(jJornFll ICaui ^rJjonl ICtbtaty Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024688511 A TREATISE ON THE Pleadings and Practice OP THE COURT OF CHANCERY. Being a Condensed Statement of thf General Pr inciples op Equity Pleadings AND Practice, and Though Referring Sp^flffLv to the Statutes of Michigan, yet Adapted to any State Where Equity Practice Prevails and Especially to the United States Courts. With an Appendix of Precedents, together with the State and Federal Equity Court Rules. m ONE VOLUME. BY WILLIAM JENNISOlSr, -SSB. One OF,a«HE Judges of the Third Judicial Circuit of Michigan. DETROIT: Richmond, Backus & Company, publishers. 1882. Entered according to the Act of Congress, in the year eighteen hundred and eighty-two. By WILLIAM JENNISON, In the Office of the Librarian of Congress at Washington, D. C. TO THE HONORABLE JAMES V. CAMPBELL, one of the Justices of the Supreme Court of Michigan, THIS WORK IS inscribed AS A TRIBUTE OF SINCERE APPRECIATION OF THE INTEREST HE HAS SHOWN IN ITS PROGRESS, AND AN EXPRESSION llF THE AUTHOR'S SENSE OF THOSE EMINENT QUALITIES WHICH HE HAS FOR MANY YEARS EXHIBITED IN ELUCIDATING AND ILLUSTRATING THE PRINCIPLES OF EQUITY JURISPRUDENCE. PREFACE, Any recent treatise on Chancery Practice and Pleading must necessarily be but a condensation of the numerous and extensive works already published, and the brevity imposed by the limitation to a single volume must necessarily result in the sacrifice of some matter which it would have been useful to retain. This book is designed to meet an increasing demand by the younger practitioners of the State for a moderate priced work, containing a simple outline of the various steps required in an ordinary chancery suit, with a statement of some of the general principles underlying the practice as applicable to Michigan legislation, and illustrated by the decisions of our Supreme Court, together with a collection of some of the more useful forms. As a matter of convenience to the profession the chancery rules adopted by our Supreme Court up to the present time, have been added. As the United States Circuit Courts possess general equity jurisdiction, and the State practitioner will have frequent occasion to resort to it, the equity rules adopted by the Supreme Court of the United States, and by the Judges of this Circuit, with annotations, have also been added to the work and referred to in the text. In view of the limited space, the references do not extend, except in occasional instances, beyond the well-known chancery treatises and decisions, and the reports of the Supreme Court of Michigan. As the first twenty-two volumes PREFACE. of those reports have been annotated, the citations will refer to them. The latest edition of Barbour's Chancery Prac- tice, with its extensive notes, Daniell's Chancery Practice, 4th Am. Ed., by Mr. Perkins, Hoffman's Chancery Practice, Story's Equity Pleadings, Mitford's Equity Pleadings, by Jeremy, Cooper's Equity Pleadings, and Seton on Decrees, are the principal authorities- quoted, and to which it is assumed that the student will refer for an exhaustive discus- sion of every question. I also take pleasure in referring to Judge Puterbaugh's work on Practice and Pleadings in a single volume. As our practice is similar to that of New York, and which was established by Chancellor Kent and his successors, under a system of rules and a body of statutes closely resem- bling those ot Michigan, I have followed to a certain extent the plan of Mr. Barbour and that of Mr. Hoffman in his scholarly Treatise. The Compiled Laws of Michigan for 1871, mentioned in the text, are the latest at this date. The amendments thereto cited include the Session Laws of 1881, and in which will be found an index to all legislation since said compilation. The decisions of the Supreme Court cited include those delivered at the January Term, 1882, and some at the April Term following, and which will appear in the 47th and 48th volumes, not yet reported. Doubtless there are experienced writers in the State who could have produced a more valuable and useful book on Chancery Practice, but as they have not done so, I have ventured to supply what has seemed to be a pressing need. With this explanation the work is submitted to the favor- able consideration of the younger members of the profession. TABLE OF CONTENTS. CHAPTEE I. Introductory chapter i CHAPTEE II. Histoiy of the Court of Chancery in Michigan 3 CHAPTEE III. COMMENCEMENT OF A SUIT IN CHANCERY. Section i. — How commenced 7 2. — Where commenced 9 3. — Officers of court 10 CHAPTEE IV. BILLS IN CHANOEET. Section i. — Division of bills 11 2. — Constituent parts of an original bill 12 3. — Matter of a bill 15 4. — Drawing, signing and swearing 28 5. — Numbering and marking folios 29 6. — When bill to be accompanied by affidavit 30 CHAPTEE V. , PROCESS FOR APPEARANCE. Section i. — Subpoena 32 2. — Attachment 37 3. — Process against corporations 37 CHAPTEE VI. APPEARANCE. Section I. — Appearance in general 38 2. — Voluntary appearance 40 Vlll CONfENiS. Section 3, 4 5 6 • 7. — Compulsory appearance 4* — Appearance gratis 41 — Appearance by married women 4^ — Appearance by infants 42 — Appearance by persons of unsound mind 44 — Appearance by corporations 44 CHAPTEE VII. PEOCEEDINGS TO COMPEL AK AKSWEE 45 CHAPTEE VIII. TAKIITG BILLS AS CONFESSED. Section I. — Nature of the proceeding 46 2. — For want of an appearance 48 3. — For want of an answer 52. CHAPTER IX. THE DEFENSE TO A SUIT. Section I 2 3 4. 5 6, — Proceedings by defendant previous to putting in his defense ... 54 — The different kinds of defense 57 — Demurrer 57 —Plea 65 — Answer 76 ■Disclaimer gi Joinder of several defenses 93 CHAPTEE X. PROCEEDINGS ON THE PART OF COMPLAINANT PREVIOUS TO REPLYING. Section I. — Excepting to answer 94 -Amending bill of complaint 96 j. — Dismissing bill by complainant 103 [. — Motion for production and inspection of papers 104 ;. — Motion for the payment of money into court 106 CHAPTEE XI. PROCEEDINGS ON THE PART OF THE DEFENDANT PREVIOUS TO • ' REPLICATION. Section I. — Motion to dismiss bill for want of prosecution 108 2. — Cross bill log 3. — Putting complainant to his election iiq CONSENTS. IX CHAPTEE XII. El!PLIOATIO]Sr 112 CHAPTER XIII. TESTIMONY. Section l. — ^Who may be witnesses 115 2. — Examination of witnesses 117 3. — Practice and proceedings before circuit court commissioners. . . .129 4. — Sales under decrees 149 CHAPTEE XIV. HBAEING. Section i — Preliminary proceedings 164 2. — Hearing of the cause 168 CHAPTER XV. SEIGBTED ISSUES 176 CHAPTEE XVI. DECEEES AND DEOEETAL OEDEES. Section I. — Nature, uses and kinds 179 2.— Form of 188 3. — Drawing, settling, entering and enrolling igi 4. — Rectifying decree 193 Before enrollment 193 After enrollment 197 5. — Enrollment igS 6. — Decrees pro confesso 200 7. — Decrees by default .- 202 8. — Decrees by consent 203 CHAPTEE XVII. EXECUTION OE DECEEE 204 CHAPTEE XVIII. APPEALS EEOM THE CIECUIT COURT TO THE SUPEEME COUET, AND THE PEACTiCE THBEEON 207 2 X CONTENTS. CHAPTER XIX. FURTHER DIRECTIONS. Section i. — How reserved 254 2. — When cause may be heard 254 3. — Hearing upon 255 4. — What may be heard upon ,256 CHAPTER XX.' INTERLOCUTOKT AND OTHER APPLICATIONS IN A CAUSE. MOTIONS. Section i. — Nature and kinds of 257 2. — Special motions 258 3. — What may be effected by 262 Petitions , 262 CHAPTER XXI. ORDERS. Section I 2 3 4. 5 6. 7. — Kinds of 266 — Drawing, settling and entering 267 — Form of 270 — Construction and effect of 271 — Service of 273 — Nisi 274 — How enforced 275 — Opening, modifying and discharging 276 CHAPTER XXII. AFFIDAVITS. — Nature and uses 278 — By whom to be made 280 — Form and requisites 280 — Before whom to be sworn 287 — Filing and marking 288 CHAPTER XXIII. INJUNCTIONS. Section i. — Nature and uses 289 2. — Kinds of 290 3. — In what cases granted 295 Section i 2, 3 4 5 Section 4. 5 6 7 CONTENTS. XI — How obtained and issued 299 — To restrain proceedings at law 302 — Service of and effect 309 — Breach of 310 — Dissolution of 312 CHAPTER XXIV. EECEIVERS 315 CHAPTER XXV. NE EXEATS. Section i . — Nature of 324 2. — How obtained 325 3. — Proceedings 328 4. — Discharging .328 CHAPTER XXVI. ABATEMENT AND REVIVOR. Section i. — Abatement 333 2. — Revivor , 337 CHAPTER XXVII. BILL OF REVIVOR. Section I 2, 3 4. 5 6, 7. -When proper 340 -Who entitled to file 342 -Against whom to be filed' ' 344 -Frame of bill . . . .■ 345 -Defenses 346 -Answer 347 -Replication 348 -Hearing 349 -Effect of revivor 350 CHAPTER XXVIII. BILLS IN THE NATURE OF BILLS OF REVIVOR. Section I. — Nature and uses of 352 2. — Parties to and frame of 354 3. — Defenses 354 xii coiirTBifTS. CHAPTEE XXIX. BILLS IK THE NATURE OF SUPPLEMENTAL BILLS. Section l. — Original bills in the nature of supplemental bills 355 2. — Bills to carry decrees into effect 35^ CHAPTEE XXX. BILLS OF REVITOE AND SUPPLEMENT 358 CHAPTEE XXXI. SUPPLEMENTAL BILL. Section i. — Nature of and when proper 359 2. — Parties 361 3. — Form of 362 4. — Application for leave to file 363 5. — Process 364 6. — Defenses 364 7. — Answer to 366 8. — Replication and evidence 366 9. — Hearing 367 CHAPTER XXXII. BILLS OF REVIVOR. Section l. — Nature of and when proper 369 2. — Parties 371 3; — Leave to file 372 4. — Within what time to be brought 374 5. — Frame of . .... i 375 6. — Defenses ' 376 CHAPTEE XXXIII. BILL OF DISCOVERT 378 CHAPTEE XXXIV. BILL OF INTERPLEADER. Section l. — Nature of and when proper 380 2. — Frame of 382 3. — Defenses 384 CONTENTS. XIU CHAPTER XXXV. CEOSS BILL. Section i. — Purpose of 387 2. — In what cases brought 389 3. — When to be brought 389 4. — Frame of 391 5. — Defenses 392 6. — Proceedings 393 CHAPTER XXXVI. BILL TO PERPETUATE TESTIMONY. Section i. — When may be brought 396 2. — Frame of 397 3. — Defenses and Proceedings 399 CHAPTER XXXVII. BILL TO EXAMINE WITNESSES DE BENE ESSE 402 CHAPTER XXXVIII. JUDGMENT creditor's BILLS. Section I. — When may be filed 403 2. — What may be reached 408 3 — Parties 409 4. — Priority and lien of bills 412 5, — Proceedings 413 CHAPTER XXXIX. BILLS TO FORECLOSE MORTGAGE. Section i 2 3 4 5 6, — Nature of and when proper 418 — Parties , 426 • — Frame of 434 — Proceedings 438 — Hearing and Decree 441 Execution for deficiency 462 CHAPTER XL. BILL TO REDEEM. Section i. — Nature of 464 2, — Who may redeem 466 XIV CONTENTS. Section 3. — Within what time to be filed 469 4. — Parties 471 5.— The Bill 474 6. — Tenns of Redemption 476 7. — Decree 477 OHAPTEK XLI. PAETITION SUITS, Section i 2. ■3 4. 5 6, 7. — Nature of and how commenced .480 — Parties 484 —Bill 487 — Proceedings before decree 490 — Decree 491 — Proceeding by sale 497 — Miscellaneous Provisions 500 CHAPTER XLII. PROCEEDINGS TO ENFORCE MECHANICS' LIENS. — Nature of lien , 508 —In what cases given 510 —When to attach 512 — Limitation of 515 — Parties 515 — Bill or Petition 516 — Hearing 518 — Decree and Sale 519 — Distribution of Proceeds S2I — Appeal 522 CHAPTER XLIII. QUIETING TITLE 523 . CHAPTER XLIV. PROBATE OF FOREIGN WILLS 530 CHAPTER XLV. CONTEMPTS. Section l. — Nature and kinds 533 2. — Disobedience of order, to pay money 536 3. — Other than for payment of money 537 Section i 2. 3 4 5 6 7. 8, 9' 10, CONTENTS. XV Section 4. — Punishment 544 5. — Effect of contempt on proceedings in the cause 548 6. — How cleared, waived or discharged 549 CHAPTER XLVL COSTS. — General Rules 552 — Apportionment and set-off 555 — Costs out of the fund 557 — Principles of taxation .561 — Who may tax 564 Notice of taxation 564 — Bill of costs 565 — Retaxation — practice 568 Payment how enforced 569 Section I 2 3 4. 5 6, 7. CHAPTER XLVII. BILL FOE DIVORCE. Section i . — Nature of 572 2. — When marriage void without decree 573 3. — When decree necessai-y to annul or affirm 574 4. — Causes of divorce 575 5. — Jurisdiction of and where commenced 576 6. — Adultery 577 7. — Impotency 580 8. — Conviction of crime 581 g. — Desertion 581 10. — Habitual drunkenness 582 II. — When divorce granted in another State 583 12. — Extreme cruelty 584 13. — Parties 587 14. — Frame of bill 588 15. — Injunction 5go 16. — Defenses 590 17. — Hearing and decree 592 CHAPTER XLVIII. BILL FOR LIMITED DIVORCE AND SEPARATION 599 XVI CONTENTS. CHAPTEK XLIX. ALIMONY AND EXPENSES. Section i. — Temporary alimony • • °°' 2. — Permanent alimony °°5 OBSEUVATIONS ON DIVOKCB 6ll CHAPTEE L. PROCEEDINGS BY AND AGAINST INFANTS. Section i. — Suits on their behalf 6l7 2. — Suits against them ■ • ■ • -622 3. — Proceedings for the sale of their real estate 625 CHAPTEE LI. BILLS FOR SPECIFIC PERFORMANCE. Section i 2 5 -Nature of and when proper. 632 — When refused 634 — Parties to 640 — Frame of bill 641 — Decree 644 CHAPTEE LII. Questions of Practice decided too late for text 646 EQUITY RULES OF THE STATE COURTS 653 GENERAL EQUITY RULES OF U. S. COURTS 693 RULES OF THE U. S. CIRCUIT COURTS IN EQUITY FOR SIXTH CIRCUIT 717 PRECEDENTS 727 INDEX TO MICHIGAN CASES CITED, 145, 218, 430, 431, 17,84, 245, 448, 447, 432, 186, 418, 196, 241, 843, 65, 68, 407, A. Abbott V. Alsdorf V. Godfrey's Heira V. Gregory V. Mathews Adair v. Adair Adams v. Bradley V. Cameron •B. Field '0. Lee Matter of Albany Bank v. Dorr V. Stevens Albright u Cobb Alderman v. People Allen V. Antisdale V. Atkinson V. Mills Amble V. Auditor General Amer. Ex. Co. v. Conant Amphlett V. Hibbard Anderson ». Baughman Andrews v. Kibbee Ankrinev. Woodward Armitage v. Widoe Arnold V. Bright 209,240,285,291,296,296, D. Nye 233, Atty. Gen'l «. Bank of Mich. 36, V. Detroit V. Evart Boom Co. V. McArthur ». Mohter 222, 248, ». Oakland Co. Bank 35, 77, 249 457 466 S63 457 433 479 845 456 635 411 443 427 117 85,404 636, 637 438 236 23, 432, 227. 283, 387, 388, 391, V. Soule Atwater v. Kinman V. Turfter Au Gres Co. v. Whitney Au Sable Co. v. Sanborn Austin V, Dean Avery v. Payne V. Eyerson 845 436 410 17 623 ,321 281 !i98 297 8 8 297 84, 318 14, 480, 483, a, 467, 475, 645 514 455 554 479 B. Babcoct V. Twist Bachelor u Nelson Backus V. Jeffrey Badger v. Reade Bailey v, DeGraff V. Gould V. Murphy Baker v. Pierson 101, 281, 236, 242 27, 134, 171 16 455 101, 243, 244, 245 155, 424, 435, 447, 448 433 31, 161, 210, 483, 438, 466 490 Ball V. Ball 222, 232 Ballentine v. Clark 47, 86, 184, 459 Bank Comm'rs v. Bank of Brest 319 Bank of Mich. v. Niles 61, 63, 64, 96 99, 101, 248, 843 V. Williams 53, 66, 69 279,286 Bapt. M. XJ. V. Peck 20 Barber u Milner 485 Barker v. Cleveland 85 PAGE Barman v. Bank of Poutiao 298 w. Carhartt 463 Bamabee v. Beckley 134, 142, 171, 249 Barnard v. Harrison 453 Bamett v. Powers 334, 341, 859 Bamum v. Stone 847 Barron v. Bobbins 524, 525 Barry v. Briggs 180, 181, 207, 209, 320, 321 Barstow v. Smith 84, 60 Bassett v, Hathaway 448 Bates V. Garrison 194 Batty V. Snook 428, 465, 486 Baugh V. Baugh 688 Bay City v. Treasurer 285, 236 Bay City Bridge Co. v. Van Etten 17 Beach v. White 406, 407, 410 Beal V. Chase 19, 181, 216, 245 Beebe v. Young 219, 821 Beecher v. Anderson 88 V. P. E. M. Co. 210, 811 Beekman v. Fletcher BeU V. Pate Bellair v. Wool Benedict v, Thompson Benhard v. Darrow Bennett v. Bennett V. Nichols V. Eobinson V. SelHgman Berg V. Poupard Berry z>. Innes v. Whitney Bewick v, Alpena H. Co. V. Fletcher Bigelow V. Booth Bilz V. Bilz Bingham v. Parsons Bingley v, Wheeler Bird?). Hall Birdsall ??. Johnson Bishop y. Bishop «. Felch V. Williams Bissell, Matter of Blackwood v. Van Vleet 579 18, 79, 212! 212, 374 422,483 647 432, 649 24 194, 196, 209, 844 156, 161 686,687 244,806 466 297 29, 411 169, 194, 218, 546 298, 646 192, 213 465 449, 496 170,844 641 645 296 596, 604 447, 465 131 547, 805 679, 586, 446, 205, 212, 296, Blair v. Compton Blake v. Hubbard Blanchard v.B. , L. & L. M. E. E. 297, V. 'fyler Blodgett V. Dwight Bloomer v. Henderson Bodine v, Simons Boinay v. Coats 180, 212, 296, Bomier v. Caldwell 834, Bonesteel v. Todd Bonker v, Charlesworth Booth V. Conn. Mutual L. Ins. Co. Bowe V. Bowe Boxheimer v. Gunn 144, Boyce v. Danz Brackett v. Sears Bradley v, Tyson Bragg V* Whitcomb 526 39, 247 243 633,643 529 17,91 484, 466 418, 609 300, 314 638,642 187 25 430,458 237 845,848 629 451,465 168 78 XVIU INDEX TO MICHIGAN CASES CITED. _ PAGE Breitung v. Lindauer 514 Brevoort v. Detroit 248, 250, 695, 311, 635 Brewer v. Dodge 11, 28, 24, 52, 53, 67, 69 175, 187, 334, 341, 361, 449, 841 V. Kidd 210, 551 Bridgman v. Johnson 421, 4^ Briggs V. Briggs 97, 101, 117, 585, 589 V. Hannowald 424, 466 V. Withey 295, t97 Brink v. FreofE 4ba Bristol V. Braidwood 465 V. Johnson 20, 26, 296 Bronson v. Green 97 Brown v. Blanchard 237, 238 V. Bronson 181, 211, 218, 245, 408, 469 V. Brown 134, 205, 636, 570, 586, 600 605, 608, 64-3 V. Byrne 135 V. Chase 321, 423 v. Ensworth 121 V. Gardner 19, 59, a96 u McCormick 640 ■B. PhilUps, 49, 284, 449 V. Thompson 46, 51, 182, 186, 223 Sm, 339, 341, 421, 439, 440, 443 444, 457, 463 V. Yandermeulen 211, 246, 321, 405 406, 417 Browning v. Grouse 453 V. Howard 160 Brumer u. Bay City 26 Brush V. Sweet 23, 648 Brushaber v. Stegemann 227 Buchoz V. Lecour 47, 89 V. Pray 288 1). Walker 158, 645 Buck V. Sherman 183 V. Smith , 634 Buddington, Matter of 123 Builard v. Green 158, 159, 210, 610 Bullock V. Taylor 453 Bunce v. Bailey 412 Buody V. Youmans 146, 171. 218, 246 Burpee v. Smith 19, 60, 302, 379, 6(10 Burrell v. Aud. Qen'l 528 Burrows v. Bangs 453 V. Debo 426 V. Doty 17 Burson v. Huntington 39 Burt V. McBain 623 Burtoh II. Hogge 135, 144, 158, 636, 638 Burton v. Sohiedbach 441 Butler V. Hogadone 457 V. Ladue 426 •». Roys 483 Butterfleld v. Beardsley 138, 140, 244 Byles V. Lawrence 424 Cameron ». Adams 218, S19, 221, 477 V. Calkins 252 Campau v. Campau 237, 246, 250, 480, 487, 496, 558 V. Coates 182 V. Dewey 120, 133, 134, 145, 185 V. North 117 i>. Superior Ct. Judge 253 V. Traub 246 V. Van Dvke 116 CampbeU v. Campbell 483, 496 V. Quaokenbusli 244 V. White 577 Canfleld v. Canfleld 586 V. Conkling 453, 454 Carew v. Mathews 16 CargiU V. Power 470 Carfey v. Fox 158, 429 PAGE Carne v. HaU 228, 278 Carpenter v. Ingersoll 180 V. People 231 CarreU ». Potter 86, 181 CarroU v. F. & M. Bank 279, 301, 305, 309. 812, 378 V. Potter 65, 641 V. Bice 19, 59, 296 Carter v. Lewis 469, 478 Camthers i\ HaU 153, 389, 447 V. Humphrey 422, 42t, 451 Case V. Case 195, 240 Caswell V. Comstock 207, 212 V. Gibbs 642 Cavanaugh ». Jakeway 19 Chaffee v.. Chaffee 603, 604, 609 Chamberlain v. Lyell 426, 432 Chambers v. Hill 116 V. Livermore 633, 634, 635, 637 Chandler v. Chandler 210, 597, 607, 610 V. McKinney 47, 86, 184, 459 V. Nash 125 Chapaton ». Butler 453, 667 Chapin v. Perrin 203, 213 Chapman v. K. L. & S. Co. 514 Chase zi. Brown 447 Cheever v, Congdon 620 Ohfesebro v. Chesebro 231, 281 Chipman v. Thompson 24 Christ V. Kusterer 17 Church V. Holcomb 100, 101, 242, 441 Clare v. Aud. Gen'l 235 Clark V. Adams 517 V. Davis B8, 62, 378, 407, 411, 413 V. Raymond 234, 510, 517, 518, 522 V. Saginaw Bank 69 V. Stilson 425 Clement «. Everest 215, 219, 296, 529 Climer v. Hovey 642 Coleman v. S. M. Co. 455, 466 Colgate V. M. L. S. R. R. 211 Collar V. Harrison 17, 175, 453, 454 Comstock V. Comstock 23, 92, 234, 433, 175, 487, 552 V. Howard • 419, 485 V. Smith 20, 430 Connerton v. MUlar 21, 219, 232, 437, 448 Connor v. Allen 80, 279 Connors v. Detroit 175, 539 Conrad v. Nail 577 Continental Ins. Co. z/. Bulte 440, 441 V. Horton 246 Converse v. Blumrich 447 Conwav u Waverly 234, 296, 3116 Cook V. Bell 144 V. D. & M. R. R. 3S, 89, 318, 486 V. Finkler 470 V. Stevenson 116 D.Wheeler 24,433 Cooper V. Alden 296, 298, 312 V. Bigly 163, 164, 187, 361, 430, 419 «. Bremer 421 V. Cooper 582, 688, 604 «. Detroit 294, 297 V. Mayhew 213, 623 V. Ulmann 421, 434 Coots ». MoConnell 451 Corey v. Hiliker 8gr, 233 Cornell v. Hall 466 Corrie v. Corrie 595 Cote V. Dequindre 431 Courtwright v. Courtwright 698 Covell V. Cole 47, 435, 637, 843 ». Mosely 216, 819, 233 Covert V. Rogers 330 Cowie V. Fisher 437 Cowles V. Marble 426, 451, 46B, 478 INDEX TO MICHIGAK CASES CITED. PAGE Cox 0. Cox 582, 68« Craig V. Bradley 185 CransoQ v. Smith »40, 404 Crawford «. Edwards 429, 430, 4.i8 V. Fuller 159 Creasey ti. St. George's Society 64, 78, 185 Crevelingt?. Moore 33, 191 Crittenden v. Sohermerhom 253, 608, 609 Crippen v. Morrison 422, 423, 434, 449, 455 Crooks V. Whltford Cross V. People Crowner v. Crowner Cuddy V. Centreville Co. Culrer V. McKeown Cummings v. Freer Curtenius v. Hoyt Curtis V. Goodenow V. Shelden Cutter V. Uriswold 24 281 579 646 169, 236, 419 26, 435 91, 100, 436, 457, 470- 479 il2 D. D. & M. E. R. V. Brown 304 V. Griggs 461. 465. 557 D. F. & M. Ins. Co. v. Cir. Judge 35, 36 V. Kenz 39, 159, 192. 201, aiO, 213, 244, 419 24, 213, 219, 220, 636, 640, 642, 643, 645 536 46, 128, 208, 210. 245, 489, 529, 621 427, 554, 658 120,123 86,465 407 246 233,272 236 164 434,436,437,466 595, 59B 184 495 180, 123 422,433 138. 157, 159. 212 '421 526, 587 Daily s. litchfleld Dale V. Turner Damouth v. Slock Daniels v. Eisenlord V. People Darling v. Hurst Dart V. Woodhouse Davis V. Bush V Davis V. Filer V. Rider Dawson v. Danbury Bank V. Dawson De Armand v. Phillips De Millj). Pt. H. D. Co. De Myer v. McGonegal Dederick v. Barber Demaray v. Little Dennis v. Henningway Detroit v Martin Detroit Sav. Bank v Truesdail 154, 197, 218, 241, 420, 425, 449, 451 Devaux u. Detroit 525 Dewey v. Cent. Car Co. 35 V. Dwyer 16 Dexter ''. Cranston 284, 285 Dickinson v, Dustin 645 V. Beaver 20, 239, 565, 566, 648 Disbrow v. Jones 185, 444, 451 Doak V. Runyan 404 Dodere v. Brewer 452 Doughei'ty v. Randall 424 Dousman v. O'Malley 233 Downey v. Andrus 116 Doyle V. Mizner 233 Drake v. Andrews 217, 234 Drew V. Dequindre 36 Dubois V. Campau 71, 113 Dudgeon v. Haggart 514 Dumont v. Kellogg 298 Duncan v. Campau 211 Dimcomb v. Richards 567, 648 Dunn V. Dunn 119, 177, 618, 678, 591, 643 V. Superior Ct. Judge 166, 169 Durfee v. McClurg 86, 218, 223, 227 Button V. Ives 424 Dwight V. Cutler 637 Dye u. Mann 246, S47, 389, 479 E. Eames v. Eames 634 E. Saginaw & C. R. R. v. Benham 38 Eaton V Eaton 47, 200 V, Peck 233 V. Trowbridgfe 17, 525, 526 V. Truesdail 138, 140, 244, 246, 248 Eberts u Fisher 64,481,486,488 Edsell ». Briggs Edwards v. AUouez Min. Co. V. Hulbert Ehlers v. Stoeckle Eldred f. Camp Ellis V. Fletcher V. Upaulding Ellison V. Kittredge Elyv. Hergersell Emerson v, Atwater 47, 65. 17, 19, 69 289, 290 60,379 322, 406 69, 313, 406 236 246 91, 663 626 , 90, 134, 138, 140, 190, 219, 220, 465, 478 Emery v. Whitwell 194. 243 Emlaw V. Emlaw 119 Emmons v. Emmons 593. 696 Engel V. Hall ' 2.38 English V. Carney 218, 249, 421, 422, 436, 4.37 ». Maxwell 217, 227 Enos V. Sutherland 186, 208, 212, 466, 471 , 610 Eslow V. Albion 123, 169, 270 V. Mitchell 120, 412, 451, 514 Evans v. Norris 222, 242, 250 Eveland v. Stephenson 28 F. F. & M. Bank v. Bronson 210, 388, 432, 465, 467 V. Detroit 24 Farrand v. Bentley 242,243 Farrell v. Taylor 248 Farwell v. Johnston 60,646 Fary v. Otis 144 Fay «. E. & K. E. E. Bk. 298 Fellows V. Smith 413 Ferguson v[ Popp 4.52 Ferris v. Quimby 455,- 456 Fes.senden v. Hill 248 First Nat. Bank v. McAllister 404 Fish V. Morse 20 Fisher v. Forbes 408 V. Meister 426 V. Provin 431 Fitz Hugh V. Barnard F. & P. M. R. R. V. Aud. Gen'l 526 235, 29li V. Gordon 18, 433 Flanders v. Chamberlain 14, 18, 29, f.O, 79, 451 Fletcher v. Carpenter 424. 426 Folkerts v. Power 20 296, 306 Ford V. Loomis 79 436 447,643 Fo^dick V. Van Husan 79 451, 477 Foster v. Lake Co. 248 Fox V. Holcomb 295 V. Willis 412 Franklin v. Mansfield 227 Fraser v. Jennison 117 Freeman v. Michigan Bank 74, 406, 407 Frost V. Lawler 227 Fry ». Russell 452 Fuller V. Gr. Rapids 16,17 V. Parrish 451 Fury V, Stohecker 409, 629 G. Gale V. Gould 174, 175, 217, 253 V. Hammond 425,437 Gamber v, Plolden 16 XX INDEX TO MICHIGAN CASES CITED. PAGE Gamble v. E. Saginaw 21, 104 Gantz V. Toles 153, 233, 469 Garratt v. Litchfield 817, 218, 221 Geney v. Maynard 158, 171, 588 Gibbons v. Dunn 465, 648 Gies V. Green 371, 463 Gilbert v. Haire 153, 158 - V. Kennedy 886, 567 V. Showerman 17, 898 Gilkey v. Paige 77, 81 Gillett V. Needbam 49, 283, 885 Glidden v. NorveU 15, 17, 18, 29, fiO Glynn v. Pbetteplaee 412 Godfrey v. White 145, 235, 239, 487, 489 Qoeble v. Stevenson 187 Goldsmith v. Goldsmith 604 Goodenow v. Curtis 98, 101, 237, 248, 436, 467, 477, 479 Goodman v. Goodman 587,609 Goodrich v. Leland 470 V. White 480 Goodwin v. Bums 158 Gorham v. Arnold ' 464 ' u Wing 101,842 Gould V. Bailey 153, 457 V. Tryon 33, 381, 407 V. Vaughan a. E. & I. E. E. 1). Martin 186 117 G. E., N. & L. S. E. B. V. Gray 186 Graham v. Ehnore 63, 62, 109, 185, 190 Gram v. Wasey 258 Granger v. Wayne Circuit 420 Grant v. M. & M. Bank 818, 344, 249 Graves v. NUes 90, 359, 363 Grayson v. Church 323 Green v. Engelmann 307 V. Green 97, 102, 678, 579, 589 V, LELngdon 247 Greenmanr. O'Connor 140 Gregory v. Stanton 654 Gremer v. Klein 23, 182, 190, 483, 483, 495, 500, 505 Griggs V. D. & M. E. E. 10, 38. 51, 186, 187, 802, 246, 249, 334, 366, 361, 428, 449, 451, 455 Griswold -u. Fuller 18, 36, 149, 151, 158, 200, 316, 412, 526 Groesbeck v. Seeley 408 Grover v. Fox 152, 477 Gunderman v. Gunnison 184, 191, 192, 457 H. 36,483 117 811 H. Ins. Co. V. Owen V. Eeynolds Hack V. Norris Haddon v. Hemingway Haescig v. Brown 424, 425 Hagenbuch v. Howard 306 Haines v. Haines 205, 210, 212, 244, 246, 876, 534, 637, 644, 546, 651, 570, 603, 604, 605 V. Oatman 619 Hale u Chandler 16, 529 1). Holmes 461, 465. 657 Hall V. Harrington 389 V. Ionia 298 V. Kellogg 685 11. Eood 295, 297 Hamilton v. Hamilton 176, 594, 607 V. People 117 Hammond v. Mich. Bank 26 V. Place 96, 99, 269, 277 V. Wells 612 Hammontree v. Lott 84, 88, 465, 527 Hanchetti). McQueen 640, 648, 643 Hanf ord v. Eobertson 46U I Hanscomb v. Hinman .535, 588, 689 Harbaugh v. Cicotte 577 Hardwicku. Bassett 46,'85, 118, 114, 166, 171, 174, 188, 250, 447, 464, 465 Hardy v. Powell 525 Harmon v. Dart 116 Harris v. Deitrich 47, 100, 197, 841 Harrison v. Dewey 800 Hart V. Carpenter 84, 86 V. Undsay 53, 160, 158, 161, 201, 289, 668 V. McKeen 18, 26 Harwood v. Underwood 408, 435, 467, 643 Hatheway v. Mitchell 296, 298 V. New Baltimore 646 V. Weeks 302, 305 Haven v. Biedler Mfg. Co. 646 Havens v. Jones 489, 435 Hawkins v. Clermont 19, 89. 58 Hawley v. Jolly 645 V. Sheldon 634 Hayes v. Livingstone 239 Hazeltine v. Granger 315, 316, 423, 423 Hazen v. Eeed 186, 444, 448 Healey v. Worth 640 Heath v. Waters 184, 218, 237, 249, 450, 608 Hebelu Amazon Ins. Co. 36 Hedstrom v. Kingsbury 404, 413 He^iingway v. Griswold 481 V. Preston 291, 296, 311 Henderson v. Sherman 23, 25, 218, 648 Hendricks v. Toole 466, 667 Heniy v. Gregory 10, 20, 28, 28 Herrick v. Herrick 578 V. Odell 116 Herschfeldt v. George 405, 406 Hess V. Final 100, 213, 244, 246, 247, 364, 448, 45.5, 55T Hewlett V. Shaw 170, 207, 863 Heyn v. Farrar 121, 135 1 1 icks V, McGarry 458 Higgins V. Carpenter . 41, 202 High, Matter of N 577 Higman v. Stewart 429, 448, 468 Hildebrand v. Nibbelink 30 Hill V. Bowers 229 V. Bowman 86 V. Mitchel 235, 246, 249, 297 Hodson V. Van Fosson 23 HofE V. Hoff . 608 Hoffman D. Beard 481,483,484,491,492 V. Harrington 347, 423, 475 V. Eoss 58 Hogan V. Hogan 659 Hogsett V. Ems 422, 424 Holbrook v. Campau 20, 487 V. Winsor 453, 524, 528, 567 Holoomb V. Bonnell 248 Holman v. Gillette 23 Holmes v. Holmes 583, 586 Holthoefer v. Holthoefer 580 Hooker v. Axford 4r8 Hopson V, Payne 413 Horton v. Saunders 432 House V. Dexter 24, 97, 101, 242, 638, 640 How V. Camp 85, 412 Howard v. Bond 157, 161, 102 V. Palmer 130, 273, 415 V. Patrick 116 Howe V. Lemon 236, 443, 444, 467, 458, 463 Howell V. Merrill 24, 628 Hoxsie V.' Hoxsie 298 HoTle V. Page 148, 450 Hubbard v. McNaughton 16, 21, 379, 52D Hubbell V. Grant 84, .116 Huffman v. Press 18 Humphrey v. Hurd 423 lifDEX TO HICHIGAK CASES CITED. XSl Hungerford'v. Smith Hunt V. Thorn Hunton v. Piatt Hurlbut V. Dritain Hutchins v. Klmmell Hyde v. Powell Ingersoll v. Barnes V. Horton V. Kiiijy Innea v. Stewart Ireland v. Spaulding PAGE 448 84,636 26, 527 71, 72, 113, 247 241,242 404 455 636 18, 26, 233 51, 187, 429, 458. 459 231 V. Woolman 52, 149, 153, 286, 441, 554 Isbell V. Kenyon 150, ]5f) Ives V. Kimball 438 Jackeon v. Cleaveland Jackson Iron Co. v. Farrand Jackway v. J^xiiGon James v. Brown Jaquith v. Hale V. Hudson Jeffery v. Ilursh Jenkina v. Bacon Jenks V. Brown Jenne v. Marble Jenness v. Cir. Judge Jennison v. Haire qj Pfl,i*ker Jenny v. O'Flynn 39, 132, 201, 226, Jerome v. Hopkins V. Seymour 27, 104, 134, 171, Jewett V. Morris Johnson v. Johnson 28, 34, 265, 465, V. McKee V. Prov. Ins. Co. V. Shepard 33, 104, 210, 373, 374, 433, V. Van Velsor Jones V. Beeson V. Dean V. Detroit Chair Co. V. Disbrow V. Smith 19, 345, 412, 435, 457, V. Tyler Joslin V. Xillspaugh Joy V. J. & M, Plank Ed. 429, Judge V. Vogel K. Kairer v. Berry Keeler v. Ullrich Kellogg V, Aldrich V. Barnes V. Hamilton V, Pearl V. Putnam 29, 201, 828, 244, 250, Kephart v. F. & M. Bank Kerr v. Kingsbury V. Lansing Killam v. Aif ord Kimball v. Kimball V. Ward King V. Carpenter V. Harrington 48, 50, 51, 187, : 445, 483, V. Moore Kingsbury v. Kingsbury 138, 207, Kinney v. Washtenaw Circuit Kinyon v. Duchene 20, Kirehner v. Wood 405, 58,245, 448 153 231 454 468 525 63 118 39 19 514 250 IG ,194 159 ,189 117 236 246. ,463 39 116 80 456 457 528 638 421) 458, 463 21 406, 413 20 314 246, 406 59 246, 247, 253,261 219, 220 456 ■26, 175 247 116 244, 459, 455, 243, 245, 623 486, 523 23 209, 213 217 296, 306 647 Klein v. Klein Kline v. Moulton Kneale v. Kxteale Kraft V. Hatha L. S. & M. S. R. E. V. Hunt La Roe v. Freeland Lacy V. Wilson Ladue v. D. & M. R. R. Lamb v, Hinman V. Jeffrey 64, 170, 175. Lambert v. Griffith Lapeer Co. v. Hart Lapham v. Lapham Lapp V. Lapp Larke v. Orawf ords Larzeliere v. Starkweather Lathrop t'. Hicks Lawrence v. Fellows V. Jarvis Laylin v. Knox Le Baron v. Shepherd Leavitt v. Leavitt Ledyard v. Phillips Lee V. Clary V. Mason V. Wisner Leonard v, Taylor Lewis V. Campau Ligare v. Semple LiUibridge v. Tregent Lilly V, G-ibbs Linsley v. Sinclair Livingston u. Hayes 100,171, V. Jones Lockwood V. Beckwith V. Moliter Lorman v. Phoenix Ins. Co. Lothrop V. Conely V, Southworth Louder v. Burch Lyle V. Palmer Lyon V. Brunson V, Ingham Circuit PAGE 595 487 570 240,569 20 451 424 180, 452, 466, 469 218, 249 52S 212, 2.34, 61 ) 236,286 91 152, 248 221, 222, 279 51, 458 159, 210,-211 44.) 60.448 694; 695 157, 158, 212 420, 423, 435 152 116 158 207, 208, 209 461 51, 424, 458 453 408 435, 436, 448 433, 435, 437 451, 455, 457 248 238, 563 20 183, 186, 306 450 466 648 247 M. M. & M. Bank v. Kent Cir. 211, 212, 315, 316, 317, 318 385, 386 247 434 523, 664 457, 470 236 201, 207, M. & O. Plaster Co. v. White M. & O. R. R. V. TafEt M. Air Line Co. v. Barnes M. E. Church v. Clark M. Ins. Co. V. Brown 101, 222, V. Conant V. Whittemore 39, 210, 381, 234, 428, 194, S 213,^ McAuliffe V Mann McBride v. Cicotte V, Rea V, Wright McCabe v. Farnsworth 244, 246, 260, 261 464 378 46, 47, 218, McCaslin v. Camp McClintock v. Laing MoClung V. MoClung 184, 217, 593, MoClure v. Holbrook McCombs V. Meriyhew McCullough V. Barnebee V. Day McCurdy v. Bowman V. aark 236, 425, 39, 548, 607, 437 211, 213, 460, 564 261,288 219,642 579, 686. 608, 609 432 295, 321 260 243,404 217, 232 421,443 XXll INDEX TO MICHIGAif CASES CITED. PAQE PAOE McDonald v. McDonald 51 , 428, 429, 568 Motz V. Detroit 20,306 V. Lewis 243 Moulton V. Mason 116 McEwan v. Zimmer 458 Moynahan v. Moore 451 McGoren v. Avery 169 Munch V. Shabel 68, 100, 101, 227,228, McGraw v. Pettibone 461, 455, 557 408 634 McGunn v. Hanlin 110, 634 Mundy v. Foster 116,643 McHugh V. Wells 470, 637 V. Monroe 283,423 McKee v. Gr. Rap. E. E. 448 Munsell v. Green 643 MoKeon v. Harvey 116 V. Loree 642 McKibben u Barton 404, 406, 412 Murphy u Stever 637 McKinney u McKinney 183,594 Murray v. Morosa 466 u Miller 154, 422, 485 Myer v. Hart 236 453,454 MoMurtrie v. Bennette 633 , 634, 638, 642 Myerfleld v. Stettheimer 237 MoVicker u Filer 19; 108 Mabley v. Superior Court 307 N. Mack V. Doty 19 Magahay v. Magahay ' 583 Newark v. Newark 183. 595 Mandeville v. Comstoclc 84 Newbold v. Stewart 180 198. 212; 216 Manning u Drake 21,60 NeweU v. G. W. E. E. 36,39 Manwaring u. Powell 431 Newton u McKay 422 Marble v. Marble 578 «. Sly 488,423 Markbam v. Markham 23 Nichols V. Lee 424 Marquette E. E. v. Marquette 296, 527 Niles V. Eansford 424,426 Martin v. McMillan 454 Nims V. Nims 64S V. McEeynolda 24, 818, 246, 424, 426, ^ 431, 433. 435 Norris V. Hill V. Hurd 295 297, 308 24, 144 Marvin «. ScMlUng 469, 487, 624 V. Showennan 638 Marwick v. Elsey 224,425 North V. North 534 537 604,608 Mason v. Det. Bank 90 V. Kellogg 228 0. V. Payne 153, 300 Match V. Hunt 79 ,183 184, 187, 218 O'Brien v. Kusterer 456 Matson v. Melchor 144 404, 413, 467 O'Connor v. Parker 237 Matteson v. Morris 76, 84 447, 466, 479 O'Flynn v. Eagle 231 234, 242,243 Mattison v. Marks 427 V. Hobnes 243 Maxfleld v. Freeman 207, 208, 212, 236, 248, 374, 610 Oliver v. Shoemaker 218, 249 Ormsby u Barr 247 248 523,626 V. Willey 440,441 Outhwite V. Porter 51,458 Maxwell v. Bay City Br. Co. 239, 566 Mayhew v. Phcenix Ins. Co. 554 P. Maynard v. Brown 635 V. Hoskins 219, 220, 221, 222, 232, 406, 408, 412 Page V. Stevens 144 ■u. Webster 486,488 V, Pereault 369, 421, 466 Palmer v. Napoleon 306 Mead v. Commissioners 236 V. Palmer 586 604,608 Mercer v. Williams 297 V. Eioh 16, 20, 101, 173, 242,243, Merrill v. Aud. Gen'l 296, 306 896, 306 V. Montgomerr 36,483 V. Sterling 408 Messmore v. Haggard Mich. State B'k I). Hasting 404 Palmiter v. P. M. I^um. Co. 163 3 182,184,297,301 Parker v. Parker 65,68 Michaels v. Stork 39 Parks V. Allen 452 464,478 Miokle V. Maxfleld 27, 149 187, 205, 206, 220. Parsons v. Copland 222,231 237, 369, 371, 373, 436, 448, 463 Patrick V. Howard 20 Mlddlesworth v. Nixon 436 Patterson v. Hopkins 181, 208, 213 Middleton v. Flat Eiv. B. Co. 298, 308 Patton V. Bostwick 20 Miles V. Skinner 421 Payne v. Atterbuiy 81 296 316, 321 Millar v. Babcock 406,412 V. Avery 26, 153, 148, 440,483 Millard v. Eamsdell 84 V. Paddock 312 V. Truax 468 u Webster 26 Miller v. Qrandy 20, 26, 296, 306 Pease v. Warren 486 V. Morse 19 Peck V. Burgess 69, 78 V. Stepper 17,19 V. Cavel 33 V. Thompson 429, 430, 458 V. Houghtaling Peckham v. Buffam 589 Minock v. Shortridge Moore v. Bamheisel 459 435,643 649 Peltier v. Peltier 277 297, 310, 548,605 V. Cheeseman 28,897 People V. Aud. Gen'l 35 V. Ellis 218, 222, 232 V. Barry Circuit 168 V. Olin 219 V. Bristol 276 Moote 11. Scriven 156, 196. 241. 253, 638 V. Brooks 381 Moran v. Palmer 19, 21, 101, 240, 447, 448, 534 | V. Calhoun Circuit 212,278 Morey v. Forsyth 410,411,426,488 | V. Carpenter 298 V. Grant ti47 V. Curtis / 22,24 Morris v. Hadley 19 V. Dawell 577 u Hoyt 24 84, 636, 640 V. DeMill 26 V. Morris 85 212, 244, 435, 447 V. Gladwin 236 Morrison v. Berry 466 V. Hunt 69 Morton, Matter of 547 V. Ionia Circuit 133 IKDEX TO MICHIGAN CASES CIIED. XXIU People V. Jackson Co. PAGE 663 Reeves v. Scully PAGS 239, 424, 568 V. Jones 309 •29e , 320, 321, 551 Regents v. Rose 218 V. Judge of 7tli Circuit 331 Reynolds v. Green 475 v.Kea 39 Rbead v. Hounsou 414 uKidd 297 Rice V. People Richard V. White 281 V. M. Gasliglit Co. 8 644 V. Manistee Circuit 122 Richards v. Morton B, 10, 157 V. Marble 69, 116 V. Tozer 246 V. Oakland Circuit 283 Richmond u Robinson 641, 645 V. Oakland Co. Bank 35 Riokle V. Burrall 19 V. Pt. Huron Circuit 374 V. Dow 307 V. Probate Judge 20 Ringi;. Burt 645 V. Randall 181 Riopelle v. DoeUner 13, 37, 122, 378. 379 V. Rodiger ~3 Ritson V. Dodge 160, 183, 636, 643 V. Sag. Circuit 3) Robert v. Morrin 620 V. Simonson 210 295,296,311, Roberts D. Miles 19, 84, 85 535, 5b 1 V. Miller 343, 612, 617 V. Slack 574 Robertson u Corsett 455, 468 V. Smith 348 V. Gibb 346,219 V. St. Clair Circuit 295,896,320,333 Robiiison v. Baugh 34, 26, 298, 308 V. Superior Court 263 V. Boyd 413 II. Supervisors 329 V. Cromelein 76. 84. 479 V. Sutherland 238 Estate, Matter of ' 827 V, Van Buren Circuit 853 V. Hoyt 467 V. Wayne Circuit 20, 56, 238 V. Robinson 203, 596 V. Wilson 184 Rogers v. Anderson 234,238 People's Ice Co. v. Excelsior 263 V. udeU 645 Perkins v. Perkins 11, 67, 69, 185, 187, 205, Roland v. Doty 17, 523. 624 210, 213, 234, 321, 334, 339, 341, 361, Romeyn v. Caplis V. Hale 210, 311, 661 439, 443, 449, 597, 605, 606, 607, 610 211 Perrettu Yarsdorfer 465 Rose V. French 334,237 Perrien v. Fetters 49, 283, 285 Rosenthal v. Scott 468 Perrin v. Kellogg . Pettitord v. Zoellner 816, 210 Ross V. Ross 603 33, 49. 183, 577 Rowe V. Rowe 120,123 Phillips V. Stanch 246, 247, 643 Rudd V. Rudd 582 Pioard v. McCormick 635 Buggies V. Bank of CentreviUe 157. 159 Piekard v. Polhemus 120 Russell V. Merter 633 Pillibuiy V. And. Qen'l 308 V. Miller 408 Piatt V. Stewart 36, 48 51 283, 285, 286 V. Sweezey 438 Pogodzinski v. Kruger 529 V. Waite 63 Pool V. Horton 235 Rust V. Bennett 116 Porritt V. Porritt 582. 583. 596 Ryan v. Brown 396. 297 Pt. H. & G. T. R. R. ■/. Circ. Judge 35, 209, Ryerson v. Eldred 147, 162, 187, 341, 871, 374 295, 321 Rynearson v. Fredenburg 187, 468 Port Huron v. Jones 209, 320, 321 Portage Lake Co. v. Hass 236 s. Potts V. Plaisted 453 Powell V. Conant 637 Sacket v. Hill 279, 312 Power's Appeal Powers V. Gf. Lumber Co. 233 Sage V. Riggs 464 235,236,466,479 Sager i). Tupper 165, 324, 289, 247, 249, 462, 469, 478 V. Irish 231 Pratt V. JjBwia 58, 218, 298 Salisbury v. Miller 78, 98, 523 Prentis v. Rice 211 Sallee v. Ireland 233 Preston v. Ryan 425 Sailing V. Johnson 211, 296, 296, 320, 321 V. Wilson 407 Sanborn v, Robinson 224, 225, 247 Proctor V. Robinson 218, 437, 453 Sandford v. Flint 475 Prosser v. Whitney 213, 220, 554 Sands v. Finan 247 Prout V. Wiley 529 Sawyer v. Sawyer 136 Pulter V. Giller 404 V. Studley 239,584 Pursell V. Armstrong 404 Scales V. 6ri£Qn School Dist. V. Dean 510 298 R. V. Webster 381, 382 Schratz v. Schratz 116 Ramsdell v. Eaton 436, 654 Schwab V. Coots 314, 243, 547 V. Maxwell 161, 162, 296 V. Mabley 39, 647 V. Millard 813 634, 638, 643 Sohwarz v. Sears 14, 60 77, 158, 134, 140, Randall v. Randall 678 312, '387, 389 Ransom v. Ransom 408 V. Wendell 66, 68, 76, 77, 81, 84, 85, V. Sutherland 463 486, 479 Rath V. Vanderlyn 465 Schofield V. Lansing 20, 26, 306, 527 Rathbone, Estate of 20 Scott V. Hush 638 Raymond v. Hinckson 226,233 V. Scott 230, 233, 347 V. Shawboose 644,645 ScraflEord v. Gladwin Co. 335 Rayner v. Lee 525 Bcribner v. Doseman 231 Ready v. Keaisley 408 V. Gay 242, 343, 253 Reed v. Baker 182, 822, 405 Scripps y. Foster 117 V. Weasel 26 Scriven v. Huish 196, 310, 449 XXIV IlfDBX TO MICHIGAN CASES CITED. PAGE Sea,TS V. Sohwarz 101, 242, 243 Seevers v. W. B. Wheel Co. 323 Sellers v. Botsford 216 Seymour *. Jerome 103 Shaf er v. Shafer 210, 608 Shannon v. Smith 163 Shaw V. Shaw 810 Sheahan v. Wayne Circuit 620, 624, 625 Sheldeu v. Bennett 428 *. Hawes 196, ajl V. Walbridge 20, 379 V. Warner 432, 437, 457 Shepard v. Shepard 85, 436 Shepherd v. Eice 210, 244, 245, 250, 492, 607 Shermer v, Merrill 444 Shoemaker v. Gardner 23, 101, 432 s. Shoemaker 436, 578 Shook V. Proctor 77, 85, 217, 218, 232, 447, 465 Showers v. Morrell 235 Shotwell ». Harrison 434 Sibley V. Baker 154 Sikes V, Crissman 558 Sill V. Ketchum 24, 433 hiimons v. Simons 594 Simpson v. Mansfield 217, 213 V. M. 0. & L. M. E. E. 36 Skillman V. SkiUman 604 Slater ». Breese 99, 101, 138, 140, 164, 156, l!i7, 244, 248, 436 Sloan V. Holcomb 448 Smart v, Howe 281 Smith V. Austin 467, 475 V. Brown 80 V. Lawrence 633, 635, 636 V. Mitchell 222 v. Osborn 439, 413 «. Eumsey , 17, 59, 79, 234, 645 V. Sag. Bank 52, S3 V. Smith 39, 47, 86, 184, 248, 273, 459, 461, 462, 654, 621, 682, 623 V. Thompson 406 Snyder v. People 116 Soper V. Soper 578, 686 Soule V. Hough 33, 442 Southworth v, Parker 154 Spear v. Hadden 152, 448, 450 Spencer ». Fish 232 V. Steams 212, 314 Spoon V. Baxter 19 Sprague v. Soule 380 Stafford v. Hulbert 406 Stansell v. Corning , 132 State Bank v. Chapelle 419, 466 Stebbins v. Field 263 Steinbach ?;. Hill Ig SteUer v. Steller 205,380, 536, 670, 005 ■ Stetson «. Cook 535 Stevens v. Brown 423 V. Townaend 832 Stevenson v. Jackson 644, 845 Steward v. Dixon 231 V. Stevens 406 Stewart v. Ashley 465 V. Bruen 306 V. Oarleton 529 Stickney v. Parmenter 24, 564, 640, 643, 645 Stockton V. Garland 217, 287 V. Williams 17, 53, 63,79, 144, 379, 286, 624 Stokoe «. Upton 466 Stone V. Wefling 27, 33, 38, 39, 51, 182, 186, 467 Storey v. Bird 237 Story 1). Story 601, 602, 603 Stout V. Sawyer 509 Street v. Dow 185, 633 Streeter v. Paton 120, 132, 123, 497 V. Tilden 46 PAQE Stuart V. Stuart 579, 594 Suhr. V. Ellsworth 448 Sailings v. Goodyear D. V. Co. 33, 297, 810, 811 Summers v. Bromley 161, 234, 432, 434, 437 553 Suydam v. Dequindre 24, 134, 138, 244,' 269 Sweetzer ». Mead 242, 243 Swetland v. Swetland 37, 134, 466 Swift u Applebone 134 «. Plessner 463 Switzer v. Gardner 637 Tabor v. Cook 525, 526 Tawas E. E. v. Iosco Circuit 209, 395, 296, 316, 517 Taylor v. Boardman 195, 820, 322, 239, 241, 871, 569 V. Gladwin 149, 199, 205, 206, 273, 607, 608, 610 V. King 26, 488 V. Snyder 24, 314 V. Sweet 309, 3i;o V. Whittemore 429 Teachout, Matter of 281 Teed v. Martin 236, 554 Tefft V. Stewart 17 19 Teft D. Tef t 573 Teller v. Wetherell 431 Terry v. McCUntock 187, 205, 856, 361, 459 V. Tuttle 424 Thayer v. Lane 20, 21, 47, 58, 79, 86, 171, 190 273,435,447,448, 459, 483, 468, 623 11. McGee 183, 186, 269, 425 V. Swift 135, 279, 286, 294, .S31, 404. 406, 407, 593 Thomas v. Gain 20, 101, 173, 242, 527 «. Stone 65, 69 Thompson v. Ellsworth 535, 5.38 V. Howard 110 V. Jarvis 241, 371, 450 V. Mack 466 V. Eichards 305 V. Thomas 48 Thome ^)^Hilliker 140, 244 Thurston v. Prentis 181, 190, 469, 478 Tilden v. Streeter 441 V. Wayne Circuit 252 Tillman «. Shackelton 34 Titus V. M. Min. Co. 24 Todd V. Davis 423 Tong V. Mann 20 V. Marvin 16, 187, 539 Torrans v. Hicks 83, 34, 47, 49, 51, 139, lei, 183, 200, 382, 285, 449 Torrent v. Musk. Boom. Co. 217, 219, 227, 291 525 V. Eodgers 82', 379 Torrey v. Wayne Circuit 20 Tower v. Divine 432 Town V. Bank of Hiver Eaisin 319 Townsend v. People 120 Trask v. Green 408, 412 Treat v. Bates 308 Tregaskis v. Superior Court 647 Tremper D. BanKs 323 Trowbridge v. Harleston 164 Tucker v. Alger 21 V. Tucker 353, 439, 443, 444 Turner v. McCarty 439 Twiss V. George 116, 633, 637, 642 Tyler v. Peatt 33, 51, 187, 406, 407, 408, 458 IKDEX TO MIClIlGAX CASES CITEB. xxr U. Udell V. Kahn 152 Underbill v. Musk. Boom. Co. 237 Underwood v. Waldron 35 University ». Eose 218, 223 Upjohn V. Bd. of Health 296 V. Van Aken i>. Gleason 436 Van Deusen v. Newcomer 117. 224, 238 Van Dyke v. Davis Van Husan v. Kanouse 79. 80, 84, 448 461, 453 Van Sickle v. Gibson 286 Van Slyck v. Skinner Van Wert v. Cbidester 249 116 234, 237, 465 653, 668 Vannetter «. Crossman 241, 242, 278 Vary v. Shea 78, 387 Vaughn v. Nims 152, 439, 440 441, 443, 444 Verplank v. HaU 101, 22!J, 243 311, 528, 545 V. Mer. Ins. Co. 646 Viekery v. Beir 335 Voorbees v. Sessions 323 Voorhies v. Frisbie 19 Vosburgh v. I-aw 454 W. Wadsworth v. Loranger 117,465 Wagar v. Briscoe 149, 509 «. Stone 322, 422, 423 Waite V. Bovee 431 Waldby v. Callendar 123 Waldron v. Murphy 452 Wales V. Bank of Mich. 19 V. Lyon 448 V. Newbould 17, 20, 26 , 27, 466, 643 Walker v. D. T. Co. 465 u. Hull 621 WallfM-.e V. Dunning 67, 69 187. 834, 449 V. Harris 17, 18, 79, 491, 645 V. Hdge 636 Walsh V. Vamey 169, 339, 496 Walton V. HoUywood 648 Wanzer v. Blancbard 432, 447 Ward V. Jewett 46, 134, 237, 564 V. Ward 116,248 Warner v. Juif 39, 147, 148, 181, 195. 241, 449, 450 V. Eandall 121, 440 V. Whittaker 216, 218, 219, 231 ,'232, 246,249 Warren v. Slade 233 Watch V. Hurst 608 Waterman v. Seeley 403 V. Toms 237 Watson V. Hinchman 39,201 V. Wayne Circuit 36 Wattles V. Warren 222 Way V. Stebbios 20 Weare v. Linnell 408 Webb V. Eowe 496 i;. Williams 110 Webster v. Bailey 835 V. Gray 638 V. Hitchcock 11. 67 69, 187, 206, 210, 334, 335, 361, 449 Weed V. Lyon 207, 219, 232 i). Terry 637,646 Welles V. River Raisin Co. 379 Wells V. Booth 286 V. Elsam 16 Westu Laraway Westbrook v. Comstock Westcott V. Minn. Min. Co. Wetherbee v. Brooks ■B. Green Wharton v. Fitch Wheeler v. Arnold V. Budell V. Clinton Co. Bk. Whipple V. Brown V, Farrar PAGE 512 86. 620, 624 23, 24, 175 466, 466 423,466 406,407 116 456 19. 24, 26 130.645 19, 161, 296, 623 V. Saginaw Circuit V, Stewart V. Williams White V. Forbes V. Smith Whiting V. Butler Widner v. Lane V. Olmstead Wight v. Maxwell Wilcox V. Allen Wilkins V. City Wilkinson v. Green 26, 432, 437 Willard v. Magoon 177, 611, 617, 518, 620 Willets V. Mandelbaum 629 Willey V. KildufE 227 Wilhams v. Guarde 654 D. Hubbard 18, 403, 404, 406, 407, 409. 411, 413 39, 130 280 17, 296, 298, 308 86 234, 237, 247, 484, 485 449 187, 298, 361 23 388, 421, 469 u Mayor 18, 79. 296 Wilson V. Eggleston 21, 174 175, 642 V. Jones 512 V. Wagar 248,451 V. Wilson 224,240 642, 643 Winans v. Wilkie 429,430 Wing V. McDowell 445 V. Warner 182, 212 Wisner v. Famham 388 Wixom V. Davis 19 Wood V. Parsons 323 V. Savage 412 •u. Truax 86,241,337,360,461,469,624 Woodbridge v. Detroit 20, 296, .906 Woodbury u Lewis 478 Woodmansie v. Holton 222 Woodrufe V. Ives 39 V. Young 24. 26, 39 Woods V. Love 432, 433 ■0. Monroe 115, 284, 304, 627, 629 Woodward v. Chester 226, 236, 247 V. Oark 24, 640 Wool, Matter of 247 Wright V. Dudley 101, 222, 243, 251, 263, 438 V. Hake 19. 307 V. King 19, 379 V. Smith 234 V. Wilson 116 V. Wright 185, 248, 250, 577, 584. 609, 642, 643 Wuroherer v. Hewitt 484, 436, 437, 449, 643 Wyandotte Mill Co. v. Robinson 6 Wyckoff V. Victor S. M. Co. 19, 649 Yelverton v. Steele Youell V. Allen Young V. McKee Youngblood v. Sexton Z. Zeigentuss ". Zeigenfuss Zoellner v. Zoellner 159 642 250, 448 26,248 604 332,341 INDEX TO CASES CITED OTHER THAN IN MICHIGAN. PAQE PAGE A. Beekman v. Frost 476 Bell V. Hunt 880,382 A & K. E. R. T. A. B. R. Oo. 548 Bellott's Case 266 Abel V. Cave 111 Benedict v. Oilman 476 Ackroyd v. Aekroyd 539 V. Lynch 635 Adams V. Claxton 140 Bennett v. Winter 197 V. Dowding 368 Benson v. Leroy 408 Albany Bank v. Harris 273 Best V. Btow 635 V. Schermerhorn 538,541, Bettes V. Dana 340, 352 544 546,647 BiiMey v. Biddle 183 Aldrich V. Cooper 154 Bigelow V. Bush 429 Allan V. AUan 396, 398 Biggs, Ex Parte 534 Allen V. Fub. Admin. 117 Billings V. Carver Bleakley, Matter of 538 Amer. Ins. Co v. Oakley 54 634 Anderson v, Mather 62S Blecker v. Bingham Bloodgood 1). Clark 378 V. White 63B 262 Andrews v. Hobson 3S9 Bogardus v. Trin. Church 67,72 Angell V. Hadden 381 384,385 Bogert V, Furman 461 Armstrong v. Armstrong 693 Botts V. Cozine 110 V. Pratt 387, 391 Bound 1 . Wells B50 Arnold v. Styles 348 Bowditoh !). Soltyk 660 Ashe V, Berry 6r.o Bowyer v. Bright 366 Atkinson v. Manks 381 386, 559 V. Pritchard 385 Matter of 631 Boyle V. Laird 643 Att'y Gen'l v. Foster 353 Boynton v. Boynton 343 V. L. & F. Ins. Co. 319 V. Jackway V. Richar(&on 161 V. Mid. Kent. E. W. 292 569 V. Nichoi 307 Bradshaw v. Outram 431 V. Shield 548 Brainard v. Cooper 429 Austin V. Bainter 176 Braker v. Devereaux 486 Aymer v. Gault 385,386 Braman v. Wilkinson 388, 390 Brangerv. ChevaUer 140 B. Brasher's Ex'rs v. Tan Cortlandt 272 Brayton v. Smith 328 Badeau v. Rogers 380 381, 385 Brennan v. Whitaker 465 Bagnall v. Bagnall 368 Brewster v. Power 408 BaUey v. Bailey Baker v. Lorrillard 560 Bridewell v. Clark 613 626 Bridgen v. Carhart 445 Baldwin v. Mackown 364 Brink v. Morton 177 V. V. S. Tel. Co. 93 BrinkerhofC v. Lansing 477 Bank of Ogdensbm-g v. Arnold Ontario v. Strong 443 V. Marvin 164 51,443 Brinkley v. Brinkley 648 Orleans v. Skinner 29,604 Brockway )'. Copp . 77 Broderick v. Smith 536,554 Utica V. Messereau 76 436 Barber v. Barber 649 Bronson i. Kinzie 470 Barclay v. Brown 188 V. La Crosse E. E. 88 Baring v. Moore 16S Broughton v. Martyn 549 Barker v. Belknap Matter of^ 391 Brown v. Andrews 511 87 V. HafC 279,327 Barnes v. Hazleton 623 i>. Lee 549 Barron v. Martin 470 V. Martin 361 Barry v. Abbott 404 V. Nichols 412 Bartlett v. Fifleld 370 V. Eicketts 99 Basse v. Gallegger Batohelder v. Batchelder 436 «. Swann 378 683 V. Wallis 465 Bates V. Loomis 234 V. Wynooop Brnmley v. West Chester Co. 182 Battle V. Griffln 566 88 Barter v. Farmer 396 , Bryant v. Haight 604 Beach v. Beach 678 Burhans v. Burhans 481 Beaucamp v. Putnam 172 Bums V. Morse 305 Beck V. Burdett 405 Burr V. Beers 429, 458 Bedell v. Hoffman 381 386,559 V. Burr 592 Beebe v. Grifflng 481 Burrell v. Leslie 412 XXVIU INDEX 10 OTSBR THAIS' illCHiGAN CASES CITED, PASS Burton v. Haloon 34 Bush V. Connelly 517 Bushnell v. Harford 894 Byington v. Boolwalter 467 Byrne v. Byrne 685 Cadman v. Homer 635 Cage V. Iler 431 Cahen v. Cent. L. Ins. Co 117 Calkins v. Calkins 305 «. Munsel 468 Campbell v. Bowne 333 V. Dearborn 465 V. Gardner 159 ®. MsCahan 586 V. Mesier 184, 193, 332 Candler v. Pettit 360 Canfield v. Morgan 560 Cameal v. Banks 190 Carson v. Coleman 313 Cartwright v. Clark 391 Cassidy v. Meacham 413, 414 Catlin V. Hamed 560 Catton V. Earl of Carlisle 367 Chambers v. Goldwin 473 Cheever v. Wilson 649 Chr. Hospital v. Grainger 313 Church V. Jaques 553 City Bank v. Bangs 185, 381, 384, 885 Clapp V. Bromaghau 480 Clark V. Beach 464 V. Hall 194 V. Phelps 59, 93 V. Eeed . 556, 565 V. Reyburn 6 V. Willoughby 140 Clarkson v. De Peyster 60, 404 Clement v. Kimball 578 Cleveland ij. Burrill 185 Coale V. Barney 633 Oockerell v. Cholmeley 110 Codwise v. Gelston 264 Coffey u Coffey 158 Coleman v. Cross 110 Collins v. Biggs 471 V. Torry 434 Colt V. Lasnier 173 Columbia B. Co. v. De Golyer 333 - Com. V. Cambridge 183 Conant v. Sparks 414 Congdon, Matter of 626 Conner u Drake 634 Cooku Cook 597 V. Heald 517 Cooke V. Gwyn 355 Cookson V. Bingham 661 Cooper V. Williams 296 Corey v. Gerteken 173 Corning v. Baxter 365, 439 V. White 413 Cornish v. Tanner 381 Coster V. Clarke 213 Cousin u Allen 467 Cowdin V. Cram 336 Coxe V. Smith 481, 488 Creps V. Baitd 183 Croghan v. Livingston 486, 637, 630 Crosier v. Acer 174 Croskey v, Corey 614 V. L. W. M. Co. 514 Cumberland v. Codrington 458, 471 Cumming v. Waggoner 541 Cummins -u. Bennett 301 Cunningham v. Cassidy 153 Curling v. Townshend 90 PAGE Curtis V. Allen 439 V. Tyler 458 Cuyler v. Coats , 569 D. Dale V. Eosevelt 196 Darcy v. Hall 476 Darlington's Appeal Davenport v. If.elly 100 412 Davies v. Davies 600 Davis V. Bluck 369 , 374 V. Hawley 567 Davison v. Sohermerhorn 93 Day V. Newman 388 V. Potter 349 De Carters v. La Farge 213 De Peyster v. Graves 311 De Rose v. De Rose 604 Bean v. Gridley 564 V. Smith 329 Decker, Ex Parte 122 V. Miller 568 Delahayu Clement 514 Delliber v. DelUber 593 Demarest v. Wyncoop 470 Denton^. Denton 329 Devanbagh v. Devanbagh 580 Dexter v. Arnold 369, 370 371, 373 375, 376, 3T7 ,473 Dias V. Merle 90 , 360, 370 ,634 Dickerson v. Tillinghast 69 Dilleber v. Home Ins. Co. 117 Donerey v. Topping Donley v. Hays 278 431 Donne v. Lewis 193 Doubleday v. Newton 494 Douglass V. Sherman 331 334, 337, 340, 341, 353 ,467 Dow V. Jewell 203 Downer v. Fox 427 Dows «■ MoMichael 71,72 ,113 Drew V. Harman 414 Dumond v. McGee 83 Dungrey v. Angove Diinham v. Jackson 325 383 326 Dunkley v. Van Buren 463 Dupont V. Ward 550 Durant v. Essex Co. 347 Dwight V. Humphreys 29 V. Webster 436 Dyckman v. Kemochan 264 ,308 E. Eager v. Price 363, 368 412 Eagle F. Ins. Co. v. Lent 432 Eameston u Lyde 408, 409 413 East Ind. Co. v. Henchman 648 Eastman v. Batchelder' 358 Easton's Will. Matter of 530 Eaton V. North / 467 Edington v. Mut. L. Ins. Co. 117 Edmunds v. Crenshaw 647 Egleston v. Kniokerbacker 448 Efchart v. Dearman 314 Eldridge v. Hill 523 Ellingwood v. Stevenson 648 ElUott V. Balcom 369 V. Pell 181 190 V. Warford 315 Ellison V. Daniels 424 Ehnendorf v. Lansing 308 England v. Downs 559 Engle u Underhill 420 Erie E. W. v. Ramsey 646 Erwin v. Cunningham 396 INDEX TO OTHEE THAN MICHIGAN CASES CITED. Xxix Evans v. Clement 370 V. Evans 584 Everts V. Becker 34 F. r. L. & T. Co. V. Seymour 342, 345, 354 Fallowes u Williamson 344, 354 Fanning v. Dunham 277 Farley v. Blood Farrelly v. Woodford 382 215 Faure v. Winans 440 Fell V. Brown 472 Fellows V. Fellows 308, 410 Fei-guson v. Ferguson 439 Ferris V Ferris 436 Field V. Hunt 548 V. SchieflEelin 387 390, 391, 395 Finley v. U. S. Bank 428 Fish V. Miller 71 Fisher v. Worrall 635 Fitts V. Davis 526 Fletcher u. holmes 391 Florence v. Hopkins 481 Foot V. Stevens 483 Forgay v. Conrad 215 Forman v. Marsh 629 Forster v. Davies 5B2 Fort V, Ragiisin 118 Foster v. Foster 334, 359 V. Hodraon Foumiquet o. Perkins 374 256 Franklin v. Hunt 139 Frelinghuysen v. Golden 161 French v. Shoemaker 215 V, Shotwell 203 Frits, Matter o£ 618, 619 Frost u Belmont 562 Fryatt v. Sullivan 556 Fulton V. Rosevelt 619, 621 Fulton Bank v. N. Y. & S. Canal Co. 83, 865 G. Gaines v. Gaines 609 Gale V. Abhott 293 Gallatlan v. Cunningham 388,391 Gardner v. Gardner 559, 593 u Hall 514 Garnsey v. Rogers 458 Garr v. Bright 553 Garth D Ward '367 Gaty V. Casey 511 Geary u. Sheridan 200 Georgia Lum. Co. v. Bissell 326 Gernon v. Boecatine a30 Gibbs V. BlackweU 640 Gibson v. Reese 46 Gilbert v. Gilbert 56 Goelet V. Lansing 200 Goldsmith v. Osborne 467 Gompertz v. Best 530 Goodenow v. Ewer 428 Gooding v. Riley 474 Goodrich v. Pendleton 67, 68, 558 Governor v. Elmeudorf SO Grant v. U. S. Bank 445 Gray v. Campbell 549 V. Davis 642 Green v. Hart 421 V. Slayter 424 V. Thompson 649 Greenlee v. McDowell 370 Gregory «. Campbell 256 V. Mnlesworth 621 Gregson v. Oswald 351 Grew V. Breed 204 Griffith V. Merritt Gully V. Van Bodicoate Guthrie V. Jones H. Hackett V. Connett Uaight V. Case Haines v. Beach V. Thompgon Hall V. Doran V. Hoddesdon Halsey v. Reed Hamersly v. Lambert 1 lamilton v. Cummings V. Lubukee V. Marks V. Morris Hamlin v. McGilUcuddy Hammersly v. Barker Hansard v. Hardy Harding v. Handy Hardy v. Hull Hargrave v. Hargrave Harman v. Harman Harries v. Johnson Harrington v. Becker Harris v. Pollard Harrison v. Harrison Harwood v. Kirby Hasbrouck v. Hasbrouck Hatcher v. Hatcher Hatheway v, Scott Haven v. Jones Hawley v, Bennett V. Donnelly V. Henderson Haynes v. Ball Hayward v. Kat. Bank Head v. Head Heartt v. Corning Heerdt v. Wetmore Hegeman v. Wilson Hemiup, Matter of Henderson v. Hays Hendricks v. Decker Hepburn v. Lordan Hewlett V. Adams V, Dement Hewlett V. Brown Higbie v. Edgarton Hill V. Ressegieu Hobart V, Abbot Hodgen v, Guttery Hodges V. Smith w Hoff 's Appeal Hoffman v. Livingston V. Skinner V. Tredwell Hofmire v. Hofmire HoUister v. Hollister Holmes V. Bardely Holridgev. Gillespie Hone V Woolsey Horn V. Pullman Horwood V Schmedes Hosford V, Merevin Houghton V. Barney Howard v. Harris Howland v. Blake Hubbard v. Guild Hudgins v. Kemp Hull V. Thomas Hunt V. Wallis Hunter V. Blanchard Hurst, In Be Hydeii. Forster 109 455 455 313 428 465 IT 7 400 458 693 523 471 ,384 491 414 534 479 ' 617 593 360 358 349 585 603 119 638 265 21 332,537 281 514 650 171,448 606 70, 76 534 303, 306 308,554 635 90 293 100 600 667 272,377 631 474 626 386 458 262 666, 568 270, 337, 494 691 692 393 464 411 117 343 481 665 465 465 317 215 537 52, 63, 272, 279 613 ^ 514 351 XXX INDEX TO OTHER THAN MICHIGAN CASES CITED. I. PAGE Inness v. Jackson 173 Ins. Co. V. Day Irvin V. Bleakley 286 636 Irving 1). DeKay 390, 560 J. Jackson v. Edwards 277 483 V. Grant 390 V. Purnell 109 Jacomb v. Knight 292 James v. Downes 310, 311 JefEres v. Cochrane 412 Jenkins v. Cont. Ins. Co. 469 V. Van Shaack' 481, 482 V. Wilde 304, 305, 306 Jesson V. Brewer 191 Jewett V. Palmer 69 Johnson v. Clendenin 327 V. Johnson 21, 590, 693 r. Pinney 64S Johnston v. Glancy 638 Jones V. Grant 181, 478 V. Jones 173 359, 360, 381 V. Powell mi V. E. E. Co. 604 «. Eoberts 264. K. Kempf V. Kempf 685 Kennedy v. Kennedy 387 Kershaw v. Thompson 161, 206 ICing V. Donnelly 361 «. Bay ' 78 V. Strong 659, 560 V. Whitely 429 Kinne v. Smith 464 Kipp, Matter of 119 Knight V. Knight 398 Knott V. Cottee 659 Knox V. Brown 103 Kortright v. Cady 424 Kuypers v. D. R. Church 61 L Lane v. Newdigate 293 Langdale v. Langdale 103 Lansing v. Lansing 634 V. McPherson 63 Matter of . 627, 628 Larldn v. Mann 491, 492 Lashley v. Hogg 103 Laurie v. Laurie 309 Lawe V. Hyde ' 692 Lawrence v. Bolton 363, 365 Lea V. Kelley 215 Lee V. Pindle 266 Leggett V. Dubois 331, 338 Leitoh V. Cumpston 267, 277 Leland v. Smith 538 Lentihon v. Moffat 409 Leonard v. Morris 426, 43.) Leroy v. Piatt 173 Lincoln v. E. & B. E. R. 380 Lindauer v. Cummings 466 Lindsey v. Tyrrei; 621 Livingston v. Dean 53 V. Hubbs 370 Lloyd V. Brewster 669 V. Johnes 353 Lomax v. Dore 515, 616 Long V. Burton 393, 394 Longwood V. E. B. V. Baker 292 Loomis V. Stuy ve.'sant 429 PAOS Loring v. Cooke 445 Lorton v. Seaman 636,570 Lovett V. G. E. Church 435 Lowther v. Carlton 473 Ludlow V. Lansing 204 Lynch v. Colgate 293 V. Johnson 412 V. Lynch Lyon v. TaUmadge 585 97,242 M. M. Ins. Co. V. Marvin 560 McCall V. Graham 370 McCarthy v. Carter 511 McConnel v. Smith 389 McConnell v. 'Blood 456 V. McConnell 665 McCorkle v. Brown 632 MoCredie v. Senior 539 541, 642, 551 McElwain v. Willis 404 McGtee V. McGee 601 McGowan v. Caldwell 6i9 McUown ». Yerks 361,428 Mc'^amarau "DvrjeT 327,328 McNeU V. Magee Mackey v. Bell 643 371 Mahone v. Mahone 583 Mallow V. Hinde 182 Manchester «. Dey 279 V. Matthewson 368 Many tj. Beekman 89 Marks v. Pell 470 Martin v. Martin 681 Marvin v. Ellwood 3S3 Massie v. Graham 369, 370, 374 V. Watts 186 Mason v. Armitfage 635 V. Codwise 668 V. McGirr 388 Mattocks V. Tremain 325,326 May V. May 686 Meach v. Chappell Mec. Bank u Bank of N. B. 286 141 Merrewether v. Mellish 358 Metcalfe v. Metcalfe 345 Milford V. Beasley 390 Milk V. Moore 176, 177 Millandon v. Brugiere 560 Miller «. De PeysEer 560 V. Gregory 888 V. MUler 603 Mills V. Dennis 86, 203 V. Hoag 67, 187, 449 V. MetcalE 642 V. Van Voorhies 482 Milner v. Harewood 361) Miner v. Beekman 478 Minn. Co. v. St. Paul Co. 592 Minor v. Betts 486 Mintum v, Seymour 291, 312 Mitchell « Bunch 325 V. Byms 414 Moat V. Holbein 309, 310 Mohawk & H. E. E. v. Clute 381 Monell V. Lavn-ence 268,309 Moore v. Cabell 470 Matter of 534 V. Munn 526 Morgan u Thome 618 Morris v. Morris 604 V. MuUett 668 V. Parker 78 Mosely v. Marshall 496 Munson v. Munson 526 Mushlitt ti. Silverman 608 Mussina v. Bartlett 648 INDEX TO OTHER THAN MICHIGAN CASES CITED. XXXI PAGB PAOE N. Pettit V. Shepherd 523 Phelps V. Sproule 354,356 N. A. Coal Co. ti. Dyett 361 Philips V. Derbie 351 N. A. Ins. Co. V. Handy N. I. E. R. V. M. C. E. E. 4t>3 Philbps V. Thomson 633 185 Pigg V. Corder 643 N. Y. Trust Co. v. DaTis 567 Pitman v. Thornton 479 Nanney v. Totty 348 Pitt V. Davison 538, 640 , 641, 648 Nash V. Smith 381,383 Piatt e. Squire 655 Neaffle v. Neaffle 104 Plymouth v. Bladon 111 Nelson v. Dunn 888 Portsmouth, Lord, Matter of 171 Nevll V. Johnson 173 Post V. Post - 494 Newark Co. v. Uorrlson ' 514 Powell V. Kane 28iJ Newell V. Newell 580 V. State 122 NicoU V. Trustees 683,553 Pratt V, Bacon 565 Nue V. <3ibson 883,537 Pride v. Viles 613 Noel V. King Nogees v. Nogees 304 Proctor V. Famam 641 586 Pruen v. Lunn 349 Nolan V. Urmston 374 Pugsley V. Pugsley Purcell V. Purceil 693 Noonan v. Lee 436,645 602 Norris w. Norris 604 Norrish v. Marshall 474 Q, Norton v. Warner 78,487 V. "Whiting 412 Quantock v. Bullen Quick V. liUy 684 370 0. Quincy v. Quincy 691 559 R. Odom V. Odom 584 Ogden V. Glidden 154 Radley v. Shaver 197 Ogle t). Brandling 178 Railroad Co. v, Lockwood 214 Oliver v. Palmer 85 Randall v. Mumford 355 Onderdonk v. Mott 626 Raymond v. Ewing 516, 516 Ontario Bank v. Strong 61,443 Eeed v. Wheaton 413 Oroutt V. Paige 73 Reese v. Jared 55U Osbom V. Taylor 290 Remson v.'Remson 138 V. U. S. Bank 297 Requa v. Holmes 494 Osborne v. Tenant 537 Reynolds v. Reynolds Rhodes v. Rhodes 494 Osgood V. Joslin 267, 278, 273 638 u Osgood 608 Eichards v. Cooper 428 Otiey V. Havilaad 514 V. Salter 380 Overton v. Woolfolk 483 Richardson v. Eichardson 114 Oxburg V. Fingham 344 Roberts v. Albany E. E. V, Anderson 412 313 P. V. Peavey 391 Roberts' Will, Matter of 631 Palfc V. Clinton 468, 472, 474 Robinson v. Cropsey 565 Panky v. Raum 176 V. Howes 425 Parker u Follensbee 329 J). Robinson 367 V. Parker 354 ti.'Ryan 440 r. Wells 638 V. Smith 22, (>2 Parkhurst v. C017 158 Rockwell V. Folsom 119 V. Van Cortlandt 634 Rodd V. Heartt 214 Pamell 11. Price 256 Rogers V. Dill 686 Patrick v. Warner 537 V. Ivers 460 Patterson v. Donner 454 S.Patterson 271,332,334,338, Pattison v. Hull 388, 389, 421 637, 518 s. Powers 421,435 V. Rogers 194, 563 Pawlet V. Bishop 173 V. Ross &o'.> Peabody v. Roberts 489 V. Vosburgh 110, 111 Peck V. Cook 48 L. M. -Works v. E. R. E. 892 Pendleton v. Eaton 552 Rose V. Eose 585,603 V. Fay 197, 347, 348 Eoswell V. Russell 215 Penn v. Clemans 467 Rowley v. Van Benthuysen Ru^sen v: Howard 646 II. Hayward 185 427 People V. A. & S. R. R. 317 V. Paine 176 V. Bennett 537,547 Ryan v. Dunlap 484 V. Brower 274,537 V. Church 262 s. V. Compton 538 V. Lovett 541, 544, 547 SackettD GUes 609 V. Nevins 546 Sage V. R. R. Co. 214 637,546 Sandford v. Sinclair 411 Ferine v. Dunn 109, 477, 479 Saum V. Striigley 370 Perkins v, Perkins 592 Saunders v. Frost 476 Perry v. Perry 684, 600, 605 Sav. Bank'w. Kercheval 455 V. Phelps 371,373 Sa.ylor v. Mockbie 648 Petrie v. People 601,601 Schmidt V. Potter 454 XXXU INDEX TO OTHEE THAK MICHIGAN CASES CITED. Schneider ii. Sciiultz Schwartz v. Saunders Scott . . Gumsey V. Ind. Wag. Works Sedgwick v. Cleaveland Seebor v. Hess Seymour u Delancey V. Hazard ShaeSer v. Weed Sharman v. Sharman Shaw V. Coster Sheffield v. Sheffield Shepard v. O'Neil Shepherd v. Lame V. Titley Shipbrooke v. Hinchinbrook Shuf elt V. Shuf elt Sieveking o. Behrens Siminons v. Jacobs Simpson V. Brewster Sites V. Keller Slack V. Walcott Slade V. Risg Slee V, Manhattan Co. Smedberg v. Mark Smets V. Williams Smith V. Babcook V. Bolden V. Burnham v. Fitch V. Smith V. West Snelling v. Watrous Souillard v, Dias Southwick V. Van Bussum Spencer v. Babcock Spring V. S. C. Co. Stafford v. Brown V. Hewlett Standish v. Dow Stanford v. Stanford Steere v. Miller Steifcleman v. McBride • Sterl V. Sterl Stephenson v Stephensoo. Stevenson v. Anderson ^ Steward v. Roe Stewart v. Tiimer Stitweli V. Williams Stone V. Locke Storm V. Waddell Story u. Livingston Strader v. Byrd Strickland v. Parker Striker v. Mott Strong V. Platper Studwell V. Palmer Sudder v, Voovhies Sudlow V. Knox Sullivan v. Judah Sutherland v. Bose Sutphen v. Fowler Suydam v. Bartle «. Truesdale Sweezey v, Willis Swift V. Kingsley Talmage v. Pell Tapley v. Goodsell Taylor v. Gardner V. Merrill V. Obeo V, Popham ». Taylor Thatcher ». Powell PACE 92 611 495 411 334,341 310, 811 158, H85 an, 337 BIB 581 383, 384, 886 585, 586 460 374 357 182, 264 421,435 384 123 5B6 688 353,354 488 476 324 407 559 6 413 481, 560, B90, 591, 602 114, 171 549 343 440 381 21, 274, 881 359, 360, 365 526 • 602 667 511 592 86 885 393 123 296, 381 658 412 244 370 455 484 279 267, 272, 273 WZ 546 311, 537 471 185, 555 480 90 461 243, 184, 193 564 643 90 566 548 PAOE The Monte Allegre 183 Thomas v. Harvie's Heirs 372, 373, 374 Thompson v. Dean 216 Thorndike v. Thomdike 650 Thome v. Halsey 386 Tieman v. Granger 643 Tiilotson V. Hargrave Tobey v. Co. of Bristol 203, 683 634 V. Foreman 387, 693 Tompkins v. Harrison 118 Tonkin v. Lethbridge 362 Toulmin v. Eeid 383,381 Toume v. Toume 585 Tradesman's Bk. v. Hyatt 78 Trappes v. Harter 456 Travis v. Waters 652, 663 Tremole Patent 100 Tripping v. Power 658 Troughtbn v. Buikes 472 Turner v. Dorgan 548 Tyler V, Simmons 140, 244, 273 u. U. Ins. C. V. Van Rensselaer 435, 560 U. S. V. Fossatt 215 Underbill v. Jackson 494 Union Bank v. Kerr 383 Utica Ins. Co. v. I^ynch 78 V. Van Cleefi). Sickles 407,409 Van Court v. Bushnell 614 Van Epps v. Van Deusan 173 Van Kamp v. Bell 265 Van Ness v. Cantine 670 Van Valtenburg v, Alberiy asz Vandenburgh v. Van Rensselaer 275 Vanderbilt, Matter of 541 Vaughn v. FitzGerald 400 Vermillyea v. Odell '""''^ Verplanck v. Mer. Ins. Co. Vieary v. Widger 384 Vigers v. Lord Audley 366, 363, 866 Voorhees v. De Meyer 633 V. McGinnis 456 Vroom V. Ditmas 192, 476, 566 Vyse 71. Wakefield 436 w. W. Ins. Co. V. Slee 333 Waffie V. Vanderheyden 313 Wakeman v. Grover 409 Walbranke v. Sparks Waldeu v. Gridfey 384 183 Walker v. Armstrong 99 «. Hgo 1 513 V. Preswlck 183 V. Russell 565 V. Shepardson 307 Wallingsford v. WalUngsford 609 Ward V, Morrison 426 Waring v. Waiing 490 Watkyns v. Watkyns 606 Watson V. Jones 306 Matter of 541 V. Beissig 280 Watts V. Lawrence 65 Webbi; Pell 370, 372, 376 V. Port. M. Co. 307 Weed V. Pierce 408 Weems v. Birewer 155 Weismani). Smith 388 Wendell u. Lewis 566. 666. 669 West Va. O. & 0. L. Co. v. Vinal ' ' 693 INDEX TO OTHEB TilAK MICHIGAK CAtiBS (JIXED. XXXlll Westcott V. Cady Wetherell v Collins "Wheeler v. Pipex' Whelan v. Sullivan Whispell V. Whispell Whitaker. Blatter of White V. Buloid V. Greathead Whiting V. U. S. Bank V. White Whitlock, Matter of Whitmarsh v. Campbell Whitney v. Belden V Robbins Wilbur V. ColUer Wilcox V. Balger Wilford V. Beaseley Wilkes V. Rogers Wilkin V. Nainby V. Wilkin Wilkinson u Henshaw V. Parish 334, Willan V. Willan Willard v. Taylor V. Willard PAGE PAGE 358 Williams v. Gibbs 90 476 V. Hogeboom V. Walker 413 74 383 100 Williamson v. Champlin 421 685 Willsontj. Henderson 271 627 "Wilson, Matter of 627 .W, 390, 392, 394 V. Metcalfe 256 56 Winkler v. Winkier 60 281 Wiser v. Blachley 197, 373 369, 370 Withers v. Morrell 463 470 Wood, Matter of 626 626 V. Keyes 184, 192, 427 96 V. Wood 177, 618, 592, 608, 624 289. 270,372 Woods V. Morrell 95 404 Woodward v. Twinaine 650 413 Woodworth V. Campbell Wooster v. Woodhull 482 479 200 395 Wright V. Castle 103 139 'v. Wright 601,602 549 471 553 Y. 336,338 353,482 370 Young V. Cooper 495 640 V. Smith 216 265 V. Young 578 .A. rmE!A.TISlE3 Chancery Pleadings and Practice. CHAPTEE I. INTEODUCTOEY CHAPTEE. Every book of practice necessarily involves a discussion of the principles of pleading. The subject naturally divides itself into two great heads, the Pleadings in framing a suit in equity, and the Practice in conducting a suit in equity. By the Pleadings we are to understand the written allegations of the respective parties in the suit, that is to say, the written statement of the plaintiff containing in due legal form, the facts of the case on which he grounds his title to relief, or to some equitable interposition or aid from the court ; and the written answer or defense of the defendant to the charges of the complainant, either denying them altogether, or admitting them and relying on some other matters as a bar to the suit, or admitting them and insisting upon the want of title in the complainant to the relief sought, or to the interposition or aid of the court ; and the written reply thereto by the complainant. By the Practice in a suit in equity, we are to understand all the various proceedings in the suit, whether by the positive 2 LNTEODUCTOEY OHAPTEE. rules or the usage of the court, and whether interlocutory or otherwise, which may become necessary or proper for the due conduct thereof from the beginning to the final determination thereof.! Although in a general sense the distinction between the pleadings and the practice in a suit is obvious, yet it is dif- ficult wholly to separate the considerations respectively be- longing to them. In the following pages, therefore, matters of Pleading when connected with matters of Practice, will be occasionally introduced whenever necessary to better explain the particular topic under consideration. 1 Story's Eq. PI., J 4. CHAPTEEII. HISTORY OF THE OOUKT OF CHANCEEY IN MICHIGAIT. TTie Hon. Henry N. "Walker, in his preface to Harrington's Chancery Eeports, has presented such a lucid and interesting history of the legislation on the subject that I avail myself of a portion of it, as follows : " Prior to the year 1836, there was no court of equity dis- tinct and separate from the courts of law. The Ordinance of Congress of 1787, for the government of the territory north- west of the river Ohio, did iiot establish a distinct and separ- ate tribunal for the exercise of powers usually conferred upon courts of chancery. Neither did it vest in the courts of law any authority to exercise such powers. The provision relative to the legislative power authorized the Governor and Judges to adopt such laws of the original States as might be necessary and best suited to the circumstances of the district, which were to be in force unless disapproved of by Congress. Among the earliest Acts of the territorial government of Michigan, was one relative to the jurisdiction of the courts, which was passed July, 1805, and declared that the Supreme Court should have original and exclusive jurisdiction in all cases, both in law and equity, where the title of lands was in question, but no suit in equity should be sustained in any case when adequate remedy could be had at law. The same statute provided that ' on trial of cases in equity, oral testimony and the exainination of wit- nesses in open court should be admitted.' In 1820 the Gover- nor and Judges who were still vested with the legislative power, passed an act directing the mode of proceeding in suits in chancery. By this law the county courts of the several coun- 3 i COURT OF CHANCEEY IN MICHIGAN. ties were invested with jurisdiction in all cases properly cog- nizable in a court of chancery, in wMch plain, adequate and complete remedy could not be had at law, where the title to land was not in question, and when the sum or matter in dis- pute did not exceed the sum of one thousand dollars ; and the Supreme Court had jurisdiction in all cases where the title of lands was in question, and where the sum or matter in dispute exceeded the sum of one thousand dollars. The Supreme Court had also appellate jurisdiction in all cases heard and determined in the county courts. "In 1823, some doubts having arisen as to the powers of the courts. Congress passed an act declaring that ' the powers and duties of the judges of the said territory should be regu- lated by such laws as are or may be in force therein, and the said judges shall possess a chancery as well as common law jurisdiction.' " In 1827, the laws of the territory were revised, and the cir- cuit courts, which had been organized, obtained concurrent equity jurisdiction with the Supreme Court, subject, however, to an appeal thereto, and were invested with the exclusive power of deciding appeals from the county courts. It was pro- vided by the law of 1827, that proceedings in chancery, ' when they are not regulated by the statutes of this territory, shall be regulated by the judges thereof, conforming to the rules and proceedings established by courts of chancery in England, so far as the same shall be consistent with the laws and constitu- tion of the United States and the laws of the Territory of Michigan.' In 1833 the laws were again revised, but no mate- rial alteration was made relative to the mode of proceeding in suits in equity. " By the constitution of the State, adopted in 1835, the judi- cial power was vested in one Supreme Court and in such other courts as the legislature might from time to time establish. At the first session of the State legislature an independent court of chancery was created, which was invested with all the equity powers previously conferred upon the several territo- COURT OP CHANCEEY IN MICHIGAN. 5 rial courts.' The ofi&ce of Chancellor was filled by the Hon. Blon Parnsworth and the Hon. Eandolph Manning respect- ively until the court was abolished." The reader is also referred to the preface to the second edition of Walker's Chancery Eeports, by Mr. Justice Gamih beU, of the Supreme Court of Michigan, and which contains a valuable and interesting summary of important changes mad Shoemaker v. Gardner, 19 Mich. 96; Comstock v. Comstock, supra. See King V. Moore, 10 Mich. 538; Holman v. Gillette, 24 Id. 414; Amphlett v. Hibbard. 29 Id. 298 ; People v. Rodiger, 40 Id. 745. 24 BILLS IN CHANCERY. A husband cannot sue Ms wife at law or in equity to enforce a purely executory contract.®^ Encroachment upon Highways; Suits in Corporate Name. — In all cases of encroachments upon the public highways, streets and public alleys in organized townships, incorporated villages and cities in this State, suits may be instituted in chancery in the corporate name of such townships, villages and cities.(a) Non-joinder or Mis-joindo: — When the defect appears upon the face of the bill, the defendant may demur, otherwise he may take the objection by plea, insist u|)on it in his answer, raise the objection at the hearing, or the court may state it. ■ It is not safe, however, in any case to rely upon the objection at the hearing, for if the court can make a decree which will do entire justice to all parties, notwithstanding the non-joinder or mis-joinder, the objection will not prevail. The successful party, therefore, often suffers the evils of inadequate litigation by leaving his title still open to future controversy.^^ ^ 1 For a general discussion of the power of a married woman to contract, see Jenne v. Marble, 37 Mich. 319. Also Tillman v. Shackelton, 15 Mich., 447, annotated edition, where all the cases are cited. Cestui que trusts : Cook v. Wheeler, Harr. Ch. 443 ; Sill v. Ketchum, Id. 423 ; Martin v. McReynolds, 6 Mich. 70; Abbott v. Gregory, 39 Id. 68. In the following cases parties held unnecessary : Chipman v. Thompson, Walk, Ch. 405 ; Titiis v. Min. Mining Co.. 8 Mich. 183 ; Woodward v. Clai'k, 15 Id. 104; Wescott v. M. Mining Co., 23 Id. 145; Howell v. Merrill, 30 Id. 283; Robinson v. Baugh, 31 Id. 290 ; BelJair v. Wool, 35 Id. 440 ; People v. Curtis, 41 Id. 723. Held necessary : Suydam v, Dequindre, Harr. Ch. 347 ; Wheeler v. Clinton Co. Bank, Id. 449; Norris v. Hurd.Walk. Ch. 102; Barstow v. Smith, lb. 394; Taylor v. Snyder, lb. 490; F. & M. Bank v. Detroit, 12 Mich. 446; Hammon- tree v. Lott, 40 Id. 190; Crooks v. Whitford, lb 599. Specific performance : House v. Dexter, 9 Mich. 246 ; Daily v. Litchfield, 10 Mich. 29 ; Morris v. Hoyt, 11 Id. 9 ; Woodward v. Clark, 15 Id. 104 ; Brewer V. Dodge, 28 Id. 359 ; Sticking v. Parmenter, 35 Id. 237. (a) Lawsofl881, p. 255, ?21. 52 Story's Eq. PI. ?§ 75, 237, 238; Calvert on Parties, pp. 113-116; Mitf. Eq. PI. 180 r 1 Dan. Ch, Pr. Chap. 5 ; Cooper Eq. PI. 33. Separate individual frauds cannot sustain joint litigation. Woodruff v. Young, 43 Mich. As to parties in U. S. Court, see Eq. Rules 21, 22, 23, 47 to .'i4 incl. BILLS IN CHANCERY. 25 An objection for misjoinder should be taken in the trial court, and not raised for the first time on appeal. In a suit to reach the funds of an estate, it is not a fatal misjoinder that complainant sues as assignee of one party in interest, and as guardian of another, (a) Interest of the Parties. — The complainant's bill must not only ' show that he has an interest in the suit, but that the defendant has an interest, and is liable to answer him.^* All persons materially interested in the subject matter should generally either as complainants or defendants, be made parties to the suit.^* The averment of the complainant's rights by whom, and in what manner he is injured, or in what respect he seeks the aid of the court, the prayer for relief, and the issuing of process to bring in the defendant, constitute the substance and essence of every bill. The interest must be an actual existing interest, and not a mere possible one. The complainant must also allege in his bill that he has done, or offered to do, or is ready to do, everything necessary to entitle him to the relief he seeks, or sufficient excuse for its non-performance. The same precision is not required in setting out the defend- ant's interest, as in that of the complainant. ' ^ Courts of Equity discourage a multiplicity of suits, and therefore will not permit a bill to be brought for a part of a matter only, where the whole is the proper subject of one suit; nor for one of two claims upon the same defendant ;5 8 still, a complainant may, if he chooses, make distinct controversies of the same matter the subjects of separate suits.'' (a) Henderson v. Sherman, 47 Mich., (Jan'y Term, 1882.) " Story's Eq. PI. g 262. " 1 Dan. Ch. Pr. p. 190. " 1 Barb. Ch. Pr. 40; Oliverv. Palmer, 11 Gill & John. 426. " Story's Eq.Pl. § 287; 1 Barb. Ch. Pr. 40; Mitf. Eq PI. 183; Cooper Eq. PI. 184-5. '■ ' Darker v. Cle eland, 1 9 Mich. 23ri, 238 ; Bonker v. Charlesworth, 33 Id. 81. 4 26 BILLS IN CHANCEET. MuUifariousness. — By multifariousness in a bill is meant the improper joinder in one bill of distinct and independent mat- ters, and thereby confounding them, as for example the unit- ing of several matters of a distinct and independent nature against several defendants. But different parties claiming under one general right may unite in the same bill, although their respective titles are distinct. A common illustration is, where several tax-payers, owning distinct parcels of land, unite in filing a bill to enjoin the col- lection of an illegal tax levied upon their respective premises. As to what constitutes multifariousness no general rule can be laid doVn. Every case must be governed by its own circumstances, and the court must exercise a sound discretion ; still it may be said generally that there must be a common interest, a common gribund of relief and a common ground of invalidity.^* in determining the question of multifariousness the stating part of the bill should be looked to, rather than the prayer. A plea must rest the defense upon a single point, or it will be multifarious.^* The objection should be raised by demurrer that the court may pass upon it before the expense of a reference and testi- mony is incurred. Courts do not favor the defense, and will not be technical to defeat equities, where a joinder can do no harm.^" «' Story's Eq. PI., ?? 271,279; Cooper Eq. PI., 182; IngersoU v. Kirby. Walk. Ch., 65 (see Judge Campbell's note) ; Hart v, McKeen, lb.. 417 ; Whee- ler V. Clinton Bank, Harr. Ch., 449 ; Hammond v. Mich. St. Bank, Walk. Ch., 214 ; Wales v. Newbould, 9 Mich., 45 ; Kerr v. Lansing, 17 Id., 34 ; Scofield v. Lansing, lb., 437; Payne v. Webster, 8 Mich., 263; Huntonv. Piatt, 11 Id., 264; Cummings v. Freer, 26 Id., 129; Robinson v. Baugh, 31 Id., 290; Taylor v. King, 32 Id, 42; Youngblood v. Sexton, lb., 407; Bristol v. Johnson, 34 Id., 123; Wilkinson v. Green, lb., 221; Hammontree v. Lott, 40 Id., 191; Wood- ruff v. Young, 43 Id., 548; People v. De Mill, 15 Id., 165; Gage v. Chapman, 56 111. ,311; Miller v. Grandy, 13 Id. 540 ; Bruner v, Bay City (June Term, 1881) , 46 Id. " Hammond v. Mich. St. Bank, Walk. Ch., 214. «» Wales V. Newbould, 9 Mich., 81, 82; Reed v. Wessel, 7 Id., 139; Payne T. Avery, 21 Id., 524, 538. BILLS IN CHANOEET. 27 Where defendant reserves the privilege of making the objection at the hearing, it will rest with the court, and not the party, to take advantage of the objection.* ^ Scandal and Impertinence. — Scandalous or impertinent mat- ter in a bill should be avoided, as it may be excepted to by the defendant, and if found to be so on reference, the court will order such parts to be expunged with costs. Scandal consists in the allegation of anything which is unbecoming the dignity of the court to hear, or is contrary to good manners, or which bears with unnecessary cruelty upon the moral character of an individual. Still if the words used are material to the issue, they will not be so considered. Impertinence in equity pleadings is equivalent to surplussage in common law pleadings.*^ Betting out Deeds and Documents. — The documentary evidence referred to in Chancery Eule 56 has reference to documents which prove themselves. The rule in regard to proving documents at the hearing has been modified so as to admit the production of such documents as would need no proof which are referred to in the bill, and not denied by the answer. The statutes allowing cases to be heard on proofs taken in open court have very much modified the old rules of practice as to taking 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 by the answer needs no formal proof.** •' Wales V. Newbould, supra; Payne v. Avery, supra. " 1 Dan. Ch. Pr., 347 ; Coop. Eq. PI., 19 ; Story's Eq. PI., i 266. See U. S. Eq. Rules 26, 27. •' Bachelor v. Nelson, Walk. Ch., 449 and note ; Jerome v. Seymour, Harr. Ch., 255; and see Swetland v. Swetland, 3 Mich., 482; and Stone v. Welling, 14 Mich., 513. '* Mickle V. Maxfield, 42 Mich., 304. 28 BILLS IN CHANCERY. SECTION IV. DEAWING, SIGNING, ETO. Brawinff, Bigning and Swearing. — A complainant usually appears by a solicitor, who prepares the bill and conducts the suit ; still he may appear in person, In which case it must be signed by him. (o) Except in cases where an injunction is asked for, or an answer on oath is required, bills are usually signed by the solicitor.* * The signature of counsel, in addi- tion to a solicitor, while desirable, is not necessary, the distinc- tion in this State being obsolete. Unless a bill is actually signed it will be stricken from the files ; a printed signature is not good.* * "Where a petition was not signed but was verified by an affi- davit signed by the petitioner, it was held to be a sufficient signing.*'' In a suit by a corporation, the bill, if not a sworn one, is signed by the solicitor of the corporation, otherwise it should be sworn to by the officer making the oath.** Swearing to BUI.— In the absence of any statute or rule requiring it, bUls in .equity need not be verified except where preliminary relief is sought, or in cases where it is desired to transfer into equity matters usually cognizable at law. 'This is the case, although the answer on oath is not waived.* ^ An (o) 1 Hoff. Ch. Pr. 97. «» 1 Barb. Ch. Pr., 43, 44; 1 ,HofF. Ch. Pr., 97. «« Henry v. Gregory, 29 Mich., 68 ; Eveland v. Stephson, 45 Id. 394. «' John-ion v. Johnson, Walk. Ch., 309. «8 1 Barb. Ch. Pr., 44. «9 ] Dan. Ch. Pr., 395; Moore v. Cheeseman, 23 Mich., 332; Atwaterv. Kinman, Harr. Ch., 243. BILLS IN CHANCEEY. 29 injunction bill need not be sworn to wiiere the injunction is sought zstftrwl relief, and where no prdinunary aid is desired.' " The oath administered to the party must be in substance that he has read the bill, or has heard it read, and knows the contents thereof, and that the same is true of his own knowl- edge, except as to the matters which are therein stated to be on his information and belief, and that as to those matters he believes it to be true, and its substance must be stated in the jurat." ^ Bills which are to be verified by the oath of an agent, or attorney for a complainant, should be drawn in the same man- ner as bills which are to be sworn to by the complainant him- self, stating those matters which are within the personal knowledge of such agent or attorney positively. But those which he has derived from the information of others should be stated upon the information and belief of complainant, and the oath of such agent should be in addition to the foregoing, except as to the matters stated to be on the information and belief of the complainant.' ' When the verification is by an agent who is not also a soli- citor the jurat must describe him.' * SECTION V. NTTMBEEING AUD MAEKHfO FOLIOS. Numbering and MarMng Folios. — Though not required by any rule, the convenience of the practice, in case of reference or amendment, is suf&cient to recommend it in the absence of ■"> Robinson v. Baugh, 31 Mich., 290; Glidden v. Norvell, 44 Id., 202. See U. S. Equity Rule 59, and U. S. Circt. Ct., Rule 3, as to who may administer oaths; also U. S. Rev. Stdt., ? 1778, In the U. S. Circuit Court the signature of counsfeltba bill is necessaty. Eq., Rule 24. Endorsement was held sufficient in Dwight v. Humphreys, 3 McLean, 104. '1 Ch. Rules?, 8. " 1 Barb. Ch. Pr. 44; Bank of Orleans v. Skinner, 9 Paige 306. »» Berg v.Poupard; Walk. Ch. 5. 30 BILLS IN CHANCEET. any rule. All pleadings and proceedings must be fairly and legibly written, otherwise the Eegister is forbidden to file them.'* Jn the entitling and endorsement of papers by either party, the complainant's name must be placed first. '^ Filing. — No process can issue until the filing of the bill. A suit is not pending until the bill is filed. '^ Under a recent rule a new form of subpoena has been prescribed by the Supreme Court intended to notify the defendant of the purpose of the suit." SECTION VI. Wh^n Bin, to be Accompanied by Affidavit. — In bills of partic- ular descriptions it is necessary that an affidavit should be annexed to them. The reason being that they have a tendency to create delay, and retard the trial. The following are instances, viz ; Bills of interpleader, Bills to examine witnesses de bene esse, Bills to obtain the benefit of a lost instrument on which an action at law would lie, Bills to perpetuate testimony.'* In any of these instances the want of the requisite affidavit makes the bill demurrable. The affidavit should be positive as to the material facts. »4 2 Comp. L. 1871, |5683; Ch. Rule 67; Const. Art. xviii g6. U. S. Supreme Court Rule 26 requires all pjeadings, exceeding two folios, to be numbered, though it may be waived. " Ch. Rule 67. ■" 46 Mich. ' " Ch. Rule 122. '« 1 Barb. Ch. Pr. 47 ; 1 Dan. Ch. Pr. 392; Story's Eq. PI. ?? 288, 304, 309, 412 and 477 ; Coijper Eq. PI. 57, 61, 92. 208 ; Mitf. Eq. PI. 52, 54, 84, 124, 125. BIIXS IN CHANCEEY, 31 Where the whole equity of the bill is denied by the sworn answer of the defendant, and no affidavit of a disinterested witness is annexed to the bill, the injunction will be dissolved on bill and answer. Upon an application for a ne exeat also an affidavit is necessary as a foundation for obtaining it.^ ' " Mitf. Eq. PI. 49; 1 Hoff. Ch. Pr. 96. CHAPTEE V. PROCESS FOK APPEAEANCE. Section 1. Subpcena. 2. Attachment. 3. Process Against Corporations. SECTION I. SUBPCENA TO APPBAE. The bill having been filed, the complainant's solicitor will obtain from the Eegister a subpoena, which is a writ directed to the defendant to appear on a certain day and answer the bill.^ Under a recent rule it must contain a notice of the filing of the bill and of the time when appearance may be entered, and also designating the defendants against whom a personal decree is asked. ^ It must contain the names of all the defendants, be tested in the name of the court from which it issues, and made returna- ble on a day certain, except Sunday,^ either in vacation or in term, not less than ten days from the issuing thereof. Should the process not be executed before the return day, new process may be taken out as often as may be necessary. It must also be sealed with the seal of the court, signed by the Eegister or deputy, and endorsed with the name of the solicitor.* 1 2 Comp. L. 1871, ? 5076. " Ch. Rule, 122. a Peck V. Cavell, 16 Mich. 9. * 2 Comp. L. 1871, 2 5077. S2 PROCESS FOE APPEAEANCE. 33 Service of. — It may be served on or before the return day by delivering a copy thereof to the defendant, enrlorsed by the solicitor, inscribed " copy," and by Ehovv'ing the original under the seal of the court. ^ It may be served in any part of the State ; but when it is to be served in a county other than that from where it issued, it must be directed to the sheriff of said county.* Service out of the State is irregular ; but appear- ance waives irregularities.'' It is not necessary that an officer should make the service ; but if made by an individual, he must file his affidavit of service.* Where copy served varied from original, it was held irregular.* Where the return day falls on Sunday or a holiday, it wiU stand continued to the day following, (a) When a defendant is brought in by publication based upon a sufficient affidavit, there is no necessity of issuing a subpoena, and a premature return of the same if issued, is unimportant.^ ° It is irregular to serve an injunction without the subpoena.* 1 After the lapse of nearly a year from entry of a decree, after entry of an order pro confesso on personal service, mere formal defects in the signing and service of subpoena will be dis- regarded. ' 2 Married Women. — ^Under the statutes of Michigan permit- ting a married woman to sue and be sued in matters relating to ' Ch. Rules 9 and 10; Johnson v. Shepard, 35 Mich. 115; Torrans v. Hicks, 32 Id. 308. « 2 Comp. L. 1871, ? 5076, 5077. ' Stone V. Welling, 14 Mich. 514. 8 1 Barb. Ch. Pr. 53; Soule v. Hough, 45 Mich. 518; See Ch. Rule 10. In the U. S. Courts process must be served by the marshal or some person specially appointed by the court. [Eq. Rule 15.] As to service of process in U. S. Courts, see Rules 1 1 to 16 incl. » Gould V. Tryon, Walk. Ch. 339; 1 Edwd. Ch. R. 631. (a) Laws of 1881, p. 252. i» Torrans v. Hicks, 32 Mich. 308; Pettiford v. Zoellner, 45 Id. 358. >> Sullings V. Goodyear D. V. Co., 36 Mich. 314. ' • Creveling v. Moore, 39 Mich. 563. 34 PEOCESS FOE APPEAEAJifCB, her sole property as though she were uninarried, process must be served upon her personally as if she were a feme sdle.^^ On a Prisoner. — Subpoena may be personally, served upon a defendant imprisoned in State Prison or upon the keeper, i* On Infants. — If an infant is made a defendant the subpoena must be personally served, but it is recommended that notice be given to his parent or guardian of the necessity of appear- ance by guardian. If he is a non-resident, the complainant must proceed by publication under the statute. * * On Lunatics. — The subpoena against a lunatic must be served personally. 1 ^ Under the statute, the terms, insane, non compos, and lunatic are construed to be the same.'^ Won-Besidents. — Where a defendant is a non-resident no subpoena need be issued, but he may be brought in by publica- tion, i* On a Corporation. — ^Process is usually served on the Presi- dent, Cashier, Secretary or other principal officer of the corpo- ration, unless modified by statute. * ' Ancient Chancery Practice. — ^As a corporation can neither be attached or apprehended, the old practice after return of subpoena and proof of service was to compel an appearance by a seizure of its property by writ of distringas directed to the sheriff, and in case of continued disobedience, by sequestra- tion.2o »« 2 Comp. L. 1871, H805. 1* Johnson v. Johnson, Walk. Ch., 309. " 1 Barb. Ch. Pr., 51 ; 2 Comp. L. 1871, ? 4821. " lb., 52. " 1 Comp. L. 1871, p. 92. ' ' Torrans v. Hicks, supra. As to the necessary diligence required in service of process on absentee defendants, see Soule v. Hough, 45 Mich, 418; Merrill v. Montgomery, 25 Id. 73; Burton v. Maloon, Bamardestin, 401 ; Everts v. Becker, 8 Paige, 506. 19 1 Barb. Ch. Pr., 52 ; 1 Dan. Ch. Pr., 445 ; Story's Eq. PI., g 44. <"> 1 Dan. Ch. Pr., 477, 498; 1 Barb. Ch. Pr., 75; 1 HoflF. Ch. Pr., 164; Ang. and Ames on Corp., J 667. PEOCESS FOE APPEAEANCB. 35 ' Under our system the old practice is not recognized, and corporations may sue and be sued in the same manner as nat- ural persons.^* A corporation created by and located in the State of Michi- gan, except when the suit is local, or when there are several defendants, can be sued only in the county where it was located, unless service of process is made on some of the offi- cers indicated by law as the proper persons to represent it for that purpose. There can be no substituted service for want of finding such officers, except in the home county. ^^ In case of railroad companies process may be served on any conductor of freight or passenger trains or weigh masters at any station or depot along the line, or at the end of the line.^s The place fixed by law as the business residence of a cor- poration is an essential part of its corporate character ; and no transfer of it can be made without legal permission, although it may do business by agents elsewhere. 2* A court of chancery has no jurisdiction, under its general equity powers, to regulate or manage or wind up the affairs of corporations, except in proceedings under the statute. ^^ Foreign Corporations. — The officers of a foreign corporation do not carry with them, beyond the corporate residence, their " Ch. Rule 11; 2 Comp. L., 1871, Chap. 206-207, § 6463; Story's Eq. H. I 44, note 2. «8 People V. Saginaw Circuit, 23 Mich., 492; Dewey v Cent. Car Co., 42 Id., 399. As to Mining Companies, see L. of 1878, p. 96, \ 37. As to Manu- facturing Companies, L. of 1875, p. 220, § 3' . As to Agents of Foreign Insurance Companies, 2 Comp. L. 1871, \ 1683; also of Domestic Ins. Cos., Laws of 1881, p. 213, 209. For exceptional methods of service, see corporations under different titles in Compiled Laws. " 2 Comp. L., 1871, 2 6559. ■ 2* People V. Oakland Co. Bank, 1 Doug., 282; Underwood v. Wald- ron, 12 Mich., 73; People v. Auditor Genl. 17 Mich. 161; D. F. & M. Ins. Co. V. Saginaw Circt. Judge, 23 Id. 492. *^ As to equity proceedings see Chapters 206, 207, Comp. L. 1871 ; Atty. Gen. V. Bank of Mich., Harr. Ch., 315 ; Pt. Huron and G. T. R. R. v. Circuit Judge, 31 Mich., 456 ; Atty. Gen. v. Bank of Oakland Co., Walk. Ch., 90; Cook V. D. & M. R. R., 45 Mich. 458, 36 PEOCESS FOE APPEAEANCB. representative character so as to make service on them binding on the corporation. Except in cases where special provision has been otherwise made (if such cases exist) the remedy to enforce the appearance of such corporation must be sought by proceedings against them by publication as absentees on the same footing as other absent defendants.^® Extraordinary or Substituted Service. — ^When a subpoena can- not be served in the ordinary method, substituted service may be resorted to. In general when this becomes necessary the safest course is for the complainant to apply in the first instance to the court by motion, supported by affidavit stating the circumstances.^' Where jurisdiction is sought to be obtained by substituted in lieu of actual service the statutory provisions must be strictly complied with or the proceedings cannot be sus- tained. 2 » Lis Pendens. — Where the bill to be filed affects the title to real estate, to render it constructive notice to a purchaser, the complainant must file in the office of register- of deeds of the county in which the land is situated, a notice of the pendency of such suit, setting forth the title of the cause, the general object thereof, and a description of the lands to be affected thereby. 2 9 2 6 Newell V. G. W. R. R., 19 Mich., 336; Watson v. Wayne Cir. Judge, 24 Id., 88 ; Merrill v. Montgomery, 25 Id., 73 ; Hartford Ins. Co. v. Owen, 30 Id., 441 ; Hebel v. Amazon Ins. Co., 33 Id., 400; General or Special Agent defined, Lalie Shore & Mich. S. R. R. v. Hunt, 39 Mich,, 469; Am. Exp. Co. v. Conant. 45 Mich. 643; See Simpson v. M. C. & Lake Mich. R. R. 88 Mich. 626. Also see Laws of 1881, p. 348. " 1 Barb. Ch. Pr,, 52; 1 Dan. Ch. Pr., 445; 1 Barb. Ch Pr., 52-53; 1 Dan. Ch. Pr., 4th Am. Ed. 446-7-8 (full discussion.) 2 8 Merrill v. Montgomery, 25 Mich., 73 ; D. F. and M. Ins. Co. v. Circuit Judge, 23 Id., 492 ; Piatt, v. Stewart, 10 Mich., 260. «» 2 Comp. L. 1871, I 5065, as amended by the laws of 1873, p. 217; Drew V. Dequindre, 2 Doug. 93; Baker v. Pierson, 5 Mich, 456. ■ PEOOESS FOE APPEAEAJifCE. 37 SECTION II. ATTACHMENT. Where a defendant has been personally served with sub- poena, and he fails to appear, plead, answer or demur, within the time limited for the same, the complainant may, upon filing an affidavit that a discovery as to the matter charged in the bill is necessary, and service thereof with notice, move the court for an attachment against such defendant.^" If he appear personally, or is brought into court by the sheriff, he must enter his appearance, put in his answer and pay costs of contempt, or be committed.*^ Since the passage of the Act allowing parties to become gen- eral witnesses, [2 Gomp. Laws, 1871, § 5967, amended by Laws, 1881, p. 335,] and the rule authorizing defendant's appearance to be entered on default made, [Bide 11, 2 Comp. L. 1871, § 5079,] the process for effecting a compulsory appearance has fallen into disuse. I therefore omit allusion to the ancient practice of Attachment with Proclamation, Commission of Eebellion, and the duties of Sergeant at Arms, etc.^ ^ As this writ is used to enforce various orders and decrees, it 'ill be specially noticed hereafter. SECTION III. PEOCESS AGAINST COEPOEATIONS. Under Chancery Bules 10 and 12, process is authorized to be served upon the proper officers of corporations, and their appearance entered as in other cases, thus dispensing with the necessity of the old practice of distringas and sequestration. 80 Ch. Rule 12. 81 Ch. Rule 13; 1 Barb. Ch. Pr. 54. »8 Riopelle v. Doellner, 26 Mich. 102; 1 Barb. Ch. Pr. 62 to 68. CHAPTEE VI. APPEAEANCE. Section 1. Of Appearance in General. 2. Voluntary Appearance. 3. CoMPUL'soRY Appearance. 4. Appearance Gratis. 5. Appearance by Married Women. 6. Appearance by Infants. 7. Appearance by Persons of Unsound Mind. 8. Appearance by Corporations. SECTION I. OF APPEARANCE EST GENERAL. Nature of. — ^Appearance is the formal proceeding by which the defendant submits himself to the jurisdiction of the court. Appearances are either voluntary or compulsory. Volun- tary, when the defendant comes in upon the return of the sub- poena. Compvlsory, when the appearance is the consequence of a contempt. A defendant may appear gratis as when he does so before he has been served with a subpoena. ^ What amounts to. — Piling a plea or answer, appearing by counsel at the hearing and consenting to be bound by the decree, or making a motion in the cause will constitute a gen- eral appearance.^ 1 1 Barb. Ch. Pr. 77, notes 1, 2, 3; 1 Dan. Ch. Pr. 536. s Stone V. Welling, 14 Mich. 514 ; Griggs v. D. & M. R. R. Co., 10 Id. 117; E. Sag. & C. R. R. V. Benham, 28 Id. 459. 38 APPEAEANCE. 39 A general appearance not only gives jurisdiction over the person, but cures defects in previous process or its service.* TMs rule applies only to irregularities, and not to a nullity. The latter cannot be waived.* A party may, however, enter a special appearance for the sole purpose of making a special motion in the cause, without waiving his rights, but the pur- pose should be expressly stated.^ An appearance for the exclusive purpose of demurring to the jurisdiction does not admit it if the substantial matter of the bill is improper for the cognizance of the court. ^ Where there is no appearance after personal service of sub- poena, a party defendant will not be entitled to the service of notice of subsequent proceedings.'' But where he has so appeared he will be entitled to such notice even after plea withdrawn.* An exception to the rule is where a suit is brought to a hear- ing, and interlocutory decree is made in complainant's favor and the Court orders a reference to compute the amount on a basis fixed by the interlocutory decree, and no inquiry into facts is to be had on the reference, the defendant is not enti- tled to notice of filing and confirmation of the report, or of hearing thereon, (a) « Parker v. Williams, 4 Paige 439 ; 1 Barb. Ch. Pr. 78 and notes. Mt as to infants : Smith v. Smith, 13 Mich. 258 ; Burson v. Huntington, 21 Id. 415; Blair V. Corapton, 33 Id. 414 ; Stone v. Welling, supra. * Jenness v. Judge Lapeer Co., 42 Mich. 469 ; Woodruff v. Ives, 34 Id. 320. Ch. Rule 11. » Ch. Rule 12. » 1 Barb Ch. Pr.,88; 2 lb., 89. * 2 Comp. L. 1871, ? 6564, as amended by the laws by the laws of 1879, p. 195. See U. S. Eq. Rule 18, 46 CHAPTEE VIII. TAKING BILLS AS CONFESSED. Section 1. Nature of the Proceeding. 2. For Want of an Appearance. 3. For Want of an Answer. SECTION I. NATUEB OF THE PROCEEDING. Upon the return of the subpoena duly served, if the defend- ant fails to plead, answer, or demur within the time prescribed by rule, his appearance may be entered by the register, and the bill of complaint taken as confessed; that is to say, it is an admission by the defendant of every material fact properly alleged in the bill, but no more.^ A decree jpro confesso is confined to the precise limits of the case made by the bill.^ 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.* On filing an amended bill in equity adding a new and material averment in a case where the defendant has failed to 1 Ch. Rule 11 ; Ward v. Jewett, Walk. CI. 19, 45. » Hardwick v. Bassett, 25 Mich. 149 ; McCabe v. Famsworth, 27 Id. 52 ; Damouth v. Klock, 29 Id. 289 ; Brown v. Thompson, lb. 72; Griswold v. Fuller, 33 Id. 271. f • ' > " Gibson v. Reese, 50 111. 383. For the practice in U. S. Courts, see Eq. Rules 18, 19. 46 TAKING BILLS AS CONTESSED. 47 appear, it is irregular to take an order pro confesso, on the same day and without serving new process.* The defense of one who answers, if sustained, inures to the benefit of those defendants who have permitted the bill to be taken as confessed against them.^ The entry of an order j>ro confesso before filing proof of ser- vice of subpoena is irregular. Good practice requires an afftr- mative showing of the non-appearance of the defendant as a preliminary to an order pro confesso ;* but where such proof is supplied before the entry of the decree, it will be sufiicient.'' It is irregular for complainant under an order pro confesso to take proof to sustain the bill ; and no costs can be charged to defendant.* Ho decree will be entered against an infant on a bill taken against him as confessed, or on the answer of his guardian ad litem, admitting the facts. The answer in such case is regarded as a mere pleading. The case against him must be made out fully by proofs. No one can give away or lose his rights.' Bills may be taken as confessed for want of an appearance or personal service of the subpoena, against non-resident, absent or concealed defendants who fail to appear after publi- cation of notice of an order to appear, and also for want of answer after the defendant's appearance has been entered. * Harris v. Deitrich, 29 Mich. 366. 5 Buchoz V. Lecour, 9 Mich. 234 ; Emerson v. Atwater, 12 Id. 314 ; McCabe V. Farnsworth, 27 Id. 52. « Eaton V. Eaton, 33 Mich. 305. ' Torrans v. Hicks, 32 Mich. 308. 8 Covell V. Cole, 16 Mich. 223. « Thayer v. Lane, Walk. Ch. 200 ; Chandler v. McKinney, 6 Mich. 217; Smith V. Smith, 13 Mich. 258 ; BaUentine v. Clark, 38 Id. 395. 48 TAKING BILLS AS CONFESSED. SECTION II. FOB WANT OF AN APPEAEANCE. After personal service of subpoena on defendant, if he does not appear within twenty days after the return day mentioned therein, the complainant on filing proof of such service may have an order of course to take the bill as confessed.^* Against J^on- Resident , Absent or Concealed Defendants. — The manner in which bills may be taken pro confesso against absent, concealed and non-resident defendants upon whom process of subpoena cannot be served, is prescribed by the statute and rules of court as follows : After the filing of a bill the circuit judge or circuit court commissioner may make an order for the appearance of a defendant at a future day to be specified as follows: 1. -When the defendant resides out of the State, upon proof by affidavit of the fact. 2. When the defendant is a resident of the State, upon proof by af&davit that the process for his appearance has been duly issued, and that the same could not be served by reason of his absence from, concealment within the State, or continued absence from his place of residence.' ' Affidavit. — To obtain an order in any of the foregoing cases, there must be proof by affidavit of the fact, as the court's juris- diction depends upon it. Mere information and belief is not sufficient.'^ In the case of a non-resident the affidavit should state the defendant's residence, if he has actual knowledge. If not, from whom he obtained the information. " Ch. Rule 11. " 2 Comp. L. 1871, 2 5116. J-' Piatt V. Stewart, 10 Mich. 260 ; Thompson v. Thomas, 11 Id. 274 ; King V. Harrington, 14 Id. 533 ; 1 Barb. Ch. Pr. 92 ; Peck v. Cook, 41 Barb. 549. TAKING BILLS AS CONFESSED. 49 In the case of an absent or concealed defendant, the affida- vit should state all the particulars as to the place and manner of his residence, the length of time it has continued in the place sworn to, whether he is a householder, or has a family, so that the court may see whether he was an actual resident of the State at the time of the commencement of the suit. When process cannot be served by reason of the defendant's continued absence from his place of residence the affidavit should state the party's residence and his continued absence therefrom. Each case must depend upon its particular cir- cumstances.. Mere temporary absence with the intention of returning within the time specified in the order would not justify its issuing. But if the party is "txpected to be absent such a length of time as to -produce unreasonable delay ii} the cause it would constitute a " continued absence." In determining as to the propriety of granting the order, the court will consider whether it is necessary for the purpose of expediting the cause. ^^ Order to Appear. — The order to appear requires the defend- ant to appear and answer as follows : 1. If a resident of the State, in not less than three months. 2. If he be a resident of some other of the United States, or of one of the Territories thereof, or of the British Provinces of North America, in not less than four months. 3. If he be a resident of any other State or country, not before mentioned, or if he has departed from his last known place of residence, and his residence cannot be ascertained, in not less than five months from the date of making such order. 1* " 1 Barb, Ch. Pr. 93 ; Torrans v. Hicks, 32 Mich. 308. See Pettiford v. Zoellner, 45 Mich. 358, for a discussion as to effect of affidavit on jurisdiction. " 2 Comp. L., 1871, § 5117, as amended by Laws 1881, p. 47. ^s to affidavits of printtr , 2 Comp. L. 1871, ?§ 5924-5927 ; Perrien v. Fetters, So Mich., 233 ; Gillett v. Needham, 37 Id., 143 ; Brown v. Phillips 40 Id., 264. 50 TAKING BILLS AS CONFESSED. Fublication of Notice of Order. — Such order must be pub- lished within twenty days after it shall have been made in some newspaper printed in the county, or in such other paper as the court may direct, once in each week for six weeks in succession. Such publication will be unnecessary when a copy of such order shall have been personally served on the defendant at least twenty days before the time prescribed therein for the appearance of such defendant. ^^ The court may, if necessary, by further order extend the time of such appearance and shall direct the publication of such further order for such time as shall seem proper, i « Order to take BUI as Confessed.— If the defendant shall not appear within the time limited, upon due proof of such publi- cation or of the personal service of such order, the Qomplain- ant's bill may be taken as confessed, and the court may, at the request of complainant, direct a reference to a commis- sioner to take proof of the facts and circumstances stated in the bill. 1' The commissioner to whom such reference may be made must take such proofs as may be offered, but the bill will not be considered evidence before him of any fact therein stated. When so directed ■ by the court he may receive the testimony of the complainant. > ^ Whenever the bill shall have been filed for the payment or satisfaction of any money the court may in its discretion direct that the complainant be examined by the commissioner as to any payments that may have been made to him or to any person for his use, etc., and which should have been credited on such demand, or he may be examined in open court. ^' The order to take the bill as confessed and for a reference in the foregoing cases may be entered of course on filing proof 16 2 Comp. L. 1871, ? 5118; King v, Harrington, 14 Mich. 533. " 2 Comp. L. 1871, ? 5119. 1' 2 Comp. L., ]871, § 5120. " 2 Comp. L., 1871. ? 5121. i» 2 Comp. L., 1871, § 5122. TAKING BILLS AS CONFESSED. 51 of publication ; but the order requiring the defendant to appear and designating the paper in which it shall be pub- lished, etc., can only be obtained on special application. 2" Where a defendant is brought in by publication, based on proper showing by affldavitj the question of the validity of the subpoena issued in the case is not involved, ^i There can be no valid personal decree without either per- sonal service or submission to the jurisdiction.^ ^ Jurisdiction over non-residents and absentees is special, limited and dependent upon the statute. And the requisite facts must affirmatively appear upon the record. ^^ But when a non-resident party appears and answers, prior defects in proceedings to bring him into court are waived. 2* Any defendant brought in by publication has the right, on payment of costs, to be heard after decree, except ia decrees for divorce 2 ^ Upon a default by a non-resident defendant brought in by publication, there can be no decree without proofs, and the complainant should be sworn as to payments. ^^ Infant Defendants. — Where there is an absent or concealed infant defendant the statutory method as to notice must be pursued; and on the expiration of the time fixed for his appearance, if no one applies in his behalf, the complainant may move for a guardian ad litem.^'' "0 Ch. Rule 16. 81 Torrans v. Hicks, 32 Mich., 307. " Otithwite V. Porter, 13 Mich., 533 ; Tyler v. Peatt, 30 Id., 63 ; Lillibridge V. Tregent., lb, 105; Innes v. Stewart. 36 Id., 285; Lawrence v. Fellows, Walk. Ch., 468, Judge Campbell's note. 2= Piatt V. Stewart, 10 Mich., 260; King v. Harrington, 14 Id., 532; Tor- rans V. Hicks, 32 Id., 307. 2 4 Griggs V. D. & M. R. R. Co., 10 Mich., 117 ; Stone v. Welling, 14 Id., 514, and cases of waiver cited in note 1, in annotated edition. 26 2 Comp. L. 1871, ? 5127; 10 Mich. 117, supra; McDonald v.McDonal,!, 45 Mich. 45. ' 2s Brown v. Thompson, 29 Mich., 75; 2 Comp. L., 1871, U 5120, 5121. 5122. " Bank of Ontario v. Strong, 2 Paige, 301; 1 Barb. Ch. Pr., 95; 1 Hoff. Ch. Pr., 194. 52 TAKING BILLS AS CONFESSED. I/wrwMc Absentee. — ^A similar course may be pursued in case of a lunatic absentee.^ * Foreign Corporations. — See ante, p. 36. Affidavit of Begularity. — ^Wherie a foreclosure bill has been taken as confessed the complainant must show whether the proceedings to take the bill as confessed have been regular, and whether thejpro confesso has been taken upon due service of subpoena, or after appearance, or whether some of the defend- ants have been proceeded against as absentees. ^^ The affidavit of regularity is for the convenience of the judge only. The rule only requiring that evidence in that or some other form should be furnished. 2" An amendment of the bill after ^ro confesso wiU have the effect to set aside the default. ^ ^ SECTION III. FOE WANT OF AN ANSWER, If complainant has received notice of the defendant's appearance, and 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. If he does not require a copy, he shall plead, answer, or demur, within the same time, or the bill may be taken as confessed.* ^ " 1 Hoff. Ch. Pr., 194. "Ch. Rule 92; Stockton v. "Williams, Harr. Ch. 241 ; Smith v. Saginaw City Bank, lb, 426 ; Brewer v. Dodge, 28 Mich. 359 ; Hunt v. Wallis, 6 Paige 371. > a so Ireland v. Woolman, 15 Mich. 253. " 1 Dan'l Ch. Pr. Chap. XI, § 1, 522. As to affidavit of regularity in divorce suits, see Ch. Rule 96. us Ch. Rule 11. TAKING BILLS AS CONFESSED. 53 The same proceedings substantially are to be had to take the bill as confessed for wan j of an answer, as for want of an appearance.^* Setting aside a Default. — A regular order jpro confesso will not be set aside on an affidavit of merits and of excuse for default merely. The application is addressed to the sound discretion of the court, and should be based upon affidavits and the answer proposed to be filed, duly sworn to.^* The affidavit of merits should be made by the defendant himself or, if made by counsel, good reason must be shown for its not being made by the party.* ^ The general rule is that when a defendant presents a sworn answer which shows a defense, and there is an excuse shown for the default, or states in his petition or affidavit the nature of his defense and his belief in the truth of the matters consti- tuting such defense, the court will permit him to file an answer on terms.** A decree by default may be set aside on motion without petition when the facts upon which the motion is based appear by the record.*^ The inclination of the court is always to permit an answer to be filed, if it discloses a defense, unless there has been inten- tional delay.** After a decree has been entered on a bill regularly taken as confessed, the question of opening it to let in a defense on the merits should be brought before the court by petition, accompanied by the answer proposed to be put in. A stronger case must be made in such a case than to vacate an order pro confesso before decree.*' " 2Barb. Ch. Pr. 97. " Stockton V. Williams, Harr. Ch. 241 ; Russell v. Waite, Walk. Ch. 31. " Bank of Mich. v. Williams, Harr. Ch- 219. °^ Stockton V. Williams, supra; Hunt v. Wallis, 6 Paige ,371 ; Smith v. Pag. Bank, Harr. Ch. 426 ; Livingston v. Dean, 2 Johns. Ch. 479. " Graham v. Elmore, Harr. Ch. 265 ; Brewer v. Dodge, 28 Mich. 359. ' ° Smith V. Sag. Bank, supra, " Hart V. Linsday, Walk. Ch. 72 ; Lansing v. McPherson, 3 Johns. Ch. 424. CHAPTBE IX. THE DEFENSE TO A SUIT. Section 1. Proceedings by Defendant previous to putting in his Defense. 2. The Different Sorts of Defense. 3. Demurrer. 4. Plea. 5. Answer. 6. Disclaimer. 7. Joinder of Several Defenses, SECTION I. PEOOEEDING® BY DEFENDANT PREVIOUS TO PUTTING IN HIS DEFENSE. Having now considered the metliod of bringing the com- plainant's case before the court, and the means for compelling the defendant to submit himself to its jurisdiction, or of enab- ling the complainant to proceed with the suit without his appearing therein, we will consider the course of the defendant who is willing to submit himself to the authority of the court, and to abide its decision. Before considering the several kinds of defenses which may be adopted, we will notice certain preliminary steps which may be taken by the defendant before pleading. Mnploying a Solicitor. — The first step usually taken is to employ a solicitor to appear in the case. A special authority is not necessary for this purpose; a solicitor however should not appear without some authority.^ 1 1 Barb. Ch. Pr. 99; 1 Hoff. Ch. Pr. 25 ; 1 Dan. Ch. Pr. Chap. VI, ? 2 and Chap. XII. As' to remedy against solicitor who appears without authority, see Am. Ins. Co. V. Oakley, 6 Paige, 406. 54 THE DEFENSE TO A SUIT. 55 Ordj&r to Deliver Copy of Bill. — The defendant's appearance being entered, he may have ah order, of course, that the com- plainant deliver a copy of the bill in twenty days, or that the suit be dismissed. If such copy is not so delivered after service of notice, on filing an affidavit of the service of such notice, and that no copy has been [served, he may have a decree of course dismissing the suit with costs, for want of prosecution.^ Excepting to Bill for Scandal or Impertinence. — If the bill con- tains scandalous or impertinent matter, the defendant may, before putting in his defense, take exceptions to the bill that the matter may be expunged. Exceptions for this cause are to be taken in the same manner as exceptions to an answer for insufficiency and may be submitted to in like manner. If not submitted to, the defendant must refer them or they will be considered as abandoned.^ Exceptions must be taken before answering the bill or sub- mitting to answer by obtaining an order for further time, or they will be considered as waived.* The practice upon exceptions to bills for scandal or imper- tinence is the same as that upon exceptions to answers.^ [_8ee post Sec. F.] Motion for Production of Papers. — The court only orders the production of books and papers, previous to the final hearing, upon two principles. Security pending the litigation, and dis- covery or inspection for the purpose of the suit. But on appli- cation of the defendant before answer, the court under special circumstances will order that the complainant should not com- pel him to answer until after the production of certain docu- ments described in the bill, when it appears that such pro- duction is essential to a proper answer. « » Ch. Rule 14. s Ch. Rule 30, * 1 Barb, Ch. Pr. p. 101. ' Ch. Rule 30. « 1 Barb. Ch. Pr. p. 101 ; 1 Hoff. Ch. Pr. p. 209 ; Watts v. Lawrence, S Paige 159 ; 1 "Wilson 113. 56 THE DEFENSE TO A SUIT. Security f i > 2« Barstow v. Smith, Walk. Ch., 394; Cooper Eq. PI., 113. 2 ' Barstow v. Smith, supra. ; Clarkson v. DePyster,3 Paige, 336. = » Farwell v. Johnston, 34 Mich., 342. "" Le Baron v. Shepherd, 21 Mich., 263. " Flanders v. Chamberlain, 24 Mich., 305; Schwarz v. Sears, Walk. Ch., 170. DEMtTEEEES. 61 It is too late to ask leave to amend a bill dein,urred to after the Supreme Court has affirmed the decree of the court below. ^1 Speaking Demurrers. — A demurrer should rely only upon the facts stated in the bill, otherwise it will be what is called a speaking demurrer, that is where a new fact is introduced to support it, and will be overruled. ^^ 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 hold good, the demurrer will be allowed. Separate Demurrers. — A defendant may put in a separate demurrer to separate and distinct pai-ts of a bill for separate and distinct causes. ^^ When Coupled with Answer. — The answer must not cover the part of the bill demurred to, or it will overrule the demurrer.^* Where a demurrer and answer are put in, they are filed as one record, and the demurrer is set down for argument as if it stood alone. ^^ By Married Women. — In a suit against husband and wife, the latter cannot demur separately from her husband excejpt by a previous order pf court. '^ Demurrer ore tenus. — At the hearing of the demurrer the defendant may assign orally anothsr cause of demurrer in addi- tion to those assigned upon the record, and which if valid »i Bank of Mich. v. Niles, Walk. Ch., 398. »2 1 Barb. Ch. Pr. 107 ; Story's Eq. PI. I 448 ; Cooper Eq. PI. Ill ; 1 Dan. Ch. Pr., Chap, xv, ? 1, p. 587 ; Kuypers v. D. R. Ch 6 Paige, 570. 8 3 1 Barb. Ch. Pr. 107. Under U. S. Equity Rule 32, a defendant may demur to part, plea to part, and answer to residue. " 1 Barb. Ch. Pr. 108. Such is not the effect in the U. S. Court, Eq. Rule 37. 8s 1 Barb. Ch. Pr. 108. 8 6 1 Barb. Ch. Pr. 108. ■ 62 DBMUEEEES. will support it, although the causes of demurrer stated in the demurrer itself are held to be invalid. * ^ This oral statement is called demurring ore terms. But it cannot be done unless there is a demurrer on the record. The causes thus assigned must be co-extensive with the demurrer upon the record.^' Under the general demurrer for waiit of equity, a demurrer for want of parties may be made we tenus. (a) This kind of demurrer is only allowed upon new grounds ; not when a written demurrer involving the same point has already been overruled.^' A mere verbal demurrer is unauthorized in the circuit courf Demurrer; How Signed. — A demurrer must be signed by the solicitor of rec )rd or counsel. It is put in without oath as it asserts no fact. It need not be signed by the defendant. (&) 'When to he Filed. — A demurrer may be filed at any time within twenty days from the return day of the writ unless the defendant demands a copy of the bill, in which case he must demur within twenty days from the service of such copy or the bill will be taken as confessed. * ' As a general rule the defendant cannot demur after having obtained time to answer.*" Service of. — The demurrer having been filed in the proper office, a copy must be served on the complainant or his solic- itor. Noticing for Argument. — Where the defendant pleads or demurs to a bill the complainant has twenty days in which to file a replication to his plea or amend his bill, and if he does (a) Robinson v. Smith, 3 Paige, 231 ; Story's Eq. PI. ? 464 ; 1 Dan. Ch. Pr. Chap. XV, § 1, p. 588. »' 1 Barb. Ch. Pr. 109; Clark v. Davis, Harr. Ch. 227. (b) 1 Dan. Ch. Pr. Chap, xv, g 1. P- 590 ; Story's Eq. PI. ? 461; Mitt Eq. PI. 208; Cooper Eq. PI. 114. »8 Jenks V. Brown, 38 Mich. 651. " Ch. Rule 11. *» 1 Barb. Ch. Pr. 109 ; Graham v. Elmore, Harr. Ch. 265. DBMUEEEKS. 63 not take issue on the plea or amend, either party may notice the demurrer for argument at the next or any subsequent term.*i Frivolcms. — If the demurrer is overruled as frivolous, the complainant may, unless the court otherwise directs, have an order to take the bill as confessed, or he may compel the defendant to answer the bill at his election. In all other cases if the demurrer be overruled, a further demurrer will not be received, and the defendant must answer the bill and pay costs of the hearing within twenty days after notice of the order, or the bill may be taken as confessed. *2 Effeot of Allowing Demurrer. — Where a demurrer is sus- tained it is usual to give leave to amend on paying costs, if the Court can see on the argument that the objection can be obviated by amending the bill. If the Court cannot see from the facts before it that such objection can be removed, then the complainant must apply for leave to amend by petition, setting forth the additional facts sought to be incorporated in the bill.* 3 The complainant should permit no delay in amending his bill after knowledge of defects therein.** When Demurrer Not to be Held Bad. — 'No demurrer shall be held bad and overruled on argument only because such demurrer or plea does not cover so much of the bill as it might by law have extended to ;* ^ nor because the answer 6f the defendant may extend to some part of the same matter as may be covered by such demurrer.*^ *i Ch. Rule 25. " Ch.Rule 26. Note — In the U. S. Court if complainant neither replies nor sets down the demurrer for argument he shall be deemed to admit its truth and sufficiency, and the bill will be dismissed unless further time be allowed. — U. S. Eq. Rule 38, and see U. S. Eq. Rule 33. " Bank of Michigan v. Niles', Walk. Ch. 398. .See U. S. Ct. Eq. Rule 34. ' *■• Bank of Michigan v. Niles, supra. " Ch. Rule 41. *' Ch. Rule 42. 64 DEMUEKEES. Effect of Overruling Demurrer. — If a demurrer to the bill be overruled tlie complainant may, within ten days thereafter, amend his bill of course and without costs, etc. But no amendment of course of injunction bills, or those which are inconsistent with the original sworn bill will be allowed.*'' Upon overruling a demurrer the correct practice is to grant the defendant leave to answer, unless the defects are not amendable ; and upon his failure to answer within the time granted to enter a decree of dismissal.** Defective Demurrer. — Where the demurrer is defective in form, thfe defendant may by motion obtain an order to with- draw it on payment of costs. Also where on the hearing of a demurrer to the whole bill it appears that the defendant is entitled to demur to some part only, the Court will permit the proper amendment.* ^ Amendment of Bill After Demurrer. — If the defendant demurs to the bill for want of parties, or for any other defect which does not go to the equity of the whole bill, the com- plainant 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 permitted, will be in the discre- tion of the Court. ^ " There must be no delay in amending.^ ^ 42. 4' Ch. Rule 23. U. S. Ct. Eq. Rules 36 and 37, are to the same effect as above Rules 41 and *^ Creasey v. St. George's Society, 34 Mich., 51; Lamb v. Jeffrey, 41 Id. 719 ; Eberts v. Fisher, 44 Id. 551. *' 1 Barb. Ch. Pr. 111. "0 Ch. Rule 22. 51 Bank of Mich., v Niles, Walk. Ch., supra PUEAS. 65 SECTION IV. PLEAS. Nature and Uses of Pkas. — When the objection is not appar- ent on the bill itself, the defendant, if he wishes to take advan- tage of it, must show to the Court the matter which creates the objection, either by plea or answer. A plea is in the nature of a special answer pointing out one or more things as a cause why the suit should either be dismissed, delayed or barred.*^ The true end of a plea is to save to the 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 which the plea applies : Hence a plea to be good, whether it be affirmative or nega- tive, must be either an allegation or a denial of some lead- ing fact, or of matters which taken collectively make out some general fact conducive to a single point, and which is a com- plete defense.*^ Where the alleged defense to a bill is fraud, consisting of a variety of circumstances, it should be taken advantage of by answer and not by plea.^* Pleas are Affirmative or Negative. — The former are founded upon some matter not apparent on the face of the bill. The latter, upon some new fact or claim of facts not apparent upon »2 1 Barb. Ch. Pr. 114; Story's Eq PI., ?? 647-648; Mitfd. Eq. PI. 219. " Story's Eq. PI., ?? 652, 654. As to tht requisites of a plea in general, see Bank of Michigan v. Williams, Harr. Ch. 219; Schwarz v. Wendell, lb. 395 ; Thomas v. Stone, Walk. Ch. 117 ; Albany Bank v. Dorr, lb. 317 ; Carroll v. Potter, lb. 355 ; Parker v. Parker, lb. 457; Emerson v. Atwater, 7 Mich. 12. " Carroll V.Potter, Walk Ch.355; Cooper Eq. PI. 223, 66 PLEAS. the face of the bill, or upon a denial of the truth of some mat- ter stated in the bill upon which the right of complainant depends. ^5 They are usually grouped under four heads : 1. To the jurisdiction ; 2. To the person of the plaintiff j 3. To the frame or form of the bill ; 4. In bar of the bill. To the Jurisdiction of the Court. — Pleas to the jurisdiction of the court do not dispute the rights of the plaintiff in the sub- ject matter of the suit, or that they are fit objects of equity cognizance, but simply assert that the Court of Chancery is not the proper court to take cognizance of those rights. «« To the Persoii. — Pleas to the person do not dispute the validity of the rights made the subject of the suit ; but they assert that the plaintiff is disabled by law to^sue in a court of justice, or that he cannot institute a suit alone, or that he is not the person he pretends to be, or that he does not sustain the character he assumes. '^ Pleas to the Bill. — Pleas to the bill, or its frame, resemble pleas at law, which are in abatement to the action of the writ, viz., Pleas of pendency of another suit for the same matter in another court; Want of proper parties; Multiplicity of suits, and Multifariousness.^' Pleas in Bar. — These may be ranked under three heads : 1. Pleas founded- on some bar created by statute; such as statute of limitation or the statute of frauds ; 2. Eelease founded on matter of record, as a former decree ; 3. Pleas of matter purely in pais, that is, matter of fact which is not of record, the principal of which are : Eelease, Stated account, " 1 Barb. Ch. Pr. 114-115; Story's Eq. PI., ? 652; 1 Dan. Ch. Pr., Chap. XV, I 1, p. 604. Jfote. — In the U. S. Courts no plea to a bill is allowed unless upon a certifi- cate of counsel that it is well founded in point of law, a"d supported by an affi- davit of the defendant that it is not interposed for drlay, and that it is true in point of fact. U. S. Eq. Rule 31. 5« Story's Eq. PI., ? 706; Mitf. Eq. PI. 221; Beames PI. in Eq. 56-60. »' Story's Eq. PI., ?§ 735; 835 ; Beames PI. in Eq. 138. PLEAS. 67 Settled account, An award, Purchase for a valuable considera- tion, and Plea of title in the defendant.^* When Complainant has Assigned his Interest m the Suit. — A plea that complainant has parted with his interest in the suit is a good defense.^' Frame of a Plea. — A plea is preceded by a title, thus: "The plea of A. B., a defendant to the bill of complaint of C. D.," etc. A plea, like a demurrer, is introduced by a protestation. It should next state how much of the bill it is intended to cover, and what part in particular, and this must be distinctly shown. A plea in bar must be accompanied by an answer showing the truth of the plea, and denying the charges of the bill. If the plea professes to go to the whole bill, and cover the whole subject to which it applies, and the matter is a full defense to the suit, it is unnecessary to answer other parts not involved in the defense. A plea must be perfect in itself so that if true it will dispose of the case. The plea usually concljides with the statement that the matters pleaded constitute a 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 to answer the bill, etc. If the plea is double, i. e., tenders more than one defense as the result of the facts stated, it wiU be bad. (a) A plea is not rendered double by the mere insertion therein of several averments necessary to exclude conclusions arising from alle- gations made in the bill to anticipate and defeat a bar. (6) The rule that a defendant cannot plead double is not to be understood as precluding the defendant f .om putting in several pleas to diiferent parts of the bill. It merely prohibits his " Story's Eq. PI, ?? 748, 749-795; Mitf. Eq. PI. 236. "9 Wallace v. Dunning, Walk. Ch. 416; Webster v. Hitchcock, 11 Mich. 56; Perkins v. Perkins, 16 Id. 162; Brewer v. Dodge, 28 Id. 359; Mills v. Hoag, 7 Paige, 18. (a) 1 Dan. Ch. Pr., Chap, xv, | 1, p. 607 ; Story's Eq. PI. ? 653-4 ; Good- rich V. Pendleton, 3 Johns. Ch. 386. {I) Bogardus v. Trin. Ch. 4 Paige, 178. 68 PLEAS. pleading, without previous leave, a double defense to the whole bill, or to the same portion of it.*" A plea, unlike a demurrer, may be bad in part, and not in the whole. This refers to its extent, and not to the ground of defense offered by it. If any part of the defense made by the plea is bad, the whole must be overruled. The plea must be certain, and must tender issuable matter the truth, or falsehood of which may be replied to. When 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 a 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. If the plea is such that an enswer is required to support it, it will be over- ruled unless such answer is put in.^i A plea of release and account stated must be supported by an answer. The latter glea must aver that the accounts settled all the dealings between the parties, and that they were just and fair. '2 A plea must rest the defense upon a single point otherwise it will be bad."^ It must be positive and not on belief when it states a fact within defendant's knowledge, or touching his own acts ; but when it relates to the act of third persons, it may be on information and belief.** A defendant may plead to one part of the bill, and answer to another part, but these defenses must clearly refer to separate and distinct parts of the bill. When the answer and plea «» 1 Dan. Ch. Pr. Chap. xv. ? 1, P- 610; 1 Barb. Ch. Pr. 116. «i 1 Barb. Ch. Pr. 117; Mitf. Eq. PI. 296-300. «8 Schwarz v. Wendell, Harr. Ch. 395. "> Albany City Bank v. Dorr, Walk. Ch. 317,355; Goodrich v. Pendle- ton, 3 Johns. Ch. 384; Story's Eq. PI. J 654. «« Parker v. Parker, Walk. Ch. 457 ; Coop. Eq. PI. 228. PLEAS. 69 are to the same parts of the bill the answer orerrules the plea. "5 A plea is superseded by amending the bill.** A plea of a former suit ponding in another court for the same cause of action must set forth the general character and objects of the said suit, and the relief prayed.*' A plea of bona fide purchase without notice must aver, not only a want of notice at the time of the purchase, but also at the time of its completion and the payment of the money.*' Where it is shown by special plea that there is no equity in the bill the injunction will be denied.*^ Mandamus will not lie to compel a judge to set aside a plea as irregular.'* Signature. — A plea must be signed by the solicitor.(a) When Plea must he Sworn to. — Pleas in bar of matters in pais which would require to be proven at the hearing, must be put in on oath of the defendant; but such as are to the jurisdiction of the court, or in disability 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 "s Clark V. Sag. Bank, Harr. Ch 240; Mitf.Eq. PI. 319. Note. — In the U. S. Court the defendant may at any time before or after the bill is taken as confessed, with leave of the Court, plead to the whole or a part of the bill. But when the bill charges fraud, a plea to such part must be accompan- ied with an answer fortifying the plea and denying the fraud. Eq. Rule 32. «« Peck V. Burgess, Walk, Ch. 485. " Bank of Mich. v. ■Williams, Harr. Ch. 219. "8 Thomas v. Stone, Walk. Ch. 117; Jewett v. Palmer, 7 Johns. Ch. 65 ; Dickerson v. Tillinghast, 4 Paige, 215. As to amount of proof : Emerson v. Atwater, 7 Mich. 12. «9 Eldred v. Camp, Harr. Ch. 163. ""> People V. Hunt, 41 Mich. 5. (a) 1 Barb. Ch. Pr. 117; 1 Dan. Ch. Pr. Chap, xv. ?iv. p. 689; 1 Hofif. Ch. Pr. 221. 70 PLEAS. on oath. But if there are necessary averments of matters in pais, supporting a plea of a record, then it must be on oath.''' In all cases where a plea is acconipanied by an answer it must be put in on oath. When an oath is omitted in a proper case the irregularity will not be waived by the complainant's taking any proceeding upon it. A plea must be verified although the complainant has expressly waived an answer from the defendant under oath, (c) If a plea be not sworn to, the complainant may apply for an order to have it stricken from the files ; but it is too late to make the objection upon the argument of the plea.^^ The plea being filed, a copy must be served on the complain ant or his solicitor.(d) Time of Pleading. — Upon return of subpoena served if the defendant does not require a copy of the bill he shall plead within twenty days from the return day therein, or in default thereof the bill may be taken as confessed, etc. Copies of every pleading by a defendant must be served within the time limited for filing the same.'' ^ If the defendant fail to plead within the time limited for the same, the complainant may on filing an af&davit for dis- covery and service thereof, with notice, move for an attach- ment.'* Amendment of BUI. — If a plea to the bill be overruled the complainant may within ten days thereafter amend his bill of course and without costs, unless it be an injunction bill.'' Practice on Ming Pleas. Beplication.—Whcn the defendant pleads to a bill the complainant has twenty days to file a repli- cation to his plea, or amend his bill. And if he does not take " 1 Barb. Ch. Pr., 118; 1 Hoff. Ch. Pr. 221. (c) 1 Hoff. Ch. Pr. 221; Story's Eq. PI. ? 672-674; 1 Barb. Ch. Pr. 118 " Heartt v. Corning, 3 Paige, 569. ((/) Ch. Rule 11. " Ch. Rule 11. '* Ch. Rule 12. " Ch. Rule 23. PLEAS. 71 issue on the plea or amend the bill within that time, either party may notice the plea for argument at the next or any subsequent term. If the plea is allowed, the complainant may within ten days after notice of such allowance take issue tlicreon upon payment of costs.'* Placing on the Calendar. — If either party desires to test the yalidity of the plea, he must notice it for argument by filing with the Register a note of issue as in cases of hearing. And in making up the calendar it shall be placed on the second class of causes, and will have priority from the time when the plea was filed.'' Replication to Plea. — If the complainant, without argument, thinks the plea, though good in form and substance, not true in point of fact, he may take issue upon it by filing a replica- tion, and proceed to examine witnesses as in case of an answer. ' * The effect of the replication is an admission that the plea is good, and its truth is the only matter in question. On issue taken the defendant must prove the facts. If he succeeds, the suit to the extent of the plea is barred.' ' A replication puts in issue nothing except what is dis- tinctly averred in the plea.^* Argument of Plea. — The proceedings upon the argument of a plea are substantially the same as those relating to demurrers. If a plea is supported by an answer, upon the argument the answer may be read to counter -prove the plea; and if the defendant appears not to have sufficiently supported his plea by his answer the plea must be overruled, and ordered to stand for an answer only.** »• Ch. Rule 25. " Ch. Rules 63 to 66. Hurlbut V. Britain, 2 Doug. 194. " Mitf. Eq. PI. 301, and cases cited. See U. S. Eq. Rule 38. " Hurlbut V. Britain, Walk. Ch. 454; Dubois v. Campau, 37 Mich. 248; Dows V. McMichael, 6 Paige, 139. "» Fish V. Miller, 5 Paige, 26. •1 Mitf. Eq. PI. 304. 72 PLEAS. Upon the argument, every fact stated in the bill, and not denied by the averments in the plea and by the answer in sup- port of the plea, must be taken as true ; and if a plea be set down for argument by the complainant without replying to it, the matter contained in it must be considered as true.' ^ Where issue is taken upon a plea, and the truth of such plea is established by the proofs, the biU must be dismissed, as the Court, at that stage of the proceedings, will not inquire or decide as to the validity of the matters pleaded as a defense to the suit.'* But if the plea is untrue, the complainant will be entitled to a decree against the defendant,, as on pro confesso.*^ A plea upon argument may be either allowed simply, or the benefit of it may be saved to the hearing, or it may be ordered to stand for an answer, or it may be overruled, (o) When Plea not to ie Overruled. — 'So plea will be held bad, and overruled upon argument only because it does not cover so much or the bill as it might by law have extended to.*' If either will it be held bad and overruled upon argument only because the answer of the defendant may extend to some part of the same matter as may be covered by the plea.'* Where a plea is filed to the bill, and the bill is amended, and defendant answers the amendment, the effect is to supersede the plea.''' Saving the Benefit of a Plea at the Searing. — When on the argument of the plea it appears to the Court that it may be a good defense, and yet there may be matters disclosed in eVi- «a Bogardus v. T. Church, 4 Paige, 178. »= Dows V. McMichael, 6 Paige, 139. »* Hurlbut V. Britain, 2 Doug. 193; Dows v. McMichael, 2 Paige, 345. (a) 1 Barb. Ch. Pr. 121. 8B Ch. Rule 41. U. S. Equity Rule 36. "> Ch. Rule 42. U. S. Eq. Rule 37 ; See U. S. Eq. Rule 34. »» Peck V. Burgess, Walk. Ch. 485. PLEAS. 73 dence which might avoid it, the Court will direct that the defendant shall have the benefit of it at the hearing.* * Ordering a Flea to Stand for an Answer. — ^When a plea is allowed 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 matters 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 an answer.*' Courts do not favor a plea in bar; but the overruling of such a plea does not deprive the defendant from insisting on the defease in his answer.*' Practice as to Frivolous Fleas. — If a plea is overruled as friv- olous, or a plea upon issue thereon is found to be untrue, the complainant may, unless the Court otherwise direct, have an order to take the bill as confessed, or he may compel the defendant to answer the bill at his election. In all other cases if the plea be overruled a further plea shall not be received, and the defendant shall answer the bill and pay the costs of hearing within twenty days after notice of the order overruling the plea, or such other time as may be prescribed by the Court. If he fail to put in his answer and pay costs within the time prescribed, the bill may be taken as confessed, and the matter thereof decreed accordingly, or the complainant may have an attachment to compel an answer.'" Amending Flea. — ^When there is evidently a material ground of defense disclosed in the plea, but owing to some »8 Story's Eq. PI., §g 698, 699; 1 Barb. Ch. Pr. 122. " Orcutt V Paige, 3 Paige, 461; 1 Barb. Ch. Pr. 122.; »» Ch. Rule 26. 10 74 PLEAS. evident mistake it has not been correctly framed, the Court following the courts of law will exercise a discretion in per- mitting an amendment.' 1 In an application to amend the defendant's pleading, the proposed amendments should be set out. But an amendment will not be allowed unless with reference to additional facts, unknown to the defendant when the plea was filed, and con- sistent with the defense then made.' ^ When Plea must be Supported by Answer. — Where there is any statement or charge in the bill which affords an equitable circumstance in favor of complainant's case against the matter pleaded (such as fraud or notice of title), that statement or charge must be denied by way of answer as well as by aver- ment in the plea.' * In general an answer in support of a plea cannot be required in those cases where such negative averments as those above stated are not necessary. Where the defense can be made by a pure plea, that is, a plea which .merely suggests matter in avoidance of the complainant's right to sue as stated in the' bill, an answer in support of the plea is not required. In such case the defendant by his plea, admits the complainant's case ; and so full and complete is the effect of the admission that if afber argument, issue be joined upon the truth of the plea, and the plea be found false, there is an end to the dispute, and the complainant is entitled to a decree upon this implied admission of his case. '8 The cases in which it is necessary that a plea should be supported by answer have been very conveniently divided into » 1 1 Barb. Ch. Pr. 126 ; Freeman v. Mich. St. Bank, Harr. Ch. 311 ; 1 Hoff. Ch. Pr. 26; 1 Dan. Ch. Pr. Chap. xv. g ix. p. 703; Beames on Pleas, 321 ; Story's Eq. PI. |J 701, 895; Cooper Eq. PI. 234; Mitf. Eq. PI. 281. »= Freeman v. Mich. State Bank, Harr. Ch. 312. »» 1 Dan. Ch. Pr. Chap, xv, § ]. n. 615; Story's Eq. PI., §^ 669, 670; 1 Barb. Ch. Pr. 128. ; Beames PI. in Eq. 34, 35; Wheeler v. Piper, 3 Jones Eq. (N. C.) 249. 4 De G. M. & G. 437. See U. S. Ct. Eq. Rule 32. PLEAS. 75 (1) Those where the complainant admits the existence of a legal bar and charges some equitable circumstances to avoid its effect; and (2) Those where the complainant does not admit the existence of any legal bar but states some circumstances which may be true, and to which there maybe a valid ground of plea, together with other circumstances which are inconsistent with the substantial validity of a plea. 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 right 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 evi- dence can be given; for the purpose of counterprovingthe plea by reading from it any facts or admissions which may negative the matters pleaded or averred in the plea. The answer in support of the plea being no part of the defense, 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 charged in the bill to which the complainant is entitled to an answer, to be against the pleader, unless they are folly and clearly denied. But although an answer in support of a plea is required to be fiin and clear, yet if the equitable matters charged are fully and clearly denied, it may be sufiacient to support the plea, although all the circumstances charged in the bill may not be precisely answered. In such cases, however, the complainant is not precluded by the circumstance of the court having held, upon the argu- ment of the plea, that the charges in the biU are sufaciently denied to exclude intendment against the pleader, from after- wards excepting to the sufilciency of the answer in any point in which he may consider it defective, (a) (a) 1 Barb. Ch. Pr. 128. 76 ANSWERS. 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 support it by answer, (a) SECTION V. ANSWER. NaMre and Uses. — If the defendant does not demnr or plead, he must, unless he disclaims, answer to the bill. Every com- plainant is entitled to a discovery from the defendant of the matters charged in the bill provided they are necessary or proper to ascertain facts material to the merits of his case, and to enable him to obtain a decree. He is entitled to it either because he cannot prove the fects, or in aid of the proof, and to avoid expense. When, therefore, a defendant is called upon by bill to make a discovery ^of the several charges contained in it, he must do so by a general answer, for if he is compelled to answer, he' must in general answer fully to all the charges made which are well pleaded. »* The exceptions to the rule are ; (1) He is not bound to answer matters purely scandalous, impertinent, immaterial or irrele- vant; (2) Nor to answer to anything which may subject him to any penalty, forfeiture or punishment ; (3) Nor to answer what (a) Heartt v. Coming, 3 Paige, 566. For practice on filing, and effect of pleas in U. S. Eq. Courts, see Eq. Rules 31-39. 8* Schwarz V. Wendell, Walk. Ch. 267; Robinson v. Cromelein, 15 Mich. 316 ; Matteson v. Morris, 40 Id. 52; Story's Eq. PI., g 847 ; Bank of Utica v. Messereau, 7 Paige, 517; 520 ; Cooper Eq. PI. 312 ; Mitf. Eq. PI. 209. Note. — In the U. S. Eq. Courts a defendant need not answer fully in cases where he might by plea protect himself from such answer and discovery. Eq. Rule 39. AUSWEKS. 77 would involve a breach of professional confidence; (4) Nor to discover the facts respecting his own title, but merely those which respect the title of the plaintiff. In each of these cases if the defendant does not think proper to defend himself by a demurrer or plea, he may rasist that he is not obliged to answer. ''^ An answer is the most usual mode of defense to a bill in chancery ; and it may be put in either to the whole bill, or to such parts as are not covered by plea or demurrer. As it is capable of embracing more circumstances than a plea, it may be used with much greater propriety in cases where the defendant is not anxious to prevent a discovery. It generally traverses the allegations of the^bill, or some of them, and alleges other facts to show the rights of the defend- ant. Sometimes it confesses and avoids the several parts of the bill, or admitting the case made by it, submits the questions arising therein to the judgment of the court. ^ " An answer serves a double purpose : Mrst; That of answer- ing the complainant's case, and Second ; That of stating to the court the nature of the defendant's defense. First ; Of the Manner of Answering the Complainanl's Case. — As already stated, a defendant who submits to answer, must answer fully and unequivocally ; but this rule applies only to cases where the defense intended to be set up extends to the entire subject of the suit, subject however to the foregoing exceptions. But the rule only applies to matters which are well pleaded that is, to the facts stated and charged. To matters of law, or inferences of law drawn from the facts he need not answer." A "defendant must answer " as to his knowledge, remem- brance, information and belief," and in general where matters s's Brockway V. Copp, 3 Paige, 539; Story's Eq. PI. §§ 599, 846; 1 Greenl. Ev. ? 237; IBarb. Ch. Pr. 131, 132. '» 1 Barb. Ch. Pr. 130, 131. " Story's Eq. PI. §g 845,846;! Barb. Ch. Pr. 1 30 ; Schwarz v. Sears, Walk. Ch. 19 ; Schwarz v. Wendell, lb. 267 ; Gilkey v. Paige, lb. 520 ; Atty. Gen, V. Oak. Co. Bank, lb. 90; Shook v. Proctor, 27 Mich, 349; lb. 377. 78 ANSWEJiS. charged in the bill, as the acts of the defendant himself, are of such a nature that he can be presumed to recollect them if they ever took place, a positive answer is required. '* Where the defendant has no knowledge as to the facts stated in the bill, he may deny generally all knowledge or information of the same without answering as to each charge separately, and may put the allegations of the complainant in issue by the general traverse at the end of his answer.' * A defendant is bound to make use of due diligence to acquire the information necessary to enable him to make the discovery called for. To so much of the bill as is material and necessary for the defendant to answer he must answer directly and without evasion. He must not answer the charges inerely literally, but he must confess or traverse the substance of each charge positively and with certainty.^"" Affirmative relief will not be granted upon an answer in the absence of a cross bill.^ ° ^ Where the defendant both answers and demurs to different parts of the bill and the demurrer is overruled, the complain- ant must except to the original answer before he can obtain a farther answer. ' " ' The objection that a bill is too indefinite to form the basis of relief, cannot prevail under an answer when no special demurrer is put in, unless there is a lack of substantial aver- ments.'"^ 9 8 1 Barb. Ch. Pr. 1R3; Story's Eq. PI. ? 854; T. Bank v. Hyatt, 2 Edw. 195. Cooper Eq. PI. 314; Mitf. Eq. PI. 309. '« 1 Barb. Ch. Pr. 134; Utica Ins. Co. v. Lynch, 3 Paige, 210; Morris v. Parker, 3 Johns. Ch. 297 ; Norton v. Warner, 3 Edw. 106. i»o Story's Eq. PI. ?' 852;. Cdtjper Eq. PI. 313 ; Mitf. Eq. PI. 309, 310; King V. Ray, 11 Paige, 239 ; Morris v. Barker, 3 Johns. Ch. 297 ; 1 Barb. Ch. Pr. 136-137. 101 Vary v. Shea, 36 Mich. 388. i»2 Ch. Rule 27; Bragg v. Whitcomb, Walk. Ch. 307. i»» Salisbury V. Miller, 14 Mich. 160; Creasey v. St. George's Society, 34 Id, 51. AlfSWEES. 79 Wlien the subject of the suit is embraced under any of the appropriate heads of equitable jurisdiction the Court will take cognizance of it, notwithstanding there may be a remedy at law or other circumstances exist which would induce the Court to refuse to entertain jurisdiction in the particular case, unless the defendant raises the objection by demurrer, or claims the benefit of it in his answer. ^ "* While where the question is strictly jurisdictional, and the proof is specifically suited to the arbitrament of a jury, and the just disposition in a court of law, the Court may find good reason enough in principle and convenience for adhering to the established course; yet whereas in this State the same Judges hold both courts, there is no reason for great nicety. ^ " ' Second: Of the Manner of Stating the Defendant's Defense. — Besides answering the complainant's case, as made out by the bill, the defendant must state in his answer all the circum- stances of which he intends to avail himself by way of defense; for it is a rule that a defendant is bound to apprise the com- plainant by his answer of the nature of the cage he intends to set up, and that, too, in a clear, unambiguous manner, and that he cannot avail himself of any matter in defense which is not stated in his answer, even though it should appear in his evidence.^ "^ But the same degree of accuracy is not required in an answer as that in a bill. A defendant may, by his answer, set up any number of defenses, provided they are not inconsistent with each other When the defendant by his answer, sets up two inconsistent defenses, the result will be to deprive him of the benefit of either, and entitle the complainant to a decree. 1"* Williams v. Mayor, 2 Mich. 585; Bennett v. Nichols, 12 Id. 22; Flan- ders v. Chamberlain, 24 Id. 310; Wallace v. Harris, 32 Id. 891; Stockton v. Williams, Walk. Ch. 120. 106 Wallace v. Harris, supra. los Thayer v. Lane, Walk. Ch. 200, and note by Judge Campbell; Van Dyke v. Davis, 2 Mich. 147; Fosdick v. Van Husan, 21 Id. 567; Moran v. Palmer, IS Id. 367, and cases cited ; Ford v. Loomis 33 Id. 121 ; Smith v. Rum- sey, lb. 189 ; Match f. Hunt, 38 Id. 1 ; 6 John. Ch. 565. 80 ANSWEES. When the defense consists of a variety of circumstances rendering it doubtful whether a plea will hold, the defendant may set forth the whole by way of answer, and pray the same benefit of so much as goes in bar, as if it had been pleaded.* " ' And he can only defend his suit on the grounds set up in his answer, i"* ' Affidavits are not admissible to contradict the answer upon a motion for the appointment of a receiver.* " ' Fwm of Answer. — ^No particular form of words is necessary in an answer. It is headed by a title as follows : " The answer of C. D., the defendant, to the bill of complaint of A. B., com- plainant." If two or more join in the same answer, it is enti- tled, " The joint and several answer of C. D. and E. F., etc." An answer commences by reserving to the defendant aU manner of advantage which he might take by exception to the bill, for the purpose of avoiding the conclusion that the defend- ant submitting to answer, the bill must thereby be taken to admit everything which he does not controvert in express terms. The answers to the several matters contained in the bill, together with such additional matter as may be necessary either to qualify or add to the case made by the bill, or to state a new case on his own behalf, next follow. And it may be said here that whatever a complainant is bound to state in his bill the defendant may be required to admit or deny ; and where divers circumstances are stated he should not by his answer deny the allegations literally, but he should answer the point of substance positively and cer- tainly, n" And a defendant may set up in his answer matter which has occurred between the filing of the bill and the putting in of such answer. »»' IBarb. Ch. Pr. 138,139. IDS Vandyke V. Davis, 2 Mich. 145; Smith v. Brown, lb. 161; Governor v. Elmendorf, 5 Johns. Ch. 79. »•» Connor V. Allen, Harr. Ch. 371. "• Jones V. Dean, Harr. Ch. 301. ANSWERS. 81 This part of the answer is succeeded by a general denial of that combination which is usually charged in the bill, though this is not necessary unless a particular combination be charged.ii'^ The answer concludes by a general traverse or denial of all the matters alleged in the bill. It is a general rule that when .a defendant submits to , answer the whole bill, the answer must be responsive to the bill. 12 But the rules provide that a defendant shall be at liberty by answer to decline answering any part of the bill, from answering which he might 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^ Where an answer seeks to impeach a deed set out in the biU, it should state specifically the facts claimed to invalidate it.ii* A defendant cannot by his answer vary the terms of a written agreement. ' ^ ^ An infant being entitled to every exception to a bill in a suit against him without expressly saving it, the general saving clause, denial, combination, and the concluding denial, are omitted in an answer by him. Answers and copies are required by rule of court to be legibly written.^^^ If not so written the Register is prohibited from filing them. Signing. — The answer must be actually signed by the defendant putting it in, although an answer on oath is waived, unless an order has been obtained permitting the omission Under special circumstances, the Court will direct the Eegister to receive an answer though not signed by the defendant, as 1" Story's Eq. PI. § 856; Cooper Eq. PI. 314, 31-5. 112 Gilkey v. Paige, Walk. Ch. 520. lis Ch. Rule 43 ; Gilkey v. Paige, Walk. Ch. 520. 11* Payne v. Atterbury, Harr. Ch. 414. 1 ' = Schwarz v. Wendell, Walk. Ch. 267. 11= Ch. Rule, 67; 2 Comp. L. 1871, § 5683; Const. Art. 18, ? 6. 82 ANSWERS. when he went abrdad forgetting to put it in, or when he is a resident abroad, and his solicitor has a general power of attor- ney to defend suits. It may also be waived by complainant, and the filing of a replication is evidence of su6h waiver. But in all these cases, a special order of Court is necessary. ^ ' "> Where the answer is put in without defendant's signature, the court will order it to be taken off the file. Swearing to. — An answer is always under oath unless the complainant chooses to dispense with it.^ ' * Waiver of Oath. — The statute provides that when a bill is filed in chancery other than discovery only, the complainant may waive the answer being made on the oath of the defendant, and in such cases the answer may be made without oath, and shall have no other or greater force as evidence than the bill.119 The filing of a replication by the complainant will be con- sidered as evidence of a waiver of defendant's oath. K the complainant waives the necessity of the answer being made on 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 insuflficieney, 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 dis- tinctly put in issue by the answer, and if no replication is filed, the matters of defense set up in the defendant's answer will, on the hearing, be considered as admitted by the complainant although the answer is not on oath.^ ^ o Swearing to an answer when the oath is waived will give it no greater effect on the hearing than when not sworn to ; but when a preliminary injunction or a we exeat is prayed for in 11' 1 Barb. Ch. Pr. 141; Kimball v. Ward, Walk. Ch.439; Cooper Eq. PI. 326, 327 ; Story's Eq. PI. J 875; Dumond v. McGee, 2 Johns, Ch. 240. 11' 1 Barb. Ch. Pr. 142,143; Story's Eq. PI. J 874; Cooper Eq. PI. 325, 326. 'i» 2 Comp. L. 1871, ? 5067; And see U. S. Eq. Rule in Circuit Ct. 14, and Eq. Rule 41. i»» Ch. Rule 18; Torrent v. Rodgers, 39 Mich, 85. ANSWiSBS. ,83 the bill, the defendant may put in his answer on oath for the purpose of moving to dissolve the injunction or discharge the ne exeat. It merely performs the part of an af&davit. F(yrm of Oath. — Eule 8 prescribes the form of the oath to be administered to the defendant. Jurat. — As in the case of a bill, the substance of the oath administered to the defendant must be stated in the jurat.^^i Befm-e Whom Answer may be Sworn. — An answer may be sworn to before any officer authorized by the laws of the 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 such 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 plea or answer may be sworn to in any foreign coimtry before any minister or other diplomatic agent or con- sul of the United States, or any notary public ; but the certifi- cate of such notary shall be made under his notarial seal.^ ^ ^ Endorsing, FiUnr/ and' Serving. — The answer should next be . properly endorsed, filed in the Eegister's office, and a copy be served upon the complainant's solicitor. Time for Answering. — The defendant's answer must be filed within twenty days from the return day of the writ, unless a copy of the bill be demanded, in which case it will be twenty days from the service of such copy. ' ^ ' But if he is unable to prepare it within that time, it will be extended by the Court on special motion based on an affidavit showing the neces- sity.12 4 Effect of Answer in Chancery as Evidence: Examination of Defendant, as a Witness. — Where an answer in chancery is called 1" Ch. Rule 8 ; And see U. S. Eq. Rules 59 and 91. 1S8 Ch. Rule 19; 2 Comp. L. 1871, 2 5879. "» Ch. Rule 11. 1** 1 Barb. Ch. Pr. 147. 84 ANSWERS. for on oath, and the defendant of his own knowledge, fully and fairly negatives any allegation of the bill, complainant can have no relief depending upon that allegation unless the answer is overcome by more than the equally full testimony of one witness. But this rule amounts simply to this : That there can be no decree in favor of complainant, unless the evidence preponder- ates in his favor, and that where answer and opposing witness are equally fair and explicit, there can be no such preponder- ance. If defendant, after having thus answered, is called upon the stand as a witness under the statute, and famishes the means of destroying his own answer, and corroborating com- plainant's case, his testimony on the oral examination and cross examination is preferable to his answer.^^^ Since said statute, the defendant's answer on oath, respon- sive to the bill, is to be regarded as of the same force only which it would have were it the defendant's deposition as a witness.! ^' Admissions in Answer. — An answer in chancery without oath is but a pleading and of no effect as mere evidence. So far as it admits the case made by the bill it relieves the com- plainant from proof. So far as it controverts that case, it puts the complainant to his proof. But so far as it alleges any new matter of avoidance or any matter, the burden of proving which would naturally rest upon the defendant, it is of no effect without proof. ^ ^ ' An answer called for on oath is evidence so far as it is responsive to the bill but no further, until it is overcome by evidence.12 8 12' 2Comp. L. 1871, ? 5967. 12« Roberts v. Miles, 12 Mich. 297. IS? Millard v. Ramsdell, Harr. Ch. 373; Schwarz v. Wendell, Walk. Ch. 267; Atty. Gen. v. O. Co. Bank, lb. 90 ; Van Dyke v. Davis, 2 Mich. 144; Hunt V. Thorn, lb. 213 ; Mandeville v. Comstock, 9 Id. 536 ; Morris v. Hoyt, 11 IcL 9; Roberts v. Miles, 12 Id. 297; Hart v. Carpenter, 36 Id. 402; Robinson v. Cromelein, 15 Id. 316; Hubbell v. Grant, 39 Id. 641. ; 12 8 Hart V. Carpenter, supra; Matteson v, Morris, 40 Mich, 56 ; Roberts v. Miles, supra. ANSWEfiS. 85 Since the passage of the statute making a party a witness, his sworn answer, so far as responsive, has the same force as though he were a sworn witness.^^* Nothing will be regarded as admitted by the answer unless expressly admitted, and the complainant must prove so much of his case as the answer fails to admit. ^ ^ " But he cannot use one part and exclude other parts relat- ing to the same subject that would be responsive to the bill had the answer been under oath. ' ^ ^ The defense of one defendant, who answers and denies the allegations in the bill, enures to the benefit of the other defendants depending upon the same grounds, even though the bill is taken as confessed by them.^ ^ ^ Affirmative matters of defense set up in the answer must be proven.i^' Where a bill charged on information and belief a transac- tion as being fraudulent, and the answer directly denies it, the complainant has the burden of showing it to be so by indepen- dent eYiAence.^^* A copy of a deed on which a defendant basis a claim is not made evidence of its contents by attaching it to the answer, i * ^ Whatever is responsive to the bill is evidence as well for, as against the defendant.i^^ Denial of fraud by a defendant is. not conclusive upon the court, where facts irresistibly lead the mind to a different con- clusion.13' ' ^ ' Roberts v. Miles, supra. "0 Morris v. Morris, 5 Mich. 171; Hardwick v. Bassett, 25 Id. 149; Shook V. Proctor, 27 Id. 349, 377. Certain admissions construed : White v. Smith, 37 Id. 291. "1 Durfee v. McClurg, 6 Mich. 223. ■1^" Buchoz V. Lecour, 9 Mich. 234; McCabe v. Farnsworth, 27 Id. 64. 1" Hart V. Carpenter, 36 Mich. 402. »" DarUng v. Hurst, 39 Mich. 765 ; HiU v. Bowman, 35 Id. 191 ; Allen v. Antisdale, 38 Id. 229. "= Shepard v. Shepard, 36 Mich. 173. 1" Schwarz v. Wendell, Walk. Ch. 267. »" How V. Camp, Walk. Ch. 427. 80 ANSWERS. Where an answer ratifying an agreement is made by the solicitor of a defendant without authority it cannot be made the basis of a decree ratifying such agreement.^ ** We will now proceed to consider the practice in relation to answers in special cases. Answer by Attorney. — An answer by an attorney in fact will, in some cases, be allowed to be put in, as where the defendant has gone, or is resident abroad, and has given a general power to defend suits.^*" Answer of an Infant. — Where an infant is defendant, a guar- dian ad litem must be appointed for him, and by whom an answer must be put in. The mode of procuring the appoint- ment of such guardian has been pointed out. The general course of the guardian is to put in a general answer submitting the rights of the infant to the court. But he is bound to ascertain what are the rights of the infant, and to put in a special answci- where the facts render it advis- able to inform the court. A Court of Chancery has special supervisory power over the persons and property of infants, and it is its duty to see that the rights of an infant are not prejudiced by the answer of his guardian. ^ * " Where an oath is necessary it must be the oath of the guardian. The answer of an infant by his guardian is con- sidered a pleading merely. The complainant is bound to prove his case by clear and full evidence, regardless of the answer.i*^ A guardian ad litem of an infant defendant should not join in an answer with other defendants.^*^ "8 Carrell v. Potter, 23 Mich. 377. '89 1 Barb.. Ch. Pr. 148 ; Story's Eq. PI. § 875, Cooper Eq. PI. 326, 327 ; 1 Dan. Ch. Pr. XVII, ? 2, p. 734; 10 Vesey, 441 ; 1 Hoff. Ch. Pr. 235 140 Weatbrook v. Comstock, Walk. Ch. 314; Story's Eq. PI., g 871. 1*1 Thayer v. Lane, Walk. Ch. 200; Chandler v. McKinney, 6 Mich. 217 ; Smith V. Smith, 13 Id. 258 ; Ballantine v. Clark, 38 Id. 395 ; Mills v. Dennis, 3 Johns. Ch. 367 ; Stephenson v. Stephenson. 6 Paige, 353. i4s Wood V. Truax, 39 Mich. 628. ANSWEES. 87 Answer of a Married Woman. — Under the statutes of Mich, igan, permitting a married woman to sue and be sued in mat- ters relating to her sole property, her answer must be put in as though she were sole.' ** But ordinarily their husbands must be joined with them as defendants in the suit; and their answer must be joint. — {See Exceptions as stated in 1 Barb. Oh. Prac. Vol. 1 150-152.] As a general rule she cannot answer separately when her husband is joined, or ought to be, as defendant without an order of Court. Answer of an Idiot, Zmnatic, or Insane Persons. — The answer of this class of incompetents is similar to that of an infant, and should be sworn to by their guardian in the same manner as the answer of an infant is verified by his guardian ad litem.^ ** [ySVe ante, p. 86.] If they have no guardian, or if the disability occurs after commenoeraent of suit, the Court may appoint one.^*' Superannuaied Persons. — On proof of imbecility, they may answer by guardian.*** Answer of a Foreign^. — In the case of a foreigner not suffi- ciently versed in the English language to answer in that tongue, an order of course must be obtained upon motion for an interpreter, and the answer being engrossed in the foreign language, a translation must be made by the interpreter and annexed. The foreigner must be sworn to his answer, in order to which the interpreter attending is previously sworn to interpret truly, and convey to the defendant the language of the oath, at the same time he swears to the translation as true to the best of his ability ; and the jurat is adapted thereto.**' »" 2 Comp. L. 1871, | 4805 ; Story's Eq. PI., ? 71 ; Cooper Eq. PI, 30, 31 ; Calvert on Parties, Chap. 3, § 21, p, 266 ; Mitf. Eq. PI. 104, 105 ; 1 Barb. Cb Pr., 150, 151 ; 1 Hofr. Ch. Pr. 229. 1" 1 Barb. Ch. Pr. 154 ; 2 Comp. L. 1871, ? 4822 ; Story's Eq. PI. ? 871. i« 2 Comp L. 1871, I 5844. »«« Matter of Barker, 2 Johns. Ch. 235; Markle v. Markle, 4 Id. 168. r«' 1 Barb. Ch. Pr. 154-155; 1 Danl. Ch. Pr. 747 ; 1. Ho6f. Ch. Pr. 236. 88 Answers. » When the answer is taken abroad, in a foreign language, the Court will order it to be interpreted by a sworn interpre- ter, and the translation to be filed with the original. Answer of a Deaf and Dumb Person.^— The same course of proceeding seems proper when the defendant is deaf and dumb. Answer of a Jew. — A Jew is sworn to his answer on the Pentateuch, and takes the oath with his hat on.(a) Answer of a Blind Person. — Where a defendant is blind, some other person must swear that he has truly, distinctly and audibly read over the contents of the answer to the defendant. The defendant must also swear to the answer.i*^ Answer of an Illiterate Person. — Where an answer is put in by an illiterate person, who can neither read nor write, the following jurat should be attached : " This answer was taken, and the above named defendant, C. D., was duly sworn to the same, at , on the day of , the same having been first read over and explained to the said 0. D., who appeared per- fectly to understand the same, and made his mark thereto in my presence." ^** Answer of a Corporation. — The answer of a corporation is usually put in by attorney under the corporate seal and with- out oath.i ^ " But when it desires to obtain a dissolution of an injunction it is necessary to have the answer verified by the oath of some of the corporators or officers of the corporation who are acquainted with the facts.^^' The answer should be signed by the principal officer. Where a suit is instituted against a corporation sole, he must appear and defend and be proceeded against in the same manner as if he were a private individual.^ ^^ (a) 1 Smith's Cli. Pr. 244 ; Story's Eq. PI. ? 874. 1" 1 Barb. Ch. Pr. 155; 1 Danl. Ch. Pr. 746. lis 1 Barb. Ch. Pr. 155. "0 Beecher v. Anderson, 45 Mich. 543 ; 1 Hoff. Ch. Pr. 239. '°i 1 Barb Ch. Pr., 156; Ang. & Ames on Corp. §665; Brumley v. West- chester Co., 1 Johns. Ch, 366 ; Fulton Bank v. N. Y. & S. C. Co., 1 Paige Ch. E. 311; Bronson v. La Crosse R. R. Co., 2 Wall. 302; Beecher v. Anderson, supra. 1" 1 ban. Ch. Pr. 146. Officers and members of a corporation may be made parties to a bill so far as the bUl seeks discovery, though they have no individual interest in the suit, and no relief can be granted against them, the reason being that as the answer of the corpor. ation is not under oath, an answer is required from some per- son capable of making a full discovery as the agents or officers of the corporation.!^^ Joint and Separate Answers. — Two or more persons may join in the same answer, and when their interests are the same and they appear by the same solicitor they should do so, unless some good reason exists to the contrary.i^* Answer to Amended Bill. — In answering an amended bill the defendant, if he has answered the original bill, should answer only to the amended matter. Amendment of Answer. — While it is in the discretion of the Court to permit the defendant to amend his answer when it will promote the ends of justice and not result in injury to complainant, yet such leave is seldom granted unless the neces- sity is clearly made out and even then it is generally confined to a clear case of mistake as to matter of fact bid not of law.^^ ' Matters of Form. — In mere matters of form, or mistake of dates or verbal inaccuracies. Courts of Equity are very indul- gent. Where, however, the character of the defense is sought to be entirely changed by an amended answer on the ground that the defendant did not mean to be understood to state what he had stated, leave was denied. But where the defendant had 158 1 Dan. Ch. Pr. 145 and note 2 ; Story's Eq. PI., | 235; Angell & Ames on Corp. ?? 674, 675 and note ; Many v. Beekman, 9 Paige, 188 ; Cook v. Detroit & M. R. R. Co., 45 Mich. 453. 2 Comp, L. 1871, ?§ 6580-6583; Laws of 1879, p. 194. See Appendix' for proceedings against corporations in chancery. >" 1 Barb. Ch. Pr. 158. In the U. S. Court where same solicitor files separate answers for separate defendants, costs only allowed for one answer. — U. S. Eq. Rule 62. 155 1 Barb. Ch. Pr., 164; Smith v. Babeock, 3 Sumn. 583; Story's Eq. PI. ?758; U. S. Eq. Rule 60. 12 90 ANSWERS. set forth his defense defectively and with obscurity, an amend- ment was allowed, i ^ » An amendment will not be allowed for the purpose of enabling the defendant to set up the defense of usury unless he pays or offers to pay the money loaned, with legal interest, nor will he be permitted to set up the statute of limitations if he neglected to do so in the first instance.^ ^^ Where leave is given to amend an answer, a new answer with the amendments added, must be made, filed and copy served, or the original answer be withdrawn by leave of the Court and the amendments added, or the amendments must refer to the portions of the answer on file, specifying their nature and application. ^ ' * Amendments in the form of afiBdavits without referring to the answer are irregular, and a motion to dissolve an injunc- tion will not be heard on them. ^ ^ ' Supplemental Answer. — In modern times the practice has been to file a supplemental answer instead of a separate amend- ment where necessary to correct any error, but the Court must be clearly satisfied that justice requires it. In making the application, therefore, the defendant must state specifically what he wishes to put on record, that the Court may pass upon it. The matter must be new and not contradictory of the statements in the first answer, and a suffi- cient reason must be given for its omission in the original answer.'^" 15 8 1 Barb. Ch. Pr. 164; Graves v. Niles, Harr. Ch. 332; Emerson v. .\twater, 12 Mich. 314. 1" IBarb. Ch. Pr. 164. See U. S. Eq. Rule 60. "8 Story's Eq. PI. §§ 806 to 906 {full discussion); Mason v. Detroit City Bank, Harr.Ch. 222. 15' Mason v. Detroit City Bank, supra. '60 Graves v. Niles, Harr. Ch. 332; 1 Barb. Ch. Pr. 166; 1 Danl. Ch. Pr. Chap. 17, I 6; Taylor v. Obee, 3 Price 83; Curling v. Townshend, 19 Ves. 628 ; Hendricks v. Decker, 35 Barb. 298; Dias v. Merle, 4 Paige, 2-59; Williams v. Gibbs, 20 How. U. S, 535 ; Suydam v. Truesdale, 6 McLean, 459. Note. — As to practise in U. S. Courts as to answers, see U. S. Eq. Rule 60. 91 DISCLAIMEES. The application for leave to amend or file a supplemental answer, when granted, is generally upon terms. Of Tailing Answers Off the File. — In case any irregularity has occurred either in the frame or form of the answer, the com- plainant may take advantage of such irregularity by moving to take the answer off the file. The motion in such case should be to take "a certain paper writing purporting to be the answer," etc. ^ * ^ SECTION VI. DISCLAIMEE. A disclaimer is a renunciation under oath by the defendant of all right to the subject matter claimed in complainant's bill. Though in substance distinct from an answer, it is in point of ^orm an answer, and is put in and filed in the same way. It must be signed by the defendant. The defendant may answer to one part of the bill and disclaim as to the other. A defendant cannot, by a disclaimer, deprive the complain- ant of the right of requiring a fall answer from him unless it is evident that the defendant ought not after such disclaimer to be retained as a party to the suit. A disclaimer must be full and explicit in all respects, and be accompanied by an answer denying the facts deemed neces- sary to be denied. 1 ^ ^ Generally speaking, a mere disclaimer will not be deemed sufficient except when the bill simply alleges that the defend- 1" 1 Barb. Ch. Pr. 168. "2 1 Barb. Ch. Pr. 171; Story's Eq. PI. ^ 838; Blo^Igett v. Dwight, 38 Mich. 596 ; Ellison v. Kittredge, 45 Id. ; and see Curtis v. Goodenow, 24 Mich. 18 ; In quo warranto : see Larke v. Crawfords, 28 Mich. 88. 92 JOINDEE 0¥ DEFENSES. ant claims an interest in the property in dispute, for if he claims none, that is a sufficient answer to the allegation.!^' If the disclaimer and answer are inconsistent, the latter will prevail.!^* If a defendant puts in a disclaimer, and afterwards dis- covers that he had an interest which he was ignorant of at the time, the Court will permit him to make his claim ; but the showing must be a strong one. ' ^ ' If the defendant disclaims, and it appears that the bill was exhibited for vexation only, the bill will be dismissed with costs. But if the plaintiff had probable cause to exhibit his bill against the defendant, and all claiming under him since the bill was exhibited, he may have a decree without costs. When the disclaimer is to the whole bill, the complainant should not file a replication. If he does, the defendant may have costs for the vexation. SECTION VII. JOINDER OF SEVERAL DEFENSES. It is a general rule that all or any of the customary modes of defense may be joined, provided that each relates to a sep- arate and distinct part of the bill, and are not inconsistent.**^ A defendant may demur to one part of the bill, plead to another, and disclaim as to another. He may also put in separate demurrers and separate pleas to separate and distinct .parts of the bill for separate and distinct causes. But each >»» Comstock V. Comstock, 24 Mich. 39; Story's Eq. PI. § 838. i«* Mitf. onPl. 173. "5 Story.'s Eq. PI. ? 842. i«« Mitf. PI. 258 ; Schneider v. Schultz, 4 Sandf. 664, 680; 1 Dan. Ch. Pr., Chap. XVIII, p. 787, 788; 1 Barb. Ch. Pr., Chap. VI, g VII. JOINDER OF DEFENSES. 93 must be complete in itself.^*^ A defendant cannot plead to the part whicli he has demurred to ; neither can he answer to any part to which he has either demurred or pleaded, for the demurrer demands the judgment of the Court whether he shall make any answer ; and the plea whether he shall make any other answer than what is contained in the plea.'*' Keither can defendant by answer claim what his disclaimer denies. A plea or answer will therefore overrule a demurrer, and an answer a plea. If a disclaimer and answer are inconsistent, the answer will prevail over the disclaimer. ' * ^ Where a defendant adopts different modes of defense, each must be applicable to the distinct part of the bill referred to, not only in words, but in substance. And if a defense, though in words applicable to a part of a bill only, should on its face be applicable to the whole bill, it will be bad, and cannot stand with distinct defenses to other parts of the bill.' ' " Where a demurrer in connection with a plea or answer, or either of them, has been put in, the demurrer and plea, if there be one, should be noticed for argument. But the complainant should not amend his bill or except to the answer for insuffi- ciency before they have been disposed of, otherwise their validity will be admitted. Where a partial demurrer has been allowed, the bill should be amended. '''i 18' Baldwin V. U. S. Telegraph Co., 54 Barb. 505; Swift & Kingsley, 24 Id. 541. I e 9 Clark v. Phelps, 6 Johns. Ch. 214. »" Mitf. Eq. PI. 258. "0 Davison v. Schermerhom, 1 Barb. 480 ; Spencer v. Babcock, 22 Id. 320 1" Mitf. PI. 256. CHAPTEE X. PEOCEEDINGS ON THE PART OF THE COMPLAINANT PEEVIOUS TO EEPLTme. Section 1. Excepting to Answer. 2. Amending Bill of Complaint. 3. Dismissing Bill by Complainant. 4. Motion for Production and Inspection of Deeds, Etc. 6. Motion for the Payment of Money into Court. SECTION I. EXCEPTING TO ANSWER. Exceptions to an answer are of two kinds — ^for insuffi- ciency — and for scandal and impertinence. The former lie where the answer does not sufficiently respond to the allega- tions and charges in the bill, the latter where the answer con- tains scandalous or impertinent matter, i JExceptions for Inrnffidency. — Exceptions for insufficiency can only be sustained where some material allegation, charge or interrogatory in the bill is not fully answered. They will not lie to the answers of corporations, nor where the oath of defendant is waived, because such answers are not evidence. Neither will they lie to an answer of an infant.^ Exceptions to an answer will not prevent the dissolution of an injunction or the discharge of a we exeai.^ 1 1 Barb. Ch. Pr. 176; 1 Dan. Ch. Pr. Chap. XVII, J IV, 758. Note 7 and cases. » Ch. Rule 18 ; 1 Barb. Ch. Pr. 176. 1 Ch. Rule 17. See U. S. Eq. Rules 61 to ti6 inc). for practice in U. S. Courts. 94 EXCEPTIONS TO ANSWER. 95 [Under the statutes of Michigan making parties to suits general witnesses, the cumbersome practice of excepting to an answer for insufficiency has been practically abandoned, and is rarely resorted to. The student is referred to Chancery Eules 27 to 40 inclusive, for the practice in Michigan ; also to Chap- ter VII, Vol. I, Barb. Ch. Pr.J Exceptiom for Scandal and ImpeHinence. — Scandal consists in the allegation of anything unbecoming the dignity of the Court, or is contrary to good manners, or which charges some person with an offense unnecessary to be shown in the cause [Ante, p. 27.] Statements in an answer which are neither called for by the bill, nor material to the defense with reference to the order or decree which may be made on the bill, are impertinent.* A good test as to what is impertinent, is to see whether the subject matter of the allegation could be put in issue, or be given in evidence between the parties.^ Therefore any matter in the answer which is responsive to the bill is not impertinent. Exceptions for impertinence or scandal must point out the objectionable passage with clearness, and may be taken where the answer is without oath. The practice with reference to exceptions to scandalous and impertinent matter is the same as that for insufficiency.^ * 1 Barb. Ch. Pr. Chap. VII, g z, 203. 5 Woods V. Morrell, 1 Johns. Ch. 103; Ch. Rule 18. • Ch. Rules 30, 31. For practice in U. S. Courts, see Eq. Rule 27, yti AMENDING BILL OF COMPLAINT. SECTION II. AMENDING BILL OF COMPLAINT. Amendments being regarded with reference only to the furtherance of justice they are, as a general rule, in the discre- tion of the Court, and are always allowed with great liberality until the proofs are closed, except where the bill is sworn to, in which case they are allowed with caution. The amend- ments must have reference to matters existing before the com- mencement of the suit. Matter which has occurred since then must be brought before the Court by supplemental bill.'' An amendment as to facts known to complainant at the time of filing the bill will not be permitted unless some valid excuse is given for the omission ; and it must be done at the earliest opportunity in order to obtain the aid of the Court.' The applicatioi} should be by petition containing a full statement of facts proposed to be incorporated in the amended bill.9 Amendments to a bill are of two sorts — those which relate to parties, and those which affect the substance of the case. In respect to parties, courts of equity are more liberal than as to other amendments. ' 1 Hoff. Ch. Pr., 284; 1 Barb, Ch. Pr.206, 207 ; Story's Eq. Pl.JJ 332, 352 ; Cooper Eq. PI. 333. 8 1 Barb; Ch. Pr. 209; Bank of Mich. v. Niles, Walk. Ch. 398; Hammond V. Place, Harr. Ch. 438 ; Whitmarsh v. Campbell, 2 Paige, 67. ' Hammond v. Place, supra. Note. — In the U. S. Court complainant may amend his bill of course in any matters whatsoever before a copy has been taken out of the Clerk's office; and in any minor matters afterwards, such as filling blanks, correcting errors of dates, inisnomer of parties, misdescription of premises, and generally in matters of form. But if an amendment is made in a material point after such copy is so taken, and before answer, plea, etc., defendant will be entitled to costs with copy of the amendments. — 17. S, Eq. Rule 28. AMENDING BILL OF COMPLAINT. 97 It may be said generally that where a bill does not contain such material facts, or make aU such persons parties, as are necessary to enable the Court to do complete justice between the parties, the complainant, under the rules, will be permitted to make all proper amendments. ** But a complainant cannot by amendment introduce matter which would constitute a new bill.^^ Nor will the Court allow the heir to be substituted by way of amendment to the bill ia place of the administrator. ^ ^ Amendments of Course : Special Injunction Bills : See Rule 21. — 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 may also amend of course after answer, at any time before he replies thereto until the time for replying expires, and without costs, if a new or further answer is not thereby rendered necessary. But if such amendment requires a new or 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 must be verified by oath, as the bill is required to be verified.' * But no amendment of an injunction bill shall be allowed without a special order of the Court, and upoij due notice to the adverse party if he has appeared in the suit.' * Where no answer has been put in to an injunction bill, an amendment will be granted so as to waive an answer under oath.i5 10 1 Barb. Ch. Pr. 206 ; Story's Eq. PI. § 883. >i 1 Barb. Ch. Pr. 207, 220; 1 Dan. Ch. Pr. Chap. VI, § 8, 425, note 5 and cases cited. " House V. Dexter, 9 Mich. 246 ; Lyon v. Tallmadge, 1 Johns. Ch. 184. i» Briggs V. Briggs, 20 Mich. 34 ; Green v. Green, 26 Id. 437. 1* Ch. Rule 21. 15 Bronson v. Green, Walk. Ch. 486. 13 98 AMENDING BILL OF COMPLAINT. Amendments of course may be made without entering any rule or order for that purpose ; but the Eegister cannot per- mit any amendments to be made unless the same appear to be duly authorized. 1* In every case of an amendment of course, the complainant's solicitor must either file a new engrossment of the bill with the Eegister where the original bill is filed, or furnish him with an engrossed copy of the amendments containing the proper refer- ences to the folios and line in the original bill on file where such amendments are to be inserted or made. But no amend- ment shall be considered as made until the same is served on the adverse party if he has appeared in the cause, i* The foregoing rule has no application to amendments at the hearing. 1*^ When a bill is amended merely by inserting the name of a new defendant after the original defendant has answered, no further answer is necessary from the latter.' "> Amendments after Demurrer. — If the defendant demurs to the bill for want of parties, or for any other defect which does not go to the equity of the whole bill, the complainant may amend of course 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. ■ * If a plea or demurrer to the bill be overruled, the com- plainant may, within ten days thereafter, amend his bill of course and without costs. * * I. „« uo amendments of course of injunction bills will be allowed under this or the preceding rule, nor any amendments which are inconsistent with the original sworn biU.i^ 11 Ch. Rule 21. i« Goodenow v. Curtis, 18 Mich. 298. 1' Salisbury v. Miller, 14 Mich. 160. 18 Ch. Rule 22. i»Ch. Rule 23. AMENDING BILL OF COMPLAINT. i)d It is usual on allowing a demurrer which the Court sees on the argument may be obviated by amendment, to give leave to amend on payment of costs. But when the Court on the argu- ment cannot see from the facts before it how the objection can be removed, the complainant must apply for leave to amend by petition, setting forth the fects sought to be incorporated in the bill.^"' Amendments after Beplication. — ^After replication if the com- plainant desires to amend his bUl, a special application should be made to the Court with a full statement of the facts proposed to be incorporated iu the amended biU, their materiality, and the cause of the delay. But leave should be first obtained to withdraw the replication except as to informal matters and as to parties.''! But the order should provide that the withdrawal is to be without prejudice to such evidence. ^^ At tfie Searing. — The right to grant amendments at the hearing in the court where the cause is first heard, is much broader than in the Appellate Court. In the former it is gen- erally more a question of terms than of power, if the amend- ment is germane to the controversy, and will promote a more complete result.^* While the question of allowing a bill to be amended at the final hearing is a matter of discretion, yet if the change con- '" Bank of Mich. v. Niles, Walk. Ch. 398. Note — In the U. S. Court the complainant may, after answer, plea, or demur- rer, but before replication, obtain an order, without notice, to amend his bill on or before the next succeeding rule day on or without payment of costs as the Judge may direct.— K S. Eq. Rule 29. " 1 Barb. Ch. Pr. 214 ; 1 Hoff. Ch. Pr. 286, 287 ; Brown v. Ricketts, 2 Johns. Ch. 426. "2 Hammond v. Place, Harr. Ch. 438 ; 1 Dan. Ch. Pr. Chap. XXI, 834. Note. — In the U. S. Court, after replication is filed, the bill cannot be amended except upon special order of the Judge upon motion and notice ; and upon show- mg by affidavit that the same is not made for delay, and could not have been made sooner.— K S. Eq. Rules 20 and 29. Where the amendment to the bill is made after answer, the defendant must put in a new or supplemental answer. — U. S. Eq. Rule 46. 2 8 Slater v. Breese, 36 Mich. 89 ; Walker v. Armstrong, 8 De G. M. & G. 531; Walker v. Armstrong, 39 Eng. L. & E. 450; 1 Dan. Ch. Pr. Chap, vi, 418. 100 AMENDING BILL OP COMPLAINT. templates the introduction of a new controversy, on general principles , it will be denied. In some peculiar cases the Court will deviate from the gen- eral rule and allow the complainant, on fair and equitable terms, to revise his bill and give it a new hearing.^* A bill for specific performance is sometimes permitted to be converted into a biU to rescind when it is manifest, from the evidence, that such should have been the relief prayed for. 2 5 In Brew v. Beard,'^^ an amendment to bring new transac- tions into a partnership accounting was allowed. And in The Tremole Patent,'^'' an amendment was allowed after decree, which changed the character of the bill from one relying~on a patent, to one based on a re-issue. The limit to this discretion is that the amendments must not be allowed to prejudice the substantial rights of the defendant. A clear ground for refusing an amendment at the hearing is where the case, after amendment, would be defective on the proofs, but may be dismissed without prejudice.^' Where the amendment sought would transfer the cause to a different head of equity, and the court below refuses permis- sion, and dismisses the bill, without prejudice, the Appellate Court will decline to disturb the result, unless, in view of all the circumstances, the impropriety of the refusal is con- spicuous.^' Where, since the closing of proofs, evidence of material facts has come to the knowledge of the complainant, it is dis- cretionary with the Court to allow an amendment, provided it 21 Munch V. Shabel, 37 Mich. 166; Church v. Holcomb, 45 Id. 29; Liv- ingston v. Hayes, 43 Id. 129; Tremole Patent, 23 Wall. 518. 2 5 Hewitt V. Adams, 50 Maine 271; Whelan v. Sullivan, 102 Mass. 204; Drew V. Beard, 107 Id. 64. 2 8 107 Mass. 64; Darlington's Appeal, 86 Pa. St. 512. " 23 Wall. 518. 2 8 Curtis V. Goodenow, 24 Mich. 18; Harris v. Dietrich, 27 Id. 366; Hess V. Final, 32 Id. 515 ; Munch v. Shabel, 37 Mich. 166. 2» Livingston v. Hayes, 43 Mich. 129; Hewitt v. Dement, 57 111. 600. AMENDING BILL OF COMPLAINT. 101 does not aflfect the issue or prejudice the defendant.^" And ■when complainant has stated his case defectively, and defend- ant has only claimed the benefit of a demurrer by his answer, and at the hearing the proofe show a case for equitable relief, the Court will allow the bill to be amended.* i Where objection to want of parties is not seasonably made, it may be remedied by amendment made at the hearing.* ^ Amendments to a bill to meet matters set up in the answer may be allowed at, or even after a hearing on pleading and proofe.** It is within the discretion of the Court, after a cause has been set down for hearing, on bill, answer and replication, to permit the bill to be amended, and the cause to be opened for proofe on cause shown, but the showing should point out the facts sought to be proven.** If, however, after the amendment, the case will be defective on the proofs, it will not be allowed, (a) A demurrer to an amended bill is a nullity, unless it is con- fined to the amendment.*® Ajler Appeal. — Amendments cannot be made in the Supreme Court on appeal, as it has no original equity jurisdic- tion. But in a proper case there may be a remand to the Cir- cuit Court, with leave to amend the bill.