mara^aU lEquttg (CaUcrtton ^' (dtft of IE. 31. iHat0l|aU. ffi-iC-l. ia94 CORNELL UNIVERSITY LIBRARY 3 1924 085 501 108 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924085501108 PRECEDENTS AND NOTES OF PRACTICE, COURT OF CHANCERY, OW NB3-W JIGRSKY^, TOGRTHEB WITH THE RULES OF THE COURT OF CHANCERY, THE PRE- ROGATIVE COURT, AND THE COURT OF APPEALS. A Digest of the Rulings of these Courts;, in Matters of Pleading and Practice. BY STACY Gr. POTTS, COUNSELLOB AT LAW. EEVISED AND ENLARGED BY POTTS & LINN, C0DNSEM.OBS AT LAW. ,^' NEW YORK: PUBLISHED BY JAS. G. BET ANT, LAW BOOK-SELLER. No. Ill East 15th Street, 1872. Entered according to Act of Congress, in the year 1872, By Joseph 0. Potts and John Linn, In the OfBce of the Librarian of Congress at "Washington. Daily Abtbrtiber Stbam Pkint, Newark. N. J. GOVERNORS AND CHANCELLORS, UNDER THE FIRST CONSTITUTION. ♦»♦ access. exit. 1776. William Litingston 1790 1791. "William Paterson 1793 1794. EicHAHD Howell 1801 1801. Joseph Bloomfield 1802 1802. John Lambert (President of Council) 1803 1803. Joseph Bloomfield 1812 1812. Aaron Ogden 1813 1813. William S. Psnnington 1815 1815. Mahlon Diokerson 1817 1817. -Isaac H. Williamson 1829 1829. Peter D. Vroom* 1832 1832. Samuel L. Southard 1833 1833. Blias p. Seeley • 1833 1833. Pbtee D. Vroom 1836 1836. Philemon Dickebson : 1837 1837. William Pennington 1843 1843. Daniel Haines 1844 CHANCELLORS, UNDER THE PRESENT CONSTITUTION. 1845. Oliver S. Halsted 1852 1852. Benjamin Williamson 1859 1859. Henry W. Gbbbn 1866 1866. Abraham 0. Zabriskie VICE-CHANCELLOR, Amzi Dodd. * The printed reports comnienoe under tlie administration of Chancellor Yroom, in 1830. JUDGES OF THE CO0ET OF EKK0E8 AND APPEALS. JUDGES OF THE COURT OF ERRORS AND APPEALS. JUDGES EX. OFFICIO. Abraham 0. Zabbiskie, Chancellor. Mercee Beasley, Chief Justice. Joseph D. Bedle, Associate Justice. Vancleve Dalrimple, George S. Woodhull, David A. Depue, Bennett Van Syckel, Edward "W. Scudder, JUBGBS SPEGIALLT APPOINTED. Edmund L. B. Wales, John Clement, James L. Ogden, Charles S. Olden, Francis S. Latheop. Amzi Dodd. CONTENTS. XIII, XIV, XVII. XVIII. XIX. XX. XXIII. XXIV, XXV. XXVI. CONTENTS RULES OF THE COURT OF CHANCERY. PAGE. I. Of Pleading 9 II. Of Clerk 10 III. Of Masters and Examiners 11 IV. Of Process 12 V. Of Affidavits 13 VI. Of Absent Defendants 14 VII. Of Attachment for Contempt 16 VIII. Of Infant Defendants, and Suits on Mortgages 15 \ix. Of Injunctions 20 X. Of Amendments 23 XI. Of Exceptions 24 XII. Of Interrogatories 26 Of Examinations 26 Of Rules and Orders 31 XV. Of Setting down Causes ,etc 34 XVI. Of The Order of Business 36 Of Costs 36 Of Decrees 38 Of Rehearing 38 Of Appeals 39 XXI. Of Idiots, Lunatics and Habitual Drunkards 40 XXII. Of Guardian's Sale of Infants' or Lunatics' Estate 40 Of Partition 46 Of Cases Submitted 47 Of Terms of Court 48 Of Execution 48 XXVII. Of Printing Evidence (See xxxviii) 49 CONTENTS. XXVIII. Of Orders to Extend Time 49 XXIX. Of Appointment of Trustees 49 XXX. Of Notices of Motions 50 XXXI. Of Special Matters 50 XXXII. Of Joinder of Complainants 52 XXXIII. Of Application for Money in Court 52 XXXIV. Of Suits for Divorce 54 XXXV. Of Suits where Chancellor is Interested 55 XXXVI. Of Fees of Masters 55 XXXVII. Of Applications to be made a Party 56 XXXVIII. Of Printing Evidence 56 XXXIX. Of Affidavits to answer by Absent Defendants 57 XL. Of Intferest on Money in Court 57 xLi. Of Surplus Money in Foreclosure Suits 57 XLii. Of The Vice Chancellor _. 58 Additional Rules 63 Annuity Table 64 RULES OF THE PREROGATIVE COURT. I. Of Proctors 65 II. Of Appeal 65 III. Of Applications for Divisions of Real Estate 67 IV. Of The Register and Surrogate 68 V. Of Printing Evidence on Appeal 69 RULES OF THE COURT OF ERRORS AND APPEALS. I. Of The Order of Business 70 II. Of Setting down Causes 71 m. Of The Hearing 72 IV. Of The State of the Case 73 V. Of The Petition of Appeal and Deposit 73 VI. Of The Appeal 74 CONTENTS. VII. Of Writs of Error 75 VIII. Of Diminution .' 76 IX. Of Printing and Serving Copy of Case 76 X. Of Orders of Course 77 XI. Of Submissions 77 XII. Of The Remittitur 77 xiii. Of The Members of the Court 77 XIV. Of Special Motions 78 XV. Of Attorneys and Solicitors 78 XVI. Of Decisions by the Court 78 XVII. Of Affidavits 79 XVIII. Of The Printing of Reasons assigned ■ . . . . 79 XIX. Of The Rules 80 XX. Of Printed Briefs. . . ; 80 XXI. Of The Hour of Meeting 80 XXII. Of The Prerogative Court 80 XXIII. Of Briefs, when Furnished 80 XXIV. Of Limitation of Hearing 81 XXV. Of Points to be Furnished 81 XXVI. Of Adjournments 81 PRECEDENTS. PAGE. PART I. — Forms in a Simple Foreclosure Suit 83 "Writ of Assistance 97 PART n. — Forms in a Complicated Foreclosure Suit 105 Short Form of BUI to Foreclose 136 PART in. — Forms of Proceeding, from Reference to Decree, in in a Mortgage case, where the money secured was not all due at the time of the first decree 141 Forms of Demurrers, Pleas and Answers, and of Proceedings incident to Answers &c 152 Forms in relation to Depositions, Interrogatories &C.167 OoirrEi^TS. PART III. — Rules and Orders, not given in other parts of the Work 173 Forms of Decrees in certain Cases 185 Forms of "Writs not given Elsewhere 196 Forms of Appeal 201 PART IV. — I. Proceedings in case of Injunctions 204 II. Proceedings on application for Receivers.. . . .214 III. Proceedings on application for Guardians 218 IT. Proceedings to obtain Surplus Money 234 V. Proceedings in Sdre Facias 239 VI. Proceedings in Feigned Issues 245 VII. Proceedings in Lunacy &c 249 VIII. Proceedings in Divorce 262 IX. Proceedings in Partition 275 X. Proceedings fbr sale of Dower and Curtesy .. .308 XI. Proceedings against Corporations 312 XII. General Schedule of Costs 325 DIGEST OF EQUITY DECISIONS. On Pleading 332 On Practice 374 RULES OF THE Court of Chancery, OF NEW JERSEY. I...OP PLEADINGS. 1. All bills and answers, and other proceedings intended to be filed, shall be fairly and legibly written; and erery bill shall be signed by counsel before it is filed. 2. No bill or other pleading shall recite records, deeds, or other documents in full, but only so much and such parts thereof as may be necessary for the clear exhibition of the case, or the construction of the document, omitting all parts not relevant to the relief sought, . or the defence set up ; and no pleading shall repeat documents or parts of documents set forth in any previous pleading, but if the same are not fully or accurately set forth, may add such parts as shall be necessary to complete or correct the same. 3. No foreclosure bill shall set forth the bond or mortgage at length, but only those parts thereof upon which the relief sought is ' founded, including the date, names of parties, consideration, words of conveyance, description of premises, the words limiting the estate, and the condition in full; and no costs shall be taxed or allowed for any bill drawn in palpable violation of this rule. 2 10 EULES OF THE II...OP THE CLERK. 4. The clerk of the court shall, on or before the first day of Janu- ary, annually, make out a statement of the funds in his hands, where the same are deposited, or how invested, and the times when the same was received, and the suit or matter in which the same was paid in, in order that the Chancellor may give such directions con- cerning the same as he may deem advisable. 5. That all moneys paid into the court shall be deposited forth- with in "the Trenton Banking Company," to the credit of " the Court of Chancery of the State of New Jersey," unless otherwise specially ordered by the court ; and no moneys on deposit under this, or any special order of the court shall be drawn, except by a draft or check of the clerk, endorsed by the Chancellor ; and whenever any money is paid into court, it shall be the duty of the clerk, immediately upon the receipt thereof, to give notice of the same to the Chancellor. 6. The clerk of this court shall not practice, either as a solicitor or as a counselor, in the court. 7. No file of the court shall be suffered by the clerk to be taken out of his office, without the order of the court for that purpose previously obtained. 8. In future the clerk shall, in the copies of all pleadings, deposi- tions, and other proceedings filed or remaining as of record in his office, made out by him to be used in this court, leave a margin of not Jess than one inch, and shall distinctly mark and set down in the margin the numbers of the pages in the original pleadings, deposi- tions, and other proceedings, so that the copy may correspond with the original in the paging thereof. 9. The solicitor, in every case in this court, shall be answerable to the officers thereof for all lawful fees which shall become due to them COUET OF CHANCERY. 11 in the conducting the suit (execution fees excepted), and the clerk of the court is authorized to receive from the solicitors all such fees as shall become due to the Chancellor ; and, in order to enforce the punctual payment thereof by the solicitors, tlie clerk shall forbear to enter, or suffer to be entered or filed in his office, any rule or rules, paper or papers, until the solicitor moving the same shall have paid up all fees due from him to the Chancellor, and also to the clerk him- self, on the last day of the term next preceding the term in which such entry or filing is moved to be made. 10. In all causes where there are proceedings subsequent to a decree final, which shaU alter or vary such decree, the same shall be enrolled by the clerk, but not otherwise. 1 1 . The clerk shall in no case issue execution for costs allowed by any' order of the court, unless by the order of the court. ■ 12. The clerk of this court shall keep in his oflSce a docket, in which he shall enter the titles of all suits brought in the court, and a memorandum of eveiy paper filed in the same, under the title of the suit, with the time of filing and the name of the solicitor of each party, and also an alphabetical index to the same; and the said docket shall be, at all proper hours, accessible to the bar. III...OF MASTERS AND EXAMINERS. .1 3. Every person who shall be appointed a master or examiner of this court shall, before he enters upon the execution of his ofBce, subscribe and take, before the Chancellor or clerk, an oath or affirma- tion impartially and justly to perform all the duties of the office, according to the best of his abilities and understanding. 14. When a matter is referred to a master of the court to examine and report upon, he shall, if notice be necessary, assign a day and 12 EULES OF THE place to hear the parties ; and the -paxtj ohtaining the reference, or who shall be ordered to procure the master's report, shall serve the adverse party, at least four days exclusive before the day assigned for the hearing, with a summons, issued by the master, requiring his attendance at such time and place, and make proof thereof to the master ; and thereupon, if the party summoned shall not appear, or good cause shall not be shown why he does not, the master may proceed ex parte; and if the party serving the summons shall not appear at the time and place, or show cause why he does not, the master may either proceed ex parte, or the party obtaining the sum- mons, and not appearing, shall lose the benefit of the reference, at the election of the other party. 15. When, by a decretal order of the court, any inquiry before a master is directed to be made in a cause, and the examination of witnesses shall be necessary to obtain the proper infomiation, such examination, if required by either party, shall, at the expense of the party requiring it, be reduced to writing by the master, in the form of depositions, and returned and filed with the report. 1(). That all references in divorce and partition, and in applications for sales of lands of infants, idiots, lunatics, and habitual drunkards, shall be made to a " special master." IV,..OE PROCESS. 17. The names of all the defendants in the same cause shall be inserted in one subpcena, unless the defendants reside in different counties, in which case the names of all those who reside in the same county shall be inserted in the same subpoena. 18. Copies of tickets served with the subpoena upon defendants shall be annexed to, and returned with the subpoena. COtiET OF OHANOEEY. 13 1 9. Eveiy execution issued shall be dii'ected to a sheriff, unless the Chancellor shall, for reasons presented to him, otherwise order. V...OF AFFIDATITS. 20. ^ copy of every affidavit intended to be used on the argu- ment of any special motion, or of any other special matter before the court of which notice shall be necessary, shall be served on the adverse party at least four days before the day of argument, or shall be taken on two days' notice, at least, of tne time and place of taking the same ; and all affidavits made use of in court shall be first filed with the clerk ; and no writ, order, or other proceeding, grounded upon an affidavit or affidavits, shall be issued, filed, or entered by the clerk, unless the affidavit or affidavits upon which it shall be grounded shall have been previously filed. 21. Affidavits and petitions duly sworn to, on which rules to show cause may be granted, if served as affidavits, may be used on the hearing of the rule to show cause. VI...OP ABSENT DEPENDANTS. 22. In a-ll suits against an: absent defendant, an order nuiy be had that said defendant appear, plead, answer, or demur to the complain- ant's bill in two months from the date of the order, unless the Chan- cellor, for special reasons, shall otherwise direct. 23. In cases where husband and wife are made defendants, and he only is served with process of subpoona, the wife being out of the state, an order of publication shall be taken against her, unless an appear- ance be entered for her. 24. In lieu of pubhcation or service of the order for absent defend- ants to appear and plead, answer or demur to the bill, there shall be 14 EULES OF THE published or served a notice substantially of the form herein pre- scribed.* 25. Such notice shall be entitled in the court only, not in the cause, shall be addressed to the absent defendants by name, shall state the date of the order, the name of the complainant, and the time within which the absent defendants are required to appear and plead, answer or demur. The notice shall also state briefly, in general terms, the object of the suit, and wh}"- the persons to whom it is addressed are made defendants; and in foreclosure suits state the parties to the mortgage to be foreclosed, the date thereof, and the township and county, or incorporated city in which the lands are situate. Such notice may be in the form in the schedule hereto annexed,* or similar form adapted to the case ; and it shall be signed with the name and post-oflBce address of the solicitor of the complainant, or of the com- plainant, if he has no solicitor, and the mailing of such notice in the manner herein directed shall be service thereof. 26. The complainant or his solicitor, or his agent actually en- trusted with the management and conduct of the suit, shall, in all cases where the residence and post-ofBce address of an absent defend- ant not actually served with the notice or order to appear shall not be known, make diligent and careful inquiry therefor. Such inquiry shall, as to persons made defendants for having a judgment, attach- ment, or decree, include inquiry of his attorney or solicitor in such judgment, attachment, or decree, if residing within this state, and as to persons made defendants by reason of any mortgage or contract stated in the bill shall include inquiry of the person who made the mortgage or contract, if known and residing in this state ; and in any suit for divorce, such inquiry shall be made of the nearest relatives * See form of notice to absent Defendants, COUET OF CHAITCEEY. 15 of the defendant, not more remote than brother, residing in this state, if known ; such inquiries may be made in person or by letter, and shall state that a suit has been commenced against the person inquired for, and that the object of the inquiry is to give him notice of such suit, that he may appear and defend it. And when made by letter shall enclose a proper postage stamp for return of an answer.* 27. No decree shall be taken pro confesso against an absent defend- ant not appearing or served with process, or a copy of the order to appear or the notice prescribed by the rules, unless, in addition to the publication of such order or notice required by law, it shall appear by proof that such notice has been mailed, prepaid, addressed to him at his proper post-oflSce address, or unless it shall appear by the afiidavit of the complainant or his solicitor, or the person actually entrusted with the management and conduct of the suit, that inquiry has been made in good faith and without success for the post-ofBce address of such defendant, in the manner required by these rules, and in such other manner as the aflBant supposed would probably give information thereof if the same could be had.* VII...OJ' ATTACHMENT FOE CONTEMPT. 28. AH attachments for contempt shall have at least fifteen days exclusive between the teste and return, unless the Chancellor, upon motion or petition, shall order otherwise. And all persons in con- tempt in the same cause and in the same county shall be included in one writ of attachment. 29. When an attachment for a contempt shall be served, the defendant shall be retained in custody thereon, to answer the exigency * See form of notice to absent Defendant. 16 EULES OF THE of the writ, until the return da.y thereof, unless he shall, with one sufBciont surety at least, give bond, in the penal sura of live hundred dollars to the complainant, conditioned for his appearance on the return day of the attachment, according to the command of such writ, and that he will not depart thence without leave of the court. 30. When a defendant in attachment shall have given bond for his appearance, he shall enter his appearance with the- clerk on the return day of the writ, and give notice thereof to the adverse party. 31 . The plaintiff shall within eight days after such notice, enter a rule of course for the defendant's examination upon interrogatories touching his contempt, before one of the masters of this court, and serve a copy thereof, with a copy of the interrogatories, on the defendant iu attachment, or on his solicitor ; and in case of his neglect so to do, the court maj^ order the party to be discharged from the attachment with costs. 32. When the party attached shall attend before the master upon the interrogatories, if any questions arise in respect to the interroga- tories, they shall be settled b}' the master, and the party iittached shall, within four days after they are submitted to or settled, as afore- said, put in his examination in Avriting ; and the master shall, if required, by the adverse party so to do, report, with the interroga- tories and examination, whether, in his opinion, the examination is full and satisfactory or not. Vin,..OP INFANT DEFENDANTS AND SUITS ON MORTGAGES. 33. l^'-oi" the purpose of having a guardian appomted for an infant to answer and defend a suit, a petition may be presented by the infant, if abdve the age of fourteen years, or if under that age, by COUKT OF CHANCEKY. IT his father, or some other friend in his behalf, praying such appoint- ment ; which petition shall be accompanied with an agreement ex- pressing the assent of the person petitioned for to accept of the appointment, and also with an affidavit or affidavits that the petition, and agreement were duly signed, and verifying the age of the infant. 34. When a bill is filed against an infant, or when, upon an abate- ment, any infant shall, by order of the court, be made defendant, and no application shall be made on his behalf, within four days next after the day of appearance specified in the subpoena or order of publication, for the appointment of a guardian, the Chancellor may, on an application on behalf of the complainant, assign a guardian for the infant, the same as if ho had been brought into court for that pui-pose, or make such other order touching the same as may appear most proper and advisable ; but fifteen days' notice of such applica- tion must be be given to the infant, if of the age of fourteen 3'cars and resident within this state, or, if under that age or not a resident in this state, to his guardian, appointed by the Orphans Court, if any there be, and if no such guardian, to the father of such infant, or if no father, then to the mother; provided such guardian, father, or mother be resident within this state ; which notice may be served at the time of the service of the subpoena or at any time after. 35. Ill suits for the satisfaction of a mortgage, when an applica- tion shall be made for the appointment of a guaidian for an infant defendant, as provided for in the last preceding rule, or when it shall appear by afBdavit, to the satisfaction of the Chancellor, that notice cannot be served, as mentioned in that rule, the Chancellor may, on the application of the complainant, appoint the clerk of the court guardian ad litem for such infant, whose duty it shall bo, if no appli- cation shall be made on behalf of the infant for the appointment of a 18 ETJLES OF THE guardian within the time allowed by law for such infant to answer, plead, or demur to the bill, to enter an appearance for the infant to the suit ; after which the complainant may, if the suit is against the infant alone, or the bill shall have been ordered to be taken pro confesso against the other defendant or defendants, upon filing of the consent in writing of such other defendant or defendants, or his or their solicitor therefor, take an order to refer the cause to, a master to ascertain the truth of the allegation of the complainant's bill, and to take an account of what is due upon the complainant's mortgage (if anything), and also upon any other encumbrance which it may be necessary to ascertain the amount of, and if more encumbrances than one, to report their several priorities ; and the complainant and everj'' other person setting up an encumbrance before the master, affecting the estate or interest of such infant, shall prove his demand before the master ; and the master may, if he thinks proper so to do, examine the complainant, or other person setting up such demand, on oath or affirmation, to ascertain the truth thereof, and shall report the proof to the court, and also such examination, if any, and shall also Squire and report whether, under the circumstances of the case, a sale of the whole, or a part only, of the mortgaged premises is necessary to be made, and any other special matter which the master inay deem proper for the benefit of the infant; and, if no exception to said master's report shall be filed within four days' after the filing of said report, the complainant shall, without further notice or setting down such cause for hearing, be entitled to a final decree. 36. In ^'ly suit for the foreclosure and sale of mortgaged premises, in which an appearance shall have been entered by any defendant and no plea, answer, or demurrer shall have been filed, an execution may issue after the final decree shall have been on file two months. COCET OF CHANCEKY. 19 unless the defendant shall enter an order within said two months, which shall be a rule of course extending the time for issuing the same to a period not more than one month from that date ; provided nothing in this rule shall restrain the issuing such execution for more than six months from the return of the process to answer in such suit. 37. No order in the proceedings for foreclosure and sale under mortgages shall be filed by the clerk until it is actually signed, and no order shall be filed nunc jpro tunc without a special order for the purpose ; and all proceedings under an order not actually signed shall be null and void. 38. In foreclosure suits, no decree shall be made for the payment of the deficiency of the proceeds of sale to satisfy the mortgage debt, by any defendant legally or equitably liable therefor, unless such decree be specifically prayed in the bill, and a ticket or notice, stating that such relief is sought against him, be served on such defendant with the subpoena, or in case of absent defendants served with the order to appear, or if the order be advertised, mailed with a copy of such order prepaid, directed to such defendant, at the post- office nearest his residence, or at which he usually receives his letters, or be served or published in such manner as the Chancellor shall direct. 39. And on any execution issued for such deficiency against several defendants, some liable after the others, the order in which they are liable as between themselves shall be endorsed ; and if paid by a defendant secondarily liable, ho shall have the right to use the decree and execution to compel the payment by parties liable before him. 20 EULES OF THE IX.^OF INJUNCTIONS. 40. In the absence of the Chancellor from the city of Trenton, a petition addressed to him for an injunction may be presented to such master of this court, residing at the city of Trenton, as the Chancellor shall for that purpose by order designate, and the master shall exercise the power of reporting upon the propriety of issuing the injunction prayed for ; and in case the master shall report that an injunction ought to issue, it shall be issued by the clerk, on filing with him the said petition and report; but the defendant .may, on eight days' notice, move the Chancellor for the dissolution of the said injunction. 41. Wnere an application is made for an injunction, and the Chancellor directs an order to be entered requiring the defendants to show cause, on a particular day, why the injunction should not be granted, it shall be the duty of the complainant to serve 3uch order on the defendant, together with a copy of the bill and affidavits annexed, at least six days previous to the day fixed for the hearing, unless the order shall otherwise direct; such order shall specify the manner of service, and on which of the defendants, if there shall be more than one ; and on the hearing of such motion, the defendant may read his answer to the bill, and also affidavits in reply to affidavits annexed" to the bill ; but no other affidavits shall be read on either side, unless, for special reasons, the Chancellor, on application at the time ap- i pointed for the hearing, shall by order otherwise direct ; and when further affidavits are taken, under an order for the purpose, they shall be taken on two days' notice to the opposite party. 42. No motion to dissolve an injunction before answer shall be entertained, except on the ground of want of equity in the bill, unless the defendant shall show good cause why an answer hath not COUE* OF CHANCEEY. 21 been put in, and where no answer has been put in, and the Chancellor shall allow the motion to bo heard on affidavits on the part of tlie defendant, the adverse party shall be permitted to rebut them by counter affidavits ; but such affidavits, on both sides, shall be taken on two days' notice. 