d) But a party can notfile abill if he has no inter- 
 est in the question intended to be presented thereby, and when 
 he can not be benefited by the reversal or modification of the 
 former decree, (e) And even persons having an interest in 
 the cause, if not aggrieved by the particular errors assigned 
 in the decree, can not maintain a bill of review, however in- 
 jurious the decree may afiect the rights of third persons, (f) 
 
 Other persons in interest, and in privity of title or esta*te, 
 who are aggrieved by the decree, such as devisees, and remain- 
 der men, are entitled to maintain an original bill in the na- 
 ture of a bill of review, so far as their own interests are con- 
 cerned, (g) 
 
 A defendant may file a bill of review, {h) 
 
 (a) Rtihher Co. v. Goodyear, 9 Wallace, 805. 
 
 (6) Story's Bq. PI. § 409: Gilb. For. Rom. 184; Slingshy v. Hale, 1 Ch. 
 Gas. 122; see Turnery. Berry, 3 Gilm. 541; Michle v. Maynard, 42 Mich. 
 304. 
 
 (c) Coop. Eq. PL 95; 2 Barb. Ch. Pr. 94; Dexter v. Arnold, 5 Masqn , 
 808; Bank of U. S. v. White, 8 Pet. 252. 
 
 (d) Dexter v. Arnold, 5 Mason, 308. 
 
 " (e) Wehh V. Pell, 3 Paige, Ch. R. 368. 
 
 (/) Thomas v. Harvie's Heirs, 10 Wheat. 146; Mitf. Eq. PI. 205; Stoic's 
 Eq. PL§409. 
 
 {g) MiLf. Eq. PL 92; Wyatt, Pr. Reg. 98, 100; Turner v. Berry, 8 Gilm. 
 541; Singleton v. Singleton, 8 B. Monroe, 340. 
 
 (h) Oslorne v. Usher,.6 Bro. P. C. 20; 2 Barb. Ch. Pr. 94. 
 
BILL OP REVIEW. 271 
 
 Leave to File. 
 
 SECTION III. 
 
 LEAVE TO FILE. 
 
 According to the English practice, leave of the court must 
 be obtained before a bill of review can be filed, upon the dis- 
 covery of new matter, and which leave the court will not grant 
 without au affidavit that the new matter could not be pro- 
 duced or used by the party claiming the benefit of it, at the 
 time when the decree was made. And such affidavit must 
 state the nature of the new matter*; in order that the court 
 may exercise its judgment upon its relevancy and materi- 
 ality, (a) 
 
 , Chancery Eule 101, provides, " on filing a bill of review, or 
 other bill in the nature of a bill of review, tlie complainant 
 sliall give the like deposit, or give security to the adverse 
 party in the same amount which is or would be required on 
 an appeal from an order or decree complained of ; and no such 
 bill shall be filed, either upon discovery of new matters, or 
 otherwise, without special leave of the court first obtained, 
 nor unless the same is brought within the time allowed for 
 bringing an appeal, except upon newly discovered facts or 
 evidence, unless upon reasons satisfactory to the court." 
 
 A bill of review upon a decree made in the Supreme Court 
 is only allowable, if at all, upon leave granted in that court. (5) 
 
 Upon an application of this nature, the chancellor exercises 
 his judgment as to the propriety of interfering or meddling 
 with the decree for the cause disclosed, and grants or refuses 
 leave to file a bill of review accordingly, (e) 
 
 The court may refuse it to the party applying, and grant it 
 for the protection of the interests of others, {d) 
 
 (a) Coop. Eq. PI. 92; Mitf. Eq. PI. 84; Gilb. For. Rom. 186-188; Story's 
 Eq. PI. 412; 2 Barb. Ch. Pr. 95; see Getzler v. Saroni, 18 111. 511. 
 •, (6) Ryerson v. Eldred, 18 Mich. 490. 
 
 (c) HolUngsworth v. McDonald, 2 Har. & J. 230. 
 
 (d) Hodges v. MilUhen, 1 Bland, 511. 
 
272 BILL OF REVIEW. 
 
 Leave to File — ^Performance of Decree — Petition for. 
 
 It has been held, that leave to file a bill of review, for error 
 in law, apparent on the record, is not necessary, (a) 
 
 Performance of decree. — It is a general rule that leave to 
 file a. bill of review will not be granted unless the decree lias 
 been performed, (h) Therefore,' if the decree be for the pay- 
 ment of money, the party must pay it, or give security, 
 although it should afterward be ordered to be refunded, (c) 
 But the rule may be dispensed with under tlie circumstances 
 of each case; Thus, where the party is in execution for non- 
 payment of money under the decree, this is considered equiva- 
 lent to performance, {d) So, when a party is insolvent, {e) or 
 has given securitj' for the performance of the decree. (_/) 
 
 The construction of the rule is, that the party need only 
 perform so much of the decree as at the time of filing his b.ll 
 he is bound to perform. Whatever he is then bound to do lie 
 must do before he files his bill. But the permission to file it 
 is upon the implied engagement that the original decree shall 
 be performed. Therefore, if after the bill is filed, the period 
 arrives when the money ought to be paid, the party must ])ay 
 it, or an application to disniis the bill may be made, {g) 
 
 If a bill of review is filed without leave, it may be dismissed 
 on motion, [h) 
 
 Petition for. — The application for leave to file a bill, of 
 review should be made by petition, which should state the 
 
 (.7) Wehh V. Pell, 1 Paige, Ch. R. 564; St. Clair v. Piatt, Wright, 532; 
 and see Getzler v. Saroni, 18 111. 611. 
 
 (&) Clark V. Judge Huron Circuit, 40 Micli. 166; Wiser v. BlaeJclei/, 2 
 Johns. Ch. R. 488; Livingston v. Huhhs, 3 Johns. Ch. R. 124; see Griggs 
 v. Gear, 2 Gilm. 2; Horner v. Zimmerman, 45 111. 14. 
 
 (c) Lube's Eq. PI. 139; 2 Barb. Ch. Pr. 96. 
 
 {d) Livingston v. Huhhs, 3 Johns. Ch. R. 124; see Taylor v. Person, 2' 
 Hawks, 298. 
 
 (e) Stalling'' s Admr. v. Goodtoe's Exr. 3 Mur. 159. 
 
 (/) Id. lb.; 3 Bac. Ord.; Levil v. Darcey, 1 Ch. Cas. 42; 2 Barb. Ch. 
 Pr. 90. 
 
 {g) 2 Barb. Ch. Pr. 96; Partridge v. Ushorne, 5 Russ. 251; Welf. Eq. PI. 
 90; Gilb. For. Rom. 185. 
 
 (h) Carroll v. Parren, 1 Bland, 125; see Forman v. Stickney, 77 111. 575. 
 
BILLS OP REVIEW. 273 
 
 Leave to File — Bill of Review for Errors of Law. 
 
 nature of the suit, tlie deciree;' and the errors of law, or the 
 new matters, as the case may be, upon which the application 
 is founded, and should pray for liberty tofile-a bill of review, 
 .to bring such decree into review. If the application is 
 founded upon the discovery of new matter, the petition must 
 describe the new evidence distinctly and specifically, and state 
 when it was discovered and its bearing on the decree, (a) It 
 is not sufficient to state that the petitioner expects to prove 
 certain facts. He must state the exact evidence to est tblish 
 them. 
 
 A. petition for leave to file a bill of review, after a long de- 
 lay, will be governed by eq^iitable considerations, and leave 
 will not be granted for technical irregularities. (J) 
 
 On the hearing of such petition, aflidavits may be admitted 
 on both sides, if necessary, to explain the nature of the evi- 
 dence, (c) 
 
 No. 123. Petition for lecuoe to file a hill of review for errors 
 
 of law. 
 
 State of Michigan. 
 The Circuit Court for the County of . In Chancery. 
 
 AB, 
 
 Complainant, 
 vs. 
 CD, 
 
 Defendant. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 The petition of A E, the above named complainant, respect- 
 fully represents that on, etc., your petitioner filed his bill in 
 this honorable court, against CD, for the purpose of, etc., 
 {Here state the object cf the hill,) and praying, etc. {Here 
 state the prayer.) 
 
 And your petitioner further represents that the said C D, 
 being served with process, appeared and pnt in his answer 
 thereto; to which a replication was filed. And the said canse 
 being at issue, witnesses were thereupon examined on both 
 
 (o) Dexter v. Arnold, 5 Mason, 303. 
 (6) Johnson Y. Shepherd, 35 Mich. 115. 
 
 (c) lb ; UolUngsworth v. McDonald, 2 Har. & J. 230; 2 Barb. Ch. Pr. 95. 
 18 
 
27* BILLS OF REVIEW. 
 
 Leave-to File Bill of ReTiew Upon Discovery of New'Matter. 
 
 side«j:£|,iid "the proofs closed. And that said cause was brought 
 to a hearins; before your honor on, etc. : whereupon a decree 
 was. rendered to the following e,ffect> etc. [Here set forth the 
 substance of the decree.) (*) 
 
 And your petitioner furtlier represents, that he is advised 
 that the said decree is erroneous and ought to be reviewed 
 and reversed, and set aside for many apparent errors and im- 
 pertiections, among wliich are the following, viz. {Here set 
 forth the errors complained of.) 
 
 Pdr all which errors and imperfections in the said decree 
 appearing dn the face thereof, your petitioner iS desirous ef 
 bringing his bill of review to be relieved in the premises. 
 
 Your petitioner tlierefore prays that leave may be granted 
 ,to him to file a bill of review against the said C D, for the 
 purpose of haviTig the said decree reviewed, reversed and seit 
 aside; and that no further proceedings may be had under the 
 same. • ■ A B. 
 
 Sol. for petitioner. 
 
 The petition should be subscribed and sworn to. 
 
 No. 124. Petition for leave to file a hill of review upon 
 discovery of new matter. 
 
 , {As in the last.form, Wo. 123, to the asterisk (*) and then) 
 And your petitioner further represents, that since the ren- 
 dition of said decree, your orator has discovered new matter of 
 consequence in the said cause particularly that, etc. {Here set , 
 forth the new evideiice distinctly and specifically); which 
 new matter your petitioner did not know and could not, by 
 reasonable diligence, have known, so as to make use thereof 
 in the said cause, previous to and *t the time of the pro- 
 nouncing the said decree. That your petitioner first learned 
 bf the said newly discovered evidence about, etc. {Here state 
 when it was first discovered.) And your petitioner is advised 
 that the said new matter, etc. {Here state its hearing on the 
 decree.) 
 
 Your petitioner therefore prays that he may be at liberty to 
 iile a bill of review for the purpose of having the said decree 
 reviewed, reversed and set aside, and that no further proceed- 
 ings rhaj' be had under, the same. A B. ' 
 
 Sol. for complainant. 
 {Add affidavit.) 
 
BILLS OF REVIEW. 275 
 
 What Time to be Brought-Order to File Bill of Review— Form of Bill. 
 
 SECTION IV. 
 WITHIN WHAT TIME TO BE BEOtTGHT. 
 
 Ill England, twenty years after the pronouncing of the decree 
 is the liKiitation for a bill of review, {a) In Indiana, a bilj of 
 review filed in October, 1832, founded on newly discovered 
 ^evidence, alleged to have been discovered in the summer of 
 1828, was held to have been filed in time. (5) In that State, 
 the statute of limitations begins to run from the time of the 
 discovery of new evidence, which is five years, (c) 
 
 In Illinois, bills of review are limited, like writs of error, 
 to five years, {d) It is a general rule that a bill of review to 
 impeach a decree for fraud, will not be entertained unless 
 brought within the time allowed by statute for the suing out 
 of a writ of error, or unless some very cogent and convincing 
 reason is shown in excuse of the delay, (e) In Michigan, a 
 bill of review must be filed within the time allowed for bring- 
 ing an a,ppeal, except upon newly discovered facts or evidence, 
 unless upon reasons satisfactory to the court, {f) 
 
 No. 125,- Order for leave to file hill of review. 
 
 [Caption with title of cause, as in Ifo. 105 ante.) 
 
 This cause coming on to be heard this day, on the petition 
 of G D, the defendant, praying for leave to tile a bill of re- 
 view in this cause, and counsel for the respective parties hav- 
 ing been heard, and the court being fully advised in the 
 premises, does order that the said C I) be at liberty to file a 
 bill of review, touching the several matters in the said petition 
 mentioned, and for relief in the premises as he may be advised. 
 
 SECTION V. 
 
 FOEM OF BILL. 
 
 In a bill of review it is necessary to state the former bill, 
 and all the proceedings under it, the decree and the points in 
 
 (a) Lobe's Eq. PL 132! Coop. Eq. PL 92, 98. 
 (i) Jenkins v. Prewitt, 6 Blackf. 237. 
 
 (c) Jenkins r. Premtt, 5 BlaCkf . 7. 
 
 (d) Lyon v.. EobUns, 46 III. 276. 
 
 {«) Shan T. Sloan, 102 111. 581; Story's Eq. PL § 410. 
 (/) Chanwry Rule, 101. 
 
276 BILLS OF REVIEW. 
 
 What Time to be Brought — ^Error in Law. 
 
 which the party exhibiting the bill conceives himself ag- 
 grieved by it, and the ground of law upon which he seeks to 
 impeach it; or if it is brought upon newly discovered evi- 
 dence, the evidence must be stated distinctly and specifically, 
 and what is its bearing upon the decree sought to be im- 
 peached, {a) 
 
 The bill must either deny the justice of the demand estab- 
 lished by the decree sought to be reviewed, or tiie complain- 
 ant must allege that he has paid it and the costs, or else give 
 a sufficient reason for omitting to do so. (5) 
 
 The complainant may join in the same bill both grounds for 
 a bill of review; Ji/rst, error of law, apparent on the face of the 
 decree, and second, newly discovered evidence, (c) 
 
 The bill may simply pray that the decree may be reviewed, 
 and reversed in the points complained of, if it has not been 
 carried into execution, {d) If it has been carried into execu- 
 tion, the bill may also pray the further decree of the court to 
 put the party complaining of the former decree into the situa- 
 tion in which he would have been if that decree had not been 
 executed, {e) If the bill is brought to review the reversal of 
 a former decree, it may pray that the original decree may 
 stand, {f) 
 
 JVo. 126. BUI of review upon eri'or in law. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Your orator, A B, of, etc.. respectfully represents nntotte 
 court, that on, etc., one C D, of, etc., exhibited his original 
 bill of complaint in this honorable court, against your orator, 
 
 (a) Clark v. Judge of Huron Circuit, 40 Mich. 166; Gardners. Emmer- 
 son, 40111. 396; Turner v. Berry, 3 (riliil. 541; (?ete?«rv. Socomi.ISIU. 511; 
 Gilchrist v. Bide, 1 Dev. & Bat. Ch. 316; Story's Eq. PI. § 420; Dougherty 
 V. Morgan, 6 Monr. 151; Marvin v. Trumbull, Wright, 386; Kellomv. 
 Easley, 2 Abbot's C. C. R. 559; S. G. 1 Dillon, 281; 14 Wallace, 279. 
 
 (h) Horner Y. Zimmermin, V)\\\. 14; 2 Adam?' Eq. 418; Lube's Eq. 130. 
 
 (c) 3 Dan. Ch. Pr. 1630, note 4: Griggs v. Gear, 3 Gilm. 2. 
 
 (d) Mitf. Eq. PI. 8S, 89; Coop. Eq. PI. 95; Story's Eq. PL § 420. 
 
 (e) Id. lb. 
 
 (/) Dexter v. Arnold, 5 Mason, 308. 
 
BILL OP REVIEW. .277 
 
 What Time to be Brougbt — Discovery of New Matter. 
 
 and thereby set forth, that, etc. {Here the substance of the 
 original bill), and praying, etc. {Here set out the prayer); 
 and your orator being served with process for that purpose, 
 appeared and put in his answer to the said bill, to the effect 
 following, etc. {Here insert the substance of the answer); and 
 the said C D filed his replication to said answer; and issue 
 having been joined, and witnesses examined, and the proofs 
 closed, the said cause was brought to a hearing in this honor- 
 able court, on, etc., when a decree was rendered; by which it 
 was ordered, adjudged and decreed that, etc. {Here set forth 
 the decree.) (*) 
 
 And your orator further represents, that the said decree is 
 erroneous, and ought to be reviewed, reversed, and set aside 
 for many apparent errors and imperfections, inasmuch as it 
 appears by your orator's answer, among which are the follow- 
 ing: {Here insert the apparent errors); and no proof being 
 made thereof, no decree ought to have been made or grounded 
 thereon, but the said bill ought to have been dismissed, for the 
 reasons aforesaid. For all which errors and imperfections in 
 the said decree, appearing upon the face thereof, your orator 
 has brought this his bill of review, to be relieved in the prem- 
 ises. 
 
 Forasmuch, therefore, as your orator is without remedy in 
 the premises, except in a court of equity; and to the end that 
 the said C D, who is made party defendant to this bill, may be 
 required to make full and direct answer to the same, but not 
 under oath, the answer under oath being hereby waived; and 
 that the said decree may be reviewed, reversed and set aside, 
 and no further proceedings taken thereon; and that your ora- 
 tor may have such other and further relief in the premises as 
 equity may require and to this honorable court shall seem 
 meet. 
 
 May it please, etc. {Praying process as in iVb. 118.) 
 
 Mo. 127. Bill of review on discovery of new matter. 
 
 {Asin thelast form, Wo. 126, to the asterisk (*), and then) 
 And your orator further represents, by leave of this honorable 
 court first had and obtained for that purpose, that since the 
 rendition of the said decree, your orator has discovered new 
 matter of consequence and material in said cause, particularly 
 that, etc. {Here set forth the new matter discovered); which 
 new matter your orator did not know, and could not, by rea- 
 sonable diligence have known, so as to make use thereof in 
 the said cause, previous to and at the time of the hearing and 
 
278 BILL OF REVIEW. 
 
 Affidavit on Discovery of New Matter — Defenses to. 
 
 the pronouncing of the said decree; and that your orator first 
 learned of the existence of the said newly discovered evidence 
 about, etc. {Here give the date of the disooveiy as near as 
 may he); and your orator is advised that the said new matter, 
 etc. {Here state its hearing upon the decree.) 
 
 And your orator further represents, that he is advised and 
 insists that under the circumstances aforesaid, the said decree 
 in consequence of the discovery of such new matter as afore- 
 said, ought to be reviewed and reversed. 
 
 Forasmuch, therefore, as your orator is without remedy in 
 the premises, except in a court of equity,' and to the end that 
 |he said D, who is made a party defendant to this bill, may 
 be required to make full and direct answer to the same, hut 
 not under oath, the answer under oath heing herehy wai/oed; 
 and that the said decree and all proceedings thereon may be 
 reviewed and reversed, and no further proceedings taken 
 thereon; and that your orator may have such other and further 
 relief in the premises as equity may require, and to this hon- 
 orable court may seern meet. 
 
 May it please, etc. {Praying ^process as in No. 118.) 
 
 {Add affidavit as follows:) 
 
 No. 128. Affidavit to a hill of review on discovery of new 
 
 matter. 
 
 State or Michigan, ) 
 
 County of j ■" 
 
 A B, of, etc., the complainant in the foregoing bill of com- 
 plaint, on oath, says, that he has heard the same read, and 
 understands the contents thereof; and that the matters set forth 
 therein as new matters, are true in substance and in fact; that 
 they were first discovered by this affiant since the rendition of 
 the decree in the foregoing bill mentioned, to wit, about the 
 time therein stated, and that the same could not possibly be 
 had, known or used at the time when said cause was heard or 
 the decree rendered. 
 
 Subscribed, etc. A B. 
 
 SECTION VI. 
 
 DEFENSES TO. 
 
 The usual mode of defense to a bill of review, founded upon 
 alleged errors apparent from the decree, is to plead the former 
 decree in bar of the suit, and to object by demurrer to the va- 
 
PILL QF REVIEW, 27J 
 
 Defenses to — Plea. 
 
 cation of the -decree,' Alleging as a groundof dernurr«?r, that 
 there is no, error irithe decree; (a) or, if the bill is brought on 
 new matter proper to be answered, the defendant must puf iu 
 an answer^ or plead there,to. (5) 
 
 Plea. — It seeius that it is not necessary to plead the former 
 decree, if snch decree is fully and fairly stated in the bill of 
 veview; (c) and the books of practice contain the forms of de- 
 murrer, only to such a bill. 
 
 Length of time is, it seems, a cause of demurrer, as if the 
 decree has been pronounced above the period of the statute of 
 limitations ; and this limita,tion is to be counted, not from tlie 
 time of the enrollment of the decree, but from the time of, 
 pronouncing it. (ct) It has beeh said that length of time mu«t 
 be pleaded to reyieW, even if .apparent upon the face of the 
 bill, that it is brought after the prescribed period ; for tjiat 
 ptherwise the complainant would not be able to. avail himself 
 of the exceptions provided in the statute for cases of disability, 
 as infancy, coverture, or tlie like..(e) But there is reason to 
 ,doubt the propriety of this doctrine ; and to hold, that a de- 
 jiinrrer will lie in such a case. If any such exception exists, 
 ,it is the duty of the complainant to set it forth in his bill of 
 review, in order to repel the objection, [f) This is also sus- 
 tained by anklogy to Original bill, {g) 
 
 A bill of review upon the discovery of new matter, is seldom 
 
 .; (n.)Coop. Eq. PI. 95;,Mitf. E;q. PI. 89; Welf. Eq. PI, 242; Gould y. Tan. 
 
 cred, 2 A.tk. 534; Dancer v. Evett, 1 Vera. 392; Smith v. Turner, 1 Vern. 
 
 273; O'Brien v. 0' Conner.; 2 Ball & B. 146. 
 
 ' (6) Lube's Eq. PI. 132; 2 Barb. Ch. Pr. 98. 
 
 - '(c) Mitf. Eq. PI. 204^ Coop. Eq. PL 21-&, 216; 2 Barb. Ch. Pr. 98; Welf. 
 
 Eq. 243; Slingshy v. Hale, 1 Ch. Cas: 122; Jonesy. Kenrick, 5 Bro. C. P. 
 
 244, 248; Barton's Sujt'in Eq. 218; Denny v. Filmer, 2 Freem. 172. 
 
 (d) Edwards v. Carroll, 2 Bro. P. C. 98 ; Smythe v. Clay, 1 Bro. C. C. 
 639, .'note. ' ' ' ,- ; 
 
 (e) Coop. Eq. PL 216 ; Mitf. Eq. PL 204, 205 ; Welf. Eq. PL 213 ; 
 Gmgor V; Molesworth, 2 Tes. 109. 
 
 (/) Welf. Eq. PL 243; Mitf. Eq. PL 205; Gregor v. Molesworth, 2 Ves. 
 JOS i Edwards v. Carroll, 2 Bro. P. C. 98 ; Sherrington v. Smith, 2 Bro. P. 
 e. 62 ;. Shepherd y. Lamie, 6 Munf. 529. 
 
 (ei) Cook V. Arnham, 3 P. Wms. 284 ; Foster v. Hodgson, 19 Ves. 180.' 
 
283 BILL OF REVIEW. 
 
 Defenses to — Demurrer. 
 
 liable to demurrer, for being exhibited only by leave of the 
 court, the ground of the bill is generally well considered before 
 it is filed ; and, therefore, in point of substance, it can rarely 
 be liable to a demurrer, (a) Yet even in such case demurrer 
 seems to lie to review for new matter not relevant, though the 
 relevancy ought to be considered when leave is given to file 
 the bill, (b) 
 
 If a demurrer to a bill of review has been sustained, it may 
 be pleaded to a new bill on the same grounds, being an eflect- 
 ual bar to another bill of review, (c) 
 
 When anything out of the decree, as length of time, pur- 
 chase for a valuable consideration, or any other matter, is to 
 be off'ered against the opening of the decree, that matter must 
 be pleaded, (d) 
 
 A bill of review upon the discovery of new matter seems 
 liable to any plea, which would have avoided the effect of 
 that matter if charged in the original bill. And a plea lies to 
 the fact of the discovery of new matter, (e) This has been 
 doubted, but the doubt does not seem to be well founded; for 
 if the fact of discover}' is in issue in the cause, it ought to be 
 proved, to entitle the complainant to demand the judgment 
 of the court on the matter alleged as ground for reviewing the 
 decree; and it may consequently be disproved by evidence on 
 the part of the defendant, (y) 
 
 Demurrer. — The regular defense to a bill of review for 
 errors of law apparent, being, as already stat«d, to plead the 
 decree in bar to the new suit, and demur to the opening of the 
 decree, on the ground that the errors assigned are not such as 
 
 [a) Welf. Eq. PL 243 ; Mitf. Eq. PL 204. 
 
 (6) Llewellen v. MackwoHh, 2 Atk. 40 ; Mitf. Eq. PL 205 ; Coop. Eq. 
 PL 216. 
 
 (c) D^nmj V. Filmer, 2 Ch. Gas. 138 ; PiU v. Earl of Arglass, 1 Vem, 
 441 ; Wonts v. Tucker, 2 Vem. 12). 
 
 (d) Welf. Eq. PL 244; Hartwill v. Townsend, 2 Bro. P. C. 107; Gorman 
 V. McCulloek, 5 Bro. P. C. 597; Bradish v. Gee, AmbL 229. 
 
 (e) Mitf. Eq. PL 292; Coop. Eq. PL 304. 305; Beames' PL in Eq. 307. 
 (/) Welf Eq. PL 245; Mitf. Eq. PL 292; Dexter v. Arnold, 5 Mason, 
 
 893; Lube's Eq. PL 249; 2 Barb. Ch. Pr. 96. 
 
BILL OF EEVIEW. 281 
 
 Defenses to — Answer. 
 
 to entitle the complainant to have the bill reviewed, much 
 less reversed; the first question being whether the decree 
 should be opened and reviewed. And this is argued upon the 
 demurrer, when nothing can be read but what appears upon 
 the face of the decree. If the demurrer is overruled, thei-e 
 arises a second question — whether the decree ought to -be 
 reversed/ and the complainant is at liberty to read the original 
 pleadings, or any other evidence, as at a rehearing; the cause 
 being equally open, (a) 
 
 If the bill has assigned errors at law, and the plea and 
 demurrer are allowed, an order to that effect is made, and that 
 the bill be dismissed. (5) There is then an end to the suit, 
 and no new bill will be admitted after demurrer allowed, (c) 
 
 If the demurrer or demurrer and plea are overruled, the 
 usual decree is that the original decree be reversed, and the 
 errors be allowed, {d) 
 
 On the argument of a demurrer to a bill of review, where 
 several errors in the decree have been assigned, if the com- 
 plainant should prevail only in one, the demurrer must be 
 overruled; as one error will be sufficient to open the decree. 
 And on argument of a demurrer to a bill of review for error 
 apparent in the decree, the court has ordered the defendant to 
 answer; saving the benefit of the demurrer to the hearing; 
 and on the hearing has finally allowed the demurrer, (e) 
 
 Answer. — If the bill of review is brought on new matter, 
 fitting to be answered, the defendant may put in an answer 
 controverting the fact that the matter is newly disco vered.(y) 
 
 So, if a bill is brought for newly discovered matter, and a 
 demurrer, or plea and demurrer are overruled, it i,s laid down 
 
 (ffl)2 Barb. Ch. Pr. 100; Lube's Eq. PI. 248. 
 (6) Webh^. Pell, 3 Paige, Ch. R. 368. 
 
 (c) Wools V. Tucker, 2 Vern. 120; Denny v. Filmore, 1 Vem. 135; Pitt 
 V. Earl of Ar glass, 1 Vern. 441. 
 
 (d) Cook V. Bamfield, 3 Swanst. 607. 
 
 (e) 2 Barb. Ch. Pr. 204; Mitf. Eq. PI. 204. 
 
 (/) Lube's Eq. PL 132; 2 Barb. Ch. Pr. 100; Dexttr v. Arnold, 5 Mason, 
 308. 
 
282 BILL OF REVIEW. 
 
 Defenses to — Plea to a Bill of- Revievt — Demurrer to a Bill of Review. 
 
 that the defendant mnst answer, a^ facts are in issue, (a) The 
 case will proceed upon siich a bill as upoii an Original bill.(6)' 
 
 iTo. 129. Plectftoa-hillofremey}. 
 
 {Title of court and cause.) '" "' 
 
 The plea of D, defendant, to the bill of review 
 of A B, complainant. 
 This defendant, etc. (:4s in Wo. 36 to ihehsterisk (*), and 
 then) that by the course and practice of this court no decree 
 ought to be reviewed or reversed by any original bill, or 
 otherwise than by bill of review for errors apparent in the 
 body of the decree, or upon- a new matter come to the parties' 
 knowledge after the making of such decree, and that by leave 
 of the court only; wherefor, and for that the said bill of re- 
 view does not set forth the decree truly, but alleges new and 
 foreign matters not contained in the decree, and prays procr: 
 ess generally to answer and not to review, this defendant 
 pleads tlie said decree, which is in these wor3s, to wit: {Here 
 set forth the decree verbatim) as by the said decree now re- 
 maining of record in this honorable court will appear. And 
 this defendant demands the judgment of this honorable court, 
 whether he shall be compelled to make any further or otlier 
 answer to the said bill of ,review, or any of the matters and 
 things therein contained, and prays to be hence dismissed 
 with his reasonable costs in this behalf sustained. 
 
 No. 130. Demurrer to a Mil of review. 
 
 {Title of court and cause.) 
 
 The demurrer of C D, defendant, to the bill of review 
 of A B, complainant. 
 . This defendant, etc. {As in No. 24, to the asterisk (^\ and 
 then), that by the constant rules of this court no bill of review 
 ought to be' admitted to alter or change matters decreed, only 
 for error in law appearing in the body of the decree, as it is 
 drawn up and entered, and for new matter arising since the 
 decree, or such matter of which the coniplainant in the bill of 
 review could ncit have notice at the time of the decree; but 
 this defendant is advised that the matters assigned by the said 
 
 (a) Coo^v. Brfm^einf, 3 Swanst.. 607. 
 
 (6) 2 Hoff. Pr. 12; 2 Barb. Ch. Pr. 100. , . 
 
BILL OF REVIEW. 283' 
 
 Defenses to — Demurrer to a Bill. of Review. 
 
 bill of review for cause of reversal of the said decree, as the 
 same thereby appears by the complainant's bill, are neither 
 any error in law apparent in tlie body of this decree, nor any 
 such new matter as aforesaid (but a misjudgiiient in matters 
 of form only, and not in point of right, ajid that the statement 
 contained in the said bill of review of the abatement of the 
 suit before the decree passed, is merely an exception, in point 
 of form). 
 "Wherefore, etc. {Conclude as in No. 24.) 
 
284 BILLS OF DISCOVERY. 
 
 Nature of, and when Proper. 
 
 CHAPTER XXL 
 
 BILLS OF DISCOVERY. 
 
 Section 1. Nature op, and when Pkopbr/, 
 
 2. Frame and Form of. 
 
 3. Defenses to. 
 
 SECTION I. 
 
 NATUEE OF, AND WHEN PEOPEE. 
 
 Every bill praying relief is, in reality, a bill of discovery, 
 when it asks from the defendant an answer under oath or 
 otherwise, as to all and singular the matters charged in the 
 bill, and seeks from hira a discovery of all such matters, [a] 
 But the kind of bills usually distinguished by that title, is a 
 bill for the discovery of facts resting in the knowledge of the 
 defendant, or of deeds, or writings, or other things in his cus- 
 tody or power, and seeking no relief in consequence of the 
 discovery, although it may pray for the stay of proceedings at 
 law till the discovery is made. (5) 
 
 Since the passage of laws in most of the States, providing 
 that persons interested in the result of the suit shall not be 
 disqualified as witnesses by reason thereof, a resort to bills of 
 discovery is seldom necessary. Furthermore, it has been de- 
 cided by the Supreme Court of Michigan, that a bill of dis- 
 covery can no longer be filed in this State, (e) Yery little 
 space will, therefore, be here occupied in considering bills of 
 this nature. If the student desires to pursue the subject more 
 
 (a) Story's Eq. PI. §311; 2 Story's Eq. Juris. §§ 689, 1483; Mitf. Eq. PI. 
 53; Coop. Eq. PI. 58; 2 Barb. Ch. Pr. 101; Barton's Suit in Eq. 74. 
 
 {VjRunsell V. Clark, 7 Cianch, 69; Duncan v. Ingles, Breese, 277; Tates 
 V. Monroe, la 111. 212; Shotwell v. Smith, 20 N. J. Eq. 79. 
 
 (c) Eiopelle v. Doellner, 26 Mich. 102; Sheldon v.Walbridge, 44 Mich. 251. 
 
BI^iLS OF DISCOVERY. 285 
 
 Nature of, and when Proper. 
 
 at lengtli, see Hare on Discovery, 2 Story's Equity Jurispru- 
 dence, Chap. 41, and other elementary works. 
 
 A bill of discovery is resorted to when the evidence rests 
 exclusively with tlie party called upon to disclose it. If there 
 be other evidence, such a bill can not be sustained; and the 
 complainant in the bill mast aver and swear tliat the facts are 
 known to no other person, (a) 
 
 The theory and basis of a bill of discovery in equity, in aid 
 of a defense in another suit, is that the court in which such 
 otiier suit is pending, has no means of compelling a discovery 
 from the plaintiff therein, of facts material to the defense. (5) 
 
 The defendant should file his bill of discovery before judg- 
 ment lias been rendered against him. He can not go into 
 equity for discovery, and relief against the judgment, after it 
 has been rendered, (c) 
 
 A resort to a bill of discovery is always hazardous; for if 
 a party does not come up to the facts as the complainant has 
 charged them to be, or they are denied, or toned down, the 
 answer would, in many cases, be of little avail in a defense at 
 law. {d) 
 
 A discoverj"- will not be compelled if the defendant claims 
 his privilege, and declines to answer such allegations of the 
 hill, as may have a tendency to subject him to a penalty, for- 
 feiture or criminal prosecution, (e) or would be in violation 
 of professional confidence. (/") 
 
 A party is not obliged to resort to a bill of discovery in the 
 first instance. Should he do so, and fail in obtaining the facts 
 sought, he would be precluded from filing an original bill, (g) 
 
 (a) Vemmm v. Davis, 35 111. 568. 
 (h) Healh v. Erie E. E. Co. 9 Blatchf. 816. 
 
 (c)Greeny. Massie, 21 Gratt. Va. 356; Laightx. Morgan, 1 Johns. Cas. 
 429; 2 Barb. Ch. Pr. 102, and cases tbeie cited. 
 
 [d) Venmim y. Davis, 35 111. 568; Lane v. Stehhins, 9 Paige, 622. 
 
 (e) Hayes v. Caldwell, 5 Gilm. 38; Lindslei/ v. James, SCald. Tenn. 477; 
 Northrop v. Hatch, 6 Conn. 861 ; Skinner v. Judson, 8 Conn. 528. 
 
 (/) March v. Davidson, 9 Paige, Ch. R. 580; Welf. Eq. PI. 119, 128-127; 
 United States Bank v.- Saline Bank, 1 Pet. 100. 
 {g) Venniim v. Davis, 85 111. 568. 
 
286 BILLS OF DISCOVERY. 
 
 Frame and Form of. 
 
 The question whether he is entitled to a discov^ery against a 
 person who is prosecuting him in an acition at law, can not be 
 determined nntil he has filed his plea to such action, divulging 
 the character of his defense, {a) And if the demand for dis- 
 covery is considered merely colorable, the court will refuse to 
 take jurisdiction. (5) 
 
 A court of chancery will compel a discovery in aid of a suit 
 at law, where the leading circumstances rest in the knowledge 
 of the defendant, whether the action be founded on contract 
 or tort, (c) The bill must state that the discovery sought is 
 necessary to the defense, id) If the plaintiff seeks to change 
 the forms of litigation, and prays for relief as well as discov- 
 ery, his bill must show a cause of manifest propriety in the 
 court to retain the case, (e) 
 
 Where a court of equity has obtained jiirisdiction of a 
 cause for the purpose of discovery, and the subject-matter is 
 proper for the consideration of a court of equity, it will dis- 
 pose of the case finally, although the remedy at law is fully 
 adequate had not the discovery been necessary. {/) 
 
 SECTION II. 
 
 FRAME AND FORM OF. 
 
 A bill of discovery should state the matter concerning which 
 the discovery is sought, fully and precisely, the interest of the 
 several parties in the subject, and the right of the complainant 
 to the discovery. It must also show that the discovery is ma- 
 
 (a) Harris v. Galbraith, 43 111. 309. 
 
 (6) Jones v. Bradshaw, 16 Gratt. Va. 355. 
 
 (c) Skinner V Judson, 8Conn. 528; Peckv. Ashley, 12 Met. 478; Bennett 
 v. Wolf oik, 15 Geo. 213. 
 
 {d) Howell V. Ashmore, 1 Stockt. N. J. 82; Turner v. Dickerson, lb. 
 140; Bell v. Pomeroy, 4 McLean, 57. 
 
 (e) Brown v. Edsall, 1 Stockt. N. J. 256. 
 
 (/) Chichester v. Vass, 1 Miinf. 98: Jenkins y. Green, 1 A. K. Marsh. 
 463; Lynch \. Sumrall, JA. 468; Lovey. Braxton, Wythe, 58; Traipy. 
 Gould, 15 Maine, 82; Armstrong v. Gilchrist, 2 Johns. Ch. R. 424; Haw- 
 ley V. Cramer, 4 Conn. 717; Gadsden v. Lord, 1 Dessau. 208. 
 
.BILLS OF DISCOVERY. 287 
 
 Frame and Form of— Title in Aid of a Defense to an Action of Ejectment. 
 
 terial, either to the prosecution or defense of an action which 
 has been brought, or is about to be brought at law. If the 
 bill is for discovery only, it is not necessary to aver that the 
 party can not otherwise establish his case at law; but the rule 
 is different where the bill seeks relief as an incident to the disr 
 covery. A bill of discovery, properly so called, never prays 
 any relief. Should such a bill contain a prayer for relief, a 
 demurrer would lie according to the modern English practice, 
 to the whole bill. The rule which is adopted by the Supreme 
 Court of the United States, and most of the States, and which 
 is in accordance with the old English practice, is more liberal, 
 and allows the complainant, who is entitled either to reliefer 
 discovery, the benefit of that part of his bill which is good. 
 "Where the bill seeks relief as consequent upon the discovery 
 of a bond or other evidence of title, the complainant must 
 annex an affidavit of its loss or destruction, (a) 
 
 A bill of discovery must allege, that the complainant ex- 
 pects to establish the truth of the facts alleged in the bill by 
 the discovery sought in the bill from the defendant, (b) 
 
 In a bill for discovery only the oath of the defendant can 
 not be waived as in other cases, (o) 
 
 JVo. 131. Bill of discovery to discover title in aid of a de- 
 fense to an action of ejectment.' 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Your orator, A B. of, etc., respectfully reyjresents unto the 
 court,^ tliat, etc. {Here set forth the matter concerning which 
 the discovery is sought fully and concisely, the interests of 
 the several parties in the subject, and the complainant'' s 
 right to the discovery}^ 
 
 Forasmuch, therelore, as your orator is without remedy in 
 the premises, except in a court of equity; and to the end that 
 
 (a) Barton's Suit in Eq..74, 75; 2Barb.Ch. Pr. 104, 105; Murchy. David- 
 son, 9 Paige, Ch. R. 680; Story's Eq. PI. § 317-320. 
 (h) Primmer v. Patten, 32 111. 628; Zoll v. Campbell, 3 W. Va. 226. 
 (c) Cdmp. L. 1871, § 6067. 
 
283 BILLS OF DISCOVERY. 
 
 Frame and Form of— Title in Aid of Defense to an Action for I^jectment. 
 
 the said C D, who is made party defendant to this bill, may 
 upon his corporal oath full, true, direct and perfect answer 
 make to all and singular the matter aforesaid, and more espe- 
 cially that he may answer and set forth: 
 
 I. Whether your orator is not now, and has not been, for 
 several and how many years last past, and from what time in 
 particular, seized in his demesne as of fee, or otherwise, and 
 how well entitled of, in or to the said premises hereinbefore 
 particularly mentioned and described, or some, and what part 
 thereof, or how otherwise? 
 
 II. And whether the same were not purchased by yonr or- 
 ator in the year , and when in particular, of and from tli6 
 
 said ED? 
 
 III. And whether the said premises were not duly con- 
 veyed to your orator by the said E D, by such indenture of 
 lease and release, of such date respectively as aforesaid, or by 
 some, and what other means in particular? 
 
 IV. And whether your orator did not, under and by vir- 
 tue of such conveyance to him by the said E D, enter into 
 and upon, and has not ever since been in the actual possession 
 and enjoyment of the said premises, or how otherwise? 
 
 V. And whether the said E D has not since departed this 
 life, and when? 
 
 VI. And whether the said C D did not, upon the deceaee 
 of the said E D, and by what means, obtain possession of, 
 and has not now in his custody, possession or power, all, or 
 most, or some, and which of the title deeds, evidences and 
 writings of the said E D, relating to the premises so purchas- 
 ed by your orator as aforesaid? 
 
 VII. And whether the same do not also relate to some, 
 and what other estates, or how otherwise? 
 
 VIII. And whether the said C D has not brought such 
 action of ejectment against your orator, and for such purpose 
 as hereinbefore mentioned, and does not threaten and intend 
 to proceed therein, without making any discovery of the several 
 matters aforesaid, unless he shall be restrained therefrom as 
 aforesaid, or how otherwise? 
 
 And that the said D may also discover and set forth, 
 in manner aforesaid, whether there is or are any, and what, 
 outstanding term or terms of years, or other, and what, subsist- 
 ing estate in said premises, prior to your orator's said estate 
 and interest therein, which will defeat the title of yonr orator, 
 and prevent a good defense at law to the said action, and in 
 whom the same is or are vested; and that he may also discover 
 and set forth how he makes out and derives his pretended title 
 
BILLS OF DISCOVERY. 289 
 
 Defenses to — Demurrer. 
 
 and claim to the said premises so purchased by your orator as 
 aforesaid, and the nature and particulars thereof? And that 
 the said C D m^j make a full and true disclosure and discov- 
 ery of the several matters aforesaid, to tlie end that your orator 
 may be the better enabled to defend the said ejectment; and 
 that in the meantime, and until tlie said D shall have made 
 such discovery as aforesaid, that he may be restrained, by the 
 order and injunction of this honorable court, from further 
 proceedings in the said ejectment, and all further and other 
 proceedings at law whatsoever against your orator touching 
 the several matters aforesaid, or any of them. 
 
 May it please, etc. {Prayer for subpoeiia and also for in- 
 junction.) 
 
 SECTION III. 
 
 DEFENSES TO. 
 
 Defenses to a bill of discovery may be iriade either by a 
 demurrer, a plea or an answer. If the matter relied on by 
 the defendant, constitutes a defense to the relief or purpose 
 sought by the bill, whether that relief be at law or in equity; 
 or if the defense be that the complainant has no right to equi- 
 table relief; or that neither the complainant nor defendant 
 has any interest in the subject-matter; or that the defendant 
 is a iona fide purchaser for a valuable consideration without 
 notice; or that the bill does not declare a purpose for which 
 courts of equity will compel a discovery; or that the com- 
 plainant is under some disability; in these, and in like cases, 
 though the defense extends to the entire subject of the suit, 
 it seems now settled that the objections must be taken by way 
 of plea or demurrer, {a) 
 
 And it is a general rule that, unless the defendant can spe- 
 cifically protect himself by way of demurrer or plea, accord- 
 ing to the nature of the case, he must put in an answer. (5) 
 
 Demurrer. — Where the objection appears upon the face of 
 the bill, like in all other pleadings, advantage may be taken 
 
 (a) 2 Barb. Ch. Pr. 109; Story's Eq. PI. § 465. 
 (i)Id. 
 19 
 
290 BILLS OF DISCOVERY. 
 
 Defenses to — Demurrer. 
 
 of it by demurrer. And this, whether the objection applies 
 to the wliole of the bill, or to particular discoveries only, (a) 
 Unless it appears clearly by the bill that the complainant iei 
 not entitled to the discovery he requires, or that the defend- 
 ant ought not to be compelled to jnake it, a demurrer to the 
 discovery will not hold; and the derfendant, unless he can pro-' 
 tect himself by a plea, must answer, (i) 
 
 Where the bill is for discovery and relief, the defendant may,, 
 if he pleases, demur to the relief and answer to the discovery. 
 A demurrer which is good to the relief generally, defeats the 
 recovery also, (c) But he can not demur to the discovery and 
 answer to the relief, (d) In other words, the defendant can not 
 demur to the discovery alone and not to the relief, when the 
 discovery is merely incidental to the relief ; for that would be 
 to demur, not to the thing required, but to the means by 
 which it was to he-obtained. («) -Where the discovery sought 
 is not a mere incident to the relief prayedj it is doubtful 
 whether a demurrer to, the relief only would not be bad. (f) 
 
 Where the sole object of the bill is to obtain a discovery, 
 some ground of demurrer, which, if the bill prayed relief,' 
 would extend to discovery as well as relief, will not hold. 
 Thus, a demurrer to a bill of discovery merely will not lie for 
 want of equity, or for want of parties ; for the complainant 
 seeks no decree ; nor because the bill is brought for the dis- 
 covery of part of a matter, for that is merely a demurrer be- 
 cause the discovery would be insufficient, (g) 
 
 Lord Redesdale thus classifies the causes of demurrer to a 
 bill of discovery : First, that the case made by the bill is not 
 
 (a) lb.; Welf. Eq. PL 131. 
 
 (V) Welf. Eq. PI. 131; Mitf. Eq. PI. 200; 2 Barb. Ch. Pr. 109. 
 
 (c) Hodghin v. Longden, 8 Ves. B. 3 ; Coop. Eq. PI. 117 ; 2 Barb. Ch. 
 R. 107. 
 
 (d) Welf. Eq. PI. 133 ; Morgan v. Harris, 2 Bro. C. C. 124. 
 
 (e) Deare v. Attornetj-gen. 1 Young & Col. 197 , 205, 206 ; Coop. Eq. 
 P). 117 ; Hare on Disc. 290, 292 ; Warring v. Mackreth, Forrest Ex. Rep. 
 129 ; Morgan v..Harris,-2 Bro. C. C. 124. 
 
 (/) Angel v. Angel, 1 Sim. 83, 93 ; Hare on Disc. 6 ; King v. Henri/, 9 
 Sim. 59;2Barb. Ch. Pr. 110. " 
 
 (g) Mitf. Eq. PI. 200 ; 2 Barb. Ch. Pr. 110. 
 
BILLS OF DISCOVERY. 291 
 
 Defense? to — Demurrer where Deft has no Interest — For want of Privity. 
 
 such in which a court of equity assumes a jurisdiction to com- 
 )iel a discovery. Second, that the complainant has no inter- 
 est in the subject, or no interest which entitles him to call on 
 the defendant for a discovery. Third, that the defendant has 
 no interest in the subject to entitle the complainant to insti- 
 tute a suit against him, even for the purpose of discovery. 
 Fourth, although both complainant and defendant may have 
 an interest in the subject, yet that there is not that privity of 
 title between them which gives the complainant a right to the 
 discovery required by his bill. Fifth, that the discovery, if 
 obtained, can not be material ; and, Sixth, that the situation 
 of the defendant renders it improper for a court of equity 
 to compet a discovery, {a) 
 
 N^o. 132. Demurrer to a hill of discovery, where defendant 
 has no interest. 
 
 (Title of court and cause.') 
 
 The demurrer of C D, defendant, to the bill of complaint 
 of A B, complainant. 
 
 This defendant, etc. (Proceed as in Wo. 24:, to the asterish*), 
 that the complainant has not, in and by his said bill, stated 
 or shown that this defendant has, or pretends to have, any 
 right, title or interest in the matters and things complained 
 of by the said bill, or any of them, or any right on the part 
 of the complainant to call upon this defendant in a court of 
 equity for a discovery of the said matters and things, or any 
 of them. And that for anything that appears to the contrary 
 by the said bill, this defendant may be examined as a witness 
 in this suit. 
 
 Wherefore, etc. (Conclude as in No. 24.) 
 
 No. 133. Demurrer to a hill of discovery for wani of 
 
 privity. 
 
 {Proceed as in the last form to the asterisk *,) that the 
 complainant has not, by his said bill, showu such privity of 
 title between him and this defendant, or shown any such right 
 or title as entitles him, in a court of equity, to the discovery 
 from the defendant thereby sought. 
 ""Wherefore, etc. (Conehide as in No. 24.) 
 
 (a) Mitf. Eq. PL 185 ; 2 Barb. Ch. Pr. 111. 
 
292 BILLS OF DISCOVERY. 
 
 Defenses to — Plea. 
 
 PleO/i — If the objection to a bill of discovery does not ap- 
 pear upon, the face of it, the defendant must bring it before 
 the court by plea, (a) And the grounds of , objection to dis- 
 covery which may be raised by plea are nearly the same as 
 tliose which have just been mentioned as causes of demurrer. 
 And sometimes the situation of a defendant may render it 
 improper for a court of equity to compel a discovery; because 
 it may subject him to forfeiture, or pains and penalties; or 
 criminal prosecution; or be contrary to the confidence reposed 
 in him as a counsel, attorney, or arbitrator; or because he is 
 a purchaser for a valuable consideration; without notice of 
 complainant's title. (J) 
 
 To a bill of discovery for the purpose of proceeding at law, 
 a plea of payment of the money demanded by the complain- 
 ant does not lie. (c) So, when the bill is for an injunction to 
 restrain the defendant from setting up at law an outstanding 
 term, a plea of title to tlie whole bill is bad. (d) So, to a bill 
 for a discovery of an agreement, with an allegation to prevent 
 the operation of the statute; the statute of frauds can not be 
 pleaded, (e) 
 
 A plea of want of parties, does not lie to a bill of discov- 
 ery merely. (_/) But where relief is prayed, a plea of want of 
 parties goes both to discovery and relief, {g) 
 
 No. 134. Plea to a hill of discovery that action at law Imv- 
 ing jurisdiction is pendihg, etc. 
 
 {As in Wo. 36, ante, fofhe asterish (*), then proceed^ for plea 
 to so much and such part of the complainant's bill as seeks 
 a discovery from this defendant, of etc., this defendant pleads 
 thereto and for plea says that long before the complain- 
 
 , (o) 2 Barb. Ch. PL 111. 
 
 (6) 2 Barb. Oh. Pr. 112; Mitf; Eq. PL 282j March Y.Davidson, 9 Paige, 
 Oh. R. 580; Hayes v. Caldwell, h GrWrn. 33. 
 
 (c) Hindman t. Taylor, Dick. R. 651. 
 
 (d) Gait V. Osbaldeston, 5 Mad, R. 428. 
 
 («) Mitf. Eq. PL 265-267; Cottington v. Fletcher, 2 Atk. R. 156; Welf. 
 Eq. PL 135; 2 Barb. Ch. Pr. 112. 
 (/) Mitf.Eq. PL 280; Welf. Eq. PL 134; Beamea' PI. 274. 
 [g) Id.; I'd.; Plunket v. Peuson, 2 Atk. R. 51. 
 
BILLS OF DISCOVERY. 293 
 
 Defenses to — Answer. 
 
 ant's bill was filed in this court, and on etc., the com- 
 plainant commenced a suit in the court, against this 
 
 defendant in respect of the matters as to which discovery is 
 sought by the complainant's bill, and that, such suit is still 
 depending in the said court, which, as this defendant avers, 
 is a court of competent jurisdiction to afford the discovery 
 which the complainant seeks by his said bill. Therefore, this 
 defendant pleads the same to the complainant's bill, and prays 
 the judgment of this court whether it will hold plea upon a,nd 
 enforce "this defendant to answer the complainant's said bill, 
 for the cause aforesaid. 
 
 No. 135. Plea to a bill of discovery that a discovery would 
 compel defendant to betray confidence as solicitor. 
 
 {Commence as in No. 36.) 
 
 , This defendant, etc., (as in No. 36 to the asterisk *, ) as to 
 so much of the said bill as prays that this defendant may 
 discover whethet', etc., this defendant pleads, and for plea 
 says, that this defendant has no knowledge of the matters 
 concerning which discovery is so prayed, or any of them, ex- 
 cept in and by means of the confidence reposed in this de- 
 fendant as solicitor, employed by E F in the complainant's 
 bill named. 
 
 Therefore, etc. {Gonclud^e as in No. 37.) 
 
 Answer. — If the defendant does not think proper to defend 
 himself from the discovery by demurrer or plea, he has been 
 permitted by answer, to insist that he is not obliged to make 
 the discovery, {a) In this case the complainant may except 
 to the defendant's answer as insufficient; and upon the hear- 
 ing of the exceptions it will be determined whether the de- 
 fendant is or is not bound to make the discovery. (5) 
 
 A defendant can not demur to part and answer to a part of 
 a bill of discovery; (c) as the rule is well settled, that if he 
 submits to answer, he must answer fully, [d) There is no 
 
 (a) Mitf. Eq. PI. 807;. 2 Barb. Ch. Pr. 113. 
 
 (6) Id.; Id.; 2Ves. Jr. 87. 
 
 (e) Jones V. Strafford, 3 P. Wms. R. 79; Ahrahamv. Dodgson, 2Atk. R. 
 157; Dormer\. Fortesque, 2 Atk. 282. 
 
 (d) Hare on Disc. 251; Mazareddov. Maitland, SM&d. R. 72; Portar- 
 Ungtom. Soulby, Sim. 28; Mitf. Eq. PI. 307, note h; 11 Ves. 283. 
 
294 BILLS OF DISCOVERY. 
 
 Defenses to — Practice upon, Generally, 
 
 rule, however, preventing an answer from being accompanied 
 by a plea or demurrer, (a) 
 
 An answer to a bill of discovery is entitled to no higher 
 consideration than the answer of a party's own witness upon 
 the stand, and may be controverted in the same way, although 
 he can not impeach the party answering, by showing that he 
 is unworthy of belief. (5) 
 
 The practice of allowing exceptions to answer to bills- of 
 discovery to be settled on tlie trial of the action at law prevails 
 in most of the States. If the answer is not strictly responsive, 
 exception should be taken to it on the trial, and the conrt will 
 exclade such parts of the answer as are exceptionable, (e) 
 
 The entire answer, if responsive, should be received as evi- 
 dence, and evidence sliould be given or withheld as circum- 
 stances may justify, (d) And in answering, the defendant 
 has a right to state all the circumstances connected with the 
 matter about which the discovery is sought, as well as that 
 which makes for as against him. (e) 
 
 Practice upon, generally. — The case is nfever brought to a 
 hearing upon a bill for discovery only, but as soon as the an- 
 swer is perfected,the defendant is entitled to move for costs.(_/) 
 But when the bill is for relief against several defendants, and 
 for discovery against only one, he can not make a motion for 
 his costs until the hearing. The court will not take the labor 
 of ascertaining whether . under the prayer for general relief, 
 some relief may not be given against him. {g) 
 
 The general rule is, that the complainant in a bill of discov- 
 
 (a) 2 Barb. Oh. Pr. 114. 
 
 (6) ChamUrs v. Warren, 13 Til. 318; Story's Eq. PI. § 319, note 3; 3 Litt. 
 R. 379; 8 Blackf. R. 35, 177; 8 Paige, Ch. R.S80. 
 
 (c) Chambers v. Warren, 13 111. 318; 11 Paige, Ch. R. &18; 2 Dan. Ch. 
 Pr. 392; 4 Dana, 59; 5 Ohio, 174; 3 Eng. Ark. R. 356. 
 
 (d) Chambers v. Warren, 13 111. 318; 5 Ham. 283; Fant v. Miller, 17 
 Gratt. Va. R. 187. 
 
 (e) Chambers v. Warren, 13 111. 318. 
 (/) King v. Clark, 3 Paige, Ch. R. 76. 
 (g) Attorney-general v. Birch, 4 Mad. 178. 
 
BILLS OF DISOOyERY. 295 
 
 Defenses to— Practice upon, Generally. 
 
 ery, upon oBtaining it, pays the defendant his costs, {a) And 
 costs are given against the complainant, as a matter of course, 
 if the cliarges of the bill are denied, (b) But if the complain- 
 ant, before filing his bill, asks a discovery from the defendant, 
 who refuses it, whereby the complainant is compelled to come 
 into equity, the defendant will not be allowed costs, (c) 
 
 When the answer is obtained, and the C9mplainant has se- 
 cured all the relief askedj or which the court could give, the 
 bare dissolution of the injunction — wliich must follow — is 
 equivalent to an order dismissing the bill, making a final dis- 
 position of the suit, (d) 
 
 [a) Burnett v. Sanders, 4 Johns. Ch; R. 504; McElwee v. Sutton, 1 Hill's 
 Ch. R. 34; Coop. Eq. PI. 61. 
 (6) King v. CUrh, 3 Paige, Ch. R. 76. 
 
 (c) McElwee v. Sutton, 1 Hill's Ch. R. 34; Kmg v. Clarh, 3 Paig?, Ch. 
 R. 76; Burnett v. Sanders, 4 Johns; Ch. R. 504. 
 
 (d) Yates V. Monroe, 13 111. 212; Russell v. Clarke 7 Cranch, 69; Avery 
 T. Holland, 2 Overtonj 71; Burnett r. Sanders, 8 Paige, Ch. R. 76. 
 
BILL OP INTERPLEADER. 
 
 Nature of, and when Proper. 
 
 CHAPTER XXIL 
 
 BILL OF IHTEEPLEADEE. 
 
 Section 1. Nature of, and when proper, 
 
 2. fokm of bill. 
 
 3. Defenses to. 
 
 4. Hearing and decree. 
 
 SECTION I. 
 
 NATURE OF, AND WHEN PEOPEE. 
 
 Nature of. — When two or more persons claim the same 
 fund or property in different titles, whetlier legal or equitable, 
 from another, who is in the position of an innocent stakeholder, 
 standing indifferent between them, the latter, if molested by a 
 suit actually brought, or threatened, may file his bill of inter- 
 pleader, for the purpose of compelling the claimants to litigate 
 their rights at their own expense, and thus protect himsell 
 from all vexation and responsibility, (a) 
 
 A bill of interpleader lies only where two or more persons 
 claim the same debt or duty from the complainant, by differ- 
 ent or separate interests. (5) The respective claims threaten- 
 ing complainant, must be such as to antagonize and negative 
 
 (a) Barton's Suit in Eq. 68; Story's Eq. PI. § 291; Hinde, Pr. 20; Coop. 
 Eq. PI. 43; Mitf. Eq. PI. 32; Cady v. Forter, 55 Barb. N. T. 463; MoUe^i- 
 rtj V. Hazard, 45 N, Y. 580; Bedell v. Hoffman, 2 Paige, Ch. R. 199; 
 Atkinson \.Manks,\ Cowsn, 691; Cogswell v. Armstrong, 77 111. 139; 
 Neu'hall v. Kastens, 70 111. 156; Heath v. Hurless, 73 111. 323; Sprague 
 V. Soule, 35 Mich. 35. 
 
 (6) Hayes v. Johnson, 4 Ala. 267; Green v. Mumford, 4 R. I. 313; Sher- 
 man V. Partridge, 4 Duer, 646; Adams v. Dixon, 19 Geo. 513; Farley v. 
 Blood, 10 Foster, 354. 
 
BILL OF INTERPLEADER. 297. 
 
 Nature of, and when Proper. 
 
 each other, {a) .It is proper where suits are threatened; (b) 
 but will not lie after a judgment at law on the claim in favor of 
 eitlier or both of the claimants, (c) It is sufficient if, of the 
 two adverse claims against the complainants, one of the claims 
 is legal and the other equitable, {d) 
 
 The bill must show that the complainant is a mere stake- 
 holder, having no personal interest in the controversy; (e) it 
 should not set out the facts on which the title of the claim- 
 ants respectively is based, but ought only to state in a general 
 way the nature of their claims, {f) 
 
 A party who is taxed in two different towns for the same 
 property, which is only liable to be taxed once, and where it 
 is doubtful to which town the right to tax belongs, may file a 
 bill of interpleader to compel the collectors of the tax to set- 
 tle the right between themselves, {g) 
 
 It is not necessary for the holder of the fund to file a bill 
 of interpleader, when he is already a party to a suit in chan- 
 cery, brought by one claimant against the other, to settle the 
 right to the fund. In such case, the holder of the fund 
 should apply, by petition in that suit, for leave to pay the 
 money into court, to abide the event of the litigation between 
 the other parties. (A) 
 
 To maintain a bill of interpleader the complainant must be 
 •in the possession of the goods or thing in controversy, {i) 
 
 . {n) Moore v. Barnkeisel, 45 Mich. 500. 
 
 (b) Yaiborough y. Thompson, 3 S. & M. 291; Hathaway v. Foy, 40 
 Mo. 640. 
 
 (0 Id. 
 
 (d)Schyler y. Pelissier, 3 Edw. Ch. 191; Richards v. Salter, 9 Johns. 
 Ch. R. 445; Yates v. Tisdale, 3 Edw. Ch. 71. 
 
 (e) Cady v. Porter, 55 Barb. N. Y. 463; Burton v. Black, 32 Geo. E.63; 
 Hathoway v. Foy, 40 Mo. 540; Temple v. Lawson, 19 Ark. 148. 
 
 if ) Shall) T. Coster^ 8 Paige, Ch. 339; Lazier v. VanSaun, 2 Green's Ch. 
 R. 325. 
 
 ig) M. f& H. E. R. Co. v. Clute, 4 Paige, Ch. R. 384; Thompson v. Ehheis, 
 Hopk. Ch. R. 272. 
 
 (h) ^adeau v. Rogers, 2 Paige, Ch. R. 209. 
 
 (i)2 Barb. Ch. Pr. 118; Burnett v. Anderson, 1 Mer. 405; Martin v. 
 Maherry, 1 Dev. Ch. R. 169. 
 
298 -BILL OF INTERPLEADER. 
 
 Nature of, and when Proper. 
 
 But in Connecticut it has been held that if the complainant 
 has paid over money to one of the defendants uiider a claim 
 of right to which he was obliged to submit, this would not 
 preclude him from sustaining the bill, {a) So, where a ten- 
 ant has paid rent to one of the claimants, in ignorance that 
 the title was disputed, he has been allowed to compel the par- 
 ties to interplead. (5) 
 
 A bill of interpleader will not lie if the complainant him- 
 self claims any interest in the property in dispute, (o) If or 
 where the complainant denies any liability to either of the 
 defendants, and neither admits that anything is due to one of 
 tliem, {d) nor offers to bring the amount in dispute into 
 court, (e) 
 
 It can not be sustained where thp complainant is obliged to 
 admit that, as to either of defendants, he is a wrong-doer, {f) 
 Nor where it appears, from the bill itself, that there can be no 
 doubt as to which of the defendants is entitled to the fund or 
 duty claimed. (^) Nor by a sheriff against several creditors, 
 where a controversy arises as to the application of the money 
 in his hands, derived from a sale of a debtor's property on 
 execution. {%) Nor can a shei-iff, who has seized, on execution, 
 property claimed by a stranger, file a bill against the claim- 
 ant and the parties to the suit, to settle the question of prop- 
 erty. (*) And a mere agent, having a fund in his hands, as 
 such, which is claimed by a third person, can not file a bill of 
 interpleader; but if the claimant claims title derived from the 
 principal, the bill will lie. (_/) 
 
 (a) Nash v. Smith, 6 Conn. R. 421. 
 
 (6) Jew v. Wood, 1 Craiff & Phil. 185; 2 Barb. Ch. Pr. 118. 
 
 (c) Cadi/ Y. Potter, 55 Barb. N. Y. 463; Long v. Barker, 85 III. 431; 
 Cogswell V. Armstrong, 77 111. 139; Alley v. Supervisors, 76 111. 101; Hell- 
 man V. Schneider, 75 III. 422. 
 
 {d) 45 Barb. N. Y. R. 657; 42 N. H. R. 78; 2 Story's Eq. PI. § 292. 
 
 (e) lb. ; lb. ; McGarrah v. Prather, 1 Blackf. Incl. 299. 
 
 (f) School District v. Weston, 31 Mich. 85; Shawf. Coster, 8 PaigBrCh. 
 B. 339; Quinn v. Green, 1 Ired. Ch. B. 229. 
 
 (g) M. (S; H. E. R. Co. v. Clute, 4 Paige, Ch. R. 384. 
 
 {h) 42 N. H. Rep. 78; Shaw v. Coster, 8 Paige, Ch. R. 339. 
 
 (i) Quinn v. Green, 1 Ired. Ch. R. 229; Quinn v. Patton, 2 Ired. Ch. 48. 
 
 U) Gibson V. Golthwaite, 7 Ala. R. 281. 
 
BILL OF INTERPLEADER. 299 
 
 Nature of, and when Proper. 
 
 Where the case presented by the bill of interpleader is not 
 a claim by different parties to the same fund or assets in the 
 hands of the complainant, tor which he has a right to ask them 
 to discharge him, and interplead between themselves, relief 
 will be denied, {a) And where no right to compel the defend- 
 ants to interplead, whatever rights they may claim, each de- 
 fendant may demur. (5) 
 
 To maintain a bill of interpleader, it is necessary that the 
 complainant should be uncertain to whom the right belongs, (c) 
 And it must be shown that there are persons in esse capable 
 of interpleading, and setting up opposite claims, (t?) 
 
 Bills of interpleader do not ordinarily lie, except in cases 
 of privity of some sort between all the parties — such as privity 
 of estate, or title, or contract — and where the claim is all of 
 the same nature; for where the claimants assert their rights 
 under adverse titles, and not in privity, and where their claims 
 are of different natures, the bill can not be maintained, (e) 
 Thus, a tenantliable to pay rent, may file a bill of interpleader, 
 where there are several persons claiming title to it in privity 
 of contract, or of tenure, to tompel them to ascertain to whom 
 it is properly payable, {f) But if a mere stranger should set 
 up a claim to the rent by a title paramount, and not in privity 
 of contract or tenure; or a claim of a different nature — such 
 as a claim to mesne profits in virtue of his title paramount — 
 no bill of interpleader would lie on behalf of the tenant; for 
 the debt or duty is not of the same nature, (g) 
 
 (o) Leddle v. Starr, 20 N. J. Eq. R. 274; Haseltmev. Brickey, 16Gratt. 
 Va. 116; Tyns v. Rust, 37 Geo. 574; DunaherY. Prentiss, 22 Wis. 811; 4 
 R. I. Rep. 313. 
 
 (h) Welf. Eq. PI. 152, 153; 2 Barb. Ch. Fr. 118. 
 
 (c) 2 Barb. Ch. Pr. 118; Welf. Eq. PI. 152; Bai-ton's Suit in Eq. 69! East 
 India Co. v. Edwards, 18 Ves. 377. 
 
 (d) Coop. Eq. PI. 46; Stoiy'a Eq. PI. § 295; Metcalf v. Hervey, 1 Ves. 248. 
 
 (e) Coop. Eq. PI. 48; Mitf. Eq. PI. 142; Dungey v. Angove, 2 Ves. Jr. 804. 
 (/)Welf. Eq. PI. 152; Story's Eq. PI. § 239; Lowndise v. Comfort, 18 
 
 Ves. 298; Langston v. Baylston, 2 Ves. Jr. 101. 
 
 (g) Story's Eq. PI. § 239; 2 Barb. Ch. Pr. 119; Welf. Eq. PI. 153: Clark 
 V. Byne, 13 Ves. 383, 386; Lowe v. Richardson, 3 Mad. 277. 
 
300 BILL OF.INTEEPLEADBR. 
 
 Form of Bill. 
 
 But if a person who has a legal demand for a sum of money 
 assiens his interest, the debtor may compel the assignor and 
 assignee to interplead, (a) So an auctioneer may maintain a 
 bill of interpleader between a vendor and purchaser, who both 
 claim the deposit money at a sale, he being deemed the agent 
 for both parties, {bj 
 
 Courts of equity are generally very liberal in protecting 
 mere naked trustees or stake-holders against conflicting clainjs. 
 An absolute identity in conflicting claims is not requisite to a 
 bill of interpleader; and it is not a valid objection to a bill 
 of interpleader by a trustee sued by claimants to tlie trust 
 fiind, that the complainant would be completely protected by 
 the judgments in the respective suits, by paying them in suc- 
 cession, until the fund is exhausted. A mere trustee against 
 whom two legal processes are going on at once, has tlie right 
 to insist that those who claim that to which he makes no claim, 
 should settle the contest among themselves. It is no objec- 
 tion that anotlier suit is pending in chancery, in which the 
 complainant, in a bill of interpleader, is defendant, and where 
 the pending litigation is one of the very matters complained 
 of.(c.) 
 
 SECTION II. 
 
 FORM OF BILL. 
 
 The bill must show that each of the defendant's claims are 
 right; (rf) the difliculty in which the complainant is p'aced, 
 and should offer to bring the thing claimed into court; tor if 
 it is not offered, the court, upon the application of either of 
 the defendants, will order the money or property' into court, (e) 
 
 (a) East India Co. v. Edwards, 18 Ves. R. 377. 
 
 {b) Farehrother v. Prattent, Dan. Rep. 64; 2 Barb. Ch. Pr. 119. 
 
 (c) School District v. Weston, 31 Mich. 85, and cases there cited. 
 
 {d) Welf. Eq. PL 155; 2 Bai-b. Ch. Pr. 120; Mitf. Eq. PI. 142; Martinius 
 V. Helmuth, 2 Ves. & Bea. 412. 
 
 (e) Thanet\. Pater son, Barnard, 247; Fuller v. Gibson, 2 Cox, 24; War- 
 rington V. Wheatstone, 1 Jac. R. 202; East India Co. v. Edwards, 18 Ves. 
 376; Mohawk & Hudson B. E. Co. v. Chtte, 4 Paige, Ch. R. 384; Shaw v. 
 Coster, 8 Paige, Ch. R. 339. 
 
BILL OF INTERPLEADER. 301 
 
 Form of Bill — Affidavit of Non-collusion — Bill of Interpleader. 
 
 And the want of such an oflfer is ground for demurrer. («) 
 But if the claim is for goods, it is not sufficient to offer to 
 bring the value of the goods into court. (5) 
 
 The bill prays that the defendants may interplead; that the 
 court may adjudge to whom the money or thing belongs, and 
 that the complainant may be indemnified, (c) 
 
 If the defendants have commenced, or threaten to com- 
 mence, any proceedings, except at law by ejectment, an in- 
 junction must be prayed, {d) 
 
 Affidavit of non-collusion. — A bill of interpleader must 
 not be brought in collusion with eitlier claimant; therefore 
 the complainant is always required to annex an affidavit that 
 there is no collusion betwe'en him and any of the parties. («) 
 And a want of that affidavit is clearly a cause of demurrer. (/") 
 
 The court will not determine upon counter affidavits, 
 whether the affidavit denying collusion is false. (^) But 
 where there is a suspicion of collusion, the court will direct 
 an inquiry into the circumstances. (A) 
 
 JSfo. 136. Bill of interpleader. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. , 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Your orator, A B, of, etc., respectfully represents to the 
 court, that on, etc., at, etc., your orator purchased of one C 
 D, of, etc., one of the defendants hereinafter named, two 
 
 (a) 2 Barb. Ch. Pr. 122; Mitf. Eq. PL 49; Metcalfy. Hervey, 1 Ves. 248; 
 Hyde v. Warren, 19 Ves. 321. 
 (6) Burnett y. Anderson, 1 Mer. 105. 
 
 (c) Mitf. Eq. PI. 4d; Welf. Eq. PI. 156. 
 
 (d) Metcalfx. Hervey, 1 Ves. 218; Surrey y.Waltham, 2 Anst. 539, note; 
 Jew V. Wood, 1 Craig & Phill. 185. 
 
 (e) Shuwy. Coster, 8 Paige, Ch. R. 339; Atkinson v. ManJcs, 1 Cowen, 
 691; Errington v. Attorney-general, Bumb. 303; Mitchell v. Hayne, 2, Sim. 
 & Stu. 63; Cooper v. DeTastel, 1 Taral. 177; Welf. Eq. PI. 156; Mitf. Eq. 
 PI. 49, 143; Tyns v. Bust, 37 Geo. 574. 
 
 , (/) 2 Barb. Ch. Pr. 121; Metcalfy. Heri-ey, 1 Ves. 248. 
 ig) Langston v. Boylston, 2 Ves. .Jr. 101. 
 (h) Dungey v. Angove, 2 Ves. Jr. 304. 
 
302 BILL OP INTERPLEADER. 
 
 Form of Bill — Bill of Interpleader. 
 
 horses, for which he promised to pay the said C D the sum 
 
 of dollars, and gave his notes therefor, payable to the 
 
 said C D after date; that at the time of such purchase 
 
 the said C D represen,ted, and still insists, that he was the 
 owner of said property, and had good right to sell the same 
 to yonr orator, and to accept the said notes therefor. 
 
 And your orator further represents, that afterward, on, 
 etc., one E F, of, etc., a defendant hereinafter named, made 
 known and claimed, and still insists and claims, that he, the 
 said E F, was at the time of said sale the real owner of the 
 property, and that the said C D was not the owner thereof as 
 lie pretended to your orator, but was merely the agent for the 
 said E F in making the said sale to your orator; and that the 
 said C D had no authority to take said notes in his own 
 
 name; and that the said sum of dollars was due and 
 
 payable to him, the said E F, and not to the said C D; and 
 then and there notified your orator in writing, not to pay the 
 amount of said purchase monej' to the said C D. 
 
 Your orator further represents that the said E F has com-. 
 
 menced an action at law against your orator, in the 
 
 court of the county of , to recover the purchase money 
 
 due on said property, and that the said E F is now threaten- 
 ing to bring suit against your orator, or the said promissory 
 note. 
 
 Your orator further represents that he has always been 
 willing to pay the amount of such purchase money to such 
 person or persons as should be lawfully entitled to receive the 
 same, and to whom he could pay the same in safety; and he 
 hereby offers to bring the same into court, as the court shall 
 direct. 
 
 And your orator further represents, that he does not in any 
 respect collude with either of the said named defendants, touch- 
 ing the matters in controversy in this cause; nor is he in any 
 manner indemnified by the defendants, or either of them; nor 
 has he exhibited this, his bill of interpleader, at the request of 
 the defendants, or either of them, but merely of his own free 
 will and to avoid being molested, vexed and harassed touch- 
 ing the matters contained herein. 
 
 Forasmuch, therefore, as your orator is without remedy in 
 the premises, except in a court of equity; and to the end that 
 the said C D and E F, who are made parties defendant to 
 this bill, may be required to make full and direct answers to 
 the same; and that the defendants may severally set forth to 
 
 whicli of them the said sum of does of right belong, and 
 
 is payable, and how in particular they make out their claim 
 
BILL OP INTERPLEADER. 
 
 Form of Bill— Affidavit to be Annexed. 
 
 thereto; and that the defendants may interplead, and settle and 
 adjust their said demands between themselves; yonr orator 
 being willing and desirous, and agreeing that the said sum 
 may be paid to such of them to whom the same shall, in the 
 judgment of the court, appear of right to belong; and that 
 your orator may be at liberty to bring and pay the said sum 
 
 of dollars into this honorable court, which your'orator 
 
 hereby offers to do, for the benefit of such of the defendant^ 
 who shall appear to be entitled thereto, and subject to the 
 further order of the court; and that the defendant E F, may 
 be restrained, by the injunction of this court, from proceeding 
 against your orator in the said action at law for the purcliase 
 money of said property, and that all the defendants may be 
 restrained from commencing any action or actions against your 
 orator for the recovery of the said sum of dollars, or touch- 
 ing any matters or things aforesaid; and that the said C D 
 may be decreed to deliver the said promissory note to your 
 orator to be canceled; and that yonr orator may have such 
 other and fui-ther relief in the premises as equity may require, 
 and to this honorable court shall seem meet. 
 
 May it please, etc. {Pray process and injunction, and 
 add affidavit as follows'^ 
 
 No. 137. Affidavit to be annexed to bill of interpleader. 
 
 State of Michigan, ) 
 
 County of P^* 
 
 A B, of, etc., on oath states, that he has exhibited his bill 
 of interpleader against the defendants C D and E F, named 
 in the foregoing bill, without any fraud or collusion between 
 him and the said defendants, or any or either of them; and 
 has not exhibited his said bill at the request of the said de- 
 fendants, or either of them; and further states, tliat he has ex- 
 hibited his said bill with no otlier intent but to avoid being 
 sued or molested by the said defendants, who are proceeding 
 or threaten to proceed at law for the recovery of the funds 
 mentioned in said bill. " A B. 
 
 Subscribed, etc. 
 
304 BILL OF INTERPLEADER. 
 
 Defenses to — Demurrer— For want of Affidavit of Non-collusion. 
 
 SECTION in. 
 
 DEFENSES TO. 
 
 Demurrer. — If the bill does not show a right to compel 
 the defendants to interplead, a demurrer lies. («) And if the 
 bill does not show that each of the conflicting parties claims 
 a right, both the defendants may demur; one, because the bill 
 shows no claim of right in him; the other, because the bill 
 showing no claim of right in the co-defendant, shows no cause 
 of interpleader. (5) And the want of tlie aflBdavit that there 
 is not collusion is clearly a ground for demurrer, (c) 
 
 Whenever an objection to a bill of interpleader appears 
 upon its face, such objection should be raised by demurrer. 
 For if the defendants, instead of demurring, put in an answer 
 insisting that the bill is improperly filed, they will only be 
 allowed, upon the dismissal of the bill, the costs to which tliey 
 would have been entitled upon the allowance of a demurrer, {d) 
 
 If , the controversy is concerning a sum of money, the bill 
 must oflFer to bring it into court, or it will be demurrable, {e) 
 
 No. 138. Demurrer to hill of interpleader, for want ofaffi- 
 davit of non-collusion. 
 
 (As in No. 24 to the asterisk (*) and then proceed^ that al- 
 though the complainant's said bill is on the face thereof a 
 bill of interpleader, and prays that this defendant and the 
 other defendant thereto may interplead together concerning 
 the matters therein mentioned, and may be restrained by in- 
 
 (o)Mitf. Eq. PI. 142; Welf. Eq. PI. 156; Story's Eq. PI. § 292. 
 (6) Id. lb.; 2 Story's Eq. Juris. § 821; SMw v. CosUr, 8 Paige, Ch. R. 
 339; Cochrane^. O'Brien, 2 Jones & La. T. 880. 
 
 (c) MetcalfY. Harvey, 1 Ves. 248; Shaw v. Chester, 2 Edw. Ch. R. 405; 
 Gibson V. Goldthivaite, 7 Ala. 281. 
 
 (d) Shawv. Cos/er, 8 Paige, Ch. R. 339; 2 Barb. Ch. Pr. 123. 
 (e)McGarrah v. Prather, 1 Blaokf. 299; Shaw v. Chester, 2 Edw. Ch. 
 
 405; but see Nash v. Smith, 6 Conn. 421; Coop. Eq. PI. 49; Barton's Suit 
 in Eq. 47, note 1. 
 
BILL OF INTERPLEADER. 305 
 
 Defenses to — Demurrer for not Showing any Claim of Right in Deft, etc. 
 
 junction from proceedings at law against the complainant 
 touching such matters, yet tlie complainant hasnot annexed an 
 aflidavit to his said bill that he does not collude concerning 
 such matters with any of the defendants thereto, which affida- 
 vit ought, according to the rules of this honorable court as 
 this defendant is advised, to have been made and annexed to 
 the said bill. 
 Wherefore, etc. (Conclude as in No. 24.) 
 
 No. 139. Demurrer to Mil of interpleader for not show- 
 ing wny claim of right in defendant. 
 
 (As in No. 24 ante, to the asterisTc(^) and then.) That the 
 complainant has not, in and by the said bill of interpleader, 
 shown any claim or right, title or interest whatsoever, in this 
 
 defendant, in or to the said , in the said bill particularly 
 
 mentioned and described, in respect whereof this defendant 
 ought to be compelled to interplead with the E F in the said 
 bill named, the other defendant thereto. 
 
 Wherefore, etc. (Conclude as in No. 24.) 
 
 No. 140. Demurrer to Mil of interpleader, for not showing 
 any right in complainant to compel defendants to inter- 
 plead. 
 
 (As in No. 24 ante, to the asterisk (*) and then). That the 
 complainant has not, in and by his said bill, shown anj' right 
 or title whatsoever, to compel this defendant and E F, the 
 other defendant to the said bill, to interplead. 
 
 Wherefore, etc. (Conclude as in No. 24.) 
 
 Ans^oer. — The defendant may also put in an answer ad- 
 mitting or denying the facts stated in the bill. If the defend- 
 ants, or either of them, deny the allegations in the bill, or 
 set up distinct facts in bar of the suit, the complainant must 
 reply to the answer, and close the proofs, in the usual man- 
 ner, before he can bring his cause to a hearing, (a) 
 
 If one of the defendants, in a bill of interpleader, in bis 
 answer, makes a claim against the complainant beyond the 
 amount admitted to be due and paid into court, and which is;; 
 not claimed by the other defendant, he will be permitted to 
 
 (a) 2 Barb. Ch. Pr. 123; City Bank v. BangK, 2 Paige, Ch. 570. 
 20 
 
306 BILL OF INTERPLEADER. 
 
 Defenses to — Iiq'uuction, etc. — Order for Injunction. 
 
 proceed at law to establish his right to that part of his de- 
 mand which is not in controversy with the other defendant, (a) 
 Where the facts stated in the bill are admitted in the 
 answer, and , no new facts are set up in bar of the suit, the 
 cause, upon a replication being filed, is set down for a decree 
 to interplead, before the proofs are taken as between the de- 
 fendants, and the complainant is dismissed with his costs up 
 to that time, paid out of the fund. (5) It is said, however, 
 that it is not usual for the complainant, in such cases, to file a 
 replication, although it is admissible for him to do so. (c) 
 
 Injimction, etc. — Until the complainant has brought the 
 money into court, he can not proceed corapulsorily by injunc- 
 tion, [d) The common order for an injuction upon a bill of 
 interpleader is, that it issues upon the complainant paying the 
 money into court. This- is a condition precedent, and an order 
 for an injunction not containing it will be discharged, (e) 
 
 The injunction on an interplea'Jing bill stays all proceed- 
 ings, (f) It may be moved for at once on payment of the 
 money into conrt, and before the time for answering has ex- 
 pired. (^) 
 
 JVo. 141. Order for injunction/ on hill of interpleader. 
 
 {Caption, andtitle of cause as in No. 105, ante.) 
 
 ()n filing bill of interpleader in this cause, duly verified, 
 and an affidavit of non-collusion, it is ordered that an injunc- 
 tion issue pursuant to the prayer of said bill, upon the com- 
 plainant paying into the hands of the register {or cleric) of 
 this court, the sum of dollars mentioned in the said bill. 
 
 (a) City Bank v. Bangs, 2 Paige, Ch. 570. 
 
 (b) Cily Bank v. Bangs, 3 Paige, Ch. 570; Leonard v. Jamison, 2 Edw. 
 Ch. 136. 
 
 (c) Yafes v. Tisdale, 3 Edw. Ch. 71; see Atkinsons. Manks, 1 Cow. 691. 
 {d) Surry v. Waltham, 2 Anst. 5.39, note; Meux v. Bell, 6 Sims. 175; 
 
 Mohawk ct Hudson B. R. Co. v. Clute, 4 Paige, Ch. R. 384; Shaw v. Ches- 
 ter, 2 Edw. Ch. R. 405. 
 
 (e) Sieveking v. Behrens, 2 My. & Craig, 581; Welf. Eq. PL 156; 2Barb. 
 Ch. Pr. 123. 
 
 (/) Warrington v. Wheatstone, Jacob, 205. 
 
 {g) Id; Vicary v. Widger, 1 Sim. 15. 
 
BILL OF INTERPLEADER. 307 
 
 Defenses to — Taking Bill as Confessed — Evidence. 
 
 Taking hill as confessed. — If one of the defendants does not 
 appear, the bill may be taken as confessed as to him. (a) 
 And where this is done, if such defendant is an absentee, the 
 other defendant who appears, will not be entitled to the pos- 
 session of the fund until the expiration of the time limited by 
 the statute for the absent defendant to appear; unless he 
 gives security to repay the money in case the absent defend- 
 ant appears and establishes his right. (5) 
 
 If a defendant permits a bill of interpleader to be taken as 
 confessed against him, it is an admission that, as to him, the 
 bill was properly tiled, and that he has made an improper 
 claim against the fund, (c) 
 
 "Where one of the defendants is out of the jurisdiction, the 
 complainant is bound to bring him within the jurisdiction in 
 a reasonable time; and if he omits to do so, the other defend- 
 ant is, upon indemnifying the complainant against those out 
 of the jurisdiction, entitled to the thing in dispute. If the 
 complainant has used due diligence to bring the party 'within 
 the jurisdiction, the court will not permit such party after- 
 ward to proceed at law. (^) 
 
 The court will not actively interfere to dispose of a fund, 
 except in favor of one who appears, either from proof or a^o 
 confesso, to be best entitled, (e) 
 
 Evidence. — In an interpleading suit the answer of one of 
 the defendants may be read against the other, (y) Upon the 
 hearing in such suit evidence is admissible to show that the 
 complainant has retained possession of the subject of the suit 
 under an indeiimity from some of the defendants, {g) 
 
 (a) Farebrothery. Prattent, Dan. R. 64. 
 
 (fc) 2 Barb. Ch. Pr. 123-124; Amner v. Gaunt, 2 Paige, Ch. R. 284. 
 
 (c) Badeau v. Rogers, 2 Paige, Ch. 209. 
 
 (d) Stevenson v. Anderson, 2 Ves. & Sea. 411; Welf. Eq. PI. 157. 
 
 (e) Pillow V. Aldridge, 4 Humph. 287. 
 {/) Bowyer v. Pitckard, 11 Price, 103. 
 
 ig) 2 Barb. Ch. Pr. 124 ; Statham v. Hall, Tur. & Russ. 30. 
 
308 BILL OF INTERPLEADER. 
 
 Hearmg and Decree. 
 
 SECTION V. 
 
 HEAEING AND DECREE. 
 
 The court disposes of the questions arising upon bills of 
 interpleader in various modes, according to the nature of tlie 
 question, and the manner in which it is brought before the 
 court. It has been already mentioned that if the defendants, 
 or either of them, deny the allegations in the bill, or set up 
 distinct facts in bar to the suit, the complainant must reply, 
 and close the proofs in the usual manner before hecan bring 
 his cause to a hearing. But where the defendant admits facts 
 stated in the bill, and on which the right to file such a bill 
 rests, and sets up no new facts as against the complainant, or 
 in bar of his suit, it seems to be sufficient for him to file a 
 replication, and to set the case down for a decree to interplead, 
 without waiting until the proofs are taken as between the de- 
 fendants, (a) 
 
 An interpleading bill is seldom brought to a hearing. (5) 
 
 If a cause is ripe for a decision between the defendants, as 
 well as between them and the complainant, the court settles 
 the conflicting claims of the parties, and makes a final decree 
 on the first hearing. But if it is not in readiness for a de- 
 cision as between the defendants, the court merely decides that 
 the bill is properly filed, and dismisses the complainant with 
 his costs up to that time, and directs an action to be brought, 
 or an issue, or a reference to the master, to ascertain and settle 
 the rights of the defendants to the fund in controversy, (c) 
 
 Tlie parties defendant stand before the court to litigate the 
 questions of right pending between them, to the same extent, 
 as if one had brought suit against the other, predicated upon 
 the same matter and for the same question. (cZ) And upon a 
 
 (o) Citi/ BankY. Bangs, 2 Paige, Oh. R. 570 ; Welf. Eq. PI. 157 ; 2 Baib, 
 Ch. Pr. 124. 
 
 (6) Martinius v. Helmuth, 2 Ves. & Bea. 413. 
 
 (c) Angell v. Haddmi, 16 Ves. 203; CHy Bank v. Bangs, 2 Paige, Ch. R. 
 570; Welf. Eq. PI. 157-158; 2 Barb. Ch. Pr. 124-125; Barton's Suit in 
 Eq. 69. 
 
 {d)Soi-ton V. Baptist Ch. etc., 34 Vt.'309. 
 
BILL OF INTERPLEADER. 309 
 
 Hearing and Decree — Costs. 
 
 reference to a master to settle the rights of the defendants as 
 between themselves, the court will give them the benefit of a 
 discovery as against each other, if they, or either of them de- 
 sire it. (b) 
 
 A decree that the bill of interpleader is properly filed is the 
 only decree that the complainant is interested in obtaining, (e) 
 And there must be a decree to sustain the further proceedings. 
 But if the complainant dies after decree, no bill of revivor is 
 necessary, {d) 
 
 If, after answer by both defendants, one makes default at 
 the hearing, the court will make a decree on hearing the case 
 of the defendant who appears, (e) 
 
 If a decree goes on to order a reference to a master by con- 
 sent of parties, upon principles calculated to adjust the right 
 of those called upon to interplead, it will be considered a sub- 
 stitute for the ordinary proceedings by actual interpleader, (y) 
 
 Costs. — Where a bill of interpleader is properly filed, the 
 complainant is, in general, entitled to his costs out of the 
 fund, (g) They are to be paid, in the first instance, by the 
 party entitled to the fund, but eventually by the other. (A) 
 
 Where a bill is unnecessarily filed, however, the complain- 
 ant will not be allowed his cost out of the fund, {i) He will 
 be entitled to his costs only in those cases where the bill is 
 necessarily and properly filed as against both. defendants, {j) 
 But if one of the defendants suffers the bill to be taken as con- 
 fessed against him, he will be personally charged with all the 
 costs which have been produced in consequence of his unjust 
 claim upon the fund. {Jc) 
 
 (6) City Bank v. Bangs, 2 Paige Ch. 570. 
 
 (c) Atkinson v. Manks, 1 Cow. 691. 
 
 [d] Jennings v. Nugent, 1 Moll. 134; Anon. 1 Vern. 351. 
 (c) Hodges v. Smith, 1 Cox's Ca. 357. 
 
 (/) Atkinsons. Manks, 1 Cow. 691. 
 
 {g) Aymer v. Gault, 2 Paige, Ch. R. 284; Spring t. South Carolina Ins. 
 Co. 8 Wheat. 268; Mason y. Hamilton, 5 Sim. 19; Campbell v. Solomons, 
 1 Sim. & Stu. 462; Atkinson v. Manks, 1 Cow. 691. 
 
 {h) Canfield v. Morgan, Hopk. 224; Thompson v. Ehbetts, Hopk. 272. 
 
 (0 Bedell v. Hoffman, 2 Paige, Ch. 199. 
 
 {}) Badeau v. Rogers, 2 Paige, Ch. R. 209. 
 
 (fc) Badeau, v. Eogers, 2 Paige, Ch. 209; 2 Barb. Ch. Pr. 126. 
 
310 BILL OF INTERPLEADER. 
 
 Hearing and Decree — Interlocutory Decree. 
 
 Under special circumstances, the defendants will be allowed 
 to have their costs respectively, to be dediicted from the 
 fund, {a) 
 
 No. 142. Interlocutory decree on a hill of viiterplead&r, 
 directing a reference to master. 
 
 (Caption., and title of cause as in No. 105, ante.) 
 
 This cause coming on to be heard, this day, upon the bill of 
 interpleader filed therein, the answers of the defendants, and 
 the replication thereto; and the court havin^j heard the argu- 
 ments of the counsel for the respective parties, and upon con- 
 sideration thereof, it is ordered, adjudged, and decreed, that 
 the said bill of interpleader is properly filed, and that the de- 
 fendants do interplead and settle the matters in controversyin 
 this suit between themselves; and for that purpose it is order- 
 ed, adjudged, and decreed, that it be referred to tiie master in 
 chancery of this court, to inquire and report which of the de- 
 fendants is entitled to the fund in controversy, and which has 
 been deposited with the register (or clerh) of this court. And 
 if the said master shall be of the opinion that any two or more 
 of the defendants are equitably entitled to share in the same, 
 that he also ascertain and report what portion of the fund be- 
 longs to each. And it is further ordered that previous to the 
 examination of any witnesses before the said master, either of 
 the parties may present to such master, on oath, a written 
 ^statement of his claim, and of the facts and circumstances on 
 which it is founded; which statement shall be answered on 
 oath by all the other defendants, to the satisfaction of the said 
 master, and with the like effect, as if such answer was filed to 
 a bill of discovery. And upon such reference, either party is 
 to be at liberty to summons witnesses and proceed before said 
 master in such manner as said master shall direct; and that 
 the solicitor of each defendant have notice of all proceedings 
 before the said master. And it is further ordered, adjudged, 
 and decreed, that the complainant be dismissed with his costs 
 of this suit up to this time, to be taxed, to be paid out of the 
 said fund in court. And this court reserves the consideration of 
 all questions of costs as between t]\e defendants, and all other 
 questions and directions, until the coming in of the master's 
 report; but with liberty to either party to apply for such oth- 
 er instructions or directions to the master as may be necessary 
 or proper, pending the reference, (h) 
 
 (a) Atkinson v. Manks, 1 Cow. 691; Mich. Plaster Co. v. White, 44 
 Mich. 25. 
 
 (6) See City Bank v. Bangs 2 Paige, Ch. R. 573; Seaton on Decrees, 839. 
 
PERPETUATION OF TESTIMONY. 311 
 
 Nature of Proceedings — Bill to Perpetuate Testimony. 
 
 CHAPTEE XXIII. 
 
 BILLS AND PETITIONS TO PERPETUATE TE8TIM0NT. 
 
 Section 1. Nature of the Procbedhjos 
 
 2. Frame of a Bili. to Perpetuate Testimony. 
 
 3. Defenses and Proceedings. 
 
 4. Proceedings under the Statute. 
 
 SECTION I, 
 
 NATUEE OF THE PKOCEEDINGS. 
 
 A bill to perpetuate testimony is used where there is rea- 
 son to fear that the evidence necessary to establish facts, wliich 
 will probably become the subject of controversy at a future 
 period, may become lost by the death, or absence from the 
 country of a material witness, (a) But such bills will not 
 generally be entertained for the purpose of being used upon 
 a future occasion, unless where it is absolutely necessary to 
 prevent a failure of justice, {b) If it be possible that the 
 matter in question can, by the party who files the bill, be 
 made the subject of immediate judicial investigation, no such 
 is entertained, (c) 
 
 SECTION II. 
 
 FEAME OF A BILL TO PERPETUATE TESTIMONY. 
 
 The bill should state all the material facts which are neces- 
 sary to maintain the jurisdiction. It must in the first place, 
 
 (a) Barton's Suit in Eq. 73; Story's Eq. Pl. § 300; Welf. Eq. PI. 139; 2 
 Barb. Ch. Pr. 136; 1 Coop. Eq. PI. 52; Mitf. Eq. PI. 148. 
 
 (6) Bellamy v. Jones, 8 Ves. 31 ; Shelby v. ; 13 Ves. 56; see, also, 
 
 Angell v. Angell, 1 Sim. & Stu. 89. 
 
 (c) Van Hey. Eq. Drafts. 858. 
 
312 PERPETUATION OF TESTIMONY. 
 
 Nature of Proceedings — Bill to Perpetuate TeBtimony. 
 
 state the subject-matter, touching which the complainant is 
 desirous of giving evidence, [a) Thus, for example, if the 
 object of the bill is to perpetuate the testimony of the wit- 
 nesses to a deed respecting real estate, the deed should he 
 properly described, and the names of the witnesses, who are 
 to prove the same be set forth. (5) And if the object of the 
 bill is to perpetuate the evidence of witnesses to facts in pais, 
 it is not suflBcient to state generally, that they can give evi- 
 dence as to certain facts; but the bill must state specially 
 what these facts are. (e) 
 
 The bill must show an interest on the part of the complain- 
 ant in the subject-matter sufficient to entitle him to the aid 
 of the court; for unless he has some interest, he is not entitled 
 to maintain the bill, {d) A mere expectancy, however strong, is 
 not sufficient; but the party must have a positive interest. («) 
 
 It is also indispensable to a bill of this kind, that it should 
 state that the defendant has, or pretends to have, a title, or 
 that he claims an interest to contest the title of the complain- 
 ant in the snbject-matter of the proposed testimony. (_/") For 
 unless the defendant has, or claims some such interest, it is 
 utterly fruitless to perpetuate the testimony; since it can have 
 no operation on those who are real parties in interest. 
 
 It must also be shown that there is some ground of necessity 
 for perpetuating the evidence; as that the facts to which the 
 proposed testimony relates, can not be immediately investi- 
 gated in a court of law; or if they can be so investigated, that 
 the sole right of action belongs exclusively to the other party; 
 or that the other party has interposed some impediment to 
 
 (a) Mitf. Eq. PL 51; Barton's Suit in Eq. 74; Allan v. Allan, 15 Ves. 
 130; Knight v. Knight, 4 Mad. R. 1. 
 
 (6) Story's Eq. PI. §300. 
 
 (c) Id.; Knight v. Knight, 4 Mad. R. 8, 10; 2 Barb. Ch. Pr. 137. 
 
 (rf) Coop. Eq. PI. 52; 2 Story's Eq. Juris. § 1511; Lord Dersley v. Fitz- 
 Hardinge Berkleii, 6 Ves. 251; Allan v. Allan, 15 Ves. 130. 
 
 (e) Id. lb.; 1 Fowler, Exch. Pr. 384; Mitf. Eq. PL 51; Coop. Eq. PI. 
 62-54; Sachville v. Ayhworth, 1 Vem. 105. 
 
 (/) Mitf. Eq. PL 53; Story's Eq. PL § 306; Barton's Suit in Eq. 74; Coop. 
 Eq.Pl.56; 1 Mont. Eq. PL 271; Shirley v. Ferrers, 3 P. Wms. R. 77; 
 Biandleigh v. Ord, 1 Atk.-577. 
 
PERPETUATION OF TESTIMONY. 313 
 
 Nature of Proceedings — Bill to Perpetuate Testimony.- 
 
 an imtnediate trial of the right in the suit at law, so that before 
 the investigation can take place, the evidence of a material wit- 
 ness is likely to be lost bj his death or departure from the 
 country, {a) In the former case the bill must allege that the 
 complainant is in possession of the property, or the right, 
 without any disturbance by the other party, upon which an 
 action at law can be founded. (5) In the latter case the bill 
 must allege the specific facts on which the complainant puts 
 his case; and also that the witnesses are old or infirm, or in 
 ill health, and not likely to live, (e) Without such allegations 
 the bill will be clearly demurrable, {d) 
 
 Where a bill is framed on the ground that the testimony 
 of a witness may be lost by his death or departure from the 
 country, before the ease can be investigated in a court of law, 
 it seems proper, also, in order to avoid objection, to annex to 
 it an affidavit of the circumstances by which the evidence in- 
 tepded to be perpetuated is in danger of being lost, (e) But 
 where the bill is sworn to it seems that it will be sufBcient to 
 state the circumstances in the bill; and in that case no affida- 
 vit will be necessary, {f) 
 
 The prayer of the bill requires attention. It should pray 
 leave to examine witnesses touching the matters stated, to 
 the end that their testimony may be preserved and perpetu- 
 ated, {g) It should also pray the proper process, but it should 
 not pray that the defendant may abide such order and decree 
 as the court shall think proper to make, for that will turn it 
 into a bill for relief, which is inconsistent with the nature of 
 
 (a) 1 Mitf. Eq. PL 52, 148; North v. Gray, 1 Dick. R. 14, 55; CJi. Pr. 
 531; Stoiy's Eq. PI. § 303; Angell v. Angell, 1 Sim. & Stu. 83. 
 (6) Coop. Eq. PI. 53; Wyatt, Pr. Reg. 74; Cann v. Cann, 1 P.Wras. 568. 
 
 (c) Mitf. Eq. PI. 52; Story's Eq. PI. § 303; 1 Sim. & Stu. 93; Fitzhugh 
 V. Lee, Amb. 65. , 
 
 (d) Story's Eq. PI. §803; see Pearson v. Ward, 1 Cox, 177. 
 
 (e) Marl of Suffolk v. Green, 1 Atk. R. 450; 2 Barb. Ch. Pr. 141; Mitf. 
 Eq. PI. 52, 150; Story's Eq. PI. § 304; PkiUips v. Carew, 1 P. Wms. R. 
 117; Shirley v. Ferrers, 3 P. Wms. R. 77. 
 
 (/)2Barb. Ch. Pr. 141. 
 
 {g) Mitf. Eq. PI. 51; Story's Eq. PI. § 306; 2 Barb. Ch. Pr. 141; Coop. 
 Eq. Pi. 52. 
 
314 PERPETUATION OP TESTIMONY, 
 
 Nature of Proceedings — Bill to Perpetuate Testimony. 
 
 a bill to perpetuate testimony, (a) If the bill should pray 
 relief it will be demurrable, and may be dismissed for this 
 cause, (b) 
 
 Care should be taken not to mix up in the bill matters 
 which may require very different decretal orders as to the pub- 
 lication of the testimony, otherwise it will be demurrable, (e) 
 
 JVo. 143. £ill to perpefiMte testimom/. 
 
 State of Michigan. 
 
 The Circuit Court for the county of . In Chancery. 
 
 To the Circuit Court for the county of . In Chancery. 
 
 Your orator, A B, of, etc., respectfully represents unto the 
 court, that one C D, late of, etc., was in his life-time, and at 
 the time of his death, seized in fee simple of the following de- 
 scribed real property, to wit {Here insert description): and 
 bein<r of sound mind and memory, made his last will and tes- 
 tament in writing, which was duly executed and attested by 
 E F and G H, of, etc., two credible persons, which said 
 will, with the attestation thereof, is in the words and figures 
 following, to wit {Here set forth copy of the will, etc.): as by 
 the said will, when produced in court, will more fully appear. 
 
 Your orator further represents tliat afterward, on, etc., the 
 said C D departed rhis life, without revoking or altering his 
 said will, or any part thereof; whereupon your orator by vir- 
 tue of the said will, became entitled in fee simple to all of 
 the said described premises, subject to the payment of so 
 much of the debts and funeral expenses of the said C D as 
 his persona] estate may fall short of paying; and your orator 
 accordingly, soon after the death of the said C D entered 
 into possession of the said premises, and now has the exclu- 
 sive use and control of the same, with the rents and profits 
 thereof And your orator well hoped that he and his heirs and 
 assigns, would have been permitted to enjoy the same quietly, 
 without any interruption from any person whomsoever. But 
 now so it is, may it please your honor, that E D, of, etc., the de- 
 
 («) Rose V. Gannett, 3 Atk. R. 439; Vaughan-v. Fitzgerald, 1 Sch. &Lef. 
 316; Jerome y. Jerome, 5 Conn. R. 352; Coop. Eq. PI. 62; Story's Eq. PI. 
 §306. 
 
 (6) Dalton v. Thompson, 1 Dick. R. 98; Story's Eq. PL § 306; 2 Barb. 
 Ch. Pr. 112. 
 
 (c) DewY. Chiric, 1 Sim. & Stu. R. 108; Story's Eq. PI. § 306; 2 Barb. 
 Oil. ?r. 142; Welf. Eq. PI. 146. 
 
PERPETUATION OF TESTIMONY. 315 
 
 Nature of Proceedings — Affidavit to be Attached. 
 
 fendant hereinafter named, wlio claims to be a brother and heir- 
 at-law of the said C D, pretends that the said D did not make 
 and execute sucli last will and testament in writing, or that lie 
 was not of sound mind and memory at the time of the execution 
 thereof, or tliat tlie same was not executed in the form and man- 
 ner required by;law; and tlierefore he insists that your orator has 
 uoright or title to the said premioes, or any part of the same, but 
 that on the death of the said C I) the same descended unto 
 the said E D, as heir-at-law of the said C D. "Whereas, your 
 orator charges the contrary of such pretenses to be true. Yet 
 the said £ D refuses to contest the validity of the said will 
 during the life-time of the subscribing witnesses thereto, and 
 he threatens that he will hereafter dispute the validity of the 
 said will when all the subscribing witnesses are dead, or gone 
 out of the country, whereby your orator and his heirs and as- 
 signs will be deprived of the benefit of their testimony. 
 
 Your orator further represents, that the said E F and G PI, 
 the subscribing witnesses to the said last will and testament, 
 are both aged and infirm, both being above the age of seventy 
 years, and are not likely long to live, and your orator is in 
 danger of being deprived of tlie benefit of their testimony in 
 relation to the execution of said will, and the state of the mind 
 and memory of tlie said C D deceased. 
 
 Forasmuch, therefore, as your orator is without remedy in 
 the premises, except in a court of equity; and to the end tliat 
 the said E D, who is made a party defendant to this bill, may 
 be required to make full and direct answer to the same, and 
 show why your orator should not have the testimony of the 
 said witnesses E F and G H perpetuated; and that your orator 
 may be at liberty to examine the said witnesses with respect 
 to the execution and attestation of the said will, and the sani- 
 ty of mind of the said C D at the time of tiie making of the 
 same, so that their testimony may be perpetuated and pre- 
 served. 
 
 May it please, etc. {Pray prooexs as in No. 118, ante, and 
 add affidawit, as in No. 1^\ following :) 
 
 No. 144. Affidavit to he attached to hill to perpctaafe testi- 
 mony. 
 
 State of Michigan, , 
 
 ' ^ ss. 
 
 \' 
 
 Countyof- 
 
 On this day of A. D. 18 — , before me personally- 
 
 appeared the above named A B, and made oath that he has 
 read the above and foregoing petition, subscribed by him (or 
 
316 PERPETUATION OF TESTIMONY. 
 
 Defenses and Proceedings — Demurrer. 
 
 heard it read), and knows the contents thereof; and that tlie 
 same is true of his own knowledge, except as to the mattei'S 
 which are stated therein to be on his information or belief, and 
 that as to those matters he believes it to be true. 
 
 TF G, 
 Notary Public County, Michigan. 
 
 SECTION in, 
 
 DEFENSES, AND PEOCEEDINGS. 
 
 The defense to a bill to perpetuate testimony is the same as 
 in otlier cases, by demurrer, plea or answer, according to the 
 nature of the case. To a bill to prove a will, and to perpetuate 
 testimony, the defendant may plead that he is a purchaser 
 without notice of the will, and insist that if the complainant 
 has a title,, he may immediately proceed at law. (a) 
 
 TJerryu/rr&r. — A demurrer will seldom lie to a bill of this 
 nature. (5) But if it clearly appears that the jurisdiction 
 does not arise upon the case made \>j the bill, ademnrrer will 
 hold, (e) As where specific allegations of the facts upon 
 which the complainant claims the aid of the court are not 
 made by the bill, (c?) So if a bill prays relief it will be de- 
 murrable, (e) But it has been held that where relief and 
 discovery prayed by the bill were both demurrable, the de- 
 fendant could not demur to so much of the bill as sought to 
 perpetuate testimony, (y) 
 
 If the bill contains matters which may require very differ- 
 
 (o) BecMnallY. Arnold, 1 Vem. 554; Welf. Eq. PI. 146; Beames on Pleac 
 241; 2 Barb. Ch. Pr. 142. 
 
 (6) Mitf. Bq. PI. 149; 2 Barb. Ch. Pr. 139, 142; Welf.'Eq. PI. 146; Tir- 
 rellv. Coa;, 1 Rol. Abr. 383. 
 
 (c) Mitf. Eq. PL 149, 150; 2 Barb. Ch. Pr. 142; Welf. Eq. PI. 146. 
 
 {d) Lord North v. Lady Gray, Dick. R. 14; Angell v. Angell, 1 Sim. & 
 Stu. 89. 
 
 (c) Rosev. Gannett, Atk. 439; Daltonv. Thompson, Dick. R. 98; Jerome 
 V. Jerome, 5 Conn. 352. 
 
 (/) Thorpe v. Macauley, 5 Mad. 218; ShackeU v. Macauley, 2 Sim. & 
 Stu. 79. 
 
PERPETUATION OP TESTIMONY. 317 
 
 Answer — Proceedings Under the Statute. 
 
 ent decretal orders as to the publication of the testimony, it 
 will be liable to demurrer, {a) 
 
 Answer. — An answer may be filed as in other cases. The 
 complainant compels the defendant to answer, and the suit is 
 proceeded with in the usual way, by filing a replication and 
 issuing a commission for the examination of witnesses. ( b) 
 
 If the cause should be improperly brought to a hearing, it 
 will be dismissed. But the depositions taken will still be 
 used as evidence, even though the bill is dismissed, (e) 
 
 A bill to perpetuate testimony is never brought to a hear- 
 ing, {d) 
 
 In most of the States bills to perpetuate testimony are 
 seldom resorted to at the present day. The statutes of the 
 different States have generally given a much less expensive 
 and more expeditious method of proceeding to accomplish the 
 object. 
 
 SECTION IV. 
 
 PROCEEDINGS UNDER THE STATUTE. 
 
 The statute of Michigan has provided, that " any person 
 who expects to be a party to a suit to be thereafter com- 
 menced in any court of record, may cause the testimony of 
 any witness material to him in the prosecution or defense of 
 such suit, to be taken conditionally and perpetuated." (e) In 
 order to entitle a party to thus take testimony conditionally, 
 the witness whose testimony is desired, either must live more 
 than thirty miles from the place where the apprehended suit 
 will be tried, be about to leave the State, and in all probabil- 
 ity not return at the time of the suit, or be so sick, infirm or 
 
 (o) Story's Eq. PL § 306; Vaughan v. Fitzgerald, 1 Sch. & Lef. 316. 
 {b) 1 Smith Ch. 865; Welf. Eq. PI. 147; 2 Barb. Ch. Pr. 143. 
 (c) Hall V. Huddeston, 2 P. Wms. R. 162, 163; Anon. 2 Ves. R. 497; 
 Anon. Amb. R. 237; 2 Barb. Ch. Pr. 143. 
 {d) Vaughan v. FitzgeraU, 1 Sch. & Lef. 316; 2 Barb. Ch. Pr. 148. 
 (e) Comp. L. 1871, § 5907. 
 
318 PERPETUATION OP TESTIMONY. 
 
 Proc'gs under Statute — Notice of taking Testimony — Notice, how Sen-eel. 
 
 aged, as to make it probable that he will not be able to attend 
 the trial, {a) 
 
 Notioe of taking testimony. — If the witness resides in the 
 county in which the suit is apprehended, the party desiring 
 the testimony may apply to a circuit court commissioner, or 
 to the circuit judge, who will issue a notice to the adverse 
 party or parties to appear before him, at a time and place to 
 be named by him, and put such interrogatories as he shall 
 deem fit. Or such notice may be given by the party desiring 
 the testimony, without any such direct agency of a circuit 
 court commissioner, or the judge. If the witness resides in 
 any other county of the State than that in which it is antici- 
 pated that the suit will be commenced, then the party desir- 
 ing the deposition may give botice to the adverse party to 
 " appear before any circuit court commissioner, or circuit 
 judge of any other county in this State, and put such interrog- 
 atories as he may think fit, upon tlie examination of the 
 witness. (5) " 
 
 Notice^! haw served. — The notice may be served upon tlie 
 agent or attorney of the adverse party, with the same efiTect 
 as if served upon the party himself, (c) But the safer course 
 is to serve personally upon the party, (d) 
 
 The statute provides, that the notice shall be served by deliv- 
 ering a true copy thereof to the person to be notified, or in 
 case the person to be notified is not found within the 
 county, then the notice may be served by leaving a copy 
 thereof at the place of abode of the said party to be served 
 therewith; allowing in all cases not less than twenty -four 
 hours after such -notice before the time appointed for taking 
 the depositions, and also allowing time for his travel to the 
 .place appointed, after being notified, not less than at tlie rate 
 of one day (the first day of the week excluded) for every 
 
 (a) Comp. L. 1871, §§ 5908, 5891. 
 
 (b) Comp. L. 1871, § 5892; Eslow v. Mitchell, 26 Mich. 503. 
 
 (c) Comp. L. 1871, § 5893. 
 
 (d) Campau v. Dewey, 9 Mich. 408. 
 
PERPETUATION OF TESTIMONY. 319 
 
 Proc'gs under Statute — Notice Waived — Oath to Witness — How Examined. 
 
 twenty miles, by the usually traveled route : Provided, that 
 if the distance by such route is more than two hundred and 
 forty miles, twenty days' notice (the first day of the week ex- 
 cluded) shall be sufficient, {a) 
 
 When the witness resides out of the State, and in the United 
 States or Canada, his testimony may be taken and used before 
 any of the courts of the State, in the same manner and 
 under the same regulations, as near as may be, as arc pre- 
 scribed for taking depositions of witnesses within the State. 
 But in all such cases, where the distance from the place where 
 it is anticipated that the suit will be brought, to the place ap- 
 pointed for taking the depositions shall be more than four hun- 
 dred miles by the usually traveled route, thirty days' notice, 
 served as in the preceding paragraph, is sufficient. In all oth- 
 er cases, notice may be served in like manner as stated in the 
 preceding paragraph. When the witness resides out of this 
 State and in the United States or Canada, the deposition may 
 he taken by and before any officer .authorized by the laws of 
 the place when the same may be taken to administer oaths, 
 hut in such cases a certificate under the official seal of the 
 county clerk of the county where taken, or of the clerk of tlie 
 principal court of record for said county, or some other proper 
 county officer, must be attached to the deposition, showing the 
 official capacity of the person taking the same. (5) 
 
 Notice waived. — The written notice mentioned, may be 
 wholly omitted if the adverse party or his attorney shall, in 
 writing, waive the right to it (e) 
 
 Oath to witness. — The deponent shall be sworn or affirmed 
 to testify the truth, the whole truth, and nothing bnt truth, 
 relating to the cause for which the deposition is tyken. {d) 
 
 How examined. — After the witness has been sworn he 
 
 (a) Session Laws 1879, p. 191. 
 (6) Session Laws 1879, p. 191. 
 (c)Comp. L. 1871, §5895. 
 (d) Comp. L. 1871, § 5896. 
 
320 PERPETUATION OF TESTIMONY. 
 
 Proceedings under Statute — Objections — How Certified to. 
 
 shall then be examined by the person before whom he is 
 bi'ought, and by the parties, if they think fit, and his testi- 
 mony shall be taken in writing, {a) The party producing the 
 deponent shall be allowed first to examine him, either upon 
 verbal or written interrogatories, upon all points that he shall 
 deem material, and then the adverse party may examine the 
 deponent in like manner, after which either party may pro- 
 pose such further interrogatories as the case may require. (J) 
 If the witness does not understand the English language, 
 his testimony may be taken through an interpreter, (c) The 
 deposition must be written by the person before whom the 
 same is taken, or by some disinterested person in his presence 
 and unde^r his direction, and it must be carefully read to or 
 by the deponent, and then subscribed by him; and the reading 
 can not be waived, (d) The testimony may either be taken in 
 narrative form, or by question and answer, (e) 
 
 Objections. — Every objection to the competency or credibil- 
 ity of the deponent, and to the propriety of any question put 
 to him, or of any answers made by him, may be made wlien 
 the deposition is produced, in the same manner as if the wit- 
 ness were personally examined at the trial. (_/") But all ob- 
 jections to the competency of the witness on the ground of 
 interest, shall in all cases be made at the time of taking such 
 deposition, otherwise such objection shall not be allowed, {g) 
 
 Sow certified to. — The person taking the deposition shall 
 annex thereto a certificate of the time and manner of taking 
 it, the person at whose request, and the cause, matter or suit 
 for which it was taken, and the reason for taking it, and stat- 
 ing also whether the adverse party attended, arid if not, at- 
 
 (a) Comp. L. 1871, § 5896. 
 
 (fc) Comp. L. 1871, § 5897. 
 
 (c) Campau v. Deweij, 9 Mich. 382. 
 
 {d) Comp. L. 1871, §5898 ; Godfre;/ v. While, 43 Mich. 171. 
 
 (e) Campau v. De^vey, 9 Mich. 382. 
 
 (/ ) Comp. L. 1871, § 5902 ; BUss v. Paine, 11 Mich. 92. 
 
 (?) Comi). L. 1871, §5902. 
 
PERPETUATION OP TESTIMONY. 32] 
 
 Proceedings under Statute — To Whom Delivered. 
 
 taching to the deposition the notice, if any, tha,t was served 
 upon the adverse pgircy. (a) 
 
 To whom, delivered.— TUe person taking the deposition, 
 must seal up arid deliver the same to the clerk of the county 
 wliere taken, where it shall remain sealed, until ordered to be 
 removed and opened by the court before whom such suit 
 shall be pending, when it may be used subject to any objec- 
 tion which could lie against it in case the suit had been 
 pending at the time it was taken, (b) 
 
 No deposition shall be used if it shall appear that the rea'- 
 son for taking it no longer exists. But if the party produc- 
 ing the deposition in such case shall show any sufficient cause 
 then existing for using the deposition, it may be admitted, (o) 
 
 (a) Comp. L. 1871, § 5899. 
 (fc) Comp. L. 1871, § 5908. 
 
 (cj Comp. L. 1871, § 5901; Emlaw v. Emlaw, 20 Mich. 11. 
 21 
 
322 CROSS-BILLS. 
 
 Nature of Cross-BilL 
 
 CHAPTEE XXIY. 
 
 CEOSS-BILLS. 
 
 Section 1. Nature of a Cross-bill. 
 
 2. Frame op Bill. 
 
 3. When to be Filed. 
 
 4. Process Upon. 
 
 5. Defenses to. 
 
 SECTION L 
 
 NATURE OF A CEOSS-BILL. 
 
 A cross-bill implies a bill brought by a defendant in a suit 
 against the complainant in the same suit, or against other 
 defendants in the same suit or against both, touching the 
 matters in question in the original bill (a) It is of a mixed 
 character, partaking partly of the character of an original bill, 
 and partly of that of bills not original, and is generally con- 
 sidered a defense. (5) 
 
 Whenever it is necessary to bring all the equities of all the 
 parties fully before the court, that even and complete equity 
 may be donS, as well in favor of the defendant as of the com- 
 plainant, it becomes necessary to file a cross-bill; and this 
 maj be done by any or all the defendants, against all or any 
 of the complainants, or by a defendant against his co-defend- 
 ants, or a part of them, as the nature of the case may re- 
 quire, (c) 
 
 (a) Story's Eq. PI. § 389; Welf. Eq. PI. 229; Coop Eq. PL 62; Mitf. Eq. 
 PI. 80. 
 
 (b) Newhury V. Wren, 1 Vera. 221; Piggott v. Williams, 6 Mad. 95; 
 Hilton V. Barrow, 1 Ves. Jr. 234; Parker v. Leigh, 6 Mad. 115; Welf. Eq. 
 PI. 223. 
 
 (c) Ballance v. TJnderhill, 3 Scam. 453; 1 Smith's Ch. Pr. 459; Mitf. Eq. 
 PL 75, 76; Crutchfield v. Patten, 44 Geo. 65; Gilmer v. Felhoun, 45 Miss. 
 627; Mereier v. Lewis, 39 Cal. 532; Erlinger v. Boul, 7 Bradw, 41. 
 
CROSS-BILLS. 323 
 
 Nature of Cross-Bill. 
 
 Where the defendants rely on their answer alone, they can 
 only use the equity of their case for the purpose of defense; 
 but if they wish to become the assailants, and seek affirma- 
 tive relief, they must file their cross-bill; and in this way, 
 and this alone, are they permitted to use their equity as a 
 weapon of attack, {a) 
 
 A cross-bill must be germane to the subject-matter of the 
 original bill, and no foreign matter can be introduced. (5) 
 And it can not contradict the allegations of the answer filed 
 to the original bill, (c) 
 
 A cross-bill will not be entertained if the matter of it can 
 be made available under the original bill, (d) 
 
 Whenever, in chancery, it becomes necessary to bring all 
 the rights of all parties fully before the court, so that com- 
 plete equity may be done, as well to the defendant as the 
 complainant, resort must be had to a cross-bill. And while 
 the allegations of the cross-bill must relate to the subject- 
 matter in controversy in the original bill, they are not re- 
 stricted to the issues in the original cause, (e) 
 
 Thus a cross-bill may be maintained for the purpose of ob- 
 taining an equitable set-off. (_/) 
 
 Or to establish an agreement or conveyance which the orig- 
 inal bill seeks to set aside, (g) 
 
 {a) Andrews v. Kibbe, 12 Micli. 94; Caruthe.rs v. Hall, 10 Mich. 40; 
 Wisner v. Faniham, 2 Mich., 472; Di/e v. Mann, 10 Mich. 291; Schwarz 
 V. Sears, Walk. Ch. 170; Farmers d: Mechanics Bank v. Branson, 14 
 Mich. 861; Tarleton t. Vietes, 1 Gilm. 470; Fletcher v. Wilson, 1 S. & M. 
 Ch. 876; Galatian v. Erwin, Hopk. 48. 
 
 {bi) Andrews -v. Kibbe, 12 Mich. 94; Hall v. Harrington, 41 Mich. 146; 
 Lund V. Skanes EnskiMaBank, 96 111. 181; Davis v. Am. <S; For. Christ- 
 ian Vn. 100 111. 313; Hard v. Case, 32 111. 45; Jones v. Smith, 14 111. 229; 
 Chicago Artesian Well Co. v. Conn. M. Life Ins. Co. 57 111. 424. 
 
 (c) Hudson V. Hudson, 3 Rand. 117. 
 
 (d) Brown v. Bell, 4 Hey. 287; N. Y. Dry Dock Co. v. Am. Ufe Ins. 
 Co. 3 Sandf. Ch. 273; Story's Bq. PI. § 389; Morgan v. Smith, 11 111. 195. 
 Purdy V. Henslee, 97 111. 390; Farwell v. Harding, 96 111. 32. 
 
 {e) Follansbee v. Scottish-A'm. Mort. Co., 7 Bradw. 486; Nelson v. Dunn, 
 15 Ala. 501. 
 {f)Cartwright v. Clark, 4 Mete. 104; Derby v. Gage, 38 111. 27. 
 {g) Carnochan v. Christie, 11 Wheat. 446. 
 
324 CROSS-BILLS. 
 
 Nature of Cross-Bill. 
 
 Or to compel the surrender or cancellation of a contract 
 which the original bill seeks to specifically enforce, (a) 
 
 Or to set aside a void judgment, when the enforcement of 
 such judgment is the subject-matter of the original bill. (l>) 
 
 And the fact that there may be a remedy at law, does not 
 oust a court of equity of its jurisdiction, (c) 
 
 If, however, a bill is for a certain purpose, the defendant 
 can not, by any cross-bill, bring into litigation in that suit all 
 causes of action which he may have against the complainant, 
 unless there exist some special circumstances, snch as insol- 
 vency, non-residence, etc., which would render it necessary in 
 order to avoid irreparable injury. Thus, if a bill is filed for 
 specific performance of a contract for land, the defendant can 
 not, by way of cross-bill, bring into litigation a fraud prac- 
 ticed on him by the complainant in trading horses, or a debt 
 due by the complainant, unconnected with the conti'act con- 
 cerning the land sought to be enforced. The cross-bill must 
 relate exclusively to the subject-matter of the original bill, 
 and things connected therewith, and foreign matters can not 
 be introduced, unless under special circumstances, [d) 
 
 The necessity of a cross-bill for relief occurs, when the de- 
 fendant seeks relief in reference to the subject-matter of the 
 original bill; as he can only obtain afiirmative relief in that 
 way. (e) And if the matter of defense arises after the cause 
 is at issue, or that the complainant has given a release, or 
 that there has been an award made on a reference after issue 
 
 (a) Crosse y. DeValle, 1 Wall. 5. 
 
 (b) Jones v. Smith, 14 111. 239; Hard v. Case, 32 III. 45. 
 
 (c)Ib.; Babcoch v. McCamant, 53 III. 215; Robins v. Swain, 68 111. 197. 
 
 {d)Jossey v. Rogers, 13 Geo. 478; May v. Armstrong, 3 J. J. Marsh. 
 260; Horner v. Hanhs, 22 Ark. 572; Fletcher v. Wilson, 1 Smedes & 
 Marsh. Ch. 376. 
 
 (e) rary v. Shea, 33 Mich. 3S3; TarUton v. Vietes, 1 Glim. 470; Bal- 
 lance v. Underhill, 3 Soam. 453; Atkin v. Merrell, 39 111. 63; Stone v. 
 Smoot, 39 111. 409; McCagg v. Heacock, 42 111. 153; Hannav. Ratekin, 43 
 111. 462; Croskey v. Northern Manuf. Co. 48 111. 481; Tittsworth v. Stout, 
 49 111. 78; Hotvett v. Selhj, 54 111. 151; Carnochan v. Christie, 11 Wheat. 
 446; Cullum v. Erwin, 4 Ala. 452; Cloud v. Hamilton, 3 Yerg. 81; 
 Schwarz v. Sears, Walk. Ch. 170. 
 
CROSS-BILLS. 325 
 
 Frame of Bill. 
 
 joined, which at law may be pleaded jpuis darrein contin- 
 uance; a defendant can not avail himself of either, by plea or 
 answer, and therefore must resort to a cross-bill, (a) 
 
 In a suit to enforce a claim of dower in lands against pne 
 holding the legal title, the defendant can not obtain affirma- 
 tive relief upon an equitable lien upon tlie premise, except 
 by means of a cross-bill. {/>) 
 
 A cross-bill is generally considered a defense; (c) and tlie 
 original cause and the cross-bill are but one cause, (d) It is 
 so effectually a defense, that if a cross-bill is taken as con- 
 fessed, it may be used as evidence against the complainant in 
 the original suit, on the hearing; and will have the same 
 effect as if he had admitted the facts in an answer. («) 
 
 New parties may be brought in by cross- bill, who were not 
 parties to the original bill. {/) But persons not made parties 
 defendants in tlie original bill have no right to file a cross-bill; 
 but where one is filed without objection by the complainant, 
 who answers it, such bill will not be dismissed before the 
 final hearing, (g) 
 
 A cross-bill can not be maintained where it rests upon the 
 same facts as the original, and the original fails. (A) 
 
 SECTION II. 
 
 FRAME OF BILL. 
 
 Generally, a cross-bill should state the parties, prayer and 
 objects of the original bill, the proceedings tliereon, and the 
 
 (a) Ferris v. McClure, 36 1)1. 77; Inglehart v. Crane, 42 111. 262; Taijlor 
 V. Titus, 2 Edw. Ch. 135; Barrington v. O'Brien, 2 Ball & Beat. 140; see 
 Kelsey r. Hoihy, 16 Pet. 269; National Bank v. Sprague, 21 N. J. Eq. 530. 
 
 (6) Aiken v. Merrel, 89 111. 63. 
 
 (c) Newbury Y. Wren, 1 Vern. 221; Field y. Schieffelin, 7 Johns. Ch. R. 
 252; Galatian v. Erwin, Hopk. Ch. 48; Sterl v. Stefl, 2 Bradw. 223. 
 
 {d) Field v. Schieffelin. 1 Johns. Ch. R. 252. 
 
 [e] White v. Buloid, 2 Paige, Ch. 164; 2 Barb. Ch. Pr. 127; Story's Eq. 
 Pl.§399. 
 
 (/) Hurd V. Case, 32 111. 45; Jones v. Smith, 14 111. 229. 
 
 [g) Payne v. Cowan, 1 S. & M. Ch. 26. 
 
 {h)^\ Mich. 540. 
 
326 CROSS-BILLS. 
 
 Frame of Bill — Cross-Bill to a Foreclosure Suit. 
 
 rights of the party exhibiting tlie bill, which are necessarj to 
 be made the subject of cross-litigation; or the ground on 
 which he resists the claims of the complainant in the original 
 bill, if that is the object of the new bill. A cross-bill should not 
 introduce new and distinct matters, not embraced in the orig- 
 inal suit; for as to such matters it is an original bill, and they 
 can not properly be examined at the hearing of the first suit, (a) 
 And it is said that a cross-bill need not, as against the com- 
 plainant in the original bill, show any equity to support the 
 jurisdiction, (b) 
 
 When the bill is brought by one defendant upon a question 
 between two defendants, the complainant to the original bill 
 must be a party, (c) 
 
 A cross-bill to have usurious securities delivered up, must 
 offer to pay what is due. {d) 
 
 No. 145. Oross-bill to a foreclosure suit. 
 
 StATK of MiOHIGAlir. 
 
 The Circuit Court for the County of •. In Chancery. 
 
 To the Circuit Court for the County of . In Chancery, 
 
 Your orator, A B, of, etc., respectfully represents unto the 
 court, that on, etc., C D, of, etc., one of the defendants here- 
 inafter named, exhibited in this honorable court his bill of 
 complaint, against one E F, of. etc., a defendant hereinafter 
 named, and your orator, to foreclose a mortgage therein 
 described, and thereby praying that an account may be 
 taken in that behalf, and that the defendant, E F, be de- 
 creed to pay the said C D whatever su lu should appear to 
 be -line to him, together with the costs of that proceeding, 
 and that in default of such payment, the said mort- 
 gage property may be sold as directed by the court, to 
 
 {a) Andrews v. Kihhe,l2 Mich. 94; Story's Eq. PL §401; Mitf. Eq. 
 PL 81; Coop. Eq. PI. 88; Welf. Eq. PL 228: May y. Armstrong, 3 J. J. 
 Marsh. 262; Galatian v. Erwin, Hopk. 48; Hudson v. Hudson, 3 Rand. 
 117; Hurdr. Case, 32 111. 45,49; Jones v. Smith, 14111. 229; Fletchers. 
 Wilson, 1 S. & M. Ch. 376; Cross v. De Valle, 1 Wall. U. S. 1. 
 
 (6) Ddble v. Potman, Hardr. 160; Burgess v. Wheate, 1 Blacks. 132; 
 Mason v. Gardiner, 4 Bro. C. C. 437; Calverley v. Williams, 1 Ves. Jr. 
 211, 213. 
 
 (c) Coop. Eq. PL 85; Welf. Eq. PL 229; Milf. Eq. PL 81. 
 
 [d) Mason v. Gardiner, 4 Bro. C. C. 337. 
 
CROSS-BILLS. 327 
 
 Frame of Bill — Gross-Bill to a Foreclosure Suit. 
 
 satisfy such debt and costs; and that in case of snch sale and a 
 failure to redeem therefrom pursuant to law, the said E F 
 and your orator, the defendants to said bill, and all persons 
 claiming through or under them, after the commencement of 
 said proceeding, niay be forever barred and foreclosed of all 
 right or equity of redemption of the said mortgaged property; 
 and that the said C D may have such other and further relief 
 as equity may require and to the court shall seem meet; and 
 your qrator being duly served with process, appeared and put 
 in his answer thereto, as by the said bill, and other pleadings 
 and proceedings in the said cause, now remaining on file and 
 of record in this honorable court, reference thereto being had, 
 will more fully appear. 
 
 Your orator further represents unto the court that, on, etc., 
 and prior to the date of the execution of the said mortgage 
 from the said E F to the said C D. the said E F being in- 
 debted to your orator in the sum of dollars, made and 
 
 delivered to your orator his certain promissory note of that 
 date, and thereby promised to pay your orator the said sum of 
 
 dollars, on, etc., {describe the note) as will appear by the 
 
 said note, ready to be produced in court, and by a copy of the 
 same hereto attached, and marked " Exhibit A," which is 
 hereby made a part of this, your orator's cross-bill. 
 
 Yonr orator further represents, that to secure the payment 
 of the principal sum and interest mentioned in said promissory 
 note, the said E F, on, etc., by his mortgage deed of that date, 
 conveyed to your orator, in fee simple, that certain parcel of 
 
 land, with the appurtenances, in the said county of , to 
 
 wit: {Here describe the mortgaged premises) subject, how- 
 ever, to a condition of defeasance upon the payment of the 
 principal sum and interest aforesaid, according to the tenor 
 and eft'ect of the said promissory note, which said mortgage 
 deed was on, fete., duly acknowledged; and afterward (and 
 before the execution and delivery of the mortgage deed to the 
 said C D), on, etc., the said moi'tgage deed to j'our orator was 
 duly filed for record in the recorder's office of the county of 
 aforesaid; as by the said, mortgage deed and its accom- 
 panying certificates of ackTiowledgment and recoi-ding, ready 
 to be produced in court, will more fully appear. A copy of 
 the said mortgage deed and certificates, marked " Exhibit B," 
 is hereto attached, and is hereby made a part of this bill. 
 
 Your orator further represents that the lien of your orator's 
 said mortgage deed is superior and prior to that of the said C 
 D,; and that the said E F has not yet paid the said principal 
 sum and interest, so due your orator, or any part thereof, al- 
 
828 CROSS-BILLS. 
 
 Frame of Bill — Plea Puis Darrein Continuance. 
 
 though the same long since became due; by means whereof 
 the said mortgaged premises have become forfeited, subject, 
 nevertlieless, to redemption in equity by the said E F and C 
 D, or their assigns. 
 
 Forasmuch, tiierefore, as your orator is without remedy in 
 the premises, except by filing this his cross-bill, in the said 
 proceedings commenced by the said C D against your orator 
 and the said E F; and to the end t])at the said C D and E F, 
 who are hereby made parties defendant to this cross-bill, may 
 be 7'equired to make full and direct answer to the same, hut 
 not umJer oath, the answer under oath being hereby waived, 
 that an account may be taken by or under the direction of 
 tlie court, of the amount due your orator upon said promissory 
 note and mortgage deed; that the defendant, E F, may be de- 
 creed to pay to your orator whatever sum shall appear to be 
 due to him upon the taking of such account, together with 
 the costs of tliis proceeding, by a short day to be fixed by the 
 court; that in default of such payment the said mortgaged 
 premises may be sold as this honorable court shall direct, to 
 satisty such debt and costs; that in case of such sale, and of a 
 fiiijure to redeem therefrom pursuant to law, tliat the defend- 
 ants, and all persons claiming through or under them, after 
 the commencement of this proceeding, may be forever barred 
 and foreclosed of all right or equity of redemption of the said 
 niortijaged premises; and that your orator may have such 
 further and other relief in the premises as the nature of his 
 case sliall require and to this honorable court shall seem meet. 
 {Add jprayer for process, and attach exhibits,) 
 
 No. 146. Cross-bill in the nature of a plea puis darrein corv- 
 
 tinuance. 
 
 State of MicniGAN. 
 
 The Circuit Court for the County of . In chancery. 
 
 To the Circuit Court for the County of . In chancery. 
 
 Your orator, A B, of, etc., respectfully represents unto 
 the court, that on, etc., D, of, etc., the defendant herein- 
 after named, filed his bill of complaint in this honorable court 
 against your orator, thereby praying, -etc., {Here state the 
 prayer of the bill); and your orator, being duly served with 
 process, appeared and put in his answer thereto, to which an- 
 swer the said C D filed a replication ; and issue being thus 
 joined, testimony was taken on both sides, and the proofe 
 closed ; whereupon the said cause was set down for hearing, 
 as by the said bill, and other pleadings and proceedings in 
 the said cause, now remaining as of record in this honorable 
 court, reference being thereto had, will more fully appear. 
 
CEOSS-BILLS. 329 
 
 Frame of Bill — Plea Puis Dan-ein Continuance. 
 
 Your orator further represents, tha*- the said cause has not 
 yet been heard; and on, etc., the said C D, by a certain writ- 
 ing of release, of that date, did remise, release, and forever 
 quit-claim unto your orator, his heirs, executors and adminis- 
 trators, the several matters and things complained of in and 
 by the said bill of the said D, and in question in the said 
 suit, and each and every of them, and of all sums of money 
 then due and owing, or thereafter to become due and 
 owing, together with all, and all manner of actions, causes 
 of actions, suits, and demands whatsoever, both at law 
 and in equity, or otherwise howsoever, which lie, the said C 
 D, then had, or which he should or might at any time or 
 times thereafter have, claim, allege or demand against your 
 orator, for, or by reason or means of any matter, cause or 
 thing whatsoever, from the beginning of tie world to the day 
 of the date of the said deed or writing of release; as by the 
 said release, reference thereunto being had, and a copy of the 
 same hereto attached, marked " Exhibit A," and made a part 
 of this bill, will more fully appear. 
 
 And your orator hoped that in consequence of the said re- 
 lease, the said C D would not have proceeded in the said suit 
 against your orator; but the said C D, notwithstanding the 
 said release, threatens and intendsto proceed in the said suit, 
 and to bring the same on for hearing in due course ; and he 
 pretends that no such release was ever executed by him, or if 
 60, that the same was obtained by fraud and surprise, and there- 
 fore void. Whereas, your orator charges that the same was, 
 in every respect, fairly and properly obtained by your orator, 
 and duly executed by the said D. 
 
 And your orator further represents, that under the circum- 
 stances aforesaid, he is unable to put the said release in issue, 
 or to use the same as a plea in bar of the said suit. 
 
 Forasmuch, therefore, as your orator is without remedy in 
 the premises, except in a court of equity ; and to the end that 
 the said C D, who is made a party-defendant to this cross-bill, 
 may be required to make full and direct answer to the same, 
 }mt not under oath, the answer under oath heing hereby 
 waived^' and that the said release may be established and de- 
 clared by this honorable court a sufficient bar to any further 
 proceedings by the said C D in the said suit; and that the bill 
 of the said D therein may, under the circumstances, be 
 forthwith dismissed with costs ; and that your orator may 
 have such other and further relief in the premises as equity 
 may require and to this honorable court shall seem meet. 
 
 {Pray process and attach " Exhibit A") 
 
330 CROSS-BILLS. 
 
 When to be Filed. 
 
 SECTION IIL 
 
 WHEN TO BE FILED. 
 
 The proper time for filing a cross-bill, when such a bill is 
 necessary, is at the time of putting in the answer to the 
 original bill, and before issue is joined by the filing of a repli- 
 cation, (a) As the matters of defense upon which a cross-bill 
 is founded must be stated in the answer to the original bill, 
 as well as in the cross-bill, it can seldom be necessary to de- 
 lay the filing of the cross-bill, till after the original caiise is at 
 issue, (b) 
 
 Bat the rule that a cross-bill should be filed at the same 
 time with the answer, does not apply to such a bill by one 
 defendant against a co-defendant, for the reason that, until the 
 answers are filed, neither defendant can know what defense 
 the other will set up. (c) 
 
 A defendant desiring to file a cross-bill shoald do so without 
 dela_7, and have the same ait issue, if practicable, so as to be 
 heard with the original bill. If he desires further time, he 
 must seek it as a matter of indulgence, (d) The proceedings 
 in the original suit will not be delayed, unless on the special 
 order of court, founded upon notice of the application to the 
 adverse party, (e) 
 
 The defendant can not claim, as a matter of right, a continu- 
 ance, where the original cause is ripe for hearing, by filing a 
 cross-bill, and having the same answered, without showing 
 sufficient cause for delay. (J^) To entitle him to a delay of the 
 
 («) Irving v. DeKay, 10 Paige, Ch. R. 319 ; Wiley v. Platter, 17 111. 540. 
 
 (6) 2 Barb. Ch. Pr. 129. 
 
 (c) Vandervner v. Holcomh, 21 N. J. Bq. 105 ; see Berryman v. Graham, 
 lb. 370. 
 
 (d!) Beauchamp v. Putman, 34 lU. 378 ; Reed v. Kempf, 16 111. 445 ; 
 Youngs v. Overseers, etc. 2 Green, N. J. 521. 
 
 (e) Cartwright v. Clark, 4 Met. 104 ; Field v. SchieffeMn, 7 Johns. Ch. 
 2-50 ; White v. Buloid, 2 Paige, Ch. 164 ; Coleman v. Moore, 3 Litt. 355; 
 Beauchamp v. Putinin, 34 111. 378. 
 
 (/) Wiley V. Plattei; 17 111. 538 ; see Reed v. Kempf, 16 111. 448. 
 
CROSS-BILLS. 831 
 
 Leave to File — Process Upon. 
 
 original proceeding's, tlie cross-bill must be sworn to positiyeh', 
 either by tlie complainant thereto or by the person from whom 
 his information of the facts was derived, [a) 
 
 The court itself will sometimes, in its discretion, where it 
 appears that the suit is insufficient to bring before the court 
 the rights of all the parties, and the matters necessary to a 
 just determination of the cause, at the hearing, direct a cross- 
 bill to be filed. (5) 
 
 Leave to file. — A defendant can not file a cross-bill before 
 the original bill is answered, (o) And then, only upon leave 
 obtained from the court for that purpose, {d) 
 
 In Illinois it is held that the filing of a cross-bill is a mat- 
 ter of right and requires no leave, but it does not necessarily 
 stay the original cause; (e) and this is the rule in Michigan. 
 
 SECTION IV. 
 
 PEOCESS UPON. 
 
 Process should be prayed, issued and served as in original 
 bills. 
 
 In Illinois the rule is different, for there by statute it is pro- 
 vided, that, " where it is necessary for the defendant to bring 
 a new party before the court, he shall state it in his cross-bill; 
 and a summons shall be issued, and other proceedings had, as 
 in the case of other defendants." This was the rule independ- 
 ent of such statute and before its passage, [f) As against the 
 parties to the original bill, no process is necessary, {g) 
 
 (a) Talmage v. Pell, 9 Paige, Ch. 410; Iroing v. DeKai/, 10 Paige, Ch. 
 319. 
 
 (6) Field V. Schieffelin, 7 Johns. Ch. BriO; Latouche v. Dunsaneij, 1 Sch. 
 & Lef. 137; Story's Eq. PL § 896; Mitf. Eq. PI. 82, STS. 
 
 (c) Allen V. Allen, Hemp. 58. 
 
 (d) Branson v. LaCrosse & Milwaukee E. S. Co. 2 WalL IT. S. 283. 
 
 (e) Beauchamp v. Putman, 34 lU. 378; Jones v. Smith, 14 IlL 229; W. 
 U. Teleg. Co. v. P. & A. Teleg. Co. 49 111. 90; Davis v. Am. (& For. Chris. 
 Un. 100 m. 318. 
 
 (/) Jones v. Smith, 24 111. 229; Hurd v. Case, 82 lU. 46. 
 1^) Fleece v. Bussell, 13 111. 81. 
 
832 CROSS-BILLS. 
 
 Defenses to — Demurrer. 
 
 In Kentucty it is held that process must issue on the filing 
 of the cross-bill, or the defendants are not bound to notice 
 it. (a) 
 
 It is the duty of a party who files a cross-bill, to take steps 
 to have it answered ; and where no such steps are taken, and . 
 the parties voluntarily go to a hearing, the cross-bill may be 
 regarded as abandoned. (5) 
 
 SECTION V. 
 
 DEFENSES TO. 
 
 Demurrer. — A demurrer for want of equity will not lie to 
 a cross-bill filed by a defendant in a suit against the complain- 
 ant in the same suit, touching the same matter. For being 
 drawn into court by the complainant in the original bill, he 
 may avail himself of the assistance of the court without being 
 put to show a ground of equity to support its jurisdiction, (c) 
 Where a cross-bill seeks relief which is of an equitable nature, 
 it should contain all proper allegations which confer an equi- 
 table title to such relief upon the party; otherwise it will be 
 open to demurrer. Thus, where an original bill was filed to 
 enforce a security, and the defendant filed a cross-bill to have 
 the security delivered up as a usurious security, and the 
 cross-bill did not offer to pay the sum really due, a demurrer 
 was allowed, {d) 
 
 If a cross-bill is not confined to the matters in litigation iu 
 the original suit, but seeks to bring before the court other dis- 
 tinct matters and rights, it is no longer entitled to be deemed 
 a cross-bill, but is an original suit, and, it seems, a demurrer 
 
 (a) Miles v. Bacon, 4 J. J. Marsh. 457; Ward v. Davidson, 2 lb. 443; Gar- 
 ner V. Beaty, 7 lb. 223« Talbot v. McGhee, 4 Monr. S)b. 
 (6) Ptirdee v. Henslee, 97 III. 389. 
 
 (c) DoMe V. Potman, Hardr. 160; Coop. Eq. PI. 81, 215; Mitf. Eq. PL 
 203; 2 Barb. Ch. Pr. 133. 
 
 (d) Masonv. Gardiner, 4 Bro. C. C 436; Buhfleld v. Solomons, 9 Ves. 
 84; Hickson v. Aylward, 3 Molloy, 1; Welf. Eq. PI. 230; Galatianv. Emin, 
 Hopk. 48, 59; S. C., 8 Cowen, 661; Tobey v. Foreman, 79 111. 489. 
 
CROSS-BILLS. 333 
 
 Defenses to — Pleas — Answer. 
 
 wonld lie. (a) So, if a cross-bill is filed contrary to the prac- 
 tice of the court, and under circumstances injwhich a pure bill 
 of this nature is not allowed, or if it seeks to bring into ques- 
 tion facts which the party has admitted in his answer to the 
 original bill, it is open to a demurrer, (b) 
 
 Pleas. — A plea to the person of the complainant does n^ t 
 lie to a cross-bill, unless it is exhibited by a person incapable 
 alone to institute a suit; nor does a plea to the jurisdiction to 
 such a bill ; for the defendant, by filing his original bill, has 
 aifirmed the sufficiency both of the person and the jurisdic- 
 tion, (c) Neither can a cross-bill, though between the same 
 parties, as an original suit, be met by a plea of a suit for the 
 same object pending in a court of concurrent jurisdiction; 
 thus, after a bill brought in the exchequer to foreclose a mort- 
 gage, it was held that a defendant may bring a bill in the court 
 of cliancery to redeem, and the pendency of the former suit is 
 not pleadable, (d ) 
 
 In all other respects cross-bills are liable to all the pleas in 
 bar, to which original bills are liable; and the converse is 
 equally true, that a cross-bill is not liable to any plea which 
 will not hold to an original bill. And, as it seems, that a de- 
 fendant can not, by a cross-bill, compel the complainant in the 
 original to make discovery of the defendant's title, the objec- 
 tion may be taken by plea; and it may also be insisted on by 
 answer, (e) 
 
 Answer. — The rules relating to answers to original bills 
 
 (ffl) Welf. Eq. PI. 230; 2 Barb. Ch. Pr. 133. 
 
 (J) Story's Eq. P). § 628-683; Coop. Eq. PI. 87; 2 Barb. Ch. Pr. 133; 
 Welf. Eq. PI. 230; Berkleij v. Ei/der, 2 Ves. 533, n37; 1 Mont. Eq. PL 328, 
 White V. Buloid, 2 Paige, Ch. R. 164; Field y. Schieffelin, 7 Johns. Ch. 
 250; Holbrooh v. Prettyman, 44 111. 811. 
 
 (c) Welf. Eq. PI. 229; Mitf. Eq. PI. 290, 291; Coop. Eq. PI. 304; Beames 
 PL in Eq. 302, 303; 2 Barb. Ch. Pr. 132. 
 
 {d) Lord Newhurgh v. Wren, 1 Vern. 220; 2 Dan. Ch. Pr. 148; Welf. Eq. 
 PI. 229. 
 
 (e) Bellwoodv. WetTierell, 1 Younge & Coll. 211; Glegg v. Legh, 1 Biigh, 
 N. S. 302; Cherry v. Legh, lb. 306; Welf. Eq. PL 230; 2 Barb. Ch. 132, 133. 
 
334 .CROSS-BILLS. 
 
 Proceedinge Upon. 
 
 apply fully to answers to cross-bills. It is to be observed, 
 however, that the complaiBant in the original bill has the 
 right to the first answer; and may move to stay proceedings in 
 the cross-suit until the original bill is answered, (a) And the 
 complainant in the original suit does not waive his right to an 
 answer by obtaining an order for time to answer the cross- 
 bill. (5) 
 
 Where a cross-bill is filed without answering the original 
 bill, which is lost, if the complainant answers the cross-bill, 
 without taking any steps to require an answer from the de- 
 fendants, or to restore his bill, and allows the cause topi'oceed 
 in tliis manner, he will waive the irregularity in the filing of 
 the cross-bill, without first having answered, (c) 
 
 SECTION VL 
 
 PEOCEEDINGS UPON. 
 
 The complainant in the original suit is not compelled in any 
 case to stay proceedings therein upon the filing of a cross-bill, 
 except by a special order of tlie court. And it is not a matter 
 of course for the court to stay the proceedings in the original 
 suit, in any case, except where the defendant in the cross-suit 
 is in contempt for not answering, {d) If the complainant in 
 the cross-bill desires to have the proceedings in the original 
 suit stayed, the cross-bill should be sworn to, (e) by some per- 
 son who knows the facts. {/) 
 
 A final decree upon the filing of a cross-bill, granting the 
 relief thereby sought, can not be rendered in the absence of an 
 answer, unless steps have been taken to place the defendants 
 in default, (g) 
 
 (a) Chancery Rule 20; Harris v. Harris, Tur. & Russ. 165; Wigleij v. 
 Whitaher, 1 Beavan, 849. 
 (6) 2 Barb. Ch. Pr. 134; see Samkissenseat v. Barker, 1 Atk. 20. 
 
 (c) Davis V. Hall, 92 lU. 85. 
 
 (d) White V. Suloid, 2 Paige, Ch. 164. 
 (e)Ib.; 2Barb. Ch. Pr. 134. 
 
 (/) Talmage v. Pell, 9 Paige, Ch. 410. 
 
 Ig) West. Un. Teleg. Co. v. P. <0 A. Teleg. Co. 49 111. 90. 
 
CROSS- BILLS. "935 
 
 Proceedings Upon. 
 
 After both causes are at issue or in a situation to be heard, 
 the complainant in^ the cross-suit may have an order that they 
 be heard together. But the delay of the complainant in the 
 cross-suit will not be permitted tp delay the hearing of the 
 original cause, (a) 
 
 An order should be obtained, when both causes are ready, 
 that they be brought on for hearing together. (5) 
 
 Where an -original bill is dismissed for want of jurisdiction, 
 a cross-bill filed in the same cause must follow the fate of the 
 original bill, (c) 
 
 (a) White v. Buloid, 2 Paige, Ch. 164. 
 
 (b) 2 Barb. Ch. Pr. 135: Hindes, Pr. 54. 
 
 (c) Loomis V. Freer, 4 Bradw. 547. 
 
336 BILLS rOR SPECIFIC PERFORMANCE. 
 
 Nature of, and when Proper. 
 
 CHAPTEE XXV. 
 
 BILLS FOE SPECIFIC PEEFOEMANCE. 
 
 Section 1. Nature of, and when Pboper. 
 
 2. Parties to. 
 
 3. Frame of Bill. 
 
 4. Decree. 
 
 SECTION I. 
 
 NATUEE OP, AND WHETT PEOPEE. 
 
 The essential conditions of a contract which will be specific- 
 ally enforced in a court of equity are, that the contract must 
 be made between competent parties; it must be entered into 
 willingly; the terms must be understood by the parties, and 
 be certain and defined; the consideration must be valuable; 
 there must be mutuality of consideration and remedy; it must 
 be-properly proved; the party seeking its performance, must 
 fulfill his obligations under it; it must be such as the court 
 can enforce; it must be one proper to be executed; it must be 
 one on wbich there is not an adequate remedy at law; it must 
 not be an unreasonable contract, on which there might be a 
 remedy at law; and the conduct of the party seeking the per- 
 formance must have been correct, {a) 
 
 A court of equity will often refuse to enforce a contract 
 which it would also refuse to annul, and will leave th& parties 
 to their remedy at law. ib) 
 
 (a) See Eust v. Conrad, 47 Mich. (Jany Term 1882), Batten on Spec. Perf. 
 of Cont.; see Taylor v. Merrill, 55 III. 52; Fitchy. Boyd, Id. 307; Fleming 
 V. Carter, 87 111. 565; Hanley v. Sheldon, Har. Ch. 420; Ma^nardv. Brown, 
 41 Mich. 298; Smith v. Lawrence, 15 Mich. 499; Picard v. McCormick, 11 
 Mich. 68; Bhmchard v. D. L. <& L. M. R. R. Co., 31 Mich. 44. 
 
 (6) Jackson V. Ashton, 11 Pet. 229; Seymour v. Delancey, 6 Johns. Ch. 
 R. 222; Clitherall v. Ogileie, 1 Dessau. 250; BarksdaleY. Payne, Riley, Ch. 
 174; Cfasque v. Small, 2 Strobh. Eq. 72j Henderson v. Hays, 2 Watts, 148; 
 Munch V. Schabel, 37 Mich. 166. 
 
BILLS FOR SPECIFIC PERFORMANCE. 337 
 
 Nature of, and when Proper. 
 
 A specific performance rests in the sound discretion of the 
 conrt, under all the cii'ciiinstances of the particular case; (a) 
 and it is not decreed where there has been \on<r delaj', or laokes, 
 or a material change of circumstances, {b) The discretion of 
 the court is not, however, an arbitrary one, but is regulated 
 by rules and principles, (c) 
 
 The contract must be free from fraud or surprise, and fair 
 and just in all its parts, or the complainant will be left to his 
 remedy at law. (c?) And a performance will not be decreed 
 on an imperfect, inchoate, or hard bargain, (e) There must 
 also be mutuality and reciprocity of obligation, (y) 
 
 • (a) McMurtrie v. Bennett, Har. Ch. 124; Smithy. Lawrence, 15 Mich. 499; 
 Chambers V. Livermore, 15 Mich. 381 ; McComas v. EasUy, 21 Gratt. Va. 
 23; Wynn v. Smith, 40 Geo. 457; Race v. Weston. 86 111. 91; McCormick 
 V. Sage, 87 111. 484; Kerfoot v. Breckenridge, 87 lU. 205. • 
 
 (6) Pigg V. Corder, 12 Leigh, 69; Sector v. Rector^, 3 Gilm. 105; Milnor 
 v. Willavd, 34 111. 38; Hough v. Coughldn, 41 111. 130; Thompson v. Bruen, 
 46 111. 125; Fitch v. Boyd, 55111. 307; Iglehart v. Gibson, 56 111. 81; Holt 
 V. Rogers, 8 Pet. 420; Houghton v. Murphy, 21 N. J. Eq 118; Harkness 
 V. Underhill, 1 Black, 316; Johns v. Norris. 22 N. J. Eq. 102; Norris v. 
 Knox, 1 Pittsb. Pa. R. 66; Beach v. Dyer, 93 111. 296. 
 