*^ Amendments, Sow Made. — Upon an amendment of course, a new copy of a bill as amended, or a copy of the amendments, referring to the folios and lines in the original bill, where »" 1 Barb Ch. Pr. 214; Briggs v. Briggs, 20 Mich. 34 ; Palmer v. Rich, 12 Id. 415 ; Goodenow v. Curtis, 18 Id. 298 ; Thomas v. Gain, 35 Id. 155. "■ Gorham v. Wing, 10 Mich. 486 ; Babcock v. Twist, 19 Id. 516. " Palmer v. Rich, and Thomas v. Gain, supra. "> Munch V. Shabel, 37 Mich. 167. " Briggs V. Briggs, 20 Mich. 34 ; Slater v. Breese, 36 Id. 78. (a) Church v. Holcomb, 45 Mich. 29. »» Munch V. Shabel, 37 Mich. 166. »« Sears v. Schwarz, 1 Doug. 504; Bank of Mich. v. Niles, Walk. Ch. 398 ; Bailey v.De Graff, 2 Doug. 169; Wright v. Dudley, 8 Mich. 115; House v. Dexter, 9 Id. 246 ; Mich. Ins. Co. v. Brown, 11 Id. 265 ; Palmer v. Rich, 12 Id. 414 ; Moran v. Palmer, 13 Id. 367 ; Verplank v. Hall, 21 Mich. 469 ; Babcock V. Twist, 19 Id. 516; Shoemaker v. Gardner, lb. 96. 102 AMENDnsfG BILL OF COMPLAINT. sucli amendments are to be made, must be filed with the regis- ter, and served on the adverse party if he has appeared.^'' Where amendments are made in pursuance of an order, the same course will be pursued, and a copy served on the defend- ant, with a tender of the costs if ordered. Amendments to a bill for divorce are required to be veri- fi.ed in the same manner as required in the original bill. But where unwarranted testimony was taken under objection, the Court will not permit the bill to be amended so as to make a case to meet such evidence.^* Effect of Amending Bill. — In general, an amendment before answer puts an end to all process of contempt which may have been issued for want of an answer. Care should be taken that an order allowing an amendment should provide that it be made without prejudice to process which may have issued.*^ Where plaintiff amends his bill by adding new parties after the defendant's default, for want of appearance, has been entered, he thereby waives the default.*" Where exceptions to the answer are pending at the time of the amendment they will be considered as waived. The effect of amending a pleading by adding new parties is to strike out the issue that has been joined, and it is the right of the defendant, who has already answered, to make a new defense by demurrer, plea, or answer.* ^ »' Ch. Rule 21. «« Green v. Green, 26 Mich 437. " 1 Barb. Ch. Pr. 223, 224 ; 1 HoflF. Ch. Pr. 298 and note; 4» Scudder v. Voorhies, 1 Barb. 55. *i Scudder v. Voorhies, 1 Barb. 55; 1 Barb. Ch. Pr. 225; 1 Dan. Ch. Pr. Chap. VI, I 8, 423, 425, 426 ; Mitf. Eq. PI. 207-290. DISMISSING BILL BY COMPLAINANT. 103 SECTION III. DISMISSING BILL BY COMPLAINANT, A complainant may move to dismiss Ms own bill with costs as a matter of course at any time before an interlocutory or final decree. After such decree, however, the Court will not permit it unless upon consent, for all parties are interested in a decree and have a right to use it as they may be advised.* ^ But in the case of a creditor's bill, consent is not sufficient. There may be a rehearing or appeal.*^ "Where a defendant by his own act has rendered it impossi- ble for the complainant to obtain the object of his suit, the Court will permit the bill to be dismissed without costs.** Executors suing in good faith, or trustees filing a bill for the settlement of a question without misconduct will be per- mitted to discontinue without costs. K a bill has been filed without the consent of complainant, he may have it dismissed with costs to be paid by the solicitor, but the party should apply promptly after discovering the fact.* 5 It has been held that one of several complainants may have the bill dismissed as to himself upon consent of the defendant, and without notice to or consent of his co-complainant.*^ As a general rule, the voluntary dismissal of a bill by the complainant will not prevent a new bill from being filed, unless it be after the cause has been set down for hearing. It cannot be pleaded in bar unless it is a dismissal by the Court 48-1 Barb. Ch. Pr. 228 ; Seymour v. Jerome, Walk. Ch. 356. *' Lashley v. Hogg, 11 Ves. 602. «* 1 Barb. Ch. Pr. 226 ; Knox v. Brown, 2 Bro. C. C. 186 . *B 1 Barb. Ch. Pr. 227 ; 1 HoflF. Ch. Pr. 330 ; Wright v. Castle, 3 Merrivale, 12. *' Langdale v. Langdale, 13 Ves. 167 ; 1 Hoff. Ch. Pr. 330. 104 PEODTJCTION OF DEEDS, ETC. upon the hearing — except when it is dismissed vMhovt prejtir dice.* ' But a dismissal of an original bill on motion of the complainant is a good bar to a bill of revivor and supplement, or either, founded upon it.** Conditioned Dismissal. — Where leave is giveri to dismiss oil payment of costs, the defendant may, until the condition is complied with, consider it as in or out of court at his discre- tion.* » Parties as to whom a bill has been dismissed by complainant after decree, can only be brought back by the usual process.'" Leave, on dismissing a bill, to sue again in equity, should not be granted without some equitable reason. When the amount is trifling, and there is a legal remedy, it should be denied. '1 SECTION IV. MOTION EOE PRODUCTION AND INSPECTION OF PAPERS, ETC. General Principles. — ^Previous to the final hearing of a cause the Court only orders the production of books and papers upon two principles.; security pending the litigation, and dis- covery or inspection for the purpose of aiding the conduct of the suit.'^ If the complainant has a direct and immediate interest in a deed or document admitted by the answer to be in the posses- 4' Story's Eq. PI. § 793; Mitf. Eq. PI. 238-9; Coop. Eq. PI. 270; 1 Smith's Ch. Pr.p. 333; Beame's PI. in Eq. 210-212; Neaffie v. Neaffie, 7 Johns. Ch. 1. *8 1 Barb. Ch. Pr. 228; 1 Hoff. Ch, Pr. 333. 4 9 Jerome v. Seymour, Walk. Ch. 359 ; 1 Dan. Ch. Pr. Chap. xix. g 1, 793. »» Johnson v. Shepard, 35 Mich. 116. " Gamble v. E. Sag., 43 Mich. 367. » 8 1 Barb. Ch. Pr. 229 ; 3 Greenlf. Ev. ? 295 ; 2 Dan. Ch. Pr. Ch. 42. PEODUCTION OF DEEDS, ETC. 105 sion of the defendant, the Court will, upon motion or petition, grant an order for their production. The motion is special and must be founded on the admission in the answer, and upon evidence of complainant's said interest. An affidavit that the deed is in the possession of the defend- ant is not sufficient ; the admission must be by th6 answer. If the answer admits possession and submits to produce the doc- ument as the Court shall direct, the Court will determine the right of the complainant to inspect them.^^ The form of the motion is that the books, etc., be left with the Eegister or some other officer of the court for the complainant's inspection. To entitle the complainant to an order for the production of documents before the hearing or issue joined, they must be so described in the answer or schedule with reasonable certainty so as to be considered incorporated with the answer by the reference to them. They must be admitted by the answer to be in the defendant's possession or power, and it must appear that the complainant has an interest in the production of the paper called for. A mere general reference to them in the answer or a mere statement of their contents is not sufficient. What is a Sufficient Possession by Defendant. — The possession must be a present one, though it need not be an actual personal possession. If the papers are under the control or power of the defendant the Court will order their production, s* Complainant's Interest in Documents. — As a general rule where the complainant has a common interest in- the instrument with the other party, he is entitled to the production; and this term embraces the interests of landlord and tenant, principal and agent, copartners, trustees, etc. While the complainant is entitled to the production of a deed which sustains his title, he has no right to a deed which gives title to the defendant unless such deed relates to the title of both parties.^* " 1 HoflF. Ch. Pr. 306, 307; 1 Barb. Ch. Pr. 229. " SGreenlf. on Ev.? 296. " 1 Barb. Ch. Pr. 232; 3 Greenlf. Ev. i 298-9. 14 106 PAYMENT OF MONET INTO COXIET. Defendant's Bight to ProAuctUm. — "Wliere there is an instru- ment in the hands of the complainant, which the defendant ■would inspect, the general rule is that he must file a cross bill. But where the defendant swears that he cannot make a full answer without an inspection of a document in the complain- ant's possession, and that such inspection is necessary for his defense, an order will be made that the defendant shall hot be called upon to answer until some fixed time after the instru- ment is produced ; and if not produced within a reasonable time the bill will be dismissed. ^^ Mode of Inspecting Documents. — ^Where a party establishes his right to inspect books in the adverse party's possession, he is entitled to an order of course for inspection with liberty to take copies. The defendant may seal up such parts of the books, etc., as he swears do not relate to the claim of complain- ant. The papers must be delivered into the possession of the proper officer of the court (usually the Eegister), to be exam- ined by the complainant when he chooses. But the defend- ant is entitled to have them restored to him as soon as such inspfection and examination have taken place. ®^ SECTION V. MOTION FOE THE PAYMENT OF MONET INTO COITRT. The general rule as to the payment of money into court is that the complainant must be solely entitled, or have such an interest jointly with others as to entitle him on behalf of him- self and others, to have the fund secured.^' 5« 1 Hoff. Ch. Pr. 208, 209; Story's Eq. PI. ?g 858 to 861, [For full anal- ysis of the cases see note 5 to g 858] ; 3 Greenlf. Ev. \ 303 ; Mitf. Eq. PI. 9, 53, 90; Wigram on Discov. Ill to 146, 346, 365 ; Hare on Discov. 183. " 1 Barb. Ch. Pr., 236; 1 Hoff. Ch. Pr. 306 to 318. 5 8 1 Barb. Ch. Pr. 240; 1 Hoff. Ch. Pr. 318-326; 1 Dan. Ch. Pr. Chap, xl, 1770-1779. PAYMENT OF MONET INTO COTTET. 107 The application may be by special motion or petition. It is usually based on the admission of defendant by answer. The Court will not grant the motion before answer, unless in case of manifest fraud. The Court will, in general, only order the principal sum due from the defendant, and not the interest. The payment neither discharges the trustee, nor alters the rights of the parties inter- ested. ^^ The cases in which the application is most usually made are those of executors and trustees, and vendors and purchasers.*" The order should specify the time when the payment is to be made. All moneys brought into the court for or by any suitor and paid to the Eegister, must be deposited in such banks, or safely kept in such other manner as the Court shall direct.*^ — {_See BiOes 87 and 88.] " 1 Dan. Ch. Pr. Chap, xl, ? 1, 1777, 1778. «» 1 Barb. Ch. Pr. 237 ; 1 Dan. Ch. Pr. Chap, xl, ? 1, 1774. '* As to the care, cttstjdy and investment of money paid into court see 2 Comp. L. 1871, § 5043 to 5053. CHAPTBE XI. PEOCEECINGrS ON THE PART OP THE DEFENDANT PEEVIOUS TO EEPLICATION. Section 1. Motion to Dismiss Bill for Want of Prosecution. 2. Cross Bill. 3. Pun'iNO Complainant to his Election. SECTION I. MOTION TO DISMISS BILL. Under Eule 46 it is provided that in any suit against several defendants, if tlie complainant does not use due diligence in prosecuting sucli suit, any of said defendants may apply to dismiss the bill for want of prosecution and on such applica- tion farther time shall not be allowed to complainant unless on good cause shown for the delay. A bill cannot be dismissed for want of prosecution while a demurrer is pending. But the defendant may expedite the cause by noticing the demurrer for argument.^ The defendant cannot move to dismiss the bill for want of prosecution pending an abatement of the suit by the death, marriage or bankruptcy of a complainant.^ Where a cause is ready for hearing against one defendant, and there is another as to whom the cause is not in readiness, the defendant who has appeared and answered, cannot notice the cause for hearing, but must move to dismiss the bill for want of prosecution, if the complainant fails to expedite it. 1 1 Barb. Ch. Pr. 243; 1 Dan. Ch. Pr. Chap. xix. ? 2, p. 801 : McVickar v. Filer, 24 Mich. 241. « 1 Barb. Ch. Pr. 244 ; 1 Dan. Ch. Pr. Chap. xix. g 3, p. 812, 108 MOTION TO DISMISS BILL. 109 The Court will not grant a final decree until tlie cause is in readiness for a hearing as to all the parties.* Eff'ect of Dismissed. — A bill dismissed for want of prosecu- tion is effectually out of court; but where substantial justice requires it, the Court, on proper showing, will restore the bill. The proper course in such a case is to obtain an order to dis- charge the order dismissing the bill.* Where a suit is dismissed upon hearing on the merits, it is ordinarily, unless dismissed mthout prejudice, a bar to another bill ; but where the dismissal is for defect of form, and not going to the merits, it is no bar to another suit. Where a bill is dismissed for want of prosecution, it oper- ates as a discontinuance of the suit, and does not prevent bringing a new bill.' Practice. — In order to procure a dismissal of the bill for want of prosecution an affidavit should be prepared, stating the exact condition of the proceeding ; a notice should then be served on complainant's solicitor, with a copy of the affi- davit." In order to prevent a dismissal of the bill the complainant must show that he is unable to go on, because some of the defendants have not answered, and that he has used due dili- gence to obtain their answers.'' SECTION II. CEOSS BILL. This is the proper stage of the cause for filing a cross bill? but its consideration will be reserved until the discussion of the different kinds of bills. [_8ee Cross Bills. ' Graham v. Elmore, Harr. Ch. 265 ; Vermillyea v. Odell. 4 Paige, 121. 4 1 Barb. Ch. Pr. 245 ; Jackson v. Pumell, 16 Ves. 204. 6 1 Barb. Ch. Pr. 246 ; Story's Eq. PI. g 793 ; Mitf. Eq. PI. 239-240 ; Beame's PI. in Eq. 210 ; Cooper Eq. PI. 270; Perine v. Dunn, 4 Johns. Ch. 140. « 1 Barb. Ch. Pr. 244. » 1 Barb. Ch. Pr. 244, 245 ; Gully v. Van Bodicoate, 5 Sim. 668. 110 PUTTING COMPLAINANT TO HIS KLECTION. SECTION III. PUTTING COMPLAINANT TO HIS ELECTION. If the complainant is proceeding at law and in equity for the same thing, an order may be obtained compelling him to elect in which court he will proceed.' But not when he is complainant in one suit and defendant in the other, (a) But if the ground relied on for relief in each tribunal is different, and a full remedy cannot be afforded by either upon the ground relied on in the other, he will not be compelled to elect. The motion must be made after the defendant has put in his answer ; and the order is that he elect within a given time after service thereof; and that if he elects to proceed at law, the bill be dismissed.* If the complainant considers that the bill and action are for different matters, and that he ought not to be compelled to elect, he may oppose the motion on that ground, and the Court will examine the pleadings.^ If the party suspend his proceedings at law after filing his bill in this court, he will not be compelled to elect. But if he elects to proceed at law and fails, then the dismissal of his bill will be no bar to his filing a new bill for the same matter. If he proceed in this court, and his bill is dismissed at the hear- ing, he may then proceed at law, and the only course for the » 1 Hoff. Ch. Pr. 342 ; Mitf. Eq. PI. 249 ; 1 Barb. Ch. Pr. 246, 247 ; Webb V. Williams, Walk. Ch. 452; McGunn v. Hanlin, 29 Mich. 480; Thompson V. Howard, 31 Id. 309, and cases cited ; Story's Eq. Jur. g 889 ; 1 Dan. Ch. Pr. Chap, xxii, 961; Cockerell v. Cholmeley, 1 Russ. & Myl. 418; Rogers v. Vos- burgh, 4 Johns. Ch. 84. (a) Botts V. Cozine, 2 Edw. 583. ^ » Coleman v. Cross, 4 B. Mon. 268. PUTTIJSG COMPLAINANT TO HIS ELECTION. Ill defendant is to file a cross bill, and obtain a perpetual injunc- tion against the suit at law.' " When the bill is for discovery only, and no relief prayed, he will not be put to his election, for from the discovery he may be able to proceed at law, when he could not without it.' ' The complainant is entitled to a complete answer before he can be put to his election. '^ A special application to the Court, on notice to the com- plainant's solicitor, must be made, and it must be founded on an affidavit, stating that the two suits were brought for the same purposes, and upon copies of the pleadings in each suit to show their identity.' * i» 1 Hoff. Ch. Pr. 344; Plymouth v. Bladon, 2 Vem. 32. I'- 1 Hoff. Ch, Pr. 344. " Abel V. Cave, 3 B. Mon. 1.59", 1 Hoff. Ch. Pr. 342; 1 Barb. Ch. Pr. 248 i« 1 Hoff. Ch. Pr. 342; Rogers v. Vosburgh, 4 Johns. Ch. 84. CHAPTEB XII. REPLICATION. Nature and Office. — After the defendant has put in his answer, the plaintiff is to judge whether the answer is suffi- cient, and also whether he will amend the bill. If he neither excepts to the answer for insufficiency, nor amends his bill, the usual step is to file a replication. ' A replication is the complainant's reply to the defendant's plea or answer. It is a mere averment of the truth and suffi- ciency of the bill, and a denial of the allegations in the answer. Its office is the production of an issue. ^ If the complainant wishes to prove any fact on the hearing not admitted by the answer, he must file a replication ; for if it is not filed the defendant's answer will be taken as true, although the answer is not under oath,^ and no evidence can be given by complainant to contradict it, because the defend- anthas been deprived of the opportunity of proving the truth of his answer.* Where the answer is such that the burden lies upon com- plainant to overcome it, and he does not reply or introduce proofs, he is entitled to no decree as to any jnatter not admit- ted.5 A replication may be filed as well to a plea as to an answer. [See ante, p. 71.] 1 Story's Eq. PI. g 877. » 1 Barb. Ch. Pr. 249 ; 1 Dan. Ch. Pr., Chap. xxi. 8 . s Ch. Rule 18. * 1 Barb. Ch. Pr. 249. 6 Hardwick v. Bassett, 25 Mich, 149. 112 EEPLlCATION. 113 When a defendant puts in a general disclaimer to the whole bill, the complainant ought not to reply to it.^ Formerly replications were either general or special, but by the present practice the former is suf&cient to put the case at issue, except in special cases. When Cause Deemed at Issue. — Every cause in chancery will be deemed to be at issue on filing a replication, and it shall not be necessary to issue a subpoena to hear judgment, but all causes shall be brought to a hearing under such rules as may be from time to time prescribed.' Under our practice every cause will be deemed at issue on filing a general replication to the answer, and no special rep- lication shall be filed but by leave, on cause shown. If the com- plainant does not reply to the defendant's answer within twenty days after it is deemed to be suf&cient, he will be precluded from replying, and the cause will stand for hearing on biU. and answer, unless further time for replying be granted by the Court upon cause shown ; and either party may notice it for hearing, as soon as it is in readiness for hearing, against the other defend- ants, if any there are.' . A replication to a plea admits its truth, and is the only question to be tried. If established, it is a bar to so much of the bill as it professes to cover.' Form of. — A replication is entitled in the same manner, mutatis mvtandis, as an answer, and commences with a general saving of the advantage of exception, and which is followed by an averment and offer to prove that the matters in the bill are true, certain and sufficient in law to be answered unto ; and that the answer of the defendant is untrue, uncertain and « 1 Barb. Ch. Pr. 249. ' 2Comp. L. 1871, § 5091. Note. — In the U. S. Court, where tlie answer is deemed sufficient, if the general replication be not filed, the bill, on motion of the complainant, will be dismissed, unless the Court, on cause shown, allow a replication to be filed ; Eq. Rule 66. »■ Ch. Rule 45. " Hurlbut V. Britain, Walk. Ch. 454 ; Dubois v. Campau, 37 Mich. 248 ; Dows V. McMichael, 6 Paige, 139. 15 114 BBPLIOATION. insufiBcient to be answered unto ; it then concludes with a gen- eral traverse. A replication need not be signed by the complainant, the signature of the solicitor being sufficient. i° If the complainant amends his bill after answer, he cannot file a replication to the original answer until the time for answering the amended biU expires, (a) Filing Nunc Pro Tunc. — A replication is considered a mere formal 'instrument, and where the omission to file one at the proper time arose from mistake or inadvertence, it will be allowed to be supplied after the cause had been set down for hearing upon bill, answer and proof.* * The effect of filing a replication to a plea is to admit its validity as a bar, if true. [Ante, p. 71.J Withdrawing. — ^Where the necessity for an amendment arises after the filing of the replication, the complainant should make a special application to the Court for leave to withdraw it for the purpose of amendment. The Court must be satisfied of the materiality of the matter of the proposed amendment, and that it could not have been sooner intro- duced.*^ But this practice does not apply to amendments by merely adding new parties after replication.*' If there be an issue of fact which in the opinion of the Court shall render the intervention of a jury necessary or proper, said Court shall, on request of either party, order a jury impaneled for the trial thereof, and the verdict of such jury may be used upon the hearing of the cause.** i» 1 Barb. Ch. Pr. 250. U. S. Eq. Rule 45 prohibits special replications. (a) Richardson v. Richardson, 5 Paige, 58. '1 Story's Eq. PI. ? 881; Cooper Eq. PI. 331, 335; Mitf. Eq. PI. 323; 1 Barb. Ch. Pr. 252 ; 1 Dan. Ch. Pr., Chap, xxi, 834 ; See U. S. Equity Rule 66; Hardwick v. Bassett, 25 Mich. 149; Smith v. West, 3 Johns. Ch. 363. " 1 Dan. Ch. Pr., Chap, xxi, 834; 1 Barb. Ch. Pr. 253. i» 1 Barb. Ch. Pr. 253. "2 Comp. L. 1871, J 5092. CHAPTEE XIII. TESTIMONY. Section 1. Who may be Witnesses. 2. Examination of Witnesses. 1. De Bene Esse. 2. By Circuit Court Commissioner. 3. By Commissioners upon a Commission. 4. Practice and Proceedings before Commis- sioners. The cause being at issue, by the filing of a replication, the parties may proceed to their proofs under the rules of court for the purpose of establishing their respective cases. If no repli- cation is filed the answer is taken as true, and therefore the defendant needs no proofs ; and the complainant not having replied cannot offer any. It is not the purpose to enter upon the subject of evidence any further than to show who may be witnesses, and the several methods of taking their testimony in this court. 1 Testimony in Chancery may always be taken by consent, as well before as after issue of fact is joined. ^ SECTION 1. WHO MAT BE -WITNESSES. Under the statutes of Michigan, all persons, whether parties to the record or interested in the subject matter are, with cer- » 1 Hoff. Ch. Pr. 454; 1 Barb. Ch. Pr. 254. » Woods V. Monroe, 17 Mich. 238; Laws of 1881, p. 244,? 16. 115 116 WHO MAY BE WITNESSES. tain exceptions, made general witnesses in any matter civil or criminal.* Statutory Uxceptions. — Where the suit is prosecuted or defended by the representatives of a deceased person, the opposite party, if examined as a witness on his own behalf, cannot testify as to matters equally within the knowledge of such deceased person.* A husband or wife cannot be examined as a witness for or against each other without their consent, except where either is a party to the record in a sijit where the title to the separate property of either is the subject matter in controversy, or where the title to property derived through either, so called as a wit- ness, is the subject matter in controversy in such suit, in oppo- sition to the claim or interest of the other who is a party to the record. Nor shall either during, or after the marriage, without mutual consent, be examined as to any communication made by one to the other during the marriage. In an action or proceeding by either in consequence of adultery, neither can testify.^ No minister of the gospel or priest can disclose confessions made to him in his professional character, in the course of dis- cipline, etc. ^ No physician or surgeon will be allowed to disclose any information acquired in attending any patient professionally, ' 2 Comp. L. 1871, ? 5966 to 5969; Laws of 1881, p. 335. 4 2 Comp. L. 1871, ? 5968, as amended by the Laws of 1881, p. 335; Dow- ney V. Andrus, 43 Mich. 65, reviewing cases; Campau v. Van Dyke, 15 Id. 371; Kimball V. Kimball, 16 Id. 211; Wright v. Wilson, 17 Id. 192; Mouhon V. Mason, 21 Id. 364; Cook v. Stevenson, 30 Id. 242; Wheeler v. Arnold. lb. 304; Van Wert v. Chidester, 31 Id. 207; Mundy v. Foster, lb. 313; Twiss v. George, 33 Id. 253; Chambers v. Hill 34 Id. 523; Schratz v. Schratz, 35 Id. 485; Jones V. Beeson, 36 Id. 214 ; Harmon v. Dart, 37 Id. 53 ; Ward v. Ward, lb. 253 ; Lee v.Wisner, 38 Id. 82; Howard v. Patrick, lb. 795; Rust v. Bennett, 3!) Id. 521 ; McKeon v. Harvey, 40 Id. 226. 6 2 Comp. L. 1871, § 5969; Snyder v. People, 26 Mich. 106; Herrick v Odell, 29 Id. 47; Mundy v. Foster, 31 Id. 313; Jenne v. Marble, 37 Id. 319 J People v. Marble, 38 Id. 117; Hubbell v. Grant, 39 Id. 641. • 2 Comp. L., 1871, ? 5942. EXAMINATION OF "WITNESSES. IIT and whicli was necessary to enable Mm to prescribe or do any act, etc' But the privilege may be waived, (a) Attorneys, solicitors and counsel are not permitted to dis- close any information obtained in their character of profes- sional advisors.* SECTION .II. EXAMINATION OF WITNESSES. In Michigan witnesses are examined in Chancery either before circuit court commissioners, or by commissioners under a commission issued for that purpose, or in open Court at the hearing of the cause. Commissions to take testimony may be executed either within this State, or in some foreign State or country. Exhibits may be proved viva voce, at the hearing in certain cases. In connection with this subject, for convenience, and for want of space, we will include in this chapter a reference to the powers of circuit court commissioners, and the practice under references to them. And First, As to tKe Examination of Witnesses De Bene Esse.- — There are two piethods of taking the examination of witnesses ' 2 Comp. L. 1871, ? 5943; Briggs v. Briggs, 20 Mich. 34-40; Johnson v. McKee, 27 Id. 471; Campau v. North, 39 Id. 606; Van Deusen v. Newcomer, 40 Id. 90; Grand Rapids & Indiana R. R. Co. v. Martin, 41 Id. 667; Scripps v. Foster, lb. 742; Frazer et al. v. Jennison et al., 42 Id. 206; Edinglon v. Mtl. L. Ins. Co., 67 N. Y. 194; Dilleber v. Home L. Ins. Co.; 69 Id. 256; Horn v. Pullman, 72 Id. 275, 276 ; Allen v. Pub. Adm. 1 Bradford's Sur. Rep. 221. (a) 41 Mich. 742, and 42 Id. 206, supra; Cahen v. Cont. L. Ins. Co. 41 N. Y. Superior Ct. R. 296. * Wadsworth v. Loranger, Harr. Ch. 113; Alderman v. People, 4 Mich. 414-422 ; Hamilton v. People, 29 Id. 173; Hartford Ins. Co. v Reynolds, 36 Id. 602; Weeks on Attorneys, 353, 278, 311. 118 EXAMINATION OF 'WTTNESSES. de bene esse in this court : (1) ; Under an order of Court, upon a special application therefor, and (2) ; By summary proceed- ings under the statute. The former method exists under the general power of the Court, and though a more summary mode is authorized by the statute, the Court has not been deprived of its power.* This method of examination is incidental to every suit brought in this court. The examination of a witness de bene esse takes place where there is danger of losing the testimony of an important witness by death, by reason of old age, i. e., past seventy years old, dangerous illness, where he is about to go abroad, or where he is the only witness to an important fact ; and generally wher- ever the justice of the case requires it.^ " In such cases the Court will permit their depositions to be taken before the cause is at issue ; but tlie rule does not seem to be extended to cases where there is more than one witness to the same fact, unless upon the ground of age or infirmity. Such examination is incidental to every suit brought in this Court. (6) Within What Time to be Had. — The Court will grant an order to a complainant before an answer has been put in, if the necessity of the deposition is shown by affidavit. ^^ It will also be granted before appearance, on the ground of the age or sickness of the witness, if the defendant has been served with a subpoena; but where the defendant has not appeared, he must have notice of such examination.^^ Affidavit in Support of Motion. — ^The application in every instance must be supported by an aflldavit of the facts stating » 1 Barb. Ch. Pr. 270-274; 1 Dan. Ch. Pr. Ch. 22, § 14, p. 932; 1 Hoff. Ch. Pr. 455; 1 Smith Ch. Pr. 506. If 1 Smith Ch. Pr. 508; Story's Eq. PI. 23 307-310; 2 Story's Eq. Jur. U 1513-1516; Cooper Eq. PI. 57 ; Mitf. Eq. PI. 52. (6) 1 Barb. Ch. Pr. 271; 19 Ves. 321. Note.— For practice in U. S. Eq. Court, see Eq. Rule 70. " Fortv. Ragusin, 2 Johns. Ch. 146. i» Tompkins v. Harrison, 6 Mad. 315; 1 Barb. Qi. Pr. 272. EXAMINATION OF WITNESSES. 119 the residence, description, and materiality of the witness. The affidavit should be positive in its terms, and not on infor- mation or belief, (a) Order for. — The order must name the witnesses, and none others can be examined, and a copy must be served on the opposite party. (&) Where Applied for by Defendant. — A defendant cannot obtain an order to examine witnesses de bene esse before he has put in his answer ; but he may obtain an order to examine his own ■ witnesses under the complainant's commission. The witnesses under these orders may be examined in the same manner as in other cases, except that where taken under a commission, the names of the witnesses must be specified. In all cases, notice of the examination must be given to the opposite party. A deposition de bene esse cannot be read on the hearing when the witness is in a condition to be sworn, and the cause of the taking no longer exists.'* Neither can it be' read on the trial of a feigned issue if the witness is present.** By Summary Proceedings Under the Statute. — Any person who expects to be a party to a suit, to be thereafter com- menced in any court of record in this State, may cause the tes- timony of any witness material to him in the prosecution or defense of such suit, to be taken conditionally and perpetu- ated. '^ But such witness can only be examined to the same extent that he would be, were he called as a witness upon the trial of the cause, (c) (a) 1 Dan. Ch. Pr. Chap, xxii, ? 14, p. 9S7 ; Story's Eq. PI. ? 309 ; Rock- well V. Folsom, 4 Johns. Ch. 165. (i) 1 Smith's Ch. Pr. 508 ; 1 Barb. Ch. Pr. 274. i» Emlaw V. Emlaw, 20 Mich. 11; 1 Dan. Ch. Pr. Chap, xxii, 2 14, p. 938, 239; 1 Barb. Ch.Pr. 275. r . » -, r 1* Dunn V. Dunn, 11 Mich. 285. »» 2Comp. L. 1871, § 5907. (c) In the matter of Kipp, 1 Paige, 601. As to taxing costs in such proceed- ings, see Hasbrouck v. Hasbrouck, 5 Hill, 495., 120 CIEOUIT COTJET COMMISSIONEES. The causes emimerated by the statute in civil causes pend- ing in the State are where the witness lives more than thirty miles from the jjlace of trial, or is about to go out of the State, and not to return in time for the trial, or is so sick, infirm, or aged, as to make it probable that he will be unable to attend the trial. ^^ No such deposition can be used if it appears that the reason for taking it no longer exists: Frovided, that if the party producing the deposition can show any sufficient cause then existing for using it, it may be admitted.^ ^ [For the proceedings to take such depositions, see 2 C!omp. L. 1871, §§ 5890 to 5909.] Bills to Perpetuate Testimony. — The uses of these bills will be discussed hereafter. General Powers of Circuit Court Commissioners. — Circuit Court Commissioners, qualified according to law, are author- ized and required to perform all the duties, and to execute every act, power and trust which a Judge of the Circuit Court may perform and execute out of court, according to the rules and practice of such court, and pursuant to the provisions of any statute in all civil cases, except as otherwise provided. 1* Their powers in chancery cases, within their respective counties, are the same as may be properly exercised by a Cir- cuit Judge at chambers, subject to such, restrictions and regu- lations as the Supreme Court may prescribe. ^^ l« 2 Comp. L. 1871, ? 5891; Pickard v. Polhemus, 3 Mich. 185; Campau V. Dewey, 9 Id. 408 ; Eslow v. Mitchell, 26 Id. 500. 1' 2 Comp. L. 1871, ? 5901. Note. — For practice in U. S. Equity Courts regarding the taking of testi- mony, see Equity Rules 67 to 72. 18 Const. Art. VI, § 16; Laws of 1881, p. 242, \ 5; Townsend v. People, 14 Mich. 388 ; Rowe v. Rowe, 28 Mich. 356 ; De Myer v. McGonegal, 32 Id. 120; And see Daniels v. People, 6 Mich. 381; Streeter v. Paton, 7 Id. 341. 1" Ch. Rule 111. As to notice see Boinay v. Coats, 17 Mich. 412. Note. — The provisions of the Compiled Laws relating to Circuit Court Commissioners, being Sections 5567 to 5630, inclusive, are repealed, and a gen- eral Act passed; See Laws 1881, Act 204, p. 241. CIECUIT COTJET OOMMISSIONEES. 121 The general powers conferred by statute aie restricted to the following particulars : 1. No Circuit Court Commissioner shall be empowered to vacate any order or decree of the Circuit Court, or any order made by a Circuit Judge. 2. Nor shall he grant any injunction to stay proceedings at law, unless reasonable notice of the time and place of hear- ing the application therefor shall have been previously given to the adverse party. 3. Nor shall he grant any injunction without such notice, unless, in his opinion, the peculiar exigencies of the case require it for manifest reasons to be shown by affidavit, ^o A commissioner must at the time of his election be an attor- ney and counsellor at law of the Supreme Court. ^^ Neither can he perform an act in any suit or proceeding in which his law partner, if he have one, is in anywise interested. ^ 2 He may be compelled to proceed on an order of reference tendered to him for execution in a foreclosure case.^* Powers of Judge at Chambers. — The term " Chambers " in the legal sense, denotes the Judge's private office or place of doing business when not acting as Judge in his court in making orders, etc., not required to be brought before a full court. His power at chambers is that of a Judge out of court in relation to proceedings before his court. 2* Under the old English system. Judges, when sitting in chambers, had the same power and jurisdiction in respect of the business to be brought before them as if they were respect- ively sitting in open court, and might exercise all the powers 20 Ch. Rule 112. 21 Laws of 1881, p. 242,2 3, 2 2 Laws of 1881, p. 243, ? 14; Brown v. Ensworth, Walk. Ch. 463; Heyn V. Farrar, 36 Mich. 258. " Warner v. Randall, 37 Mich. 473. Note. — As to practice in U. S. Eq. Courts regarding proceedings before Masters, see Eq. Rules 73 to 83. ' 2 4 1 Bouv. Law Die. 254; 1 Burr. Law Die. 200. 16 122 CIEOUIT COTJET COMMISSIONERS. and jurisdiction formerly exercised by the Master in Ordi- nary. ^^ His duties were specifically prescribed by Act of Parlia- ment. The subject is discussed at large by Mr. DanieU in the 2d Volume of his Practice, in Chapter XIX., Section 2, page 1322. In Streeter v. Paton, ^ ^ Mr. Justice Manning of the Supreme Court of Michigan, said that it was not very clear what the powers of a Judge of the circuit court at chambers were under our constitution, but that it would appear that they must be either acts done out of court in a cause pending in court, or all judicial acts which the Circuit Judge might be authorized by statute to perform out of court, whether relating to a cause pending in court or not. Our statutes have prescribed many of the duties which the Circuit Judge may perform at chambers, e. g. : To grant writs of supersedeas or prohibition in vacation, on good cause shown ^^ ; To transmit to the clerk in vacation his judgment or decree in any cause^' ; To appoint receivers and referees^' ; To order the issuing of a commission to take testimony and settle interrogatories*"; Confessing judgments'^; To restrain by order the committing of waste pending a trial * ^ j To grant extensions in appeal cases * * ; To make orders in proceedings against judgment debtors * * ; To hear exceptions in water craft 2 6 2 Dan. Ch. Pr. Chap. 29, 2 2, p. 1322; 1 Tidd's Pr. 509-10; Graham's Pr. 26-27, s" Const. Art. vi. § 16 ; Streeter v. Paton, 7 Mich. 347 ; And see Graham's Pr. 27 ; Ex parte Decker, 6 Cowen, 59 ; Powell v. State, 15 Ohio, 580. s' 2 Comp. L. 1871, § 49-19; People v. Manistee Circt. 33 Mich. 111. " lb. § 4966; Stansell v. Corning, 21 Mich. 242. " lb. J? 5071, 5809, Sub'd 2. '» lb. §? 5865, 5866. » ' lb. § 6078. " lb. § 6359. »' Vo.l 5180, as amended by Laws of 1877, p. 7. ^ »* lb. 2 6522. cjiRctrrr cottet commissionees. 123 proceedings ' ^ ; To make orders in mechanics' lien cases ^ * ; To allow writs of habeas corpus or certiorari, etc." , But he has no power to adjudicate on writs of habeas corpus as to the right to the custody of children ^ ' ; or exoneration of bail. '9 He has no power at chambers to order proofe to be taken before a commissioner when the defendant has elected to have the cause heard in open court * " ; If or to stay proceedings in a suit.^i An order nunc pro tunc can not operate ex post facto to give force to avoid a chamber order, or to give validity to proofs taken under it.* ^ Former Powers of Masters. — The general duties of a Master were to take accounts and make computations ; to make inqui- ries and report facts ; to perform some special ministerial acts directed by the Court, such as sales of real estate, etc. ; also settlement of deeds, appointment of trustees, and the perform- ance of duties prescribed by statute.*' When any power is given in express terms by any statute to a Circuit Judge, or to Circuit Judges, without naming cir- cuit court commissioners' in such statute, such commissioners will not be authorized to exercise any such powers.** »5 lb. § 6669. '^ lb. g 6794, as amended by the Laws of 1879, p. 276. 8' Laws of 1881, p. 365 ; Matter of Buddington, 29 Mich. 472. " Rowe V. Rowe, 28 Mich. 354. 8» De Myer v. McGonegal, 32 Mich. 131 ; 1 Tidd's Pr. 310-314. *« Eslow V. Albion, 27 Mich. 4. ♦1 Mason v. Payne, Walk. 460. *2 Eslow V. Albion, 32 Mich. 193 ; See also Streeter v. Paton, 7 Mich. 341 ; Daniels v. People, 6 Mich. 381 ; Waldby v. Callendar, 8 Id. 430. Note. — In the U. S. Court the Circuit Judge may, at chambers, make and direct all such interlocutory orders, rules, or other proceedings preparatory to the hearing of causes on their merits in the same manner as the circuit courf could. — £f. Rule No.Z. *8 Hoffman's Master, p. 11; 1 HofiF. Ch. Pr. p. 20; 2 Dan. Ch. Pr. Chap, xxix. 1168 ; 1 Barb. Ch. Pr. 469; Simmons v. Jacobs, 52 Maine, 153; Stewart V. Turner, 3 Edw. Ch. 458. «* Laws 1881, p. 242, g 5. 124 CIEOriT COtTET COMMISSIONEES. Commissioners Empowered to Perform Master^ s Duties. — The several circuit court commissioners, within their respective counties, are authorized to discharge all such duties as have heretofore been performed by Masters in Chancery in this I State, according to the practice in Chancery proceedings, and all such other powers as shall be conferred upon them by the several circuit courts according to law, and shall be amen- able to the circuit courts within the jurisdiction, and under the orders of which they may respectively act. But testimony to be used in any circuit court in Chancery may be taken before a justice of the peace, or notary public, if the parties interested, their agents or attorneys shall enter into a stipulation to that effect in writing, and file the same with the clerk of the proper county.*' When the Supreme Court has made any order in reference to a matter, such order cannot be suspended, or in any manner affected by any order granted by a circuit court commis- sioner.*^ Each circuit court commissioner is authorized and empow- ered to do and perform within the county in which he shall reside, all the duties heretofore performed by injunction masters under such restrictions and regulations as the Supreme Court may prescribe. Order by one Commissioner not to be Affected by that of Another. — But when any circuit court commissioner shall have granted or refused to grant any injunction, or shall have made or refused to make any order in reference to any matter or pro- ceeding, such injunction or order will not be affected by any order or proceeding in relation thereto, made by any other circuit court commissioner while the commissioner making or refusing such order or granting such injunction shall be com- petent to act in the premises. If ah application for any order be made to any Justice of the Supreme Court, Judge of a circuit court, or circuit court " Laws 1881, ? 16. *' Laws 1881, ? n. CIBCUIT COXIET COMMISSIONERS. 125 commissioner, and such order be refused in whole or in part, or granted conditionally, or on terms, no subsequent applica- tion in reference to the same matter and in the same stage of the proceedings can be made to any other circuit court com- missioner ; and if upon a subsequent application any order be made by a Circuit Judge, or circuit court commissioner, it will be revoked by such Judge or commissioner, or by any Justice of the Supreme Court upon due proof of the facts.*' Every person making such subsequent application contrary to the foregoing provisions, with knowledge of any previous application and refusal, is liable to be punished by fine and imprisonment by the Court in which such matter may be pending.** Any commissioner refusing to grant any order or injunc- tion must indorse his refusal upon the application for the order or bill of complaint, as the case may be.* ' Wliere Commissioner is Disqualified to Act. — In all cases where there is no commissioner in the county legally quali- fied to perform the duties required by law, by reason of interest, connection with the matter, or controversy, or of any other cause, the same may be performed by any qualified circuit court commissioner of an adjoining county. If the said duties pa?tain to a matter, cause or proceeding pending in any circuit court, they maybe performed by a com- missioner specially appointed for the purpose by a Judge of such court ; or the parties interested may stipulate that any notary public who is an attorney of the Supreme Court may so ac.t.5« But before any such circuit court commissioner of an adjoin- ing county enters upon the performance of any such duties, proof must be made and presented to him by affidavit that there is no commissioner of the proper county competent and ■ " Laws of 1881, p. 243, | 12. «8 Laws of 1881, p. 243, §13. 49 Laws of 1881, p. 244, § 19. e» Laws of 1881, p. 245, g 21 ; Chandler v. Nash, 5 Mich. 409. 126 CIECUIT COirRT COMMISSIONEES. qualified to discharge such duties; and such affidavit must state the grounds of such disqualification. Such proof must in all cases accompany the acts, and form part of the proceedings of the commissioner so discharging such duties.^ 1 Staying of Proceedings. — Commissioners are forbidden to grant any order to stay proceedings before judgment in any cause in which a verdict shall have been rendered ; 6r to stay proceedings on any capias ad respondendum.^'^ When an execution shall have been issued, an order to stay proceedings thereon,^granted by a circuit court commissioner will not prevent a levy on property by virtue of such execu- tion, but will only suspend a sale thereon until the decision of the proper court upon the matter.^* Such commissioner has no power to grant any order to stay proceedings on any execution against the body of a defendant unless such defendant shall execute to the plaintiff, and deliver to such commissioner a bond for the use of such plain- tiff, in a penalty double the amount required to be collected by such execution, with two sufficient sureties, who shall swear that they are each worth the amount of such penalty over and above all debts, and property exempt from execution, condi- tioned that such defendant shall be found within the county to which such execution was directed, so as to be arrested upon any execution that may be issued against his body upon the same judgment within six months from the date of such bond.'* In every order to stay proceedings on an execution against the body, the fact of a bond having been given according to law must be stated ; and if not so stated, such order will be void.^^ , Supreme Court Empowered to Prescribe Rules Governing Com- missioners. — The Supreme Court is empowered to prescribe by Bi Lawsofl881, p. 245, ? 22. " Laws of 1881, p. 242, ? 6. " Lawsof. 1881,p. 242, §7. 61 Lawsof 1881,p. 242, ? 8. " Laws of 1881, p. 243, 1 10. TAKING PEOOFS. 127 general rules any other cases in.-wMcli circuit court commis- sioners shall not be authorized to grant any orders in relation to suits, and to prescribe the terms and conditions upon which orders may be granted in any specified class of cases; and also by order in any particular case, to forbid the interference of any such commissioner. ^^ Every such commissioner is entitled to all the records and files pertaining to the office of his predecessor, and to suits or proceedings 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 his determination in the same manner, 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 process for enforcing any judgment or determina- tion of his predecessor or predecessors.'' General Order to Take Proofs. — If neither party shall obtain an order for taking testimony under Chancery Eule 47, or for an examination of witnesses iu open court, the cause shall stand for hearing on pleadings, and may be noticed by either party. But should either party desire to take testimony, he must pursue the course prescribed by said rule, to wit. : 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 testimony may, at any time within thirty days after the expiration of the time of obtaining the right to such exam- ination in open court, enter an order of course, and give notice thereof to the opposite party for the taking 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 sixty daj'S take the testimony of his witnesses, upon giving ten days notice to the opposite party of the names and places of abode of the witnesses to be examined, and of the time and place of " Laws of 1881, p. 243, ? 15; And see Oi. Rules 111, 112. ^ Laws of 1881, p. 244, J 20. 128 TAKING PEOOFS. sucli eramination, and tlie person before wliom tlie same -will be taken. At the end of the said sixty days, either party on filing an a&davit of the service or receipt of such notice, may enter an order of course that the proofs be closed/* The first step under this rule is to prepare an order to take testimony, file it with the register, and serve a, notice upon the solicitor of the opposite party : Then prepare the said ten days' notice, giving names and places of abode of the witnesses, and time and place of taking the testimony, and serve the same. A stipulation to take proofs before a Justice of the Peace, commencing on a day certain, and to continue from day to day till completed, does not take the case out of the rule as to closing proofs, where the usueA sixty-day order has- been entered. ^^ Taking Testimony by Stipulation. — Parties who have appeared in any cause pending in a court of record may file a stipula- tion consenting that the deposition of witnesses therein may be taken before a notary, Justice of the Peace, or other ofScer authorized to administer oaths. Such officer shall have all the authority of a Circuit Court Commissioner to take such depositions ; and either party to such stipulation may give notice of the taking and examina- tion of witnesses before such officer, and it shall have the same force and effect as notices given under the present practice. The practice in taking such depositions, and of using them on the hearing of the cause, shall be the same as is now provided by law in similar cases before commissioners. The clerk of the court is authorized to issue subpoenas to compel the attendance of witnesses before such officer. The parties may stipulate that the testimony to be taken before such officer be taken down stenographically, and be read to the witness from the stenographer's notes, after which it shall be transcribed in long hand, 'and shall be treated as the " Ch. Rule 47. " » Damouth v. Klock, 29 Mich. 289. TAKING PEOOFS. 129 deposition of the witness, but if desired, he may sign such transcribed testimony. All other requirements of law, how- ever, must be complied with, unless waived by stipulation. The officer taking such testimony shall be entitled to the same fee now allowed by law in similar cases. 11 a stenographer is employed, his compensation must be agreed upon by the parties. Upon payment of his fees the of&cer taking such deposition shall file the same with the Eegister of the court where the cause is pending, together with the stenographer's notes and the copy in long hand.^" The principal change made by the foregoing statute in taking depositions is that witnesses may be compelled by sub- poena to appear before the foregoing named officers. Duties of Circuit Court Commissioners. — The duties of circuit court commissioners in reference to matters in Chancery are similar to those of Master in Chancery before that office was abolished in this State. [See Hoffmanns Master in Chancery.^ Beferences. — Eeferences to a commissioner upon decrees, or upon decretal orders, are made for either of the following pur- poses: ' 1. To take accounts and to make computations. 2. To make enquiries. 3. To perform some ministerial act directed by the Court, such as sale of property, the settlement of deeds, etc. Reference of course. — An order for a reference of course may be executed by any commissioner in the county. Practice Before Commissioner. — The rules and practice of the Circuit Court in Chancery govern the proceedings before the commissioner, so far as they may be applicable."' When a matter is referred to a commissioner, the moving party should furnish him with a copy of the decree or order made in the cause, whereupon a day and place should be assigned for the hearing. «» Laws of 1881, p. 91. '1 Ch. Rule 113. 17 130 PRACTICE BEFOEE COMMISSIONER. Summons. — Unless the opposite party will appear volunta- rily, the commissioner will, on application, give to the party prosecuting the decree or order, a summons duly signed by him, directed to the adverse party, requiring him to attend at the day and place so appointed. It should state in substance the object of the attendance, or there may be a memorandum at the foot of the summons stating the object. It must be served on the adverse party or his solicitor at such time, previous to the day appointed for hearingj" as the commissioner may deem reasonable. But the time of service, unless otherwise ordered by the Court, must be as follows : Not less than two days when the solicitor of the adverse party resides in the city or town where the hearing is to take place; 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 fifty, and not exceeding one hundred miles ; and not less than eight days when he resides more than one hundred miles from the place of hearing ^ ^ Where proceedings are to be had under an order of refer- ence, it is unnecessary to serve a copy of such order on defend- ants. ^ ^ The summons or underwriting should state the time fixed for service when the latter is necessary to inform the party of the object of the hearing ; and both summons and underwriting should be signed. A service of copy of the summons, without showing the original, is void.^* The return on the summons should show the manner of its service.^' If the party entitled to prosecute such order fails to pro- cure the summons issued within thirty days, any other party or person, interested in the matter of the reference, will be at liberty to apply to the Court by motion to expedite the prose- cution ; and if after the service of the summons due diligence «» Ch. Rule 70. «8 "Whipple V.Stewart, Walk. Ch. 357. «4 Howard v. Palmer, Walk. Ch. 391. " Whipple V. Brown, Harr. Ch. 436. PEACnCE BEFOEE COMMISSIONEE. 131 is not exercised by the party entitled to prosecute it, the com- missioner, on the application of any other person interested, may commit to him the prosecution of the reference.®' Where proceedings under a reference have been com- menced before a commissioner they cannot be transferred to another without an order of Court." ^Tienever any process shall have been issued by, or any matter shall have been referred to any circuit court commis- sioner, and he shall be absent or otherwise disqualified from acting therein on any day set for the return or hearing thereof, any other commissioner authorized to perform the like duty in the same county may hear and determine the same and do all necessary acts therein with like effect as though the original process had been issued by him, or the matter had originally been referred to him. Or he may, in his discretion, adjourn the same from time to time, and on the adjourned day proceed therein ; or on said adjourned day, the first commissioner, if not then disqualified, may assume jurisdiction of the subject matter and proceed in all respects as if the said adjournments had been made by him- self. «« Proceedings in Commissioner's Office on Return of Summons. — At the time appointed in the summons for hearing of parties, the commissioner shall proceed to regulate, as far as may be, the manner of its execution, etc.'^ Parties Entitled to Attend. — As a general rule all parties ben- eficially interested, either in the estate or in the fand in ques- tion, are entitled to attend before the commissioner in all those proceedings which may affect their interests.'" BiUs Pro Oonfesso. — When a defendant, after appearance, has suffered a bill to be taken pro confesso against him, he is " Ch. Rule 71. , «' Bishop V. Williams, Walk. Ch. 423; And see Laws of 1881, p. 245, ? 23 «8 Laws of 1881, p. 245, ? 23. " Ch. Rule 72. " 1 Barb. Ch. Pr. 474. 132 PEACTICE BBFOEE COMMISSIONEE. entitled to notice of all proceedings affecting his interests.(a) — [Seep. 39, ante.'] Prodiiction of Documents. — Every decree ordering a reference, should contain a direction that the parties produce before the commissioner, upon oath, all deeds, books, papers, etc., in their possession relative to the matter of the reference, '^ and that the parties be examined as he shall direct ; and the summons should direct the parties to produce such deeds, etc., at the time and place fixed therein. STATE OF FACTS. Nature of. — Before entering upon the prosecution of any proceeding before the commissioner, the party conducting the reference should bring into the commissioner's ofttce a state- ment of his case, technically called a "state of facts." This is a statement in writing made by a party prosecuting or resisting any inquiry before a commissioner of the facts and circum- stances upon which he relies, either in support of his own cause, or in contradiction of that of his adversary. ''^ It is in effect the pleading of the party before the commis- sioner, and is governed by nearly the same rules and pleadings in court. The state of facts is the ground work of the commissioner's report, and enables the opposite party to know what evidence will be necessary for him to support his own case. A state of facts is entitled in the cause, and contains a detailed statement of the facts and circumstances intended to be relied upon by either party. Where a claim upon a fund is made, it should so state. It is then called " a state of facts and claims." If the object is to charge another with the receipt of money it is called a "state of facts and charge." Every state of facts should be verified (a) 2 Comp. L. 1871, | 5082; Jenny v. OTlynn, 5 Mich. 215. " Seaton on Decrees, pp. 9, 10. " 2 Barb. Ch. Pr. 503; 2 Dan. Ch. Pr. Chap. xxix. p. 1221; 2 Smith Ch. Pr. 299 ; 1 Hoff. Ch. Pr. 536 ; 1 Newl, Pr. 524 to 527. PEAOTICE BBFOEE COMMISSIONEE. 133 by oatli.''* [/See noffman^g Master in Chancery, p. 36, and Form No. 20, in Ms Appendix.] The practice under this head is not followed as often as it should be ; but there are many reasons in its favor, both as regards the parties and the officer. 8ubpcB)ia. — Process of subpoena to compel the attendance of witnesses, issues of course, and the time and place of attend- ance must be specified therein, and such witnesses may be punished if they fail to attend and submit to an examination. But no witness shall be compelled co appear before a commis- sioner more than forty miles from his place of residence, unless by special order of court.''* [As to service of subpoena, and punishment for disobeying the same, see 2 Compiled Laws, 1871, §§ 5078, 5689, 5910, 5911.] In case the witness is required to bring with him any doc- uments or papers in his possession, the writ must be a subpcena duces tecum. The commissioner may examine any witness or party either upon written interrogatories or viva voce, as the case may appear, and the evidence must be taken down by him or by his clerk in his presence, ^ ^ and signed by the witnesses,' ^ and it may be taken down in the narrative form.'' Where some only of the parties attend before him, he may proceed ex parte if he thinks it expedient.'* Examination of Books, Etc. — Where by any decree or order of the Court, books, papers, etc., are directed to be produced before the commissioner, he may determine which of them are necessary, and the length of time they are io be left in his office." Documents which are of themselves evidence, with- ^7 " Ch Rule 77; 2Barb. Ch. Pr. 503. ■■• Ch. Rule 57. " Ch. Rule, 75. '« 2 Comp. L. 1871, ? 5090. " Campau v. Dewey, 9 Mich. 381. '» Ch. Rule 74; Campau v. Dewey, 9 Mich. 381- '» Ch. Rule 73. 134 PRACTrOE BKFORE OOMMISSIONEE. out further proof, shall not be read on the hearing unless they have been made exhibits before the commissioner ; but when they are set forth in the bill and not denied by the answer, they may be read, (a) Interpreter. — If a witness does not understand the English language, an order may be obtained ex parte from the Court, upon cause shown, to appoint an interpreter. The person must be sworn to interpret truly ; and the deposition is to be taken down by the commissioner from the interpretation into English. 8 « It is in the discretion of the Court to determine whether an interested person shall act as interpreter.* ^ Commissioners cannot control the order of taking proofe. The parties have the right to determine it. Objections to tes- timony must be stated and entered, but the commissioner can- not pass upon them.'^ Eeferences to ascertain the amount due on a mortgage or any other interlocutory decree, do not come within the mean- ing of Chancery Rule 77 regarding accounting. ^^ Where the commissioner has erroneously refused to receive testimony, or committed other error, a motion should be made for an order requiring him to receive it, and this should be done without waiting for his report.'* Irregularities or Unfairness. — Courts of Equity will take notice of irregulg,rities or unfairness in, the taking of deposi- (a) Ch, Rule 56 ; Bachelor v. Nelson, Walk. Ch. 449 ; Jerome v. Seymour, Hsirr. Ch. 255; Swetland v. Swetland, 3 Mich. 482. so 1 Barb. Ch. Pr. 286; Campau v. Dewey, 9 Mich. 382; 2 Comp. L. 1871, I 5890. For form of oaths, see 3 Dan. Ch. Pr. Chap. xv. No. 17. 81 Swift V. Applebone, 23 Mich. 252. 8 2 Brown v. Brown, 22 Mich. 242. 8 8 Ch. Rule 77; People v. Randall, 37 Mich. 473. 8* Schwarz v. Sears, Walk. Ch. 19 ; Suydam v. Dequindre, lb. 23; Ward v. Tewett, lb. 45 ; Emerson v. Atwater, 12 Mich. 314 ; Barnebee v. Beckley, 43 Id. 616.; Hoffman's Master 58, 59. PEACTICB BEFOEE OOiOOSSroifEE. 135 tions, in any stage of the proceedings in the cause, before hear- ing.*' Order to Enlarge Time to Produce Witnesses. — An order to enlarge time for the examination of witnesses may be granted on cause shown without notice ; but all orders granted after the time for examination has expired must be on notice.*^ The application must also show what the party expects to prove, and a good excuse for the delay." Order to Clnse Proofs, and Return of Depositions by Commis- sioner. — At the expiration of the sixty day order, mentioned in Kule 47, either party on filing affidavit of the service of such notice should enter an order of course that the proofs be closed. Within ten days after notice of the order to close proofs, the commissioner on application by either party shall cause the depositions and exhibits taken or produced before him to be returned and filed with the Eegister. No copies therof shall be read on the hearing unless the original shall have been returned and filed in the proper office.** Fees of Commissioners.^^ — Each party in the first instance must pay for taking down the cr The circuit court commissioner or any other officer or per- son giving notice of sale under Act No. 18, Laws of 1877, p. 12, will be entitled to the following fees for posting such notice : to wit : "When the notice is only required to be posted in the town- ship or city where the sale is to take place, one dollar ; When said notice is also required to be posted in the township where «5 Burtch v.Hogge, Harr. 31; Brown v. Byrne, Walk. Ch. 453; Heyn v. Farrar, 36 Mich. 258. Note. — Chancery Rule 55, providing for examining a co-defendant, is practi- cally obsolete, as parties now are permitted to testify generally, 6 8 Ch. Rule 59. " Thayer v. Swift, Walk. Ch. 384. 8 8 Ch. Rule 58. " For general fee-bill see Ch. Rule 118. »» Sawyer v. Sawyer Walk. Ch. 48 ; People v. Ionia Circt. Judge, 39 Mich. 122. 136 oommissionee's eepoet. the property is located, two dollars, and in addition thereto, ten cents a mile for traveling by the nearest traveled route. Commissioner to keep Register . — It shall be the duty of every circuit court commissioner to keep in his office a register in which he shall enter the title of each cause or proceeding in which he shall make any order, and a complete memorandum of his doings therein; and he shall file with the Begister all orders made by him, together with all papers on which they are based immediately upon making such order. ^ ' Appeal from Order of Commissioner. — Any person conceiving himself aggrieved by any order made by any circuit court commissioner, in any suit in Chancery, may appeal therefrom to the circuit court of the county in which suit is pending: Provided, that such appeal shall be claimed and entered within fifteen days from the time of making such order, and shall within that time execute a bond with sureties to the appeUee in a penal sum not less than one hundred dollars, etc.; but such appeal shall not operate as a stay of proceedings unless by a special order made by the Circuit Judge or such com- missioner on cause shown.' ^ [For proceedings to perfect such appeal, see Ch. Eules, 116, 117.] Commissioner's Beport — Its Nature and Uses. — The manner in which the commissioner presents his opinion, and the results of his inquiries, is either by a certificate or by a report. A certificate is a simple notification of a fact, or of an opinion, or a representation to the Court of any particular proceeding. Eeports are either separate, special, or general. Separate Beport. — ^A separate report is that which embraces but one distinct object of the reference. Formerly it could not be made unless authorized by the decree.'* Now, however, by Eule 78 it is provided that in all matters referred to a com- »i Ch. RuleH4. •2 Ch. Rule 115. »s 1 Hoff. Ch. Pr. 543; 2 Barb. Ch. Pr. 544; 2 Dan. Ch. Pr. Chap, xxix, 1294. commlssionee's ebpoet. 137 missioner, upon application of any party interested, he may make a separate report from time to time as lie shall deem expedient. The costs of such separate reports are in the discretion of the Court. Where the commissioner makes a separate report of debts or legacies, he may make such certificate as he thinks fit with respect to the state of assets ; and any person interested may apply to the Court as he shall be advised. A separate report is only allowed for the purpose of expe- diting the general proceedings. The form, manner of prepar- ing, objecting, and excepting to, and confirming separate reports are nearly the same as upon general reports. Special Report. — Special reports contain special circum- stances found by the commissioner as a guide to the Court for some further direction upon those facts. The commissioner has no authority to make such a report unless directed by the decree to do so. He is only permitted to make such a report when, by the order of reference, some equity is reserved, so that the case must be brought before the Court for further directions upon the coming in of the report.^* General Beport. — A general report embraces the conclu- sions which the commissioner has come to upon all the mat- ters referred to him by the decree or order of reference. 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 impertinent, or that any examination of a party before him is insufficient, such party may file exceptions thereto, with the commissioner, and he shall have authority to expunge any such matter if he shall so find, (a) If the commissioner disallows the exceptions, his decision »* 1 Hoff. Ch. Pr. 543; 1 Barb. Ch. Pr. 546; 2 Smith's Ch. Pr. 158; 2 Dan. Ch. Pr. Ch. xxix. i 1, p. 1294. (a) Ch. Rule 76. 18 138 commissionee's ebpoet. will be final, but it will not prevent tlie party from iasistlng upon the objections at tke hearing, (a) Form of. — The report is divided into two parts, the body and the schedules. The body is a short epitome of the pro- ceedings laid before the commissioner, with his opinion and finding thereon. It contains the results of the accounts or statements, and refers to the schedules for particulars. It should recite the substance only of the directions contained in the order, and should dispose of all matters referred. If a separate report has been made, it should be alluded to. Unless so directed, no evidence should be reported. (6) Exceptions to Report.— K commissioner's report stands in the same -relation to a decree, that a verdict does to a judg- ment ; and the general rule is that it is received as true when no exception is taken. ^' If the commissioner's finding of facts is correct, the Court will decide on them without an exception to his conclu- sions.'^ Oonfirming Beport. — After the report is filed, either party may have an order of course to confirm the same, unless cause to the contrary be shown in eight days after notice of its being filed; and if no exceptions are filed and served within that time, the order shall become absolute of course without farther 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." Our statutes regulating Chancery sales do not dispense with the practice requiring confirmation, (c) (a) Ch. Rule Rule 76, (i) 2 Dan. Ch. Pr.' Ch. xxix. g 1, p. 1295; 2 Smith's Ch. Pr. p. 161-2.1 9 5 Ch. Rules 65, 76, 79; Suydam v. Dequindre, Walk. Ch. 23 ; Emerson v. Atwater, 12 Mich. 315 ; Butterfield v. Beardsley, 28 Id. 412, 423, and cases cited; Slater v. Breese, 36 Id. 78 ; Eaton v. Truesdail, 40 Id. 4, 5 ; Remson v. Rerason, 2 Johns. 494. s" Kingsbury V. Kingsbury, 20 Mich. 212; Schwarz v. Sears, Walk. Ch. 19. »' Ch. Rule 79. Xc) Demary v. Little, 17 Mich. 386. commissionbe's eepoet. 139 The usual order nisi is a sufficient order of confirmation of a Chancery foreclosure sale, if any order is requisite where the defendant has not appeared, (a) On exceptions to the report or certificate of the commis- sioner, the parties will be coniined to the objection taken before him.'* Those reports only require confirmation which come within the description of reports strictly so called — ^that is, those upon which it is intended to found a decree or decretal order. If it be merely a report in the nature of a certificate made upon, or in consequence of an interlocutory application by motion, and intended as a foundation for issuing the process of court, or for another interlocutory order, it requires no confirmation." Therefore all reports of mere calculation, and of matters of opinion, which do not require any further order from the Court to give effect to them, need not be confirmed. Of this class are certificates of papers having been deposited ; Of the deposition of witnesses, etc., certificates of the sufficiency or insufficiency of any pleading, or other matter, reports appoint- ing trustees, or approving the conveyance.""* Still they are liable to exceptions if either party is dissatisfied with the com- missioner's determination. ^ " ' The form of exceptions to a report is similar to that in exceptions to answers. The exceptions should follow sub- stantially the objection taken before the commissioner. 1"^ They are in the nature of special demurrers, and must point out specifically the alleged error.* "* All reports, whether made pursuant to a decree or a decretal or interlocutory order, which involves questions of law or fact, (a) Torrans v. Hicks, 32 Mich. 308. »» Ch. Rule 76. 9 9 2 Dan. Ch. Pr. Ch. xxix. ? l,p. 1304r-5 ; 2 Barb. Ch. Pr. 550; 2 Smith's Ch. Pr. Chap, xxxiv. pp. 357-364. Note.- See U. S. Eq. Rule 83. i«o 2 Smith's Ch. Pr. Ch. xxxiv. p. 358. 101 2 Dan. Ch. Pr. Ch. xxix. ? 1, p. 1309. ma 2 Smith's Ch; Pr. 372; 2 Barb. Ch. Pr. 552. OS Franl<1in v. Hunt, 4 Paige, 382; Wilkes v. Rogers, 6 Johns. 566. 140 commissioner's bepoet. upon which the Court may be called upon to give a legal deci- sion, must be objected to by exceptions.^"* Those more properly designated certificates, and which do not require any confirmation, may be excepted to, with pre- vious objections ; but reports which require confirmation can- not be excepted to without previous objection. Exceptions to a commissioner's report are proper only where the commissioner has come to an erroneous conclusion, either in law or fact, on the whole or some part of the evidence before him, touching the subject matter of reference.' " ' "Whenever a matter has been referred to a commissioner to obtain the result of his investigation and judgment, to serve as a V>asis for a subsequent decree, his regular report, if not excepted to, will bind the parties; and where it has been regularly confirmed, without objection or exception, and fol- lowed by a final decree that is allowed to stand, an Appellate Court cannot review it, or re-examine any part of the final decree that rests upon it.^°® But where an interlocutory decree in ordering a reference decides the turning point in the case, exceptions to the com- missioner's report are not available to compel the court to re-examine the point decided. The proper remedy is by motion or petition to the court below, or by resorting to the Appellate Court by appeal. In such case it is the deter- mination of the Court, and not that of the commissioner, which is involved, and failure to except to the report of the one, implies no acquiescence in the action of the other. i"' Where the commissioner in his report states all the facts correctly, but is mistaken as to the legal consequences of those facts, exception is unnecessary, as the question decided by him may be opened upon further directions without exceptions. ^ " * i»4 2 Smith's Ch, Pr. 366; 2 Dan. Ch. Pr. 1305, 1309. lOB Schwarzv. Sears, Walk. Ch. 19; Emerson v. Atwater, 12 Mich. 315; Thome v. Hilliker, lb. 215; Butterfield v. Beardsley, 28 Id. 423, and cases cited; Slater v. Breese, 36 Id. 94; Tyler v. Simmons, 6 Paige, 127. io« Eaton v. Truesdail, 40 Mich. 4-5. »»» Eaton V. Truesdail, supra; Clark v. Willoughby, 1 Barb. Ch. R.68. i»8 2 Barb. Ch. Pr. 553-4; 2 Dan. Ch. Pr., Ch. 29i g 1, 1310; Adams v. Claxton, 6 Ves. 226 ; Branger v. Chevalier, 9 Cal. 353. commissioner's eepokt. 141 Exceptions cannot be taken for irregularities in a report ; the remedy being an application to set it aside. All parties to tlie suit who are interested in the matter in question may except to the report.^ " " Creditors also who have established their claim before the commissioner, may except to the report though not parties to the suit; but permission must first be obtained from the Court." » Overruling Exceptions. — If the exceptions are overruled, it has the effect of confirming the report absolutely. If they are allowed, but it is unnecessary to refer the report back to the commissioner, the hearing of the cause upon farther directions may be proceeded with, as though the exceptions had been overruled, (a) Allowance of Exceptions. — If the allowance of the exceptions, or any of them, renders it necessary to refer it back to the commissioner, an order is made referring it back to him to review his report ; but the reservation of farther directions, and of the costs of the suit, is continued until after the com- missioner shall have made his report, (a) Beviemng Beport. — Although the usual method of correct- ing a report is by taking exceptions to it, there are many cases in which the Court will direct the commissioner to review his report, without requiring exceptions to be taken; or if they are taken, will direct it to be reviewed upon grounds independent of those laid by the exceptions." ^ A reference back to the commissioner to review a report which has not been excepted to, may be made upon the hear- ing for further directions, and is frequently so made, when the Court is dissatisfied with the finding ; as where he has not found sufficient facts for the Court to found its judgment i»9 2 Dan. Ch. Pr., Ch. 29, § 1, 1311 ; Mec. Bank of Phila. v. Bank of N. B. 2 Green's Ch. 437. 11° 2 Dan. Ch. Pr. Ch. 29, § 1, 1311, 1312. (a) 2 Smith Ch. Pr. 378 ; 2 Barb. Ch. Pr..555. 1112 Dan. Ch. Pr. Ch. 29, ? 1, 1320; 1 Barb. Ch. Pr. 556, 557 ; 2 Smith Ch. Pr. 368. 142 DEPOSITIONS UNDEE COMMISSION. upon; or where lie has exceeded his authority; or where, by some omission or error, a party would be prevented from rais- ing the matter by exceptions. ^ * ^ And even where exceptions to the report had been heard and disposed of, the Court, at the instance of a vendor, directed the commissioner to review his report, in order to give him an opportunity of completing his title. In general, however, the Court is very cautious in admit- ting applications to review a commissioner's report after it has been confirmed, and it is only in clear cases of fraud, surprise, or mistake that it will be permitted. * i ^ Amending Beport. — The proper course for supplying defi- ciencies or correcting errors in a report which has been con- firmed, is by bill of review, though errors apparent upon the face of the schedules have been corrected even after enrol- ment. ^^^ Irregularities in proceedings before a commissioner are waived by the parties afterward appearing in court, and con- senting that the Circuit Judge may take up and proceed with the reference. !•'* References on Default. — For the practice whei'e bills of fore- closure and for divorce are taken as confessed, and referred to a Circuit Court Commissioner, see Ch. Bules 92 and 96 The subject will be referred to again in the special discussion of these bills. Sow and When Commissions May Issue. — The Circuit Judge may direct a commission to be issued to any person or persons to take testimony in any cause depending in chancery ; and such commission may also be issued by either of the Eegisters in chancery, under such regulations as may be from time to time prescribed.^ 1 ^ 112 2 Dan. Ch. Pr. Ch. 29, ? 1, 1320 ; 1 Barb. Ch. Pr. 556, 557. 118 2 Dan. Ch. Pr., Ch. 29, § 1321; 1 Barb. Ch. Pr. 557. 114 Bamebee v. Beckley, 43 Mich. 614. 116 2 Comp. L. 1871, ? 5085. DEPOSITIONS UNDER COMMISSION. 143 The persons so commissioned sliall have authority to administer all necessary oaths or affirmations to all witnesses examined under the commission. ^ ' ' The respective parties and their counsel may be present at the examination before a commissioner, or under a commission, and the witnesses may be examined, cross-examined, and re-examined orally. ^ ' ' The Supreme Court may prescribe rules for the examina- tion of witnesses, etc., before commissioners within the State, and concerning the use of written interrogatories for the examination of witnesses residing out of the State. ^ ^ * The testimony of all witnesses taken by virtue of the fore- going sections must be reduced to writing and signed by them, and filed with the register of the court. ^ ^ ' When witnesses reside outside of the State, or more than thirty miles from the residence of the commissioner, etc., either party wishing to examine them may, after issue is joined, and before proofs are closed, present a petition to the Eegister, stating the names and residences of the witnesses, and of the persons proposed as commissioners asking for the issuance of a commission. If the adverse party has appeared, ten days notice must be given. If he does not appear or object, the commission will be issued.!^" Where Adverse Party Wishes to Join. — If the adverse party wishes to join in the commission, he must, at the time of pre- senting the petition, furnish the names and residence of his witnesses, that they may be inserted in the commission. If not satisfied with the commissioners' names he may name others, and the register after hearing, shall determine who are suitable, but any of the persons so appointed may execute the "« lb. ? 5086. "' lb. ? 5087. "« lb. §? 5088, 5089. 1" lb. g 5090 ;' See Laws of 1881, p. 90. "» Ch. Rule 48; See also 2 Comp. L. 1871, U 5890-5893. 144 DEPOSITIONS UNDER COMMISSION. same in case the others neglect or refuse to join in the execu- tion.12 3 Interrogatories. — ^Witnesses to be examined out of the State shall be examined on written, direct, and cross-interrogatories, to be allowed by a Circuit Court Commisioner, and annexed to the commission. [As to the preparation and service of the same, see Ch. Eule 50.] If it should be necessary to have a commission in any case not provided for by the rules, the Circuit Judge, or Circuit Court Commissioner may on petition grant it.122 Uxecution and Return.— To every commission for the exami- nation out of the 8tate, a copy of the instructions annexed to Chancery Eule 52 must be annexed. The Eegister, on the commission being returned, must open it and endorse thereon the time and manner of receiving it, and then file it. (a) Notice of Motion to Suppress Depositions. — ^Where a party upon examination of witnesses before a commissioner has objected to the competency of any witness, or the relevancy or propriety of any question, he must apply to the Court to have the deposition suppressed, or the objectionable testimony expunged. (&) Suppression of Depositions. — No deposition will be suppressed on the hearing of a cause for irregularity or informality in the taking of the same, but the question must be brought before the Court on a special motion before hearing.^ 2* Upon receiving any deposition taken within or without the State, on commission or otherwise, the Eegister must notify the 1" Ch. Rule 43. '28 Ch. Rule 51. (a) Ch. Rule 53. (6) Ch. Rule 54. 1" Ch. Rule 54; Boxheimer v. Gunn, 24 Mich. 372; Matson v. Melcher, 42 Id. 477 ; And see Fary v: Otis, 11 Mich. 214, and Cook v. Bell, 18 Id. 387. WAai considered irregular: Norris v. Hurd, Walk. Ch. 102; Stockton v. Williams, lb. 120 ; Burtch v. Hogge, Harr. Ch. 31 ; Page v. Stevens, 23 Mich. 357 ; Greenman v. O'Connor, 25 Id. 30. ACCOUNTING. 145 solicitor of the party on whose behalf it was taken, and si^ch solicitor must notify the opposite solicitor, and such motion shall be made within ten days after the solicitor making the same shall have been so notified.^^* The Court is inclined to be technical in requiring a strict compliance with the provisions of the rules and statutes gov- erning the taking of depositions. ^ ^ ^ They should be read over by or to the witness, and it is irregular for him to waive it. On motion they will be suppressed if irregular in this respect. ^ ^ * No motion to suppress is necessary, where depositions are taken after the closing of proofs, to exclude them from consid- eration on the hearing.^ 2' Taking Accounts. — Eule 77 directs that all parties accounting before a commissioner shall bring in their accounts in the form of debtor and creditor, and any of the other parties who shall not be satisfied with the accounts so brought in shall be at lib- erty to examine the accounting party upon interrogatories as the commissioner may direct. On any reference to take or state an account, the commissioner shall be at liberty to allow interest as shall be just and equitable without any special direction for that purpose, unless a contrary direction is con- tained in the order of reference ; and every charge, discharge, or state of facts, brought in before a commissioner, shall be ver- ified by oath as true, either positively or upon information and belief. While this rule is positive in directing the parties to bring in their accounts in the form of debtor and creditor, it is not always necessary to require it, where the admissions of the party to be charged, either in his answer or otherwise, enable the account to be properly made out against him. Under this rule the party must bring in his whole account, and for the whole period for which he is accountable, and it must also be verified. "* Ch. Rule 54. '26 Campau v. Dewey, 9 Mich. 382. i2« Godfrey V. White, 43 Id. 171. "» Abbott V. Alsdorf, 19 Mich. 157. 19 146 ACCOUNTING. In Barnabee v. Becldey,^^^ the Court say that the proper course on accounting is for parties to appear before a commis- sioner with charge and discharge accounts, and after full hear- ing before, and report by him, to file exceptions to his report, and bring the case to a hearing upon them. In this case the Court dwell upon the importance of conducting an account- ing according to the regular method before a commissioner instead of settling a case before the Circuit Judge. The Circuit Judge has a right to hear a case of accounting without a reference to a commissioner, but when he does so he should proceed 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 matters in controversy will be indicated by the record.^^a The following is the form of an account in the case of an executor directed to account.^ *" [HJifo of Cause.'] — The account of the defendant C. D., of the personal estate and effects of E. F., deceased, the testator in the pleadings in this cause named, come to the hands of, and received by the said defendant as executor of the said testator, and of the disbursements and payments ma-de by the said exec- utor thereout. 1881. Dr. Jany 1. Cash found in the testator's dwelling house at the time of his death. $150 00 1881. Cr. Jany 1. Cash paid to Mr. L., the undertaker, amount of funeral ex- penses. $100 00 , 1S8 43 Mich. 613. 1 2 * Barnabee v. Beckley, supra. ^so 1 Barb. Ch. Pr. 506. Note. — A decree against surviving partners for an accounting for assets jointly held, must be against them jointly for the whole amount, even though they had divided the same amongst themselves. — Bundy v. Youmans, 44 Mich, 376. ACCOUNTING. 147 As in practice, parties usually adapt the conduct of a cause to the circumstances of each case, without regard to strict rules of procedure, the student is referred to Mr. Barbour's work on Practice, Vol. 2, p. 468, under title of "Proceedings in the Master's Office." Where persons are incidentally interested, but who are not parties to a suit, they are not concluded by an account- ing.^** Computing Interest.— The decree frequently contains a direc- tion to the commissioner to compute interest upon debts, legacies, etc. Chancery Eule 92 directs that if a bill to foreclose a mort- gage be taken as confessed, or the right of the complainant as stated in the bill is admitted by the answer, he may have an order of course referring it to a commissioner to compute the amount due to the complainant. In computing interest under a decree, the commissioner usually calculates it up to the date of his report. * * ^ The statute of Michigan fixes the rate of interest at seven per cent, per annum, but makes it lawfal for parties to stipulate in writing- for the payment of any rate not exceeding ten per cent.' 8* Interest may be allowed and received upon all judgments at law for the recovery of any sums of money, and upon all decrees in Chancery for the payment of any sums of money, whatever may be the form or cause of action or suit, in which such judgment or decree shall be rendered or made, and such interest may be collected on execution at the rate of seven per cent, per annum : Provided that on a judgment rendered on any written instrument, having a different rate, the interest must be computed at the rate specified in such instrument, not exceeding ten per centum.' ** "1 Ryersonv. Eldred, 18 Mich. 12. "2 Seaton on Decrees, 58; 2 Barb. Ch. Pr. 516. I'a 1 Comp. L. 1871, § 1632. 1" 1 Comp. Laws 1871, § 1635; Warner v. Juiff, 38 Mich. 662. 148 SALES TINDEE DECEBE. If the rate of interest mentioned in the instrument sued upon should exceed seven per centum, the rate mentioned in the decree should correspond with it.^*' The contract rate of interest is allowed in this State as well after as before the maturity of the debt, (a) When an installment of interest upon any note, bond, mort- gage or other written contract shall have become due, and the same shall remain unpaid, interest may be computed and col- lected on any such installment so due and unpaid from the time at which it became due, at the same rate as specified in any such note, bond, mortgage, or other written contract, not exceeding ten per cent., and if no rate of interest be specified therein, then at the rate of seven per cent, per annum, i ^ ^ The foregoing statute applies to cases only where installments of interest fall due by themselves, and can be demanded apart from the principal. ^^'^ It has no reference to an obligation falling due in one year with annual interest.' '* General Bide of Computing Interest. — ^When a payment of principal is not equal to the interest due at the time the pay- ment is made, the interest must be computed to the time when the payment shall be equal to all the accrued interest ; or if there has been no such payment, then to the time of liquida- tion.! » 9 Sales of Mortgaged Premises and in Other Gases, under Decree, by Circuit Court Commissioner. — All sales of mortgaged premises under a decree in Chancery, must be made by a circuit court commissioner of the county in which the decree was rendered, or the land or some part thereof is situated, or by some other person duly authorized by the order of the Court. Such sales shall be at public vendue between the hour of nine o'clock in the morning and the setting of the sun, at the 1" 1 Comp. Laws 1871, § 1635. (a) Warner v. Juiff, 38 Mich. 662. 1" 1 Comp. Laws 1871, ? 1637. !«' Hoyle V. Page, 41 Mich. 533. 1 8 s Hoyle v. Page, supra. '8» Paynp v, Avery, 21 Mich. 525. SALES TJNDEE DECEEE. 149 court house or place of holding the circuit court in the county in which such estate or some part thereof is situated, or at such other place as the Court shall direct.' *" Notice of Sale. — The circuit court commissioner or other officer authorized by law, or any person duly authorized by an order of the Court to sell real estate, in pursuance of any decree or final order of a court of Equity, shall, previous to such sale, give notice thereof for the same time, and in the same manner, as is required by law on sales of real estate by sheriffij on execution. i.*' The notice of sale by the commisioner under a decree, should describe the real estate with accuracy.' *2 It should also con- tain the title of the cause, names of the parties, and date of the decree in pursuance of which such sale is to be made. The commissioner may give the requisite notice of sale previous to the enrollment of the decree, but to protect the title of the purchaser, the party for whose benefit the sale is made should cause the decree to be enrolled and produce a certificate thereof before any conveyance is executed by the commissioner; and where a previous decree or decretal order disposes of any part of the merits of the cause, or is necessary to explain the final decree, it should either be recited therein, or enrolled therewith as part of the final decree in the cause. ^ * ' It is provided by Chancery Eule 92 that from and after January 1, 1879, foreclosure sales shall not be ordered on less than six full weeks, or forty -two days' notice; and that publi- cation shall not commence until the time fixed by the decree for payment has expired, nor within a year after commence- ment of suit. In Culver v. McKeovm, the Court say that the one year and six weeks that must elapse before sale on foreclosure may be i*» 2 Comp, L. 1871, § 5153, as amended l>y Laws u/lSTT,/. 12; Also see Laws of 1881, p. 245. '41 Laws of 1877, p. 12; For sales by Sheriff, see 2 Comp. L. 1871, §4629; Wagar v. Briscoe, 38 Mich. 593 ; Ireland v. Woolman, 15 Mich. 253. See Foreclosure, "2 Griswold V. Fuller, 33 Mich. 268 ; Laws of 1877, p. 12. "» Ch. Rule 80; Taylor v. Gladwin, 40 Mich. 233; Mickle v. Maxfield, 42 Id. 304. 150 SALES trjiiDEE DECREE. computed from the date of taking out the subpoena if it is taken out with the intention in good faith of serving it as soon as possible, and there is no laches in obtaining service, (a) The commissioner, or other officer or person authorized to make such sale has power to adjourn the same from time to time for reasonable cause ; and if such adjournment be for more than one week, he shall give notice thereof in the news- paper in which the original notice was printed, and immedi- ately following the same, and shall continue the publication of such notices for the time for which such sale shall be adjourned but shall not be required to post any notice of such adjourned sale except at the place where said sale is to be made. When an adjournment of the sale is on motion of complain- ant, he should pay the expense thereof.'** When a sale that has once been duly advertised is adjourned for a day or two, and those who attended are noti- fied of such adjournment, a sale made on the adjourned day is good without farther advertisement.'*^ In case any person making the highest bid upon such sale shall neglect or refuse to make immediate payment of the sum so bid, such officer or person may immediately, or upon some other day to which he may in his discretion adjourn such sale, proceed to resell such real estate. But if such adjournment be for a period of one week or more, notices shall be published as provided in Sec. 3 of said Laws of 1877. Any officer or person who shall sell any real estate in pursu- ance of any such decree or final order of a court of Equity, without having given the notices in the manner required by the provisions of said Act, will be liable to the party injured in the sum of one hundred dollars in addition to such actual damages as he may recover in an action brought therefor. (a) 43 Mich. 322. "* Hart V. Lindsay, Walk. Ch. 72. See new Commissioner's Act, Laws of 1881, p. 245, |? 24, 25. ^*^ Isbell V. Kenyon, 33 Mich. 63. SAUES imDEE DEOEEB. T51 The circuit court commissioner or other ofiBlcer or person making sale of any real estate, as provided in said Act, is forbidden, directly or indirectly to purchase or be interested in the purchase of any real estate so sold by him.i*« An auctioneer, however, may be employed merely to con- duct the sale in his presence.^*^ Commissioners sales are usually conducted by the solicitor for the complainant, and he is, usually, in all questions which may arise between the vendor and the purchaser, to be consid- ered as the agent of the parties to the suit.^** Adjournment in case of Absence. — Whenever any commis- sioner shall have advertised property for sale in pursuance of a decree of Court, and on the day of sale, or the adjourned day thereof, he shall be absent or otherwise disqualified from acting in the premises, the other commissioner of the county, if there be one, who is not disqualified, and if not, then a circuit court commissioner of an adjoining county, may proceed and make the sale, execute the proper deed, make his report and proceed in all respects as though he had origiaally advertised the said property for sale. Or in his discretion he may adjourn the sale from time to time, and publish notices of adjournment in his own name, and make the sale on the adjourned da,y, unless the commis- sioner who advertised the same shall then be present and com- petent to proceed, in which case he shall at his election be entitled to do so.^*^ In all cases where a commissioner has advertised real estate for sale, under a decree or order of any court of this State, and his term of office shall expire before the sale shall be consum- mated, he may proceed to complete and perfect the same, as if his term of office had not expired, and for such purpose his "6 Laws of 1877, p. 12. >4' 2 Barb. Ch. Pr. 526. "» Griswold V. Fuller, 33 Mich. 268. 1" Laws of 1881, p. 245, ? 24. 152 , SAJLEB mSTDEE DEGREE. V power and authority shall continue until all such business is liiUy closed. 1^" Sale hy Parcels. — ^When the real estate offered for sale by virtue of any execution shall consist of seyeral known tracts or parcels, such lots, etc., should be separately exposed for sale. Such is the method required by statute in execution sales and foreclosures by advertisement.^ ' ' If the tracts, however, are occupied as one parcel the rule would not apply to foreclosures by advertisement. ^ ^ ^ The law of 1877, Act'18, p. 12, Sec. 1, however, would seem to require that sales, under chancery decrees, should be conducted in the same manner as is required on sheriff's sales of real estate on execution. A sale of several parcels in one lot for one bid after an offer in parcels had failed, is invalid.i^s Also where a sale of sev- eral undivided interests in mortgaged lands was made " as a whole."^®* Also where the land was originally described as one lot, and there is no showing that it should be sold in par- cels.i^^ Where one owning two adjoining lots erects a building cov- ering one of them and part of the other, the entire premises must be sold as one parcel. ^ ' ^ No more parcels can be sold than are suflcient to satisfy the mortgage debt. ' ^ ' In the case of Osman v. TrapJmgen, the Court held that the omission by an administrator to sell real estate in parcels was an irregularity, and would not invalidate the sale when "0 Laws of 1881, p. 246, g 25. iBi 2 Comp. L. 1871, U 4636 and 6918; Udell v. Kahn, 31 Mich. 197; Lee V. Mason, 10 Id. 403 ; Griswold v. Fuller, 33 Id. 268. 163 Larzelere V. Starkweather, 38 Mich. 97; 2 Comp. L. 1871, ? 6918, as amended by Laws of 1875, p. 26. 16 3 Udell V. Kahn, supra. 164 Spear v. Hadden, 31 Mich. 266. 166 Vaughn v. Nims, 36 Mich. 297. 16« Geney v. Maynard, 44 Mich. 578. 16' Grover v. Fox, 36 Mich. 462. SALES tnSTDEE DEOEEE. 153 attacked collaterally. The Court also held that the omission to sell in parcels should be treated as a mere irregularity, and could not be attacked collatercdlyA^^ Inverse Order of Alienation. — Where a part of mortgaged premises has been sold by the mortgagor, subsequeivt to the mortgage, the rule in equity on a foreclosure sale is to require that part of the premises which the mortgagor has not sold, to be sold first; and then, if necessary, that which has been aliened ; and when the latter is in possession of different ven- dees, in the inverse order of alienation.i^^ And this rule does not depend upon the existence of cove- nants of warranty. ^ * " But where a part of the mortgaged premises is conveyed subject to the paj^ment of the entire mortgage by the grantee, that part as between the vendor and vendee constitutes the primary fund for its payment. ^ ^ ^ The first grantee of a portion of mortgaged property has a right to understand that all the rest stands charged with the payment of the mortgage debt before his portion can be resorted to ; and equity will give relief when a party has so enforced his legal rights as to work injustice to another, (a) And when a bill is filed to foreclose the mortgage, such subsequent purchaser may protect his right by setting up the facts in his answer instead of filing a cross bill.i ^ ^ "8 23 Mich. 85; Cunningham v. Cassidy, 17 N. Y. 276. See 2 Jones on Mortgages, |g 1616 to 1619, for careful statement of the law of sales by parcels. IBS Mason v. Payne, Walk. Ch. 459; Cooper v. Bigley, 13 Mich. 463; Ireland v. Woolman, 15 Id. 253; Gantz v. Toles, 40 Id. 725 ; 1 Story Eq. Jur.. Chap. 13, i 633; And see 2 Jones on Mortgages, for full statement of the doc- trine. '«" Cooper V. Bigley, supra. i«i Mason v. Payne, Walk. Ch. 459; Gould v. Bailey, Walk. Ch. 478; Caruthers v. Hall, 10 Mich. 40 ; See also James v. Brown, 11 Mich. 26; Payne V. Avery, 21 Mich. 524 ; Carley v. Fox, 38 Id. 387. (a) Gilbert v. Haire, 43 Mich. 283. ^'^ Carrutheis v. Hall, supra. 20 154 BALES TTNDEE DECEEE. WTiere mortgaged premises have been sold in parcels at different times, that which was sold first shall be the last to be resorted to for the satisfaction of the mortgage, if there be no intervening equities to disturb its application.'*' Where two persons have a lien on the same piece of prop- erty which is insufficient to satisfy both, and one has a lien for his debt on another parcel, he must exhaust the latter before he can resort to the common fund.' ** Where one has a lien on two separate fands, and another or subsequent lien upon one of them only, the former must first resort for the satisfaction of his demand to the fund which is not subject to the other lien.i*^ The object of the rule is not to take from the prior incum- brancer any substantial right, but to require him to enforce his rights in such order of priority as without loss to himself will protect, as far as practicable, the subsequently acquired interests of others.' ^ * But the rule must be so applied as to protect, and not destroy equities.' *' In the marshalling of securities in foreclosure cases, the principle is that where there is a lien upon different parcels of land for the payment of the same debt, some of whict still belong to the person owing and equitably bound to pay the debt, and others are owned by third parties, as between him and them, his part of the land should be first chargeable with the debt.' « 8 Anything knowingly done by a first mortgagee to the pre- i«8 McKinney v. Miller, 19 Mich. 143. IS* Trowbridge V. Harleston, Walk. Ch. 185; And see Davis v. Rider, 5 Mich. 423, where the doctrine stated in the text is modified. 1 « 6 Slater v. Breese, 36 Mich. 78 ; Det. Sav. Bank v. Tniesdail, 38 Id. 439 ; Southworth v. Parker, 41 Id. 200. I^" Det. Sav. Bank v. Truesdail, supra; Cooper v. Bigby, supra; Sibley v. Baker, 23 Mich. 312; Brinkerhofif v. Marvin, 5 Johns. Ch. 320; Aldrich v. Cooper, note, 2 White and Tudor' s Eq. Cases 232. 1 <" Southworth v. Parker, supra. >«» Ogden V. Glidden, 9 Wis. 46. SALES TTNDEE DECEEB. 155 judice of a subsequent one, will to that extent postpone his own security to the second mortgage.^ '* But the rule does not apply to land which the mortgagor had aliened prior to the giving of the mortgage. ' ' " Discharging the Purchaser. — If, after the confirmation of the report, it should appear that the purchaser is unable to perform his contract, a motion should be made to discharge him from his bidding, and that the estate may be resold.^'i Should he not consent, notice should be served upon him with copy of an affidavit of the facts making it necessary. But on resale, the Court may compel the purchaser to make good any deficiency in the price received, i ' ^ If the purchaser is responsible, the Court will, if required, make an order that he shall, within a given time, pay the money into court and be let into possession. If he requires it, the Court will direct a reference to the commissioner to enquire whether a good title can be made.^'* A purchaser will be discharged whenever he shows a good reason for being released, i. e., irregularity in the proceeding rendering the title defective, or mistake as to the condition of the property. But when the object of the purchase is not defeated, and the purchaser is not injured by the contract being enforced, he will not be permitted to abandon it.^'* Although the purchaser may be satisfied with the title, yet if the property has been falsely represented, but not to such an extent as to vitiate the sale, or, if before possession, deterio- ration has taken place in the value of the property, he is enti- tled to compensation, and which when ascertained on reference i«» Bailey v. Gould, Walk. Ch. 478. !'» Sager v. Tapper, 35 Mich. 134. i'» 2 Barb. Ch. Pr. 532; Benhard v. Darrow, Walk. Ch. 519. "8 2 Barb. Ch. Pr. 536; 1 Sug. on Vendors, 60; 2 Dan. Ch. Pr. Chap. xxix. I 1, 1285. "8 Newl. 335-6. 1" 2 Barb. Ch. Pr. 533-34 ; Weems v. Brewer, Harris & Gill, 390. 156 SALES TJNDEE DECEEE. to a commissioner, may be deducted from the amount of his purchase money. ^ '' ' Substitution of Another Purchaser. — If a person is desirous of being substituted for the purchaser, the Court, with the latter's consent, and being satisfied of the fairness of the transaction, will, on payment of the purchase money, order the execution of a conveyance to him by the commissioner, subject to any rights of third persons, (a) If the commissioner's conduct is grossly improper and oppressive upon a sale by him, he will be ordered to pay the costs setting aside his report of the sale, and of the subsequent proceedings thereon. ^ ^ ^ In sales under decrees, the purchaser is not considered enti- tled to the benefit of his purchase until the commissioner's report is confirmed.^'^ Deeds on Foreclosure. — After a sale on foreclosure a deed is to be executed by the commissioner or other person making such sale. It must specify the names of the parties in the suit, the date of the mortgage, when and where recorded, with a descrip- tion of the premises sold, and the amount bid for the same. It vests in the purchaser the same estate that would have vested in the mortgagee if the equity of redemption had been foreclosed, and no other or greater. Such deed will be as valid as if executed by the mortgagor and mortgagee, and will be an entire bar against each of them, and against all parties to the suit in which the decree for such sale was made, and against their heirs respectively and all per- sons claiming under such heirs. The Eegister of Deeds whenever any such deed is entered for record in his ofi&ce, must note on the margin of the record I" 2 Smith Ch. Prac. 192; 2 Barb. Ch. Pr. 535. (a) 2 Smith's Ch. Pr. 197. ■"■'« Baring V. Moore, 5 Paige, 48. 1" Slater V. Breese, 36 Mich. 78; When purchaser hot precluded from bid- ding, on account of prior equities, see Moote v. Scriven, 33 Mich. 500. SALES trUDEE DECREE. 157 of the original mortgage, the book and page of record of the deed.1'8 Order to Confirm Report — After the report has been filed, the complainant's solicitor enters an order of course that the sale may be confirmed, unless cause is shown against it within eight days after notice of its being filed. And if no exceptions are filed and served within that time, the order will become absolute without further order. ^'^ No right becomes fixed in the purchaser until the sale becomes absolute by confirmation. This is the settled practice in Michigan. * ^ " But when a purchaser has taken possession of premises under claim of title derived from such sale, and has exercised acts of ownership over the same, he so far practically confirms the sale as to preclude himself from insisting that it is unconfirmed, and that an order opening the sale is discretionary and not subject to appeal.^^^ If any order is needed in a default case, the usual nisi order is sufficient.1'2 An order to correct a report of sale should specify the errors.i*^ An error in reciting the date of a foreclosure decree in the commissioner's report of sale is immaterial when the record furnishes the means of correcting it.^ * * Opening Biddings, and Resales. — Courts of Equity, and courts exercising equity powers, have a general supervision over their process, and especially over sales ordered by their decree, and made by their special officers, and may set aside or confirm sales, or order a resale as the ends of justice may require. "8 2 Comp. L. 1871, 1 5154. >" Ch. Rule 79; And see U. S. Circt. Ct. Eq. Rule 19. 18" Demarayv. Little, 17 Mich. 386; Howard v. Bond, 42 Id. -131; Richards V. Morton, 18 Id. 255. 181 Ledyardv. Phillips, 32 Mich. 13. 1" Torrans v. Hicks, 32 Mich. 308; Slater v. Breese, 36 Id. 78. 1 « s Ruggles V. Bank of Centreville, 43 Mich. 192. J 84 Ruggles V. 1st Nat'l Bank of Centreville, 43 Mich. 192. 158 SALES UNDER DECEEE. The application may be made by petition, or motion on proper notiee.i*® The grounds upon which sales are usually sought to be set aside are inadequacy of price, irregularity, mistake, or mis- apprehension, surprise, fraud, and reversal of decree of sale. But the facts must be clearly made out by evidence.!'^ The effect of opening the biddings is to discharge the pur- chaser from his purchase entirely, and if he has paid the deposit he will be entitled to have it returned. ^ *'' Unless the inadequacy of price is such as to raise in itself the presumption of fraud, the sale will not be disturbed. But if in addition thereto, elements of unfairness or advantage exist, it will be set aside, i * * If the party be guilty of latches the inadequacy will not be considered.^*^ The equities must be strong and clear to warrant setting aside a chancery sale at the instance of a purchaser, on the ground of misapprehension of his legal rights.^"* On an application to set aside a sale, the Court will not enquire into the regularity of the foreclosure proceeding, or whether the decree is for a greater or less sum than it should have been. Ifor will it consider the question of surprise where it springs from the negligence and inattention of the complaining party. But when complainant, after an agree- ment to postpone a sale failed to do so, and the property sold 18S 2 Barb. Ch. Pr. 540-1; 2 Dan. Ch. Pr. Chap, xxix, § 1, 1285, note 7, and cases cited. 188 Buchoz V. Walker, 19 Mich. 224; Bradley v. Tyson, 33 Id. 337; Gilbert V. Haire, 43 Id. 283. 1" 2 Dan. Ch. Pr. Ch. 29, ? 1, 1288 ; 2 Barb. Ch. Pr. 537-8. i88 Burtch V. Hogge, Harr.Ch. 31; BuUard v. Greene, 10 Mich. 268 ; Gil- bert V. Haire, 43 Id. 283; Rorer on Sales, 152; Coffey v. Coffey, 16 111. 141, and cases cited ; Fry on Spec. Perf. ^| 275, 6, 7, 278 ; also p. 193, note 2 ; 1 Sugd. on Vend. p. 365 ; 2 Hilliard Vend. 440 ; 1 Story's Eq. Jur., g 2447 ; 3 Pars. Cent. 361, note; Seymour v. Delaney, 6 Johns. Ch. 222. 18» Hartv. Lindsay, Walk. Ch. 72; BuUard v. Greene, supra; Leonard v. Taylor, 12 Id. 398; Goodwin v, Burns, 21 Id. 211 ; Parkhurst v. Cory, 3 Stockt. (N. J.) 233. iio Ledyard v. Phillips, 32 Mich. 14. SALES TJNDEB DECEEE. 159 for niTich less than its value, the Court on application set aside thesale.19 1 A transfer of a bid made on foreclosure sale will not be a valid ground for ordering a new sale. ' ^ ^ Where a sale is kept open to enable a bidder to produce the money, but he fails to make good his bid at the time agreed upon, and the sale is proceeded with and struck off and deeded to another, it will not be set aside at the instance of such bidder as matter of right in the absence of equities, for the reason that it was made after the time mentioned in the notice.''^ A much stronger case must be made to set aside the sale after confirmation of a report of sale than before.' ^* Where subpoena was not served until six months after filing the bill, and the sale took place at the end of said six months, the sale was set aside — the defendant not having had one year's notice of the proceeding.' ^ ' When the validity of a judicial sale is sought to be at- tacked after the rights of a third party have accrued, it must be by some original proceeding in which an issue can be formed, and they can be heard. ' ^ ^ Purchasers at public judicial sales usually buy at their own risk as to the regularity of the title.' ^ ' It is well settled that parties purchasing titles under judi- cial sales purchase only what can lawfully be sold." ^ They are entitled to the crops growing upon the premises at the time of sale.i^^ 1" Demaray v. Little, 19 Mich. 244. 1" Culver V. McKeown, 43 Mich. 322. "3 Isbell V. Kenyon, 33 Mich. 63. 19 4 Bullard v. Green, 10 Mich. 268 ; 2 Dan. Ch. Pr. Chap. 29, 1289, note 2, and 1290 and note-, Campbell v. Gardner, 3 Stockt. (N. J.) 424, 425. 1" Detroit F. & M. Ins. Co. v. Renz, 33 Mich. 299 ; See Rule 92. '" Crawford v. Fuller, 35 Mich. 57; Berry v. Innes, lb. 189; Lawrence V. Jarvis, 36 Id. 281 ; Jewett v. Morris, 41 Id. 689. 1" McGroen v. Avery, 37 Mich. 121. 19» Walsh V. Vamey, 38 Mich. 76. 199 Yelverton v. Steele, 36 Mich. 63; Ruggles v. Bank of Centreville, 43 Id. 192. 160 SALES I7NDBE DECEEB. A purchaser at a judicial sale has a right to presume that it is conducted under the provisions of the public law. 2""' But he must ascertain at his peril whether the- order of sale was warranted or not.^"* Where fraud is alleged, if the application to set aside is after the confirmation, the party must show that it was unknown to him at the time of confirmation. The petition to re-open the bidding should state the pro- posed amount of the advance of the former bid. If a re-sale is ordered the proceedings thereon will be the same as those upon the original sale.^" ^ Keglect to re-engross the foreclosure bill after amending it, by adding a new party defendant, does not necessarily invali- date a sale.^"^ Writ of Assistance. — Until the report is confirmed the Court will not interfere to compel a delivery of the possession of the premises to the purchaser, whether he be the mortgagee him- self, or a stranger to the suit. Until such confirmation, any person interested in the sale may apply to the Court for a re-sale. 2"* The purchaser is entitled to the profits of the estate from the time of the sale. This writ is the regular process for carrying out a decree for possession. Its object is to compel parties who are bound by a decree to give up the possession which they hold as mere tenants at sufferance, and which by the decree and sale under it, they have become estopped from further asserting; but it can be used to enforce only such rights. It can never be proper when there is any real controversy as to the right of possession, not precluded by the decree and sale, and is therefore unavailable where a new arrangement «»<> Browning v. Howard, 19 Mich. 323. s"! Ritson V. Dodge, 33 Mich. 463. aoa 2 Barb. Ch. Pr. 542 ; 2 Smith Ch. Pr. 215. aos Carpenter v. Ingersoll, 43 Mich. 433. »»* Kershaw v. Thompson, 4 Johns. Ch. 610 ; 2 Barb. Ch. Pr. 531. SALES UNDliE DEOEEB. 161 has been effected after the sale, and the possession is claimed to be had thereunder. ^ " ^ The proper practice is first to show the commissioner's deed, and a certified copy of the order confirming the sale, under the seal of the Court, to the defendant or party in pos- session and make demand of possession, and on refusal, apply for the writ, (a) It will only be granted upon confirmation of the sale, and proof that the purchaser has received a valid deed of convey- ance from the commissioner.^"* An appeal lies from an order granting the writ, which has been shown to the party in possession, accompanied by a demand and refusal of possession.^"'' When title is decreed in equity, possession will be given without compelling ejectment.^"* Where mortgaged premises are sold under decree of fore- closure, the purchaser is entitled to the assistance of the Court in obtaining the possession only as against parties to the suit, or those who have come into possession under them, subsequent to the filing of notice of lis pendens. But it must be on notice. ^"^ In foreclosure suits the decree directs that the purchaser be let into the possession of the premises on production of the commissioner's deed, and a certified copy of the order confirm- ing the report of the sale, after the same has become absolute. The Court has no jurisdiction by a summary proceeding to determine the rights of third persons claiming title to the premises who have recovered possession by adverse legal pro- p's Baker v. Pieison, 5 Mich. 456; Ramsdell v. Maxwell, 32 Id. 285; Howard v. Bond, 42 Id. 131 ; 2 Barb. Ch, Pr. 529. 20 6 Howard v. Bond, supra; Summers v. Bromley, 28 Mich. 125. (a) Hart v. Lindsay, Walk. Ch. 144. 20' 2 Barb. Ch. Pr. 529 ; Hart v. Lindsay, supra. 2 8 Whipple V. Farrar, 3 Mich. 436. *"9 Benhard V. Darrow, Walk. Ch. 519; Boynton v. Jackway, 10 Paige, 307 ; 2 Barb. Ch. Pr. 532. {6) Frelinghuysen v. Golden, 4 Paige, 204. 21 162 TEAUSFEE OF CAUSES. ceedings against a party to the suit, under a claim of right which accrued previous to the filing of the bill of foreclosure. Nor will a writ of assistance be granted against persons who are in possession of the premises at the time of the com- mencement of the suit, and who are not made parties thereto, to turn them out of such possession.(a) Where a decree is made in the Supreme Court allowing a writ of assistance, it should issue from the Circuit Court, ^i" Where the Circuit Court sets aside a judgment and writ of possession issued thereon, under which certain premises have been seized, it has power to restore such possession.^ ^ ^ Transfer of Clauses. — ^Whenever any civil suit or proceeding is pending in any circuit court in this State, either on the'law or equity side of said court in which the Judge of said court shall be interested as a party or as a member of any corpora- tion which is a party to said suit, or, has heretofore been con- sulted or employed as counsel in the subject matter to be liti- gated in said suit, w in which he would be excluded for 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 law.^ " ^ 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 dis- qualifications mentioned in the preceding section for an order to transfer such suit. Such application must be in writing and must set forth the grounds specifically for such transfer. On receiving such application the commissioner or Judge must appoint a time and place of hearing the same, and from tijne to time, as may be necessary, direct the manner in which (a) RamsdeU v. Maxwell, 32 Mich. 285; Howard v. Bond, 42 Id. 131. 2i» Ryerson v. Eldred, 18 Mich. 195. 21' Compau V. Coates, 17 Mich. 235. SIS 2 Comp. L. 1871, § 4971. TKANWFEE OP CAUSES. 163 notice of sucli hearing shall be given to all parties interested in such application.^^* On the day of hearing, on due proof of notice, the com- missioner must proceed to hear the case, and if satisfied from the evidence, shall make the proper order of transfer.^^* The suit may be transferred to the county where the party or his solicitor resides, if the Judge of said county be qualified, unless the parties shall otherwise stipulate.^^ ^ On filing the order of the commissioner with the Eegister of the court to which said suit is directed to be transferred, the said Court obtains jurisdiction of the same as though it had been commenced there, and may make the necessary order to procure the transfer thereof, and to cause due notice of such transfer to be made.^^ ^ Upon delivering to the register of the court where said suit was pending, a certified copy of said order of transfer, he is required to attach together the original papers and copies of all orders, and to transmit them to the register of the court to which said cause was transferred.^!^ In this proceeding the statute should be strictly complied with. The order should be for a '■'■transfer of the ca-use," and not merely the " transmission of the papers." ^ ^ * The parties to any such suit may, by stipulation in writing, consent to the transfer of such suit or proceeding without any application to the Judge or commissioner; in which case the stipulation will have the same effect as an order duly made for such transfer under the provisions of this act.^'^ 811 2 Comp. L. 1871, ? 4973. 2" 2 Comp. L. 1871, § 4974 "^ lb. § 4975. "« lb. §4976. "'lb. §4977. "''■' Shannon V. Smith, 31 Mich. 453; And see Whipple v. Saginaw Circt, 26 Id. 342; Palmiter v. P. M. Lumber Co., 31 Id. 184. ai' 2 Comp. L. 1871, §4972. CHAPTEE XIV. HEADING. Section 1. Preliminary Proceedings. 2. Hearing of the Cause. SECTION I. PEELIMINAKY PEOCEEDINGS. Notice of Searing. — After the proofe are closed, either party may notice the cause for hearing at the next or some subse- quent term. It is not necessary in any case to obtain an order to set a cause down for hearing; but when it is in readiness for hear- ing on plea or demurrer, bill and answer, pleadings and proofs, exceptions to a commissioner's report, or on the equity reserved, either party may notice the same for hearing and have the cause entered on the calendar of causes for the term.^ Ifotices of hearing must be served on the opposite party when the solicitor resides over one hundred miles from the place where the court is to be held, at least eight days before the commencement of the term ; if he resides over fifty and not exceeding one hundred miles, six days, and in all other cases at least four days previous to the term. Copies of all papers upon which any special application is founded, must be served on the adverse party the same length of time previous to making the same to the Court. ^ , 1 Ch. Rule 60. » Ch. Rule 61. 164 PEBLIMINAEY PEOCBEDINGS. 165 Causes must be noticed for hearing for the first day of term, but if they are not in readiness for hearing in time to notice it for the first day it may be noticed for a subsequent day in term and placed at the foot of the calendar. If the bill, has been taken as confessed, it may be heard out of its regular order. ^ Note of Issue. — The solicitor noticing the cause must furnish the Eegister with a note of issue, specifying the class to which the cause belongs, and the time from which it is entitled to priority, four days previous to the commencement of the term.* The stated terms of the circuit court for each county are to be deemed the stated terms of the circuit court in chancery for such county ; but each Circuit Judge may hold as many adjourned and special terms of the circuit court in chancery in any county within his judicial circuit as the business therein may require.^ The equity calendar at any regular term of the court can not be taken up until the issues of fact upon the calendar have first been disposed of unless by special order of the Court. ^ Case and Abbreviations of Pleadings. — Wheii a cause is heard or submitted, if the parties do not agree upon a case contain- ing a brief statement of the pleadings and proofs, the complain- ant must famish the Court with a case. It should state the time of filing the bill and other pleadings, the names of the original parties in full, the change of parties if any has taken place, and a brief history of the proceeding in the cause. But the abbreviation of the pleadings should not exceed one- sixth of the number of folios contained in such pleadings.' Method of Making up the Calendar. — In making up the calen- dar the causes are to be arranged in the following classes : (1) ; Causes to be heard on bills taken as confessed, which are » Ch. Rule 64. * Ch. Rule 64. ^ 2 Comp. L. 1871, ? 5073. " lb. ? 5074. ' Ch. Rule 62. 166 PEELIMINAEY PROCEEDINGS. entered according to priority from the date of the order to take the bill as confessed. (2) ; Pleas and demurrers which have priority from the time of JBLling the same. (3) ; Causes to be heard on bill and answer which take priority from the time when the answer was put in. (4) ; Causes to be heard on the pleadings, or pleadings and proofs, which have priority from the time when the replication was filed. Causes to be heard on exceptions, or upon the equity reserved in a decretal order, must be placed in the class to which they belonged before the decretal order or reference, and according to their priority at that time. Causes for rehearing are to be arranged in the same manner. The Court in hearing calendar causes, however, may, in its discretion, give a preference to any particular cause or descrip- tion of causes. Mortgage cases of the fourth class are entitled to a prefer- ence over any other causes of the same class unless the defend- ant, before the hearing, shall file with the Eegister an afldavit of merits, and that his answer was not put in for delay. The filing of this affidavit should be noted on the calendar.* The foregoing rule does not apply to cases where testimony is to be taken in open court. They must be noticed for the first day of term like other cases. ^ Pwpers Necessary to be Furnished on Searing. — When the cause is heard or submitted on plea or demurrer, or on bill and answer, except on mortgage and partition causes where com- plainant's rights are not contested, the Court must be furnished with copies of the pleadings and an abbreviation thereof, not exceeding one-sixth of the number of folios contained in the original. If the cause is heard on bill, answer and replication, or on pleadings and proofs, in addition to the case required by the 62d Eule, the Court should be famished with copies of the plead- ings, and of the depositions, if any, and with short abstracts of the exhibits. » Ch. Rule 63. » Dunn V. The Superior Court, 29 Mich. 228. PEELIMINABY PEOCEEDINGS. 167 On a rehearing, a copy of tlie decree or order reheard miist be furnished and also copies of the pleadings, abstracts, case, depositions, etc., on which the same was founded.^" Upon 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 the pleadings, as are material, must be furnished. And in all cases the necassary papers must be delivered to the Court when the hearing commences, i" By Whom Papers to he Furnished. — If the cause is heard or ' submitted on plea or demurrer, or on exceptions to a commis- sioner's report, or on a rehearing, the necessary papers must be furnished by the party so pleading, etc., or who obtained the' rehearing. In all other cases the papers must be furnished by the com- plainant except that on an original hearing upon pleadings and proofe, each party must furnish copies of the testimony and abstracts of the exhibits on his part only. Each party must also deliver to the Court and to the adverse party, a copy of the points on which he relies ; and he may also deliver to the Court and to the adverse party a draft of the minutes of the decree to which he conceives himself entitled. 11 Default at the Hearing. — If the cause is noticed for hearing by the defendant, and the complainant does not appear, or fails to furnish the necessary papers under Eule 66, the bill may be dismissed with costs, i^ If noticed on the part of the complainant, and the defend- ant fails to appear, or famish the necessary papers, the com- plainant may have such decree as he is entitled to.i ^ But he can take no decree except such as would be author- ized by the state of the pleadings had there been no default, i* 1 Ch. Rule 65. 1 » Ch. Rule 66. >2 Ch. Rule 68. i» Hardwick v. Bassett, 25 Mich, 149. 168 ^ttEAElNG OP THE CAtTSE. Motion to Suppress Depositions. — ~Eo deposition ■will be sup- pressed on tlie hearing of a cause for irregularity or informality in the taking of the same, but the question must be brought before the Court on a special motion for that purpose, before the cause is brought to a hearing.(a) Manner of Submitting Causes. — Where parties do not wish to argue, the cause orally, they may submit the same to the court upon written arguments signed by them or their soli- citors. The submission must be delivered to the Register with the necessary copies and papers mentioned in rules 65 and 66. The Eegister should mark the paper^ and note them in his minutes as on a hearing. But he must not enter the submis- sion until the said papers are furnished.** SECTION II. HEADING OF THE CAUSE. Under our statute there are two methods of hearing a cause in chancery: First; By an examination of the witnesses in open court, as in a court of law, without a jury. Second; On the pleadings and proofe. 1. Where Testimony is Taken in Open Court. — If either party elects to examine the witnesses in open court, notice should be given to the adverse party of such intention, and proof of ser- vice thereof should be filed with the Eegister. If there are valid reasons against the adoption of such a course the adverse party on receiving such notice should apply to the court on petition, and notice showing cause in opposition thereto. It is not a mere matter of discretion. * ^ {a) Ch. Rule 54. 1* Ch. Rule 69. 1" People V. Judge of Barry Circ't. 27 Mich. 170. HEARING OF THE OAtTSE. 169 The Circuit Judge at chambers has no power to order proofe to be taken before a commissioner after election made to proceed in open court. ^ ^ The statute provides that either party to a cause in chan- cery shall have the right to an examination of, all the witnesses in the case in open court, as in a suit at law, if within ten days after the cause is at issue he gives notice in writing to the opposite party of his intention to claim such right, in which case no commission shall issue, nor examination of witnesses be had before a circuit court commissioner; but the cause shall be heard in its course on the calendar by examination of witnesses in open court, unless the Court, on cause shown, shall otherwise direct, as ki a suit at law.^^ There may be many reasons why the Court should exercise its discretion in ordering a cause to be heard before a commis- sioner : For instance, where it was apparent that the time required to hear it would seriously interfere with hearing the causes on the calendar; or where it would be impossible to obtain the attendance of material witnesses at the time of the hearing ; or where on grounds of public policy the facts were of such a nature, that it would be improper to hear the exam- ination in open court. Notipe of hearing must be given for the first day of term. The provisions of Chancery Rule 64 do not apply where the witnesses are to be examined in open court, i* Under this practice all the testimony offered must be admitted the same as before a commissioner. If objected to, it must be taken and admitted subject to the objection, and which will be passed upon at the hearing; and no matter how disposed of at the hearing, the case if appealed will bring up the entire testimony, where all the questions may be considered and passed upon in the Supreme Court. " Eslow V. Albion, 27 Mich. 4. ' ' 2 Comp. L. 1871, ? 5093, as amended by Laws of 1877, p. 17; also Ch. Rule 47. 1' Dunn V. Superior Court, 29 Mich. 228. 22 170 HEARING OF THE CAUSE. The right of appeal is absolute, and the action of the Appellate Court is equivalent to a re-hearing. If in the appel- late tribunal the bill is regarded as a proper one, the parties are entitled to have a decree based upon the merits. A refusal to admit evidence by the Circuit Court would prevent this, and the case would be left in a condition where the Appellate Court could not pass upon it as justice would require. 1^ 2. WTiere the Cause is Heard upon Pleadings and Proofs. — Where the cause is heard upon pleadings and proofs, the complainant opens, and states the substance of the bill, and the defendant's answer. He then states the case and the mat- ters in issue, and the points of equity arising therefrom. He also reads such depositions anfi parts of the defendant's answer as are considered essential, and makes his argument.- The defendant's counsel then goes through the same process, and the complainant concludes the argument. Where a replication to the answer has been filed, and the cause is heard upon pleadings and proofs, the allegations set up in the answer, and which are not responsive to the bill, must be proved, or the defendant cannot avail himself of them at the hearing.^" Where a bill, cross-bill, answers, and depositions are heard together, and both parties have material allegations to sustain, the complainant in the original bill is entitled to the opening and the close. Where there are two defendants who set up adverse claims, the complainant opens. The defendant who sets up a claim against the other then follows, and the other defendant replies. But there is no reply between the defendants unless directed by the Court. Upon a plea or demurrer the defendant holds the affirmative and opens the argument. When the cause is heard upon exceptions to a commis- sioner's report, the party excepting opens the argument. But " Hewlett V. Shaw, 9 Mich. 347; Bilzv. BUz, 37 Id. 116: Lamb v. Jef- frey, 41 Id. 719. »o I Barb. Ch. Pr. 317. HEAEING OP THE CAUSE. 171 \ where both parties except, the complainant's counsel is first heard. ^1 No other evidence is permitted to be read except it be mat- ters of record to which the answer refers, and provable by the record itself, or documents stated in the bill which prove themselves, and not denied by the answer.^' When, after a cause has come on to be heard, it is discov- ered that, through inadvertence, no replication has been filed, the court, although witnesses have been examined, will permit one to be filed wmwc pro tmw.^^ The general rule, however, is that unless a replication be filed, the complainant, if he brings the cause on to a hearing, must submit to take the answer as wholly true.^^ The Court is not bound by the opinion of the counsel con- cerning the theory of a bill for relief, but by the case actually made by the bill.^* Objections to a decree which relate to details of practice must be raised at the circuit. ^^ The decree .should follow the case pleaded, and the allega- tions of the bill. 2' Private Hearing. — Causes are not always heard in public. Wherever there are valid objections to a public hearing, the cause may be heard privately. In the Matter of Lord Portsmouth,^'' Lord EldAm, before going into his private room for the further hearing of the petition and affidavits privately stated that it was the uni- «i 1 Barb. Ch. Pr. 317. »2 Ch. Rule 56 ; Bachelor v. Nelson, Walk. Ch. 449 ; Jerome v. Seymour, Harr. Ch. 255 ; 1 Barb. Ch. Pr. 318. 2 8 1 Barb. Ch. Pr. 251, 319 ; Hardwick v. Bassett,-25 Mich. 149; Cooper's PI. 331-5; Smith v. West, 3 Johns. Ch. 363. See U. S. Eq. Rule 66. 2* Geney v. Maynard, 44 Mich. 578. «5 Bundy v. Youmans, 44 Mich. 376 ; Bamebee v. Beckley, 43 Id. 613. "« Livingston v. Hayes, 43 Mich. 129, and cases cited; Thayer v. Lane, Walk. Ch. 200, and note by Judge Campbell in annotated edition by him; Hay- ward V. National Bank, 96 U. S. 611. »' Coop. Rep. 106; 1 Dan. Ch. Pr. Chap. xxv. p. 984; 1 Barb. Ch. Pr. 319. 172 aBAEmG OP THE CAUSE. form practice in Chancery, in the case of family disputes, on the application of counsel on both sides, to hear the same in the Chancellor's private room. But subsequently in Ogle v. Brandling, it was decided that the consent of counsel was not necessary.(a) Hearing Cause out of its Order. — The hearing of calendar causes out of their order is discretionary with the Court. ^* Original and Oross-Bill. — The original and cross-bill should be heard together, but an order must first be obtained. 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 dismissed. And a cross-bill for discovery, taken jm-o confesso, will be ordered on motion, to be read on the hearing of the original cause ^ ^ It is discretionary with the Court to postpone the hearing on the original bill until the cross-bill is ready, that both may be heard together, but this will be refused where there is unnecessary delay. ^^ ISee title " Oross-BiU."^ Searing Two Causes Together. — In cross-suits, and also in other suits where there are two causes between the same parlies, involving the same point in dispute, and where it is material that both should be heard together, if both are set down for hearing, but stand at a distance from each other, the Court will cause them to be heard at the same time, and if necessary, make an order that the depositions taken in one cause be read in the other. ^^ Objecting to Jurisdiction. — If a defendant puts in his answer and goes, to hearing without objecting to the jurisdiction of the (a) 2 Russ. & My. 688. 2 8 Ch. Rule 63. P 43 a» Story's Eq. PI. g 395; Cooper Eq. PI. 87-8; 2 Dan. Ch. Pr. Chap. 34, >. 1553; 1 Hoff. Ch. Pr. § 352; 1 Barb. Ch. Pr. 320; Corey v. Gerteken, 2 Mad. See U. S. Eq. Rule 72. »» Beauchamp v. Putnam, 34 111. 378. »i 1 Barb. Ch. Pr. 320; Nevil v. Johnson, 2 Vem. 447. HEAEING OP THE CAUSE. 173 Court on the ground that there is a complete remedy at law, it is too late to make the objection.^^ Objection for Want of Parties. — The proper time for taking an objection for want of parties is upon opening the pleadings, though after the cause has been heard, the Court will some- times cause the case to stand over for the purpose of amend- ment.*^ " The objection usually proceeds from the defendant, as the complainant cannot postpone the cause without his consent. The exception is where the complainant was ignorant of the persons whose claims could affect the parties on record.** An objection, however, at the hearing, for want of a parti- cular party may be obviated by the complainants waiving the relief he is entitled to against such party.** As a decree made in the absence of proper parties may be reversed, and at all events will not bind those who are absent^ or those claiming under them, great care should be taken by the complainant to have the necessary parties before the court before the cause is brought on.*^ Ordering Cause to Stand Over to Add Parties. — If the objec- tion for want of parties is distinctly taken by the defendant by plea, demurrer or answer, and the complainant goes to a hear- ing without amendment, the. Court may, in its discretion, refase to permit the cause to stand over, and may dismiss the bill, with costs.*' As a general rule, however, where the complainant is not in fault, the Court will order the cause to stand over on pay- ment of costs, in order to enable him to amend his bill.^* s2 Le Roy v. Piatt, 4 Paige, 77. »8 Jones V. Jones, 3 Atk. 111|; Story's Eq. PI § 236 and note 5; Cooper's Eq. PI. 32, 185; Mitf. Eq. PL 180; 1 Barb. Ch. Pr. 320; 2 Dan. Ch. Pr. Chap. V. ^ 3, p. 290 ; Palmer v. Rich, 12 Mich., 414. 8* 1 Barb. Ch. Pr. 320; Innes v. Jackson, 16 Ves. 356. 8 5 Story's Eq-. PI. § 228; 1 Barb. Ch. Pr. 320 ; Pawlet v. Bishop, 2 Atk. 296; Mitf. Eq. PI. 179, 180. 3 6 Story's Eq. PI. J 72; Cooper's Eq. PI. 33, 34; 1 Dan. Ch. Pr. Chap. v. ? 1 p. 190. « ' Van Epps v. Van Deusen, 4 Paige, 64 ; 1 Hoff. Ch. Pr. 497. •8 1 Dan. Ch. Pr. Chap. v. § 3, pp. 290, 291 ; 1 Barb. Ch. Pr. 321 ; Golt v. Lasnier, 9 Cow. 320; Thomas v. Gain, 35 Mich., 165. 174 HBAEINa OP THE CAUSE. Where a cause is directed to stand over for the purpose of adding parties, and the complainant neglects to proceed under the order, the defendant may move to dismiss the bill for want of prosecution. 3^ Ordering Cause to Stand Over for Proofs. — Leave will also be given by the Court at the hearing for the cause to stand over for the purpose of applying defects in the testimony, under special circumstances. This is more especially the case where the formal proofs skre deficient. [For illustrations, see 1 Barpour Oh. Pr., pp. 322-323.] ^^ Default at the Hearing. — If the cause is noticed by the defendant, and the complainant does not appear, or furnish papers under Eule 66, the bill may be dismissed, with costs. If noticed by the complainant, and thf; defendant fails to appear, or furnish papers under said rule, the complainant will be entitled to have such decree as he is entitled to under the pleadings had there been no default.(a) Dismissing Bill at the Hearing. — If the bill is dismissed at the hearing upon a formal defect in the pleadings, and not upon the merits, it should be dismissed without prejudice to the com- plainant's right to institute a new suit if he so desires.*" Courts also permit this course in cases where the complain- ant appears to have an equity which the bill, from some infor- mality, has not properly brought before the court.* ^ Unless the dismissal is accompanied with such a direction, it may be pleaded in bar to a new suit.*^ A bill cannot be dismissed without prejudice where a new bill must necessarily cover the same ground.*^ [For illustrations of this rule, see 1st Barbour's Chancery Practice, pp. 323-324.] 8» 1 Barb. Ch. Pr. 322 ; 1 Hoff. Ch. Pr. 498 ; Seaton on Decrees, 363. (a) Ch. Rule 68; Hardwick v. Bassett, 25 Mich. 149. 40 Story's Eq. PI., ?? 456, 793; Coop. Eq. PI. 270; Mitf. Eq. PI. 238, 239. «i Wilson V. Eggleston, 27 Mich. 257. " Story's Eq. PI. ? 793; Mitf. Eq. PI. 239, 240; Crosier v. Acer, 7 Paige, 137 ; 1 HofiF. Ch. Pr. 500. *« Gale V. Gould, 40 Mich. 515. HEAlilNG OF TH£ CAUSE. 175 In general, when a bill is ordered to be dismissed upon a contingent order, the rule is that such orders are not conclu- sive unless the words " without further order " are added, and that where such words are omitted the defendant must apply for an absolute order of dismissal.** Betaining Bill with Liberty to Bring an Action. — The Court will, in some cases, notwithstanding it decrees a dismission of the bill, reserve to the complainant the right to bring an action at law. The Court also, instead of immediate dismis- sal, will direct the bill to be retained for a given time, with liberty to proceed at law, and that if the complainant fails to exercise the privilege, that the bill be dismissed.* « Examination of Parties by Court. — In all cases whatever which are at issue on pleadings and proofs, the Court may call upon the parties thereto, or any witness to testify orally in open court, and in cases of divorce, whether at issue or stand- ing on the bill taken as confessed, the Court may, in like man- ner, call upon complainant or any witness to so testify.*^ This rule is not suspended by Section 5969 of the Compiled Laws, which provides that neither husband nor wife shall be examiaed as a witness for or against the other without the other's consent.* ' ** Seaton on Decrees, 357: 2 Dan. Ch. Pr. Chap. xxxv. g 2, p. 1593 ; 1 Barb. Ch. Pr. 324. OtAer Cases of Dismissal : Kerr v. Lansing, 17 Mich. 34; Westcott v. Minn. Min. Co., 23 Id. 145 ; Comstock v. Comstock, 24 Id. 39 ; Wilson v. Eggleston, 27 Id. 257 ; Brewer v. Dodge, 28 Id. 3o9 ; Collar v. Harrison, lb. 518 ; Gale v. Gould, 40 Id. 515 ; Connors v. Detroit, 41 Id. 128 ; Lamb v. Jeffrey, lb. 719. *5 1 Barb. Ch. Pr. 324, 325. *' Ch. Rule 99. *' Hamilton v. Hamilton, 37 Mich. 603; 2 Comp. L. 1871, g 4927. CHAPTEE XV. FEIGNED ISSUES. Nature of. — ^A feigned issue is an issue brought by consent of parties or by direction of a Court of Equity, or of such courts as possess equitable powers, to determine, through the intervention of a jury, some disputed matter of fact which the Court is unwilling to decide without the benefit of a cross-ex- amination of the witnesses before a jury.i This practice is especially desirable in States where the Chancellor and the common law Judge is the same person, as is the case in this State. There are two methods of trying questions of fact by a jury on issues joined in Chancery, viz: By feigned issues awarded under the old practice, and by issues of facts under the statute.* The former practice has been abolished in Michigan. Issues are usually ordered in the following cases : Whether a certain bond was intended as an indemnity for services, or a gift ; To try the question of forgery of an instrument where one witness has sworn to its genuineness; To determine whether a son survived his father when both perished at sea; Whether a deed was intended as a mortgage, or was made to defraud creditors; A question of partnership; Test of heirship ; Insanity of grantor in a deed; And in any proceeding involving ques- tions of insanity.* • 1 Hoff. Ch. Pr. 502; 1 Barb. Ch. Pr. 446; 1 Bouv. Law Die. 578; 3 Black. Com, 452. 2 Ch. Rule 47; Milk v. Moore, 39 111. 588. » 1 Hoff. Ch. Pr. 502; Russell v. Paine, 45 111. 350; Panky v. Raum, 51 Id. 88 ; Austin v. Bainter, 50 Id. 308. 176 FEIGNED ISSUES. 177 The statutes of Michigan provide that if there be an issue of fact which in the opinion of the Court renders the interven- tion of a jury necessary or proper, the Court shall, on request of either party, order a jury impaneled for the trial thereof, and the verdict may be used upon the hearing of the cause.* In cases where feigned issues have been in use, it is now provided that the issue shall be made by presenting the ques- tions to be tried in a simple form upon the facts. The issue, unless agreed upon, must be framed by the Circuit Judge, and in all cases must be approved by him.' As a general rule such issues can only be granted at the hearing. It should, therefore, not only be confined to facts put in issue by the pleadings, but to facts concerning which some testimony has been given. As the object is to aid the Court, it may disregard the verdict.^ The Court may award a new trial not only to satisfy its conscience, but to correct any errors which may have occurred on the trial.' A deposition taken in Chancery cannot be read on the trial of issues by a jury where the witness is personally present at the trial.' The procedure upon the trial of an issue is substan- tially the same as that adopted in trials at law, except where special directions upon the subject have been given by the Court of Chancery.' Where several issues are framed for trial, each issue must be passed on by the jury separately, i" ' 2 Comp. L. 1871, § 5092. » Ch. Rule 47, latter part. ' For general disctission, see Dunn v. Dunn, 11 Mich. 285; Willard v. Magoon, 30 Id. 278 ; Wood v. Wood, 2 Paige, 109. ' Milk V. Moore, supra; 1 Barb. Ch. Pr. 456. ' Dunn V. Dunn, supra. » 1 Barb. Ch. Pr. 451, 466, 467. »» Dunn V. Dunn, 11 Mich. 285 ; Brink v. Morton, 2 Clarke flowa) 411 ■ Hall V. Doran 6 Id. 433. v / . Note.— /» cases of Partition : 2 Comp. L. 1871, g 6281; Hoffman v. Beard 22 Mich. 69 ; Wallace v. Harris, 32 Id. 391. As to Waste : 2 Comp. L. 1871, \ 6369; Wallace v. Harris, supra. ^ 23 178 PEIGNED ISSUES. Drawing up and Settling Issues. — For the old practice the reader is referred to the precedents in the 3d. "Vol. of Bar- bour's Chancery Practice, p. 484-5 ; The 3d. Vol. of Hoffman's Chancery Practice, p. 147, and the 2d. Vol. of Chitty's Plead- ings, p. 236 ; 2 Smith's Chancery Practice, p. 80. Upon the granting of an order directing the issue to be tried, the parties should agree upon its frame, and present it to the Court for approval. CHAPTEE XVI. DECREES AND DECRETAL OEDEES. Section 1. Nature, Uses and Kinds. 2. Forms. 3. Drawing Up, Settling, Entering and Enrolling. 4. Rectifying Decree. Before Enrollment. After Enrollment. 5. Enrollment. 6. Decrees Pro Confesso. 7. Decrees by Default. 8. Decrees by Consent. SECTION I. NATURE, USES AND KINDS OP DECEEES. A decree is a sentence or order of the Court corresponding to the judgment of a court of law, by which the rights of the parties to the suit are determined and settled _ according to equity and good conscience. Decrees are of two kinds — Interlocutory and Final. Interlocutory Decree. — An interlocutory decree is properly a decree pronounced for the purpose of ascertaining matter of law or fact preparatory to a final decree. Therefore, when some material fact is omitted, or so imperfectly stated in the pleadings that the Court is unable to determine finally between the parties, but is compelled to order a reference or a trial upon a feigned issue, the decree entered is called interlocu- 179 180 DECREES. tory. The Court in the meantime suspends its final decree for a future hearing until it is enabled to decide finally. ^ The further hearing is then termed a hearing upon further consideration, or upon the equity reserved. In strictness, a decree is interlocutory until it is signed and enrolled. ^ The most usual ground for not making a perfect decree in the first instance is the necessity for a reference to take accounts, compute amounts due, make inquiries, examine into titles, sell estates, and adjust other matters necessary to be dis- posed of before a final decision. Final Decree. — When a decree finally decides and disposes of the whole merits of the cause, and reserves no further ques- tions or directions for the further judgment of the Court, it is a final decree, even though some further proceedings are to be had before a commissioner — for example, a decree of foreclos- ure and sale on a bill to foreclose a mortgage.' , _ But it is not necessary that a decree to be final should dis- pose of all of the merits.* A decree may be final as to only one of several defendants. The effect produced by an adjudication upon the rights and interests of the parties is a better test of the question, whether it be merely an interlocutory order or a decree, than the stage of the cause at which it is made ; and wherever a legal right is divested by an order of a Court of Chancery, it is appealable.^ Where a decision is announced, but no decree is actually drawn up or filed, there is no legal determination of the cause. ^ The distinction between a final and interlocutory- decree is in practice, rather a nice one, and frequently becomes of great importance to parties on the question of the right of appeal. ' Seaton's Forms of Decrees 2 ; 1 Barb. Ch. Pr. 327 ; Lewis v. Campau, 14 Mich. 460 ; Barry v. Briggs, 22 Id. 201. And see title " Appeals." " 2 Dan. Ch. Pr. Chap. 26, 987 ; Seaton's Forms of Decrees, 2. » 1 Barb. Ch. Pr. 330 ; Lewis v. Campau, 14 Mich. 460. « 1 Rand. 421. B Barry v. Briggs, 22 Mich. 201. • Newbold v. Stewart, 15 Mich. 155. DECREES. 181 In Ems V. Sutherland,'^ our Supreme Court condemn the practice of making interlocutory decrees finaj in form, in anticipation of the commissioner's report, or inserting direc- tions as to what future decrees or orders should be rendered. The practice originated in jurisdictions where such orders are appealable, and may have had some use in obtaining as full directions as possible, for future conduct, from the appellate court. But under our practice it not only leads to confusion, but sometimes also to splitting up the final decrees themselves by adjudicating piecemeal, instead of in one decree. [For fuller discussion on this subject, see title " Appeal."] Between Co-Defendants. — ^Por the purpose of preventing multiplicity of suits, Courts of Equity will make a decree as between co-defendants, grounded upon the pleadings and proofs between complainants and defendants.* Decree Requiring Further Order. — There are many cases of decrees, which, though final in their nature, require the con- firmation of a farther order of the Court before they can be acted upon. The most ordinary case of this class is that of a decree for a foreclosure of a mortgage. Although there is usually but one final decree in a single cause, yet in some cases it is necessary to have more than one. (a) But the Court below cannot make' a second decree in the cause while the first is appealed from and undetermined.(6) Reservation of Liberty to Apply. — Though it "is usual for the Court in making a decree, to make a final disposition of the case, yet it sometimes happens that a decision upon all the points cannot be pronounced until a future period, in which case the decree will declare that the party interested will be ' 9 Mich. 148; And see Barry v. Briggs, 22 Id. 207; Patterson v. Hop- kins, 23 Id, 541. 8 Thurston v. Prentiss, 1 Mich. 198; Elliott v. Pell, 1 Paige, 260; Tones v Grant, 10 Id. 350. [a) Brown v. Bronson, 35 Mich. 419. (b) Beal v. Chase, 31 Mich. 490. 182 DECREES. permitted at the proper time to apply to the Court, as they may be advised. A decree with such ^ liberty reserved, is still a final decree, and when signed and enrolled, may be pleaded in bar to another suit for the same matter.' Applications under such a reservation may be made either by motion or petition ; but generally speaking, motions which have for their object to give effect to decrees and orders, should be confined to eases where the proposed order arises out of recent proceedings suggesting no doubt. ^ Who Bound By.^-As a general rule, all who are parties and privies to a decree are bound by it, and none others.*" Nor can a decree be rendered against any party, before the Court, settling any right which can only be lawfully settled by reaching an absent defendant. Who may take advantage of. — A party to a suit may some- times have the benefit of a decree without appearing at the hearing. In a creditor's suit where the complainant dies after decree, another creditor may obtain an order for liberty to file a supplemental bill if the representatives of the deceased com- plainant do not revive within a limited time. So when a com- plainant is entitled to relief against both defendants, and one should indemnify the other, who is decreed to pay the com- plainant, the Court will permit that defendant to prosecute the decree against the other.* ' Decretal Orders. — Decrees and decretal orders are often con- founded. A decree, as before remarked, is the judgment of the Court made upon the hearing. A decretal or interlocutory order is an order in the nature of a decree made upon motion or petition either before or after the hearing. '^ • 1 Barb. Ch. Pr. 332; 2 Dan. Ch. Pr. Ch. xxvi, ? 1, 993; Shipbrooke v. Hin- chinbrook, 13 Vesey, 393. >» Buck V. Shennon, 2 Doug. 176; Greiner v. Klein, 28 Mich. 17, 18; Stone V. Welling, 14 Mich. 515; Mich. State Bank v. Hastings, 1 Doug. 226; Reed v. Baker, 42 Mich. 272 ; Avery v. Ryerson, 34 Id. 367 ; Brown v. Ttiomp- son, 29 Id. 72; Brown v. Wyncoop, 2 Blackf. 230; Com. v. Cambridge, 4 Mass. 67; Mallow v.Hinde, 12 Wheat. 193. " Walker v. Preswick, 2 Ves. 622 ; 1 Barb. Ch. Pr. 336. i» Wing V. Warner, 2 Doug. 292; 1 Barb. Ch. Pr. 337; 2 Dan, Ch. Pr. Chap, xxvi, 987. And see " Appeals." DECEEES. 183 Evidence of Decrees. — Journal entries of interlocutory decrees and orders in chancery are competent evidence of the sartie without producing the originals.^ ^ Stipulations between the parties or signed by the party to be bound, and iiled with the papers in the cause, may be con- sidered in determining the true interpretation of the decree. '* The force of a final decree upon the merits, and upon pleadings and proofe, cannot be avoided by a voluntary dis- missal of the bill by the complainant, entered without notice, and without leave of the Court. ^ ^ A second decree granted while an appeal from a prior one in the same cause was pending, and made as an additional decree, upon no new hearing or proofs, is unwarranted. ^^ The validity of a decree cannot be attacked collaterally for mere irregularities which do not go to the jurisdiction. * ' A purchaser under a decree must ascertain at his peril whether the decree was warranted or not. The rule of caveat emptor applies in all its rigor to judicial sales of real prop- erty.i* A decree entered within two weeks after the cause was put at issue, when the record failed to show that the same was heard by stipulation, or that defendant was present or had notice thereof, is premature.* ^ Where a party has acquiesced in a decree which has been appealed from, the Supreme Court on affirming it will not enlarge the relief granted. ^ " A decree ordering a reference to ascertain amounts due a defendant, and granting relief on condition of their re-pay- " Lothrop V. Southworth, 5 Mich. 436. 1* Thayer V. McGee, 20 Mich. 195. 15 Newark v. Newark, 22 Mich. 292. i« Beal V. Rice, 31 Mich. 490. ' " Torrans v. Hicks, 32 Mich. 307; Pettiford v. Zoellner, 45 Id. 358. i« Ritson V. Dodge, 33 Mich. 463; Rorer on Sales, § 459; The Monte Allegre, 9 Wheat. 616; Walden v. Gridley, 36 111. 532; Creps v. Baird, 3 Ohio St, 277; Bickley v. Biddle, 33 Pa. 276. 1* McKinney v. McKinney, 36 Mich. 37, 2» Match T. Hunt, 38 Mich. 1. 184 DECEEES. ment, should fix the time within which re-payment is to be made after confirmation of the report on the reference, and in default thereof the bill should be dismissed.'" The decree of a court in a matter of reference is based on the testimony taken before the referee, and not on his con- clusions, when they are excepted to.^^ Entered in Vacation. — If a decree is entered in vacation, notice must be given to the opposite party, and the forty days within which an appeal must be taken, runs from the date of such notice. ^^ When a defendant dies after the submission of a cause, the decree may be entered nwncpro tunc, as of the day of hearing. 2* Bule as to Parties. — The rule which prohibits a Court of Chancery from making a decree unless all those who are sub- stantially interested be made parties to the suit, is inapplicable where it is not in the power of the complainant to make them parties. 2^ Infants. — No decree can be entered against an infant on a bill taken against him as confessed, or on the answer of his guardian, admitting the facts stated in the bill. The case must be made out by proofs. ^^ Under the English practice, on a bill filed for specific per- formance of a contract respecting land situate out of the king- dom, if the parties are resident within the territorial jurisdic- tion of the Court, a personal decree might be made compelling a defendant to perform. The principle being, that though '^ Match V. Hunt, supra. 82 Heath v. Waters, 40 Mich. 458. s» McClung V. McClung, 39 Mich. 55; People v. Wilson, 12 Id. 26 ; 2 Comp. L. 1871, M 4966-4969. S4 Gundermanv. Gunnison, 39 Mich. 318; 2 Dan. Ch. Pr. Chap. xxvi. ? 3, 1016, 1017; Seaton's Forms of Decrees; also Seaton on Decrees, 1137; Freeman on Judgments, (2d. ed.) §§ 56, 57 ; Campbell v. Mesier, 4 Johns. Ch. 334 ; Wood v. Keyes, 6 Paige, 478 ; Tapley v. Goodsell, 122 Mass. 176. 25 Mich. State Bank v. Hastings, 1 Doug. 226. See U. S. Equity Rules 47, 48. s« Thayer v. Lane, Walk. Ch. 200 and note; Chandler v. McKinney, 6 Mich. 217; Smith v. Smith, 13 Id. 258; Carrell v. Potter, 23 Id. 377; BaUentine V. Clark, 38 Id. 395. DEOEEES. 185 the Court cannot bind the land itself by their decree, yet they can bind the conscience of the party regarding the land.^' But under our statute limiting the jurisdiction of the Cir- cuit Courts to their respective counties, it may well be doubted whether such power can be exercised by them.^* Formal objections to the frame of the decree should be made on the settlement of the same.^^ A decree should not be broader than the bill warrants, (a) Impeaching Decree for Fraud. — When a decree establishing title to real estate is sought to be impeached by bill, as having been obtained by fraud and collusion, it must be brought within a reasonable time, having reference to the nature and circumstances of each case.^" Delays resulting from family or confidential relations are exceptional. (&) A final decree, which in a great measure decides the merits of the case, will not be made until the case is in readiness as to all the defendants, and a final disposition can be made of the same.^' Installments. — When money is payable by installments, no decree can be lawfully made for any of them until an opportu- nity has been afforded to contest each default. ^^ The proceeding for a further decree upon an additional installment after payment of a prior decree, is essentially a new " 1 Story's Eq. Jur. g 743; Sutphen v. Fowler, 9 Paige, 280; N. Ind. R. R. Co. V. Mich. Centr. R. R. Co., 15 How. 244; Cleveland v. Burrill, 25 Barb. 532; Massie v. Watts, 6 Cranch, 148; Penn v. Hayward, 14 Ohio, U. S. 302; Chicago Leg. News, Oct. 14, 1876, p. 29. 28 2 Comp. L. 1871, ? 5057, as amended by Laws of 1877, p. 61. " Wright V. Wright, 37 Mich. 55. (a) Creasy v. St. George's Society, 34 Mich. 51. "> Campau v. Van Dyke, 15 Mich. 371; Disbrow v. Jones, Harr. Ch. 102; Street v. Dow, lb. 427 ; De Armand v. Phillips, Walk. Ch. 186, note by Judge Campbell, citing cases. Compromise of the fraud : See Craig v. Bradley, 26 Mich. 355. {b) Wright V. Wright, 37 Mich. 55. «i Graham v. Elmore, Harr. Ch. 265; City Bank v. Bangs, 2 Paige, 572; Vermillyea, v. Odell, 4 Id. 122. " Perkins V. Perkins, 16 Mich. 162. See Mortgage Foreclosure. 186 DECBEES. suit in all respects except form; and the rights of the parties can only be determined on notice by proofs, as in other cases. ^ ' A defendant in a subsequent suit regarding the same prop- erty, cannot go behind or call in question an absolute decree of foreclosure against him to introduce defenses that were open to him, if at all, in the equity proceedings. 8* A decree awarding damages in an injunction suit is con- clusive of the amount of damages in a subsequent action upon the injunction bond.^^ Municipal courts, though not inferior tribunals, are limited in their jurisdiction by the residence of the parties, and while their jurisdiction should be shown on the record, their judg- ments and decrees are binding until reversed, even if it is not shown. ^6 Where leave is given to dismiss a bill conditionally, the defendant may, until the condition is complied with, consider the case as in or out of court, at his discretion, and may either proceed in it or consider it dismissed, and apply to the Court to enforce the payment of his costs.*' The^ enrolled decree and the proceedings in the suit consti- tute the record in the case, and when any part of it is read in evidence by one party, every other part of it may be read by the opposite party. ^* Non-Besidents. — When a non-resident appears and answers after decree, the only effect is to vacate the decree as to him, leaving it to stand as against the other defendants.*' Decrees against absent defendants cannot be sustained unless the proceedings to give the Court jurisdiction are regu- «' Brown v Thompson, 29 Mich. 72. '* Hazen v. Reed, 30 Mich. 331; Gould v. Vaughan, lb. 376; Adams v. Cameron, 40 Id. 506. «» Lothrop V. Southworth, 5 Mich. 436. 8« Grand Rapids, N. & L. S. R. R. v. Gray, 38 Mich. 461. ° ' Jerome v Seymour, Walk. Ch. 359. »8 Thayer v. McGee, 20 Mich. 195. «» Griggs V. D. & M. R. R. Co., 10 Mich. 117; Stone v. Welling, 14 Id. 514. DECREES. . 187 lar,* " and no personal decree can be entered against them, when brought in by publication, and who have not been served with process or appeared in the cause.* ^ Interest. — The statute permitting interest on judgments applies to decrees.(a) Where a report on an order of reference needs confirmation before the decree can be carried into effect, interest runs from the date of the confirmation.* ^ Decrees of the Supreme Court need no separate signing or enrolling. They are made complete by entry on the journal.* * Assignment of Interest. — Where the parties in interest to a decree remain the same, and no new rights have arisen, a defendant interested in having the decree executed should proceed by petition for that purpose. But when a third person has acquired an interest in the decree, e. g., by assignment, a bill is necessary to bring him into court.** Enforcement of a decree can be demanded only by those to whom it gives affirmative relief.*^ 4» Bonesteel v. Todd, 9 Mich. 372; King v. Harrington, 14 Mich. 532; Tyler v. Peatt, 30 Id. 63; Goeble v. Stevenson, 35 Id. 185. And see Non-resi- dents, Ante pp. 49-51. *i Innes v. Stewart, 36 Mich. 285. (a) Warner v. Juif, 38 Mich. 662; 2 Comp. L. 1871, ? 6087. 42 Match V. Hunt, 38 Mich. 3; As to bond to pay decree : See Rynearson v. Fredenburg, 42 Mich. 412. *8 Ryerson v. Eldred, 18 Mich, 490. 4* Wallace v. Dunning, Walk. Ch. 416; Griggs v. D. & M. R. R. Co., 10 Mich. 117; Webster v. Hitchcock, 11 Id. 56; Cooper v. .Bigley, 13 Id. 463; Widner v. Olmstead, 14 Id. 124; Perkins v. Perkins, 16 Id. 162; Tong v. Mar- vin, 26 Id. 35; Brewer v. Dodge, 28 Id. 359; Terry v. McClmtock, 41 Id. 493; Mills V. Hoag, 7 Paige, \%: As to form of decree in such cases, see Griggs v. D. & M. R. R. Co., supra. 4' Mickle v. Maxfield, 42 Mich. 304. 188 DECEEES. SECTION II. FOEM OF DEOEEES. Decrees in general consist of three parts: (1); The caption and title, (2) ; The recitals, and (3) ; The ordering part, to which may sometimes be added, (4) ; The declaratory part, which when made use of generally precedes the ordering part.* ^ Caption and Title. — The decree commences with a caption as follows : " State of Michigan. The Circuit Court for the County of , in Chancery. At a session of said court, held at , on the day of , in the year One thousand, eight hundred . Present — ^Hon. , Circuit Judge." *'' This caption should always state the place of holding the court, and the time of the actual entry of such decree. And where a decree iB entered nunc pro tunc, it should appear by some entry on the minutes of decrees, at what time the decree was actually entered. The caption is followed by the title of the cause, and it should be the same as that in the bill.* 8 Recitals. — Formerly decrees contained recitals of the plead- ings in the cause. This practice has been abolished in most of the States, and by rule in the United States Supreme Court.* 5 The following form is used in this State : " This cause having been heretofore brought on to be heard upon the pleadings filed, and proofs taken therein, and the same having been read, and the Court having duly considered the said 4« 1 Dan. Ch. Pr Chap. 26, § 2, 1001; 1 Barb. Ch. Pr. 336; 1 HoSF. Ch. Pr. 556. And see Seaton on '' Forms of Decrees and Orders." «' Ch. Rule 4. <» Barclay v. Brown, 6 Paige, 245; 1 Barb. Ch. Pr. 337. *» U. S. Eq. Rule 186. DECEEES. 189 pleadings, proofs, and arguments, and Mr. A. for the complain- ant, and Mr. B. for the defendant having been heard, on motion of Mr. A. it is ordered and decreed as follows." etc. But where any previous decree or order disposes of any part of the merits of the cause, or is necessary to explain the flnail decree, it must either be recited therein or enrolled there- with.s" It is unnecessary to state in a decree that all the prelimi- nary steps towards maturing the cause for hearing were taken. Ordering Part. — The ordering or mandatory part contains the specific directions of the Court. These must depend upon the nature of each particular case. Where the decree is merely interlocutory, it usually con- tains a reservation of the further matters to be decided, etc. The mandatory clause begins as follows : " It is there- fore ordered, adjudged and decreed, and this Court, in virtue of the power therein vested, doth order, adjudge and decree," etc. The reservation of further directions is not confined to the first decree, but should be repeated in every decree in which it may be necessary to direct a reference. After such reserva- tion the Court will not interfere upon the matter reserved in a summary way, but the cause must be set down for hear- ing. 'i When two or more special motions or applications in the same suit are decided at the same time, or on the same day, or several directions are given by the Court in relation to the suit, the whole should be entered together as one order, unless the Court shall otherwise direct. And when a party is enti- tled to enter two or more orders of course in a suit at the same time or on the same day, they must be entered together as one order.®* «» Ch. Rule 80. 81 Seaton's Forms of Decrees, 36; 1 Barb. Ch, Pr. 338. " Ch, Rule 110. 190 DECREES. Declaratory Part. — ^Where the suit seeks a declaration of the rights of the parties, the ordering part of the decree should be prefaced by such declaration. This, however, is not abso- lutely necessary. ^^ I Whenever a decree is made by consent, it should be so stated in the decree.^* When a bill contains a prayer for general as well as special relief, the Court in making a decree is not confined to the par- ticular relief prayed for, but may grant such as is warranted by the case made out on the bill.^^ A decree must be founded on, and in conformity with the allegations and proofs, and cannot be based upon a fact not put in issue by the pleadings.' ^ [/See ante, p. 21, note 40.] A decree may be made between co-defendants grounded upon the pleadings and proofs between complainant and defend- ants, as it prevents multiplicity of suits,*' but such decree to be binding upon co-defendants, must be founded upon and connected with the subject matter in litigation between the complainants, and one or more of the defendants.'* A final decree upon the merits will not be pronounced until all the parties in interest are before the Court, and the case is in readiness for hearing as to all. If the cause is in readiness as to one defendant, but not as to another, the former cannot notice it for hearing, but if the complainant does not proceed with the cause, he may move to dismiss for want of prosecu- tion. '^ A decree in equity is not binding on any one who is not a party, or who is not in any way represented by or in privity with a party. ^^ ss IBarb. Ch. Pr. 338. ^* Seaton's Forms of Decrees, 375. * «5 1 Barb. Ch. Pr. 339. ^ « Thayer v. Lane, Walk. Ch. 200, and cases cited ; Cameal v. Banks, 10 Wheat. 181. " Thurston v. Prentiss, 1 Mich. 193. »* Elliott V. Pell, 1 Paige, 268. 6 9 Graham v. Elmore, Harr. Ch. 265. '" Greiner v. Klein, 28 Mich. 12; Story's Eq. PI. g 82 to 98. See note 10 Ante. DECEEE8. 191 Nunc Pro Time Clame. — If tlie decree is entered nunc pro tunc, tlie following recital and direction should be inserted: "And it appearing by affidavit, to the satisfaction of this Court, that the complainant A., [or the defendant E.,j has departed this life since the argument of this cause, it is further ordered that this decree be entered nunc pro tunc, as of the day of — — , the day when this cause was argued.* ^ Where, on a bill to redeem, a deed absolute in form is adjudged to be a mortgage, and the mortgagee had, before bill filed, conveyed to one of several defendants, the decree should direct the amount due to be paid to the assignee instead of the mortgagee.^* SECTION III. DEAWING XJP, SETTLING, ENTBEESTG AND ENEOLLING DEGEEE. Drawing Up. — ^When a decree or order is pronounced by the Court, a note or minute of it should be taken down by the Eegister and entered in his minute book. From this the party in whose favor it was made, should at once prepare a draft of such decree as he conceives himself entitled to. If he omits to do so within a reasonable time, any other party interested in having it entered, may draw it up and submit the same to the Court. « 3 Settling. — If the order or decree is special in its provisions, the party entitled to draw it up should submit a copy to the " See Seaton's Forms of Decrees, p. 393; 2 Dan. Ch. Pr. Chap. 26, ?3, 1016-17; Gunderman V. Gunnison, 39 Mich. 316. " Emerson v. Atwater, 12 Mich. 314. «o 1 Barb. Ch.Pr. 340. 192 DECEEES. adverse party to enable ^^m to propose amendments thereto if he thinks proper. The draft, and amendments, if any, should then be sub- mitted to the Court. In practice the majority of decrees and orders are usually agi'eed upon by the solicitors for the respective parties, and submitted to the Court. But in the absence of consent a defendant who has appeared should have notice of the entry of the decree that he may attend and be heard upon the settle- ment thereof.^* Entering. — When the draft of the decree has been settled and allowed, it is in the next place to be entered by the Eegis- ter in the journal. The Eegister makes a minute of the decree to be entered in his minute book, but until it is settled and entered, neither party can have any benefit from the decision.^' A decree is considered as entered from the time it is settled and filed with the Eegister. Where it is stipulated that a final decree may be entered on the report of the commissioner for the amount found due by him, and that it shall not be appealed from, it is conclusive, and no order to confirm is necessary.^ ^ Entering Decree Nunc Pro Tunc. — ^Where one of the defend- ants dies after the argument of a cause and before it is decided, it is usual to enter the decree nun^ pro tunc, so that it may have relation back as of the day of final hearing.^' So where the complainant died after appeal, and after the cause was ready for hearing upon the appeal, the fact of the death being unknown to counsel, the decree rendered upon the appeal will be entered nunc pro tunc, as of a day previous to the death of the complainant and after entering the appeal.*' 6* D. F. & M. Ins. Co. v. Renz, 33 Mich. 298. «B Newbold v. Stewart, 15 Mich. 155; 1 Barb. Ch. Pr. 340-1. «« Bewick v. Alpena Harbor Co., 39 Mich. 700. " Gundennan v. Gunnison, 39 Mich. 318; 2 Dan. Ch. Pr. 1016, 1017; Woodv. Keyes, 6 Paige, 4T8; Tapley v. Goodsell, 122 Mass. 176; Campbell v. Mesier, 4 Johns. Ch. 334; Freeman on Judgments, 2d ed. Jg 56, 57. «8 Vroom V. Ditmas, 5 Paige, 528; 1 Barb. Ch. Pr. 341. DECEEES. 193 Decrees liave also been entered nunc pro tunc after the lapse of years from the time of pronouncing the decree.^' The statute provides that when any Judge has Mled or omitted to sign any decree by him passed, or any record or journal of a court held by him, his successor or any other Judge holding the same court may sign such decree, record or jour- nal and with Like force and effect as if the same had been signed by the Judge who passed the decree, or held the court to which said record or journal belongs.'" Any decree of the old Court of Chancery, or of the circuit court in Chancery, that may have been duly passed and signed and not reversed, vacated or annulled, and which may have failed to be recorded or enrolled, may be directed by the court having the legal custody of the files in the case in which such decree was pronounced, in its discretion, to be recorded and enrolled by the Eegister of the court, nunc pro tunc, and when so recorded and enrolled, the same shall be as effectual as if recorded and enrolled at the end of thirty days after its allowance.'! [•For a full discussion of the general subject, the student is referred to Chapter 26 of Mr. Daniell's Chancery Practice, and Mr. Seaton's work on decrees, and his '' Forms of Decrees," p. 393.] SECTION IV. EECTIFVINGr DECREE. 1. BEEOEE ENEOLLMENT. On Petition or Motion. — Until a decree has been settled and entered, it may be rectified upon application to the Court by " Donne v. Lewis,- 11 Ves. 601; Jessonv. Brewer, 1 Dickens, 371. '» 2 Comp. L. 1871, ?5687. " 2 Comp, Laws 1871, ? 5688. 25 194 DECEEES. petition or motion. Afterwards the remedy is by rehearing, except in a matter of clerical error or form, or where there is a clear mistake. Where the alteration asked for is merely consequential upon the decree itself, or the addition of some direction which has been omitted, the omission will be supplied by' a distinct order without altering the decree' ^j but it must be on notice.'* Applications to rectify decrees should be made within a reasonable time'*; and it should be made to appear that the party has been injured by the irregularity.'^ An amendment to a decree without notice, whereby a party is injured, is irregular.'^ BeSearing. — ^After a decree has been signed and entered, and before it has been enrolled, it is not a record of the Court, and may be altered upon a rehearing ; but it must have refer- ence to grounds which existed at the time when the decree was pronounced,' ' Any party to the record having an interest in the decree may petition for this purpose. Manner of Applying. — A rehearing is applied for on peti- tion. It must state the special matter or cause for the applica- tion, and the points, in which the decree is alleged to be erron- eous, and the nature of the injury' * ; but it will not be neces- sary to state the proceedings anterior to the decree. And if the facts do not appear from the records of the court they must be verified by afldavit. The petition must be accompanied '2 Jerome v. Seymour, Walk. Ch. 359; Bates v. Garrison, Harr. Ch. 221; 2 Dan. Ch. Pr. Chap. 26, g 5, p. 1028; Clark v. Hall, 7 Paige, 382; 1 Barb. Ch. Pr. 352. '» Berry v. Innes, 35 Mich. 189. •* Rogers v. Rogers, 1 Paige, 188; 1 Barb. Ch. Pr. 352. '5 Mich. Ins. Co. v. Whittemore 12 Mich. 427; Creveling y. Moore, 39 Id. 563. '« Berry v. Innes, 35 Mich. 189. y4s to the power of a Court to amend its judgments in general. See Elnery v. Whitwell, 6 Mich. 474. " 1 Barb. Ch. Pr. 354; Benedict v. Thompson, Walk. Ch. 447. '8 1 Barb. Ch. Pr. 355; Mich. Ins. Co. v. Whittemore, 12 Mich. 428. DECEBES. 195 by the certificate of two counsel that they have examined the case, and that in their opinion the decree is erroneous for the reasons mentioned." It should be applied for within the time for appealing unless the laches are excused.*" When a party is entitled to an order to stay proceedings, or for temporary relief until he can give the regular notice of his petition, he may make an ex parte application to the Court or Judge, or commissioner, acting as an injunction master, for an order that the adverse party show cause why the prayer of the petition should not be granted. The adverse party must be served with a copy of the order, petition, aifidavit or certificate on which it is founded, the same length of time as is required in case of special motions, unless a shorter time shall be directed.* ^ Proceedings will not be stayed where the statement of the proposed new evidence is vague, and indicates but cumulative testimony.'^ Deposit. — ^If a rehearing is granted the petitioner will lose the benefit thereof, unless within ten days thereafter he depos- its with the Eegister fifty dollars to answer costs and damages of the adverse party, if the decree or order shall not be mate- rially Varied.*^ On the hearing, the applicant must furnish the Court with a copy of the decree and of the pleadings, abstracts, case, depo- sitions, etc., on which it was founded.** Newly Discovered Evidence. — An application based upon a showing of facts, already on the record, or that would not materially alter or add to the case made on the first hearing, will be denied.*^ " Ch. Rule 81. See U. S. Ct. Eq. Rule 85. 8"- Benedict v. Thompson, Walk. Ch. 446; Warner v. Juif, 38 Mich. 662. " Ch. Rule 82. "> Case V. Case, 26 Mich. 485. " Ch. Rule 83. »« Ch. Rule 65. " Taylor v. Boardman, 24 Mich. 287. 196 DECEEES. Where the only positive testimony in a cause came from the complainant, a re-hearing was granted on newly discovered evidence that complainant had made statements contradicting his evidence in material points.** Where defendant had made default, and the bill was amended by adding material averments, without serving new process, a re-hearing was granted.*' In Supreme Court. — On appeal the proofs will not be opened in the Supreme Court, for hearing, but where a proper case is made out upon new evidence, the cause will be remanded to the Court below, with directions for a re-hearing.'* Where a cause was defectively settled in the court below, and the statutory period having elapsed, the appeal was dis- missed with leave to move for a re-hearing.*' It is only in cases in which the evidence was capable of being produced at the hearing that it can be read at the re-hearing. '° On re-hearing, the pleadings are opened and the evidence read in the same manner as upon an original hearing. The same objections may be raised for want of parties or upon other grounds as upon an original hearing. And the Court may give complainant leave to amend by adding parties.'* [See Titles, " Practice in the Supreme Court," and " Bills of Eeview."] By Supplemental Bill in the Nature of a Bill of Beview. — New and material matter discovered subsequent to the making of the decree and before enrollment, may be brought before the Court by a supplemental bill in the nature of a bill of review.' ^ By 8 8 Sheldon v. Hawes, 15 Mich. 519. 8' Harris v. Deitrich, 29 Mich. 366. As to fraud, see Scriven v. Hursh,39 Mich. 98. «8 Adams v. Field, 25 Mich. 16. 8» Moote V. Scriven, 33 Mich, 501. »» Dale V. Rosevelt, 6 Johns. Ch. 255 ; 1 Barb. Ch. Pr. 361. 91 1 Mad. 313; 1 Barb. Ch. Pr. 3S9, 360. «= 1 Barb. Ch. Pr. 362; Story's Eq. PI., \\ 422 to 426; Mitf. Eq. PL, by Ter. 90 and note. DBOEEES. . 197 this bill new matter discovered since the decree, may be brought before the Court, although it could not have been used in evidence in the cause.'* If the party was aware of the fact in question, or might by reasonable diligence have acquired the information, he cannot resort to this method after going to a decree.'* In what Time to he Filed. — ^Bills of this nature are required to be brought within the time limited for bringing appeal, except upon newly-discovered facts, and only by special leave of Court. The complainant must also make the like deposit, or give security to the adverse party as would be required on an appeal from an order or decree.'* When to he Heard. — If the Court allows a bill of this kind to be filed, the cause must be re-heard that the decree may be varied. A petition for a re-hearing should, thereifore, be pre- sented at the same time that the bill is applied for ; and the order should provide that the party have leave to file the bill, that the cause be re-heard, and that the supplemental bill come on for hearing at the same time with the re-hearing.' * 2. AITEE ENEOLLMBNT. The general rule is, that a decree regularly obtained and enrolled, cannot be altered except by Bill of Review, unless in matters of clerical mistakes or surprise. In such cases the proper course is to apply by petition.(a) [See BiMs of Beview.'] •» Wiser v. Blackley, 2 Johns. Ch. 488. >* Pendleton v. Fay, 3 Paige, 206; Det. Sav. Bank v. Truesdail, 38 Mich. 430. " Ch. Rule 101. »« 1 Barb. Ch. Pr. 365 ; 2 Dan. Ch. Pr., Chap. 32, ? 2, p. 1472. (a) Radley v. Shaver, 1 Johns. Ch. 200; Bennett v. Winter, 2 Id. 205. 198 DECBEES. SECTION V. ENROLLING AND SIGNING DECEEE. Under the provisions of our statute, after the expiration of thirty days from the time a final decree shall be entered in the minutes of the court, if no appeal therefrom shall have been entered, and no petition for a re-hearing shall have been pre- sented, upon being required by either party, the Eegister, by whom sucb .'inal decree shall have been entered, shall attach together the bill, pleadings, and such other papers filed in the cause as may from time to time by general rules be directed, together with the taxed bill of costs therein, and shall annex thereto a fair engrossed copy of the decretal order, signed by the Circuit Judge, and countersigned by the Eegister, who entered the same.®' Enrollment, how made.— As to the mode of attaching together the papers, etc., and the Eegister's certificate, see Section 5095 of Compiled Laws. Issuing of Process on Decree. — No process can be issued or other proceedings had on any final decree until the same is duly enrolled ; and such process, unless otherwise ordered, must be sealed and issued by the Eegister, 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, he may give the requisite notice of sale previous to enrollment ; but to protect the title of the purchaser a certificate thereof should be produced before any conveyance shall be exe- cuted.** »' 2 Comp. L. 1871, ? 5094. «» Ch. Rule 80. DECJKEES, 199 Where any previous decree or decretal order disposes of any part of the merits of the cause, or is necessary to explain the final decree, it should either be recited therein, or enrolled therein, as a part of the final decree.'' The foregoing rule does not refer to orders of Court but to proceedings in execution of the decree itself, as by sale, adver- tising, etc." Effect of Becording, on Title to Real Estate. — After the enroll- ment of any final decree affecting the title to real estate, a copy, duly certified, may be recorded in the ofi&ce of the Eegis- ter of Deeds of the proper county, and shall have the same efi'ect as the original decree ; and if it directs the execution of a conveyance affecting the title to real estate, the record of such certified copy shall have the same efi'ect as the record of such conveyance would have if executed pursuant to said decree.^""' Discharge of. — The Register in Chancery shall enter on the docket of such decree a note of satisfaction and discharge on production of due proof of the payment of the amount due thereon.i"! Where lands affected by such decree are sold, etc., but redeemed, and in cases of payment of decrees, etc., where the record shows a levy or other lien thereunder, the officer making the sale, or the person receiving such payment, shall discharge the same from the record. ' » ^ Enrolling nunc pro tunc.— Under the provisions of our statute, where a decree, passed and signed by the Court, and not reversed, vacated or annulled, was omitted to be recorded or enrolled, the Court may remedy such omission by an order nunc pro tunc.'^"^ " Ch. Rule 80. " Taylor v. Gladwin, 40 Mich. 232. >»« 2 Comp. L. 1871, § 5096, as amended by the Laws of 1873, p. 217. '" lb., ? 5097, as amended by Laws of 1873, p. 217. '" Laws of 1873, p. 217. ">' 2 Comp. L. 1871, 2 5688. 200 BECEEES. As before stated, until a decree has been enrolled, and thereby become a record, it is liable to be altered by the Court itself upon a rehearing ; while a decree which has been enrolled cannot be altered except on appeal, or by bill of review. For this reason it is that a final decree, not enrolled, cannot be pleaded in bar to another suit for the same matter, i"* An enrollment nunc pro tvmo wiU have relation back to the time of the decree.^ " * SECTION VI DECREES PRO CONFESSO. Where the bill is taken pro confesso the cause must be brought to a hearing as well as in other cases. The Court hears the pleadings and pronounces the decree, and does not permit the complainant to take such decree as he thinks will stand, as in ordinary cases, where the defendant makes default at the hearing. ^ " ^ Good practice requires an affirmative showing of the non- appearance of the defendant as a preliminary to an order pro confesso.''-'^'' Like any other decree it cannot be impeached collaterally except upon bill of review, or to set it aside for fraud.^"* A re-hearing may be had in the same manner as of other decrees. 10* 2 Dan. Ch. Pr., Chap. 26, § 4, 1024. I "6 Goelet V. Lansing, 6 Johns. Ch. 75. i»« Eaton V. Eaton, 33 Mich. 305. 10 f Geary v. Sheridan, 8 Ves. 192 ; 1 Barb. Ch. Pr. 369 ; Griswold v. Ful ler, 33 Mich. 270. 108 Torrans v. Hicks, 32 Mich. 307; Wooster v. Woodhull, 1 Johns. Ch. 641. DEOEEES.' 201 But the Court is less indulgent in opening a decree pro eon- fesso, tlian in setting aside one obtained on a default at the hearing. 1°' The proceedings under a, Accvcq pro confesso are the same as those under other decrees made upon a hearing. But the taking of such a decree will not amount to a confession of any fact not alleged in the bill. A defendant who has appeared by solicitor is entitled to notice of all the subsequent proceedings in the cause, although he suffers the bill to be taken as confessed. And a decree taken against him ex parte without notice will be set aside as irregular. 1 ' " In like manner, the defendant, after appearance, must also serve on the complainant copies of all pleadings, etc., to be filed by him.i ^ ^ Where, subsequent to a decree, pro confesso, an unnecessary reference is made, no notice is requisite. ^ ^ ^ The statute relative to proceedings against non-resident, etc., defendants, provides that if the defendant against whom a pro confesso decree shall have been made under that statute, or his representatives, shall afterwards appear and petition to be heard, such petitioner may, upon paying, or securing to be paid, such costs as the Court shall adjudge, be admitted to answer the bill, and the suit shall then proceed as if no decree had been made. But such defendant, or his representative, must so appear within one year after receiving notice in writing of such decree, and within seven years after the making of the decree, if no notice shall have been given. io» Hart V. Lindsay, Walk. Ch. 72. "» 2 Comp. L. 1871, ^ 5082-83 ; Jenny v. O'FIynn, 5 Mich. 215 ; Wat- son V. Hinchman, 41 Id. 716 ; D. F. & M. Ins. Co. v. Renz, 33 Id. 298. "1 Comp. L.1871, I 5083. "» Kellogg V. Putnam, 11 Mich. 344; Mich. Ins. Co. v. Whittemore, 12 Id. 428. 26 202 DEOEBES. If no appearance shall be entered under either of said clauses, the decree will be confirmed by the Court.^^' And no order to confirm will be necessary.^ i* SECTION VII. DECREES BY DEFAULT AT HEAEINa. The cases in which a decree may be taken by default at the hearing have already been mentioned, [ante, p. 167. J A decree of this nature is not considered as a judgment of the Court, but as the act of the party who obtains it. In this respect it differs from a decree pro confesso, which, as we have seen, is the act of the Court and not of the party. [Ante, p. 46.] The cases in which decrees of this nature will be opened or rectified, have already been pointed out. [Ante, p. 194] It is taken at the peril of the party obtaining it, if he can- not support it by his pleadings and proofe. Hence it is a gen- eral rule that a complainant can take no decree where there is a default at the hearing, unless it be such as would be author- ized by the state of the pleadings had there been no default.^ * * It must also be taken at a regular term.* ^ * Infants. — As respects infants, although the Court wiU not, where they are concerned, make a decree by consent without referring it, yet when once a decree has been pronounced "» 2 Comp. L. 1871, ?? 5127 to 5132; King v. Harrington, 14 Mich. 533; Griggs V. D. & M. R. R., 10 Id. 117. * • * King V. Harrington, supra. 11 » Hardwick v. Bassett, 25 Mich. 149; 1 Hoff. Ch. Pr. 557 J Seaton's Forms of Decrees, 366 ; 2 Dan. Ch. Pr., Chap. 25, g 979, 980. »!• Higgins V. Carpenter. 1 Harr. Ch. 256. DBOEEES. 203 witliout it, the infant will not be permitted to dispute it, unless upon the same grounds as an adult might; such as fraud, collusion, or error, (a) SECTION VIII. DECEEES BY CONSENT. A decree by consent between competent parties is binding unless procured by fraud. ^ ' ' Such a decree made by the consent of the solicitors for the parties cannot be set aside either by rehearing or appeal, or by bill of review, unless, by clerical errot, matter has been inserted in the order to which the party had not consented. If, however, the decree has been obtained by fraud, relief may be had against it by original bill. As a client is generally bound by the act of his counsel, if the latter has consented without sufficient authority he must seek his remedy against him. {a) 1 Dan. Ch. Pr. Chap, iv, ? 9, p. 164 ; 1 Smith Ch. Pr. 419 ; Mills v. Dennis, 3 Johns. Ch. 368; Dow v. Jewell, 21 N. H. 487; 1 HofiF. Ch. Pr. 59; Tillotson V. Hargrave 3 Mad. 494. "'1 Barb. Ch. Pr. 373; French v. Shotwdl, 6 Johns. Ch. 564; 2 Dan. Ch. Pr., Chap. 25, 973; Chapin v. Perrin, 46 Mich. [Apl. Term, 1881.] iVo/ per- mitted in divorce eases; Robinson v. Robinson, 16 Mich. 79. CHAPTBE XVPI. EXECUTION OF DECEEE. Originally the process of the Court by which to enforce, fined decrees was usually by attachment, or in some cases by writ of assistance, but under our practice appropriate process is adapted to the necessities of different proceedings. If the party against whom a decree is rendered does not appeal from the same within the time limited by law, the pre- vailing party proceeds to enforce the same by such process of the Court as is appropriate to the case. It is a general principle that this Court has the power to issue and frame all process necessary to carry its decrees into effectual execution according to the exigencies and peculiar- ities of each case; (a) If a party against whom a decree is pronounced, refuse or neglect to obey it, it may be enforced by attachment in case personal obedience is essential. But in foreclosure cases and those involving sales, it is usual to provide for a sale by some ofilcer of the Court or of the law. In partition cases lands are usually divided by commissioners, and sales are merely excep- tional and incidental. By the statutes of Michigan, a decree may, in many cases, stand in lieu of a conveyance and avoid the necessity of an attachment. When the decree is a mere money decree, a writ of execution should issue as at law. The statute provides generally, that Courts of Equity may enforce the performance of any decree or obedience thereto by (a) Ludlow V. Lansing, 1 Hopk. 231; Grew v. Breed, 12 Mete. 363, 370; 2 Dan. Ch. Pr. Chap. 26, ? 7, p. 1042. See U. S. Ct, Eq. Rule 8. 204 DECEEES. 205 execution against the body of the party against whom such decree shall have been made, or by execution against the goods and chattels, and in default thereof, the lands and tenements of such party. ^ But no execution can be issued on any final decree until the same shall be enrolled. ^ And neither can the enforcement of a decree be demanded but by those to whom it gives affirm- ative relief, (a) In mortgage cases the Court may issue process to compel ' the delivery of possession of the premises, and to collect any balance of the mortgage debt remaining after a sale of the mortgaged premises decreed to be collected from the mortgagor or other parties liable to pay the same.* [See Mortgage Fore- closure, and Writ of Assistance.} In cases of divorce, execution may issue as in other cases for the payment of permanent alimony* But an order for tem- porary alimony is merely interlocutory, and before a party can be imprisoned for the non-payment of temporary alimony, he must be heard as for contempt, after a proper demand and refusal is shown. [See Divorce.'] The statute expressly provides that punishment by impris- onment under a decree can only be enforced in cases where, by law, an execution cannot issue. ^ In partition cases the Court is empowered to direct the commissioner to execute deeds of real estate* ; Also in foreclos- 1 2 Comp. L. 1S71, ? 5099; Mickle v. Maxfield, 42 Mich. 304. 8 2 Comp. L. 1871, §g 5094, 5095, 5099; Ch. Rule 80; Taylor v. Glad- win, 40 Micli. 232; Mickle v. Maxfield, supra. (a) Webster v. Hitchcock, 11 Mich. 56; Perkins v. Perkins, 16 Id. 162; Terry v. McClintock, 41 Id. 497. = 2 Comp. L. 1871, ? 5148, 5150. « 2 Comp. L. ?§ 4745, 4759, as amended by Laws of 1877, p. 32; Taylor v. Gladwin, 40 Mich. 233. 6 2 Comp. L. ? 