43, "Where a motion is made to dissolve an injunction upon the answer, the defendant shall rely on his answer, and on the affidavits annexed thereto, in reply to affidavits annexed to the bill ; and no affidavits, except those annexed to the bill, shall be road on such motion on behalf of the complaints, except in reply to new matter set up in the answer, and upon which the defendant shall in any manner rely for a dissolution of the injunction. 44, Whenever a cause shall be at issue in any court of common law, no injunction shall issue before answer filed to stay the trial of the cause, unless applied for and actually taken out twenty daj^s previous to the sitting of the court in the county in which the trial is to be had, except some special cause shall be shown to the Chancellor, or to the master authorized to report upon the propriety of issuing the injunction prayed for, and it shall be made to appear that the injunc- tion is applied for within a reasonable time after the . complainant became apprised of the circumstances on which his application is founded ; and whenever an injunction shall be granted to stay pro- ceedings at law within tfyenty days previous to the sitting of the court as aforesaid, it shall be upon condition that the party pay the costs at law of the term at which the cause was noticed, which have accrued up to the time of the service of the injunction. 45, No injunction shall be allowed to stay the proceedings in an ejectment suit, after issue joined thereon, unless the complainant shall give a bond, with sufficient sureties, in the penalty of at least ^2 ETJLES 01" THE double the rent of the premises for two years, if the premises are leased at a fixed rent, or if not leased then in such sum as the Chan- cellor or master shall direct, conditioned for the payment to the party against whom such injunction is granted of all such damages and costs as may be awarded to him, either at law, or in this court, in case of a decision against the party obtaining such injunction. 46. In cases where an injunction is granted ex parte, the Chancellor or master may, at his discretion, take from the complainant a bond to the party enjoined, in such sum as may be deemed sufficient, either with or without sureties, conditioned to pay to the party enjoined such damages as he may sustain by reason ,of the injunctipn. if the court shall e¥«ilHja41y>>4eey«H)ha**ttt(ve«u^la!Hiasit-'»aa^^ e«ilitl«dX&«e«eb4BJ«neti0n-; such damages to be ascertained in such manner as the Chancellor shall direct. 47. No injunction shall issue after answer filed, without giving eight days' notice of the application therefor, unless it shall be made to appear to the Chancellor or master that the circumstances of the case are such as to make it proper to dispense with such notice. 48. In 3-11 cases where an application ism ade for an injunction to the Chancellor or to a master, and the same is denied, an endorse- ment of the denial shall be made on the bill or petition and the said bill or petitition shall be put on the files of the court. 49. Where a writ of injunction has been issued, it shall be served within twenty days after the issuing thereof; and a return of service shall be made to the court within ten days after such service, and on failure thereof, the defendant shall be entitled to a dissolution of the COTJET OF CHANCEET. 23 injunction, unless tlie Chancellor shall, by order, give further time for the service and return of the writ. 50. Where an injunction is prayed, and the facts which are relied upon for the injunction are not within the knowledge of the complain- ant, such facts shall be verified by the oath or aflSrmation of some person who has knowledge of the facts, unless, under the peculiar circum- stances of the case, the Chaiicellor shall dispense with such additional verification. '51. No injunction shall be allowed against an incorporated com- pany, or against any individual, the effect of which is to stay the progress of any public work authorized by a law of this state, without an order first made to show cause, as provided in rule 4] ; and this rule shall not be dispensed with in any case, except by the order of the Chancellor first obtained and filed, unless such injunc- tion be granted by the Chancellor himself. X...OF AMENDMENTS. 52. The complainant may amend his bill of course, and without motion or rule, at any time before answer, plea, or demurrer filed and without costs. 53. If the defendant put in an answer, which is excepted to as insufficient, and the defendant submits to answer further, or the answer shall, on reference, be reported insufiicient, in either case the complainant may amend his bill of course, and without costs, and the defendant shall answer the amended bill and exceptions together; and if the defendant shall plead or demur, and the plea or demurrer shall be overruled, the complainant may, before filing an answer, amend his bill of course, and without costs. 54. In all cases not before mentioned, in which the defendant 24: EULES OP THE shall have answered the complainant's bill, and the complainant shall ohtain leave to amend, if such amendment require a new or further answer, then the complainant shall pay costs, to he taxed. 55. In all cases where the defendant's appearance has been en- tered, and he hath procured a copy of the hill, and the complainant is allowed to amend without costs, he shall furnish the defendant with a certified copy of the amended bill, or amend the defendant's copy gratis. 56. If the defendant demur to the hill for want of parties, or other defect which does not go to the equity of the whole bill, the com- plainant may amend of course at any time before the next term after filing the demurrer, upon payment of costs, to he taxed. 57. When a complainant shall amend his bill, which has been sworn to, no interlineation, erasure, or other alteration shall be made in the original bill on file ; but the amended bill shall be engrossed anew, sworn to and filed, and anexed to the original bill, unless the court shall otherwise order. XI...OF EXCEPTIONS. 58. When a complainant shall take exceptions to an answer for impertinence or scandal, he may, at the same time, except to the answer for insuflSciency ; and all exceptions to an answer for imper- tinence, scandal, or insufficiency shall be referred, by one rule, to the same master ; and after a reference of the answer for impertinence or scandal, the complainant shall not be allowed to refer the answer for insufficiency ; nor after a reference for insufficiency, shall there be a reference of the same answer for impertinence or scandal. 59. -^ rule of course to refer exceptions to an answer for insuffi- ciency shall not be entered until six days after service of a copy of COUET OF CHANCEET. 25 the exceptions on the defendant or his solicitor ; and if the defendant shall, within that time, submit to answer the exceptions, he shall give notice thereof to the complainant's solicitor, and pay the costs of the exceptions; and in that case, if the complainant shall, within six days after such notice, or within such further time as the court shall allow, amend his bill and the defendant's copy, the defendant shall answer the exceptions and amendments at the same time. 60. When a defendant shall have given notice that he submits to answer the exceptions, he shall file a second or further answer within twenty days after the complainant has amended his bill and the defendant's copy ; or if the complainant shall not amend his bill, then, within twenty days after receiving a copy of the exceptions ; or on failure thereof, the complainant's bill shall be taken as con- fessed, and such proceedings Ijad thereon as if the first original answer had not been filed. 61. When an answer shall be excepted to for insufficiency and for impertinence and scandal, or for insufficiency and impertinence or scandal, if the defendant submits to answer the exceptions for insufficiency, but does not at the same time give notice that he consents to have the parts of the answer excepted to for imperti- nence or scandal expunged, the complainant may immediately and of course eater a rule to refer the exceptions for impertinence or scan- dal to a master. 62. Exceptions to any pleading, or other matter pending before the court for scandal or impertinence, shall be taken in the same manner as exceptions to an answer for insufficiency, and may be submitted to in like manner, and within the same time. If they are not submitted to, the party excepting shall refer them in the same manner, or they shall be considered as abandoned. 3 26 RULES OF THE XII...OF INTEREOGATORIES. 63. If the defendant intend to exhibit inteiTOgatories to the com- plainant, he shall file the same, and serve a copy thereof within fifteen days after filing his answer, and not after, without leave of the Chancellor ; and the complainant shall answer the said interrog- atories within thirty days after service thereof, unless the Chancellor shall allow further time for answering the same : and if the complain- ant except to the interrogatories, he shall file his exceptions within ten days after service of the interrogatories, and enter a rule of course with the clerk to refer them to a master, who shall decide and report thereon within fifteen days after they are filed ; but an appeal from such report shall be allowed to the Chancellor, if taken within ten days after filing the master's report, and the Chancellor, whether in term time or vacation, upon ten day's notice given by either party, shall hear and determine the same ; and if the said exceptions be overruled, the complainant shall pay costs to the defendant ; but if any of the said interrogatories shall be adjudged to be improper, the defendant shall pay costs to the complainant. XIII...OP EZAMINATIONS. 64. That when any cause shall be at issue, and the interrogatories exhibited to the complainant, if any, answered, each party, the com- plainant first, and then the defendant, shall proceed to take and com- plete the testimony on his part before an examiner, by sessions con- tinued from day to day, on proper notice of the time and place of commencing the same. 65. The complainant shall commence taking testimony on his part within thirty days after issue joined, and shall conclude the same in COURT or CHANOEET. 27 thirty days, and declare to the examiner when the testimony on his part is concluded. 66. Within fifteen days after the testimony on part of the com- plainant is declared to he concluded, or after the time for taking the same has expired, if no such declaration has been made, the defend- ant shall commence taking testimony on his part, if any he has, and shall conclude the same in thirty days, and declare when the same is concluded. 67. The examiner may, at the request of the party taking testi- mony, adjourn to any day within said thirty days to any place within the county : and any examiner may take such testimony, or any part thereof, in place of the examiner before whom the same was noticed or commenced ; but only one examination shall proceed in the same cause at the same time, except on commission by interrogatories. 68. When the defendant shall declare the testimony on his part closed, or when the thirty days for taking testimony on his part shall have expired, the complainant may proceed immediately, or by adjournment, not exceeding ten days, with testimony to rebut the testimony of the defendant, or to sustain testimony on his part, im- peached or contradicted by the defendant, and the defendant may afte^^vards produce counter rebutting evidence on his part ; but such evidence shall not be continued for more than live days on each side. 69. The examiner may, at the request of either party, adjourn the examination to a day within the time limited to said party, giving precedence to the request of the party then proceeding with taking testimony ; and when such adjournment is regularly made at the time and place at or to which an examination was noticed or adjourned, no notice of the same need be given. RULES OF THE 70. If either party cannot complete his testimony wjthin such thirty days, his time may be enlarged upon motion, on notice served before the expiration of said time, for reasons verified by proof satisfactory to the Chancellor. 71. The time for taking testimony above limited shall not be extended, except by written consent or by order of the court, made upon notice. 72. No legal holiday, except Sunday, nor any day between the fifteenth d^y of July and first day of September, unless occupied in taking testimony, shall be computed as part of said limited time. 73. Every cause shall be noticed for hearing at the next term after the evidence therein is closed, provided there shall bo sufficient time to notice it at or in such term ; and no cause shall be set down for hearing on any day in term after the twentieth day. 74. The exhibits offered in any cause, except books of account in actual use, shall, upon request, be left -ivith the examiner for such reasonable time as he may prescribe, that the same may be examined by other parties, and copies made by the examiner, unless the partj- producing them will furnish such copies ; and then they may be inspected as directed by the examiner, in' the presence and custody of the party producing them ; and there» shall be paid for such copies, when made by the master, ten cents per folio, and when made by the party, four cents per folio, which shall be allowed and taxed as costs in the cause. 75. A-U depositions of witnesses before examiners shall be taken down in the first person, as spoken by the witness, and, as near as practicable, in the words of the witness ; and such depositions shall be taken down in the narrative form, and not by entering both ques- tion and answer ; except in cases where the examiner shall, from the COUET OF CIIANCEKY. 29 subject matter or the manner of the witness, determine that, in his opinion, it is necessary for the correct understanding of the evidence, or of the disposition of the witness, to take down both question and answer ; and in such case the examiner shall enter on his minutes, and sign his determination to that effect. 76. When issue shall be joined on a plea, the defendant shall begin taking testimony, and the same shall then proceed in the manner above directed ; but the times for commencing and taking the same by each party shall be one- third of the times prescribed in the above rules. 77. It shall be the duty of the examiners of this court to transmit, without any unnecessary delay, all depositions and examinations of witnesses by them ' taken in any cause pending in this court, to the clerk of the court to be filed ; and all depositions and examinations of witnesses taken in a cause by an examiner, shall be filed in the clerk's office within ten days after the examination of witnesses in the cause shall be closed : and no examination shall be filed after the expiration of the said ten days, without an order of the Chancellor directing the filing thereof 78. In order to compel the attendance of witnesses who reside in the state before the examiners of the court, for the purpose of giving evidence in a cause depending in the court, a subpoena may be issued by the clerk, upon request of any complainant or defendant, or his solicitor, with a blank for the names of the witnesses, to be filled up by the party procuring the same, as occasion may require, command- ing the attendance of the witnesses before the examiner therein named, at the time and place therein expressed : and the names of any number of witnesses may be inserted in the same subpoena. 79. When a cause is at issue, a commission for the examination of 30 RULES OF THE a witness out of this state may be applied for, either in vacation or in term time, upon affidavit stating that the witness is material, and that the party applying cannot safely proceed to a hearing of the cause without his testimony ; and upon giving five days' notice of the intended application, with the name or names of the witnesses, their residence, and the name or names, additions, and residences of such person or persons as the party applying intends to nominate as commissioner or commissioners. 80. If the party to whom notice is so given intend to join in the commission, and to name any other commissioner or commissioners, he shall give notice to the adverse party, two days before the intended application, of the name or names, additions, and residence of the person or persons whom he proposes for a commissioner or commis- sioners ; and the Chancellor shall appoint the commissioner or commissioners to execute the commission : and the party who shall first give notice of his intention to move for the commission shall sue out and forward the same ; but if he shall unreasonably delay so to. do, the other party may forward, and cause it to be executed and returned, and every order for a commission shall fix a time for its return; and it shall not be used if not returned within said time, unless the time be extended by an order for that purpose. 81 . The name of every witness to be examined by virtue of such commission shall be inserted therein, and the interrogatories to be administered to the witnesses annexed to the commission ; and copies of the interrogatories shall be furnished to the opposite party, that is to say, copies of all direct interrogatories shall bo furnished six days, and copies of the cross-interrogatories two days' before the time of submitting the same to the Chancellor for his approval ; and notice of the time and place of such submission shall be gervegi with COURT OF CHANOEKY. 31 the interrogatories, at which time and place the cross-interrogatories shall also be submitted. 82. A.H order may be taken by any defendant, at any time before the expiration of the time to close his testimony, to examine a co-defendant as a witness, upon filing an affidavit that such defendant is a material witness, and is not interested in the matter to which he is to be examined ; which order and examination shall be subject to all just exceptions, which the adverse party may be at liberty to take at the hearing of the cause. 83. No documentary evidence, which is not made an exhibit before the master, shall be read at the hearing of the cause, except records or files of this court which may be read, upon notice given before the testimony of the party giving it is closed. 84. The examiner shall number each page of the exq,mination taken by him, and also every tenth line of the same, leaving sufficient margin for the purpose ; and where more than one witness is examined, he shall annex a separate leaf to the examination, containing a list of the names of the witnesses, and a reference to the pages on which their examination respectively commences ; and no costs shall be taxed for any examination where this rule has not been strictly com- plied with. XIT...OP RULES AND ORDERS. 85. Every rule for a reference to a master, of exceptions to, a bill, answer, or to interrogatories to a complainant to be answered ; every rule for setting down for argument a plea, demurrer, or exceptions to a master's report, or a cause for hearing ; every rule to confirm a master's report nisi, or for an injunction, where a master, as aforesaid, shall report that it is proper for an injunction to issue, and every rule 32 EULES OF THE to which a parly would, according to the practice of this court, be entitled of course without showing special cause, shall be denominated a common rule, and every other rule shall be denominated a special rule. All common rules, and all rules, whether common or special, by consent of parties, (such consent being in writing, and signed by the parties or their solicitor or counsel, and filed,) may be entered, either in term time or vacation, with the clerk of the court, in a book to be by him procured and kept for that purpose ; but every common rule shall be considered as entered at the peril of the party at whose instance it is entered, and the day of entering thereof shall be noted in the said book. 86. All notices of motions, all notices of taking testimony, all summonses to attend a master, orders to confirm reports, unless good cause shown, and all orders nisi, if made in any cause depending in court, shall be served on the solicitor of the adverse party, if a solicitor be concerned for him, but if no solicitor be concerned for him, the service may be on the party, or left at his usual place of residence, or, if not resident in this state, by setting up the same in the ofiBce of the clerk of this court. 87. Ill 3'11 suits for the foreclosure or satisfaction of a mortgage, where there are no defendants claiming to he encumhrancers, * when the complainants bill shall be ordered to be taken as confessed, or the defendant shall make default at the hearing, and the whole amount of the debt intended to be secured by the mortgage shall have become due, no order of reference to a master to ascertain and report the sum due to the complainant shall be necessary, unless specially ordered by the court ; but a report by a master being made of the amount due * See Rule 18'7. The words in italics to Ije omitted in reading the rule. COURT OF CHANCERY. 33 upon the mortgage, the same, if no cause to the contrary be shown, shall be filed of course, and without any motion or rule for that purpose or for confirmation, and a decree made accordingly. 88. Ill cases where the complauiant's bill shall be ordered to be taken pro confesso against a defendant, and there shall bo a reference to a master ordered in the cause, the complainant may proceed before the master without notice thereof to such defendant, and it shall not be necessary, upon the coming in of the master's report, to enter a rule to confirm the same nisi, or to set the cause down pre- paratory to further directions, or to a final decree against such defendant ; but, if no exceptions to said report be filed within four days after the filing of said report, the complainant shall, without further notice, be entitled to a final decree. 89. In all cases where the complainant's bill shall be taken ^jro confesso against the mortgagor, and other defendants claiming to be encumbrancers file their answer or answers setting up said encum- brances, if the order of priority shall not appear, upon the lace of the pleadings, to be disputed by the parties, either complainant or de- fendant, and the amounts respectively claimed as due do not appear to be denied, and a report be made upon an order of reference to a master, it shall not be necessary to enter a rule nisi to confirm said report, or to set the cause down for hearing on the same ; but if no exceptions to said report be filed within four days after the filing of said report, the complainant shall without further notice, be entitled to a final decree. 90. Orders nisi, when necessary to confirm reports of masters, need not be served upon a defendant who has boon notified to attend the master respecting the matter referred, and has refused or neglected 34 RULES OF THE to attend, but shall become absolute of course, unless cause be shown to the contrary. 91. In cases where the court shall order the complainant to produce documents and depositions, exhibits or other evidence, to substantiate and prove the allegations in his bill, the proceedings subsequent to the said order may be considered as ex parte, and it shall not be necessary for the complainant to give notice thereof to the defendant. 92. Where a complainant omits to take a decree pro confesso, within four months after the time when he is entitled to it against all the defendants, he shall not thereafter move such decree until he has first taken and served an order on the defendant or defendants, if in this state, to file their answer or answers at such short day as the court may appoint. 93. When the complainant in any bill filed to foreclose a mortgage makes prior or subsequent encumbrancers parties to said bill, and they come in and answer, and the complainant then for four months neglects or refuses to proceed, the said defendants, or any of them, may take an order upon the complainant to show cause at any time, on ten days' notice, why the said defendant or defendants shall not be allowed to proceed with the said cause to decree and execution in his name ; and unless good cause be shown to the contrary, an order may be made that the said defendant or defendants shall be allowed so to proceed with the suit, and the complainant shall not be allowed his costs. XV...OF SETTING DOWN CAUSES, ETC. 94. -A.11 causes, including pleas aad demurrers, shall be set down for hearing for the first day of the term, provided there is time sufficient to give the notice required ; if not time, then at a subsequent QOUET OF CHANCEEY. 35 day in the term, not later than the twentieth day, and shall have priority according to the date of issue ; and the party setting down a cause for hearing, or his solicitor, shall, at least six days before the first day of the term for which the cause is noticed, furnish the clerk with a note of the time issue was joined, which shall be entered on the calendar ; and in default thereof, the cause set down without such note shall lose its priority. 95. Notices of bringing causes to a hearing, including the bringing on the argument of a plea, demurrer, and of exceptions to a master's report, shall be served at least fifteen days before such intended hearing or argument.. 96. Where the complainant has taken issue upon a plea, by filing a replication thereto, either party may enter the plea for argument at the next or any subsequent term. 97. -A-U suits for divorce shall be set down for hearing at or in the regular terms of the court. 98. When a replication has been filed, and the taking of proofs begun by either party, the complainant shall not be at liberty to dismiss his bill except upon special motion and notice to the defendants ; and in any such cause, if the complainant shall fail, within ten days after the expiration of the time to take testimony, to notice the cause for argument, the defendant shall be entitled of course to an order directing the complainant to show cause why the defendant should not be permitted to notice the cause for argument, and bring on the hearing thereof at the next stated term ; and if cause be not shown to the contrary, the defendant may be permitted to give notice, and bring on the hearing of the cause. 99. If a suit be suffered to lie without prosecution for one year, it shall be considered as abandoned, and the bill may be dismissed. 36 BULES OF THE. XVI...O]? THE ORDER OF BUSINESS. 100. On the morning of the first day of every stated term, motions and petitions shall have a preference of all causes set down for hearing or argument. 