 (c) Griffith V. Frederick Co. Bank, 6 Gill & J. 424; Qainn v. Roath, 37 
 Conn. 16; Meeker \. Meeker, 16 Conn. 403; Sei/mnurv. Delancey, 3 Cow. 
 445; S. C. 6 Johns. Ch. R. 2&2; Kitig v. Morford, Saxton, 274; Anthony 
 V. Leftwick, 3 Rand. 238; Prater v. Miller. 3 H.iwks, 629; Turner v. Clay, 
 3 Bibb, 52; Frisbie v. Ballance, 4 Scam. 237; Broadivell v. Broadicell, 1 
 Gilm. 599; Dougherty v. Hampston, 2 Blackf. 273: Leigh v. Crump, 1 Ired. 
 Ch. 299; Gould v. Womack, 2 Ala 83; Hes-ter v. Hooker, 7 S. & M. 768; 
 Tobey v. County of Bristol, 3 Story, 800; Clement v. Reid, 9 S. & M. 535; 
 Tyson v. Watts, 1 Md. Ch. Decis. 13; Home Maniif. Co. v. Gough, 2 
 Bradw. 477; ^iZed v. Woodruff, 96 111. 11. 
 
 (d) Seymour v. Delancey, 3 Cow. 445; Griffith v. Frederick Co. Bank, 
 6 Gill & J. 424; Bbrfe« v. Scheffer, 21 Gratt. Va. 474; Modesett v. Johnson, 
 2 Blackf. 431; Johnson v. iJotZ^re, 17 111. 433; /venrv. Choteau, 23 111. 39; 
 Boomer v. Cunningham, 22 111. 320; Taylor v. Merrill, 55 111. 52; Lee v. 
 .BTiViy, 104 Mass. 420; iJyajj r. .Kyan, 97 111. 38; Tamwt v. Lavalle, 92 
 lU. 264. 
 
 (e) Ohio V. BoMOT, 6 Ham. 383; McClellan v. Dtrrah, 50 HI. 249. 
 
 (/) McMurtrie v. Bennett, Harring. Ch. 124; Hawley v. Sheldon, Id. 420 
 
 Hutchenson \. McNtitt, 1 Ham. 14; Caheen v. Gordon, 1 Hill, Ch. 51 
 
 Benedict v. Lj/mc^, 1 Johns. Ch. R. 370; O/ji'o v. Scriim, 6 Ham. 383: 
 
 MarMe Co. v. Ripley, 10 Wallace, 339; Eivins v. Gordon, 49 N. H. 444, 
 
 22 
 
338 BILLS FOR SPECIFIC PERFORMANCE. 
 
 Nature of, and when Pi'oper. 
 
 A court of equity will not decree the specific performance 
 of a contract, the consideration of which is a wager upon an 
 election, (a) 
 
 Upon principles of natural justice, a person ought not to be 
 compelled to part with his title to land until he has received 
 the amount which he had contracted to take for it, nor should 
 a person receive a title until he has paid what he agreed to 
 pa^' for it. (5) 
 
 Where a party has failed without sufficient excuse to exe- 
 cute his part of the ontract, and there has been no acquies- 
 cence in the delay by tlie other party, the court will not de- 
 cree specific performance. But if one party has been pre- 
 vented, by any good cause, from performing his part of the 
 agreement, at the stipulated time, and the other party has suf- 
 fered no material injury by the delay, the court will not refuse 
 its aid. {c) 
 
 A party seeking the specific performance of a contract for 
 the sale and conveyance of a tract of land, can not excuse him- 
 self for not tendering the purchase money when dne, upon 
 the ground that the vendor has conveyed the land to a third 
 person, (d) 
 
 A party can not compel the specific performance of a con- 
 tract, unless lie shows that he himself has specifically perform- 
 ed, or can justly account for the reason of his non-perform- 
 ance, (e) He must show that he has not been in fault, but has 
 
 {a) McClurlcen v. Detrich, 33 111. 349. 
 
 iV) Allison V. Clark, Breese, 348; Doijle v. Teas, 4 Scam. 202; Ishmeal 
 V. Parker, 13 111. 324. 
 
 (c) Longworth v. Taylor, 1 McLsan, 395; White v. Law, 7 Vt. 357. 
 Cleveland v. Benton, 11 Vt. 138; Goodell v. Field, 15 Vt. 448; ffatch v. 
 Cohb, 4 Johns. Ch. R. 559; Lewis v. Woods, 4 How. Miss. 86; Russell v. 
 Kester, 46 Mich. 290. 
 
 (d) Doyle v. Teas, 4 Scam. 202; see Shortall v. Mitchell, 57 111. 161. 
 
 (e) Scott V. Shepherd, 3 Gilm. 483; Brown v. Cannon, 5 Gilm. 174; 
 Warren v. Richmond, 53 111. 52; Walts \. Waddle, 6 Pet. .389; Greenup v. 
 Strong, 1 Bibb, 590; Bearden v. Wood, 1 A. K. Marsh. 450; Logan y. 
 McChord, Id. 224; Moore v. Skidmore, 6 Litt. 453; Clay v. Turner. 3 Bibb, 
 ■52; Tglehart\. Gibson, 56 111. 81; Crane v. Decamp, 21 N. J. Eq. 414; 
 Howe V. Rogers, 32 Texas, 218. 
 
BILLS FOR SPECIFIC PERFORMANCE. 339 
 
 Nature of, and when Proper. 
 
 taken all proper steps toward ■performance on his part, and 
 has been ready, desiroTis, and prompt, to perform, (a) , • . 
 
 If one party has been in default, and specific execution would 
 he injurious to the other party, it will not be decreed. (5) But 
 a failure to perform a merely nugatory act, is not material, (c) 
 
 Although great lapse of time will not be a bar, where the 
 complainant has been in no default, and has been reasonably 
 active during the whole time, in asserting his rights, and en7 
 deavoring to enforce performance, (d) yet, where no eifort has 
 been made by a vendee in his life-time, nor by his heirs after 
 his death, until twenty-nine years had elapsed, and the land 
 had risen in value, and other circumstances had occurred, the 
 lapse of time was held a conchisive bar. (e) On the general 
 subject of delay, the eases cited in the note below, are impor- 
 tant. (/) 
 
 In an ordinary contract for the sale of land, where credit ig 
 given, and a conveyance is to be inade on the payment of the 
 last installment, where time is not expressly the essence of the 
 
 (o) Sogers v. Saunders, 16 Maine, 92; Broivn v. Haines, 12 Ohio, 1; 
 Doyle V. Teas, 4 Scam. 202; Kendall v. Almtj, 2 Sumner, 278. 
 
 (V) Vail T. Nelson, 4 Rand. 478; Brashier V. Gratz, 6 Wheat. 528; see 
 Taylor v. Longworth, 14 Pet. 172; AM v. Johnson, 20 How. TJ. S. 511. ' 
 
 (c) Coale V. Barney, 1 Gill & J. 324. 
 
 (d) Coulsqn v. Walton, 9 Pet. 62; Gibson v. Hoag, 95 111. 46; MarshallY. 
 Perry, 90 111. 289. 
 
 (e) Holt V. Rogers, 8 Pet. 420. 
 
 (/) Pratt V. Carroll, 8 Cranch, 471; Williams v. Mattocks, 3 Vt. 189; 
 Miller y. Beo>-, 3 Paige, Ch. R. 466; Waters v. Traws, 9 Johns. R. 450; 
 JacksonY. Edwards, 22 Wend. 498; Smedtey v. Moore, 26 Wend. 238; 
 New Barbadoes Toll Bridge v. Vreeland, 3 Green, Ch. 157; Haffner v. 
 Dickson, 2 Har. & J. 46; Richardson v. Baker, 5 Call. 514; Williams v. 
 iaws, 5 Leigh, 686; McGalliard v. Aiken, 2 Ired. Ch. 186; Falls v. Car- 
 penter, 1 Dev. & Bat. Ch. 237; Strickland v. Fowler, Id. 629; Osborne \. 
 Bremar, 1 Dessau. 486; Koen v. White, Meigs, 358; Craig v. Leiper, 2 
 Yerg. 193; Bracken v. Martin, 3 Id. 55; Childress v. Holland, 3 Hey. 274; 
 McUillin V. McMillin, 7 Monr. 560; Johnston v. Mitchell, 1 A. K. Marsh. 
 225; Logan v. McChord, 2 Id. 224; Eubank v. Hampton, !• Dana, 343; 
 BroaddusY. Ward, 9 Mo. 217; Scott v. Barker, 14 Ohio, 547; Jlfoson v. 
 Wallace, 3 McLean, 148; Tiernan v. Roland, 3 Harfis, 429; De Cordovav. 
 Smith, 9 Texas, 129; Smith v. Hampton, 13 Id. 459; Milnor v. Willard, 
 84 m. 38; Rose v. Swan, 56 HI. 37. 
 
'340 BILLS FOR SPECIFIC PERFORMANCE. 
 
 Nature of, and when Proper. 
 
 contract, a court of chancery may, in its discretion, enforce 
 the performance of stich a contract, although the payments 
 may not have been promptly made. But in so doing the 
 court will inquire into all tlie circumstances attending the de- 
 lay, and the conduct of the parties, (a) Chancery has no 
 power to enforce a specific execution of a contract contrary to • 
 the clearly expressed intention of the parties. (5) 
 
 It is a general rule that the terms of the contract must be 
 clear,- definite' and positive, and its terms must be such that 
 neither party coiild reasonably misunderstand them; nor 
 should it be vague or uncertain in any of its essential partic- 
 ulars, (c) 
 
 Where a party has so far performed his part of a contract, 
 that he can not be put in statu quo, he is entitled to a specific 
 performance, and it is not necessary to show a literal perform- 
 ■ance on his part, unless such perforinance goes to the essence 
 of the contract, {d) 
 
 Where specific performance has become impossible, as from 
 a subsequent sale of tlie subject-matter of it, without notice, 
 courts of equity will not decree a specific performance, though 
 the bill may perhaps be retained for awarding compensation 
 in damages, (e) 
 
 Specific performance will not be decreed, at the instance of 
 ■ the vendor, unless his ability to make title be unquestiona- 
 
 (a) Glover v. Fisher, 11 111. 666; Mvrphi/ v. Lockwood, 21 111. 616; Sny- 
 der -V. Spauldinff, 57 111. 480; Mason v. Wallace, 3 McLean, 148: S. C. 4 
 McLean, 77; Beach \: Dyer, 93 111. 2m ; Allen v. Woodruff, 96 III. 12; 
 Marshall v. Peck, 91 111. 187.- 
 
 (5) Kemp v. Humphreys, 13.111. 573; Stow v. Robinson, 24 111. 532. 
 
 (c) Colson V. Thompson, 2 Wheat. 336; Carr v. Duval, 14 Pet. 77; Pra- 
 ter V. Miller, 3 Hawks, 628; Montgomery v. Norris, 1 How. Miss. 499; Wa- 
 ters V. Brown, 1 3.3. Marsh, 123; Fitzpatrick v. Beatty, 1 Giltn. 454; Pigg 
 V.' Corden, 12 L3is<h, 69; Millard v. Rimsdell, Harring. Ch. 373; Bomier 
 v. Caldwell, 8 Mich. 463; Wilson v. W,lson, 6 Mich. 9; McMurtrie v. Ben- 
 nett, Har. Ch. 124; Brix\. Ott, 101 111. 70. „ 
 
 (d> McCarUe v. Brown, 9 S. & M. 167; Voorhees v. De Meyer, 2 Barb. B. 
 37; Shaw'v. Livermore, 2 Grreen, N. J. Ch. 338. 
 
 (e) Woodward v. Harris, 2 Barb. R. 439; Buttrick v. ffolden, 13 Met. 
 355^ see Oliver.v. Croswell, 42 111. 41; Fallonv. Railroad Co. 1 Dillon, 121; 
 see Wallace v. McLaughlin, 57 111. 53. 
 
BILLS FOR SPECIFIC PERFORMANCE. 341; 
 
 Nature of, and when Proper. 
 
 ble(a) to. all the lands contracted for. (5) And a court of, 
 equity will not force a doubtful title on a purchaser, (e) 
 
 Before a vendor can declare a forfeiture he must be able to 
 tender a deed in accordance with his bond, {d) 
 
 If, from the vendor's negligence or default, the property be- 
 comes encumbered by judgments, taxes, forfeitures or other-i 
 wise, before the time for conveying the same, or before he. 
 offers to perforin his contract, he can not insist on performance 
 by the other party until he relieves the title from such subse- 
 quent incumbrances, (e) 
 
 The right of a purchaser of land from two joint owners, to 
 have a specific performance of the contract can not be impaired, 
 by reason merely that one of the vendors has failed to comply 
 with an agreement with the other in respect to the subject- 
 matter of the contract, {f) 
 
 Although courts of equity will enforce specifically, contracts, 
 relating to personalty, in many cases, yet they will weigh 
 with greater nicety contracts of this description than such, 
 as relate to lands, {g) And if a breach of a contract relating 
 to personal property may be compensated by damages, equity, 
 will not, as a general rule, interfere. (A) The transfer of stock 
 will not always be decreed, {i) Though a contract for insur- 
 
 (o) Garnett v. Mason, 2 Brockenbrough's R. 186; S. C. 6 Call, 308; Mor- 
 gan's Heirs v. Morgan, 2 Wheat. 290; Bank of Columbia v. Hagner, 1 
 Pet. 45.5. 
 ■ (6) Hepburn v. Auld, 5 Cranch, 262. 
 
 (c) Waits V. Waddle, 6 Pet. 389;' S. C. 1 McLean, 200; Soheir v. Wil- 
 liams, 1 Curtis, 479. 
 
 (d) Baker v. Bishop Hill Colony, 45 111. 264; Mix v. Beach, 46 111. 311; 
 but see Boston v. Nichols, 47 111. 353. 
 
 (e) Cooper Y, Tyler, 46 111. 462; see Brown v. Cannon, 5 Gilm. 174. 
 (/) Harding v. Parshall, 56 111. 219. 
 
 ig) Mechanic's Bank v. Seaton, 1 Pet. 299. 
 
 (h) Comles v. Whitman, 10 Conn. 121; Hoy v. Hansborough, 1 Freem. 
 Ch. 533; Caldwell \. Myers, Hardin, 551; Phillips v. Berger, 2 Barb. R. 608; 
 Saveryv. Spenee, I'd Ala. 561; Sulliva't v. Tuck, 1 Md. Ch. Decia. 59;. 
 Waters v. Howard, Id. 112; Roundtree v. McLain, 1 Hemp. 245; The Jus- 
 tices V. Croft, 18 Geo. 473. 
 
 ()■) Ferguson v. Paschall, 11 Miss. 267; ' Boss y. Union Pacific R. R. Co. 
 1 Wool. 26. ■ ■ ' 
 
942 BILLS FOR SPECIFIC PERF,ORMANCE. 
 
 Nature of, and when Proper. 
 
 arice, or for the delivery' ot a policy of insurance by the com- 
 pany, will be enforced, even after a loss, (a) 
 
 "An agreement to sing at concerts will not be specifically 
 enforced, (b) And a husband will not be compelled, specifical- 
 ly, to perform an agreement to procure his wife to join him in 
 a conveyance of real estate, (c) And where a wife refuses to 
 execute a contract by her husband and herself, to convey her 
 land, he will not be compelled to convey his wife's estate to 
 the purchaser, to make compensation for the principal es- 
 tate, (d) 
 
 The specific performance of a mere voluntary agreement 
 will not be enforced; (e) a voluntary settlement will, however, 
 be enforced, at the instance of a child, against the heir, if the 
 former have the preferable equity; (_/) and it has been held 
 that a voluntary agreement, if executed, would be aided in 
 equity (g) 
 
 • A contract to build a railroad will not be enforced in 
 equity, (h) 
 
 A contract to build a hotel, at joint risk and expense, was 
 enforced, where one of the parties had performed his part of 
 the contract, (i) 
 
 A specific performance of a contract, to indemnify against, 
 a pecuniary liability, may be enforced. (_;) 
 
 " (a) Taylor v. Merchants Fire Ins. Co. 9 How. U. S. 390; see Carpenter 
 V. Mutual Safety Ins. Co. 4 Sandf. Oh. 408: Commercial Mutual M. Ins. 
 Co. V. Union Mutual Ins. Co. 19 How. U. S. 318; S. C. 2 Curtis, C. C. R. 
 524. 
 (6) Sanquirico v. Benedetti, 1 Barb. 315. 
 
 (c) Clark v. Savier, 7 Watts, 107; Weed v. Terry, 2 Doug. 844. 
 
 (d) Clark V. Eeins, 12 Gratt. Va. 98. 
 
 (e) SJiepherd v. Shepherd, 1 Md. Ch. Decis. 244; Yasser v. Yasser, 23 
 Miss. 378; Boze v. Davis, 14 Texas, 331. 
 
 (/) Haines v. Haines, 6 Md. 435. 
 
 (g) Read v. Long, 4 Yerg. 68. 
 
 {h) Ross V. Union Pacific R. R. Co. 1 Wool. 26; Fulton v. Railroad Co. 
 1 Dillon, 121. 
 
 (i) Berehett v. Boiling, 5 Munf. 462. 
 
 (i) Chamberlain v. Blue, 6 Blackf. 491; see Robinson v. Catheart, 2 
 Cranch, C. C. 590. 
 
BILLS FOR SPECmC PERFORMANCE. 343 
 
 Nature of, and when Proper — Lost Instrameut — Of an Award. 
 
 Tlie fact that damages may be recovered at law, is no reason, 
 of itself, why performance should not be decreed : (a) nor is 
 the commencement of a suit at law, of itself, a bar. (b) Per- 
 formance may be decreed, in a proper case, where the party 
 has lost his remedy at law. (c) But specific performance of a 
 contract will not be decreed, where the law would not allow 
 damages, (d) 
 
 In applications for specific performance of agreement, it is 
 immaterial what the form'of the instrument is, whether it is 
 a covenant or a penal bond, with a condition to do the 
 thing, (e) 
 
 Lost instrument. — A specific performance of a contract for 
 the sale of land will be decreed, although the contract may be 
 lost, on showing clearly the loss of it, and its contents. {/) 
 
 Of an award. — The performance of an award will be en- 
 forced, on the ground that such performance is an execution of 
 the agreement of the parties, as fixed by the arbitrators, {g) 
 But the enforcement of an award for the payment of money 
 has been refused ; (A) although where some other specific act 
 is prescribed by the award, its performance will be enforced, {i) 
 
 Specific performance of an agreement to refer a disputed 
 matter to arbitrators, can not be decreed ;(/) although it has 
 been held that submission by adult heirs, of an equitable 
 
 (a) Washburn v. Dewey, 17 Vt. 92. 
 
 (6) Brush V. Vandenhergh, 1 Edw. Oh. 21. 
 
 (c) Sogers v. Saunders, 16 Maine, 92. 
 
 (d) Allen v. Beal, 8 A. K. Marsh. 554; see, however, Getchell v. Jewett, 3 
 Greenl. 350. 
 
 (e) Broadwell v. Broadwell, 1 Gilm. 470. 
 (/) Gowkoski V. Day, 16 111. 259. 
 
 (,g) McNeil v. Magee, 5 Mason, 244: Ballanee v. VnderWl, 3 Scam. 453; 
 Jones V. Mill Creek Corporation, 4 Pick. 507 ; Cook v. Vick, 2 How. Miss. 
 R. 882. 
 
 (h) Turpin v. Bauton, Hardin, 312. 
 
 (j) Slory V. Norwick & Wos. E. E. Co., 24 Conn. 94; Kirksey v. Fike, 
 27 Ala. 383. 
 
 ij) Copper V. Wells, Saxon, 10; Tobey v. County of Bristol, 3 Story, 800,' 
 Conner v. Drake, 1 Ohio State R. 166. 
 
344 BILLS FOR SPECIFIC PERFORMANCE. 
 
 Nature of, and when Proper — Parol Contracts. 
 
 claim to land, of which their ancestor died seized, may be en- 
 forced, [a) 
 
 Parol contracts. — The specific performance of a parol con- 
 tract for the conveyance of land will be enforced where the 
 consideration has been paid, and the purchaser has taken pos- 
 session ; (5) or wliere the vendee has paid part of the consider- 
 ation, and taken possession and made valuable improvements, 
 and tendered the balance of tiie purchase money before the 
 expiration of the contract, though the vendor has sold the land 
 to a second vendee, (c) But part payment is not of itself 
 sufficient, {d) And if the party can be amply recompensed 
 pecuniarily, specific performance will be denied, [e) 
 
 To entitle a party to a specific performance of a verbal 
 agreement, the proofs must clearly establish a contract, and 
 all its terms and conditions, and that the purchaser has relied 
 upon and performed his part of the agreement, and that it has 
 been so far performed as to take it out of the statute of frauds, , 
 and tlie conti'act must be proved substantially as set forth in 
 tlie bill, l^efore a decree will be granted. (/") 
 
 (a) Boyd v. Magruder, 2 Rob. Va. 761. 
 
 (6) Wesd V. Terry, Walk. Ch. 501; Weed v. Terry, 2 Doug. 344; Twiss 
 V. George, 33 Mich. 253; Murphy v. Steever, 47 Mich.—; See Comp. L. 1R71, 
 § 4696; Ramsey v. lAston, 25 111. 114; Gibbs v. Blackwell, 37 111. 191; Clay- 
 ton V. Frazier, 33 Texas, 91; Langston v. Bates, 84 111, 524. 
 
 (c) Burtch V. Hogge, Har. Ch. 31 ; Bornier v. Caldwell, Har. Ch. 65; 
 B irnier v. Caldwell, 8 Mich. 463; Norris v. Shonerman, 2 Doug. 16; Mc- 
 Murtrie v. Bennett, Har. Ch. Vii; Millard v. Ramsdell, Har. Ch. 173; 
 Blunt V. Tomlin, 27 III. 93; Keys v. 'Test, 33 111. 316; see De Wolfy. Pratt, 
 42 III. 198; Chambers v. Rome, 36 111. 171; see Harsha v. Reid, 45 N. T. 
 415; Hotcev. Rogers, 32 Texas, 218; Freeman v. Freeman, 43 N. T. 34; 
 Atkinson v. Tanner, 68 111. 247; Ramsey v. Lilian, 25 111. 114; Deniston, 
 V. Baagland, 67 111. 266. 
 
 {d} Scott 7. Bush. 26 Mich. 418. 
 
 (a) Webster v. Gray, 37 Mich. 37. 
 
 {/) Wilson V. Wilson, 6 Mich. 8; Wales v. Newbould, 9 Mich. 45; Deck- 
 ham V. Buffam, 11 Mich. 529; Wurcherer y. Hewitt, 10 Mich. 453; Covell 
 V. Cole, 16 Mich. 223; Muns ell v. Green, 21 Mich. 491; Harwood v. Under- 
 wood, 28 Mich. 427; Mimdy v. Foster, 31 Mich. 313; Ford v. Loomis, 33 
 Mich. 121 ; Ritson v. Dodge, 33 Mich. 463; Stickney v. Parmenter, 35 Mich. 
 237; Hartwell v. Black, 48 111. 301; see Trailar v. Hill, 2 Gilm. 364; 
 
BILLS FOR SPECIFIC PERFORMANCE. 345 
 
 Parties to. 
 
 A parol contract by a father to convey to his son, on con- 
 dition of his taking possession and making improvements, on 
 a proper and clear case shown, will be enforced, (a) 
 
 SECTION II. 
 
 PARTIES TO. 
 
 In case of a contract for the sale of real estate, if the ven- 
 dor should die, and a bill is bronght by his personal' represen- 
 tatives for a specific performance of the contract, all the heirs 
 of the vendor ought to be made parties, either as complain- 
 ants or as defendants, before a specific performance is decreed. 
 {b) In Michigan it has been held that in such a case the 
 heir-at-law, and not the personal representative of the de- 
 ceased, is the proper person to file the bill, (c) For the 
 same reason, if the vendee should die, on a like bill bronght 
 by the vendor or his personal representatives for a specific 
 performance, the heirs, or devisees, if any, of the vendee, as 
 well as his personal representatives, should be made parties to 
 the bill, (d) 
 
 Where a vendor has, by his bond or covenant, bound his 
 heirs to the performance of the obligation or covenant, if he 
 sjionld die, and a bill should be brought for specific perform- 
 ance against the heirs, the executor or administrator would, 
 be a necessary party, {e) 
 
 Hmokins \. Hunt, 14 lU. 42; Peckham f. Barker, S, R. 1.17; Welch y. 
 B vjardi 21 N. J. Eq. 186; Hedriek v. Hern, 4 W. Va. 620; Albertson v. 
 Ashton, 102 111. 50. 
 
 (a) Bohanan Y. Bohanan, 96 111.591; McDowell y. iMcas, 97 111. 489; 
 LangstonY. Bates, 84 111. 524; see Bright v. Bright, i\ 111. 97; Neale v. 
 Neale, 9 Wallace, 1; Oalhraith v. Gdlhraith,h Kansas, 402; Kurtz y. Hib- 
 ner, 55 111. 514. 
 
 (6) Story's Eq. PI. § 160; MorganY. Morgan, 2 Wheat. 297, 298; Ed- 
 wards on Parties, 129-136; Calvert on Parties, 163-170; Roberts v. Mar- 
 chant, 1 Hare, 547. 
 
 (e) Hurse v. Dexter, 9 Mich. 246. 
 
 (d) Townsend v. Camperdown, 9 Price, 180; Story's Eq. PI. § § 160, 177. 
 
 (e) Story's Eq. PI. § 17 '; Knight v. Knight, 3 P. Wms. 333; Plunkett v. 
 Pen on, 2 Atk. 51; Coop. Eq. PI. 38, 39. 
 
346 BILLS FOR SPECIFIC PERFORMANCE. 
 
 Frame of Bill. 
 
 The general rule is, that the parties to the contract are the 
 only proper parties to a suit for a specific performance; and, 
 except in the case of an assignment of the entire contract, 
 there must be some special circumstances to authorize a de- 
 parture from the rule, (a) 
 
 All the heirs of an intestate, as well as the administrator, 
 should be made parties to a bill in chancery to enforce the 
 specific performance of a contract made by the intestate in 
 his life- time, to convey a tract of land, (h) 
 
 Where land that has been contracted to be conveyed is 
 deeded away to a third person, botii the party to the contract 
 and the person to wliom the land has been conveyed, should 
 be made parties to the case made by the bill, (o) A wife is 
 not a proper party where she has not released her dower, {d) 
 
 SECTION III. 
 
 FEAME OF BILL. 
 
 The bill, in cases of specific performance, should describe 
 the land with such accuracy as to enable the court to decree a 
 conveyance, (e) 
 
 The complainant should set out in his bill the contract ac- 
 cording to its legal effect, and should aver a performance of 
 all the conditions precedent on his part; (_/") but a general 
 allegation that he has " done all that he was bound by the 
 contract to do," is held insufficient; the particular facts which 
 he has performed should be stated, in order that the court 
 may determine whether he has done all that he ougbt. (g) 
 
 (a) Wniard v. Taylor, 8 Wallace, 557; Taskerv. Small, 3 Mylne & 
 Craig, 69; Story's Eq. PI. § 177, b; Gibbs v. Blackwell, 37 111. 191; Allen 
 V. Woodruff, 96 111. 11. 
 
 (6) Duncan v. Wickliffe, 4 Scam. 452; Mix v. Beach, 46 III. 311. 
 
 (c) Daily v. Litchfield, 10 Mich. 29; Morris v. Hoyt, 11 Mich. 9; Brener 
 V. Dodge, 28 Mich. 359. 
 
 {d) Richmond v. Robinson, 12 Mich. 193. 
 
 (e) Gray v. Davis, 3 J. J. Marsh. 381. 
 
 (/) Bates Y. Wheeler, 1 Scatn. -54; see Morton v. Smith, 86 111. 117. 
 
 (s) Davis V. Harrison, 4 Litt. 261. 
 
BILLS FOR SPECIFIC PERFORMANCE. 347 
 
 Frame of Bill — Tender. 
 
 "Where, however, tlie coinplainant has partially performed the 
 contract on his part, a formal allegation in the bill, that he is 
 ready to complete tlie performance, is unnecessary. ( a) 
 
 The bill may be framed so as to obtain specific performance 
 or cancellation of the contract ( i) 
 
 If the complainant wishes to set off against the amount to 
 be paid by him, an indebtedness to him from the other party, 
 he must lay the proper foundation for it in his bill, or he can 
 not have the same allowed, (o) 
 
 The complainant need not at his peril state the precise 
 amount due on the contract. He may state his case most 
 favorably to himself, and if, upon the equities of the case, the 
 court should decree a different amount, he can then conform 
 to its judgment, (d) 
 
 Tender. — It is not only necessary that a party asking to 
 enforce a contract for the purchase of a tract of land, should 
 make a tender of the purchase money, but lie must bring the 
 money into court, and deposit it with the clerk, (e) 
 
 The failure of the vendee to tender performance and de- 
 mand a deed before filing a bill for the specific performance 
 of a contract for the sale and conveyance of land, only affects 
 the question of costs, (f) 
 
 When there are conflicting interests set up by a vendee in 
 a laud contract, and his wife and one to whom such vendee 
 has assigned in trust for creditors, it is competent for the 
 
 (a) Hatcher v. Hatcher, 1 McMuUen, Ch. 311; Rohy v. Cossitt, 78 111. 688. 
 
 (6) Mills y.Metcalf, 1 A. K. Marsh. 477; see, also, Yonell v. Allen, IS 
 Mich. 107; Chiner v. Hovey, 15 Mich. 18. 
 
 (e) Soott V. Shepherd, 3 Grilm. 483. 
 
 (c[) Hull V. Peer, 27 111. 312. 
 
 (e) Doyle v. Teas, 4 Scain. 202; Wright v. McNeely, 11 111. 241; DeWolfe 
 V. Long, 2 Gilm. 679; see Webster v. French, 11 111. 254; Anderson v. 
 White, 27 111. 63; Irtvin v. BleaTcley, 67 Pa. St. R. 24; Deichman v. Deich- 
 man, 49 Mo. 107. 
 
 (f)Morris Y.Hoyt, 11 Mich. 8; Daily v. Ritchfield, 10 Mich. 29; see upon 
 tender, Allen v. Atkinson, 21 Mich. 351; Ingersoll v- Horton, 1 Mich. 405; 
 Smith V. Lawrence, 15 Mich. 499; Hunt v. Thorn, 2 Mich. 213; Ritson v. 
 Dodge, 33 Mich. 433. 
 
348 BILLS FOR SPECIFIC PERFORMANCE. 
 
 Frame of Bill — A Written Agreement. 
 
 vendor, in his bill for specific performance, to ask to have the 
 rights of these conflictino; claimants determined. In such a 
 case tlie bill resembles a bill of interpleader, (a) 
 
 Ifo. 147. Bill for specific performance of a written agree- 
 ment—by a vendee v. vendor. 
 
 StatI: of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Your orator, A B, of, etc., respectfully represents unto the 
 court, that on, etc., one C D, beino;, or pretending to be seized 
 and possessed in fee simple of tlie following described real 
 
 property, situatCj lying and being in the county of , in 
 
 the State of , to wit: {Here describe the premises) and 
 
 being so seized, on that day, entered into a written airreement 
 with your orator, for the sale of the same, which said agree- 
 ment was signed by the said C D and your orator, and by 
 which the said C D covenanted and agreed for himself, his 
 heirs, executors and administrators, for and in consideration 
 of the Slim of dollars, to be paid as hereinafter men- 
 tioned, well and truly to convey by a good and siifficient war- 
 ranty deed, in fee simple, to your orator, his heirs or assigns, 
 the tract or parcel of land above described; and, in consider- 
 ation whereof, your orator covenanted and agreed to pay the 
 said C D, his heirs, executors or administrators, the said sum 
 of — — dollars, in manner following, to wit: {JHere state the 
 manner of payments, as in agreement,) as by the said agree- 
 ment, ready to be produced in court, and a cop)' of which, 
 hereto attached and filed, marked "Exhibit A," and made a 
 part of this bill, will more fully apjiear. 
 
 Your orator further represents, that he has always been wil- 
 ling and ready to coujply with the tei'ms of said agreement on 
 his part to be performed; that on, etc., he applied to the said 
 
 C D, and offered to pay him the sum of dollars, being 
 
 the balance then due the said C D, under the said agreement, 
 on his delivering to your orator a sufiicient warranty deed for 
 the said premises, according to the said agreement; yet the said 
 C D refused, and still refuses, to comply with the agreement 
 on his part; although your orator is, and always has been, 
 ready to pay the said sum of dollars, and to fully per- 
 form his part of the said agreement, whenever the said C D 
 
 (a) Hanchett v. McQueen, 32 Mich. 22. 
 
BILLS rOR SPECIFIC PERFORMANCE. 349 
 
 Frame of BiU — A Written Agreement. 
 
 will make and deliver to him a good and sufficient deed for 
 the premises aforesaid. 
 
 Forasmuch, therefore, as your orator is without remedy in 
 the premises, except in a court of equity, and to the end that 
 the said C D, who is made a party defendant to this bill, may 
 be made to make full and direct answer to the same, hut not 
 under oath, the answ&r under oath heing h&rehy waived; and 
 til at the said defendknt may be decreed specifically to perform 
 the said agreement entered into with your orator as aforesaid, 
 and to make a good and sufficient deed of conv^eyance to your 
 orator for the said described premises, your orator being ready 
 and willing, and hereby offering specifically to perform the 
 said agreement on his part, and upon the defendant's making 
 out a good and sufficient title to the said premises, and execut- 
 ing a proper conveyance thereof to j'^our orator, pursuant to 
 the terms of the said agreement, to pay to the defendant the 
 residue of the said purchase money; and that your orator may 
 have such other and further relief as equity may require, and 
 to this court shall seem meet. 
 
 (^Add prayer for process as in 118 and affidavit.) 
 
 No. 148. Bill for speciitc performance of a written agree- 
 merd — by a vendor vs. vendee. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Your orator, A B, of, etc., respectfully represents unto this 
 court, that your orator being seized in fee simple of the fol- 
 lowing described real property, with its appurtenances, situ- 
 ated in the county of , in the State of , to wit 
 
 • {Here describe the prendses): and being desirous, of selling such 
 premises, and one C D being minded to purchase the same, 
 your orator and the said C D, on, etc., entered into and sign- 
 ed a memorandum of agreement, in writing, respecting the 
 said sale and purchase, in the woi-ds, orto the purport and ef- 
 fect following, to wit {Here state the agreement verhatim): as 
 by the said memorandum of agreement, ready to be produced 
 in court, will fully appear. 
 
 And your orator further represents that the said C D paid 
 to your orator the sum of dollars, part of the said pur- 
 chase money, at the time of signing the said agreement; and 
 your orator delivered an abstract of his title to the said prem- 
 ises to the said C D; and your orator has always been ready 
 and willing to perform his part of the said agreement, and, on 
 
350 BILLS FO:a SPECIFIC PERFORMANCli;. 
 
 Form of Bill — Oh a Bond for a Deed. 
 
 being paid the remainder of his said purchase money, with 
 interest, to convey the said premises to the said C D and his 
 heirs, and to let him into possession and the receipt of the 
 rents and profits thereof from the time in the said agreement 
 in that behalf mentioned ; and yonr orator hoped that the said 
 C D would have performed the said agreement on bis part, as 
 in justice and equity he ought to have done. 
 
 But now, so it is, may it please the court, that the said 
 C D alleges that he is and always has been ready and willing 
 to perform the said agreement on his part in case your orator 
 could have made, or can make, him a good and sufficient title 
 to the said premises. But that your orator is not able to make 
 a good title thereto; whert^as, on the contrary, your orator 
 charges and insists that he can make a good and sufficient 
 title to the said premises. 
 
 Forasmuch, therefore, as your orator is without remedy i;ti 
 the premises, except in a court of equity; and to the end that 
 the said D, who is made a party defendant to this bill, may 
 be made to make full and direct answer to the same, hut not 
 under oath, the answer under oath being hereby waived/ and 
 that the said D, defendant, may be compelled by the decree 
 of this honorable court, specifically to pe-rform the said agree- 
 ment with your orator, and to pay to yonr orator the remainder 
 of the said purchase money, with interest on the same from 
 the time the said purchase money ought to have been paid, 
 your orator being willing and hereby offijring, specifically to 
 perform the said agreement on his part, and on being paid the 
 said remaining purchase money and interest, to execute a 
 proper conveyance of the said described premises to the said 
 C D, and to let him into possession of the rents and profits 
 thereof, according to the tenor and efiect of the said agree- 
 ment; and that your orator may have such other and further 
 relief as equity may require and to this honorable court shall 
 seem meet. 
 
 {Add prayer for process as in 118, and affidavit.) 
 
 No. 149. — Bill for specific performance, on a bond for a 
 deed; vendee vs. th^ legal representatives of vendor. 
 
 State of Michigan : 
 
 The Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Your orator, A B, of, etc., respectfully represents unto the 
 court that, on, etc., one C D, late of, etc., being the owner in 
 fee simple, of the following described real property, situate, 
 
BILLS FOK SPECIFIC PERFORMANCE. 351 
 
 Form of Bill — On a Bond for a Deed. 
 
 lying and being in the county of, etc., known and designated 
 as follows, to wit : [Here insert description^ And being 
 desirous to sell the said premises, and your orator being mind- 
 ful to purchase the same, the said D, on the day aforesaid, 
 entered into a certain writing obligatory or bond for a deed 
 with your orator, for the sale thereof to him, which said 
 writing obligatory or bond, bearing da e on the day and year 
 above mentioned, and signed and sealed by the said C D, is 
 in the words and figures following, to wit {Here set out the 
 bond verbatim): as by the said writing obligatory or bond for 
 a deed, ready to be produced in court, will tnore fully appear. 
 
 Yonr orator further represents, that on, etc., he paid the said 
 
 C D the sum of dollars, being a part of the purchase 
 
 money due by the terms of the said writing obligatory, which 
 said sura was received by the said D, and indorsed by him 
 upon the said writing obligatory. 
 
 Your orator further represents, that on or about the day 
 
 of , 18 — , the said C D departed this life, intestate, leav- 
 ing D D, his widow, and E D and F D, his children, and 
 only heirs-at-law; and that afterward, on, etc., one E F, 
 
 of, etc., was duly appointed by the courtof said county of 
 
 ■, administrator of the estate of the said C D, and then and 
 
 there took upon himself the burden of such administration. 
 
 Your orator further represents that afterward, on, etc., he 
 paid to the said E F, administrator as aforesaid, the sum of 
 
 dollars, being the balance due to said estate of the said 
 
 C D, according to the terms and conditions of said writing 
 obligatory. 
 
 Your orator further represents, that the said C D, in his 
 life-time, and the said E F, administrator as aforesaid, since 
 the death of the said C D, have wholly failed to execute and 
 deliver to your orator a good and sufficient deed of convey- 
 ance for the said premises; the said E F insisting that he, as 
 such administrator, has no power or authority to do so. 
 
 And your orator further shows that the said E D and F D 
 
 are minors, under the age of years, and have no legal 
 
 guardian. 
 
 Forasmuch, therefore, as your orator is without remedy in 
 tlie premises, except in a court of equity; and to the end that 
 the said D D, E D, F D and E F, administrator, of the estate 
 of D, deceased, who are made parties defendant to this bill, 
 may be required to make full and direct answer to the same, 
 lut not under oath, the answer under oath being hereby 
 waived/ that a guardian ad litem may be appointed for the 
 infant defendants named above; that a good and perfect deed 
 
352 BILLS FOR SPECIFIC PERFORMANCE. 
 
 Form of Bill — Lessee against Lessor of a Written Agreement. 
 
 of conveyance may be made to your orator for the premises 
 aforesaid; that a commissioner may be. appointed by the court 
 to make and execute such deed, or th'at the master in chan- 
 cery of tljis court be directed to execute the same; and that 
 your orator may iiave such other and further relief as equity 
 may require and to this honorable court shall seem meet. 
 {Add jprayer for jtrocess as in 118, and affidavit.) 
 
 No. 150. Bill for specific performance, hy lessee against 
 lessor of a written agreement for a lease of a house. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chaticery. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Your orator, A B, of, etc., respectfully represents unto the 
 court, that C D, of, etc., the defendant hereinafter nanifed, be- 
 ina; possessed of the premises described as follows, to wit: 
 (Here insert description^ And being desirous to let the 
 same, on, etc., proposed and agreed to lease to your orator the 
 same, with the appurtenances, and thereupon your orator and 
 the defendant executed a certain memorandum or agreement 
 of that date, in the words and figures following, that is to 
 say: (Here set out copy of agreement verbatim,) as by the 
 said agreement, ready to be produced in court, will appear. 
 
 Your orator further represents, that in expectation and con- 
 fidence that a lease would have been executed to him of the 
 premises, pursuant to the terms of the said agreement, your 
 orator has expended sundry sums of money in the said prem- 
 ises; and has always been ready to perform his part of the said 
 agreement, and to accept a lease of the said premises, pursuant 
 to the terms thereof. And for that purpose caused a draft of 
 a lease to be drawn pursuant to the terms of the said agreement, 
 and tendered the same to the defendant for his perusal and 
 approbation, but he refused to accept or peruse the same. And 
 your orator has frequently applied to the defendant and re- 
 quested him to execute to your orator a lease of said premises 
 conformable to the said agreement. And your orator well 
 hoped that no dispute would have arisen, touching the said 
 agreement and the leasing of said premises, but that the de- 
 fendant would have complied with the reasonable request of 
 your orator, as in eqnity he ought to have done. But now so 
 it is, the defendant pretends that no such agreement was ever 
 entered into between your orator and the defendant, or any 
 agreement, or that he consented to grant a lease to your ora- 
 tor, whereas your orator charges the contrary of such pretenses 
 
BTLLS FOR SPECFFIC PERFORMANCE. 353 
 
 Decree — Declaration of Right. 
 
 to be the trutb. Nevertbeless tbe defendant refuses to com- 
 ply with your orator's said reasonable requests, or to perform 
 the aforesaid agreement. 
 
 Forasmuch, therefore, as yonr orator is without an adequate 
 remedy in the premises, except in a court of equity; and to 
 the end that the said D, who is made party defendant to 
 this bill, may be required to make full and direct answer to the 
 same, iut not under oath, the ansioer under oath heing herehy 
 waived; that the court may decree that the said agreement 
 may be specifically performed and carried into execution; that 
 the defendant may be decreed to execute a lease of the said 
 premises to your orator according to the terms of said agree- 
 nlent, your orator hereby offering to execute a counterpart 
 thereof, tind in ail other respects to perform his part of the 
 said agreement; and that j'our orator may hav'e such other and 
 further relief in the premises as equity may require and to this 
 court thall seem meet. 
 
 {Add jprayer for process and affidavit.) 
 
 SECTION IV. 
 
 DECREE. 
 
 Declaration of right to specific performance. — According 
 to the old practice, there were two ways of frapiing a decree 
 in a suit for specific performance. The one was to declare 
 that the complainant was entitled to a specific performance if 
 a good title could be shown, and then to direct a reference as 
 to the title; the other, to refer the title to the master, and to 
 follow up that direction by a declaration, that if a good title 
 was shown, the agreement ought to be specifically performed. (a) 
 And the omission of this declaration is often attended with 
 inconvenience. (5) 
 
 Where the question of title is not the only issue, but the 
 defendant resists specific performance on any other ground, 
 it was specially necessary that a declaration that if a good ti- 
 tle was shown, the agreement ought to be performed, should 
 be inserted, (c) Of late, however, it is seldom inserted. («?) 
 
 (a) Seaton on Decrees. 209; Stevens v. Gupp'j, 3 Russ. 182. 
 (6) Id. lb.; Mole v. Smith, Jac. 495. 
 
 (c) Seaton on Decrees, 210; Pitt v. Davif, 3 Russ. 182, note. 
 
 (d) Harding v. Beclrfofd, cited in Seaton on Decreej 210; Burroughs v. 
 
 23 
 
354 BILLS FOB SPECIFIC PERFORMANCE. 
 
 Decree — Refer nee of Title. 
 
 Nevertlieless, where a reference of the title is directed, it will, 
 it seems, be implied, {a) 
 
 Where a reference of title is directed, the declaration as to 
 the right to specilic performance is usually made on further 
 directions, {h) 
 
 Where specific performance is decreed without a reference 
 of title, it will be made upon the original hearing, (c) 
 
 Reference of title. — Generally, either the vendor or the pur- 
 chaser may insist upon a reference of the title in the first in- 
 stance; the vendor being entitled to the'opportunity of per- 
 fecting it, and the purchaser of fully investigating it, before 
 the master. But eitlier party may preclude himself from this 
 right by his mode of pleading, {d) So where the acts of the 
 purchaser amounted to a waiver of his right, specific perform- 
 ance was deci-eed in the first instance ; (e) but taking posses- 
 sion and acts of ownership were held not to be a waiver under 
 tlie circumstances, {f) 
 
 The direction is to inquire whether the vendor can make 
 title, not whether he could do so at the time of entering into 
 the contract, {g) If a title can be made before the hearing, (A) 
 or before the report, (i) or upon the hearing for further di- 
 rections, {j) it is sufiicient. 
 
 Oakley, 3 Swanst. 172; Le Grand v. Whitehead, 3 Russ. 309, note; but, 
 see Burton v. Todd, 1 Swanst. 258. 
 
 (a)Seaton on Decrees, 210; see Mole v. Smith, Jac. 494; Le Grand v, 
 WTiitehead, 1 Russ. 309. 
 
 (6)Seaton on Decrees. 210; Bridges v. Eobinson, 3 Mer. 694'. 
 
 (c) Margravine of Auspachv. Noel, 1 Mad. 317: Dakin v. Cope, 2 Russ. 
 175. 
 
 (d) Jenkins v. Hiles, 6 Ves. 653, 654; Seaton on Decrees, 210. 
 
 (e) Fleetwood V. Green, 15 Ves. 594; Margravine of Auspachv. Noel, 1 
 Mad. 310; see Fludyerv. Cocker, 12 Ves. 25; Balfour v. Welland, 16 Ves. 
 151. 
 
 (/) Burroughs v. Oakley, 3 Swanst. 159. 
 
 (g) Langford v. Pitt, 2 P . Wms. 630. 
 
 (h) Wynn v. Morgan, 7 Ves. 202. 
 
 [i] Langford v. Pitt, 2 P. Wms. 630; Jenkins v. Hiles, 6 Ves. 655; Sfion 
 V. Slade, 7 Ves. 279; Mortlock v. Buller, 10 Ves. 315; Hepburn v. Dunlap, 
 I Wheat. 179; see Coffin v. Cooper, 14 Ves. 205. 
 
 ( j) Pctton V. Rogers, 6 Mad. 256. , ■ 
 
BILLS FOR SPECIFIC PERFORMANCE. 355 
 
 Decree — Payment of Purchase Money and Execution — Delivery of Deeds. 
 
 Foririerly the court directed a reference of the title only in 
 the lirst instance, and, upon further directions, directed a ref- 
 erence back to inquire at what time a good title could be made, 
 with a view to costs, {a) But now the reference will be ex- 
 tended to both objects in tlie first instance, (b) If a reference 
 for the latter purpose is not obtained in the first instance, 
 the defendant is not precluded from obtaining it after the re- 
 port, (e) 
 
 Payment of purchase money and execution of conveyance. 
 
 Tlie payment of the purchase money and the execation of 
 the conveyance are simultaneous acts, and should be done in- 
 terchangeably, id) 
 
 Delmery of deeds, etc. — There should be a direction for the 
 delivery up of deeds, writings, etc., pertaining to the title of 
 tlie estate, (e) 
 
 When one is still owing on a contract, and performance is 
 decreed in his favor, he should be ordered to bring the bal- 
 ance into court for the party entitled. (_/) Equity will not 
 compel the performance by a husband of a contract to procure 
 liis wife's signature to a deed of real estate, or to transfer her 
 homestead interest, {g) 
 
 (o) G\bson V. Clarke, 2 V. & B. 103. 
 
 (6) Seaton on Decrees, 211; Wright v. Bond, 11 Ves. 39; Jgnnings v. Hop- 
 ton, 1 Mad. 211; Anon. 3 Mad. 495. 
 
 (c) Id. ; Gibson v. Clarke, 2 V. & B. 103; Dali/ v. Osborne, 1 Mer. 382; Birch 
 V. Haynes, 2 Mer. 444; see Jennings v. Hopton, 1 Mad. 211; Hyde v. 
 Wroughton,BMa,i.279; Liibin y . Lightbody , 8 Price, 606; ^«o». 3 Mad. 
 495. 
 
 (d) Margravine of Au-tpach v. Noel, 1 Mad. 316; Urmston v. Singleton, 
 cited in Seaton on Decrees, 214; Corbus v. Teed, 69 III. 205. 
 
 (e) Id. lb.; MeNamara v. Williams, 6 Ves. 144. 
 (/) Raymond v. Shawboose, -34 Mich. 142. 
 
 ig) Phillips Y. Stanch, 20 Mich. 369; Weed v. Terry, Walk. Ch. 501; 
 same, 2 Doug. 344; Bing v. Burt, 17 Mich. 465; Buchoz v. Walker, 19 
 Mich. 224; Richmond v. Robinson, 12 Mich. 195; Daily v. Litchfield, 10 
 Mich. 29; see Stevenson v.' Jackson, 40 Mich. 702. 
 
356 BILLS FOB SPECIFIC PERFORMANCE. 
 
 Decree — Decretal Order for a Reference — Interlocutory Decree. 
 
 Wo. 151. Decretal order for a reference as to the title of a 
 
 vendor, etc. ' 
 
 {Caption, and title of cause as in No. 105 si,n\&,page 210.) 
 
 This cause coming on to be heard upon the pleadinjjs filed 
 and proof's taken therein, and the said pleadings and proofs 
 having been read, and the counsel for the respective partie-s 
 having been heard, and in consideration of the premises, it is 
 ordered, that this cause be referred to a conimissioner 
 of this court, to inquire whether a good title can be made to 
 the premises comprised in the agreement between the parties 
 to this cause, mentioned in the pleadings therein; and that he 
 state his opinion thereon to the court. And in case he shall 
 be of opinion that a good title can be made, it is ordered tliat 
 he do inquire and stale when it was first shown that a good 
 title could be made. And that the said commissioner do in- 
 quire and report as to the quantity of land agreed to be con- 
 veyed by the complainant; and that he take an account of the 
 payments made upon such agreement, by the defendant; and 
 that he ascertain and report the balance now due from him 
 upon the said agreement. 
 
 And for the better discovery of the matters aforesaid, the 
 parties are to produce before the said commissioner upon 
 oath, all deeds, books, papers, and writings, in their custody 
 or power, relating thereto; and are to be examined upon inter- 
 rogatories as the said commissioner shall direct; and to take 
 such further proof as either party may produce before him in 
 relation to the several matters mentioned, and report the same 
 to the court. And this court reserves the consideration of all 
 further directions, and of the costs of this suit, until after 
 the said comnnssioner shall have made his report. And either 
 of said parties are to be at liberty to apply to the court as oc- 
 casion may require. 
 
 No. 152. Interlocutory decree for an account. 
 
 {Caption, and title of cause as in No. 105, ante.) 
 
 This cause coining on to be heard upon the pleadings filed 
 and the proofs taken tlierein, and the said pleadings and 
 proofs haying been read, and the counsel for the respective 
 parties having been heard, and the court being fully ad- 
 vised in the premises, aTid on consideration thereof, doth 
 order, adjudge and decree, that this cause be referred to 
 a commissionei', of this court to take a mutual account of 
 all dealings and transactions between the complainant and 
 
BILLS FOR SPECIFIC PERFORMANCE. 357 
 
 * 
 
 Decree — Final Decree. 
 
 defendant in this cause, for the better clearing of which ac- 
 count the parties are directed to produce before the said com- 
 missioner, upon oath, all deeds, books, papers and writings in 
 tlieir custody or power, relating thereto, and are to be examined 
 upon interrogatories, as the said commissioner shall direct; 
 who, in taking the said account, is- to make unto the parties 
 all just allowances; and what, upon the balance of the said 
 account, shall appear to be due from eitlier party to the other, 
 is to be paid as the said commissioner shall direct. And this 
 court reserves the consideration, of the costs of this suit, and 
 of all other directions, until after the said commissioner shall 
 have made his report; when either party is to be at liberty 
 to apply to the court, as occasion shall require. 
 
 No. 153. Final decree for a specific performance of an 
 agreement. 
 
 [Caption, and title of cause as in Ifo. 105, atjte.) 
 
 This cause coming on to be heard for further directions on 
 the report of the commissioner, to whom the same stood 
 referred, and the said report, together with the pleadings 
 and proofs, having been read, and the counsel for the parties 
 respectively having been heard, and the court being fully 
 advised in the premises, and it appearing to the court that a 
 good title can be made by the complainant to the premises 
 comprised in the agreement between the parties to this cause 
 
 mentioned in the pleadings therein, and dated the day 
 
 of 18 — ; it is therefore ordered, adjudged and decreed, 
 
 and this court does order, adjudge and decree, that the said 
 agreement so made and entered into between the complainant 
 and defendant, and duly proved in this cause, be speciiically 
 performed. And it is further oidered, adjudged and decreed, 
 that the complainant execute and deliver to the defendant a 
 proper and snfficient conveyance in fee of the premises de-. 
 scribed in the same agreement between the parties, and par- 
 ticularly described therein, as follows, to wit: {Sere insert 
 description hy metes and bownds,) to be approved by the 
 commissioner of this court, in case the parties differ about 
 tlie same. And it is further ordered, adjudged and decreed, 
 that the defendant, upon the tender or delivery to him 
 of such conveyance, do pay unto the complainant the sum 
 
 of dollars, the balance of the purchase money of said 
 
 premises, reported by the said commissioner to be still due, 
 with interest thereon at the rate of per cent, from 
 
358 BILLS FOR SPECIFIC PERFORMANCE. 
 
 Decree — Pinal Decree. 
 
 the date of the said cominisioner's report. And it is further or- 
 dered, adjudged and decreed that the defendant pay to the com- 
 plainant the costs of this suit, to be taxed. And i:) is further 
 ordered, adjudged and decreed, tliat the complainant have exe- 
 cution against the defendant for the said sum of — dollars, the 
 balance of said purchase money reported by the com missioner to 
 be due, with interest from the date of his report, and for the 
 costs, to be taxed as aforesaid, according to the course and 
 practice of the court. And either of the parties is to be at 
 liberty to apply to this court as occasion may require. 
 
BILLS RELATING TO PARTNERSHIPS. 359 
 
 Where a Dissolution will be Decreed. 
 
 CHAPTER XXVI. 
 
 BILLS EELATING TO PAETNEKSHIP MATTEE3. 
 
 Section 1. Whkre a pissolutioit will be Decbbkd. 
 
 2. AccoDNT Between Partners. 
 
 3. Appointment of a Beceivek. 
 
 4. Forms of Bills. 
 
 5. Forms of Decrees and Orders. 
 
 SECTION I. 
 
 WIIEEE A DISSOLUTION WILL BE DECEEED. 
 
 Where a partnership is formed for a definite term, neither 
 partner can tile a bill for dissolution of the partnership, or for 
 the appointment of a receiver, before the expiration of the 
 time limited, merely on the ground that he is dissatisfied, or 
 that the partners quarrel, (a) 
 
 In matters of difiiculty or controversy between partners, a 
 resort to a court of equity is most usual and most convenient 
 for the adjudication and settlement of the same, (i) And 
 where a party is a member of two different firms, chancery 
 will adjust matters of difference which would otherwise be 
 settled at law. (e) 
 
 The courts of common law have no power whatever of de- 
 creeing or causing a dissolution of a partnership, (d) In some 
 cases in which courts of equity would make such a decree, as 
 where a partnership was formed through fraud, courts of law 
 might apply the principle, that a contract so vitiated never had 
 force, and on this ground declare it null, and avoid the part- 
 
 (o) Henn v. Walsh, 2 Edw. Ch. 129; Loomis v. McKenzie, 31 Iowa, 42.5. 
 (h) Bracken v. Kennedy, 3 Scam. 559; Strong v. Clawson, 5 Gilm. 346. 
 
 (c) Haven v. Wakefield, 39 111. 509. 
 
 (d) Parsons on Part. 457; Story on Part. § 284; 1 Story's Eq. Jar. § 673; 
 Stone V. Fouse, 3 Cal. 294; Nugent v. Locke, 4 Gal. 320; Wilson v. Lussen, 
 5 Cal. 116; Barnstead v. Empire Mining Co. 5 Cal. 299. 
 
360 BILLS RELATING TO PARTNERSHIPS. 
 
 Where a Dissolution will be Decreed. 
 
 nership. But courts of equity have full power over this mat- 
 ter; and upon a bill tiled bv any partner, alleging a sufficient 
 cause, and upon proper evidence, if the facts are not admitted, 
 the court will decree a dissolution of the partnership. («) 
 
 Where the duration of a partnership is tixed, it requires 
 something mure than the mere will of the party to dissolve it 
 within the term ; but only a little more is needed, and a disso- 
 lution will be granted where dissension prevents all hope of 
 advantai^e. ih ) 
 
 Where one partner got possession of the en tire proceeds of 
 the year's operation, without the consent of his copartner 
 (there being nothing in the copartnership agreement author- 
 izing him to do so), and assumed the exclusive control of the 
 whole business, it was held to he such a breach of faith as to 
 authorize a decree for a dissolution of the partnership, (e) 
 
 A decree for a dissolution will be warranted, if it is impos- 
 sible that the partnership should be beneficially continued; 
 namely, if the principles on which the scheme is based are 
 found, on examination, to be erroneous and impracticable; (^) 
 or where the partnership is formed to efiect a particular ob- 
 ject, which is found to be impracticable, and wholly fails; (e) 
 or where the circumstances have so changed as to render it 
 impossible to carry on the partnership without injury to all 
 the partners; {f) or where the object of a partnership is de- 
 stroyed, as a steamboat, {g) 
 
 [a] Parsons on Part. 457; Baxter v. West, 1 Drewiy & Sm. 173; Dumont 
 V. Ruepprecht, 38 Ala. 175; Meaher v. Cox, 37 Ala. 201 ; Harper v. Lamp- 
 ing, 33 Cal. 641; Hamilton v, Stokes, 4 Price, 161; Oldakeryr. Lavender, 
 6 Sim. 239; Green v. Barrett, 1 Situ. 45; Jones v. Yates, 9 B. & C. 532; 
 Colt V. Wollaston, 2 P. Wms. 154; Fogg <& VandersUse v. Johnston, 27 
 Aln,. 432. 
 
 ( 6) Bishop V. BrecUess, 1 Hoff. Ch. R. 534; Meaher v. Cox, 37 Ala. 201. 
 
 (c) Kennedii v. Kennedy, 3 Dana, 239; Gowan v. Jeffries, 2 Ashm. 296; 
 Maude v. Bodes, 4 Dana, 144; Story v. Moon, 8 Dana, 331; Garretson 7. 
 Weaver, 3 Edw Ch. 385. 
 
 (d) Beaumont v. Meredith, 3 Ves. & B. 180; Clough v. Radcliffe, 1 De Gex 
 & S. 164. 
 
 (e) NocTcells v. Croshy, 3 B. & C. 814; 5 Dowl. & R. 751. 
 (/ ) Sarrison v. Tennanf, 21 Beav. 482. 
 
 (g) Claiborne v. Creditors, 18 La. An. 501. 
 
BILLS RELATING TO PARTNERSHIPS. 361 
 
 Account between Partners. 
 
 Bad temper, overbearing and oppressive conduct, quarrel- 
 ing, indolence and inattention, intemperance or bad habits 
 and disgraceful conduct, wild speculations, gross extrava- 
 gance, absenting himself from his business, or entering into 
 other business engagements inconsistent with his duty to his 
 partners, or any conduct which brings disgrace upon the firm 
 or impairs their credit, {a) are all causes which may be suffi- 
 cient, if their degree be sufficient, and otherwise not. {b ) 
 
 SECTION II. 
 
 ACCOUNT BETWEEN PARTNERS. 
 
 Whenever there is a dissolution of a partrfership, for any 
 cause, it would seem that there must be an account, if it is 
 demanded by any party in interest, (e) 
 
 The taking of an account is a frequent preliminary to any 
 further action by a court of equity; because by this means 
 alone can the court ascertain the true relation of the j)arties 
 as to their rights and obligations, {d) 
 
 A copartnership being established, and it being shown 
 that profits have accrued, and are in the hands of either part- 
 ner for which he refuses to account to his copartner, a court 
 of equity will compel an accounting, (e) 
 
 {a) Normal/ v. Bowe, 19 Yes. 148; Waters v. Taylor, 2 Ves. & B. 304; 
 Ilowellv. Harvey, 5 Ark. 278; Master v. Kirton, 3 Ves. 74; Wilson v. 
 Greenwood, 1 Swanst. 481; Blake n ey \. Duf our, 16 hea,v.AO; Hally.Hall, 
 12 Id. 414, and note to 419; Williamson v. Wilson, 1 Bland, 418; Fogg <& 
 VanAtrslise v. Johnston, 27 Ala. 432; Durbin v. Barber, 14 Ohio, 311. 
 
 (6) Parsons on Part. 459. 
 
 (c) Parsons on Part. 511; Adams Eq. 2-39, at seq.; Collyer on Part. § 298; 
 1 Story's Eq. Jur. § 671; Forman v. Hanfray, 2 Ves. & B. 329; Harrison 
 V. Armitage, 4 Mad. 143; Eussell v. Loscombe, 4 Sim. 8; Knowles v. 
 Haughton, 11 Ves. 168; Waters v. Taylor, 15 Ves. 15; Ex parte jBroarffeeni, 
 1 Mont. & A. 685; see Hayes v. Reese, 34 Barb. R. 151; Vermillian v. 
 Bailey, 27 111. 230; Pope v. Salsman, 85 Mo. 862. 
 
 (d) Baird v. Baird, 1 Dev. & Bat. 524; McRae v. McKinzie, 2 Dev. & 
 Bat. 282; Camblaty. Tapery, 2 La. An. 10; Keitneiyv. Kennedy, 3 Dana, 
 240. 
 
 (e) Gates v. Fraser, 6 Bradw. 229. 
 
362 BILLS RELATING TO PARTNERSHIPS. 
 
 Appointing a Receiver. 
 
 An account and a dissolution seem to be so clearly connect- 
 ed that an account is seldom granted unless a dissolution is also 
 asked for; (a) but this can not be deemed a rule of equity, (J) 
 although in the great majority of. cases, where the relations 
 between the partners are such, that one of them can obtain an 
 account only through the interposition of a court, a dissolution 
 is and should be asked for. (c) 
 
 On the filing of a bill in chancery for the settlement of 
 partnership accounts, the parties can not introduce their indi- 
 vidual accounts into the statement, {d) 
 
 Equity will recognize and protect debts due from the firm 
 to an individual member, or from a member to the firm. 
 
 The proper remedy for the assignee of the rights of a part- 
 ner, is a bill for the settlement of the partnership accounts, to 
 which all the partners must be made defendants, (e) 
 
 Ai'tm one who claims to be a partner and that he has been 
 exclnded from participation in the business, waits for six 
 years, it is too late for him to pray for an account, (y) 
 
 * 
 
 SECTION III. 
 
 APPOINTMENT OF A KEC'EIVER. 
 
 Where either partner has a right to dissolve the partner- 
 ship, and the copartnership articles do not provide for the 
 settlement of the concern, it is, of course, for a receiver to be 
 
 (a) Formdn v. Hanfray, 2 Ves. & B. 329; see Loscombe v. Russell, 4 
 Sim. 8; Knowles v. Haughton, 11 Ves. 168; Waters v. Taylor, 15 Ves. 15; 
 Walworth v. Holt, 4 Mylne & Craig, 619, 635. 
 
 (6) Richardson v. Hastings, 7 Beav. 301 ; Fairthorne v. Weston, 3 Hare, 
 387; Miles v. Thomas, 9 Sim. 609; Qoodman v. Whitcomb, 1 Jac. & 
 W. 593. 
 
 (c) Loscombe v. Russell, 4 S'm. 8; Waters v. Taylor, 15 Ves. 10; For- 
 man v. Hanfray, 2 Ves. & B. 329; Chapman x. Beach, 2 Jac. & W. 594; 
 Pigott v. Bagley, McCIel. & Y. 569; Krebell v. White, 2 Younge & C. 15; 
 Parsons on Part. 511-512. 
 
 (d) Hanks v. Babe)", 53 111. 292; see Bracken v. Kennedy, 8 Scam. 559. 
 
 (e) Bank v. Carrollton Railroad. H Wallace, 624. 
 (/ ) Jenny v. Perkins, 17 Mich. 28. 
 
BILLS RELATING TO PARTNERSHIPS. ZGi 
 
 Appointing a Receiver — When Appointed. 
 
 appointed by the court, upon a bill for that purpose; {a) and 
 the receiver will be directed to carry on the business, until a 
 sale of the partnership property can be effected, (b) 
 
 Where a bill is filed seeking a dissolution of a partnership, 
 and it satisfactorily appears that the complainant will be en- 
 titled to a decree for the dissolution, a receiver will be ap- 
 pointed as a matter of course, the obvious reason being that 
 the same causes which would justify a decree for disso'ution 
 \i'0uld also justify the appointment of a receiver, (c) 
 
 When appointed. — Where it appeared that a copartnership 
 was insolvent, and that the complainants, who were members, 
 were excluded from their full share in the management of the 
 concern, and that the defendant, who was the acting partner, 
 neglected to keep proper books of account, and to keep them 
 open for the inspection of the complainants, who were refused 
 access to them, the cOurt, on motion, appointed a receiver be- 
 fore answer and final decree, [d') 
 
 As a general rule, a receiver will not be appointed without 
 notice to those interested; but where irreparable injury would 
 arise from delay, a receiver will be appointed without notice, 
 leaving the other party the right to apply to have the order 
 superseded on cause shown, (e) 
 
 Where there is a dispute, both as to the fact of partnership 
 interest, and the extent of partnership property, a receiver can 
 not be appointed to take property from the one in possession 
 in advance of a decision on the merits. (/") 
 
 When a receiver is appointed in a partnership case it should 
 be of the general assets, and not of specific personal property. 
 
 (a) Law V. Ford, 2 Paig-e, Ch. R. 310; Garrelson v. Weaver, 3 Edw. Ch. 
 385; Sloan v. Moore, 37 Pa. St. R. 217. 
 
 (6) Marten v. Van Schaick, 4 Paige, Ch. R. 479; High on Receivers, 
 § 481; Kellogg v. Moore, 97 111. 283; Curyea v. Beveridge, 94 111. 424. 
 
 (c) Birdsall v. CoUe, 2 Stockt. Ch. R. 65; Seighortner v. Weissenborn, 5 
 C. E. Green, 177; Dunn v. McNanght, 38 Geo. 179; Kirbtj v. IngersoU, 
 Hairing, Ch. R. 18; Marten v. Van Schaick, 4 Paige, CUi. 479. 
 
 (d) Gowan v. Jeffries, 2 Ashni. 296; High on Receivers, §§ 522^29. 
 
 (e) Gowan v. Jeffries, 2 Ashm. 296; Williamson v. Wilson, 1 Bland, 418. 
 (/) Morey v. Grant, (AprU Term '82) 4S Mich. 
 
364 BILLS RELATINO TO PARTNERSHIPS. 
 
 Form of Bills — Bills of Dissolution. 
 
 l^either is it proper to order a receiver to assume possession 
 of so much of a lot of furniture as belongs to a firm without 
 determining what that portion is. (a) 
 
 For rules governing the appointment of a receiver, in a suit 
 between partners, see Kerr on Keceivers, 81-102; High, on 
 Keceivers, §§ 472-552. 
 
 SECTION It. 
 
 I FORM OF BILLS. 
 
 iTb. 154. Bill for dissolution of a partnershi/p, and for am, 
 
 injunction. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 To tlie Circuit Court for the County of . In Ciiancery. 
 
 Your orator, A B, of, etc., respectfully represents unto the 
 court that on, etc., your orator entered into an agreement 
 with one C D, and E F, of the same place, the defendants 
 hereinafter named, to form a copartnersliip with them in the 
 business of auctione&rs,vii\\\c\\ agreement was reducedto writ- 
 ing and signed by your orator and the detendants, and was in 
 the words and figures or to the purport and eflPect followins^, 
 that is to say: [Here set out the agreement verbatim,) as by 
 the said agreement, ready to be produced in court, will a})pear. 
 
 And your orator further represents, that tlje said copartner- 
 ship business was entered upon and lias ever since continued 
 to be carried on by your orator and the defendants in pursu- 
 ance of and under the said agreement, no other articles or 
 instrument having ever been prepared and executed between 
 them. 
 
 Your orator further represents, that having much reason to 
 be dissatisfied with the conduct of the said C D, and being 
 desirous, therefore, to dissolve the said partnersliip, your ora- 
 tor on or about caused a notice in writing signed by 
 
 your orator to be delivered to the said C D and E F in the 
 words and figures or the i)urport and eflfect following, that is 
 to say: {Here set out the notice, if one was given), as in and 
 by such written notice, now in the custody or power of the 
 defendants or ©tie of them, when produced, will appear. 
 
 (a) Moreij v. Grant, 48 Mich. 
 
BILLS RELATING TO PARTNERSHIPS. C65 
 
 Form of Bills — Bill of Dissolution. 
 
 Tonr orator further represents, that the said C D has from 
 time to time since the commencement of the said partnership, 
 applied to his own use from the receipts and profits of the 
 said business very large sums of money, greatly exceeding the 
 proportion thereof to which he was entitled, and in order to 
 conceal the same the said C D, who has always had the man- 
 agement of the said copartnership books, has never once bal- 
 anced the said books. And jonr orator further represents, 
 that having in the beginning of the year 18 — , discovered 
 that the said C D was greatly indebted to the said copartner- 
 ship, by reason of his application of the partnership moneys 
 to his own use, your orator, in order tO form some check upon 
 the conduct of the said C D, requested that he would pay all 
 partnership moneys which were received into their bankers., 
 and would draw for such sums as he had occasion for, but the 
 said C D has wliolly disregarded such request, and lias con- 
 tinued to apply the partnership moneys received by liim to 
 his own use, without paying the same in to the bankers, and 
 lias also taken to his own use money received by the clerks, 
 and has by such means greatly increased his debt to the part- 
 nership, without affording to your orator and the said E F 
 any adequate means of ascertaining the true state of his ac- 
 counts. 
 
 Your orator further represents, that he has, from time to 
 time, applied to the said C D and requested him to come to a 
 full and fair account in respect to the said copartnership trans- 
 actions, with which jnst and reasonable request your orator 
 well hoped that the said CD would have complied, as m jus- 
 tice and equity he ought to have done. But now so it is, may 
 it please your honor, the said C D absolutely refuses so to do; 
 and he at times pretends that he has not received and applied 
 to his own use more than is his due proportion of the partner- 
 ship profits. Whereas your orator charges the contrary there- 
 of to be the truth, and so it would appear if the said C D 
 would set forth a good and true account of all and every his 
 receipts and payments in respect of the said partnership transr 
 actions, and of the gains and profits which have been made in 
 each year since the commencement of. the said partnership. 
 And your orator charges that the said C Dhas in fact received 
 the sum of- dollars and upwards beyond his due propor- 
 tion of the partnership profits, and that he is nevertheless pro- 
 ceeding to collect in the partnership debts and moneys, whereby 
 the balance due from him will be increased, to the great loss 
 and injury of yoiir orator and the said E F. And your orator 
 charges that the said CD ought, therefore, to be restrained 
 
366 BILLS RELATING TO PARTNERSHIPS. 
 
 Form of Bills — Affidavit to a Bill to Obtain an Injunction. 
 
 by tlie order and injunction of this honorable court from col- 
 lecting and receiving any of the said partnership debts and 
 moneys. 
 
 And your orator further represents unto your honor, that 
 the said E F refuses to join with your orator in this suit. {If 
 deemed necessary, add mterrogatories; see ante, page 48.) 
 
 Forasmuch, therefore, as j'our orator is without adequate 
 remedy in the premises, except in a court of equity; and to 
 the end that the said C D and E F, who are made parties de- 
 fendant to this bill, may be required to make full and direct 
 answer to the same, {if the oath is to he waived, say^ ^^ But 
 not under oath, the answer vmder oath heing herehy waived,") 
 that the said copartnership may be declared void, and that an 
 account may be taken of all and every the said copartnership 
 dealings and transactions from the time of the commencement 
 thereof; and also an account of the moneys received and paid 
 by your orator and the defendants respectively in regard 
 thereto. And that the defendants may be decreed to pay to 
 your orator what, if anything, shall upon the taking of the 
 said accounts appear to be due to him, your orator being ready 
 and willing, and hereby offering to pay to the defendants or 
 either of them what, if anything, shall upon the taking of the 
 said accounts, appear to be due to them, or either of them 
 from yoiir orator. And that in the meantime the said C D 
 may be restrained by the order and injunction of this hon- 
 orable court from collecting or receiving the partnership debts 
 or other money. And that your orator may have such other 
 and further relief in the premises as equity may require and 
 to this honorable court shall seem meet. 
 
 And may it please the court to grant unto your orator the 
 people's writ of injunction, to be directed to the said C D, 
 restraining him, his agents and attorneys, from collecting or 
 receiving any of'the debts due and owing to the said firm, and 
 from using and applying any of the co-partnership funds to 
 his own use until the further order of said court. 
 
 {Add prayer for process.') 
 {If an injunction is desired, add affidavit, as follows:) 
 
 Ifo. 155. Affidavit to a hill to ohtai/n an injunction. 
 
 State of Michigan, 1 
 County of . P^" 
 
 On this day of ,18 — , before me personally ap- 
 peared the abdve-Bamed A B, and made oath that he has 
 
BILLS RELATING TO PARTNERSHIPS. 367 
 
 Form of Bills — Bill for Account of Partnership Dealings. 
 
 heard read the above bill subscribed by him, and knows the 
 contents thereot^ and, that the same is true, of his own knowl- 
 edge, except as to the matters which are therein stated to be 
 on his information or belief, and that as to those matters he 
 believes it to be true. C A J, 
 
 Notary Public, 
 — County, Mich. 
 
 No. 156. Bill for an account of parp)iership dealings, and 
 an injunction, etc. 
 
 State 01" Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Your orator, A B, of, etc., respectfully represents unto the 
 court, that on, etc., your orator and C D, of the same place, 
 entered into a general copartnership together for the pur- 
 pose of carrying on a general wholesale and retail dry goods 
 business at, etc., the same to be carried on under the firm 
 name and style of B & D; that your orator enga<!;ed to and 
 
 did bring into said business the snm of dollars, and was 
 
 to receive tioo-thirds of the profits, and, in the same propor- 
 tion, to share the losses of said business; and that the said 
 C D engaged to and did bring into the said business the snm 
 
 of dollars, and was to receive one-third of the profits, 
 
 and was to share the losses of said business in the same pro- 
 portion; that the said copartnership business was commenced 
 on, etc., and was continued from that date until, etc., when 
 the same was dissolved by muttial consent; that during the 
 continuation of said copartnership business a large amount of 
 ;;oods were sold by the said firm to various parties on a cred- 
 it, and the said business remains unsettled. 
 
 Your orator further represents unto the conrt that no settle- 
 ment of said copartnership business has ever been made be- 
 tween your orator and the said C D; that since the' expiration 
 of the term of the said partnership, your orator has repeatedly 
 applied to the said C D to come to a fiaal settlement and 
 adjustment with respect thereto. And your orator well 
 hoped that the said C D would have complied with your ora- 
 tor's reasonable request in that behalf, as in equity and jus- 
 tice he ought to have done. But the said C D declined, 
 and absolutely refuses, so to do. 
 
 Your orator further represents that the said C D has taken 
 possession ©f the partnership books of the said firm, and has 
 
868 BILLS RELATING TO PARTNEESHIPS. 
 
 Form of Bills — Bill for Account of Partnership Dealings. 
 
 collected a large amount of the accounts due and owing to the 
 same, and has refused to permit your orator to see and in- 
 spect said books of account, and wholly refuses to render to 
 your orator any account of the copartnership moneys received 
 by him, and to apply the same to the payment of the debts of 
 the said firm. 
 
 Your orator further represents that upon a just and true 
 settlement of the accounts of the said partnership business, it 
 would appear that there is a large balance due from the said 
 C D to your orator, in respect of the said business. 
 
 Your orator further represents, that the said C D is using 
 the funds of the .said copartnership in rash speculations on 
 his own account, and is therebj^'in danger of drifting into in- 
 solvency; and j'our orator fears, and charges that he is in 
 danger of losing the amount so due him from the said C D in 
 respect to the said copartnership dealings and transactions. 
 By reason whereof the said C D ought to be enjoined and re- 
 strained by the injunction of this honorable court from fur- 
 ther collecting the said copartnership accounts, and from us- 
 ing and furtlier applying the funds of said firm to his own 
 use; and that some suitable person ought to be appointed by 
 this honorable court to receive and take charge of the books 
 of account of the said firm, and to collect the accounts due 
 the same. 
 
 Forasmuch, therefore, as your orator is without adequate 
 remedy in the premises, except in a court of equity; and to 
 the end that the said C D, who is made party defendant to 
 this bill, may be required to make full and direct answer to 
 the same, hut not under oath, the answer under oath being 
 hereby wavoed; and fully set forth a true and just account of 
 all his actings and doings in respect to said copartne; ship 
 business since the expiration thereof; and that an account 
 maj"^ be taken under the direction of this lionorable court, of 
 all and every the said copartnership dealings and transactions, 
 and that the same may be fully adjusted, and the respective 
 rights of your orator and the defendant ascertained; and that 
 the defendant may be decreed to pay to your orator what, if 
 anything, shall appear upon such account to be due from him; 
 your orator being ready and willing, and hereby offers to pay 
 to the defendant what, if anything, shall appear to be due to 
 the defendant from your orator; and that some proper per- 
 son may, in the meantime, be appointed by the court as re- 
 ceiver, to take charge of the said partnership books of account, 
 and collect whatever mone}' or property may belong or be 
 due to the said iirm; and that your orator may have such 
 
BILLS RELATING TO PARTNERSHIPS. 368 
 
 Forms of Decrees — Order appointing a Receiver — Decree for Account. 
 
 other and fnrtlier relief in the premises as equity may require, 
 and to the court shall seem meet. 
 
 May it please, etc. {Add grayer for suivoena and injunc- 
 tion, as in the last precedent and affidavtt.) 
 
 SECTION V. 
 
 rOKMS OF DECKEES AND ORDERS. 
 
 No. 157. Order appointing a receiver in a suit between part- 
 ners. 
 
 {Proceed as in JVo. lOSanteto the asterisk {*.) andcontinve .■) 
 It is ordered that E F, of, etc., be, and he is hereby appointed 
 •receiver to receive the outstanding debts and effects of the 
 late partnersiiip of A B and C D, in the pleadings in this 
 cause mentioned;. that the said E F enter into a bond in the 
 
 penal sum of dollars, with secnrity, to be approved by the 
 
 master in chancery of this court, conditioned for the faithful 
 performance of his duties as such receiver, and that he will 
 be answerable for what he shall receive of such outstanding 
 debts and effects, and will pay the same, as this court shall, 
 from time to time direct 
 
 And it is further ordered that the complainant and defend- 
 ant do deliver over to the said E F, as such receiver, all books 
 of account, securities and evidences of indebtedness, and effects 
 belonging to the said partnership. And in case there shall 
 be occasion to put any of the debts in suit for the recoveiy 
 thereof, the said receiver is to make use of the names of the 
 complainant and defendant, or either of them, as it may be- 
 come necessary for that purpose. It is further ordered that the 
 said receiver, from time to time, make report to the court of his 
 proceedings in this behalf; and that he be at liberty to apply to 
 the court for further directions as he may deem necessary. 
 
 No. 158. Decree for an account of partnership dealings. 
 
 {Proceed sxihstantially as in No. 108 ante to the asterisk, (*,) 
 and then proceed as follows): It is therefore ordered, ad- 
 judged and decreed, that this cause be referred to a commis- 
 sioner of this court to take an account of the partnership deal- 
 ings between the complainant and defendant and for the better 
 discovery of the matters aforesaid, the parties hereto respect- 
 ively are ordered to produce before the said commissioner, 
 and to leave with him until otherwise directed, all books, 
 papers and wrijiipgs. in their custody, or under their control, 
 24 
 
370 BILLS RELATma TO PARTNERSHIPS. 
 
 Forms of Decrees — Final Decree for Dissolution. 
 
 relating thereto; and are to be examined upon oath and in 
 terrogatories, as the said commissioner shall direct; and the 
 said coin missioner will cause to come before him all such wit- 
 nesses, whose testimony he may deem necessary, and examine 
 them upon oatli and interrogatories touching the said accounts. 
 And it is ordered that what shall appear to be dite from either 
 party to the other on the balance of the said account, be paid by 
 such party from whom snch balance shall be found due to the 
 
 the other, within after the report of the said commissioner 
 
 shall have been approved and confirmed by this court. And it 
 is furthel" ordered that the said commissioner make his report 
 herein with all convenient speed; and that the said commiE- 
 sioner, or either of s:aid parties, be at libertj' to apply to the 
 conrt for further directions, and the court reserves the consid- 
 eration of costs until after the said commissioner shall have 
 made his report. 
 
 No. 159. Final decree for- a dissolution of partne7'8Mp, 
 and for an account. 
 
 {Caption, and title of cause as in JVo. 105, ante.) 
 
 Tliis cause having come on to be heard upon the bill of 
 coniplaint herein, the answer of the defendant tiiereto, the 
 replication of the complainant to such answer, and the report 
 ot tiie commissioner of this court, to whom this cause was 
 heretofore referred, to take the proofs of the matters in issue 
 in said cause, and to state an account of the partnership deal- 
 ings between said parties, which said report is hereby ap- 
 proved and confirmed, and having been argued by counsel for 
 the respective parties; and the court being fully advised in 
 the premises, and on consideration thereof, doth find : that 
 the allegations of the said bill are substantially true as therein 
 stated; and that the equity of this cause is with the complain- 
 ant;, and that, etc. {Here insert any other matter found by 
 the c<'Urt)\ and that upon the statement of the account be- 
 tween the said parties, in respect to their partnership dealings, 
 that there is now due from the defendant to the complainant 
 
 the sum of dollars. 
 
 It is therefore ordered, adjudged and decreed, by the court, 
 that the copartnership heretofore existing between the said 
 parties be, and the same is hereby, dissolved; that the de- 
 fendant pay to the complainant within days from this 
 
 date, the said sum of— — dollars, with lawful interest there- 
 on from this day until paid, and also the costs of this snit to 
 be taxed by the clerk of this court; and in default of such 
 payment, that execution issue therefor. 
 
BILLS TO REDEEM. 371 
 
 Nature of. 
 
 CHAPTER XXYII. 
 
 BILLS TO EEBEBM. 
 
 Section 1. Nature op. 
 
 2. Who mat Redeem. 
 
 3. Within What Time to be Filed, 
 
 4. Parties to. 
 
 5. Terms of Redemption. 
 
 6. Frame op Bill. 
 
 7. Decree. 
 
 SECTION I. 
 
 NATUKE OF. 
 
 It is a doctrine of court6 of equit)* that a mortgage is a mere 
 security for the debt, and only a chattel interest; and that un- 
 til a decree of foreclosure, the mortgagor continues the real 
 owner of the fee. The equity of redemption is considered to 
 be the real and beneficial estate, tantamount to the fee at law; 
 and it is accordingly held to be descendible by inheritance, 
 devisable by will, and alienable by deed, precisely as if it 
 were an absolute estate of inheritance at law. {a) 
 
 It is not essential to the right of the mortgagor to redeem 
 that he should do so within tlie time limited in the defeasance. 
 There is no rule of law which requires that a redemption shall 
 be made within the time limited by the mortgage. Until 
 foreclosure, it is a subsisting right, unless barred by the la.p8e 
 of time. (J) 
 
 (a) Bruere v. Wharton, 7 Sim. 483; Russell v. Topping, 5 McLean, 194; 
 Ruifsell V. Ely, 2 Biack, 575. 
 (i) Preschhaker v. Feaman, 32 III. 475; Willetts v. Burgess, 34 III: 494. 
 
372 BILLS TO REDEEM. 
 
 Nature of Deed when Deemed a Mortgage. 
 
 If a subsequent purchaser takes his conveyance with notice 
 of the prior mortgage, he, of course, holds subject to the mort- 
 gage, but he or his grantees have still the right to redeem, 
 and can only be deprived of that right by a foreclosure of tlie 
 mortgage, or by its being barred in some of the modes known 
 to the law. {a) 
 
 Deed absolute on its face, when deemed as a mortgage. — A 
 deed absolute on its face will be deemed as a mortgage, in 
 equity, if intended as a security for the payment of money; 
 (b) and the intention of the parties may be manifested either 
 by a written defeasance, executed simultaneously witli the 
 conveyance, or by the acts or parol declarations of the par- 
 ties, (c) But the evidence must be clear and convincing, and 
 the burden of prcof is upon the party setting up the claim, (d) 
 And where a conveyance is in fact a mortgage, it con- 
 tinues a mortgage, although there maybe a change of owners, 
 if each change is coupled with notice of the original transac- 
 tion, {e) 
 
 [a) DunUp v. Wilson, 32 111. 517. 
 
 (6) Hughes v. Edwards, 9 Wheat. 489; Sprigg v. SanJi of Mount Pltas- 
 ani, 14 Pet. 201; S. C. 1. McLean, 178, 384; Walton v. Crowley, 14 Wend. 
 63; Morris Y. Nixon, 1 How. U. S. 118; Jaques v. Weeks, 7 Watts, 261; 
 Babcoch v. Wyman, 19 How. U. S. 289; Cornell v. Pierson. 4 Halsfc. Ch. 
 478; S. C. 2 Curtis, C. C. 386; Chichering r. Hutch, 3 Sum. 474; Parnng- 
 ton V. Pierce, 88 Maine, 447 ;\B ntle;/ v. Phelps, 2 W. & M. C. C. R. 426; 
 Eldridge v. Jenkins, 3 Story, 181; Jewett v. Cunard, 3 W. & M. C. C. R. 
 277; Graham v. Sheken, 16 Legal Intel. 824; Harrison v. Lemon, 8 Blackf. 
 51; Sutphen v. Cushman, 35 111. 186; DeWolfe v. Strader, 26 111. 225; 
 Dow\. Chamberlln, 5 McLean, 281. 
 
 (c)Comstqek v. Howard, Walk. Ch. 110; Wadsworthv. Loranger, Har. 
 Ch. 118, 150; Wetherhee v. Brooks, 22 Mich. 311; Battp v. Snook, 5 Mich. 
 231; Emsrson v. Atwater, 7 Mich. 12; Coules v. Marble, SI Mich. 1-59; 
 Barbery. Milner, 43 Mich. 248; Delahat/ v. McConnel, 4 Scam. 157; Coafes 
 V. Woodivorth, 13 111. 654; M Her v. Thomas, 14 111. 428; Tillson v. Movl; 
 ton, 2? 111. 648; Deuen v. Blake, 44 111. 135; Hunter v. Hatch, 45 111. 178; 
 Smith V. Doyle, 46 111. 451. 
 
 (d) Van Wert v. Chidester, 31 Mich. 209; Streeterv. Tilden, 45 Mich. 
 533; Johnson v. Van Velsor, 43 Mich. 214; Bartling v. Brushuhn, 102 111. 
 441. 
 
 (e) Brown v. Gafney, 28 111. 149; Shaver v. Woodward, lb. 277; Sei- 
 gard v. McNeil, 38 111. 400. 
 
BILLS TO REDEEM. 373 
 
 Who May Redeem. 
 
 If the transaction was in fact a loan or security for money 
 owing, although the conveyance is absolute on its face, still it 
 will be treated as a mortgage, but that fact must be satisfac- 
 torily shown, {a) Where the evidence of indebtedness is re- 
 tained by the mortgagee, after receiving a deed, absolute in 
 terms, of the mortgaged premises, and the mortgagee gives 
 back a lease to the grantor, and receives rent, equity will re- 
 gard the deed as a mortgage. (5) 
 
 Courts are inclined to construe a deed with condition to be 
 a mortgage, (c) Though a deed absolute in form but intended 
 as a security will leave in the grantor the I'iglit of a mortgage 
 to redeem, it does not follow that he would be entitled to 
 maintain possession until foreclosure, {d) 
 
 SECTION n. 
 
 WHO MAT REDEEM. 
 
 The dquity of redemption is notonly a subsisting estate and 
 interest in the land in the hands of the heirs, devisees, assign- 
 ees and representatives, strictly so called, of the mortgagor; 
 but it also may be asserted by any other persons who have 
 acquired any interest in the lands mortgaged, by operation 
 of law or otherwise in privity of title, {e) Such persons have 
 a clear right to disengage the property from all incumbran- 
 ces, in order to make their own claims beneficial or available. 
 
 (ff) Taintor v. Keys, 43 III. 382; Dwen v. Blake, 44 111. 135; Parmelee 
 V. Lawrence, lb. 405. 
 
 (i) Ennor v. Thompson, 46 111. 214. 
 
 (c) Swetlandy. Swetland, 3 Mioh. 4S2; Cornell v. Hall, 22 Mich. 377; 
 Bnttyy. Snook, 5 Mich. 231; Eiws v. Sutherland, 11 Mich. 538; Abbott v. 
 Gregory, 39 Mich. 68; State Bank v. Chapelle, 40 Mich. 448; Rosenthal 
 V. Scott, 41 Mioh. 635; see Hmld v. Wright, 75 111. 17; Knowles v. 
 Knowles, 86 111. 1; Hancocks. Harper, 86 111. 445. 
 
 {(/) Wetherheey. Green, 22 Mich. 311. 
 
 (e) Pmvers v. Lumber Co., 43 Mich. 468; Baker v. Pierson, 6 Mich. 522; 
 Lmib-v. Jeffrey, 47 Mich.; Smith y. Austin,^ MXch. i&n; 4 Kent's Com, 
 162; 2 Story's Eq. Jur. § 291; TJpham v. Brooks, 2 W. & M. 408. 
 
374- BILLS TO REDEEM. 
 
 Within What Time to be Filed. 
 
 Hence a tenant for life, a tenant by the conrtesy, a tenant in 
 dower, a jointress, a reversioner, a remainderman, a judgment 
 creditor, a junior mortgagee, and, indeed, every other person, 
 being an incumbrancer, or having a legal or equitable title or 
 lien thereon, may insist upon a redemption of the mortgage, 
 in order to the due enforcement of their respective claims 
 and interests in the land, (a) Even a person claiming under 
 aprior or subsequent voluntary conveyance, may, as against a 
 mortgagee, redeem. (5) When any such person does so re- 
 deem, he becomes substituted to the rights and interests of 
 the original mortgagee in the land, (c) 
 
 A junior incumbrancer has a right to redeem from a prior 
 mortgage by paying the amount due according to its terms as 
 recorded, {d) 
 
 As a general rule, the holder of the legal estate under the 
 mortgagor, is a proper person to redeem, whether he holds as 
 trustee for others, or in his own right by a voluntary convey- 
 ance from the mortgagor, {e) 
 
 The complainant must be entitled to the legal estate of the 
 mortgagor, or must claim a subsisting interest under him. (/") 
 
 A court of equity will not lend its aid to enforce the right 
 of a volunteer to pay off a mortgage on the land of another, {g) 
 
 SECTION III. 
 
 WITHIN WHAT TIME TO BE FILED. 
 
 As a general rule, there can be no redemption of a mort- 
 
 (a) 2 Story's Eq. Jur. § 1023; Pardee v. Van Auhen, 3 Barb. R. 534^ 
 Kinnouly. Money, 3 Swanst. 208; Downe v. Morris, 3 Hare, 394. 
 
 (6) 2 Fomb. Eq. B. 3 Ch. 1, § 8, and note p; 2 Barb. Ch. Pr. 193, 194; 
 Dunlapv. Wilson, &2 111.517. 
 
 (c) 2 Story's Eq. Jur. § 1023. 
 
 (d) Gardner v. Emerson, 40 111. 296; HoTbrook v. Worcester Bank, 2 Cur- 
 its, 244. 
 
 {e) Beach v. Shaw, 57 111. 17; see Strang v. Allen, 44 111. 428; Roberts v. 
 Fleming, 53 111. 196. 
 (/ ) Grant v. Duane, 9 Johns. 591 ; Purvis v. Brown, 4 Ired. Eq. 41H. 
 (g) Smith v. Austin, 9 Mich. 465; Smith v. Austin, 11 Mich. 34; Ear- 
 
BILLS TO RKDEEM. 375 
 
 Within What Time to be Filed. 
 
 gage after twenty years from the time of the forfeiture, or of 
 actual, quiet and uninterrupted possession; (a) unless circum- 
 stances are proved by the mortgagor; showing an acknowledg- 
 ment of his title by the mortgagee; (5) or unless the mortga- 
 gor has labored under some impediment; and even in that 
 case, according to Lord Keiiyon's opinion, there can be no re- 
 demption after ten years from the time the impediment has 
 been removed, (c) But it was held in Maryland that an in- 
 fant is to be allowed twenty years after he becomes of age, to 
 file his bill to redeem. (<Z) 
 
 Kedemption will not be allowed before the time speciiied in 
 a mortgage, even on tender of the principal of the debt, with 
 interest, to the stipulated time of payment, and costs, {e) 
 
 A mortgagor seeking to redeem from a sale of the premises 
 by the mortgagee, under a power in the mortgage, on the al- 
 leged ground of a defective notice of the sale and inadequacy 
 of price, must file his bill in apt and reasonable time; (/") and 
 in such case the whole of tlie mortsrage money must be ten- 
 dered; not merely the amount of the sale, (g) 
 
 wood V. Underwood, 28 Mich. 427. See, also, as bearing on the subject as to 
 who may redeem : Stone y. Welling, 14 Mich. 514; Goodenow v. Curtis 
 [overruling Schewarz v. Sears, Walk. Ch. 19], 33 Mich. 505; Willard v. 
 
 TruaXj'il Mich. ; Johnson v. Johnson, Walk. Ch. 331; Marvin v. 
 
 Schilling, 12 Mich. 356; Carter y. Lewis, 27 Mich. 241; Lamh v. Jeffrey, 
 41 Mich. 719; Sager v. iMffer, 35 Mich. 134; Gantzy. Tales, 40 Mich. 726; 
 Thurston v. Prentiss, Walk. Ch. 529. 
 
 (a) Whiting v. White, Coop. 4; Demarestw. Wynkoop,^ Johns. Ch. 129; 
 Beckford v. Wade, 17 Ves. 99; Slee v. Manhattan Co. 1 Paige, Ch. 48; 
 Anon. 3 Atk. 313; Moore v. CabU,-l Johns. Ch. 385. 
 
 (6) Mich. Ins. Co. v. Brown, 11 Mich. 265; Curtis v. Goodenow, 24 Mich. 
 18; Goodrich v: Leland, 18 Mich. 117; Cargilv. Puiver, 1 Mich. 369; Mc- 
 Uughv. Wells, 39 Mich. 175; Cookv- Finkler, 9 Mich. 131; Barron v. 
 Martin, 19 Ves. 327; Hodle v. Healey, Mad. & Geld. 181; Dsxter v. Arnold, 
 3 Sum. 152. 
 
 (c) BeekfordY. Wade, 17 Ves. 99. 
 
 (d) Lamar v. Jones, 3 Har. & McHen. 328; 2 Barb. Ch. Pr. 194-195, 
 («) Abbe V. Goodwin, 7 Conn. 377. 
 
 (/ ) Hamilton v. Lubukee, 51 111. 415. 
 ig) Collins v. Biggs, 14 Wallace, 491. 
 
376 BILLS TO REDEEM. 
 
 Parties to — Complainant. 
 
 SECTION IV. 
 
 PAKTIES TO. 
 
 Complainants.— li the bill is brought by the mortga 
 gor against the mortgagee, there having been no death or as- 
 signment on either side, it is, of course, that no other persons 
 need be made parties. If the mortgagor is dead, then his 
 lieir, orhis devisee, if the estate has been devised, is the prop- 
 er party to redeem, if it is a mortgage in fee; and if a mort- 
 gage for a term of years only, then the personal representative 
 of the deceased, {a) If two estates are mortgaged, and by the 
 death of tlie mortgagor, the equity of redemption of the two 
 estates is vested in different persons, all of them must be 
 made parties to a bill to redeem. (5) 
 
 If the bill charges that a part of the mortgage, principal and 
 interest, has been paid by the mortgagor, in his life-time, the 
 personal representative of the mortgagor, as well as his heir 
 or devisee, is a necessary party to the account from what is due 
 on the mortgage, (o) Indeed, as the personal assets are usually 
 first to be applied in exoneration of the real estate mortgaged, 
 it would seem that in a bill by an heir or devisee to redeem, 
 he might properly make the personal representative of the 
 mortgagor a party defendant, in order to have the assets so 
 applied; and thus relieve himself from the burden of the in- 
 cumbrance. ((?) 
 
 If a mortgagor has conveyed his equity of redemption to 
 ti-ustees, for the benefit of his other creditors, the trustees 
 alone are generally the proper parties to a bill to redeem, and 
 not any of the creditors entitled under the trust, (e) But a 
 
 (a) 2 Barb. Ch. Pr. 195; Story's Eq. PI. § 182. 
 (6) Cholmondeley v. Clinton, 2 Jac. & W. 1, 2. 
 
 (c) S. C. Id. 135; 2 Barb. Ch. Pr. 196. 
 
 (d) Story's Eq. PI. § 182; 2 Barb. Ch. Pr. 196; Howell v. Price, 1 P. 
 Wms. 291; Bradshaw v. Oidram, 13 Ves. 234; Duke of Cumberland v. 
 Coddrington, 3 Johns. Ch. 257. 
 
 (c) Coop. Eq. PI. 175; Troughton v. B.nkes, 6 VpS 573 575 
 
BILLS TO REDEEM. 377 
 
 Parties to — Complainants. 
 
 special case may exist, in which snch creditors would be enti- 
 tled to redeem ; as, for example, if the trustees should collude 
 with tlie mortgagee, or should refuse to sue, or should be in- 
 solvent, (a) In such a case the bill should be brought in be- 
 half of all the creditors; for a few could not redeem for their 
 own benefit. (J) 
 
 Where the mortgagor has conveyed the estate, subject to the 
 mortgage, and the grantee is to pay off the mortgage, he may 
 maintain a suit to redeem, without making the mortgagor a 
 party. But if the conveyance be of the whole real estate, ab- 
 solutely free from incumbrances, then the mortgagor should, 
 or at least may, be made a party, in order to be bound by the 
 decree, and to assist in taking the account; he being prima- 
 rily liable to discharge the mortgage. If the assignment is 
 made to several persons jointly, all of them should be parties 
 to the bill to redeem, (c) 
 
 To a bill brought by a second or subsequent mortgagee, to 
 redeem either one or all of the antecedent mortgages, the 
 mortgagor or his heir or other proper representative in the 
 realty, is a necessary party; for it is said the natural decree, 
 in such a ease, is that the second mortgagee shall redeem from 
 the first njOrtgagee, and the mortgagor, or his representatives 
 in the realty, shall redeem from him or stand foreclosed. 
 And a court of equity in such ease, endeavors to make a com- 
 plete decree that shall embrace the whole subject, and deter- 
 mine upon the rights of all the parties interested in the es- 
 tate, {d) But in such a case, it seems that the personal rep- 
 resentative of the mortgagor would not be a necessary party, 
 even though it might, perhaps, be competent to make him a 
 party, (e) 
 
 (a) Troughton v. Binkes, 6 Ves. 573, 575. 
 (6) Id. lb.; 2 Barb. Ch. Pr. 196. 
 
 (c) Palmer v. Earl of Carlisle, 1 Sim. & Stu. 423, 425; True v. Haley 24 
 Maine, 297; Story's Eq. PI. § 183. 
 
 [d] Story's Eq. PI. § 183; Thompson v. Baskerville, 3 Ch. R. 215. 
 (e)Fell V. Brown, 2 Bro. Ch. R. 278; 2 Barb. Ch. Pr. 196, 197; Falk v. 
 
 Clinton, 12 Ves. 58, 59; Holart v. Ahiott, 2 P. Wms. 643. 
 
378 BILLS TO REDEEM. 
 
 Parties to — Defendants. 
 
 Defendants. — In geuei-al terms, it may be stated, that 
 all persons ought to be made parties whose interests or rights 
 may be affected by the decree, (a) The mortgagee is, of 
 course, the only necessary and proper party in all cases, where 
 there is no other outstanding interest under him. If the 
 mortgage is in fee, and the mortgagee is dead, the heirs of 
 the mortgagee, or other persons, in whom the legal estate is 
 vested by devise or otherwise, must be made parties ; because 
 they have the legal title, and are to be bound by the decree. 
 And the personal representatives of the rtiortgagee must also 
 be made parties; because, generally, they are entitled to the 
 mortgage money, when paid, as it is to be returned to the 
 same fund out of which it originally came, (b) But if tlie 
 mortgage is of a term of years, created by the owner of the 
 fee, the. personal representatives of the mortgagee only, with- 
 out the heirs, are the proper parties; for they alone are inter- 
 ested in the term, unless the term has been disposed of in fa- 
 vor of third persons; in which case they also should be made 
 parties, (c) 
 
 When the mortgage has been absolutely assigned by the 
 mortgagee, without the authority and privity of the mort- 
 gagor, it is not necessarj', in a bill brought by the latter to 
 redeem, to make any person but the last assignee a party to 
 the bill, however many mesne assignments have been made; 
 for, in such a case, the last assignee is understood to have con- 
 tracted not only to stand in the place of the original mort- 
 gagee, and to represent him, but also to stand in the place, 
 and as the representative of all the other mesne assignees, 
 until the title was taken by himself; and he may accordingly 
 be decreed to convey, {d) 
 
 (rt) Edwards on Parties, 87-98; Story's Eq. PI. § 188. 
 (6) Story's Eq. PL § 188; Coop. Eq. PI. 37; Anon. 2 Preem. 52; Clarkson 
 V. Bowt/er, 2 Vern. 66; Dexter v. Arnold, 1 Sumner, 109. 
 
 (c) Osbourn v. Fallows, 1 Russ. & Mylne, 741; Coop. Eq. PL 37. ~ 
 
 (d) Hill V. Adams, 2 Atk. 89; Chambers v. Goldwin, 9 Ves. 268, 269; 
 Bishop of Winchester v. Beaver, 3 Ves. 315, 316; Lennnn v. Porter, 2 
 Gray, 473. 
 
BILLS TO REDEEM. 379 
 
 Terms of Redemption. 
 
 But where the mortgagor seeks in his bill an account of 
 rents and profits, or other sums received by the mortgagee 
 before the assignment, the mortgagee should be made a party 
 to the bill, as well as the assignecj for he is a necessary party 
 to the account. («) 
 
 Where the mortgagee has not assigned his whole interest 
 in the mortgaged property, but he retains an interest in it in 
 part, he is a necessary party, as well as the assignee, to a bill 
 to redeem. (5) So, where there are successive mortgages, the 
 second embracing a part only of the estate comprehended i* 
 the first, if the second mortgagee brings a bill to redeem the 
 first mortgage, and the equity of redemption of the mortgagor 
 in the different estates has become vested in different persons, 
 all of them should be made parties to tlie bill, for they are all 
 interested in taking the account, (c) 
 
 Where the mortgagee has assigned his whole interest upon 
 certain trusts, the trustee and cestuis que trust, or beneficia- 
 ries, are equally necessary parties to the bill to redeem, id) 
 
 SECTION V. 
 
 TEEMS OF EEDBMPTION. 
 
 A mortgagor can not redeem without paying what is really 
 due; and where a mortgagee buys in an incumbrance, he will 
 be allowed, as against the mortgagor, all that is due upon it, 
 although he may have bought it for less. But it is otherwise 
 if the heir or trustee of a mortgagor buys in an incumbrance 
 as against subsequent incumbrances and creditors; in which 
 case he can only be allowed what he has paid for the incum- 
 
 (a) Anon. 2 Freem. 69; Lowther v. Carlton, 2 Atk. 139; Story's Eq. PI. 
 §190. 
 (6) Hdbartv. Abhott, 2 P. Wma. 643; Norrishv. Marshall, 5 Mad. 475. 
 
 (c) Palk V. Clinton, 12 Ves. 48; Cholmondeley v. Clinton, 2 Jac. & 
 Walk. 134; Story's Eq. PI. § 191. 
 
 (d) Whistler v. Webb, Bumb. 53; Wetherell v. Collins, 3 Mad. 255; 
 Drew V. Harman, 5 Price, 319. 
 
380 BILLS TO REDEEM. 
 
 Terma of Redemption. 
 
 trance, {a) A mortgagor filing a bill to redeem must pay 
 the costs of persons defendants claiming under the mortgagee,; 
 upon the principle that, at law, the mortgage being forfeited,, 
 the mortgagee is at liberty to deal with it as his own prop- 
 erty, ih) 
 
 As a general rule, a party coming into a court of equity to 
 redeem, pays costs to the defendant, in addition to the amount 
 due upon the mortgage, although he obtains the relief prayed 
 for; (c) yet if the defendant improperly resists the claim of 
 the complainant to redeem, or sets up an unconscientious de- 
 fense, he will be refused his costs, and may be compelled to 
 pay costs to the adverse party, in the discretion of the court, {d) 
 
 There can be no redemption without an allegation of pay- 
 ments, or a tender of the mortgage debt and interest, {e) But 
 a bill for redemption, which sets forth a liquidation by the 
 parties of the amount due, and a tender and refusal thereof, 
 was held not to be defective for want of an ofier to pay ■^^hat 
 should be found due on account. {/) 
 
 Payment may be luade or tendered after the day named in 
 the mortgage, {g) Any attempt to limit or fetter the right to 
 redeem will be held void, {h) 
 
 If several are interested in the equity of redemption, and 
 only one is willing to redeem, he must pay the whole mort- 
 gage debt, [i) 
 
 The tender of the amount due must be absolute; where the 
 
 (a) Darcey v. Hall, 1 Vern. 18; Hosier v. Norton. 83 lU. 519. 
 (6) 2 Barb. Ch. Pr. 199; Harper v. Ely, 70 111. 581. 
 
 (c) Vroom v. Ditmas, 4 Paige, Ch. 526; Benedict v. Gillman, lb. 58; 
 Slee V. Manhattan Co. lb. 49. 
 
 (d) Id. lb.; 2 Barb. Ch. Pr. 199. 
 
 (e) Saunders v. Frost, 5 Pick. 259; Bank of South Carolina v. Rose, 1 
 Strobh. Bq. 257; Hooper v. Bailey, 28 Miss. 328. 
 
 (/ ) Barton v. May, 8 Sandf. Ch. R. 450. 
 
 Ig) Rogan v. Walker, 1 Wis. 527. 
 
 (h) Robinson v. Farelly, 10 Ala. 472; Henry v. Davis, 7 Johns. Ch. 40; 
 Clark V. Henry, 2 Cow. 324; Wright v. Bates, 13 Vt. 341; Dougherty v. 
 Colgan, 6 Gill & J. 275. 
 
 (t) Gibson V. Crehone, 5 Pick. 146; Taylor v. Porter, 7 Mass. 355; Smith 
 V. Kelley, 27 Maine, 237. 
 
BILLS TO REDEEM. 8S1 
 
 Frame of BiU. 
 
 complainant oflfered to paj' if the defendant would re-assign 
 andtransf&r to him, it was held insufficient; (a) and not only 
 origina:! consideration, but subsequent advances made by the 
 the mortgagee, must be tendered ; (5) nor can the mortgagor 
 insist upon a release, (c) 
 
 A party seeking to redeem a mortgage tainted with usury, 
 will be required to pay legal interest, on the principle that he 
 wlio asks equitable relief should do equity, and equity would 
 require liim to pay legal interest, {d) 
 
 It is essential to a bill to redeem a mortgage, that the com- 
 plainant should offer to pay the debt, interest and costs, (e) 
 But it is not essential that he should pay the money due be- 
 fore filing his bill, or that he make any allegation of such 
 offer. Such an offer would, however, entitle him to costs and 
 a suspension of interest. (/") 
 
 SECTION VI. 
 
 FRAME OF BILL. 
 
 A bill to redeem may properly be framed with a double 
 aspect, so that the complainant may avail himself of a tender 
 if his proof thereon shall be sufficient, or, failing in that, pray 
 an account and be permitted to pay the amount found due. 
 Eegnlarly, however, the prayer should be ill the alternative, {g) 
 
 The complainant should offer in his bill to pay the 
 amount due the defendant. (A) 
 
 Where another person than the mortgagor files a bill to re- 
 deem mortgaged premises, the bill must show that eomplain- 
 
 (a) Wendell v. :Neio Hampshire Bank, 9 N. H. 404. 
 ^ (6) Ogle V. Ship, 1 A. K. Marsh. 287; see Brown v. Gaffney, 32 111. 251. 
 
 (c) Loring v. Cook, 3 Pick. 48. 
 
 [d) Smjder v. GrisivoW, 37 111. 216; Ciishman v. Sutphen, 42 III. 256; 
 see Gerrish v. Black, 104 Mass. 400; Parkhurst v. Cummings, 56 Maine, 
 155. 
 
 («) Beekman v. Frost, 18 Johns. 144; S. C. 1 Johns. Ch. R. 288. 
 (/) Barnard v. Cushman, 35 111. 4-52; Dioen v. Blake, 44 111. 135. 
 ig) Gooding v. Rilei/, 50 N. H. 400. 
 {h) Beekman y. Frost, 18 Johns. 148; S. C. 1 Johns. Ch. R. 288. 
 
382 BILLS TO REDEEM. 
 
 Bill by Heirs-at-law of Mortgagor against Mortgagee. 
 
 ant has title, and its derivation, and the interest claimed, so 
 that the defendant may admit or deny it, or refer the ques- 
 tion to the court by demurrer, (a) 
 
 Where a grantor in a deed of trnSt, after the maturity of 
 the note secured, tenders the amount due thereon to the bus- 
 iness manager of the payee, in whose hands the note then is, 
 and the tender is refused, a bill to redeem by the debtor, may 
 be properly filed. (J) 
 
 JV^o. 160. JSill hy heirs-at-law of mortgagor, against mort- 
 gagee^ to redeem. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 To the Circuit Conrt for the County of . In Chancery. 
 
 Tour orators, A B and B B, of, etc., respectfully represent 
 unto this honorable court, that they are the sons and only 
 heirs-at-law of C B, late of, etc., deceased; that the said C B, 
 in his life-time, to secure the payment of the principal sum 
 and interest of one certain promissory note for the sum of 
 
 dollars, bearing date, etc., and payable after date, 
 
 with interest at the rate of per cent, per annum, signed 
 
 by the said C B, and payable to one E F, the defendant tiere- 
 inafter named, on, etc., by a mortgage deed of that date, con- 
 veyed to the said E F in fee simple, the following described 
 real property, situate and being in the county of— — , in the 
 State of , to wit {here inseH descriptiori): subject, how- 
 ever, to a condition of defeasance upon the payment of the 
 principal sum and interest aforesaid, according to the tenor 
 and effect of the said promissory note; which said mortgage 
 deed was, on, etc., filed for record in the recorder's ofiice of 
 
 the said county of ; as by the said mortgage deed, now in 
 
 the possession or under the control of the defendant, will, 
 when produced, appear; a copy of which is hereto attached 
 and marked " Exhibit A," and is made a part of this bill. 
 
 Your oratoi-s further represent that the principal sum ancf 
 interest of the said promissory note was not paid at the time 
 the same became due, whereby the estate of the defendant in 
 
 (a) Smith v. Austin, 9 Mich. 465. See also on this subject, Sandford v. 
 Flint, 24 Mich. 27; Avery v. Ryereon, 34 Michi 862; Reynolds v. Green, 
 10 Mich. 355; Hoffman a, Har.rington', 33 Mich. 392. 
 
 (6) Willemm v. Dunn, 93 111. 512, 
 
BILLS TO REDEEM. 383 
 
 Bill by Heirs- at-law of Mortgagor against Mortgagee. 
 
 the said premises became absolute at law; whereupon the de- 
 fendant entered into possession of the same, and the receipts 
 of tlie rents and profits thereof, and still retains the same. 
 
 Your orators further represent, that the said C B, on, etc., 
 departed this life, leaving yonr orators, then infants under 
 ihe age of twenty-one years, his sons and only heirs-at-law; 
 that yonr orator, A B, on, etc., attained the age of twenty- 
 one years, and your orator B B, attained thesame age on, etc.; 
 that your orators have, from time to time since their majority, 
 applied to the defendant, E F, to be let in to redeem tlie said 
 mortgaged premises; but there being a considerable amount 
 due upon the said mortgage, they were not then able to pay, 
 and the defendant refused to permit your orators to redeem 
 the said premises on any other terms than a full payment of 
 all the money which he alleged to be due him, without de- 
 ducting the rents and profits received by him while he held 
 the possession of said premises. 
 
 Your orators further represent, that the interest of the said 
 principal sura of — ^- dollars, and all, or the greater part of the 
 principal, have been satisfied and paid out of the rents and 
 profits of the said mortgaged premises, received by the de- 
 fendant, which are quite considerable; and your orators have 
 lately renewed their requests to the defendant, to permit 
 them to redeem said premises, and to enable your orators to 
 do so, to account with them for the rents and profits of the 
 said premises received by the defendant during the time he 
 has been in the possession of the same, which the defendant 
 refused to do, pretending that your orators have no equity of 
 redemption in the said premises; 
 
 Forasmuch, therefore, as your orators are without remedy 
 in the premises, except in a court of equity; and to the end 
 that the said C D, who is made a party defendant to this bill, 
 may be required to make full and direct answer to the same, 
 but not under oath, the answer iinder oath being hereiy 
 waived,' and especially that he may be compelled to fully and 
 particularly answer and set forth whether any, and what part, 
 of the said principal sum and interest of the said promissory 
 note, is now due and owing to him on the security of the 
 said mortgaged premises; and particularly how he makes out 
 and computes the same; and whether the yearly rents and 
 profits of the said premises, since the defendant has been in 
 possession thereof, have not been much more, and how much, 
 than suflBcient to pay the interest due on the said principal 
 sum, and all, or a considerable, and what, part thereof, or 
 how otherwise; and that the defendant may answer and fully 
 
384 BILLS TO REDEEM. 
 
 To Redeem from a Deed Absolute on its Faxje. 
 
 set forth at what yearly rent or rents the said mortgaged 
 premises have, or might have, been let, since he has been in 
 possession thereof; and whether he has not, or, without liis 
 willful neglect or default, might not have received the whole 
 of the rents and profits of the said mortgaged premises, since 
 he has been in possession thereof, and if not, why not; and 
 that an account may be taken, under the direction of the 
 court, of what is now due and owing to the defendant for the 
 principal sum and interest aforesaid; and that an aijcount 
 may be taken of the rents and profits of the said premises, 
 received .by the defendant, or by any other person on his' be- 
 half, or which, without his willful neglect or default, might 
 have been received by him since he entered into the posses- 
 sion of said premises; and that in taking such account, 
 rests may be made, from time to time, when and as the rents 
 and profits shall appear to have exceeded the interest in ar- 
 rear; and that upon the payment by your orators of wliat, if 
 anything, shall be found remaining due to the defendant, in 
 respect of the said principal sum and interest, which your or- 
 ators hereby offer to pay, the defendant n)ay be decreed to 
 surrender and deliver up the possession of the said mortgaged 
 premises to your orators; and that the defendant may be com- 
 pelled to release said mortgage npon the records of said 
 county; and that your orators- may have such other and fur- 
 ther relief as equity may require, and to the honorable court 
 shall seem meet. 
 
 {Add prayer for process.) 
 
 Sol. for complainant. 
 
 {Attach ''Exhibit J..") 
 
 Wo. 161. Bill to redeem from a deed absohite on Its face, 
 hut which was intended as a mortgage. 
 
 State of Mioiiigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Your orator, A B, of, etc., respectfully represents unto 
 the court, that on, etc., your orator being indebted unto one 
 C D, of, etc., the defendant hereinafter named, in the sum of 
 
 dollars, to secure the same, with interest thereon at tlie 
 
 rate of — per cent, per annum, to be paid on, etc., by an ab- 
 solute deed of conveyance of that date, conveyed to the said 
 C D in fee simple, the following described real property, to 
 vi\i{IIere insert the descriptiov^: which , said deed was, on, 
 
BILLS TO REDEEM. 385 
 
 To Redeem from a Deed Absolute on its Face. 
 
 etc., duly filed for record- in the recorder's office of the said 
 
 county of ;.as by the said deed, now in the possession or 
 
 under the control of the said G D will, wlien produced, ap- 
 pear; a copy of wliich is hereto attached, and marked 
 "Exhibit A," and is made a part of tliis bill of complaint. 
 
 Yourorator further represents, that the said deed of convey- 
 ance, although appearing to be absolution its face, was not 
 intended to be such by your orator and the said D, but on 
 the contrary thereof, it was expressly agreed and understood 
 between them, that the same, and the said premises thereby 
 conveyed, were to be held by the said D simply- as a secur- 
 ity for .the payment of the said sum of money, and interest as 
 aforesaid; and that upon the payment of that sum and inter- 
 est to the said C D, the said CD would reconvey the said 
 premises to your orator by an absolute deed. 
 
 Tour orator farther represents that the said C D, on etc., 
 entered into the possession of the said premises^ and the re- 
 ceipts of the rents and profits thereof, and still retains the 
 same. 
 
 Your orator further represents, that he has paid all the in- 
 terest due on the said sum of dollars, to the said CD, 
 
 from the date of the said deed until^ etc., when the said C D- 
 refused to receive further interests thereon from your orator; 
 that your orator has always been, wnd still is, ready to pay 
 the said C D what is due to him for principal and interest 
 on tile said sum of money; and your orator well hoped tliat 
 the said C D would have received tlie same, and that he 
 would reconvey to your orator the said premises as in justice 
 and equity he ought to have done. 
 
 But now so it is, may it please your honor, lie, the said C 
 D, in order to deprive and defeat your orator of the benefit 
 of redeeming the said premises, does pretend ,and give out 
 that your orator did not execute the said deed of conveyance 
 to the said C D as'a security for the repayment of the said 
 sum of money, with interest as aforesaid, but does pretend 
 
 that the said sum of dollars was paid to your orator in 
 
 consideration of tlie absolute purchase of the said premises; 
 and that the said deed was not intended between the parties 
 thereto to be a mere security for the said sum of money, and 
 interest as aforesaid; whereas, your orator charges the 
 contrary of such pretenses to be the truth; and upon 
 the pretenses aforesaid, the said C D refuses to come to 
 any manner of account with your orator, or to reconvey 
 the said premises to him, although , your orator has fre- 
 25 , - . ,. 
 
386 BILLS TO REDEEM. 
 
 To Redeem Goods Deposited for Money Lent. 
 
 quently, and in a friendly manner, applied to him for that 
 purpose, and oifered to pay him whatever, if anything, should 
 be found to be due to the said C D upon au account bein^ 
 taken with reference to the said transaction. AU of which 
 actinnjs, doings and y)retenses «f the said C D are contrary 
 to equity and good conscience, and tend to the manifest wrong, 
 injury and oppression of your orator. 
 
 Forasmuch, thereforev; as your orator is without remedy 
 in the premises, except in a court of equity, and to the end 
 that the said C D, who is made a party defendant to this 
 bill, may be required to make full and direct answer tc the 
 same, but not under oath, the ansioer under oath being 
 hereby waived/ and tliat Ati account may be taken under the 
 direction of this lionoraible court, of wiiat is now due and 
 owing to the defendant for the principal sum and interest 
 aforesaid; and that an account may also be taken of the 
 rents and profits of the said premises, received by the de- 
 fendant, or by any other person on his behalf, or which, 
 witliout his willful neglect or default, miglit have been re- 
 ceived by him since he entered into the possession of said 
 premises; and that, in taking such account, rests may be 
 made from time to time, when and as the rents and profits 
 shall appear to have exceeded the interest in ai-rear; and 
 that upon the payment by your orator of what, if anything 
 shall be found remaining dae to the defendant in respect 
 of tlie said principal sum and interest, which your orator 
 hereby offers to pay, tiie defendant may be decreed to surren- 
 der and deliver up the possession of the said premises to 
 your orator; and that the defendant may be compelled to re- 
 convey the said premises to your orator by sufficient and prop- 
 er deed of conveyance in fee; and that he be compelled to 
 surrender to your orator all deeds, writings and tax receipts 
 pertaining to said premises-; and that your orator may have 
 such other and further relief as equity may require and to 
 your honor shall seem meet. 
 
 May it please, etc. {Pray /or process as vn No.llQ, ante. ) 
 
 Wo. 162. Bill to redeem goods whioh %oere deposited as a 
 security for money lent. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Your orator, A B, of, etc., respectfully represents unto the 
 
BILLS TO REDEEM. 887 
 
 To Redeem Goods Deposited foi' Money Lent. 
 
 court, that your orator having occasion for a sum of money 
 for the purpose of his business, made application to one D, 
 of, etc., the defendant hereinafter named, to lend him the 
 
 same, and thereupon the said O D, on or about , advanced 
 
 and lent to your orator the sum of dollars, and in order 
 
 to secure the repayment thereof, with interest at tlie rate of 
 — per cent, per annum, your orator deposited with the defend- 
 ant the following described property, to wit {Here describe 
 
 it): which was of the value of dollars and upwards, and 
 
 at the same time executed and delivered to the defendant a 
 hill of sale of the said goods and chattels so deposited with 
 him, but it was not meant and intended thereby, either by 
 your orator or tlie defendant, that the said transaction should 
 amount to an absolute sale of the said goods and chattels 
 to the defendant, but it was expressly agreed between your 
 orator and the defendant that your orator should, neverthe- 
 less, be at liberty to redeem tlie same. 
 
 And your orator further represents, that being desirous to 
 redeem the said goods and chattels, he has repeatedly applied 
 to the defendant and has offered to repay him the said sum 
 
 of dollars, with lawful interest thereon, on liaving said 
 
 goods and chattels re-delivered to him; with which just and 
 reasonable requests your orator well hoped that the defendant 
 would have complied, as in justice and equity he ought to have 
 done. But now so it is, may it please your honor, he, the 
 said C D, denies that said property was delivered to him as a 
 security, and refuses to allow your orator to redeem the same, 
 or to re-deliver the said property to your o ator. 
 
 -Forasmuch, therefore, as your orator is without adequate 
 remedy in the premises, except in a court of equity; and to 
 the end that the said C D, who is made party defendant to 
 this bill, may be required to make full and direct answer to 
 the same, but not under oath, the answer under oath being 
 hereby waived,' and that an account may be taken of what is 
 due to the defendant, for principal and interest, in respect to 
 
 the said loan of -dollars; and that upon payment thereof 
 
 by your orator, which he hereby otfers to pay, the defendant 
 may be decreed to deliver over to your orator the said goods 
 and chattels so deposited with him as aforesaid; and that your 
 orator may have such other and further relief in the premises 
 as equity may require and to the court shall seem meet. 
 
 {Pray process.) — : 
 
 Sol. for complainant. 
 
388 BILLS TO REDEEM. 
 
 To Set aside a Decree of Foreclosure. 
 
 No. 163. Bill to set aside a decree of foreclosure, etc., hy 
 heir of mortgagor against mortgagee. 
 
 State op Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the County of . In Cliaiiceiy. 
 
 Your orator, AB, of, etc., respectfully represents unto this 
 honorable court, that B B, late of, etc., now deceased, in his life- 
 time, on, etc., executed a mortgage deed in fee simple to 07ie C 
 D, the defendant hereinafter named, upon the following de- 
 scribed premises to wit {Here insert description): wiiich said 
 mortgage was made to secure the payment of a certain prom- 
 issory note of the same date, for the su m of dollars, payable 
 
 to the defendant after date; which said mortgage was re- 
 corded in the recorder's office of said county, on, etc., as will 
 more fully appear from a copy of said mortgage hereto 
 attached and marked " Exhibit A." 
 
 Your orator further represents, that the said B B depart- 
 ed this life on etc., leaviijg your orator, his son and only 
 heir at law, then of about the age of years. 
 
 Your orator further represents, that during his minority, 
 and on, etc., the defendant tiled his bill of complaint in this 
 court against your orator, for a foreclosure of his right of re- 
 demption in the said mortgaged premises; but your orator 
 was not represented in snch bill to be then an infant; and 
 the defendant caused and procured one EF, since deceased, 
 who had acted as the solicitor in the management of your 
 orator's said father's- aifairs in his life-time, to put in an an- 
 swer in the name of your orator, and without ever acquainting 
 your orator or any of his friends or relations thereof; in 
 which said answer a much greater sum was stated to be due 
 from your orator, upon the said promissory note and mort- 
 gage to the defendant, than in fact was really owing to him, 
 and for which it was untruly stated that the said mortgaged 
 premises were an insutficient security; and in consequence 
 of such answer being put in, the defendant afterward, on, 
 etc., in conjunction with the said EF, obtained an absolute 
 decree of foreclosure against your orator; which your orator 
 has only lately discov'ered, and of which he had no notice; 
 and in which said decree no day was given to your orator, who 
 was an infant when the same, was rendered, to redeem when 
 he became of the age of twenty-one years; as by the record 
 and proceedings of the said foreclosure now remaining in 
 this court, reference thereto being had, will more fully 
 appear. 
 
BILLS TO REDEEM. 389 
 
 To Set aside a Decree of Foreclosure. 
 
 Your orator further represents, that he attained the age of 
 twenty-one years on, etc.; and shortly afterward, having 
 discovered that such transactions had taken place during his 
 minority as aforesaid, by himself and his agent represented 
 tlie same to tlie defendant, and requested him to deliver up 
 possession of the said mortgaged premises to your orator, upon 
 being paid the principal sum and interest, if any, actually 
 and fairly due thereon, which amount your orator tendered, 
 and has always been ready to p.ay, and which would have 
 been paid by the personal representatives of the said B B, 
 out of his personal assets, during your orator's minority, had 
 any application been made for that purpose, but this the de- 
 fendant refused to do. 
 
 Forasmuch, therefore, as your orator is witliout rerftedy in 
 tlie premises, except in a court of equity; and to the end that 
 the said C D, who is made party defendant to this bill, may 
 be required to make full and direct answer to the same, but not 
 under oath, the answer under oath hehig hereby waived,' and 
 that the said decree of foreclosure may be set aside, and be de- 
 clared to be null and void; and that an account may be taken 
 of what, if anything, is now due to the defendant for principal 
 and interest on said promissory note and mortgage; and that 
 an account may also be taken of the rents and profits of said 
 mortgaged premises, which have or might have been received 
 by or on behalf of the defendant since he came in possession 
 thereof; and if the same shall appear to have been more than 
 the principal and interest due, then that the residue thereof 
 may be decreed to be paid to your orator, and that your ora- 
 tor may be at liberty to redeem the said mortgaged premises 
 on payment of the principal sum and interest, if any, re- 
 maining due on the said security; and that the defendant 
 may be decreed, on being paid such principal sum and inter- 
 est, which your orator hereby offers to pay, to deliver up the 
 possession of said mortgaged premises, free from all encum- 
 brances, to your orator; and that the said mortgage may be 
 fully satisfied and released of record; and that your orator 
 may have such other and further relief in the premises as 
 equity may require and to the court shall seem meet. 
 
 {Pray process.) 
 
 Sol. for complainant. 
 
390 BILLS TO REDEEM. 
 
 Decree. 
 
 SECTION VII. 
 
 DECKEB. 
 
 If the mortgagor is permitted to redeem, the decree directs 
 a reference to commissioner to ascertain and report the amount 
 due for principal and interest, and orders the complainant to 
 pay that amount within a specified time after the confirmation 
 of the master's report, together with the costs; and that upon 
 his so doing, the mortgagor shall convey to him the mort- 
 gaged premises. And it directs that upon the complainant's 
 default, the bill be dismissed with costs, {a) 
 
 The time allowed for the redemption is not fixed and cer- 
 tain, but rests in the sound discretion of the court, to be 
 regulated by circumstances. (J) And, in general, the time 
 allowed will not be afterward extended, (o) 
 
 Where the party fails to redeem within the time specified, 
 the usual decree is that the bill be dismissed; and such dis- 
 missal amounts to a bar of the equity of redemption, id) 
 But the dismissal of the bill, for want of prosecution, will 
 not have that efi^ect. (e) / 
 
 The decree of dismissal may be moved for, of course, after 
 the master's report has been confirmed, upon an affidavit that 
 the time has expired, and the money has not been paid. (_/") 
 
 If a party fails to redeem within the time allowed, the us- 
 ual decree is that the bill be dismissed. Such a dismissal is, 
 in effect, a strict foreclosure, and a bar of the equity of re- 
 demption, [g) On a bill filed to cancel a mortgage past due, 
 and in course of foreclosure, if the mortgage is found valid, 
 
 (a) 2 Barb. Ch. Pr. 199. 
 
 (fc) Ferine v. Dunn, 4 Johns. Ch. 140. 
 
 (c)Id. ; Brincherhoff v. Lansing, 4 Johns. Ch. 65; NovoseilsJci v. Wake- 
 field, 17 Ves. 417. 
 
 [d) Ferine v. Dunn, 4 Johns. Ch. 142; Cholmlei/ v. Duchess of Oxford, 
 2 Atk. 267; Bishop of Winchester v. Paine, 11 Ves. 199. 
 
 (e)Handsand v. Hardy, 18 Ves. 460. 
 
 (/) Stuart V. Worrall, 1 Bro. C. C. 581; Seaton on Decrees, 147; McDon- 
 ough V. Shewhridge, 2 Ball & B. 564. 
 
 (g) Goodenow v. Curtis, 33 Mich. 506; Adams v. Cameron, 40 Mich. 506. 
 
BILLS TO REDEEM. 391 
 
 Decree for Redemption. 
 
 the proper decree is, tliat unless tlie redemption money is paid 
 within a specified time, the premises be sold, as in foreclbsnre 
 cases, {a) A court can not, in its decree, extend the time for 
 redemption on a statutory foreclosure. (5) Under proper cir- 
 cumstances, a party failing to sustain a bill to discharji;e a 
 mortgage, may have a decree for redemption, (c) 
 
 Money only can be received by a register of deeds for re- 
 demption of a mortgage foreclosed under the statute, [d) 
 
 An immediate and absolute foreclosure is the consequence 
 of a suit to redeem, {e) 
 
 Unless controverted, a sworn answer binds a complainant.(y) 
 
 J^o. 164. Decree for redem-jption. 
 
 {Caption, and title of cause as in No. 105, ante.) 
 
 This cause having come on to be heard upon the hill of 
 complaint herein, the answer of the defendant thereto, the 
 replication of the complainant to such answer, and the proofs 
 taken in said cause, and having been argued by counsel for 
 the respective parties; and the court being fully advised in 
 the premises, doth find : that the allegations in tlie said bill 
 contained are true as therein stated; and that the equities of 
 this cause are with the complainant. 
 
 It is therefore ordered, adjudged and decreed, by the court, 
 that this cause be referred to a commissioner of this court, 
 to take an account of what is due to the defendant I'or 
 principal and interest on the said mortgaged indebtedness in 
 the bill of complaint mentioned; and also to take an account 
 of the rents and profits of the said mortgaged premises, wliicli 
 have come to the hands of the defendant, or of any otlier per- 
 son or persons by his order, or for his use, or which he, with- 
 out his willful default, might have received; and what shall 
 
 (d) Fosdich V. Van Husan, 21 Mich. 668; Goodenow v. Curtis, 33 Mich. 
 606; Gravers. Fox, 36 Mich. 461. 
 
 (i) Cameron v. Adams, 31 Mich. 426. 
 
 (c) Parks V. Allen, 42 Mich. 482. 
 
 (S) Woodbury v. Lewis, Walk. Ch. 266; Carter y. Lewis, 27 Mich 241. 
 
 (e) Adams v. Cameron, 40 Mich. 509. 
 
 {f)MattesonY. Morris, 40 Mich. 62; Robinson v. Cromelein, 15 Mich. 
 316; Schwarz v. Wendell, Walk. Ch. 267; see, also, on decree, Curtis v. 
 Sheldon, 47 Mich.;— Avery v. Ryerson, §4 Mich. 363. 
 
392 BILLS TO REDEEM. 
 
 Decree for Redemption. 
 
 be coming on the said account of rents and profits, is to be 
 deducted out of what shall be found due to .the defendant for 
 principal and interest. And for the bettertfaking of the said 
 account, the parties are to produce before, and leave with the 
 said commissioner, all d^eds, books, papers, tax receipts, and 
 writings in their possession or power, relating thereto, and 
 are to be examined on oath as the said commissioner shall di- 
 rect. And the said commissioner will cause to come before 
 him, all such witnesses whose testimony he may deem neces- 
 sary in the taking of the said accounts, and examine them 
 upon oath and interrogatories touching the matters aforesaid. 
 And what upon the balatice of the said account shall be certi- 
 fied to be due to the defendant, for his principal and interest, 
 and costs, it is ordered^ adjudged and decreed, that the com- 
 plainant do pay to the defendant within after the said 
 
 commissioner shall have made his report, and the same shall 
 have been confirmed; and that upon such payment being 
 made, the defendant do re-surrender the said mortgaged prem- 
 ises, to wit {Here describe the premises): -unto the complain- 
 ant, or uTito such person or persons as he shall direct, free and 
 clear of all incumbrance done by him, or any person claiming 
 iiy, from, or under him, and deliver unto the complainant all 
 deeds and writings in his custody or power, relating to the 
 said mortgaged premises. But in defaultof the complainants 
 paying unto the defendant what shall be so certified to be due 
 him for principal, interest and costs as aforesaid, after such 
 deductions made thereout as aforesaid, at the time above 
 mentioned, it is ordered, adjudged and decreed, that the com- 
 plainant's bill do from thenceforth, stand dismissed out of 
 this court with costs to be taxed. 
 
BILLS TO FORECLOSE MORTGAGES. 393 
 
 General Nature of. 
 
 CHAPTEE XXVIII. 
 
 BILLS TO FORECLOSE MOETGAGES. 
 
 Section 1. Gestbbal Nature of. 
 
 2. When Proper. 
 
 3. Parties. 
 
 4. Frame of Bill. 
 
 5. Practice on Foreclosure Bills. 
 
 6. Defenses to. 
 
 7. Decrees and Sale. 
 
 8. Surplus and Dbpiciency. 
 
 9. Installment Dub, Proceedings on. 
 
 SECTION I. 
 
 GENEKAL NATURE OF. 
 
 A foreclosure in equity is a proceeding by which the mort- 
 gagor's right of redemption in the mortgaged premises is for- 
 ever barred and foreclosed. This takes place when the mort- 
 gagor has forfeited his estate by non-payment of the money 
 due on the mortgage at the time appointed, but still retains 
 the equity of redemption; in such case the mortgagee may 
 file a bill in a court of equity, to compel the mortgagor to re- 
 deem his estate presently, or, in default thereof, to be forever 
 closed or barred from any right of redemption. 
 
 There are two general methods of foreclosing an equity of 
 redemption after a breach of condition, through the medium 
 of a bill in chancery. The one a strict yoreclosiire, a,s \t is 
 commonly called, whereby, after certain proceedings, the 
 mortgagee is adjudged absolute owner of the property', to 
 which he had before only a conditiopal or defeasible title; the 
 other, and the most usual mode, a sale of tkeproperty under 
 the direction of an officer of the court, in which case the pro- 
 
394 BILLS TO FORECLOSE MORTGAGES. 
 
 When Proper. 
 
 ceeds are applied to the discharge of incumbrances according 
 to priority, and the balance, if any, paid over to the mort- 
 gagor. 
 
 The statute of Michigan (a) has also provided a mode of 
 foreclosure of mortgages by advertisement. But this statu- 
 tory proceeding can not be resorted to safely in every instance. 
 And it may be remarked, generally, that where there are nu- 
 merous or conflicting interests to be affected, or any compli- 
 cation, the safest mode of foreclosure is by bill in chancery. 
 
 SECTION IL 
 
 WHEN PEOPEE. 
 
 If the mortgagor has made default in the. payment of the 
 money due according to the terms of the mortgage, or has in- 
 curred a forfeiture by reason of any other provision of the 
 instrument, the mortgagee may file his bill to foreclose. 
 
 The legal owner of the debt is the legal holder of the mort- 
 gage. Oiily the legal holder of a mortgage can foreclose it 
 at law. (b) And after a bill is filed, and is pending, no pro- 
 ceedings can be had at law for the recovery of the debt se- 
 cured by mortgage, or any part of the same, unless permitted 
 by the court, (c) And the court will only grant permission 
 in unusual cases, {d) But the commencement of a suit at law 
 on a bond or note accompanying a mortgage, will not prevent 
 the filing of a bill for foreclosure. Still, if a party after com- 
 mencing such suit, begins foreclosure proceedings, he can 
 not proceed with his suit at law without the court's permis- 
 sion, (e) 
 
 A pending foreclosure iu chancery, is no defense to a suit 
 
 (a) Comp. L. 187 1 § 6912. 
 (6) Lee v. Clary, 38 Mich. 223. 
 
 (c) Comp. L. 1871, § 5149; JoslinY. Millspaugh, '27 Mich. 517; Innes 
 V. Stewart, 36 Mich. 285; Goodrich v. White, 39 Mich. 489. 
 {d) Sui/dam v. Bartle, 9 Paige, 294. 
 {e)Suydam v. Bartle, 9 Paige, 294; Engle y. Underhill, 8 Edw.251. 
 
BILLS TO FORECLOSE MORTGAGES. Sdb 
 
 When Proper. 
 
 at law, on tlie merits. But, as tlie legal proceeding is forbid- 
 den without leave of the court, proceedings may be stayed in 
 the suit at law before trial, on motion, (a) 
 
 The statute provides, {b) that if it appears that any judg- 
 ment has been obtained in a suit at law, for the moneys de- 
 manded by a bill of foreclosure, or any part thereof, no pro- 
 ceedings shall be had in such case, unless to an execution 
 against tlie property of the defendant in such judgment, the 
 sheriff or other proper officer shall have returned that the ex- 
 ecution is unsatisfied, in whole or in part, and that the de- 
 fendant has no property whereof to satisfy such execution, 
 except the mortgaged premises. 
 
 It is questionable whether this section of the statute ap- 
 plies to the case of a bill to foreclose the defendant's equity 
 of redemption in lands which have been conveyed to the com- 
 plainant by warranty deed, by way ot security, (c) 
 
 If one mortgage secures several distinct payments, those 
 first falling due have no preference over the others. All will 
 be paid ratably out of the land, (d) An assignor may give 
 priority of payment, or he may stipulate that no .interest in 
 the mortgage shall pass, (e) If an assignment is taken as se- 
 curity, it will affect the amount of the decree only, and not 
 the right to maintain the bill. (/") And one owning several 
 mortgages securing the same debt, can foreclose separately 
 until his debt is satisfied, (g) 
 
 A ti-ansfer of a debt, transfers with it the mortgage. And 
 
 (a) Goodrich v. White, 39 Mich. 489; Joslin v. Mill-paugh, 27 Mich. 517. 
 
 (6) Comp. L. 1871, § 5152. See Walk. Ch. 387: Cooper v. BvesUr, 9 
 Mich. 584. 
 
 (c) Maynard v. PereauU, 30 Mich. 160. 
 
 {d) oopery. Uhnmn, Walk. Oh. 251; Wilcox y. Allen, 86 Mich. 161; 
 McCurdy v. Clark, 27 Mich. 445; English v. Carney, 25 Mich. 178; Brown 
 V. Thompson, 29 Mich. 72; Yan AJcen v. GReason, 34 Mich. 477; Miles v. 
 Skinner. 42 Mich. 181; Bridgmany. Johnson, 44 Mich. 491. 
 
 (e) Cooper y. Ulmann, Walk. Ch. 251. 
 
 {f)McKin,ney v. Miller, 19 Mich. 143. 
 
 (g) Ibid. 
 
396 BILLS TO FORECLOSE MORTGAGES. 
 
 When Proper. 
 
 if the debt is extinguished, so is the mortgage, (a) Such an 
 assignment can only be foreclosed in equity, the statute re- 
 quiring assignments of mortgages to be recorded, (b) 
 
 A foreclosure bill will lie when the interest of a mortgage 
 is made payable annually, and is in arrear and this, without 
 waiting for the principal to become due. (c) Bnt when a 
 mortgage was given to secure several notes, made payable at 
 different times, with authority to make sale of the premises 
 upon the non-pay ment at maturity of any of the notes for 
 the satisfaction of such of them as should then he due, if the 
 mortgage resorts to equity to foreclose, he can only obtain 
 foreclosure for such of the notes as shall have become due, as 
 that is the limit of the power of sale in the mortgage, {d) And 
 a foreclosure in such case, for the part of the debt which was 
 due, would, of necessity, be a release of the security for the 
 amount not due. (e) And in such case, the purchase of the 
 premises by the mortgagee and holder of the notes not due, 
 would operate as a satisfaction of the entire debt (^f) 
 
 The assignee of a note is in equity regarded as the pur- 
 chaser of all the securities and remedies attached to it, and 
 may pursue them at his discretion. So may the assignees in 
 succession, of separate parts of the same debt ; and the as- 
 signee of the first due of several notes secured by mortgage 
 has a priority of claim, and can foreclose and sell. And the 
 holder of the other notes can redeem in succession, according 
 to priority, {g) 
 
 A foreclosure of a mortgage can not take place as to one 
 
 (a) Martin v. McReynoMs, 6 Mich. 70; 1:5 Mich 395, 6; Bailyv. Gould, 
 Walk. Ch. 484; Dougherty v. Randall, 3 Mich. 581; Bnygs v. Uannowald, 
 35 Mich. 474. 
 
 (b) Comp. L. § 6913. 
 
 (c) Dederiek v. Barber, 44 Mich. 19; Morganstein v. Kleis, 80 III. 422; 
 Buggies v. S. M. E. R. Co., 5 Chicago Legal News, 110; see Williamsm 
 V. New Albany & S. B. B. Co., 2 Red. Railw. § 235. 
 
 ■(d) Smith V. Smith, 32 111. 198. 
 (e) lb.; see Hards v. Burton, 79 III. 504. 
 (/) Mines v. Moore, 41 III. 273. 
 (g) Vansant v. Allmon, 23 lU. 31. 
 
BILLS TO FORECLOSE MORTGAGES. 397 
 
 When Proper. 
 
 portion of the mortgaged premises, and not as to tlie residue.. 
 So long as the mortgagor is suffered to remain in possession 
 of any part of the premises, his right of redemption to the > 
 whole will continue, {a) 
 
 A mortgage given to secure notes which have been allowed 
 to run after maturity, may be foreclosed at any time within 
 the period of limitations for the recovery of real estate. (J) 
 Equity can give relief for every breach of the condition in a 
 mortgage, whether the parties have seen fit to provide for it 
 or not by power of sale, (c) 
 
 In this State, a mortgage is no longer, as at common law, a 
 grant of the land to tlie mortgagee, defeasible upon condition 
 Subsequent, and to become absolute on failure to pay at the 
 specified day. It conveys no title, legal or equitable to the 
 mortgagee, and gives no right of possession without fore- 
 closure, (d) It is a mere security for the debt, (e) 
 
 A conveyance of all one's right and title in land will pass 
 the grantee's interest in a mortgage on the same, and a full 
 assignment of a mortgage transfers all collateral rights. (_/") 
 An assignee takes subject to all the equities of the original 
 parties to a mortga^-e, which arise out' of the mortgage, {g) 
 but if the security is negotiable paper in the hands of a bona 
 fide owner, the equities do not follow it. [h) A written as- 
 
 (rt) Spring v, Haines, 21 Maine, 126. 
 
 {b)Det. Sav. Bank v. Truesdail, 38 Mich. 431; McKinney v. Miller, 19 
 Mich. 143. 
 
 (c) Butler v. Ladue, 12 Mich. 180; Cowle$ t. Marhle, -37 Mich., 158; see 
 Van Sant v. Almon, 23 III. 31; Hards v. Burton, 79 111. 504; Ottawa N. 
 P. R. Co. V. Murray, 15 111. 336; Harper y. Ely, 56 111. 179. 
 
 (d) Ladue v. D. <& M. R. R, Co. 13 Mich. 394; Caruthers v. Humphrey, 
 12 Mich. 270; Hoffgsetty. Ellis, 11 Mich. $51 ; Lillibridge v. Tregent, 'SO 
 Mich. 105. 
 
 (e) Ibid. 
 
 (/) Byles V. Lawrence, 35 Mich. 458; Niles v. Ransford, 1 Mich. 338; 
 Fletcher y. Carpenter, 37 Mich. 412; Haesclg v. Brown, 34 Micii. 504: 
 Briggs v. Hannowald, 35 Mich. 4"4. 
 
 (ff) Nichols V. Lee, 10 Mich. 526; Terry v. Tuttle, 24 Mich. 206; Judge 
 V. Vogel, 38 Mich. 568; Button v. Ires, 5 Mich. 515; Bloomer v. Hender- 
 son, 8 Mich. 395. 
 
 (h) Reeves v. Scully, Walk. Ch. 248; Cooper v. Ulmann, Walk. Ch. 251; 
 Putton V. Ives, 5 Mich. 515; Lilliehridge v. Tregent, 30 Mich. 105. 
 
393 BILLS TO FORECLOSE MORTGAGES. 
 
 Parties — Comiplainants 
 
 sigiiment is unnecessary to transfer the title to a mortgage, (a) 
 A power of sale is no necessary part of a mortgage, and a 
 defect in it does not affect the validity of the mortgage, (S) 
 
 SECTION III, 
 
 PARTIES. 
 
 Complainants. — It may be stated, as a general rule, that 
 all those who have an interest in the mortgage and may be 
 affected by the decree, are proper parties. One holding the 
 equitable title may foreclose, but the party having the legal 
 title should be made a party, (c) So far as mere legal rights 
 ai"e concerned, tHe only proper parties are the mortgagor and 
 mortgagee, and those who have acquired rights and interests 
 under them subsequent to the mortgage, (c?) 
 
 If the mortgagee alone has any interest, he is of course the 
 only necessary party complainant. If the mortgagee is de- 
 ceased, the bill should be brought in the name of the executor 
 or administrator, and not of the heirs, (e) 
 
 The statute provides (_/) that when any mortgagee of real 
 estate, or any assignee of such mortgage, shall die without 
 having foreclosed the equity of redemption, all the interest in 
 the mortgaged premises conveyed by such mortgage, and the 
 debt secured thereby, shall be considered as personal assets in 
 the hands of the executor or administrator, and he may fore- 
 close the same, and have any other remedy for the collection 
 of such debt which the deceased could have had if living, or 
 
 («) Pease t. Warren, 29 Mich. 9; Thayer v. McGee, 20 Mich. 195. 
 (6) State Bank Bay City v. Chapelle, 40 Mich. 447. 
 
 (c) Martin v. McEeynolds, 6 Mich. 70; Morey v. Forsythe, Walk. Ch. 
 465; Fisher T. Miester, 24 Mich 447. 
 
 (d) Chamberlain v. hyell, 3 Mich. 459. 
 
 (el Roath v. Smith, 5 Conn. 133; Freake v. Horsley, 2 Preem. 180; Brad- 
 show V. Outram, 13 Ves. 234; Griffin v. Lovell, 42 Miss. 402. 
 (/) Comp. L. 1871, § 4412. 
 
BILLS TO FORECLOSE MORTGAGES. 399 
 
 Parties — Befendants. 
 
 may continue any proceeding commenced by the deceased for 
 that purpose. 
 
 A legatee may foreclose a mortgage which has been specif- 
 ically bequeathed, (a) 
 
 If the mortgagee has assigned absolutely, and divested him- 
 self of all interest, he need not be made a party. (Z») 
 
 If the mortgagee has assigned the mortgage as security or 
 pledge for a loan on a less amount than the mortgage, he may, 
 especially where the assignee refuses to proceed, file a bill of 
 foreclosure in liis own name, (c) The assignee also has the 
 right to file a bill in such a case, if he chooses, (d) 
 
 An assignee, who took an assignment merely as a security 
 for a debt, which has been paid, can not maintain a bill of 
 foreclosure, (e) 
 
 Payment of a first mortgage by a second mortgagee, makes 
 him in equity an assignee of tlie prior securities, and entitled 
 to all of the remedies, (f) Partners need not be joined as 
 complainants in the tbreclosure of a mortgage given to only 
 one of the firm as trustee of the partnership. A mort- 
 gage conditioned for the support of the mortgagee by the 
 mortgagor, can not be foreclosed for the benefit of persons who 
 have boarded the mortgagee at the mortgagor's request, {g) 
 
 Defendants. — All persons having an interest in the equity 
 of redemption should be made defendants to a bill of fore- 
 closure. (A) And if the equity of redemption belongs to 
 
 (n) Proctor v Robinson, 3i Micli. 284. 
 
 (b) Whitney v. McKenney, 7 Johns. Ch. 144; Hahn v. Huber, 83 111. 
 243. 
 
 (c) Norton v. Warren, 3 Edw. 106. 
 id) lb. 
 
 (e) Wilbur v. Almy, 12 How. U. S 180. 
 
 (/) Mattison v. Marks. 31 Mich 421; Russell v Howard, 2 McLean, 489; 
 Donner v Fox, 20 Vt. 388. 
 
 {g) Daniels v. Eisenlord, 10 Mich. 454. 
 
 [h) Story's Eq. PI. § 182, 193; tloxie v. Carr, I'Sum. 173; Slade v. Riggs, 
 3 Hare, 35; Coles v. Forrest, lOBea'v. 552; Montgomery v. Brown, 2 Gilm. 
 681; Mulvey v. Gibbons, 87 III. 367; Farmers <& Mechanics Banky. Bron- 
 
400 BILLS TO FORECLOSE MORTGAGES. 
 
 Parties — Defendants. 
 
 difl'erent persons as devisees, or as having charges as legatees 
 thereon, all of them should 'be joined as defendants, (a) And 
 hence the general, though not universal, rule is that all in- 
 cumbrancers should be niade parties, if not indispensable, at 
 least as proper parties to such a bill, whether they are prior 
 or subsequent incumbrancers. (5) 
 
 The mortgagor, unless he has assigned the equity of re- 
 demption, is an indispensable party, and if he has died witli- 
 out transferring or devising the equity of redemption, the 
 heir then becomes a necessary party, and no decree can be 
 entered until the heirs are before the court, (c) 
 
 The wife of the mortgagor, who has joined in the execution 
 of the mortgage, is a necessary party to a proceeding in 
 equity to a foreclosure, {d) ' But upon a foreclosure of a mort- 
 gage given to secure the purchase money for the mortgaged 
 premises, it is not necessary that the wife of the mortgagor 
 should be made a party to the bill, (e) 
 
 The statute {/) says that: " If the mortgage debt be secured 
 by the obligation or other evidence of debt of any other per- 
 son besides the mortgagor, the complainant may make such 
 person a party to the bill, and the court maj' decree payment 
 of the balance of such debt remaining unsatisfied, after a sale 
 of the mortgaged premises, as well against such other person 
 as the mortgagor, and may enforce such decree as in other 
 cases. 
 
 son, 14 Mich. 362; Hortony. Ingeraoll, 13 Mich. 409. But the mortgagee 
 must have notice: Woods v. Love, 27 Mich. 308. 
 
 (a) McGotvn v. Yorks, 6 Johns. Ch. 450. 
 
 (6) Haines v. Beach, 3 Johns. Ch. 459; Ensworth v. Lambert, 4 lb. 605; 
 Cullum V. Batre, 2 Ala. 415; Finley v. Bank of U S. 11 Wheat. 304; 
 Walsh V. Truesdall, 1 Bradwell's App. Ct. R. 126. 
 
 (c) Lane v. Erskine, 13 III. 501; Harvey v. Thornton, 14 111. 217; Marsh 
 v. Green, 79 111. 385; Mich. Ins. Co. v. Brown, 11 Mich. 265. 
 
 (d) Shoemaker v. Gardner, 19 Mich. 96; Leonard v. Villars, 23 111. 377; 
 Wright v. Langley, 36 111. 381; see Pope v. North, 83 ill. 440. 
 
 (e) AuphUttx. Htbbard, 29 Mich. 298; Stephens v. Bichnell, 27 111. 444; 
 Shm-t v; Bauh, 81 111. 509; Fletcher v. Holmes, 32 Ind. 497. 
 
 (/) Comp. L. 1871,§ 5150; see, also, Cratefordv. Edteards, 33 Mich. 35-4; 
 Curtis V. Allen, 9 Paige, 432; Bitrr v; Beers, 24 N. T. 176. 
 
BILLS TO FORECLOSE MORTGAGES. 401 
 
 Parties — Defendants. 
 
 If a person when purchasing premises agrees in the deed to 
 pay existing mortgages on the land, both, he and the mort- 
 gagor maybe treated as principal debtors, and a personal de- 
 cree against either or both may be hud. {a) But where a 
 grantee purchases the premises subject to the incumbrances 
 he does not become personally liable. (5) When the grantee 
 assumes the mortgage, he is not a necessary party unless a 
 personal decfee is sought, (c) 
 
 "When a mortgagor, or other person liable personally for 
 deficiency, shall die, it is proper to make the personal repre- 
 sentatives parties in order to obtain a decree to pay the de- 
 ficiency out of the estat-e in their hands, {d) A purchaser of 
 land from a devisee is a necessary party to a bill for the fore- 
 closure of a mortgage, which had previouslj' been given upon 
 the same premises by the testator, (e) 
 
 Where three notes, payable at different times, were secured 
 by a mortgage, and the first and second notes were assigned to 
 one person, and the third note to another, it was held that on 
 a bill to foreclose the mortgage by the lioMer of the first and 
 second notes, the holder of the third note was a necessary 
 party. (,/ ) 
 
 A mortgagor who is personally liable to the mortgagee for 
 the payment of the debt secured by the mortgage, but who 
 has parted with all his rights and iraterest in the mortgaged 
 premises, is a proper, but not a necessary party to a bill to fore- 
 close the mortgage, {c/) 
 
 (a) Crawford v. Edwards, 33 Mich. 354; Miller v. Thompson, 34 Mich. 
 WiCarlei/v. Fox, d8 Mich. 387; Turner v. McCarty, 22 Mich. 265; 
 Winans v. WilUe, 41 Mich. 264; Higman v. Stewart, 33 Mich. 523; Tay- 
 lor V. Whitmore, 35 Mich. 97. 
 
 (6) Winans v. Wilkie, 41 Mich. 264; Booth v. Conn. Mutual Ins. Co. 43 
 Mich. 299. 
 