5689, sub. 3; Ch. Rule 100; Steller v. Steller, 25 Mich. 159; Brown v. Brown, 22 Id. 299; Haines v. Haines, 35 Id. 138; North v. North, 39 Id. 67. As to Habeas Corpus : see Matter of Bissell 40 Mich. 63. Where a party is ordered to pay interlocutory costs. See Ch. Rule 100. « 2 Comp. L. 1871, §? 6321, 6339. 206 DECREES. ure cases^ ; Also in cases where a party, bound by written con- tract to convey real estate, dies before making a conveyance* ; Also in the case of non-residents, when property is seques- tered. * Before a party can be proceeded against, as for a contempt for not obeying a decree, he must be formally served with such reasonable notice as will put him in default for disobedience ; and usually a copy of the decree is necessary, except in cases where the order takes the form of an injunction or other man- datory writ. If he neglects to perform the decree, the Court, upon affida- vit or official return of personal service of the writ or other documents, and of the party's disobedience, will order that he be proceeded against by the ordinary process of contempt.^" [For contempt proceedings, see title " Contempt."'] But no process can be issued on any final decree, until the same has been enrolled. ^ ' If a decree is final as to any branch of the cause, or as to any parties, it must be enrolled before execution can /be issued. An execution is not void because the order allowing it to issue was made before the enrollment of the decree, if the exe- cution itself did not issue until after the enrollment.' '^ A writ of assistance is ordinarily the first and only process for giving possession of land under a decree. Where the decree directs deeds or instruments to be exe- cuted by a party to the suit, the ordinary process of contempt must be employed to enforce their execution, if it becomes necessary to have it done. Where a complainant assigns a decree in his favor, the assignee must resort to the Court to have it enforced.(o) ' 2 Comp. L. 1871, ? 5154. » lb. § 4538. » lb. § 5124. i% Kershaw v. Thompson, 4 Johns. Ch. 609; 1 Baib. Ch. Pr. 441. 11 Ch. Rule 80. i» Ch. Rule 80; Taylor v. Gladwin, 40 Mich. 233. (a) Mickle v. Maxfield, supra. CHAPTEE XVIII. APPEALS FEOM THE CIRCUIT COUET TO THE STJPEEME COURT, AND THE PRACTICE THEREON. The method by which a decree or final order may be reversed or modified, if either party desire to do so, by a super- ior court, is by appeal. In Michigan the appeal is taken from the circuit court and courts of equivalent jurisdiction, direct to the Supreme Court; and which is the court of final resort in this State. From what orders an Appeal lies. — The statutes provide that "any complainant or defendant who may think himself aggrieved by the decree or final order of a circuit court in ' Chancery, in any cause, may appeal therefrom to the Supreme Court." i The right of appeal is a statutory right, and the provisions of the statute must be strictly complied with.^ Appealable decisions may be classified as final decrees and final orders, and non-appealable decisions as interlocutory decrees and interlocutory orders. The distinction in practice is sometimes difficult to be drawn, but the principles laid down by Mr. Justice (Jampbell, of Michigan, in delivering the opinion of the Court in Leivis v. Campau,^ Kingsbury v. Kingsbury,* and Barry v. Briggs,^ are so 1 2 Comp. L. 1871, ? 5179; Caswell v. Comstock, 6 Mich. 391. » Weed V. Lyon, Walk. Ch. 77; Maxfield v. Freeman, 39 Mich. 64. « Mich. Ins. Co. v. Whittemore, 12 Mich. 310; Hewlett v. Shaw, 9 Id. 346; 14 Mich. 458. < 20 Mich. 215. » 22 Id, 201. 207 208 APPEAL TO SUPREME COUET. clearly defined, and furnish sucn reasonable tests to the prac- titioner, that we repeat their substance. The statute restricts the right of appeal to decrees and final orders. The meaning of the term "decree," in this sense, embraces only such decrees as are not interlocutory. Decrees relate directly to the merits of the controversy, and are decisions made upon the issues in the cause. When- ever finally adjudicating upon those matters, they are necessa- rily final as to both parties, and therefore either, if aggrieved, may appeal. ^ The difference between interlocutory and final decrees is, that in thp former some further steps are required to be taken to enable the Court to adjudicate and settle the rights of .the parties ; while under a final decree the party obtains his rights without any further adjudication on the merits, either by the direct operation of the decree itself, or by means of proceedings of a ministerial character in its execution. But it is not necessary that a decree to be final should dis- pose of aU the merits. Whenever the Court finally adjudicates any part of them, though the practice of making separate decrees without necessity is very reprehensible, yet the partial decree is not interlocutory ; nor can it make any difference at what stage of the cause such a decree' is made. But what are known as/«aZ orders, are adjudications upon motions or other applications, not involving a hearing upon pleadings and proofe, but upon other issues interlocutory or collateral whereby some supposed right of a party is definitely cut off, or some liability fixed upon him.' Usually, if not always, an order made on such a side hear- ing is only final if made in a certain way, to-wit : where the decision upon a motion closes the matter, and precludes any further investigation or hearing ; whereas if the decision had been otherwise, it would have been interlocutory, e. g., where « Damouth v. Klock, 28 Mich. 163; S. C. 29 Id. 289; Lewis v. Campau, supra; Enos v. Sutherland, 9 Id. 148; Patterson v. Hopkins, 23 Id. 541; Max- field, V. Freeman, 39 Id. 65. APPEAL TO SUPREME COURT, 209 the decision opens the case, and does not cut off rights acquired under a decree. On the other hand, an absolute decree made in favor of either party would be final. In brief it may be said that the effect produced by an adju- dication in Chancery, upon the rights and interests of the parties, is a better test of its character, as to its being a mere interlocutory order or a decree, than the stage of the cause at which it is made. And wherever a legal right is divested by an order in Chancery it is final, and an appeal lies to deter- mine whether it is valid or not.' In the following cases the orders were held to he final : As to Becdvers. — An order appointing a receiver to take possession of the assets of an estate on a bill in aid of proceed- ings to remove administrators* ; To take charge and dispose of all the firm property held by a surviving partner^ ; An order adjudging an illegally appointed receiver guilty of contempt in disobeying an order requiring him to restore property that had come to him as such receiver i » ; To take possession of realty and personalty on a mere special proceeding and eject and dispossess the occupant i ' ; To pay money from partner- ship funds to the partners Without reference to the state of their accounts ^ ^ ; To give receiver power to practically dispos- sess one who is prima fade a lawful occupant of premises. ^^ In Foreclosure Cases. — An order confirming a report of appraisal, set-off, and conveyance under appraisal law of 1842, as well as the order directing the appraisal, etc.^* ; An order ' Barry v. Briggs, 22 Mich. 201; Kingsbury v. Kingsbury, supra; Tawas & Bay Co. R. R. v. Iosco Circt. 44 Id. 479. ' Lewis V. Campau, 14 Mich. 458. » Barry v. Briggs, 22 Mich. 201. " People V. Jones, 33 Mich. 303. " McCombs V. Merryhew, 40 Mich. 721; Port Huron v. St. Clair Circt Judge, 31 Id. 456. ' 2 Taylor v. Sweet, 40 Mich. 736. ' Arnold v. Bright, 41 Id. 207. ' * Benedict v. Thompson, 2 Doug. 299. 27 210 APPEAL TO SUPEEME COTJET. denying a writ of assistance on behalf of the purchaser' ^ • An order confirming a sale on foreclosure decree > * ; An order setting aside a foreclosure sale after confirmation^' ; An order denying leave to tile bill of review.^ * In Divorce Cases. — ^A decree of divorce although a reference is ordered as to temporary alimony' ^ ; A decree upon a peti- tion filed under the statute for the revision of a decree for divorce^Oj A decree of divorce against the wife involving dower rights, husband having since died. 21 In Contempt Chses.—An order adjudging a party guilty of contempt, and imposing a fine and costs for violating an injunc- tion2 2; An order adjudging defendant guilty of contempt for non-payment of allowances and impostag a fine and an order of commitment on default. ^^ In Partition Cases. — ^A decree fixing the respective rights of the parties though ordering a reference to take an account as to rents and profits, and to ascertain whether a partition is practicable. 2* Also the following: An order striking the bill from the files^'; An order refusing to set aside a decree for irregular- ity^^; A decree dismissing a cross-bilP ' ; An order vacating a sale and ordering a new sale on new terms ^* ; Decree for 1 ' Baker v. Piersbn, 5 Mich. 456. i« D. F. & M. Ins. Co. v. Renz, 33 Mich. 298. " Bullard v. Green, 9 Mich. 222; Lawrence v. Jarvis, 36 Id, 281. 1' Johnson v. Shepard, 35 Mich. 115; Scriven v. Hursh, 39 Id. 98; Beecher V. M. & P. R. M. Co., 40 Id. 308. " Shaw V. Shaw, 9 Mich. 164. s» Chandler v. Chandler, 24 Mich. 176. " Shafer v. Shafer, 30 Mich. 163. •^ Romeyn v, Caplis, 17 Mich. 449; People v. Simonson, 9 Id. 492. "« Haines v. Haines, 35 Mich. 138; Brewer v. Kidd, 23 Id. 440. »* Damouth v. Klock, 28 Mich. 163 ; Shepherd v. Rice, 38 Id. 556. »» Webster t. Hitchcock, 11 Mich. 56. »« Mich. Ins. Co. v. Whittemore, 12 Mich. 311. «' F. & M. Bank v. Bronson, 14 Mich. 361. " Perkins v. Perkins, 16 Mich. 162. APPEAL TO STJPBEMF. COUET. 211 costs^'; A decree declaring complainant entitled to dower though it directs a further inquiry as to damages for dower withheld and to ascertain whether dower could be assigned by metes and bounds, and if not, compute its value; ^o A decree setting aside a conveyance as fraudulent and void, including a reference to determine the amount of mesne profits to be paid by defendants holding under such grant, but not as to the accounting.31; An order enjoining a replevin suit for pro- perty to which plaintiff claims title.* ^ In the following cases the orders made were held not to be fined: As to Beceivers. — ^An interlocutory order appointing a Eeceiver as ancillary merely to other equitable relief, and which does not divest legal rights. * * Directing a defendant who held a chattel mortgage assigned to him by defendant to turn the same over to collect and hold until determination of the rights of the parties.** To discharge a Eeceiver and require an accounting.* ^ To refuse appointment of a Eeceiver in a foreclosure suit.*^ To appoint a Eeceiver to take posses- sion of securities held by trustee under disputed right.*' In Foreclosure Cases. — An order setting aside a final pro con- fesso decree, and permitting a party to defend on conditions imposed on complainant.** An order denying a motion to stay a foreclosure sale and vacating a temporary order staying such sale.*' An order settling the allowance of payment and deferring the cause for computation of amount due on basis of "• McCabe v. Famsworth, 27 Mich. 52. "" Brown v. Branson, 35 Mich. 415. " Hack V. Norris 47 Mich. [Oct. Term, 1881.] »2 M. & M. Bank of Detroit v. Kent Circt. 43 Mich. 292. " Duncan V. Campau, 15 Mich. 415. »* Sailing V.Johnson, 25 Mich. 489. " Colgate V. M. L. S. R. R. 28 Mich. 288. »« Beecher v. M. & P. R. M. Co. 40 Mich. 307. • ' Brown v. Vandermeulen, 41 Mich. 418. »» Prentis v. Rice, 2 Doug. 296. •' Romeyn v. Hale, 1 Mich. 93. 212 APPEAL TO SUPEBME COUET. such allowance.* " An order opening bidding before confirma- tion, and directing new sale on condition tliat larger bids be made.*i An order allowing a BUI of Eeview.*^ In Divorce Gases. — An order opening for review a decree for permanent alimony in a divorce suit, and directing a ref- erence.* ^ An order granting temporary aUmony in a divorce suit.** Demurrer.— An order mstaining a demurrer, but which does not finally dispose of the case.*^ An order overruling a demurrer.* 8 Injunctions. — An order merely dissolving a temporary injunction.*^ An order denying a motion to dissolve a pre- liminary injunction.* ^ An order refusing an injunction in a replevin sui|i.*^ Also the following : A decree directing a reference, to do what the Court but for its power to make such reference, would Itself have to do.^ " A decree consisting in part of a reference to take an account between the parties.^ ^ When a decision is announced but no decree is actually drawn up or filed. ^^ The confirmation of the report of a commissioner upon a refer- ence to examine and state a partnership account, there having «» Morris V. Morris, 5 Mich. 171. *i Demaray v. Little, 17 Mich. 386., But see case of Estoppel, Ledyard v. Phillips, 32 Id. 13. *8 Beecher v. M. & P. R. R. M. Co. 40 Mich. 307; Maxfield v. Freeman, 89 Id. 64. *s Perkins v. Perkins, 10 Mich. 425. ** Haines v. Haines, 35 Mich. 138 ; Lapham v. Lapham, 40 Id. 527 ; Coo- per V. Mayhew, lb. 528. *» Blackwood v. Van Vleet, 10 Mich. 398; People v. Calhoun Circuit Judge, 28 Id. 269. *8 Bennett v. Nichols, 12 Mich. 24. 4' Boinay v. Coats, 17 Mich. 411 ; Spencer v. Steams, 28 Id. 463. 4 8 Wing V. Warner, 2 Doug. 288. 4 9 M. & M. Bank of Det. v. Kent Circt., 43 Mich. 292. »» Caswell V. Comstock, 6 Mich. 391. »i Enos V. Sutherland, 9 Mich. 148. »2 Newbould v. Stewart, 15 Mich. 155. APPEAL TO SUPEEMB OOTJET. 213 been no pre-adjudication.^' An order which declares that there should be a specific performance, but not fixing its terms or giving directions, and which requires further inquiry, s* An order confirming the report of a special commissioner on a reference to ascertain the amount due between the parties.^* A mortgagor against whom a decree in a foreclosure suit has been taken, making him personally liable for any balance, is not precluded from contesting said decree on appeal, for the reason that he has parted with his title to the mortgaged prem- ises to one who has allowed the decree to be taken by default, and failed to appeal.'^ A defendant against whom a decree for costs has been taken may also appeal.^' And a complain- ant who purchased at foreclosure sale, and afterwards conveyed to a third party, may appeal from an order setting aside the sale, under which he acquired the title. ^' When an Appeal wiU not Lie. — The exercise of the discre- tion of the Court in matters interlocutory is not the subject of appeal. Upon this principle there can be no appeal from an order concerning the mere practice of the court, or course of proceeding in the cause.'' But where an appeal lies, it brings the case up for review with all matters of discretion in the proceedings which led to it, open for consideration precisely as in the court below. ' 9 Neither will an appeal lie from an order or decree by covr aent.'^'' •« KiT^sburyv. Kingsbury, 20 Mich. 212. ^* Patterson v. Hopkins, 23 Mich. 541. »= Bewick v. Alpena H. Co. 39 Mich. 700. 5« McCabe v. Farnsworth, 27 Mich. 52; Daily v. Litchfield, 11 Id. 497. " Lawrence v. Jarvis, 36 Mich. 281; Berry v. Innes, 35 Id. 189. »8 1 Barb. Ch. Pr. 378 ; Mich. Ins. Co. v. Whittemore, 12 Mich. 311 ; Hess V. Find, 32 Id. 515. " D. F. & M. Ins. Co. v. Renz, 33 Mich. 298. " Chapin v. Perrin, 46 Mich. [Apl. Term, 1881]; Prosser v. Whitney, lb. [June Term, 1881] ; 1 Barb. Chan. Pr. 380; 2 Dan. Ch. Pr., Chap. 32, p. 459; Coster V. Clarke, 3 Edwd. Ch. 405; De Carters v. La Farge, 1 Paige, 574; Chr. Hospital v. Grainger, 1 McN. & G. 460. 214 APtEAi TO STTPKEME COXTET. The Supreme Court has power to review in some way all final judgments.* ^ Mnal Process. — The final process to which any party may be entitled must be made returnable not less than sixty days from the time of issue. The 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 ; pro- vided, that two terms must not intervene between the teste and return day of such writ.** Transmitting Record to Court Below. — After an appeal has been heard, the records, files and proceedings so transmitted, together with the decree or order of the Supreme Court, must be remitted to the Circuit Court for the proper county.** IPractice on Appeals in the United States Courts. — The statute makes no provision for the form of the appeal.** But as there can be no appeal without taking security for costs, or costs and damages, the acceptance of security during the term is in legal effect an allowance of the appeal. The security may be taken out of court and after the term. But in this event the appeal is not perfected until citation is issued or the party voluntarily appears.*^ As to the allowance of the appeal from the decrees of the United States Circuit Court, it may be made as well by the District Judge when sitting in the Circuit Court as by the Circuit Judge ; for though he has no vote in the Circuit Court he has in all other respects the powers of a member of the court.** The Act of Congress does not require the appeal to be made in open court, or to be in writing or entered on the minutes of the court or to be recorded. It is often made before a Judge «» Schwab V. Coots, 44 Mich. 463. «» Sup. Ct. Rule 49. « « 2 Comp. L. 1871, U 5182, 5184, as amended by Laws of 1879, pp. 25, 26. " U. S. Rev. Stat. ? 692. «» Sage V, Railroad Co. 96 U. S. 712. •• Railroad Company v. Lockwood, 17 Wall. 357 ; Rodd v. Heartt, lb. 354 APPEAL TO SUPEEME COtJET. 215 in vacation. And the law makes no difference as to the form in which it is made ; whether it be taken in court or out of court before the Judge. In either case it may be made orally or in writing, j^nd the only difference is that when the appeal is made in open court during the term at which the decree is passed, no citation is necessary to the adverse party. So if the record should fail to show that a citation had been issued and served, it would be no ground for dismissing the case, as that fact might be proved aliunde.^'' By the 3d Section of the Act of February 16, 1875 [18 Stats, at Large, p.315]deerees will not be re-examined in the United States Supreme Court unless the matter in dispute shall exceed the sum or value of $5,000, exclusive of costs.] Uffect of Appeal. — The effect of an appeal is to stay all pro- ceedings until otherwise ordered by the Court. ^* Claim of Appeal. — An appeal must be claimed in writing, and delivered to the Eegister of the court within forty days from the entry of the decree or final order, except in cases where testimony is taken in open court, and then within foity days from settlement of the case. Within said forty days the appellant must file with said Eegister a boud to the appellee, with sureties duly approved by a Circuit Judge or commis- sioner, and with sufficient penalty, conditioned for the per- formance or satisfaction of the decree or order of the Supreme Court in the cause, and the payment of the costs of the appellee. The motion for such approval must be on a notice of six days to the appellee, and which must contain the amount of " Hudgins v. Kemp, 18 How. 537. Note. — J^or decisions in the United States Sup. Ct. as to what are "final" orders^ see U. S. Rev. Stat ^ 692, and marginal references ; Phillips Prac, Chap, vii, pp. 82 92; Roswellv. Russell, 19 How. 283; Thomson v. Dean, 7 Wall. 342; lb. 575; French v. Shoemaker, 12 Id. 86. For decisions in the U. S. Sup. Ct. as to orders '' not final," see Phillips Prac., Chap, vii, p. 82; Farrelly v. Woodfolk, 19 How. 288 ; United States v. Fossatt, 21 Id. 445 ; Forgay v. Con- rad, 6 How. 201 ; lb. 332 ; Lea v. KeUey, 15 Peters 213; Young v. Smith, lb. 287. & . . «« 2 Comp. L. 1871, ? 5181, as amended by Laws of 1877, p. 7; Beal v. Chase, 31 Mich. 490. 216 APPEAL TO StJPBEMB COtTET. the penalty, and the names of the sureties of the proposed bond ; and on the hearing thereof the appellee shall be heard as to such approval. The appeal would not be complete with- out such approval. ^ ' Should such motion be made before a circuit court commis- sioner, the Circuit Court, or the Judge at chambers of the court where such decree or order was entered may, on special application, order an additional bond, etc. The Supreme Court, or the Circuit Judge, after the appeal is perfected, shall have power, on special motion and cause shown, to order an additional bond and fix the penalty, and approve the same, or refer such approval to a circuit court commissioner of the county. ' " Upon the entry of such appeal, and the filing of such bond, all such proceedings, in the cause shall be stayed, except the taxation of costs, and the execution of additional bonds, until otherwise ordered by the Supreme Court. Otherwise no appeal shall be allowed. But the Circuit Court, or the Judge at chambers, shall have power, on special motion and cause shown, to grant an exten- sion of not over forty days for taking and perfecting such appeal ; and not over forty days for the making of a return thereon. '1 Since the law of 1877, p. 7, it is necessary that a claim to an appeal should be in vxriting.'''^ This law does not apply to appeals previously taken.''* When Time for Taking Appeal Commences to Bun. — The time for taking an appeal does not begin to run until the decree is actually drawn and filed for entry.''* •• Clement v. Everest, 29 Mich. 20. ' 2 Comp. L. 1871, ? 5180, as amended by Laws of 1877, p. 7. This amendment has changed the former provisions regarding Appeals in several respects. '^ lb., as amended. '» Warner v. Whittaker, 5 Mich. 241 ; Covell v. Mosely, 15 Id. 514. »» Perrin v. Kellogg, 37 Mich. 316.! '4 Sellers v. Botsfoid, 9 Mich. 490; Newbould v. Stewart, 15 Id. 155. APPEAL TO SUPREME COITBT. 217 Under the law of 1877, p. 18, the forty days within which an appeal must be taken, run from the date of the settlement of the case, thus changing the old law.''* But when a decree is rendered in vacation the time does not begin to run until the party has notice.'" If the last day for an appeal fall on Sunday, it must be taken on the previous Saturday.' ' Notice of Appeal. — The appellant must, within twenty days after perfecting his appeal, give written notice of the same, and of the day when the bond was filed, to all the other parties, whether joint or adverse, who have appeared, by serving a copy of such notice on such parties or their solicitors in the court below. And copy thereof, with proof of service, must be filed in the office of the clerk of the Supreme Court, on or before the return day of such appeal.' ' The notice cannot be given until the full time for making the return has expired.'^ The failure to give the notice mentioned in the foregoing rule does not entitle the appellee to a dismissal, as matter of right. It has been held to be directory only.* " The notice must be given by the solicitor of record in the court below, or by some one substituted in the Supreme Court.'! Notice of appeal served on the complainant, and without objection, and who was a solicitor, and took part in the trial with the solicitor of record, was held sufficient.*^ " Gale T. Gould, 40 Mich. 62. »• 2 Comp. L. 1871, ? 4967-8; McClungT. McClong, 39 Mich. 55; Kin- ney v. Washtenaw Circuit, 12 Id. 26. " Drake v. Andrews, 2 Mich. 203. " Supreme Court Rule 14. " Stockton V. Garland, 14 Mich. 333: Torrent v. Musk, Booming Co., 21 Id. 1. «» Gairatt v. Litchfield, 10 Mich. 451 ; Shook v. Proctor, 26 Id. 283 ; Simp- son V. Mansfield, 38 Id. 629. " English V. Maxwell, 25 Mich. 462. " McCurdy v. Bowman, 27 Mich. 214. 218 APPEAL TO SUPEEME COIIET. Such notice may be waived by a notice of hearing by appellee, or by exchange of briefs, or by good excuse for the failure.** The Court cannot pass a .rule to deprive itself of a juris- diction conferred by the statute.** Both Parties if Aggrieved mmt Appeal. — When a party in whose favor a decree is granted wishes the decree modified in his favor, he must appeal, notwithstanding the other party has appealed.*^ And when only one of two defendants appeals from a decree, only such questions can be considered as may affect his interests.*^ An appeal by one defendant in foreclosure does not benefit another, nor does his failure to appeal prevent another from so doing.*' But while parties who have not appealed cannot ask a modification of the decree in their favor, yet where in a case of accounting, the appellants have opened the accounting generally, and obtained a change in their favor, the appellate court will consider the objections of the appel- lees to the decree.** {_8ee Accounting, Ante p. 145.] Bond on Appeal. — ^Where no bond is filed within the statu- tory time, the appeal is lost. It is a jurisdictional fact.(a) If " Durfee v. McClurg, 5 Mich. 532; Cameron v. Adams, 31 Id. 71; Gar- ratt V. Litchfield, 10 Id. 451. »* Shook V. Proctor, 26 Mich. 283 ; Simpson v. Mansfield, 38 Id. 629. 8B McCabe v. Famsworth, 27 Mich. 53; Brown v. Bronson, 35 Id. 416 ; Proctor V. Robinson, lb, 284 ; Match v. Hunt, 38 Id. 1 ; Pratt v. Lewis, 39 Id. 13 ; Heath v. Waters, 40 Id. 457 ; Regents v. Rose, 45 Id. 284. 8« Warner v. Whittaker, 6 Mich. 133; Martin v. McReynolds, lb. 71; English V. Carney, 25 Id. 178 ; Abbott v. Alsdorf, 19 Id. 157 ; Oliver v. Shoe- maker, 35 Id. 464; Detroit S. Bank v. Truesdail, 38 Id. 430. " Detroit S. Bank v. Truesdail, supra. »8 Bundy v. Youmans, 44 Mich. 376; Lambert v. Griffith, lb. 65; Grant v. M. & M. Bank, 35 Id. 515. For burden of proof in accounting, see University v. Rose, 45 Mich 284. As to compensation for trustees, see Henderson v. Sherman, 47 Mich- [January Term, 1882.] (a) Moorev. Ellis, 18_Mich.77. APPEAL TO SUPREME COURT. 219 filed within the proper time, but defective, it may be supplied by a new one." Until the amendatory Act of 1877, p. 7, no remedy existed for an insufficient bond on appeal, if regular in form and duly approved.®" Where there is more than one appellant, it is sufficient if the bond appear to be executed by one of them, on behalf of aU.9i There should be at least two sureties.' ^ In McGlintock v. Laing, it was held that where an ineffect- ual approval of a bond was obtained ta good faith, the Court would permit it to be amended.' ' Costs are presumed to be secured by the appeal bond.'* The bond only obligates the appellant to the performance of the decree of the Supreme Court in those particulars in which he was individually bound in the decree appealed from. If, in a foreclosure suit, one of the defendants, not personally liable, on the decree, appeals therefrom, and the decree is affirmed, he is not liable on the bond for any deficiency after sale.' ^ Where a party against whom costs are awarded in the court below, appeals, the appeal bond covers those costs, as well as the costs of the Supreme Court in case the decree is affirmed.' ^ And where both parties appealed, and the Supreme Court made but a single decree, in favor of complainant with costs of both courts against defenda,nt, but no specific decree »» 2Comp.L.1871,?5180,asamendedbyLawsofl877,p.7; Weedv.Lyon, Walk. Ch. 77; Maynard v. Hoskins, 8 Mich. 260; Beebe v. Young, 13 Id. 221; Covell V. ,Mosely, 15 Id. 514; McClintock v. Laing, 19 Id. 300; Torrent v. Booming Co., 21 Id. 159-160; Cameron v. Adams, 31 Id. 71; Perrin v. Kellogg, 37 Id. 317; And see Emerson v. Atwater, 5 Mich. 34. "0 Moore v. Olin, 6 Mich. 328. " Warner v. Whittaker, 5 Mich. 241, " Beebe v. Young, supra. " 19 Mich. 300; But see Clement v. Everest, 29 Id. 20. •* Connorton v. Miller, 41 Mich. 1. »» Kephart v. F. & M. Bank, 4 Mich. 602; »• Daily v. Litchfield, 11 Mich. 497. 220 APPEAL TO SUPEEMB COTJET. against the defendant, tlie latter was lield liable on his bond for all of the costs.*' When a party appeals from a decree for costs, the appeal bond covers the costs of both courts, if the decree is affirmed.' * A bond may be executed before an appeal is taken.* * An indorsement by the proper ofilcer that he " approves of the bond both in form and substance," includes the approval of the' sureties. i"* Parties obtaining affirmative relief under a decree, on appeal, are the parties provided for by the appeal bond.i"! Transcript of Appeal. — On the payment to the Eegister by the appellant of the sum of five dollars, he must attach together all the original pleadings, processes, motions, notices, orders and decrees which have been filed, together with the original minutes of all testimony, whether taken in open court, by a commissioner, or settled by the Court, and also a copy of aU 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 Eegister such fee for thirty days after such appeal shall have been perfected, he will be deemed to have waived his appeal, and the appellee may at once proceed to enforce his decree, as though no appeal had been taken. ^ » ^ But this only applies where the Eegister himself refdses to act, as he may waive its payment. * "^ Esetension of Time for Return. — The time for returning the transcript may, before the same has expired, be extended for a »' Prosser v. Whitney, 46 Mich. [June Terra, 1881.] ' ' Daily v. Litchfield, supra. " Emerson v. Atwater, 5 Mich. 34. "" Maynard v. Hoskins, 8 Mich. 259. As to construction of condition, see Kephart v. F. & M. Bank, 4 Mich. 602. »»i Micklev. Maxfield, 42 Mich. 304. i»s 2 Comp. L. 1871, ? 5182, as amended by Laws of 1879, pT 25. 10« Taylor v. Boardman, 16 Mich. 506. APPEAX, TO SUPEBME COURT. 221 period not exceeding forty days, by a Justice of the Supreme Court, or tlie Circuit Judge, or the District Judge of the Upper Peninsula, on cause shown. The order granting such extension must be endorsed on or appended to the affidavit, and delivered to the clerk of the court which 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 return day. Notice of such extension must be served within ten days after the granting thereof upon the parties entitled to the orig- inal notices, i"* In all cases of appeal, the Eegister must transmit the tran- script of the record, and proceedings in the court below, to the clerk of the Supreme Court, within thirty days after the filing of the appeal bond. If the appellant fails to have it filed within forty days from the filing of said bond, the appellee may move, on notice, to have the appeal entered and dis- missed.i"^ This rule has been recently modified. The statute now requires the original pleadings to be sent up, etc.^ ° ^ And the time in which the Eegister is to make his return has been changed from thirty to fifteen days.i ° ' The foregoing rule, however, is directory merely. When the return of a transcript is made before a motion to dismiss the appeal is called up, it will be denied in the absence of gross negligence. But if no adequate excuse is given, costs wiU be awarded to the appellee.i"* A party seeking relief is bound to show that he has done i»* Sup. Court Rule, 15; 2 Comp. L. 1871, ? 5181, as amended by Laws of 1877, p. 7. »o^- Sup. Court Rule 19. »»« 2 Comp. L. 1871, ? 5183. »•' lb. J 5182, as amended by Laws of 1879, p. 25. l»8 Lathrop v. Hicks, 2 Doug. 222; Maynard v. Hoskins, 8 Mich. 81 ; Gar- ratt V. Litchfield. 10 Id. 451; Beebe v. Young, 13 Id. 221; Covell v. Moscly, 15 Id. 514; Babcock v. Twist, 16 Id. 282. 222 APPEAL TO SUPREME COUET. all in his power to procure a return, and paid, or been ready to pay, the register fees.^ "^ The return should include all proceedings, including the appeal bond.^i° Where a party against whom a decree is made, fails to perfect his appeal within the statutory period, it goes to the , jurisdiction, and no laches of the opposite party, in moving to dismiss, can preclude his right to a dismissal on this ground ; ' 1 1 A motion to amend the return must be made promptly. ^ ^ ^ But an imperfect record constitutes no ground for dismissal. * ^ ' On appeal from a decree on accounting, unless questions of fraud or forgery, or some special difficulty should require it, transcripts from partnership-books, and not the books them- selves, should be returned to the Supreme Court. ^ ^ * Where the demurrers 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 thereto."* Where the Court has no jurisdiction over an appeal to grant the relief sought, it will dismiss it, with costs, without affirming the decree below. ^ ^ * Laches in Procuring Betum. — Where a party has neglected to cause the return to be made in time, and applies to the Supreme Court for relief, he must show good excuse for the delay.ii^ »»» Taylor v. Boardman, 16 Mich. 506; Ball v. Ball, 18 Id. 380; Moore v. Ellis, lb. 77. 110 Maynard v. Hoskins, supra; Wright v. Dudley, 8 Mich. 115; Brown v. Thompson, 29 Id. 72. m Moore v. Ellis, supra. lis Parsons v. Copland, 5 Mich. 144 ; Evans v. ISforris, 6 Id. 69; Wattles v. Warrun, 7 Id. 309; Smith v. Mitchell, 9 Id. 261; Mich. Ins Co. v. Brown, 11 Id. 265; Verplank v. Hall, 21 Id. 469. 1 1 a Verplank v. Hall, supra. 11* Harrison V. Dewey, 46 Mich. June Term, 1881 116 Riopellev. Doellner, 26 Mich. 102. ii« Att'y Gen'l v. Moliter, 26 Mich. 444. 11' Lathrop v. Hicks, 2 Doug. 223; Came v. Hall, 7 Mich. 159; Wood- mansie v. HoUon, 16 Id. 379. APPEAL OX) SUPREME COURT. 223 Wawer. — Notice of hearing given by an appellee is a waiver of irregularities in taking an appeal. ^ ^ * Cases on Calendar. — Appeals in chancery are calendar causes, and to be heard at any term must be placed on the calendar for that term, and must be noticed for the first day , thereof.i^* The priority of cases on the calendar depends upon the date of filing the notice of hearing. The party noticing a cause for hearing mut t, at least ten days before the first day of term, give notice to the clerk to place such cause on the calendar for the term ; but no cause can be entered by him until the return shall have been filed, and the time for making it has expired, nor without such notice. Under a recent Eule, (60), in all cases brought to review or revise an order, decree, or action of any other Court or officer, the relative portion of the parties, and their designation as plaintiff or otherwise, shall be the same as in the Court whose action is in question, though they may be further designated as appellants or appellees. By stipulation, on the forenoon of the first day of the term, cases may be grouped to suit the convenience of counsel. ^^^ Printed Jtecord. — Eule 31 requires that the party removing a cause into the Supreme Court by appeal, must prepare a printed case for the use of Court and counsel, and which must contain the whole of the return, except the formal parts.^^^ In University v. Bose, the Court declined to hear the case without the entire record being printed, there being no appear- ance by counsel on one side, with whom to agree, subject to the Court's approval, as to what should be omitted.(a) Books of similar exhibits need not be produced in the printed record of a case.(&) 118 Durfee v. McQurg, 5 Mich. 532. "» Sup. Ct. Rule 25. (a) 45 Mich. 284. »"» Sup. Court Rule 28. ^" Sup. Court Rule 31. (i) University v. Rose, supra. 224 HEAJBING IN SUPREME COUET. Said rule also provides that the paper used shall be white ; that there shall be a margin of not less than IJ inches; that the page shall be 7 inches long and 3i inches wide, and shall be numbered by folios. Whenever there is unreasonable delay in serving a printed copy of the record, the Court may grant such costs against the prevailing party who is responsible for it, as may offset, in whole or in part, the costs to which he would otherwise be entitled. Eecords must be printed and served in all cases without delay.i^^ In Marvnck v. JElsey, swpra, where a record was served on the opposite party late in the day immediately preceding that set for hearing, the case, on motion, was stricken from the docket, with full costs, as for a hearing. In Lamb V. Hinman,^^^ the original minutes of oral testi- mony, after appeal, were used without the order of the Court, as copy by the printer, and afterwards accidentally destroyed. The Court reluctantly permitted a substituted copy to be filed to save the rights of innocent parties, but condemned the act. ' The clerk of the court has no power to determine whether a record is unduly prolix, and impose penalties in taxing costs. It belongs to the Court.124 Order in which Ckmses are to be Heard. — At noon of the first day of each term the docket will be re-arranged so as to give precedence to cases in which the printed record shall then have been furnished the Court, unless otherwise stipulated under Eule 28. In no case, except for cause shown, will an orcCl argument be permitted unless the printed record shall have been fax- 182 Supreme Court Rule 59; Sanborn v. Robinson, 22 Mich. 92; Sager v. Tupper, 38 Id. 266; Marwick v. Elsey, 46 Id., [April Term, 1881]; And see Wilson V. Wilson, 6 Id. 272. 1 " ° Lamb v. Hinman, 46 Mich. 1 = * Sup. Court Rule 59 ; Sanborn v. Robinson, 22 Mich. 92 ; Sager v. Tupr par, 38 Id. 266 ; Van Deusen v. Newcomer, 40 Mich. 525 ; Marwick v. Elsey, supra. HEABING IN SITPEEME COURT. 225 nished previous to the time of preparing the call on the pre- ceding court day. But a case will be taken on briefs, when reached, if the printed record is then ready for submission ; and it will be at the option of the party, not in fault, to have the case so sub- mitted or continued 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. At the opening of the argument, and also when cases are submitted on briefs, each party must famish to each of the judges, to his adversary, and to the reporter, clerk, and crier, a printed copy of his brief.^^^ In Sanborn v. Bobinson,^^^ the Court declined to hear the cause, and affirmed the judgment below, where no excuse was shown for the neglect to print the record. In Marwick v. Msey,^^'' the Court held that service of the record on the evening preceding the day of hearing was insuf- ficient, and struck the case from the docket. On the first day of each term; after motions are disposed of, the cases for argument will be called in their order on the cal- endar, and proceed from day to day during the term in the same order. If the parties, or either of them, are ready, the same will be heard, if not, the cause shall go over the term, unless the Court, on cause shown, shall otherwise order. Twelve cases only shall be liable to be called on each day, including the one on hearing, if the same shall not have been concluded on the preceding day. Causes shall be liable to be called on motion days after the motions are disposed of. No cause shall be taken up out of its order, or set down for a particular day, except under special circumstances shown. >" Sup. Court Rule 32. "•22 Mich. 92. »» 46 Mich. [April Term 1881.] 29 226 HEAHrNG IN SUPEEME COURT. On motion-days, motions will take precedence of calendar causes.1*' In the argument of causes two counsel may be heard on each side. The time allowed for the argument on each side must not exceed three hours, unless by special permission of the Court, on cause shown.^ ^s Where complainant appeals, but does not appear in person or by counsel, or file a brief, the decree below wiU be afBlrmed, though a record was filed with a brief for defendant.* *" Notice of Hearing. — As a general rule, where parties hare appeared in a cause, they are entitled to notice of aU subse- quent proceedings. * ^ * [See Notice.'] After the transcript has been filed, and the time for filing the same has elapsed, either party may notice the cause for hearing.**^ Where the attorney of the adverse party resides over one hundred miles from the place of hearing, notice of hearing, of at least ten days, shall be given. If over fifty miles, and less than one hundred miles, at least six days. And in all other cases, at least four days.*^' When sent by mail, such service may be made by putting the notice in the post-office, postage paid, directed to the solic- itor at his place of residence, to be ascertained according to the best information and belief of the person making such service, 13 4 In computing the time as to distancCj the usual route of travel must govern. ^ ^ ® i«» Sup. Ct. Rule 42. l«9 Sup. Ct. Rule 34. ISO Woodward v. Chester, 42 Mich. 461; Jackson Iron Co. v. Farrand, 5 Id. 249. 181 Jenny v. O'FIynn, 5 Mich. 215. >8s Sup. Ct. Rule 21. "» Sup.Ct. Rule 26. 18* Sup. Ct. Rule 2. >•' Raymond v. Hinckson, 15 Mich. 517. HEAEING IN SUPREME COUET. 227 An intervening Sunday is not to be excluded in computing time.*" Proof of service of such notice should be made and sent to the clerk, at Lansing. As notice of hearing may be countermanded, if the defend- ant desires to insure the hearing, he should also notice the cause, and file a note of issue with the clerk.*^^ ■ A notice, without date, that a cause will be brought on for hearing at the next term of said Court, is good in form.**' An afiBLdavit of the service of notice of hearing, and of the filing of proof thereof, is sufficient evidence of those facts, though the proof so filed cannot be found in the clerk's office. ' ' ■' A notice of hearing for any time after the opening of term, but specifying no day, is irregular, i*" Notice of hearing given by the appellee is a waiver of irreg- ularities in taking the appeal.^** Where an appeal is taken, notice of hearing cannot be given until the fuM time for making return has expired.**^ Notice must be given by the solicitor of record in the court below, or by one substituted in the Supreme Court.**' No formal notice of appearance 'is required, but solicitors of record, in the court below, may be treated as counsel in the Supreme Court, in the absence of actual notice to the con- trary.*** Where a decree is made in the court below, without notice of hearing, to a party who had appeared, or on defective notice >»• AndersonV. Baughman, 6Mich.298; Corey v. Hiliker, 15Id.314. "' Willey V. Kilduff, 25 Mich. 161. i«» Brushaberv. Stegemann, 22 Mich. 199. "» Matter of Robinson Estate, 6 Mich. 137. >«» Munch V. Shabel, 37 Mich. 167. "1 Durfee V. McClurg, 5 Mich. 532. "" Sup. Court Rule 21; Stockton v. Garland, 14 Mich. 333; Torrent y. Musk. Booming Co., 21 Id. 1. "» English V. Maxwell, 25 Mich. 462. '** Frost V. Lawler, 33 Mich. 348. As it> form of noiice : Franklin v. TAans- field, 8 Mich. 99; Brushaber v. Stegemann, 22 Id. 199. Affidavit of service: Est- ate of Robinson, 6 Mich. 137. 228 HBABmO IN SXn'KEME OOUBT. in point of time, and he has been deprived of substantial rights which he might have been saved, if present, it will be reversed on appeal*** But where a bill was taken as confessed, and referred to a commissioner to compute the amount due, and a decree was made on the report, Avithout notice to the defendant, and no application was made in the court below for relief, the Court refused to reverse the decree on the ground of want of notice only.i*' The general rule seems to be, that where all the facts and documents that could have been relied on in the court below, are before the appellate court, the want of notice of hearing below, will not be ground for reversal. It will only raise a question of costs.* *^ Specicd Motion Booh. — ^The clerk of the Supreme Court mn»t keep a book to be denominated the " Special Motion Book," in which the attorneys shall enter all special motions and rules.*** Where the attorney for the adverse party has his offtce more than two miles from the place of holding court, service of papers may be made on an agent. If he has no agent, ser- vice may be made by putting the notice or paper in the post- ofBce, postage paid, directed to the attorney at his place of residence, to be ascertained according to the best information and belief of the person making the service.* *^ All notices must be in writing, *5'' and must be served on the attorney in the cause, or his agent; and where a party who is also an attorney of the Supreme Court, prosecutes in person, or, if a defendant shall give notice that he is. an attorney, and 1*6 Jenny v. O'Flynn, 5 Mich. 215; Kellogg v. Pntnam, 11 Id. 344; Mich. Ins. Co. V. Whittemore, 12 Id. 427. 1" Martin v. McReynolds, 6 Mich. 71; Kellogg v. Putnam, 11 Id. 345; Mich. Ins. Co. v. Whittemore, 12 Id. 427. »»' Munch V. Shabel, 37 Mich. 167. I*' Sup. Ct. Rule 9. This does not apply to Chancery cases. 14 » Bup. Ct. Rule 2. I" Mason v. Kellogg, 38 Mich. 132. HEAKING IN SXTPEEME OOTJET. 229 will defend in person, all notices aad "other papers must be served on him in like manner. And where the object is to bring the party into contempt for disobeying any rule or order of the Court, the service must be on the pa,rt j personally, unless otherwise ordered.i^^ Notices after appearance must be Served on counsel, and not on the party.' '^ Motions in causes not on the docket, will not be heard without notice.' 5* Notices may be served on an attorney, or his agent, by leaving the same with him or his agent, or with his clerk in his office, or with a person having charge thereof, or where no person is to be found in the office, by leaving the same between the hours of six in the morning and nine in the evening, in some suitable and conspicuous place, in such office. If the office be not open so as to admit of service therein, then the same may be left at the attorney's residence with some person of suitable age and discretion.' ^* Where a party other than an attorney of the court prose- cutes or defends in person, service of papers may be made per- sonally, or through the mail, post-paid, and directed to him at his place of residence. Where a defendant has not appeared, or given notice of his intention to appear, no service of papers in the ordinary pro- ceedings of the cause is necessary.'** Motion Docket. — Statements of all motions, which are not calendar cases, must be left with the clerk at some time before the day they are intended to be brought on. Every such statement must contain the title of the motion, the nature and grounds of it in brief form, and the name of the moving coiuisel, and also of the opposing counsel, if known. '" Sup. Ct. Rule 3. 1" People V. Supervisors, 19 Mich. 9. »»" People V. Supervisors, supra ; Hill v. Eowets, 21 Mich. 303. »«* Sup. Ct. Rule 4. "• Sup. Ct. Rule 6. 230 HEAEINO IN SUPREME COUET. The clerk will enter such statements on a motion docket, to be by him provided for the purpose, and in the order in which they are delivered to him, and will, on the opening of the court, on motion day, present the docket to the court. Motions within this rule will be called from the motion docket, for argument, in their order, and no motions, except such as are calendar cases, will be entertained, unless brought forward as provided for by this rule. > ^ * Motion for Continwmce. — In cases where counsel are not present in court, notice of motions for a continuance to be heard on the first day of term, must be given at least twenty- four hours previous thereto ; and if for a subsequent day, two days notice must be given. ^ " No agreement or consent between the parties or their attor- neys in respect to the proceedings in 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 attorney, against whom the same shall be alleged. ^ ' ' A verbal agreement may constitute a ground of relief when acted upon in good faith.' ^' Special Motion Days. — Tuesday of the first week in term, and every Tuesday thereafter, during term, are made special motion days, on which motions have preference over calendar causes; and all special motions must be noticed for one of those days where notices are necessary. All motions will be heard on the day for which they are noticed, unless adjourned over to a subsequent motion-day, or unless there is not time to hear the same on the day for which they are noticed, in which case they will be heard on the next or succeeding days.'^" 16 « Sup. Ct. Rule 58. "' Sup. Ct. Rule 28. "8 Sup. Ct. Rule 6. ' " Scott V. Scott, 5 Mich. 106. "» Sup. Ct. Rule 24. HEARING IN STJPEBME OOtJET. 231 A motion noticed for a certain day in term, and not tlien called up, cannot be taken up on any subsequent day in term, except by consent, unless it has been ordered to stand over to such subsequent day. ^ ^ * Notice of special motions is in all cases necessary where the opposite party has appeared in the cause.^ °^ And where counsel have appeared, notice must be served upon him, and not upon the party.^^* The entry of a special motion, for leave to amend, must show in what particular an amendment is desired. And a copy of the proposed amendment, with notice of the motion, should be served on the opposite party.^** Copies of affidar vits served with notice of motion must be true and com- plete.i*5 Dismissal of Appeal. — When a motion is made to enter and dismiss an appeal, for want of prosecution, the Court may grant the motion, or deny the same on such terms and condi tions, as the justice of the case may require.^*^ The motion should be made at the earliest opportunity, and it must state the grounds upon which it is based.^®' If, after the appeal is perfected, the appellant fails to prose- cute it, the motion should be to enter and dismiss the appeal for want of prosecution.' ^* But want of jurisdiction over the subject matter of the suit cannot be waived, as where a party failed to perfect his appeal within the lawful time, and no laches of, the opposite >'i Ireland v. Spalding, 11 Mich. 455. i « 2 Scribner v. Doseman, 5 Mich. 283 ; Carpenter v. People, 19 Id. 9. '" Carpenter V. People, supra. ' " * Parsons v. Copland, 5 Mich. 143. i«» Chesebro v. Chesebro, 21 Mich. 506. "« Sup. Ct. Rule 20. !«' Warner v. Whittaker, 5 Mich. 241; Steward v. Dixon, 6 Id. 391; O'Flynn v. Eagle, 7 Id. 306. 309, 354 ; Powers v. Irish, 23 Id. 430 ; Jaquith v. Hale, 30 Id. 163. i«» Sup. Ct. Rule 19. 232 HEARING IN SUPREME COURT. party in moving to dismiss can preclude his right to have the case dismissed on that ground * * * The merits of the case will not be considered on such a motion. 1'" Appeals will not be dismissed in general for mere errors of practice, not involving statutory conditions.^^i The objections to the record as it stands at the beginning of the term, should then be made and in one motion, i ' '^ On a motion to reinstate a cause at a term following its dis- missal for want of prosecution, the moving party must shox himself in position to proceed at once to the hearing if the motion should be granted. ^ ^ * 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. ^ '* An appeal will not be dismissed on the ground that the appellant having made default in the court below, had no right of appeal, unless the decree recites all the facts which by the rules and practice of court entitle a party to default his adversary.- '5 , Computation of Time as to Notice of Pleadings. — The day on which any rule shall be entered, or order, notice, pleading, or paper served, is excluded in the computation of the time for complying with the exigency of such rule, order, or notice, pleading, or paper ; and the day on which a compliance there- with is required, is included, except where it falls on a Sunday, i«» Moore v. Ellis, 18 Mich. 77. "0 Mich. Ins. Co. v. Whittemore, 12 Mich. 311. 171 Weed V. Lyon, Walk. Ch. 77; Warner v. Whittaker, supra; Maynard V. Hoskins, 8 Mich. 81 ; Ball v. Ball, 18 Id. 380 ; Shook v. ftoctor, 26 Id. 283; McCurdy v. Bowman, 27 Id. 214; McBride v. Rea, 33 Mich. 347. 1" Spencer v. Fish, 43 Mich. 226. I's Bingham v. Parsons, 9 Mich. 144 ; Scott v. Scott, 5 Id. 106. "< Connorton v. Miller, 41 Mich. 1. 1" Stevens v. Townsend, 1 Doug. 77. In this case the Court reviews the New York decisions as to the statutory restrictions on the right of appeal. HEAEING IN STTPEEMB COUET. 233 in whicli case the party has the next day to comply therewith. Where by the terms of any order, an act is directed to be per- formed instanter, it must be done in twenty-four hours.^^* Time, — The general rule for computing time on notices in this State, excludes the day from which they begin, and includes that of performance, i" The exceptions are, where by the express terms of a statute or rule, the day on which an act is to be done, is excluded ^ ' * In notices of hearing, under Bules of court, the day of service is excluded, and the first day of term included.^ ^* When the statute requires that process should be served a certain number of days before the return day, both the day of service, and the return day^ must be excluded in the computa- tion of time.^" Where the statute requires a summons to be made returna- ble "not less than three days" from its issuing, three entire days are meant, and the day of the issuing, and the return day must be excluded.* * ^ And where the language used was, "at least two days" before the return day thereof, the day of ser- vice and return day must be excluded. * * ^ Where a date is given both as a day of the week, and as a day of the month, and the two are inconsistent, the day of the month must govern.^ *^ In notices required by the rules of court, when Sunday is an intervening day, it is tacluded in computing time.*'* In the construction of Bules of Gourt, relative to pleadings, and other matters of practice, it is well settled in Michigan "• Sup. a. Rule 7. "» Gantz V. Toles, 40 Mich. 725. J" Sallee v. Ireland, 9 Mich. 154. 1" Anderson V. Baughman, 6 Mich. 298 ; Dousman v. O'Mally, 1 Doug. 450. "0 Dousman v. O'Malley, 1 Doug. 450. •*' Sallee v. Ireland, supra; Warren v. Slade, 23 Id. 1; Powers' Appeal, 29 Id. 504 ; Doyle v. Mizner, 41 Id. 549. "2 Sallee v. Ireland, supra; Arnold v. Nye, 23 Id. 287; Eaton v. Peel:, 2D Id. 57. "8 IngersoU v. Kirby, Walk. Ch. 27. "* Covey V. Hilliker, 15 Id. 314; Anderson v. Baughman, 6 Id, 298. 30 234 COSTS ON HEARING. that if the last day falls on Sunday, the party has the whole of the next day in which to perform the act. ' * * In computing the allowance to be made for the distance counsel reside from the place of hearing, the usual route of travel is to be regarded.*** An order of Court requiring payment of money within a stated number of days, means so many days after service, and the order should so state it.**' The rules and practice of the court being established by the Court, may be made to yield to circumstances to promote the ends of justice, unless limited by statute.*** COSTS. Cosis in Swpreme Court. — The statute makes the costs in Chancery causes subject to the discretion of the Court, except . in a few specified cases.* *8 Costs, on motion, are allowed to the prevailing party, as matter of course, unless some special reason is shown to the contrary.*'" Where the Court is equally divided, costs will be awarded to neither party.* ' * As a general rule, costs will not be allowed where the case is one of a public nature, and the agents appear to have acted in good faith. But in a suit against the Auditor General, and other parties, to declare an assessment upon real estate void, 18" Drake v. Andrews, 2 Mich. 205; As to Holidays, j«2 Comp. L. 1871, \ 1559, as amended by Laws of 1881, p. 252. '*• Raymond v. Hinckson, 15 Mich. 517. »8 7 Davis V. Davis, 39 Mich. 221. *»» Sup. Ct. Rule 27; Drake v. Andrews, 2 Mich. 206; Bates v. Loomis, 5 ■ Wendell, 206. I8» 2 Comp. L. 1871; \\ 7386,7405; Van Wert v. Chidester, 31 Mich. zoo; i^oveiie v. ivioseiy, id. &14; I'erkins v. i'erkins, 16 Id. 163; Woods v. Monroe, 17 Id. 244; Summers v. Bromley, 28 Id. 126; Comstock v. Comstock, 24 Id. 39; Smith v. Rumsey, 33 Id. 199; M. E. Ch. v. Clark, 41 Id. 731. i»» O'Flynn v: Eagle, 7 Mich. 306. I»l Whiting V. Butler, 29 Mich. 125; Rose v. French, 39 Id. 136; Wright Y. Smith, 44 Id. 660. COSTS ON HEARING. 235 on the afiSrmance of tlie decree below, costs were allowed to be collected on the Auditor's appeal bond/^^ i^^^ j^t against the State.i9* Where a decree is modified in favor of appellant against complainant, costs in the Supreme Court will usually be given to the appellant.!'* Where unnecessary parties are brought into court, costs will be allowed them. ^ ' ' Costs incident to an unsuccessfal defense will be imposed on those who make it, personally, together with full costs of an appeal, based upon it alone. But such costs as are merely incidental to the general proceeding below, must be shared with the other defendants.!^® Where the administrator of an intestate brought useless liti- gation in respect to the estate, costs allowed to the opposite party were made a personal charge against him.i" Costs will not be granted against a merely nominal party ; i ' * Nor will th^y be awarded to parties who have not appealed, even though the decree is modified as to them, (a) Where neither party prevailed on a partnership accounting, the cost of printing the record was apportioned according to the interest of the parties.(6) Where the case involves a doubtful question of practice, or the question is a novel one, and the losing party acted in good 1" Clare v. Aud. Gen'l, 41 Mich. 182; F. & P. M. R. R., lb. 635; Scraf. ford V. Gladwin Co., 42 Id. 464. "' Bay City v. State Treasurer, 23 Mich. 500; F. & P. M. R. R. v. Aud. 41 Mich. 635; Cosis against the State, see Att'y Gen. v. Soule, 28 Id. 153; 2 Comp. L. 1871, ? 7407. i»* Atwater v. Turner, 87 Mich. 402. >»» Howe V. Lemon, 37 Mich. 164. "« Mich. M. Life Ins. Co. v. Conant, 40 Mich. 530. !»' Hill V.Mitchell, 40 Mich. 390; Showers v. Morrell, 41 Id. 700. "« Teed v. Martin, 41 Mich. 216. (o) Powers v. G. Lumber Co., 43 Mich. 468 ; Pool v. Horton, 45 Id. 404. {b) Godfrey v. White, 43 Mich. 171. 236 COSTS ON HEAEINa. Mth, on advice of counsel, and under mistake of his l^al rights, the Supreme Court may deny costs.^'* When a party declines to call up a motion noticed by him, costs "Will be awarded against him.'""' Where a decree dismissing the bill was affirmed as to one of the defendants, he will be allowed costs, though it be reversed as to the rest.^"' In the following instances costs were denied: On reversing an order grapting an execution for alimony where there was no valid marriage, and the parties knew it;**"^ Where decree was modified as to parties who did not appeal j^os Where appellee on dismissal of appeal for want of jurisdiction, did not olgect on that ground; 2"* Where in a suit to quiet title, defendant failed to disclaim and release j^os Where complain- ant appealed and decree was affirmed, but did not appear in person or by counsel, or file a brief, though a record was filed with a brief for the defendant ; ^ " ^ Where the decree was modified, and each party held to be in error from the begin- ning ; ^ •" Correction made after removal of cause. ^ " * Where the transcript was filed before the motion to dismiss was called up, but without showing any excuse for the delay, costs were granted to the appellee. ^'^ [/See " Costs " generaMy.] 18 » Bay City v. State Treas., 23 Mich. 499; Buchoz v. Pray, 37 Id. 512; Meyer v. Hart, 40 Id. 517; Ellis v. Fletcher, lb. 321; People v. Gladwin, 42 Id. 464; Culver v. McKeown, 43 Id. 322; People v. Wayne Co., 14 Id. 33; People V. Wayne Circt., 18 Id. 490; Ambler v. Aud. Gen'l 38 Id. 747. 200 Johnson v. Prov. Ins. Co., 11 Mich. 455; Mead v. Com. 16 Id. 518. 8 01 Davis V. Filer, 40 Mich. 310. »»» Lapp V. Lapp, 43 Mich. 287. »»» Powers V. G. Lumber Co. lb. 468. »»* Maxfield v. Freeman, 39 Mich, 64; Also see Portage Lake v. Haas, 20 Id. 326. «0B 46 Mich. I" 6 Woodward v. Chester, 42 Mich. 461. »o' McCurdy v. Clark, 27 Mich. 445. «08 Rogers v. Anderson, 40 Mich. 290. SOS Babcock v. Twist, 16 Mich. 282. CX)eTS ON HEAKING. 237 Damages fm Vexatious Appeals. — ^Upon affirming any sen- tence, determination, or decree, or upon discontinuing or quashing the appeal, the Court, in its discretion, may award damages for the delay and vexation caused thereby, ^ ^ * but not where the Court is equally divided, ^ 1 1 Where costs for vexatious litigation are not applied for, a judgment affirmed against a plaintiff who has made out no case, will not necessarily give more than ordinary costs, (a) Where, on appeal from a decree to set aside a mortgage, the amount was cut down, costs of both courts were granted, with permission to set them off against the mortgage. ^ 1 2 Where a partner was compelled by the improper conduct of the defendant to come into court for a settlement of accounts, costs were awarded him.^ ' ' Where counsel in a cause did not appear, no attorney fee on affirmance of decree was allowed.^^* TAXATION OF COSTS. Taxation of Costs. — Costs in the Supreme Court must be taxed by one of the Justices, or the clerk thereof, and by such other officers as the Supreme Court may by general or special order designate for that purpose, and upon such notice to the opposite party as may be^prescribed by the general rules of theCourt.2i« Taxation of costs must be upon notice of not less than two days. But if service cannot be had upon the opposite solic- »" 2 Comp. L. 1871, U 7402, 7405; Waterman v. Toms, 7 Mich. 78; My- erfield v. Stettheimer, 20 Id. 418; O'Connor v. Parker, 23 Id. 23; Campau v. Campau, 25 Id. 127; Whiting v. Butler, 29 Id. 145; Van Wert v. Chidester, 31 Id. 209; Goodenow v. Curtis, 33 Id. 506; Heath v. Waters, 40 Id. 473, 457; And see Storey v. Bird, 8 Mich. 316; Underbill v. Musk. Boom. Co. 45 Id. 496. «" Whiting V. Butler, 29 Mich. 145; Rose v. French, 39 Id. 136. (a) Underhill v. Musk. B. Co.' 45 Mich. 496. 2" Bowe V. Bowe, 42 Mich. 195. »i» Ward V. Jewett, Walk. Ch. 45; And see Mickel v. Maxwell, 42 Mich 304. "1* Brown v. Blanchard, 40 Mich. 61. »i» 2 Comp. L. 1871, U 7419, 7424 and 7425, as amended by Laws of 1881, p. 394. 238 COSTS ON HEAEDSTG. itor 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 no notice need be given of more than ten days. Such notice must be accompanied by a copy of the bill proposed to be taxed, and the affidavits to be read in support thereof.2is The necessary expense of printing the case, and points required in Eules 31 and 32, may be taxed as disbursements ia favor of the party prevailing in the cause.^*' The Supreme Court only, and not the clerk, can determine whether a record is unduly prolix, or make deductions.^!' Counsel Fees. — The prevailing party shall be entitled to a counsel fee of fifteen dollars in cases disposed of ex parte, or without argument, and thirty dollars in cases disposed of upon argument.^ ^^ Counsel fees cannot be taxed when there is no appearance of counsel.2 2 It is customary to allow ten dollars on motions, unless ordered to the contrary. Costs as for a full hearing will be granted on submission of a case on briefs, (a) ClerVs Fees. — For all services in, a cause heard and decided on the merits, including a certified copy of the final order for th€ prevailing party, the taxing of costs, and the issuing and filing of execution, the clerk is entitled to six dollars.^ ^^ All lawful fees allowed under Act N'o. 18, Laws of 1877, p. 12, must be added as costs to the amount due upon any decree or final order. "« Sup. Ct. Rules 61. »" Sup. Ct. Rules 31, 32, 33. 818 Van Deusen v. Newcomer, 40 Mich. 525. When not brought up by the record: Lorman v. Phoenix Ins. Co., 33 Mich. 65. 2 " Sup. Ct. Rule 48 ; Where cause was continued by complainant, full fee ■was allowed. People v. Southerland, 41 Mich. 177. »»» Brown v. Blanchard, 40 Mich. 61. (a) Engelv. Hall, 45 Mich. 57. a" Sup. Ct. Rule 52. COSTS ON HEADING. 239 The expense of procuring copies of the stenographer's min- utes of the testimony for the purpose of settling the case, is not taxable.''*^ Nor for taking the testimony of the losing party.^^* Under section 7425 of the Comp. L. of 1871, the general statement in the affidavit that the items of disbursements mentioned in the bill of costs, were necessary to the proper preparation of the case, will not authorize the taxing of the expense of drawing and engraving a map printed in the rec- ord.^ ^* Costs of printing a vexatiously prolix record will be denied.^'^ A reasonable allowance paid to an accountant where the services are necessary and of benefit to all cbncemed, is a valid charge.''^* The clerk should limit the allowance for printing to the customary rate for such work, unless satisfied that more has in good faith been paid. Counsel have the right to have the printing done where most convenient to look after the proofe.^'''' Betaxation. — A party desiring a retaxation of costs, must apply by motion or petition specifying the items objected to as erroneously allowed by the clerk, or if irregularity is com- plained of, the reason should be specified.^^s A party will not be heard on motion for re-taxation of costs who fails to appear on the taxation thereof, without showing good excuse for such neglect.^^' 1*2 Hart V. Lindsay, Walk. Ch. 72; Hayes v. Livingstone, 35 Mich. 371. "» Dickinson V. Seaver, 44 Mich. 625, »»* Sawyer v. Studley, Walk, Ch. 153; Maxwell v. Bay City Bridge, 42 Mich. 67. As to practice established in certain cases, see Dickinson v. Seaver, 44 Mich. 624. See Laws 1881, p. 394. "5 Sager v. Tupper, 38 Mich. 258; Sup. Ct. Rule 59. »»« Godfrey v. White, 43 Mich. 172. *•' Dickinson v. Seaver, 44 Mich. 624. »" Reeves v. Scully, Walk. Ch. 340. »" Taylor v, Boardman, 16 Mich. 506. 240 COSTS ON HEARING. The Court will not usually review disputed matters of fact bearing on the taxation of costs on aflELdavits.^*" Final Process. — The final process to wMch any party may be entitled upon a judgment or final decree of this Court, must be issued by the clerk, in whose office the files belong, and made returnable at the same office, not less than 60 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 : Fro- vided, that two terms shall not intervene between the teste and return day of such writ.^*i Papers in Clerk's Office. — Eule.8 forbids the clerk to permit any papers on file in his office to be taken therefrom without an order of Coui't or of one of the Judges, or by written con- sent of the solicitors. But interested parties may inspect the same, and take copies thereof. EE-HEAEING IN THE SUPEEME COUET. Application for Be-hearing in Supreme Court. — ^Where a party discovers new evidence, material to his cause, after appeal to the Supreme Court, the proper practice is to make a motion in the appellate court for a stay of proceedings, and a re-hearing in the court below. But it should be on notice to the opposite party, and on submission to proper conditions, so that the party who obtained the decree below, will not suffer by the delay in case it should not be altered.^^^ Arguments on the merits cannot be made on a motion for a re-hearing, but only on the re-hearing itself, if granted, (a) On appeal, the Supreme Court will not open the proofe, but where a proper case is made out for a re-hearing, upon new 2=» Arnold v. Bright, 41 Mich. 416. 2 8T Sup. Ct. Rule 49. Note — Rule 31, as amended, requires the whole record in Chancery cases, except formal parts, to be printed. Under the old rule, counsel might exercise discretion. — Wilson v. Wilson, 6 Mich. 272. a s ' Case V. Case, 26 Mich. 496 ; Cranson v. Smith, 47 Mich, [January, 1882] ; 2 Dan. Ch. Pr. Chap. 32, § 2, p. 1472; 2 Hoff. Ch. Pr. 53. (a) Kraft v. Raths, 45 Mich. 20. EE-HEAEIlfG IN SUPREME COTJET. 241 eridence, the cause will be remanded to the court below, with proper directions. An appellate court can only pass upon the case as it stood when decided in the court below.^** Whether a re-hearing can be allowed or not, on alleged mistakes of judgment in an appellate court, it will generally be denied unless the new evidence has been found since the decis- ion of the case, and is of such a nature as to require considera- tion. ^84 Where, by inadvertence and without fiiult, no case was set- tled under the statutory provisions, the Court will dismiss the appeal, but may, if justice requires it, grant leave to move for a re hearing at the circuit.^ ^^ Where an amended bill, adding material averments, was filed in a case where the defendant had failed to appear, and a jjro confesso was taken on the same day, without service of new process, the Supreme Court held that the court below should have granted a re-hearing on petition.^ *^ The Circuit Ocourt has no power to allow a Bill of Eeview upon a decree made by the Supreme Court without leave granted. 2 3 7 [For fall discussion of the practice in the Supreme Court of the United States, see Phillip's U. S. Practice, Chap. 30.] [See Be-hearing in Oircuit Ckmrt.'] Be-Argument.— Where, in the argument of a cause, substan- tial rights have been lost in consequence of any error on the part either of counsel or of Court, a re-argument will be per- mitted. 2 3 8 But a very clear case must be made out, and strong equities.2 3 9 "" Sheldon v. Hawes. 15 Mich. 519; Adams v. Field, 25 Mich. 17; Taylor V. Boardman, 24 Id. 303 ; Detroit Sav. Bank v. Truesdail, 38 Id. 443. 2S4 Thompson v. Jarvis, 40 Mich. 526, and cases cited; Taylor v. Boardman, 25 Id. 527 ; Ryerson v. Eldred, 23 Id, 537 ; Warner v. Juif, 38 Id. 662. ""5 Moote V. Scriven, 38 Mich. 500. *'« Harris v. Deitrich, 29 Mich. 366. »»' Ryerson v. Eldred, 18 Mich. 490. 888 Hutchins V. Kimmell, 31 Mich. 134; Vanneter v. Grossman, 39 Id 610; Wood V. Truax, lb. 630. ' '"> Hutchins v. Kimmell, 81 Mich. 126. 81 . 242 EE-HEAETNG IN SUPEEME OOTJET. It will not be granted to allow an argument on a question wMcli had been investigated by the Court but not argued by counsel, or discussed in the opinion, when the argument on the motion for re-hearing does not present the matter in any new light. ''*" It must be re-heard, if at all, on the record, and not upon affidavits.^*! Amendments in Supreme Court. — The Supreme Court having no original equity jurisdiction on appeal, cannot act upon facts which do not constitute a part of the case appealed from. But where it appears that the complainant has stated his case defectively, and no demurrer has been interposed, and the proofe show a good cause for equitable interference, the Supreme Court may direct the proper amendment to be made by the lower court.''** "Where a bill was dismissed without prejudice, and it appeared from defendant's testimony that a ground of relief existed, but was only contingently admitted in the answer, the Supreme Court directed the court below to modify the decree so as to allow the bill to be amended in accordance with the admitted facts, and that a decree for the appropriate relief be entered.*** On hearing in the Supreme Court, it will not be permitted by way of amendment, to substitute heirs as complainants in place of an administrator.*** • *o Hutchins v. Kimmell, supra. »*i Vanneter v. Grossman, 39 Mich. 610. »4 2 Bank of M.v.Niles, Walk. Ch. 398; Church v. Hokomb, 45 Mich. 29; Sears v. Schwarz, 1 Doug. 504; Gorham v. Wing, 10 Mich. 486; Palmer v. Rich, 12 Id. 414; Moran v. Palmer, 13 Id. 367 ; Goodenow v. Curtis,18Id.299; Eabcock V. Twist, 19 Id. 516; Thomas v. Gain, 35 Id. 155; And see Sweetzer v. Mead, 5 Mich. 33; Scribner v. Gay, lb. 511 ; Evans v. Noiris, 6 Id. 69; Farrand V. Bentley, lb. 281 ; M to general pmuer : O'Flynn v. Eagle, 7 Id. 306. »4» Babcock v. Twist, 19 Mich. 516. As to costs on amendments in cases remanded, see Church v. Holcomb, 45 Mich. 29. »«« House V. Dexter. 9 Mich. 249; Lyonv.Talhnadge,l Johns. Ch. 184. JUBISDIOTION ON APPEAI„ 243 Ajnendments in the court below subsequent to the appeal will be disregarded-*** Amending Becords. — If the record is imperfect, the Supreme Court, on motion, will order the return amended.^ *^ Jurisdiction of Supreme Court on Appeal. — Upon any order or decree of the Circuit Court in Chancery being brought by appeal to the Supreme Court, that Court must examiue all errors that may be assigned or found in such order or decree, and must hear and determine such appeal, and all matters con- cerning the same. It has power to reverse, affirm or alter such order or decree, and to make such other order or decree therein as shall be just.**' The Supreme Court cannot exercise original equity juris- diction.2** But it has power to review in some way all final judgments, (a) In matters of equity it has appellate powers only, and can- not pass upon facts not contained in the record as heard in the court below.2*9 But it inquires into the facts on the record, and forms its own conclusions. (&) The rulings of the Supreme Court in a dispute in equity are not binding in an action at law between the same parties, in regard to the same subject matter, so long as the issues are distinct, (c) »" O'Flynn V.Eagle, 8 Mich. 136; McDonald v. Lewis, 42 Id. 135. 24 6 Sweetzer-v. Mead, supra; Scribner v. Gay, 6 Mich. 511: Farrand v Bently, supra; Emory v. Whitwell, 6 Mich.474; O'Flynn v. Holmes 7 Id. 455- CHFlynn V. Eagle, 8 Id. 136; Verplankv. Hall, 21 Id. 469; Roberts v.MiUer! Ox Id. Yo, ' 2" 2 Comp. L. 1871, ? 5183. »" Bank of Mich. v.Niles, Walk. Ch.398; Sears v. Schwarz, 1 Dou? 504- ff'PJ?^(^'f'^^°^S.ie9; Palmer v.RichM2 Id. 414; Adamsv. Fidd 25 V PaW,Tpaige7l66.''' ^^ ^^■^^^' Maxfieldv. Freeman,39Id. 65; StudweU (a) Schwab v. Coots, 45 Mich. 463. V. De Graff-lf ra''' °""^'''^' ^ ^''''" "^' ^erplank v. Hall, 21 Id. 469; Bailey (i) McCuUough V. Day, 45 Mich. 554. (c) Blake v. Hubbard, 45 Mich. 1, 244: JUEIBDIOTION ON APPEAI,. What Brought vjp by Appeal. — An appeal brings up the entire record, as a whole, upon all the facts, with all matters of discretion open for consideration in the Appellate Court, precisely as they were in the court below, and as though the case had not been heard before; and the Court will make such order as should have been made below. But the orders of the inferior tribunal will not be disturbed unless it satis- factorily appears that they require correction, ^s" While the Court on an appeal from a fined decree wiU review all previous orders connected with the decree, and affecting the merits, on an appeal from afinalorder,it will only review so much of the proceedings or such orders as are con- nected with the final orders.^ ^^ It will not review rulings of the court below in matters of practice which do not affect the merits.^^^ And where the Appellate Court agrees with the court below on the main question of lack of jurisdiction, it will not consider questions of regularity of practice.* * * Where a final decree has been made in the court below, it is too late to examine the merits of the case on an appeal from a subsequent order made for the purpose of enforcing if* Mnal Decree on Befe^rence — As a general rule, a commis- sioner's report, unless excepted to, is received as true ; and on appeal such decree will not be reviewed or re-examined as to any part that rests upon such report.^ss ""» Bailey v. DeGrafF, 2 Doug. 169; "Morris v. Morris, 5 Mich. 171 ; Kel- logg v. Putnam, 11 Id. 344; Bennett v. Nichols, 12 Id. 22; Mich. Ins. Co. v. Whittemore, lb. 311; Detroit F. & M. Ins. Co. v. Renz, 33 Id. 298; Haines v. Haines, 35 Id. 138; Grant v. M. M. Bank, lb. 515; Johnson v. Shepard, lb. 115; Bilz v. Bilz, 37 Id. 116. "1 Benedict v. Thompson, 2 Doug. 299. "s^ Hess V. Final, 32 Mich. 515. »"» Campbell v. Quapkenbush, 33 Mich. 289, »64 Shepherd v. Rice, 38 Mich. 556. '"s Eaton V. Truesdail, 40 Mich. 1; Slater v. Breese, 36 Mich. 79; Thome V. Hilliker, 12 Id. 215; Butterfield v. Beardsley, 28 Id. 412; Suydam v. Dequindre, Walk. Ch. 23 ; Tyler v.- Simmons, 6 Paige, 127 ; Story v. Livingston, 13 Pet. 359, 376 ; Harding v. Handy, 11 Wheat. 103, 126. JtTRISDIOTION ON APPEAL. 245 But if the case be one where the interlocutory decree, pre- ceding a reference, decides the turning point, exceptions are not necessary. It is the det«rmination of the Court, and not that of the commissioner, which is involved and complained of; and failure to except to the report of the one implies no acquiescence in the action of the other.^^^ "Where no motion to suppress, and no objections were made to depositions used in the court below, it is too late on appeal to raise them. 2^'' As the Court has no migindC jurisdiction over equity cases, it is confined to an examination of the errors found in the transcript only. ^ ^ * In the case of Brmrni v. Bronsmi,^ ^ ' it was held questionable how far the Court could, on appeal from a later order or decree, interfere with the effect of a prior order not appealed from. An appeal does not bring up for review proceedings sub- sequent to the decree appealed from.^®" While an appeal from a prior decree is pending, a subse- quent decree made by the court below, without a new hearing on proofe, and intended as additional to the prior one, is invalid.2^1 Questions in reference to the taxation of costs in the court below will not be reviewed on appeal, unless the court below has first been called upon to correct it.^"^^ An order granting temporary alimony being one resting in discretion, and not in itself appealable, wiU not be reversed or considered collaterally on appeal from proceedings for con- 's « Eaton V. Truesdail supra ; Clark v. Willoughby, 1 Barb. Ch. Rep. 68. »" Boxheimer v. Gunn, 24 Mich. 372. 868 Bailey v. DeGraff, 2 Doug. 16J ; Adams v. Field, 25 Mich. 16 ; King v. Carpenter, 37 Id. 363. "I 35 Mich. 416; Shepard v. Rice, 38 Id. 556; Damouth v. Klock, 28 Id. 163. "0 Kellogg V. Hamilton, 43 Mich. 269. '«» Beal V. Chase, 31 Mich. 490. ">" Abbott V. Mathews, 26 Mich., 178. 246 JUEISDICTION ON APPEAL. tempt in refusing to comply with its requirements, unless it be a plain case of abuse of discretion.^** A point not sufficiently raised by demurrer cannot on appeal be raised for the first time.^^* "WTiere objections to a decree for an accounting relate to details of practice, and were not raised in the lower court, and are urged by a party who has taken no appeal, they will not be noticed in the Appellate Court.^^s On an appeal from a decree dismissing a judgment-cred- itor's bill, the Supreme Court will determine the claims of a person impleaded as holding securities belonging to a princi- pal defendant, but claiming them in complainant's interest, and against the owner's will, and with no lien upon them."^* Frejudidal Error. — Before the Court will reverse a decree, the appellant must make it appear, not only that the court below committed an error, but that it was prejudicial to him.267 The proper course for a party conceiving himself aggrieved by an irregularity in the proceedings, is to apply to the court below for relief, upon showing that he has sustained, or will sustain injury therefrom ; and if such application is denied, to appeal to the Supreme Court from the decision.^ss When Appeal Dismissed for Defective Pleadings. — If the allegations in a bill do not entitle the complainant to any relief, the bill on appeal should be dismissed for that cause, even though a plea to the bill, on which issue was taken, is "» Haines V. Haines, 35 Mich. 138. »«* Kellogg V. Hamilton, 43 Mich. 270. » « 5 Bundy v. Youmans, 44 Mich. 376 ; Bamebee v. Beckley, 43 Id. 613. s 6 8 Brown v. Vandermeulen 44 Mich. 522. »" Griggs V. D. & M. R. R. 10 Mich. 117 ; Dye v. Mann, lb. 291 ; Mich. Ins. Co. V. Whittemore, 12 Id. 427 ; Martin v. McReynolds, 6 Id. 70 ; Warner v. ■Whittaker, lb. 133 ; Kellogg v. Putnam, 11 Id. 344 ; Campau v. Campau, 19 Id. 116 ; Phillips v. Stanch, 20 Id. 369 ; Cont. Ins. Co. v. Horton, 28 Id. 173 ; Davis V. Bush, lb. 432 ; McCurdy v. Clark, 27 Id. 451 ; Campau v. Traub, lb. 215; Hessv. Final, 32 Id. 515; Johnson v. Shepard, 35 Id. 115; Robertson v. Gibb, 38 Id. 165 ; Ellis v. Spaulding, 39 Id. 366 ; Hill v. Mitchell, 40 Id. 390;- Richards v. Tozer, 27 Mich. 451. '»«8 Kellogg V. Putnam, supra. JUEISDICTION ON APP KAT- 247 found not to be true.**' But if the pleadings are good in substance, all matters of mere form are to be disregarded on the appeal,^'" as well as mere matters of Jirregularity in practice.^ ' ' Where, in a suit involving only questions of fact, the testi- mony taken in open court is conflicting and evenly balanced, the decree granted will not usually be reversed on appeal.^ ^^ But the decision of the Circuit Judge on the facts in a doubtful case so heard, is entitled to great weight with the appellate court, he having the opportunity to observe the wit- nesses.^" When Decree in Court Below vM he Affirmed. — ^Where the Court is equally divided the decree in the court below will be afarmed.2 7* Where the appellant does not appear in person or by coun- sel, nor files a brief, the decree below wUl be affirmed with costs, though a record was filed, and a brief for the appel- lee^ ' ^ ; Also where a party neglects to furnish his brief, under Eule 32^^^; Also where on the whole case it appears that the complainant who appeals, has not made out clearly a right to recover.^^' A correct decree wiU not be reversed because the Court below erred in reasoning.^''* Jurisdictional Defects. — A decree may be reversed on appeal for jurisdictional defects notwithstanding they are not pointed »•» Hurlbut V. Britain, 2 Doug. 191. no Dye V. Mann, 10 Mich. 291 ; Phillips v. Stanch, 20 Id. 369. s" Kellogg V. Putnam, 11 Mich. 344; Hess v. Final, 32 Id. 515. 2'a Green v. Langdon, 28 Mich. 221. »" Matter of Geo. W.rWool, 36 Mich. 299; Sager v. Tupper, 42 Id. 605. 2'4 2 Comp. L. 1871, ? 4923; M. & O. R. R. v. Taft, 28 Mich. 298; Hoff- man V. Harrington, lb. 91 ; Lyon v. Ingham Circt., 37 Id. 377 ; Whiting v. Butler, 38 Id. 616; Sands v. Fin an. 38 Id. 616; Blair v. Compton, 33 Id. 414; Durant V. Essex Co., 2 Wall. 107. s»6 Scott V. Scott, 5 Mich. 249; Woodward v. Chester, 42 Id. 461. »'• Sandborn v. Robinson, 22 Mich. 92. »" Barnum v. Stone, 27 Id. 332; Killam t. Axford, 39 Id. 210. "8 Ormsby v. Barr, 22 Mich. 80. 248 JURISDICTION ON APPEAL. out on tlie argument.^ '^ In YawngUood v. Sexton,^'' ^ the defendant being a public ofi&cer, and the suit having had a tendency to delay the enforcement of a publiclaw, the Court expressed an opinion upon the merits, notwithstanding the want of equitable jurisdiction. Where there was a want of jurisdiction to entertain the complainant's appeal for special relief, the Court dismissed the same with costs, without afiarming the decree below, and which was in his favor. ^*'' Infants. — ^Where errors are committed by the Court below, affecting injuriously the rights of infants, the decree will be reversed though no specific objection was taken thereto.^*! The appellate court wiU not reverse a correct decree because the Court below erred in its reasons for granting it.^*^ Individual opinions must be construed with reference to the facts on which they are based, and not as statements oi abstract propositions without limitation.^** It is irregular to dismiss a bill in equity, on motion, on appeal for want of jurisdiction upon ground requiring support by proofe, unless the facts be admitted by stipulation.^** . Where an injunction biU is dismissed in a court below, an appeal to the Supreme Court does not revive the injunction.^*' Where the Supreme Court decided that they had no juris- diction to entertain ah appeal, it was dismissed in lieu ol q,ffirming the decree below, the same remaining undisturbed. ^ * " On appeal, unless the objection insisted on was presented by the record in the court below, it will not be consid^red.^s' 2" Fessenden v. Hill, 6 Mich. 242; Farrell v. Taylor, 12 Id. 113; Smith v. Smith, 13 Id. 258; Youngbloodv. Sexton, 32 Id. 407. »8o Lockwood V. Moliter, 26 Mich. 444. s 8 1 Smith V. Smith, supra. s 8 a Ormsby v. Barr, 22 Mich. 80 ; Wilson v. W^ar, 26 Id. 452. 288 Holcombv.Bonnell, 32Mich.6; Larzelere v. Starkweather, 38 Id. 96. 884 Foster V. Lake Co., 33 Mich. 289. »86 Brevoortv. Detroit, 24 Mich. 323. "8' Atty. Gen'l v. Moliter. 26 Mich. 444. s 8 7 Boxheimer v. Gunn, 24 Mich. 372 ; Wright v. Wright, 37 Id. 55 ; Slater v. Breese, 36 Id. 78; Ward v. Ward, 37 Id. 259, and cases cited; Eaton v. Trues- dail, 40 Id. 1 ; People v. Smith, 42 Id. 138. JUEISDICTION ON APPEAL. 249 Where one of several parties appeals, he cannot ask a reversal of a decree for error in a part no way affecting the rights of the appellant. ^ * * A decree will not be reviewed unless the appellate court is satisfied that it is wrong.^sa Errors against appellant in accounting, may be' balanced by those in his favor. As the appeal brings up the record as a whole, the Court determines whether the final result reached by the decree is correct or as favorable to the appellant as all the facts would warrant.^'" But the decree cannot be enlarged when complainant does not appeal, even by way of allowance for a vexatious appeal. ^ " ^ In a case involving accounts where references were made to partnership books which were not returned in whole, or by sufficient transcript, the Court referred it back to the lower court that the parties might present it in a proper light. ^ ' ^ Where no regular accounting took place in the court below, the Supreme Court refused to hear it on appeal, and remanded the case for proper proceedings.^' ^ When a defendant has answered after his plea and demurrer have been overruled, the Court will not review the interlocu- tory proceedings of overruling them for the sake of passing upon questions of trifling costs.^'* When a fact does not affect the issue, it does not concern the appellant : So held where, pending suit, one of the appel- lees had re-conveyed to another his interest in the subject matter of the suit.^'^ 888 Warner v. Whittaker, 6 Mich. 134; Griggs v. D. & M. R. R., 10 Id. 117; Abbott V. Alsdorf, 19 Id. 157; English v. Carney, 25 Id. 178; Oliver v. Shoemaker, 35 Id. 464. ««» Sager v.Tupper.42 Mich. 605. «»» Grant V. M. & M. Bank of Detroit, 35 Mich. 515; Robertson v. Gibb, 38 Id. 165. >" Heath v. Waters, 40 Mich. 457. »»» Lambert v. Griffith, 40 Mich. 174. 8»» Barnebeev. Beckley, 43 Mich. 613. «»i Van Slyck v. Skinner, 41 Mich. 186. »»« Hill V. Mitchell, 40 Mich. 390. 32 250 JUEISDICTION ON APPEAL. Where in the absence of fraud, mistake, or surprise, a party to a bill in equity for a partition, consents to a dismissal of the bill, and there was time to apply to the court below for relief the appellate court will not arrest proceedings to aid him.^'* A decree made without notice of hearing to a defendant who had appeared, or on notice insufficient in point of time, wUl be reversed on appeal.297 "Where, on appeal, the decree was reversed, but not on the merits, the defendant will not be precluded from insisting upon an objection not noticed in the decision.^*^ ¥ormal objections to a decree should be taken in the court below. *»• On af&rming a decree of foreclosure, if the record does not show the production of the note and mortgage, the Court will require that it be done before the entry of such decree. If they are lost, then the fact must be shown by affidavit.* " ^ The Court wUl not disturb a decree dismissing a bill where documents on which the rights of the parties depend, are not set out in the records or proofe.**'^ Practice in Settling Cases Heard in Open Comi. — ^Where the testimony is taken in open court, either party so desiring, is »»« Campau v. Campan, 19 Mich. 130. >8 ' Jenny v. O'Flynn, 5 Mich. 215 ; For exceptions to the rule see Evans v. Norris, 6 Mich. 70 ; Kellogg v. Putnam, 11 Id. 344; Mich. Ins. Co. v- Whittemore, 12 Id. 427. s»» Hardwick v. Bassett, 29 Mich. 17. soo Wright v. Wright, 37 Mich. 55. so« Young V. McKee, 13 Mich, 552. 308 McCuUoch V. Bamebee, 43 Mich. 622. SETTLING CASES HEARD IN OPEN COUKT. 251 entitled to make and settle a case setting forth the evidence at large before the Judge who tried the same, at such time, and in such manner, as he shall direct, or as shall be prescribed by the rules of court.*"* There is no special rule upon the subject, but the proper course for the party desiring the testimony to be certified to the Supreme Court, under the statute, is to make a case set- ting forth the testimony at large, with a statement of the pro- ceedings during the trial, present it to the Circuit Judge, and procure his order fixing the time and place when and where it will be settled, and for notice to the opposite party, that he may attend and propose amendments. The practice should be assimilated, as near as may be, to that of making cases for review at law. The Circuit Judge should then attach his certificate thereto as to the correctness of the case.'" ^ After such case is made and certified to, it must be filed in the Eegister's office within sixty days after the entry of the final order or decree therein; whereupon the same will con- stitute 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 conducted according to the ordinary practice in Chancery. Much trouble and delay have resulted from neglect of par- ties to have a case properly made under the statute. Until this is done, notwithstanding the Eegister returns the testi- mony with his transcript, the Supreme Court wiU not cor sider it. Where documentary evidence is submitted to the court below at the hearing by stipulation, it wiU be treated as depo- sitions, and goes up on the return without authentication by the Judge.* "^ •»♦ 2 Comp. L. I 5093, as amended by Laws of 1877, p. 17. • OB Wright V. Dudley, 8 Mich. 75. •»« 2 Comp. L. ? 5093, as amended by Laws of 1877, p. 17 ; Stone v. Wel- ling, 14 Mich. 524. 252 SETTLING CASES HEARD IN OPEN COUET. Eadension of Time to settle Case. — The Circuit Court in which the case was tried, or the Circuit Judge thereof, has power on special motion, and proper showing, to grant an extension of the time for making and filing such a case, for a period not exceeding three months, from and after the date of the entry of such decree or final order. Where a case is so made and filed, an appeal may be takep to the Supreme Court by any of the parties, as in ordinary cases, ^o'' Under the Law of 1877 it has been decided that where proofe had been taken in open court, and decree rendered, 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 filing 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.'"* Where it is within the power of a party to have his case settled, and he does not do so, he loses the benefit of his testi- mony taken in open court. But where the delay is caused by the officers of court, suph as through sickness, or inability of the stenographer, or Circuit Judge, over whom he has no con- trol, and without fault or negligence on his part, a settlement of a case made after the three months will be good.'*^ In such case the Supreme Court will extend the time to perfect the appeal, and if the return has been made, it will give opportunity to correct such defects as were not due to appel- lant's negligence. If the transcript has not been signed, the proper certificate may be obtained from the Circuit Judge that the case was settled, and that the proofe are correct and filed with the record * i " Where within the time allowed for settling a case, the Cir- cuit Judge, before whom the case was tried, resigns, without »o' '2 Comp. L. § 5093, as amended by Laws of 1877, p. 17. »»8 Tilden v. Wayne Cir'ct. Judge, 45 Mich. 615. •o» Cameron v. Calkins, 43 Mich. 191. «>o Gram v. Wasey, 45 Mich. 223. SETTLING OASES HEAED IN OPEN COTJET. 253 settling the same, the Supreme Court on appeal, on applica- tion of the appellant showing the facts, will reverse the decree below, without costs, and remand the cause for re-trial.' ^ ^ "Where the case was not settled and certified within the statutory time, and the circuit judge subsequently certified up a transcript of the minutes of the stenographer as the whole evidence in the case, but the certificate failed to show other- wise that a case had been regularly settled, the Court refused to dismiss the appeal, but presumed it sufficient. The appel- lee, however, was permitted to have the case re-settled, if not satisfied with the proofs.* ' ^ Where no case was settled, but a copy of the stenographer's notes was filed and sent up with the return, and the statutory period had elapsed, the appeal was dismissed with leave to move for a re-hearing.^ ^' Where the testimony is taken in open court the time for appeal dates from the settlement of the case, and not the entry of the decree.*^* When an appeal is regularly taken, but no case has been settled, the cause will stand for hearing without testimony on the pleadings.**® 311 Scribner V. Gay, 5 Mich. 511 ; Hewlet v. Shaw, 9 Id. 346 ; Tucker v. Tucker, 26 Id. 443. And see Campau v. Judge of Superior Ct., 40 Id. 630 ; Crittenden V. Schermerhom, 35 Id. 370 ; Stebbins v. Field, 41 Id. 373; People V. Van Buren Circt., Ilj. 725; People v. Superior Ct. lb. 726. »^s McBride v. McRea, 33 Mich. 347. 818 Moote V. Scrivner, 33 Mich. 500. As to practice on Appeal, under Ves- sel Law, see People's Ice Co. v. Excelsior, 43 Mich. 336. "4 Gale V. Gould, 40 Mich. 62. «i6 Wright V. Dudley, 8 Mich. 75. CHAPTER XIX I-XJETHEK DIEECTIONS. Section 1. How Reserved. 2. When Cause may be Heard. 3. Hearing Upon. 4. What may be Ordered Upon. SECTION I. HOW KESBEVED. The consideration of further directions is only reserved in decrees or decretal orders. In other orders the direction is " to the end that upon the coming in and confirmation of said commissioner's report, such further order may be made in the premises as shall be just.i SECTION II. WHEN CAUSE MAY BE HEAED UPON EUETHEE DIEECTIONS. "When a decree is interlocutory, and the consideration of further directions has been reserved until after the trial of an issue, or until the coming in of the commissioner's report, it is necessary in order that a complete termination may be put to 1 2 Dan. Ch. Pr. Chap. XXX, 1366; 1 Barb. Ch. Pr. 558. 254 FUETHEE DIEECTIONS. 255 the suit, that it should be set down for further directions, and which course must be repeated as often as any further direc- tions are reserved by the last decree pronounced. ^ A cause cannot be set down on farther directions, except upon a conunissioner's general report made in pursuance of a decree or decretal order.* It is only when farther directions are reserved by a decree or order, that it is necessary to set down the cause for hearing for such directions.* In general, afber the reservation of farther directions, the Court refases to interfere in a summary way unless the decree has given the parties leave to apply to the Court as they may be advised, 5 unless in certaia collateral matters, as the appointment of a receiver, etc.^ SECTION III. HEAEING UPON FUETHEE DIEECTIONS. The course of proceedings at the hearing is much the same as that pursued at the original hearing, except that the plead- ings are not opened. Nor are any proofs read but those which were read before the Conamissioner with reference to facts which have occurred since the original decree.' The farther directions are opened by complainant's counsel, who states the effect of the ordering part of the decree, and so = Seaton's Forms of Decrees, 36 ; 2 Dan Ch. Pr. Chap, 30, 1366 ; 1 Barb. Ch. Pr. 558. » 2 Smith Ch. Pr. 362; Van Kamp v. Bell, 3 Mad. 430. * Cooper's Eq. PI. 234. 6 2 Dan. Ch. Pr. 1367; Cooke v. Gwyn, 3 Atk. 689. • 1 Barb. Ch. Pr. 559; 11 Ves. 169. t 2 Dan. Ch, Pr. 1374; 2 Barb, Ch. Pr. 560. 256 FUETHEE DIEECTIONS. much of the report as is necessary to enable the Court to decide the questions before it.* As the Court will not hear any matters extraneous to the decree, or receive evidence beyond the report, if such matter arises, it must be presented by petition, and heard with the further directions. And the Court will then direct any farther necessary inquiries.* [For a full discussion of this subject, the student is referred to the 30th Chapter of Mr. Darnell's Practice, and the 1st Vol. of Mr Barbour's Practice, page 558.] ' SECTION IV. WHAT MAY BE OEDEEED UPON PUETHEE DIEECTIONS. At the hearing upon farther directions, the Court will make such further order in the cause, as, upon reading the commis- sioner's report appears to be consistent with the justice of the case as it stands upon the decree and report. But if the Court is dissatisfied with the manner in which the commissioner has executed the duties imposed by the decree, his report will be sent back to him for review.' " In general, a decree cannot be altered on farther directions; but it must be re-heard. Neither will the Court make any order upon further directions, which will have the effect of varying or impugning the original decree, even though a new state of circumstances appears by the report. Nor will the -Court entertain an objection to it upon a ground which might have been made at the original hearing. ^^ 8 2 Smith Ch. Pr. 365; Gregory v. Campbell, 16. How Pr. 417. 9 2 Dan Ch. Pr. 1374 ; 2 Smith. Ch. Pr. 365; Parnell v. Price, 14 Ves. 502. i» 2 Dan. Ch. Pr. 1370; Lee v. Hndle, 12 Gill. & Johns. 288; Foumiquet V, Perkins, 16 U. S. 84. ' 1 2 Dan, Ch. Pr. 1370; 1 Barb. Ch. Pr. 563; Wilson v. Metcalfe, 1 Russ. 530-536. IXTtTHEK DIEECTION. 257 In general it may be said that the practice of further directions becomes necessary when the cause is in a condition for iinal disposal of the chief matters in controversy, and they require to be dealt with in order to do justice, and there are some other matters requiring further consideration and which cannot be conveniently disposed of at the time the chirf decree is made. CHAPTEE XX. INTERLOCtTTOET AND OTHER APPLICATIONS IN A CAUSE. In this chapter we will briefly notice some of the various applications occurring from time to time in the progress of a cause. An interlocutory application is a request made to the Court or to a Judge at Chambers, for its interference in a matter arising in the progress of a cause. It may either relate to the process of the Court, or to the protection of the property in litigation, pendente lite, or to any other matter upon which the interference of the Court is required at any time. These applications are either by motions, viva voce, or peti- tions, i MOTIONS. Section 1. Nature and Kinds of. 2. Special Motions. 3. What may be Effected by. SECTION I. NATURE AND KINDS OF MOTIONS. A motion is an application made ore terms for an order, of the Court. It may be made by or on behalf of any of the parties to the record when not in contempt. » 2Dan.Ch.Pr.l587. 858 MOTIONS. 259 A person, however, who is quasi a party to the record, such as a creditor or a purchaser coming in under a decree of the Court, may apply to the Court in this way.^ Motions are either of course or special. A motion of course is where by a standing rule, or the known course of the Court, the object of it is granted without hearing both sides. It requires no notice. But if the order entered is to the prejudice of the opposite party, he may move to set it aside.* Under our practice these motions are those upon which the orders are entered by the Eegister'at the request of the party and without any actual application to the Court. [See title, " Orders."'^ SECTION II. SPECIAL MOTIONS. Nature of. — A special motion is one which it is not a matter of course to grant, but which is founded either upon a previous order, or by the pleadings, or by affidavits.* Special motions are made either ex parte or upon notice. Mv parte applications are made for orders that an absent defendant may appear; that complainant's bill be taken as confessed ; for a »ie exeat ; to show cause why an injunction should not issue; for appointment of a guardian adlitem, etc. When an order is made by which a particular act is to be done, unless the opposite party shall, within a certain time, show cause to the contrary, the party obtaining the order • 2 Dan. Ch. Pr. 1588, 1591 ; 1 Hoff. Ch. Pr. 420 ; 2 Barb. Ch. Pr. 566. ' 2Dan.Ch.Pr.l592; I Smith Ch. Pr. 62. « 2 Dan. Ch. Pr. 1592; 2 Barb. Ch. Pr. 568; 1 Smith Ch. Pr. 64. 260 MOTIONS. must, after the expiration of the time limited, if no cause is shown, move to confirm the previous order nid, absolute. ^ This motion requires no notice, but it must be supported by proof of service of the order nisi.^ The object of ex parte motions is usually to prevent the performance of some act, which if performed might cause irre- parable injury. They must be supported by aifidavits of the party applying, and by such collateral affidavits and papers as may be necessary to make out a case for interference. Special Motions. — ^When an application to the Court is not of course, nor such as can be made ex parte, written notice of such application must be served uppn the opposite party.' Notice when Necessary. — ^Notice of every application to the Court must be given to the opposite party if he has appeared when the motion relates to any matter pending in court. * Notice of Motion; farm of. — The notice of motion must be properly entitled in the cause, addressed to the solicitor of the opposite party, or to the party himself, if personal service is intended, and be dated and signed by the solicitor of the party moving. It must state the day and place and the hour of the day at which the motion will be made; or it may state that it will be made at the opening of the court on that day, or as soon there- after as counsel can be heard. In all cases motions must be made, and petitions presented on the day for which they are noticed, if the party has an opportunity to be heard on that day, unless the Court (or cir- cuit court commissioner in a matter pending before him), shall otherwise direct. And if there is not sufficient time to finish the business noticed for any day, it may be continued from day to day until it is completed, or it may be adjourned to some subsequent day. Motions made for a day in term, » 2 Dan. Ch. Pr. 1593. • 2 Dan. Ch. Pr. 1593. ' 1 Barb. Ch. Pr. 568 ; 2 Dan. Ch. Pr. Chap. 35, § 2, p. 1593. » a Gomp. L. 1871, J 5082. See "Notice." MOTIONS. 261 and which cannot be heard on the day for which they are noticed, shall stand continued from day to day without any special continuance.* The motion should clearly state the terms of the order asked for, with the addition, " and for such further or for such other order or relief as the Court may think proper to grant." Costs therefor should be asked for, by the notice of motion. Several objects may be included in the same notice of motion. 1" The notice of the motion should be attached to the papers upon which the application is to be made, if any are to be used and referred to in the notice. If it is founded on plead- ings or other papers on file the notice should specify them. Where a party is entitled to an order to stay proceedings until he has time to give regular notice of a motion, he may make an ex parte application for an order that the adverse party show cause why the motion should not be granted, (a) Time of Notices. — The time of all notices, unless otherwise provided, is to be deemed and taken to be one day exclusive, and one day inclusive. If the time expires on Sunday, the next succeeding day is to be included. i* \_8ee " Time,".'] AU notices of special applications when required shall 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 hundred, six days, and in all others at least four days.^ ^ And a copy of the paper on which any special application is founded must be served the same length of time previous to the application.** Hearing of Motions. — The time for hearing of motions has already been alluded to. » Ch. Rule 5. i» 1 Barb. Ch. Pr. 570. Exceptions: Kellogg v. Putnam, 11 Mich. 344; Mich. Ins. Co. v. Whittemore, 12 Id, 427. (a) Ch. Rule 82. " Ch. Rule 85. " McCaslinv. Camp. 26 Mich. 391. " Ch. Rule 61. 262 MOTIONS. Where original papers are used in opposition to a motion ■which is denied, they should be filed that the adverse party may obtain copies of them. ^* Affidavits and other papers on a motion which are irrele- vant or scandalous, may be suppressed by the Court on inspec- tion, i* A motion once heard and decided upon the merits, cannot be repeated except for special reasons, or upon some new ground. And it cannot be renewed until the costs of a previ- ous motion to the same effect not brought on are paid.^^ And a motion to set aside proceedings for mere technical irregular- ity must be made at first opportunity. (&) Costs of Motions. — Generally a party making a successful motion is entitled to his costs, but not if unsuccessful. StUl when he makes the application for his own benefit he will in general be ordered to pay costs incurred thereby. If a party has good ground for opposing a motion, he may be entitled to the costs if opposing it, as when a party moves for more than he is entitled to, and the same is granted only ia part.i'' It is in the power of the Court, however, to exercise a sound discretion, according to the circumstances of each case.** 1* Bloodgood V. Clark, 4 Paige 574. 1 5 People V. Church, 2 Lans. 459. i« Johnson v. Johnson, Walk. Ch. 309; 2 Hoff. Ch. Pr, 420; Hoffinan v. Livingston, 1 Johns. Ch. 211. {b) Johnson v. Johnson, supra. " 1 Barb. Ch. Pr. 575. 18 Ch. Rule^gO. PETITIONS. 263 SECTION III. WHAT MAY BE EFFECTED BY MOTIONS. The Court will not upon motion make an order wbich will decide the principal point in the case except by consent of all parties affected by it.*' In suits for specific performance of an agreement, if the con- tract is admitted, and the only question is on the title of the seller, the Court will, before the hearing, upon motion, direct a reference to a commissioner to inquire into it. But the Court will not on motion, prior to the hearing, decide upon the validity of any other objection which may be raised by the answer. This will be reserved for the hear- ing.i» PETITIONS. Petitions are applications in writing to the Court stating the circumstances upon which they are based. They are resorted to whenever the nature of the application requires a fuller statement than can be conveniently made in a notice of a motion. 2" They should be addressed "to the Circuit Court for the County of , in Chancery ;" and may be presented either in a cause or in a matter over which the Court has some special jurisdiction. In respect to applications made in a cause, there does not appear to be any very distinct line of difference between the »• 2 Dan. Ch. Pr. Chap. 35, ? 2,note7, 1599 ; 1 Hofif. Ch. Pr. 420: 1 Johns. Ch. 211. •0 2 Dan. Ch. Pr. Chap. 35, { 3, 1603; 4 Johns, Ch. 402. 264 PETITIONS. cases in ■vrhicli motions or petitions should be used. The prac- tice is regulated by the circumstances of each case. But when the application is upon some collateral matter having refer- ence to a suit in court, a party may be relieved upon peti- tion. =i In general, it may be said that all applications for orders which partake more of the nature of decrees or decretal orders, such as applications for the appointment of guardians, and for the allowance of maintenances for the support of infants should be made by petition. Also applications upon matters arising out of decrees or decretal orders. Matters relating to the pro- cess of the Court, or for enforcing the performance of them, should be made by motion. ^^ In Jones v. Boberts,{a) the Court say that as a general rule, when any long and intricate statement of facts is required, the application should be made by petition, while in other cases a motion will be sufficient. In ShipbrooTce v. HinchinbrooTc, (6) Lord ErsMne, in discuss- ing the distinction in practice between motions and petitions, said that while there was no precise boundary between them, yet generally speaking, motions which have for their object to give effect to decrees, and orders, should be confined to cases where the order which is to be made upon the motion, arises out of recent proceedings concerning which there is no doubt, and such as the adverse party may be supposed to be perfectly conversant with. An order to stay proceedings in a cause pending, should be applied for by petition. 2 8 In general, a petition cannot be presented in a cause until the bill is filed. It may be presented by any person, whether a party to the suit or not. »i 1 Barb. Ch. Pr. 57-9; 1 Hoff. Ch. Pr. 419; 2 Dan. Ch. Pr. p. 1587; Cod- wise V. Gelston, 10 Johns. 508; 1 Smith Ch. Pr. pp. 71, 72. " 1 Barb. Ch. Pr. 579. (a) 12 Sim. 189. (i) 13 Ves. 393. " Dyckman v. Kemochan, 2 Paige, 26; 2 Dan. Ch. Pr. 1606. 1>ETITI0NS. 265 When it is presented in a cause it must be entitled in tlie cause. When presented in some collateral matter, or there is no suit pending, it is entitled, "In the matter of A. B.," etc. It should state the particulars of the case with brevity, and conclude with asking for the order desired. Petitions are signed and sworn to by the petitioner, and also signed by his solicitor. They are to be verified in the same manner as bills, and the substance of the oath adminis- tered must be stated in the jurat. 2* When a petition was not signed, but was verified by an affidavit signed by the petitioner, it was held a sufficient sig- nature.(a) In case there is any one who has a right to be heard in opposition to a petition, a copy of it should be served upon him with notice of the time and place, the same as in the case of motions.^' If, upon the hearing, the^petitioner does not appear, the petition will be dismissed, with costs, upon the production of a copy thereof, with due notice of presenting the same. The Court never give costs for appearing to oppose a motion or petition on the ground of short notice, and never grants a motion without proof of due service, although unopposed. On the other hand, if no one appears in opposition to the petition, an order will be made conformable to the prayer thereof, on producing proof of due service of the petition, and notice upon the parties interested, provided the case justifies the order. 2' Every party served with a petition, whether interested or not, is entitled to costs for opposing it.''^ •* Ch. Rules 7, 8; Hathaway v. Scott, 11 Paige, 173. (a) Johnson v. Johnson, Walk. Ch. 309 ; Willard v. Willard, 4 Mass. 606. "" Corning v. Baxter, 6 Paige, 178. " 1 Barb. Ch Pr. 581 ; 2 Dan. Ch. Pr. 1609; 1 Smith's Ch. Pr. 76. •' 2 Dan. Ch. Pr. 1610, 1611, note 13. 266 PETITIONS. If a party object to the form, as well as to the merits, he should be prepared with his affidavits in opposition to the petition on the merits, in case the objection to the form should be overruled, as the Court will not permit the petition to stand over that he may file affidavits, except upon the terms of pay- ing costs.** »» Ex parte Bellott, 2 Mad, 261. CHAPTEE XXI. OEDEES. Section 1. Kinds of Orders. 2. Drawing, Settling and Entering. 3. Form of. 4. Construction and Effect. 5. Service of. 6. Orders Nisi. 7. How Enforced. 8. Opening, Modifying and Discharging. SECTION I. KINDS OF OEDEB^S, Orders are either common, or special, or by consent. Common Orders. — Orders to vMch a party, by the rules and practice of the Court is entitled, of course, without showing special cause, are denominated common orders; a common order is made without notice to the adverse party. ^ Special Orders. — ^All orders made on special application to the Court, are denominated special orders.^ Orders by Gonsent. — Orders by consent of parties, or their solicitors, may be entered as hereinafter mentioned. They cannot be modified or varied essentially without the assent of both parties f Unless there is fraud or collusion between the 1 2 Dan. Ch. Pr. 1589. • Osgood V. Joslin, 3 Paige, 195 ; Studwell v. Palmer, 5 Id. 166. • Leitch V. Cumpston, 4 Paige, 476. 267 268 OEDEES. solicitors of the parties.* Bnt if a party to such order take proceedings inconsistent with its execution, he will be deemed to have waived the right to insist on the rule above mentioned. SECTION II. DEAWING, SETTLING AND ENTEEING OEDEES. Common Orders. — Orders to which a party by the rules and practice of the Court is entitled of course without showing special cause, are denominated common orders; and those made on special application to the Court, or circuit court com- missioner, are denominated special orders.^ All common orders, and orders by consent of the parties, such consent being in writing and signed by such parties, or their solicitors, and filed, may be entered with the Eegister 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 order is made must be noted in the entry thereof, and all special orders made by the special direction of the Court, or circuit court commissioner, must be entered in the record of the proceedings of the court.' While it is the duty of the Eegister to prepare and enter all orders, yet the better practice is for the practitioner to draw them himself and send it to the Eegister, he will thereby not only acquire the habit of examining the statutes, and rules of court, but will be more likely to draw them up more satisfac- torily than can the Eegister, who is occupied in other duties.' * Monell V. Lawrence, 12 Johns. 521. » Ch. Rule 24. • Ch. Rule 24. ' 1 Hoff. Ch. Pr. 408, 416. OEDEES. 269 Orders by Consent. — No private agreement or consent between tlio parties in respect to the proceedings in a cause shall be alleged 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 by his solicitor.* A rule entered by consent will not be vacated unless fraud or misrepresentation is made to appear.' Orders by consent being founded, upon the written consent of the parties or their solicitors, must be filed at the time of entering the order, i" Stipulations between parties and filed with the papers in the cause, may be considered in interpreting the true meaning of the decree.' 1 Special Orders. — All orders made by special directions of the Court must be entered by the Eegister in the record of the proceedings of the court. If the solicitors of the parties do not draw the order, it is the duty of the Eegister to do so.' ^ Neither party can have any benefit from a decision of the Court until the order thereon is drawn up and perfected. When an order is special in its provisions, the party enti- tled to draw it up should submit a copy thereof to the adverse party that he may propose amendments ; the draft and amend- ments if any, should then be delivered to the Eegister. If the Eegister does not understand the decision, he should then apply to the court.' ^ Unless the parties differ as to the substance of the order granted, the more convenient method is to stipulate as to ^such order.'* ' Ch. Rule 84; Suydam v. Dequindre, Walk. Ch. 23. » Hammond v. Place, Harr. Ch. 438. »« Ch. Rule 24. . ■ ■ » ' Thayer t. McGee, 20 Mich. 195 . 12 Ch. Rule 24. l» Whitney v. Belden,4 Paige, 140. '* Whitney v. Belden, supra. 270 OEDBES. If the party entitled to draw up the order neglects to do bo, after a reasonable time, usually twenty-four hours, any other party interested may have it drawn up.^* When a party is relieved against an order regularly obtained against him upon conditions, it is his duty to draw up and enter the order without delay. If he neglects to do so, the adverse party on due proof thereof, and that the terms granted have not been complied with, may proceed to enforce the original order. ^^ Mitering Order Nunc Pro Tunc. — It is matter of common practice to apply to the Court to enter an order nunc pro tunc, which is a motion of course when the party applies promptly. But after a length of time elapses notice should be given of the application, i* An order nunc pro tunc cannot operate ex post facto to give force to a chamber order void for want of jurisdiction, or to give validity to proofs taken thereunder. ^^ [See Ante, p. 191 as to the manner of drawing up, settling and entering decrees.] SECTION III. FOEM OF OEDEES. The form of the caption of orders is given in Chancery Eule 4. The caption should state the time and place where the court was held and when the order was made.^* It is fol- lowed by the title of the suit in which it is entered. The com- '* Whitney v. Belden, supra. IB Hoffman v. Tredwell, 5 Paige, 82. i« 3 Atk. 521 ; 1 Barb. Ch. Pr. 585. 1' Eslow V. Albion, 32 Mich. 193. 1' "Whitney v. Beklen, supra. OEDEBS. 271 plainant's name must in all cases be placed first, whichever party may draw up the order. >* Where the decision of a motion is delayed by the Court, it relates back to the time when the motion was made. And any proceedings taken prior to the announcement of the decision will be liable to be set aside if inconsistent with it.^" The order for the revival of a cause upon petition should be entitled as in the original cause at the time of the abate- ment ; but aU subsequent orders and proceedings must be enti- tled in the cause as revived. ^^ The title of the cause is succeeded by a brief recital of the papers upon which it is founded, and of the names of the coun- sel for the respective parties who appeared in support of, or in opposition to the application. The order concludes with the ordering part, which contains the directions of the Court upon the matter of the application. Where two or more special motions or applications in the same suit are decided at the same time, or on the same day, they must be entered as one order, unless the Court otherwise directs.^ * SECTION IV. OONSTETJCnON AOT) EFFECT OP OBDEBS. Kme. — ^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 ' » Ch. Rule 67. "> Willsoti V. Henderson, 15 How. Pr. 90. '^ Rogers v. Paterson, 4 Paige, 450. «' Ch. Rule 110. 272 OEDEES. 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. ^^ The term, " instanter," when used in an order, means twenty-four hours.^^ When to Take Effect. — Neither party can have any benefit from a decision of a Court until the order thereon is drawn up and perfected. 2= There is a large number of orders jsvhich either from their nature or by the express direction of the Court, take effect only from the time of service thereof; such as to deliver possession; to produce books; to show cause, etc.^^ Where payment of money is ordered to be made within a number of days, it means so many days after ser- vice, and it should be so stated. ^^ Hffect of Generally. — An irregular order made by the Court, and entered as a special order, although made ex parte, is not void, but remains in force until set aside by the Court, or waived by stipulation. ^^ So a special order entered under the direction of the Court, although in violation of one of its standing rules, cannot be disregarded so long as it remains in force. ^^ When an order is improper or has been obtained through inadvertence or mistake, the party injured should apply to open the motion or to vacate the order. ^ " It is a general rule that every irregu- larity in an order is waived by the party's taking a step which recognizes it, or by his delaying to move to set it aside. 8 1 But there is a distinction between orders which are merely irregular, and such as are altogether erroneous. An order »s Ch. Rule 85 ; 1 HoflF. Ch. Pr. 414. 24 See Sup. Ct. Rule 7, and Circuit Rule 15. ^^ Whitney v. Belden, 4 Paige, 140. »« 1 Hofr. Ch. Pr. 415. »' Davis V. Davis, 39 Mich. 221. »8 Hunt V. Wallis, 6 Paige, 371. = 9 Studwell V. Palmer, 5 Paige, 166 ; 1 Barb. Ch. Pr. 589. 'o Osgood V. Joslin, 3 Paige, 195; Higbie v. Edgarton, lb. 253. «> Brasher's Exec'rs: v. Van Cortlandt, 2 Johns. Ch. 247; 1 Hoff. Ch. Pr, 417. OEDEKB. made without jurisdiction is void, and niu/y ua tioaled as a nullity.^ ^ An order erroneous in part is not void so lar as relates to matters properly contained in it. (,«) Chancery Eule 80 in forbidding proceedings to enforce a decree before its enrollment, does not refer to orders of the Court, but to proceedings in execution of the decree itself as by sale.'^ An order based upon the admission of an infant will be reversed.** SECTION V. SEETICE OP OEDEE. ' After an order is drawn up, settled and entered, it is then to be served when service is necessary. It is a general rule' that all orders which are to have the effect of requiring or limiting any act of the opposite party to be done within a specific time, or to bring him into contempt, must be served, or actual notice thereof given.' ' Where the Court directs a party to do an act wiihin so many days after the service of the order, a copy must be served. But when the act is directed to be done within so many days after the date, or of the entering of the order, the Court intends the party shall take notice of the order without service.* ^ " Albany Bank v. Harris, 19 Barb. 587. (a) Howard v. Palmer, Walk. Ch. 391 ; Osgood v. Joslin, 3 Paige, 195 ; Studwell V. Palmer, 5 Id. 166. " Taylor V. Gladwin, 40 Mich. 232. »« Smith V. Smith, 13 Mich. 258 ; Thayer v. Lane, Walk. Ch. 200. " lyler v. Simmons, 6 Paige, 127. «• 1 Barb. Ch. Pr. 590. 36 274 OEDEES. Orders wMch do not seek to bring the party into contempt, may be served npon the solicitor of such party if he has appeared. But when the object is to bring a party into con- tempt, the order must be served personally, which is done by delivering a copy of the order to such party and at the same time showing him a certified copy thereof "When the party cannot be found, service upon his solic- itor will be substituted for personal service. And when an order is served upon the solicitor, if knowledge of such service is brought home to the party, he will be in contempt for not obeying such order.'* SECTION VI. OEDEES NISI. Orders nisi are granted upon an application to the Court without notice. In certain cases a party may have an order nisi that the prayer of his petition be granted, unless cause to the contrary be shown within the time limited by the rules, or fixed by the Court for that purpose. A copy of such order must be served on the adverse party, and if he does not appear to show cause at the time appointed, the order nisi will be made absolute on due proof of service of a copy thereof. It is provided by Chancery Eule 82 that when a party is entitled to an order to stay proceedings, or temporary relief until he can give regular notice of a motion, etc., he may make an ex parte application to the Court, Judge, or commissioner, »' Stafford v. Brown, 4 Paige, 3GJ; 1 Uatb, Ch, Pr, 590; Coop. Eq. PI 282. »" People V. Brower, 4 Paige, 405, 360, OEDEES. 275 as Injunction Master, for an order that the adverse party show cause why the motion should not be granted. The adverse party must be served with a copy of the order and .papers on which it is founded, the same length of time before the day of showing cause, as is required in the case of special motions unless a shorter time be directed. Eule 85 directs that all rules to take effect nisi, etc., shall be rules of eight days unless otherwise directed. On filing a Commissioner's report an order nisi may be entered to con- firm the same unless cause to the contrary be shown in eight days.*' In computing the time upon orders nisi when a time is stated, it is to be deemed one day inclusive and one day exclu- sive.*" The party, who is the object of the order, has the whole of the day fixed by the order, during the sitting of the court, to show cause. ** Unless an affidavit of the service of the order nisi is filed, and a motion is made, the order will not become absolute at the expiration of eight days, except expressly ordered, although no cause is shown. The case of a commissioner's report is an exception. SECTION VII. OEDEES, HOW ENFOECED. / Orders in general are eijforced by process of contempt. Eule 100 directs that when a party is ordered to pay the costs of any interlocutory proceeding, and, no time of payment is specified in the order, he shall pay them within twenty days " And see Ch. Rule 79. " Ch. Rule 85. " Vandenburgh v. Van Rensselaer, 6 Paige, 147. 276 OBDSBS. after tlie filing of the taxed bill and affidavit, and service of a copy of the order and of such taxed bill.*^ If a gross sum is specified in the order, he shall pay it within twenty days of service of a certified copy of the order. If he neglects or refuses 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.* * Before the party can be committed for non-payment of costs, under the above rule, a personal demand must have been made upon the party himself by some one duly authorized. When it is intended to enforce an order against a person not a party to the record, he must be personally served with the order directing him to pay in the money, or do the act which he is ordered to perform. Upon affidavit of personal service of said order, and that the act has not been performed, an order nisi may be obtained upon notice of the motion that the act ordered be performed, or that the person stand com- mitted. It cannot be obtained, however, unless there has been a previous order limiting a time for payment. The order nm having been obtained and personally served, the party prosecuting the contempt may apply by motion ex parte, that the defendant stand committed upon producing an affidavit of personal service of the order and non-performance of the act.** " People V. Bristol, 22 Mich. 299 ; Haines v. Haines, 35 Id. 138. 4« Ch. Rule 100. ♦* 1 Barb. Ch. Pr, 595; 2 Dan, Ch. Pr. 1593. OEDEES. 277 , SECTION VIII. OPENING, MODIFYING AND DISCHAEGING OEDEE, Orders may be opened, varied and discharged upon applica- tion to the Court, and for good cause shown, such as mistake, surprise, irregularity, etc.*^ When an improper order has been granted, the proper course is for the party injured to apply to open the motion or vacate the order.* ^ [See Eule 86, and Decrees by Default.] An order by consent cannot be modified or varied in an essential point without the assent of both parties.* '' And it will not be vacated except for fraud or misrepre- sentation, (o) Orders of course when actually entered, cannot be vacated, except on special cause shown.** *' Peltier v. Peltier, Hair. Ch. 10; Fanning v. Dunham, 4 Johns. Ch. 35. *• Higbie v. Edgarton, 3 Paige, 253; Isnard v. Cazeaux, 1 Id. 39. *' Leitch V. Cumpston, 4 Paige, 476. (a) Hammond v. Place, Harr. Ch. 438. " 1 Barb. Ch. Pr. 596. CHAPTEE XXII. AFFIDAVITS. Section 1. Nature and Uses. 2. By Whom to be Made. 3. Form and Requisite. 4. Before Whom to be Sworn. ' 5. Filing and Marking. SECTION I. NATURE AND USES. An affidavit is a statement in writing, sworn to or affirmed before some person having authority to administer oaths. Questions pertaining merely to the mode of procedure may be tried on affidavit. But generally no matter can properly be tried upon mere affidavit unless it be matter which depends upon the discretion of the Court. * Affidavits are usually resorted to in support of and in oppo- sition to motions and petitions, or for certifying the service of process, notices, etc. They may also be used in support of the bill, or of the defendant's answer.^ Though a defendant's answer on oath is waived by the bill, yet he has the right to put in his answer on oath for the pur- pose of moving for the dissolution of an injunction or the dis- charge of a we exeat. Counter affidavits may be read in opposition to a motion without having been served.* But when an answer on oath 1 People V. Calhoun Circuit, 24 Mich. 408 ; Vanneter v. Grossman, 39 Id 610. • Came v. Hall, 7 Mich. 159. • Lathrop v. Hicks, 2 Doug. 223. 278 AFFIDAVITS. 279 is waived, it will not be a matter of course to dissolve the injunction or discharge the ne exeat on the oath of the defen- dant, if the material facts on which the application for said writs rests, are verified by the afSdavit of a credible and disinterested witness, annexed to and filed with the bill.* But when the whole equity of the bill is denied by the sworn answer of the defendant, and the biU is not accompa- nied by the affidavit of a disinterested person, the injunction will be dissolved on bill and answer.^ On a motion to dissolve an injunction before answer, an affidavit is admissible, which goes to show that the injunction was irregular, or that the officer granting it was misled.® But they are not admissible to contradict the answer upon a motion for the appointment of a receiver.' An injunction will not be dissolved on affidavits except in cases of waste and of partnership.*' On motion to open default the affidavit of merits should be made by the defendant himself, or good reason be shown why not,^° and it should show what the merits are.^* Where complainant waives an answer on oath, and relies upon the affidavits of third persons annexed to his bill to sus- tain an injunction in opposition to the defendant's answer on oath, denying the equity of the bill, the defendant, on applica- tion to dissolve the injunction, may also read the affidavits of third persons in support of his answer. * ^ * Dougrey v. Topping, 4 Paige, 94 ; 1 Barb. Ch. Pr. 597 ; I-athrop v. Hicks, 2 Doug. 227 ; Strong v. Plainer, 5 Cow, 21. ^ Manchester v. Dey, 6 Paige, 295. • Carroll v. F. & M. Bank, Harr. Ch. 197. ' Connor v. Allen, Harr. Ch. 371. » Sacket v. Hill, 2 Mich. 182; 1 Hoff. Ch. Pr. 360. >» Bank of Mich. v. Williams, Hair. Ch. 219. " Thayer v. Swift, Walk. Ch. 384; Stockton v. Williams, Harr. Ch. 241? Hunt V. Wallis, 6 Paige, 371. IS 1 Dan. Ch. Pr. 891 ; Carroll v. F. & M. Bank, Harr. Ch. 197; Connor ▼. Allen, lb. 371 ; Brown v. Haff, 5 Paige, 235; 1 Barb. Ch. Pr. 598. 280 AEEIDATITS. SECTION II. BY WHOM TO BE MADE. Affidavits may be made by the parties in the suit during its progress, but they can only be read on motions, etc. They are inadmissible as evidence on the hearing. The general rule is that an affidavit should be made by the person who has personal knowledge of the facts, unless good reason is shown for its being made by some other person. But where the party is sick or absent, a substituted affidavit will be allowed. Whenever the affidavit relates to the proceeding in the cause it should be made either by the solicitor or by his clerk, who has had the principal management of the cause. ^* SECTION III. POEM AND EEQmSITES. Title. — An affidavit must be correctly entitled in the cause, or it cannot be used therein. ** But when it refers to a paper, properly entitled, to which it is appended, it will be deemed to adopt the title by reference.!^ " 1 Barb. Ch. Pr. 599. »* Whipple V. Williams, 1 Mich. 115; 1 Dan. Ch. Pr. 893. " King V. Harrington, 14 Mich. 532; Watson v. Reissig, 24 111. 282. APPIDAVITS. 281 Affidavits must be entitled with the names of all the par- ties to the suit.** Although in ordinary cases the Court will disregard the misentitling of a paper which could not have misled the opposite party, it is otherwise as respects affida- vits, because the misentitling of an affidavit will exempt the deponent from the punishment of perjury, although his oath is false.* ^ In proceedings for contempt against a party to the suit to compel the appearance or answer of a defendant, or to enforce the performance of a decree or order, the affidavits, as well after as before the order for an attachment, should be entitled in the original cause.** In entitling affidavits the complainant's name must always be placed first.** Where there are several defendants, and there is but one suit pending between the complainant and the defendant first named therein, with others, it is sufficient in the entitling of an affidavit to entitle it in the name of the complainant against the first defendant and others, without setting forth the names of all the defendants at length, ^o Venue. — The title follows the venue, and which states the county in which the affidavit is sworn to, viz. : "Wayne County, ss." This is an essential part of an affidavit. The omission of the words "before me" in a jurat to an affi- davit is a nullity."* But if the complaint shows in the body that it- was sworn to before the proper officer, it will be suffi- cient.'' ' Copies of affidavits served with notice of a motion must be true and accurate.^* ' « Arnold v. Nye, 11 Mich. 456. >' Hawley v. Donnelly, 8 Paige, 415. > ' Stafford v. Brown, 4 Paige, 360. " Ch. Rule 67. »» White V. Hess, 8 Paige, 544. •1 Smart v. Howe, 3 Mich. 590. " Cross V. People, 10 Mich. 24; Matter ofTeachout, 15 Id. 346. Officer' t initials, sec Rice v. People, 15 Id. 8. •» Chesebro v. Chesebro, 21 Mich, 506. 36 282 AFFIDAVITS. An affidavit for an appeal, if properly sworn to, is Valid, though not signed by the affiant. 2* Names, etc., of Deponent. — In all affidavits the true place of residence and description of the deponent should be inserted. This rule, however, does not apply to affidavits by parties In the cause who may describe themselves as the above named complainant or defendant. Where an affidavit began by the recital that "Fred. B. Lee of said county, being duly sworn," etc., but was signed and sworn to by Charles B. Lee, the mis-recital was held to be a clerical error. ^^ An affidavit of several persons by the manner of wording it may be made either joint and several, or joint or several, and great care should be observed in drawing them.^ ® When an affidavit is made by one person only, it begins thus : " A. B., of , being duly sworn, deposes and says that," etc. When made by more than one person, the form is; "A. B., of , and C. D., of , being duly sworn, sever- ally depose and say ; And first, this deponent A. B., for himself, says that, etc.; And this deponent C. D., for himself,,8ays that," etc., and if there be any facts to which both of them can swear, then, "And these deponents, A. B. and C. D., severally say that," etc." Substance of. — An affidavit must be true in substance, with all necessary circumstances of time and place, manner, and other material incidents. It must also be sufficient to sustain the case made by the motion or petition of which it is the ground work. It must set forth the matter positively ; and the circumstances attending it, that the Court may determine whether the deponent's conclusion is correct. Every affidavit of service of writs, or of orders, upon which process of contempt is to be founded, must show legal service; "4 People V. Oak. Circt. Judge, 25 Mich. 113. «6 Torrans v. Hicks, 32 Mich. 307. Oaik by Dtp. Register, see Torrans t. Hicks, supra. »» 1 Dan. Ch. Pr. 893-4. •' 1 Barb. Ch. Pr. 601; 2 Mad. 446. AFFIDAVITS. 283 for until due service be shown, no contempt appears to the Court.''* An affidavit by the defendant t)iat he has a good defense without stating the nature and substance is insufficient. An affidavit must be pertinent and material. Scandalous and impertinent matter should be carefully avoided. If inserted, exceptions may be taken in the same manner as excep- tions to an answer. It is also competent for the Court to order scandalous or Impertinent matter contained therein to be expunged without a reference.^' A party who makes an affidavit to oppose a motion, is only authorized to state the facts, and it is scandalous and imperti- nent to draw inferences, or state arguments in the affidavit reflecting on the character, or impeaching the motives of the adverse party, or his solicitor.*" Affidavit of PviMicaiion. — An affidavit of publication of notice of sale of mortgaged premises in a statutory foreclosure made between seven and eight years after the sale, is not pre- sumptive evidence of the facts therein stated.' - An affidavit which shows publication in a daily newspaper "once in each week for seven successive times," giving the date of the first publication, is insufficient to prove that the notice was published " once in each week, for six successive weeks." '^ Where the affidavit of the publication of a probate order appointing an administrator stated that it was made by "a printer in the office of the , a paper printed and circu- lated in the county of St. Joseph," it was held totally defect- ive.' ' »« 1 Barb. Ch. Pr. 602. " lDan.Ch. Pr. 894. »» Powell V. Kane, 5 Paige, 265; 1 Barb. Ch. Pr. 603. •1 Mundy v. Munroe, 1 Mich. 68. " Perrien v. Fetters, 35 Mich. 234; See Pettiford v. Zoellner, 45 Mich. 358. «• (Jillett V, Needham, 37 Mich. 143; 2 Comp. L. 1871, U 5924,5927. 284 AFFIDAVITS. When the statute requires notice of a guardian's sale to be published "six weeks successively next before such sale," it was held that each week begins to run on the day of publica- tion, and that if fully six weeks' notice, has been given, and there is a fraction of a week left before the day 6f sale, it is unnecessary that such notice should be published on the last recurrence of publication day, e. g.; Where notice of a sale to be held March 4, was first published January 12, it was unnec- essary to insert it after February 23.** Where a notice of sale was ordered to be posted in three of the most public places in the township, and the affidavit of notice specified the place of posting, without stating that they were the most public places, it was held that the notice and proof together constituted a sufficient statement of the fact.'^ The following affidavit of publication was held sufficient, under Section 5927 of the Compiled Laws of 1871 : [I?ffle and Venue.] — " Lee Gray Hull, a printer in the office of the Constantine Weekly Mercury, a public newspaper, printed, published and circulated in the county of St. Joseph, and State of Michigan, being duly sworn, says, that the annexed notice, (chancery order), has been published in said newspaper at least once in each week for six successive weeks ; that the first publication of such notice in said newspaper was on the 12th day of December, A. D. 1872, and the last publication of the same was on the 30th day of January, A. D. 1873."** \_Jurat.'] ISignature.'] When the statute requires notice of a guardian's sale of land to be published in a newspaper printed in the county where the land lies, an affidavit which stated that it was published in a paper "published and drcvlaMng" in the county, taken in connection with a probate order, naming the paper, and des- cribing it as printed in the county, was held sufficient. But a »* Dexter V. Cranston, 41 Mich. 449. ' " Dexter v. Cranston, supra. »• Brown v. Phillips, 40 Mich. 269 AiTlDAVITS. 285 statement that a publication in a paper printed in the county, but not circulating there, would not be sufficient.^' When the statute requires that the affl davit should be made by the foreman or the printer of the newspaper, the words "foreman of the paper," were held sufficient.^* Affidavit of Non-Besidence. — An affidavit of non-residence is an essential pre-requisite to an order for the appearance of non- resident defendants in partition cases. And the recital of an affidavit in the order of publication, is not evidence that it was made.* ' In Pettiford v. ZoeUner, an ejectment suit, the validity of an affidavit for an order of publication in a prior divorce suit was raised. The language was that "the defendant was not a resident of the State of Michigan, as he was informed and believed,. but that her residence was in the city of Toledo, Ohio." While criticising the loose practice in framing such affidavits, the Court said that in view of the nature of the case, they would hold the affidavit good. But that it was not intended to refer to £>ny other than cases where the proof is made in the course of regular suits at law or in equity, and not to the mode of proof in special and extraordinary pro- ceedings, as in Perrien v. Fetters, and GiUett v. Needham.^" Where an affidavit was filed after a pro confesso order was made, but before final decree, it was held sufficient. *i An affidavit of publication, annexed to a report of a foreclosure sale, and therein referred to, is to be considered proof of the facts therein stated.* ^ The Supreme Court will not usually review matters of fact, bearing on the taxation of costs, on affidavits.** To justify the taxation of costs for the attendance of witnesses, the ' ' Dexter v. Cranston, 41 Mich. 449. » ' Dexter v. Cranston, supra. »» Piatt V. Stewart, 10 Mich. 260, Ch. Rule 16. 4 Pettiford v. ZoeUner, 45 Mich. 358; 35 Mich. 233; 37 Id. 143. *i Torrans v. Hicks, 32 Mich. 308. *' Perrien v. Fetters, 35 Mich. 233. *» Arnold v. Bright, 41 Mich. 416. 286 AFFIDAVITS. affidavits must clearly show their materiality and neces- sity.** The affidavit of regularity required by Chancery Eule 92, previous to the taking of a bill as confessed, is .for the conve- nience of the Judge only, the rule only requiring that evidence in some form should be furnished.* ^ Affidavit of Merits. — It is the settled practice of the Court in an affidaAdt of merits to require the party to state what such merits are. (a) The ordinary conclusion in affidavits, "and further this deponent saith not," is not essential. The oath administered is as follows : " You swear that the contents of this affidavit by you subscribed are true, so help you God." The oath having been administered, the officer certifies that fact in a jurat written upon the left side of the paper, thus: Subscribed and sworn to before me, this day of , A. D. 1881. A. M., Notary Public. If the affidavit is made by two or more persons, the form of the jurat is : " The above named deponents, A. B. and C. D., were severally sworn this day of , before me."*' A deposition does not need a separate jurat if the commis- sioner who took it certified that the deponent was duly sworn.*' If the deponent is blind, or cannot write, the officer should certify in the jurat that the affidavit was carefully and cor- *■• Gilbert v. Kennedy, 22 Mich. 5. *5 Ireland v. Woolman, 15 Mich. 253. (a) Bank of Mich. v. Williams, Harr. Ch. 219 ; Stockton v, Williams, lb. 241 ; Thayer v. Swift, Walk. Ch 384 ; Wells v. Booth, 35 Mich. 425; Meach v. Chappell, 8 Paige, 136; Ins. Co. v. Day, 9 Id. 247. " 2 Archb. Prac. 320 ; 1 Barb. Ch. Pr. 604. *' Van Sickle v. Gibson, 40 Mich. 170. AITIDATITS. 287 rectly read over to Mm, in the presence of such officer, before he swore to the same.** SECTION IV. BEFOEE WHOM TO BE BWOEN. "Whenever any oath or affidavit is, or may be required, or arthorized by law, in any cause, matter or proceeding, except oaths to witnesses and jurors in the trial of a cause, and such other oaths as are or may be required by law to be taken before particular officers, the same may be taken before any justice, judge, or clerk of any court of record, circuit court commissioner, notary public, or justice of the peace, or any Eegister or Commissioner. ** Oaths, affidavits, and depositions in any cause, matter, or proceeding in any court of record, may also be taken before any commissioner appointed by such court for that purpose.^" Our statute provides that 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 proceedings 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 seal, to have been taken and subscribed before him, specify- ing 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 *' 1 Dan. Ch. Pr. 897 ; And see p. Ante. *» 2 Comp. L. ]871, ? 5964. »« 2 Comp. L. 1871, § 5965. 288 Ai'iUDAVri'S. member thereof, must be certified by tlie clerk of the court under the seal thereof; or, Third, If such affidavit be taken in any other of the United States, or in any territory thereof, it may be taken before a Commissioner, appointed by the Governor of this State to take affidavits 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 peice, 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 the county where such affidavit shall be taken under the seal of said court. °^ An affidavit cannot be sworn to before the solicitor of rec- ord of either of the parties.* ^ SECTION V. PILING AND MAEKLNG AFFIDAVITS. Affidavits used in court must be filed with the Eegister, where the decree or order founded .thereon was entered. On entering common orders, which require an affidavit to justify their entry, the affidavit should be previously filed. And upon entering decrees or special orders, the successful party must file the affidavits used by him ; and they should be marked by the Eegister as having been read.*^ " 2 Comp. L. ? 5879, as amended by laws of 1879, p. 145. » 2 Laws of 1877, p. 3 ; McCaslin v. Camp, 26 Mich. 391. »» 2 Barb. Ch. Pr. 606. CHAPTBE XXIII. INJUNCTIONS. Section 1. Nature and Uses. 2. Differ KNT Kinds. 3. In What Cases Granted and Against Whom. 4. How Obtained and Issued. 5. To Stay Proceedings at Law. 6. Service of and Effect. 7. Breach of. 8. Dissolution. SECTION I. NATUEE AND USES. A writ of injunction is a judicial process, operating in per- sonam, sometimes called the right arm of the Court of Chan- cery, and whereby a party is required to do, or refra:'n fi om doing, a particular thing, according to the exigency of the writ.i The allowance is discretionary, and not of right, and calls for good faith in the petitioner. ^ It seeks to prevent a medi- tated wrong more often than to redress an injury already done.* ' Kerr on Injunctions, 11 ; High on Inj. 2 ; 2 Story's Eq. Jur. J 861 ; 2 Dan. Ch. Pr. 4th Am. Ed. 1613. ' Edwards v. The AUouez Mining Co., 38 Mich. 46. « 2 Story's Eq. Jur. i 862; Eden on Inj. Ch. 1, p. 1 ; Mitf. Eq. PI. 47, 37 289 290 INJUNCTIONS. In theory its purpose is to prevent irreparable mischief. It stays an evil, the consequences of which could not adequately be compensated if suffered to go on. * The most common form of injunction is that which oper- ates as a restraint upon the party in the exercise of his real or supposed rights, and is called the remedial writ. The other form commanding an act to be done is called the judicial writ, because it issues after a decree, and is in the nature of an exe- cution to enforce the same.* SECTION II. DIFFERENT KINDS OF INJUNCTIONS. Injunctions are either provisional, general, or perpetual. 1. Provisional Injunctions. -^These are such as are to continue until the coming in of the defendant's answer, or until the hearing of the cause, or until the filing of the commissioner's report.^ Injunctions of this nature are either preliminary or temporary. Preliminary Injunctions.— In bills asking for a perpetual injunction, it is often necessary to stay the proceedings of the defendant during the pendency of the suit. If a preliminary writ is desired, it must be prayed for in the bill. A preliminary injunction, before answer, rests in the sound discretion of the Court, and ought not to be granted unless the injury is pressing and immediate, and the delay dangerous to the rights of the complainant.' * Edwards v. AUouer Min. Co. 38 Mich. 46, and illustrations. « 2 Story's Eq. Jur. I 861. « 1 Barb. Ch. Pr. 608 ; 2 Dan. Ch. Pr. 1614 ; Hilliard on Inj. p. 6. ' 2 Dan. Ch. Pr. 1614; 2 Story's Eq. Jur. 2 863; Osbom v. Taylor, 5 Paige, 515; Ch. Rule 82. INJUNCTIONS. 291 But it will not be granted to disturb the possession of real estate of a defendant, or to divest him of a legal right.* Seowniy Before AUmmng Writ. — The issue of a preliminary- injunction is properly confined to cases where, unless granted, there is good reason to fear irreparable injury. The same principle should operate to prevent its being granted, without security, in any case where, if it should turn out to have been improvidently granted, it may lead to danger of irreparable injury to the defendant. Inasmuch as a suit for damages will not lie generally, if at all, for the abuse of the power of enjoining, the reason is obvious for preventing such mischief by requiring an adequate bond. Under tl^eNew York Chancery Practice an injunction-bond was required in all cases where an injunction was allowed by the Cha.ncellor or Injunction Master out of court, (a) ' As the issuing of these preliminary writs appeals to the discretion of the Court, too much vigilance cannot be exer- cised in requiring full provision for redress, by an adequate injunction-bond, where delay may work great damage.(&) Temporary Injunctions. — These are granted where necessary to prevent irreparable injury before regular notice of the application for a general injunction can be given. In such cases the Court will grant an order to show cause, and allow a temporary injunction in the meantime. But the temporary ' injunction will fall if the order to show cause is not made absolute, (c) Temporary injunctions may also be granted, where the case is urgent, immediately on filing the bill, and to continue until the answer is filed.' ' Arnold v. Bright, 41 Mich. 207, and cases cited; Hemingway v. Preston, Walk. Ch. 528. {a) 2 Barb. Ch. Pr. 622. (i) Torrent v. Muskegon [Oct. Term, 1881], 47 Mich. (c) See Ch. Rule 82. » 1 Barb. Ch. Pr. 610; 1 Dan. Ch. Pr. 1663; Mintum v. Seymour, 4 Johns, Ch. 497. 292 rNJinsroTioNB. Mandatfrry Injunctions. — Though a Court of Equity has no jurisdiction to compel the performance of a positive act tend- ing to alter the existing state of things, such as the removal of a wall already executed, yet it may by framing the order in an indirect form, compel a defendant to restore things to their former condition, and so effectuate the same results as would be obtained by ordering a positive act to be done. The order, when framed in such a form, is called a manda- tory injunction, (a) The jurisdiction should be exercised with extreme caution, still if the injury is of so serious or material a character that the restoring things to their former condition is the only rem- edy which will meet the requirements of the case, or if the act complained of is in breach of an express stipulation, the injunction will issue. The jurisdiction especially extends to cases of obstruction to easements, or rights of like nature, in which a structure, erected and kept as the means of preventing such enjoyment, will be ordered to be removed, as part of the means of restraia- ing the defendant from interrupting the enjoyment of the right. If the act complained of is continued or carried on after clear and distinct notice that it is objected to, the jurisdiction will be exercised more freely than in cases where complaint is not made until after it is completed. (6) But there is no rule which prevents the Court from grant- ing a mandatory injunction when the injury complained of has been completed before the filing of the bill. Still there must be no unreasonable delay in making the application.(c) (a) Eden on Inj. 231, § 12. For full discussion of the subject, see Rogers L. & M. Works V. E. R. R., 5 C. E. Green, (N. T.) 387; Lonewood V. R. R. v. Ba- ker, 27 N J. 166. [b) Jacomb v. Knight, 32 L. J. Ch. 601. ( <: ) See Atty. Gen. v. Mid- Kent R. W. Co., 3 Law Rep. Ch. App. 100, for distinction in cases of nuisance and contract. INJUNCTIONS. 293 While a mandatory injunction is seldom granted before the hearing, it may be had upon interlocutory application, (a) Continuing Fromsional Injunction. — ^A provisional injunction is frequently ordered by the Court to be continued until the hearing. Thus, where the defendant in his answer, admits the equity of the bill, but sets up new matter of defense on which he relies, the injunction wiU be continued to the hear- ing.' If an answer on oath is waived by the bill, the injunction will not be dissolved of course upon defendant's answer on oath, provided the material facts in the bill are verified by the af&davit of some person besides the complainant, annexed to, and filed with the bill. And whenever on a motion to dissolve an injunction, it appears from the answer that the complainant was entitled to it at the time of obtaining it, but there still remains a dispute between the parties, the injunction is usually continued until the final hearing or further order.*" 2. General Injunctions. — A general injunction continues in force until the further order of the Court, and may be granted either on the filing of the bill, or substituted in the place of the provisional injunction upon the failing of the latter; or it may be granted at the final hearing, whether there has been a previous injunction or not in cases where a perpetual injunc- tion is improper. A party who has appeared, and whose rights will be affected by the issuing of a general injunction, is entitled to notice of the application and service of the order to show cause. ** 3. Perpetual Injunctions. — These 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, (a) Gale v. Abbott, 8 Jur. N S. 987 ; Lane v. Newdigate, 10 Ves. 192 ; Hep- bum v. Ix)rdan, 2 H. & M. 352. J^or casts of breach of Covenant, see Kerr on Inj. 534,535. •" Lynch v. Colgate, 2 Harr. and Johns. 34. " 2 Dan. Ch. Pr. 1667. 294 INJITNCTIONS. , or perpetually restrained from the commission of an act wMch would be contrary to equity and good conscience. ^^ The Circuit Court for each county has equity jurisdiction of all matters concerning waste, in which there is not a plain, adequate and complete remedy at law; and may grant injunc- tions to stay or prevent waste ; and whenever it becomes neces- sary or proper to have any fact tried by a jury, such Court may award a feigned issue for that purpose as in other cases, i* To entitle a complainant to a decree at the final hearing for a perpetual injunction, it is not necessary that he should have previously obtained it upon an interlocutory application. And though he may have failed upon the answer of the defendant to obtain an injunction, he will be at liberty to claim it at the hearing, i* The case will be the same though he may have made no application for an interlocutory injunc- tion. If an injunction has been obtained upon an interlocutory application, and it is intended to continue it at the hearing, the decree should so state it.' ^ An injunction will only be made perpetual at the hearing, and will remain in force after the death of the party.'® The ground on which injunctions are granted against per- sons in possession of personal property, and ostensibly the right- ful owners, upon an ex parte application, is the protection of the fund or property, when it appears that without such inter- position there is danger that it may be lost to the complainant if he succeed in establishing his title. ' ^ An injunction does not lie when the complaint is, not that a new grievance is created, but an old one is not discontin- ued.'* 12 2 Dan. Ch. Pr. 1614; Bushnell v. Harford, 4 Johns. Ch. 302. 1" 2Comp. L. 1871, ? 6369. 1* 2 Barb. Ch. Pr. 614. * ' Seaton's Forms of Decrees, 300. i« 1 Barb. Ch. Pr. 615. " Thayer v. Swift, Harr. Ch. 430. 1' Cooper V. Detroit, 42 Mich. 584. rsTJinsrcTioNS. 295 It is doubtful whether a party is ever entitled as a matter of riffht to a remedy by injunction to restrain the commission of a threatened injury. If the injury is likely to be irreparable the Court ■will interfere ; but it will examine into all the cir cumstances, and if it is apparent that the relief sought is dis- proportioned to the nature and extent of the injury sustained, or likely to be, the Court will leave the parties to seek some other remedy.^' When a bill asking for a preliminary injunction is dismissed, an appeal does not revive the injunction, and a disregard of it is no breach. 2° An injunction bill strictly speaking, is one asking no other relief. When the bill prays other relief, the injunction is regarded as ancillary to such relief, and falls with it.^^ Divesting of Bights by Preliminary Injunctions. — In the case of Tawas B. B. v. Iosco Circuit Judge, (a) the Court say that it has repeatedly decided that any order or decree divesting pos- session or rights on a preliminary inquiry is illegal, and void, and that such decree need not be obeyed. SECTION III. IN WHAT CASES GRANTED, AND AGAINST "WHOM. It may be stated generally that wherever a complainant is entitled to equitable relief, if that relief consists in restraining the commission or continuance of some act of the defendant, the Court will enjoin him unless the right is a doubtful one, " Hall V. Rood, 40 Mich. 49; White v. Forbes, Walk. Ch. 114; Norris v. Hill, I Mich. 210; Briggs v. Withey, 24 Id. 136 ; Fox v. Holcomb, 32 Id. 495. '" Brevoort v. Detroit, 24 Mich. 323. •• Blackwood v. Van Vleet, 11 Mich. 252. (a) 44 Mich. 482; And see People v, Simonson, 10 Id. 335; Pt. H. & G. R. R, Co. V. St, Clair Circt. Judge, 31 Id. 45(5; Sailing v. Johnson, 25 Id. 489; McCombs V. Merryhew, 40 Id. 721 ; Arnold v. Bright, 41 Id. 207. 296 INJUKTCTIONS. in which event the Court will refuse so to do until the right is established at law.^^ To authorize an injunction against the enforcement of a legal right, a clear equity superior to that of the legal owner must be shown, and such as in a court of equity would control it.2s Possession of Lands. — ^Possession of lands will not be dis- turbed by means of a preliminary injunction, even though the defendant be a wrong-doer ; the principle being that the Court has no power to deprive a man of a valuable right except on final hearing. ^ * [See " Beceivers."1 Public Officers. — A Court of Chancery has jurisdiction not only to keep public officers within their jurisdiction, but also to restrain any oppressive exercise of powers whereby the rights of the public or of individuals will be invaded, (a) ■ The Court, however, will not restrain public ofi&cers who are acting illegally unless the alleged injury is great and irre- parable. ^^ But in case of official oppression an injunction " High on Inj. Ch. 18, p. 442; Hawkins v. Clermont, 15 Mich. 511. » » Boinay v. Coats, 17 Mich. 411 ; Tawas R. R. Co. v. Circt. Judge, 44 Id. 479; Birdsall v. Johnson, lb. 134. J^or cases where the Court retained the suit for an assessment of damages where the principal relief sought was denied, see Brown v. Gardner, Harr. 291; Carroll v., Rice, Walk. Ch. 373; Whipple v. Farrar, 3 Mich. 436; Hawkins v. Clermont, 15 Id. 511. »* Arnold v. Bright, 41 Mich. 207; Tawas R. R. v. Iosco Ct., 44 Id. 483; Berry v. Whitney, 40 Mich. 72 ; McCombs. v. Merryhew, lb. 721 ; People v. - Simonson, 10 Mich. 335 ; People v. St. Clair Ct. 31 Mich. 456 ; People v. Jones, 33 Mich. 303 ; Sailing v. Johnson, 25 Mich., 489 ; And see Ramsdell v. Maxwell, 32 Id. 285 ; Hemingway v. Preston, Walk. Ch. 528 ; Payne v. Atterbury, Harr. Ch. 416; Stillwell V. Williams, 6 Madd. 38; High on Receivers, \ 739; High on Inj. \ 257. (a) Cooper v. Alden, Harr. 72, 91 ; Merrill v. Humphrey, 24 Id. 170; Clem- ent V. Everst, 29 Id. 19 ; Bristol v. Johnson, 34 Id. 123 ; Marq. R. R. v. Marquette, 35 Id. 504; Flint R. R. v. Aud. Gen'l, 41 Id., 635; Folkerts v. Power, 42 Id. 283; Upjohn v. B'd of Health of Richland, [Oct. Term, 1881], 47 Id, " Brown v. Gardner, Harr. Ch. 291 ; Cooper v, Alden, lb. 72; Williams V. Detroit, 2 Mich. 560 ; Woodbridge v. Detrbit, 8 Id. 274 ; Palmer v. Rich, 12 Id. 414 ; Miller v. Grandy, 13 Id. 540; Conway v. Waverly, 15 Id. 257; School Dist. V. Dean, 17 Id. 223 ; Ryan v. Brown, 18 Id. 196 ; Kinyon v. Duchene, 21 Id. 498; Hathaway v. Mitchell, 34 Id. 164; And see Cooper v. Williams, 4 Ohio, 253. ' V , iNjinsrcTioNS. 297 ■will be granted for a less grievance than in a case of private misconduct. 2* State courts have no authority to restrain proceedings of federal of&cers acting officially.^ ' The Attorney General may file an injunction bill to enjoin an abuse of municipal powers, but he should proceed by information. ^ ** On a motion for an injunction the statements in the bill must be taken as true, and the relief sought must be consistent with the bm. 2 9 Bin to be First Mled. — "No injunction can be issued in any case until after the bill has been filed ; and a subpoena must precede its issuance.*" By this it is not meant that the bill must necessarily be against the party who is to be re- strained, ^i The bill must expressly pray for an injunction both in the prayer for process and relief. It cannot be granted under a prayer for general relief, unless the necessity for it grows out of the proceedings.'^ At the hearing, however, the Court will, when it is necessary for the purposes of complete jus- tice, direct an injunction to issue, although jt has not been prayed by the bill.'* Oath. — Injunction-bills calling for preliminary relief, must be duly verified.** •• Ryan v. Brown, 18 Mich. 212 ; Osbom v. U. S. Bank, 9 Wheat. 738. •' People V. Kidd, 23 Mich. 440. " Atty. Gen. v. Detroit, 26 Mich. 263; Atty. Gen. v. Moliter, lb. 444. When not granted : See Mercer v. Williams, Walk. Ch. 85 ; Norris v. Hill, 1 Mich. 210; Briggs v. Withey, 24 Id. 136 ; Bennett v. Seligman, 32 Id. 500; Blanchard v. D. L. & L. M. R. R. Co., 31 Id. 43 ; Hall v. Rood, 40 Id. 46 ; Hill V. Mitchell, 40 Id. 389; Cooper v. Detroit, 42 Id. 584; Sullings v. Goodyear D. Co., 36 Id. 314. >» Mi(h. State Bank v. Hastings, Walk. Ch. 9. '» Peltier v. Peltier, Harr. Ch. 19 ; Sullings v. Goodyear, 36 Mich. 314. •I 1 HofF. Ch. Pr. 76. • ' Walker v. Devereux, 4 Paige, 229. " 2 Dan. Ch. Pr. 1614. •* Chancery Rule 8 ; Moore v. Cheeseman, 23 Mich. 336. 38 298 INJTJNCTIONS. An injunction-bill, strictly speaking, is one that asks no other relief. But when the bill prays other relief, the injunc- tion is regarded as ancillary to such relief, and falls with it.^^ Where the facts stated in the bill are not within the knowl- edge of the complainant, an affidavit of some other person who can swear positively to their truth should be annexed. The case of a creditor's bill forms an exception to the gen- eral rule requiring the facts to be sworn to positively.** Trespasses, Nuisances. — An injunction will lie to restrain trespasses'' where complainant has the legal title, and the injury complained of is irreparable in its nature. But the / Court does not in general interfere to prevent a mere trespass, unless the complainant has been in the previous undisturbed enjoyment of the property, under claim of right, or where, from the irresponsibility of the defendant, or otherwise, the complainant could not obtain relief at law.** s« Blackwood v. Van Vleet, 11 Mich. 252 ; Widner v. Olmstead, 14 Id. 124. s" Ch. Rules 102, 103. " 2 Story's Eq. Jur. g 928 ; High on Inj. ? 460; Kerr on Inj. 287. »8 1 Barb. Ch. Pr. 618 ; 2 Story's Eq. Jur. ? 928 ; Hart v. Mayor, 3 Paige, JiXO- As to Nuisances : See White v. Forbes, Walk. Ch. 112; Robinson v. Baugh 31 Mich. 290 ; Gilbert v. Showerman, 23 Id. 450. As to Streets : See Cooper v. Alden, Harr. Ch. 72 ; People v. Carpenter, 1 Mich. 273; Pratt v. Lewis, 39 Mich. 7. As to Restraining Banks: Barnum v. Bank of Pontiac, Harr. Ch. 116; Atty. Gen. v. Bank of Michigan, lb. 315 ; Fay v. E. & K. R. R. Bank, lb. 194; Atty. Gen. v. Oak Co. Bank, Walk. Ch. 90. As to Water-powers, Mill-owners, etc.: White v. Forbes, Walk. Ch. 112; Middleton v. F. R. Booming Co. 27 Mich. 533 ; Dumont v. Kellogg, 29 Id. 420 ; Hathaway v. Mitchell, 34 Id. 164 ; Hoxsie v. Hoxsie, 38 Id. 77 ; Hall v. Ionia, lb. 493. INJUNCTIONS. 299 SECTION IV. HO"W" OBTAINED AND ISSTJED. What Officers may Grant. — Injunctions may be allowed by the Judge of the Circuit Court and other courts of equivalent jurisdiction, and in certain cases by circuit court commis- sioners. The statute formerly provided that the Judges of the sev- eral courts should designate a circuit court commissioner in each county, within their respective circuits, who should perform within their respective counties all the duties pre- viously discharged by injunction masters, under regulations to be prescribed by the Supreme Court. ^ ' But by the Laws of 1881 the provision was repealed, (a) Injunction masters possess the same power in Chancery cases within their respective counties as may be properly exercised by a Circuit Judge in chambers, unless restricted by rule.*" The general powers of such injunction master have been restricted by the Supreme Court in the following respects. He is prohibited : 1. From vacating an order or decree of the Circuit Court, or any order made by a Circuit Ju» Taylor v. Snyder, Walk. Ch. 490. "» 2Dan.Ch.Pr. 1679,2 3. CHAPTEE XXIV. EECEITEES. A Eeceiver in Chancery is defined to be an indifferent person between the parties to a suit, appointed by the Court, to receive and preserve the property or fund in litigation, pending the suit, where it does not seem reasonable to the Court that either party should do it.^ He is spoken of as the right hand of the Court.* As a general rule, a receiver wUl only be appointed upon a bill filed for that purpose,* though it is not indispensable that the bill should contain a specific prayer, if the facts stated are sufficient to justify the appointment. An order appointing a receiver, when no suit is pending, concerning the property of which he is put in charge, is void.* Our statute provides that each Circuit Court shall have power to appoint receivers in all cases pending in Chancery, when such appointment is dlowed by law, as well in vacation as during the session of the court. ^ Application for such appointment may be made to the Cir- cuit Judge at chambers, and shall be heard under such regu- lations as may be by general or special rules prescribed.^ 1 Edward on Rec. 2 ; 2 Dan. Ch. Pr. 1715 ; High on Rec. 2. " » Elliott V. Warford, 4 Md. 80. • High on Receivers, J 83. * M. & M. Bank of Detroit v. Kent Circuit, 43 Mich. 292. ' 2 Comp. L. 1871, ? 5070 ; Hazeltine v. Granger, 44 Mich. 504. « 2 Comp. L. 1871, i 5072. 315 316 EECElVEEg. Where complainant by his bill shows a legal title to lands in possession of the defendant, and from the answer of defend- ant a strong presumption arises of title in complainant, a receiver will be appointed.'' The appointment of a receiver is a matter resting in the sound discretion of the Court; and when appointed, is treated as an officer of the court, and subject to its orders, and entitled to its advice and protection. He has but little dis- cretion allowed him, and must apply to the Court from time to time for authority to do acts beneficial to the estate.* His possession is the possession of the Court. ^ The power to make such appointment is most usually in actions either to prevent fraud, save the subject of litigatioji from material injury, or rescue it from probable destruction. i" Divesting of Legal Titles. — ^While mere equitable rights and titles may, in suitable cases, be made available by a direct pro- ceeding in equity, to satisfy judgments, through a receiver or otherwise, the transfer of the legal title to land, through the immediate power of the Court, where no lien has been pre- viously obtained, in order to satisfy judgment creditors, is not an attribute of the traditionary jurisdiction of equity. And neither is it conferred by statute.'^ [_8ee Injunctions, Ante p. 296.] The power of a Court of Equity by appointing a receiver to draw to itself the jurisdiction to try disputed titles, is exceptional, and must rest on facts that render common law remedies inadequate or improper in the particular instance. '^ Who may he. — Grenerally speaking, a receiver should be a person wholly disinterested in the subject matter of the suit, ' Payne v. Atterbury, Harr. Ch. 414. s 1 Dan. Ch. Pr. 1715-16 : 2 Story's Eq. Jur. U 831, 833; High on Rec. ?? 7, 178. 9 High on Rec. § 114. i" High on Rec, § 11. » 1 Griswold V. Fuller, 33 Mich. 268 ; Hazeltine v. Granger, 44 Id. 503 ; Tawas R. R. v. Iosco Circuit, lb. 482. i» M. & M. Bank v. Kent Circuit Judge, 43 Mich. 292. EECEITEES. 317 though in some cases a person mixed up with the suit may be appointed;! 8 ag where an insolvent partner files a bill for the dissolution of the partnership. In such case the solvent partner will be appointed, if no question is made as to his capacity and integrity. But in no event will a party to the cause be appointed unless he is appointed by the Court at the hearing, i* Neither a commissioner, a solicitor in the cause, his part- ner, the next friend of an infant complainant, nor, gen- erally, a trustee, is eligible.' ^ Appointment of. — As a general rule, a receiver will not be appointed before the answer is filed, unless it clearly appears that the justice of the case requires it.' ^ The application is usually made by motion on the answer of the defendant, but where it is made to appear to the Court by affidavit that there is danger of loss, it may be made before answer. 1'' In Oreditor's Suits, Etc. — ^Notice, when necessary, must be served upon all necessary and interested parties. [See Judg- ment Oreditor's Bills.'] As a general rule, a receiver will not be appointed ex parte before the defendant has had an opportunity to be heard, except where he is out of the jurisdiction of the Court and can- not be found ; or where it becomes necessary for the Court to interfere before there is time to give notice to the adverse party, in order to prevent the destruction and loss of prop- erty. '' On hearing the motion, the Court will either make the appointment or refer it to a commissioner to inquire into the matter and report to the Court a suitable person. 18 Hubbard v. Guild, 1 Duer, 662. 1* 1 Dan. Ch. Pr. 1732. " 1 Barb. Ch. Pr. 666 ; 1 Dan. Ch. Pr. 1733 ; M. & M. Bank of Detroit v. Kent Circuit, 43 Mich. 292. 1 High on Rec. ? 106. " 1 Dan. Ch. Pr. 1734; 1 Barb. Ch. Pr. 667. 18 People V. A. & S. R. R., 57 Barb. 204; High on Rec. Ill to 117. 318 KEOEIVEES. The order of appointment should be drawn with special care. It should state distinctively over what property the receiver is appointed, and the extent of his powers. It should also require the amount of the bond to be executed, with sure- ties, to be approved by either a commissioner or by the Court. ^ ' A receiver cannot employ a solicitor as his own counsel, unless by consent of all parties concerned.^* Corporations ; Bequestraiion. — Whenever a judgment at law or a decree in Chancery shall be obtained against any corpora- tion, incorporated unde* the laws of Michigan, and an execu- tion issued thereon shall have been returned unsatisfied, in part or in whole, upon the petition of the person obtaining such judgment or decree, or his representatives, 'the court within the proper county may sequester the stock, etc., and appoint a receiver.^ 1 Upon final decree, the Court may cause a just distribution of the property of such corporation, and of the proceeds thereof, to be made among its fair and honest creditors, in proportion to their debts, and they shall be paid in the same order as pro- vided in Chapter 206 of the Compiled Laws.^'' Whenever an injunction shall issue against any bank for any violation of its charter, on the application of any creditor, the Court may proceed to final decree. And the Court may, in any stage of the proceeding thereupon, appoint one or more receivers to take charge of the property and effects of such corporation, and to collect the debts and property belonging to it, and who shall in all respects be subject to the control of the Court. ^^ Such receivers shall possess all the powers and authority conferred upon those appointed under Chapter 207.2* . >» 2 Story Eq. Jur. ? 829a. «» M. & M. Bank of Det. v. Kent Circuit, 43 Mich. 292. »i 2 Comp. L. 1871, ? 6565 ; Cook v. D. & M. R. W. Co., 45 Mich. 453. " 2 Comp. L. 1871, ? 6566. »» 2 Comp. L. 1871, ?g 6568, 6569, and 3 6570, as amended by Laws of 1877, p. 129. " 2 Comp. L. 1871, § 6570; Atty. Gen'l v. L. & F. Ins, Co., 4 Paige, 224. REOEIVEES. 319 Case of Voluntary BissolvMon. — Whenever the directors, trustees, or ofi&cers of any corporation, or a majority of them, shall deem it beneficial to the stockholders that such corpor- ation should be dissolved, they may apply to any Court hav- ing equity jurisdiction, by petition for a decree dissolving the same.^' Such application should contain a statement of the reasons therefor, with a full, just and true inventory as follows : All the estate, both real and personal, in law and equity, of such corporation, and all the books, vouchers, and securities relat- ing thereto ; also a true account of the capital stock, specifying the names and places of residence of stockholders, the number of shares belonging to each, the amount paid in, and the amount due thereon ; a statement of all incumbrances, a true account of all the creditors, with a statement of their places of residence, the amounts due to each, etc. To every such petition must be annexed an affidavit of the applicants, stating that the facts set forth in such application are true so far as they respectively know.^^ Upon filing such petition, affidavit, etc., an order is entered requiring all per- sons interested in said corporation to show cause, if any exist, why such corporation should not be dissolved, before some commissioner to be named, at some time therein specified, not less than three months from the date thereof. Notice of the contents of such order must be published once in each week for three weeks successively, in such paper as the Court may direct, and in a newspaper published in the county where the principal place of conducting the business of such corporation shall be situated, if any be published there. On the day appointed, such commissioner shall proceed to hear the allegations and proofs of the parties and take tes- «5 2 Comp. L. 1871, ? 6586; Town v. Bank of River Raisin, 2 Doug, 530; Bank Commissioners v. Bank .of Brest, Harr. Ch. 106. " 2 Comp. L. 1871, §? 6587, 6588. 320 EECEIVEES. timony in relation thereto, and report the same to the Court with a full statement of the proceedings before htm. Upon the coming in of said report, if it shall appear that such corporation is insolvent, or that a dissolution will be beneficial to the stockholders, and not injurious to the public interests, such corporation shall be dissolved. Any of the officers or stockholders of said corporations may be appointed receiver, and shall give such security and in such penalty as the Court may direct. ^^ Such receivers shall be vested with all the estate of such corporation from the time of the filing of such security, and shall be trustees of such estate for the benefit of the creditors and stockholders of such corporation.^* And they shall have all the powers and authority of trustees to whom an assign- ment of the estate of an insolvent debtor may be made under the 14:5th Chapter of the Eevised Statutes of 1846. [For the proceedings of such receivers, see Appendix, Sec- tions 6597 to 6623.] The foregoing proceedings do not extend to any incorpor- ated library or lyceum society, any religious incorporation, any incorporated academy or select school, nor to the proprie- tors of any burying-ground, duly incorporated. ^^ A Court of Chancery cannot take from the directors of a corporation, or vest in a receiver the management and control of the corporate business except in proceedings under the statute.^" Courts will not interfere with the discretion of receivers appointed to carry on a business unless some abuse is alleged or shown.^i a' Covert v. Rogers, 38 Mich. 363. 2 8 2 Comp. L. 1871, §? 6589 to 6596 incl. " 2 Comp. L. 1871, ? 6619. »» People V. St. Clair Circuit, 31 Mich. 456; Bany v. Briggs, 22 Id. 201; Sailing V. Johnson, 25 Id. 489 ; People v. Jones, 33 Id. 303. . SI 2 Comp. L. 1871, ? 6619; Taylor v. Sweet, 40 Mich. 737. EEOBITEES. 321 The insolvfency of a receiver ortrustee is a sufficient reason for removing him.^^ A receiver cannot be sued or gamisheed without leave of the Court which appointed him. ^^ A receiver cannot take summary possession of premises without proper legal proceedings ; and an order authorizing him to do so, granted on a mere special proceeding, will not be sustained.** In Payne v. Atterbury,^^ the Court say that "where the complainant, by his bill, shows a legal title to laiids in the possession of the defendant, and from the answer of the defend- ant a strong presumption arises of title in complainant, a receiver will be appointed. [See " Injunctiom."~i Neglect to apply for a receiver within a reasonable time will be deemed a waiver of the right to make such an applica- tion.*^ In Gases of Alimony. — Where the husband neglects or refuses , to pay, or give security for the payment of alimony, in pursu- ance of an order of Court, the Court may award execution for the collection of the same or sequester his real and per- sonal estate, and appoint a receiver thereof, and cause the personal estate and rents and profits of such real estate to be applied to the payment thereof; or if the said real estate consist wholly or in part, of wild and uncultivated land, or unproductive estate, the Court may, in its discretion, order a sale thereof.*^ = a Thayer V. Swift, Harr. Ch.430; Brown v. Vandermeulen, 41 Mich. 418. "8 People V. Brooks, 40 Mich. 333. ' « Sailing V. Johnson, 25 Mich. 489 ; Port Huron v. St. Clair Ct. 31 Id. 456 ; Pt. Huron v. Jones, 33 Id. 303 ; McCombs v. Merryhew, 40 Id. 721 ; Arnold v. Bright, 41 Id. 207; Barry v. Briggs, 22 Id. 201. »5 Harr. Ch. 417; Stiltwell v. Williams, 6 Mad. 38. s« Brown V. Chase, Walk. Ch. 43; Gould v. Tryon, lb. 353. »' 2 Comp. L. 1871, ? 4759, as amended by Laws of 1877, p. 32; Perkins V. Perkins, 16 Mich. 162. 322 EEOEITEES. Insurance Companies. — Wliere mutual, fire and other insur- ance companies, fail to comply with certain statutory regula- tions, receivers will also be appointed.*' Partition. — Whenever, pending partition proceedings, it shall appear that it will be beneficial to any part owner of premises, that the same should be leased, or protected from waste, trespass, or injury, or for any other purpose, the Court may appoint a receiver thereof.* ^ As to Partnership. — It is the general practice of Courts of Equity not to interfere and appoint a receiver in partnership cases, unless the object of the suit is to obtain a dissolution of the partnership.*" [For the various causes of interference, see CoUyer on Part- nership, page 236 ; Parsons on Partnership.] Mortgage Oases. — As a mortgage in this State conveys no title to the mortgagee, he is not entitled to the possession until after foreclosure and sale.* ^ ISee Mortgages."] Judgment Debtors. — As to the appointment of receivers by Courts of Law in proceedings against judgment debtors, see 2 Comp. Laws, 1871, Sections 6517 and 6518.* * [For a full and exhaustive discussion of the subject of receivers, see Mr. High's able work.]' A receiver appointed under a creditor's bill, in another State, and to whom a debtor had made a general assignment of all his property, with a recital of the proceedings, may sue in the courts of -the State, provided that the assignment was made in due form for the transfer of an interest in lands under our statutes. In such case he sues not strictly as receiver, but as assignee holding the legal interest of the debtor. And it is 3» 1 Comp. L. 1871, 3 2990; Laws of 1873, p. 115, i 17; Laws of 1881, p. 150. " 2 Comp. L. 1871, ? 6352. *» Story on Part. | 229. *i Wagner v. Stone, 36 Mich. 366. *» Ehlers v, StoeclUe, 37 Mich, 261 ; Reed v. Baker, 42 Mich. 272. KEOEIVBES. 323 Unnecessary for h^ln to go behind said recitals and, prove the prior proceedings. They will be taken as true so fer as they become material.*^ Garnishee Process. — Eeceivers and Eegisters in Chancery cannot be interfered with by garnishee process so as to subject money under their official control to the ordinary operation of that action, without leave of the court.** *' Grayson v. CSiurch, 7 Mich. 36; Wood v. Parsons, 27 Id. 159. ** Voorheesv. Sessions, 34 Mich. 99; Trenper v. Banks, 40 Mich. 333; Seevers v. W. S. Wheel Co., 43 Id. 278; High on Inj. ?? 137, 151; Kerr on Inj. 193 ; Columbia B. Co. v. De Golyer, 115 Mass. 67 ; Noe v. Gibson, 7 Paige, 615. CHAPTEE XXV. NE EXEATS. Section 1. Nature of and when Proper, 2. How Obtained. 3. Proceedings Upon. 4. Discharging. SECTION I. NATUEB OP AND WHEN PEOPEE. The writ of ne exeat, though originally applied in England only to great political objects and purposes of state, has become in the United States an ordinary process, issuing under the seal of the Court, to prevent, in the proper cases, a person from leaving the State. ^ In general, it may be said that the writ will not be granted unless in cases of equitable debts and claims, for in regard to civil rights it is treated as in the nature of equitable bail.' Whenever the defendant intends leaving the State, the com- plainant, upon producing evidence of such intention, and of his equitable claims against him, has a right to this equitable bail. If, therefore, the debt be such as that it is demandable in a suit at law, the writ wiU be refused, as the party has his remedy at law.* 1 For a concise history of the writ, see 2 Story's Eq. Jur., §? 1467, 1469; Beames on Ne Exeat 16, 17 ; 2 Barb. Ch. Pr. Chap. VI, p. 647. ^ Beames on Ne Exeat, 30; 2 Story's Eq. Jur., § 1470; Seymour v. Hazard, 1 Johns. Ch. 1 ; 2 Dan. Ch. Pr., pp. 1698, 1699, and notes. » Smedberg v. Mark, 6 Johns. Ch. 138. 324 NE KXEATS. 325 Under the English practice there were two exceptions : one ia the case of alimony decreed to the wife, when the husband threatened to leave the realm j the other in a Bill for an Account, where there is an admitted balance due by defendant, but a larger sum is claimed by the complainant.* Its purpose is to render the party personally responsible for the performance of the ordera and decrees of the Court by preventiQg him from withdrawing himseK from its jurisdic- tion.^ The same limitations which are imposed as to the remedy in England exist in the present practice in those of the United States, where the writ is allowed.^ SECTION II. HOW OBTAINED. Must be Applied for On BUI. — Generally a we exeat cannot be applied for except upon a bill previously filed.'' But when the application is against a solicitor in a cause in court, or where it is made by one defendant against another, or against the complainant in a matter of account, no new bill is necessary." It may be applied for at any stage of the case.^ If the party in the progress of the suit threatens to leave the country the writ may be applied for by petition without 4 Mitchell V. Bunch, 2 Paige, 606, 617; 2 Story's Eq. Jur., I 1473. Note.— See 1 Smith Ch. Pr. (2d Am. ed.) and note, p. 577. « 2 Story's Eq. Jur., ? 1471 ; Mitchell v. Bunch, 2 Paige, 606 ; Johnson v. Clendenin, 5 Gill & John. 463. « 2 Story's Eq. Jur., § 1469. ' 1 Barb. Ch. Pr. 648; 2 Dan. Ch. Pr. 1705. 8 Mattocks V. Tremain, 3 Johns. Ch. 75 ; Beames' Ne Exeat, 82 ; 1 Hoff. Ch. Pr. 90. Special Prayer for, see Story's Eq. fl. ? 43. » Dunham v, Jackson, 1 Paige, 629. 326 ins EXEATS. its being prayed for in the bill, and without an amendment to the prayer. ^ " If the party against whom a final decree is made intends to remove beyond the jurisdiction of the court, before the decree can be enforced by execution, the writ will be granted. ^^ Although the bill must be previously filed, it is not neces- sary that a subpoena should be served upon the party before, or simultaneously with the service of a me exeats ^ But the subpoena should issue first, i* Under the same bill a ne exeat, as well as an injunction, may be granted.'* The application may be made by an ex parte motion, and before the service of a copy of the bill. * * The writ may be allowed by the same officers who are authorized to allow injunctions. The application is founded either upon an affidavit or a petition. The affidavit must be entitled in the suit. It must state positively the existence of a bill, except where it is matter of account, where an affidavit of actual indebtedness with a belief of a balance being due, stating such facts and circum- stances as will justify the Court to conclude that the belief is well founded. 1* The affidavit should also show that the defendant intends going abroad. It should be positive on this point. His dec- larations to that effect will be sufficient.^'' It need not state however, that the defendant is going abroad for the pur- pose of avoiding the payment of the debt.** i» 1 Hoff. Ch. Pr. 91. 1' Dunham v. Jackson, 1 Paige, 629. " Georgia Lumber Co. v. Bissell, 9 Paige, 225. 18 Peltier v. Peltier, Harr. Ch. 19. 14 1 Barb. Ch, Pr. 648. " 2 Dan. Ch. Pr. 1706. ' « Thome v. Halsey, 7 Johns. Ch. 193 ; Mattocks v. Tremain, 3 Id. 75 ; Beanies on Ne Exeat 33, 34; 2 Dan. Ch. Pr. 1707 ; Hoff. Ch Pr. 94 ; See form for Affidavit, 3 Hoff. Ch. Appendix No, 30, and Beames on Ne Exeat, 26-28. ' ' Thome v. Halsey, 7 Johns. Ch. 189; Cowdin v. Cram, 3 Edw. Ch, 231; Beames on Ne Exeat, 33, 34. 1 « 1 Barb. Ch. Pr. 650. NE EXEATS. 327 An affidavit will be dispensed witli if the ' debt appears from a commissioner's report to be due, and that the report has been confirmed. The demand must be certain in its nature, actually payable, and not contiugent.^^ It must also be for some debt or pecuniary demand. But not of a generally unliquidated character, or in "the nature of damages. ^ " Whenever the writ is applied for upon petition, it should contain the same facts as are required in an affidavit for that purpose. If the officer to whom application is made is of opinion that it is a proper case for the writ to issue, he endorses upon the bill, affidavit, or petition, an allowance or certificate, as follows : [AUowance by the Oircuit Judge.'] " Let a writ of ne exeat issue in this cause against the defend- ant, C. D., as prayed for in the within bill, and that the writ be marked in the sum of $1,000, and that an order to that effect be entered." [Gertifieate by an Injunction Master.'] "I certify that I have examined the within affidavit, (or bill or petition,) and am of the opinion that a ne exeat should issue in this cause against the defendant, C. D., and that such writ should be marked in the sum of $1,000." Upon such allowance an order for the writ must be entered by the Eegister before it can be issued. When issued, it should be endorsed by the officer allowing it, in the sum in which the defendant is to be held to bail. The sum should only be sufficient to cover the complainant's debt and inte- rest.2i 1 » Beames on Ne Exeat, 51 ; 2 Story Eq. Jur. \ 1474; 1 Hoff. Ch. Pr. 94. so 2 Story Eq. Jur. § 1474; Beames on Ne Exeat, 27, 36, 37, 53; Seymour V. Hazard, 1 Johns. Ch. 1 ; Brown v. Haff, 5 Paige, 235. '^ McNamara v. Dwyer, 7 Paige, 239. For form of order and writ, see 3 Hoff. Ch. Pr. Appendix, No. 62. 328 NE EXEATS. SECTION III. PEOCEEDINGS. Service of Writ: Bond. — The writ is executed by the sheriff, and a bond is executed by the defendant to him in the penalty marked upon the writ. The condition is that the defendant will not depart from or leave the State without leave of the Court. In the execution of the writ the sheriff acts upon his own responsibility. 2 '^ If the defendant on being arrested, fail to give such bail, he must be kept in custody according to the command of the writ, and the sheriff must so return the fact. SECTION IV. DISCHARGING THE WEIT. "When the defendant has given the prescribed security, or is in the custody of the sheriff, he may move to discharge the writ, giving the usual notice of a special motion. It is a matter of course to discharge the writ upon giving security to abide the decree of the Court. ^* The motion may be made upon a want of equity appearing on the face of the bill ; the insuffloiency of the afldavit or allegation a& to the party's going abroad; upon the defendant's answer, or upon affidavits. 2* " 1 Hoff. Ch. Pr. 167; 1 Barb. Ch. Pr. 654; Brayton v. Smith, 6 Paige, 489. »8 1 Hoff. Ch, Pr. 362; McNamara v. Dwyer, 7 Paige, 239. NE EXEATS. 329 Affidavits may be read both in support of and against tlie motion to discharge the writ.^* The foregoing is a brief outliiie of the general practice on the issuing of writs of me esceat when allowed by law. But in Michigan, under the constitutional provision pro- hibiting imprisonment for debt, it is very doubtful whether there is any authority to issue them, except, perhaps, in some isolated case. Article VI., Sec. 33, of the Constitution, provides, that "'No person shall be imprisoned for debt arising out of, or founded on, a contract, express or implied, except in cases of fraud, or breach of trust, or of moneys collected by public officers, or in any professional employment." It is also provided by statute, that " ISo person shall be arrested or imprisoned on any civil process issuing out of any court of law, or on any exemction issuing out of a court of equity, in any suit or proceeding instituted for the recovery of any money due upon any judgment or decree, founded upon con- tract, or due upon any contract, express or implied, or for the recovery of any damages for the non-performance of any con- tract.2 5 The preceding section does not extend to proceedings as for contempts to enforce civil remedies; nor to actions for fines, penalties or forfeitures, or on promises jto marry, or for moneys collected by any public officer, or for any miscon- duct or neglect in office, or in any professional employment. ^^ It will be observed that the exemption from imprisonment has been extended by the Constitution, so that now there is no power to arrest in some of the cases mentioned in said Section 7175.27 Under the English practice, a writ of ne exeat could issue in fevor of the wife against her husband tu cases of alimony ; '* lHofiF.Ch.Pr.363. 2 5 2Comp.L. 1871, §7174. " 2Comp.L 1871,5 7175. 2' Badger V. Reade, 39 Mich. 773; See Dean v. Smith, 23 Wis. 483; Denton V. Denton, 1 Johns. Ch. 441 ; Parker v. Follensbee, 45 111 473. 42 330 NE EXEATS. but under the foregoing clause of the Constitution, the Supreme Court have held that a defendant in a divorce suit can not be imprisoned, except as for contempt, for failure to comply with an order directing him to pay temporary alimony.^' Under Chanpery Eule 17, it is provided that exceptions to an answer shall not prevent the discharge of a ne eoceat, and in Section 5055 of the Compiled Laws of 1871, that when an appli- cation for a ne exeat is refused, in whole or in part, or granted conditionally, or on terms, no subsequent application for the same purpose, and in relation to the same matter, shall be made to any other Circuit Judge, or other person authorized to grant the same. »» Stellerv. Steller,25 Mich. 159. Note — ^Writs of ne exeat may be granted by any Justice of the Supreme Court of the United States in cases where they might be granted by the Supreme Court; and by any Circuit Justice or Circuit Judge in cases where they might be granted by the Circuit Court of which he is a Judge. But no writ of ne exeat shall be granted unless a suit in equity is commenced, and satisfactory proof is made to the Court or Judge granting the same, that the defendant designs quickly to depart from the United States. — U, S. Rev. Stat. 2 717; Gernonv. BoecaUne, 2 Wash. C, C. 130; Conkling's U. S. Prac. 72. CHAPTBE XXVI. ABATEMENT AND EEYIVOB. Section 1. Abatement. 2. Revivor, SECTION I. ABATEMENT. The abatement of a suit in equity is merely an interrup tion, suspending its progress until new parties are brought before the Court. Abatement is either of the suit or as to the party. A 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 as to a party is when the interest or liability of the party having ceased, it becomes unnecessary to have such party before the Court. 1 In the former case the suit must be revived. But if on the death of a party the cause of action survives to or against some other of the parties, so that a valid decree can be made between them, the suit does not abate as to the survivors, but upon satisfactory suggestion to the Court, the same may proceed in favor of or against the surviving parties.^ The death or marriage of one of the original parties to the suit is the most common cause of the abatement of a suit in equity.* The marriage of a female complainant, even after 1 2 Barb. Ch. Pr. 675; 2 Dan. Ch. Pr. 1506. • 2 Comp. L. 1871, g 5100 ; Leggett v. Dubois, 2 Paige, 213 ; Douglass v. Sherman, lb. 360. • 1 Story's Eq. PI., J 354; Mitf. Eq. PI. 57 ; Cooper Eq. PI. 63, 64. 