101. On E'll hearings and arguments before the court, after reading the pleadings, one of the counsel for the complainant, or party holdmg the affirmative, and having the right of opening, shall open the cause or matter in question, then two counsel for the adverse party may be heard in answer, after which one counsel, only, for the party having the opening may be heard in reply; but in case there be several defendants, who have separate and distinct interests, and different counsel concerned for them, then the counsel for the respective defendants shall be heard in such order as the court may direct, but in no case shall more than two counsel be heard for one defendant ; and if any more than two counsel are heard in answer for the defendants, in that case two counsel may be heard in reply. 102. No other causes will be heard at a special term, except such as are set down by consent of parties, unless otherwise specially ordered by the court. 103. Rules and orders to expedite a cause may be taken, as well in vacation as term time. XVII...OP COSTS. 104. The clerk shall not tax costs for setting down any cause, plea, demurrer, or other matter for hearing or argument more than twice, unless when set down by a special order of the court. 105. If ^ party gives notice of a motion, and does not move accordingly, he shall, upon the production of the notice, pay to the COITET OF CHANCERY. 37 other side costs, to be taxed, unless the court upon a consideration of the circumstances of the case, shall direct otherwise. 1 06. When a party shall set down a cause for hearing or argument, and give notice thereof, and shall not bring on the same agreeably to his notice, the opposite party, upon the production of the notice, shall be entitled to costs, to be taxed, for attendance on the court upon such notice, unless the court shall order off the hearing or argument without costs. 107. When the hearing or argument of a cause shall be ordered off upon the application of a party to whom notice has been given, the party setting down the cause shall be entitled to costs for attendance on the court upon such notice, to be taxed, unless the court shall order off the hearing or argument without costs. 108. Aparty shall notbe allowed to tax costs against his adversary for any amendment, or for any motion occasioned by his own fault, mistake, or laches, though he may, by his decree, recover costs of suit ; and when the court makes no special order respecting costs, a party making a successful motion, or successfully opposing a motion, shall have costs against the other party. 109. A counsel fee of three dollars shall be allowed for attending before a master or examiner making report or taking depositions, but no more, though the solicitor or counsel may have attended more than once, unless where new notice was necessary, and shall have been given ; and each party shall pay to the examiner the costs of his own examinations and cross-examinations.* 110. In taxing costs in mortgage cases, no costs shall be allowed for any proceedings at law upon the bond or mortgage ; but the clerk * See Rule 161. 38 EULES OV THE shall tax only such costs as have been incurred in the proceedings in this court. 111. In taxation of costs for service of subpoena to answer, the clerk shall allow for mileage only from and to the court-house of the county where the service is made. 112. For drawing and acknowledging every deed given by the guardian of an infant, idiot, or lunatic, by virtue of an order of- the Chancellor, three dollars and fifty cents shall be taxed in the bill of costs. XYIII...OF DECREES. 113. No final decree shall be enrolled by the clerk, or the enroll- ment signed by the Chancellor, nor any process issued thereon, until the expiration of ten days after pronouncing the same, without the special order of the court therefor. XIX...OP REHEAEING. 114. Every petition for a rehearing shall set out concisely the special matter or cause on which such rehearing is applied for, and shall be signed by two counsel, except in cases submitted without argument, when it shall be sufficient if signed by one counsel ; and if a rehearing is ordered, the party that complains of the decree or order, and applies to have it corrected, shall be entitled to open and close the argument. 115. A copy of every petition for a rehearing shall be served on the opposite party, with a notice of presenting the same. 1 16. If ^ petition for rehearing shall be presented to the Chancellor within ten days after pronouncing any final decree, and a caveat against enrolling and signing the same shall be filed with the clerk of COTTET OF CHANCERY. 89 the court, such final decree shall not be enrolled and signed, or any- process issued thereon, until the said application shall be finally disposed of. 117. The granting a rehearing shall not stay proceedings on any interlocutory decree or order, unless a special order be obtained for that purpose. XX...OF APPEALS. 118. In case of an appeal from an order or interlocutory decree, the appeal shall not stay proceedings thereon, without an order of .this court, or of the Court of Appeals, for that purpose first had, and upon complying with such terms as the court maldng the order to stay proceeding may impose. 119. In case of an appeal from any final sentence or decree, if the party appealing shall, within ten days after such final sentence or decree, file his appeal with the cleric of this court, it shall prevent issuing process on the said decree, without the order of this court or of the Court of Appeals first had and obtained for that purpose. 120. The appeal to be filed shall state shortly the parts of the order or decree complained of as erroneous, and shall be signed by counsel, who shall state that he conceives there is good cause for the appeal ; and a copy of the said appeal shall 'be served on the solicitor of the adverse party, if he has prosecuted or defended by a solicitor. 121. Iji case of filing an appeal, as aforesaid, from a final decree, the party appealing shall present his petition of appeal to the Court of Appeals, at their next term after pronouncing the said final decree, and on the first or second day thereof; and, in default of so doing, such appeal shall be deemed to have been waived, and proceedings may thereupon be had as if no appeal had been filed. 40 EULES OF THE XXI....O]? IDIOTS, LUKTATICS, AND HABITUAL DRUNKARDS. 122. Oil all applications to obtain a commission of idiocy, lunacy, or habitual drankenness, the petition shall be accompanied with the affidavits of two or more persons, evincing the lunacy, idiocy, or habitual drunkenness of the party against whom the commission is prayed, and the person's incapacity to manage his or her own affairs ; and the commissioners and jury shall have a right to examine the person of the idiot, lunatic, or habitual drunkard, and examine him or her before them, without a special order for that purpose. 123. In EiU cases where a commission of idiocy, lunacy, or habitual drunkenness shall issue, it shall be executed, and the inquisition returned to the Chancellor, in two months after making the order for issuing of the commission, or the commission shall be considered as superseded, and no proceedings take place thereon without the further order of the court ; and no decree shall be entered upon any such inquisition, and signed, until the expiration of ten 'days after the inquisition shall be returned into the office. XXII...OF GUARDIANS' SALES OF INFANTS' AND IDIOTS' OR LUNATICS' ESTATES. 124. The general guardian of the infant, if he have any, and if there is none, some relative or friend, may present a petition to the Chancellor, stating the age and residence of the infant, the situation and value of the real estate proposed to be sold, with a description of the same, and the particlar reasons which render a sale of the premises necessary or proper, and praying that a guardian may be appointed to sell the same. The petition shall also state the name and residence of the person proposed as such guardian, the relation- COtfRT 01" CSANCEET. 41 ship, if any, which he bears to the infant, and the security proposed to be-given. 125. The security required on a sale of the real estate of an infant _, idiot, or lunatic, shall be a bond of the guardian, with two suflBcient sureties, in a penalty of double the value of the premises, each of which sureties shall be worth the penalty of the bond over and above all debts, or a similar bond of the guardian only, secured by a mort- gage on unencumbered real estate of the value of the penalty of such bond, not estimating the improvements thereon. 126. Upon the petition being presented to the court, if it satis- factorily appear that there is reasonable ground for the application, there shall be a reference to a master* to ascertain and report whether the person proposed as guardian is a suitable and proper person for that purpose ; what is the age of the infant, the actual value of the infant's interest in the real estate proposed to be sold, the suiliciency of the sureties offered by the guardian, and whether each is worth double the talue of the infant's interest in the real estate proposed to be sold, over and above all debts ; or whether the land proposed to be mortgaged by way of security is unencumbered, and of the requisite value, according to the preceding rule ; and what should be the penalty of the guardian's bond, in conformity with the provisions of that rule, to be given to each infant. And if the master is not satisfied with the person nominated as guardian, or with the security proposed, he may name a suitable person as guardian, and state what further or other security should be given. 127. On the coming in of the report of the master, an order may be entered appointing a guardian for the purposes of the application, * See Rule 16. 4 42 EtJLES OF THE on his executing and filing with the clerk the requisite security, ap- proved of, as to its form and manner of execution, hy the master, signified hy his certificate endorsed thereon. 128. When the requisite security shall be filed as aforesaid, an order shall be made referring it to a master, specially designated in the order by name, to ascertain the truth of the facts stated in the petition, and whether the interest of the infant requires that said real estate, or any part thereof, should be sold, and what part, and the particular reasons upon which his opinion is founded ; and to ascertain the value of the property proposed to be sold, and of each separate lot or parcel thereof, and the terms and conditions upon which it should be sold, and fixing a price below which it should not be sold, and to report whether, in his opinion, said premises will increase in value during the minority of said infant, and to what extent. 129. If ^'iiy person entitled to dower in the premises, or to any estate for life, or years therein, devised to a widow in lieu of dower, is willing to join in the sale and release such estate upon receiving, in lieu thereof such sum in gross as shall be approved by the Chancel- lor, or upon the investment of such sum as the Chancellor may deem reasonable, in such manner that the interest shall be paid to the person entitled to such estate for the duration thereof: or if any person entitled to curtesy in the premises shall be willing to join in the sale upon receiving such sum in gross as shall be approved by the Chancellor ; and such person shall, before the sale, sign and deliver to the guardian a consent in writing to join in the sale and release such estate on the terms above specified, or either of them, then the guardian shall sell the lands free from such estate. 1 30. -A-nd if any person entitled to such dower or estate shall have COTJET Ol-'.CHANCEEY. 43 agreed to join in the sale and accept such sum in gross, or invest ment in lieu thereof, then, upon such sale, it shall be referred to a master* to ascertain and report the clear yearly income, above insur- ance, repairs, and taxes, that such tenant for life could realize from the whole premises during his or her life, if owner of the whole for life ; and in such calculation allowance shall be made for all repairs necessary to keep the premises in as good condition as at the sale, including the renewal of any part of the buildings thereon that may, by ordinary wear and tear, decay and require renewal. And from said income to ascertain and report the gross value of such dower or other estate, on the principle of life annuities, to be calculated on the basis of the table annexed to the rules of this court. And also further to ascertain the gross value of such dower or estate from the net proceeds of the sale above costs and expenses, to be calculated on the basis of said table. And also, in case such consent is to accept a gross sum, to inquire into and report the condition as to health of such dowress or life tenant, and whether he or she has an average expectancy of life; and if not, what deduction should be made from such gross sum on that account. 131. The gross sum or income allowed in lieu of any dower or other estate so sold shall not be greater than that calculated on the net proceeds of sale ; and when the clear yearly income shall be less than the interest on the net proceeds of sale at six per cent., the income or gross sum to be allowed shall be settled, by adding to the amount calculated from the clear yearly income, in cases of dower one-half, and in other cases one-fourth, of the excess of the amount calculated from the net proceeds of sale. * See Rule 185. 44: RULES OF THE 132. In the order approving the sale, and directing a conveyance to be executed, may be embraced the directions and order of the Chancellor for the application and disposition of the proceeds of the sale, and for the investment of the surplus thereof 133. Every guardian and receiver appointed by this court shall, within six months after his appointment, and every special guardian for the sale of an infant's estate shall, within six months after the order confirming a sale of the estate, or any part thereof, file in the office of the clerk of this court, a just and true inventory under oath, of the whole estate committed to his care or guardianship, and of the manner in which the funds under his care or control, belonging to the estate, are invested, stating the income and profits of such estate, and the debts contracted, and expenditures made by him on account thereof And he shall annually thereafter, so long as any part of tlie estate, or of the income or proceeds thereof, remains in his hands, or under his care or control, file in the said clerk's ofiBce an inventory and account, under oath, of his guardianship or trust, and of the amount remaining in his hands or invested by him, and of the manner in which the same is secured or invested. 134. It shall be the duty of the clerk, on the first day of every stated term of the court, to present to the Chancellor a list of all guardians and receivers, and of all persons who have received money for investment under any order of this court, who have neglected to comply with the duties prescribed by the next preceding rule for more than three months after the times limited for the performance thereof, to the end that the Chancellor may make such order re- specting such delinquents as may be just. And the inventories and accounts of such guardians and receivers shall from time to time, in the discretion of the Chancellor, be referred to one of the masters of OOtTKT OF OHANOERY. 46 the court, who shall report, at the next term of the court after such reference, whether such accounts appear to have been correctly kept, and whether the funds are safely invested or secured. And the said master may summon such guardian or receiver to appear before him, and examine him under oath touching his account or inventory ; and he may summon and examine other witnesses touching the matters submitted to him, if he shall see proper to do so. 135. It shall be the duty of the master specially designated for the purpose, in the month of January in every year, to examine the inventories and accounts of guardians and receivers which have been filed with the clerk for the preceding year, and report to the court, at its next term, whether such accounts appear to have been correctly kept; whether there has been any waste or misapplication of the funds, and whether the same are properly and safely invested or secured, so far as he can ascertain the same from the examination of such accounts and inventories on file. If such master find the ac- count or inventory of any guardian or receiver erroneous or imper- fect, or discovers or suspects that the property has been misapplied or wasted, or that the funds are unsafe or improperly invested, he shall summon the guardian or receiver to appear before him to correct the account or inventory, or to give such explanations, on oath, as may be deemed necessary. The master may also summon and examine witnesses on oath, if he shall deem it proper, in relation to such inventory or account or th^ situation of the funds. 136. li ^ ordered, that Joseph H. Hough be appointed the master designated by the preceding rule. 137. The guardian shall be entitled to receive on all sales of such infants' estates the following per centage : 46 EULES OF THE 1. On all sums not over one thousand dollars, three per cent, on the amount of sales. 2. If over one thousand dollars, and not exceeding three thousand dollars, two per cent, on such excess ; and 3. If over three thousand, dollars, one per cent, on such excess. 138. That all duties to be performed hv a master under this rule, respecting guardians' sales of infants' and idiots' or lunatics' estates, shall be performed by the masters v/ho are designated by the Chan- cellor as " special masters." XXIII... OF PARTITION. J 139. Where a bill is filed for partition, and a decree pro confesso is taken, there shall be a reference to a master* to report as to the rights of the respective parties in the premises, and to ascertain and report whether, in his opinion, a partition of the land or real estate can be made without great prejudice to the owners of the same ; which report shall be made to the Chancellor, at the time and place named in the order of reference, at which time and place any party interested may appear and make objections to the report ; but no exceptions in writing shall be filed to the same. If the master report that a partition cannot be made without great prejudice to the owners of the same, and the report is confirmed, then an order shall be made directing a sale by a master. If the master report that, in his opinion, a partition can be made without prejudice, etc., then the Chan- cellor shall appoint three persons, as commissioners, to make parti- tion according to law : and all further proceedings, as to such sale or partition, shall be according to the practice of the court in like cases * See Rule 16. COUET OF CHANCERY. 47 heretofore. In' cases of sale, the master shall be allowed the same fees which are designated by the act approved March 29th, 1856, entitled " a further supplement to the act entitled, an act for the more easy partition of lands held by coparceners, joint tenants, and tenants in common."* 140. When a married woman, one of the parties in partition, owns an undivided share in her own right, and the title has become vested in her, or the coverture commenced after July 4th, 1852, the title of such share shall be stated in the report of the master ascer- taining the rights of the parties and in the decree thereon, to be iii such married woman, and not in her and her husband ; and if in such case a sale be made, her share of the proceeds of sale shall be ordered to be paid to her ; and in all other cases the title shall be stated to be in her and her husband in her right, and their share of the proceeds be ordered to be paid to both. 141. When an estate in dower or by curtesy in any lands sold by order of the coiirt in proceedings for partition shall, by order of the court, be sold with such lands, the sum to be paid or invested in lieu of such dower, or curtesy shall be ascertained in the same man- ner as in like cases on sale of infants' lands. 142. In cases of partition, the master who may make the report whether partition can be made without great prejudice, shall in no case be appointed to make sale of the premises. . XXIV...OF CASES SUBMITTED. 143. Where cases are submitted to the Chancellor without * On all sums not exceeding one thousand dollars, two per cent. ; if over one thousand dollars, and not exceeding three thousand dollars, one per cent, on such excess ; if over three thousand dollars, one-half of one per cent, on such excess. — Mwii's Dig., p. etg. 48 EULES OF THE argument, such submission shall be made by agreement in writing, signed by the solicitors of the respective parties, and shall be ac companied by briefs or notes of the points and cases upon which the said parties respectively rely. 144. In all cases submitted by the consent of parties without argument, a rehearing shall be granted of course, if either party is dissatisfied with the decree or order made in such case, and shall apply therefor within ten days after such decree or order shall be made. XXT...OI' TEEMS OF COUETS. 145. Bach regular term of the court shall continue, for the set- ting down of causes and arguments, until the twentieth day thereof, and for all other purposes until the next regular term ; but no argu- ments or contested motions shall be heard between the sixteenth day of July and the first day of September, except in ifijunction cases, unless by consent or the special order of the Chancellor. XXVI... OP EXECUTION. 146. That every sheriff shall make return of his execution, and pay to the clerk of this court any surplus in his hands within thirty days after sale ; and no execution shall hereafter be directed to any sheriff while he shall be in default in either of the above respects ; and any sheriff, who shall pay over to any defendant named in an execution any money raised by him on the same, unless so directed by the writ, or by an order of the court afterwards made, shall have no allowance for the same. COUET OF CHAJSCEEY. 49 XXVII...OP PRINTING EVIDENCE. 147. Parties may agree to print the evidence in any cause for the final hearing, or if they do not agree, either party may apply for an order that the same be printed at the joint expense of both parties ; in both cases each party shall, in the first instance, pay a share of the costs of printing, in proportion to the length of his examinations, cross-examinations, and exhibits, and such payment shall be allowed in the taxation of costs. And either party may, at his own risk, cause the evidence to be printed, in which case the Chancellor shall make such order for payment of printing as he shall deem right on the determination of the suit ; and all evidence shall be printed in the manner directed by the rules of the Court of Errors and Appeals for printing records therein.* XXVIII...OE ORDERS TO EXTEND TIME. 148. No order shall be made to extend the time for taking testi- mony, or for filing any pleading or other paper, except u^n three days' notice, which shall be sufficient notice in such cases ; the affidavits upon which such applications are founded shall be served- for three days ; but counter affidavits may be read without notice. XXIX...OE APPOINTMENT OF TRUSTEES. 1 49. Applications to appoint or substitute trustees may bd made by bill or petition, and when made by petition shall set forth the trust sufficiently to show who are interested in the same as cestui que trusts, vested or contingent, and as trustees ; and notice shall be given to each person so interested of the time, place, and object of such * Sso Rule 163 ; also Rule 25 of the Court ot Errors and Appeals. 50 RULES OF THE application, by serving the same in person or at his residence for ten days before such application ; and if the party reside out of the state, by mailing the same prepaid, directed to such party at his post- office address, so that the same would reach him, by the usual course of the maU, twenty days before such time ; and in case such party shall be an infant, such notice shall be served on his or her parent or guardian, or in such other manner as the Chancellor, on applica tion, may direct. XXX...OP NOTICES OF MOTIONS. 150. Notices of motions to dissolve injunctions shall be served eight days, of motions to extend time for filing pleadings and other papers three days, and of aU other special motions five days ; and such notices of said motions, respectively, shall be suflScient. XXXI...OI" SPECIAL MASTERS. 151. The following masters, until the further order of the court, are designated as "special masters." Bekgen... Manning M. Knapp and William S. Banta. Hudson... Isaac W. Scudder, Washington B. Williams, Frederick B. Ogden, Jonathan Dixon, jun., Thomas W. James* and Isaac Eomaine.* Passaic. .Aarora S. Pennington, John Hopper, William Gledhill, Henry A. Williams* and John T. Barkalow.* Essex... WiZZmm K. McDonald, Joseph P. Bradley, Theodore Frelinghuysen, Algernon, S. Hubbell, John E. Weeks, Amzi Dodd, Theodore Eunyon, William S. Whitehead, and Staats S. Morris. Union... William F. Day, William J. Magie, Robert S. Green, Thomas H. Shafer and Andrew Dutcher.f In Chancery of New Jersey. Under the authority vested in the Chancellor to make rules and orders to regulate pleadings and practice in the Court of Chancery, &c., &c., Rev. Stat., page 80, Sec. 109, the following rule is promulgated anew : Rule 150. Notice of motion to dissolve injunctions shall be served eight days ; of motions to extend time for filing pleadings and other papers, three days ; and of all other special motions, five days ; and such notices of said motions, respectively, shall be sufficient. Dated April 20, 1875. 52 ETJLES OF THE XXXII...JOINDBR OF COMPLAINANTS. 152- '-A-ny number of persons severally owning or possessing distinct tenements, injuriously affected by a common nuisance or other common grievance, may join in a bill for injunction or relief; provided, that it shall be in the discretion of the Chancellor to strike out of the bill any of such complainants, when, in his opinion, the justice of the case, or convenience of proceeding, shall require it. XXXIII...APPLI0ATIONS FOR MONEYS IN COURT FOR THE PAYMENT OF DEBTS OF DECEDENTS. 153. Applications by executors or administrators for the surplus moneys on foreclosure sales, or for the proceeds of lands sold in suits for partition, to be applied by them to the payment of the debts of a decedent represented by them, shall be made by petition. The petition shall state the time of the death of the decedent, the date of *, the sheriff's or master's deed upon which such moneys were received, whether any of the heirs or devisees have aliened or encumbered their estate in the lands sold, in whole or in part, and when and what part, and to whom. There shall be annexed to the petition a true account of the personal estate of the decedent that has come to the hands or knowledge of the petitioner, stating the amount of the same which has been collected or realized, and what part, if any, has not been collected or realized, and specifying what parts are deemed good, doubtful, or desperate. Such account shall also state how the amount realized has been disposed of and how much remains on hand ; also, the debts due, or claimed to be due, from the decedent, and to whom owing, and what part of such debts are disputed by the petitioner. And such petition and account shall be verified by oath. COUET OF C&ANOEE^. SS 1 54. Such petition shall be filed, and notice of the application shall be given for ten days before the same is made, to all persons entitled to such moneys, or any part thereof, if not required for the payment of debts. Such notice — beside the time and place of application — shall state the amount of the personal estate that has come to the hands of the petitioner, the amount paid out for debts and expenses, and the amount of debts paid and claimed to be due and unpaid. Such notice may be served upon persons who reside out of the state and have not appeared in the suit, by setting up a copy in the ofSce of the clerk of this court, and also mailing a copy to the post office address of such person, if the same be known. 