 (c) Miller Y. Thompson, 34 Mich. 10. 
 
 (d) Ahbott V. Godfroy Heirs, 1 Mich. 179. 
 
 (e) Ohling v. Luitjens, 32 111. 23; Dunlap v. Wilson, lb. 517; Cutter y. 
 Jones, 52 111. 84. 
 
 (f) Myers V. Wright, 33111. 285. 
 
 (g) Bigelow v. Bush, 6 Paige, Ch. 343; Marsh v- Green, 79 111. 385. 
 
 26 
 
402 BILLS TO FORECLOSE MORTGAGES. 
 
 Parties — Defendants. 
 
 A foreclosure suit is not the proper way to litigate and settle 
 the rights of parties who set up legal titles, which, if valid, 
 are adverse to the title of the mortgagor and mortgagee, (a) 
 But when an adverse claimant owns an interest in the equity 
 of redemption, he may properly he made a party in order to 
 foreclose that interest. {(>) 
 
 If the mortgagor has conveyed the equity of redemption 
 absolutely and without warranty, the mortgaged premises are 
 the primary fund for the payment of the mortgage debt; and 
 the grantee has no right to object that the mortgagor is not 
 made a party to the bill of foreclosure. But where the com- 
 plainant makes a mere surety of the mortgagor for the payment 
 of the debt, a party to the bill, for the purpose of obtaining 
 a decree against such surety, if the mortgaged premises are 
 found to be insufficient to satisfy the debt and costs, such 
 surety has a right to insist that the principal debtor shall be 
 made a party to the suit, if he is within the jurisdiction of 
 the court, but not if the principal debtor is an absentee, and 
 has assigned all his right and interest in theequity of redemp- 
 tion, (c) 
 
 Where the mortgagee has assigned his bond and mortgage, 
 and guaranteed the collection of the debt, the assignee may 
 make him a party to the bill of foreclosure, for the purpose 
 of obtaining a decree over against him for the deficiency, in 
 case the amount of such deficiency should not be collected 
 from the mortgagor, (d) 
 
 All parties to a joint and several note must be made de- 
 fendants to a bill to foreclose a mortgage given to secure the 
 
 (o) Chamherlain v. Lyell, 3 Mich. 448; Wright v. Dudley, 8 Mich. 115; 
 Horton v. Saunders, 13 Mich. 109; Farmers (S- Mechanics Bank v. Branson, 
 14 Mich. 361; Comstock y. Comstock, 24 Mich. 39; see, also, Summers v. 
 Broivley, 28 Mich. 127; Wilkinson v. Green, 34 Mich. 221 ; Tower v. Devine, 
 37 Mich. 443; Wanzer v. Blanchard, 3 Mich. 11; Adams v. Bradley, 12 
 Mich. 346; Allen v. Mills, 26 Mich. 128; Bell v. Pate, 47 Mich. 
 
 (6) Farmers^ and Mechanics Bank v. Branson, 14 Mich. 361; Horton v. 
 Ingersnll, 13 Mich. 109. 
 
 (c) 2 Barb. Ch. Pr. 175; Bigelow v. Bash, 9 Paige, Ch. R. 343. 
 
 (d) Leonard v. Morris, 9 Paige, Ch. 90. 
 
BILLS TO FORECLOSE MORTaAGES. 403 
 
 Frame of BilL 
 
 same, even though the mortgage was made by one of them, (a) 
 Minors whose guardian has assigned a mortgage which he 
 lield for them, need not be made parties by the assignee. (5) 
 A guarantor of the collection of a debt secured by mortgage 
 is not a proper party, (c) But.purchasers of land on execution 
 sale should be made parties, (d) If a mortgage is foreclosed 
 without making subsequent purchasers or incumbrancers par- 
 ties, their rights to redeem are not aifected thereby, (e) To a 
 bill to foreclose against the principal mortgagor, the mort- 
 gagor of another estate, as a collateral security, is a necessary 
 party, (y) If parties are unnecessarily compelled to put in 
 an answer they will be entitled to costs, {g) 
 
 SECTION IV. 
 
 FRAME OF BILL. 
 
 It is proper to remark, by way of caution to the pleader, 
 thatniuch diversity exists in the cases with regard to foreclos- 
 ure suits, since, in most of the States, there are statutes upon 
 the subject, and a line of decisions peculiar to the State. 
 The title in the mortgagor need not be averred in the bill. (A) 
 It is stated in Chancery Rule 91, that in a bill for foreclos- 
 ure or satisfaction of a mortgage, it shall not be necessary to 
 set out at large the interests of several of the defendants who 
 are purchasers of, or who have liens on, the equity of redemp- 
 
 (a) Adams \. Bradley, 12 Mich. 346; Morey v. Forsythe, Walk. 465; 
 Mai-tin v. McEeynolds, 6 Mich. 70; Flint d; Pierre Marquette B. B. Co. 
 V. Gordon, 41 Mich. 420. 
 
 (b) Livingston v. Jones, Har. Ch. 165. 
 
 (c) Johnson v. Shepherd, 35 Mich. 116. 
 
 (d) Woods V. Love, 27 Mich. 308. 
 
 (e) Dtinlap v. Wilson, 32 111. 617; Garden v. Hohart, 2 Sum. 402; Oliver 
 V. Piatt, 3 How. U. S. 333; Miilvey v. Gibbons, 87 III. 367. 
 
 (f) Stokes V. Clendon, 3 Swanst. 150, note; S. C. 2 Bro. Ch. Ca. 275, 
 note. 
 
 ig) U. S. Ins. Co. V. Van Bensselaer, 4 Paige, 85. 
 
 {h) Shed V. Garfield, 5 Vt. 39; Bacine & Miss. B. B. Co. v. Farmers 
 Loan <& Trust Co. 49 111. 331. 
 
404 BILLS TO FORECLOSE MORTGAGES. 
 
 Frame of BUL 
 
 tion in the mortgaged premises, subsequent to the registry or 
 recording of complainant's mortgage, and who claim no right 
 in opposition thereto; but it shall be sufficient for the com- 
 plainant, after setting out his own right and interest in the 
 premises, to state generally that such defendants have or 
 claim some interest in the premises as subsequent purchasers, 
 incumbrancers or otherwise. 
 
 It- is required by statute that it be stated in the bill 
 whether any proceedings have been had at law for the recov- 
 ery of the debt secured by mortgage, or any part thereof, 
 and whether such debt, or any part thereof, has been collected 
 or paid, {a) 
 
 This is also the New York rule, where it seems that the bill 
 must allege that no proceedings at law have been had to re- 
 cover the debt, or if there have been such proceedings, lie 
 must state the nature of them, and that they have been dis- 
 continned, or that tlie remedy at law has been exhausted ; (i) 
 this is a statutory provision. (c) A similar statute seems to 
 exist in Indiana, where it was held that an omission 
 of such a statement is fatal, (c?) 
 
 The language of this statute has been held to refer to suits 
 on the debt, and not to previous ibreclosure proceedings, (e) 
 
 Unless a bill contains the proper averments no proof can 
 be admitted. It must aver the debt to be due, and the 
 assignment has been made. Executors of a mortgage 
 must not only describe themselves as such, but they must 
 allege the death of their testator, and the probate of will, {f) 
 
 In foreclosing a second mortgage, the title obtained throuLch 
 foreclosure of a first mortgage can not be assailed without 
 
 (a) Comp. L. 1871, § 5151. 
 
 (6) Paulson v. Powers, 4 Paige, Ch. 549; Williamson v. Champlin, 1 
 Clarke, 9. 
 
 (c) 2 Barb. Ch. Pr. 178. , 
 
 id) McMullen v. Fiimess, 1 Smith, 73. 
 
 (e) Lee v. Clary, 38 Mich. 22:5. 
 
 (J) Peckham v. Buffam, 11 Mich. 530 ; Covell v. Cole, 16 Mich. 223; 
 Middlesworth v. Nixon, 2 Mich. 425 ; Livingston v. Jones, Hav. Ch. 165 ; 
 HarwoQd v. Underwood, 28 Mich. 427 ; Ford v. Loomis, 33 Mich. 121. 
 
BILLS TO FORECLOSE MORTGAaES. 405 
 
 Frame of Bill. 
 
 special averment, (a) Performance of conditions precedent 
 must be averred, (b) "When it is sought to establish equal 
 priorities between two mortgagees, the bill should set out the 
 facts, (c) Where breach of interest clause is claimed, it is 
 sutiicient if the bill avers tliat the complainant makes his 
 election that the principal shall become due at once. And no 
 notice before commencing suit of the election is essential, (d) 
 Avoidance of a special defense is pleaded by introducing 
 the defense in tlie bill in the form of a pretense, and then 
 adding the reply in the form of a charge. But wlien a bill is 
 not so framed, and a particular defense is set up by the 
 answer, the bill should be amended to meet it. (e) 
 
 In Illinois, it is held that a judgment on a note, secured by 
 mortgage, which remains unsatisfied, is no bar to a proceeding 
 to foreclose, or that a mortgagee may bring ejectment, sue on 
 the note at law, and maintain a bill to foreclose, at the same 
 time; that he may pursue the several remedies until his debt 
 is satisfied, (y) * 
 
 The bill need not allege an indebtedness for which it was 
 given; and if alleged, it need not be proved, (g) 
 
 In bills to foreclose, it is not necessary to set out at length 
 the rights and interests of the defendants who are subsequent 
 purchasers, judgment creditors or other incumbrancers. It is 
 sufficient for tlie complainant, after setting out his own right 
 and interest in the premises, to sta^;e generally that such de- 
 fendants have, or claim to have, some interest in the premises, 
 
 {a) Wurcherer v. Hewitt, 10 Mich. 453; Dawson v. Danhury Bank, 15 
 Mich 489. 
 
 (6) Curtis V. Goodeiiow, 24 Mich. 21. 
 
 {(■■) Van Aken v. Gleason, 34 Mich. 477. 
 
 id) Ives V. Khnhall, 1 Mich. 308; 7 Mich. 69; 18 Mich. 298; 22 Mich. 
 2J5; 36 Mich. 81. 
 
 (e) Connarton v. Mdler, 41 Mich. 608. 
 
 (/) Van Sant v. Allmon, 23 111. 30; Hughes v. Edwards, 9 Wheat. 489; 
 Morrison v. Buckner, Hemp. 442; see, also, Morgan v. Sherwood, 53 111. 
 171. 
 
 (g) Dayy. Perkins, 2 Sandf. Ch. 359; see, also, CollijfSY. Carlile, 13 III. 
 254. 
 
406 BILLS TO FORECLOSE MORTGAGES. 
 
 Bill of Foreclosure. 
 
 as subsequent purchasers or incumbrancers or otherwise, (a) 
 And it has been held that where the bill, unueces.sarilj sets 
 out the rights of the several defendants at length, it may be 
 excepted to for impertinence. (5) 
 
 In a bill in chancery to foreclose a mortgage claimed to have 
 been executed by husband and wife upon land the fee of which 
 was in the latter, the mortgage may be stated according to its 
 legal effect, without stating in detail the various matters 
 which are necessary to a transfer of a married woman's 
 title, (c) 
 
 Jfo. 165. Bill of foredloswre. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the County of -^ . In Chancery. 
 
 Tour orator A B, of the town of county of in 
 
 said State, respectfully shows unto the court that on or about 
 
 the day of in the year of our Lord, one thousand 
 
 eight hundred and C D, of the town of county of 
 
 and State of Michigan, did make and execute, under 
 
 his hand and deliver to your orator a certain note (or bond, as 
 the ease may be), as in and bj' said note, now in the possession 
 of your orator and ready to be produced and proved as this 
 honorable court shall direct, and to which, when proven, 
 your orator for greater certainty, prays leave to refer, will 
 more fully and at large appear. 
 
 2. And your orator further shows unto the court that the 
 
 said C D, on the day of in the year of our Lord one 
 
 thousand eight hundred and in order to secure to your 
 
 orator the payment of the said sum of money mentioned in said 
 
 together with the interest thereon, in manner aforesaid, 
 
 did execute under his hand and seal, acknowledge and deliver 
 
 to a certain indenture of mortgage, bearing date the 
 
 day and year last aforesaid, and tliereby for the consideration 
 
 of dollars, lawful money of the United States, to him in 
 
 hand paid, the receipt whereof was by the said indenture of 
 
 (a) 2 Barb. Ch. Pr. 177. 
 
 (6) lb. Union Ins. Co. v. Van Rensselaer, 4 Paige, Ch. 85. 
 (c) Williams v. Sautter, 55 111. 130; Goltra v. Green, 98 111. 317; West 
 v. Krebaum, 88 111. 263. 
 
BILLS TO FORECLOSE MORTGAGES. 407 
 
 Bill of Foreclosure. 
 
 • 
 mortgage duly confessed and acknowledged, the said C D, 
 the party of the first part, in and to said indenture of mort- 
 gage, did grant, bargain, sell, release, enfeoff and coniirni nu- 
 to A B, the party of the second part, in the said indentni'e 
 and to Ids heirs and assigns J^orever, all the certain pie'ces ur 
 
 parcels of land situated in the of -county of 
 
 and State of Michigan, and described as follows, viz: {Here 
 describe premises.) 
 
 3. Said indenture of mortgag ,^ was iipon the express condition 
 that the same shall be null and void if the said party of the 
 iSrst part, his heirs, executors, or administrators, should and 
 did well and truly pay, or cause to be paid, to said party 
 of the second part, his heirs, executors, administrators or 
 assigns, the said sum of money and interest, according to the 
 terms and conditions of said note, as in and by said mortgage, 
 now in the possession of your orator, ready to be produced 
 and proved as this court shall direct, reference being had 
 thereto, will more fully appear. 
 
 4. The execution of said mortgage was, on the day of 
 
 A. D. 18 — , duly acknowledged by the said defendant (J D, 
 before a'notary public duly authorized to take such acknowl- 
 edgment, the certificate of such acknowledgment being duly 
 indorsed on said mortgage. 
 
 5. And your orator further shows unto the court that 
 
 afterward, to wit : on the day of , in thej'ear of our 
 
 Lord one thousand eight hundred and the said indenture 
 
 of mortgage, together with the certificate of acknowled<r- 
 ment thereof, was in due form of law recorded in the office of 
 
 the register of deeds, in the county of : in liber 
 
 of mortgages, on pages . 
 
 And your orator further shows unto the court, that there 
 has been paid upon said note and mortgage the following 
 sums at the dates mentioned, to wit : (Set ibrth payments if 
 
 a"y-) . 
 
 6. And your orator further shows nnto the court, that 
 there is now due and unpaid on said note and said indent- 
 ure of mortgage, the sum of -, and in said mortgage 
 
 it was expressly agreed that as often as any proceedings be 
 taken to foreclose said mortgage, said party of the first part 
 
 should pay to your orator — ■ — dollars as a reasonable 
 
 solicitor's fee, over and above all legal costs, and your orators 
 claim that by the filing of this bill the same has now become 
 due and payable to your orator in addition to the sum 
 above mentioned. 
 
 7. And your orator further shows that no proceedings at 
 
408 BILLS TO FORECLOSE MORTGAGES. 
 
 Bill of- Foreclosure. 
 
 _ 
 
 law have been had to recover the debt, secured by the said 
 note and mortgaiie, or any part tliereof. 
 
 8. And your orator further shows unto the court that he 
 has caused examinations to be jnade of the record of deeds 
 and mortgages in the office of the register of tlie county of 
 
 wliere said mortgaged premises are situated, and 
 
 from which said several examinations it appears, and your 
 orator expressly charges the fact that (here state names of 
 subsequent incumbrancers, etc.) have or claim to have rights 
 and interests in the premises described in the said indenture 
 of mortgage, or in some part or parts thereof, as subsequent 
 purchasers or incumbrancers or otherwise. 
 
 9. Your orator therefore asks the aid of this court in the 
 premises, and tliat the above named C D, defendant Jierein, 
 may appear and answer this, your orator's bill, without oath 
 (answers on oath being hereby expressly waived), and that he 
 may come to a fair and just account, touching the amount 
 due to 3'our orator upon the said note and indenture 
 of mortgage hereinbefore mentioned and set forth. 
 
 10. And that he or some of them may be decreed to pay 
 forthwith to your ora'or the amount which shall be found 
 to be due to him thereon, and the interest thereon, together 
 with your orator's reasonable costs and charges in this behalf, 
 sustained. ^ 
 
 11. And in default thereof, that the defendants herein 
 named, and each of them, and all persons claiming or to 
 claim from or under them, may be foreclosed and barred of 
 and from all equity of redemption and claim of, in and to 
 said mortgaged premises, and every part and parcel thereof, 
 with the appurtenances. 
 
 12. And that all and singular the said mortgaged premises, 
 with the appurtenances, may be sold by the order and decree 
 and under the direction of this court, and the moneys arising 
 from the sale thereof, so far as shall be necessary, or so far as 
 tlie same shall extend, be applied toward satisfying to your 
 orator the full amount of the moneys so as aforesaid secured, 
 in and by the said note and indenture of mortgage, both 
 principal and interest, if the whole shall be then due and 
 unpaid. 
 
 13. Or if the whole amount shall not be then due, that such 
 part of the said mortgaged premises as may be necessary to 
 discharge the principal and interest moneys then found to be 
 due to him thereon and unpaid, together with your orator's 
 reasonable costs and charges, may be sold as aforesaid, and 
 the proceeds to be applied thereto as aforesaid. 
 
BILLS TO FORECLOSE MORTGAGES. 409 
 
 Bill of Foreclosure. 
 
 14. Or in case it shall appear to this court that the said 
 mortgaged premises are so situated that the sale of the whole 
 will be most beneficial to the parties concerned, that then the 
 whole of the said mortgaged premises with the appurtenances, 
 may be sold as aforesaid, and the proceeds of such sale be ap- 
 plied, as well to the discharge of the principal and interest 
 moneys then due, and your orator's costs and charges, as to- 
 ward the whole or residue of the amount secured by the said 
 note and indenture of mortgage, and not due and payable at 
 the time of such sale, or that this court may direct the balance 
 of the proceeds of such sale, after paying the sum due upon the 
 said note and indenture of mortgage, with your orator's costs 
 and charges, to be put out at interest under the direction of 
 tills court, for the benefit of your orator, to be paid to him as 
 the remainder of said principal and interest moneys shall be- 
 come due and payable, and the surplus, if any, for the benefit 
 of the person or persons who may be entitled thereto. 
 
 15. And that the said defendants and all persons claiming 
 and to claim under them or either of them, or who have come 
 into possession of the said mortgaged premises, or any part or 
 portion thereof during the pendency of this suit, deliver and 
 yield up possession tiiereof to your orator, or to whomsoever 
 shall become the purchaser or purchasers thereof at the said 
 sale, on his, her, or their producing to him or them, or to the 
 person or persons in possession of said mortgaged premises, 
 or any part thereof, the deed or deeds executed by the eom- 
 inissioiier pursuant to such sale as aforesaid, and a certified 
 copy of the order confirming the report of snch sale, after such 
 order has become absolute. 
 
 16. And that the said defendant, C D, pay to your orator 
 any balance that shall remain due to your orator, of the prin- 
 cipal and interest of said note and indenture of mortgage, if 
 the sale of such mortgaged premises as aforesaid fail to pro- 
 duce sufiSoient to pay the whole of said mortgaged debt, and 
 the costs of this suit; and that, in such case, your orator have 
 executed for the collection of such balance and the costs there- 
 on, according to the rules apd practice of this court. 
 
 17. And that your orator may have such other relief or such 
 further relief in the premises as shall be agreeable to equity 
 and good conscience. 
 
 18. May it please the court, the premises being considered, 
 to grant to your orator the writ of subpoena to be issued out 
 of and under seal of this court, to be directed to the said C D, 
 defendant herein, and thereby commanding him and each of 
 them, on a certain day and under certain penalty to be therein 
 
410 BILLS TO FORECLOSE MORTGAGES. 
 
 Practice on Foreclosure Bills— Notice Lis Pendens in Foreclosure. 
 
 inserted, personally to be and appear before this court, tlien 
 and there to answer all and singular the said premises, and to 
 stand to, abide and perform such order and decree therein as 
 this court shall make therein and as shall be agreeable to 
 equity and good conscience. And your orator will ever 
 pray, etc. A B. 
 
 EF, 
 Solicitor for complainant, and of counsel. 
 
 SECTION V. 
 
 PEAOTIOE ON FOEECLOSUEE BILLS. 
 
 Lis pendens. — The statute provides, that " to render the 
 tiling of a bill constructive notice to a purchaser of real estate, 
 it shall be the duty of the complainant to file for record, with 
 the register of deeds of the county in which the lands to be . 
 affected by such constructive notice are sitnated, a notice of 
 the pendency of such suit in chancery, setting forth the title 
 of the cause, and the general object thereof, together with a 
 description of the lands to be affected thereby." (a) The 
 register of deeds records the notice in a book kept in his office 
 for that purpose, and an authenticated copy of the record of 
 such notice is evidence in the courts of the notice and the 
 filing of the same. (5) Of course, if one has actual notice of 
 the pendency of the suit, the notice by lis pendens, is not nec- 
 essary, (c) 
 
 iTo. 166. Notice lis pendens in foreclosure. 
 AB, 
 
 Complainant, 
 vs. 
 CD, 
 
 Defendant. 
 
 1^ 
 
 The Circuit Court for the County of . In Chancery. 
 
 Notice is hereby given, that a suit has been commenced and 
 
 (o)Comp. L. 1871, §5065. 
 
 (fc) Ibid. 
 
 (c) Baker v. Pierson, 5 Mich. 4C6. 
 
BILLS TO FORECLOSE MORTGAGES. 411 
 
 Practice on Foi-eclosurc Bills — Reference to Compute — Order Fro Confesso. 
 
 is pending in said court, npon a bill of complaint filed by 
 the above named complainant against the above named de- 
 fendant for the foreclosure of a mortgage, bearing date the 
 
 day of one thousand eight hundred and , exe- 
 cuted by , and recorded in the register's office of the 
 
 county of , on the day of , one thousand 
 
 eight hundred and , at o'clock in the 
 
 noon, in liber of mortgages, on page — ■ — , and that the 
 
 mortgaged premises affected by the said foreclosure, were 
 at the time of commencement of this suit, and at the time of 
 
 tiling this notice, situated in the of , in the last 
 
 mentioned county, and are described in the said mortgage as 
 follows, to wit (Here describe proverty); 
 
 EF, 
 Solicitor for complainant. 
 
 Reference to compute amount due. — If a bill to foreclose a 
 mortgage is taken as confessed, or the right of the complain- 
 ant as stated in his bill, is admitted by the answer, the com- 
 plainant may have an order of course referring the cause to 
 a commissioner, to compute the amount due to the complain- 
 ant, and to such of the defendants as are prior incumbrancers 
 of the mortgaged premises; and if the defendant is an infant 
 and has put in a general answer by his guardian, or any of 
 the defendants are absentees, the complainant may have a 
 similar order of course, referring it to a commissioner to take 
 proof of the facts and circumstances stated in the complain- 
 ant's bill, and to compute the amount due on the mortgage 
 preparatory to the hearing of the cause, (d) 
 
 Ro. 167. Order pro confesso, and reference, paymerbts all due. 
 
 State of Michigan. 
 The Circuit Court for the County of -^ . In Chancery. 
 
 AB, 
 
 Complainant, 
 
 vs. 
 
 Judicial Circuit in Chancery. 
 
 Suit pending in the Circuit Court for the 
 
 County of ■—. In Chancery, at 
 
 CD, j on the day of A. D. 18— 
 
 Defendant. J 
 In this cause, on filing due proof by affidavit that subpoena 
 has been duly and personally served on the defendant, 
 
 (d) Chancery Rule 92. See Chap. 6, ante. 
 
412 BILLS TO FORECLOSE MORTGAGES. 
 
 Practice on Foreclosure Bills — Affidavit of Regularity. 
 
 C D, and more than twenty days having elapsed since 
 the return day of the subpoena, served as aforesaid, and 
 no appearance by or on behalf of said defendant, C D, 
 having been entered, on motion of D B, solicitor of 
 said complainant, it is ordered that the appearance of the said 
 defendant, D, be, and the same is' hereby entered by the 
 register of said court, in accordance with the rules and prac- 
 tice thereof; and on further motion of said solicitor, it is or- 
 dered that the bill of complaint filed in said cause be, and ' 
 the same is hereby taken as confessed by said defendant, D, 
 and that said bill be referred to J M D, circuit court com- 
 missioner of countj', to compute and ascertain the 
 
 amount due to the complainant for principal and interest on 
 the note and mortgage mentioned and set forth in said bill, 
 and report the same to this court with all convenient speed; 
 and further, that said commissioner take proofs of the mate- 
 rial tiicts and circumstances charged in said bill, and return 
 the same with this report. 
 
 D a. 
 
 Complainant's solicitor. 
 
 Entered by , 
 
 Register. 
 
 A reference to a circuit court commissioner, to compute the 
 amount due upon a mortgage, is for the convenience of the 
 circuit judge, and he can dispense with it if he sees fit, and 
 compute the amount himself («) 
 
 Affidavit of regularity. — If the bill of complaint has been 
 taken as confessed, the complainant shall show to the court, 
 at the hearing, by affidavit or otherwise, that the proceedings 
 to take the bill as confessed have been regular, according to 
 the rules and practice of the court. He shall also show 
 whether tlie bill has been taken as confessed against all the 
 'defendants npon service of subpoena, or after an appearance, 
 or whether some of them have been proceeded against as ab- 
 sentees. (6). Affidavits of regularity are for the convenience 
 of the court, (c) 
 
 (a) Ireland v. Woolman, 15 Mich. 25i5; Kellogg \. Putnam, 11 Mich. 
 345; Vaughn v. mm.s, 36 Mich. 297. 
 (6) Chancery Rule 92; see form 18, ante, page 70. 
 (c) Ireland v. Woolman, 15 Mich. 253. 
 
BILLS TO FORECLOSE MORTGAGES. 413 
 
 Practice-on Eoreclosure Bills — Proceedings before Commissioners. 
 
 Proceedings before comrmssioners. — When a foreclosure 
 suit is contested, no order of reference, in the first instance, 
 is made, as we have already seen, (u) 
 
 The parties in such a case produce their witnesses, and the 
 commissioner takes the proofs, and reports the same to the 
 court. The judge can then compute the amount due himself. 
 ib) or he may refer the matter to a commissioner to report. 
 {c) If the bill is taken as confessed, against adult defend- 
 ants, the facts stated in the bill are admitted, and no proof 
 need usually be presented to the commissioner. It is then a 
 mere matter of computation as to the amount dne. There is 
 an exception to this rule. There can be no decree upon de- 
 fault when the defendant has been brought in by publication, 
 and has not appeared in the case without proofs; and the 
 complainant in such a case, should be sworn as to the pay- 
 ments, id) The commissioner reports to the court the proofs 
 and examinations had before him. On the coming in of his 
 report, the court makes such order as may be just, (e) If the 
 commissioner reports nothing due upon the mortgages, and 
 his report is not excepted to, it is conclusive, {f) 
 
 His report binds all the parties to the suit if not excepted 
 to.(p) 
 
 If the commissioner wrongfully refuses to hear testimony, 
 the remedy is by motion to the court. This should be made 
 at once and without awaiting his report, {h) This is also the 
 remedy when he errs in not requiring parties to produce books 
 and papers. (?') And if the proceedings before him are irreg- 
 ular, it is ground to move to set aside his report; and in such 
 a case, further time should be obtained to except to his re- 
 la) Ante, page 169-171. 
 
 (6) Ante, page, 411. 
 
 (c)Ante, page 412. 
 
 (d) Brown v. Thompson, 29 Mich. 72. 
 
 (e) Comp. L. 1871, § .5123. 
 
 (/) Thorn v. Helliker, 12 Mich. 215. 
 
 (g) Eaton v. Truesdail, 40 Mioh. 1. 
 
 [h)Schwarz V. Sears, Walk. Ch. 19; Ward v. Jewett, Ibid, 45. 
 
 (i) Emerson v. Atwater, 12 Mich. 314. 
 
4l4 BILLS TO FORECLOSE MORTGAGES. 
 
 Defenses to. 
 
 port, (a) A circuit court commissioner who has not been 
 designated as injunction master, may execute orders of refer- 
 ence in foreclosure cases. (5) 
 
 Hearing. — If the bill has been taken as confessed, or if tlie 
 case as stated by the complainant is admitted, the cause must 
 be regularly brought to a hearing at a term after the coming 
 in of the commissioner's report before a final decree is entered 
 therein, (c) We have already considered the method of plac- 
 ing causes upon the calendar, and of their relative positions 
 thereon. (cZ) When the defendants in a foreclosure suit neg- 
 lect to appear after due service, the complainant may pro- 
 ceed ex parte, without noticing the case for hearing or plac- 
 ing it on the term calendar, (e) 
 
 SECTION VL 
 
 DEFENSES TO. 
 
 A mortgagor is not permitted to deny his own title, {f) and 
 a mortgage will be construed most favorably for tlie mortga- 
 gee, {g) It is also true, that where one has bought land sub- 
 ject to a mortgage, and contracted with the mortgagee for for- 
 bearance, he can not dispute the existence or validity of the 
 mortgage. (A) 
 
 If the defendant claims that the mortgage was procured 
 by false representations, or that it is fraudulent, the burden of 
 proof is upon him. (^) So it is if the defense is based upon an 
 alleged agreement between the defendant and complainant's as- 
 
 (o) Suydam v. Duquindre, Walk. Ch. 23. 
 (6) People ex rel. Warner v. Randall, 37 Mich. 473. 
 (c) Chancery Rule 92. 
 '(d) Ante, page 199. 
 (e) Warner v. Juif, 38 Mich. 662. 
 
 {/) Racine & Miss, R. R. Co. v. Farmers Loan d- Trust Co. 49 111. 331. 
 ig) Stuart v. Wilson, 42 Mich. 154. 
 (h) Smith V. Graham, 34 Mich. 302. 
 (j) Perrett v. Yarsdorfer, 37 Mich. 596; Sloan v. Holcomh, 29 Mich. 153. 
 
BILLS TO FORECLOSE MORTGAGES. 415 
 
 Defenses to. 
 
 signer. In such a case the agreement must be clearly averred 
 and proven, {a) 
 
 Where a mortgage is given upon one tract of land to secure 
 purchase money of another tract, which the morgagee cove- 
 nants to convey with warranty, but to which he has no title, 
 such failure of title in the vendor is a good defense in equity 
 in a proceeding to foreclose the mortgage. (5) An assignee of 
 a note secured by mortgage takes it subject to prior equities 
 between the original, parties, (c) And proof that the note 
 which is the basis of the foreclosure suit belongs, not to the 
 complainant, but to others who use his name, will have no fur- 
 ther effect upon the suit than to entitle the defendants to the 
 benefit of any defense that they might have had against the 
 real owners, (d) 
 
 It is said, that a mortgagee, with notice of subsequent liens, 
 has no right to release his mortgage, to the prejudice of such 
 liens., (e) Upon this principle it has been held, that if the 
 mortgagee, for a consideration, release that portion of the 
 land which was primarily liable for the debt, he thereby dis- 
 charges the other portion. (_/) So, if. two estates are mort- 
 gaged in one deed, and transferred to different persons, and 
 one released by the mortgagee, the owner of the other, on re- 
 deeming, can not compel contribution, but may claim a de- 
 duction from the debt in proportion to the value of the parcel 
 released, {g) 
 
 A mortgage of a homestead, given by a married man with- 
 out his Avife's signature, is absolutely void. This is so, even 
 
 (rt) Suhr V. Ellsworth, 29 Mich. 57. 
 
 (6) Smith V. Newton, 38 111. 230; see also Weaver v. Wilson, 48 111. 125. 
 
 (c) Lock V. Fulford, 52 111. 166; Hubbard v. Turner, 3 McLean, 519. 
 
 (i) Spear v. Hadden, 31 Mich. 265. 
 
 (e) McLeamr. Lafayette, etc. 3 McLean, 587; see, also, Hallv. Edwards, 
 43 Mich. 473. 
 
 (/) Paxton V. Harrier, 11 Penn. 312; see Holman v. Bank, etc. 12 Ala. 
 369; Hawhe v. Snydaker, 86 III. 197. 
 
 {g) Parkmanv. Welch, 19 Pick. 238; see, also, Iglehart v. Crane, 42 
 111. 261; Loch V. Fulford, 52 111. 166; see further defenses of this nature, 1 
 Hilliard on Mortgages, 327 et seq. 
 
416 BILLS TO FORECLOSE MORTGAGES. 
 
 Decree and Sale. 
 
 thougfh the wife is not living with her husband, {a) Where 
 a defendant obtains delay by promising topay the amount of 
 the decree, both parties supposing the title to the mortgaged 
 land to be good, he can not, on finding it to be defective, de- 
 fend on that ground, (b) It is no defense to a purchase price 
 mortgage, that there is an outstanding tax title in a third per- 
 son who has made no claim under it. (c) An assignment of 
 a mortgage to the grantee of the premises, who assumed tlie 
 mortgage, extinguishes the debt, {d) A mortgage providing 
 no time for payment, \& due as soon as given, {e) 
 
 We have not the space to enter into a more full examina- 
 tion of defenses to a Ibreclosure. Works specially treating of 
 the subject of mortgages, will have to be consulted. (/") 
 
 SECTION VII. 
 
 DECREE AND SALE. 
 
 We have already considered the general requisites of a de- 
 cree in equitj', and need now only mention a few points 
 having special reference to a decree of foreclosure. 
 
 The 99A rule for practice in the courts of equity of the 
 United States, adopted at the December term, 1863, provide.-, 
 " that in suits in equity for the foreclosure of mortgages in 
 the circuit courts of the United States, or in any court of tlie 
 Territories having jurisdiction of the same, a decree may be 
 rendered for any balance that may be found due to the com- 
 plainant over and above the proceeds of the sale or sales, and 
 execution may issue for the collection of the same, as is pro- 
 vided in the 8th rule of this court regulating the equity prac- 
 tice, where the decree is solely for the payment of money." 
 
 (a) Sherrid v. Southwick, 43 Mich. 515; see, also, Johnson v. Van 
 Velsor, 43 Mich. 208. 
 
 (6) Tenney v. Hand, 32 Mich. 63. 
 
 (c) Smith \. Fiting, 3/ Mich. 148. 
 
 (d) 41 Mich. 264. 
 
 (e) Eaton v. Truesdail, 40 Mich. 1. 
 
 (/) See Hilliard on Mortgages; Fisher on Mortgages, etci 
 
BILLS TO FORECLOSE MORTGAGES. 417 
 
 Decree and Sale. 
 
 Under rule 92, above referred to, the power of the circuit 
 court of the United States, in a foreck)sure suit, to order a 
 general execution for any balance remaining due, after sale of 
 the mortgaged premises, is a discretionary one. (a) 
 
 The common practice in courts of chancery, upon a fore- 
 closure of mortgages, is to decree a surrender of the posses- 
 sion and title papers by the mortgagor and those claiming un- 
 der him. (b) It is held in Michigan that no decree should be 
 rendered without the production in court of the notes and 
 mortgage, as evidence of the 'com plain ant's right. Or, in place 
 thereof, there must be adequate reasons given why they can 
 not be produced, and clearproofof their continued efficacy, (c) 
 
 An attorney fee provided for in a mortgage will not be al- 
 lowed in a decree of foreclosure in chancery, (d) The decree 
 when granted, may be for the whole amount then due. (e) 
 But upon a bill to foreclose a mortgage payable in install- 
 ments, filed at a time when only one installment had become 
 due, and which seeks a foreclosure for that payment only, a 
 decree for an additional installment not due when the bill was 
 filed, is unwarranted. (/) In making the decree, the court 
 sliould always, for itself, pass upon tiie evidence. {</) The de- 
 cree is a final adjudication of tlie matters in issue. (/<) As in 
 all other equity cases, the decree should follow the case plead- 
 ed and the allegations of the bill, (i) When the bill is taken 
 as confessed, the defendants admit no more than the case 
 made by the bill.(_;) 
 
 When premises have been mortgaged, and subsequently 
 
 (a) Phelps T. Loyhed, 1 Dillon, 512. 
 (6) Laivrence v. Lane, 4 Gilm. 354. 
 
 (c) Young v. McKee, 13 Mich. 552; Hungerford v. Smith. 34 Mich. 300; 
 MicMe V. Maxfield, 42 Mich. 304. 
 
 (d) Van Marter v. McMilleii, 39 Mich. 304; see, also, Mi/er v. Hart, 40 
 Mich. 517; Canfield v. Conkling, 41 Mich. 371; Parka v.vl/?pm,42 Mich.482. 
 
 (e) Vaughn v.Nims, 36 Mich. 291; Johnson v. Van Velsor,4S Mich. 208. 
 (/) Smithy. Osborn. 33 Mich. 410; see, also, Perkins v. Perkins, 16 Mich. 
 
 162; McCurdy v. Clark, 27 Mich. 445. 
 (g) Vanghn v. Nims, 36 Mich, 297. 
 [h] Hazen v. Reed, 30 Mich. -331. 
 (i) Livingston v. Hayes, 43 Mich. 129. 
 0') McCabev. Farnsworth, 27 Mich. .52. 
 27 
 
418 BILLS TO FORECLOSE MORTGAGES. 
 
 Decree and Sale — Personal Decree. 
 
 parcels of, or undivided interests in the same lands have been 
 conveyed or incninhered, on a foreclosure of such mortgage, 
 tlie decree should provide that the premises be sold in the in- 
 verse order of such conveyances or incumbrances, (a) 
 
 The court has power to decree and compel the delivery of 
 the possession of the premises to the purchaser at the com- 
 missioner's sale, (b) 
 
 Personal decree. — If any balance of the mortgage debt 
 remains unsatisfied after the decree, and in case such balance 
 is recoverable at law, the statute authorizes a personal decree 
 in favor of tlie complainant, (c) So, too, a personal decree 
 may be rendered against third persons who have secured tlie 
 payment of the mortgage debt.{d) But a personal decree is 
 not proper against a person brought in by publication, who has 
 not appeared, and has not been served with process, (e) Neither 
 can it be allowed against a wife who joined, with her husband 
 ill the execution of the mortgage; (_/") nor, in the first instance, 
 against guarantors of tlie collection of the mortgage debt, (cf) 
 
 A defendant who has appeared, should have notice of the 
 entry of the decree and an opportunity Jo be heard on the 
 settlement of the same, (h) A reasonable time is allowed for 
 
 (a) Briggs v. Kaufman, 2 Mich. N. P. 160; see Sibley v. Baker, 23 Mich. 
 312; Mason v. Payne, Walk. Ch. 459; Cooper v. Bigley, 13 Mich! 463; Ire- 
 land V. Woolnian, 15 Midh. 253; Gantz v. Tales; iO Mich. 725; Gilbert v. 
 Haire, 43 Mich. 288; Soger v. Tapper, 35 Mich. 134; McKinney v. Miller, 
 19 Mich. 143;, Davis v. Rider, 5 Mich. 423; Bailey v. Gould, Walk. Ch. 
 478; McCullum v. Turpie, 32 lud. 146; see Lock v. Fulford, -52 111. 15&; 
 Payne v. Avery, 21 Mich. 524; contra, see Barney v. Myers, 28 Iowa, 472; 
 Niles V. Harmon, 80 111. 396; Hawhe v. Snydaker, 86 111. 197; St. Joseph 
 M. Co. V. Daggett, 84 III. 556. 
 
 (fc)Comp. L., 1871, §5148. 
 
 (r;) Comp. L. 1871, § 5150. See Crawford v. Edimrds, 33 Mich. 355; 
 Miller y. Thompson, 34 Mich. 12; Higman v. Sfeu-art, .38 Mich. 5&; Hicks 
 V. McGarry, 38 Mich. 667; Booth v. Ins. Co. 43 Mich. 299. 
 
 {d) Innes v. Stewart, 86 Mich. 285. 
 
 («) Kitchell V. Mudgett, 37 Mich. 81. 
 
 (/) Ho^ve v. Lemon, 37 Michigan, 164. 
 
 (g) Johnson v. Shepherd, 35 Mich. 115. 
 
 {h) Detroit Marine Ins. Co. v. Jtenz, 83 Mich. 298. 
 
BILLS TO FORECLOSE MORTGAGES, 419 
 
 Decree and Sale — Decree of Foreclosure and Sale. 
 
 tlie payment of the money fixed by the decree, before the edm- 
 mencement of the advertisement of sale, {a) 
 
 It is provided by Section 5152, Compiled Laws of 1871, that 
 if it shall appear that any judgment has been obtained in a 
 suit at law, for the mone}' demanded by the bill, or any part 
 thereof, no proceedings shall be had in such case, unless to an 
 execution against tb.e property of the defendant in such judg- 
 ment, the sheriff or other proper officer shall have returned 
 that the execution is unsatisfied, in whole or in part, and that 
 tlie defendant has no property whereof to satisfy such execu- 
 tion except the mortgaged pl-emises. 
 
 iTo. 168, Decree of foreclosure and sale, pro confesso. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 At a session of said court held at tlie 
 of on the day of 
 
 •one thousand eisrht hundred and 
 
 &■ 
 
 Complainant. 
 m. 
 CD, 
 
 Defendant. 
 
 PitESENT, Hon. a J" M, Circuit Judge. 
 
 This cause came on to be heard, and was argued by coun- 
 sel; and thereupon, upon consideration thereof, it was or- 
 dered, adjudged and decreed as follows, viz.: 
 
 On reading and filing the report of S O, one of the com- 
 missioners of this court, which report bears date the 
 
 day of in the year one thousand eight hundred and 
 
 and was made in pursuance of an order of this court 
 
 heretofore made in this cause, referring it fto one of the com- 
 missioners of this court to compute the amount due to the com- 
 plainant on the note and mortgage mentioned and set forth 
 in the bill of complaint, from which it appears that there was 
 due to the said complainant at the date of said report, for 
 said principal and interest the snra oi {Here state amount) 
 and on reading and filing the affidavit of D B, solicitor for 
 complainant, showing the regularity of the proceedings in this 
 cause, to talse said bill of complaint as confessed; and on mo- 
 tion of D B, solicitor and counsel for the complainant, it is 
 ordered, adjudged and decreed, and this court, by virtue of 
 
 (a) Det. Bank v. Trmsdail, 38 Mich. 430. 
 
420 BILLS TO FORECLOSE MORTGAGES. 
 
 Decree and Sale — Decree of Foreclosure and Sale. 
 
 the authority therein vested, doth order, adjudj^e and decree, 
 that the said report, and all things therein contained, do 
 stand ratified and confirmed. And it is further ordered, ad- 
 judged and decreed, that the said defendant pay or cause to 
 be paid to said complainant or to D B, his solicitor, the 
 amount so reported due as aforesaid, together with tlie inter- 
 est and costs, on or before the day of in the 
 
 year one thousand eight hundred and , and in default 
 
 thereof, that all arid singnlar the said mortgaged premises 
 mentioned in the bill of complaint in this cause, and hereinaf- 
 ter described, or so much thereof as may be suflieieut to 
 raise the amount due to the complainant, for the principal, 
 interest aud costs in thiscasej^and' wiiich may be sold sepa- 
 rately without material injury to the parties interested, he 
 sold at public auction, by or under the direction of S O, coin- 
 
 missioner of this court, at any time after tire said 
 
 day of , in the year one thousand eight hundred and 
 
 — , that the said sale be made in the county where the 
 
 said mortgaged premises, or the greater part thereof, are sit- 
 uated; that the 'Said commissioner give public notice of tlie 
 time and place of such sale, according to the course and prac- 
 tice of this court, and that the complainant, or any of the 
 parties in this cause, may become the purchaser; that the 
 said commissioner execute a deed to the purchaser or pur- 
 chasers of the mortgaged premises on the said sale; and that 
 the said commissioner out of the proceeds of said sale, paid 
 to tho complainant or his solicitor costs in this suit to be 
 taxed, and also the amount so reported to be due as aforesaid, 
 together with the legal, interest thereon, from thd date of said 
 report, or so much thereof as the purchase money of the 
 mortgaged premises will pay ot the same; and that the said 
 commissioner take receipt for the amonnt so paid, and 
 file the same with his report; and that he bring tho surplus 
 moneys arising from said sale, if any there be, into court 
 without delay, to abide the further order of this court. And 
 it is further ordered, adjudged and decreed, that the defend- 
 ant and all persons claiming or to claim from or under him, 
 be forever barred and ff)reclosed of aiid from all equity of re- 
 demption, and claim of, in and to said mortgaged premises, 
 aud every part and parcel thereof. And it is further ordered, 
 that the purchaser or purchasers of said mortgaged premises 
 at such sale, be let in possession thereof; and that any of the 
 parties of this cause, who may be in possession of said prem- 
 ises, or any part thereof, and any person who, since the com- 
 mencement of this suit, has come into possession under them 
 
BILLS TO FORECLOSE MORTGAGES. 421 
 
 Decree and Sale — Sale of Mortgaged Piemises. 
 
 or either of them, deliver possession thereof to such pur- 
 chaser or purchasers, on production of the commissioner's 
 deed for such premises, and a certified copy of the order con- 
 firming the report of such sale, after such order has becomes 
 absolute. And it is further ordered and decreed, that if the 
 moneys arising from said sale shall be in sufficient to pay the 
 amount so reported due to the conjplainant, with interest 
 and costs and expenses of sale as aforesaid, that said commis- 
 sioner specify the amount of such deficiency in his report of 
 said sale, and that on the cominj; in and confirmation of said 
 report, the defendant O I), who is personally liable for the 
 debt secured by said mortgage, pay to the complainant the 
 amount of such deficiency, with interest thereon from the 
 date of such report, and that the complainant liave execution 
 therefor. The description and particular boundaries of the 
 property authorized to be sold under and by virtue of this 
 decree, so far as the same can be ascertained from the mort- 
 gage above referred to or from the bill of complaint in this 
 cause, areas follows, viz.: 
 {Here insert description.) 
 
 A JM, 
 Circuit Judge. 
 Countersigned: 
 TFG, 
 
 Register. 
 
 Sale of mortgaged premises. — The court has power to de- 
 cree the sale of mortgaged premises, or such parts as are 
 necessary to discharge the amount due, and costs. But the 
 land can not be ordered sold within one year after the filing 
 of the bill (a), and it has been held that the court should 
 postpone tile sale until the expiration of a j'ear from the ser- 
 vice of the subpoena, (h) The rule now provides that sales 
 siiall not be ordered on less than six fnll weeks, or forty-two 
 days' notice; and publication shall not commence until the 
 time fixed m decree for payment has expired, nor within 
 a year after the commencement of suit, (o) The notice must 
 be given in the same manner as is required by law on sales 
 
 (o) Comp. L. § 5147. 
 
 (6) Ins. Co. V. Rem, 33 Mich. 299. 
 
 (c) Chancery Rule 92; see CuUer v. McKeown, 43 Mich. 322. 
 
422 BILLS TO FORECLOSE MORTGAGES. 
 
 Decree and Sale — Deed on Sale — Adjournment of Sales. 
 
 of real estate by slierifiFs on execution, {a) Tlie notice is in- 
 dispensable, and strict proof of notice must be made and put 
 on record, {i) All sales must be made by a circuit court 
 commissioner of the county wliere the decree was rendered, 
 or the land or some part of the same is situated, or by some 
 person duly authorized by tiie order of the court. The sale 
 must be by public vendue, between nine o'clock in the morn- 
 ing and the setting of the sun, at the court house, or place of 
 holding the circuit court in the county where the estate or 
 some part is situated, or at such other place as the court shall 
 direct, (c) 
 
 Deed on sale. — Deeds shall thereupon be executed by the 
 commissioner or person making the sale, specifying the names 
 of the parties in the suit, the date of the mortgage, when and 
 where recorded, with a description of the premises sold, and 
 the amount bid for the same. When the deed is entered for 
 record, the register of deeds notes on the margin of the orig- 
 inal mortgage the book and page of the record of the com- 
 missioner's deed, {d) A written or printed notice of the sale 
 must be posted in three public places in the township where 
 the real estate is to be sold, six weeks previous to the sale. 
 If the sale is to be in a different township from that in which 
 the premises to be sold ai-e situate, then the notice m ust be 
 posted in the public places in the township in which the prem- 
 ises fare located.' No notice of an adjourned sale need be 
 posted except at the place where the sale is to be made, (e) 
 
 Adjournment of sales. — The commissioner, or other person 
 authorized by the court to make sale of the premises, has 
 power to adjourn the same. If the adjournment is for more 
 than one week, notice of the adjournment must be given in 
 
 [a) C. L. 1881, § 5153. Amended Laws 1877, page 12; see, also, Laws 
 1881, p. 245. 
 (6) Perrien v. Fetters, 35 Mich. 233. 
 
 (c) Comp. L. § 5153. 
 
 (d) Comp. L. 1871, § 5154. 
 
 (e) Comp. L. 1871, § 4629; Laws 1877, p. 12. 
 
BILLS TO FORECLOSE MORTGAGES. 423 
 
 Decree and Sale — Chancery Sale. 
 
 the same newspaper in which the original notice of sale was 
 published, and the publication of the original notice must be 
 continued, (a) If, on the day upon which the sale is advertised 
 to take place, or on any adjourned day of the sale, if the com- 
 missioner is absent or disqualified from acting, the other 
 circuit court commissioner, if there be one who can act, and 
 if not, then a commissioner from an adjoining county, may 
 proceed and make the sale, execute deeds and report to the 
 court, and proceed in all respects as if he had originally adver- 
 tised tlie property. Or such commissioner may adjourn the 
 same, publishing the notices in hia own name, and m ike the 
 sale on the adjourned day, unless the commissioner who ad- 
 vertised the same shall be present and competent to proceed, 
 in which case, if he desires, he may do so. {i) If tlie term 
 of office of a commissioner expires before the sale sliall be 
 consummated, he may still proceed to sell, report to the court, 
 and do all things necessary to perfect tlie sale. For such pur- 
 poses his power and authority continues until all such business 
 is fully closed, (c) 
 
 It!, at the sale, the person making the higliest bid neg- 
 lects or refuses to make an immediate payment of the same 
 bid, the property may at once be resold, or the sale may bd 
 adjourned. (cZ) 
 
 No. 169. Form of notice of ohanoery sale. 
 
 CHANCERY SALE. 
 
 In pursuance and by virtue of an order and decree of tlie 
 
 circuit court for the county of , in chancery, in tlie State 
 
 of Michigan, made and dated on the day of- , A. D. 
 
 18 — , in a certain cause tlierein pending, wherein C A R is 
 complainant, and H B R, L A R, C J W, I C V W, and H M 
 P, are defendants. 
 
 Notice is hereby given that I shall sell at public auction, 
 to the highest bidder, at the frontdoor of the court house, in 
 
 (a) Ishell V. Kenyan, ;?3 Mich. 63. 
 
 (6) Laws 1881, p. 245. 
 
 {c) Ibid. 
 
 [d] Laws 1877, pages 12 and 13. 
 
424 BILLS TO FORECLOSE MORTGAGES. 
 
 Decree and Sale — Sales by Parcels — Enrollment of Decree, etc. 
 
 the village and county of , and State of Michigan, said 
 
 court house being the place for holding the circuit court for 
 
 said countj', on , the day of , A. D. 18 — , at 
 
 10 o'clock in the forenoon, all, or so much thereof as may be 
 necessary to raise the ainount due to the said complainant for 
 principal, interest and costs in this cause, of the following de- 
 scribed parcel of land, to wit {Here insert description of the 
 premises). And in making said sale tlie south half of said 
 above described land will be first sold, and if that be not suf- 
 ficient to pay the said principal, interest and costs, then that 
 so much of the north half of said land adjoining said south 
 half as may be necessary to pay the balance due, with interest 
 and costs, will be next sold, in accordance with the terms of 
 said decree. 
 
 Dated , Michigan, , 188 
 
 *^ JMD, 
 
 Circuit Court Commissioner in and for County, 
 
 Michigan. 
 
 H & K, 
 Solicitors for complainant. 
 
 Sales hy parcels. — If the real estate consists of several well- 
 known parcels, it should be sold in parcels, separately, {a) 
 No more parcels can be sold than are sufficient to satisfy the 
 mortgage debt. (5) 
 
 Enrollment of decree, etc. — It is provided by Ciiancery 
 Rule 80 that no process shall issue, or other proceedings be 
 had on any final decree until the same is duly enrolled. A.ud 
 such process unless specially directed by the court, shall be 
 sealed and issued by the register, who shall not suffer any 
 process to pass his seal, if it does not appear to be duly war- 
 ranted. If a commissioner is directed to sell real estate under 
 such decree, he may give the requisite notice of sale previous 
 to enrollment; but, to protect the title of the purchaser, the 
 
 (a) Comp. L. 1871, §§ 4636, 6918; Amended Laws 1875, p. 26; see 
 Udell V. Kahn, 31 Mich. 196; Lee v. Mason, 10 Mich. 403; GriswoU v. 
 Fuller, 33 Mich. 268; Spear v. Hadden, 31 Mich. 266; Vaughn v. Norris, 
 36 Mich. 297; Genei/ v. Maynard, 44 Mich. 578; Osman v. Traphagan, 23 
 Mich. 85. 
 
 (6) Grovery. Fox, 36 Mich. 462. 
 
BILLS TO FORECLOSE MORTGAGES. <125 
 
 Decree and Sale — Certificate of Enrollment — Report of Sale. 
 
 party for whose benefit the sale is made shall cause the decree 
 to be enrolled, and produce a certificate thereof, before any 
 conveyance shall be executed by the commissioner. And 
 where any decree or decretal order disposes of any part of the 
 merits of the cause, or is necessary to explain the final decree, 
 it shall either be recited therein, or enrolled therewith, as a 
 part of the final decree of the cause, {a) 
 
 No 170. Certificate of enrollment. 
 
 The Circuit Court for the County of . In Chancery. 
 
 AB, 
 
 Complainant, 
 vs. 
 CD, 
 
 Defendant. 
 
 I, the undersigned, register of said court, do hereby certify 
 
 that at the instance of the solicitor for the above , 
 
 I have this day attached together for the purpose of enroll- 
 ment, the bill of complaint, subpoena pleading, proofs, taxed 
 bill of costs, a fair engrossed copy of the final decree, signed 
 
 by the Honorable , Circuit Judge, and countersigned 
 
 by the register of tliis court, together with the other papers 
 filed in this cause, and annexed thereto this certificate, accord- 
 ing to the statute in such case made and provided. 
 
 In testimony whereof, I have hereunto set ray hand, and 
 
 affixed the seal ot said court, this day of , A. 
 
 D. 18—. 
 
 EF, 
 
 Eeffister. 
 
 ''s 
 
 Report and confirmation of sale. — After a sale has been 
 made by a commissioner, he reports the same to the court. 
 
 And until the sale is confirmed, it is subject to the discre- 
 tionary power of the court, to open it for any cause. No right 
 becomes fixed in the purchases until the sale becomes absolute 
 by confirmation. (5) After the report of the commissioner 
 
 (a) See also, Comp. L. 1871, §§ 5043, 5094, 5095, 5099, 5153, 5154 
 5179, 5687, 5688, 6055, 6059. 
 
 (b) Demaray v. LUtlef 17 Mich 386; Richards v. Morion, 18 Mich. 888; 
 Howard v. Bond, 42 Mich. 131. 
 
426 BILLS TO rOB.EOLOSE MORTGAGES. 
 
 Decree and Sale — Commissioner's Report of Sale. 
 
 has been filed, either party may have an order of course con- 
 firming the same, unless cause to the contrary be shown 
 within eight days after notice of its being filed. If no excep- 
 tions are filed and served within that time, the order will be- 
 come absolute of course, without further order, (a) 
 
 No. 171. Commissioner' 8 report of sale. 
 
 State of Michigait, ) 
 
 County of j ' 
 
 In the Circuit Court for the County of . In Chancery. 
 
 In the case between 
 AB, 
 
 Complainant, 
 and 
 CD, 
 
 Defendant. 
 To the Circuit Court for the County of . In Chancery. 
 
 In pursuance and by virtue of a decretal order of this court, 
 
 made in the above cause bearing date the day of in 
 
 the year one thousand eight hundred and eighty , by 
 
 which it was, among other things, ordered, adjudged and de- 
 creed, that all and singular the mortgaged premises mentioned 
 in the bill of complaint in this cause, and hereinafter described 
 or so much thereof as may be suflicient to raise the amount 
 due to tlie complainant, for the principal, interest and costs 
 in this case, and which may be sold separately without any 
 material injury to the parties interested, be sold at public 
 ciuction, by or under the direction of one of the circuit court 
 
 'joinmissioners of county, Michigan, at any time after 
 
 the day of , in the year one thousand eight hundred 
 
 and eighty : That the said sale be made in the county 
 
 where the said mortgaged premises or the greater part there- 
 of are situated: That the commissioner give public notice of 
 the time and place of such sale, according to the statute and 
 the coui-se and practice of this court, and that the complain- 
 ant, or any of the parties to this cause, may become the pur- 
 chaser; and the said commissioner execute a deed to the pur- 
 chaser of the mortgaged premises on the said sale, and that 
 the said commissioner, out of the proceeds of said sale, pay to 
 the complainant or his solicitor costs in this suit to be 
 
 (a) Chancery Rule 79. 
 
BILLS TO FORECLOSE MORTGAGES. 427 
 
 Decree and Sale — Commissioner's Report of Sale. 
 
 taxed, and also tlie anionnt so reported due as aforesaid, to- 
 gether with interest thereon from date of said repoi-t, or so 
 mncli thereof as the purchase money of the mortgaged prem- 
 ises will pay of the same; and that the said commissioner 
 take receipts for the amount so paid, and tile the same with 
 his report; and that he bring the surplus moneys arising 
 from said sale, if any there be, into court without delay, to 
 abide the further order of .this court; and that if the moneys 
 arising from said sale be insufHcieut to pay the amount so re- 
 ported due to the complainant, with interest and costs and, 
 expenses of sale as aforesaid, that said commissioner specify 
 the amount of such deficiency in his report of said sale. 
 
 I, the subscriber, J M D, one of said commissioners, do 
 respectfully certify and I'eport, that having been charged by 
 the solicitor for the complainant with the execution of said 
 decretal order, I advertised said premises to be sold by me 
 at public auction, to the highest bidder, at (said build- 
 ing being the place of holding tiie circuit court for the 
 
 county of ) on the day of in the year one 
 
 thousand eight hundred and eighty ; that previous to 
 
 said sale I caused notice thereof to be publicly advertised for 
 six successive weeks, as follows, viz: By causing printed 
 notices thereof to be fastened up at least six weeks prior to 
 the day said premises were advertised to be sold, in three 
 
 public places, in the where said premises were to be sold, 
 
 and also in three public places, in the where said prem- 
 ises are situated, an affidavit showing the fastening up of 
 which notices is located annexed, marked "Exiiibit A," and 
 made a part of this my report, and by .causing a notice of 
 such sale to be printed once in each week during the pre- 
 ceding said sale, in the , a public newspaper printed in 
 
 said county of as appears by affidavit following this re- 
 port, marked "Exhibit B," which notice contained a descrip- 
 tion of the mortgaged premises. 
 
 And I do further report, that on the said day of 
 
 in the year one thousand eight hundred and eighty the 
 
 day on which the said premises were so advertised to be 
 sold as aforesfiid, I attended at the time and place fixed for 
 
 said sale, and exposed said premises for sale at public 
 
 auction to the highest bidder; and the said premises 
 
 were then and there fairh' struck off to for the sum 
 
 of- he being the highest bidder therefor, and that being 
 
 the highest sum bid. 
 
 And I do further certify and report, that I have executed, 
 acknowledged and delivered to the said purchaser^— the usual 
 
428 BILLS TO FORECLOSE MORTGAGES. 
 
 Decree and Sale — Commissioner's Report of Sale. 
 
 commissioner's deed for said premises, the complainant — 
 hving produced a certificate of the enrollment of the final 
 decree in said cause, which is hereunto annexed, marked "Ex- 
 hibit 0," and have paid over or disposed of the purchase 
 money, or proceeds of said sale, as follows, viz.: I have 
 
 paidto tlie solici tor — for the complainant — the snm of $ , 
 
 being the amount of costs of this suit as taxed, together 
 with interest thereon from the date of said taxation to the day 
 of the sale, and have taken a receipt therefor, which is hereto 
 annexed. 
 
 1 have also retained in my hands the snm of $ , being 
 
 the amount of ray fees and disbursements on said sale, as will 
 appear by reference to tlie statement thereof, annexed to this 
 my report, and to which I refer. 
 
 And I do further certifj' and report, that I have paid to the 
 
 solicitor — for the complainant — , the further sum of $ , 
 
 and have taken a receipt therefor, wjiich is hereto annexed. 
 
 And I do further certify and report, that the moneys arising 
 from said sale, are insuificient to pay the amount so reported 
 due to the complainant — , with interest, costs and expenses of 
 sale as afoiesaid, and I hereby specify the amount of such de- 
 ficiency to be, and the same is the sum of . 
 
 And I do further certify and report, that the premises so 
 sold and conveyed as aforesaid, were described in said decretal 
 order, and in the deed so executed by me as aloresaid, as fol- 
 lows viz. : {Here insert description^ 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 AB, 
 
 Complainant, 
 vs. 
 CD, 
 
 Defendant. 
 
 -Received, this — day of , 18 — , of 
 
 the commissioner who made the sale of the mortgaged 
 
 premises in said cause, dollars, said sum being part of 
 
 the proceeds of said sale, and being the amount of couiplain- 
 ant's costs of suit as taxed, with interest thereon to date of 
 
 H & E, 
 
 Complainant's solicitors. 
 
BILLS TO PORECLOSK MORTGAGES. 429 
 
 Decree and Sale — Commissioner's Report of Sale. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 AB, 
 
 Complainant, 
 vs. 
 CD, 
 
 Defendant. 
 
 Eeceived, the — day of , 18 — , of 
 
 , the comniiRsioner who made the sale of the mortgaged ■ 
 
 premises in said cause, — ^ dollars, said sum being a part 
 
 of the proceeds of said sale, and being the amount remaining 
 thereof after deducting therefrom the complainant's costs of 
 suit as taxed, and the expenses of said sale. 
 
 H & E, 
 Complainant's solicitors. 
 
 RECAPITULATION. 
 
 $ Principal and interest due at date 0/ sale. 
 
 $ Costs and interest dne at date of sale. 
 
 $ Commissioner's fees, costs and expenses of sale. 
 
 Total amount due at date of sale. 
 Amount realized on sale of premises. 
 
 reported, 
 
 ^ 
 
 Amount paid to complainant's solicitor ou debt. 
 Amount paid to Cipmplainant'fj solicitor on costs. 
 Amount of commissioner's lees, costs and ex- 
 penses of sale retained. 
 
 JMD, 
 
 Circuit Court Commissioner, 
 
 CountT, Michigan. 
 
 Dated , A. D. IB- 
 statement OF commissioner's fees AND DISBURSEMENTS RE- 
 FEE KED TO IN FOREGOING REPORT. 
 
 Printer's bill $ 
 
 Drawing advertisement 
 
 Posting notices 
 
 Mileage 
 
 Advertising sale 
 
430 
 
 BILLS TO FORECLOSE MORTGAGES. 
 
 Decree and Sale-^Order Confirming Sale — ^Affidavit of Posting Notices 
 
 15c. 
 
 Adjourning sale 
 
 Mileage 
 
 Attending and making sale. 
 Mileage both ways @ 10c. . . 
 Executing and making deed . 
 
 Certifying payment 
 
 Report of sale Folios @ 
 
 No. 172. Order confirming sale. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery, 
 
 AB, \ 
 
 Complainant, j 
 vs. 
 CD, 
 
 Defendant. 
 
 On filing the commissioner's report of sale of the premises 
 described in the bill of complaint entered in this cause, and 
 on motion of H & K, solicitors for the said complainant-, it is 
 ordered, that said sale and all things thereto pertaining, be 
 and stand coniirmed, unless cause to the contrary be shown 
 within eight days from this date. T F G, 
 
 H & R, Register in Chancery. 
 
 Solicitor for complainant-. 
 
 Affidavit of posting notices. 
 
 J M D, of , in said county, 
 
 being duly sworn, deposes and 
 
 that on the day of , 
 
 A. D. 18 — , he posted up one notice 
 
 of sale of real estate, of which 
 
 the annexed printed notice is a true 
 copy, at each of the following named 
 
 places in the , of , in said 
 
 county, to wit: One at .one at 
 
 , and one at , being three 
 
 of the most public places in said 
 
 , and that said notices were 
 
 conspicuously and securely posted. 
 
 Subscribed and sworn to before 
 
 me, this day of , A. D. 
 
 18—. C A J, 
 
 No. 173. 
 
 State of Michigan. ) 
 County of Kalamazoo, j 
 
 {Here paste copy of 
 notice posted.') 
 
 Notary Public, 
 County, Mich. 
 
BILLS TO rORECLOSB MOETGAGES. 431 
 
 Decree and Sale — Affidavit of Posting Notices. 
 
 No. 174. Commissioner's deed. 
 
 This indenture, made the day of in the 
 
 year of our Lord one thousand eight hundred and 
 
 between a circuit court commissioner in and for 
 
 the county of residing in the party of the first 
 
 part, and part — of the second part, witnesseth: 
 
 whereas, at a session of the circuit court for the county of 
 
 in chancery, sitting at the court house, in the 
 
 on tlie day of in the year one thousand eiglit 
 
 hundred and , it was, among other things, ordered, 
 
 adjudged, and decreed by said court in a certain cause tlien 
 pending in said court, between A B as complainant, and C 
 .1) as defendant, for the purpose of foreclosing a certain mort- 
 gage bearing date on the day of 18 — , and re- 
 corded in the office of the register of deeds in and for the 
 
 county of , liber of mortgages on page — , on 
 
 the day of 18 — , 
 
 That all and singular, the mortgaged premises mentioned 
 and set forth in the pleadings of said cause, described as fol- 
 lows {describe premises), or so much thereof as may be necessary 
 to satisfy the amoimt due, said complainant for princiual and 
 interest, and costs of this suit, be sold by or under the direc- 
 tion of , the circuit court commissioner in and for said 
 
 county, at public auction, in the county where the said mort- 
 gaged premises, or the greater part thereof, are situated, the 
 said commissioner first giving public notice of the time and 
 place' of said sale, according to the course and practice of 
 said court. 
 
 And whereas, tlie said party of the first part to these pres- 
 ents, in pursuance of the order and decree of the said court 
 
 did, on the '■ — day of — ' in the year one thousand 
 
 eight hundred and — sell at public auction, at 
 
 in the county of the said mortgaged premises herein- 
 after particularly described, having first given the previous 
 notice of the time and place of said sale, as required by the 
 order and decree aforesaid; at which sale the premises were 
 struck off to the said part — of the second part to these 
 
 presents, for the sum of dollars, that being the highest 
 
 sum bidden for the same, and he the highest bidder there- 
 Jo r. 
 
 Now therefore, this indenture witnesseth, that the said 
 
 circuit court commissioner for the county of 
 
 and State of Michigan, and the party of the first part to these 
 
432 BILLS TO FORECLOSE MORTGAGES. 
 
 Decree and Sale — Re-opening Sale and Resale. 
 
 presents, in order to carry into effect the said sale so made as 
 aforesaid, in pursuance of the said decree and order of said 
 court, and also by virtue of the statute in such case made and 
 provided, and in consideration of tlie premises and of the 
 
 sum of q dollars, paid by the said part — of the second 
 
 part to these presents, to the said party of the first part hereto, 
 the receipt whereof is hereby confessed and acknowledged, 
 hath granted, bargained, sold, aliened, released, conveyed and 
 confirmed, and by these presents dolth grant, bargain, sell, 
 alien, release, convey and confirm unto the said party of the 
 
 second part, and to heirs and assigns, forever, all the 
 
 following lands and premises situated in the of 
 
 in county and State of Michigan, and known and de- 
 scribed as follows {describe premues): 
 
 Together, with all and singular the rights, titles, members, 
 privileges, hereditaments and appurtenances to tiie same be- 
 longing or in anywise appertaining: To have and to hold the 
 said premises above described and hereby intended to lie 
 
 granted and conveyed unto the said part of the second 
 
 part, heirs and assigns, to and only 
 
 proper use, benefit and behoof, forever. 
 
 In witness whereof, the said party of the first part, circuit 
 court commissioner, as aforesaid, has hereunto set his hand 
 and seal the day and year first above written. 
 
 Circuit Court Commissioner, [l. s.J 
 County, Michigan. 
 
 Signed, sealed and delivered in presence of 
 
 E. F. 
 
 G. II. [l. S.J 
 State of Michigan, "I 
 
 County of — ' j 
 
 On this day of A. D. 18 — , before the under- 
 signed, personally appeared — — , a circuit court commis- 
 sioner for the county of in said State, known to me to 
 
 be the person described in and who executed the above indent- 
 ure, and acknowledged that he executed the same freely for 
 the uses and purposes therein mentioned. 
 
 Notary Public, 
 
 County, Michigan. 
 
 Re-opening sale and resale. — As we have already seen the 
 court of chancery, may set aside or confirm a sale, or if it 
 deems it proper, order a re-sale of the premises. An applica- 
 
BILLS TO rOEECLOSE MORTGAGES. 433 
 
 Decree and Sale — Writ of Assistance. 
 
 tion to re-opon a sale or to re-sell premises, should be made 
 upon petition to the court, or upon special motion founded 
 upon affidavits, due notice in either instance being given to 
 the adverse party. In order to entitle a party to the aid of 
 the court, in the matter now under consideration, he should 
 clearly satisfy the court, that tliere are strong equities in his 
 favor, especially, if the application is made by a purchaser, 
 (a) Inadequacy of price is sometimes alleged as a reason for 
 re-opening a sale. To make this a ground, the inadequacy 
 must be so glaring as to raise a presumption of fraud, and 
 even then the court will not disturb the sale, unless in addi- 
 tion it is shown that elements of unfairness exist. (5) 
 
 Among the grounds that are alleged as other reasons for 
 setting aside sales, are irregularity, fraud, mistake, misappre- 
 hension and surprise. A much stronger case must be made 
 to set aside a sale, after than before the report of sale has been 
 confirmed, (c) On the application to set aside a sale, the 
 court will not consider tlie regularity of the foreclosure- pro- 
 ceedings, (d) If a party claims surprise, he must sliow that it 
 did not arise through his own negligence, (e) Where, after 
 confirrnation he claims fraud, he must show that it was un- 
 known to him at the time of the confirmation. He must show 
 that the matters complained of have not arisen tlirough any 
 %ult of his own, and that he has not been negligent or guilty 
 of laches. 
 
 Writ of assistance. — The court has power to compel the 
 delivery of the premises to the purcliaser, (_/) and, after the 
 confirmation of the order of sale, and the purchaser lias receiv- 
 ed his deed from the commissioner, a writ of assistance may 
 
 (a) Ledyard v. Phillip!', 82 Mich. 14-. 
 
 (6) Burtch V. Hogge, Har. Ch. 31; Ballard v. Green, 10 Mich. 268; Gj7- 
 hert V. Haire, 43 Mich. 283; Hart v. Linsay, Walk. Ch, 72; Leonard v, 
 Taylor, 12 Mich, 398; Goodwin v. Burns, 21 Mich. 211. 
 
 (c) Bullard v. Green, 10 Mich. 268. 
 
 (d) Demaray v. Littl , 19 Mich. 244. 
 
 (e) Ibid. 
 
 (/jComp. L. 1871, § 5148. 
 
 28 
 
434 .'BILLS TO FORECLOSE MORTGAGES. 
 
 Surplus and Deficiency — Proceeds of Sale, when Brought into Court. 
 
 be granted. (5) It can never be properly allowed when there 
 is any real controversy as to the rigli.t of possession not pre- 
 chided by tlie decree, (c) The purchaser is only entitled to the 
 assistance of the court as against the parties to the suit and 
 those who have come into possession under them subsequent 
 to the filing of the notice of lis pendens; {d) and a writ of as- 
 sistance will not be granted against persons who were, in pos- 
 hession of the premises at the time of the commencement of 
 the suit, and who were not made parties, (e) 
 
 How writ of assistanoe is obtained. — ^To obtain a writ 
 of assistance, the purchaser should take his commissioner's 
 deed, and a certiiied copy of the order confirming the sale, 
 with tlie seal of the court impressed thereon, and show the same 
 to the defendant or party in p®ssession, and demand possession 
 of the premises. Upon being refused, he should apply to the 
 court for the writ. (/) The application is made by special 
 motion, or petition, and a notice of the motion with copies of 
 tlie afiidavits or petition on which it is founded, must be serv- 
 ed upon the defendant and the party in possession, (g) "When 
 by decree the Supreme Court allows a writ of assistance, it 
 should issue from the circuit court, {h) 
 
 SECTION VIII. 
 
 SURPLUS AND DEFICIENCY. 
 
 Proceeds of sale, when lyrought into court. — The proceeds 
 of every sale made under a decree in chancery, shall be ap- 
 plied to the discharge of the debt adjudged by such court to 
 be due, and of the costs awarded; and if there be any surplus, 
 
 (6) Hoioardv. Bond, 42 Mich. 131; Summers v. Bromley, 28 Mich. 125. 
 
 (c) Baiter v. Pierson, 5 Mich. 456; Eamsdell v. Maxwell, 32 Mich. 285; 
 Howard v. Bond, 42 Mich. 181. 
 
 (d) Benhard v. Darrmv, Walk. Ch. '519. 
 
 (e) RamsiUllv. Maxwell, 32 Mich. 285; Howard v nond, 42 Mich. 131. 
 { /) Hart V. Lindsay, Walk. Ch. 144. 
 
 {g)Benhardv. Darrow, Walk. Ch. 519. , 
 
 {h) Rtjerson v. Eldred, 18 Mich. 195. 
 
BILLS TO FORECLOSE MORTGAGES. '435 
 
 Surplus and Deficiency — How Disposed oif. 
 
 it shall be brongKt into court for the use of the' defendant or 
 of the person entitled thereto, subject to the order of the 
 eonrt. (a) If such surplus or ai\y part remains in the court for 
 the term of three months without being applied for, the cir- 
 cuit judge may direct the same to be put out at interest uilder 
 the direction of the court, for the benefit of the defendant, his 
 representatives or assigns, to be paid to them by the order of 
 such court, (i) 
 
 How disposed of. — The rule provides (c) that on the com- 
 in'r in and confirmation of the commissioner's report of the 
 sale of mortgaged premises, if it shall appear that there is any 
 surplus money remaining in court after satisfying the amount 
 due the complainant, any defendant on filing an affidavit that 
 such [surplus has been paid into court, and that he is entitled 
 to the same or some part thereof, may have an order of course, 
 referring it to a commissioner to ascertain and report the 
 amount due to such defendants, or to any other person, and 
 which is a lien upon such surplus moneys; and to ascertain 
 the priorities of the several liens thereon ; to the end that on 
 tlie coming in and confirmation of the report, such further of- 
 der and decree may be made for the distribution of surplus 
 moneys as may be just; and every defendant who has appear- 
 ed in the cause, and every person wht) has left a written no- 
 tice of his claim to such surplus njoneys witli the register or 
 assistant register, where the same are deposited, shall be enti- 
 tled to notice to attend the commissioner on such reference 
 And any person making a claim to such surplus moneys who 
 shall fail to establish his claim on the hearing before the com- 
 missioner, may be charged with such costs as the other parties 
 have been subjected to by reason of such claim; and the par- 
 ties succeeding on such reference may be allowed such costs as 
 by the court may be deemed reasonable; but no costs unnec- 
 essarily incurred on such reference, or previo\TS thereto, by any 
 
 (a) Comp. L. 1871, § 5155; see Hanford^. Bobertson, 47 Mich., Oct. 
 Term, 1881. 
 (6) Comp. L. 1871, § '5156. 
 (c) Chancery Rule 93. 
 
436 BILLS TO FORECLOSE MORTGAGES. 
 
 Surplus and Deficiency — Execution for Deficiency — How to Obtain Execu'n. 
 
 of the parties, shall be allowed on taxation to be paid out of 
 such surplus. 
 
 It has been held, that all the parties to the suit must have 
 notice of an application for surplus money; {a) and if the own- 
 er of the equitjof redemption dies, subsequent to the sale, 
 his personal representatives should also have notice of the 
 application. (5) The manner of proceeding before the com- 
 missioner has been previously referred to. (c) 
 
 Execution for deficienoy. — The power given the court by 
 statute id) upon the coming in of the report of sale to decree 
 payment by the mortgagor of any deficiency, and if the debt 
 is secured by the obligation or other evidence of debt, of any 
 other person, a like decree for deficiency against them, and 
 to issue execution therefor is an innovation upon original 
 equitable jurisdiction. It is not a continuation of the fore- 
 closure, but is new and supplementary. It can only be prop- 
 erly authorized, and the execution can only be properly issued, 
 upon the confirmation of the report, showing deficiency, (e) 
 Before an execution for deficiency can issue there must be a 
 special application to the court, {f) 
 
 How to obtain execution for deficiency. — To obtain an 
 execution for deficiency, the complainant must present to the 
 court a sworn petition, or application in writing, setting forth 
 the facts which give the right to it, and praying the court to 
 direct its issue. It must be served, if possible, upon the de- 
 fendant against whom the relief is sought, and at the same 
 time serving him with written notice of the time when and 
 the place where the application will be presented to the court. 
 
 i [a) Smith v. Smith., 13 Mich. 25§. 
 (6) Ibid. 
 
 (c) Ante, page 435; Chancery Rules 70, 71, 72,. 73, 74, 75, 57. 
 
 (d) Comp. L. 1871, §§ 5148, 5150. 
 
 (c) Johnson v. Shephard, 35 Mich. 122; Mickle v. Maxfield, 42 Mich. 304; 
 Howe y. Lemon, 37 Mich. 164; Oies v. Greeih, 42 Mich. 107; Brown v. 
 Thompson, 29 Mich. 72. 't 
 
 (/) Gies y. Oreen, 42 Mich. 107; Howe v. Lemon, 37 Mich. 164. 
 
BILLS TO FORECLOSE MORTGAGES. 437 
 
 Instal'ment Due, Proceedings on — When Bill Dismissed, etc. 
 
 In cases where personal service cau not be obtained, the 
 court, npon a showing of the facts, may direct substituted 
 service, (a) 
 
 Answer to the application. — The defendant against whom 
 an execution for deticieiicy is sought, if he desires to resist 
 the application, may reply by an answer, stating therein the 
 grounds of his objection. The answer must be sworn to and 
 placed on file, and in resisting the application the burden is 
 upon the defendant of showing matter "in discharge of the de- 
 cree; for the decree of foreclosure adjudging the defendant 
 personally liable for a deficiency, taken together with the re- 
 port of the deficiency, makes out a ^rr/na _/ac*e case against 
 liira. The defendant can resist the application only on grounds 
 that are not inconsistent with the decree, and such as usually 
 operate in its discharge. If his ansvver presents matter of 
 discharge of the decree, the complainant can take issue on it, 
 and in proper cases the court may order a reference to a com- 
 missioner to take proofs. (5) 
 
 SECTION IX. 
 
 INSTALLMENT DUE, PEOCEEDINGS ON. 
 
 When Mil dismissed. — Whenever a bill shall be filed for 
 the satisfaction or foreclosure of any niortgaijje, npon which 
 there shall be due any interest, or any portion or installment 
 of tlie principal, and there shall be other portions or install- 
 ments to become due subsequently, the bill shall be dismissed 
 upon the defendants bringing into court at any time before 
 the decreexof sale, the principal and interest due and costs, (c) 
 
 When proceedings to he stayed. — If, after a decree for sale 
 entered against a defendant in such a case, he shall bring into 
 
 [a) Ransom v. Sutherland, 46 Mich. '489. 
 iV) Ransom v. Sutherland, 46 Mich. 489. 
 
 (c) Comp. Laws 1871, § 5157; Brown y. Thompson, 29 Mich. 74; Vaughn 
 V. Nims, 36 Mich. 298. 
 
438 BILLS TO FORECLOSE MORTGAGES. 
 
 Installment Due — ^Reference to Certain Cases, etc. 
 
 Court'the priilci]f)al afl'd iMtetest due, with costs, the proceed- 
 ings in th& suit shall be stayed; but tlie court shall enter a 
 decree of foreclosure and sale, to be enforced by a further or- 
 der of the court upon a subsequent default in the payment of 
 any portion or installment of the principal, or of any interest 
 thereafter to grow due. {a) 
 
 Reference in certain cases. — If the defendant shall not bring 
 into court the amount due, with costs, or if for any other 
 cause a decree shall pass for the complainant, the court may 
 direct a reference to a comtnissioner, to ascertain and report 
 the situation of the mortgaged premises, or may determine 
 the same on oral or other testimony; and if it shall appear 
 that the same can be sold in parcels, without injury to the 
 interests of the parties, the decree shall direct so much of the 
 mortgaged premises to be sold, as will be sufficient to pay the 
 amount then due on such mortgage, with costs; and such de- 
 cree shall remain as security for any subsequent default. (J) 
 
 Default suhsequent to decree. — If in the case mentioned in 
 the last paragraph, there shall be any default subsequent to 
 such decree, in the payment of any portion or installment of 
 the principal, or of any interest due upon such mortgage, the 
 court may, upon the petition of the complainant, by a further 
 order founded upon such first decree, direct a sale of so much 
 of the mortgaged premises to be made under such decree 
 as will be sufficient to satisfy the amount so due, with the 
 costs of such petition and the subsequent proceedings thereon, 
 and the same proceedings may be had as often as a default 
 shall happen, (c) 
 
 Premises, when entire, sold. — If, in any of the foregoing 
 cases, it shall appear to the court that the mortgraged prem- 
 ises are so situated that a sale of the whole will be most bene- 
 
 [a) Comp. L. 1871, § 5158; Brown v. Thompson, 29 Mich. 74; Perkins 
 V. Perkins, 16 Mich. 162. 
 (&) Co'iip. L. 1871,15159. 
 {(■) Comp. L. 1871, § 5160. 
 
BILLS TO FORECLOSE MORTGAGES. 439 
 
 Installment Due— Application of Proceeds when all Sold. 
 
 ficial to tlie parties, the decree shall in the first instance be 
 entered for the sale of the whole premises accordingly. («) 
 
 Apflication of proceeds wh'en all sold. — In such case the 
 proceeds of such sale sliall be applied as well to the interest, 
 portion or installment of the principal due, as toward the 
 whole or residue of the sum secured by such morti!;age, and 
 not due and payable at the time of such sale, and if such resi- 
 due do not bear interest, then the court may direct the same 
 to be paid with a rebate of the legal interest, for tlie time 
 during which such residue shall not be due and payable; or 
 the court may direct the balance of the proceeds of such sale, 
 after paying the sum due, with costs, to be put out at interest 
 for the benefit of the complainant, to be paid to him as the 
 installments or portions of the principal or the interest mav 
 become due, and the surplus for the benefit of the defendant, 
 his representatives or assigns, to be paid to them on the or- 
 der of the court. (5) 
 
 We have already considered the manner in which a defend- 
 ant not served with process, but brought in by publication, may- 
 appear after decree, (e) 
 
 (a) Comp. L. 1871, § 5161. 
 (6) Comp. L. 1871, § 5162. 
 (c) Ante, page 75. 
 
440 CREDITOR'S BILL. 
 
 When a Creditor's Bill may be Filed. 
 
 CHAPTER XXIX. 
 
 Section 1. When a Creditor's Bill mat be Filed. 
 
 2. What mat be Reached by. 
 
 3. Parties to the Bill. 
 
 4. Priobity and Lien op Bills. 
 
 5. Frame op Bill. 
 
 6. Receiver. 
 
 SECTION I. 
 
 The jurisdiction of a court of chancery in suits brought by 
 judgment creditors to enforce the collection of their judg- 
 ments, after having exhausted their remedy at law, al- 
 though it may have previously existed, is generally expressly 
 declared and particularly defined by statutes. The statute of 
 Michigan, with respect to bills of this nature, which is the 
 foundation of the present practice of the court in such cases, 
 in this State, is as follows : 
 
 "Whenever an execution against the property of a defend- 
 ant shall have been issued upon a judgment at law, and shall 
 have been returned unsatisfied in whole or in part, the party 
 suing out such execution may file a bill in chancery against 
 such defendant, and any other person to compel the discovery 
 of aiiy property or thing in action belonging to the defendant, 
 and of any property, money or things in action, or the pay- 
 ment or delivery thereof to the defendant, except where such 
 trust lias been created by, or the fund so held in trust has 
 proceeded from, some person other than the defendant. The 
 court shall have power to compel such discovery, and pre- 
 vent such transfer, payment, or delivery, and to decree satisfac- 
 tion of the amount remaining due on such judgment, out of 
 
CREDITOR'S BILL. 441 
 
 When a Creditor's BUI may be Filed — When Proper. 
 
 any property, mopey or things in action belonging to the 
 defendant, or held in trust for him, with the exception above 
 stated, which shall be discovered by the proceeding in chan- 
 cery, whether the same were originally liable to be taken in 
 execution at law or not : Provided, This act shall not apply 
 to propert}- exempt from execution." {a) 
 
 The statutes of Illinois and New York upon this subject 
 are almost identical with our own. (b) The decisions of those 
 States are therefore of peculiar value in regard to the plead- 
 ings and practice under it. 
 
 When proper. — It was held in the case of Williams v. 
 Huhhard, (c) that there are two classes of cases in which a 
 judgment creditor may come into a court of chancery for re- 
 lief: First, in aid of his execution at law; as to set aside an 
 incumbrance or a transfer of property made to defraud credit- 
 ors. Second, to have his judgment paid out of choses in 
 action, or other property of the debtor not liable to execu- 
 tion, [d) Relief is given in these two classes upon different 
 principles. In the first class, on the ground of fraud, and in 
 tiie other on the ground that the complainant has exhausted 
 I'lis remedy at law, and that it is inequitable and unjust for 
 the debtor, under such circumstances, to refuse to apply any 
 choses 'in action, or other property belonging to him not liable 
 to execution, in payment of the judgment. To entitle a party 
 to the aid of the court in the first class of cases, an execution 
 must have been issued, but it is not necessary that it should 
 have been returned ;(e) or, if it has been, that a new execu- 
 tion has been taken out. The right to come into court for 
 relief in this class of cases is complete the moment the execu- 
 tion issues. The fraudulent conveyance then works an injury 
 to the creditor, by hindering and delaying him in the collec- 
 
 (a) Comp. L. 1871, §§ 5060, 5061. 
 
 (6) Illinois Rev. Stat. (1874) 203; (1877) 189; New York Rev. Stat. 
 
 (c) Walk. Ch. 28. 
 
 (d) Beck V. Burdett, 1 Paige, R. 305. 
 
 (c) Williams v. Hubbard, Walk. Ch. 28; Clarhgoit v. De Feyster, 3 
 Paige, R. 320; McElwaiiiY. Willis, 9 Wend. R. 548. 
 
442 OREDITOR'S BILL. 
 
 When a Creditor's Bill may be Filed — When Proper. 
 
 tion of his judgment, {a ) Bnt when the creditor asks to have 
 his judgment satisfied out of property belonging to the debtor, 
 not liable to execution, he must show not only that an execu- 
 tion has been taken out, but that it has been returned unsatis- 
 fied in whole or in part. 
 
 This should be shown by the ofiieer's return to the writ, which, 
 to be a good and sufficient return for that purpose, should be 
 such a return as would subject the officer to an action at the 
 suit of the debtor, for a false return, if a bill should be filed 
 against him when he had property that might liave been levied 
 on, and sold to satisfy the execution. (5) 
 
 As stated in the case from which we have quoted, a creditor 
 mubt first obtain a valid judgment and seek to collect his debt 
 by execution before he can resort to the equitable estate of his 
 debtor, (o) A bill in aid of execution can not be so drawn 
 as to reach property that is not leviable if filed while the exe- 
 cution is still in force and unreturned. {d) 
 
 In order to maintain a strict creditor's bill within the mean- 
 
 (a ) Walk. Ch. 28; Thayer v. Swift, Har. (Jh. 450; Messmore v. , 46 
 
 Mich. 
 
 (6) Williams v. Hubbard, Walk. Ch. 28. 
 
 (c) Smith T. Thompson, Walk. Ch. 1; Millar v. Babcock, 29 Mich. 526; 
 Thayer V. Swift, Har. Ch. 432; Freeman v. Mick. State Bank, Walk. Ch. 68: 
 Wharton Y. Fitch, Walk. Ch. 143; Beach v. White, Walk. Ch. 495; Staf- 
 ford V. Hulbert, Har. Ch. 430; Eldred v. Camp, Har. Ch. 162; Steward v. 
 Stevens, Har. Ch. 169; Williams v. Hubbard, 1 Mich. 446; Kellogg v. 
 Hamilton, 4B Mich. 269; Maynardv. Hosjcins, 9 Mich. 485; Tyler v. Pratt, 
 .30 Mich. 63; Ishmael v. Parker, 13 111. 324; Boy t. Cook, 31 111. 336; Hea- 
 cock V. Durand, 42 III. 230; McConnel v. Dickson, 43 111. 99; Newman v. 
 Willetts, 52 111. 98; see Duberry v. Clifton, Cooke, 328; Morgan v. Crabb, 
 3 Porter, 470; Wright v. Petrie, 1 S. & M. Ch. 282; Scott v. Wallace, 4 J. 
 J. Marsh. 654; Danna v. Banks, 6 Id. 219; Wooley v. Stone, 1 Id. 302; 
 Beck V. Burdett, 1 Paige, Ch. 305; McElicain v. W^jTZis, 9 Wend. 548; ~ 
 Screven v, Bosfick, 2 McCord, Ch. 410; Clark v. Banner, 1 Dev. & Bat. Ch. 
 608; McDermot v. Blois, Charl. R. M. 281; Parish v. Lewis, 1 Freem. Ch. 
 299; West v. McCarty, 4 Blackf. 244; Kelso v. Blackburn, 3 Leigh, 299; 
 Bice V. Barnard, 20 Vt. 479; North Am. Fire Ins. Co. v. Graham, 5 Sandf. 
 197; Barrotv v. Bailey, 5 Florida, 9; U. S. v. Sturges, 1 Paine's R. 525; 
 Moshierv. Meek, 80 111. 79; Lawsonv. Grubbs, 44 Geo. 466; Goembel v. 
 Arndt, 100 III. 34; C. D. d: V. R. R. Co. v. Town of St. Anne, 101 111. 151. 
 
 [d) McCiillough v.' Dat), 45 Mich. 5D4. 
 
CREDITOR'S BILL. 443. 
 
 When Filed — Justice's Judgment — In United States Court. 
 
 ing of the section of the Michigan statute, which we have 
 quoted, the remedy at law must appear to have been exhaust-- 
 ed by obtaining a judgment, and, if the defendant was not 
 insolvent, an execution returned nulla iona. («) But the law 
 is otherwise where a creditor by his bill merely seeks to re- 
 move a fraudulent conveyance out of the way of his e.xecu- 
 tion. But in tliat case the bill must show that the judgment 
 was an existing lien on the property conveyed. If it appears 
 that a ,year had elapsed after the rendition of the judgment 
 without an execution being issued thereon, the bill can not be 
 maintained. (5) The bill must be filed within a reasonable 
 time after the return of the execution, (c) 
 
 Justice^ s judgment. — A judgment before a justice of the 
 peace is a sufficient foundation for a creditor's bill, if tiie 
 amount is large enough to confer jurisdiction on the court, {d) 
 In such a case it would seem to be the proper practice to have 
 a transcript of the justice's judgment filed in the circuit court, 
 and an execution issued from the circuit and returned unsat- 
 isfied. 
 
 In United States court. — A creditor's bill may be filed in 
 the circuit court of the United States, in the mode authorized 
 by the local state law. (e) But a bill will not lie in a State 
 court on a judgment obtained in the federal court. (/") 
 
 (a) Miller v. Davidson. 3 Gilm. 518; Newman v. Willetts, 52 III. 98; and 
 see Michigan cases cited in the previous note. 
 
 (6) Newman v. Willetts, 52 111. 98; Welghtman v. Hatch, 17 111. 2>1; see 
 also, Greenway-f. Thomas, 14111.271; Turners. Adams, 46 Mo. 95; Web- 
 ster y. Folsom, 58 Maine, 230; Bailey x. Burton, 8 Wend. 339; Weis y. 
 Tieriian, 91 111. 27; Shufeldt v. Boehm, 96 111. 560; see Lucas v. Lucas, 103 
 111. 121. 
 
 (c) Gould V. Tryon, Walk. Ch. 353. 
 
 (()!) Steere V. Soagland, 39 111.264; Smsfs v. Williams, 4: Paige, 336; 
 Vancliefy. Sickles, 5 Paige, 506; 2 Hoff. Ch. Pr. l2l. 
 
 (e) Suydam v. Beals, 4 McLean, 12; Lanmnn v. Clarh, Id. 18; Wilkin- 
 son V. Yale, 6 McLean, 16; see Babcock v. Willard, 4 West. Iiaw Month- 
 ly, 814. 
 
 {/) Steere v. Hoagland, 39 111. 264. ' 
 
444 CREDITOR'S BILL. 
 
 What may be Reached by. 
 
 The creditor's bill being a harsh remedy, the relief sought 
 ■will not be granted unless the creditor shows a strict and rigid 
 compliance with the rules and forms of law. (a) 
 
 SECTION II. 
 
 ■WHAT MAT BE BEACHED BY. 
 
 Upon a creditor's bill every species of property helonging 
 to the debtor may be reached and applied to the satisfaction 
 of his debts; and his debts, choses in action, and other equi- 
 table rights, may be assigned or sold under the decree of the 
 court for that purpose. (5) 
 
 Upon a bill of this nature the complainant may reach the 
 defendant's interest in the effects of a copartnership, after 
 pay meiit of the partnership debts, and satisfying all prior equi- 
 ties in favor of his copartners, (e) So, where an express trust 
 has been created to receive the interest or income of trust 
 property, and to apply it to the use of a person from time to 
 time, the surplus beyond what is necessary for his support and 
 maintenance may be reached by a creditor's bill, after such 
 intei-est or income has become due. {d) 
 
 A creditor's bill will not lie to reach assets of the debtor 
 which the latter can not recover in an action in his own 
 name, (e) 
 
 On a creditor's bill, the court may so control the custody 
 of negotiable notes, and provide for demand and notice, as to 
 
 (rt) Thatjer v. Sieift, Har. Ch. 430; Tyler v. Pratt, 3l) Mich. 62; Preslon 
 V. Wilcox, 38 Mich. 578. 
 
 (ft) Edmeston v. Lijde, 1 Paige, Ch. 637; see Craig v. Hone, 2 Ed-w. Ch. 
 554; Weed v. Pierce, 9 Cow. 722; Congdenv. Lee, 3 Edw. Ch. 304; Thomp- 
 son V. Nixon, lb. 457; Brewxter v. Power, 10 Paige, Ch. R. 562; Benson 
 V. LeBuy, 4 Johns, Ch..R. 6')1; Cohen v. Carroll, 5 S. & M. 545; Wagoner 
 y. Speck, SRa.m.2U; Piatt y. Judson, 3 Blackf. 235; Demaree v. Dris- 
 kell, lb. 115; Griswold v. Fuller, 33 Mich. 273. 
 
 (c) Eager v. Price, 2 Paige, Ch. R. 334. 
 
 (d) ciute V. Bool, 8 Paige, Ch. R..83; see Craig v. Hone, 2 Edw. Ch. 554. 
 
 (e) Bonte v. Cooler, 90 111. 440. 
 
CREDITOR S BILL. 445 
 
 What may be Reached by. 
 
 prevent their being negotiated, and protect the rights of all 
 parties thereto, {a) 
 
 The complainant, by his bill, can only reach the property 
 which belonged to the defendant at the time of the commence- 
 ment of the suit, or the proceeds of the property and effects in 
 wliich he then had an interest. If he wishes to reach after 
 acquired property, he must file a supplemental bill. (J) Upon 
 this principle it has been held, that the complainant in a cred- 
 itor's bill can not reach the salary or compensation which is 
 to become due to the defendant at a future time, for the per- 
 formance of services which had not been completed at the 
 time of filing the bill, in a ease where the defendant would 
 have no legal or equitable right to demand payment for the 
 services already performed, if he should tliereafter neglect to 
 complete the unperformed services, (c) Where work is per- 
 formed by the piece or lot, the wa^'es therefor may be reached 
 by a creditor's bill, filed after the work has been performed, 
 though before the customary day of payment, {d) 
 
 The interest of a debtor, under a contract for the purchase 
 of land, can be reached by a creditor's bill, (e) So. a note held 
 by a defendant, secured by a deed of trust on land, may be 
 subject to a creditor's bill, and the land conveyed by the deed 
 of trust be sold to pay it. {f) 
 
 Where a debtor purchased land with-his own money, and took 
 the convej'ance in the name of his infant son, for the purpose 
 of securing the land against his debt, it was held that the 
 creditor, at the time of such conveyance, having obtained a 
 judgment, might, by bill in equity. Subject the land to his 
 debt, ig) 
 
 {a) Buckcoc'k v. Millard, 4 West. Law Mo. 314. 
 
 (6) Sampson v. Taylor, oit^d in 2 Barb. Ch. Pr. 153. 
 
 (c) Browning v. Bettis, 8 Paige, Ch. 56 ; McConn v. Dorsheimer, 1 
 Clarke, 144. 
 
 (d) Thompson v. Nixon, 3 Edw. Ch. 457. 
 
 (e) Brewster v. Power, 10 Paige, Ch. 562. 
 (/) Cohen v. Carroll, 5 S. & M. 545. 
 
 {(/) Demaree v. Driskell, 3 Blakf. 115; see Weightman v. Hatch, 17 111. 
 281; Moritz V, Hoffman, 35 111. 553; Newman \. Willetts, 52 111. 98; Mugge 
 
446 CREDITOR'S BILL. 
 
 Parties to the Bill — Complainants. 
 
 In Michigan, lands wjiich a judgment debtor has purchased 
 since 1846, and caused to be convej'ed by the vendor directly 
 to a third person to defVaild his creditor, are not subject to 
 sale and execution. The legal title resting in the grantee, 
 the only remedy for creditors is to take out their execution, 
 and the same being returned unsatisfied, to then file a credit- 
 or's bill and thus reach the trust in favor of creditors, {a) 
 When tlie person taking a conveyance in his own name, does 
 so in fraud of the rights of the person paying the consideration, 
 or without his consent, the statute does not apply. In such 
 case the trust results to the one who furnishes the purchase 
 inoney. (b) 
 
 SECTION III. 
 
 PARTIES TO THE BILL. 
 
 Complainants. — A creditor may file his bill in his own 
 name, for his own benefit, without joining other creditors; (c) 
 or he may file a bill in behalf of himself and all others, 
 being judgment creditors, whose executions have been re- 
 turned unsatisfied, and who may choose to come in and contrib- 
 ute to the expense of the suit, (d) But a creditor can not sne 
 on behalf of himself and others who have no common interest 
 with him {g) 
 
 Judgment creditors, who have exhausted their remedies at 
 
 V. Ewing, 54 111 236; Mann v. Riiby, 102 111. 348; Jackson v. Miner, 101 
 111. 550. 
 
 (a) Comp. L. 1871, §§ 4120, 4121; Trash v. Green, 9 Mich. 358; Goes- 
 heck V. Seeley, 13 Mich. 329; Palmer v. Sterling, 41 Mich. 221; Maynard 
 V. Hoskins, 9 Mich. 485; Weare v. Linnell, 29 Mich. 224; Hooker v. Ax- 
 ford, 33 Mich. 454; Brown v. Bronson, 35 Mich. 415; Munch v. Shabel, 37 
 Mich. 137; Russell v. Miller, 26 Mich. 3; Jacksonv. Cleveland, 15 Mich. 
 94; Harwood v. Underwood, 28 Mich. 431. 
 
 (6) Comp. L. 1871, § 4122 ; Linsley v. Sinclair, 24 Mich. 3S0; Fisher v. 
 Fohes, 22 Mich. 454; Ransom v. Ransom, 31 Mich. 301. 
 
 (c) Balentine v. Biall, 3 Scani. 203. 
 
 {d) Edmeston v. Lyde, 1 Paige, Ch. 637; Wakeman v. Graver, 4 Paige, 
 Ch. 28; Lentilhonv. Moffat, 1 Edw. Ch. 451. 
 
 (e) Burney v. Morgan, 1 Sim. & Stu. 358. 
 
CREDITOR'S BILL., 447 
 
 Parties to the BiU — Defendants. 
 
 law, may unite in a bill to set aside a fraudulent assignment 
 by their debtor, {a) So, if one creditor by judgment, and an- 
 other by decree, have acquired liens upon the property of their 
 debtor, they may join in tiling such a bill, {b) But as to 
 property, on which no creditor has obtained a lien by judg- 
 ment and execution, a creditor who has exhausted his legal 
 remedy may file a bill for his own benefit only, without mak- 
 ing other creditors, standing in the same situation, parties, (c) 
 Other creditors may come in after the bill has been filed; {d) 
 and the court should call in all the creditors of the estate to 
 receive dividends, (e) 
 
 Where theplaintitf in a judgment, after execution thereon 
 returned unsatisfied, assigns the judgment, the assignee may 
 file a bill of this nature in his o\vn name, without taking out 
 a new execution after the assignment. (/") 
 
 Where a party indorses a note upon which judgment is ob- 
 tained by the assignee, and on failure to collect the same, he 
 pays the assignee the amount of the judgment, taking an as- 
 signment thereof to himself, he will be subrogated to all the 
 rights of the judgment creditor, and may maintain a credit- 
 or's bill for the collection of such judgment, (g) 
 
 Defendants. — It is a general rule that all the parties against 
 whom the judgment was recovered, should be made parties 
 
 (a) Lentilhon v. Moffat, 1 Bdw. Ch. 451; Bailey v. Bui-ton, 8 Wend. 339; 
 Dunyan v. Vatlier, 3 Blackf. 245. 
 
 (6) Glarkson v. DePeyster, 3 Paige, Ch. 320. 
 
 (c) Wakeman v. Grover, 4 Paige, Ch. 23; McCalmont v. Laiorence, 1 
 Blatchf. C. C. R. 232; Pennell v. Lamar Ins. Co. 73 111. 303. 
 
 {d) The Bank, etc. v. Dunyan, 2 Bland, 254; see Story's Eq. PL § 99-102; 
 Myers v. Fenn, 5 Wallace, 205. 
 
 («) Kinney v. Harvey, 2 Leigh, 70; Williamson v. Wilson, 1 Bland, 418; 
 see. Brooks v. Gihhons, 4 Paige, Ch. 374; Farmlee v. Egan, 7 Paige, Ch. 
 610; Birley y. Staley, 5 Gill & J. 432; Skubrick v. Shubrick, 1 McCord, 
 Ch. 406; Wabash (& Erie Canal Co. v. Beers, 2 Black, U. S. R. 448. 
 
 (f) Andrews v. Kibbe, 12 Mich. 94; Gleason v. Gage, 7 Paige, Ch. 121; 
 ' Strange v. Longley, 3 Barb. Ch. R. 650 ; see to the contra. Storms v. Bug- 
 gies, 1 Clarke, 148. 
 (g) Crawford v. Logan, 97 111. 396. 
 
448 CREDITOR'S BILL. 
 
 Parties to the Bill — Defendants. 
 
 defendants to a bill of this nature, (a) But if one of them 
 is insolvent and wholly destitute of property, or out of the 
 jurisdiction of the court, or a mere surety for the other de- 
 fendants, it is not necessary to make him a party. These 
 facts must, however, be distinctly averred in the bill, or the 
 defendants may demur for want of parties. (5) Even where 
 one joint debtor has not been served with process at law, it 
 is proper to make him a party to the bill; for although his 
 separate property can not be reached directly, yet his co-de- 
 fendants, if compelled to pay the debt, may claim contrib- 
 ution, (o) 
 
 If the property of the judgment debtor, against whom an 
 execution has been returned unsatisfied, is in the actual pos- 
 session and control of his wife, under circumstances which 
 render it impossible to reach and obtain possession of it by 
 a creditor's bill filed against the husband alone, it seems a 
 bill may be filed against her and her hnsband jointly, so as 
 to obtain a decree which will reach the property in her hands 
 and compel her to deliver it up for the satisfaction of her 
 husband's debts, (d) 
 
 Judgment creditors are necessary parties in proceedings to 
 subject lands upon which they have liens to the payment of 
 other judgment liens, (e) 
 
 If a debtor ha? conveyed different portions of his prop- 
 erty to different persons, in fraud of his creditors, all the 
 grantees may be joined in one bill with the grantor. (_/") So, 
 two or more persons holding the property of the judgment 
 debtor under different conveyances, or becoming indebted to 
 
 {a) Child V. Brace, 4 Paige, Ch. R. 309; Commercial Bank of Lake 
 Erie v. Meach, 7 Paige, Ch. R. 449. Spear v. Campbell, 4 Scam. 424. 
 
 (h) Van Cleef v.. Sickles, 5 Paige, Ch. 505; Commerc'al Bank of Lake 
 jBnev. Jfenc/j, 7 PaigeCh.R. 449; Williams v. Hubbard, 1 Mich. 450. 
 
 (c) Id. lb.; 2 Barb. Ch. Pr. 155; see Thomas, Trustee, v. Adams, 33 
 111. 37. 
 
 (rf) Copous V. Kauffman, 8 Paige, Ch. 585; see Webster v. Folsom, 58 
 Maine, 280. 
 
 (e) Hoffman v. Shields, 4 W. Va. 490. 
 
 if) Fellows V. Fellows, 4 Cowen, 682. 
 
CREDITOR'S BILL. 449 
 
 Priority and Lien of Bills 
 
 him at diiferent times, or for distinct sums, may be joined 
 with him as defendants in a creditor's bill, {a) 
 
 A debtor to the judgment debtor may be made a party de- 
 fendant to a creditor's bill, for the purpose of compelling him 
 to pay to the complainant the debt which he owes to the judg- 
 ment debtor. But he is not a necessary ptirty; and he is, in 
 general, entitled to his costs out of the fund recovered. If 
 there is no fund, the complainant is frequently compelled to 
 pay them himself. (5) 
 
 Creditors and legatees are exceptions to the general rule re- 
 quiring all persons interested in the subject of the bill to be 
 made parties, (c) 
 
 SECTION IV. 
 
 PEIOEITY AND LIEN OF BILLS. 
 
 The filing of a creditor's bill, or at least the service of pro- 
 cess,, gives the complainant a lien upon the propertj' of the 
 judgment debtor, by placing it under the control of the court; 
 which will not suffer it to be withdrawn, so as to defeat the 
 object of the bill by any subsequent act or title. A.nd land 
 of the debtor, sold after this lien attaches, will be taken by the 
 buyer as a Us pendens purchaser, subject to the lieri of the 
 complainant, (d) 
 
 The judgment creditor who first institutes a suit obtains a 
 priority over the creditors in relation to the property and 
 effects of the defendant, which can not be reached by execu- 
 tion at law. («) This lien is not obtained by the return of an 
 
 (a) Boyd v. Hoyt, 5 Paige, Ch. 65, 77. 
 
 (6) Stafford v. Mott, 3 Paige, Ch. 100; 2 Barb. Ch. Pr. 156. 
 
 (c) Brown v. Eicketts, 3 Johns. Ch. R. 553. 
 
 [d) Newdigate v. Lee, 9 Dana, 17, 20; 2 Barb. Ch. Pr. 157, 158; Boherts 
 V. Albany d; West Stockbridffe B. B. Co., 25 Barb. 662 ; First Nat. Bank 
 V. Gage, 93 111. 172; Storm v. Waddell, 2 Sandf. Ch. R. 494; Brwm v. 
 Nichols, 42 N. Y. 26. 
 
 (c) McCalmon' v. Lawrence, 1 Blatchf. C. C. R. 232; Lyon v. Bobins, 46 
 111.276; Corning v. White, 2 Paige, Ch. R. 567; Albany City Bank, t. 
 Schermerhorn, 1 Clarke, 297; Boyntan \. Bawson, Id. 584; Garden y. 
 29 
 
450 CREDITOR'S BILL. 
 
 Priority and Tjien of Bills. 
 
 execution unsatisfied, but by the commencement of a suit of 
 this nature founded upon such return, (a) 
 
 The mere filin_^ of a bill without issuing process thereon, 
 does not create a lien. To obtain a preference as to the equi- 
 table assets of the debtor, the creditor must follow up the fil- 
 ing of his bill by tlie service of his process, with all due dili- 
 gence. Therefore, where there were three separate bills filed 
 against a judgment debtor, at different times, and process was 
 first served in the third suit, upon a reference as to priority 
 of claim, it was hold that the complainant in the third suit 
 was entitled to be first paid ont of the fund in the hands of 
 the receiver. (5) 
 
 Several bills filed by creditors of the same estate, to 
 subject it to their debts may be consolidated, (c) 
 
 The filing of a creditor's bill operates as an attachment of 
 property which can not be levied on at law. It gives to the 
 vigilant creditor aright to priority in payment; and the cred- 
 itor who files the second bill will have the second lien, {d) 
 The lien is confined, however, to the choses in action and equi- 
 table assets of the judgment debtor, and does not attach npon 
 his personal property tangible by execution, (e) 
 
 An assignment of his property by the defendant, after the 
 filing of a creditor's bill, will not divest the lien of the judg- 
 ment creditor, {f) It will only convey the properfy to the as- 
 signee subject to the lien which has thus attached, (gf) 
 
 Lowell, 21 Maine, 251; Lucas v. Atwood, 2 Stewart, 378; Cole v. Marple, 
 98 111. 68; Eappleyey. International Bank, 93 111. 896; Smith v. Und, 29 
 111. 30. 
 
 (a) Edmeston v. Lyde, 1 Paige, Ch. 637; Wakeman v. Graver, 4 Paige, 
 Ch. 23 
 
 (6) Boi/nton v. Rawson, 1 Clarke, 584; Burrell v. Leslie, 6 Paige Ch. R. 
 445 : see Commack v. Johnson, 1 Green. Ch. 163. 
 
 (c) Campbell's Case, 2 Bland, 209; see Claiborne v. Gross, 7 Leigh. 331. 
 
 {d) Corning v. White, 2 Paige, Ch. 568; Eoppleye v. International 
 Bank, 93 111. 396. 
 
 (e) Albany City Bank v. Schermerhorn, 1 Clarke, 297 ; Edmeston v. 
 Lijde, 1 Paige, Ch. 637; Eager v. Price, 2 Paige, Ch.333. 
 
 (/) Edmeston -v. Lyde, 1 Paige, Ch. 637. 
 
 {g) Corning v. White, 2 Paige, Ch. 567. 
 
CREDITOR'S BILL. 451 
 
 Frame of Bill. 
 
 A vendee, whose purchase is fraudulent as to creditors, 
 having paid off a prior encumbrance, and the sale liaving been 
 subsequently set aside, on a creditor's bill, can not recover 
 back the money paid to the incumbrancer; the payment not 
 having been made under a mistake of fact, but a mistake of 
 law. (a) 
 
 SECTION V. 
 
 FBAME OF BILL. 
 
 A creditor's bill should state the rendition of the judgment, 
 the court and term in which it was recovered, the nature of 
 the action, the names of the partibs, and the amount of dam- 
 ages and costs, or debt and damages. 
 
 The bill must also aver the issuing of an execution upon 
 the judgment; (5) the amount for which it was issued, the di- 
 rection to tlie sheriff and its delivery to him. The bill must 
 show that an execution was issued to the county in which tlie 
 defendant resided at the time it was issued; or state some suf- 
 ficient legal excuse for issuing the execution to a different 
 county, (e) 
 
 The bill must also show the time when the execution was 
 returnable, and the actual return of the sheriff thereon ;((?) 
 and that it was returned unsatisfied in whole or in part, {e) 
 
 The bill must charge that the defendant has some property 
 or equitable interests or things in action which ought to be 
 applied to tlie complainant's judgment. 
 
 If a creditor's bill is filed by an assignee of the judgment, 
 he should, of course, state the assignment to him. But he 
 need not state the consideration of the assignment. (/") 
 
 ( (a) MilwauHe <# Minn. S. S.Co. v. Soutter, 13 Wallace, 517; see Ex parte 
 Dunham, 29 Leg. Int. 389. 
 
 (6) ( assidy-v. Meacham, 3 Paige, Ch. 311. 
 
 (c) Reed v. Wheaton, 7 Paige, Ch. 663; n^ilbur v. Collier, 1 Clarke, 315. 
 
 Id) Cassidy v. Meacham, 3 Paige, Ch. 311; see Mitchell v. Byrns, 67 111. 
 522. 
 
 (c) Pardee v. Be Gala, 7 Paige, Ch. 132; see Ishmeal v. Parker, 13 111. 
 324; Newman Y. WilUtts, 52 111. 98. 
 
 (/) GleasoHY. Gage, 7 Paige, Ch. 121. 
 
452 CREDITOR'S BILL. 
 
 Frame^Bill in Aid of Execution — What Creditor's Bill should State. 
 
 A bill against one of several debtors in a joint jiid^iaent 
 for satisfaction thereof, mnst negative all right of set-off in 
 anyiof the judgment debtors; («) and innstshow that there, is 
 no collusion with the defendants, or either of thein. {b) 
 
 A judgmen^t creditor may demand from his debtor a dis- 
 closure of his assets, and of the names of his creditors in 
 general terms, (c) 
 
 Bill in aid of execution. — When a creditor seeks to set 
 aside a fraudulent conveyance, he must first secure his lieu 
 by a levy of his execution, (rf) and, filing his bill proceed to 
 decree. He must allege that the conveyance was made for 
 the express purpose of delaying and defrauding his credit- 
 ors, (e) The allegations of the bill must all be clear and 
 unequivocal. 
 
 What creditor's hill should state. — Where a creditor's bill 
 is filed to obtain satisfaction out of the equitable interests, 
 things in action, or other property of a debtor, after the re- 
 turn of an execution unsatisfied, the creditor shall state in his 
 bill, either positively or according to his belief, the true sum 
 actually and equitably due on such judgment or decree, over 
 and above all jnst claims of the defendant, by way of offset 
 or otherwise. He shall. also state tiiat he knows or has reason 
 to believe the defendant has equitable interests, things in ac- 
 tion, or other property, exceeding one luindred dollars in val- 
 ue, exclusive of all prior claims thereon, which the complain- 
 ant has been unable to discover and reach by execution on 
 such jndgment or decree. The bill shall likewi.se contain an 
 allegation that tiiesameis not exhibited b}' collusion with 
 the defendant, or for the purpose of protecting the property 
 
 (a) Van CUefy. Sic/^f.-!, 2 Bdw. Ch. 392. 
 (6) Cormnt v. Sparls, 3 Edw. Ch. 104. 
 
 (c) Miers y. ZanesvUle d- Maysville Turnpike Co. 11 Ohio, 273; Cad- 
 vallader v. Granville Alexandrian Societi/, Id. 292. 
 
 (d) McKibber v. Barton, 1 Mich. 212; Foso v. Willis, 1 Miph. 822; Eslom 
 V. Mitchell, 26 Mich. 500; Glynn v. Phetteplace, 26 Mieh. 383; Miliary. 
 Babcock, 29 Mich. 626; Weis v. Tiernan, 91 111. 27. 
 
 (() Bobinson y. Boyd, 17 Mich. 128. 
 
CREDITOR'S BILL. 453 
 
 Form of Bill — Prayer — Verification — Amendments of Bill, etc. 
 
 or effects of the debtor against the claims of other creditors; 
 but for the sole purpose of compelling payment and satisfac- 
 tion of the complainant's own debt, (a) 
 
 Prayer. — The bill contains the usual prayer for process, and 
 that the defendant may answer and discover; and in addition, 
 a prayer for an injunction and a receiver. 
 
 Verification. — Every sncli creditor's bill shall be verified 
 by the oath of the complainant, or in case of his absence 
 from the State, or other snfBcient cause shown, by the oath of 
 his agent or attorney. (S) When a bill is verified, under this 
 rule, by the complainant's agent, wlio is not his solicitor, the 
 jurat should state the person verityin:? to be the agent of the 
 complainant; but where it is verified by the oath of the com- 
 plainant's solicitor, the court will take notice of that fact 
 from the record and proceedings of the cause, (c) If an in- 
 junction or receiver is applied for, the bill must be sworn to 
 positively. (<^) 
 
 Amendments of hill. — Creditors' bills may be amended of 
 course, in the same manner as bills not sworn to, (e) if the 
 amendments are merely in addition to, and not inconsistent 
 with, what is contained in the original bill, {f) 
 
 Sweating to amendvients. — All such amendments must be 
 verified by oath, in the same manner as the bill is required to 
 be verified, (g) 
 
 Proceedings ex parte, defendant in default. — In case the 
 defendant has been duly served with process, and he is in de- 
 fault for want of an answer, the complainant shall be enti- 
 
 (a) Chanosry Rale 102. 
 (h) Chancery Rule 103. 
 
 (c) Eergk v. Poupard, Walk. Ch. 5. 
 
 (d) 2 Barb. Cli. Pr. 165; Sizer v. Miller, 9 Paige, Ch. R. 605. 
 (c) Ante, page 157. 
 
 (/) Chancery Rule, 103. 
 (fl-jlbid. 
 
454 CREDITOR'S BILL. 
 
 Form of Bill — Consent to take Bill Confessed. 
 
 tied to the like orders and proceedings in regard to receivers, 
 as hereafter explained, as he would be in case he should 
 take the case as confessed by the defendant, (c) The court 
 has power to appoint receivers in vacation as well as during 
 the session of the court, {d) The application may be made 
 to the circuit judge at chambers, {e) 
 
 Cofisent to take bill confessed. — Tlie debtor against whom 
 a creditor's bill is filed, shall not be subject to the expense of 
 putting in an answer thereto in the usual manner, if he shall 
 cause his appearance to be entered within twenty days after 
 the return day of the subpcena, and shall, within the time al- 
 lowed for an answer, deliver to the complainant or his solici- 
 tor a written consent that an order may be entered taking the 
 bill as confessed, and for the appointment of a receiver, and 
 for a reference to take the examination of the defendant, (y) 
 
 No. 175. Consent that hill be taken as confessed. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 AB, 
 
 Complainant, 
 vs. 
 CD, 
 
 Defendant. 
 
 I, C D, the defendant in the above entitled cause. Having 
 caused my appearance in said cause to be entered, do hereby 
 consent, that an order may be entered in said cause, taking 
 the bill filed therein as confessed, and for the appointment of 
 a receiver in said suit, and for a reference of said cause to a 
 commissioner, to take my examination, as such commissioner 
 shall direct, in relation to any matter which I might have 
 been legally required to disclose if I had answered the bill 
 of complaint in the usual manner. 
 Dated, etc. 
 
 CD, 
 Defendant. 
 
 (c) Chancery Rule 104. 
 {d) Conip. L. 1871, § 5070. 
 (e) Comp. L. 1871, § 5071. 
 (/) Chancery Rule 105. 
 
CREDITOR'S BILL. 455 
 
 Form of Bill — Order on Cojisent — Costs of Examination, etc. 
 
 Order on consent to take hill confessed. — Upon tlie com- 
 plainant presenting the above conseat to the court, he may- 
 have a special order founded thereon, directing the bill to be 
 taken as confessed against the debtor, and referring it to such 
 commissioner as the court may designate in such order, to 
 appoint a receiver with the usual powers, and to take from 
 him the requisite security. The order siiall also direct the 
 defendant to assign, transfer and deliver over to the receiver 
 on oath, under the direction of the commissioner, all his prop- 
 erty, equitable interests, and in action and effects; and that 
 he shall appear before the commissioner from time to time 
 and produce such books and papers, and submit to such ex- 
 amination, as the commissioner shall direct, in relation to any 
 matter which he might have been legally required to disclose, 
 if he had answered the bill in the usual manner, {g) 
 
 Costs of examination. — The expense of taking down such 
 examination by the commissioner shall be paid by the com- 
 plainant in the first instance, and may be taxed and allowed 
 to the latter as a part of his necessary costs in the suit, {g) 
 
 Other witnesses. — The complainant shall also be at liberty 
 to examine witnesses before the commissioner, as to the prop- 
 erty of the defendant, or as to any other matter charged in the 
 bill and not admitted by the defendant on such examina- 
 tion. (A) 
 
 When rule 105 to he served. — The complainant shall cause 
 a written or printed copy of this rule (105) to be served on the 
 defendant at the time of the service of the subpoena, with a 
 notice to the defendant that an entry of his appearance and 
 an answer on oath is required; or such defendant shall not be 
 answerable to the complainant for thecostsof the proceedino's 
 to compel an appearance and answer. (*') 
 
 {g) Chancery Rule 105; Howard v. Palmer, Walk. Ch. 391. 
 {g) Chancery Rule 105. 
 {h) Chancery Rule 105. 
 (i) Chancery Rule 105. 
 
456 CREDITOR'S BILU 
 
 Receivers — ^Their Powers — Receivers for Several Suits. 
 
 SECTION VI. 
 
 EECEIVEES IN OEBDITOR S SUITS. 
 
 Their powers. — Everj recei\rer of the property and effects 
 of the debtor, appointed in a suit upon a creditor's bill, shall, 
 unless restricted by the special order of the court or cii'cuit 
 court commissioner, have general power and authority to sue 
 for and collect all the debts, demands and rents belonging to 
 such debtor, and to compromise and settle snch as are unsafe 
 and of a doubtful character. He may also sue in the name of 
 the debtor, where it is necessary or proper for him to do so, 
 and he may apply for and obtain an order of course, that the 
 tenants of any real estate belonging to the debtor, or of which 
 he is entitled to the rents and profits, attorn to such receiver 
 and pay their rents to him. He shall also be permitted to 
 make leases from time to time as may be necessary, for terms 
 not exceeding one year. And it shall be his duty, without 
 unreasonable delay, to convert all the personal estate and ef- 
 fects into money; but he shall not sell any real estate of the 
 debtor without the special order of the court. He is not to 
 be allowed for the costs of any suit brought by him against 
 an insolvent from whom he is unable to collect his costs, un- 
 less such suit is brought by order of the court, or by the con- 
 sent of all persons interested in the funds in-his hands. But 
 he may sell such desperate debts and all other doubtful claims 
 to personal property at public auction, giving at least ten days, 
 notice of the time and place of such sale, (^j) 
 
 Receivers for several suits. — Where several bills are filed 
 by different creditors against the same debtor, no more than 
 one receiver of his property and effects shall be appointed, 
 unless the first appointment has been obtained by fraud or 
 cijUusion, or unless the receiver is an improper person to 
 execute the trust, {a} 
 
 (j) Chancery Rule 106. 
 
 (a) Chancery Rule 107. f 
 
CREDITOR'S BILL. 457 
 
 Form of Bill — Security by Receiver — How to Pay Over Money, etc. 
 
 Secwrity l)y receiver. — The receiver shall g;ive security suf- 
 ficient to cover the whole property and effects of the debtor, 
 which may come iu his hands bj virtue of his office ; and 
 he shall hold the property and effects of the debtor for 
 the benefit of all creditors who have commenced, or shall 
 commence, similar suits during the continuance of his trust, 
 to be disposed of according to their legal or equitable prior- 
 ities, {a) 
 
 How to pay over money. — The receiver shall not pay over 
 the funds in his hands to the parties, or to any other person, 
 without being especially authorized to do so by an order or 
 decree of the court ; nor shall he be discharged from his trust 
 without a special order, to be obtained upon a written consent 
 of all the parties interested in the property in his hands, or 
 upou notice of the application, (fi) 
 
 Receivers for subsequent suits. — When another suit is com- 
 menced after the appointment of a receiver, the same person 
 may be appointed receiver of such subsequent suit, and give 
 such further security as the court directs, (c) 
 
 Receiver's accounts. — The receiver must keep a separate 
 account of any property or effects of the debtor, which may 
 have been acquired since the commencement of the first suit, 
 or which may be assigned to such receiver under the appoint- 
 ment in the last cause, (d) 
 
 Effect of injunctions. — No injunction issued upon a credit- 
 or's bill shall be construed to prevent the debtor from receiving 
 and applying the proceeds of his subsequent earnings to the 
 support of himself or of his family, or to defray the expenses of 
 the suit, or to prevent him from complying with any order 
 of the court, made in any other cause, to assign and deliver 
 
 (a) Chancery Rule 107. 
 (6) Chancery Rule 107. 
 
 (c) Chancery Rule 108. 
 
 [d) Chancery Rule, 108. 
 
458 CREDITOR'S BILL. 
 
 Form of BUI— Creditor's Bill. 
 
 his property and effects to a receiver, or to restrain liim from 
 making the necessary assignment to obtain his discharge 
 under the insolvent laws, unless an express provision to that 
 effect is contained in the injunction, {a) 
 
 No. 176. Creditor's Bill. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Your orators, A B, E F, and G H, of, etc., partners under 
 the name and style of B F & Co., respectfully represent unto 
 
 this honorable court, that at the term, 18 — , of the 
 
 court of said county, and on, etc., being one of the regular 
 days of said term, your orators recovered a judgment against 
 one C D, one of the defendants hereinafter named, for the 
 
 sum of dollars damages and the costs of suit, whereof 
 
 the said C D stands convicted; as by the record of the said 
 judgment in the oiBce of the clerk of said court, reference 
 being thereto had, will more fully appear. 
 
 Your orators further represent, that the said judgment re- 
 maining in full force and effect, and the damages aforesaid 
 unsatistied, your orators, on, etc., for the purpose of obtaining 
 satisfaction of the said judgment, sued and prosecuted out of 
 the said court, a writ of fieri facias., directed to the sheriff 
 of the county of , that being the county in which the de- 
 fendant, C D, resided at the time of the issuing of said writ; 
 by which said writ the said sheriff was commanded, that of 
 the goods, chattels, lands and tenements of the defendant^ C D, 
 
 in his county, he should cause to be made the said sum of 
 
 dollars, which your orators in the said court recovered 
 
 against the said C D, and that he should have the money at 
 
 the clerk's office of said court, at , in said county, in 
 
 ninety days from the date thereof, to satisty the judgment so 
 recovered by your orators as aforesaid, and that he should 
 have then and there that writ. 
 
 And your orators further represent, that the said writ of 
 fieri facias, before the delivery thereof, was dulj' indorsed, 
 and was afterward, on, etc., delivered to the said sheriff, to be 
 by him executed in due form of law. 
 
 And your orators further represent, that the said sheriff, on, 
 etc., made a return of said writ with an indorsement thereon, 
 
 ( a ) Chancery Rule, 1C9. 
 
CREDITOR'S BILL. 459 
 
 Form of Bll^Oreditor's Bill. 
 
 that, etc. {Here insert the return of the sheriff); as by the 
 said writ of fieri facias, and the slieritf's return as aforesaid, 
 now on file in the office of the clerk of the said court, will more 
 fully appear. 
 
 And your orators further represent, that the said judgment 
 still remains in full force and effect, not reversed, satii^iied or 
 otherwise vacated; that tliere is now actually and equitably 
 due your orators upon the same, the sum of dollars, to- 
 gether with interest thereon from the date of the rendition 
 thereof, over and above all claims of the defendant C D, by 
 way of set-off, or otherwise. 
 
 And your orators further represent, that at the time of the 
 recovery of the said judgment against the defendant C D, he, 
 the said C D, was, and for several years previous thereto had 
 
 been, engaged in the mercantile business at the of ; 
 
 and your orators are informed and believe that in the course of 
 the said mercantile business of the said C D, divers persons be- 
 came indebted to him to a large amount, and that the defend- 
 ant D has, at the time of tiling this your orators' bill of 
 complaint, debts due to liim, and for which he holds divers se- 
 curities and evidences, to a large amount, and has divers goods, 
 wares and merchandise, or other articles of personal prop- 
 erty which belong to him, or in which he is in some way or 
 manner beneficially interested, and that he has equitable 
 interest and things in action of some nature or kind, which 
 might and ought to be applied to the payment of your orators' 
 said judgment against him, the defendant C D. 
 
 And your oratoi's further represent, that tlie defendant 
 D is the owner of, or in some way or manner beneficially inter- 
 ested in, some real estate, in this or some other State or Terri- 
 tory, or some chattels real or of some name or kind, or some 
 contractor agreement relating to real estate, or the rents, is- 
 sues, and profits of some real estate; and also that the defend- 
 ant CD is the owner of, or in some way or manner beneficial- 
 ly interested in the stock of some company, incorporated or 
 unincorporated, or in the profits of some company or copart- 
 nership; and'also that he has in liis possession, at the time of 
 the filing of this your orators' bill of complaint, some money 
 in coin, or bank bills; or that he has money deposited in some 
 bank or elsewhere, to his credit; or that he has money or se- 
 curities for the payment of money, held by some other person 
 in trust or otherwise for his benefit. 
 
 And if the defendant C D has made any sale, transfer or 
 assignment of his property or effects, or any part thereof, your 
 orators expressly charge that they believe such sale, transfer or 
 
CREDITOR'S BILL. 
 
 Form of Bill— Creditor's Bill, 
 
 assignment is merely colorable, and made with a view of protect- 
 ing the property or effects of the defendant C D so assigned, 
 and placing the same beyond the reach of your orators' said 
 judgment, and enabling the defendant D to control and en- 
 joy the same, and the avails thereof; and that it would soap- 
 pear, if the defendant D would state and set Ibrth when 
 and to whom such sale, transfer or assignment was made, and 
 what was the amount in value of the property or effects so 
 assigned, sold or transferred, and what were the terms and con- 
 ditions upon which such sale, transferor assigiiirieut was made, 
 and what disposition has been made of the property or effects 
 so sold, transferred or assigned, and in whose possession tiie 
 same now is, or what has been done with the avails tiiereof 
 And your orators claim a full and complete discovery of all 
 such property, effects and things in action, belonging to the 
 delendant C D, and of all trusts whereby any pi-operty, debts 
 or other effects are held for the use or beneiit of the defendant 
 C D, and of every sale, transfer or assignment which the de- 
 fendant C D has made of his property, debts or other effects, 
 and of the person or persons to whom such assignment, sale or 
 ti'ansfer has been made, the amount and value of the property, 
 debts or other effects so assigned, sold or transferred, and the 
 trusts or other conditions upon which such sale, assignment 
 or transfer was ma le, and all the facts and circumstances re- 
 lating thereto; and particularly what is the situation of the 
 property, debts or other effects assigned or transferred, at the 
 time of filing this your orators' bill of complaint. 
 
 And your orators further represent, that tliey have reason to 
 believe, and do believe, and- so charge the fact to be, that the 
 defendant C D has property, debts, and other equitable inter- 
 ests, things in action or effects, of the value of more than 
 
 dollars, exclusive of all prior just claims thereon, and which 
 your orators have been unable to reach by execution on said 
 judgment against the defendant C D; and that this your ora- 
 tors' bill of complaint is not exhibited by collusion with the 
 defendant C D, or with any other person, or for the purpose 
 of protecting the property or effects of the defendant C D 
 against the claim of other creditors, but for the sole and only 
 purpose of compelling payment and satisfaction of the judg- 
 ment so as aforesaid recovered by your orators against the de- 
 fendant D, 
 
 And your orators further represent, that they ai'e informed 
 and believe, and so state the fact to be, that L M, In 0, P Q, 
 and R S, of, etc., other parties defendants, hereinafter named, 
 or some one or more of them, have in their possession or con- 
 
CREDITOR'S BILL. 461 
 
 Foi-m of Bill— Creditor's Bill. 
 
 trol, divers goods, -.wares and- merchandise, and otlier articles 
 of personal property, which belong to the defendant C D, or 
 in which the ,det'eqdant„C D is in some way or manner bene- 
 ficially interested; or that they or some of them have in their 
 possession or under their control, some money, stock, bonds, 
 promissory notes, bills of exchange, judgments, mortgages, 
 deeds of trust, books of account, debts, evidences of in- 
 debtedness or other choses in action, which they, or some of 
 them hold in trust or otherwise for the use and benefit of the 
 said C D, or in which he is in some way or manner benefi- 
 cially or otherwise interested ; or that they or some of them 
 hold in trust or otherwise, for the defendant C D, some real 
 estate inthis or some other State or Territory; or some chattels 
 real of some kind ; or some contract or agreement relating to 
 real estate ; or , the rents, i^su^s and prpfitSjof some real, estate ;• 
 or some stock of some company, incorporated or unincorpo- 
 rated; in trust for, or in which the defendant C D is in some 
 way or manner beneficially or otherwise interested; and that 
 it would so appear, if the defendants last named would, each 
 for himself, state and set forth everything according to the 
 best of their knowledge, information and belief, relating to 
 any and all such property, real and personal, efl^'ects, choses 
 in action, etc., and how, and upon what terms and con- 
 ditions, and for what purpose, the same is so held by them, 
 and all the facts and circumstances relating thereto. And 
 your orators claim a full and complete discovery of all 
 such property, effects and things in action, held or ciantroUed 
 by the said last named defendants, or by any or either of them, 
 in trust or otherwise, for the bentefif'of the defendant C D. 
 And that each of the said last named defendants shall set 
 forth and state the nature and description of any property, 
 effects, and choses in action, the amount, kind, value and par- 
 ticulars thereof, and the precise terms and conditions upon 
 which the same are so held and controlled by them, or any or 
 either or them. 
 
 {Here insert such other charges as the nature of the case may 
 seem to require,^ and if any other persons are supposed to home 
 property, etc., i/ti their jjossession or under their control in 
 which the defendant is interested, charge the facts, and make 
 them, parties.) 
 
 And your orators well hoped, that the defendant C D 
 woiild have paid to your orators the amount due to them on 
 their said judgment, or would have applied for that purpose 
 any property, money, debts, or other, equitable interests or 
 things inaction belonging, to him, or in which he is in. any 
 
462 CREDITOR'S BILL. 
 
 Form of Bill— Creditor's Bill. 
 
 way interested, as in equity and good- conscience he ought to 
 have done. ' 
 
 But now so it is, the defendant combining and confederatinji; 
 with divers other persons, to your orators unknown, but whose 
 names, when discovered, they pray may be inserted herein, 
 with proper and apt words to charge tliem, and contriving how 
 to injure and defraud your orators in the premises, neglects 
 and refuses to pay the amount so due to your orators; on their 
 said judgment, or to apply for that purpose any property, 
 money, debts or other equitable interests or things in action, 
 belonging to the defendant C D; and for reason whereof the 
 defendant C D sets up a variety' of unfounded pretenses. All 
 which actings, doings, neglects and (pretenses are contrary to 
 equity and good conscience, and tend to the manifest wrong 
 and injury of your orators in the premises. 
 
 Forasmuch, therefore, as your orators are witliout remedy in 
 the premises, except in a court of equity; and to the end that 
 the said C U, L M, N 0, P Q and K S, who are made parties 
 defendant to this bill, may be required npon their several and 
 respective corporal oaths, and according to the best and ut- 
 most of their several and respective knowledge, remembrance, 
 information and belief, full, true, direct and perfect answer 
 make, to all and singular, the matters and things hereinbe- 
 fore stated and charged, as fully and particularly as if the 
 same were here again repeated and they severally thereto dis- 
 tinctly interrogated paragraph by paragraph, and especially 
 that they may each set forth and discover the nature and sit- 
 uation, amount and value of all the property, interests and 
 effects of the defendant D, including all things in action, 
 of whatever nature or kind, with all the particulars relating 
 thereto, and that they may several!}' and respectively answer 
 and state whether at the time of filing this your orator's bill 
 of complaint, the defendant C D has not debts due to him to 
 a considerable amount; and if so, that they state particularly 
 the amount of such debts respectively, and from whom tlie 
 same are due, and what securities are held therefor, and 'also 
 which and what amount of said debts are good and collectable, 
 and which and what amount bad and doubtful; and whether 
 at the time of iiling this, your orators' bill of complaint, the 
 defendant C D had not or has not now some property, real 
 or personal, in law or equity, belonging to him, or held in 
 trust for him, or in which he had some beneficial interest of 
 some kind or description, and,, if so, that they may severally 
 state and set forth a full, triie and particular account thereof, and 
 the nature and value of his interest therein; and tliat they may 
 
CREDITOR'S BILL. 463 
 
 Form of Bill— Creditor's Bill. 
 
 also severally state whether the defendant C D has not money of 
 some kind in -his possession, or under his control, or deposit- 
 ed to his credit, or for his nse, or in some way or manner held 
 for his benefit, and if so, that the defendants may respectively 
 state and set forth particularly the amount thereof, and how 
 and by whom the same is held; and that tlie defendants may 
 severally state whether the defendant C D has any other 
 equitable interests or things in action, or other means belong- 
 ing to. him, or in which he is any way interested, whereby he 
 could pay any part of the amonnt so, as aforesaid, due to 
 yonr orators upon their said judgment against the defendant 
 CD. 
 
 And if tlie defendant C D has made any sale, assignment 
 or transfer of his property and effects, or any part thereof, 
 that then the defendants may severally and respectively state 
 and set forth generally, but not in items, what property or 
 effects have laeen so sold, assigned or transferred, and the 
 value thereof, and particularly when, and to whom, and for 
 what purpose, and upon what terms and conditions, such 
 sale, assignment and transfer was made, and what has been 
 done under such sale, assignment or transfer, and what has 
 been done with the property or effects so sold, assigned or 
 transferred, and, the avails thereof 
 
 And that the defendants may also severally answer make 
 to such of the several interrogatories hereinafter numbered 
 and set forth, as by the note hereunder written, they are re- 
 spectfully required to answer ; that is to say : 
 
 1. "Whether, etc., etc. 
 
 2. Whether, etc. 
 
 3. Whether at the time of the filing of this biirof complaint 
 you had, or have now, in your possession, custody or charge, 
 any lands, tenements, goods, chattels, moneys, bonds, promis- 
 sory notes, bills of exchange, judgments, mortgages, deeds of 
 trust, stocks, choses in action, credits or effects of any kind 
 or nature belonging to the defendant C D, or in which he is in 
 any manner directly or indirectly, beneficially or otherwise, 
 interested? If yea, set forth fully and particularly the kind, 
 number, quantity and value thereof respectively ; and state 
 fully the terms and conditions upon which the same are so 
 held. 
 
 4. Were you at or after the time of the filing of this bill of 
 complaint, or are you now, in any manner indebted to the 
 said C D? If yea, set forth fully and particularly for what, 
 how, and to what amount you were or are so indebted to him. 
 
 5. Whether, etc. 
 
464 CREDITOR'S BILL. 
 
 Form of Bill— Greditor's Bill. 
 
 And that the defendant C D may be decreed to paj' 
 yonr orators the amount so as aforesaid dne to tliem for 
 principal and interest on their said judgment, together with 
 your orators' costs and charges in this belialf sustained; 
 and may be decreed to apply for that purpose any money 
 or property real or personal, in law or equity, debts, 
 choses in action or equitable interests belonging to liini, 
 or held in trust for him, or in wliich he is in any way or 
 manner beneficially interested; and that the defendant CD 
 may be enjoined and restrained from selling, assigning, 
 transferring, delivering, negotiating, discliarging, receiv- 
 ing, collecting, incumbering, or in any way or manner dis- 
 posing of, or intermeddling with, any debts or demands due 
 to him, or any bills, bonds, notes, drafts, checks, book ac- 
 counts, mortgages, judgments, or other debts due to him, 
 whether in his possession or held by some other person in 
 trust for him, or to his use and benefit; and also from assign- 
 ing, transferring, or in any manner incumbering or disposing 
 of, or intermeddling with, any money in coin, bank bills, 
 drafts -or checks belonging to him, whether in his possession, 
 or held by any other person in trust for his use or benefit; 
 or any stock, or interest in any private or incorporated com- 
 pany, or any property', real or personal, things in action or 
 chattels real, held by him, or by any other person for him, or 
 in which he has any interest whatever, except where such 
 trust has been created by, or the fund so held in trust Ims 
 proceeded from some person other than the defendant 
 D. And that the defendant C D may also be in like man- 
 ner prohibited from making any assignment of his property, 
 and from confessing any judgment for the purpose of giv- 
 ing preference to any other creditor over your orators, and 
 from doing any other act to enable other creditors to obtain 
 liis property. And that a receiver may be appointed, ac- 
 cording to the course of piaotice of this court, and with tlie 
 usual powers of receivers in like cases, of all the property, 
 equitable interest, things in action, and effects of the defend- 
 ant C D. And that your orators may have such other and 
 further relief in the premises as equity may require and to 
 this honorable court shall seem meet. 
 
 {Add jyr'ayer for injv/nction according to prayer of hill; 
 also pi'ayer for ^ooess.) 
 
CREDITOR'S BILL. 465 
 
 Form of Bill — Bill t Remove Fraudulent Conveyance. 
 
 State of Michigan, 
 
 County of 
 
 ss. 
 
 A B, on oath states, that he is one of the complainants in 
 the foregoing bill named, and has heard the same read, and 
 knows the coatents thereof. Tliat the niatters and things in 
 the said bill contained is trne of his own knowledge, except 
 as to those matters which are therein stated to be on his in- 
 formation and belief, and as to those matters he believes it to 
 be true. 
 
 Note. — The defendants are each required to answer the in- 
 terrogatories in the foregoing bill of complaint, numbered re- 
 spectively 1, 2, 3, 4, 5, etc. The defendant C D is required 
 to answer all of .said interrogatories except the 3d and ith. 
 
 Sol. for complainants. 
 
 No. 177. Bill in aid of an execution to remove afraiidulent 
 conveyance. 
 
 State of Michigan. 
 
 The Circuit Court for the ('ounty of . In Chancery. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Your orator, A B, of, etc., respectfully represents unto 
 this honorable court, that on, etc., your oratoi- recovei-ed a 
 
 judgment in the court, of the county of , in this 
 
 State, against one C D, one of the defendants hereinafter 
 
 named, for the sum of dollars, damages, and the costs 
 
 of that suit, whereof the said C D stands convicted, as by the 
 record of the said judgment in the office of the clerk of 
 the said court, reference thereto being had, will more fully 
 appear. 
 
 Your orator further represents that, previous to the time of 
 the rendition of the said judgment, the defendant C D was 
 the owner in fee simple of the following described real estate, 
 to wit {Here insert description) : 
 
 Your orator further represents, that on, etc., the said judg- 
 ment remaining in full force and effect, and the damages and 
 costs aforesaid unsatisfied, your orator, for tiie purpose of 
 obtaining satisfaction of the same, caused a writ oi fieri facias 
 to be issued and delivered to the sheriff of tiie said county of 
 
 , where the defendant C D then resided, and still resides, 
 
 and the said real estate is situated, in the usual form, com- 
 manding the said sheriff that of the goods, chattels, lands and 
 tenements of the defendant C D, in his county, he should 
 30 
 
466 CREDITOR'S BILL. 
 
 Form of Bill — Bill to Remove Fraudulent Conveyance. 
 
 cause to be made the said sum of dollars, which your 
 
 orator in the said court recovered against the said C D, 
 
 and he should Imve the money at the clerk's olKce of said 
 
 court, at , in said county, in , ninety days from the 
 
 date tliereof, to satisfy ti)e judgment so recovered by your 
 orator as aforesaid, and that he should have then and there 
 tliat writ; which said writ of Jieri facias was d\i]j indorsed 
 and on the same daiy, delivered to the said sheriff, to be by 
 him executed in due form of law. 
 
 And your orator furtlier represents, that the said execution 
 is still in the hands of the said sheriff, not returned, and is 
 unsatisfied in whole or in part. 
 
 Your orator further represent?, that prior to the rendition 
 of the said judgment, butafter the indebtedness upon which 
 the same was rendered had accrued, to wit, on, etc., the de- 
 fendant D, made a pretended, conveyance in fee of the said 
 described real estate to one G H, another defendant herein- 
 after named, for a pretended Consideration of dol- 
 lars. 
 
 And your orator further represents, that the said convey- 
 ance was not real, but was a mere sham, and made with the 
 intention of defrauding your orator, and the other creditors 
 of the said C D, out of their just demands; that no consider- 
 ation was paid by the said G H to tlie said C D for the said 
 conveyance; and that the said premises are now held by the 
 said G H in trust for the said C D, and for his use and ben- 
 efit, and for the purpose of preventing a levy and sale of the 
 same under and by virtue of said execution. ' 
 
 Your orator further represents, that tlie said G H is a mafi 
 of no pecuniary responsibility, and is possessed of little or no 
 property other than that bo fraudulently convej'ed to iiim as 
 aforesaid, and is in embarrassed cii'cumstances, and involved 
 and largely in debt. 
 
 Yonr orator further represents, that the said C D has no 
 personal or real estate liable to levy and sale, except the prem- 
 ises aforesaid, on which the said sheriff could make a levy and 
 realize the amount of the said judgment and costs; and that, 
 although the said sheriff has frequently demanded of the said 
 C D to pay the amount due upon the said judgment, or that 
 he turn out property upon which he could make a levy, the 
 said C D has refused to pay the same, or turn out property, 
 and fraudulently insists that he has neither money nor prop- 
 erty to satisfy the same. 
 
 Your orator further represents, that the said judgment still 
 remains in full force and effect, not reversed, satisfied or 
 
CREDITOR'S BILL. 467 
 
 Form of BUI — Bill to Remove Fraudulent Conveyance. 
 
 otherwise vacated; that there is now actnally and equitably 
 diieyour orator upon the same the sum of dollars, to- 
 gether with interest thereon from the date of the entry of the 
 said judgment, over and above all claims of the said G D by 
 way of set-off or otherwise. 
 
 Forasmuch, therefoi-e, as your orator is without remedy in 
 the premises, except in a court of equity; and to the end that 
 the said D and G H, who are made parties defendant to 
 this bill, may be requii-ed upon their several and respective 
 corporal oaths, and according to the best and utmost of their 
 several and respective knowledge, remembrance, information 
 and belief, full, true, direct and perfect answer make, to all 
 and singular the matters and things hereinbefore stated and 
 charged, as fully and particularly as if the same were here 
 again repeated and they severally thereto interrogated, and 
 especially that they may each set forth and state the facts and 
 circumstances attending the said conveyance, the amount of 
 money actually paid thereon by the said G H to the said C 
 D, and how and in what manner the payments were, or were 
 to be made, from whence the said G H derived the funds with 
 which to make said purchase, and the purpose of said convey- 
 ance; and that the defendants may also severally answer make 
 to such of the several interrogatories hereinafter numbered, 
 as by the note hereunder written, they are respectively required 
 to answer, that is to say: 
 
 i. Whether, etc. {Here insert as many interrogatories as 
 may he deemed necessary.') 
 
 And that upon the hearing thereof, the said conveyance, 
 including the deed thereof, as to the complainant, be set aside, 
 vacated and declared null and void; that an injunction be 
 allowed, restraining the said- defendants, or either of them, 
 from disposing of, transferring, incumbering, or in any man- 
 ner interfering with the said property, or any part thereof; 
 that a receiver be appointed, with the usual powers and duties 
 of a receiver; and that the complainant may be authorized to 
 proceed upon his said writ oi fieri facials issued as aforesaid, 
 or issue another writ thereon, as it may be deemed necessary; 
 and that the sheriff of said county thereupon be directed to 
 proceed to levy upon, advertise and sell said premises for the 
 payment and satisfaction of your orator's said judgment, in- 
 terest and costs; and that your orator may haVe such other 
 and further relief in the premises as equity may require, and. 
 to tliis honorable court shall seem meet. 
 
 May it please, etc. {Pray process, and for an injunction, 
 and add affidavit and noie, as in the last form — . JNo. 176.) 
 
468 CREDITOR'S BILL. 
 
 Form of Bill — Bill by Creditor against Executrix. 
 
 Ifo. 178. Bill hy creditor against executrix of a deceased 
 
 dehtor. 
 
 State of Michigan. 
 
 The Circuit Court for the Coiinty of . In Cliancery. 
 
 To tlie Circuit Court for the County of . In Chancery. 
 
 Your orator, A B, of, etc., for and on behalf of hiniseif and 
 all other creditors of C D, late of, etc., deceased, who slmll 
 come in and contribute to the expense of this suit, respect- 
 fully represents unto this honorable court, that the said C 
 D, deceased, was in his life-time, and at the time of his de- 
 cease, indebted to your orator in the sum of dollars, ior 
 
 and on account of, etc. {Here state the nature of the indebt- 
 edness), which said sum of dollars still remains due and 
 
 owing to your orator. 
 
 And your orator further represents, that the said C D was 
 also at the time of his decease, as it is alleged, indebted to 
 certain other persons by specialty, simple contract or otlier- 
 wise. And that the said CD being so indebted, and being 
 possessed of, or well entitled to, considerable real and person- 
 al estate, departed this life on or about the day of , 
 
 18 — , having first duly made and published his last will and 
 testament in writing, bearing date, etc., and tliereby gave 
 and bequeathed all his estate and effects in the words and man- 
 ner following, that is to say: "1 give and bequeath unto 
 my dear wife, E D, all my estate, real and personal, and effects 
 whatsoever, and wheresoever absolutely. And I appoint my 
 said wife executrix of this my last will and testament, and I 
 revolie all other wills by me heretofore made. It is my will 
 that letters testamentary issue to my said wife without it be- 
 ing required of her to enter into bond with security as sncli 
 executrix." And your orator further represents, that the said 
 testator departed this lite without having revoked or altered 
 his said will, and that immediately after his decease the said 
 E D possessed herself of a considerable part of his ])ersonal 
 estate and effects, and converted the same to her own use, and 
 entei-ed into possession of liis real estate and receipt of the 
 rents and profits thereof. And that afterward, on, etc., the 
 said E D duly proved the said last will and testament in the 
 court of the county of aforesaid, and letters testa- 
 mentary were granted to her by said court, without requiring 
 her to enter into bond with a good and snfl5cient security 
 condition according to law, and she took upon herself the 
 burden of the execution thei'eof. 
 
CREDITOR'S BILL. 469 
 
 Form of Bill — Bill by Crediior against Executrix. 
 
 And your orator farther represents, that afterward, on, etc., 
 yonr orator presented his said claim before the said — -r- court, 
 and the same was then and thei'c duly probated and allowed 
 
 to the said amount of dollars, by that court, as a claim 
 
 against the estate of tlie said C D, deceased, as a debt of the 
 class* 
 
 Your orator further represents, that the said E D, immedi- 
 ately after the proving of the said will, and the issuing of the 
 letters testamentary as aforesaid, possessed herself of the resi- 
 due of the estate and effects of the said testator, to a very con- 
 siderable amount and value, and, togetlier with the effects of 
 the said testator so possessed and converted to her use before 
 that time, as aforesaid, much more than sufficient to discharge 
 and satisfy all his, just debts, funeral and testamentary ex- 
 penses, but that the said E D has not yet paid or satisfied the 
 debt due to your orator, or any part thereof, and the same, 
 together with some other of the debts owing by the said C D, 
 at thetime of his decease, still remain unsatisfied. And the 
 said E D, having as aforesaid possessed assets of the said C 
 D, much more than sutficient to satisfy all his debts, your 
 orator has applied to aiid requested the said E D to satisfy 
 the same accordingly. And your orator well hoped that th« 
 said E D, would have complied with such request, as in jus- 
 tice and equity she ought to have done. But now so it is, 
 may it please your honor, that the said E D, combining and 
 conlederating with divers other persons at present unknown 
 to your orator, etc., refuses to pay the debt of your orator, and 
 alleges that the personal estate and effects of which the said 
 D. deceased, was possessed of, or entitled to, at the time of 
 his decease, and which have come to her hands, or to the hands 
 of any person or persons by her order, or for her use, was 
 sitiall and inconsiderable, and has already been exhausted in 
 the payment of his funeral expenses, and debts of a class sn- 
 lierior and prior to that of your orator, and other creditors, 
 having claims of a similar class; and that nothing now re- 
 mains in her hands of the assets of the said C D, deceased, 
 with which to pay such unsatisfied debts; and she wholly re- 
 luses to sell the said real estate or any part thereof, for the 
 purpose of paying the said debts from the proceeds thereof; 
 and refuses to apply the rents and profits of the said real es- 
 tate, to the payment of said demands, but applies and converts 
 the same to her own use, and refuses in any manner to ac- 
 count for the same, and insists that she is now the absolute 
 owner of all such real estate, and the personal property how 
 in her hands; whereas, your orator charges that the contrary 
 
470 CREDITOR'S BILL. 
 
 Form of Bill — Bill by Creditor against Executrix. 
 
 of such pretenses is true, and that upon a fair accounting 
 with respect to said estate, a sufficient sum would appear to 
 be in the hands of the said E D, to satisfy all said debts. 
 
 Forasmuch, therefore, as your orator is without remedy in 
 the premises, except in a court of equity, and to tlie end that 
 the said E D, who is made a party deftiudant to this bill may 
 be required to make iuU and direct answer to the same; and 
 especially that she may set fortli and discover the nature, 
 amount and value of all the property, real and personal, inter- 
 ests and effects of the said D, deceased, of whatever nature 
 and kind, with all tiie particulars relating thereto, owned by 
 the said D at the time of his death, and which came into 
 the possession or control of the defendant, or into the posses- 
 sion of any other person or persons for her use, and what has 
 been done with the same or tiie avails thereof; and that the 
 defendant may answer make to the several interrogatories 
 hereinafter numl)ered and set fortli, that is to say: 
 
 1. Whether you, the said E D, did not, soon after the 
 death of the said C D, take possession of a considerable por- 
 tion of the personal property and effects of the said D, and 
 convert the same to your own use? If yea, give the nature, 
 amount and value of the same, and state what has been done 
 with the proceeds or avails thereof. 
 