331 332 ABATEMENT. decree, abates the suit, and it must be revived either iu favor of or against the husband. But the marriage of a female defendant pending the suit, does not abate it ; the proper course being to obtain an order of Court that the suit proceed against her by her new name, in addition to that of her husband.* Such is the general rule, except when, as in the State of Michigan, a married woman may sue and be sued in matters relating to her own property, as if she were sole. But even in such cases where marriage takes place pending a suit, the fact of the marriage should be stated in subsequent proceedings for purposes of identification. When the suit has abated by the death of a party since the hearing, yet the Court may pass judgment.^ Where the abatement is total, it is a general rule that the cause is completely suspended, and cannot be proceeded in until it has been revived. Still the Court has power pending an abatement to make certain necessary orders, e. g. preserving the property in dispute, punishing a party for violating an injunction, etc.* When a suit abates after an appeal, but before the Appel- late Court becomes possessed of the case, it should be revived in the court below before further proceedings.' But if the abatement occurs after the Appellate Court becomes pos- sessed of the cause, said court may, upon petition, order the suit to stand revived in the name of the representatives of the deceased party.' The death of a defendant pending a real action at common law, abates it. His right descends to his heir, against whom a new cause of action arises. Our statute goes no further.* 4 1 Story's Eq. PI., § 354; Cooper's Eq. PI. 64; 1 Barb. Ch. Pr. 676 Campbell v. Bowne, 5 Paige, 34. » Campbell v. Mesier, 4 Jolms. Ch. 342. 8 Wash. Ins. Co. v. Slee, 2 Paige, 368 j Hawley v. Bennett, 4 Id. 163. See Zoellner v. Zoellner, 46 Mich. ' 1 Hoff. Ch. Pr. 364. 8 Rogers v. Patterson, 4 Paige, 409. » People V. St. Clair Circuit Judge, 40 Mich. 351. ABATEMENT. 333 When the cause of action survives, no suit in Chancery in this State will abate by the death of one or more of the complainants or defendants ; but upon satisfactory suggestion to the Court the same may proceed in favor of, or against, the surviving parties. * " The cases intended to be embraced by section 5100 are those where the right of the deceased party vests in some or one of the survivors, so that a perfect decree may be made as to every part of the subject of litigation, without any alter- ation of the proceedings, or bringing any new parties before the Court. Such is the case of two or more defendant trus- tees, executors, or joint tenants, where, on the death of one, the whole right of action survives in favor of, or against, the other.' 1 Upon the death of one or more of the complainants or defendants, if the cause of action does not survive, the suit will abate only as to the person or persons so dying, and the surviving parties may proceed without reviving the suit.^^ SECTION II. EETTVOE. Generally, whenever a suit abates, there must be a revivor in some form. Suits may be revived either by a Bill of Ee- vivor, or by petition under the statute. We shall refer here only to the latter method. If the abatement occur before decree' the defendant must proceed by petition under the statute, and not by a Bill of Eevivor. But after decree, he may adopt either method, i* i» 2 Comp. L. 1871, ? 5100; 1 Hoff. Ch. Pr. 368. 11 Leggett V. Dubois, 2 Paige, 211. 12 2 Comp. L. 1871, ? 5101. 13 1 Hoff. Ch. Pr. 388; 1 Barb. Ch. Pr. 680. 334 BETnVOE. The Compiled Laws authorize the revival of suits in cer- tain cases on a summary application to the Court by petition. It is a substitute for a Bill of Eevivor, and should contain the substance of what was required in such a bill.** The remedy is confined to suits which have abated by the death of the party only.^^ When the subject matter of a suit in equity is assigned by the complainant, the assignee can only revive the same by filing an original bDl in the nature of a bill of revivor and supplement. 1 * A bill of revivor lies to bring in only those who claim by operation of law in consequence of the death of -the original party. Any title not thus derived could only be brought in by an original biU of some kind.*'' The statute was not designed to allow any independent right, not derived by mere operation of law, to be asserted without proper allegations.^ * S^its can only devolve by operation of law after death,upon heirs, or personal representatives, and therefore devisees, lega- tees or persons holding, not as heirs or representatives, must be brought in by bUl. The suggestion of a party's death upon the record is suffi- cient if undisputed, to have all proceedings construed with it without amendment. But the latter proceedings should be properly entitled. *» Proof of a [party's death, and of the appointment of an administrator, should be presented to the Court by affidavit I* Rogers v. Patterson, 4 Paige, 417; Wilkinson & Parish, 3 Id. 653. i» 2 Comp. L. 1871, U 5100, 5114; Douglass v. Sherman, 2 Paige, 358. i« Webster v. Hitchcock, 11 Mich. 56; Wallace v. Dunning, Walk. Ch. 416; Brewer v. Dodge, 28 Mich. 359; Griggs v. D. & M. R. R. Co. 10 Id. 117; Perkins v. Perkins, 16 Id. 167; Sedgwick v. Cleaveland, 7 Paige, 287; Doug- lass V. Sherman, 2 Paige, 358; Story's Eq. PI. 2 349; Mitf. Eq. PI. 65, 67. See U.S. Eq, Rule 57. " Barnett v. Powers, 40 Mich. 319; 2 Dan. Ch. Pr. 1545-7; Story's Eq. PI. §? 339, 342, 354. 377, 378. " 2 Dan. Ch. Pr. g 1546; Barnett v. Powers, 40 Mich.319; Foster v. Fos, ter, 16 Sim. 637. i» People V. Judge of 7th Circuit, 41 Mich. 3. EETTVOE, 335 and placed on file when a suit is revived by an administra- tor.^o No bill of revivor, or supplemental bill in the nature of a bill of revivor, is necessary to revive a suit against the repre- sentatives of a deceased defendant, or other person or persons interested in the subject of such suit; but the Court may, by order, direct the same to stand revived upon the petition of the complainant. ^1 A copy of such order should be served on the representative or other person or persons interested in the suit, 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 pub- lished with the same effect as is now provided in relation to absent, concealed or non-resident defendants in original billf. In the case of personal service of such order, the persons so served are allowed sixty days after such service to appear, answer or disclaim. ^^ If they shall not, in the case of personal service within that time, or in case of publication within the time prescribed by the order of publication, appear and answer, or disclaim, the Court, upon due proof of service of such order, or publication of notice of the same, may cause their appearance to be entered. In such event, the answer of the deceased party will be deemed the answer of such representatives, or other person or persons as aforesaid; and after such order of appearance, the same proceedings may be had, and with the like effect as to absent or non-resident representatives, and other person or persons aforesaid, so brought in on publication of notice, as is now provided as to representatives of a deceased party brought in on personal service of an order of revivor.'" 20 Vickery v. Beir, 16 Mich. 50; Webster v. Bailey, 31 Id. 36; Webster v. Hitchcock, 11 Id. 56. " 2 Comp. L 1871, g 5102; 1 Hoff. Ch. Pr. 366. In the U. S. Circt. Ci. u. Bill of Review is necessary. — E^. Rule 56. " 2 Comp. L. 1871, § 5103. " 1 Comp. L. 1871, \ 5104. 336 EEVITOB. If no answer shall have been filed by the deceased party, the Court may, in its discretion, order the bill to be taken as confessed against such representatives, or compel them to answer, by attachment, or otherwise.''* If the deceased party has answered, and the complainant deem it necessary to obtain a further answer from his repre- sentatives, the petition for revival must state the matters as to which a farther answer is required, and a copy of such peti tion must be annexed to a copy of the order to be served on such representatives.^' In such case, if the representatives do not appear and put in such farther 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 compel such farther answer, by attachment, or otherwise.''^ This would not apply to an infant representative. If he fails to have a guardian ad litem appointed, and put in an answer, the complainant must proceed as in other cases to have a proper guardian appointed. 2' When a complainant dies, and the cause of action does not survive to other parties in the suit, his representatives may, on affidavit of his death, and on motion, in open court, be made complainants in the suit, and be permitted to amend the bill, if necessary.'^* The better practice under said section is to proceed by peti- tion instead of applying by motion. The proper course to be adopted by the heirs, or personal representatives of a deceased complainant, to revive a suit under this section, is for them to apply to the Court upon peti- tion or affidavit, stating the death of the complainant, and «4 2 Comp. L. 1871, ? 5105. »6 2 Comp. L, 1871,? 5106. "' 2 Comp. L. 1871, ? 5107. »» Wilkinson v. Parish, 3 Paige, 655. «« 2 Comp. L. 2871, ? 5108; White v. Buloid, 2Paige, 475. PEVJYOE. 337 showing the character in which they claim the right to revive. If as executors, the probate of the will should be shown, and due notice be given to those who have appeared in the cause. ^' Amendments. — The amendment above referred to relates only to such amendments as the deceased party might have made if living. It does not authorize the insertion of matters which have arisen since the filing of the original bill, nor can the original pleading be altered. ^^ The defendant may be compelled to answer such amended bill, and the cause may proceed to issue and a hearing, as in ordinary cases. ^ ^ When the representatives shall not cause themselves to be made complainants, within eighty days after the death of the deceased complainant, the surviving complainant may proceed to make them defendants in the suit, as in cases where the rep- resentatives of deceased defendants are made parties. ^^ The petition under this section must contain substantially the same facts which are required to be set forth iu a bill of revivor. It should also state the lapse of said eighty days, and that the representatives of the deceased party have not made themselves parties. A copy of the order made should be served upon the parties against whom the revival is sought. If they neglect to appear and answer the petition, or to disclaim, the order that the suit stand revived becomes absolute against them by default in case they are adults. If there be no surviving complainant, or he shall neglect or refuse to proceed against the representatives of the deceased 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 2» Douglass V. Sherman, 2 Paige, 362. s» Wood V. Truax, 39 Mich. 628; 1 Hoff. Ch. Pr. 371, 389; Douglass v. Sherman, 2 Paige, 358, 363. " 2 Comp. L. 1871, § 5109. " 2 Comp. L. 1871, ? 5110; 1 Hoff. Ch. Pr. 369; Hofflnan v. TredweU, 6 Paige, 308. 43 338 EEYIVOE. should not stand revived in their names, or the bill be dis- missed as far as the interests of such representatives are con- cerned.^* If no such cause be then shown, the Court, upon proof of the reasonable service of a copy of the order upon such repre- sentatives, may order the revival of the suit in their names or the dismissal of the biU with costs or otherwise.** Under these sections the representatives of the deceased complainant wiU not be permitted to elect, either to have the suit stand revived in their names, or to have^the bill dismissed as to them. But after a decree, by which the defendant has acquired an interest, he has a right to revive the suit upon a petition and order, if the complainant or his representatives neglect to do so.*' If a defendant dies, and the cause of action does not survive, and the complainant neglects or refuses to procure an order for the revival of the suit, the Court may order it to stand revived, upon the petition of a surviving defendant, agaiast the representatives of the deceased party.** Such surviving defendant may proceed against such repre- sentatives, 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 pro- ceedings shall have been had.*'' In case of the death of a mortgagor, after payment of the first decree, and before proceedings for further decree on an additional instalment, if a bill of revivor is not absolutely essen- tial, averments of equivalent import, by way of statutory peti- tion, are at least requisite.** «8 2 Comp. L. 1871, ? 5111 ; Wilkinson v. Parish, 3 Paige. 653. 84 2 Comp. L. 1871, ? 5112. 8 5 Rogers v. Paterson, 4 Paige, 409. »8 2 Comp. L. 1871, § 5113. " 2 Comp. L. 1871, § 5114. s» Brown v. Thompson, 29 Mich. 72. BEVIVOE. 339 When money is payable by instalments no decree can be lawfully made for any of them until an opportunity has been afforded to contest each default."^ ' The proceeding for a further decree upon an additional instalment, after payment of a prior decree, is essentially a new suit in all except form, and the rights of parties can only be determined on notice, by proofs, as in other cases.*" "Where grantees of partitioners hold separate and undivided interests, and the partition proceedings are not defective as to the parties, they cannot have the proceedings revived for the purpose of barring of their rights, persons who had not been made parties, so as to prevent them from asserting their legal right by bringing ejectment.** [See BiMs of BemvorJ] »s Perkins v. Perkins, 16 Mich. 162. *' Brown v. Thompson, 29 Mich. 72. " Walsh V. Vamey, 38 Mich. 75. CHAPTEB XXTIL DIFFEEENT KINDS OF BILLS. BILL OF REVIVOR. Section 1. When Proper. 2. Who Entitled to File. 3. Against whom to be Filed. 4. Frame of Bill. 5. Defenses. 6. Answer. 7. Replication. 8. Hearing. 9. Effect of Revivor. SECTION I. WHEN PROPER. "We have already stated that the proceedings by petition under the statute were intended to be a substitute for a bill of revivor, properly so called. They are applicable to a great variety of cases. But there are many instances, however, in which a bill, in the nature of a bill of revivor, is the only remedy: For example, where the suit abates by the mar- riage of a female complainant (except when modified by statute), or where supplementary matter must be combined with that appropriate to a case of strict revivor. * 1 2 Barb. Ch. Pr. 34 ; Douglass v. Sherman, 2 Paige, 360. 340 BILL OF EETTVOE. 341 A bill of revivor lies to bring in only those who claim by operation of law, in consequence of the death of the original party. ^ But where representatives become so by devise, grant, or other title which may be contested in the suit, an original bill, in the nature of a bill of revivor and supplement, must be filed, that the question of title may be put in issue and liti- gated.' Our statute allowing a suit to be revived against the repre- sentatives of a deceased party is not meant to allow any inde- pendent right to be asserted without proper allegations, (a) To entitle a party to revive, it is also necessary that there should be a privity between him and the party whose death caused the abatement ; therefore when he assigns his interest in the subject matter of the suit, it must be continued by original bill, in the nature of a bill of revivor and supplement. The effect is the same where the suit abates by the vesting of the party's interest in assignees.* If a defendant die before appearance, the suit cannot be revived against his personal representatives by bill of revivor. In the event of the death of the mortgagor after payment of the first decree, and before proceedings for farther decree on an additional instaUment, a BiU of Revivor, or a petition with equivalent averments is necessary. ^ Whenever there is an original bill, and a cross-biU thereto, if an abatement takes place, there must generally be a bill of revivor in each case unless both bills relate to an account and there is a decree for one.« » Bamett v. Powers, 40 Mich. 319; Story's Eq. PI., ?| 339, 342. » Douglass T. Sherman, supra. {a) Bamett v. Powers, supra. w;cV* ^rf'T-/^-,*^'-' ^^ ^''''^- 16^5 Brewer V. Dodge, 28 Id. 359; Sedg- H. 65%?,T2 98 ' ^'^^' ^^^' ^'""^^ ^' ^^■' ^ ^^^""^ "°''-^' ^^- °° = Brown v. Thompson, 29 Mich. 72. « 2,Barb. Ch. Pr. 38. 342 BILL OP REVIVOE. To authorize a revivor of a suit, it is necessary there should be a matter to be litigated. Thus a bill will not lie upon an abatement after answer to a bill of discovery.(a) SECTION II. WHO ENTITLED TO FILE. When a bill of revivor is filed by any one who was not a party to the original suit, either as the representative of a deceased party, or otherwise, all of the other parties to such original suit having any interest iu the farther proceedings therein should be made parties to such bUl either as complain- ants or defendants.'' Before Decree. — ^When the abatement occurs prior to the decree, the person entitled to revive where the abatement has occurred by the death of a sole complainant, is the representa- tive, real or personal, as the case may be, of such complainant, unless the bill was originally filed by the complainant in a representative capacity, in which case the party to revive will be the party in whom the representation of the deceased per- sons vested.* If the abatement has occurred by reason of the death of one of several complainants, the suit may be revived by the repre- sentative of the deceased complainant, either in conjunction (a) Zoellner v. Zoellner, 46 Mich., [October Term, 1881,] 2 Barb. Ch. Pr. 88 J Story's Eq. PI. i 356. For practice in the U. S. Circt. in case of abatement, by death, or otherwise, see Eq. Rules 56, 66. ' F. L. & T. Co. V. Seymour, 9 Paige, 538 ; 2 Dan. Ch. Pr. 1509, note 3; 2 Barb. Ch. Pr. p. 40-44 ; .Story's Eq. PI. U 354, 364; Mitf. Eq. PI. 69; Cooper's Eq. PI. 63, 64. 8 2 Dan. Ch. Pr. 1538 ; 2 Baib. Ch. Pr. 40. BILL OF EEVIVOE. 343 witli or separately from tlie surviving plaintiffs, and who mu^t be made parties.' When the abatement is occasioned by the marriage of a female complainant, (except when modified by statute,) the suit may be revived by the husband and wife jointly.^ " But where it was caused by the death of a defendant before decree, the only parties necessary to be made defendants to the bill of revivor, are the representatives of the deceased defend- ant, ^i Before decree, neither a defendant nor those claiming under him, can revive a suit by bill of revivor, his interest being yet undetermined by decree. He may, however, proceed by peti- tion, under the statute. ^^ After Decree. — While the general rule forbids a defendant from filing a bill of revivor before decree, yet he may do so if the complainant, or those standing in his right, neglect to do so, for then the rights of the parties are ascertained, and the complainant and defendant are equally entitled to the benefit of the decree, and to prosecute it.'* When the abatement occurs by the death of a defendant after decree, the suit may be revived at the instance of his representatives, provided he has an interest in the further prosecution of the suit.'* » 2 Dan. Ch. Pr. 1538. " Boynton v. Boynton, 21 N. H. 246; 1 Hoff. Ch. Pr. 384. " Story's Eq. PI. p54; 2 Dan. Ch. Pr. 1541. " Cooper's Eq. PI. 68, 69 ; Souillard v. Dias, 9 Paige, 393. " Story's Eq. PI. 372; 2 Dan. Ch. Pr. 1539; Cooper's Eq. PI. 68; Mitf, Eq. PI. 79. '* 2 Dan. Ch. Pr. 1541; Horwood v. Schmedes, 12 Ves. 311. 344 BILL OF EEVrVOE. SECTION III. AGAINST WHOM TO BE FILED. On Death, or Marriage of Chmplamant 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 represen- tatives of the original complainant, or by the husband and wife, all the defendants to the original bill must be parties to it.i^ 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 rep- resentatives of the deceased complainant, or by the husband and wife in conjunction with the other complainants. The foregoing general rule is not applicable in States where married women may sue or be sued in matters relating to their own property. If the suit is continued, either by the surviving complain- ants alone, or by the representatives of the deceased complain- ant alone, such representatives in the one case, or the surviv- ing complaiaants in the other, must be made defendants to the bill of revivor in conjunction with the original defendants.-* 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.' '' On Death of Defendant. — Where the abatement is caused by the death of one of several defendants, and the suit is revived by the complainant in the original suit it is only necessary in 16 2 Dan. Ch. Pr, Chap. 33, ? 1, p. 1540; 2 Barb. Ch. Pr. 41. >« 2 Dan. Ch. Pr. 1541; Oxburgh v. Fingham, 1 Vern. 308.| 1' Fallowes v. Williamson, 11 Ves. 306. BILL OF EBVIVOE. 345 a simple bill of revivor to bring tlie representatives of the decedent before the Court, without making the surviving defendants parties.* * And the same principle is applicable to a supplemental bill in the nature of a bill of revivor to revive or continue the suit against the devisee or assignee ol one of the original parties.' ' Where defendant in a judgment creditor's bill dies before any lien attaches, the complainant loses his right to prose- cute, (a) After Decree. — ^Where a bill of revivor is filed after decree, aU persons interested in carrying the decree into effect, must be made parties to the bill of revivor. It will, however,-, not be liable to demurrer for want of a party who was not before the Court at the time of the abatement, although the suit may have been imperfect for want of such party; for it is not the oflce of a bill of revivor to correct such imperfection.^" SECTION IV. FEAME OF BILL, Must Pursue the Original BUI. — A bill of revivor must state the original bill, what its prayer or object was, and the several proceedings thereon, and the abatement. It should also show the. title of the complainant to revive the suit ; and to state so much new matter, and no more, as is requisite to show how he becomes entitled to revive and to charge that the cause ought to be revived, and to stand in the same condition with respect to the parties to the original suit as it was at the time when the abatement happened, ^i " 2 Barb. Ch. Pr. 41,44; F. L. & T. v. Seymour, 9 Paige, 538. • ' F. L. & K Co. V. Seymour, supra. (a) Jones V. Smith, Walk. Ch. 115. »" Metcalfe v. Metcalfe, 1 Keen, 74. 81 Story's Eq. PI. ? 374- Mtf. Eq. PI. 76; Cooper's Eq. 70. 44 346 BILL OS" fiEVlVOE. Such is the general practice. But Chancery Eule 44 pro- vides that it shall be unnecessary in any bill of revivor or supplemental bill to set forth any of the statements in the original suit unless the special circumstances require if^ The bill should pray that the suit may be revived accord- ingly, or that the defendant show good cause to the contrary. If it be necessary to pray that the defendant answer the bill of revivor, as often happens, the prayer may vary accord- ing to the special circumstances.^* Upon a bill of revivor the sole questions before the Court are the competency of the parties to revive, or the correctness of the frame of the bill. 2* If a defendant to an original bill dies before putting in an answer, or after ari amendment of the bill, to which no answer has been given, the bill of revivor, though requiring in itself no answer, must pray that the person against whom it seeks to revive the suit may answer the original bill.^^ If the bill seeks merely to revive the suit, it prays simply for a subpoena to revive. If it requires an answer it should pray a subpoena to revive and answer. The filing of the bill, service of subpoena, and appearance, and order of revivor, are substantially the same as in original bills. SECTION V. DEFENSES. If the defendant wishes to resist the objects of a bill of revivor, he may demur, plead or answer, as the case may require. Mr. Story says : "That if the bill does not show a suf- " The practice in the U. S. Circuit is the same. See Eq. Rule 58 . " Story's Eq. PI., ? 374. 2* Bettes V. Dana, 2 Sum. 388. " Story's Eq. PI., ? 375; Mitf. Eq. PI. 76-7; Cooper's Eq. PI. 70-71. BILL OP BEVTVOE. 347 ficient ground for reviTing the suit, or any part of it, tlie defendant may demur for want of privity, want of interest, or for some imperfection in the fl?ame of the bUl, and that a demurrer is the best practice to avoid a waiver." "s p^, — ^If a bill of revivor is brought without suflcient cause to revive, and the 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 ;2 ' or if the complainant is not entitled to revive the suit at all, though a title is stated in the bill, so that the defendant cannot demur, the objection to the complainant's title may be taken by way of plea. ^ * The want of parties may be pleaded to a bill of revivor. ^^ SECTION VI. AJSSWER. When a mere bill of revivor is filed, in which the question between the parties is simply as to the right to revive, an answer, unless required by the bill, is unnecessary.*" When an answer is required, it must be confined to such matters as are called for by the bill, or which 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 set forth in his answer matter which might have been a good defense to that bill, but which was not rele- »« Story's Eq. PI., ? 617, note 3 ; Cooper's Eq. PI. 210 ; Mitf. Eq. PU 202, 289, 290 ; 2 Barb. Ch. Pr. 51, 52; 2 Smith Ch. Pr. Chap, x, p. 523. " Pendleton v. Fay, 3 Paige, 204; Mitf. Eq. PL 289. »8 Mitf. Eq. PI. 289. " Coop. Eq. PI. 303. "> 2 Barb. Ch. Pr. 54. 348 BILL OF EEVIVOE. vant to the question of revivor, tlie answer was to that extent held impertinent.*' An answer to a bill of revivor is liable to exception for impertinence and insufficiency, the same as in original bills. The defendant may, by his answer, consent that the suit be revived, in which case the complainant may enter an order of course for the revival of the suit.*^ The answer of a defendant to a bill of revivor can not dis-. pute the merits of the decree.** SECTION VII. EEPLICATION. If the answer does not admit the cgmplainant's title to revive, or state any circumstances which the complainant is desirous of controverting, it must, if the abatement has occurred after decree, or after issue joined in the original cause, be replied to, after which the proceedings upon it will be the same as upon an original bill. If the bill of revivor is filed before the decree, or before issue joined in the original cause, a separate replication will be unnecessary.^* »' Nanney v. Totty, 11 Price, 117. 8* Seaton on Decrees, 384. »8 Arnold v. Styles, 2 Blackf. 391. " 2 Barb. Ch. Pr. 56. BILL OP EEVIVOB. 349 SECTION VIII. * HEAiJrN&. The, necessity of bringing a bill of revivor to a hearing, depends upon whether the object of such bill has been accom- plished by the order to revive. If it merely prays that the suit may be revived, a hearing will be tmnecessary, unless an answer has been put ta contesting the complainant's right to revive, 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 complainants and co-defendants.*^ In the case of an answer contesting the right to revive, the cause must proceed upon the bill of revivor in the same man- ner as upon other bills, and the matters of fact must be ascer- tained, and those of law determined as usual. When it is ripe for hearing, it is brought on in the usual mode, notwithstand- ing an order to revive has been obtained, and 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 stand revived, and be carried on and prosecuted between the parties to such suit in like manner as between the parties to the orig- inal suit.'^ «5 2 Dan. Ch. Pr. 1509, 1510 ; Pruen v. Lunn, 5 Russ. 3; Day v. Potter, 9 Paige, 645. " 1 Hoff. Ch. Pr. 383; Day v. Potter, supra; Seaton on Decrees, 385; Harris v. Pollard, 3 P. Will. 348. 350 BLLL OF EEVIVOEi Whenever the bill contains supplemental matter as well as matter of revivor, a hearing must be had; and in such a case the bill of revivor must be set down for hearing, as well against the party to the revivor, as against the party to the supple- mental matter. Where the decree in the original suit contains a specific direction, (as that the defendant shall pay a certain sum of money,) such direction cannot be carried into execution by the mere order to revive; but a decree must be made in the revived suit for that purpose.^ ^ If the bill of revivor is filed before the decree, it may, if the original cause has not been heard, be heard together with it ; but if the original cause has been already 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 is made.'' 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, upon farther directions.*' SECTION IX. EFFECT OF EEVTVOE. A bill of revivor by a defendant 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 operations, rather than to litigate the claims made by the »' Harries v. Johnson, 3 Young and Col. 583. " 1 Smith's Pr. 523; 2 Dan. Ch. Pr. 1535-6. »» 2 Dan. Ch. Pr. 1536. BILL OF EEVIVOE. 351 several parties in tlie original pleadings except so fiar as they remain undecided.*" 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 complainant may take the same proceedings in the cause that the original complainant might have taken. Thus the complainant in a revived suit may amend the origi- nal suit in the same manner that the original complainant might have done ; and may issue an attachment against the defendant for not answering the amended bill.* ^ So also the new complainant may prosecute process of con- tempt 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.** But the case is otherwise where the abatement is occasioned by the death of a defendant. In such a case the process being personal cannot be revived. In general, however, where an abatement is occasioned by the death of a defendant, the order to revive against his representatives will place the suit as fiiUy in the same position with regard to such representatives as can be done with reference to the change of the individuals before the Court.** 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,* ' unless there be a decree for an account.*^ " Mitf. Eq. PI. 79; Story's Eq. PI. J 376; Cooper's Eq. PI. 71. *i 2 Dan. Ch. Pr. 1545 ; Gregson v. Oswald, 1 Cox, 343. «» Mitf. Eq. PI. 78; Philips v. Derbie, 1 Dick. 98. *» 2 Dan. Ch. Pr. 1545; Hyde v. Forster, 1 Dick. 132. " 2 Dan. Ch. Pr. 1545. " Welf. Eq. PI. 220; Story's Eq.Pl. ? 363. ««_ Cooper's Eq. PI. 64. CHAPTER XXVIII. BILLS IN THE NATURE OF BILLS OF EEVIVOB. Section 1. Nature and Uses of. 2. Parties to, and Frame of. 3. Defenses. SECTION I. NATTIEE AND USES bp. As we have already stated, a bill of revivor lies only in cases where a suit has abated through death of a party, and it becomes necessary to bring the proper representative of the deceased party before the Court ; or, where by reason of the marriage of a female complainant, her husband becomes a necessary party.* In each of these cases the sole questions before the Court are, the competency of the party to revive, and the correctness of the frame of the bOl. If satisfactorily answered, the revivor is of course.* But there are many cases where other facts, besides the mere question of the character of the new party, may be brought into litigation. To such cases a mere bill of revivor does not apply; but an original bill in the nature of a bill of revivor, is the appropriate process to bring the facts before » 2 Dan. Ch. Pr. 1507. « 2 Dan. Ch. Pr. 1509, note 2; Bettes v. Dana, 2 Sumner, 383; Story's Eq. PI. g 377; Cooper's Eq, PI. 64. 352 BILI* IN NATUEE OF EEVIVOB. 353 the Court, and to enable the new party to have the benefit of the former proceedings.* The bill is said to be original for want of that privity of title between the party to the former bill, and the party to the latter, though claiming the same interest which would have permitted the continuance of the suit by a bill of revivor.* The distinction between bills of revivor and bills in the nature of bills of revivor, is, that the former, in case of death, are founded upon privity of blood or representation by opera- tion of law; the latter, in privity of estate or title by the act of the party. In tbe former case nothing is in issue except whether the party be heir or personal representative ; in the latter the nature and operation of the act by which the privity of estate or title is created, is open to controversy* Upon an original bill in the nature of a bill of revivor, the ' benefit of the former proceedings is obtained.. But upon an original bill in the nature of a supplemental bill, a new defense may be made. The pleadings and depositions how- ever, cannot be used in the same manner as if filed or taken in the same cause, and the decree, if any has been obtained, is otherwise of no advantage than as it may be an inducement to the Court to make a simUar decree.^ s Story's Eq. PI. ? 377; Mitf. Eq. PI. 97-71; Douglass v. Sherman, 2 Paige, 358; Wilkinson v Parish, 3 Id. 653. * Mitf. Eq. PI. 71, 97, 98. ' = Story's Eq. PI, ? 379; Mitf. Eq, PI. 71, 97,'; Cooper's Eq. PI. 63, 69, 77; Slack V. Walcott, 3 Mason, 508. « Story's Eq. PI. ? 384 ; Mitf. Eq. PI. 72; Lloyd v. Johnes, 9 Ves. 37; Atty. Gen'l. ■/. Foster, 2 Hare, 81, 93, 94. 354 BILL IN NATURE OF EEVIVOE. SECTION II. PARTIES TO BILLS, AND FRAME OF. Where a bill of this nature is filed by any one who was not a party to the original suit, either as the representative of a deceased party, or otherwise, all of the other parties to the original suit who have any interest therein, should be made parties to such bill.' Such a bill can only be brought by a person claiming privity with the complainant in the original bill.* Frame. — Such a bill should state the original biU, the pro- ceedings upon it, the abatement and the manner in which the interest of the party deceased has been transmitted. It must also charge the validity of the transmission, and state the rights which have accrued by it.' It should also pray that the suit may be revived, and that the complainant may have the benefit of the former proceedings therein.* * SECTION III. DEFENSES TO. The practice upon bills of this nature is the same as that upon original bills, and they must be brought on for hearing in the same manner as in those bills. ^ * ' 2 Dan. Ch. Pr. 1509, note 3; Fallowes v. Williamson, U Ves. 306 ; Park- er V. Parker, 9 Beavan, 144; Jones v. Powell, 11 Id. 398; F. L. & T. Co. v. Seymour, 9 Paige, 538. « Story's Eq. PI. § 385; Coop. Eq. PI. 43; Slack v. Walcott, 3 Mason, 508. « Story's Eq. PI., ? 386; Mitf. Eq. PI 97; Phelps v. Sproule, 4 Sim. 318. l» Story's Eq. PI. § 386. 11 2 Dan. Ch. Pr. 1547 ; 2 Barb. Ch. Pr. 89. CHAPTEE XXIX. BILLS LN THE NATUEE OF SUPPLEMENTAL BILLS. Section 1. Original Bills in the Nature of Supplemental Bills. 2. Bills to Carry Decrees into Execution. SECTION I. OEIGINAL BILLS IN NATUEE OF SUPPLEMENTAL BILLS. This division is founded rather upon formal technical prin- ciples than upon any substantial difference from a supple- mental bill properly so-called. In the books they are usually confounded together.* The most prominent distinction between them, however, seems to be that a supplemental bill is properly applicable to those cases only where the same parties or the same inter- ests remain before the Court ; whereas an original bill, in the nature of a supplemental bill, is properly applicable, when new parties, with new interests, arising from events since the institution of the suit are brought before the Court. ^ F0rm of. — ^A bill for this purpose must state the original bill, the proceedings upon It, the event which has determined the interest of the party, and the manner in which the prop- erty has vested in the person who has become entitled. It must then show the ground upon which the Court ought to 1 Story's Eq. PI., ? 345; Cooper Eq. PI. 62 ; Mitf. Eq. PI. by Jer. 61, 76; Randall v. Mumford, 18 Ves. 424. ' Story's Eq. PI., ?? 339, 345; Cooper Eq. PI. 75, 76. 355 356 BILL m NATUEE OF SUPPLEMENTAL BILL. grant the benefit of the former suit, to or against the person who has become so entitled, and it must pray the decree of the Court adapted to the case of the complainant in the new bill.* This bill, although partaking of the nature of a supple- mental bill, is not an addition to the original bill, but another original bill, which in its consequences may draw to itseK the advantage of the proceedings on the former bill.* The proceedings upon a bill of this nature are the same as those upon original bills in general. ^ SECTION II. BILLS TO CAREY DECREES INTO EXECUTION. , A bill of this description is necessary where a decree has been pronounced, but owing to the neglect of parties it becomes impossible to carry it into execution without the further decree of the Court. This happens generally where parties having neglected to enforce a decree, their rights under it have become so embar- rassed by a variety of subsequent events that it is necessary to obtain a decree of the Court to settle and ascertain them.^ The Court in these cases in general only enforces and does not vary the decree. But upon special circumstances it has sometimes reconsidered the original directions, and varied them in case of mistake ; and sometimes has refused to enforce the decree.^ ?430. Story's Eq. PI., § 353 ; Mitf, Eq. PI. by Jer. 99. Story's Eq. PI., ? 353 ; Mitf. Eq. PI. 98, ''igers V. Lord Audley, 9 Id. 75. 5 2 Dan. Ch. Pr. 1546; 2 Barb. Ch. Pr. 56. Story's Eq. H., ? 429 ; Mitf. Eq. PI. 95; 'i M. R. R. Co. 10 Mich. 117 ; Terry v. fc Mitf. Eq. PI, 95, 96, and cases cited ; Cooper Eq. PI. 99 ; Story's Eq. PL 4 Story's Eq. PI., ? 353; Mitf. Eq. Pi. 98, 99; Phelps v. Sproule, 4 Sim, 318; Vigers v. Lord Audley, 9 Id. 75. 2 Dan. Ch. Pr. 1546; 2 Barb. C « Story's Eq. H., ? 429 ; Mitf. Eq. PI. 95; Cooper Eq PI 98, 99; Griggs D. & M. R. R. Co. 10 Mich. 117 ; Terry v. McClintock, 41 Mich. 492. BILL IN NATUEE OF SUPPLEMENTAL BILL. 357 It is, however, only the defendant in the new suit who can call the decree in question ; the complainant never can.* He must, if satisfied with the decree, impeach it, either by bill of review or some proceeding of that nature.^ A bill for this purpose is generally partly an original bill and partly a biU in the nature of an original bill, though not strictly original ; and sometimes it is likewise a bill of revi- vor or a supplemental biU.i" 8 Robinson v. Robinson, 2 Ves. Sen. 225, 232. » Shepherd v. Titley, 2 Atk. 348. " Story's Eq. PI., g 432; Mitf. Eq. PI. 97. CHAPTEE XXX, BELLS OF EEVIVOE AND SUPPLEMENT. A bill of this nature is a mere compound of a supplemental bill and a bill of revivor, and in its separate parts must be framed and proceeded upon in the same manner. It not only continues a suit which has abated, but supplies defects in the original bill, arising from subsequent events. ^ These bills are liable to the same description of defense as the bills if separate would be subject to.^ The case should be set down for hearing against all the par- ties, although the bill is only a bill of revivor against one. 1 Story's Eq. PI., ? 387 ; Cooper Eq. PI. 84 ; Mitf. Eq. PI. 80 ; Pendleton V. Fay, 3 Paige, 204 ; Westcott v. Cady, 5 Johns. Ch. 342 ; Harrington v. Becker, 2 Barb. Ch. 76 ; Eastman v. Batchelder, 36 N. H. 141 ; Merrewether v. Hellish, 13 Ves. 161, 163, 435 ; Manchester v. Matthewson, 2 R. I. 416. s Mitf. Eq. PI. 70 ; Cooper Eq. PI. 84 ; 2 Dan. Ch. Pr. 1546 ; 2 Barb. Ch. Pr. 90 ; Pendleton v. Fay, 3 Paige, 204. 358 CHAPTEE XXXI. SUPPLEMENTAL BILL. Section 1. Nature of, and when Proper. 2. Parties to. 3. Form of. 4. Application for. Lrave to File. 5. Process. 6. Defenses. 7. Answer to. 8. Replication and Evidence. 9. Hearing. SECTION I. NATXJEE 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 under it, or where by an event subsequent to the commencement of the suit, a new interest in the matter in litigation is claimed by an existing party to the suit, or a new party claims, but not by mere oper- ation of law, the interest which was claimed by an existing party. 1 A bill of this nature may be filed to supply defects in the frame of the original bill either before or after decree, or to put new matter in issue.* 1 Graves v. Niles, Harr. Ch. 332; Baraett v. Powers, 40 Mich. 317; 1 Hoff. Ch. Pr. 393; 2 Dan. Ch. Pr. 1673; Story's Eq. PI. §? 332-3-4; Barton's suit in Eq.l28'; Jones v. Jones, 3 Atk. 110; Stafford v. Howlett, 1 Paige, 201; Crow- , foot V. Mander, 9 Sim. 396; Hardy v. Hull, 14 Id. 20; Foster v. Foster, 16 Id. 637. And see Hughes Eq. Draftsman, p. 401, note a. » Mitf. Eq. PI. 61, 62. 359 360 SUtPI.EMBNTAL BILL. Wlien tlie imperfection in a suit arises from a defect in the original bill, or in some of the proceedings under it, and not from any event subsequent to the suit, it may be added to by supplemental bill.* Whenever the defect can be supplied by an amendment, the Court wiU not permit a supplemental bill to be filed.* Facts of which complainant has learned since the filing of an original bill, but which occurred j^nor thereto, are not mat- ter for a supplemental bill, but for amendment. = Nothing can be inserted in an original bill by way of amendment, which has arisen subsequent to the commence- ment of the suit. 8 Where nothing has occurred to change the rights of the parties subsequent to the commencement of the suit, the com- plainant cannot, after the cause is at issue, file a supplemental bill for the meres purpose of putting in issue new matters which might have been introduced into the original bill by way of amendment.'' Matters which have pccurred since the filing of the original' bill, and which are material to perfect the complainant's case, may be introduced by supplemental bill.* A supplemental bill may also be proper to bring before the Court parties who were omitted in the original bill.* A supplemental bill may also be filed as well after as before a decree, and the bill if after a decree, may be either in aid of the decree, or that proper directions may be gis^en upon some matter omitted in the original bill, or to bring parties before the Court. 10 » Mitf. Eq. PI. 61; Story's Eq. PI. § 333. * Story's Eq. PI. ? 333, 336 ; Coqpef Eq. PI. 74; Hoff. Ch. Pr. 393. B Wood V. Truax, 39 Mich. 628. 8 Story's Eq. PI. § 336; Mitf. Eq. PI. 61, note f; Candlerv. Pettit, 1 Paige, 168 ; Candler v. Hewlett, 200 ; 1 Hoff. Ch. Fr. 396. ' Dias V. Merle, 4 Paige, 259. 8 Story's Eq. PI. §2336-7; Milner v. Harewood, 17Ves. 145, 146. 9 Story's Eq. PI. § 334; Mitf. Eq. PI. 61-2i Jones v. Jones, 3 Atk. 110. . i» Story's Eq. PI. 338; Mitf. Eq. pi. 62. SUPPLEMENTAL BILL. 361 It is a general rule that ■whenever an event happens subse- quent to the filing of the original bill, which, without abating the suit, transfers the interests of a party to it, or any party thereof to another, so as to give a new interest to the person to whom it is transferred, the defect must be supplied by sup- plemental bill. 11 SECTION II. PAETIES. Where the bill is filed for any new matter which has arisen since the filing of the original bill, the defendants to the origi- nal bill should be made parties to the supplemental biU.^^ And such bill may be filed as well before as after decree. ^^ But if the object is to bring in merely formal parties, it is unnecessary. 1* Where, however, a person has acquired the interests of a party to a suit, and files a supplemental bill him- self, he must make all of the parties to the original bill, whether .complainants or defendants, parties to his supplemental bill.^ ^ To entitle a complainant to file a supplemental bin, and thereby to obtain the benefit of the former proceedings, it must be in respect of the same title in the same person as stated in the original bill. He cannot file such a bOl to have " Mitf. Eq. PI. 63; Griggs v. D. & M. R. R. Co., 10 Mich. 117; Webster V. Hitchcock, 11 Id. 56; Cooper v. Bigly, 13 Id. 463; Widner v. Olmstead, 14 Id. 124; Perkins v Perkins, 16 Id. 162; Brewer v. Dodge, 28 Id. 359; Terry v. McClintock, 41 Id. 492; King v. Donnelly, 5 Paige, 46. i» Jones V. Jones, 3 Atk. 110. i« 2 Dan. Ch. Pr. 1533 ; N. A. Coal Co. v. Dyett, 2 Edw. Ch. 115. 14 Story's Eq. PI., ? 343; 12 Eng. L. & Eq. 184; McGown v. Yerks, 6 Johns. Gh.450; Brown v. Martin, 3 Atk. 218; 2 Dan. Ch. Pr. 1535. '= 2 Baib. Ch. Pr. 69 ; 2 Dan. Ch. Pr. 1509, note 3. 46 362 SUPPLEMENTAL BILL. the benefit of the former proceedings, if he claims by a differ- ent title, i^ A new party, representing the interests 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 same condition as the former party, is bound by his acts, and may be subject to all the costs of the proceedings from the beginning of the suit.^ ^ SECTION III. FOEM OF. A supplemental bill should state the original bUl and the proceedings thereon.^* And if it is occasioned by an event subsequent to the original bill, it must state that event, and the consequent alteration with respect to parties ; and in gen- eral, the bill must pray that all the defendants may appear and answer to the charges it contains, i' This is the general rule, but Chancery Eule 44 provides that it shall not be necessary to set forth any of the statements in the original bill, unless the special circumstances of the case require it. Prayer. — ^A supplemental bill generally calls upon the defendant 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 i« Tonkin v. Lethbridge, Coop. Eq. Rep. 33. 1' Mitf. PI. 69 ; 2 Dan. Ch. Pr. 1534. 19 Story's Eq. PI., g 343; Mitf. Eq. PI. 76; Cooper Eq. PI. 83. i» Story's Eq. PI., g 343.; Mitf. Eq. PI. 76. The practice is the same in the U. S. Circuit Court. See Eq. Rule 58. STTPPLEMENTAL BILL. 363 matters in the original bill, it may pray that the defendant may answer the original bill. 2" And in such case the defend- ant will be bound to answer the original as well as the supple- mental bill." SECTION IV. APPLICATION FOE LEAVE TO FILE. Leave to file a supplemental bill must be obtained from the Court. It will be granted on an ex parte application by motion or petition. If there is probable cause for filing it, leave will be granted of course. The Court only examines the question so far as to ascertain that the privilege is not abused for the purpose of delay and vexation to the defendant. In a case of doubt the Court will direct notice to be given to the defend- ant;^^ and also where a preliminary injunction or some special relief is asked prior to the time of appearance.^' '" See Vigers v. Lord Audley, 9 Sim. 72, 409 ; Am. L. Ins. Co., 3 Barb. Ch. Rep. 610. »•■ 2Dan.Ch. Pr. 1534. 2 2 Graves v. Niles, Harr. Ch. 332; 1 Hoff. Ch. Pr. 403; Eager v Price, 2 Paige, 337 ; Lawrence v. Bolton, 3 Id. 294. " Lawrence v. Bolton, supra. In the U. S. Circuit Court leave to file a supplemental bill, or a hill in the nature of a supplemental bill, can be granted only upon proper cause shown and notice See U. S. Eq. Rules?. 364 SUPPLEMENTAL BILL. SECTION V. PEOOESS. The subpoena to appear and answer a supplemental bill is in the same form as a subpoena ,to answer an original bill, except that it specifies the nature of the bill which has been filed. It is not necessary that process should issue against a party already in court. • But if new parties are made defendants to the bill, process must issue as in other cases. 2* SECTION VI, DEFENSES. The defenses to a supplemental bill are the same substan- tially as in other cases. Demurrer. — If the bill is filed upon matter arising subsequent to the time of filing the original bill, against a person who claims no interest out of the matters in litigation by the for- mer bill, the defendant may demur; especially if the bill prays that he may answer the matters charged in the former bill. 2 « 24 1 Hoff. Ch. Pr. 404; 2 Barb. Ch. Pr. 76. S6 Baldwin v. Mackown, 3 Atk. 817; 2 Barb. Ch. Pr. 76; Hess v. Final, 32 Mich. 515. SUPPLEMENTAL BILL. 365 A defendant may also demur if the same complainant files a supplemental bill claiming tlie same matter as in Ms original bUl, but upon a title totally distinct.^* A motion to take the supplemental bill off the file for irregularity on the ground that it does not state supplemental matter, will not lie. The proper course ia such a case is to demur. 2' 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 supplemental bill (so as to enable the defendant to demur), it may be so pleaded. 2 8 So if a supplemental bill is filed without any sufficient grounds, the defendant may make the objection by plea.^' Practice as to Demurrers and Pleas. — Demurrers and pleas to supplemental bills are subject to the same rules, both with respect to their form and substance, and to the practice arising upon them as demurrers and pleas to original bills.'*" SECTION VII. ANSWEE TO. If a defendant to a supplemental bill neither demurs nor pleads to it, he must put in his answer, as in the case of an original bill. K, however, there is any matter in the supple- st Cooper's Eq. PI. 83. 2' Bowyerv. Bright, 13 Price, 316. 2 8 Mitf. Eq. PI. 290; Stafford v Hewlett, 1 Paige, 200; Fulton Bank. v. N. Y. & Sharon Canal Co., 4 Id. 127. *» Lawrence v. Bolton, 3 Paige, 294. '0 2 Dan; Ch. Pr. 1535; Story's Eq. PI. §§ 338, a, 661; 1 Drew, 68; Fulton Bank v. N. Y. & S. Canal Co., 4 Paige, 127. 366 STJPPLEMENTAI. BILL. mental bill which is properly the subject of demurrer or plea, he may, by his answer, claim the same benefit of it as he would have been entitled to had he demurred or pleaded, ^i Where a defendant to a supplemental biU is called upon to answer the original bill at the same time that he answers the suppleraental matter, the usual course is to include the answer to the original bill and supplemental bill in the same answer.'^ It is not, however, absolutely irregular to separate them.^* The form of an answer to a supplemental bill and the man- ner of putting it in, filing it, etc., are the same as in the case of an answer to an original bill, and are subject to the same con- tingencies.^* After the answer has been put in, and the proceedings on the supplemental bill have arrived at the same point at which the original bill stood, they then proceed ^anjjossw together.'^ SECTION VIII. EEPLICATION A]SJ) EVIDENCE. B&plication. — ^A replication may be filed by the complainant in a supplemental suit to the defendant's answer, if one is put in, in the same manner as in the case of an original suit. But a separate replication in a supplemental suit is only necessary where there has been already a replication in the original suit. Where there has been no replication in the original suit, a »i 2 Dan Ch. Pr. 1535. » ' See Vigers v. Lord Audley, 9 Sim. 408. «= 5 Sim. 8. »* 3Dan.Ch. Pr. 2112. 8 6 Lube's Eq. PI. 138. SUPPLiaiENTAI, BIIX. 367 general replication wiU apply to the whole record, and not merely to the original bUl.* ^ Emdence. — K the new matter in the supplemental bill is not admitted by the defendant's answer, it must be proved ; other- wise the supplemental bill will be dismissed with costs.^' For this purpose witnesses may be examined as to the new matter contained in the supplemental suit. A supplemental suit is merely a continuation of the origi- nal suit, and whatever evidence was properly taken in the original suit may be made use of in both suits, even though not entitled in the supplemental suit. In case of alienation pendente lite, the alienee is bound by the proceedings in the suit after alienation, and before the alienee became a party to it. And depositions of a witness taken after the alienation and before the alienee became a party, may be used by the other parties against the alienee, as they might have been used against the party under whom he claims.** SECTION IX. HEARING. If there 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 supplemen- tal bill is merely for discovery), and one decree will be made in both.* ' But if a decree has been obtained before the event 8« Cattdn V. Earl of Carlisle, 5 Mad. 427. " 2 Barb. Ch. Pr. 79. '8 Mitf. Eq. PI. 74; See Garth v. Ward 2 Atk. 174. »9 Mitf. Eq. PI. 64, 75; Beaton's Form of Decrees, 385. 368 SUPPLEMENTAL BILL. by which the supplemental bill was rendered necessary, though it be only a decree nisi,*" there must be a decree on the sup- plemental bill, and for which purpose the supplemental cause must be brought to a hearing alone ; or it may be heard with the original cause, for further directions. *i Entitling Orders^ — When the two suits proceed as one cause, orders and papers are entitled, " A. B., complainant, C. D. and E. P., defendants, — by original and supplemental bills. *2 Dismissing Bill. — If the supplemental bill is unnecessarily or improperly filed, it will be dismissed at the hearing although the complainant obtains a decree on the original bill.*^ So, if no proof is made of the supplemental matter, the bill will be dismissed at the hearing.** Decree. — Where the original and supplemental bills are heard together, the decree is, in form, "that it is in the origi- nal cause ordered, etc.; and on the supplemental bill it is ordered," etc.*^ i» Mitf. Eq. PI. 64; Adams v. Dowding, 2 Mad. 61. *i Seaton's Form of Decrees, ;386 . *2 John V.Brown, Seaton on Decrees, 385. *8 Eager v. Price, 2 Paige, 339. 4 4 Bagnall v. Bagnall, 2 Eq. Abr. 173 ; 6 Bro. P. C. 86. *5 Attorney Gen. v. Hurst, Seaton on Decrees, 131. CHAPTEE XXXII. BILLS OF REVIEW. Section 1. Nature of and when Proper. 2. Parties. 3. Leave to File. .4. Within what Time to be Brought; 6. Frame of. 6. Defense. SECTION I. NATURE OF, AND "WHEN PEOPEE. Nature of. — A bill of review is in the nature of a -writ of error, and its object is to procure an examination and altera- tion or reversal of a decree made upon a former bill, and which has been signed and enrolled.^ [For rectifying decrees before enrollment, see Ante, p. 193.] The only distinction between this class of bills and that of re-hearing is, that the latter precedes, and the former follows enrollment.^ Bills of review may be hTought— first, for error of law ; sec- ond, upon discovery of new matter.* 1. Error of Law. — The error must appear on the decree and pleadings, for the evidence cannot be examined to ascertain 1 Story's Eq. PI., § 403 ; Mitf. Eq. PI. 83 ; Cooper Eq. PI. 88 ; 2 Dan. Ch. Pr. 1575 ; Maynard v. Pereault, 30 Mich. 160; Dexter v. Arnold, 5 Mason 303; Whiting V. U. S. Bank, 13 Pet. 6, 13; Elliott v. Balcom, 11 Gray, (Mass.) 286. ' Mickle V. Maxfield, 42 Mich. 305. « Story's Eq. PI. § 404; Cooper Eq. PI. 89; Davis v. Bluck, 6 Beav.393; Massie v. Graham, 3 McLean 41. 4? 369 370 BILL OF EEVIEW. whether the Court misunderstand the facts. That is the prov- ince of the Court upon an appeal. The decree is to be treated as including the bill, answer and other proceedings, excepting the evidence, and all these may be looked into to find errors apparent on the face of the decree; but substantial errors only will be noticed.* The cases justifying such bills are when the decree com- plained of is without jurisdiction, is contrary to some statu- tory enactment, or some principle or rule of law recognized or settled by decision, or is at variance with the practice of the Court.' When a decree has been affirmed upon appeal to a court of final resort, a bill of review for errors apparent upon the face of the decree will not lie, for the highest Appellate Court has pronounced in effect that it is not erroneous.* 2. Discovery of Wew Matter. — A bill of review also lies for newly discovered evidence relevant and material to the issue when such evidence was not known, and could not, with rea- sonable diligence have been known, until after the time when it could have been i^sed.' Matter which has been discovered subsequent to the mak- ing of a decree, although not capable of being used as evidence of anything which was previously in issue in the cause, but constituting an entirely new issue, may be the subject of a biU of review.* " Story's Eq. PI., gg 407, 411 ; 2 Hoff. Ch. Pr. 3, 4 ; Webb v. Pell, 3 Paige, 368 ; Evans v. Clement, 14 111. 206; Whiting v. U. S, Bank, 13 Pet. 6, 13, 14 ! Saum v. Stingley, 3 Clark (la.) 514 ; Bartlett v. Fifield, 45 N. H. 81. » 2 Dan. Ch. Pr. 1576, and notes 5 & 6 ; Cooper Eq. PI. 89. « Story's Eq. PI., g 408; Mitf. Eq. PI. 88; Cooper Eq. PI. 91, 92; McCall V. Graham, 1 Hen. & M. 13 ; Strader v. Byrd, 7 Ham. 184. ' Story's Eq. PI., §§ 412, 414, 416 ; 2 Dan. Ch. Pr. 1578, note 1 ; 2 Barb. Ch. Pr. 92; Quick v. Lilly, 2 Green Ch. 255; Willan v. Willan, 16 Ves. 87; Dias V. Merle, 4 Paige, 259; Greenlee v. McDowell, 4 Ired. Eq.481; Livingston V. Hubbs, 3 Johns. Ch. 124. 8 Story's Eq. PI., §? 415 and note 3, 416 ; Mitf. Eq. PI. 85, 87 ; Dexter v. Arnold, 5 Mason, 303; Massie v. Graham, 3 McLean 42. BILL OF EEVUEW. 371 The granting of a bill of review for newly discovered evi- dence, is not a matter of right, but rests in the sound discretion of the Court.9 Where the evidence is merely cumulative, and is directed to a point to which the attention of the moving party must have been called at the first hearing, the failure to use it will be considered want of diligence. ^ " A bill of review upon newly discovered evidence may be. brought after an affirmance of the decree on appeal or a reversal. 11 A bill of review applies only to a final decree. ^^ It con- cerns the origincd controversy only, and does not cover svbse- qu£nt proceedings.^* SECTION II. PAHTIES. All the parties to the original bill should be made parties to the bill of review, for it is an established principle that no one ought to be affected by any decree without his first being heard. 1* No person except the parties and their privies in repre- sentation, such as heirs, executors and administrators, can file a bill of j-eview.15 But other persons in interest and in pri- » Story's Eq. PI., ? 417; 2 Dan. Ch. Pr. 1577 and note 2; Dexter v. Ar- nold, supra ; Perry v. Phelps, 17 Ves. 176. '0 Taylor v, Boardman, 25 Mich. 527 ; Ryerson v. Eldred, 23 Id. 537. " Story's Eq. PI., § 418; Cooper Eq. PI. 92; Mitf. Eq. PI. 88. 'i! Mackey V. Bell, 2 Munf. 523. »« Giesv. Green, 42 Mich. 107; Mickle v. Maxfield, lb. 305, and cases cited on page 313 ; Thompson v. Jarvis, 40 Mich. 526, and cases cited. " Story's Eq. PI. 420; Cooper Eq. PI. 95; Dexter v. Arnold, £ Masoo30S. " Story's Eq. PI., J 409. 372 BILL OF REVIEW. vity of title or estate, who are aggrieved by the decree, such as devisees, etc., are entitled to maintain an original bill, in the nature of a bill of review, so far as their own interests are concerned. 1 ^ Ko persons but those having an interest, are entitled to maintain such a bill, and even then they must have been aggrieved, however injuriously the decree may affect the rights of third persons.^ ^ SECTION III. LEATB TO FILE. No such bill can be filed either upon the discovery of new matters or otherwise, without special leave of the Court.'* Under the foregoing rule the application must be made by petition. It should state the nature of the suit, the decree, and the errors of law, or the new matters, as the case may be, upon which the application is founded, and should ask for lib- erty to file a bill of review to bring such decree into review. The petition must describe the new evidence distinctly, and specifically state when it was discovered, and its bearing on the decree. On the hearing of such petition, afQdavits may be admitted on both sides if necessary to explain the nature of the evidence. '8 i« Mitf. Eq. PI. 92. 1' Story's Eq. PI., g 409 ; Mitf. Eq. PI. 205 ; Webb v. Pell, 3 Paige, 368 ; Thomas v. Harvie Heirs, 10 Wheat. 146. »8 Ch. Rule 101. l» Dexter v, Arnold, supra; 2 Barb. Ch. Pr. 95; 2 Hoff, Ch, Pr, 8- BILL OP EEVIEW. 373 The granting of sucli a bill is not a matter of right, but it rests in the sound discretion of the Court, in view of all the circumstances and consequences.^" It is a general rule that leave to file a bill of review will not be granted unless the decree has been performed. But if security is given for the full performance of the decree it will be sufiBicient.^i The true construction of the rule seems to be that the party need only perform so much of the decree as at the time of filing his bill he is bound to perform. ' If after the bill is filed the period arrives when the money ought to be paid, the party must pay it, or an application to dismiss the bill may. be made.^^ Under Chancery Eule 101, on filing a bill of review or other bill in the nature of a bill of review, the complainant 'must make the like deposit, or give security to the adverse party in the same amount as is required on an appeal from an order or decree. ^^ In divorce cases the Court may from time to time after decree, upon petition of either of the parents, revise and alter such decree concerning the care and custody of the children. 2* A petition for bill of review, filed after long delay, will be governed by equitable considerations, and will not be allowed for technical irregularities, where it appears that the petitioner has not been damnified. It is not governed by the same considerations as a bill of review, in reference to the opening of aU errors, whether specified or not.^ ^ " Story's Eq. PI., §417; 2 Hoff. Ch. Pr. 8; Thomas v. Harvie's Heirs, 10 Wheat. 146; Perry v. Phelps, 17 Ves. 176; 2 Dan. Ch. Pr. 1578. 21 1 Hoff. Ch. Pr. 571 ; 2Ib. 9 ; Wiser v. Blachly, 1 Johns. Ch. 437. 2 2 2 Barb. Ch. Pr. 96. 2s Mickle v. Maxfield, 42 Mich. 309. 2* 2 Comp. L. 1871, § 4749. *^ Johnson v. Shepard, 35 Mich. 115, S?4 Sill &¥■ SEViEvr, An order granting leave to file a bill of review cannot be made at chambers or without notice.^® If such a bill is filed without leave, it may be dismissed on motion. 2' The Circuit Court cannot allow a bill of review upon a decree made by the Supreme Court without leave granted.^* An order allowing a bill of review is interlocutory and not appealable,^' but an order denying such leave is final.*" The practice in applying for leave to file bills of review is the same as in the case of re-hearing. ^'^ [See Ante, p. 194.] SECTION IV. •VSTtTHIN WHAT TIME TO BE BROUGHT. In this State the bill must be brought within the time lim- ited for bringing an appeal in Chancery, {Ante, p. 215] except upon newly discovered facts or evidence, unless upon reasons satisfactory to the Court. ^'^ It should appear upon the face of the bill that it is filed within the proper time,^* though under Enle 101 the objec- " People V. Pt. Huron Circuit, 40 Mich. 166. 2' 2 Dan. Ch. Pr. 1579 ; Davis v. Bluck, 6 Beav. 393-8. 2 8 Ryerson v. Eldred, 18 Mich. 491. " Beecher v. M. & P. R. Mill, 40 Mich. 308; Maxfield v. Freeman, 39 Id. 65. "> Johnson v. Shephard, 35 Mich. 115; Beecher v. M. & P. R. Mill, supra. 81 Mickle V. Max6eld, 42 Mich. 313. 8 2 Ch. Rule 101; Story's Eq. PI., U 410, 419, 635; Mitf. Eq. PI. 88; Cooper's Eq. PI. 91, 93, 216. 8 3 Shepherd V. Larue, 6 Munf. 529 ; Story's Eq. PI. g 635 ; Mitf. Eq. PI. 204, 205,212, 271 ; Foster v. Hodgson, 19 Ves. 180. In the U. S. Courts Bills of Review for errors apparent on the face of the decree are limited to five years, that being the limitation of writs of error in judg- ments at law. Massie v. Graham,^ McLean 41; Nolan v. Urmston, Jf Ohio ijo; Thomas v. Harvie's Heirs, 10 Wheat, 146, BILL OF EEVIEW. 375 tion may doubtless be taken upon the hearing of the peti- tion.'* SECTION V. FRAME OF. The bill should state the former bill, and the proceedings thereon, the decree and the point of the alleged grievance, and the ground of law or matter discovered upon which he seeks to impeach it.^^ The bill may simply pray that the decree may be reviewed and reversed on the point complained of, if it has not been carried into execution. If it has been executed, the bill should pray the further decree of the Court to put the party complaining, in the situation in which he would have been if the said decree had not been executed.'^ If the bill is brought to review the reversal of a former decree, it should pray that the original decree may stand. The bill may also, if the original suit has become abated, be at the same time a bill of revivor. '' A supplemental bill may likewise be added if any event has happened which requires it.'* »* 2 Hoff. Ch. Pr. 9. " 2 Dan. Ch. Pr. 1580 ; Story's Eq. PI., ? 420 ; Mitf. Eq. PI. 88, 89 ; Coo- per Eq. PI. 95.' " Mitf. Eq. PI., 88, 89 ; Dexter v. Arnold, 5 Mason 308, 309. »' Mitf. Eq. PI. 88, 89. »» Mitf. Eq. PI. 88, 90. 376 BILL OP EEVIEW. SECTION VI, DEFENSES. The usual defense to a bill of review for error apparent upon tlie decree, is by plea of the decree and demurrer against opening the enrollment. A demurrer, however, seems to be the proper defense. ^^ If the bill be brought on new matter the defendant must plead or answer.*" If any matter beyond the decree is offered as a defense to a bill of review, it should be pleaded.* i If a demurrer has been allowed, the order allowing it is an effectual bar to a new bill on the same grounds, and may be pleaded.* ^ If a decree is sought to be impeached for fraud, the proper defense is a plea of the decree accompanied by a denial of the charge.** Under Chancery Eule 101, questions arising out of newly discovered evidence or the time of filing, would be determined by the Court upon the hearing of the petition. The same rule would dispense with the necessity of demurring to new matter. On the argument of a demurrer where several errors have been assigned, if the complainant prevails in but one, the demurrer must be overruled, as one error is sufficient to open the enrollment.** 8 9 2 Dan. Ch. Pr. 1583 and note 3; Cooper Eq. PI. 96; Webb v. Pell, 3 Paige, 368. " 2 Dan. Ch. Pr. 1584 ; Dexter v. Arnold, supra. *i Mitf. Eq. PI. 291. " Story's Eq. PI., ? 637. *8 Mitf. Eq. PI. 293. *4 Mitf. Eq. PI. 204. BILL OF EEVTE-W. 377 The first question that arises is whether the enrollment should be opened and the decree reviewed. If the demurrer is overruled, the second question is, should the decree be reversed, and the complainant may read the bill and answer as at a re-hearing. If the bill assign errors of law, and the plea and demurrer are allowed, an order to that effect is made, and that the bill be dismissed. If the demurrer, or plea and demurrer, are overruled, the decree is that the original decree be reversed, and the errors be allowed.*^ If the bill be brought on new matter, the defendant may put in an answer controverting the fact that the matter is newly discovered.* « " 2 Barb. Ch. Pr. 100. *' Dexter v. Arnold, 5 Mason, 303. 48 CHAPTBE XXXIII. BILL OF DISOOVEEY. A bill of discovery is a bill for tbe discovery of facts rest- ing in the knowledge of the defendants, or of deeds or writings or other things in his custody or power. It seeks no relief in consequence of the discovery, although it may pray for the stay of proceedings till the discovery is made. The bill is commonly used in aid of the jurisdiction of some Court of law to enable the party who prosecutes or defends an action at law to obtain a discovery of the facts which are material to the prosecution or defense thereof. ^ It is a settled rule that a bill of discovery will not lie where the facts sought to be discovered are within the knowledge of any witness. It is only where no one but the defendant can be found who has knowledge on the subject that a discovery can _ be claimed of such defendant in aid of legal proceedings.^ The bill must show that the discovery sought can make the subject matter of the suit a proper case for equitable cogniz- ance ; that the case is such as renders the discovery material to the complainant in the bill to support or defend a suit ; that the complainant has a title and interest in the subject matter of the discovery, and what they are; and it must state a case which will constitute a just ground for a suit or a defense at law. The bill must also set forth with reasonable certainty the title of the complainant.' 1 Story's Eq. PI. §311; Story's Eq. Jur. g 1483; Mitf. oti PI. 53; Cooper's Eq. PI. 60. ' Riopelle v. Doellner, 26 Mich. 105 ; Carroll v. F. & M. Bank, Harr. Ch. 197 ; McBride v. Cicott, 4 Mich. 478 ; Brown v. Swann, 10 Pet. 502. 3 Clark V. Davis, Harr. Ch. 227; Story's Eq. PI. §§ 317, 318, 319; Mitf. Eq. PI. 157, 187; Carroll v. F. & M. Bank, Harr. Ch. 197; Bleeker v. Bing- ham, 3 Paige, 246. 378 BILL OF DISCOVEET. 379 Where an answer under oatli is waived, no ground of relief can be set up that rests merely on the necessity of a discovery.* A Court of Equity may compel a discovery in aid of a defense at law and stay the proceedings, until an answer has been obtained.^ One of the fundamental rules of this branch of equity is that the complainant is entitled only to a discovery of what is necessary to maintain his own title, and not have a discovery of the bill of the other party from whom he claims discovery.* The bill must also state that the discovery is asked for the purpose of some suit brought, or intended to be brought.'' A party must be diligent in applying to a Court of Equity for aid by discovery.* Where a complainant, entitled to discovery only, prays for relief in addition, his whole bill is'^demurrable.' Where a defendant who should have demurred to discovery only, demurs both to discovery and relief, the demurrer will be overruled.!" The case is never brought to a hearing upon a mere bill of discovery, but as soon as the answer is perfected, the defend- ant is entitled to move for costs. ^^ Since the statutes of Michigan have allowed parties to become general witnesses, there seems to be no farther office for bills of discovery. 12 [For a full discussion of the practice, the student is referred to the books of Mr. Barbour, Mr. Daniell and Mr. Hoffman.] 4 Torrent v. Rodgers, 39 Mich. 85. ' Wright V. King, Harr. Ch. 12. ' Story's Eq. PL ? 317; Cooper Eq. PI. 58; Mitf. Eq. PI. 190; 2 Story's Eq. Jur. I 1490; Wigram On Discovery, p. 15. ' Story's Eq. PI. g 321. « Wright V. King, Harr. Ch. 12. ' Welles V. River Raisin Co., Walk. Ch. 35. lo Edwards v. Hulbert, Walk. Ch. 54; Burpee v. Smith, lb. 327. '1 2 Dan. Ch. Pr. 1558; 1 Hoff. Ch. Pr. 111. 12 Riopelle v. Doellner 2") Mich. 105; Shelden v. Wolbridge, 44 Id. 251; See Hubbard v. McNaughton, 43 Id. 223 ; 2 Comp. L. 1871, as amended by Laws of 1881, p. 335. CHAPTER XXXIV. BILL OF INTEEPLEADEE. Section 1. Nature, Office of, and when Puoper. 2. Frame of. 3. Defenses. SECTION I. NATTJEE, OFFICE OF, AND WHEN PEOPEE. A bill of interpleader is used when two or more persons claim the same debt or duty from the complainant by different or separate interests, and he is uncertain with which of the claims he should comply. In such a case he may apply to the Court to compel them to interplead and state their several claims, so that the Court may adjudge to whom the same debt or duty belongs. ^ The object of such a bill is to protect a complainant stand- ing in the situation of an innocent stake-holder, and where a recovery against him by one claimant of the fund, might not protect him against recovery by another complainant.* A bill of this nature lies though the party has not been sued at law, or has been sued by one only of the conflicting claimants.* 1 Sprague v. Soule, 35 Mich. 35; Story's fiq. PI. g 291; 2 Dan. Ch. Pr. 1560, and note 1 ; 1 Hoff. Ch. Pr. 99; Mitf. PI. 48, 49; Cooper's Eq. PI. 45, 56; 2 Story's Eq. Jur. ?g 806, 824; Adam's Eq. Jur. 202; Bell v. Hunt, 3 Barb. Ch. Rep. 391 ; Lincoln y. R. & B. R. R., 24 Vt. 639. s 1 Hoff. Ch. Pr. 99; Badeau v. Rogers, 2 Paige, 209. » Richards v. Salter, 6 Johns. Ch. 445. 880 BILL OF INTEEPLEADEK. 381 To maintain this bill the complainant must be in posses- sion;* and he must claim no interest in the property in dis- pute.' He must show a right to compel the defendants to inter- plead, and it must appear that it is necessary that the com- plainant should be uncertain as to whom the right belongs. ^ There must also be a privity of some sort between all the parties, such as privity of estate or title or contract; and it must appear whether the claim by all is of the same nature and character, for where the claimants assert their rights under adverse titles, and not in privity, and their claims are of different natures, the bUl cannot be maintained.' The complainant must also show title in himself, and not as a mere agent or trustee.' BUls of interpleader should not be filed except in cases where the complainant can in no other way be protected from an unjust litigation in which he has no interest.' But it should be filed immediately after or before the commencement of proceedings at law, and should not be delayed until after verdict or judgment, i" Absolute identity in conflicting claims is not requisite to sustain a bill of interpleader ; but where the several claim- ants claim a part only of the same fund, and the aggregate amount far exceeds the fiind, the bill will be entertained. ^ * * 1 HofiF. Ch. Pr. 102; Nash v. Smith, 6 Conn. 421. » Atkinson v. Manks, 1 Cow. 691 ; Mohawk & H. R. R. v^Clute 4 Paige, 384; 2 Dan. Ch. Pr. 1561 ; Stoiy's Eq. PI., ? 290. « 1 Hoff. Ch. Pr. 102. ' Story's Eq. PI., g 293 ; 2 Story's Eq. Jur. |? 807-821 ; Mitf. Eq. PI. 142, 143 ; Cooper Eq. PI. 48. » Story's Eq. PI, g 296; Mitf. Eq. PI. 142. » Mich. & O. Plaster Co. v. White, 44 Mich. 25 ; Badeau v. Rodgers, 2 Paige, 209 ; Bedell v. Hoffinan, lb. 199. , " Mich. & O, Plaster Co v. White, supra; 2 Dan. Ch. Pr. 1561, note 3; Cornish v. Tanner, ] Y. & J. 333. ' I School Dist. of G. Haven v. Weston, 31 Mich. 97 ; Story's Eq. PI., JJ 810, 824; Mitf. Eq PI. 59,411; Angell v. Hadden, 15 Ves. 244; S. C. 16 Id. 203; Spring v. S. G. Ins. eo.,8 Wheat 268; City Bank v. Bangs, 2 Paige 570. 382 BILL OF INTEEPLEADEE. Courts of equity are generally very liberal in protecting mere naked trustees or stakeholders against conflicting claims to the money or thing in their hands, and from the vexation and embarrassment attending the litigation concern- ing it, in which they have no interest.' ^ SECTION II. FEAMB OF. A bill of interpleader should allege— 1. That two or more persons have preferred a claim against the complainant. 2. That they claim the same thing. 3. That the complainant has no beneficial interest in the thing claimed; and 4. That he cannot determine without hazard to himself to which of the two defendants the thing of right belongs.'* The complainant should expressly negative any interest in himself in the matters in controversy. The claims of the defendant should be specifically set forth, so that they may appear to be of the same nature and character, and the fit subject of a bill of interpleader.'* The bill should also show that there are proper persons in esse capable of interpleading and of setting up opposite claims.'® 1 2 School Dist. of G. Haven v. Weston, 31 Mich. 97 ; Bell v. Hunt, 3 Barb. Gh. Rep. 391 ; Farley v. Blood, 30 N. H. 363. i» Bell V. Hunt, 3 Barb. Ch. Rep. 391. 1* Story's Eq. PI. ? 293; Mitf. Eq. PI. 142, 143; Cooper's Eq. PI. 48; 2 Dan. Ch. Pr. 1561 ; Toulmin v. Reid, 14 Beav. 499. " Story's Eq. PI., 21 295, 821. BILL OF INTEEPLEADEE. 383 As the sole ground upon which the jurisdiction of the Court is supported, is the apprehended danger of injury to the complainant from the doubtful title of the defendants, the Court will not permit the proceeding to be used coUusively. Therefore the complainant must file an affidavit that there is no collusion between him and any of the parties. An omis- sion in this respect would be clearly a cause of demurrer. But when the bill contains such statement, and is sworn to, it is sufficient.^® The Court will not determine on counter-affidavit the feet of collusion, 1' though when there is suspicion of collusion, it may direct an inquiry. ^ ' If there is any money due, the complainant must bring it into court, or offer to do so by his bill.' ' Prayer. — The bill prays that the defendants may interplead so that the Court may adjudge to whom the money or property belongs, and that the complainant may be indemnified.^" If any suits at law are brought against him, the bill may pray that the complainant be restrained from proceeding until the right is determined.^ ' The bill should be before, or immediately after, the com- mencement of proceedings at law.^^ i« 2 Dan. Cb. Pr. 1562; Marvin v. EUwood, 11 Paige, [365; Shaw v. Cos- tor, 8 Id. 339; Mitf. Eq. PI. 143; Story's Eq. PI. | 291. 1' 2 Dan. Ch. Pr. 1563; Hamilton v. Marks, 5 De. G. & S. 638, 643. • ' Dungey v. Angove, 2 Ves. Jr. 304. 19 Story's Eq. PI. ? 291; Mitf. Eq PI. 143; 2 Dan. Ch. Pr. 1563; 2 Story's Eq. Jur. g 809, and notes 9, 10, 11; Shaw v. Coster, 8 Paige, 339 ; Nash v. Smith, 6 Conn. 421; Williams v. Walker, 2 Rich. Eq. 291, "0 Mitf. Eq PI. 49. " 2 Dan. Ch. Pr. 1561. «» Union Bank v. Kerr, 2 Md. Ch. Dec. 460. 38i BILL OF INTEKPLEADEE, SECTION III. DEFENBEB. If the bill does not show a right to compel the defendant to interplead, a demurrer lies.^^ It must also show that each of the defendants claims a right, or both may demur ; one because the bill shows no right of claim in him, the other, because it shows no claim of right in the co-defendant. 2* Whenever the objection appears upon the face of the biU, it should be raised by demurrer. ^^ The defendants may also put in an answer admitting or denying the facts alleged, ^^ or may set up distinct and inde- pendent facts in bar of the suit. If the defendants do not deny the statements of the bill, the ordinary decree is that the defendants do interplead, and the complainant then withdraws from the suit.^' But if the defendants, or either of them, make contest, the complainant must reply to the answer and close the proofs in the usual manner. 2* Until the money is brought into court an injunction can- not be issued.'' » The injunction stays all proceedings.* « «» Mitf. Eq. PI. 142. «* 2 Hoff. Ch. Pr. 104. "^ Shaw V. Coster, 8 Paige, 339. »« Toulmin v. Reid, 14 Beav. 499. «' Story's Eq. PI. ?§ 297, a, 362; 2 HoflF. Ch. Pr. 104; City Bank v. Bangs, 2 Paige, 570, 572; Angell v. Hadden, 16 Ves. 203. »8 Story'sEq. PI. §297,a; Story's Eq. Jur. gg 822, 824; City Bank v. Bangs, supra. ' » 2 Dan. Ch. Pr. 1 567 ; Vicary v. Widger, 1 Sim. 15 ; Walbrauke v. Sparks, lb, 385; Sieveking v. Behrens, 2 My. & Craig, 581. '" Hamilton v. Marks, 19 Eng. L. & Eq. 321. BILL. OF INTEEPLEADEE. 385 Bills may be taken as confessed as in other cases ; ' i and the practice as to taking the bill as confessed and bringing in absent defendants, is substantially the same as in other cases. ^^ In an interpleading suit the answer of one defendant may be read agaiast the others.*^ A stranger to the record cannot be heard except after amendment to the bill.^* Hearing.— The Court disposes of questions arising upon bills of interpleader in modes according to the nature of the question, and the manner in which it is brought before it. If the cause is ready for a decision between the defendants, the Court settles the conflicting claims of the parties, and makes a final decree on the first hearing. If the case is not in such readiness, the Court merely decides that the bill is properly filed, dismisses the complain- ant with his costs to that time, and directs a reference to ascer- tain and settle the rights of the defendants to the fond in con- troversy.*^ If afber 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.*' A decree that the bill of interpleader is properly filed, is the only decree which the complainant is interested in obtain- ing.*' If the complainant dies after decree no biU of revivor is necessary.** If the bill is dismissed, there can be no farther proceedings by consent as between the defendants. »' Badeau v. Rogers, 2 Paige, 209, Aymer v. Gault, lb. 284. = 8 Stevenson v. Anderson, 2 Ves. & B. 411. «s Bowyer v. Pritchard, 11 Price, 103, ' 3* Mich. & O. Plaster Co. 'v. White, 44 Mich. 25. 8 5 Angell V. Hadden, 16 Ves. 203; City Bank v. Bangs, 2 Paige, 570. " Mich. & O. Plaster Co. v. White, 44 Mich. 25 ; Hodges v. Smith, 1 Cox Ca. 357. 3' Story's Eq. PI., § 297, b; Atkinson v. Manks, 1 Cow. 691. 8 8 2 Hoff. Ch. Pr. 106; Mitf, Eq. PI. 67. 386 BILL OF INTEEPLEABEB. Costs. — On a bill of interpleader, jjrqperZy filed, the com- plainant is in general entitled to costs out of the fund.** If unnecessarily filed, the defendants will be entitled thereto.** Interest. — Interest wUl not be stopped by a bill of inter- pleader improperly filed.* » »» Mich. & O. Plaster Co. v. White, 44 Mich. 25; 2 Dan. Ch. Pr, 1570; Aymer v. Gault, 2 Paige, 284. *» Mich. & O. P. Co. V. White, supra; Bedell v. Hoffinan, 2 Paige, 199, 209 ; Shaw v. Coster, 8 Paige, 339. *J Mich. & O. Plaster Co. v. White, 44 Mich. 26. / CHAPTEE XXXV. CEOSS BILL. Section 1. Purpose of. 2. In what Cases Brought. 3. When to be Brought. 4. Frame of Bill. 5. Defenses. SECTION I. PUEPOSE OF. Where a defendant is entitled to some positive affirmative relief, beyond which the complainant's bill will afford him, he can only obtain it by a bill of his own, called a cross-bill. ^ A cross-bill is a bill brought by one or more of the defend- ants against the complainant in the same suit, or against him and the other defendants, or some of them, touching the mat- ters in question in the original bill.^ When brought against co-defendants in a suit, the com- plainant in such suit must be named a defendant with them.^ It is a species of defense which can only be made complete by obtaining some affirmative relief against the complainant or co-defendant. It therefore is but one case.* > Schwarz v. Sears, Walk. Ch. 170;vVary v. Shea, 36 Mich. 388; 2 Dan. Ch. Pr. 1548 ; Story's Eq. PI., § 398, a; 2 Barb. Ch. Pr. Chap, ix, p. 126. » 1 Hoff. Ch. Pr. 345; Story's Eq. PI., § 389; Mitf. Eq. PI. 81; Cooper Eq. PI. 85 ; 2 Dan. Ch. Pr. 1548, 1549. Definition of. — See Kennedy v. Kennedy, 66 111. 190 ; Tobey v. Foreman, 79 Id. 489 ; Armstrong v. Pratt, 2 Wis. 299. s Cooper Eq. PI. 85. < Andrews v. Kibbee, 12 Mich. 94; Story's Eq. PI., ? 393; Field v. Schief- felin, 7 Johns. Ch. 252. 387 388 CKOSS BILL. Bills of tliis kind are brought either to enable the defend- ant to support his own case by a discovery from the complain- ant, ^ when it is too late to use the same defense by way of plea or answer, as after replication and issue joined,^ to obtain relief against the complainant in the orighial cause, founded sometimes wholly upon the case made by the pleadings therein, but which cannot -be given in that suit,^ or to settle conflicting claims between co-defendants, which it is found necessary to adjust, before a complete decree can be made upon the subject matter of the original suit and the rights of the parties therein.* A cross-bill can be sjistained only on matter growing out of the original bill and embraced by it. * But it is not restricted to the issues of the original bill.'" It cannot be maintained if the same relief can be obtained in the original suit.^^ A claim by defendant in a foreclosure suit of a prior equit- able mortgage to that of complainant, is a proper subject for a cross-bill. 1^ In general the defendant cannot have any positive relief against the complainant, even on the subject matter of the suit, except by cross-bill,* ^ unless perhaps in the case of a bill for specific performance.'* 6 1 HofiF. Ch. Pr. 345; Story's Eq. PI., ? 389. 6 1 Hoff. Ch. Pr. 345; Mitf. Eq. PI. 64. » 1 Hoff. Ch. Pr. 345; Day v. Newman, 2 Cox, Ca. 76; Wisner v. Fam- ham, 2 Mich. 472. 8 Story's Eq. PI. g 392, 392 a ; 1 Hoff. Ch. Pr. 345, 346; Mitf. Eq. PI. 81 ; Cooper Eq. PI. 85; Pattison v. Hull, 9 Cow. 747. » Andrews v Kibbee, 12 Mich. 94 ; Story's Eq. PI., g 631 ; 1 Hoff. Ch. Pr. 346 ; Griffith v. Merritt, 19 N. Y. 529 ; Gallatian v. Cunningham, 8 Cow. 361. i» Nelson v. Dunn, 15 Ala. 501. 11 1 Hoff Ch. Pr. 347; Story's Eq. PI. 3 389; Braman v. Wilkinson, 3 Barb. Ch. Rep. 151. 12 r. & M. Bank v. Bronson, 14 Mich. 362, and note in annotated ed. For other defenses in foreclosure suits, see Wikox v. Allen, 36 Mich. 160. l» Andrews v. Kibbee, 12 Mich 94; Mason v. McGirr, 28 III. 322; Weis- man v. Smith, 6 Jones Eq. (N. C.) 124 ; Pattison v. Hull .9 Cow. 747 ; Miller V. Gregory, 1 C. E. Green (N. J.) 274. " Story's Eq. PI., g 394; Cooper Eq. Pl.'85, 86. CROSS BILL. 389 A cross-bill cannot be maintained if the defense to the original biU feils where both are based on the same facts. ^^ SECTION II. IN WHAT CASES BEOUGHT. A cross-bill lies for equitable relief only. If brought for a mere legal title which is the subject of an ejectment, it will be dismissed with costs. ^^ It is necessary to enable a defendant to have a decree against a co-defendant.* '' As a general rule such a bill is always necessary when the defendant is entitled to some positive affirmative relief beyond which the original bill can afford him.** Af&rmative relief can never be given on an answer, i* SECTION III. WHEN TO BE BEOUGHT. The proper time for filing a cross-bill is at the time of put- ting in the answer to the original suit, and before a replication is filed to the answei; of the defendant to the original bill ; and as the matters of defense upon which a cross-bill is I s Hall V. Harrington, 41 Mich. 146. '« 2 Barb Ch. Pr. 128 ; Andrews v. Hobson, 23 Ala. 219. T Story's Eq. PI. § 392; Mitf. Eq. PI. 81. ' ' Pattison v. Hull, 9 Cow. 747 ; Schwarz v. Sears, Walk. Ch. 170. i» Caruthers v. Hall, 10 Mich. 41; Dye v. Mann, lb. 291; McConnel v. Smith, 23 111. 611. 390 OEOSS BILL. founded must be stated in the answer to the original suit, as well as in the cross-bill, it can seldom be necessary to delay fil- ing the latter till after the cause is at issue. 2" If a cross-bill is filed after issue is joined in the original cause, proceedings will be stayed only upon showing a satis- factory excuse for the delay. ^^ It is a general rule that a cross-bill must be brought before the proofs in the original suit have been closed unless the com- plainant in the cross-bill will go to the hearing upon such proofs.^ ^ The rule is established to prevent the danger of perjury in case the parties to the cross-bUl should, after the close of the proofe, be permitted to examine witnesses de novo to the same matters ; hence it is a rule that when a cross-bill is filed after the close of proofe, and before a decree in the original cause, the evidence taken on a cross-bill to any matters in issue in the original cause cannot be read at the hearing of the latter. And on the hearing of the cross- cause the testimony of new witnesses to the matters in issue in the original cause will not, after the decree in the original cause, be allowed to be read in the cross-cause. 2* But although the general rule is that a cross-bill must be filed before the proofs are closed, to entitle a party to take tes- timony in support of the facts asserted in it, independent of the answer, yet this rule is a restriction upon the rights of the defendant only, and not upon the Court ; for when it is neces- ary for the purpose of justice, the Court may, upon the hear- ing of a cause, direct a cross-bill to be filed, as where persons in opposite interests are co-defendants, and the Court cannot <"> 2 Dan. Ch. Pr. 1548, and note 2; Irving v. De Kay, 10 Paige, 319, 322; 1 Smith's Prac. (2 Am. Ed.) 460. 81 Braman v. Wilkinson, 3 Barb. Ch. Rep. 151; Irving v. De Kay, supra; White V. Buloid, 2 Paige, 164. 2 2 Story's Eq. PI. | 395; Cooper's Eq. PI. 87; 1 Hoff. Ch. Pr. 352; Field V. Schieffelin, 7 Johns. Ch. 252; Jackson v. Grant, 3 C. E. Green, (N.J.) 145; White V. Buloid, 2 Paige, 164. 88 Wilford V. Beasley, 3 Atk. 501; Story's Eq. PI. § 395 and note 3. CROSS BILL. 391 determine said interests upon the bill already filed, and which is necessary to make a complete decree.'* SECTION IV. FRAME OP BILL. A cross-bill should be confined to the matters stated in the original bill, and should not introduce new and distinct mat- ters not embraced therein, for as to such matters it is an origi- nal bill. 2 ' It should state the original bill and the proceedings thereon, and the rights of the parties exhibiting the bill, which are necessary to be made the subject of cross-litigation, or the ground on which he resists the claim of the complainant in the original bill. 2* But a cross-bill being generally considered a defense, or as a proceeding to procure a complete determination of a matter already in litigation, the complainant is not, at least as against the complainant to the original bill, obliged to show any ground of equity to support the jurisdiction of the Court. It is, treated rather as a mere auxiliary suit. 2' When the cross-biU seeks not only a discovery, but relief, care should be taken that the relief prayed by the cross-bill 2* Mitf. Eq. PI. 82, 83; 2 Dan. Ch. Pr. 1550; Cooper's Eq. PI. 85; Story's Eq. PI. ?| 396, 397 ; Field v. Schieffelin, supra; Cartwright v. Clark, 4 Mete. 104; Roberts v. Peavey, 29 N. H. 392; Barker v. Belknap, 39 Vt. 168, 173; Fletcher v. Holmes, 25 Ind. 458 ; Arrostrong v. Pratt. 2 Wis. 299. /" '^ Andrews v. Kebbee, 12 Mich. 94; Story's Eq, PL g 401; Gallatian v. / Cunningham, 8 Cow. 361. V "> 2 Dan. Ch. Pr. 1549; Story's Eq. PI. ? 401; Mitf. Eq. PI. 81; Cooper's Eq. PI. 88; Barker v. Belknap, supra. " Story's Eq. PI. | 399; 2 Dan. Ch. Pr. 1549; Mitf. Eq. PI. 81, 303; Cooper's Eq. PI. 86 ; Caitwright v. Clark, 4 Mete. 104; Field v, Schieffelin, 7 Johns. Ch. 252. 392 CEOSS BILL. should be equitable relief; for to this extent it inay be consid- ered as not purely a cross-bill, but in the nature of an original bill, seeking farther aid from the Court ; and then the relief ought to be such as, in point of jurisdiction, the Court can give.'** If the complainant in the cross-bill wishes an order to stay the proceedings in the original suit, tl;e cross-bill must be veri- fied by some person who knows the facts. ^' SECTION V. DEFENSES. Cross-bUls are liable to all the pleas in bar applicable to original bills, except pleas to the person of the complainant, jurisdiction of the Court, and a plea of a suit for the same object, pending in a court of concurrent jurisdiction, ^o The converse is equally true, that a cross-bill is not liable to any plea not applicable to an original bill. A demurrer for want of equity will not lie to a cross-bill filed by a defendant in a suit against the complainant in the same suit touching the same matter. ' i But when a cross-bill seeks relief of an equitable nature, and does not contain proper allegations which confer an equit- able title to such relief, it will be demurrable.^ ^ Also when it is filed contrary to the practice of the Court.^^ 2» Story's Eq. PI. g§ 398, 629; Cooper's Eq. PI. 86; Mitf. Eq. PI. 81, and note 2. " Talmage v. Pell, 9 P aige, 410 ; Van Valtenbu^ v. Albeny, 1 Iowa, 264. «» Mitf. Eq. PI. 290, 291; Cooper's Eq. PI. 304. » ' Mitf. Eq. PI. 203: Cooper's Eq. PI. 81, 215. »2 Cooper's Eq. PI. 86, 215; Story's Eq. PI. | 630. " Story's Eq. Pi. § 632; Cooper's Eq. PI. 87 ; 2 Barb. Ch. Pr. 134; White V. Buloid, 2 Paige, 164. CROSS BILL. 393 It is otherwise when filed by order of the Court.'* Answer. — It is a general rule that the complainant in the original bill is not bound to answer a cross -bill until the orig- inal is answered, unless the Court shall otherwise specially direct.*^ The defendant to the cross-bill may therefore obtain, on motion of course, an order for a limited time to answer the cross-biU after the defendant to the original bill has put in an answer thereto.*^ But if the complainant in the original bill, afber the cross- bill is filed, amend his biU in things material, the bill, as to the amendments, is a new one, and the complainant therein must answer the cross-bill before he can require an answer to the amendments.*' In which case the plaintiff in the cross-suit may obtain, on motion, an order that the proceeding in the original suit be stayed until the cross-bill was answered.** The complainant in the original suit does not waive his right to answer by getting an order for time to answer the crossbill.* » SECTION VI. PEOCEEDINGS. The complainant in the original suit is not obliged to stay proceedings therein upon the filing of a cross-bill, except by a special order of the Court. And it is not a matter of «* Mitf. Eq. PI. 203. 8= Ch. Rule 20; 2 Dan. Ch. Pr. 1551; Story's Eq. PI. g 845; Long v. Bur- ton, 2 Atk. 218. The practice is the same in the U. S. Court. — Eq. Rule 72. «« 2Dan.C3i.Pr. 1551; 1 SmithCh.Pr. (2Ain. Ed.) 462; Holmes v. Barde- ley, 7 Beav. 69. »' Hoff. Ch. Pr. 350; Steward v. Roe, 2 Pr. Will. 435. »» 2 Dan. Ch. Pr. 1552, and note 2 ; Long v. Burton, 2 Atk. 218. »9 1 Younge, 330; 2 Barb. Ch. Pr. 134. 50 394 OBOBS BILL. 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.*" The cross-bill must be sworn to if the complainant therein wishes a stay of proceedings in the original suit. Notice of the application must be given to the adverse party ^ and all of the complainants in the cross-bill must join in the appli- cation, and the matters stated therein must be sworn to by some one having knowledge of the facts.* ^ If the cross-bill is not filed before, or at the time of answer- ing, the delay must be accounted for before proceedings will be stayed.* 2 After both causes are at issue, or in readiness to beheard, the complainant in the cross-suit may have an order that they be heard together.* " If a cross-bill is taken as confessed, it may be used as evi- dence against the complainant in the original suit, on the hearing, and will have the same effect as if he had admitted the same facts in an answer.** As previously mentioned, if the complainant amends the original bill in material points, subsequent to the filing of the cross-bill, it thereby becomes a new bill, and he loses his pri- ority.** Such amendment will not stay proceedings in the original suit, but the complainant in the cross-bill must move that they be stayed until the complainant answer the cross-bill. If an original bill abates by the marriage of a complainant, and a cross-bill is then filed, the priority of the original bill is lost.* 5 *» White V. Buloid, 2 Paige, 164. *i Talmage v. Pell, 9 Paige, 410. *2 White V. Buloid, supra. 4» White V. Buloid, supra; 2 Dan. Ch. Pr. 1553, and note 1; 1 Hoff. Ch. Pr. 353. ** Long V. Burton, 2 Atk. 218; Noel v. King, 3 Mad. 183. " IHoflf. Ch. Pr. 356. OEOSS BILL. 395 Evidence. — It has already been said that evidence in a cross- cause taken after close of proofs in the original bill, cannot be read at the hearing to any point upon which testimony had been taken in the latter.* « Depositions in the cross-suit to distinct matters, can of course be read ; and if no witnesses have been examined in the original suit, the testimony in the cross-suit can be used. So if no witnesses have been examined in the cross-suit, the depositions in the original suit may be read. But the point in issue must be the same in both cases.* '' The proper practice is to procure a preliminary order for reading in one cause, the pleadings and proofs in the other.** Parties. — If the interests and defense of all the defendants are the same against the complainant, they should all unite in the cross-bill. If the right is peculiar to one defendant, he alone becomes complainant ; and whether all the other original defendants are to be made parties with the original complainants must depend upon the question whether their rights or claims are questioned or varied by the cross-bill.*^ *« Field V. Schieffelin, 7 Johns. Ch. 252. *' 1 Hoff. Ch. Pr. 354; Wilford v. Beaseley, 3 Atk. 501. *« 1 Hofif. Ch. Pr. 354. In the U. S. Courts, the answer of the original plaintiff to a cross-bill may be read, and used by the party filing the cross-bill at the hearing, in the same manner as the answer praying relief may be used. — £f. Rule 72. *» 1 Hoff. Ch. Pr. 348 ; Erwin v. Cunningham, 1 Hopk. 54. CHAPTBE XXXVI. BILL TO PERPETUATE TESTIMONY. Section 1. When it May be Brought. 2. Frame of. 3. Defense to and Proceedings. SECTION I. WHEN IT MAT BE BEOUGHT. The sole object of a bill to perpetuate testimony is to assist other courts, and to preserve evidence to prevent future liti- gation when it is in danger of being lost before the matter to which it relates can be made the subject of judicial investiga- tion, i If therefore it be possible that the matter in controversy can be made the subject of immediate judicial investigation by the party who seeks to perpetuate the testimony, courts ot equity will not entertain such a bill.^ The complainant must have an interest in the subject mat- ter which may be endangered, or he cannot maintain the bill. But it must be an actual interest, however slight.* 1 Story's Eq PI. 3 300; 2 Story's Eq. Jur. 3 1505; 2 Black. Com. 450; 2 Dan. Ch. Pr. 1572, 1574. ' ^ 2 Story's Eq. Jur. 3 1508; Cooper's Eq. PI. 45-55; Baxter v. Farmer, 7 Ired. Eq. (N. C.) 239. ' Story's Eq. PI. g 301; Cooper's Eq. PI. 52; Story's Eq. Jur. g 1511; Allan V. Allan, 15 Ves. 135, 136. 396 BILL TO PEEPETUATE TESTIMONY. 397 On the other hand, it is equally necessary that the defend- ant claims an interest, to contest the title of the complainant on the subject matter of the proposed testimony.* Some ground of necessity for perpetuating the testimony must also be shown, as, that the party is in danger of losing his witness by sickness, age, or death, or by departure from the State.5 And generally it must appear that the facts to which the testimony of the witness proposed to be examined relates, can- not be immediately investigated in a court of law, or if they can, that the sole right of action belongs exclusively to the other party, or that said party has interposed some impediment to an immediate trial at law.® So, if an important fact is in the knowledge of but one or two witnesses, a bill of this nature lies.'' Bills of this sort are regarded with jealousy by the Court, and therefore the jurisdictional facts should be made clearly to appear.* SECTION II. FEAME OF. The bill must state all the material facts which are neces- sary to maintain jurisdiction. In the first place it must state the subject matter touching which the plaintiff is desirous of giving evidence.' In the * Story's Eq. PI. ? 302; Mitf. Eq. PI. 53; Cooper's Eq.PI. 56. 6 Story's Eq. PI. § 30b; Mitf. Eq. PI. 52, 148. « Story's Eq. PI. ? 303; Cooper's Eq. PI. 53. ' Mitf. Eq. PI. 150. 8 Mitf. Eq. PI. 149. 9 Story's Eq. PI. | 300; Mitf. Eq. PI. 51. 398 BILL TO PERPETUATE TESTIMONY. next place it should show that the complainant has some positive interest in the subject matter sufficient to entitle him to the aid of the Court. A mere expectation is not suffi- cient, i* The title of the complainant should also be clearly stated, and with all necessary and convenient certainty, as to the material facts, as to time, place, manner, etc.^ ' It is equally indispensable that the bill should state the title and interest which the defendant claims in the subject matter.' 2 It must also allege with sufficient particularity that there is some ground of necessity for perpetuating the evidence, or it will be demurrable.' ^ When the 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 case can be investigated in a court of law, it is proper, in order to avoid objection, unless it be sworn to, to annex to it an affidavit of the circumstances by which the evi- dence intended to be perpetuated is in danger of being lost.'* The prayer should be carefully framed. It should ask leave to examine witnesses touching the matter stated, to the end that their testimony may be preserved and perpetuated. It should also pray the proper process of subpoena, but it should not ask 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 of relief, and make it demurrable.' * Care should be taken not to mix up in the bill other mat- ters which may require very different decretal orders as to the i» Story's Eq. PI., ? 301; Cooper's Eq. PI. 52, 54; 2 Story's Eq. Jur., § 1511 ; Allan v. Allan, 15 Ves. 135-6. 11 Knight V. Knight, 4 Madd. 8, 10 ; Cooper's Eq. PI. 56 ; Story's Eq. PI. §? 244, 305. 1= Story's Eq. PI. ? 302; Milf. Eq. PI. 53; Cooper's Eq. PI. 56; Barton's suit in Eq. 74. ' » Mitf. Eq. PI. 52. 148 ; Cooper Eq. PI. 53, 55; Story's Eq. PI. 303. 1* Mitf. Eq. PI. 52, 53; Story's Eq. PI., § 304. " Cooper's Eq. PI. 52; Story's Eq. PI., g 305; Mitf. Eq. PI. 51. BILL TO PEKPETUATB TESTIMONY. 399 publication of the testimony, otherwise it ■will be demurr- able.! « SECTION III. DET'ENBES Ami PEOOEEDINGS. The defense to bills of this kind is the same as in other cases, by demurrer, plea or answer, according to the nature of the case.i^ As has been observed, a demurrer will seldom lie to a biU of this nature. But if on its face the bill shows that jurisdic- diction does not arise, a demurrer will hold, as when there is an absence of specific allegations of material facts, or when the bill prays relief.* * Ansioer. — ^An answer may be filed as in other cases. * ' Amending BiU. — When a bill seeks to perpetuate testi- mony, as well as to obtain relief,' the Court will frequently allow the complainant to amend his bill by striking out the relief, even after the testimony has been taken under it. 2" Dismissing BiU. — A bill to perpetuate testimony may be dis- missed for want of prosecution at any time before replication and examination. But after that time the proper application i« Story's Eq. PI., ? 305. For form of prayer, see Story's Eq. PI., ? 302, note 3. 1' 2 Barb. Ch. Pr. 143. 18 Mitf. Eq. PI. 149, 150, 151 ; Cooper's Eq. PI. 52; Story's Eq. PI., \ 306, " 1 Smith's Ch. Pr. 365. ' »" 2 Barb. Ch.Pr.l43. 400 BILL TO PERPETUATE TESTIMONY. is that complainant proceed to perfect the examination of his witnesses within a given time, or pay defendant's costs. ^* If the cause should be improperly brought to a hearing it will be dismissed. But the depositions taken may still be used as evidence.^ ^ Testimony. — A bill of this nature is never brought to a hearing. 2* The complainant compels the appearance and answer of the defendant, and the suit proceeds in the usual way by filing replication, and issuing a commission or sub- poena for the examination of witnesses.^* "When the witnesses have been examined, the cause is at an end. 2^ After the depositions are filed, it is necessary to obtain an order before they can be used, on proper showing. The order is obtained on motion ; of which notice must be given, sup- ported by evidence of the death of the witness, or that he is too ill or aged to attend at the trial. ^* Costs. — The defendant is entitled to costs on motion, imme- diately after the witnesses are examined, upon the simple alle- gation that he did not examine witnesses.^' Bills to perpetuate testimony are seldom resorted to at the present day. In Michigan, a summary method is provided, whereby any person who expects to be a party to a suit, to be thereafter commenced, in any court of record, may cause the testimony of any witness material to him in the prosecution or defence of such suit, to be taken conditionally and perpetu- ated.2 8 To justify such taking, the witness must live more than thirty miles from the place of trial, or shall be about to go out = ■ 2 Barb. Ch. Pr. 143. as Hall V. Hoddesdon, 2 P. Will. 162, 163. 2 3 Vaughan v. Fitzgerald, 1 Sch. & Lef.,316 ; 2 Dan. Ch. Pr. 1573. 2 4 1 Smith's Ch. Pr. 365; 2 Dan. Ch. Pr. 1573. " 2 Dan. Ch. Pr. 1574. 2« 1 Smith's Ch. Pr. 366; 2 Dan. Ch. Pr. 1574. '•> 2 Dan. Ch. Pr. 1574. »» 2 Comp. L. 1871, 5907. BILL TO PEEPETUATB TESTIMONT. 401 of the State, and not to return in time for the trial, or be so sick, infirm or aged as to make it probable that he will be unable to attend the trial. ^^ The deposition is to be taken and certified on the same notice and in the same manner as provided for in Chapter 188 of the Compiled Laws.* " »» 2 Comp. L. 1871, 5891. «» 2 Comp. L. 1871, ?? 5890-5908. CHAPTEE XXXVII. BILL TO EXAMINE "WITNESSES DE BENE ESSE. This class of bills bears a close analogy to bills to perpetuate testimony, and is often confounded with the latter. But it stands upon distinct considerations.^ Bills to perpetuate testimony can be maintained only when no present suit can be brought at law by the party seeking the aid of the Court. But bills to take testimony de bene esse are sustainable only in a:id of a suit already pending, and may be brought by a person who is in or out of possession, and whether he is com- plainant or defendant, in the action at law.^ The object of the bill is to take the testimony of witnesses for a trial at law in cases where the testimony may be other- wise lost.^ The bill should contain sworn allegations of all the material facts upon which the right to maintain it depends. Depositions taken de hene esse are valid only in the cause in which they are taken, and against those who are parties to it, and claiming through some or one of those whose interest has accrued since the bill was filed.* In other respects the general rules already stated in regard to bills to perpetuate testimony, are for the most part applica- ble to bills to take testimony, de bene esse.^ Bills of this nature are seldom filed in Michigan, as the testimony of witnesses may be taken de bene esse upon a sum- mary application under the statute.^ [See 'ante, p. 117.] » Story's Eq, PI. g 307; 2 Story's Eq. Jur. ? 1513; Cooper's Eq. PI. 57. » 2 Story's Eq. Jur. §1513; Cooper's Eq. PI. 57. » Cooper's Eq. PI. 57. ♦ 2 Barb. Ch. Pr. 146. 6 Story's Eq. PI. § 310. « 2 Comp. L. 1871, ? 5891. 402 CHAPTER XXXYIII. JUDGMENT OEEDITOES BILLS. Section 1. When May be Filed. 2. What May be Reached. 3. Parties. 4. Priority and Lien of Bills. 5. Receiver. SECTION L WHEN A CKEDITOE'S BILL MAY BE FILED. There are two classes of cases in whicli a judgment creditor may have relief. First ; In aid of his execution at law ; as to set aside an incumbrance, or a transfer of property made to defraud creditors. Second ; To have his judgment paid out of choses in action, or other property of the debtor not liable to execution. Relief is given in these two classes of cases on different principles. In the first class, on the ground of fraud, and in the other on the ground that the complainant has exhausted his remedy at law, and that it is inequitable and unjust for the debtor under such circumstances to refuse to apply any choses in action, or other property belonging to him, not lia- ble to execution, in payment of the judgment.(a) To entitle a party to the aid of this Court in the first class of cases an execution must have been issued, but it is not nec- (a) Williams t. Hobbard, Walk. Ch. 28; Beck v. Burdett. 1 Paige, 305, 403 404 JUDGMENT CKEDITOES BILLS. essary that it should have been returned ; (a) or if it has been, that a new execution has been taken out. A bill in aid of execution cannot be so drawn as to reach property that is not leviable if filed while the execution is still in force, and before it is returned.(6) The right to, come into this Court for relief in this class of cases is complete the moment an execution is issued. The fraudulent conveyance then works an injury to the creditor by hindering and delaying him in the collection of his judg- ment.(c) The bill must be filed after the levy, and before the sale.(d) It is not unusual for judgment creditors' bills to be so framed as to include the two classes of cases mentioned, (e) Judgment Creditors' Bills. — Judgment creditors' biUs, strictly so-called, have for their object the reaching of prop- erty not liable to execution, i Our statute is substantially that of New York. Whenever an execution against the property of a defend- ant has been issued on a judgment at law, and is returned unsatisfied, in whole or in part, the party suing out such exe- cntion may file a bill in Chancery against such defendant, and any other persons, to compel the discovery of any prop- erty or things in action, belonging to the defendant, and of any property, money, or things in action due to him, or held in trust for him ; and to prevent the transfer of any such prop- erty, money, or things in action, or the payment or delivery (a) Williams v. Hubbard, supra; Clarkson v. Depeyster, 3 Paige, 320; Mc- Elwain v. Willis, 9 Wend. 548. {b) McCuUough V. Day, 45 Mich. 554. [c) Williams V. Hubbard, supra; Thayer v. Swift, Harr. Ch. 430 ; Messmore V. Haggard, [Oct. Term, 1881.] 46 Mich. [d) Cransom v. Smith, [Oct. Term, 1881.] 47 Mich. [e) Williams v. Hubbard, supra ; McKibben v. Barton, 1 Mich. 213. Note, — Where debtor voluntarily conveys property for benefit of his family in fraud of creditors, see Pursell v. Armstrong, 37 Mich, 326, and cases cited; Mat- son v. Melchor, 42 'Id. 477; See Hedstrom v. Kingsbury, 40 Id. 636; Allen v. Antisdale, 38 Id. 229 ; Doak v. Runyan, 3 < Id. 75 ; 1st Nat. Bank of Kal. v. Mc- Allister, [June Term, 1881] ; Hyde v. Powell, [Oct. Term, 1881] ; Pulter v. Cil- ler, [Jan'y Term, 1882], 47 Mich. 1 2 Hoff. Ch. Pr. 113; 2 Waite's Actions and Defences, p. 411; Barry v. Abbot, 100 Mass. 396; Whitney v. Robbins, 17 N.J. Eq. 360. JUDGMENT CEEDITOES BILLS. 405 thereof to the defendant, except where such trust has been created by, or the fund so held in trust has proceeded from some person, other than the defendant.^ Under the statute the Court has power to compel such dis- covery, and to prevent such transfer, payment, or delivery, and to decree satisfaction of the amount remaining due on such judgment out of any property, money, or things in action belonging to the defendant, or held in trust for him, with the exception above stated, which may be discovered by the proceedings in Chancery, whether the same weref originally liable to be taken in execution at law, or not.^ The act does not apply to property exempt from execution.* A judgment creditor only can inquire into the transmuta- tion of his debtor's assets ; and then he can only reach those equitably belonging to his debtor.^ Where a man while solvent makes provision for his wife, that is not extravagant in view of existing circumstances, and does so in good faith, and not in anticipation of reverses, it cannot be set aside on a bUl in aid of execution for a debt incurred afterwards." Where a judgment creditor's bill is filed, to set aside volun- tary conveyances, made by a man to his wife, long before he » 2 Comp. L. 1871, ? 5060. ' This section would seem to apply to personal property ; 2 Hoff. Ch. Pr. 113. * 2 Comp. L. 1871, § 5061. ^ Tawas & Bay Co. Railroad Company, v. Circuit Judge, 44 Mich. 479. Note.— The aforesaid sections 5060, 5061, were repealed in 1851,(a) and supplementary legal proceedings substituted. In 1855 the said sections were restored.(3) Jwu*?^T' '°, '"''^'•'"te proceedings at law in lieu of a bill in Chancery to reach both legal and equitable assets of judgment creditors, has practically failed, as the nghts of third persons could only be adjudicated upon by making them parties to the proceedings, and which is not provided for. the ?o"cefdTT^ ^""^ ^^^^' °° ^^^^"^^^ occasions, alluded to the inadequacy of W Laws of 1851,, p.' ,16, 2 Comp. L. 1871, % 6528. (S) Laws of 1855, p. 270 ; 2 Comp. L. 1871, % 6529. Laws 1875, 226. (c) Ehlers v. Stoeckle, 37 Mich. 261 ; Reed v. Baker, 42 Id. 272. fi M;1^4°^ft" ^ Vandermeulen, 44 Mich. 522. And see Herschfeldt v. George, 6 Mich. 456 ; Keeler v. UUnch, 32 Id. 88. 406 JUDGMENT CEEDITOKS BILLS. became indebted to complainant, the latter must show that they were made with intent to defraud either existing or sub- sequent creditors." Jurisdiction. — The jurisdiction of a Court of Equity to apply the property of a defendant, which is beyond the reach of an execution at law, to the satisfaction of the debt due to the iudgment creditor, rests upon the ground that the remedy at law is exhausted.* There must, therefore, be a valid judgment and execution sued out thereon, and a return of the same unsatisfied in whole or in part.^ The remedy at law, however, is not exhausted until an exe- cution has been issued and returned unsatisfied, in whole or in part.^" The reason being that a judgment debtor shall not be -harassed with a suit in Chancery until the creditor has availed himself of all his common law right to collect his judg- ment.^i The remedy at law also must have been exhausted in good faith before the filing of a bill. Therefore where the return to an execution is collusive, or is made before the return day, or where property was known and could have been reached by levy, the bill cannot be sustained. ^ ^ But a return of the execution on the return day is good." None but judgment creditors who have exhausted their legal remedy are entitled to file a bill to reach equitable inter- ests in property upon which they have no lien.i* ' Brown v. Vandermeulen, supra ; Herschfeldt v. George, supra ; Keeler v. Ullrich, supra. 6 Steward v. Stevens, Harr. Ch. 169 ; Thayer v. Swift, lb. 430. » Smith V. Thompson, Walk. Ch. 1 ; Millar v. Babcock, 29 Mich. 526. i» Thayer v. Swift, Harr. Ch. 432. 1 1 Thayer v. Swift, supra. i» Smith V. Thompson, Walk. Ch. 1 ; Williams v. Hubbard, lb. 28; Free- man V. Mich. State Bank, lb. 62; Wharton v. Fitch, lb. 143; Beach v. White, lb 495 ; Thayer v. Swift, Harr. Ch. 430 ; Stafford v. Hulbert, lb. 435 ; Eldred V. Camp. lb. 162; Steward v. Stevens, lb. 169; But see McKibben v. Barton, 1 Mich. 213. 18 Williams v. Hubbard, 1 Mich. 446; Kellogg v. Hamilton, 43 Id. 269. 1* Maynardv.Hoskins,9Mich.485; Tyler v, Peatt, 30 Id. 63. JUDGMENT CEEDITOES BILLS. 407 A return of an execution unsatisfied, by direction of the party suing it out is not sufficient.!* The bill should show the county in which a party defend- ant resides, or where he conducts his business, and the execu- tion should usually be issued to the county where the debtor resides ; but where he has property in another county and offers it to complainant to be levied upon, the first execution may be returned before the return day, and an alias issued to the county where the property is.^* While the due return of an execution is necessary to sus- tain a judgment creditor's biU, yet if the biU asks to have certain conveyances set aside as fraudulent, it may be sustained for that purpose.! '^ The bill must also be filed within a reasonable time after the return of the execution. '* But the issue of a new execu- tion will not deprive the party of his right. ^ ^ The remedy by creditor's bill being a harsh one, will not be granted unless the creditor shows a strict and rigid compli- ance with the rules and forms of law.^" The amount of the judgment, and the amount of the defendant's property, as claimed by the complainant, must each exceed one hundred dollars, to give jurisdiction.^ ' But if the joint debtors collectively have property exceeding the sum of one hundred dollars, it is sufficient. ^^ BesulUng Trusts. — Lands which a judgment debtor has pur- chased since 1846, and caused to be conveyed by the vendor 1 5 Williams v. Hubbard, Walk. Ch. 28 ; Wharton v. Fitch, lb. 143. ' « Freeman v. Mich. State Bank, Walk. Ch. 62; Albany City Bank v. Dorr, lb. .S17 ; Preston v. Wilcox, 38 Mich. 578. As to copyright : Dart v. Woodhouse, 40 Mich. 401. 1' Beachv. White, Walk. Ch. 495. As to necessary allegations in such a bill see Rhead v. Hounson, [June Term, 1881.] 46 Mich. " Gould V. Tryon, Walk. Ch. 353. 1 » Clark T. Davis, Harr. Ch. 227. "> Thayer V. Swift, Harr. Ch, 430; Tyler v. Peatt, 30 Mich. 62; Preston v, Wilcox, 38 Id. 578. " Smets V.Williams, 4 Paige, 366. • » 2 Hoffi Ch. Pr. 121 ; Van Qeef v. Sickles, 5 Paige, 506. 408 JUDGMENT CEEDITOES BILLS. directly to a third person to defraud his creditors, are not sub- ject to levy and sale on execution. No trust in such case results to the debtor, as the legal title vests in the grantee, and the trust in favor of creditors can only be reached by a judg- ment creditor's bill after an execution has been taken out and returned unsatisfied. ^^ When the person taking a conveyance in his own name, does so in fraud of the rights of the person paying the consid- eration, or without his consent, then the statute does not apply, and a trust results to the person furnishing the purchase price. ^* SECTION II. "WHAT MAY BE BEACHED. TJpon a creditor's bill every species of property belonging to a debtor may be reached and applied to the satisfaction of his debts; and his debts, choses in action, and other equitable rights may be assigned or sold under the decree of the Court for that purpose. 2 ^ A judgment creditor is entitled to crops grown upon the land of his debtor after it has been transferred in fraud of his rights, so far at least as the fraudulent grantor retains an inter- est in them by an understanding with the grantee, and where 2 8 2 Comp. L. 1871, ?? 4120, 4121; Maynard v. Hoskins, 9 Mich. 485 ; Trask v. Green, lb, 858 ; Weare v. Linnell, 29 Id. 224; Hooker v. Axford, 33 Id. 454; Brown V. Bronson, 35Id. 415; Harwood v. Underwood, 28 Id. 431, and cases cited ; And see Ready V. Kearsley, 14 Mich. 216; Jackson v. Cleaveland, 15 Id. 94; Russell V. Miller, 26 Id. 3; Munch v. Shabel, 37 Id. 167; Palmer v. Sterling, 41 Id. 221 ; Also see Groesbeck v. Seeley, 13 Mich. 329, annolated edition, with full note on the subject. 21 2 Comp. L.1871, 4122; Fisher v. Fobes, 22 Mich. 454; Linsley v. Sin- clair, 24 Id. 380,304; Tyler v. Peatt, 30 Id. 63; Ransom v. Ransom, 31 Id. 301; And see Waterman v. Seeley, 28 Mich. 77. ^6 Brewster V. Power, 10 Paige, 562 ; Benson v. Le Roy, 4 Johns. Ch. 651; Weed V.Pierce, 9 Cow. 722; Eameston v. Lyde, 1 Paige, 637; See Griswold v. Fuller, 33 Mich. 273. JUDGMENT CEEDITOES BILLS. 409 there is reason to suppose there is such collusion, all doubts should be solved in the creditor's favor. ^^ The complainant can only reach the property which belonged to the defendant at the time of the commencement of the suit, or the proceeds of the property and effects in which he then had an interest. If he wishes to reach after acquired property, he must file a supplemental bill.^ ^ SECTION III. PAETIBS. The judgment creditor may file a bill either in his own name, and for his own benefit, or he may join with other cred- itors standing in the same situation with himself, or he may file a bill in behalf of himself, and all others, being judgment creditors, whose executions have been returned unsatisfied, and who may choose to come in and contribute to the expenses of the suit.^* But a creditor cannot sue on behalf of himself and others who have no common interest with him.^^ In general, all the parties against whom the judgment is recovered, should be made parties defendants to the bill.*" But if the insolvency of some of them is distinctly stated in the bill, they may be omitted.* ' Also those defendants who are charged with having equitable assets to be reached. *2 '« Fury V. Strohecker, 44 Mich. 337, 2' 2 Hoff. Ch. Pr. 114; 2 Barb. Ch. Pr. 154. "0 Barbour on Parties, 383 to 392 ; 2 Hoff. Ch. Pr. 120 ; Eameston v. Lyde, 1 Paige, 637 ; Wakeman v. Grover, 4 Paige, 23 ; Lentilhon v. Moffat., 1 Edw. 451; 2 Waite's Actions, 420. » Barbour on Parties, 383. »" Asio Corporations, see Pettibone v. McGraw, 6 Mich. 441. " 2 Hoff. Ch. Pr. 120"; Van Cleef v. Sickles, 5 Paige, 506 ; Williams v. Hub- bard, 1 Mich. 451. •* Williams v. Hubbard, supra. 52 410 JUDGMENT CEEDITOES BIULS. WTienever a bill shall be filed in Chancery for relief, or for the benefit of the creditors generally, of any person, or of -any estate, or for the benefit of any other persons than the com- plainants, who will come in and contribute to the expense of such suit, every order which may be made thereon requiring such creditors, or other persons to exhibit their demands, shall in all cases be published once in each week for at least three weeks, and as much longer as the Court may direct, in any newspaper which the Court may designate.^* If the debtor has conveyed different poitions of his prop- erty to different persons in fraud -of his creditors, all the grantees may be united in one bill with the grantor. 2* The assignor of a judgment, or chose in action, on which a judgment has been obtained in the name of the assignor, is not a necessary party to a judgment creditor's bill filed by the assignee ; but if there be a controversy between the assignor and the assignee, the Court will direct the assignor to be made a party.* ^ Where a judgment creditor assigns his demand on which judgment was rendered, to secure a debt of equal amount, the assignee, or those succeeding to his right, must bring the bill.' ^ Chancery Eule 102 requires that where a creditor by judg- ment or decree files a bill in this court against his debtor to obtain satisfaction out of the equitable interests, things in action, or other property of the latter, after the return of an execution unsatisfied, he must state in such bill, either posi- tively or according to his belief, the true sum actually and equitably due on such judgment or decree, over and above all just claims of the defendant, by way of offset or otherwise. He must also state that he knows, or has reason to believe, the defendant has equitable interests, things in action, or other property exceeding one hundred dollars in value, exclusive of »5 2 Comp. L. 1871, § 5115. »* Fellows V. Fellows, 4 Cow. 682. »5 Morey V. Forsyth, Walk. Ch 445; Beach v. White, lb. 495. •« Andrews v. Kibbee, 12 Mich. 94, JUDGMENT CEEDITOES BILLS. 411 all prior claims thereon, which the complainant has been unable to discover and reach by execution on such judgment or decree. The bill must likewise contain an allegation that the same is not exhibited by collusion with the defendant, or for the purpose of protecting the property or effects of the debtor against the claims of other creditors ; but for the sole purpose of compelling payment and satisfaction of the complainant's own debt.*'' Oath.— Eyery such creditor's bill must be verified by the oath of the complainant, or in case of his absence from the State, or other sufacient cause shown, by the oath of his agent or attorney.*' Amendments,— Buch bills may be amended of course in the game manner as bills not sworn to, if the amendments are merely in addition to, and not inconsistent with, what is con- tained in the original bill. But all such amendments must be verified by oath in the same manner as the bill is required to be verified.* ^ On a creditor's bill the regularity of the judgment and exe- cution cannot be inquired into.* " The return of an execution unsatisfied is conclusive between the parties to a judgment creditor's bill, when the return is good on its face, and has not been made by collusion between the creditor and the, officer, or by direction of the creditor.*' Creditors only can take advantage of a fraudulent assign- ment of a debt.* 2 «' Clark V. Davis, Harr. Ch. 227 ; Ch. Rule 102. " tnere oath is made by the Sol. of Record, the Court will take notice of it. Bergh v. Poupard, Walk. Ch. 5. " Ch. Rule 103. " Williams v. Hubbard, 1 Mich. 446 and note; 2 Hoff. Ch- Pr. 120; Hone V. Woolsey, 2 Edw. 289 ; Scott v Ind. Wagon Works, 48 Ind. 75. *l Albany City Bank v. Dorr, Walk. Ch. 317 ; Sanford v. Sinclair, 8 Paige, 373. *2 Morey v. Forsyth, Walk. Ch. 465. As to extent of relief in case of fraudulent conveyance, see Robinson v. Boyd, 412 JDBGMENT CEEDITOES BILLS. Death. — The death of a defendant before answer, or the appointment of a receiver, creates no lien upon the debtor's property.** Priority and Men.- — The creditor who files the first bill, and makes service of process, obtains a priority as to the equitable interest belonging to the defendant at the time of filing the bill,** and thereby obtains a lien upon the debtor's property by placing it under the control of the court.* ^ All the title the defendant has or can pass is subject to that Uen.** But this lien does not apply to personal property, subject to execution, which a judgment creditor has levied on prior to the appointment of a receiver.*^ Fraudulent Conveyances. — A creditor's bill, and not a bill in aid of an execution, is necessary to reach the trust resulting to creditors in land bought with a debtor's money, in the name of a third person, as that interest is not subject to execu- tion.** When a creditor's bill seeks to set aside a fraudulent con- veyance of real estate, made by a debtor to a third person, a lien must first be obtained by a levy of hi^ execution,*' in which case it is not necessary to exhaust the legal remedy by having the execution returned unsatisfied.'* Where a creditor seeks to reach property alleged to have been purchased with the money of his debtor, and fraudu- *« Jones V. Smith, Walk. Ch. 115. *i 2 Hoff. Ch. Pr. 114, 115; Griswoldv. Fuller, 33 Mich. 268; Burrell v. Leslie, 6 Paige, 446 ; Coming v. White, 2 Id. 568 ; Eager v. Price, lb. 337 ; Brown v. Nichols, 42 N. Y. 26; Lynch v. Johnson, 48 Id. 27, 33. *6 Storm V. Waddell, 2 Sandf. Ch. 494; Jeffresv. Cochrane, 47 Barb. 557. 4 « 'Roberts v. Albany R. R. Co., 25 Barb. 662. *' Davenport v. Kelly, 42 N. Y. 193; Norton v. Whiting; 1 Paige, 578; Eameston v. Riddle, lb. 637. *8 Trask v. Green, 9 Mich. 358; Maynard v. Hoskins, lb. 485 ; Bimce v. Bailey. 39 Id. 192. And see How v. Camp. Walk. Ch. 427; Cutter v. Griswold, lb. 437 ; Wood v. Savage, lb. 471. "'McKibben V.Barton, 1 Mich. 212; Fox v. Willis, lb. 322; Eslow v. Mitchell, 26 Id. 500 ; Glynn v. Phetteplace, lb. 383 ; Millar v. Babcock, 29. Id. 526. " » 2 Waite's Actions 416. JUDGMENT CEEDITOES BILLS. 413 lently conveyed to his wife, the bill must positively allege that the debt existed at the time of the conveyance, or that the pur- chase money was paid by him, and the deed made to the wife for the express purpose of delaying or defrauding creditors, or for the purpose of defrauding /wiwre creditors.® ' A person who takes title from an insolvent debtor merely for the purpose of defrauding creditors, and disposes of it on credit, is liable to them for its value, whether he succeeds or not in collecting the purchase money.® ^ In Aid of JExecvMon. — As before mentioned a judgment creditor's bill may be filed for the double purpose of aiding an execution and reaching property not subject to execution ; but in the former case while an execution must have been issued, it is not necessary that it should have been returned before filing a bill.®* Form of BUI. — A judgment creditor's bill should state the recovery of the judgment on which it is founded, its date, the nature of the action, the parties, the amount, and in what court it was rendered.®* It should also state the issuing of the execution, its amount and the delivery to the sheriff, and that it was issued to the county ia which the defendant resided when it issued, or state the reason why.®® Also, when returnable, when actually returned, and whether satisfied in whole or in part.®* A bill filed in aid of an execution to set aside a deed need not allege the defendant's insolvency, or that he had not suffi- cient personal property in the county to pay the judgment, or " Robinson v. Boyd, 17 Mich. 128 ; see Fellows v. Smith, 40 Id. 689. " Hopson V. Payne, 7 Mich. 334 ; Keeler v. Ullrich, 32 Id. 88 ; Bodine v. Simmons, 38 Id. 682. " Williams v. Hubbard, Walk. Ch. 28. ; Clark v. Davis, Harr. Ch. 227; Hedstrom v. Kingsbury, 40 Mich. 636 ; Matson v. Melchor, 42 Id. 477. ^* Casssidy v. Meacham, 3 Paige, 311. " Reed v. Wheaton, 7 Paige, 663; Smith v. Fitch, 1 Clarke 265; Wil bur V. ColUer, lb. 315 ; Williams v. Hogeboom, 8 Paige, 469. ''' Cassidy V. Meacham, supra. 414 JUDGMENT OEEDITOES BILLS. that the officer holding the execution made an effort to find it. (a) The bill should also state that the defendant has assets, etc., exceeding in value the sum of one hundred dollars. If any of the judgment debtors are insolvent, and for that reason are not made parties, the biU should so state the feet. Appointment of Receiver. — In suit by judgment creditor's bill, in case the defendant has been duly served with process, and he is in default for want of answer, the complainant will be entitled to the like orders and proceedings in regard to receivers, as he would be in case he should take the bill as confessed by the defendant.^' The debtor against whom a creditor's bill is filed, will 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 sub- poena, and shall, within the time allowed for an answer, deliver to the complainant, or his solicitor, 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, in conformity to rule 104. Upon presenting such written consent to the Court, the complainant may have a special order, founded thereon, direct- ing 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 will also direct the defendant to assign, transfer and deliver over to the receiver, on oath, under the direction of the Commissioner, all his property, equitable interests, and in action, and effects ; and that he appear before the Commis- sioner, from time to time, and produce such books and papers, (o) Rhead v. Hounson (June Term, 1881), 46 Mich. Note. — As to the form and requisites of a creditor's bill, &«Cassidyv. Mea- cham, 3 Paige, 311 ; Conantv. Sparks. 3 Edw. Ch. 104; Mitchell v. Byrns, 67 111. 522; Hamlen v. McGillicuddy, 62 Maine, 268. " Ch. Rule 104; 2Comp. L.1871, §g 5070-71. JUDGMENT CEEDITOES BILLS. 415 and submit to such examination 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. The expense of taking down such examination by the Com- missioner, will be paid by the complainant, in the first instance, and may be taxed and allowed to the latter as a part of his necessary costs in the suit. The complainant will also be at liberty to examine witnesses before the Commissioner as to the property of the defendant, or as to any other matter c'jarged in the bill, and not admitted by the defendant on such examination. He must also cause a written or printed copy of Eule 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 answer on oath is required ; or such defendant will not be answerable to the complainant for the costs of the proceedings to compel an appearance and answer.^' The examination of the defendant under the foregoing rule, extends to any matter which he would be required to disclose by answer. The order also authorizes the examination of wit- nesses on any matter charged in the bill and not admitted on the examination.^* Powers of Receiver. — Every receiver of the property and effects of the debtor, appointed in a suit upon a creditor's bill, shall, unless restricted by the special order of the Court or Circuit Court Commissioner, have general power and authority to sue for and collect all the debts, demands and rents belong- ing to such debtor, and to compromise and settle such as are unsafe and of a doubtful character. He may also sue in the name of the debtor, where it is necessary or proper for him to do so, and he may apply for and obtain an order of course that the tenants of any real estate belonging to the debtor, or of which he is entitled to »• Ch. Rule 105. i>» Howard v. Palmer, Walk. Ch. 391. 416 JUDGMENT CEEDITOES BILLS. the rents and profits, attorn to such receiver, and pay their rents to him. He will also be permitted to make leases from time to time, as may be necessary, for terms not exceeding one year. It is his duty, without unreasonable delay, to convert all the personal estate and effects into money ; but he must 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 poUect his costs, unless such suit is brought by order of the Court, or by the consent of all persons interested in the fands 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.** Wliere several bills are filed by different creditors against the same debtor, no more than one receiver of his property and effects will be appointed, unless the first appointment has been obtained by fraud or collusion, or unless the receiver is an improper person to execute the trust. The receiver will give security sufficient to cover the whole property and effects of the debtor, which may come in his hands by virtue of his office; and he must hold such property and effects for the benefit of all creditors who have commenced or shall commence similar suits during the con- tinuance of his trust, to be disposed of according to their legal or equitable priorities. He must 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 will 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 upon notice of the application.* ^ «» Ch. Rule 106. «i Ch. Rule 107. ■ JtTDGMENT CEEDITOES BILLS. 417 When another suit is commenced after the appointment of a receiver, the same person may be appointed receiver of such subsequent suit, and will give such further security as the Court shall direct. He 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 appointment in the last cause. '2 • Effect of Injunction. — 'So injunction issued upon any such creditor's bill shall be construed to prevent the debtor from receiving and applying the proceeds of his subsequent earn- ings 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 this Court, made in any other cause to assign and deliver his property and effects to a receiver ; or to restrain him from making the necessary assignment to obtain his dis charge under the insolvent laws, unless an express provision to that effect is contained in the injunction,^* «» Ch. Rule 108. «» Ch. Rule 109. As to power of Supreme Court over subject mailer of suit on dismissal of bill, see Brown v. Vandermeuler, 44 Mich. 522. As to the practice on fttdgment Creditors Bills in V. S. Courts, see U. S. Circt. Ct. Rules 5 to 12 Incl. CHAPTBE XXXIX. BILLS TO FOEECLOSB MOEIJJAGES. Section 1. Nature of and when Proper. 2. Parties. 3. Frame of Bill. 4. Proceedings. 5. Hearing and Decree. 6. Execution for Deficiency. SECTION I. NATURE OF AND WHEN PEOPEE. A foreclosure in equity is a proceeding to bar and foreclose the mortgagor's right of redemption in the mortgaged premises. Whenever the condition of a mortgage becomes broken, the mortgagee has the right to file a bill in equity to compel the mortgagor to redeem his estate within the statutory time, or be forever barred. The right which he retains after breach of condition is called the equity of redemption. There are two general methods of foreclosing an equity of redemption by bill in equity. First : A strict foreclosure, whereby a decree is obtained for the payment of the mortgage debt within a short period, or that in default thereof, the mort- gagee may be adjudged the absolute owner of the property. Second: The other mode is by a sale of the property under the directions of an officer of the Court, and the proceeds applied to the discharge of the encumbrances, according to priority, and the surplus, if any, paid over to the mortgagor.^ 1 Puterbaugh Ch. Pr. 370; 2 Hoff, Ch. Pr. 149. 418 BILLS TO FORECLOSE MORTGAGES. 419 ' Our statute provides that whenever a bill shall be filed for the foreclosure or satisfaction of a mortgage, the Court shall have power to decree a sale of the mortgaged premises, or such part thereof as may be sufficient to discharge the amount due on the mortgage, and the costs of suit ; but the Circuit Judge shall not by such decree order any lands to be sold within one year after the filing of the bill of foreclosure. ^ In D. F. & M. Ins. Co. v. Bene, the subpoena did not issue until six months after the filing of the bill. The case was heard on pleadings and proof, and a decree was made ordering a sale " at any time after July 18, 1875." The sale was made July 29 following. On appeal from an order confirming the sale, the Court held that, whether an interval of a year was requisite, under the foregoing statute, in all cases between the service of subpwna and the sale, it had the discretion at least to postpone the sale until the expiration of a year from the ser- Adce of subpoena, and that such discretion should have been exercised in said case.^ In the October term of the Supreme Court [1878] a new rule was made, providing that from and after January 1, 1879, foreclosure sales should not be ordered on less than six full weeks, or forty-two days' notice, and that publication must not commence until the time fixed by decree for payment had expired, nor within a year after the commencement of suit.* In (Mver v. McKeoim,^. the Court in giving construction to the foregoing rule, said that the one year and six weeks that must elapse before the sale might be computed from the date of talcing ovi the svbpcena, if done with the intention, in good faith, of making service as soon as possible, and there was no laches in obtaining such service. ' 2 Comp. L. 1871, ? 5147. « 33 Mich. 298. * Ch. Rule 92, as amended. " 43 Mich. 322. ^J^ect of defective notice on right to redeem, see Comstock v. Howard.'Walk Ch. 110 ; State Bank v. Chapelle, 40 Mich. 453. 420 BILLS TO FOEECLOSE MORTGAGES. In the foregoing case the bill was filed November 9, 1878, subpoena issued the same day, and was served at once upon one of the defendants An alias was issued December 30, 1878, against the other, and service made the next day. After default by both defendants, the land was duly advertised November 18, 1879, and sold January 2, 1880. The Court declined to set aside the sale. It is the practice in this State on foreclosure to allow a reasonable time for the payment of money definitely fixed by the decree.® Only the legal holder of a mortgage can foreclose it at law. 'And he can do so for the benefit of any one interested ; and the legal owner of the debt is the legal holder of the mort- gage.'' No proceeding whatever can be had at law for the recovery of the debt secured by the mortgage, or any part thereof, after the bill is filed while it is pending, unless it is authorized by the Court. ^ This discretion will not be exercised except in unusual cases. ^ The commencement of a suit at law on the bond or note accompanying the mortgage, will not prevent the filing of a bill of foreclosure, unless a judgment has been obtained in that suit. But if after commencing such suit the mortgagee files a bill of foreclosure, he will not be permitted to proceed in the suit at law without authority from the Court.'" The pending of foreclosure proceedings in Chancery is no defense upon the merits to an action at law; but as the legal action is forbidden, unless by leave of a Court of Equity, the proper practice is to move the Court before going to trial for a stay of proceedings. ' ' • Detroit S. Bank v. Truesdail, 38 Mich. 430. » Lee V. Clary, 38 Mich. 223. 8 2 Comp. L. 1871, § 5149; Joslin v. Millspaugh, 27 Mich. 517; Innes v. Stewart, 36 Id. 285; Goodrich v. White, 39 ia.489. As to compelling election, see Granger v. Wayne Circuit, 27 Mich. 406. • Suydam v. Bartle, 9 Paige, 294. ' » Engle V. Underhil), 3 Edw. 251 ; Suydam v. Bartle, supra. " Goodrich v. White, 39 Mich. 489 ; Joslin v. Millspaugh, 27 Id, 517. BILLS TO FOEECLOSE MOETGAGES. 421 If it appear that any judgment has been oDiairred in a suit at law for the money, or any part thereof, secured by the mortgage, no proceedings can be had upon the bill until an execution upon such judgment has been returned unsatisfied, in whole or in part, and the sheriff has returned that the defendant has no property whereof to satisfy the execution, except the mortgaged premises. ' ^ The bill must show that the complainant has exhausted his remedy upon the judgment, or it will be demurrable, i^ Where the bill shows that a judgment has been recovered for the mortgage debt, a decree for foreclosure will not be made until the return of an execution unsatisfied, even though the bill has been taken as confessed. ' * A bill of foreclosure may be filed after the commencement of a suit at law on a bond before judgment obtained therein without a previous discontinuance of such suit. The object of the statute was not to require a discontinuance of the suit at law, but merely to suspend all further proceedings in such suit until it could be determined whether the mortgage would be satisfied in the foreclosure suit.* ^ Where several distinct payments are secured by one mort- gage, neither has preference over the rest in consequence of its falling due sooner, but all have equal claims to be paid ratably out of the land.i « But the assignor may give priority of pay- m,ent, or he may stipulate that no interest in the mortgage shall pass.1' And the fact that an assignment is taken as security »» 2 Comp. L. 1871, ? 5152; Dennis v. Hemingway, Walk. Ch. 387; Coo- per V. Bresler, 9 Mich. 534. As to security by deed, see Maynard v. Pereault, 30 Id. 160; Pattison v. Powers, 4 Paige, 550. »8 Shufelt V. Shufelt, 9 Paige, 137. " Shufelt V. Shufelt, supra. ' s Williamson v. Champlin, 8 Paige, 70. " Cooper V. Ulmann, Walk. Ch. 251; Wilcox v. Allen, 36 Mich. 161 ; Mc- Curdy V. Clark, 27 Id. 445 ; English v. Carney, 25 Id. 178 ; Brown v. Thompson, ^9 Id. 72; Van Aken v. Gleason, 34 Id. 477; Miles v. Skinner, 42 Id. 181 ; Bridgman v. Johnson, 44 Id. 491 ; 3 Lead. Cas. in Eq. 646-7 ; Cage v. Her, 13 Miss. 410. " Cooper V. Ulman,, supra; Donley v. Hays, 17 Sergt. & Rawle, 400: Ueen v. Hart, 1 Johns. 580; Pattison v. Hull, 9 Cow. 747. 422 BILLS TO FOEECLOSE MOETGAOES. only affects the amount of the decree, and not the right to maintain the bill.^' "Where one of several notes secured by the mortgage is endorsed, the endorser will only be liable for his proportionate share of any deficiency that may remain after the sale.** But should the mortgagee bid off the premises on foreclos- ure for an installment due, and afterwards sell the land by warranty deed, the mortgage will be discharged, and the indor- sers of notes secured by subsequent installments will be released. 2" One who holds several mortgages to secure a single debt, may foreclose either of them at his option, separately, until his debt is satisfied. 21 A defendant to a foreclosure suit having a residuary inter- est in the mortgage foreclosed, may file a bill to obtain the benefit of the decree sought, and to foreclose the mortgage against other defendants who have been made parties to the firstsuit.2 2 "Wiere interest is made payable annually, a foreclosure bill lies when such interest is in arrears, without regard to the time when the principal falls due.^* I^ectment. — Actions of ejectment cannot be maintained by a mortgagee or his assigns, or representatives, for the recovery of the mortgaged premises until the title thereto becomes abso- lute by foreclosure. 2* »« McKinney v. Miller, 19 Mich. 143. 19 English V. Carney, 25 Mich. 178. '" Bridgman v. Johnson, 44 Mich. 491. »i McKinney v. Miller, 19 Mich. 143. »s Griggs V. D. & M. R. R., 10 Mich. 117. » ' Dederick v. Barber, 44 Mich. 19. 9* 2 Comp. L. 1871, ? 6263; Newton v McKay, 30 Mich. 380 ; Beecher v. M. & P. R. M. Co., 40 Id. 307; And see Caruthers v. Humphrey, 12 Id. 270; Crippen v. Morrison, 13 Id. 23 ; Newton v. Sly, 15 Id. 391 ; Hogsett v. Ellis, 17 Id. 351 ; Hazeltine v. Granger, 44 Id. 503 ; Wagar v. Stone, 36 Id. 364. BILLS TO FOKECLOSE MOETGAGES. 42S Prior to the statute of 1843, [Laws of 1843, p. 139], the mortgagee of lands had the right of possession at any time after default made in the payment of the mortgage money. ^^ Since the adoption of said statute the mortgagor is entitled to the possession until the equity is barred by foreclosure, and may recover it back if ousted. ^6 And such possession is by right, and not by sufferance; and the mortgagor may make such arrangements for the use of the property as any other person could during his term.^'' Beceiver. — Prom this it follows that it is not competent to appoint a receiver in foreclosure proceedings, the principle being that the mortgage binds only the lands. The rents or profits thereof do not enter into or form any part of the secu- rity. 2* In Beecher v. M. & P. Boiling Mill Cb. ^ ^ the mortgage contained a clause which gave the mortgagee the right on default, to take possession of and operate certain mines which it covered. After questioning the power of the parties to make such an agreement, and in view of the provisions of the statute, to ask the Court to aid them in executing it, the Court say that it could not be carried into effect until after default, and even then it would be a matter of discretion. A mortgage is no longer in this State what it was originally at common law, a grant of the land to the mortgagee, defeasi- ble upon condition subsequent, and to become absolute on failure to pay at the specified day. It conveys no title, legal or equitable, to the mo^gagee, and gives no right of possession 25 Stevens v. Brown, Walk. Ch. 41; Mundy v. Monroe, 1 Mich. 68; Blackwood v. Van Vleet, 11 Id. 252; Wetherbee v. Green, 22 Id. 311; Hoffinan V. Harrington, 33 Id. 392; Todd v. Davis, 32 Id. 160. 2« Baker v. Pierson, 5 Mich. 456; Newton v. Sly, 15 Mich. 391; Humph- rey V. Hurd, 29 Id. 44 ; Wagar v. Stone, 36 Id. 364; Lee v. Claiy, 38 Id. 223. * ' Crippen v. Morrison, 13 Mich. 24. '8 Wagar v. Stone, 36 Mich. 365, 367; Brown v. Chase, Walk. Ch. 43, (prior to 1843.) " 40 Mich. 308; Hazeltine v. Granger, 44 Id.;505 ; And see Batty v. Snook, 5 Id. 231; Brown v. Chase, Walk. Ch. 43. Tkis decision was made prior to the Act 0/184.3. 424 BILLS TO FOEECLOSE MORTGAGES. ■without foreclosure.^ " It is a mere security for the debt, and the mortgage but an incident thereto. Anything which transfers the debt, transfers the mortgage with it. An assignment of the mortgage without the debt, is a nullity, and anything which extinguishes the debt, ipse facto, extinguishes the mortgage.*^ But such assignment would not authorize a foreclosure, except in equity, as the statute requires an assignment of the mortgage to be recorded.* ^ A conyeyance of all of one's right and title in land will pass the grantor's interest in a mortgage on the same.'* A full assignment of a mortgage, with the usual powers and covenants, transfers all collateral right.** But the collat- erals should be delivered at the same time, as their non-delivery puts the purchaser upon inquiry as to their owner.* ^ An equitable assignee of a debt secured by mortgage is entitled to the mortgage.** Assignees usually take subject to all equities betw'een the mortgagor and mortgagee, arising out of the mortgage.^'' But where the security assigned is negotiable paper, held by a bona fide owner, the equities do not follow it, as where a note secured by a mortgage is assigned before maturity.** so Ladue v. D. & M. R. R., 13 Mich. 394, and cases cited; Caruthers v. Humphrey 12 Id. 270; Hogsett v. Ellis, 17 Mich. 373; Lillibridge v. Tregent, 30 Id. 105 ; Collins v. Torry, 7 Johns. 278 ; Kortright v. Cady, 21 N. V. 343. 81 Martin v. McReynolds, 6 Mich. 70; Ladue v. D. & M. R. R., 13 Id. 395 396, and cases cited ; Bailey v. Gould, Walk. Ch. 484; lb. 251 ; Dougherty V Randall, 3 Mich. 581; Briggs v. Hannowald, 35 Id. 474; Green v. Slayter, 4 Johns. Ch. 43; EUison v. Daniels, 11 N. H. 274; 4 Kent Com. 193; Ryan v. Dunlap, 17 111. 40. »8 2 Comp. L. 1871, ? 6913. «8 Nilesv. Ransford, 1 Mich. 338. »* Byles V. Lawrence, 35 Mich. 458. 8B Fletcher V. Carpenter, 37 Mich. 412; Haescig v. Brown, 34 Id. 504. • « Briggs V. Hannowald, 35 Mich. 474. »' Nichols V. Lee, 10 Mich. 52C ; Terry v. Tultle, 24 Mich. 206; Judge v. Vogel, 38 Id. 568-9; Duttbn v. Ives, 5 Mich. 515; Bloomer v. Henderson, 8 Id. 395". «8 Reeves v. Scully, Walk. Ch. 248; Cooper v. Ulman, lb. 251; Dulton v. Ives, supra; Lillibridge v. Tregent, 30 Mich. 105. BILLS TO FOEEOLOSE MOETGAGES. 425 - The assignee of a mortgage, if he desires to be protected, should give notice to the original makers thereof of its trans- fer," and he should take possession of the securities, or he may lose priority.*" A written assignment is unnecessary to transfer the title to a mortgage.* * A quit claim deed by a mortgagee of mortgaged premises, may operate as an assignment, or as a release, at the option of the grantee.*^ The equity of redemption may be sold on execution in the manner prescribed for the sale of other real estate,* ^ but not to satisfy the mortgage debt.** Growing crops, however, being treated as personalty may be levied on. (a) Upon a decree of foreclosure, the Court is authorized by the statute not only to compel the delivery of the possession of the premises to the purchaser, but upon the coming in of the report of sale to decree payment by the mortgagor of any balance of the mortgage debt that may remain unsatisfied after a sale of the mortgaged premises, in the cases where such bal- ance is recoverable at lawj and for that purpose execution may issue as in other cases, against other property of the mort- gagor.** A mortgage given to secure notes which have been allowed to run after maturity, maybe foreclosed at any time within the period of the limitations for the recovery of real estate.* ^ " Jones V. Smith, 22 Mich. 360; McCabe v. Famsworth, 27 Id. 52; Rob- inson v. Howes, 20 N. Y. 84; Ward v. Morrison, 25 Vt. 593. *• Haescig v. Brown, 34 Mich. 503; Fletcher v. Carpenter, 37 Id. 412. 41 Pease v. Warren, 29 Mich. 9. «» Thayer v. McGee, 20 Mich. 195; NUes v. Ransford, I Id. 338. " 2 Comp. L. 1871, U 4664, 4665. ** 2 Comp. L. 1881,2 4667. (a) Clark v. Stilson, 36 Mich. 482; Preston v. Ryan, 45 Id. 174. " Preston v. Ryan, supra; Gale v. Hammond. lb. 147; 2 Comp. L. 1871. J 5148. " Detroit Sav. Bank v. TruesdaU, 38 Mich. 431; McKinney v. Miller, 19 Id. 143. 426 BILLS TO POEECLOSE MORTGAGES. 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 a power of sale.* ' A statute giving clear title to foreclosure purchasers, does no injustice to general creditors.** Place of Filing BUI. — All bills for the foreclosure of mort- gages must be filed in the Circuit Court in Chancery for the county where the mortgaged premises, or any part thereof, are situated.*^ SECTION II. PAETIES. Complainants. — ^As a general rule, 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.® ^ If the mortgagee alone has any interest, he is of course the only necessary party. In Chamberlain V. Lyell,^''' the Supreme Court say that so far as mere legal rights are concerned, the only proper parties to *' Butler V. Ladue, 12 Mich. 180; Cowles v. Marble, 37 Id. 158. 4 8 Cook V. D. & M. R. R., 43 Mich. 349. As to proceedings in foreclosing railroad mortgages : 1 Comp. L. 1871, ? 2373. Water-powe} mortgages : Id. J 2756. Foreclosure by advertisement : 2 Id. I 6912. Laches : Burrow v. Debo, [Oct. Term, 1881], 47 Mich. " 2 Comp. L, 1871, ? 5146. = Story's Eq. PI., \ 199; Leonard v. Morris, 9 Paige, 90. "1 Martin v. McReynolds, 6 Mich. 70 ; Morey v, Forsyth, Walk. Ch. 465 ; Fisher v. Meister, 24 Mich. 447. See Judge Campbell's note in Morey v. Forsyth, Walk. Ch. 465. «2 3 Mich. 459. BILLS TO FORECLOSE MOKTGAGES. 427 a foreclosure suit are the mortgagor and the mortgagee, and those who have acquired rights or interests under them subse- quently to the mortgage. If the mortgagee has made an under mortgage as a security for a smaller sum than is due on the mortgage, and the under mortgagee brings a bill to foreclose, the original mortgagee is a necessary party, because the latter has a right to redeem the under mortgagee. ^^ If the mortgagee has assigned the mort- gage absolutely, the assignee is the only proper party. It would be otherwise if it were assigned as a collateral.^* Payment of a first mortgage by a second mortgagee makes him in equity an assignee of the prior securities, and entitled to all remedies. ^^ If the mortgagee is dead, his personal representative is the proper complainant to bring the bill, for ordinarily the mort- gage money belongs to the personal assets, and draws after it the mortgaged estate as an incident.*^ Under the statute, when a' mortgagee dies before foreclos- ure, the mortgage and debt are considered as personal assets in the hands of the executor or administrator, and he may foreclose the same or continue a foreclosure already begun, and have any other remedy which the deceased could have had, if living. 5 7 A mortgage conditioned for the support of the mortgagee by the mortgagor, cannot be foreclosed for the benefit of per- sons who had boarded the mortgagor at the mortgagor's request. 5' A legatee may foreclose a mortgage specifically be- queathed.^' »3 Story's Eq. PI., §? 153, 199; Cooper Eq. PI. 37. " Norto.n v. Warner, 3 Edw. 106. 5 5 Mattison v. Marks. 31 Mich. 421 ; Russell v. Howard, 2 McLean, 489; Downer v. Fox, 20 Vt. 388. " Story's Eq. PI.; § 200. »' 2 Comp. L. 1871, § 4412; Albright v. Cobb, 30 Mich. 355. 08 Daniels v. Eisenlord, 10 Mich. 454. '» Proctor V. Robinson, 35 Mich. 284. 428 BILLS TO FORECLOSE MOETGAGES. Partners need not be joined as complainants in the fore- closure of a mortgage given to only one of the firm as trustee for the partnership.^" And it may be generally stated that all persons who have the legal as well as the equitable interest in the mortgage are necessary parties to a foreclosure bill. There can be no redemption or foreclosure unless all the persons entitled to the whole mortgage money are before the court.^i Defendants. — All persons having an interest in the equity of redemption should be made parties to a bill of foreclosure.*^ And if it belong to different persons as devisees or as legatees having charges thereon, they should be joined as defend- ants.*^ And hence it has been asserted to be the general, although not universal rule, that all encumbrancers, as well as the mort- gagor should be made parties, if not as indispensable, at least proper parties to such a bill, whether prior or subsequent encumbrancers.* * But Mr. Story ad^s that it may be well doubted whether in any case it is necessary for a junior mortgagee, in a bill of foreclosure against the mortgagor and mortgagees subsequent to himself, to make any mortgagee prior to himself a party to the bill. 6 5 But encumbrancers who become such pendente lite are not deemed necessary parties, although they are bound by the decree.** «<• Shelden v. Bennett, 44 Mich. 634. «i Story's Eq. PI., g 201: " Story's Eq. PI., ? 193 ; McDonald v. McDonald, 44 Mich. 44. «» McGown V. Yerks, 6 Johns. Ch. 450; Reed v. Marble, 10 Paige, 409; Goodenow v. Ewer, 16 Cal. 461. •* Story's Eq. PI. § 193; Haines v. Beach, 3 Johns. Ch. 459; Finley v. Bank of U. S., 11 Wheat. 304. " Story's Eq. PI., ? 193; Richards v. Cooper, 5 Beav. 304; Sladev. Rigg, 3 Hare, 35, 38 ; Calvert on Parties, 128-138. ♦• Story's Eq.' PI., J 194. BILLS TO POEKCLOSE MORTGAGES. 429 The mortgagor is a necessary party, though the personal remedy against him is barred.'^ A defendant whose connection with the mortgage or the equity of redemption is not shown by the bill, is not a proper party, and the bill as to him should be dismissed with costs, (a) Where a defendant brought in by publication petitions to be heard, his right to answer the bill on payment of costs is absolute, and his equities cannot be decided on affidavits opposing the petition.(6) Persons interested in mortgaged premises, not made parties to a bill of foreclosure, are not concluded by the decree.^* If the mortgage debt is secured by the obligation, or other evidence of debt of any other person besides the mortgagor, the complainant may make such person a party to the bill, and the Court may decree payment of the balance of such debt 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. ^^ Where a grantee in a deed agrees to pay existing mort- gages on the premises purchased, the mortgagee may treat both the mortgagor and his grantor under such a promise as princi- pal debtors, and may have a personal decree against either or both, the principle being that the creditor is entitled to the benefit of all collateral obligations for the payment of the debfo " Mich. Ins. Co. v. Brown, 11 Mich. 265. [a) Havens v. Jones, 45 Mich. 253. (b) McDonald V. McDonald, lb. 44; 2Comp. L. 1871, § 5127. «8 Peabody v. Roberts, 47 fearb. 91 ; Brainard v. Cooper, 10 N. Y. 356. As to collateral undertaking: Joy v. J. & M. Plank Rd., 11 Mich. 155. 1 "i,^ ^^^\ ^- '^^Ih t^^^°= Crawford v. Edwards, 33 Mich. 354; Bige- bw V. Bush, 6 Pa,ge, 343; Curtis v. Allen, 9 Id. 432; Bu'ir v. Bee4 ll N. Y. r,,]" %^'^''°oo ''t/^o,"'^;-^^ Mich. 354; Miller y. Thompson, 34 Id 10- 35 Id W^ ^^- ^wA,?'^^°t7- ^'^^"^- ^^- 523; Taylor v mitmore 35 Id. 97; Wmans v Wilkie, 41 Id. 264; King v. Whitely, 10 Paige. 465" Loomis V. Stuyvesant, lb. 495. See Turner v. McCarty, 22 Mich 265 ' 430 BILLS TO FOEECLOSE MORTGAGES. But where a grantee purchases the mortgaged premises subject to the incumbrances, he does not become personally liable.' ^ If the payment of the mortgage is assumed by the grantee, the mortgagor is not a necessary party imless a per- sonal decree is sought.'^ Where a grantee assumes the payment of a mortgage, he cannot defend by a claim that the same was without consid- eration, or that the description was defectiye.'^ The mortgagee of land cannot enforce a promise to pay the mortgage, made to the mortgagor by the latter's grantee, because it is a promise to a third person.''* One who has bought mortgaged property and promised to pay the mortgage, is made a defendant in foreclosure, in order to enforce the equity by subrogation, and it seems that he is in turn subrogated to any collateral securities held by the mort- gagee.'* A personal decree cannot be made in one jurisdiction against parties living in another, and not personally served or not voluntarily appearing.'* When the mortgagee assigns his bond and mortgage, and guarantees the collection of the debt, the assignee may make him a party to the bill for the purpose of obtaining a decree for deficiency in case it should not be collected from the mort- gagor.'^ If the mortgagor, or other party, who is personally liable for the deficiency, is dead, his personal representatives may be made parties to the suit, to enable the complainant to obtain a decree that the deficiency be paid out of the estate in their hands. '^ '1 Winans v. Wilkie, supra; Booth v. Conn.' M'tl. Ins. Co. 43 Mich. 299. ' ^ Miller v. Thompson, supra. '* Crawford v. Edwards, supra; Comstock v. Smith, 26 Mich. 321; Cooper V. Bigly, 13 Id. 480. ■>* Booth V. Conn. Mut. Life Ins. Co. 43 Mich. 299. "> Leonard v. Morris, 9 Paige, 90. '« Leonard v. Morris, supra; Abbott v. Godfroy Heirs, 1 Mich. 179. BILLS TO FORECLOSE MORTGAGES. 431 The only cases in which the personal representative is necessary to be made a party to a bill of foreclosure seems to be when he has an interest in the equity of redemption, as for example, where the mortgagor was possessed of a term of years, which he has mortgaged," or when the personal estate is sought to be charged with a deficiency.'' * If the mortgage comprises both freehold and leasehold estates, the heir and the personal representative must both be made parties to the bill.^* K the mortgagor, who is owner of the fee, should die, his heir is an indispensable party to a bill to foreclose.*" [_See Revivor and Bills of Revivor, pp. 333, 340.] Where one of several assignees of a mortgage dies, his interest in the mortgage and the mortgage debt survives to the others, and his personal representative is not a necessary party to a foreclosure suit. i'he policy of the law is adverse to the doctrine of taking by mere right of survivorship except in a few special cases, and should not be applied except where the law in its favor is very clear. *i In case of husband and wife, the rule is not applicable to personal securities.*^ Adverse Titles.— It is not competent in a foreclosure suit 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 " Story's Eq. PI. § 196; Bradshaw v. Outram, 13 Ves. 235. " Abbott V. Godfrey Heirs, 1 Mich. 178. " Story's Eq. PI. g 196. 'o Story lb. „ r." 2 Comp. L. 1871, § 4112; Cote v. Dequindre, Walk. Ch. 64 ; Martin v V5''^^?;°°l'^^' ^ **'''''• '^2; '^^"«'' "■ Wetherell, 9 Id. 464; Fisher v. Provin, 25 Id. 347 ; Wait v. Bovee, 35 Id. 425 ; ^tna Ins. Co. v. Resh, 40 Id 241 ; Man- wanng v. Powell, lb. 371 ; 26 Vt. 429 ; 37 Ind. 408. «2 Wait V. Bovee, 35 Mich. 425. 432 BILLS TO FOEECLOSB MORTGAGES. mortgagee. 8^ Yet where such adverse claimant is also an ow^er of an interest in the equity of redemption, it is proper to make him a party, for the purpose of foreclosing such inter- est.8 4 But where a subsequent purchaser of the mortgaged prem- ises from the mortgagor for the purpose of perfecting his title, procured quit-claim deeds from the mortgagor's grantor under circumstances as would render it fraudulent for him to set up such conveyance as a title adverse and paramount, the mort- gagee under proper allegations in his bill had such adverse title declared null and void.' ^ The holder of a mortgage dated and recorded before a deed of the same property, may treat all subsequent rights as sub- ordinate, and in his bill of foreclosure such rights need not be litigated.(a) The wife of a mortgagor is not a necessary party to a bill to foreclose a purchase money mortgage given by the husband alone at the time of the purchase, even though she claims a homestead right.*'' Otherwise she would be.*' In a proper case a wife may file a bill to protect her home- stead from the effect of an invalid foreclosure.** A mortgagee who files a bill of foreclosure is not bound to bring in parties interested in the equity of redemption unless where he has actual or constructive notice of their claims, and when he has no such notice, they are barred ^by the foreclos- ure.** 8 8 Chamberlain v. Lyell, 3 Mich. 448 ; Wright v. Dudley, 8 Id. 115 ; Horton V. Saunders. 13 Id. 409; F. & M. Bank v. Bronson, 14 Id. 363; Comftock v. Comstock. 24 Id. 39 ; Summers v. Bromley, 28 Id. 127; Wilkinson v. Green, 34 Id. 221 ; Tower v. Divine, 37 Id. 443; Wanzer v. Blanchard, 3 Id. 11 ; Adams V. Bradley, 1 2 Id. 346 ; Allen v. Mills, 26 Id. 128 ; Bell v. Pate, [Jan'y Term^ 1882], 47 Mich. ; Eagle Fire Co. v. Lent, 6 Paige, 637; 98 U. S. 56. " F. & M. B. V. Bronson, 14 Mich. 362; Horton v. IngersoU, 13 Id. 409. 8 6 Wilkinson v. Green, 34 Mich. 221. »» Amphlett v. Hibbard, 29 Mich. 298. («) Sheldon v. Warner, 45 Mich. 638. »' Shoemaker V. Gardner, 19 Mich. 96. »B Comstock V. Comstock, 27 Mich. 97; 2 Comp. L. 1871, I 4805; Other cases; McClure v. Holbrook, 39 Mich. 4i2. »» Woods V. Love, 27 Mich. 308. BILLS TO FORECLOSE MOETGAGES. 433 A fraudulent grantee of a title equitably subject to the mortgage is a proper defendant.'" A bill to foreclose a mortgage given to secure a joint and several note, must make all the parties to it defendants, even though the mortgage was made by one of them. This is espec- ially so where the mortgage has been assigned.' ' Gestwi Que Trusts. — In a suit by a trustee to reduce the trust fund into his possession, the cestui que trust need not be made a party.' 2 It would be otherwise if the- existence or enjoy- ment of the trust property wei-e to be affected.'* A trustee holding a mortgage as such, need not make his cestuis que trusts parties to a bill to foreclose it.'* Minors whose guardian has assigned a mortgage which he held for them, are not necessary parties to a foreclosure bill by an assignee."* The statute extends to all non resident defendants whether mortgagor or subsequent incumbrancers.'^ A guarantor of the collection of a debt secured by mort- gage is not a proper pai-ty to a foreclosure suit." Prior to 1875, a sheriff's certificate of an execution sale was not constructive notice to prior mortgagees, though regularly filed in the Eegister's office. But since then certificates are required to be recorded in the office of the Eegister of Deeds, and the purchaser mentioned therein should be made a party. ' * In proceedings to condemn lands for a railroad right of way, mortgagees of the land must be made defendants ; -and a »" Adams V. Bradley, 12 Mich. 346. »i Dederick v. Barber, 44 Mich. 19. ., " '^^f™' "• B'^^'i'ey. 12 Mich. 346; Morey v. Forsyth, Walk. Ch. 465; Martin v. McReynolds, 6 Mich. 70; F. & P. M. R. R. v. Gordon, 41 Id. 420. ' » Cook V. Wheeler, Harr. Ch. 443 ; Sill v. Ketchum, lb. 423. »* Sill V. Ketchum, Harr. Ch. 423. •" Livingston v. Jones, Harr. Ch. 165. " Bailey v. Murphy, Walk. Ch. 305. *' Johnson V. Shepard, 35 Mich. 116. , r- "..P"- ^"'^ ^^ ' 2 "-"""P ^- ^871, § 4639, as amended by Laws of 1875, p. 154; Woods V. Love, 27 Mich. 308. 55 434 BILLS TO FOEECLOSE MOETGAGBS. discontinuance as to them without adjudicating on their rights, is fatal to the proceedings.' ' Before leaving this part of the subject, the student should be reminded of the importance of having a thorough search made of the records in the office of Eegister of Deeds, to ascer- tain what parties claim rights in the premises. SECTION III. ITIAME OP BILL. It is provided by rule that in a bill of this nature it shall not be necessary to set out at large the rights and interests of the several defendants who are purchasers of, or who have liens on the equity of redemption in the mortgaged premises, subsequent to the registry or recording of complainant's mort- gage, and who claim no right in opposition thereto ; but it shall be sufficient for the complainant, after setting out his own right and interest in the premiseSj to state generally that such defendants have, or claim some interest in the premises, as subsequent purchasers or encumbrancers, or otherwise.^ "^ The general averment that defendant is a subsequent pur- chaser relates only to his subsequent incumbrance.^"' But where special relief is sought by postponing a prima facie mortgage, or assailing priority of record, or for other rea- sons, special allegations are necessary. '"^ »» Mich. Air Line R. W. Co. v. Barnes, 40 Mich. 383. i»o Ch. Rule 91. The practice in the U. S. Courts is the same. — U. S. Circt Ct Rule 5. 101 Dawson v. Danbury Bank, 15 Mich. 495. in^ Dawson v. Danbury Bank, supra; Wurcherer v. Hewitt, 10 Id. 453; Crippen v. Morrison, 13 Id. 24; Shotwell v., Harrison, 22 Id. 410; Summers v. Bromley, 28 Id. 125. BILLS TO FOEECLOSE MOETGAGEB. 435 If parties are unnecessarily compelled to put in an answer, they will be entitled to costs. ^ " * The statute requires that the bill must state whether any proceedings have been had at law for the recovery of the debt secured by the mortgage, or any part thereof, and whether such debt, or any part thereof, has been collected or paid,i«* and that the legal remedy has been exhausted. 1"^ The said language has been held to refer to suits on the debt, and not to previous foreclosure proceedings.! "^ Care should be taken to state, in the language of the stat- ute, either that no proceedings at law have been had in the premises, or if so, what they were. ^ " ' Executors of a mortgagee must not only describe themselves as such, but must set forth the death of their testator and the probate of his will.(a) Unless the bill contains the proper averments, no proof can be admitted. 1 " * It should expressly aver that the debt is due, or it will be demurrable. Also the assignment of the mort- gage, if made. 10^ In a suit to foreclose a second mortgage, a title obtained under the foreclosure of a first mortgage, cannot be assailed 1°' U. Ins. Co. V. Van Rensselaer, 4 Paige, 85. As to proper allegations connecting a defendant : See Havens v. Jones, 45 Mich. 253. '»^ 2 Comp. L. 1871, ?5151. 105 Shufelt V. Shufelt, 9 Paige, 137 ; Lovett v. G. R. Ch., 12 Barb, 67. i»« Lee V. Clary, 38 Mich. 223. "' Pattison v. Powers, 4 Paige, 551. As to obtaining correction of description in deed of mortgaged premises on foreclosure : See Cummings v. Freer, 26 Mich. 129. (a Midcilesworth v. Nixon, 2 Mich. 425. "8 Peckham V. Buffam, 11 Mich. 530; Covell v. Cole, 16 Id. 223 ; Har- wood V. Underwood, 28 Id. 427 ; Ford v. Loomis, 33 Id. 121. See Thayer v. Lane, Walk. Ch (note by Judge Campbell) 200 ; Livingston v. Hayes, 43 Mich. 129; Bailey v. Gould, Walk. Ch. 478 ; Moiris v. Morris, 5 Mich. 171 : Martin v, McReynolds, 6 Id. 71. '" Livingston v. Jones, Harr. Ch. 165. 4:36 BILLS TO FORECLOSE MOETGAGES. without special averment, showing why it ought to be post- poned. ^ 1 " Where the" mortgage contains conditions precedent, the bill must aver performance, i ^ ' Common certainty is sufficient in the description of the mortgaged premises. ^ ^ ^ A bill to protect a homestead must show all the facts neces- sary to the description of a legal homestead. ^ i ^ Where it is sought to establish equal priorities between two mortgagees, the bill should set out the facts, and a decree may be made under the general prayer for foreclosure and sale, and a ratable application of the proceeds.^^* A bill in aid of ejectment proceedings cannot be converted into a foreclosure bill by merely substituting the ordinary prayer for foreclosure in place of the prayer originally made.i^^ Interest Clause. — Where a mortgage contains a clause that if the- interest was not paid within a certain time, the priaci- pal amount secured should- become due and payable at once, at the option of the holder, it is unnecessary to give a formal notice of election prior to the suit. It is sufficient if the bill alleges that the complainant makes his election that the princi- pal shall become due at once.^^^ But where there is a bona 110 Wurcherer V. Hewitt, 10 Mich. 453; Dawson v. Danbury Bank, 15 Id. 489. ^11 Curtis V. Goodenow, 24 Mich. 21. ^s to privity of title : See Wright v. Dudley, 8 Mich. 115. li» Ives V. Kimball, 1 Mich. 308; Anderson v. Baughman, 7 Id. 69; Good- enow V. Curtis, 18 Id. 298; Russell v. Sweezey-, 22 Id. 235; Slater v. Breese, 36 Id. 81, and numerous cases cited; Shepard v. Shepard, lb. 173. As to abbreviation of names and allegation of identity, see Ramsdell v. Eaton, 12 Mich. 117. '1° Shoemaker v. Shoemaker, 19 Mich. 96. "* Van Aken v. Gleason, 34 Mich. 477. 115 Livingston V. Hayes, 43 Mich. 129. 1" English V. Carney, 25 Mich. 178; Johnson v. Van Velsor, 43 Id. 215, 2 Hilliard on Mortgages, p. 2 ; Basse v. Gallegger, 7 Wis. 446 ; Noonan v. Lee- 2 Black, 500; Vyse & Wakefield, 6 Mees. & Wels. 456 and note ; and see Brod, erick v. Smith, 26" Barb. 539; Ferris v. Ferris, 28 Id. 29; Dwight v. Webster; 32 Id. 47. BILLS TO POEECLOSE MORTGAGES. 437 fide dispute as to the liability to pay interest at the time alleged, the Court will not enforce the penalty.' ' ' Where a mortgage or other security is set forth and referred to in the bill, and made a ground of relief, it becomes a neces- sary part of the record, and if not denied in the answer it needs no formal proof. ^ ^ * An allegation that the mortagee assigned a mortgage to complainants, and on the same day the said assignment was duly acknowledged according to the laws of if ew York, is suf- ficient on demurrer.i'^ Where a defendant claims the mortgaged premises under a deed recorded prior to the mortgage, the complainant, if he charges fraud, must set forth in his bill the facts and allega- tions which show the fraud, i ^ o Avoidance of a special defense is pleaded by introducing the defense in the bill in the form of pretense, and adding matter of reply in the form of a charge. If the bill is not so framed originally, a particular defense set up by the answer should be met by amending the bill.' ^^ ' 1 ' English V. Carney, supra. 1" Mickle V. Maxfield, -12 Mich. 304; Chancery Rule 56. 1"^' Livingston v. Jones, Harr. Ch. 165. 12» Wurcherer V. Hewitt, 10 Mich. 453. Necessity of special averments as to incumbrances, see Dawson v. Danbury Bank, 15 Mich, 489; Wilkinson t. Green, 34 Id. 221; Comstock v. Comstock, 24 Id. 39 ; Summers v. Bromley, 28 Id. 125. '"1 Connerton v. Millar, 41 Mich. 608. When cross-bill unnecessary : McBride v. Wright, 46 Mich. In suit on official bond : See Shelden v. Warner, 45 Mich. 638. IVhen bill in aid of execution will not lie : Gale v. Hammond, 45 Mich. 147 438 BIUS XOFOEEGLOSE MOKTGAGES. SECTION rv. PEOCEBDINGS. Notice of Ids Pendens. — To render the filing of a bill con- structive notice to a purchaser of any real estate-, it is the duty of the complainant to file for record with the Begister of Deeds of the county in which the lands to be affected by such constructive notice are situated, a notice of the pendency of such suit in Chancery, setting forth the title of the cause, and the general object thereof, together with a description of the lands to be affected thereby. It is the duty of the Begis- ter to record such notice in a book kept for that purpose, upon the payment of the same fees as is provided ^by law for record- ing deeds. A copy of such record, authenticated by the Beg- ister, is made evidence of such notice, and the filing of the same, in all courts and places.* ^^ The filing of such notice is unnecessary to bind one who has actwd notice.* ^' Each Begister of Deeds must enter in an index, to be kept in his office, such references to the said notices as will enable all persons interested to search his office for them without inconvenience. ' ^ * Notice to Defendants of Object of Suit. — For the purpose of informing parties, against whom a personal decree is asked, of the object of the bill, and to save them from unnecessary expense, it is provided by rule that after January 1, 1880, »"• 2 Comp. L. 1871, 1 5065. ^s to discharge cf same: Laws of 1873, p. 217. i»» Baker v. Pierson, 5 Mich. 456. "« 2 Comp. L, 1871, 2 5066. BILLS TO FORECLOSE MOETGAGES. 439 / the subpoena must contain a notice of the filing of the bill, and of the time when appearance may be entered ; also an underwriting designating against what defendants a personal decree is asked. ^ ^ ^ The statute provides that when a bill is filed to foreclose a mortgage upon which there shall be due any interest, or any portion or instalment of the principal, and there shall be other portions or instalments to become due, subsequently, the bill shall be dismissed upon the defendant's bringing into court, at any time before the decree of sale the principal and interest due, with costs.^^^ Under a similar statute it has been held that the foregoing provisions apply only to mortgages conditioned for the pay- ment of money. ^ ^ ' If, after a decree for sale has been entered against the defendant in such case, he shall bring into court the principal and interest due, with costs, the proceedings in the suit will be stayed ; but the Court will enter a decree of foreclosure and sale to be enforced by a further order of the Court upon a sub- sequent default in the payment of any portion or instalment of the principal, or of any interest thereafter to grow due.^^* If a bill to foreclose a mortgage is taken as confessed, or the right of the complainant, as stated in his bill, is admitted by the answer, he may have an order of course referring it to a commissioner to compute the amount due to him, and to such of the defendants as are prior incumbrancers of the mort- gaged premises. If the defendant is an infant, and has put in a general answer by his guardian, or any of the defendants are absentr ees, the complainant may have a similar order of course, refer- "» Ch. Rule 122. "' 2 Comp. L. 1871, ? 5157 ; Brown v. Thompson, 29 Mich. 74. "' Ferguson v. Ferguson, 2 N. Y. 360. But see Tucker v. Tucker, 24 Mich. 426. "» Brown v. Thompson, 29 Mich. 72; Perkins v. Perkins, 16 Id. 162; 8 Comp. L. 1871, 2 5158; Smith v. Osbom, 33 Id. 410; Vagun v. Nims, 36 Id. 297 ; Coming v. Baxter, 6 Paige, 178. 440 BILLS TO FORECLOSE MORTGAGES. ring it to a commissioner, to take proof of the facts and circum- stances stated in the complainant's bill, and to compute the amount due on the mortgage, preparatory to the hearing of the cause.i^^ The commissioner must report such proof and examinations to the Court.^^" Mandamus lies to compel a commissioner to proceed on an order of reference tendered to him for execution in a foreclos- ure case.'^i Upon a reference as to absentees the bill will not be con- sidered evidence before the commissioner of any fact stated therein. But when so directed by the Court, he may receive the testimony of the complainant as evidence. ^''^ When the bill is filed for the payment of money, the Court may, in its discretion, direct that the complainant be exam- ined as to any payments made to him, or for his use on account of the demand mentioned in the bill, or he may be examined in open court.^^* Insurance and Taxes. — In computing the amount due, the commissioner cannot allow the amount of premium paid for insurance unless paid by express agreement.!^* But he may allow payments for taxes or assessments which were a lien on the premises.^*^ The duty to pay taxes on mortgaged land is primarily on the mortgagor, but if he makes default, any mortgagee may pay them and add the same to his lien, [a] but not if he bids in the premises at the tax sale. [6] i»» Ch. Rule 92. i" 2 Comp.L. 1871, ? 5123. i«» Warner v. Randall, 37 Mich. 473. "i! Ch. Rule 92; 2 Comp. L. 1871, 55 5120,5121, 5122; Brown v. Thomp- son, 29 Mich. 75 ; Southwick v. Van Bussum, 1 Paige, 648. IS' 2 Comp. L. 1871, ? 5122. >»4 Faure v. Winans, Hopk. 283. i«6 1 Comp. L. 1871, 5 1102; Tax Law of 1882, 2 42; Payne v. Avery, 21 Mich. 524 ; Vaughn v. Nims, 36 Id. 297 ; Robinson v. Ryan, 25 N. Y. 320. [a] Conn. Mutl. L. Ins. Co. Bulte, 45 Mich. 113. [^] Maxfield v. Willey, [June Term, 1881,] 46 Mich. BILLS TO JF0EECL08E MORTGAGES. 441 A mortgagee does not owe any duty to a subsequent mort- gagee, or to the owner to j)rotect tlie latter's lien as against tax titles, [a] But if he bids in the premises at a tax sale, the mortgagor can treat the purchase as a j)ayment, and compel the cancellation of the tax certificate or deed on refunding the amount paid with interest. Neither jjarty to a mortgage can cut off the other's interest by bidding in the premises at a tax sale if the other party objects thereto. [6] The Court may dispense with a reference to compute the amount due on a mortgage, and make its own computation.^^^ Amendment. — The Supreme Court may permit a foreclosure bill filed to enforce void securities, to be so amended after hear- ing as to ask for an accounting for the debt, (c) SECTION V. HEARING A2fD DECREE. Hearing.— H the suit is to be heard upon pleadings, or pleadings and proofs, so as to bring it under the fourth class of causes on the calendar, it will be entitled to a preference over any other causes of the same class, unless the defendant before the cause is heard, shall file with the Eegister an affida- vit that he has a good and meritorious defense, and that his answer Was not put in for the purpose of delay. The filing of such affidavit must be noted on the calendar.^ ^ ' [a] Conn. M. L. Ins. Co., supra. [^] Maxfield v. Willey, supra. "6 Ireland v. Woolman, 15 Mich. 254; Vaughn v. Nims, 36, Id. 297. [f] Burton v. Schiedbach, 45 Mich. 504. As to amending Prayer of bill : Church v. Hoi comb, 45 Mich. 29. Bill to give deed effea of a mortgage: See Tilden v. Streeter, 45 Mich. 533, >" Ch. Rule 63. 56 442 BILLS TO FOEECLOSE MOETGAGES. The affidavit may be made by the defendant's solicitor.*" Where the bill is taken as confessed, or the complainant's case is admitted by answer, or where there are defendant infants or absentees, the cause must be regularly brought to hearing at a term after the coming in of the commissioner's report, before a final decree is entered therein. If the bill has been taken as confessed, the complainant must show tothe Court at the hearing, by affidavit or other- wise, that the .proceedings to take the biU as confessed have been regular, according to the rules and practice of the court. He must also show whether the bill has been taken as con- fessed against all of the defendants upon service of subpoena or after an appearance, or whether some of them have been proceeded against as absentees.*^' A foreclosure is invalid that is based on an order of publi- cation made upon complainant's affidavit that defendants could not be found, the subpoena having been returned before the return day. The proof of defendant's absence, and of dili- gence in seeking to obtain service on him upon which to base an order of publication, should rest on the applicant's own knowledge, [a] If the defendant does not bring into court the amount due, with costs, or if for any otlier cause a decree shall pass for the complainant, the Court may direct a reference to a commis- sioner to ascertain and report the situation of the mortgaged premises, or may determine the same on oral or other testi- mony ; and if it shall appear that the same can be sold in parcels without injury to the interests of the parties, the decree should direct so much of the mortgaged premises to be sold as wiU be sufficient to pay the amount then due on 1" Banks v. Walker, 1 Barb. Ch. Rep. 74. »»« Ch. Rule 92; 2 Comp. L. 1871, U 5120-5124. [a] Soule V. Hough, 45 Mich. 418. As to Unknown Heirs : See Laws of 1879, p. 173, as amended by Laws of 1881, p. 234. BILLS TO FOEECLOSE MORTGAGES. 443 such mortgage with costs; and such decree shall remain as security for any subsequent default.*** It is proper to include in the decree a sum which has fallen due since the commencement of the suit.**' If there is any default subsequent to such decree, in the ' payment of any portion or installment of the principal, or oi any interest due upon such mortgage, the Court may, upon the petition of the complainant, by a farther 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 proceed- ings may be had as often as a default shall happen.* *2 Where money is payable by installments, no decree can be lawfully made for any of them until an opportunity has been afforded to contest each alleged default, and a decree upon one hearing will not authorize a sale for a subsequent installment without a new hearing and adjudication. * * ^ The ascertainment that a debt is due and unpaid, and the determination of the amount, are judicial acts.*** Upon a bill filed to foreclose a mortgage payable in install- ments, at a time when only one installment had become due, and remained unpaid, and which seeks a foreclosure for that payment only, a decree covering in addition thereto, other installments not yet due, when the biU was filed, is unwar- ranted.'*^ While the statutes and practice under them require a new inquiry into any installments accruing after decree, the prac- i*» 2 Comp. L. 1871, § 5159; Ontario Bank v. Strong, 2 Paige, 301; Bank of Ogdensburgh v. Arnold, 5 Id. 38. "1 Howe V. Lemon, 37 Mich. 164. 1" 2 Comp. L. 1871, § 5160; Perkins v. Perkins, 16 Mich. 162 ; Tucker V Tucker, 24 Id. 426; Smith v. Osborn, 33 Mich. 410; Albany City Bank v. Steevens, Walk. Ch. 6. "s Perkins v. Perkins, 16 Mich. 162; McCurdy v. Clark, 27 Id. 445; For practice, see Albany City Bank v. Steevens, Walk. Ch. 6; Brown v. Thompson, 29 Id. 74; Vaughn V. Nims, 36 Id. 297. '** Perkins v. Perkins, supra. i*" Smith V. Osborn, 33 Mich. 410. 444 BILLS TO POKBCLOSB MORTGAGES. tice has always prevailed of giving decree for everything due at the time it is granted. * * ^ Each installment of a mortgage payable in installments, is so far separate from the rest, under the statute, that a payment before decree in a suit to forecdose for a single installment, puts an end to the suit; and payment after decree would have thei same effect but for the saving clause of the statute, i*' The proceeding for a further decree upon an additional installment after payment of a prior decree is essentially a new suit in all except form ; and notice is required to every person whose interests are to be affected, as in an original suit; and the rights of the parties can only be determined by proofs, as in other cases.^** The effect of a default in a suit to foreclose for an install- ment is only to admit the securities as alleged, and the amount then due ; and it cannot operate as an admission in the future of the non-payment of an installment not yet due.^*^ The Court should always for itself, pass upon the evi- dence.15 The determination of the exact amount due on a mortgage which involves the determination of the precise amount of any payments, is imperatively^ involved in a foreclosure suit, and a decree in such suit is a final adjudication on the subject matter.^'' If in any of the cases mentioned, it shall appear to the Court that the mortgaged premises are so situated that a sale of the whole will be most beneficial to the parties, the decree must, in the first instance, be entered for the sale of the whole premises accordingly.!^^ "6 Vaughn v. Nims, 36 Mich. 297; Brown v. Thompson, 29 Id. 74; Howe V. Lemon, 37 Id. 164; Johnson v. Van Velsor, 43 Id. 215. i*' Brown v. Thompson, 29 Mich. 72; 2 Comp. L. 1871, ? 5157; Fore- closure by Advertisement, see Shermer v. Merrill, 33 Mich. 284. 118 Brown V. Thompson, supra; Tucker v. Tucker, 24 Mich. 426. 1*' Brown v. Thompson, supra. IBO Vaughn v. Nims, 86 Mich. 297. 1" Hazenv. Reed, 30 Mich. 331. IBS 2 Comp. L. 1871, § 5161 ; Disbrow v. Jones, Harr. Ch. 48. BILLS TO FOKECLOSE MOETGAGES. 445 In such case the proceeds of such sale shall be applied as well to the interest, portion, or installment of the principal due, as towards the whole or residue of the sum secured by such mortgage and not due and payable at the time of such sale, and if such residue do not bear interest, then the Court may direct the same to be paid with a rebate of the legal inter- est for the time during which such residue shall not be due and payable ; or the Court may direct the balance of the pro- ceeds 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 thereon may become due, and the surplus for the benefit of the defendant, his representatives or assigns, to be paid to them on the order of the Court.' ^^ The English doctrine of tacking mortgages has not been adopted in this country.'^* Sale of Mortgaged Premises under Decree. See Sales under Decrees, p. 148. Marshalling'of Securities ; Inverse order of Alienation. See Sales, p. 153. In foreclosure proceedings against non-residents, absentees, etc., the Court, instead of proceeding to a sequestration as pro- vided in Section 5126, of the Compiled Laws, 1871, may decree a sale of the mortgaged premises, or of such part thereof as may be necessary to discharge the mortgage, and the cost of suit, as in other cases.' ^^ But the defendant, at any time before the sale, may appear and pay to the complainant such costs as the Court may award, whereupon the sale will be stayed, and the same proceedings must thereafter be had as if the 1" 2 Comp. L. 1871, § 5162. 1B4 Wing V. McDowell, Walk. Ch. 175; Bridgen v. Carhart, 1 Hopkins, 234; Loring v. Cooke, 3 Pick. 50; Grant v. U. S. Bank, 1 Caines Cas. 112; 4 Kent Com. 178, 179. 155 2 Comp. L. 1871, ? 5130. 446 BILLS TO FOEBCLOSE MOETGAGES. defendant had been served with process, and had regularly appeared.i^^ Such defendant may appear within one year, after notice in writing, of a decree rendered against him, and within seven years after the making of the decree, when such notice shall not be given.i^^ If such defendant, or his representatives, shall not so appear, after the making of such decree, the Court must then by an order, confirm the decree against such defendant, and against all persons claiming under him, by virtue of any act subse- quent to the commencement of the suit ; and may make such further order as may be proper.*^' No sale and conveyance regularly made under said section upon a foreclosure bill shall be affected by the appearance of a defendant within one year, or seven years, as mentioned ; nor by any other proceeding. But such defendant, or his repre- sentatives, may at any time within seven years after a decree ordering a sale, file a bill against the complainant, or his rep- resentatives, to account for all moneys received by him, or them, by virtue of such decree, over and above the amount justly due on the mortgage, and costs of suit ; and the Court shall proceed on such bill according to the equity of the case.^ ^ ' It is no defense to a bill for foreclosure by the assignee of a mortgage that the assignment to him was without considera- tion. The mortgagor has no interest in that question, except as the want of it may enable him to make a defense he might have had against the mortgagee. ^ ^ " The rule would not apply where a subsequent incumbrancer raised the defense.^ *^ In the absence of fraud or mistake, the consideration men- tioned in the mortgage cannot be defeated by parol testimony. 1" 2Comp. L. 1871, §5131. iB» 2 Comp. L. 1871, § 5128; Kingv. Harrington, 14 Mich. 532. "8 2 Comp. L. 1871, §5129. "» 2 Comp. L. 1871, § 5132. 18» Adair V. Adair, 5 Mich. 205. i«I Bishop V. Felch, 7 Mich. 372. BILLS TO FOEEOLOSE MOBTGAGES. 44? But if sought to be attacked on the excepted ground, it must be set forth in the bill.' * ^ The purchaser of an equity of redemption of mortgaged premises, being in possession under said purchase, is estopped on foreclosure, from claiming adverse title in himself, or setting it up in a stranger. ' ^ ^ Where a defendant claims that the mortgaged premises should be sold in the inverse order of alienation, a cross-bill is not necessary, but the facts may be setup in his answer. i.^* Anything done by a first mortgagee to the prejudice of a second mortgagee, with a knowledge of the second mortgage, should to the extent of such injury, postpone the first to the second mortgage. ' * ^ Voluntary payment of a mortgage to one not lawfully enti- tled to collect it, afber notice, and after suit brought by the owner to foreclose, is no protection to any one. ^ * * Burden of Proof. — ^When the answer does not admit the facts set up in the bill, the burden of proof is upon the complain- ant.' ^^ And the proofe must conform to the allegations iu thebill.18 8 In a suit brought for the sole purpose of foreclosing a mort- gage, no other relief can be obtained if the mortgage fails.'"' Where defendant sets up a special defense to a forec-iosure bill, the burden of proof is upon him, and it must be clearly 1 ' ' Adair v. Adair, supra. 16 3 Wanzer v. Blanchard, 3 Mich. 11. i«* Canithers v. Hall, 10 Mich. 40. 1" Bailey v. Gould, Walk. Ch. 478. "=« Chase V. Brown, 32 Mich. 225 1" Hardwick v. Bassett, 25 Mich. 149 ; Morris v. Morris, 5 Id. 171 ; Shook V. Proctor, 27 Id. 349, 377; Matteson v. Morris, 40 Id. 52; Bishop v. Felch, 7 Id. 372. ' 1" Story's Eq. PI. | 257 ; Moran v. Palmer, 13 Mich. 372; Ford v. Loomis, 33 Id. 121; And see collection of cases innate to'X'hz.ya V. Lane, Walk. Ch. 200, annotated edition by Judge Campbell. '«» Converse V. Blumrich, 14 Mich. 109, Thayer v. Lane, supra. 448 BILtS TO FOKECLOSE MOKTGAGES. proveu.i ' " And the suit can only be defended on the ground set up in the answer, i ' ' Where complainant, in a cross-bill, sets up a defense, and offers no proof to sustain it, the complainant in the original bill is not obliged to tender evidence to disprove it.''