155. Unless the consent of all so interested in such moneys shall be given to the payment of the same, or a sufficient part thereof, to the petitioner, it shall be referred to a master * to ascertain and report upon the truth of the matters in such petition and account ; and also, how much will be required for the payment of the debts of the decedent above the amount realized and likely to be realized from the persona! estate ; and also, whether any part of the lands sold has been aliened by the heirs or devisees before the sale, so as by law to be free from the lien for the debts of the decedent, and what part, and when, and to whom aliened. And the summons to attend such hearing before the master shall not be required to be served on any person, except such as may have entered an appearance on the notice of the application. 156. No order shall be made for the payment of such moneys, unless it shall appear that such executor or administrator shall have administered, as nearly as practicable, all the moneys received by * See Rule 185. 54 EULES OJ" THE him, and used due diligence to collect such as have not come to his hands. 157. No moneys shall be paid on such application until the petitioner shall have filed in this court his bond to the Ordinary, in double the sum directed to be paid, with two sufiScient sureties, residents of this state, with condition similar to that prescribed by law for bonds upon orders of the Orphans Courts for the sale of lands for the payment of debts. XXXIV...OF SUITS FOE DIVORCE.* 158. In suits for divorce on account of adultery, the bill or petition shall state the name of the person with whom the adultery was committed, if known ; and if not known, shall set forth the description of the person, or such designation of the time, place, and circumstances under which the act or series of acts were committed, as will enable the defendant and the court to distinguish and individuate the particular offence or offences intended to be charged. And no reference shall be ordered in a suit in which the offence is not so designated. And if the name of the person is stated to be unknown, it must be shown on the reference that it was not known at the commencement of the suit. 159. Oil ^ reference in a suit for divorce, the master f shall take down and report the testimony in such manner that it may appear whether the facts sworn to are within the personal knowledge of the witness, or are from hearsay or reputation ; and the master shall not report any evidence from hearsay or reputation which shall appear to * See Eule 186. ] See Rule 16. COTJKT OF CHAlfCEKT. him to be illegal, unless the complainant or his counsel insists that ' the same is legal. And such master shall report distinctly what facts alleged as the ground for divorce are proved to his satisfaction ; and also, what facts necessary to give jurisdiction are so proved. And in suits based on desertion, shall examine into and report the facts and circumstances under which the desertion took place, and the reasons which caused or provoked it, if the same can be ascertained. XXXT-OF SUITS IN "WHICH THE CHANCELLOR MAT BE INTERESTED. 160. In 3,ny suit commenced in which the Chancellor may be a party, or may be interested, an order shall be made requesting the Vice Chancellor, or the Chief Justice, or such Associate Justice of the Supreme Court, or Master in Chancery, as the Chief Justice may designate for that purpose, to hear the same and all proceedings therein, and to advise the Chancellor what orders and decrees to make therein. And in the process, pleadings, orders, and other proceedings in suits to which he may be a party, the Chancellor, when referred to as such, shall be designated by his name of ofSce only. XXXVI...OE THE FEES OF MASTERS. 161. On all reports made by masters upon special reference in the cases herein specified, the master shall be entitled to four dol- lars for making the report, and thirty cents per folio for drawing the same and all schedules annexed thereto. 1. On the divisibility of lands in suits for partition. 2. On the merits, in application for the sale of lands of infants, idiots, or lunatics. 66 fitjLES OS* Titil J I 3. On references in foreclosure suits, when any defendant holding (an enci^mbrance has appeared and is summoned. Ja \4. On reference to ascertain the amount to be paid or invested in /Reu of dower, or curtesy, or life estate. 5. On application for surplus moneys in foreclosure suits. 6. On application for the proceeds of sales in partition for the payment of debts. 7. On references on the merits in divorce suits. S. On all references to take and state accounts. XXXYII...NOTICES ON APPLICATIONS TO BE MADE A PAKTT. 162. If the party shall be dead on. whom the petition or notice of application is required to be served, by the fourth section of " an act relating to the Court of Chancery," approved March 17th, 1870 such notice or petition may be served either on the executor or ad- ministrator of such deceased party, or on the solicitor who appeared for him in his lifetime ; or, in case there be no such executor, ad- ministrator, or solicitor, it may be served by putting up the same in the ofBce of the clerk of this court, and such service shall be lawful service.* XXXVIII...OP PRINTING EVIDENCE. 163. In 3-11 cases the evidence in any cause to be used on the hearing shall be printed, unless the same shall be less than thirty folios ; and the printing shall be paid for as directed in the one hun- * This section of tlie act of Marcli 17, 1870, refers to persons, who, after the commencement of a suit in Chancery, shall acquire an interest in the subject matter thereof, such aa would have required that they should have been made parties, if such interest had been acquired before the said suit was brought. COUET OF CHANCEEY. 67 dred and forty-seventh rule of this court. A.nd in cases where part of the evidence consists of exhibits, only .those parts of the exhibits shall he printed upon which some question exists, or shall be made by the parties in the cause. XXXIX...OF AFPIDATITS TO ANSWERS BY DEFENDANTS OUT OP THE STATE. 164. Where an answer shall be sworn to by a defendant out of this state, the oath may be taken before a notary public, certified under his seal, or before any person who shall be authorized by the law of this state to take the acknowledgement of the execution of a deed for lands in this state, at the place where such answer shall be sworn to, and the authority to such person shall be certified in the same manner as required for the recording of a deed acknowledged before him. XL...OP INTEREST ON MONEYS IN COURT. 165. J^ll sums exceeding two hundred dollars, which shall be deposited and remain in court for ten days, and all sums not exceed- ing two hundred dollars which shall be deposited and remain in court for thkty days, shall be allowed niterest at the rate paid by the de- positary of the funds of the court at the time, for the full period for which such funds shall remain in court. XLI...SUEPLUS MONEYS IN EOREOLOSURE SUITS. 166. Petitions for surplus moneys in foreclosure sales maybe presented at any time after the sale, and before the moneys are paid into court. And if any order be made for the payment of such sur- plus before the delivery of the deed, the sheriff or other officer 5 58 ETJLES OF THE making the sale shall accept the receipt or order of the person to whom such surplus, or any part of it, may be ordered to be paid, as pay- ment to that extent of the purchase money, or may pay the same to such person. 167. -A-ny master, to whom an application on surplus moneys may be referred,* shall issue summonses to all defendants, whose claims are not directed in the execution, to be paid out of proceeds of sale. And he shall not proceed, unless such summonses shall have been served five days, as directed in the 86th rule ; or the parties shall appear before him. 168. Where the bill in a foreclosure suit shall be ordered to be taken as confessed against any defendant, no report or decree shall be made by which his rights or claims are postponed to those of any other defendant, unless the priority of the rights or claims of such other defendant and the facts upon which it depends, are distinctly set forth in the bUl. And any controversies between such defendants may be settled upon application for the surplus moneys. XLII...RELATING TO THE TI CE-OH ANCELLOR. 169. The Vice- Chancellor shall be an Injunction Master, and, injunctions shall issue upon filing his determination advising the same. 170. -^ny cause or other matter may be referred to the Vice- Chancellor, at the discretion of the Chancellor. Application for such reference, if not made by both parties, may be in presence of or upon five days' notice to the adverse party, or his solicitor. 171. "When a cause shall be referred to the Vice-Chancellor, all proceedings in it to the final decree shall be had before him. * See Rule 185. COURT 01" CHANCERY. 59 172. When a cause referred to the Vice- Chancellor shall he at issue, the complainant shall set it down for hearing in the equity district -where the same is to he tried, at the next term which may be held therein thirty days after issue is joined and the cause referred, and shall give notice of such hearing to the adverse party, within ten days after issue is joined and the cause referred, and such notice shall be served at least fifteen days before the term for which it is given. 173. -A- cause may be set down for hearing at the election of the complainant, either in the district in which the complainant or any defendant with whom issue is joined, resides, or if the controversy be about real estate, in the district in which the same or the greater part of it is situate. But the district in which the same is to be heard, may be changed by the Vice- Chancellor, on application to him, for any reason that may seem to him sufficient. 174. -A.ny other time and place for the hearing may be designated by the Vice-OhanceUor, by consent of parties, by an order before such time for which notice is given, or at that time ; or may be designated at or before that time by him, on application of either party ; if before, on five days' notice. 175. -^t the time noticed or designated for hearing, both parties shall attend with their witnesses and other evidence, and the cause shall proceed as at a trial at law before a jury, by the oral examina- tion of the witnesses on both sides continuously until all the evidence has been produced and closed ; the party holding the afSrmative first producing all his evidence, and after resting, he shall be permitted to produce evidence in rebuttal only ; but the Vice-Chancellor may, in his discretion, reserve to either party the right to produce one or more -witnesses, who shall be named, to be examined orally or by 60 EULES OF THE deposition at a future day. But such right sliall not be granted unless the Vice- Chancellor be satisfied that due diligence has been used to procure the attendance or deposition of such witness before the trial, nor unless it be fairly disclosed what is expected to be proved by such witness, and such evidence shall appear to be material, and shall not be admitted hj the other party or parties. 176. Either party, after a cause is at issue, may, upon filing an affidavit that a material witness is very old, infirm, or about to leave the state, and that ho is in danger by reason thereof of losing the benefit of his testimony, talce the deposition of such witness before any examiner, upon like notice and in like manner as such evidence has heretofore been taken ; and such deposition shall be filed with the clerk in Chancery, by the examiner before whom it was taken, within six days after it is concluded, and may be read as evidence, subject to all exceptions, at the hearing of the cause, unless some party to the cause shall produce such witness at the hearing, in which case, he shall be examined orally. 177. When a stenographer appointed by the Vice-Chancellor shall attend to take down the testimony the examination shall proceed as rapidly as counsel can ask, and the witness answer, the questions. The examining counsel shall not take notes, nor shall the examina- tion be delayed in order that any counsel or other person, except the reporter, may takes minutes of the testimony. But every elTort shall be made by the court and counsel to expedite the cause, so far as may be consistent with a full and fair hearing thereof. 178. The competency of evidence shall be determined by the Vice-Chancellor, who, upon the objection of either party or of his own motion, shall exclude evidence that may be illegal or irrelevant. 179. -A-t the time designated for the hearing of a cause, the hear- COUET OF CHANOEET. 61 ing shall not be put off^( except by consent), for the absence of a material witness, unless the Vice-Chancellor shall be satisfied that a fair and earnest effort has been made in proper time to procure the attendance of such witness, and. if such attendance could not be procured, to procure his deposition; and the Vice-Chancellor may, in his discretion, order the hearing to proceed, and direct that any material witness named, may be examined orally, or his deposition procured at a future day fixed and named in such order ; but the matter to be proved by such witness shall be disclosed at the making of such order, and no hearing shall be postponed for any cause, unless a future time and place for hearing be fixed and designated, and such terms as to costs as may be directed by the Vice-Chan- cellor be complied with. The argument of a cause or matter may be had, at the discretion of the Vice-Chancellor, either immediately upon the closing of the testimony, or at a future day to be fixed. 180. -^ rehearing of decrees signed upon the advice of the Vice- Chancellor may be had in the same manner and upon the same terms as in cases heard by the Chancellor. But no rehearing shall be ordered as to conclusions of fact, unless the Vice-Chancellor shall certify that, in his opinion, the questions involved or some of them, should be again heard upon the evidence. 181. Every Monday shall be motioji day at the Chambers of the Chancellor, and every Tuesday at the State House at Trenton, both in term and vacation, except from the second Monday in July to the second Monday in September, when every alternate Monday, com- mencing with the fourth Monday, in July, shall be motion day at the Chancellor's Chambers. All motions on said days may be heard by the Chancellor or the Vice-Chancellor, one of whom will attend for that purpose. « Chancellor's Chambers, Newark, July 27, 1878. The forty-sixth rule of this Court is hereby altered by the substitution of the words "shall decide that the injunc- tion was unfairly obtained," for the words " shall eventually decide that the complainant was not equitably entitled to such injunction." • THEODORE RUNYON, C. ADDITIONAL RULE Court of Chancery NEW JERSEY, No (lay shall be assigned by the court for the final hear- ing of any cause on the list until after the evidence shall iiave been eloped, unless the cause be set down for hearing on bill and answer. In Chancery of New Jersey. Additional Rule. 189. When a cause, referred to the Vice Chancellor, shall be at issue, either party may, upon five days' notice to the other party or parties, apply to the Vice Chancellor to fix a time and place for the hearing thereof; and, upon such appli- cation, the Vice Chancellor may designate such time and place, the time not to be less than thirty days thereafter ; and upon twenty days' notice in writing of the time and place so designated, given by either party to the other or others, the cause may be heard. 62 EULES OF THE 182. -A-ll motions in causes not referred to the Vice Chancellor, shall be made on such motion days, and notice of a motion at 'any other time shall be of no avail, unless specially directed by the Chancellor, and unless the facft of such special direction having been made, be expressed in the notice. 183. There shall be four equity Districts in the state, embracing respective as follows : First District, the counties of Cape May, Salem, Cumberland, Gloucester, Camden, Atlantic and Ocean. Second District, the counties of Burlington, Monmouth, Mercer, Hunterdon and Somerset. _ TKird District, the counties of Middlesex, Union, Essex, Hudson, Bergen and Passaic. Fourth District, the counties of Morris, Warren and Sussex. 184. The terms and places for the sitting of the Vice Chancellor to hear causes and matters referred to him in said Districts, shall be as follows : In the First District, at Camden, on the first Tuesday of January, the fourth Tuesday of April and the fourth Tuesday of September. In the Second District, at Trenton, on the third Tuesday of May, the third Tuesday of September, and the fourth Tuesday of De- cember. In the Third District, at Newark, on the third Tuesday of Febru- ary, the fourth Tuesday of May, and the second Tuesday of October. In the Fourth District, at Morristown, on the second Tuesday of January, the third Tuesday of AprU, and the second Tuesday of September. COURT OF OHAJfCEEY. 63 ADDITIONAL RULES. 185. -^11 references to ascertain the value of dowor, or curtesy in moneys in court, and all references as to surplus moneys on foreclo- sure sales, and on application for the proceeds of sales in partition suits for payment of debts, shall be to special mz stars. 186. The 24th, 25th, 26th, and 27th rules shall apply to suits for divorce commenced by petition, and to all other suits commenced by petition. And the term complainant in the rules of this court, shall be held to include the petitioner in suits or proceedings commenced by petition. 187. When a defendant shall be arrested on a writ of ne exeat, the sheriff may, in lieu of the bond heretofore used and required, take a bond in the sum endorsed on the writ, with sureties as required by law, with condition that the defendant shall cause his appearance to be entered in the suit, and continue such appearance by a solicitor of this court, residing in the state; and shall at all times render himself amenable to the orders and process of this court pending the suit, and to such process as shall be issued to compel the per- formance of the final decree therein, and will appear before this court or any officer thereof, when so required by the order of this court. 188. The 87th rule is amended by striking out the words "where there are no defendants claiming to be encumbrancers." 'U EULES OF THE ANNUITY TABLE. Table showing the present value of §1 per annum, to be received during the life of a person whose age is given ; also, showing the widow's per centage of the net proceeds arising from the sale of land m which she is entitled to dower, her age at the time of the sale being given. — Calculated by the Carlisle Table of MortaUty, and interest at 6 per cent. O ■ per sale. ■ ° d §1 r2 P. " o ■ © S 1 § E^ S «. ^t-i s 3 m '" S f! m U-, AGE > S IS II AGE. > 5 CD I— 1 AGE 1 S 15 $14,126 $28,252 44 $11,551 $23,102 73 $5,170 $10,340 16 14.067 28.134 45 11.428 22.856 74 4.944 9.888 1'7 14.012 28.024 46 11.296 22.592 75 4.760 9.520 18 13.956 27.912 47 11.154 22.308 76 4.579 9.158 19 13.897 27.794 48 10.998 21.996 77 4.410 8.820 20 13.835 27.670 49 10.823 21.646 78 4.238 8.476 21 13.769 27.538 50 10.631 21.262 79 4.040 8.080 22 13.697 27.394 51 10.422 20.844 80 3.858 7.716 23 13.621 27.242 52 10.208 20.416 81 3.656 7.312 24 13.541 27.082 53 9.988 19.976 82 3.474 6.948 25 13.456 26.912 54 9.761 19.522 83 3.286 6.572 26 13.368 26.736 55 9.524 19.048 84 3.102 6.204 27 13.275 26.550 56 9.280 18.560 85 2.909 5.818 28 13.182 26.364 57 9.027 18.054 86 2.739 5.478 29 13.096 26.192 58 8.772 17.544 87 2.599 5.198 30 13.020 26.040 59 8.529 17.058 88 2.515 5.030 31 12.942 25.884 60 8.304 16.608 89 2.417 4.834 32 12.860 25.720 61 8.108 16.216 90 2.266 4.532 33 12.771 25.542 62 7.913 15.826 91 2.248 4.496 34 12.675 2S.350 63 7.714 15.428 92 2.337 4.674 ' 35 12.573 25.146 64 7.502 15.004 93 2.440 4.880 36 12.465 24.930 65 7.281 14.562 94 2.492 4.984 37 12.354 24.708 66 7.049 ■ 14.098 95 2.522 5.044 38 12.239 24.478 67 ■ 6.803- 13.606 96 2.486 4.972 39 12.120 24.240 68 6.546 13.092 97 2.308 4.736 40 12.002 24.004 69 - 6.277 12.554 98 2.227 4.454 41 11.890 23.780 70 5.998 11.996 99 2.004 4.008 42 11.779 23.558 71 5.704 11.408 100 1.596 3.192 43 11.668 23.336 72 5.424 10.848 101 1.175 2.350 PEEEOGATIVE OOUET. 66 RULES » OF THE PBEROaATIVE COURT. I...OF PROCTORS. All solicitors of the Court of Chancery shall be proctors of this court. II... OF APPEALS. On appeal to the Prerogative Court, from the order, sentence, or decree of the Orphans Court, or from the proceedings of a surrogate, the proceedings shall he conducted by proctor and counsel, and by of guardians ad litem of minors, according to the practice of the Court Chancery, except as hereinafter specified. The party appealing shall cause the transcript of all the proceedings before the surrogate or Orphans Court to be made, authenticated, and returned to this court within twenty days from the time of entering the appeal in the court below, or the Ordinary may dismiss the appeal, unless further time is allowed for the return of the transcript. The appellant shall also file a petition of appeal, addressed to this court, with the register, within fifteen days after the appeal is entered in the court below, or the appeal shall be considered as waived ; and any party interested in the proceedings in the court below may thereupon apply to the Ordinary ex parte to dismiss the appeal with costs. The petition of appeal shall briefly state the general nature of the proceedings in the 66 RULES OF THE court below, and of liJie sentence, order, or decree appealed from, and shall specify the part or parts thereof complained of as erron- eous ; except where the whole sentence, order, or decree is alleged to he erroneous, in which case it shall he sufficient to state that the same, and every part thereof, is erroneous. And where the appeal is from the sentence or decree of an Orphans Conrt, on the settle- ment of the accounts of an executor, administrator, or guardian, if the appellant wishes to review the decision of the Orphans Court, as to the allowance or rejection of any particular items of the account, such items shall he specified in the petition of appeal, or the allow- ance or disallowance of any such items shall not he considered a sufficient ground for reversing or modifying the sentence or decree appealed from. The respondent, in his answer to the petitioli of appeal in such cases, may also specify any items in the account as to which he supposes the sentence or decree is erroneous, as against him and in favor of the appellant. And upon the hearing of the parties upon such appeal, the sentence or decree of the Orphans Court may he modified, as to any such items, in the same manner as if a cross- appeal had been brought by such respondent. On an appeal from the sentence, order, or decree of an Orphans Court, or proceedings of a surrogate, the appellant, after the petition of appeal and the transcript of the proceedings in the court below have been filed with the register, may have an order of course, that the respondent in the petition of appeal answer the same, within twenty days after the service of a copy of the petition of appeal and notice of the order, or that the appellant be heard ex parte. And where the respondent is an adult, upon filing an affidavit of such sefvico upon the proctor of the respondent, if he has appeared either in this court, or in the court below, by a proctor of this court, or upon the suiTogate, if he PEEEOGATIVE COUET. 6Y has not appeared by such proctor, and that no answer to the petition of appeal has been received, the appellant may have an order of course, that the appeal be hea!rd ex parte, as against such respondent. Where the respondent is a minor, if he does not procure a guardian ad litem upon the appeal, to be appointed within twenty days after the filing of the petition of appeal, the appellant may apply to the Ordinary ex parte for the appointment of such guardian. And if the minor has appeared by his guardian ad litem in this court, the appellant may have an order of course, that the guardian ad litem of the respondent, answer the petition of appeal within twenty days after service of a copy thereof, and notice of the order. When a petition of appeal is filed, iP it has not been served on the adverse party, the .respondent may have an order of course that the appellant deliver a copy of the petition of appeal to the proctor or to the guardian ad litem of the respondent, within ten days after service of notice of such order, or that the appeal be dismissed ; and if the same is not delivered within the time limited by such order, the respondent, upon due notice to the adverse party, may apply to the Ordinary to dismiss the appeal with costs. in...OP APPLICATIONS POR DIVISION OP REAL ESTATE. * 1. All applications to the OrdinaLry for the division ,of real estates shall be by petition, and the allegations of the said petition shall be verified by afiBdavit ; and four weeks' notice in writing of the inten- ded application shall be served on all the parties concerned in such real estate, who shall not join in the said petition and shall reside in this state, or on the guardians or fathers of such of the said parties as are minors, and who shall reside in this state ; and in case any of the said parties to be notified as aforesaid shall .reside out of this 68 EULE8 OF THE state, or cannot be found therein, the application shall be advertised for thirty days, in such public newspaper or newspapers as the Ordin- ary shall direct, before persons shall be appointed to make diyision of the estate ; but in case notice shall be served, as aforesaid, on the parties not resident in this state, the publication, as aforesaid, shall be unnecessary. 