 2. Whether, etc. (and so on, inserting such interrogatoTi.es 
 as may he deemed necessary). 
 
 And that an account may be taken by and under the direc- 
 tion of this honorable court of the real and personal estate of 
 the said C D, deceased, and of the debt due your orator, and 
 of the debts due to the other creditors of the said C D 
 remaining unsatisfied at the time of his decease, and of the 
 rents and profits of his real estate, which have been possessed 
 by, or come to the hands of, the defendant, or of any person 
 or persons by her order or for her use: and that the real and 
 personal estate of the saidC D, or so much thereof as remains 
 ■unapplied and undisposed of may be applied, in the first place, 
 in or toward the satisfaction of his funeral expenses, in case 
 the same have not been satisfied, and then, etc. (as required iy 
 law in reference to preference); then in satisfaction of the 
 debt due to your orator, and the other creditors of the same 
 class, who shall come in in like manner and contribute to the 
 expense of this suit equally, and share alike in due course of 
 administration; and that a receiver may be appointed by this 
 honorable court to collect in and receive the outstanding per- 
 sonal estate and effects belonging to the said C D, and the 
 rents and profits of his real estate; and that the defendant 
 
CREDITOR'S BILL. 471 
 
 Form of Bill— Order Appointing a Receiver in a Creditor's Suit. 
 
 may be restrained, by the injunction of this honorable court, 
 from receiving the rents and profits of his real estate, and from 
 collecting in and receiving any such outstanding personal 
 estate, and from assigning, selling, or parting with any part 
 of tlie personal estate and effects of or belonging to the said 
 D, now in the custody or power of the said defendant, or in 
 the custody, possession or power of any person or persons in 
 trust for her; and that your orator may iiave such otlier and 
 further relief in the jiremises as equity may require, and to 
 tills honorable court shall seetn meet. 
 May it please, etc. {Pra^/ process mid for injunction^ 
 
 No. 179. Order apjpointing a receiver in a creditor's suit- 
 
 {Proceed as in No. 108, ante, page 215, to the asterisk'-, 
 and continue): 
 
 It is ordered that E F, of, etc., be and he is hereby appointed 
 receiver of the estate and property, real and personal, tilings 
 in action, debts, equitable interests aiid otlier effects of the 
 defendant, D, and which belonged to, or were held in trust 
 for him, at the time of the commencement of this suit, or in 
 which he had any beneficial interest, except such property as 
 is by law exerppt from execution ; and, also, except where siicli 
 trust property has, in good faith, been created by, or the fijiid 
 so held in trust has proceeded from some person other than 
 the defendant, C D, himself, and of the real estate mentioned 
 and described in the complainant's bill, to wit [Here 
 describe it): and the rents, issues, incomes and profits thereof, 
 with the usual powers and duties of receiver, upon the said 
 receiver executing and filing with the clerk of this court a 
 bond in the usual form, to the people of this State, in the 
 
 penal sum of dollars, with sureties, to be approved by 
 
 this court. And it is further ordered that the defendant, 
 C D, do assign, transfer and deliver to said receiver, on oath, 
 under the direction of S W, a circuit court commissioner, 
 of this court, all such property, real and personal, things in 
 action, equitable interests, and other effects, except as afore- 
 said, property exempt by law from execution, and trust 
 property, where the trust has been created by, or trust fund 
 proceeded from, some person, in good faith, other than the 
 defendant himself. And that he deliver to said receiver, 
 in like manner, all bills, notes, contracts, books of account, 
 etc., and other evidences relating thereto. And that the 
 defendant, D, execute and deliver to said receiver, under 
 
472 CREDITOR'S BILL. 
 
 Form — Referring Creditor's Bill to Master — Debt be paid out of Funds. 
 
 the direction of the said commissioner, a general assign- 
 ment of such property and eflPects; and also execute, ac- 
 knowledge and deliver to said receiver, under the direction 
 of the said commissioner, a conveyance and assignment 
 of the real estate mentioned in said bill, and hereinbefore 
 described, and of the rents, issues and profits thereof. And 
 that the defendant C D, and his tenants, etc., attorn to the 
 said receiver, and pay to him the rents and profits, and that 
 the said receiver have power to make leases of such real estate, 
 from time to time, not exceeding one year, as he may deem 
 advisable. And that the defendant appear before the said 
 commissioner, as he shall be summoned or required to do, 
 from time to time, and produce such books, papers and ac- 
 counts, and submit to such examination, as said commissioner 
 shall direct in relation to any matter which he may be lawfully 
 required to disclose. 
 
 The above order is to be varied to conform to the circum- 
 stances of each particular case. If any further special direc- 
 tion or provision is desired, insert it at the end of the form. 
 
 No. 180. Order referring creditor's hill to master, to examine 
 ' deferidant and witnesses. 
 
 (Proceed as in No. 108, ante, page 215, to the asterisk *, 
 and proceed): 
 
 It is ordered that this cause be referred to S W, a circuit 
 court commissioner of this court, to examine the defendant, 
 C D, and such witnesses as shall be produced before him 
 under oath, and upoa interrogatories concerning the property, 
 chattels, things in action, equitable interests, and effects of the 
 defendant, C D, and to report the same to this court, with all 
 convenient speed; and that the defendant C D do appear and 
 attend from time to time, and when summoned or required 
 so to do. before said commissioner, and produce such books, 
 accounts and papers, and submit to such examination as the 
 said master shall direct, in relation to any matter which he 
 may lawfully be required to disclose; and that the said com- 
 missioner, or either party, be at liberty to apply to the court 
 at any time for further directions. 
 
 No. 181. Decree that complainani's debt he paid out of 
 funds in the hands of the receiver. 
 
 {Caption and title of cause as in No. 105, ante, page 210.) 
 This cause having come on to be heard upon the bill of com- 
 
CREDITOR'S BILL. 473 
 
 Form of Bill— Debt be Paid out of Funds. 
 
 plaint herein, tlie answers of the defendants thereto, the repli- 
 C!\tion of the complainant to siicli answers, and the report of 
 the receiver heretofore appointed in this cause, and the report 
 of the circuit court commissioner, to whom the same was 
 referred to examine the defendant and other witnesses in the 
 cause, which said reports are each hereby approved and con- 
 firmed; and this cause having been argued by the counsel for 
 the respective parties; and the court bein^ f"l',7 advised in the 
 premises, doth 07'der, adjudge and decree, that out of the 
 moneys in the hands of the said receiver, collected and held 
 by him, as shown by his said report, the said receiver, after de- 
 ducting liis charges for disbursements and commissions, do 
 pay the costs of this suit, to be taxed by the register of this 
 court, and out of the residue of said moneys, he pay the com- 
 plainant tlie amount of the said judgment, to wit, t!ie sum of 
 
 dollars, with interest thereon from the time the said 
 
 judgment was entered, to wit, the day of, etc., and that 
 
 he take from the complainant an acknowledgment of satis- 
 faction of said judgment, and deliver the same to the defend- 
 ant D, to the end that said judgment may be canceled and 
 discharged of record. {If there is no other claimant upon 
 the f and in the hand.s of the receiver, add) : 
 
 Audit is further ordered, adjudged and'decreed, that the said 
 receiver do pay over to the defendant C D, the residue of the 
 moneys so remaining in his hands, or account with him for 
 the same, and deliver to him all and singular the property 
 and effects, books of account, evidences of debt, or other pa- 
 pers or documents relating to said trust estate, on demand of 
 the defendant C D; and also, if the defendant C D shall so 
 require, that the said receiver execute back to him a general 
 release and assignment of all and singular the property, equi- 
 table interests and effects, of said trust estate, remaining in his 
 hands undisposed of On which assignment and delivery be- 
 ing made, it is adjudged that the said receiver ba discharged 
 from his said trust. 
 
 If the amount in the receiver's hands is not sufficient to pay 
 the debt and costs, the decree must of course be varied to 
 meet the facts, and will merely direct the receiver to pay the 
 amount so collected upon the judgment, and take the com- 
 plainant's receipt therefor. If assets, etc., remain undis- 
 posed of, the court may direct their sale and application. 
 
 If there are other claimants upon the fund, or the receiver- 
 ship has been extended over the property in a subsequent suit, 
 
474 CREDITOR'S BILL. 
 
 Form of Bill — Setting Aside Fraudulent Conveyance in Aid of an Action. 
 
 the court, instead of ordering the surplus to be paid over to 
 tlie defendant, will direct it to be brought into court, to abide 
 its further order. 
 
 ]Vo. 182. Decree setting aside a fraudulent conveyance in aid 
 of an execution. 
 
 {Caption, and title of cause as in No. 105, ante, page 210.) 
 
 This cause coining on to be heard upon the bill of complaint 
 herein, the answers of the defendants thereto, the replication 
 of the complainant to such answers, and the report of the com- 
 missioner to whom the same was referred to take proofs of the 
 matters alleged in the bill, which said report is hereby ap- 
 proved and confirmed; and the court having heard the argu- 
 ments of the counsel of the respective parties, and being fully 
 advised in the premises, doth order, adjudge and decree that 
 the deed of conveyance, bearing date on, etc., made and exe- 
 cuted by the defendant C D to G H, for the premises described 
 therein, and in the complainant's bill, to wit: (Here describe 
 the premises), be and the same is hereby set aside and vacated 
 and declared null and void, and of no eflect-whatever, as again- 
 st the complainant. 
 
 And it is further ordered, adjudged and decreed, that the 
 complainant be authorized to proceed upon his writ- of ^en 
 
 facias, issued upon the judgment rendered in the court 
 
 of the county of aforesaid, described in the said bill of com- 
 plaint, wherein he is plaintiff', and the defendant D defend- 
 ant, for dollars and costs; or issue another writ oi fieri 
 
 facias thereon, if it be necessary, and that the sheriif of said 
 county thereupon proceed to levy upon, advertise and sell said 
 real estate for the payment and satisfaction of the said judg- 
 ment interest and costs. 
 
 And it is further ordered, adjudged and decreed, that the de- 
 fendant CD pay the costs of this proceeding, to be taxed by 
 tiie register of this court ; and if the proceeds of the sale of the 
 said premises be not sufficient to pay said judgment, inter- 
 est and costs, and the costs of this suit, that the complainant 
 have further execution for the same against the defendant C D. 
 
 On setting aside a voluntary conveyance, as in fraud of cred- 
 itors, the decree should be an alternative one as to the grantee, 
 that if the judgments are not paid by the time limited, the lands 
 shall be sold, giving the grantee an option to pay the debts. 
 It should not be a per.-;onal decree against the grantee, {a) 
 
 (a) Patterson v. McKinney, 97 111. 41. 
 
PARTITION SUITS. 473 
 
 Nature of, and how Instituted. 
 
 CHAPTER XXX. 
 
 PA ETITION SUITS. 
 
 Section 1. Natukb op, akd how Instituted. 
 
 2. Paiitibs to. , 
 
 3. Bill. 
 
 4. Refbhbnce and Procebdinqs Thbueon. 
 
 5. Procbbdin(J9 to Dbckbe. / 
 
 6. Hbakinq and Decree. 
 
 .SECTION 1. 
 
 NATURE OF, AND HOW INSTITUTED. 
 
 Partition is the severance of ooinmon or iindividsd interests. 
 It is particularly applied to interests in realty. At common 
 law lands held by two or more persons were held by tliein ei- 
 ther in joint tenancy, in common, or in coparcenary. The first 
 two of these estates were created by the act of the parties. The 
 lust was created by operation of the law, when in casting a de- 
 scent it devolved a single estate upon two or more heirs; as, 
 for example, when an estate in fee of one who left no male siic- 
 cessioii,_passed to his daughters or other female relatives. These 
 persons were called coparceners. Theirs was the only joint 
 estate of which the common law would compel a dissolution 
 at the request of a single party. Joint tenants and tenants in 
 eomnion became so by their own mutual agreement and act, 
 and the tenancy could be justly severed only by their mutual 
 consent. But coparceners are rendered so by operation of law, 
 ai!d lest any one of them be prejudiced by the perver^eness of 
 his fellows, the law will lend its aid, if he ask it, and help him 
 by partition, to theenjoymant of his separate interest. 
 
 In the reign of Henry VIII (1527), and of William lY 
 (1833), special statutes were passed extending this common 
 law benefit, which hithferto coparceners alone had enjoyed, to 
 
476 PARTITION SUITS. 
 
 Nature of, and how Instituted. 
 
 joint tenants and tenants in common, so that partition then 
 became incident to all estates held in common. 
 
 In tiie United States tlie technical joint tenancy is quite 
 obsolete; joint ownership being, it' not under express statute, 
 yet in effect, only tenancies in common. So, also, the technical 
 distinctions between estates in common and in coparcenary 
 have lost nearly all their force. Much, therefore, of " the 
 cunning learning of partition," as it exists in the English law, 
 is inapplicable here. Yet, as among us, real property generally 
 passes, on the death of an ancestor, to more persons than one; 
 partition still retains an importance in respect to the tenancies 
 in common of heirs and devisees. T 
 
 In some of the States the operation of this remedy is extended 
 by statutes beyond the limits lixed for it by t)ie common law, 
 or the statute of Henry VIII. Partition in England was made 
 either by mutual consent or upon compulsion. In the latter 
 case the relief was sought' either by a writ of partition, sued 
 out by one party, at common law, or by his petition to tlie 
 court of chancery. 
 
 If the courts of law ever had exclusive jurisdiction of par- 
 tition, as it is sometimes asserted, it must have been at a very 
 remote period. For as early as the reign of Elizabeth (1571), 
 it is certain that chancery took cognizance of tlie matter, and 
 in modern times has exercised an almost exclusive jurisfjiction. 
 
 There is good reason, in most of the States, tor the preference 
 of chancer}' courts over courts at law, in matters of partition; 
 the proceeding at law being regarded as far less effectual than 
 that in equity. The courts of law are generally limited to a 
 mere allotment, according to the proportional shares of the par- 
 ties in interest; and this often causes a purely mechanical, and 
 sometimes a prejudicial, division of an estate. But chancery is 
 not restricted to the exact balancing of equivalent shares, but 
 is capable of all equitable adjustments of the matter, and may 
 distribute among the proprietors the separate, though unequal, 
 parcels of the estate, assigning to the several parties the por- 
 tions which will best suit their respective condition, equaliz- 
 ing such a partition by decreeing pecuniary compensation to 
 
PAETITfON SUITS. 477 
 
 Nature of, and how Instituted. 
 
 be made, or in other cases ordering equitable payments by 
 some for improvements made in the common ^^roperty of 
 others. This jurisdiction is exercised with peculiar fitness in 
 all eases where purely equitable .rights, conflicting claims of 
 parties, or modes of enjoyment are to be adjusted, (a) 
 
 In most, if not all, the States, the jurisdiction of the courts 
 in relation to partition suits, is regulated by very minute stat- 
 utory provisions, and to these reference must be made for the 
 particular methods of procedure, and the powers of court. 
 
 Under the Michigan statute, all persons holding lands as 
 joint tenants, or tenants in common, are entitled to partition 
 of the same. Any one or more of the persons so holding land 
 may institute-suit in the circnit'Court for the county in which 
 the land lies for a division or partition thereof, according to 
 the respective rights of the parties interested therein; and for 
 a sale thereof, if it appears that a partition can not be made 
 without great prejudice to the owners. (5) The probate court 
 has also power to decree partition in the closing up of estates, 
 when assigned to heirs, devisees or legatees, and held by them 
 in common, (c) The party applying for partition must have 
 a present interest in the premises, as a joint tenant or tenant in 
 common, and he must also be actually or constructively in 
 possession of his undivided share. If the lands are adversely 
 held and he has no such possession, and if the title is doubt- 
 ful and suspicious, a bill for partition would be premature. 
 Under such circumstances, the plaintiff should first establish 
 his title at law. (d) 
 
 When the State holds lands with individuals as tenants in 
 common, the same proceedings are had for partition as against 
 an individual. The subpoena and notices are served on the 
 attorney-general, who appears for the State, and the State 
 
 (a.) Gregory v. Grover, 19 111. 60?; Walker v. Laftin, 26 111. 472; Wil- 
 ton V. Tazewell, 86 III. 29; Labidie v. Hewett, 85 111. 341. 
 
 (6) Comiy. L. 1871, § 6267; see Paifne v. Avery, 12 Mich. 540 ; Campau 
 v. Campau, 19 Mich. 116. 
 
 (c) Comp. L. 1871, § 4449. 
 
 (d) Hoffmm v. Beird, 22 Mich. 65. 
 
478 PARTITION SUITS. 
 
 Parties to — Complainant — Defendants. 
 
 bears its portion of the costs, (a) Claims to land, barred by 
 the statute of limitations, will not be reviewed by proceedings 
 in partition, (b) 
 
 Partition as a proceeding is local, and is only to be enforced 
 in a court having jurisdiction over the territory where the 
 land is situated, (c) The court of chancery, where the title is 
 undisputed, has jurisdiction in partition proceedings between 
 joint owners of land, notwithstanding a remedy at law is 
 given by the statute, {d) The court can not decree partition 
 on a foreclosure bill, (e) In the case of proceedings against 
 non-residents, all the facts necessary to give the court juris- 
 diction must appear aiRrmatively upon the record, {f) 
 
 SECTION II. 
 
 PARTIES TO. 
 
 Complainant.— The complainant, in a suit for partition, 
 must have an estate in possession in the lands of which partition 
 is sought. An estate in remainder or reversion is not suffi- 
 cient, {g) An " estate in possession," as we have seen, means 
 an estate in present enjoyment, whether occupied by defend- 
 ant's tenants, or entirely unoccupied. (Ji) 
 
 Defendants. — Every person, in possession or otherwise, 
 having an interest in the premises sought to be partitioned, 
 and every person entitled to dower in the same, if the dower 
 has not been admeasured, may be made parties to the suit. (/) 
 In Illinois it has been held that previous to the revised 
 
 (rt) Comp. L. 1871, § § 6344, 6345. 
 (6) Comp. L. 1871, § 6346. 
 
 (c) Comp. L. 1871, § 5058; Godfrey v. White, 43 Mich. 189. 
 
 (d) Thayer v. Lane, Har. Ch. 247; Hoffman v. Beard, 22 Mich. 64. 
 
 (e) Payne v. Avery, 21 Mich. 541. 
 
 (/) Piatt V. Steuart; 10 Mich. 260; King v. Harrington, 14 Mich. 582; 
 Merrill v. Montgomery, 25 Mich. 73. 
 (.9) Comp. L. 1871, § 6268; Hoffman v. Beard, 22 Mich. 69. 
 (h) Eberts v. Fifther, 44 Mich. 551. 
 ()■) Comp. L. 1871, § 6270; Striker v. Mott, 2 Paige, Ch. 387. 
 
PARTITION SUITS. 479 
 
 Parties to — Defendants. 
 
 statute, neither a mortgage nor a judgment creditor was a 
 proper party to a partition suit, and that their rights could 
 not be affected bv a sale of the lands; (a) but inasmuch as the 
 statutes have authorized the court to decree a sale, which will 
 give a purchaser a perfect title, or to apportion incumbrances 
 among the parties to whom the incumbered portion is allotted 
 it is necessary that all incumbrancers should be made par- 
 ties. (5) 
 
 The Michigan statute provides, that in the first instance it 
 is not necessaryto make any creditor, having a lien on the 
 premises in question, or any part thereof, by judgment, de- 
 cree, mortgage, or otherwise, a party to the proceedings, 
 nor shall the partition of the premises alter, affect or impair 
 the lien of any creditoi', with the following exception, (c) If 
 the lien is on the undivided interest or estate of any of the 
 parties, either in a portion or the whole of the premises par- 
 titioned, such lien, if partition be made, shall thereafter be 
 transferred and be a charge only on the premises assigned to 
 such party, and may be enforced against the same, as though 
 such lien had originally existed thereupon; but if the person 
 having such lien be made a party to such suit, the court may 
 direct the commissioners appointed to make such partition, to 
 designate and set apart a tract or portion of the premises equal 
 in value to the estate or interest of the party to whose portion 
 the lien is to be transfeiTed, in the tract upon which such lien 
 had before existed; and on the confirmation of the report of 
 such commissioners, such lien shall thereupon be transferred 
 to the portion of the premises so designated by the commis- 
 sioners, with the same effect as is above provided in case the 
 person having such lien is not a party to such suit. Tlie por- 
 tion of the premises to which the lien is transferred shall be 
 first charged with the just proportion of the costs of the pro- 
 ceedings in preference to said lien. If, at any time prior to 
 
 (a) Welton v. Copeland, 7 Johns. Ch. 140; Sebring v. Mersereau, Hopk. 
 ■Ch. 501; Harwood v. Kirht/, 1 Paige, Ch. 469. 
 
 (6) Loomis V. Riley, 24 111. 307; see Kilgoiir v. Crawford, 51 111. 249. 
 (c) Comp. L. 1871, § 6272. 
 
480 PARTITION SUITS. 
 
 Parties to — Unknown Defendants. 
 
 the confirmatiott of the report of the commissioners ap- 
 pointed to make sucli partition, any person had an un- 
 certain or contingent interest in any part of the premises, 
 which has since the filing of the bill become a certain or 
 absolute interest, or who has acquired a title in fee to any 
 part of said premises by virtue of any mortgage or execution 
 sale of any interest thereon, shall apply to the court by peti- 
 tion, setting forth his interest in the premises; the court shall 
 thereupon direct that such person be made a party to such 
 proceedings, and shall make such other or further orders and 
 decrees respecting the rfghts of such person, as shall be agree- 
 able to equity, (a) The complainants may, at their election, 
 make every creditor having a specific lien on the undivided 
 interest or estate of any of the parties, by mortgage or other- 
 wise, a party to the proceedings; and in such case the bill 
 shall set forth the nature of every such lien or incumbrance, (h) 
 But a tax title purchaser need not be made a party if the land 
 can still be redeemed, (c) 
 
 TJnhnown defendants. — If any parties having an in,tei-est in 
 such lands are unknown, or if eitlier of the known parties re- 
 side out of this State, or can not be found therein, and suck 
 facto be made to appear to the court by affidavit, an ord er 
 •may be made by the court containing a sufficient description 
 of the premises whereof partition is sought, and requiring 
 all qjarties interested to appear and answer the bill by a day 
 in snch order to be specified, which order shall be served person- 
 ally, or shall be published once in each week successively in such 
 paper as may be designated in such order, and for such time 
 as the court shall designate, not exceeding three months. (^) 
 The proof of personal service or of the publication of 
 such order, shall authorize an order of the court for taking 
 the bili as confessed against all such unknown parties, and 
 
 (a) Ccmp. L. 1871, § 6278. 
 
 (6) Ibid, §§ 6274, 4628. Whiting v. Butler, 29 Mich 123. 
 (c) Eberts v. Fisher, 44 Mich. 551. 
 
 (rf)Corap. L. 1871, §6276; Piatt v. Steuart, 10 Mich. 260; King v. 
 Hairinglon, 14 Mich. 532. 
 
PARTITION SUITS. 481 
 
 Parties to— Guardian for Minors — Bond Required. 
 
 persons not resident in this State, or not found therein, as 
 shall not appear and answer by the day mentioned in the or- 
 der, or on such further day as the court may appoint; and all 
 Buch unknown parties as may appear, shall be entitled to be 
 made parties to the suit, and the bill may be amended accord- 
 ingly, (ffl) 
 
 Guardian for minors. — The general guardians residing in 
 this State, of all minors and other , persons under guardian- 
 ship, wlio sliould be parties to such proceedings for partition, 
 upon giving bond as hereinafter directed, shall Represent their 
 respective wards therein, wliether such wards ishall reside in or 
 out of this State; and the court shall appoint guardians for 
 all such minors who shall be interested in the premises, as 
 have no general guardians in this State, for the special purpose 
 of taking charge of the interests of such minors, in relation 
 to the proceedings; and the acts of all such guardians of 
 minors, or others under guardianship, shall be binding on 
 their respective wards, and shall be as valid as if done by 
 them respecdvely when of full age, or under no legal incapac- 
 
 Bond required. — Every such guardian shall give bond to the 
 people of this State, to be filed with the clerk of the court, in 
 such penalty, and with such surety as the court shall direct; 
 Eonditioned for the faithful performance of the trust reposed 
 in such guardian, and to render a just and true account of 
 his guardianship in all courts and places when thereunto re- 
 quired, and for the observance of the orders of the court in 
 felation to the said trust. 
 
 "When the guardian fails to give the required bond, the 
 lonrt will appoint its clerk as guardian and dispense with se- 
 curity, {d) 
 
 (a) Ibid, 6277. 
 (h) Ibid, 6278. 
 (c) Ibid, 6279. 
 (OComp. L. 1871, §6230. 
 
 31 
 
482 PARTITION SUITS. 
 
 Bill— What to Set Forth. 
 
 SECTION III. 
 
 BILL. 
 
 WJmt to set forth. — Tlie statute provides that the bill for a 
 partition or sale of any such lands, shall be verified by oath, 
 and shall particularly .describe the premises sought to be divi- 
 ded, and shall set forth the rights and titles of all persons in- 
 terested therein, so far as the same are known to the com- 
 plainant, including the interest of any tenant for years, for 
 life, by the coi^iesy or in dower, and the persons entitled to 
 the reversion, remainder or inheritance after the termination 
 of any particular estate therein, and every person who, by 
 any contingency contained in any devise, grant or otherwise, 
 may be, or be&orae entitled to any beneficial interest in the 
 premises, {a) If the defendants can be found, or if they re- 
 side in tliis State, they must be served with subpcEna to ap- 
 pear, as in other cases, and the bill may be taken as confessed, 
 according, to the practice in courts of equity. (5) 
 
 In case any of the parties just mentioned, or the share or 
 interest of any of them be unknown, or uncertain or contin- 
 gent, or the ownership of the inheritance shall depend upon 
 an executory devise, or the remainder shall be a contingent 
 remainder, so that such parties can not be named, the same 
 shall be set forth in the bill, (c) 
 
 A bill that discloses that persons who are not made parties 
 have like interests with, those that are set up by the com- 
 plainant, is demurrable for want of parties. (cZ) The equitable 
 rights of the parties must appear from the pleadings, (e) A 
 statement in a bill by executors or devisees that the undivided 
 half of the premises was devised to the latter in common, with 
 power in the executor to sell, is a sufiicient allegation of tlie 
 
 (a) Ibid. § 6268.' / 
 
 (6) Ibid. § 6275; EUrts v Fxsher, 44 Mich. 551. 
 
 (c) Comp. L. 1871, § 6271. 
 
 (d) Taylor v. King, ,46 Mich. 42. 
 
 (e) Thayer v. Lane, Walk. Ch.204: • ~ ' 
 
PARTITION SUITS. 483 
 
 Bill— Answer — Feigned Issue — Amendment of Bill. 
 
 latter's interests when they claim no partition between them- 
 selves, (a) 
 
 Answer.— T{ the defendants rely upon' a lease, they mnst 
 include snch averments in their answer as will enable them to 
 maintain their interests, so tliat whether the land be parti- 
 tioned or sold, equities may be adjusted in it or its pro- 
 ceeds, {h) Any defendant may deny the joint tenancy, or 
 tenancy in common of any co-defendant, (c) 
 
 Feigned issue. — Whenever the court shall deem it neces- 
 sary, for the purpose of determining the rights of any of the 
 parties in the premises of which partition shall be sought, 
 that any issue of fact between the parties or any of them, 
 should be tried by a jury, such court may award a feigned 
 issue for that purpose, which shall be tried by a jury, and 
 the verdict thereon be returned as in other cases and with like 
 effect, (d) 
 
 Amendment of Mil. — Either before or after the trial of 
 such issue, the court may permit the bill and all subsequent 
 proceedings to be amended so as to represent truly the rights 
 claimed by any party ; or so as to make any person a defend- 
 ant who shall have appeared in the course of the proceedino-s 
 to be interested in the premises, and who might originally 
 have been made a defendant if his interest had then existed 
 or been known ; but no person shall be so made a defendant, 
 unless by his consent, without twenty days' notice of the 
 motion to that effect being personally served on him, or pub- 
 lished once in each week successively for one month in such 
 paper as the court may direct, (e) After any such amend- 
 ment, any party whose rights are affected thereby, and who 
 has not had an opportunity to sustain his claim, shall have 
 
 {a) Page V. Webster, 8 Mich. 263. 
 (6) Ebertsv. Fisher, 44 Mieh. 551. 
 
 (c) Conip. L. 1871, § 6281. 
 
 (d) Comp. L. 1371, § 6281 ; Hoffman y. Beard, 22 Mich. 99. 
 (f) Comp. L. 1871, § 6282. 
 
484 PARTITION SUITS. 
 
 Bill — Bill for Partition between two Heirs, Subject to Widow's Dower. 
 
 the right to answer the bill, or to "put in a further answer 
 thereto, and to maintain his claim, as the circumstances of 
 the case may render proper, (a) 
 
 The statute also provides that " before making any order 
 of sale of the said premises where creditors or other persons, 
 having specific liens, or purchasers at mortgage, or execution 
 ^ales of interests in any part of the premises, shall not have 
 been made parties, the court shall direct the complainant to 
 amend his bill by making parties to the proceedings every 
 person having a specific lien on the undivided interest or 
 estate of any of the parties b_y mortgage or otherwise, and 
 also persons who have acquired an interest under mortgage 
 or execution sales. (5) When the suit is commenced a notice 
 lis pendens should be filed. 
 
 No. l83. Bill for partition 'between two heirs, subject to 
 widcw^s dower. 
 
 State of MifiiiiOAisr. 
 
 The Circuit Court for the Oonnty of . In Chancery. 
 
 To the Circuit Court tor the (Jounty of . In Chancery. 
 
 Your orator, A B, of, etc., respectfully represents unto this 
 honorable court that B B, late of, etc., deceased, the father of 
 your orator, was in his life-time, and at the time of his death, 
 the owner, and seized in fee simple of the following described 
 real estate, to wit {Here describe the premises.): 
 
 Your orator further represents, that the said B B, being so 
 seized of the said real estate, on. or about, etc., departed this 
 life, intestate, leaving C B, his widow, and your orator and 
 D B, liis sons, and only iieirs-at-law. 
 
 And your orator further rejjreseuts, that by the death of 
 the said B B, your orator and the said D B became seized in 
 fee as tenants in common, by descent from the said B B, of 
 the said described premises; that is to saj', your orator and 
 the said D B each became seized of tlie one equal undivided 
 half part of the said premises, each of the said portions being 
 subject, however, to tlie right of dower of the said C B, widow 
 of the said B B. 
 
 And your orator further represents, that the dower of the 
 
 (a) Ibid, 6283. 
 
 (6) Comp. L. 1871, § 6303. 
 
PA&TITION SUITS. 485 
 
 Bill — Bill for Partition between two Heirs, Subject to Widow's Dower. 
 
 said widow, in the said described premises, has never been ad- 
 measured, or in any way set apart to her from the estate of the 
 said B B. 
 
 Your orator further represents, that no person or persons, 
 other than your orator and the said D B and C B, have any 
 interest In, or title to, the said described premises, or any part 
 thereof, in possession, remainder, reversion, or otherwise. 
 
 Your orator further represents, tliat he is desirous that a 
 partition or division sliould be made of the said several par- 
 cels of land, between your orator and the said D B, according 
 to their respective rights, estates and interests therein; or in 
 case the same can not be divided and partitioned without ma- 
 terial injury to the parties' interested 'therein, then that the 
 same may be sold, and the proceeds thereof divided among 
 such parties, according to their respective rights and inter- 
 ests. 
 
 Your orator further represents, that he has frequently ap- 
 plied to the said D B, and requested him to come to an equi- 
 tably and just division and partition of the said described 
 premises, between your orator and the said D B, or in case 
 they can not agree upon an amicable division, that tliey join in 
 making sale of the said premises, and divide the proceeds 
 thereof; but so it is. may it please your honor, the said D B 
 wholly refuses to join in any just and equitable division or 
 partition of the said described premises, or to join in the sale 
 thereof, as aforesaid. 
 
 Forasmuch, therefore, as your orator is without remedy in 
 the premises, except in a court of equity; and to the end that 
 the said D B and C B, who are made parties defendant to 
 this bill, may be required to make full and direct answer to 
 the same, but not under oath, the answer under oath being 
 hereby viaived; and that division and partition of the above 
 described premises may be made between the parties, accord- 
 ing to the course of practice in this court, and the statute in 
 such case made and provided, and according to the respective 
 riivhts of the parties interested therein, subject to the widow's 
 dower, as aforesaid; and in case it shall appear that apartition 
 thereof can not be made without manifest injury to the rights 
 of tlie parties therein, then that the said premises may be de- 
 creed to be sold under the direction of this court, and the 
 proceeds of the sale, after paying the costs and charges of this 
 suit, be divided among the said parties, according to their re- 
 spective rights and interests therein. And that the rights 
 and interests of the said parties in the premises, or in the 
 proceeds thereof, may be ascertained and declared by the 
 
486 PARTITION SUITS. 
 
 Bill— Bill for Pai-tition. 
 
 court; and that your orator may have such other and further 
 relief in the premises, as equity may require, aud to this hon- 
 orahle court shall seem meet. 
 
 {Addjprayer for process, and verification.) 
 
 Wo. 184. Bill foi' partition. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Your orator and oratrix, A B, and B B, his wife, of, etc., 
 respectfully represent unto this honoi-able court, that E F, the 
 father of your oratrix, B B, and late of, etc., now deceased, 
 was, at the time of making liis last will and testament, and 
 also, at the time of his death, seized in fee simple, and pos- 
 sessed of all the following described real estate, to wit {Here 
 descriie the premises.): and being so seized and possessed as 
 aforesaid, the said E F departed this life on or about the, etc. 
 
 And your orator and oratrix further represent, that the said 
 E F, in his litie-time, to wit, on or about the, etc., made 'and 
 published his last will and testament in due form of law, and 
 duly authenticated to pass real estate; and in and by the said 
 last will and testament, the said testator did, among other 
 things, give, devise and bequeath unto his son, A F, and to 
 his heirs forever, all of the above described premises, subject 
 to a life estate therein of his mother, B F, the widow of the 
 said E F; as will more fully appear by the said will, when 
 produced, and by a copy "thereof, hereto attached, marked 
 " Exhibit A," and made a part of this bill. 
 
 Your orator and oratrix further represent, that the said last 
 will'and testament of the said E F, was afterwards, on, etc., 
 
 duly proved and probated by the court of, etc., as will 
 
 more fully appear by the record thereof, in the office of the 
 clei-k of said ■ court, refei'ence thereto being had. 
 
 Your orator and oratrix further repi'esent, that the said 
 A F, on, etc., departed this life intestate, and without lawful 
 issue; leaving your oratrix, the said B B, wife of your ora- 
 tor, A B, S M, widow of C M, deceased, J B, C D and M 
 W, his only heirs-at-law him surviving. 
 
 And your orator and oratrix further represent, that the 
 said B F, widow of the said E F, the testator aforesaid, de- 
 parted this life on or about, etc.; and that by means of the 
 deaths of the said A F and B F, as aforesaid, the said described 
 premises became and was vested in your oratrix, S M, widow 
 of M, deceased, J B, C D and M W, the only heirs at-law 
 of the said A F. as tenants in common in fee. 
 
PARTITION SUITS. 487 
 
 Bill— Bill for Partition. 
 
 Your orator and oratrix further repi'esent, that on, etc., and 
 subsequent to the d6ath of the said A F, the said J B, and S 
 B, his wife, by their certain deed, executed and acknowledsjed 
 in due form of law, to pass the title to real estate, did remise, 
 release, and quit-claim unto your orator all their right, title 
 and interest of, in and to the aforesaid described premises; as 
 by the said deed, when produced, will more fully appear. 
 
 And your orator and oratrix further represent unto your 
 honor, that the several parties to this suit are seized in fee 
 simple, and entitled to the said described premises, as ten- 
 ants in common; and that their rights and interests tliereiu 
 are as follows, to wit: your orator, A B, as the grantee of 
 
 the said J B, is seized of and entitled to an undivided 
 
 part thereof; that your oratrix, B B, in her own riglit, is 
 
 also seized of, and entitled to an undivided part thereof, 
 
 etc. {Here set forth the witerests of all the parties.) 
 
 Your orator and oratrix further represent, that tlie afore- 
 said premises is the only real estate owned in common by 
 the parties to this suit; and that no other person or persons 
 than the parties above named, have au)^ interest in, or title to, 
 the said described premises, or any part thereof, in possession, 
 remainder, reversion, or otherwise. 
 
 And your orator and oratrix further represent, that tJiey 
 are desirous that a division or partition of the said described 
 premises should be made among the several parties seized o\\ 
 or entitled thereto, according to their respective rights and 
 interests therein; and in case the same can not be divided 
 among the owners thereof, without manifest injury or preju- 
 dice to the parties interested therein, tiiat then the same niav 
 be sold, and the proceeds thereof divided among such parties, 
 according to their respective rights and interests; and for 
 that purpose have made frequent applications to the other 
 owners thereof. And your orator and oratrix well hoped that 
 they would have come to an equitable division and partition, 
 as requested by your orator and oratrix, as in justice and 
 equity they ought to have done. But now so it is, may it 
 please your honor, that the said S M, D and M "W", defend- 
 ants in this suit, refuse, under various pretenses, all of which 
 are untrue, to comply with the reasonable request of your ora- 
 tor and oratrix, to join in a partition and division of the said 
 premises: Ail of which actings, doings and pretenses are 
 contrary to equity. 
 
 Forasmuch, therefore, as your orator and oratrix are with- 
 out remedy in the premises, except in a court of equity; and 
 to the end that the said S M, C D and M "W, who ai-'e made 
 
488 PARTITION SUITS. 
 
 Bill — Bill for Partition and Dower. 
 
 parties defendants to this bill, may be required to make full 
 and direct answer to the same, iut not under oath, the answer 
 under oath heing hereby wavoed; that the parts or shares 
 justly belonging to j'our orator and oratrix, and all the other 
 owners hereinbefoi'e named of, in and to the aforesaid prem- 
 ises, may be settled and ascertained by and under the direc- 
 tion of this court; and that a fair division and yjartition there- 
 of may be made between your orator and oratrix, and all 
 other persons wlio siiall appear to be owners of or interested 
 therein, according to the respective rights and interests of 
 each therein; and that proper commissioners may be ap- 
 pointed to make division and partition of the said premises, 
 among the parties interested therein; or, in case a pai-tition 
 thereof, or any part thereof, by metes and bouiids, or a divis- 
 ion can not be made without manifest prejudice to the own- 
 ers, then that the same, or such parts thereof as can not be so 
 divided and partitioned, may be sold by and under the direc- 
 tion of this court, and that the proceeds of the sale, after pay- 
 ing the costs aTid charges of this suit, may be divided among 
 the owners thereof according^ to their several rights and in- 
 terests therein; and that, to that end, the rights and interests 
 of the parties interested in the said premises, or in the pro- 
 ceeds of the sale thereof, may be ascertained and declared by 
 the order or decree of this court; and that your orator and or- 
 atrix may have such otlier and further relief in the premises, 
 as tquity may require, and to this honorable court shall seem 
 meet. 
 
 May it please the court, &c. (Prayer for process and ver- 
 ification.'} 
 
 No. 185. Bill for jpourtition and dower. 
 
 State, of MicniGAisr. 
 
 The Circuit Court for the County of . In Chancery. 
 
 To the Oirc-uit Court for the County of . In Chancery. 
 
 Your oratrix, A B, and your orators, B B and C B, of, etc., 
 respectfully represent unto this honorable court, that on, etc., 
 one E B, late of, etc., departed this life intestate, leaving 
 your oratrix, A B, his widow, and your orators, B B and 
 B, his sons, and F B, G Band H B, his daughters, and only 
 cliildren and heirs-at-law; that at the time of his death the 
 said E B was possessed and seized in fee simple of the follow- 
 ing described real estate, to wit(^er6 describe the premises)'. 
 and that the said E B derived title to the said premises in the 
 maqner following, to wit {Heresetforth the chain of title): 
 
PARTITION SUITS. 489 
 
 Rtference and Proceedings — Reference on Bill Confesaed. 
 
 And your oratrix and orators further represent, that no- 
 person or persons, otlier than your oratrix and orators, and 
 the said F B, G B and H B, have any interest in, or title to, 
 the said described premises, or to any part tliereof, in posses- 
 sion, remainder, reversion or otherwise. 
 
 Your oratrix and orators further represent, that the said G 
 
 B and II B are minors, under the age of years; and that 
 
 no legal guardian has been appointed for them, by reason 
 whereof the said Gt B and H B are severally incompetent to 
 join in a voluntary partition and division of said premises, 
 "and to set apart the dower of your oratrix therein, or to con- 
 sent to a sale thereof; and, as your oratrix and orators are ad- 
 vised, no valid division and partition, or assignment of dower, 
 or a sale of said premises, can be effected without the aid 
 and interposition of some court of competent jurisdiction. 
 
 Forasmucli, therefore, as your oratrix and orators are with- 
 out remedy in the premises, except in a court of equity; and 
 to the end that the said F B, G B and PI B, who are made 
 parties defendant to this bill, may be required to make fall 
 and direct answer to the same, but not unde?' oath, the answer 
 under oath being hereby waived; that a guardian ad litem 
 may be appointed by the court for the said infant defendants; 
 that the dower of your oratrix in the said premises may be 
 assigned and set apart to her; and a division and partition of 
 the residue thereof may be made by and under the direction 
 of this conrt, between your orators B B and C B, and the de- 
 fendants, F B, G B and H B, according to their respective 
 rights and interests therein, to be adjudged by the court; and 
 that in case an assignment of dower, and division and par- 
 tition in the said premises can not be made without manifest 
 prejudice to the parties interested, that the same may be sold, 
 under the directions of the court, and the proceeds thereof dis- 
 tributed between the parties, according to their respective 
 interests; and that your oratrix and orators may have such 
 other and further relief in the premises, as equity may require 
 and to this honorable court shall seem meet. 
 
 May it please, etc., {Prayer for process and verification^ 
 
 SECTION IV. 
 
 EEFBRENCE AND PEOOEEDINaS. 
 
 Reference on bill confessed. — If the bill shall be taken as 
 confessed by any of the defendants, whether known or un- 
 known, the court shall order a reference to a master to take 
 
490 PARTITION SUITS. 
 
 Reference and Proceedings — Ascertain Situation of Premises, etc. 
 
 proof of the title of the complainants, and report the same to 
 the court; and the complainants shall exhibit before such 
 master proof of their title, and an abstract of the conveyances 
 by which the same is held, {a) 
 
 Reference to ascertain situation of premises. — Upon making 
 a decree for partition as provided in Sections 6285 and Sec- 
 tions 6286, Compiled Laws 1871, (5) an order shall be entered 
 referring it to a master to inquire into the situation of tlie 
 premises, and to report whether such premises, or any part of 
 them, are so circumstanced that a partition and division there- 
 of amongst the parties interested can not be made without 
 great prejudice to the owners. 
 
 Infant defendants. — In all cases where suit is brought for 
 partition of lands, if any defendant is an infant and has an- 
 swered gene.railj', the complainant may at any time thereafter 
 before hearing, enter an order of course for a reference to take 
 proof of all material facts of the case, and of the title of the 
 complainant; and, on such reference, he shall exhibit before 
 the commissioner, proof of his title and of all other material 
 facts, and a complete abstract of all the conveyances and in- 
 cumbrances; all of which proofs and abstracts shall be re- 
 ported to the court. And no decree shall, in such or any other 
 case, be rendered against an infant, in partition, until the 
 court is fully satisfied concerning the facts and circumstances 
 of the case; and the court may at any time order such refer- 
 ence, or further references, as justice may require, for the com- 
 plete information of the court. And the proofs shall in all 
 cases be returned to the court for its action thereon, (c) 
 
 (n) Comp. L. 1871, § 62S4. 
 (6) Pott, pige 505. 
 (c) Chancery Rule 121. 
 
PARTITION SUITS. 491 
 
 Proceedings to Decree — Appointment of Commiasioners, et<5. 
 
 SECTION V. 
 
 PEOCEEDINGS TO DECEEE. 
 
 Under onr practice there are two methods of partition. 
 One is by sale of the premises, and the other is a division of 
 the property witliout sale. Sale js decreed when from the sit- 
 uation of the property, it can not well be divided. 
 
 Ajtpovntment of commissioners. — If upon the coming 
 in of the report of the master, the court shall be satisfied 
 that partition of the premises between the parties interested 
 therein can be made without prejudice to the owners, such 
 court shall, by an order to be entered in its minutes, appoint 
 three discreet and disinterested freeholders, commissioners, to 
 make the partition so decreed, accordiniy to the respective 
 rights and interests of the parties, as the same were ascer- 
 tained and determined by such court, and in such order the 
 court shall designate the part or shares, if any, which shall re- 
 main undivided, for the owners whose interests siiall be un- 
 known or not ascertained, {a) 
 
 Yacanoies.—li the persons so appointed commissioners, or 
 either of them, shall die, resign or neglect to serve, the court 
 may, from time to time, appoint others in their places, [h) 
 
 Oath to Gommissioners. — The commissioners, before, pro- 
 ceeding to the execution of their duties, shall severally be 
 sworn before any officer authorized to administer oaths, hon- 
 estly and impartially to execute the trust reposed in them, 
 and to make partition as directed by the court; which oath 
 shall be filed with the clerk of tlie court, on or before the 
 coming in of the report of such commissioners, (c) 
 
 Partition, how m^ade. — In making partition, the cornmis- 
 
 («) Comp. L. 1871, § 6288. 
 (h) Ibid, § 6289. 
 (c) Ibid, § 6290. 
 
492 PARTITION SUITS. 
 
 Proceedings to Decree — Report of Commissioners — ^Fees, etc. 
 
 sioners shall divide the said real estate, and allot the several 
 portions and shares thereof to the respective parties, quality 
 and quantity relatively considered, according to the respect- 
 ive rio-hts and interests of the parties so adjudged and de- 
 creed by the court, designating the several shares and por- 
 . tions by posts, stones or other permanent monuments; and 
 they may, if necessary, employ a surveyor with the necessary 
 assistance, to aid them therein. («) 
 
 Report of corromissioners. — The commissioners shall make 
 an ample report of their proceedings, under the hands of any 
 two of them, specifying therein the manner of executing their 
 trust, and describing tlie land divided, and the shares allotted 
 to each party, with convenient certainty, and the items of 
 tlieir charges, (h) All the commissioners must meet together 
 in tiie perlbrmance of any of their duties, but the acts of a 
 majdrity so met shall be valid, (c ) The suit will abate by 
 tlie death of one of the tenants in common, if he dies after 
 the appointment of commissioners. No further proceedings, 
 in such a case, can be taken until the suit is renewed, {d) 
 The commissioners' report will only be set aside on such 
 grounds as will set aside a verdict, (e) 
 
 JTees. — Tlie expenses of the commissioners, including the 
 expenses of a surveyor and his assistants, when they shall be 
 employed, shall be ascertained and allowed by the court; and 
 the amount thereof, together with such compensation as shall 
 be allowed to the commissioners by tlie court, for their ser- 
 vices, shall be paid by the complainants, and shall be allowed 
 to them as part of the costs to be taxed. (/" ) 
 
 Refort set aside. — On good cause shown, the court may 
 
 (a) Comp. L 1871, § 6291. 
 (i) Ibid, § 6292. 
 (c) Ibid, § 6293. 
 
 (d) Eeiinolds v. Eeynolds, 5 Paige, 161. 
 
 (e) 9 How. Pr. 71. 
 (/) Ibid, §6294. 
 
PARTITION SUITS. 493 
 
 Proceedings to Decree — Confimiation — Persons not Aifected. 
 
 set aside tlie report and commit the case to the same, or ap- 
 point new commissioners, as often as maybe necessary, who 
 shall proceed in like manner as hereinbefore directed, [a) 
 
 Gonfirmation. — Upon the confirmation of the report of any 
 commissioners by the court, a decree shall thereupon be en- 
 tered, that sncli partition be firm and efi'ectual forever; and 
 such decree shall be binding and conclusive. 
 
 First. — On all parties named therein, and their legal rep- 
 resentatives, who shall, at the time, have any interest in the 
 premises divided, as owners in fee, or as tenants for years, or 
 as entitled to the reversion, remainder, or inheritance of such 
 premises, after the termination of any particular estate therein ; 
 or who, by any contingency contained in any will or grant, 
 or otherwise, may be or become entitled to any beneficial in- 
 terest in the premises; or who shall have any interest in any 
 undivided share of the premises, as tenant for years, for life, 
 by the courtesy, or in dower. , 
 
 Second. — On all persons interested in the premises, who 
 may be unknown, to whom notice shall have been given by 
 personal service, or by publishing the same as is hereinbefore 
 directed; and, 
 
 Thvrd. — On all other persons claiming from such parties or 
 persons or either of them. (5) 
 
 Persons not affected. — But such decree and partition shall 
 not efi'ect any tenants, or persons having claims as tenants, in 
 dower, by- the courtesy, or for life, to the whole of the prem- 
 ises which shall be the subject of such partition; nor shall 
 any such decree and partition preclude any person, except 
 such as are specified in the last preceding section, from claim- 
 ing Any title to the premises in question, or from controvert- 
 ing the title or interest of the parties, between whom such 
 partition shall be made, (e) 
 
 (a) Ibid, §6295. 
 
 (6) Comp. L. 1871, § 6296. 
 
 (c) Ibid, § 6297; Greiner v. KUin, 28 Mich. 20, 
 
494 PARTITION SUITS. 
 
 Proceedings to Decree — Partition among Heirs. 
 
 Partition among heirs. — It is provided by the Michigan 
 statute, that the pi-fcvisions of the act of tlie legislature upon 
 partition shall be applicable to lands held by a trustee for the 
 benefit of parties having a beneficial interest therein, and the 
 proceedings fo^ a partition may be instituted by the trustee, 
 or any party interested in the lands so held, and shall be reg- 
 ulated by the provisions of the act, except as hereafter set 
 forth, (a) "When the original parties in interest in said trust, 
 or any of them, may have departed this life, leaving heirs and 
 legatees, or others interested by title or right through them 
 or any of them in said lands, it shall be competent for the 
 court, at its discretion, to divide the said land by decree, 
 among the said heirs, legatees,j3r others representing the in- 
 terests of the deceased therein, sc^ae to set off the interest of 
 allsuch parties together, without subdivision among any of 
 them. (5) 
 
 In any case where it may be deemed expedient to decree 
 that the interest which may have belonged to any deceased 
 party shall be setoff in a body, without subdivision to those 
 claiming under him, it shall be sufficient to provide by the 
 decree that such parcel or interest shall be set off to the heirs, 
 assigns, or those legally entitled under or through the party 
 originally interested, who may have deceased, mentioning his 
 name in the decree, (c) 
 
 In all cases where the original parties in interest are fully 
 Jinown, but where by death, legal proceedings or other ope- 
 rations of law, it has become uncertain who are the present 
 parties in interest, it shall be competent and lawful to sepa- 
 rate the portion or interest in such lands originally owned 
 by said parties, in the manner provided in the foregoing 
 sections, instead of leaving it with the land undivided as be- 
 longing to unknown owners; and such divisions and decree 
 shall operate to convey the title to those claiming under said 
 party, according to the legal rights, whatever they may be. (fZ) 
 
 (a) Ibid, § 6348. 
 
 (h) Comp. L. 1871, § 6349. 
 
 (c) Ibid, § 6350. 
 
 {d) Comp. L. 1871, § 6351. 
 
PARTITION SUITS. 495 
 
 Partition by Sale — When Court to Order Sale — Directing Terms of Credit. 
 
 PARTITION BY SALE. 
 
 When court to order sale. — If the commissioner to whom 
 reference shiill be made, as hereinbefore provided, shall report 
 to the court that all the lands or tenements of which division 
 and partition is sonj^ht, are so situated, or that any district, 
 tract, lot, or portion thereof, is so situated that a partition 
 and division thereof amongst the persons interested therein 
 can not be made without great prejudice to the owners; and 
 if the court sliall be satisfied that such report is just and cor- 
 rect, the court may thereupon make an order that the com- 
 missioner sell the premises so situated, at public auction, to 
 the highest bidder; and if said commissioner shall report that 
 any portion, interest, or part can be divided, and partitions 
 made thereof, and that other portions, interests, or parts can 
 not be so divided without great prejudice to the owner there- 
 of, the court shall, if satisfied that such report is just, by an 
 order, appoint commissioners as hereinbefore provided, and 
 direct said commissioners to proceed to make partition and 
 division of such parts or interest of which division can be 
 made, and set apart such portions, interest, or parts thereof 
 to be sold, and the same may be sold as hereinafter pro- 
 vided, (a) 
 
 Order dvrecting terms of credit. — The court sliall direct, 
 in such order, the terms of credit which may be allowed for 
 any portions of the purchase money of wliich it shall think 
 proper to direct the investment, and for such portions of such 
 purchase money as are required by the provisions hereinafter 
 contained, to be invested for the benefit of any unknown own- 
 ers, any infants, any parties out of tlie State, or any tenants 
 for life, in dower, or by the courtesy, (b) The portions of the 
 purchase money for which credit shall be allowed, shall al- 
 ways be secured at interest, by a mortgage of the premises 
 
 (a) Ibid, § 6298. 
 
 (6) Comp. L. 1871, § 6299. 
 
496 PARTITION SUITS. 
 
 Proceedings to Decree — Separate Securities — To whom Delivered, etc. 
 
 sold, by a bond of the purchaser, and by such other security 
 as the court shall prescribe, [a) 
 
 Separate securities. — The master may take separate mort- 
 gaojes and other securities, for such convenient shares or por- 
 tions of the purchase money as are directed. by the court to 
 be invested, in the name of the clerk of the court in whose 
 office the original bill for a partition was filed, and his succes- 
 sors in office; and for such shares as any known owner of full 
 age shall desire to have so invested, in tlie name of such 
 owner. (5) 
 
 To whom delivered. — ^Upon such sales being confirmed, as 
 hereinafter mentioned, the said master shall deliver such 
 mortgages and other securities to the clerk of the court, or to 
 the known owners whose shares were so invested, (e) 
 
 Certain moneys to ie irought into court. — If it shall ap- 
 pear by the proceedings on such bill, or by such report, that 
 there are any existing incumbrances upon the estate or in- 
 terest in the premises, of any party named in the proceed- 
 ings in the suit, the court shall, in the order of sale, direct 
 the master to bring into court and pay to the clerk, the por- 
 tion of the moneys arising from the sale of the estate and in- 
 terest of such party, after deducting the portion of the costs 
 charges and expenses to which it shall be liable, {d) 
 
 Application for moneys. — Such party may apply to the 
 court to order such moneys, or such part thereof as he shall 
 claim, to be paid to him; which application shall be accom- 
 panied: 
 
 1. By his own affidavit, stating the true amoujit actually 
 due on each incumbrance, the owner of such incumbrance, 
 and his residence, as far as known to such party. 
 
 (a) Ibid, § 6300. 
 (6) Ibid, § 6301. 
 (c) Ibid, § 6302. 
 (,d) Comp. L. 1871, § 6304. 
 
PARTITION SUITS. 497 
 
 Proceedings to Decree — Proceedings thereon — Distribution etc. 
 
 2. By proof by affidavit, of the due service of a notice on 
 each owner of any incnmbrance, of the intention to make 
 such application, at least fourteen days previously. If sncli 
 owner reside in this State, such notice sliall be served person- 
 ally, or if he be absent from his residence, by leaving a copy 
 there, with some person of his household of proper age. If 
 such owner reside out of this State, such notice may be served 
 on him personally, thirty days previously, or by publishing 
 the same in such paper as the couVt may direct, three weeks 
 successively, once in each week, (a) 
 
 Proceedings thereon. — Upon such application and proof of 
 notice, the court sliall proceed to hear the proofs and allega- 
 tions of the parties; and if any question of fact shall arise, 
 which, in the opinion of the court, can not be satisfactorily 
 determined without a trial by jury, the court shall award a 
 feigned issue, to be tried as in other cases, and the costs of 
 such trial shall be paid by the party failing, which payment 
 shall be enforced by attachment as in other cases, {b) 
 
 Disstribution. — When the amount of existing incumbrances 
 shall have been ascertained, the court slmll proceed to order a 
 distribution of the moneys so brought into and remaining in 
 court, among the several credit-ors having such incumbrances 
 according to the priority thereof respectively, (c) 
 
 Discharge of incumbrances. — The clerk of the court by 
 whom any such incumbrance shall be paid off, shall procure 
 satisfaction thereof to be acknowledged, in the form required 
 by law, and shall cause such incumbrance to be duly satisfied 
 or canceled of record, and shall defray the expenses thereof 
 out of the portion of the moneys in court belonging to the 
 party by whom such incumbrance was payable, {d) The pro- 
 ceedings to ascertain and settle the amount of incumbrances 
 
 (a) Ibid, § 6305. 
 {V) Ibid, § 6300. 
 
 (c) Comp. L. 1871, § 6307. 
 
 (d) Ibid, § 6308. 
 
 32 
 
498 PARTITION SUITS. 
 
 Proceedings to Decree- -Sale of Dower or Life Estate. 
 
 as lierein provided, shall not aifect any other party in such 
 suit for partition, nor delay the paying over or investing the 
 moneys to or for the benefit of any party, upon whose estate 
 in tlie premises there shall not appear to be any existing in- 
 cumbrances, (a) 
 
 Sale of dower or life estate. — Whenever the estate of any 
 tenant in dower, or by the courtesy, or for life, in the whole or 
 any part or share of the premises in question, has been ad- 
 mitted by the parties, or ascertained by the court, to be ex- 
 isting at the time of the order for snch sale, and the person 
 entitled to such estate has been made a party t') the proceed- 
 ings, the court shall first consider and determine, under all 
 the circumstances of the case, whether such estate ought to 
 be excepted from snch sale, or whether the same should be 
 sold, and in making such determination, regard shall be had 
 to the interests, of all the parties, (c) If a sale of the prem- 
 ises, including such estate, shall be ordered, the estate and in- 
 terest of every such tenant or person shall pass thereby, and 
 the purchaser, his heirs and assigns, shall hold such premises 
 free and discharged fi'om all claims by virtue of any snch es- 
 tate or interest, whether tlie same be to any undivided share 
 of a joint tenant, or tenant in common, or tolhe whole or any 
 part of the premises sold. (5) 
 
 Upon snch sale being made of any such interest or estate, 
 the court shall direct the payment of such snm in gross, ont 
 of the proceeds thereof, to the person entitled to such estate 
 in dower, tenancy by thecourtesy, or tenancy for life, as shall 
 be deemed upon the principles of law applicable to annnities, 
 a reasonable satisfaction for such estate or interest, and which 
 the person so entitled shall consent to accept in lieu thereof, 
 by an instrument under seal duly acknowledged or proved in 
 the manner that deeds are required to be acknowledged or 
 proved, to entitle them to be recorded, {d) In case no such 
 
 (o) Ibid, § 6309. 
 (6) Ibid, § 6310. 
 (c) Ibid, § 6311. 
 (A) Comp. L. 1871, § 6312. 
 
PARTITION SUITS. 499 
 
 Pi-oeejJings to Decree — How Proceeds Determined — Sale, how Conducted. 
 
 consent is given at or before the coming in of the report of 
 sale by the master, tlien the court shall ascertain and deter- 
 mine what proportion of the proceeds of sncli sale, after de- 
 ducting all expenses, will be a jnst and reasonable sum to be, 
 invested for the benefit of the person entitled to such estate 
 or interest in dower, by the courtesy, or for life, and shall or- 
 der the satne to be brought into court for that put-pose, {a) 
 
 How pi'oceeds to he invested determined. — The proportions 
 of the proceeds of such sale to be invested, shall be ascertained 
 and determined, in the several cases, as follows: 
 
 Fi/rst. If an estate in dower shall have been included in 
 such order of sale, its proportion shall be one-third of the pro- 
 ceeds of the sale of the premises, or of the sale of the undivided 
 share in such premises, upon which such claim of dower ex- 
 isted; 
 
 Second. If an estate by the , courtesy, or other estate for 
 life, shall be included in the order of sale, its proportion shall 
 be the whole proceeds of the sale of the premises, or of the 
 sale of the undivided share thereof, in which such estate shall 
 be. 
 
 And in all cases, the proportion of the expenses of the pro- 
 ceedings shall be deducted from the proceeds of such sale. (J) 
 
 If the persons entitled to any such estate in dower, by the 
 courtesy, or for life, be unknown, the court shall take order 
 for the protection of the rights of such persons, in the same 
 manner, as far as may be, as if they were known and had ap- 
 peared. 
 
 Sale, and how conducted. — The master shall give notice of 
 any sale to be made by him, for the same time, and in the 
 same manner, as is required by law. on sales of real estate by 
 sheriffs on execution, (c?) The terms of such sale shall be 
 
 (a) Ibid, § 6313. 
 (6)- Ibid, § 6314. 
 (c) Ibid, § 6315. 
 ((J) Comp. L. 1871, § 6316. 
 
600 PARTITION SUITS. 
 
 Proceedings to Deuree — Report of Sale — Conveyances. 
 
 made known at the time; and if the premises consist of dis- 
 tinct lots, tracts, or parcels, they shall be sold separately, (a) 
 Ho such master, nor any person for his benefit, shall be inter- 
 ested in the purchase, nor directly or indirectly purchase any 
 of the premises sold; nor shall any guardian of any infant 
 party in such suit, purchase or be interested in the purchase 
 of any lands, being the subject of such suit, except for the 
 benefit or in behalf of such infant; and all sales contrary to 
 the provisions of this section shall be. void, {b) 
 
 Sepori of sale. — After - co.mpleting such sale, the master 
 shall report the same to the court, with a description of the 
 different parcels of land sold to each purchaser, the name of 
 such purchaser, and the price bid by him, which report shall 
 he filed in the court. 
 
 Conveyances. — If such sales be approved and confirmed by 
 the court, an order shall l.o entered directing the master to 
 execute conveyances pursuHiit to such sales; which such mas- 
 ter shall be authorized to do upon the entry of such order. (cZ) 
 Such conveyances so executed, shall be recorded in the comity 
 where the premises are situated, and shall be a bar, both in 
 law and equit)-, ai>ainst all persons interested in any way, 
 who shall liave been named as parties in the said proceedings, 
 and against all such parties as were unknown, if notice of the 
 order to appear and answer shall have been given by such 
 publication or service of notice as is hereinbefore directed; 
 and against all other persons claiming from such parties, or 
 either of them, (e) Such conveyances shall also be a bar 
 against all persons having specific liens on any undivided 
 share or interest therein, who shall have been made parties to 
 the proceedings; but no creditor having any such specific lieu 
 
 («> Ibid, § 6317. 
 (6) Ibid, § 6318. 
 (c) Ibirl, § 6319. 
 ((?) Ibid, § 6320. 
 (e) Ibid, § 6321. 
 
PARTITION SUITS. SOl 
 
 Proceedings to Decree — Costs — Dis'ributionof Proceeds, etc. 
 
 shall be affected by such sale or conveyance, unless he shall 
 have been made a party to the proceedings, {g) 
 
 Costs. — The costs and expenses of the proceedings shall be 
 deducted from tiie proceeds of q,very sale made by the mas- 
 ter, and shall be by him, in the first instance, paid to the 
 complainants or their solicitor, (a) 
 
 Distribution of proceeds. — The proceeds of every sale, after 
 deducting the costs, shall be divided among the parties whose 
 rights and interests shall-have been sold, in proportion to their 
 respective rights in the premises; and the shares of such of 
 the said parties as are of full age, shall be paid to them or 
 their legal representatives by the master, or shall be brought 
 into court for their use. (J) 
 
 Shares of infants. — When any of such known parties are 
 infants, the court may, in its discretion, direct the shares of 
 such infant to be paid over to the general guardian, or to be 
 invested in permanent securities at interest, in the name and 
 for the benefit of such infant, {d) 
 
 Of unknown and absent owners. — ^here any of the par- 
 ties whose interests have been sold are absent from the State, 
 without legal representatives in this State, or are not known 
 or named in the proceedings, the court shall direct the shares 
 of such parties to'be invested in permanent securities at in- 
 terest, for the benefit of such parties, until claimed by them 
 or their legal representatives, (e) 
 
 Of tenants in dower or for life. — Where the proceeds of a 
 sale belonging to any tenant in dower or by the courtesy, or 
 for life, shall be brought into court as hereinbefore directed, 
 
 \ ~- 
 
 {a) Ibid, § 6322. 
 (6) Comp. L. 1871, § 6323. 
 (c) Ibid, § 6324. 
 (ri) Ibid, § 6.326. 
 («) Ibid, § 6327. 
 
502 PARTITION SUITS. 
 
 Proceedings to Decree — Security to Refund — Security, how Taken, etc. 
 
 the conrt shall direct the same to be invested in permanent 
 securities at interest, so that such interest shall annually be 
 paid to the parties entitled to such estate during their lives 
 respectively, ij') 
 
 Security to refwnd. — The court may, in its discretion, re- 
 quire all or any of the parties, before they shall receive any 
 share of the moneys arising from such sales, to fjive security 
 to the satisfaction of such court, to refund the said share with 
 interest thereon, in case it shall thereafter appear that such 
 party was not entitled thereto, {a) 
 
 8eGV/rity, how taken. — When any security is directed to be 
 taken by the court, or any investment to be made, or any se- 
 curity shall be taken by a master, on the sale of Any real es- 
 tate as hereinbefore directed, except where provisions shall be 
 made for taking the same in tiie name of any known owner, 
 the bonds, mortgages, or other evidences thereof shall be 
 taken in the name of the clerk of the court in whose office the 
 original bill was tiled, and his successors in office, who shall 
 hold the same by virtue of his office, and shall deliver thorn 
 to his successor. (5) 
 
 Money applied and invested. — Such clerk shall receive the 
 interest or principal of any sums as they become due, and ap- 
 ply or re-invest the same, according to the circumstances of 
 the case, as the court shall direct; and simll, once in every 
 year, render to the court an account in writing, and on oath, 
 of all moneys received by him, and of the application there- 
 of, (c) All investments, or re-investments, under the provis- 
 ions of this chapter, shall be made on bond and mortgage 
 upon unincumbered real estate, of at least double the value 
 of such investment, exclusive of buildings, or in other equiv- 
 alent security; and no such security, bond, mortgage, or oth- 
 
 (a) Ibid, § 6328. 
 
 (6) Comp. L. 1871, § 6328. 
 
 (c) Ibid, § 6329 
 
 [d) Ibid, § 6380. 
 
PARTITION SUITS. 503 
 
 Partition of Lands of Infants and Lunatics — Infants. 
 
 er evidence of such investment shall be discharged, trans- 
 ferred, or impaired, by any act of the clerk, vf Ithout the order 
 of the court entered in the minutes thereof, {d) 
 
 /Suits on securities. — Any person interested in such invest- 
 ment may, with the leave of the court, prosecute the same, in 
 the name of the existing clerk, and no suit shall be abated by 
 the death, removal from ofBce, or resignation of the clerk to 
 whom such securities or evidences were executed, or of any 
 of his successors, {e) 
 
 PARTITION OF LANDS OF INFANTS AND LUNATICS. 
 
 Of infants. — Whenever it shall appear satisfactory to the 
 court, by due proof, or on report of a master, that any infant 
 holds real estate in joint tenancy, or in common, or in any 
 other manner which would authorize his being made a pai'ty 
 to a suit in partition, and that the interest of such infant or 
 of any other person concerned therein, requires that partition 
 of such estate should be made, such court may direct and au- 
 thorize the general guardian of such infant to agree to a di- 
 vision thereof, or to a sale of such premises, or of such part 
 thereof as in the opinion of the court shall be incapable of 
 partition, or as shall be most for the interest of such infant, to 
 be sold, (a) Such guardian shall report to the court, on oath, 
 the partition or sale so made by him, and if the same be ap- 
 proved and confirmed by the court, an order shall be entered 
 authorizing such guardian to execute conveyances of the right 
 of such infant to such part of the said estate as shall have 
 been sold, to the purchaser thereof; or to execute releases of 
 the rights of such infant to such part of the said estate as in 
 the division falls to the shares of the other joint tenants, or 
 tenants in common. (5) Such deeds shall be as valid and 
 effectual to convey the share and interest of such infant, as if 
 
 (a) Ibid, §6331. 
 
 (b) Ibid, § 6332 
 
 (c) Comp. L, 1871, §6337. 
 {d) Ibid, § 6338. 
 
■M PARTITION SUITS. 
 
 Partition of Lands of Infants and Lunatics — Lunatics. 
 
 the same had been executed and duly acknowledged by such 
 infant after arriving at full age; and in case of the sale of any 
 part of such estate, the infant shall be deemed a ward of the 
 courf, and such order shall be taken as the court may direct, for 
 securing, investing, and applying the proceeds of the sale, and 
 for requiring security Irom the guardian for that purpose, (c) 
 Whenever such infant shall be a married woman, tlue court 
 may, upon petition, appoint her husband as her guard- 
 ian, and in case of the appointment of the husband the pro- 
 visions of the threelast preceding sections shall apply to such 
 husband. ((i) 
 
 Of lunatics. — Whenever it shall appear to the court, on the 
 application of tlie guardian of any idiot, lunatic, spendthrift, 
 or person mentally incapable of managing his affairs, holding 
 any estate in joint tenancy or in common, or in any other 
 manner, to authorize his being made a party to a suit in par- 
 tition, that the interest of such idot, lunatic, or other person 
 aforesaid, or of any of the parties interested in such estate, 
 requires a partition thereof, it shall be referred to a master in 
 chancery to inquire into and report upon the circumstances, (e) 
 Upon the coming in of the report, and a hearing and 6X7 
 amination of the matter, thecourt may authorize such guard- 
 ian to agree to a partition of such estate, and to execute re- 
 leases of the right of sucli idiot, lunatic or other person as 
 aforesaid, in and to the shares of such estate falling to the 
 other joint tenants, or tenants in common, (f) Such releases 
 shall be as valid and effectual to convey the share of such 
 idiot, lunatic or other person as aforesaid, as if the same had 
 been executed by them respectively when of sound mind and 
 understanding, and not subject to guardianship, and for a val- 
 uable consideration, {g) 
 
 (a) Ibid, § 6339. 
 
 (b) Ibid, § 6340. 
 
 (c) Ibid, § 6341. 
 ■ [d) Ibid, § 6342. 
 
 (e) Ibid, § 6343. 
 
PARTITION SUITS. 505 
 
 Hearing and Decree — Costs. 
 
 SECTION VI. 
 
 HEARING AND DECREE. 
 
 Hearing. — Upon the hearing of the cause, the court shall 
 ascertain from the proofs so taken, in case of the bill beilig 
 taken as confessed; or from the bill and answer, or pleadings 
 and proofs, if the defendants appear and answer, and sliall 
 declare the rights, titles and interests of the parties to such 
 proceedings, complainants as well as defendants, so far as the 
 same shall have appeared; and shall determine the rights of 
 the said parties in such lands, and shall decree that partition 
 be made between such of them as shall have any right there- 
 in, according to such rights, [a) If, upon the hearing of the 
 cause, the part or interest of any parties who shall not have 
 appeared and answered the bill, whether known or unknown, 
 in and to such premises, shall not have appeared by the proofs 
 in the cause, then the court shall decree that partition be 
 made, so far as the rights or interests of the parties who are 
 known, and who have appeared in the cause, liave been ascer- 
 tained, and the residue of the premises shall remain for the 
 parties whose interests have not been ascertained, subject to 
 division between them at any future time. (5) 
 
 Decree. — Whenever partition shall be decreed by any circuit 
 court, if it shall appear that it can not be made equal between 
 the parties, without prejudice to the rights and interests of 
 some of them, the court may decree compensation to be made 
 by one party to the other, for equality of partition, according 
 to the equity of the case, (c) 
 
 Costs. — When a decree confirming the partition made by 
 any commissioners, shall be entered as provided in this cliap- 
 
 (ff) Comp. L. 1871, § 6285; Shephard v. Elce, 38 Mich. 556; Hoffman v. 
 Beard, 22 Mich. 69. 
 (6) Comp. L. 1871, § 6286. 
 (c) ibid, § 6347. 
 
506 PARTITION SUITS. 
 
 Hearing and Decrees-Receiver — Appeal. 
 
 ter, the court shall also adjudge and decree that each of the 
 parties concerned therein, other than the complainants, pay- 
 to such complainants a proportion of the costs and charges of 
 the proceedings, to be ascertained by the court, according ]to 
 the respective rights of the parties, and the proportion of such 
 costs and charges assessed upon the unknown owners, to be 
 chargeable on the part remaining undivided; and upon such 
 decree, execution may issue as in other cases, and may be lev- 
 ied on the property of tiie parties respectively charged with 
 such costs, and upon any share or part of the premises 
 allotted on any sucli division to any owner unknown, or not 
 named, and upon every portion remaining undivided, for the 
 proportion adjudged to be paid by such owners, or chargeable 
 to the part remaining undivided, (a) A sale of the premises 
 of such owner unknown, upon such execution, shall be as 
 valid as if such owner had been named in 'the proceedings, 
 and in such execution (b) If a bill for partition shall be dis- 
 missed, or the suit shall be discontinued, the complainants 
 shall pay costs, to be collected as in other cases, (o) 
 
 Receiver. — Whenever it shall appear that it would be ben- 
 eficial to any part owner of the premises of which partition is 
 sought, that the same should be leased or protected from 
 waste, trespasses or injury, or for anj' other purpose, it shall 
 be competent for the court to appoint a receiver thereof, with 
 such authority as may be necessary in the premises. (<?) 
 
 Appeal. — Any of the parties to a suit for the partition or 
 sale of any premises under tiie provisions of this chapter, and 
 any party interested in the premises, though not named in 
 the proceedings, may, jointly or separately, and without tiie 
 consent of any co-coraplainant or co-defendant, appeal from 
 any decree or order of the said court, upon any such proceed- 
 
 (a) Comp. L. 1871, § 6833; Shephard v. Bice, 38 Mich. 556. 
 
 (6) Ibid, § 6334. 
 
 (c) Ibid, §631"). • 
 
 {d) Ibid, § 6352. See laws 1881, p. 278. 
 
PARTITION SUITS. 507 
 
 Hearing and Decree — Decisions. 
 
 ings, within the same time, and under the like regulations, as 
 in other cases, {a) 
 
 Decisions. — If heirs have attempted to partition among 
 tliemselves voluntarily, with tlie exception of one who files his 
 hill for partition, the court will respect and adhere to the vol- 
 untary partition, so far as it does not interfere with the rights 
 of the complainant, (i) And in case of voluntary partition 
 of land, any liens upon the undivided interest of either tenant 
 in common will, by analogy to a partition made under the 
 statute, be transferred as between the parties to that portion 
 of the premises by such partition set off to such tenant, and 
 such portion will become the primary security for such 
 lien, (c) 
 
 In estimating the complainant's share of the incumbrance 
 it is not necessary to notice particularly the other shares of 
 land held in fee, but as between the owners of the fee and of a 
 life estate in the same incumbered property, the life estate 
 should keep down tlie interest as its share of the incumbrance, 
 aiid the fee should be charged with the principal, (d) When 
 partition proceedings are directed against several distinct par- 
 cels of land, each is subject to partition by itself, (e) 
 
 A decree of partition can not be opened to change results 
 without setting aside the titles under it. Parties can not claim 
 under a decree of partition, and at the same time strive to 
 avoid or open it. (_/") The two positions are inconsistent. 
 Our Supreme Court has decided that our statute of partition, 
 having been adopted in substance from that of ISTew York, 
 the construction given it by the courts of that State at the 
 time of its adoption by our legislature, will be followed by 
 our courts, (g) 
 
 {a) Ibid, § 6336. 
 
 (6) Campau v. Campau, 19 Mich. 116. ' 
 
 (e) Webb v. Rone, 85 Mich. 58. 
 
 (d) Campbell v. Campbell, 21 Mich. 454, and cases there cited. 
 
 (e) Walshv. Varney, SSMich. 73. 
 (/) Walsh, \. Varney, 33 Mich. 73. 
 (g) Qreiner v. Klein, 23 Mich. 12. 
 
508 PARTITION SUITS. 
 
 Hearing and Decree — Decree for Partition. 
 
 A co-tenant is entitled to a decree in his favor for rent in 
 ari-ear, if his right thereto is clearly established, (a) And 
 where an incumbrance has been paid off bj one tenant in 
 common, he has a lien therefor, and his rights will be protect- 
 ed bj' the court. (5) 
 
 If a portion of the premises has been improved by a co- 
 tenant, that portion should be set off to him if practicable, 
 vpithout taking -into consideration the value of the improve- 
 ments, (c) 
 
 Wo. ISa. Decree for partition. 
 
 {Caption, and title of cause as in No. 105, ante, patje 210.) 
 This cause having come on to be heard upon the bill of 
 complaint herein, the answer of the dei'endants thereto, and 
 the replication of the complainant to such answer, and the re- 
 port of the circnit court commissioner, to whom this cause 
 was heretofore referred to take the proofs therein, which said 
 roi)ort is hereby approved and conlirined by the court; and 
 the court having heard the arguments of counsel for the 
 respective parties, and being fully advised in the premises, 
 doth find, that, etc. (Here insert the finding of the court, as 
 set out in the bill,); and that the allegations in the bill con- 
 tained are true; and that partition and division ought to be 
 made as therein prayed. 
 
 It is therefore ordei^ed, adjudged and decreed, by the conrt, 
 that the complainant, A B, and the defendant, D B, are each 
 entitled to one-half of the said premises, to wit {Here describe 
 the land): subject to the dower of the said C B, widow of the 
 said B B, deceased, in fee simple; and that a division and 
 partition of said premises be made; and that E F, Gr H and 
 L M, of etc., neither of whom appear to be connected with any 
 of the parties by consanguinity or affinity, and who are en- 
 tirely disinterested, be and they are hereby appointed com- 
 missioners to make partition of said premises; that each of 
 said commissioners take and subscribe an oath or affirmation, 
 as required by law, to honestly and impartially execute the 
 trust reposed in them, make partition of the said premises, ac- 
 cording to the rights and interests of the parties, as directed 
 by this conrt; and a true report make to the court, that the 
 
 («) Hatokins v. Saber, 47 111. 459. 
 (6) Tittsworth v. Stout, 49 111. 78. 
 (c) Dean v. O'Meara, 47 III. 120; see Kurlz v. Hibner, 55 Ill> 514. 
 
PARTITION SUITS. 509 
 
 Hearing and Decree — Report of Commissioners making Partitions, etc. 
 
 said commissioners shall go upon the premises, and if the 
 same are susceptible of division, they shall make partition 
 thereof,, allotting the several shares to the respective parties, 
 quality and quantity relatively considered, according to their 
 respective rights and interests as hereby adjudged, designat- 
 ing the respective shares by posts, stones and other permanent 
 monuments, and that if necessary they employ a surveyor 
 with necessary assistants, to aid therein; and if the premises 
 are not susceptible of division, without manifest prejudice to 
 the parties in interest, they shall value each piece or parcel 
 separately; and that they report their actings and doing8«-in 
 the premises, under their hands and seals, to the court, as 
 soon as practicable. 
 
 No. 187. Report of commissioners mahing partitions, etc. 
 
 State or MiCHiaAN. 
 
 The Circuit Court foi" the County of . In Chancery. 
 
 A B et al. 
 
 Complainants, 
 vs. 
 GT> et al. 
 
 Defendants. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 In pursuance of a decree rendered in the above entitled 
 cause, on, etc., we, the commissioners therein named, respect- 
 fully report to the court, that, after each of us having taken 
 and subscribed an oath {or affirmation), honestly and impar- 
 tially to execute the trust reposed in them, and make parti- 
 tion as directed by the court, which' said oath is hereto at- 
 tached for greater, certainty, we went upon the premises de 
 sci'ibed in said decree, to wit {Here describe the pre7nises,) *: 
 and made partition thereof, allotting the several shares to the 
 respective parties, quality and quantity relatively considered, 
 according to their respective rights and interests as declared 
 by the judgment of the court, in said decree, that is to say, 
 we set oif and allotted to A B in severalty, for his inter- 
 est and share of said premises, being the part thereof, 
 
 according to the relative value thereof, the following, to wit 
 {Here describe the part so allotted by metes, and bounds, or 
 other proper description) : and to the said C I), etc. {Here 
 set out the same as in the last, and so proceed with each 
 share.) 
 
 And we would further report, that we employed II S, a 
 surveyor, with necessary assistants to aid therein, in making 
 
510 PARTITION SUITS. 
 
 Hearing and Decree — Form of Oath, etc. 
 
 such partition, and that the items of the varions expenses 
 attending the execution of the said decree, including our fees, 
 are contained in a schedule hereto annexed, marked "A," and 
 forming a part of this our report. And that for the better 
 understanding and more clear elucidation of the shape and 
 situation of the said premises, and of the manner in which 
 such partition has been made by us, we have caused to be 
 made a map thereof, showing what parts, of the said premises 
 have been allotted to the respective parties ; which map forms 
 a part of this our report, and is hereto attached, marked "Ex- 
 hibit B." 
 
 All of which is respectfully submitted for the approval of 
 the conrt. 
 
 In witness whereof, we, the said commissioners, have set 
 
 our hands and seals to this our report, this day of , 
 
 in the year 18 — . B A. [l.s.' 
 
 D C. [L.s: 
 r E. [L.S.; 
 
 {Attach the oath^schedule A, and exhibit B.) 
 
 iVo. 188. Form of oath. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 ABetal. ] 
 
 Complainants, | 
 
 vs. y 
 
 CD et al. 
 
 Defendants. 
 State of Michigak, ) 
 
 County of . \ ' 
 
 I do solemnly swear that I will honestly and impartially 
 execute the trust reposed in me, and. make partition of t!ie 
 premises mentioned in the decree rendered by the court in 
 the above entitled cause, as directed by the court, so Iielp me 
 God. 
 
 Subscribed and sworn, &e. B A. 
 
 DC. 
 FE. 
 
 N'o. 189. Report of commissioners that the premises are not 
 susceptible of division. 
 
 {Proceed as in form. No. 187, to the asterisW', and then) 
 And upon examination thereof, we determined, and so re- 
 port to the court, that the said premises, and each piece or' 
 
PARTITION SUITS. 511 
 
 Hearing and Decree — Dscree Confirming Report of Commissioners. 
 
 parcel thereof, are not susceptible of division without mani- 
 fest prejudice to the parties in interest. 
 
 A-nd we would further report that the items of the various 
 
 expenses attending the execution of the said decree, including 
 
 our fees, are contained in a schedule hereto annexed, marked 
 
 "A," and forming a part of this our report. 
 
 All of which is respectfully submitted. 
 
 In witness whereof, we, the commissioners, have set our 
 
 hands and seals to this our report, this dav of , in 
 
 the year 188—. B A. [l.s.] 
 
 D C. [i,.s.] 
 r E. [L.S.] 
 {^Attach oath and schedule A.) 
 
 No. 190. Decree corvfirming report of commissioners. 
 
 {Oaftion and title of cause as in JVo. 105, ante, page 210.) 
 This day came B A, D C, and F E, commissioners, ap- 
 pointed by the court to make partition of the lands in a 
 former decree mentioned between the parties thereto, and 
 made report of their proceedings, and that they had made 
 partition as in and by said decree they were required; and the 
 court having examined the same, doth find that the said com- 
 missioners have, in every respect, proceeded according to law, 
 and the judgment of the court in said decree declared, and 
 honestly and impartially executed the trust reposed in them, 
 and that said partition was honestly and impartially made, 
 and no objections' or exceptions being made by any of the 
 parties herein thereto; and the court being fully advised in 
 tlie premises, doth order, adjudge and decree that the pro- 
 ceedings, partition and report of said commissioners be, and 
 the same are hereby approved and confirmed, and that the 
 said parties hold in severalty the shares set off and assigned 
 to each, respectively, by the said commissioners, and that tlie 
 title to the shares set otf and assigned by said commissioners 
 to each of said parties respectively, be, and the same is hereby 
 vested in the said parties, respectively, according to said 
 assignment. 
 
 And it is further ordered that the report of said commis- 
 sion be spread at large upon the records of this court. 
 
 And it is further ordered tiiat the costs and expenses of this 
 
 proceeding be paid within days by the parties, in the 
 
 •following proportions, to wit: That, etc., {Here set out the 
 <proportiorbs each party is required to pay); and that the same 
 be paid within days from, this date, and in default there- 
 of, that execution issue therefor. 
 
512 PARTITION SUITS. 
 
 Hearing and Decree — Decree for Sale of Premises. 
 
 It is held in Illinois, that on filing of the report of the com- 
 missioners inpartitiorl, either party may file exceptions there- 
 to, and the court will hear evidence in support and against 
 such report, and approve or disapprove of the same, as the 
 facts may justify. And inequality of value, as well as in- 
 equality in quantity, is held to be a good cause for setting 
 aside a report of commissioners; and, upon the hearing of 
 auch exceptions, the facts may be shown by aflidavit. {a) 
 
 N'o. 191. Decree/or sale of premises. 
 
 (Caption,a7id title of cause as vn No. 105 smte, page 210.) 
 
 This day came again by L M, their solicitor, and W A L, 
 appearing for the defendants, and the said B A, D C and F E, 
 commissioners, heretofore appointed herein by the court to 
 make partition of the premises hereinafter mentioned, made 
 report that the same are so circumstanced, that a division 
 thereof can not be made without manifest prejudice to the par- 
 ties interested; and the conrt having examined said report, 
 doth find that said commissioners have, in all respects, pro- 
 ceeded in accordance with the law and thfe terms of the decree 
 under which they were appointed; and the court being fully 
 advised in the premises, doth order, adjnds;e and decree that 
 tlie proceedings of said commissioners and their report be, 
 and the same are hereby approved and confirmed; and there- 
 upon, this cause coming on to be heard upon the report of 
 said commissioners, and the court having heard the argu- 
 ments of counsel, and being fully advised in the premises, 
 and on consideration thereof, doth order, adjudge and decree 
 that the said premises, to wit {Here describe the premAses): be 
 sold at public auction, at, etc., to the highest and best bidder, 
 provided the said bid upon each piece or parcel shall be equal 
 to at least two-thirds of the valuation put upon the same, as 
 shown by the report of the commissioners heretofore appointed 
 by the court to make partition thereof, which said sale shall 
 be made on the following terms {Here set out the terms of 
 sale): That S W O, a commissioner of this court be, and 
 he is hereby directed to make said sale, and to carry into ef- 
 fect this decree. The said commissioner will first give pub- 
 lic notice of such sale, and the time, place and terms thereof, 
 by {then insert the manner of advertising and publishing 
 notice of sale, which is the same as that required by law on 
 
 (a) Riggs v. Dickinson, 2 Scam. 438. 
 
PARTITION SUITS. 513 
 
 Hearing and Decree — Decree Confirming Sale in Partition. 
 
 sales of real estate on execution, ly sheriffs, and conclude 
 with such further directions as to the court seemsproper and 
 the statute requires.) 
 
 It has also been held in Illinois, that, upon the master's 
 making report of sale, exceptions may be taken, and if it ap- 
 pears that the requirements of the statute or decree of sale 
 have not been complied with, or any other sufficient ground 
 appears, the court will set the sale aside. And some proof, 
 independent of the assertion of the master or commissioner 
 making the sale, must be made that public notice was given 
 of a sale of land in partition, otherwise the sale will not be 
 confirmed, (a) This would seem to be the correct practice 
 under our statute. 
 
 No. 192. Decree confirming sale in partition. 
 
 {Caption, and title of cause as in No. 105, ante, page 210.) 
 
 This day came the circuit court commissioner, appointed by 
 a former decree of the court, herein, to make pale and to carry 
 into effect said former decree, and made report of his pro- 
 ceedings; and the court having examined the same, doth find 
 that the said commissioner has in every respect proceeded in 
 due form of law, and in accordance with the tei-rns of said de- 
 cree, and that said sale was fairly made; and the court being 
 fully advised in the premises, doth order, adjudge and decree 
 that the proceedings, sale and report of said commissioner be, 
 and the same are hereby approved and confirmed; and it is 
 further ordered that the said coniinissioner execute and deliver 
 to the said M, the purchaser at said sale, proper convey- 
 ances of the premises so sold; and that out of the proceeds of 
 said sale, he pay first the costs and charges of this proceeding, 
 and that the said commissioner distribute the residue of said 
 moneys between the said parties in the following proportions, 
 
 to wit: To the said A B, dollars: to D, dollars; 
 
 to, etc., etc. 
 
 (o) Tms V. Allen, 29 111. 535; see Dunning v. Dunning, 87 El. 306; 
 Comstock V. Purple, 49 111. 158. 
 
 33 
 
514 BILL TO PROBATE FOREIGN WILL. 
 
 When Allowed — Parties. 
 
 CHAPTER XXXL 
 
 BILL TO PEOBATE FOEEIGN WILL. 
 
 Section 1. WsBisf Allowed. 
 
 2. Parties. 
 
 3. Bill and Answbk 
 
 4. Commission to take Testimony 
 
 5. Decree and its Effect. 
 
 SECTION I. 
 
 WHEN ALLOWED. 
 
 Whenever it shall become necessary to make probate in 
 this State, of the last will of any deceased person, which was 
 executed in a foreign country, by the laws of which no pro- 
 bate of wills, after the deatli of the maker, is required or pro- 
 vided for, if the original will can not be produced in thig 
 Staite for probate, the same may be proved and allowed in this 
 State, by a full and complete copy thereof, in the circuit court 
 in chancery, in and for any county, in which the maker of 
 such will left any property, at his or her decease, affected by 
 such v/ill. (a) 
 
 SECTION II. 
 
 PAETIBS. 
 
 Any person interested in the proof and allowance of any 
 such foreign will, whether as executor, heir, devisee, legatee 
 or otherwise, may file in any such circuit court in chancery, a 
 bill or petition, for the probate of such will. (5) Ail proper 
 persons must be made parties to the suit. All persons inter- 
 la) Laws 1881, p. 85. 
 (6) Laws 1881, p. 85, 
 
BILL TO PROBATE FOREIGN WILL. 515 
 
 The Bill and Answer. 
 
 ested in the probate of the vill, must be joiaed either as com- 
 plainants or defendants, {a) 
 
 SECTION in. 
 
 THE BILL AND ANSWER. 
 
 The bill or petition mast set forth clearly, all the facts nec- 
 essary to give the court jurisdiction. The bill should state 
 the interest of the complainant, under the will souj^ht to be 
 probated; the decease of the testator; the time and manner 
 of the execution of the will; the fact that it was executed in a 
 foreign country, naming the same; that it was executed ac- 
 cording to the laws of such country; that, by the laws of such 
 country, no probate of wills, after the death of the maker, is 
 required or provided for; that the original will can not be 
 produced for probate in this State, and that the deceased left 
 property in the county where the bill is filed. 
 
 A copy of the will should beset forth in the bill of com- 
 plaint; and the bill should pray that an order be granted, di- 
 recting the will to be proved in a court of chancery, upon a 
 commission to be issued (or letters rogatory), directed to cer- 
 tain commissioners named therein, to take the testimony of 
 proper persons to prove said will. (5) . 
 
 N'o. 193. Bill to prolate a foreign will. 
 
 State oe Michiran. * 
 
 The Circuit Court for the County of -. In Chancerv. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Your orator, A B, of the township of in said county, 
 
 respectfully represents unto the court that he is of the age 
 of twenty-one years and upwards, and that he is the son of 
 C_ D, deceased, who lately departed this life at the township 
 
 of , county and State aforesaid, on the day of , 
 
 A. D. 18 — , at the age of — years. 
 
 Tour orator further represents that the said C D, de- 
 ceased, died leaving property in the said county of afore- 
 
 (a) Laws 1881, p. 85; Matter of Easton's Will, 6 Paige, 183. 
 {b) Lawb 1881, p. 85. • 
 
516 BILL TO PROBATE FOREIGN WILL. 
 
 Bill and Answer. 
 
 SEid, whicli saidr property consisted of {Here describe the prop- 
 erty) and was of the value of dollars, as near as your 
 
 orator can estimate the same, {a) 
 
 Your orator further represents that the only heir-at-law 
 and legatee of said C D, deceased, at present living, is E F, 
 the brother of your orator, who resides at the township of 
 
 , county of , and State aforesaid. And your orator 
 
 shows that by ,the terras, of the will of said C D, deceased, 
 as hereinafter fully set forth, the said C D, left all of his 
 property, both real and personal and of every name and na- 
 ture, to your orator and his said brother E F. 
 
 Your orator further represents -that the said C D, deceased, 
 
 died leaving a willlexecuted upon tlie day of , A. L). 
 
 18 , which said will was executed in the city of- in 
 
 , said being a foreign country. 
 
 Your oi-ator further represents, that the said will of said C 
 D, deceased, so executed in said foreign country aforesaid, was 
 fully executed in accordance with tlie laws of said foreign 
 country, and in each and every particular thereto. Your 
 orator further shows, that by tlie law.s of said foreign couiitiy 
 no probate of wills, after t'.u death of the maker, is required 
 or provided for. 
 
 Your orator represents unto tlie court, that the original will 
 of said C D, deceased, so executed as aforesaid, can not be pi-u- 
 duced in this State for probate, for the following reasons: 
 {Here insert stich reasons as may exist why it can not lie 
 done.) 
 
 Your orator furtherj-epresents to the court, that the prop- 
 erty of said C D, deceased, hereinbefore set fortli and de- 
 scribed, and which is located in this said county, and was 
 
 at the time of the decease of said C D, is affected by the terms 
 of said will, the same being distributed in certain proportions, 
 as will hereinafter appear to your orator and his said brother, 
 said E F. 
 
 Your orator further represents unto the court, that thewi 1 
 herein mentioned of said C D, deceased, is in words and lig- 
 ures, as follows, that is to say : {Here insert copy of the will, 
 if the same can he done, and if it can not he done, state fully 
 the reason %ohy.') 
 
 Your orator further shows unto the court, that, as appears 
 by the copy of said will as aforesaid, your orator is named as 
 executor of said will, and that the only persons interested, in 
 
 (a) It would not seem to be essential that the property should be worth 
 over one hundred dollars, in this class of cases, in order to give the court 
 jurisdiction. 0. W. P. 
 
BILL TO PROBATE FOREIGN WILL. 617 
 
 Bill and Answer — Defense. 
 
 any manner, in the proof or allowance of said will, are your 
 orator and liis said brother, E F. 
 
 Yonr orater further represents, that the said E F sometimes 
 claims and pretends that the said C D, deceased, left no last 
 will and testament; and at other times claims and insists that 
 the foregoing copy of the last will and testament of said C D, 
 deceased, is not a copy of any will left b_v said G D, or 
 executed by him in his life-time, and the said E F therefore 
 refuses to join with your orator in prayingprobate of said will. 
 Wherens, in truth and in fact, the contrary is true, and the 
 said C D, deceased, did leave a last will and testament, a true 
 and correct copy of which is hereinbefore fnlly set forth. 
 
 All which actings, doings a!id pretenses of the said defend- 
 ant, E F, are contrary to equity and good conscience, and tend 
 to the manifest wrong, injury and oppression of your orator 
 in the premises. In consideration whereof, and forasmuch as 
 your orator is entirely remediless in the premises, according to 
 the strict rules of the common law, andean only have relief in 
 a court of equity, where ma,tters of this nature are properly 
 cognizable and relievable. To the end, therefore, that the said 
 C D may, without oath (his answer on oath being hereby 
 waived), full, true and perfect answer make to this your ora- 
 tor's bill of complaint, and that a commission, or letters roga- 
 tory, may be issued out of and under the seal of this court, 
 directed to certain persons therein to be named, and autbor- 
 iziuLT them and each of them to take rhe testimony o^iHere 
 insert the names and residences of witnesses whose testimony 
 is required to establish the toill), and that this honorable court 
 may admit said will to probate, or so much as may be valid 
 in this State; and that your orator may have suchotlier relief 
 and such further relief as shall be agreeable to equity and good, 
 conscience. 
 
 May it please the court (Add jprayer for jprocesi). 
 
 E F. 
 D. Bondeman, 
 
 Solicitor and of counsel for complainant. 
 
 The proceedings, issuing process, etc., to bring the defend- 
 ant before the court, are the same in this class of cases as 
 are provided for in the court of chancery in other causes, (a) 
 
 Defense. — The defendant may plead answer or demur as in 
 
 (a) Laws 1881, H 85. 
 
518 BILL TO PROBATE FOREIGN WILL. 
 
 ' Comijiission to Take Testimony. 
 
 other cases iu chancery. Under the statute which we are 
 now considering, all the proceedings, unless otherwise pro- 
 vided, must conform to the rules and practice of the circuit 
 court in chHncery. The proceeding is piirelj' statutory, and 
 all the provisions of the statute must be closely and carefully 
 followed. 
 
 SECTION IV. 
 
 COMMISSION TO TAKE TESTIMONY. 
 
 The court has full power, by means of commissions or let- 
 ters rO;;atory, to take the testimony of any officer, magistrate, 
 or other persons having custody or possession of the original 
 will, of the witnesses thereto, and of any other person whose 
 testimony is required. 
 
 Upon the appearance of the defendant being entered in 
 the cause, the complainant may serve upon him a notice of a 
 special motion, for an order from the court granting a com- 
 mission or letters rogatory, in conformity with the prayer of 
 the bill. The commission should be in the usual form for 
 examining witnesses residing out of the State, and it should be 
 executed in like manner. The same proceedings as are required 
 by the rules in other cases, should be had in settling interro- 
 gatories, (ffl) and if the defendant appears in the case he can join 
 in the commission. 
 
 If the defendant does not appear and the bill is taken as 
 Confessed, then it would seem that the complainant would 
 be entitled to an order of course, granting a commission or 
 letters rogatory. 
 
 If the defendant appears, he should have, it is said, reason- 
 able notice of the time and place of executing the commis- 
 sion, (b) 
 
 The general law of the foreign country where the will was 
 executed, concerning the execution and probate of will, should 
 be proven, as well as all the other requirements, of the stat-' 
 ute. (c) 
 
 (a) Ante, pp. 178, 179, 180, 181, 182. 
 (6) Matter of Atkinson, 2 Paige, 214. 
 (c) Matter of Roberts' Will, 8 Paige, 446. 
 
BILL TO PROBATE FOREIGN WILL. 519 
 
 Decree and its Effect — Effect of Probate, etc. 
 
 SECTION V. 
 
 DECEBE AND ITS EFFECT. 
 
 If, upon the proofs of the case, a full and complete copy of 
 the will sought to be probated is shown, and it shall suffi- 
 ciently appear that the alleged will is valid, and sufficient to 
 pass any of the property, real or personal, of the maker with- 
 in this State, that said will was executed in a foreign country, 
 that the maker is dead, and that the original will is retained, 
 and can not be produced in this State for probate, and that 
 the laws of said foreign country do not require or provide for 
 the probate of said will after the death of the maker, it shall 
 then be lawful for the court to admit such will to probate, or 
 so much thereof as it shall find to be valid in this State, (a) 
 
 Effect of probate. — Such allowance and probate shall have 
 the same effect as if the same had been made in any probate 
 court of this State, of lawful jurisdiction, upon production 
 and proof of the original will, (h) 
 
 Transcript to he filed in prolate court. — Any probate 
 made as aforesaid, with a transcript of the will, proven and 
 allowed, shall be certified to and filed with the probate court of 
 the county in which probate has been made, and therefrom said 
 probate court shall have the same power and jurisdiction, in 
 respect to the estate of the deceased, as if said will had been 
 proven and allowed in said probate court, (c) 
 
 Appeal. — An appeal to the Supreme Court, may be taken 
 as in other cases, {d) 
 
 [a] Laws 1881, p. 85. 
 (S) Laws 1881, p. 85. 
 
 (c) Laws 1881, p. 85. 
 
 (d) Laws 1881, p. 85. 
 
520 BILLS FOR DIVORCE. 
 
 Nature of. 
 
 CITAPTEE XXXII. 
 
 BILLS FOE DIVOECE. 
 
 Section 1. 
 
 Natuee op. 
 
 2. 
 
 Cause foe Divokce. 
 
 3. 
 
 JUKISDICTION OF, AND WhERB COMMENCED, 
 
 4. 
 
 Bill, fkame of. 
 
 5. 
 
 Natubal Impotency. 
 
 6. 
 
 Adultery. 
 
 7. 
 
 Conviction of Crime. 
 
 8. 
 
 Desertion for two years. 
 
 9. 
 
 Habitual Drunkenness. 
 
 10. 
 
 Exthkmb Cruelty. 
 
 11. 
 
 Failure to Support. 
 
 12; 
 
 Divorces granted in another State. 
 
 13. 
 
 Suit to annul Marriage. 
 
 14. 
 
 Suit to affirm Marriage. 
 
 15. 
 
 Void Marriages. 
 
 16. 
 
 Reference to take Proof. 
 
 17. 
 
 Injunctions in. 
 
 18. 
 
 Defenses. 
 
 19. 
 
 Hearing and Decree. 
 
 20. 
 
 Alimony. 
 
 
 SECTION I. 
 
 NATUEE OF. 
 
 A divorce is the dissolution of a marriage contracted be- 
 tween a man and a woman, by the judgment of a court oi 
 competent jurisdiction, or by an act of the legislature. It is 
 so called from the diversity of the minds of those who are 
 married, because such as are divorced go each a different way 
 from the other, {a) Until a decree of divorce be actually 
 made, neither party can treat the other as sole, even in cases 
 where the marriage is utterly null and void for some pre- 
 
 (o) Redly's Civ. and Eccl. L. pp. 11, 112; Bouv. L. D. 439. 
 
BILLS FOE DIVORCE. 521 
 
 Nature of. 
 
 existing cause, {a) A decree of divorce mnst also be made 
 during the life-time of both the parties. After the decease of 
 either the marriage will be deemed legal in all respects. (5) 
 
 Divorces are of two kinds: Ifirst, & vinculo matriTnonii — • 
 a total severance of the marriage tie; and second, dmensa et 
 thoro — " from bed and board,"— which merely separates the 
 parties. 
 
 Tlie divorce & vinculo matrimonii was never granted by 
 the ecclesiastical law, except for the most grave reasons. 
 These, according to Lork Coke, are causa procontractus, causa 
 inetus, causa impotentiw seu fridigitatis, causa affinitatis, et 
 codisa consanguinitatis — on account of precontract, fear, im- 
 potence or frigidity, affinity or consanguinity. ) In En- 
 gland, such a divorce bastardizes the issue, and, generally 
 speaking, is allowed only on the ground of some pre-existing 
 cause; id) but sometimes by an act of parliament for a super- 
 venient cause, [e) When the marriage was dissolved for ca- 
 nonical causes of impediment, existing previous to its taking 
 place, it was declared void ab initio. 
 
 ■ In some of the States of the union divorces d vinculo are 
 granted by the State legislatures for such causes as may be 
 sufficient to induce the members to vote in favor of granting 
 them; and they are granted by the courts to which such ju- 
 risdiction is given, for certain causes particularly provided for 
 by law. In some States the legislature never grants a di- 
 vorce until after the courts have decreed one. This is still 
 the case in Mississippi. In Wisconsin the constitution pro- 
 hibits the legislature from granting divorces. In Michigan 
 the legislature can not grant a divorce. 
 
 (a) 3 Penn. Law Journal, 151, 153. 
 
 (V) Reeves, Dom. ReL 204; 1 Black. Com. 440; Bouv. L. D. 439, 440. 
 
 (c) Co. Litt. 235, a. 
 
 (d) Reeves, Dom. Rel. 204-205. 
 
 {^) 1 Black. Com. 440; Bouv. L. D. 440. 
 
 (/) Tefty. Te/i, 3 Mich. 67; Const Art. IV, §26. 
 
522 BILLS FOR DIVORCE. 
 
 Causes for Divorce. 
 
 SECTION II. 
 
 CAUSES FOE DITOEOB. 
 
 The statutes of the different States vary as to the causes of 
 divorce. 
 
 In Michigan the statute provides (a) that a divorce may be 
 decreed by the court of chancery on application by bill or pe- 
 tition, by the aggrieved party, in either of the following cases: 
 
 F^st. — Whenever adultery has been committed by any 
 husband or wife. 
 
 Secoiid. — When one of the parties was physically incompe- 
 tent at the time of the marriage. 
 
 Third. — When one of the parties has been sentenced to any 
 prison, jail, or house of correction for three years or more, 
 and no pardon granted to the party so sentenced after a divorce 
 for that cause, shall restore such party to his or her conjugal 
 rights. 
 
 Fourth. — When either party shall desert the other for a 
 term of two years. 
 
 Fifth. — When the husband or wife shall have become an 
 habitual drunkard. 
 
 Simth. — And the circuit courts may, in their discretion, 
 upon application as in otlier cases, divorce from the bonds of 
 matrimony, any party who is a resident of this State, and 
 whose husband or wife shall have obtained a divorce in any 
 other State. 
 
 Seventh.— K divorce from bed and board forever, or for a 
 limited time, maybe decreed for the cause of extreme cruelty, 
 whether practiced by using personal violence or by any other 
 means, or for utter desertion by either of tlie parties for the 
 term of two years; and a like divorce may be decreed on the 
 complaint of the wife, when the husband being of sufiicient 
 ability to provide a suitable maintenance for her, shall grossly 
 or wantonly and cruelly refuse or neglect so to do. (5) 
 
 («)Comp. L.1871, §4788. 
 (&) Comp. L. 1871, §4739. 
 
BILLS FOR DIVORCE. 523 
 
 Jurisdiction of, and where Commenced. 
 
 Eighth. — A divorce from the bond of matrimony may be 
 decreed for either of tlie causes mentioned in the preceding 
 section, whenever in the opinion of the court the circum- 
 stances of the case shall be such that it will be discreet and 
 proper so to do. [a) 
 
 SECTION III. 
 
 JUEISDIOTION OF, AND WHERE COMMENOEI 
 
 The suit must be commenced in the circuit court of the 
 county where the parties or one of them reside, {h) But no 
 divorce can be granted unless the complainant shall have re- 
 sided in the State one year immediately preceding the time 
 of exhibiting the bill; or unles.s the parties were married in 
 this State, and the complainant has been a resident of the 
 State from the time of marriage to the time of exhibiting the 
 bill of complaint, (e) The subject-matter of a suit of this 
 character being the marriage, if the parties have no domicile 
 in the State, a divorce which its courts assume to grant, 
 whether deceived or not as to residence, is absolutely nuga- 
 tory-, {d) 
 
 But where the parties reside in different States, each State 
 has authority in respect to the marriage relation. And if one 
 party proceeds in one State for divorce, it is no legal bar id 
 like proceedings by the other party in the other State. Espe- 
 cially when such a course is necessary to protect property 
 rights, (e) The recitals in the record of a divorce case, that 
 the parties are residents of the State in which, the divorce is 
 j);ranted, do not, when the divorce comes collaterally in ques- 
 tion in another State, preclude the showing that the first men- 
 tioned State never had jurisdiction to grant the divorce, and 
 that the suit was fraudulent and collusive. 
 
 (n)Comp. L. 1871, §4740. 
 
 (I) Comp. L. 1871, §§ 4738, 5058; Amended Laws 1873, p. 31. 
 
 (c) Comp. L. 1871, § 4741. 
 
 (d) People V. Dawell, 25 Mioh. 247. 
 {e) Wright v. Wright, 2± Mich. 181 
 
524 BILLS FOR DIVORCE. 
 
 Parties to — Bill, Frame of. 
 
 SECTION IV. 
 
 PAETIES TO. 
 
 The 'bill may be exhibited in the name of the wife, when she 
 is complainant, as well as in tiie name of the husband when 
 he is the complainant, {a) Under our practice, the only par- 
 ties to a divorce suitare the hnsband and wife. When insanity 
 or idiocy is alleged as a i-eason to annul a marriage, the suit 
 is prosecuted by any person admitted by the court to prose- 
 cute as the next friend of such idiot or lunatic. (5) A suit to 
 annul marriage for physical incompetency at the time of the 
 marriage, can only be maintained by the injured party,, and 
 against tlie person who is claimed to be physically incompe- 
 tent, (c) And in sucli case, tlie suit must be brought within 
 two years from tlie date of tlie marriage, {d) The statute also 
 provides, that a lunatic, after his reason is restored, may bring 
 suit to dissolve a marriage becween himself and wife; {e) and 
 it also provides, that a bill to annul a marriage upon the 
 ground that one of the parties was under the age of legal con- 
 sent, may be exhibited by the parent or guardian entitled to 
 the custody of the minor. The party who was of the age of 
 legal consent when the marriage ceremony was performed 
 can not make the application, (j) 
 
 SECTION V. 
 
 BILL, FEAMB OF. 
 
 The general principles, applicable to a bill in chancery ap- 
 ply to bills for divorce, {g) It will not be necessary, there- 
 fore, to enter largely into the discussion of this subject. 
 
 {a) Comp. L. 1871, §4743. 
 (6) Comp. L. 1871, § 4766. 
 (c) Comp. L. 1871, § 4771. 
 (rf) Ibid, § 4771. 
 {e) Comp. L. 1871 § 4768. 
 (/) Comp. L. 1871, §4766. 
 (g) See Chap. III. 
 
BILLS FOR DIVORCE. 525 
 
 Natural Impotency at time of Marriage. 
 
 All divorce bills must be verified, (a) All amendments to 
 divorce bills must be verified, and tlie whole bill is required 
 to be re-sworn to. {i) Bnt the answer is not required to be un- 
 der oath, (o) The complainant must aver residence in the 
 State, one year immediately preceding the filing of the bill, 
 or that the marriage was solemnized in this State and that 
 complainant has been a resident from the time of the marriage 
 to the timeof tiliTig the bill, {d) 
 
 The rules provide, (d) that in all bills filed for divorce up- 
 on the ground of adultery, the complainant must positively 
 aver tiiat the adultery charged in the bill was committed 
 without the consent, connivance, privity or procurement of 
 the complainant; 'and that the complainant has not volunta- 
 rily cohabited with the defendant since the discovery of such 
 adultery. And in all such bills, and in all bills for divorce 
 upon any ground, 'the complainant shall also positively aver 
 that the act done or cause charged in the bill for which di- 
 vorce is sought, was committed without the consent, conni- 
 vance, privity or procurement of the complainant, and that 
 such bill is not founded on or exhibited in consequence of any 
 collusion, agreement or understanding whatever between the 
 parties thereto,or between the complainant and any other person 
 
 We siiall consider the several grounds for divorce in Mich- 
 igan, separately, under various sections, and will then speak 
 more particularly of the essentials of a bill. 
 
 SECTION VI. 
 
 NATUEAL IMPOTENCT AT TIME OF MARRIAGE. 
 
 We have seen that among the grounds of divorce enumera- 
 ted by tlie statute, is that one of the parties was physically 
 incompetent at the time of the marriage, [f) 
 
 (a) Chancery Rule 95; see ante, p. 36. 
 
 (f>) Briggs v. Briggs, 20 Mich. 34; Green v. Green, 26 Mich. 437. 
 
 (.■) Comp.L. 1871, §4743. 
 
 (d) Comp. L. 1871, § 4741. 
 
 (c). Chancery Rule 95. 
 
 (/) Comp. L. 1871, § 4771. 
 
526 BILLS FOR DIVORCE. 
 
 Natviral Impotency at tims of Marriage.' 
 
 It has always been deemed requisite to the entire validity 
 of every marriage, not only that the parties should be of dif- 
 ferent sex, but that they shall be essentially complete in their 
 several organizations and capabilities. "As the first cause 
 and reason of matrimony," says Ayliffe, " ought to be the 
 design of having oifspring; so the second ought to be the 
 avoiding of fornication." (a) And the law recognizes these 
 two " as the principal ends of matrimony," namely, " a law- 
 ful indulgence of the passions to prevent licentiousness, and 
 the procreation of children, according to the evident design of 
 Divine Providence, (i) 
 
 "When one knowingly marries another who is past the age 
 of procreation, he can not complain on the ground of unfruit- 
 fulness. (c) If the party married be within that age, and 
 have the power of copulation, there is, ordinarily, no means 
 of certainly determining that at the time ®f the marriage an 
 incurable sterility existed. Indeed, medical writers have sta- 
 ted without qualification, that there is no such means, (d) 
 which is probably true, wherever there is no discoverable mal- 
 formation. In all the reported cases, therefore, the principal 
 inquiry has been as to the ability to copulate, and when, from 
 any cause which is irremediable, there is an inability, the ob- 
 ject of the marriage is frustrated, (e) 
 
 Every marriage contract implies a capacity in the parties 
 of consummation, (y) When a person, knowing his own de- 
 fect, induces another, who is ignorant of it, to marry him, he 
 commits a gross fraud and a grievous injury; (g) and when 
 he is himself ignorant of it, there is equally a violation of the 
 contract, and an equal injury, though there be no intentional 
 wrong. In' the former ease, the marriage would be clearly 
 voidable on the single ground of fraud, if the principles which 
 
 [a) Ayl. Parer. 360. 
 
 (6) 1 Robert, 279; 3 PhiU. 325, 1 Eng. Eccl. R.408, 409. 
 
 (c) Brown v. Brown, 1 Hagg, 523, 3 Eng. Eccl. R. 229. 
 
 {d) Guy's Forensic Med. Amer. Ed. 51. 
 
 {«) Bishop on Mar. & Div. § 226. 
 
 (/) Chitty'sMed. Juris. 378; Poynteron Mar. &Div. 123. 
 
 {g) Briggs v. Morgan, 3 Phill. 325; 1 Eng. Eccl. R. 408, 410. 
 
BILLS FOR DIVORCE. 527 
 
 Natural Impotency at time of Marriage. 
 
 govern ordinary contracts, were to be applied to it; and, in 
 the latter case, it would seem to be equally so on the ground 
 of mistake, and the violation of tlie implied warranty, (a) 
 But owing to the peculiar nature of the contract of marriage, 
 this infirmity, though sometimes treated as a pure fraud, (5) 
 is, according to better opinions, regarded in a somewhat dif- 
 ferent aspect, (c) 
 
 This matrimonial impediment is termed impotence, or 
 impotency. It may be difficult to give to it a perfectly ac- 
 curate and unexceptional definition; in Mr. Shelford's work, 
 it is said to " consist in the incapacity for copulation, or in 
 the impossibility of accomplishing the act of procreation." (li) 
 Frazer, in his work on Domestic Relations, defines it as the 
 "incapacity of either spouse for the act of copulation, or as 
 some think, the want of power to procreate children." {e) Web- 
 ster has it, "inability to beget." While Bishop defines it as 
 " such an incurable incapacity that the party can neither cop- 
 ulate nor procreate. {/) 
 
 Impotence to be a ground for a divorce, must exist at the 
 time of marriage; (ci) and it must be incurable. (A) And 
 the burden of proof is on the complainant to establish that 
 it existed at the time of the marriage, and that it is incur- 
 able. {*) 
 
 The sentence of divorde on the ground of impotency de- 
 clares the marriage void from the beginning, {j) 
 
 [a) Hishdpon Mar. &Div. §§ 99, 100, 117, 227; Rutherford's Inst. 1 Ch. 
 15, § 9; Rogers' Eccl. Law, 640. 
 
 (6) Benton v. Benton, 1 Day, 111; Guilford v. Guilford, 9 Conn. 321, 327. 
 
 (c) Burtis V. Burtis, 1 Hopk. Ch. R. 557; Perry v. Perry, 2 Paige, Ch. 
 R. 501; Bishop on Mto. & Div. § 227. 
 
 (d)Shelford on Mar. & Div. 202. 
 
 (e) Frazer on Dom. Rel. 53. 
 
 ( f) Bishop on Mar. & Div. § 228. 
 
 {^Bishop on Mar. & Div. § 235; Bascomhv. Bascomb, 5 Foster, 267. 
 
 (^Ferris v. Ferris, 8 Conn. 166; 2 Atkin. 188; /. G. v. //. G. 33 Md. 
 401. 
 
 [i] Newell v. Newell, 9 Paige, Ch. R. 25; Devanhagh v. Demnhagh, 5 
 Paige, Ch. R. 554; Welde v. Welde, 2 L3e, 530; Bishop on Mar. & Div. 
 § 2.35. 
 
 U) Bishop on Mar. & Div. §§ 46, 53, 59, 226, 227, 235, 261. 
 
528 BILLS FOR DIVORCE. 
 
 Natural Impotency at time of Marriage — Divorce on Ground of Impotency. 
 
 On a bill by the Imsband for the wife's impotency, it was 
 held, that the wife will be compelled to submit to a surgi- 
 cal examination; but if she has already submitted to an ex- 
 amination by competent surgeons, whose testimony can be 
 readily obtained, she will be excused from fui'ther examin- 
 ation, ['i) 
 
 A motion for an order to compel the defendant to submit 
 to an examination is addressed to the discretion of the chan- 
 cellor, and his ruling is held not to be appealable. (5) 
 
 Where there is reason to believe thattlie incapacity can be 
 removed by a slight surgical operation, tlie court will not an- 
 nul the marriage. Bat the court has no power to compel a 
 wife to submit to such operation; and her refusal to do so 
 furnishes no ground to annul the marriage, (c) 
 
 ]Vo. 194. Bill for divorce on the ground of impotency. 
 
 State OF Michigan. 
 
 The Circuit Court for the County of . In chancery. 
 
 To the Circuit Court for the County of . In chancery. 
 
 Your orator, A B, of, etc., respectlully represents unto this 
 lionorable court, that on, etc., your orator intermarried witli 
 one C D, now C B, at, etc., and that your orator is now, and 
 has been a resident of this State, for over one whole year next 
 before the filing of this bill. 
 
 Your oi'ator further represents, that immediately after the 
 said marriage took place, your orator discovered that the said 
 B, at the time of her intermarriage with your orator as 
 aforesaid, was, and has continued to be naturally impotent, 
 and physically incapable of entering into the marriage state; 
 tliat, etc. [Here state the particular character of the impo- 
 tency), so that the said marriage could not be consummated 
 by the sexual intercourse of the parties. 
 
 And your orator further represents, that as he is informed 
 and believes, and so charges the fact to be, that the said impo- 
 tency and pliA'sical incapacity of the said C B, still exists and 
 is incurable. 
 
 [a] Devanhagh v. Devanbagh, 5 Page, Ch. R. 554; see Newell v. Newell, 
 9 Paige, Ch. R. 25. 
 (6) Anon, 85 Ala. 326; see Le Barron v. Le Barron, 35 Vt. 365. 
 (c) Devanbagh v. Devanbagh, 6 Paig;, Ch. 175. 
 
BILLS FOR DIVORCE. 529 
 
 Natural Impotency at tims of Marriage — Divorce on Ground of Impotency. 
 
 And yonr orator positively avers tlmt the acts done, and 
 cause of divorce charged in tin's bill of complaint, for which 
 divorce is songht, were committed without the consent, con- 
 nivance, privity or procurement of your orator, and that such 
 bill is not founded on, or exhibited in consequence of any col- 
 usion, agreement, or understanding whatever, between the 
 parties thereto, or between yonr orator and any other person. 
 
 In consideration .wliereof, and to the end, therefore, that 
 the said C B, the defendant hereinbefore named, if she can 
 show why your orator should not have the relief hereby 
 prayed, may, without oath (her answer on oath being hereby 
 expressly waived), and according to the best and utmost of 
 her several and respective knowledge, remembrance, informa- 
 tion and belief, full, true, direct and perfect answer make, to 
 all and singular, the matters hereinbefore stated and charged, 
 as fully and particularly, sentence by sentence, and paragraph 
 by paragraph, as if the same were here again repeated, and 
 he thereto particularly interrogated, and that the marriage 
 between your orator and the said C B, may be dissolved, and 
 a divorce from the bonds of matrimony decreed, according to 
 the statute in such case made and provided, and that yonr 
 orator may have such other relief, and such further relief, in 
 the premises, as shall be agreeable to equity and good con- 
 science. 
 
 May it please the court, the premises being considered, to 
 grant unto your orator the most gracious writ of subpoena, of 
 the people of the State of Michigan, to be issued out of and 
 under the seal of this honorable court, to be directed to the 
 said C B, therein and thereby commanding her on a certain 
 day, and under a certain penalty, to be therein inserted, per- 
 sonally to be and appear before this honorable court, then and 
 there to answer all and singular the said premises, and to 
 stand to, and abide and perform such order and decree there- 
 in, as shall be agreeable to equity and good conscience. And 
 your orator will ever prav, etc. 
 
 AB. 
 
 J L H, 
 Solicitor for complainant, and of counsel. 
 
 State of Michigan, ) 
 
 County of . \ ^^• 
 
 On this day of , A. D. 18 — , before me, personally 
 
 came the above named A B, and made oath that he has heard 
 read the foregoing bill of complaint by him subscribed, and 
 knows the contents thereof, and that the same is true of his 
 
 34 
 
530. BILLS FOR DIVORCE. 
 
 Adultery — Circumstantial Evidence. 
 
 own knowledge, except as to the matters which are therein 
 stated to be on his information or belief, and as to tiiose mat- 
 ters he believes it to be true. 
 
 TKS. 
 Notary Public, County, Mich. 
 
 SECTION VII. 
 
 ADUIiTEEY. 
 
 The statute, as we have already seen, provides that a di- 
 vorce may be granted where either party has committed 
 adultery subsequently to the marriage. A similar provision 
 is in the statutes of almost every State of the Union. 
 
 A suit for a divorce, on the ground of adultery, will be 
 burred by proof of a like offense by the complaining party, 
 though committed even during the pendency of the suit, [a) 
 
 Adultery, to be the foundation for a divorce, must be vol- 
 untary. If a wife be compelled by force, or ravishment, or 
 has carnal knowledge of a man not her husband, througli error 
 or mistake, she believing him to be her husband, (5) or while 
 she is insane, (c) or by her husband's procurement, (J) or 
 marry another man through a belief that her former husband 
 is dead, and during the continuance of such belief lives in 
 matrimonial intercourse with him, (e) a divorce will not be 
 granted. 
 
 Circumstantial evidence. —AdnUery being peculiarly a 
 
 (a) Davis v. Davis, 19 111. 3'i4; Christianherry v. Christianberri/, 3 
 Blackf. 203; Mattox v. Mattox, 2 Ham. 233; Lesseuer v. Lesseuer, 31 Barb. 
 N. T. 330; Clapp v. Clapp, 97 Mass. 531; Ribet v. B^bet, 39 Ala. 348. 
 
 (6) Ayl. Barer. 226; I'razer oil Dom. Rel. 81, 667; Bishop on Mar. & Div. 
 §§ 204, 418. 
 
 (c) Broadstreet v. Broadstreet, 7 Mass. 474; Matchin v. Matchin, 6Barr, 
 332; Nichols V. Nichols, 31 Vt. 323; see Wra>/ v. Wrat/, 19 Ala. 522; 
 Wrai/ f. TT/ 01/, 33 Ala. 187. 
 
 id) Pierce v. Pierce, 3 Pick. 299; Myers v. Myers, 41 Barb. N. T. 114; 
 Henden v. Henden, 6 C. E. Greene, 61. 
 
 (e) Valean-v. Valeau, 6 Paige, Ch. 207; Bishop on Mar. & Div. § 418. 
 
BILLS FOR DIVORCE. 531 
 
 Adultery — Circumstantial Evidence. 
 
 crime of darkness and secrecy, may be, and ordinarily mnst 
 be, establislied by circumstantial evidence, (ti) 
 
 To prove adultery by circumstantial evidence, two points 
 are to be ascertained and established — the opportunity for the 
 crime, and the will to commit it. Where both of these are 
 established, the court will infer guilt. (/■) 
 
 The pariiceps crimlnis is a competent witness for the com- 
 plainant; (o) but a court will seldom grant a divorce on such 
 testimony unless corroborated, (d) 
 
 It is not sufficient to convict parties who may be supposed 
 willing to commit adultery, to prove that they were in a posi- 
 tion where it was possible to commit it. It must be shown 
 that they were together under suspicious circumstances, which 
 can not be easily accounted for unless they had that design or 
 which could not be well explained without it. (e) 
 
 Proof of adultery, however direct, is to be scanned very 
 closely when the circumstances are improbable, and rejected if 
 intrinsically incredible. (_/) But it may be supposed that licen- 
 tious persons of opposite sexes, consorting togetlier, and hold^ 
 ing loose views of the marriage relation, commit such offenses 
 as they have opportunity to commit, {g) Yet, even under 
 such circumstances, adultery must be proven by evidence and 
 not by scandal. (Ji) Evidence of reputation is not admissible 
 as substantive proof fo prove adultery, but it may be consid- 
 ered only subsidiary and subordinate evidence, as matter in 
 
 [a) 4 Porter, 467; Matchin-v. Matchin, 6 Barr, 332; Dailey \. Bailey, 
 Wright, Ch. Ohio, 514; Day v. D3,y, 3 Green's Ch. 444; Ferguson v. Fer- 
 guson, 3 Sandf. Ch. 307; Van Epps v. Van Epps, 6 Barb. N. Y. 320; Mehh 
 V. Lapeyrollerie, 16 La. An. 4; Bast v. Bast, 82 111. 584. 
 
 (6) Moore v. Moore, 1 Green, N. J. 122, 276; see Angela v. Angelo, 81 
 111. 251. 
 
 (c) Moulton V. Moulton, 1 Shep. Ma'ne, 110. 
 
 {d) Banta v. Banta, 3 Edw. Ch. 295; see Jenkins v. Jenkins, 86 111. 340. 
 
 (c) Mayer -v. Mayer, 6 C. E. Greene, N. J. 246; Thomas v. Thomas, 51 
 111. 162; Larrison v. Larrison, 5 C. E. Greene, N. J. 100; Hedden v. JSed- 
 den, 6 C. E. Greene, N. J. 61; Thaijer v. Thayer, iOl Mass. 111. 
 
 (/) Bishop V. Bishop, 17 Mich. 211. 
 
 ig) McClung v. McClung, 40 Mich. 494. 
 
 ih) Soperf. Soper, 29 Mich. 806. 
 
532 BILLS FOR DIVORCE. 
 
 Adultery — Frame of Bill Charging Adultery. 
 
 aid of and incidental to the substantive proof, and going to 
 explain and account for the conduct of the parties toward 
 eacli other, (a) 
 
 The charge of adultery that is relied upon by the complain- 
 ant, must not be stale. Where, in an action for divorce, on 
 the ground of adultery, two charges were preferred, one oc- 
 curring more than twelve years prior to the suit, and it was 
 surrounded by circumstances well calculated to induce in- 
 quiry that would have disclosed the real facts, it was regarded 
 as a stale charge, (i) 
 
 So, too, the evidence in support of the charges of the. bill, 
 must be relevant; the proof must correspond to the allegi- 
 tions. Therefore, where a bill for divorce charged adultery to 
 have been committed at twj different places therein named, 
 testimony which tended to prove the commission of adnltery 
 at a third place not named in the bill, was held to be wholly 
 irrelevant and unwarranted, (o) 
 
 The Supreme Courtof Mi^i'iigan has very properly discour- 
 aged the practice of calling young children, even of twelve 
 years of age, as witnesses to prove adultery against their pa- 
 rents. Very little weight will be given to their testimony, 
 and to drag them into such cases, can not be otherwise than 
 an injury to their morals, (d) 
 
 • 
 
 Frame of Mil clmrging a'iultery.—k. divorce can not be 
 decreed upon a bill charging adultery generally, without 
 stating either time, place or circumstances, though the per- 
 sons with whom it is committed are unknown, (e) And it is 
 held, that if the bill alleges adultery with a particular person, 
 it will not be sustained by proof of adultery with anj' otlier 
 person, (y) 
 
 The name of the person witli whom the adultery was corn- 
 
 (a) Marble v. Marble, 36 Mich. 386. 
 
 (6) Stuart v. Stuart, 47 Mich. (Jany. term, 1882). 
 
 (c) Greeny. Green, 26 Mich. 437; Bennett v. Bennett, 40 Mich. 482. 
 
 (d) Kneale v. Kneale, 28 Mich. 344; Crowner v. Crowner, 44 Mieh. 180. 
 {e) Kane v. Kane, 3 Edw. Ch. 389. 
 
 (/) Washburn v. Washburn, 5 N. H. 195. 
 
BILLS FOR DIVORCE. 533 
 
 Adultery — Bill by Husband for a Divorce Charging Adultery. 
 
 mitted should be given, (r) A charge of adultei-y with a cer- 
 tain woman, is too indefinite, (s) if known; and if not known, 
 it must be alleged that it is unknown. The time and place 
 of committing the act should also be stated with reasonable 
 certainty, so that the adverse party may be prepared to 
 meet the charge, (t) 
 
 A charge of extreme cruelty and a charge of adultery may 
 be joined in the same bill, and the court will decree a divorce 
 according to the evidence produced, (u) 
 
 No. 195. Bill hy husband for a divorce charging adultery. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Your orator, A B, of, etc., respectfully represents unto this 
 honorable court, that on. etc., your orator was lawfully joined 
 in marriage with C B, the defendant hereinafter named; and 
 that your orator "is now a resident of said county, and is now, 
 
 and has been a resident of this State for more than years 
 
 last past; that your orator lived and cohabited with the said C 
 B as her husband from the time of their intermarriage until, 
 etc., and in. all respects demeaned himself as a kind and in- 
 dulgent husband; that on, etc., becoming acquainted with the 
 facts hereinafter set forth, he left the said C B, and has re- 
 fused to live and cohabit with her since that time. 
 
 Your orator further represents, that on, etc., at, etc., and at 
 various other times and places since tlie said marriage, the said 
 B, in utter disregard and in violation of her marriage duty 
 and obligations, committed adultery and had carnal knowl- 
 edge with one E F; and that the said C B has at divers other 
 times and places, to your orator unknown, since the said mar- 
 riage, committed adultery with divers other persons to your 
 orator unknown. {Ilere set forth any other act according to 
 circumstances. ) 
 
 [r] Bird v. Bird, Wright, Ch. 98; Richards v. Richards, lb. 302; Mor- 
 rell V. Morrell, 1 Barb. 318. 
 
 («) Mansfield v. Mansfield, "Wright, Ch. 284. 
 
 (t) Shoemaker v. Shoemaker, 20 Mich, 222; Randall v. Randall, 31 Mich. 
 194; Herrick v. Herrick, 31 Mich. 298; Green v. Green, 26 Mich. 437; 
 Dunh V. Dunn, 1] Mich. 284; Morrell v. Morrell, 1 Barb. N. Y. 318. 
 
 {^u) Young v. Young, 4 Mass. 430. 
 
534 BILLS FOR DIVORCE. 
 
 Adultery — Bill by Husband for a Divorce Charging Adultery. 
 
 And your orator positively avers that the several acts of 
 adultery hereinbefore charged vpere all committed without the 
 consent, connivance, privity or procurement of your orator, 
 and that he has not voluntarily cohabited with this defendant 
 
 since the discovery of such adultery, on tiie day of , 
 
 A. D. 18 — , and that all of said acts were committed without 
 the consent, connivance, privity or procurement of your ora- 
 tor, and that this bill is not founded on, or exhibited in con- 
 sequence of any collusion, agreement or understanding what- 
 ever, between the parties hereto, or between your orator, and 
 any other person; and that he has never been guilty of any 
 act of adultery or misconduct, as hereinbefore charged against 
 this defendant. 
 
 In consideration whereof, and to the end, therefore, that 
 the said C B, the defendant hereinbefore named, may without 
 oath (her answer on oath being hereby expressly waived), but 
 according to the best and utmost of her knowledge, remem- 
 brance, information and belief, full, true, direct and perfect 
 answers make, to all and singular the matters hereinbefore 
 stated and charged, as fnlly and particularly, sentence by sen- 
 tence, and paragraph by paragraph, as if the same were here 
 again repeated, and he tiiereto particularly interrogated, and 
 that the marriage between your orator and the said C B, this 
 defendant, may be dissolved, and a divorce from the bonds of 
 matrimony decreed, according to the statute in such case 
 made and provided, and that your orator may have such other 
 relief, and such further relief, in the premises, as shall be 
 agreeable to equity and good conscience. 
 
 May it please the court, the premises being considered, to 
 grant unto your orator the people's writ of subpoena, to be is- 
 sued out of and under the seal of this honorable court, to be 
 directed to the said C B, this defendant, tlierein and thereby 
 commanding her, on a certain day, and under a certain pen- 
 alty, to be therein inserted, personally to be and appear be- 
 fore this honorable court, then and there to answer all and 
 singular the matters and things hereinbefore set forth, and to 
 stand to, abide by and perform such order and decree herein, as 
 shall be agreeable to equity and good conscience. And your 
 orator will ever pray, etc. A B. 
 
 C A J, 
 
 Solicitor, and of counsel for complainant. 
 
 State of Michigan, ) 
 
 County of j ®^- 
 
 On this day day of ^. D. 18^ — , before me per- 
 
.BILLS. FOR DIVORCE. 535 
 
 Adultery— Bill for Divorce by Wife Charging Adultery. 
 
 soiially came the above named A B, who, beins; duly sworn, 
 says that he has read the foregoing bill of cotnplaint, by him 
 subscribed, and knows the contents thereof, and that the same 
 is true of his own knowledge, except as to tlie matters which 
 are therein stated to be on information or belief, and as to 
 these matters he believes it to be true. 
 
 VL, 
 Notary Public, 
 County, Michigan. 
 
 Wo. 196. Bill for dworee iy wife charging adultery, and 
 fraying for alimony and tha custody of cidldren. 
 
 State of Michigan. 
 
 In the Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for tiie County of . In CUiimcery. 
 
 Plumbly complaining, showeth unto the court here your 
 oratrix, A B, that she is now, and has been for more than a 
 year now last past, a resident of said county and State. 
 
 Your oratrix further shows, that on or about the day 
 
 of , A. D. 18 — , at county, , your oratrix wfis 
 
 duly and legally married to the defendant herein, C B, by 
 
 , and that the name of your oratrix previous to the 
 
 said marriage was C D. 
 
 And yonr oratrix further shows, that she has been informed, 
 and verily believes, and therefore charges the truth to be, 
 that this defendant, disregai-ding the solemnity of the marriage 
 vow, hath, since said marriage, committed adultery and had 
 illicit carnal intercourse with divers persons, whose names are 
 at present unknown to your oratrix, at divers times and 
 places, but at what times and places your oratrix in not in- 
 formed. And further, that on or about the day of 
 
 , A. D. 18 — , at , this defendant did commit 
 
 adultery and have illicit carnal intei'course with one Gr H, 
 and has at divers other places and times, since said marriage, 
 to your oratrix unknown, committed adultery with the said 
 G H, and with divers other lewd women, whose names are 
 also to your oratrix unknown. {Here set forth any other 
 act of adult&ry, giving names, time, place, and circumstances 
 as near as possiile.) 
 
 Your oratrix further represents, that she has ever since said" 
 marriage demeaned herself to the said C B as a faithful, chaste 
 and affectionate wife; and as the issue of such marriage your 
 oratrix has borne of the said C B two children, viz., F B and 
 G B, now aged three and five years respectively, who are both 
 
536 BILLS FOR DIVORCE. 
 
 Adultery — Bills for Divorce by Wife Charging Adultery. 
 
 livino;, and have remained under the care and control of your 
 oratrix. 
 
 Your oratrix further represents, that the said C B is a man 
 of low, vicious and vulgar habits, and is addicted to the use of 
 obscene and profane language toward your oratrix and their 
 said children, in the presence and hearing of the said children; 
 and is a person wholly unfit to be intrusted to the care, cus- 
 tody and education of children. 
 
 Your oratrix further represents, that the said B is the 
 owner in fee simple of the following described real property, 
 to wit: {Here describe his real estate,) of great value, to wit: 
 
 of the value of dollars; and is the owner of a large 
 
 amount of personal property, consisting of, etc. {Here de- 
 sorihe it., and set forth his peounia/ry circumstances arui call- 
 ing fully.) That your oratrix is poor, without means to sup- 
 port herself and children, and to prosecute this suit; and that 
 the said C B is abundantly able to supply all the necessities 
 and wants of yonr oratrix and the said children, but wholly 
 neglects and refuses so to do; and your oratrix is now coia- 
 peiled to accept assistance from her relatives and friends to 
 live and subsist from day to day; and that the said children 
 and yonr oratrix are but poorly supplied with clothing and 
 other comforts of life suitable to her and their condition in 
 life. 
 
 Your oratrix further repi'esents, that the said OB threatens, 
 and your oratrix fears that he will carry his threat into execu- 
 tion, to sell off all his real and personal property, to prevent 
 yonr oratrix from obtaining alimony therefrom for the sup- 
 port of herself and her said children; and that the said B 
 ought to be restrained by the injunction of this honorable 
 court from selling, assigning, incumbering or otherwise dis- 
 posing of the said property until the hearing of this cause, 
 and suitable provisions are made for the support of your ora- 
 trix and the said children. 
 
 Forasmuch, therefore, as your oratrix is without remedy in 
 the premises, except in a court of equity; and to the end that 
 the said B, who is made party defendant to this bill, may 
 be required to make full and direct answer to the same; that 
 your oratrix may be divorced and forever freed from the bonds 
 of matrimony now existing between her and the said C B; 
 that tiieenre, custody and education of the said children may 
 be awarded to your oratrix; that this court will decree to 
 your oratrix such portions of the property of the said C B, 
 or snch sums of money to be paid by the said C B to her, as 
 this court may deem necessary and proper for the niainte- 
 
BILLS FOR DIVORCE. 537 
 
 Adultery — Bill for Divorce by Wife Charging Adultery. 
 
 nance of your oratrix and the said children; and that the said 
 C B may be required to pay to your oratrix a sufficient sum 
 of money to enable her' to employ counsel and to prosecute 
 this suit, and for the support of herself and the said children 
 during the pendency thereof; and that the said C B may be 
 restrained by the injunction of this court from selling, assign- 
 ing, incumbering, or otherwise disposing of the said property 
 until the further order of this honorable court; and that yonr 
 oratrix may have such other and further relief in the prem- 
 ises as equity may require, and to this honorable court shall 
 seem meet. 
 
 May it please the court to grant unto yonr oratrix the 
 people's writ of injunction, to be directed to the said C B, re- 
 straining him, etc., from, etc., {Here set forth the matter 
 sought to ie enjoined, as in the above pfoyer,) until the fur- 
 ther order of this court. 
 
 May it also please the court, the premises being consider- 
 ed, to grant unto your oratrix the people's writ of subpoena, 
 to be issued out of and under the seal of this honorable court, 
 to be directed to the said B, this defendant, therein and 
 thereby commanding him, on a certain day, and under a 
 certain penalty, to be therein inserted, personally to be and 
 appear before this honorable court, then and there to answer 
 all and singular the matters and things hereinbefore set forth, 
 and to stand to, abide by and perform, such order and decree 
 herein, and shall be agreeable to equity and good conscience. 
 And your oratrix will ever pray, etc. 
 
 AB, 
 HOB, 
 Solicitor of counsel for complainant. 
 
 State of MicniGiisr, , 
 
 ' ^ ss 
 
 County of ■ 
 On tliis — ■— day of— — A. D. 18 — , before me personally 
 
 came the above named , who, being duly sworn, says 
 
 that she has read the foregoing bill of complaint, by her sub- 
 scribed, and knows the contents thereof, and that the same is 
 true of her own knowledge, except as to the matters which 
 are therein stated to be on information or belief, and as to 
 these matters she believes it to be true. 
 
 ijsr w, 
 
 Notary Public. 
 r County, Michigan. 
 
538 BILLS rOR DIVORCE. 
 
 Conviction of Crime. 
 
 SECTION VIII. 
 
 CONVICTION OF CEIME. 
 
 A divorce may be granted when one of the parties has 
 been sentenced to imprisonment in any prison, jail or house 
 of correction for three years or more, {a) It has been held 
 that conviction and imprisonment in another jurisdiction is 
 not cause for divorce. (5) 
 
 ]Vo. 197. Bill for a divorce, cha/rging a conviction of a 
 felony and sentence to the State ^prison for three years. 
 
 State of Michigan. 
 
 In the Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Humbly complaining, showeth unto the court here your 
 oratrix, A B, that she is now, and has been for more than a 
 year now last past, a resident of said county and State. 
 
 Your oratrix further shows, tliat on or about the — day of 
 
 , A. D. 18 — , at county, , your oratrix was 
 
 duly and legally married to the defendant herein, C B, by 
 
 , and that the name of your oratrix previous to the 
 
 said marriage was . 
 
 Your oratrix further represents, that on, etc., at, etc., at a 
 
 term of the court of the county of , in said State, 
 
 begun and held in said county, on, etc., before the honorable 
 , judge thereof presiding, the said C B was duly con- 
 victed of the crime of larceny, and was then and there, by the 
 judgment of that court, sentenced to confinement in the pen- 
 itentiary of said State, for the term of three years, at hard 
 labor, which said judgment still remains in full force and ef- 
 fect, not reversed, annulled or vacated, as by the records and 
 proceedings in said court now remaining, reference thereto 
 being'had, will more fully appear. 
 
 And your oratrix positively avers that the acts done, and 
 herein charged, for which divorce is sought, were all com- 
 mitted without the consent, connivance, privity or procure- 
 ment of your oratrix, and that this bill is not founded on or 
 
 («) Corap. E. 1871, § 4738. 
 
 (6) Martin v. Martin, 47 N. H. 52; see Sherman v. Sherman, 18 Texas, 
 521. 
 
BILLS FOR DIVORCE. 539 
 
 Desertion for Two Ye irs. 
 
 exhibited in consequence of any collusion, agreement or un- 
 derstanding whatever, between the parties hereto, or between 
 your oratrix and any other person. 
 
 In consideration whereof, and to the end that the said B 
 the defendant hereinbefore named, may, without oath (his 
 answer on oath being hereby expressly waived), but according 
 to the best and utmost of his knowledge, remembrance, in- 
 formation and belief, full, true, direct and perfect answer 
 make, to all and singular the matters hereinbefore stated and 
 charged, as fully and particularly, sentence by sentence, and 
 paragraph by paragraph, as if the same were here again re- 
 peated, and he thereto particularly interrogated, and that the 
 marriage between your oratrix and the said G B, this defend- 
 ant, may be dissolved, and a divorce from the bonds of mat- 
 rimony decreed, according to the statute in such case made 
 and provided, and that your oratrix may have such other 
 relief and such further relief in the premises, as shall be 
 agreeable to equity and good conscience. 
 
 May it please the court, the premises being considered, to 
 grant unto your oratrix the people's writ of subpoena, to be 
 issued out of and under the seal of this honorable court, to 
 be directed to the said C B, this defendant, therein and there- 
 by commanding him, on a certain day, and under a certain 
 penalty, to be therein inserted, personally to be and appear 
 before this honorable court, then and there to answer all 
 and singular the matters and things hereinbefore set forth, 
 and to stand to, abide by and perform, such order and de- 
 cree herein, as shall be agreeable to equity and good con- 
 science. And your oratrix will ever pray, etc. 
 F K, 
 
 Solicitor, and of counsel for complainant. A B. 
 
 {Add verification as in preceding form.) 
 
 SECTION IX. 
 
 DESEETION FOE TWO TEAES. 
 
 If either party deserts the other for the term of two 
 years, it is cause for divorce, {a) 
 
 A separation with the consent or acquiescence of the par- 
 ties, does not constitute desertion. (5) The desertion must be 
 
 (fl) Corap. L. § 4738. 
 
 [V) Coxy. Cox, 35 Mich. 461. 
 
540 BILLS FOR DIVORCE. 
 
 Desertion for Two Years — Bill for Divorce for Desertion. 
 
 willful, and it must continue- for the space of two years, (e) 
 To constitute the offense of desertion, as contemplated by the 
 statute, it must be and continue to be, for the period named 
 a voluntary breaking of matrimonial cohabitation by one 
 party against the will of the other, and under circnmstances 
 which the law does not consider sufficient lo justify it. [d) 
 Mutual treaties and deliberations witliin the period named hy 
 the statute, with a view of living together again, are incon- 
 sistent with the kind of desertion required by the law. {e) 
 
 If a bill is prematurely filed, the defect can not be cured 
 by filing a supplemental bill after the two years have elapsed. 
 A hearing can only be had on the grounds which existed 
 when the suit was commenced, and subsequent grounds can 
 not be incorporated into the case after the commencement of 
 the pi'oceedings. (a?) Two periods of desertion can not be 
 added together to make up the time specified in the statute, [y) 
 
 Separation and intention to abandon must concur in order 
 to constitute the ground for divorce. But they need not be 
 identical in their commencement. If one should leave the 
 other on business, and afterward determine not to return, the 
 desertion would commence from the time the intention was 
 formed, (s) 
 
 iVb. 198. Bill for divorce for desertion. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Your orator, A B, of the township of — , county and 
 
 State aforesaid, respectfully represents unto this honorable 
 
 court, that he is an actual resident of the said county of , 
 
 and is now,g,nd has been for years last past, a resident of 
 
 (c) Thomas v. Thomas, 51 111. 162; See Reavis v. Eeavis, 1 Scam. 242. 
 
 {d) Porrit v. Poryii, 18 Mich. 420. 
 
 (c) Rudd V. Radd, 33 Mich. ICSj Cooper v. Cooper, 17 Mich. 205; Holmes 
 V. Holmes, 44 Mich. 5 5. 
 
 (»■) Embree v. Embree, 53 111. 394. 
 
 0/) 23 Miss. 152. 
 
 (z) Pinhard v. PinJcard, 14 Texas, 356; Reed v. Reed, Wright, Ch. 224; 
 Phelaiif. Phelan, 12 Florida, 449; Kennedy -v^ Kennedy, 87 111. 250. 
 
BILLS rOR DIVORCE. 541 
 
 Desertion for Two Tears — Bill for Divorce for Desertion. 
 
 thc^ township of ^ in the State of Michigan; that on, etc., 
 
 at, etc., he was lawfully married to one C D, now B, the 
 defendant hereinafter named, and from the time of the said 
 marriage until, etc., he lived and cohabited with the said C 
 B as her husband; and always conducted himself toward his 
 said wife as a true, kind and indulgent husband, and provided 
 her with all the necessaries and comforts of life, according to 
 the best of his means and their situation in life. 
 
 Your orator furtlier represents, that the said C B, wholly 
 regardless of her marriage covenants and duty, afterward, on, 
 etc., willfully deserted and absented herself from your orator, 
 without any reasonable cause, for the space of two years and 
 upwards, and has persisted in such desertion, and yet contin- 
 ues to absent herself from your orator. 
 
 And your orator positively avers that the acts done by the 
 said defendant, and hereinbefore charged, and for which di- 
 vorce is sought, were all committed without the consent, 
 connivance, privity or procurement of your orator, and that 
 this bill of complaint is not founded on or exhibited in conse- 
 quence of any collusion, agreement or understanding what- 
 ever, between the parties hereto, or between your orator and 
 any other person. 
 
 Forasmuch, therefore, as your orator is without remedy in 
 the premises, except in a court of equity; and to the end that 
 the said C B, who is made a party defendant to this bill, may 
 (without oath, her answer' on oath being hereby expressly 
 waived), but according to the best and utmost of her knowl- 
 edge, remembrance, information and belief, full, true, direct 
 and perfect answer make, to all and singular the matters 
 hereinbefore stated and charged, as fully and particularly, 
 sentence by sentence, and paragraph by paragaph, as if the 
 same were here again repeated, and he thereto particularly 
 interrogated, and that the marriage between 3'our orator and 
 the said C B, this defendant, may be dissolved, and a divorce 
 from the bonds of matrimony decreed, according to the stat- 
 ute in such case made and provided, and that your orator 
 may have such other relief, and such further relief, in the 
 premises, as shall be agreeable to equity and good conscience. 
 
 May it please the court, the premises being considered, to 
 grant unto >'our orator, the people's writ of subpoena, to be 
 issued out of and under the seal of this honorable court, to be 
 directed to the said C B, this defendant, therein and thereby 
 commanding her, on a certain day, and under a certain pen- 
 alty, to be therein inserted, personally to be and appear be- 
 fore this honorable court, then and there to answer all and 
 
542 BILLS FOR DIVORCE. 
 
 Habitual Drunkenness. 
 
 singular the matters and things hereinbefore set forth, and t-" 
 stand to, abide bj and perform, such order and decree herein, 
 as shall be aojreeable to equity and good conscience. And 
 yonr orator will ever prav, etc. 
 
 AB. 
 W S 
 Solicitor for complainant, and of counsel. 
 {Add verification as inform 196.) 
 
 SECTION X. 
 
 HABITUAL DRUNKENNESS. 
 
 , A divorce may be granted when either party shall have be- 
 come an habitual drunkard, (a) 
 
 Our courts have construed this language to mean that the 
 habit mast have been contracted subsequent to the marriage, 
 unless, perhaps, when such habit was concealed from the com- 
 plainant's knowledge until after the marriage, [b) If the 
 complainant was aware before marriage that the defendant 
 was an habitual drunkard, a divorce will not be granted. 
 
 "What amounts to habitual drunkenness is generally a ques- 
 tion of law: and, therefore, on the hearing of the cause, it is 
 not sufficient that the witness testify in general terms that 
 the defendant is an habitual drunkard, but the witness should 
 give the particular facts and circumstances, so that the court 
 may judge of their sufficiency, (c) In Michigan it has 
 been held that one who has the habit of indulging in intoxi- 
 cating liquors, so firmly fixed that he becomes intoxicated as 
 often as the temptation is presented by his being in the vicin- 
 ity where liquors are sold, is an habitual drunkard within the 
 meaning of the law. {d) In California the court has said 
 that a fixed habit of drinking to excess, to such a degree as to 
 disqualify a person from attending to his business, during the 
 principal portion of the time usually devoted to business, is 
 
 (a) Comp. L. 1871, § 4738. 
 
 (6) Porritt v. Porritt, 16 Mich. 140. 
 
 (c) Bishop on Mar. & Div. § ■''132; Batchelder v. Batchelder, 14 N. H. 380. 
 
 {d) Magahay v. Magahay, 35 Mich. 210. 
 
BILLS rOR DIVORCE. 543 
 
 Habitual Drunkenness — Bill for Divorce Charging Habitual Drunkenness. 
 
 snch habitual intemperance as is made a ground for di- 
 vorce, {a) 
 
 No. 199. Bill for divorce, cliarging habitual drunlcenness, 
 and praying for custody of children^ alimony, injunc- 
 tion, etc. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 The Circuit Court for the County of . In Chancery. 
 
 Your oratrix, A B, of, etc., respectfully represents unt-o this 
 honorable court, that she is an actual resident of the said 
 
 '"oiinty of , and is now, and has been a resident of the 
 
 State (if Michigan for over one year last past; tliat on, etc , at 
 etc., she was lawfully married to one C B, and from that time 
 until, etc., lived and cohabited with him as his wife, and dur- 
 ing all that time faithfully performed all her duties and obli- 
 gations as a wife, bearing with her husband's faults and 
 errors, and striving to make their home and family comforta- 
 ble and happy. 
 
 Your oratrix further represents, that the said C D, whollj' 
 regardless of his obligations as a husband, a few years after 
 the said marriage, commenced the excessive use of intoxica- 
 ting liquors, and has become and is an habitual drunkard, 
 and is and has been guilty of habitual drunkenness; that he 
 has constantly been on sprees. She shows unto the court, 
 that among the many different occasions that the said defend- 
 ant has been intoxicated may be enumerated the following. 
 {Here set forth the different occasions of drunlcenness iy the 
 defendant somewhat fully and as far as practical, with facts 
 going to show defendant to he an habitual drunkard.) Your 
 oratrix shows tliat defendant remains in an intoxicated con- 
 dition almost continually, and is unfit to attend to liis usual 
 occupation and business; that while he is thus intoxicated, he 
 is very quarrelsome, and ill-treats his family, using abusive 
 language and opprobrious epithets, rendering your oratrix's - 
 condition intolerable, and her life burdensome; in conse- 
 quence of which she was compelled to withdraw with her 
 children from their home. 
 
 Your oratrix further represents, that as the issue of such 
 marriage she has had by the said C B three children, viz., 
 
 E B, now aged years; F B, now aged years; and 
 
 G B, now aged years; and that in consequence of his 
 
 [a] Mahone t. Mahone, 19 Ca.. 627. 
 
544 BILLS FOE DIVORCE. 
 
 Habitual Drunkenness — ^BIll for Divorce Charging Habitual Drunkenness. 
 
 drunken habits and abusive language, the said C B is a per- 
 son wholly nnfit to have the care, custody and education of 
 said children. 
 
 Yonr oratrix further represents, that the said C B is the 
 owner in fee of the following described real property, to wit 
 {Here describe the real estate): of great value, to wit, ot the 
 value of about dollars; and is the owner of the follow- 
 ing described personal property and effects, to wit {Here 
 describe): that your oratrix is without means of subsistence, 
 except as she is able to earn the same by her own labor; tliat 
 the said C B is able to support your oratrix and their said 
 children if he was disposed to do so. 
 
 Your oratrix further represents, that the saidCB has given 
 out'his intention, and threatens to sell and dispose of all his 
 property as aforesaid, and to leave your oratrix and tne said 
 children without any means of support; and your oratrix has 
 good reasons to fear, and does fear, that he will curry his said 
 threats and intentions into execution unless he is restrained 
 by the injunction of this honorable court. 
 
 And your oratrix positively avers that the acts charged in 
 this her bill of complaint and for which divorce is sought, 
 were all committed withont the consent, connivance, privity 
 or procurement of your oratrix, and that this bill is not 
 founded on or exhibited in consequence of any collusion, agree- 
 ment or understanding whatever between the parties hereto, 
 or between your oratrix and any other person. 
 
 Forasmuch, therefore, as your oratrix is without remedy in 
 the preftiises, except in a court of equity; and to the end that 
 the said C B, who is made party defendant to this bill, may 
 be required to make full and direct answer to the same : (But 
 without oath, his answer on oath being hereby expressly 
 waived.) that your oratrix may be divorced and forever Ireed 
 from the bonds of matrimony now existing between her and 
 tiie said C B; that the care, custody and education of tlie said 
 children may be awarded to your oratrix; that your honor will 
 decree to your oratrix such portions of the property of 
 the said C B, or such sums of money to be paid by the 
 said C B to her, as your honor may deem necessary and 
 proper for the maintenance of your oratrix and the said 
 children; and that the said C B may be required to pay to 
 your oratrix a sufficient sum of money to enable her to employ 
 counsel, and to prosecute tliis suit, and for her support, and 
 that of said children, during the pendency thereof; and that 
 the said B may be restrained by the order and injunction 
 of this honorable court, Iroui selling, assigning, incumbering 
 
BILLS FOR DIVORCE. 545 
 
 Extreme Cruelty. 
 
 or otherwise disposing of tlie said property, until the further 
 order of this honorabe court; and that your oratrix may have 
 such other and further relief in the premises as equity may 
 require and to your honor shall seem meet. 
 
 May it please, etc. {Add prayer for injunction and for 
 process, and add verification.) 
 
 SECTION XL 
 
 EXTREME CEUELTT. 
 