^ The foreclosure of a mortgage cannot be defeated by pre- sumptions in favor of an issue made by a subsequent encum- brancer as to the ixssignment of the mortgage, if he had not relied upon the records or upon inquiry in taking an inteiest in the premises in suit, (a) In a foreclosure suit no decree should be rendered without the production in court of the mortgage and securities as evi- dence of the complainant's right, unless a sufScient excuse is shown for the non-production, and clear proof given of their continuing efficacy. ' ' * The law raises a presumption of payment when due, unless the securities are produced or accounted for.i''* A decree unappealed from is binding upon the parties; and when a party is not satisfied with it he must vindicate his rights in due season and in proper order. A matter once fully adjudicated, is conclusively adjudicated as against parties and privies.^ '^ The decree should follow the case pleaded, and the allega- tions of thebill.i^^ "° Sloan V. Holcomb, 29 Mich. 153; Suhr v. Ellsworth, lb. 57; Spear v. Hadden, 31 Id. 265. 1 ' ' Higman v: Stewart, 38 Mich. 519 ; Van Dyke v. Davis, 2 Id. 144 ; Con- nerton V. Millar, 41 Id. 612; Moran v. Palmer, supra; Wright v. Dudley, 8 Id. 115 ; Le Baron v. Shepherd, 21 Id. 263 ; Hess v. Final, 32 Id. 516. 1" Johnson V. VanVelsor, 43 Mich. 208. (a) Jackway v. Jenison [Oct. Term, 1882], 47 Mich. l'« Hungerford V. Smith, 34 Mich. 300; Young v. McKee, 13 Id. 552; Mickle V. Maxfield, 42 Id. 304. 1" Bailey v. Gould, Walk. Ch. 478; Bassett v. Hathaway, 9 Mich. 28. ' '= Hazen v. Reed, 30 Mich. 334; Wales v. Lyon, 2 Id. 275; Adams v. Cameron, 40 Id. 506; McKee v. Grand Rapids R. R. Co., 41 Id. 274; Egles- ton V. Knickerbacker, 6 Barb. 458. 1" Livingston V. Hayes, 43 Mich. 129; Thayer v. Lane, Walk. Ch. 200, and cases collected in annotated edition by yudge Campbell; Hay ward v. Nat. Bank,96U. S. 611. BILLS TO POEECLOSE MOETGAGES. 449 The validity of a decree of foreclosure cannot be attacked collaterally for mere irregularities not affecting jurisdiction. ^ '' ' Where outstanding creditors are not made parties to a fore- closure against property by which their own claims are secured, they are not concluded by the decree. ' ' * Where in a foreclosure bill, no allegations were made as to certain fixtures, claimed by third persons who were not made parties, the decree will not bind them. ^ ' » In the foreclosure of a mortgage drawn for a larger sum than the debt it secures, recovery should be confined to the correct sum.i*° A decree for the face of the bond with interest, when the bond is in double the sum owed, is a fraud on the defendant's rights, and entitles him to an injunction against a sale under such decree. '^ ' ' Where a complainant parts with his interest in a mortgage before answer, it is a good objection to the suit, and no subse- quent proceedings can be had on behalf of the assignee until properly brought before the Court.'* 2 g^^ jf ^^^ f^ct does not appear of record, and is not brought to the knowledge of the Court, it will not affect the proceedings on the decree.^** When defendants in a foreclosure suit neglect to appear after due service, the complainant can proceed ex parte with- out noticing the case for hearing, or placing it on the term calendar.!'* Defendants to a foreclosure bill, by allowing the same to be taken as confessed, admit nothing more than the case made by 1" Torrans V. Hicks, 32 Mich 307; Brown v. Phillips, 40 Id. 265 FDe- fect m notice.] "8 D.S. Bank. v. Truesdail, 38 Mich. 437. 1" Crippen V. Morrison, 13 Mich. 36; Wurcherer, v. Hewitt, 10 Id. 453. "0 Laylin v. Knox, 41 Mich. 40. '81 Scriven v. Hurst, 39 Mich. 98. ™ „"' ^^^^^ ^- ^- ^^- ^- ■^•' 10 Mich. 117; Cooper v. Bigly,13 Id. 478; Wallace v. Dunning, Walk. Ch. 416 ; Widner v. Lane, 14 Mich. 125 ; Perkins v. Ferkins, 16 Mich. 162 ; Brewer v. Dodge, 28 Id. 359 ; Mills v. Hoag, 7 Paige, 18. *" '" Bigelow V. Booth, 39 Mich. 622; Webster v. Hitchcock, 11 Id. 56. "* Warner V. Juif, 38 Mich. 662; Ch. Rule 15. 57 450 BILLS TO FORECLOSE MORTGAGES. the bill, and not any new agreement relied upon^ which appears in the proof only ; and a defense made by those who answered, showing affirmatively the extinguishment of the mortgage, constituting the only ground of relief set up in the bill, enures equally to the benefit of all the defendants. ^ * ^ Proof in a foreclosure case that the note sued upon does not belong to the complainant but to other parties who use hia name, entitles the defendant to the benefit of any defense he might have against the real owner.i*^ An agreement endorsed after maturity upon a note secured by mortgage, whereby purchasers of the mortgaged premises agree to pay a greater interest, is but a personal undertaking, not secured by the mortgage, even against the promisors.^ *' A second mortgagee who has foreclosed and bid in the property, succeeds to the mortgagor's rights, and can make any defense against the other mortgagee that the mortgagor could have made.^'* A foreclosure for ten dollars of interest, without calling on the mortgagor for payment, whereby large costs are made, is oppressive, and entitled to no favor, (a) Interest on Decrees. — Interest is allowable equally upon decrees and judgments.' * ' Under the provision of the law of 1869 [1 Comp. L. § 16371, compound interest is allowed upon installments of interest from the time it becomes due.i'" It is the practice in Michigan on foreclosure to allow a i»s McCabe v. Farnsworth, 27 Mich. 53. i»« Spear V. Hadden, 31 Mich. 266. 18' Spear v. Hadden, supra. i»8 Thompson v. Jarvis, 39 Mich. 689. (a) Louder V. Eurch [Oct. Term,1881], 47 Mich. 189 2 Comp. L., § 6087 ; Warner v. Juif, 38 Mich. 662. i»o Hoyle v. Page, 41 Mich. 535. -As a penalty : Heath v. Waters, 40 Id. 458. BILLS TO FOEEOLOSE MORTGAGES. 451 reasonable time for the payment of money definitely fixed by the decree. ^ ' ^ A guardian ad litem has no right to join in an answer to a foreclosure bill making admissions binding his ward.i'* lender. — A mortgage being but a lien upon the land, a ten- der of the full amount due after maturity and before foreclos- ure, extinguishes the lien, and the creditor loses his right to all collateral securities, though it does not release the debtor from his personal liability. And it is not necessary that the mortgagor should keep the tender good by a payment of the money into court. The rule would be different in an action at law upon the debt. ^ ^ ' A tender stops the interest. ^ ' * Where no objections were made to the tender on account of the quality of the money, or as to time, or amount, it will be heldgood.i»5 The tender of the amount due upon a mortgage entitles a mortgagor to a discharge, and the refusal makes the holder liable to the statutory penalty, and which may be recovered in a bill to redeem. ' ' ^ The evidence must be full, clear and satisfactory that it was made in good faith, and was understood by the holder of the mortgage to be a present, absolute and unconditional tender, 1" D. S. Bank v. Truesdail, 38 Mich. 430. j4s to Set Off, See Disbrow v. Jones, Harr. Ch. 102 ; Lockwood v. Beckwith , 6 Mich. 168 ; Hale v. Holmes, 8 Id. 37 ; McGraw v. Pettibone, 10 Id. 530 ; Griggs V. D. & M. R. W. lb., 117 ; D. & M. R. W. v. Griggs, 12 Id. 45 ; Brack- ett V. Sears, 15 Id. 244. '»2 Woodv. Truax, 39 Mich. 631. I " Van Husan v. Kanouse, 13 Mich. 306 : Caruthers v. Humphrey, 12 Id. 270; Flanders v. Chamberlain, 24 Id. 310; Lacy v. Wilson, lb. 479; Eslow V. Mitchell, 26 Id. 503; Cowles v. Marble, 37 Id. 160; Ligare v. Sample, 32 Id. 438. The effect is the same on mortgages of chattels : Fuller v. Parrish, 3 Mich. SU. Mechanics' Lien : Moynahan v. Moore, 9 Id. 9, and see note. !•* Cowles V. Marble, supra. "' Fosdick V. Van Husan, 21 Mich, 567; Wilson v. Wagar, 26 Id. 469; Flanders v. Chamberlain, 24 Id. 317. !•« Cowles V. Marble, 37 Mich. 160; Waiver, see "LiiCy v. Wilson, 24 Mich. 479 , Coots V. McConnell, 39 Id. 743. 452 BILLS TO FORECLOSE MORTGAGES. intended to be in fall payment and extinguishment of the mortgage, and not depending on his first executing a receipt or discharge, or any other contingency. ^ ^ ^ The holder is also entitled to a reasonable opportunity to look over the mortgage and accompanying papers, to calculate the amount due. And if such papers are not present, he will be permitted a reasonable time to obtain them.i^* Objection to the mode of tender must be made at the time of tender, and it does not remain in force if the payment is refused and received back.*'"' A mortgagee loses his lien by evading tender of payment. ^ " » Where one, who seeks to enforce a right to redeem from a prior mortgage, omits to keep good his tender in his bill, the omission only raises a question of costs. ^ " ^ Discharge of Mortgage : Penalty. — The statute provides that if any mortgagee, or his personal representative or assignee, after fuU performance of the conditions of the mortgage, whether before or after the breach thereof, or if the same be entirely due and payable after a tender of the whole amount so due and payable thereon, shall for the space of seven days after request, and after tender of his reasonable charges, refuse or neglect to discharge the same, he shall be liable to the mortgagor, his heirs, or assigns, in the sum of one hundred dol- lars, and also for all actual damages occasioned by such neglect or refusal to the person who shall perform the condition of such mortgage, or make such tender, or to any one who may have an interest in the mortgaged premises. 19' Potts V. Plaisted, 30 Mich. 149; Dodge v. Brewer, 31 Id. 227; Sagerv. Tupper, 35 Id. 134; Fry v. Russell, lb. 229; Procter v. Robinson, lb. 285; Brink v. Freoff, 40 Id. 610 ; Waldron v. Murphy, lb. 671, and cases cited. fs Potts V. Plaisted, supra. i"" Browning v. Grouse, 40 Mich. 339. «»» Ferguson v. Popp, 42 Mich. 115 ; Van Husan v. Kanouse, 13 Id. 303. »"i Lamb v. Jeffrey, 41 Mich. 720; WAere tender not held good, see Parks V. Allen, 42 Mich, 482; 2 Jones on Mortgages, § 901. BILLS TO FOEBCLOSE MOKTGAGES. 453 Such penalty and damages may be recovered in an action on the case or by bill in chancery, filed to procure a discharge thereof, with double costs, in the discretion of the Court. ^"^ Provision is also made for the filing of a bill for the dis- charge of mortgages which have been paid, and when the whereabouts ol the mortgagee or his assigns, is unknown.^os When there is an honest difference of opinion between the parties regarding their rights, the statutory penalty will not be enforced for a refusal to discharge a mortgage, (a) A court of equity has jurisdiction even though the amount unpaid and tendered was less than one hundred dollars.^"* The statute requiring the dismissal of all equity causes when the matter in dispute does not exceed one hundred dol- lars, is inapplicable -to foreclosure suits.^"^ Solicitors Fee. — Where, by stipulation, it is agreed that sev- eral suits pending shall be submitted on one brief, and should abide the decision of one, the prevailing party is entitled to tax as costs therein, a solicitor's fee in each case.^"' A -provision in a promissory note for an "attorney fee" in case of proc^dings to collect it, is a stipulation for a penalty, and is void.^" Where a mortgage empowered the mortgagee in the usual manner to sell, rendering the surplus, etc., and also a fixed sum for an attorney fee in case any proceedings should be taken to foreclose the mortgage, it was held that such fee was limited to the case of a foreclosure under the power of sale, that is, by advertisement and sale, and could not be recovered on fore- 2»2 2Comp. L 1871, ? 4246 ;Bamard v. Harrison, 30 Mich. 8; Collar v. Harrison, lb. 66 ; Lilly v. Gibbs, 39 Id. 396. = »s 2 Comp. L. 1871, 1 4247, as amended by Laws of 1877, p. 9. (a1 Burrows v. Bangs, 34 Mich. 304; Myer v. Hart, 40 Id. 517; Canfield V. Conkliug, 41 Id. 371. »"* Collar V. Harrison, 28 Mich. 518. ^"s 2 Comp. L. I 5059. s»« Chapaton v. Butler, 18 Mich. 337; Holbrook v.- Winsor, 25 Id. 211. ^i" Bullock V. Taylor, .S9 Mich. 137; Counsel fee in attachmint bond held valid, see Swift v. Plessner, 39 Mich. 178. 454 BILLS TO FOEECLOSE MORTGAGES. closure in equity. Had there been an independent covenant authorizing the recovery of the fee without regard to the mode of foreclosure, the construction might be different.^"* In Myer v. Sart,^"^ however, the Court say that a fixed attorney fee in a statutory foreclosure cannot be recovered. One reason being that the proceeding being ex parte, there is no way provided for taxing such attorney fee, or fixing the pro rata amount that should be paid in case a tender was made before sale. The Court say on page 524, " in the absence of legislation there is no way in which the attorney fee provided for in said mortgage can be apportioned, and that the full amount thereof could only be recovered if at ail, in case the property had been sold under the statute." ^ ^ " The reasoning of the Court, however, goes much further, and characterizes the claim as a stipulation for a penalty, and which will not be specifically enforced. The case of Chnfield v. Corikling, ^ ^ ^ a case in equity, is to the same effect. The Supreme Court of Iowa, in construing the clause, " if any proceedings are taken to foreclose," say that the word " foreclose," has reference to the final decree, and that no fee is taxable for any proceedings prior to the decree. ^ ^ ^ When the complainant conducts the suit himself, it would seem that he cannot recover the solicitor's fee provided for in the mortgage, even if it were otherwise valid.^is 8et-off.—A. party seeking to make a set-off in equity beyond that given by the statute, must affirmatively show the exist- ence of all those facts necessal-y to raise the equity. But a »»« Sage V. Riggs, 12 Mich. 313 ; Hardwick v. Bassett, 29 Id. 17. 2»9 40 Mich. 517 ; As to fee in irregular foreclosure, see Collar v. Harrison, 30 Mich. 66. 2'° Myer V. Hart. 40 Mich. 517; Jaquith v. Hudson, 5 Id. 123; Vosburgh V. Law, 45 Mich. 455. »ii 41 Mich. 371; And see Martin v. McMillan, 39 Id. 304, 517; Parks v. Allen, 42 Id. 482. ^^'^ Schmidt v. Potter, 35 Iowa, 426. For a collection of the cases, j« Jones on Mortgages, |§ 359, 1606. " 1 3 Patterson v. Conner, 48 Cal. 369. BILLS TO FOEECLOSE MORTGAGES. 455 court of equity will not allow a set-off in a case where the law would not, unless there be special equities growing out of the transaction itself, requiring it.^^* The party seeking relief must be the real owner and have control of the claim. ^ ' ^ But a bill to have a set-off allowed to a decree cannot be sustained where the demand would have constituted a defense in the former suit, and where it is not alleged that the facts to sustain it were then unknown.^ ^ ^ Where the purchaser gives a mortgage for the purchase money, on a foreclosure by the mortgagee who had covenanted against encumbrancers, the mortgagor may set-off the amount of said encumbrances paid by him, or show that he is in dan- ger of being damnified.^i^ Fixtures. — There is no universal test whereby the character of what is claimed to be a fixture can be determined in the abstract. Neither the mode of annexation, nor the manner of use is in all cases conclusive. It must usually depend on the express or implied understanding of the parties concerned.^^s Under our statute the mortgagor, until actual foreclosure, being entitled to the possession of the mortgaged premises, may make such arrangements for the use of the property as other owners might. ^ ^ ^ Still the mode and degree of annexa- tion may be such as to convert chattels into realty. 2^" = 1* 2 story's Eq. Jur. J 1435; Jones v. Disbrow, Harr. Ch. 101; Lock- wood v. Beckwith, 6 Mich. 168; Hale v. Holmes, 8 Id. 37; D. & M. R. W. v. Griggs, 12 Id. 45; Hendricks v. Toole, 29 Id. 340; Hackett v. Connett, 2 Edw. Ch. 73. 2" McGraw V. Pettibone, 10 Mich. 530; 2 Parsons on Contracts, 243. *!' McGraw v. Pettibone, supra. 2H- D. & M. R.W. V. Griggs, 12 Mich. 45; Griggs v. D. & M. R. W., 10 Id. 117 ; And see Hale v. Holmes, 8 Mich. 37; Brackett v. Sears, 15 Id. 244; Austin V. Dean, 40 Id. 386; Hess v. Final, 32 Id. 515. "18 2 Am. Lead. Cases 747 ; Crippenv. Morrison, 13 Mich. 23; Wheeler v. Bedell, 40 Id. 696; Ferris v. Quimby. 41 Id. 202; Bewick v. Fletcher, lb. 625; McAuliffe V. Mann, 37 Id. 539, 547 ; Badger v. Reade, 39 Id. 777 ; Robertson v. Corsett, lb. 778 ; IngersoU v. Barnes, [Oct. Term, 1881,] 47 Mich. ; Guthrie v. Jones, 108 Mass. 191 ; Brown v. Wallis, 115 Id. 156 ; McConnell v. Blood, 123 Id. 47; Sav. Bank v. Kercheval, 65 Mo. 682. '" Crippen v. Morrison, 13 Mich. 36. "» Coleman v. S. Man. Co , 38 Mich. 30; Strickland v. Parker, 54 Maine, 263; Brennan V, Whitaker, 15 Ohio St. 446; Jones on Mortgages, J 429. 456 BILLS TO FOEEOLOSE MORTGAGES. Intent, chiefly determines whether a chattel annexed to the realty for use becomes part of it where it is not shown that it was specially adapted for use there, or that the freehold is injured by its annexation and removal.^^i But machinery specially adapted for use in connection with the realty and put up for use, and actually used on it, and owned in common with the realty, is a fixture, however the parties may regard it.2 2 2 The consent of parties that will convert a chattel into an inseparable part of realty is the consent of the parties owning the chattel and realty respectively. ^ " * To constitute a fixture there must not only be physical annexation in some form, to the realty, but there must be unity of title, so that a conveyance of the realty would of necessity convey the fixture also. Hence, where land and machinery put upon it are held by diflferent titles, and other necessary machinery is subsequently attached to it, the latter partakes of the character of the original machinery and does not become part of the realty.^^* As a general rule the possession of a grantor or mortgagor is no notice to hii grantee or mortgagee that he claims any rights in the premises as against the conveyance he gives. But it would be otherwise as to tenants.^^^ Death. — The death of a party to a suit before it is brought up for hearing does not affect the validity of a deposition 821 Ferris v. Quinby, 41 Mich. 202; Coleman v. Steams Man. Co., 38 Id. 36 ; Murray v. Moross, 27 Id. 203 ; O'Brien v. Kusterer, lb. 289 ; Voorhees v. McGinnis, 48 N. Y. 278. «22 Lylev. Palmer, 42 Mich. 314; Morrison v. Berry, lb. 393; Fryatt v. Sullivan Co., 7 Hill, 529. « 2 » Morrison v. Berry, 42 Mich. 398 ; Reese v. Jared, 15 Ind. 142. 88* Adams V. Lee, 31 Mich. 440; Robertson v. Corsett, 39 Id. 778; Trap- pes V. Harter, 2 Cromp. & Mees. 153. sse Kerr V. Kingsbury, 39 Mich. 156; Bloomer v. Henderson, 8 Id. 395; Dawson v, Danbury Bank, 15 Id. 489. And see Stokoe v. Upton, 40 Mich. 581 ; Jones V. Detroit Chair Co., 38 Id, 92; Jones on Mortgages, J 600; Tyler on Fix- tures, 417, 453. BILLS TO FORECLOSE MORTGAGES. 457 taken during his life, nor exclude evidence of Ms own admis- sions.^^* Wliere an unnecessary party defendant dies after decree a discontinuance will be perniitted.227 Where a defendant in a judgment creditor's bill dies without answer or before the appointment of a receiver, the complainant loses his right to prosecute the suit.^^* Presumption of payment can never arise from lapse of time alone, short of the period of limitation fixed by law.^"^ Payment of a mortgage debt is not conclusively presumed from the lapse of many years, but there must be decisive proof that it is an existing lien to warrant a decree of foreclosure, (a) Where a defendant dies afber the submission of a cause the decree may be entered, nuinc pro tune, as of the day when the case was heard. ^^^ In the event of the death of the mortgagor, after payment of a decree for one instalment, and before proceedings for farther decree on a subsequent instalment, if a bill of revivor is not absolutely essential, averments of equivalent import by way of the statutory petition are at least requisite, and absent- ees must be brought in by publication. ^ ^ 1 The death of an assignee in bankruptcy of a subsequent mortgagee before decree, terminates the suit as to his rights.^ ^ ^ PersmuH Decree. — The statute authorizes a personal decree to be rendered in a foreclosure suit against the mortgagor of 22' Matson v. Melchor, 42 Mich. 477. 22 » Howe V. Lemon, 37 Mich. 164. 22 8 Jones V. Smith, Walk. Ch. 115. "9 Adair v. Adair, 5 Mich. 205 ; Abbott v. Godfroy's Heirs, 1 Id. 178 ; Mich. Ins. Co. v. Brown, 11 Id. 266 ; Curtis v. Goodenow, 24 Id. 18 ; Robinson V. Hoyt, 39 Id. 405 ; Gould v. Bailey, Walk. Ch. 478 ; 1 Sheldon v. Warner, 45 Mich. 638; Story's Eq. Jur., ?? 64o, 529; 2 Story's Eq. Jur., gj 1028a, 1028*, 1519. (a) Cowie v. Fisher, 45 Mich. 629; Butler v. Hogadone, lb. 390. 2'° Gunderman V. Gunnison, 39 Mich. 318, and cases cited; Freeman on Judgments, §§ 56, 57 ; Wood v. Keyes, 6 Paige, 478. 2 01 Brown v. Thompson, 29 Mich. 72; 2 Comp. L. 1871, § 5103. 282 Avery v. Ryerson, 34 Mich. 363. 58 458 BILLS TO FORECLOSE MORTGAGES. any balance of the mortgage debt that may remain unsatisfied after sale, in the case where such balance is recoverable at law.^^* It also provides for rendering a decree against third per- sons who have secured the payment of the mortgage debt for the payment of any balance remaining unsatisfied after sale. - ' * It is based upon the principle that the grantee becomes the principal debtor, and the grantor his surety ; and in accord- ance with the principle which in equity entitles the chief cred- itor to receive the benefit of a security held by a> surety, the mortgagee creditor is entitled to the benefit of the agreement made by the purchaser of the equity of redemption.'^^ But when the undertaking is not for the payment of the mortgaged debt, but purely collateral, no personal decree can be rendered.^ ^^ A personal decree cannot be made against parties not per- sonally served, or not submitting voluntarily by appearance, or those brought in by publication.^^' A married woman cannot be made personally liable on a joint mortgage with her husband.^ ^ * Ko decree can be made against infants, or those brought in by publication without fiiU proofe, and no one can give away "» 2 Comt). L. 1871, | 5148. 2s* 2 Comp. L. 1871, ? 5150; Burr v. Beers, 24 N. Y. 178. 886 Crawford v. Edwards, 33 Mich. 355; Miller v. Thompson, 34 Id. 12; Higman v. Stewart, 38 Id. 523; Hicks v. McGarry.Ib. 667; Booth v. Conn. M. L. Ins. Co. 43 Id. 299; Cumberland v. Codrington, 3 Johns. Ch. 254; Gamsey V. Rogers, 47 N.Y. 233; Hoft's Appeal, 24 Pa. St. 205; Curtis v. Tyler, 9 Paige, 435 ; Halsey v. Reed, lb. 451 ; 2 Wash, on Real Prop. 193. 2 8 6 Joy V. J. & M. Plank R., 11 Mich. 155. -^ " 8 ' Lawrence v. Fellows, Walk. Ch. 468 ; Outhwite v. Porter, 13 Mich. 533 ; Tyler v. Peatt, 30 Id. 63 ; Lillibridge v. Tregent, lb. 105 ; Innes y. Stewart, 36 Id. 285 ; McEwan v. Zimmer, 38 Id. 765 ; Booth v. Conn. M. L. Ins. Co., supra. S38 Howe V. Lemon, supra ; 2 Comp. L. 1871, ? 4208. Construction of bond conditioned to pay decree if injunction dissolved: Rynearson v. Fredenburg, 42 Mich. 412. BILLS TO FOEECLOSE MOETGAGES. 459 or lose an infant's rights.^ '^ No decree can be made against Mm upon a bond made by his guardian.^*" Where an infant's mortgage was foreclosed after she became of age, and a decree, j^ro confesso, entered, she was not permitted to defend against a subsequent bill brought by an assignee to enforce such decree.^*' A complainant cannot avail himself of an agreement made between an infant defendant and his co-defendant by which a personal decree might be made against the infant. ^^'^ A guarantor of collection of a debt secured by mortgage creates no obligation on the part of the guarantor to pay until after foreclosure and failnre to obtain payment out of the mort- gaged premises and of other property of the principal. ^^s Where mortgagees assigned as collateral one of several notes secured by the mortgage, and filed a bill to foreclose, it was held competent on a cross-bill by said assignee to render a personal decree for deficiency against the assignor (the mort- gagee.) 2 * * Where, in pursuance of an agreement, that the premises were to be bid off for a certain sum, the defendant did not appear at the sale, and the premises were struck off at a smaller sum, a decree for deficiency was denied, (a) Where a party by his conduct interferes to prevent a fair sale, he will be denied a decree for deficiency, and will be enjoined from proceeding to collect it at law. (J) [See execution of decrees.] Writ of Assistance. — [See Sales.] "« Ballentine v. Clark, 38 Mich. 395; Thayer v. Lane, Walk. Ch. 200; Chandler v.McKiuney, 6 Mich. 217; Smith v. Smith, 13 Id. 258; Woodv Truax 39 Id. 628. ' 2*° Woodv. Truax, supra. 2 * 1 Terry v. McClintock, 41 Mich. 493 ; see Minock v. Shortridge, 2 1 Id, 305. ^■"i Woodv. Truax, supra. "3 Johnson V. Shepard, 35 Mich. 115. "* Wilcox V. Allen, 36 Mich. 160. (a) Smith v. Smith [June Term, 1881] 46 Mich. (i) Innes v. Stewart, 36 Mich. 285. 460 BILLS TO POEEOLOSE MOETG-AGES. ApplicaMon of Proceeds of Sale and 8m-plus. — The proceeds of every sale made under a decree in Chancery must be applied to the discharge of the debt adjudged by such court to be due, and of the costs awarded ; and if there be any surplus, it must be brought into court for the use of the defendant, or of the person entitled thereto, subject to the order of the Court. ''^^ Where one of two notes of like date secured by mortgage was also secured by a surety, on foreclosure the one secured by the mortgage only, must be first satisfied before the pro- ceeds of a sale of the land can- be applied to the payment of the other.(a) If such surplus, or any part thereof, shall remain in the said court for the term of three months without being applied for, the Circuit Judge may direct the same to be put out at interest, under the direction of the Court, for the benefit of the defendant, his representatives or assigns, to be paid to them by the order of such Court.^*^ On the coming in and confirmation of the commissioner's report of the sale of mortgaged premises, if it shall appear there is any surplus money remaining in Court after satisfying the amount due the complainant, any defendant, upon filing an affidavit that such surplus has been paid into Court, and that he is entitled to the same or some part thereof, may have an order of course, referring it to a commissioner to ascertain and report the amount due to such defendants, or to any other per- son, and which is a lien upon such surplus moneys ; and to ascertain the priorities of the several liens thereon; to the end that on the coming in and confirmation of the report, such fur- ther order and decree may be made for the distribution of sur- plus moneys, as may be just. Every defendant who has appeared in the cause, and every person who has left a written notice of his claim to such sur- plus moneys with the Eegister, or assistant Eegister, where the "5 2 Comp. L. 1871, § 5155; Shepardv. CNeil, 4 Barb. 125; Denton v. Nanny, 8 Id. 618. («) Hanford v. Robertson, [Oct. Term, 1881.] 47 Mich. s" 2 Comp. L. 1871, § 5156 ; Rogers v. Ivers,30N. Y. 424. BILLS TO FORECLOSE MORTGAGES. 461 same are deposited, shall be entitled to notice to attend the commissioner on such reference. And any person making a claim to such surplus moneys, and who shall fail to establish his claim on the hearing before the commissioner, may be charged with such costs as the other parties may have been subjected to by reason of such claim. The parties succeeding on such reference, may be allowed such costs as by the Court may be deemed reasonable ; but no costs unnecessarily incurred on such reference or previous thereto, by any of the parties, will be allowed on taxation or paid out of such surplus. ^*^ Who JErttitled to Notice. — Where an application is made for the surplus money after satisfaction of a decree of foreclosure, all the parties to the foreclosure suit are entitled to notice, in order that they may appear and contest the right of the appli- cant and assert their own ; and an order for payment of such money without notice to the parties, or an appearance by them, is erroneous, and will be reversed. 2*' The surplus money remaining in Court upon a sale under a decree of foreclosure after satisfying the decree, is' personal estate ; and if the owner of the equity of redemption dies sub- sequent to the sale, his personal representatives should be made parties to a petition for such surplus.^*' Who Not Entitled to. — ^Where the mortgagee of lands had obtained a decree of foreclosure, by virtue of which the prop- erty had been sold, and being also a judgment creditor of the mortgagor, had an execution levied on the mortgaged premises, 21' Ch. Rule 93; 2 Comp. L. 1871, §§ 5155, 5156. Note. — Under Rule 83 of the _U. S. Equity Practice, parties had one month from the time of filing the report to file exceptions thereto. And if none are filed, the report will stand confirmed on the next rule day after the expiration of the month. U. S. Circuit Rule 19 provides for the usual order nisi of eight days on the filing of the report ; but as it conflicts with the foregoing rule, adopted by the U. S. Supreme Court, it is clearly without validity. **' Smith V. Smith, 13 Mich. 258; As to surplus in foreclosure by advertise- ment, see Laws of 1877, Act 115. ^*' Smith V. Smith, supra; Bogert v. Furman, 10 Paige, 496: Sweezey y. WilUs, 1 Bradf. 495. 462 BILLS TO FORECLOSE MORTGAGES. — to which, however, the mortgagor had no title at the time of the levy — it was/ held that he was not entitled to an order for the surplus money remaining in court after satisfaction of the decree, even though the mortgagor, during the pendency of the foreclosure suit to which he was a party, and prior to the decree and sale thereunder, had become the owner of the equity of redemption. 2^" SECTION VI. • EXECUTION FOR DEFICIENCY. The Court is authorized not only to direct a sale of the mortgaged premises, and to compel the delivery of possession to the purchaser, but on the coming in of the report of sale to decree payment by the mortgagor of the balance of the mort- gage debt, if any shall remain, after a sale of the premises, and to issue the necessary execution as in other cases against other property of the mortgagor. ^ ' 1 1 If the mortgage debt is secured by the obligation or other evidence of debt, of any other person besides the mortgagor, a like decree for deficiency may be issued against them if made parties to the bill.^^^ This proceeding is an innovation upon the original equita- ble jurisdiction. It is essentially new, and supplementary, and not a mere continuation of the foreclosure. The action authorizing the issuing of an execution is based upon the con- firmation of a report of deficiency, and though a contingent provision, is often improperly incorporated in tlie original " ^ " Smith V. Smith, supra. 2512 Comp. L. 1871, § 5148. For U. S. Ct. Prac, see Eq. Rules 92 and 5. "2 2 Comp. L. 1871, ? 5150, BILLS TO FORECLOSE MORTGAGES. 463 decree. It is as distinct a proceeding as a sdri facias for farther breaches of a bond.^^^ Execution should not be awarded in a decree for sale on foreclosure so long as it is not known that there will be a defi- ciency. And it cannot be issued without special application to the Court, setting forth the facts, and notice to the defend- ant, but not to the purchaser. ^ ^ * The jurisdiction over persons who have become liable on the debt is. not obligatory, but permissive only. When justice requires that the party shall have an oppor- tunity to defend himself at law, or to seek redress in any other form against his liability. Courts will refuse a personal decree.^ ^^ Practice. — In case of an application for an execution for the collection of a deficiency on a mortgage foreclosure, the proper practice is to make a sworn petition reciting briefly the facts giving the right to an execution and praying the Court to direct its issue. It should be personally served upon the party against whom execution is sought, with notice of the time when it will be presented. If personal service is impractica- ble, the Court, on a showing of the facts, may direct substitu- tuted service. If the defendant on being brought in, desires to contest the application, he should file his answer under oath, setting out the grounds of his objections. The grounds set forth must not be inconsistent with the decree, as its validity or justice cannot be inquired into on such application. ^ ' * {8ee . Execution of Decree, Ante 204.] ass Johnson v. Shepard, 35 Mich. 122; Mickle v. Maxfield, 42 Id. 304 Laws of 1833, ? 37; Rev. Stat. 1838, p. 376, § 105; 2 Comp. L. 1871, I 5148 Dunkley v. Van Buren, 3 Johns. Ch. 330 ; Brown v. Thompson, 29 Mich. 72 Howev. Lemon, 37 Id. 164. ^^* Howe V. Lemon, supra; Gies v. Green, 42 Mich. 107, = 5" Johnson v. Shepard, supra; N. A. Ins. Co. v. Handy, 2 Sanf. Ch. 492 ; Withers v. Morrell, 3 Edw. 560. See discussion as to making personal decrees against collateral guarantors. Vanderkemp v. Shelton, 11 Paige 28; Barman v. Carhartt, 10 Mich. 339; Joy V. J. & M. Plank R. 11 Id. 155; Johnson v. Shepard, supra. '" Ransom V. Sutherland, [July Term, 1881,] 46 Mich. CHAPTEE XL. BILL TO EEDEEM. Section 1. Nature of. 2. Who may Redeem. 3. Within what Time to be Filed. 4. Parties. 5. The Bill. 6. Terms of Redemption. 7. Decree. SECTION I. NATXnJE OP EQUITY OF REBEMPTION, The equity doctrine is that the mortgage is a mere security for the debt, ^.nd hence but a chattel interest, and that iintil 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 accordiugly held to be descendible by inheritance, devisable by will, and alienable by deed precisely as if it were an abso- lute estate of inheritance at law.^ So inseparable is the equity of redemption from a mortgage that it can not be dissevered even by express agreement of the parties ^ : And it may be sold on execution.^ 1 4 Kent Com. Lecture 58, marg. p. 160 ; Clark v. Beach, 6 Conn. 142 ; Kiune v. Smith, 2 Greene, (N. J.) 14; 2 Story Eq. Jur. |g 1015, 1016. = 2 Story's Eq. Jur. § 1019 ; 4 Kent Com. 142 to 144; Holridge v. Gillespie, 2 Johns. Ch. 33, 34. 8 2 Comp. L. 1871, ?? 4668, 4664; Gorham v. Arnold, 22 Mich. 247. Ex- ecution cannot be levied on premises where debt is secured by mortgage : 2 Comp. L. 1871, ? 4667. 464 BILL TO EEDEEM. 465 The mortgage is not only considered as personal estate of the mortgagee, but the debt is also treated as the personal estate of the mortgagor.* Deed Absolute on its Face, when treated as a Mortgage. — Where a deed absolute in form is intended by the parties to operate only as a security for the payment of a debt, equity will treat it as a mortgage, and parol evidence is admissible to prove said intention, and the grantor may redeem. ^ But evidence of the understanding must be clear and dis- tinct, and of such a nature as in a court of equity will control the operation of the deed, and leave no doubt regarding the precise terms of the arrangement. The burden of proof is on the grantor.^ In Johnson V. Van Velsor,'' the Court say that wherever the controversy allows a party to control by parol evidence the operation of an instrument which is made and held out as an absolute conveyance, and to show the transaction to have been only a mortgage, it will require the proof to be clear and convincing, and will not be satisfied with mere general declarations by the party setting up the claim. * Kent's Com. supra. 6 Comstock V. Howard, Walk. Ch. 110; Wadsworth v. Loranger, Harr. Ch. 113, 150; Wetherbee v. Brooks, 22 Mich. 311 ; Batty v. Snook, 5 Id. 231 ; Em- f!°^7^ Atwater, 7 Id. 12 ; Cowles v. Marble, 37 Id. 159 ; Barber v. Milner, 43 Id. 248 ; Lmdauer v. Cummings, 57 111. 195. ' Van Wert v. Chidester, 31 Mich. 209 ; Streeter v. Tilden, 45 Id. 533; Rowland V. Blake, 97 U. S. 624, 626; Haines v. Thompson, 70 Pa. 434; 1 Jones on Mortg. (2d ed.) g 326, and cases. Note.— 5«r<^^« of J'rao/.— When a p'ima facie right is disputed the burden ot proof IS on the attacking party. For illustrations of the rule see Schwarz v. Wendell, Walk. Ch. 267; Johnson v. Johnson, lb. 331; Bishop v. Felch, 7 Mich 311 ; Wales v. Newbould, 9 Id. 45 ; Fanners' & Mec. Bank v. Bronson, 14 Id. 361 ; Hardwick v. Bassett, 25 Id. 149 ; Shook v. Proctor, 27 Id. 349 ; Shook y Proctor, 27 Id. 377; Bristol v. Braidwood, 28 Id. 191 ; Stewart v. Ashley, 34 Id. 183 ; Perrett v. Yarsdorfer, 37 Id. 596; Darling v. Hurst, 39 Id. 765 ; Mat- l*^°",7;j "'^' ^'^ '^^- ^2' Hammontree v. Lott, 40 Id. 190 ; Rath v. Vander- lyn, 44Id. 597; Gibbons v. Dunn, [June Term, 1881] ; Walker v. Det. Trans. Co., [January Term, 1882,] 47 Id. ' 43 Mich. 214; Howard v. Harris, and notes, 8 Lead. Cases in Eq. 869, 752 ; Campbell v. Dearborn, 109 Mass. 180. 59 466 BILL TO EEDEEM. A subsequent bona fide purchaser without notice, however, would not be affected by such understanding.* In dovibtfal cases, courts of equity incline to construe a deed iiMh a condition, to be a mortgage.' But though a deed absolute in form but intended as a security, will leave in the grantor the right of a mortgagor to redeem, it does not fol- low that he would be entitled tc) maintain possession until foreclosure.^ *• SECTION II. WHO MAT EEDEEM. Any one who has any interest in mortgaged premises or in any part of them, is entitled to redeem them from foreclosure, and he must redeem completely, if at all. The equity of redemption is not only a subsisting estate in the land in the hands of the heirs, devisees, assignees and representatives, but it is also in the hands of any other persons who have acquired any interest in the mortgaged premises by operation of law or otherwise, in privity of title. ^^ Such persons have a clear right to relieve the property from all incumbrances in order to make their own claims beneficial or available; When any such person does so redeem, he becomes substituted to the rights and interests of the original 8 See yuci£^e Cooley's note to Thompson v. Mack, Harr. Ch. 130, 2nd Ed.; Bennet v. Robinson, 27 Mich. 26; Jeffery v. Hursh, 42 Id. 565. 9 Swetland v. Swetland, 3 Mich. 482. And see Cornell v. Hall, 22 Id. 3771 for full discussion. And see Batty v. Snook, 5 Mich. 231 ; Enos v. Sutherland, 11 Id. 538; Maynardv. Pereault, 30 Id. 160; Briggs v. Hannowald, 35 Id. 474; Abbott V. Gregory, 39 Id. 68; State Bank v. Chapelle, 40 Id. 448; Rosenthal v. Scott, 41 Id. 635. " Wetherbee v. Green, 22 Mich. 311. 11 Powers V. Lumber Co., 43 Mich. 468; And see Baker v., Pierson, 6 Id. 522; Lamb v. Jeffrey, [October Term, 1881.] 47 Mich. BILL TO EEDEEM. 467 mortgagee in the land. But no person except a mortgagor, his heirs or privies in estate has a right to redeem, unless it can be shown that there is collusion between them and the mortgagee.^ ^ The following cases illustrate the rule as adopted by the Supreme Court of Michigan : A court of equity will not lend its aid to enforce the right of a volunteer to pay off the mortgage on the lands of another.^ * No one can redeem a mortgage who shows no subsisting legal or equitable right in or to the estate, or any lien or charge upon it. There must be an interest in the land, and it must be derived in some way mediate or immediate, from or through, or in the right of the mortgagor, so as in effect to constitute a part of the mortgagor's original equity of redemption, i* Where a subsequent purchaser has his deed recorded before the prior mortgage, but has not paid value in such a manner as to be held a 6orea_^(fe purchaser as against such mortgage, yet as in a foreclosure suit on such mortgage, the validity of the deed as between the parties thereto cannot be attacked, he is entitled to redeem.^ ^ A mortgagor who wishes to test the validity of a statutory foreclosure must file a bill to redeem, and not to set aside the sale, and have the property resold, even though the mortgagee may have abused the power to sell, and purchased the prop- erty himself. 1' In a bill to redeem after statutory foreclosure, in the absence of any averment or proof, it is not a presumption of " 2 Story Eq.Jur. g 1023; 4 Kent Com. Lee. 58, p. 162-3; F.& M. Bank V. Branson, 14 Mich. 360. IS Smith V. Austin, 9 Mich. 465 ; Smith v. Austin, U Mich. 34; Hanvood V. Underwood, 28 Id. 427; 2 Story's Eq. Jur. ? 1023; Adam's Eq jur. 296; 1 Dan. Ch, Pr. 369 to 371 ; Story's Eq. PI. g 258, and note and see § 241 ; Doug- lass v. Sherman, 2 Paige, 358 ; Eaton v. North, 25 Wis. 514; Cousins v. Allen, 28 Id. 232 ; Byington Bookwalter, 7 Iowa, 512 ; Penn v. Clemans, 19 Id. 372. '* Smith V. Austin, supra. " Stone V. Welling, 14 Mich. 514. 1° Goodenowv. Curtis, 33 Mich. 505, [overruling Schwarzv. Sears, Walk. CK] Goldsmith v. Osborne, 1 Edw. 560, 468 BILL TO BEDEEM. law that the mortgagee purchaser did not pay over to the officer any illegal allowance claimed by him in the form of an attorney, (a) The vendee of an equity of redemption stands in the place of the mortgagor, and holds the property subject to all incum- brances ; and where there are two mortgages, and the mort- gaged premises had been sold by foreclosure, at law, on the first mortgage, on the payment of the redemption money by such vendee, and the assignment to him by the purchaser at the mortgage sale of all the interest of the latter in the land, such vendee cannot claim the rights of the purchaser at the sale for the purpose of defeating the second mortgage. ^ ' When a subsequent mortgagee pays the redemption money of the mortgaged premises to the purchaser, under the fore- closure of a prior mortgage, he does not succeed to the rights of such purchaser, but stands in the place of the prior mort- gagee, the only additional right which he acquires being the right "to be reimbursed what he has paid, with interest, on foreclosing his own mortgage.^* When a mortgagor redeems, it should always be construed as a payment, he being personally liable for the debt. But when his vendee redeems, who is not personally liable, and there is an intervening mortgage between the one redeemed by him and his equity of redemption, the same rule should prevail as in case of a redemption by a subsequent mort- gagee, i' The redemption must be of the entire mortgage and not by parcels. He who redeems must pay the whole debt. There- fore an owner of part of an estate mortgaged cannot separately redeem his part. The whole' mortgage must be paid.^ " (a) Millard v. Truax, [October Term, 1881,] 47 Mich. 1' Johnson v. Johnson, Walk. Ch. 331. * ' Johnson v. Johnson, supra, ' • Johnson v. Johnson, supra. »" Palk V. Clinton, 13 Ves, 59; Calkins v. Munsel, 2 Root's Rep. 333, BILL TO EEDEEM. 469 A junior incumbrancer may redeem a prior mortgage, and under certain circumstances, may become entitled by subroga- tion to the rights of the senior mortgagee.^ * It often occurs that in enforcing the right of redemption a Court of Equity is obliged to marshal the burden according to the equity of different claimants.^'' A guardian has the right to redeem his ward's lands from a mortgage sale.^* A subsequent mortgagee may redeem a prior mortgage which has been foreclosed by advertisement under the stat- ute.^* A second mortgagee is entitled to redeem from a prior mortgage, and have the benefit of an assignment of the mortgage. 2^ But his right to redeem from the foreclosure of a prior mortgage, is barred if he allows the foreclosure to become absolute. ^^ Where a mortgage of indemnity is foreclosed at law, before the mortgagee has been damnified, the mortgagor is not entitled to redeem.^' SECTION III. "WITHIN WHAT TIME TO BE FILED. A bill to enforce a lien for redemption from a mortgage can be filed at any time after the lien becomes fixed, and must bring in all subsequent liens or titles. s ' Jenkins v. Cont. Ins. Co., 12 How. Pr. 66. " 4 Kent. Com. Ch. 62, p. 445. *» Marvin V. Schilling, 12 Mich. 356. 2 4 Carter v. Lewis, 27 Mich. 241. '^ Lamb v. Jeffrey, 41 Mich. 719; Sager v. Tupper, 35 Id. 134. " Gantz V. Toles, 40. Mich. 726. »' Thurston v. Prentiss, Walk. Ch. 529. 470 BILL TO EEDEEM. A lien for redemption money is an independent equity, and not merely appurtenant to the moitgage held by a mortgagee who has redeemed; so that proceedings to enforce the lien may be taken before such mortgage matures, and the discharge of the mortgage does not cut off the lien.^* As a general rule there can be no redemption of a mortgage after twenty years from the time of the forfeiture, or of actual quiet and undisturbed possession, unless circumstances are proven by the mortgagor showing acknowledgment of his title by the mortgagee, or unless the mortgagor has labored under some impediment.^' [/See _p. 457, note 229.] It is a general principle that no lapse of time will bar the right of a mortgagor to redeem, so long as the mortgage has been treated by the parties as a subsisting mortgage and secu- rity only,^" or when there is fraud in the transaction. Eedemption will not be allowed before the time specified in the mortgage, even on tender of the principal and interest to the stipulated time of payment, and costs. ^^ The time of redemption is governed by the law in force at the date of the execution of the mortgage. ^^ A mortgagor may redeem from a foreclosure sale within the proper period without the aid of a bill in equity.'* A second mortgagee will not be permitted to redeem where more than twenty, years have elapsed since the right to redeem accrued, whether the premises had been occupied under the first mortgage for twenty years or not, especially when the rights oi bona fide purchasers had intervened.^* «8 Powers V. Lumber Co. 43 Mich. 468. 28 Mich. Ins. Co. v. Brown, 11 Mich. 265; Curtis v. Goodenow, 24 Id. 18 ; Goodrich v. Leland, 18 Mich. 117; Moore v. Cable, 1 Johns. Ch. 385; Demarest V. Wyncoop, 3 lb. 129; Whiting v. White, Coop. 4; Barron v. Martin, 19 Ves. 327. 8 Calkins v. Calkins, 3 Barb. 305; S. C. Affirmed, 20 N. Y. 147; Marks V. Pell, 1 Johns. Ch. 594. 81 Abbe V. Goodwin, 7 Conn. 377. »2 Cargill V. Power, 1 Mich. 369 ; Bronson v. Kinzle, 1 How. 311. 8s McHugh V. Wells, 39 Mich. 175. 8 4 Cook V. Finkler, 9 Mich. 131. BILL TO REDEEM. 471 A mortgagor seeking to redeem from a sale of the premises by the mortgagee, under a power in the mortgage, on the alleged ground of defective notice, must file his bill in reason- able time, and in such case must tender the whole of the mort- gage money, not merely the amount of sale.* ^ SECTION IV. PARTIES. Parties CJomplmnant. — If the mortgagor bring the bill against the mortgagee, there having been no death or assignment on either side, and no other circumstances to affect the case, no other persons but them need be made parties. If the mortga- gor be dead, then his heir or his devisee, if the estate has been devised, is the proper party to redeem, if it be a mortgage in fee ; and if a mortgage for a term of years only, then the per- sonal representatives of the deceased.** If the bUl 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, are necessary parties to take the account of what is due on the mortgage.*^ As the personal assets are usually first to be applied in exoneration of the real estate mortgaged, 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.** »5 Hamilton v. Lubukee, 51 111. 415 ; Collins v. Riggs, 14 Wall. 491. «• Story's Eq. PI. \ 182; Sutherland v. Rose, 47 Barb. 145; Where objec- ' tionnot taken until hearing, see Enos v. Sutherland, 11 Mich. 538. " Story's Eq. PI. ? 182. 88 Story's Eq. PI. lb.; Story's Eq. Jur. g 571 ; Cumberland v. Codrington, 3 Johns. Ch. 257. 472 BILL TO REDEEM. WTien the mortgagor has conveyed the estate subject to the mortgage, and the grantee has assumed its payment, he may maintain a suit to redeem without making the mortgagor a party. But if the premises are conveyed with a covenant against incumbrances, then the mortgagor is a proper party that he may be bound by the decree, he being primarily liable to discharge the mortgage. 8 8 If a mortgagor has conveyed his equity of redemption to trustees for the benefit of creditors, the trustees alone are generally the proper parties to a bill to redeem, unless in case of collusion with the mortgagor.*" To a bill brought by subsequent mortgagees to redeem, the mortgagor or his heir, or other proper representative in the realty, is a necessary party, for the natural decree in such a case is that the second mortgagee shall redeem the first mort- gagee, and the mortgagor or his representative in the realty shall redeem the second, or stand foreclosed.* i And a court of equity in such a case endeavors to make a complete decree that shall embrace the whole subject and determine upon the rights of all the parties interested in the estate.*" But in such a case the personal representative of the mortgagor would not be a necessary party, though he might be a competent one.* ^ Parties Defendants. — In general terms it may be stated that all persons ought to be made parties whose interests or rights may be affected by the decree. The mortgagee is of course the only necessary and proper party in all cases, when there is no other outstanding interest under him. If the mortgage is in fee, and the mortgagee is dead, the heir at law of the mortgagee or other person in »9 Story's Eq. PI., §183. " Story's Eq. PI. lb., g 183; Cooper's Eq. PI. 175; Troughton v. Binkes, 6Ves. 573. r -i , s " Story's Eq. PI., § 186. *^ Fell V. Brown, 2 Bro. Ch. 278 ; Palk v. Clinton, 12 Ves. 58, 59. *' Fell V. Brown, supra; And see Calvert on Parties, 18. BItL TO EEDEEM. 473 whom the legal estate is vested, by devise or otherwise, must be made a party because he has the legal title and is to be bound by the decree. And the personal representative of the mortgagee also, must be made a party, because, generally, he is entitled to the mortgage money when paid, as it is to be returned to the same fund out of which it originally came.** But if the mortgage is of a term of years created by the owner of the fee, the personal representative of the mortgagee only, without the heir at^ law, is the proper party, for he alone is interested in the term, unless it has been disposed of in favor of third persons, in which case they should be made parties.** When tiie mortgage has been absolutely assigned by the mortgagee without the authority and privity of the mort- gagor, it is not necessary, in a bill brought by the latter to redeem, to make any person but the last assignee a party, how- ever many mesne assignments may have been made, for in such a case the last assignee is understood to have contracted not only to represent the original mortgagee, but also to stand in his 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.* * When the assignments have been made with the authority and privity of the mortgagor, it will depend upon circum- stances whether any intermediate assignees should be made parties, that is to say, whether they have any valid interests that should be protected.*' But when the mortgagor seeks in his bill an account of rents and profits, or other sums received by the mortgagee before the assignment, tbe mortgagee should be made a party as well as the assignee.* ' «* Story's Eq. PI. § 188; Cooper's Eq. PI. 37; Dexter v. (Arnold, 1 Sumn. 109. « Story's Eq. PI. ? 188; Cooper's Eq. PI. 37. *« Story's Eq. PI. | 189; Chambers v. Goldwin, 9Ves. 268; Lennon v. Porter, 2 Gray, 473. •" Story's Eq. PI. ? 189. i *8 Story's Eq. PI. ? 190; Lowther v. Carlton, 2 Atk. 139. 60 474 BILL TO REDEEM. WLen the mortgagee has not assigned his whole interest in the mortgaged property, but retains an interest in it in part, he is a necessary party as well as the assignee, to a bill to redeem.*' So where there are successive mortgages, the second embracing a part only of the estates comprehended in the first, if the second mortgagee brings in a bill to redeem the first mortgagee, 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, for they are all interested in taking the account.^" When the mortgagee has assigned his whole interest upon certain trusts, the trustee and cestuis que trusts are equally nec- essary parties to the bill to redeem.*^ SECTION V. THE BILL. A bill to redeem may be framed with a double aspect, so that the complainant may avail himself of a tender if his proof thereon shall be suflcient, or, failing in that, pray an account, and be permitted to redeem. It is proper that the prayer be in the alternative. ^^ Where a person other than the mortgagor files a bill to redeem mortgaged premises, the bill must show that complain- ant has some title or interest in the land, derived immediately 4» Hobart v. Abbot, 2 Pr. Will. 643; Norrish v. Marshall, 5 Mad. 475; Story's Eq. PI. J 191. »» Palk V. Clinton, 12 Ves. 48; Story's Eq. PI. g 191. » 1 Drew V. Harman, 5 Price, 319 ; Story's Eq. PI. g 192. " Gooding v. Riley, 50 N. H. 400. BILL TO REDEEM. 475 or remotely through the mortgagor, or in some way springing out of his general equity of redemption. And it must show the nature and derivation of the title or interest claimed, that defendant may, by his answer, admit or deny it, and be pre- pared to meet it in evidence, or refer the question of its suffi- ciency to the Court by demurrer. ^^ Where, therefore, a bill to redeem by a person other than the mortgagor, only stated that complainant, after the giving of the mortgage, became interested in the land by contract, but without setting out the contract, or stating the parties or its terms, or the interest contracted, it was held insufficient, s* In a bill by a mortgagor for relief against a statutory fore- closure for a sum larger than was due upon the mortgage, an offer to redeem is not indispensable where the defendant has not been misled.^ ^ An objection to a bill to redeem by an assignee in bank- ruptcy, that it is not shown that the assignee obtained permis- sion to bring the suit from the Court of Bankruptcy, if of any force in any event, will not be considered unless it is pleaded.'* Where the bill was not filed until thirty-four years after the maturity of the mortgage, and which it alleged remained unpaid twenty-four years after the grantee conveyed the prem- ises, the party seeking to redeem must show affirmatively in his bill such facts as will establish the instrument.'^ " Smith V. Austin, 9 Mich. 465. " * Smith V. Austin, supra. " Sandford v. Flint, 24 Mich. 27. 5« Avery v. Ryerson, 34 Mich. 362. »' Reynolds v. Green, 10 Mich. 355; Hoffman v. Harrington, 33 Id. 392. 476 Iml, TO EEDEEBt. SECTION VI. TEEMS OF EEDEMPTION. A mortgagor cannot redeem without paying what is really due ; and when a mortgagee buys in an incumbrance he will be allowed as against the mortgagor all that is due upon it, although he bought it for less. It is otherwise if the heir or trustee of a mortgagor buys in an incumbrance as against sub- sequent incumbrancers and creditors, in which case he can only be allowed what he has paid for an incumbrance.** A mortgagor filing a bill to redeem must pay the costs of persons defendants claiming under the mortgagee.*' As a general rule a party seeking to redeem pays costs to the defendant in addition to the amount due upon the mort- gage, although he obtains the relief prayed for.*" It is other- wise if the defendant improperly resists the claim. ^' A judgment creditor who seeks to redeem mortgaged prem- ises after a statute foreclosure, must pay the sum actually due.«2 There can be no redemption without an allegation of pay- ment, or a tender of the mortgage debt and interest.** '» 2 Barb. Ch. Pr. 199 ; Darcy v. Hall, 1 Vem. 49. »» 2 Barb. Ch. Pr. 199; Wetherell v. CoUins, 3 Mad. 255. *° Vroom V. Ditmas, 4 Paige, 526 ; Benedict v. Gilman, lb. 58. «i Slee V. Manhattan Co., 1 Paige, 49. • ' Benedict v. Gilman, 4 Paige, 58. •' Beekman v. Frost, 18 Johns. 544; S. C, 1 Johns. Ch. 288; Saunders v. Frost, 5 Pick. 259. BILL TO KEDBEM. 477 SECTION VII. DECREE. The decree, if the bill is sustained, directs a reference to a 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 report, together with the costs, and that upon so doing the mortgagee shall convey to him the mortgaged premises. And it directs that upon complainants' default, the bill be dismissed with costs. The time allowed for the redemption is not fixed or certain, but rests in the sound discretion of the Court.®* And such time will not generally be enlarged.'^^ On a bill filed to cancel a mortgage past due,, and in a course of foreclosure, the proper decree, when the mortgage is found to be valid, is that unless the redemption money is paid within a specified time, the premises be sold as in fore- closure cases and not that the title be absolute in the mortga- gee.^^ ^ Courts of equity have no power by their decrees to extend the time for redemption on a statutory foreclosure where redemption within the time has been prevented by accident and misfortune, or by an unavoidable mental disorder. «' The redemption of a mortgage will not be decreed on any terms other than the payment of the mortgagee's claims, and where a vendee has lost his lien by refusing a tender of the "2 HofF. Ch. Pr. 159 ; Ferine v. Dunn, 4 Johns. Ch. 140 ; 2 Barb. Ch. Pr. 2 Hoff. Ch. Pr. 159 ; Brinckerhoff v. Lansing, 4 Johns. Ch. 65. Fosdick V. Van Husan, 21 Mich. 56 V. Fox, 36 Id. 461. « ' Cameron v. Adams, 31 Mich. 426. " Fosdick V. Van Husan, 21 Mich. 568; Goodenow v. Curtis, 33 Id. 506; Grover v. Fox, 36 Id. 461. 478 BILL TO EEDEEM. amount due, yet on a bill to redeem, equity requires that the mortgagee should have his money, less the statutory penalty.* ' Where a deed absolute in form is adjudged to be a mort- gage, and the mortgagee before bill filed, conveyed to one of the other defendants, the decree should direct the amount due to be paid to the assignee, instead of the mortgagee. ^^ Decrees may be made between co-defendants grounded upon the pleadings and proofe between complainants and defendants.'" Where a party fails to sustain his bill for a di3charge of a mortgage, under proper circumstances he may have a decree for redemption.' ^ Where a deposit of the sum due was made with the Eegis- ter before filing a bill, interest will cease during the time of said deposit.' 2 The receipt of a check by the Register of Deeds for the redemption money of a mortgage foreclosed under the statute, will not be deemed payment on a bill filed to cancel a deed of the mortgaged premises on the ground of payment." The Eegister of Deeds has no right to receive anything but money in redemption of property sold.'* The statutory penalty for refusing to discharge a mortgage is recoverable in equity on a bill to redeem.' ^ A demand before suit, accompanied by an offer to pay any balance due is not necessary except as bearing on the question of costs.'* When the party fails to redeem within the time allowed, the usual decree is that the bill be dismissed, and such dismissal amounts to an immediate foreclosure and a bar of the equity of «8 Cowles V. Marble, 37 Mich. 161. «9 Emerson V. Atwater, 12 Mich. 315. '» Thurston v. Prentiss, 1 Mich. 198. '1 Jones V. Giant, 10 Paige, 350; Parks v. Allen, 42 Mich. 482. '2 Sager v. Tupper, 35 Mich. 134. '» Woodbury v. Lewis, Walk. Ch. 256. '* Woodbury v. Lewis, supra; Carter v. Lewis, 27 Mich. 241- " Cowles V. Marble, 37 Mich. 158. '• Miner v. Beekman, 42 How. Pr. 33. BILL TO EEDBEM. 479 redemption.'" But a dismissal for want of prosecution will not have that effect.' * , The commissioner, to whom a decree is referred, having made his report, and it being confirmed, if the money is not paid an affidavit of the default should be made, and a final order for the dismissal of the bill may be moved for, as of course.'" Where a decree for redemption was made with a reference for accounting, su!ch decree may be afiBrmed without a full examination of the transactions involved, until a later stage of the case if it appears from the record that complainant was entitled to the relief, (a) When Decree not Binding. — The right of the holder of a sub- sequent mortgage to redeem from a prior mortgage, is not cut off or afiiected by a foreclosure decree and sale under the prior mortgage, where at the time of such decree and sale, no party to the foreclosure suit in any way represented, or had any right or interest in such subsequent mortgage, as where a suit had . not been revived against a deceased party.'" In suits to redeem, the consequence of the decree is an immediate and absolute foreclosure, and hence a complete bar of the mortgagor's rights. ' * A subsequent mortgagee whose mortgage is executed by husband and wife, may take advantage of the invalidity of a mortgage given by a married man upon his homestead without his wife's signature. '^ A sworn answer binds the complainant unless contro- verted.*^ " Goodenow v. Curtis, 33 Mich. 506; Adams v. Cameron, 40 Id. 509, and cases cited ; Ferine v. Dunn, 4 Johns. Ch. 142. '8 Hansard V. Hardy, 18Ves. 460. " Seaton on Decrees, 147; 2 Hoff. Ch. Pr. 159. (a) Curtis v. Sheldon, [January Term, 1882,] 47 Mich. "" Aveiy V. Ryerson, 34 Mich. 363. ' 1 Adams v. Cameron, 40 Mich. 509 ; Goodenow v. Curtis, 33 Mich. 505, 510; Ferine v. Dunn, 4 Johns. Ch. 140; Wilcox v. Balger, 6 Ohio, 406; Pitman V. Thornton, 66 Me. 469. »2 Dye V. Mann, 10 Mich. 291. »» Matteson v. Morris, 40 Mich. 52; Schwarz v. Wendell, Walk. Ch. 267 ; Robinson v. Cromelein, 15 Mich. 316. CHAPTEE XLI. PAETITION SUITS. Section 1. Nature of and How Commenced. 2. Parties to. 3. Bill. 4. Proceeding Before Decree. 5. Decree. 6. Proceeding by Sale. 7. Miscellaneous, , SECTION I. NATURE OF AJSD HOW COMMENCED. Partition is the severance of common or undivided inter- ests in realty. The Court of Chancery had not an original jurisdiction over the subject. In this country the proceedings are regulated by statute. ^ The statute provides that all persons holding lands as joint tenants, or tenants in common, may have a partition thereof. Any one or more of the persons so holding land may insti- tute a suit' in the Circuit Court for the county in which the land lies by a bill in equity for a division or partition thereof, according to the respective rights of the parties interested therein ; and for a sale" thereof, if it appbars that a partition cannot be made without great prejudice to the owners.^ 1 2 Hoflf. Ch. Pr. 160; 1 Story's Eq. Jur., § 646- s 2 Comp. L. 1871, ? 6267 ; Avery v. Payne, 12 Mich. 540; Campau v. Cam- pau, 19 Id. 116 ; Clapp v. Bromagham, 9 Cow. 530. 480 PARTITION SUITS. 481 Partition may also be made by a decree of the Probate Court in the closing up of estates, when assigned to heirs, devisees, or legatees, and held by them in common. ^ A bill for partition does not lie where the defendant is in possession, claiming adversely, or where the title is denied, or where it depends upon doubtful facts.* If the legal title is disputed and doubtful, the complainant will be sent to a court of law to have it established.^ But where the question arises upon an equitable title the reason of the rule fails. ^ A party applying for partition must have not only a pres- ent interest in the premises as a joint tenant or tenant in com- mon, but he must also be actually or constructively in posses- sion of his undivided share. If he have no such possession, and the lands are adversely held, and the title be doubtful or suspicious, the bill for parti- tion is premature, and should either be dismissed or the pro- ceedings stayed till complainant has had an opportunity to establish his title at law.'' An estate in remainder or reversion is not sufScient.' An "estate in possession" under this statute means merely an estate in present enjoyment, whether occupied by defendant's tenants or vacant.' One tenant in common out of possession may file a bill against another in possession, for the possession of one is the possession of all. 1" But if there has been an actual ouster of » 2 Comp. L. 1871, ? 4499. ^ Wilkin V. Wilkin, 1 Johns. Ch. Ill ; Coxe v. Smith, 4 Id. 271. « Jenkins v. Van Schaack, 3 Paige, 245 ; Hoffinan v. Beard, 22 Mich. 64. « Hosford V. Merevin, 5 Barb. 51 ; Coxe v. Smith, 4 Johns. Ch. 271. ' Hoffman v. Beard, 22 Mich. 65, and cases cited ; Hemingway v. Gris- wold, lb. 77. « 2 Comp. L. 1871, ? 6268 ; Beebee v. Griffing, 14 N. Y. 235 ; Burhans v. Burharis, 2 Barb. Ch. 398 ; Florence v, Hopkins, 46 N. Y. 182. 9 Eberts V. Fisher, 44 Mich. 551. " Smith V. Smith, 10 Paige, 470. 61 482 PARTITION SUITS. the complainant by his co- tenant, he must resort to ejectment first.i 1 Partition may be made of land leased for a term of years, when owned by several persons as tenants in common, both of the rent and of the reversion. But a sale of the premises must be made subject to the rights of the lessees, and who will by the sale become the tenants to the purchaser of the rents and reversion.^'' Where State is Interested. — "Wlien any lands are held by the people of the State and individuals as tenants in common, pro- ceedings for partition may be had in the same manner as against individuals, and the State must pay its proportion of costs. The subpoena and notices required to be served in other cases must be served on the Attorney General, who is to appear for the State. 13 Married Women. — Under our statute a wife whose husband is seized of an interest in lands may be made a party, and if she is not, her inchoate right of dower will not be affected.^* The court of chancery has power on partition proceedings to guard this inchoate right where the wife is made a party without departing from its principles.' * Claims Barred. — The authority given for partition will not authorize the revival or prosecution of any claim to lands which might otherwise be barred by any statute of limitation or by the acquiesence of the party. ' ^ Jurisdiction. — Non-Besidents — The jurisdiction of courts of chancery over proceedings in partition as to non-residents, is special and limited, and dependent entirely upon the statute. " Jenkins v. Van Schaack, 3 Paige, 245. 12 Woodworth V. Campbell, 5 Paige, 518. 18 2 Comp. L. 1871, U 6344, 6345. 14 Greiner v. Klein, 28 Mich. 22, 23; 2 Comp. L. ?? 6321, 6322; Laws of 1881, p. 278 ; Wilkinson v. Parish, 3 Paige, 653; Jackson v. Edwards, 7 Id. 386; Mills V. Van Voorhies, 20 N. Y. 412. 1" Greiner v. Klein, 28 Mich. 12. i« 2 Comp. L. 1871, ? 6346. PARTITION SUITS. 483 All the necessary facts to confer jurisdiction must affirmatively appear upon the record. ^ ' Equity has jurisdiction to make partition between joint owners of lands notwithstanding a remedy at law is given by statute.^* But the title must be undisputed. If it be partly equitable and partly legal, the Court will entertain jurisdic- tion. ^ 9 On a foreclosure bill, it is incompetent for the Court to direct a partition of premises, even though the /acts proven might make such partition equitable. 2" The statute does not prevent joint tenants, or tenants in common from making contracts modifying or limiting their otherwise incidental rights to a partition, either at the time of creating the joint interests, or afterwards.^' A voluntary partition amongst heirs, to which an execu- tion purchaser of the interest of one of them was not made a party, cannot prejudice the right of such purchaser. 22 Where, from joint improvements and a voluntary comming- ling of interests, it becomes impossible to ascertain the rights of parties therein, the Court will not consider their relative interests in the partition. ^^ Our statute of partition having been adopted in substance from that of New York, the construction given to it at the time of its adoption by the courts of that State will be followed by our courts. ^^ Partition is a local proceeding, and as a general rule can only be enforced in a court which has jurisdiction of the ter- 1' Piatt V. Stewart, 10 Mich. 260; King v. Harrington, 14 Id. 532; Merrill V. Montgomery, 25 Id, 73 ; Hartf. Fire Ins. Co. v. Owen, 30 Id. 441 ; Foot v. Stevens, 17 Wend. 488 ; Thatcher v. Powell, 6 Wheat. 119. 18 Thayer" V. Lane, Harr. Ch. 247. " Hoffinan v. Beard, 22 Mich. 64 ; Overton v. Woolfolk, 6 Dana, 371. "» Payne V. Avery, 21 Mich. 524. ==1 Avery v. Payne, 12 Mich. 541. »» Butler V. Roys, 25 Mich. 53. " Campbell v. Campbell, 21 Mich. 438. »* Greiner v. Klein, 28 Mich. 12. 484 PARTITION SUITS. ritory where tlie land is.'' * But in proceedings for an account- ing between partners, as the real estate held by the firm is con- sidered in equity as personalty, the rule does not apply. 2' SECTION II. PAETIES. The party filing the bill must have an estate in possession of the land subject to be partitioned. But an estate therein in remainder or reversion is insufficient.^' Upon filing a bill, such of the defendants as reside in the State and can be found therein, must be served with subpoena to appear and answer the bill, and the same may be taken as confessed, as in other cases. ^' All persons having any interest in the premises, whether in possession or otherwise, and every person entitled to dower therein, if the same haa not been admeasured, may be made parties to the suit.^^ It is unnecessary in the first instance to make parties of creditors having a lien on the premises or any part thereof by judgment, decree, mortgage, or otherwise; nor will the parti- lion of the premises alter, affect or impair the lien of any such creditor, except as follows :*» If the lien is on the undivided interest or estate of any of the parties either in part or the whole, such lien, if partition be made, will thereafter be a »6 2 Comp. L. 1871, ? 5058; Godfrey v. White, 43 Mich. 189. •' Godfrey V. White, supra. , " 2 Comp. L. 1871, ? 6268; Hoffinan v. Beard, 22 Mich. 65. »• 2 Comp. L. 1871, §6275. " 2 Comp. L. 1871, § 6270; Striker v. Mott, 2 Paige, 387. »• 2 Comp. L. 1871, § 6272. See Whiting v. Butler, 29 Mich. 126, PAETITION SUITS. 485 charge only on the share assigned to such party, and may be enforced against the same as though such lien had not origi- nally existed thereupon. ^ ^ But if the person havtag such Hen be made a party to such suit; the Court may direct the commissioners appoiuted to make such partition, to designate and set apart a tract or por- tion of the premises equal in value to the estate or interest of the party to •whose portion the lien is to be transferred, in the tract upon which such lien had before existed. 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 commissioners, with the same effect as is above provided in case the person having such lien is not a party to such suit. The portion of the premises to which the lien is transferred, shall be first charged with the just proportion of the costs of the proceedings in preference to said lien.'* If at any time prior to the confirmation of the report of the commissioners appointed to make such partition, any per- son had an uncertain or contingent interest in any part of the premises, which has since the filing of the bill become a cer- tain or absolute interest, or who has acquired a title in fee to any part of said premises by virtue of any mortgage or execu- tion sale of any interest thereon, shall apply to the Court by petition, 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 rights of such person as shall be agreeable to "equity. 'i But the complainants may, at their election, make every creditor, having a specific lien on the undivided iuterest or estate of any of the parties by mortgage or otherwise, a party to the proceedings. In such case the bill should set forth the nature of every such lien or incumbrance. '^ A tax title pur- »» 2 Comp. L. 1871, ? 6273. »» 2 Comp.L. 1871, i 6274; Whiting v. BuUer, 29 Mich. 123, and 2 Comp. L.1871, J4628. 486 PAETiTioN smrs. chaser need not be made a party if the land is still redeema- ble. 3» A tenant in common, who is also a lessee of the land may have all of his claims considered together, though the question of jurisdiction does not depend on so doing.^* Executors and devisees of a deceased tenant in common, not asking partition among themselves, may have their interests in premises set off from that of a co-tenant.* ^ If any parties having an interest in such land are unknown, or if either of the known parties reside out of this State, or cannot be found therein, and such facts be made to appear to the Court by affidavit, an order may be made by the Court, containing a suflcient description of the premises whereof partition is sought, and requiring all parties interested to appear and answer the bill by a day in such order to be specified, which order shall be served personally, or shall be published once in each week successively in such paper as may be desig- nated in such order, and for such time as the Court shall des- ignate, not exceeding three months.*® The general guardians, residing in this State, of minors and persons under guardianship who should be parties, upon giv- ing bonds, must represent their respective wards whether they shall reside in or out of the State.''' The bond must run to the people, with such penalty and surety as the Court shall direct, conditioned for the faithful performance of the trust, and render just accounts, etc.** If such guardian shall fail to give such security, it is the duty of the Court to appoint the clerk of the Court as such guardian, and to dispense with the said security.*' «8 Ebertsv. Fisher, 44 Mich. 551. ' * Eberts v. Fisher, supra. »6 Page V. Webster, 8 Mich. 263. 8 8 2 Comp. L. 1871, 6276 ; Piatt v. Stewart, 10 Mich. 260 ; King v. Har- rington, 14 Id. 532 ; Braker v. Devereaux, 8 Paige, .513. »' 2 Comp. L. 1871, ? 6278. »8 2 Comp. L. 1871, § 6279. 00 2Comp. L. 1871, ? 6380; Minor v. Betts, 7 Paige, 596, Croghan v. Liv- ingston, 17 N. Y. 218. PAETITION stnia. 487 The Court is required to appoint guardians for all minors interested in the premises, as have no general guardians in this State, to protect their interests. The acts of such guardians will be binding on their respective wards.* " Heirs. — In a partition in equity between heirs, it is not necessary that it should appear that the estate had been set- tled, or delivered over by the court of probate.* ^ It was not the intention of the statute in conferring upon administrators the right to take possession of the estate of the deceased for the purpose of collecting rents, etc., to create an intervening estate between that of the ancestor and that of the heir, converting the latter into an estate in expectancy. Heirs have such an estate in possession of the inheritance as will enable them to maintain a bill in equity for a partition, notwithstanding the existence of the power of the administra- tor to take possession under the statute.* * SECTION III. BILL. The bill must be under oath, and must particularly describe the premises sought to be divided or sold. It must set forth the rights and titles of all persons interested therein, so far as known to the complainant, including the interest of any ten- ant for years, for life, by the courtesy or in dower, and the persons entitled to the reversion, remainder or inheritance, after the termination of any particular estate therein, and " 2 Comp. L. 1871, ? 6278. *• Campau v. Campau, 19 Mich. 116. " Campau v. Campau, supra ; Streeter v. Paton, 7 Mich. 341 ; Kline v. Moulton, 11 Id. 370 ; Marvin v. Schilling, 12 Id. 856; Holbrook v. Campau, 22 Mich. 288; Campau V. Campau, 25 Id. 127 ■>■ 488 PARTITION SUITS. every person who by any contingency contained in any devise, grant or otherwise, may be or become entitled to any beneficial interest in the premises.** Where a claim of leasehold interests are involved, specific allegations should be made in the biU, especially i. a forfeiture is relied on. If defendants rely upon a lease, they must include such averments in their answer as will enable them to maintain their interests, so that whether the land be partitioned or sold, equities may be adjusted in it or its proceeds.** In case any of such parties, or the share or quantity of interest of an^ 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 one, so that such parties cannot be named, such facts must be set forth in the bill. *« Where the bill discloses that persons not made parties have like interests with those set up by the complainant, it is demur- rable for want of parties.** While partition will be decreed according to the equitable rights, yet to enable the Court to make such decree, the equit- able rights of the parties must appear from the pleadings.*'' 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 sufficient alle- gation of the latter's interests where they claim no partition between themselves.** A partition and assignment of dower are proper incidents to a bill to determine the right, and the remedy in equity is 4» 2 Comp. L. 1871, ? 6269 ; Eberts v. Fisher, 44 Mich. 551. ** Eberts V. Fisher, Supra. " 2 Comp. L. 1871, i 6271. <' Taylor v. King, 32 Mich. 42. *' Thayer v. Lane, Walk. Ch. 204; Coxe v. Smith, 4 Johns. Ch. 271, *« Page V. Webster, 8 Mich. 263. * As to amendments of tax title, see Page v. Webster, supra. PARTITION SUITS. 489 cMefly desirable as permitting the entire rights to be disposed of in one suit.** Bub partition is not an incident to a suit for accounting. 5" Amendment. — The Court may at any time permit the bill and all subsequent proceedings to be amended so as to repre- sent truly the rights of parties. But no person can be made a defendant, unless by his consent, without personal service of twenty days' notice of the motion, or by publication, once in each week, successively, for one month, in such paper as the Court may direct.'' After such amendment any party whose rights are affected thereby, and who has not had an opportunity to sustain his claim, may answer the bill or put in a further answer, and maintain his claim. -^ ^ 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 sales of interests in any part of the premises, shall not have been made parties, the Court shall direct the complainant to amend his bill, by making parties to the proceedings every person having a specific lien on the undivided interest or estate of any of the parties, by mortgage or otherwise, and also persons who have acquired an interest under mortgage or exe- cution sales.'* Notice of Lis Pendens. — To render the filing of a bill con- structive notice to a purchaser, the complainant must file for record a notice of lis pendens with the Eegister of Deeds of the *' Brown V. Bronson, 35 Mich. 419: And see Damouth v, Klock, 29 Id. 289. »» Godfrey v. White, 43 Mich. 189. »i 2 Comp. L. 1871, ? 6282. " 2 Comp. L. 1871, | 6283. " 2 Comp. L. 1871, ? 6303. 62 490 PARTITION SUITS. county in wMch the lands to be affected by such notice are situated.^* It is unnecessary if he have actual noticed ^ Guardians ad litem may be appointed according to the gen- eral practice.^* If the bill is amended by adding new parties, after filing the Us pendens, a new notice of suit as to such parties is neces- sary.** SECTION IV. PEOCEEDINGS BEFOEE DECREE. On filing proof of personal service, or of the publication of the order to appear, the Court will make an order taking the bill as confessed as against all unknown and absent or non- resident parties, as do not appear. But all such unknown, parties as shall appear may be made parties to the suit, and the bin may be amended.* ' Guardians may be appointed for infants, etc. [See Infants.'] It is also provided by rule that where any infant defendant has answered generally, the complainant may at any time thereafter, before hearing, enter an order of course for a refer- ' ence to take proofs of all material facts of the. case and of the title of the complainant.** On such reference he must exhibit before the commissioner proof of his title and of all other material facts, and a complete abstract of all the conveyances and incumbrances ; all of which must be reported to the Court. " 2 Comp. L. 1871, ? 5065. " Baker v. Pierson, 5 Mich. 457. " Waring V. Waring, 7 Abb. Pr.472. " 2 Comp. L. 1871, ? 6277. " Ch. Rule 121. PARTITION SUITS. 491 No decree can in such or any other case be rendered against an infant in partition until the Court is fully satisfied concern- ing the facts and circumstances of the case. The Court may at any time order such reference or further references as justice may require for its complete information. And the proofs must in all cases be returned to the Court for its action thereon.** Any defendant may deny the joint tenancy or tenancy in common of any co-defendant. Whenever the Court may deem it necessary a feigned issue may be ordered to be tried by a jury.®' If the bill be taken as confessed by any of the defendants, whether known or unknown, the Court will order a reference to a commissioner |;o take proof of the title of complainant and report the same. The cpmplainant must exhibit his proof of title before snch commissioner, and furnish an abstract of the conveyances affecting the same.^* SECTION V. DECEBE. There are two methods prescribed by the statute to obtain a division of real estate held in joint tenantcy, or in common : (1) ; By partition without sale, and (2) ; When from the nature and structure of the property, a sale is necessary. Aye will first state the practice of partition without sale. " Ch. Rule 121. " 2 Comp. L. 1871, § 6281 ; Hoffinan v. Beard, 22 Mich. 59 ; Wallace v. Harris, 32 Id 380. «" 2 Comp. L. 1871, 2 6284; Larkin v. Mann, 2 Paige, 27, 28; Hamilton V. Morris, 7 Id. 39. 492 PAETITION SUITS. Usually when the rights of the parties are correctly stated in the bill, there is no necessity of an answer. But when the rights of the complainant are not admitted, he is bound to make such proof of his title as would entitle him to recover in ejectment.^ 1 Upon the hearing of the cause, the Court shall ascertain from the proofe so taken, in case of the bill being taken as con- fessed; or from the bill and answer, or pleadings and proofs, if the defendants appear and answer and shaU declare the rights, titles and interests of the i De Mill V. Pt.H. Dock Co., 30 Mich. 38. »» Walsh V. Vamey, 38 Mich. 73. 496 PABTITION SUITS. When one of several heirs files a bill for partition against the others who had attempted a voluntary partition of the whole estate among themselves, excluding the complainant, the Court in making a decree will respect the voluntary partition so far as it does not prejudice the rights of the complainant.** In case of a voluntary partition of lands, 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.*^ When partition proceedings are directed against several distinct parcels of land, each is subject to partition by itself.*'' A bill to redeem filed by several persons jointly, cannot be maintained if the ground of their joint claim fails, whatever any one of them, claiming title from another source, might be entitled to in a separate proceeding.*^ In estimating complainant's share of the encumbrance it is not necessary to notice particularly the other shares of the land held in fee, but as between the owners of the fee and of a life estate in the same encumbered property the life estate should keep down the interest as its share of the incumbrance, and the fee should be charged with the principal.** Appeal. — Any of the parties to a suit for the partition or sale of any premises under the provisions of this chapter, and any party interested in the premises, though not named in the proceedings may, jointly or separately, and without the consent of any co- complain ant or co-defendant, appeal from any decree or order of the said Court, upon any such proceedings within ** Campauv. Campau, 19 Mich. 116. 8« Webb V. Rowe, 35 Mich. 58. «« Walsh V. Varney, 38 Mich. 73. 8' Bigelow V. Booth, 39 Mich. 622. »« CampbeU v. Campbell, 21 Mich. 454; 4 Kent Com. 74 to 76; Mosely v. Marshall, 27 Barb. 42. PAETITION SUITS. 497 the same time, and under the like regulations, as in other cases.** SECTION VI. PEOCEEDING BY SAIvE. Order for 8ale. — If the circuit court commissioner to whom a reference is made, [2 Comp. L. 1871, § 6287,] shall report that all of the lands or tenements sought to be divided, or a part thereof cannot be partitioned without great prejudice to the owners, and if the Court is satisfied that the report is just and correct, it may thereupon order the said commissioner to sell the premises so situated at public auction to the highest bidder. If he reports that any portion or interest can be divided, and that other portions and interests cannot be so divided without great prejudice to the owner thereof, the Court may, if satisfied, make an order appointing other commissioners, and direct them to proceed to make partition and division of such parts and interests of which division can be made, and set apart such portions, interests or parts thereof for sale, and sell the same as directed.*" The Court wUI direct in such order the terms of credit which may be allowed for any portions of the purchase money of which it shall think proper to direct the investment, and for such portions of such purchase money as are required by the provisions hereinafter contained to be invested for the ben- efit of any unknown owners, any tafants, any parties out of the State, or any tenants for life, in dowry, or by the curtesy.' ^ " 2 Comp. L. 1871, ? 6336. 8» 2 Comp. L. 1871, ? 6298. " 2 Comp. L. 1871, § 6299. 63 498 PARTITION striTS. The portions of the purchase money for which credit shall be allowed, must always be secured at interest by a mortgage of the premises sold, by a bond of the purchaser, and by such other security as the Court shall prescribe. ^^ Whenever the estate of any tenant in dower or by the curtesy, or for life, in the whole or any part or share of the premises in question has been admitted by the parties, or ascer- tained by the Court to be existing at the time of the order for such sale, and the person entitled to such estate has been made a paity to the proceedings, the Couft must first consider and determine under all the circumstances of the case, whether the same should be sold, and in making such determination regard must be had to the interests of all the parties.^* If it appears by the proceedings on such bill, or by such report, that there are any existing incumbrances upon the estate, or interest in the premises, of any party named in the proceedings in the suit, the order of sale should direct the commissioner to bring into Court and pay to the clerk the portion of the moneys arising from the sale of the estate and interest of such party, after deducting the portion of the costs, charges and expenses to which it shall be liable.'* The commissioners may take separate mortgages and other securities for such convenient shares or portions of the pur- chase money as are directed by the Court to be invested in the name of the clerk of the court in whose office the original bill for a partition was filed, and his successors in office ; and for siich shares as any known owner of full age shall desire to have so invested in the name of such owner.' ^ Upon such sales being confirmed as hereinafter mentioned, the said commissioners are to deliver such mortgages, and " 2 Comp. L. 1871, ? 63"0. »' 2 Comp. L. 1871, g 6310. »4 2 Comp. L. 1871, ? 6304. »» 2Conip.L. 1871,|630X. PAKTTTION SUITS. 499 other securities to the clerk of the court, or to the known owners whose shares were so invested.*^ Sale.— The Circuit Court Commissioner must 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.^'' The terms of such sale must be made known at the time ; and if the premises consist of distinct lots, tracts or jparcels, they must be sold separately.^* No such commissioner, nor any person for his benefit, is permitted to be interested in the purchase, nor to purchase, directly or indirectly, any of the premises sold ; nor can 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 will be void. 9 3 After completing siieh sale, the commissioner must report the same to the Court, with a description of the different par- cels of land sold to each purchaser, the name of such pur- chaser and the price bid by him, which report must be filed in the clerk's office. ^'"' If the sales are approved and confirmed by the Court, an order will be entered directing the commissioner to execute conveyances pursuant to such sales ; and which such commis- sioner is authorized to do upon the entry of such order. ^ "^ The statute directs the conveyances to be recorded, and declares their effect. It also provides for the payment of the costs, and for the distribution of the net proceeds of the sale ; directs the shares of infants, unknown and absent owners, and " 2 Comp. L. 1871, 2 6302. »' 2 Comp. L. 1871, § 6316. »8 2 Comp. L. 1871, § 6317. " 2 Comp. L. 1871, ? 6318. "» 2 Comp. L. 1871, ? 6319. "1 2 Comp. L. 1871, ? 6320. 500 PAETITION SUITS. tenants in dower and for life, to be invested, and in what man- ner ; and authorizes the Court to require security to refund any share, with interest, in case it shall afterwards appear that the party receiving it was not entitled thereto. 1*2 SECTION VII, MISCELLANEOUS PBOVISIONS. Whenever it shall appear to the Court by due proof, or on report of a commissioner, that any infant holds real estate in joint tenancy, or in common, or in any other manner, which would authorize his being made a party to a suit in partition, and that the interest of sue it infant, or of any other person concerned therein, requires that partition of such estate should be made, such Court may direct and authorize the general guardian of such infant to agree to a division thereof, or to a sale of such premises, or of such part thereof, as in the opinion of the Court Shall be incapable of partition, or as shall be most for the interest of such infant, to be sold.^ "* Such guardian must report to the Court, on oath, the parti- tion or sale so made by him, and if the same be approved and confirmed by the Court, an order must be entered authoriz- ing him to execute conveyances of the right of such in- fant 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 com- mon 104 i»» 2 Comp. L. 1871, ?? 6321 to 6329; Greiner v. Klein, 28 Mich. 20. i«« 2 Comp. L. 1871, ? 6337. i»4 2 Comp. L. 1871, § 6338. PAETITION SUITS. 501 Snch deeds shall be as valid and effectual to convey the share and interest of such infant as if the same had been exe- cuted and duly acknowledged by such infant after arriving at fuU age ; and in case of the sale of any part of such estate, the infant will be deemed a ward of the Court, and such order shall be taken as the Court may direct, for securing, investing, and applying the proceeds of the sale, and for requiring secur- ity from the guardian for that purpose; ^ "^ Whenever such infant is a married woman, the Court may, upon petition, appoint her husband as her guardian, and in case of the appointment of the husband, the provisions of the three last preceding sections shall apply to such hus- band. I's Whenever it shall appear to the Court, on the application of the 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 partition, that the interest of such idiot, lunatic, or other person aforesaid, or of any of the parties interested in such estate, requires a par- tition thereof, it must be referred to a Circuit Court Commis- sioner, to inquire into, and report upon the circumstances.^"^ Upon the coming in of the report and a hearing and exam- ination of the matter, the Court may authorize such guardian to agree to a partition of such estate, and to execute releases , of the right of such idiot, lunatic, or other person as aforesaid, in and to the shares of such estate, calling to the other joint tenants or tenants in common, i"* Such release will 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 1" 2 Comp. L. 1871, ? 6339. "« 2 Comp L. 1871, § 6340. "' 2 Comp. L. 1871, ? 6341. "8 2 Comp. L. 1871, ? 6342. 502 PAETITION SUITS. sound mind and understanding, and not subject to guardian- ship, and for a valuable consideration. * " * When incumbered real estate has been sold, and the money- brought into court, the statute directs in what manner the money so paid in may be applied for, and by whom, and as to the proceedings thereon. It also provides for the distribution of such money among the several creditors, according to the priority of their incumbrances. It also directs the incumbrances thus paid off to be dis- charged, and provides that the proceedings to ascertain and settle the amount of incumbrances shall not affect any other party to the suit, nor delay the paying over or investing the monies to or for the benefit of any party upon whose estate in the premises there does not appear to be any existing incum- brances.ii'' The provisions of this chapter apply to lands held by a trustee for the benefit of parties having a beneficial interest therein, and the proceedings for a partition may be instituted by the trustee or any party interested in the lands so held, and shall be regulated by the provisions of this chapter, except as otherwise provided. ^ ^ ^ Where the original parties in interest in said trust, or any of them, may have died, leaving heirs or legatees, or others interested by title or' right through them, or any of them, in said lands, it shall be competent for the Court, at its discre- tion, to divide the said land by decree among the said heirs, legatees, or others representing the interests of the deceased therein, so as to set off the interest of all such parties together, without subdivisions among them.i^^ In any case where it is expedient to decree that the interest which may have belonged to any deceased party shall be set off in a body, without subdivision, to those claiming under him, 100 2 Comp. L. 1871, ? 6343. »'» 2 Comp. L 1871 §§ 6301-6310, '" 2 Comp. L. 1871, ? 6348. 112 2 Comp. L. 1871, § 6319. PAETiTioN sxnis. 503 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.^^^ In all cases where the original parties in interest are fully known, but where by death, legal proceedings, or by other operations of law, it has become uncertain who are the present parties in interest, it shall be competent and lawful to separate the portion or interest in such lands, originally owned by said parties, in the manner provided in the foregoing sections* instead of leaving it with land undivided as belonging to unknown owners ; and such divisions and decree shall operate to convey the title to those claiming under said party, accord- ing to their legal rights, whatever they may be.^^* Whenever it shall appear that it would be beneficial 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 any other purpose, it shall be competent for the Court to appoint a receiver thereof, with such authority as may be necessary in the premises. ' ^ ^ If a sale of the estate of tenants in dower, by the curtesy or for life is ordered, the estate and interest of every such tenant or person shall pass thereby, and the purchaser, his heirs and assigns, shall hold such premises free, and discharged from all claims by virtue of any such estat* or interest, whether the same be to any undivided share of a joint tenant, or te lant in common, or to the whole or any part of the premises sold. ^ ' « Upon a sale being made of the estate, or interest of tenants in dower, by the curtesy, or for life, the Court will direct the payment of such sum in gross out of the proceeds thereof, to the person entitled to such estate in dower, tenancy by the "» 2 Comp. L. 1871, § 6350. 11* 2Comp. L. 1871, 1 6351. "5 2Comp. L. 1871,1 6352. See Laws of 1881, p. 277, ns to rights of Mnrried Women. "« 2 Comp. L. 1871, 2 6311; Hardwood v. Kirby, 1 Paige, 472. 504 PAETITION SUITS. curtesy or tenancy for life, as shall be deemed upon the prin- ciples of law applicable to annuities, a reasonable sajtisfaction 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 acknowledge^ or proved, to entitle them to be recorded.! 1' In case no such consent is given at or before the coming in of the report of sale by the master, then the Court must ascer- tain and determine what proportion of the proceeds of such sale, after deducting all expenses, will be a just and reason- able sum to be invested for the benefit of the person entitled to such estate or interest in dower, by the curtesy, or for life, and shall order the same to be brought into court for that purpose.!!* The proceeds thus brought in are to be invested in permar nent securities, at interest, so that such interest shall annually be paid to the parties entitled to such estate during their lives respectively.!!^ The proportions of the proceeds of the sale are to be ascer- tained and determined in the several cases, as follows : 1. Of an estate in dower the proportion will be one-third of the proceeds of the sale of the premises, or of the sale of the undivided share in such premises upon which the claim of dower existed. 2. Of an estate by the curtesy or other life estate, the pro- portion will be the whole proceeds of the sale of the premises, or of the sale of the undivided share thereof, in which such estate shall be. And, in all cases, the proportion of the expenses of the proceedings must be deducted from the pro- ceeds of the sale.! ^ o !!' 2 Comp. L. 1871, ? 6312. 118 2Comp. L. 1871, ? 6313. 1" 2 Comp. L. 1871, ? 6327. 120 2 Comp. L. 1871, ? 6314. PARTITION BtnTS. 505 Inchoate Sight of Bower and other Future Interests. — Under a recent statute, it is provided tliat in cases of sales under judg- ment or decree, in partition, where it appears that any married woman has an inchoate right of dower in any of the lands divided or sold, or that any person has any vested or contin- gent /w^wre right or estate in such lands, the Court must ascer- tain and settle the proportional value of such inchoate, con- tingent or vested right or estate, according to the principles of law, applicable to annuities and survivorship, and direct such proportion of the proceeds of the sale to be invested, secured, or paid over, in such manner as shall be judged best, to secure and protect the rights and interests of the parties. ' ^ * Any married woman may release such right, interest or estate to her husband, and acknowledge the same before the commissioner making the sale, or before any officer authorized to take acknowledgments, or if executed out of this State, it must be executed, acknowledged and certified as required by the laws of this State, for the execution, acknowledgment and cer- tification of deeds in any other State, Territory or District of the United States, and upon such release, the share of the sale arising from her contingent interest shall be paid to her or her husband for her benefit. ^ ^ ^ Such release, and also the payment, investment, or other- wise securing any share of the proceeds of a sale as aforesaid, will be a bar, both in law and equity, against any such right, estate or claim.^^a If the persons entitled to any such estate in dower, by the curtesy or for life, be unknown, the Court must provide for the protection of the rights of such persons in the same manner as far as may be, as if they were known and had appeared.!** "1 Laws of 1881, p. 278 ; Greiner v. Klein, 28 Mich. 22, 23. i»2 Laws of 1881, p. 278. 1" Laws of 1881, supra. "* 2Comp. L. 1871,2 6315. 64 506 PAETITION SUITS. Securitieshowto he Taken. — Whenever any security is directed to be taken by the Court., or any investment to be made, or any security taken by a commissioner on the sale of any real estate, as hereinbefore directed, except where provision is made for taking the same in the name of any known owner, the bonds, mortgages, or other evidences thereof must be taken in the name of the clerk of the court in whose office the orig- inal bill was filed, and his successors in office, who will hold the same by virtue of his office, and shall deliver them to his successor.!*^ Such clerk will receive the interest or principal of any sums as they become due, and apply or re-invest the same according to the circumstances of the case, as the Court shall direct ; and must once in every year, render to the Court an account in writing, and on oath, of all moneys received by him and of the application thereof.' ^^ All investments or re-investments under the provisions of this chapter must be made on bond and mortgage, upon unin- cumbered real estate of at least double the value of such invest- ment exclusive of buildings, or in other equivalent security, and no such security, bond, mortgage, or other evidence of such investment must be discharged, transferred or impaired by any act of the clerk without the order of the Court entered in the minutes thereof.^ ^^ Any person interested in such investment may, with the leave of the Court, prosecute the same in the name of the existing clerk, and no suit shall be abated by the death, removal from office, or resignation of the clerk to whom such securities or evidences were executed, or of any of his succes- sors.'^* Costs. — ^Upon a final decree for partition, the Court must direct that each of the parties concerned therein, other than »»» 2 Comp. L. 1871, ? 6329. ' '" 2Comp. L. 1871, ? 6330. "^ 2Conip, L. 1871, J 6331. »»» 2 Comp. L. 1871, i 6332. PAETITION SUITS. 507 the complainants, pay to the latter 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 pro- portion of such costs and charges assessed upon the unknown owners, to be chargeable on the part remaining undivided ; and upon such decree execution may issue as in other cases, and may be levied on the property of the parties respectively charged with such costs, and upon any share or part of the premises allotted on any such division to any owner unknown, or not named, and upon every portion remaining undivided for the proportion to be adjudged to be paid by such owners or chargeable to the part remaining undivided. ' ^ ' A sale of the premises of such owner unknown upon such execution, shall be as valid as if such owner had been named in tljie proceedings and in such execution. '3" If a bill for partition shall be dismissed, or the suit shall be discontinued, the complainants shall pay costs to be collected as in other cases. ^ * ^ "» 2 Comp. L. 1871, 5 6333 ; Shepherd v. Rice, 38 Mich. 556. "" 2 Comp. L. 1871, ? 6334. "1 2 Comp. L. 1871, i 6335, CHAPTEE XLII. PEOCEEDINGS TO ENFOECE MECHANICS' LIENS. Section 1. Nature of Lien. 2. In What Cases Given. 3. When Lien to Attach — Notice and Service. 4. Limitation of Lien. 5. Parties. 6. Bill or Petition. 7. Hearing. 8. Decree and Sale. 9. Distribution and Proceeds. 10. Appeal. SECTION I. NATUEE OP. The proceedings to enforce mechanics' liens being purely statutory, and in derogation of the common law, must be strictly pursued.* By a recent Act of the Legislature a general revision has been made of previous statutes affecting such liens. ^ The pleadings and practice in relation thereto are substan- tially the same as in other equitable suits, except that the tes- timony is taken in open court unless it is deemed proper to submit questions of fact to a jury, in which case the trial thereof shall be had upon a question stated, or upon an issue I Phillips on Liens, pp. 3, 22, 433 ; Mushlitt v. Silverman, 50 N. Y. 360. » 2 Comp. L. 1871, Chap. 215, as amended by Laws of 1879, p. 274. 508 BILL TO ENFORCE MECHANICS' LIENS. 509 formed under the direction of the Court, or otherwise, as it shall order. ^ A title secured under the mechanics lien law is purely stat- utory, and its validity depends on an affirmative showing that every essential statutory step in the creation, continuance or enforcement of the lien has been duly taken.* Statutory provisions permitting the summary enforcement of private charges, such as mechanics' liens on property with- out the assent of the owner, or judicial sanction cannot be extended in their operation beyond the plain and fair sense of the terms in which they are expressed.* One cannot at the time of contracting for building material, and by that act alone, incur a mechanics' lien against land upon which the building is to be put up if he had then no legal or equitable title to it.* A mechanics' lien for building materials can arise only on a contract made by the owner, part owner or lessee of the land to be affected ; and cannot attach to anything besides his actual interest.* The contract for furnishing labor or materials to constitute a lien, must relate to and be performed on the land.^ A mechanics' lien in Michigan attaches to an entire inter- est of the debtor in premises considered only as real estate, and not to chattels separated from it." When enforced against a simple equity, it must bg confined to that, and a sale of the equitable interest must be subject to the rights of the legal owner.' Such lien is terminable on redemption, and therefore gives no fixed right of possession for any particular period and does not concern third persons, if not asserted by the parties.* » Laws of 1879, p. 275, ?? 6, 10, 11. * Wagar v. Briscoe, 38 Mich. 587. ' Stout V. Sawyer, 37 Mich. 313. 8 Wagur V. Briscoe, 38 Mich. 588. ' Wagar v. Briscoe, supra. » Bodine v. Simmons, 38 Mich. 682. 510 BILL TO ENFOECB MECHANICS' LIESS. The lien does not preclude the general owner from replevy* ing the goods as against a stranger. [As to the legislative power over the subject, see 4th chap- ter of Phillips on Liens, p. 40.] SECTION II. IN WHAT CASES GITEN. The statute provides that every person who shall, in pur- suance of any contract, express or implied, existing between 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, beautify or ornament, orput in, or who shall furnish any labor or materials in or for building, altering, improving, repairing, erecting, beautifying, or ornamenting, or putting in any house, building, machinery, wharf, or other structure, shall have a lien therefor upon such house, building, machinery, wharf or other structure, and its appurtenances, and also upon the entire interest of such owner, part owner, lessee, or persons holding under such land contract or otherwise, in and to the lot or piece of land, not exceeding one-quarter section of land, or if within any incorporated village or city, 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 O'ft^ner, lessee or person holding under such land contract or otherwise at the time work was commenced, or materials begun to be furnished by the contractor under the original contract, or by a sub-con- tractor under such contract.^ Whether dredging out a slip for a wharf constitutes a lien qucere : Clark T. Raymond, 27 Mich. 456. » Laws 1879, p. 274, 2 1 J -^^o tmstruction of the Code of /8j8, See Scales V. Giiffin, 2 Doug. 54. BXLIi TO ENFORCE MECHANICS' LIENS. 611 The aggregate of all liens cannot exceed the amount due or to become due from such owner, part owner, lessee, or person holding under such land contract or otherwise. Property of Married Women, — If such labor, service or mate- rials are furnished upon lands belonging to any married woman, with her knowledge or consent, in pursuance of a contract with the husband of such married woman, the person furnish- ing 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. ^ " Bub-contractor. — The statute also provides that every person who shall, as sub- contractor, laborer or material man, perform or furnish any labor or materials to such original or principal contractor, in carrying forward or completing any such con- tract, shall also have a similar lien.^" Infants are not bound by contracts seeking oo create a mechanics' lien.'^ A lien is not destroyed by the destruction of the erections. It operates on the land or the interest in it.^^ PvMic Buildings. — Public buildings are exempt from the operation of the lien law. In some of the States, however, municipal property is held not to be included in the term j>i«6- lic.^^ '" Laws 1879, p. 275, g 1; As to evidence sufficient to bind property of a married woman. See Willard v. Magoon, 30 Mich. 273 ; Phillips on Liens, 138 ; Schwartz v. Saunders, 46 111. 17. " Phillips on Liens, p. 158 ; McCarty v. Carter, 49 111. 53. IS Gaty V. Casey, 15 111. 190; Steiglemau v. McBride, 17 Id. 300. " Phillips on Liens, l\ 179 to 186. 612 BILL TO ENFOECE MECHANICS' LIENS. SECTION III. WHEN LIEN TO ATTACH — NOTICE AND SEEVICE. Such lien will not attach unless such person, contractor, or sub-contractor, labor or material man, shall file in the office of the Eegister of Deeds of the county or counties in which the real estate to be aflfected is situated, a written notice claiming a lien for the labor or material famished, and describing substantially the contract, the character of the services, and the description of the premises, i* A mechanic's lien cannot be enforced against land of which there is no written identification in the agreement for the work, (a) The Eegister of Deeds is required to index all such notices of intention to claim a lien, in a book to be kept for that pur- pose, and such filing wUl have the same effect as to notice, as the recording of a mortgage. '* A copy of such notice must be served on such owner, part owner, lessee, or other person claiming an interest therein under such land contract, or otherwise, if he can be found within said county, or on his duly authorized agent in charge of said premises. But such filing and service shall not bind said premises, and said owner, and other persons mentioned, for any amount beyond the sum which is due at the time of such filing and service, or which may thereafter become due from said persons to the original contractor at or after the time of such service. 1^ 1* Laws of 1879, p. 275, ? 2. (a) Hammond v. Wells, 45 Mich. 11; West v. Laraway, 28 Mich. 464; Wilson V. Jones, 46 Id. 348. " Laws of 1879, p. 275, § .S. " Laws of 1879, p. 275, §? 2, 3 ; Roberts v. Miller, 32 Mich. 289. BILL TO ENFOECE MECHANICS' LIENS. 5l3 The lien commences on the delivery of the materials, or the performance of the labor, and not from the date of the con- tract.!^ Such contractor or sub-contractor filing such claim of lien shall from time to time, whenever required by any of the per- sons mentioned therein 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 furnished to date of statement and then unpaid, as nearly as can then be ascertained, and the person claiming such lien shall serve on said owner, or agent in charge of the premises, if required by such owner or agent, once each week after the time of filing and serving notice of his said in- tention to claim such lien, a statement of the amount due as near as he can estimate the same at the time of the furnish- ing of such statement. He shall also, 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 lands or buildings to be affected thereby are situ- ated, i* Proof of Service of Notice of Claim. — He must 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 otherwise, and unless such affida- vits 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, i' Prior Mortgages. — Mechanics' liens are subject to existing prior mortgages on the same premises.^" » ' Hunter v. Blanchard, 18 lU. 318. '» Laws of 1879,p. 276, §4. 1" 2 Comp. L. 1871, i 6792, as amended by Laws of, 1879. p. 276, ? 4. " Phillips on Liens, §g 67, 232; Pride v. Viles, 3 Sneed, (Tenn.) 125; Bridwell V. Clark, 39 Mo. 170 ; Walker v. Hijo, 1 Cal. 183, 514 BILL TO ENFOECE MECHANICS' LIENB. Mr. FMUips in his work states that as a mortgagee has no vested rights in im^|ovements erected subsequent to his mort- gage, the legislature may provide that the contractor may have a priority of lien upon such improvements ; but subject to the mortgagee's lien on the land.^* Discharge. — Like in other contracts, the benefit of a lien may be waived. When the contractor takes other security than his lien, either on property or of persons, in payment for his labor or materials, his statutory lien will be discharged. ** But it must be expressly agreed that the new security is taken as absolute payment. 2* The statute permits the creditor to commence a personal action for the value of his labor or materials, as well as to foreclose his lien.'* Tender. — The lien will be discharged by a proper tender of the amount due. 2 5 [See " Tender," p. ibl.'i "1 Phillips on Liens, ? 238; Newark Co. v. Morrison, 2 Beas. Ch. (N.J.) 133 ; Otley v. Haviland, 36 Miss. 19 ; Hawley v. Henderson, 34 Id. 261 ; Cros- key V. N. W. M. Co., 48 HI. 484. 8 2 Phillips on Liens, Chap. 24, p. 389; Gardner v. Hall, 29 111. 277 ; Cros- key V. Corey, 48 111. 444. 3 8 Au Sable R. B. Co. v. Sanborn, 36 Mich. 358; And see Jennison v. Par- ker, 7 Mich. 356 ; Dudgeon v. Haggart, 17 Id. 273 ; Breitung v. Lindauer, 37 Id. 217; fnre ffurst, see Review of Decisions by Emmons,J. 13 National Bank Reg. 455; Van Court v. Bushnell, 21 111. 626. 2* Laws 1879, p. 278, \ 21; Chapman v. K. L. & S.'Co., 20 Mich. 358 ; De- lahay v. Clement, 3 Scam. (111.) 201. 8 6 Moynahan v. Moore, 9 Mich. 9; Eslow v. Mitchell, 26 Id. 501; Duty of officer to discharge, see Law of 1873, p. 217. BILL TO ENFOBCE MECHAIs'lCS' LIENS. 515 SECTION IV. UMITATION OF LTEN. The several liens upon the same property under any con- tract mentioned in the Act are to be deemed simultaneous mortgages, and will continue only for sixty days after the affi- davit of the amount due is filed as required by Section 4 of said Act, unless proceedings are begun within that time to enforce the same.^* Any creditor may maintain an action at the common law in like manner as if he had no such lien for the security of his debt." SECTION V. PAKTIES. All per^ns having rights in the property affected, or to be affected by the liens so filed and recorded, and all persons holding like liens so filed and recorded, and those having filed notice of intention to claim a lien, must be made parties to such suit."* " Lawsofl879,p. 276, ?5. >' Lawsof 1879,p. 278, ?21. " Laws of 1879, p. 277,? 6; Lomax v, Dore 45 111, 379; Raymond v. Ewing,26Id.329. 516 BILL TO ENFORCE MECHANICS' LIENS. Persons holding liens or having filed notice of intention to claim a lien, or any person having rights in such property, may make themselves parties to such suit on motion and notice to the complainant.^* If it shall appear that any party has had insufficient notice of any proceeding, such further notice shall be given as the Court may think just. ^' A widow who only claims dower in the premises, is not a proper party. ^' If the creditor in the contract shall die before the com- mencement of a suit thereon, the same may be prosecuted by his executors or administrators, or if commeiiced in his life- time it may be prosecuted by them as it might have been by the deceased, if living.*" SECTION VI. BILL OR PETITION. Proceedings to enforce such lien may be by bill or petition in chancery on oath. The complainant should state therein the character in which he sues, the nature of the contract, the kind of materials furnished, or the character of the labor, the description of the premises, the nature of the claim or title by which they are held, and the recording and service of the notice of the claim. The bill or petition should also aver the performance of the conditions of the contract and the amount due, and such other facts as may be necessary to a full understanding of the rights of all the parties concerned. 2« Laws of 1879, p. 277, § 6: Lomax v. Dote, 45 111. 379; Raymond «. Ewing, 26 Id. 329. a» Shaeffer v. Weed, 3 Gilm. (111.) 511. no 2 Comp. L. 1871, § 6811, as amended by Laws of 1879, p. 278, ? 23. BILL TO ENFOECE MECHANICS' LIENS. 617 As the proceeding is a special one, and in derogation of the common law, and seeks to control the title to real estate, every substantial requisite, and every fact essential to jurisdic- tion should appear upon the record, and be distinctly and affirmatively proved. ** In setting up the title of the respondent to the lands des- cribed in the petition, it is not sufficient to set forth the state of the title to the premises at the time of the filing of the bill, but it must be made to appear that respondent 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 furn- ished.^^ All bills sworn to are made by the Act to be evidence of the matters therein charged, unless denied by answer under oath.'* Ids Pendens. — On filing a bill or petition, a notice of lis pendens must be filed with the Eegister of Deeds of the county where 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, with like effect.'* Jurisdiction. — The statute provides that a suit to enforce a mechanics' lien will not be dismissed because the matter in dispute is below one hundred dollars.'^ Security for Costs; Non Besidents. — Every bill or petition filed by a non-Eesident of this State, shall be endorsed in the same manner that declarations are required to be endorsed in «i Clark V. Raymond, 27 Mich. 456; Willard v. Magoon, 30 Id. 274; PHil- lipson Liens, Ch. 34, p. 545; Cook v. Heald, 21 lU. 429; Bush v. Connelly, 33 Id. 448. " Willard v. M^oon, 30 Mich. 273. ' * Laws of 1 879, p. 276, ? 6 ; Under a prior law the bill was not evidence ; Roberts v. Miller, 32 Mich. 289 ; Clark v. Adams, 33 Id. 159. " Laws of 1879, p. 276, ? 6. " 2 Comp. L. 1871, \ 5059 as amended by Laws of 1881, p. 119; Under prior statute, see 39 Mich. 511. 518 BILL TO ENFORCE MECHANICS' LIENS. the like, cases, by some responsible person, as security for costs. ^* Oross-BUls. — Intervening or cross-bills must be under oath. * "> Amendments. — Amendments may be made to any bill or cross-bill at any time before final hearing.*' SECTION vn. HEAHING. Every material question of fact must be submitted to a jury, if required by either party, or if it shall be thought proper by the Court ; and such trial shall be had upon a ques- tion stated, or upon an issue formed under the direction of the Court, or otherwise, as it shall order.** The verdict of the jury under such issues is not decisive or controlling upon the Court as at common law. It is analo- gous to a verdict on a feigned issue in a Chancery cause, and intended merely to aid the Court by the examination of wit- nesses in its presence.*' "Where the alleged contract under which work is claimed to be done, is an oral one, and its terms are disputed, the lien will not be sustained unless the evidence of the petitioner is clear and decisive as to the terms of the contract, and so pre- ponderates as to satisfy the Court of the correctness of his alle- gations.*" " Laws of 1879, p. 279, ? 24. >' Laws of 1879, p. 278, ? 6. »» 2 Comp. L., § 6798, as amended by Laws of 1879, p. 277, ? 10. »' Willard v. Magoon, ,30 Mich. 273; Dunn v. Dunn, 11 Id. 285; Wood V. Wood, 2 Paige, 109. " Clark V. Raymond, 27 Mich. 456. •BILL TO ENFOECB MECHANICS* LIENS. 519 The Court must examine all the claims that shall be pre- sented, 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 absolutely, and without any condition, although not then payable, shall be allowed, with a rebate of interest, to the time when it would become payable.*^ Where the owner of the land failed to perform his part of the contract, and by reason thereof, the other party, without his default, is prevented from completely performing his part, he will be entitled to a reasonable compensation for as much thereof as he has performed, in proportion to the price stipu- lated for the whole, and the Court must adjust his claims accordingly.*^ SECTION VIII, DEOEEE AND SALE. Upon a final decree the Court may order a sale of the build- ings 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 discharged, or make such other order or disposition of the premises as shall be just. If upon the coming in and confirmation of the final report, any portion of the liens shall still be unpaid, the Court may *' 2 Comp. L., § 6799, as amended by Laws of 1879, p! 277, § 11. *' 2 Comp. L., 2 6800, as amepded by Laws of 1879, p. 277, J 12- 520 BILL TO ENFORCE MECHANICS' LIENS. enter judgment and decree for the same, and execution shall issue as upon other decrees or judgments of the Court.** The final decree sustaining a lien should expressly adjudge the existence of contract relations between the parties, and the establishment of the alleged lien upon the property described.** Costs. — The costs in all cases are subject to the discre- tion of the Court, and must be paid out of the proceeds of the sale, or by any of the parties in the suit, as justice and equity may require.*® 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 shall be suf&cient to satisfy all the claims proved in the case, the Court may order a sale of that part if it shall appear to be most for the interest of all the parties concerned.* * Sales under decrees shall be made in the same manner as in ordinary cases of mortgage foreclosure, unless otherwise directed by the Court. *^ BedempUon. — All lands sold under any order or decree of the Court, may be redeemed at any time within fifteen months from the time of filing such petition or bill for such foreclos- 47 ure. " Laws of 1879, p. 277, ? 13. As to discharge of decree, see Laws 1873, p. 217. See Phillips on Liens, Chap. 41, p. 546. 44 Willard v. Magoon, 30 Mich. 273. 4B Laws of 1879, p. 278, \ 20. " Lawsof 1879, p. 277, \ 14. 4 ' Laws of 1879, p. 278, g 18. On foreclosure sales notice is to be given in the same manner as on sheriff's sales. Laws of 1877, p. 12. BILL TO EXFOEOE MBCHAKICS' LLENS. 521 SECTION IX. DISTEIBUTION OF PROCEEDS. Distribidion of Proceeds. — ^Where 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 distri- bute 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 proportion 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.** When Proceeds to be Paid Into Court. — If such claims should not have been ascertained when the sale is ordered, or if for any other reason it should be deemed proper to postpone the order of distribution, the Court may direct the officer to bring the proceeds of 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 cannot be properly distributed at once, the Court may make two or more successive orders of distribution, as the circumstances may require.*' Surplus.— Bhonld there be any surplus of the proceeds of 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 execution " Lawsofl879, p. 277, ?15. *' Lawsof 1879, p. 278, i 16. 66 522 BILL TO ENFOECE MECHANICS' LIENS. in like manner as if it proceeded from a sale made on an exe- cution.^" Attaching Oreditor^s Priority. — When there are several attaching creditors, they will, as between themselves, be enti- tled to be paid, according to the order of their respective attachments. Lien- Creditors. — But when several creditors, who are enti- tled to the lien provided for in this chapter, have all equal rights as between themselves, and the fund shall be insufii- cient to pay the whole, they must share it equally in propor- tion to their respective claims.^ ^ Discharge ; Penalty. — When the debt secured by such lien is fully paid, the creditor must execute to such owner, part owner, lessee, or other person having an interest or title in such lands, building or structure, affected by such lien, a discharge as in case of a discharge of a mortgage, or shall endorse such dis- charge on 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 have been fully paid'* SECTION X. APPEAL. Appeals from final orders or decrees may be taken in the same manner as is provided for appeals in ordinary chancery cases. But they will not be allowed when such order or decree has been paid and satisfied in whole or in part.^' The practice in having the evidence certified to the Supreme Court should be the same as in cases heard in open court. [See Supreme Gt. Prac. p. 250] »« Laws of 1879, p. 278, ? 17. »» Laws of 1879, p. 278, nS- " Laws of 1879, p. 278, ? 22. "« Lawsof 1873, p. 119; Prior /o tits /avi no rif At of appeal existed: ChA. y. Raymond, 26 Mich. 277, OHAPTEE XLIII. QUIETING TITLE. "WMle this subject pertaius rather to jurisdiction [than practice, yet as the statute has introduced a broader remedy,' we call attention to the change. Bills of peace under the old practice are allowed only when the complainant has satisfactorily established his right at law,* or when the persons who controvert the right are so numerous as to render an issue under the direction of the Court neces- sary to bring in all the parties concerued and prevent a mul- tiplicity of suits. 2 Where a party holding the legal title seeks to enforce it as against a person in possession under a title claimed. to be invalid, the proper remedy is ejectment, as a court of equity will not try a title at law.* But when a party has an equitable cause of action against another, coming within any recognized rule of equity jurisdic- tion, such as the cancelling and delivery up of invalid convey- ances, etc., such right, irrespective of the statute, can be enforced in equity whether the complainant is in possession or not.* • Lapeer Co. v. Hart, Harr. Ch. 159; Willard's Eq. 323; Eldridge v. Hill, 2-Jolins. Ch. 281; Adam's Eq. marg. p. 199; Story's Eq. Jur. H 852,860; Mitf. Eq. PI. 143, 144. » Nicoli V. Trustees, 1 Johns. Ch. 166. ' King V. Carpenter, 37 Mich. 366. * King V. Carpenter, 37 Mich. 366; Meth. Ch. v. Clark, 41 Id. 739; Row- land V. Doty, Harr. Ch. 7 ; Whipple v. Farrar, 3 Mich. 437 ; Salisbury v. Miller, 14 Id. 160; King V. Harrington, lb. 532; Ormsby v. Barr, Jl Id. 474; Ornisby v. Bair, 22 Id. 80 ; Jones v. Smith, lb. 366; Pettit v. Shepherd, 5 Paige, 493 ; Ham- Uton V. Cmnmings, 1 Johns. Ch. 517 ; Mitf. Eq. PI. 87 ; Story's Eq. Jur. H 700, 706 523 ' 524 QUIETING TITLE. Under the code of 1833, the court of chancery had juris- diction to quiet the title of the legal owner of the land in pos- session of the same, as against any~one setting up a claim thereto. 5 The statute was afterward amended so as to entitle the owner of the equitable title to file his bill.^ In 1840 a statute was passed which provided that any per- son having the actvM possession and UgcH or equitable title to lands, might 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 should establish his title to such lands, the defendant would be decreed to release to the complainant all claim thereto and pay costs, unless the defendant disclaimed all title to such lands and released to the complainant, in which case the Court might award such costs as it deemed just.' Its design was to enlarge the powers of equity in regard to quieting titles by allowing a decree in favor of a party in pos- session, without the necessity of repeated trials at law. The statute by its terms, is confined to cases in which com- plainant is in possession, and could not therefore institute a suit in ejectment to test the validity of defendant's claim, but would be compelled to wait till the defendant should choose to assert his claim by suit ; the real owner being in the meantime liable to lose the evidence by which his own claim, might be sustained and the adverse claim defeated, his title for that reason remaining unsalable, and his property depreciated.' The jurisdiction of equity to quiet title is intended to reach persons out of possession, who cannot for that reason be compelled to try their rights at law. It is not intended to dis- pense with legal proceedings when they can be had without obstruction.' » Rowland v. Doty, Harr. Ch. 3. « 2 Comp. L. 1871, § 5072. ' Laws of 1840, p. 127, ? 1 ; Rev. Stat. 1846 p. 360, ? 36 ; 2 Comp. L. 1871, § 5072. 8 Holbrook v. Winsor, 23 Mich. 397 ; Moran v. Palmer, 13 Id. 368. » Barron v. Robbins, 22 Mich. 42 ; Stockton v. Williams, Walk. Ch. 120 ; S. C. 1 Doug. 540. QUIETING TITLE. 525 Courts of equity are not the proper tribunals for settling titles to land, i" A bill to quiet title will not lie against one in possession, or on a vacant possession, except upon some equity that cannot be enforced at law.^ ' In a suit to quiet title under the statute, complainant is only bound to make out a presumptively good title, if not rebutted.i2 The fraudulent acquiring of possession of premises by a party who has a remedy by ejectment, will not authorize him to sustain a bill to quiet title. ' ^ Possession of a part of the premises in the right of the entire estate is sufficient if there be no adverse holding, ^ * and the bill may include parcels of land held under the same title contracted to others, and in their possession.^ ^ A biU to quiet title filed by a complainant, who, though averring possession of the premises, is not shown to be in actual possession, against a defendant shown to be in posses- sion, and nothing appearing to prevent proceedings at law, cannot be maintained. ^ ^ A biU to remove a cloud upon the complainants' title will not be sustained when by the case made by the bill the alleged cloud appears to be supported by an equitable right in the defendant." When purely legal titles are brought into litigation under the statute regarding the quieting of titles in equity, the sta- 1° Blackwood V. Van Vleet, 11 Mich. 255; Devaux v. Detroit, Harr. Ch. 98 ; Munson v. Munson, 28 Conn. 582. 'I Barron V. Robbins, 22 Mich. 35 ; Jenkins v. Bacon, 30 Id. 154 ; And see Blackwood V. Van Vleet, 11 Id. 252; Tabor v. Cook, 15 Id. 322. IS Hall V. Kellogg, 16 Mich. 135 ; Rayner v. Lee, 20 Id. 384 ; Hanscom v. Hiutnan, 30 Id. 419; Hardy v. Powell, 40 Id. 413. " Stetson V. Cook, 39 Mich. 755. " Fitzhugh V. Barnard, 12 Mich. 104. " Eaton V. Trowbridge, 38 Mich. 454. •« Barron V. Robbins, 22 Mich. 35. i» Torrent v. Musk, Boom. Co. 22 Mich. 21. 626 QUIETING TITLE. tutory requisites mtist exist; but equitable remedies existing before the passage of the statute remain.^ * 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 possession. *' A bill to quiet title to an entire estate will lie even when an action of ejectment is pending against a distinct part of the land, if judgment for defendant therein would still leave the title in disputer^ " Cloud on TiMe. — A cloud upon one's title is something which constitutes an apparent incumbrance upon it, or an apparent defect in it ; something that shows j)Wma/ac*e some right of a third party either to the whole or some interest in it.^^ And where one makes such a claim to the title as prevents a sale for a fair market value, a cloud is also created. " 2 A cloud rests on title so long as it is questionable if defend- ant's title is not prima facie better than complainant's.^^ A bill to remove a cloud from the title to lands which deduces complainant's title through a judicial sale, cannot be sustained where the proceedings which were the basis of such sale, and upon which the validity of complainant's title depends, are shown to be void for jurisdictional defects.^* Tax Liens. — If an alleged tax has no semblance of legality, and if upon the face of the proceedings it is wholly unwar- i» Ormsby v. Barr, 22 Mich. 80; Tabor v. Cook, 15 Id. 322. " Dale V. Turner, 34 Mich. 406. '<> Eaton V. Trowbridge, 38 Mich. 454. 21 Detroit v. Martin, 34 Mich. 173; Story's Eq. lur., ? 700, note and VOOfl, 12th ed. ■ "' 3 Waite's Actions at L. & Eq., and cases cited; Standish v. Dow, 21 Iowa 369. " Eaton V. Trowbridge, 38 Mich. 454. As to indefinite claim, see Ely v. Hergersell, [June Term, 1881], 46 Mich. " Griswold v. Fuller, 33 Mich. 268. , The reverse doctrine was held in Campbell v. McCahan, 41 111. 46 ; Hodgen V. Guttery, 58 Id. 431 ; Fitts v. Davis, 42 Id. 391 ; Moore v. Munn, 69 Id. 591. QUIETING TITLE. 527 ranted by law, or for any reason totally void, so that any person inspecting tlie record and comparing it with the law, is at once apprised of the illegality, such tax, it would seem, could neither constitute an incumbrance nor an apparent defect of title, and therefore in law could constitute no cloud, ^^ because aU per- sons are bound to take notice of such an illegality. '^ * Where, however, the illegality or fatal defect does not appear on the face of the record, but must be shown by evi- dence aliunde, so that the record would make out & prima facie right in the purchaser, equity will give relief. ^^ But if land affected by such illegal tax has been actually sold and conveyed for the tax, the original owner remaining in possession may file a bill in equity for the purpose of quieting his title, even though the defects are apparent of record.''' Where, by the provision of the charter of Detroit, a tax is declared to be a lien upon the premises assessed, it constitutes a cloud upon the title, and may if .illegal, be removed by a bill in Chancery. 2' Where the tax constitutes an apparent lien on the land, and might result in a sale and conveyance by a deed which would be prima facie evidence of title, a bill will lie if the tax be illegal.'" Parties. — ^Defendants cannot be joined unless they have a common interest in the titles involved. '' Persons who have conveyed all their interest in the premises, and set up no further claims, and who cannot be affected by the result, ai<' not proper parties defendant.'^ A bill to quiet title as against sales to the State for unpaid taxes cannot be maintained as against the Auditor General, " Cooley on Taxation, 542; Detroit v. Martin, 34 Mich. 173. »« Detroit v. Martin, Supra; Story's Eq. Jut, ? 700a. ' ' Cooley on Taxation, 543, and cases cited. ' ' Cooley on Taxation, 544, note 2. " Scofield V. Lansing, 17 Mich. 437 ; Thomas v. Gain, 35 Id. 156. ] •0 M. H. & O. R. R. V. Marquette, 35 Mich. 504. •i Hunton V. Piatt, 11 Mich. 264 ; Woods v Monroe, 17 Id. 238 ; Ham. montree v. Lolt, 40 Id. 190; Adams Eq. marg., p. 200; Mitf. Eq. PI. 147, 148. • ' Hammontree v, Lott, supra. 528 QUIETING TITLE. unless the State consents to the suit, and designates that officer to represent it as a party defendant, (a) • BUI. — ^Although the bill may contain allegations insuffi- cient on a mere bill to quiet title, and such object be included in the prayer for relief, yet if the bill sets forth acts showing another established ground of jurisdiction, such as the cancel- lation and surrender of conveyances, the bill will be re- tained. ^^ Adhere in a description of premises, reference is made to the boundary line of a third person, the true location of such line is a necessary allegation, and must be clearly and defi- nitely set forth in the bill.'* Under a bill to quiet title, where the answer relies upon an adverse right depending entirely upon the location of the description, the proof of possession is not required to be as strict as where there is a defense distinctly set up and relied upon.'' A bill to quiet title which alleges complainant's seizin and possession, and that they have a direct chain of title from the Government, is not defective in the averment of ownership of the lands in controversy.'® The allegation in a bill of an offer to pay twenty-five dollars for a release of an invalid tax title, 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.'® The complainant is not bound to show by his bill that the claim set up by the defendant is one which would be prinui facie good at law.' ' {a) Burrell v. Auditor Genl., [June Term, 1881], 46 Mich. JVAen sheriff necessary party : Haddon v, Hemingway, 39 Mich. 615. «« Jones V. Smith, 22 Mich. 360. " Howell V. Merrill, 30 Mich. 282; Geney v. Maynard, 44 Id. 578. »» Verplank v. Hall, 27 Mich. 79. •• Hanscom V. Hinman, 30 Mich. 419. •' Holbrook v. Winsor, 23 Mich. 394. QUIETING TITLE. 529 Fraud. — Where fraud is alleged, specific allegations must be made in the bill that the proof may conform to it. Consider- able latitude will be aUowed in the introduction of evidence to sustain them.^* i Where a bill to restrain the collection of taxes shows pre- cisely the amount of the excess of the taxes which is claimed to be illegal, and only asks to have the collection of such excess restrained, it is not necessary to offer payment of the amount of the taxes legally chargeable. '* No formal tender is requisite before filing a bill to remove an invalid tax title.*" Under the statute of 1873, before an injunction to restrain the collection of any tax or assessment levied will be granted, the amount of the tax, with interest and charges to accrue, must be deposited with the Eegister in Chancery, and which the Court will order to be applied in payment of such tax, interest and charges, within ten days after final decree if such injunction is made perpetual. But taxes assessed for drainage purposes are not included in said statute.*^ Decree. — If the complainant succeeds in establishing his title, the Court will make a decree requiring the defendant to release to him all claim thereto.* ^ Costs. — ^Where the defendant by his answer, disclaims all right to the title in the land in controversy and offers a release thereof, costs will be awarded as the Court may deem just, otherwise the defendant will be decreed to pay them.*^ '« Damouth v. Klock, 29 Mich. 289; Fury v. Strohecker, 44 Id. 337; Pogodzinski v. Kruger, Id. 79; And see Tong v. Marvin, 15 Id. 60; Hale v. Chandler, 3 Id. 531 ; Hubbard v. McNaughton, 43 Id 221. " Clement V. Everest, 29 Mich. 19; And see as to costs: Connors v. De- troit, 41 Id. 128. *° Hanscom v. Hinman, 30 Mich. 419 ; As to costs : See Woods, v. Monroe, 17 Mich. 238; Estoppel: Damouth v. Klock, 29 Mich. 289; Laches: Boyce v. Danz, lb. 146; Upon other points : See Prout v. Wiley, 28 Mich. 164; Willetts V. Mandlebaum, 28 Id. 521; Peck v. Houghtaling, 35 Id. 127; Elanchard v. Tyler, 12 Id. 339; Stewart v. Carleton, 31 Id, 270. " Laws of 1873, p. 163. «» 2 Comp. L. 1871, \ 5072. 67 CHAPTEB XLIV. PROBATE OF FOREIGN WILLS. Whxn arid Mow Allowed. — Whenever it is necessary to mate probate in this State of the last -will of any deceased person, executed in a foreign country, where no probate afber the death of the maker is required or provided for, and the origi- nal will cannot be produced in this State for probate, the same may be proven and allowed in this State, by a full and complete copy thereof, in the Circuit Court in Chancery for any county in which the maker of such will left any property affected thereby.* Parties. — Executors, heirs, devisees, legatees, or any person interested in such probate, are authorized to file a bill or peti- tion in such Court in any county where the testator left any property.^ The BUI. — The facts necessary to give such Court jurisdic- tion, must be specifically set forth in such bill or petition. All persons interested in such probate must be made parties thereto, and the same proceedings to bring them before the Court must toe adopted as in other cases. ^ The bill should pray that an order be granted directing the will to be proved in the Court of Chancerj', upon a commis- sion to be issued, (or letters rogatory) directed to certain com- missioners named therein, to take the testimony of the proper persons to prove said will.^ 1 Laws of 1881, p. 85, ? 1. » Laws of 1881, p. 85, g 2 ; Matter of Easton's Will, 6 Paige, 183. « Laws of 1881, p. 85. 530 FEOBATE OF FOEEIGN TTOLLS. 531 Proceedings. — If upon the hearing of the application, it appears to the Court to be a proper case for the exercise of its jurisdiction, and the proceedings have been regular, the Court may appoint commissioners, or issue letters rogatory, to take the testimony of any officer, magistrate, or other persons hav- ing custody or possession of the original will, also ol the wit- nesses thereto, and of any other person whose testimony is required. The commission is similar in form to the commission to examine witnesses residing out of the State in other cases, and should be executed in a similar manner as near as may be. Persons authorized to contest the validity of such will may join in the commission, and should be permitted to name a commissioner on their part. They should also have reasona- ble notice of the time and place of executing such commission.* Proceedings on Return of Commission. — If upon a return of the commission it appears that a full and complete copy of such will is shown, and that the will is valid, and sufficient to pass real or personal property of the maker within this State ; that the same was executed in a foreign country ; that the maker is dead, and that the original will is retained in the for- eign country, and cannot be produced in this State for probate, and that the laws of such foreign country do not require or provide for the probate of such will after the death of the maker, such Court may admit said will to probate, or so much thereof as may be valid in this State. Proof should be taken of the general law of such foreign country concerning the execution and probate of wills. And if it does not appear that such law exists as statute or written law, it should be proved by parol.' Effect of Proof. — Such allowance and probate will have the same effect as though such will had been admitted to probate in this State, upon production and proof of the original wiU.^ « Matter of Atkinson, 2 Paige, 214. » Matter of Roberts' Will, 8 Paige, 446, « Laws of 1881, p. 85, 2 3. 532 PEOBATE OP FOREIGN WILLS. The statute directs that, on proof of sucli will, the probate thereof, with a transcript of the will, must be certified to, and filed in the probate court of the county in which such probate was made, whereupon such Court shall have the same power and jurisdiction over the estate of the deceased person as if the will had been proven and allowed therein.'' The proceedings thereon in the Circuit Comt will be governed by the rules and practice of said court. Appeal. — An appeal may be taken to the Supreme Court as in other cases.* ' Laws of 1881, p. 85, ? 4. » Laws of 1881, p. 85, g 5. CHAPTEE XLV. CONTEMPTS. Section 1. Nature and Kinds. 2. Disobedience of Order to Pay Money. 3. Contempts Other than for Non-Payment of Money. 4. Punishment of Contempts. 5. Effect of. 6. How Dibchakged. SECTION I. NATURE AND KINDS. Contempts may be divided into t^ro classes — Ordinary and extraordinary. Ordinary contempts relate to transactions between the par- ties ; as where a party refuses to appear or answer after appear- ing, or to obey an order of Court. These may be purged by a performance of the act required, and paying costs. This class has been treated of in the chapter relating to "Process for Appearance and Proceedings to Compel an Answer." Extraordinary contempts are those committed against the dignity of the Court, and which cannot be purged by mere satisfaction to the party, but may be punished by imprison- ment or fine. By the Compiled Laws of 1871, Chapter 182, it is provided 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 633 534 CONTEMPTS. in a cause or matter depending in sucli court, or triable therein, may be defeated, impaired, impeded or prejudiced in the several cases specified in the subdivisions of the section. ^ By the third sub-division of Section 5689, this power extends to parties to suits, attorneys, counsellors, solicitors, and all other parties, for the non-payment of any sum of money ordered by such court to be paid, or cases where, by law execution cannot be awarded for the collection of such sum, and for any other disobedience of any lawful order, decree or process of such court. By the eighth sub-division of said section it extends to all other cases where attachments and proceedings for contempts have been usually adopted and practiced in courts of record to enforce the dvU remedies of any party, or to protect the rights of any such party. ^ The statute also specifies certain acts committed in the immediate view and presence of the Court, which may be pun- ished as criminal contempts.* Those acts are: 1. Disorderly, contemptuous, or insolent behavior committed during its sitting, and directly tending to interrupt its proceedings, or to impair the respect due to its authority. 2. Any breach of the peace, noise or disturbance, directly tending to interrupt its proceedings. "When such misconduct is not so committed, on due proof by affidavit of the facts charged, a copy of such affidavit must be served on the party accused, a reasonable time to enable him to make a defense.* 1 2 Comp. L., ? 5689; Haines v. Haines, 35 Mich. 138; North v. North, 39 Id. 67. 1 Matter of Bleakley, 5 Paige, 311 ; Dias v. Merle, 2 Id. 494 ; Lansing v. Lansing, 4 Lans. 377. 8 2 Comp. L. 1871, §5690. * 2 Comp, L. 1871, ? 5691 ; Circuit Ct. Law Rule 6 requires personal ser- vice to be made, unless otherwise ordered. See also Supreme Ct. Rule 3. When counsel instructs a witness not to answer questions, see Heerdt v. Wet- more, 2 Robt. 697. Publication in newspapers by Attorney, see Ex Parte, Big^ 64, N. C. 202, Matter of Moore, lb. 398. CONTElQTS. 535 There are two material divisions (independent of miscon- duct, /acie cmWcb), of the proceedings under this statute. 1st. Where there is an order of Court for the payment of costs, or any other sum of money.' 2d. Where there is any other mis- conduct within the act. There is also a third class, viz : Where the misconduct is for disobeying a subpoena. No application to the Court in such case is necessary. An attachment against the person for contempt issued by the Eegister of the Court on affidavit, but without any order from the Court, is invalid, and is no justification in an action for false imprisonment.^ Where a party was enjoined from interfering with the pos- session of certain premises, and it appeared that he was actu- ally in possession at the time the injunction was issued, he cannot be punished for contempt in maintaining such posses- sion.^ An appeal by complainants from a decree dismissing the bill where a preliminary injunction had been granted, will not revive the injunction, and a party is not liable for disregard- ing it.* A party to a suit in another State cannot be committed under Section 5915 of the Compiled Laws for refusing to give his evidence under a commission issued in said suit to take it here. 8 The statute also provides for the punishment as for crimi- nal contempts, (a) They may be punished by fine or imprisonment in the county jail where the Court may be sitting, or both, at the dis- 6 2 Comp. L. 1871, ? 5692. « Thompson v. Ellsworth, 39 Mich. 719. " People V. Simonson, 10 Mich. 335. ' Brevoort v. Detroit, 24 Mich. 323. • Matter of John Adams, 7 Mich. 452. (a) 2 Comp. L. 1871, §? 5666 to 5672. 536 CONTEMPTS. cretion of the Court. But the fine must in no case exceed the sum of two hundi-ed and fifty dollars, nor the imprisonment thirty days ; and when any person shall be committed to prison for the non-payment of any such fine, he must be discharged at the expiration of thirty days, (a) SECTION II. DISOBEDIENCE OF OEDEE TO PAY MONEY. The statute also provides that where any rule or order of the Court shall have been made for the payment of costs, or any other sum of money, and proof by affidavit shall be made of the personal demand thereof and of a refusal to pay it, the Court may order a precept to commit the person so dis- obeying to prison, until such sum and the costs and expenses be paid.i" But before a party can be imprisoned under the statute providing for punishment for refusal to obey an order for the payment of costs, or any other sum of money, he must have an opportunity to be heard.n Before committing a party to prison for the non-payment of interlocutory costs, a personal demand of the party himself is necessary. A demand upon his solicitor is not sufficient.^* (a) lb. § 5667. i» 2 Comp. L. 1871, ? 5692; Brown v. Brown, 22 Mich. 299; Brockwayv. Copp, 2 Paige, 578. 1' Steller v. Steller, 25 Mich. 159. ' 2 Lorton v. Seaman, 9 Paige, 609 ; See Law Rule No. 6 ; also -Supreme Ct Rule 3. CONTEMPTS. 537 A party who is committed to jail on a precept for the non- payment of costs or other sum of money, is not exempt from imprisonment, but he is entitled to the jail liberties.^ ' If the commitment be for the non-payment of a. fine imposed on conviction for contempt, he must be confined in prison, i* The process of contempt to enforce ci-vdl remedies is one of extreme resort, which cannot be justified if there is any other adequate remedy ; but it is allowable to compel obedience to an order requiring payment of temporary alimony. * ^ SECTION III. CONTEMPTS OTHEE THAN FOE NON-PAYMENT OP MONET. Contempts coming under this head have been mentioned in Section 1. Interference with property in the hands of a receiver, and breaches of injunctions regularly issued, are the occasion of frequent action on the part of the Court, i' [See Injunction.] A party is guilty of contempt when he disobeys an order served on his solicitor if he had knowledge of such service. Also if the party is informed of the granting of an order for an injunction by a person who was in court at the time the same was granted, or if he were present in court when it was made.i^ " Patrick v. Warner, 4 Paige, 397 ; People v. Bennett, lb. 282. " People V. Bennett, 4 Paige, 282. " Haines v. Haines, 35 Mich. 138 ; North v. North, 39 Id. 67. " Noe V.Gibson, 7 Paige, 513; People v. Spalding, 2 Id. 326; Hawley r. Bennett, 4 Id. 163; Rogers v. Patterson, lb. 450; Sullivan v. Judah, lb. 444. " People V. Brow'er,*4 Paige, 405; Hull v. Thomas, 3 Edw. 236; Osborne V. Tenant, 14 Ves. 136. 68 538 CONTEMPTS. WTiere a party's disobedience is the result of taking the advice of counsel given in good faith and relied upon, the Court ■vrill sometimes modify the order so as to direct that the defendant be adjudged guilty of the contempt charged, and be fined unless he proceeds to the performance of the order.' * It is no answer to a motion to punish a party for a contempt for disobedience of an order that an appeal has been taken from the order and an undertaking filed. *' The belief of a person that the Court had no jurisdiction to issue an order, furnishes a very slight excuse, if any, for his disobedience. He who relies upon such belief, acts at his own peril. 2 « Method of Proceeding. — In all cases except when the con- tempt was for the non-payment of money, the statute provides two modes for proceeding against parties as for contempt to enforce civil remedies, viz : By attachment to bring the party into court to answer the alleged contempt, or by an order for the accused to show cause why he should not be punished for his alleged misconduct. ^^ 1. By Attachment. — When the complaining party decides to proceed by attachment, he must first lay the foundation by affidavits or other evidence showing that the party is in con- tempt, as provided in Section 5691, of the Compiled Laws of 1871, already referred to.^^ It is also required by said section that a copy of such affi- davit be served on the party accused a reasonable time, to enable him to make his defense, except in cases of disobedi- ence to any rule or order requiring the payment of money, and of disobedience to any subpoena, ^s l» Billings V. Carver, 54 Barb. 40. " Leland v. Smith, 3 Daly, 309. »» People V. Compton, 1 Duer, 512. " 2 Comp. L. 1871, § 5693. •> Thompson v. Ellsworth, 39 Mich. 719; Albany Bank v. Schermerhom, 9 Paige, 372; Pitt v. Davison, 37 N. Y , 235. »« 2 Comp. L. 1871, J 5691; 2 HofT. Ch. Pr. 433, CONTEMPTS. 639 An attachment will be issued whenever the affidavits in relation to the alleged contempt are conflicting, that the com- plainant may compel the attendance of witnesses to prove the fects.2* The order for the attachment should merely direct the issu- ing of the writ, or only declare that it appears to the Court there is probable cause for the issuing. ^^ The statute provides that whenever a nile shall have been entered in any court according to the practice thereof, requir- ing 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 disobedience of such rule may issue according to the practice of the Com-t, to arrest such officer or person to answer for such disobedience, without special appli- cation to the Court. ^* Bail Bond for Appearance. — Whenever an attachment shall issue by the special order of the Court, under the provisions of the statute, the Court must direct the penalty in which the defendant shall give bond for his appearance to answer. 2' In all other cases when a party is entitled to an attachment without the special order of the Court, he may make applica- tion to a Judge of the Court, or to some officer authorized to perform the duties of such Judge, and who, upon due proof of the facts, shall direct the penalty of the bond to be given for his appearance, and shall endorse such order on the writ.^* Provision is also made by the statute for the arrest and discharge of a defendant on his executing the proper bond.^" If the party alleged to be in contempt is unable to travel, or to attend the court personally, from sickness or otherwise, '* McCredie v. Senior, 4 Paige, 378 ; Ackroyd v. Ackroyd, 3 Baly, 38. •^ McCredie v. Senior, supra. 2« 2Comp. L. 1871, ? 5694. " 2Comp.L. 1871, ? 5698. »« 2 Comp. L. 1871, § 5699. »» 2 Comp. L. 1871, § 5700 to 5704. 540 CONTEMPTS. it -will be a sufficient excuse for not bringing him before the Court. «-« Upon the return of any attachment, the officer executing the same must return the bond, if any, taken by him of the defendant, and file the same with such attachment.* * If such officer neglect to return any writ of attachment delivered to him, by the return day specified therein, an attach- ment may be issued against/ him of course, upon being allowed by a Judge of the Court, or other proper officer, upon due proof of such default.** Such allowance shall state the cause of issuing the same, and that the defendant is not to be discharged upon bail until ordered by the Court.** The officer to whom such attachment shall be delivered, must execute the same by arresting and keeping the defendant in his custody, bringing him personally before the Court, and detaining him in such custody until the order of the Court.** "When any defendant arrested upon an attachment, shall have been brought into court, or shall have appeared therein, the Court, unless the contempt is denied, must cause interrog- atories to be filed, specifying the' facts and circumstances alleged against the defendant, and requiring his answer thereto ; to which the defendant shall make written answers on oath, within such reasonable time as the Court shall allow.* ^ The Court may receive any affidavits or other proofe con- tradictory of the answers of the defendant, or in confirmation thereof; and upon the original affidavits, such answers and subsequent proof, must determine whether the defendant has been guilty of the misconduct alleged.** «» 2 Comp. L. 1871, ? 5721. •1 2 Comp. L. 1871, ? 5704. •2 2 Comp. L. 1871, ? 5705. •» lb. •« 2 Comp. L. 1871, ? 5706. »» 2 Comp. L. C. ? 5707 ; Pitt v. Davison, 37 N. Y. 235. »« 2 Comp. L. 1871, ? 5707; Pitt v. Davison, 37 Barb. 97; What questions may be considered; People v. Kidd. 23 Mich, 440, CONTEMPTS. 541 The practice of filing interrogatories and giving the party an opportunity of answering in proceedings for commitment, is demanded only in cases where punishment can be inflicted by fine.*' The interrogatories must be confined to the subject matter of the misconduct alleged, and not to any previous proceed- ing.** A copy of the interrogatories should be served upon the defendant. * ^ They must be filed, and answers thereto obtained, unless the accused upon being brought into court under the attachment admits the contempt.*" It is also proper to direct a reference to a commissioner to examine the defendant upon the interrogatories and other proof, and to certify as to the contempt.* ^ Under this mode of proceeding, no order for the punish- ment of the accused by fine or imprisonment can be made unless he shall have been personally brought before the court, or has voluntarily appeared.* ^ 2. Order to Show Cause. — The proceedings by an order to show cause why the party should not be punished for his alleged misconduct, must have a foundation laid by affidavit or other evidence as in attachment.** The order should require that the party show cause why he should not be punished for his alleged misconduct, and plainly specify the nature of the application.** The order to show cause and copies of the affidavit and papers on which the application is founded, must be person- " Matter o{ Watson, 5 Lansing, 466. " Albany Bank v. Schermerhorn, 9 Paige, 372: Brown v. Andrews, 1 Barb. 227. " People V. Lovett, 2 Paige, 103. *» Albany Bank v. Schermerhorn, supra. *' Matter of Vanderbilt, 4 Johns. Ch. 57; Cumming v. Wagoner, 7 Paige, 603; People v. Lovett, 2 Id. 103; McCreedie v. Senior, 4 Id. 381. " Pitt V. Davison, 37 N. Y. 235. *' Albany Bank v. Schermerhorn, supra. ** Pitt V. Davison, 37 Barb. 97. 542 CONTEMPTS. aUy served upon the accused for such reasonable time as the Court may direct.** If upon the hearing of the order the defendant appears and denies the contempt, the same proceedings must be had as upon the return of an attachment against him.** If the party neglects to appear, or shows no sufficient cause, the Court may make a final order adjudging him guilty of the alleged contempt, and imposing the proper punishment.* ' If the party charged with misconduct be 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 attachment against any person, without the special order of the Court, and such per- son shall be in custody, as specified as above, a writ of habeas corpus to bring up such person may be allowed by any Judge of the Court, or by any officer authorized to perform the duties of such Judge in vacation.*' Upon this writ the sheriff, in whose custody such party is, will be authorized to remove and bring him before the Court, and to detain him there until the further order of the Court.* ^ Chancery Eule 100 directs that when a party is required to pay the costs of any interlocutory 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 affidavit and service of a copy of the order, and of such taxed bill. If a gross sum is specified in the order, within twenty days of service of a certified copy of the order. If he> neglects or refuses to pay such costs within twenty days of the time specified in the order, the adverse party, on * \ Pitt V. Davison, supra. <« McCredie v. Senior, 4 Paige, 378. *■> 2Barb. Ch. Pr. 278. «» 2 Comp. L. 1871, ?? 5695, 5696; Anon. 22 Wend. 635. *» 2 Comp. L. 1871, § 5697. CONTEMPTS. 543 affidavit of tlie 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 attachment against the delinquent.*" Proceedings on the Bail Bond. — If the defendant against whom an attachment shall have been issued and returned served, do not appear on the return day thereof, the Court may either award another attachment, or may order the bond taken on the arrest to be prosecuted, or both. * i Such order shall operate as an assignment of the bond to any aggrieved party who shall be authorized by the Court to prosecute the same, and such party may maintain an action , thereon in his own name, as assignee of the sheriff or officer to whom the same was given, in the same manner as in other actions on bonds, with condition to perform covenants other than the payment of money. *^ The measure of the damages to be assessed in such action shall be the extent of the loss or injury sustained by such aggrieved party, by reason of the misconduct for which the attachment was issued, and his costs and expenses in prose- cuting such attachment.*^ If there be no party aggrieved by the misconduct for which the attachment was issued, the Court, in case the defendant fail to appear according to the condition of the bond taken on the arrest, shall order the same to be prosecuted by the Attor- ney General, or by the Prosecuting Attorney for the county in which the bond was taken, in the name of the officer who took such bond.** [For application of the proceeds, and proceedings against the sheriff for accepting insufficient sureties, see Sections 5719 and 5720 of the Compiled Laws.] "> Ch. Rule 100. n 2 Comp. L, 1871, ? 5715. " 2 Comp. L. 1871, ? 5716. " 2 Comp. L. 1871, § 5717. " 2 Comp. L. 1871, ? 5718. 544 CONTEMPTS. SECTION IV. PUNISHMENT. If the Court shall adjudge the defendant to have been guilty of the misconduct alleged, and that it was calculated to, or actually did defeat, impair, impede or prejudice the rights or remedies of any party, in a cause or matter depending in such court, it shall proceed to impose a fine, or to imprison him, or both, as the nature of the case shall require.*^ If an actual loss or injury has been produced to any party by the misconduct alleged, the Court shall order a suflficient sum to be paid by the defendant to such party, to indemnify him and to satisfy his costs and expenses, instead of imposing a fine on such defendant ; and in such case, the payment and acceptance of such sum shall be an absolute bar to any action by such aggrieved party, to recover damages for such injury or loss. 5* In all cases other than those specified, the fine shaU not exceed over two hundred and fifty dollars over and above the costs and expenses of the proceedings.*' When the misconduct complained of consists in the omis- sion to perform some act or duty which is yet in the power of the defendant to perform, he shall be imprisoned only until he shall have performed such act or duty and paid such fine as shall be imposed, and the costs and expenses of the pro- ceedings.** »» 2 Comp. L. 1871, ? 5708; Albany Bank v. Schermerhom, 9 Paige, 373. "• 2 Comp. L. 1871, ? 5709; Haines v. Haines, 35 Mich. 138. »' 2 Comp. L. 1871, ? 5710; People v. Lovett, 2 Paige, 103. " 2 Comp. L. 1871, 2 5711. CONTEMPTS. 545 In all other cases where no special provision is otherwise made by law, if imprisonment be ordered, it must be for some reasonable time, not exceeding six months, and until the expenses of the proceedings are paid ; and also if a fine be imposed, until such fine be paid.^' In the first case, that of actual loss sustained, it may be necessary to ascertain the amount by a reference. The Court first takes proofs of the alleged misconduct, and if it finds the party guilty, then ascertains the damage by a reference, or a further reference. It is not proper to comprise the whole inquiry of contempt and damages in one order.*" A record of conviction for contempt punished summarily, may perhaps be comprehended in the single order and judg- ment. But when an attorney is tried for any other misconduct it can only be done on specific charges ; an opportunity for a full defense must be afforded so that there may be if necessary, a resort to an appellate court to determine their legal suffi- ciency.* > A party who alleges the violation of an order and proceeds for the contempt to punish the ofi'ender, must show with rea- sonable certainty the facts by which the charge may be estab- lished.* * The return of a commissioner charged with the execution of an order of Court, showing the failure of a person to appear and submit to an examination as required by the order, is suf- ficient foundation for a rule to show cause why an attachment for contempt should not issue, but the return should show the time and manner of service.* ^ The breach of an injunction regularly issued is a contempt of court, and in a proceeding against a party for such contempt " 2Cotiip. L. 1871, ?5713. "> 1 Hoff. Ch. Pr. 441. ' 1 Dickinson v. Dustin, 21 Mich. 561. «2 Verplank v. Hall, 21 Mich. 470. " Whipple V. Brown, Harr. Ch. 436. 69 546 CONTEMPTS. the Court will not look into the merits of the cause in which the injunction is issued.^* Order on Conviction. — The order convicting the party of a contempt in a proceeding to enforce a civil remedy, should recite the substance of the alleged misconduct, the adjudica-" tion of the Coui-t that the accused has been guilty thereof, and that such misconduct was calculated to and did impair, defeat, impede and prejudice the rights or the remedies of the prose- cution or the parties in the cause. It should also direct the payment of a fine sufficient to indemnify the party injured and satisfy the costs and expenses of the proceeding. The costs should be taxed and inserted in the order as part of the fine.®^ The amount of the fine must be fixed upon proof of the damages sustained according to the rules of law which would apply in an action for such damage. ^^ If the party is directed to be imprisoned, the order of com- mitment must specify the term of imprisonment.*^ As the statute (Compiled Laws, 1871, § 5709), provides that when the Court in contempt proceedings orders the pay- ment of money to the injured party, it shall stand " instead of a fine," the interposition of a criminal fine, in addition to the requirement of payment to the party, is erroneous and unwar- ranted.** A defendant cannot be held guilty of contempt for disobe- dience of a decree, requiring him to execute, acknowledge, and deliver to complainant a deed with special covenant of war- ranty, until a deed has been presented to him for execution and he has refused.*' «* People V. Spalding, 2 Paige, 326. «" 2 Barb. Ch. Pr. 280; Albany City Bank v. Schermerhom, 9 Paige, 372; See People v. Nevins, 1 Hill, 154. 6 6 Sudlow V. Knox, 7 Abb. N. S. 411 ; Erie R. W. v. Ramsey, 45 N. Y. 637. " 2 Comp. L. 1871, ? 5713. •» Haines v. Haines, 35 Mich. 139. «» Berry v. Innes, 35 Mich. 189. CONTEMPTS. 547 Process of Commitment. — The order for arrest being drawn up and entered, a process of commitment must next be made out. The statute directs that 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 process of commitment must specify the act or duty to be per- formed, and the amount of the fine and expenses to be paid.'"* Where imprisonment is ordered for a specified time, or until a fine be paid, the duration of such imprisonment must be expressed in such process.'' i If the process of commitment does not show that the defend- ant was convicted of a contempt, and that the sum he was ordered to pay was a fine imposed upon him on such convic- tion, the sheriff may permit the jail liberties.''^ When the party after being committed, perseveres in his refasal to do the act required, a sequestration may be issued, and his servants, agents, etc., may be prohibited from deliver- ing his property to him or applying it to his use, on pain of contempt. '' ^ No person can apply to the Court to punish a party for a contempt in the nature of a civil remedy unless interested in the subject matter.''* Mandamus lies to vacate an illegal injunction where a party affected thereby would otherwise have to submit to serious injury, or to run the risk of contempt proceedings. (a) A refasal to punish for contempt is not reviewable. (6) ■"> 2 Comp. L. 1871, | 5711, 5712; People v. Lovett, 2 Paige, 103; 2 Barb. Ch. Pr. 280 ; Albany Bank v. Schermerhom, supra. " 2 Comp. L. 1871, §? 5712, 5713. " People V. Bennett, 4 Paige, 282; 2 Barb. Ch. Pr. 281. 's People V. Lovett, 2 Paige, 103; Edmunds v. Crenshaw, 1 McCord, Ch. Rep. 253 ; 2 Barb. Ch. , Pr. 281 ; When will be reviewed on Habeas Corpus : Mat- ter of O. Bissell, 40 Mich. 63; Matter of John Morton, 10 Id. 208. " 2 Barb. Ch. Pr. 280. {a) Tawas R. R. Co. v. Iosco Circt. Judge, 44 Mich. 479. (h) Schwab v. Coots, 44 Mich. 463. 548 CONTEMPTS. SECTION V. EFFECT OF CONTEMPT ON PROCEEDINGS IN THE CAUSE. Besides the personal and pecuniary inconvenience to which a party subjects himself by a contempt of the process of the Court, he places himself in the further predicament of not being in a situation to be heard in any application -which he may desire to make to the Court. Hence it is a general rule that a party who is in contempt cannot apply to the Court for a favor, not a matter of strict right, until he has cleared his con- tempt and paid costs.'* But while a party who is in contempt will not be permitted until he is purged of it, to ask a favor of the Court, or take any aggressive proceedings against his adversary, yet it is his right to apply to the Court to set aside the order made against him if erroneous. So where there is a mere failure on his part to comply with the provisions of an interlocutory order before the contempt is fixed, he may so apply.'* The foregoing rule is confined to proceedings in the same cause, and will not prevent the party in contempt from making an application to the Court in another cause relating to a dis- tinct matter, although the parties may be the same.' ' A contempt is not actually incurred until the writ enforc- ing obedience to the order of the Court has been sealed.' ' " Peltier V. Peltier, Harr. Ch. 19; McClimg v. McClung, 40 Mich. 496; 1 Dan. Ch. Pr. Ch. x. § 3; 2 Barb, Ch. Pr. 281; Johnson v. Pinney, 1 Paige, 646 ; Rogers v. P.iterson, 4 Id. 4-'i0 ; Ellingwood v. Steven'^on, 4 Sandf. Ch. 366; Mussina v. Bartlett, 8 Porter, 277 ; Saylor v. Mockbie, 9 Jowa, 209 ; Field v. Hunt, 24 How. Pr. 463. '« Peltier v. Peltier; Harr. Ch. 19; 1 Dan. Ch. Pr. Ch. x. § 3, p. 505-6; A. & K. R. R. V. A. R. R. Co., 49 Me. 392; Brinkley v. Brinkley, 47 N. Y, 40; Ellingwood v. Stevenson, supra. " 1 Dan. Ch. Pr. lb.; Taylor v. Taylor, 12 Beav. 220, 228; Turner v. Dor- gan, 12 Sim. 504. ' » 1 Dan. Ch. Pr. Ch. 10, ? 3, p. 505-6 ; Atty. Gen. v. Shield, 11 Beav. 441 ; E. India Co. v. Henchman, 3 Bro. C. C. 372. CONTEMPTS. 549 SECTION VI. HOW CLEAEED, WAIVED, OE DISCHAEGED. An ordinary contempt in process, being a matter merely between the parties, may be cleared by the offending party doing the act, by the non-performance of which the contempt was incurred, and paying costs.'' Where process has been issued against a defendant in contempt for want of appearance or answer, but has not been executed, the defendant should enter his appearance or put in his answer, and pay or tender the costs of the contempt, if the amount can be liquidated. If not, he should tender such sum as will cover the probable amount.*" If the complainant's solicitor accepts the costs so tendered, it will be at his own risk if he afterwards puts the process in execution. If he refuses to accept the costs when tendered, the defendant must apply to the Court for an order that he be discharged; otherwise the contempt will continue. *i Where the process has been carried into effect, and the defendant is in actual custody, he cannot be discharged with- out an order, to be obtained either upon motion or petition.*^ If process of contempt has been issued against a defendant for want of an answer, he is entitled to be discharged from his contempt immediately upon his putting in an answer and paying or tendering the costs of his contempt ; and the Court " 1 Dan. Ch. Pr. Ch. x, 2 4, p. 507. »» 1 Dan. Ch. Pr. Ch. j,, § 4, p. 507; Snelling v. Watnus, 2 Paige, 314; Wilkin V. Nainby," 4 Haire, 473 ; Brown v. Lee, 11 Beav. 379 ; Broughton v. Martyn, 4 Bro. C. C. 296. ♦ "'Green v. Thompson, 1 Sim. & Stu. 121. " 1 Dan. Ch. Pr. lb. ; Gray v. Campbell, 1 R. & R. 323. 550 CONTEMPTS. will not detain him in custody till the sufficiency of his answer has been decided upon, unless he has already put in three answers which have been reported insufficient.** If after answer put in, the complainant excepts thereto, or takes a step in the cause, he waives the contempt, and can- not review the process or take any other advantage of it. Thus if the complainant moves upon an admission in the answer, he waives the contempt. So if he replies to the answer.'* But to have the effect of a waiver of the contempt, the step taken must be in the cause itself in which the contempt was incurred. Therefore where a complainant was in con- tempt for the non-payment of some costs, the filing of a cross- bill by the defendant was held not to be a waiver of the con- tempt by the defendant, so as to permit the complainant to make a motion in his own cause.' ' Where a process of contempt has been regularly issued, the defendant should apply to the Court on motion and notice to complainant, supported by affidavit, to set aside or dis- charge it with costs. And as has been already stated, the circumstance of his being in contempt will not preclude his making such an application.'* The Court will either decide the matter on such affidavits, or will refer it to a commissioner to inquire into the regular- ity of the proceeding. If a party wishes to discharge a process for irregularity, he must make his application before he complies with it ; other- wise he will be considered as waiving the irregularity." Indictment. — Persons proceeded against according to the provisions of this chapter will also be liable to indictment for '" 1 Dan. Ch. Pr. 508 ; Dupont v. Ward, 1 Dick. 133 ; BaUey v. Bailey, 11 Ves. 151. '* 1 Dan. Ch. Pr. 509; 2 Barb. Ch. Pr. 283; Haynes v. Ball,5 Beav. 140; Woodward v. Twinaine, 9 Sim. 301. " 1 Dan. Ch. Pr. Ch. x, g 4, p. 510; Gompertz v. Best, 1 Y. & C. Ex. 619. "« 1 Dan. Ch. Pr. lb. »' 1 Dan. Ch. Pr. lb., p. 512; Bound -,-. Wells, 3 Mad. 434. Contempts. 551 the same misconduct, if it be an indictable offense ; but the Court before which a conviction shall be had on such indict- ment, should take into consideration the punishment before inflicted in forming its sentence.'* Appeal. — ^An appeal to the Supreme Court will lie from an order of the Circuit Court, in Chancery, adjudging a party guilty of a contempt in violating an injunction, and awarding a sum of money to the opposite party to indemnify him for its violation.* ^ Also from an order adjudging a party guilty of a con- tempt and imposing a fine and costs for violating an injunction commanding him not to create a lien upon certain premises.'" Also for disobedience of an order requiring the restoration of property by a receiver. ^^ Also fi'om an order adjudgiuj^- defendant in a divorce suit guilty of contempt for non-payment of temporary alimony, and imposing fine and imprisonment.' ^ »8 2 Comp. L. 1871, § 5714. • » People V. Simonson, 9 Mich. 491. »" Romeyn V. Caplis, 17 Mich. 449; McCredie v. Senior, 4 Paige, 378; Spaulding v. People, 10 Id. 284. »i People V. Jones, 33 Mich. 303. " Haines v. Haines, 35 Mich. 138; What considered on Afpeal: Brewer v. Kidd, 23Mich. 440. CHAPTEE XLVI. COSTS. Section 1. General Rules. 2. Apportionment and Set-Off. 3. Costs out of the Fund. 4. Principles of Taxation. 5. Who May Tax Costs. 6. Notice of Taxation. 7. Bill of Costs. 8. Retaxaiion. 9. Payment How Enforced. SECTION I. GENERAL RULES. It is the general doctrine of courts of equity that costs are entirely in their discretion, to be awarded or withheld, accord- ing to the justice of each particular case. That is, they are not like courts of law, held inflexibly to the rule of giving costs of the suit to the successful party. The discretion is a sound discretion, based upon certain fixed principles. ' Where parties are eqiially innocent, and are seeking to avoid a loss caused by a third person, no costs will be awarded to either party as against the other. ^ But inasmuch as costs do not necessarily follow the decree, costs must be expressly ordered or they will be lost.^ 1 2 Comp. L. 1871, § 7386; 2 Dan. Ch. Pr. 1376-7; Comstockv. Comstock, 24 Mich. 3!) ; Van Wert v. Chidester, 31 Id. 209. 2 Pendleton v. Eaton, 3 Johns. Ch. 69 ; Summers v. Bromly, 28 Mich. 129. » 2 nan. Ch. Pr. 1376, note 6; Travis v. Waters, 1 Johns. Ch. 85; Slone v. liocke, 48 Maine, 425. 652 COSTS. 563 The Court will not order the payment of the costs of a cause without taxation. But upon interlocutory applications, it may by order direct payment of a sum in gross, in lieu of taxed costs.* It is a general rule of equity that where the party dies before decree, the right to costs, up to that time, dies with him. But if they have been decreed, and the party dies before taxa- tion, they may be recovered by his personal representatives on a bill of revivor. 5 It is also a general rule that the successful party, although he may for special reasons be deprived of his costs, never pays costs to his adversary. 8 . When a party successfully opposes a motion and nothing is said about costs in the order denying the application, he is entitled to his costs as costs in the cause if he obtains a final decree for costs.'' Where a party is entitled to costs, he should apply for them at the hearing, or at any rate before the decree has been passed, as after that the Court will not give the costs of suit to a party even, though he were a mere trustee, and would have been entitled to them as matter of course if asked for at the hearing.* They do not therefore, always follow a decree in favor of a party praying relief.' But as a general principle the prevail- ing party is prima facie entitled to costs. ^^ The statute provides that if the complainant in chancery shall dismiss his bill or petition, or if the same shall be dismissed for want of prosecution, the defendant shall recover his costs, except in those cases where according to the practice of the * 2 Dan. Ch. Pr. Chap. 331, p. 1379, 4th Ed. ' Travis v. Waters, 12 Johns. 500 ; S. C. 1 Johns. Ch. 85. « 2 Dan. Ch. Pr. Ch. 31, p. 1378. ' Rogers v. Rogers, 2 Paige, 458 ; Wilkinson v. Henshaw, 4 Id. 257. • 2 Dan. Ch. Pr. 1410, note 1 ; Travis v. Watere, 1 Johns. Ch. 85. ' 2 Hofr. Ch. Pr. 72; 2 Dan.Ch. Pr. 81; Church v. Jaques, 1 Johns. Ch. 65; Nicoli v. Trustees, lb. 166; Garr v. Bright, 1 Barb. Ch. 157. " Garr v. Bright, supra ; 2 Hoff. Ch. Pr. 72. 70 554 COSTS. Court, costs would not be awarded against such complainant or petitioner upon a decree rendered on hearing the cause, i* In all other cases where no special provision is made by law, the costs of all suits and proceedings in chancery must be paid by such party as the Court shall direct.^ ^ "Where parties are improperly made defendants they are entitled to costs. ^^ "Where an order becomes necessary to affect the rights of infants, and where nothing is done by them but to present to the Court the facts on which their rights depend, costs will not be imposed. 1* Costs will not be awarded against a mere nominal party, i' "Where a party is compelled to come into court by the improper conduct of the defendant, and without fault of his own, he is entitled to costs. ^^ "Where a subsequent purchaser is made a party to a fore- closure bill and contests the amount due, a decree for costs may be rendered against him if the mortgaged premises prove insufficient." The introduction of scandalous matter will be punished by withholding costs from the defendant, although prevailing in the suit.i^ Costs will not be allowed on reversal when the transaction out of which the claim grew was iniquitous. ^ ^ [For costs in Supreme Court, see p. 234.] 1 1 2 Comp. L. 1871, 7385 ; Hammersly v. Barker, 2 Paige, 372; Daniels V. Eisenlord, 10 Mich. 454; Meth. Ch. v. Clark, 41 Id. 731. "2 Comp. L. 1871, ? 7386 ; Brockway v. Copp, 2 Paige, 579 ; Matter of Hemiup, 3 Id. 311. IS Gregory V. Stanton, 12 Mic'i. 62; Ramsdell v. Eaton, lb. 117. Avery v. Payne, lb, 540 ; Stickney v. Parmenter, 35 Id. 237. 1* Smith V. Smith, 13 Mich. 259. " Teedv. Marvin, 41 Mich. 216. > * Ward V. Jewett, Walk. Ch. 45. 1' Ireland v. Woolman, 15 Mich, 253. ' « Mayhew v. Phoenix Ins. Co. 23 Mich. 105. ' ' Williams v. Guarde, 34 Mich. 82. As to liability for costs on appeal bond, see Prosser v. V^Thitney, 46 Mich. COSTS. 655 SECTION II. APPOETIONMENT AND SET-OFF. Apportionment. — The Court in deciding the question of costs will frequently apportion them so as to cause the costs of one part of the suit to fall upon one party, and those relating to another part to fall upon the other party. Thu^ where a com- plainant claims several matters by his bill, and succeeds in establishing his right to a portion only of what he so claims, the Court will sometimes grant him a decree for the part in which he is successful, with costs to be paid by the defend- ant, and will dismiss the remainder of his bill with costs to himself. 2 So also when there are several issues, and some are found for the complainant, and others for the defendant, the parties will be allowed costs on issues found in their favor, and must pay them on those found against them.^^ Sometimes where a decree is made upon the whole bill, the Court will order the costs up to a certain period to be borne by one.party, and the remainder by another. Thus in suits for specific performance, where a vendor fails to make out his title until after the bill is filed, he will be lia- ble to pay the costs of the suit up to the time when he showed a valid title. 2 2 In matters of account also the Court wiU frequently appor- tion the costs between the parties according as the evidence " 2 Dan. Ch. Pr. 1407; 1 Seaton on Decrees, 94,96 ; 2 Barb. Ch. Pr. 325; Piatt V. Squire, 5 Cush. 551 ; McConneU v. McConnell, 11 Vt. 290. " 2Dan. Ch. Pr. 1407. " 2 Dan. Ch. Pr. 1407, 4th Ed.; 2 Barb. Ch. Pr. 326; Sutphen v. Fowler, 9 Paige, 280; Robinson v. Cropsey, 2 Edw. Ch. 138. 556 COSTS. may show either of them in fault.^^ Also where a party files a bill to redeem, the general rule is that he must pay the costs to the mortgagee, although he should be successful. 2* When parties are both in fault, costs will be denied to either. 2 5 Chancery Eule 90 provides that where several defendants are entitled to costs, they must be apportioned amongst them as the Court may deem proper. [For numerous illustrations of the rule, see 2 Dan. Ch. Pr. Ch. 31, § 2, p. 1381 to 1409, 4th. Ed.] Set-off of Costs. — In the apportionment of costs between the parties, the Court will, on motion, generally arrange them so that they may be set-off, one against the other, and that the balance only shall be paid by the party from whom it shall appear to be due.' ^ The Court will also when there are sums of money to be paid, as well as costs, arrange the demands of each so as to do justice to all. 2'' Under an order that the bill be dismissed, complainant must pay the costs if he wishes to put an end to the suit, and he, cannot offset the defendant's costs against a judgment in his favor, without a special order to that effect, ^s The Court will not direct the costs of a suit in chancery, and of an action at law between the same parties to be set-off against each other.' ^ " 2Dan. Ch. Pr. 1408. •* Vroom V. Ditmas, 4 Paige, 527. »» Clark V. Reed, 11 Pick. 449. «6 2 Dan. Ch. Pr. 1408, 1409, 4th Ed.; Beames on Costs, p. 7: Taylor v. Popham, 15Ves. 62. " 2 Dan. Ch. Pr Supra; Battle v. Griffin, 5 Pick. 167. •» Simpson v. Brewster, 9 Paige, 245. »• 2Barb. Ch. Pr. 327. COSTS. 557 Set-off GeneraUy. — Generally equity follows the law as to set-off, but with limitations. Independently of the statutes of set-off, Courts of Equity, in virtue of their general juris- diction, are accustomed to grant relief in all cases where, although there are mutual and independent debts, yet there is a mutual credit between the parties, founded at the time upon the existence of some debts due by the crediting party to the other. By mutual credit, in the sense in which the terms are here used, we are to understand a knowledge on both sides of an existing debt due to one party, and a credit by the other party, founded on and trusting to such debt as a . means of discharging it.*" SECTION III. COSTS OXTT OF THE FUND. As a general rule wherever an estate or fund is adminis- tered by the Court, the costs of all necessary and proper par- ties to the proceedings are a first charge, and must be defrayed thereout, before the claims of the persons beneficially entitled thereto are satisfied.^ * But the costs only of those proceed- ings which were in their origin properly directed for the ben- efit of the estate, will be directed to be thus paid ; and the costs of any unnecessary and useless proceedings must be paid by the person at whose instigation they were taken.* ^ »» 2 Story's Eq. Jur., ? 1435, 10th ed., and note 4 ; Jones v. Disbrow, Harr. Ch. 102; McGraw V. Petlibone, 10 Mich. 530; Hale v. Holmes, 8 Mich. 87; Lockwood V. Beckwith, 6 Id. 168; D. & M. R. R. Co. v Griggs, 12 Id. 46; Hendricks v. Toole, 29 Id. 340 ; Hess v. Final, 32 Id. 518 ; And see cases col- lected in 7 Waite on Actions 478-9. •1 2 Dan. Ch. Pr. Chap. 31, p. 1411 ; 2 Perry on Trusts, § 894. " 2 Dan. Ch. Pr. 1411. 558 COSTS. Trustees, agents and receivers, accounting fairly and pay- ing their money into court, are entitled to their costs out of the estate as a matter of course, and the same rule extends to personal representatives, to whom, as they can only obtain complete exoneration by having their accounts passed in the court, the Court will give every opportunity of exonerating themselves, by passing their accounts at the expense of the estate, or from the cestui que trust personally.*" The rule is not confined to cases in which they are brought before the Court as defendants : it being a general principle that a trustee has a right to the protection of the Court in the execution of his trust. He is, therefore, entitled to his costs, whether he comes before the Court as complainant or defend- ant, unless the act required to be done leads to no responsibil- ity, or his motive is obviously vexatious.** A trustee fairly instituting a suit for the direction of the Court, with regard to the trust, will not only be entitled to his own costs, -but any person made a party to the suit for his protection will also be ordered his costs from the fund.*^ Administration of Estate. — Where a suit for the adminis- tration of an estate has been properly instituted, the costs of the complainant and all necessary parties are considered as expenses in administering the estate, and are the first charge upon it ; and if the estate is insufficient for the payment of all the costs, the executor's costs are the first charge; then the complainant's, and then those of the other parties.* « A guardian will be charged personally with costs when he files an unjustifiable bill.*^ s« 2 Dan. Ch. Pr., Chap. 31, p. 1411 ; 2 Perry on Trusts, 3 894 ; Decker v. Miller, 2 Paige, 149. ' < ■ 5* 2Dan. Ch. Pr. supra; 2 Hoff. Ch. Pr. 73; Goodrich v. Pendleton, 3 Johns. Ch. 520. «6 2 Dan. Ch. Pr., Ch. 31, p. 1412. = « Daniels V. Eisenlord, 10 Mich. 454; Campau v. Campau, 25 Id. 127; Van Wert v. Chidester, 31 Id. 207; 2 Dan. Ch.Pr. 1423; Mason v. Codwise, 6 lohns. Ch. 183 ; Tripping v. Power, 1 Hare 405, 411. » ' Sikes V. Crissman, 35 Mich. 96. COSTS. 559 When a person, standing in the situation of a trustee, occa- sions the suit by his neglect or misconduct, he will be deprived of his costs out of the estate ; or where, after having taken upon himself the trust, he refuses to act, and thereby renders a suit for the appointment of a new trustee necessary.' ^ It may be stated as a general rule that where misconduct, or a general dereliction of duty in a trustee, or even his mere caprice or obstinacy, is the immediate cause of a suit being instituted, he must pay the costs of the proceeding occas- ioned by such misconduct.^* So where he has occasioned the suit by neglecting to famish proper accounts when requested.* » Constructwn of WMs. — Where a will is so ambiguous in its terms as to render it proper for the executor to take the direc- tion of the Court as to the construction of its provisions, or where a difficulty arises upon the construction of the will, resulting in litigation, the costs of the necessary parties to the litigation is a proper charge upon the estate.*^ But not where the court below lacked jurisdiction.* ^ The above rule does not apply to oases where difficulties arise on the construction of deeds.** .BiZZs of Interpleader. — Where it becomes necessary to file a Bill of Interpleader, the complainant is entitled to be paid his costs out of the fund.** Under special circumstances both defendants and com- plainants will be allowed their costs out of the fund.* = »8 2 Hoff. Ch. Pr. 73; 2 Dan. Ch. Pr. 1416 ; O'Callaghan v. Cooper, 5 Ves. 129; England v. Downs, 6 Beav. 279 ; Knott v. Cottee, 16 Id. 77. " 2Dan. Ch. Pr. and note 1, p. 1417; 2 Perry on Trusts, H 900, 901; Gardner v. Gardner, 6 Paige, 455 ; Smith v. Bolden, 33 Beav. 262. *" Boynton v. Richardson, 31 Beav. 340. *i 2 Dan. Ch. Pr, 1426 ; Rogers v. Ross, 4 Johns. Ch. 608 ; King v. Strong, 9 Paige, 94. *^ Hogan v. Hogan, 44 Mich. 147. *» 2 Dan. Ch. Pr. 1426, note 5 ; 2 Barb. Ch. Pr. 332. " Bedell v. Hoffman, 2 Paige, 199. «= 2 Ploff. Ch. Pr. 84; Atkinson v. Manks, 1 Cow. 691. 560 COSTS. The costs are to be paid in the first instance by the party entitled to the fand, but finally by the party who is in the wrong in the adjustment of the controversy between the defend- ants.* « BiUs of Foreclosure. — Where a mortgagee files a bill to fore- close, and subsequent incumbrancers answer and disclaim as to him, they will be entitled to the costs of their answers out of the fund, even though as between themselves they contest the right to the surplus.*' Where junior incumbrancers are made parties to a fore- closure bill, and they are compelled to answer to protect their rights, they are entitled to their costs.** Guardian Ad Litem. — The guardian ad litem of an infant defendant can only be allowed his taxable costs against a fund belonging to other parties in the cause. But the Court will not allow anything beyond the taxable costs of the guardian to be charged upon the infant's fund, except in very special cases.* ' Where a suit is instituted by order of the Court, the costs of all parties will be paid out of the fund.^" Out of what Fund. — The general rule is that where any doubt or ambiguity arises under wills, with reference to any bequest or devise which renders an application to the Court necessary, the costs occasioned by such application are to be paid, not out of the property with respect to which the doubt arises, but out of the general assets not otherwise disposed of. 5' In other words, they are payable out of what is usually termed the residujary personal estate: although perhaps the *« Canfield v. Morgan, 1 Hopk. 224 ; Miller v. De Peyster, 4 Buer, 203. «' Catlin V. Harned, 3 Johns. Ch. 61 ; 2 Perry on Trusts, ? 892. 4 8 2 Hoff. Ch. Pr. 76; M. Ins. Co. v. Marvin, 1 Paige, 557; and see Mil- landon v. Brugiere, 11 Paige, 163. *' U. Ins. Co. V. Van Rensselaer, 4 Paige, 85; 2 Barb. Ch. Pr. 335. "I Ashe V. Berry, 1 Beat. 255. »» 2 Dan. Ch. Pr. 1427, note 6 ; 2 Perry on Trusts. 9033 ; Smith v. Smith, 4 Paige, 271 ; King v. Strong, 9 Id. 94; Irving v. DeKay, lb. 521 ; Bowditch V. Soltyk, 99 Mass. 136, 141. COSTS. 561 term may not be quite correct, inasmuch as the residuary estate is, strictly speaking, that part of the estate which remains after payment of all legal and testamentary claims upon the estate, whether for debts, legacies or costs; and this rule applies, although the testator charges his debts, funeral and testamentary expenses upon a specific fund.^^ In the application of the rule that the costs of suit are pay- able out of the general residue, no distinction exists between the cases in which it is disposed of and those in which it is not. And where there are specific bequests and pecuniary legacies, which exhaust the whole estate, so that there is no residue, the costs occasioned by the specific bequests wUl be thrown upon the general fund, out of which the pecuniary legacies are payable.'