2. The persons appointed to make division of any real estate, as aforesaid, shall, before they proceed to make such division, be severally sworn or affirmed, as the case may require, that they wiU honestly, faithfully, and impartially execute the trust reposed in them, and make division of the estate to the best of their skill, knowledge, and judgment. ' 3. A report of a division of real estate, made to the Ordinary at the next Prerogative Court after such division, shall not be approved of and made conclusive until four days after such report shall be made to the court, if the said court shall sit so many days after the making of the said report. IV...OF THE RE&ISTER AND SURROGATE. The register of this court, and the surrogate of each county, shall have full power and authority to take affidavits and depositions to be used in this court; and every affidavit. and deposition which shall be made or taken before the register, or before the surrogate of any county in this state, shall and is hereby declared to be as good and effectual, to all intents and purposes, as if the same were made or taken before the Ordinary himself. PEEEOGATIVE C015ET. 69 T...OP PRINTING EVIDENCE ON APPEAL. In case of appeal to the Prerogative Court from a sentence or decree of the Orphans Court on a caveat put in against proving a will, the party appealing shall cause the evidence which has heen reduced to writing in the court below to be printed, and shall deliver a copy thereof to the Ordinary, and also to the opposite party, at the time of the hearing the appeal, aiid on failure thereof the appeal shall be dismissed. 70 EULES 01" THE RULES OF THE Court of Erroes and Appeals. I...OF THE ORDER OF BUSINESS. 1. The court shall meet at ten o'clock in the forenoon of the first day* of every term, and at the same hour in the forenoon of every- day in the term, unless otherwise ordered. 2. The presiding ofBcer shall call the court to order, and proceed to business at the hour to which the court shall stand adjourned, or as soon thereafter as a quorum shall be present. 3. The clerk shall enter in the minutes the names of the members who shall be present at each session of the court during the term. 4. It shall be a standing regulation of the court to sit six hours on each day. 5. On the opening of the court on the morning of the first day of each term, the presiding officer shall inquire if any person has any motions for rules or orders, or other special applications, to make to the court ; and so much of said day shall be appropriated to the hearing of such matters as may be necessary, but no such motions or applications shall be heard at any other day in term, without the special permission of the court. * See Rule 38. COTIET OF APPEALS. 71 6. As soon as such motions and special applications have been disposed of, the presiding officer shall take up the list of causes, and they shall be brought on in the order in which they stand upon the list, unless otherwise ordered by the court. II...OF SETTING DOWN CAUSES. 7. All causes, whether on appeal or writ of error, may be brought on and heard upon twenty days' notice thereof in writing, given by either of the parties to the other, and on filing a copy or abstract of such notice in the office of the clerk, at least five days previous to the first day of the term at which such cause is to be set down for hearing. 8. All causes shall be noticed for hearing on the first day of the term, if at issue long enough to admit of such notice, if not, then for as early a day in term as circumstances wUl permit. 9. All causes noticed for hearmg or argument shall be set down by the clerk upon the calendar, or list of causes, in the following order, that is to say : writs of error shall have precedence according to the term to which they were made returnable, without regard to the time at which they were actually returned ; and appeals shall have precedence according to the time of filing the petition of appeal in this court. 10. If two or more writs of error shall have been made returnable to the same term, or if two or more petitions of appeal shall have been filed at the same term, they shall be set down on the list, and have priority according to the time of filing the notices of hearing. 11. It shall be the duty of the clerk to furnish the court^ on the opening thereof on the first day of each term, with a list of the 72 ETJLES OF THE causes noticed for hearing, in the order in which they shall he entitled to he heard according to these rules. III...OP THE HEARING. 12, {o-) The necessary papers in the cause shall he read without explanation or comment. (5.) After which one of the counsel for the appellant, or plaintiff in error, shall open the cause ; then two counsel for the opposite party may he heard in answer, and one counsel only for the opening party shall he allowed to reply ; hut in case of an appeal from an order or decree of the Court of Chancery, in a cause where there are several defendants who have separate and distinct interests, and who have different counsel concerned for them, the counsel for the respective defendants shall he heard in such order as the court may direct ; hut not more than two counsel shall be allowed to argue for any one defendant ; and if more than two counsel answer for the defendant, in that case two counsel may be heard in reply. (c.) In the argument of all causes, counsel shall he limited to a time, not exceeding three hours* each unless express permission be given for a longer specified time before the argument of the cause is commenced ; and the discussion shall then be limited to the time thus allowed. It shall be the duty of the presiding officer, in all cases, to enforce a strict observance of this rule. {d.y On all arguments arising incidentally before the court, or not before provided for, one counsel shall be heard in opening the matters in question or points, then two counsel for the opposite party may answer, and one counsel only for the opening party shall be allowed to reply. * See Rule 41. COUET OF APl^EALS. 73 (e.) Immediately upon the close of the argument of each cause, the court shall designate a time for holding a conference in relation to such cause. IT...OF THE STATE OF THE CASE. 1 3. Each member of the court shall, previous to the hearing of an appeal or argument of a writ of error, be furnished with a state of the case, or an abridgment of the pleadings and proofs, and of the petition of appeal, or of the record and assignment of errors (as the case may be) in the cause, to be mutually agreed upon by the parties, or their counsel, in case they can agree upon the same, and also with the points upon which the parties respectively mean to rely ; and in case the parties shall not agree upon a state of the case, or an abridgment as aforesaid, then such case or abridgment shall be made by the party who sets down the cause for hearing or argument, and signed by at least one counselor at law, and a copy thereof furnished to each member of the court and to the adverse party ; and in that case each party shall furnish, as last aforesaid, the points upon which he means to rely.* V...OF THE PETITION OP APPEAL AND DEPOSIT. 1 4. Hereafter, in all cases of appeals from any order or decree of the Court of Chancery, the party appealing shall file with the clerk of this court a petition of appeal, in which shall be briefly stated the order or decree complained of and the grounds of appeal, and shall serve a copy thereof on the. solicitor of the adverse party, if he has a solicitor, or if he has not, then on the adverse party, if to be found in this state, within thirty days after filing the said petition ; and * See Rule 42. 6 74 EITLES OF THE shall also, within the same time, deposit with tho clerk in Chanceiy one Imiidrod dollars, to answer the costs of the appeal, if the appel- lant shall not prosecute the same to effect ; and in default of serving a. copy of the petition, and making such deposits as aforesaid, proceedings maj^ be had on the order or decree appealed from, as if such appeal had not been made : and the said appeal may be dismissed by this court, with costs. VI...OF THE APPEAL. 15. Whenever a deposit shall be made as aforesaid, with the clerk in Chancerj'^, he shall, with all convenient speed, cause copies of the several orders and decree in the case to be made at the expense of the appellant (who shall be liable for the same in the first instance,) and deliver the same, with all the pleadings, deposi- tions, exhibits, and papers which may have been filed in his office relating to the cause, to the clerk of this court ; and the said deposit shall be subject, prior to any other lien, to the fees of the clerk in Chancery for the said copies. 1 6. The respondent shall file an answer to the petition of appeal within thirty days after service of a copy of the said petition and making the deposit aforesaid ; and in default thereof, the appellant maj^ enter a rule as of course, in vacation or term time, with the clerk of this court for the hearing of the said appeal, and may bring on the same, by giving and filing notice thereof, as hereafter mentioned. 17. If the respondent shall file an answer to the petition of appeal, the cause shall then be considered at issue, and either party may enter a rule for the hearing as of course, as mentioned in the last preceding rule. COTJE'r of APPEALS. tS TII...OP WRITS OF ERROR. 18. The party prosecuting a writ of error shall procure the same to be returned on the day in term, or the day after, to which it is made returnable, or show good cause why it is not returned, or on failure thereof, the said writ may be declared by this court null and void. 19. The plaintiff in error shall assign and file errors, and serve a copy thereof on the attorney of the defendant in error, if he has an attorney, or if he has not, then on the defendant in error, if to be found in this state, in thirty days after the writ of error shall be returned, with the transcript of the record or proceedings, unless diminution alleged, and then in thirty days after the return day of the certiorari; or, in default thereof, the plaintiff in error shall be nonprossed, unless this court shall see cause to allow further time. 20. The defendant shall join in error within thirty days after the expiration of the time limited or granted for assigning, filing, and serving errors, or the errors may be taken as confessed ; and the plaintiff may enter a rule of course, either in vacation or term time, with the clerk of this court, setting down the cause to be argued ex parte. 21. After joinder in error, either party may enter a rule for a concilium with the clerk of this court as of course, as before men- tioned, and notice the cause for argument. 22. When.a cause is regularly noticed for hearing, if the appellant or the plaintiff in error (as the case may be) shall not appear to argue the appeal or errors assigned, the decree or judgment of the court below shall be affirmed, with costs ; and if the respondent or defendant fails to appear, the appellant or plaintiff may proceed ex parte. 76 RULES OF THE 23. I^he States of the case, or abridgments of the pleadings and proofs, and of the petition of appeal, or of the record and assignment of errors, mentioned in the thirteenth rule, shall he furnished by the appellant or plaintiff in error and on failure thereof, the appeal or writs of error may be dismissed, with costs. VIII...OP DIMINUTION. 24. If the plaintiff in error shall allege diminution of the record, it shall be done on the day the writ of error shall be returned, or within eight days thereafter, and he shall thereupon apply to the clerk of this court for a certiorari of course and without special order ; and the plaintiff in error shall cause it to be duly returned within twelve days, or shall lose the benefit thereof, unless this court shall see cause to allow a further day for that purpose. IX...OP PRINTING AND SERVING COPT OP CASE. 25. -A-ll cases made and points prepared and furnished to the members of this court, shall be printed on good paper with a large margin, on which every tenth line shall be numbered ; and the party who makes the case shall, at least twenty days before the first day of the term at which such cause shall be first noticed for hearing, serve upon the attorney or solicitor of the adverse party, or transmit to such attorney or solicitor by mail, directed to him at his place of residence, three copies of the case, for the use of such party and his counsel, or the party who ought to have served such case shall not have the right to bring his cause on to be heard, without the consent of the adverse party, until after the expiration of twenty days after such copy of the case shall have been served. COITET OF APPEALS. 77 X...OF ORDERS OP COURSE. 26. Orders to assign errors, to join in error, to file petitions of appeal, and to answer such petitions, may be entered at any time by the clerk, of course in the minutes of the court, upon the written request of the solicitor, attorney, or counsel, at the peril of the party entering the same, with the like force and effect as if entered by direction of the court during its session. XI...OF SUBMISSIONS. 27. The parties to every cause, now or hereafter ponding in this court, shall have the liberty of submitting printed, instead of oral argument. XII...OF THE REMITTITUR. 28. The remittitur in case of a writ of error shall contain a copy of the judgment of this court, annexed to the writ of error and the transcript of the record of proceedings, as brought into this court, under the seal of this court, and signed by the clerk thereof; and the remittitur in case of an appeal, shall contain a copy of the decree or drder of this court annexed to the petition of appeal, and the matters thereto annexed, as brought into this court under the seal of this court, and signed by the clerk thereof XIII...OP THE MEMBERS OF THE COURT. 29. ^° member of this court shall, as attorney, solicitor, or counsel, be concerned in or argue any cause in this court, either upon error or appeal. 78 EULES OF THE XIV..,OF SPECIAL MOTIONS. 30. Special motions shall require a notice thereof, with copies of the papers, not records of this court, to be served at least two entire days before the motion is made. XT...OF ATTORNEYS AND SOLICITORS. 31. In cases of writs of error or appeals, the attorney on record or solicitor for the adverse party, if any, in the court below, shall be considered as attorney or solicitor, as the case may be, for the de- fendant in error or respondent in appeal ; and notices and papers served on him shall be deemed good service, until the defendant in error or respondent in appeal, shall give notice in writing to the plaintiff in error or the appellant in appeal, that he has employed another attorney or solicitor, naming in such notice the attorney or solicitor employed, or until appearance entered by a new attorney or solicitor. XVL..OF DECISIONS BY THE COURT. 32. When a motion or preliminary or interlocutory matter has been argued or submitted to the court, the presiding officer shall distinctly state the point or points to be decided, and shall then inquire of the court whether it is ready to decide the question; and if no objection is made by any member, the president shall ask each member his opinion, calling their names, and also expressing his own opinion, in such order as he may think proper, and shall then an- nounce the decision, as the result may be; but if any member, on the question being put as aforesaid by the president, shall request or propose that the court shall have a consultation on the matter, the counsel and audience shall withdraw ; and after the court shall have COUET OF APPEALS. 79 conferred and advised together of the matter, the doors shall be opened, and then the president shall, in manner aforesaid, call upon the members of the court for their respective opinions, and announce the judgment of the coui't in the matter, giving at the same time his own opinion thereon. The same course shall be pursued after the argument of a cause on the merits. 33. When the decision of a cause depends uppn distinct ques- tions, the decision of either which will dispose of the cause, the question shall be taken separately, if required by any three members. XTII...OP AFFIDAVITS. 34. Affidavits, to be used on any special motions or arguments in this court, shall be taken on four days' previous notice of the time and place of taking the same, at which time and place both parties may take affidavits. If such notice has not been given, no affidavits shall be read, unless a copy thereof has been served on the adverse party at least eight days before the first day of the term ; and in such case the adverse party may take and use on the argument •counter affidavits taken without notice. XVni...OF THE PRINTING- OF THE REASONS ASSIGNED. 35. It shall be the duty of the party bringing on the hearing of any case to obtain, and furnish in print, the reasons assigned in writing by the Chancellor for his decree, or by the Justices of the Supreme Court or Judge of the Circuit Court for their judgment, and in default thereof, the court may dismiss the appeal or writ of error, or postpone the argument, as the case shall require, unless it shall appear that the Chancellor, Justices, or Judges, decline assign- ng the said reasons. 80 BULKS OF THE XIX...OF THE RULES. 36. The rules of this court shall be considered as general rules for the government of the court and the conducting of causes ; and as the design of them is to facilitate business and advance justice, they may be relaxed or dispensed with by the court, in any case, where it shall be manifest to the court, that a strict adherence to them will work surprise or injustice. XX...OF PRINTED BRIEFS. 37. The parties, or either of them, may at the argument of any cause furnish each member of the court, and each of the opposite counsel, with printed bills or arguments, which shall contain the points relied on, with a citation of all the authorities to be used in the argument by them respectively, and cases may be submitted on such arguments. To prevent surprise, ten days' notice in writing, shall he given by the party intending to submit such arguments to the other.* XXI...OP THE HOUR OF MEETING. 38. That hereafter, the Court of Errors and Appeals, on the first day of the term, will meet at 11 o'clock, A. M. XXII...OF THE PREROGATIVE COURT. 39. Appeals from the Prerogative Court, shall be governed by the rules of this Court relating to appeals from the Court of Chancery. XXIII...OF BRIEFS, "WHEN FURNISHED. 40. The printed briefs provided for in the thirty-seventh rule, * See Rule 40. COITET OF APPmiLS. 81 may be furnished b}' each counsel at the commencement of his argument, without any notice to the opposifte party. XXIT...OP LIMITATION OP HEARING. 41. The time allowed by the twelfth rule \o each counsel, with- out express permission extending it, shall be ^mited to two hours and a half. XXT...OP THE POINTS TO BE PUR\NISHED. 42. The Court will hereafter require the points provided for in the thirteenth rule, to be furnished in all cases previous to the hearing. XXTI...OP ADJOURNMENT. \^ 43. The Court will hereafter adjourn on Fridays, unp the Mon- day next following. 82 NOTES OF PEACTIOE. N01 PRECEDENTS ISI'OTEs OF Practice PART I. Inteoduotohy note to the fihst edition. .. The following Precedents and Notes of Practice in the Court of Chancery of New Jersey, have been prepared, at the request of the Chancellor and many members of the profession, chiefly with a view to aid in pro- ducing uniformity in the details of the practice, and afford a useful manual to the younger members of the bar, and those whose duties in the oourts of law have allowed them but little leisure to collect or study the forms and modes of proceeding in this court. Simplicity and practical utility are the objects aimed at ; and to accomplish most successfully my purpose, I have arranged — first, the forms of pro- ceeding in a foreclosure suit of the simplest kind, in the order in which the}'- occur, from bill to execution ; then the forms in a case more complicated, yet not litigated ; then some of the ordinary forms which occur in cases special or litigated ; and lastlj^, the forms of proceeding in Divorce, for Surplus Money, Injunctions, Lunacy, &c. ; and I have annexed to these forms a brief running commentary, chiefly confined to the minutia of the practice. I state, thus clearly in the outset, my purpose and the narrow limit I propose to myself, that none who consult the following pages need be disappointed. The first edition of these Precedents, published in 1841, has long ceased to be on sale. Since then the business of the Court has greatly increased ; many new rules have been adopted ; new forms, approved by the Court have been intro- duced, legislative additions to, and- alterations of, of the practice, have taken place, making a new and amended edition necessary. BILL TO FORECLOSE. 83 The first step in commencing a suit in chancery is the hill. The folio-wing is the simplest POEM OP BILL TO PORBOLOSE. In Chancery of New Jersey. 2o the HoNOEABLE A. 0. Z., Chancellor of New Jersey : Humbly complaining, showeth unto your Honor, your orator, A. B. of the city of Trenton, in the county of Mercer and state of New Jersey, that on or about the twelfth day of March, in the year one thousand eight hundred and sixty-eight, one C. D. of the town- ship of Chesterfield, in the county of Burlington, and state of New Jersey, aforesaid, became and was justly indebted unto your orator in the sum of five hundred dollars, and being so indebted, the said 0. D. in order to secure the payment of the said sum of money, with interest, did make and execute, under his hand and seal, and deliver unto your orator, a certain bond or obligation, bearing date the same day and year last aforesaid, in the penal sum of one thousand dollars lawful money of the United States, with a condition there under- written, that if the said C. D. his heirs, executors, or administrators, should well and truly pay, or cause to be paid, unto your orator, his executors, administrators, or assigns, the just and full sum of five hundred dollars, lawful money aforesaid, on or before the first day of April, in the year one thousand eight hundred and with in- terest from the date thereof, then the said obligation should be void, otherwise to remain in full force and virtue, as in and by the said bond or obligation, and the condition thereof, reference being there unto had, will more fully and at large appear. And your orator further shows, that the said C. D. in order to secure the payment of the said sum of money above mentioned, together with the interest which should accrue or become due there- on, executed and delivered unto your orator, a certain indenture of mortgage, bearing date the same day and year last aforesaid, made by the said C. D. and Mary his wife, of the first part, and your orator A. B. of the second part, in and by which said indenture of mortgage the said parties of the first part did grant, bargain, sell, alien, release, convey, and confirm unto your orator A. B. the said 84 BILL TO FOEECLOSE. party of the second part, his heirs and assigns : All that {here de- scribe the premises as in the mortgage). Together with all and singular the tenements, hereditaments, and appurtenances thereunto belong- ing or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof; and also, all the estate, right, title, interest, use, property, possession, claim, and demand whatsoever, as well in law as in equity, of the parties of the first part to the said indenture of mortgage, and every part and parcel thereof, with the appurtenances : To have and to hold the therein above granted and described premises, with the appurten- ances, unto your orator A. B. the said party of the second part, his heirs and assigns, to his and their own proper use, benefit, and be- hoof forever. Provided always, and the said indenture of mort- gage was therein declared to be upon this express condition, that if the said party of the first part to the said indenture of mortgage, his heirs, executors, or administrators, should well and truly pay unto your oratQr, his certain attorney, executors, administrators, or as- signs, the said sum of money mentioned in the condition of the afore- said bond or obligation, with -the interest thereof, at the time and in the manner mentioned in the said condition, according to the true intent and meaning thereof, that then the said indenture of mortgage, and the estate thereby granted should cease, determine, and from thenceforth be null and void. And your orator further shows, that after the execution of the said indenture of mortgage, the same was, in due form of law, acknowledged by the said C. D. and Mary his wife, on the day of the date thereof aforesaid, before B. F. esquire, one of the judges of the inferior Court of Common Pleas in and for the said county of Burling- ton (or as the case may he), and duly recorded in the office of the clerk in and for the said county of Burlington, in Liber of Mortgages, pages , on the said twelfth day of March, in the year one thousaud eight hundred and , as by the certificate of the clerk of the said county, endorsed on the said indenture of mort- gage, more fully appears; and to which registry, and certificate thereof, so as aforesaid endorsed on the said indenture of mortgage, BILL TO FOKECLOSE. 