 If a husband or wife has been guilty of extreme cruelty 
 toward the other, a divorce may be obtained under the statute 
 for that cause, {a) 
 
 The statutes of many States are more strict than Michigan 
 with regard to cruelty as a cause for divorce, and accordingly 
 it has been held in many courts of last resort that cruelty 
 must consist in physica,! violence, and not in angry or abusive 
 epithets, or even profane language, and it must be shown to 
 have been repeated. (5) Austerity of temper, sallies of pas- 
 sion, or abusive language, do not constitute such extreme and 
 repeated cruelty, within the statute, as to authorize a decree 
 of divorce, (c) 
 
 But our statute provides that a divorce may be granted for 
 extreme cruelty, " whether practiced by using personal vio- 
 lence or by any other means." It was evidently the intention of 
 our legislature, that divorces from the bond of marriage should 
 seldom be granted upon the ground of extreme cruelty. For, 
 while saying that a divorce from bed and board may be 
 granted upon that ground, the statute also provides that the 
 court may grant a decree from the bond of marriage for ex- 
 treme cruelty, whenever in its opinion, " from the circum- 
 
 («) Comp. L. 1871, § 4739. 
 
 (i) Emhree v. Embree, 53 111. 394; Vignos v. Vignos, 15 111. 186; 'shaw 
 V. Shaw, 17 Conn. 189; Peahodij v. Peabodg, 104 Mass. 195; Moyler v. 
 Moyler, 11 Ala. 620; Hughes v. Hughes, 19 Ala. 307; Baileg v. Bailey, 97 
 Mass. 378; Odom v. Odom, 36 Geo. 286. 
 
 (c) TurbiU v. TurMit 21 111. 438; Shell v. Shell, 2 Sneed, Tenn. 716; 
 Ford V. Ford, 104 Mass. 198; Hughes v. Hughes, 44 Ala. 698; Conesey v. 
 Conesey, 60 111. 188. 
 
 35 
 
546 BILLS FOR DIVORCE. 
 
 Extreme Cruelty. 
 
 stances of the case, it will be discreet and proper so to do." 
 The wliole matter is left to the discretion of the court, with 
 the plain intimation that the court should carefully scrutinize 
 each case, and wisely use the discretion giyeu. 
 
 Cruelty and failure to i u iport, have become the main rea- 
 sons alleged by parties why divorces sliould be granted. In 
 view of this fact, it seems to us that the testimony in each 
 case should be carefully sifted by the court. The testimony 
 in pro eonfesso cases should be taken by question and answer, 
 in order that the court can ascertain whether the proof is the 
 result of leading questions. And in all suspicious cases, tiie 
 court should require, as it may by the rule, (a) that some of 
 the more important witnesses appear in court, in order that 
 he may examine tliem somewhat himself, and form some 
 opinion regarding the value of their testimony. Divorces are 
 too readily granted in this country. It would be better, per- 
 haps, if all divorce cases were tried by a jury, so that the wit- 
 nesses would have to give their testimony in open court, under 
 the eyes of twelve tnen, instead of giving it in the privacy 
 of the commissioners office. 
 
 Our Supreme Court lias held that while our statutes do not 
 confine the deiinition of cruelty to physical violence, still the 
 grievances, whether mental or physical, must be of the most 
 aggravated nature, in order to justify a divorce. (5) Courts 
 can not lawfully divorce parties merely because from unruly 
 tempers and mntual wrangling, they can not live happily to- 
 gether. They are bound to submit to the ordinary conse- 
 quences of human infirmity and unwise selection, and the 
 misconduct which will authorize a divorce, must be very se- 
 rious, and such as amounts to extreme cruelty, entirely sub- 
 verting tiie family relations by rendering the association in- 
 tolerable, (c) Violence committed during a quarrel in wliich 
 
 (a) Chancery Rule. 
 
 {b) Cjoper v. Cooper, 17 Mich. 205; Lipp v. Lapp, 43 Mich. 287; Bishop 
 V. Bishop, 17 Mich. 212; Beimettv. Bennett, 24 Mich. 482; Broimv. Brown, 
 24 Mich. 242; Palmer- v. Palmer, 45 Mich. 150; Holmes v. Holmes, 44 
 Mich. 555; Cox v. Cox, 35 Mich. 4fil; Canfield v. Canfield, 34 Mich. 519. 
 
 (c) Cooper Y. Cooper, 17 Mich. 205. 
 
BILLS FOR DIVORCE. 547 
 
 Extreme Cruelty. 
 
 the husband Buffers as much as the wife, is not such cruelty 
 as will sustain a divorce against him. {a) 
 
 But profane, obscene and insulting language habitually in- 
 dulged toward a wife of sensitive nature and refined feelings, 
 especially in the presence of her children, may amount to 
 extreme cruelty. This, as a general rule would be more read- 
 ily recognized when used by the husband to the wife, than 
 when by the wife to the husband. (5) It is extreine cruelty 
 for the husband to openly consort with, and to express his 
 preference for loose females, (c) Or to communicate to his 
 wife a venereal disease; but the fact that a wife whose chas- 
 tity is unsuspected, is found to have a venereal disease, is not 
 sufficient evidence that the disease was communicated to her 
 by her husband, {d)' 
 
 "Where the husband is the complainant, it is not sufficient 
 to show slight acts of violence on the part of the wife toward 
 him. (e) 
 
 "Where extreme cruelty is alleged as a cause of divorce, 
 there should be a specification of the acts of cruelty com- 
 plained of. (f) 
 
 Although the specific acts of cruelty must be set out in the 
 bill, yet the evidence is not necessarily limited to the particu- 
 lar facts charged. Thus, acts of personal violence, when in- 
 trinsically and separately considered, may not justify a di- 
 vorce; yet when attended by habitual brutal behavior, so as 
 to be a constant outrage upon the sense of decency and pro- 
 priety of the party to be affected by them, a case of extreme 
 cruelty within the meaning of the statute is established, (g) 
 
 (a) Soper v. Soper, 29 Mich. 305. 
 
 (6) Bennett v. Bennett, 24 Mich. 482; Goodman v. Goodman, 26 Mich. 
 417. 
 
 (c) McChc'ng V. McCUng, 40 Mich. 493 
 
 [d) Holthoefer v. Holthoefer, 47 Mich. (Jany. Term, 1882). 
 
 (c) Birlchj V. Birkhij, 15 111. 120; De La Hay v. De La Hay, 21 111. 252; 
 see Lynch v. Lytich, 33 Md. 328. 
 
 (/) Fellotvs V. Fellows, 8N. H. 160; Hill v. Hill, 10 Ala. 527; Wrighty. 
 Wright, 3 Texas, 168; Byrne v. Byrne, lb. 336. 
 
 {g) Briggs v. Briggs, 20 Mich. 84; see Berdell v. Berdell, 80 111. 604; 
 Farnham v. Farnham, 73 111. 497. 
 
548 BILLS FOR DIVORCE. 
 
 Extreme Cruelty — Bill for Divorce on the Ground of Extreme Cruelty. 
 
 But a decree for divorce can not be sustained on the ground 
 of extreme cruelty, upon evidence as to an act of personal 
 violence not set up in the bill, especially where it appears 
 that such act, if it occurred at all, was committed; some 
 months after the bill was filed, {a) 
 
 No. 200. Bill for divorce, on the ground of extreme and re- 
 peated cruelty. 
 
 State of IVTichigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the County of . In Cliancerv. 
 
 Tour orator, A.B, of, etc., respectfully represents unto this 
 honorable court, that he is an actual resident of the county of 
 
 aforesaid, and is, and has been, a resident of the State of 
 
 Michigan for years last past; that on, etc., at, etc., he was 
 
 lawfully married to one C D, now C B, with whom he resided 
 until, etc., when he was compelled to leave and cease living 
 with her, in consequence of the ill-treatment hereinafter men- 
 tioned; that during the time he so lived with the said C B, 
 he always conducted hinisi if toward her with kindness, and 
 as a true and indulgent Imsba-nd, supplying all her wants and 
 necessities, according to the best of his means and ability, 
 •and suitable to his and her condition in life. 
 
 Your orator further represents, that the said C D, not re- 
 garding her marriage relations and duties, has, since the said 
 intermarriage, been guilty of extreme and repeated cruelty 
 towards your orator, in this, that she is a woman of great 
 
 austerity of temper, and very frequently, during the past 
 
 years, indulged in violent sallies of passion, and used toward 
 your orator very obscene and abusive language, without any 
 provocation whatever, and frequently refused to prepare your 
 orator's meals, and perform such other household duties as it 
 was incumbent upon her to perform; and, on numerous occa- 
 sions during the time mentioned, has used personal violence 
 toward your orator, which he did not feel disposed to resent, 
 or even defend himself, on account of her sex; and particu- 
 larly your orator charges, that on or about, etc., at, etc., the 
 said C B, without any provocation whatever, struck your ora- 
 tor a violent blow over the head with a club; and again, on 
 or about, etc., the said C B again attacked your orator in 
 their house, and severely beat and bruised hiln with a chair, 
 
 "{a) Bennett v. Bennett, 24 Mich. 482. 
 
BILLS FOR DIVORCE. 549 
 
 Extreme Cruelty — Bill for Divorce Charging Extreme Cruelty, etc. 
 
 and broke the chair in pieces; and that on or about, etc. {Set 
 forth each act of violence according to the facts.) 
 
 And your orator positively avers, that the several acts of 
 cruelty upon the part of the said defendant herein charged, 
 and for which divorce is souo;ht, were all committed witliout 
 the consent, connivance, privity or procurement of your ora- 
 tor, and tliat this bill is not founded on, or exhibited in con- 
 sequence of any collusion, agreement or understanding what- 
 ever, between the parties hereto, or between your orator and 
 any other person. 
 
 Inasmuch, therefore, as your orator is without remedy in 
 the premises, except in a court of equity: and to the end that 
 the said C B, who is made party defendant to this bill, may 
 be (without oath, her answer on oath being hereby expressly 
 waived) required to make full and direct answer to the same; 
 and that the said marriage between your orator and the de- 
 fendant ma}"^ be dissolved by the decree of this court, accord- 
 ing to the statute in such case made and provided; and that 
 your orator may have such other and further relief in the 
 premises, as equity may require and to this honorable court 
 shall seem meet. 
 
 May it please, etc. {Pray process and add affidavit, as in 
 No. 196.) 
 
 iVo. 201. Bill for divorce, charging extreme cruelty, and 
 ■praying for an injv/nction, etc. 
 
 State of Michigan. 
 To the Circuit Court for the County of — ■—. In Chancery. 
 Your oratrix, of the townsliip of :, in th* county of - 
 
 and State of Michigan, respectfully shows unto the court, that 
 
 on or about the day of , in the year 18 — , your 
 
 oratrix intermarried with one C B, at the , in the county 
 
 of , in the State of , and that said parties lived and 
 
 cohabited together, as husband and wife, from such time until 
 on or about the day of , A. D. 18 — . 
 
 And your oratrix further shows unto the court, that she 
 has resided in this State since said marriage with said defend- 
 ant, continually, for a period of— — year and upwards, im- 
 mediately preceding the time of exhibiting this her bill of 
 complaint, and that she still resides in, and is an inhabitant of 
 this' State. 
 
 And your oratrix further shows unto the court, that during 
 the time said parties so lived and cohabited together as hus- 
 band and wife, and up to this, the time of exhibiting this her 
 
650 BILLS rOR DIVORCE. 
 
 Extreme Cruelty — Bill for Divorce Charging Extreme Cruelty. 
 
 bill of complaint, yonr oratrix bore unto the said B one 
 child, who is now living, whose name and age is as fol- 
 lows, to wit: E B, now aged about years; and that 
 
 your oratrix since her intermarriage with the said C B, has 
 always beliaved herself toward liim as a chaste, dutiful and 
 affectionate wife. 
 
 And your oratrix further shows unto the court, that the 
 said C B, disregarding the solemnity of his marriage vow, has 
 ever since said marriage been guilty of extreme and repeated 
 cruelty toward your oratrix, that is to' say, tliat the said B, 
 on divers days and times tince said marriage, has beaten, 
 struck, kicked and choked her, and has neglected to furnish her 
 and her said child with proper and necessary food and clothing; 
 and particularly, that on, etc., at their house, the said C B struck 
 your oratrix a violent blow in her face with his fist, knocking her 
 down, and otherwise greatly injuring your oratrix; and that 
 afterward, on, etc., the said C B again attacked your oratrix, 
 in their said house, kicked, choked and forced her out of said 
 house; and again on, etc., he struck and kicked your oratrix 
 in a violent manner, and otherwise ill treated her; and on, 
 etc. (Insert each act of violence according to the facts); 
 and on each of said occasions and on nuirieruus other occa- 
 sions', has used toward your oratiix and her said child, the 
 most obscene, profane and opprobrious language, rendering 
 her life miserable. 
 
 Your oratrix further represents, that since she left the said 
 C B he has continued to annoy and abuse her; and threat- 
 ens to take the said child from your oratrix by force, and 
 to kill your oratrix if she refuses to let him take the said 
 child from her; and yonr oratrix fears and believes that the 
 said C B will carry his threats into execution, unless restrained 
 by the injunction of this honorable court. 
 
 Your oratrix further represents, that the said C B is pos- 
 sessed of the household furniture and property used by your 
 oratrix and him in keeping house, but now threatens to sell 
 and dispose of the same to prevent your oratrix from obtaining 
 possession thereof; and your oratrix fears and believes he will 
 carry said threat into execution, unless restrained by the in- 
 junction of this honorable court. 
 
 And yonr oratrix positively avers that the act done and 
 cause of divorce charged in this bill of complaint, for which 
 divorce is sought, were committed without the consent, conniv- 
 ance, privity or procurement of your oratrix, and that such 
 bill is not founded on, or exhibited in consequence of any 
 collusion, agreement or understanding whatever, between the 
 parties thereto or between your oratrix and any other person. 
 
BILLS FOR DIVORCE. 551 
 
 Failure to Support. 
 
 In coiisideratieri whereof, and to tlie end, therefore, that the 
 said C B, the defendant hereinbefore named, if he can show 
 why your oratrix should not have the relief hereby prayed, 
 may without oath (his answer on oath being liereby expressly 
 waived), and according to the best and utmost of his several 
 and respective knowledge, remembrance, information, and 
 belief, full, true, direct and perfect answer make to all and 
 singular the matters hereinbefore stated and charged, as fully 
 and particularly, sentence by sentence, paragraph by para- 
 graph, as if the same were here again repeated, and he there- 
 to jiarticnlarly interrogated, and that the marriage between 
 
 your oratrix and the said may be dissolved, and a divorce 
 
 from the bonds of matrimony decreed, according to the stat- 
 ute in such case made and provided, and that your oratrix may 
 have the care, custody and education of said infant child 
 the surviving issue of said marriage, until he shall 
 respectively attain the age of fourteen years; tliat yimr 
 honor will decree to your oratrix the household furni- 
 ture and property of the said C B, and such sums of money 
 to be paid by the said C B to her as your honer may deem 
 necessary and proper for tlie maintenance of your oratrix and 
 the said child; and that the said C B niay be required to pay 
 to your oratrix a sufficient sum of money to enable her to 
 employ counsel and to carry on this suit, and for the suppoit 
 of herself and said child during the pendency thereof; and 
 that the said C B may be restrained by the order and injunc- 
 tion of this honorable court, from selling, assigning, or other- 
 wise disposing of the said household furniture or property, 
 or from in any manner interfering with your oratrix or the 
 said child until the further order ot this court; and that your 
 oratrix may have such otlier and further relief in the premises 
 as equity may require and to this honorable court shall seem 
 meet. 
 
 May it please, etc. {Praying process and for an mjuiiction, 
 and adding affidavit. 
 
 SECTION XII. 
 
 FAILURE TO StJPPOET. 
 
 A divorce may be decreed upon the complaint of the wife, 
 when the husband, being of sufficient ability to provide a 
 suitable maintenance for her, shall grossly or wantonly, and 
 cruelly refuse or neglect so to do, whenever in the opinion of 
 
552 BILLS FOR DIVORCE. 
 
 Failure to Support — Bill for Divorce for Failure to Support. 
 
 the court the circumstances of the case shall be such that it 
 will be discreet and proper, (a) 
 
 The power to grant a divorce upon this ground, Is not ex- 
 ercised by the court, except in extreme cases. The failure to 
 support must either be the result of a willful and malicious 
 spirit, or it must proceed from such wanton and cruel neglect, 
 as to subvert the marriage relation. Failure to support, 
 means that the man is able to support his wife, but will not. 
 
 The ability to support, contemplated by the statute, means 
 something more than mere physical ability. (5) It would seem 
 that the husband should either have property, or the ability 
 and means of earning it. If a man is willing to work, but 
 can find no work to do, and his family suffers in consequence 
 thereof, this would not be such failure to support as would 
 justify a divorce. If a man is lazy, and refuses to work, and 
 his family suffers, this would be " gross, wanton and cruel 
 neglect," and a failure to support, (c) 
 
 The complaining wife must produce in court some evidence 
 of the husband's ability to support, (d) 
 
 No. 202. Bill for dvoorce for fmlwrQ to supjport. 
 
 State of Michigan. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Your oratrix, A B, of the township of , in the county 
 
 of and State of Michigan, respectfully shows unto the 
 
 court, that on or about the day of , in the year 18 — , 
 
 your oratrix intermarried with one C D, at the town of •, 
 
 ill the County of , in the State of , and that said 
 
 parties lived and cohabited together, as husband and wife, 
 
 from such time until on or about the day of , A. 
 
 D. 18—. 
 
 And your oratrix further shows unto the court, that she has 
 resided in this State since said marriage with said defendant, 
 
 (a) Comp. L. 1871, §§ 4739, 4740. 
 
 (6) Washburn y. Washburn, 9 Cal. 475. 
 
 (c) 1 Bish. Mar. & Divorce, § 820; Ahrenfeldt v. Ahrenfeldt, 1 HofF. 
 47; Johnson v. Johnson, 4 Wis. 135; Hooper r. Hooper, 19 Mo. 355; see, 
 also, Mary F. v. Samuel F., 1 N. H. 198; Davis v. Davis, 37 N. H. 191. 
 
 [d) Harteau v. Harteau, 14 Pick. 181. 
 
BILLS FOR DIVORCE. 553 
 
 Failure to Support — Bill for Divorce for Failure to Support. 
 
 continually, for a period of years and upwards, immedi- 
 ately preceding the time of exhibiting this bill of com - 
 
 plaint, and that she still resides in, and is an inhabitant of 
 this State. 
 
 And your oratrix further shows unto the court, that during 
 the time said parties so lived and cohabited together as hus- 
 band and wife, and up to this, the time of exhibiting this, her 
 bill of complaint, your oratrix bore unto the said C D two 
 children, of whom are now living, whose names and ages are 
 as follows, to wit: E F, aged two years, G H, aged one 
 year. 
 
 And your oratrix further shows unto the court, that the said' 
 C D, disregarding the solemnity of his marriage vow, lias, for 
 the past six months utterly failed and refused to provide your 
 oratrix with the common necessities of life. 
 
 She sliows that the said C D is strong and healthy, and 
 possessed of good natural abilities, and well able to earn large 
 wages at his trade of carpenter and joiner, and that during 
 the past six months large sums of money have been paid to 
 the said C D, none of which he has applied to the support of 
 liis family, or to their necessities. She shows that he spends 
 most of his time with his boon companions when not at work, 
 coming to his home occasionally, and then staying but a short 
 time. 
 
 Your oratrix shows that she is in very poor health, and un- 
 able to do more than to care for her two young children ; that 
 during the past six months she has been obliged to rely upon 
 the charity of neighbors for the common necessities of life. 
 She siiows that she has no food in her house, no wood for tire, 
 and that she is utterly destitute of the common necessities of 
 life. Slie shows that during the past six months, the defend- 
 ant has done absolutely nothing for the support of his family, 
 or for your oratrix. 
 
 {If the defendant has means, and alimony is desired, set 
 forth here the am,ount and nature of his property, and in 
 the prayer for relief, pray for alimony, as in preceding form.) 
 
 And your oratrix avers, and expressly charges the truth to 
 be, that the said defendant, C D, though of sufficient ability 
 so to do, has grossly, wantonly and cruelly neglected and re- 
 fused to provide a suitable maintenance for your oratrix, and 
 still does neglect and refuse so to do. 
 
 And your oratrix positively avers that the acts done, and 
 cause of divorce charged in this bill of complaint, for which 
 divorce is sought, were committed without tiie consent, con- 
 nivance, privity or procurement of your oratrix, and that 
 
554 BILLS FOR DIVORCE. 
 
 Failure to Support — Bill for Divorce for Failure to Support. 
 
 such bill is not founded on, or exhibited in consequence of 
 any collusion, agreement or understanding whatever, between 
 the parties thereto or between your oratrix and any other per- 
 son. 
 
 In consideration whereof, and to the end, therefore, that 
 the said G D, the defendant hereinbefore named, if he can 
 show why your oratrrix should not have the relief hereby 
 prayed, may without oath (his answer on oath being hereby 
 expressly waived), ind according to the best and utmost of his 
 several and respective knowledge, remembrance, information, 
 and belief, full, true, direct and perfect answer make to all 
 and singular, the matters hereinbefore stated and charged, as 
 fully and particularly, sentence by sentence, paragraph by 
 paragraph, as if the same were here again repeated, and he- 
 thereto particularly interrogated, and that the marriage b& 
 tween your oratrix and the said C D may be dissolved, and a 
 divorce from the bonds of matrimony decreed, according to 
 the statute in such case inade and provided, and that your ora- 
 trix may have the care, custody and education of said infant 
 children, E F and G H, the surviving issue of said marriage, 
 until they shall respectively attain the age of fourteen years, 
 and that your oratrix may have such other relief, and such 
 further relief in the premises as shall be agreeable to equity 
 and good conscience. 
 
 May it please the court, the premises being considered, to 
 erant unto your oratrix, the most gracious writ ot subpoena, 
 of the people of the State of Michigan, to be issued out of and 
 under the seal of this honorable court, to be directed to the 
 said C D, therein and thereby commanding him on a certain 
 day and under a certain penalty, to be therein inserted, per- 
 sonally to be and appear before this honorable court, then and 
 there to answer all and singular the said premises, and to 
 stand to and abide and perform such order and decree therein, 
 as shall be agreeable to equity and good conscience. And 
 vour oratrix will ever pray, etc. 
 
 AB. 
 JWB, 
 
 Solicitor for complainant, and of counsel. 
 
 Statr of Michigan, 
 
 County of . 
 
 On this • day of , A. D. 18 — , before me personally 
 
 came the above named A B, and made oath that she has heard 
 read the foregoing bill of complaint by her subscribed, and 
 knows the contents thereof, and that the same is true of her 
 
 !■ 
 
BILLS FOR DIVORCE. 555 
 
 Divorces Granted in another State — Suit to Annul Marriage. 
 
 own knowledge, except as to tlie matters which are therein 
 stated to be on lier information or bulief, and as to those mat- 
 ters, she believes it to be true. 
 
 TKS, 
 Notary Public, County, Mich. 
 
 SECTION XIII. 
 
 DIVOECES GEANTED IN AJSTOTHEE STATE. 
 
 The court has discretion, upon application, as in other 
 cases, to divorce from the bonds of matrimony, any party 
 who is a resident of Michigan, and whose husband or wife 
 shall have obtained a divorce in any other State, (a) This 
 power is given the court, to enable it to grant any proper re- 
 lief when it is necessary to protect property, or other rights, 
 and this, too, without reference to the party taking the first 
 step. (5) 
 
 SECTION XIV. 
 
 SUIT TO ANNUL MAEEIAGE. 
 
 The statute provides (e) that when a marriage is supposed 
 to be void, or the validity thereof is doubted, for any of the 
 causes mentioned in the preceding sections, {d) either party, 
 excepting in cases where a contrary provision is hereinafter 
 made, may file a petition or bill in the circuit court of the 
 county, where the parties, or one of them, reside, or in the 
 court of chancery, for annulling the same. 
 
 Where it is claimed that the marriage is void, it would 
 seem that the bill should be filed, if filed by the wife, in the 
 name she bore previous to the alleged marriage. 
 
 On filing a bill or petition to annul a marriage, the pro- 
 ceedings thereon will be the same as in the case of a petition 
 
 (a)Comp. L. 1871, §4733. 
 (6) Comp. L. 1871, § 4739. 
 
 (c) Comp. L. 1871, § 4735. 
 
 [d] Sections 4738, 4768, 4734, 4766, 4769. 
 
556 BILLS FOR DIVORCE. 
 
 Suit to Affirm Marriage — ^Toid Marriages. 
 
 Or bill filed for a divorce, and upon due proof of the nullity 
 of the marriage, it will be declared void by a decree or sen- 
 tence of nullity, {a) 
 
 All issues upon the legality of a marriage, except when 
 the marriage is sought to be annulled on the ground of physi- 
 cal incapacity of one of the parties, must be tried by a 
 jury. (J) 
 
 SECTION XT. 
 
 SUIT TO AFFIEM MAERIAGE. 
 
 When the validity of any marriage shall be denied or 
 doubted by either of the parties, the other party may file a 
 bill or petition in the manner provided in suits to annul 
 marriage, for afiirming the marriage; and upon due proof of 
 the validity thereof, it will be declared valid by a decree or 
 sentence of the court; and such decree, unless reversed upon 
 appeal, will be conclusive upon all persons concerned, (e) 
 
 SECTION XVI. 
 
 VOID MAKEIAGES. 
 
 All marriages which are prohibited by law on account of 
 consanguinity or afiinity between the parties, or on account 
 of either of them having a former wife or husband then living; 
 all marriages solemnized when either of the parties was insane 
 or an idiot, and all marriages between a white person and a 
 negro, will, if solemnized within this State, be absolutely 
 void, without any decree of divorce or other legal process. («^) 
 But, in the case of a bill filed by a lunatic after his restoration 
 to reason, if it appears that the parties freely cohabited as 
 husband and wife after the lunatic was restored to mind, no 
 divorce will be granted, {e) 
 
 (o)Comp. L. 1871, § 4785; see 1 Edw. 46. 
 (6) Comp. L. 1871, § 5068. 
 
 (c) Comp. L. 1871, § 4736. 
 
 (d) Comp. L. 1871, § 4733. 
 
 (e) Comp. L. 1871, § 4768. 
 
BILLS FOR DIVORCE. 557 
 
 Void Marriages. 
 
 In the case of a marriage solemnized when either of the 
 parties was under the age of legal consent, if they shall sepa- 
 rate during snch non-age, and not cohabit together afterward, 
 or in case the consent of one of the parties was obtained by 
 force or fraud, and there shall liave been no subsequent volun- 
 tary cohabitation of the parties, the marriage will be deemed 
 void, without any decree of divorce or other legal process, {a) 
 If, after the alleged force or fraud, the parties voluntarily co- 
 habit as husband and wife, the marriage will not be annulled. (5) 
 
 When persons are married, one of whom is over and the 
 other is under the age of consent, tlie former by the statute 
 is bound by the marriage, unless they separate by consent be- 
 fore the other reaches lawful age, or do not cohabit afterward, 
 or unless the other refuses consent on arrivina; at that asre. 
 And a second marriage by the former, in the absence of mu- 
 tual separation, or of such refusal to consent, is bigamy, (c) 
 
 By the " age of consent," is meant in males eighteen years, 
 and in females sixteen years, (d) 
 
 When either party shall be sentenced to imprisonment for 
 life in any prison, jail or house of correction, the marriage 
 will be thereby absolutely dissolved, without any decree of 
 divorce or other legal process, and no pardon granted to the 
 party so sentenced will restore the party to his or her conju- 
 gal rights, (e) 
 
 A second marriage, while the first remains undissolved by 
 death or divorce, is, by the common law, null and void, (y") 
 But to render the second marriage null, the first must be 
 valid, ig) 
 
 A husband is not entitled to a decree of nullity of marriage 
 
 (a) Comp. L. 1871, §§ 4734, 4766. 
 
 (6) Comp. L. 1871, § 4769. 
 
 (c) People V. Slack, 15 Mich. 193. 
 
 {d) Comp. L. 1871, § 4719. 
 
 (e) Comp. L. 1871, § 4787. 
 
 (/) Gaines v. Relf, 12 How. U. S. 472; Games v. Hennen, 24 How. U. S. 
 554; Carre v. Carre, 2 Yeates, 207; 2 Kent's Com. 79; Bishop on Mar. & 
 Div. § 205. 
 
 (?) 2 Add. 471; 2 Eng. Eccl. R. 381; 12 Jur. 174; 11 Queen's B. Rep. 173. 
 
5:3 BILLS FOE DIVORCE. 
 
 Reference to take Proofs — Injunctions in. 
 
 on the ground tliat the former husband of his wife obtained a 
 divorce by her fraudulent collusion, {a) 
 
 SECTION XVII. 
 
 EEFEEENOE TO TAKE PE00F8. 
 
 If any bill for divorce is taken as confessed, or the facts 
 charged are admitted by the answer, the complainant may, 
 upon due proof by affidavit of the regularity (5) of the pro- 
 ceedings to take the bill as confessed, or upon the bill and 
 answer, have an order of course, (c) entered for a reference to 
 a commissioner, to take proofs of all the material facts charged 
 in the bill, and to report such proof to the court, (<Z) with 
 his opinion thereon. And on such reference it shall be the 
 duty of the commissioner, in addition to the question put by 
 the parties, to make such full inquiries of the persons sworn, 
 as shall be necessary to arrive at the material facts of the 
 case. ((?) 
 
 This subject has been treated of quite fully heretofore. (/) 
 
 SECTION XVIII. 
 
 INJUNCTIONS IN. 
 
 The statute provides that " after the exhibition of a bill or 
 petition in a suit to annul a marriage, or for divorce or sepa- 
 ration, the court may either in term time or vacation, on pe- 
 tition of the wife, prohibit the husband from imposing any 
 restraint upon her personal liberty during the pendency of 
 the suit." ig) 
 
 (a) Kinnier v. Kinnier, 53 Barb. N. T. 454. 
 (6) Form 18. 
 (c) Form 19. 
 id) Form 20. 
 
 (e) Chancery Rule 96; see Rule 98, and Emmonsv. Emmons, Walk. Ch, 
 532; Walk. Ch. 48, and 16 Mich. 79. 
 (/) Chap. 6. 
 {g) Comp. L. 1871, § 4746. 
 
BILLS FOR DIVORCE. 659 
 
 Injunctions in. 
 
 Independent of this statute, the court has power to restrain 
 the husband from disposing of or incumbering his property, {a) 
 
 It may be stated, as a general rule, that pending proceed- 
 ings for a divorce, upon a proper case shown, the husband 
 may be restrained from interfering with the custody of the 
 children, or of property in the possession of the wife, (i) So 
 a husband will be enjoined from disposing of his property in 
 such manner as to prevent the wife from obtaining alimony 
 or a separate maintenance, on a bill pending for that pur- 
 pose, (c) 
 
 Mere apprehension of abandonment by the husband, and a 
 failure to support the wife, is not sufficient cause to warrant 
 the interposition of equity in restraining him from disposing 
 of his property, since injunctions are not usually allowed upon 
 mere apprehensions of future wrong, (d) And where a pre- 
 liminary injunction has been allowed in such a case, it will 
 be dissolved on the coming in of the answer denying any in- 
 tention on the part of the husband to abandon the wife, (e) 
 
 An injunction may be obtained by the wife to restrain the 
 husband from' incumbering as well as from gelling his prop- 
 erty, (y) But the wife will not be allowed in such case to re- 
 strain the husband from using his property for the support of 
 himself and his children, nor will he be enjoined from using 
 the tools and implements of his trade, or from carrying on 
 his ordinary business, {g) 
 
 On granting a decree of divorce in favor of the wife, it is 
 improper to perpetually enjoin the husband from selling his 
 property to insure the payment of alimony. (A) 
 
 (a) See, High on Injunctions, for full discussion. 
 
 (b) Wilson V. Wilson, Wright, 0. Ch. 129; Edwards v. Edwards, lb. 
 308. 
 
 (c) Questel v. Questel, Wright, Ch. 492; Johnston v. Johnston, lb. 454; 
 Bascomb v. Bascomb, lb. 632; Bicketts y. Bicketts, 4 Gill, 105; High on 
 Inj. § 843. 
 
 (d) Anshutz v. Anshutz, 1 C. E. Green, N. J. 162. 
 
 (e) High on Inj. § 844; Anshutz v. Anshutz, 1 C. E. Green N. J. 162. 
 (/) Vanzant v. Vanzant, 23 111. 536. 
 
 (g) Bose v. Rose, 11 Paige, Ch. 166; High on Inj. § 845. 
 (h) Erissman v. Erissman, 25 111. 136. 
 
560 BILLS FOR DIVORCE. 
 
 Defenses — Condonation. 
 
 SECTION XIX. 
 
 DEFENSES, 
 
 The defendant may appear, except, demur, plead or answer 
 the bill of complaint, as in other cases in chancery. 
 
 The defendant may set up in his answer, the adultery of the 
 complainant, or any other matter which would be a bar to a 
 divorce, separation or the annulling of the marriage contract; 
 and if an issue is taken thereon, it shall be tried at the same 
 time and in the same manner as other issues'of fact in the 
 cause, {a) 
 
 In any suit brought for a divorce on the ground of adul- 
 tery, although the fact of adultery be established, the court 
 may deny a divorce in the following cases : 
 
 First. When the oli'ense shall appear to have been com- 
 mitted by the procurement, or with the connivance of the 
 complainant. 
 
 Second. When the offense charged shall have been for- 
 given by the injured party, and such forgiveiless be proven 
 by express proof, or by the voluntary cohabitation of the par- 
 ties, with the knowledge of the offense. 
 
 Third. When there shall have been no express forgiveness, 
 and no voluntary cohabitation of the parties, but the suit 
 shall not have been brought within live years after the discov- 
 ery by the complainant of the offense charged, (b) 
 
 Condonation. — If the injured party cohabits with tlie 
 other subsequent to an adulterous offense, having the ability 
 to prove the offense, it will be a bar to a proceeding for 
 divorce, (o) But the effect of cohabitation, as condonation of 
 
 (a) Chancery Rule 97. 
 
 (6) Comp. L. 1871, § 4773. 
 
 (c) Davis V. Davis, 19 Hi. 334; Williamson v. Williamson, 1 Johns. Oh. 
 488; Johnson v. Johnson, 14 Wend., 637; S. C. 4 Paige, Ch. 460; S.C. 1 
 Edw. Ch. 439; PMllipaY. Phillips, A Blaoiif. 131; Hall y. Hall, il^.E. 
 462; Delliber v. DelUher, 9 Conn. 283; Anon. lb. 147; North v. North, 5 
 Mass. 320; Quincy v. Quincy, 10 N. H. 272; Master v. Master, 15 N. H. 
 
BILLS FOR DIVORCE. 561 
 
 Defenses — Condonation — Other Defenses. 
 
 adultery, is less bindint^ upon the wife than upon the hus- 
 band, (a) And condonation is always accompanied with 
 the implied condition tliat the injury shall not be repeated. 
 Thus, cruelty of an agg^-avated character may revive the 
 oflFense of adultery impliedly condoned, and when properly 
 brought to the knowledge of the court, during tlie pendency 
 of a suit for a divorce for adultery, will authorize a decree for 
 a divorce, (h) 
 
 Condonation of the adultery is a conditional forgiveness of 
 the offense, and a repetition of tiie adultery revives the 
 offense, (c) 
 
 Cohabitation, after extreme and repeated cruelty, is not a 
 bar to divorce for that cause, although it is so in cases of 
 adultery. The distinction between the cases seems to be 
 founded on a just conception of the conjugal relations, (d) 
 Although it has been held, that where a wife continued to live 
 with her husband after acts of violence, it is proof that she 
 did not consider herself in danger, (e) 
 
 Condonation on the part of the wife is not pressed with the 
 same rigor as condonation on the part of the husband; yet 
 where the wife has forgiven the husband for injuries inflicted 
 upon her, and the parties have become reconciled, courts are 
 averse to listen to the old grounds of complaint, (y) 
 
 OtJier defenses.— The statute does not require an answer to 
 
 159; Buchholts y. Buchholte, 24 Geo. 238; Armstrong v. Armstrong, 3 
 George, Miss. 279; Twyman v. Ticyman, 27 Mo. 383; Marsh v. Marsh, 2 
 Beasley, N. J. 281; Trumbull v. Trumbull, 23 Ark. 615. 
 
 (a) Johnsonv. Johnson, 1 Eclw. Ch. 439; Armstrong v. Armstrong, 3 
 George, Miss. 279; Uollister v. HolUster, 6 Barr, 449. 
 
 (6) Davis V. Davis, 19 111. 334; Odom v. Odoni, 36 Geo. 286; Armstrong 
 V. Armstrong, 27 Ind, 186; Farnham v. Farnham, 73 111. 497. 
 
 (c) Smith V. Smith, 4 Paige, Ch. 432; Johnson v. Johnson, lb. 460; 
 Collier v. Collier, 1 Dev. 352, 
 
 (d) HolUster v. HolUster, 6 Barr, 449; Whispell v. Whispell, 4 Barb. 
 217; Reese v. Reese, 23 A.la. 785; Nogees v. Nogees, 7 Texas, 538. 
 
 (e) Griffin v. Griffin, 8 B. Monr. 120; see Philliiis v. Phillips, 1 Brad- 
 well, App. Ct. R. 245. 
 
 (/) Davies v. Davies, 55 Barb. 130; Bowie v. Bowie, 3 Md. Ch, Decis. 51; 
 Sterling v. Sterling, 12 Geo. 201. 
 36 
 
562- BILLS FOR DIVORCE. 
 
 Defenses — ^Recrimination. 
 
 be sworn to, but provides that it need not, («) and is differeiit 
 from tlie general chancery practice in that respect. The stat- 
 ute having dispensed with such oath, the defendant acquires 
 no advantage by swearing to his answer in such a case. Such 
 a sworn answer has no more effect than the bill, and is not evi- 
 dence, (b) Bnt a verified answer may be read as an affidavit 
 on a motion for alimony, pendente lite, (o) 
 
 If the complainant is not a resident of tlie county where- 
 the suit is brought, and that fact does not appear upon the face 
 of the bill, tlie objection can onlj be raised by a plea. If a de-. 
 fendant proceeds to answer the bill, the objection of want of 
 jurisdiction is waived, (c?) ' 
 
 Nothing in an answer will be considered as impertinent 
 which tends to show the conduct of eitlier party against the 
 other. In addition to a denial of the treatment alleged in the 
 bill, the defendant may allege, in his answer, conduct on 
 the part of the complainant calculated to irritate and pro- 
 voke him, and to excite his jealousy or alienate his affections 
 from her. {e) 
 
 Recrimination. — A husband can not resist a divorce for 
 adultery by setting up desertion by the wife; {/) nor can a 
 wife set up cruelty of the husband as a defense to a bill filed 
 against her for adultery, {g) 
 
 Where a husband and wife each file a bill for divorce, the 
 one for cruelty and the other for adultery, and both the charges 
 are sustained, each will be considered a bar to the other, and 
 a divorce will be denied tovboth. (A) And see Chancery Rule 97. 
 
 If the party seeking a divorce on the ground of adultery 
 
 (a) Comp. L. 1871, § 4743. 
 
 (h) ConeDei/ v. Conesey, 60 111. 180. 
 
 (c) Anthony v. Anthony, 3 Stockt N. J. 70. 
 
 (d) Parker v. Parker, 61 Til. 369. 
 
 (e) Hopper v. Hopper, 11 Paige, Ch. 46. 
 
 (/) 4 Porter, Ind. R. 467; Wood v. Wood, 5 Ired. Eq. 674; but see Allen- 
 V. Allen, 4 Allen, Mass. 39. 
 (g) Betz V. Betz, 2 Rob. N. Y. 694; Monk v. Monk, 7 Rob. N. T. 153. ' 
 (h) Hoff V. Hoff, 48 Mich. (April Term 1882); Bibet v. Ribet, 39 Ala. 848. 
 
BILLS FOR DIVORCE, 563 
 
 Hearing and Decree — Forming an Issue. 
 
 lias been gnilty of the same offense, either before or after tlie 
 offense committed by the other, it is a conclusive bar to the 
 suit. («) But proof of adultery on the part of the complain- 
 ant is no bar to a divorce grounded on the subsequent adultery 
 of the defendant, if there has been an intervening condonation 
 of the complainant's offense. (5) 
 
 Cross-lills. — Cross-bills can be and are resorted to in di- 
 vorce, as well as other chancery cases, to obtain affirmative 
 relief. 
 
 SECTION XX. 
 
 nEAEING AND DECEEE. 
 
 Forming an issue. — The statute provides that suits to 
 annul or affirm a marriage, or for a divorce, shall be conducted 
 in the same manner of other chancery cases, (c) This being 
 trnei, the court may award issues to^be tried by a jary. And 
 it is especially provided by statute, that all issues lapon the 
 legality of a nlarriage, except where a marriage is sought to 
 he annulled on the ground of physical incapacity of one of the 
 parties, must be tried by a jury, id) 
 
 Issues awarded to be tried by jury must be confined not 
 only to facts put in issue by the pleadings, but to facts con- 
 cerning which some testimony has already been introduced 
 and read at the hearing. («) As a general thing, an issue can 
 only be granted at the hearing. (_/") 
 
 It would tend to promote justice, and aid the court in its 
 decree, if the jury were instructed to find on each issue raised 
 
 (a) Smith v. Smith, 4 Paige, Ch. 432; Paatoiet v. Pastoiet, 6 Mass. 276; 
 Chrlstianberry v. Christianberri/, 4Blackf. 203; Mattox v. Ufattojc, 2 Ham, 
 0. 233; Holmes v. Holmes, Walk. Miss. 474; Burdell v. Burdell, 2 Barb. 
 473; Leseuer v. Leseuer, 81 Barb. 330; Clapp v. Clapp, 97 Mass. 531. 
 
 (fc) Master v. Master, 15 N. H. 159. 
 
 (c) Comp. L. 1871, § 4744. 
 
 {d) Comp. L, 1871, § 5068. 
 
 (e) Dunn v. Dunn, 11 Mich. 284. 
 
 (/)Ibid. 
 
564 , b;lls for divorce. 
 
 Hearing and Decree — Directing Issues of Fact Tried by Jury — Proofs. 
 
 by the pleadings and proof, instead of finding a general 
 verdict, (a) 
 
 The issues, if there be more than one, should be distinct 
 and explicit, presenting in each a single question, so clearly 
 that it can not be misunderstood by the jury, and their verdict 
 should be responsive to each. (5) 
 
 No. 203. Order directing issues of fact to ie tried hy a jury 
 in a divorce suit. 
 
 {Oapfion, and title of cause as in No. 105, •Ax\'i& page 210.) 
 In this cause it is ordered, that upon the pleadings filed in 
 
 this cause, the following issues of fact be submitted to, and 
 
 tried by the jury, to wit: 
 
 1. Has the defendant committed adultery subsequently to 
 his marriage with the complainant, in manner and form as 
 charged in the bill? 
 
 2. Has the defendant been guilty of extreme and repeated 
 cruelty toward the complainant, in manner and form, as 
 charged in the bill? 
 
 (Let the questions corroa^-'ond with the issues presented hy 
 the pleadings.) 
 
 Proofs. — In all cases of divorce, whether at issue, or stand- 
 ing on the bill taken as confessed, the court may call upon the 
 complainant, or any witness thereto, to testify orally in open 
 court; and may make all necessary orders to secure the at- 
 tendance of such party or witness, and may suspend the hear- 
 ing of the cause from time to time, as often as may be neces- 
 sary to secure such attendance. In case of the neglect or re- 
 fusal of the complainant to attend and testify, the court may 
 dismiss the bill in the same manner as though said complain- 
 ant had made default at the hearing, (c) This rule is not sus- 
 pended by the statute, {d) which provides that neither hus- 
 band nor wife shall be examined as a witness for or against 
 the other, without the other's consent, (e) 
 
 (a)Errissman v. Errissman, 25 111. 136. 
 ib) Von Glahn v. Von Glahn, 46 111. 134, 
 
 (c) Ante page 190, Milk v. Moore, 89 111. 588. 
 
 (d) Chancery Rule, 99. 
 
 (e) Comi). L. 1871, § 5969. 
 
 {/) Hamilton v. Hamilton, 37 Mich. 603, 
 
BILLS FOR DIVORCE. 565 
 
 Hearing and Decree — Proofs. 
 
 When marriage is averred in the bill, and is confessed, or 
 not denied by the answer, it may be considered that an issue 
 on this allegation is waived, (a) 
 
 A court has no authority to decree a divorce on a bill taken 
 for confessed, without proof to sustain its allegations. The 
 court may, under tlie statute, examine witnesses orally in 
 court, or it may, under its general ciiancery powers, refer the 
 cause to the master to take proofs, or depositions in writing 
 may be used; but in some way, the facts, to justify granting 
 the divorce, must be proven to the court. (5) 
 
 And it is provided by rule that no sentence or decree of 
 nullity, declaring void a marriage contract, or decree for a di- 
 vorce, or for a separate or limited divorce, shall be made of 
 course, by the default of the defendant; or in consequence of 
 any neglect to appear at the hearing of the cause, or by con- 
 sent. And every such cause shall be heard after the trial of 
 the issue, or upon the coming in of the commissioner's report, 
 at a stated term court, (e) 
 
 In proceedings for a divorce, where the bill is taken for 
 confessed^ it is sufficient that the record shows proof was 
 heard sustaining the allegations of the bill, without preserv- 
 ing the evidence in the record, {d) 
 
 It is a provision of the statute upon divorce, that no decree 
 of divorce, or the nullity of a marriage, shall be made solely 
 upon the declarations, confessions or admissions of the par- 
 ties; but the court shall in all cases require other satisfactory 
 evidence of the facts alleged in the bill for that purpose, (e) 
 
 Wh^n there is nothing to hinder a party from taking his 
 proofs within the time allowed by the rules, and from cross- 
 examining the witnesses of his opponent, and he neglects to 
 
 (a) Harman v. Harman, 16 111. 85. 
 
 (ft) Sawyer v. Sawyer, Walk. Ch. 48; Eobinson v. Bobinson, 16 Mich. 
 79; Dawson v. Dawson, 18 Mich. 335; Porritt v. Porritt, 18 Mich. 426; 
 Bishop V. Bishop, 17 Mich. 217; ShilUngerY. ShilUnger, 14 111. 147. 
 
 (c) Chancery Rule, 98. See, also, rules 95 and 97. 
 
 (d) Dams v. Davis, 30 111. 180; Rawes v. Uawes, 33 111. 287; ShilUnger 
 V. ShilUnger, 14 111. 147. 
 
 (e) Comp. L. 1871, § 4772. 
 
566 BILLS FOR DIVORCE. 
 
 Hearing and Decree— Decree — "Wife Entitled to Do-*er. 
 
 do SO, he can not obtain leave afterward to bring in contra- 
 dictory testimony without a strong showing that justice re- 
 quires it; and that he has not been so far in fault as to have 
 forfeited his claim to favor, {a) 
 
 Testimony of matters largely drawn out by leading questions 
 and going but slightly, if at all, beyond the points suggested 
 by them, deserve in divorce cases but very little credence. (5} 
 
 Decree. — A divorce entered within two weeks after the cause 
 was brought to issue, there being no showing that the same 
 was brought on to be heard by stipulation, or that the defend- 
 ant was present at the hearing, or had notice of the same, was 
 held to be prematurely entered, (o) Where an answer is filed 
 but is afterward withdrawn, divorce should not be allowed 
 without a satisfactory showing that the withdrawal was vol- 
 untary and not collusive, {d) 
 
 When the complainant specially avers in his bill that the 
 acts were not done without connivance and collusion, he can 
 not, after decree, be heard in a proceeding to vacate the de- 
 cree, on the ground that the divorce was the result of collu- 
 sion, {e) To justify a decree on the ground of fraud, it must 
 be such as negative consent, without reference to previous in- 
 ducement. The fraud must be nearly coincident with the 
 time of marriage. (_/") 
 
 Wife entitled to dower. — When the marriage shall be dis- 
 solved by the husband being sentenced to imprisonment for 
 life, and when a divorce shall be decreed for the cause of adul- 
 tery committed by the husband, or for the misconduct or habit- 
 ual drunkenness of the husband, or on account of his being 
 sentenced to imprisonment for a term of three years or more, 
 the wife shall be entitled to her dower in his lands, in the 
 
 (a)McChmg v. McClung, 40 Mich. 293; Thayer v. Swift, Walk. Ch. 384. 
 (6) Richards v. Richards, 48 Mich. (Decided June 14, 1882). 
 
 (c) McKinney v. McKinney, 36 Mich. 37. 
 
 (d) Leavitt v. Leavitt, 13 Mich. 452. 
 
 (e) Simons v. Simons. 
 
 (f) Leavitt v. Leavitt, 13 Mich. 452. 
 
•BILLS FOR DIVORCE. 567 
 
 Hearing and Decree — Children, Legitimacy. 
 
 same manner' as if he were dead ; but she shall not be entitled 
 to dower in any oth'er ease of divorce, {a) 
 
 Children, legiivmacy. — "When a inarriage is dissolved on 
 account of a prior marriage of either party, and it shall ap- 
 pear that the second marriage was contracted in good faith, 
 and with the full belief of the parties that the former wife or 
 husband was dead, that fact shall be stated in the decree of di- 
 vorce or nullity; and the issue of such second marriage, born 
 or begotton before the commencement of the suit sliall be 
 deemed to be the legitimate issue of the parent who, at tiie 
 time of the marriage, was capable of contracting. (5) 
 
 Upon the dissolution, by decree or sentence of nullity of 
 any marriage that is prohibited on account of the consanguin- 
 ity or affinity between the parties, or of any marriage between 
 a white person and a negro, the issue of the marriage sliall l)e 
 deemed to be illegitimate, (c) 
 
 Upon the dissolution of a marriage on account of the non- 
 age, insanity or idiocy of either party, the issue of the mar- 
 riage will be deemed to be in all respects the legitimate issue 
 of the parent who, at the time of the marriage, was capable 
 of contracting. (cZ) 
 
 If there shall be any issue of a marriage annulled on the 
 ground of force or fraud, the court will decree tiieir custody 
 to the innocent parent, and may also make provision for their 
 education and maintenance out of the estate and property of 
 the guilty party. (^) 
 
 Where a decree of divorce is granted for the cause of adul- 
 tery committed by the wife, it shall not affect the legitimacy 
 'of the issue of the marriage, but tlie legitimacy of such chil- 
 dren, if questioned, may be determined by the court upon 
 the proofs in the cause; and in every cage, the legitimacy of 
 
 (6)Comp.L. 1871, §4756. 
 (a)Comp. L. 1871, §4763. 
 , -^ (6) Coinp. L. 1871, § 4764. 
 [c) Comp. L. 1871, § 4762. 
 {d) Comp. L. 1871, § 4770. 
 
668 BILLS FOR DIVORCE. 
 
 Hearing and Decree — Children, Custody of. 
 
 all children begotten before the commencement of a suit, will 
 be presumed until the contrary is shown, {a) 
 
 Children, Custody of. — The court may, on the application 
 of either party, make siich order concerning the care and cus- 
 tody of the minor children of the parties, and their suitable 
 maintenance during the pendency of such suit, as shall he 
 deemed proper and necessary, and for the benefit of the chil- 
 dren, (b) 
 
 Upon pronouncing a sentence or decree of nullity of a mar- 
 riage, and also upon decreeing a divorce, whether from the 
 bond of matrimony, or from bed and board, the court may 
 make such further decree as it shall deem just and proper, 
 concerning the care, custody and maintenance of the minor 
 children of the parties, and may determine with which of the 
 parents the children, or any of them, shall remain, (c) 
 
 By the Session laws of 1873, it is provided {d) the court 
 inay, from time to time, after decree on the petition of 
 either of the parents, revise and alter such decree concern- 
 ing the care, custody and maintenance of the children, or 
 any of them, and make a new decree concerning the same, as 
 tlie circumstances of the parents, and the benefit of the chil- 
 dren shall require, (e) But no new decree will be made upon 
 a petition exhibiting only such facts as were within the knowl- 
 edge of the petitioner before the decree was entered, and which 
 were appropriate to be considered in making the decree, {f) 
 A father is under legal obligation to provide for the support 
 of his children, even if they remain with the mother, after 
 divorce, (p') In case of separation of husband and wife, the 
 wife is entitled to the custody of all children under twelve, 
 
 (a) Comp. L. 1871, § 4761. 
 (l) Cornp. L. 1871, § 4747. 
 (c) Comp. L. 1871, § 4748. 
 {d) Laws, 1873, p. 203. 
 (e)Comp. L., 1871, § 4749. 
 
 (/) Chandler v. Chandler, 1A Mich. 176; Perkins v. Perkins, 12 
 Mich. 458. 
 
 (g) Courtright v. Cowtright, 40 Mich. 633. 
 
BILLS FOR DIVORCE. 569 
 
 Hearing and Decree — Restoration of Property to Wife. 
 
 find the husband of all children of twelve years and upwards? 
 But tlie Circuit Court in Chancery may make such orders con- 
 cerning the care and custody of children as it deems just, (a) 
 
 Restoration of property to wife. — Whenever the nullity of 
 a marriage, or a divorce from the bond of matrimony for any 
 cause excepting that of adultery committed by the wife, shall 
 be decreed, and when the husband shall be sentenced to im- 
 prisonment for life, and also upon every divorce from bed and 
 board, the wife shall be entitled to the immediate possession 
 of all her real estate, in like manner as if her husband were 
 dead. (5) 
 
 Upon every such dissolution of a marriage as is specified in 
 the preceding section, and also upon every divorce from bed 
 and board, the court may make a further decree for restoring 
 to the wife the whole, or such part as it shall deem just and 
 reasonable, of the personal estate that shall ha,ve come to the 
 liusbaiid by reason of the marriage, or for awarding to her the 
 value thereof, to be paid by her husband in money, (c) 
 
 Upon every divorce for adultery committed by the husband, 
 and upon every divorce from bed and board for any cause, 
 when any personal estate of the wife, or money in lieu there- 
 of, shall be awarded to her, as provided in tiie preceding sec- 
 tion, the court, instead of ordering the same to be delivered 
 or paid into the hands of the wife, may order it to be delivered 
 or paid into the hands of a trustee or trustees, to be a,ipoiiited 
 by the court, upon trust to invest the same, and to apply the 
 income tliereof to the support and maintenance of the wife, 
 and of the minor cliildren of the marriage, or any of them, in 
 such manner as the court shall direct. {^) 
 
 Such trustees shall also pay over the principal sum to the 
 wife and children of the marriage, when ordered by the court, 
 in such proportions, and at such times as the court shall 
 direct, regard being had, in the disposition of the said 
 
 (a) Laws, 1873, p. 282. 
 (6) Oomp. L. 1871, § 4750. 
 
 (c) Comp. L. 1871, § 4751. 
 
 (d) Comp. L. 1871, § 4752. 
 
570 BILLS FOR DIVORCE. 
 
 Hearing and Decree — Costs — Cohabitation after Divorce etc. 
 
 _ income, as well as of the principal sura, to the situation and 
 circumstances of the wife and children; and the said trustees 
 shall give such bonds as thte court shall require, for the faith- 
 ful performance of their trust, (a) 
 
 Whenever the court shall think proper to award to the 
 wife any of her personal estate, or any money in lieu thereof, 
 in pursuance of the foregoing provisions, such court may re- 
 quire the husband to disclose on oath what personal estate has 
 come to him by reason of the marriage, and how the same has 
 been disposed of, and what portion thereof still remains in 
 his hands. (5) 
 
 Upon petition by either of the parties, the court may, from 
 time to time, revise and alter its decree respecting the ap- 
 propriation and payment of the principal and income of the 
 property so held m trust, and may make any decree respect- 
 ing any of the said matters which such court might have 
 made in the original suit, (c) 
 
 Costs. — The court has power to decree costs, and -to enforce 
 its decree as in otlier cases, (d) When the wife has no 
 separate estate, costs will not be awarded against her. 
 
 Cohabitation after divorce. If parties cohabit together 
 after divorce, tiiey are guilty of adultery, (e) 
 
 No. 204 Decree for divorce pro confesso, with custod/y of 
 children. 
 
 State of Michigan. 
 
 The Circuit Court for the County of. . In Chancery. 
 
 AB, _ ^ 
 
 Complainant, \ 
 m. 
 CD, 
 
 Defendant. 
 
 At a session of said court, held at the court house in the 
 
 (a) Comp. L. 1871, § 4753. 
 (6) Comp. L. 1871, § 4754. 
 (c) Comp. L. 1871, § 4760. 
 {d) Comp. L. 1871, § 4744. 
 (e) Comp. L. 1875, § 4765. 
 
BILLS FOR DIVORCE. 571 
 
 Hearing and Decree — Decree for Divorce upon Pleadings and Proofs. 
 
 city of , in said county, on the da,y of , in the 
 
 the year one thousand eight hundred and . 
 
 Present, Hon. A J M, Circuit Judge. 
 
 This cause liaving been brought on to be heard upon the bill 
 of complaint filed therein, taken as contiessed by the defendant, 
 and upon the report of J M D, Esquire, one of the circuit 
 
 court commissioners for said county of , to whom it was 
 
 referred, by an order heretofore entered therein, to take proofs 
 of the material facts charged in such bill of complaint; there- 
 upon, on reading the bill of complaint, the report of such cir- 
 cuit court commissioner, and the proofs accompanying the 
 same, together with the opinion of said circuit court com- 
 missioner upon such proofs, from which it satisfactorily ap- 
 pears to this court, that the material facts charged in such bill 
 of complaint are true, and that the defendant, C D, has been 
 guilty of the several acts of cruelty therein charged, and, also, 
 that he is an unsuitable person to have the care, custody and 
 education of the minor child, E F, the issue of their said mar- 
 riage, and that the complainant, A B, is a suitable person to 
 have the care, custody and education of said minor child, E 
 F, on motion of J L H, Esquire, of counsel for said com- 
 plainant, it is ordered, adjudged and decreed, and this court, 
 by virtue of the authority therein vested, and in pursuance of 
 the statute in such case made and provided, doth order, adjudge 
 and decree, that the marriage between the said complainant, 
 A B, and the said defendant, D, be dissolved, and the same 
 is hereby dissolved, accordingly, and a divorce from the bonds 
 of matrimony, between said parties, is also adjudged and 
 decreed. And it is, also, further ordered, adjudged and de- 
 creed, that said complainant, A B, shall have the care, cus- 
 tody and education of the said minor child_, E F, aged 
 
 years, months, and ■ days, the issue of said marriage 
 
 between said parties, mentioned and named in the bill of 
 complaint in this cause, and that said minor child, E F, shall 
 remain with said complainant, A B, until said child shall 
 attain the age of fourteen years. A J M, 
 
 Circuit Judge, 
 (Couatersigned.) 
 T F G, 
 
 Register. 
 
 -ZVo. 205. Decree for dworce upon pleadings andproofs. 
 
 {Caption and title of cause as in No. 204.) 
 ^ Ihis cause came on to be heard upon pleadings and proofs 
 filed therein, and after hearing read the said pleadings and 
 
672 BILLS FOR DIVORCE. 
 
 Hearing and Decree — Decree for Divorce upon Terdict of a Jury. 
 
 proofs, tind after hearing arguments by solicitor for the 
 
 above named complainant, and solicitor for defendant, 
 
 and after due consideration of said pleadings, proofs and the 
 argument of counsel, and the court being fully advised in the 
 premises, and on consideration thereof, doth find that all the 
 material facts alleged in the said bill are true, and that the 
 defendant has committed adultery subsequently to his mar- 
 riage with the complainant; and that he is a person wholly 
 unfit to have the care, custody, control or education of chil- 
 dren. 
 
 It is therefore ordered, adjudged and decreed by the court, 
 that the marriage between the complainant and defendant be 
 dissolved, and the same is hereby dissolved accordingly; and 
 the parties are, and each of them is, freed from the obliga- 
 tions thereof. 
 
 It is further ordered, adjudged and decreed by the court, 
 that the complainant have the care, custody, control and edu- 
 cation of the said children, to wit., C B and C D, without any 
 interference on the part of the defendant, until the further 
 order of this court. 
 
 It M further ordered, that the defendant pay the costs of 
 this suit, and that execution issue therefor. And the court 
 reserves the consideration of alimony for a future order and 
 decree herein. A J M, 
 
 Countersigned, 
 
 T E G, Register. 
 
 Circuit Judge. 
 
 The above form can be varied to suit the particular case. 
 The court when it thinks proper, can dispose of the question 
 of alimony at the,hearing, and this is usually done in ^Michigan. 
 
 No. 206. Decree for divorce on the ground of extreme cruelty 
 upon verdict of a jury. 
 
 {Caption, and title of cause as in No. 204, ante.) 
 
 This cause having come on to be heard upon the bill of 
 complaint herein, the answer of the defendant thereto, and 
 the replication of the complainant to such answer; and a jury 
 having been called, selected and sworn, to wit: [Ilereinsert 
 the names of the jurors), to try the issue herein, viz.: whether 
 the defendant has been guilty of extreme cruelty toward the 
 complainant, in manner and form as charged in the complain- 
 ant's bill of complaint; and the said trial having proceeded, 
 and the said jury having heard the evidence offered by the re- 
 
BILLS FOE DIVORCE. ' 573 
 
 Alimony and Expenses. 
 
 Bpective parties, and the arguments of counsel, found the said 
 issue in the affirmative. 
 
 It is therefore ordered, adjudged and decreed, by the court, 
 that the marriage between the complainant and the defendant 
 be dissolved, and tlie same is hereby dissolved accordingly; 
 and the said parties are, and each of them is, freed from the 
 obligations thereof. And the court not being sufficiently ad- 
 vised as to the question of alimony in said cause, does reserve 
 the consideration thereof, until a future and further hearing 
 thereon. 
 
 A JM, 
 Circuit Judge. 
 Countersigned: 
 
 T F G-, Register. 
 
 SECTION XXI. 
 
 ALIMONY AND EXPENSES. 
 
 Alimony is either temporary or permanent. Temporary 
 alimony is that grunted pendente lite. 
 
 Alimony pendente lite is a common law right, and courts 
 of cliancery are bound to enforce it as much as any other pro- 
 vision of the common law. («) 
 
 When a suit is pending for a divorce, it is legally improper 
 for the parties to cohabit together, (i) This single fact, there- 
 fore, is sufficient to entitle the wife, who has not sufficient 
 property of her own, whether complainant or defendant, to 
 alimony during its pendency, (c) Upon the same principle, 
 the husband, who has all the money, while the wife has none, 
 is bound to furnish her, whether plaintiff or defendant, with 
 the means to defray her expenses in the suit; otherwise she 
 would be denied justice, {d) 
 
 (a) Story v. Story, Walk. Ch. 421; Petrie v. The People, 40 111. 334; see 
 Dinet v. Pfirshing, 86 111. 83. 
 
 (i) Sullivan v. Sullivan, 2 Add. 299; 2 Eng. Eccl. R. 814; Clowes x. Clowes, 
 9 Jur. 356; Bishop on Mar. and Div. § 527. 
 
 (c) Jones V. Jones, 2 Barb. Ch. R. 146; Holmes v. Holmes, Walker, Ch. 
 R. 474; Wilson v. Wilson, 2 Hagg. Ch. R. 203; A}-mstrong\. Armstrong, 
 35 111. 109. 
 
 [d) D'Aguilarx. D'Aguilar, 1 Hagg. Ch. R. 773, B Eng. Eccl. R. 329, 338; 
 
574 BILLS FOR DIVORCE. 
 
 Alimony and Expenses — How Obtained. 
 
 Where the wife has sufficient separate property of her own, 
 the reason for giving her either temporary alimony, or money 
 to defray her expenses in the suit does not.exist, and she will 
 not be entitled to either, (a) 
 
 The allowance of alimony pendente lite is discretionary 
 with the court. (5) It is therefore necessary that a meritorious 
 case be presented for its consideration. 
 
 The court will seldom deny alimony to the wife when she is 
 made defendant. If a man brings suit against his wife, he 
 should be prepared to furnish her means for her defense. 
 
 It is provided by statute, that in every suit, brought either 
 for a divorce or for separation, the court may, in its discre- 
 tion, require the husband to pay any sums necessary to enable 
 the wife to carry on or defend the smt during its pendency. 
 And it may decree costs against either party, and award exe- 
 cution for the same, or it may direct such costs to be paid out 
 of any property sequestered or in the power of the court, or in 
 the hands of a receiver, (o) 
 
 How obtavnJed. — The wife must apply to the court 'hj 
 special motion or petition. If adultery is charged against 
 her, she must deny, in her petition, the truth of the same, or 
 show a valid defense of condonation. (<Z) The petition must 
 allege that the wife has no means of her own. (e) The peti- 
 tion must be sworn to; it must state positively and specific- 
 ally the means and ability of the husband, as well as the situ- 
 ation of the wife. A copy of the petition must be served 
 
 6 Eng. Ecol. R. 372; Holmes v. Holmes, Walker, Ch. R. 474; Holmes v. 
 Holmes, 2 Lee, 90; Turst v. Tursf, 2 Lee, 92; Armstrong v. Armstrong, 35 
 111. 109; Logan v. Logan, 2 B. Monr. 142; Sose v. Eose, 11 Paige, Ch. 166; 
 Newman v. Newman, 69 111. 167. 
 
 (o) Ross V. Boss, 47 Mich. (Oct. Term, 1881); Storifv. Story, Walk. Ch. 
 421; Bishop on Mar. and Div. § 572; Poynt. on Mar. and Div. 260, 261; 
 Bartlett v. Bartlett, 1 Clarke, N. Y. 460. 
 
 (6) Bergen v. Bergen, 22 111. 187; see Blake v. Blake, 111. 623. 
 
 (c) Comp. L. 1871, § 4745. 
 
 (d) Osgood y. Osgood, 2 Paige, 261. 
 
 (e) RossM. Ross, 47 Mich. (Oct. term 1881); Story v. Story, Walk. Ch. 
 421. 
 
BILLS FOR DIVORCE. 575 
 
 - - 
 
 Alimony "and Expenses — Petition for Alimony pendente lite, and Expenses. 
 
 npon the solicitor of the opposite party, with notice, which 
 must not be less than fonr days, of the time when the appli- 
 cation will be presented to the court, (a) 
 
 No. 207. Petition for aliTnony, pendente lite, and expenses. 
 
 State or Michigan. 
 The Circuit Court for the County of . In Chancery. 
 
 AB, 
 
 Complainant, 
 m. 
 CD, 
 
 Defendant. 
 
 To the Circuit Court for the County of . In Chancery, 
 
 The petition of C D, of, etc., the above named defendant, 
 respectfully represents unto this honorable court, that the 
 complainant, A B, has lately filed his bill in this court, 
 against your petitioner, to obtain a decree dissolving the mar- 
 riage between him and your petitioner, charging your peti- 
 tioner with the crime of adultery {or whatever the charge 
 may ie)\ that your petitioner has put in her answer to the bill 
 of complaint denying such charge, as by reference to the said 
 answer, now on file in said cause, will more fully appear. 
 
 And your petitioner further represents, that she is wholly 
 destitute of the means of supporting herself during the pend- 
 ency of this suit, aiid of carrying on the defense, and defray- 
 ing the costs and expenses attending the same; that your 
 petitioner shows unto the court, that the said complainant is 
 the owner of the following property {here describe fully the 
 property of complavnant, and its' value). Your petitioner 
 also shows that the annual income of said complainant amounts 
 
 to tlie large sum of dollars. 
 
 Your petitioner, therefore, prays that the complainant may, 
 by an order of this court, be required to pay to your petitioner 
 a reasonable sum for her support and maintenance during the 
 pendency of this suit; and such sum or sums of money as 
 may be necessary to enable her to carry on her defense, to pay 
 solicitor's fees, and to defray the other necessary costs and ex- 
 penses thereof; and for such other and further relief in the 
 premises as to your honor may seem meet. C D. 
 
 GMB, 
 Solicitor for petitioner. 
 
 («) Longfellow v. Longfellow, 1 Clarke, N. Y. 344; 2 Barb. Ch. Pr. 268. 
 
576 BILLS FOR DIVORCE. 
 
 Alimony and Expenses— AflSdavit for Mimony pendente litg. 
 
 State OF Michig«n, 1 
 
 County of j 
 
 On this day of , A. D. 18 — , before me per- 
 sonally came the above named C D, and made oath that he 
 has heard read, the foregoing petition by her subscribed, and 
 knows the contents thereof, and that the same is true of her 
 own knowledge, except as to the matters which are therein 
 stated to be on her information or belief, and as to those mat- 
 ters she believes it to be true. 
 
 INW, 
 Notary Public, Oonnty, Michigan. 
 
 In applying for temporary alimony, it is well, in addition 
 to the petition, to procure affidavits from parties acquainted 
 with the pecuniary circumstances of the complainant, and 
 attach them to the petition. 
 
 JVo. 208. Affidavit in support of petition for alimony pen- 
 dente lite. 
 
 State or Miohigait. 
 
 The Circuit Court for the County of . In Chancery., 
 
 AB, 
 
 Complainant. 
 vs. 
 CD, 
 
 Defendant. 
 
 County, ss. 
 
 S K, of the township of , in said county and State, 
 
 bfeing duly sworn, deposes and says that he is years of 
 
 age; that he is acquainted with the parties to the above en- 
 titled cause, and has known them for years. Deponent 
 
 further says that * he is acquainted with the pecuniary cir- 
 cumstances of A B, the above named complainant, and ( here 
 set forth the description of the property that the affiant knows 
 tlwbt the complainant owns., with the opinion of the affiant as 
 to its value, and all other facts and circumstances (f henejit 
 to th^ petitioner). And further deponent says not. 
 
 Subscribed and sworn to b^pfe me this —. — day of , 
 
 A. D. 18—. ^' 
 
 I N W, 
 Notary Public, County, Mich. 
 
BILLS FOR DIVORCE. 577 
 
 Alimony and Expanses — Notice of Motion for Alimony — Hearing. 
 
 No. 209. Notice of motion for alimon/y, 
 
 {Title ofcouH and caused) 
 
 To , Solicitor for Complainant : 
 
 Sir : Tou will please to take notice, that npon , the 
 
 day of , A. D. 18 — , at the opening of court on said 
 
 day, or as soon thereafter as counsel can he heard, I shall 
 move the court for alimony and expenses in the above entitled 
 cause, in conformity with the prayer of a petition now on file 
 in said cause. Tou will also take nalice, that said motion 
 will be based upon the files and records of said cause, and 
 upon the petition of the defendant, D, and the affidavit of 
 S K, the annexed being true copies of said petition and aflB- 
 davit. 
 
 Dated at the day of , A. D. 18 — . 
 
 Yours, etc., 
 
 G M B, 
 Solicitor for defendant and petitioner. 
 
 Heating. — ^TJpon the day and hour upon which the j)etition 
 is noticed for hearing, the solicitor for the petitioner calls the 
 matter up in court, and reads his petition and the accompany- 
 ing affidavits, if he has any. When this is done, the solicitor 
 for the other party is entitled to read such counter afiidavits 
 as he may have, including the affidavit of his client. The 
 matter is then readj' for argument. The solicitor for the pe- 
 titioner is entitled to the opening and closing argument. It' 
 is not necessary that copies of the affidavits read in opposition 
 to the application, be served upon the solicitor for the peti- 
 tioner, xintil the petition and accompanying affidavits have 
 been read. The origjnals of the counter affidavits must then 
 he filed. The petition and affidavits annexed, must be filed 
 before the notice of the application is served. When there is 
 no appearance in opposition to the petition, the court must; 
 be satisfied by affidavit that copies of the petition and affida- 
 vit, and due arid proper notice of the motion was served, or 
 the matter will not be lieard. 
 
 Questions of guilt not considered. — The question of the 
 guilt or innocence of the wife will not be entered into in set- 
 37 
 
578 BILLS FOR DIVORCE. 
 
 Alimony and Expenses — Amount of Allowance — How Order is Enforced. 
 
 tling the allowanfee of alimony pendente lite, by hearing con- 
 flicting affidavits, {a) She must, however, in her petition for 
 alimony, deny the charges contained in the bill, or show some 
 valid defense to the husband's suit, unless she has denied it 
 on oath in her answer. (J) 
 
 The husband may, however, it is said, show that her mis- 
 conduct was so glaring that no aid should be given to her to 
 prosecute her suit; or, if she had been charged with adultery, 
 that she was still living with, the partner of her guilt, (c) 
 
 The amount of allowance. — The amount of the allowance 
 of ?t\\mony pendente lite, and for expenses, may be settled by 
 the court without a reference, whenever the facts are suffi- 
 ciently before it. {d) The whole matter rests in the discretion 
 of the court. The allowance will be limited to the actual 
 wants of the wife, until the result of the suit establishes her 
 right to a more liberal allowance, (e) The court will take 
 into consideration the nature and means of the husband, the 
 means and condition of the wife, and the claims of children. 
 When the husband is complainant, his poverty is no excuse, 
 and will not protect him on an application for alimony. If 
 lie can not pay, the court will suspend the suit until the ali- 
 mony is paid. If monthly or weekly alimony is allowed the 
 wife, it should be only in amount sufficient to satisfy her ne- 
 cessities, and not large enough to make it an object to pro- 
 long the suit. 
 
 How order is enforced. — The remedy for non-payment of 
 alimony, is by attacliment for contempt, and not by execu- 
 tion, {f) Non-payment of temporary alimony is contempt of 
 
 (a) Woodv. Wood, 2 Paige, Ch. 114; Oxgood v. Osgood, Id. 621; Smith 
 V. Smith, 1 Edw. Ch. 255. 
 
 (b) Osgood v. Osgood, 2 Paige, Ch. 621; Wood v.. Wood, lb. 114. 
 
 (c) Foivhr V. Fowler, 4 Abbott, N. Y. 412; see Griffln v. Griffin, 21 
 How. N. Y. 364; S. C. 2a How. N. Y. 189. 
 
 {d) Hammond v. Hammond, 1 Clarke, N. Y. 151; Mdnroy v. Monroy, 1 
 Edw. Ch. ,382. 
 
 [e) Haines v. Haines, 35 Mich. 138. 
 
 (./) NoHh V. North, 39 Mich. 67; Palmer v. Palmer, 45 Mich. 150; Laws 
 1877, p. 72; Haines v. Haines, -35 Mich. 138; Petrie v. People, 4 111. 234. 
 
BILLS FOR DIVORCE. 579 
 
 Alimony and Expenses — Order for Temporary Alimony. 
 
 court, and the party can be imprisoned therefor, {a) But a 
 proper demand and refusal must be shown, and there must 
 have been a reasonable time in which to pay, and a proper 
 hearing why the order is not complied with. (5) Tlie regular- 
 ity of the committal will not be reviewed on habeas corpus, 
 if regular on its face, (c) 
 
 An order granting temporary alimony being discretionary 
 and not appealable, it will not be considered collaterally on 
 appeal from proceedings for contempt, unless there has plainly 
 been an abuse of discretion, (d) 
 
 The proceedings for contempt for non-payment of alimony 
 is the same as in other cases, (e) 
 
 iTo. 210. Order for temporary alimony. 
 
 Caption, etc., as in No. 105). 
 
 In this cause the defendant's petition for alimony and ex- 
 penses pending the litigation, and to enable her to defend the 
 same, having been duly brought on to be heard, and on hearing 
 read the petition of said defendant and the affidavits in sup- 
 port thereof, and on reading and tiling the counter affidavits of 
 the said complainant, and after listening to the argument of 
 counsel, and the court being fully advised in the premises, it 
 
 is ordered and decreed, that said complainant within 
 
 days from the date of this order, pay to the solicitor for the 
 
 defendant dollars as a retainer in said cause; that he 
 
 pay to the defendant or her solicitor, the further sum of 
 
 dollars per month, each and etev'j month in advance, during 
 the pendency of this suit, commencing on the first day of 
 
 , A. D. 18 — ; and that he pay to the defendant or to her 
 
 solicitor the witness fees of said defendant, as they shall ac- 
 crue, and on demand, and all fees of officers and court ex- 
 penses, as they accrue and on demand, 
 
 A J M, 
 
 Countersigned: 
 T F G, Hegister. 
 
 Circuit Judge. 
 
 (a) Steller v. Steller, 25 Mich. 159. 
 (6) Bromn, v. Brown, 22 Mich. 299. 
 
 (c) Matter of Bissell, 40 Mich. 63. 
 
 (d) Haines v. Haines, 35 Mich. 138. 
 
 (e) Steller v. Steller, 25 Mich. 159. 
 
580 BILLS FOR DIVORCE . 
 
 Alimony and Expenses — Demand for Temporary Alimony — Payment of. 
 
 A certified copy of the order granting temporary alimony 
 should be served personally upon the husband, and also upon 
 his solicitor, and at the time the monej' becomes due and pay- 
 able, a written demand for the money, specifying the amount 
 due, should be served upon the husband. 
 
 No. 211. Form of demand for temporcury alimony. 
 
 {Title of court and cause.) 
 
 To 
 
 Complainant in the above cause. 
 
 Sir: — Please pay the bearer, the sum of dol- 
 lars, the same being the amount of money now due and un- 
 paid upon an order for alimony and expenses, made in the 
 
 above entitled cause by said court, on the day of 
 
 A. D. 18 — ; and you are hereby notified that the bearer has 
 full power and authority from me to demand and receive of 
 and from you the said sum of money, I being the solicitor for 
 said defendant, in the above entitled cause. 
 
 Dated day of A. D. 18—. 
 
 Yours, etc., 
 
 Solicitor for defendant. 
 
 Proceedings to compel payment of temrvporary alimony. — 
 At the time the above paper is served, a verbal demand for 
 the money due should be made by the party serving the 
 same. Upon the complainant refusing, or' contumaciously 
 neglecting to pay tlie amount due, the solicitor for the defend- 
 ant should prepare an afiidavit, siiowing the time, place and 
 circumstances surrounding the service of the certified copy 
 of the order for alimony; he should prepare an affidavit 
 showing service of the written demand, and showing the ver- 
 bal demand for the money; and he should prepare an afiida- 
 vit showing the amount of alimony due, the fact that it has 
 not been paid, and the refusal or neglect of the complainant 
 to pay the same. These affidavits and a true copy of the 
 written demand referred to in the affidavit of the person serv- 
 ing the same, and a true and certified copy of the order for 
 temporary alimony, may be presented to the court, ea; j>a/rte, 
 and it will grant an order for the complainant to show cause 
 
BILLS FOR DIVORCE. 581 
 
 Alimony and Expenses — Order to Show why Attachment should not Issue. 
 
 why an attachment should not issue to punish him for con- 
 tempt. The order to show cause should be made returnable 
 within a reasonable time, so as to give the complainant time 
 to prepare his defense. 
 
 Wo. 212. Order to show cause why attachment should not 
 
 issue. 
 
 (Caption, etc., as in Wo. 105.) 
 
 On reading and filing due proof of service of a certified 
 
 copy of an order made in this cause on the day of , 
 
 A. D. 18 — , on tlie complainant personally, and on read- 
 ing and filing due proof of a personal demand of payment of 
 the several amounts of money due and unpaid upon the said 
 order at the time of the service tliereof on the said complain- 
 ant, and that more than days since the said service of 
 
 said order and the said demand, have elapsed, and of said de- 
 fendant's neglect to pay the same, or to cause the same to be 
 paid, or any part thereof, on motion of solicitor for de- 
 fendant, ordered that said complainant, , appear before 
 
 this court, and show cause, on the day of , A. 
 
 D. 18 — , at the opening of court on that day, why a precept 
 or attachment should not issue against him, and he be punished 
 for his alleged neglect in not paying the several sums of 
 money mentioned in said order of this court, made on said 
 
 day of , A. D. 18 — . And his failure to comply 
 
 with the terras and requirements of said order. And it is 
 further ordered that a certified copy of this order be served 
 upon said complainant personally, on or before the — ■. — day 
 
 of , A. D. 18—. 
 
 AJM, 
 Circuit Judge. 
 Countersigned: 
 
 T F G, Register. 
 
 In addition to service, as required by the order, of a certi- 
 fied copy of the same, certified copies of the afiidavits and 
 papers on file, and upon which the order is based, should be 
 served on the complainant at the same time. 
 
 Upon the return day of the order to show cause, the de- 
 fendant calls the matter up in court, and the complainant may 
 read and file his answer to the order, and such other affidavits 
 as he may have to sustain it. The answer of the complain- 
 
582 BILLS FOR DIVORCE. 
 
 Alimony and Expenses — Attachment for Contempt^Return of SherifF. 
 
 ant, to the order, is usually in the form of an affidavit. The 
 defendant should file an affidavit showing^ due service of the 
 order to show cause. If sufficient cause is not shown by the 
 complainant, the court makes an order that an attachment is- 
 sue, and that the complainant be let to fail in a sum to be 
 named in the order, for his appearance on the return day of 
 the writ. , The return day of the writ should be uamed in the 
 order allowing the attachment. 
 
 Wo. 213. Attachment for contempt. 
 
 IN THE NAME OF THE PEOPLE OF THE STATE OF MICHIGAN, 
 
 To the sheriff of the county of Kalamazoo. 
 Greeting: 
 
 We command you that you attach , so as to have his 
 
 body before our circuit court, for the county of -. In 
 
 chancery, at the opening of said court, on , the day 
 
 of A. D. 18 — , there to answer unto us the charge of 
 
 misconduct and contempt, in his neglect and refusal to com- 
 ply with and obey an order of this court, made and entered 
 
 on the day of , A. D. 18 — , in the case of , 
 
 complainant, and , defendant, which he as allegedJiath 
 
 committed against us in said cause, then and still pending in 
 said court, and further perform and abide such order aa our 
 said court shall make in this belialf. And have you then and 
 there this writ, and make and return a certificate under your 
 band, of the manner in which you have executed the same. 
 
 Witness the Hon. A J M, Circuit Judge for the county of 
 
 , at the of the day of A. D. 18 — . 
 
 T F G, Register in Chancery. 
 
 Solicitor for defendant. 
 
 No. 214. Return of sheriff to attachtnent. 
 
 State of Michigan. ) 
 
 County of j 
 
 I, , sheriff of the county of , do hereby certify and 
 
 return; that by virtue of the within precept, I have taken -, 
 
 the within named defendant, whom I have let to bail, in pur- 
 suance to the order hereon endorsed by the court, in the sum 
 
 of dollars, with as surety, which bond, together 
 
 with this precept, I hereto attach and return. 
 
 Dated day of , A. D. 18—. Sheriff. 
 
BILIiS FOR DIVORCE. 583 
 
 Alimony and Expenses — Interrogatories in Proceedings for Contempt, etc. 
 
 The bon'd should run to the sheriff of the county; should 
 recite the issuing and return day of the precept, and should 
 he conditioned for the appearance of the complainant on said 
 return day. ' 
 
 Upon the return day, the court being satisfied by the re- 
 turn of the officer that the writ has been executed, and tlie 
 complainant appearing in court, the court makes an order re- 
 citing the former proceedings, briefly, and upon motion of the 
 solicitor for the defendant, orders that defendant file forthwith 
 interrogatories specifying the facts and circumstances alleged- 
 against the complainant, that a copy be served upon the com- 
 plainant, and that the complainant put in written answers to 
 such interrogatories on oath, and file tiie same on a day named 
 in the order, on the opening of court on that day. 
 
 No. 215. Form, of interrogatories in proceedings for an 
 
 tempt. 
 
 {Title of court and cause.) 
 
 Interrogatories to be exliibited on 'the part of the defend- 
 ant, for the examination of , complainant in tliis cause, 
 
 pursuant to an order made in said cause, on the dav of 
 
 ^, A. _D. 18—. 
 
 Fi/rst interrogatory : Are j-ou, etc. 
 
 Second interrogatory: Did you, etc. 
 
 The interrogatories are signed by the solicitor filing them. 
 
 No. 216. Answers to interrogatories in proceedings for con- 
 tempt. 
 
 {Title of court and cause.') 
 
 Answer of , the above named complainant, to the in- 
 terrogatories filed in this court by said defendant, on the 
 
 day of , A. D. 18—. 
 
 First: To the first interrogatory, etc. 
 
 Second: To the second interrogatory, etc. 
 
 Signed, 
 
 Complainant. 
 
 County 
 being duly sworn, deposes and says, that he dic- 
 
 State of Michigan, ) 
 
584 BILLS FOR DIVORCE. 
 
 Alimony and Expenses — Reference as to Alimony, pendente lite, etc. 
 
 tated each and every of the foregoing answers to the interrog- 
 atories filed against him in said cause; that lie so dictated 
 them after the corresponding interrogatory was read to de- 
 ponent, and that after the several answers were written out, 
 deponent heard eacli and every of them read, and knows the 
 contents thereof, and that the same is true of deponent's 
 knowledge and belief, except to the matters which are therein 
 stated to be on information and belief, and as to those mat- 
 ters he believes them to be true. 
 
 Complainant. 
 
 Subscribed and sworn to before me, this day of , 
 
 A. D. 18—. 
 
 E S E, 
 Notary Public, County, Mich. 
 
 The complainant may file afiidavits in support of, and in 
 confirmation of his answer, and the defendant counter affida- 
 vits. The court may adjourn the hearing from time to time 
 as justice may require, making an order to that eifect on each 
 adjournment, reciting the previous order, and ordering the 
 bond for appearance to be continued over until the day next 
 appointed for the hearing and argument. After the argu- 
 ments, the complainant may, by the order of the court, be 
 adjudged in contempt and ordered committed to the county 
 jail for a period named in the order, unless he sooner purge 
 himself of contempt by the payment of the money due, upon 
 which, the order recites, he shall be released from imprison- 
 ment. 
 
 JVo. 21T. Order of reference as to alimon/y pendente lite, and 
 
 expenses. 
 
 {Caption and title of cause as im, No. 105, ante.) 
 
 On reading and filing the petition of the defendant in this 
 cause, duly "verified, and the afiidavits accompanying the 
 same, and the afiidavits by the complainant in opposition 
 thereto, and upon hearing the arguments of the counsel for 
 the respective parties, and the court not being sufficiently ad- 
 vised in the premises, doth order that it be referred to J M 
 D, one of the circuit court commissioners of said county, to 
 inquire and report what would be a reasonable sum to be al- 
 lowed to the defendant for her support and maintenance dur- 
 
BILLS FOR DIVORCE. 585 
 
 Alimony and Expenses — Report of Commissioners as to Allowance of Al'y. 
 
 ing the pendency of this suit. And it is further ordered, that 
 the said commissioner inquire and report what would be a 
 reasonable sum to be allowed to the defendant, to enable her 
 to carry on her defense in this suit, and to defray the neces- 
 sary costs and expenses thereof; and that the said commis- 
 sioner report as to the times and manner in which the said 
 suins should be paid by the complainant. 
 
 No. 218. Report of commissioner as to allowance of ali- 
 mony. 
 
 {Title of cowrt cmd cause.) 
 
 To the Circuit Court for the County of . In Chancery. 
 
 In pursuance of an order of this court, entered on, etc., 
 whereby it was referred to me, the undersigned, a circuit 
 court commissioner of said county, to inquire and report what 
 would be a reasonable sum to be allowed, etc. {as in the order), 
 I, the said commissioner, do report: 
 
 That having given due notice to the respective parties of 
 the time and place of the hearing thereof, and having been 
 attended by the solicitors for the complainant and defendant 
 respectively, and having heard the allegations and proofs as to 
 the value of the complainant's {or defendant's) estate at the 
 time of the commencement of this suit, and the allowance 
 proper to be made, I certify and report, that the complainant 
 {or defendant) has real estate, to wit, etc. {here describe it), 
 
 of the value of about dollars, the yearly income of which 
 
 is about dollars ; that tlie whole personal property of the 
 
 complainant {or defendant) consists of, etc., and its value is 
 about — — dollars; that two children of the complainant and 
 defendant live with and are entirely supported by, etc., one 
 
 being a boy, aged years, and the other a girl, aged 
 
 years. 
 
 I further report that, in my opinion, the sum of dollars 
 
 a year, payable monthly, is a suitable allowance for the pres- 
 ent separate maintenance and alimony of the defendant {or 
 complainant), that it ought to be payable from, etc. ; that 
 
 dollars would be a reasonable sum to be allowed to the 
 
 defendant {or complainant) to enable her to carry on her de- 
 fense {or prosecution), and defray the necessary costs and ex- 
 penses in this suit; and that my fees amount to — : — dollars. 
 
 All of which is respectfully submitted. 
 
 Dated, etc. ' J M D, 
 
 Circuit Court Commissioner, 
 County, Michigan. 
 
586 BILLS FOR DIVORCE. 
 
 Alimony and Expenses — Confirming Commissioner's Report of Alimony, etc. 
 
 No. 219. Order corvfirmvng commissio.ner'a report of ali- 
 
 mom/, etc. 
 
 {Caption, arid title of cause as in iVo. 105, ants.) 
 
 And now, on this . day, comes J M D, a commissioner of 
 this court, and makes report of what would be a reasonable 
 sum to be allowed, etc. {as in report), and the court having 
 heard the arguments and allegations of the counsel for the 
 respective parties, in support of and against the confirmation 
 of said report, and having considered the same, and being 
 fully advised in the premises, 
 
 It is ordered, that the report of the commissioner afore- 
 said, be, and the same is in all things, approved and confirmed; 
 and that i\\e com'^\A\n&nt {or defendanf) do pay to the defend- 
 ant, etc. {As in the report.) 
 
 No. 220. Short form of decree for alimony, etc., pendente 
 lite, and expenses without reference. 
 
 {Caption arvd title of cause as in No. 105, ante.) 
 
 And now, on this day came the complainant, by L M, her 
 solicitor, and the defendant, by R S, his solicitor, and this 
 cause coming on to be heard upon the application of the com- 
 plainant for zXvaxovi-^, pendente lite., and the court having heard 
 the evidence, and the arguments of counsel for the respective 
 parties, and being fully advised in the premises, doth order, 
 adjudge and decree, that the defendant pay to the complain- 
 ant, or her solicitor, the sura of dollars, on, etc., and that 
 
 he pay to the complainant, or her solicitor, the further sum of 
 
 dollars, on or before the first day of each and every month, 
 
 commencing on, etc., for her support during, the pendency of 
 this suit. 
 
 Permanent alimony. — The power to grant permanent ali- 
 mony is statutory, {a) Upon every divorce from the bond of 
 matrimony, for any cause, except that of adultery, commit- 
 ted by the witie, and also upon everj- divorce from bed and 
 board for any cause, if the estate and eflfects awarded to the 
 wife (5) shall be insufficient for the suitable support and main- 
 tenance of herself and such children of the marriage as shall 
 
 (a) Peltier v. Pltier, Har. Ch. 19; Perkins v. Perkins, 16 Mich. 167. 
 (fc) Ante, p. 569. 
 
BILLS FOR DIVORCE. 587 
 
 Alimony and Expenses — Permanent Alimony. 
 
 be committed to her care and custody, the court may further 
 decree to her such part of the personal estate of the liusband, 
 and such alimony out of his estate, real and personal, to be 
 paid to her in gross, or otherwise, as it shall deem just and 
 reasonable, having regard to the ability of the husband, and 
 the character and situation of the parties, and all the other 
 circumstances of thp case, (a) 
 
 In all cases where alimony or other allowance shall be de- 
 creed to the wife or children, the court may require sufficient 
 security to be given by the husband for the payment thereof, 
 according to the terms of the decree, and upon his neglect or 
 refusal to give such security, or upon his failure to pay such 
 alimony or allowance, the court may award execution for the 
 collection of the same, or may sequester his real and personal 
 estate, and appoint a receiver thereof, and cause such personal 
 estate,, and the rents and profits of such real estate, to be ap- 
 plied to the payment thereof. (5) 
 
 In case the real estate of the husband shall consist wholly 
 or in part of wild and uncultivated lands, or any other un- 
 productive estate, the court shall have power, in its discretion, 
 to provide for the payment of such alimony or other allow- 
 ance, by the sale of such lands or estate, in such manner as 
 the court shall direct, (c) 
 
 Any court of chancery may review any decree of said court 
 allowing alimony on petition of either party, and may alter and 
 amend such decree whenever it shall, from evidence, become 
 satisfied, that any error occurred in estimating the amount of 
 property of the husband, at the date of such decree, decreed 
 to pay alimony, and for any cause arising after the date of 
 such decree, {d) 
 
 After a decree for alimony, or other allowance for the wife 
 and children, or either of them, the court may, from time to 
 time, on the petition of either of the parties, revise and alter such 
 
 (a) Comp. L. 1^75, § 4755; Amended Laws 1877, p. 72. 
 
 (b) Comp. L. 1871, § 4759; Amended Laws 1877, p. 32. 
 
 (c) Comp. L. 1871, § 4759 j Amended Laws 1877, p. 32. 
 
 (d) Ibid. 
 
588 BILLS FOR DIVORCE. 
 
 Alimony and Expenses — Permanent Alimony. 
 
 decree respecting the amount of such alimony or allowance, 
 and the payment thereof, and may make any decree respect- 
 ing any of the said matters which snch court might have made 
 in the original suit, (a) But such revision can only be made 
 on new facts afterward transpiring, of such a character as to 
 make the change necessary and proper. (5) 
 
 As provided by the statute, the award of alimony may be 
 in gross instead of annual allowances, (c) and this is favored 
 in all cases where the husband would be likely to vexatiously 
 delay the payment, (d) An allowance of a sum in gross in 
 lieu of alimony, is a bar to all further claims therefor, (tj) 
 
 The allowance of alimony for the wife is discretionary with 
 the court, and so also is the allowance for the maintenance of 
 infant children {/) And the Supreme Court will not disturb 
 the decree of the court below on a question of alimony, unless 
 manifest injustice has been done, (g) 
 
 Alimony will be granted in proportion to the wants of the 
 party asldng it, and the ability of the person who is to pay 
 it. And it may at any time be increased or diminished, (h) It 
 will be allowed in such form as will best meet tlie condition 
 of the parties, and make the provisions a sure reliance. The 
 court may decree the lands of the defendant to the complain- 
 ant in fee, and may change, after the decree, the allowance in 
 any manner consistent with equitable principles. ( z) When 
 the income of the husband is not sufficient for the support of 
 all dependent upon it, and the parties have been accustomed 
 to rely upon their joint labor for support, the allowance ought 
 
 (a) Comp. L. 1871, § 4760. 
 
 (6) Perkins y. Perkins, 12MicK4o6; Chandlery. Chandler, iHlick. 176. 
 
 (c) Hamilton v. Hamilton, 37 Mich. 6i)3. 
 
 {d) McClung v. McClung, 40 Mich. 494. 
 
 (e) Plaster v. Plaster, 47 III. 290. 
 
 (/) Bergen v. Bergen, 22 111. 187; Plaster v. Plaster, 67 111. 93. 
 
 (9) Stewartson v. Stewartson, 15 111. 145; see Ross v. Ross, 78 111. 402. 
 
 \h) Foote V. Foote, 22 111. 425; Parker v. Parker, 61 111. 869. 
 
 ( i) Wheelery. Wheeler, 18 111. 39; Arm trongv. Armstrong, 35 111. 109; 
 Bergen v. Bergen, 22 111. 189; Joliff v. Joliff, 32 111. 527; see Von Glahn 
 V. Von Glahn, 46111. 134; Keating v. Keating, 48 111. 241; PUstery. Plas- 
 ter, 53111. 445; Wightman y.Wightman, 45 IE. 167. 
 
BILLS FOR DIVORCE. 589 
 
 Alimony and Expenses — Enforcement — Decree for Permanent Alimony. 
 
 not to be so large as to relieve the wife from doing anything 
 for her support, (a) 
 
 Upon a decree of divorce, instead of directing that the de- 
 fendant be perpetually enjoined from selling his property, and 
 that he be imprisoned until he give bond and security for the 
 payment of alimony, the decree should make the alimony a 
 lien upon his realty, to be secured by mortgage; the sale to 
 be enjoined until such mortgage be completed. (5) 
 
 En/f or cement. — The remedy for non-payment of permanent 
 alimony is by execution, (c) Attachment will not lie. {d) 
 
 Where a decree was made, directing a sum allowed for ali- 
 mony to be paid in several future payments, and directing a 
 sale on default, a sale made after all the payments had matured, 
 but without any adjudication of the non-payment, and without 
 any further hearing or decree, was held illegal and invalid, (e J 
 An allowance for alimony should be appealed from and not 
 attacked collaterally, {f) An allowance for temporary alimony 
 is interlocutory, and can not be appealed from, (cf) 
 
 Wo. 221. Decree for permanent alimony. 
 
 [Caption, and title of cause as in No. 105, ante.) 
 
 This cause 'again coming on to be heard, as to the allow- 
 ance of alimony to be paid by the defendant to the complain- 
 ant, upon the bill of complaint herein, the answer thereto, 
 the replication of the complainant to such answer, and the 
 proof's taken in said cause, and the court having heretofore 
 rendered a decree in said cause, dissolving the marriage be- 
 tween the complainant and defendant, and having reserved 
 the consideration of the question of alimony, and the counsel 
 for the respective parties having been heard, and the court 
 
 (rt) BrowA V. Broim, 22 Mich. 242. 
 
 {h) Errisman v. En-igman, 25 III. 136; Keating v. Keating, 48 111. 242. 
 (c) Tat/lor v. Gladiiin, 40 Mich. 232; Palmer v. Palmer, 45 Mich. 150. 
 Laws 1877, p. 72. 
 (rf) Korth V. North, 39 Mich. 67. 
 (e) Perkins v. Perkins, 16 Mich. 161. 
 (/) Tai/lor V. Gladnin, 40 Mich. 232. 
 (g) Mayheiv v. Cooler, 40 Mich. 528; Lapham v. Lapham, 40 Mich. 527. 
 
590 BILLS FOR DIVORCE. 
 
 Alimony and Expenses — Decree for Permanent Alimony. 
 
 being fully advised in the premises, and on consideration 
 thereof; 
 
 It is ordered, udjvdged and decreed, by the conrt, that the 
 
 defendant pay to the complainant the sum of dollars, 
 
 during each and every year, commencing on, etc., and payable 
 quarterly in advance, until further ordered by this court; and 
 that the defendant pay the costs of this suit to be taxed by the 
 
 clerk of this court, within days from the rendition of 
 
 this decree; and that in default of the payment of any of said 
 sums, in the manner, and at the times herein provided, that 
 execution issue therefor. 
 
 It is further ordered, adjudged a/nd decreed, by the court, 
 that this decree shall be and remain a lien upon all the lands 
 and tenements of the defendant, until the defendant shall exe- 
 cute a good and sufficient mortgage upon his real estate, or so 
 much thereof as may be necessary to secure the prompt pay- 
 ment of the sums herein ordered to be paid, and such mort- 
 gage be approved by the court, or under its direction. 
 
 A J M, 
 Circuit Judge. 
 Countersigned: 
 
 T F G, Kegister. 
 
SEPARATE MAINTENANCE. 591 
 
 When Granted. 
 
 CHAPTER XXXIIL 
 
 SEPAEATE MAINTENANCE. 
 
 Section 1 . When Granted. 
 
 2. Proceedings to Obtain. 
 
 3. Defenses to. 
 
 4. Practice in, and Decrees. 
 
 SECTION I. 
 
 ■WHEN GRANTED. 
 
 A divorce from bed and board forever, or for a limited time, 
 may be decreed for the cause of extreme cruelty, whether 
 practiced by using personal violence, or by any other means; 
 or for utter desertion by either of the parties for the term of 
 two years; and a like divorce may be decreed on the complaint 
 of the wife, when the husband, being of sufficient ability to 
 provide a suitable maintenance for her, shall grossly or wan- 
 tonly and cruelly refuse or neglect so to do. (a) 
 
 The party exhibiting the bill or petition, must have resided 
 in the State one year, immediately preceding the filing of the 
 same; the marriage must have been solemnized in this State, 
 and the complainant have resided therein, from the time of 
 snch marriage, to the time of exhibiting the bill. (5) 
 
 The bill must aver that the acts done, and cause of divorce 
 from bed and board charged, were committed without the 
 privity or procurement of the complainant, and that the bill 
 is not founded on, nor exhibited in consequence of any collu- 
 sion, agreement or understanding whatever, between the 
 parties, or between the complainant and any other person. 
 
 In the case of a separation sought on the ground of cruel 
 
 (a) Coiiip. L. 1871, § 4739) see, also, amte p. 545, 551. 
 (6) Coap. L 1871, § 4741. 
 
592 , SEPARATE MATNTENANCE, 
 
 When Granted. 
 
 and inhuman treatment, it was held, in JNew Tork, that the 
 cruelty which will entitle the party to such a judgment, is 
 that kind of cruelty which endangers the life or health of the 
 complainant, and renders cohabitation unsafe, {a) But to 
 constitute cruelty, bodily injury or acts of personal violence, 
 are not necessary. It is made out if there is a series of un- 
 kind treatment, accompanied by words of menace, creating 
 a reasonable apprehension that bodily injury may result unless 
 prevented; and the word "unsafe," in. the New York statute, 
 means the same thing. (5) Words of menace, accompanied by 
 a probability of bodily violence, will be suflBcient; and it may 
 be enough if he inflict indignity merely, and threatenpain. (e) 
 
 But the causes for apprehension must be weighty, and show 
 an impossibility that the duties of the marriage life can be 
 discharged, {d) Thus, the husband's refusal to permit his 
 wife to attend church, of which ,she is a member, is not a 
 ground for separation, (e) Nor is occasional, or even frequent 
 intoxication a ground for separatiftn ; nor do occasional sallies 
 of passion, from whatever cause, amount to legal cruelty, so 
 long as they do not threaten bodily harm. (,/) As we have 
 already seen in considering the subject of extreme cruelty and 
 failure to support, upon pages 545 and 551, ante, the above is 
 scarcely the law in Michigan. We refer the reader to the 
 chapter upon divorce wherein we have considered these topics. 
 
 An allowance will not be allowed to a wife on account of 
 the cruelty of her husband, if the violence complained of was 
 induced by a sufficient provocation on her part. (^) 
 
 As to a proceeding for separate maintenance, on the ground 
 of abandonment, it has been held that there must be shown 
 both an abandonment and a neglect to provide. (A) 
 
 (a) Perry v. Perry, 2 Paige, Ch. 501. 
 
 (6) Mason v. Mason, 1 Edw. Ch. 278, 291; 2 Kent's Com. 126. 
 (c) Wkispell V. Whispell, 4 Barb; 217; 2 Van Santv. Eq. Pr. 262, 263. 
 id) See ante, p.— 2 Kent's Com, 126; Whispell v. Whispell, 4 Barb. 217. 
 (e) Lawrence v. Lawrence, 3 Paige, Ch. 267; and see Burr v. Burr, W 
 Paige, Ch. 20. 
 (/) Mason v. Mason, 1 Edw. Ch. 278. 
 
 (g) Boyd v. Boyd, Harper, S. C. Eq. 141; Griffin v. Griffin, 8 B. Monr. 120. 
 ( Ahrenfelt v. Ahrenfelt, Hoff. Ch. 47; see Bahhitt v. Bahhitt,^^ 111. 277. 
 
SEPARATE MAINTENANCE. 693 
 
 Proceedings to Obtain — Wltere Commenced — Injunction, etc. 
 
 For any of the grounds of divorce, alluded to in the pre- 
 ceding chapter, a bill for separate maintenance, no doubt, 
 could be maintained. A wife may have sufficient grounds for 
 a full divorcCj yet may not desire, for reasons satisfactory to her- 
 self, to proceed to that extremity; in which case she may have 
 a separate maintenance under the provisions of the statute. 
 
 SECTION II. 
 
 PEOCEEDINGS TO OBTAIN. 
 
 Where commenced. — The suit must be commenced in the 
 county where the parties or one of them resides, (a) 
 
 T/ie hill. — The bill for a separate maintenance may be 
 framed substantially as a bill for a divorce, except that the 
 prayer is different. The prayer should be for the care, custody 
 and education of the children, if any, and that the defendant 
 be compelled to make proper and suitable provision for the 
 support and maintenance of the complainant and the children. 
 
 Injunction. — If an injunction is deemed necessary to re- 
 strain the husband from disposing of, or incumbering his 
 property, or from interfering with the complainant, or the 
 children, during the pendency of the suit, the facts to justify 
 such injunction may be set forth in the bill as in a suit for a 
 divorce. 
 
 Wo. 222. Sill for separate maintenance. 
 State of. Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Your oratrix, A B, of, etc., respectfully represents unto this 
 honorable court, that she is a resident of the said county of 
 
 ; and has resided in said State for more than one year 
 
 last past; that on, etc., your oratrix was married to one 6 B, 
 the defendant hereinafter named, at, etc., and continued to 
 live with the defendant C B as his wife ever since said mar- 
 riage until, etc., when your oratrix was compelled to abandon 
 
 (a) Comp.L. 1871, §4738. 
 38 
 
594 SEPARATE MAINTENANCE. 
 
 Proceedings to Obtain — Bill f8r Separa,te Maintenance. 
 
 the defendant C B for the causes hereinafter set forth; that 
 dnring the time yonr oratrix and the defendant coliabited as 
 husband and wife, they had two children, namely, E B and 
 
 F B, the said E B being aged years, and the said FB 
 
 years. 
 
 Your oratrix further represents, that during the time your 
 oratrix and the defendant cohabited as husband and wife, your 
 oratrix faithfully discliarged all her duties as such wife, and 
 at all times treated him with kindness and forbearance; but 
 that the defendant, a few months alter said marriage, com- 
 menced a course of unkind, cruel and inhuman conduct to- 
 ward her, which continued until she filially separated from 
 himon, etc. ; and that on divers occasions, while she lived 
 with the defendant, he was guilty of such extreme and re- 
 peated cruelty toward her as to render it unsafe and improper 
 for her to live with him; that oh, etc. {Specify the particu- 
 lar acts of cruelty^) ' 
 
 Your oratrix lurther represents, that the defendant is a man 
 of violent passion and ungovernable temper; that on many 
 occasions he addressed to your pratrix the most opprobrious 
 epithets, and threats of personal violence, and has repeatedly 
 threatened to take her life; that in consequence of the cruel 
 and inhuman treatment and threats aforesaid, and such con- 
 duct as to render it unsafe for her to live with or remain near 
 
 him, your oratrix was obliged, on the said day of, etc., to 
 
 leave the house of tiie defendant, and seek refuge with her 
 friends, since which time she has not dared to return to the 
 defendant's house, or live with him. 
 
 Your oratrix further represents, that the defendant is seized 
 and possessed of real and personal estate to about the amount 
 
 of dollars; and that his annual income is at least 
 
 dollars; and he is a strong, healthy man, and abundantly able 
 to take care of and support his family; but hfe has refused and 
 neglects to provide for the support and maintenance of your 
 oratrix; that your oratrix has no property or income of her 
 own, and is now entirely dependent upon the charity of her 
 friends for support. 
 
 And your oratrix positively avers that the act done and 
 charged in this bill of complaint, for which separate mainte- 
 nance is sought, were committed without the consent, conniv- 
 ance, privity or procurement of your oratrix, and that such 
 bill is not founded on, or exhibited in consequence of any 
 collusion, agreement or understanding whatever, between the 
 parties thereto, or between yonr oratrix and any other person; 
 
 Forasmuch, therefore, as your oratrix is without remedy in 
 
SEPARATE MAINTENANCE. 595 
 
 Solicitor for Complainant, and of Counsel — Defenses to. 
 
 the premises, except in a court of equity, and to the end that 
 tlie said OB, who is made party defendant to this bill, njay be 
 required to make full and direct answer to the same, hut not 
 binder oath, the. amwer under path being hereby waived; that 
 the defendant may be compelled to make a proper and suit- 
 able provision for the, (Separate maintenance and support of 
 your oratrix and the said children, according to the statxite in 
 such case made and provided; and that your oratrix may have 
 the care, custody and education of the said children of said 
 marriage; ' and that yonr oratrix may have such other and fur- 
 ther relief in the premises as equity may require, and to your 
 honor shall seem meet. 
 
 May it please the court, the premises being considered, to 
 grant unto your oratrix, the most gracious writ of subpoena, 
 of the people of the State of Michigan, to be issued out of and 
 under the seal of this honorable court, to be directed to the 
 said C B, therein and thereby commanding him, on a certain 
 day and under a certain penalty, to be therein inserted, per- 
 sonally to be and appear before this honorable court, then and 
 thereto answer all and singular the said premises, and to 
 stand to and abide and perforin such order and decree therein^ 
 as shall be agreeable to equity and good conscience. And 
 your oratrix will ever pray, etc. A B. 
 
 NHS, 
 
 Solicitor for complainant, and of counsel. 
 
 State OF Mi'chigan, ) ' 
 
 County of \ ' 
 
 On this day of , A. D. 18 — , before me personally 
 
 came the above named , and made oath that she has 
 
 heard read, the foregoing bill of complaint by her subscribed, 
 and knows the contents thereof, and that the same is true of 
 her own knowledge, except as to the matters which are there- 
 in stated to be on her information or belief, and as to those 
 matters, she believes it to be true. T E S, 
 
 Notary Public, County, Mich. 
 
 SECTION III. 
 
 DEFENSES TO. 
 
 The same defenses that are applicable to a suit for a divorce, 
 apply to proceedings of this nature, {a) 
 
 (a) See ante, page 560. 
 
596 SEPARATE MAINTENANCE. 
 
 Practice in, and Decrees — Reference to Master. 
 
 SECTION IV. 
 
 PEACTICE IN, AND DECEEES. 
 
 The proceedings to a decree are the same as in divorce 
 cases. 
 
 An allegation in the bill of cruel treatment, and that the 
 husband has wantonly and cruelly neglected and refused to 
 provide for his wife, being of sufficient ability, has been held 
 to be sufficient, without specifying particular acts, (a) 
 
 After a decree is made from bed and board, the court may 
 make such further decree as it shall deem just and proper 
 concerning the care, custody and maintenance of the minor 
 children of the parties^ and may determine with which of the 
 parents they or any of them shall remain, (b) 
 
 In case of an application for a divorce from bed and board, 
 although a decree for such divorce be not made, the court may 
 make such order or decrej 'or the support and maintenance 
 of the wife and children, or any of them, by the husband, or 
 out of his property, as the nature of the case may render suit- 
 able and proper. 
 
 When a decree of divorce from bed and board, forever, or 
 for a limited time, shall have been pronounced, it may be re- 
 voked at any time thereafter, under such regulations and re- 
 strictions as the court may impose, upon the joint application 
 of the parties, and their producing satisfactory evidence of 
 their reconciliation. 
 
 Reference to master. — The court may order a reference to a 
 commissioner to take proof of the matters alleged in the bill, so 
 far as they are controverted. And it would seem to be the 
 general practice in like cases to direct a commissioner to take 
 proof, and report upon the situation and circumstances in life 
 of tlie respective parties, to enable the court to make a proper 
 decree in reference to the amount of allowance to be made to 
 
 (a) Brown v. Brown, 22 Mich. 242. 
 (6) Comp. L. 1871, § 4748. 
 
SEPARATE MAINTENANCE. 597 
 
 Practice in, and Decrees — Report as to the Evidence and Allowance. 
 
 the wife. If the facts are sufficiently before the court, no 
 order of reference is necessary, {a) 
 
 Wo. 223. Report of commissioner as to the evidence and al- 
 lowance. 
 
 {Title of cause, address, etc., as in JVo. 99, ante, page 191.) 
 
 In pursuance of an order of this court, in the above enti- 
 tled cause, dated on, etc., whereby it was referred to me, the 
 undersigned, one of the circuit court commissioners of said 
 county, to take the proof of tlie respective parties, and report 
 the same to the court; and to inquire and report as to the value 
 of the defendant's estate at the time of the commencement of 
 the said cause; and the situation and circumstances of tlie 
 respective parties; and what would be a reasonable sum to be 
 allowed to the complainant for her support and maintenance, 
 and the support and maintenance of such of the children of 
 the marriage as reside with her; and also as to the time and 
 manner in which said sums should be paid to the complain- 
 ant; I, the said commissioner, do report: 
 
 That having given notice to the parties respectively of the 
 time and place when and where the testimony would be taken, 
 and having been attended by the solicitors for the complain- 
 ant and defendant, and having caused to come before me all 
 such witnesses as the respective parties desired or made knovvn 
 to me, I did, on, etc., at, etc., proceed to take the proofs of the 
 respective parties; and the several witnesses attending having 
 been severally sworn, and examined by me, touching the mat- 
 ters aforesaid, I reduce their testimony to writing, and have 
 attached the same hereto, and make the same a part of this 
 report. 
 
 I would further report, that in my opinion the complainant 
 is entitled to a decree for separate maintenance, against the 
 defendant, for the causes set forth in her bill of complaint; 
 and that the defendant has real estate of the value of about 
 
 dollars, the yearly income of which is about 
 
 dollars; that the whole personal property of the defendant 
 
 consists of, etc., and its value is about dollars. That 
 
 two children of the complainant and defendant live with, and 
 are entirely supported by the complainant, one being a boy 
 aged years, and the other a girl aged years. 
 
 1 further report, that, in my opinion, the sum of 
 
 (a) Hammond v. Hammond, 1 Clarke, 151; Monroy v. Munroy, 1 Edw. 
 Ch. 382. 
 
598 SEPARATE MAINTENANCE. 
 
 Practice in, and Decrees — Amount of Allowance. 
 
 dollars a year, payable monthly, it) a suitable allowance for 
 the present separate maintenance of the complainant; that it 
 ought to be payable from the commencement of this suit; 
 that such allowance be made subject to be increased or de- 
 creased in the future as circumstances ma.y be shown to re- 
 quire; that my fees herein amount to dollars. 
 
 All of which is respectfully submitted. 
 
 Dated, etc. S. W. 0. 
 
 Circtrit Court Commissioner. Conuty, 
 
 Michigan. 
 
 Amount of allowance. — It is the duty of the commissioner 
 to take proof of the ppcnniary circumstances of the husband, 
 and of the condition in life and pecuniary necessities of the 
 wife and any children she may have to support, in order to 
 fix the amount which, in his opinion, is proper to be contrib- 
 uted by the husband fqr her ' support weekly, monthly, or 
 othervpise. 
 
 This amount should be fixed with reference not only to the 
 husband's property and ihcome, but also the claims of his 
 children and others upon him for sustenance and education, 
 and his ability to provide for himself and family by his own 
 exertions, (a) , 
 
 The allowance, pending the suit, is always much smaller in 
 proportion than that which is assigned to the wife as a perma- 
 nent' provision after she has established her right to a 
 separation. (5) 
 
 It is,' in general, limited to ■ the actual wants of the wife 
 until the result of the suit in her favor establishes her right 
 to a more liberal allowance, and it will be estimated accord- 
 ing to the expense of board and clothing at the place where 
 her relations reside, if she select that as the place of her resi- 
 dence, unless the expense of living there is dispropprtioned 
 to the property of her husband, (o) 
 
 (a) Lawrence v. Lawrence',' 3 Paige, Ch. 267; Amos v. Amos, 3 Green, 
 N. J. Ch. ni; Turner v. Turner, 44 Ala. 437. 
 
 (6) lb.; Morrell v. Morrell, 2 Barb. S. C. E. 480. 
 . ,(c) Germond v. Germoad, 4 Paigs, Ch,. ,643; Burr v. Burr, 10 Paige, 
 Ch. 20. 
 
SEPARATE MAINTENANCE. 599 
 
 Practice in, and Decrees — Modification of Allowance. 
 
 . i . 
 
 Tlie poverty of the husband, though no reason for refusing 
 to order an allowance, ia to be considered with the circum- 
 stances in life of the parties, in fixing the amount, {a) Even 
 if he has no property, and depends merely upon his labor for 
 support, he may be compelled to apply a part of his daily 
 earnings to this purpose. (5) 
 
 Where a separation is decreed, and the wife's conduct is 
 blameless, an allowance equal to what the law gives her on 
 the death of her husband is reasonable, (c) Thus, in a judg- 
 ment for separation on the ground of abandonment, a pro- 
 vision that the wife have the use of one-third of his real es- 
 tate during her life, and the same proportion of his personal 
 estate absolutely,-was held to be proper, (d) 
 
 In adjudging the amount of allowance, the husband's estate 
 will be presumed to yield a reasonable income, unless the con- 
 trary be shown, with a sufficient reason for its unproductive- 
 ness; and the reduction of the husband's estate by gifts can 
 not be allowed to diminish the wife's alimony, (e) 
 
 Modification of allowance. — The allowance in the final de- 
 cree is subject to modification from time to time, and, leave 
 should be given in the decree to apply for such modification 
 as the changing circumstances of the parties may render 
 
 (a) Hallock v. Halloctr, 4 How. N. T. 160. 
 
 (6) lb.; Kirbi/ v. Kirby, 1 Paige, Ch. 261; Prince r. Princs, 1 Rich. S. 
 C. Ch. 282; see Bailei/ v. Bailey, 21 Gratt. Va. 43. 
 
 (c) Thornberrtj v. Thornberry , 4 Litt. 252; Pechford r. Pechford, 1 
 Paige, Ch. 274; Burr v. Burr, 7 Hill, Ch. 207. 
 
 (d) Fiskli V. Fishli, 2 Litt. 337; Miller v. Miller, 6 Johns. Ch. 91; Burr 
 V. Burr, 10 Paige, Ch. 20. 
 
 (e) Forrest v. Forrest, 5 Bosw. 672. 
 
 (/) Forrest v. Forrest, 3 Abbott, N. Y. 144; Lockridge v. Lockridge, 2 
 B. Monr. 258; Rogers v. Vines, 6 Ired. Eq. 293; Wheeler v. Wheeler, 18 
 111. %^;WaUroni. Waldron, 5 P. F. Smith, Pa. 281; Fisher v. Fisher, 
 32 Iowa, 20. 
 
600 SEPARATE MAINTENANCE. 
 
 Practice, in, and Decrees — Decree for Separate Maintenance. 
 
 No. 'iii\. Decree for a separate mamtencmce. 
 
 {Caption a/nd title of cause as in No. 105 ante.) 
 
 This cause having come on to be heard upon the bill of 
 
 complaint herein, the answer of the defendant thereto, the 
 
 replication of tlie complainant to such answer, and the proofs 
 
 taken in this cause, filed herein, and the court having heard 
 
 the arguments of the counsel for the respective parties, and 
 
 .being fully advised in the premises, doth find that the allega- 
 
 !tions in the said bill contained are true, as therein stated; and 
 
 I that tlie equities of this cause are with the complainant. 
 
 \ It is therefore ordered, adjudged amd decreed, by the court, 
 
 ' that the complainant is entitled to a separate maintenance 
 
 from the defendant; and that she be allowed, and that the 
 
 defendant do pay to the complainant the sum of dollars a 
 
 year, commencing from the date of the filing of the complain- 
 ant's bill of complaint herein, to wit, from, etc., and that the 
 
 said sum be paid in monthly installments of dollars each, 
 
 payable in advance, on the day of each and every month, 
 
 until the further order of the court; and it is further ordered, 
 adjudged and decreed, that this decree be and remain a lien 
 on the real estate of the defendant, until he shall have given 
 security for its faithful performance, to the satisfaction of the 
 court or to the complainant, and that the defendant pay the 
 costs of this suit; and in case of default in the payment of 
 the said installments of money as the same become due, or 
 the costs herein, that execution issue thereon; and that either 
 party be at liberty to apply to the court as circumstances may 
 require. 
 
SUITS FOR MAINTENANCE. 601 
 
 When Proper — Practice and Proceed' ngs. 
 
 CHAPTER XXXIV. 
 
 SriTS FOE MAINTENANCE. 
 
 Section 1. When Proper. 
 
 2. Practice akd Proceedings. 
 8. Hearing and Decree. 
 
 SECTION I. 
 
 WHEN PEOPEE. 
 
 By the common law, a suit for maintenance, without pray- 
 ing divorce from bed and board, or from the bond of mar- 
 riage, will not lie. But the statute provides, that whenever a 
 husband shall, without good and sufficient cause, desert his 
 wife, or shall have deserted his wife, or being of sufficient 
 ability to support her, shall neglect or refuse to properly pro- 
 vide for and suitably maintain her, being a resident of this 
 State, the circuit court in chancery of any county in this State, 
 in which said husband and wife shall reside, shall, on the ap- 
 plication of the wife by petition, allot, assign, set apart and 
 decree to her as alimony, the use of such part of her husband's 
 real and personal estate as the court may determine, in its dis- 
 cretion, and during the pendency of the proceeding may re- 
 quire the husband to pay such sums to carry on the proceed- 
 ing, or for her support, as it shall deem necessary, in like as 
 provided by section four thousand seven hundred and forty- 
 five of the compiled laws of eighteen hundred and seventy- 
 one, in case of suits for divorce, (a) ^ 
 
 SECTION II. 
 
 PEACIICE AND PEOCEEDINGS. 
 
 In every proceeding pursuant to the preceding section, the 
 proceedings and practice therein shall be the same, as near as 
 
 (o) Laws 1873, p. 203. 
 
602 SUITS FOR MAINTENANCE. 
 
 Practice and Proceedings — ^The Petition — Petition for Support and Main'ce. 
 
 may be, as is now provided for by law in cases of a petition 
 or bill for divorce and alimony, and the circuit court in chan- 
 cery shall have and exercise the same power and authority 
 therein, (a) 
 
 The petition. — It is not necessary that the petitioner shall 
 have resided in the State for one year. All that the petition 
 need show with regard to residence is, that the husband is a 
 resident of the State. It would seem necessary to aver non- 
 collusion, as in bills for divorce. 
 
 Ifo. 225. Petition for support and mavntencmce. 
 
 State o;f Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 The petition of A B, of the township of , county and 
 
 State aforesaid, respectfully represents unto this honorable 
 court, that on the day of , A. D. 18 — , your peti- 
 tioner was married to one C D, defendant herein, and that the 
 said C D is a resident of this State, and resides in the town- 
 ship of , county and State aforesaid. 
 
 Your petitioner further represents, that since her said mar- 
 riage, she has been to the said defendant a true and faithful wife, 
 and has done all in her power' to retain the love, good will 
 and support of the said defendant. 
 
 Your petitioner further represents that the said defendant, 
 without good and sufficient cause, has deserted your petition- 
 er, and lives separate and apart from her, and though of suffi- 
 cient ability to support her, the said C D, absolutely refuses 
 and neglects to properly provide for and suitably maintain 
 your petitioner, he, the said C D, being a resideat of this State 
 as aforesaid. 
 
 Your petitioner further represents to the court, that the 
 defendant is seized and possessed of real and personal estate 
 
 to about the amonnt of dollars, and that his personal 
 
 estate consists of {here setit forth), and his real estate is known 
 and described as follows, to wit {Here insert description.) : 
 Your petitioner shows that the defendant is a strong and 
 healthy man, and abundantly able to take care of and support 
 your petitioner, but he refuses so to do, and your petitioner 
 
 (o) Ibid. 
 
SUITS FOR MAINTENANCE. 603^ 
 
 Hearing and Decree — Custody of Children. 
 
 has no property ov income of lier own, and is now entirely 
 dependent upon the charity of har friends for support. 
 
 And. your petitioner posit.ivelj' avers that the acts done and 
 charged in tKis petition, were committed withoutthe consent, 
 connivance, privity or procurement of your petitioner, and 
 that this petition is not founded on, or exhibited in conse- 
 quence of any collusion, agreement or understanding whatever 
 betweeh the parties hereto or between your petitioner and any 
 other iperson. 
 , Forasmuch as your petitioner Js \y;ithout remedy in the 
 preiTiises, except in a court of equity, and to the end that the 
 said C D, the defendant herein, may be required to make full, 
 and direct answer to this petition, but not imder oath, the an- 
 swer undeT oath heing hereby waived; that the court may, 
 during tlie pendency of this proceeding, assign and decree to 
 your petitioner, the possession of tlie following described real 
 estate, the pi'operty of said defendant, to wit: Qienfe d^esoribe 
 it), and that this honorable court may decree a fixed sum for 
 the support of your petitioner, tlie same to be payable quarter- 
 ly, and to 'be secured upon the real estate of said defendant; 
 that during the pendency of this proceeding the defendant 
 shall be required.to pay such sums to carry on the same, as 
 the court shall deeni necessary, and that your petitioner shall 
 have such further relief and such other relief, as shall be 
 agreeable to equity and good conscience. 
 
 {Add prayer for process, and nerifiodtion as in dimoroe 
 bills.) "' ' ^ ' 
 
 Ityunction. — An injunction may be allowed as in divorce 
 proceedings, and if desired it must be set forth in the bill as 
 in suits for divorce. 
 
 SECTION HI. 
 
 HEARING AND DECKEE. 
 
 Custodj/ of children. — In all proceedings brought pursu- 
 ant to this act, the court may order and decree concerning 
 the care, custody and maintenance of the minor children of 
 the parties, and may determine with which of the parties the 
 children, or any of them, shall remain, (a) 
 
 (a) Laws 1873, p. 203. , 
 
Wi SUITS FOR MAINTENANCE. 
 
 . = i — 
 
 Hearing and Decree — Assignment of Property to Wife, etc. 
 
 Assignment of property to wife. — Daring the pendency of 
 the proceeding, the court may assign and decree to the wife 
 the possession of any of the real and personal estate of the 
 husband. («) 
 
 Support of wife and, children. — The court may decree the 
 payment of a fixed sum of money for the support of such wife 
 and minor children, and that the payment of the same be 
 secured upon real estate or otherwise, at such times and in 
 such manner as may be proper, and may enforce the perform- 
 ance of such decree by the sale of the real estate of the hus- 
 band or otherwise, as may be necessary. (J) 
 
 Court may change allowance. — And the court shall have 
 power to change the allowance from time to time, according 
 to circumstaivces, and may revoke such allowance altogether 
 on satisfactory proof of a voluntary and permanent reconcilia- 
 tion: Provided,., however, that such allowance shall be only 
 during the joint lives of such husband and wife, (c) 
 
 (a) Laws 1873, p. 204. 
 (6) Laws 1873, p. 204. 
 (c) Laws 1873, p. 204. 
 
BILLS TO QUIET TITLE. 605 
 
 When Proper, and Nature of. 
 
 CHAPTER XXXV. 
 
 BILLS TO QUIET TITLE. 
 
 Section 1. When Proper, and Nature of. 
 
 2. Forms of Bills. 
 
 3. Form of Dbcree. 
 
 SECTION I. 
 
 ■WHEH PEOPEB, AND NATUEE OF. 
 
 Any person having the actual possession, and legal or 
 equitable title to lands, may institute a suit in chancery against 
 any other person setting up a claim thereto in opposition to 
 the title claimed by the complainant, and if the complainant 
 ahall establish his title to such lands, the defendant shall be 
 decreed to release to the complainant all claim thereto, and 
 pay costs, unless the defendant shall, by his answer, disclaim 
 all title to such lands and give a release to the complainant, 
 in which case costs shall be awarded as the court may deem 
 just, {a) 
 
 Irrespective of the statute, when a party has an equitable 
 cause of action against another, coming within any recognized 
 rule of equity jurisdiction, such as the canceling and deliver- 
 ing up of invalid conveyances, etc., such right can be enforced 
 in equity, whether the complainant is in possession or not. (&) 
 It will be seen that by its terms the statute is confined to cases 
 in which the complainant is in possession, and is therefore nn- 
 
 (a.) Comp. L. 1871, § 5072. 
 
 (i) King v. Carpenter, 37 Mich. 366; Meth. Church v. Clark, 41 Mich. 
 739; Rowland v. Doty, Har. Ch. 7; Whipple v. Farrar, 3 Mich. 437; Salis- 
 bury V. Miller, 14 Mich. 160; King v. Harrington, 14 Mich. 532; Ormsby 
 V. Barr, 21 Mich. 474; Ormsby v. Barr, 22 Mich. 80; Jones v. Smith, 22 
 Mich. 366. 
 
606 BILLS TO QUIET TITLE. 
 
 ' — i— — ~ 
 
 When Proper, and Nature of. 
 
 able to institute a suit to test the validity of the defendant's 
 claim, but would be compelled to wait until the defendant 
 should choose to assert his claim by suit. In the meantime 
 the real owner would be liable to lose the evidence to sustain 
 his right, {a) The jurisdiction of equity' is intended to reach 
 persons out of possession, who can not for that reason be com- 
 pelled to try their rights at law. It is not intended to reach 
 legal proceedings when they can be had without obetruction. (5) 
 Equity is not the proper tribunal for settling titles to land, (c) 
 
 But a court of equity has jurisdiction to set aside a title 
 procured by fraud ; {d) or to establish an equitable title of the 
 complainant, where the defendant is in possession under a 
 legal title, (e) 
 
 A bill to quiet the title to lands, will not lie by one in pos- 
 session, who does not first show some right, legal or equi- 
 table. (/) ■ 
 
 The rule seems to be, in cases of bills to remove clouds upon 
 titles, that where the claim of an adverse party to land is vahd 
 upon tl^e face of the instrument, or the proceedings sought to 
 be set aside, and it requires the establishment of extrinsic facts 
 to show the supposed conveyance to be inoperative and void, 
 a court of equity may interfere to set it aside as a cloud upon 
 the real title to the land, and order the same to be delivered 
 up and canceled, {g) 
 
 (a) Holbrooke. Winson, 23 Mich. 897; Moran v. Palmer, 13 Mich. 368. 
 (6) BarrOns v. Bobhins, 22 Mich. 42; Stockton v. Williams, Walk. Ch'. 
 120; Stockton v. Williams, 1 Doug. 546. 
 
 (c) Blackwood v. Van Vleet, 11 Mich. 255; Devaux v. Detroit^ Har. 
 Ch. 98. 
 
 (d) Nelson v. Rockwell, 14 111. 375; Kennedy v. Northup, lo 111. 152. 
 
 (e) Shai/ V. Norton, 48 111. 105, 106, and cases there cited. 
 
 (/) Stark \. Starr, 6 Wallace, 402; Kings v. French, 5 Chicago Legal 
 News, 470; Hopkinsv. Granger, 52 111. 504; West v. Schnebly, 54 111. &'2a; 
 Hoar T. Harris, 11 111. 24; Bowles v. Mc Allen, 16 111. 30; Hutchinson v. 
 Howe, 100 111. 11; Oakley v. Hurlbut, lb. 204; Gage v. Abbott, 99 111. 366. 
 
 ig) Reed v. Tyler, 56 111. 288; Hamilton v. Cummings, 1 Johns. Ch. 517; 
 Pettit V. Shepherd, 5 Paige, Ch. 493; Piersall v. IHlliott, 6 Pet. 95; Ward 
 v. Dewey, 16 N. Y. 519; Coulson v. City of Portland, 1 Deadly, 481; Fonda 
 V. Sage, 48 N. T. 173; Mulligan v. Baring, 3 Daley, N. Y. 75; Crookey. 
 Andrews, 40 N. Y. 547. 
 
BILLS TO QUIET TITLE. 607 
 
 When Proper, and Nature of. 
 
 A bill in equity which states only a pretended title in the 
 defendant, and prays for relief against it on the ground of an 
 apprehended injury, can not be maintained, (a) But it need 
 not show that the claim set up by the defendant is one which 
 would be ^arima facie good at law; nor need it set forth the 
 ground upon which the defendant asserts the validity of his 
 title, {h) 
 
 Before a bill will lie, there must be some equity that 
 can not be enforced at law. (c) It will not lie to remove a 
 cloud, when the cloud appears to be supported by an equitable 
 right in the defendant, {d) Fraudulent acquisition of posseS' 
 sion by one who has his remedy by ejectment, will not author- 
 ize him to file a bill, (e) If a complainant averh possession 
 of premises, but is not shown to be in actual possession 
 against a defendant shown in possession, nothing appearing to 
 prevent proceedings at law the bill can not be maintained. {/) 
 
 Ih a suit under the statute to quiet title, a complainant is 
 only bound to make out a presumptively good title, if not re^ 
 butted, {g) If there be no adverse holding, possession of a 
 part of the premises in the right of the entire estate is suffi- 
 cient. (A) The bill may include parcels held under the, same 
 title contracted to others and in their possession, {i) 
 
 When purely legal titles are brought into litigation under 
 the statute, the statutory requisites must exist; but the equi- 
 table remedies existing before the passage of the statute re- 
 main, (h) 
 
 A bill in equity to quiet title will lie in favor of an occu- 
 
 (o) Torrent v. Booming, 22 Mich. 354. 
 (h) Holbrooh v. Winson, 23 Mich. 394. 
 
 (c) Barrens v. Bobbins, 22 Mich. 85; Jenkins v. Bacon, 30 Mich. 164; 
 Blachwood v. Van Vleet, 11 Mich. 252; Tabor v. Cook, 15 Mich. 322. 
 {d) Torrent v. Muskegon Boom Co., 22 Mich. 21. 
 (e) Stetson v. Cook, 39 Mich. 755. 
 (/) Barrons v. Bobbins, 22 Mich. 35. 
 
 [g) Hall V. Kellogg, 16 Mich. 135; .Rayne>' v. Lee, 20 Mich, 384; Hanscom 
 T. Hinman, 30 Mich. 419; Hardy v. Powell, 40 Mi:h, 4.3. 
 [h] Fitzhugh v. Barnard, 12 Mich. 104. 
 (i) Eaton v. Trotebridge, 38 Mich. 754. 
 U) Ormsbij v. Barr, 22 Mich. 80; Tabor v. Cook, 15 Mich. 322. 
 
608 BILLS TO QUIET TITLE. 
 
 When Proper, and Nature of. 
 
 pant of part of a house against ono who, having entered 
 another part bj the complainant's permission, remains there, 
 claiming title to the whole house under a deed alleged by the 
 plaintiff to be a forgery, (a) 
 
 Where a grantor in possession asserts that the deed was in 
 tended as a mortgage, the grantee may maintain a bill to 
 quiet title, unless the grantor has the legal title and no inter- 
 vention of equities renders the remedy at law incomplete. (5) 
 
 A complainant whose grantors had purchased land of the 
 United States, and who is in actual possession thereof, may 
 come into equity for protection against the claims of a defend- 
 ant under a subsequent patent from the State, who had never 
 been in actual possession, (c) A bill to quiet title to an entire 
 estate, will lie even when an action of ejectment is pendini^ 
 against a distinct part of the land, if judgment for the defend- 
 ant therein would still leave the title in dispute, (d) 
 
 A cloud upon a title, is an apparent incumbrance upon it, 
 or an apparent defect in it. Something showing a privia 
 fdcie right, either to the whole or to some interest in it, in a 
 third party, (e) It rests upon a title so long as it is question- 
 able ifdefendant's title is not prima facie better than the com- 
 plainant's. (/") A bill to remove a cloud can not be sustained 
 which deduces complainant's title through a judicial sale, 
 where the proceedings were the basis of such sale, and upon 
 which the validity of complainant's title depends, are shown 
 to be void for jurisdictional defects, (g) 
 
 If a tax has no semblance of legality a,nA prima facie, it is 
 wholly unwarranted by law, or for any reason totally void, so 
 that a person inspecting the record and comparing it with the 
 law, is at once apprised of the illegality, it is not a cloud, for 
 
 (a) Sullivan v. Finnegan, 101 Mass. 447; see Gould v. Stemlui-y, 84 111 
 170. 
 (6) Shays v. Norton, 48 HI. 100. 
 
 (c) Dale V. Turner, 34 Mich. 406. 
 
 (d) Eaton v. Trowbridge, 38 Mich. 454. 
 
 (e) Detroit v. Martin, 34 Mich. 173. 
 
 (/ ) Eaton V. Trowbridge, 38 Mich. 4"j4. 
 (g) Griswold v. Fuller, 33 Mich. 268. 
 
BILLS TO QUIET TITLE. 
 
 When Proper, and Nature of. 
 
 all persons are bound to take notice of such illegality, (a) 
 Where, by the provisions of,a cliarter of a city, a tax is made 
 a lien on the premises assessed, it constitutes a cloud. If il- 
 legal a bill will lie to remove it. (i) 
 
 Unless the State consents to the snit and designates the 
 auditor-general to represent it as a party defendant, a bill 
 can not be maintained against him, as against sales to the 
 State for unpaid taxes, (c) Persons who can not be affected 
 by the result, having conveyed all interest in the premises, 
 and who set up no farther claim, are not proper defendants, {d) 
 Defendants to be joined must have a common interest in the 
 titles involved, (e) 
 
 No formal tender is necessary before filing a bill to remove 
 an invalid tax title; but an allegation of an offer to pay 
 twenty-five dollars for a release, where it greatly exceeds the 
 sum for which the lands were sold, is an averment of an offer 
 to do all that in equity could be required. (/") When bound- 
 ary lines are alleged in the bill, they should be clearly and 
 definitely set forth, {g) The description should always be 
 clear, definite and accurate. 
 
 Allegations of fraud should be specific, and sustained by 
 the proof, though large latitude will be permitted in the in- 
 troduction of evidence to sustain such averments, {h) 
 
 A bill to set aside certain deeds. made for. property sold for 
 taxes, as a cloud upon the title, which fails to allege any in- 
 validity in the sale or tax deeds, is bad on demurrer, {i) 
 
 (a) Detroit y. Martin, 34 Mich. 173. 
 
 (6) ScofieU V. Lansing, 17 Mich. 437; Thomas v. Gain, 35 Mich. 156; 
 see, also, Marquette v. Houghton, and Ontonagon R. R. v. Marquette, 35 
 Mich. 504. 
 
 (c) Burrell v. Auditor-general, 46 Mich. 256. 
 
 ((?) Hammontree v. Lott, 40 Mich. 190. 
 
 (e) Hunton v. Piatt, 11 Mich. 2,64; Woods v. Monroe, 17 Mich. 238. 
 
 (/) Hanscom v. Hinmcln, 30 Mich. 419. 
 
 (g) Howell V. Merrill, 30 Mich. 232; Gmei/ v. Majnard, 44 Mich. 578; 
 see Verplanh v. Hall, 27 Mich. 79. 
 
 (h) Damouth v, Klock, 29 Mich. 289; Fury v. Strohecker, 44 Mich. 337; 
 Pogod-zinski v. Kruger, 44 Mich. 79. 
 
 {.i)Gage v. McLaughlin, 101 III. 155; see Gage v. Basse, 102 111: 592. 
 39 
 
610 BILLS TO QUIET TITLE. 
 
 Forms of Bills — Bills to Quiet Title and to Cancel Deed, 
 
 SECTION IL 
 
 FORMS OF BILLS. . 
 
 Wo. 226. Bill to quiet title and to Gcmcel deed. 
 
 State of Miohigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the (Jounty of . In Chancery. 
 
 Your orator, A B, of, etc., respectfully represents unto this 
 lionorable court, that on, etc., one E F, late of, etc., now de- 
 ceased, being the owner in fee siuiple of the following de- 
 scribed real estate, to wit: {Here describe the same), by his 
 deed of that date, duly executed and acknowledged, conveyed 
 the said described premises to one G H, of, etc.; and that af- 
 terward, on, etc., the said G H, by his deed of that date, 
 duly executed and acknowledged, conveyed the said premises 
 to B B, late of, etc., but now deceased, the father of your ora- 
 tor. 
 
 Your orator further represents, that on, etc., the said B B 
 departed this life, intestate, leaving your orator his only heir- 
 at-law, by means whereof your orator became, and now is, 
 the owner in fee of the said premises'. 
 
 Your orator further represents, that up to and at the time 
 of the conveyance from the said G H to the said B B, the said, 
 premises were vacant and unoccupied; that soon after your 
 orator's lather purchased said lands, he took possession and 
 commenced the improvement of the same, and the said prem- 
 ises are now in a full state of cultivation, with a valuable 
 dwelling-house, barn, and other improvements thereon; and 
 that the same have been in the actual use, occupation and 
 possession of the said B B and your orator, e\er since the 
 said purchase by the said B B from the said G H. 
 
 Your orator furtiier represents, that all tlie said deeds of. 
 conveyance, except the deed from the said E F to the said G 
 H, were duly recorded in' the office of the register of deeds 
 of said county soon after the same were executed and deliv- 
 ered; that the said deed of conveyance from the said E F to 
 the said G II, by some accident or oversight on the part of 
 the said G H, was not recorded until, etc.; and that one J K, 
 the defendant hereinafter named, who is a speculator in lands 
 and defective titles, discovered by some means, that there was 
 no deed on record from the said E F, deceased, and that there 
 was a link wanting in tlm chain of your orator's title to said. 
 
BILLS TO QUIET TITLE. Btl 
 
 Form of Decree — Decree to Quiet Title and to Cancel Deed. 
 
 premises, well knowing that your orator was in the^ possession, 
 of the same, claiming title thereto in fee, on, etc., made appli- 
 cation to D F and C F, the sons and only heirs-at-law of the 
 said E F, deceased, as it is claimed, the said E F then having 
 been dead for a long space of time, and, by some means or 
 representations, procured a qnit-claim deed of conveyance 
 from the said D F and F as the heirs-at-law of the said E F, 
 for the said' described prertiises; and on, etc., filed the same 
 for record in the oifice of the register of deeds in said county, 
 and by reason of his said deed being first'of refiord, and ^ in 
 order to annoy and vex your orator in the premises, now sets 
 up and claims title to the said lands as against your orator, ■ 
 but refuses to commence a suit at law against your orator to 
 try title to the said premises. 
 
 Tour orator further represents, that the said deed of con- 
 veyance of the said D F and C F to the said J K, by reason 
 of the same having been first placed on record in the register's 
 ofiice of said county, is a cloud upon the title of your orator 
 in said premises, and tends to- depreciate the value and sale 
 thereof. 
 
 Forasmuch, therefore, as your orator is without remedy in 
 the premises, except in a court of equitj" and to the end that 
 the said J K, who is made party defendant to this bill, may 
 be required to make full and direct answer to the same, hut 
 not under oath, the. answer xuader oath h&ing hereby waived,' 
 and that the said deed of conversance from the said D F and 
 F to the said J K, bearing date on, etc., as aforesaid, of the 
 said premises, may be set aside and declared void as against 
 your orator, as a cloud upon the title of your orator; and that 
 the said deed may be delivered up to be canceled; and that 
 your orator may have such other and further relief in tlie 
 premises as equity may require and to this honorable court 
 shall seem meet. 
 May it please, etc. {Add prayer for process.) 
 
 SECTION II. 
 
 FOKM OF DEOKEE. 
 
 ^0 227. Deoree to quiet title and to oanoel deed. 
 
 {Caption, and title of cause as im, No. 105, ante.) 
 
 Ihis cause having come on to be hteard upon the bill of 
 complaint herein, the answer thereto, the replication of the 
 complainant to such answer, and the proofs taken in said 
 
612 BILLS TO QUIET TITLE.: 
 
 Form of Decree— Decree to Quiet Title and to Cancel Deed. 
 
 jcause, and hayiing. been argued by counsel for the respective 
 parties, and the court having duly considered the same, and 
 being fully advised in the premises ; 
 
 Doth order, adjvdge a-nA (leoree that the said deed of con- 
 veyance from the said D F and C F to the defendant J K, 
 bearing date on, etc., of the said premises, to wit {Here de-. 
 scribe the premises), and recorded in the recorder's office ot the 
 
 said county of , be and the same is hereby set aside and 
 
 declared null and void, as against the complainant, his heirs 
 and assigns, as a cloud upon the title of the complainant; and 
 that the defendant J K do deliver up the said deed to be can- 
 celed by the register of this court. 
 
 It is further ordered, that the defendant pay the costs of 
 this suit, to be taxed, and that execution issue therefor. 
 
NE EXEAT. 6iy 
 
 Nature of, and When Proper. 
 
 CHAPTER XXXVI. 
 
 NE EXEAT. 
 
 Section 1. Nature of, and when Propbk. - 
 
 2. Bill poh. 
 
 3. How Obtained, etc. 
 
 SECTION I. 
 
 NATURE OF, AND WHEN PEOPjSK. 
 
 The writ of ne exeat repiMioa, is a process issuing out of a 
 court of record to restrain a person from leaving the State. It 
 was originally applied only to great political objects and pur- 
 poses of state, for the benefit or safety of the realm. In the 
 time of Richard II, a statute w^s passed prohibiting all per- 
 sons whatsoever, excepting lords, great men, merchants and 
 soldiers, from going abroad, {a) It is remarked by Fitzher- 
 bert, that, by the common law, every man may go out of 
 the realm at his pleasure, without the king's leave; yet, be- 
 cause every man is bound to defend the king and his realm, 
 therefore the king, at his pleasure, by his writ, may com- 
 mand a man that he go not beyond the sea, or out of the 
 realm without license; and if he do the contrary, he shall be 
 punished for disobeying the king's command. (S) 
 
 In the United States it is only applied to civil purposes, in 
 aid of the administration of justice. It is resorted to for the 
 purpose of obtaining equitable bail; (e) and its object and de- 
 sign is to hold a party amenable to justice, and to render him 
 personally responsible for the performance of the orders and 
 
 (ffl) Fleta, 383; Beames on l^e Exeat, 6; Anon. 1 Atk. 521; Flach v. 
 Holm, 1 Jac. & Walk. 405, 413, 414. 
 
 (6) Fitzherbert's Nattira Brevhim, 85; 2 Story's Eq. Juris. § 1466; 2 Co. 
 Inst. 54; 3 Co. Inst. Ch.84, p. 178, 179; Ex parU Brtmker, 3 P. Wms. 312. 
 
 (c) Mitchell V. Burch, 2 Paige, Ch. 606; Gresham v. Peterson, 25 Ark. 
 377.. 
 
614 NE EXEAT. 
 
 Bill for. 
 
 decrees of the court bj preventing him from withdrawing 
 hitnself from its jurisdiction, {a) 
 
 In some of the States it is granted only in cases of equi- 
 table debts and claims; (J) and refused where the debt is sucli 
 as that it is demandable in a suit at law. (c) Courts of chancery 
 may award the writ of ne exeat upon all equitable demands. 
 It is an efficient remedial process in cases of. a bill for an ac- 
 count or for. alimony. ((Z) 
 
 But in Michigan, a party on failure can only be imprisoned 
 on proceedings for contempt, for failure to pay alimony, (e) 
 The power to issue writs of ne exeat, is not as broad as at 
 common law. (_/") 
 
 A writ of ne exeat will not be granted where it appears from 
 the bill or petition that a complete remedy may be liad at law.(p') 
 
 A petition for the writ upon the ground that the defendant 
 lias sold all his property and is about to depart the State, is 
 defective if it fails to show that the property alleged to have 
 been sold was not exempt from execution. (A) 
 
 SECTION II. 
 
 BILL FOE. 
 
 The bill should set forth the grounds for the issuing of a 
 writ of »e exeat, and should pray that the writ issue. 
 
 (a) Oleason v. Bisby, 1 Clarke, 551; Cowdinv. Cram, 'A Edw. Ch. 231; 
 Seymour v. Hazard, 1 .Johns. Ch. 1; Johnson v. Clendenin, 5 GiU& J. 463; 
 Hunter v. Nelson, 5 Blackf. 268; Gresham v. Peterson, 25 Ark. 377; see 
 Samuel v. Wiley, 50 N. H. 853; EnOs v. Hunter, 4 Gilm. 211. 
 
 {b) Palrnerv. Van Doren, 2 Edw. Ch. 425; Seymour v. Hazard, 4 Johns. 
 Ch. 1; Hunter v. Nelson, 5 Blackf. 268; Deany. Smith, 2) Wis. 483. 
 
 (c) Nixon V. Richardson, 4 Dessau. 108; Brown v. Haff, 5 Paige, Ch. 
 235; see Fisher v. Stone, 3 Scam. 68, 
 
 id) Denton v. Denton, 1 Johns. Ch. 441; Dean v. Smith, 23 Wis. 483; 
 Hammond v. Hammond, 1 Clark, 551; Pratker\. Prai/}«r, 4 Dessau. 33. 
 
 (e) Sleller v. Steller, 25 Mich. 159. 
 
 (/) See Art. VI. Const. § 33; Comp. L. 1871, §§ 7174, 7175; Badger y. 
 Reed, 39 Mich. 773. 
 
 {g) Victor Scale Co. v. Shurtliff, 81 111. 313; see Bassettv. Bratton, 86 
 111. 152. 
 
 {h) Jones v. Kennicott, 83 111. 484; Malcolm v. Andrews, 68 111. 100. 
 
NE EXEAT. 615 
 
 How Obtained, etc. — Allowance by Circuit Judge, etc. 
 
 Ng. 228. Form, of jprayer to hill for ne exeat. 
 
 Forasmuch, therefore, aa your orator is without i-emedy in 
 the premises, except in a court of equity; and to the end 
 that the said C D, who is made party defendant to this bill, 
 may be required to make full and perfect answer to the same, 
 hwt not under oath, the answer under oath ieing hereby 
 warned; and that the defendant may be stayed by the people's 
 writ of ne exeat repuhlica from departing out of the jurisdic- 
 tion of this court ; and that your orator may have such other 
 and further relief in the premises as equity may require and 
 to this honorable court shall seem meet. 
 
 {Add prayer for process and verify the hill.) 
 
 SECTION III. 
 
 HOW OBTAINED, ETC. 
 
 The same ofHcers authorized to allow injunctions may 
 allow ne exeats. 
 
 N'o. 229. Allowance hy circuit judge. 
 
 Let a writ of ne exeat issue in this cause against the de- 
 fendant, C D, as prayed for in the within bill, and that the 
 
 writ be marked iu the sum of ^ dollars, and that an 
 
 order to that effect be entered. 
 Dated, etc. 
 
 A JM, 
 Circuit Judge. ■ 
 
 iTo. 230. Allowcmce hy injumxtion master. 
 
 I certify that I have examined the within bill and am of 
 the opinion that a ne exeat should issue in this cause against 
 the defendant, D, and that- such writ should be marked in 
 
 the sum of dollars. 
 
 Bated, etc. 
 
 J M D, 
 Circuit Court Commissioner, 
 
 and Injunction Master, 
 ■ County, Michigan. 
 
 Upon the writ being allowed, an order in conformity with 
 the allowance must be entered by' the register ; can issue. 
 
616 NE EXEAT. 
 
 How Obtained, etc. — Allowance by Injunction Master. 
 
 When issued it should be indorsed by the officer allowing it in 
 the sum in wiiich tlie defendant will be held to bail, {a) The 
 writ is directed to the sheriff and is executed by him. The 
 bond runs to the sheriff. The condition is that the defend- 
 ant will not depart from the State without leave of the court. 
 If bail is not given, the sheriff retains the defendant in cus- 
 tody, and so makes return. Upon bail being given, and 
 upon special motion based on that fact, the court will dis- 
 charge the writ. (5) Exceptions to an answer will not prevent 
 the discharge of the writ, (c) When once applied for and re- 
 fused, or granted conditionally, another application can not 
 be made, {d) 
 
 (a\ McNamara v. Dwyer, 5 Paige, 239. 
 
 (6) See 1 Hoff. Ch. Pr. 167; 1 Barb. Ch. Pr. 654; 1 Hoff. Ch. Pr. 362, 
 363; Brayton v. Smith, 6 Paige, 489. 
 (c) Chancery Rule 17. 
 {d) Comp. L. 1871, § 5055. 
 
BILLS RELATING TO TRUSTS. 617 
 
 Nature of, etc. 
 
 CHAPTER XXXVII. 
 
 BILLS EELATING TO TEUSTS. 
 
 Section 1. Nature of, etc. 
 2- Form of Bills. 
 
 SECTION I. 
 
 NAT0EE OF, ETC. 
 
 Cliancery always has jurisdiction to enforce a trust, and foi' 
 this purpose may appeal to the conscience of the trustee; and, 
 although the trust may be established by other evidence, this 
 does not impair the jurisdiction of a court of chancery, to en- 
 force the trust. («) 
 
 Courts of equity are generally very liberal in protecting 
 mere naked trustees or stakeholders against conflicting 
 claims.(6) 
 
 If a trustee neglects his duties as trustee, a court will re- 
 move him and appoint another, (e) 
 
 "While a court of equity will not enforce the acceptance of 
 a trust, it will, when it is voluntarily assumed, enforce a faith- 
 ful execution of it, for the preservation of rights depending 
 upon, and derivable from it. {d ) 
 
 Where a conveyance is made to several, in trust, the failure 
 
 (a) McCredie v. Burton, 31 Mich. 383; Barnes v. Brown; ,32 Mich. 146; 
 Ware v. Linnell, 29 Mich. 224; Crissman v. Crissman, 23 Mich. 217; Hol- 
 lister V. Loud, 2 Mich. 309; Coates v. Wooduiorth, 13 111. 654; Norton v. 
 Hixon, 25 111. 440; see Doyle v. Murphy, 22 111. 502; see, also, Sutton v. 
 Hanfurd, 11 Mich. 613. 
 
 (6) School District v. Weston, 31 Mich. 85. 
 
 (c) Lill-v. Neafie, 31 III. 101; see Attorney-general v. Garrison, 11 Mass. 
 223. 
 
 (d) Cooper v. McClun, 16 111. 435; see Nicholl v. Ogden, 29 111. 323; Dor- 
 sey v. Garey, 30 Md. 489. 
 
618 BELLS RELATING TO TRUSTS. 
 
 Nature of, etc. 
 
 of one of the co-trustees to act will not defeat the conveyance. 
 In such a case equity will entertain jurisdiction, for the pur- 
 pose of preserving the trust, (a) 
 
 After a trust has been declared in a deed, the grantor, by 
 express agreement or otherwise, has no power to alter and 
 change the terms or conditions of the trust. The beneficiaries 
 take by the deed a vested interest that is not subject to the 
 control of the grantor, nor to any change by the trustees. (5) 
 
 In all cases, in order to invoke the interposition of a court 
 of equity, the trust and the abuse of it must be clearly estab- 
 lished in accordance with the rules by which courts are gov- 
 erned in administering justice, (c) 
 
 Courts of chancery have power, in cases of necessity, to or- 
 der a disposition of trust estates which is not in accordance 
 with tlie provisions of the deed creating the trust. This power 
 will, however, be exercised with great caution; and it is the 
 duty of the court, when unforeseen exigencies arise, which make 
 its exercise necessary, to place itself in the position of the 
 creator of the trust, and to do as he would have desired if he 
 had anticipated the existing circumstances; (d) 
 
 Where the sole trustee for infants, appointed under a will, 
 dies, and the will does not provide for the appointment of a 
 successor, a court of equity will appoint one. [e) And where 
 it was shown that the cestui que trunt was prohibited by the 
 laws of the State from coming within its limits, the court sub- 
 stituted for such trustee, a person living in the State where the 
 cestui que trust resided. (/") 
 
 Where an estate is given to trustees, to be disposed of by 
 
 (a) mcholl y. Miller, 37 lU. 388; McCosker v. Bradi/, 1 Barb. Ch. R. 
 329. 
 