* The rule wiU also prevail where property intended to be disposed of has in the result been declared undisposed of; there the costs will not be thrown upon the property so declared to be undisposed of, but, as in other cases, upon the general estate.** SECTION IV. PEINCIPLES OF TAXATION. Courts of Chancery make a distinction with regard to the principle upon which the oflcer of the court is to proceed in the taxation of costs. The distinction is marked by the terms of " costs as between party and party, and costs as between solicitor and client," the Court in the latter case permitting a " 2 Dan. Ch. Pr. 1428, notes 1, 2. »» 2 Dan. Ch. Pr. 1429; Cookson v. Bingham, 17 Beav. 262, 266. •* 2 Dan. Ch. Pr. lb, 71 562 COSTS. larger proportion of actual expenditure to parties holding particular characters than it allows in the former case.'^ No definite rules can be laid down with respect to the dif- ference between the costs allowed upon one principle of taxa- tion and those allowed upon the other. In general, however, in taxations as between party and party, only those charges will be allowed which are strictly necessary for the purposes of the prosecution of the litigation, or are contained in the tables of fees annexed to the general orders and regulations of the court ; while in taxations as between solicitor and client, the party will be allowed as many of the charges which he would have been compelled to pay his own solicitor, as being costs of suit, as fair justice to the other party will permit.®^ As Between Party and Party. — The general rule of the Court is that all costs are to be taxed as between party and party, except where they are specially directed to be taxed, as between solicitor and client; whence it follows that, where the direction is simply to tax the costs of the suit, it is always con- strued to mean as between party and party. ^^ As Between Solicitor and Client. — It is the general rule that when personal representatives and other trustees, are entitled to costs out of the fund, such costs will be directed to be taxed as between solicitor and~ client. It is, however, in general, only in cases in which there is a fund under the control of the Court that such a direction will be given ; where there is no such fund, or a bill against the trustee is dismissed, the costs awarded to the trustee will be only the ordinary costs. ^* In taxing costs therefore, as between solicitor and client, two distinct principles are adopted ; one where the costs are to be paid out of a general fund, the other where they are to be paid out of the fund of the party himself. This distinction, how- 6 5 2 Dan. Ch. Pr. 1434. s « 2 Dan. Ch. Pr. 1434 ; Forster v. Davies, 32 Beav. 624 ; Fro^t v. Belmont, 6 Allen 164. 6' 2 Dan. Ch. Pr. 1410, 1435 ; Seaton on Decrees, 59, marg. p. " 2 Dan. Ch. Pr. 1435, note 3. CXDSTS. 563 ever, is never made in the order directing tlie taxation, but only when the order is acted upon. And if it is intended the party whose costs are to be paid out of the general fund, should be fully indemnified against all expenses, care must be taken to have it so expressed in the order, as it will not be sufficient that the costs are directed to be taxed as between solicitor and client.^' Where costs are payable out of a fund in Court, they are ordered to be paid to the solicitor of the party; but in other cases they are always ordered to be paid to the parties themselves. * " , Principles of Taxation to be Adhered to. — Where the Court has once adopted the principle of taxation as between solici- tor and client in favor of a particular individual or of a partic- ular class, it will in its future proceedings, wherever it becomes necessary to direct a further taxation of costs, direct it to be made upon the footing of the former taxation. It is only, how- ever, where the former direction for taxation has been made at a hearing of the cause, either original, or upon farther consid- eration, that the Court will consider itseK bound by it at the subsequent hearing, ^i The taxation of costs is a ministerial act, and similar in its nature to the action of auditing officers. It may therefore be made by the clerk and cannot be reviewed on error. An appellate court can only review the proceedings of the Circuit Court as a court, and that court does not act upon costs unless on some motion or application to correct the taxation already made by its ministerial officers, and a writ of error would not be the proper remedy, if any lies to review such corrective action.^ 2 " 2 Barb. Ch. Pr. 338; 2 Smith's Ch. Pr. 637. «» 2 Dan. Ch. Pr. 1410. " 2 Dan. Ch. Pr. 1435. »» Abbott V, Mathews, 26 Mich. 176 ; People v. Jackson Co. 31 Id. 116 ; Lonnan v. Phoenix Ins. Co., 33 Id. 65. In froceeding to remove a cloud when defendant disclaims, but sets an inde- pendent title, costs are not discretionary, Ellison v. Kettridge, 45 Mich. 475. 564 COSTS. It is the termination of the suit which entitles one party to costs against the other, and the law then in existence is the rule by which they are to be ascertained. A different rule prevails between attorney and client.** Appeal. — ^An appeal lies from an appeal from a decree for costs.** SECTION V. "WHO MAT TAX. The statute and rule provide that costs in the several Circuit an4 the municipal 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.*' Before any party shall be entitled to demand payment thereof, such costs must be taxed by a taxing ofOlcer of the court. But no officer can tax his own costs or fees.* * SECTION VI. NOTICE OP TAXATION. Where a party has appeared in a cause, he is entitled to the same notice for taxation as is provided by Eule 51 of the Supreme Court, viz : Not less than two nor more than ten «« Sawyer v. Studley, Walk. Ch. 153; Dean v. Gridley, 11 Wend. 167; Taylor v. Gardner, 4 How. Pr. 67. «* McCabe v. Farnsworth, 27 Mich. 52. " Ch. Rule 89 ; 2 Comp. L. 1871, | 7420, as amended by Laws of 1879, p. 44. «« Ch. Rule 90. COSTS 565 days, according to distance. ^^ A taxation of costs without such notice, is irregular and may be set aside.** SECTION VII, BILL OF COSTS. The complainants, in a suit in equity, however numerous, can have but one bill of costs, and the same rule applies to defendants however numerous, appearing by the same solicitor. But if the defendants are entitled to sever in their defense, he may charge for separate answers.'^ Items. — ^It is provided by rule that the bill of costs offered for taxation, the items of disbursements, and of the fees of offi- cers of court, must be specified therein and not charged in gross. And also that when witness fees are charged, the names of the witnesses and the number of days travel and attendance must be specifically set forth.'"* Affidamt. — ^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 belief, that the disbursements charged have been actually and necessarily incurred or paid.''" «' 2 Comp. L. 1871, § 7420, as amended by Laws of 1879, p. 44 ; Sup. Ct. Rule 51; Ch. Rules 90 and 61. «s Hoffman v. Skinner, 5 Paige, 526. «9 2 Dan. Ch. Pr. p. 1448 ; 2 Smith's Ch. Pr. 643 ; Clark v. Reed, 11 Pick. 446 ; Pratt v. Bacon, lb. 495 ; Houghton v. Barney, 2 Ired. Ch. 393 ; Wendell V. Lewis, 8 Paige. 613 ; Walker v. Russell, 16 How. Pr. 91. '" Ch. Rule 90. Under this rule the claim for Registei' s fees in the Circuit Court must be itemized, see Dickinson v. .Seaver, 44 Mich. 625 ; and see Laws of 1879, p. 25. Sheriff's Fees, see Laws of 1881, p. 103. Commissioner's Fees, see Cict. Ct. Rule 118. Clerl/s new Fee Bill, see Laws of 1879, vol. 2, local Act Nc^. 381, as amended by Laws of 1881. Local Act No. 428, p. 392. 566 COSM. If the adverse party objects to the allowance of any of the items charged, he must produce affidavits or other evidence in opposition thereto, or he will not be allowed to use such affi- davits before the Court on motion for retaxation^i In taxing costs for printing, the clerk should limit the allowance to the customary rate for such work, unless satis- fied that more has in good faith been paid, or a greater liability incurred. Counsel have a right to have the printing done where it will be convenient to look after the proofs.'' ^ The statute provides that when there shall be charges in a bill of costs for the attendance of any witness, or for copies or exemplifications of documents or papers, or for any other dis- bursements, except to officers for services rendered, such charges for witnesess shall not be taxed without an affidavit stat- ing the distance they respectively traveled, and the days they actually attended ■; and such charges for copies shaU not be taxed without an affidavit that such copies were actually and necessarily used, or necessarily obtained for use; nor shall such disbursements be allowed without an affidavit specifying the items thereof particularly, nor unless they appear to have been necessary and reasonable in amount.'* Where Party is Witness. — "When in any case a party is enti- tled to charge witness fees, and his bill of costs shall contain an item or items for the attendance and travel of the party himself as a witness, such item or items shall be taxed upon affidavit that the party was in attendance upon the court for the time charged for the purpose of being sworn as a witness, and not to assist in the management of the cause, and that the travel was for the purpose of giving his evidence.'* 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 or retained, there was a necessity for »i Wendell v. Lewis, 8 Paige, 613. ' * Dickinson v. Seaver, 44 Mich. 625. »» Lawsofl88l, p. 394; Maxwell v. Bridge Co, 42 Mich. 67; Dickinson V. Seaver, 44 Id. 624. When traveling expenses not to be included as costs, McDonald v. McDonald, 45 Mich. 44. COSTS. 567 their attendance and they were called no sooner, nor kept longer than the apparent necessity existed. Affidavits to jus- tify the taxation for their attendance must clearly show their materiality and necessity.'* Where a, party attends and testifies in his own behalf as a witness, he cannot have witness fees.'' But when made a witness by his adversary, he is entitled to fees.'^ The following costs are allowed by rule to the prevailing parties, viz. : In all cases determined by final decree or plead- ings and proofs, $30. On bill and answer, plea or demurrer, $20. When decree is taken on bill taken as confessed, $15. Upon all special motions a sum not exceeding $10, as the Court shall deem just. When a bill is dismissed for default at the hearing, or for want of prosecution, or voluntarily by the complainant, the defendant shall be entitled to the same costs as if the cause had been heard. When the bill is dismissed upon payment of the claim by the defendant, or performance of the relief sought before decree, the complainant shall be entitled to the same costs as if the case had been heard. If such payment or performance is made before plea, demurrer, or answer, the costs will be as on bill taken pro confesso. K after any pleading is put in and before proofs, they will be as on a hearing upon pleadings. But if made after proofs are taken, the costs will be as on a hearing upon pleadings and proofe. Divorce Oases. — ^In divorce cases the costs are under the direction of the Court." 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.'* '* Gilbert v. Kennedy, 22 Mich. 5; Duncombe v. Richards, 47 Id, [Jan'y Term 1882.] '5 Steere v. Miller, 30 How. Pr. 7 '« Hewlett V. Brown, 1 Bosw. 655. " Ch. Rule 90. See N. V. Trust Co. v. Davis, 10 Paige, 507 ; Davis v. Hawley, 11 Id. 434. "' Holbrook v. Winsor, 25 Mich. 211 ; Chapaton v. Butler, 18 Id. 337. 568 CXJSTS. Service of. — A copy of tlie bill 9f costs must be served upon tbe adverse party at the time of giving notice of the taxation. When the bill of costs has been taxed, it mu:st, with the original af&davit, be filed with the Begister. This filing is a substitute for a commissioner's report.'^ Duty of Taxing Officer. — Every oflScer 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 satisfied that the items charged in such bill are cor- rect and legal ; and shall strike out all charges for services which, in his judgment were not necessary to be performed.*' SECTION VIII. - EE-TAXATIOTiT — ^PEACTIOE. Where a party desires a retaxation of costs, he must bring the question before the Court by petition or motion, specifying the items objected to as erroneously allowed by the taxing officer. II there was irregularity in the taxation, as a want of notice, he must make a motion to have the taxation set aside on that account. '1 Where a party defendant has been guilty of gross negli- gence through delay, a retaxation of costs will not be granted. They are part of the decree. ^^ " Hoffman v. Skinner, 5 Paige, 526. 8» 2 Comp. L. 1871, g 7424. 81 Reeves v. Scully Walk, Ch. 340. «' Hart V. Linsday, Walk. Ch. 72 ; Morris v. Mullett, 1 Johns. Ch. 44. COSTS. 669 "Where a party neglects to appear on taxation of costs after notice, and fails to show any excuse for such non-appear- ance, the Court will not grant htm relief by retaxation.** Unless the items in a biU of costs are objected to before the taxing officer, they will not be considered on retaxation.** On a motion for retaxation, the party applying therefor will not be allowed to use affidavits or other evidence in sup- port of hip objections to the bill which were not produced before the taxing officer, unless he shows a sufficient excuse for not producing the same on the taxation. '^ If the party applying for retaxation succeeds only as to part of the items objected to, neither party will be allowed the costs of the retaxation.' ^ Eetaxation of costs cannot be urged on a motion for a modification of a decree, (a) I8ee Costs and Taxation in Supreme Court, p. 234.] SECTION IX. PAYMENT HOW ENFOECED. Interlocutory Costs. — The statute directs that when any rule or order of the Court shall have been made for the payment of costs, or any other sum of money, and proof by affidavit shall be made of the personal demand of such sum of money, and of a refusal to pay it, the Court may order a precept to commit " Taylor v. Boardman, 16 Mich. 506. »* Cuyler v. Coats, 10 How. Pr. 141. " Wendell v. Lewis, 8 Paige, 613; 2 Barb. Ch. Pr. 343. '• Lloyd V. Brewster, 5 Paige, 87. (o) Kraft V. Raths, 45 Mich. 20. 570 COSTS. the person so disobeying to prison, until such sum, and the costs and expenses of the proceeding, shall be paid.*' "When a party is ordered to pay the costs of any interlo- cutory proceedings, and no time of payment is specified in the order, he must pay them within twenty days after the fil- ing of the taxed bill and affidavit, and service of a copy of the order and of such taxed bill; or if a gross sum is specified in the order, within twenty days of service of a certified copy of the order.*' If he neglects or refuses to pay such costs within the time prescribed as aforesaid, or specified in the order, the adverse party, on an af&davit 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 attachment against the delinquent.** To authorize the issuing of a writ of attachment under the foregoing rule, a personal demand of the costs upon the party himself is necessary. A demand of his solicitor is not suffi- cient.*' Imprisonment for debt being forbidden, a party cannot be imprisoned for non-compliance with such an order except on the ground of. contempt of the authority of the Court. There must be in the case something of wrong beyond the mere failure to pay money, and the party, before he can be convicted and punished, must have an opportunity to he heard in his own exculpation, (a) It would seem that attachment is the only process which can be issued for the collection of interlocutory costs, but for the provisions of Chancery Eule 100.9 • »■> 2 Comp. L. 1871, 2 5692 ; also see § 5689, subd. 3. »8 Ch. Rule 100. '» Lorton v. Seaman, 9 Paige, 609. (a) Steller v. Steller, 25 Mich. 159 ; Brown v. Brown, 22 Id. 299 ; Haines V. Haines, 35 Id. 144. • Van Ness v. Cantine, 4 Paige, 57. COSTS. 671 Costs Upon Final Decree. — The Court may enforce perform- ance of any decree, or obedience thereto, by execution against the body of the party against whom such decree shall have been made, or by execution against the goods and chattels, and in default thereof, the lands and tenements of such party ; but no execution shall be issued on any final decree, until the same shall have been enrolled, as hereinbefore provided.' * [(See " Contempts," Sec. 2, ante p. 536.] " 2Coiilp. L. 1871, 2 5099. CHAPTEE XLVII. BILL FOE DITOECB. Section 1. Nature of. 2. When Marriage Void Without Decree. 3. When Decree Nece.ssary to Annul or Affirm. i. Causes of Divorce. 5. Jurisdiction of and Where Commenced. 6. Adultery. 7. Impotency. 8. Conviction of Crime. 9. Desertion. 10. Habitual Drunkenness. 11. Divorce Granted in Another State. 12. Extreme Cruelty. 13. Parties. 14. Frame of Bill. 15. Injunction. 16. Defenses, 17. Hearing and Decree. SECTION I. NATURE OF. Divorce is the dissolution or partial suspension by law of tlie marriage relation between a man and a woman by compe- tent judicial authority, or by an Act of the Legislature.^ Divorces are of two kinds, Absolute and Limited. The first is a complete and final severance of the marriage tie, and ' 2 Bishop on M. & Div., J J 224, 226. 572 BILL FOE DrVOEOE. 573 is called a vinculo matrimonU. The second is a limited separa- tion, called a mensa et thoro. The former was never granted by the ecclesiastical law except for the most grave reasons.^ In some of the States divorces a vinculo are granted by the State Legislatures when not forbidden by constitutional enact- ment. They are forbidden in this State.* In Michigan, so far as its legal validity is concerned, mar- riage is a civil contract, to which the consent of parties capable in law of contracting is essential.* Males of eighteen and females of sixteen years of age are capable in law of contract- ing marriage if otherwise competent.* SECTION II. WHEN VOID "WITHOUT DEC3EEE. All marriages which are prohibited by law on account of consanguinity or af&nity between the parties, or on account of either of them having a former wife or husband then liAdng ; 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 where a bill is filed by a lunatic, after his restoration to reason, if it appear that the parties freely cohabited as hus- 2 Coke on Litt. 235 a. » Teft V. Teft, 3 Mich. 67, Const. Art. IV, g 26. 1 Bishop on M. & D., g? 657, 695. * 2 Comp. L. 1871, ? 4720. " 2 Comp. L. 1871, g 4719. « 2 Comp. L. 1871, § 4733. 574 BITX FOE DIVOECE. baud and wife after the lunatic was restored in mind, no divorce will be granted.'' In case of a marriage solemnized when either of the parties was under the age of legal consent, if they shall separate dur- ing such non-age and not cohabit together afterwards, or in case the consent of one of the parties was obtained by force or fraud, and there shall have been no subsequent voluntary cohabitation of the parties, the, marriage will be deemed void, without any decree of divorce or other legal process.* But if it appear that such parties voluntarily cohabited as husband and wife, after the alleged force or fraud, such marriage will not be annulled.^ 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 wiU restore such party to his or her con- jugal rights.^ * SECTION III. "WHEN DECEEE TO ANITOL. When a marriage is supposed to be void, or the validity thereof is doubted, for any of the causes mentioned in the pre- ceding sections, either party, excepting in cases where a con- trary provision is hereinafter made, may file a petition or bill in the Circuit Court of the county where the parties, or one of » 2 Comp. L. 1871, § 4768. • 2 Comp. L. 1871, R 4734, 4766. » 2 Comp. L. 1871, ? 4769 | People v. Slack, 15 Mich. 193. J» 2Corop.L. 1871, ? 4737. BILL FOE DITOEOE. 575 them reside, or in the Court of Chancery, for annulling the same. On filing such petition or bill the proceedings thereon will be the same as in the case of a petition or bUl filed in said court for a divorce ; and upon due proof of the nullity of the marriage, it will be declared void by a decree or sentence of nullity. 11 Suit to Affirm Marriage idhen Necessary. — "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 man- ner aforesaid for af&rming 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 on appeal, will be conclusive upon all persons concerned. ^^ SECTION IV. CAUSES OF DIVOECB. The statute! ' provides that divorces may be granted in the following cases : 1. Whenever adultery has been committed by any husband or wife. 2. When one of the parties was physically incompetent at the time of the marriage. 3. When one of the parties has been sentenced to imprison- ment in any prison, jail, or house of correction, for three years or more. No pardon granted to the party so sentenced, after a divorce for that cause, shall restore such party to his or her conjugal rights. i» 2 Comp. L. 1871, § 4735 ; 1 Edw. 46. " 2 Comp. L. 1871, ?4736. " 2 Comp. L. 1871, § 4738. 576 BILL FOB DIVOEOE. 4. When either party shall desert the other for a term of two years. 5. When the husband or wife shall have become an habitual drunkard. 6. The Circuit Courts may, in their discretion, upon applica- tion, as in other 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. 7. When either party is guilty of extreme cruelty towards the other. SECTION V. JUEISDICTION OF AlfD "HTHBEE COMMENCED. The statute provides that the circuit courts of the county where the parties, or one of them reside, shall have power to make decrees of divorce on application by biU or petition in all cases allowed by the Act.^* It also provides that no divorce shall be granted unless the party exhibiting the petition or bill of complaint therefor shall have resided in this State one year immediately preceding the time of exhibiting such petition or bill ; or unless the mar- riage was solemnized in this State and the complainant shall have resided in this State from the time of such marriage to the time of exhibiting the petition or bill.^ ^ The courts of this State have no jurisdiction to decree a divorce between parties who do not reside therein, but have a permanent domicil in another State. The subject matter of a divorce suit is the bond of matri- mony existing between the parties ; and if the parties have no domicil in the State, a divorce which its courts assume to »* 2 Comp. L. 1871, ?§ 4738 and 5058, as amended by Lawsof 1873, p. 31. 1" 2 Comp. L. 1871, §4741. BIIX FOK DITOBCE. 577 grant, whether deceived or not as to the fact of residence, is absolutely nugatory. ^^ Where the parties reside in different States, either State has authority, in respect to the marriage relation, to determine upon its validity or to dissolve it, so far as the party resident within its limits is concerned; and if one proceeds in one State, such proceeding is no legal impediment to the other's taking like steps in the other State, where it is necessary to the protection of any property or other rights.' '' The recitals in the record of a divorce case, that the parties are residents of the State where the suit was instituted, do n.ot preclude the showing in another State where the divorce comes collaterally in question, that the parties never resided in said first mentioned State, and that the suit was fraudulent and collusive.^* SECTION VI. ADULTERY. The statute provides that a divorce may be granted when- ever adultery has been committed by any husband or wife.(a) The bill should specify the time, place where the offense ^ * People V. Dawell, 25 Mich. 247 ; As to Residence aud Domicil, see Con- rad V. Nail, 24 Id. 276 ; Harbaugh v. Cicott, 33 Id. 252 ; 2 Bishop on M. & D., p. 116 to 131; Matter of Rue High, 2 Doug. 515; Campbell v. White, 22 Mich. 178; Snyder v. People, 26 Id. 106 . " Wright V. Wright, 24 Mich. 180. " People V. Dawell, 25 Mich. 247 ; See able dissenting opinion of Catnpbell, y., and numerous cases cited. As to effect of an Order of Publication, on Juris- diction, see Pettiford v. Zoellner, 45 Mich. 358. (a) 2 Comp. L. 1871, § 4738. 73 578 BILL FOE DIVOECE. was committed, and the name of parties, if known, that the ad- verse party may be prepared to meet the charge. ^ ' The offense mast be voluntary, and not the result of force or fraud. Adultery is peculiarly a crime of darkness and secresy. Parties are rarely surprised in the commission of the offense. It must therefore, ordinarily, be established by circumstantial- evidence. But the testimony must convince the judicial mind that actual adultery was committed, since nothing short of the carnal act ^3^- » 2 Comp. L. 1871, ? 4738, subd. 4. 582 BILL FOE DIVOECE. intent in tlie mind of the defendant to desert the other party ; and thirdly, the continuity of the desertion during the legal period.^ ^ A separation with the consent or acquiescence of the par- ties does not constitute such a desertion as is required under the statute as a ground for divorce.*' The separation required to constitute the offense of deser- tion under the law respecting divorce, must be, and continue 'to be, for the period named, a voluntary breaking of matrimo- nial cohabitation by one party against the will of the other, and under circumstances which the law does not consider suf- ficient to justify it.** Mutual treaties and deliberations within that period with a view to living together again are inconsistent with the kind of desertion contemplated by the statute.** SECTION X. HABITUAL DETJNKENNESS. The statute provides that a divorce may be granted when either party shall have become an habitual drunkard.*" This language clearly contemplates that the habit must have been contracted subsequent to the marriage. Our Supreme Court have so decided, but adding, " unless perhaps »« 2 Bishop on M. & D., ? 671 ; 1 lb., Ch. xliv. " Cox V. Cox, 35 Mich. 461. «8 Porritt V. Porritt, 18 Mich. 420. " Rudd V. Rudd, 33 Mich. 102 ; Cooper v. Cooper, 17 Id. 205 ; Holmes V. Holmes, 44 Id. 555. " 2 Comp. L. 1871, ? 4738, subd. 5. ^ BILL FOE DIVOECE. 583 when such habit was concealed from the complainant's knowl- edge until after the marriage." * ^ What amounts to habitual drunkenness is a question of law ; therefore, on the hearing, it is not sufiScient for the wit- nesses to testify in general terms that the defendant is an habitual drunkard, but they should state particular facts and circumstances, leaving the Court to judge of their suffi- ciency.*^ Our Supreme Court has decided that one who has the habit of indulging in intoxicating liquors so firmly fixed that he becomes intoxicated as often as the temptation is presented by his being in the vicinity where liquors are sold, is an habitual drunkard within the meaning of the divorce law.*^ It has been held that the immoderate use of opium or chlo- roform, though it may operate substantially the same as alcoholic liquors, is not intemperance within the meaning of the statute.** SECTION XI. WHEN DIVOECE GEANTED IN AJfOTHEE STATE. The statute authorizes the Circuit Courts, in their discre- tion, upon application, as in other cases, to 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.* = *^ Porritt V. Porritt, 16 Mich. 140. And see Mr. Bishop's Observations on this CaSe, 2nd vol. on Marriage and Div,, \ 813 a. «= 2 Bishop on M. & D., ? 813 ; Batchelder v. Batchelder, 14 N. H. 380 ; Mahone v. Mahone, 19 Cal. 626, 628. 43 Magahay v. Magahay, 35 Mich. 210. ** Barber v. Barber, 14 Law Reporter 375 ; Bishop Stat. Crimes, \ 972. «« 2 Comp.L. 1871, 1 4738, subd. 6. 584 BILL FOE DIVOECE. This statute was intended to authorize the Court to give any proper relief when it was important to the protection of property or other rights, without regard to which party took the first step.** SECTION XII. EXTEEME CETJELTY. Cruelty is such conduct in one of the married parties as endangers, either apparently or in fact, the physical safety or health of the other to a degree rendering it physically or men- tally impracticable for the endangered party to discharge prop- erly the duties imposed by the marriage.*'^ Our statute provides that a divorce from bed and board, for- ever, or for a limited time, may be decreed on the ground 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 ; also on the complaint of the wife when the husband, being of suf&cient ability to provide a suitable maintenance for her, shall grossly or wantonly and. cruelly refuse or neglect to do so.** The statute also adds that the Court may grant a decree of divorce from the bond of matrimony for either of the causes mentioned in Section 4739, whenever, in its opinion, from the circumstances of the case, it will be discreet and proper to do so.* 9 4« Wright V. Wright, 24 Mich. 180. *' Evans v. Evans, Hag. Con. 35, 4 Eng. Ec. 310, 312; Perry v. Perry, 2 Paige 501 ; Odom v. Odom, 36 Ga. 286, 317. And see Mr. Bishofs Exhaus- tive and Philosophical Treatment of this subject; 1 Bishop on M. & D., Chap, xliii, U 717, 725-734. <8 2Comp. L. 1871, H739. 4» 2 Comp. L. 1871, ? 4740. BILL For divoece. 585 While all jurisdiction to grant divorces in this country is statutory, yet the legal import of the different language found in the statutes in the different States is substantially the same. The statutes of Texas, Louisiana and Arkansas are perhaps in more comprehensive terms than in those of other States.'" Though in cases of cruelty the complaint usually comes from the wife, as the weaker party, yet in most of the States in the Union, the divorce may be granted equally on the prayer of the husband for the wife's cruelty.^ * On general principles, besides the particular allegations of specific facts, there should be a general allegation concerning the habit and demeanor of the party complained against in his matrimonial relations with the complainant. As it is impor- tant that this should be shown by evidence, there must be a proper averment.'^ While the specific acts on which the charge rests must be set out in the bill, yet the evidence is not necessarily limited to the particular facts charged. Evidence of other facts which serve to give character to the specified facts proved, is admis- sable.^* A decree of divorce cannot be sustained on the ground of extreme cruelty, upon evidence as to an act of personal vio- lence not set up in the bill, where it appears that such act, if it occurred at all, was committed some months after the bill was filed. 5* Where husband and wife have parted and agreed on a per- manent separation, a wife, who has been induced by the urgency of her husband to return to him, will be justified in leaving him again if there is no improvement in their domes- tic affairs, although his misconduct may not be such as would ISO 1 Bishop on M. & D., § 718 ; Toume v. Tourne, 9 La. 452, 456; Rose V. Rose, 4 Eng. (Ark.) 507 ; Sheffield v. Sheffield, 3 Texas 79. " Lynch v. Lynch, 33 Md. 328; Kempf v. Kempf, 34 Mo. 211 ; 1 Bishop onM. & D. § 761. " Whispell V. Whispell 4 Barb. 217 ; 2 Bishop on M. & D. g§ 651-657 ; Harrison v. Harrison, 7 Ire. (N. C.) 484 ; Byrne v. Byrne, 3 Tex. 336. " Briggs V. Briggs, 20 Mich. 34. •* Bennett V. Bennett, 24 Mich. 482. 74 586 BILL FOE DIVOEOE. have afforded sufficient proof of cruelty to justify a divorce on that account. ^^ Courts cannot lawfully divorce parties merely because, from unruly tempers and mutual wrangling, they cannot live happily together. They are bound to submit to the ordinary consequences of human infirmity and unwise selection, and the misconduct which will authorize a divorce must be very serious, and such as amounts to extreme cruelty, entirely sub- verting the family relations by rendering the association intolerable. '^ Our statutes do not confine the definition of extreme cru- elty to physical violence, but the grievances, whether mental or physical, must be of the most aggravated nature, in order to justify a divorce. ^^ It is extreme cruelty to a wife for her husband openly to consort with, and express his preference for loose females.^" Or to communicate to her a venereal disease; but the fact that a wife whose chastity is unsuspected, is found to have a vene- real disease is not sufficient evidence that the disease was com- municated to her by her husband.'* Violence committed during a quarrel in which the husband suffers as much as the wife, is not such cruelty as will sustain a divorce against him.'' Where a wife sued for a divorce against her husband for adultery, as well as cruelty, and the record was chiefly made up of discreditable and malicious gossip, having no value as evidence, she was, on appeal from the decree dismissing her bill, which was affirmed, left to pay her own costs.'' 5s Cooper V. Cooper, 17 Mich. 205. 5 » Cooper V. Cooper, 17 Mich. 205 ; Lapp v. Lapp, 43 Id. 287 ; Bishop v. Bishop, 17i Id. 212 ; Soper v. Soper, 29 Id. 308 ; Canfield v. Canfield, 34 Id. 519 ; Cox V. Cox, 35 Id. 461 ; Holmes v. Holmes, 44 Id. 555 ; Palmer v. Palmer, 45 Id. 150 ; Brown v. Brown, 22 Id. 242 ; May v. May,,,62 Pa. 206 ; As to negkct of AouseAo/d avoirs, see Bennettv. Bennett, 24: Mich. 482; ShefSeld v. ShefiSeld, 3 Texas, 79; Nogees v. Nogees, 7 Id. 538. JVote. — As to husband having ability , and refusal to support, see 1 Bishop on M. & D.J? 817 to 823. »» McClung V. McCIung, 40 Mich. 493. 6» Holthoefer V. Holthoefer, 47 Mich. [Jan'y Term, 1882.] »• Soper V. Soper, 29 Mich. 305. BILL FOR DIVOECE. 587 Profane, obscene and insulting language habitually indulged towards a wife of sensitive nature and refined feelings, especially in the presence of her children, may amount to extreme cruelty ; but this, as a general rule, would be more readily recognized when used by the husband to the wife, than when by the wife to the husband.*" SECTION XIII. PAETIES. The petition or bill may be exhibited by a wife in her own name, as well as a husband.' ^ A bill to annul a marriage on the ground that one of the parties was under the legal age of consent, may be exhibited by the parent or guardian entitled to the custody of such minor, or by the next ixiend of such minor. But the party who was of the age of legal consent when the alleged marriage was entered into, cannot make such application. '^ A bill to annul a marriage on the ground of insanity, or idiocy, may also be exhibited by any person admitted by the Court to prosecute as the next friend of such idiot or lunatic* ^ After the restoration of his reason a lunatic may apply for a decree to dissolve a marriage between himself and another.** A suit to annul a marriage on the ground of the physical incapacity of one of the parties, can only be maintained by '" Bennett V. Bennett, 24 Mich. 482; Goodman v. Goodman, 26 Id. 417. Where cruelty is mutual no relief should be granted on bill or cross-bill. Hoffv. Hoff. [April Term, 1882.] 47 Mich. «i 2 Comp. L. 1871, J 4743; See 2 Bishop on M. & D. Chap. xvii. as to Parties. V 82 2 Comp. L. 1871, ? 4766. " 2 Comp. L. 1871, §4767. «« 2 Comp. L. 1871, 5 4768. 588 BILL FOR DlYOECfi. the injured party against the person whose incapacity is alleged. But the suit must be brought within two years from the date of the marriage.*^ In Michigan the only parties to a divorce suit are the hus- band and wife, and none but the parties can intervene in such a suit. When a bill to set aside a divorce was filed by infant children of the parties, appearing by another, a stranger to the record, as their next friend, it was dismissed on demurrer. No Court can compel discordant husbands and wives to live together, (as) SECTION XIV. FRATVTF. OF BILL. All bills for the purpose of obtaining divorce, whether the husband or wife is complainant, must be duly verified by o^th in the usual manner of verifying bills, where by the course and practice of the court, an oath is required. ^^ But the respondent in all cases may answer the biU without oath or affirmation.^'' The bill must also aver that the complainant has resided in the State one year immediately preceding the time of exhibit- ing the bill, or that the marriage was solemnized in this State, and that such complainant has resided therein from the time lOf such marriage to the time of exhibiting the bill.** « 2Comp. L. 1871, H771; (o) Baugh V. Baugh, 37 Mich. 59. •• Ch. Rule 95. •' 2 Comp. L. 1871, ? 4743. •• 2 Comp. L. 1871, i 4741. BILL FOB DIVOECE. 589 In cases of adultery, the complainant must also positively aver that the adultery charged in the bill was committed with- out the consent, connivance, privity or procurement of the complainant, and that the complainant has not voluntarily cohabited with the defendant since the discovery of such adul- tery/' The statute also provides that where the complaining party is guilty of the same crime or misconduct charged against the respondent, no decree shall be granted.'* In all bills for divorce, upon any ground, the complainant must also positively aver that the act done, or cause charged in the biU for which divorce is sought, was committed without the consent, connivance, privity or procurement of the com- plainant, 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 com- plainant or any other person.' i Amendments. — Amendments to divorce bills must be verified in the same manner as is prescribed for the verification of original bills.'* When a divorce bill is amended the whole bill as amended should be- re-swom to. It is not sufficient that the proposed amendments have been sworn to in the petition for leave to amend ; because our practice requires that the complainant in divorce cases shall deny collusion. But when the facts which are to be introduced by amendment are of a nature to nega- tive collusion, and the objection that the bill as amended is not sworn to, is first made in this court, it will be disre- garded.' ^ The student should be careful that the allegations in his bill should be sufficiently comprehensive and specific, so that any material evidence may be admissible.(a) (a) See Bills in CMnceiy, a»/;, p. 21, note 40, •» Ch. Rule 95. " 2 Comp. L. 1871, ? 4742. " Ch. Rule 95; 2 Comp. L. 1871, ? 4742. '2 Briggs V. Briggs, 2^1 Mich. 34 ; Green v. Green, 26 Id. 437. " Briggs V. Briggs, supra. 590 BILL FOK DIVOECB. Wiere different punishments or kinds of divorce are granted for cruelty and adultery, they cannot be joined.''* SECTION XV. INJUNCTION. After the exhibition of a biU or petition in a suit to annul a marriage, or for divorce or separation, the Goutt may either in term time or vacation, on petition of the wife, prohibit the husband from imposing any restraint on her personal liberty during the pendency of the suit.'' ^ SECTION XVI. DEFENSES. Defenses must be specially set forth in the answer. Eule 97 provides that the defendant in his answer may set up the adultery of the complainant, or any other matter which would be a bar to a divorce, separation, or the annulling of the mar- riage 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. In cases of adultery it is provided that in any suit brought for a divorce on the ground of adultery, although the fact of '4 Johnson v. Johnson, 6 Johns. Ch. 163; Smith v. Smith, 4 Paige, 93. '» 2 C(.mp. L. 1S71, I 4746. BILL FOE DIVOECE. 591 adultery be establislied, the Court may deny a divorce in the following cases : Mrst. When the offense shall appear to have been commit- ted by the procurement, or with the connivance of the com- plainant. Second. When the offense charged shall have been forgiven by the injured party, and such forgiveness be proved by express proof, or by the voluntary cohabitation of the parties with the knowledge of the offense. Third. When there shall have been no eospress forgiveness, and no voluntary cohabitation of the parties, but the suit shall not have been brought within five years after the dis- covery by the complainant of the offense charged.''* Trial of Issues. What confined to. — Issues awarded to be tried by jury must be confined not only to facts put in issue by the pleadings, but to facts concerning which some testimony has already been introduced and read at the hearing.'^ Condonation. — Condonation may be defined in general terms to be the conditional forgiveness or remission by the husband or wife of a matrimonial offense which the other has commit- ted.'* Such forgiveness may be expressed in language, or it may arise by implication out of facts done.'^ But cohabita- tion after probable knowledge of the offense is a presumptive remission of it. Suspicion merely is not sufBcient.*" When husband and wife have separate beds, but no sexual intercourse, condonation is not always to be inferred from their living in the same house together. But the general pre- sumption is that married people living in the same house do live on terms of matrimonial cohabitation.* * " 2 Comp. L. 1871, ? 4773. " Dunn V. Dunn, 11 Mich. 284. " Smith V. Smith, 4 Paige, 432 ; 2 Bishop on Divorce, Chap, iv, J 33. '» Quincy v. Quincy, 10 N. H. 272. '" Quincy v. Quincy, supra; Hofmire v. Hofinire, 7 Paige, 60. "1 2 Bishop on Div., Chap, iv, § 46. 592 BILL FOE DIVOECE. Condonation is not so easily inferred, and is not so strict a bar against tlie wife as against tlie husband. '^ In several of tlie States the presumption of condonation, arising from cohabitation, is inapplicable as against a wife to causes of cruelty, but it is against the weight of authority. ^^ While the condition remains unbroken, condonation, on whatever motive it proceeded, is an absolute bar to the rem- edy for the injury condoned.** Cross-Bill. — The practice of bringing a cross-bill by the defendant against the complainant to aid the defense, and likewise obtain affirmative relief, may be resorted to in divorce cases as well as in other suits.* ^ Where a husband files a bill for divorce, if his wife is a non-resident, she cannot file a cross-bill thereto for the purpose of obtaining a decree a vincvZo. Her residence in such suit becomes a jurisdictional fact.*^ SECTION XVII. HEARING AND DECEEB. Suits to annul or affirm a marriage or for a divorce, are conducted in the same manner as other suits in Courts of Equity, 8 7 and the court may award issues, decree costs, and enforce them as in other cases. T^ „r '^°?^,l-J^°^^A ^ P^'S^' ^^^ ; Armstrong v. Armstrong, 32 Miss. 279 ; Delhber v. Delliber, 9 Conn. 233. ' & s. 8 8 Perkins v. Perkins, 6 Mass. 69 ; HoUister v. HoUister, 6 Barr, 449 ; Burr I' ?.^"l l„ t'S^' ^° ' ^■■dner v. Gardner, 2 Gray 431, 441 ; 2 Bishop on M. & D., ^ 50 to 70. . «* Johnson v. Johnson, 4 Paige, 460; S. C. 1 Edw. Ch. 439. '» 2 Bishop on M. & D., g 318. ■<=.„" ^^V'^ ^1- ^••' 2§ 398, 399, 629; 2 Barb. Ch. Pr. 131; 2 Dan. Ch. Pr. 1549 note 3; Minnesota Co. v. St. Paul Co., 2 Wall. 633; Tobey v. Foreman, 79 111. 489 ; Lawe v. Hyde, 39 Wis. 351 ; Sterl v. Sterl, 2 Brad. (111.) 223 ; West Va. O. & O. L. Co. V. Vinal, 14 W. Virg. 637 ; And see G. R. N. & L. S. R. R. V. Gray, 38 Mich. 461. •» 2 Corap. L. 1871, J 4744. BILL FOE DITOECE. 593 If any such bill is taken as confessed, or the facts charged therein are admitted by the answer, the complainant may, upon due proof by affidavit of the regularity of the proceed- ings, to take the bill as confessed, or upon the bill and answer, have an order of course entered for a reference to a commis- sioner to take proof of all material facts charged in the bill, and to report such proof to the Court, with his opinion thereon. On such reference it shall be the duty of the commissioner in addition to any questions put by the parties, to make such full inquiries of the persons sworn as shall be necessary to arrive at all the material facts of the case.*' What Issues to be tried by Jury.— All issues upon the legality of a marriage, (except where a marriage is sought to be annulled on the ground of physical incapacity of one of the parties,) must be tried by a jury.' * Proof of Marriage. — In an application for a divorce, it is not necessary to prove that the parties were lawfully married ; proof of marriage is sufficient. In civil actions, reputation, cohabitation, acknowledgements of the parties, etc., are suffi- cient evidence of marriage.'" If a bill for divorce avers a marriage, which is confessed or not denied by the answer, it may be considered that an issue in this allegation is waived.' " Where there is nothing to hinder a party from taking his proofs within the time allowed by rules of practice, and from cross-examining the witnesses of his opponent, and he neglects to do so, he cannot get leave afterwards to bring in contradic- tory testimony without a strong showing that justice requires it; and that he has not been so far at fault as to have forfeited his claim to favor.' ^ " Ch. Rule 96; Emmons v. Emmons, Walk. Ch. 532; Pugsley v. Pugsley, 9 Paige, 589. 8» See Comp. L. 1871, § 5068. »» 2 Gmlf. Ev ?§ 461,462; 1 Bishop on M. & D., Chap. 26,? 497; Harman V. Harman, 16 111. 85. " McClung V. McClung, 40 Mich. 493; Thayer v. Swift, Walk. Ch. 384; Haner.5ly v. Lambert, 2 Johns. Ch. 432. 594 BILL FOE DIVOEOE. In all cases of divorce, whether at issue, or standing on the bill taken as confessed, the Court may call upon the complain- ant, or any witness thereto, to testify orally in open court; and may make all necessary orders to secure the attendance of such party or witness, and may suspend the hearing of the cause from time to time as often as may be necessary to secure such attendance. In case of the neglect or refusal of the complain- ant to attend and testify, the Court may dismiss the bill in the same manner as though said complainant had made default at the hearing.' 2 The right under this rule to call upon the parties in divorce suits to testify in open court is not cut off by Section 5969, of the Compiled Laws of 1871.'* Where evidence of the parties is taken without an order of Court, it will be disregarded.'* A decree entered within two weeks after the cause was put at issue, the record not showing that the cause was brought to a hearing by stipulation, or that the defendant was present at the hearing, or had notice thereof, was held to have been pre- maturely entered.'^ Where in a divorce suit an answer is filed and subsequently withdrawn, no divorce should be granted, without some satis- factory evidence showing that the withdrawal was voluntary, and at the same time not collusive.'^ Where in a sworn bill for divorce, the complainant specially averred that none of the acts alleged were done through con- nivance or collusion, and a decree was granted thereon, she will not afterwards be heard in a proceeding to vacate such decree on the ground that the divorce was the result of collus- ion. of »8 Ch. Rule 99. <" Hamilton V. Hamilton, Si Mich. 603. 9* Stuart V. Stuart, 47 Mich. [Jan'y Term, 1882.] 9 6 McKinney v. McKinney, 36 Mich. 37. »« Leavitt v. Leavitt, 13 Mich. 452. »' Simons V. Simons, 46 Mich. [Oct. Term, 1881.] BILL FOE BIVOKCE. 595 A decree of divorce may be afBrmed even though the evi- dence on which it was granted is so conflicting that different tribunals might reach opposite conclusions.' * The force of a final decree upon the merits, and upon plead- ings and proofs in a suit in equity, is not avoided by the appearance on the record of the cause, prior to the decree, of a voluntary dismissal of the bill by the complainant, entered without notice and without leave of the Courf Where a divorce was granted to the wife for the extreme cruelty of the husband, and there was nothing in the record to charge her with any fault in the separation, the portion of the decree awarding to the father the custody of a male child three years of age was reversed. ^ " " Fraitd. — To warrant annulling a marriage for fraud, there should be satisfactory evidence sustaining the charge, irrespec- tive of the declarations, confessions or admissions of the par- ties.!"! Those frauds which will invalidate a marriage are usually,, at least, such as negative any consent to be married, without reference to previous induceiuent. The common cases are duress, surprise or stratagem in procuring the marriage to be carried out ; and the fraud must usually be nearly, if not abso- lutely, co-incident in time with the marriage, and operate to destroy that intelligent consent which is required for the marriage itself, rather than the preliminary engagement.^ "^ Dower. — When the marriage is dissolved, by the hus- band being sentenced to imprisonment for life, and when a divorce shall be decreed for the cause of adultery committed by the husband, for the misconduct or habitual drunkenness oi the husband, or on account of his being sentenced to imprison- ment for a term of three years or more, the wife will be enti- »8 Corrie v. Corrie, 46 Mich. [June Term, 1881.] »» Newark V.Newark, 22 Mich. 292. 100 Klein v. Klein, [January Term, 1882,] 47 Mich, 101 Dawson v. Dawson, 18 Mich. 335. io» Leavitt v. I^avitt, 13 Mich. 452, 596 BILL FOE DIVORCE. tied to her dower in his lands in the same manner as if he were dead; but she will not be entitled to dower in any other case of divorce. 1"^ Decrees will not be made by consent ta divorce suits. The Court must be satisfied from the evidence that a legal cause exists.!"* No decree of nuUity declaring void a marriage contract, or decree for a divorce, or for a separate or limited divorce, shall be made of course by the default of the defendant ; or in con- sequence of any neglect to appear at the hearing of the cause, or by consent. Every such cause must be heard after the trial of the issue, or upon the coming in of the commissioner's report, at a stated term of the court. ^"^ No decree of divorce, or of the nullity of a marriage, will be made solely on the declarations, confessions or admissions of the parties ; but the Court must, in all cases, require other satisfactory evidence of the facts alleged in the bill for that purpose.^"® If or will it be made in any case when it shall appear that the petition or bill therefor was founded in, or exhibited by collusion between the parties, nor where the party complaining is found guilty of the same crime or misconduct charged against the respondent. ^ "'' Too much precaution cannot be exercised in requiriug the evidence of witnesses, independent of parties, before a decree of divorce will be granted.^** Where parties who are divorced for any cause whatever, cohabit together, they are guilty of adultery. i"' Custody of Children. — The Court may, on the application of either party, make such order concerning the care and custody i»» 2Comp.L. 1871, ?4756. lo* Robinson v. Robinson, 16 Micb. 79; Dawson v. Dawson, 18 Id. 335; Porritt V. Porritt, lb, 426 ; Bishop v. Bishop, 17 Id. 217. i»= Ch. Rule 98. ^«« 2 Comp. L. 1871, § 4772. i»' 2 Comp. L. 1871, ? 4742. lo' Emmons v. Emmons, Walk. Ch. 532, and note. , As to the effect and stability of Decrees, see % Bisjiop on M. & D. Xlhap.-xlii. lo* 2 Comp. L. 1871, §4765. BILL FOE DIVOECE. 597 of the minor cMldren of tlie parties, and their suitable main- tenance during the pendency of such suit as shall be deemed proper and necessary, and for the benefit of the children, ^i" Upon decreeing a divorce, whether from the bond of mat- rimony, or from bed and board, the Court may make such farther 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, m And the Court may, from time to time afterwards, on the petition of either of the parents, revise and alter such decree concerning the care, custody, and maintenance of the children, or any of them, and make a new decree concerning the same as the circumstances of the parents and the benefit of the chil- dren shall require.^ ^ ^ But it will not be made upon a petition which exhibits only such facts as were within the knowledge of the petitioners before the decree was entered, and which were as appropriate to be considered in making the decree, as for its modification. ^ ^ ^ Effect of Decree. Legitimacy of GhUdren. — As regards the effect of a decree of divorce upon the legitimacy of the issue, the statute provides as follows : Adultery iy Wife.— Where a decree of divorce is granted for the cause of adultery committed by the wife, it shall not affect the legitimacy of the issue of the marriage, but the legitimacy of such children if questioned, may be determined by the Court upon the proofe in the cause; and in every case the legitimacy of all children begotten before the commence- ment of suit will be presumed until the contrary be shown. 1 1 * i" 2 Comp. L. 1871, ? 4747. " 1 2 Comp. L. 1871, ? 4748 ; In case of separation the mother Li entitled to the care and custody of the children under 12, and the father of those over that, subject to the order of the Court: Laws of 1873, p. 482. '■'■' 2 Comp. L. ]871, ? 4749. "s Chandler v. Chandler, 24 Mich. 176; Perkins v. Perkins, 12 Id. 468- Cook V. Cook, 1 Barb. Ch. Rep. 639. , luo, "* 2 Comp, L. 1871, ? 4761. 598 BILL FOE DIVOEOE. Non-Age, Insanity or Idiocy. — Upon the dissolution of a mar- riage on account of the non-age, insanity or idiocy of either party, the issue of the marriage 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. ' i ^ Prior Marriage in Good Faith. — When a marriage is dissolved on account of a prior marriage of either party, and it appears that the second marriage was contracted in good faith and with the full belief of the parties that the former wife or hus- band was dead, that fact must be stated in the decree of divorce or nullity; and the issue of such second marriage, born or begotten before the commencement of the suit, will be deemed to be the legitimate issue of the parent who at the time of the marriage was capable of contracting. ^ ' « Consanguinity, Affinity. — Upon the dissolution by decree or sentence of the nullity of any marriage that is prohibited on account of consanguinity or affinity between the parties, or, of any marriage between a white person and a negro, the issue of the marriage shall be deemed to be illegitimate.' ' '' > Force or Fraud. — If there shall be any issue of a marriage annulled on the ground of force or fraud, the Court will decree their 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.^'* UabiUty of Father.— The parental duty of giving personal care and protection to children is distinct from the duty to support them. A father is under legal obligation to pro- vide for the support of his children, even if they remain with their mother after her divorce ; and as against the public and the children, he cannot escape the duty.^^* 1" 2 Comp. L. 1871, ? 4762. "« 2 Comp, L. 1871, §4763. 1" 2 Comp L. 1871, ? 4764. "« 2Comp.L. 1871,? 4770. • »• Courtright v. Courtright, 40 Mich. 633. CHAPTEE XLVIII. BILL FOE LIMITED DIVOECE OE SEPAEATION. When Granted — The Court is empowered by statute to de- cree a separation from bed and hoard forever, or for a limited time, on a bill filed by either party in the following cases : 1. When the party exhibiting the petition or bill of complaint therefor shall have resided in this State one year immediately preceding the time of filing such petition or bill, or unless the marriage was solemnized in this State, and the complainant shall have resided in the State from the time of such mar- riage to the time of filing such petition or bill.^ Such separations may be decreed for the following causes : 1. Extreme cruelty, whether practiced by using personal vio- lence, or by any other means. 2. For utter desertion by either of the parties for the term of two years. 3. When the hus- band, being of sufficient ability to provide a suitable mainte- nance for his wife, shall grossly or wantonly and cruelly refuse or neglect to do so.^ The Court, however, may, in its discretion, make an abso- lute decree^ in the cases above mentioned, where the circum- stances shall justify it.* [As to the nature of the cruelty necessary to justify a decree, see Divorce, p. 584.] To sustain a bill for limited divorce, an allegation of cruel treatment, and that the husband had wantonly and cruelly ' 2 Comp. L. 1871, ? 4741. • 2 Comp. L. 1871, ? 4739. • 2 Comp. L. 1871, ? 4740. 699 600 BILL FOB LIMITED DtVOECE OE SEPAEATIOlf. refused and neglected to provide for Ms wife, he being of suf- ficient ability, is sufficient under Section 4739, of Compiled Laws of 1871, without specifying particular facts.* After a decree of divorce 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.' And when a decree for such a divorce is denied the Court may make such order or decree for the support and mainte- nance of the wife and children, or any of them, by the hus- band, or out of his property, as the nature of the case may render suitable and proper. ^ When a decree of divorce from bed and board, forever, or for a limited time, shall have been pronounced, it may be revoked at any time thereafter under such regulations and restrictions as the Court may impose, upon the joint applica- tion of the parties, and the production of satisfactory evi- dence of their reconciliation.' The same general provisions apply to divorces of this nature as to divorces avincvXo, including provision for alimony and the care, maintenance and custody of the children! [See Divorce.] * Brown v. Brown, 22 Mich. 242 ; As to evidence, see Davies v. Davies, 55 Barb. 130; Perry v. Perry, 1 Barb. Ch. 516. 6 2 Comp. L. 1871, ? 4748. « 2 Comp. L. 1871, § 4774. » 2 Comp. L. 1871, I 4775. CHAPTER XLIX. ALIMONY AND EXPENSES. Section 1. Temporary Alimony. 2. Permanent Alimony. SECTION I. TEMPORAET ALIMONY. I Alimony is an allowance made to a wife out of her hus- band's estate or income for her support, upon her divorce or separation from him, or during the suit for the Same. It consists of two kinds : 1. Temporary; and 2. Permanent. Temporary alimony, pendente lite, notwithstanding the stat- ute, is a common law right, and Courts of Chancery are as much bound to enforce it as any other common law right. ^ Mr. Bishop says, that as this right grows out of the mar- riage relation, in strictness the fact of marriage between the parties should be admitted or proven before an order for such allowance is granted ; so also should the faculties or the ability of the husband be admitted or proven. ^ In practice, however, an allowance to the wife of alimony and money to carry on a suit instituted by her for a divorce, is almost a matter of course.* > 2 Bishop on Div., g 402 ; Story v. Story, Walk. Ch. 421 ; McGee y. McGee, 10 Ga. 477, 485 ; Petrie v. People, 40 111. 334. ' 2 Bishop on Div., Ch. xxiii, ? 386, 402. 8 Wright V. Wright, 1 Edw., Ch. 62; 2 Barb. Ch. Pr. 266. 76 601 602 ALIMONY AND EXPENSES. Oar statute provides that in every suit brought either for a divorce or for a separation, the Court may, in its discretion, require the husband to pay any sums necessary to enable the wife to carry on or defend the suit during its pendency. And it may decree costs against either party, and award execu- tion for the same, or it may direct such costs to be paid out of any property sequestered or in the power of the Court, or in the hands of a receiver.* If a wife is the defendant in a suit on the ground of adul- tery, an application on her part for alimony and expenses will not be granted unless she denies in her petition on oath the truth of the charge, or shows a valid defense by reason of con- donation. ' Such allowance will not be made, however, if it appears on the face of the bill that it is improperly filed, and . that she can obtain no decree upon it.* The affidavit of the husliand denying the ground on which the divorce is asked, is no answer to an application for ali- mony during the suit, but may be read to aid the courts in the exercise of its discretion, (a) "When the husband is complainant his poverty will not protect him from supplying money for temporary support, and to enable the wife to make a defense ; but while the Court will not directly require him to famish such support, it will suspend the suit until some provision is made for her. If he cannot aliment her, he cannot have his divorce.^ When the wife has sufficient separate property, the reason for giving her either temporary alimony or money to defray * 2 Comp. L. 1871, § 4745. ' Osgood V. Osgood, 2 Paige, 621. (a) Story V. Story, Walk. Ch. 421; Wright v. Wright, 1 Edw. Ch. 62; Smith V. Smith, 1 Edw. Ch. 255 ; Stanford v. Stanford, 1 Edw. Ch, 317. « Wood V. Wood, 2 Paige, 109. ' Purcell V. Purcell, 3 Edw. 194; 2 Bish. on M. & D., g 395; 2 Barb.Ch. Pr. 266. ALIMONT AND EXPENSES. 603 her expenses in the suit does not exist, and she is not entitled to either.* Courts ■will not compel a husband, in a divorce proceeding, to make an allowance to the wife for maintenance and coun- sel fees, unless it is made to appear that she has no property of her own. There is no presumption of law that she has no property. An order for such allowance, where no such show- ing is made, will not sustain proceedings for the punishment of the husband as for contempt in disobeying the same, (a) Amount of Alimony.— The allowance of temporary alimony, pendente lite, is discretionary with the Court, and may be con- ditional, and must always depend upon circumstances. In fixing the amount, the Court must take into considera- tion the nature and amount of the husband's means, the claims of his children and others dependent upon him for. sus- tenance and education, his ability to support himself by his own exertions, and the property of the wife.* The allowance will be limited to the actual wants of the wife in the particular case until the result of the suit in her favor establishes her right to a more liberal allowance.^" In an application for alimony and expenses, made by a wife who is complainant and appellant, this court will not decide upon the sufficiency of the bill, when the parties have taken testimony in the cause and gone to hearing upon proofs instead of demurring.*^ Temporary alimony will be allowed on appeal to the Supreme Court where the proceedings appear to have been ' Story V. Story, Walk. Ch. 421; 2 Bishop on M. & D., J 394; Rose V. Rose, 11 Paige, 166. (a) Ross V. Ross, 46 Mich., [Oct. Term, 1881,] Story v. Story, Walk. Ch. 421. ' 2 Barb. Ch. Pr. 266 ; Miller v. Miller, 6 Johns. Ch. 91 ; 2 Bish. on M. & D. 5 459-461. "> Haines v. Hames, 35 Mich. 188. " Chaffee v. Chaffee, 14 Mich. 462. 604 AMMONY AND EXPENSES. bona fide on the part of the wife, and costs of said court for the same reason will be denied to the defendant. ^ ^ But where it appeared that the appellant had been guilty of adultery pending the appeal, alimony was denied. ^^ Row Applied For. — The application should be by petition, under oath, after due notice to the opposite party. The petition should state positively and specifically the means and ability of the husband, as well as the property of the wife, and where an injunction is asked against the husband to prevent the transfer of his property, a special showing must be made, based upon actual knowledge, and not on information and belief, (a) The amount may be settled by the Court without a refer- ence, whenever the facts are sufficient before it. But in gen eral, a reference is directed.* * Costs. — When the wife has no separate estate, no decree will be made against her in favor of her husband for costs. But if the decree is in her favor, costs may be given against him. 15 Mode of Enforcement. — ^The remedy for the enforcement of the payment of temporary alimony is by attachment and not by execution.'^ The nature and purpose of allowance to >carry on litigation will not permit of their being required to depend for enforcement on execution. ^^ i» Goldsmith v. Goldsmith, 6 Mich. 285; Bishop v. Bishop, 17 Id. 212 ; Cooper v. Cooper, lb. 205; Chaffee v. Chaffee, 15 Id. 184; See Skillman v. Skillman, 18 Id. 458. Quesiion discussed as to allowance of Alimony in cases Mensa ei Thoro, Zeigenfuss v. Zeigenfuss, 21 Mich. 414. !• Goldsmith v. Goldsmith, supra. (a) 2 Bishop M. & D. ? 503; High on Inj. \ 35; Norris v. Norris, 27 Ala. 519; Jones V. R. R. Co., 39 Ga. 139 ; Bank of Orleans v. Skinner, 9 Paige 307; Bryant V. Haight, lb. 304. >« 2 Hoff. Ch. Pr. 246; 2 Barb. Ch. Pr. 268 ; Monroy v. Monroy, 1 Edw. Ch. 382 ; See Hoffman's Master in Chancery, p. 167. " De Rose v. DeRose, Hopk. 100; 2 Bishop on. M. & D. Ch. xx. \ 365. '• North V. North, 39 Mich. 67; Palmer v. Palmer, 45 Mich. 150; Laws of 1877, p. 72. 1' Haines V. Haines, 35 Mich. 138; Petriev. People, 40 111.334. ALIMONY AND EXPENSES. 605 Under the provision of our constitution, [Art. VI. § 33,] inhibitiag imprisonment for debt, a defendant in a divorce cause cannot be imprisoned except as for contempt, for failing to comply with an order directing him to pay over to the com- plaiuant a sum of money awarded as temporary alimony, and for expenses of the suit. ^ * But before a party can be imprisoned for such non-pay- ment, a proper demand of payment and refusal must be shown. He must have a reasonable time in which to pay, and a proper hearing why the order is not complied with.*' The ordinary course of proceedings for the punishment of contempt should be followed.^." [See " Contempts." ] The order granting temporary alimony being one resting in discretion, and not in itself appealable, will not be reviewed or considered collaterally, on appeal from proceedings for con- tempt in refusing to comply with its requirements, at least unless it be a very plain case of abuse of discretion. ^^ The regularity of a committal for contempt in refusing to pay alimony, will not be reviewed on an application for the writ of habeas corpus, if it was regular on its face.^ ^ SECTION 11. PEBMANENT AXIMONY. A court of chancery has no inherent power as such, to decree permanent alimony. 2* i« Steller V. Steller, 25 Mich 159. 1 • Brown v. Brown, 22 Mich. 299. " Steller V. Steller, Supra. '^ Haines v. Haines, 35 Mich. 138. '" Matter of Bissell, 40 Mich. 63. " Peltier v. Peltier, Harr. Ch. 19; Perkins v. Perkins, 16 Mich. 167 ; 2 Bishop on M. & Div. Ch. xix. J 549 ; Ch, xxii. g 561 ; Perry v. Perry, 2 Paige, 601. 606 AlIMONY AND EXPENSES. The power is a statutory one, incident to the jurisdiction over applications for divorce. 2* In England, when the court of chancery succeeded to the jurisdiction of the spiritual courts during the Usurpation, it entertained suits for alimony alone, but not since the " Eestoration." ^* Neither has it any inherent power to create a lien on real estate to secure debts which may be established against the person. 2^ The statute provides that upon every divorce from the bond of matrimony, for any cause, except that of adultery, commit- ted by the wife, and also upon every divorce from bed and board for any cause, if the estate and effects awarded to the wife shall be insufiflcient for the suitable support and mainte- nance of herself and such children of the marriage as shall be committed to her care and custody, the Court may farther decree to her such part of the personal estate of the husband, and such alimony out of his estate, real and personal, to be paid to her in gross, or otherwise, as it shall deem just and reasonable, having regard to the ability of the husband, and the character and situation of the parties, alnd all the other circumstances of the case.^* In all cases where alimony or other allowance shall be decreed to the wife or children, the Court may require suffi- cient 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 applied to the payment thereof. ^ '' »* Head v. Head, 3 Atk. 551 ; Watkyns v. Watkyns, 2 Id. 98. 2"! Bennett V.Nichols, 12 Mich. 22; Perkins v. Perkins, 1 6 Id. 167. « » 2 Comp. L. 1871, ? 4755, as amended by Laws of 1877, p. 72. s' 2 Comp. L. 1871, ? 4759, as amended by Laws of 1877, p. 32. AiniONT AND EXPENSES. 607 In case the real estate of tlie husband shall consist wholly or in part of wild and uncultivated lands, or any other unpro- ductive estate, the Court shall have power, in its discretion, to provide for the payment of such alimony or other allowance, by the sale of such lands or estate, in such manner as the Court shall direct. ^^ Any Circuit Court in Chancery may review any decree of said Court allowing alimony, on petition of either party, and may alter or amend such decree, whenever it shall, from evi- dence, become satisfied that any error occurred in estimat- ing the amount of the 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. ^^ The statute also provides that 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 decree respecting the amount of such alimony or allowance, and the payment thereof, and may make any decree respecting any of the said matters which such Court might have made in the original suit.^' Said statute only authorizes such revision on new facts thereafter transpiring, which are of such a character as to make the change necessary to suit such new state of facts. ^' An award of alimony may be made in gross instead of annual allowances.^" The Court favors the allowance of ali- mony in gross, instead of by periodical payments, in cases where the husband would be likely to vexatiously delay or withhold payments.'^ In fixing alimony in a decree for a limited divorce where the income of the husband, derivable from his property, is not »' 2 Comp. L. 1871, § 4759, as amended by Laws of 1877, p. 32. Note. — An execution and not attachment lies for enforcement under this Act. North V. North, ^g Mich. 6j. " 2 Comp. L. 1871, § 4760. " Perkins v. Perkins, 12 Mich. 456; Chandler v. Chandler, 24 Id. 176. »» Hamilton v. Hamilton, 37 Mich. 603; Taylor v. Gladwin, 40 Id. 232. " McClung V. McClung, 40 Mich. 494. 608 AUMONY AND EXPENSES. sufficient for the support of all dependent upon it, and the parties have been accustomed to rely upon their joint labor for their support and accumulations, the allowance ought not to be so large as to relieve the wife from all necessity for doing anything for her own support. ^^ Where a decree of divorce was granted on bill and cross- bill on the ground of extreme cruelty, and alimony allowed the wife, and she only appealed, it was held that the Court below should have dismissed both bills, and left the parties where their misconduct had placed them, as divorce laws are made to give relief to the innocent and not to the guilty. But as the husband had not appealed, the decree could not be modified to her prejudice, (a) How Enforced. — Permanent alimony cannot be enforced by attachment.'* The remedy is by execution. '* The sufficiency of the alimony allowed in Chancery cannot be reviewed by a jury in a proceeding at law against a hus- band's estate to recover for the wife's support.*' In a suit brought by the husband, an appeal may be taken by the wife from a decree against her, if within the statutory period, after his death, where he left a considerable estate.*^ But before such an appeal can be brought to a hearing, or any further proceedings had in it, the proper steps must be taken to bring in as parties the representatives of the deceased com- plainant and his heirs. *^ But the administrator of the deceased complainant will not be compelled to pay alimony on such appeal.** " Brown v. Brown, 22 Mich. 242. {a) Hoffv. Hoff, (April Term, 1882,) 47 Mich.; Heath v. Waters, 40 Id. 457; Watch V. Hurst, 38 Id. 1. »» North V. North, 39 Mich. 67. " Taylor v. Gladwin, 40 Mich. 232 ; Palmer v. Palmer, 45 Id. 150 ; Laws of 1877, p. 72. ' »« Crittenden v. Schermerhom, 39 Mich. 661. Note. — Where husband was permitted, as to valuation, to elect to pay Ali- mony in land, see McClurg v. McClurg, 42 Mich. Jj. s« Shafer v. Shafer, 30 Mich. 163. ALIMONY AND EXPENSES. ' 609 The right to recover alimony decreed, continues only during the life of the defendant.^ ' The allowance made to the complainant in the Circuit Court for alimony, will not be increased on the defendant's appeal, in the absence of any new showing ou the subject.^* Where on appeal by complainant, the Court granted an order that defendant advance the expense of printing, but it being claimed that much irrelevant matter had been intro- duced, it was also ordered that complainant execute security to refund the same, or such part as might be thereafter decreed to be refunded,*^ Damages in the Supreme Court will be imposed in a divorce suit in lieu of interest and allowances to the wife, for vexa- tiously delaying her, and for her expenses in carrying on her suit.*" When alimony, fixed in a divorce suit brought by the wife, has been duly paid, and no application has been made for a greater amount, the husband is not liable for necessaries after- wards furnished her.*' A bill for divorce (under Comp. L. 1871, § 4738, sub. 6) alleging that the defendant had obtained a divorce from the complainant in another State, on appeal by the defendant from the decree below to the Supreme Court, does not differ, as regards the granting of alimony, from any other divorce suit.*^ 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, 8 7 2 Bishop M. & Div., Ch. xix, ? 559; Sackett v. Giles, 3 Barb. Ch. Rep. 204 ; Walliugstord v. Wallingsford, 6 Harr. & Johns. 485; Gaines v. Gaines, 9 B. Mon. 295. »8 Goodman v. Goodman, 26 Mich. 417. = » Chaffee v, Chaffee, 14 Mich. 462. «" McClung V. McClung, 40 Mich. 494. " Crittenden v. Schermerhom, 39 Mich. 661. «» Wright V. Wright, 24 Mich. 181. 77 610 ALIMONY AND EXPENSES. and without any further hearing or decree, was held illegal and invalid.** An order opening for review a decree for permanent ali- mony is interlocutory and cannot be appealed from.** Also one allowing temporary alimony.*® An order modifying a decree for alimony is a final order.** An allowance of alimony should be appealed from, and not attacked collaterally.*' 4» Perkins v. Perkins, 36 Mich. 161. ** Perkins v. Perkins, 10 Mich. 425 ; Enos v. Sutherland, 9 Id. 148; Bullard V. Green, lb. 222 ; Maxfield v. Freeman, 39 Id. 66. ^5 Lapham v. Lapham, 40 Mich. 527. 4« Chandler v. Chandler, 24 Mich. 176. *•> Taylor v. Gladwin, 40 Mich. 232. OBSEBVATIONS ON DIVOECE. Divorce laws, operating as they do upon the most sacred relations of human lifd, aud being so far-reaching in their con- sequences, it does not seem out of place to add to the fore- going chapters a brief statement of the practical working of them in our own community ; together with a glance, by way of comparison, at the statistics of those States where especial care has been exercised in compiling them. These figures show a rapid and wide-spread increase of divorces. Evpn under the more stringent laws of Europe, the evil is growing steadily, and with a uniformity that classes it among the social tendencies of the day — the outcome, perhaps, of that exaggerated individualism which, in its eager assertion of rights, takes small account of duties. The conviction that it is a tendency to be strenuously resisted, has resulted iu our own country in the formation of the Jifew England Divorce Reform League, an association whose object is the investigation of abuses, the publication of facts, and the holding of meetings for educating and moving public opinion on the subject of Divorce Law. Some systematic movement in the Western States towards checking the debasement of public sentiment on this subject is greatly to be desired. The absence of reliable statistics for the whole State, makes a tabulated statement of the increase of divorces in Michigan impracticable. It would be a step in the right direction if returns of the number of divorces granted were required to be made to the State Librarian, and included in the annual report 611 612 OBSERVATIONS ON DIVOECE. of marriages, births and deaths. Apparently, the legislation of Michigan has been marked by a gradually weakening con- viction of the sanctity of the marriage bond, which in the course of the forty-four years since she was admitted as a State, has resulted in the addition to the five original causes for divorce, a sixth, that of habitual drunkenness ; in reducing the period for which desertion becomes a cause, from five years to two ; and in requiring but one year's legal residence in the State, instead of two as formerly. The only statistics available at the present writing, those of Wayne and Kent, the two most populous counties in the State, are as follows : From January 1st, 1881, to May 5th, 1882, whole num- ber of marriages recorded, 1,671 Divorce suits begun, - 295 Decrees granted, - - - 137 Cases still pending, ' 140 There have been thirteen suits discontinued, and five dis- missed. The proportion of decrees granted to applications filed is therefore 137 to 155. If the same proportion shall hold in the 140 cases still pending, the result will be 260 decrees granted to 295 bills filed. Thus for the last sixteen months, we shall have a percentage of divorces I0 marriage of more than one-sixth. It is unfortunate there is no record to show how many of these persons are already remarried. It is not too much to assume that such a record would make plain the necessity of some fixed limit during which the culpable party at least, should be debarred remarriage. The population of Wayne county is estimated at this time to be 200,000, showing since January 1, 1881, one divorce to 769 of population. The record for Kent, the second county in the State for poptilation, for the same period of sixteen months (from Janu- ary 1st, 1881,) is as follows: Marriages recorded, - 921 Divorce suits commenced, 202 Population of Kent county, 76,253 OBSEEVATIONS ON DITOECE. 613 showing an application for divorce for every 4.2 marriages, and for less than every 373 of the inhabitants, including men, women and children. There is no reason to suppose that the percentage of divorces in "Wayne and Kent counties exceeds that of other sections of the State, and meager as these statis- tics are, their drift cannot be mistaken. It may be assumed that here in this commonwealth, we have worse results of lax divorce legislation than are shown by the statistics of any other State in the Union. The mind shrinks from the attempt to conjecture what must be the near result of such a state of demoralization. It forces the conclusion, that disregard of, and contempt for the obligations of the marriage bond, is the dry-rot of our society, eating out its life with awful certainty, however strong and prosperous the surface may appear. The statutes of Michigan provide for legal separation as distinguished from absolute divorce, but in Wayne county there have not been to exceed six applications of this nature in as many years, and these rare cases were among the mem- bers of a church whose law does not permit divorce. Such separation affords full protection against the claims of one who may be disposed to assert rights without fulfilling correspond- ing obligations. The almost entire disuse of this legal remedy points to the conclusion that with few exceptions the prime motive in filing a bill is to secure the liberty of remarriage. The position that morality is promoted by this liberty would seem to be refuted by carefully prepared statistics, the work of the Eev. Samuel W. Dike, of Vermont, who says upon this point: "The assertion is often made that easy divorce checks licentiousness. So far as the meager statistics go to show anything, they prove that this is not true. On the contrary, the two have increased together. Divorces have doubled, or more than doubled, in twenty years past, and con- victions for licentious crimes in Massachusetts have doubled two or three times over, while other crimes, taken together, have not increased as fast as the population." His statistics are certainly suggestive : 1866-9 1876-9 683 1,537 1,625 2,766 1,352 2,255 57,551 52,202 614 OBSEEVATIONS ON PIVOECE. Crimes against chastity in Massachusetts, Illegitimate births, Divorces, Marriages, The result upon the moral life of the nation of the loss of just views concerning the sacredness of the family tie, can readily be foreseen. The education of a few generations to regard marriage as purely a civil contract, cannot fail to obscure, in the public mind, the Divine character of the insti- tution which has been made the foundation stone of social and national development. How rapidly this poison may spread is illustrated by the change in the New England States within forty years. Prior to 1840, the few and simple laws upon the statute books relating to divorce were comparatively a dead letter. Beginning with the year 1843, the course of legislation in these States — ^the most settled and conservative section of our country — has been to open the door wider and wider for divorces, until statistics carefully gathered by Eev. Mr. Dike and Mr. Carroll D. Wright, of the Massachusetts Bureau of Statistics, show that in Connecticut there has been for the last fifteen years, not quite one divorce for every ten marriages. Between 1849 and 1864, when the population of the State was increasing about fifty per cent., the ratio for the increase of divorces was five hundred per cent. During eight years, New Hampshire shows an increase in divorces of fifty per cent., with no increase of population. In 1880 there were five hundred and ten divorces granted in the State of Maine. Mr. Dike's reports from five counties show an increase of nearly thirty five per cent, in two years. Mr. Dike states that in Ehode Island the ratio of divorces to mar- riages is about one to thirteen. Mr. Wright gives the increase in the population of Massachusetts in twenty years as fifty per cent., the increase in divorces one hundred and fifty per cent. At the beginninp; of that period, there was one divorce for every fi:'y-o:ie ma.riages. At the end, the rate is one to tweuty-cne. OBSEEVATIONS ON DIVOECE. 615 Dr. Woolsey, commenting on these statistics, says : " The story of divorce told by the tables is too good a one, for the reason that many of the marriages are made between members of a church which allow no divorce within its pale. We must, therefore, deduct the marriage of Catholics before we can say with tolerable accuracy what ratio divorces and marriages bear to one another in sects and classes of people which do not condemn the dissolution of marriage altogether. This, Dr. N. Allen, of Lowell, Mass., has sought to do in the June num- ber of the North Amencan for 1880, by obtaining from Catholic Bishops the number of marriages among their flocks and deducting them from the State tables. A table will present the effect of these deductions more clearly to the eyes : 1878. Massachusetts. Connecticut. Vermont. Rhode Island. Marriages, 12,893 4,315 2,766 2,324 Catholic marriages, 3,978 1,019 325 646 Differences, 8,915 3,296 2,441 1,678 Divorces, 600 401 197 196 First ratio, - - 1 to 21.4 1 to 10.76 ltol4 1 to 11.8 Final ratio, - 1 to 14.86 1 to 8-22 1 to 12.4 1 to 8.5 Dr. Woolsey says : " The results reached by these deduc- tions are, however, a little unfair, as not taking into account the divorces of persons once Catholic, who have thrown away their religion, and others, especially emigrants from certain countries of Europe that never had any." * These statistics, startling as they are, give us no idea of the damage to the family life, thus made altogether subordinate to the preferences or caprices of the individual — no record of the number of children, upon whom the future health of the national life depends, being educated under fatally false con- ceptions of the domestic relation, the unity of the family, and the sanctity of home. Yet such figures speak for themselves, and need no emphasis or elaboration. No class of men in the community can do more to check the growth of this evil than *Divorce and Divorce Legislation, Especially in the United States. By Theodore J. Woolsey, D.D. LL. D. Second Revised Edition. 1882. 616 OBSl^EVATIONS ON DIYOECE. the legal profession. TJpon them it would seem to devolve, First, to rise above the strictly legal view in this class of cas&s to that broader conception of the law, which makes it a benefi- cent agent in elncidating to man the Divine will touching his social development ; and, Secondly, to wage a relentless war upon those unworthy members of a noble calling, who seek gain by encouraging and facilitating the license which is bearing its baleful fruit in this rapidly spreading evil — an evil the more threatening because it is working secretly. The writer could not undertake in these observations to do more than call the attention of his legal brethren to facts, which, from special circumstances, have been forced upon his attention during the last few months. He does this much, hop- ing that some among them may feel constrained to set in motion a careful inquiry as to the legislative remedy demanded. CHAPTER L. PEOCEEDINGS BY AND AGAINST INFANTS. Section 1. Sucrs on their Behalf. . 2. Suits Against Them. 3. Proceedings for the Sale of their Real Estate. SECTION I. SUITS ON THEIR BEHALF. Wliile an infant labors under certain legal incapacities and disabilities, he is entitled to assert his rights in any court at law or equity ; and for this purpose a suit may be maintained on its behalf even before birth, as an infant en ventre samere; and the Court in such suit may grant an injunction to stay the Commission of waste upon his property.^ But although an infant may maintain a suit for the asser- tion of his rights, he can do nothing which can bind himself to the performance of any act. Therefore where, from the nature of the demand made by the infant, it would follow that if the relief sought were granted, the rules of mutuality would require something to be done on his part, such a suit cannot be main- tained.^ The statute provides that when an infant shall have any right of action to recover any real property or the possession thereof, or to recover any debt or damages, he shall be entitled 1 1 Dan. Ch. Pr., Ch. iii, ? 5, p. 67. • 1 Dan. Ch. Pr., § 5, p. 68 ; Hargrave v. Hargrave, 12 Beav. 408. 78 617 618 fEOCEEDlBTGS BY AHX) AGAINST INE"ANTS. to maintain a suit thereon ; and the same shall not be deferred or delayed on account of such infant not being of full age.* The statute also directs that, before any process shall be issued in the name of an infant who is sole plaintiff in any suit, a competent and responsible person must be appointed to appear as next friend for such infant in such suit, who shall be respon- sible for the costs thereof.* Though the language seems to apply to infants who are sole complainants, yet it has been decided that the statute applies when the infant joins with adults.^ If a bill is filed without such appointment, the defendant may move to have it dismissed with costs, to be paid by the solicitor.^ When it becomes necessary for the infant to apply to a Court of Equity, his nearest relative is supposed to be the per- son who will take him under his protection and institute the suit for him. For this reason the person who commences such suit is termed his next friend [Prochein Ami].'' But as it frequently happens that the nearest relative of the infant is not a proper person to prosecute such suit, owing to adverse interests or otherwise, the Court will appoint any other competent person as the next friend. Such person is also treated as an officer of court, and responsible accordingly.' He is liable for costs where the suit is wantonly or improp- erly instituted.^ If the next friend fails to perform his duty, or appears in any way to be unfit, the Court will, on motion, after notice, order him to be removed.^" " 2 Comp. L. 1871, U 6530, 6387. 4 2 Comp. L. 1871, i 6531. » Matter of Frits, 2 Paige, 374. « 2 Dan. Ch. Pr. 68. ' Story's Equity PI., J 57, Mitf. 2 Eq. PI. 25. 8 Story's Eq PI., ? 57. For full discussion of rights of a prochein ami, su Morgan v. Thorne, 7 Mees. and Wels. 400, 406. 9 Story's Eq. PI., \ 59. 10 3 Dan. Ch. Pr., p. 75; 2 Barb. Ch. Pr. 205. PEOCEEDINGS BY AND AttAINST INFANTS. 619 "WTien it appears to the Court that a suit preferred in the infant's name is not for his benefit, an inquiry into the facts will be directed to be made to a commissioner with a view of staying the proceedings. ^^ Neoct Friend, Hoio Appointed. — Such appointment may be made by a Circuit Judge, or the Circuit Court Commissioner, on the petition of the infant, and the written consent of the person proposed to be next friend, duly acknowledged before or proved to the officer making the appointmentl ' ^ When the infant is too young to sign a petition, some rela- tive or friend may present it.^* It should not be (-nlitled in the suit intended to be brought as there is no suit in existence before the appointment. Before any person will be appointed next friend for an infant in any suit to recover any debt or damages, he must, if required by the officer to whom the application for such appointment shall be made, execute a bond to such infant 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 lio such infant for all monies which may be recovered therein, i* Such bond must be delivered to such officer before the appointment 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.' ^ This provision was probably intended for suits at law, still such security may be dispensed with in a proper case, in the discretion of the officer. But if not dispensed with, the next 1 1 1 story's Eq. PI., | 60 ; Mitf. Eq. PI., 27, 28 ; Coop. Eq. PI. 2S ; Fulton Roseve't, 1 Paige, 79. 12 2 Comp. L. 1871, ?? 6532, 6533; Haines v. Oatman, 2 Doug. 430. 1' Matter of Fritz, 2 Paige, 376. " 2 Comp. L. 1871, | 6534. ' = lb. § 0535. 620 ■ peocEeding^s by and against INPAUTS. friend cannot receive any money decreed to the infant, except costs, unless such bond be given. Chancery Eule 94 provides that no guardian ad litem for an infant defendant, or next friend of an infant complainant, unless he has given security to the infant, according to law, shall, as such guardian, receive any money or property belong- ing 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.^^ The general guardian of an infant is also forbidden from receiving 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 he has given such further security for the faithful discharge of his trust as the Court may direct. ^^ The new security required before money belonging to infant litigants, can be turned over to general guardians, calls for a responsible showing, and cannot rest on loose verbal state- ments. Guardians ad Mem cannot bind infant defendants except in strict accordance with the rules framed for their protection, and a general guardian does not represent them at all where a guardian ad litem is appointed. The Court before giving up control of a fund belonging to infant litigants, should see that the rights of their guardian ad litem and his solicitor are secured. 1^ Such guardian cannot accept a deed in lieu of money ordered to be paid, (a.) The order for the appointment of a next friend must be filed in the office of the register of the Court before any biU shall be filed in such cause.' * " Ch. Rule 94; Westbrook v. Comstock, Walk. Ch. 314. 1 ' Sheahan v. Wayne Circuit Judge, 42 Mich. 69. (a) Westbrook v. Comstock, Supra; As to settlements of their accounts, see Cheever v. Congdon, 34 Mich. 296; Robert v. Morrin, 27 Id. 306. " 2 Comp. L. 1871, g 6536. PEOCBEDINGS BY AND AGAINST INFANTS. 621 An infant who has no in;ans of indemnifying a responsible person for costs, will be permitted to sue by his next friend in forma pauperis. ^ ' An iufant when complainant, is as much bound by a decree as an adult. In this respect courts of equity follow the rule of law.'^" But if gross laches appear on the part of the pro- chien ami the infant may open the decree by a new bill.^ ^ In general, infants are bound as much as adults by the con- duct of their solicitors, as respects matters of practice, acting bonaflde in their behalf, but not as to matters of mistake, fraud or collusion.^ 2 The appointment as guardian ad litem for an infant defend- ant, of his co-defendant, whose interests are identical with the complainants, who is charged in the bill with defrauding him in common with the complainant, is a perversion of the whole purpose of requiring such guardianship, and will not be per- mitted, ^s Upon an appeal from the action of the probate court on an administration account, the circuit court may if deemed neces- sary, appoint a new guardian ad litem.'^* Costs. — Courts encourage those who act in character of next friend and will allow costs when he has acted in good faith. ^^ It is a general rule that a prochein ami shall pay the defend- ant's costs in case the complainant's bill is dismissed. ^^ 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 behalf, i» 2 Dan Ch. Pr. 74 ; 1 Hoff. Pr. 58; Fulton v. Rosevelt, 1 Paige, 178; Lindsey v. Tyrrell, 24 Beav. 124. i"> Gregory v. Molesworth, 3 Atk. 626. a> 2 Barb. Ch. Pr. 206. "> 1 Hoff. Ch. Pr. 59 ; 2 Barb. Ch. Pr. 207 ; 1 Dan. Ch. Pr. 74. " Damouth V. Klock, 29 Mich. 290. «* Walker v. Hull, 35 Mich. 488. «« 2 Dan. Ch. Pr. 80. •« 2 Barb. Ch. Pr. 208. 622 PEOCEEDINaS BY AND AGAINST INFANTS. than to present to the Court such facts as show their rights in the matter, costs should not be awarded against them. 2' SECTION II. SUITS AGAINST THEM. After the issuing of process against an infant defendant, the suit cannot be further prosecuted until a guardian shall have been appointed to put in his defense and protect his rights.^' Such appointment must be made upon the request of the infant defendant, and upon the written consent of any compe- tent person proposed as guardian, by the Court, or any Circuit Judge, or Circuit Court Commissioner for the county where the suit is brought.^* If such infant defendant neglect for twenty days after the return day of the process to procure the appointment of a guardian to defend the suit, the complainant may obtain an order from any Judge or officer of the Court, requiring such infant to procure the appointment of a guardian within ten days after service of such order.*" If no appointment be so made, the Judge or officer granting the order will appoint some proper person as guardian to defend such suit.' ^ Costs. — No persop appointed such guardian will be liable for costs unless specially charged by the order of the Court for some personal misconduct in such cause. *^ s' Smith V, Smith, 13 Mich. 258. = 8 2 Comp. L. 1871, ? 6537. " 2 Comp. L.1871, 2 6538. '0 2 Comp. L. 1871, ? 6539. «» 2 Comp. L. 1871, § 6540. " 2 Comp. L. 1871. ? 6541; 1 Hoff. Ch. Pr. 173. PROCEEDINGS BY AND AGAINST INFANTS. 623 The first step for the guardian to take is to enter his appearance in the cause. It is his duty to put in a defense on the part of an infant, and any defense without such guardian is irregular, for he is liable for the costs if such defense be improper, or if the answer be scandalous or impertinent.*^ [For mode of answer, see ante, p. 86.] If a plea is put in it must be sworn to by the guardian ad litem, unless an order has been obtained to take it without oath.*' Acts of their Solicitors. — Infants are bound by the acts of those who conduct their cases the same as adults, provided they proceed bona fide. The assent of their solicitor to a departure from the ordinary method of taking testimony in the commissioner's ofSce, is binding.** How Far Bound hy Admissions. — As infants cannot bind themselves by their answer, so they cannot be bound by admissions in another stage of the proceeding, unless perhaps they are for his benefit. Hence the rule that no decree can be taken against an infant on a bill taken as confessed, or on the answer of the guardian ad litem, admitting the facts necessary to be proven to entitle the complainant to the relief prayed. The answer in such a case is a mere pleading, and the com- plainant is put to proof.* ^ An infant cannot empower an agent or attorney to act for him ; and he therefore cannot affirm what another has assumed to do in his name as an agent or attorney. He cannot affirm what he could not authorize. The protection of infancy is a substantial one, and is not to be put aside and overcome by indirect methods.*^ " 2Barb. Ch. Pr. 209. 8* Tillotson V. Hargrave, 3 Mad. 494; 2 Barb. Ch. Pr. 207. " Thayer v. Lane, Walk. Ch. 200 ; Smith v. Smith, 13 Mich. 2-58 ; Burt v. McBain, 29 Id. 260 ; Cooper v. Mayhew, 40 Id. 528; Barnes v. Hazleton, 50 111. 429. »= Armitage v. Widoe, 36 Mich. 124. 624 PEOCEEDINGS BY AND AGAINST INFANTS. The Court has general supervisory power over the persons and estate of infants, and is bound to guard their interests whether protected by their guardian or not.^^ Beplication to InfanVs Answer- -Where it is necessary for the complainant to establish some fact which it is not for the interest of the infant to admit, his answer must be replied to, and the fact proven by evidence in the usual manner.^' Where infants are defendants the case against them must be established by strict evidence, and it is necessary they should have been parties to the suit when the witnesses were examined.^ ^ Foreclosure Suits.^-General guardians do not represent their infant wards in foreclosure proceedings, and the solicitors of the guardians cannot bind the rights of the infants ; nor can guardians ad litem bind the infants except in strict accordance with the rules for their protection.*" It is irregular practice for a guardip.n ad litem of an infant defendant in a foreclosure suit, to join in an answer with other defendants. The guardian or attorney of an infant defendant in foreclosure, has no implied power to stipulate for the intro- duction of evidence of facts occurring since the filing of the bill.4i A guardian has a clear right to redeem his ward's lands from a mortgage sale.^ ^ Money belonging to infant litigants in foreclosure cannot be ordered paid to the solicitors of their general guardian, as " 2 Story's Eq. Jur. §§ 1352, 1352 n.; Westbrook v. Comstock, Walk. Ch. 314 ; Sheahan v. Judge of Wayne Circuit, 42 Mich. 69 ; Wood v. Wood, 5 Paige, 596. S8 2 Barb. Ch. Pr. 210. »9 Qaantock v. BuUen, 5 Mad. 81. *' Sheahan v. Judge of Wayne Circuit, 42 Mich. 69. Matter of Lansing, 3 Paige, 265. " 2 Comp. L. 1871, ? 5172. «» 2 Comp. L. 1871, ? 5173. •• 2 Comp. I* 1871, §5174. PROCEEDINGS BY AND AGAINST INFANTS. 629 he had in the estate so sold ; but the proceeds will be deemed real estate of the same nature as the property sold.^* The object of this provision of the statute was to preserve, during the infant's minority, the character of the property in reference to the statutes regulating descents and distribution.* ^ Claim, of Dower, Sow satisfied. — If the real estate of any infant, 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 invest- ment of a reasonable sum, in such manner as that the interest thereof be made payable to the person entitled to such dower, during life, the Court may direct the payment of such sum in gross, or the investment of such as shall be deemed reasonable and shall be acceptable to the person entitled to such dower, in manner aforesaid ; which sums so paid or invested shall be taken out of the proceeds of the sale of the real estate of such infant.'* Before any such sum shall be paid, or such investment made, the Court must be satisfied that an effectua,l release of such right of dower has been executed.*' The statute also directs that whenever it shall be made to appear to the Court that it will be manifestly for the interest and advantage of the infant or infants that any incumbrance upon the real estate of such infants should be purchased and discharged, in whole or in part, the Court may authorize the guardian of such infant to purchase and discharge the same, and, if necessary, to sell and dispose of such part of the real estate of such infants as may be necessary for that purpose. Provided, such purchase and discharge shall in no way be con- strued as vesting in said guardian any right, title or interest in such premises, to the prejudice of such infamts.** «* 2Comp. L. 1871,15175. " Forman v. Marsh, 11 N. Y. 544; 16 Barb. 506. •« 2 Comp. L. 1871, I 5176. " 2 Comp. L. 1871, ? 5177. " 2 Comp. L. 1871, I 5185. 630 PROCEEDINGS BY AND AGAINST INFANTS. Mnal Beport. — ^When the sale has been completed by the payment of the purchase money and the delivery of the deed to the purchaser, the guardian should make a final report thereof, with a statement of deduction for costs, and the dispo- sition of any balance. General Guardians. — The appointment of general guardians in this State is vested in the Probate Courts,'^ except where a father appoints a testamentary guardian."* Partition. — In partition cases the general guardian of minors residing in this State must represent their wards in partition proceedings, and give bonds, as required by law. And the Court is directed to appoint guardians ad litem for such minors as have no general guardians. '^ Divorce. — A bill to annul a marriage on the ground that one of the parties was under the age of legal consent, may be exhibited by the parent or guardian entitled to the custody of such minor, or by his next friend ; but in no case shall such marriage be annulled on the application of a party who was of the age of legal consent at the time of the marriage, nor when it shall appear that the parties, after they had attained the age of consent, had freely cohabited as man and wife.'^ Land Held in Trust. — Whenever any infant 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 property is situated, or in which such infant may be, on the petition of the guardian of such infant, or on the application by bill or petition of any person in any way interested, may order and compel such infant to convey and assure such lands, tenements and heredi- " 2Comp. L. 1871, Ch. 172. "> 2 Comp. L. 1871, § 4819, as amended by Laws of 1871, p. 3. " 2 Comp.L. 1871, g 6278-9, ? 6337 to 6341; Croghan v. Livingston, 17 N. Y. 218. '» 2 Comp. L. 1871, J 4766. PROCEEDINGS BY AND AGAINST INFANTS. 631 taments to any other person in such manner as the said Court shall direct.'* Every conveyance or assurance made pursuant to such order, shall be as good and effectual in law as if the same were made by such infant when of lawful age.''* It is also provided, that where lands are held by executors in trust for infants, the same may be sold on petition when it shall appear to be for the best interests of such infants, (a) " 2 Comp. L. 1871, ? 5163. '* 2 Comp. L. 1871, ? 5164; Hill v. Ressegien, 17 Barb. 162. (a) Laws of 1881, p. 25. Note. — In proceedings by railroads to acquire title to real estate of minors, See Laws of 18^3 as amended. By Plank Roads Companies: 1 Comp. L. 1871, ?? 2544, 2575, 2581. As to the interest of infants in the accumulation of rents and profits of real estate under any will and deed, See 2 Comp. L. 1871, |2 4104.-4107. QHAPTEE LI. BILLS FOE SPECIFIC PEEFOEMANOE. Section 1. Nature of and When Proper. 2. When Refused. 3. Parties to. 4. Frame of Bill. 5. Decree. SECTION I. NATUEE OF, AKD "WHEN PEOPEE. In this Chapter we can only notice some of the general principles governing this class of cases, and some points of practice. The specific performance of contracts is an ancient branch of the equitable jurisdiction of the Court of Chancery, arising out of the incapacity of the courts of common law to enforce the actual performance of the contract.^ The fact that the legal remedy has been lost by the default of the party seeking the specific performance will not exclude the jurisdiction if it be conscientious that the agreement should be performed, as in cases, where the complainant has performed his part substantially but not with such exactitude as to be able to plead performance at law. But if the complainant has an adequate remedy at law, he must seek redress there. ^ ' 1 Story's Eq. Jur. ? 716 ; Fry on Spec, Perf., ? 1. ' Coale V. Barney, 1 Gill & Johns, 324 ; Voorhees v. DeMeyer, 2 Barb. Sup. Ct. 37; McCorklev. Brown,9 Smedes. & Marsh. 167 ; Waterman on Spec. Perf., J 9, and cases cited. 632 BILLS FOE SPECIFIC PEEFOEMANCE. 633 The jurisdiction of equity in specific performance pro- ceeds on the supposition that the parties have not only agreed, as between themselves, upon every material matter, but that the matters so agreed upon are of such a nature, and the sub- jects of enforcement so delineated or indicated, either directly or by reference to something else, or so raised to view by legitimate implication, that the Court may collect and place in their proper relations all the essential elements, and pro- ceed intelligently and practically in carrying into execution the very things agreed upon and standing to be performed.^ For this reason it is that courts of equity do not, as a matter of course, decree specific performance of contracts for the conveyance of lands, but they exercise a discretionary power in view of all the facts of the case. This discretion, however, must not be arbitrary and capricious, but regulated on grounds that will render it judicial.* Courts of equity recognize and protect the rights of assignees, and enforce the performance of contracts in their favor.* Persona&y. — Courts of equity will not in general enforce specifically contracts relating to personalty except when there is no adequate remedy at law. (a) ' Blanchard v. D. L. & L. M. R. R, Co., 31 Mich. 44, and numerous cases cited; Russell v. Merter, [June Term, 1881,] 46 Id, See notes to Hughes' Eq. Draftsman, page 8 to 30. *' Smith V. Lawrence, 15 Mich. 499 ; McMurtrie v. Bennette, Harr. Ch. Rep. 124; Chambers v. Livermore, 15 Mich. 381; Twiss v. George, 33 Mich. 253; Adams' Eq., Chap. 2, note 1, and cases cited ; 1 Story's Eq. Jur., JJ 742, 769 ; Waterman on Spec. Perf., J 6, and numerous cases cited. 5 Street v. Dow, Har. Ch. 427. (a) Waterman on Spec. Perf. g 16 to 20, 72, 73. 80 634 BILLS FOE SPECIFIC PEEFORMANCK SECTION II. WHEN EBFUSBD, As a general rule specific performance will be refused ■where it is clearly inequitable to grant it,^ and where the decree would bea vain or imperfect one, liable at any moment to be defeated by the act of the parties themselves ; ^ e.g. cases, of arbitration, and certain agreements to form partnerships.'' Before the Court will specifically enforce a contract, it must not only be material and the tie reciprocal,* but it must be certain in all essential particulars.' The contract sought to be enforced must not only be just and equal, but it must embody the real understanding of the parties, else this extraordinary power will not be exercised : The Court will rather stand still and interfere neither for the one nor the other, i" And in judging, the Court will look at the mental incapacity of either party, ignorance, absence of attorney, and any other thing implying an absence of iuteli- gent assent. 11 The unfairness may also exist in the terms of the contract itself, or in matters extrinsic, and in which ca&& parol evidence » Munch V. Shabel, 37 Mich. 166; I Story's Eq. Jur. g 789. ' Buck V. Smith, 29 Mich. 166, and cases cited on p.'172 ; McGunn v. Han- lin, lb. 476; Tobey v. Co. of Bristol, 3 Story's (C. C.) 800; Conner v. Drake, 1 Ohio St. 166; Story's Eq. Jur. ? 666; Fry Spec. Perf. § 961; Colly on Part. 107, 110; Waterman on Spec. Perf. Title, Partnership. 8 McMurtrie v. Bennette, Harr. Ch. 124; Hawley v. Sheldon, lb. 420; Chambers v. Livermore, 15 Mich. 381 ; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 281. » McMurtrie v. Bennette, supra ; Ramsdell v. Millerd, lb. 373 ; Bomier v. Caldwell, lb. 65 ; S. C. 8 Mich. 463. i" Fry on Specif. Perf. g 233, note 2; Eames v. Eames, 16 Mich. 348. ". Fry on Specif. Perf. ?| 239, 240, 241. BILLS FOE SPECIFIC PEEFOEMAJS^CE. 635 is admissible.'^ So jealous is equity of the exercise of this power that it has established the principle that it will not decree specific performance unless it appear that the party applying for the aid has not only acted fairly, but without sus- picion. If there be a reasonable doubt upon the transaction, the Court will leave the party to his legal remedy. '* The burden of proof therefore, rests upon the complainant to present such superior equities that the Court cannot remain passive, but must interfere for the protection of justice.'* There must be no misrepresentation or fraud.' ^ The gen- eral rule is substantially the same at law or in equity, viz : That to constitute a defense the misrepresentations must have been, (1) ; Material and constituting an inducement. (2) ; Must have been false. (3); Must have been relied on.'* But in a defense to a bill for specific performance, perfect good faith being required of the complainant, the Court will refuse its aid if the contract was obtained by means of mis- representation or indirection, which would not be sufficient to avoid a contract at law.' '' Nor will it be decreed in favor of a complainant who has laid by, without performance on his part, until there has been such a change in the value of the property as to render the contract unequal, and hence unfair.'* Specific performance may be refased for want of mutuality in a land contract where it is so draw^n as to leave it optional with the grantor to retain or convey the property. '^ '• Fry on Specif. Perf. g 234; Chambers v. Livermore, 15 Mich. 389; 1 Hilliard on Vend. 174. i» 3 Parsons on Cont. p. 415, note k; Mason v. Armitage, 13 Ves. 37. 1 * Fry on Specif. Perf. ^ 233, note 1 ; Benedict v. Lynch, 1 Johns. Ch. 370 ; Seymour v. Delancey, 6 Id. 222. 15 Fry on Spec. Perf. |§ 425,459 ; Seymour v. Delancey, 3 Cow. 445. Also see various special cases where Courts will^ not decree Specific Performance : 1 Story's Eq. Jur. g 793 f, to 793 n. " 1 Story's Eq. Jur. H 190, 212; 1 Hilliard on Vend. 324. 1 ' 3 Parsons on Cont., 414, notes d and e ; 1 Hilliard on Vend., p. 437, \ 21 ; Picard v.' McCormiclc, 11 Mich. 68; Cadman v. Homer, 18 Ves. 10; Best v, Stow, 2 Sandf. Ch., 298; Henderson v. Hays, 2 Watts, 148 ; Fisher v. Wor- rall, 5 Watts and Serg. 478. " Smith V. Lawrence, 15 Mich. 499. » » Maynard v. Brpwn, 41 Mich. 298. 636 BILLS FOE SPECIFIC PEEFOEMAlfCE. Inadequacy of Price. — Inadequacy of price, where it is so gross and palpable as of itself to appear evidence of actual fraud, nlay be sufficient to induce the Court to stay the exer- cise of its discretionary power to enforce a specific perform- ance, and leave a party to his remedy at law ; but inadequacy of price, merely, without being such as to prove fraud conclu- sively, is not a good objection to specific performance. 2" A defendant cannot resist the specific performance of a contract on the plea that unfounded expectations of aid in money, etc., from the other party, formed the sole inducement and consideration of his entering into the contract. ^^ TiTTie. — When time is not the essence of the contract, the vendor is bound to convey premises contracted for upon pay- ment of the balance of the purchase money. ^^ Tender. — Under the rule that he who seeks specific perform- ance must be ready and willing to perform, the question of tender arises. The purchaser must not only make a tender of the purchase money, but he should bring it into court. ^* The failure of the vendee to tender performance and demand a deed before filing a bill for the specific performance of a contract for the sale and conveyance of lands, only affects the question of costs. ^* Delivery of deed should be simultaneous with payment of purchase money. ^^ "0 Burtch V. Hogge, Har. Ch. 31; Hunt v. Thorn, 2 Mich. 213; Wallis v Pidge, 4 Id. 570 ; Fry Spec. Perf. ?2 275, 278. 21 Hunt V. Thorn, 2 Mich. 213. As to Building Contracts, see Fry on Spec. Pert, g 48 to 53; Story's Eq.Jur., J 726 to 727; Waterman Spec. Perf. g 27 to 30. 8 s Wallis V. Pidge, supra ; And see note and cases cited in annotated edition. «« Anderson v. White, 27 111. 63 ; Irvin v. Bleakley, 67 Pa. 24. «* Morris v. Hoyt, 11 Mich. 8 ; Daily v. Litchfield, 10 Mich; 29. »5 Allen V Atkinson, 21 Micb. 351. See Waterman on Spec. Perf. ?? 438, 449, for full discussion of Tender. As to Latches : See IngersoU v. Horton, 7 Mich. 405; Smith v. Lawrence, 1 5 Id. 499 ; Hunt v. Thorn, 2 Id. 213 ; Ritson v. Dodge, 33 Id. 463. See collection of cases as to Laches in Hughes' Eq. Drafts- man, 4th Am. ed., Ch. 2, note a. Also Chap. 16, entitled " Lapse of time," \ 456, in Mr. Waterman's valuable work on Spec. Perf. BILLS FOB SPECIFIC PEEFOEMANCE. 637 IMe. — A vendor is bound to give a good title, and the presumption is that the title is good ; but the vendee has a reasonable time for investigation.^* A vendee in a land contract could not be compelled on a> bill for specific perforrti ouce to accept a doubtful title unless the contract so specifie:^.^^ Where a party agrees to convey lands, and can only make title to an undivided interest, a complainant offering to pay a proportionate price, and to accept such undivided interest, may have specific performance therefor, unless there are pecul- iar equitable reasons to the contrary. But the decree in such case must be confined to the undivided interest, and can not be made to require the future conveyance of the remainder.^* Specific performance of a land contract cannot be enforced by the seller unless he puts or offers to put the purchaser in possession. 2' Specific performance of an expired lease may be granted where the parties may have rights requiring its determina- tion, ^o Parol Agreement to Convey Lands ; Part Performance. — Part performance of a parol contract may take the case out of the operation of the Statute of Frauds. But to be enforced it must be certain in all its essential particulars. As a general rule the delivery and taking possession of land pursuant to a parol contract is part performance, and either party may insist on a specific performance of the agree- ment, s' But such possession cannot avail the complainant 2 8 Allenv. Atkinson, 21 Mich. 351; Powell v. Conant, 33 Id. 396; Dwight V. Cutler, 3 Id. 566; Waierman on Spec. Perf., Chap. XIII., 3 409 to 424 ; Fry on Spec. Perf., J 573 to 589; Story's Eq. Jur. 769 6. *' Powell V. Conant, supra. s' Covell V.Cole, 16 Mich. 223; Chambers v. Livermore, 15 Id. 381, and note. «9 McHugh V. Wells, 39 Mich. 175. '0 Switzer v. Gardner, 41 Mich. 164. " Story's Eq. Jur., §759 to 767 ; Waterman on Spec. Perf,, 5? 204 to 206, 289, 270 to 279; Weed v. Terry, Walk. Ch. 501; S. C. 2 Doug. 344; Twiss v. George, 33 Mich. 253; Murphy v. Stever, [Jan'y Term, 1882], 47 Id. ; 2 Comp. L. 1871, 2 4696. 638 BILLS FOE SPECIFIC PEKFOKMANC'E. where it. is sufficiently explained by other relations between the parties, and cannot be unequivocally referred to the agree- ment of purchase.(a) The ground of interference of the Courts to enforce specific performance of parol agreements, is not simply that there is proof of the existence of a parol agreement, but that there is frauds in resisting the completion of an agreement partly performed.^ ^ Where under a parol agreement to convey land the pur- chase money had been paid, possession taken, and valuable improvements made, such acts of part performance were held to be sufficient to take the case out of the statute of frauds, and to entitle the purchaser to a decree for specific perfonn- ance.'* Eedress will not be granted on a parol contract for a part performance capable of full pecuniary measurement.** Part payment of the purchase price is not of itself suffi- cient to warrant a decree for the specific performance of a parol contract for the purchase of lands. (6) TFAere Party Dies lefore Executing Conveyance.— 'W'hm.ev&c any person who is bound by a contract in writing to convey any real estate, shall die before making the conveyance, the person entitled thereto may file a bill to enforce specific per- formance of the contract against his heirs, devisees, or the executor or administrator of the deceased party who made such contract.(c) (a) Jones v. Tyler, 6 Mich. 364; Story's Eq. Jur. ? 762. 8 2 McMurtriev. Bennette,Harr. Ch. 124; Phillips v. Thomson, 1 Johns. Ch. 131. 8s Ramsdell v. Millerd, Harr. Ch. 373; Burtch v. Hogge, lb 31; Bomierv. Caldwell, lb. 65; S. C. 8 Mich. 463; Norris v. Showerman, 2 S^!?- ^nn Murtie V. Bennette, Harr. Ch. 124; But see Moote v. bcriven, 33 Mich. 500. 8 4 Webster v. Gray, 37 Mich. 37. (b) Scott V. Bush, 26 Mich. 418. Whether full payment would take the case ""^ "f Hi'^f"'' ^c^^f'' Rhodes y. Rhodes, 3 Sandf. Ch.,279 ; Parker v. Wells 6 Whart 153 ; S tes y. Keller, 6 Ohio, 483; Hatcher y. Hatcher, 1 McMul. Ch. 311; Johnston y. Clancy. 4 Blackf. 94. (c) 2 Comp. L. 1871, § 4536; House y. Dexter, 9 Mich. 246. BILLS FOE SPECIFIC PEEFOEMANCE. 639 The Court is required to hear and determine every such case brought in said court, according to the course of proceedings in chancery, and shall make such decree therein as justice and equity shall require.(a) If it shall appear that the complainant is entitled to have a conveyance, the Court may authorize and require the execu- tor or administrator of the deceased party to convey the estate in like manner as the deceased party might, and ought to have done if living ; and if the heirs or devisees of such deceased person, or any of them, shall be within this State, and compe- tent to act, the Court may require them, or either of them, instead of the executor or administrator, to convey the estate in the manner before mentioned, or may require them, or either of them, to join in such conveyance with the executor or administrator. (6) Mffect of Conveyance and Decree. — Every conveyance made in pursuance of such decree will be effectual to pass the estate contracted for, as fully as if the contracting party himself was still living, and then executed the conveyance.(c) A copy of such decree duly certified by the Eegister of said court, and recorded in the county where the land lies, will give the person entitled to such conveyance, a right to the posses- sion of the lands contracted for, and to hold the same according to the terms of the intended conveyance, in like manner as if they had been conveyed in pursuance of the decree.Cdl) The recording of any decree as provided in the preceding section, shall not prevent the Court making such decree from enforcing the same by any proper process, according to the course of the proceedings therein.(e) If the person to whom the conveyance was to be made, shall die before the commencement of such proceedings, or [a] 2 Comp. L. 1871, | 4537. (*) 2 Comp. L. 1871, ? 4538. (c) 2 Comp. L. 1871. ? 4539. (d) 2'Comp. L. 1871, I 4540. (e) 2 Comp. L. 1871, ? 4541, i 640 BILLS FOB SPECIFIC PEKPOEMANCE. before the conveyance is completed, the party entitled to the estate, or the executor or administrator of such deceased per- son may commence such proceedings or may prosecute the same if already commenced.(a) Defective Conveyance. — Where any instrument intended to operate as a conveyance of real estate to an individual or any religious or benevolent society or corporation, is inoperative by reason of any defect in any statutory requisite, it may operate as an agreement for a lawful conveyance, and may be enforced specifically by a suit in equity subject to the rights of subsequent purchasers in good faith.(&) SECTION III. PAKTIES. All persons materially interested in the subject of the suit should be made parties, either ascomplainant 05 defendant, in order to prevent a multiplicity of suits, and that there may be a complete and final decree between the parties interested. This rule is restricted to parties whose interests are involved in the issue, and to be affected by the decree. And the relief granted will always be so modified as not to affect the interests of others.^ ^ {a) 2 Comp. L. 1871, § 4542; House v. Dexter, 9 Mich. 246; Daily v. Litchfield, 10 Id. 29; Morris v. Hoyt, 11 Id. 9; Stickney v. Pamienter, 35 Id. 237. {d) 2 Comp. L. 1871, § 4253; as amended by Laws of 1873, p. 240; Brown V. McCormick, 28 Mich. 215 ; Healey v. Worth, 35 id. 166; = = Story's Eq. PI. ? 172 to 177 ; Fry on Specif. Perf. g 79, note 1, and numerous cases cited; Waterman Specif. Perf. § 50,87, and cases cited; Burpee v. Smith, Walk. Ch. 327 ; House v. Dexter, 9 Mich. 246 ; Daily v. Litchfield, 10 Id. 29 ; Morris v. Hoyt, Hid. 8, Woodward v. Clark, 15 Id. 104; Willard V.Taylor, 8 Wall. 557 ; Gibbs v. Blackwell, 37 111. 191. /« cases of conflicting interests : Hanchett v. McQueen, 32 Mich. 22. BI1.LS FOE SPECIFIO PEEFOEWLANOE. 641 The wife is not a proper party where she has not released her dower.* ^ A stranger to the contract cannot sue upon it.*^ If either of the parties die before completion, the contract may be enforced against the personal representatives of the deceased, but the heirs or devisees should also be made par- ties.*' The assignee of a contract may enforce specific perform- ance, making his assignor a party.*' When complainant has sold the premises described in the contract, the assignee must be made a party.*" Infants. — Infants can neither sue nor be sued for a specific performance of a contract.(a) Though they may affirm the contract on becoming of age.(6) SECTION IV. FEAME OF BILL. To entitle a complainant to a decree for specific perform- ance, he must show afBrmatively by his bill that he is entitled to relief. Great accuracy of averment, and strict correspond- ing proof are required. »« Richmond V. Robinson, 12 Mich. 193. " Fry on Spec. Perf. § 102; Story's Eq. PI, §3 160, 172, 177; Calvert on Parties, Ch. 3, § 3 ; Cooper Eq. PI. 65. " Fry on Spec. Perf.^ 115 to 122; Story's Eq. PI. ?? 177, 177a. "' Proctor v. Farnam, 5 Paige, 614. *" Brewer V. Dodge, 28 Mich. 359. {a) Fry on Spec. Perf. I 287 ; Waterman on Spec. Perf. H 55, 62, 103, 123, 196. {b) Carroll v. Potter, 23 Mich. 377, 81 642 BILLS FOE SPECIFIC PEEFOEMANCE. If the agreement be in writing, the contract should be des- cribed according to its terms. If by parol, the specific facts which will take the case out of the statute of frauds must be alleged and proven in the clearest manner.* '■ The complainant must also allege by specific averment that he has performed, or been ready and willing to perform all essential terms of the contract on his part to be then performed, and secondly, that he is ready and willing to do all matters and things on his part thereafter to be done. A default on his part in either of these respects, furnishes a ground of defense.*^ The land should be described with accuracy, that the Court may be able to decree a conveyance.** The bill should contain allegations of facts, and not mere recitals of circumstantial evidence, and should show the theory on which complainant intends to rely. But where a bill mak- ing out a strong case of fraud was dismissed as improperly framed for specific performance, the decree below was so modi- fied as to make such dismissal without prejudice.** The bill may be so framed as to obtain specific performance or cancellation of the contract,** and a prayer that a mistake in the description of premises may be joined to the prayer for specific performance.*^ Where there are conflicting interests set up by a vendee in a land contract, and his wife, and one to whom such vendee has assigned in trust for creditors, it is competent for the ven- *i Bomier v. Caldwell, 8 Mich. 463; Wilson v. Wilson, 6 Id. 9. Daily v. Litchfield, 10 Id. 29; Munsell v. Lorce, 21 Id. 491 ; Wright v. Wright, 31 Id. 380; Hanchett v. McQueen, 32 Id. 22; McMuririe v. Bennette, Harr. Ch. 124 ; Ramsdellv. Willard, lb. 373; Caswell v. Gibbs, 33 Mich. 331; Twiss v. George, lb. 253 ; McClintock v. Laing, 22 Id. 212 ; Brown v. Brown, [Jan'y Term, 1882], 47 Id.. " Fry on Spec. Perf. g§ 608, 116. *8 Gray v. Davis, 3 J. J. Maish. 381. 44 Wilson V. Eggleston,27 Mich. 257. 4B Mills V. Metcalf, 1 A. K. Marsh. 477. 4» Youell V. Allen, 18 Mich. 107; Climer v. Hovey. 15 Id. 18'; Fry on Spec. Perf. J 514 to 525 ; Waterman on Spec. Perf. J 348 to 388. BILLS FOE SPECIFIC PEEFOEMANOE. 643 dor, in his bill for specific performance, to ask to have the respective rights of these conflicting claimants determined, for this is necessary to the determination as to whom convey- ances should be made, and on what terms ; and the bill in such case, where there is no conflict concerning the complainant's rights or duties, resembles somewhat a bill of interpleader, and rests on similar equities.* ' On a bill for the speciflc performance of a parol contract for the conveyance of lands, the contract must be proved in the clearest manner, and must be substantially the same set forth in the bill before a decree will be granted.** Defenses. — Where defendant relies upon special defenses, he should set them forth in his answer.*^ Incapacity to execute a legal contract will be a defense to a bill for speciflc performance. ^^ Also a different contract may be alleged; The statute of frauds ; Defect in plaintiff's title; Uncertainty of the contract ; Unfairness ; Inadequacy of con- sideration; Want of mutuality; Illegality of the contract; Misrepresentation of material facts. ^^ •«' Hanchett v. McQueen, 32 Mich. 22. *8'Story'sEq. Jur. ? 767; Wilson v. Wilson, 6 Mich. 8; Wales v. Newbould, 9 Id. 45; Peclihamv. Buiifam, 11 Id. 529 ; Dunn v. Dunn, lb 284 ; Wurcherer V. Hewitt, 10 Id. 453 ; Covell v. Cole, 16 Id. 223; Munsell v. Green, 21 Id. 491 ; Harwood v. Underwood, 28 Id. 427 ; Mundy v. Foster, 31 Id. 313 ; Ford v. Loo- mis, 33 Id. 121 ; Ritson v. Dodge. lb. 463 ; Stickney v. Parmenter, 35 Id. 237 ; Boyle V. Laird, 2 Wis. 431 ; Taylor v. Merrill, 55 111. 52 ; Tieraan v. Granger, 65 Id. 351. Proof held not sufficient, see Wright v. Wright, 31 Mich. 380; Blanchard v. D., L. & L. M. R. R. Co. Id. 43; McNeil v. Magee, 5 Mason, 244; Pigg v. Corder, 12 Leigh, 69. 4» Daily V. Litchfield, 10 Mich. 29. 6" Fry on Spec. Per. \ 154. ° ' Fry on Spec. Per. see different heads. 644 BILLS FOE SPECIFIC PEEFOESIANCE. SECTION V. DECEEE. As a general rule if it appears from the pleadings and proofs that there is no question as to the title to the premises in question, the Court will make a final decree at the hearing, otherwise it will order a reference to the proper ofQcerto examine and report whether the vendor can make title, (a) A party in default in his payments on a land contract can- not, as a matter of right, discharge himself from all responsi- bility by tendering or- paying simple interest, and become ' thereby entitled to a deed, especially where the other party has declared the contract forfeited for the default; a court of equity can require compound interest in such cases if jus- tice demands it. And it is not certain that specific perform- ance should be compelled as a matter of law unless the other party has been also in default, ^'^ As a general rule specific performance wiU not be decreed unless the whole contract can be executed.^* Jurisdiction. — An objection to a bill for specific perform- ance, that it fails to aver the value of the lands to exceed one hundred dollars, is not sustained where it appears that com- plainants paid more than that sum.^* When specific performance is decreed in favor of one who is still owing something on the contract, he should be ordered to bring the amount into court for the party entitled to if (a) 2 Dan. Ch. Pr. Ch. 26, p. 987, and Ch. 29, p. 1215; Puterbaugh's Eq. PI. 334. »8 Richards v. White, 44 Mich. 622. »» Fry Spec. Perf. 329 ; ^s to form of Decree for Spec. Perf. in the U. 5. Court, see U. S. Eq. Rule, 8. "* Raymond v. Shawboose, 34 Mich. 142. " Stevenson v. Jackson, 40 Mich. 702. BILLS FOE SPECIFIC PEEFOEMAI^CE. 645 When vendee of land sells to a third person by contract, the vendor has no right to convey to such third person, and if there is a balance due, the latter will be required to re-convey to his vendor.^* Proceedings in chancery resulting in a decree for specific performance can be shown in an action at law to meet evidence of a contract. '^ Bower and Homestead Interest. — Equity will not decree the specific performance by a husband of his agreementto procure his wife's signature in the conveyance of real estate; ^* though vendee may waive that part of the contract, (a) The rule is the same as to wife's homestead interest.'^ A land contract signed by the husband alone is valid as to everything but the homestead. ^ " In a case where the value of the property, which includes a homestead, and which the husband contracted to convey, exceeds the maximum allowed as a homestead, and the prem- ises are also subject to the contingent dower of the wife, the adjustment of compensation, together with a decree for a par- tial performance, would be so diflcult that it ought not to be attempted. 8^ U. S. Courts. — ^The equity jurisdiction of the United States Courts is derived from the Constitution and Acts of Congress, and their power and rules of decisions are the same in all the States. (6) " Bird V. Hall, 30 Mich. 374. »' Haven v. Beidler Mnf, Co., 40 Mich. 286. »» Weed V. Terry, Walk. Ch. 501 ; S. C, 2 Doug. 344 ; Buchoz v. Walker, 19 Mich. 224; Richmond v. Robinson, 12 Id. 195 ; Daily v. Litchfield, 10 Id. 29. («) Waterman on Spec. Perf. § 104. 6» Phillips V. Stauch, 20 Mich. 369; Ring v. Burt, 17 Id. 465. '" Stevenson v. Jackson, 40 Mich. 702. «i Phillips V. Stauch, 20 Mich. 369. And see Amphlett v. Hibbard, 29 Id. 298; Wallacefv. Harris, 32 Id. 380 ; Smith v. Rumsey, 33 Id. 183. (b) Noonan v. Lee, 2 Black, 499. Miscellanemis cases : see Hawley v. Jelly, 25 Id. 94 ; Au Gres Boom. Co. v. Whitney, Id. 42 ; Stickney v. Parmenter, 35 Mich. 237 ; Raymond v. Sharboos, 34 Id. 142; Farwell v. Johnson, 34 Id. 242 ; Rogers v. Odell 36 Id. 411 ; Berry V, Whitney, 40 M. 65 ; Nims v. Nims, lb. 316. CHAPTEE LII. SOME QUESTIONS OF PRACTICE DECIDED AT THE APEIL TEEM, 1882, TOO LATE EOE THE TEXT. Voluntary Dissolution of Corporations; Appeal — "So appeal lies to review the proceedings had upon a petition for the vol- untary dissolution of a corporation, [under Ch. 207, Comp. L. 1871,] nor from the final decree rendered in such proceedings.' [This case furnishes a full discussion of the subject as appli- cable to this State.] Where a bill is filed by stockholders for the benefit of the corporation, the bill should state any reasons that exist for omitting to join aU the stockholders as complainants in the bill." Charitahle Uses. — ^In this State the statute of charitable uses does not operate, and all trusts must be governed by the gen- eral rules applicable to trusts of any kind. Municipal corpor- ations may take trusts which are for public purposes, and are left to their discretion, but courts of equity cannot frame schemes for imperfect charters, and if the municipality require further powers as to the use of means, they must come from the Legislature and not from Courts.^ Mn Eccles, 1 S. & S. 512 ; 1 Dan. Ch. Pr. 4 Am, ed. §§ 686. to, 69^7, » Lyon V. Brunson, [April Term, 1882,] 48 Mich. i" Duncomb v. Richard. [June Term, 1881], 46 Mich. 11 Gibbons v. Dunn, [June Term, 1881], 46 Mich. 13 Henderson, V. Sherma5, [Jan'y Term, 1882], 47 Mich, 1 « Dickinson v. Seaver, 44 Mich. 624 ; Brush v. Sweet, 38 Id. 574, J-4 Walton V. Hollywood, [Jan'y Term, 188^], 47 Mich, (o) C3i. Rule 19, SOME QUESTIONS OP PEAOTICE. 649 Practice. — ^Where the objection to an equitable remedy is one that must be passed upon at the final hearing, after all the evidence is in, it will not be feyored.* ' Settling Chancery Gases Heard in Open Court. — Where testi- mony is taken in open court, and the Judge before whom the case was tried, goes out of office before the expiration of the time for settling such case, it may be settled from the steno- grapher's minutes in suits where there is an official steno- grapher, under Act No. 8, Laws 1879, p. 5.^^ Interpleading. — Interpleading cannot be ordered unless the claims threatening the complainant negative each other. If one cannot be legally enforced without implying the other's invalidity, there is nothing to be settled by interpleading, i' Foreclosure: Litigated TiMes. — ^Foreclosure is not a proceeding in which to litigate the adverse and paramount title of a defendant who claims under the foreclosure of a prior mort- gage, from which the complainant does not seek to redeem.'* Specific Performance — When Granted. — For full discussion, seeEustv. Conrad, [January Term, 1882,] 47 Mich. Divorce : United States Courts. — The Federal Courts have no jurisdiction upon the subject of divorce, or for the allowance of alimony, either as an original proceeding in chancery, or as an incident to a divorce.' ^ But they have power to enforce a Decree for Alimony made by a state Court. ^^ »6 Wyckoff V. Vic. Sew. Mach. Co., 43 Mich. 309. " Johnson v. Johnson, [April Term, 1882,] 48 Mich. »' Moore v. Bamheisel, 48 Mich. 500. i» Bell V. Pate, [January Term, 1882,] 47 Mich. (Review of cases.) " Barber v. Barber, 21 How. 582. 2» Barber v. Barber, Supra; McGowan v. Caldwell. 1 Cranch C. C. 481; Cheever V. Wilson, 9 Wall. 108. 82 650 SOME QUESTIONS OP PEACTIOE. Congress, however, may legislate on the sabject ■within the Territories, and upon marriage within the Territories, and when celebrated before Consular of&cers.^* " 1 Bishop, M. & D., U 86 to 88, 398 ; 2 Kent. Com. Ch. 27, § 2, p. 81 , U. S. Rev. Slat, of 1873, g 4082 ; Thomdike v. Thomdike, 1 Wash. T. 198. See Rapaljes Fed. Ref. Dig., p. 290, Title " Divorce." RULES OF THE CIRCUIT COURTS IN CHANCERY Adopted by the Sxjpbeme Cotiet, ajsd ExiSTrtiTG January, 1882. RULES OF THE CIRCUIT COURTS, IN CHANCERY. Agents, their Appointment and List. Rule 1. 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 practicing solicitors or any other person specially authorized by the Court, may be such agents ; but the agent must have an office or a regular and known place of busi- ness within two miles of the register's office, 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 such agents, with the names and residence of the solicitors appoint- ing them. Service on Agent, or by Mail — Notice of Filing Papers — Notice not Nec- essary when Defendant has not Appeared. Rule 2. When the solicitors for adverse parties do not reside in the same city, village or township, service of papers contemplated by these rules may be 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 pleadings shall be given to the adverse party, except when otherwise provided by these rules, within the time Hmited for filing the same. But no service of notice in the ordinary proceedings in a cause shall be necessary to be made on a defendant who has not appeared therein. — As Amended October Zfi, 1874. Double Time when Service on Agent — How Papers Served on Solicitors and Agents. RU1.E 3;. When the service is on an agent, or by putting in the postoffice for want of an agent, it must be double the time of service which would be requisite if the service v/as on the solicitor in person. And if the solicitor resides more 653 654 EtJLES OP THE CIKCUIT COTJETS. 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 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 serv ice therein, then by leaving the same at the residence of the solicitor or agent, with some person of suitable age and discretion. Address of Bills and Petitions — Caption of Decrees and Orders. Rule 4. All bills and petitions hereinafter to be filed in any of the circuit courts, shall be addressed : " To the Circuit Court for the County of , in Chancery ;" and the caption of decrees shall be as follows, viz : " State of Michigan, the Circuit Court for the County of , in Chancery. At a session of said Court, held at , on the day of , in the year one thousand eight hundred and . "Present — Hon. , " Circuit Judge." The caption of orders made by circuit court commissioners shall be as follows : "State of Michigan, Judicial Circuit, in Chancery. Suit pending in the Circuit Court for the County of , in Chancery; at , Dn the day of , A. D. 18~. "It is ordered," etc. Motions to be Made on Day for which Noticed— Continuance of Motions. Rule 5. In all cases, motions shall be made and petitions presented on the day for which they are noticed, if the party has an opportunity to be heard on that day, unless the court (or circuit court commissioner, in a matter pendmg before him) shall otherwise direct. And if there is not sufficient time to finish the business noticed for any day it may be continued from day to day until it is completed ; or it may be adjourned to some subsequent day. And motions made for a day in term, and which cannot be heard on the day for which they are noticed, shall stand continued from day to day without any special continuance. EULES OF THE CIRCUIT COtTETS. 655 Security for Costs by Non-Residents — Residents may be Bequlred to Give. Rule 6. In all cases where the complainant or complainants are not resi- dents of this State, before process shall issue, a bond in the penal sum of one hundred dollars shall be filed with the register, to be approved of by him, con- ditioned to pay all such costs as shall be decreed against the complainant in such case ; and the court or a circuit court commissioner may, upon motion, upon sufficient cause shown, require a new bond to be filed, in the same or an additional amount ; and may also require security where complainants are resi- dents of this State, if the justice of the case demand it. By Whom Bills May be Verified. Rule 7. Sworn bills may be verified by the oath of the complainant, or in case of his absence from the Stale, or other sufficient cause shown, by the oath of his agent, attorney or solicitor. Manner of Verifying Bills, etc. Rule 8. In bills, answers and petitions which are to be verified by the Oath of the party, the several matters stated, charged, averred, admitted or denied, shall be stated positively, or upon information or belief only, according to the fact. The oith administered to the party shall, be, in substance, that he has read 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 to be on his information or belief, and as to those matters he believes it to be true ; and the substance of the oath shall be stated in the jurat. Return Day of Process — Further Process. Rule 9. All process, unless otherwise directed, shall be made returnable on a day certain (except Sunday) either in vacation or in term, not less than ten days from the issuing thereof ; and if process is not executed 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. Subpoena — How Served. Rule 10. The names of all the defendants in a cause shall be inserted in the subpoena. It may be served by delivering a copy of the writ, subscribed by the complainant, his solicitor, or the officer or person serving the same^ 666 Euriss of the ctrRouiT couhts. and inscribed " copy," -and showing the original, under seal of the court Bt the time, of such delivery to the defendant. The service may be on or before the return day mentioned in the subpcena. Proceedings on Return of Subpoena Served— Appearance and Answer by Defendant, Rule 11. Upon the return of the subpoena served, as directed in the preceding rule, the defendant shall cause his appearance to be entered in twenty days from the return day of said writ, and if he does not require a copy of the bill as hereinafter provided, 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 shall be served within the time limited for filing the same. Attachment against Defendant not Answering. Rule 12. When the subpoena has been personally served, and the defend- ant shall fail to appear and plead, answer or demur, within the time limited for the same, the complainant may, upon filing an affidavit that a discovery as to the matters charged in the bill is necessary, and service thereof with notice, move the Court for an attachment against such defendant or defendants. Proceedings on such Attachment. Rule 13. 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 a,nswer, and pay the costs incurred by his contempt instanter, or within such time as the Court shall appoint, or be committed until he complies. Order that Complainant give Copy of Bill — Bill to be dismissed if Copy not Served. Rule 14. When the defendant has appeared, he may have an order, of course, that the complainant deliver a copy of the bill to the defendant or his solicitor in fifteen days, and if such a copy is not delivered within fifteen days after the service of notice of such order, or within such further time as may be allowed for that purpose, the defendant, on filing an affidavit of the service of such notice KULES OF THE CIECUIT UOUKTS. 657 and that no copy of the bill has been served, may have a decree dismissing the suit, with costs, for want of prosecution. Complainant may Proceed Ex-parte on Bill taken as Confessed unless Defendant has Appeared. Rule 15. When a bill has been taken pro confeiso against a defendant, unless he may have entered his appearance, it shall not be necessary in any fur- ther proceeding in a cause for the complainant to serve such defendant with any of the notices contemplated by any of the rules of practice of this court for any object or purpose whatever, but he rhay proceed ex parte. Proceedings against Absent or Concealed Defendants. Rule 16. The order to take the bill as confessed against an absent or con- cealed defendant, and for a reference under the provisions of chapter one hundred and fifteen of the Compiled Laws, {Ch. ijd, Comp. L. i8ji), may be entered of course, on filing the proof of publication or notice, and an affidavit that the defend- ant has not appeared. But the order requiring the defendant to appear, and des ignating the paper in which it shall" be published, or a direction to the commis- sioner to receive the testimony of the complainant as evidence on the reference, can only be obtained by a special application. Exceptions to Answer not to Prevent Dissolution of Injunction, Etc. Rule 17. Exceptions to an answer shall not prevent the dissolution of an injunction or the discharge of a ne exeat; but upon every application for such dis- solution or discharge, made upon answer before exceptions are filed, or before the validity of exceptions filed has been determined, the sufficiency of the answer in all points material to the allowance of such application shall be considered in the decision thereof. Waiver of Oath to Answer — Complainant not to Except for Insuf&ciency in such Case — Facts Stated in Answer Admitted if not Replied to. Rule 18. If the complainant waives the necessity of the answer being made on 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-ufnciency ; but all material allegations in the bill, which are not answered and admitted, may be proved by him in the s^me manner as if they were distinctly put in issue by the 83 658 BULBS OF THE CIRCUIT COURTS. answer ; and if no replication is filed, the matters of defense set up in the defend- ant's answer will, on the hearing, be considered as admitted by the complainant, although the answer is not on oath. Answers, etc., Before Whom May be Sworn to. Rule 19. The plea or answer of the defendant may be sworn to before any officer authorized by the laws of this state to administer oaths or take affidavits. It may also be sworn to before any judge of any court of record in the United States ; but if sworn to before such judge in any other state or territory in the Uni- ted 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 plea or answer may be sworn to in any foreign country before any minister or other diplomatic agent or consul of the United States, or any notary public; but the certificate of such notary shall be made under his notarial seal. Defendant must Answer Original Bill before Entitled to Answer to Cross.Bill. Rule 20. When a cross-bill is filed, the complainants therein who are defendants in the original bill shall put in and perfect their answer to the original bill before they shall be entitled to an order to compel an answer to the cross- bill, unless the Court shall otherwise specially direct. Amendments to Bill, When of Course — Not of Course on Injunction Bill — Register not to Permit Amendments unless Authorized — How Amendments Made and Served. Rule 21. 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 may also amend of course after answer, at any time before he replies thereto, until the time for replying expires, and without costs if a new or further answer is not thereby rendered 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 amend- ments are merely in addition to and not inconsistent with what is contained in the original bill ; such amendments being verified by oath, as the bill is required to be verified. But no amendment of an injunction bill shall be allowed without a special 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 RULES OF THE CIECUIT COXJBTS. 659 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 engross- ment of the bill with the register where the original bill is filed, or furnish him with an engrossed copy of the amendments, containing the proper references to the folios and line in the original bill on file, where such amendments are to be inserted or made. But no amendment shall be considered as made until the same is served upon the adverse party, if he has appeared in the cause. Amendments after Demurrer. Rule 22. If the defendant demurs to the bill for want of parties, or for any other defect which does not go to the equity of the whole bill, the complain- ant may amend of course, on payment of costs, at any time before the demurrer is noticed for argument, or within ten days after receiving a copy of the demurrer; 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. Amendments After Insufficient Answer — Amendments on Plea or De- murrer Overruled. 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 of the exceptions, or after con- firmation of the commissioner's report, if the defendant does not submit to answer any of the exceptions; and the defendant shall answer the amendment and excep- tions together. If a plea or demurrer to the bill be overruled, the complainant mav, witliin 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 defendant shall have the same time to answer, after such amendment, as he originally had. But no amendments, of course, of injunction bills, are to be allowed under this or the preceding rule, nor any amendments which are inconsistent with the original sworn bill. Common and Special Orders — How Orders to be Entered. Rule 24. Orders to which a party, by the rules and practice of the court, is entitled of course without showing special cause, shall be denominated com- mon orders ; and orders made on special application to the court, or circuit court commissioner, shall be denominated special orders. All common orders and 660 RrLES OF THE CIECUIT COUETS. orders by consent of the parties, such consent being in writing and signed by such parties or their solicitors and filed, may be entered with the register in the com- mon rule book kept in his oiEce, at the instance of the party or his solicitor, at the peril of the party taking such order; and the day on which the order is made shall be noted in the entry thereof, and all special orders made by the spebial direction of the Court or Circuit Court Commissioner, shall be entered in the rec- ord of the proceedings of the court, as heretofore has been usual. Either Party may Notice Plea or Demurrer for Argument — Issue on Plea after Allowance. Rule 25. When the defendant 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 the bill within that time, either party may notice the plea or demurrer for argument, at the next or any subsequent term. If the plea is allowed, the complainant may, within ten days after notice of such allowance, take issue on the plea, upon payment of the costs of hearing thereon. Bill may be Taken as Confessed, if Frivolous Plea or Demurrer is Put in. Answer after Plea or Demurrer Overruled. Rule 26. If a plea or demurrer is overruled as frivolous, or a plea upon issue thereon is found to be untrue, the complainant may, unless the Court other- wise direct, have an order to take the bill as confessed, or he may compel the defendant to answer the bill at his election. In all other cases, if the plea or demurrer be overruled, neither a further plea nor demurrer shall be received ; and the defendant shall answer the bill and pay the costs of the hearing, within twenty days after notice of the order overruling the plea or demurrer, or such other time as may be prescribed by the Court in such order. If he fails to put in his answer and pay the costs within the time prescribed, the bill may be taken as confessed, and the matter thereof decreed accordingly; or the complainant may have an attachment to compel an answer. When Complainant may Except to Answer — When Answer Deemed Sufficient — Defendant may Submit to Answer Exceptions. Rule 27. 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 ansv/cv, 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. ETJLES OF THE CmCXJIT COUETS. 661 If the complainant excepts to the answer for insufficiency, the defendant may, within eight days after service of a copy of the exceptions, give written notice of his submission to answer any or all of such exceptions ; and he shall be liable for the costs of the exceptions which he submits to answer. Complainant to Refer Exceptions in Ten Days. Rule 28. 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 ^n order of course to refer the exceptions not submitted to by the defendant to a circuit court commissioner. If the excep- tions not submitted to are not referred, and notice of such reference given within the times specified, they shall be considered as abandoned, and the answer a? to such exceptions shall be deemed sufficient. Reference of Second or Third Ansvtrer for Insufficiency. Rule 29. If a complainant refers a second or third answer for insuffi- ciency on the old exceptions, the particular exceptions to which he requires a fur- ther 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 put hi, such answer shall be deemed sufficient. Exceptions for Scandal or Impertinence. KuLE 30. Exceptions to any pleading or other matter pending before the Court for scandal and impertinence, shall be taken in the same manner as excep- tions 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 suffi- cient. When Commissioner's Report on Exceptions to be Obtained. Rule 31. Whenever an answer or other pleading or proceeding is referred for insufficiency, scandal or impertinence, the exceptions 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 reference 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 662 RULES OF THE OIECUIT OOUETS. a satisfactory report ; in which case the exceptions shall be considered as aban- doned, 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 sufficient. Commissioner to Fix Time for Putting in Further Answer. Rule 32. If on a reference of exceptions to an answer, or the reference of a second answer on the old exceptions, the commissioner shall find the answer insufficient, he shall fix a time for putting in a further answer, and specify tlje same in his report. / When Report on Exceptions to become Absolute — Exceptions to Report. Rule 33. The commissioner's report on exceptions shall be delivered to the party obtaining the reference, who shall forthwith file the same in the proper office ; and if he does not except to the report within eight days thereafter, it shall become absolute as against him. But the adverse party shall have eight day.i after service of notice of filing the report to 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 purpose. 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. Order to Expunge Impertinent Matter — Report Disallowing Exceptions for Scandal, etc., to be Final. Rule 34. If the commissioner reports that anything contained in any plead- ing or proceeding is scandalous or impertinent, the parly 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 pay the costs of the 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 adverse party submits to the exceptions, the same order may be obtained on filing the notice of submission. If the commissioner disallows an exception for scandal and imperti- nence, his report shall be final, and no exceptions to the report in that respect shall be allowed ; but it shall not preclude the party, upon the hearing of the cause, or upon the taxation of the general costs in the suit, from insisting that the matter excepted to was in fact impertinent. Order for Further Answer. Rule 35. On exceptions to answer for insufficiency, if all the exceptions are submitted to by the defendant, or a part are submitted to, and the rest aband- EXILES OF THE CIECUIT COTJETS. 663 oned, or are disallowed on reference, 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. Order for Further Answer, after Reference. Rule 36. If, on a reference of exceptions, or the reference of a second answer upon the old exceptions, the answer is found insufficient, and the com- missioner'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. Bill of Costs to be Served before Expiration of Time to Answer — Time to Answer, after Amendments to Answer. Rule 37. In the cases specified in the two preceding rules, the defendant 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 afterwards proceed by execu- tion or attachment to compel payment 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 complainant has amended his bill, so as to require an answer to the amendments as well as the exceptions, the defendant shall have the same time to answer the amendments and exceptions together as he originally had to answer the bill ; and the order to answer shall be varied accordingly. Order Pro Confesso, or for Attachment, or Neglect to Answer. Rule 38. If the defendant does not put in a further answer and pay the costs within the time prescribed, or within such further time as may be allowed 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. Hearing on Exceptions to Commissioner's Report on Exceptions — Costs on Hearing. Rule 39. The argument of exceptions to a commissioner's report on excep- tions shall be heard as a special motion. Either party may notice the same for hearing, and the party excepting to the report shall furnish the necessary papers for the Court; and if he neglect to do so, the report may be confirmed. But if both parties have excepted to the report, each shall furnish copies of his own 664 EULES O]? THE ClECUlT COUiJTS. exceptions, and the party obtaining the reference shall furnish sucfl 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 enti- tled to costs as against the other, unless he succeeds as to the major part of the exceptions to the 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 against the adverse' party, shall not be taxed at a sum exceeding ten dollars. Costs on Exceptions. Rule 40. When exceptions are taken to an answer for insufficiency, or to any pleading or proceeding for scandal or impertinence, the party excepting stall be entitled to the costs of the exceptions which are submitted to, and those which are finally allowed after reference to a commissioner; but neitlier party shall be entitled to costs upon the reference of exceptions, unless he iinally succeeds as to all 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; and then the whole costs to which the exceptant is entitled shall be included in one bill, and the adverse party may off set any costs to which he is entitled. For wrhat Cause Demurrer or Plea Not to be Overruled. RtJLE 41. No demurrer or plea shall be held bad, and overruled upon argument, only because such demurrer or plea shall hot cover so much of the bill as it might by law have extended to. For what Cause Demurrer or Plea Not to be Overruled. Rule 42. No demurrer or plea shall be held bad, and overruled upon argument, only because the answer of the defendant may extend to sdme part of the same matter as may be covered by such demurrer or plea. When Defendant may Decline Answering Part of Bill. Rule 43. A defendant shall be at liberty, by answer, to decline answering any part of the bill from answering which he might have prot.cted himself by demurrer, and he shall be at liberty so to decline, notwithstanding he shall answer other pwts of the bill from which he might hive protected himself by demurrer. EOLES OF THE CIECUIT COUETS. 665 Bills of Revivor and Supplemental Bills. Rule 44. It shall not be necessary, on any bill of revivor or supplemental bill to set forth any of the statements in the original suit, unless the special cir- cumstances of the case require it. When Cause Deemed at Issue— When to Stand on Bill and Ansvirer— Notice of Hearing. Rule 45. Every cause shall be deemed at issue on filing a general replica- tion to the answer, and no special replication shall be filed but by leave on cause shown. If the complainant does not reply to the defendant's answer within twenty days after it is deemed to be sufficient, he shall be precluded from replying, ' and the cause shall stand for hearing on bill and answer, unless further time for replying be granted by the Court, upon cause shown and eitlier party may notice it for hearing as soon as it is in readiness for hearing against the other defend- ants, if any there are. Dismissing Bill for Want of Prosecution. Rule 46. In any suit against several defendants, if the complainant does not use due diligence in prosecuting such suit, any of said defendants may apply to dismiss the bill for want of prosecution, and on such application further time shall not be allowed to complainant, unless on good cause shown for the delay. Order to take Proofs — When Proofs to be Taken and when Closed — If no Order Entered, Case to Stand on Pleadings — Feigned Issues — Examination of Witnesses in Open Court. Rule 47. 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 testimony, may at any time within thirty days after the expiration of the time of obtaining the right to such examination in open court, enter an order of course, and give notice thereof to the opposite party, for the taking 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 take the testimony of his witnesses, upon giving ten days' notice to the opposite party of the names and places of abode of the witnesses to be examined, and of the time and place of such exami- nation, 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 84 666 RULES 0¥ THE CIRCUIT COURTS. 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 trie I 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. When Commission may be Issued to Take Testimony. Rule 48. If a party wishes to examine witnesses residing out of the State, or more than thirty miles from the residence of a circuit court commissioner or when all the circuit court commissioners are interested, living within that distance, as counsel or ot erwise, either party may, at any time after issue is joined and before proofs are closed, as prescribed in the preceding rule, 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 and persons proposed as commissioners, and praying that a commission may be issued to take the exami- nations of such witnesses; and ten days' notice of the application shall be given to the adverse party if he has appeared. If the adverse party does not .ippear and join in ihe commission, or object to the persons named as commissioners, a commission shall be issued agreeably to the prayer of the petition. Adverse Party may join in Commission — When one Commissioner may act alone. Rule 49. If the adverse party wishes to join in commission, he mist, at the time of presenting the petition, furnish the names and residence of the witnesses on his 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 petition is presented, after hearing the alle- gations of the parties, shall designate a suitable person or persons to execute the commission, and issue the same accordingly ; but any i f the commissioners named in the commission may execute the same, in case the others neglect or refuse to join in the execution thereof, or they are from any cause, prevented. Witnesses to be Examined on Interrogatories — Settlement Thereof. Rule 50. Witnesses to be examined out of the state shall be examined on written direct and cross interrogatories, to be allowed by a circuit court commis- sioner and annexed to the commission. Copies of interrogatories proposed shall be served, with notice of an application for the allowance thereof, at least five days before the time fixed for such application, and at the time and place of the RULES OP THE CIECUIT COUETS 667 settlement or such interrogatories, the adverse party shall propose his cross inter- rogatories, unless further time is allowed him for that purpose by the officer set- tling the same. Petition for Special Commission. Rule 51. If it shall be necessary to have a commission to take the exami- nation of witnesses in any case not provi Jed in the preceding rules, the party may present a petition to the circuit judge or circuit court commissioner acting as an injunction master, for that purpose, setting out the facts which entitle him to a special commission, and the usual notice of the apphcation shall be given to the adverse party. Commission — How Executed and Returned. RtTLE 52. To every commission for the examination of witnesses out of the state, a copy of this rule shall be annexed, as instructions to the commissioner on the execution of the commission : 1. Any one of the commissioners may execute the commission. 2. The witness, before he is examined, must take an oath or affirmation, to be administered by the commissioner, that the answers to be given by him to the interrogatories annexed to the commission shall be the truth, the whole truth, and nothing but the truth. 3. 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 the commissioner as follows : '' Examination taken, reduced to writing, and sworn to (or affirmed) this day of , A D. , before me, A. B., Commissioner." 4. Exhibits must be annexed to the deposition of the witness, and be signed by him and the commissioner. 5. The commissioner must subscribe each sheet of the deposition, annex the deposition and exhibits to the commission, and endorse his return on the back of the commission : " The execution of this commission appears in certain schedules hereunto annexed. A. B., Commissioner." 6. The commissioner must enclose the commission, interrogatories, deposi- tions and exhibits, in a packet, and bind it with tape, and set his seal at the sev- eral meetings or crossings of the tape, and direct it " To the Register of the Circuit Court for the county of , in Chancery, at , State of Michi- gan." 7. He must then deposit the commission in the post-office, unless there are written directions on the commission to return the same in another way. 668 RULES OF THE OIECUIT COUETS. Opening and Filing Commission, Rule 53. The register, on the commission being returned, shall open it and endorse thereon the time and manner of receiving it, and then file it. How Depositions Suppressed for Irregularity — Notice to be Given of Filing. Rule 54. No deposition will be suppressed on the hearing of a cause for irregularity or informality in the taking of the same, but the question must be brought before the court on a special motion for that purpose, before the cause is brought to a hearing. Upon receiving any deposition taken within or without this state, on commission or otherwise, the register shall notify the solicitor of the party on whose behalf it was taken, and such solicitor shall notify the oppo- site solicitor, and such motion shall be made within ten days after the solicitor making the same shall have been so notified. How Party may be Examined as a Witness — Objection to Testimony on Hearing. Rule 55. When a party wishes to examine a defendant as a witness against a co-defendant, or against the complainant, he may, at any time within twenty days after he has received or served a notice of the rule to produce witnesses, on filing an affidavit that such defendant is a material witness, and is not interested in a matter to which he is to be examined, have an order of course for the exam- ination of such defendant as a witness, as to any matter in which he is not inter- ested, subject to all just exceptions. And such defendant shall thereupon be examined to such matters, in the same manner as other witnesses ; but the adverse party, at the hearing, may object to the competency of his testimony. Proving Documents at Hearing — When Deeds, etc., may be Read at Hearing without Proof. Rule 56. Documents which are of themselves evidence without further proof shall not be read on the hearing, unless they have been made exhibits bef ire the commissioner ; and no deed or other writing shall be proved at the hearing, except on an order previously obtained after due notice to the adverse party. But where any deed or. other instrument in writing which is duly acknowledged or proved in such manner as to authorize 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 authenticated copy of the record, may in all cases be read upon the hearing of the cause, unless the defendant in his RULES OF THE CIRCUIT COURTS. 669 answer denies the due execution of said deed or instrument, or the existence of such record, either positively or according to his belief. Compelling Attendance of Witnesses before Commissioners. Rule 57. Process of subpoena to compel the attendance of witnesses before a commissioner shall issue of course, and the time and place of attendance shall be specified in the writ ; and such witnesses may be punished if they fail to attend and submit to an examination. But no witness shall be comp-Ued to appear before a commissioner more than forty miles from his place of residence, unless by special order of the court. Commissioner to Return and File Depositions. Rule 58. Within ten days after notice of the order to close the proofs, the commissioner, on being applied to for that purpose by either party, shall cause the depositions and exhibits taken or produced before him to be returned and filed with the register. No copy of any deposition or exhibit shall be read on the hear- ing, unless the original has been returned and filed in the proper office. — As amended April 27, iS'^i. Orders to Enlarge Time to Produce Witnesses. Rule 59. An order to enlarge the time for the examination of witnesses may be granted, on sufficient cause shown, without notice to the adverse party ; but an ex parte order shall not be granted after the time for the examination of witnesses has actually expired, nor shall a second order be granted to the same party, except on the usual notice of the application to the adverse party, and upon such terms as the court may prescribe. Notice of Hearing. Rule 60. After the proofs are closed, either party may notice the cause for hearing 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 in readiness for hearings, on plea or demurrer, bill and answer, pleadings and proofs, exceptions to a commissioner's report, or on the equity reserved, either party may notice the same for hearing, and have the cause entered on the calendar of causes for the term. 670 . EULES OF THE OIECTJIT COXJETS. Time of Notices, etc. — Copies of Papers on Motions to be Served. Rule 61. All notices of hearing, or of special motions, or of the present- ing of petitions, when required, shall 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 to be held; if over fifty and not excetding one hundred, six days' notice shall be given ; and in all other cases at least four days. And a 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 application to the court. Case, and Abbreviation of Pleadings. Rule 62. When a cause is submitted or heard on bill, answer and repli- cation, or on the pleadings and proofs, if the parties do not agree upon a case to be signed by them, containing, with all requisite brevity, a statement of the pleadings and proofs, the complainant shall furnish the court with a case, stating the time of filing the 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 history of the proceedings in the cause ; and containing an abbreviation of the pleadings, not exceeding one-sixth of the number of folios contained in the original pleadings respectively. Hovi^ Calendar to be Made Up. Rule 63. In making up the calendar, 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 answer was 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 hear d on exceptions, or upon the equity reserved in a decretal order, shall be placed in the class to which they belonged before the decretal order or reference, and according to their priority as it then existed ; and causes for rehearing shall be arranged in the same manner. But the court, in the hearing of the calendar causes, may, in its discretion, give a preference to any particular cause, or description of causes, over others in the calendar. And mortgage cases of the fourth class shall be entitled to a prefer- ence over any other causes of the same class, unless the defendant, before the EULES OP THE OIEOUIT OOUETS. 671 cause is heard, shall file with the register an affidavit that he has a good and meritorious defense, and that his answer was not put in for the purpose of delay ; the filing of which affidavit he shall have noted on the calendar. Cause to be Noticed for First Day of Term— Notice to Register. Rule 64, Causes shall be noticed for hearing for the first day of the term. The notice to the register, specifying the class to which the cause belongs, and he time from which it is entitled 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 first 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, may be heard out of its regular order. Papers to be Furnished on Hearing — On a Rehearing. Rule 65, When a cause is heard or submitted on plea or demurrer, or on bill and answer (except in mortgage or partition causes where the complainant's 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 con- tained 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, the court shall be furnished with copies of the pleadings, and of the depositions, if any, and with short abstracts of the exhibits. 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. Upon exceptions to a com- missioner's report, copies of the order of reference, report and exceptions, and of such part of the evidence before the commissioner, and of the pleadings, as are material for the decision of the exceptions, shall be furnished. And in all cases the necessary papers shall be delivered to the court when the hearing of the cause shall commence. By Whom Papers to be Furnished— Points to be Delivered. Rule 66. If the cause is heard or submitted on plea or demurrer, or on exceptions to a commissioner's report or on a rehearing, the necessary papers shall be furnished by the party pleading, demurring or excepting, or who obtained the rehearing. In all other cases the papers shall be furnished by the complain- ant, except that on an original hearing upon plealings and f roofs, each party shall furnish copies of the testimony and abstracts of the exhibits on his part only. And each party shall deliver to the court and to the adverse party a copy of the 672 KULES OF THE CIECTJIT COURTS. points on 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 conceives himself entitled. Papers to be Legibly Written — How: Entitled. Rule 67. All bills, answers, 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 endorse- ment of papers by either party the complainant's name shall be placed first. Default at the Hearing. Rule 68. If the cause is noticed for hearing on the part of the defendant, and the complainant does not appear to argue on his part, or does not furnish the necessary papers, agreeably to the preceding rule, the bill may be dismissed with costs. If noticed on the part of the complainant, and the defendant does not appear at the hearing and furnish the necessary papers on his part, the complain- ant may have such decree as he is entitled to by the defendant's default, accord- ing to the usual course and practice of the court. Manner of Submitting Causes. Rule 69. All submissions shall be in writing, signed by (he necessary par- ties or their solicitors, and shall be delivered to the register with the necessary copies and papers. On special motions and pe itions, as well as in calendar causes, he shall mark the papers and note them in his minutes, as on a hearing ; and he shall not enter the submission until all the necessary copies and papers are furnished, as required by the rules of the court. Proceedings on Order of Reference — Summons and its Service. Rule 70. 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 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 summons shall be served on the adverse party or his solicitor such time, previous to the day appointed for hearing, as the commissioner may deem 'reasonable and direct, taking into consideration the nature of the matier to be examined, and the residence of the parties. But the time of service, unless otherwise 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; RULES OF THE CIECUIT COUETS. 673 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 fifty and not exceeding one hundred miles ; and not less than eight days when he resides more than one hundred miles from the place of hearing. Party Entitled to Prosecute Order of Reference to Proceed in Thirty Days. Rule 71. If the party who is entitled to prosecute such decree or order of reference does not procure and serve such summons within thirty days after the decree or ordei^ is entered, any other party or person interested in the matter of reference, shall be at liberty to apply to the court, by motion or petition, to expe- dite the prosecution of the decree or order; and after the proceedings have been commenced, by the service of a summons to attend before the commissioner, if the party entitled to prosecute such decree or order does not proceed with due diligence, the commissioner shall be at liberty, upon the application of any other person interested, either as a party to the suit, or as coming in to prove his debt, or establish a claim under the decree or order, to commit to him the prosecution of the reference. Proceedings in Commissioner's Office. Rule 72. At the time and place appointed in the summons for hearing the parties, the commissioner shall proceed to regulate, as far as may be, the manner of its execution ; as, for example, to state what parties are entitled to attend future proceedings, to direct the necessary notices, and to point out which of the several proceedings may properly be going on pari passu ; and as to what par- ticular matters interrogatories for the examination of the parties appear to be necessary ; and whether the matters requiring evidence shall be proved by affidavit, or by the examination of witnesses ; and if the commissioner shall think it expedient so to do, he may then, or upon any subsequent attendance, and from time to time, as circumstances may require, fix the time within or at which any proceedings before him shall be had ; and he may proceed de die in diem, or by adjournment from time to time, as he may think proper. Examination of Books, etc., before Commissioner. Rule 73. Where, by any decree, or order of the court, books, papers or writings, are directed to be produced before the commissioner for the purpose of sijch decree or order, it shall be in the discretion of the commissioner to deter- mine what books, papers or writings are to be produced, and when and for how 85 674 KULES OF THE CIECUIT COURTS. long they are to be left in his office ; or, in case he should not deem it necessary that they should be left or deposited in his office, then he may give directions for the inspection thereof by the parties requiring the same, at such time and in such manner as he may deem expedient. When Commissioner may Proceed Ex Parte. Rule 74. Where some, or one, but not all of the parties, do attend the commissioner at the time and place appointe4, the commissioner shall be at liberty to proceed ex parte, if he thinks it expedient so to do, considering the nature of the case ; and if he has proceeded ex. parte, such proceeding shall not in any manner be reviewed by him, unless, upon special application to him for that purpose by the party who was absent, the commissioner shall be satisfied such party was not guilty of willful delay or negligence, and then only upon pay- ment of all costs occasioned b^ his non-attendance ; and such costs to be certified by the commissioner at the time, and paid by the party or his solicitor before he shall be permitted to proceed on the warrant to review ; and every summons to attend before a commissioner shall be considered peremptory. How Commissioner to Take Testimony. Rule 75. The commissi mer shall be at liberty to examine any witness or party, or any creditor or other person coming in to claim before him, either upon written interrogatories or viva voce, or in both modes, as the nature of the case may appear to him to require ; the examination or evidence being taken down at the time by the commissioner, or by his clerk in his presence, and preserved, in order that the same may be used by the court, if necessary. Proceedings of Commissioner on Exceptions — Exceptions to Report Thereon. Rule 76. 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 impertinent, or that any examination of a party before him is insufficient, such party shall 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 to be scandalous or impertinent. And where 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 imperti- nence at the hearing of the cause, or upon any subsequent proceeding founded on the commissioner's report upon the reference, or upon the taxation of the gen- EtJLES OF THE CIECUIT COUETS. 675 eral 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 commis- sioner shall always take into consideration the relevancy or materiality of the statement or question referred to in the exception. On exceptions to the commis- sioner's report, or to his certificate of the sufficiency or insufficiency of the exam- ination, the parties shall be confined to the objections taken before the commis- sioner. How Accounts Taken Before Commissioner. Rule 77. All parties accounting before a commissioner shall bring in their accounts in the form of debtor and creditor ; and any of the other parties who shall not be satisfied with the accounts so brought in, shall be at liberty to examine the accounting party upon interrogatories, as the commissioner may direct. On any reference to take or state an account, the commissioner shall be at liberty to allow interest as shall be just and equitable, without any special direction for that pur- pose, 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. Commissioner may Make Separate Reports. Rule 78. In all matters referred to a commissioner, he shall be at liberty, upon the application of any party interested to make a separate report or reports, from time to time, as he shall deem expedient ; the costs of such separate reports to be in the discretion of the court. And where the commissioner shall make a separate report of debts or legacies, he shall be at liberty to make such certificate as he thinks fit, with respect to the state of assets ; and any person interested shall thereupon be at liberty to apply to the court as he shall be advised. Order to Confirm Report. Rule 79. After the report is filed, either party may have an order of course to confirm the same, unless cause to the contrary thereof be shown in eight days after notice of its being filed ; and if no exceptions are filed and served within that time, the order shall become absolute of course, without further order ; or either party may file exceptions, and have an order of course to confirm the report, so far as the same is not excepted to, and with the like effect. 676 EXJLES OF THE CIECUIT COURTS. EnioUment of Decree — From what Office Process to Issue Thereon. Sale. Rule 80. No process shall be issued, or other proceeding had on any final decree, until the same is duly enrolled. And such process, unless otherwise spe- cially 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 warranted. 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 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 execu- ted by the commissioner. And where any previous decree or decretal order dis- poses 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 in the cause. Manner of Applying for Rehearing. RtjLE 81. A petition for a rehearing shall state the special matter or cause on which such rehearing is applied for, and the particular points in which the decree or order is alleged to be erroneous, but it shall not be necessary to state the proceedings anterior to such decree or order sought to be reversed ; and the facts, if they do not appear from the records of the court, shall be verified by affidavit of the party, or of some other person. It shall also be accompani . d by the certificate of two counsel, that they have examined the case, and that in their opinion the decree or order is erroneous in the particulars mentioned in the peti- tion. And a copy of the petition, with the usual notice of presenting the same, shall be served on the adverse party, but the rehearing shall not be considered as a matter of course in any case. Order to Stay Proceedings and Service Thereof. ^ Rule 82. Where a party is entitled to an order to stay proceedings, or for temporary relief until he has time to give regular notice of a motion, or of present- ing a petition for a rehearing, or for any other purpose, he may make an ex parte application to the court, or judge, or commissioner, acting as injunction master for an order that the adverse party show cause why the motion or the prayer of the petition should not be granted, and to stay proceeding";, or for other temporary relief in the meantime. And the adverse party shall be served with a copy of the order, and of the petition, affidavit or certificate on which it is founded, the same length of time before the day for showing cause as is required in the ordinary RULES OF THE CIECUIT COTJETS. 677 case of special motions, unless the court, or judge, or commissioner, shall specially direct a shorter notice to be given. Deposit on Rehearing. Rule 83. If a rehearing is granted, the petitioner shall lose the benefit thereof, unless he shall, within ten days thereafter, deposit with the register fifty dollars, to answer the costs and damages of the adverse party, if the decree or order shall not be materially varied. Agreements Between Parties to be in Writing. Rule 84. No private agreement or consent between the parties, in respect to the proceedings in a csuse, shall be alleged 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 evi- dence thereof shall be in writing, subscribed by the party against whom it is alleged or suggested, or by his solicitor or counsel. Time on Rules and Orders. Rule 85. All rules to take effect ntsi, 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. Extending Time and Setting Aside Defaults. Rule 86. The court, or commissioner acting as injunction master, upon special cause shown, may extend the time for putting in or serving any pleading or exceptions, or for any other proceeding which is required by the rules of the courtto be done within a limited time ; and the court may set aside any order or decree, obtained by default or otherwise, upon such terms as may be deemed just and proper. Account of Money Deposited, How Kept. Rule 87. The accounts of the register with the banks in which the moneys are directed to be deposited, shall be kept in such a manner that in the 678 EULES OF THE OIKCUIT COUETS. cash books of the banks, and in the bank books of the register, it shall appear in what particular suit, or on what account, the several itbms of money credited or charged were deposited or paid out. Form of Orders for Payment of Moneys out of Court. Rule 88. Orders upon the banks for the payment of moneys out of court shall be made payable to the order of the person entitled thereto, or of his solici- tor or his attorney, duly authorized, and shall specify in what particular suit, or on what account, the money is to be paid out, and the time when the decree or order authorizing such payment was made. Taxing Costs — Retaxation. Rule 89. The circuit court commissioners and registers of each circuit court shall have power to tax costs, and where costs have been taxed, upon hear- ing of the parties, an application for a retaxation may be made directly to the court. Bill of Costs to Specify Items — Affidavit to be Annexed— Notice of Taxation — What Allowed. Rule 90. 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 solicitor, or by or on behalf of any ofHcer of this court who prosecutes and defends in person, the sev- eral items of disbursements and of the fees of officers of the court, shall be par- ticularly specified therein, and not charged in gross, or they shall be disallowed on taxation ; and when witnesses' fees are charged, the names of the witnesses shall be specified, and the number of days' travel and attendance of each. The affi- davit of the solicitor, or the officer who prosecutes or defends in person, shall also be annexed to the bill before it is taxed, stating, according to the best of his knowledge and belief, that the several disbursements charged in the bill have been actually and necessarily incurred or paid ; and before any officer or party shall be entitled to demand payment thereof, such costs or fees shall be taxed by a taxing officer of this court ; but no officer whatever shall tax his own costs or fees ; and the same notice of taxation shall be given to the party to be charged therewith, if such party has appeared in the cause or proceedings, as is required by the rules of this court. The following costs shall be allowed to the prevailing parties, viz : In all cases determined by final decree on pleadings and proofs, thirty dollars. In all cases determined by final decree on bill and answer, plea or demurrer, twenty dollars. In all cases where decree is taken on ihe bill taken as confessed, fifteen dollars. Upon all special motions, such siun, not exceeding RULES OF THE CIKOUIT COUETS. 679 ten dollars, as the court shall deem just. When a bill is dismissed for default at the hearing, or for want of prosecution, or voluntarily by the complainant, the defendant shall be entitled to the same costs as if the cause had been heard ; and where the bill is dismissed upon payment of the claim, or performance of the relief sought, before decree, the complainant shall be entitled to the same costs as if the case had been heard. If such payment or performance is made before plea, demurrer or answer, the costs shall be as on bill taken ^>-« confesso; if after any pleading is put in and before proofs, they shall be as on a hearing upon plead- ings ; and if proofs are taken the costs shall be as on a hearing upon pleadings and proofs. In divorce cases the costs shall be under the direction of the court. Where tliere are several defendants entitled to costs, the costs granted by this rule shall be apportioned among them as the court may deem proper. — As amended October 23, 1858. How Rights of Subsequent Purchasers, etc.. Set out in Bill. Rule 91. In a bill for foreclosure or satisfaction of a mortgage, it shall not be necessary to set out at large the rights and interests of the several defendants who are purchasers of, or who have liens on, the equity of redemption in the mortgaged premises, subsequent to the registry or recording of complainant's mort- gage, and who claim no right in opposition thereto ; but it shall be sufficient for the complainant, after setting out his own right and interest in the premises to state generally that such defendants have or claim some interest in the premise^ as subsequent purchasers or encumbrancers, or otherwise. Reference to Compute Amount Due on Mortgage, etc. — Affidavit of Regularity. Rule 92. If a bill to foreclose a mortgage is taken as confessed, or the right of the complainant; as stated in his bill, is admitted by the answer, he may have an order of course, referring it to a commissioner to compute the amount due to the complainant, and to such of the 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 com- plainant may have a similar order of course, referring it to commissioner to take proof of the facts and circumstances stated in the complainant's bill, and to compute the amount due on the mortgage, preparatory to the hearing of the cause. But every such cause shall be regularly brought to hearing at term after the coming in of the commissioner's report, before a final decree is entered therein ; and if the bill 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 680 RULES OF THE CIRCUIT COURTS. bill as confessed, have been regular, according to the rules and practice of the court. He shall also, show whether the bill has been taken as confessed against all of the defendants upon service of subpoena, or after an appearance, or whether some of them have been proceeded against as absentees. From and after January 1, 1879, sales shall not be ordered on less than six full weeks or forty-two days notice, and publication shall not commence until the time fixed by decree for pay- ment has expired, nor within a year after commencement of suit. — As amended October 18, 1878. How Surplus on Foreclosure Sale Disposed of. Rule 93. On the coming in and confirmation of the commissioner's report of the sale of mortgaged premises, if it shall appear there is any surplus money remaining in court after satisfying the amount due the complainant, any defendant upon filing an affidavit that such surplus has been paid into court, and that he is entitled to the same, or some part thereof, may have an order of course, referring it to a commissionet 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 ascer- tain the priorities of the several liens thereon ; to the end that on coming in and confirmation of the report, such further order and decree maybe made for the dis- tribution of surplus ^noneys as may be just; and every defendant who has appeared in the cause, and every person who has left a written notice of his claim to such surplus moneys with the register or assistant register, where the same are deposited, shall be entitled to notice to attend the commissioner on such reference. And any person making a claim to such surplus moneys, and who shall fail to establish his claim on the hearing before the commissioner, may be charged with such costs as the other parties have been subjected to by reason of such claim ; and the parties succeeding on such reference may be allowed such costs as by the court may be deemed reasonable ; but no costs unnecessarily incurred on such reference, or previous thereto, by any of the parties, shall be allowed on taxation or paid out of such surplus. Security by Guardian ad litem, etc. Rule 94. No guardian ad litem for an infant defendant, or next friend of an infant complainant, unless he has given security to the infant according to law, shall, as such guardian, receive any money or property belonging to such infant, or which may be awarded to him in the suit, except such costs and expenses as may be allowed by the court to the guardian, out of the fund, or received by the infant in the suit. Neither shall the general guardian of 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. EULES OF THE CIECTJIT COUETS. 