85 your orator, for greater certainty, begs leave to refer, if it be neces- sary so to do. And your orator further shows, that the said sum of five hundred dollars, being the principal money mentioned in said bond or obliga- tion, and intended to be secured by said mortgage, yet remains due and unpaid to your orator, together with lawful interest, at the rate of seven per cent, per annum, from the twelfth day of March, one thousand eight hundred and , by reason whereof the said in- denture of mortgage, and the estate thereby mortgaged, have become absolute in your orator, subject only to the equity of redemption in this honorable court. And your orator further shows, that the said defendants, or one of them, have, from the time of the execution and delivery of the said indenture of mortgage, possessed and enjoyed, and still do possess and enjoy, all and singular the said mortgaged premises, and have at all times received, and still do receive, the rents, issues, and profits thereof; and that no part thereof hath been collected or re- ceived by your orator, and that no proceedings at law, or otherwise, have been had by your orator, or any other person, for the recovery of the money mentioned in the said bond or obligation and indenture of mortgage, and that no part thereof hath been paid. And that your orator, or some other person or persons for him, has frequently and in a friendly manner applied to the said defendants, or one of them, and requested payment of the principal and interest money due to your orator upon the said bond or obligation. And your orator well hoped that they, or one of them, would have complied with such reasonable request, and would have paid the said principal and interest money, as they in equity and good conscience ought to have done ; yet the said defendants have wholly neglected, and still do neglect and refuse to pay the same, or any part thereof. Whereupon your orator respectfully solicits the aid of this honorable court in the col- lection thereof; and to that end prays that the said defendants may be enjoined upon their corporal oath, true, full, and perfect answers to make to all and singular the charges above set forth, fully and partic- ularly, according to the best of their knowledge, information, and belief, as if the same were herein again repeated, and they inter- 86 BILL TO I'OEEOtOeE. rogated thereto ; and that the said defendants maybe decreed to pay to your orator the said principal sum of money above mentioned, with all the arrears of interest now due, or hereafter to become due and payable thereon, together with all the costs and charges in this behalf expended, by a day, to be appointed by this honorable court ; and, in default thereof, that the defendants above named, and all persons claiming and to claim the same, may be foreclosed of and from all equity of redemption and claim of, in, and to the said mort- gaged premises, and every part and parcel thereof, with the appurte- nances ; and that they deliver over unto your orator all deeds, de- mises, and writings whatsoever, relatiug to or concerning the same ; and that all and singular the said mortgaged premises, with the ap- purtenances, may, by the order and decree of this honorable court, be sold, and out of the money arising from the sale thereof, your orator may be paid the full amount of the principal sum due on the said bond or obligation and indenture of mortgage, and all interest money due and to become due thereon, together with all costs and charges by your orator in this behalf sustained ; and that your orator may have such other and further relief in the premises as may seem proper and shall, be agreeable to equity and good conscience; and that the state's writ of subpoena, issuing out of and under the seal of this honorable court, may be directed to the said C. D. and Mary his wife, therein and thereby commanding them, on a certain day and under a certain penalty, therein to be specified, to be and appear before your Honor, in this honorable court, then and there to answer all and singular the premises contained in this your orator's biU of complaint, and to stand to and abide by such order and decree in the premises as shall seem meet and agreeable to equity and good conscience. And your orator, &c. a H. Solicitor for, and of counsel with complainant. Endorsed. A. B. Complainant, and J- Bill to foreclose. C. D. and ux. Defendants. G. H. Sol. 24 folios. SUEPCENA Tf.) ANSWEE. 87 In drawing the bill, as much brevity should be observed as is consistent with correct pleading, and this remark is peculiarly applicable to all pleadings in chancery, the costs of which are tax ed by the folio. The legislature and the court have hitherto relied implicitly upon the integrity of the profession, dis- tinguished as it is, in New Jersey, by a high sense of honor, for the protection of parties against unnecessary costs in this particular. The biU should be signed by sc.licitor and counsel, and filed with the clerk before subpoena is issued. The form given above is for f he foreclosure of a mortgage, made by a man and wife, where there are no prior or subsequent mortgages or judgments which operate as hens on the "mortgaged premises, and the parties are all living and have not parted with the ir interest. The first business of the f olicitor, when a bond and mortgage is placed in his hands for collection, is to aa certain, by searches in the proper offices, 1. Whether the mortgaged premises "remam the property of the mortgagor. 2. If so, whether he or any prior 'owner has given any other mortgages on the same property which remain uncancelled. 3. Whether any judgments have been obtained against him or any prior owner, which operate as existing liens on the same. The fees for th e searches necessary to ascertain these facts must be paid by the complainajit, as they are not allowed in the taxed bill of costs. 7' " - The soUcitor is entitled to thirty cents a foho for drawing and engrossing the bill, and the clerk tii.-enty cents for entering the action, and twelve cents for filing the bill. Upon filing the bUl in the clerk's oflSce, the solicitor issues a subpoena directed to the defendantfj. It is usual to get subpoenas sealed and signed in blank, at the clerk's office , to be issued as occasion may requu:e. To every su'opoena ad respondendv/m must be added the following note : — Notice. — The defendants are not required to appear at Trenton in person at the return day, but must cause a written appearance to be entered by a solicitor or otherwise, and answer the bill of complaint within the time required by law. FORM OF SUBPCENA TO ANSWER. New^Jersey, to wit. — The State of New Jersey. To C. D. and Mary D. his wife, greeting : We command you, that you personally appear before our Chancellor, in our Court of Chancery, on the of next, at Trenton, to answer to a bill of complaint exhi- bitfid against you in our said court, by A. B. and to do further and SUEPCENA T0\ ANSWER. receive what our said court shall have\ considered in that behalf: and this .you are not to omit under the penality of five hundred dollars. Witness, his Honor A. 0. Zi Chancellor of our said state, at Trenton, the day of \ , in the year of our Lord one thousand eight hunjlred and seventy -two. H. S. L. Clh. G. H. Sol. of complt. Endorsement on subpoena. In CHANci^;BY op New Jersey, Between A. B. Complainant, and C. D. and ux. De- fendants. Eeturnable day of , 18 — G. K, Sol Sheriff^s return, endorsed hy him. " Served." I. K. Sheriff. Fees. Serving writ, $2.00 Mileage and return, 2.12 ■- Subpoena tAanswer. $4.12 Process of subposna may be made returnable at any day except Sunday. The subpoena should be tested as of the day it Is issued. The names of all the defendants residing in the same county must lie inserted in the same subpoena. Every subpoena must be signed and sealed by the clerk, and subsj;ribed or endorsed by the sohcitor of the complainants, by whom it is issued. It must be served by the sheriff, on the person to whom it is directeVi, per- sonally, or a copy left at his dweUing house or usual place of abode, ten Wtire days prior to its return. But a written appearance, or written acknowledgment of service, signed by a defendant or his solicitor, and filed with the clerkihas the same force and effect as service by tlie sheriff, and in that case no fee\for service is allowed. In case of legal disability in the sheriff, it may be served by a coroner. master's kepoet. 89 The taxable fees are — to the Solicitor, for drawing and engrossing the subpcena, seventy cents ; Chancellor, for the seal, forty cents ; ClerJc, for filing the subpoena and return, twenty -four cents ; Sheriff, for service on first defend - ant two dollars, on second defendant one dollar and fifty cents, on every other defendant, fifty cents each, and two cents mileage, out an in, for every mile, to be computed from the court house of the county where the service is made ; but the whole mileage not to exceed two dollars on one subposna, and service on husband and wife ia to be charged as service on one defendant only. He is also entitled to twelve cents for making return. The subpcena being returned served upon the defendant or defendants, they have forty days in which to appear and plead, or demur, and sixty days to answer the complainant's bill. After the sixty days have expired, apply at the clerk's office, and if no plea, answer, or demurrer has been filed, go before a master in chancery and submit to him the complainant's bond and mortgage, and he will make a report as foUows : FORM OF MASTER'S REPORT. Between A. B. Complainant, and C. D. and Mary his wife Defendants. In Chancery of New Jersey. Master's report. I, L. M. one of the Masters of the High Court of Chancery of the State of New Jersey, do herehy certify and report to his Honor the Chancellor, that I have seen and inspected the bond and mortgage (marked Exhibits A and B) mentioned in the said bill of complaint in this cause : and that there is due to the said complainant, on this day, on the bond, the payment whereof was intended to be secured by the said mortgage, the sum of five hundred and thirty-five dollars, lawful money of the United States, for principal and interest on the said bond, as by the schedule hereunto annexed will more fully appear. All which is most respectfully submitted. L. M. Dated, July, 18—. 7 90 MASTER S EEPOET. Schedule. Bond, bearing date the day of , 1 8 — , in the penal sum of $1000, conditioned for the payment of $500 in one year, with lawful interest, secured by the mortgage in the complainant's bill mentioned, Interest thereon one year from the day of , 18 — , to the day of , 18 — , Amount due complainant this day of- 18- $500 35 $535 L. M. Endorsed. Between A. B. Complainant, and 0. D. and Mary his wife, Defendants. Fees endorsed. Making report, .67 Drawing do., 2 fol., .28 Schedule, 1 fol., .10 Marking 2 exhibits, .20 In Chanoeey of New Jersey. ^'Master's report. G. H. Sol $1.25 , The master, upon makiag the report, will mark the bond and mortgage as exhibits in the cause, endorse his fees on the back of the report, and hand the report, with the bond and mortgage, to the solicitor. The practice is for the solicitor to pay the master his fees on the report, as the clerk keeps no account with the masters and only receives the fees of the Chancellor and his own. The master should be particular to endorse his fees on the back of his report, that the amount may be correctly charged in the bill of costs. The master should draw the report himself, the practice of merely signing a report drawn by the solicitor, is not approved by the court. Taxable fees. — To the solicitor, for attending the master making report, three dollars ; to the master, for making a common report, (that is, where there is no order of reference) sixty-seven cents ; for drawing and engrossing the same, bECEfifi. 91 fourteen cents a folio, for scheduling, ten cents a folio, for mamng every exhibit, ton cents ; clerk, for filing the report and schedule, twelve cents. Upon obtaining the report, the complainant's solicitor prepares at once his final decree. FORM OP DECREE. In Chancery of New Jersey, of the term of , in the year of our Lord one thousand eight hundred and seventy-two. Between A. B. Complainant, and C. D. and Mary his wife, Defendants. Decree. This cause being opened to the court, by Gr. H. of counsel with the complainant, and it appearing that process of subpcena for the appearance of the defendants hath been duly issued, and returned served by the sheriff of the county of Mercer ; and that the defend- ants have neglected to file any plea, demurrer, or answer to the complainant's bill, in the clerk's ofiSce, within the time limited by law : — "Whereupon, and upon reading and filing a report, made in this cause by L. M. esquire, one of the masters of this court, bearing date on the day of in the year of our Lord one thousand eight hundred and , by which it appears that there is due to the complainant, for principal and interest on his mortgage, the sum of five hundred and thirty dollars ; and no cause being shown to the contrary, it is, on this day of , in the year of our Lord one thousand eight hundred and , at a Court of Chancery, held at Trenton by A. 0. Z. Chancellor of the State of New Jersey, ordered, adjudged, and decreed, That the said bill of complaint be taken as confessed, and the master's report, and all the matters and things therein contained, do stand confirmed, and that the complainant is entitled to have the said sum of five hundred and thirty dollars, with the lawful interest thereof, to be computed from the date of said repert together with his costs of this suit, to be taxed, raised, and 92 DECEEE. paid out of the mortgaged premises : And it is accordingly further ordered, adjudged, and decreed, That so much of the estate and premises in the said mortgage contained, as will be sufScient to raise and satisfy the said debt, interest, and costs, be sold ; and that a writ of fieri facias do issue, for that purpose, out of this court, directed to the sheriff of the county of , (where the land lies) commanding him to make sale, according to law, of so much of the said mortgaged premises as will be sufficient to satisfy the said debt, interest, and costs, and that he pay the same to the complainant or his solicitor; and that in case more money should be raised by the sale than shall be sufficient to answer such payment, such surplus money be brought into this court, and deposited with the clerk, to abide the further order of this court, unless otherwise disposed of by the order of the court ; and that the said sheriff make retura to this court of his proceedings, by virtue of the said writ : And it is further ordered, adjudged, and decreed. That the defendants stand absolutely debarred and foreclosed of and from all equity of redemp- tion of, in, and to so much of the said mortgaged premises as shall be sold, as aforesaid, by virtue of this decree. A. O.'Z., Ch. If the decree, as drawn, conforms to the master's report, the Chancellor will sign it. The solicitor then carries it, with the report, to the cleric, who files them immediately. The practice of getting the report before the complainant is entitled to his decree, is irregular, because interest is charged from the date of the report upon the interest which has accrued up to the day of the report, and the party is not entitled to interest upon interest, until his cause is ripe for final decree. Taxalle fees on decree. — For the motion for decree final, eighty cents to the solicitor, thirty-two to the clerk, and seventy-five to the Chancellor ; to counsel on final hearing, four dollars ; and for drawing and engrossing decree, thirty- two cents a folio ; Chancellor for signing, two dollars and fifty cents ; dark for filing decree, twelve cents ; and for enrolling the preoedings, eight cents a folio. The "proceedings" in the above case embrace only the bill, report, and decree ; and the solicitor in drawing the costs may easily compute the number of folios. EXECUTION. 93 Ten days must elapse after the filing of the decree, before execution can issue, or the enrollment be signed by the Chancellor, that the defendant or defendants may have an opportunity to inspect the proceedings, and apply for any relief to which they may suppose themselves entitled. Upon the expiration of that period the solicitor of the complainant prepares his costs and execution. FORM OF EXECUTION. New Jeksey, to wit. — The State of New Jersey to the sheriff of ^ — ' — ^ the county of , greeting : Whereas, on the day of \ L.S. \ ) in the year of our Lord one thousand eight hundred * * seventy-two, by a certain decree made in our Court of Chancery, before our Chancellor at Trenton, in a certain cause therein depending, wherein A. B. is complainant, and C. D. and Mary hie wife are defendants. It was ordered, adjudged, and de- creed, that so much of certain mortgaged premises, with the ap- purtenances, in the bill of complaint in the said cause particularly set forth and described, that is to say : all that, &c. (Describe the premises as in the bill.) Together with all and singular the rights, liberties, privileges, hereditaments, and appurtenances thereunto be- longing or in anywise appertaining, and the reversions and remainders, rents, issues, and profits thereof, and all the estate, right, title, interest, use, property, claim, and demand of the said defendants of, in, to, and out of the same, as may be needful and necessary for the purpose, be sold to pay and satisfy unto the said complainant the sum of five hundred and thirty-five dollars, the principal and interest secured by a certain mortgage given by C. D. and Mary his wife, the defendants, to A. B. the complainant, bearing date the twelfth day of March, in the year of our Lord one thousand eight hundred and , to- gether with lawful interest thereon, from the date of the said decree until the same be paid and satisfied, and also the costs of the said complainant ; and that for that purpose, a writ oi fieri facias should issue, directed to the sheriff of the county of , commanding him to make sale as aforesaid ; and that the surplus money arising from such sale, if any there be, should be brought into the said court, subject to the further order of the said court, as by the said decree, remaining as of record in our said Court of Chancery at Trenton, doth and say more 94 EXECUTION. fully appear: And whereas the costs of the said complainan,t have been duly ta.xed at dollars and cents. Therefore, you are hereby commanded, that you cause to be made of the premises aforesaid, by selling so much thereof as may be needful and necessary for the purpose, the said sum of five hundred and thirty-five dollars, together with lawful interest thereon, as afore- said ; and also the said sum of dollars and cents, of costs ; and that you have those moneys before our said Chancellor in our Court of Chancery aforesaid, at Trenton, on the next, to render to the said complainant, and also the surplus money, if any there be, to abide the further order of our said court, according to the decree aforesaid. And you are to make return at the time and place afore- said, by certificate under your hand, of the manner in which you shall have executed this our writ, together with this writ. Witness, A. 0. Z., esquire, our Chancellor, at Trenton aforesaid, the day of in the year of our Lord one thousand eight hundred and . H. s. L. cm. G. H. Sol. Endorsed. Between In Chanceey of New Jersey. A. B. Complainant, and C. D. and Mary his wife, [Defendants. Ketumable to February Term, 18 G. H., Sol. Levy. Decree for $535.00 Costs taxed at 45.68 Interest from April 8, 18 until paid Fi. fa. for sale of mortgaged premises. Besides sheriff's execution fees. EXECUTION. 95 The execution must be sealed, signed, and recorded by the clerk before it issues ; and must be subscribed or endorsed by the sohcitor. The endorsement must state the term to which it is returnable, the amount of decree and costs to be levied, and the day from which interest is to be calculated. The interest runs on the debt from the date of the master's report — on the costs from the date of the decree. The execution should be tested as of the day it issues, and be made returnable at the next ensuing term. The description. of the premises to be sold, in the execution, must conform, hterally, to the description in the bill. If an error in the description occurs in the bill, it must be amended in that particular, for the clerk, when he examines and compares the writ, wiU make it conform to the bUl and decree in all things. When the execution is recorded, the clerk will endorse a certificate on the back of it, under his hand, that it has been recorded and examined by him, and deKver it to the solicitor or sheriff, as he may be directed. Where the mortgaged premises to be sold lie in two counties, the decree will direct the execution to issue to a master of the court, but in no other case, unless peculiar circumstances exist, rendering it necessary in the opinion of tlie Chan- cellor; and in such oases the words " R. S. one of the Masters in Chancery of New Jersey," are used, instead of " the Sheriff of the county," &c. — in other respects the form of decree and execution are the same. The fees on execution are^To the solicitor for drawing and engrossing, thirty cents a folio : chancellor for seal, forty cents : clerk for recording, eight cents a folio : and, when returned, filing it and the return, twenty -four cents : and for taxing and filing sheriff's costs, thirty-seven cents. When the solicitor has prepared his execution, he will draw his bill of coats and submit it for taxation to the clerk, who will tax it, and insert the amount in the e.xeoution. The following is a bill of costs, embracing the proceedings in such a case as the foregoing. From the enlarged schedule of costs in this work, the solicitor will be able, readily, to add to the bill the proper items for every additional proceeding which may become necessary in the progress of his suit. 96 BILL OF COSTS. FORM OF BILL OP COSTS. In Chancery of New Jersey. Between A. B. Complainant, and C. D. and ux. de- fendants. Costs. Vac. and February Term, 1872. Retaining fee for Sol and Counsel . . Drawing an eng. bill, 24 fol. 30 cts. . Filing bill 12, entering action 20. . . . Drawing eng. and sealing subpoena . . Filing do. and ret., and sheriff's fees. Term fees, &c Vac. and May Term, 1872. Counsel attending Master : . . Master's fees on report, 3 fol Filing report Motion for decree Counsel on hearing Chancellor on decree Drawing and eng. do. 6 fol. 32 cts. Filing decree Enrolling proceedings, 33 fol Term fees, &c Vac. and October Term 1872. Drawing and eng. execution, 10 fol Sealing and recording do Filing do. and return Taxing and filing sheriffs fees Term fees, &c Drawing, engrossing, taxing, and fih'ng costs do 3 fol. Taxed at forty-five dollars and sixty- eight cents, October 20, 1872 H. s. L., cm. S.&C. 4.00 7.20 .40 1.60 3.00 .80 4.00 1.92 1.60 3.00 1.60 .90 $30.02 4.05 5.84 5.77 $45.68 Ch. .40 .75 2.50 .40 Clk. .32 .24 4.05 .12 .32 .12 2.64 .80 .24 .37 .67 5.84 Als. 4.12 1.65 5.77 WRIT OF ASSISTANCE. 97 The first item in the foregoing bill is four dollars for solicitor and counsel — that is, two dollars for each. The amount of sheriff's fees appear in the endorsement on the subpoena. The solicitor will see that the sheriff's fees are correct, as the clerk will only allow the solicitor, in his taxation, such fees as the sheriff is legally entitled to, without regard to the amount endorsed. Only three term fees are allowed in any cause. Solicitors are allowed twenty cents a folio for drawing all pleadings, orders, and executions, and ten cents a folio for engrossing them. But for decrees, twenty cents for drawing, and twelve for engrossing, are allowed per folio. For further explanations of the principles which govern in taxing costs, see notes to the general schedule of costs. WRIT OF ASSISTANCE. In case the purchaser at the sheriflfs or master's sale is denied possession of the premises, he will proceed by serving upon the party in possession the fol- lowing : NOTICE AND DEMAND OF POSSESSION. To a 1). 5 Sir: — Immediate possession is hereby demanded of the (lierel- describe the premises) being the same premises granted and conveyed - to me in fee by S. H. sheriff, of the county of A., by deed herewith shown, and dated day of 187—, sold by him and purchased by me at sheriff's sale, by vii-tue of a writ of fieri facias, issued out of the Court of Chancery of this state, in a suit wherein A. B. was complainant, and you C. D. {and others) were defendants, for the foreclosure and sale of said premises, and I do hereby authorize the bearer of this notice, to take and receive the possesion of said premises for me. A. B. Dated day of 187—. PROOF OF SBRTICB OF NOTICE. New Jersey ss. — A. B. being duly sworn, saith — that on the day of =• last, the said deponent personally demanded of the defendant, C. D., the possession of the premises mentioned and 98 PETITION FOE WEIT. referred to in the within written notice and demand, and also per- sonally served upon the said C. D. a written notice and demand of possession of said premises, of which the within is a true copy, and at the time of making said demand this deponent showed to the said C. D. the deed by the sheriff of the county of A. to this deponent for the said premises, which said deed is referred to within. Sworn, &c. A. B. PETITION FOR WRIT. In Chancery of New Jeksey. Between A. B., compl't and C. D., deft. Petition. To the Honorable A. 0. Z., Chancellor of the State of New Jersey. The petition of A. B., of the , in • , respectfully showeth, that by virtue of the final decree made in the above cause, on the day of last, a writ of fieri facias, tested on or about the day of last, issued out of this honorablij court, directed to the sheriff of the county of A., commanding him to make sale of [here describe the premises as in the'/, fa.'] ; and your petitioner further shows, that in pursuance of said writ oi fieri facias, S. H., then and stiU being sheriff of the said county of A., having first in due form of law advertised the said premises to be sold at public vendue, the said sale to be held at the M. Hotel in the city of A., in said county, on the day of last^ at the hour of ten o'clock in the forenoon, at the said place and hour, did accordingly offer and expose said premises for sale at public vendue, under and by virtue of said writ of fieri facias ; and thereupon, your petitioner having bid for the said premises the sum of five hundred dollars, and no other person having bid so much therefor, the said sheriff did then and there open and publicly, in due form of law, strike off and sell the said premises for the said sum to your petitioner, he being then and there the highest bidder for the same. PETITION FOE WRIT. 99 And your petitioner further shows, that afterwards, to wit, on the — day of the same month of last, the said sheriff did execute and deliver unto your petitioner a deed of conveyance of said premises, bearing date the day of last, wherein and whereby the said sheriff did grant, bargain, sell, assign, transfer, and convey unto your petitioner, his heirs and assigns, the premises above described, with the appurtenances, to have and to hold to his own use and benefit for ever, in as full, ample, and beneficial a manner as by virtue of the said writ of fieri facias the said sheriff might, could, or ought to convey the same, which said deed of con- veyance was afterwards duly acknowledged by the said sheriff before "W. "W. esq., master in chancery, and afterwards duly recorded in the clerk's ofBce of the said county of A., as by reference to said deed will more fully appear. And your petitioner further shows, that the said premises, at the time of filing the bill of complaint in said cause, were and now are in the possession and occupation of the defendant, C. D., and that he then enjoyed and now enjoys the rents, issues, and profits thereof. And your petitioner further shows, that smce the sale of the said premises, and the execution and delivery of the said sheriff's deed therefor to your petitioner, your petitioner has frequently applied to the said 0. D., and requested him to deliver up the possession of the said premises to your petitioner, but that the said C. D. has hitherto refused, and still does refuse to comply with such reasonable request of our petitioner ; that, on the day of last, your petitioner called upon the said 0. D., and exhibited to him the said sheriff's deed to your petitioner for said premises, and demanded possession thereof, but that the said C. D. absolutely refused to de- liver the same to your petitioner. Your petitioner therefore prays that an order may be made by this honorable court, directing and commanding the said 0. D. and his confederates, or any one holding under the said 0. D., forthwith to quit said premises, and to deliver the possession thereof to your petitioner, and that he pay the costs of this application, and that your petitioner have such other and further relief in the premises 100 NOTICE OF MOTION. as may be necessary and proper ; and your petitioner, as in duty bound, will ever pray, &o. G. H., Sol. and of cowmel for petitioner. New