 (6) McDonald v. Starhey, 42 111. 442; Padfield v. Padfield, 72 111. 322. 
 
 (c) Crissman v. Crissman, 23 Mich. 217; Happy v. Morton, 33 111. 398; 
 see Brunnenmeyer v. Buhre, 32 111. 183; Marlow v. Marlotv, 77 lU. 633. 
 
 {d) Curtiss v. Brown, 29 111.201; seeAlemanyv. Wensinger,40 Cal. 288; 
 Jenkins v. DoHttle, 69 111. 415. 
 
 («) Dunscomb v. Dunscomb, 2 Hen. & M. 11; Guion v. Pickett, 42 Miss. 
 77; Buchanan v. Hart, 31 Texas, 647. 
 
 (/) Ex parte Tunno, 1 Bailey Ch. 395; see Maxwells. Finnie, 6 Coldw. 
 Tenn. 534. 
 
BILLS EELATING TO fRUSTS. 619 
 
 Form of Bills — Bill to Remove Trustees, for Injunction and Receiver. 
 * \ 
 
 theai at their discretion for the support of a cestui que trust, a 
 court of equity will not interfere to control that discretion, 
 unless there has been abuse of the trust, {a,) 
 
 Where one procured an allowance to liiinself of a claim un- 
 der a treaty, and received money upon it, he was held to be 
 the trustee of the rightful claimant, (h) A fraudulent grantee 
 can not hold in trust for the rightful claimant, {o) The mere 
 receipt of money by one not entitled to it creates no equity in 
 his favor, {d) 
 
 It was formerly held that a resulting trust, when the pay- 
 ment of the purchase money was clearly proven, payment of a 
 part only was not sufficient, {e) But resulting trusts in such 
 cases, except in behalf of creditors, have been abolished^ {f) 
 
 Equitable titles are to be enforced in equity, and a convey- 
 ance to the cestui que trust will be compelled in proper cases. ( ff) 
 
 SECTION II. 
 
 FORM OF BILLS. 
 
 il^o. 231. £iU to remove trustees, for injunction amd re- 
 ceiver. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the County of . In (Chancery. 
 
 Your orator, A B, and your oratrixes, B B, the wife of A 
 B, and C B, the daughter and only child of A B and B B, all 
 of, etc., respectfully represent unto this honorable court, that 
 on, etc., a certain deed of conveyance of that date, was exe- 
 cuted between your orator, A B, and your oratrix, B B, his 
 wife, of the one part, and C D and E F of, etc., the defeud- 
 
 (a) Smith v. Wildhnm, 37 Conn. 384; see Adams v. Adams, 79 111. 517; 
 Steele Y. Clark, n 111.471; Emmons v. Koo;-e, 85 111.304; Atty.-gen.Y. 
 ni. Ag. College, 85 111. 516. 
 
 (6) Edwards v. Hulbert, Walk. Ch. 54. 
 
 (c) Adams v. Bradley, 12 Mich. 346. 
 
 {d) Decatur v. Township Board, .33 Mich. 335. 
 
 (e) Bernard v. Bougards Heirs, Har. Ch. 130. 
 
 (/) Comp. L. 1871, §§ 2637, 2638. 
 • (<?) Peer v. Kean, 14 Mich. 354. 
 
620 BILLS RELATING TO TRUSTS. 
 
 Form of Bills — Bill to Remove Trustees, for Injunction and Receiver. 
 
 ants hereinafter named, of the other part, which said deed is 
 in the words and figures and to the purport following, that is 
 to %'A.y,{Here set out copy of deed verbatim,) as by the said 
 deed, ready to be produced in court, will appear. 
 
 Your orator and oratrixes further represent, that the de- 
 fendant C D, has principally acted in the trust of the said 
 deed, and has, by virtue thereof, from time to time, received 
 considerable sums of money and other effects, but he has ap- 
 plied a small part thereof upon the trusts of the said deed, and 
 has applied and converted the residue thereof to his own use; 
 and in particular, the said D has, within a few months 
 past, received a considerable sum of money from the estate 
 and effects of the said D B, the whole of whicli he applied to 
 his own use. 
 
 Yonr orator and oratrixes further represent, tliat they have 
 repeatedly applied to the defendants for an account of the 
 said trust property received and possessed by them, and of 
 their application thereof. And yourorator and oratrixes well 
 hoped that the defendants would have complied with such 
 reasonable request, as in equity they ought to have done. 
 But now so it is, the dei'endants, combining and confederat- 
 ing, and contriving so to wrong and injure 3'our orator and 
 oratrixes in the premises, absolutely refuse to comply with 
 such requests; and pretend that the trust property and effects 
 possessed and "received bj' them were to an inconsiderable 
 amount, and that they have duly applied the same upon 
 the trusts mentioned in said deed. Whereas your orator 
 and oratrixes charsre the contrary of such pretenses to 
 be the truth; and that so it would appear if the defendants 
 would set forth, as they ought to do, a full and true account 
 of all and every the said trust property and efiects which tliey 
 have respectively possessed and received, and of their applica- 
 tion thereof. 
 
 Your orator and oratrixes furtlier represent, that tlie de- 
 fendant D, threatens and intends to use otlier parts of the 
 said trust property, and to apply the same to his own use, and 
 will do so, unless he is restrained therefrom by the injunction 
 of this court; that both said defendants ought to be removed 
 from being trustees under the said deed, and that some other 
 person or persons ought to be appointed by this court, as such 
 trustees in their place and stead; and that in the meantime 
 some proper person ought to be appointed to receive, take 
 charge of, and collect the said trust property. 
 
 Forasmuch, therefore, as your orator and oratrixes are with- 
 out remedy in the premises, except in a court of equity; and 
 
BILLS RELATING TO TRUSTS. * 621 , 
 
 Fonn of Bills — Bill for Appointment of Trustee under Marriage Settlement. 
 
 to the end that the «aid C D and B F, who are made parties 
 defendants to this bill, may be required to make fall and di- 
 rect answer to the same, hut not under oath, the answer vn- 
 der oath being hereby ipaived; and set forth a true and per- 
 fect acconnt in items of all the trust funds and effects re- 
 ceived by; them respectively, by virtue of the, said deed, and 
 of their application thereof; and that upon the hearing here- 
 of an account may be taken of all and every the said trust 
 property and effects, which have, or bnt for their willful de- 
 fault or" neglect might have been received by them, or either 
 of them, or by any other person or persons, by their or either 
 of tl>eir order, or to their or either of their use; and also an 
 account of their application thereof; and that the defendants 
 may respectively be decreed to pay what shall appear to be due 
 from them upon such-account; and that the detendants may 
 be removed from being trustees under the said deed; and that 
 two other persons may be appointed trustees under the said 
 deed in their place and stead; and, that in the meantime some 
 proper person may be appointed to receive and collect the 
 said trust estate and effects; and that your orator and ora- 
 trixes may have such other and further relief inthe premises as 
 equity may require and to this court shall seem meet. May 
 
 it please , etc. {Here insert prayer for injunction 
 
 and surrumons and affidavit.) 
 
 Ifo. 232. Bill for the appointment of a new-trustee under 
 marriage settlement. 
 
 State of Michigan. 
 
 Xhe Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Your orator, A B, and oratrix, B B, his wife, and your ora- 
 tors, B and D B, minors, under the age of twenty-one 
 years, by the said A B, their fatlier and next friend, and your 
 orator, E F, all of, etc., respectfully represent unto this honor- 
 able court, that on, etc., your orator, A B, and oratrix, B B, 
 then B E, being about to be united in the bonds of matri- 
 mony, entered into an ante-nuptial contract or marriage set- 
 tlement, signed by each, and bearing date on that date, which 
 is in the words and figures and to the purport following, that 
 is to say: [Here insert copy of marriage settlement verba- 
 tim,) as by the said instrument, ready to be produced in court, 
 will appear. ^ 
 
 Your orators and oratrix further represent, that the said ante- 
 nuptial contract or marriage settlement contains no power or 
 
622 BILLS RELATING TO TRUSTS. 
 
 Fonn of Bills — Bill for Appointinent of Trustee under Marriage Settlement. 
 
 authority to appoint a new trustee in the place or stead of 
 either of the said trustees therein named, who should decline 
 to act in the said trusts, or be desirous to be removed there- 
 from, as by the said instrument will appear. 
 
 Your orators and oratrix furtlier represent, that the said 
 intended marriage was soon afterward, to wit, on, etc., had 
 and solemnized between your orator, A B, and oratrix, B B; 
 and that your orators, C B and D B, are the only children born 
 of such marriagfe. That the said G- H, the defendant herein- 
 after named, one of the trustees named in the said instrument, 
 as co-trustee of your orator, £ F, declines to act in the trust 
 of the said instrunient, and is desirous to be relieved and dis- 
 charged therefrom, but by reason that no power is reserved in 
 the said instrument for the appointment of a new trustee, 
 your orators and oratrix are advised that he can not be dis- 
 charged from such trust, nor any new trustee appointed in 
 his stead, without the aid of a court of equity. 
 
 Forasmuch, therefore, as your orators and oratrix are with-' 
 out remedy in the premises, except in a court of equity; and 
 to the end that the said G H, who is made party defendant 
 to this bill, may be required to make full and direct answer 
 to the same, hut not under oath, the answer under oath be- 
 ing hereby waived; and that the coiirt may appoint a new 
 trustee under the said marriage settlement, in the place and 
 stead of the defendant; and that the defendant may be de- 
 creed to join in such instrument or instruments as may be 
 necessary to convey or release the said trust premises to yonr 
 orator, E F, his co-trustee, and such new trustee upon the 
 trusts of the said marriage settlement; and that thereupon 
 the defendant may be discharged from the trusts of the said 
 instrument; and that your orators and oratrix may have 
 such other and further relief in the premises as equity may 
 require and to this honorable court shall seem meet. {Add' 
 prayer for process.) 
 
BILLS TO EESTRAIN WASTE.' 623 
 
 Nature of, and when Proper. 
 
 CHAPTEE XXXYIII. 
 
 BIIXS TO .EESTKAIN WASTE. 
 
 Section 1. Nature of, and when Peopeb. 
 2. Form of Bill. 
 
 SECTION. I. 
 
 NATtJEE OF, AND WHEN PEOPEE. 
 
 Courts of equity will interfere to restrain waste by persons 
 having limited interests in property, on the mere ground of 
 the common law rights of tlie parties, and the difficulty of ob- 
 taining the immediate preservation of the property from de- 
 struction or irreparable injury, by the process of the common 
 law. {a) 
 
 The statute provides' that, the circuit court for each county 
 shall have equity jurisdiction of all matters concerning waste, 
 in which there is not a plain, adequate and complete remedy 
 at law; and may grant injunctions to stay or prevent waste; - 
 and whenever it shall be necessary or proper to have any fact 
 tried by a jury, such court may award a feigned issue for that 
 purpose, as in other cases. (J) 
 
 There are many cases where a person is punishable at law 
 for committing waste, and yet a court of law will enjoin him, 
 as, where there is a tenant for life, remainder for life, remain- 
 der in fee, the tenant for life will be enjoined from commit- 
 ting waste, (c) So, a landlord may have an injunction to stay 
 waste against an under-lessee, {d) So, an injunction may be 
 
 (o) 2 Storx',s.E,q. Juris. § 912. 
 
 {h) Comp. L. 1871, § 6369. See on this subject, Comp. Laws, 1871, title, 
 Waste. 
 
 (c) 2 Story*s Eq. Juris. § 913; Powys v. Blagrave, 27 Eng. Law & Eq. R. 
 568; see Abraham v. Bubb, 2 Freem. Ch. 53; Garth v. Cotton, 1 Dick. 185, 
 205, 208; Eden on Irg. ch. 9, pp. 162, 163; Davis v. Leo, 6 Ves. 787. 
 
 (d) Farrant v, Lovell, 3 Atk. 723; S. C. Ambler, 105. 
 
624 BILLS TO RESTRAIN WASTE. 
 
 Nature of, and when Proper. 
 
 obtained against a tenant from year to year, after notice to 
 quit, to restrain liim from removing the erops, etc., according 
 to the usual course of husbandry, (a) And an injunction may 
 be obtained against a lessee, to prevent him from making ma- 
 terial alterations in a dwelling-house, (h) 
 
 An injunction to restrain waste, lies in cases where the agr 
 grieved party has equitable rights only; thus, for instance, in 
 cases of mortgages, if the mortgagor or mortgagee in posses- 
 sion commits waste, or threatens to commit it, an injunction 
 •will lie. ((?) 
 
 Equitable waste is defined to consist of such acts as are not 
 considered waste at law, being consistent with the legal rights 
 of the part}' committing them, but which are deemed waste in 
 equity on account of their manifest injury to the inheritance, {d) 
 
 The general rule is, that everything is waste which occasions 
 a permanent injury to the inheritance; but it has been said 
 that the situation of this country requires an application of the 
 rule different from that which might be proper in England, {c) 
 
 A threat to commit waste is sufficient to ground an injunc- 
 tion upon; (y) but tlie mere apprehension of waste intended 
 is not sufficient where the defendant denies any intention, {g) 
 
 Where the title is doubtful or disputed, as between devisee and 
 heir at law, or otherwise, an injunction will not be granted. (A) 
 
 A bill in equity is the appropriate remedy for amortga-gee 
 against a mortgagor in possession, who. is impairing the secur- 
 itj"^ by committing waste, (i) 
 
 (a) iPratt v. Brett, 2 Mad. 62; Onslow v. , 16 Ves. 173. 
 
 (6) Douglas v. Wiggins, 1 .Tohns. Ch. 485; 2 Story's Eq. Juris. § 913. 
 
 (c) Farrant v. Lovell, 3 Atk. 723; Phoenix v. Clark, 2 Halst. Ch. 447; 
 Eden on Inj. Ch. pp. 9, 165, 166; Brad^ v. Waldron, 2 Johns. Ch. 148: 2 
 Story's Eq. Juris. § 710, a, 914. 
 
 (d) Story's Eq. Juris. § 915; High on^Inj. § 432. 
 
 (e) K.eeler v. Eastman, 11 Vt. 293; Findlay v. Smith, 6 Munf. 1.34. 
 
 {f) London Y. Warfield, 5 J. J. Marsh. 196; Livingstone. Reynolds, 26. 
 Wend. 115; Gibson v. Smith, 2 Atk. 183. 
 
 (gr) 7 Ves. 309; see Coffin v. Coffin, Jac. R. 70. 
 
 \h) Field V. Jackson, 2 Dick. 599; Sm,ith v. Colhjer, 8 Ves. 89; Pilsworth ■ 
 V. Hopton, 6 Ves. 50 a; Nonvay v Roioe, 16 Ves. 146, 154. 
 
 (i) Cooper V. Davis, 15 Conn. 556; Brady v. Waldron, 2 Johns. Ch. 148; 
 
BILLS TO RESTRAIN WASTE. 625 
 
 Form of Bill — Bill by Landlord against Tenant to Restrain Waste, etc. 
 
 A tenant in dower of coal lands, or a tenant for life, may 
 take coal to any extent from a mine already opened, or sink 
 new shafts into the same vein of coal ; (a) and may make 
 reasonable firewood; (b) but it has been held, that a tenant for 
 life has no right, to take clay or wood from the premises for 
 the manufacture of bricks, (c) 
 
 An injunction to stay waste is, as a general rule, prospective, 
 and the court will not, unless under very special circumstances, 
 grant an injunction to prevent the removal of timber already 
 cut; {d) and, so far as the bill seeks to recover for waste already 
 committed, it can not be sustained. («) 
 
 The threatened inclosure of a highway will be prevented 
 by an injunction {/) 
 
 An executor who has no estate in premises, but who is au- 
 tliorized to lease them, can not maintain an action on the case 
 for waste. Such action must be by a reversioner in fee. The 
 only remedy of the executor for the injury, is by action upon 
 the covenants in the lease, {g) 
 
 The reader is referred to 2 Story's Eq. Juris. §§ 909-920; 
 High on Inj. §§419-457, for a further investigation of waste. 
 
 SECTION II. 
 
 FOEM OF BILL. 
 
 No. 233. Bill hy landlord against tenant to restrain waste 
 — injunction., etc. 
 
 State of Michigan. ,, 
 
 The Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the County of — • — . In Chancery.. 
 ■ Your orator, A B, of, etc., respectfully represents unto this 
 
 Salmon v. Clagett, 3 Bland, 125; Capner v. Flemington Mining Co. 2 
 Green, Ch. 467. 
 
 (a) Crouch v. Purt/ear, 1 Rand.- 258; 7 Harris, 323; 12 Id. 162. 
 
 (!>) Gardiner v. Bering, 1 Paige, Ch. 573. 
 
 (c) Livingston V. Reynolds, 2 Hill, Ch. 157; 26 Wend. 115. 
 
 {d) Watson v. Hunter, 5 Johna. Ch. 169. 
 
 [e) Downing v. Palmater, 1 Monr. 64. 
 
 [f) Craig v. The People, 47 111. 487. 
 
 [g) Page v. Davidson, 22 111. 112. 
 
 40 
 
623 BILLS TO RESTRAIN WASTE. 
 
 Eorm of Bill — Bill by Landlord against Tenant to Restrain Waste, etc. 
 
 honorable court, that before and at the time of making the 
 leiise hereinafter msntioned, your orator was seized in fee sim- 
 ple of the premises hereinafter described; and being so seized 
 by a certain lease, bearing date oni etc.. and made by and be- 
 tween your orator of the one part, and C D, of, etc., the de- 
 fendant hereinafter named, of the other part, your orator de- 
 mised, leased, and to farm let, unto the defendant, all, etc. 
 {Here describe the premises), to hold the same, with the ap- 
 purtenances, unto tlie defendant, on, etc., for the term of 
 
 years, then next ensuing, at the annual rent of dol- 
 lars; and the defendant did thereby covenant, promise and 
 agree with your orator that he would, during the said term, 
 keep the said premises in good repair, and manage and culti- 
 vate the said farm and lands in a proper, husbandlike man- 
 ner, according to the custom of the country, as by the said in- 
 denture of lease, reference being thereunto had, will more 
 fuUv Mppear. 
 
 Your orator fiirtlier represents, that the defendant, under 
 and by virtue of the said indenture, entered upon the said 
 demised premises, with the appurtenances, and became, and 
 was possessed thereof for the said term so to him granted there- 
 of by your orator as aforesaid. 
 
 And your orator further represents, that at the time the 
 defendant entered upon the said premises, the same were in 
 good repair and condition, and your orator hoped th'e defend- 
 ant would so have kept the same, and have cultivated tlie 
 said lands in a proper and husbandlike manner,' according to 
 tlie custom of the country, and that such part of the said 
 premises as consisted of meadow or pasture ground would 
 have remained so, a,nd not have been plowed up, and con- 
 verted into tillage; and that no waste would have been com- 
 mitted on the said premises. But now so it is, the defendant 
 contriving how to wrong and injure your orator in the prem- 
 ises, pretends that the said premises are now in as good repair 
 ffs when he entered upon the same, and that he has cultivated 
 the said farm and lands in a proper and husbandlike manner, 
 and that no waste has been committed by him thereon. 
 "Whereas, your orator charges, that the said premises, and 
 the buildings, out-houses, gates, stiles, rails and fences, were 
 in a good and perfect state and condition, when the defendant 
 entered upon tlie said premises, but now are very ruinous and 
 bad, and the land very much deteriorated, from the willful 
 mismanagement and improper cultivation thereof, by the de- 
 fendant, who has plowed up certain fields situated, etc., 
 containing respectively acres, and has otherwise com- 
 
BILLS TO RESTRAIN WASTE. 627 
 
 ' Fovm of Bill — Bill by Landlord against Tenant to Restrain Waste, etc. 
 
 imitted great spoil, waste and destrnction in, upon and about 
 the said premises. 
 
 Yonr orator further represents, that the defendant threatens, 
 and is about to plow up the remaining pasture fields on 
 said premises, and to commit other waste upon said lands and 
 appurtenances, which will be an irreparable injury to the 
 same; and that the defendant is so insolvent that any judg- 
 ment your orator might recover against him in an action at 
 law, could not be collected from him. 
 
 And your orator further charges, that the defendant ought 
 to put the said premises in the same condition they were in 
 when he entered thereon, and to make your orator a reason- 
 able compensation for the waste and damage done or occurred 
 thereto; and that the defendant ought to be restrained by the 
 order and injunction of this honorable court, from plowing 
 up the remaining pasture-fields upon said premises, wiiich he 
 threatens to do, and also restrained from committing any fur- 
 ther or other waste, spoil or destruction, in and about or to 
 the said estate and premises or any part thereof. 
 
 Forasmuch, therefore, as your orator is without remedy in 
 the premises, except in a court of equity; and to the end that 
 the said C D, who is made party defendant to this bill, may 
 be required to make full and direct answer to the same; iut 
 not under oath, the answer under oath being hereby waived; 
 and that upon the final hearing hereof, the defendant may bej; 
 decreed to put the said premises into such repair and condi- 
 tion, in every respect, as far as circumstances will permit, as 
 the same were in at the time he entered upon the same under 
 said lease as aforesaid; and to make a reasonable compensation 
 to your orator for all wastes done, committed or sufi^ered by 
 him on tlie said premises, and all damages occasioned thereto 
 by his mismanagement or neglect; and that he may be decreed 
 to keep the said premises in good and sufficient repair and 
 condition during the remainder of his time therein, and to 
 mana ;;e and cultivate said farm and lands in a proper and hus- 
 bandlike manner, according to the custom of the country; and 
 that he may be restrained bj' the order and injunction of the 
 court from plowing up the said remaining pasture-fields 
 forming part of said demised promises, and from committing 
 or permitting any further waste or spoil in, on or to the said 
 premises, or any part thereof; and that your orator may have 
 such other and further relief in the premises as equity may 
 require and to this honorable court shall seem meet. 
 
 Ma,y it please, etc. {Conclude with a prayer for process 
 and injunction and affidavit.) 
 
628 MECHANIC'S LIEN. 
 
 Nature of. 
 
 CHAPTEE XXXIX. 
 
 PEOCEEDINGS TO ENFOECE MECHANIC'S LIEN. 
 
 Section 1. Natdrb op. 
 
 2. Whebb a Likn is Given. 
 
 3. Biixs AND Petitions. 
 
 4. Ahswek. 
 
 5. Cross-Bill. 
 
 6. Heaking, Decree and Sale. 
 
 SECTION I. 
 
 KATUEE OF. 
 
 Proceedings to enforce me;?lianic's liens being in derogation 
 of tlie common law, and der.ving all their validity from the 
 statutes, must, in all essential particulars, conform to the re- 
 quirements of the statutes. 
 
 The statutes in reference to liens have been revised by the 
 legislature at its session of 1879, and the mode of proceeding 
 is pointed out in its numerous provisions. 
 
 The pleadings are made up as in other cases in chancery, 
 and the practice and proceedings are, in the main, governed 
 by the same rules as in other equitable suits, (a) There is an 
 exception, and that is, that the testimony is taken in open 
 court, unless it is deemed proper by the court to submit the 
 question of fact to a jury, in which case the trial will be had 
 upon a question stated, or upon an issue formed under the 
 direction of the court, or otherwise, as it shall order, (b) 
 
 To make a title good under the mechanic's lien law, there 
 must be an affirmative showing, that every step required to be 
 
 (a) Kimball v. Cook, 1 Gilra. 430; Sutherland v. Byerson, 24 111. 518; 
 Brady v. Anderson, 24 111. 112; Hamilton v. Dunn, 22 111. 259; West v. 
 Fleming, 18 111. 248. 
 
 (6) Comp. L. 1871, Chap. 215, as amended laws 1879, p. 274. 
 
MECHANIC'S LipN. 629 
 
 Where a LVen is Given. 
 
 taken, lias been regnlarly taken, (a) The provisions of the 
 statute can not be extended beyond their plain and fair sense. 
 The lien for biiildinj^ material can only arise on a contract 
 made by the owner, part owner or lessee of the land to be 
 effected, and it will not attach to anything besides his actual 
 interest. It attaclies to an entire interest of a debtor in prem- 
 ises considered only as real estate. It will not attach to chat- 
 tels separated from it. When enforced against a simple equity, 
 it must be confined to that, and a sale of the equitable interest 
 must be subject to the rights of the legal owner, (h) The con- 
 tract for furnishing labor or materials to constitute a lien, 
 must relate to and be performed on the land, (c) The lien is 
 terminable on redemption. It gives no fixed right of posses- 
 sion for any particular period. It does not concern third per- 
 sons, unless asserted by the parties. 
 
 The mechanic's lien law only applies to individuals and 
 private corporations; it does not apply to work done on State, 
 county, city or other public corporations, [d) 
 
 The suit will not be dismissed because the matter in dispute 
 is under one hundred dollars, {e) 
 
 SECTION II. 
 
 WHERE A LIEN IS GIVEN. 
 
 The statute (_/) provides that every person who shall, in 
 pursuance of any contract, express or implied, existing be- 
 tween himself, as contractor, and the owner, part owner, lessee 
 or person holding under any land contract or otherwise, any 
 interest in real estate, build, alter, improve, repair, erect, 
 
 (n) Wagar v. Briscoe, 38 Mich. 587. 
 (i) Ibid. 
 
 (c) Stout V. Sawyer, .37 Mich. 313. 
 
 (d) Thomas v. Ind. University, 71 111. 310; Board of Ed. v. Neidenher- 
 ger, 78 111. 58; Thomas v. Urbana School Dist., 71 111. 283; Bouton v. 
 Supervisors, etc., 84 111. 384; see Phillips on Liens, §§ 17.), 186. 
 
 (e) Comp. L. 1871, § 5059; Amended Laws, 1881, p. 119. 
 (/) Laws, 1879, p. 274. 
 
630 MECHANIC'S LIEN. 
 
 Where a Lien is Given. 
 
 beautify or ornament or put in; or who shall furnish any 
 labor or material in or for building, alterina;, improving, re- 
 pairing, erecting, beautifying or ornamenting or putting in 
 any house, building, machinery, wharf or other structure, and 
 every person who shall, as sub-contractor, laborer or ma- 
 terial man, perform or furnish any labor or materials to such 
 original or principal contractor, in carrying forward or com- 
 pleting any such contract, shall have a lien therefor upon such 
 house, building, machinery, wharf or other structure, and its 
 appurtenances, and upon the entire interest of such owner, 
 part owner, lessee or persons holding, under such land con- 
 tract or otherwise, in and to the lot or piece of land, not ex- 
 ceeding one-quarter section of land, or if within any incorpo- 
 rated village or <it3', not exceeding the lot or lots upon which 
 said improvement is made, to the extent of the right, title 
 and interest of such owner, part owner, lessee or person hold- . 
 ing under such land contract or otherwise, at the time the 
 work was commenced or materials begun to be furnished by 
 the contractor under the original contract, or by a sub-con- 
 tractor under such sub-contract. 
 
 Provided, however, that the aggregate of all liens shall not 
 exceed the amount due or to become due from such owner, 
 part owner, lessee or person holding under such land contract 
 or otherwise. And provided further, that if any such labor, 
 service or materials are furnished upon lands belonging to 
 any married woman, with her knowledge or consent, in pur- 
 suance of a contract with the husband of such married woman, 
 the person furnii^hing such labor, service or material, shall 
 have a lien upon such property, the same as if such contract 
 had been made with such married woman. 
 
 House painters are within the protection of the mechanic's 
 lien law, which secures to persons who furnish labor, or ma- 
 terials for erecting, etc., a building, (a) 
 
 The lien commences on the delivery of the materials or the 
 performance of the labor, and not from the date of the con- 
 tract. It is not the contract which creates the lien, but the 
 
 (a) Martine v. Nelson, 51 IlL 422. 
 
MECHANIC'S LIEN. 631 
 
 Where a Lien is Given. 
 
 use of the materiars or labor furnished under a contract for 
 that purpose, (a) 
 
 If the materials furnished and used become severed from the 
 freehold by fire, the lien is not thereby destroyed. (5) 
 
 There must be an actual use of the materials or labor on the 
 building, or the lien will not attach, (c) Where lumber and 
 materials are furnished on an open account, witlu ut reference 
 to its being used in any particular building, the lien will not 
 be enforced. The contract must reler to some particular 
 building in order that the lien may take efi'ect. {d) There 
 must be a written identification of the land in the agreement 
 for the work, (e) 
 
 In Illinois it is held that a widow's dower can not be af- 
 fected by a mechanic's lien. (/") But where the contract was 
 made by the husband, for a building on the wife's separate 
 property, with her knowledge, approbation and consent, the 
 property is subject to the lien, (g) 
 
 A contract with an infant is not binding upon him, and 
 there can be no lieu on his land for labor or materials. (A) 
 
 If the person who procures the work to be done, or materi- 
 als to be furnished, has any estate less than a fee simple, or if 
 the lands are incumbered in any way, the person who pro- 
 cured the work to be done, or materials to be furnished, will, 
 nevertheless, be considered the owner to the extent of his in- 
 terest or right in tlie premises; and the' lien will bind his 
 whole estate or title in the same manner that a niortgage 
 
 (a) McLagan v. Brown, 11 111. 519, 526; Williams v. Chapman, 17 III. 
 425; Hunter v. Blanchard, 18 111. 318. 
 
 (i) Gaiij V. Casey, 15 111. 190; Steigleman v. McBride, 17 111. 300; Son- 
 tag V. Breniien, 75 111. 279. 
 
 (c) Hunter v. Blanchard, 18 111. 318. 
 
 (d) Hill V. Bishop, 25 111. 349; Burkhart v. Beisig, 24 111. 352. 
 
 («) Hammottd v. Wells, 45 Mich. 11; West v. iMratray, 28 Mich. 464; 
 Wilson y. Jones, 46 Mich. 348. 
 
 (/) Shae^erv. Weed, 3 Gilm. 511. 
 
 (g) Laws 1879, p. 275; Schwartz v. Saunders, 46 111. 18; see Baxter v. 
 Hutchings, 49 111. 116. 
 
 (.h) McCarty v. Carter, i) 111. 53. 
 
632 MECHANIC'S LIEN. 
 
 "Where a Lien is Given. 
 
 would have done, and his whole estate may be sold aTid the 
 proceeds applied to pay the debts and liens on the same, {a) 
 
 Where A bonght land and took only a contract for a deed 
 when lie paid the purchase money, and afterward, with the 
 knowledge of his vendor, contracted for the erection of a 
 house, it was held that he was the owner within the meaning 
 of the statute: and in this case the conrt ordered the land to 
 be sold and the mechanics to be first paid out of the proceeds,- 
 and the balance to the vendor of the land. (5) 
 
 The fact that only one of the defendants owned the land 
 will not defeat the lien, (c) And where one member of a 
 firm owns a lot, and tlie firm ordered materials and made the 
 improvement, tlie lien would hold, notwithstanding the title 
 was in one member, and a note was given by the firm in pay- 
 ment for such materials, (d) 
 
 Wiiere tlie real owner of land stands by and sufiiers an- 
 other to contract for the building of a honse upon it, he will 
 be estopped from setting up title to defeat the lien, (e) 
 
 A person in possession of public lands has an estate in the 
 premises subject to a mechanic's lien, (/" ) but the decree can 
 only aflfect the interest which the defendant has in the prop- 
 
 •5rty- (g) 
 
 Where labor or materials are furnished on separate lots, 
 the lien will be against each lot separately, for the amount of 
 labor or materials ftirnished on each respectively. But where" 
 they are furnished to build one block, all under one roof, all 
 compact as one building, though covering more than one lot, 
 it was held proper to decree a lien against the entire block 
 which the building covered. (A) 
 
 (n) Turney M. Sawreders, 4 Scam. 531; Dobschuets y'. HoUiday, 82111.372. 
 (6) D inaldson v. Holmes, 23 111. 85. 
 
 (c) Roach V. Chapin, 27 lU. 197; Van Court v. Bushnell, 21 111. 626. 
 {d) ih'oskey v. Corey, 48 IE. 444. 
 
 (e) Donaldson v. Holmes, 23 111. 85; Eiggin v. Ferguson, 14 111. 270; 
 Schwartz v. Saunders, 46 111. 18; Baxter v. Hatchings, 49 III. 116. 
 (/) Turney v. Saunders, 4 Beam. 527. 
 
 [g) Garrett v. Stevenson, 3 Gilm. 261; Judson v. Stephens, 75 III. 265. 
 {h) James v. Hambleton, 42 111. 310. 
 
MECHANIC'S LIEN. 633 
 
 Where a Lien is Given — Notice and Service — Notice of Claim of Lien, etc. 
 
 Meclianic's liens are subject to existing and prior rnort- 
 gagesou tlie same premises, (a) 
 
 Notice and service. — Such lien shall not attach, unless such 
 person, contractor or sub- con tractor, labor or material man, 
 shall file in the office of the register of deeds of the county or 
 counties in which said real estate is situated, a written notice, 
 substantially in the following form: {b) 
 
 No. 234. Notice of claim of lien. 
 
 To all whom, it may concern: 
 
 Take notice. — That I intend to claim a lien upon the fol- 
 lowing described premises, and the tenements and appurte- 
 nances thereon, for materials and labor furnished, and to be 
 furnished by me as contractor, {or sub-contractor or laborer, 
 as the case may be), under a certain contract existing between 
 
 , as owner, (or otherwise), claiming an interest in said 
 
 premises, and • ; as contractor, {for building ori'epairing, 
 
 putting in machinery, etc., as the case may be). Which 
 premises are described as follows: {Giving proper real estate 
 description.) 
 
 (Signed) , 
 
 Contractor, {or as the case m,ay be.) 
 
 A copy of the above notice must be served upon such owner, 
 part owner, lessee or other person claiming an interest there- 
 in, under such land contract, {or otherwise), if he can be found 
 within said county, or on his duly authorized agent, in charge 
 of the premises, (c) 
 
 Effect of filing and service. — The filing and service of said 
 notice, shall not bind said premises and said owner, part 
 owner, lessee or person claiming under such land contract or 
 otherwise, for any amount beyond the sum which is then due 
 at the time of filing and serving the same, or which may 
 thereafter become due from sucli owner, part owner, or said 
 other person, to said original contractor, at or after the time 
 
 (n) Phillips on Liens, §§ 67, 232. 
 (h) Laws 1879. p. 275. 
 (c) Laws 1879, p. 275. • 
 
634 MECHANIC'S LIEN. 
 
 Wherp Lien is Given — Statements to be Rendered — Affidavits to be Filed, etc. 
 
 of snch service. The register of deeds shall index all snch 
 notices of intention to claim a lien, in a book to be kept for 
 that purpose, and such filing shall have the same effect as to 
 notice, as the recording of a mortgage, {a) 
 
 Statements to he rendered. — Snch contractor or sub- con- 
 tractor, filing such claim of lien, shall from time to time, 
 whenever required by such owner, part owner or lessee, or his 
 agent, or other persons claiming an interest in such property 
 as aforesaid, within three days from demand therefor, furnish 
 a statement of the amount of work and materials famished to 
 date of settlement, and then unpaid as nearly as can then be 
 ascertained, and the person claiming such lien, shall serve on 
 said owner or his agent in charge of the premises, if required 
 by such owner or agent, once each week, after the time of the 
 filing and serving of his said intention to claim such lien, a 
 statement of the amount due, as near as he can estimate the 
 same, at the time of the furnishing of such statement. 
 
 Affidavits to he filed. — He shall, within thirty days after 
 final cessation of his labor or the furnishing of materials by 
 him, make an affidavit of the amount actually due him over 
 and above all set-off", and for which he claims such lien, and 
 shall file the same in the office of the register of deeds, in the 
 county or counties wherein the land or buildings to be affected 
 are situated, and shall also file therewith proof by affidavit of 
 due service of notice of lien on such owner, part owner, lessee 
 or other person holding under any land contract or other- 
 wise, and unless such affidavits are so filed, such lien shall 
 cease and determine as to all persons except as to such owner, 
 part owner, lessee or person holding under any land contract 
 or otherwise. (J) 
 
 Lien considered as a tnortgage. — The several liens upon 
 the same property under such contract, shall be deemed si- 
 multaneous mortgages, and shall continne for sixty days after 
 
 (a) Laws 1879, p. 276; see Roberts v. Miller, 32 Mich. 239. ' 
 
 (b) Laws 1879, p. 276. 
 
MECHANIC'S LIEN. 635 
 
 Where a Lien is Given — Affidavit to be Attached to Notice, etc. 
 
 such affidavit of amount due is filed, and no longer, unless 
 proceedings are begun to enforce the same as hereinafter pro- 
 vided, (a) IS^otwithstanding such lien, any creditor may 
 maintain his action at common law, in like manner as if he 
 had no such lien for the security of his debt. (5) 
 
 ]!^o. 235. Affidavit to he attached to notice at time of ser- 
 vice. 
 
 State of Michigan, 
 County of 
 
 ss. 
 
 A B, of the tovrnship of , county of -, and State 
 
 aforesaid, being duly sworn, deposes and says, that he is of 
 
 the age of- years and upwards, and that tlie annexed is 
 
 a true and correct copy of a notice now on file in the office 
 
 of the register of deeds for the county of , and State 
 
 fiforesaid, and further says not. A B. 
 
 Subscribed, etc. 
 
 While the statute does not, in express terms, require the 
 foregoing affidavit to be attached to and served with the 
 notice of lien, still, a true copy of the notice must be served, 
 and, as the proceedings are -unknown to the common law, 
 too much care can not be taken to have them correct. 
 
 The following affidavit, must be filed in the office of the reg- 
 ister of deeds, in the county or counties wherein the lands and 
 buildings to be afiected by the lien are situated, within thirty 
 days after final cessation of labor by the party claiming the 
 hen, or the furnishing of materials by him. 
 
 No. 236. Affidavit of service of notice.. 
 
 State of Michigan, ) 
 
 County of P®' 
 
 A B, of the township of , in said county and State, 
 
 being duly sworn, deposes and says, that he is years of 
 
 a^e, and that he is acquainted with C D, the owner {or other- 
 wise), of the following premises and tenements, and the ap- 
 purtenances thereon, which premises are situated in said 
 
 (a) Laws 1879, p. 276. 
 (6) Laws 1879, p. 277. 
 
636 MECHANIC'S LIEN. 
 
 Where a Lien is Giyen — Affidavit of Amount Due. 
 
 connty of , and ai-e described as follows : {Give proper 
 
 real estate description'). Deponent further says, that upon the 
 
 • day of , A. D. 18 — , at the hour of o'clock in the 
 
 noon, at the township of , in said county and State, 
 
 deponent served upon said D, by handing the same to him 
 personally, a true and correct copy of a notice of claiin of lien 
 upon the above described premises, of which the annexed ex- 
 hibit "A" is also a true and correct copy, which said original 
 notice was, at the time of said service as aforesaid, and is now, 
 on file in the office of the register of deeds of said county of 
 
 . Deponent further says, that attached to said copy of 
 
 said notice, so served as atoresaid, and at the tiuie of said ser- 
 vice, was au affidavit, of which the annexed exhibit " B " is a 
 true and correct copy. Deponent further says, that he makes 
 said exhibits A and B ajjart of this his affidavit, and further 
 says not. 
 
 AB. 
 Subscribed, etc. 
 
 {Annex exhibits A and B.) 
 
 Within thirty days after the final cassation of his labor, or 
 the furnishing of materials by him, the person claiming the 
 lien, must make and file in the office of the register of deeds, 
 of the county (or counties) in which the land or buildings to 
 be ati'ected thereby are situated, the following affidavit. 
 
 No. 237. Affidavit of amount due., for which 'mechanic's lien 
 
 is claimed. 
 
 State of Miciii&af, ) 
 County of , f ' 
 
 A B, being duly sworn, deposes and says, that he resides in 
 
 the township of in said county and State, and that he is 
 
 years of age. Deponent further says that upon the 
 
 day of , A. D. 18 — , he filed a notice of a claim of lien 
 
 in the office of the register of deeds in said county, upon the 
 following premises, and the tenements and appurtenances 
 thereon, for materials and labor furnished, {and then to be 
 furnished, if such is the case), as contractor, {or sub-contract- 
 or or laborer, as the case may be), under a certain express 
 contract existing between C D, as owner, {or otherwise), (t\&\i'!i- 
 ing an interest in said premises, and this depotieiit as con- 
 ti'actor, {or sub -contractor or laborer, according to the fact, 
 for building or repairing, putting in machinery, etc., as the 
 
MECHANIC'S LIEN. 637 
 
 Where Lien is Given — Notice that Affidavit of Amount Due is a True Copy. 
 
 case may he.) "Which premises are situated in the township 
 
 of , in said county and State, and are known and described 
 
 as follows: {Giving proper real estate description^ and upon 
 
 the day of— — , A. D. 18 — , deponent served a true and 
 
 correct copy of said notice upon the said C D, by handing the 
 same to him personally', all of which will more fully, and at 
 larii;e appear, by reference to said original notice, and the affi.- 
 davitof the service of a true copy of the same, now on file in 
 
 the office of said register of deeds for said county of , in 
 
 said State, and which said notice and said affidavit of service 
 of a copy of the same, and now on tile as aforesaid, this de- 
 ponent makes a part of this, his affidavit. 
 
 Deponent further says, that said express contract between 
 deponent and said G D, and hereinbefore referred to, was in 
 words and figures following: [Here set forth contract., if it 
 can he done, although the statute does not require it., and it is 
 not, therefore, absoliitely essential.) 
 
 Deponent further says that he finally ceased work, [or fi- 
 nally ceased furnishing material, or ioth), upon said above 
 
 described premises, upon the day of , A D. 18 — ; 
 
 that tliirty days have not elapsed since the final cessation of 
 labor by deponent {or the furnishing of material hy him, or 
 both), upon said described premises, and that the amount now 
 actually due to deponent from said D, over and above all 
 legal set-otils, and for which deponent claims a lien on said 
 above described premises, and the tenements and appurte- 
 nances thereon, is tlie sum of dollars and cents, 
 
 and further deponent says not. 
 
 Subscribed, etc. 
 
 AB. 
 
 "While it is not required by the statute, it is well and prop- 
 er to serve upon the party against whom the lien is claimed, 
 a true copy of the foregoing affidavit, with the following no- 
 tice indorsed thereon: 
 
 No. 238. Notice that affidavit of amoumi due on mechanic's 
 lien, is a true copy. 
 
 State of Michigan, ] 
 
 County of j ®®' 
 
 To C D, of the township of . 
 
 County of —■ , and State of Michigan. 
 
 Sie: — You will please to take notice that the within ia a 
 
638 MECHANIC'S LIEN. 
 
 Where a Lien is Given — Discharge of Lien. 
 
 true copy of an affidavit now on file in the office of the regis- ■ 
 
 ter of deeds for the county of in the State of Michigan. 
 
 Dated at , the day of , A. D. 18—. 
 
 Yours, etc. 
 
 AB. 
 
 Discharge of lien. — A note, unless taken in payment ab- 
 solutely, will not discharge a lien, {a) although it bears inter- 
 est. (5) But where a note of a firm is taken in satisfaction 
 for work and materials furnished to one of the partners, and 
 the settlement is made in accordance with the usual mode of 
 doing business between the parties, and the property against 
 which the lien is claimed has been sold on a trust deed, a 
 mechanic's lien can not afterward be sustained against the 
 premises for said work and materials, (c) 
 
 If it appears that a petitioner has taken other security, 
 either on property or of persons, to satisfy him for his labor 
 and materials, the statutoi-y lien will be discharged, (d) But 
 an agreement to extend the time of payment beyond a yeair, 
 provided a mortgage should be given, will not defeat a me- 
 chanic's lien if the mortgage should not be executed. The 
 giving of the mortgage in such case is a condition prece- 
 dent, (e) 
 
 A party does not waive his right to enforce a mechanic's 
 lien by commencing a suit in attachment, as they are concur- 
 rent remedies. (_/) And the pending of a proceeding for me- 
 chanic's lien can not be pleaded in abatement of an action to 
 recover the value of the labor and materials, {g) 
 
 Taking other security will not discharge the lien unless it 
 
 (a) Vail Courts. Bushnell, 21 111. 626. 
 
 (6) Brady v. Anderson, 24 111, 113; see Cowle v. Varmim, 37 111. 181. 
 
 (c) Benneson v. Thayer, 23 111. 374; see Croskey v. Corey, 48 111. 442 
 
 (d) Kinzey v. Thomas, 28 111. 502; see Conover v. Warren, 1 Gi m. 501; 
 Croskey v. Corey, 48 111. 444; Gardner v. Hall, 29 111. 277; Clement v. 
 Newton, 78 111. 427. 
 
 (e) Gardner v. Hall, 29 111. 277. 
 
 {/) Laws 1879, p. 278; Chapman v. K. L. & S. Co., 20 Mich. 358; West 
 V. Fleming, 18 111. 248; Culver v. Ehvell, 73 111. 536. 
 {g) Ibid; Delahay v. Clement, 3 Scam. 201. 
 
MECHANIC'S LIEN. 639 
 
 Bills and Petitions — ^Parties. 
 
 is expressly agreed that the new security is taken as absolute 
 payment, {a) 
 
 Proper tender of the amount due will discharge the 
 lien. (5) 
 
 In all cases of redemption of lands sold on execution, or in 
 all cases of the sale of lands on mortgage foreclosure, whether 
 by advertisement or chancery sale, or in all cases of payment 
 of judgments or decrees when the record shows a levy, or any 
 other lien by niorogage, levy or lis pendens, it shall and may 
 be lawfuj, and it is hereby made the duty of the officer making 
 such sale, or the person receiving such money, on receiving 
 such money to discharge such levy, judgment, mortgage or 
 decree from the record of the register of deeds, in the proper 
 county in which such sale is made, (o) 
 
 Limitation of lien. — A mechanic's lien only continues 
 sixty days after the affidavit of the amount dne is tiled, unless 
 proceedings are begun within that time to enforce the 
 same, {d) 
 
 SECTION III. 
 
 BILLS AND PETITIONS. 
 
 The statute provides that the proceedings to enforce the lien 
 shall be by bill or petition in chancery on oath. AH inter- 
 vening bills and cross-bills shall be on oatli, and all bills 
 sworn to are evidence of the matters therein charged, unless 
 denied by answer under oath, {e) 
 
 Parties. — All persons having rights in the property affected 
 hj the liens filed and recorded, and all persons holding like 
 liens so filed and recorded, and those having filed notice of in- 
 
 (a) Au Suhle R. R. Co. v. Sanborn, 36 Mich. 358. 
 
 (b) oynahan v. Moore, 9 Mich. 9; Eslow v. Mitchell, 26 Mich. 501. 
 
 (c) Laws 1873, p. 217. 
 id) Laws 1879, p. 276. 
 (e) Laws 1879, p. 276. 
 
640 MECHANIC'S LIEN. 
 
 Bills and Petitions — Security for Costs — G vermenta of Bill. 
 
 tention to claim a lien, mnst be made parties to the snit. (a) 
 And persons not parties to the proceeding, will not be affected 
 by it. (5) _ 
 
 A widow is not a proper party where her only interest in 
 the premises is her dower, (c) 
 
 Persons holding liens, or having filed notice of intention 
 to claim a lien, or any person having a right in such propertv, 
 may make themselves parties to such suit on motion and no- 
 tice to complainant, (d) If it shall appear that any pai'ty has 
 had insufficient notice of any proceeding, such further notice 
 shall be given as the court may think just, (e) 
 
 If the creditor in the contract shall die before the commence- 
 ment of a suit thereon, the same may be prosecuted by his 
 executors or administrators, or if commenced in liis life-time, 
 it may be prosecuted by them as it might have been by the 
 deceased, if living. (_/) 
 
 Security for costs. — Every bill or petition filed by a non- 
 resident of Michigan, must be indorsed in the same manner 
 that declarations are required to be indorsed in the like cases, 
 by some responsible person, as security for costs, {g) 
 
 Averments of hill. — The complainant sets forth in his bill, 
 the character in which he sues, the terms of his contract, the 
 matt^rials furnished and labor done, and a description of the 
 premises upon which the lien is claimed, as set forth in the 
 notice of lien. The bill must also allege the nature of the 
 claim, as set forth, the title by which the premises are held, 
 
 [a] Laws 1879, p. 277; Lomax v. Dore, 45 111. 379; Greenleaf t. Beebe, 
 80 111. 520. 
 
 (6) Steigleman v. McBride, 17 111. 300; Williams v. Chapman, lb. 422; 
 Eiymond v. Etving, 26 111. 329; Meeks v. Sims, 84 111. 422. 
 
 (c) Shaeffer v. Weed, 3 Gilm. 511. 
 
 {d) Laws 1879, p. 277j homage v. Dore, 45 111. 379; Raymond v. Eioing, 
 26 111. 329. 
 
 (e) Laws 1879, p. 277; Lomax v. Dore, 45 111. 379. 
 
 (/)Law9l879, p. 278. 
 
 (g) Laws 1879, p. 279. 
 
MECHANIC'S LIEN. 641 
 
 Bills and Petitions— Amendments lo Bills. 
 
 and the performance of the contract in all its parts, the 
 amount due, the filing and service of the notice of lien, and 
 all other facts necessary to a full understanding of the case, 
 and the rights of the parties by the court; and these aver- 
 ments must be proved, so that the court may know that the 
 conditions required by the statute have been complied with, (a) 
 
 The bill or petition must show that the work was complet- 
 ed; and a contract which does not specify a time within which 
 the work is to be completed and the money is to be paid, is 
 defective. (5) So, also, in regard to the time when materials 
 were to be furnished and paid tor under the agreement, (o) 
 
 If the claimant is entitled to interest, he should claim it in 
 his bill or petition, or he can not recover it. {d) 
 
 It has been held that in setting up the title of the respond- 
 ent to the lands described in the bill or petition, it is not suf- 
 ficient to set forth the state of the title to the premises at the 
 time of filing the bill, but it must be made to appear that re- 
 spondent had the alleged interest or title in the lands at the 
 time of the filing of the notice of the claim of lien, or when 
 the materials were furnished, (e) Every fact essential to ju- 
 risdiction should appear upon the record, and be distinctly 
 and aflSrmatively proved. (_/) 
 
 Am.endments tohills. — Amendments to bills or cross-bills 
 may be made at any time before the final hearing, {g) 
 
 (a) Cook V. Heald, 21 111. 429; Phillips v. Stone, 25 111. 77; Columbus 
 Mack. M. Co. V. Dorwin, lb. 169; Boivleyv. James, 31 111. 293: Sutherland 
 V. Ri/Krson, 24 111. 517; Powell v. Wether, 79 111. 134. 
 
 {V) Rogers v. Ward, 23 111. 473; Cook v, Heald, 21 111. 429; Burkhart 
 V. Beisig, 24,111. 529; Kinzey v. Thomas, 28 111. 502; see § 11 of Revised Act 
 of 1874; Grandies v. Hartwell. 90 111. 324. 
 
 (c) Cook V. Rofinot, 21 III. 437; Brady v. Anderson. 24 111. 112; Bush 
 V. Connelly, 33 111. 448; se? contra. Roach v. Chapin, 27 111. 195. 
 
 {d) Prescott y. Maxwell, 48 111. 82; Mills v. Heeney, 35 111. 173. 
 
 'e) Willard v. Magoon, 30 Mich. 273.^ 
 
 (/) Clark V. Raymond, 27 Micli. 456; Willard v. Magoon, 30 Mi(^.,274. 
 
 (g) Laws, 1879, p. 279. 
 
 41 
 
642 MECHANIC'S LIEN. 
 
 Bills and Petitions — Bill for Mechanic's Lien on Writ^ten Contract. 
 
 No. 239. Bill for mechanic's lien on written contract. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 To tlie Circuit Court for the Cjuntyof . In Chancery. 
 
 Your orator, A B, of, etc., respectfully represents unto this 
 honorable court, that he is by occupation a contractor and 
 builder; that on, etc., one C D, of, etc., one of the defendants 
 hereinafter named, applied to your orator to build for him a 
 dwelling-house, upon the premises hereinafter named, and 
 thereupon your orator and the said C D entered into a writ- 
 ten contract, with drawings and specifications attaclied, in tlie 
 words and figures as follows, to wit: {Here set out copy of 
 contract, etc.), as will appear by the said contract, drawings 
 and specifications ready to be produced in court upon the 
 hearing hereof. 
 
 Your orator furtlier represents, that immediately after the 
 making of said contract, and in compliance with the terms 
 tliereof, lie commenced work under the same, on the following 
 described premises, to wit: {Here describe the jpremises on 
 which building was erected), the said C D being, at the time 
 of the making of the said contract, and still is, the owner of 
 the said premises. 
 
 Your orator furtlier represents, that he did, in compliance 
 with the said contract, within the time therein specified, erect 
 and finish for the said C D, on said premises, a dwelling-house, 
 and did furnisli all the necessary materials and labor for that 
 purpose, and did in all respects comply with the terras of the 
 said contract, and the specifications and drawings thereto at- 
 tached, by him required to be iierformed. 
 
 Your orator further represents, that in accordance with the 
 conditions of the said contract, your orator, on, etc., procured 
 from E F. the architect and superintendent of the erection of 
 the said building, a certificate in writing that your orator had 
 completed his part of the said contract according to the terms 
 and conditions thereof, which said certificate is now in the 
 possession and control of tlie said C D. 
 
 Your orator further represents, that imm.ediately after the 
 
 completion of the said building, to wit, on, etc., the said C D 
 
 accepted the same, and took possession thereof, and has ever 
 
 since occupied the same with his family as a dwelling-house. 
 
 ^our orator further represents, that the said C D has only 
 
 paid Tonr orator the sum of dollars on said contract, 
 
 and that there is now due to voiir orator thereon the sum of 
 
MECHANIC'S LIEN. 643 
 
 Bills and Petitions — Bill for Mechanic's Lien on Written Contract, 
 dollars, from the said C D, together witli interest 
 
 thereof from, etc.; and your orator attaclies hereto a schedule, 
 marked A, as a part of this bill, showing the amount due 
 your orator under said contract, and all payments, with tlie 
 dates thereof, made by the said C D to your orator. 
 
 Your orator further represents, that he has frequently re- 
 quested the said D, to pay the said sum of dollars, the 
 
 balance due your orator from hira as aforesaid, but the said 
 C D has neglected and refused to do so; by means whereof 
 your orator is entitled, under the statute in such case provided, 
 to a lien upon the said premises for the amount due your ora- 
 tor as aforesaid. 
 
 Your orator further represents, upon information and be- 
 lief, that G H and L M, of, etc., Ijave or claim some interests 
 in the said premises, as purchasers, mortgagees, judgment 
 creditors, or otherwise, the precise nature whereof is unknown 
 to your orator; but such interests, if any there be, have ac- 
 crued since, and are subject to the lien of your orator as afore- 
 said. 
 
 Your orator further represents that on the day of , 
 
 • A. D. 18—, he filed a notice of his intention to claim a lien upon 
 said premises, in the office of the register of deeds of the 
 
 county of , to wit: where said premises are situated; 
 
 that upon the — day of , A. D. 18 , your orator served 
 
 a true copy of said notice upon said D by handing the same 
 to him personally, and on the same day filed the proof of 
 service of the same with the office of said register of deeds. 
 
 Your orator further avers that upon the day of , 
 
 A. D. 18 — , he filed in the office of the register of deeds of the 
 county wherein said premises are situated, to wit, the county 
 
 of , in said State, an affidavit showing the amount then 
 
 actually due to your orator from the said D over and 
 
 above all legal set-ofls, the said day of , A. T>. 18 — , 
 
 being less than thirty days from the time that your orator 
 finally ceased labor on said building or furnishing materials 
 for the same. 
 
 And your orator avers that he has done and perfonned 
 each and every of the things by him to be done or performed, 
 and he therefore claims that by the provisions of the statutes 
 of the State of Michigan he has obtained a lien upon said 
 premises, and which may be enforced in this court. 
 
 Forasmuch, therefore, as your orator is without remedy in 
 the premises, except in a court of equity ; and to the end 
 that the said C I), G H and L M, who" are made parties 
 defendants to this bill, may be required to make full and 
 
644 MECHANIC'S LIEN. 
 
 Billa and Petitions — Petition for Mechanic's Lien on an Implied Contract. 
 
 direct answer to the same, hut not wnder oath, the answer 
 under oath being hereby waived; that an account may be 
 taken in this behalf under the direction of the court ; that 
 your orator may be decreed to be entitled to a lien upcJn the 
 said premises for the amount due your orator under the said 
 contract, in pursuance of the statute in such case made and 
 provided ; and that the defendant C, D, may be decreed to 
 pay your orator the amount due, and that in default of such 
 payment the said premises may be sold, as the court shall 
 direct, to satisfy such amount and costs; that in case of such 
 sale and of a failure to redeem therefrom pursuant to law, 
 the defendants, and all persons claiming throuoh or under 
 them, after the commencement of this proceedinsf, may be 
 forever barred and foreclosed of all right or equity of redemp- 
 tion of the said premises; and. that your orator may have 
 such other and further relief in the premises as equity may 
 require and to this court shall seem meet. 
 
 {Add prayer for process, annex schedule A, and add affi- 
 davit. 
 
 Ifo. 240. Petition for r mechanic s lien on an implied ' 
 ck,,, tract. 
 
 State or Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 1. Your petitioner, A B, of, etc., respectfully represents 
 unto this honorable court, that he is, and has been for a num- 
 ber of months last pist, engaged in dealing in lumber and 
 
 other building materials in , in said county; that on, etc., 
 
 one D, of, etc., who is made a party defendant to this peti- 
 tion, who was then erecting, or about to commence the erec- 
 tion and construction of a flouring mill,- contracted with 
 your petitioner for the sale and delivery to him of lumber of 
 various sorts, dressed and undressed, shingles, lime, cement 
 and other building materials, to be used in and about the con- 
 struction of said mill, the same to be, and then being erected 
 on the following described premises, to wit: (Here describe 
 the premises on which mill was built,) of which the said C D 
 was then and still is the owner. 
 
 2. Tour petitioner further represents, that no particular 
 amount of lumber and other materials was specifically con- 
 tracted for, nor was the icind or quality specifically named, 
 nor was the time or times of the delivery thereof definitely 
 fixed; but it was understood and agreed between your peti- 
 
MECHANIC'S LIEN. 615 
 
 Bills and Petitions — Petition for Mechanic's Lien on an Implied Contract. 
 
 tioner and the said D, that your petitioner should furnish 
 and deliver to the said C D such quantities of iunaber and 
 other materials, and of the kind and quality as your peti- 
 tioner might have for sale, and the said C D raigiit need ia 
 and about tiie construction of the said mill, and as he might 
 call for or order from time to time, during the process of the 
 erection of the said mill, which was to be completed on or 
 before, etc.; and that the whole amount of lumber and mate- 
 rials contracted for as aforesaid, were to be furnished witliiu 
 that time; that your petitioner was to furnish the said lum- 
 ber and other materials to the said C D at the usual and mar- 
 ket price, and that the same were to be paid for on delivery. 
 
 3. Your petitioner further represents, that in pursuance 
 of said contract, and upon the request of the said D, your 
 petitioner on, etc., commenced furnisliing and delivering to 
 the said D lime, lumber and other materials for his said 
 building, and continued thereafter and until, etc., to furnish 
 and deliver to him such materials of the kinds, qualities, 
 amounts and dates respectively as is shown by the bills ihe'e- 
 of, hereto attached, marked exhibits 1, 2, 3 and 4, and made a 
 part of this petition. 
 
 4. Your petitioner further represents, that the whole of 
 said lumber and other materials shown by said bills, were act- 
 ually used in and about the erection and construction of said 
 mill, situate and built u/on the premises aforesaid. 
 
 5. Your petitioner further represents, that the prices an- 
 nexed respectively to the several items for materials in said 
 bills contained, are the usual and market price for such materi- 
 als, at the times respectively when the same were furnished; 
 that your petitioner has been paid in cash to apply upon said 
 materials so furnished, the amounts as shown in and by the 
 credits upon said bills, and no more, and that there still re- 
 mains due your petitioner thereon the sum of dollars, 
 
 together with interest thereon from the time said materials 
 were furnished, which the said CD agreed to pay, and which 
 yourpetitioner claims. 
 
 6. Your petitioner further represents, that he has frequently 
 applied to the said D for the payment of the amount so 
 remaining due, but the said C D has hitherto failed and neg- 
 lected to pay the same or any part thereof. 
 
 7. Your petitioner further represents, upon information 
 and belief, that E F and G H, of, etc., have or claim, some in- 
 terests (the precise nature of which is unknown to your pe- 
 titioner,) in the said premises, as purchasers, mortgagees, 
 judgment creditors, or otherwise; but such interests, if any 
 
.646 MECHANIC'S LIEN. 
 
 BUls and Petitions — Petition for Mechanic's Lien on ai Implied Contract. 
 
 there be, have accrued since, and are subject to the lien of 
 yonr petitioner, by virtue of the statutes of this State in re- 
 lation to liens. 
 
 8. Your petitioner further represents, that on the 
 
 day of , A. D. 18 — , he tiled a notice of his intention to 
 
 claim a lien upon said premises in the office of the register 
 
 of deeds, of the county of , to wit, in the county where 
 
 said premises are situated ; that upon the. day of "- , A. 
 
 D. 18 — , your petitioner served a true copy of said notice 
 upon said C I), by tianding the same to him personally, 
 and on the last mentioned day your petitioner tiled in the 
 office of the register of deeds of said county, an atiidavit 
 showing due personal service of a true copy of said notice on 
 said C I), said last named day being less than thirty days 
 from the day that your petitioner tinally ceased furnishing 
 materials under and by virtue of the contract hereinbefore 
 set forth. 
 
 9. Your petitioner further represents, that upon the day 
 
 of , A. D. 18 — , your petitioner filed in the office of the 
 
 register of deeds of the county wherein said premises are sit- 
 uated, the same being the county of , an affidavit 
 
 showing the amount of money then actually due to your peti- 
 tioner from the said C D, over and above all legal set-oflTs, the 
 
 said day of , A. D. 18—, being less than thirty days 
 
 frorii the time when your petitioner finally ceased furnishing 
 materials in accordance with the contract hereinbefore set 
 Ibrth. 
 
 10. And your orator avers that he has done and performed 
 each and everything upon his part to be performed in the 
 premises, and he therefore claims that by the provisions of 
 the statute in such case made and provided, he has obtained 
 a lien upon said premises, and which may be enforced by this 
 court. 
 
 11. Forasmuch, therefore, as your petitioner is without 
 remedy in the premises, except in a court of equity, and to the 
 end that the said C D, E F and G H, who are made parties 
 defen,dants to this petition, may be required to make full and 
 direct answer to tlie same, iut not under oath, the answer 
 under oath being hereby waived; that your petitioner be al- 
 lowed to have and maintain a lien upon said premises, in ac- 
 cordance witli the statute in such case made and provided; 
 and that an account may be taken, under the direction of the 
 court, of the amount due your petitioner, from the said D, 
 as aforesaid, and that a decree may be rendered in favor of 
 your petitioner for the amount so found due; and that the 
 
MECHANIC'S LIEN. 647 
 
 Bills and Petitions — Petition for Mechanic's Lien on Verbal Contract. 
 
 said C D may be decreed to pay the same, together with the 
 costs of this proceeding, and that in default of sucli payment 
 the said premises may be sold, as tlie court shall direct, to 
 satisfy such debt and costs; that in case of snch sale, an^/a 
 failure to redeem therefrom pursuant to law, the defendants, 
 and all persons claiming through or under them, or either of 
 them, after the commencement of this proceeding, may be for- 
 ever barred and foreclosed of all right or equity of redemp- 
 tion of the said premises; and that your petitioner may have 
 such other and further relief in the premises as equity may re- 
 quire, and to this honorable court shall seem meet. 
 
 May it please, etc. {Pray ;proc6SS and add affidavit. An- 
 nex Exhibits 1, 2, 3 and 4.) 
 
 N^o. 241. Petition for mechanic's Uen, on verbal contract. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. ^ 
 
 To the Circuit Court for the County of . In Chancery. '■; 
 
 The petition of A B and C D, of, etc., partners, under the 
 name and style of B & D, respectfully represents, that your 
 petitioners are, by occupation, builders and dealers in lumber 
 and other building materials, and their place of business is in, 
 etc. That on or about, etc., one E F, who is made party de- 
 fendant to this petition, applied to your petitioners and desired 
 them to furnish all the materials and labor for, and to build 
 for him a dwelling house on the followinu; described lot, to 
 wit: ( Here describe the premises v^on which building was 
 erected) owned in fee simple by the saidE F; and thereupon 
 a verbal contract was entered into between your petitioners 
 and the said E F, by which your petitioners were to furnish all 
 the necessary materials, as follows, to wit : {Here describe 
 matereials to be used.) and all necessary labor, and erect for 
 the defendant a dwelling-house on the said described lot, and 
 have the same completed, ready for occupancy by, etc., and it 
 was agreed by the parties in said contract, that, etc., {.Here 
 set forth the terms of the contract as to how the house should 
 be constructed, finished); and it was further stipulated and 
 agreed by the defendant, that he would pay your petitioners 
 for such materials and all necessary materials and labor upon 
 said building, as much as the same were reasonably worth; 
 and that the defendant would pay to your petitioners, as the 
 work progressed, as follows, to wit : {Here i/nsert the terms 
 ofpaymen^.) 
 
 Your petitioners further represent, that they did, in pursu- 
 
MECHANIC'S LIEN. 
 
 Bills and Petitions — Petition for Mechanic's Lien on Verbal Contract. 
 
 ance of the terms of said contract, at once, on the making of 
 said contract, proceed to furnish a large amount of labor and 
 materials for the construction of the said building; a particu- 
 lar bill and account of all such labor and materials furnished, 
 and used in the construction of the said dwelling-house, is 
 hereto attached, and marked " Exhibit A," and is made a part 
 of this pe.ition. 
 
 Your petitioners furtlier represent, that in said bill of par- 
 ticulars marked " Exhibit A," each and every item of materi- 
 als furnished, and of the labor performed and bestowed in the 
 erection of said building, is fairly and justly set down, with 
 the date of each respectively, and the price of each item of 
 labor and material is set down opposite the same; that each 
 and every item, and all the material and labor mentioned in 
 said bill, were actually furnished under said contract and 
 used in said building of the defendant, and the same were 
 necessary to complete the said dwelling-house; and the price 
 charged for each article or item is a fair and reasonable one; 
 that all of the said materials so furnished by your petitioners 
 and put into said building were of excellent quality; and all 
 the work done by your petitioners in putting up said house 
 was done in a good and workmanlike manner. 
 
 Your petitioners further represent, that the said building 
 was actually erected on said lot, under said contract, and the 
 same constitutes a valuable and permanent improvement on 
 the said premises; and that the said building was fully com- 
 pleted and accepted by the defendant, on or before the, etc., 
 the time stipulated in said contract, as a complete perform- 
 ance by your petitioners of all the said contract, on their part 
 to be performed. 
 
 Your petitioners further represent, that there now remains 
 due and unpaid to yonr petitioners from the defendant on 
 said contract, the sum of dollars; which said sum the de- 
 fendant wholly neglects and refuses to pay, although often re- 
 quested so to do; by reason whereof your petitioners are en- 
 titled to a lien on said premises to secure the payment of the 
 amount so due yonr petitioners aforesaid. 
 
 i^Here insert paragraphs 8, 9 and 10 'of the preceding form, 
 substantially as therevn set forth, making the slight changes 
 necessary,) 
 
 Forasmuch, therefore, as your petitioners are without rem- 
 edy in the premises, except in a court of equity, and to the 
 end that the said E F, who is made party defendant to this 
 petition, may be required to make full and direct answer to 
 the same, hut not under oath, the answer under oath being 
 
MECHANIC'S LIEN. 649 
 
 Answer. 
 
 hereby waived,' tliat the defendant may be decreed to pay 
 your petitioners the arnonnt bo due them, as aforesaid, and 
 that ip default thereof, then the said premises may be decreed 
 to be subject to your petitioner's lien on the same, and may 
 be sold as the court shall direct to satisfy the amount so due 
 the petitioners as aforesaid, together with the costs of this pro- 
 ceeding, in pursuance to the statute in sucli case provided; 
 that in case of such sale, and a failure to redeem therefroraj 
 pursuant to law, that the defendant and all persons claiming 
 through or under him, after the commencement of this suit, 
 may be forever barred and foreclosed of all right or equity of 
 redemption of the said premises; and tliat your petitioners 
 may have such other and further relief in the premises as 
 equity may require and to this honorable court shall seem 
 meet. 
 
 May it please, etc. {Pray jprocess and add affidavit, and 
 annex " Exhibit A.") 
 
 Notice lis pendens. — Upon filing a bill or petition, a notice 
 lis pendens must be filed with the register of deeds of the 
 county wliere the lands to be affected may be situated, and it 
 will have the effect to continue such lien, pending proceedings 
 to enforce it. Persons who apply to be made parties, may 
 also file notice of lis pendens, and with like effect, {a) 
 
 SECTION IV. 
 
 ANSWER. 
 
 The answer must be under oath, unless oath is waived in 
 the bill, as provided in other cases. In Illinois it has been 
 held that, where the bill or petition waives the sworn answer, 
 although the answer be sworn to, it can not be received in 
 evidence, and has no other or greater weight than an answer 
 not sworn to. (5) 
 
 . (a) Laws 1879, p. 276. 
 
 (i) Clarke v. Boyle, 51 111. 104; see L. S. & M. S. R. E. Co. v. McMillan, 
 84 111. 208. 
 
C50 MECHANIC'S LIEN. 
 
 Answer — Answer of Owner Defendant to Petition for Mechanic's Lien. 
 
 No. 242. Answer of owner defendcmt to a hill or petition 
 for a mechanic's lien. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In chancery, 
 
 AB, 
 
 Complainant, 
 vs. 
 CD, 
 
 Defendant. 
 
 The separate answer of C D, one of the defendants to the bill 
 of complaint {or petition) of A B, complainant {or peti- 
 tioner). 
 
 This defendant, reserving to himself all right of exceptions 
 to the said bill of complaint {or petition), for answer thereto 
 says : (f) 
 
 He admits that he did, about the time mentioned in said bill 
 {or petition), make a verbal contract with the complainant (o?* 
 petitioner) to build for him a house, and to furnish all the ma- 
 terials and labor necessary to erect the same; and admits that 
 a part of the terms of said contract are substantially mentioned 
 in said bill {or petition); but this defendant denies that said 
 contract is correctly set forth in said bill {or petition), but, on 
 the contrary, avers tliat in said contract it was expressly agreed 
 and contracted that the aom.p\2im&nt {or petitioner) should fur- 
 nish only the best quality of lumber and materials for said 
 building, and that all the flooring should be well seasoned, 
 clear, and free from knots and other imperfections, and should 
 be well laid and blind nailed, and plained ofl:' smooth, after 
 being laid, so as to make the same level and smooth. 
 
 And this defendant avers, that the complainant (or ^«fo'- 
 tioner) did not use the best quality of lumber in constructing 
 said house, but did use a -very inferior kind of lumber; and 
 this defendant especially states that the flooring used in said 
 house was not well seasoned, and not clear and free from 
 knots and other imperfections, but, on the contrary thereof, 
 was wholly unseasoned, and was green, and full of knots and 
 other imperfections; and that, by reason thereof, the said floor 
 has shrunk and warped, and become loose and unfit for use; 
 that the large number of knots in said flooring have become 
 loose and have fallen out, and left holes, and so this defendant 
 says that the complainant has not and did not comply with his 
 said contract in that respect. 
 
MECHANIC'S LIEN. 651 
 
 Answer — Answer to Owner Defendant to Petition for Mechanic's Lien, 
 
 This defendant furtheranswerinigr, admits, that soon after the 
 said house appeared to be finished and completed, tlie com- 
 plainant {or petitioner) asLme to this defendant and stated that 
 he had completed and finished the said house, and desired this 
 detendaut to examine and accept the same as fully completed 
 and finished, according to the terms of the contract, and this 
 defendant did look at said house, and the same appeared to be 
 built and completed in a substantial and workmanlike manner, 
 as, so far as this defendant could then see, the same appeared 
 to be constructed of good material; but this defendant says he 
 could not see, and could not by any means then determine or 
 know, whether said flooring was of seasoned or unseasoned 
 lumber. 
 
 And this defendant avers, that the complainant {or peti- 
 tioner) then assured this defendant that all the materials in 
 said house were of the best quality, and that all the lumber 
 put in said house was well seasoned and dry; and this defend- 
 ant, believing the said representations of the complainant {or 
 petitioner), and acting on the same, did accept the said house 
 from the complainant {or petitioner), and did shortly there- 
 after move into and occupy the same with his family. 
 
 And this defendant further answering avers, that within a 
 few days after he commenced living in said house, and had 
 begun to have fire^ in the different rooms, so as to dry out 
 and season the said lumber in said floors, the same began to 
 warp and shrink, and did continue to season and warp and 
 shrink, until many of the boards became loose, and the said 
 floors in the said house, and in all of the same, becanie shrunk 
 and warped and loose; and this defendant has been compelled 
 to expend a large sum of money, to wit, the sum of dol- 
 lars, in laying down new floors in the rooms of said house; 
 and this defendant avers, that the damage which he has sus- 
 tained by reason of the said failure of the complainant {or pe- 
 titioner) to use good seasonqd lumber in said floors, and by 
 reason of the putting in of said green and unseasoned lumber 
 in said floors in said house, greatly exceeds the whole amount 
 which the complainant {or petitioner) claims in his said bill 
 {or petition) to be due to him. {Here set forth any other 
 matter by way of defensel) 
 
 And this defendant further answering, denies that the 
 complainant {or petitioner), is entitled to the relief or any part 
 thereof, in the said bill {or petition) demanded ; and prays the 
 same advantage of this answer, as if he had pleaded or de- 
 murred to the said bill of complaint {or petition); and prays 
 
652 MECHANIC'S LIEN. 
 
 Answer — Ans.' to Petition for Mechanic's Lien, Setting up Discharge of Lien. 
 
 to be dismissed with his reasonable costs and charges in this 
 behalf most wrongfully sustained, etc. 
 
 CD, 
 
 Sol. for defendant. 
 ijf oath is not waived, add affidavit.) 
 
 No. 243. Answer to a petition for a inechanio''s lien, setthig 
 up a discharge of lien. 
 
 {Proceed as in No. 242, ante, to the asterisk (*) amd then 
 proceed.) 
 
 This defendaut admits that he did make a contract with the 
 petitioner, as set forth in his said petition, and' that the peti- 
 tioner did construct a house substantially as required in said 
 contract; but this defendant avers that the petitioner is not 
 entitled to a lien on the said premises, in any sum whatever; 
 because lie says, that after the completion of the said buildinj^ 
 by the petitioner, and before the commencement of this suit, 
 and on, etc., the petitioner applied to this defendant for a set- 
 tlement of the matters relating to said contract, and upon such 
 settlement and adjusttnent of acconnts, there was Ibund to be 
 due to the petitioner on said contract, a balance of dol- 
 lars; and the petitioner then required of this petitioner secur- 
 ity for the amount so remaining due; and this defendant did 
 then and there execute and deliver to the petitioner a promis- 
 sory note of that date, for the said sum of dollars, paya- 
 ble in after date; and tiien and there, at tlie request of 
 
 the petitioner, procured one E F, to sign said note with this 
 ddendant, as security for said amount, and the said E F did 
 sign the same accordingly; and this defendant avers that the 
 petitioner did then and there accept the said note from this 
 defendant in full paynient and discliarge of the said Ijalauce 
 so being and remaining due on said con tract as aforesaid; and 
 so this defendant says, that the lien of the petitioner, if any 
 he ever had, has been canceled, waived and fully discharged. 
 
 And now having fully answered the said petition, this de- 
 fendant prays to be dismissed with his costs and charges in 
 this behalf most wronsyfully sustained, etc. 
 
 "^ ^ CD. 
 
 Sol. for defendant. 
 {If oath is not waived, add affidavit.) 
 
MECHANIC'S LIEN. G53 
 
 Answer— Answer of Defendant Setting up Lien for Materials, etc. 
 
 N'o. 244. Answer of defendant setting up a lien for mate- 
 rials, etc. 
 
 [Proceed as in JVo. 242, to the asterisk, (*) and then proceed:) 
 This defendant answering saj^s, it may be true, for anything 
 this defendant knows to the contrary, that,^etc. {JETere sub- 
 stantially set forth the statement of the petitioner's claim/) 
 but this defendant is an utter stranger to all and every such 
 matters, and can neither admit nor deny the same, but calls 
 for strict proof of such matters. 
 
 This defendant further answering says, that on, etc., the 
 said defendant, C D, was engaged in building a mill on, 
 etc. [Here describe the premises on which the building was 
 erected;) as in said petition is, alleged ; and at the same time 
 this defendant was a dealer in lumber, at, etc., and on, etc., 
 the said defendant, G D, applied to this defendant, and de- 
 sired this defendant to furnish him a large quantity of luni- 
 ber to be used in and about the construction of the said mill, 
 and thereupon this defendant did agree with said defendant, 
 I), that he would furnish him such lumber as he, the said 
 C D, might, from time to time order, or desire for use in 
 constructing said mill ; and this defendant did afterward, on, 
 etc., and at different times, furnish to the .defendant, C D, 
 divers large quantities of lumber, to be used in constructing 
 said mill on said premises ; and this defendant attaches to 
 this answer, and as a part thereof, a bill of said lumber so 
 furnished, marked "Exhibit A," which contains a particular 
 description of said lumber, with the dates when the same was 
 furnished, and with the price and value of each item or 
 article of lumber set opposite the same ; and this defendant 
 avers that all the items or articles of lumber in said bill men- 
 tioned, were furnished to the defendant, C D, under the said 
 agreement, at the times specified in said bill, to be used in 
 the construction of said mill ; and that each and all of the 
 said items of lumber were actually used in the construction 
 of said mill. 
 
 _ And this defendant, further answering, says, that at the 
 time of the selling said lumber to the defendant, C D, there 
 was no agreement as to the price or value of the same, nor 
 was any agreement -made as to when the defendant D 
 should pay for the same ; and this defendant avers that he is 
 by law entitled to ask and receive for said lumber as much as 
 the same was reasonably worth, and was entitled to receive 
 his pay therefor as soon as said articles were delivered ; and 
 
654 . MECHANIC'S LIEN. 
 
 Cross-Bill. 
 
 that the last of said articles was delivered on, etc. ; and that 
 
 the whole amount of s^d bill, to wit, the sum of dollars, 
 
 was justly due and payaUe to this defendant from the defend- 
 ant, C D on the day last named ; and that the same is still 
 due and remains wholly unpaid. Wherefore, this defendant 
 claims and insists that he is entitled to have a lien on the 
 said premises, equal to that of the petitioner or any other 
 person having a lien thereon for work done or materials fur- 
 nished. 
 
 This defendant, therefore, prays that on the hearing of this 
 cause, a decree may be made by the court, giving to this de- 
 fendant a lien upon said premises for the said sum of 
 
 dollars ; and that the said sum may be decreed to be paid to 
 this defendant and that in default of such payment the said 
 premises may be decreed to be sold, and the proceeds applied 
 according to the statute in such case made and provided. 
 
 SECTION V. 
 
 CEOSS-BILL. 
 
 Ifo. 245. Cross-bill iy a defendant to a Mil or petition for 
 a mechanic's lien to enforce lien of defendant. 
 
 State of Michigan. 
 
 }The Circuit Court for the County of . In Chancery. 
 
 To the Circuit Court for the County of . In Chancery. 
 
 Your orator, A B, of, etc., respectfully represents unto this 
 honorable court, that on, etc., C D, of, etc., one of the defend- 
 ants hereinafter named, exhibited in this honorable court his 
 bill of complaint {or petition) against one E F and G H, of, 
 etc., defendants hereinafter named, and your orator, to enforce 
 a mechanic's lien therein described, and thereby praying that, 
 etc. {Here set forth the svhstance of the prayer f) and yonr 
 orator, being duly served with process, appeared and put in 
 his answer thereto, as by the said bill {or petition) and other 
 proceedings in the said cause, now remaining on file and of 
 record in this honorable court, reference thereto heing had, 
 will more fully appear. 
 
 Tour orator further represents, that it is true as stated in 
 said original bill, that the said E F named in said bill was, 
 on, etc., engaged in building a house on the premises de- 
 scribed in said original bill, to wit: {Here describe tJie prem- 
 ises,) of which said lot the said E F was then, and still is, the 
 owner. 
 
MECHANIC'S LIEN. 655 
 
 Cross-Bill. 
 
 And your orator further represents, that on, etc., the de- 
 fendant, E F, applied to your orator, who is a brick and stone 
 mason by occupation, and desired him to do certain work, 
 that is to say, to build the foundation, basement and cellar 
 walls, and chimneys of said house; and, thereupon, your ora- 
 tor and the said E F contracted that your orator was to build 
 
 the foundation, basement and cellar walls, and chimneys 
 
 to said house, all of said work to be done under the direction 
 of the defendant E F or his agent; and the said E F then and 
 there agreed to and with your orator to pay him for such 
 
 work the sum of dollars per thousand, according to the 
 
 customary manner pf measuring such work. 
 
 And your orator further represents, that in pursuance of 
 said contract, he did, on, etc., the time indicated by the said 
 E F, commence work for the said E F under said contract, 
 and did so continue to work until all of said work, and all the 
 work that the said E F desired your orator to do was fully 
 completed. 
 
 Your orator further represents, that all said work was done 
 under the direction of the said E F, and in the manner indi- 
 cated by him; and that under said contract your orator laid 
 
 up in said walls thousand brick, as shown by the bill of 
 
 items hereto attached, marked " Exhibit A," and made a part 
 hereof; that the whole amount due your orator for said work 
 is r dollars. 
 
 Your orator further represents, that no time was agreed 
 upon when said work was to be paid for, but your orator 
 avers, that by the understanding of the parties, the said sum 
 became due to your orator, as soon as said work was finished; 
 and your orator represents that the said work was all finislied 
 and completed on, etc; and that the said sura of dol- 
 lars became due on the said day last aforesaid, and still re- 
 mains wholly unpaid. 
 
 Your orator further represents, that all of said work 
 was done and finished within one year from the time of com- 
 mencing to do said work, as fully appears by the dates hereto- 
 fore given; and by reason of the premises, and of the failure 
 of the said E F to pay him the said sum of money so due as 
 aforesaid, your orator is entitled to a lien on the said premises 
 to secure your orator the sum so due him as aforesaid. 
 
 {Here insert the substance of paragraphs 8, 9 and 10 of 
 form No. 240, substantially as therein set forth. 
 
 Forasmuch, therefore, as your orator is without remedy in 
 the premises, except by filing this his cross-bill in the said 
 proceedings, commenced by the said C D against your orator 
 
656 MECHANIC'S LIEN. 
 
 Hearing Decree and Sale. 
 
 and the said E F and & H, and to the end that the said C D, 
 E F and G H, who are hereby made parties defendants to 
 this cross-bill, may be required to make full and direct an- 
 swer to the same, iut not under oath, the answer under oath 
 being hereby waimed; that an account may be taken of the 
 amount due your orator; and that the defendant E F be de- 
 creed to pay your orator the amount which shall be found to be 
 due; that the rights and interests of each and all of said parties 
 may be ascertained and adjusted; and that your orator may 
 have a lien on said premises for the amount of his said claim; 
 and in case default shall be made by the defendant E F in 
 making said payment within the time limited as aforesaid; 
 that the said premises be sold under the direction of this 
 court, and the proceeds of said sale be applied to the payment 
 of such claims, including your orator's, as may appear to be 
 liens upon sucli premises; and that your orator may iiave 
 such further and other relief in the premises as the nature -of 
 his case shall require, and to your honor may seem meet. 
 {Attach exhibits; add p^'ayer for process and affidavit.) 
 
 ' SECTION VI. 
 
 IIEAEINft DECREE AND SALE. 
 
 Every material question of fact must be submitted to a jnry 
 if i-eqnired by either party, or if it shall be thought proper 
 by the court; and such trial shall, be had upon a question 
 stated, or upon an issue found under direction of the court 
 or otherwise, as it shall order, {a) The vei*dict is not controll- 
 ing- upon the court as at common law. It is analagous to a 
 verdict on a feigned issue in a chancery cause, and is intended 
 merely as an aid ta,the court, (b) Where the contract on 
 which the lien is founded is verbal, and its terms are disputed, 
 the lien will not be sustained unless the evidence upon the 
 part of the complainant is clear and decisive as to the terras of 
 the contract, and so preponderates as to satisfy the court of 
 the correctness of complainant's claims, (c) 
 
 The court must examine all the claims that are presented, 
 
 (rt) Laws 1879, p. 278. 
 
 (6) Willard v. Magoon, 30 Mich. 273; Dunn v.. Dunn, 11 Mich. 285. 
 
 (c) Clark v. Raymond, 27 Mich. 456. ■ 
 
MECHANIC'S LIEN. 657 
 
 Hearing Decree and Sale — Decree — Decree allowing Lien, etc. 
 
 and shall ascertain and determine the amount due to each 
 creditor, who has a lien of the kind before mentioned upon 
 the estate in question, and every such claim that is due abso- 
 lutely, and without any condition, although not then payable, 
 shall be allowed with a rebate of interest to the time when 
 it would become payable, (a) 
 
 Where the owner of the land fails to perform his part of 
 the contract, and by reason tliereof the other party without 
 his default is prevented from completely performing his part, 
 he will be entitled to a reasonable compensation for as much 
 ■ tnereof as he has performed, in proportion to the price stipu- 
 lated for the whole, and the court must adjust his claims ac- 
 cordingly, (h) 
 
 Decree. — Upon a final decree, the court may order a sale of 
 the buildings or machinery separate, or the lands, buildings, 
 wharf and machinery together, by the sheriff, circuit court 
 commissioner or receiver, or may order the property into the 
 hands of a receiver, to be leased or rented from time to time, 
 under the direction of the court, until the liens shall be dis- 
 charged, or make such other order or disposition of the prem- 
 ises as shall be just. If upon the coming in and confirmation 
 of the final report, any portion of the liens shall be still un- 
 paid, the court may enter judgment and decree for the same, 
 and execution shall issue as upon other decrees and judgments 
 of the court, (c) 
 
 The final decree sustaining a lien should expressly a,djudge 
 the existence of contract relations between the parties, and 
 the establishment of the alleged lien upon the property de- 
 scribed, {d) 
 
 No. 246. Decree allowing lien and for a sale of the Remises. 
 
 {Caption, and title of cause as in No. 105, aate.) 
 This cause having come on to be heard upon the bill {or 
 
 (a) Laws 1879, p. 277. 
 (6) Laws 1879, p. 277. 
 (c) Laws 1879, p. 277. 
 \d) Willard v. Magoon, 30 Mich. 273. 
 42 
 
658 MECHANIC'S LIEN. 
 
 Hearing Decree and Sale. 
 
 petition) of complaint herein, the answer thereto, the replica- 
 tion of the complainant {or petitioner) to such answer, and 
 the court having heard the evidence, both oral and documen- 
 tary, and the same having been argued by the counsel for the 
 respective parties, and being fully advised in the premises, 
 doth find that the matters in the said bill {or petition) are 
 true ; and tliat, etc., {Here setfoHh the subst'ince of the facts 
 as found, or stated in the iill or petition) ; and that there is 
 now due the complainant {or petitioner) the sura of dol- 
 lars, for which sum he is entitled to a lien on the said prem- 
 ises, to wit : [Here describe the lot on which huilding was 
 erected,) in accordance witli the statute in such case provided. 
 It is therefore ordered, adjudged and decreed, that the 
 complainant {or petitioner) have a lien on the said described 
 premises for the amount so found to be due from the defend- 
 ant C D; that the defendant C D pay to the complainant 
 
 {or petitioner) the said sum of dollars, with interest 
 
 Jrom the date of this decree, within — days from this date; 
 and in case the said defendant C D shall make default in the 
 payment of the said sxim of money within the time herein 
 limited, that S W 0, one of the circuit court commissioners 
 of this court, shall make sale of the said premises, or such 
 part or parts thereof as may become necessary to pay tlie 
 amount aforesaid, at public vendue, to the highest and best 
 bidder for cash, after having first given public notice of the 
 time and place of said sale, and the terms thereof, as provided 
 bj' the statute ; and upon the making of such sale the said 
 master will issue a certificate of purcliase to the purchas- 
 er, as provided by law ; and out of the proceeds of such 
 sale the said commissioner will pay first, the costs of these 
 proceedings, including his commissions and the expenses 
 of the sale; and second, pay to the complainant {or petitioner) 
 
 the said sum of dollars, and the interest due on tlie same; 
 
 and the surplus, if any, to the defendant C D ; and the said 
 commissioner will report 'his doings in the premises to the 
 court. 
 
 No. 247. Decree for mechanic''s lien, where there are other 
 proceedings pending unadjusted. , 
 
 [Caption and title of ccmse as in No. 105, ante.) 
 
 And now this cause coming on to be heard on the com- 
 plainant's bill, and the answer of C D, one of the defendants, 
 and the replication of the complainant thereto, and the court 
 having heard the evidence in this case, and being fully ad- 
 
MECHANIC'S LIEN. 659 
 
 Hearing Decree and Sale. 
 
 vised in the premises, doth find that the allegations of the 
 complainant's bill are substantially true ; and that the said 
 defendant D did make a contract with the complainant for 
 the purchase of a quantity of lumber, to be used in the erec- 
 tion of a dwelling on the following described premises, to wit: 
 {H&re describe the premises on which the huilding was 
 ' erected;) and that the complainant did, under said contract, 
 furnish to the defendant C D a large quantity of lumber, to 
 be used in erecting said house, and that the said lumber was 
 actually delivered on said lot on, etc. 
 
 And it appearing to tiie court that chere is now due to the 
 complainant from the said defendant C D, for said lumber, 
 
 the sum of dollars ; and the court being fully advised in 
 
 the premises, doth find tliat the complainant is by law en- 
 titled to a lien on said premises for said amount ; the court 
 doth therefore oi'der, adjudge and decree, that the said de- 
 fendant G D pay to the complainant A B the said sum of 
 
 dollars within — days from filing of this decree, with inter- 
 est on 'the same from the date of the tiling hereof until the 
 same is paid ; and doth further order that the comvlaiiiant 
 have a mechanic's li^n on said premises with the appurte- 
 nances for the said sum of dollars, and that said lien 
 
 commence and take efiect from, etc.^ and because other 
 . claims for mechanic's lien are now in this cause pending and 
 undetermined, the court will hereafter make such further de- 
 cree as to equity shall seem fit. 
 
 The following is a form prepared under the statute of Il- 
 linois, which, in its requirements is very similar to our own. 
 It can therefore be readily adapted to meet a like case arising 
 under Michigan laws. 
 
 ' No. 248. Decree allowing mschaniG's lien where there are 
 several liens and a mortgage to le adjusted. 
 
 {Caftion, and title of cause as in No. 105 ante-, 210.) 
 
 This cause having come on to be heard upon the original 
 bill of complaint, the answers thereto, and the replications to 
 such answers, and the several cross-bills, answers to such 
 cross-bills and replications, and the other pleadings and pro- 
 ceedings heretofore had in tliis cause; and the court having 
 heard the evidence, both documentary and oral, sustaining the 
 allegations of the said pleadings, and as to the value of the 
 premises mentioned in the several pleadings in this cause, to 
 wit : [Here describe the premises on which the building was 
 erected^ prior to the making of the improvements referred to 
 
660 MECHANIC'S LIEN. 
 
 Hearing Decree and Sale. 
 
 in the pleadings, and the additional value which said improve- 
 ments have given to the said premises; and the court doth 
 find that, in addition to the liens heretofore decreed in this 
 cause, the said E F did furnish to C D, one of :he defendants, 
 a large quantity of brick, to be used iji constucting the said 
 building on said premises, and that the same were furnished 
 under a contract for that purpose, and were to be and were 
 used by the defendant C D in constructing said house on said 
 premises, and that there is due the said E F from the defend- 
 ant C D the sum of — dollars for the materials so furnished ; 
 
 and the court doth therefore order, adjudge and decree that 
 
 the said C D do pay the said E F the said sum of dollars 
 
 hs hereinafter provided, and that the said E F have a lien on 
 said premises to secure the same, as the law provides. 
 
 And the court doth further find that, in addition to the liens 
 heretofore decreed in this cause, the said G- H did furnish to 
 the defendant 1) a lafge quantity of lumber to be used in 
 the erection of said house on the said premises, and that said 
 lumber was furnished under a contract for that purpose, and 
 was to be and was used by the defendant C D in construct- 
 ing the said house on said i remises, and that there is due to 
 tlie said G H from the deiciidant C D the sum of dol- 
 lars for the lumber so furnished; and the court doth therefore 
 order, adjudge and decree, that the defendant C D do pay to 
 
 the said G H tiie said sum of dollars, as hereinafter 
 
 provided, and that the said G H have a lien on the said prem- 
 ises to secure the same, as the law directs. 
 
 And the court having heretofore, on, etc., made a decree in 
 this cause, that the defendant C D was indebted to the com- 
 plainant A B in the sum of dollars, and that the com- 
 plainant have a lien on the said premises to secure the pay- 
 ment thereof; and the court having also, by another decree 
 heretofore, on, etc., rendered in this cause, ascertained andde- " 
 creed that L M, one of the parties hereto, was the holder of a 
 mortgage on the said premises, wliich was a lien on, etc., prior 
 to the time when any of the mechanic's liens mentioned in 
 this eause commenced to take effect; and the court having 
 heard the arguments of the counsel for the respective parties, 
 and being fully advised in the premises, doth find that the said 
 premises, up to and before the time of tlie commencement of 
 the making of the said improvements thereon, for which liens 
 
 in this case are sought to be enforced, was worth dolijars; 
 
 and that the said buildings and improvements mentioned in 
 said pleadings, and for the construction of which the several 
 claims for liens in this cauee are sought to be enforced, have 
 
MECHANIC'S LIEN. 661 
 
 Hearing Decree and Sale— Costs — Sale, 
 
 increased the value of said premises -dollars, so that the 
 
 said premises are now worth dollars. 
 
 The court doth further order, adjudge and decree, chat the 
 defendant C D do pay the said several sums in this decree, 
 
 and the several decrees hereinbefore mentioned within 
 
 days from this date; and in case of default in the payment )f 
 said sums, or either of them, that then and in that case, S W" 
 O, a "'rcuit court commissioner of this court, is orderea '-'- sell 
 said premises at public auction, to the highest bidder ioi cash ; 
 that said sale be made at *.he front door of the court house in 
 , in the county of albresaid; and that the said com- 
 missioner give public notice of the time and place and terms 
 of said sale, such as the law requires in case of sheriff's sale 
 of land on execution, and +hat the said commissioner expcute 
 to the purchaser or purchasers at such sale, a certificatf of 
 purchase for the premises sold, according to law. 
 
 It is further ordered, adjudged and decreed, that as to 
 
 part of the proceeds of said sale, the said L M, tlie holder of 
 the said mortgage, shall have a first and prior lien, and that 
 
 as to the remaining part of the proceeds aforesaid, the 
 
 said complainant A B, and the said E F and G H, shall share 
 jtro rata to the amount of their several claims, and as to the 
 
 part of the said proceeds of sale, the said A B, E F and 
 
 G H shall have a j?ro rata secondary lien of the said L M, tho 
 holder of the said mortgage; and the said commissioner is 
 ordered, out of the proceeds of said sale, to pay, first, the costs 
 of this proceeding, including his commissions and the expenses 
 of sale, which are adjudged against the defendant C I), and 
 that the remainder he shall distribute between the said par- 
 ties as hereinbefore provided; and should any overplus remain 
 after paying all claims in full, then the said commissioner 
 will pay the same to the defendant C D, the owner of said lot. 
 The said commissioner will report his doings herein to the 
 court at the next term thereof, to which term this cause is 
 now continued. 
 
 Costs. — The costs are subject to the discretion of tile court, 
 and must be paid out of the proceeds of the sale, or by any 
 of the parties of the suit, as justice may require, {a) 
 
 Sale. — If any part of the premises can be separated from 
 the residue and sold without damage to the whole, and if the 
 value thereof is sufiicient to satisfy all the claims proved in 
 
 (.a) Laws 1879, p. 278. 
 
662 MECHANIC'S LIEN. 
 
 Hearing Decree and Sale — Redemption — Distribution of Proceeds, etc. 
 
 ihe case, the court may order a sale of tliat part of it, if it 
 shall appear to be most for the interest of all the persons con- 
 cerned, (a) Sales are made in the same manner as in ordi- 
 nary cases of mortgage foreclosure, unless otherwise directed 
 by the court. (5) 
 
 Redemption. — All lands sold may be redeemed at any 
 time within fifteen months from the time of filing the peti- 
 t'on or bill for the foreclosure of the lien, (d) 
 
 Distribution of proceeds. — When the claims against the 
 estate are all ascertained at the time of ordering the sale, the 
 court may at the same time order the officer to pay over and 
 distribiite the proceeds of the sale, after deducting all lawful 
 charges and expenses to and among the several creditors, to 
 the amount of their respective claims, if there be sufficient 
 therefor. If there is not sufficient, then the proceeds must 
 be divided and distributed amongst the creditors in propor- 
 tion to the amount due to each of them. But in such case the 
 original contractor must be subrogated to the rights of his 
 sub-contractors, who shall first be paid in full, [ct) 
 
 Proceeds paid into court. — If such claims should not be 
 ascertained when the sale is ordered, or if, for any other rea- 
 son, it should be deemed proper to postpone the order of dis- 
 tribution, the court may direct the officer to bring the pro- 
 ceeds of the sale into court, to be disposed of according to the 
 order made. If in consequence of the claims of attaching 
 creditors, or for other cause, the whole can not be properly 
 distributed at once, the court may make two or more succes- 
 sive orders of distribution, as the circumstances may re- 
 quire, (e) 
 
 Surplus. — Should there be any surplus of the proceeds of 
 
 {a) Laws 1879, p. 277. 
 (6) Laws 1879, p. 277. 
 
 (c) Laws 1879, p. 277. 
 
 (d) Laws 1879, p. 277. 
 (f ) Laws 1879, p. 278. 
 
MECHANIC'S LIEN. 663 
 
 Hearing Decree and Sale — Discharge — Appeal. 
 
 the sale after making all the payments before mentioned, it 
 .must be forthwith paid over to the owner of the land; but 
 such surplus will be liable to be attached or taken in execu- 
 tion in like manner, as if it proceeded from a sale made on 
 execution, {a) 
 
 When there are several attaching creditors, they will, as 
 between themselves, be entitled to be paid, according to the 
 order of their respective attachments. But when several lien 
 creditors, who are entitled to the lien provided for in this 
 chapter, have all equal rights as between themselves, and the 
 fund shall be insufficient to pay the whole, they must sliare 
 it equally in proportion to their respective claims, (o) 
 
 Discharge. — "When the debt secured by the lien is fuily 
 paid, the creditor must execute to such owner, part owner, 
 lessee or other person having an interest or title in such lands, 
 buildings or structure affected by such lien, a discharge as m 
 case of a discharge of a mortgage, or shall indorse such dis- 
 charge upon such claim of lien filed, and upon refusal to do 
 so on demand, will be subject to like penalties as are provided 
 for refusal to discharge mortgages which are fully paid. (3) 
 
 Appeal. — Appeals may be taken from final orders and de- 
 crees, in the same manner as is provided for appeals in ordi- 
 nary chancery cases. An appeal will not be allowed when 
 such order or decree has been paid and satisfied in whole or 
 in part, [d) In preparing an appeal a case must be settled 
 in the same manner as in cases heard in open court. 
 
 (a) Laws 1879, p. 278. 
 (6) Laws 1879, p. 278. 
 
 (c) Laws 1879, p. 278. 
 
 [d) Laws 1873, p. 119. 
 
664 INFANTS. 
 
 Suits for — Next Friend — How Appointed. 
 
 CHAPTER XL. 
 
 INFANTS. 
 
 Section 1 . Suits for. 
 
 2. ^cits against. 
 
 3. Sale of Heal Estate of Infants and 
 
 Incompetent Persons. 
 
 SECTION I. 
 
 SUITS FOE. 
 
 It is prnrvlded by the statute, thatwhen an infant shall have 
 a right of action to recover any real property or the posses- 
 sion thereof, or to recover any debt or damages, he shall be 
 entitled to maintain a suit thereon; and the same shall not 
 be delayed or deferred on account of the infant not being of 
 full age. (a) 
 
 Next friend. — Before any process can issue in the name of 
 an infant, a competent and responsible person must be ap- 
 pointed to appear in the suit as the next friend of the infant, 
 who shall be responsible for the costs thereof. (5) If a bill is 
 filed without the appointment of a next friend, the suit may 
 be dismissed with costs against the solicitor, (o) 
 
 How appointed. — On the petition of the infant, or, if he is 
 too young to make such petition, then on the petition of some 
 relative or friend, {d) with the written consent of the person 
 proposed for next friend, such written consent being duly 
 acknowledged or proven before the oflBcer making the appoint- 
 ment, a next friend may be appointed by a circuit judge, or 
 
 (a) Comp. L. 1871, §§ 6530, 6387. 
 
 [h) Matter of Fritz, 2 Paige, 374; Comp. L. 1871, § 6531. 
 
 (c) 2 Dan. Ch. Pr. 68. 
 
 [d) Matter of Fritz, 2 Paige, 374. 
 
INFANTS. 665 
 
 Suits for — Petition for Appointment of Next Friend, etc. 
 
 circuit court commissioner, (a) The petition should not be 
 entitled in any suit. 
 
 JVo. 249. Petition for appointment of next friend. 
 
 State of MioHioAN. 
 
 The Circuit Court for the County of , In Chancery, 
 
 In the matter of the 
 
 appointment of a 
 
 next friend for' A 
 
 B, an infant. 
 To the Hon. A J M,' 
 
 Circuit Judge. 
 
 The petition of A B, an infant under the age of twenty-one 
 years, to wit, of the age of nineteen years, a resident of the 
 
 township of , in said county, respectfully shows unto 
 
 your honor: 
 
 That a suit is about to be brought in this court, by and on 
 behalf of your petitioner {and otheri)^ against D. Your 
 
 petitioner therefore prays that G M B, of the , of — , 
 
 in said State, may, by an order of this court, be appointed the 
 next friend of your petitioner, to appear for him, as such in 
 said suit. And your petitioner will ever pray, etc. A B. 
 
 CSM, 
 
 Solicitor for petitioner. 
 
 State of MicniaAN, ] 
 
 County of , j ®^- 
 
 On this day of , A. D. 18 — , personally appeared 
 
 before me, a notary public in and for said county, the above 
 named petitioner, who made oath that he has heard read the 
 foregoing petition by him subscribed, and knows the contents 
 thereof, and that the same is true of his own knowledge, ex- 
 cept as to matters therein stated to be on his information and 
 belief, and as to those matters he believes it to be true. 
 
 J ME, 
 Notary Public, County, Mich. 
 
 No. 250. Consent to iecome next friend. 
 
 I hereby consent to be appointed the next friend of the 
 within named petitioner, and to appear for him as such, in 
 the suit named in the within petition. G M B. 
 
 Dated, etc. 
 
 (a) Comp. L. 1871, §§ 6532, 6533; Uames v. Oatman, 2 Doug. 430. 
 
666 INFANTS. 
 
 Suits for — Order Appointing Next Friend — Bond of Next Friend. 
 
 State of Michigajst, ) 
 Gonntyof , P®* 
 
 On this day of , A. D. 18 — , before me, the sub- 
 scriber, a notary public, in and for said county, personally 
 appeared G- M B, to me known to be the same person wJio 
 signed the foregoing consent to become next friend for D, 
 an infant, and acisnowledged that he signed and executed the 
 same, and for the purposes therein stated. EMI, 
 
 Notary Public, County, Mich. 
 
 Upon tlie foregoing petition, consent and acknowledgment 
 being presented to the judge, he will make the necessary order 
 appointing the next friend. 
 
 Ifo. 251. Order appomtmg neasb friend. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 In the matter of the 
 
 petition for a next 
 
 friend 
 
 for 
 
 A B, an infant. 
 
 Upon reading the petition of A B, an infant, praying for 
 the appointment of G M B as his next friend, in a suit about" 
 to be brought by him, the said A B, against C D, and the 
 written consent and acknowledgment of said G M B, it is or- 
 dered that the said G M B be, and he is hereby appointed 
 the next friend of said A B, to appear for him as such, in the 
 suit referred to in said petition, upon his executing a bond to 
 
 said A B, in the penal sum of dollars, with two sufficient 
 
 sureties, conditioned that he will duly accoimt to such infant 
 for all money that may be recovered in said suit. 
 
 A JM, 
 Circuit Judge. 
 
 The order appointing a next friend must be filed in the 
 office of the register of the court, before any bill of complaint 
 can be filed in the cause, (a) 
 
 Bond of next friend. — Before any person will be appointed 
 next friend for an infant to recover any debt or damages, he 
 
 (a) Comp. L. 1871, § 6536. 
 
INFANTS. 667 
 
 Suits for — Bond of Next Friend. 
 
 miTSt, if required by the officer to whom the applicatiou for 
 such appointment shall be made, execute a bond to such in- 
 fant, in a penalty at least double the amount claimed in such 
 suit, with such sureties as shall be approved by such officer, 
 conditioned that such next friend shall duly account to such 
 infant for all money which may be received therein, {a) Such 
 bond must be delivered to such officer before such appoint- 
 ment is made, and must be by him filed in the office of the 
 judge of probate of the county in which such infant resides; 
 and such officer will be entitled to receive from such next 
 friend, the fee allowed by law to such judge of probate for 
 filing such bond, to be paid by him. (b) 
 
 Ifo guardian ad litem for an infant defendant, or next friend 
 of an infant complainant, unless he has given security to the 
 infant according to law, shall, as such guardian, receive any 
 money or property belonging to such infant, or which may be 
 awarded to him in the suit, except such costs and expenses as 
 may be allowed by the court to the guardian out of the fund, 
 or received by the infant in the suit. Neither shall the gen- 
 eral guardian of an infant receive any part of the proceeds of 
 the sale of real property belonging to such infant, sold under 
 a decree or order of the court, until the guardian has given 
 such further security for the faithful discharge of his trust as 
 the court may direct, (c) 
 
 The court, before giving up control of a fund belonging to- 
 infant litigants, should see that the rights of their guardian 
 ai litem, and his solicitor, are secured, [d) 
 
 In a chancery order affecting the rights of infants, where, 
 to bind them, it was necessary to procure such order, and 
 where nothing more has been done by them, or on their be- 
 half, than to present to the court such facts as show their 
 rights in the matter, costs should not be awarded against 
 thorn, (e) 
 
 (a) Comp. L. 1871, § 6534. 
 
 (6) Comp.'L. 1871, §6535. 
 
 (c) Chancery Rule 94; V/esthrooTcY. Comstock, Walk. Ch. 314. 
 
 {d) Sheahan v. Wai/ne Circuit Judge, 42 Mich. 69. 
 
 {e) Smiths. Smith, 13 Mich. 25S. 
 
668 INFANTS. 
 
 Suits Against. 
 
 SECTION II. 
 
 SUITS AGAINST. 
 
 After the issuing and service of process against any infani 
 defendant; the suit shall not be any further prosecuted, until 
 a guardian for such infant shall have been appointed, {a) 
 
 Such appointment shall be made upon the request of such 
 defendant, and upon the written consent of any competent 
 person proposed as guardian, by the court, or any circuit judge, 
 or any circuit court commissioner for the county. (5) 
 
 If such infant defendant neglect, for tvsrenty days after the 
 return day of the process, by which the suit was commenced, 
 to procure the appointment of a guardian to defend the suit, 
 the plaintiff may obtain an order from any judge or officer of 
 the court mentioned in the preceding section, requiring such 
 infant to procure the appointment of a guardian within ten 
 days after the service of such order, (c) 
 
 If a guardian be not appointed within the time specified in 
 such order, the judge or officer granting the same, shall ap- 
 point some discreet person to be guardian for such infant, in 
 the defense of such suit, {d) 
 
 No person appointed guardian for the purpose of defending 
 a suit against an infant, shall be liable for the costs of such 
 suit, unless specially charged by the order of the court for 
 some personal misconduct in such cause, {e) 
 
 After the guardian is appointed, he causes his appearance 
 to be entered. He must conscientiously and vigorously de- 
 fend the infant's case. We have hitherto more fully considered 
 this subject. (_/) 
 
 In foreclosure suits, general guardians do not represent their 
 
 (») Corap. L. 1«71, § 6537. 
 (6) Comp. L, 1871, § 6538. 
 (c) Comp. L. 1871, § 6539. 
 {d) Oomp. L. 1871, § 6540. 
 (e) Comp. L. 1871, § 6541. 
 (/) Ante, page 131, 132. 
 
INFANTS. 669 
 
 Suits Against — Petition by Infant for Appointment of Guardian, etc. 
 
 wards, and the solicitors of such guardians can not bind the 
 infants. JSTor can guardians ad litem bind them except in 
 strict accordance with the rules for their protection, (a) The 
 guardian ad litem, in a foreclosure suit should file a separate 
 answer, and not join with other defendants. (5) 
 
 No 252. Petition hy infant for appointment of guar- 
 dian ad litem. 
 
 (Title of court and cause.") 
 
 To the Circuit Court for the County of . In Chancery. 
 
 T)ie petition of C D, of the township of , in the county 
 
 of , and State aforesaid, the {or a) defendant in this suit, 
 
 respectfully showeth that * your petitioner is an infant under 
 
 the age of twenty-one years, to wit, of the age of j'ears. 
 
 That the bill of complaint in said cause was filed against 
 your petitioner {and others), for (Here state the purpose for 
 which the hill is filed and the substance of ths prayer.) And 
 your petitioner shows {Here state how the rights of the infant 
 a/re affected iy the suit); and that your petitioner has been 
 served with a subpoena in said cause, requiring liim to appear 
 
 and answer the said bill, returnable on the day of 
 
 instant. 
 
 Your petitioner therefore praj's that T F G the register of 
 
 this court, residing in the city of , in said State, may be 
 
 appointed the guardian ad litem of your petitioner, to appear 
 and defend this suit on her behalf. And your petitioner will 
 ever pray, etc. C D. 
 
 OTT, 
 
 Solicitor for petitioner. 
 
 Consent of guardian. 
 
 I hereby consent to become guardian ad litem, of the above 
 petitioner in the above entitled cause. 
 Dated, etc. T F G. 
 
 No. 253. Affidavit of infanfs signatitre. 
 
 {Title of court and cause.) 
 
 County, ss. 
 
 W M, of said county being duly sworn, deposes and says, 
 
 (a) Sheahan v. Wayne Cireuit Judge, 42 Mich. 69. 
 (6) Wood V. Truax, 39 Mich. 628. 
 
670 INFANTS, 
 
 Suits Against — Order Appointing Guar'n ad litem, on Peti'n of Infant, etc 
 
 that on the day of , A D. 18 — , he saw the above 
 
 named C D, to him personally known, sign the petition here- 
 to annexed; and that on the day of , he also saw 
 
 T F G, to him personally known, sign the consent to act as 
 guardian ad litem thereunder written. 
 
 WM. 
 Subscribed, etc. 
 
 No. 254. Order appointmg gua/rdian ad litem, on petition 
 
 of inftmt. 
 
 (Title of court and caption as in 105.) 
 
 On reading and filing the petition of D, the defendant in 
 this suit, praying for the appointment of T F G, the register 
 of this court, as guardian ad litem, for the said C D, who is 
 
 an infant of the age of years, together with the consent 
 
 of T F G, to act as such guardian" ad litem. On motion of 
 T T, Esq., solicitor and of counsel for the defendant, it is 
 ordered that the said T F G be and he is hereby appointed 
 guardian ad Utem of the said D, to appear and defend this 
 suit in his behalf. 
 
 A JM, 
 Circuit Judge. 
 
 N^o. 255. Petition of complainant for the appointmemt of 
 a guardian ad litem, 
 
 {Title of court and cause.) 
 
 To the Circuit Court for the County of , In Chancery. 
 
 The petition of A B, the complainant in this suit, showeth 
 unto the court, that the bill in this suit was filed against the 
 defendant for the purpose {here state the pv/rpose of the bill 
 and the manner in which the rights of the infant are affected 
 thereby). And your petitioner further shows that the said 
 
 D resides in the city of in said State, and is, as your 
 
 petitioner is informed and believes, an infant under the age 
 
 of twenty-one years, to wit, of the age of -; years. That 
 
 npon the day of a subpoena in this cause was duly 
 
 served on the said C D, requiring him to appear and answer 
 
 said bill, returnable on the day of last.(*) And 
 
 your petitioner further shows that although more than twenty 
 days have elapsed since the return day mentioned in said 
 subpcena, no guardian ad litem hath as yet ^ been appointed 
 for such infant, or applied for by him, or by any person on 
 his behalfj to the knowledge or belief of your petitioner. 
 
INFANTS. 671 
 
 Suits Against — Petition for Appointmeiit of Gnardian on Peti'n of Comp't. 
 
 Your petitioner therefore prays that T F G, the register of 
 this court, may be appointed guardian ad litem, of such in- 
 fant defendant, to appear and defend this suit in his behal£ 
 And your petitioner will ever pray, etc. 
 
 AB. 
 FK, 
 Solicitor for petitioner. 
 
 State of Michigan, ) 
 
 County of j 
 
 On this day of , A. D. 18 — , personally ap- 
 peared before me, a notary public in and for said county, the 
 above named petitioner, who made oath that he has heard 
 read {or rea<P, the foregoing petition, by him subscribed, ar\d 
 knows the contents thereof, and that the same is true of his 
 own knowledge, except as to the matters therein stated on in- 
 formation and belief, and as to those matters he believes it to 
 be true. 
 
 II B, 
 Notary Public, County, Mich. 
 
 Wo. 256. 07'der for appointment of guardian ad litem, on 
 petition of complainant. 
 
 {Oaption, etc., as in 105.) 
 
 On reading and filing the petition of the complainant in 
 the above cause, showing that the defendant C D is an infant, 
 
 of the age of years, and that a subpoena to appear and 
 
 answer in this cause, returnable on the day of , A. D. 
 
 18 — , has been duly served on the said C D, and that although 
 more than twenty days have elapsed since the return day of 
 said subpoena, yet no guardian ad litem hath been appointed 
 for such infant, or applied for by him or by any person 
 on his behalf; and praying for the appointment of T F G, the 
 register of this court, as such guardian ad litem, to appear 
 and defend this suit in his behalf, on motion of F K, Esq., 
 solicitor and of counsel for the complainant, it is ordered that 
 the said T F G be appointed such guardian ad litem, unless 
 the said C D shall, within ten days after service of a certified 
 copy of this order, himself procure a guardian ad litem to be 
 appointed. 
 
672 INFANTS. 
 
 Suits Against— Order making the last Order Absolute. 
 
 N'o. 257. Order making the last order absolute. 
 
 {Uaption, etc., as in 105.) 
 
 An order having been made, in this cause on the day 
 
 of , appointing TF Gr, the register of this court, guardian 
 
 ad litem of the defendant D, unless the said C t) should, 
 within ten days after the service of a certified copy of said 
 order, himself, procure a guardian ad litem to be appointed; 
 on reading and filing an affidavit of W A L, proving the ser- 
 vice of a certified copy of such order on the said C J) person- 
 ally, on the day of , A. D. 18 — ,■ and on reading and 
 
 filing the affidavit of F K, complainant's solicitor, showing 
 that more than ten days have elapsed since the service of tlie 
 certified copy of said order on said D, yet he has received 
 no notice of the appointment of a guardian ad litem for such 
 infant defendant, on motion of F K, E^q., solicitor and of coun- 
 sel tor complainant, ordered that the said order be and the 
 same is hereby made absolvite. 
 
 Wo. 258. Petition hy a relative of an infant for a/ppoint- 
 ment of guardian ad litem. 
 
 {Title of court and cause, and then proceed as in No. 255, 
 merely changing the name of the petitioner, and stating 
 his relationship to the infant down to the asterisk, (*) then 
 conclude.) 
 
 Your petitioner, therefore, prays that he may be appointed 
 guardian ad litem of such infant defendant, to appear and 
 defend this suit in his behalf. Your petitioner further shows 
 that he has no interest in this suit adverse to that of the in- 
 fant, and is not connected in business with the solicitor or 
 counsel of the complainant. 
 
 {Signature.) 
 
 {Jurat as in Wo. 255.) 
 
 The foregoing is the proper form of petition when the per- 
 son applying to be appointed is the general guardian of the 
 infant. If the petition by a relative of the infant prays for 
 the appointment of a solicitor or master, etc., as guardian ad 
 litem, the person proposed should make an affidavit, to be 
 annexed to the petition, that he has no interest adverse to 
 that of the infant, and that he is not connected in business 
 with the complainant's solicitor or counsel. 
 
INFANTS. 673 
 
 Sale of Estate of Infants and Incompetent Persons. 
 
 SECTION III. 
 
 SALE OF ESTATE OP INFANTS AND INCOMPETENT PERSONS. 
 
 Whenever any infant, idiot, lunatic, or other incompetent 
 person shall be seized or possessed of any lands, tenements, or 
 hereditaments, by way of mortgage, or in trust only for 
 others, the court of chancery for the county where such prop- 
 erty is situated, or in which such infant, idiot, Uiilatic, or 
 other incompetent person may be on the petition of the guard- 
 ian of such infant, idiot, lunatic, or other incompetent per- 
 son, or on the application by bill or petition of any person in 
 any way interested, may order and compel such infant, idiot, 
 lunatic, or other incompetent person to convey and assure 
 such lands, tenements, and hereditaments to any other person, 
 in such manner as the said court shall direct. Every con- 
 veyance or assurance, made pursuant to such order, shall be 
 as good and effectual in law as if the same were made by such 
 infant, idiot, lunatic, or other incompetent person when of 
 lawful age and of sound mind, (a) 
 
 Any infant, idiot, lunatic, or other incompetent person 
 seized of any real estate, or entitled to any term for years in 
 any lands may, by his next friend or by his guardian, apply 
 to the court of chancery for the county wliere the property is 
 situated, or where such infant, idiot, lunatic, or other incom- 
 petent person may be, for the sale or disposition of such 
 property. On such application, the court may, if necessary, 
 appoint one or more suitable persons as guardians ad 
 Utem. {b) 
 
 The guardian must give a bond to such infant, or in- 
 competent person in sich penalty, with such sureties and 
 in such form as the court shall direct, conditioned for the 
 faithful performance of the trust reposed, for the paying 
 over, investing and accounting for all moneys that shall 
 be received by such guardian according to the order of any 
 
 (o) Laws 1881, p. 384. 
 (6) Laws 1881, p. 385. 
 43 
 
674 IJSTFANTS. 
 
 Sale of Estate of Infanta and Incompatent Persons— Proceedings. 
 
 conrt having authority to give directions in the premises, 
 and for the observance of the orders of the court in relation 
 to the said trust, (a) 
 
 Whenever it shall appear satisfactorily that a disposition 
 of any part of the real estate of such infant, idiot^ lunatic, 
 or other incompetent pereon, or of his interest in any term 
 of yea*6, is necessary and "proper, either fot the support and 
 maintenance of such infant, idiot, lunatic, or other incompe- 
 tent person, or for his 'edu'cation; or that the interest of such 
 infant, idiot, lunatic, or other incompetent jJerson Requires, or 
 will be substantially promoted hy such disposition, oh account 
 of any part of his said property being exposed to waste or 
 dilapidation, or on account of its being wholly unproductive, 
 or for any otlier peculiar reasons or circumstances, the court 
 may order th<e letting for a term of jeict^, the sale, or other 
 disposition of such real estate or intel-est, to be ma;de by the 
 guardian* of such itifafits, idiots, Itinatics, or other incompe- 
 tent persons, in gnch manner and with such restrictions as 
 shall be deemed expedient, (b) 
 
 But no real estate or term for years shall be sold, leased, 
 or disposed of in any manner against the provisions of any 
 last will, or of any conveyance^ by which such estate or term 
 was devised or granted to such infant, idiot, lunatic, or other 
 incompetent person, (c) 
 
 Proceedings.- -The application under the statute, should be 
 by sworn petition, addressed to the court, and setting forth 
 the name and age of the infant and his residence, the name 
 and residence of the proposed guardian, and his relationship 
 to the infant, tiie description, situation, value and income of 
 tlie real estate, and the facts and circumstances which render 
 tlie sale proper. The court may .refer the application to a 
 commissioner to ascertain the trutli of the facts stated m the 
 petition, whether a sale would be beneficial to the infant, the 
 
 (o) Laws 1881, p. 385. 
 (6) Laws 1881. p. 385. 
 (c) Laws 1881 p. 385. 
 
INFANTS. 675 
 
 Sale of Estate of Infants and Incompeteilt Persons — How Applied. 
 
 value of tire property, fey lot and parcel, tlie terms and condi- 
 tions of the sale, and whether the infant needs the proceeds 
 for his support. Witnesses must be examined to sustain the 
 petition. If any person entitled to dower in the premises, is 
 willing to join in the sale, the value of the dower should be 
 ascertained, (a) 
 
 If no reference is raad^, the court inn«t mahe the same in- 
 quiries. 
 
 Upon the coming in of the commissioner's report, if he re- 
 ports in favor of a sale, the court, if there is no valid objection, 
 will make an order authorizing the guardian to contract for a 
 sale of the premises. 
 
 Upon an agreement for a sale, kasing or other disposition 
 of such property being made in pursuance of the order of 
 the court, the same shall be reported to the court upon the 
 oath of tlie guardian making the same; and if it be confirmed, 
 a lease or conveyance shall be executed under the direction of 
 the court, (b) 
 
 All sales, teases, dispositions and conveyances made in good 
 faith by the guardian in pursuance of such order, when so 
 confirmed, «hall be valid and effectual as if made by such in- 
 fant, idiot, lunatic, or other incompetent person when of law- 
 ful age and of sound mind. {c\ 
 
 Proceeds of sale, how applied. — From the time of such ap- 
 plication to the court, the infant, idiot, lunatic, or other in- 
 competent person ehall be considered as a ward of the court, 
 30 far as relates to such property, its proceeds and income; 
 and the court shall make orders for the application and dis- 
 position of the proceeds of such property and for the invest- 
 ment of the surplus belonging to such infant, idiot, lunatic, 
 or other incompetent person, so as to secure the same for his 
 benefit, and shall directs return of such investment and dis- 
 position to be made on oath, as soon as may be, and shall re- 
 quire accounts to be rendered periodically, by any guardian 
 
 (a) Matter of Lansing, 3 Paige, 265. Gomp. L. 1871, § &169. 
 
 (b) Comp. L. 1871, § 5172. 
 («) Laws 1881, p. 385. 
 
676 INFANTS. 
 
 Sale of Estate of Infants and Incompetent Persons — Dower, how Satisfied. 
 
 or other person who may be entrusted with the disposition of 
 the income of such proceeds, (a) 
 
 N"o sale made as aforesaid of the real estate of any infant, 
 idiot, lunatic, or other incompetent person, shall give to such 
 infant, idiot, lunatic, or other incompetent person, any o^ier 
 or greater interest or estate in the proceeds of such sale than 
 he had in the estate so sold; but the said proceeds shall be 
 deemed real estate of the same nature as the property sold, (a) 
 
 . Dower, how satisfied. — If the real estate of any infant, idiot, 
 lunatic, or other incompetent person, or any part of it, shall 
 be subject to dower, and the person entitled to such dower 
 shall consent in writing to accept a gross sum in lieu thereof, 
 or the permanent investment of a reasonable sum, in such 
 manner as that the interest thereof be made payable to tlie 
 person entitled to such dower, during life, the court may di- 
 rect the payment of such sum in gross, or the investment of 
 such sum as shall be deemc 1 reasonable and shall be accept- 
 able to the person entitled lo such dower, in manner afore- 
 said; which sum so paid or invested shall be taken out of the 
 proceeds of the sale of the real, estate of such infant, idiot, 
 lunatic, or other incompetent person, (a) 
 
 But before any such sum shall be paid, or such investment 
 madei the court must be satisfied that an efiBCtual release of 
 such right of dower has been executed. (5) 
 
 It is also provided by statute that whenever it shall be made 
 to appear to the court, that it will be manifestly for the inter- 
 est or advantage of any infant or infants, that any incum- 
 brance upon the real estate of such infants should be pur- 
 chased and discharged, in whole or in part, the court may 
 authorize the guardian of such infants to purchase and dis- 
 charge the same, and, if necessary, to sell and dispose of such 
 part of the real estate of such infants as may be necessary for 
 that purpose. Provided, such purcliase and discharge shall 
 in no way be construed as vesting in said guardian any right, 
 
 (a)" Laws 1881, pp. 385, 386. See Foiman v. Marsh, 11 N. Y. 544. 
 (6) Comp. L. 1871, § 5177. 
 
INFANTS. 677 
 
 Sale of Estate of Infants and Incompetent Persons — Guardian's Report, etc. 
 
 title or interest in such premises, to the prejudice of such in- 
 fants, (a) 
 
 Ouardian^s final report. — After the completion of the sale, 
 the payment of the purchase money and the delivery of the 
 deed to the purchasers, the guardian makes a final and full 
 report to the court of his actings and doings, his receipts and 
 expenditures, and the disposition of the balance of the money. 
 
 General guardians, how appointed. — Except where a par- 
 ent appoints a testamentary guardian, general guardians are 
 appointed by the probate court, (b) General guardians rep- 
 resent their wards in partition cases; (<?) 
 
 («) Comp. L. 1871, § 5185. 
 
 (6) Comp. L. 1871, § 4819, amended 1871, p. 3, Chap. 172, Comp. L. 
 1871. 
 (c)Seo Comp. L. 1871, §§ 6278, 6279, 6337, 6341. 
 
678 PROCEEDINGS AGAINST CORPORATIONS. 
 
 Proceedings by a Single Shareholder. 
 
 CHAPTER XLI. 
 
 PEOCEEDINGS AGAINST COEPOEATIONS. 
 
 Section 1. By Stockholders. 
 
 2. Jurisdiction over Ofpicjers. 
 
 3. Proceedings against Insolvent Corporations. 
 
 4. Voluntary Dissolution of Corporations. 
 
 SECTION I. 
 
 PEOOEEDINGS BY A SINGLE SHAKEHOLDEE. 
 
 The aid of the court of chaneerj is frequently invoked, in 
 matters relative to and concerning corporations. In addition 
 to a few general suggestions, we can do no more at the present 
 time, with the limited space at our command, than to call at- 
 tention to the provisions of our statutes. 
 
 Under certain circumstances, equity will relieve a single 
 shareholder in a corporation. If the directors of a corpora- 
 tion are guilty of a breach of trust, injurious to the corporate 
 property, or to the rights of the shareholders, or a portion of 
 them, and if the corporation refuses to institute the proper 
 proceedings to restrain or redress such injury, one or more of 
 the shareholders may institute a suit in their individual 
 names, (a) The failure or refusal of the corporation itself to 
 demand redress, is a condition precedent to the right of a share- 
 
 (a) Thompson on Liability of Officers of Corporations, 385; Hodges v. New 
 England Screw Co., 1 R. I. 312, and 3 R. I. 9; Dodge v. Woolsey, 18 How. 
 331; Robinsons. Smith, 3 Paige, 222: Peahodi/y. Flint, 6 Allen, 52; Brown 
 V. Van Dyke, 8 N. J. Eq. 795: Kennebec B. Co. v. Portland R. Co. 54 Me. 
 173, 181; Colquitt v. Howard, 11 Ga. 556; Forbes v. Whitlock. 3 Edw. Ch. 
 446; Greaves V. Gouge, 69 N. Y. 154; Butts r. Wood, 37 N. Y. 317; Hazard 
 V. Durant. 11 R. I. 195; Salomons v. Laing, 12 Beav. 339; Gregory v. 
 Pachett, 33 Beav. 595; Ryan v. Leavenworth R. Co., 51 Kan. 365. 
 
PROCEEWNQS AGAINST CORPORATIONS. 679! 
 
 JnfiBiqliQtijpfl over Officers of Corporations. 
 
 holder to sue or appear as plaintiff, {a) The complain.t should 
 aver that the corporation, on request, has refused to brmg the 
 proper action, otherwise it is demurrable. But this rule does 
 not obtain where the other allegations of the bill show that 
 such a request would have been useless. The corporation 
 itself must be made a party to the proceeding, either as com- 
 plainant or defendant, [h) 
 
 Before the jurisdiction of the court of equity can be invoked 
 by a shareholder, in cases not governed by statute, three 
 things must concur ; 1. The matter complained of must be a 
 breach of duty on the part of the directors, (c) 3. The corpo- 
 ration must fail or refuse to demand redress. 3. Tiiei-e must 
 ])e an injury to the atockholder. 
 
 Unless thereto empowered bj"^ statute, a court of equity lias 
 no jurisdiction either to remove the officers of a corpora- 
 tion, (aJ) or to put an end to the corporation itself, (e) or wind 
 up its affairs, (/) though it may, in the event of its insolvency 
 take possession of its assets, and distribute them among its 
 creditors. 
 
 SECTION II. 
 
 JUKISDICTIOlSr OTEK OFFICERS OF COEPOKATIONS. 
 
 The circuit court in cha,ncery within the proper county has 
 jui'isdiction over directors, managers, trustees, or other officers 
 of corporations, proyided that proceedings are commenced 
 within one year after they have ceased to be such directors, 
 managers, trustees and othef officers, {g) 
 
 (a) Kennebec, etc., R. Co. v. Pwtland, etc., E. Co., 54 Me. 173; see 
 Thompson on Liability of Officers of Corporations, 385. 
 
 (6) See Thonipsoi} on Liability of Officers of Corporations, 385, 393, for a 
 full discussion of this subject. 
 
 (c) Dodffe V. Waolsey, 18 How. 369. 
 
 {d) Atty.-gen'l Y. Earl of Clarendon, 17 Yes. 491; Baylens v. Orne, 1 
 Freem. Ch. 171; Neall y. Hill, 16 Ca). 145, 
 
 (e) Atty.-gen'l v. Utica Ins. Co., 2 Johns. Ch. .371; Atty.-gev'lv. Bank of 
 Niagara, 1 Hopk. Ch. 354; Slee v. Bloom, 5 Johns. Ch. 366. 
 
 (/) ]!feaU V. Hill, 16 Cal. 145; Verplanck v. Mercantile Ins. Co. 1 Edv. 
 Ch. 84. 
 
 (p') Laws 1879, p. 194. 
 
680 PROCEEDINGS AGAINST COEPOEATIONS. 
 
 Jurisdiction over Officers of Corporations. 
 
 1. To compel them to account for their official conduct in 
 the management and disposition of the funds and property 
 committed to their charge; 
 
 2. To decree and compel payment by them to the corpo- 
 ration whom they represent, and to its creditors, of all sums 
 of money, and of the value of all property which they may 
 have acquired to themselves, or transferred to others, or may 
 have lost or wasted, by any violation of their duties as such 
 directors, managers, trustees or other officers; 
 
 3. To suspend any such trustee or officer from exercising 
 bis office, whenever it shall appear that he has abused his 
 trust; 
 
 4. To remove any such trustee or officer from his office, 
 upon proof or conviction of gross misconduct; 
 
 5. To direct now elections to be held by the body or board 
 duly authorized for that purpose, and to supply any vacancy 
 created by such removal; 
 
 6. In case there be no such body or board, or all the mem- 
 bers of such board be removed, then to report the same to the 
 governor, wlio shall be aiithorized, with the consent of the 
 senate, to fill such vacancies; 
 
 7. To set aside all alienations of property made by the 
 trustees or other officers of any corporation, contrary to the 
 provisions of law, or for purposes foreign to the lawful busi- 
 ness and objects of such corporation, in cases where the per- 
 son receiving such alienation knew the purpose for which the 
 same was made; and 
 
 8. To restrain and prevent any such alienation in cases 
 vi^here it may be threatened, or there may be good reason to 
 apprehend that it is intended to be made, {a) 
 
 The jurisdiction conferred in the third paragraph, is to be 
 exercised as in ordinary oases, on bill or petition, as the case 
 may require, or as the court may direct, at the instance of the 
 attorney-general, prosecuting in behalf of the people of this 
 State, or at the instance of any creditor of such corporation 
 or at the instance of any director, trustee or other officer of 
 
 (a) Laws 1879, pp. 194, 195. 
 
PROCEEDINGS AGAINST CORPORATIONS. 681 
 
 Jurisdiction over Officers of Corporations — Injunction, when Allowed, etc. 
 
 sncli corporation having a general superintendence of its con- 
 cerns, or by any stockholder of such corporation, [a) 
 
 "Wlien any of the visitatorial powers enumerated, over any 
 corporation, are or shall be vested by statute, in any corporate 
 body or public officer, the provisions of tliat section shall not 
 be construed to divest or impair the powers so vested. (6) 
 
 ' Injunciions, when allowed. — Upon a bill being filed under 
 the direction of the attorney-general, in any court having 
 equity jurisdiction, the court sliall have power to restrain by 
 injunction, any corporation from assuming or exercising any 
 franchise, liberty or privilege, or transacting any business not 
 authorized by the charter of such corporation; and in the 
 same manner to restrain any individuals from exercising any 
 corporate rights, privileges, or franchises, not granted to them 
 by any law of this State, (g) 
 
 Such injunction may be issued before the coming in of the 
 answer, upon satisfactory proof that tlie defendants complained 
 of, have usurped, exercised or claimed, any franchise, privi- 
 lege, liberty or corporate right not granted to them, and after 
 the coming in of the answer, such injunction may be contin- 
 ued until judgment at law shall have been had. {d) 
 
 Sequestration of property. — "Whenever a judgment at law, 
 or a decree in chancery, shall be obtained against any corpo- 
 ration, incorporated under the laws of this State, and an exe- 
 cution issued thereon shall have been returned unsatisfied in 
 part or in whole, upon the petition of the person obtainino- 
 such judgment or decree, or his representatives, the circuit 
 court within the proper county may sequestrate the stock, 
 property, things in action and effects of such corporation, and 
 may appoint a receiver of the same, {e) 
 
 Upon a final decree on any such petition, the court shall 
 cause a just and fair distribution of the property of such cor- 
 
 (a) Comp. L. 1871. § 6564. 
 (i) Comp. L. 1871, § 6563. 
 (o)Comp. L. 1871, §6560. 
 {d) Comp. L. 1871, § 6561. 
 (e) Comp. L. 1871, § 6565. 
 
fi82 PROCEEDINGS AGAINST CORPORATIONS. 
 
 Praeeedings againsfc Insolv^fc Corppjcations-^Surrender of Corporate Rights. 
 
 poration, aud of tte procjeeds. thereof, to be made among the. 
 fair and honest creditors of such corpo^ration, ip proportion to 
 their debts respectively, who shaJl be paid in tlie same order 
 as provided in the case of a voluntary dissolution of a corpo- 
 ration, {a) 
 
 Swrrender of corporate rights. — Whenever any incorpo- 
 rated company shall have remained insolvent for one whole 
 year, or for one year shall have neglected or refused to pay 
 and discharge its notes or otlier evidences of debt, it shall 
 be deemed to have surrendered the rights, privileges and 
 franchises granted by any act of incorporation, or acquired 
 under the laws of this State, and it shall be adjudged to be 
 dissolved. (J) 
 
 SECTION in. 
 
 PEOCEEDINGS AGAINST INSOLVENT COEPOEATIONS. 
 
 "Whenever any corporation having banking powers, or 
 having the power \o make loans on pledges or deposits, or 
 authorized by law to make insurances, shall become insolvent 
 or unable to pay its debts, or shall neglect or refuse to pay 
 its notes or evidences of debt on demand, or shall have vio- 
 lated any of the provisions of its act or acts of incorporation, 
 or of any other act binding on such corporation, any court 
 having equity jurisdiction, may, by injunction, restrain such 
 corporation and its officers from exercising any of its corpo- 
 rate rights, privileges or franchises, and from, collecting or 
 receiving any debts or demands, and from paying out, or in 
 any way transferring or delivering to any person, any of the 
 moneys, property or effects of such corporation, until such 
 court shall otherwise order, (c) 
 
 Who may apply for injunction.— ^uf^ injunction may be 
 
 (a)Comp. L. 1871, §6566. 
 
 (6) Laws, 1877, p. -lO. 
 
 (c) Comp. L. 1871, § 6568. 
 
PROCEEDINGS AGAINST CORPORATIONS. 633 
 
 Proeeedings against InsQlyent Corporations^^Appointment of Receiver, etc. 
 
 issued on the application of the attorney-general in behalf of 
 the people of this State, or on the application of any creditor or 
 stockholder of such corporation, upon bill or petition, filed for 
 that purpose and upon due proof of any of the facts in the last 
 section, required to authorize the same. Whenever such in- 
 junction shall issue against any bank for any violation of its 
 charter, on the application of any creditor, the court shall pro- 
 ceed to final decree in such case, and adjudge a forfeiture if 
 the proof is sufficient, notwithstanding such creditor may set- 
 tle with such corporation, and relinquish his claim against said 
 corporation; and in all such cases the attorney-general, under 
 the direction the of governor, or any creditor, shall have the 
 right to appear and prosecute such suit; and such suit shall 
 not be discontinued if either of them so appear and prose- 
 cute such suit to final judgment, {a) 
 
 AppovntTThent of receiver. — Upon such application being 
 made, and in any stage of the proceedings thereupon, the court 
 may appoint one or more receivers, to take charge of the prop- 
 erty and effects of such corporation, and to collect, sue for, 
 and recover the debts and demands that may be due, and tiie 
 property that may belong to such corporation, who shall, in all 
 respects, be subject to thtJ control of the court. (5) Such re- 
 ceivers shall possess all the powers and authority conferred, 
 and be subject to all the obligations and duties imposed upon 
 receivers appointed in case of the voluntary dissolution of a 
 corporation, (c) 
 
 Making stockholders parties. — -Ifsucli application be made 
 by a creditor of any corporation, whose directors or stock- 
 holders are thade liable by law for the payment of such debt 
 in any event or contingency, such directors or stockholders 
 may be made parties to the bill or petition, either on the fil- 
 ing thereof, or in any subsequent stage of the proceedings, 
 whenever it shall become necessary to enforce such liability, {d) 
 
 [a) Comp. L. 1871, § 6569. 
 
 (6) Comp. L. 1871, § 6570. 
 
 (c) Comp. L. 1871, § 6571; 4 Paige, 224; .S Gomstook, 416. 
 
 ((i)Comp. L. 1871, §6572. 
 
684 PROCEEDINGS AGAINST CORPORATIONS. 
 
 Proceedings against Insolvent Corporations — Making Directors Parties, etc. 
 
 Making directors parties. — If any creditor of a corpora- 
 tion desire to make such directors or stockholders parties to 
 the snit, after a decree therein against the corporation, he 
 may do so, on filing a supplemental bill against them, founded 
 upon such decree, and if such decree was rendered in a pro- 
 ceeding instituted by the attorney-general, such creditor 
 may, on his application, be made complainant therein, with 
 or instead of the, attorney-general, and may, in like manner, 
 make the directors and stockholders sought to be charged, de- 
 fendants in such suit, (a) 
 
 Bill against stockholders.— Whenever any creditor of a cor- 
 poration shall seek to charge the directors, trustees or other 
 superintending officers of such corporation, or the stockhold- 
 ers thereof, on account of any liability created by law, he may 
 file his bill for that purpose in any court having chancery 
 jurisdiction, which shall possess jurisdiction to enforce such 
 liability. (S) 
 
 The court shall proceed thereon as in other cases, and when 
 necessary, shall cause an account to be taken of the property 
 and debts due to and from such corporation, and shall appoint 
 one or more receivers, who shall possess all the powers con- 
 ferred, and be subject to all the obligations imposed on receiv- 
 ers, by the next succeeding chapter, in case of the voluntary 
 dissolution of a corporation, (c) 
 
 But if, on the coming in of the answer, or upon the takiilg 
 of any such account, it shall appear that such corporation is 
 insolvent, and that it has no property or eflfects to satisfy such 
 creditor, the court may proceed, without appoiniing any re- 
 ceiver, to ascertain the respective liabilities of such directors 
 and stockholders, and enforce the same by its decree, as in 
 other cases, (d) 
 
 Upon a final decree being made upon any such application 
 to restrain a corporation, or upon any such bill filed against 
 
 (a) Comp. L. 1871 § 6-573. 
 (6) Comp. L. 1871, § 6574. 
 (c) Comp. L. 1871 § 6575. 
 id) Comp. L. 1871, § 6576. 
 
PROCEEDINGS AGAINST CORPORATIONS. 635 
 
 Proceedings against Insolvent Corporations^Discovery by Corporation, etc. 
 
 the directors or stockholders, the court shall cause a fair and 
 just distribution of the property of such corporation, and of' 
 the proceeds thereof, to be made among its fair and honest 
 creditors, in the order and in the proportions prescribed in 
 the case of voluntary dissolution of a corporation, (a) 
 
 In all cases in which the directors or other officers of a cor- 
 poration, or the stockholders thereof, shall have been made 
 parties to a suit in which a decree shall be rendered, if the 
 I property of such corporation shall be insufficient to discharge 
 its debts, the court shall proceed to compel each stockholder 
 to pay in the amount due and remaining unpaid on the shares 
 of stock held by him, or so ranch thereof as shall be necessary 
 to satisfy the debts of the company. (J) If the debts of the 
 [company shall remain unsatisfied, the court shall proceed to 
 ascertain the respective liabilities of the directors or other of- 
 ficers, and -of the stockholders, and to decree the amount pay- 
 able by each, and to enforce such decree as in other cases, (o) 
 
 Discovery iy corporation. — Upon any application to the 
 court having jurisdiction, in any of the cases provided in this 
 chapter, such court may compel such corporation to discover 
 any stock, property, things in action or effects alleged to be- 
 long, or to have belonged to it, the transfer and disposition 
 thereof, and the consideration, and all the circumstances of 
 snch disposition, [d) 
 
 Discovery iy officers. — Every officer, agent or stockholder 
 of any corporation, against which proceedings shall be institu- 
 ted, according to the provisions of this chapter, and every per- 
 son to whom it shall be alleged that any transfer of any jirop- 
 erty or effects of such corporation has been made, or in whose 
 possession or control anj' such property or effects shall be al- 
 leged to be, may be compelled, in the discretion of the court, 
 to answer a bill filed to obtain any discovery in the preceding 
 
 (a) Comp. L. 1871, § 6-577. 
 (6)Comp. L.1871, §6578. 
 (c) Comp. L. 1871, § 6-579. 
 {d) Comp. L. 1871, § 6530; 3 Paige, 2-31. 
 
686 PROCEEDINGS AGAINST COEPORATIONS. 
 
 Proeeedings agaiBsfc Insolvetit Corporations-^Staying Proceedings, etc. 
 
 section specified, notwithstanding sucli answer may expose the 
 corporation of which he is a member, to a forfeiture of its cor- 
 porate rights, or any of them, {a) 
 
 The answers of the oflSoers and agents of any GofpGratioii, 
 shall be evidence against the corporation, in the same manner, 
 and to the same extent as if such answers had been given upon 
 an examination of snch officers or agents, as witnesses in the 
 cause; and snch officers or agents may subsequently be exam- 
 ined as witnesses by either party, tmder the order of the court, 
 but no such answer shall be compelled, unless by special or- 
 der of the court, {b) 
 
 Neither the answer of any such officer or agent nor his tes- 
 timony upon any such subsequent examination, shall be used 
 as evidence upon any indictment, or other criminal prosecu- 
 tion or proceeding against him. (o) 
 
 Staying proceedings at law. — "Whenever any bill shall be 
 filed, or any application made against any corporation, its di- 
 rectors or other superintending officers, or its stoolcliolders, ac- 
 cording to the provisions of this chapter, the court may, by 
 injunction, on the application of either party, and at any stage 
 of the proceedings, restrain all proceedings at law, by any 
 creditor against the defendants in snch snit; and whenever it 
 shall appear necessary or proper, may order notice to be pub" 
 lished in such manner as the court shall direct, requiring all 
 the creditors of snch corporation to exhibit their claims and 
 become parties to the suit, within a reasonable time, not less 
 than six months from the first publication of such order, and 
 in default thereof, to be precluded from all benefit of the de- 
 cree, which shall be made in such suit, and from any distribu- 
 tion which shall be made under such decree, {d) 
 
 Certain corporations excepted. — The provisions of this chap- 
 ter shall not extend to any incorporated library or lyceum 
 
 (a)Comp. L. 1871, §6581. 
 (h) Comp. L. 1871, § 6582. 
 (c) Comp. L. 1871, § 6583. 
 (S) Comp. L. 1871, § 6584. 
 
PROCEEDINGS AGAINST CORPORATIONS. 687 
 
 Voluntaiy Dissolution of Corporations — Wko may Apply for, etc. 
 
 society; to any religious corporation, or any incorporated 
 academy or select school ; nor to the proprietors of any bury- 
 ing ground incorporated under the laws of this State, {a) 
 
 SECTION IV. 
 
 VOLUNTAEY DISSOLITTION OF COEPOEATIONS. 
 
 Who may apply for. — Whenever the directors, trustees, or 
 other officers having tlie management of the concerns of any 
 corporation, or the ranjority of them, shall discover that the 
 stock, property and elFects of such corporation have been so 
 far reduced by losses or otherwise, that it will not be able to 
 pay all just demands to which it may be liable, or to afford a 
 reasonable security to those who may deal with such corpo- 
 ration, or whenever such directors, ti-ustees or officers, or a 
 majority of them, shall, for any reason, deem it benelicial to 
 the stockholders tliat such corpora.tion should be dissolved, 
 they may apply to any coUrt having equity jurisdiction, by 
 petition, for a decree dissolving such corporation. (5) 
 
 Contents of appUGaiion.-^'Evevy st\ch. application shall con- 
 tain a statement of the reasons which induce the applicants 
 to desire a dissolution of the corporation; and there shall be 
 annexed thereto 
 
 1. A full, just and true inventory of all the estate, both 
 real and personal, in law and equity, of such corporation, and 
 of all the books, vouchers and securities relating thereto; 
 
 2. A full, juSt and true account of the capital stock of such 
 corporation, specifying the names of the stockholders, their 
 residence when known, the number of shares belonging to 
 each, the amount paid in -upon such shares respectively, and 
 the amount still due thereon. 
 
 3. A statement of all incumbrances on the property of such 
 corporation ; 
 
 («) Comp. L. 1871, § 6585. 
 (6) Comp. L. 1871, § 6586. 
 
688 PROCEEDINGS AGAINST CORPORATIONS, 
 
 Voluntary Dissolution of Corporations — Affidavit — Order to Show Cause, etc. 
 
 4. A full and true account of all the creditors of sucli cor- 
 poration, and of all engagements entered into by such incor- 
 poration, which may not have been fully satisfied and can- 
 celed, specifying the place of residence of each creditor, and 
 of every person to whom such engagements were made, if 
 known, and if not known, the fact to be so stated; the sum 
 owing to each creditor; the nature of each debt or demand; 
 and the true cause and consideration of such indebtedness in 
 each case, (a) 
 
 Affidavit. — To every such petition shall also be annexed an 
 affidavit of the applicants, that the facts stated in such appli- 
 cation, and the accounts, inventories and statements contained 
 tlierein or annexed thereto, are just and true, so far as the ap- 
 plicants respectively know, or have the means of knowing, (jb) 
 
 Order to show cause. — Upon such petition, accounts; inven- 
 tories and affidavits being filed, an order shall be entered re- 
 quiring all persons interested in such corporation, to sliovv 
 cause, if any they have, why such corporation should not be 
 dissolved before some circuit court commissioner, to be named 
 in such order, at some time and place to bo therein specified, 
 not less than three months from the date thereof, (c) 
 
 Publication of notice. — I^otice of the contents of such or- 
 der shall be published onco in each week for three weeks suc- 
 cessively, in such paper as the cmirt may direct, and in a 
 newspaper published in the county where the principal place 
 of conducting the business of such corporation shall be situ- 
 ated, if any newspaper be publislied in such county, (d) 
 
 Proceedings before co7nmiissioner.- — On the day appointed 
 in such order, such commissioner shall proceed to hear the 
 allegations and proofs of the parties, and shall take testimony 
 
 [n] Comp. L. 1871, § 6587. 
 (6) Comp. L. 1871, § 6583. 
 
 (c) Comp. L. 1871, § 6589. 
 
 (d) Comp. L. 1871, § < 
 
PROCEEDINGS AGAINST CORPORATIONS. 689 
 
 Voluntary Dissolution of Corporations — When Corpor'n to be Dissolved, etc. 
 
 in relation thereto, and shall, with all convenient speed, report 
 the same to the court, with a statement of the property, effects, 
 debts, credits and engagements of sncli corporation, and of 
 all other matters and things pertaining to such corporation, (a) 
 Such commissioner shall be entitled to the use of the original 
 petition and schedules annexed thereto, if he require the same 
 by an order on the register of the court, with whom tliey may 
 be deposited, and shall return the same with his report. 
 
 When corporation to ie dissolved. — Upon the coming in of 
 the report of the commissioner, if it shall appear to the court 
 that such corporation is insolvent, or that for any reason a 
 dissolution thereof will be benelicial to the stockholders, and 
 not injurious to the public interest, a decree shall be entered 
 • dissolving such .corporation, and appointing one or more re- 
 ceivers of its estate and effects; and such corporation shall 
 thereupon be dissolved and shall cease, (b) 
 
 Receivers. — Any of the directors, trustees or otiier officers 
 of such corporation, or any of its stockholders, may be ap- 
 pointed receivers, who, upon entering upon the duties of their 
 appointment, shall give such security to the people of this 
 State, and in such penalty as the court sliall direct, condi- 
 tioned for the faithful discliarge of the duties of their appoint- 
 ment, and for the due accounting for all moneys and effects 
 received by them as sncli receivers, (c) Such receivers shall 
 be vested with all the estate, real and personal, of such corpo- 
 ration, from the time of their having filed the security herein- 
 before required, and shall be trustees of such estate for the 
 benefit of the creditors of such corporation, and of its stock- 
 holders, (d) Such receivers shall have all the power and au- 
 thority conferred by law upon trustees to whom an assign- 
 ment of the estate of an insolvent debtor may be made, (e) 
 
 (a) Comp. L. 1871, § 6591. 
 
 (h) Comp. L. 1871, § 6593; 1 Paige, 258. 
 
 (c) Comp. L. 1871, § 6594. 
 
 {d)Comp.L. 1871, §6594. 
 
 (e)Comp. L 1871, §6596. 
 
 44: 
 
690 PROCEEDINGS AGAINST CORPORATIONSs 
 
 Voluntary Dissolution of Corporations — Notice of Appointment, etc. 
 
 Receivers to give notice of appointment. — The receivers, 
 immediately on tlieir appointment, shall gi.ve notice thereof 
 M'hicli shall contain the same matters required by law in no-, 
 tiees of trustees of insolvent debtors; and in addition thereto, 
 shall require all persons holding any open or subsisting con- 
 tract of such corporation, to present the same in writing, and 
 in detail, to such receivers, at the time and place in such no- 
 tice specified; which shall be published once in each week for 
 six successive weeks in such paper as the court may direct, 
 and in a newspaper printed in the county where the principal 
 .place of conducting the business of such corporation shall have 
 been situated, if such newspaper be there published. («) 
 
 If there shall be any sum remaining due upon any share 
 of stock subscribed in such corporation, the receiver shall im- 
 mediately proceed and recover the same, unless the person so' 
 indebted shall be wholly insolvent; and for that purpose may 
 file his bill in any court having equity jurisdiction, or may 
 commence and prosecute an action at law for the recovery of 
 such sum, without the consent of any creditors of such corpo- 
 ration, {b) 
 
 Certain sales void. — All sales, assignments, transfers, mort- 
 gages and conveyances of any part of the estate, real or per- 
 sonal, including things in action, of every such corporation, 
 made after the filing of the petition for a dissolution thereof, 
 in payment of, or as security for, any existing or prior debt, or 
 for any other consideration, and all judgments confessed by 
 such corporation after that time, shall be absolutely void as 
 against the receivers who may be appointed on such petition, 
 and as against the creditors of such corporation, (o) 
 
 Debtors to account to receiver. — After the first publication 
 of the notice of the appointment of receivers, every person 
 having possession of any property belonging to such corpora- 
 
 (a) Comp, L. 1871, § 6598. 
 (6) Comp. L. 1871, § 6597. 
 (f) Comp. L. 1871, § 6599, 
 
PROCEEDINGS AGAINST CORPORATIONS. 651 ^ 
 
 Voluntary Dissolution of Corporations — Referring Controversies, etc. 
 
 tion, and every person indebted to such corporation, shall 
 account and answer for the amount of such debt, and for the 
 value of such property, to the said receivers; and all the pro- 
 visions of law in respect to trustees of insolvent debtors, the 
 collection and preservation of the property of such debtors, 
 the concealment and discovery thereof, and the means of en- 
 forcing such discovery, shall be applicable to the receiver so 
 appointed, and to the property of sucli corporation, (a) 
 
 Referrmg controversies. — Siich receivers shall have the 
 same power to settle any controversy that shall arise between 
 them and any debtors or creditors of such corporation, by a 
 reference, as is given by law to trustees of insolvent debtors, 
 and the same proceedings shall be had for that purpose, and 
 with the like effect; and application may be made to any officer 
 authorized to appoint such referees on the application of the 
 trustees of insolvent debtors, who shall proceed therein in the 
 same manner; and the referees shall proceed in like manner 
 and file their report with the like effect in all respects. (5) 
 
 Calling meetings. — The receivers shall be subject to all the 
 duties and obligations imposed by law on trustees of insolvent 
 debtors, so far as they may be applicable, except where other 
 provisions are herein made, and they shall call a general meet- 
 ing of the creditors of such corporation within four months 
 from the time of their appointment, when all accounts and de- 
 mands in favor of and against such corporation, and all its 
 open and existing contracts shall be ascertained and adjusted, 
 as far as may be, and the amount of moneys in the hands of 
 the receivers declared, (c) 
 
 Subsisting contracts. — If there shall be any open and sub- 
 sisting engagements or contracts of such corporation, which 
 are in the nature of insurances or contingent engagements of 
 
 (fl) Comp. L. 1871, § 6600; 4 Paige, 425. 
 (V) Comp. L. 1871, § 6601. 
 (c) Comp. L. 1871, § 6602. 
 