681 Bills for Divorce. Rule 95. All bills for the purpose of obtaining divorce, whether the hus- band or wife is complainant, shall be duly verified by oath, in the usual manner of verifying bills, where, by the course and practice of the court, an oath is required. In a bill for a divorce on the ground of adultery, the complainant must also positively aver that the adultery charged in the bill was committed without the consent, connivance, privily or procurement of the complainant ; and that the complainant has not voluntarily cohabited with the defendant since the discovery of such adultery. And in all such bills, and in all bills for divorce upon any ground, the complainant shall also positively aver that the act done or cause charged in the bill for which divorce is sought, was committed without the consent connivance, privity or procurement of the complainant, and that such bill is not founded on or exhibited in consequence of any collusion, agreement or under- standing whatever between the parties thereto, or between the complainant and any other person. Reference to Take Proofs in Divorce Cases. Rule 96. If any such bill is taken as confessed', or the facts charged therein are admitted, by the answer, the complainant may, upon due proof by affidavit of the regularity of the proceedings to take the bill as confessed, or upon the bill and answer, have an order of course entered for a reference to a commissioner, to take proof of all the material facts charged in the bill, and to report such proof to the court, with his opinion thereon. And on such reference it shall be the duty of the commissioner, in addition to any questions put by the parties, to make such full inquiries of the persons sworn as shall be necessary to arrive at all the mate- rial facts of the case. Defense of Adultery, etc., in Divorce Cases. RlTLE 97. The defendant in the answer may set up the adultery of the com- plainant, 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. Decree for Divorce, etc., Not to be Entered by Consent or Default. Rule 98. No sentence or decree of nullity, declaring void a marriage con, tract, or decree for a divorce, or for a separate or limited divorce, shall be made of course, by the default of the defendant ; or in consequence of any neglect to 86 682 RULES 01' THE CIECUIT COUfiTS. appear at the hearing of the cause, or by consent. And every such cause shall be heard after the trial of the issue, or upon the coming in of the commissioner's report at a stated term of the court. Parties to Causes, and Witnesses, May be Examined by Court Orally. Rule 99. In all chancery cases whatever, whether for divorce or otherwise, which are at issue on pleadings and proofs, the court may call upon the parties thereto, or any of them, or any witnesses thereto, to testify orally in open court ; and in ajl cases of divorce, whether at issue or standing on the bill taken as con- fessed, the court may in like manner call upon the complainant, or any witness thereto, so to testify ; and may make all necessary orders to secure the attendance of such party or witness, and may suspend the hearing of the cause from time to time, as often as may be necessary to secure such attendance ; or in case of the neglect or refusal of the complainant to attend and testify, may dismiss the bill in the same manner as though said complainant had made default at the hearing. Payment of Iiiterlocutory Costs — Hovtr Compelled. Rule 100. When a party is ordered to pay the costs of any interlocutory proceedings, and no time of payment is specified in the order, he shall pay them within twenty days after the fiUng of the taxed bill and affidavit, and service of a copy of the order and of such taxed bill ; or if a gross sum is specified in the order, within twenty days of service of a certified copy of the order. And if he neglects or refuses 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 attachment against the delinquent. Bill of Review. Rule 101. On filing a bill of review, or other bill in the nature of a bill of review, the complainant shall make the like deposit, or give security to the adverse party in the same amount which is or would be required on an appeal from an order or decree complained of ; and no such bill shall be filed, either upon the discovery of new matters, or otherwise, without special leave of the court first 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 sat- isfactory to the court. EULES OF THE OIKCUIT COURTS. 683 Creditor's Bill— What to State. Rule 102. Where a creditor, by judgment or decree, files a bill in this court against his debtor to obtain satisfaction out of the equitable interests, things in action, or other property of the latter, after the return of an execution unsatis- fied, he shall state in such bill, either positively or according to his belief, the true sum actually and equitably due on such judgment or decree, over and above all just claims of the defendant, by way of offset or otherwise. He shall also state that he knows, or has reason to believe, the defendant has equitable inter- ests, things in action, or other property, exceeding one hundred dollars in value, exclusive of all prior claims thereon, which the complainant has been unable to dis- cover and reach by execution on such judgment or decree. The bill shall like- wise contain an allegation that the same is not exhibited by collusion with the defendant, or for the purpose of protecting the property or effects of the debtor against the claims of other creditors; but for the soie purpose of compelling payment and satisfaction of the complainant's own debt. Creditor's Bill to be Verified — Amendment of. Rule 103. Every such creditor's bill shall be verified by the oath of the complainant, or in case of his absence from the state, or other sufficient cause shown, by the oath of his agent or attorney. Such bills may be amended of course, in the same manner as bills not sworn to, if the amendments are merely in addition to and not inconsistent with what is contained in the original bill. But all such amendments shall be verified by oath, in the same manner as the bill is required to be verified. Creditor may Proceed Ex Parte when Defendant in Default. Rule 104. In suit by judgment creditor's bill, in case the defendant has been duly served with process, and he is in default for want of answer, the com- plainant shall be entitled to the like orders and proceedings in regard to receivers as he would be in case he should take the bill as confessed by the defendant. Debtor may Consent that Bill be Taken as Confessed — Order Thereon — Copy of Rule to be Served virhen Answer Required. Rule 105. The 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 allowed for an answer, deliver to the 684 RULES OF THE CIECtTIT COURTS. complainant or his solicitor 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, in conformity to this rule. Upon pre- senting such written consent to the court, the complainant may have a special order, fourided 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 shall also direct the defendant to assign, transfer and deliver over to the receiver on oath, under the direction of the commissioner, all his property, equitable interests, and in action and effects ; and that he appear before the commissioner, from time to time, and produce such books and papers, and submit to such examination 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. The expense of taking down such exam- ination by the commissioner shall be paid by the complainant in the first instance, and may be taxed and allowed to the latter as a part of his necessary costs in the suit. The complainant shall also be at liberty to examine witnesses before the commissioner, as to the property of the defendant, or as to any other matter charged in the bill and not admitted by the defendant on such examination. And . the complainant shall cause a written or printed copy of this rule to be served on the defendant at the time of the service of the subpoena, with a notice to the de- fendant that an entry of his appearance and answer on oath is required ; or such defendant shall not be answerable to the complainant for the costs of the proceed- ings to compel an appearance and answer. Receivers in Creditor's Suits, and their Powers. Rule 106. Every receiver of the property and effects of the debtor ap- pointed in a suit upon a creditor's bill, shall, unless restricted by the special order of the court or circuit 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 such as are unsafe and of a doubtful character. He may also sue in the name of the debtor, where it is necessary or proper for him to do so, and he may apply for and obtain an order of course that the tenants of any real estate belonging to the debtor, or of which he is entitled to the rents and profits, attorn to such receiver and pay their rents to him. He shall also be permitted to make leases from time to time as may be necessary, for terms, not exceediflg one year. And it shall be his duty, without unreasonable delay, to convert all the personal estate and effects into money ; but he shall not sell any real estate of the debtor without the special order of the court. He is not to be allowed for the costs of any suit brought by him against an insolvent from whom he is unable to collect his costs, unless such suit is brought by order EULES OF THE CIKCUIT COURTS. 685 of the court, or by the consent of all persons interested in the funds in his hands. But he may sell such desperate debts, and all other doubtful claims to pergonal property, at public auction, giving at least ten days' notice of the time and place of such sale. Receiver for Several Suits — Security to be Given — How to Pay Over Moneys. Rule 107. Where several bills are filed by different creditors against the same debtor, no more than one receiver of his property and effects shall be ap- pointed, unless the first appointment has been obtained by 'raud or collusion, or unless the-receiver is an improper person to execute the trust. The receiver shall give security sufficient to cover the whole property and effects of the debtor, which may come in his hands by virtue of his office ; and he shall hold such property and effects for the benefit of all creditors who have commenced, or shall commence, similar suits, during the continuance of his trust, to be disposed of according to their legal or equitable priorities. He shall not pay over the funds in his hands to the parties, or to any other person, without being especially author- ized to do so by an order or decree of the court ; nor shall he be discharged from his trust without a spedal order, to be obtained upon a written consent of all the parties interested in the property in his hands, or upon notice of the application. Receiver for Subsequent Suits — Receiver's Accounts. Rule 108. When another suit is commenced after the appointment of a receiver, the same person may be appointed receiver of such subsequent suit, and shall give such further security as the court shall direct He shall keep a sepa- rate account of any properly 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 appointment in the last cause. Effect of Injunction upon Creditor's Bills. Rule 109. No injunction issued upon any such creditor's bill shall be con- strued to prevent the debtor from receiving and applying the proceeds of his sub- sequent 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 this court, made in any other cause, to assign and deliver his property and effects to a receiver; or to restrain him 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. 686 RULES OF THE CIRCUIT COURTS. Orders on Two or More Special Motions at Same Time ; How Entered, Rui.E 110. When two or more special motions or applications in the same suit are decided at the same time, or on the same day, or several directions are given by the court in relation to the suit, the whole shall be entered together as one order, unless the court shall otherwise direct. And when a party is entitled to enter two or more orders of course in a suit at the same time, or on the same day, they shall be entered together as one order. Powers of Circuit Court Commissioners. Rule 111. Under the " Act to provide for the discharge of the duties here- tofore performed by Injunction Masters," approved June 27, 1851, (S. L., iSji, p. 277), the circuit court commissioners designated in pursuance thereof shall have the same power in c'lancery cases within their respective counties as may be properly exercised by a circuit judge at chambers, subject to such restrictions ' and regulations as the supreme court may prescribe. Restriction upon Powers of Commissioners. Rule 112. The general powers conferred by said act are hereby restricted in the following particulars : 1. No'such circuit court commissioner shall be empowered to vacate any order or decree of the circuit court, or any order made by a circuit judge. 2. Nor shall he grant any injunction to stay proceedings' at law, unless rea- sonable notice of the time and place of hearing the application therefor shall have been previously given to the adverse party. 3. Nor shall he grant any injunction without such notice, unless in his opinion the peculiar exigencies of the case require it, for manifest reasons, to be shown by affidavit. — [^See New Commissioners Act, L. of i88i,p. 241. Practice Before Commissioners. Rule 113. The rules and practice of the circuit courts in chancery shall govern the proceedings before such circuit court commissioners, as far as they may be applicable. Commissioner's Register of Proceedings. Ruj-E 114. It shall be tlie duty of every such circuit court commissioner to procure and keep in his office a register, which shall be delivered over to his sue- RULES OF THE CIECUIT COURTS. 687 cesser in office, in which he shall enter the title of each cause or proceeding in which he shall make any order, and a complete memorandum of his doings therein. And every commissioner shall file with the register of the court all orders made by him, together with all papers on which the same are based, imme4iately upon the making of such order. Appeal from Order of Commissioner. Rule 115. Any person conceiving himself aggrieved by any order made by any such circuit court commissioner, in any suit in chancery, may appeal therefrom to the circuit court of the county in which such suit is pending : Pro- vided: (1) That such appeal shall be claimed and entered within fifteen days from the time of making such order ; and (2) That the appellant shall, within that time, execute a bond to the appellee in such penal sum, not less than one hundred dollars, as the commissioner shall prescribe, with sufficient surety, to be approved by the commissioner, conditioned to pay, satisfy and perform the order which by the circuit court may be made in the premises, and to pay all costs in case the order appealed from shall be affirmed. But no such appeal shall operate as a stay of proceedings, unless a special order to that effect shall be made by the cir- cuit judge or by such circuit court commissioner, on proper cause shown. Bond on Appeal. Rule 116. 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. Proceedings to Perfect Appeal. Rule 117. It shall be the duty of the appellant under these rules to file with the circuit court commissioner, within the time ibove limited for claiming and entering his appeal, his reasons for such appeal. Whereupon it shall be the duty of such commissioner, within twenty days thereafter, to transmit to ihe clerk of the circuit court said bond and all papers upon which the motion or proceed- ing may have been founded, or which may have been used on fuch motion or proceeding, unless already 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. 688 KULES OF THE CIRCUIT COUETS. Fees of Commissioners. Rule 118. Such circuit court commissioners s all be entitled to the follow- ing fees for their services, to be^paid by the party requiring such services, on the performance of the same, viz : For entering any cause on the register required to be kept by such commis- sioner, fifty cents. For hearing a motion for injunction, when opposed, three dollars; when heard ex parte, one dollar. For attending at the time and place assigned for the hearing of any special motion, and adjourning the same upon request or on reasonable cans , one dollar. For attending and hearing every argument, upon any special motion, when contested, three dollars ; if not contested, one dollar. For certifying papers, when an appeal is claimed from the circuit court commissioner, to the circuit court, two dollars. For approving and filing appeal bond, fifty cents. For granting stay of proceedings when an appeal is taken, fifty cents. For allowing a commission to take testimony in a ca^se, fifty cents. For settling and allowing interrogatories under a commission, one dollar. For appointing a receiver, when the question is contested, three dollars and fifty cents; when ex parte, one dollar and fifty cents. If any commission. r shall perform any other duties than those enumerated in the above fee bill, he shall be entitled to such fees therefor as shall be allowed him by the circuit judge. General Practice of Court. Rule 119^ In cases where no provision is made by statute, or by these rules, the proceedings of this court shall be according to the customary practice, as it has heretofore existed in cases not provided for by statute or the written rules of the court. When Rules to Take Effect. Rule 120, These rules shall take effect from and after the fifteenth day of June, 1858. Proofs in Partition Suits. Rule 121. In all cases where a suit is brought for n partiti >n of lands, if any defendant is an infant and has answered generally, the complainant may at EtFLES OF THE CIECTJIT COUETS. 689 any time Iherealter, before hearing, enter an order o( course for a reference to take proofs 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, an 1 a complete abstract of all the conveyances and incumbrances; all of which proofs and abstracts shall be reported 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 cir- cumstances of the case; and the court may at any time order such reference, or further references, as justice may require for the complete information of the court. And the proofs shall in all cases be returned to the court for its action thereon. — Adopted July ly, i86j. Form of Subpoena — Underwriting — Printed Forms. KuLE 122. To remove the danger of mistake among defendants ignorant of the meaning of the command of a subpoena, it shall be necessary, after the first day of January, 1880, and permitted and recommended until then, that the body of the subpoena, instead of requiring personal appearance under a pecuniary pen- alty, shall contain a notice of the filing of the bill, and of the time when appear- ance may be entered on penalty of default ; and there shall be underwritten a notice designating gainst what defendants a personal decree is asked. Such subpoena shall be in substantial compliance with the form hereto ap- pended. Printed forms must be clearly and legibly printed on durable paper, and such subpoena and underwriting must be on a page of full letter size, and the heading and place of endorsement deep enough not to be obscured by enrdllment. — Adopted April 22, iSjg. Form of Subpoena. [For form of subpoena under this rule, see form No. 4.] 87 GENERAL EQUITY RULES Of the Cieouit Courts of the United States. KULES OP PRAOTIOB FOR THE CIRCUIT COURTS OF THE UNITED STATES, IN EQUITY. Revised and Corrected at December Term, 1881. Section i. — Preliminary Regulations. 2. — Process. 3. — Service of Process. 4. — Appearance. 5. — Bills Taken Pro Confesso. 6. — Frame op Bill. 7. — Scandal and Impertinence in Bills. 8. — Amendment of Bills. 9. — Demurrers and Pleas. 10. — Answers. II. — Parties to Bills. 12. — Nominal Parties to Bills. 13. — Bills of Revivor and Supplemental Bills. 14. — Answers. 15. — Amendment of Answers. 16. — Exceptions to Answers. 17. — Replication and Issue. 18, — Testimony — How Taken. 19. — Testimony De Bene Esse. 20. — Form of Last Interrogatory. 21. — Cross-Bill. 22. — Reference to, and Proceedings Before Masters. 23. — Exceptions to Report of Masters. 24. — Decrees. 25. — Guardians and Prochein Amis. Preliminary Regulations. I The circuit courts, as courts of equity, shall be deemed always open for the purpose of filing bills, answers and other pleadings, for issuing and returning mesne and final process and commissions, and for making and directing all interlocutory motions, orders, rules and other proceedings, preparatory to the hearing of all causes upon their merits. I Phila., 576. 693 694 GEITEBAL EQUITY EULBS. 2 The clerk's office shall be open, and the clerk shall be in attendance therein, on the first Monday of every month, for the purpose of receiving, entering, entertaining and disposing of all motions, rules, orders and other proceedings, which are grantable of course and applied for, or had by the parties, or their solicitors, in all causes pending in equity, in pursuance of the rules hereby prescribed. 3 Any judge of the circuit court, as well in vacation as in term, may, at chambers, or on the rule days, at the clerk's office, make and direct all such interlocutory orders, rules and other proceedings, preparatory to the hearing of all causes upon their merits, in the same manner, and with the same effect as the circuit court could make and direct the same in term, reasonable notice of the application therefor being first given to the adverse party, or his solicitor, to appear and show cause to the contrary at the next rule day thereafter, unless some other time is assigned by the judge for the hearing. 4 All motions, rules, orders and other proceedings made and directed at chambers, or on rule days at the clerk's office, whether special or of course, shall be entered by the clerk in an order book, to be kept in the clerk's office, on the day when they are made and directed; which book shall be open, at all office hours, to the free inspection of the parties in any suit in equity, and their solicitors. And except in cases where personal or other notice is specially re- quired or directed, such entry in the order book, shall be deemed sufficient notice to the parties and their solicitors, without further service thereof, of all orders, rules, acts, notices and other proceedings entered in such order book, touching any and all the matters in the suits to and in which they are parties and solicitors. And notice to the solicitors shall be deemed notice to the parties for whom they appear and whom they represent, in all cases where personal notice on the parties is not otherwise specially required. Where the solicitors for all the parties in a suit reside in or near the same town or city, the judges j!>i the circuit court may, by rule, abridge the time for notice of rules, orders, or other proceedings, not requiring personal service on the parties, in their dis- cretion. I McAl., 447; 3 McLean, 503; i Saw., 63. s AH motions and applications in the clerk's office for the issuing of mesne process and final process to enforce and execute decrees; for filing bills, answers, pleas, demurrers and other pleadings; for making amendments to bills and answers; for taking bills pro confesso; for filing exceptions, and for other pro- ceedings in the clerk's office, which do not, by the rules hereinafter prescribed, require any allowance or order of the court, or of any judge thereof, shall be deemed motions and applications, grantable of course by the clerk of the court. But the same may be suspended, or altered, or rescinded by any judge of the court upon special cause shown. GENERAL EQUITY EULES. 695 6 All motions for rules or orders and other proceedings, which are not grant- able of course, or without notice, shall, unless a different time be assigned by the judge of the court, be made on a rule day, and entered in the order book, and shall be heard at the rule day next after that on which the motion is made. And if the adverse party, or his solicitor shall not then appear, or shall not show good cause against the same, the motion may be heard by any judge of the court ex parte, and granted, as if not objected to, or refused, in his discretion. Process. 7 The process of subpoena shall constitute the proper mesne process in all suits in equity, in the first instance, to require the defendant to appear and answer the exigency of the bill; and unless otherwise provided in these rules, or specially ordered by the circuit court, a writ of attachment, and, if the defendant cannot be found, a writ of sequestration, or a writ of assistance to enforce a de- livery of possession, as the case may require, shall be the proper process to issue for the purpose of compelling obedience to any interlocutory or final order or decree of the court. 5 Mass., 35. 8 Final process to execute any decree may, if the decree be solely for the payment of money, be by a writ of execution, in the form used in the circuit court in suits at common law in actions of assumpsit. If the decree be for the performance of any specific act, as, for example, for the execution of a convey- ance of land, or the delivering up of deeds or other documents, the decree shall, in all cases, prescribe the time within which the act shall be done, of which the defendant shall be bound, without further service, to take notice; and upon affidavit of the plaintiff, filed in the clerk's office, that the same has not been complied with witliin the prescribed time, the clerk shall issue a writ of attach- ment against the delinquent party, from which, if attached thereon, he shall not be discharged, unless upon a full compliance with the decree and the payment of all costs, or upon a special order of the court, or of a judge thereof, upon motion and affidavit, enlarging the time for the performance thereof. If the delinquent party cannot be found, a writ of sequestration shall issue against his estate, upon the return of non est inventus, to compel obedience to the decree. 9 When any decree or order is for the delivery of possession, upon proof made by affidavit of a demand and refusal to obey the decree or order, the party prosecuting the same shall be entitled to a writ of assistance from the clerk of the court. By an Infant. — This defendant answering by his said guardian, saith that he is an infant of the age of years or thereabouts, and he therefore submits his rights and interests in the matters in question in this cause to the protection of this honorable court ; without this, that, etc. By a Formal Party who is a Stranger to the Facts. — This defendant saving and reserving to himself, etc., answers and says that he is a stranger to all and singular the matters and things in the said complainant's bill of complaint con- tained, and therefore leaves the complainant to make such proof thereof as he shall be able to produce; without this, that, etc. '^O. 54. Introduction or Protestation Clause Preceding an Answer. See p. 80. This defendant [or these defendants respectively,] now at all times hereafter saving to himself [or themselves] all and all manner of benefit or advantage of exception or otherwise that can or may be had or taken to the many errors, uncer- tainties and imperfections in the said bill contained, for answer thereto or to so much thereof as this defendant is [or these defendants are] advised it is material or necessary for him [or them] to make answer to, answering saith [or severally answering say.] Note. — The following answers every purpose: ^ Short Form. — This defendant reserving to himself all right of exception to the said bill of complaint for answer thereto says, etc. Note. — This clause is always omitted in an infant's answer. No. 55. Conclusions of Answers. And this defendant denies all and all manner of unlawful combination and confederacy wherewith he is by the said bill charged, without this, that there is 96 762 APPENDIX OF PRECEDENTS. any other matter, cause or thing, in the said 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, confessed, traversed and avoided, or denied, is true to the knowledge 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 asks to be hence dismissed with his reasonable costs and charges in this behalf sustained. [Add Jurat if necessary.] Note. — The following conclusion answers every purpose: Short torm. — And this defendant further answering denies that the com- plainant 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 rea- sonable costs and charges in this behalf sustained. Fo. 56. Where Party Claims the Same Benefit of Defense as if the Bill had been Demurred to for Want of Equity. And this defendant submits that all and every of the matiers in the said complainant's bill mentioned and complained of are matters which may be tried and determined at law, and with respect to which the said complainant is not entitled to any relief from a court of equity ; and this defendant asks that he shall have the same advantage of this answer as if he had pleaded or demurred to the said complainant's bill : And prays to be dismissed with his reasonable costs and charges wrongfully sustained. [See short form of demurrer clause following No. 4.] No. 57. Order to Take Ansvirer Without Oath or Signature. [Title of cause.] [Caption.] On reading and filing the written consent of J. E., solicitor for the complain- ant, that the answer of the defendant, C. D., to the bill in this cause, be taken without oath [or the signature of said C. D.], and on motion Mr. J., solicitor for the said defendant, ordered that the answer of the said defendant may be put in without oath [or, being signed by the said C. D.] APPENDIX O^ PEECEDENTS. 763 Ho. 58. Short Form of Answer. [Title of cause.] This defendant reserving to himself all right of exceptions to the said bill of complaint, for answer thereto, says, etc. [Proceed with the several averments according to the case, admitting or denying every material allegation in the stat- ing part of the bill, and set up any matter in defense or avoidance as the nature of the case may require ; and conclude as follows :] And this defendant further answering, denies that the complainant is entitled to the relief, or any part thereof, in the said bill of complaint demandi:d, 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. , Solr. for defendant. S. R. [Add jiurat if required.] No. 59. Model Form of Ansvirer in England Under Orders of August 7, 1852. [Title of court and cause.] Commencement.— T\\* answer of C. D., one of the above named defendants [or the above named defendant, as the case may ie], to the bill of complaint [or, the amended bill of complaint, or the supplemental bill of complaint, or to the original bill of complaint, and also to the supplemental bill of complaint] of the above named plaintiff In answer to the said bill, I, C. D., say as follows : 1. I admit that the indenture of the fourteenth day of May, 1854, in the plaintifFs bill mentioned, was made and executed between and by the several parties, and was to the purport and effect in the said bill set forth ; but I crave leave lo refer to the said indenture when the same shall be produced to this hon- orable court. 2. I believe that such representations as set forth in the of the inter- rogatories to the plaintiff's bill were made by therein mentioned. 3. I deny that I did on the day of , or at any other time, state, etc. 764 APPENDIX OF IPKBCEDEI^TS. 4. [A statement of circumstances varying from the statement thereof in the plaintiff's bill.] 5. Save, as aforesaid, I deny, &c. [here the allegations in the plaintiff's bill are denied.] Or, 6. Save as aforesaid, 1 am unable to set forth as to my knowledge, remem- brance, information or belief, whether, etc. 7. I claim, etc. [statement of defendant's claim or case.] [Signature.] [Jurat.] ]sro. 60. Disclaimer. See p. 91. [Title of cause.] The answer and disclaimer* of C. D., defendant to the bill of complaint of A. B., complainant. This defendant now and at all times hereafter saving and reserving, etc., answer and say, [here answer the bill with the exception of the formal conclusion then add the disclaimer, as follows.] And this defendant further answering 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 bond and mortgage, or in and to the moneys due thereon or secured thereby, or to the said mortgaged premises or any part thereof, or to the equity of redemption in the same or any part thereof. And this defendant disclaims all right and title of, in or to the same and every part thereof. And this defendant denies all, etc. [usual conclusion.] Note, [In general a disclaimer cannot be put in alone, as the defendant may have had an interest in the subject matter and parted with it, and an answer may be necessary to enable the complainant to make a proper party to the bill. — 2 Newl. Pr. 145; Mitf. PI. 257.] CHAPTBE VI. PROCEEDING BY COMPLAINANT PREVIOUS TO REPLYING. No. 61. Exceptions to Answer for Insufficiency. See p. 94. [Title of cause.] Exceptions taken by the said com- plainant to the answer put in by the defendant A. R., to the said complain- ant's bill of complaint. First Exception. — For that the said defendant, A. R. , hath not, to the best and utmost of his knowledge, remembrance, information and belief, answered and set forth whether, [set forth the interrogatory in the bill which is not answered, in hcec verba,'\ Second Exception. — For that the said defendant, A. R., hath not, in manner aforesaid, answered and set forth whether, etc., [as before.] In all which particulars the answer of the said defendant, A. R., is, as the said complainant is advised, imperfect, insufficient, and evasive; and the said complainant therefore excepts thereto, and prays that the said defendant A. R., may put in a further and better answer to the said bill of complaint. W. M., solicitor for complainant. Ifo. 62. Order for Answer on Submission to Exceptions. [Title of cause.] [Caption.] The defendant, A. R., having filed his written submission to the second and third exceptions for insufficiency, taken by said complainant to the answer of said 765 766 APPENDIX OF PEECEDENTS. defendant, A. R., and [the rest of such exceptions having been abandoned, or, the rest of such exceptions having been disallowed,] on motion of S M,, solicitor for complainant, it is ordered that the said defendant, A. R., put in a further answer to the said second and third exceptions within twenty days after notice of this Older, and pay the costs of such exceptiois, or that the bill of complaint which is filed in this cause be taken as confessed by said defendant, A, R., [or, that an attachment issue against said defendant.] N^o. 63. Order of Reference wrhen Defendant does not Submit to Answer Excep- tions. See Ch. Rules 30, 31 [Title of Cause.] [Caption.] Exceptions for insufficiency having been filed to the answer of the said defendant, A. R., on ihe day of last, and the said A. R, not having submitted to answer said exceptions ; on motion of S. M., solicitor for complain- ant, it is ordered, that it be referred to C. H. S , one of the commissioners [or master] ot this court, to look into said bill, the answer of said defendant, A. R., and such exceptions, and report whether such exceptions are well taken or not. No. 64. Exceptions to Answer for Scandal and Impertinence. See p. 95. [Title of Cause.] 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 Exception.— ?ox that the said answer is scandalous from and including the word 'they" in the third line of the second folio down to and including the word "appear" in the eleventh line of the third folio thereof. APPENDIX OB" PEECEDENTS. 767 Second- Exception.— Yiyc that the said answer is impertinent from and including, etc., [as above.] In all "which particulars this except- ant excepts to the said answer put in by the defendant C. D., to the said bill of complaint, as scandalous or impertinent, and he insists that the same ought to be expunged from the said answer. J. E., solicitor and of counsel for complainant. No. 65. Order to Expunge Scandal and Impertinence on Submission to Excep- tions. [Title of cause.] [Caption.] The answer of the defendant C. D., having been excepted to for scandal and impertinence, and the said defendant having submitted to such exceptions in the matters of the first, second and fourth exceptions as appears by a notice of such submission signed by his solicitor and served upon the complainant's solicitor ; on reading and filing such notice of submission, and on motion of J. E,, solicitor for the complainant, ordered that the register of this court do expunge from the said answer such scandalous and impertinent matter according to said notice of submission. And it is further ordeled that the said C. D., pay to the complam- ant or his solicitor, the costs of said exceptions, and the proceedings thereon, within twenty days after service of a copy of this order, and of the taxed bill of costs on him or his solicitor, or that an attachment issue against him. (1) No. 66. Order for Leave to Amend Bill After General Demurrer. See p. 63. [Title of cause.] [Caption.] The defendant, C. D., having put in a general demurrer to the bill of com- plaint in this cause lor want of equity, on motion of Mr. N., of counsel for com- (1) Note.— In Michigan where parties are made general witnesses, the practice on excep- tions is practicably obsolete. — Rule 27 to 40, 768 APPENDIX OP PEEOBDENOB. plainant, ordered that said complainant have leave to amend his bill as he may be advised upon payment of costs to be taxed. No. 67. Petition for Leave to Withdravir Replication and Amend Bill. [Title of cause and court,] See p, 114. The petition of the above complainant respectfully shows that the defendant in this cause has caused his appearance to be entered therein, and has put in his answer to the bill of complaint ; and that your petitioner has filed a replication, but no witnesses have been examined by either party. That since the filing of such replication your petitioner has been advised by his counsel and believes that it is essential to the rights of your petitioner; in this cause that the bill therein should be amended by adding thereto the following statements [insert matter pro- posed to be introduced.] And your petitioner further shows that he had no knowledge of the facts above set forth, nor was he aware of the necessity of inserting them in his bill until after the said replication was filed. And your petitioner therefore prays that he may be at liberty to withdraw his said replication and amend his bill by adding parties defendants, or otherwise, as he shall be advised, on payment of costs. No. 68. Order for Leave to Withdraw Replication and Amend Bill. [Title of cause and court,] [Caption.] The complainant applying by petition for leave to withdraw his replication and amend his bill, on motion of Mr. A., counsel for complainant, ordered that said complainant have leava; to withdraw his said replication and amend his biU by adding parties defendants as he shall be advised, on payment of costs. APPENDIX OF PliECEPENTS. 769 No. 69. Amendments to Bill. See p. 96. [Title of cause.] Amendments to the bill of complaint in this cause, made pursuant to an order of this court dated the day of instant. 1. In the third line of the second folio of the bill, after the word ''testator," interline to wit, on or about the 5th day of June, 1880. 2. After the worJ "satisfaction,'' in the tenth line of the fifth folio, insert the amendment marked " A ," which is annexed to the bill on file, as follows : [insert amendment.] 3. Strike the names of C. D. and M. F. out of the :ixth line of the third folio. W. J., sol'r for compl't. IfO. 70. Order Allowing Complainant to Dismiss Bill. See p. 103. [Title of cause.] [Caption.] The complainant applying to dismiss his bill in this cause, on motion of J. E., solicitor for said complainant, it is ordered that leave to dismiss the saipe be grinted accordingly on said complainant paying to the defendant his costs in this suit, to be taxed. No. 71. Petition for Production and Inspection of Papers. See p. 104. [Title of cause.] The petition of the above complainant respectfully shows: That the answer of the defendant C. D. has been put in, in this cause, and a replication thereto has 97 770 APPENDIX OP PEECEDEKTS. been filed, but that no testimony has been taken in the cause, nor has the same been noticed for hearing. That by the answer of the said defendant he admits that he is in possession of divers boolis, deeds, leiters, accounts and other papers relating to the matters at issue in this cause. And your petitioner further shows that he has a direct and immediate inter- est in the said books, deeds, and other papers, and that an inspection thereof is necessary to enable him to examine witnesses in this cause, and to prepare such cause for hearing. Your petitioner therefore prays that the said defendant may be ordered to produce to and leave with the register of this court the books, deeds and other papers above mentioned; and that your petitioner, his solicitor, agirt or counsel, may be at liberty to inspect and peruse the same and to take copies thereof, or extracts therefrom as he may be advised. [Jurat.] [Serve defendant with copy of said petition, and when it will be presented.] No. 72. Order for Production of Papers. [Title of cause.] [Caption] On reading and filing the petition of the complainant in this cause duly ver- ified [and on reading and filing due proof of the service of notice of this motion,] and on motion of J. E., solicitor for said complainant, in support of the same, and on hearing Mr. R. in opposition thereto [or, and no one appearing to oppose] ordered that the defendant, C. D., do within ten days from the date of this order produce to, and leave with the register of this court, the books, deeds, letters, ac- counts and other papers relating to the matters at issue in this cause which are omitted by the said defendant's answer to be in his possession ; and that the com- plainant, his solicitor, agent or counsel may be at liberty to inspect and peruse the same and to take copies thereof or extracts therefrom as he may be advised at his own expense ; but that the said defendant be at liberty to seal up such parts of the said books, deeds, etc, as he shall make oath do not in any manner relate to the matters in controversy in this suit. APPENDIX OF PRECEDENTS. 771 No. 73. Notice of Motion for the Payment of Money into Court upon Admis- sions. ee p. 106. [Title of cause.] Sir: — Take notice that I intend to move this honorable court on the day of next, at ten o'clock in the forenoon, or as soon thereafter as coun- sel can be heard, at in the city of , for an order that *the above named defendant may, on or before the day of next, pay into the hands of the register of this court, in trust, in this cause, the sum of $ admitted by the answer of the said defendant to be due from him ; and that the same, when paid in, may be deposited in trust by the register in such bank, or invested by him in trust, in such manner as this court shall direct, with costs. And for such further, or for such other order or relief as the court may think proper or grant; which motion will be founded on the bill and answer in this cause. Yours, etc., Dated Detroit, June 15, 1881. W. J., sol'r for compl't. To J. W., solicitor for defendant. ^"0. 74. Order to Pay Money into Court. [Title of cause.] [Caption.] On reading and filing bill and answer in this cause, [and due proof of service of notice of this motion,] and on motion of J. E., solicitor forthe complainant, and on hearing Mr. N, in opposition to said motion [or no one ap;;earing to oppose,] it is ordered that the defendant, C. D., do on or before the day of next, pay into the hands of the regisler of this court, in trust, in this cause, the sum of $ , arlm'tted by the answer of said defendant to be due from hira ; and that when such money be paid in it be deposited by said ngister in trust in the Bank of [or inve.'led on bond and mortgage, in trust,] to the credit of this cause, there to remain until the further order of this court. CHAPTBE VII. PROCEEDINGS BY DEFENDANT BEFORE REPLICATION. No. 75. Affidavit to Procure Dismissal of Bill for Want of Prosecution. See p. 109. [Title of cause.] [Venue.] . E. F., one of the defendants in this cause, being duly sworn, deposes and says that the bill in this cause was filed on or about the day of last ; that the answer of this deponent was put in on the day of last ; and that the cause is in readiness for hearing on bill and answer as to this deponent ; but that the cause is not in readiness for hearing as to C. D. and G. H., the other defendants therein, their answers not having yet been filed ; and that the com- plainant has taken no steps to compel the said defendants to answer or to expe- dite the proceedings against them. No. 76. Notice of Motion to Dismiss Bill for Want of Prosecution. [Title of cause ] Sir: Take notice that I intend to move this honorable court on the day of next, at 10 o'clock in the forenoon, or as soon thereafter as counsel can be heard, at the circuit court room, in the city of , for an order that the bill of complaint in this cause be dismissed with costs for 772 APPENDIX OF PEECEDENTS, 773 want of prosecution, and for such other order or relief as the court may think proper to grant ; which motion will be founded on the bill and answer in this cause [or upon tlie affidavits with copies whereof you are herewith served.] Dated Detroit, June 21, 1881. Yours, etc., To W. R., Sol'r for complainant. W. J., Sol'r for defendant. No. 77. Order to Dismiss Bill for Want of Piosecutlon. [Title of cause.] [Caption.] On reading and filing affidavits, etc. [and due proof of service of notice of this motion], and on motion of W. R,, solicitor for the defendant, C D , and on hearing Mr. W. J., solicitor for the complainant, in opposition thereto, it is or- dered that the bill of complaint in this cause be dismissed, with costs, for want of prosecution. K'o. 78. Petition by Defendant for Leave to Amend his Answer. See p. 89. [Title of cause.] The petition of the above named defendant respectfully shows that he put in his answer to the bill of coraplaiat in this cause on the day of , and that since that time, and for the first time he has been informed, and believes it to be true, that [insert the facts proposed to be introduced.] That he has been advised by his solicitor and believes that it is essential to the rights of your peti- tioner that his said answer should be amended by adding thereto the following statements [insert matter.] And your petitioner further shows that -he had no knowledge of the facts above set forth, nor was he aware of the necessity of inserting them in his answer until after the same was filed. He therefore prays that he may be permitted to amend his said answer or to file a supplemental answer containing the said state- ments.! [Jurat.] [Signature.] [1] Graves v. Niles, Harr. Ch. 332. 774 APPENDIX OS' PStECEDENTS. K"o. 79. Order to Amend Answer. [Title of cause and court.] [Caption.] The defendant liaving applied to amend his answer to the bill of com, laint, [or to file a supplemental answer,] on motion of C. I. W., solicitor for defendant, ordered that sii I defendant have leave to amend his answer in accordance with the prop sed amendments filed, upon payment of costs to be taxed. No. 80. Affidavit to Put Complainant to his Election. See p. 110. [Tile of cause.] State of Michigan. \ County of | C. D., the defendant in this cause, being duly sworn, deposes and says that the complainant is prosecuting this deponent both at law and in this court, in the above entitled cause for the same matter and caue of action; whereby this deponent is doubly vexed. And this deponent further says that he caused his answer in this suit to be filed and served on the day of last. [Jurat.] N"o. 81. Notice of Motion for Order that Complainant Elect. [Title of cause.] Sir : — Take notice that I intend to move this honorable court on the day of next, at 10 o'clock in the forenoon, or as soon thereafter as counsel can be heard, at the circuit court room in (he city of , for an order that the complainant in this cause may elect wheihei he will proceed in this court, in the aboie entitled suit, *or in the suit commenced against the defendant in the court; and that if he sha'.l elect ti proceed in this court, then that his proceedings in the said suit in the court may be stayed by injunction ; but that in default APPENDIX OP PRECEDENTS. 775 of such election within the time limited by the court, or if the complainant shall elect to proceed at law, then that the bill in this cause stand dismissed with c'osts,f and for such other order or relief as the court may think proper to grant, which motion will be founded on the aflSdavits, copies whereof are hereto annexed, and on the pleadings in the causes above mentioned respectively. Yours, etc., Dated, Detroit June 21, 1881. To W. R. Esq., sol'r for deft. W. J., sol'r for compl't ITO. 82. Older that Complaitiant Elect. [Title of cause.] [Caption.] On reading and filing affidavits, etc., [and due proof of service of notice of this motion] and on motion, W. R., lolicitor for the defendant, C. D., and on hearing Mr. W. J., solicitor for complainant, in opposition thereto, it is ordered that the complainant in this case, do, within days from the date of this order, elect whether he will proceed in the present suit in this court. [Conclude as in No. 81 from the * to the f-] CHAPTEE VIII. REPLICATION. :^o. 83. [Title of cause and court.] The replication of A. B., complainant, ,to the answer of C. D., defendant, the repliant saving and reserving to himself now and at all times hereafter, all and all manner of benefit and advantage of exception which may be taken to the manifold insufficiencies of the said answer, for replication thereunto, say that he will aver maintain and prove his bill of complaint to be true, certain and sufficient in the law, to be answered unto ; and that the said answer is uncertain, untrue and insuffi- cient, to be replied unto by the repliant without this, that any other inatter or thing whatever, in the said answer contained, material or effectual in the law, to be replied unto, and not herein and hereby well and sufficiently replied unto, con- fessed and avoided, traversed or denied, is true ; all which matters and things the repliant is and will be ready to aver, maintain and prove, as this honorable court shall direct, and humbly pray that as in and by his said bill he has already prayed. A. P., solicitor for complainant. Note.— Tn Massachusetts the form of the replication is that " The plaintiff joins issue on theansvvT." In N. Hampshire " The plaintiff says his bill is true, and the defendant's answer as set forth is not true, and this he is ready to prove." 776 CHAPTEE IX. TESTIMONY. No. 84. Notice of Intention to Examine Witnesses in Open Court.* [Title of cause.] Sir.: Please take notice that I claim the right under the statute to an examination of all the witnesses in this cause in open court as in a suit at law. Dated, etc. Yours, etc., To W. R., Esq., Sol'r'for defendant. W. J., Sol'r for complainant. [File proof of service of foregoing notice with register.] (1) Cti. Rule il ; Laws of 1877, p. IT. No. 85. Affidavit to Obtain Order for Examination of Witnesses De Bene Esse. See p. 117. [Title of cause.] County of Wayne, ss. ' " A. B., the complainant in this cause, being duly swom, deposeth and saith that he has exhibited his bill in this cause against the defendant, to which the said defendant has appeared. That J. H., of the city of , merchant, is of the age of seventy yeirs an3 upwards [or is dangerously ill and is not expected to recover, as the case may be.] And is a material witness for this deponent in the above entitled cause. [Give^ notice of application, and file proof of service.] 98 777 778 Appendix op peeoedents. Fo. 86. Order to Examine a Witness De Bene Esse. [Title of cause.] [Caption.] On reading and filing affidavits of, etc., and on motion of A, B., solicitor for complainant, it is ordered that the complainant be at liberty to examine J. H., of the city of as a witness in this cause, de bene esse, bt:fore a commissioner of this court, residing in, etc. And that the defendant in this cause be allowed to attend such examination and cross-examine the said witness. S"o. 87. Notice of Examination of Witnesses De Bene Esse. [Title of cause.] Sir: Take notice that J. H. , of the city of , merchant, will be examined as a witness in this cause, de bene esse, at his residence, No. street, before P. G , a commissioner of this court, pursuant to an order thereof, dated the day of — — instant, on the day of instant, at o'clock — M. Dated , 1881. Yours, etc., To S. N., Esq., sol'r for deft. J. E., sol'r for compl't. ITO. 88. Order to Produce Witnesses Under Rule 47. See p. 127. [Title of cause.] [Caption.] This cause being at issue as to all the defendants by the filing of replications to the several answers of such defendants [except E. F., the same being in readi- ness for hearing as to him by the bill having been taken as confessed by him], and more than ten days having elapsed since said cause was at issue, and no notice having been given by either party of an intention to examine the witnesses APPENDIX OP PEECEDENrS. 779 in open court, on motion of A. B., solicitor for the complainant, ordered that the parties proJuce witnesses in this cause within sixty days after notice of this order. [The I arty talcing such order will then give notice in writing to the opposite party of such order.] No. 89. Notice of Order to Produce Witnesses. See p. 127. Take notice thatby an order of this court bearing date the day of , 188—, the parties in this cause are required to produce witnesses therein, within sixty d.Tys after notice of said order. Dated, etc. To E, F., sol'r for deft. A. B., sol'r for compl't. No. 90. Affidavit of Service of 6o-Day Notice to take Testimony. See Ch. Rule 47. [Title of cause.] County of Wayne, ss. A. B. being duly sworn, deposes and says that he served a notice to take testimony in this cause on C. D., the solicitor for defendant, [or had received a written notice from the defendant] on the day of , a copy of which is hereunto annexed and made a part of this affidavit. [Jurat.] [Note. — When ready to commence the examination of witnessess give the opposite party ten day's notice of the intention, giving flames, places of abode, and time and place, etc., of such examination.] No. 91. Notice of the Examination of Witnesses Before a Commissioner. [Title of cause.] TaVe notice that the following witnesses, to wit : C. D., of Detroit, residin<; at No. 100 Jefferson avenue, and E. F., of the same place, residing at No. 900 780 APPENDIX OF PRECEDENTS. Woodward avenue, will be examined on behalf of the complainant before G. H„ one of the commissioners of this court, at his office in Detroit. Such examination to commence on the day of next, at ten o'clock in the forenoon, and to proceed as shall suit the convenience of such commissioner. Dated . Yours, To C. D., Esq., Sol'r for deft. W. I., Sol'r for compl't. K"o. 92. AfSdavit to Obtain an Order for an Interpreter, See p. 134. [Title of cause and court.] [Venue.] A. B., the complainant in this cause, being duly sworn, deposes and says that he has exhibited his bill in this cause against the defendant, to which the said defendant has appeared, and that such cause is at if sue upon bill, answer and replication. That this deponent's solicitor, as he is informed by said solicitor, and believes, has given notice of the examination of witnesses before T. G., one of the commissioners of this court, on the day of instant. That D. F., one of the witnesses proposed to be examined on the part of this deponent, is a native of Germany and does not understand the English language, and that it will be necessary to appoint an interpreter before he can be examined. [Jurat.] Note — This affidavit may be changed according to the necessity for an interpreter, e. g. when the bill or answer is to be sworn to, etc. No. 93. Order for Interpreter. [Title of cause.] [Caption.] On reading and filing affidavits, and on motion of Mr. E., of counsel for complainant, no one appearing to oppose, ordered that B. H. be appointed an interpreter to interpret truly the oath to be administered and the questions to be put to D. F., a witness to be examined on the part of the complainant in this cause, before T. G., one of the commissioners of this court, out of the English language into the German language, and to interpret the answer of the said D, APPENDIX OF PEECEDENTS. 781 F. thereto, out of the German into the English language; and that the said com- missioner do first administer to him the usual oath to interpret truly and faithfully as aforesaid, [or if a bill or answer, or other pleading is to be sworn to, alter accordingly.J No. 94. Oath of Interpreter to Answer of Foreigner. [Title of cause. ] A. L. A,, of the city of Detroit, being duly sworn, deposeth and saith, that he is well acquainted with the French and English languages, and that he hath truly and correctly read over and translated to the defendant the bill of complaint in this cause, and that he has also read over to the defendant the translation in the French language of the answer of the said defendant in English, hereto annexed ; and that the same is a correct translation of the English into the French language ; and that the same is true and just, to the best of his ability, which said answer in French is also hereto annexed. ISO. 95. Petition for Enlarging Time for Examining Witnesses. See p. 135. [Title of cause and court.] Your petitioner, A. B , respectfully shows that the said cause was at issue by filing of replication, and the usual 60-day order in which to take testimony, was entered on the day of , 1882, and that said time expires on the day of , 1 882. Your petitioner further shows that he has been unable to ascertain the names and residences of the witnesses necessary to be examined in said cause, and asks that the time for the taking of testimony may be extended for the period of ' days. [If the application is made after the expiration of said 60 days, it must show an excuse for the neglect, and state what it expects to prove by the witnesses.] [Jurat] Note. —A party may make an ex parte application to enlargfe time within the 60 days under Rule 47- After ttiat it must be on notice. See Rule 59 ; Thayer v. Swift, Walk. Ch. 782 APPENDIX OF PBECEDENTS. No. 96. Order to Enla:qi;e Time for Examination of Witnesses. Rule 69. [Title of cause.] [Caption.] The time limited for the taking of testimony in this cause under the rules, hav- ing expired, on application of said defendant lo eiilarge the time for producing witnesses, it is ordered that said time be extended for the period of thirty days from the day of . No. 97. Order Closing Proofs. See p. 135. Rule 47. [Title of cause.] [Caption.] On reading and filing due proof of service of notice of the order for taking testimony in this cause, heretofore entered therein, and the' time limited therefor in said order having expired, on motion of E. W. M., solicitor for , it is ordered that the proofs in this cause, be, and they are hereby closed. E. W. M., sol'r for . S. H. C, register in chancery. No. 98. Notice to Commissioner to Return Proofs. [Title of cause.] Sir : The time for taking testimony in this cause having eifpired, you will please return the proofs tiken therein by you for both parties in said cause, to the office of register of the circuit court for the county of . Dated, etc. Yours, etc., W. J., sol'r for compl't. To C. F., Esq., Circuit Court Commissioner, Detroit. APPENDIX OF PRECEDENTS. 783 No. 99. Petition for a Commission to Examine Witnesses within this State, Rule 48. [Title of cause.] To the register of the circuit court for the county of 'Wa)'ne, in chancery. The petition of A. B., complainant in the above entitled cause, respectfully shows that as your petitioner is informed by his solicitor, and believes, the above entitled cause is in readiness to take testimony ; that no application has been made to take the testimony in open court at the hearing, or for an issue within the time prescribed by the rules of this court ; that an order to produce witnesses in this cause has been entered, and notice thereof served upon [or by] the solicitor of your petitioner on the day of , 1881. Your petitioner further shows that S M., of , in the county of , is a material witness for your petitioner in the above cause ; bnt that the residence of the said S. M., is more than thirty miles from any commissioner of this court. Your petitioner therefore prays that a commission may issue out of and under the seal of this court for the examination of the said S. M. , directed to L. M., N. O. and P. R., of the said town and county. And your petitioner will ever pray, etc. [Jurat.] A. B. Wo. 100. Notice of Presentation of Petition. [Title of cause.] Sir : Take notice that a petition with a copy of which you are herewith served, will be presented to the register of this court, on the day of instant, and a motion thereupon made that the prayer of said petition be granted. Yours, etc., Dated, Detroit, June 16, 1881. To J. E., sol'r for deft. W. M., sol'r for compl't. 784, APPENDIX OP PEECEDBNTS. No. 101. Affidavit of Service of Notice and Petition. [Title of cause.] County of Wayne, ^ss W. B., solicitor for the complainant in the above entitled cause [or R. W., clerk in the office of W. B., the complainant's solicitor in the above entitled cause,] being duly sworn, says that on the day of , he served on J. M., the solicitor for the above named defendants, a copy of the foregoing peti- tion with a notice that an application would be made to the register of this court on the day of , that the prjyer thereof be granted. That such service was made by leaving said petition an.d notice in the office of the said J. M., on W. P., a clerk who has charge of the same ; the said J. M. being absent therefrom. [Jurat.] No. 102. Order for Commission to Examine Witnesses Within the State. [Title of cause.] [Caption.] On reading and filing the petition of the above-named complainant, duly verified, praying that a commission may issue to examine S. M., of , in the county of , as a witness on the part of said complainant ; on motion of W. B., of counsel foi'said complainant, it is ordered that a commission issue for the examination of the said S. M., directed to L. M., N. O. and P. R., of the said town of , commanding them to examine the said S. M., either orally or upon interrogatories to "be annexed to said «ommission. [N. B. — If the defendant wishes to join in the commission and examine wit- nesses, the names of his witnesses must be inserted in the order and commission.] No. 103. Interrogatories to be Annexed to Commission. Interrogatories to be administered to witnesses in pursunnce of commission annexed : Jrirst. — What is your name, occupation and place of residence ? Second. — Do you know the complainant and defendant in this rause ? How long have you known them ? Declare. APPENBIX OF PEEOEDENTS. 785 Third. — Were the complainant and defendant ever married to each other ? Did they ever live together as man and vifife ? And when and how long ? Were you present at the ceremony of their inter- marriage? Where did it take place, and when? Do you know anything and what in relation to their intermarriage ? Declare fully. Lastly. — Do you know or can you set forth any other matter or thing which may in any wise tend to the benefit of the complainants or any or either of them in this cause ? If so, set forth the same and all the circumstances and particulars thereof according to the best of your knowledge, remembrance and belief, with your reasons at large. J. N., Sol'r for complainant. [Interrogatories are required to be attached to depositions .taken out of the state. Rule 50. The instructions to be annexed to commission are proviJjed for in Rule 52.] No. 104. Notice of Motion to Suppress Deposition. Ch. Rule 54. [Title of cause.] Sir: , Take notice that I intend to move this honorable court on the day of next, at ten o'clock in the forenoon, or as soon thereafter as counsel can be heard at the , in the city of , for an order that the depo- sition of J. M., a witness examined in this cause on the part of the defendant, before C. F., commissioner, on the day of last, be suppressed, and for such further or other order or relief as the court may think proper to grant, which motion will be founded on the bill and answer in this cause. Dated Detroit, June 16, 1881. Yours, etc., To W. N., Esq., Sol'r for defendant. J. E., Sol'r for complainant. 99 786 APPENDIX OF PEECEDENTS. No. 105. Letters Rogatory. State of Michigan, ss. [seal.] The people of the state of Michigan to any judge or tribunal having jurisdic- tion of civil causes at the city of London, England, greeting : Whereas, a certain suit is pending in our court of chancery, in which W. D. is complainant and F. P. defendant, and it has been suggested to us that there are witnesses residing within your jurisdiction, without whose testimony justice cannot be completely done between the said parties, we therefore request you, that in furtherance of justice you will, by the proper and usual process of your court, cause such wit- ness or witnesses as shall be named or pointed out to you by the said parties, or either of them, to come before you, or some competent person by you for that purpose to be appointed and authorized, at a precise time and place by you to be fixed, and there to answer on their oaths and affirmations to the several interroga- tories hereto annexed; and that you will cause the depositions to be committed to writing and returned to us under cover, duly closed and sealed up, together with these presents. And we shall be ready to do the same for you in a similar case, when required. Witness : J. L. C, our chancellor, at the city of Detroit, the — day of , 18—. J. W., Sol'r of complainant. L. L., register. CHAPTEE X. HEARING. No. 106. Notice of Hearing. See p. 164 and Ch. Rule 61. [Title of cause and court.] Sir: Take notice, that the above entitled cause will be brought on for hearing at the next term of said court, on bill and answer [or on pleadings and proofs, or on the demurrer filed therein, or on bill, answer and replication], at the opening of the court on the first day thereof, or as soon thereafter as coun- sel can be heard. Yours, etc., To I. P. W., Sol'r for defendant. A. B. M., Sol'r for complainant. ITO. 107. Note of Issue. See p. 165 and Ch. Rule 64. [Title of cause.] The above entitled cause will be brought on for hearing at tlie next term of this court, notice having been served on the part of the complainant on A. B., solicitor for the defendant. You will please place said cause on the issue docket of this court. This cause belongs to the 1st class, and is to be heard on bill taken as confessed by all the defendants [or belongs to the 2d class, and is to be heard on plea of the defendant, as the case may be], and is entitled to priority from the day of , 18 — . Yours, etc., J. A., Sol'r for complainant. To the Register of said conrt 787 788 APPENDIX OF PRECEDENTS. No. 108. Case and Abbreviation of Pleadings.* See Ch. Rule 65. [Title of cause.] The bill in this cause was filed on the 4th of December, 1880, in the circuit court for the county of . The answer was filed on the 5th of January, 1881, and the replication on the 18th day of January, 1881. The following witnesses were examined on the day of January, 1881, before C. F., a commissioner of this court in pursuance of an order to produce proofs, entered on the day of January, 1881, to wit : A. F. and H. O., on the part of ihe complainant, and R. C, and L. B. on the part of the defendant. The defendant appeared by C. L., Esq., his solicitor, who has died since the commencement of the suit, and W. G., Esq., has been substituted in his place, as solicitor for said defendant. The object of the bill is to procure a conveyance from the defendant of the legal estate in the premises particularly described in the bill, and being lot No. 7, of the Governor and Judges plan. Bill. States that before complainant purchased lot No. 5, John Smith owned the improvements,^ etc. Lot No. 7 was leased to Smith on the • day of , but by an under- standing, etc. On the 2d day of June, 1879, etc. Complainant paid his share of tlie money, etc. Usual charge of confederacy, etc. Answer on oath prayed for. Prayer for injunction; that defendant may be decreed to execute convey- ance; and for general relief. General replication. [1] Ch. Rule 62. Answer. Admitted. But defendant on the day of , purchased of Smith all of the improvements, etc. Denies that by any understanding, etc. Substantially admitted. Denied. General traverse and usual conclusion. J. E., sol'r for comp'lt, APPENDIX OF PRECEDENTS. 789 No. 109. Notice of Motion to Suppress Depositions. ^"0. 110. Submission of Cause.^ [Title of cause.] It is stipulated and agreed that this cause be submitted to the circuit court on written arguments. The complainant's counsel to serve his argument within thirty days, and the defendant's counsel to answer the same and^ submit the cause within thirty days thereafter. Dated, Detroit, June 20. 1881. G. H., sol'r for compl't. W. J., sol'r for drf't. No. 111. Order for Cause to Stand Over to Add Parties [Title of cause.] [Caption. ] This cause coming on to be heard this day, and counsel for both parties, hav- ing in part been heard ; and it appearing to the court that * O. R., and Jane, his wife, are necessary parties to this cause, it is ordered that the same do stand over to the end that the complainant may make the said O. R., and Jane, his wife, parties thereto, either by amendment or supplemental bill, as he may be advised. No. 112. Order for Cause to Stand Over to Supply Proofs. [As in the above to the * then] the complainant has omitted to introduce proof of the death of B. D., 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. (1) Ch. Rule 69. 790 APPENDIX OP PEECEDENTS. No. 113. Decretal Order Retaining Bill with Liberty to Bring an Action at Law. [Title of cause.] [Caption.] This cause having been brought to hearing upon the pleadings and proofs therein, and having been argued by Mr. W. R., of counsel for the complainant, and Mr. W. J., of counsel for the defendant, it is ordered, adjudged and decreed, and this court, by virtue of the power and authority thereof, doth order, adjudge and decree that the bill in this cause be retained for twelve months, with liberty to the complainant, in the meantime to proceed at law touching the matters in ques- tion in this cause, as he shall be advised. And it is further ordered, adjudged and decreed that if the complainant shall commence an action at law and proceed to trial within the time specified, the court reserves the consideration of the costs of this suit, and of all further directions until after such trial shall be had. But in case the complainant shall not proceed at law and go to trial within the time afore- said,' his bill is from thenceforth to stand dismissed out of this court, with costs to be taxed. And in either case any of the parties are to be at liberty to apply to the court, as they shall be advised. CHAPTEE XI. DECREES AND ORDERS. No. 114. General Form of a Decree. See p. 179. [Title of Cause.] [Caption.] This cause having been brought on to be heard on the pleadings and proofs, was argued by counsel for the respective parties : Now therefore, on consideration thereof, it is ordered, adjudged and decreed, and the court doth hereby order, adjudge and decree that [here insert the decree.] Fo. 115. Dismissal of Bill at the Hearing. [Title of Cause.] [Caption.] This cause having come on to be heard upon the pleadings and proofs, and having been argued by counsel for the respective parties, it is ordered, adjudged and decreed that the complainant's bill of complaint be and the same is hereby dis- missed [without prejudice, if so granted,] with costs to the defendant to be taxed. No. 116. Petition to Rectify Decree Before Entering.* Seep. 193. [Title of cause.] The petition of A. B., the above named complainant, respectfully shows that a decree was made by this court in this cause on the day of , by which [state the substance of the decree.] 791 ?d2 iPPteNDIX OB" PEEOEDfilSfTS. And your petitioner further shows unto the court [here state the mistake sought to be corrected. ] That the said decree has not yet been entered by the register, but still remains in the form of minutes. He therefore prays that the minutes of said decree may be so Varied [here state the correction.] And that the said decree thus varied may be entered nunc pro tunc, as of the time the same was origmally pronounced. [The above form will also apply on a petition to rectify a decree for a mere mistake after enrollment.] [Jurat.] * A motion will accomplish the same purpose. No. 117. Petition for a Rehearing After Entering and Before Enrollment. See p. 193, Rule 81. [Title of cause.] To the circuit court for the county of , in chancery. The petition of A. B,. the above named defendant respectfully shows : 1. That on the day of , a decree was made by this court whereby it was among other things ordered that [insert the part of the decree complained of.] 2. That so much of the said decree is erroneous as directs that, etc., because etc. [state reasons in full.] 3. That the said decree has been settled and entered, but has not yet been enrolled. ' Whereupon your petitioner asks that the court will grant a rehearing of this cause, he submitting to pay such costs as the court shall award in case his com- plaint shall be found groundless. [Jurat.] Certificate of Counsel. We certify that we have examined the case referred to in the foregoing peti- tion, and are of opinion that the decretal order therein mentioned, is erroneous in the particulars specified in the said petition. [Signatures.] APPENfilX OF PEECEDENT8. 793 Bo. 118. Petition to Rectify Decree After Enrollment. See p. 197. [Title of cause and address.] That a decree was made in the above entitled cause, before the , on the day of 18 — , by which the above defendant was ordered to pay to your petitioner the sum of five hundred dollars, together with the costs of this suit; that such decree was founded upon the report of J. W., one of the masters of this court, to whom it was referred to take an account between the parties of this suit, and to report what balance was due from either party to ihe oiher; and ihat the said master, in and by his said report, did find the amount due from the defendant to your petitioner to be five hundred and fifty dollars ; yet that in drawing the said decree the words " and fifty" were by mistake omitted in stating the sum reported by said master to be due to your petitioner. And your petitioner further shows that the said decree has been entered and enrolled, and that the said mistake was not discovered by your petitioner until after the enrollment of said decree. And your petitioner therefore prays that the enrollment of the said decree may be opened and the mistake rectified, so that it may conform to the report of the said master in stating the sum to be paid by the defendant to your petitioner. And that your petitioner may have such other, etc. [Jurat.] ]Sro. 119. Order to Stay Proceedings on Filing a Petition of Rehearing. See Ch. Rules 81, 82. [Title of cause.] [Caption.] On reading and filing the petition of the defendant, C. D., praying for a rehearing of the decretal order made in this cause on the day of last, affidavits, etc., and on motion of Mr. W. R., solicitor for said petitioner, no one appearing to oppose, ordered that the complainant show cause on the day of next, at the opening of court on said day, or as soon thereafter as counsel can be heard, why the prayer oi said petition should not be granted ; and that in the meantime all proceedings in this cause, on the part of the complainant, be stayed. 100 794 APPENDIX OF PEECEDENlS. No. 120. Order for Leave to File a Supplemental Bill in the Nature of a Bill of Review. See Ch. Rule 101. [Title of cause.] [Caption.] On reading and filing the affidavit and petition of the complainant in this cause, and on motion of Mr. W. J., of counsel for said complainant, and on hear- ing Mr. R., of counsel for the defendant, it is ordered that upon such complain- ants making such deposit, or giving such security to the defendant as is required by the 83d rule of this court, he be at liberty to file a supplemental bill in the nature of a bill of review to bring before the court the matter stated in such peti- tion relative to tlje new matters discovered since the making of the decree in this cause on the day of , and for relief as he shall be advised. And fur- ther that he be at liberty to have the original case brought on to be reheard, and to come on at the same time with the cause upon such bill. No. 121. Decree by Default. Se- p. 202. [Title of cause.] [Caption.] This i cause having this day been brought on to be heard upon the pleadings and the proofs taken therein [or on the pleadings and proofs as to the defendant, C. D., and on bill and answer as to the defendant, E. F., and on the bill taken as confessed as to the defendant, G. H., and on reading and filing proof of the due service of notice of hearing on the solicitor of the said defendant (*) [or on such of the defendants as have appeared in this cause], and on hearing Mr. W. J. of counsel for the complainant, no one appearing on the part of the defendant, it is ordered, adjudged and decreed, etc. [insert relief authorized by the pleadings.] No. 122. Decree by Consent. See p. 203. [Title of cause.] [Caption.] [As in last form to the *, then add] with the consent of the parties to this suit, and on motion of W. J., of counsel for the complainant, it is ordered, ad- judged and decreed, etc. APPENDIX OF PEECEDENTS. 796 ISO. 123. General Form of an Order. See p. 267. State of Michigan. ) , . r -j _.. v u ^ t^ . -^ JX_ „■ -^ r' ,. c n, At a session of said court held at Detroit on Cou«; S --!'° In Chan'/ery. j ''^^ ^^ "^^^ "^ J— 'y- 1882. Present — Hon. , [Title of cause. ] Circuit Judge. On reading and filing [recite papers on which motion was founded], and on motion of Mr. A. of counsel [or solicitor] for complainant [or defendant], no one appearing to oppose [or, on hearing Mr. C, solicitor for in opposition thereto], it is ordered, etc. No. 124. Seep. 274. Order Nisi. [Title of cause.] [Caption.] On reading and filing the report of C. F., one of the commissioners of this court, of the sale of the mortgaged premises in this cause, and on motion of Mr. J., solicitor for complainant, ordered that the same be confirmed unless cause to the contrary thereof be shown within eight days from the entry of this order. CHAPTEE XII. . EXECUTION OF DECREE. Ko. 125. Writ of Assistance. See p. 459. [See 3 Barb. Ch. Pr., Form No. 199.] No. 126. Ca. Sa. for Costs on Dismissal of Bill. [See 3 Barb. Ch. Pr., Form No. 202.] No. 127. ■Execution in the Nature of a Ca. Sa. to Compel the Performance of a Specific Duty. [See 3 Barb. Ch. Pr., Form No. 205.] 796 CHAPTER XIII. PROCEEDINGS UNDER DECREE. No. 128. Order Directing an Issue of Fact to be Tried by a Jury. See p. 176. Ch. Rule 47. [Title of cause and court.] [Caption.] This cause came on to be heard upon the pleadings filed and proofs taken therein, and the court having heard the arguments of the solicitors for the respect- ive parties, it is ordered that the following issues of fact be made and tried at the term of the court to be held in the county of , or as soon thereafter 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 ? 2. Was, etc. [here state any other fact to be tried by the jury, and so on.] No. 129. Notice of a Sale by a Circuit Court Commissioner. See p. 149. [Title of cause.] In pursuance of a decretal order of the court of chancery, made in the above cause, will be sol 1 under the direction of the subscriber, at public auction, at the City Hall, in the city of Detroit, on Tuesday, the day of next, at 10 o'clock A. M., all those certain premises [describe property.] Dated, . C. F., Circuit Court Com. 797 798 APPENDIX OF PRECEDENTS. No. 130. Order Confirming Report of Sale. See p. 157. [Title of court and cause.] [Caption.] On filing the commissioner's report of sale of the premises described in the bill of complaint entered in this cause, and on molion of , solicitor for the said complainant, it is ordered that said sale antl all things thereto pertaining, be and stand confirmed, unless cauSe to the contrary be shown wiihin eight days from this date. , Register in chancery. , Sol'r for compl't. :No. 131. Exceptions to Commissioner's General Report. See p. 138. [Title of cause.] Exceptions taken by J. B., one of the above defendants, to the general report of C. X., the commissioner to whom this cause was referred, by the decree made herein, on the day of , 1882, and which report bears date the day of , 1882. First Exception. — For that the said commissioner, etc. Second Exception.— Yox that the said commissioner, etc. Wherefore the said defendant doth except to the said general report, and appeals therefrom to the judgment of this court. P. C, solicitor for deft J. B. C. S., of counsel. APPENDIX OF PKEOEDENTS. 799 No. 132. Order to Confirm Report so Par as not Excepted to. See p. 138. [Title of cause.] [Caption.] On the filing of the general report of C. X., the master to whom this cause WIS heretofore referred; and on readijig and filing the exceptions taken by the complainant to certain parts thereof, on motion of W. J., solicitor for said com- plainant, ordered, that such report be confirmed, so far as the same is not excepted to ; unless cause to the contrary thereof be shown within eight days from the entry of this order. CHAPTER XIV. FURTHER DIRECTIONS. No. 133. Notice of Hearing for Further Directions, upon Commissioner's Gen- eral Report. See p. 255. [Title of cause ] Sir : Take notice that this cause will be brought to a hearing for further directions upon the general report of C. F. B., the master to whom the said cause was heretofore referred, at the next term of this court to be held at , in the city of Detroit, on the day of next, at 10 o'clock in the forenoon, or as soon thereafter as counsel can be heard. Dated, etc. Yours, etc., To A. R., Esq., sol'r for deft. W. M., sol'r for compl't, 800 CHAPTER XV. APPEALS. No. 134. Claim of Appeal. Seep. 215. [Title of cause.] The said defendant [or complainant'\ hereby claims the benefit of an appeal to the biipri me court fr. m the decree [or final order'] rendered in said cause by said court on the day of . T. R., sol'r for defendant. To the Register of said court. Dated . Note. — Where both parties appeal each will use the above form, give notice, and file bond, etc. No. 135. Notice of Appeal. >^ See p. 217. [Title of cause.] Sir: Take notice that the defendant in the above cause has appealed to the supreme court from the decree [or order] made therein, on the , 1882, by the circuit court for the county of Wayne, in chancery, and that a bond for costs and damages upon said appeal, in the penalty of |S250 [or that a bond for costs, and to stay the proceedings] with A. B. and C. D. of, etc., as sureties, has been duly filed, and that an application will be made on the day of , 1882, to E. F,, a circuit court commissioner [or a circuit judge], at his office in Detroit, on the day of , 1882, at 10 o'clock in the morning for an approval of such bond and the sureties proposed. Dated Dec. — , 1882. Yours, etc., To M. W., Esq., sol'r for complainant. C. H. F., sol'r for appellant (1) Note.— The notice must be for 6 days. Laws of 1877, p. 7. 101 801 802 APPENDIX OF PKECEDiiJSTS, No. 136. Bond on Appeal. See p. 218. Know all men by these presents, that we, A. B., principal, and C. D. and E. F., sureties, are held and firmly bound unto E. A., in the sum of , lawful money of the United States of America, to be paid to the said G. H., or to his certain attorneys, heirs, executors, administrators or assigns, to which pay- ment well and truly to be made, we bind ourselves, our heirs, executors and admin- istrators, and each and every of them firmly by these presents. Sealed with our seals, datjd the day of , 1882. Whereas, the above named A. B., hastappealed to the Supreme Court of the state of Michigan from a decree (or final order) of the circuit court for the county of in chanceiy, made on the day of , in a cause in said court in which A. B. was complainant and C. D. was defendant. Now, therefore, the condition of this obligalio* is such thst if the said appel- lant shall diligently prosecute the said appeal and shall perform and satisfy the decree or final order of the Supreme Court in said cause, and shall pay all the costs of the appellee in the matter of said appeal as the supreme court shall award, then this obligation to be void, otherwise to remain in force. Sealed and delivered in 1 [SEAL.] presence of . / [seal.] Note. — The law of 1877, p. 7, requires that said bond shall have sufficient sureties to be approved by the circuit judge or circuit court commissioner of the county, and with such penalty as such judge or commissioner shall approve. INTERLOCUTORY APPLICATIONS. No. 137. Motions. See p. 258, APPENDIX OP PRECEDENTS. 803 Ko. 138. Notice of Motion, See p. 259. [Title of cause.] Sir : Take notice that I intend to move sa'd court on the day of next, at the opening of the court on that day, or as soon thereafter as counsel can be heard, for an order that [specifying the object of the motion,] and for such further or such other order or relief as the court may think proper to grant ; which motion will be founded on affidai its with copies of which you are herewith served, [and on the bill and answer filed in this cause.] Dated, Dec. 1882. Yours, etc.. To G. C, Esq., sol'r for compl't. S. J., sol'r for deft. lio. 139. Affidavit of Service of Notice of Motion. See p. 260. [Title of cause and court.] [Venue.] W. F., of the city of Detroit, in said county, the defendant's solicitor, being duly sworn, deposes and says, that on the day of , instant, this depo- nent served upon C. F., Esq., the solicitor for the complainant in this cause, copies of the affidavits and notice of motion hereto annexed, by delivering the same to him personally, [or by leaving the same in the office of the said C. F. , with J. W., a clerk, who had charge of the same, during business hours, or by putting the same into the post office at . properly enclosed in an envelope directed to the said C. F., at , his place of residence, and paying the postage thereon,] and further says not. Sworn, etc. W. F. No. 140. Petition for Leave to Sue In Forma Pauperis. JSee 3 Barb, Ch. Pr. Form 251.] 804 APPENDIX OF PEECEDENTS. No. 141. Special Jurat in No. 140. [See 3 Barb. Ch. Pr. Form 251.] No. 142. Certificate of Counsel in No. 140. [See 3 Barb. Ch. Pr. Form 251.] No. 143. Order to Prosecute In Forma Pauperis. [See 3 Barb. Ch. Pr. Form 254.] No. 144. General Form of an Affidavit. See p. 280. [Title of cause.] State of Michigan. "1 Wayne County. f D. A., of Detroit, in said county, shoemaker, being duly sworn, deposes and says, that at, etc. And further deponent saith not. Sworn to, etc. D. A. CHAPTEE XVI. INJUNCTIONS. I(o. 145. Order for Temporary Injunction. See p. 291. [Title of cause.] [Caption.] On reading and filing the bill of complaint in this cause, aflSdavits, etc., and on motion of J. B., solicitor for complainant, ordered that the defendant show cause at the' opening of court to be held at , on the day of next, why a general injunction should not issue against him as prayed for by the said bill of complaint, and th^t in the meantime a temporary injunction be issued in this cause, according to the prayer of the said bill. ISO. 146, Preliminary Injunction. See p. 290. State of Michigan. i t t. In the Circuit Court for the Cointy of j " ^'^ chancery. In the name of the people of the State of Michigan : To C. D., and to your counsellors, attorneys, solicitors and agents, and each and every of them, Greeting : Whereas, it has been represented to us in the circuit court for the county of , in chancery, on the part of A. B., complainant, that he has lately exhibited his bill of complaint against you, the said C. D., defendant, to be relieved touch- ing the matters therein complained of, in which bill it is stated, amongst other 805 806 APPENDIX OF PEECEDENTS. things, that you are combining and confederating with others to injure the said complainant touching the matters set forth in the said bill, and that your actings and doings in the premises are contrary to equity and good conscience ; we there- fore, in consideration thereof, and of the particular matters in the said bill set forth, do strictly command you, the said C. D., and the persons before mentioned and each and every of you, under the penalty of ten thousand dollars, to be levied on your lands, goods and chattel, to our use, that you do absolutely desist and refrain from until the further order of this court. Witness, the honorable C. H. S., circuit judge, and the seal of said circuit court of , this day of , 1882. J. W., sol'r for compl't. A, H. R., register. Bo. 147. Perpetual Injunction. [See 3 Barb. Ch. Pr. Form No. 264.] CHAPTEB XVII. NE EXEAT. No. 148. AfGidavit to Obtain a Ne Exeat. See p. 326. [Title of cause.] Venue, [-m. J. H., the above complainant, being duly sworn, deposes and says, that the above defendant is justly indebted to this deponent in the sum of $—, for [state the cause of indebtedness] ; for the recovery of which he has lately exhibited his bill in this court, against the said defendant ; to which bill the said W L. has not yet appeared ; and that being so indebted, he, the said defendant, has lately threatened and given out, that he will speedily leave this state and go into the state of Florida. And this deponent verily believes, that if the said defendant should be suffered to leave this state, this deponent will either lose his said debt, or the same will be very much endangered, and it will be difficult if not impossi- ble for this deponent to recover the same. Sworn, etc. J. H. See doubts expressed as to power to issue this writ in Michigan, p. 329. Ifo. 149. Ne Exeat. See p. 324. [L. s.] People of the state of Michigan to the sheriff of the county of Wayne, greet- ing : Whereas, it is represented to the court of , on the part of W. D., complainant, against M. B., defendant (among other things), that he the said defendant is greatly indebted to the said complainant, and designs quickly to go into parts without this state, as by oath made on that behalf appears, which tends 807 808 APPENDIX OF PEECEDENTS. to the great prejudice and damage of the said complainant. Therefore, in order to prevent this injustice, we hereby command you that you do, without delay, cause the said M. B. personally to come before you and give sufficient bail or security, in the sum of $ — , that the said M. B. will not go, nor attempt to go, into parts without our state, without leave of our said court. And in case the said M. B. shall refuse to give such bail or security, then you are to commit him, the said M. B., to the common jail of your county, there to be kept in safe custody until he shall do it of his own accord ; and when you have taken such security, you are forthwith to make and return a certificate thereof to us, in our said court of chancery, distinctly and plainly under your hand, togetW with this writ. Witness, etc. . CHAPTEE XVIII. RECEIVERS. No. 150. Notice of Motion for Order of Reference to Appoint a Receiver. See p. 317. [Title of cause.] Sir: Take notice that it be referred to one of the masters of this court residing in the county of , to appoint a receiver of the rents and profits of the estate [or of the estate, property and effects] of the defendant, W. L., referred to in the pleadings in this cause, wilh the usual powers and upon the usual direc- tions ; and for such other, etc., which motion will be founded upon [the plead- ings in this cause and upon] affidavits with copies of which you are herewith served. Dated, etc. To C. D., Esq., Sol'r for deft. M. B. T., Sol'r for compl't. LSee 3 Barb. Ch. Fr., Form 275 to 241.] 102 809 CHAPTEE XIX. ABATEMENT AND REVIVOR. ]S"o. 151. Affidavit for Revivor of Suit. See p. 332. 2 Comp. L., §§ 5100-5114 Note. — [Where cause of action survives, set forth briefly the pleadings, and the death of the party, and whether he died intestate.] [Where it becomes necessary to make the representatives of the complainant or defendant parties, set forth the facts in the petition and give notice.] [See 3 Hoffman Ch. Pr., Forms 120 to 128 ; also 3 Barb. Ch. Pr., Forms 282 to 293.) Ko. 152. Petition to Revive by Representative's Deceased Complainant. [Title of court and cause.] The petition of C. F. and M. B. of the city of Detroit, executors of J. M., late of the same place, deceased, respectfully shovi^s : That the said J. M. on or about »the day of exhibited his bill in this court against B. Z. and A. G., stating therein in subftance [state the general object of the bill] and praying [prayer at length.] That the said B. Z. and A. G. appeared and filed their joint and several answer to such bill, and that before any further proceedings were had in such cause the said J, M. departed this life having first made and published his last will and testament in due form of law, and therein appointed your petitioners the executors thereof, who have proved such will and testament, and taken upon themselves the execution thereof, 810 APPENDIX OF PRECEDENTS. 811 And your petitioners are advised that such cause has become abated by the death of J. M., and that they are entitled to i-evive the same as his representatives. Your petitioners therefore pray, tiiat they may be made complainants in the said suit in the place of the said J. M., and that such suit, and ihe proceedings had therein, may stand revived, and be in the same plight and condition as they were in at the death of the said J. M. And your petitioners, etc. [Jurat.] CHAPTBE XX. Fo. 153. Pure Bills of Revivor. See p. 340. [For want of space the student is referred for a variety of forms to 3 HofF. Ch. Pr., Form 129-132; 3 Barb. Ch. Pr. Form 295-304, 313, 317 ; 3 Dan. Ch. Pr., p. 2036-2071.] 'No. 154. Petition for Leave to File Supplemental Bill. See p. 359. Ch. Rule 44. [Title of cause and court.] The petition of A. B., the above complainant, respectfully shows : 1. That on or about the day of , your petitioner filed his bill in this court against C. D., for the purpose of [state general object of original bill] and praying [state the prayer verbatim.] 2. And your petitioner further shows that the said C. D., being served with process of subpoena, appeared to the said bill but has not yet put in his answer thereto. That after the appearance of the said defendant was entered, that is to say on or about the day of , and before any further proceedings were had in the said cause [state the supplemental matter] ; wherefore your peti- tioner is advised that it is necessary to bring the said G. R. before this court as a party defendant to this suit. 3. Your petitioner therefore prays that leave may be granted to him to file a supplementnl bill against the s-iid G. R. for the purpose of making him a party defendant to this suit, wiih proper and apt wnvds to charge him as such and with such prayer for relief as may be proper, and for such other, etc, [Jurat,] 812 APPENDIX OF PEBCEBENTS. 813 No. 155. Frame of a Supplemental Bill.*^ See p. 362. [Title of cause and court.] 1. That your orator, on or about the day of last, exhibited his original bill in this court against W. R., stating in substance, among other things, [the scope and material allegations of the bill briefly], and praying [the prayer at length.] 2. And your orator further shows that the said W. R. appeared and filed his answer to such bill, and your orator replied to the same. 3. And your orator further shows, by way of supplement, [leave of this court having been first granted thereof], that before any proceedings were had in such case [state the facts rendering the supplemental bill proper.] 4. And your orator is advised that he is entitled to the same relief against the said D. R. as he would have been entitled against the said J. N.* To the end therefore [the usual interrogating], and that your orator may have the full benefit of such suit and proceedings against the said [the new party] and may have the same relief against him as he might or would have had against the said [the original party], or that your orators may have such further and other relief in the premises as the court shall seem meet. May it please your court to grant [pray subpoena against the new party or one brought in by the bill. If the bill is against the old parties on new subsequent matters, the clauses pray- ing the full benefit of the suit, etc., will be omitted, and the prayer be in the usual form.] 1 See Ch. Rule 44 as to necessary statements. No. 156. Demurrer to Supplemental Bill. See p. 364. [Title of cause and court.] The demurrer of C. D., defendant, to the supplemental bill of A. B., complainant. This defendant [as in No. 33 to the * then] that this defendant, as appears by the said supplemental bill, is not a party to the original bill therein in part 814 APPENDIX OF PEECiDENTS. stated and set forth ; nor does it appear by the said supplemental bill that any new matcer has or i^ pretended to have arisen since the said orignial bill was filed, or ihat there is any reason why this deiendant should not if necessary be made a p .rty thereto by amendment. Wherefore, etc. [as in No. 33.] No. 157. Plea to Supplemental Bill. See p. 365. [Title of cause and court.] The plea of C. D., defendant, to the supplemental bill of A. B., complainant. [As in No. 33 to the (f) then] the several matters and things in the said complainant's present bill stated and set forth by way of supplement, arose and were well known to the said complainant, before and at the time the said com- plainant filed his original bill in this cause ; and that such said several matters and things can now be introduced and ought so to be if necessary by amending the said original bill. Wherefore [conclude as in No, 33.] CHAPTEE XXI. BILLS OF REVIEW. No. 158. Bill of Review for Error of Law and on Discovery of New Matter. See p. 369. Ch. Rule lOI. [See 3 Barb. Ch. Pr., Form 318 to 324; 3 Hoff. Ch. Pr, 209-211.] No. 159. Bill of Discovery See p. 378. [Obsolete in this state. See 3 Barb. Ch. Pr., Form 325-234.] No. 160. See p. 380. Bill of Interpleader. [Form of bill and decree, see 3 Barb. Ch. Pr. Forms 335, 336.] 815 CHAPTEE XXII. No. 161. Cross Bill. As to when a cross-bill should be filed, see p. 389, and Ch. Rule 20. [Form of bill, see 3 Barb. Ch. Pr. No. 344 ; 3 Dan. Ch. Pr. p. 2073.] No. 162. Notice of Motion for Order to Stay Proceedings in Original Suit. Original bill. A. , B. V. CD. C. D. V. A. B Cross-bill. Sir : Take notice that I intend to move this honorable court at the circuit court room in the city of , on the day of next, at the opening of the 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 above 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] certificate of counsel thereto annexed. Dated, etc. Yours, etc., To W. J„ Esq., sol'r for A. B. W. R., sol'r for C. D. 816 APPENDIX OP PEECEDENTS. 817 No. 163. ' Order to Stay Proceedings in Original Suit. See p. 389. [Title as in last form.] On reading and filing the cross-bill of C. D. to the bill of complaint of A. B., and the affidavits thereto annexed, and on motion of W. R., solicitor for the said C. D., and on hearing W. J., solicitor for the said A. B., in opposition thereto, it is ordered that all further 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 biU filed against him by the said C. D. No. 164. Order that Original and Cross.Bill.be Heard Together. A. B. V. CD. CD. V. A. B. Original bill. Cross-bill. On reading and filing affidavits showing that both' the above 'causes are at issue and ready for hearing, and on motion of J. E., solicitor for C. D., the complainant in the cross-bill, ordered that the said causes be brought on for hear- ing together ; promded that 'the hearing upon the original bill shall not be delayed by any delay or neglect to proceed on the part of the complainant in the said cross-bill. No. 165. Judgment Creditor's BiU. See p. 403. Ch. Rules 102, 109. [Title of cause and court.] A. B., complainant, of Detroit, Michigan, respectfully shows unto the court as follows ; 103 818 APPENDIX OF PEEOEDBNTS. 1. That heretoiore, to wit, on the day of , 188 — , in the circuit court for the county of , he recovered a judgment against C. D., for the sum of , damages and as costs, as by the record of said judgment, reference being thereto had, will more fully appear. 2. That the said judgment remaining in full force, and the said damages and costs remaining unpaid and unsatisfied, your orator oh the — day of — , in the year 1882 for the purpose of obtaining satisfaction thereof, sued out of said court a writ of fieri facias, directed to the — of the — in which said judgment debtor then and now resides, which writ was duly endorsed with the date and amount of said judgment, and by W. J., as plaintiff's attorney, by which the said C. D. was com- manded, that of the goods and chattels, and for want thereof, then of the lands and tenements of the said C. D., he should cause to be made the said sum for damages and costs recovered as aforesaid, and that he should have that money before said court, at the court house in , on the day of , in the year 188—, and that he shouU have then and there that writ. 3. That afterwards, on the day of , 188—, the said writ of fieri facias was delivered to said C. D. to be executed in due form of law. That on the day of , 188— , the said C. D. returned on the said writ that etc., as by the said writ and the return of said C. D., thereon endorsed as aforesaid, filed in the office of the clerk of said court, on the day and year last aforesaid, will more fully appear. , 4. That said judgment still remains in full force and effect, not paid, vacated, reversed, or satisfied, and that there is now actually and equitably due to your orator upon said judgment the sum of , together with interest thereon from the day of , 188 — , over and above all just claims against the same by way of set-off or otherwise. 5. That he has reason to believe and does believe, that the judgment debtor of the judgment aforesaid has equitable interests, things in action or other prop- erty of the value of upwards of hundred dollars, exclusive of all prior just claims thereon, which your orator has not been able to discover and reach by exe- cution on said judgment. And that as he has been informed and believes to be true, the said judgment debtor has a considerable amount of money and of legal and equitable debts, claims and demands due to him from different persons (whose names are unknown to your orator,) and that he has a large amount of real estate, leasehold interests, contracts for land, and other interests, legal and equitable, in real estate, stocks of different kinds, boats, vessels, money, and other personal property, either in possession or held in trust, for him, (except such trust as has been created by or the fund held in trust has proceeded from some person other than the said,) the situation, value and particulars of which are unknown to your orator ; and your orator is fearful that the said C. D., will make way with or place the same beyond the control of this court or a court of law. APPENDIX OP PEECEDENTS. 819 6. That this bill is not exhibited by collusion with the said judgment debtor or any other persons whatever, or for protecting the property or effects of said judgment debtor, or any other persons, or any part thereof against the claims of other creditors, but for the sole purpose of compelling the payment and satisfac- tion of the complainant's own debt. 7. To the end therefore, that the said [usual clause] and that they may answer and set forth all the estate, real and personal, of every description, goods, chattels, money, book accounts, due-bills, promissory notes, bonds, mortgages, judgments, and other choses in action, and each of them belonging to the said C. D., as well at the time of issuing sxA fieri facias as at the time of filing this bill, whether standing in his name, or in the name or in the hands of any other per- son or persons, for his use, or in trust for him, either express or implied, (except the trusts hereinbefore excepted,) and what disposition has been made of each of the same, and when, fully and particularly, and the amount, condition, situation and value of each of them, the names and places of residence of the debtors res- pectively, and the evidence of their indebtedness, and that they may set forth and state how much is due on each of such demands, and which of them are good and collectable, and which of them are doubtful, and which of them are bad, and who has the possession, custody or control of the said real and perfonal estate, goods and chattels, book accounts, dije-bills, promissory notes, bonds, mortgages, judgments, and other choses in action, and each of them ; and that a receiver of the money, property and things in action of the said C. D., with the usual powers and authority, may be appointed by the order of this honorable court, and that the said C. D. may be directed to assign, transfer and deliver to the said receiver upon oath, under the direction of a of this court, all his property, equitable inter- est, things in action, money and effects, and all the books and papers relating thereto, and the evidences thereof; and that your orator may have satisfaction of the sum due to A. B., on the said judgment, together with the costs and charges in this behalf, out of the said money, property, equitable interests, and things in action, of the said C. D. 8. That the said C. D., [injunction clause.] And that the said C. D. may be decreed to pay your orator his costs and charges in this behalf most wrongfully sustained, or that your orator may have such other, or further relief in the premises or both, as shall seem meet, and shall be agreeable to equity and good conscience. 9. May it please the court to grant unto your orator [prayer for injunction and subpoena.] And your orator will ever pray, etc. W. J., sol'r for compl't. A. B., complainant. [Jurat.] [The court mav t; point a receiver on such bill, or refer it to a commissioner. —See Ch! Rules 104, 109. See 3 Barb. Ch. Pr. Forms 352, 359.] ' flj U. S. Ct. Eq. Rules 8 toll. 820 APPENDIX OP PEECEDENTS. No. 166. Bill in Aid of an Execution to Remove a Fraudulent Conveyance. [See Puterbaugh's Ch. Pr., Form No. 149.] No. 167. Bill for Specific Performance. [See 3 Dan. Ch. Pr. p. 1889, and Hughes' Eq. Forms, Chap. II., p. 9.] No. 168. Foreclosure in Chancery. See p. 418. Ch. Rule 91, State of Michigan. To The Circuit Court for the County of In Chancery. Your orator, A. B., of Detroit, Michigan, complains of C. D., of the same place, and respectfully shows to the court : 1. That on or about the day of , 188 — , he did make and execute under his hand and deliver to your orator a certain note [o'r bond] as in and by said note ijow in the possession of your orator and ready to be produced and proved as this dourt shall direct, and to vi^hich, vi^hen produced and proved, youi orator for greater certainty prays leave to refer, will more fully and at large appear. 2. That the said C. D. on the day of , 188 — , in order to secure to your orator the payment of the said sum of money mentioned in said note, together with the interest thereon, in manner aforesaid, did execute under his hand and seal, acknowledge and deliver to your orator a certain indenture of mortgage, bearing date the day and year last aforesaid, and thereby for the consideration of ^5,000, lawful money of the United States, to him in hand paid, the receipt whereof was by the said indenture of mortgage duly confessed and acknowledged, the said A, B., the party of the first part, in and to said indenture of mortgage, did grant, bargain, sell, release APPENDIX OF PEECEDENTS. 821 enfeoff and confirm unto said defendant, the party of the second part, in the said indenture, and to his heirs and assigns, forever, all that certain piece or parcel of land situated in the of , county of Wayne, and State of Michigan, and described as follows, viz : [Describe premises as in mortgage.] 3. That said indenture of mortgage was upon the express condition that the same should be null and void if the said party of the first 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, or 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. That the execution of said mortgage was on the day of , A. D. 188 — , duly acknowledged by the said defendant before a notary public duly authorized to take such acknowledgment, the certificate of such acknowledgment being duly endorsed on said mortgage. 5. That afterwards, to wit, on the day of , 188—, the said inden- ture of mortgage, together with the certificate of acknowledgment thereof, was in due form of law recorded in the ofEce of the register of deeds in the county of . in liber — of mortgages, on ps^es . [If there are other parties to the note, or if the grantees of the premises have assumed the payment of the mortgage, or if the mortgage has been assigned, state the fact and insert proper parties.] 6. That there is now due and unpaid on the said note and said indenture 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 orator claims that by the filing of this bill the same has now become due and payable to your orator in addition to the sum above men- tioned. 7. That no proceedings at law have been had to recover the debt secured by the said note and mortgage, or any psirt thereof. 8. And your orator further shows unto the court that he has caused examina- tions to be made of the record of dee'ds and mortgages in the office of the register of deeds for the county of Wayne, where said mortgaged premises are situated, and from which said several examinations it appears, and your orator expressly charges the fact that A. B. and C. D., have, or claim to have rights and interests in the described premises in the said indenture of mortgage, or in s ome part or parts thereof, as subsequent purchaser or incumbrancer, or otherwise. 9. Your orator therefore asks the aid of this court in the premises, and that the above named^ A. B., the defendant in this suit, may appear and answer 822 Af tENDIX OP PKECEDil^TTS. thisj^your orator's bill, without, oath (the answer on oith being hereby expressly waived), and that he may come to a fair and just account touching the amount due to your orator, upon the said note and indenture of mortgage hereinbefore mentioned and set forth. 10. That he or some of them may be decreed to pay forthwith to your ora- tor 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. That in default thereof the defendant herein named, 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. That all and singular the said mortgaged premises, with the appurten- ances may be sold by the order and decree and under the direction of this court, and the moneys arising from the sale thereof, so far as shall be necessary, or so far as the same shall extend, be applied towards satisfying to your orator the full amount of the moneys so as aforesaid secured in and by the said note and indenture of mortgage, both principal and interest, if the whole shall then be 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 ora- tor's reasonable costs and charges, may be sold as aforesaid, and the proceeds to be applied thereto as aforesaid. 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 con- cerned, that then the whole of the said mortgaged premises, with the appurtenan- ces, may be sold as aforesaid, and the proceeds of such sale be applied as well to the discharge of the principal and interest moneys then due, and your orator's costs and charges, as towards 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 ora- tor's costs and charges, to be put out at interest under the direction of this court, for the benefit of your orator to be paid to him as the remainder of said principal and interest moneys shall become due and payable, and the surplus, if any, for the benefit of the person or persons who may be entitled thereto. 15. 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 thereof to your orator or to whomsoever shall become the APPENDIX OF PEECEDBNTS. 823 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 the said mortgaged premises, or any part thereof, tlie deed or deeds executed by the commissioner ■ pursuant to such sale as aforesaid, and a certified copy of the order confirming the report of such sale after such order has become absolute. 16. That the said defendant [and other parties liable on the note] pay to your orator any balance that shall remain due to your orator of the principal and interest of said note and indenture of mortgage, if the sale of said mortgaged premises as aforesaid fail to produce sufficient to pay the whole of said mortgaged debt, and the costs of this suit, and that, in such case, your orator have execution for the collection of such balance and the costs thereon, according to the rules and practice of this court. 17. And that your orator may have such other relief or such rehef in the premises as shall be agreeable to equity and good conscience. 18. [Prayer for subpoena.] And your orator will ever pray, etc. No. 169. General Order Pro Confesso and Reference. [See Form No. 9.] No. 170. Decree iti Chancery of Foreclosure and Order of Sale. Ch. Rule 92. [Title of cause and court.] [Caption. ] This cause having been brought on to be heard on the bill of complaint filed therein, taken as confessed by the said defendant, and the report of C. F., a cir- cuit court commissioner for the county of Wayne, to whom, by an order of this court, heretofore made in this cause, it was referred to ascertain and compute the amount due to the complainant on the note and mortgage mentioned and set forth in the bill of complaint having been duly made and confirmed, and which report bears date the day of , A. D. 18 — , and due proof of the regu- larity of the proceedings had in this cause, so taking the said bill of complaint as 824 APPENDIX OF PRECEDENTS. ccaifessed, having been made and presented, after hearing the arguments of coun- sel, on motion of D. M. D., solicitor and of counsel for the said complainant, it is ordered, adjudged and decreed, and this court, by virtue of the authority therein vested, doth order, adjudge and decree that there was due to the complainant, at the date of said report, upon the note and mortgage mentioned and set forth in the bill of complaint, for principal and interest, the sum of , and that the said defendant is personally liable for the payment thereof ; that the said defend- ant pay, or cause to be paid, to the said complainant or to his solicitor, the sum so as aforesaid decreed to be due to the complainant with the interest thereon, at the rate of [amount stated in security] per cent, per annum, from the date of said report, and the costs of the said complainant by about suit in this be- half expended, to be taxed, together with the sum of dollars, as- a reasonable solicitor's fee for the proceedings taken and had in this cause to foreclose the mortgage aforesaid, on or before the day of , 1882; and in default thereof, that all and singular the said mortgaged premises mentioned in the bill of complaint in this cause, and hereinafter described, or so much thereof as may be sufBcient to raise the amount so as aforesaid decreed to be due to the complainant with the interest thereon and the costs in this case, the solicitor's fee aforesaid, and the costs and expenses of sale, and which may be sold separately without material injury to the parties interested, be sold at public auction, by or under the direction of a circuit court commissioner for the county of Wayne, at any time after the said day of 1882 ; that the said sale be made in the county of ; that the said commissioner give public notice of the time and place of such sale, according to the course and practice of this court atid the statute in such case made and provided, 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 purchasers of the said premises on the said sale ; and that the said commissioner, out of the proceeds of said sale, pay to the complainant or to his solicitor his costs in this suit to be taxed, and also the amount so decreed to be due as aforesaid, and the interest thereon, at the rate of per cent, per annum from the date of this decree, together with the solicitor's fee aforesaid, or so much thereof as the amount realized from the sale of the premises aforesaid will pay of the same ; and that the said commissioner take receipt for the amounts so paid, and file the same with a report of such sale and his doings thereon ; and that he bring the surplus moneys arising from said sale, if any there be, into this court, without delay, to abide the further order of this court. And it is further ordered, adjudged and decreed, that the defendant and all persons claiming or to claim from or under him be forever barred and forecloserl of and from all equity of redemption and claim, of, in and to the said mortgaged premises so sold, and every part and parcel thereof. And it is further ordered, that the purchaser or purchasers of. the said mort- gaged premises at such s^le be let into possession thereof, and that any of the APPENDIX OP PEEC3EDENTS. 825 parties to this cause, who may be in possession of the said premises, or any part thereof, and any person who, since the commencement of this suit has come into possession under them or either of them, deliver possession thereof to such pur- chaser or purchasers, on production of the deed of the said commissioner for such premises, and a certified copy of the order confirming the report of such sale after such order has become absolute. And it is further ordered, that if the moneys arising from said sale shall be insufficient to pay the amount so as aforesaid decreed to be due to the complain- ant with the interest thereon and costs and expenses of sale as aforesaid, that the said commissioner specify the amount oi such deficiency in his report of said sale. The description and particular boundaries of the property authorized to be sold under and by virtue of this decree are as follows, viz : As to Time of Sale, see Rule 92 As to Solicitors' Fees, see pp. 453, 454. No. 171. Affidavit of Regularity. See p. 442. [Title of cause and court.] [Venue.] A. B., solicitor of the complainant in the above entitled cause, being duly sworn, doth depose and say, that the said bill of complaint was filed with the register of this court, on the day of , 188 — , for the purpose of fore- closing a certain indenture of mortgage, made by C. D., defendant, to the com- plainant upon certain real estate, situate in the county of -, that the said bill has been taken as confessed by said defendant, and that all the proceedings to take said bill as confessed have been regular and according to the rules and prac- tice of this court. [Jurat.] [Signature.] l^O. 172. Petition for Decree of Deficiency and Execution. [Title of cause and court.] [Caption.] To THE Circuit Coxtrt for the County of . In Chancery. Your petitioner, A. B., respectfully shows unto this honorable court that he is the above named complainant; that on the day of , A. D. 18 — , at the of , in the county of , in pursuance of the decree of foreclosure and sale theretofore made in this cause, the premises described and ordered to be 104 826 APPENDIX OF PEBCKDENTS. sold in said decree were by C. D., a circuit court commissioner for the county of , sold at public auction for the sum of ^2,000 ; that- the report of the said commissioner of the said sale and of his doings thereon has been duly made and confirmed ; that from the said report it appears that the amount realized from the sale of the premises aforesaid was insufficient to pay the sums in the said decree ordered and decreed to be paid, and that there was at the date of the said report due and unpaid to the complainant over and above the amount paid to him by the said commissioner the sum of ?500, which said deficiency still remains un- paid. Your petitioner therefore prays that the said defendant, E. F., who has been adjudged personally liable in this cause, be decreed to pay the deficiency afore- said, and that yolir petitioner have execution therefor. And that your petitioner will ever pray, etc. [Jurat.] [Signature.] W. J., solicitor for complainant. »"o. 173. Decree for Deficiency and Execution.* See p. 463. [Title of cause and court.] [Caption.] In this cause the report of the circuit court commissioner who conducted the sale of the premises described in the decree of foreclosure and sale hereto- fore made herein, of such sale, and of his doings thereon, having been duly made and confirmed, from which it appears that the amount realized from the sale of the premises aforesaid was insufficient to pay the sums in, said decree ordered and decreed to be paid, and that there was at the date of the said report due and unpaid to the said complainant, over and above the amount paid to him by the said commissioner the sum of dollars and cents. On filing the petition of the above named complainant, showing that such deficiency remains due and' unpaid, and praying that execution may issue therefor, and on motion of D. W. D., the solicitor for the said com olainant : It is ordered and decreed, that the said defendant who has been heretofore adjudged and decreed to be personally liable for the mortgage debt menUoned and set forth in the bill of complaint in this cause, do pay to the said complain- ant the amount of such deficiency so as aforesaid reported to be due and unpaid, with interest thereon at the rate of per cent, per annum from the date of said report, and that the said complainant have execution therefor. * Note.— This decree will not be granted without a special application a/ier the sale, see form 172; Howe v. Lemon, 37 Mich. 184. CHAPTEE XXIII. ]Sro. 174. Bill to Redeem. See p. 4G4. [See 3 Barb. Ch. Pr. form 387, and for decree, form 388, and 3 Dan. Ch. Pr. p. 1918.] No. 175. Notice of Claim of Mechanic's Lien.* To all whom it may concern : Take Notice : That I intend to claim a lien upon the following premises, the tenements and appurtenances 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 A. B. as owner (or other- wise), claiming an interest in said premises, and C. D. as contractor (for building or repairing, putting in machinery, etc., as the case may be.) Which premises are described as follows : (Give proper real estate description.) C. D.. contractor, (or as the case may be,) No. 176. See p. 508. Bill for a Mechanic's Lien on Written Contract. State of Michigan. To the Circuit Court for the County of Wayne. — In Chancery. Your orator, B. F., of etc., respectfully represents unto the court : 1. that he is by occupation a contractor and builder; that on, elc, one W. K., of, etc., applied to your orator to build for him a store upon the premises ♦Laws of lf-79, p 275, § 2. 827 828 APPENDIX OF PEECEDENTS. hereinafter named, and thereupon your orator and the said W. K. entered into a written contract, with drawings and specifications attached, in the 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 thereof. 2. That immediately after the making of said contract, and in compliance with the terms thereof, he commenced work under the same, on the following described premises, to wit '. [here describe the premises on which building was erected,] the said W. K. being, at the time of the making of the said contract, and still is, the owner of the said premises. 3. That in compliance with the said contract within the time therein speci- fied, he erected and finished for the said W. K., on said premises, a store, and furnished all the necessary materials and labor for that purpose, and did in all respects comply with the terms of the said contract, and the specifications and drawings thereto attached, by him required to be performed. 4. That ^immediately after the completion of the said building, to wit: on, etc., the said W. K. accepted the same and took possession thereof, and has ever since occupied the same. 5. That the said W. K. has only paid your orator the sum of $ on said contract, and that there is now due to your orator tjiereon the sum of $ , from the said W. K., together with the interest thereon from, etc. 6. That he has frequently requested the said W. K. to pay the said.sum of $ -, the balance due your orator from him as aforesaid, but the said W. K. 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 orator as aforesaid. 7. That he has examined the record in the office of register of deeds for Wayne county, and found that J. B. and C. H., of, etc., have or claim some inter- est in the said premises. [State what the interest is. See Laws 1879, § 6, p. 276.] 8. That your orator on the day of filed a notice of his intention to claim a lien upon said premises in the office of register of deeds of the county of — : — , to wit : where said premises are situated, and also served a copy of such notice on on the day of , as required by the statute. Your orator therefore claims that by the provisions of the statutes of Michi- gan he has obtained a lien upon said premises, and which may be enforced in this court. 9. To the end, therefore, [usual clause,] .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 upon 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, W. K., may be decreed to pay your orator the amount APPENDIX OF PEEOEDBNTS. 829 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 ; [vary this clause according to the nature of the lien ; see statute] that in case of such sale and of a failure to redeem^ therefrom pursuant to law, the defendants, and all persons claiming through or under them, after the commencement of this proceeding, may be for- ever barred and foreclosed of all right or equity of redemption of the said premises; 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. [Prayer for subpoena.] (i) Note.— Redemption, same as in Mortgag Foreclosur. Laws 1879, § 18, p. 278. No. 177. Decree Allowing Lien and for a Sale of the Premises. [Title of cause and court.] [Caption.] This cause having come on to be heard upon the pleadings and proofs, and the same having been argued by the counsel for the respective parties, the court finds that the matters in the said bill (or petition) are true ; and that, etc. [here set forth the substance of the facts as found, or stated in the bill or petition] ; and that there is now due the complainant (or petitioner) the sum of dollars, for which sum he is entitled to a lien on the said premises, to wit : [here describe the lot on which building was erected], in accordance with the statute in such case provided. It is therefore ordered, adjudged and decreed, that the complainant (or peti- tioner) have a lien on the said described premises for the amount so found to be due from the defendant, E. F. ; that he pay to the complainant (or petitioner) the said sum of dollars, with interest from the date of this decree, within days from this date ; and in case the said defendant, E. F., shall make default in the payment of the said sum of money within the time herein limited, that a com- missioner of this court shall make sale of the said premises, or such part or parts thereof as may become necessary to pay the 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 tsrms thereof as provided by the statute ; and upon the' making of such sale the said commissioner will issue a certificate of purchase to the purchaser, as provided by law ; and out of the proceeds of such sale the said master will pay first, the cost of these proceedings, including his com- missions and the expenses of the sale, and second, pay to the complainant or petitioner the said sum of dollars and the interest due on the same ; and the surplus, if any, to the defendant, E. F., and the said commissioner will report his doings in the premises to the court. CHAPTEE XXIV. PROCEEDINGS BY AND AGAINST INFANTS. Ifo. 178. Petition for Appointment of Next Friend. See p. 619. [Address.] The petition of F. P., an infant under the age of twenty-one, to wit, of the age of sixteen years and upwards, respectfully shows : That a suit is about to be brought in this court, by and on behalf of your pe- titioner fand others) against W. D, Your petitioner therefore prays that O. W., of the city of Detroit, counsellor at law, may, by an order of this court, be appointed the next friend of your petitioner, to appear for him, as such in the said suit. And your petitioner, etc. Consent of Next Friend. I hereby consent to be appointed the next friend of the above petitioner, and to appear for him as such, in the suit mentioned in the above petition. Dated, etc. O. W. No. 179. Order Appointing Next Friend for Infant. In Chancery. In the matter of the petition of 1 F. P., an infant. ]" [Caption.] On reading the petition of F. P., an infant, praying for the appointment of O. W. as his next friend, in a suit about to be brought in this court by him, [and others,] against W. D., and the written consent of the said O. W. to accept such appointment; and the said O. W. having personally appeared before me and 830 APPENDIX OP PEBCEDENTS. 831 acknowledged that he executed [or it having been duly proved to me by the oath of S. L. thit the said O. W. signed the said consent,] it is ordered that the said O. W. be and is hereby appointed the next friend of the said petitioner, to appear for him as such in the suit referred to in the said petition, upon his executing a bond to the said infant in the penalty of $ , with two sufficient sureties, conditioned that he will duly account to such infant for all moneys which may be recovered in such suit. Dated, etc. Signature. No. 180. Petition for Order to Sell Real Estate. See p. 625. [For Form see 3 Barb. Ch. Prac, form No. 393.] No. 181. Taxed Bill of Costs. See p. 565. Cause No. ■ [Title of cause and court."] v Solicitor's fee by rule, Sheriff's fees, Register's fees, Circuit court commissioner's fees. Printer's bill, (not included in above) Register of deeds, (not included in above,) Witnesses' fees, ... Bill of costs. MILES TRAVEL. Total, $- [Venue.] W. T. being duly sworn, doth depose and say, that he is one of the solicitors for complainant in the within entitled cause; and that the several item^ of disburse- ments and fees of officers of the court, charged in the foregoing bill of costs, have been actually and necessarily incurred or paid, according to his best information and belief. [Jurat.] [Signature.] 832 APPENDIX OF PKEOEDENTS. To J. W., solicitor for A. B. Take notice : The above is a trae and correct copy of the bill of costs in this cause, and of the affidavit of disbursements required by rule. Application will be made to the register of said court at his office, on the day of , A, D. 18 — , at o'clock — m., to tax the same. Dated at, etc. Yours, etc., W. T., sol'r for D. E. [Venue.] W. T. being duly sworn, says that on the day of , A. D. 188 — , at o'clock — m., he served a true copy of the above bill of costs, with the affidavit and notice of taxation, upon J. W., solicitor for A. B., by delivering the same to him personally. [Jurat.] [Signature.] Note — Where witnesses' fees are charged in behalf of a party, the affidavit should show whether he attended merely as a witness, see p. 566. Laws of 1881, p. 394. Wayne County, }■ ss. I hereby tax the foregoing bill of costs at the sum of dollars. G. E. S., register in chancery. Wayne County, \-ss. I hereby tax the costs of the register in chancery in the foregoing entitled cause at the sum of dollars. B. D.. Circuit Court Commissioner for said county. No. 182. Bill of Divorce on the Ground of Adultery. See p. 588v State of Michigan, To the circuit court for the county of . In chancery. Your orator respectfully shows : 1. That he is now, and has been for more than a year now last past, a resi- dent of said county and State. 2. That on or about the day of , A. D. 188—, at , county, he was duly and legally married to the defendant herein by A. P., a min- ister of the Gospel, at the city of , and that the name of said defendant pre- vious to the said marriage was . 3. That he has been informed, and verily believes, and therefore charges the truth to be, that this defendant, disregarding the solemnity of the marriage vow, hath since said marriage, committed adultery, and had illicit carnal intercourse APPENDIX OP PEEOEDENTS. 8^S with divers persons, whose names are at present unknown to your orator, at divers times and places ; but at what times and places your orator is not informed. And further that on or about the day of , A. D. 188 — , at , this defendant did commit adultery and have illicit carnal intercourse with one . [State specifically the time, place and circumstances, also the general conduct of defendant as bearing on the probability of the truth of the charge. J Your orator further shows, that there are now living children the offspring of said marriage, whose names and ages are as foUov/s, to wit : -. [If bill is by the wife, ask for alimony, stating her own and her husband's pecuniary condition.] ' 4. And your orator positively avers that the several acts of adultery herein- before charged were 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 tlie day of , A. D. 188 — , and that aU of said acts were committed without the consent, connivance, privity or procurement of your orator, and that this bill is not founded on, or exhibited in consequence of any collusion, agreement or understanding whatever, 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 hereinbe- fore charged against this defendant. 6. In consideration whereof, and to the end, therefore, [usual clause,] and that the marriage between your orator and the said , 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 the care, custody, control and education of such infant child , the surviving issue of said marriage; 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. [Prayer for subpoena.] Signature. [Jurat.] Solicitor and of counsel of complainant. Note. — If defendant is a non-resident, take an order of publication. If default is made, take reference to commissioner to take proof. AiBdavit of regularity is the same as in foreclosure.] No. 183. Limited Divorce. Seep. 599. [Use foregoing bill and change the prayer. See 3 Barb. Ch. Pr. form No. 457.] 105 834 APPENDIX OF PRECEDENTS. No. 184. Decree for Divorce, A Vinculo, Pro Confesso, With Custody of Minor Children. I [Title of cause and court.] [Caption.] This cause having been brought on to be heard upon the bill of complaint filed therein, taken as confessed by the defendant, and upon the report of A. B., 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, and report the same to said court, with his opinion thereon : On reading the bill of complaint, the report of such circuit court commissioner, and the proofs accompanying the same, from which it satis- factorily appears to this court that the material facts charged in such bill of com- plaint are true, and that the defendant has been guilty of the several acts of therein charged, and that said defendant is an unsuitable person to have the care, custody and maintenance of the minor child of the issue of their said marriage, and named in said bill ; and that the complainant is a suitable person to have the care, custody and maintenance of said child. On motion of W. J., of counsel for said complainant, it is ordered, adjudged and decreed, and this court by virtue of the authority therein vested, and in pur- suance of the statute in such case made and provided, doth order, adjudge and decree that the marriage between the said complainant and the said defendant, 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 decreed, that said complainant shall have the care, custody and maintenance of said minor child, and that said child shall remain with said complainant until hejshall attain the ^e of fourteen years, or until the further order of the court. [Countersigned] B. R., register. CHAPTER XXV. CONTEMPTS. / No. 185. Affidavit of Service of Order to Pay Costs, and of Demand of Pay- ment of Bill as Taxed. See p. 536, 544. [Title of cause.] [Venue.] ' A. B., of, etc. , being duly sworn, says that on the day of '■ instant, he served upon E. F., one of the defendants in this cause, personally, a copy of the order hereto annexed, together with a copy of tlie bill of costs taxed under the said order, and demanded payment of the said bill of costs on behalf of the complainant ; but the said E. F. neglected and refused to pay the said bill of costs or any part thereof. [If the order be to pay a specific sum of money, change the affidavit to suit the fact.] [Jurat] ISo. 186, Affidavit of Solicitor that Costs, as Taxed, Have Not Been Paid. [Title of cause.] [Venue.] B. F., solicitor for the complainant in this cause, being duly sworn, says that the sum of $ , being the amount of the taxed bill of costs directed by the order of this court, made on the day of , to be paid by the defendant, E. F., has not, nor has any part thereof, been paid to this deponent, nor to the complainant, to the knowledge or belief of this deponent, although the said bill of costs has been duly taxed, and was filed in the office of the register of this court, together with the affidavit required on taxation, more than twenty days since. 835 836 APPENDIX OP PEECEDENTS. No. 187. I Order to Show Cause Why Attachment Should Not Issue, See pp. 536, 605. [Title of cause.] . [Caption.] On reading and filing affidavits, etc., and on motion of O. C, solicitor for complainant, ordered that the defendant, B. K., show cause on the day of . at the opening of the court, on the said day, why an attachment should not issue against him, and he be punished for his alleged refusal to pay the sum of $ , ordered by this court to be paid by him to , as temporary alimony, on the day of , [or the taxed bill of costs as the case may be.] No. 188. Order for Precept to Commit for Non-Payment of Costs Ordered to be Taxed. [See 3 Barb. Ch. Pr. Form 468.] INDEX. INDEX, Abandonment, of sale under decree, by purchaser, 155. Abatement, definition of, 331. what amounts to, 831, 332. effect of, 332. effect of, where it is total, 332. power of court pending abatement to make necessary orders, 332. abatement after appeal, 332. death of defendant pending a real action, 332. effect of a party's death, 331, 332, 332, 341. where the cause of action survives, 333. where it does not survive, 333. by assignment of party's interest, 341. by vesting of party's interest in assignee, 341. after answer to bill of discovery, bill of revivor will not lie, 342. of original bill, after cross bill filed, 394. of partition suit after appointment of commissioners, 494. practice in U. S. courts, 342, note. Abbreviation of Pleadings, to be furnished on hearing, 165, 166. Absent, Concealed, and Non- Resident Defendants, -'lecessary diligence in serving subpoena, 34, note. method of taking bills as confessed against, 48. order for appearance, 48. affidavit to obtain order for appearance, 48, 49. affidavit as to a party's continued absence, 49. order to appear and answer, 49. application for, must be special, 51. publication of notice of order, 50. 839 840 INDEX. Absent, Concealed, and Non-Resident Defendants — Continued. order to take bill as confessed, 50. proof of publication or of service of order, 50. reference to commissioner to take proofs, 50. proofs before commissioner, testimony of complainant, 50. complainant's testimony as to payment, 50. order /?-o confesso and of reference, when of course, 50. brought in by publication, validity of subpoena is not involved, 61. personal decree, conditions to, 51, 187. jurisdiction over, nature of, 51. appearance and answer, as waiver, 51. effect of non-resident's appearance and answer after decree, 186. right to be heard after decree, on payment of costs, 51. default, no decree without proofs, 51. infant or lunatic defendants, guardian ad litem, 51, 52. appearance and answer after decree, 201. reference as to absentees in foreclosure, evidence upon, 440. foreclosure proceedings against, sales, 445. Accounts, taking, before commissioner, 145. to be in form of debtor and creditor, 145. what interest allowed, 145. matters to be verified, 145. party must bring in his whole account, 145. and for the whole period, 145. , account must be verified, 145. proper course on accounting, 146. where circuit judge hears a case on accounting, 146. form of account, 146. ' parties only incidentally interested not concluded by accounting, 147. computing interest, 147. burden of proof in accounting, 218. whose objections considered on appeal, 218. method of return on appeal from accounting, 222. errors against appellant iir accounting balanced by those in his favor, 249. references on appeal, as to partnership books, 249. case remanded for want of regular accounting, 249. partition not an incident to suit for accounting, 489. accounting may be ordered in partition, 495. apportionment of costs in accounting, 555. plea of account stated, requisites, 68. INDEX. 841 Action at Law, dismissing bill, with leave to bring, 175. retaining bill, with leave to bring, 175. Adjournment, of proceedings before commissioner, 131. of sale under decree, 150. publication of notice, 150. expense of, who pays, 150. further advertisement, when unnecessary, 150, for commissioner's absence, 151. Administrator, heir cannot be substituted for, by amendment, 97. costs made a personal charge on, 235. revivor of suit by, 334. when not liable for alimony, 608. Admissions, in answer, effect, 84, 85. certain admissions construed, 85, note. Adultery, husband or wife when incompetent to testify, 116. suits for divorce on account of, 597. divorce for, legitimacy of children, 597. pending appeal, bars temporary alimony, 604. Advertisement, of order for appearance, 50. of sales under decrees, 149. affidavit of publication of, 283. under creditor's bill, of order to exhibit demands, 410. Affidavit, See OATH. nature and uses of, 278. • what questions can be tried upon, 278. in support of bill, 278, 279. in support of answer, 278, 279. counter affidavits in opposition to motion, 278, 279. on motion to dissolve injunction, or discharge ne exeat, 31, 278, 279. on motion for a receiver, 279. on motion to open default, affidavit of merits, 279. by whom to be made, 280. form and requisites, 280. how to be entitled, 280. must be correctly entitled in the cause, 280. 104 842 INDEX. Affidavit — Continued, adapting title by reference to paper, 280. must be entitled in names of all the parties, 28L misentitling is fatal, 281. in proceedings as for a contempt, 281. complainant's name must be placed first, 281. several defendants, how set forth, 281. venue, 281. omission of words " before me " in jurat, 281. copies served with notice of motion must be true and complete, 231, 28L for appeal, affiant need not sign, 282. names and additions of deponent, 282. when made by several deponents, 282. whether joint and several, etc., 282. substance of, 282. affidavits of service, 282. affidavits of merits, 53, 283, 287, 441. must be pertinent and material, 283. scandal and impertinence, 283. affidavit to oppose motion, 283. affidavit of publication, 283. affidavit of non-residence, 285. of regularity, 52, 286. conclusion, 286. oath and jurat, 286. where deponent is blind, or cannot write, 28d. before whom may be sworn, 287. filing and marking, 288. when must accompany bill, 30. affidavit accompanying bill must be positive, 30. for order of appearance, 48, 49. effect of, on jurisdiction, 49, note. upon demurrer, in U, S. Courts, 58. upon plea, in U. S. courts, 66, note, not admissible to contradict the answer upon a motion for the appoint- ment of a receiver, 80. amendments in form of without referring to the answer, are irregular, 90. to support motion to dismiss bill, 109. lor putting complainant to his election, 111. in support of motion to examine de bene esse, 118, 119. when circuit court commissioner of an adjoining county acts, 125, 126. in opposition to petition, 265. INDEX. 813 Affidavit — Continued, for ne exeat, 326. with bill of interpleader, 383. to be annexed to bill to perpetuate testimony, 398. of default in payment of redemption money, 479. of amount due on mechanic's lien, 513. of facts constituting contempt, 534. on attachment proceedings for contempt, 540. for taxation of costs, 239^ 285. disputed matters of fact bearing on taxation of costs, not reviewed on affidavits, 240, 285. annexed to bill of costs, 565. in opposition to bill of costs, on taxation, 566. on motion for relaxation of costs, 569. Affidavit of Publication, made several years after sale, not presumptive evidence, 283. " once each week, for six successive weeks," 283. made by " a printer in the office of the , a paper," etc., 283. " six weeks successively next before sale," 284. affidavit as to posting of notices, 284. held sufficient in a particular case, 284. as to the newspaper, 284, 285. by whom made, 285. annexed to report of foreclosure sale, as evidence, 285. Agent, verification by, of bill, 29. "general" or "special" agent of corporation, for service, 36, note. when allowed costs out of the ftmd, 558. Alimony and Expenses, nature of alimony, 601. two kinds of alimony, 601. temporary alimony, 601. is a common law right, 601 . courts of chancery are bound to enforce it, 601. in suits by wife, for divorce, almost of course, 601. provisions of the statute, 602. wife defendant in suit on ground of adultery, 602. when allowance refused, 602. effect of husband's affidavit denying ground of divorce, 602. poverty of husband, 602. not allowed where wife has sufficient sep:irate property, 602. 844 INDEX. Alimony and Expenses — Continued. so as to maintenance and counsel fees, 603. amount of, 603. on appeal, 603. how applied for, 604. special showing where injunction is asked, 604. costs, 604. enforced by attachment, not by execution, 604. defendant cannot be imprisoned except as for contempt, 205, 605. proceedings for contempt, 605. order granting, not reviewed on appeal from contempt proceedings, 605. regularity of committal for contempt when not reviewed on habeas corpm, 605. permanent alimony, 605. equity has no inherent power to grant, 605. power is a statutory one, 606. provisions of the statute, 606. security by husband for payment, 606. execution for collection, 205, 606. sequestration and receiver, 321, 606. when court may direct sale of lands, 607. alteration or amendment of 'decree, 607- when revision of decree authorized, 607. award may be made in gross, 607. fixing amount, in decree for limited divorce, 607. cannot be enforced by attachment, 608. remedy to enforce is by execution, 608. sufficiency not to be reviewed by jury, 608. administrator of deceased complainant not compelled to pay alimony on appeal, 608. right to recover, continues only during life of. deceased, 6C9. allowance to complainant not increased on defendant's appeal, 609. payment bars liability for necessaries, 609. sale on default, without adjudication of non-payment, invalid, 609 order opening decree for, is not appealable, 610. expense of printing, security to refund, 609. damages fqr vexatious delay and expenses, 609. under bill for divorce under Comp. L. g 4738, sub. 6, 609. order allowing temporary alimony is not appealable, 205, 610. order modifying a decree for alimony is final, 610. allowance of alimony should be appealed from, 610. INDEX. 845 Amendment, of answer, 89. allowance of, a matter of discretion, 89. generally confined to mistakes of fact, 89. to correct mistake in matter of form, 89. to state new matter, 89, 90. to set up defense of usury, 90. or the statute of limitations, 90. how made, practice, 90. in form of affidavits, irregular, 90. superseded by practice of filing supplemental answer, of supplemental answer, 91. of bill, 97. of injunction bill, to waive answer under oath, 97. of course, no rule or order needed, 98. of course, how made, service, 98. ■ fiirther answer, when unnecessary, 98, after demurrer, 64, 98. when of course, 64. there must be no delay, 64. when plea or demurrer is overruled, 98- on allowing demurrer, 99. in U. S. Court, before and after replication, 99, note, after replication, 99. at the hearing, 99- right is broader than in appellate court, 99. is a matter of discretion, 99. limit to this discretion, 100. change should not introduce a new controversy, 100. exceptions to this rule, 100. where new facts are disclosed, 100. for want of parties, 101. to meet matters set up in the answer, 101. after cause set down for hearing on bill, answer and replication, 101. as a general' rule, in discretion of court, 96. allowed with liberality until proofs closed, 96. except where bill is sworn to, 96. must refer to matters existing before suit, 96. as to facts known to complainant when filing bill, 96. must be made at earliest opportunity, 96. application should be by petition containing full statement of the facts, 96. 846 INDEX. Amendment — Continued. amendments are of two sorts, 96. relating to parties, courts are more liberal than as to others, 96. in U. S. courts, 96, note when permitted, under the rules, 97. cannot introduTce matter that would constitute a new bill, 97. matter must not have arisen since suit, 360. heir cannot be substituted for administrator, 97. of course, when bill not sworn to, 97. of course, after answer, 97. on sworn bills, of course, when allowed, 97. must be verified by oath, 97. of injunction bill, must be after order and on notice, 97. after appeal, case must be remanded, 101. application for, too late after affirmance above, 61. how made and served, 101, 102. to bill for divorce, verificuion, 102, 589. effect of amending bill, 102. to meet a particular defense set up in the answer, 21. 3&.tt pro confesso, sets aside default, 52. to add parties at re-hearing, 196. after a complainant's death, 337. after cross bill filed, effect, 394. of bill to perpetuate testimony, 399. to judgment creditors' bill, 411. must be verified, 411. of foreclosure bill, to ask for accounting, 441. of bill for partition, 489. to bill or cross-bill in mechanic's lien suit, 518. answer to amended bill, 89. demurrer to amended bill, how confined, 58, 101. pro confesso on day of filing amended bill, irregular, 46. of return, motion for, 222. special motion for leave to amend, 231. after appeal, 242. of imperfect record on appeal, 243. ofplea, 73, 74. of commissioner's report, 142. of decree, 194. of judgment, power of court, 194, note. Amount in Controversy, bill should state, 16. INDEX. 847 Amount in Controversy — Continuea. consequence of omission, 17. jurisdiction as depending on, 16. on appeal to U. S, supreme court, 215. in case of creditor's bill, 407. in foreclosure, 453. in specific performance, 644. Answer. nature and uses of, 76, 77. must, in general, be full, to all well pleaded charges, 76. exceptions to the rule, 76. exceptions in U. S. courts, 76, note. the most usual mode of defense, 77. may be either to the whole bill, or to such parts as are not covered by plea or demurrer, 77. serves a double purpose — 1. That of answer to complainant's case, 77. 2. That of stating defendant s defense, 77. manner of answering case made by bill^ 77. defendant submitting to answer must answer fully, 77. meaning and extent of this rule, 77. only extends to matters well pleaded, 77. exceptions to it, 77. must be as to defendant's knowledge, remembrance, information and belief, 77. when his recollection is presumed, a positive answer is required, 78. if he has no knowledge, a general denial sufficient, 78. defendant bound to use due diligence to inform himself, 78. must be direct and without evasion to material and necessary parts of th e bill, 78. must not answer the charges merely literally, 78. affirmative relief not granted upon answer in absence of cross-bill, 78. where defendant answers and demurs to different parts of the bill and demurrer is overruled, complainant must except to the original answer before he can obtain a further one, 78. objection that bill is too indefinite to form the basis of relief, 78. manner of stating defense^ 79. answer must state the case intended to be set up, 79. and in a clear, unambiguous manner, 79. otherwise defendant cannot avail himself of the defense, 79. degree of accuracy required, 79, may set up any number of defenses, if not inconsistent, 79. 848 INDEX. Answer — Continued. consequence of setting up inconsistent defenses, 79. defense consisting of a variety of circumstances, 80. defendant can defend only on grounds set up in answer, 80. form of answer, 80. no particular form of words necessary, 80, title, 80. ' title of a joint answer, SO. commencement, 80. general saving of exceptions,'_80. answer to matters in bill, 80. statement of explanatory matter, 80. statement of defense, 80. defendant bound to admit or deny whatever complainant is bound to state, 80. may set up matter occurring since filing the bill, 80. denial of combination, 81. general traverse or denial, 81. when defendant submits to answer the whole bill, answer must be respdnsive, 81. defendant need not answer parts from which he might protect himself _■ by demurrer, 81. impeaching deed set out in bill, 81. cannot vary terms of written agreement, 81. infant's answer omits general saving clause, denial of combination, and concluding denial, 81. answers and copies must be legibly written, 81, signing, 81. in general, defendant must sign, 81. unless there is an order for taking it without, 81, waiver of signature, 82. effect of omitting, 82. swearing -to, 82. See OATH. necessary unless complainant dispenses with oath, 82, waiver of oath, effect, 82. form of oath, jurat, 83. before whom may be sworn, 83. endorsing, filing and serving, 88, time for putting in, 83. . extension of time, 83. jmder oath, effect as evidence, 83, 84. effect of calling defendant as witness, 84, INDEX. 849 Answer — Continued. how far evidence, when oath waived, 84. nothing admitted unless expressly admitted, 85. complainant cannot use one part and exclude others, 85. defense of one defendant enuring to benefit of others, 85. affirmative milters of defense set up in, must be proved, 85. copy of deed attached to, not evidence, 85. dcn'al of fraud in, effect, 85. ratifying an agreement, made by solicitor without authority, 86. by attorney in fact 86. of an infant, 81, 86. See Infants. of a married woman, 87. of an idiot, lunatic or insane person, 87 of superannuated person, 87. of a foreigner, 87. of a deaf and dumb person, 88. of a Jew, how sworn to, 88. of a blind person, 88. of an illiterate person, 88. of a corporation, 89. joint and separate answers, 89. to amended bill, 89. amendment of, 89, 90. supplemental answer, 90. taking answers off the file, 91. proceedings to compel, 45. pro confesso for want of, 52. on terms, after default, 53. when required to support plea, 74, 75. in support of plea, is no part of the defense, 75. in support of plea, requisites of, 75. separate answers filed in U. S. Court by same solicitor, costs, 89, note, practice as to, in U.i S. Courts, 90, note. not precluded by disclaimer, when, 91. accompanying disclaimer, 91. prevails over disclaimer when inconsistent with it, 93. overrules a demurrer, 93. overrules a plea, 93. does not lie to what has been demurred or pleaded to, 93. cannot claim what disclaimer denies, 93. exceptions to, 94. further, when unnecessary after amending bill, 98. 107 850 INDEX. Answer — Continued, taken as trae, though unsworn, if there is no replication, 112. of representatives of deceased defendant, 336. to cross bill, 393. to bill to perpetuate testimony, 399. to bill of interpleader, 384. to supplemental bill, 366. to bill of revivor, 347. to original bill after revivor, 346. withdrawal of, in divorce suit, 594. Appeal, use of, 207. is taken from circuit and equivalent courts direct to supreme court, 207. from what orders it lies, 207. is a statutory right, compliance with statute, 207. appealable decisions, how classified, 207. decrees and orders, final and interlocutory, defined and distinguished, 208, 647. decrees and orders held to be final, 209. as to receivers, 209, 647. in foreclosure cases, 209, 210. in divorce cases, 210. in contempt cases, 210, 551. in partition cases, 210. in other cases, 210, 211. decree for costs, 564. decrees and orders held not final, 211. as to receivers, 211. in foreclosure cases, 211, 212. in divorce cases, 212. order sustaining a demurrer, when, 212. order overruling a demurrer, 212. as to injunctions, 212. in other cases, 212, 213. not for an exercise of discretion, 213. nor as to the mere .practice of the court, 213. when it lies brings up whole case for review, 213. will not lie from an order by consent, 213. final process, when to be made returnable, 214. transmitting record to court below, 214. practice on appeals in U. S. Courts, 214. allowance of appeal, 214. INDEX. 851 Appeal — Continued. how may be made, 214. amount necessary to be involved, 215. effect of appeal, 215, 216. claim of appeal, 215. must be in writing, 215, 216. time for, 215. time for taking, 216. when commences to run, 216. extension of, 216. on decree entered in vacation, 217. last day for, falling on Sunday, 217. notice of appeal, 'iXl. \ written, to all parties, 217. copy to be filed with clerk, 217. when can be given, 217. failure to give, 217. by whom given, 217. service of, 217. waiver of, 218. both parties if aggrieved must appeal, 218. by one of two defendants, questions considered, 218, by one defendant in foreclosure, does not benefit another, 218. objections of appellees to decree on accounting, 218. burden of proof in accounting, 218. compensation for trustees, 218. bond on appeal, 215, motion for approval, 216. additional bond, 216. failure to file, 218. , by whom to be executed, 219. two sureties required, 219. ineffectual approval, amendment, 219. presumed to secure costs, 219. extent of obligation, 219. covers what costs, 219, 220. may be executed before appeal taken, 220. indorsement, approval of sureties, 220. provides for whom, 220. transcript and return, 220. payment of register's fee, 220. extension of time for return, 220. 852 INDEX. Appeal — Continued. notice of extension, 221. time for return, 221. return made before motion to dismiss, 221. return should include what, 222. failure to perfect appeal within the statutory time, 222. motion to amend return, 222. .laches in procuring return, 222. no jurisdiction over, dismissal with costs without affirmance, 222. cases on calendar, 223. notice of hearing, 223. . , designation of parties, 223. ' grouping cases for argument, 223. printed record, 223. what must include, 223. entire record to be printed, when, 223. books need not be produced in, 223. how printed, 224. delay in serving costs, 224. use of substituted copy of minutes of oral testimony, 224. prolixity, clerk cannot determine, or impose costs, 224. costs for printing, 239. neglect to print, affirmance of judgment, 225. service on day preceding hearing, 225. hearing, 224. order of, 224, 225. oral argument not heard unless printed record furnished previous to preparing call, 224. taking cases on briefs, 225. furnishing printed briefs, 225. motions have precedence on motion days, 226. , argument- on, time allowed, 226. failure to appear or file brief, by complainant, 226. notice of, 226. who entitled to, 226. when may be given, 226. time for, 226, 227. proof of service, 227. defendant should also give, 227. form of, 227. affidavit of service, 227. by appellee, waives irregularities in taking the appeal, 227. ' INDEX. 853 Appeal — Continued, not to be given till full time for return has expired, 227. by whom to be given, 227. formal notice of appearance not required, 227. effect of want of below, 227, 228. service of papers and notices, 228, 229. motions, 228. See Motions. dismissal of appeal, 231. , motion for, for want of prosecution, 231. failure to perfect appeal in time, 231. merits not considered on motion, 232. not, for errors of practice, 232. objections to record, how made, 232. re-instatement, 232. non-payment of costs imposed on refusal no grovmd for' another mo- tion, 232. for default below, 232. computation of time, 232. See Time. costs on, 234. See Costs in Supreme Court. damages for vexatious appeals, 237. re-hearing, 240. See Re-Hearing. re-argument, when permitted, 241. amendments after, 242. supreme court cannot amend, 242. may direct amendment below, 242. when cause remanded for, 242. costs on amendments in cases remanded, 242, note. in court below after appeal, disregarded, 243. amending imperfect record, on motion, 243. jurisdiction and procedure on appeal, 243. what errors examined, 243. power of supreme court, 243, court has no original equity jurisdiction, 243. has power to review iirsome way all final judgnjents, 214, 243. has appellate powers only, in matters of equity, 243. cannot pass on facts not contained in record as heard below, 243. inquiries into the facts on the record, 243. rulings of supreme court in equity, when not binding at law, 243. what brought up by appeal, 244. matters reviewed on appeal from final decree, 244. from final order, 244. rulings below in practice matters, 244. 854 INDEX. Appeal — Continued. final decree made below, merits not examined on appeal from subse- quent order to enforce it, 244, 250. final decree on reference, 244. exceptions not necessary where the interlocutory decreg preceding a reference decides the turning point, 245. objections to depositions used below, when too late, 245. examines only errors found in transcript, 245. proceedings subsequent to the decree appealed from are not brought up, 245. subsequent decree below, pending appeal from prior one, invalid, 245, questions as to taxation of costs below, when not reviewed, 245. order granting temporary alimony, when not reviewed, 245. point not sufficiently raised by demurrer cannot on appeal be raised for the first time, 246. objections to decree for accounting as to details of practice, 246. claims of person impleaded as holding securities for a principal defen- dant, 246. appellant must show prejudicial error, 246. when appeal dismissed for defective pleadings, 246. testimony taken in open court and evenly balanced, 247. weight of decision of circuit judge on facts in doubtful case, 247. when decree below affirmed, 247. court equally divided, 247. appellant failing to appear or file brief, 247. neglect to furnish brief under rule 32, 247. where on the whole case it appears that complainant who appeals has not made out clearly a right to recover, 247. correct decree not reversed, because court below erred in reasoning, 247, 248. reversal for jurisdictional defects, 247. want of jurisdiction to entertain complainant's appeal for special relief, 248. errors affecting infants, 248. dismissing bill, on motion, on appeal for want of jurisdiction, 248. injunction bill dismissed below, does riot revive the injunction, 248. no jurisdiction to entertain an appeal, appeal dismissed in lieu of affirming decree below, 248. objections not presented in the record below, not considered, 248. where one of several parties appeals, reversal must be for what error, 249. no reversal unless court is satisfied decree is wrong, 249. INDEX. 856 Appeal — Continued. errors against appellant in accounting, balanced by those in his favor 249. decree not enlarged where complainant does not appeal, 249. case involving accounts, references to partnership books not properly returned, 249. cause remanded for regular accounting, 249. interlocutory proceedings of overruling plea and demurrer, when not reviewed to pass on questions of trifling costs, 249. ' facts not affecting the issue does not concern appellant, 249. laches in applying for relief below, where bill had been dismissed by consent, 250. effect of a reversal not on the merits, 250. formal objections to decree should be made below, 250. practice on affirming foreclosure decree where record does not show the production of the notes and mortgage, 250. decree of dismissal not disturbed where necessary documents are not set out, 250. settling cases heard in open court, 250. See Settling, Etc, affidavit for, affiant need not sign, 282. from partition proceedings, 496. in mechanics' lien suits, 522. in probate of foreigt> will, 532. temporary alimony on, 603. none, to review proceedings for voluntary dissolution of corporation, 646. from commissioner, 136. who can appeal, 136. claim and entry, time for, 136 bond on, 136. effect of, 136. Appearance. process for, 32. as a waiver of irregularities, 33. attachment to compel, 37. nature of, 38. what amounts to, 38. effect of, how far a waiver, 39. special appearance, 39. effect of neglecting to appear, 39. entitles party to notice of subsequent proceedings, 39. exception to this rule, 39. voluntary appearance, 38, 40. 856 index:. Appearance — Continued. where to be entered, 40. when to be entered, 40. how to be entered, 40. notice of, 40. compulsory appearance, 38, 41. appearing gratis, 41. definition of, 41. when resorted to, 41. will not prevent complainant from moving for injunction ex parte, 41. by married women, 42. when to be entered by husband, 42. right of husband to appear for wife, 42. when she must enter her own appearance, 42. by infants, 42. i guardian ad litem, 42. when complainant may apply for guardian ad litem, 43. order for appointment, 43. who may be appointed, 43. husband guardian ad litem of female infant, 43. duty, compensation and liability of guardian, 43. must put in special answer when necessary, 43. infant's appearance, entry of, 43. by insane persons, lunatics, etc., 44. guardian ad litem, 44. by deaf and dumb persons, 44. by corporations, 37, 44. by absent, concealed, and non-resident defendants, 48, 51, 186, 201. pro confesso, for want of, 48. entitles defendant to notice of all subsequent proceedings, 201. notice of, in appeal, 227. upon bill of revivor, 341. upon supplemental bill, 364. * by attorney general, for state in partition suits, 486. Assignee. of mortgage, payment to on redemption, 478. of estate subject to mortgage, may redeem mortgage, 472. of mortgage, when necessary party to bill to redeem, 473. of a contract, may have specific performincs, 633, 641. in bankruptcy, cannot sue without court's permission, 8. in bankruptcy, bill to set aside conveyance, 19. INDEX. 857 Assignment. of interest in suit, plea of, 67. of interest in decree, 187. of decree, enforcement by assignee, 206. abatement by, revivor, 341, 345. of judgment, parties to creditor's bill, 410. '' fraudulent, of debt, who can take advantage of, 411. allegation of, and of record of, 437. of mortgage, only affects amount of decree, 422. and not the right to mainiain foreclosure bill, 422. rights under, 424, 425. parties lo foreclosure. 427. by mortgagee, with guaranty, parties to foreclosure, 430. must be averred in foreclosure bill, when, 435. want of consideration as a defense t6 foreclosure, 446. Attachment. to compel appearance, 37, 41. to compel an answer, 45. for failure to plead, 70. to enforce decree, 204. for non-payment of interlocutory costs, 276, 542. the remedy to enforce temporary alimony, 604. not the remedy to enforce permanent alimony, 608. for contempt, 535, 538. See Contempt. Attorney. , ' bill to be sworn to by, how should be drawn, 29. answer by attorney in fact, 86. when incompetent as a witness, 1 17. service of notices on, 229. how to be tried for contempt, 276, 545. Attorney Fee. not allowed on affirmance of decree where counsel did not appear, 237. in mortgage, 453, 454. Attorney General. cannot bring relator forward as an orator, 8. practice on an information, 8. how should proceed to enjoin abuse of municipal powers, 297. appearance for state in partition suits, 482. Auditor General. costs allowed on his appeal bond, 234. bill against, to- quiet title as against sales to the state for unpaid taxes, 527. 108 858 INDEX. B. Bail. for appearance in attachment for contempt, 539. Bankruptcy. setting aside deed by bankrupt, 19. Banks. receivers, when appointed, 318. Belief. method of answering as to, 78. Biddings. upon commissioner's sale, when epened, 157. See Sales under Decrees. Bill. nature and office of, 7. by whom may be filed, 8. against whom may be filed, 8. where should be filed, 9. division of, 11. original bills praying relief, 12. original bills not praying relief, 12. constituent parts of an original bill, 12. n 1. The address, 12. 2. The introduction, 13. 3. The stating part, 13. 4. The confederating part, unnecessary, 13. 5. The charging part, purpose of, 13. should contain no untrue statement, 13. 6. The clause of jurisdiction, unnecessary, 13. the bill must show court has jurisdiction, 13. 7. The interrogating part, 13. interrogatories are special or general, 13. general interrogatory sufficient, 13. special interrogatories often useful, 13. interrogatories to be founded upon bill, 13. otherwise need not be answered, 13. but if answered, matter is put in issue, 13. ' special interrogatories, when unnecessary in U. S. courts, 13, note. practice in U. S. courts under interrogatories, 13. special interrogatories seldom resorted to under our practice, 14. 8. The prayer for relief, 14. should contain prayer for special relief, 14.] ■INDEX. 859 Bill — Continued. prayer for special relief not absolutely necessary, when, 14. 9. The prayer of process, 14. indicates names of person? intended to be made parties, 14. must containprayer for injunction if one is wanted, 14. against persons out of the jurisdiction, 15, against corporation defendant, 15. defects of form in, cannot be taken advantage of on general'demurrer, 15, matter of n. bill, 15. degree of certainty required, 15. setting out written undertakings, 16. precision in charging fraud, 16. should state complainant's residence, 16. a case within the jurisdiction of court must be stated, 16. , consequence of omission, 16. must state amount in controversy, 16. failure to aver amount in controversy, 17. objection that there is a remedy at law, 18. uniting different causes of complaint, 18. bill framed with double aspect, 18. jurisdiction when retained for full relief, 19. jurisdiction in cases of fraud, 19.' disturbing legal judgments, 19. setting aside deed by bankrupt, 19. restraining sale of personalty for tax, 19. enjoining sale for non-payment of taxes, 20, note. jurisdiction in probate cases, 20. partnership claims, when concluded, 20, note. a sufficient matter must be stated, 21. should state facts, not legal conclusions, 21. essential facts must be stated positively, 21. bill should show complainant's theory, 21. objection that bill is too indefinite to form the basis of relief, 78. avoidance of a special defense, how pleaded, 21. charging fraudulent intent, 21. , sufficient statement of ownership in injunction bill, 21, note, frame of bill in U. S. Courts, 21, note. parties, who are proper, 21. dispensing with some of the parties, 22. who are necessary parties, 22. married women as parties, 23. parties to suits for encroachments on highways, 24. 860 HTDEX. Bill— Continued. cestuis que trusts as, 24, note, parties in specific performance, 24, note. parties in U. S. courts, note. non-joinder or misjoinder, 24. interest of parties, 25. method of stating rights of complainant, 25. complainant's interest must be what, 25. method of stating defendant's interest, 25. bill must be brought for the whole subject, 25. multifariousness, 26. scandal and impertinence, 27. setting out deeds and documents, 27. by whom, and how, to be drawn, 28, 29. signing, 28. when must be signed by complainant, 28. usually signed by solicitor, 28. signature of counsel in addition unnecessary, 28. printed signature aot good, 28. signing In a suit by_ a corporation, 28. swearing to, when necessary, 28. oath, substance of, 29. oath of agent or attorney, jurat, 29. how drawn, when to be verified by agent, 29. numbering and marking folios, 29. must be legibly written, 30. entitling and endorsement, 30. filing, 30. when to be accompanied by an affidavit^ 30. bill of interpleader, 30. bill to examine witnesses de bene esse, 30. bill upon a lost instrument, 30. bill to perpetuate testimony, 30. consequence of omission when necessary, 30. to prevent dissolution of injunction or discharge of ne exeat, 31. taking it as confessed, 46. ' nature of the proceeding, 46. decree, how limited, 46. amendment or supplemental bill vacates deiault, 46, 62. amended bill, pro confesso when irregular, 46. defense of one who answers enures to benefit of other defendants, 47. order pro confesso, practice on, 47. INDEX. 861 Bill — Continued. proof to sustain bill, irregular, no costs, 47. no decree against in rant, 4/. gainst absent, concealed or non-resident defendant, 48, 51. for want of an appearance, 48. ■affidavit of regularity, 52. for want of an answer, 52, 73. setting aside default, 53. affidavit of merits, 53. answer on terms, when permitted, 53. for a frivolous demurrer, 63. against representatives of deceased defendant, 336. m case of partition bill, 490. order to deliver copy of bill, 55. excepting to bill for scandal or impertinence, 55. a bill cannot be filed in aid of another bill in the same court, 647. dismissal of. See DISMISSING Bill. retaining, with liberty to bring action at law, 175. amendment of. See Amendment. of revivor. See Bill of Revivor. See Cross Bill ; Judgment Creditor's Bill ; Supplemintal Bill. Bill for Divorce, divorce defined, 572. the two kinds of divorce, 572. absolute divorce, 572. limited divorce, 573. legislature cannot grant divorces in Michigan, 573. marriage a civil contract,f573. consent necessary, 573. age of consent, 573. when void without decree, 573. when decree to annul, 574. suit to affirm, when necessary, 575. causes of divorce, 575. jurisdiction of, and when commenced, 576. on the ground of adultery, 577. what bill to specify, 577. constituents of the offense, 578. evidence of adultery, 578, 579. charge of extreme qruelty may be joined in same bill, 578. on the ground of impotency, 580. on conviction of crime, 581. 862 INDEX. r Bill for Divorce — Continued. , for desertion, 581. on ground of habitual drunkenness, 582. when divorce granted in another state, 583. on ground of extreme cruelty, 584. parties, 587. frame of bill, 588. bill must be verified, 58§. answer need not be verified, 588. necessary averments in bill, 588. amendment to bill, must be verified, 589. different punishments or kinds of divorce not to te joined, 590. injunction on bill for, 590. defenses to bill, 590. must be specially set forth in answer, 590. when divorce may be denied though adultery proved, 591. trial of issues, what confined to, 591. condonation, 591, 592. cross-bill, 592. how suits are conducted, 592. fro confesso, order for reference, 593. what issues to be tried by jury, 593. proof of marriage, 593. taking proofs, contradictory testimony, 593. calling parties to testify in open court, 594. complainant refusing to testify, 594. decree without hearing, premature, 594. withdrawal of answer, 594. when complainant not heard to vacate decree on ground of collusion, 594. decree affirmed, conflicting evidence, 595. effect on decree of previous voluntary dismissal by complainant, 595. evidence of fraud to annul marriage, 595. what frauds invalidate m'arriage, 595. when wife entitled to dower, 595. decrees not made by consent or default, 203, note, 596. evidence of witnesses, independent of parties, required, 596. custody of children, 596. effect of decree on legitimacy of children, 597. bill for limited divorce or separation, 599. when granted, 599. ' may be filed by either party, 599. for what causes, 599. INDEX. 863 Bill for Divorce — Continued. absolute decree discretionary, 599. allegation of cruelty and neglect to support, 599, 600. orders for custody, etc., of children, 600. revocation of the decree on application of the parties, 600. alimony and expenses, 601. See AHMONY, Etc. appeal by defendant wife after husband's death, from decree against her, 608. how exhibited by infant complainant, 630. observations on divorce, 611. ' costs are under the court's direction, 567. what decrees are final, 210. orders held not final, 212. \ U. S. courts have no jurisdiction, 649. can enforce a decree for alimony made by a state court, 649. Congress may. legislate on divorce in the territories, 650. Bill for Foreclosure of Mortgage. nature of, 418. when proper, 418. the two methods of foreclosure, by bill, 418. how soon sale can take place, 419, 420. no proceeding at law after bill filed, 420. filing after commencement of suit at law, 420, 421. pendency of foreclosure proceedings in chancery is no defense at law, 420. proper practice is to move for stay of proceedings, 420. compelling election of remedy, 420. judgment obtained at law, what bill must show, 421. decree not made until return of execution unsatisfied, 421 . where several distinct payments are secured by one mortgage, 4*?!. that an a-ssignment is taken as security does not affect the right to maintain the bill, 422. endorser's liability for deficiency, 422. effect of mortgagee's warranty deed after foreclosure for one installment, 422. where several mortgages secure a single debt, 422. defendant may file a bill to obtain the benefit of the decree, 422." or to foreclose against other defendants, 422. lies where interest made payable annually is in arrears, 422. mortgagee not to bring ejectment, 422. mortgagee's former right of possession after default, 423. mortgagor entitled to possession, 423. receiver not to be appointed, 423. 864 INDEX. Bill for Foreclosure of Mortgage — Continued. nature of a mortgage in Michigan, 423, 424. rights under assignment of mortgage or mortgage debt, 424 425. .equity of redemption cannot be sold under execution to satisfy the mort- gage debt, 425. court may decree payment of balance, 425. execution for deficiency, 425. where mortgage secures notes that have been allowed to run after maturity, time, 425. equity can give relief for every breach of condition, 426. statute giving clear title to foreclosure purchasers does no injustice to gen- eral creditors, 426. place of filing bill, 426. parties to bill of foreclosure. 426. See Parties. defendant brought in by publication, right to answer, 429. interested persons not made parties are not concluded, by the decree, 429. where grantee assumes payment, 430. mortgagee cannot enforce a promise to pay the mortgage, made to mortga. gor by the latter's grantee, 430. litigating adverse titles, 431, 432, 649. frame of bill, 434. averment as to incumbrances, 434. when special allegations necessary, 434. parties unnecessarily put to an answer have costs, 435. necessary averments as to proceedings at law and as to payment of the debt, 435, bill brought by mortgagee's executors, what must set forth, 435. no proof admitted unless bill contains the proper averments, 435. proper allegations connecting a defendant, 435, note. must aver that the debt is due, 435. must aver any assignment of the mortgage, 435. obtaining correction of description of premises in deed, 435, note, title obtained under foreclosure of first mortgage cannot be assailed in suit to foreclose a second mortgage, without special averments, 435. must aver performance of conditions precedent, 436. description of mortgaged premises, certainty, 436. as to privity of title, 436, note. abbreviation of names and allegation of identity, 436, note. should set out the facts, when seeking to establish equal priorities between two mortgages, 436. bill in aid of ejectment proceedings, how converted into foreclosure bill, 436. INDEX. 865 Bill for Foreclosure of Mortgage— Coniinueti. interest clause, notice of election, 436. formal proof of the mortgage, when dispensed with, 437. allegation of assignment to complainants, 437. averments to show fraud in prior deed, 437. necessity of special averments as to incumbrances, 437, Kofe, avoidance of a special defense, how pleaded, 437. particular defense set up by the answer, how met, 437. when cross bill unnecessary, 37, noie. in suit on ofEcial bond, 437, note. when bill in aid of execution will not lie, 437, noie. notice of /is pendens, filing, 438. notice to defendants, of object of suit, 438. statutory provision as to payment of principal and interest into court, 439. order of reference to compute amount due, 439. mandamus to commissioner to proceed on order of reference, 440. reference as to absentees, evidence upon, 440. hill filed for payment of money, examination of complainant as to payment, 440. allowance for insurance and taxes, 440. foreclosure not to be repeated for insurance and taxes, 648. effect of purchase at tax sale, 441. amendment of bill, 441. neglect to re-engross after amending, effect on sale, 160. hearing, 441. when entitled to a preference, 441. affidavits of merits, 441, 442. • at what time it may be had, 442. course where bill has been taken as confessed, 442. proof upon which to base order of publication, 442. reference as to situation of mortgaged premises, 442. decree, 442, for sale, 442. may include a sum which has fallen due since the commencement of suit, 443. default subsequent to decree, 443. installments accruing after decree, 443. practice is to give decree for everything due at the time when it is granted, 444. effect of payment of an installment, 444. proceeding for further decree on additional installment, 444. effect of a default in a suit to foreclose for an installment, 444. 109 866 ■ INDEX. Bill for Foreclosure of Mortgage — Continued. court should always, for itself, pass upon the evidence, 444. determination of amount due, decree conclusive, 444. sale of premises, virhen to be of the whole, 444. application of prbceeds of sale, 445. English doctrine of tacking not adopted here, 445. sale of mortgaged premises under decree, 148. Sii Sales Under De- crees. sales in foreclosure proceedings against non-residents, etc., 445, 446. foreclosure by assignee, considerations for assignment, 446. consideration in mortgage not to be attacked by parol, 446. estoppel against purchaser of equity of redemption, 447. cross bill nol necessary to have premises sold in inverse order of aliena- tion, 447. postponement of first to second mortgage, 447. voluntary payment to wrong person after notice, 447. burden of proof in foreclosure, 447, 448. production of the mortgage and- securities, 448. presumption of payment when due unless securities are produced, 448. unappealed decree binds the parties, 448. decree should follow the case pleaded and the allegations of the bill, 448. validity of decree not to be attacked collaterally for mere irregularities, 449. outstanding creditors when not concluded by decree, 449. decree as to fixtures, third parties when not bound, 449. recovery confined to sum actually secured, 449. decree for face of bond, sale enjoined, 449. effect of complainant's parting with his interest before answer, 449. ex parte procedure after defendant's failure to appear, 449. effect of allowing bill to be taken as confessed, as an admission, 449, proof that complainant does not own the note sued upon, effect, 450. agreement endorsed after muturity on note, to pay greater interest, 450. second mortgagee who has foreclosed succeeds to mortgagor's rights, 450. foreclosure for a small sum of interest, held oppressive, 450. interest on decrees, 450. compound interest on past due installments of interest, 450. reasonable time allowed for the payment of money definitely fixed by de- ■cree, 451. guardian ad litem not to join in answer making admissions binding his ward, 451. tender, its requisites and effect, 451, 452. statutory penalty for failure to discharge mortgage, 451, 452, 453. jurisdiction of equity, amount in controversy, 453, INDEX, 8tt7 Bill for Foreclosure of Mortgage — Continued, solicitor's fee in mortgage, 453, 454. set off, in foreclosure, 454, 455. right to fixtures, 455, 456. effect of a party's death, 456, 457. personal decree, when allowed and when not, 457, 458, 459, 463. practice in regard to infants or parties brought in by publication, 458, 459, 624. liability of guarantor of collection of mortgage debt, 459. decree for deficiency, when rendered, 459. writ of assistance, 160, 162. See Writ of Assistance. application of proceeds of sale and surplus, 460, notice of application, 461. execution for deficiency, 462. costs, 560. Bill for Partition. See Partition. Bill for Probate of Foreign Will, 530. Bill for Specific Performance, nature of, and when proper, 632. when granted, 632, 649, note. of contracts for conveyance of lands, discretion of court, 633. equity recognizes the rights of assignees, 633. not usually enforced in case of contracts relating to personalty, 633. when refused, 634. Building contracts, 636, note. where clearly inequitable, 634. where the decree would be vain or imperfect, 634- cases of arbitration, 634. certain agreements to form partnership, 634. contracts must be just and equal, 634. contracts must embody the real understanding of the parties, 634. parol evidence to show contract unfair, 634. burden of proof on complainant to show superior equities, 635. there must be no misrepresentation or fraud, 635. what misrepresentation will be a defense, 635. in case of laches, 635, 636, note. want of mutuality in land contract, 635. inadequacy of price, 636. unfounded expectations of aid, etc., not a defense, 636. when time is not of the essence, vendor bound to convey on payment, 636. tender of purchase money, 636. failure to tender performance and demand deed, 636. 868 INDEX. Bill for Specific Performance — Conhnued. delivery of deed should be simultaneous with payment, 636. vendor is bound to give a good title, 637. title is presumed to be good, 637. vendee not compelled to accept a doubtful title, 637. where vendor can only make title to an undivi 1 ed interest, 637. seller cannot have specific performance unless he offers to put purchaser in possession, 637. of ai> expired lease, 637. of parol agreement to convey lands, 637. part performance may take case out of statute of frauds, 637. contract must be certain, 637. what is part performance, 637, 638. possession otherwise explained, 637. I ground of interference of the courts, 638. not granted, when part performance is capable of full pecuniary meas- urement, 638. part payment not enough of itself, full payment, quaere, 638. contract must be clearly proved, 643. and be the same set forth in the bill, 643. where party dies before executing conveyance, 638. effect of conveyance and decree, 639. of defective conveyance of real estate, 640. parties, 640 ; 24, note. wife not a proper party, when, 641. stranger c mnot sue, 641. death of a party before completion, 641. assignee may enforce, 641. assignee, when to be made a party, 641. infants cannot sue or be sued for, 641. frame of bill, 641. description of written contract, 642. where contract is by parol, 642. averment of performance or of willingness to perform, 642. the land should be accurately described, 642. should contain allegations of facts, not recitals of evidence, 642. may be framed for specific performance or cancellation of the con- tract, 642. prayer for correction of mistake in description of premises, 642. to have conflicting interests determined, 643. defenses, 643. special defenses should be set forth in the answer, 643. INDEX, 869 Bill for Specific Performance — Continued. what will be a defense, 643. decree, 644. when final decree made at the hearing, 644. form of, in U. S. court, 644, note. when reference ordered, 644. compound interest may be required, 644. right to, of party in default, 644. jurisdiction, amount in controversy, 644. payment into court of amount still due, 644. re-conveyance by third person to vendor, 645. proceedings resulting in decree for, shown in action at law to meet evi- dence of a contract, 645. dower and homestead interest, 645. order for specific performance, when not final, 213. Bill in Aid of Execution, ground of relief, 403. execution must have been issued, 403. execution need not have been returned, 404, 413. if execution has been returned, new one need not have been taken out, 404. cannot be drawn to reach non-leviable property, 404. right to file is complete when execution is issued, 404. must be filed after levy and before sale, 404. reasonable provision for wife when not set aside on, 405. need not allege defendant's insolvency, 413. or that he had sufficient personal property in the county to pay the judg- ment, 413. or that the officer holding the execution made an effort to find it, 414. Bill in the Nature of Supplemental Bill. distinction between, and supplemental bills, 355. form of, 355. the bill is an original bill, 355. effect of, 355. proceedings upon, 355. Bill of Costs, 565. See COSTS. Bill of Discovery, nature of, 378. uses of, 378. will not lie where the facts sought are in knowledge of any witness, 378. what bill must show and state, 378, 379. answer under oath waived, no ground of relief can be set up that rests merely on the necessity of a discovery, 379. 