Jersey, ss. — A. B., of full age, being duly sworn, on hjs oath saith — that he is the petitioner named in the above petition ; that the matters and things therein set forth, so far as they re'.ate to his own acts and deeds are true, and so far as they relate to the acts and deeds of others, he believes them to be true. A. B. Sworn and subscribed before me, this day of A. D. 187—. W. D. C, M. c. c. NOTICE OF MOTION. A. B., Complainant, To C. D., Defendant. To C. D., defendant in the above entitled cavse. Please take notice, that I shall apply to the Chancellor of this state, at the State-house in Trenton, on the day of next, at ten o'clock in the forenoon, or as soon thereafter as counsel can be heard thereon, upon a petition for an order directing and com- manding you to quit the premises in said petition described, and to deliver possession thereof unto C. D., the purchaser thereof at the sheriff's sale under the decree in the above cause, and also directing you to pay the costs of this application. Notice of Motion for Possession. G. H., Sol. of petitioner. Dated 187—. New Jeesey, ss. — A. B., of full age, maketh oath and saith — that he served a notice, of which the foregoing is a true copy, on C. D., by delivering the same to the said C. D., to whom the same is directed, personally, on the day of , instant, and informing him of the object of said notice. A. B. Sworn and subscribed before me, this day of , A. D. 187—. "W. D. C, M. c. c. OEt)EE FOE P0SSE8Si01ir. IQl ORDER FOR POSSESSION. In Chancery of New Jersey. Between A. B., Compl't ^ s-nd y Order for possession. C. D., deft. • J It appearing to the court, by the petition filed by the complainant, A. B., and the afiSdavit annexed thereto, that the said A. B. pur- chased the mortgaged premises, described in the bill of complaint and foreclosed in the above stated case, at the sale made thereof by the sheriff of the county of A., by virtue of the execution issued in said cause, and that the said defendant, C. D., who at the time of filing said bill of complaint and making the decree in said cause owned the equity of redemption, and was in the possession thereof, retains the possession of the said mortgaged premises, and refuses to deliver up the possession thereof unto the said A. B., the purchaser, and now owner thereof, and that the said A. B. hath prayed the aid of this court ; and it appearing that due and legal notice of this application hath been given to the said 0. D. — It is therefore, on this day of , in the year of our Lord one thousand eight hundred and , ordered, that said C. D., defendant in this cause, on being served with a certified copy of this order, forthwith deliver up to the said A. B. the possession of the mortgaged premises mentioned and described in the pleadings and decree in this cause, and in the deed of con- veyance executed by the sheriff of the county of A. to the said A. B. in pursuance of said decree and execution thereon, and upon such service, accompanied with demand of possession, and refusal thereof, the said A. B. may apply for a writ, of assistance, according to the course of this court in such case. A. O. Z., C. PROOF OP SERVICE OF ORDER FOR POSSESSION. New Jersey, ss. — T. P., of full age, being duly sworn, on his oath saith — that he served a copy of the order of this court made in this 102 MOTION FOS WRIT OF ASSISTANCE. cause, said order bearing date the day of , instant, and duly certified under the seal of this court, and the hand of the clerk, per- sonally, on C. D., said service being made on the day of , instant, by delivering the same to him ; and at the time of such service, this deponent, in behalf of, and as the agent of the said A. ' B., demanded of the said C. D., the possession of the mortgaged premises mentioned and set forth in the petition of the said A. B. and in said order pursuant to said order ; that the said C. B., the possessor, refused to deliver up the possession of the said premises to the said A. B., or to this deponant, as the agent of the said A. B. T. P. Sworn and subscribed before me, this day of , 187—. 0. P. S., M. 0. c. NOTICE OP MOTION FOR "WRIT OP ASSISTANCE. To C. D., defendant in the above cause. Please take notice, that I shall apply to the Chancellor of this state, at his chambers in , on , the day of , in- stant, for an order for a writ of assistance, and for a writ of assis- tance to cause you to quit the premises described in the petition 'above referred to, and to deliver possession thereof unto A. B., the purchaser thereof, at the sfieriif 's sale, under the decree in the above cause. G. H. Sol. of A. B. Dated , 187—. ORDEE FOE WEIT OF ASSISTANCE. 103 ORDER FOR WRIT OF ASSISTANCE. In Chancehy of New Jersey. Between A. B. compl't, "1 ^11" > Order for writ of assistance. C. D. deft. J It appearing to the Chancellor, that by an order of this court, made on the day of , instant, in the above stated cause, upon the petition filed by A. B. against the defendant. C. D., the said C. D., on, being served with a certified copy of said order, was directed forthwith to deliver up to the said A. B., the purchaser under the sheriff's sale, the mortgaged premises mentioned in the bill of complaint and decree of foreclosure in said cause, granted and con- veyed to the said A. B., by the sheriff of the county of A. ; and it further appearing to the Chancellor that the said A. B., the said petitioner, hath caused a certified copy of said order to be duly served on the said 0. D., and did duly demand possession of the said mortgaged premises purchased by him to be delivered up to him by the said C. D., pursuant to the said order, and that the said C. D., hath refused to deliver up the same, in contempt of the ordej of this court ; and it also appearing that due and legal notice of this applica- tion hath been given to the said C. D., it is thereupon, on this day of , in the year of our Lord one thousand eight hundred and , ordered by the Chancellor, on motion of G. H., solicitor of the said petitioner, that a writ of assistance do issue, according to the course of this court and under the seal of this court, directedto the sheriff of the county of A., commanding the said sheriff to enter into the said mortgaged premises so purchased by the said A. B., and from thence remove the said C. D. and his confederates, and any one claiming under the said C. D., and in possession thereof, and to put and place the said A. B., or his lawful attorney or agent, in full and peaceable possession thereof; and it is further ordered, that the said C. D. do pay the costs of the petition and proceedings in this cause to be taxed. A. 0. z., a 104 WEIT OF ASSISTANCE. JL.S.[ WRIT QF ASSISTANCE. New Jersey, ss — The State of New Jersey to the sheriff of the county of A., greeting: Whereas it has been represented to us, in our Court '* of Chancery, in a certain cause therein pending, wherein A. B. is complainant, and C. D. defendant, that by an order, made in said cause, bearing date the - — - day of in the year of our Lord eighteen hundred and , it was ordered that the said C. D. should forthwith deliver up to A. B., or to his lawful attorney or agent, the possession of the mortgaged premises mentioned and described in the pleadings and decree in said cause, and in the deed executed by the sheriff of the county of A. to the said A. B., in pursuance of said decree, on being served with a certified copy of said order ; and that the said C. D., who was in possession of said premises, has been duly served with a certified copy of said order, and required to deliver up the possession of said premises pursuant thereto, which he has refused, and still refuses to do. Now, there- fore, we command you, that you do forthwith eject and remove the said C. D., from the said premises, and all persons claiming under him, or in possession of any part thereof under him, and that you deliver possession thereof to the said A . B. or to his solicitor, or other authorized attorney or agent : and hereof fail not at your peril. — "Witness A.. 0. Z., Chancellor, at Trenton, this day of — — in the year of our Lord one thousand eight hundred and . G. H., Solicitor. H. S. L., Cl'k. NOTES OP PEACTIOE. 105 PRECEDENTS AND I^OTES OF Practice. PART II. The following ia the form of a bill to foreclose where the mortgagor and mort- gagee are both deceased, the former leaving a widow and heirs and an adminis- trator, who are made parties, and the latter having left a will, which has been proved by the executors, who are the complainants ; and where there is a second mortgage and a judgment outstanding, and one of the heirs of the mortgagor has conveyed away his interest, and another has died, leaving a widow and infant children ; and part of the defendants are non-residents. BILL TO FORECLOSE. In Chancery of New Jersey. To flis Honor, A. 0. Z. of the state of New Jersey. Humbly complaining, show unto your Honor your orators John Dob and Eichard Eoe, executors of the last will and testament of John Smith, late of the township of , in the county of and state of New Jersey, deceased, that John Den, late of the township of , in the county and state aforesaid, deceased, being in- debted to the said John Smith, in his lifetime, in the sum of two hundred dollars, for money lent and advanced by the said John Smith to the' said John Den, did execute and deliver unto the said John Smith a certain bond or writing obligatory, bearing date the day of , A. D. , in the penal sum of four hundred dollars, lawful 8 106 BILL TO FOEECLOSE. money of the state aforesaid, conditioned for the payment by the said John Den, his heirs, executors, administrators, or any of them, to the said John Smith, his certain attorney, heirs, executors, admistrators or assigns, the just and full sum of two hundred dollars as aforesaid, on or before the day of then next ensuing the date there- of, with lawful interest for the same, without any fraud or further delay, as in and by the said bound or writing obligatory now in the custody of your orators, and ready to be produced as this honorable court shall direct, and to which for greater certainty your orators pray leave to refer, may more fully appear. And your orators further show, that the. said John Den, being, or pretending to be, seized in fee, or of some other good and sufficient estate of inheritance of, in, and to the lots or parcels of land herein- after particularly described and set forth, in order to secure the payment of the said sum of two hundred dollars mentioned in the condition of the said bond or writing obligatory, and the interest that might accrue thereon to the said John Smith, his executors, administrators, and assigns, did, together with Rebecca his wife, by a certain deed or indenture of mortgage, under their hands and seals duly executed, bearing date on the said day of , A. D. — — , as well for consideration of the said debt or sum of two hun- dred dollars, and for the better securing the payment thereof, with the interest, unto the said John Smith, his executors, administrators and assigns, in discharge of the said bond and obligation above reci- ted, as for and in consideration of the further sum of one dollar, unto the said John Den well and truly paid by the said John Smith at and before the ensealing and delivery thereof, the receipt whereof was thereby acknowledged, did grant, bargain, sell, release, and con- firm unto the said John Smith, his heirs and assigns, all the following, described lots or parcels of land situate in the township of , in the county of Mercer and state aforesaid (^%ere desarihe the premises as in mortgage.^') Together with all and singular the buildings, &c., &c., to have and to hold the said lots or parcels of land, heredita- ments, and premises, herein granted, or intended so to be, with the appurtenances, unto the said John Smith, his heirs and assigns for ever ; provided ahoays, and the said indenture of mortgage was therein BILL TO FORECLOSE. lOY declared to be upon this express condition, that if the said party of the first part to the said indenture of mortgage, his heirs, executors, or administrators, should well and truly pay, or cause to he paid, unto the said John Smith, his certain attorney, executors, adminis- trators, or assigns, the said sum of two hundred dollars, together with the lawful interest thereon, at the time and in the manner men- tioned in the said condition, according to the true intent and meaning thereof, that then the said indenture of mortgage, and the estate thereby granted should cease, determine, and from thenceforth be null and void. And your orators further show, that after the execution of the said indenture of mortgage, the same was, in due form of law, acknowledged by the said John Den and Rebecca his wife, on the day of the date thereof, before H. S. one of the commissioners appointed to take the acknowledgements and proofs of deeds, &c., in and for the said county of Mercer, and the said indenture of mortgage, or an abstract thereof, was duly recorded in the clerk's office of the county of Marcer, in Liber , of Mortgages, page , on the day of , A. D. , as by th? certificate of the clerk of the said count}', endorsed on the said indenture of mortgage, more fully appears, and to which registry and certificate thereof, so as aforesaid endorsed on the said indenture of mortgage, your orators for greater certainty beg leave to refer, if it be necessary so to do. And your orators further show, that on or about the day of J in the year , the said John Den and wife executed a mortgage on the same premises to one John Styles, to secure the sum of , or some other sum, by virtue of which said mortgage the said John Styles claims to have some lien upon the said premises, but your orators charge that the said last mentioned mortgage was executed and recorded subsequent to your orators' said mortgage, and with full notice thereof, and if an incumbrance at all upon the saidpremises, is subsequent to the mortgage of your orators. And your orators further show, that on or about the day of in the year , as your orators have been informed, and believe to be tiue, one John Nokes recovered a judgment against the said John Den, in the Supreme Court of Judicature of the state of 108 BILL TO FOEECLOSE. New Jersej', for the sum of , or some other sum, by virtue of which said judgment the said John Nokes claims to have some lien upon the said premises, but your orators charge that the said judg- ment was obtained subsequent to the execution of your orators' said mortgage, and with full notice thereof, and if a lien at all upon the said premises, is subsequent to the incumbrance of j^our orators' said mortgage. And your orators further show, that after the execution of the said bond or writing obligatory, and of the said deed of indenture of mortgage, from the said John Den and wife to the said John Smith, and before paying, or in any way satisfying the same, to wit, on or about the day of , in the year , the said John Den departed this life intestate, leaving James Den, George Den, and Charles Den, his sons and heirs at law, and that letters of adminis- tration of all and singular the goods and chattels, &c. which were of the said John Den, have been duly granted by W. S. esq., surrogate of the said county of Mercer, to one Richard Stpkes, who has taken upon himself the burthen thereof. And your orators further show, that afterwards, to wit, on or about the day of , in the year • , the said James Den conveyed all his right, title, and interest which he, the said James, had, or claimed to have in the said premises, to one Richard Fen, b}' virtue of which conveyance the said Richard Fen claims to have some interest in the said mortgaged premises ; but your orators expressly charge that the said conveyance was made subsequent to, and with full knowledge of your orators' said mortgage. And your orators further show, that on or about the day of , in the year , the said George Den departed this life intestate, leaving Mary Den and Ann Den his children and heirs at law ; and also leaving his wife Hannah Den, him surviving ; and that no letters of administration have been granted to any one upon his estate. And your orators further show, that they have been informed and believe it to be true, that the said Mary and Ann, the heirs at law of the said George Den above mentioned, are infants under the age of twenty-one years. And your orators further show, that afterwards, to wit, on or about BILL TO FORECLOSE. 109 the day of , in the year , the said John Smith departed this life, having first duly made, executed, and published his last will and testament in writing, in due form of law, and therein and thereby did, among other things, nominate, constitute, and appoint your orators the executors thereof. And your orators further show, that the said last will and testament of the said John Smith, deceased, was afterward, to wit, on the day of , in the year , duly proved by your orators, the executors therein named, before W. S. esq., surrogate of the said county of Mercer, as by a certified copy of the same, and probate thereof, now in the custody of your orators, and ready to be pro- duced when and where this honoteble court may direct, or the record thereof, now remaining in the surrogate's office of said county of Mercer, at Nottingham, in Book of Wills, page , &c., reference being thereunto had, if necessary, may more fully appear. And your orators further show, that they have taken upon them- selves the burthen of the administration of the estate of the said John Smith, deceased, pursuant to his said last will and testament, and that they are entitled to have and receive the moneys now due and owing for principal and interest- on the said bond or writing obligatory, aCnd in the proviso of redemption of the said deed or indenture of mortgage contained. And your orators further show, that no part of the principal sum of two hundred dollars, mentioned in the condition of the said bond or writing obligatory, and in the proviso of redemption of the said deed or indenture of mortgage, so as aforesaid given by the said John Den in his lifetime, and Rebecca his wife, to the said John Smith, in his lifetime, has been paid by the said John Den in his life time, or by the said Rebecca his wife, or by any other person or persons whatsoever for the said John Den, since his decease, either to the said John Smith in his lifetime, 'or to your orators, since the decease of the said John Smith, or to any other person or persons whatsoever for their use, and that no part of the interest money due upon the said bond or writing obligatory has been paid, except the sum of , paid on the day of , in the year , which said payment of interest money was made to the said John Smith 110 BILL TO FOKECLOSE. in his lifetime, and was in full of the interest money due upon the said principal sum of two hundred dollars, mentioned in the con- dition of the said bond, and in the proviso of redemption of the said deed or indenture of mortgage, up to the day of •, in the year , as by the receipt for the same, signed by said John Smith, and endorsed upon the said bond or writing obligatory, in the custody of your orators, and ready to' be produced when and where this honorable court may direct, reference being thereunto had wUl more fully appear. And your orators further show, that there is now due unto your orators, as the executors of the said John Smith, deceased, the said principal sum of two hundred dollars mentioned in the condition of the said bond or writing obligatorj^, and in the proviso of redemption in the said deed or indenture of mortgage, and interest upon the said principal sum of two hundred dollars, from the • day of ■, in the year , and the estate of your orators in the said mortgaged premises has become absolute. And your orators further show, that the said John Den, in his lifetime, and the said Kebecca Den, John St3''les, John Nokes, Charles Den, Richard Stokes, Richard Fen, Mary Den, Ann Den, and Hannah Den, or some or one of them, since the decease of the said John Den, have at all times since the execution and delivery of j^our orators' said mortgage, possessed and enjoyed, and still do possess and enjoy the said mortgaged premises, and every part thereof; and have at all times received, and still do receive, the rents, issues and profits thereof; and that the said premises are a slender and scanty security for the payment of the principal and interest money so due and growing due to your orators. And your orators further show, that they have frequently, and in a friendly manner, applied to the said Rebecca Den, John Styles, John Nokes, Charles Den, Richard Stokes, Richard Fen, Mary Den, Ann Den, and Hannah Den, and requested them to pay to your orators the amount of principal and interest moneys so remaining due to to your orators on the said bond or writing obligatory and indenture of mortgage, so as aforesaid given by the said John Den in his life time, and Rebecca bis wife, to the said John Smith in his lifetime, or BILL TO FORECLOSE. Ill that they would suffer your orators to enter upon the possession of the said mortgaged premises, and receive and take the rents, issues and profits thereof ; and that they would release to your orators all their right, title and equity of redemption of, in, and to the said mortgaged premises, and deliver unto your orators all deeds, evidences and muniments of title relating to and concerning the same. And your orators well hoped that the said Rehecca Den, John Styles, John Nokes, Charles Den, Richard Stokes, Richard Fen, Mary Den, Ann Den and Hannah Den, would have complied with such reason- able requests, as in justice and equity they ought to have done : hut now so it is, may it please your Honor, that the said defendants, com- bining and confederating with divers other persons at present unknown to your orators, but whose names, when discovered, your orators pray may be inserted in this their bill of complaint, with apt and proper words to charge them as defendants hereto, to injure and aggrieve your orators in the premises, not only refuse to pay to your orators the amount of principal and interest money so as aforesaid due to your orators, on the bond or obligation and deed or indenture of mortgage aforesaid, or in any other manner to comply with such reasonable requests of your orators before mentioned, but they, the said defendants, sometimes pretend, and give out in speeches, that the said John Den, in his lifetime, never was indebted to the said John Smith, in his lifetime, in the aforesaid sum of two hundred dollars, or in any other sum of money ; and that the said John Den did not execute and deliver unto the said John Smith the bond or writing obligatory before mentioned, or any bond or writing obliga- tory ; and that the said John Den and Rebecca his wife, did not execute and deliver to the said John Smith the deed or indenture of mortgage before mentioned, or any other deed or indenture of mort- gage ; whereas your orators expressly charge the contrary thereof to be true ; and at other times they give out and pretend that the whole of the principal and interest moneys due upon the said "bond or obligation and indenture of mortgage so as aforesaid given by the said John Den and Rebecca his wife to the said John Smith, have been paid to the said John Smith in his lifetime, and to your orators since his 112 BILL TO FOKECLOSE. decease, whereas your orators expressly charge that neither the whole, or any part of the said sum of two hundred dollars, mentioned in the condition of the said bond or obligation and in the proviso of redemption of the said deed or indenture of mortgage, (except the payment of interest money endorsed upon the said bond, and herein before particularly set forth,) have been paid or in any way satisfied, either to the said John Smith in his lifetime, or to your orators since the death of the said John Smith ; and at other times they give out aud pretend, that although the estate of the said John Smith in his lifetime, had become absolute at law in the premises, yet that neither the heirs of the said John Smith, nor your orators, can enter into the possession of the same, or dispose of the same to any purchaser, and that the same will be subject to an equity of redemption ; all which actings and pretences of the said defendants are contrary to equity and good conscience, and tend to the manifest wrong and injury of your orators ; in tender consideration whereof, and for as much as your ora- tors are without adequate remedy in the premises by the strict rules of the common law, and without the assistance of this honorable court, where matters of this nature are particularly cognizable and relievable. To the end, therefore, that the said defendants, and their confeder- ates, when discovered may, upon their several and respective oaths or aifirmations, full, true, perfect and distinct answer make to all and every the matters aforesaid, and that as fully as if the same were here again repeated, and they thereto particularly interrogated, para- graph by paragraph, and that they may be decreed to pay unto your orators, by a short day to be appointed by this honorable court, the amount found due unto your orators upon the said bond as aforesaid, together with the costs and charges of your orators in this behalf expended, and that, on failure thereof, they, and all persons claiming or to claim by, from, through, or under them, or any of them may be barred and foreclosed forever of and from all right, title, and equity of redemption, ofpui, and to the said mortgaged premises, and every part thereof, and may deliver the possession of the said mortgaged premises, and all deeds, evidences, and muniments of title relating to and concerning the same, unto your orators ; or, if your Honor BILL TO FOEECLOSB'. 113 shall deem it more equitable and just, that the mortgaged premises, with the appurtenances, may be sold to pay unto your orators the money due and owing unto them as executors as aforesaid, and their costs and charges ; and that your orators may have such further and other relief in the premises as the nature of the case may require, and as may be agreeable to equity and good conscience ; may it please your Honor the premises considered to grant unto your orators a writ or writs of subpoena, of the state of New Jersey, to be directed to the said Eebecca Den, John Styles, John Nokes, Charles Den, Kichard Stokes, administrator &c., of John Den, deceased, Kichard Fen, Mary Den, Ann Den, and Hannah Den, therein and thereby commanding them, and each of them, at a certain day and under a certain penalty, therein to be expressed, personally to be and appear before your Honor in this honorable court, then and there to answer the premises, and to stand to, abide, and perform such decree as to your Honor shall seem meet, &c. and your orators, as in duty bound, will ever pray, &c. B. W. Sol of compl'ts. I. H. "W. of Counsel loith compl'ts. By carefully noticing the form and order of stating the various facts in the above hill, the solicitor will find no difSculty in conforming it to the almost end- less variety of circumstances he may meet with in foreclosure cases. The general rule in reference to parties is, that all must be made defendants who have an interest in the mortgaged premises. But the mortgagor who has parted with his equity of redemption need not be made a defendant; though, if he is the obUgor in the bond, to secure the payment of which the mortgage was given, and is made a defendant, it is not good ground for demurrer. And so the heir at law of the mortgagor in the foregoing bUl, who had conveyed away his interest, is not made a defendant. The subpoena issues to the infant defendants, as well as to those who are adults : and if they are non-residents, an order of publication must be taken against them. The statute directs tiat where any person or persons are made defendants in a foreclosure suit, other than the mortgagor, his heirs, executors, administrators, or assigns, such defendants shall, with the subpoena, be served with a ticlfet in writing, shortly making known for what cause he or she is subpoenaed to answer. 