632 PROCEEDINGS AGAINST COfiPOEATIONS. 
 
 Voluntary Dissolution of Corporations — Receiver's Commission, etc. 
 
 any kind, the receivers may, with the consent of the party 
 holding such engagement, cancel and discharge the same by 
 refunding to snch party the premium or consideration paid 
 thereon to such corporation, or so much thereof as shalj be 
 in the same proportion to the time which shall remain of any 
 risk assumed by such engagement, as the whole premium bore 
 to the whole term of such risk; and upon such amount being 
 paid by such receivers to the person holding or being the le^al 
 owner of such engagement, it shall be deemed canceled and 
 discharged as against such receivers, (a) 
 
 Receiver's commdssion. — Such receivers shall, in addition 
 to their actual disbursements, be entitled to such commissions 
 as the court shall allow, not exceeding the sum allowed by 
 law to executors and administrators. (J) 
 
 JSeceiver to retain, certain moneys.— The receivers shall re- 
 tain, out of the moneys in tlieir hands, a sufficient amount to 
 pay the sums which they aru hereinbefore authorized to pay 
 for the purpose of canceling and discharging any open or sub- 
 sisting engagements, (c) 
 
 If any suit be pending against the corporation, or 
 against the receivers, for any demand, the receivers may retain 
 the proportion wliich would belong to such demand, if estab- 
 lished, and the necessary costs in their hands, to be applied 
 according to the event of such suit, or to be distributed in a 
 second or other dividend, {d) 
 
 Order of payment of debts. — The receivers shall distribute 
 the residue of the moneys in their hands among all those who 
 have exhibited their claims as creditors, and whose debts have 
 been ascertained, as follows: 
 
 First. All debts entitled to a preference under the laws of 
 the United States; 
 
 («) Comp. L. 1871, § 6603. 
 (6) Comp. L. 1871, § 6604. 
 (c) Comp. L. 1871, § 6605. 
 ' {d) Comp. L. 1871, § 6606. 
 
PaOCEEDINGS AGAINST CORPORATIONS. . 693 
 
 Voluntary Dissolution of Corporations — Second Dividend, etc. 
 
 Second. Executions actually levied against such corporations, 
 to the extent of the property on which they shall respectively 
 be levied, and according to their legal priority; 
 
 Third. Creditoi'8 Jiaving made special deposits, if such de- 
 posits remain, in kind; 
 
 Fourth. All other creditors of such corporation, in propor- 
 tion to their respective demands, without giving any prefer- 
 ence to debts due on specialties, {a) 
 
 Second dvoidend. — If the whole of the estate of such cor- 
 poration be not distributed on the first dividend, the receivers 
 shall, within one year thereafter, and within sixteen months after 
 their appointment, make a second dividend of all tlie moueys 
 in their hands, among the creditors entitled thereto; of which, 
 and that the same will be a final dividend, hotice shall be pub- 
 lished once in each week for three weeks successively, in such 
 paper as the court may direct, and in a uewspaper printed in 
 the county where the principal place of business of such cor- 
 poration was situated, if there be such newspaper. (5) 
 
 Proceedings on second dividend. — Such second dividend 
 shall be made, in ail respects in the same manner as herein 
 prescribed in relation to the first dividend, and no other shall 
 be made thereafter among the creditors of such corporation, 
 unless ordered by the court, except to the creditors having 
 suits against it, or against the receivers, pending at the time 
 of such second dividend, and except of the moneys which 
 may be retained to pay such creditors ; but every creditor 
 who shall have neglected to exhibit his demand before the 
 first dividend, and who shall deliver his account to the re- 
 ceivers before such second dividend, shall receive the sum he 
 would have been entitled to on the first dividend, before any 
 distribution be made to the other creditors, (c) 
 
 Debts Thot exhibited. — After such second dividend shall have 
 been made, the receivers shall not be answerable to any cred- 
 
 (a) Comp. L. 1871, § 6607. 
 (6) Comp. L. 1871, § 6608. 
 (c) Comp. L. 1871, § 6609. 
 
694 . PROCEEDINGS AGAINST CORPORATIONS. 
 
 Voluntary Dissolution of Corporations — Distribution to Stockholders, etc. 
 
 itor of such corporation, or to any person having claim* 
 against such corporation, by virtue of any open or subsisting 
 engagement, unless the demand of such creditor shall have 
 been exhibited, and the engagement upon which such claims 
 are founded shall have been presented to the said receivers, 
 in detail and in writing, before or at the time specified by 
 them in their notice of a second dividend, (a) 
 
 Distribution to stockholders. — After a final dividend is 
 made, and the debts of any such corporation are paid, if there 
 shall remain any surplus in the hands of the receivers, they 
 shall distribate the same among the stockholders of such cor- 
 poration, in proportion to the respective amounts paid by 
 them, severally, on their shares of stock. (5) 
 
 When any suit pending at the time of the final dividend 
 shall be terminated, they shall apply the moneys retained in 
 their hands for that purpose, to the payment of the amount 
 recovered, and their necessary costs and expenses : and if 
 nothing shall have been recovered, they shall distribute such 
 moneys, after deducting their expenses and costs, among the 
 creditors and stockholders of tlie corporation, in the same 
 manner as herein directed in respect to a second dividend, (c) 
 
 Mecei/ver vmder control of couH. — The receivers shall be 
 subject to the control of the court, and may be compelled to 
 account at any time; they may be removed by the court, and 
 any vacancy created by such removal, by death or otherwise, 
 may be supplied by the court, {d) 
 
 Seceiver's accounts. — Within three months after the time 
 herein prescribed for making a second dividend, the receivers 
 shall render a full and accurate account of their proceedings 
 to the court, which shall be referred to a commissioner to ex- 
 amine and report thereon, (e) Previous to rendering such 
 account, the receivers shall insert a notice of their intention 
 
 (a) Comp. L. 1871, § 6610. 
 (6) Comp. L. 1871, § 6611. 
 (c) Comp. L. 1871, § 6612. 
 {d) Comp. L. 1871, § 661.3. 
 (e) Comp. L. 1871, § 6614. 
 
■ PROCEEDINGS AGAINST CORPORATIONS. 
 
 Voluntary Dissolution of Corporations— Duty of Commissioner, etc. 
 
 to present the same, once in each week for three weeks siicces- 
 Bively, in such paper as the court may direct, and in a news- 
 paper of the county in which notices of dividends are herein 
 required to be published, if there be one, specitying the time 
 and place at which such account will be rendered, {a) 
 
 Duty of commissioner on reference. — The commissioner to 
 whom such account shall be referred, shall hear and examine 
 the proofs, vouchers and documents offered for or aojainst such 
 account, and shall report thereon fully to the court. (J) 
 
 Upon the coming in of such report, the court shall hear the 
 allegations of all concerned therein, and shall allow or disal- 
 low such account, and decree the same to be final and conclu- 
 sive upon all the creditors of such corporation, upon all per- 
 sons who have claims against it upon any open or subsisting 
 engagements, and upon the stockholders of such corporation, (c) 
 
 Further accounts J)y receivers. — Such receivers shall also ac- 
 count from time to time, in the same manner and with the 
 like effect, for all moneys which shall come to their hands 
 after the rendering of such account as hereinbefore provided, 
 and for all moneys which shall have been retained hy them 
 for any of the purposes hereinbefqre specified, and shall pay 
 into court all unclaimed dividends, {d) 
 
 Corporations excepted. — The provisions of this chapter 
 shall not extend to any incorporated library or lyceum society, 
 to any religious corporation, or any incorporated academy or 
 select school ; nor to the proprietors of any burying-gronnd 
 incorporated under the laws of this State, (e) 
 
 Suits not to abate. — The dissolution of a corporation by a 
 .decree of the court, or by the expiration of its charter, or 
 otherwise, shall not abate any suit or proceedings in favor of 
 such corporation which shall have been pending at the time 
 
 (a) Comp. L. 1871, § 6615. 
 (6) Comp. L. 1871, § 6616. 
 
 (c) Comp. L. 1871, § 6617. 
 
 (d) Comp. L. 1871, § 6618. 
 
 (e) Comp. L. 1871, § 6619. 
 
696 PROCEEDINGS AQAINST CORPORATIONS. 
 
 Voluntary Dissolution of Corporations — Suits Discontinued. 
 
 of such dissolution; but all such suits or proceedings may 
 be continued by the receivers who shall have been appointed for 
 such corporation by the court or by the trustees on whom the 
 estate and efifects of such corporation shall have devolved, in 
 the name otsuch corporation, or in the names of such receiv- 
 ers or trustees, who may be substituted as plaintiffs under 
 the direction of the court in which the suit shall be pending, 
 and subject to such order as tlae court may deem expedient, 
 in relation to the payment or security of costs, {a) 
 
 Whenever a receiver of the property' and effects of a corpo- 
 ration has been appointed before its dissolution, or afterward, 
 new suits may be brought and carried on by any such receiv- 
 ers, either in their own names, or in the name of the corpo- 
 ration for which they shall have been appointed. (5) 
 
 No suit commenced in the name of any such receiver, 
 shall be abated by his removal or death; but the same may 
 be continued in the name of the remaining receiver, if tjiere 
 be one, or in the name of the successor of the receiver so re- 
 moved or deceased, or of the corporation, as may be directed 
 by the court in which t|ie suit may be pending, (c) 
 
 Suits discontinued. — The court in which any suit or pro- 
 ceeding against a corporation which shall have been dissolved 
 by a decree in chancery or otherwise, shall be pending at the 
 time of such dissolution, shall have power, on the application 
 of either party thereto, to make an order for the continuance of 
 such suit or proceeding, and the same may thereafter be contin- 
 ued until a final judgment or decree shall be had therein, {d) 
 
 Appeal. — It would seem that no appeal will lie from pro- 
 ceedings under the statute for voluntary dissolution of corpo- 
 rations, (e) 
 
 (a) Comp. L. 1871, § 6620. 
 
 (6) Comp. L. 1871, § 6621. 
 
 (c) Comp. L. 1871, § 6622. 
 
 \a) Comp. L. 1871, § 6623. 
 
 (e) See Cady v. CentervilU Knit Goods Co., 48 Mich. (April term, 1882); 
 Verplanek v. Mer. Ins. Co., 2 Paige, 438; Rowley v. Van Benthuysen, 16 
 Wend. 369. 
 
INJUNCTIONS. 697 
 
 Nature of— When and how Granted. 
 
 CHAPTEE XLII. 
 
 INJUNCTIONS. 
 
 Section 1. Nature of. 
 
 2. When and How Granted. 
 
 3. Staging Proceedings at La"w". 
 
 SECTION I. 
 
 nature of. 
 
 Injunctions, in theory, are allowed in order to prevent ir- 
 reparable mischief. To stay an evil, the consequences of 
 which could not adequately be compensated if allovFed to go 
 on. {a) It requires a party to do, or to refrain from doing, a 
 particular thing, according to the exigency of the writ. (5) 
 
 Injunctions are preliminary, or temporary, which are to 
 continue until the coming in of the answer, the filing of a 
 report, or the hearing of the cause. An injunction is called 
 general, when it continues until the further order of the 
 court, and perpetual injunctions are such as form part of the 
 decree made at the hearing upon the merits, whereby the 
 defendant is perpetually inhibited from the assertion of a 
 right, or perpetually restrained from the commission of an 
 act which would be contrary to equity and good conscience. 
 
 SECTION II. 
 
 "WHEN AND HOW GEANTED. 
 
 The allowance of an injunction is discretionary and not of 
 right, and calls for good faith upon the part of the party ask- 
 
 (a) Edwards v. The Allonez Mining Co., 38 Mich. 46. 
 (&) High on Injunctions; Kerr on Injunctions. 
 
698 INJUNCTIONS. 
 
 When and how Granted. 
 
 ing such relief, {a) Temporary injunctions are granted to 
 prevent irreparable injury before regular notice for a general 
 injunction can be given. In such case the court should grant 
 an order to show cause, allowing a temporary injunction in 
 the meantime. But the order to show cause must be made 
 absolute or the temporary injunction will fail. (5) A tempo- 
 rary injunction may, where the case is urgent, be granted upon 
 filing the bill, (c) 
 
 It will not be granted to disturb the possession of real es- 
 tate of a defendant, or to divest him of a legal right, (d) It 
 may be granted to restrain waste, (e) But a party is never 
 entitled as a matter of right to an injunction. (/") A nuisance 
 may be abated by injunction, (g) 
 
 When public officers are acting illegally, if the injury is 
 great and irreparable, they may be restrained by injunc- 
 tion. (A) In a case of official oppression an injunction will 
 be granted, (i) But State courts can not restrain federal of- 
 ficers acting officially, {j) 
 
 An injunctioncan not issue until the filing of a bill, and the 
 issuing of a subpoena, (k) When a preliminary injunction is 
 
 (a) Edwards v. Allonez Mining Co., 38 Mich. 46. 
 (6) Chancery Rule 82. 
 
 (c) 1 Barb. Ch. Pr. 610. 
 
 (d) Arnold-^. Bright, 41 Mich. 207; Hemingways. Presiow, Walk. Ch. 528. 
 
 (e) Comp. L. 1871, § 6369. 
 
 (/) Hall V. Hood, 40 Mich. 49; White v. Forbes, Walk. Ch. 114; Norris 
 V. Hill, 1 Mich. 210; Briggs v. Withey, 24 Mich. 136; Foxy. Holcomb, 32 
 Mich. 495. 
 
 (g) Gilbert v. Showerman, 23 Mich. 453. 
 
 (h) Brown v. Gardner, Har. Ch. 291; Cooper v. Alden, Har. Ch. 72; 
 Williams v. Detroit, 2 Mich. 560; Woodbridge y. Detroit, 8 Mich. 274; 
 Palmer r. Rich, 12 Mich. 414; Miller v. Grandy, 13 Mich. 540; Conway 
 v. Waverly, 15 Mich. 257; School Dist. v. D an, 17 Mich. 223; Ryan v. 
 Brown, 18 Mich. 196; Kinyon v. Duchene, 21 Mich. 498; Hathaway v. 
 Mitchell, 34 Mich. 184; Merrill v. Humphrey, 24 Mich. 170; Clement v. 
 Everst, 29 Mich. 19; Bristort v. Johnson, 34 Mich. 123; Folkert v. Powers, 
 42 Mich. 283; Upjohn v. Board of Health of Richland, 47 Mich.— 
 
 (i) Ryan v. Brown, 18 Mich. 212. 
 
 0') People v. Kidd, 23 Mich. 440. 
 
 {Jc) Mich. State Bank v. Hastings, Walk. Ch. 9; Peltier v. Peltier, Har. 
 Ch. 19; Sullingsx. Goodyear Co., 36 Mich. 314. 
 
INJUNCTIONS. 
 
 When and how Granted — By whom Granted. 
 
 sought, the bill must be verified. («) Strictly speakiTig, an 
 injunction bill proper asks no other relief, but it may pray 
 other relief and be consistent. (S) It must pray for an in- 
 junction both in the prayer for process and for relief. And, 
 with the exception of creditors' bills, the facts should be 
 sworn to positively, either by the complainant, or by some 
 person cognizant of the facts whose affidavit must be annexed 
 to the bill, (o) 
 
 By whom granted. — An injunction may be allowed by the 
 judge of the circuit court, and courts of like jurisdiction, or 
 in certain cases by a circuit court commissioner. 
 
 Formerly, one of the circuit court commissioners was, by 
 the circuit judge, designated as an injunction master. This 
 law is now repealed [d) and injunctions may be granted by 
 any circuit court commissioner subject to the same restric- 
 tions by rule as formerly prevailed, [e) 
 
 By Chancery Rule 112, the powers of commissioners have 
 been restricted as follows: They are prohibited 
 
 1. From vacating any order or decree of the circuit court, 
 or any order made by a circuit judge. 
 
 2. From granting an injunction to stay proceedings at 
 law, unless reasonable notice of the time and place of hearing 
 the application therefor shall have been previously given to 
 the adverse party. 
 
 3. From granting any injunction without such notice, nn- 
 less in his opinion the peculiar exigencies of the case require 
 it for manifest reasons shown by affidavit. (_/") 
 
 A commissioner can not stay proceedings before judg- , 
 ment in any cause in which a verdict has been rendered, nor an 
 order to stay proceedings on a capias ad respondendum, (g) 
 
 (a) Chancery Rule 8; Moore v. Cheeseman, 23 Mich. 336. 
 (6) Blackwood v. Van Vleet, 11 Mich. 252; Widner v. Olmstead, 14 
 Mich. 124. 
 
 (c) See Chancery Rules 102, 103. 
 
 (d) Laws 1881, p. 204. 
 
 (e) Chancery Rule 111. 
 
 (/) See Soinaij v. Coats, 17 Mich. 411; Laws 1881, p. 243. 
 (g) Laws 1881 , p. 243. 
 
700 INJUNCTIONS. 
 
 Staying Proceedings at Law. 
 
 After the issuing of an execution, an order to stay proceed- 
 ings thereon granted by a commissioner, does not percent a 
 levy, but only suspends the sale until a decision by the proper 
 court, (a) It has been held that an application for a stay of 
 proceedings must be made to the court itself; that an officer 
 out of court has no power to allow an injunction for that pur- 
 pose. (5) 
 
 After an application for an injunction has been refused, in 
 whole or in part, or granted conditionally on terms, no second 
 application can be made, (c) 
 
 IT'o. 259. Sow hill is indorsed when writ is allowed by cir- 
 cuit judge. 
 
 Let an injunction issue pursuant to the prayer of the with- 
 in bill. 
 Dated, etc. 
 
 A JM, 
 Circuit Judge. 
 
 Ifo. .260. By a commissioner. 
 I certify that I have examined tlie within bill, and am of 
 the opinion that an injunction should be issued pursuant to 
 the prayer thereof. 
 Dated, etc. 
 
 E HG, 
 
 Circuit Court Commissioner 
 and Injunction Master, 
 County, Mich. 
 
 SECTION III. 
 
 STAYING PEOCEEDINGS AT LAW. 
 
 The circuit judges, and each injunction master within the 
 circuit for which he may be appointed, shall severally have 
 power to grant injunctions to stay proceedings at law. [d) 
 
 (o) Laws 1881, p. 243. 
 
 (6) Mason v. Payne, Walk. Ch. 460. 
 
 .(c) Laws 1881, p. 243. 
 
 \d) Comp. L. 1871, § 5145. 
 
INJUNCTIONS. 701 
 
 Staying Proceedings at Law — Bond to be Given — After Verdict, etc. 
 
 Bond to he given. — T^o injunction shall issue to staj the 
 trial of any personal action in a court at law, until the party- 
 applying therefor shall execute a bond with one or more suffi- 
 cient sureties, to the plaintiff in such action at law, in such 
 sum as the circuit judge or other officer allowing the injunc- 
 tion shall direct, conditioned for the payment to the said plaint- 
 iff, or his legal representatives, of all moneys which may be 
 recovered by such plaintiff, or his representatives, or the col- 
 lection of which may be stayed by such injunction, in such 
 action at law, for debt or damages, and for costs therein ; and 
 also for the payment of such costs as may be awarded to them 
 in the court in chancery, in the suit in which such injunction 
 shall issue, (a) 
 
 After verdict. — Ifo injunction shall issue to stay proceed- 
 ings at law in any personal action, after verdict, and before 
 judgment thereon, unless a sum of money equal to the amount 
 for which the verdict was given shall be first deposited with 
 the court from which the injunction issues, by the party ap- 
 plying for such injunction, or a bond for the payment thereof 
 shall be given as hereinafter directed. (5) 
 
 After judgment. — ITo injunction shall issue to stay pro- 
 ceedings at law in any personal action, after judgment, un- 
 less 
 
 First. A sum of money equal to the full amount of such 
 judgment, including costs, shall be first deposited by tlie 
 party applying for such injunction, or a bond in lieu thereof 
 be given as hereinafter directed ; and. 
 
 Second. Unless such party, in addition to such deposit, or 
 bond in lieu thereof, shall also execute a bond with one or 
 more sufficient sureties, to the plaintiff in such judgment, in 
 such sum as the circuit judge or officer allowing the injunc- 
 tion shall direct, conditioned for the payment to the said 
 plaintiff, or his legal representatives, of all such damages and 
 
 (a) Comp. L. 1871, § 5133; Hathaway y. Weeks, 34Mioli. 237. 
 (6) Comp. L. 1871, § 5134. 
 
702 INJUNCTIONS. 
 
 Staying Proceedings at Law — In Ejectment. 
 
 costs as may be awarded to them by the court, at the final 
 hearing of the cause, (a) 
 
 If after a verdict or judgment at law, any moneys shall be 
 deposited in the court pursuant to either of the two last sec- 
 tions, the same may be paid, on the order of the court, to the 
 plaintiff in such action at law, upon his executing to the 
 people of this State a bond, in a penalty double the amount 
 so deposited, with such sureties as the court shall approve, 
 conditioned that such plaintiff will pay to the register with 
 whom the bill shall be filed, the moneys which he shall so re- 
 ceive, and the interest thereon, or any part thereof, according 
 to any order or decree of the court that may be made in re- 
 lation to the 8ame.(5) 
 
 Whenever the money so deposited shall be paid to the 
 ' plaintiff in the action at law, if the final decision of the cause 
 in chancery shall be against the party obtaining the injunc- 
 tion, the circuit judge may order the bond that shall have 
 been given to be canceled, and shall continue the injunction 
 to stay the proceedings at law, or shall compel the plaintifi 
 therein to cause such judgment to be satisfied and discharged 
 of record, (e) 
 
 In ejectment. — No injunction shall issue to stay proceed- 
 ings at law in any action for the recovery of lands, or of the 
 possession thereof, after verdict, unless the party applying 
 therefor shall execute a bond, with one or more sureties, to 
 the plaintiff in such action at law, in such sum as the circuit 
 judge or oflacer allowing the injunction shall direct, condi- 
 tioned for the payment to the plaintiff in such action, and his 
 legal representatives, of all such damages and costs as may 
 be awarded to them, in case of a decision against the party 
 obtaining such injunction, {d) 
 
 The damages to be paid upon the dissolution of such in- 
 
 (a) Comp. L. 1871, § 5135. 
 (6) Comp. L. 1871, § 5136. 
 
 (c) Comp. L. 1871, § 5137. 
 
 (d) Comp. L. 1871, § 5138; 37 Mich. 533. 
 
INJUNCTIONS. 703 
 
 Staying Proceedings at Law — ^Fraud — Ascertaining Sufficiency of Sureties. 
 
 junction, shall be ascertained by reference to a commissioner, 
 or in such manner as the court shall direct, and shall include i 
 not only the reasonable rents and profits of the lands recovered 
 by such verdict, but all waste committed thereon after the 
 granting of the injunction, {a) 
 
 The circuit judge shall have power to dispense with any 
 deposit of moneys required by either of the preceding sec- ■ 
 tions, and in lieu thereof, to direct the execution of a bond, 
 with sureties, conditioned to pay the amount so required to be 
 deposited, whenever ordered by the court; or if a bond is al- 
 ready required in addition to such deposit, then to direct the 
 enlargement of the penalty and condition of such bond as may 
 be requisite; but whenever such deposit shall be dispensed 
 with, the bond so substituted or enlarged, shall be executed 
 by at least two suflScient sureties. (5) 
 
 Fraud. — "Whenever an injunction shall be applied for, to 
 stay proceedings at law in an action after judgment or ver- 
 dict, on the ground that such judgment or verdict was ob- 
 tained by actual fraud, the circuit judge, or officer granting 
 the injunction, shall have power to dispense with the deposit 
 of any moneys, or the execution of any bond, (c) 
 
 Ascertaining sufficiency of sureties. — The sufficiency of th« 
 sureties in any bond executed under, the provisions of this 
 chapter, relating to staying proceedings at law by injunc- 
 tion, shall be ascertained, either i 
 
 1. By the certificate of any commissioner of tlie proper 
 county, stating that he has inquired into the circumstances 
 of such sureties, and is satisfied of their sufficiency; or 
 
 2. By the affidavit of such surety, stating that he is a 
 householder, resident within this State, and that he is worth 
 a sum equal to the amount in which the bond shall have been 
 required, over and above all debts and demands against him. {d) 
 
 (a) Comp. L. 1871, § 5139. 
 (6) Comp. L. 1871, § 5140. 
 fc) Comp. L. 1871, § 5141. 
 {d) Comp. L. 1871, § 5142. 
 
lO'i INJUNCTIONS. 
 
 Staying Proceedings at Law-^Filing of Bond — Measure of Damages, etc. 
 
 Filing of bond. — Whenever a bond shall be required to be 
 executed as aforesaid, prior to the issuing of an injunction, 
 the same, with the certificate or affidavit above required, shall 
 be filed with the register, before the sealing and delivery of 
 the injunction, {a) and this filing can not be dispensed with 
 by the court. (5) The circuit judge shall direct the delivery 
 of any such bond to the person entitled to the benefit thereof, 
 for prosecution, wheuever the condition of such bond shall be 
 broken, or the circumstances of the case shall require such de- 
 livery, (c) 
 
 ■Measure of damages. — The decree of the court awarding 
 damages in an injunction suit, is conclusive of the amount of 
 damages in an action on the bond. The defendant in de- 
 fense, will not be permitted to question the same; and neither 
 he nor the surety can question the correctness of such decree 
 in a suit on the bond, {d) 
 
 As we have already seen in the previous chapter, injunc- 
 tions can issue in proceedings against corporations. 
 
 Enjoining taxes. — Whenever it is sought to restrain the 
 payment of any tax or assessment, except for drainage pur- 
 poses, levied by lawful authority, the officer to whom such 
 apph'cation is made, must require as a condition to the allow- 
 ance of injunctions, that the amount of the taxes, the collec- 
 tion of which is sought to be ejijoined, with the interest ami 
 charges to accrue thereon, be deposited with the register in 
 chancery for the county in which such suit is to be com- 
 menced, and which money shall, by the order of the court, be 
 applied in payment of such taxes, interest, etc, within ten 
 days after final decree, if the injunction be not made perpet- 
 ual, {e) 
 
 {a) Comp. L. 1871, § S143.- 
 
 (6) Carroll v. F. & M. Bank, Har. Ch. 197. 
 
 («) Comp. L. 1871, § 5144; Hathaway y. Weeks, Si Mich. 2.37. 
 
 {d) Lothrop v. Southworth, 5 Mich. 436; Thompsons. Richards, 14 Mich. 
 172. 
 
 (e) Laws 1873, p. 163; Merrill v. Auditor-gen'l, 24 Mich. 170,; Conway 
 v. Waverly, 15 Mich. 257; Palmer v. Napoleon, 16 Mich. 176. 
 
INJUNCTIONS. 705 
 
 Staying Proceedings at Law — When Judge or Commissioner Disqualified, etc. 
 
 When judge or commissioner disqualified. — When any cir- 
 cuit judge or other officer of any court authorized to grant 
 injunctions, are absent, sick or otherwise disqualified from 
 allowing an injunction in any case pending, or about to be 
 commenced in such, circuit or county, upon due proof of 
 such facts by affidavit, the circuit judge of any judicial dis- 
 trict adjoining the judicial district in which said circuit or 
 county is situated, shall have authority at chambers, or in 
 any place where he maybe, to grant or deny such injunction, 
 the same as if he were the circuit judge of the circuit in 
 which such suit is pending, or about to be commenced, and 
 after the allowance of such injunction, the judge ordering the 
 same shall have concurrent jurisdiction to modify or dissolve 
 the same with the presiding judge wherein such suit is pend- 
 ing, (a) 
 
 Dissolution. — The general rule is that an m parte injunc- 
 tion will not be dissolved until the coming in of the answer. 
 There are certain exceptions, as where the writ was irregu- 
 larly obtained, or the bill is wanting in equity. (5) The mo- 
 tion to dissolve an injunction is in general, founded upon the 
 answer, and at the hearing the burden rests upon the defend- 
 ant, (c) Exceptions to an answer, will not prevent the disso- 
 lution of an injunction, {d) 
 
 (a) Laws 1879, p. 90. 
 
 (V) High on Injunctions, §§ 879, 880. 
 
 (c) Upon the subject of breach of injunction and of dissolution, see High 
 on Injunctions, and Kerr on Injunctions. 
 
 (d) Chancery Rule 17. 
 
 45 
 
706 CONTEMPTS. 
 
 Nature of. 
 
 CIIAPTEE XLITI. 
 
 
 CONTEMPTS. 
 
 Section 1. 
 2. 
 3. 
 4. 
 
 Natuee of. 
 
 Proceedings bt Attachment. 
 Proceedings by order to Show Cau; 
 Punishment and Discharge. 
 
 
 SECTION I, 
 
 
 NATURE OF. 
 
 "We have already considered that class of contempts arising 
 from refusal to appear and answer after service of process. 
 That class of contempts are called ordinary. They are purged 
 by comphdng with the requirements of the court. There is 
 another class of contempts called extraordinary, which may be 
 punished by fine or imprisonment. They are such contempts 
 as offend against the dignity of the court. 
 
 Chapter 182 of the Complied Laws for 1871, provides that 
 every court of record shall have power to punish, by fine and 
 imprisonment, or either, any neglect or violation of duty, or 
 any misconduct by which the rights or remedies of a party in 
 a cause or matter depending in such court, or triable therein, 
 may be defeated, impaired, impeded or prejudiced in the 
 several cases specified in the subdivisions of the section. 
 
 The power of the court to punish for contempts extends 
 over parties to suits, attorneys, counselors, solicitors, and 
 all other parties, for the non-payment of any money ordered 
 by the court to be paid, or case where, by law, execution can 
 not be awarded for the collection of such sum, or for any other 
 disobedience of any lawful order, decree or process of the 
 court. It also extends to all cases where attachments and 
 proceedings for contempts have been usually adopted and 
 
CONTEMPTS. 707 
 
 Nature of. 
 
 practiced in courts of record to enforce the civil remedies of 
 a party, or to protect the rights of such party, {a) 
 
 Whenever disorderly, contemptuous or insolent behavior is 
 committed during the sitting of the court, and directly tend- 
 ing to interrupt its proceedings, or to impair the respect due 
 to its authority, or there is any breach of the peace, noise or 
 disturbance, directly tending to interrupt the proceedings of 
 the court, the same are punishable as criminal contempts. (J) 
 
 When the contempt is not committed in the immediate 
 view and presence of the court, due proof must be made to 
 the court, and the accused given a reasonable time to prepare 
 his defense, id) An attachment for contempt, can not be 
 issued without an order from the court, (d) 
 
 Criminal contempts are punished by fine or imprisonment, 
 or both, in the discretion of the court, (e) The amount of fine 
 and length of the imprisonment, is limited by the statute. 
 
 When the court makes any rule or order, for the payment 
 of costs, or any otlier sum of money, and proof is made by 
 affidavit of personal demand for the same, and a refusal to 
 pay it, the court may order a precept to commit the person so 
 disob,eying to prison, until such sifm and the costs and ex- 
 penses are paid, (y) But before punishment, the party must 
 have an opportunity to be heard, (^) and there must have 
 -been a demand made upon him personally. The remedy is a, 
 harsh and extreme one, but it is allowable to compel obedi- 
 ence to an order requiring temporary alimony. We have al- 
 ready pointed out the steps to be taken to put a party in con- 
 tempt for failure to pay money on the order of the court. (A) 
 
 («) Comp. L. 1871, §§ 5689, 5690, 5691. 
 (6) Comp. L. 1871, §§ 5689, 5690, 6691. ' 
 
 (c) Comp. L. 1871, § 5691. , 
 
 (d) Thompson v. Ellsworth, 39 Mich. 719. 
 
 (e) Comp. L. 1871, § 5667. 
 
 (/) Comp. L. 1871, 5692; Haines v. Haines, 35 Mich. 138; North v. 
 North, 39 Mich. 67; Brown v. Brown, 22 Mich. 299. 
 (g) Steller v. Steller, 25 MicH. 159. 
 (h) Ante, page 580. 
 
708 CONTEMPTS. 
 
 Proceedings by Attachment. 
 
 SECTION II. 
 
 PEOOEEDINGS BY ATTACHMENT. 
 
 The foundation for an attachment is laid by affidavits, (a) 
 A copy of sucli affidavits must be served upon the accused, 
 except in cases of disobedience of a rule or order, requiring); 
 the payment of money, and any subpoena, and reasonable time 
 must be given him to make his defense. (5) 
 
 "When an attachment issues on the special order of the 
 court, the order specifies the penalty in which the accused 
 may give a bond for his appearance. («) In other cases, when 
 a party is entitled to an attachment without the special order 
 of the court, the judge of the court or some officer authorized 
 to perform the duties of suck judge, upon due proof of the 
 facts, will direct the penalty 6f the bond and indorse the or- 
 der on the writ, (d) 
 
 After the arrest of the defendant, he will be discharged, 
 upon his executing the proper bond, (e) 
 
 If the accused is unable to travel or attend court person- 
 ally by reason of sickness or otherwise, this is sufficient ex- 
 cuse for not bringing him before tiie court, (y) 
 
 When the officer returns the attachment, he also returns 
 the bond, if any is taken, and files the same with the attach- 
 ment. ((/) If the officer fails to return the writ by the return 
 day, upon due proof of such default, an attachment may be 
 issued against him upon the allowance of the proper of- 
 ficer. (A) The allowance must state the cause of issuing the 
 same, and that the defendant is not to be discharged upon 
 bail until ordered by the court, (i) 
 
 (a) Comp. L. 1871, § -5691; Thompson v. Ellsworth, 39 Mich. 719. 
 (6) Comp. L. 1871, § 5691. 
 
 (f) Comp. L. 1871, § 5694. 
 {d) Comp. L. 1871, § 5698. 
 
 (e) Comp. L. 1871, §§ 5699, 5700 to 5704. 
 (/)Comp. L. 1871, §5721. 
 
 (g) Comp. L. 1871, § 5704. 
 (h) Comp. L. 1871, § 5705. 
 («) Comp. L. 1871, § 5705. 
 
CONTEMPTS. 709 
 
 Proceedings by Order to Show Cause. 
 
 The officer arrests the defendant and keeps him in his cus- 
 tody, bringing him personally before the court, and detaining 
 him subject to its order, (a) Interrogatories must then be 
 filed, specifying the matters alleged against the accused, and 
 requiring his answer, which must be in writing and upon 
 oath, and filed within such reasonable time as the court al- 
 lows. (J) Affidavits in confirmation of and contradicting the 
 answer may be received by the court, and upon the original 
 affidavits, the answer and these subsequent affidavits, the 
 court determine whether the accused is in contempt, [o) 
 
 SECTION HI. 
 
 PEOCEEDINGS BY OEDEE TO SHOW CATJSE. 
 
 When an order to show cause is sought, requiring the party 
 to advance reasons why he should not be punished for con- 
 tempt, it should be founded upon affidavits as in attachment 
 proceedings, and the order and affidavits upon which it is 
 founded must be served upon the accused personally, within 
 such reasonable time as the court orders. On the hearing of 
 the order, if the contempt is denied the same proceedings are 
 had, as upon the return of an attachment. If the party fails to 
 appear, or shows no sufficient cause, the court may make a fi- 
 nal order imposing the final punishment. The court must be 
 satisfied by proper proof, that the order to show cause, and 
 copies of the affidavits upon which it is founded, have been 
 served personally upon the defendant, (d) 
 
 If the accused is in the custody of an officer by virtue of an 
 execution against his body, or by virtue of any process for any 
 other contempt, or misconduct, the court may award a writ of 
 habeas corpus, to bring up the body of such person to answer 
 for such misconduct, and in cases where a party is entitled to an 
 
 (a) Comp. L. 1871, § 5706. 
 (6) Comp. L. 1871, § 5707. 
 
 (c) Comp. L. 1871, § 5707; see People v. Kidd, 23 Mich. 440. 
 {d) 2 Barb. Ch. Pr. 278; Albany Bank v. Schermerhorn, 9 Paige, 372; Pitt 
 T. Davidson, 37 Barb. 97; McCredie v. Senior, 4 Paige, 378. 
 
710 CONTEMPTS. 
 
 Punishment and Discharge. 
 
 attachment against any person, without the special order of the 
 court, and such person shall be in custody, a writ of habeas 
 corpus may be allowed by any judge of the court or any person 
 authorized to perform the duties of such judge in vacation, {a) 
 Upon this writ, the sheriff in whose custody the party is, 
 brings him before the court and detains him thereto await its 
 order. (5) 
 
 When a party is ordered to pay the costs of any interlocu- 
 tory proceedings, and no time of payment is specified in the 
 order, he shall pay them within twenty days after the filing of 
 the taxed bill and afiidavit, and service of a copy of the order 
 and such tax bill; or if a gross sum is specified in the order, 
 within twenty daj's of service of a certified copy of the order. 
 And if he neglect or refuse to pay such costs within the time 
 prescribed as aforesaid, or specified in the order, the adverse 
 party, on an affidavit of the personal service of such copies, 
 and a demand of payment, and that such costs have not been 
 paid, may have an execution therefor, or move for an attach- 
 ment against the delinquent, {o) 
 
 Whenever a rule has been entered in any court, according 
 to the practice thereof, requiring any officer, or other person 
 to whom any process of such court may have been directed 
 and delivered, to return the same, an attachment for disobe- 
 dience of such rule may iss«.e according to the practice of the 
 court, to arrest such officer ^r person to answer for such dis- 
 obedience, without special application to the court, (c?) 
 
 SECTION IV. 
 
 PUNISHMENT AND DISCHARGE. 
 
 If the defendant is found guilty of the misconduct alleged 
 against him, and the court finds that it ^ivas calculated to, or 
 actually did defeat, impair or prejudice the rights or remedies 
 
 (a) Comp. L. 1871, §§ 5695, 5696. 
 (6) Comp. L. 1871, § 5697. 
 (c) Chancery Rule 100. 
 (d')Comp. L. 1871, §5694. 
 
CONTEMPTS. 711 
 
 Punishment and Discharge— Order of Conviction. 
 
 of any party, in a cause or matter in sncli court, a fine or im- 
 prisonment may be imposed, or both, as the nature of the case 
 shall require, (ff) Instead of imposing a line, the court may 
 order a sum paid to indemnify the injured party, {h) When 
 this is done, a fine can not be imposed in addition, (e) In all 
 cases than those specified, the flue must not exceed two hun- 
 dred and fifty dollars over and above the costs and expenses 
 of the proceedings, {d) And when the contempt consists iu 
 omitting to perform, some act or duty that the accused 
 can yet perform, he shall only be imprisoned until he per- 
 forms the same, and pays the fine, and the costs and expenses 
 of the proceedings, {e) 
 
 In all other cases where no special provision is otherwise 
 made by law, if imprisonment is ordered, it must not exceed 
 six montlis, and until fine, costs and expenses of the proceed- 
 ings are paid, (y) 
 
 Order of conviction. — Barbour says, {g) that the order of 
 the court convicting a party of a contempt in a proceeding to 
 enforce a civil remedy, should recite the substance of the al- 
 leged misconduct, the adjudication of the court that the ac- 
 cused has been guilty thereof, and that such misconduct was 
 calculated to, and did, impair, defeat, impede and prejudice 
 the rights or remedies of the prosecutor or the parties in the 
 cause. And it should direct the payment of a fine suflBcient 
 to indemnify the party injured, and to satisfy the costs and ex- 
 penses of the proceedings. The order should not direct the 
 party to pay the costs of the proceedings to ie taxed. But 
 the costs should be taxed and inserted in the order as a part 
 of the fine imposed upon him. 
 
 Where anything remains to be done by the accused party to , 
 
 [a] Comp. L. 1871, § 5703. 
 (6) Comp. L. 1871, § 5709. 
 
 (c) Haines v. Haines, 35 Mich. 146. 
 
 (d) Comp. L. 1871, § 5710. 
 
 (e) Comp. L. 1871, § 5711. 
 (/)Comp. L. 1871, §5713. 
 
 (fir) 2 Barb. Oh. Pr. 279,230; Albany Banh v. Schermerhom, 9 Paige, 372. 
 
712 CONTEMPTS. 
 
 Punishment and Discharge — Process of Commitment — Sequestration, etc. 
 - - . 
 
 purge his contempt, the order should specify what he is to do, 
 and the manner in which it is to be done to entitle him to a , 
 discharge. If the party is committed to prison, the order 
 must specify the duration of the imprisonment, (a) 
 
 Process of commitment. — ^The order of conviction having 
 been drawn up and entered, a process of commitment must 
 be next made out. (h) When the misconduct complained of 
 consists in the omission to perform some act or duty which 
 is yet in the power of the defendant to perform, the order and 
 the process of commitment must specify the act or duty to be 
 performed, and the amount of the fine and expenses to be 
 paid, (c) The process must specify the terra of imprison- 
 ment, {d) 
 
 Sequestration. — Where the party after being committed 
 perseveres in his refusal to do the act required, a sequestra- 
 tion may issue, and his servants, agents, etc., may be prohib- 
 ited from delivering his propetty to him, or applying it to his 
 use on pain of contempt, (e) 
 
 Effect of contempt. — It is a general rule that a party in 
 contempt can not apply to the court for a favor that is not a 
 matter of strict right until he has cleared his contempt and 
 paid" costs, {f) But, if the proceedings are irregular, the par- 
 ty may move to set them aside. {<g) Where there is a mere 
 failure on the part of the accused to comply with the pro- 
 visions of an [interlocutory order before the contempt is 
 fixed, he may so apply. (A) 
 
 As to the manner in which contempt maybe cleared, waived 
 
 (o) 2 Barb. Ch. Pr. 280; Comp. L. § 5713. 
 (6) 2 Barb. Ch. Pr. 280. 
 
 (c) Comp. L. 1871, §§ 5711, 5712; 2 Barb. Ch. Pr. 280. 
 
 (d) Comp. L. 1871, §§ 5712, 5713. 
 
 (e) 2 Barb. Ch. Pr. 280. 
 
 (V) Peltiers. Peltier, Har. Ch. 19; McClung v, McClung, 40 Mich. 496; 
 2 Barb. Ch. Pr. 281; 
 (g) 2 Barb. Ch. Pr. 281. 
 Ih) Peltier v. Peltier, Har. Ch. 19. 
 
CONTEMPTS. 713 
 
 Punishment and Discharge — Appeal. 
 
 or discharged, see 1 Daniels, Ch. Pr. and 2 Barb. Oh. Pr. 
 An ordinary contempt between parties is cleared by the of- 
 fending party, performing the act neglected, and by paying 
 costs. Where process has been issued against a defendant in 
 contempt for want of answer, he should enter his appearance, 
 and pay or tender costs. If complainant's solicitor accepts 
 the costs it will be at his own risk if he puts the process into 
 execution, and if he refuses to accept, the defendant must 
 apply to the court to have the order discharged. "When the 
 defendant is in actual custody, he can not be discharged with- 
 out an order of the court. Tiie application to the court should 
 be upon motion or petition, on notice to the other party. The 
 application may be supported by affidavits. 
 
 Appeal. — An appeal lies to the Supreme Court, from eti 
 order adjudging a party guilty of contempt for violating an 
 injunction, and awarding a sum of money to the other par- 
 ty, (fl) Also for failure to restore property to a receiver, on an 
 order of the court, (5) And for contempt for non-payment 
 of alimony (c) 
 
 (ffl) FeOTfile v. Simonson, 9 Mich. 491; People v. Caplis, 17 Mich. 449. 
 
 (6) People Y. Jones, 33 Mich. 303. 
 
 (c) Haines v. Haines, 35 Mich. 1.38; see Brewer -v. Kidd, 23 Mich. 440. 
 
714 MOTIONS, ORDERS AND AFFIDAVITS. 
 
 Motions — Notice. 
 
 1 
 
 CHAPTER XLIT. 
 
 MOTIONS, OEDEES AND AFFIDAVITS. 
 
 Section 1. Motions. 
 2. Orders. 
 3 Affidavits. 
 
 SECTION I. 
 
 MOTIONS. 
 
 Motions are of course or special. Motions of course re- 
 quire no notice, and are usually those upon which orders of 
 course are entered by the register without actual application 
 to the court. A special motion is one, not granted of course, 
 but which is founded upon the pleadings, upon affidavits, or 
 upon some previous order of the court. A motion is an appli- 
 cation to the court made ore tenus. 
 
 Some special motions are made ex parte, as an application 
 for a guardian ad litem, for an order to show cause why an 
 injunction should not issue, or for the appointment of a next 
 friend. 
 
 Notice. — When a party has appeared, notice of every ap- 
 plication in the court should be given him, relating to the 
 cause, {a) It must be in writing, be entitled in the court 
 and cause, addressed to the oppo^ite solicitor, or to the party ^ 
 himself, in cases where personal service must be had, and 
 signed by the solicitor moving. It must state the time and 
 place when and where the motion will be made, and also the 
 nature of the motion. It usually states that the motion will 
 be made at the opening of court upon a certain day, or as 
 
 {«) Com;\ L. 1871, § 6082. 
 
MOTIONS, OEDEES AND AFFIDAVITS. 715 
 
 Motions — Form of Special Motion. 
 
 soon thereafter as counsel can be heard. It must be called 
 up in conrt at the time when noticed, and if it can not be 
 lieard that day, it stands by rale, continued from day to day 
 without any special continuance, (a) 
 
 All notices of special applications w^hen required sliall be 
 notices of at least eight days, if the solicitor of the adverse 
 party resides over one hundred miles from the place where 
 the court is held. If over fifty and not exceeding one hun- 
 dred, six days, and in all other cases four days. (5) 
 
 Copies of the affidavits or papers upon which the motion 
 ' is founded must be attached to the notice when served, and if 
 founded on pleadings, or other papers on file, the notice must 
 refer to them. A copy of the paper on which any special ap- 
 plication is founded must be served the same length of time 
 as the notice of the application, (c) 
 
 Counter affidavits may be read in opposition to a motion 
 without having been previously served, {d) 
 
 Applications by petition must be noticed and served the 
 same as motions. 
 
 Wo. 26i. Form of sjpeeial motion. 
 
 {Title of court and cause.) 
 To J F A, 
 
 Solicitor for defendant. 
 
 Sir: You will please to take notice, that upon — the 
 
 — day of A. D. 18 — , at the opening of court on 
 
 said day, or as soon thereafter as counsel can be heard, I 
 shall move said court for an order for alimony and expenses 
 in said cause, pending the litigation. Said motion will be 
 founded upon the pleadings in said cause now on file in said 
 court, and the petition of A B, the complainant, this day filed 
 in said cause with a true copy of which you are herewith 
 served, and upon the affidavit of H C B, this day filed in said 
 court, with a true copy of which you are also herewith served. 
 Dated etc. Yours etc. 
 
 FES, 
 Solicitor for complainant. 
 
 (a) Chancery Eule 5. 
 
 (6) Chancery Eule 61 ; CasUn v. Camp, 26 Mich. 391. 
 
 (c) Chancery Rule 61. 
 
 [d) Laihrop v. Hicks, 2 Doug. 223, 
 
716 MOTIONS, ORDERS AND AFFIDAVITS. 
 
 Motions — Motion or Petition for Rehearing, etc. 
 
 Motion or petition for rehearing. — A petition for a rehear- 
 ing siiall state the special matter or cause on which such re- 
 hearing is applied for, and the particular points in which the 
 decree or order is alleged to be erroneous, but it shall not be 
 necessary to state the proceedings anterior to such decree or 
 order sought to be reversed; and the facts, if they do not ap- 
 pear upon the records of the court, shall be verified by the affi- 
 davit of the party, or of some other person. It sliall also be 
 accompanied by the certificate of his counsel, that they have 
 examined the case, and that in their opinion, the decree or or- 
 der is erroneous in the particulars mentioned in the petition. 
 And a copy of the petition with the usual notice of presenting 
 the same, shall be served upon the adverse party, but the 
 rehearing sliall not be considered a matter of course in any 
 case, (a) 
 
 Tlie court may correct a mistake in its decree, either upon 
 motion or petition. (5) 
 
 If a reliearing is granted, the petitioner shall lose the ben- 
 efit thereof, unless he shall, within ten days thereafter, deposit 
 with the register fifty dollars, to answer the costs and damages 
 of tlie adverse party, if the decree or order shall not be ma- 
 terially varied, (c) 
 
 Motion to dismdss hill for want of prosecution. — In any 
 suit against several defendants, if the complainant does not 
 use due diligence in prosecuting such suit, any of said defend- 
 ants may apply to dismiss the bill for want of prosecution, 
 and on such application, further time shall not be allowed to 
 complainant without good cause shown for the delay, {d) 
 
 Mules relative to serving papers. — ^Every solicitor shall have 
 an agent at the county seat in each county of this State, where 
 a circuit court is established, except in the county where such 
 solicitor keeps his office. The register, deputy register, and 
 
 (a) Chancery Rule 81. 
 
 (6) Bates M. Garrison, Har. Ch. 221: Jerome v. Seymour, Walk. Chn359. 
 
 (c) Chancery Rule 83. 
 
 [d) Chancery Rule 4.6. 
 
MOTIONS, ORDERS AND AFFIDAVITS. 717 
 
 Motions — Rijles Relative to Serving Papers. 
 
 practicing solicitors, or any other person specially authorized 
 by the court, may be such agent; but the agent must have an 
 office or a regular and known place of business within two 
 miles of the register's ofnce, in the city or town for which he 
 is appointed agent. The appointment of an agent shall be in 
 writing, signed by the solicitor, and specifying his place of 
 residence. It shall be filed with the register, at the place for 
 which the appointment is made, who shall keep in his office a 
 list of sucli agents, with the names and residences of the so- 
 licitors "appointing them, (a) 
 
 Under the Michigan practice, the foregoing rule is virtually 
 obsolete.. 
 
 When the solicitors for adverse parties do not reside in 
 the same city, village or township, service of papers contem- 
 plated by these rules (Michigan chancery rules,) maybe made 
 on an agent; but if there be no such agent, such service may 
 be made by mail, post paid. Notice of the filing of all plead- 
 ings shall be given to the adverse party, except when other- 
 wise provided by these rules, within the time limited for filing 
 the same. But no service of notice in the ordinary proceed- 
 ings in a cause sliall be necessary to be made on a defendant 
 who has not appeared therein, (b) 
 
 When the service is on an agent, or by putting in the post 
 office for want of an agent, it must be double the time of ser- 
 vice which would be requisite if the service was on the solicitor 
 in person. And if the agent resides more than one hundred 
 miles from the agent or office where the service is made, the 
 time of such service shall in no case be less than fifteen days. 
 Notices and other papers may, in the absence of a solicitor or 
 agent from his office, be served by leaving the same with his 
 clerk or law partner in such office, or with a person having 
 charge thereof ; and if no person is found in the office,' by 
 leaving the same between the hours of six in the morning and 
 nine in the evening, in a suitable and conspicuous place in 
 such office; or, if the office be not open so as to admit of ser- 
 
 (a) Chancery Rule 1. 
 (6) Chancery Rule 2. 
 
718 MOTIONS, ORDERS AND AFFIDAVITS. 
 
 , Orders— Affidavits. 
 
 vice therein, then by leaving the same at the residence of the 
 solicitor or agent, with some person of suitable age and dis- 
 cretion, (a) 
 
 SECTION II. 
 
 OEDEES. 
 
 We have already considered the subject of orders to some 
 extent, (b) But little need be said in addition. All rules to 
 take effect nisi, etc., unless otherwise specially directed, shall 
 be rules of eight days; and the time on all rules, orders, 
 notices and proceedings where a time is given or stated, shall, 
 unless otherwise expressly provided, be deemed and taken to 
 be one day inclusive and one day exclusive, but if the time 
 expires on Sunday, the whole of the succeeding day shall be 
 included, (c) For a form of common order, or order of course, 
 see form number eighty-one, page 169. 
 
 Orders by consent, based upon agreement of counsel, are 
 frequently entered. But no agreement or consent between 
 parties, in respect to the proceedings in a cause, shall be al- 
 leged or suggested by either of them against the other, unless 
 the same shall have been reduced to the form of an order by 
 consent, and entered in the book of common orders; or unless 
 the evidence thereof shall be in writing, subscribed by the 
 party against whom it is alleged or suggested, or by his solic- 
 itor or counsel, {d) 
 
 SECTION III. 
 
 AFFIDAVITS. 
 
 An affidavit to be used in a case should be entitled in the 
 court and cause, or it can not be used, (e) But, where it is 
 attached to a paper properly entitled and refers to it, the 
 
 (a) Chancery Rule 3. 
 (6) Ante, page 214. 
 
 (c) Chancery Rule 85. > 
 
 (d) Chancery Rule 84. 
 
 (e) Whipple v. Williams, 1 Micli. 115, 
 
MOTIONS, ORDERS AND AFFIDAVITS. 719 
 
 Affidavit — Form of Jurat to Affidavit. 
 
 affidavit will be deemed to adopt the title by reference, {a) 
 An affidavit must be entitled with the names of all the par- 
 ties to the suit. (5) The complainant's name must be placed 
 first, (c) and where there are several defendants, it is sufficient 
 if the affidavit states the name of the first defendant and 
 "others," without setting forth all tlieir names at length. 
 The venne, which is the county in which the affidavit is 
 
 sworn, to wit, " county, ss.," is an essential part of the 
 
 affidavit, {d) The words " before me," should appear in the 
 jurat, (e) The affidavit must first be entitled in the court 
 and cause, then follows the venue, then the stating part, next 
 the signature of the de])onent, then the jurat. 
 
 JVo. 262. Form of jurat to affidavit. 
 
 Subscribed and sworn to before me, this ■ day of 
 
 , A. D. 18—. O H L, 
 
 Kotary Public Co., Mich. 
 
 An affidavit can not be sworn to before the solicitor of 
 ! record of either of the parties. (_/) 
 
 The oath administered is, "you do solemnly swear that the 
 contents of this affidavit by you subscribed are true, so help 
 you God." 
 
 The affidavit may be sworn to before any justice, judge, or 
 clerk of any court of, record^ circuit court commissioner, 
 notary public, or justice of the peace, or any register. (^) 
 
 In cases where by law the affidavit of any person residing 
 in another State of the United States, or in any foreign 
 country is required, or may be received in judicial proceed- 
 ings in this State, to entitle the same to be read, it must be 
 authenticated as follows: 
 
 First. It must be certified by some judge of a court having 
 
 (a) King v. Harrington, 14 Mich. 532. 
 (6) ArnoU v. 'Nye, 11 Mich. 456. 
 (c) Chancery Rule 67. 
 
 {S) Cooh V. Staats, 18 Barb. 407; Lane v. Moss, 6 How. 394; Wait's Law 
 ^d Practice, 147. 
 
 (e) Smart v. Hone, 3 Mich. 490. 
 
 (/) Laws 1877, p. 3. 
 
 (g) Comp. L. 1871, § 5964. 
 
720 MOTIONS, ORDERS AND AFFIDAVITS. 
 
 Affidavits — Jurat to Bill, Sworn to by Solicitor. 
 
 a seal, to have been taken and subscribed before him, specify- 
 inw the time and place where taken. 
 
 Second. The genuineness of the signature of such judge, 
 the existence of the court, and the fact that such judge is a 
 member thereof, must be certified by the clerk of the court, 
 under the seal thereof; or, > 
 
 Third. If such affidarit be taken in any other of the United 
 States, or any Territory thereof, it niay be taken before a com- 
 missioner duly appointed and commissioned by the governor 
 of this State to take affidavits to be used therein, or before any 
 notary public or justice of the peace authorized by the laws of 
 such State to administer oaths therein. The signature of 
 such notary public or justice of the peace, and the fact that at 
 the time of the taking of such affidavit, the person before 
 whom the same was taken was such notary public or justice 
 of the peace, must be certified by the clerk of any court of 
 record in tiie county where such affidavit shall be taken, under 
 the seal of the court, [a) 
 
 For form of jurat to bill of complaint or petition, see page 49. 
 
 No. 263. Jwrat to hill, sworn to hy solicitor. 
 
 State of Michigan, ] 
 
 County of . ) 
 
 On this day of , A. D. 18 — , before me personally 
 
 appeared II C B, and made oath that he is the agent and so- 
 licitor for — — , the complainant in the foregoing bill of com- 
 plaint, for the purpose of filing said bill and commencing and 
 prosecuting said cause; that he has read said bill of complaint 
 and knows the contents of the same; that he has information 
 as to all the matters stated in said bill, and from such infor- 
 mation believes such matters to be truly stated therein, and 
 that sucli bill is true; that all matters in said bill stated posi- 
 tively and not on information or belief, are true, to his knowl- 
 edge, and that all matters therein stated on information or 
 belief, he is informed and believes are true, and that the com- 
 plainant is not now in this State, but is now in the State of 
 JS'ew York. L IST B, 
 
 Notary Public, County, Mich. 
 
 (a) Laws 1879, p. 145. 
 
TRANSFER OF CAUSES. 721 
 
 Application for — Hearing of same. 
 
 CHAPTER XLV. 
 
 TRANSFEE OF CAUSES. 
 
 That wlienever any civil suit or proceeding shall be pend- 
 ing in any circuit court in this State, either on the law or 
 equity side of said court, in which the judge of said court 
 shall be interested as a party, or as a member of any corpora- 
 tion which is a party to said suit, or has heretofbre been 
 consulted or employed as counsel in the subject-matter to be 
 litigated in said suit, or in which he would be excluded from 
 sitting as a juror by reason of consanguinity or affinity to 
 any party to said suit, the same may be transferred to some 
 other circuit court in the manner provided by this act. (a) 
 
 Application for. — Any party desiring to transfer any such 
 suit or proceeding as is hereinbefore mentioned, may apply to 
 a circuit court commissioner of the county where said suit is 
 pending, or to the judge of any adjoining circuit, who is not 
 within the disqualifications mentioned in the first section of 
 this act, for an order to transfer such suit. Such application 
 shall be in writing, and shall set forth the grounds specifically 
 for such transfer. The parties to any such snit may, by stipu- 
 lation in writing, consent to the transfer of such suit or pro- 
 ceeding without any application to the judge or commis- 
 sioner; in which case the stipulation shall have the same 
 efiect as an order duly made for such transfer under the pro- 
 visions of this act. (5) 
 
 Hearing of same. — On receiving such application, the 
 commissioner or judge shall appoint a time and place of hear- 
 ing the same, and shall from time to time, as may be neces- 
 
 (a) Comp. L. 1871, § 4971. 
 
 (b) Comp. L. 1871, § 4972. 
 
 46 
 
722 TRANSFER OF CAUSES. 
 
 Where Transferred — Filing Order. 
 
 sary, direct tlie manner in which notice of such hearing shall 
 be given to all parties interested in snch application, (a) 
 
 On the da}- ajtpointed for such liearing, or on some other 
 day to which said hearing maybe adjourned, when it shall ap- 
 pear that the notice of such hearing has been duly given, the 
 commissioner or judge shall proceed to hear and determine 
 the application for such transfer, and for this purpose may 
 issue subpoenas for witnesses, and require their attendance as 
 in other cases, and he shall hear the proofs and allegations of 
 the parties touching the subject of the application before him, 
 and if he shall be satisfied that the judge of the circuit court 
 where such suit is pending is disqualified to sit in said cause 
 within the intent and meaning of the first section of this act, 
 he shall grant an order for the transfer of said cause or pro- 
 ceeding to the circuit court of some other county, which county 
 shall be specified in said order, (b) 
 
 Where t'ransfert'ed. — If any party, or the attorney or solic- 
 itor of record of any party, shall be a resident of any county 
 in this State otlier than the county in which said suit or pro- 
 ceeding is pending, and the judge of the circuit court 'of such 
 other county shall not be disqualified to sit within the pro- 
 visions of the first section of this act, the said suit or proceed- 
 ing shall be transferred to the circuit court of the county in 
 which the party, attorney or solicitor, or one of them, resides, 
 unless the parties thereto shall, by stipulation, otherwise 
 agree; and in case of such agreement, the order on such trans- 
 fer shall be in accordance therewith, (c) 
 
 Filing order. — On filing the order of the commissioner or 
 judge, granted as aforesaid, in which the proceedings before 
 said commissioner or judge shall be briefly recited, with the 
 clerk or register of the court to which said suit or proceeding 
 is by said order directed to be transferred, the said court shall 
 
 («) Comp. L. 1871, § 4973. 
 (6) Comp. L. 1871, § 4974. 
 (c) Comp. L. 1871, §4975. 
 
TRANSFER OF CAUSES. 723 
 
 Papers to be Transferred — ^Fee of Clerk. 
 
 liave jurisdiction of the same to the same .extent as if said 
 cause or proceeding had been legally commenced in said court, 
 and may grant such order as may be necessary to procure the 
 transfer of the existing files and orders in said cause or pro- 
 ceeding to said court, and to cause due notice of such transfer 
 to be made, (a) 
 
 Papers to ie transferred. — Upon delivering to the clerk or 
 register of the court where said cause or proceeding was pend- 
 ing . before said transfer, a copy of said order of transfer duly 
 certified by the clerk or register of the court in which said order 
 shall be filed, the said clerk or register, to whom said certified 
 copy shall be delivered, shall attach together the originals of all 
 the papers filed in said suit or proceeding, and shall make true 
 copies of all the orders made therein, and which are entered 
 upon books of record in said court, and shall transmit the 
 same,, certified under his hand and seal to be the originals of 
 such files and true copies of such orders, to the clerk or regis- 
 ter of the court in which said order of transfer shall have been 
 filed; which files and copies, when so filed and deposited in 
 the office of the clerk or register to whom said transfer is to 
 be made, shall have the same force and effect in all respects, 
 and shall be subject to the rules and orders of said court, as 
 other original proceedings therein, (b) 
 
 '■■ Fees of clerk. — The clerk or register, who shall be required 
 under the provisions of this act to transmit the files and 
 orders in any cause or proceeding, as herein provided, shall 
 be entitled to six cents per folio for all copies of orders and 
 proceedings which shall be necessarily made, and one dollar 
 in addition thereto, which shall be in full for all services ren- 
 dered under this act. (e) 
 
 (»)Comp. L. 1871, §4976. 
 [V) Comp. L. 1871, § 4977. 
 (c) Comp. L. 1871, § 4978. 
 
724 CIECUIT COURT COMMISSIONERS. 
 
 Powers of. 
 
 CHAPTEE XLYI. 
 
 ciecuit cottkt c0mmissi0nee8. 
 
 Seciion 1. Powers op. 
 
 2. When other Commissionbks mat Act. 
 
 3. Proceedings before. 
 
 , 4. Appeal from Order of Commissiomers. 
 
 SECTION I. 
 
 POWERS OF. 
 
 Circuit court commissioners hold their respective offices 
 for two years. They are required, at the time of their elec- 
 tion, to be attorneys and counselors-at-law of the Supreme 
 Court, (a) 
 
 "We have already, under the various chapters of this work, 
 considered many of the powers of commissioners relative to 
 chancery causes, and it only remains for us now to mention 
 some that have not been particularly spoken of, and to call 
 attention to a few facts that are of value in actual practice. 
 
 The powers of commissioners in chancery cases within their 
 respective counties, are the same as may be properly exercised 
 by a circuit judge at chambers, subject to the restrictions pre- 
 scribed by the Supreme Court. We have already referred 
 to these restrictions. (5) Bouvier says, that the power of a 
 judge at cliambers, is that of a judge out of court, in relation 
 to the proceedings before his court. The powers of a judge 
 at chambers refer to acts done out of court in a cause pending 
 in court, or judicial acts which a circuit judge is authorized by 
 statute to do out of court. 
 
 But where any power is given in express terms by any stat- 
 ute to a circuit judge, or to circuit judges, without naming 
 
 (a) Laws 1881, p. 242. 
 (6) Chancery Rule ni. 
 
CIRCUIT COURT COMMISSIONERS. 725 
 
 Commissioner to act as Master. 
 
 circuit court commissioners in such statute, such commission- 
 ers will not be authorized to exercise such powers, {a) 
 
 Commissioner to act as master. — Commissioners within 
 their counties are authorized to discharge all such duties as 
 have heretofore been performed by masters in chancery in 
 this State, according to the practice in chancery proceedings, 
 and all such other powers as shall be conferred upon them by 
 the several circuit courts witliin their jurisdiction, and under 
 tlie orders of which they may respectively act. (5) 
 
 The general duties of a master were to take accounts and 
 make computations; to make inquiries and report facts ; to 
 perform special ministerial acts directed by the court, such as 
 the sale of real estate, and acts of that general nature, and 
 the performance of duties prescribed by statute, (e) 
 
 Each commissioner may now perform the duties of in- 
 junction master, {d) Whenever he refuses an injunction, he 
 must indorse his refusal upon the application, or bill of com- 
 plaint, as the case may be. {e) As we have seen, an ap- 
 plication refused in whole or in part, or granted conditionally, 
 or upon terms by any Justice of the Supreme Court, circuit 
 judge, or circuit court commissioner, can not be considered by 
 any other commissioner. (/") An order by one commissioner 
 can not be affected by the order of another, when the commis- 
 sioner making the first order was competent to act. 
 
 Every commissioner is entitled to all the records and files 
 pertaining to the office of his predecessor, and to suits or pro- 
 ceedings pending and undetermined before his predecessor, 
 and is authorized to hear, try, determine and dispose of any 
 undetermined suit or proceeding, and fully to conclude the 
 same, and to enforce its determination in the same manner, 
 
 («) Laws 1881, p. 242. 
 
 (6) Laws 1881, p. 242. 
 
 (c) Hoffman's Master, 11; 1 Barb. Ch. Pr. 469. 
 
 (i)Liws 1831, p. 244. 
 
 (e) Laws 1881, 244. 
 
 (/) Laws 1881, p. 213; Rules 111, 112. 
 
726 CIRCUIT COURT COMMISSIONERS. 
 
 When anotlier Commissioner may Act — Proceedings before Commissioner. 
 
 and by the like process, as if such suit or proceeding had been 
 originally commenced before him; and also to issue all proper 
 and suitable processes for enforcing any judgment or deter- 
 mination of his predecessor or predecessors, (a) 
 
 .SECTION II. 
 
 WHEN ANOTHER OOMMISSIONEE MAT ACT. 
 
 When there is no commissioner in the county legally qual- 
 ified to perform the duties required by law, by reason of inter- 
 est, connection with the matter in controversy, or of any other 
 cause, the same may be performed by any qualified commis- 
 sioner of an adjoining county. But before a commissioner of 
 an adjoining county enters upon the performance of such du- 
 ties, proof must be made and presented to him by affidavit, 
 that there is no commissioner of the proper county compe- 
 tent and qualified to discharge such duties; and such affidavit 
 must state the ground of such disqualification. Such proof 
 must in all cases accompany the acts, and form part of the 
 proceedings of the commissioner so discharging such du- 
 ties, (b) 
 
 If the duties pertain to a matter, cause or proceeding pend- 
 ing in any circuit court, they may be performed by a commis- 
 sioner specially appointed for that purpose by a judge of such 
 court; or the parties interested may stipulate tliat any notary 
 public who is an attorney of the Supreme Court may act. (c) 
 
 SECTION III. 
 
 PEOCEEDINGS BEFORE COMMISSIONEES. 
 
 We have already considered the proceedings before commis- 
 sioners, in taking testimony and upon reference. 
 
 It is the duty of every commissioner to keep in his office a 
 
 (o) Laws 1881, p. 244. 
 (6) Laws 1881, p. 245. 
 (c) Laws 1881, p. 245; Chandler v. Nash, 5 Mich. 409. 
 
CIRCUIT COURT COMMISSIONERS. 727 
 
 Appeal from Order of Commissioner. 
 
 register in which he shall enter the title of each cause or pro- 
 ceeding in which he shall make any order, and a complete 
 raemorandum of his doings therein; and he shall tile with the 
 register all orders made by him, together with all papers on 
 which they are based immediately upon making such or- 
 der. («) 
 
 Taking accounts. — All parties accounting before a commis- 
 sioner, must bring in their accounts in the form of debtor and 
 creditor, ahd any of the other parties who shall not be satisfied 
 with the accounts so brought in, shall be at liberty to examine 
 the accounting party upon interrogatories, as the commission- 
 er may direct. On any reference to take or state an account, 
 the commissioner shall be at liberty to allow interest as shall 
 be just and equitable, without any special direction for tliat 
 purpose, unless a contrary direction is contained in the order 
 of reference. And every charge, discharge or state of facts, 
 brought in before a commissioner, shall be verified by oath as 
 true, either positively or upon information and belief (5) 
 
 The proper course on accounting is for parties to appear be- 
 fore a commissioner with charge and discharge accounts, and 
 after a full hearing before him, and report by him, to file ex- 
 ceptions to his report, and bring the case to a hearing upon 
 them. The circuit judge has power to hear a case of account- 
 ing without reference to a commissioner, but when lie does so 
 he proceeds as a commissioner would, and the parties should 
 make their complaints of his action in such form that, if the 
 case is appealed, the precise matter in controversy will be in- 
 dicated by the record, (c) 
 
 SECTION IV. 
 
 APPEAL FEOM OKDEE OF COMMISSIONEE. 
 
 Any person conceiving himself aggrieved by any order made 
 by any circuit court commissioner, in any suit in chancery, 
 
 («) Chancery Rule 114. 
 (6) Chancery Rule 77. 
 (c) Barnabee v. Beckley, 43 Mich. 613. See on this subject, Barb. Ch. Pr. 
 
728 CIRCUIT COURT COMMISSIONERS. 
 
 Appeal from Order of Commissioner. 
 
 may appeal therefrom to the circuit court of the county in 
 which such suit is pending: Provided (1) that such appeal 
 shall be claimed and enteted within fifteen days from the 
 time of making such order; and (2) that the appellant shall, 
 within that time execute a bond to the appellee in such penal 
 sum, not, less than one hundred dollars, as the commissioner 
 shall prescribe, with sufficient surety, to be approved by the 
 commissioner, conditioned to pay, satisfy and perform the or- 
 der which may by the circuit court be made in the prem- 
 ises, and to pay all costs in case the order appealed from 
 shall be affirmed. But no such appeal shall operate as a stay 
 of proceedings, unless a special order to that effect shall be 
 made by the circuit judge or by such circuit court commis- 
 sioner on proper cause shown, {a) 
 
 The appeal bond mentioned in the preceding rule, shall be 
 filed with the circuit court commissioner approving the same, 
 and shall be returned with the appeal papers. ( h) 
 
 It shall be the duty of the appellant, under these rules, to 
 file with the circuit court commissioner, within the time above 
 limited for claiming and entering his appeal, his reasons for 
 such appeal; whereupon, it shall be the duty of such com- 
 missioner, within twenty days thereafter, to transmit to the 
 clerk of the circuit court said bond, and all papers upon which 
 the motion or proceeding may have been founded, or which 
 may have been used on such motion or proceeding, unless al- 
 ready so filed, certified by him, or, in case the original plead- 
 ings or files shall have been used, he shall certify such fact to 
 the court, with a description of the original papers so used, (c) 
 
 (a) Chancery Rule 115. 
 (6) Chancery Rule 116. 
 
 (c) As to fees of commissioners, see Chancery Rule 118, Compiled Laws, 
 section 7434; and Laws of 1877, page 12, section 7. 
 
STATDTORT MODE OF REVIVOR. 729 
 
 When Proper. 
 
 CHAPTEE XLYIL 
 
 BTATITTOKT MODE OF EBVIVOB. 
 
 Section 1. When Pkopeb. 
 2. Pkoceedings. 
 
 SECTION I. 
 
 WHEN PEOPER. 
 
 Suits are revived by a bill of revivor, or by proceedings tin- 
 der the statute. The first mode we have already fully con- 
 sidered, (a) We now call attention to the statute and the steps 
 to be thereunder taken. 
 
 Abatement is either to the suit or the party. The suit 
 abates, when from the happening of some event, there is no 
 longer any person before the court, by or against whom the 
 proceeding can be carried forward. Abatement to a party, is 
 when the interest or liability having ceased, it becomes un- 
 necessary to have such party before the court, (h) In the 
 former case the suit must be revived. If on the death of a 
 party, the cause of action survives to others, so that a valid 
 decree can be made against tiiem, the suit does not abate as 
 to the survivors, but upon satisfactory suggestion to the court 
 the same may proceed for or against the survivors. (<?) The 
 death ot a party in a divorce suit, (d) 
 
 At common law, the death of a party pending a real action, 
 abates it. His right descends to his heirs, against whom a 
 new cause of action arises, {e) 
 
 (a) Ante, page 239. 
 
 (b) Ante, pages, 239, 240; 1 Barb. Ch. Pr. 675. 
 
 (c) Cgmp. L. 1871, § 5100. 
 
 (d) Zoellner v Zoellner, 46 Mich. 
 
 (c) People V. St. Clair Ct. Judge, 40 Mich. 351. 
 
730 STATUTORY MODE OF REVIVOR. 
 
 Proceedings. 
 
 When one or more complainants or defendants die, and the 
 cause of action shall not survive, the suit only abates as to 
 the person or persons so dying, and the surviving parties may 
 proceed without reviving the suit. (a) The statutory remedy 
 is confined to suits that have abated by reason of the death 
 of the party only, (b) 
 
 SECTION II. 
 
 PKOCEEDINGS. 
 
 No bill of revivor, or supplemental bill in the nature of a 
 bill of revivor, shall be necessary to revive a suit against the 
 representatives of a deceased defendant, or other person or 
 persons interested in the subject of such suit; but the court 
 may, by order, direct the same to stand revived upon the peti- 
 tion of the complainant, (c) 
 
 "When a suit is revived by an administrator, proof of a par- 
 ty's death and the appointment of the administrator should be 
 presented to the court by afiidavit, and placed on file, (d) 
 
 A copy of the order by which the court directs the suit to 
 stand revived upon the petition of the complainant, shall be 
 served on the representative or otliei' person or persons interest- 
 ed, as aforesaid, against whom the revivor is ordered, if residents 
 of the State; but if not residents of this State, then an order 
 of publication of notice may be had from the proper court or 
 officer as to the said petition, to revive in the same manner, 
 and be published with the same efl'ect, as is now provided in 
 relation to absent, concealed or non-resident defendants in 
 original bills. In the case of personal service of such order, 
 the persons so served shall be allowed sixty days after such 
 service, to appear, answer, or disclaim, (e) 
 
 (a) Comp L. 1871, § 5101; Leggett v. Dubois, 2 Paige, 213. 
 (6) Comp. L. 1871, §§ 5100, 5114. 
 
 (c) Comp. L. 1871, § 5102. 
 
 {d] Viekery v. Beir, 16 Mich, 50; Webster v. Bailei/, 31 Mich, 36; Webster 
 V. Hitchcock, 11 Mich. 56. 
 (?) Comp. L 1871, § 5103. 
 
STATUTORY MODE OF REVIVOR. 731 
 
 Proceedings. 
 
 If they shall not, in the case of personal service, within 
 that time, or in case of publication, within the time prescribed 
 bv the order of publication, appear and answer, or disclaim, 
 the court, upon due proof of the service of such order or pub- 
 lication of notice of the 'same, may cause their appearande to 
 be entered; and in such case tlie answer of the deceased party 
 shall be deemed the answer of such representatives, or other 
 person or persons as aforesaid; and after such order of appear- 
 ance, the same proceedings may be had and with the like effect 
 as to absent or non-resident representatives, or any other per- 
 son or persons aforesaid, so brought in on publication of 
 notice, as is now provided as to representatives of a deceased 
 party brought in on personal service of an order of revivor, (a) 
 
 If no answer shall have been filed by the deceased party, 
 the court may, in its discretion, order the bill to be taken as 
 confessed against such representatives, or compel them to 
 answer, by attachment or otherwise, (fi) 
 
 Jf the deceased party shall have answered, and the com- 
 plainant deem it necessary to obtain a further answer from his 
 representatives, the petition for revival shall state the matters 
 as to which a further answer is required, and a copy of such 
 petition shall be annexed to a copy of the order to be served 
 on such representatives, (o) 
 
 In such case, if the representatives shall not appear and 
 put in such further answer or disclaim, within eighty days, 
 or such further time as the court may allow, after the service 
 of the petition and order, upon due proof of such service, the 
 court may order the petition to be taken as confessed, or com- 
 pel such further answer by attachment or otherwise, (d) 
 
 When the complainant shall die, and the cause of action 
 shall not survive, his representatives may, on affidavit of such 
 death, and on motion in open court, be made complainants in 
 the suit, and be permitted to amend the bill, if necessary, (e) 
 
 (a) Comp. L. 1871, § 5104. 
 {V) Comp. L. 1871, § 5105. 
 (c) Comp. L. 1871, § 5106. 
 • (d) Comp. L. 1871, § 5107. 
 (e) Comp. L. 1871, § 5108. 
 
732 STATUTORY MODE OF REVIVOR. 
 
 Proceedings. 
 
 The defendant shall be compelled to answer such amended 
 bill, and the cause shall proceed to issue, and a hearing, as in 
 ordinary cases, {a) 
 
 When the representatives shall not cause themselves to be 
 made complainants', within eighty days after the death of the 
 deceased complainant, the surviving complainant may pro- 
 ceed to make them defendants in tlie suit, as in cases where 
 the representatives of deceased defendants are made parties. (5) 
 
 If there be no surviving complainant, or he shall neglect 
 or refuse to proceed against the representatives of the de- 
 ceased complainant as defendants, the court, upon petition 
 of the original defendants, may order such representatives to 
 show cause at a certain day named in such order, why the 
 suit should not stand revived in their names, or the bill be 
 dismissed as far as the interests of such representatives are 
 concerned, (c) 
 
 If no such cause be then shown, the court, upon proof of 
 the reasonable service of a copy of the order upon such rep- 
 resentatives, may order the revival of the suit in their names, 
 or the dismissal of the bill with costs or otherwise, (d) 
 
 If a defendant shall die, and the cause of action shall not 
 survive, and the complainant shall neglect or refuse to procure 
 an oi'der for the revival of the suit, tbe court may order it 
 to stand revived, upon the petition of a surviving defendant, 
 against the representatives of the deceased party, (e) 
 
 In such case, the surviving defendant may proceed against 
 such representatives in the same manner as a complainant, 
 to compel them to appear, abide the answer of the deceased 
 party, or answer, if an answer be required, or to have the bill, 
 or his petition, taken as confessed against them; and the 
 court may, in its discretion, stay the suit as against him until 
 such proceedings shall have been had. {/) 
 
 (a) Comp. L. 1871, § 5109. 
 
 (b) Comp. L. 1871, § 5110. 
 
 (c) Comp. L. 1871, § 5111. 
 
 (d) Comp. L. 1871, § 5112. 
 
 (e) Comp. L. 1871, § 5113. 
 (f)Comp. L. 1871, §5114. 
 
COSTS. 733 
 
 When Costs are Awarded. 
 
 CHAPTER XLYIII. 
 
 COSTS. 
 
 Section 1. When Awarded. 
 2. Taxation of. 
 
 SECTION I. 
 
 WHEN COSTS AEE AWAEDBD. 
 
 Costs in equity are entirely in the discretion of the court, 
 to be awarded or withheld, as the court, in the exercise of a 
 sound discretion based on certain fixed principles, deems 
 just, {a) It is provided by statute, that if the complainant 
 dismisses his bill or petition, or if the same is dismissed for want 
 of prosecution, the defendant shall recover his costs, except in 
 those cases where, according to the practice of the court, costs 
 would not be awarded against such complainant or petitioner 
 upon a decree rendered on hearing of the cause. (5) in all 
 other cases, where no special provision is made, the costs are 
 _paid by such party as the court directs, (c) 
 
 Parties are entitled to costs who are improperly made de- 
 fendants, {d) Costs will not be awarded against a mere nom- 
 inal party, (e) They will not always be awarded against in- 
 fants. (/") Where a subsequent purchaser in a foreclosure 
 
 (a) Comp. R. 1871, § 7336; Comstock v. Comstock, 24 Mich. 30; Van 
 Wert V. Chidester, 31 Mich. 209. 
 
 (6) Comp. L. 1871, § 7385; Daniels v. Eisenlord, 10 Mich. 454; Meth. 
 Ch. T. Clark, 41 Mich. 731. 
 
 (c) Comp. L. 1871, § 7386. 
 
 (d) Gregory v. Stanton, 12 Mich. 62; Bamsdell v. Eaton, 12 Mich. 117; 
 Avery V. Payne, 12 Mich. 540; StickneyY. Parmenter, 35 Mich. 237. 
 
 (e) Teed v. Marvin, 41 Mich. 216. 
 (/) Smith y. Smith, 13 Mich. 259. 
 
734 COSTS. 
 
 When Costs are Awarded. 
 
 suit is made a party, and contests the amount due, a decree 
 for costs may be rendered against him if the mortgaged prem- 
 ises prove insufficient, (a) Where a party is compelled to 
 come into court through the improper conduct of the defend- 
 ant, and through no fault of his own, he is entitled to costs.(S) 
 "Wlien both parties are in fault, each will be compelled to pay 
 l)is own costs, (c) 
 
 Where there are several defendants entitled to costs, the 
 costs must be apportioned amongst them as the court may 
 deem proper, {d) 
 
 The following costs are allowed to the prevailing party. In 
 all cases determined by final decree, or upon pleadings and 
 proofs, thirty dollars. In all cases determined by final decree 
 on bill and answer, plea or demurrer, twenty dollars. In 
 all cases where decree is taken on the bill as confessed, fifteen 
 dollars. Upon all special motions, such sum, not exceeding 
 ten dollars, as the court shall deem just. When a bill is dis 
 missed for default at the hearing, or for want of prosecution, 
 or voluntarily by the complainant, the defendant shall be en- 
 titled to the same costs as if the cause had been heard; and 
 when the bill is dismissed upon payment of the claim, a per- 
 formance of the relief sought, before decree, the complainant 
 shall^e entitled to the'same costs as if the case had been heard. 
 If such payment or performance is made before plea, demur- 
 rer or answer, the costs shall be as on bill taken ^to confesso; 
 if after any pleading is put in, and before proofs, they shall 
 be as on a hearing, upon pleadings; and, if proofs are taken, 
 the costs shall be as on a hearing upon pleadings and proofs. 
 In divorce cases, the costs shall be under the direction of the 
 court, (e) 
 
 (a) Ireland, v. Woolman, 15 Mich. 253. 
 (6) Ward v. Jewett, Walk. Ch. 45. 
 (c) Foster v. Malone, 45 Mich. 255. 
 {d) Chancery Rule 90. 
 (e) Chancery Rule 90. 
 
COSTS. 735 
 
 Taxation of Costs— Who may Tax— Notice of Taxation — The Bill of Costs. 
 
 SECTION II. 
 
 TAXATION OF COSTS. 
 
 Who may tax. — Costs in the several circuit and the munici- 
 pal courts of record having civil jurisdiction, may be taxed by 
 any officer authorized to tax costs in the Supreme Court, by 
 circuit court commissioners, or the clerks of the said circuit 
 and municipal courts respectively, {a) But no officer can tax 
 his own costs. (5) 
 
 Notice of taxation. — Wliere a party has appeared in a cause, 
 he is entitled to notice of taxation of costs of not less than 
 two days; but if service can not be had upon the solicitor 
 within that time by reason of his residence at a distance, one 
 day's additional time shall be allowed for each twenty miles 
 distance. But in no case need the notice be more than ten 
 days, (e) A taxation of costs without sucli notice is irregular, 
 and may be set aside, {d) The notice must be accompanied 
 by a copy of the bill proposed to be taxed, and the affidavits 
 to be read in support thereof. 
 
 The Mil of costs. — !N"o matter how many complainants there 
 may be, there can be but one bill of costs. The same rule 
 applies to defendants appearing by the same solicitor, except 
 where they are entitled to sever in their defense, when they 
 may charge for separate answers, {e) 
 
 In a bill of costs offered for taxation by or on behalf of any 
 solicitor, or of any party who prosecutes and defends by a so- 
 licitor, or by or on behalf of any officer of the court who pros- , 
 ecutes or defends in person, the several items of disbursements 
 and of the fees of officers of the court, shall be particularly 
 specified therein and not charged in gross, or they shall be dis- 
 
 (a) Comp. L. 1871, § 7420, Amended L4ws 1889, p. 44; Chancery Rule 89. 
 (6) Chancery Rule 90. 
 
 (c) Laws 1879, p. 44; Supreme Court Rule 51; Chancery Rule 90 and 61. 
 
 (d) Hoffman v. Skinner, 5 Paige, 526. 
 
 (e) 3 Daniels Ch. Pr. 1448. 
 
706 COSTS. I 
 
 Taxation of Costs — The Bill of Costs. 
 
 allowed on taxation; and when witness' fees are charged, the 
 names of the witnesses shall be specified and the number of 
 days' travel and attendance of each, (a) Under this rule reg- 
 ister's fees mnst be itemized. ( J ) 
 
 Where there are charges in any bill of costs for the attend- 
 ance of any witness, or for copies or exemplifications of docu- 
 ments or papers, or for any other disbursements, except to 
 officers for services rendered, such charges for witnesses shall 
 not be taxed without an affidavit stating the distance they re- 
 spectively traveled, and the days they actually attended; and 
 such charges for copies shall not be taxed without an affidavit 
 that such copies were actually and necessarily used, or neces- 
 sarily obtained for use; nor shall such disbursements be allowed 
 without an affidavit specifying the items thereof particularly, 
 nor unless they appear to have been necessary and reasonable 
 in amount. ( o ) 
 
 "When in any case a party is entitled to charge witness fees, 
 and his bill of costs shall contain an item or items for the at- 
 tendance and travel of the party himself, as a witness, such 
 item or items shall be taxed upon affidavit that the party was 
 in attendance upon the court for the time charged, for the pur- 
 pose of being sworn as a witness, and not to assist in the 
 management of the cause, and that the travel was for the pur- 
 pose-of giving his evidence, (d) 
 
 Costs may be taxed for witnesses who attend in good faith, 
 although they are not sworn, if, as the case appeared when 
 they were summoned orretained, there was a necessity for their 
 attendance, and they were called no sooner and kept no longer 
 than the apparent necessity existed. The affidavit to justify 
 their taxation must clearly show their materiality and neces- 
 sity, {e) 
 
 (a) Chancery Rule 90. 
 
 ( 6 ) Diclcinson V. Seaver, 44 Mich. 625. 
 
 (c) Laws 1881, p. 394; Maxwell -7. Bridge Co., 42 Mich. 67; Dickinson 
 V. S aver, 44 Mich. 624; see, aho,* McDonald v. McDonald, 45 Mich. 44. 
 
 {d) Ibid. 
 
 (e) Gilbert v. Kennedy, 22 Mich. 5; Duncombe y. Richards, 47 Mich. 
 (Jany. Term, 1882.) 
 
COSTS. 787 
 
 Taxation of Costs — AfSdavits — Duty of Taxing Officer — Re-taxation. 
 
 Affidavits. — The affidavit of the solicitor or the officer who 
 prosecutes or defends, must be annexed to the bill before it is 
 taxed, stating, according to the best of his knowledge and be- 
 lief, that the disbursements charged have been actually and 
 necessarily incurred and paid, {a) If the adverse party objects 
 to the allowance of any items charged, he must produce affida- 
 vits or other evidence in opposition thereto, or he will not be 
 allowed to use such affidavits before the court on motion for 
 re-taxation. (5) 
 
 Where it is stipulated that several suits against the same 
 defendant, involving the same question and ready for hearing, 
 should abide the decision of one, a solicitor's fee may be taxed 
 in each case, (c) 
 
 Duty of taxing officer. — Every officer authorized to tax costs 
 in any court for services rendered in any proceeding authorized 
 by law, must examine the bills presented to him for taxation, 
 whether such taxation be opposed or not, and must be satis- 
 fied that the items charged in such bill are correct and legal; 
 and shall strike out all charges for services which, in his judg- 
 ment, were not necessary to be performed, (d) 
 
 The taxed bill of costs is a part of the files of the register's 
 office. 
 
 In taxing costs, all the costs are usually taxed by the regis- 
 ter, except his fees, and the parties then go before a circuit 
 court commissioner, who taxes the register's fees. 
 
 Re-taxation. — A party desiring a re-taxation of costs, 
 should bring the matter before the court by motion, or peti- 
 tion, setting forth the items alleged to have been erroneously 
 allowed by the taxing officer. If there was an irregularity in 
 
 (a) Chancery Rule 90. 
 (6) Wendell v. Lewis, 8 Paige, 613. 
 
 (c) Holbrook v. Winsor, 25 Mich. 211; Chapaton v. Butler, 18 Mich. 
 337. 
 {d) Comp. L. 1871, § 7424. 
 
 47 
 
738 UOSTS. 
 
 Taxation of Costs — Bill of Costs. 
 
 tbe taxation, as want of notice, he must move to haye the 
 taxation set aside on that ground, {a) A re-taxation will not 
 he granted to a party guilty of gross negligence, through 
 delay, {h) Wliere a party fails to appear on taxation of costs, 
 and shows no excuse for such non-appearance, re- taxation will 
 not be granted, (c) 
 
 Unless the items of a bill of costs are objected to before the 
 taxing officer, they can not be considered on re-taxation, {d) 
 And a party on a motion for re-taxation, can not, unless he 
 show sufficient excuse for not so doing, use affidavits in sup- 
 port of his objections to the bill, that were not produced ou 
 the taxation, {e) 
 
 No. 26i. Bill of costs. 
 
 State of Michtgaij-. 
 
 The Circuit Court for the County of . In Chancery. 
 
 AB, 
 
 Complainant, 
 vs. 
 CD, 
 
 Defendant. 
 
 Solicitor's Fee by Enle. 
 
 Sheriff's Fees. 
 
 Register's Fees. 
 
 (a) Reeves v. Scully, Walk. Ch. 340. 
 (6) Hart v. Linsrlay, Walk. Ch. 72. 
 
 (c) Taylor v. Boardman, 16 Micli. 606. 
 
 (d) 2 Barb. Ch. Pr. 343. 
 («) 2 Barb. Ch. Pr. 343. 
 
COSTS. 
 
 739 
 
 Taxation of Costs — Bill of Costs. 
 
 Circuit Court Commissioner's Fees. 
 
 Printer's Bill (not included in above). 
 
 Eegister of Deeds (not included in above). 
 
 Witnesses' Fees. 
 
 MILES DAYS. 
 TRAVEL 
 
 County — ss. 
 
 Total, 
 
 I hereby tax the foregoing bill of costs 
 of dollars. 
 
 at the sum 
 
 ■ County — ss. 
 
 TFG, 
 
 Eegister in Chancery. 
 
 I hereby tax the costs of the register in chancery in the 
 foregoing entitled cause at the sum of dollars. 
 
 swo, 
 
 Circuit Court Commissioner for said County. 
 
 State of Michigan-, ) gg 
 
 County. ) 
 
 EMI, being duly sworn, doth depose .and say that he is 
 the of the solicitor for complainant in the within en- 
 titled cause; and that the several items of disbursements and 
 fees of officers of the court, charged in the foregoing bill of 
 costs, have been actually and necessarily incurred or paid, ac- 
 cording to his best information and belief. 
 Subscribed and sworn to before me, this ) 
 
 day of A. D. 18— j 
 
 JDB, 
 Notary Public Co., Mich. 
 
740 COSTS. 
 
 Taxation of Costs — Affidavit of Service of Notice of Taxation. 
 
 To K G S, Esq., 
 
 Solicitor for defendant. 
 Take notice, the above is a true and correct copy of com- 
 plainant's bill of costs in this cause, and of the aflBdavit of dis- 
 bursements required by rule. Application will be made to 
 
 tlie register of said court, at his office, on the day of 
 
 , A. D. 18 — , at • o'clock — M., to tax the same. 
 
 Dated at , A. D. 18— 
 
 Tours, etc. 
 
 EMI, 
 Solicitor for complainant. 
 
 Wo. 265. Affidavit of service of notice of taxation. 
 
 State of Michigan, ] 
 
 County of , j 
 
 EEL G being duly sworn, says that on the day of 
 
 A. D. 18 — , at o'clock — . M., he served a true 
 
 copy of the above bill of costs, with the affidavit and notice of 
 taxation, upon EGS, solicitor for defendant, by delivering the 
 same to him personally. 
 
 Sworn to and subscribed before me, this ) 
 
 day of , A. D. 18— ) 
 
 I^otary Public County, Mich. 
 
PRACTICE IN THE SUPREME COURT. 741 
 
 Jurisdiction of Supreme Court — ^Terms of Court. 
 
 CHAPTEE XLIX. 
 
 PKACTICE IN THE STTPEEME COUET. 
 
 Section 1. 
 2. 
 3. 
 4. 
 5. 
 6. 
 
 Jurisdiction op. 
 Appeals, when Allowed, 
 How Taken. 
 Motions. 
 
 Hearing and Decree. 
 Costs. 
 
 SECTION I. 
 
 
 5N OF S0PBEME OOUET. 
 
 
 Tile Supreme Court of Michigan sits in the capitol at Lan- 
 sing, and consists of the Chief Justice, and three associate Jus- 
 tices. The powers and duties appertaining to the office of 
 Chief Justice, devolve from time to time upon the judge of 
 that court, whose term of office soonest expires by its own 
 limitation, {a) The court has power to appoint its own 
 clerk. (5) 
 
 Terms of court. — ^Four terms of court are held annually, 
 commencing Tuesday after the first Monday of January, April, 
 June and October, of each year, which are called, respectivelj^, 
 the January, April, June and October terms of said court, (c) 
 The court is rec^uired bylaw to continue its session a sufficient 
 number of days at each term to hear all the causes ready for 
 argument. The statute also requires a speedy decision of 
 causes. The court has power to hold special or adjourned 
 terras of court. 
 
 (a) Compiled Laws, 1871, Chap. 174. 
 
 (b) Laws 1881. 
 
 (c) Laws 1875, p. 4. 
 
742 PRACTICE IN THE SUPREME COURT. 
 
 Jurisdiction of Supreme Court — Jurisdiction — What the Court Reviews. 
 
 Jv/nsdjiction. — In chancery matters, the Supreme Court has 
 appellate powers only, and it can not pass upon facts not con- 
 tained in the record as heard in the court below, {a) It can 
 not exercise original equity jurisdiction. (5) But it inquires 
 into the facts on the record and forms its own conclusions, (e) 
 and it has power to review in some way all final judgments. ((Z) 
 
 Upon any order or decree of the circuit court in chancery 
 being brought by appeal to the Supreme Court, that court will 
 examine all errors that may be assigned or found in such order 
 or decree, and will hear and determine such appeal and all 
 matters concerning the same. The court has power to reverse, 
 affirm or alter such decree or order, and to make such other 
 order or decree therein as shall be just, (e) 
 
 What the cowrt reviews. — On an appeal from a final decree, 
 the court will review all previous orders connected with the 
 decree, and affecting the merits. On an appeal from a final 
 order, the court will only review so much of the proceedings, 
 or such orders as are connected with the final order. {/) An 
 appeal takes up the entire record as a whole, upon all the 
 facts, with all the matters of discretion open for consideration 
 by the Supreme Court, precisely as they were in the court be- 
 low, as though the case had not been heard before; and the 
 court will make such order as should have been made by the 
 lower court. Yet, the orders of the lower court will not be 
 disturbed, unless it satisfactorily appears that they require 
 correction, {g) The Supreme Court will not, therefore, re- 
 view the rulings of the court below in matters of practice, 
 
 (a) Wrights. Dudley, 8 Mich. 115; Verplanch v. Hall, 21 Mich. 469. 
 
 (6) Bank of Mich.. v. Mies, Walk. Ch. 398; 1 Doug. 504;. Bailey v. De 
 Graff, 2 Doug. 169; Palmer v. Rich, 12 Mich. 414; Adams v. Field, 25 
 Mich. 16; King Y. Carpenter, 37 Mich. 366; Maxfieldr. Freeman, 39 Mich. 65. 
 
 (c) McCullough v. Day, 45 Mich. 554. 
 
 {d) Schwab v. Coots, 45 Mich. 463. 
 
 (e) Comp. L. 1871, § 5183. 
 
 (/) Benedict v. Thompson, 2 Doug. 299. 
 
 ig) Warner v. Whittaher, 6 Mich. 134; Oliver v. ShoemaTcer, 35 Mich. 
 464; Abhott v. Alsdorf, 19 Mich. 157; English v. Carney, 25 Mich. 178. 
 
PRACTICE IN THE SUPREME COURT, 743 
 
 Jurisdiction of Supreme Court — What the Court Reviews. 
 
 when those rulings do not aiFeet the merits of the cause, (a) 
 The appellant must convince the court, not only that the 
 court below was wrong, but also, that the error committed was 
 prejudicial to him. [b) Thus, [where one of several parties 
 appeals, he can not ask for a reversal of a decree, for errors in 
 no way aifecting him. (c) The Supreme Court must be sat- 
 isiied that a decree is wrong, before it will be reviewed, (d) 
 And no matter how erroneous the reasons may be that are 
 advanced by the court below, if the decree is correct, it will 
 not be disturbed, (e) 
 
 It being a general rule, that a commissioner's report, unless 
 excepted to, will be received as true, the Supreme Court on 
 appeal will not review or re-examine any part of a decree that 
 is based on such a report. (/") However, if an interlocutory 
 decree preceding a reference, decides the turning point in the 
 case, exceptions to the report are not necessary to obtain a 
 review. In such an instance, the determination of the court 
 and not the commissioner will be involved, and failure to ex- 
 cept to one, implies no acquiescence in the action of the 
 other, {g) In 'order to have them considered, formal objections 
 
 {a) Bailey X. De Graff, 2 Doug. 269; Morris v. Morris, 5 Mich. 171; 
 Kellogg v. Putnam, 11 Mich. 844; Haines v. Haines, 35 Mich. 188; 
 Johnson v. Shephard, 35 Mich. 115; Bilz v. Bilz, ,37 Mich. 116; Bennett v. 
 Nichols, 12 Mich. 22; Mich. Insurance Co. v. Whiitemore, 12 Mich. 311; 
 Detroit Fire <& Marine Ins. Co. v. Renz, 33 Mich. 298. 
 
 (J) Hess V. Final, 32 Mich. 515. 
 
 (c) Griggs v. Detroit <& Mil. R. R. Co., 10 Mich. 117; Dj/e v. Mann, 10 
 Mich. 291; Mich. Ins. Co. v. Whittemore, 12 Mich. 427; Martin v. McRey- 
 nolds, 6 Mich. 70; Warner v. Whittaher, 6 Mich. 133; Kellogg v. Putnam^ 
 11 Mich. 344; Campau v. Campau, 19 Mich. 116; Phillips v. Stanch, 20 
 Mich. 369; Continental Ins. Co. v. Horton, 28 Mich. 173; Davis y^ Bash, 
 28 Mich. 432; Richards y. Tozer, 27 Mich. 451; Hill v. Mitchell, 40 Mich. 
 390; Robertson v, GiUs, 38 Mich. 165; Mlis v. Spaulding, 39 Mich. 366; 
 Johnsomr. Shephard, 35 Mich. 115; Hess v. Final, 32 Mich. 515; Campau 
 V. Traub, 27 Mich. 215; McCurdy v. Clark, 27 Mich. 451. 
 
 (d) Sager v. Tupper, 42 Mich. 605. 
 (c) Orsmby v. Barr, 28 Mich. 80. 
 
 if) Eaton V. Truesdail, 40 Mich. 1; Tyler y. Simmons, 6 Paige, 127; 
 Slater \. Breese, 3Q Mich. 79; ButterfieM v. Beardsley, 28 Mich. 412; Suy 
 dam V. Duquindre, Walk. Ch. 23; Thome v. Hilliker, 12 Mich. 215. 
 
 (g) Eaton v. Truesdail, 40 Mich. 1 . 
 
744 PRACTICE IN THE SUPREME COURT. 
 
 Jurisdiction of Supreme Court — What the Court Reviews. 
 
 to a decree should be taken in the court below, (a) and unless 
 the objection insisted on upon appeal was presented by the 
 record in the court below, it will not be considered. So, ob- 
 jections not made in the lower court, and urged by a party 
 who has taken no appeal, will not be considered. (5) Where 
 no motion to suppress depositions is made in the circuit, and 
 no objections are there made to them, it is too late to raise the 
 objections in the Supreme Court, (p) And the Supreme Court 
 1 will not review, on appeal, questions in reference to the taxa- 
 ' tion of costs, unless the court below has first been required to 
 pass upon them, (d) A point not sufficiently raised by de- 
 murrer, can not, on appeal, be raised for the first time, {e) 
 
 If a party conceives himself aggrieved by an irregularity 
 in the proceedings of the circuit court, he should apply to 
 that court for relief^ upon a showing that he has sustained, or 
 will sustain, injury therefrom; and^if such application is de- 
 nied, to then appeal to the Supreme Court from the decision, {f) 
 
 It is a question how far the court can, on appeal from a 
 later order or decree, interfere with the effect of a prior order 
 not appealed from, {g) An appeal does not brihg up for re- 
 view, proceedings subsequent to the decree appealed from; (A) 
 but while a prior decree is pending, a subsequent decree made 
 in the court below, without a new hearing on proof, and in- 
 tended as additional to the prior one, is invalid, (i) A discre- 
 tionary order, not in itself appealable, will not be considered 
 collaterally unless it be a plain case of abuse of discretion. (/) 
 
 It is said that errors against an appellant on accounting, 
 
 {a) Wright v. Wright, 37 Mich. 55. 
 
 (6) Bundy v. Youmans, 44 Mich. 376; Barnabee v. Bechley, 43 Mich. 61S. 
 (c) Boocheimer v. Gunn, 24 Mich. 872. 
 (rf) Ahbott V. Mathews, 26 Mich. 178. 
 (e) Kellogg v. Hamilton, 43 Mich. 270. 
 (/) Kellogg v. Putnam, 11 Mich. 344. 
 
 ((/) Brown v. Branson, 35 Mich. 416; see Shepherd v. Bice, 38 Mich. 556; 
 Damouth v. Kloch, 28 Mich. 163. 
 
 {h) Kellogg v. Hamilton, 43 Mich. 269. 
 (/) Beal V. Chase. 31 Mich. 490. 
 [j) Haines v. Haines, 35 Mich. 138. 
 
PRACTICE IN THE SUPREME COURT. 745 
 
 Jurisdiction of Supreme Court — What the Court Reviews. 
 
 may be balanced by those in his favor. This is upon the 
 principle that the appeal brings np the whole record, and it 
 may be entirely reviewed by tl^e Supreme Court, and justice 
 done, {a) But a decree will not be changed in favor of a party 
 who does not appeal, even by way of damages for vexatious 
 appeal. (5) Where references in the record are made to ac- 
 count books that are not returned in full, and the record does 
 not contain a sufBcient transcript of them to enable the court 
 to form an intelligent opinion, the case will be remanded to 
 tlie lower coart, so that the record may be corrected and the 
 case presented in a proper light, (c) So a case will be re- 
 manded for proper proceedings when no regular accountinp^ 
 has been had. {(I) 'If questions of fact only are involved, and 
 the testimony is conflicting and evenly balanced, the decree 
 will not usually be reversed; {e) and in such a case, heard in 
 open court, the opinion of the circuit judge, who had an op- 
 portunity to observe the witnesses, will be given great 
 weight. (_/) If the pleadings are good in substance, all mat- 
 ter of form will be disregarded on appeal, (g) But if the alle- 
 gations of the hill do not entitle the complainant to any relief, 
 on an appeal by him, the bill wili generally be dismissed. (A) 
 
 The court will affirm a decree when it is equally divided. (/) 
 So it will, though the record is tiled, if the appellant does not 
 appear in person or by counsel, and tiles no brief, {j) Or where 
 he files no brief in accordance with the rule. Qc) 
 
 (ff) Grant V. M. (& M. Bank, Detroit, 35 Mich. 515; Robertson v. Gihbs. 
 38 Mich. 165. 
 
 (J) Heaih v. Waters. 40 Mich. 457; Foster v. Malone, 45 Mich. 255. 
 
 -(c) Lambert v. Griffith, 40 Mich. 174. 
 
 (i) Barnabee v. Becldeij. 43 Mich. 613. 
 , (e) Green v. Landon, 28 Mich. 221. 
 
 (/) Matter of Wool, 36 Mich. 299; Sager v. Tupper, 42 Mich. 605. 
 
 (ff) Dye V. Mann, 10 Mich. 291 ; Phillips v. Stanch, 20 Mich. 869. 
 
 (h) Hulburt v. Brita'n, 2 Doug. 191. 
 
 (!) Comp. L. 1871, § 4923; Marq. Houghton S Ontgn. R. R. v. Ta-ft, 
 28 Mich. 198; Blair v. Compton, 33 Mich. 414; Whiting v. Butler, 38 Mich. 
 616; Sands v. Finaii, 38 Mich. 616; Hoffman v. Harrington, 28 Mich. 91. 
 
 (i) Scott Y. Scott, 5 Mich. 249; Woodward v. Chester, 42 Mich 461. 
 
 (k) Supreme Court Rule 32; Sanborn y. Robinson, 22 Mich. 92; see, also, 
 BarnumY. Stone, 27 Mich. 332; Killam v. Axford, 39 Mich. 210. 
 
746 PRACTICE IN THE SUPREME COURT. 
 
 Appeal, wlien Allowed. 
 
 Jurisdictional defects may be sufficient to reverse a decree, 
 notwithstanding they are not pointed out on the argunient. (a) 
 Especially is this true, if the suit is brought by a public of- 
 ficer and tends to delay the enforcement of a law. (5) If the 
 court below commits errors affecting the rights of infants, the 
 decree will be reversed, even though no specific objection was 
 taken, (c) It has been held that a decree made without 
 proper notice to a defendant wh6- has appeared, will be re- 
 versedi {d) But there are exceptions to this rule, (e) Where 
 a party in the absence of fraud, mistake or surprise, has power 
 to apply to the court below for relief, and does not do so, the 
 Supreme Court will not arrest proceedings to aid him. (/") 
 
 SECTION II. 
 
 APPEAiS, WHEN ALLOWED. 
 
 The right of appeal being purely statutory, all the provis- 
 ions of the statute must be strictly complied with, (g) The 
 law allows any complainant or defendant who may think him- 
 self aggrieved by the decree or final order of a circuit court in 
 chancery in any cause, to appeal therefrom to the Supreme 
 Court, (k) 
 
 It therefore becomes essential at the outset of this section, 
 to determine, so far as possible, what decrees and orders are fi- 
 nal, and what are interlocutory. For, under the statute, one 
 class is appealable, and the other is non-appealable. There are 
 final decrees, and final orders, and there are interlocutory de- 
 
 (a) Fessenden v. Hill, 6 Mich. 242; Farrell v. Taylor, 12 Mich. 113; 
 Smith V. Smith, 13 Mich. 258; Younghlood v. Sexton, 32 Mich. 407. 
 
 (6) Younghlood v. Sexton, 32 Mich. 407. See, also, on jurisdicfion. Loch- 
 ^ood V. Moliter, 26 Mich. 444; Campbell v. Quackenbush, 33 Mich. 289. 
 
 (c) Smith V. Smith, 13 Mich. 258. 
 
 (d) Jenney v. O'Flynn, 5 Mich. 215. 
 
 (e) Evans v. Norris, 6 Mich. 70; Kellogg \. Putnam, 11 Mich. 344; Mich. 
 Ins. Co. Y. Whittemore, 12 Mich. 427. 
 
 (/) Campau v. Campau, 19 Mich. 130. 
 
 (g) Weed v. Lyon, Walk. Ch. 77; Maxfield v. Freeman, 39 Mich. 64. 
 
 [h) Laws 1871, § 5179; Caswell v. Comstock, 6 Mich. 391. 
 
PRACTICE IN THE SUPREME COURT. 747 
 
 Appeal, when Allowed — Orders not Pinal. 
 
 crees, and interlocutory orders. To give a satisfactory and 
 correct definition of a final order and of a decree that is appeal- 
 able, is hardly possible. A decree that finally adjudicates up- 
 on the matters in controversy is final. Under an interlocutory 
 decree some further steps are required to be taken to enable 
 the court to adjudicate and settle the rights of the parties. 
 Under a final decree a party obtains his right without any far- 
 ther adjudication upon the merits. But the decree to be final 
 need not disposd of all the merits. If any part of them are fi- 
 nally adjudicated, the decree is final, and it does not make any 
 difierence at what stage of the cause the decree is made. Fi- 
 nal orders are adjudications upon motions or other applica- 
 tions, not involving a hearing upon pleadings and proofs, but 
 upon some other issues, interlocutory or collateral, whereby 
 some supposed right of a party is definitely cut off, or some li- 
 ability fixed upon him. {a) Generally an order made on a 
 side hearing is only final if the decision closes the matter and 
 precludes any farther hearing or investigation. If it is other- 
 wise, the order is interlocutory. The effect produced by the 
 adjudication upon the rights and interests of the parties is the 
 best test as to whether it is interlocutory. And it has been 
 held that whenever a legal right vis divested by an order in 
 chancer}', it is final, and an appeal will lie therefrom, (b) 
 
 Orders not final. — An order overruling a demurrer, (c) 
 Sustaining a demurrer, but not finally disposing of the 
 case, id) Granting temporary alimony, (e) Opening for re- 
 
 {a)Damouth v. Elock, 28 Mich. 163; 29 Mich. 289; Barri/ v. Briggs, 22 
 Mich. 201; Leivin Y. Campau, 14 Mich. 458; Kingsbury y. Kingsbury, 20 
 Mich. 215; Enos v. Sutherland, 9 Mich. 148; Patterson v. Hopkins, 23 
 Mich. 541 ; Tawas Bay R. B. y. Iosco Circuit Judge, 44 Mich. 479; Max- 
 field V. Freeman, 39 Mich. 65. 
 
 (6) Ibid , 
 
 (c) Richards v. Wood, 48 Mich. (April Term, 1882); Bennett v. Nichols, 
 12 Mich. 24. 
 
 {d] Blackwood v. Van Vleet, 10 Mich. 398; People v. Calhoun Circuit 
 Jvdge, 28 Mich. 269. 
 
 (e) Cooper v. Mayhew, 40 Mich. 528; Lapham v. Lapham, 40 Mich. 527; 
 Saines v. Haines, 35 Mich. 138. 
 
748 PEACTICE IN THE SUPREME COURT. 
 
 Appeal, when Allowed — Orders not Final. 
 
 view a decree for permanent alimony, aud ordering a refer- 
 ence, (a) Dissolving a temporary injunction, (i) Denying 
 motion to dissolve, (c) Refusing temporary injunction, (d) 
 Allowing bill of review to be filed, (e) Setting aside ^to oon- 
 fesso decree, and permitting defense. (/") Appointing receiver 
 ancillary to equitable relief (^) Opening bidding before con- 
 firmation, and directing new sale on condition. (A) Decree 
 directing reference to do that which the court, but for power 
 to refer would have to do itself. {%) Decree consisting in part 
 of reference for accounting. (_;') An order to discharge a re- 
 ceiver, and requiring an accounting. (^) Refusing appoint- 
 ment of receiver in a foreclosure suit. (Z) Appointing receiver 
 to take possession of securities held under disputed right, (m) 
 Denying motion to stay foreclosure sale, and vacating tem- 
 porary order staying sale. (») A decision announced, but no 
 decree drawn up and filed, (o) An order declaring there 
 should be specific performance, but not giving directions, and 
 requiring further inquiry. (_p) Confirming report of special 
 commissioner on reference, to ascertain amount due between 
 parties. (§■) Confirmation of commissioner's report on refer- 
 ence to examine and state partnership account, (/■) Order 
 
 (a) PerJcim v. Perkins, 10 Mich. 425. 
 
 (6) Boinai/ v. Coats, 17 Mich. 411; Spencer v. Stearns, 28 Mich. 463. 
 
 (c) Wing v. Warner, 2 Doug. 288. 
 
 (d) Duncan v. Duncan, 15 Mich. 415. 
 
 (e) MaxfleU v. Freeman, 39 Mich. 64; "Beecher v. M. <& P. E. Co, 40 
 Mich. 307. 
 
 (/) Prentis v. li.ice. 2 Doug. 296. 
 
 (g) M. d: M. Bank Detroit v. Kent Circuit Jud^e, 43 Mich. 292. 
 
 (h) Demaray y. Little, 17 Mich. 386. 
 
 (i) Casnellj. Comstock, 6 Mich. 891. 
 
 (j) Enos V. Sutherland, 9 Mich. 148. 
 
 (k) Colgate v. M. d: L. S. R. R. Co., 28 Mich. 288. 
 
 (/) Beecher v. M. <$; P. R. M. Co., 40 Mich. 307. 
 
 (m) Brown v. Vander Meulen, 41 Mich. 418. 
 
 (re) Romeijn v. Hale, 1 Mich. 93. 
 
 (o) Neiobould v. Stewart, 15 Mich. 155. 
 
 (p) Patterson v. Hopkins, 23 Mich. 541. 
 
 (g) Bewick v. Alpena, etc. 39 Mich. 700. 
 
 (»•) Kingsbury v. Kingshury, i20 Mich. 212. 
 
PRACTICE IN THE SUPREME COURT. 749 
 
 " Appeal, when Allowed — Final 
 
 settling allowance of payment, and deferring the cause for 
 coniputation of amount due on the basis of such allowance, {a) 
 
 Final. — Decree for costs. (5) Order denying writ of assist- 
 ance, (o) Striking a. bill from the files, {d) Adjudging a 
 party guilty of contempt and imposing punishment, [e) Re- 
 fusing to set aside decree for irregularity, (y) Dismissing a 
 cross-bill. (^) Denying leave to file bill of review. (A) Setting 
 aside foreclosure sale after confirmation, (i) Confirming sale on 
 foreclosure decree, {j) Appointing receiver to take charge of 
 assets of estate, on bill aiding proceedings to remove the ad- 
 ministrator. (^) To take possession of realty and personalty 
 on special proceedings, and to eject the occupant. {I) Giving 
 receiver power to dispossess one who is prima facie the lawful 
 occupant of premises, (m) To take possession and dispose of 
 all firm property held by surviving partner, (n) Decree of 
 divorce though reference is ordered as to alimony, {p) An 
 order vacating a sale and ordering a new sale on new terms, [p) 
 A decree upon a petition filed for revision of decree of di- 
 vorce, {q) Fixing the rights of parties, though ordering 
 
 , (o) Morris V. Morris, 5 Mich. 171. 
 
 (h) McCabey. Fcvnsworth, 27 Mich. 52. 
 
 (c) Bakery. Pierson, 5 Mich. 456. 
 
 (rf) Webster y. Hitchcock, 11 Mich. 56. 
 
 (p) Romeyn v. Caplis, 17 Mich. 449; People v. Simonson, 9 Mich. 492; 
 Haines v. Haines, 35 Mich. 138; Brener y. Kidd, 23 Mich. 440. 
 
 (/) Mich. Ins. Co. v. Whittemore, 12 Mich. 311. 
 
 (g) F. & M. Bank v. Bronson, 14 Mich. 361. 
 
 {h) Johnson v. Shepard, 35 Mich. 115; Scriven y. Hursh, 39 Mich. 98; 
 Beecher v. M. & P. M. E. Co., 40 Mich. 308. 
 
 (i) Billiard y. Green, 9 Mich. 222; Laurence y. Jarvis, 36 Mich. 281. 
 
 (j) Detroit Fire (S: Marine Ins. Co. v. Eenz, 38 Mich. 298. 
 
 (k) Lewis y. Campau, 14 Mich. 458. 
 
 [1) McCombs y. Merryhew, 40 Mich. 721; Port Huron v. St. Clair Cir- 
 cuit Judge, 31 Mich. 456. 
 
 (m) Arnold v. Bright, 41 Mich. 207. 
 
 (rt) Barry v. Briggs, 22 Mich, 201. 
 
 («) Shaw y. Shaw, 9 Mich. 164. 
 
 (p) Perkins v. Perkins, 16 Mich. 162. 
 
 iq) Chandler y. Chandler, 24 Mich. 176. 
 
750 PRACTICE IN THE SUPREME COURT. 
 
 How Appeals are Taken — Claiming Appe'&I. 
 
 accounting of rents and profits, and to ascertain if partition is 
 practicable, (a) Order enjoining a replevin suit for property 
 to which plaintiff claims title, (b) Declaring complainant 
 entitled to dower though further inquiry is directed as to 
 partition. ((?) Decree for divorce against the wife involving 
 her dower rights, the husband having since died, (d) Setting 
 aside conveyance as fraudulent, and including reference to 
 ascertain mesne profits to be paid by defendant, [e)' Ad- 
 judging receiver guilty of contempt, who was illegally ap- 
 pointed, for disobeying an order requiring him to restore 
 property that had come to him as such receiver. {/) 
 
 No appeal lies from an order or decree entered by con- 
 sent, {g) The effect of an appeal is to stay all proceedings 
 until otherwise ordered by the court, (h) 
 
 SECTION III. 
 
 HOW APPEALS AEE TAXEN. 
 
 Claiming appeal. — Within forty days from the entry of 
 the decree or final order, except in cases where the testimony 
 is taken in open court, and then within forty days from the 
 settlement of the case, an appeal must be claimed in writing, 
 which claim of appeal must be delivered to the register of the 
 court within the time that we have mentioned, {i) The time 
 for claiming the appeal does not begin to run until the decree 
 is actually drawn and filed for entry, {j) But when the de- 
 cree is rendered in vacation, the time does not begin to run 
 
 (a) Damouth v. Klocle, 28 Mich. 163; Shepherd v. Rice, 38 Mich. 556. 
 Ih) M. <& M. Bank of Detroit v. Kent Circuit Judge, 43 Mich. 292. 
 
 (c) Brown v. Bronson, 35 Mich. 415. 
 
 [d) Shafer v. Shafer, 30 Mich. 163. 
 («) Hack V. Norris, 47 Mich. 
 
 (/) People Y. Jones, 33 Mich. 303. 
 (^g) Chapin v. Perrin, 46 Mich. 130l 
 {h) Laws 1877, p. 7; Seal v. Chase, 31 Mich. 490. 
 (j) Comp. L. 1871, § 5180; amended 1877, p. 7; settlement of case. Gale 
 V. Gould, 40 Mich. 62. 
 U) Sellers v. Bots/ord, 9 Mich. 490; Newhould v. Stewart, 15 Mich. 155. 
 
PRACTICE IN THE SUPREME COURT. 751 
 
 How Appeals are Taken — Claim of Appeal — Bond on Appeal. 
 
 until the party lias notice, (a) The appeal must be taken the 
 previous Saturday, wlien the last day of the time falls on Sun- 
 day. (5) 
 
 Wo. 266. Claim of appeal. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 AB, 
 
 Complainant, 
 
 vs. y 
 
 CD, I 
 
 Defendant. J 
 
 And now conies the said {complainant or defendant), and 
 hereby claims the benefit of an appeal to the Supreme Court 
 from the {decree or final order), rendered in said cause by said 
 
 court upon the day of , A. D. 18 — . 
 
 Dated, etc. 
 
 _ GHM, 
 
 Solicitor for -. 
 
 To T F G, 
 
 Kegister of said Court. 
 
 Where both parties appeal, each must file his claim of 
 appeal. 
 
 Bond on appeal. — Within the same time that the claim of 
 appeal must be filed, the appellant must file with the regis- 
 ter a bond to the appellee, with sureties, duly approved by a 
 circuit judge, or commissioner, and with a sufficient penalty, 
 conditioned for the performance or satisfaction of the decree 
 or order of the Supreme Court, in the cause, and the pay- 
 ment of the costs of the appellee. 
 
 No. 267. Bond on appeal. 
 
 Know all men by these presents, that we, A B, as princi- 
 pal, and C D and E F, as sureties, are held and firmly 
 bound unto G H in the sum of dollars, lawful money 
 
 {a) Comp. L. 1871, §§4967, 4968; McClung v. McClung, 39 Mich. 55; 
 Kinney v. Washtenaw Circuit Judge, 12 Mich. 26. 
 (6) Drahe v. Andrews, 2 Mich. 203. 
 
752 PRACTICE IN THE SUPREME COURT. 
 
 How Appeals are Taken — Bond on Appeal. 
 
 of the United States of America, to be paid to the said G II, 
 or to his certain attorneys, heirs, executors, administrators 
 and assigns, to which payment, well and truly to be made, we 
 bind ourselves, our heirs, executors and administrators, and 
 each and every of them, firmly by these presents. 
 
 Sealed with our seals,-and dated this day of , A. D. 
 
 18—. 
 
 Whereas, the above named A B has appealed to the Su- 
 preme Court of the State of Michi<j;rtn, from (a decree, or final 
 order, as the case may be) of the circuit court for Llie county 
 
 of , in chancery, made on the day of , A. D. 
 
 18 — , in a cause in said court, in which A B was complainant, 
 and Gr H was defendant. Now, therefore, the condition of this 
 application is such, that if the said A B shall diligently pros- 
 ecute his said appeal, and shall perform and satisfy the de- 
 cree or final order of the Supreme Court in said cause, and 
 shall pay all the costs of said G PI, in the matter of said ap- 
 peal, as the Supreme Court shall award, then this obligation 
 to be void, otherwise to remain in force. A B, [l. s.] 
 
 C D, [l. s.] 
 E F. [l. s.] 
 
 The bond must have sufficient sureties to be approved by 
 the circuit judge or circuit court commissioner of the county, 
 and in such penalty as the judge or commissioner shall ap- 
 prove, (a) The filing of the bond is jurisdictional, and the 
 appeal will be lost if one is not filed within the statutory 
 time, (b) But if filed within the proper time, although de- 
 fective, the defect may be supplied by a new bond, (e) The 
 bond may be executed before an appeal is taken, {d) "Where 
 there is more than one appellant, it is sufficient if the bond 
 appears to be executed by one of them in behalf of all. (e) 
 
 [a) Laws 1877, p. 7. 
 
 (6) Moore \. Ellis, 18 Mich. 77. 
 
 (c) Comp. L. 1871, § 5180, Amended 1877. p. 7; Beehev. Young, 13 Mich. 
 221 ; ^eed v. Li/on, Walk. Ch. 77 ; Maynard v. Hoskins, 8 Mich. 260-, Covell 
 V. Moselei/, 15 Mich. SU; McClintock v. Laing. 19 Mich. ^00; Torrent v. 
 Boom Co., 21 Mich. 160; Cameron v. Adams, 31 Midi. 71; P.irirt 7. Kellogg 
 37 Mich. 317. 
 
 (d) Emerson v. A twater, 34. 
 
 (e) Warner v. Whittaker, 5 Mich. 241. As to li b'lity on bond, see Pros- 
 ser V. Whitney, 46 Mich. 405; Daily v. Litchfield, 11 Mich. 497; Kephart v. 
 F. d: M. Bank, 4 Mich. 602. 
 
PRACTICE IN THE SUPREME COURT. 753 
 
 How Appeals are Taken — Approval of Bond. 
 
 Approval of hond. — Before the bond is filed, it must be duly 
 approved, {a) as we have already seen. A six days' notice of 
 a motion for the approval of the bond by the circuit judge 
 or one of the circuit court commissioners named in the no- 
 tice, must be served on the solicitor for the appellee. 
 
 The notice must contain the amount of the penalty, and the 
 names of the sureties of the proposed bond. On the hearing 
 of the same, the appellee is entitled to be heard as to the ap- 
 proval. (S) The appeal is not complete without such approval. 
 
 The circuit court or circuit judge, at chambers, has power, 
 upon sufficient cause being shown, on special motion for that 
 purpose, to grant an extension of not over forty days for taking 
 and perfecting an appeal, and not over forty days for making 
 the return thereon, (e) 
 
 No. 268. Notice of application for approval of hand on ap- 
 peal. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In Chancery. 
 
 {Title of Cause.) 
 To H K, Esq., 
 
 Solicitor for complainant. 
 Sir: You will please to take notice that the defendant in 
 the above cause has claimed the benefit of an appeal to the 
 Supreme Gowri^romthQ {decree or firual order, as the case may 
 
 ie), made therein on the day of , A. D. 18^, by the 
 
 circuit court of the county of ■, in chancery, and that a 
 
 bond for costs and damages {or iondfor costs and to stay pro- 
 ceedings), with C D and E F as sureties, a true copy of which 
 is hereto annexed, has been duly executed, and that an appli- 
 cation will be made on the day of , A. D. 18^, to J 
 
 M D, a circuit court commissioner {or circuit judge) at his 
 
 oifice in the {city or village) of , in the county of , 
 
 at^ — o'clock in the noon of said day for an approval of 
 
 said bond and sureties. 
 
 Dated etc. Yours, etc., 
 
 JWB, 
 Sol. for defendant and appellant. 
 
 (a) Laws 1877, p. 7. 
 
 (6) Liws 1877, p. 7; CUmznt v. Eoerest, 29 Mich. 20. 
 (c)Liws 1877, p. 7. 
 48 
 
754 PRACTICE IN THE SUPREME COURT. 
 
 How Appeals are Taken — Notice of Appeal. 
 
 In case tlie motion for the approval of the bond on appeal, 
 is made before a circuit court commissioner, the circuit court 
 or the judge at cliambers of the court in which such decree or 
 final order is entered, may, on special motion, order an addi- 
 tional bond, and fix the penalty thereof, and approve the 
 sureties thereto on proper showing, {a) 
 
 The Supreme Court, or the circuit judge of the county 
 where such decree or final order was made, shall, on special 
 motion, and such proper showing, have power, after such ap- 
 peal is perfected, to order an additional bond, and to fix tlie 
 penalty thereof, and approve the sureties thereto, or to refer 
 such approval to a cii-cuit court commissioner of the county 
 in whicli the cause shall have been pending. (J) 
 , Upon the entering of such appeal, and the filing of such 
 bond, as directed in the preceding section, all proceedings in 
 "the cause, in the circuit court in chancery, shall be stayed, 
 except the' taxation of costs and proceedings, in relation to an 
 additional bond provided for in said section, until otherwise 
 ordered by the Supreme Court; but if the appeal shall not be 
 claimed, and the original bond filed within the time limited 
 therefor, no appeal shall be allowed. Provided, that in such 
 case the court in which such cause shall have been heard, or 
 the judge thereof at chambers, sliall have power on special 
 motion and a proper showing, to grant an extension of not 
 over forty days for taking and perfecting such appeal, and not 
 over forty days for the return of such appeal, (c) 
 
 Notice of appeal. — The rule provides [d) that " in chan- 
 cery appeals, the appellant shall within twenty days after per- 
 fecting his appeal, give written notice of such appeal, and of 
 the day when the appeal bond was filed," which notice shall 
 be served on all the other parties, wliether joint or adverse, 
 who have appeared in said cause by serving a copy of such 
 notice on such parties or their solicitors in the court below; 
 
 (n) Laws 1877, p. 7. 
 
 (b) Laws 1877, p. 7. 
 
 (c) Laws 1877, pp. 7, 8. 
 
 (d) Supreme Court Rule 14. 
 
PRACTICE IN THE SUPREME COURT. 755 
 
 How Appeals are Taken — Notice of Appeal. 
 
 and a copy of such notice, with proof of the service thereof, 
 shall be iiled in the office of the clerk of the Supreme Court, 
 on or before the return day of such appeal. 
 
 The foregoing rule has been held to be merely directory and 
 not jurisdictional. On a failure of the appellant to give the no- 
 tice, the appellee is not entitled as a matter of right to have the 
 appeal dismissed, {a) The statute having said that if certain 
 steps are taken, that the Supreme Court shall have jurisdiction 
 over a case on appeal, the Supreme Court can not by rule say 
 that one more step must be taken, and thus deprive them- 
 selves of jurisdiction, {b) The notice may be waived, by a no- 
 tice of hearing, by exchanging briefs or by other acts, (c) 
 The notice of appeal must be given by the solicitor of record 
 in the court below, or by some one substituted in the Supreme 
 Court in his place, (d) 
 
 / 
 
 No. 269. Notice of appeal. 
 
 State of Michigan. 
 
 Supreme Court in Chancery. 
 {Title of Cause.) 
 
 To C. S. M., Esq., 
 
 Solicitor for the defendant and appellee. 
 Sie: You will please to take notice that upon the 
 
 day of A. i). 18 — a claim of appeal was filed with 
 
 the register of the circuit court for the county of in. 
 
 chancery, by which the complainant and appellant claimed 
 the benefit of an appeal to the Supreme Court from the {decree 
 or final order as tlie case may he), rendered in said cause by 
 the circuit court for the county of — ^ in chancery on the 
 
 , day of A. D. 18 — , and that upon the day of 
 
 A. D. 18 — , a bond as required by the statute, duly ap- 
 proved by S. W. O., a circuit court commissioner in and for 
 
 (a] Garrett V. Litchfield, 10 Mich. ABl; Shook \. Proctor, 26 Mich. 283; 
 Simpson V. Mansfield, 38 Mich. 629. 
 
 (6) Ibid. 
 
 (c) Durfee v. McClurg, 5 Mich. 582; Cameron v. Adams, 31 Mich. 71; 
 Garrett v. Litchfield, 10 Mich. 451. 
 
 {d) English v. Maxwell, 25 Mich. 462; see, also, on service of notice» Mc- 
 Curdy v. Bowman, 27 Mich. 214. 
 
756 PRACTICE IN THE SUPREME COURT. 
 
 How Appeals are Taken — Affidavit of Service of Notice of Appeal, etc. 
 
 the county of was filed with the register of said circuit 
 
 court for the county of in chancery, in his office in the 
 
 {city or village^ in said county of . 
 
 Dated, etc. 
 
 Yours, etc., 
 
 H F S, 
 Solicitor for complainant and appellant. 
 
 No. 270. Affida/oit of seroine of notice of appeal to he filed 
 vn Svpreme Court, clerks office. 
 
 State of Michigan. 
 
 Supreme Court in Chancery. 
 [Title of cause.) 
 
 County, ss. 
 
 J. W. P., beinaj duly sworn, deposes and says that he resides 
 
 in the township of county of in said State, that 
 
 he is — years of age, and is personally acquainted with C S 
 M, the solicitor for the above named defendant and appellee, 
 
 and that upon the — day of , A. D. 18 — , at — o'clock 
 
 in the noon, deponent served on said C S M, by 
 
 handing to him personally a notice of appeal, of which the 
 annexed is a true copy. Deponent further says that said 
 C S M was the solicitor of record of said defendant in the 
 court below, and further deponent says not. 
 
 Subscribed and sworn to before me this — day of , A. 
 
 D. 18—. 
 
 J S, 
 Notary Public, county, Michigan. 
 
 Register's return. — Upon the appellant paying to the regis- 
 ter the sum of five dollars, the register must attach together 
 all the original pleadings, processes, motions, notices, orders 
 and decrees which have been filed, together with the original 
 minutes of all of the testimony, whether taken in open court, 
 by a commissioner, or settled by the court, and also a copy of 
 all journal and calendar entries, and all other proceedings of 
 record not embraced in the original papers, and transmit the 
 same with his certificate etc., to the Supreme Court, within 
 fifteen days after the entry of the appeal. If the appellant 
 neglects to pay the register such fee for thirty days after such 
 appeal shall have been perfected, he will be deemed to have 
 
PRACTICE TN THE SUPREME COURT. 757 
 
 How Appeals are Taken — Extending Time for Return. 
 
 waived his appeal, and the appellee may at once proceed to 
 enforce his decree, as though no appeal hadbeen taken, {a) 
 This provision of law requiring the paynient of five dollars to 
 the register within a certain time, is merely for the protection 
 of the register, and the appeal is not considered waived, if 
 the register proceeds without it, to act and makes the return^ 
 The fee may be waived by the register. It is only when he 
 refuses to act that the appellant loses his appeal, (i) 
 
 So too, the statutory provision that the register is to make 
 his return within fifteen days, a provision which modifies Su- 
 preme Court Eule 19, is merely directory in its nature. If the 
 return is made before a motion in the Supreme Court to dis- 
 miss the appeal is called up, the motion will be denied, unless 
 there has been gross negligence. Still, if no adequate excuse is 
 made for the delay, the appellee will be awarded costs, (c) The 
 appellant should show that he has done all in his power to pro- 
 cure a return, (d) If the appeal is not perfected within the 
 statutory period, it goes to the jurisdiction, and laches on the 
 part of the appellee will not prevent him moving to dismiss 
 on that ground, (e) But notice of hearing by an appellee is 
 a waiver of irregularities in taking the appeal. (J') 
 
 Extending time for return. — The time allowed for the 
 register to make return, may, before the same has expired, 
 be extended for a period not exceeding forty days, by a jus- 
 tice of the Supreme Court, or the circuit judge, or the dis- 
 trict judge of the upper peninsula, on cause shown. The 
 order granting the extension must be indorsed on, or append- 
 ed to the afiidavit, and delivered to the clerk of the court that 
 
 (a) Laws 1879, p. 25, amending Comp. L. 1871, § 5182. 
 (6) Taylor v. Boardman, 16 Mich. 506. 
 
 (c) Lathrop v. Hicks, 2 Doug. 222; Maynard v. Hoskins, 8 Mich. 81; 
 Garret v. Litchfield, 10 Mich. 451 : Bahcock v. Trust, 16 Mich. 282; Covell 
 v. Moseley, 15 Mich. 514; Beebe v. Young, 13 Mich. 221. 
 
 (d) Taylor v. Boardman, 16 Mich. 506; Moore v. Ellis, Ig Mich. 77; 
 Ball V. Ball, 18 Mich. 380. 
 
 (e) Moore v. Ellis, 18 Mich. 77. 
 
 (/) Durfee v. MeClurg, 5 Mich. 532. 
 
758 PRACTICE IN THE SUPREME COURT. 
 
 How Appeals are Taken — What the Return Includes, etc. 
 
 made the decree complained of, and returned with the other 
 papers by the clerk to the Supreme Court, and the time fixed 
 in such order shall be treated as if it had been the original re- 
 turn day. Notice of such extension must be served within 
 ten days after the granting thereof upon the parties entitled 
 to the original notices, {a) 
 
 What the retwrn includes. — "We have already seen that the 
 register must attach together, and return all the original 
 pleadings, processes, motions, notices, orders and decrees, 
 which have been filed, together with the original minutes of 
 the testimony, whether taken in open court or by a commis- 
 sioner, or settled by the court, and, also a copy of all journal 
 and calendar entries, and all other proceedings of record not 
 embraced in the otiginal record, together with any aflidavit 
 and order extending the time for making the return. His 
 return should also include the appeal bond. (5) Where de- 
 murrers to the original and amended bill have been sustained, 
 the original bill is part of the record on appeal, and should be 
 included in the return, (e) But, on appeal from a decree on 
 accounting, unless questions of fraud or forgery, or some 
 special difficulty should require it, transcripts from partner- 
 ship books, and not the books themselves, should- be re- 
 turned, {d) 
 
 Entry of a/ppearance. — JSTo formal entry of appearance is 
 required in the Supreme Court, and no notice of appearance 
 or of retainer is required. Solicitors of record in the court 
 below, may be treated as counsel in the Supreme Court, in the 
 absence of actual notice to the contrary, (e) 
 
 Settling case hea/rd in open cowrt. — We have heretofore 
 
 (a) Supreme Court Rule 15; Laws 1877, p. 7, amending Comp. L. 1871, 
 
 § 5181. 
 
 (a) Maynard\. Eoshins, 8 Mich. 81; Wright v. Dudley, 8 Mich. 115; 
 Brown v. Thompson, 29 Mich. 72. 
 
 (6) Riopelle v. Doellner, 26 Mich. 102. 
 
 (c) Harrison v. Dewey, 47 Mich. 
 
 {d) Frost V. Lawler, 33 Mich. 348; see, also on notice, Franklin v. 
 Mansfield, 8 Mich. 99; BrushaherY. St^gemann, 22 Mich. 199. 
 
PRACTICE IN THE SUPREME COURT, 759 
 
 How Appeals are Takea — Settling Case heard in Open Court. 
 
 quite fully considered this subject, (a) and the proper practice 
 to be pursued, What has been said, need not be here re- 
 peated. 
 
 When, within the time allowed for settling a case, the circuit 
 judge before whom the cause was tried, resigns without set- 
 tling the same, the Supreme Court on appeal, on an applica- 
 tion of the appellant, will reverse the decree, and remand the 
 case for a new trial, but without costs. {!>) But when the 
 testimony is taken in open court, and the judge, before whom 
 the same was tried, goes out of office before the time for set- 
 thng the case, it may, under Act No. 8, laws of 1879, be set- 
 tled from the stenographer's minutes, in suits where there is 
 an official stenographer, (e) 
 
 When proofs have been taken in open court, and decree ren- 
 dered, the circuit judge has power after the sixty days from 
 the date of the decree, to grant an extension of the time for 
 making and iiling a case, provided the time so allowed does 
 not exceed the statutory period of three months. 
 
 The application need not necessarily be made within sixty 
 days, id) Where it is in the power of a party to have his 
 case settled, and he does not do so, he loses the benefit of his 
 testimony taken in open court. But when the delay is caused 
 by officers of the court, such as through sickness or inability 
 of the stenographer, or circuit judge, over which he has no 
 control, and without fault or negligence on his part, a settle- 
 ment of the case made after the three months will be good, (e) 
 In such case, the Supreme Court will extend the time to per- 
 fect the appeal, and if the return has been made, it will give 
 opportunity to correct such defects as were not due to the 
 appellant's neajligence. If the transcript has not been signed, 
 the proper certificate can be obtained from the circuit judge, 
 
 (a) Ant% page 184. 
 
 (6) ScriMerY. Gay, 5 Mich. 511; Hewlet v. Shaw, 9 Mich. 346; Tucker 
 V. Tucker, 26 Mich. 443. 
 (c) Johnson v. Johnson, 48 Mich. (April term, 1882), 
 (A) TiMen v. Wayne Circuit Judge, 44 Mich. 515. 
 (e) Cameron v. Calkins, 43 Mich. 191, 
 
760 PRACTICE IN THE SUPREME COURT. 
 
 Motions. 
 
 that the case was settled and that the proofs are correct and 
 filed with the record, (a) 
 
 SECTION IV. 
 
 MOTIONS. 
 
 All motions should be noticed, (5) and all notices mnst be 
 in writing, (c) The notice is served upon the solicitor in the 
 cause, or his agent. Where a party, who is also an attorney 
 of the Supreme Court, prosecutes in person, or, if a defend- 
 ant shall" give notice that he is an attorney, and that he will 
 'defend in person, all notices and other papers must be served 
 on him in like manner. Where the object of a service is to 
 bring a party into contempt for disobey ing any rule or order 
 of the court, the service must be on the party personally, un- 
 less otherwise ordered, {d} 
 
 Where the attorney or adverse party has his office more 
 than two miles from the place of holding court, service of pa- 
 pers may be made on an agent. If he has no agent, service 
 may be made by putting the notice or paper in the post-office, 
 postage paid, directed to the attorney at his place of residence, 
 to be ascertained according to the best information and belief 
 of tlie person making tlie service, (e) So notices may be serv- 
 ed by leaving the same with the clerk of the solicitor at his 
 office, or with any person having charge ther'eof, or wlien no 
 person is to be found in the office, by leaving the same be- 
 tween the hours of six in the morning and nine in the even- 
 ing, in some suitable and conspicuous place in such office. 
 If the office is not open so as to admit of service therein, the 
 same may be left at the attorney's residence with some per- 
 son of suitable age and discretion. (/) When a defendant has 
 
 (a) Gram v. Wasey, 45 Micli. 223. 
 
 (h) People V. Supervisors, 19 Mich. 9; Hill v. Bowers, 21 Mich. 303. 
 
 (c) Miison V. Kellogg, 38 Mick. 132. 
 
 (d) Supreme Court Rule 3. 
 
 (e) Supreme Court Rule 2. i 
 (/) Supreme Court Rule 4. \ 
 
PRACTICE IN THE SUPEEMS COURT. 761 
 
 Motions. 
 
 not appeared, or given- notice of his intention to appear, no 
 service of papers in the ordinary proceedings of the cause is 
 necessary, (a) j 
 
 Proof of service of all notices of motions and all other 
 notices, should be made and filed with the clerk of the Su- 
 preme Court. The afiidavit should be attached to the origi- 
 nal paper placed on file if convenient, and if not, then tliere 
 should be annexed to it a true copy of the same, the aifiant 
 deposing that on a certain day he served a true copy of a cer- 
 tain paper on file, of wliich the annexed is also a true copy. 
 
 Notices of special motions must be of at least ten days, 
 wliea the attorney of the adverse party resides over one hun- 
 dred miles from the place of hearing. If over fifty and less 
 than one hundred miles, of at least six days, and in all other 
 cases, of at least four days; and a copy of the afiidavits and 
 other papers on which any motion shall be made, must be 
 served with the notice, (b) The court or any judge thereof 
 may extend or shorten the time, (o) In computing time as 
 to distanee.the usual rente of travel must govern, (d) And in 
 Computing time as to days, an intervening Sunday is not to be 
 excluded, (e) The day upon which the time commences to 
 run, is excluded, and the last day is included, except when 
 tlie last day falls on Sunday, and then the party has the %vhole 
 of the following day. (f) The rule is different where, by the 
 express terms of a statute or rule, the day on which an act is 
 to be done is excluded, {g) What has been here said with re- 
 gard to notices generally, is applicable with equal force to 
 notices of hearins:. 
 
 (rt) Supreme Court Rale 5. 
 
 (6) Supreme Court Rule 26. 
 
 (c) Supreme Court Kule 27. 
 
 ((7) Rai/mind v. Hinckson, 15 Mich. 577. 
 
 ie] Anilersoii v. Baughmmi, 6 Mich. 298; Corey v. Hillilcer, 15 Mich. 
 814. 
 
 (/) Supreme Court Rule 7; Gante-<r. Tales, 40 Mich. 725; Anderson v. 
 Batiffhman, 6 Mich. 298; Dousman v. O'MaUy, 1 Doug. 450; Drake v. 
 Andrews, 2 Mich. 205. 
 
 (jf) SaJlee v. Ireland, 9 Mich. 154; Warren v. Blade, 23 Mich. 1; Powers' 
 Appea ', 29 Mich. 504; Doyle v. Mizner, 41 Mich. 549. 
 
762 PRACTICE IN THE SUPREME COURT. 
 
 Motions — Motion Docket — Motion Days — Agreement between Counsel. 
 
 Motion docket. — Statement of all motions which are not 
 calendar causes, must be left with the clerk, at some time 
 before the day when they are intended to be brought on. 
 The statement must contain the title of the motion, the 
 nature and grounds of it, in brief form, and the name of 
 the moving counsel, and also of the opposing counsel, if 
 known. The clerk enters such statement on a motion 
 docket, in the order that they are delivered to him, and, 
 on the opening of the court on motion day, presents the 
 docket to the court, (a) The motions are called from the mo- 
 tion docket by the Chief Justice in their order, and no motions 
 except such as are calendar cases, will be entertained unless 
 brought forward as provided for in this rule. (5) 
 
 Motion days. — Tuesday of the first week in term and every 
 Tuesday thereafter are special motion days, on which motions 
 have preference over calendar causes; and all special motions 
 must be noticed for one of those days when notices are neces- 
 sary. All motions will be heard on the day for which they 
 are noticed, unless adjourned over until a subsec[uent motion 
 day, or unless there is not time to hear the same on the day 
 for which they are noticed, in which case they will be heard 
 on the next or succeeding days, (c) 
 
 Notice of special motions are in all cases necessary 
 where the opposite party has appeared in the cause; {d^ 
 and no special appearance being necessary in the Supreme 
 Court, it is good practice to serve notice of every step taken. 
 A motion for a certain day in term and not then called up, 
 can not be taken up any subsequent day in term, except by 
 consent, unless it has been ordered to stand over until such 
 subsequent day. {e) 
 
 Agreements between counsel. — No agreement or consent 
 
 (a) Supreme Court Rule 58. 
 (6) Supreme Court Rule 28. 
 
 (c) Supreme Court Rule 24. 
 
 (d) Scribner v. Doseman, 6 Mich. 283; Carpenter v. People, 19 Mich. 9. 
 
 (e) Ireland v. Spaulding, 11 Mich. 455. 
 
PRACTICE IN THE SUPREME COURT. 763 
 
 Motions — Motion to Dismiss Appeal. 
 
 between the parties or their solicitors in respect to the pro- 
 ceedings of a cause, will be binding unless the same is reduced 
 to the form of a rule by consent, and entered in the book of 
 special rules, or unless evidence thereof shall be in writing, 
 subscribed by the party or his solicitor, against whom the 
 same shall be alleged, {a) But a verbal agreement when 
 acted upon in good faith, may constitute ground for relief, {b) 
 
 Motion to dismiss appeal. — A motion to dismiss an appeal 
 should be made at the earliest opportunity, and it must state 
 the ground upon wliich it,is based, (c) The merits of the 
 cause will not be considered on this motion, {d) It may be 
 made for lack of jurisdiction in the court, (e) as well as upon 
 other grounds. It may be made for want of prosecution, and 
 when upon the latter ground, the court may grant the motion 
 or deny the same on such terms and conditions as the justice 
 of the case requires. (_/) 
 
 Non-payment of costs imposed on refusing to dismiss an 
 appeal, is no ground for another motion to dismiss if the 
 refusal was not conditioned on payment thereof, {g) Appeals 
 will not generally be dismissed for mere errors of practice. (A). 
 Objections to the record as it stands at the beginning of the 
 term, should then be made, and in one motion, (i) 
 
 If an appeal is dismissed, and the appellant has good 
 grounds therefor, he may move to have the cause reinstated, [j) 
 
 (a) Supreme Court Rule 6. 
 (6) Scott V. Scott, 5 Mich. 106. 
 
 (c) Warner v. Whittaher, 5 Mich. 241; Steward r. Dixon, 6 Mich. 391; 
 Powers V. Irish, 23 Mich. 430; Jaguith v. Hak, 30 Mich. 163. O'Flynn 
 V. Eagle, etc., 7 Mich. 306. 
 
 (d) Mich. Ins. Co. v. Whittemore, 12 Mich. 311. 
 
 (e) Moore v. Ellis, 18 Mich. 77. 
 
 (/) Supreme Court Rules 19 and 20. 
 
 (s) Connorton'v. Miller, 41 Mich. 1; see Stevens Y. Townsend, 1 Dong. 77. 
 
 [h) Weed v. L.yow, Walk. Ch. 77; Shook v. Proctor, 26 Mich. 283; Mc- 
 Bride v. Eea, 33 Mich. 347; MeCardy v. Bowman, 27 Mich. 214; Ball v. 
 Ball, 18 Mich. 380; Maynard v. Hoskins, 8 Mich. 81. 
 
 (i) Spencer v. Fish, 43 Mich. 226. 
 
 (j) On this subject see Bingham v. Parsons, 9 Mich. 144j Scott v. Scott, 
 5 Mich. 106. 
 
764 PRACTICE IN THE SUPREME COURT. 
 
 Hearing and Decree — ^Printing Record, 
 
 The entry of a special motion for leave to amend, must 
 show in what particular an amendment is desired. A copy 
 of the proposed amendment with notice of the motion must 
 be served upon the opposite party, (a) Copies of any papers 
 served with notices of motions, must be true and complete. (5) 
 
 If the record is imperfect, the court will, on motion, order 
 the same amended, (c) But the motion must be made 
 promptly, (d) ' 
 
 In cases wiiere counsel are not present in court, notices of 
 motions for a continuance to be heard on the first day of 
 term, must be given at least twenty-four hours previous tliere- 
 to; and if for a subsequent day, two days notice must be 
 given, (e) 
 
 An imperfect record constitutes no ground for dismiss- 
 al. (/) , 
 
 SECTION V. 
 
 HEAEING AND DECEEE. 
 
 Printing record. — The party removing a cause to the Su- 
 preme Court by appeal, must prepare a printed case for tJie 
 use of the court and coirasel, which must contain the whole of 
 the return, except the formal parts, {g) Books and similar 
 exhibits need not be reproduced in the printed record, {h) The 
 record must be printed and served in all cases, without delay, 
 and where there is delay, the party in fault is usually required 
 
 («) Parsons v. Copland, 5 Mich. 143. 
 
 {b) Chesebro v. Chesebro. 21 Mich. .506. 
 
 (c) Sweetzery. Mead, 5 Mich. 33; Scribner v. Gay, 5 Mich. 511; Far- 
 rand V. Bentlei;, 6 Mich. 281; Emory v. Whitnell, 6 Mich. 474; O'Flynn 
 V. Holmes, 7 Mich. 455; Verplank v. Hall, 21 Mich. 469; Roberts v. Mil- 
 ler, 31 Mich. 73. 
 
 {d) Parsons v. Copland, 5 Mich. 144; Evans v. Norris, 6 Mich. 69; 
 Wattles T. Wa--ren, 7 Mich. 309; Smith v. Mitchell,^ Mich. 261: Mich. 
 Ins. Co. V. Brown, 11 Mich. 265; Verplank v. Hall, 21 Mich. 469. 
 
 (e) Suprem3 Court Rule 28. ^ 
 
 (/) Verplank v. Hall, 21 Mich. 469. 
 
 (g) Supreme Court Rule 31. 
 
 (fe) University v. Rose, 45 Mich. 284, 
 
PRACTICE m THE SUPREME COURT. 765 
 
 Hearing and Decree — Notice of Hearing. 
 
 to pay costs, and he is likely to have his cause stricken from 
 the docket, (a) In printing the record, the paper used must 
 be white; there must be a margin of not less than IJ inches; 
 the page must be 7 inches long and 3^ inches wide; ana it 
 tmus be numbered by folios, {h) 
 
 Notice of heari/ng. — After the return of the register has 
 been iiled, either party may notice the cause for hearing (c) 
 But the notice can not be given until the tuU time for making 
 the return has expired, {d) Notice of hearing must be given 
 for the same length of time, and be served in the same man- 
 ner as notices of special motions, {e) Affidavit of the ser- 
 vice should be made and filed with the clerk of the Supreme 
 (jonrt. (y) The notice may be countermanded, and therefore, 
 if the appellee desires to insure a hearing of the cause, he 
 should also serve notice and file a note of issue, {g). A notice 
 without date, that a cause will be brought on for hearing at 
 the next term of said court, has been held to be good in 
 form. (A) All chancery causes must be noticed, for the first 
 day of term. (*) 
 
 iTb. 271. Notice of hearing. 
 State of Michigan. ' 
 
 Supreme Court. In Chancery. 
 
 Complainant and appellant, 
 vs. 
 C D, 
 
 Defendant and appellee. 
 
 (a) Supreme Court Rule 59; Sanborn v. Robinson, 22 Mich. 92; Sager v. 
 Tupper, 38 Mich. 263; Mar wick y. Elsey, 46 Mich. ■; Wilson v. Wil- 
 son, 6 Mich. 272; Lamb v. Hinman, 46 Mich. . 
 
 (b) Supreme Court Rule 59. 
 
 (c) Supreme Court Rule 21. 
 
 (d) Stockton -v. Garland, 14 Mich. 333; Torrents. Muskegon Boom Co., 
 21 Mich. 1. 
 
 (e) Ante, page 761 . 
 
 (/) Matter of Robinson Estate, 6 Mich. 137. 
 Ig) Willey v. Kilduff, 25 Mich. 161. 
 (k) Brushaber v. Stegemann, 22 Mich. 199. 
 (i) Supreme Court Rule 25. 
 
766 PRACTICE IN THE SUPREME COURT. 
 
 Hearing and Decree — Countermand of Notice — Court Calendar. 
 
 To D D H, Esq., 
 
 Solicitor for complainant and appellant. 
 Sir : You will please to take notice that the above entitled 
 cause will be brought on for hearing in said court at the Oc- 
 tober term thereof, A. D. 1882, commencing on Tuesday, the 
 3d day of October. 
 Dated, etc. 
 
 Tours, etc. 
 
 HFS, 
 Solicitor for defendant and appellee. 
 
 No 272. Countermand of notice. 
 
 {Title of cov/rt and cause.) 
 To D D H, Esq., 
 
 Solicitor for complainant and appellant. 
 Sm: You will please to take notice, that the notice of hear, 
 ing of said cause, heretofore served upon you, is hereby 
 countermanded. 
 Dated, etc. 
 
 Tours, etc., 
 
 HFS, 
 Solicitor for defendant and appellee. 
 
 Cov/rt calendar. — At least ten days before the first day of 
 the term, the party noticing a cause for hearing, must give 
 notice to the clerk to place the cause on the calendar for the 
 term. But the clerk can enter no cause on the calendar be- 
 fore the return is filed. The priority of causes on the calendar 
 as first made up, depends upon the date of filing the notice of 
 hearing with the clerk, {a) In order to have a chancery cause 
 heard, it must be upon the calendar for the term. (5) 
 
 At noon of the first day of term the docket is re-arranged, 
 giving precedence to the cases in which the printed record 
 shall then have been furnished by the court. Daring the fore- 
 noon of the first day of term, counsel may furnish the clerk 
 with stipulations, dropping cases lower down or grouping 
 them, to suit their convenience, and they will be placed as stip- 
 ulated in the re-arranged docket, (c) 
 
 (a) Supreme Court Rule 28. 
 ' (6) Supreme Court Rule 25. 
 (c) Supreme Court Rule H. 
 
PRACTICE IN THE SUPREME COURT. 767 
 
 Hearing and Decree — Brief's to be Furnished — The Arguments. 
 
 Aitep the motions are disposed on the first day of term, 
 cases for argument are called in their order, on the re-a'-i-anwed 
 docket, and the call proceeds from day to day during the 
 term. If the parties or either of them are ready, the case is 
 heard, if not, it goes over the term, unless the court on cause 
 shown, orders otherwise. Including the one on hearing, if 
 the same shall not have been concluded on the preceding day, 
 twelve cases only are liable to be called on each day. (a) 
 
 Briefs to he furnished. — At the opening of the arguments, 
 and also when cases are submitted on briefs, each party must 
 furnish to each of the judges, to his adversary, and to the re- 
 porter, clerk and crier, a printed copy of his brief. (J) 
 
 Two copies of each record, and two copies of each brief, are 
 now furnished to the reporter. 
 