870 INDEX. Bill of Discovery — Continued. discovery in aid of defense at law, 379. stay of proceedings until answer, 379. party must be diligent, 379. prayer for relief in addition, 379. demurrer both to discovery and relief, 379. no hearing upon, 379. abatement of, after answer, no revivor, 342. defendant can move for costs as soon as answer perfected, 379. no longer used in Michigan, 12, 379. Bill of Interpleader, nature and purpose of, 380. lies though the party has not been sued at law, 380. ' or has been sued by one claimant only, 380. complainant must be in possession, 381. and must claim no interest, 381. must show a right to compel defendants to interplead, 381 . complainant must appear uncertain as to whose is the right, 381. what privity necessary between all the parties, 381. complainant must show title in himself, 381. when proper, 381. when interpleading not ordered, 649. , time to file, 381, 383. absolute identity in conflicting claims not requisite, 381. naked trustees or stakeholders liberally protected, 382. frame of, 382. what should allege, 382. should negative interest in complainant, 382. claims of defendant should be specifically set forth, 382. should show what as to defendants, 382. not to be used collusively, 383. affidavit of non-collusion must be filed, 30, 383. fact of collusion not determined on counter affidavit, 383. money due must be brought into court or offer to do so must be made, 383. prayer of, 383. defenses to, 384. demurrer, when lies, 384. answer to, 384. decree, when made, 384. replication and proofs, 384. injunction not isslied till money paid into court, 384. injunction upon, stays all proceedings, 384. INDEX. 871 Bill of Interpleader — Continued. taking as confessed, 385. answer of one defendant may be read against the others, 385. stranger to record cannot be heard except after amendment to the bill, 385. hearing, 385. when final decree made on, 385. dismissal of complainant with costs, and reference, 385. default by one defendant, 385. decree, what one interests complainant, 385. death of complainant after decree, no bill of revivor necessary, 385. dismissed, no further proceedings by consent, 385. costs on, 386, 559. interest, when not stopped by, 386. Bill of Review, nature and purpose of, 369. distinction between, and rehearing, 369. lies for error of law, or upon discovery of new matter, 369. for error of law, 369. the error must appear on the decree and pleadings, 369. decree, how treated, 370. what may be looked into to find errors, 370. substantial errora only, noticed, 370. when such bills justified, 370, will not lie on decree affirmed on appeal, 370. upon discovery of new matter, 370. newly discovered evidence, what must be, 370. matter discovered since decree, 370. leave rests in discretion, 371. cumulative evidence, want of diligence, 371. bill lies after affirmance or reversal of decree on appeal, 371. applies only to a final decree, 371. proper course to amend confirmed report, 142. concerns the original controversy only, 371. parties, 371. who can file, 371. who can file an original bill in the nature of, 372. none but persons having an interest can maintain, 372. leave to file, must be special, 372. application must be by petition, 372. what petition should state, 372. what should ask, 372. description of the new evidence, 372. 872 INDEX. Bill of Review — Continued. affidavits on hearing application, 372. rests in discretion, 373. not granted unless decree has been performed, 373. security for full performance of decree, 373. payment of money or dismissal, 373. deposit or security, 373. in divorce cases, 373. delay in filing petition, 373. order of leave cannot be made at chambers, or vpithout notice, 374, bill filed without leave, may' be cjismissed on motion, 374. circuit court cannot alloYi^ upon decree made by supreme court with- out leave granted, 241, 374. - practice on, 374. order allowing, not appealable, 212, 374. order denying, is appealable, 374. within what time to be brought, 374. in U. S. courts, 374, note. proper time should appear on face of bill, 374. frame of, 375 what should state, 375. i prayer of, 375. supplemental bill may be added, 375. defenses to, 376. demurrer the proper defense, 376. if bill be brought on new matter, defendant must plead or answer, 376. what matter should be pleaded, 376. order allowing demurrer may be pleaded, 376. defense where decree is impeached for fraud, 376. questions determined on hearing of petition, 376. 'demurrer overruled if one error shown, 376. practice, orders and decree upon, 377. Bill of Revivor, when necessary or proper, 340, 341. lies to bring in whom, 334, 341. when bill of revivor and supplement necessary, 341. what necessary to entitle a party to revive, 341. death of a defendant before appearance, 341. mortgagor's death before proceeding for further decree on additional in- stalment, 341. where there is an original bill and a cross bill thereto, 341. there must be a matter to be litigated, 342, INDEX. 873 Bill of Revivor — Continued. who can file, before decree, 342. death of a sole complainant, 342. death of one of several complainants, 342. by husband and wife jointly, 343. . death of a defendant before decree, 343. after decree, 343. against whom to be filed, 344. where the abatement is caused by the death or marriage of a sole complainant, 344. or by the death or marriage of one of several complainants, 344. where the suit is continued by the surviving complainants alone, 344, or by the representatives of the deceased complainant alone, 344. on death of one of several defendants, 344. after decree, who to be made parties, 344. frame of, 345. must pursue the original bill, 345. should show complainant's title to revive, 345. statements of new matter, 345. what should pray, 346. what questions are before the. court upon, 346. prayer for answer to original bill, 346. prayer for subpoena to revive, 346. or to revive and answer, 346. defenses, 346. demurrer, 347. plea, 347. answer, 347. . when unnecessary, 347. confined to what matters, 347. exception for impertinence and insufficiency, 348. cannot dispute merits of decree, 348. replication to, 348. hearing, 849. when necessary or unnecessary, 349, 350. manner of, 349. against whom set down for, 350. when must be separate, 350. effect of revivor, 350, 351. amendment of original suit, 351 attachment for not answering amended bill, 351. effect where revivor is by a new complainant, 351. 110 871: INDEX. Bill of Revivor — Continued. or whefe the abatement is by a defendant's death, 351. where there is a cross bill, 3.!)1. Bill in the Nature of Bill of Revivor, nature and uses of, 352. why said to be an original bill, 3f'3. distinction between, and bills of revivor, 353. benefit of former proceedings is obtained upon, 353. use of the pleadings and depositions, 353. advantage of the decree, 353. parties to, 354. form of, 354. defense to, 354. Bill of Revivor and Supplement, nature and purpose of, 358. how framed, 358. how proceeded upon, 358. defenses to, 358. hearing of, 358. dismissal of bill by complainant, a bar to, 104. Bill to Carry Decree Into Execution, when necessary, 356. decree is not, generally, varied, 356. sometimes varied, 356. or not enforced, 356. who can call the decree in question, 357. nature of the bill, 356. Bill to Enforce Mechanics' Liens, 508. See Mechanics' Liens. Bill to Examine Witnesses De Bene Esse, nature of, 402. when sustainable, 402. object of, 402. what should contain, 402. must be accompanied by affidavit, 30. depositions de bene esse, when valid, 402. rules governing, 402. seldom filed in Michigan, 402. Bill to Give Deed the Effect of a Mortgage, 441, note. Bill to Perpetuate Testimony, purpose of, 396. rsTDEX. 87S Bill to Perpetuate Testimony — Continued. ' when may be brought, 396. complainant must have an interest in the subject matter, 396. necessary that defendant claim an interest, 3517. ground of necessity must be shown, 397. what must appear, as to the facts, 397. jurisdictional fact should be made clearly to appear, 397. frame of, 397. what must state, 397, 398. when affidavit to be annexed, 30, 398. prayer of, 398. should not involve other matters, 398. defenses, 399. amending bill, 399. dismissing, for want of prosecution, 399. cause improperly brought to hearing, dismissed, 400. is never brought to a hearing, 400. witnesses examined, cause is at an end, 400. deposition filed, order to use, 400. order is on motion and notice, 400. costs to defendant on motion, 400. now seldom resorted to, 400. summary method in place of, 400. Bill to Procure Discharge of Mortgage, matter in dispute need not exceed $W0, 17. not sustained, party may have decree for redemption, 478, when the whereabouts of the mortgagee is imknown, 453. Bill to Protect Homestead. from invalid foreclosure, wife may file, 432. must show all facts necessary to the description of a legal homestead, 436. Bill to Quiet Title, 523. See Quieting Titl^. Bill to Redeem a Mortgage, nature of equity of redemption, 464. deed absolute, when treated as a mortgage, 465. who may redeem, 466, 467. the remedy to test the validity of a statutory foreclosure, 467. after statutory foreclosure, presumption as to payment over of illegal al- lowance, 467. vendee of equity of redemption stands in mortgagor's place, 468. effect of redemption by subsequent mortgagee, 468. redemption by mortgagor or his vendee, hov/ construed, 468. redemption must be of the entire mortgage, 468. 876 INMDX. Bill to Redeem a Moitgage— Continued. junior encumbrancer may redeem a jrior mortgage, 469. marshaling the burden, on redemption, 4(39. redemption by subsequent mortgagee, 469. where mortgage of indemnity is foreclosed, 469. within what time to be filed, 469, 470, 471. parties complainant, 471. parties defendant, 472. bill may be framed with a double aspect, 474. bill filed by a person other than the mortgagor, what must show, 474. requisites of bill, 475. terms of redemption, 476, 477. costs, 476, 556. by a judgment creditor, 476. offer to pay amount due, 476. ■ , decree, 477. time allowed for redemption, 477. time rests in discretion, 477. time will not generally be enlarged, 477. on bill filed' to cancel mortgage' past due and in course of foreclosure, 477. time not extended for redemption on statutory foreclosure, 477. when should direct amount to be paid to assignee, 478. between co-defendants, 478. where party fails to sustain bill for discharge, 478. deposit with register when stops interest, 478. receipt of check by register of deeds when not deemed payment, 478. register of deeds should not receive anything but money, 478. statutory penalty for refusing to discharge is recoverable on, 478. demand before suit, and offer to pay, 478. decree in case of failure to redeem, 478. effect of dismissal on, 478, 479. affidavit of default in payment of redemption money, 479. order of course for dismissal of bill, 479. decree with reference for accounting, how affirmed, 479. when decree not binding, 479. sworn answer binds complainant unless controverted, 479. joint bill not sustained if ground of joint claim fails, 496. Bill to Reform a Deed, jurisdiction, amount in controversy, 16. Bill to Remove Cloud on Title, not sustained when cloud supported by an equitable title in defendant, 525. INDEX. 877 Bill to remove Cloud on Title — Continued definition of a cloud on title, 526. how long cloud rests on title, 526. deducing complainant's title through a judicial sale, 526. questions of tax liens, 526, 527. costs, 563, note. Blind Persons, answer of, 88. aflSdavits of, how taken, 286. Bona Fide Purchase, plea of, 69. Bond, < to secure costs, from non-resident, 16, 56, 517. interest on bond, 148. on a supplemental bill in the nature of a bill of review, 197. damages upon injunction bond, decree conclusive, 186. bond to pay decree, 187, note. on appeal, 215. See Appeal. on allowing injunction, 291. on injunction to stay proceedings at law, 302. See Injunctions. by defendant in ne exeat, 328. upon an attachment for contempt, 539 proceedings on, 543. by next friend or guardian of infant, 619, 620. by guardian, on order' to sell real estate of infants, 627. by general guardian on partition of real estate of infants, 630. Breach of Injunction, 310. See Injunctions. Briefs, submission of appeal on, 225. furnishing printed copies, 225. failure to file, 226. Burden of Proof, after answer in chancery, 84. of showing transaction to be fraudulent, by independent evidence, 85. in accounting, 218. in foreclosure, 447, 448. to show deed absolute a mortgage, 465. when a prima facie right is disputed, is on the attacking party, 465, note. on complainant, in specific performance, 635. of showing fair dealing, 648. on bill to set aside deed for grantor's incompetency, 648. 878 INDEX. c. Calendar, placing plea on, 71. when cause placed at foot of, 165. method of making up, 165. cases on appeal, 223. ' causes, when motions have precedence, 226. Caption, of decrees, 188. of orders, 270. Case, to be furnished court on hearing, 165. Cause, , when deemed at issue, 113. setting down for hearing, not necessary, 164. how arranged upon calendar, 165. court may give preference to, in hearing, 165. submission of, 168. hearing of, 168. See Hearing. conduct of, before commissioner, 130. transfer of, 162, 163. See Transfer of Causes. ordering it to stand over to add parties, 173. to supply proofs, 174. how arranged upon calendar, on appeal, 223. order of hearing, on appeal, 224. hearing on appeal, 224. See Appeal. submission on briefs, on appeal, 225. settling cases heard in open court, 250, 649. hearing of, on further directions, 254. Caveat Emptor, applies to judicial sales, 183. Certificate, of counsel, to demurrer or plea in U. S. court, 58, 66, note of commissioner, upon a reference, 136. with separate report of debts or legacies, 137. on petition fpr re-hearing, 195. on settling case, ^51, 252, 253. where affidavit is taken out of state, 287. of allowance of an injunction, 301. of a ne exeat, by injunction master, 327. INDEX. 879 Cestuis Que Trust, as parties in ioreclosure, 433. when necessary to parties to bill to redeem, 474. Chambers, power of judge at, 121, 122, 123. power of U. S. circuit judge, 123, note. Chancellor, office abolished in Michigan,10. Chancery Court, history of, in Michigan, 3. Charitable Uses, statute of, not operative in Michigan, 646. Check, not deemed pajrment of redemption money, 478. Children, not to testify to adultery, in divorce, 579. custody of, in divorce, 596. legitimacy of, effect of decree of divorce, 597, 598. liability of father to support, 598. orders for custody, etc. of, on limited divorce, 600. custody of, circuit judge caimot adjudicate on habeas corpus at chambers, 123. Circuit Court Commissioners, general powers of, 120. powers in chancery cases, 120. general statutory powers, how restricted, 121. not to vacate orders of circuit court or judge, 121. granting injunctions, when to give notice, 121. must be an attorney and counsellor at law of the supreme court, 121. not to act when interested, 121. compelled to proceed on order of reference, m foreclosure, 121, 440. powers of circuit judge at chambers, 121, 122, 123. former powers of masters, 1 23. when not to exercise power expressly confided to circuit judge, 123. empowered to perform master's duties, 124. to perform the duties of injunction masters, 124. order by supreme court not affected by order of, 124. order by one, not to be affected by that of another, 124. subsequent application in reference to same matter, 125. may endorse his refusal of order or injunction, 125. where disqualified to apt, 125. 880 UNDEX. Circuit Court Commissioners — Continued. special commissioner, 125. notary may act by stipulation, 125. circuit court commissioner of an adjoining county, 125. affidavit to support action by, 126. staying of proceedings, power of, 126. when forbidden, 126. effect of stay, 126. on execution against the body, 126. supreme court can prescribe rules to govern, 126. entitled to records and files, of predecessor, 127. hearing and enforcing unfinished business of predecessor, 127. duties in chancery matters, 129. practice before, 129-136. absence of, on return day of process, 131. " order of reference, after /ro confesso, 50. proofs before, aSter^ro confesso, 50. fees of, cross-examination of witness, 135. fees on posting notice of sale, 136. duty to keep register, 136. must file orders with the register, 136. appeal from order of, ] 36. security for costs from non- resident, 56. irregularities in proceedings before, waiver, 142. when commissioner to pay costs himself, after sale, 156. power to grant injunctions, 299. to stay proceedings at law, 306. examination by, under creditors' bill, 415. proceedings on reference, 129- See Reference. report on reference, 136. See Report of Commissioner. accounting before, 145. See Accounts. sales by, 148. See Sales under Decrees. Circuit Courts, jurisdiction of, in chancery, 5. jurisdiction in probate matters, 20. proper one to commence suit in, 9. terms of, in chancery, 165. Circuit Judge, powers of, 10. powers at chambers, 1 21-123. in U. S. courts, 123, note. INDEX. 881 Claim, of appeal from commissioner, 136. of appeal, 215. circuit courts have no original jurisdiction of claims against estates, 20. to surplus moneys on a mortgage sale, 460. Clerk. See Register. securities, how to be taken, on partition sale, 506. investments, 506. Clerk of Supreme Court, cannot impose costs on prolix record, 224, 238. must keep a special motion book, 228. fees of, 238. inspection of papers in his office, 240. Cloud on Title, 526, 527. See Quieting- Title. Commencement of Suit, what is, 7. Commissioners. See Circuit Court Commissioners. Commissioners in Partition, appointment of, 493. oath of, 493. ■• how must proceed, 498. report of, 494. ^ ' ^ expenses, how allowed and paid, 494. refusing to give evidence under, suit in another state, 535. Commission to Take Proof of Foreign Wills, 20, 531. Commission to Take Testimony. where may be executed,- 117. how and when may issue, 142. authority to administer oaths, 143. parties and counsel may be present at the examination, 143. examination may be oral, 143. supreme court may prescribe rules, 143. and use of written interrogatories, 143. testimony to be reduced to writing, signed and filed with register, 143. petition for, 143. notice of petition, to adverse party, 143. when adverse party wishes to join, 143. interrogatories, witnesses out of state, 144. execution and return, 144. refusing to give evidence tmder, for suit in another State, 535. Ill 882 INDEX. , Commitment, for non-payment of interlocutory costs, 537. process of, for contempt, 547. Competency of Witnesses, 115. See Witness. Complainant, putting to his election, 110. See Election. substituting personal representatives, on death of, 337. Condonation, how defined, of cause for divorce, 591. not so easily inferred against wife as against husband, 592. a bar to divorce, 592. Conduct of Cause, who entitled to, on reference, 130. when it may be committed to the opposite party, 131. Consent, cannot confer jurisdiction not vested by law, 16. when necessary to dismiss bill, 103. testimony may always be taken by, 115. decrees by, 202, 203. See Infants, 623. agreements between counsel must be,reduced to foiin of rule by, 230. orders by, how altered, 277. i to taking creditor's bill as confessed, 414. age of, in marriage, 573. decrees not made by, in divorce, 596. Contempt, , nature and kinds of, 533. ordinary contempts, and how purged, 533. extraordinary contempts, 533. power of court to punish, 533, 534. statutory provisions, 533, 534. misconduct ya«> curice, punished as criminal contempt, 534. instructing witness not to answer questions, 534. vote. publication in newspapers by attorney, 534, note. attachment issued by register without order of court, invalid, 535. , in maintaining possession of premises, 535. disregarding injunction when dismissal of bill appealed from, 535. refusing to give evidence under commission, suit in another state, 535. punishment for, 536. by disobeying order to pay money, 536. non-payment of interlocutory costs, demand, 536, INDEX. 883 Contempt— Continued. commitment for, 537. process of, to enforce civil remedies is one of extreme resort, 537. allowable to compel obedience to order requiring payment of tempo- rary alimony, 537. other than for non-payment of money, 534, 537. interference with receivers, 537. breaches of injunctions, 311, 537. disobedience by party of order served on solicitor, 537. disobedience resulting firom taking advice of counsel, 538. appeal from order that has been disobeyed from, effect, 538. belief that court had no jurisdiction to issue the order, a slight excuse, 538. methods of proceeding for, 538. proceeding by attachment, 538. foundation for, how laid, 538. copies of affidavits to be served, 538. order for attachment, 539. for not returning process, 539. bail bond for appearance, 539. excuse for not bringing party before the court, 540. proceeding upon return of attachment, 540. interrogatories, 540, 541. answer to interrogatories, 540, 541. ' affidavits, 540. reference to commissioner, 541. order for punishment, requisites, 541. by order to show cause, 541. foundation for, how laid, 541. what should require, 541. papers to be personally served on accused, 541. hearing, 542. neglect to appear, or showing no sufficient cause, 542. habeas corpus, when necessary, 542. neglect or refusal to pay interlocutory costs when ordered, 542. proceedings on bail bond, 543. punishment of, 544. amount of fine, 544. imprisbnment, 544, 545. amount of loss sustained, how ascertained, 545. whole inquiry of contempt and damages not to be comprised in one order, 545. 884 INDEX. Contempt — Continued. record of conviction for contempt punished summarily, 545. attorney, when to bt tried on specific charges, 545. proof as to facts, of violation of order, 545. foundation for rule to show cause, 545. breach of injunction, merits of cause not considered, 545. order on conviction, 546. process of commitment, 547. sequestration, 547. who may apply to punish, 547. mandamus to vacate illegal injunction, 547. refusal to punish for, is not reviewable, 547. eifect of a contempt, 548. how cleared, waived or discharged, 549. indictment, 551. -appeal, when lies, 210, 551. process of, effect of amending bill, 102. Continuance, motion for, notice of, 230. by complainant, full counsel fee allowed, 238, note. Contracts, specific performance of, 652. See Bill for Specific Performance. Conveyance. See Deeds. Conviction of Crime, as a ground for divorce, 581. Copies, of subpoena, varying from original, irregular, 33. of bill, default for want of service, waiver, 41. of bill, order to deliver, 55. of demurrer, must be served, 62. of plea, must be served, 70. of pleadings, time of service, 70. of answer, must be served, 83. of deed, not made evidence by attaching to answer, 85. of summons, service of, 130. of order of reference, unnecessary, 130. of papers on which special application is founded, service, 164 of notice of appeal, to be filed with clerk, 217. of affidavits served with notice of motion, 231, 281. of papers, costs for, 566. Corporation, bill in favor of, how to be signed, 28. INDEX. 885 Corporation — Continued. where may be sued, 35. place of business, 35. jurisdiction of chancery over, 35. service of process on, 34, 35, 37. substituted service for want of finding officers, 35. on foreign coiporations, 35, 36. appearance of, how entered, 37, 44. answer of, how compelled, 45. officers and members, when may be made defendants, 89. no relief against them, 89. answer of, 88. usually put in by attorney under corporate seal,, 88. and without oath, 88. how verified to dissolve injunction, 88. should be signed by officers, 88. of a corporation sole, 88. officers and members, no relief against, 89 staying proceedings against, 306. receiver against, 318. voluntary dissolution of, receiver, 319. voluntary dissolution of, appeal does not lie for review of proceedings, 046. omission to join all stockholdefs as complainants, 646. Costs, general rules, as to the granting or refusal of, 552- rest in court's discretion, 552. meaning of this rule, 552. when both parties are equally innocent, 552. must be expressly ordered, 552. payment of costs of cause not ordered without taxation, 553. upon interlocutory applications, 553. on death of a party before decree, 553. successful party never pays costs, 553. when party successfully opposes motion and order is silent as to costs, 553. when should be applied for, 553. do not always follow decree in favor of a party praying relief, 553. in general, prevailing party entitled to, 553. on dismissal of bill or petition, 103, 553. where no special provision is made by law, 554. to parties improperly made defendants, 554. or improperly put to an answer, 435, 886 / INDEX. Costs — Continued. when not imposed on infants, 554. not awarded agaihst a nominal party, 554. party compelled to come into court by defendant's improper conduct, 554. against subsequent purchaser contesting amount due on foreclosure, 554. introduction of scandalous matter punished by withholding, 554. not allowed on reversal when claim grew out of iniquitous transac- tion, 554. liability for, on appeal bond, 554, note. apportioiunent of, 555. when parties both in fault, denied to either, 556. among several defendants, 556. set-off of, 556. costs out of the fund, 557. in what cases allowed, 557. to trustees, agents, or receivers, 558. in suits for the administration of estates, 558. when guardian charged with costs, 558. construction of wills, 559. on bills of interpleader, 559. on bills of foreclosure, 560. to guardian ad litem, 560. out of what fund allowed, 560. taxation, 561. principles of taxation, 561. distinction between the different parties, 562. as between party and party, 562. as between solicitor and client, 562. principle of taxation adopted must be adhered to, 563. is a ministerial act, 563. not reviewable on error, 563. termination of the suit is what entitles party to, 564. who may tax costs, 564. notice of taxation, 564. in proceedings to examine de bene esse, 119, note, bill of costs, 565. must be joint, 565. must specify items, 565. affidavits annexed, 565. affidavits in opposition, 566. INDEX. 887 Costs — Contimied, taxing costs for printing, 566. for attendance of witnesses, 566. for copies of papers, 566. affidavit as to items, 566. where party is a witness, 566. costs for witnesses, 566. when traveling expenses not to be included as costs, 566, note, what costs allowed to prevailing party, 567. costs in divorce cases, 567. where several suits abide decision of one, 567. service of copy, 568. filing of bill as taxed, 568. duty of taxing officer, 568. re-taxation, 568. how to be applied for, 568. not granted, gross negligence through delay, 568. none, where party neglected to appear on taxation, 569. items not objected to on taxation, not considered, 569. what affidavits may be used on motion for, 569. costs of, 569. cannot be urged on motion for modification of decree, 569. payment of, how enforced, 569. interlocutory costs, 536, 542, 570. costs upon final decree and appeal, 570. relator in information is liable for, 8. none, proofs taken under order /j-o confesso, 47. upon disclaimer, 92. on amendment requiring new or further answer, 97. on amendments after demurrer, 98. on amendments in cases remanded, 242, note. of separate report of commissioner, 136. when commissioner to pay, after sale, 156. appeal bond covers what costs, 219, 220. of motion, 260, 261. for appearing to oppose petition, 264. where revivor suit is unnecessarily brought to hearing, 349. when defendant may move for, on bill of discovery, 379. on bill of interpleader, 386. of examinatioi) in creditor's suit, 415. of suit brought by receiver, 416. on bill to redeem, who pays, 476. 888 INDEX. Costs — Continued. of commissioners in partition, 494. upon final decree for partition, 506. upon dismissal or discontinuance of partition suit, 507. in mechanics' lien suits, 520. on bill to quiet title, 529. appeal lies from decree for, 564. in divorce cases, 604. guardian ad litem not usually liable for, 622. next friend's right to and liability for, 621, 618. when not awarded against infants, 621. security for. See Security for Costs. Costs in Supreme Court, generally in court's discretion in chancery cases, 234. on motion, to prevailing party, 234. court equally divided, to neither party, 234. in cases of a public nature, 234. . allowed against Auditor General's appeal bond, 234. to appellant when decree modified in his favor against complainant, 235. to unnecessary parties, 235. incident to unsuccessful defense, on whom, 235. against administrator, 235. not granted against a merely nominal party, 235. not to parties who have not appealed, 235. of printing record in partnership accounting when neither party prevails, 235. delay in serving printed record, 224. in doubtful or novel question of practice, 235. against party declining to call up motion noticed by him, 236. to one defendant as to whom decree of dismissal is affirmed though reversed as to the rest, 236. instances when costs were denied, 236. to appellee, transcript filed before motion to dismiss was called up, 236. I for vexatious appeals, 237. taxation of, 237. who may tax, 237. notice of taxation, 237. for printing case and points, 237. for prolix record, 224, 238, 239. counsel fees, 238. , on submission of cause on briefs, 238. on motions, 238, INDEX, 889 Costs in Supreme Court — Continued. clerk's fees, 238. copies of stenographer's minutes, 239. expense of maps printed in record, 239. allowance to accountant, 239. for printing record, 239. disputed matters of fact bearing on, not reviewed on affidavit, 240. relaxation, 239. how to be applied for, 239. party who failed to appear on taxation, not heard, 239^ Counsel. $ee Solicitor. all solicitors are counsellors in Michigan, 10. signature to bill unnecessary, 28. otherwise in U. S. circuit court, 29, note. certificate of, to demurrer or plea, 58, 66, note. when incompetent as a witness, 117. his consent to a decree binding on his client, 203. agreements between, form of, 230. fees in supreme court, 238. contempt resulting from taking advice of, 538. Court of Chancery, history of, in Michigan, 3. supervisory power over infants, 86. jurisdiction of. See Jurisdiction. Creditors, when may except to commissioner's report, 141. when may apply for a receiver against a corporation, 318. not injured by statute giving clear title to foreclosure purchasers, 426. when not concluded by foreclosure decree, 449. when unnecessary parties in partition, 484. how lien treated in partition, 484. attaching, priority of, 522. when share equally, proceeds of mechanic's lien, 522. Creditors' Bill, 403. See Judgment Creditor's Bill. Crops, 159, 408, 425. See Growing Crops. Cross Bill, nature and purpose of, 387. against co-defendants, complainant must be named a defendant, 387. constitutes but one case, 387. --^ in what cases brought, 388, 389. can be sustained only on matter growing out of the original bill, 388. 112 890 INDEX. Cross Bill — Continued. not restricted to the issues of the original bill, 388. cannot be maintained if same relief can be obtained in the original suit, 388. proper subject for, in foreclosure, 388. - when unnecessary, in foreclosure, 447. necessary if defendant wishes positive relief, 78, 388. cannot be maintained if defense to original bill fails, when, 389. lies for equitable relief only, 389. necessary to enable defendant to have a decree against a co-defendant, 389. proper time for filing, 389. filed after issue joined, staying proceedings, 390. must be brought before proofs closed, as a general rule, 390. filed after proofs closed, evidence taken on, cannot be read at hearing of original bill, 390. court may direct it filed after proofs closed, 390. frame of, 391. "*' confined to what matters, 391. should state what, 391. need not show any ground of equity to support the court's jurisdiction, 391. is treated as a mere auxiliary suit, 391. relief sought by should be equitable relief, 391. to stay proceedings, must be verified, 392, 394. in mechanics' lien sQits, must be verified, 518. defenses to, 392. to what pleas liable, 392. demurrer for want of equity, when will not lie, 392. when demurrable, 392. answer, 393. complainant in original bill need not answer until original is answered, 393. unless court otherwise specially directs, 393. order of course, for limited time to answer, 393. answer, when original bill has been amended, 393. proceedings on, 393. stay of proceedings, 393, 394. notice of application, 394. cross bill must be sworn to, 394. delay in filing bill must be accounted for, 394. hearing of, with original bill, 394. together with depositions taken on, 172. taken as confessed, evidence against complainant, 364. amending original bill, effect of, 394. priority of original bill, how lost, 394. INDEX. 891 Cross Bill — Continued. abatement of original bill, 394. evidence upon, 395. taken after close of proofs in original bill, 395. depositions, use of, 395. parties to, 395. revivor of suit after, effect, 351. decree dismissing is final, 210. in divorce suit, 592. Cross Examination, fees of commissioner upon taking, 135. Cruelty. See Extreme Cruelty. D. Damages, in injunction suit, decree conclusive, 186. for vexatious appeals, 237. suit retained to assess, 296, note. Deaf and Dumb Persons, appearance by, 44. answer of, 88. Death, ' of defendant after submission of cause, 184. decree nunc pro tunc, 184, 192. of a party, as a cause of abatement, 331, 332, 333. suggestion of party's death upon the record, 334. of a defendant before appearance, 341. of mortgagor, proceedings for further decree on installment, 341. of a defendant in creditor's bill, 345, 412. of mortgagee, parties to foreclosure, 427. of mortgagor, defendants in foreclosure, 430, 431. ' of a party to foreclosure, 456, 457. of a creditor, mechanics' lien, 516. of a party before executing a conveyance, 638. revivor of suit after, 334, 344. See Bill of Revivor ; Revivor. De Bene Esse, examination of vifitnesses, 117. See Witness. bill to examine, 402. when cannot be read on trial of issue of fact, 177. 892 INDEX. Debtor. See Judgment Creditor's Bill. examination of, upon a reference to appoint a receiver, 415. Decree, nature, uses and kinds of, 179. interlocutory decrees, 179, 180. making them final in form, practice condemned, 181. final decree, 180. what is, 180, 207. See Appeal. may be final as to only one of several defendants, 180. distinction between, and interlocutory decree, 180. between co-defendants, 181. requiring further order, 181. reservation of -liberty to apply, 181. case must be in readiness as to all the defendants, 185. who bound by, 182. ' who may take advantage of, 182. decretal orders, 182. ' evidence of, 183. Stipulations as aiding in interpreting, 183. effect of voluntary dismissal of bill, 183. second decree while appeal from prior one is pending, invalid, 183, 245. validity, collateral attack, 183. purchaser under, caveat emptor, 183. when premature, 183. acquiesced in, relief not enlarged on appeal, 183. ordering reference, to fix time of repayment, 184. ^ in matter of reference, is based on what, 184. entered in vacation, notice, 184. nunc pro tunc, death of a defendant, 184. rule as to parties, 184. against infants, 184. for specific performance, jurisdiction, 184. formal objections to frame of, when to be made, 185. should not be broader than bill warrants, 185. impeaching for fraud, 185. for payment of installments, 185. of foreclosure, conclusiveness, 186. for damages in injunction suit, 186. of municipal courts, binding till reversed, 186. , leave to dismiss bill conditionally, effect, 186. enrolled decree and proceedings in the suit constitute the record, 186. reading in evidence, 186. INSEX. 893 Decree — Continuea. non-residents, effect of appearance, and answer, 186. against absent defendants, 51, 186, 187, 430. interest on, 147, 187. of supreme court, needs no separate signing or enrolling, 187, assignment of interest, 187. enforcement, who can demand, 187. form of decree, 188. caption and title, 188. recitals, 188. ordering part, 189. declaratory part, 190. if by consent, it should be stated, 190. not confined to particular rehef prayed for, 190. must be founded on, and conform to allegations and proofs, 190, between co-defendants, 190. nunc pro tunc clause, 191 drawing up, 191 . settling, 191. entering, 192. method of, 192. necessary, to perfect decree, 192. when to be considered as entered, 192. stipulation for, 192. nunc fro tunc, 192, 193. rectifying, 193. 1. Before enrollment, 193. on petition or motion, 193. before it has been settled and entered, 193. omis'iion when supplied by distinct order, 194. application when to be made, 194. amendment without notice, when irregular, 194. by a re-hearing, 194. See Re- hearing. by a supplemental bill in the nature of a bill of review, 196. 2. After enrollment, 197. by petition, 197. enrolling, 198. / when to be made, 198. enrollment, how made, 198. necessary to authorize issue of process, 198, 206. for sale under, 149. notice of sale may be given before, 198, 89 i INDEX, Decree — Continued, what proceedings to be included in, 199, effect of recording, on title to real estate, 199. nunc pro tunc, 199- enrolled decree, how altered, 230. decree pro confesso, 200. ' must be by court itself, 2ClO. showing as to defendant's non-appearance, 200. impeaching collaterally, 200. re-hearing, 200. opening, court less indulgent, 201.. proceedings under, 201. taking of, confesses whnt, 201. when defendant entitled to notice, 201. unnecessary reference after, no notice requisite, 201. as to non resident, etc., defendants, 201. confirmation of, 202. confined to precise limits of bill, 46. none against infant, 47. decree Iry default, 202. at the hearing, cases of, 167. not considered a judgment of the court, 202. is taken at the peril of ihe party, 202. setting aside, 53. when opened or rectified, 194. what one authorized, 202. must be taken at a regular term, 202. decree by consent, 203. how far binding, 203. when relieved against, 203. as to infants, 202. not permitted in divorce cases, 203, note, 596. not appealable, 213. decree upon appeal, 243. See Appeal. ■execution of, 204. by what process, 204. by attachment, 204. by sale, 204. in partition cases, 204, 205. bill to carry decree into execution, 356. decree in lieu of conveyance, 204. by writ of execution, 204, 205. See Execution, INDEX. 895 I Decree — Continuea, / in mortgage cases, 205. See Writ of Assistance, 160. in divorce cases, alimony, 205. by imprisonment, when, 205, directing commissioner to execute deeds of real estate, 205. process of contempt, when necessary, 206. contempt proceedings. See Contempt. where decree directs execution of deeds by party, 206. assignee of decree must resort to court to have it enforced, 206, final and interlocutory, defined and distinguished, 208. what decrees are appealable. See Appeal. in general, cannot be altered on further directions, 256. against surviving partners for accounting for assets jointly held, 146, note. where necessary in revived suit, 350. on supplemental bill, 368. in foreclosure suit, 442, 448, 449. construction of bond conditioned to pay decree if injunction dissolved, 458. in partition suits, 491. in mechanics' lien suits, 519. in quieting title, 529. of divorce, effect on legitimacy of children, 597. allowing alimony, revision and alteration of, 607. how far binding on infants, 621 , 625. for specific performance, 644. when pi;oceedings remanded, 647. for deficiency on foreclosure, 459. personal decree — subpoena must give defendants' names, 32. prerequisites to, against absent, etc., defendants, 51. none against parties out of the jurisdiction, 430. of specific performance, 184, 185. where mortgage debt is secured by the obligation of another than the mortgagor, 429. where grantee in deed agreed to pay mortgage, 429. notice of object of bill, 438. when authorized in foreclosure, 457, 458, 463. when refused in foreclosure, 463. against collateral guarantors, 463, note. Decretal Orders, nature of, 182. 896 INDEX. lOeeds, bill to reform, jurisdiction, amount involved, 16. by bankrupt, setting aside, 19. who can have set aside, on repayment, 23. how to be set out in bill, 27. how validity of should be impeached in answer, 81. production and inspection of, 104. See Production, Etc. proving at the hearing, 171. by commissioners, upon sales under decrees, 156. when court can direct commissioners to issue, 205. decree directing party to execute, enforcement, 206. absolute, when treated as a mortgage, 465. of special guardian, on the sale of real 'estate of infants, 625. dealh of vendor before executing conveyance, 639. effect of conveyance and decree, 639. defective, specific performance, 474, 640. Default, at the hearing, 167, 174. decrees by, 202. See Decree. . taking bill as confessed, 46. See Bill. setting aside, 53. for want of service of copy of bill, waiver, 41. set aside by amendment after ^ra confesso, 52. Defense to a Suit, proceedings by a defendant previous to putting in, 54. employing a solicitor, 54. order to deliver copy of bill, 55. excepting to bill for scandal or impertinence, 55. motion for production of papers, 55. security for costs, 56. the different kinds of, 57. See Demurrer, Plea, Answer, Disclaimer, , Cross Bill. joinder of several defenses, 92. method of setting forth in answer, 79. right to make a new one after amending bill, 102. Deficiency, after foreclosure sale, how far endorser liable, 422. decree for, 430, 459. execution for, 462. Demand, of payment of interlocutory costs, 536, 570. of paymeiit of temporary alimony, 605. INDEX, 897 Demurrer, its nature and uses, 57; 58. must be founded on a point of law, 58. must be positive, explicit and certain, 58. must express to what parts of bill it extends, 58. ' general, must be good to tlie whole bill, 58. in U. S. courts, how to be suppdrted, 58. admits only what is well pleaded, 58. may be to the whole bill or a part, 58. to amended bill, should be to amended part, 58, 101. overruled by plea or answer, 59. is general or special, 59. general, sufficient when bill is defective in substance, 59. special,-indispensable on defects in point of form, 59, 60. cause of, how to be stated, 59. not applicable to pleas or answers, 5& when will lie, 59, 60. for want or misjoinder of parties, 59. may be good as to one defendant and bad as to another, 60. general allegations of matters merely going to make up a completed con- sideration are good on general demurrer, 60. does not admit complainant's construction as to legal effect of instrument, 60. speaking demurrers, 61. - several causes of, may be assigned, 61. separate demurrers, 61. when coupled with an answer, 61. to be filed with answer as one record, 61. setting it down for argument, 61.- by married women, 61. not to be separate from husband, without order, 61 . aemurrer ore tenus, nature of, 61. not proper unless a demurrer on record, 62. cause assigned must be co-extensive with demurrer on record, 62, only allowed on new grounds, 62. verbal, unauthorized in circuit court, 62. how signed, 62. need not be sworn to, 62. when to be filed, 62. not, in general, after obtaining time to answer, 62. service of, 62. noticing for argument, 62. 113 898 INDEX. Demurrer — Continued. effect of failure to notice for argument in U. S, courts, 63, note, effect of overruling, 63, 64. a frivolous demurrer, 63. further demurrer not received, 63. defendant must answer and pay costs, 63. leave to amend bill, 64. effect of allowing, 63. leave to amend on paying costs, 63. when not to be held bad, 64. withdrawing, defective demurrer, 64. amending demurrer, 64. amendment of bill after,! 64, order sustaining, is not final when, 212. order overruling, is not final, 212, 647. to bill of revivor, 347. to supplemental bill, 364. to bill of review, 376. to bill of interpleader, 384. to cross bill, 392. to bill to perpetuate testimony, 399. Deposit, on rehearing, 195. on filing supplemental bill in nature of a bill of review, 197. " on staying proceedings at law, 302, 306. on injunction against payment of taxes, 306. on bill of review, 373. for redemption, when stops interest, 478. before injunction to restrain collection of tax or assessment, 529, Deposition, de bene esse, how may be taken, 117. cannot be read on the hearing when witness can be sworn, 119. cannot be read on trial of a feigned issue if witness is present, 119. taken by summary proceedings under the statute, 119. when cannot be used, 120. when valid, 402. taken by stipulation before notary, etc., 128. power of officer, 128. notice of taking, 128. practice in taking, 128. subpoena may issue for witnesses, 128. stenographer to take, 128. INDEX. 899 Deposition — Continued. compensation of stenographer, 129. taken before circuit court commissioner, 133. must be signed by witness, 133. may be taken down in the narrative form, 133. where an interpreter is employed, 134. irregularity or unfairness in the taking, will be noticed by court, 134. filing, 135. in what time to be filed, 135. commissioner to return and file with register, 135. or copies cannot be read at hearing, 135. taken under a commission, 142. motion to suppress, 144, 168. to be heard before hearing of cause, 144, 168. on receiving deposition, register to notify solicitor, 144. notice of motion to suppress, 145. rules for taking should be strictly complied with, 145. should be read over by or lo the witness, 145. irregular to waive this, 145. motion to suppress, when unnecessary, 145. taken in cross suit, reading upon hearing of original bill, 172. reading of, upon ttjal of issue at law, 177. objections to an appeal, when too late, 245. before whom may be sworn to, 287. taken after alienation, pendente lite, 367. how taken and certified, to perpetuate testimony, 401. validity not affected by death of party before hearing, 456. Desertion, as a ground for divorce, 581, a cause for a limited divorce, 599. Devisee, revivor against, must be by bill, 334. his right to redeem from a mortgage, 486. Discharge, bill for, mortgage need not exceed $100, 17,453. where mortgagee's whereabouts is unkown, 453. of decree, 199. of mortgage, decree for redemption instead of, 478. statutory penalty for refusal to discharge mortgage, 452, 478. of mechanic's lien, by waiver or tender, 514. of mechanic's lien, penalty for refusal, 522. pf contempt, 549. 900 INDEX. Disclaimer, nature and uses of, 91. must be signed by the defendant, 91. effect of, 91. requisites of, 91. when deemed sufficient, 91. inconsistent with answer, the latter prevails, 92. interest afterwards discovered, 92. costs upon, 92, Discontinuance. See Dismissing Bill. Discovery, See Bill of Discovery, 378. demurrer to and to relief, 60. when complainant entitled to, 76. against officers and members of a corporation, 89. suit for cannot be revived if it abates after answer, 342. Discretion, in allowing amendment of answer, 89. in allowing amendment of bill, 96. in allowing amendment at the hearing, 99. to determine whether an interested person shall act as interpreter, 134. to order cause to be heard before commissioner, 169. as to costs in supreme court, 234. as to costs generally, 552. as to costs in divorce cases, 567. to allow injunctions, 289. of receivers, when courts will not interfere with, 320. in granting leave to file a bill of review, 371, 373. as to time allowed for redemption, 477. in granting specific performance, 633. Dismissing Bill, by complainant — of course, with costs, before decree, 103. must be upon consent, after decree, 103. consent not enough in case of creditors' bills, 103. without costs, when, 103. when bill was filed without his consent, 103. by one of several complainants, 103. effect of voluntary dismissal, IDS. cannot be pleaded in bar, 103. bars bill of revivor and supplement, 104. conditional dismissal, 104. IKDEX. 901 Dismissing Bill — Continued after decree, parlies must be brought back by the usual process, 104. effect upon decree, 182. by defendant — for want of prosecution, 108. not, while demurrer is pending, 108. nor pending abatement by complainant's death, marriage or bankruptcy, 108. motion by one defendant who has perfected his answer, 108. effect of, 109. restoring bill, 109. i does not prevent a new bill, 109. affidavit to procure dismissal, 109. service of notice, 109. showing against, 109. by the court, at the hearing — for want of proper parties, 173. for want of prosecution, 174. for complainant's failure to appear or furnish papers, 174, for defect of form in pleadings, 109, 174. dismissal should be without "prejudice, 174. otherwise it may be pleaded in bar of new suit, 174. other cases of dismissal without prejudice, 174. without prejudice, when cannot be, 174. effect of, 109, 174. » upon a contingent event, 175. with leave to bring suit at law, 175. leave to sue again in equity, when granted, 104. bill to perpetuate testimony, 399. on failure to redeem, 478, 479. for neglect to deliver copy of bill, 55. for neglect to give bond securing costs, 56. Dissolution, voluntary, -of corporations, 319. no appeal lies from proceedings for, 646. of injunctions, 312. &« Injunctions. Divorce, 572. See Bill for Divorce. Documents, what ones referred to in Ch. Rule 56, 27. production of, 104. See Production of Papers. production before commissioner, 132. 902 INDEX. Documents — Continued. when may be read at the hearing, 133, 134. omission to set out in records or proofs, 250. Dower, decree in, held final, 211. as an incident in partition, 488. proportion of proceeds of partition sale, how determined, 504. inchoate right of, to be ascertained on partition sale, 505 . in divorce cases, 595. in real estate of infants, when value of to be ascertained by master, 626. how satisfied, 629. Drunkenness, as ground for divorce, 582. E. Ejectment, not compelled, when title is decreed in equity, 161. when not to be maintained by mortgagee, 422. when not precluded by decree in partition, 495. proper remedy for holder of legal title against person in possession, 523. Election, putting complainant to, 110. when motion to be made, 110. order, 110. in what cases compelled, 110. effect of electing to proceed in equity, 110. effect of electing to proceed at law, 110. not compelled, bill for discovery only. 111. defendant must first answer completely, 111. special application and notice necessary, 111., foundation of the application. 111. of remedy in foreclosure, 420. to foreclose for whole amount due, notice of, 436. Endorser, liability for deficiency on foreclosure sal?, 422. of notes secured by subsequent installments, 'release, 422. Endorsing, bill, 30. answer, 83. INDEX. 903 Endorsing — Continued. commissioner's refusal to grant order or injunction, 125. endorsement of allowance of appeal bond, 220. Engrossing, neglect to xe-engross foreclosure bill after amending, 160. Enrollment, of decree, 198. See Decree. for purposes of sale, 149. Entitling Papers, complainant's name appears first, 30. affidavits, 280. orders and papers on supplemental bill, 368. orders, 270. petition, 265. Equitable Jurisdiction. See Jurisdiction. on appeal, 243. See Appeal. Equity of Redemption, nature of, 418, 464. is inseparable from the mortgage, 464. may be sold on execution, 464. but not to satisfy the mortgage debt, 425. vendee of, stands in mortgagor's place, 468. , estoppel against vendee, 447. Estates of Decedents, jurisdiction of equity, 20. Estoppel, against vendee of equity of redemption, 447. in quieting title, 529, note. to vacate divorce decree on ground of collusion, 594. Evidence. See Affidavit, Deposition, Testimony, Witness. who may be witnesses, 115j See Witness. statutory exceptions, 116. See Witness. examination of witnesses, 117. &^ Witness. examination de bene esse, 117. See; Witness. proof of exhibits, viva voce, at the hearing, 117. order nunc pro tunc cannot give validity to proofs taken under chamber order, 123. general order to take proofs, 127. taking testimony before notary or justice, by stipulation, 124, 128. 904 iNt)EX. Evidence — Continued, taken before circuit coiirt commissioner upon reference, 123. See Wit- ness. production of documents upon reference, 132. examination of books upon a reference, 133. what documents cannot be read on the hearing unless made exhibits be- fore commissioner, 133. commissioners cannot control order of taking proofs, 134. order to close proofs, 135. return of depositions and exhibits by commissioner, 135. commissioner's fees for taking down cross-examination, 135. taken by commissioners under commission, 117, 142. See WITNESS. setting out deeds and documents, 27. omission to set out, 250. effect of answer in chancery as, 83. infants, how far bound by admissions, 623. copy of deed attached to answer, is not, 85. production of papers, 55, 104, 132. of allegations in answer, when necessary, 170. what may be read on the hearing of a cause, 171. of decrees, 183. reading record as, 186. upon re-hearing, 196. bill taken pro confesso, 201. on hearing upon further directions, 255. in suits against infants, 86, 624. upon supplemental bill, 367. upon a bill of interpleader, 384. upon a cross bill, 395. upon a reference in foreclosure, 440. of adultery, in divorce suits, 579. in divorce suits, 593, 596. perpetuation of, 396, 400. upon appeal. See Appeal. Examination of Parties, who are competent, 115. upon a reference to take accounts, 145. by court, 175, 594. of defendant in a creditor's suit, 414. of complainant, on a reference in foreclosure, 440. when accused of contempt, 541. INDEX. 905 Examination of Witnesses, de bene esse, 117, 402. See Witness by circuit court commissioner, upon reference, 133. See Witness. by commissioners, upon a commission, 142. See Witness. Exceptions, for scandal or impertinence in bill, 55. to original answer before further answer can be obtained, 78. to unsworn answer, for scandal or impertinence, 82. to answer, will not prevent the dissolution of an injunction, or the discharge of a ne exeat, 94. to answer, for insufficiency, 94. to answer, for scandal or impertinence, 95. waiver of, by amending bill, 102. to proceedings in commissioner's office, 137. to affidavit, for scandal or impertinence, 283. to answer to bill of revivor, for scandal or impertinence, 348. to report, 139. See Report of Commissioner. Execution, to enforce a money decree, 204. courts of equity may issue, 204. decree must be enrolled, 205. who can demand, 205. for payment of permanent alimony, 205, 608. order for, before enrollment of decree, 206. stay of proceedings, by commissioner, ] 26. return of, for purpose of creditor's bill, 406. purchaser's rights not prejudiced by voluntary partition among heirs, 483. does not lie to enforce temporary alimony, 604. bill in aid of, 403. See Bill in Aid of Execution. for deficiency, 425, 462. authority of the court, 462. against other persons than the mortgagor, 462. nature of the proceedings, 462. when and how awarded, 463. practice upon, 463. Executors, discontinuance by, withoul costs, 103. > when suits by, or against, do not abate on the death of one of them, 333. revivor of suit by personal representatives, 336, 342, 344. against, 335, 338, 341, 343, 345. allegation of interest, in partition, 488. 114 906 INDEX, Executors — Continued. when allowed costs out of the fund, 558. lands held by, in trust for infants, sale on petition, 631. Exhibits, proof mva voce, at the hearing, 117. what documents must be made exhibits, 133. when to be returned and filed by commissioner, 135. Extreme Cruelty, as a ground of divorce, 584. a cause for a limited divorce, 599. allegation of cruel treatment, 599. Father, liability for support of children, after divorce, 598. Fees, of officer taking testimony by stipulation, 129. of commissioner, on cross examination, 135. on notice of sale, 135. of register, on appeal, 220. of counsel in supreme court, 238. of clerk of supreme court, 238. to be added as costs, 238. See Costs ; Costs in Supreme Court. Feigned Issues. See Issues at Law. nature of, 176. old practice is now abolished, 176. drawing up and settling, 178. , depositions de bene esse, when not to be read on, 119. may be ordered in partition, 491. in suits to annul marriage, 593. Feme Covert. See Married Women. Final Decrees and Orders. what are final orders, 207. what are not final orders, 211. decisions in U. S. supreme court as to what orders are final or not, 215, note. a final decree adjudicating nothing on the general merits, and reserving no equities, cannot be sustained, 647. INDEX, 907 Final Process, when to be made returnable, 214. issue of, from supreme court, 240. Fixtures, question in foreclosure, 455, 456. Folios, numbering and marking, 29. Foreclosure. See Bill for Foreclosure of Mortgage. parties to; 426, ' See Parties. only legal holder of mortgage can foreclose at law, 420. who is the legal holder, 420. compelling election of remedy, 420. what orders are final, 209, 210. what orders are not final, 211, 212. sales under, 148. See Sales under Decrees. redemption from, 466. See Bill to Redeem, Foreign Corporations, service of process on, 35, 36. Foreigner, answer of, how taken, 87. Foreign Insurance Companies, s.rvice on agents, 35, note, 22. Foreign Wills, probate of, 530. commission'to take testimony, 20, 531. Former Suit Pending, plea of, 69. Fraud, precision in charging, 16. concurrent jurisdiction of equity, 19. principle that equity always has jurisdiction, how limited, 19. averments as to fraudulent intent, 21 . defense of, to be taken advantage of, by answer, 65. burden of proof when denied by answer, 85. denial of, by defendant, when not conclusive, 85. to set aside sale under decree, 160. impeaching decree for, 185. in decree by consent, relief, 203. allegations of, in bill to quiet title, 529. 908 - INBEX. Fraud — Continued. what frauds will invalidate marriage, 595. right of action for is not assignable, 648. Fraudulent Conveyances. See Bill in Aid of EXECUTION, how must be reached, 412. allegations of creditor's bill, 412. , extent of relief in case of, 411, note. Further Directions, how reserved, 254. only in decreei and decretal orders, 254, when cause may be heard upon, 254. only upon a commissioner's general report made under a decree or decre- tal order, 255. when necessary to set down cause for hearing for, 255. after reservation of, court generally refuses to interfere in a summary way, 255. hearing upon, 255. what may be ordered, upon, 256. G. Garnishment, receivers or registers not subject to, 321, 323. Gratis Appearance, 41. Growing Crops, purchaser on foreclosure entitled to, 159. may be levied on, 425. when judgment creditor entitled to, 408. Guarantor, of collection, not a party to foreclosure, 433. of collection of mortgage debt, liability, 459. Guardian, for the sale of the real estate of an infant, 626. who may be, 626. security to be given by, 627. order appointing him, 627. his report of sale, 628. his final report, 630. INDEX. 909 Guardian, (General) appointment, in Michigan is vested in probate courts, 630- except where father appoints a testamentary guardian, 630. can redeem his ward's land from foreclosure saJe, 469, 624. does not represent infant ward in foreclosure proceedings, 624. charged personally with costs if he files unjustifiable bill, 558. must represent minor wards in part tion proceedings, 630, 500. required to give bond, 630, 486. new security from, before receiving proceeds of sale of infant's real estate, 620. or money belonging to infant litigant, 620. cannot represent infant defendants where guardian ad Ktem is appointed, 620. money belongmg to infant litigants in foreclosure cannot be ordered paid to solicitors of general guardian, 624. is the proper person to be appointed guardian for sale of infant's real estate, 626. Guardian Ad Litem, , how appointed, 42, 622. See Appearance. in sales of infant's land, 43, note, 625. in sales of lands of incompetents, 44, note. must put in answer for infant, 86. mode of putting in answer for infant, 86. - of infant defendant, should not join in answer with other defendants, 86. so in answer to foreclosure bill, 451, 624, for infant or lunatic absentee, 51, 52. on revivor against infant representative of deceased defendant, 336. how appointed in partition, 490. when allowed costs out of the fund, and to what extent, 560. security to infant for money or property received, 620. in what way can bind infant defendants, 620. rights of, in fund, to be secured, 620. cannot accept a deed' in lieu of money ordered paid, 620. infant's co-defendant not to be appointed as, 621. circuit court may appoint a new one on probate appeal from administra- tion account, 621. not liable for costs unless specially charged, 622. must swear to plea, 623. how far infant bound by admissions, 623. 910 INDEX. H. Habeas Corpus, circuit judge at chambers cannotr adjudicate upon as to qustbdy of child- ren, 123. to bring up party accused of a contempt, 542. Habitual Drunkenness, as a ground of divorce, 582. divorce for, wife entitled to dower, 595. Hearing, ^ preliminary proceedings, 164. notice of, 164. either party may notice, 164. order to set cause down, not necessary, 164. service of notice, 164. noticed for what day, 165. whe^e bill is taken as confessed, 165. note of issue, 165. case and abbreviation of pleadings, 165. method of making up the calendar, 165. papers necessary to be furnished. 166. by whom papers to be furnished, 167. points, each party to furnish, 167. draft of minutes of decree, 167. default at the hearing, 167, 174. decree on default at, 167, 174. notice of motion to suppress depositions, 168. manner of submitting causes, 168. taking testimony in open court, 168, notice of, 168- objections to, by petition and notice, 168. circuit judge at chambers cannot order proofs to be taken before com. missioner, when, 169. right of, 169. discretion to order cause to be heard before commissioner, 169. notice of hearing, 169. all testimony offered must be admitted, 169. hearing upon pleadings and proofs, 170. course of proceedings upon the argument, 170. what allegations in answer to be proved, 170. right to open and close, 170. " two defendants setting up adverse claims, 170, INDEX. 911 Hearing — Contimied. on plea or demurrer, 170. on exceptions to commissioner's report, 170, where both parties except, 170. what evidence may be read, 171. replication filed nunc pro tunc, 171. answer when taken as true, 171. opinion of counsel as to theory of bill for relief, 171. objections to decree which relate to details of practice, 171. decree should follow what, 171. private hearing, 171. v hearing cause out of its order, 172. original and cross bill, 172. hearing two causes together, 172, objecting to jurisdiction, 172. objection for want of parties, 173. ordering cause to stand over to add parties, 173. ordering cause to stand over "for proofs, 174. default at the hearing, 174. dismissing bill at, 174. See DiSMissiNG Bill. retaining bill with leave to sue at law, 175. examination of parties by court, 175. objection at, for non-joinder or mis joinder, 24. proving documents at, 27. objection at, for multifariousness, 27. use of verdict of jury, 114. proof of exhibits viva voce, 117. of appeal, 224. See Appeal. of appeal, notice of, 226. See Appeal. effect of want of notice of in court below, 227, 228. of motions, 228. See Motions. upon further directions, 255. of bill of revivor, 349. of bill of revivor and supplement, 358. case not brought to, on bill of discovery, 379. of bill of interpleader, 385. of cross bill, 494. of foreclosure bi Is, 441. of mechanics' lien suits, 518. in divorce suits, 59-. Heir, cannot be substituted for administrator, by amendment, 97. reviving suit by, 336, 342, 912 i:^pEx;. H exr — Continued. of mortgagor, party to foreclosure, 431. his right to redeem from a mortgage, 4S6. voluntary partition cannot prejudice rights of execution purchaser, 483. partition "between heirs, 487. when not precluded from bringing ejectment, 'by partition decree, 495. Highways, encroachment, suits in corporate name, 24. Homestead, enjoining sale, ptoies, 23. wife may file bill to protect from invalid foreclosure, 432. bill to protect, what must show, 436. invalid mortgage on, subsequent mortgagee may take advantage of, 479. interest of, how considered in specific performance, 645. Husband, cannot sue wife to enforce purely executory contract, 24. when bound to enter a joint appearance for himself and his wife, 42. right to appear for wife sued as executrix, 42. as guardian ad litem for infant wife, 43. guardian for infant wife, in partition, 501. when must answer jointly with wife, 87. his competency as a witness for or against wife, 116. revivor jointly with wife, 343. enjoined from imposing restraint on wife's personal liberty pending divorce suit, 590. payment of alimony bars liability for necessaries, 609. '&^Alimony, ETC. ; Bill FOR Divorce ; Marriage; Married Women. Idiots, Insane Persons, Lunatics, Etc., usually sue by committee, 8. in Michigan they sue by guardian, 8. bill may be filed against, 8. subpoena against lunatic must be served personally, 34. appearance by, 44. guardian generally appointed guardian ad litem, 44. proper course where they have no guardian, 44. or where guardian refuses to appear, 44. who may make application for the appointment of a guardian, 44. notice of the application, 44. INDEX. 913 Idiots, Insane Persons, Lunatics, Etc. — Continued. taking bill as confessed against lunatic absentee, 52. answer of, how compelled, 45. answer of, is similar to infant's answer, 87. answer should be sworn to by guardian, 87. appointment of guardian, for answer, 87. partition proceeding, 501. proceedings for sale of real estate of incompetents, 625. Illiterate Persons, answer of, jurat, 88. Impertinence, definition of, 27, 95. expunging with costs, 27. excepting to bill for, 55. exceptions for, will lie to unsworn answer, 82. exceptions to answer for, 95. in proceedings before commissioner, exceptions for, 137. in affidavit, 283. in answer to bill of revivor, 348. Impotency, suit to annul marriage on account of, 580. Imprisonment, for 'non-payment of interlocutory costs, 537, party entiiled to'jail liberties, 537. for a fine, must be in prison, 537. for failure to pay temporary alimony, 605. conditions precedent to imprisonment, 605. See Contempt. Inadequacy of Price, sale not disturbed for, when, 158. as an objection to specific performance, 636. Indictment, in addition to proceedings for contempt, 551. Indorser. See Endorser. Infants, chancery has supervisory power over, 86, 624. suits on their behalf, 617. their right to bring suits, 617, 618. when suit cannot be maintained, 617. must sue by next friend, 618. 115 914 INDEX. Infants-^ Continued. although not sole complainants, 618, who m^y be next friend, 618. liability of next friend, 618. next friend, how appointed, 619. petition, 619. security to infant by, 619. order for appointment to be filed, 620. removal of, 618. new security from general guardian before receiving proceeds of sale . or money belonging to infant litigant, 620. suing in forma pauperis, 621. infant complainant is bound by decree, 621. in general bound by conduct of their solicitors, 621. next friend's right to costs, 621. his liability for costs, 618, 621. costs, when not awarded against them, 621. suits against them, 622. subpoena, how served on, 34. appearance by, 42. See Appearance. guardian ad litem, how appointed, 42, 620. for absent or concealed infant defendant, 51. not liable for costs unless specially charged, 622. defense without guardian is irregular, 623. answer of infant, 86. by whom and how put in, 86, 623. a general answer usually filed, 86. but whenever a special answer necessary, it must be put in, 86. must not prejudice infant's rights, 86. oath when necessary must be guardian's, 86. considered a pleading merely, 86. should not be joined with other defendants, 86. how compelled, 45. replication to, 624. plea must be sworn to by guardian ad litem, 623. when not necessary defendants in foreclosure. 433. practice in regard to, in foreclosure, 458, 459, 624. how far bound by acts of solicitors, etc., 623. order based on admission of, reversed, 273. how far bound by admissions, 623. evidence against, 624. decree against, case must be proved, 47, 184- INDEX. 915 Infints — Continued. how far bound by decree, 625. consent decree, 202. reveisalof decree for errors affecting; 248. practice as to, in partition, 490, 500, 501. when costs not imposed on, 554, 621. cannot sue or be sued for specific performance, 641, proceedings for the sale of their real estate, 625. when a sale will be authorized, 625, when sale forbidden, 626. property held in common with adults, 626. nature of the power to sell, 626. application for order to sell, 626. who may apply, 626. how application made, 626. who may be appointed guardian, 626. security to be given by guardian, 627. reference to a master, 627. comnlissioner's report, and order thereon, 628. guardian's report of sale and order of confirmation, 628. effect of sale, 628. proceeds of sale, 628. rights of infants in proceeds, 628. claim of dower, how satisfied, 629. purchase and discharge of incumbrance, 629. final report, 630. appointment of general guardians, 630. partition of property of, 630. bill to annul marriage on ground that party was under age of legal consent, 630. lands held in trust, conveyance or assurance of, 630. sale of lands held in trust by executors, 631. Information, office of, 7. « definition of, 7. pleading filed as, not sustained as a bill, 7., practice on, 8. relator cannot be brought forward as an orator, 8. relator liable for costs, 8. may be filed in circuit court for county of Ingham, 9. Information and Belief, method of answemng as to, 78. 916 INDEX, Ingham County, jurisdiction of circuit court for, in equity, 9. Injunction Bill, sufficient statement of ownership, 21, note. against enforcement of paving assessriient, parties, 23, against sale.of homestead, parties, 23. when neei not be sworn to, 29. amendment of, must be on special order and notice, 97, amendment so as to waive answer under oath, 97. amendment, when not allowed, 98. is one asking no other relief, 295. bill praying other relief, injunction falls with it, 295. dismissed, appeal from decree does not revive the injunction, 250. Injunction Master, in what cases can allow injunctions, 299, Injunctions, nature and uses of, 289. definition of, 289. allowance is discretionary, 289. objects of, 289, 290. the remedial writ, 290. the judicial writ, 290. different kinds of, 290. provisional, 290. preliminary^ 290. should be prayed for, 290. in what cases granted, 290. injury should be pressing and delay dangerous, 290. not granted to disturb possession of real estate of defendant, 291, 296. or to divest him of a legal right, 291, 295. confined to what cases, 291. security before allowing, 291. bill for, dismissed, an appeal does not revive the injunction, 295. temporary, 291. " when granted, 291. mandatory, 292. what are, 292. when granted, 292. there should be no delay in the application for, 292. may be had upon interlocutory application, 293. (ontinuing provisional injunction, 293. INDEX. 917 Injunctions — Continue^. in what cases continued until the hearing, 293. on motion to dissolve, 293. general injunction, 293. how long it continues in force, 293. at what time it may be granted, 293. notice of application for, when necessary, 293. perpetual injunction, 293. forms part of the decree made at the hearing, 293. in what cases granted, 294. continuing at the hearing, 294. only granted at the hearing, 294. in what cases and against whom injunctions granted, 294, 295. to stay or prevent waste, 294. to protect a fund, or personal property, 294. not, complaint not that a new grievance is created, but that an old one is not discontinued, 294. ^to restrain commission of a threatened injury, when, 295. injunction bill is one that asks no other relief, 295, 298. injunction falls with other relief asked by bill, 295, 298. gainst enforcement of a legal right, 296. possession of lands, 296. See Receivers. against public officers, 296. state courts cannot restrain proceedings of federal officers, 297. __^when not granted, 297, note. on motion for, statements in bill must be taken as true, 297, 30 1. and relief sought must be consistent with the bill, 297. for stay of proceedings, 300. second application, 300. ex parte applications, 301. application for, how made, 301 order to show cause, 301. issuing writ, 301. certificate of allowance, 301. order of court must be entered by register, 302. to stay proceedings at law, 302, how effected, 302. who has power, 302. bond upon, 302. after verdict, 303. bond or deposit, 303. after judgment, 303. ' 91^ INDEX. Injunctions — Continued. deposit or bond, 303. after verdict in ejectment, 304. damages on dissolution of, 304. dispensing with deposit, 304. because of fraud, 304. t dispensing with deposit or bond, 305. sufficiency of sureties, 305. bill to be first filed, 297. subpoena must precede, 33, 297. bill need not necessarily be against the party who is to be restrained, 2 97 must be prayed for, 297. how prayed for, 14, 297. prayer for general relief not sufficient, 297. when oath to bill necessary, 297. when affidavit should be attached to bill, 31, 298. oath to creditor's bill, 298. when lies to sustain trespasses, 298. as to nuisances 298, note, as to streets, 298, note. as to banks, 298, note. as to water powers, mill owners, etc., 298, note, how obtained and issued^ 299. what officers may grant, 299. power of injunction masters or circuit court commissioner, 121, 299, 300 when commissioner to give notice of, 121. filing of bond, 305. / delivery for prosecution, 305. court cannot dispense with filing, 305, note. extent of bond, 305, note. decree conclusive as to damages, 305. bond is of joint contract, 306. I supports a claim against surety's estate after his death, 306. to stay proceedings by creditors against corporations, 306. enjoining payment of taxes, 306. commissioner's authority to allow injunction to stay proceedings at law after judgment, 306. when judge or other officer sick, 307. not sustained to restrain suit in court of sister state, or in the federal court^ 307. from federal court to restrain trial in state court, 307. restraining nuisances, 307, 308. INDEX. 919 Injunctions — Continued, a second injunction, when refused, 308. to restrain proceedings under decree in former suit, 308. against what persons granted, 308. in general, not against persons not parties, 308. exceptions to this rule, 308. form of, 309. how prepared and signed, 309. must be signed and sealed by the register, 309. should be clear and explicit on its face, 309. service of, 309. upon whom and how, to be served, 309. when dispensed with, 309. should not be made without serving subpoena, 310. this irregularity, how waived, 310. failure to serve on some defendants, 310. effect of, 310. must be obeyed though improperly issued, 310. operate frdm the time order is made, 310. breach of, 310. when party guilty of, before service, 310. who may commit a breach, 311. what acts will constitute, 311. punishment for, 311. See CONTEMPT. dissolution of, 312. affidavit to prevent, 31. when may be on motion, without answer, 312. motion must, in general, be founded on answer to the bill, 312 affidavits cannot be substituted therefor, 312. exceptions to this rule, 312. hearing of motion, allegation of bill presumed to be true, 312. sworn answer, if responsive, taken as true, 313. putting in sworn answer when oath is waived, 83. requirements of the answer, 313. application, when refused, 313. affidavits in support of answer, 313. answer setting up entirely new matter, 313. complainant's neglect to appear and oppose nlotlon to dissolve, 313. delay in moving to dissolve, 314. ' order setting aside temporary injunction is not appealable, 314. not on ground that injunction was not prayed for in prayer for pro cess, 314. &20 INDEX. Injunctions — Continued. injunction granted upon interlocutory application is superseded by the decree at the hearing, 314. decree for damages, conclusive in action on bond, 186. on bill of interpleader, 384. on creditor's bill, effect of, 417. , deposit before, restraining collection of taxes, 529. when mandamus lies to vacate, 547- on bill for divorce, 590. order enjoining replevin, held final, 211. order dissolving a temporary injunction is not final, 212. order denying motion to dissolve a preliminary injunction is not final, 212, order refusing an injunction in a replevin suit is not final, 212. Insane Persons. See Idiots, Etc. Insolvency, dissolution of corporation for, 320. ground for removal of receiver or Irustee, 321. excusing non-joinder of defendant in creditor's bill, 409. Installments, decree for payment of, 185. revivor, mortgagor's death after payment of first decree, 338. opportunity must be afforded to contest each default, 339. proceedings for further decree, 339. on mortgage, practice in foreclosure, 443, 444. InstTumetits in Writing. See Deed. how set out in bill, 1 6. demurrer does not admit construction as to the legal effect of, 60. what ones may be read at the hearing, 171. Insufficiency, exceptions to answer for, 94, 95. Insurance, allowance for premiums paid in foreclosure, 440. foreclosure not to be repeated for, 648. Insurance Companies, receivers for, when appointed, 322. Interest, how computed, under decree, 147. rnte of, in Michigan, 147. upon judgments and decrees, 147, 148, 187, 450. INDeS. 621 interest — Continued. upon installments of interest, 148. general rule of computing, 148 not stopped by improperly filed bill of interpleader, 386. foreclosure bill for arrears of, 422. clause in mortgage, notice of election that j rincipal shall become due, 436. allowed upon past due installments of interest, 450. foreclosure for small sum of, held oppressive, 450. stopped by tender, 451. when stopped by deposit for redemption, 478. compound, may be required in specific performance, 644. Interlocutory Applications, 257. Interpleader, See Bill of Interpleader. Interpreter. for foreign defendant, answer, 87. on examination of witnesses before commissioner, 134. order for, 134. oath of, 134. interested person as, 134. Interrogatories, in bill, 13. See Bill. for examining witnesses before circuit court commissioner, 133. for examining witnesses upon a commission, 144. in proceeding by attachment for contempt, 540, 541. Inverse Order of Alienation, sale by, 153. . Irregularity, in taking an appeal, how waived, 223. in proceedings below, proper course for aggrieved party, 246. in entering orders, effect of, 272. how waived, 272. in issuing an injunction, 311. will not justify a party in disregarding it, 311. in service of injunction, 310. when to be objected to, 310. - how waived, 310. in process, how waived, 550. Issues at Law, ordered in what cases, 176. how made, 177. 116 922 INDEX. Issues at Law — Continued. must be framed by whom, 177. must be approved by circuit judge, 177. as a general rule, only granted at the hearing, 177. confined to what facts, 177. court may disregard the verdict, 177. new trial, when awarded, 177. reading depositions on trial of, 177. several to be tried, each must be passed on separately, 177. jury for trial of, 114, trial of, how confined in divorce suit, 591. issue upon legality of marriage, to be tried by jury, 593. J. Joinder of Defenses, in what cases allowed, 92, 93, method of joining defenses, 93. Joint Tenants, suits by or against need not be revived on death of one of them, 333. partition between, how effected, 491. ' Judge, power at chambers, 121, 122, 123. Judgment, at law, seldom disturbed in equity, 19. interest on 147. staying proceedings after, 303. Judgment Creditor's Bill, when creditor's bill may be filed, 403. in aid of execution at law, 403. to reach equitable assets, 403. in. aid of execution at law, execution must first have been issued, 403. but need not have been returned, 404, 413. cannot be drawn to reach non-leviable property, 404. right is complete when execution is issued, 404. must be filed after levy and before sale, 404. not unusual to include both classes of relief, 404, 413. to reach property not liable to execution, 404. when may be filed, under the statute, 404. ppwer to compel discovery, 405. INDEX. 923 judgment Creditor's Bill — Continued, statute does not apply to exempt property, 405. judgment creditor can only inquire into transmutation of debtor's assets, 405. he can only reach those equitably belonging to his debtor, 405. reasonable provision for wife, when not set aside, 405. inadequacy of the substituted proceeding at law, 405, note. jurisdiction, bill to reach property not liable to execution, 406. requisites to, 406. execution must have been issued and returned unsatisfied in whole or in part, 406. remedy at law must have been exhausted in good faith, 406. return of execution, 406, 407. bill should show defendant's county, 407. ' execution should be issued to county where debtor resides, 407. but where debtor has property in another county, 407. when sustained to set aside conveyances as fraudulent, 407. when bill must be filed, 407. a harsh remedy, strict compliance with forms of law required, 407. amount necessary to give jurisdiction, 407. necessary to reach trust in favor of creditors, 408. what may be reached by, 408. creditor entitled to crops, 408. supplemental bill necessary to reach after acquired property, 409. parties, 409, complainants, 409, 410. defendants, 409, 410. publication of order to exhibit demands, 410. fraudulent grantees joined with grantor, 41 0. • assignor of judgment not a necessary party, 410. when to be filed by judgment creditor's assignee, 410. ' allegations required by Chancery Rule 102, 410. , oath to, 411. _ amendments, how made, must be verified, 411. regularity of the judgment and execution not inquired into, 411. return of execution unsatisfied, when concludes parties, 411. creditors only can take advantage of fraudulent assignment of debt, 411. effect of death of a defendant, 345, 412. priority of lien upder, 412. to reach fraudulent conveyances, 412. form of, 413, 414, note. what should state, 413, 414. 924 INDEX. Judgment Creditor's Bill — Continued. ' appointment of receiver, 414. saving expense of putting in answer, 414. taking as confessed, 414. examination by commissioner, 415. expense of examination, who pays, 415. service of copy of Rule, 105, 415. examination under the rule, to what extends, 415. powers of receiver, 415. du'y of receiver, 416. not to sell real estate without special order, 416. when receiver not allowed costs, 416. sale of doubtful claims, 416. no more than one receiver appointed, 416. security from receiver, 416. receiver holds for whom, 416. payment over of funds by receiver, 416. how receiver discharged, 416. receiver appointed in subsequent suit, 417. effect of injunction, 417. Judicial Sales. See Sales under Decrees. Jurat, to bill, form of, description of agent, 29. to answer, 83, must state substance of oath, 83. in case of foreigner's answer, 87. to answer of an illiterate person, 88. - to petition, 264. to affidavits, 286. form of, 286. omission of words "before me," 281. where deponent is blind, or cannot write, 286. deposition does not need a separate one, 286. Jurisdiction, of circuit courts and circuit judges in chancery, 5, 9. of circuit court for county of Ingham, 9. where suits should be commenced, 9. clause of, in bill, unnecessary, 13. must appear from bill, 13, 16. consent cannot confer, 16. defendants out of, prayer of process, 15. INDEX. 925 Jurisdiction — Continued. as depending on amount in controveisy, 16. suits between co-partners, 16. suits to enforce mechanic's liens, 16, 517. suits to foreclose mortgages, 16, 453. bill for discharge of mortgs^e, 17. in judgment creditor's suit, 407. in specific performance, 644. when depends on value of real estate, 17. remedy at law, when excludes, 17. existence of a remedy at law, 18. once obtained, bill retained for full relief, 19. subject must be of equitable cognizance, 19. concurrent, in cases of fraud, 19. doctrine of, in cases of fraud, 19. to disturb judgments at law, 19. to set aside conveyances by bankrupt, 19. restraining sale of personalty for tax, 19. of equity in probate cases, 20. to regulate or wind up affairs of corporations, 35. over non-residents and absentees, nature of, 51. retained in cases of fraud and trusts, 59. demurrer for want of in l)ill, 59. pleas to, 66. objection that there is a remedy at law, how to be raised, 79. entertained when subject of the suit is embraced under any of the appro- priate heads of equity jurisdiction, 79. objecting to, at the hearing, 172. in cases of waste, 294. of supreme court on appeal, 243. See Appeal. upon creditor's bill to reach equitable interests, 406, 407. ' in partition, over non-residents, 482. to quiet title, 524. of bills for divorce, 576. U. S. courts have none, 649. in specific performance, 633, 644. of U. S. courts in equity, 645, 649. Jury, See Feigned Issues ; Issues at Law. impaneled for trial of issue of fact, 114. 926 INDEX. K. Knowledge, method of answc ring as ^to, 78. L. Laches, in procuring return on appeal, 222. in seeking to quiet title, 529, note. as an objection to specific performance, 635, 636, note. Land Contract, See Bill for Specific Performance. specific performance refused for v/ant of mutuality, 635. Lease, expired, specific performance of, 637. Legatee, may foreclose a mortgage specifically bequeathed, 427. revivor against must be by bill, 334. , Lien, See Mechanics' Liens. order of enforcement, 154. of creditors, how treated in partition, 484, 485. none created by death of defendant in creditor's bill before answer or appointment of receivers, 412. priority of, under creditor's bill, 412. transfer of, on voluntary partition, 496. tax liens, when cloud title, 527. Limitations, See Statute of Limitations. Lis Pendens, when and where to be filed, contents, 36. filing notice of, 438. filing unnecessary to bind one who has actual notice, 438. notice in partition, 489. notice of suit on mechanics' lien, 517. Lunatics, See Idiots, Insane Persons, Exa M. Mandamus, does not lie to set aside plea as irregular, 69, INDEX. 927 Mandamus — Continued. to compel commissioner to proceed on order of reference in foreclosure, 440. when lies to vacate illegal injunction, 547. Manufacturing Companies, service upon, 35, note. Marking Papers, submitted for decision, 168. Marriage, is a civil contract in Michigan, 573. consent of parties necessary, 573. age of consent, 573. when void without decree, 573. when decree to annul, 574. suit to afSrm, when necessary, 575. when an abatement of suit, 331. ' by a female complainant, 331. by a female defendant, 332. suit abated by, cannot be revived by petition, 340. revivor by husband and wife jointly, 343. suits to annul or affirm, how conducted, 592. annulling of, for fraud, 595. issues upon legality of, jury tries, 593. proof of, in divorce suits, 593. power of Congress to legislate on, 650. ' how dissolved. See Bill for Divorce. Married Women, sue by next friend in action against husband, 8.' sue us feme sole, in actions respecting their own property, 8, 23. and in divorce suits, 8. may sue husband in equity in respect to their separate property, 23. when may join with husband in bill, 23. cannot be sued by husband to enforce purely executory contract, 24. ' power to contract, 24, note. process is served on them personally, 33. appearance by, 42. answer of, how compelled, 45. when cannot demur separately from husband, 61, answer of, how put in, 87. wheti incompetent to testify, 116. as parties to foreclosure bills, 432, 928 INDEX. Married Women — Continued. not personally liable on joint mortgage with husband, 458. inis.n\.feme covert, husband as guardian, in partition, 501. inchoate right of dower, proceedings on partition sale, 505. mechanics' lien on property of, 511. See Bill for Divorce ; Dower ; Husband. Marshaling of Securities, in foreclosure cases, 153, 154. on redemption, 469. Master in Chancery. See Circuit Court Commissioners. office abolished in Michigan, 10. practice on proceedings before in U. S. courts, 121, note. former powers of, 123. circuit court commissioner perform duties of, 124. reference to. See Reference. report of. See Report of Commissioner. sales by, 148. See Sales under Decrees. Mechanics' Liens, proceedings to enforce, strictly construed, 508. nature of the lien, 508, 509. pleadings and practice in regard to, 508. requisites to title Under, 509. when can arise, 509. attach to what interest, 509. terminable on redemption, 509. •effect of, 509, 510. in what cases given, 510. aggregate of, not to exceed what amount, 511. on property of married women, 511. in favor of sub-contractors, etc., 511. infant not bound by contract seeking to create, 511. not destroyed by destruction of the erections, 511. public buildings are exempt, 511. when to attach, 512. notice of, filing, indexing and service, 512. land must be identified by writing in the agreement, 512. when lien commences, 513. statement of amount of work and materials, 513. affidavit of amount due, 513. proof of s rvice of notice of claim, 513, subject to prior mortgages, 513. INDEX. 929 Mechanics' Liens — Continued. priority of lien on improvements, 514. discharged by waiver or tender, 514. personal action lies for, 514. limitation of, 515. parties, 515, 516. proceedings may be by bill or petition on oath, 516. what bill or petition should state, 516, averments and proof, 517. allegations as to the title to the lands, 517. sworn bills how far evidence, 517. lis pendens, 517. jurisdiction, matters may be below JSIOO, 517. security for costs, non-residents, 517. intervening or cross-bills must be under oath, 518. amendments to bill or cross bill, 518. hearing, 518. submission of questions of fact to jury, 518. controlling effect of verdict, 518. oral contract, evidence must be clear, 518. court to examine all claims, 519. complete performance prevented, adjustment of claim, 519. decree, 519. costs, 520. sales under decrees, 520. redemption, 520. distribution of proceeds, 521. when proceeds to be paid into .court, 521. siuplus, 521. attaching creditor's priority, 522. lien creditors when to share equally, 522. discharge, penalty for refusal, 522. appeal, 522. Merits, Affidavit of, to set aside default, 53. must state what the merits are, 286. in foreclosure, 441. Mining Companies, service upon, 35, note, 22. Minutes, papers to be entered in, at the hearing, 168. of stenographer, expense of copies, 239. 117 930, INDEX. Misrepresentation, to defeat specific performance, 635. Mortgage, See Bill for Foreclosure of Mortgage. nature of, in Michigan, 422. is a mere security for the debt, 424. is transferred by anything which transfers the debt, 424. assignment of rights under,, 424. bill to procure discharge, amount in controversy, 17. deed absolute, when treated as, 465. redemption from, 466. See Bill to Redeem. parties to foreclosure, 426. See Parties. foreclosure sale, 148. See Sales under Decree. Mortgagee, not to bring ejectment, 422, former right of possession after default, 423. quit claim deed by, how operates. 425. effect of second mortgagee's paying first mortgage, 427. necessary defendant in condemnation proceedings for railroad right of way, 433. Mortgagor, his right of possession, 423. Motions, nature and kinds of, 257, by whom may be made, 257. motions of course, 258. . special motions, 258. nature of, 258. ex parte applications, what may be effected by, 258. ex parte J how to be supported, 259. motions upon notice, 259. when notice necessary, 259. form of notice, 259. when to be made; 259. when they stand over, 259. must be made on day noticed for, 259. what motion should state, 260. costs for, should be asked by the notice of motion, 260. notice should be attached to the papers, 260. notice should specify pleadings or papers, 260. ex parte application for order to show cause, 260. time of notices, 260. INDEX. 931 Motions — Continued, papers in opposition should be filed, 261. affidavits and papers suppressed if irrelevant or scandalous, 261. once decided, not to be renewed, 261. costs of previous motion to be paid first, 261. to set aside for irregularity, when to be made, 261. costs of, 261. of opposing, 261. discretion of court, 261. what may be effected by motions, 262. relation back of delayed decision of, 271. for taking answer from file, form, 91. for payment into court, 106. See Payment of Money into Court. for production and inspection of papers, 55, 104. See Production oi' Papers. imupreme court, 228. clerk to keep special motion book, 228. in causes not on docket, must be noticed, 229. statements of, to be kept with clerk, 229. motion docket, 230. for continuance, 230. special motion days, 230. order of hearing, 230. noticed for day certain and not then called up, 231. special, must be noticed, 231. notice must be served on counsel, 231. special motion for leave to amend, 231. copies of affidavits served with notice of motion, 231. costs on, 234. costs against party declining to call up motion ht has noticed, 1 35. Multifariousness, definition, 26. how determined, 26. objection should be raised by demurrer, 26. objection at the hearing, 27. demurrer lies, 59. Multiplicity of Suits, discouraged by courts of equity, 25. Municipal Corporations, sue in corporate name for encroachment on highways,' 24, piay take what trusts, 646, 932 INDEX. Municipal Courts, decrees binding until reversed, 186. Mutual Credits, when allowed, 557. N. Names of Witnesses, to be furnished, on examination before commissioner, 127. Ne Exeats, their nature and uses, 324. how applied for and allowed, 325. must be applied for on bill filed, 325. when no new bill necessary, 325. may be applied for at any stage of the case, 325. by petition without prayer in bill, 325. against party avoiding final decree, 326. subpoena need not be served, but should issue fast, 326. may be granted in connection with injunction, 326. application may be by ex parte motion, 326. and before service of copy of bill, 326. ' by whom allowed, 326. may be applied for either upon an affidavit or petition, 326. affidavit, must be entitled 4n suit, 326. affidavit, what it must state, 326. when affidavit dispensed with, 327. what the demand must be, 327. petition, what should contain, 327. allowance, 327. certificate by a master, 327. order for, 327. endorsing writ, 327. service of writ, 328. bond by defendant, 328. discharging, 328. upon giving security, 328. motion may be made upon what, 328. reading affidavits, 329. not prevented by exceptions to answer, 330. whether can issue in Michigan, 329. in cases of alimony, under English practice, 329. INDEX. 933 Ne Exeats — Continued. no second application, 330. practice in U. S. courts, 330, note. putting in answer under oath, when oath is waived, 83. New Trial, on issue of fact, 177. Next Friend, 618. See Infants. may bring suit to annul marriage of infant because of non-age, 630. Nisi, orders, time of, 271, 275. how granted, 274. when to be served, 274, 275. in what cases granted, 274. how made absolute, 275. on filing commissioner's report, 275. Non-Residents. See Absent, etc.. Defendants, affidavit of non-residence, 285. security from, for costs, 16, note, 56. jurisdiction over, in partition, 482. when cannot file cross-bill in divorce, 592. Notary Public, 'may take testimony by stipulation, 128. • acting for commissioner, by stipulation, 125. Note of Issue, 165. See Hearing. Notice, of subsequent proceedings, defendant who has once appeared is entitled to, 39, 131, 201. of appearance, 40. of order to appear, publication, 50. of filing bond to secure costs, 56. of amendment of injunction bill. 97. of dismissing bill for want of prosecution, 109. ■ of examination de bene esse, 118, 119. of injunction granted by circuit court commissioner, 121. of order to take testimony, 127. for taking of testimony, 127. of names and residences of witnesses, 127. of place and time of examination, 128. of taking testimony by stipulation, 128. of motion to suppress depositions, 141. 934 INDEX. Notice — Continued. of hearing, 164. of hearing of testimony in open court, 169. of decree entered in vacation, 184. of appeal, 217. See Appeal. notices in supreme court must be written, 228, service of, 228, 229. of motions, 229, 230, 231, 259. of pleadings, computation of time, 232. computing time on, 233. of leave to file supplemental bill, 363. defective, effect of on right to redeem, 419, note. of election that principal shall become due for non-payment of interest, 436. of lis pendens, 438. to defendants in foreclosure, of object of suit, 438. of lis pendens in partition, 489. of application of surplus money after sale, 461. of application for execution for deficiency, 463. of partition sale, 499. pf mechanics' lien, 512. proof of service, claim of mechanics' lien, 513. of taxation of costs, 564. of hearing, 164. See HEARING. effect of want of, 227, 228. by appellee, waiver of irregularities in appeal, 223. of appeal, 226. 5'« Appeal. computation of time on, 233. of sale, 149. See Sales under Decrees. Nuisance, injunction to restrain, 298, 307, 308. Nunc Pro Tunc, filing replication, 114. clause in decree, 191. entry of decree, 184, 192, 193. enrollment of decree, 199. entering orders, 270. effect of order, 270. INDEX. 935 Oath, to answer, waiver of, 13. waiver will not dispense with signature, 81. in general required, 82. waiver^ of, effect of, 82. by filing replication, 82. to be distinctly stated in bill, 82. answer may be excepted to for scandal or impertinence, 82. but not for insufficiency, 82. answer will be sufficient to put matters of bill m issue, 82. if no replication is filed, facts set up in answer considered admit- ted, 82. answer sworn to notwithstanding waiver, effect, 82. when answer must be sworn to notwithstanding, 82. effeet as evidence when oath waived, 84. amendment for, of injunction bill, 97. form of oath, 83. jurat, 83. before whom may be taken, 83. to answer of infant, 86. to answer of a foreigner, 87. to answer of a Jew, 88. to answer of a blind person, 88. to answer of an illiterate person, 88. to answer of a corporation, 88. to hill, when necessary, 28. by whom to be made, 28. bill by corporation, 28. bill by an agent, 29. by an attorney, 29. form of, 29. jurat, 29. who may administer, 29, note. amendment to sworn bill must be verified by, 97. to state of facts, on reference, 132. of interpreter on examination of witnesses before commissioner, 134. to petition, 268. upon affidavit, 286. to plea, when required, 69, 70, 648. 936 KroEX. Oath — Continued. to injunction bill, 29'7, 298. necessary to stay of proceedings on cross bill, 394. to judgment creditor's bill, 411. of commissioners in partition, 493. Objections to Commissioner's Report. See Report of Commissioner. Office of Master. See Circuit Court Commissioners. abolished in Michigan, 10. Officers, of court, 10. authorized to administer oaths, 29, note. to allow injunctions, 299. to allow ne exeats, 326. of corporation, service upon, 34, 35. injunction against public officers, 296. Orders, kinds of, 267. common orders, 267. what are, 267, 268. are made without notice, 267. ' drawing, settling, and entering, 268. orders by consent, 269. drawing and entering, 268, 269. evidence to be in writing, 269. when to be filed, 269. not vacated unless fraud or misrepresentation appears, 269. special orders, 267. what are, 267, 268. how entered, 269. who should draw, 269. drawing up and perfecting necessary to give them effect, 269. submitting copy to adverse party, 269. settling by register, 269. when register to apply to court to settle, 269. stipulation as to, 269 omitting to enteV in time, 270. entering mine pro tunc, 270. effect of order nunc pro tunc, 270. where several applications are decided at same time, 271. forn' of, 270. caption of, 270. title of suit, 270, 271. INDEX. 937 Orders — Continued. complainant's name to be inserted first, 270. recital, 270. relation back, 281. ordering part, 271. construction and effect, 271. computing time upon, 271. ordering nisi, 271. to be one day inclusive and one exclusive, 272. when first day to be excluded, 272. meaning of term '' instanter," 272. when to take effect, 272. effect of, generally, 272. irregular, orders, 272. when application may be made to vacate, 272. distinction between irregular and erroneous orders, 272. made without jurisdiction is void, 272. order erroneous in part, 273. chancery rule 80 does not refer to orders, 273. order based on infant's admission will be reversed, 273. service of, 273. when necessary, 273. method of service, 273, 274. ' to bring party into contempt, 274. orders nisi, 274. orders to show cause, 274, 275. orders, how enforced, 275. in general, by process of contempt, 275. order for payment of costs, 275, 27G. against a person not a party to the record, 276. order nisi that the act ordered be performed or that the person stand committed, 276. opening, modifying and discharging, 277. improper order, 277. orders by consent, 277. orders of course, 277. to appear, against absent, etc., defendants, 49. of reference, after pro confesso, 50. pro confesso. See Bill. to deliver copy of bill, 55. final and interlocutory, 208. See Appeal. 118 938 INDEX. Papers, production of. See Production of Papers, examination of, 133. to be filed by commissioner with register, 136. to be furnished on hearing, 166 by whom to be furnished, 167. submitted, how to be marked and entered, 168. service of, in supreme court, 228. in clerk's office, 240. on motions, 262. copies of, costs for, 566. Parcels, sale by, 152. Pardon, of a person sentenced to imprisonment, will not restore his marriage rights, 581. Parties, who can sue or be sued, 8. are those against whom process is prayed, 14. names should appear in prayer for process, 14. who are proper parties, 21. persons interested too numerous, dispensing with a part, 22. who are necessary, 22, 24, notes. married women as, 23. encroachments on highways, suits in corporate name, 24. cesiuis que trusts as, 24, note. to bill for specific performance, 24, note. in U. S. courts, 24, note. non-joinder or mis-joinder, objection for, 24, 59, 648. interest of, averments, 25. complainant's name must be placed first as entitling and endorsement, 30. amendments relating to, 96, 97. amendments of course, for want of, 98. amendment for want. of, at the hearing, 101. amendment to' add, at rehearing, 196. effect of amendment adding new parties, 102. "■ objections for want of, at hearing, 173. ordering cause to stand over to add costs, 173. examination by court, 175. tlTDEX. 939 Parties — Continued. unnecessary, costs to, 235. to bill of revivor, 342, 344. to bills in the nature of revivor, 354. bringing in by supplemental bill, 360. to supplemental bill, 361. to bill of review, 372. to cross-bill, 395. to creditor's bill, 409. to bill to redeem from a mortgage, 466. to bill to redeem, complainants, 471. to bill to redeem, defendants, 472. in partition proceedings, 484. to suit on mechanics' lien, 515, 516. to bill to quiet title, 527. in probate of foreign will, 530. costs as between party and party, 562. costs as witnesses, 566. in'suits for divorce, 587. testifying in open court, 594. in specific performance, 641. to bill of foreclosure, 426. complainants, 426. one holding the equitable title may foreclose, 426. holder of the legal title should be made a party, 426; in case of an'under mortgage, 427. where mortgage has been assigned, 427. second mortgagee paying first mortgage, 427. where mortgagee is dead, 427. mortgage conditioned for support, 427. legatee may foreclose a mortgage specifically bequeathed, 427. partners, mortgage to one only, as trustee, 428. all persons having a legal or equitable interest in mortgage, necessary, 428. all persons entitled to the whole mortgage money must be be- fore the court, 423. defendants, 428. all persons interested in equity of redemption, necessary, 428. encumbrancers, 428. ' prior mortgagees, 428. encumbrancers who have become such pendente lite, not necessary, 428. 940 INDEX. Parties — Continued. mortgagor against whom a personal remedy ,is barred, necessary, 429. a defendant whose connection with the mortgage or the equity of redemption is not shown by the bill is not a proper party, 429. collateral undertakings, 429^ grantee agreeing in deed to pay mortgage, 429. grantee purchasing subject to encumbrances, 430. payment assumed by grantee, mortgagor not necessary, when, 430. one who has bought mortgaged property and promised to pay the mortage, 430. living out of the jurisdiction, no personal decree, 430. mortgagee who has assigned mortgage and guaranteed the pay- ment, 430. personal representatives of mortgagor, 430, 431. heir of mortgagor, 431. death of one of several assignees of mortgage, 431. doctrine of survivorship, 431. adverse titles, 431, 432. wife of mortgagor, purchase money mortgage, 432. only those of whose claims mortgagee has actual or constructive, notice, 432. fraudulent grantee of a title equitably subject to the mortgage is a proper defendant, 433. where the mortgage secures a joint and several note, 433. cestuis que trust, 433. ^ minors whose guardian has assigned a mortgage be held for them unnecessary, 433. non-resident defendants, statute extends to all, 433. guarantor of collection of debt, 433. purchaser mentioned in sheriff's certificate of execution sale, 433. importance of thorough search in register's office, 434. Partition, nature of, 480. chancery had not an original jurisdiction, 480. ■ proceedings are regulated by statute, 480. who may have, 480. how ai)d where suits commenced, 480. when may be made by decree of probate court, 481. when bill will not lie, 481. INDEX. 941 P artit ion — Continued, legal title disputed, complainant sent to court of law, 481 what possession necessary, 481, 484. meaning of "estate in possession," 481. for tenant in common out of possession, 481. of lands leased for term of years, 482. where state is interested, 482. wife-may be made a party, 482. ' cannot revive barred claims, 482. jurisdiction over non-residents, 482. between joint owners though there is a remedy at law, 483. not allowed on foreclosure bill, 483. rights may be modified by contract, 483. voluntary, among heirs, cannot prejudice rights of execution purchaser, 483. when refused because of joint improvements and voluntary commingling of interests, 483. construction of New York statute followed here, 483. is a local proceeding, 483. only enforced in court having jurisdiction of the territory where the land is, 483. otherwise in proceedings for accounting between parties, 484. parties, 484. must have an estate in possession, 484. estate in remainder or reversion not sufficient, 484, defendants must be served with subpoena, 484. bill may be taken as confessed, 484. who should be made parties, 484. creditors unnecessary parties, 484. creditors' lien how effected, 484. how lien transferred, 485. petition to be made party, 485. creditors may be made parties, 485. lien, how set forth in bill, 485. tenant in common who is also a lessee, claims considered together, 486. executors and devisees of tenant in common, 486. unknown or non-resident parties, order to appear, 486. guardians as parties, security from, 486, 487, 630. partition between heirs, 487. bill, must be under oath, 487. must particularly describe the premises, 487. allegations as to interest of parties, 487. averments as to lease, in answer, 488. 942. INDEX. Partition — Continued. particular facts which must be set forth, 488. when demurrable for want of panics, 488. equitable rights of the parties must appear from the pleadings, 488. allegation of executor's interest, 48S. partition and assignment of dower are proper incidents, 488. partition not an incident to suit for accounting, 489. amendment of bill, 489. to make parties of those who have specific liens, 489. to add new parties after lis pendens, 490. notice ol lis pendens, 489. appointment of guardian ad litem, 490, 630. taking bill as confessed, 490. practice as to infants, 490. reference to commissioner, 490, 491. defendant may deny joint tenancy or tenancy in common of any co-defend- ant, 491. feigned issue may be ordered, 491. proof before commissioner, 491. decree in, 491, 493. the two methods of division, 491. partition without sale, practice on, 491. when answer unnecessary, 492. when complainant must make proof of title, 492. hearing, what determined upon, 492. when compensation will be decreed, 492. reference to circuit court commissioner, 492. appointment of commissioners in partition, 493. oath of commissioners, 493. how commissioners to act, 493. abatement of suit after commissioners appointed, 494. report of commissioners, 494. expenses of commissioners, how allowed and paid, 494. confirmation of report, decree, 495. decree, upon whom binding, 495. accounting may be, ordered, 495. when decree will not preclude heirs from bringing ejectment, 495, opening decree, 495. decree will respect voluntary partition, 496 voluntary partition, transfer of lien, 496. partition of each of several distinct parcels, 496. estimating complainant's share of encumbrance, 496. XNBEX. 943 Partition — Continued. appeal from proceedings, 496. proceeding by sale, 497. order for sale, 497, 498. terms of credit, 497. investment of purchase money, 497, 498. security when credit allowed, 498. mortgages for purchase money, 498. notice of sale, 499. terms of sale, 499. who not to be interested in sale, 499. report of sale, 499. executing conveyances, 499. conveyances to be recorded, 499. effect of conveyances, 499. directions of the statute, 499, 500. miscellaneous provisions, 500. provisions in regard to infants, 500. and idiots, lunatics, etc., 501. where lands are encumbered, 502. lands held by trustees, 502. setting off interest of a deceased party, 502. protection from waste, 503. whole interest of tenancy in dower, by the curtesy or for life passed by sale, 503. payment of satisfaction for such interest, 504. investment of proceeds, 504. proportion of proceeds, how determined, 504. inchoate right of dower and other future interests, 505. securities, how to be taken, 506. costs upon final decree in, 506. sale of premises of unknown owner on execution, 507. costs on dismissal or discontijiuance, 507. decree in, held final, 210. receivers in, 322. Partnership, claims, when concluded, 20, note, partners as complainants in foreclosure, 428. receiver in suits respecting, 646. Part Performance, as ground for specific performance, 637, 638. 944 INDEX. Payment of Money into Court. See Deposit. general rule as to, lOG. appliction may be by special motion or petition, 107. upon admissions in answer, 107. motion not granted before answer, 107. except in case of manifest fraud, 107. principal sum only, ordered, 107. does not discharge trustee or alter parties' rights, 107. usual cases for, 107. order should specify time for, 107. money, how deposited, 107. care, custody and investment, 107, note. after filing bill of review, 373. Paving, suit to enjoin enforcement of assessment, parties, 23. Payments, complainant when to be sworn as to, 51. Penalty, for refusal to discharge mortgage, 451, 452, 453. recoverable on bill to redeem, 478. Pendency of Suit. See Lis Pendens. Perpetuating Testimony, 396. See Bill to Perpetuate Testimony. summary method provided by statute, 400. Personalty, contracts relating to are not, usually, specifically enforced, 633. Petition, nature of, 262. to whom, and how addressed, 262. when proper to be resorted to, 262, 263. distinction between motion and petition, 263. in general, cannot be presented until bill is filed, !63. who may present, 263. how entitled, 264. requisites of, 264. signing and swearing to, 264. verified in same manner as bills, 264. jurat, 264. service of, 264. hearing of, 264. petitioner's failure to appear, 264. INDEX. 945 Petition — Continued. order upon, v)fhen no oppositiop is made, 264. costs for appearing to oppose, 264. affidavits in opposition, 265. for a commission to examine witnesses, 143. for commission to prove a will, 530. ior rectification of decree, 193, 197. injunction upon, 301. (or a ne exeat, 325. what facts it should state, 327. to revive, under the statute, 334. for leave to file bill of review, 372. to enforce mechanics' lien, 516. for appointment of next friend of infant, 619. how eiititled, 619. for leave to sell real estate of infants, 626. must be sworn to, 626. by whom to be made, 626. what should state, 626. reference to a commissioner, 627. Plea, nature and uses of. 65. reduces cause, or some part thereof, to a single point, 65. affirmative plea, 65. negative plea, 65, 66. different kinds of pleas, 66. pleas to the jurisdiction, 66. pleas to the person, 66. pleas to 'the bill, 66. pleas in bar, 66. must be accompanied by an answer, 67. frame of, 67. title, 67. protestation, 67. must state what part of bill it is to cover 67. must be perfect in itself, 67. conclusion of plea, 67. must not be double, 67. what will render it double, 67. may be bad in part and good in part, 68. this rule applies only to its extent, 68. must be certain, 68. 119 946 INDEX. plea — Continued, where it is accompanied by answer, 68. of release and account stated, must be supported by answer, 68. of account stated, requisites, 68. must rest defense on a single point, 68. must be positive, when, 68. to one part of bill, and answer to another, 68. superseded by amending the bill, 69. of former suit pending in another court, 69. of bona fide purchase without notice, 69. that complainant has assigned his interest, 69. mandamus will not lie td set plea aside as irregular, 69. signature, 69. when it must be upon oath, 69, 70, 648. copy must be served, 70. time of pleading, 70. effect of failure to plead, 70. overruling, amendment of bill after, 70. practice on filing, 70. placing on the calendar, 71. effect of replication to, 71. argument of, 71. matter in, when taken as true, 72. issue upon, practice, 72. found untrue, complainant entitled to decree, 72. practice in allowing or overruling. 72. when not to be overruled, 72. superseded by answer to amended bill, 72. saving benefit of, at the hearing, 72. ' ordering plea to stand for answer, 73. in bar, not favored, 73. frivolous pleas, practice as to, 73. overruled, further plea not received, 73. amending plea, 73, 74, when must be supported by answer, 74, 75, 76. answer in support of, is no part of the defense, 75. requisites of answer to support plea, 75. practice on filing, and effect of pleas in U. vS. court, 76, note. defendant cannot plead to what he has demurred to, 93. overruled by answer, 93. to bill of revivor, 347. to supplemental bill, 365. INDEX. 947 Plea — Continued, to bill of review, 376. to cross-bill, 392. to bill to perpetuate testimony, 399. guardian ad litem, must swear to, 623. Pleadings, definition of, 1. must be fairly and legibly written, 30. numbering, 30, note, abbreviation of, to be furnished, 165, 166. notice of, computation of time, 232. Points, to be furnished on hearing, 167. taxation of costs for printing, 287. Possession, enforcing delivery of, to purchaser at commissioner's sale, 160-162. when receiver not to take, 321. what necessary to sustain partition, 481. requisites to bill to quiet title, 524, 525. authority to appoint receiver to take, 647.' Practice, defined, 1. in U. S. courts. See United States Courts. Practice in Supreme Court. See Appeal. revisionary power of supreme court, 5. from what orders an appeal lies, 207. from what orders an appeal does not lie, 211.. final process, 214. transmitting record to court below, 214. appeal to U. S. supreme court, 215. effect of appeal, 215. claim of appeal, 21 5. appeal bond, 215, 218. time for taking appeal, 216. notice of appeal, 217. both parties if aggrieved must appeal, 218. transcript of appeal, 220. cases on calendar, 223. printed record, 223. hearing in supreme court, 224. See Appeal. order in which causes are to be heard, 224. 948 INDEX. Practice in Supreme Court — Continued. notice of hearing, 226. clerk to keep a special motion book, 228. motion in supreme court, 228. See MOTIONS, motion docket, 229. motion for continuance, 230. ♦ special motion days, 230. dismissal of appeal, 231. computation of time, 232. costs and taxation of costs, 234, 237. See Costs in Supreme Court. damages for vexatious appeals, 237. re-hearing, 240. See Re-hearing. re-argument, 241. amendments in supreme court, 242. jurisdiction on appeal, 243. See Appeal, what brought up by appeal, 244. final decree on reference, 244. prejudicial error, 246. dismissal for defective pleadings, 246. when decree below affirmed, 247. when decree reversed, 247. practice on appeal under vessel law, 253, nete. alimony on appeal, 603. Priority, order of, in sales under decrees, 153, 154. of origiiial bill, how lost after filing cross bill, 394. of lien of judgment creditors, 412 of attaching creditors, mechanics' lien, 522. Prisoners, service of subpoena on, 34. Probate Courts, jurisdiction of, 20. Probate of Foreign Wills, when and how allowed, 530. parties, 530. bill should set forth what facts, 630. prayer of bill, 530. proceedings, 531. commission to take testimony, 20, 531. proceedings on return of commission, 531. proof of foreign laws concerning wills, 531, iNtJEX. 949 Probate of Foreign Wills — Continued. effect of probate and allowance, 531. appeal, 532. Process, prayer for, 14. usually indicates the defendants, 14. cannot, issue till bill is filed, 30. to compel appearance or answer, 32. , service of subpeena, in U. S. courts, 33, note. on married women, 33. on prisoners, infants, lunatics, 34. . on absentee defendants, what diligence required, 34, note. on a corporation, 34, 35, 37. substituted service on corporation, 35. on railroad companies, 35. on mining, manufacturing, and foreign insurance companies, 35, note. on foreign corporations, 35, 36. extraordinary service, 36. computation of time for, 233. attachment to compel appearance, 37. absence of defendant, affidavit for order, 49. effect of amending bill, 102. to bring back parties after dismissal of bill, 104. to enforce decree, 204. caimot issue on final decree before enrollment, 206. final, when to be made returnable, 214. final, issue of from supreme court, 240. on supplemental bill, 364. attachment for not returning, 539. of commitment for contempt, 547. Prochein Ami. See Next Friend. Pro Confesso, 52. See Bill. for want of an appearance, 50. taking bill, for want of answer, 52. bill taken, when heard out of its order, 165. opening decree, 53, 200. decree, 200. See Decree. against absent, etc., defendants, 48. opening decrees against, 186, 201. will not deprive defendant of right to notice of subsequent proceedings, 39, 131, 201. 950 Index. Pro Confesso — Contiiiued, by judgment debtor, 414. in divorce cases, 593. Production of Papers, previous to hearing, on what principles ordered, 55, 104. motion for, is special, how founded, 105. cannot be founded on affidavit that the deed is in defendant's posses- sion, 105. admission in answer necessary, 105. form of the motion, 105. what is a sufficient admission and description, 105. what is a sufficient possession by defendant,' 105. , ■ complainant's interest in documents, 105. defendant's right to production, 106. mode of inspecting, 106. upon a reference, to^a commissioner, 132. examination of books, etc., 133. Proofs. See Deposition, Evidence, Testimony, Witness. ordering cause to stand over, to supply, 174. of allegations in answer, when necessary, 1'70. Publication, of orders to appear, 50. rights of defendant brought in by, 51. of notice of foreclosure sale, 149. after adjournment of sale, 150. under creditor's bill, of order to exhibit demands, 410. affidavit of, 283. See Affidavit of Publication. Purchaser, at commissioner's sale. See Sales under Decrees. Q. Quieting Title, bills of peace, when allowed under the old practice, 523. court of equity will not try a title at law, 523. equitable cause of action enforced whether complainant is in possession or not, 524. jurisdiction under the code of 1833, 524. effect of the statute of 1840, 524. jurisdiction of equity is intended to reach persons out of possession, 524. INDEX. 951 Quieting Title — Continued. courts of equity are not the proper tribunals for settling titles to land, 525. bill will not lie against one in possession, when, 525. complainant is only bound to make out a presumptively good title, 525. fraudulent acquiring of possessioA will not authorize bill, 525. possession of part of the premises, when sufficient, 525. complainant shown not to be in possession, 525. bill to remove cloud on title not sustained if cloud supported by an equita- ble right in defendant, 525. when purely legal titles Utigated, statutory requisites must exist, 525. equitable remedies existing before the statute was passed, remain, 526. ' in favor of complainant in possession under U. S. patent, against subse- N qvient patent from state, 526. to entire estate, though ejectment pending for a part, 526. cloud on title defined, 526. how long cloud rests on title, 526. bill to remove cloud where complainant deduces title from judicial sale, 526. in case of tax liens, 526, 527. parties defendant, 527, 528, noti. bill for, 528. when retained for further relief, 528. reference as to boundaries, 528. proof of possession under, 528. averment of ownership, 528. allegation of offer for release of invalid tax title, 528. need not show that defendant's claim would h& prima facie good at . law, 528. allegations of fraud must be specific, 529. offering payment of taxes legally chargeable, 529. no formal tender requisite before filing bill to remove an invalid tax title, 529. deposit before injunction to restrain collection of tax or assessment, 529. decree, 529. costs, 529. estoppel, 529, note. laches, 529, note. Railroad Companies, service of process upon, 35. 952 IND-RX. Real Property. See Partition, Quieting TitlS. jurisdiction as depending on value of, 17. doctrine that title to land is not determined in equity, 18. Re-Argument, when permitted, 241. upon what allowed, 242. how to be heard, 242. Receiver, nature of the office, 315. an officer of the court, 315, 316. as a general rule, only appointed upon, bill filed for the purpose, 315. bill need not contain a specific prayer, 315. order appointing, when no suit pending, void, 315. power to appoint, 315, 316. - application for appointment, 315, 316. when appointed, 316. appointment rests in court's discretion, 316. affidavits not received to contradict answer on motion for appointment, 80. discretion of, 316, 320. divesting of legal titles, 316. who may be receivers, 316. appointment of, 317. at what time, 317. in creditors' suits, notice, 317, 414. as a rule, not appointed ex parte, 317. exception, 317. appointment on hearing motion, 317. or after reference, 317. order of appointment, how drawn, 318. not to employ solicitor as counsel, 318. against corporations, sequestration, 318. against bank, 318. case of voluntary dissolution of corporations, 319. who may apply, 319. application, what to contain, 319. affidavit on application, 319. order to show cause, 319. notice of order, publication, 319. proceedings before commissioner, 319. dissolution, when ordered, 320. who may be appointed, 320, security from receiver, 320. INDEX. 953 lleceiver — Continued. powers of receiver, 320. what corporations referred to, 320. discretion of, in carrying on business, 321 . insolvency of, a sufficient reason for removal, 321. cannot sue without leave of court, 8. cannot be sued or garnished without leave of court, 321, 323. taking summary possession of premises, 321. of lands, when appointed, 321. neglect to apply for, waiver, 321. in cases of alimony, 321. against insurance companies, 322. in partition, 322. . in partnership cases, 322, 647. not, unless object of suit is to obtain a dissolution, 322. in mortgage cases, 322. not until foreclosure and sale, 322, 423. against judgment debtors, 322. under creditor's bill, in another state, 322. suit in courts of this state, 322. orders relating to, held final, 209. held not final, 211, 647. appointment of, under creditor's bill, 414. powers and duties of, under creditor's bill, 415, 416. sale of real estate, 416. costs when not allowed to, 416. sale of doubtful claims, 416. no more than one receiver appointed, 416. security from, 416. payment by, of funds, 416. ' discharge of, 416. appointment in subsequent suit, 417. when allowed costs out of the fund, 55B. authority to appoint, to take possession of property, 647. Recitals, in decree, 188. Record, on appeal, 223. See Appeal. of decree, effect on title to real estate, 199. of circuit court commissioner, successor entitled to, 127. what constitutes, in a cause, 186; 120 ©54 INDEX. Record — Continued. reading it as evidence, 186. costs for printing, 235, 238, 239. of conviction for contempt punished sumniarily, 545. Redemption. See Bill to Redeem, 46ti. prayer for general relief treated as one for redemption, 60. of lands sold in mechanic's lien suit, 620. Reference, purposes of, 129. of course, who may execute, 129. practice upon, hovf governed, 129. summons to appear, contents, 130. service of summons, time, 130. return on summons, 130. copy of order of, need not be served, 130. expediting prosecution of, 130. transfer of proceedings. 131. absence or disqualification at hearing, 131. other commissioner may act, 131. or adjourn the matter, 131. proceedings on return of summons, 131. parties entitled to attend, 131. notice of proceedings, when party has appeared^ bill/ro confesso, 131. production of documents, 132. state of facts, 132. nature of, 132. entitling and contents, 132. should be verified "by oath, 132. subpcena to testify, 133. subpoena duces tecum, 133. examination of witnesses upon, 133. examination of books and papers, 133. interpret r for witness, 134. commissioner cannot control order of proofs, 134. objection to testimony must be stated and entered, 134. but commissioner cannot control them, 134. to ascertain amount due, meaning of Ch. Rule 77, 134. error in refusing to receive testimony, proper practice, 134. irregularity or unfairness in taking deposition, 134. order to enlarge time to produce witnesses, 135. order to close proofs, 135. ISDEX. 955 Reference — Continued, return of depositions and exhibits, 135. exception before commissioner, 137. report on, 136-142. See Report of Commissioner. to review report, 141. irregularities in proceedings, waiver, 142. references on default, 50, 142. accounting on, 445. See Accounts. computing interest, 147. after sale, to ascertain if good title can be made, 155. unnecessary after decree, no notice requisite, 201. order of, in foreclosure, to compute amount due, 439, 440, in partition cases, 491, 492. on attachment proceedings for contempt, 541. to take proof, in divorce suits, 593. as to truth of facts in petition^for sale of real estate of infants, 627. in specific performance, as to whether vendor can make title, 644. Register, to notify solicitor, on receiving deposition, 144. to open and indorse returned commission, 144. clerk of circuit or superior court is, ex officio, 10. may issue commission to take testimony, 142, 143. ' how to enter decrees, 192. to transmit transcript on appeal, 220, 221. failure to pay fee, waiver of appeal, 220. to sign and seal injunctions, 309. not subject to garnishment, 323. duty as to moneys paid into court, 107, note. to mark and enter papers submitted, 1 68. certificate as to claims to surplus moneys, 460. petition to appoint him guar.'ian ad liteTn in partition suit, 490. how securities to be taken on partition sale, 506. investments, 506. attachment issued by, without order of court, invalid, 535. Register of Deeds, receiving redemption money, 478, Regularity, affidavit of, 52. Re-hearing, when proper, 194. must be upon grounds exis^ng at time of making decree, 194. 956 INDEX. Re-hearing — Continued. who may apply, 194. manner of applying, 194. what petition to state, 194. when facts to be verified by affidavit, 194. certificate of counsel upon petition, 195. in what time to be applied for, 195. stay of proceedings, 195. deposit on, 195. papers to be furnished on the hearing, 195. on newly discovered evidence, 195, 196. where defendant had made default and bill was amended without new process, 196. on appeal, proofs not opened, but cause remanded, 196. cause defectively settled below, appeal dismissed with leave to move for, 196. evidence upon, 196. opening pleadings and reading evidence, 196. what objections may be raised, 196. leave to amend by adding parties, 196. in connection with supplemental bill in the nature of a bill of review, 196, of decree pro confisso, 200., application for, in supreme court, 240. newjy discovered evjdence, 240. notice and submission to conditions, 240. arguments on merits^ not to be made on motion for, 240. on appeal, proofs not opened, but cause remanded, 240. mistake of judgment in appellate court, 241. where no case settled below, 241. where pro confesso had been irregularly taken after amending bill, 241. practice in U. S. supreme court, 241. Relation Back, of enrollment nunc pro tunc, 200. of delayed decision of motion, 271. Release, plea of, must be supported by answer, 68. Relief, prayer for, in bill, 14. Remedy at Law, when ground of demurrer, 17. what must be, to exclude remedy in equity, 69. objection of, how to be raised, 18, 79. INDEX. 957 Remedies, putting complainant to his election, 110, 111. Replication, nature and office of, 71, 112. must be filed if complainant wishes to prove any fact not admitted by the answer, 112. may be filed to a plea, 112. none, to general disclaimer to whole bill, 113. general, enough to put case at issue, 113. ^ cause deemed at issue, on filing it, 113. no special one to be filed but by leave on cause shown, 113. effect of failure to file, 113. to a plea, admits its truth, 113. established, bars so much of bill as it professes to cover, 113. form of, 113. need not be signed by complainant, 114. when bill is amended after answer, 114. filing nunc fro tunc, 114. special, prohibited in U. S. courts, 114. effect of filing, to a plea, 114. withdrawing, for amendment, 114. is evidence of waiver of oath to answer, 82. waives defendant's signature to answer, 82. not to be filed when disclaimer is to the whole bill, 92. to bill of revivor, 348. upon supplemental bill, 367. to infant's answer, 624. Report, of special guardian, of the sale of real estate of infants, 628. his final report, 630. of commissioners in partition, 494. of sale, 157. See Sales xmoER Decrees. Report of Commissioner, its nature and uses, 136. difference between, and certificate, 136. different kinds of, 136. separate report, 136. nature of, 136. when allowed, 137. costs of, nre in court's discretion, 137. of debts or legacies, certificate with, 137. special report, 137. 968- INDEX.- Report of Commissioner — Continued. nature of, 137. ' not to be made unless directed by decree, 137. only where some equity is reserved, 137. general report, 137. embraces what conclusions, 137. form of, 138. contents of, 138. should not recite whole order of reference, 138. should dispose of all matter referred, 1 38. should allude to separate report; if there be one, 138- should not report evidence unless so directed, 138. confirming, 138. when it becomes absolute, 138. foreclosure sale, 138, 139. what reports require confirmation, 139. excepting to, 138. received as true if no exception taken, 138, 244. finding of facts correct, court will decide on them without an excep- tion to commissioner's conclusions, 138, 140. parties confined to objections taken before commissioner, 139. what ones liable to exceptions, 139. form of exceptions, 139. exceptions should follow the objections taken before commissioner, 139. exceptions are in the nature of special demurrers, 139. must point out the errors specifically, 139. what reports must be objected to by exceptions, 139. when previous objections required, 140. exceptions, when proper, 140. report unexcepted to, binds, when, 140. exceptions, for what not available, 140. exceptions cannot be taken for irregularities m a report, 141. who may except, 141. exceptions by creditors not parties, 141. effect of overruling exceptions, 141. allowance of exceptions, reference back, 141. final decree on reference, 244. reviewing report, 141, without exceptions, 141. reference back to commissioner, 141. after exceptions heard and disposed of, 142. after confirmation of report, 142. INDEX» 959 Report of Commissioner — Commissioner. amending report, 142. Report of Sale, 157. See Sales under Decrees. Re.Sale, of property sold by commissioner. See Sales under Decrees, 150, 160. Residence, of complainant, bill should state, 13, 16. of corporation, transfer of, 35. Resulting Trusts, in favor of creditors, how reached, 408. where conveyance is taken in fraud of person paying consideration, 408. ^Re-Taxation of Costs, 239, 568. See Costs; Costs in Supreme Court. Revivor. See Bill of Revivor. when necessary, 333. methods of, 333. if before decree, defendant can only revive by petition, 333. after decree, by petition or bill of revivor, 333. by petition, 334. only proper where abatement is caused by the death of a party, 334. is a substitute for a bill of revivor, 334. what should contain, 334. not proper when subject matter of suit is assigned by complainant, 334. object of the statute, 334. suggestion of party's death upon the record, 334. by an administrator, 334. against representatives of a deceased defendant, 335. by order, upon a complainant's petition, 335. service of copy of order, 335. orrler of publication of notice, 335. absent or non-resident representatives, 335. answer of deceased defendants, how taken, 335. taking bill as confessed, 336. where further answer is required, 336. on death of complainant, cause of action not surviving, 336. amendment upon, 337. answer to amended bill, 337. by surviving complainant against representatives of deceased com- plainant, 337. petition, what should state, 337. by defendant, against representatives of a deceased complainant, 337, by a surviving defendant, 338. in mortgage installment cjses, 338, 339. 960. INDEX. Revivor — Continued. by grantees in partition, 339. Revivor and Supplement, Bill of, 358. See Bill of Revivor and Sup- plement. Revivor, Bill off, 340. See Bill of Revivor. Revivor, Bill in the Nature of Bill of, 352. See Bill in the Nature OF Bill of Revivor. Rules, supreme court's power to make, 5. governing circuit court commissioners, 126. as to taking testimony under commission, 143. s. Sale. in partition suits, 497. in partition, investment of proceeds, 504. proportion of proceeds, how 4etermined, 504. of the real estate of infants, 625. See Infants. of infant's land held in trust by executors, 43, note, guardian ad litem in, 43, note, 44, note. Sales under Decrees, by whom conducted, 148. time and place of, 148. year and six weeks before foreclosure sale, how computed, 149. notice of, 149. who to give, 149, time and manner of, 149. description of the real estate, 149. contents of, 149. enrollment of decree, 149. of foreclosure sales to be on forty-two days' notice, 149. when publication to commence, 149. after an adjournment, 1 50. failure to give, liability for selling, 150. fees of officer, 135. adjournment of, 150. who has power, 3 50. when notice to be published, 150. posting notices, 150. INDEX. 961 Sale under Decrees — Continued. on complainant's motion, he pays the expense, 150. further advertisement when unnecessary, 150. where bidder fails to make payment, 150. in case of commissioner's absence, 151. mode of conducting, 150. failure to pay, re-sale, 150. officer not to be interested, 151. employment of auctioneer, 151. complainant's solicitor, part of, 151. after commissioner's term expires, 151. when property to be sold in parcels,- 152. inverse order of alienation, 153. priority, rights of subsequent encumbrancers, 154. where commissioner's conduct is improper and oppressive, 156. purchaser, rights and liabilities of, 155. discha^ng, when unable to perform, 155. compelled to make good deficiency on re-sale, 155. order to pay and to be let into possession, 155. reference to enquire as to title, 155. discharge on purchaser's request, 155. when not permitted to abandon purchase, 155. discharged if biddings are opened, 158. reference as to compensation, 155. substitution of another purchaser,;i56. rights of not fixed before sale confirmed, 156, 157. risks regularity of title, 159. purchases only what can be lawfully sold, 159. entitled to growing crops, 1 59. entitled to profits of estate from time of sale, 160. has a right to presume that sale is conducted legally, 160. must ascertain whether order of sale was warranted, 160, enforcing delivery of possession, 160-162. See Writ of Assistance deeds on foreclosure, 156, who executes, 156. what must contain, 156. effect of, 156. minute as to, by register of deeds, 156. report of sale, 157. order of course to confirm, 157. when becomes absolute, 157. confirmation necessary to fix purchaser's right, 157. 121 962 INDEX. Sales under Decrees — Continued. practical confirmation by purchaser, 157. order nisi sufficient in default case, 157. order to correct, should specify the errors, 157. error in, when immaterial, 157. opening biddings and re-sale, 157. general power of courts of equity, 157. application, how made, 158. grounds for, 158, 159. effect of opening the biddings, 158. inadequacy of price, 158. at the purchaser's instance, 158. matters inquired into on the application, 158. where complainant had agreed to postpone a sale, 158. stronger case to be made after confirmation of report, 159. showing as to fraud, after confirmation, 160. petition should state the proposed amount as to advance of former bid, 160. proceedings on re-sale, 160. validity, how attacked when rights of third parties have accrued) 159. neglect to re-engross foreclosure bill after amending it, 160. application of proceeds and surplus, 460. in proceedings against non-residents, etc., 445. execution for deficiency, 462. in mechanic's lien suits, 520. distribution of proceeds, 521. Scandal, definition of, 27. may be excepted to and expunged with costs, 27. exceptions to bill for, 55. what constitutes scandal, 95. exceptions to answer for, 95. exceptions for, to unsworn answer, 82. exceptions before commissioner, 137. in affidavits, 283. not to prove adultery, 578. Security for Costs, if bill fails to state complainant's residence, 16. where complainant is a non-resident, 16, note, 56. on appeals in U. S. courts, 214. security for, from non-residents, in mechanics' lien suits, 517. INDEX. 963 Sequestration, old process to compel appearance, 34. to compel appearance of corporation, practice dispensed with, 37. of stock of corporation, 318. where husband neglects to pay alimony, 321. for contempt, 547. Service, of copy of demurrer, 62. of copies of pleadings, time of, 70. amendments must be served, 98. of commissioner's summons on reference, 130. of subpoena to testify, 133. of copies of papers on which special application is founded, 164. of notice of hearing, 164. of notice of appeal, 217. of notice of hearing of appeal, 226, 227. of printed record on appeal, 224. of papers and notices in supreme court, 228, 229. of orders of court, 273, 274. of ne exeat, 828. of notice of mechanics' lien, 512. of copy of bill of costs, 568. of notices not necessary upon parties who have not appeared, 39. of notice of motion, 260. See Motions. of orders, 273. See Orders. affidavit of, requisites of, 282. of injunctions, 309. See Injunctions. Settling Cases Heard in Open Court, practice on, 250. case how made and certified, 251. to be filed in register's office, 251. when to be filed, 251. case must be properly made under the statute or court will not consider it, 251. although register returns the testimony with his transcript, 251. documentary evidence submitted below, at hearing, by stipulation, how treated, 251. extension of time for, 252. appeal after, how taken, 252. failure to settle, benefit of testimony heard in open court is lost, 252. delay, settlement after three months when good, 252. 964 INDEX. Settling Cases heard in Open Court — Continued!. resignation of judge before settling case, 252. where judge goes out of o£5ce, from stenographer's minutes, 649. case not settled and certified within the statutory time, subsequent certifi- cate to transcript of stenographer's minutes, 253. no case settled but copy of stenographer's minutes filed and sent up, 253. time for appeal dates from settlement of case, 253. appeal regularly taken but no case settled, how cause stands for hearing^ 253. Set Off, in foreclosure, 454. generally equity follows the law, 557. limitations to the rule, 557. of costs, 556. Sheriffs, are ofiScers of court to execute process, 10. when sheriff a necessary party in quieting title, 528, note. Signature, printed signature not good, 28. Solicitors, are all counsellors, in this state, 10. must sign bill, 28. must indorse subpoena to appear, 32. remedy against for appearing without authority, 54. employment of, authority, 54. must sign demurrer, 62. must sign plea, 69. answer ratifying agreement, made by solicitor without authority, 86. costs against, filing bill without complainant's consent, 103. incompetency to testify, 117. must sign petition, 264. substituted service on, of order, 274. when affidavits not to be sworn to before, 288. oath made by solicitor of record, court notices, 411, note. costs as between solicitor and client, 561. of an infant, his rights in fund, 620. conduct of, how far binds infant, 621, 623. of guardian, cannot bind infant's rights in foreclosure, 624. money of infant litigants, not to be paid to, 624. solicitor's fee in mortgage, 453, 454. INDEX. 965 Specific Pferfortnance. See Bill for Specific Performance. State, suits by, how commenced, 7. suits by, where commenced, 9. suits by, in circuit court for county of Ingham, 9. quieting title against sales to for unpaid taxes, 527. service of subpoena out of, 33. State of Facts, nature of, 132. ground work of commissioner's report, 132. entitling and contents, 132. swearing to, 132. Statute of Limitations, amendment to set up when not permitted, 90. Staying Proceedings, circuit judge has no power at chambers, 123. power of circuit court commissioner, 126. when forbidden, 126. effect of stay of execution, 126. on execution against the body, 126. appeal from commissioner is not, without special order, 136. on application for a rehearing,. 195. when appeal operates as, 215. See Appeal. application for, must be made to the court, 300. until discovery obtained in aid of defense at law, 379. upon filing cross-bill, 393. on action at law pending foreclosure in chancery, 420. by injunction, 302. See Injunctions. Stenographer, compensation of, 129. expense of copies of minutes, 239. taking testimony of losing party, costs, 239. settlement of case from minutes of, 649. Stipulation, taking testimony by, 128, 129. for transfer of cause, 163. to aid in interpreting decree, 183. Stockholders, stockholder may be appointed receiver, 320. receivers are trustees for, 320. 966 INDEX. Stockholders — Continued. omission to join all as complainants, 646, Subtiiission of Cause, how made, 168. Subpoena to Appear, definition of, 32. new form of, 30. must contain notice of the filing of the bill, 32. and of the time when appearance must be entered, 32. must designate the defendants against whom a personal decree is asked, 32. must contain the names of all the defendants, 32. how to be tested, 32. when to be made returnable, 32. not executed before return day, new one taken out, 32. must be sealed with the seal of the court, 32. must be signed by the register or deputy, 32. must be endorsed with the name of the solicitor, 32. service of, 33. when to be served, 33. how to be served, 33. may be served in any part of the state, 33. service out of the state is irregular, 33. appearance waives irregularities, 33. who can serve, 33. copy served must follow original, 33. return day falling on Sunday, 83. unnecessary, defendant brought in by publication, 33. injunction not to be served without it, 33. formal defects in signing and service, when disregarded, 33. service on married women, 33. service on prisoner, 34. service on infants, 34. service on lunatics, 34. service on non-resident, 34. service on a corporation, 34. service on a foreign corporation, 35, 36. extraordinary, or substituted service, 36. for want of finding officers of corporation, 35. should, in general, be directed by coUrt, 36. upon bill of revivor, 346. upon supplemental bill, 364. INDEX. 967 Subpcena to Testify, ' before a commissioner, upon a reference, 133. duces tecum, 133. before officer taking testimony by stipulation, 128. Subrogation, of purchaser of mortgaged property, 430. upon redemption by junior encumbrancer, 469. Substituted Service, for want of finding officers of corporation, 35. when may "be resorted to, 36. statutory provisions must be strictly complied with, 36. Suit in Chancery, how commenced, 7. where commenced, 9. Summons, to appear before commissioner, on reference, 130. Sunday, subpoena not to be returnable on, 32. return day of subpcena falling on, 33. last day for appeal, appeal must be taken Saturday, 217. in computing time on notice of hearing, 227. in computing time, 233, 234. Superannuated Persons, answer of, 87. Supplemental Answer, used instead of amendment, 90. application for leave to file, 90. matter must be new, 90. and not contradictory of statements, in first answer, 90. must give reason for omission, 90. ' leave to amend or file, is generally on terms, 91. Supplemental Bill, nature and uses ot, 359. when proper, 359, 360. ' not permitted where defect can be supplied by amendment, 360. matters which have occurred since filing original bill, 360. to bring in parties omitted by original bill, 360. may be filed as well after as before decree, 360. bill after a decree, 360. to show a transfer of interest, 361. D68 tNDEX. Supplemental Bill — Continued. parties to, 361. unnecessary to bring in merely formal parties, 361 . to obtain benefit of former proceedings, must be in respect of same titlej 361. hew party, how stands, costs, 362. form of, 362. prayer, 362. application for leave to file, 363. must be obtained from court, 363. granted on ex parte application by motion or petition, 363. probable cause for, leave granted of course, 363. notice required in case of doubt, 363. or where preliminary injunction is asked, 363. or some special relief before appearance, 363. in U. S. circuit courts, 363, note. process upon, 364. defenses to, 364. demurrer, when proper, 364, 365. motion to take from files, when will not lie, 365. plea, 365. practice on demurrer and pleas, 365. answer to, 365. answer to included with answer to original bill, 366. form of answer, 366. proceedings after answer, 366. replication, when necessary, 366. evidence upon, 367 hearing of, 367. decree, when necessary, 368. entitling orders, 368. dismissing bill, 368. decree, form of, 368. may be added to bill of review, 375. filing vacates order of default, 46. to reach debtors after acquired property, 409. by another creditor, after complainant's death, 182. See Bill of Revivor and Supplement, 358. Supplemental Bill in the Nature of a Bill of Revivor, to introduce matter discovered since decree, 196. or since it could have been introduced, 197. in what time to be filed, 197. Supplemental Bill in the Nature of a Bill of Revivor — Continued. deposit or security on, 197. when to be heard, 197. rehearing of decree to be had at the same time, 197. Supreme Court, power to make general rules, 5. order of, not affected by order of circuit court commissioner, 124. can prescribe rules to govern circuit court commissioners, 126. as to taking testimony under commission, 143. practice in, 205. See Appeal. costs in, 234. See Costs in Supreme Court. hearing in, 224. See Appeal. motions in, 228. See Motions. rehearing in, 240. See Re- Hearing. Sureties, in appeal bond, 219. approval of sureties, 220. suflSciency of, in bond to stay "proceedings, 305. Surplus Moneys, after foreclosure sale, application of, 460. who entitled to notice, 461. from mechanics' lien, 521. Surprise, a ground for opening biddings at a commissioner's sale, 158. Survivorship, doctrine not favored, 431. not applicable to personal securities, in case of husband and wife, 43L Taking Prom the Files, bill, because not signed, 28. plea, because not sworn to, 70. answer, because without defendant's signature, 82. for irregularity in frame or form, motion for, 91. supplemental bill, when motion will not lie, 365. Taxation of Costs, 237, 561. See Costs ; Costs in Supreme Court. Taxes, enjoining sale for, 19, 20, note, 122 970 INDEX. Taxes — Continued. ' restraining collection of, 306, 529. quieting title against, 526, 527, 528, 529. payment of taxes by mortgagee, allowance for, 440. foreclosure not to be repeated for, 648. Tenants in Common, complainants, death of pne, revivor, 344. partition between, 481. See Partition. Tender, of amount due on mortgage, 451, 452. discharges mechanic's lien, 514. before filing bill to remove invalid tax title, 529. in specific performance, 636. Terms, of circuit court in chancery, 165. Testimony, when to be taken, 115. not necessary, if no replication filed, 115. may always be taken by consent, 115. who may be witnesses, 115. See Witness. examination of witnesses, 117. See Witness. commission to take, where may be executed, 117. proof of exhibits viva voce at the hearing, 117. examination of witnesses de bene esse, 117. under order of court, on special application, 118. by summary proceedings under the statute, 119. practice as to taking, in U. S. courts, 120, note. may be taken before justice or notary, by stipulation, 124. order for taking, and notice, 127. notice for taking of testimony, 127. notice of names and places of abode of witnesses, 127. and of time and place of examination, 127. and of person before whom to be taken, 128. order that proofs be closed, 128, 135. taking testimony by stipulation, 128. who may take, 128. power of officer, 128. notice of, 128. practice and use, 128. subpoena for witnesses, 128. stenographer, 128. INDEX. 971 TestiiUbny — Continued. fees of officer, 129. compensation of stenographed, 129. officer to file deposition with register, 129. commissioner cannot control order of, 134. objections to, before commissioner, 134. error of commissioner in refusing, remedy, 134. return of depositions by commissioner, 135. by commissioners upon a commission, 142. how and when commissions may issue, 142. testimony to be reduced to writing, signed and filed, 143. when witnesses reside out of the state, or more than thirty miles from commissioner's residence, 143, petition to register, notice, 143. where adverse party wishes to join, 143. proceedings on commission, 144. taking testimony in open court, 168, 169. all offered should be admitted, 169. benefit lost by not settling case, 252. what evidence can be read at the hearing, 171. ordering cause to stand over for proofs, 174. taken in open court, settling case, 250, 649. bill to perpetuate testimony, 396. summary method of perpetuating testimony, 400. when taking justified, 400. deposition how taken and certified, 401. Time, computation of, as notice of pleadings, 232. , general rule for computing, on notices, 233. in notices of hearing, 233. in service of process, 233. return of summons, 233. day of month, when to govern, 233. notices required by rules of court, when Sunday included, 233. last day falling on Sunday, 234. as to holidays, 234, note. allowance for counsel's distance from place of hearing, 234. order of court for payment of money in so many days, 234. for return of subpoena to appear, 32. to enter appearance, 40. to file demurrer, 62. to serve copies of pleadings, 70. 972 INDEX. Time — Continued. for filing answer, 83. for examinations de bene esse, 118. for service of summons on reference, 130. order to enlarge, to produce witnesses, 135. to appeal from commissioner, 136. notice of foreclosure sale, 149. before sale on foreclosure, 149, 150. when decree considered as entered, 192. for absent, etc., defendants to appear after decree, 201. for taking appeal, 216. See Appeal. for return of transcript on appeal, 220. for service of notice of hearing, on appeal, 226. for settling case heard in open court, 251. i extension of, 252. for appeal, where testimony was taken in open court, 253. for notice of motion, 260. computation of, upon orders, 271. to file bill of review, 374. proper time for filing cross bill, 389, 390. how much to elapse before foreclosure sale, 419. for foreclosure after maturity of notes, 425, to file bill to redeem, 469, 471. what time allowed for redemption, 477. Transcript, of record, on appeal, 220. See Appeal, Transfer of Causes, when judge disqualified, 162. who may apply for, and to whom, 162. application for, 162. time and place of hearing, 162. manner of notice, how directed, 163. hearing of, 163. to what county, 163. jurisdiction, when obtained, 163. order and notice of transfer, 163. duty of register, 163. order is for a "transfer of the cause," 163. stipulation for, 163. Translation, of answer of foreigner, 87, INDEX. 973 Trespass, injunction to restrain, 298. Trustee, discontinuance by, of suit, 103. compensation for, 218. when necessary party to bill to redeem, 474. when allowed costs out of the fund, 558. Trusts, resulting, how reached, 408. partition of lands held in trust, 502. conveyance of lands held in trust by infants, 630. statute of charitable uses is not operative in Michigan, 646. municipal corporations may take trusts for public purposes, 646. u. United States Courts, address of bill in, 12, note. bill in may omit confederating, jurisdictional and charging parts, 13, note. special interrogatories, use and practice under, 13, note, &ame of bill and answers in, 21, note. counsel's signature necessary to bill, 29, note. service of process. in, 33, note. practice in, taking bills as confessed, 46, note, demurrer in, how to be supportedj 58. plea in, how to be supported, 66, note, practice on filing pleas in, 76, note. effect of pleas in, 76, note. defendant need not answer fully, in what cases, 76, note. separate answers by same solicitor, costs, 89, note. practice in, as to answers, 90, note. amending bill in, 96, note. amending bill in, before and after replication, 99, notes, effect of failure to file replication, 113, note. special replication prohibited, 114, note. practice on examinations de bene esse, 118, note. practice on appeals in, 214. injunction to stay proceedings in state court, 306, note, ZdfJ. ne exeats, by whom and when granted, 330. note. practice in case of abatement, 34'3, note. application for leave to file supplemental bill, 363, note. 974 ijSfDEX. United States Courts — Continuedt form of decree for specific performance, 644, note. equity jurisdiction of, 645. have no jurisdiction in divorce cases, 649. or for the allowance of alimony, 649. can enforce a decree for alimony made by a state court, 649. Usury, amendment of answer to set up, 90. Vacation, entry of decree in, notice, 184. Value, jurisdiction by, 16, 17, 407, 453, 644. Venue, in affidavit, 281. Verdict, of jury upon issue of fact, use at hearing, 114. on issue at law, 177. effect of, in mechanics' lien suits, 518. Vessel Law, practice on appeal under, 253, note. Vexation, costs for, after disclaimer, 92. damages for vexatious delay in divorce suit, 609. damages for vexatious appeal, 237, 249. Viva Voce, proof of exhibits at the hearing, 117. examination before a master, 133. • Voluntary Conveyances, by debtor for benefit of family in fraud of creditors, 404, note. making provision for wife, 405. bill to set aside, 405. Voluntary Dissolution of Corporation, proceedings for, 319. no appeal lies, 646. INDEX. 975 w. Waiver, of oath to answer, 13, 70, 82. will not dispense with signature, 81. amendment for, 97. cannot cure want of jurisdiction, 16. by appearance, 33, 39. by absentee's appearance and answer, 51. of default for want of service of copy of bill, 41. of defendant's signature to answer, 82. of exceptions to answer, by amending bill, 102. • of default, by* amending bill to add new parties, 102. of physician's immunity from testifying, 117. of irregularities in proceedings on a reference, 142. of notice of appeal, 218. of appeal, by non-payment of register's fee, 220. of payment of register's fee, 220. of irregularities in appeal, by notice of hearing, 223. of irregularities in orders, 272. of mechanic's lien, 514. of contempt, 550. Waste, power of circuit judge at chambers to restrain, pending trial, 122. jurisdiction in cases of, 294. injunction to stay, 294. motion to dissolve injunction may be founded on affidavit, 312. protection from, in partition, 503. Wife. See Married Women. Wills, commission to take proof of foreign will, 20, 530. costs in suits for comstruction of, 559. Witness, who are competent to he witnesses^ 115. all persons, as a general rule, 115. statutory exceptions, 116. incompetency to testify as to matters equally within knowledge of deceased opponent, 116. ' in case of husband or wife, 116. ministers of the gospel or priests, 116. physicians and surgeons, 116. 976 INDEX. Witness — Continued, privilege may be waived, 117. attorneys, solicitors and counsel, 117. examination of witnesses, 117. methods of, 117. examination de bene esse, 117. 1. Under an order of the court, 118. incidental to every suit in chancery, 118. in what cases resorted to, 118. within what time to be had, 118. notice of application, 118. affidavit in support of motion, 118. order for, 119. where applied for by defendant, 119. mode of taking examination, 119. notice of examination, 119. deposition de bene esse, when cannot be read, 119. practice in U, S. court, 118, note. 2. By summary proceedings under the statute, 119. taxing costs in, 119, note. extent of the examination, 119. causes enumerated by the statute, 120. when deposition not to be used, 120. by notary or justice,~under stipulation, 124, 128. power of officer, 128. notice of examination, 128. practice on, 128. subpoena to compel attendance, 128. stenographer, employment, duty and compensation, 128, 129. by circuit court commissioner, upon a reference, 129, 132. should be preceded by a state of facts, 132. subpoena to compel attendance of witnesses, 133. subpoena duces tecum, 133. mode of examination, 133. interpreter for witness, 134. commissioner cannot control order of taking proofs, 134. order to enlarge time to produce witnesses, 135. fees for taking down cross-examination, 135. in creditor's suit, 415. in suit to annul marriage, etc., 593. in proceedings to sell real estate of infants, 628. by commissioner, upon a commission, 132. INDEX. 977 Witness — Continued, by whom directed to be issued, 142. commissioners may administer oatlis, 14.S. within the state, supreme court may prescribe rules, 143. mode of taking, 143. petition for, 143. form of, 143. to whom to be presented, 143. notice of application, 143. commission when issued of course, 143. joining in commission, 143. interrogatories to witnesses out of the state, 144- how allowed, 144. to be annexed to commission, 144. preparation and service of, 144. commission in case not provided for by the rules, 144. for examination out of the state, copy of instructions mubt be an. nexed, 144. register to open and endorse commission, 144. in outside counties, 647. examination by court, orally, 17.5. taking testimony in open court, 168. instructing witness not to answer, contempt, .534, note. refusal to give evidence under commission, .53"'. calling witnesses to testify in open court in divorce suits, 175, 594. co.sts, 566. Writ of Assistance, nature and use of, 160, 206. when improper, 160. preliminary steps, 161. when granted, 161. appeal lies from order granting, 161. against whom, 161, 162. must be on notice, 161. decree in supreme court allowing, writ issues from circuit court, 1 62. for giving possession of land under a decree, 2u6. Writ of Attachment. See Attachment. Writ of Execution. See Execution. Writ of Injunction. See Injunctions. Writ pf Ne Exeat. See Ne Exeats. INDEX TO STATE CHANCERY RULES. Absent DependaktSj rule proceedings against 16 Abstbact, of pleadings, etc 65 ACOOUNTING, before commissioner 77 Address, of petitions and bills 4 AFFIDAVrrS, to obtain an attachment when a discovery is prayed for 18 to be annexed to costs to be taxed 90 of regularity 92 Agents, to be appointed by solicitors 1 when service may be on ^ 2 double time of service on 3 Aqheements, between solicitors, to be in writing 84 AUENDMENT, of creditor's bill of course 103 AUENDUSHTS, to bill when allowed 21 to be of course, without order 21 not to be of course to Injunction bills 21 service of, necessary 21 to sworn bill, how verified 21 statement of, to be filed 21 after demurrer 22 after exceptions allowed or sub- mitted to 23 Answer, how to be verified — 8 to be put in within twenty days . . 11 effect of, when not replied to 18 on oath, how waived 18 before whom they may be sworn. 19 talcen out of State, how verified ... 19 to cross bill, when demandable. . . 20 on over-ruling plea, etc 26 when deemed sufficient, 30 to ampndmeuts, time for, to be fixed by the commissioner 33 further time for, on exceptions submitted to 35 to amendments, on exceptions al- lowed 36 to amendments and exceptions... 87 Appeals, frofn commissioner 115 when to stay proceedings 115 Appearance, when and where entered 11 on return of attachment served. . . 13 penalty for refusing to enter 13 Arquuent, of exceptions to answer, to be » heard as a motion 39 Attach?ient, for not appearing, when to issue . . 12 "neglect to appear on, penalty for IS proceedings on, to compel appear- ance 13 may issue, for Interlocutory costs, 100 Bank, rule accounts with, how kept by the Register. . _ 87 orders on, how drawn 88 Bills, to be addressed to the Circuit Court, etc 4 of non-residents not to be filed without security for costs 6 to be sworn to, when 7 how to be sworn to 8 manner of stating matters in 8 of revivor, what unpecessary to not sworn to, amendable of course 21 may be amended after demurrer. 22 may be amended on exception allowed 23 state , 44 may be dismissed foi- want of pro- secution 46 dismissal of, if papers not fur- nished 68 for foreclosure of mortgages, how to state encumbrances 91 for divorce, etc., to be sworn to... 95 for divorce, to contain special averments 95 of review, not to be filed without leave 101 by creditors, what to state 102 may be aaueuded 103 Cai^ndar, how made up 63 cause may be entered on in term, 64 Caption, of orders and decree, form of 4 to state where made 4 Case, to be furnished the court by com- plainant at bearing 62 to be not more than one-sixth as long as pleadings, etc 63 Charges, and discharges, before commis- sioners, to be sworn to on ac- counts 77 Circuit Court Commissioner, reference of exceptions, to 28 report on 31-33 may fix time for further answer. . 33 exceptions to his rep't, how heard 39 , proceedings on order of reference 70 to issue summons and fix time of service 70 may settle order of,proceeding ... 72 may direct as to production and custody of books and papers 73 when may proceed eJC parte 74 how examinations to be made 75 exceptions for impertinence or in- sufficiency of papers 76 may examine accounting party on oath , 77 may allow interest 77 may make separate report 78 sale and convey auce of land by . . . 80 978 llfDES TO STATE CHAKCERT RULES, 979 Circuit Court Coid^-R— Continued, rulb may tax costs 89 powers as injunction master in tees, as iujunetion master 118 COMBUSSIONS, to examine witnesses, how ob- < tained 48 to examine witnesses, adverse party may join in l 49 special may be granted 51 how executed ^ 52 how opened and filed 6a Common Orders. how obtained 24 Complainant's Name, to b.' placed first in title of cause. 67 Complainant, - wheji to give security for coats 6 to deliver a copy of bill in fifteen days if required 14 examination of 10 may waive answer on oath .-\ 18 to refer exceptions in ten days 28' to serve a copy of rule in, creditor's suit -. . . . 105 CONVKTASCES, not to be executed before enrol- ment SO Copy. of bill, order of course to deliver in fifteen days, or decree dis- missing suit 14 of rule to be "erved in creditor's fiuit 105 Copies op Pleadinhs, to be furnished to the court on hearing^ 65 by whom f uniished 66 Costs, security for 6 of exceptions submitted to, to be paid by defendant 37 of exceptions for scandal or im- pertinence 30-34 ot tozoeptions, when disallowed. . . 34 order for further answer and for costs 36 taxed bill to be served before time of answering expires 37 of exceptions, penalty for not pay- ing 38 of exceptions to be all included in one bill 40 may be taxed by commissioner or register 89 not to be paid until taxed bill and regul ated in certain cases 90 taxation of 90 affidavit filed 90 to be verified by oath on taxation 90 notice of tax'ation of 90 where bill is dismissed 90 in diyorce cases 90 where there are several defendants of false claims to overplus on sales to be paid by claimant 93 interlocutory, to be paid in twenty days 100 Court, to be addressed to 4 Creditors' Bills, formof 102 to be sworn to 103 may be amended of course 103 receiver on, when appointed ex Sarte 104 mission of defendant on 105 rule to be served with subpcena in 105 Creditors' Bills— ConHnued. rule powers of receiver on 106 injunction on, effect of 109 Cross Bill, when to be answered 20 Date of Issue, to give priority on calendar 63 Debtor, when excused from answering creditor's bill 105 Deeds, etc., not to be read on hearing, without order 56 if stated in bill, and not denied by answer, may be read on hearing of cause 58 DecreBs, caption of, to state when made ... 4 of coui'se, of dismissal for not serving copy of bill 14 by default at hearing 68 to be enrolled before execution ... 80 for divorce, etc.. not granted by default without proof 93 Default, may be set aside on terms 86 Defendant, to appear in twenty days after ser- vice of subpoena 11 arrested on attachment, to enter his appearance 13 may submit to a part of exceptions 27 may decline answering any part ofbill 43 proceedings on examination of, as a witness 55 when excused from answering creditor's bill 105 Demurrer, for want of parties, amendment of course on . . 22 either party may notice it for hearing 25 over-ruled as frivolous or other- wise, order on 26 when not to be held bad 41-42 how placed on calendar, and in what class 63 Deposit, to be made on re-hearing with "register 83 to be made on filing bill of review, 101 Depositions. suppression of. not to be made ex- cept on special motion 54 register to notify solicitor when received 54 solicitor to notify opxx>site sohcitor when received 54 to be returned and filed in ten days after proofs closed 58 how taken, on reference to com- missioner 75 Dl^jcovery, from defendant, how obtained — 12 Dismissing Bill, for want of prosecution 46 for default at hearing , . . . . 68 Divorce, bills for, to be sworn to 95 bills, reference of 96 matters set up in bar of, how tried, 9*1 decree of, not of course on default 98 Documentary, evidence not to be read without order 56 Double Time, time when service on an £^eut. ... 3 980 INDEX a?0 STAM OHAKOEEY BITLES. Enrolx^ibnt, rulb of decrees to be made before exe- cution 80 of decrees, no process to iesue without 80 Entitling, of papers, complainants name to be placed first 67 Examination, of parties, etc., befoie commis- sioner 75 accounting before a commissioner 77 Exceptions, not to prevent motion to dissolve injunction 17 not to prevent dissolution of in- junction 17 for insufficiency, not allowed where oath is waived 18 to answer, to be filed in twenty days 27 not submitted to, to be referred in tenrfiays 28 to be stated on reference of 2d and 3d answer 29 for scandal or impertinence, how taken 30 commissioner's report on, when to be procured 31 when to become absolute 33 commissioner's report on, when conclusive 34 to a report on, to be heard as a special motion 39 costs on, regulated 39 costs on, to be in one bill 40 costs on not allowed in certain cases ^ 40 ' limited to objectioi^ taken before commissioner 76 Execution, of commission « 52 for costs when 100 Ex Parte, when complainant to proceed 15 Exhibits, to be produced before commis- sioner 56 to be returned and filed before hearing 58 Fees, to be detailed on bill of costs 90 allowed in certain cases 90 FOBKCLOSURE SdITS, proceedings in 91 bill, what rights to state 91 reference in suits of course to compute 93 proof as to infants and absent de- fendants 92 affidavit of regularity 92 reference as to surplus on report of comnussioner. .^. __ Guardian ad Litem, not to receive infants' property without security 94 IfEAKINa, of the exceptions, to report on ex- ceptions 30 on bill and answer, if no replica- tion is filed 45 deeds not to be read on, without order. deed may be read in certain cases judgments, or other matter of record may be read may be noticed by either pai-ty. . . time of notice of, how regulated. . 93 Hearing — Continued. rULe case to be furnished court on, in certain cases 62 calendar of causes for, how made up 63 to be noticed for first day of term, 64 papers to be furnished on 65 who to furnish papers for. 66 decrees by default at 68 Impertinence, exceptions for, how taken 30 report on, when to be final 34 Impertinent Matter, order to expuDge 34 Incumbrances, not to be stated at length in fore- closure suits 91 Infants, guardians not to receive property of 94 Injunctions, efEect of, on creditor's bill 109 Interest, on accounting before commis- sioner 77 Interrogatories, to examine foreign witnesses 50 copies of to be served on adverse party 50 Issue, on filing general rei)llcation 45 note of, to be delivered to the register 64 what causes to have priority from date of in calendar 63 Issues, unle^ agreed upon shall be framed by circuit judge y 47 feigned, how made 47 Monet, order for payment of 88 Motions, when to stand over 5 to be made on the day of notice . . 5 to dismiss biU for want of prose- cution 46 special notice of, how to be given . , 61 for reference in divorce causes ... 96 what may be made before com- missioner Ill Mortgage Ca^es, reference of course, to compute amount. ..i 92 reference as to surplus moneys. . . 9^ Ne Exeat, when may be discharged 17 Non-Eesident, complainants to give security 6 defendants' order for appearance of 16 Note of Issue, when to be delivered 64 Notice, when it may be served on agent . . 2 when to put in post office 2 how served in absence of solicitor, a when double time required 3 if no appearance IR of examination of witnesses 47 of application for a commission . . 48 of hearing and special motions. . . 61 of hearing, to be for first day of term 61 to attend on reference, time of regulated 70 of claim to surplus, may on fore- closure be filed 93 not necessary after pro confesso . . INDEX TO STATE CHAN^CBEY EULE3. 981 Nullity, rule of marriage, bill for, to be verified by oath 95 of marriage, reference to take proofs 96 Oath, to bills and answers 8, 19 waiver of 18 Orders, at same time to be entered to- gether 110 Order, book 24 form of caption of 4 cap ion of, to state truly where court was held 4 by circuit court commissioner 4 to take bills as confessed lor neg- lect to appear 11 that defendant's appearance be entered on attachment 13 to dehver a copy of bill in fifteen days 14 for absent defendants to appear . . 16 to answer cross-bill 20 of course, to amend not neces- sary, 21 of course, how entered 24 to answer on over-ruling a plea or demurrer 36 to refer exceptions to answer, if not submitted to 28 to refer second or t^d answer on old exceptions 29 to refer exceptions for scandal or impertinence 80 to expunge impertinent matter ... 34 for a further answer on submis- sion to exceptions 35 on default in answering excep- tions for insufficiency 38 to dismiss bill for want of prosecu- tion , 46 to examine witnesses before cora- pii<4sioner 47 for E^ecial conimission to examine wiuiesses . . . .' 51 to examine defendant as witness. . 55 for leave to prove exhibits at hear- ing 56 to enlarge time for examination of witnesses 59 of hearing calendar causes at term 63 to dismiss bill for default at hear- ing 68 of reference, application to expe- dite proceedings on 71 to cx>imrm commissioner's report, unless cause 79 affecting merits to be included in enrollment 70 to stay proceedings, and to show cause how obtained 82 nisi, to be orders of eight days — 85 to extend time, by whom allowed, 86 upon banks for jpayment of moneys deposited in court 88 of reference to compute amount due on mortgage 93 as to surplus on mortgage sales. . . 93 to pay costs, how enforced 100 for leave to file a bill of review, deposit i-equired on 101 several, when to be entered as one, 110 Papers, to bf* furninhed for hearing HS furnished for re-hearing U5 Parol, rule agreements between solicitors not allowed 84 Partition Suits, proofs in 121 Petitions. to be addressed to the circuit court, 4 to be presented on the day of notice 5 how to be verified 8 for a re-hearing 18 Plea, if allowed, may be replied to with- in ten days S5 over-ruled as frivolous, proceed- ings on 26 not to be held bad for certain causes 41-4-^ Pleadings, to be abbreviated for the court on the heai'ing 62 by whomtobefurnisbedonhearing 66 to be fairly written 67 Proceedings, stay of, how obtained 82 Process, when returnable 9 may be renewed, of course, if not set'ved 9 upon decrees, by whom to be sealed 80 Pro Confesso, atter service of subpoena 11 against absent defendants 16 cases to have preference on calen- dar 63 Receivers. , how appointed on creditor's bill . . lOG powers of. on creditor's bill 106 not to pay money to parties with- out order 107 to keep separate accounts 108 only one to be appointed 108 Reference. of exceptions to answer foi insuf- ficiency 28 of second and third answers on old exceptions 29 of exceptions for scandal or im- pertinence 30 proceedings and notice required . . 70 to compute amount due on mort- gage 92 as to surplus on mortgage sales . . 93 in divorce cases, how obtained. ... 96 by consent on creditor's bills 105 Register, to keep list of agents in his office. 1 to i^sue commissions to take testi- mony 48 not to file illegible papers 67 may tax costs 89 Re-Hearing for Petition 65 certificate of counsel, ecc, on ap- plication for 81 deposit on to be made in ten days 83 Replication, when to be filed 18, 45 Report, on exceptions to specify time for further answer 32 on exceptions for imper:mence, when filed 3 J on --xr-eptions, when to become absolute 3J objections to, must be made beforp > commi^ioner 10 separate when 7S order to confirm nisi 7U 982 IKDEX TO 8TAT:E CHAKCEET UlTLES. Re-Taxation", rtjlb to be granted by court in certain cases 89 KULE, book 34 exceptions for, how taken 30 when report on to be received — 31 order to expunge 34 when report on to be final 34 to be annexed to commission 53 nisi, when to take effect '. — 85 to be served in creditor's suits 105 Seoubity, to be given by non-residents before billfiled 6 required of s{>ecial guardians 94 required on bill of review 101 Separation, reference to take proof on bill for 96 not granted of course, in any case. 98 Service, may be on agent in certain cases. . 3 by putting ill post office 2 not required when defendant has not appeared 3 when on agent, double time re- quired 3 of subpcBna,howmade 10 Several Orders, when to be entered as one 110 Solicitors, to have agents in each circuit 1 to verify bills of costs before taxa- tion 90 , special motion 61 Sttbmissiox. to answer exceptions S7 of causes, how made 69 SUBP(ENA, to contain names of all the de- fendants 10 how to be served 10 for witnesses to specify place of appearance 57 SUBSTAKCE. of oath to be stated in jurat 8 Summons, time of service required on 70 to be served on incumbrancers who have filed claims 93 Supplemental Bill, ' need not set forth original unless, etc 44 Surplus, on sales, dLstribution, how made . . 93 Statement, rule in bill of revivor and supplemental 44 Stat, of proceedings, how obtained 83 Taxation, of costs, by whom 89 of costs, regulated 50 Testimony, when and how taken, etc 47 to be retnrned and filed before hearing 58 before commissioner, to be taken and preserved 75 Term, notice of hearing to be for first day 64 Time, for service on agent, etc 3 when process made returnable ... 9 for entering Appearance 11 when to plead, answer, or demur,. 11 when complainant must deliver copy of bill 14 for taking testini!»ny 47 when proofs to be closed , 47 for sei-ving copies of interroga- tories 50 for suppressing depositions 54 for filiog depositions . . . '. 5^ to enlarge time 59 for service of notice of hearing 61 for filing notes of issue 64 for service of commissioner's sum mons .* 70 for proceedings in reference 71 on rules and orders, how computed 85 may be extended in all cases 86 Witnesses, examination of before commis- sioner 47 out of State to be examined on in- terrogatories 50 order to examine defendants 55 the court may call either party to testify in certain cases .. 55 not compelled to travel over forflf^ miles 57 subpoenas to compel attendance of 57 how examined on reference 75 Writing, submissions to be in 69 agreements to be in 84 Writ, when returnable 68 INDEX TO PRECEDENTS. ABATEMENT AND REVIVOR, affidavit for revivor of siiit, 810. petition to revive by representatives of deceased complaiuant, 810. plea in abatement to jurisdiction of court, 757. ABBREVIATION OF PLEADINGS, 788. ABSENT, CONCEALED AND NON-RESIDENT DEFENDANTS, affidavit for publication where defendant is a non-resident, 743. where defendant resides in this State, but is absent therefrom or is con- cealed, 743. by printer and of publication of notice, 744. of defendant's non-appearance, 745. order of publication for. 743. order taking bill as confessed, and directing a reference after publication of notice of order, 745. AFFIDAVIT, general form, 804. of signature to infant's petition, 740. of publication, where defendant is a non-resident, 742, publication, where defendant reside in this state, but is absent therefrom or from place of residence, or is concealed, 743. of printer and of publication of notice, 744. of defendant's non-appearance, 745. of non delivery of bill, 747. of justification by sureties in bond for costs, 753. of the defendant that the demuirer in U. S. court is not interposed for delay, 756. to procure dismissal of bill for want of prosecution, 772. to-put complainant to his election. 774. to obtain order for examination of witness de bene esse, 777. of service of 60-day notice to take testimony, 779. to obtain an order for an interpreter, 780. of service of notice and petition to examine witnesses, 784. of service of notice of motion, 803. to obtain a ne exeat, 807. ^ for revivor of suit, 810. > ' of regularity, 825. of service of order to pay i?osts, and of demand of payment of bill as taxed, 835. of solicitor that costs as taxed nave not been paid, 835. AMENDMENT, to bill, 769. ANSWER, commencement of, 761. conclusions, 761. > introduction to, 761. swearing and Signing, '?32. order to take answer without oath or signature, 762. petition to amend answei", 773. order to amend, 774. petition by defendant for leave to amend, 773. short form of, 763. titles to, 760. benefit of demurrer, 763. by infant, 761. APPEAL TO SUPREME COURT, bond on, 802. claim of, 801. notice of, 801. APPEARANCE. mode of entering, 738, notice of entiy, 739. process for, 736. order for ajDpearance and copy of bill, 738. of infants, 740. ATTACHMENT, 737. ^ . r q« order to show cause why should not issue for non-payment of money, o35. 9&4 index to peecedbnts. Sills, constituent parts of, 727. sweaiing and signing, 733. [see various titles]^ 733. special prayers of, 721, order taKing as confessed for want of a]C>pearance, 731. order taking as confessed after publication, 745. order to amend after demurrer, 767. amendment to, 769. order allowing dismissal, 769. aflSdavit by defendant to dismiss for want of prosecution, 773. notice of motion for, 773. order for, 773. dismissal at hearing, 791. BILL IN AID Oi'' EXECUTION TO REMOVE FRAUDULENT CONVEYANCE, 880. BILL FOR SPECIFIC PERFORMANCE, 830. BILL TO REDEEM A MORTGAGE [See Other Titles], 887. BOND, for costs by non-residents, 750. notice of filing bond for costs, 751. notice of excepting to, 751. afSdavit of justifloation, 762. on appeal, 802. COMMITMENT. (See Contempt.) COSTS, petition for security for. 749. order for security for,/750. taxed hill of, 831. execution for. ca. fa., 796. , for performance of speciflc duty, 796. CONTEMPT, afadavit of service of order to pay costs, 835. of solicitor that costs are unpaid, 835. order to show cause why attachment should not issue, 835. CREDITORS' BILLS, 817. (JEOSS BILL, 816. notice of motion for order to stay proceeding in original bill, 816. order to staj'j 817. order that original and cross bills be heard together, 817. DECREE, general form of, 791. by consent, 794. by default, 794. of foreclosure and order of sale, 823, for deficiency and execution, 826. allowing lien and for sale of premises. 829. for divorce a vinculo, pro confesso, with custody of minor children, 834. petition to rectify, before entry, 791. before enrolment, 792. after enrolment, 793. certificate of counsel, 792. order to stay proceedings on filing petition to rehear, 793. retaining bill with liberty to bring an action at law, 790. execution of decree, 796. DEMURRER, , general, to the whole bill for want of equity, 753. to part of bill only, 753. for want of parties, 753. for multifariousness, 753 coupled with an answer, 754. general form of, with plea and answer, 754. to a plea or bill in U. S. court, 755. to supplemental bill. 813. certificate of counsel, 756. affidavit of defendant that the demurrer in U. S. court is not for delay, 756. DISCOVERY, BILL OP, 815. ' DEPOSITIONS, Notice of motion to suppress, 789. See Witness. DISCLAIMER, 764. DISMISSAL OF BILL, at hearing, 791 INDEX TO PKJiCEDENIS. 985 DIVORCE, bill of. 832. limited bill of, 833. decree of, 834. ELECTIOIJ, aOldavit to put complainant to, 774. notice of motion, 774. order for, 775. EXCEPTIONS, to bill, for scandal and impertinence, 748. to answer, for insufficiency, 766. for scandal and impertinence, 763. to report, 7i8. order of reference when defendant does and does not submit to, 76)5, 766. order to expunge scandal, etc., on submission to exceptions, 767. EXECUTION. See Costs. ISSUE OF FACT. Order directing trial by a jury, 797. FOBECLOSURE, bill of, 820. decree. 833. atTftdavit of regularity. 825. petition for decree for deficiency, 825. decree for, 826. FURTHER DIRECTIONS, notice of hearing for, 800. ' GUARDIAN AD LITEM See Tswastb. HEARING, notice of, 787. note of issue, 787. INFANTS. petition by. for appointment of guardian ad litem, 740. by relative, 741. by complainant, 741. order appointing guardian ad litem, 741, 742. , order appointing next friend, 830. plea of infancy, 758. answer by (See Answer), 760, 761. petition for order to sell real estate, 831. IN FORMA PAUPERIS, petition for leave to sue, 803. special jurat, 804. certificate. 804. order for, 804. INJU.'^OTION Preliminary, 805. perpetual, 806. order, 805. INTERPLEADER, bUl of, 815. INTERPRETER, affidavit to obtain order for, 780. order for, 780. oath of, 781. INTERROGATORIES, to be annexed to commission, 784. JURAT, 804. JUDGMENT CREDITORS' BILLS, 817. LETTERS ROGATORY, 786. IIS PENDENS, 735. MARRIED WOMEN, mechanic's lien, bill for, 827. notice of claim, 827. decree, 829. MORTGAGE FORECLOSURE. See Fokeciosube. MOTION, 803. notice of, 803. afiidavit of service, 803. 124 986 INDEX TO ^BECEDENXS. NE EXEAT, 807. affidavit for, 807. NEXT FEIEND. See Infant. , KISI OEDEE, 795. NOTE OF ISSUE, 787. NOTICE, for filing bond for costs, 751. of excepting to bond for costs, 751. of motion for the payment of money into court upon admissions, 771. of motion to dismiss bill for want of procecution, 772. of motion for order that complainant elect, 774. of intention to examine witnesses in open court, 777. of examinaxion of witnesses de bene esse, 778. i of order to produce witnesses, 779. of the examination of witnesses before a commissioner, 779. to commissioner to return proofs, 7»2. of presentation of petition to examine witnesses, 783. of motion to suppress deposition, 785, 789. of hearing, 787. of a sale by a circuit court commlosioner, 797. of hearing for further directions upon commissioner's general report, 800, of motion, 803. of motion for order of reference to appoint a receiver, 809. of motion for order to stay proceedings in original suit, 816. of claim of mechanic's lien, 827. OATH, of interpreter to answer of foreigner, 781. See Oaths to various bills, 734, 735. OEDEE, general form of, 795. appointing guardian ad litem on petition of infant, 741. for appointment of guardian ad litem on petition by complainant, 743. publication for absent, concealed, or non-resident defendant. 743. taking bill as confessed, and directing a reference after publication of notice of order to appear, 745. dismissing suit for non-delivery of a copy of bill, 747. for production of a paper by complainant, T49. for security for costs, 750. directing plea to stand for answer, 760. ' for answer on submission to exceptions, 765. of reference when defendant does not submit to answer exceptions, 766. to expunge scandal and impertinence on submission to exceptions, 767. for leave to amend bill after general demurrer, 767. for leave to withdraw replication and amend bill, 768. allowing complainant to dismiss bill, 769. for production of papers, 770. to pay money into court, 771. to dismiss bill for want of prosecution, 773. that complainant elect, 775. to examine witnesses de bene esse, 778. to produce witnesses under rule 47, 778. for interpreter, 780. to enlarge time for examination of witnesses, 782. closing proofs, 782. for commission to examine witnesses within the State, 784. for cause to stand over to add parties, 789. for cause to stand over to supply proofs, 789. to stay proceedings on filing a petition o£ re-hearing, 793. for leave to file a supplemental bill in the nature of a bill of review, 794. nisi for confirmation of report, 795. directing an issue of tact to be tried by a juiy, 797. retaining bill with liberty to bring an action at law, 790. confirming report of sale. 798. to confirm report so far as not excepted to, 799. to prosecute tn forma pauperis, 804, for temporary injunction. 805. to stay proceedings in original suit, 817. that original and cross bill be heard together, 817. appointing next friend for infant, 830. for precept to commit for non-payment of costs ordered to be taxed, 836. PARTIES, order for cause to stand over, 789. PAYMENT INTO COURT, notice of motion tor, 771, order for, 771. IlfDEX TO PltECEDENTS. 987 PETITION, by infant for appointment of guardian ad litem, 740. by a relative of infant, 741. by complainant, 741. for procmction aid inspection of papers in behalf of defendant, 748. for security for costs, 749. for leave to withdraw replication and amend bill, 768. for production and inspection of papers, 760. by defendant for leavu to amend his answer, 773. for enlarginjg time for examining witnesses, 781. for a commission to examine witnesses within this State, 783. to rectify decree before entering, '.i)l. for a re-hearing after entering and before eni-olment, 792. to rectify decree after enrolment, 793. for leave to sue in forma pauperis^ 8(f3. to revive by representatives of deceased complainant, 810. for leave to file supplemental bill, 812. ior decree of deficiency and execution, 825. for appointment of next friend, 830. for order to sell real estate, 831. PLEA, 756. to part and answer to residue of bill, 757. in abatement to jurisdiction of court, 757. of statute of limitations, 758. of infancy to bill exhibited without aprochdn ami, 758. of coverture of plaintiff, 758. that defendant has no interest in subject of suit, 759, that defendant never was administrator, 759. replication to, 759. to supplemental bill, 814. order that plea stand for answer, 760. PRAYERS OF BILLS, 731. PRODUCTION OF PAPERS, petition for, 769. order tor, 770. RECEIVER, - notice of motion for order of reference to appoint, 809. RE-HEARING. See Decree. REPLICATION, 776. to plea, 759. petition for leave to withdraw and amend, 768. order for leave to withdraw and amend bill, 768. REPORT, order confirming, 799. of commissioner, 36, REVIVOR, biUpf, 812. REVIEW, bill of for error of law, etc., 815. SALE, by a commissioner, 797. order confirming report, 798. SCANDAL AND IMPERTINENCE, (See Exceptions), 748, 763. SECURITY FOR COSTS. See Costs. SPECIFIC PERFORMANCE 820. SUBMISSION OF CAUSE, 789. SUBPOENA TO APPEAR, 736. SUPPLEMENTAL BILL, 813. demurrer to, 813. petition for leave to file, 812. plea to, 814. SUPPLEMENTAL BILL IN THE NATURE OF A BILL OF REVIEW, order for leave to file, 794. WITNESS, affidavit for ordpr to examine de bene esse, 777. order to examine. 778. notice of examination. 778. notice of intention to examine in open court, 778, order to produce under rule 47, 778. notice of order, 779. 988 ISTDEX 10 JfaECEBENTS. 'WimBss. Continued. afiadavit of tiOday notice, 779; notice of examination before commifisioner, 770, petition to enlarge time, 781. ' order for, 788. order for closing proofs, 783. notice to commissioner to return proofs, 782. order for cause to stand over to supply proofs, 789. petition for commission to examine out of State, 783, notice of, 7S.3. affidavit of service, 784. order for, 784. - interrogatories, 784. notice of motion to suppre£{S deposition, 785. WRIT, of assistance, 796. of execution for costs, 79S.