 The briefs must be printed upon white paper, and the 
 pages and margins are required to be of the same dimensions 
 as the records, (c) 
 
 The a/rguments. — In the argument of causes, two counsel 
 maybe heard on each side; the time allowed for argument on 
 each side must not exceed three hours, unless by special per- 
 mission of the court on cause shown, [d') In no case except 
 for cause shown, will an oral argument be permitted unless 
 the printed record shall have been furnished previous to the 
 time of preparing the call on the preceding court day. But 
 a case will be taken on briefs when reached, if the printed 
 record is ready for submission ; and it will be at the option 
 of the party not in fault to have the case so submitted or con- 
 tinned on such terms as the court shall deem just. In case 
 no printed record is then ready, the case may be affirmed, 
 dismissed, or otherwise dealt with, as justice may require, {e) 
 
 (a) Supreme Court Rule 42. 
 (fe) Supreme Court Rule 25. 
 (c) Supreme Court Rule 31. 
 (f?) Supreme Court Rule 34. 
 (c) Supreme Court Rule 32. 
 
768 PRACTICE IN THE SUPREME COURT. 
 
 Hearing and Decree — The Arguments. 
 
 Decree. — It is a general rule, that no affirmative relief will 
 be granted to- a party who has not appealed. He must claim 
 his appeal if he desires a change made in the decree in his 
 favor, (a) But while the parties who iiave not appealed can 
 not ask a modification in their favor, yet wherein the case of 
 an accounting the appellants have opened the accounting gen- 
 erally, find obtained a change in their favor, the appellate 
 court will consider the objections of the appellees to the de- 
 cree. (S) A decree can not be enlarged when the compi ain- 
 ant does not appeal, even by way of damages for vexatious ap- 
 peal, (e) A party who does not appeal is presumed to be satr 
 isfied with the decree, {d^ 
 
 Where a decree is made in the court below without notice 
 of hearing, or on defective notice in point of time and he has 
 been deprived of snbstantial rights which he might have saved, 
 if present, the decree will be reversed, (e) But when a bill was 
 taken as confessed and referred to a commissioner to compute 
 the amount due, and a decree was made on the report -without 
 notice to the defendant, and no application was made iu the 
 court below for relief, the court refused to reverse the decree 
 on the ground of want of notice only. (_/): 
 
 "Where complainant appeals but does not appear in person or 
 by counsel, or file a brief, the decree below will be affirmed, 
 though the record be filed, as well as a brief for the defend- 
 ant. (^) 
 
 (a) McCahe v. Farnsworth, 27 Mich. 53; Brown v. Branson, 35 Mich. 
 416; Proctor v. Robinson, 35 Mich. 284; Match v. Hunt, 88 Mich. 1; Pratt 
 V. Lewis, 39 Mich. 13; Heath v. Waters, 40 Mich. 457; Regents v. Rose, 
 45 Mich. 284; Foster v. Malone, 45 Mich. 255; Warnir v. Whittaker, 6 
 Mich. 133; Martin v. McReynolds, 6 Mich. 71; English v. Carney, 25 
 Mich. 178; Abbott v. Alsdorf, 19 Mich. 157; Oliver v. Shoetnaker, 35 Mich. 
 434; Detroit Savings Bank v. Truesdail, 38 Mich. 430. 
 
 (6) Biindij V. Youmans, 44 Mich. 376; Lambert v. Griffith, 44 Mich. 
 65; Grant v. M. <& U. Bank, 35 Mich. 515. 
 
 (c) Heath v. Waters, 40 Mich. 457. 
 
 {d) Foster v. Malone, 45 Mich. 255. 
 
 (e) Jenny v. O'Flynn, 5 Mich. 215; Kellogg v. Putnam, 11 Mich. 344; 
 Mich. Ins. Co. v. Whittemore, 12 Mich. 427. 
 
 (/) Martin v. McReynolds, 6 Mich. 71. See Munch y- Shabel, 37 Mich. 167. 
 
 (^g) Woodward v. Chester, 42 Mich. 461. 
 
PRACTICE IN THE SUPEEME COURT. 
 
 Amendments — Rehearing. 
 
 Amendments. — Under a proper state of facts the Supreme 
 Court will on the hearing remand the case to the lower court 
 with directions that the bill be amended. Where it appears 
 that the complainant has stated his case defectively, and no de- 
 murrer has been interposed, and the proofs show a good cause 
 for equitable interference, the Supreme Court may direct the 
 lower court to make the proper amendments, (a) But on*a 
 hearing in the Supreme Court, it will not be permitted by way 
 of amendment, to substitute heirs as complainants, in place of 
 an administrator. (5) Amendments in the court below, subse- 
 quent to the appeal, will be disregarded, (c) 
 
 Rehearing. — A party may apply in the Supreme Court for 
 a rehearing. It is proper on tlie ground of new and mate- 
 rial evidence, discovered after the appeal to the Supreme Court. 
 The proper practice is to move the Supreme Court for a stay 
 of proceedings, and for a rehearing in the court below. It 
 should be on notice to the opposite party, and conditions will 
 generally be imposed when it is granted, so that the appellee 
 shall not suffer by delay, in case the decree is not altered, {d") 
 Arguments on the merits can not be made on the motion, (e) 
 Wliere the proofs should be re-opened, the motion for a re- 
 hearing in the lower court is the proper practice, (y) A re- 
 hearing is generally denied on the ground of mistakes of judg- 
 ment in tlie Supreme Court, unless, since the decision, new 
 
 (ffl) Banlc of Mich. v. Niles, Walk. Ch. 398; Church v. Holcomb, 45 Mich. 
 29; Sears v. Schwarz, 1 Doug. 504; Gorham v. Wfng, 10 Mich. 486: Palmer 
 V. Rich. 12 Mich. 414; Moran v. Palmer, 13 Mich. 367; Goodenow v. Cur- 
 t's, 18 Mich. 299; Babcock v. Twist, 19 Mich. 516; Thomas v. Gain, 35 
 Mich. 155; O'Flynn v. Eagle, 7 Mich. 306; Sweetzer v. Mead, 5 Mich. 33; 
 Scribnerv. Gay, 5 Mich. 511; Evans y.Norris, 6 Mich. 69; Farrandv. 
 Benilei/, 6 Mich. 281. 
 
 (b) House V. Dexter, 9 Mich. 249. 
 
 (c) O'Fli/nn v. Eagle, 8 Mich. 136; McDonald v. Lewis, 42 Mich. 135.' 
 {d) Case v. Case, 26 Mich. 496; Cranson v. Smith, 47 Mich. 
 
 («) Kraft V. Bath, 45 Mich. 20. 
 
 (/) Sheldon v. Hawes, 15 Mich. 519; Adams v. Field, 25 Mich. 17; Tay- 
 lor Y. Boardman, 24 Mich. 303; Byerson v. Eldred, 23 Mich. 537; Warner 
 V. Juif, 38 Mich. 443. 
 49 
 
770 PRACTICE IN THE SUPREME COURT.- 
 
 Re- argument — Remitting' Record — Pinal Process. 
 
 and important evidence has been discovered, (a) If, through 
 inadvertence and without fault, a proper case has not been 
 settled, when justice requires it, the Supreme Court will dis- 
 miss the appeal, and grant leave to move for a rehearing in 
 the circuit. (5) The circuit court has no power to allow a 
 bill of review upon a decree of the Supreme Court without 
 leave granted, (c) 
 
 Re-a/rgwment. — When in the argument of a cause substan- 
 ,tial rights have been lost, through error on the part of counsel 
 or the court, if a very strong case is made out on the equities, 
 a re-argument will be permitted. (cZ) It will not be granted 
 to allow argument upon a question that the court has inves- 
 tigated, even though it was . not argued by counsel, or dis- 
 cussed in the opinion, when, on the argument of the motion, 
 the matter is not presented in a new light. If reheard, it will 
 be upoQ tlie record, and not upon affidavits, {e) 
 
 Remitting record. — After an appeal has been decided, the 
 records, files and proceedings returned to the Supreme Court 
 by the register of the court below, must, with the- decree or 
 order of the Supreme Court, be remitted to the circuit court 
 for tlie proper county, (y) 
 
 Final froaess. — The final process to which any party may 
 be entitled upon a judgment or decree of the Supreme Court, 
 must be made returnable not less than sixty days from the 
 time of its issue. Such writ may be returnable the first day 
 of the next term, if the necessary time intervenes, and, if not, 
 then on the first Monday of any month thereafter; provided, 
 that two terras shall not intervene between the teste and re- 
 turn day of such writ. (§») 
 
 (a) Thompson v. Jarvis, 4 Mich. 526. 
 (6) Moote V. Scriven, 33 Mich. 500. 
 (c) Ri/erson v. Eldred, 18 Mich. 490. 
 
 {d) Hutchins v. Kemmel, 31 Mich. 134; Vanneter v. Crossimn, 89 Mich 
 610; Wood V. Tniax, 39 Mich. 630. 
 (e) Ibid. 
 
 (/) Laws 1879, amending §§5182 and 5184, Compiled Laws, 1871. 
 {g) Supreme Court Rule 49. 
 
PRACTICE IN THE SUPREME COURT. 771 
 
 Costs. 
 
 Vexatious appeal. — The Supreme Court, upon aiRrming 
 any sentence, determination, or decree, or upon discontinuing 
 or quashing the appeal, may, in its discretion, award dam- 
 ages for the delay and vexation caused thereby, (a) But not 
 where the court is equally divided. (5) 
 
 If an appeal is regularly taken, in a cause heard in open 
 court, but no case settled, the cause will stand for hearing 
 without testimony, and upon the pleadings, (c) 
 
 SECTION VI. 
 
 COSTS. 
 
 Except in a few specified cases, costs are subject to the dis- 
 cretion of the court, {d) But they will not be awarded to 
 either party, when the court is equally divided, {e) and, as a 
 general rule, they will be refused when the case is of a public 
 nature, {f) They will not be granted against a mere nominal 
 party, {g) nor be awarded to parties who have not appealed. (K) 
 But they will be allowed to persons who are nnnecessarily 
 
 (a) Comp. L. 1871, §§ 7402, 7405; Waterman v. Toms, 7 Mich. 78; 
 Myerfieldv. Stettkeimer, 20 Mich. 418; O'Connor v. Parker, 23 Mich. 23; 
 Campau v. Campau, 25 Mich. 127; Whiting v. Butler, 29 Mich. 145; Van 
 Wert V. Chidester, 31 Mich. 209; Goodenow v. CuHis, 33 Mich. 506; Heath 
 V. Waters, 40 Mich. 473, 457. 
 
 (6) Whiting v. Butler, 29 Mich. 145; Rose v. French, 39 Mich. 136. 
 
 (c) Wright v. Dudley, 8 Mich. 75. 
 
 (d) Comp. L. 1871, §§ 7386, 7405; Van Wert v. Chidester, 31 Mich. 209; 
 At^ert/ v. Paine, 12 Mich, 540; Clark v. Raymond, 27 Mich. 457; Rogers v. 
 Anderson, 40 Mich. 290; Lapham v. Lapham, 40 Mich. 527; M. E. Church 
 V. Clark, 41 Mich. 731: Conway-^. Waverly, 15 Mich. 263; Covell v. Mose- 
 ley, 15 Mich. 514; Comstock v. Comstock, 24 Mich. 39; Smith v. Ramsey, 
 33 Mich. 199; Perkins v. Perkins, 16 Mich. 163. 
 
 (e) Whiting v. Butler, 29 Mich. 125; Rose v. French, 39 Mich. 186; 
 Wright v. Smith, 44 Mich. 560. 
 
 (/) Clare v. Auditor-general, 41 Mich. 182; Flint and Pere Marquette 
 R. R., 41 Mich. 685; Scraffoi-dY. Gladwin County, 42 Mich. 464; Bay City 
 Y. State Treas., 29 Mich. 500; Comp. L. 1871, § 7407. ,^ 
 
 (ff) Teed v. Martin, 41 Mich. 216. 
 
 (/») Powers v. Lumber Co., 43 Mich. 468; see 45 Mich. 404. 
 
772 PRACTICE IN THE SUPREME COURT. 
 
 Costs — ^Taxation . 
 
 brought into court, {;i) and if an appellant obtains a modifi- 
 cation of a decree in hia favor, he will nsiially be granted 
 costs. (&) If a case involves a mere q^uestion of practice,, and 
 the losing party acts in. good faith on the advise of counsel, 
 the court may deny costs, (c) 
 
 Unless some special reason is shown to the contrary,, costs 
 are allowed on motions to the prevailing party, {d) and when 
 a party declines to call up a motion noticed by him, costs will 
 be awarded against him. (e) If costs for vexatious litigation 
 are not applied for, even if the complainant makes out no 
 case, no more than ordinary costs will necessarily be award- 
 ed, {f) Though a decree be reversed as to all but one defend- 
 ant, he will be allowed costs, {g) Where a transcript was filed 
 before a motion to dismiss was called up, but without show- 
 ing any excuse for the delay, costs werq granted to the appel- 
 lee. (A) In the cases cited in the note, costs were denied, (i) 
 Costsof printingavexatiously prolix record will bedenied. (_/) 
 
 Taxation. — Costs must be taxed by one of the justices of 
 the Supreme Court, by the clerk of the court, or by such 
 other officers as the Supreme Court may by general or special 
 order designate for that purpose, (h) Notice of not less than 
 two days, of the taxation, must be given. If service can not 
 
 (a) Hone v. Lemon, 37-Mich. 164. 
 
 (6) Attvater v. Turner, 37 Mich. 402. 
 
 (c) Bay City v. State Treasurer, 23 Mich. 499; Buchoz v. Pray, 37 Mich. 
 512; Meyer v. Hart, 40 Mich. 517; Ellis y.^ Fletcher, 40 Mich. 321; People 
 V. Gladwin, 42 Mich. 464; Culver v. McKeoum, 43 Mich. 322; People v. 
 'Wayne Circuit Judge, 14 Mich. S3; Ibid, 18 Mich. 490. 
 
 id) O'Flynn v. ISagle, 7 Mich. 306. 
 
 (e) Johnson v. Providence Ins. Co., 11 Mich. 455; see 15 Mich. 518. 
 
 .(/) Underhill v. Muskegon Boom Co., 45 Mich. 496, 
 
 (g) Davis v. Filer, 40 Mich. 310. 
 
 (h) Babcock v. Twist, 16 Mich. 282. 
 
 (i) Lapp V. Lapp, 43 Mich. 287; Rogers v. Anderson, 40 Mich. 290; 
 Woodward v. Chester, 42 Mich, 461; Maxfleld v. Freeman, 39 Mich. 64; 
 McCurdy v. Clark, 27 Mich. 445; Powers v. Lumber Co., 43 Mich. 468j 
 Brown v. Blanchard, 40 Mich. 61. 
 
 ij) Sager v. T upper, 38 Mich. 258; Supreme Court Rule 59. 
 
 [k) Laws 1881, p. 394, amending §§ 7419, 7424 and 7425, Comp. L. 1871. 
 
PRACTICE IN THE SUPREME COURT. 773 
 
 Costs — Re-taxation. 
 
 be had upon the opposite solicitor within that time, by rea- 
 son of his residence at a distance, one day's additional time 
 must be allowed for each twenty miles distance. No notice 
 need be given of over ten days. The notice must be accom- 
 panied by a, copy of the bill proposed to be taxed, and a copy 
 of the affidavits in support thereof, {a) The necessary ex- 
 pense of printing the record and brief, may be taxed as dis- 
 bursements. But the expense of procuring copies of a stenog- 
 rapher's minutes in settling a case, can not be. (5) Neither 
 can the expense of drawing and engraving a map, printed in 
 the record, (o)' A reasonable allowance paid to an account- 
 ant when the services are necessary, and of benefit to all con- 
 cerned, is a valid charge, {d ) 
 
 The clerk will limit the allowance for printing to the cus- 
 tomary rate for such work, unless satisfied that more in good 
 faith has been paid. Connsel have a right to have the printing 
 done where most convenient to look after the proofs, (e) 
 Bat the clerk can not determine whether a record is unduly 
 prolix. (/") When there is no appearance of counsel, coun- 
 sel fees will not be taxed, (g) Costs as for a full hearing 
 will be granted on submission of a case on briefs. (A) 
 
 The clerk receives six dollars, for all services in a cause 
 heard and decided on its merits. (*) The prevailing party 
 taxes fifteen dollars counsel feesMn a case disposed oi ex parte 
 or without argument, and thirty dollars in case of argument.(_;) 
 Ten dollars counsel fee is usually allowed on motions. 
 
 He-taxation. — Unless a party appears on taxation, or shows 
 
 (a) Supreme Court Rule, 51. 
 
 (6) Hartr. Linsay, Walk. Ch. 72; Hayes r. Livingstone, 35 Micli. 371. 
 (c) Sawyer v. Studley, Walk. Ch. 153; Maxwell v. Bay City Bridge Co. 
 42 Mich. 67. 
 {d) Godfrey v. White, 43 Mich. 172. 
 
 (f) Dickinson v. Seaver, 44 Mich. 624. 
 
 (/) Van Deusenv. Newcomer, 40 Mich. 525. 
 
 [g) Brownx. Blanchard, 40 Mich. 61. 
 ih) Engelv. Hall, 45 Mich. 57. 
 
 (i) Supreme Court Rule 52. 
 
 (j) Supreme Court Rule 48; see upon subject of costs, Laws 1877, p. 12. 
 
774 PRACTTCE IN THE SUPREME COURT. 
 
 Costs — Taxation . 
 
 good excuse for uot appearing, he will not be heard on a mo- 
 tion for re-taxation, (a) For a re-taxation, the party applies 
 to the court, by motion or petition, speoitying the items ob- 
 jected to as erroneously allowed by the clerk, or if irregular- 
 ity is complained of, the reason should be specified, (b) 
 
 (a) Taylor v. Boardman, 16 Mioh. 506. 
 (6) Reeves y. Scully, Walk. Oh. 340. 
 
PROCEEDINGS TO BAR DOWER OF INSANE. 775 
 
 When Proper — Petition for — What Petition must State, 
 
 CHAPTEE L. 
 
 JfEOCEEDINGS TO BAB DOWEE OF INSANE. 
 Section 1. When Propss. 
 
 , 2. PBTITIOIf FOK. 
 
 3. Pkocebdings. 
 
 SECTION I. 
 
 WHEN PROPER. 
 
 By the statute of Michigan, whenever the wife of any per- 
 son shall have become insane, imbecile or idiotic, or for any 
 cause shall be unable from defective intellect, to join her hus- 
 band in the conveyance of real estate, and shall have remained 
 iu that condition for more than two years, or when it shall be 
 made to appear to the court that such married woman is in- 
 curably insane, she may be barred of her right of dower in the 
 lands of her husband, (a) 
 
 SECTION II. 
 
 PETITION FOE. 
 
 The husband or any person interested in any such real es- 
 tate, may apply to the circuit court in chancery of the coun- 
 ty where such lands or any part of such lands are situated, 
 by petition under oath for the appointment of a guardian, and 
 for leave to sell her inchoate right of dower. (5) , 
 
 What petition must state. — The petition shall state the 
 name, > age, and residence of such married woman, and the 
 
 (a) Laws 1873, p. 479. 
 (6) Laws 1873, p. 479. 
 
776 PROCEEDINGS TO BAR DOWER OF INSANE. 
 
 Proceedings — Appearance and Answer of Wife — Taking Proofs. 
 
 name, residence and age of her husband as near as can be as- 
 certained. 
 
 Second. Tlie nature of the disability of said married 
 ■woman, and of tlie length of time it has existed. 
 
 Third. A full description of the lands and premises in 
 this State, to be affected by such proceedings. 
 
 Fourth. The value of each piece of real estate, and the 
 amount of incumbrance upon it (if any), not affected by or 
 prior to her claim of dower. 
 
 Fifth. If the real estate is to be sold by the husband, or 
 has been sold by him, the exact amount of the consideration 
 of such sale, as made or agreed upon. 
 
 Sixth. The reasons why such sale is desirable to said hus- 
 band or petitioner, {a) 
 
 SECTION III. 
 
 PEOC'EEDIN&S. 
 
 Upon the filing of the petition, the circuit court in chancery 
 shall enter an order that the petition be heard on a certain 
 day, and notice of the hearing be given by publication or 
 otherwise, in such manner and to such persons as said court 
 shall direct. (5) 
 
 Appearance and answer of wife. — At such hearing the 
 said wife may appear in person, or by counsel, or by guardian 
 ad litem, appointed as in other cases by said court, and may 
 answer such petition in the time and manner said court may 
 direct, and upon the filing of an answer, the case shall be 
 deemed at issue, (c) 
 
 Tahing proofs. — "When the case is at issue, or if the wife 
 shall fail to appear, the court may proceed summarily upon 
 oral or written evidence, taken under its order, to hear and 
 determine the case; or, at its discretion, may refer it to a cir- 
 
 («) Laws 1873, p. 280. 
 (6) Laws 1873, p. 280. 
 (c) Laws 1873, p. 280. 
 
PROCEEDINGS TO BAR DOWER OF INSANE. 777 
 
 Proceedings — Conumsaioner's Report — Action on Report — Sale by Guardian. 
 
 'cuit court commissioner, or a special commissioner appointed 
 by tlie court for the purpose, to take proofs and report the 
 same to the court with his opinion, {a) 
 
 Coimnissioner's report. — The commissioner must report his 
 opinion. 
 
 First. As to the insanity or imbecility of the respondent. 
 
 Second, As to the propriety or necessity of selling said 
 real estate, or of barring said respondent's right of dower 
 therein. 
 
 Third. The cash value at that time of her dower interest 
 in said premises, taking into consideration the respective ages 
 of the husband and wife. {])) 
 
 Action on report. — Upon the coming in of the report, the 
 court shall consider ' the same, and enter such order as 
 shall be just and equitable. If the court shall decide that the 
 respondent is insane, and that it is desirable that the right of 
 dower should be barred, it shall fix the then present value of 
 such dower, and thereafter shall appoint a guardian of sucli 
 insane person, wjio shall be some person other than her hus- 
 band, who shall give bond in a sum to be fixed by the court, 
 with surety or sureties, to be approved by the court, condi- 
 tioned to receive and invest any moneys that may come into 
 his hands for her sole use and benefit, under the order and 
 discretion of the court, both as to its investment, and to the 
 disposition of the income thereof, (e) 
 
 Sale hy guardian. — Upon the approval of such bond, said 
 guardian may proceed and sell at private sale, as such guard- 
 ian, tlie interest of such married woman in said land, at a sum 
 not less than the value of such dower as fixed by said court. 
 He may join with the husband in such conveyance, or if the 
 husband has previously sold and conveyed such property, 
 may, by separate conveyance, deed said right of dower to the 
 
 (a) Laws 1873, p. 480. 
 (h) Laws 1873, p. 480. 
 (c) Laws 1873, p. 481. i 
 
778 PROCEEDINGS TO BAR DOWER OF INSANE. 
 
 Proceedings — Disposition of Funds. 
 
 husband's grantee or grantees, his or their heirs and assigns, 
 bnt to no other person. Said conveyance shall in all cases be 
 as eflfective to bar the right of dower of said married woman 
 as if she had, being in sound mind, joined her husband in a 
 deed of said premises, (a) 
 
 Disposition of funds. — Said guardian shall apply the in- 
 come of said money to the support of said married woman, or 
 allow the same to accumulate, as the court shall direct; and 
 upon the restoration of said married woman to a sound mind, 
 shall, upon the order of the court, transfer to her all the funds 
 in his hands, and upon her death, shall deliver the same to 
 her husband, if he shall be living at her death; if not living, 
 then to her personal representatives.(S) 
 
 (o) Laws 1873, p. 481. 
 (6) Laws 1873, p. 481. 
 
MISCELLANEOUS FORMS. 779 
 
 Order to Put in Answer — For Commitment. 
 
 CHAPTEE LI. 
 
 MISCELLANEOtrS FORMS. 
 
 During the preparation of this work, want of space has 
 been constantly apprehended, and many less important forms 
 were omitted in their proper places. It has been thought ad- 
 visable to give some of them a place under the head of " mis- 
 cellaneous forms." 
 
 No. 273. Ord&r wJiere defeiidomt amewrs or is Irought iiito 
 cowt iy attachment and admits wis contempt, that he jpiit 
 in his answer within a sjpecified time, (a) 
 
 (Caption, with title of cause o^sin No. 105, ante,^«^e 210.) 
 It appearing to the court that the defendant C D being in 
 contempt for not appearing or answering to the bill of com- 
 plaint in this cause, a writ of attachment had issued against 
 
 him, directed to the sheriff of the county of , returnable 
 
 forthwith; whereupon the sheriff has returned that he had at- 
 tached the defendant C D, and had him in custody before the 
 court; and the said (J D now being before the court, and con- 
 senting to put in his answer in this suit, and to pay the costs 
 of his contempt when duly taxed; on motion of Mr. , so- 
 licitor for the complainant, it is ordered that the said D 
 
 put in his answer to the bill of complaint within days 
 
 from the date of this order, or that the complainant may ap- 
 ply to this court for such further order as may be just. 
 
 No. 274. Order for com/mitment of defendant for disobey- 
 ing order to jgut m his answer. (5) 
 
 (Caption, with title of oatose as in No. 105, ante,^a^e 210.) 
 
 An order having been entered in this cause on the day 
 
 of , 18 — , requiring the defendant D to put in his an- 
 swer to the bill of complaint within days from the date 
 
 (a) Ante, pp. 62, 65. 
 (6) Ante, pp. 64, 65. 
 
780 MISCELLANEOUS FORMS. 
 
 Order in Case of Contempt. 
 
 of said order, or that in default thereof the complainant might 
 be at liberty to apply to this court for such further order as 
 might be just; and it appearing to the court that the defend- 
 ant C D has failed to put in his answer as required by said 
 order; and this court now adjudging the said C D to have 
 been guilty of the misconduct alleged, and tliat such miscon- 
 duct was calculated to, or did actually defeat, impair, impede 
 or prejudice the rights or remedies of the complainant in this 
 
 cause, it is thereupon, on motion of Mr. , solicitor for 
 
 the complainant, ordered that the said C D be, and he is 
 hereby ordered to stand committed to the common jail of the 
 
 county of , there to remain charged upon this contempt 
 
 until he shall have put in his answer as aforesaid; unless the 
 court* shall see fit sooner to discharge him. And it is further 
 ordered that a warrant issue for that purpose. 
 
 No. 275. Order in case of contempt, for not answering, 
 where defendant denies his contetnpt, directing the filing 
 ^ of interrogatories, etc. {a) 
 
 (Caption, with title of cause as in Wo. 105, ante, ®a^^ 210.) 
 It appearing to the court that the defendant C D, being in 
 contempt for not appearing or answering to the bill of com- 
 plaint in this cause, a writ of attachment had issued against 
 
 liira, directed to the sheriff of the county of , returnable 
 
 forthwith; whereupon the sheriff has returned that he had 
 attached the defendant C D, and had him in custody before 
 the court"; and the said C D, being now before the court, and 
 denying that he is guilty of the misconduct alleged against 
 
 liim; it is ordered that the complainant do within days 
 
 file with the register of this court, interrogatories specifying 
 the facts and circumstances alleged against the said C D ; and 
 that he serve a copy thereof on the said C D; and that the 
 said C D put in written answers to such interrogatories, upon 
 
 oath, and file the same within doAjS, after the time when 
 
 such interrogatories are served on him, in the oflSce of the 
 register of this court. And it is further ordered, that it be 
 referred to J M D, a commissioner of this court, to examine 
 the said C D, on oath, upon the said interrogatories; and to 
 take such further proofs as either party may produce before 
 liim in relation to the alleged contempt; and that he report 
 such answers and proofs to this court. And it is further br- 
 
 (a) See ante, pp. 62-65. 
 
MISCELLANEOUS FORMS. 781 
 Order on Contempt After Interrogatories, 
 dered that the said diefendant be let to bail in the suixi of 
 
 •dollars; and tliat the said D attend, from day to day, be- 
 fore this court, until the further order of the court. 
 
 On a reference of this nature the commissioner is not au- 
 thorized to I'eceive the ex p(vrte aflSdavits of witnesses, unless 
 the order of reference expressly authorizes him to do so. The 
 parties must produce and examine the witnesses before the 
 coraraissioner; so that they may be cross-examined by the 
 adverse party, (a) 
 
 No, 276. Order oonviofvng defendant of a contempt after- 
 Ms exami/nation upon vnterrogatories. (h) 
 
 {Caption, and title of cause as in JVo. 105, ante, page 210.) 
 A writ of attachment having been heretofore issued out of 
 and under the seal of this court, against the defendant, C D, 
 for his contempt in not answering the complainant's bill, di-- 
 
 rected to the sheriff of the county of , and returnable 
 
 forthwith; and the said sheriff having returned that lie had 
 attached the said C D, and taken his body, and had him in 
 custody before the court; and tlie said C D having been by , 
 virtue of such attachment personally before the court, on the 
 said day of instant; and denying the alleged con- 
 tempt, it was thereupon ordered that the complainant in this 
 cause, should, within days, file in the office of the regis- 
 ter of this court interrogatories specifying the facts and cir- 
 cumstances alleged against the said D; and that he serve a 
 copy thereof on the said C D; and that the said C D should 
 put in written answers to such interrogatories, upon oath, and 
 file the same within days after the service of such inter- 
 rogatories; and that it should be referred to J M D, a com- 
 missioner of this court, to examine the said C D, on oath, 
 upon such interrogatories, and to take such further proofs as 
 either party might produce before him in relation to the al- 
 leged contempt; and it now appearing to the court from tlie 
 report of the said commissioner, and the answers and proofs 
 thereto annexed, that the said C D has committed the con- 
 tempt with which lie is charged, and this court liow adjudg- 
 ing him to have been guilty of the misconduct alleged, and 
 that such misconduct was calculated to, or did actually defeat, 
 
 (a) Gumming v. Wagoner, 7 Paige, Ch. 603. 
 (6) See ante, pp. 62, 65. 
 
782 MISCELLANEOUS FOEMS. 
 
 Order to Refer Second and Third Answers, etc. 
 
 impair, impede or prejudice the rights of the complainant in 
 
 this cause, it is therefore ordered, that a fine of dollars 
 
 be, and the same is hereby imposed upon the said D for his 
 said misconduct. And it is further ordered, that the said 
 JD do pay to the said complainant the costs and expenses of 
 the proceedings for such misconduct, and now taxed at the 
 
 sum of dollars. And it is further ordered, that the said 
 
 C D be, and he is hereby directed to stand committed to the 
 
 common jail of the county of , there to remain charged 
 
 with this contempt until he shall have fully answered the said 
 bill of complaint, and paid such fine and costs; unless the 
 court shall see fit sooner to discharge him. And that a war- 
 rant issue for that purpose. v 
 
 Upon this order a mittimus, or warrant of commitment 
 for contempt in not appearing, will issue. 
 
 Ifo. 277. Order to refer second or thi/rd answer on the old 
 exceptions, {a) 
 
 {Caption, and title of cause as in No. 105, ante, page 210.) 
 Exceptions having been heretofore taken to the answer of 
 the defendant C D, and such answer having been reported in- 
 sufficient in the matters of the first and fourth exceptions, the 
 defendant has put in a second {or third) answer to the bill in 
 this cause; which answer the complainant alleges to be in- 
 sufficient in the matters of the said first and fourth exceptions: 
 It is therefore ordered that it be referred to J M D, a com- 
 missioner of this court, to whom such exceptions were origin- 
 ally referred, to look into the bill of complaint, the answer of 
 the defendant, and the said first and fourth exceptions, and to 
 report whether such second {or third) answer is sufficient in 
 the matters of the exceptions, or not. 
 
 No. 278. Order for sheriff^ acting as sergeant-at-arms. (b) \ 
 
 {Caption, 'and title of cause as in No. 105, ante, page 210.) 
 The defendant G D, being in contempt for not appearing 
 and answering to the bill of complaint in this cause, and a com- 
 mission of rebellion having been heretofore issued out of and 
 under the seal of this court, directed to certain commissioners 
 therein named, commanding them to attach the said C D as a 
 
 ( a ) See ante, pp. 62-65. 
 (6) See ante, p. 66. 
 
MISCELLANEOUS FORMS. 783 
 
 Order for Sequestration. 
 
 rebel and contemner of the law, and to have him before thia 
 court, on the — day of instant; and the said commis- 
 sioners having returned tliat tliey had made diligent search and 
 inquiry after the said C D fo as to attach liis body by virtue 
 of the said commission, but tliat notwithstanding all tiieir 
 endeavors they could not meet with him for that purpose, as 
 by such commission and the return thereto appears. It is 
 
 thereupon ordered that tlie sheriff of the county of , now 
 
 attending this court at its present term, and executing all tJie 
 powers and duties of a sergeaiit-at-arms, do forthwith go and 
 take the said D into his custody, and him safely keep, and 
 bring him immediately into this conrt, before the court, to 
 answer for his contempt, and to do and receive what this conrt 
 shall thereupon furtiier order in the premises. And it is fur- 
 tiier ordered tliat the said sheriff do with all convenient speed 
 certify to this court, under his hand, his doings in the prem- 
 ises. 
 
 Upon this order a warrant to the sheriff acting as sergeant- 
 at-arms will issue. 
 
 Ifo. 279. Order for a sequestration, (a) 
 
 {Caption, and title of cause as in No. !()&, &nte, page 210.) 
 
 ThC'defendant being in contempt for not appearing and 
 answering the bill of complaint in this cause, and a warrant 
 having been issued to the sheriff of the county of , attend- 
 ing this court at its present term, and as snch, executing all 
 the duties of a sergeant-at-arms, requiring him forth wfth to 
 go and take the said C D into his custody and bring him into 
 this court to answer for his contempt, in pursuance of an or- 
 der of this court made on the ^— day of — — ; and the said 
 sheriff, acting as sergeant-at-arins, having returned tliat he 
 liad made diligent search and inquiry after the said C D, but 
 that he did so abscond and secrete himself that he could not be 
 found to be apprehended, as by the said warrant and the re- 
 turn thereof appears; it is therefore ordered that a commission 
 of sequestration do issue against the said C D, directed to E 
 r, G II and J K, commissioners, directing them to sequester 
 the defendant C D's personal estate, and Ihe rents, issues and 
 profits of his real estate, until the defendant D shall ajjpear 
 to the bill of complaint in this cause, clear his contempt, and 
 this court shall make an order to the contrary. 
 
 (a) See ante, p. 67. 
 
784 MISCELLANEOUS FORMS. 
 
 Order of Reference — Fvirther Answer — Attachment, etc. 
 
 Upon this order being made, a writ of sequestration will is- 
 sue. 
 
 No. 280. Order of reference when defendant does not submit 
 to cmswer excejjtions. 
 
 {Cavtion, and title of cause as in No. 105, ante, page 210.) 
 Exceptions for insufficiency having been filed to the answer 
 
 of the defendant C D on the — day of last, and 
 
 the said C D not having submitted to answer said exceptions, 
 it is ordered that it be referred to J M D, a commissioner of 
 this court, to look into said bill and answer of the defend- 
 ant C D and such exceptions, and report whether said excep- 
 tions are well taken or not. 
 
 Ifo. 281. Order for further answer after report of com- 
 missioner. 
 
 {Caption and title of cause, as in No. 105, ante, page 210.) 
 The answer of the defendant C D having been reported 
 insufficient in the matters of the first and fourth exceptions 
 thereto, by the commissioner to whom the exceptions of the 
 complainant to such answer were referred, and the report of 
 the said commissioner being approved by the court, against 
 the defendant D, it is therefore ordered that the said C D 
 put in a further answer to the matters of the said first and 
 
 fourth exceptions within ■ days from this date, and pay 
 
 the costs of such exceptions. 
 
 No. 282. Order for an attachment on third answer being 
 held insufficient. 
 
 {Caption and title of cause, as in No. 105, ante, page 210.) 
 The third answer filed by the defendant C D having been 
 reported insufficient, on a reference to the commissioner upon 
 the original exceptions, in the matters of the first and fourth 
 exceptions, and the report of said commissioner having been 
 filed and having become absolute, it is ordered that an attach- 
 ment issue against theodefendant C D. 
 
 No. 283. Order for examination of defendant on interroga- 
 tories, etc., on third answer being held insufficient. 
 
 {Caption, and title of cause as in No. 105, ante, page 210.) 
 The third answer of the defendant C D having been reported 
 
MISCELLANEOUS FORMS. 785 
 
 Leave to Amend Bill — Reference to Commissioner. 
 
 insufficient, on a reference to the commissioner upon the 
 original exceptions, in the matters of the lirst and fourth 
 . exceptions, and the report of the said commissioner having 
 been filed, and having become absolute, an attachment was 
 thereupon issued against the said D. in pursuance of an or- 
 der of this court rendered on the day of last. 
 
 And the said C D, now being personally before the court by 
 virtue of the said attachment, and this court now adjudging 
 the defendant to have been guilty of the misconduct alleged, 
 and that such misconduct was calculated to, or actually did 
 defeat, impair, impede or prejudice the rights or remedies of 
 the complainant in this cause; it is therefore ordered that the 
 said C D be examined upon interrogatories before J M D, a 
 commissioner of this court, as to the points wherein his said 
 third answer is reported insufficient; and that he stand com- 
 mitted to the common jail of the county of until he 
 
 shall have answered such interrogatories to the satisfaction of 
 the said commissioner, and paid the costs incurred by reason 
 
 of his default, now taxed at dollars; and that a warrant 
 
 issue for that purpose. And it is further ordered, that the 
 sheriff of said county do keep the defendant in his actual cus- 
 tody until the court shall have made some order in the prem- 
 ises, and that he take the said C D before the said com mi s- 
 sioner to be examined, at such times as such commissioner 
 shall appoint. 
 
 JVo. 284. Order for leci/ve to amend bill after a plea to part 
 is allowed, {a) 
 
 {Caption, and title of cause as in No. 105, ^tnts, page 210.) 
 
 Tlie plea of the defendant D to the bill of complaint in 
 this cause having been, on argument, allowed as to part of said 
 
 bill, on motion of Mr. , of counsel for the complainant, it 
 
 is ordered that the complainant have leave to amend said bill 
 by, etc., (Jlere state the manner in which it is to he amended,) 
 upon payment of costs to be taxed. It is further ordered that 
 such amendment be filed with the clerk of this court within 
 days from this date. 
 
 No. 285. Order of refere>nce to the commissioner. 
 
 _ {Proceed as in No. 108, ante, page 215, to the *, and con- 
 tinue:) That this cause be, and the same is hereby, teferredto 
 
 [a) See ante, p. 162. 
 50 
 
786 MISCELLANEOUS FORMS. 
 
 Reference of Plea — Plea to Stand for Answer. 
 
 J M D, a commissioner of this court, to inquire and state to 
 tlie court, etc. {Here insert the subjeot-matter of reference;) 
 and for the betr.er discovery of the matter aforesaid, the par- 
 ties respectively are to produce before the said commissioner 
 all deeds, hooks, papers and writings in their possession, cus- 
 tody or power relatinsj thereto, and are to be examined upon 
 oath and interrogatories as the said commissioner shall direct; 
 and the said commissioner will cause to come before him all 
 such witnesses whose testimony he may deem necessary, and 
 examine them upon oath and interrogatories touching the mat- 
 ters aforesaid; and the said commissioner will make his report 
 thereon with all convenient speed; and if any special questions 
 shall arise, the said commissioner is at liberty to state the 
 same to the court. 
 
 No. 286. Order of reference_ of a plea of former suit 
 
 pending. 
 
 {Caption, and title of cause as in No. 105, ante,^a^e 210.) 
 
 On filing a plea in this cause averring that there is a former 
 suit depending in this court for the same matters as are in- 
 volved in the present suit, it is therefore ordered that it be re- 
 ferred to J M D, a commissioner of this court, to look into the 
 bill and the plea in this cause, and the bill in the said plea al- 
 leged to have been exhibited by the complainant against the 
 defendant previous to the commencement of this suit, and into 
 the other pleadings and proceedings therein, and to report 
 whether the said plea is true. 
 
 No. 287. Order directing plea to stand for an answer. 
 
 {Caption, and title of cause as in No. 105, a.nte,page 210.) 
 
 The plea of the defendant D to the bill of complaint in 
 this cause having heretofore come on to be argued, and coun- 
 sel for the respective parties having been heard thereupon, it 
 is ordered that the said plea do stand for an answer, with lib- 
 erty to the complainant to except thereto. 
 
 No. 288. Order allowing the complainant to dismiss his bill. 
 
 {Caption, and title of cause as in No. 105, ante, page 210.) 
 
 The complainant applying to dismiss his bill in this cause, 
 on motion of Mr. , solicitor for the complainant, it is or- 
 dered that leave to dismiss the same be granted accordingly, 
 on the complainant paying to the defendant his costs in this 
 suit, to be taxed. 
 
MISCELLANEOUS FORMS. 787 
 
 Paying Money into Court — Dismissing Bill — New Parties, etc. 
 
 N'o. 289. Order to pay money into court. 
 
 [Caption, and title of oaiise as in Ifo. 105, ante, page 210.) 
 On reading and filing the bill and answer in this cause, and 
 
 on motion of Mr. , solicitor for the complainant, and on 
 
 hearing Mr. , solicitor for the defendant, in opposition to 
 
 said motion, it is ordered, that the defendant C D do, within 
 
 days from the date of this order, pay into the hands of 
 
 the clerk of this court, in trust in this cause, the sum of 
 
 dollars, admitted by the answer of the defendant to be due 
 from him; and that when such money is paid in it be depos- 
 ited by said clerk, in trust, in the Bank of , to the 
 
 credit of this cause, there to remain until the further order of 
 this court. 
 
 Wo. 290. Final decree dismissing Mil at the hearing. 
 
 {Proceed as in Wo. 108; &ntQ, page 215 to the *, and con- 
 tinue:') That the complainant's said bill of complaint be and 
 the same is hereby dismissed, with costs to the defendant, to 
 be taxed. 
 
 iV^o.291. Order for cause to stand over to add new parties. 
 
 {Caption and title of cause as in No. 105, ante, page 210.) 
 
 This cause corning on to be heard this day, and counsel for 
 both parties having been in part heard, and it appearing to 
 the court that E F and G H are necessary parties to this 
 cause, it is ordered that this cause do stand over, to the end 
 that the complainant may make the said E F and G H par- 
 ties thereto, either by amendment or supplemental bill, as he 
 maybe advised. 
 
 JTo. 292. Order for cause to stand over to supply proofs. 
 
 {Caption, amd title of cause as in No. 105, ante,^a^« 210.) 
 
 This cause coming on to be lieard this day, and counsel for 
 both parties having been in part heard; and it appearing to 
 the court that the complainant has omitted to introduce proof 
 of the death of E F, his intestate, it is ordered that this cause 
 do stand over, to the end that the complainant may examine 
 witnesses to prove the death of such intestate. 
 
788 MISCELLANEOUS FOEMS. 
 
 Interrogatories to Pa>rty in Contempt — ^Answer to Same. 
 
 No. 293. Interrogatories for the examination ofapa/rty in 
 contempt for not answering. 
 
 ( Title of cause as in No. — , post, page — .) 
 
 Interrogatories to be exhibited od the part of the 
 complainant, for the examination of C D, the de^ 
 fendant in this caiise, pursuant to an order made 
 
 in said cause on the — — day of , 18 — . 
 
 First. "Were you not, on or about the day of 
 
 last, or at any other and what time, duly served with a sum- 
 mons in the above entitled cause ? ^When and by whom and 
 how was such service made ? Answer this interrogatory fully 
 and particularly. 
 
 Second. Is not the writ of summons now shown to you, 
 the one served, and a copy of the same left with you ? Answer 
 fully. 
 
 Third. Were, etc. {Here insert such additional interrog- 
 atories as may he deemed necessary^ 
 
 Sol. for complainant. 
 
 No. 294. Answer to interrogatories in the last form, No. 293. 
 
 {Title of cause as in No. 295, post, page 789.) 
 
 The answer and examination of C D, the defendant 
 in this cause, to the interrogatories exhibited by 
 the complainant for his examination, pursuant to 
 an order of this court, made in said cause, on the 
 
 day of , 18 — . 
 
 To the first interrogatory, this defendant answers and says, 
 that, etc. 
 
 To the second interi ogatory, he answers and says, that, etc., 
 {and so on.) C D. 
 
 Sworn and subscribed to before me, this — — day of , 
 
 18—. 
 
 Master in Chancery. 
 
MISCELLANEOUS FORMS. 
 
 Commissioner's Report — Further Answer. 
 
 No. 295. Commissioner's report upon exceptions to answer 
 for insufficiency. 
 
 State of Michigan. 
 
 The Circuit Court for the County of . In chancery, 
 
 AB, 
 
 Complainant, 
 m. > 
 
 CD, 
 
 Defendant. 
 To the Circuit Court for the County of : . In Chancery. 
 
 In pursuance of an order of this court, made in the above 
 
 entitled cause, on the day of , 18 — , whereby it was 
 
 referred to me, a circuit court commissioner of this court, to 
 look into the. couiplainant's bill of complaint, the answer of 
 the defendant D, and the exceptions taken to said answer 
 by the complainant, and report whether said exceptions are 
 well taken or not. 
 
 I, the said commissioner, do hereby respectfully certify and 
 report, that having been attended by the counsel of the re- 
 spective parties, and having looked into said bill and answer, 
 and the exceptions taken thereto, and having duly considered 
 the -same, I find that the first and fourth exceptions to said 
 answer are well taken, and that the second, third and fifth ex- 
 ceptions are not well taken. 
 
 All of which is respectfully submitted. S W O, 
 
 Circuit Court Commissioner, County, Michigan. 
 
 JVo. 296. Further answer after exceptions wnd amendment. 
 
 {Title of court and cause.) 
 
 The further answer of the defendant C D to the 
 original bill of complaint; and the answer of the 
 same defendant to the amended bill of the com- 
 plainant. 
 This defendant, saving and reserving to himself the same 
 benefit of exception to the said original and amended bill, as 
 by his former answer to the said original bill, is saved and re- 
 SCTved for answer thereto, or so much, etc., {as in No. 66, ante, 
 page 135,) answers and says, etc. 
 
 And this defendant, in further answer to such original bill, 
 as to the matters of the first exception taken by the complain- 
 ant to his former answer, says, etc., {and so on.) 
 
 And this defendant, for further answer to the amendments 
 .made to such original bill, says, etc. 
 
790 MISCELLANEOUS FORMS. 
 
 Master's Report — Exceptions to Same. 
 
 Wo. 297. Master's repoTt as to sufficiency of defendanffs 
 examination. 
 
 {Title court and cause.) 
 
 To the Circuit Court for the County of . In Chancery. 
 
 In pursuance of an order of this court made in the above 
 
 entitled cause, on the day of , 18 — , whereby it 
 
 was referred to me, a commissioner of this court, to examine 
 the defendant C D, on interrogatories to the points wherein 
 his third answer to the bill in this cause was reported insuf- 
 ficient. I, the said commissioner, do hereby respectfully cer- 
 tify and report that, having been attended by the counsel for 
 the respective parties, and having caused the said C D to be 
 brought before me, I examined him upon oath upon the writ- 
 ten interrogatories filed for that purpose, and also viva voce, 
 and that his examination thereto is contained in a schedule 
 hereto annexed, marked A. And I do further certify and re- 
 port that, in my opinion, the said examination is sufficient. 
 
 All of which is respectfully submitted. 
 
 Dated at, etc. 
 
 HFo. 298. Exceptions to master's report on exceptions to 
 
 answer. 
 
 {Title of cowrt and cause.) 
 
 Exceptions taken by the complainant to the report of the 
 commissioner of this court, to whom it was referred, to report 
 as to the exceptions filed to the answer of the defendant C D. 
 
 Fi/rst. For that the said commissioner has, in and by his 
 said report, certified that, etc. {Here set out the words of 
 the report.) Whereas, the said commissioner ought to have 
 certified that the exceptions to the answer of the defendant 
 C D were well taken, and that the said answer of the defend- 
 ant C D was imperfect, insufficient and evasive in the par- 
 ticulars excepted to. 
 
 Second. For that the said commissioner has certified, etc. 
 {and so on.) 
 
 In all which particulars the report of the said commission- 
 er is erroneous, and the complainant appeals therefrom to the 
 
 judgment of this honorable court. 
 
 Sol. for Complainant. 
 
 No. 299. Agreement to submit the cause on written argu- 
 
 ments. 
 
 {Title of court and cause.) 
 It is stipulated and agreed that this cause be submitted to 
 
MISCELLANEOUS FORMS. 
 
 791 
 
 Submission of Cause — Abstract of Pleadings. 
 
 the court on written arguments, 
 to serve his argument within — 
 
 The complainant's counsel 
 
 .g>.iiiv,i.u ..iu^.i^^ daj'^s, and the defendant's 
 
 counsel to answer the same within days thereafter, and 
 
 the complainant's counsel to reply within days after the 
 
 defendant's argument shall have been served. 
 
 Dated, etc. 
 
 Sol. for complainant. 
 Sol. for defendant. 
 
 Wo. 300. Abstract of pleadings, etc, 
 
 {Title of court and cause.) 
 
 The bill in this cause was filed on the day of , 18 — -. 
 
 The answer was filed on the day of , 18 — ; and the 
 
 replication on the day of , 18. The following 
 
 witnesses were examined on the day of 18 — , be- 
 fore the master in chancery, in pursuance of an order of ref- 
 erence, made on the day of ,18 — , to wit: E 
 
 F and G H on the part of the complainant, and J K and 
 L M. on the part of the defendant. The following documents 
 were also produced, to wit, etc.: 
 
 The object of the bill is to procure a conveyance from the 
 defendant of the real estate described in the bill, and being 
 the, etc. (Sere insert the description.) 
 
 BILL 
 
 States that before complainant 
 purchased lot 7, etc., L M owned 
 the improvements, etc. 
 
 Lot 9 was leased to L M on, etc., 
 but by an agreement, etc. 
 
 On the — 
 parties, etc. 
 
 ■ day of , etc., both 
 
 Complainant paid, etc. 
 
 Usual charge of confederacy, etc. 
 
 Answer on oath prayed for. 
 
 Prayer for injunction; that defend- 
 ant may be decreed to execute con- 
 veyance; and for general relief. 
 
 REPLICATION 
 
 For complainant, E F testifies 
 that, etc. 
 
 G H testifies that, etc. 
 
 ANSWER 
 
 Admitted. But the defendant, on, 
 etc., purchased of L M all the im- 
 provements. 
 
 Denies, etc. 
 Substantially admitted; 
 
 Denied. 
 
 General traverse, and usual con- 
 clusion. 
 
 For defendant, J K testifies that, 
 
 L M testifies that, etc. 
 
792 MISCELLANEOUS FORMS: 
 
 Brief and Points — Motion on Cross-bill, 
 
 No. 301. Brief and points on Jieo/ring^ 
 {Title of court and cause.) 
 
 I. 
 
 The complainant has a perfect remedy at law whereby he 
 may avail himself of every ground of complaint set forth in 
 the bill. 
 
 Authorities cited. 
 
 II. 
 
 The court of chancery will not assume jurisdiction in this 
 case upon the ground of its being a bill of peace. Because, 
 
 First. The bill is filed only against a single party, which 
 party has neither commenced nor threatened to commence 
 multiplicity of suits, etc. 
 
 Second. The apprehensions of the complainant that, etc. 
 
 Third. That, etc. 
 
 Authorities cited. 
 
 III. 
 
 The defendants are authorized by the act of, etc., to pass the 
 ordinance in question. 
 Authorities cited. 
 
 lY. 
 
 The ordinance is a reasonable regulation of trade, etc. 
 Authorities cited. 
 
 No. 302." Notice of motion on crossMU, to stay proceedings 
 in original suit. 
 
 State of Michigait. 
 
 The Circuit Court for the County of . In Chancery. 
 
 AB, ■ " 
 
 Complainant, 
 
 CD, 
 
 Defendant. 
 
 CD, 
 
 Complainant, 
 vs. 
 AB, 
 
 Defendant. 
 
 Original Bill. 
 
 Cross-bill. 
 
MISCELLANEOUS FORMS. 7-93 
 
 Certificate of Counsel to Stay Proceedings — Staying Proceedings. 
 
 To T E S, Esq., 
 
 Solicitor for A B. 
 
 Sie: You will please to take notice that I intend to move 
 
 this honorable court, on the day of , A. D. 18 — , at 
 
 the opening of court on that day, or as soon thereafter as 
 counsel can be heard, for an order that the proceedings in the 
 original suit commenced by the ^.bove A B, be stayed until 
 the said A B shall have put in his answer to the cross-bill, 
 filed against him by C D, and for such other order or relief 
 as the court may think proper to grant; which motion will 
 be founded on the said cross-bill, and the {affidavits and) cer- 
 tificate of counsel thereto annexed. 
 
 Dated, etc. 
 
 Yours, etc., 
 
 V H L, Sol. for C D. 
 
 iTo. 303. Certificate of bounsel when stay of jprooeedings is 
 desired on filing cross-iill. 
 
 State of Michigan, 
 County of ■. 
 
 I hereby certify that I have perused the above and forego- 
 ing cross-bill and the original bill filed by the complainant 
 A B, against the said C I) as defendant in the above cause, 
 and am of the opinion that the foregoing bill is not intended 
 for delay, and that a stay of proceedings in the original suit 
 is necessary lor the attainment of justice between said parties. 
 Dated, etc., A M S, 
 
 Couuselor-at-law and in Chancery. 
 
 No. 304. Order staying proceedings m original suit. 
 {Title of court and ca^ises as in No. 302.) 
 
 At a session of said court held at the court house, in the 
 
 city of , on the day of , A. D. 18 — . 
 
 Present, Hon. A J M, 
 
 Circuit Judge. 
 
 On reading and filing the cross-bill of C D to the bill of com- 
 plaint of A B, and the affidavits thereto annexed, and on motion 
 of V II L, solicitor for the said C D, and upon hearing T R S, 
 solicitor lor the said A B, in opposition thereto, it is ordered, 
 that all furthe)' proceedings in the original suit commenced 
 by the said A B against the said C D> be stayed until the said 
 A B shall have put in his answer to the cross-bill filed against 
 him by said C D. 
 
794 MISCELLANEOUS FORMS. 
 
 Original and Cross-bill to be heard together. 
 
 Ifo. 305. Order that origi/nal and cross-Mil ie heard together. 
 
 {Title of court and cause, and caption as in last form.) 
 
 Oa reading and filing affidavits showing that both of the 
 above causes are at issue and ready for hearing, and on taction 
 of Y H L, solicitor for C D, the complainant in the cross- bill, 
 ordered that the said causes be brought on for hearing together; 
 provided, that the hearing on the original bill shall not be de- 
 layed by reason of any delay or neglect upon the part of the 
 complainant in said cross-bill. 
 
EEEATA. 
 
 When this work was going through the press, the manu- 
 script containing the following rules was mislaid, and hence 
 they do not appear in the appropriate chapter. They should 
 have been referred to in chapter IX, page 157. 
 
 EuLE 22. If the defendant demurs to the bill for want of 
 parties, or for any other defect that does not go to the equity 
 of the whole bill, the complainant 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; and in all cases of demurrer for causes not 
 within the former part of this rule, the" complainant's right 
 to amend, and the terms on which amendments may be per- 
 mitted, shall be in the discretion of the court. 
 
 Rule 23. Where the answer is excepted to as insufficient 
 and the defendant submits to answer further, or the answer 
 on reference is found insufficient, the complainant may amend 
 the bill of course, and without costs, at any time within ten 
 days after the defendant submits to answer any exceptions, 
 or after the confirmation of the commissioner's report, if the 
 defendant does not submit to answer any of the exceptions; 
 and the defendant shall answer the amendments and excep- 
 tions together. If a plea or demurrer to a bill be overruled, 
 the complainant may within ten days thereafter, amend his 
 bill of course, and without costs; and in all cases where the 
 complainant is permitted to amend his bill, if the answer has 
 not been put in, or a further answer is necessary, the defend- 
 ant shall have the same time to answer, after such amend- 
 ment, as he originally had. But no amendments of course 
 to injunction bills are to be allowed under this or the pre- 
 ceding rule, nor any amendments which are inconsistent with, 
 the sworn bill. 
 
 (795) 
 
INDEX. 
 
 ABATEMENT— 
 
 Pleas of, to jurisdiction of the court 101 
 
 Form of 106 
 
 To the person 102 
 
 Form of plea of coverture 107 
 
 Infancy without a prochein ami 107 
 
 Complainant an alien enemy 107 
 
 ABSTRACTS— 
 
 Case and pleadings for hearing 199 
 
 Form of 791 
 
 ACCOUNT— 
 
 Form of plea of, stated Ill 
 
 Between partners 361 
 
 Form of bill for 367 
 
 Form of decree for 369 
 
 Of receivers in creditor's suits 457 
 
 Of receivers of corporations 694-695 
 
 TaJring of... 727 
 
 ADDRESS— 
 
 Of a bill in chancery 13 
 
 Form of 45 
 
 ADMINISTRATOR— 
 
 Form of plea, never was, etc 107 
 
 May iile bill to enforce mechanic's lien 640 
 
 ADULTERY— 
 
 Ground for divorce 530 
 
 Circumstan' ial evidence of 530 
 
 Frame of bill charging 532 
 
 Form of hill for, by husband 533 
 
 Form of bill for, by wife, for alimony, etc 535 
 
 AFFIDAVITS— 
 
 Essentials of, for process of appearance 55 
 
 Of non-collusion, must be annexed to bill of interpleader 301 
 
 Of regularity 412 
 
 To be filed in proceeding to enforce mechanic's lien 634 
 
 Annexed to petition to dissolve corporations 688 
 
 Essentials of, generally 718 
 
 Of solicitor, to bills ol' costs 737 
 
 Forms of. 
 
 (797) 
 
798 INDEX. 
 
 AFFIDAVITS— Continued. 
 
 Of jurat to. 1 719 
 
 Of sei^ice of subpoena 55 
 
 For publication, non-residence of defendant, stating his place of 
 
 residence 58 
 
 Same, stating tbe place of residence is unknown 58 
 
 Same, stating that defendant can not be found 59 
 
 Same, stating that defendant is concealed, etc 59 
 
 Of service of order of appearance 61 
 
 To obtain attachment for not answering 65 
 
 Of non-appearance 69 
 
 On default 70 
 
 Of regularity 70 
 
 In support of motion to set aside default 75 
 
 Of defendant to demurrer in U. S. court 97 
 
 To an answer 136 
 
 For order to close proofs 170 
 
 To a biU of review 278 
 
 To a bill of interpleader 303 
 
 To a bill to perpetuate testimony 815 
 
 For an injunction on bill for account between partners 366 
 
 Of posting notices of mortgage sale .' 430 
 
 In support of petition for ahmony, pendente lite 676 
 
 To be attached to notice of mechanic's lien 635 
 
 Of service of notice of mechanic's lien 635 
 
 Of amount due for which mechanic's hen claimed 636 
 
 Of infant's signature 669 
 
 Of bill sworn to by solicitor 720 
 
 Of service of notice of taxation of costs 740 
 
 Of service of notice of appeal to Supreme Court 756 
 
 AGREEMENT— 
 
 Form of, to submit a cause on written arguments 790 
 
 Bills for specific performance of 336-358 
 
 ALIENS- 
 
 Form of plea, alien enemy 107 
 
 ALIMONY— 
 
 When allowed, pendente lite 573 
 
 How obtained 574-590 
 
 Form of. 
 
 Petition for, pendente lite 575 
 
 Affidavit in support of 576 
 
 Notice of motion for 577 
 
 (frder for 579 
 
 Hearing 577 
 
 Questions of guilt not considered 57'^ 
 
 Amount of allowance 578 
 
 How order is enforced 678 
 
INDEX. 799 
 
 ALIMONY— Continued. 
 
 jPorm of deiimndfor temporary 580 
 
 Proceedinga to compel payment of 580 
 
 Form- of. 
 
 Order to show cause why attachment should not issue 581 
 
 Attachment for contempt 582 
 
 Return of sheriff to 582 
 
 Interrogatories in proceedings for contempt 583 
 
 Answers to 58.3 
 
 Order of reference as to allowance of 584 
 
 Meport of commissioners as to amount of 585 
 
 Order confirming 586 
 
 Short form of decree for, without reference 586 
 
 Permanent alimony 586 
 
 Enforcement 589 
 
 Form of decree for 589 
 
 Orders granting are not final 747 
 
 AMENDMENTS TO BILLS— 
 
 Nature of 157 
 
 When to be made 159 
 
 When not allowed 161 
 
 Form of petition for leave to, after replication 161 
 
 Form of order grafting leave to, after demurrer 162 
 
 Form of , 162 
 
 Form of order granting leave to, after a plea to a part is al- 
 lowed 785 
 
 After plea 114 
 
 Answer to amended bill 139 
 
 To a creditor's bill 453 
 
 In mechanic's lien suits 641 
 
 On hearing, in Supreme Court 769 
 
 After demurrer 795 
 
 After insufficient answer 795 
 
 After overruling plea or demurrer 795 
 
 AMENDMENT OF ANSWER— 
 
 When proper 140 
 
 ANCIENT BILLS— 
 
 Form of 43 
 
 Account of. 42 
 
 ANSWERS TO A BILL— 
 
 Nature of 119 
 
 Exceptions to 123.145 
 
 {See Exceptions to an Answbb.) 
 
 Fraud, how alleged 123 
 
 Mode of answering 123 
 
 Affirmative relief not granted on 124 
 
 May be joint 125 
 
 Frame of 124 
 
800 INDEX. 
 
 ANSWERS TO A BILL— Continued. 
 
 Swearing to 126 
 
 May be sworn to before U. S. judge , 127 
 
 Waiver of oath to 128 
 
 Effect of sworn answer as evidence 129 
 
 Against co-defendant 129 
 
 • Of deceased ancestor 130 
 
 Admissions in 130 
 
 Of a corporation 131 
 
 Of infants, and insane persons 181 
 
 Coupled with demurrer 92 
 
 When a plea should be supported by 117 
 
 Allowing plea to stand for. 116 
 
 Demurrer to, not proper 93 
 
 When to be filed , 138 
 
 Amendment of 140 
 
 To an amended bill 139 
 
 To a supplemental bill 228 
 
 To a bill of revivor 249 
 
 To a bill of review 281 
 
 To a bill of discovery 293 
 
 To a biU of interpleader 305 
 
 To a bill to perpetuate testimony 317 
 
 To a cross-bin 333 
 
 To a bill to probate a foreign will 515 
 
 To bills to enforce a mechanic's Hen 649 
 
 , To petition to bar dower 776 
 
 Forms of. 
 
 Miscellaneous, of commencements, conclusions, etc 133 
 
 General frame of 135 
 
 Short 137 
 
 Infants by guardian ad litem 137 
 
 Statement in, claiming statute of frauds 1-j8 
 
 Conclusion, insisting on remedy at law 138 
 
 And disclaimer 143 
 
 To a part, and demurrer to residue 99 
 
 In support of a plea of release 110 
 
 Of owner to bill for mechanic's lien , 650 
 
 Setting up discharge of mechanic's lien 652 
 
 Setting up lien for materials 653 
 
 Affidavit to 136 
 
 APPEALS— 
 
 When allowed 746-750 
 
 How taken 750-760 
 
 Notice of 754 
 
 Motion to dismiss '^63 
 
 In partition suits ,.,.,.., 506 
 
 From probate of foreign wills : 519 
 
INDEX. 801 
 
 APPEALS— Continued. 
 
 In meohanio's lien suits 663 
 
 In proceedings to dissolve corporations 696 
 
 Prom an order of contempt 713 
 
 From orders of circuit court commissioner 727 
 
 Bond upon 751 
 
 ATTACHMENT— 
 
 To compel an answer 62 
 
 How obtained 64 
 
 Form of affidavit to 65 
 
 Form of order for 65 
 
 Form of order for, third answer insufficient 784 
 
 Form of, in contempt for not paying alimony 582 
 
 ATTACHMENT WITH PROCLAMATION— 
 
 Nature of, etc 65 
 
 ARGUMENT— 
 
 In Supreme Court ; 767-770 
 
 Brief to be finished 767 
 
 Form of brief 792 
 
 Of a demurrer to a bill in chancery 94 
 
 Of a plea to a bill in chancery ^14 
 
 Of exceptions to commissioner's renort 153 
 
 AWARD- 
 
 Specific performance of 343 
 
 BILLS IN CHANCERY— 
 
 Division of „ . 11 
 
 Constituent parts of 12 
 
 The address 13 
 
 Form of 45 
 
 The introduction 14 
 
 Form of 45 
 
 The premises, or stating part 15 
 
 Forms of 46 
 
 Certainty required 16-21 
 
 Exhibits 21 
 
 Must state the whole subject 22 
 
 And not too many subjects 22 
 
 Matters in litigation not divisible 22 
 
 Multifariousness 22-25 
 
 Scandal and impertinence 25 
 
 Scandal 25 
 
 Impertinence 26 
 
 The confederating part 27 
 
 Form of 47 
 
 The charging part 27 
 
 Form of 47 
 
 The jurisdictional clause 28 
 
 Form of 47 
 
 51 
 
802 INDEX. 
 
 BILLS IN CHANCERY— Continued. 
 
 Ilie interrogating part 29-31 
 
 . . Form of 48 
 
 . , The prayer for relief 31-32 
 
 Forpi of.,. ., 48 
 
 The prayer for process.. ., 33 
 
 Forms of...^. .* 48 
 
 Frame of .bill 33 
 
 . Signing of bills ....^... , 34 
 
 Swearing to bills 35 
 
 Parties to 37 
 
 Who should be made 37-39 
 
 How, described 39 
 
 Persons under disability 39 
 
 Interest ol 39 
 
 Joinder of 40 
 
 Want of 41 
 
 Misjoinder of 41 
 
 , Ancient bills 42-44 
 
 Form of 42 
 
 Account of 43 
 
 Motion to dismiss for want of prosecution 716 
 
 BILLS— 
 
 Forms of. 
 
 An ancient bill 42 
 
 Constituent parts of 45 
 
 Supplemental, for specific performance 222 
 
 Supplemental, against assignee of bankrupt 223 
 
 Original in the nature of a supplemental bill 233 
 
 To carry decree into execution 237 
 
 Of revivor, before decree 245 
 
 Of revivor, after decree 246 
 
 In the nature of a bill of revivor , 258 
 
 Of revivor and supplement 262 
 
 Of review, upon error of la w 276 
 
 Of review, upon newly discovered matter 277 
 
 Of discovery 287 
 
 Of interpleader 301 
 
 To perpetuate testimony 314 
 
 Cross-biU to a foreclosure suit 326 
 
 Cross-bill, in nature of a plea puis darrein continuance 328 
 
 For specific performance, vendee v. vendor 348 
 
 For specific performance, vendor v. vendee 349 
 
 For specific performance of a bond for a deed 350 
 
 For specific performance of contract for lease 352 
 
 For a dissolution of copartnership, etc 364 
 
 For an account of partnership dealings, etc 367 
 
 To redeem, by heirs of mortgagor 382 
 
INDEX. 803 
 
 BILLS— Continued. 
 
 To redeem from deed, intended as a mortgage 384 
 
 To redeem goods pledged as a security 386 
 
 To set aside decree of foreclosure, to redeem, etc 388 
 
 Of foreclosure 406 
 
 Of creditors, general 458 
 
 Of creditor, in aid of execution, etc 465 
 
 By creditor executrix, etc 468 
 
 For partition between heirs, subject to dower 484 
 
 Tor partition, etc 486 
 
 For partition and dower 488 
 
 For probate of tbreign will S15 
 
 For diyorce, on the ground of impotency 528 
 
 For divorce by husband, charging adultery . , 583 
 
 For divorce, by wife, charging adultery, etc 535 
 
 For divorce, charging conviction of crime 538 
 
 For divorce, charging desertion 540 
 
 For divorce, charging habitual drunkenness 543 
 
 For divorce, charging extreme cruelty 548 
 
 For divorce, charging cruelty, praying for an injunction 549 
 
 For divorce for failure to support 552 
 
 For separate maintenance , 593 
 
 To quiet title, and cancel deed 610 
 
 For we exeat. 615 
 
 To remove trustees, etc 619 
 
 For appointment of new trustees, etc 621 
 
 To restrain wastes, etc 625 
 
 For mechanic's hen 642 
 
 Cross-bill, for mechanic's lien 654 
 
 BILLS FOR DIVORCE— 
 
 Nature of 520 
 
 Causes for 522 
 
 Impotency at time of marriage 525-530 
 
 Form of hill charging 628 
 
 Adultery 630-537 
 
 Forms of hills charging 533-536 
 
 Conviction of crime 538 
 
 Form of hill charging 588 
 
 Desertion for two years 539 
 
 Form of hill charging 640 
 
 Habitual drunkenness 642 
 
 Form of hill charging 543 
 
 Extreme cruelty 545-551 
 
 Forms of hills charging 548 
 
 Failure to support 5ol 
 
 Form of hill charging 662 
 
 Jurisdiction of 523 
 
 Parties to 524 
 
804 INDEX. 
 
 BILLS FOR DIVORCE— Continued. 
 
 Frame of bill 524 
 
 Amendments to, must be verified , 160 
 
 Defenses to 560-563 
 
 Hearing and decree 563-573 
 
 Alimony and Expenses npon 578-590 
 
 BILLS IN THE NATURE OF SUPPLEMENTAL BILLS— 
 
 Original bil Is 231 
 
 When proper 231 
 
 Frame of 233 
 
 Form of 233 
 
 Proceedings upon 236 
 
 Bills to carry decrees into execution 236 
 
 Nature of. ... : 236 
 
 Form of 237 
 
 BILLS IN THE NATURE OF BILLS OF REVIVOR— 
 
 Nature and uses 255 
 
 Parties to 257 
 
 Frame of 257 
 
 Form of 258 
 
 Defenses to and proceedings upon 260 
 
 BILLS OF REVIVOR AND SUPPLEMENT— 
 
 Nature of, and when proper 261 
 
 Practice upon 262 
 
 Form of 262 
 
 BILLS OF REVIEW— 
 
 Nature of, and when proper 264 
 
 Parties to 270 
 
 Leave to file 271 
 
 Within what time to be brought 275 
 
 Form of 285 
 
 Defenses to 278 
 
 BILLS OF DISCOVERY— 
 
 Nature of, when proper 284 
 
 Frame and form of 286 
 
 Defenses to 289 
 
 Practice upon 294 
 
 BILLS OF REVIVOR— 
 
 Nature of 239 
 
 When proper 240 
 
 Against whom to be filed 243 
 
 Frame of 244 
 
 Form of.... 245 
 
 Defenses to 247 
 
 Replication 250 
 
 Order to revive 251 
 
 Hearing 252 
 
 EfFect of revivor 253 
 
INDEX. 805 
 
 BILLS RELATING TO PARTNERSHIP MATTERS— 
 
 Where a dissolution will be decreed 859 
 
 Account between partners 361 
 
 Appoifttment of a receiver 362 
 
 Forms of bills ; 362 
 
 BILLS OP INTERPLEADER— 
 
 Nature of, and when proper. 296 
 
 Form of. 300 
 
 Defenses to 304 
 
 Hearing and decree 308 
 
 BILLS TO PERPETUATE TESTIMONY— 
 
 Nature of the proceedings ; 311 
 
 Frame of the bill 311 
 
 Form of 314 
 
 FoTtn of affidavit to 315 
 
 Defenses and proceedings 316 
 
 Demurrer 316 
 
 Answer 317 
 
 Proceedings under the statute 317 
 
 Testimony, taking of 318 
 
 Notice of taking 318 
 
 How served 818 
 
 Notice waived. 319 
 
 Oath to witnesses 319 
 
 How examined , 319 
 
 Objections to testimony 320 
 
 How depositions certified to, 320 
 
 To whom depositions delivered 821 
 
 BILLS TO REDEEM— 
 
 Nature of 371 
 
 Deeds absolute on face of, when deemed a mortgage 372 
 
 Who may redeem 378 
 
 Within what time to be filed 374 
 
 Parties to.; 376-879 
 
 Complainants 376-377 
 
 Defendants 37S-379 
 
 Terms of redemption 379-381 
 
 Frame of biU 881-382 
 
 Forms of. 
 
 By heirs of mortgagor against mortgagee 382 
 
 Fi-om a deed^ intended as a mortgage 384 
 
 Goods deposited as a pledge 386 
 
 To set aside decree of foreclosure, and to redeem 3S8 
 
 Decrees 390-892 
 
 Form Df, for redemption 391 
 
 BILLS FOR SPECIFIC PERFORMANGE- 
 
 Nature of, and when proper 336-844 
 
 Parol contracts 844 
 
806 INDEX. 
 
 BILLS FOR SPECIFIC PERFORMANCE-Continued. 
 
 Parties to 345 
 
 Frame of bill 346-852 
 
 Tender 347 
 
 Forms of 348 
 
 Decree 353 
 
 Forms of 356 
 
 BILL TO PROBlTE A FOREIGN WILL— 
 
 When allowed 514 
 
 Parties 514 
 
 Bill and answer 515 
 
 • Form of hill 515 
 
 Defense 517 
 
 Testimony, commission to take 618 
 
 Decree and its effect 519 
 
 Effect of probate 519 
 
 Transcript to be filed in probate court 519 
 
 Appeal 519 
 
 BILLS TO FORECLOSE— 
 
 General nature of 893 
 
 When proper 394^898 
 
 Parties 398-403 
 
 Frame of bill 403-410 
 
 Forms of 406 
 
 Practice upon 410 
 
 Defenses to 414 
 
 Decree and sale 416-434 
 
 Surplus and deficiency 484r437 
 
 Installment due, proceedings upon 437-439 
 
 BILLS TO QUIET TITLE— 
 
 Nature of, and when proper 605-609 
 
 Forms of hill. 
 
 To quiet title, and cancel a deed 610 
 
 Form of decree to, and cancel deed j 611 
 
 BONDS— 
 
 By next friend of infants 666-667 
 
 By guardian, on sale of estates of infants and incompetents 673 
 
 Upon granting injunction 701 
 
 Filing of 704 
 
 For appearance of complainant, in contempt proceedings 583 
 
 For bill of defendant in ne exeat 616 
 
 On appeal to Supreme Court 751 
 
 Approval of 753 
 
 Forms of. 
 For costs, hy a non-resident 10 
 
 By next friend of infant. 666 
 
 For a deed, form of hill for specific performance of 350 
 
 On appeal to Supreme Court 751 
 
INDEX. - 807 . 
 
 BOOKS AND "WRITINGS— 
 
 Motion for the production of 82 
 
 Documents, etc., in hands of third persons 189 
 
 BRIEF ON ARGUMENT— 
 
 Of case and pleadings 199 
 
 Form of 791 
 
 And points at hearing 767 
 
 Form of: 792 
 
 To be furnished at hearing 767 
 
 CALENDAR-DOCKET— 
 
 Of circuit court, how made up, etc 199 
 
 Cause to be not'ced for first day of term 200 
 
 Forms of note of issue 201 
 
 Of Supreme Court 766 
 
 Re-arrangement 766 
 
 Motion docket 762 
 
 CHARGING PART— 
 
 Of a bUl in chancery 27 
 
 Form of 47 
 
 CHILDREN— 
 
 Custody of, in divorce suits 568 
 
 Legitimacy of, in divorce suits f 67 
 
 Custody and support of, in suits for maintenance 603 
 
 COLLUSION— 
 
 A bar to divorce 566 
 
 COMMENCEMENT OP A SUIT IN CHANCERY- 
 
 By bill 5 
 
 By information 5 
 
 Where commenced 6 
 
 Security for costs 9 
 
 Form of hands for. 
 
 By a non-resident 10 
 
 By an infant's next friend 666 
 
 commission- 
 To take deposition of non-resident witnesses 177 
 
 Forms. 
 
 Of petition for issuance of 178 
 
 Notice of application for 179 
 
 The commission I79 
 
 Return of Ig2 
 
 To make partition 49I 
 
 Appointment of 49I 
 
 To take testimony to probate foreign will 518 
 
 Of receivers 692 
 
 COMM ISSION OF REBELLION— 
 
 When granted, etc 66 
 
 Purposes of 66 
 
808 INDEX. 
 
 COMMISSIONERS— 
 
 To make partition 491 
 
 Form of decree directing appointment of SOS 
 
 Vacancies 491 
 
 Required to take an oath 491 
 
 Form of 610 
 
 Proceedings by 491 
 
 Fees of 492 
 
 Report of 492 
 
 Form of, making partition 509 
 
 Form of, that partition can not he made 510 
 
 Report set aside 492 
 
 Confiimation of. 493 
 
 Form of decree confirming 51 1 
 
 Partition by sale 495 
 
 Proceedings by, when ordered by court 495 
 
 Report of , 500 
 
 Conveyance by 500 
 
 Costs of 501 
 
 Security, taken by 502 
 
 COMMISSIONERS, CIRCUIT COURT- 
 
 Powers of, generally 724-726 
 
 To adjourn mortgage sale 422 
 
 To allow ne exeat 615 
 
 To grant injunctions 699 
 
 To act as master in chancery 725 
 
 To tax costs 735 
 
 When another may act 726 
 
 Proceedings before 726 
 
 Taking testimony 168-176 
 
 Extension of time for taking proofs 172 
 
 Taking accoimts 727 
 
 To dissolve corporations 688-689 
 
 Duties of on reference of accounts, in corporation proceedings . . 695 
 
 Appeal froin order of. 727-728 
 
 Reference to, special 190 
 
 Upon exceptions to answer 150 
 
 Of biUs to perpetuate testimony 318 
 
 Of foreclosure bills 411 
 
 In partition suits 490 
 
 Of creditor's bill 472 
 
 In divorce suits , 558 
 
 In suits for separate maintenance 596 
 
 To make allowance of alimony 598 
 
 In suits to dissolve corporations 695 
 
 In proceedings to bar dower of insane 776 
 
 Report, on exceptions to answer 151 
 
 Of testimony taken 190-191 
 
INDEX. 809 
 
 COMMISSIONERS, CIRCUIT COURT— Continued. 
 
 Of mortgage sale 425 
 
 Upon petition to bar dower of insane 777 
 
 Circuit judge sitting as, takmg proofs in open 'court 183 
 
 Forms. 
 
 Report, pro <!onfesso 71 
 
 Report of testimony taken 191 
 
 Caption of order hy 210 
 
 Deed upon sale 431 
 
 Notice of mortgage sale by 423 
 
 Report of sale 426 
 
 Report of evidence, and allowance of maintenance 597 
 
 Of allowance of ne exeat 615 
 
 0/ allowance of injunction 700 
 
 CONDONATION— 
 
 Effect of in divorce suits 560 
 
 CONFEDERATING PART OF BILL— 
 
 Nature of, and uses 27 
 
 ■Form of \ 47 
 
 CONTRACT— 
 
 -Specific performance of 336-858 
 
 Power ..-..-...;...; 344 
 
 Discharge of, in corporation proceedings 691 
 
 Forms of bills for , 348 
 
 CORPORATIONS— 
 
 Proceedings against 678-696 
 
 By a single shareholder 678 
 
 Jurisdiction of courts, over the officers of 679-681 
 
 Injunctions, when allowed 681 
 
 Sequestration of property of 681 
 
 Surrender of corporate rights 682 
 
 Insolvent, proceedings against 682-687 
 
 Injunctions, who may apply for 6S2 
 
 Receiver, appointment of 683 
 
 Maging stockholders parties 683 
 
 Making directors parties ■ 684 
 
 Bill against stockholders 684 
 
 Discovery, by corporation 685 
 
 By officers 685 
 
 Staying proceedings against, at law 686 
 
 Certain corporattoni5 excepied 686 
 
 Voluntary dissolution of 687-696 
 
 Who may apply for •. 687 
 
 Contents of application for 687 
 
 Affidavit to 688 
 
 Order to show cause 688 
 
 Publication of notice 688 
 
 Proceedings before commissioners 688 
 
810 INDEX. 
 
 CORPORATIONS— Continued. 
 
 When to be dissolved 689 
 
 Receivers upon 689 
 
 To give notice of their appointment 690 
 
 Debtor to account to 691 
 
 Power to settle controversies 691 
 
 To call meetings 691 
 
 To cancel subsistihg contracts 692 
 
 Commission of 692 
 
 Under control of court 694 
 
 To retain certain moneys 692 
 
 Accounts of 694.695 
 
 Order of payment of debts 692 
 
 Second dividend 693 
 
 Proceedings upon 693 
 
 Debts not exhibited 693 
 
 Distribution to stockholders 694 
 
 Duty of commissioners on reference 695 
 
 Certain, excepted 695 
 
 Suits not to abate 695 
 
 Discontinued 696 
 
 Appeal 696 
 
 Answer of, to a bill in chancery 131 
 
 CONTEMPTS— 
 
 Nature of 706-707 
 
 Proceedings by attachment 708 
 
 By order to show cause 709 
 
 Punishment and discharge 710-713 
 
 Order of conviction '. 711 
 
 Process of commitment 712 
 
 Sequestration 712 
 
 Effect of 712 
 
 Appeal 713 
 
 Proceedings in, to compel payment of alimony 580-584 
 
 Against defendant for non-appearance 62 
 
 Forms. 
 
 Demand for temporary alimony 580 
 
 Order to show cause why attachment should not issue 581 
 
 Attachment 582 
 
 Return of sheriff to 582 
 
 Interrogatories in proceedings for 583 
 
 Answer to 583 
 
 Order, when defendant admits contempt, that he answer with- 
 in specified time 779 
 
 For commitment, for disobeying order to answer 779 
 
 Order directing filing of interrogatories 780 
 
 Order of conviction, after examination 781 
 
 For sequestration 783 
 
INDEX. 811 
 
 COSTS— 
 
 When security for required, etc 9 
 
 Motion for 82 
 
 When awarded 733-734 
 
 Taxation of 735-740 
 
 Who may tax 735 
 
 Duty of taxing officer 737 
 
 Notice of 735 
 
 The bill of 735 
 
 Affidavits to 737 
 
 Re-taxation 737 
 
 In Supreme Court 771-774 
 
 Taxation of 772 
 
 Ke-taxation of 773 
 
 On exceptions to answer 153 
 
 On bills of discovery 294 
 
 On bills of interpleader 309 
 
 On foreclosure bills 403 
 
 On examinations upon creditor's bill 455 
 
 In partition suits 492.501 
 
 In divorce suits 570 
 
 In mechanic's lien suits 640.661 
 
 In infants' suits 664 
 
 On interlocutory proceedings, time for payment of 710 
 
 Fees of register on transfer of causes 728 
 
 Forms. 
 
 Of bond for, hy non-resident 10 
 
 By next friend of infant 666 
 
 On appeal 751 
 
 Of nil of 738 
 
 Of affidavit of service of notice of taxation 740 
 
 COVERTUEE— 
 
 Form of plea of 107 
 
 CREDITOR'S BILL— 
 
 When may be filed 440 
 
 When proper 441 
 
 On justices' judgment 443 
 
 In United States court 443 
 
 What may be reached by 444 
 
 Parties to 446 
 
 Complainants 446 
 
 Defendants 447 
 
 Priority and lien of 449 
 
 Frame of bill 451 
 
 In aid of execution 452 
 
 What should state 452 
 
 Prayer of 453 
 
 Verification of 453 
 
812 INDEX. 
 
 CREDITOR'S BILL-Coiitmued. 
 
 Amendments of 453 
 
 Swearing to.... 453 
 
 Proceedings, ex parte, defendant in default 453 
 
 Consent to take, as confessed" 454 
 
 Order upon . . , 455 
 
 Costs of examination 455 
 
 Other witnesses 455 
 
 When i-ule 105 to be served 455 
 
 Receivers in 456 
 
 Their powers 456 
 
 For several suits 456, 
 
 Security by 457 
 
 How to pay over moneys 457 
 
 For subsequent suits 457 
 
 Accounts of 457 
 
 Etfect of injunctions 457 
 
 Forms of. 
 
 Bill general 458 
 
 In aid of execution 465 
 
 Against executrix, etc 468 
 
 Of order appointing receiver 47l 
 
 Of order of reference 472 
 
 Of decree for paytnent of 472 
 
 Of decree setting aside fraudulent conveyance in aid of exe- 
 cution 474 
 
 Of consent to take hill as confessed 454 
 
 CRIME— 
 
 Conviction of, ground for divorce 538 
 
 Form of bill for divorce, on that ground 588 
 
 CROSS-BILLS— 
 
 Nature of S22 
 
 Frame of 325 
 
 Form of, to foreclose prior mortgage 326 
 
 Form of, in nature qf plea puis darrein continuance 32S 
 
 When to be filed 330 
 
 Leave to 331 
 
 Process upon 331 
 
 Defenses to - 332 
 
 Demurrer 332 
 
 Pleas 333 
 
 Answer 333 
 
 Proceedings upon 334 
 
 Form of, in suit to enforce mechanic' s lien 654-656 
 
 To be heard with original bill 204 
 
 CRUELTY— 
 
 Extreme, a ground for divorce ' 545-551 
 
 Form of bill by husband charging 548 
 
 Form of bill by wife charging, etc 549 
 
INDEX. 813 
 
 DE BENE ESSE— 
 
 Bill to perpetuate testimony 311 
 
 Proceedinga uader the statute 319 
 
 DECREES AND ORDERS— 
 
 Nature, uses and kinds of 206.718 
 
 Interlocutory 207 
 
 Pinal 208 
 
 Frame of 212 
 
 Constituent parts 210 
 
 Caption and title 210 
 
 The recitals 211 
 
 Ordering part 212 
 
 Declaratory part _. 212 
 
 By consent 211 
 
 Nunc pro tunc clause 213 
 
 Drawing of 214 
 
 Common- and special orders 214 
 
 Entitling in supplemental bills, etc 230 
 
 In revivor suits 251 
 
 In bills of interpleader 308 
 
 For specific performance 353 
 
 On bills to redeem ; 390 
 
 In foreclosure suits 416 
 
 In creditor's suits 472 
 
 In partition suits 505 
 
 On bills relating to partnerships 369 
 
 On bills to probate foreign wills 519 
 
 On bills for divorce 563 
 
 Alimony 589 
 
 On bills for separate maintenance 596 
 
 In suits for maintenance 603 
 
 In suits to quiet title 611 
 
 In mechanic's lien suits 656 
 
 Form!' of orders. 
 
 Of appearance or publication 59 
 
 For an attachment for not answering 65 
 
 Entering appearance, and for copy of bill 68 
 
 Pro confesso and of reference 70 
 
 To expunge scandal and impertinence 156 
 
 For leave to amend bill, after demurrer, etc 162 
 
 To take proofs 169 
 
 Closing proofs 170 
 
 Enlarging ijme to take proofs 172 
 
 Reference to commissioner to take proofs 191 
 
 Directing issue of fact to be tried by jury 196 
 
 Appointing receiver in partnership suits 369 
 
 Pro confesso, and reference in foreclosure suits 411 
 
 Confirming sale in foreclosure suits 430 
 
814 , INDEX. 
 
 DECREES AND ORDERS— Continued. 
 
 Appointingr receiver in creditor's suits 471 
 
 Reference to master in creditor's suits 472 
 
 Confirming partition by commissioners 510 
 
 For sale in partition suits 512 
 
 Confirming sale in partition 513 
 
 Divorce, pro confesso, custody of children, etc 570 
 
 Divorce, upon pleadings and proofs 571 
 
 Divorce, upon verdict of jury 572 
 
 For temporary alimony 579 
 
 To show cause for not paying 581 
 
 Of reference to as to 584 
 
 Confirming commissioner's allowance of 586 
 
 For permanent 589 
 
 For separate maintenance 600 
 
 To quiet title and cancel deed 611 
 
 Allowing mechanic's lien, and for sale 657 
 
 Allowing mechanic's lien, reserving adjustment 658 
 
 Allowing mechanic's lien, adjusting claims, etc 659 
 
 Appointing next friend of infant 666 
 
 Guardian ad litem 670 
 
 Making appointment absolute 672 
 
 That defendant admitting contempt, answer 779 
 
 For commitment for disobeying order to answer 779 
 
 Directing filing of interrogatories in contempt 780 
 
 Convicting of contempt after examination 781 
 
 To refer second or third answer on old exceptions 782 
 
 Por-sheriff to act as sergeant-at-arms 782 
 
 For sequestration 783 
 
 Reference, defendant not submitting to answer exceptions 784 
 
 For further answer 784 
 
 For attachment, third answer insufiScient 784 
 
 To amend bill after plea to part is allowed 785 
 
 Of reference to commissioner 785 
 
 Reference of plea of former suit pending 786 
 
 Directing plea to stand for answer 786 
 
 Allowing complainant to dismiss his bill 786 
 
 To pay money into court 787 
 
 Dismissing bill at hearing 787 
 
 Cause to stand over to add new parties 787 
 
 to supply proofs 787 
 
 Interrogatories to one in contempt 784 
 
 To stay proceedings, on case bill being filed 793 
 
 That original and cross-bills be heard together 794 
 
 DEEDS. 
 
 Bond for, specific performance of 350 
 
 Upon mortgage foreclosure sale 422 
 
 Bill to cancel, and quiet title 609 
 
 Certified copy of record of, to be used as evidence 189 
 
INDEX. 815 
 
 DJiFAULTS— 
 
 When may be taken, and how 68 
 
 Effect of 72 
 
 Right of defendant after 73 
 
 Setting aside 74 
 
 Motion to 74 
 
 Form of affldrwit in support of 75 
 
 DEFENSES TO A SUIT— 
 
 Proceedings by defendant, previous to putting in answer 79 
 
 Exceptions to bill for scandal and impertinence 80 
 
 Form of exceptions 81 
 
 Motion for thn production of papers, etc 82 
 
 Motion for security for costs 82 
 
 Different sorts of defenses .' 83 
 
 Demurrer 84^99 
 
 Plea 99-119 
 
 Answer 119-140 
 
 Disclaimer 141-143 
 
 To a supplemental bill 2^6 
 
 To a bill of revivor 247 
 
 To a bill in the nature of a bill of revivor 260 
 
 To a bill of review 278 
 
 To bills of discovery 289 
 
 To bills of interpleader 304 
 
 To bills to perpetuate testimony 316 
 
 To cross-bills 332 
 
 To bill to foreclose mortgages 414 
 
 To a bill to probate a foreign will 517 
 
 To bills for divorce 560-563 
 
 To bills for separate maintenance 595 
 
 To mechanic's lien suits 649 
 
 DEMURRER— 
 
 ' Nature and uses of 84 
 
 Where it lies 88 
 
 General (90 
 
 Special 90 
 
 Several causes of 91 
 
 Separate 91 
 
 Speaking 91 
 
 Ore tenus 91 
 
 Coupled with answer 92 
 
 To plea or answer not tolerated 93 
 
 When to be filed 93 
 
 Hearing of 94 
 
 Effect of sustaining 94 
 
 Of overruling 94 
 
 To a supplemental bill 226 
 
 To a bill of revivor ' 248 
 
 To a bill of review 280 
 
816 INDEX. 
 
 DEMURRER— Continued . 
 
 To a bm of discovery 289 
 
 To a bill of interpleader ; . . 304 
 
 To a bill to perpetuate testimony 316 
 
 To a croi3s-bill ., 332 
 
 Forms of. 
 
 General frame of 95 
 
 Short 96 
 
 For want of equity 97 
 
 For multifariousness 97 
 
 For want of parties 98 
 
 For want of privity 98 
 
 To bill of discovery, etc 98 
 
 That complainant shows no interest. . .■ 99 
 
 To part of a bill 99 
 
 To part of bill, coupled with answer , 99 
 
 To supplemental bill 227 
 
 To a bill of review 282 
 
 To a bill of discovery, no interest shown 291 
 
 To a bill of discovery, want of privity 291 
 
 To a bill of interpleader, want of affidavit 304 
 
 To a bill of interpleader, showing no right in defendant 305 
 
 To a bill of interpleader, showing, no right in complainant 305 
 
 In the United States Court 96 
 
 Certificate to counsel to 97 
 
 Affidavit of defendant to 97 
 
 DEPOSITIONS— 
 
 Of non-residents 177 
 
 How obtained 177 
 
 Forms of procedure. 
 
 Petition that commission issue 179 
 
 Notice of application for 179 
 
 Commission to take , 179 
 
 Instructions for taking 180 
 
 Oath, affirmation, caption, etc 181 
 
 Manner of taking, certifying and returning 182 
 
 In proceedings to perpetuate testimony '318 
 
 DESERTION— 
 
 A ground for divorce 539 
 
 Form of bill on that ground 540 
 
 DISCLAIMER- 
 
 Nature of 141 
 
 Form of 142 
 
 Form- of ansu'er, and 143 
 
 DISCOVERY, BILLS OF— 
 
 Nature of, and when proper 284 
 
 Frame of 286 
 
INDEX. 817 
 
 DISCOVERY, BILLS OF— Continued. 
 
 Form of 287 
 
 Defenses to 289 
 
 Demurrer to 289 
 
 Form of, where defendant has no interest 291 
 
 Form of, for want of privity 291 
 
 Plea to 292 
 
 Form of action at late pending, etc 292 
 
 Form of, that discovert/ would compel betrayal of confidence 
 as solicitor 293 
 
 Answer 293 
 
 Practice upon, generally 294 
 
 Form of demurrer to, defendant could be a witness 98 
 
 DISCOVERY— 
 
 By a corporation 685 
 
 By officers of a corporation 685 
 
 DISSOLUTION— 
 
 Of injunctions 705 
 
 Of corporations 687-696 
 
 DIVORCE, BILLS FOR— 
 
 Nature of 520 
 
 Causesfor 522 
 
 Jurisdiction of, and where commenced 523 
 
 Complainant must be resident, etc 523 
 
 Parties to 524 
 
 Frame of bill 524 
 
 Natural impotency at time of marriage • 525-530 
 
 Form of bill, on that ground 628-580 
 
 Adultery 530-537 
 
 Circumstantial evidence of 530-532 
 
 Frame of bill charging- 632 
 
 Form of bill for, by husband 633 
 
 Form of bill for, by wife, for alimony, etc 535 
 
 Conviction of crime '. 538 
 
 Form of bill on tha>t ground 538 
 
 Desertion for two years 539 
 
 Form of bill on that ground : 540 
 
 Habitual drunkenness 642 
 
 Form of bill an that ground, etc 643 
 
 Extreme cruelty 545-551 
 
 Form of bill, on that ground, by husband 548 
 
 Form of bill, on that ground, by wife, injunction, etc 549 
 
 Failure to support 551 
 
 Form of bill on that g-rtmnd 552 
 
 Divorces granted in another State 555 
 
 Suit to annul marriage 55.5 
 
 Suit to affirm marriage 55g 
 
 Void marriages 555 
 
 52 
 
818 INDEX. 
 
 DIVORCE, BILLS FOR— Continued. 
 
 Reference to take proofs 558 
 
 Injunctions in 558 
 
 Defenses to ■ 560-563 
 
 Condonation 560 
 
 Recrimination , 562 
 
 Other defenses 561 
 
 Cross-bills 563 
 
 Hearing and decree 563-573 
 
 Trial by jury , 563 
 
 Forming an issue for 563 
 
 Form of order directing, etc 564 
 
 Proofs .' 564 
 
 Decree 566 
 
 Dower, wife entitled to 566 
 
 Children, legitimacy , . ; 567 
 
 Custody of, pendente lite 568 
 
 Restoration of property to wife , 569 
 
 Cohabitation after. 570 
 
 Forms of decrees for. 
 
 Pro confesso, with custody of children 570 
 
 Upon pleadings and proof s 571 
 
 On ground of cruelty, upon verdict, etc 572 
 
 Alimony and expenses 573-590 
 
 Pendente lite 573-586 
 
 How obtained .- '. 574 
 
 Form of. 674 
 
 Petition for 575 
 
 Affidavit in support of 576 
 
 Notice of motion for 577 
 
 Hearing 577 
 
 Questions of guilt not considered 577 
 
 Amount of allowance 578 
 
 How order enforced 578 
 
 Form of order for 579 
 
 Form of demand for 580 
 
 Proceedings to compel payment of 580-586 
 
 Forms for. 
 
 Order to show cause why attachment should not issue 581 
 
 Attachment 582 
 
 Sheriff^s return of 582 
 
 Interrogatories, for contempt 583 
 
 Answers to 583 
 
 Order of reference as to amount. , • 584 
 
 Report of master as to 585 
 
 Order confirming 586 
 
 Order allowing, etc 586 
 
 Permanent, allowance of 586-590 
 
INDEX. 819 
 
 DIVORCE, BILLS FOR— Continued. 
 
 When gfranted, and how 586 
 
 Enforcements of orders 589 
 
 Form ofdeofeefor 589 
 
 DOWER— 
 
 Wife entitled to in divorce suits 566 
 
 Sale of in partition suits 498 
 
 Investment of proceeds of, where estate is of 499 
 
 How satisfied in sale of infant's estates 676 
 
 Of insane persons 775-778 
 
 Proceedings to bar 775-778 
 
 Where proper 775 
 
 Petition for 775 
 
 What to contain 775 
 
 Appearance and answer of wife 776 
 
 Taking proofs 776 
 
 Commissioner's report upon 777 
 
 Action upon 777 
 
 Sale by guardian 777 
 
 Disposition of proceeds 778 
 
 DRUNKENNESS, HABITUAL— 
 
 A ground for divorce 542 
 
 Form of hill on that charge 543 
 
 EQUITY— 
 
 General principles of pleading of 3 
 
 Form of demurrer for want of. 97 
 
 EXCEPTIONS— 
 
 To report of master in chancery 192 
 
 Form of.. 192 
 
 Hearing upon '. 201 
 
 EXCEPTIONS TO ANSWER— 
 
 Nature of : 145 
 
 For insufficiency 145 
 
 In what cases they lie 145 
 
 How taken 146 
 
 For scandal and impertinence 148 
 
 What is 148 
 
 Rules relating to 149 
 
 Form of, for insufficiency 155 
 
 For scandal and impertinence 155 
 
 Form of order to expunge scandal, etc. 
 
 When to be filed 155 
 
 EXCEPTIONS TO A BILL— 
 
 When they may be taken, etc 80 
 
 Form of 81 
 
 EXECUTION— 
 
 Form of bill in aid of i 465 
 
 Form of decree upon 474 
 
 For deficiency in mortgage sale 486 
 
820 INDEX. 
 
 EXECUTORS— (see Administrators.) 
 EXECUTRIX— 
 
 Form of creditor's hill against ..,. , .... , 468 
 
 FEIGNED ISSUES— TRIALS BY JURIES- 
 
 Nature of 194 
 
 Form of order directing an issue of fact to he tried hy ajwy. .. 196 
 
 Drawing up and settling 197 
 
 FELONY— 
 
 Conviction of, a ground for divorce ._,. 538 
 
 Form of hill for divorce on that ground 538 
 
 FORECLOSURE OF MORTGAGES— 
 
 Generalnature of 393 
 
 When proper 394-398 
 
 Parties •. 398-403 
 
 Complainants 398 
 
 Defendants ." 399 
 
 Frame of bill 403-410 
 
 Form of bills. 
 Mortgagee against mortgagor 406 
 
 Practice upon 410 
 
 Lis pendens 410-414 
 
 Reference to compute amount due 411 
 
 Affidavit of regularity 412 
 
 Hearing 414 
 
 Defenses to 414 
 
 Decree- and sale 416-434 
 
 Form of decree 419 
 
 ^ Sale of premises 421 
 
 Deed upon _. 422 
 
 Form of 431 
 
 Adjournment of. 422 
 
 Form of notice of. 423 
 
 Form of affidavit of posting 430 
 
 By parcels 424 
 
 Enrollment of decree ., 424 
 
 Form of certificate of '. 425 
 
 Report and confirmation of. 425 
 
 Form of commissioner's report 426 
 
 Form of order confirming 430 
 
 Re-opening and re-sale 432 
 
 Writ of assistance 433 
 
 How obtained 434 
 
 Proceeds, when brought into court 434 
 
 How disposed of ..,. 435 
 
 Surplus and deficiency 434-437 
 
 Execution for deficiency 436 
 
 How obtained ,. • 436 
 
 Answer to the amplication for 437 
 
INDEX. 821 
 
 FORECLOSURE OF MORTGAGES— Continued. 
 
 Installment due, proceedings upon 437-439 
 
 When bill dismissed 437 
 
 When proceedings to be stayed 437 
 
 Reference 438 
 
 Default subsequent to decree 438 
 
 Premises, entire sold 438 
 
 Application for proceeds when. 439 
 
 Form of cross-bill by first mortgagee 326 
 
 Form of bill to set aside decree of, and to redeem 388 
 
 FORMER MARRIAGE— 
 
 Renders marriage void, etc 556 
 
 FORMER SUIT PENDING— 
 
 FM-m of plea of 108 
 
 Form of order of reference upon 786 
 
 fraud- 
 How alleged in answer 123 
 
 In verdict, a ground for an injunction 703 
 
 FORMS— 
 
 Bond for costs. 
 
 No. 1. By a non-resident complainant 10 
 
 Of ancient bill. 
 
 No. 2. Ancient biU 42 
 
 Bill in chancery. 
 
 Constituent parts of 45 
 
 Subpcena, 
 
 No. 3. Chancery subpoena 51 
 
 No. 4. Officer's return of service 54 
 
 No. 5, Affidavit of service 55 
 
 Affidavits for publication. 
 
 No. 6. Non-residence of defendant, stating residence 58 
 
 No. 7. Non-residence of defendant, residence not known 58 
 
 No. 8. That defendant can not be found 59 
 
 No. 9. That defendant is concealed within this State 59 
 
 Order. 
 
 No. 10. Of appearance, or publication 59 
 
 No. 11. Short form, of publication 60 
 
 Affidavit. 
 
 No. 12. Proof of service of order of appearance 61 
 
 No. 13. For an attachment for not answering 65 
 
 Order. 
 
 No. 14. For attachment for not answering 65 
 
 No. 15. Entering appearance, and for copy of the bill 68 
 
 No. 16. Of non-appearance 69 
 
 No. 17. On default 70 
 
 No. 18. Of regularity 70 
 
 Order. 
 
822 INDEX. 
 
 FOE.MS— Continued. 
 
 No. 19. Pro confesso, and of reference 70 
 
 Commissioner'' s report. 
 No. 20. Pro confesso divorce 71 
 
 Affidavit. 
 
 No. 21. In support of motion to set aside default 75 
 
 Petition. 
 No. 22. To set aside decree by defendant not personally notified. 77 
 
 Excevtions. 
 No. 23. To a bill for impertinence or scandeu 81 
 
 Demurrer. 
 
 No. 24. General frame of 95 
 
 No. 25. Shortformof 96 
 
 No. 26. Certificate of counsel to, in II. S. Court 97 
 
 No. 27. Affidavit of defendant to, in U. S. Court 97 
 
 No. 28. Forwantof equity 97 
 
 No. 29. For multifariousness '. 97 
 
 No. 30. For want of parties 98 
 
 No. 31. For want of privity 98 
 
 No. 32. To a bill, where defendant could be examined 9S 
 
 No. 33. Where complainant has no interest 99 
 
 No. 34. To a part of the bill 99 
 
 No. 35. To a part, with answer to residue 99 
 
 Plea. 
 
 No. 36. Commencement and conclusion to whole bill 105 
 
 No. 37. Commencement and conclusion of, to part of bill 106 
 
 No. 3S. In abatement to jurisdiction of the court 106 
 
 No. 39. Of coverture of the complainant 107 
 
 No. 40. Of infancy without a prochein ami 107 
 
 No. 41. That defendant never was administrator 107 
 
 No. 42. That complainant is an alien enemy 107 
 
 No. 43. Of want of proper parties 108 
 
 No. 44. Former suit pending 108 
 
 No. 45. Statute of limitations 109 
 
 No. 46. Plea of release, supported by answer 110 
 
 No. 47. Stated account Ill 
 
 No. 48. To a part, answer to residue 112 
 
 Answers. 
 
 No. 49. Title of, by one defendant 133 
 
 No. 50. Title of, joint and several 133 
 
 No. 51. Title of, by one of several 133 
 
 No. 52. Title of, to amended bill 133 
 
 No. 53. Title of, exceptions taken and bill amended 133 
 
 No. 54. Title of, to a supplemental bill 133 
 
 No. 55. Title of, amended answer 133 
 
 No. 56. Title of, by guardian ad litem 133 
 
 No. 57. Introduction of, by one defendant 134 
 
 No. 58. Introduction of, by several defendants 134 
 
INDEX. 823 
 
 FORMS— Continued. 
 
 No. 69. When defendant admits a statement 134 
 
 No. 60. When defendant admits the statement of a written in- 
 strument 134 
 
 No. 61. Qualified admissions in 135 
 
 No. 62. When defendant is ignorant of statements of bill 13o 
 
 No. 63. Statements in joint answer 135 
 
 No. 64; When one of two deny allegations 135 
 
 No. 6.5. Where several are ignorant of all 'gations o. bill 135 
 
 No. 66. General frame of 135 
 
 No. 67. Affidavit to 136 
 
 No. 68. Short form of 137 
 
 No. 69 Of infant by guardian ad litem 137 
 
 No. 70. Statement, claimi 'g benefit of statute of frauds 138 
 
 No. 71. Conclusion of, insisting that there is a remedy at 
 
 law 138 
 
 Disclaimer. 
 
 No. 72. General 142 
 
 No. 73. Answer and 143 
 
 Exceptions to answer. 
 
 No. 74. For insufficiency 155 
 
 No. 75. For scandal and impertinence 155 
 
 Order. 
 
 No. 76. To expunge scandal and impertinence from an answer... 156 
 
 Petition. 
 
 No. 77. To file amended bill after replication 161 
 
 Order. 
 
 No. 78. To amend bill, after demurrer 162 
 
 Amendment. 
 
 No. 79. To bill 162 
 
 Replication. 
 
 No. 80. General 166 
 
 Proofs hefore commissioner. 
 
 No. 81. Order to take 169 
 
 No. 82. Notice of order to take 170 
 
 No. 83. Affidavit for order to close 170 
 
 No. 84. Order closing 170 
 
 No. 85. Notice to commissioner of order closing 171 
 
 No. 86. Notice to solicitor of order closing 171 
 
 No. 87. Notice of examinations 172 
 
 No. 88. Order enlarging time to take 172 
 
 No. 89. General frame of 176 
 
 No. 90. Certificate of commissioner to, on filing 177 
 
 Commission to take testimony. 
 
 No. 91. Petition to register for issuing of 178 
 
 No. 92. Notice of application for 179 
 
 No. 93. Frame of 179 
 
 No. 94. Instructions to commissioners annexed io 180 
 
824 INDEX. 
 
 FORMS— Continued. 
 
 No. 95. Oathin 181 
 
 No. 96. Affirmation in 181 
 
 No. 97. Caption to 181 
 
 Order. 
 No. 98. Of reference to commissioner to taJre proofs 191 
 
 Beport. 
 
 No. 99. Of commissioner, of testimony 191 
 
 No. 100. Objections to, commissioners 192 
 
 No. 101. Exceptions to, commissioners 192 
 
 Order. 
 No. 102. Directing issue of fact, be tried by jury 196 
 
 Notice.- 
 
 No. 103. Of hearing 198 
 
 No. 104. Of issue 201 
 
 Decree or order. 
 
 No. 105. Caption of in circuit court 210 
 
 No. 106. Caption of order by commissioner 210 
 
 No. 107. Recital of 211 
 
 No. 108. General, of an order 215 
 
 No. 109. General, of a decree 215 
 
 No. 110. General, of a decree or order 216 
 
 Bills supplemental. 
 
 No. 111. For specific performance 222 
 
 No. 112. Against assignee of bankrupt 223 
 
 No. 113. Petition for leave to file 225 
 
 No. 114. Demurrer to 227 
 
 No. 115. Plea to 228 
 
 No. 116. Original biU in the nature of 283 
 
 Bills. 
 
 No. 117. To carry decree into execution 237 
 
 No. 118. Of revivor before decree 245 
 
 No. 119. Of revivor after decree 246 
 
 Order. 
 No. 120. For revivor 251 
 
 Bill. 
 
 No. 121. In the nature of revivor 258 
 
 No. 1'22. Of revivor and supplement 262 
 
 Bill of review. 
 
 No. 123. Petition to file for errors of land 273 
 
 No. 124. Petition to file upon dicovery of new matter 274 
 
 No. 125. Order for leave to file 275 
 
 No. 126. Of bili, upon error in law 276 
 
 No. 127. Of bill, upon discovery of new matter 277 
 
 No. 128. Affidavit to, on discovery of new matter 278 
 
 No. 129. Of plea to 282 
 
 No. 130. Of demurrer to 282 
 
 Bill of discovery. 
 
INDEX. 825 
 
 FORMS— Continued. 
 
 No. 131. To discover title in aid of defense 287 
 
 No. 1.32. Demurrers to, where defendant has no interest 291 
 
 No. 133. Demurrers to, for want of privity 291 
 
 No. 134. Plea to, that action at law is pending 292 
 
 No. 135. Plea to, that a discovery would compel defendant to be- 
 tray confidence as solicitor 293 
 
 Bill of interpleader. 
 
 No. 136. Of bill 301 
 
 No. 137. Affidavit to annex to 305 
 
 No. 138. Demurrer to, for want of affidavit .304 
 
 No. 139. Demurrer to, for not showing claim of rigrht 305 
 
 No. 140. Demurrer to, for not showing right in complainant 305 
 
 No. 141. Order for Injunction upon 306 
 
 No. 142. Interlocutory decree upon, of reference 310 
 
 Bills to perpetuate testimony. 
 
 No. 143. General form of 314 
 
 No. 144. Affidavit to be attached to .... , 316 
 
 Cross-hills. 
 
 No. 145. To foreclosure suit. . . .' 826 
 
 No. I46.''ln nature of plea, puis darrein 328 
 
 Bills for specific performance. 
 
 No. 147. Of written agreement, vendee ». vendor 348 
 
 No. 148. Of written agreement, vendor 41. vendee 349 
 
 No. 149. On a boind, for deed, vendee ».. vendor 350 
 
 No. 150. On agreement for lease, vendee «. vendor 352 
 
 Decree. • 
 
 No. 151. For a reference as to the title of a vendor 356 
 
 No. 152. Interlocutory, foran account 356 
 
 No. 153. Final, for a specific performance 357 
 
 Bills relating to partnerships. 
 
 No. 154. For dissolution of, and for injunction 364 
 
 No. 155. Affidavit to, to obtain injunction 366 
 
 No. 156. For account and injunction 367 
 
 No. 157. Order appointing receiver upon 369 
 
 No. 158. Decree for .an account of 36'j 
 
 No. 159. Final decree for dissolution 370 
 
 Bills to redeem.. 
 
 No. 160. By heirs-at-law of mortgagor v. mortgagee. 382 
 
 No. 161. From a deed absolute on face, intended as mortgage. . . 384 
 
 No. 162. Goods pledged as security for money lent 386 
 
 No. 163. Set aside decree of foreclosare, etc., by heirs-at-law of 
 
 mortgagor v. mortgagee 388 
 
 No. 164. Decree for redemption 391 
 
 Bills to foreclose. 
 
 No. 165. Bill of foreclosure 406 
 
 No. 166. Notice lis pendens, upOn 410 
 
 No. 167. Order pi-o eonfesso and reference 411 
 
826 INDEX. 
 
 FORMS— Continued. 
 
 No. 168. Decree of foreclosure and gale, pro eonfesso 419 
 
 No. 169. Notice of chancery sale • 423 
 
 No. 170. Certificate of enrollment , 425 
 
 ITo. 171. Commissioner's report of sale 426 
 
 No. 172. Order confirming sale 430 
 
 No. 173. Affidavit of posting notices 430 
 
 No. 174. Commissioner's deed 431 
 
 Creditor's bill. 
 
 No. 175. Consent that biU be taken as confessed 454 
 
 No. 176. General form of 458 
 
 No. 177. Bill in aid of execution to remove a fraudulent convey- 
 ance 465 
 
 No. 178. By creditor against executrix of a deceased debtor 468 
 
 No. 179. Order appointing receiver upon 471 
 
 No. 180. Order referring to master, to examine defen«»nt and 
 
 witnesses 472 
 
 No. 181. Decree that debt may be paid by receiver 472 
 
 No. 182. Decree setting aside fraudulent conveyance in aid of 
 
 execution ;... 474 
 
 Partition. 
 No. 183. Bill for, between two heirs subject to widow's dower. . . 484 
 
 No. 184. BUI for, generally 486 
 
 No. 185. Bill for, and dower 488 
 
 No. 186. Decree for 508 
 
 No. 187. Report of commissioners, making 509 
 
 No. 188. Of- oath to commissioners upon 510 
 
 No. 189. Report that premises are not susceptible of division. . . 610 
 
 No. 190. Decree confirming report of commissioners upon 511 
 
 No. 191. Decree for sale of premises upon 512 
 
 No. 192. Decree confirming sale in 513 
 
 Probate of foreign will. 
 No. 193. Bill for 515 
 
 Bills for diiorce. 
 
 No. 194. Bill for, on ground of impotenc> 528 
 
 No. 195. BUI for, by husband, charging adultery 533 
 
 No. 196. By wife, charging adultery, praying for alimony and 
 
 custody of chUdren 535 
 
 No. 197. Bill for, charging conviction of crime 538 
 
 No. 198. BUI for, for desertion 540 
 
 No. 199. Bill for, charging drunkenness, praying for custody of 
 
 children, alimony, etc 543 
 
 No. 200. BUI for, charging . extreme cruelty 548 
 
 No. 201. Bill for, cliarging cruelty and praying for an injunc- 
 tion, etc , 549 
 
 No. 202. Bill for, charging failure to support 552 
 
 No. 203. Order directing issues of fact to be tried by jury in di- 
 vorce suit 564 
 
INDEX. 827 
 
 FORMS— Continued. 
 
 No. 204. Decree of, pi'o confesso, custody of children, etc 570 
 
 No. 205. Decree of, upon pendings and proofs 571 
 
 No. 206. Decree of, upon verdict of jury 572 
 
 Alimoni/. 
 
 No . 207. Petition for, pendente lite, and expenses 575 
 
 No. 208. Affidavit in support of 576 
 
 No. 209. Notice of motion for. 577 
 
 No. 210. Order for, temporary 579 
 
 No. 211. Form of demand for 580 
 
 No. 212. Order to show cause, for not paying 581 
 
 No. 213. Attachment for contempt, for not paying 582 
 
 No. 214. Return of, by sheriif 582 
 
 No. 215. Interrogatories in proceedings for 583 
 
 No. 216. Answer to interrogatories 583 
 
 No. 217. Order of reference as to alimony 584 
 
 No. 218. Report of commissioner as to allowance of 585 
 
 No. 219. Order confirming commissioner's report of 586 
 
 No. 220. Short form of decree for 586 
 
 No. 221. Decree for, permanent 589 
 
 Separate maintenance. 
 
 No. 222. Billfor 593 
 
 No. 223. Report of commissioner as to the evidence and allow- 
 ance 597 
 
 No. 224. Decree for 600 
 
 No. 225. Petition for support and 602 
 
 Bills to quiet title. 
 
 No. 226. Bill for, and to cancel deed 610 
 
 No. 227. Decree to quiet title and cancel deed 611 
 
 Ne exeat. 
 
 No. 228. Prayer to bill, for ne exeat '. 615 
 
 No. 229. Allowance by circuit judge 615 
 
 No. 280. Allowance by injunction master 615 
 
 Trusts, hills, etc., relating to. 
 
 No. 231. Bill to remove trustees, for receiver, etc 619 
 
 No. 232. BiU. to appoint new trustee under marriage settle- 
 ment 621 
 
 Waste, hill, etc., to restrain. 
 
 ' No. 233. By landlord v. tenant, injunction, etc 625 
 
 Mechamc''s lien. 
 
 No. 234. Notice of claim of 633 
 
 No. 235. Affidavit to be attached at time of service 635 
 
 No. 2:^6. Affidavit of service of notice 635 
 
 No. 237. Affidavit of amount due, etc 636 
 
 No. 238. Notice that affidavit is a true copy 637 
 
 No. 239. Bill for, on written contract 642 
 
 No. 240. Petition for, on implied contract 644 
 
 No. 241. Petition for, on verbal contract 647 
 
 Answer. 
 
828 INDEX. 
 
 FORMS— Continued. 
 
 No. 242. Answer by owner to bill or petition foi 650 
 
 No. 243. Setting up discharge of 652 
 
 No. 244. Setting up lien for materials 653 
 
 No. 245. Cross-bill to enforce lien of defendant 654 
 
 No. 246. Decree allowing lien, and for sale of premises 657 
 
 No. 247. Decree for Hen, where other proceedings pending are 
 
 unadjusted 658 
 
 No. 248. Decree allowing lien, Where several liens and mortgage 
 
 are to be adjusted 659 
 
 Next friend of infants. 
 
 No. 249. Petition for appointment of 665 
 
 No. 250. Consent to become 665 
 
 No. 251. Order appointing 666 
 
 Guardian ad litem. 
 
 No. 252. Petition for appointment of, by infant 669 
 
 No. 253. Affidavit of infant's signature 669 
 
 No. 254. Order appointing .' 670 
 
 No. 255. Petition by complainant for appointment of 670 
 
 No. 256. Order appointing , 671 
 
 No. 257. Order making (No. 256) absolute 672 
 
 No. 258. Petition by relative, for appointment of 672 ' 
 
 Injunctions. 
 
 No. 259. Indorsement of allowance of, by circuit judge 700 
 
 No. 260. Same, by commissioner 700 
 
 Meitions. 
 No. 261. Special 715 
 
 Jurat. 
 
 No. 262. To an affidavit 719 
 
 No. 263. To bill, sworn to by solicitor 720 
 
 Costs. 
 
 No. 264. Bill of 738 
 
 No. 265. Affidavit of service of ndtice of taxation of 740 
 
 No. 266. Claim of 751 
 
 No. 267. Bond upon 751 
 
 No. 268. Notice of application for approval of bond 753 
 
 No. 269. Notice of appeal 755 
 
 No. 270. Affidavit of service of notice of 756 
 
 Notice. 
 
 No. 271. Of hearing in'Supreme Court 765 
 
 No. 272. Countermand of 766 
 
 Order. 
 No. 273. When defendant admits contempt, that he answer 
 
 within a specified time 779 
 
 No. 274. For commitment of defendant for disobeying order to 
 
 answer •. 779 
 
 No. 275. In contempt, directing filing of inten-ogatories 780 
 
INDEX. 829 
 
 FORMS— Continued. 
 
 No. 276. Convicting defendant of contempt after his examination 
 
 upon interrogatories ., 781 
 
 No. 277. To refer second or tliird answer on old exceptions 782 
 
 No. 278. For sheriff to act as sergaant-at-arms 783 
 
 No. 279. For sequestration 782 
 
 No. 280. Of reference, when defendant does not submit to an- 
 swer exceptions 784 
 
 No. 281. For further answer after report of commissioner 784 
 
 No. 282. For attachment, third answer being held ijjsufficient. . 784 
 No. 283. For examination, third answer being held insufficient. . 784 
 
 No. 284. To amend bill after plea to part is allowed 785 
 
 No. 285. Of reference to commissioner 785 
 
 No. 286. Of reference of plea of former suit pending 786 
 
 No. 287. Directing plea to stand for answer 786 
 
 No. 288. Allowing complainant to dismiss his bill 786 
 
 No. 289. To pay money into court 787 
 
 No. 290. Final, dismissing bill at hearing 787 
 
 No. 291. For cause to stand over to add new parties 787 
 
 No. 292. For cause to stand over to supply proofs 787 
 
 No. 293. Interrogatories pursuant to No. 775, ante 788 
 
 Answer. 
 No. 294. To interrogatories in No. 293, ante 788 
 
 Report. 
 No. 295. Commissioner's, upon exception to answer for insuffi- 
 ciency 789 
 
 Answer. 
 No. 296. Further, after exceptions and amendment 789 
 
 Report. 
 No. 297. Master's, as to sufficiency of defendant's examination. 790 
 
 Exceptions. 
 No. 298. To master's report, on exceptions to answer 790 
 
 Agreement. 
 No. 299. To submit cause on written argument 790 
 
 Ahstract. 
 No. 300. Of pleadings and case 791 
 
 Brief. 
 No. 301. And points on hearing 792 
 
 Cross-Bill. 
 No. 302. Notice of motion on, to stay proceedings in original 
 
 suit 792 
 
 No. 303. Certificate of counsel where stay of proceedings is de- 
 sired upon filing 793 
 
 Order. 
 
 No. 304. To stay proceedings as desired in No. 302, ante 793 
 
 No. 305. That original and cross-bill be heard together 794 
 
 GENERAL PRINCIPLES OF EQUITY PLEADING— 
 
 Nature of, etc 3 
 
830 INDEX. 
 
 GUARDIAN— 
 
 General, how appointed 677 
 
 In proceedings to bai dower 777 
 
 Sales by 777 
 
 Final report of 677 
 
 AA litem, how appointed, etc 667-672 
 
 Form of petition, etc 667-672 
 
 In suits of partition 481 
 
 HABITUAL DRUNKENNESS— 
 
 What sufffcient grounds of divorce 642 
 
 Form of bill for divorce, alleging 543 
 
 HEARING— 
 
 Notice of 198 
 
 To be, for first day of term 200 
 
 Form of 198 
 
 Calendar, how made up 199 
 
 Proving documents at 186 
 
 Case and abbreviation of pleadings 199 
 
 Form of 791 
 
 Papers to be furnished upon 201 
 
 By whom furnished 202 
 
 Points to be delivered 202 
 
 Submission of causes 202 
 
 Course of proceeding 203 
 
 Of a case out of its order 204 
 
 Original and cross-bill heard together 204 
 
 Effect of former orders on 205 
 
 Of demurrer 94 
 
 Of supplemental bill 230 
 
 Of bill of revivor 252 
 
 Of bills of interpleader 308 
 
 On exceptions 201 
 
 Of foreclosure bills 414 
 
 Of divorce suits 663-573 
 
 Of motions foi temporary alimony 677 
 
 In suits for maintenance 603 
 
 In mechanic's lien suits 656-663 
 
 Of application to transfer causes 721 
 
 Of motions generally 714 
 
 IDIOTS— LUNATICS— 
 
 Partition of lands of 604 
 
 IMPERTINENCE— 
 
 Nature of 26 
 
 Form of exceptions to answer for 81 
 
 Form of order expunging from answer for 156 
 
 IMPOTENCY— 
 
 At time of marriage a ground for divorce 525-530 
 
 Form of hill for divorce on that ground 528 
 
INDEX. ?31 
 
 INFANCY— 
 
 Form of plea of, without a prochein ami 107 
 
 INFANTS— 
 
 Suits for 664-666 
 
 Next friend 664 
 
 How appointed 664 
 
 Form of petition for, etc 665 
 
 Bond of next friend 666 
 
 Suits against 66*^-672 
 
 Guardian ad litem 668-672 
 
 Forms of petition for appointment of. 669 
 
 Sale of estates of, and incompetents 673-677 
 
 Proceedings , 674 
 
 Proceeds, how applied 675 
 
 Dower, how satisfied 676 
 
 Griiardians final report 677 
 
 Answer of, by guardian ad litem 131 
 
 Form of 137 
 
 Partition of lands of 503 
 
 INFORMATION— 
 
 Comraenoement of suit by -. 5 
 
 INJUNCTIONS— 
 
 Nature of 697 
 
 When and how granted 697-700 
 
 By whom granted 699 
 
 / When judge or commissioner are disqualified 705 
 
 Form of allowance htj judge 700 
 
 Form of allowance hy commissioner 70) 
 
 Staying proceedings at law 700-705 
 
 Bond to be given 701 
 
 After verdict 701 
 
 After judgment 701 
 
 In ejectment 702 
 
 Sufficiency of sureties 703 
 
 FHing of bond 704 
 
 Measure of damages 704 
 
 Enjoining taxes 704 
 
 Dissolution of 705 
 
 Form of prayer for 49 
 
 Amendment of bills for 157 
 
 On bills of interpleader 306 
 
 In creditor's suits, eflfect of 457 
 
 In divorce suits 558 
 
 In suits lor separate maintenance 593 
 
 In suits for maintenance 603 
 
 In corporation suits 681 
 
 Who may apply for therein 683 
 
332 INDEX. 
 
 INSUFFICIENCY— 
 
 Exceptions to answer for 145 
 
 Form of 155 
 
 INTERLOCUTORY— (se« Deckebs, etc.) 
 INTERPLEADER, BILL OF- 
 
 Nature of, and when proper — 296-300 
 
 Frame of bill 300 
 
 Affidavit of non-coUusion 301 
 
 Form of hill -. 301 
 
 Form of affidavit to he annexed 303 
 
 Defenses to .' 304-307 
 
 Demun-er 304 
 
 Form of, for want of affidavit of non-collusion 304 
 
 Form of, not showing any claim in defendant 305 
 
 Form of, not showing any right in complainant 305 
 
 Answer 305 
 
 Injunction 306 
 
 Form of order for injunction upon 306 
 
 Taking bill as confessed 307 
 
 Evidence 307 
 
 Hearing and decree 308 
 
 Costs upon .- 309 
 
 Form of interlocutory decree directing a reference , . 310 
 
 INTERROGATING PART OF A BILL— 
 
 Nature of, etc 29 
 
 Form of 48 
 
 INTERROGATORIES— 
 
 Form of order directing fil'mg of, in proceedings for contempt. . 780 
 
 Form of , in proceedings for contempt 788 
 
 INTRODUCTION— 
 
 Of a bill in chancery 14 
 
 Form of ' 45 
 
 ISSUES TO BE TRIED BY JURIES— 
 
 Form of order directing , 194-196 
 
 In divorce cases 563 
 
 Form of order directing 564 
 
 JOINDER or PARTIES— 
 
 Nature of, etc 40 
 
 Misjoinder of 41 
 
 JURISDICTION— 
 
 And powers of circuit coui-ts in chancerj 6 
 
 Of Supreme Court 741-746 
 
 Over corporations ^ 679-681 
 
 Plea to 101 
 
 Form of 106 
 
 In divorce suits 622 
 
 JURISDICTIONAL CLAUSE— 
 
 In a bill in chancery 28 
 
 Form of 47 
 
INDEX. 833 
 
 JURY— 
 
 Trial of issues of fact by 194 
 
 Form of order directing 196 
 
 Trial by, in divorce suits 563 
 
 Form of order directing 664 
 
 LANDLORD AND TENANT— 
 
 Form of hill bg landlord to restrain waste, etc 625 
 
 LIENS- 
 
 Priority of, in creditors' bills 449 
 
 Proceedings to enforce mechanic's 628 
 
 Considered as a mortgage 638 
 
 Discharge of 638 
 
 Limitation of 639 
 
 LIMITATIONS— 
 
 Form of plea of statute of 109 
 
 Of mechanic's lien 639 
 
 LOST INSTRUMENT— 
 
 Specific performance of contract, lost 343 
 
 MAINTENANCE— 
 
 Suits for, where proper 601 
 
 Practice and proceedings 601-603 
 
 Petition for ., , 602-603 
 
 Form of 603 
 
 Injunction 603 
 
 Hearing and decree 603 
 
 Children, custody 603 
 
 Support of wife and 604 
 
 Assignment of property 604 
 
 Court may change allowance 604 
 
 MAINTENANCE, SEPARATE— 
 
 When granted, 591 
 
 Grounds for 591-593 
 
 Proceedings to obtain , 598-595 
 
 Where commenced 593 
 
 The bill 593 
 
 Injunction, when allowed 593 
 
 Form of bill for 593 
 
 Defenses to 595 
 
 Practice in, and decrees 596-600 
 
 Reference to master £98 
 
 Form of order of 600 
 
 Form of report of 597 
 
 Amount of allowance 598 
 
 Modification of 599 
 
 Foi-m of decree for .• 600 
 
 MECHANIC'S LIEN, PROCEEDINGS TO ENFORCE— 
 
 Nature of 628 
 
 Where a lien is given 629-633 
 
 53 
 
834 INDEX. 
 
 MECHANIC'S LIEN, PROCEEDINGS TO ENFORCE— Continued. 
 
 Nature of, and service 633 
 
 Form of 683 
 
 Effect of filing and serving 633 
 
 Statements to be rendered 634 
 
 Lien considered as a mortgage 684 
 
 Affidavits to be filed 684 
 
 Forms of. 
 
 To he attached to notice 635 
 
 Proof of service of notice 635 
 
 Of amount due 636 
 
 That notice is a true copy 637 
 
 Discharge of .'. 638 
 
 Limitation of 639 
 
 Bills and petitions 639-649 
 
 Parties to 639 
 
 Security for costs upon 640 
 
 Averments of 640 
 
 Amendments to 641 
 
 Forms of. 
 
 Bill for, on written contract 642 
 
 Petition for, on verbal contract 647 
 
 Petition for, on implied contract 644 
 
 Notice lis pendens 649 
 
 Answer 649 
 
 Forms of. 
 
 By owner 650 
 
 Setting up discharge of lien 652 
 
 Setting up another lien 663 
 
 Cross-bill '. ,. . 654 
 
 Form of 654 
 
 Hearing 656 
 
 Decree 657 
 
 Forms of. , 
 
 Allowing lien, and for sale of premises 657 
 
 Allowing lien, where other proceedings are petidmg, etc. . . 658 
 Alloiving lien, where there are several liens, and a mort- 
 gage to he adjusted •. 659 
 
 Costs 661 
 
 Sale 661 
 
 Redemption 662 
 
 Proceeds, distribution of 662 
 
 To be paid into court 662 
 
 Surplus 662 
 
 Discharge 663 
 
 Appeal 663 
 
 MARRIAGES— 
 
 Suit to annul 555 
 
INDEX. 835 
 
 MARRI A GES— Continued. 
 
 Suit to affirm 556 
 
 Void, what are 556 
 
 MISJOINDER— 
 
 Of parties to a bill 41 
 
 MORTGAGES— 
 
 Foreclosure of 393-439 
 
 Deed deemed as 372 
 
 Form of hill to redeem from 384 
 
 MOTIONS— 
 
 Nature of .' 714 
 
 Notice of. 714 
 
 Form of, special 715 
 
 On petition for rehearing 716 
 
 To dismiss bill for want of prosecution 716 
 
 Rules relating to service of papers upon , 716-718 
 
 In Supreme Court, practice upon 760-764 
 
 MULTIFARIOUSNESS— 
 
 Nature of, and what is 22 
 
 Form of demurrer on that ground 97 
 
 NE EXEAT— 
 
 Nature of, and when proper 613 
 
 Bill for 614 
 
 Form of prayer for 615 
 
 How obtained, etc 615 
 
 Forms of allowance. 
 
 Sy circuit judge 615 
 
 By injunction master 6I5 
 
 NEXT FRIEND— 
 
 In suits by infants 664 
 
 Appointment of 664r-666 
 
 Forms of petitions, etc., for 665-666 
 
 Bond of 666-667 
 
 NOTICE— 
 
 Of publication 55 
 
 How obtained 65 
 
 Essentials of affidavit for 55 
 
 Proof of publication* of 58 
 
 Of hearing 198 
 
 Form of 198 
 
 NUNC PRO TUNC— 
 
 Decrees, clause in 213 
 
 OATH— 
 
 Waiver of, to an answer 128 
 
 Of commissioners to make partitions 491 
 
 Form of 510 
 
 OBJECTIONS— 
 
 To master's report 192 
 
 Form of 192 
 
836 INDEX. 
 
 ORAL TESTIMONY— 
 
 To be heard on a hearing 183 
 
 ORDERS— 
 
 Nature of 718 
 
 Common and special 214 
 
 See forms. 
 PAROL CONTRACTS— 
 
 May be specifically performed 344 
 
 PARTIES— 
 
 To bills generally 37 
 
 Who should be made ." 37 
 
 How described 39 
 
 Persons under disability 39 
 
 Joinder of 40 
 
 Want of proper 41 
 
 Misjoinder of 41 
 
 Form of demurrer for want of 98 
 
 Form of plea of want of 108 
 
 To a supplemental bill 220 
 
 To bills in nature of bills of revivor 257 
 
 To bills of review 270 
 
 To bills for specific performance 345 
 
 To bills to redeem 376 
 
 Complainants 376 
 
 Defendants 378 
 
 To bills to foreclose mortgages 398 
 
 Complainants 398 
 
 Defendants 399 
 
 To a creditor's bill 446 
 
 Complainants 446 
 
 Defendants 447 
 
 To partition suits 478 
 
 Complainants or petitioners 478 
 
 Defendants 478 
 
 Unknown parties in partition suits 480 
 
 Process against 4B0 
 
 To biUs to probate foreign will 514 
 
 To bills for divorce 524 
 
 In proceedings to enforce mechanic's lien 689 
 
 Unknown defendants 55 
 
 How made parties 55 
 
 Publication as to 58 
 
 PARTITION SUITS— 
 
 Nature of, and how instituted 475 
 
 Parties to 478 
 
 Complainants or petitioners 478 
 
 Defendants 478 
 
 Unknown 480 
 
INDEX. 837 
 
 PARTITION SUITS— Continued. 
 
 Guardian for minors 481 
 
 Bond required 481 
 
 Bill 482 
 
 What to set forth 482 
 
 Amendments to 48-3 
 
 Answer 483 
 
 Feigned issues 483 
 
 Forms of bills. 
 
 Between heirs, subject to dower 484 
 
 Bill for 486 
 
 Bill for partition and dower 488 
 
 Reference and proceedings 489 
 
 On bill confessed 489 
 
 To ascertain situation of premises 490 
 
 Infant defendants 490 
 
 Proceedings to decree 491 
 
 Commissioners, appointment of 491 
 
 Vacancies among 491 
 
 Oath to 491 
 
 Form of 510 
 
 Partition, how made by 491 
 
 Fees of 492 
 
 Repoi-t of 492 
 
 Form of, making partition 509 
 
 Form of, that premises are not devisable 510 
 
 Report set aside 492 
 
 Report, coniirmation of 493 
 
 On all parties named 493 
 
 On all persons interested 493 
 
 On all persons claiming 493 
 
 Form of decree confirming 511 
 
 Persons not affected 493 
 
 Partition among heirs 494 
 
 Partition by sale 495 
 
 When court to order sale 495 
 
 Order directing terms of credit 495 
 
 Separate securities 490 
 
 To whom delivered 496 
 
 Moneys, to be brought into court 496 
 
 Application for 496 
 
 Proceedings thereon 497 
 
 Distribution of 497 
 
 Applied and invested *. 502 
 
 Bischarge of incumbrances 497 
 
 Sale of dower or life estate 498 
 
 Investment of proceeds, how determined 499 
 
 If estate in dower 499 
 
388 INDEX. 
 
 PARTITION SUITS— Continued. 
 
 If estate by courtesy... 499 
 
 Sale, how conducted 499 
 
 Report of ' 500 
 
 Conveyances 600 
 
 Costs 500 
 
 Proceeds, distribution of 501 
 
 Shares of infants 501 
 
 of unknown owners 501 
 
 of tenants in dower or for life 501 
 
 Security to refund 502 
 
 How taken 502 
 
 Suits upon securities , 503 
 
 Lands of infants and lunatics 503 
 
 of infants 503 
 
 of lunatics 504 
 
 Hearing 505 
 
 Costs 505 
 
 Decree .• 505 
 
 Form of, for sale of premises 512 
 
 Form of, confirming sale 513 
 
 Receiver 506 
 
 Appeal 506 
 
 Decisions, general 507 
 
 PARTNERSHIP MATTERS, BILLS RELATING TO— 
 
 Where a dissolution will be decreed 361 
 
 Account between partners 361 
 
 Appointment of a receiver 362 
 
 When appointed 363 
 
 Forms of bills. 
 
 For a dissolution and for injunction 364 
 
 Affidavit to, to obtain injunction 366 
 
 For an account, and for injunction 367 
 
 Forms of decrees and orders. 
 
 Order appointing a receiver 369 
 
 Decree for an account 369 
 
 Final decree for dissolution and account 370 
 
 PETITIONS— 
 
 Setting aside decree when defendant is not personally notified... 75 
 
 Form of 77 
 
 Form of, for leave to amend bill after replication 161 
 
 For leave to file supplemental bill 224 
 
 Form of 225 
 
 For iSave to file biU of review 272 
 
 Form of, for errors of law 278 
 
 Form of, upon discoverg of new matter 274 
 
 To annul marriages 555 
 
 For temporaiy alimony in divorce cases 574 
 
INDEX. 839 
 
 PETITIONS— Continued. 
 
 Form of, pendente lite 575 
 
 For permanent alimony, statute of 1873.." 586 
 
 For separate maintenance 591 
 
 For maintenance 602 
 
 Form of 602 
 
 For mechanic's lien 639 
 
 Form of, on implied contract 644 
 
 Form of, on verbal contract 647 
 
 ^LEADING IN EQUITY— 
 
 General principles of 3 
 
 PLEAS — [see Pleas to a Bill.) 
 
 To a supplemental bill 227 
 
 To a bill of revivor 248 
 
 To a bill of review 279 
 
 To bills of discovery 292 
 
 To a cross-bill 333 
 
 Forms of. 
 
 Commencement and conclusion of 105 
 
 To part of bill 106 
 
 In abatement to jurisdiction of court 106 
 
 Of coverture of complainant 107 
 
 Of infancy without a prochein ami 107 
 
 That defendant never was administrator 107 
 
 Alien enemy 107 
 
 Want of proper parties 108 
 
 Former suit pending 108 
 
 Statute of limitations 109 
 
 Release, supported by answer 110 
 
 Stated account Ill 
 
 To a part, with answer to residue 112 
 
 To a supplemental bill 228 
 
 To a bill of review 282 
 
 To a bill of discovery, action pending, etc 292 
 
 To a bill of discovery, would betray professional confidence. . . 293 
 PLEAS TO A BILL— 
 
 Nature of 99 
 
 When proper 101 
 
 To the jurisdictioa 101 
 
 To the person 102 
 
 To the bill 102 
 
 In bar 103 
 
 Frame of 103 
 
 Form of. 
 
 Commencement and conclusion of 105 
 
 To a part of a hill irg 
 
 Jn abatement to jurisdiction of the court 106 
 
 Coverture of complainant 107 
 
840 INDEX. 
 
 PLEAS TO A BILL— Continued. 
 
 Infancy, without prochein ami 107 
 
 That defendant never was administrator 107 
 
 That complainant is an alien enemy 107 
 
 Want of proper parties 108 
 
 Former suit pending 108 
 
 Statute of limitations 109 
 
 Of release, with answer in support of 110 
 
 Of stated account Ill 
 
 Flea to part and answer to residue 112 
 
 Signing of 112 
 
 When to be sworn to 112 
 
 When to be filed 113 
 
 Replication to 113 
 
 Amendment of bill after 114 
 
 Demurrer to, not proper 114 
 
 Argument of 114 
 
 Effect of allowing 115 
 
 Saving benefits of, to the hearing 115 
 
 Allowing to stand for an answer 116 
 
 Overruling of 116 
 
 When to be supported by answer 117 
 
 PRACTICE IN SUPREME COURT— 
 
 Jurisdiction of Supreme Court 741-746 
 
 Appeals, when allowed 746-750 
 
 Orders not final 747-749 
 
 Orders final 749-750 
 
 Appeals, how taken 750-760 
 
 Claim of 750 
 
 Form of 751 
 
 ' Bond on 751 
 
 Form of 751 
 
 Approval of 753 
 
 Application for, form of 753 
 
 Notice of 764 
 
 Form of 755 
 
 Form of affidavit of service of 756 
 
 Register's return to 756 
 
 Extending time for 757 
 
 What it includes 758 
 
 Appearance, entry of 758 
 
 Settling case heard in open court 758-760 
 
 Motions 760-764 
 
 Docket 762 
 
 Days for hearing 762 
 
 Agreements between counsel 762 
 
 To dismiss appeal 763 
 
 Hearing 764 
 
INDEX. 841 
 
 PRACTICE IN SUPREME COURT— Continued. 
 
 Notice of 765 
 
 Form of 765 
 
 Re-hearing 769 
 
 (Hearing) 
 
 Record printed 764 
 
 Remitting 770 
 
 Briefs to be furnished 767 
 
 The argumentf 767 
 
 Re-arguments 770 
 
 Calendar, Court 766 
 
 Decree 768 
 
 Amendments to bills 769 
 
 Final process 770 
 
 Vexatious appeal 771 
 
 Costa 771-774 
 
 Taxation of 772 
 
 Re-taxatiou 773 
 
 PEAYER— 
 
 For relief in a bill 31 
 
 For process in a bill 33 
 
 Forms of 48 
 
 For suh2)cena 48 
 
 For injunction 49 
 
 Of a supplemental bill 222 
 
 Of a creditor's bill 453 
 
 PREMISES, OR STATING PART OF A BILL— 
 
 Requirements of, generally 15 
 
 Form of ' 43 
 
 PRIVITY— 
 
 Form of demurrer for want of 98 
 
 PROCEEDINGS TO BAR DOWER OF INSANE- 
 
 When proper 775 
 
 Petition for 775 
 
 Appearance and answer of wife 776 
 
 Taking proofs 776 
 
 Commissioner's report 777 
 
 Action upon 777 
 
 Sale by guardian 777 
 
 Disposition of fands 778 
 
 PROCESS FOR APPEARANCE— 
 
 Prayer for, in a bill of chancery 33 
 
 Subpoena 50 
 
 Service and return of 62 
 
 Notice by publieation 55 
 
 Essentials of affidavit for 55 
 
 The order of appearance , 57 
 
842 INDEX. 
 
 PROCESS FOR APPEARANCE— Continued. 
 
 Time of 57 
 
 Publication and proof 58 
 
 Service by copy or order of appearance 61 
 
 Summons 62 
 
 Attacbment to compel answer ; . . 62 
 
 How obtained 64 
 
 With proclamation 65 
 
 Commission of rebellion 66 
 
 Sergeant-at-arms 66 
 
 Sequestration 67 
 
 To a supplemental bill 225 
 
 In partition suits 447 
 
 Upon cross-bills 331 
 
 Forms of 
 
 Prayer for, in. a hill 48 
 
 Subpoena 51 
 
 Affidavit of service 56 
 
 Return by officers 54 
 
 Affidavits for publication 58 
 
 Stating place of residence 58 
 
 Residence not known 58 
 
 That defendant can not be found 59 
 
 That defendant is concealed in State 59 
 
 Order of appearance 59 
 
 Short form of 60 
 
 Affidavits to obtain attachment 65 
 
 Order for attachment 65 
 
 PROCHEIN AMI— 
 
 Require to give bond for costs 666 
 
 PUIS DARREIN CONTINUANCE— 
 
 FOBM OF CKOSS-BILL IN NATUKB OF PLEA 01 828 
 
 RECEIVER. 
 
 Appointment of, in suits between partners 362 
 
 When appointed 363 
 
 Form of order appointing 369 
 
 In creditor's bill 456 
 
 Their powers 456 
 
 Security by 457 
 
 Accounts of 471 
 
 Form of order appointing 471 
 
 In proceedings against insolvent corporation 683 
 
 Upon dissolution of corporation 689 
 
 Commission to 692 
 
 To retain certain money 692 
 
 Under control of court 694 
 
 Accounts of 694 
 
INDEX. 843 
 
 RECORDS OF INFERIOR COURTS.— 
 
 To be printed 704 
 
 Remitting to Supreme Court 770 
 
 RECRIMINATION.— 
 
 In divorce suits ,562 
 
 REDEMPTION.— 
 
 Proceedings to redeem 371 
 
 Terms of 879 
 
 Form of decree of 391 
 
 In sales upon mechanic's lien 662 
 
 RELEASE.— 
 
 Form of plea of, supported hy answer 110 
 
 RELIEF.— 
 
 Prayer for, in a bill 31 
 
 Form of 4S 
 
 REPLICATION.— 
 
 Nature of 164 
 
 Within what time to be filed 164 
 
 Issue made by 165 
 
 Effect of filing 166 
 
 Withdrawing 166 
 
 Form of ., 166 
 
 To answer to biU of revivor 250 
 
 To a plea 113 
 
 To a supplemental bill 229 
 
 REPORT— 
 
 Of commissioners to make partition 491 
 
 Upon exceptions to answer 151 
 
 Of testimony taken ; 191 
 
 Of mortgage sale 435 
 
 Upon petition to bar dower 777 
 
 Of partition by sale. 500 
 
 Forms of. 
 
 Where partition was made 509 
 
 Where premises not susceptible of division 510 
 
 Circuit Court Commissioner, of Evidence ..• 192 
 
 Commissioner as to alimony, etc 585 
 
 Commissioner as to separate maintenance 597 
 
 Commissioner as to exceptions to answer 789 
 
 Commissioner as to sufficiency of defendant' s examination. . 790 
 REVIEW, BILLS OF— 
 
 Nature of, and when propf.^ 264 
 
 Where they lie 264 
 
 For eri-or of law. 266 
 
 For newly discovered evidence 268 
 
 Parties to 270 
 
 Leave to file 271 
 
 Performance of decree 272 
 
844 INDEX. 
 
 REVIEW, BILLS OF— Continued. 
 
 Petition for 272 
 
 Form of, for errors of law 273 
 
 Form of, for newly discovered evidence 274 
 
 Within what time to be brought 275 
 
 Form of order of leave to file 275 
 
 Form of bill 275 
 
 Form of, upon errors of law 276 
 
 Form of, on discovery of new matter 277 
 
 Form of affidavit to 278 
 
 , Defenses to 278 
 
 Plea 279 
 
 Form of 282 
 
 Demurrer 280 
 
 Form of 282 
 
 Answer 281 
 
 REVIVOR, BILL OF— 
 
 ■Nature of 239 
 
 When proper 240 
 
 Before decree 240 
 
 After decree 241 
 
 Against whom to be filed 243 
 
 Before decree.,.. 243 
 
 After decree 244 
 
 Frame ofbiU 244 
 
 . Must pursue the original bill 244 
 
 Form of, hefore decree 244 
 
 Form of, after decree 2)5 
 
 Defenses to 247 
 
 Demurrer 248 
 
 Plea 248 
 
 Answer 249 
 
 Replication 250 
 
 Order to revive 251 
 
 Form of 251 
 
 Hearing : .' 252 
 
 Eifeot of 253 
 
 Bills in the nature of — 
 
 Nature and uses 255 
 
 Parties to 257 
 
 Frame of 257 
 
 Form of 25-i 
 
 Defenses to and proceedings upon 260 
 
 Revivor and Supplement. — 
 
 Nature of, and when proper 261 
 
 Practice upon : 262 
 
 Form of 262 
 
ESTDEX. 845 
 
 REVIVOR, STATUTORY MODE OF— 
 
 When proper ..^ , 729 
 
 Proceedings 731 
 
 SALES— 
 
 Proceedings upon, in foreclosure 416-434 
 
 Partition on 495-504 
 
 In mechanic's lien suits 661-662 
 
 Of estates of insane to bar dower 777 
 
 Of estates of infants and incompetents 673-677 
 
 SCANDAL AND IMPERTINENCE— 
 
 Of what it consists, in a bill 25 
 
 Exceptions to a bill for 80 
 
 Form of 81 
 
 Exception to an answer for 148 
 
 Form of 155 
 
 Form of order expunging 156 
 
 SEPARATE MAINTENANCE— 
 
 When granted 591-593 
 
 Proceedings to obtain 593-595 
 
 Defenses to 595 
 
 Practice and decrees in 596-600 
 
 SEQUESTRATION— 
 
 When directed 67 
 
 Of property of corporations 681 
 
 Of party in contempt 712 
 
 Form of order for 783 
 
 SERGEANT-AT-ARMS— 
 
 When appointed, etc 66 
 
 Form of order appointing 782 
 
 SPEAKING DEMURRERS— 
 
 What are, and nature of 91 
 
 SUBPCENA- 
 
 Form of prayer for, in a hiU 33 
 
 To compel appearance of defendant 50 
 
 Form of.: 61 
 
 Service of 52 
 
 Form of affidavit of 55 
 
 Return of 53 
 
 Form of 54 
 
 SUMMONS— 
 
 For attendance of parties before commiss'oner 62 
 
 SPECIFIC PERFORMANCE, BILLS FOR— 
 
 Nature of, and when proper 33g 
 
 Of a lost instrument 343 
 
 Of an award 343 
 
 Parol contracts 344 
 
 Parties to 345 
 
 Frame of bill 34g 
 
846 INDEX.- 
 
 SPECIFIC PERFORMANCE, BILLS FOBr-Continued. 
 
 Tender 347 
 
 Forms of. 
 
 Of a written agreement, vendee v. vendor 348 
 
 Of a written agreement, vendor v. vendee 349 
 
 Of a bond for a deed 350 
 
 Of an agreement for a lease 352 
 
 Decree 358 
 
 Declaration of right to 353 
 
 Reference of title 354 
 
 Payment of purchase money, etc 355 
 
 Delivery of deeds, etc 355 
 
 Forms of orders and decrees. 
 
 Order of reference as to title, etc 356 
 
 Interlocutory, for an account 356 
 
 Final decree for 357 
 
 STATUTE OF FRAUDb— 
 
 Form of answer, setting it up 138 
 
 STATING PART OR PREMISES— 
 
 Of a bill in chancery 15 
 
 Form of 46 
 
 Certainty required 16 
 
 Exhibits 21 
 
 Must state the whole subject 22 
 
 Multifariousness 22 
 
 Scandal and impertinence 25 
 
 SUITS FOR MAINTENANCE— 
 
 When proper 601 
 
 Practice and proceedings 601 
 
 The petition 602 
 
 Form of 602 
 
 Injunction 603 
 
 Hearing and decree 603 
 
 Assignment of property 604 
 
 SUPREME COURT— 
 
 Jurisdiction of 741-746 
 
 Terms of 741 
 
 What it reviews 742-T46 
 
 Appeals to, when allowed 746-750 
 
 How taken 750-760 
 
 Notice of 754 
 
 Return to 756 
 
 Motions , 760 
 
 Hearing and decree : 764 
 
 Calendar 766 
 
 Costs 771 
 
INDEX. 847 
 
 SUPPLEMENTAL BILLS— 
 
 Nature of, and when proper 217 
 
 When to be filed 219 
 
 Parties to 220 
 
 Form of 221 
 
 Prayer of 222 
 
 Form of, for specific performance, etc 222 
 
 Form of, against assignee of bankrupt, etc 22? 
 
 Petition for leave to file 224 
 
 Form of 225 
 
 Process, etc 225 
 
 Defenses to 226 
 
 Demurrer 226 
 
 Form of 227 
 
 Plea 227 
 
 Form of 223 
 
 Practice as to demurrers and pleas 227 
 
 Answer 228 
 
 Eeplicatlon and evidence 229 
 
 Replication 229 
 
 Evidence 229 
 
 Hearing of 230 
 
 Entitling orders in ". 230 
 
 Dismissing 230 
 
 Bills in the natube of — 
 
 When proper 231 
 
 Form of 233 
 
 Form of till in nature of 233 
 
 Bills to cakrt decrees into execution — 
 
 Nature of 236 
 
 Form of 237 
 
 Bills op revivor and supplement — 
 
 Na,ture of, and when proper 261 
 
 Practice upon 262 
 
 SWEARING TO A BILL— 
 
 When required 35 
 
 To a bill of review — newly discovered matter 278 
 
 To a bill of interpleader 301 
 
 Default 68 
 
 When it may be taken 68 
 
 Forms. 
 
 Affidavit of non-appearance , 69 
 
 On default 70 
 
 Of regularity 70 
 
 Order pro confesso 70 
 
 Effect of 72 
 
 Bights of defendant after 73 
 
 Setting aside 74 
 
848 INDEX. 
 
 DEFAULT— Continued. 
 
 Form of affidavit in support of motion to, 75 
 
 Setting aside decree when defendant is not personally notified. ... 75 
 
 Form of petition to set aside decree, etc..,...., 77 
 
 In cases of bills of interpleader ,....,., 307 
 
 TAX DEED— 
 
 Form of bill to set aside, etc. 610 
 
 TESTIMONY— 
 
 Production of books and writings 82 
 
 When in the hands of third persons, , , , 189 
 
 When to be taken 168 
 
 Before commissioner 168 
 
 Extension of time by 172 
 
 Proceedings before 173 
 
 Depositions of non-residents,.,. 177 
 
 How obtained 177 
 
 Taking m open court 183 
 
 Sitting as commissioner 183 
 
 Settling case upon 184 
 
 Proving documents at.hearing 186 
 
 Stipulations to take 187 
 
 Special reference upon 190 
 
 Forms of. 
 
 Order to take proofs 169 
 
 Notice of 170 
 
 Order closing proofs 170 
 
 Affidavit for .~. 170 
 
 Notice to commissioner of 171 
 
 Notice to solicitor of 171 
 
 Notice of examination of witnesses ' 171 
 
 Order enlarging time for talcing 172 
 
 Proofs taken before commissioner 176 
 
 Certificate on filing 177 
 
 Commissions for, of non-residents 179 
 
 Petition, for issuing of commission 178 
 
 Notice of application for 179 
 
 Instructions annexed 180 
 
 Oath, etc 181 
 
 Order of reference. 191 
 
 Commissioner'' s report of 191 
 
 Objections to 191 
 
 TENDER— 
 
 In cases of specific performance 347 
 
 TRANSFER OF CAUSES— 
 
 Application for 721 
 
 Hearing of 721 
 
 When transferred 722 
 
INDEX. P49 
 
 TRANSFER OF CAUSES— Continued. 
 
 Filing of order for 722 
 
 Papers to be transferred 72'! 
 
 Fees of register 723 
 
 ■ TRUSTEES— 
 
 Form of hill to remove 619 
 
 Form of hill for appointment of, etc 621 
 
 TRUSTS, BILLS RELATING TO— 
 
 Nature of 617 
 
 Forms of hills 619 
 
 To remove trustee, for injunction and receiver 619 
 
 For appointment of new trustee, etc 621 
 
 UNKNOWN OWNERS— 
 
 In partition suits 4S0 
 
 Process against, in 480 
 
 Interest of, in partition sales 501 
 
 UNKNOWN PARTIES— 
 
 In partition suits 480 
 
 Process against 480 
 
 Interest of 501 
 
 WASTE BILLS TO RESTRAIN— 
 
 Nature of, and when proper. ^ 623-625 
 
 Form of hill, landlord against tenant 625 
 
 WITNESSES— 
 
 On creditor's bills ^ 455 
 
 Summoning before coiumissioner 62 
 
 WILLS, FOREIGN- 
 
 Bills to probate 514 
 
 When allowed 514 
 
 Bill and answer 515 
 
 Form of hill 515 
 
 Defense to 517 
 
 Testimony upon 518 
 
 Decree and its effect. 519 
 
 54 
 
Kb^MaSafc^