114 TICKET. form of the ticket. In Chanceey of New Jersey. Between John Doe and Richard Roe, ex'rs., &c. of John Smith, deceased, Compl'ts., and Rebecca Den and others, Defend'ts. On Mil to fore- close. Sir : — You are made a defendant in this cause, and are subpoenaed to answer, because you hold a mortgage upon the premises, a fore- closure and sale of which is prayed in the complainants' biU. — Dated, (same as teste of subpoena.) B. W. Sol. of complainants. 16 Mr. John Styles. Or — "because you have a judgment against John Den, the mort- gagor in the complainants' bill mentioned, which is alleged to be a lien upon the premises, a foreclosure and sale of which is prayed for in this suit." Or — stating the cause, in such short form, whatever it may be. A ticket should be directed and delivered at the time of serving the subpoenaj to each of the defendants entitled to it ; and a copy of every ticket so served should he annexed to the original subpoena, and returned with it to the clerk's office. Where copies are so returned, the solicitor is allowed thu-ty cents for drawing each ticket, and the clerk twelve cents for filing each copy. But the clerk wiU not tax fees for drawing tickets unless copies are returned with the subpoena. The sheriff should endorse the word " served" upon the back of eadi copy. The practice of making affidavit of the service of tickets is unnecessary, and no costs will be allowed for such affidavits. No fees are allowed the slieriff for serving tickets. In case any of the defendants reside out of the state, or conceal themselves within the state, or have absconded, the sheriff or person serving process will so return — and will make an affidavit of the fact on the back of the subpoena, or on a paper annexed to the subpoena. In case of non-residence, the affidavit AFFIDAVIT OF DEFENDENt's HON-EESIDENCE. 115 should mention the state in which the absent, defendant lives— or if that cannot be ascertained, and it is known that he resides in some one of the United States, the fact should be so stated— because, if it does not appear to the court that he resides in the United States, it will be presumed that he resides in foreign parts, and six months' notice will be necessary before the complainant can proceed against him. — The following is the FORM OFAFFIDAYIT OF DEFENDANT'S NON-RESIDENCE. Mebcbh County, ss. — R. J. sheriff of the county of Mercer, being duly sworn according to law. on his oath says, that he has inquired for Charles Den, one of the defendants named in the within process, for the purpose of serving him therewith, and has not been able to find him in his county ; and this deponant is credibly informed, and verily believes, that the said Charles Den cannot Se found m this state, and that he resides in the state of New York — {or "in some other of the United States" — or "in the kingdom of France" — or that he conceals himself within this state" — or "has absconded," as th? case may be.) R. J. Sworn and subscribed at Trenton, the day of , A. D., before me, J. E. Master in Chancery. The sheriff wiU pay the master twenty cents for drawing, and twenty cents for taking the afiBdavit, and endorse the amount so paid, with his fees for service and mileage, on the back of the subpoena. The clerk is entitled to charge the solicitor twelve cents for filing the affidavit — and thgse costs are all allowed in the taxed bill. ORDER FOR PUBLICATION. Upon the return of the subpoena with an affidavit of non-residence, the sohcitor will, immediately after the return day mentioned in the subpoena, draw up an order for the absent defendant or defendants to appear and plead, answer, &c. which the chancellor will sign on reading the affidavit. 116 OEDEK FOE PUBLICATION. In Chanceey of New Jersey. B.etweeen John Doe and Eichard Eoe, execut's, &c., of John Smith, deceased, Complain'ts, and Charles Den and others, Defendants. On Bill, &c. Order of publication. The complainants having filed their bill in the above cause, and process of subpoena having been issued and returned according to law : And it being made to appear, by affidavit, that the defendant, Charles Den resides out of the state of New Jersey, [or that he " cannot upon due inquiry, be found in this state." or that he " conceals himself in this state," or "has absconded") and that process could not be served upon him. It is, on ihis day of — —, one thousand eight hundred and , on motion of B. W., solicitor of the com- plainants, ordered, that the said absent defendant do appear and plead, demur, or answer to the complainants bill, on or before the day of next^ or that in default thereof, such decree be made against him as the Chancellor shall think equitable and just. And it is further ordered, that the notice of this order prescribed by the rules of this court, shall, within twenty days hereafter, be served on the said absent defendant, either by actual service upon said defendant, personally, or by leaving the same at his residence, with a person of the family ; or in default of such service, that said notice be published within tl^e said twenty days in (^insert the name of newspaper), a newspaper printed at , in this state, and continued therein for six weeks, successively, at least once in every week, and m*i that a copy thereof be also mailed, within the same time, to the said absent defendant, directed to his post-office address, if the same can be ascertained. A. 0. Z., Ch. ABSENT Defendants. 117 Directions are given in RiJes 24, 25, 26 and 27, as to the form and service of NOTICE TO ABSENT DEFENDANTS. In Chancery of New Jersey. To Charles Den and E. F., By virtue of an order of the Court of Chancery of New Jersey, made on the day of the date hereof, in a cause wherein John Doe and Eichard Eoe, executors of John Smith, deceased, are complain- ants, and you and others are defendants, you are required to appear and plead,' answer or demur, to the bill of said complainants, on or before the • — — day of next, or the said bill will be taken as confessed against you. The said bill is filed (to compel the specific performance of a contract made June 11, 1871, ly the defendant, C. D., with the said John Smith, deceased, in his life time to convey to him a house and lot in the township of L , in the county of B ; and you, E. F., are made defendant because you have since taken a lease of said house) ; or (for partition of certain lands in the township of F., in the county of L., of which G- Y. died seized, and you 0. F., are made defendant because you hold a mortgage, given hy one of the tenants in common, upon his estate therein, and you H, 8. V., are made defendant because you are one of the tenants in common therein) ; or, (against you for a divorce from the bond of Matrimony) ; or, (against you for a divorce from bed and board) ; or, (against you by the complainant, as your wife, for proper alimony and maintenance) ; or, (to foreclose a mortgage given by E. F. and wife to G. H., on lands ifi the city of Newark, dated May 4, A. D. 1870, and you, J. K., Jm M., and R. S., are made de- fendants because you hold encumbrances on said lands ; you, C. D., are made defendant because you own said lands or some part thereof ; and you, E F., are made defendant because the bill prays a decree against you for any deficiency there may be of the proceeds of said lands to pay the mortqaqe debt). » ^ B. W. Solicitor of complainant. Dated April 20, 1872. '^ o, tt.-b>.vviA. 118 INQtrtET FOE EESIDENOE. PROOF OP INQUIRY FOR RESIDENCE. In Chanoeky op New Jersey. Between John Doe and Eichard Eoe, exec'rs of John Smith, deceased, compl'ts, V On bill and Charles Den and others, def ts. New Jersey, ss. — T. "W"., being duly sworn, on his oath saith — that he is the {person actually entrusted with the management and conduct of this suit on part of the) complainant ; that he has in good faith made diligent inquiry for the residence and post office address of C. D., one of the defendants ; [and that he is credibly informed, in such manner that he believes it to be true, that said C. D. resides in the city of Rochester, in the state of New York, and that his post office address is '' Rochester, N. Y.," and that this deponent did, on the I6th day of June, 1872, place in the post office in the city of Trenton, a letter directed to the said C. D., at "Rochester, N. Y.," with the postage prepaid, containing a copy of the notice hereto annexed,) or, [as well in the manner directed by the rules of this court relating thereto as in every other way by which he thought it probable that he could ascertain such residence or address, and that he has not been able to discover, and has no information as to the residence or post office address of said defendant.) The names of all concealed, absconding, or non-resident defendants must be inserted in the same order. The fees allowed are — to the solicitor, for the motion, one dollar and fifty cents, and for drawing the order, thirty cents a folio ; to the chancellor, for signing, one dollar and tlurty-four cents ; to the clerk, twelve cents for filing and eight cents a folio for a copy for the printer ; and the printers fee, for pub- lishing, is sixty cents a foUo for the first insertion, and thirty cents a folio for each subsequent insertion. When the notice required by the above order has been published, get from the printer a printed copy, and annex to it, in the form following : APPIDATIT OP PUBLICATION. Mercer County, ss. — J. J. of full age, being duly sworn accord- ing to law, on his oath says, that notice, of which the annexed is a DECEEE PEO CONFESSO. 119 true copy, was published -within twenty days from the date thereof, in the (name of paper) a newspaper printed and published in Trenton, in this state, for six weeks successively, at least once in every week. Sworn and subscribed, &c. J.J. If the notice has been published in more papers than one, get a similar affi- davit of each publication. The printer or solicitor should endorse upon the affidavit the amount of the charge for advertising, that the clerk, in taxing the costs, may have evidence of the amount. Forty cents are allowed for drawing and taking the affidavit, and twenty-four cents to the clerk for flUng the affidavit and copy of order. When the time limited for the appearance of the defendants has expired, if no one of them appears, and pleads, answers, or demurs, the complainant's solicitor may proceed, immediately in term time, or vacation, to move a decree pro con- fesso and an order of reference to a master to report the amounts due the complainant, and such of the defendants as may have mortgage liens, with the order of priority of such liens, unless, as in this case, there are infcmt defendants. "Where that is the case, the complainant's solicitor will prepare a simple decree pro confesso against all the adult defendants in the cause, who have made default — as follows : FORM OF DECREE PRO CONFESSO, WHERE SOME DEFENDANTS HATE BEEN SERTED WITH PROCESS, AND AN ORDER OF PUBLICATION TAKEN AS TO OTHERS. In Chancery of New Jeesey. Between John Doe and Eichard Roe, executors, &;c. of John Smith, dec. Complainants, and Rebecca Den and others. Defendants. ► Decree pro. con. This cause being opened to the court by I. H. "W. of counsel with the complainants, and it appearing that process of subpoena for the defendants to appear and answer the complainants' bill hath been 120 DECEEE tEO CONFESSO. duly issued and returned served, by the sheriifs of the counties of Mercer and Burlington, on Eebecca Den, John Styles, John Nokes, Eichard Stokes, administrator, &c. of John Den, deceased, Richard Fen and Hannah Den, six of the defendants, and that the order of this court, made on the day of last, directing Charles Deo, another of the defendants, to appear, and plead, answer, or demur to the complainant's hill, on or before the day of , then next, has been duly published in the manner, and as is in the said order directed and prescribed ; and that the said defendants have not, nor have any or either of them, appeared and pleaded, answered, or demurred to the said bUl within the time limited by law and the said order, or at any other time, but that they have wholly failed and neglected so to do. It is therefore, on this fourteenth day of July, in the year, &c. ordered and directed, that the complainant's bill be, and the same is hereby taken as confessed against the said defendants, Eebecca Den, John Styles, John Nokes, Eichard Stokes, Richard Fen, Hannah Den, and Charles Den, to the end that such decree may be made against them as the Chancellor shall think equitable and just. . A. O. Z. Ch. The Chancellor will sign the decree, upon being satisfied that process has been served upon the resident adult defendants, and the notice published, or served, as required by rules 25, 26, and %1. The solicitor and counsel are entitled to four dollars and fifty cents for the motion for every decree pro con.; the solicitor tlilrty-two cents a foUo for draw- ing and engrossing it ; the chanceUor one dollar and thirty-four cents for signing ; and the clerk twelve cents for filing. If the complainant's solicitor has reason to beUeve that no appUcation will be made in behalf of the infant defendants for the appointment of a guardian ad litem, he will prepare a notice to the infant, if fourteen years of age, in the fol- lowing form : (See Eules 34 and 35.) Notice to Infant defendant. 131 poem of notice to infant defendant. In Chanceey of New Jersey. Between "i * John Doe and Richard Roe, executors, &c. of John Smith, dec. Complainants, J> On hill, Jtc. and Rebecca Den & al. Defendants. To Mary Den. Take notice, that I shall apply to the Chancellor of this state, on Tuesday the thirteenth day of July next, at ten o'clock in the fore- noon, or 'as soon thereafter as counsel can be heard thereon, at the State-house in the city of Trenton, to assign and appoint a guardian ad litem for you in the above stated cause. B. W. Sol. of compVt. Dated, June 10, 1872. The above notice must be served on the infant personally, if resident in the state, at least fifteen days before the day for making the application. But if the infant be under /oMrfeera years of age, or not resident m the state, the notice must be directed to, and served on his guardian appointed by the Orphans' Court, if any there be ; and if no such guardian, then the father of the infant — if no father, then the mother, provided such guardian, father, or mother be resident in the state. The form wiU be as follows, after the title of the cause : To li. B. Guardian (Jather or mother, as the case may be,) of Ann Den. Take notice, that I shall apply to the Chancellor of this state, on Tuesday the thirteenth day of July next, at ten o'clock in the fore- noon, or as soon thereafter as counsel can be heard thereon, at the State-house in the city of Trenton, to assign and appoint a guardian ad litem for Ann Den, an infant defendant in the above stated cause, who is under fourteen years of age, {or "who is not resident in this state," as the case may be.) B. W. Sol. of compVi. Dated June 10, 18V2, 9 122 NOTICE TO tNFANT DEFENDANT. Thil? notice must be served personally on the person to whom it is directed, at least fifteen days before the day named for the application. If, however, the infant or infants reside out of the state, and have no guardian appointed by the Orphans' Court, nor a father or mother resident in the state, then no notice is required. But an affidavit of that fact must be made, and submitted to the chancellor at the time of moving for the appointment of a guardian. The following are the forms of affidavits which may be used. The first to be made at the foot of a copy of the notice served : AFFIDAVIT OF NOTICE TO INFANT DEFENDANT, &c. Mebceb County, ss. — A. B. of full age, being duly sworn accord- ing to law, on his oath saith, that on the twelfth day of June, last past, he served a notice, of which the above is a true copy,f on Mary Den, who is, to this deponent's knowledge, an infant of the age of fourteen years and upwards, by reading the same to her, and delivering to her the original copy, (orf " on H. B. guardian, father, or mother, of Ann Den, an infant, by reading the same to him, and delivering to Mm the original copy ; and that at the time of the said service the said H. B. informed this deponent that the said infant was under the age of fourteen years.) A. B. Sworn and subscribed, Ac. AFFIDAVIT OF NON-RESIDENCE OF INFANTS, &o. MEECitE County, ss. — A. B. of full age, being duly sworn accord- ing to law, on his oath saith, that Mary Den and Ann Den are infant defendants in a certain cause now pendmg in the Court of Chancery of New Jersey, in which John Doe and Eichard Eoe, executors, &c. of John Smith deceased, are complainant's, and Eebecca Den and others are defendants, and that they reside out of the State of New Jersey, to wit, in the city and State of New York, and that they APPOnSfTMENT OF GUAEDIAN. l23 have no father, mother, or guardian appointed by the Orphans' Court resident in this state. A. B. Sworn and subscribed, &c. On bill to foreclose mortgage, &c. In order to avoid delay, the complainant's solicitor should have the necessary notice served immediately after the return of the process, and come prepared with his affidavits, to make the proofs required to entitle him to move for a guardian ad litem, at the same time at which he takes his decree pro confesso against the adult defendants who make default ; and then, if no proper applica- tion is made by any other person or persons in behalf of the infant defendants, he will be entitled to an order, as foUows : FORM OF AN ORDER FOR THE APPOINTMENT OF A GUARDIAN, ON APPLICATION OP COMPLAINANT. In Chancery of New Jersey. Between John Doe and Richard Roe, executors, &c. Complainants, and Rebecca Den, &c. Defendants. July 13, 1872. On motion made this day by I. H. "W. being of counsel with the complainant, it was alleged, that the defendants, infants under the age of twenty-one years, have been served with process, returnable to the last term of this court, to appear and answer the complainant's bill, and that they have neglected to apply for the appointment of a guardian to defend this suit ; and it appearing by aifidavit, that the defendants are infants above the age of fourteen years, and that due notice has been given to them of this application ;f it was thereupon prayed, that at the rising of the court H. S. L. clerk of this court, be assigned and appointed their guardian, by whom they may appear, and answer, and defend this suit, which is ordered accordingly. A. 0. Z., Oh. 124 APPOINTMENT OF GUABDIAIT. \0r, " it appearing by affidavit, tliat the defendant Mary Den is an infant over the age of fourteen years, and that due notice has been given to her of 'this application, and that due notice of the same has been given to H. D. the mother of Ann Den, who is an infant defendant under the age of fourteen years, and has no guardian appointed by the Orphans' Court, and no father resident in this state." Or, after the title of the cause, say : It appearing to the court that Mary Den and Ann Den, two of the defendants in the above stated cause, were by an order of this court, made on the twelfth day of April last past, directed to appear and plead, answer, or demur, to the complainant's bill on or before the second Tuesday of July then next, that they are infants under the age of twenty-one years, and have neglected to apply for the appoint- ment of a guardian to defend this suit ; and it appearing by affidavit that they still reside out of this state, and have no father, mother, or guardian in this state to whom notice of this application could be given — It is thereupon, on motion in behalf of B. "W. solicitor of the complainants, ordered, that H. S. L. clerk of this court, be assigned and appointed their guardian, by whom they may appear and answer, and defend this suit. Upon filing the order for tlie appointment of a guardian with the clerk, he win enter an appearnce for the infant defendants, and a rule of reference to a master, in the common rule book. In the Court of Chancery there is no clerk's book or book of minutes kept. AU orders and appearances are drawn up and filed, and all rules are entered in the common rule book. APPEABANCE. 125 FORM OF APPEARANCK. In Chancery of New Jeksev. Between John Doe, &c. Complainants, and Eebecca Den, &c. Defendants. Appearance ent.ered for Mary Den and Ann Den, the infant de- fendants in the above case, by H. S. L. Guardian, &c. (or Sol.) April 13, 1872. Where the complaiuant neglects or refuses to proooed, tho following order under rule 93 may be taken. FORM OF ORDER TO SHOW CAUSE. John Doe, and Eichard Koe, &c. Compl'ts, and \- Order to show cause. Eebecca Den, et al. Defendants. This matter being opened to the court by I. H. W., of counsel with defendant in above cause, and it appearing that the com- plainant has made the said defendant a party to the said bill of fore closure and that he claims to be incumbrancer by judgment (or mort- gage, &c.), upon the lands mentioned and described in complainants bill, subsequent (or prior), to the complainant, and that the said de- fendant has appeared, and did file his answer to said bill, on the day of last, and that the complainant has since that time neglected to proceed in said cause. It is hereby on the day of • in the year, &c., by A. 0. Z., Chancellor, ordered, that the said complainant do show cause on the day of next, at o'clock, in the forenoon, at the State House in Trenton (or at chambers in Jersey City), why the said defendant shall not be allowed to proceed with the said cause to decree and execution in the name of the complainant. A. 0, z„ a 126 EEFEEENCE TO A MASTEE. Serve a copy upon the solicitor of the complainant and make affidavit thereof. ORDER TO PROCEED ON THE ABOVE. Between John Doe and Richard Roe, ex'rs, '&c., Complainants, and Rebecca Den, & al. Defendants. This matter being opened to the court by I. H. W., of counsel with the defendant, and due proof being made that the order issued in above cause on the day of 1871 has been duly served upon the solicitor of the complainant, and no cause being shown to the contrary by the complainant. It is thereupon on this day of , A. D. &c., ordered and directed, that the said defendant be allowed to proceed with the said cause to decree and execution in the name of complainant, and that the complainant shall not be allowed his costs. A. 0. Z., C. July 22, 1872. FORM OP A RULE OE EEEEfiENCE TO i MASTER, IS OASES "WHERE THERE ARE INFANT DEFENDANTS. Between John Doe and Richard Roe, ex'rs, &c., Complainants and Rebecca Den & al. Defendants. H. S. L. clerk of this court, having been appointed guardian for the infant defendants, Mary Den and Ann Den, upon application in behalf of the complainants ; and the said guardian having entered an appearance for the said defendants to this suit ; and the com- plainants' bUl having been taken as confessed against the other de- fendants ; let it be referred to J. E. one of the masters of this court, to ascertain the truth of the allegations of the complainants' bill, and to take an account of what is due (if any thing) to the complainants SUMMONS. 127 for principal and interest upon their said mortgage ; and also what is due (if any thing) to John Styles upon his mortgage, and as to their right of priority in payment ; and to report whether, under the cir- cumstances of the case, a sale of the whole, or a part only of the mortgaged premises is necessary to he made ; and any other special mattter which he may deem proper or shall appear for the benefit of the infant defendants ; and the master is to make his report with all convenient speed. Entered by B. W. solicitor for complainants. By the court. H. S. L., Oik Get the clerk to furnish you with a copy of this rule for the master. The fees for appearance are — twenty cents for drawing, twenty cents for entering, and twelve cents for filing; — for the rule — to the solicitor for motion, eighty cents, to the chancellor seventy-five cents, and to the clerk, for entering and copy, thirty-two cents. Apply to the master to fijc a day for taking the account, and get a summons from him for the guardian, and for the defendant who holds the other mort- gage. — The following is the FORM OF SUMMONS. In Ohanceey of New Jersey. On Mil, &c. Between John Doe, &c. Complainants, and Rebecca Den, &c. Defendants. To H. 8. L. guardian of M. D. and A. D. infant defendants in the above stated cause, ( or R. S. one of the defendants, &c.) Sir : — You are hereby summoned to be and appear before me at my office in the city of Trenton, on the day of , next, at o'clock in the noon, at which time I shall proceed to ascertain the truth of the allegations of the complainants' bill in the above cause, arid to take an account of what is due (if any thing) to the complainants for principal and interest upon their mortgage in 128 mastee's eepoet. their bill of complaint mentioned, and also what is due to the defend- ant Richard Stj'les, upon his mortgage in said bill mentioned, and the priority of said mortgages, and proceed to report upon the same and the other matters referred to me. Given under my hand, this — day of — ■ — , 1872. J. B., Master in Chancery. Or — if the summons is to the other mortgagor, instead of saying, " due to the defendant "Richard Styles, upon his mortgage" — say, " due to you, upon your mortgage." The summons must be served by the soUcitor of the complainant upon the guardian and defendant, at least four days, exclusive, before the day assigned for hearing before the master. Proof of service of such summons must be made before the master, either by affidavit or by the written acknowledgment of the party served. The master is entitled to forty cents for drawing, and the soUcitor forty cents for serving each summons. At the day appointed by the master for the hearing, the sohcitor wiU attend with the bond and mortgage of the complainants, and the necessary witness or witnesses to prove the due execution of the bond. The defendants holding mortgage liens, and being duly summoned, wiU also come prepared with like evidence. The court requires this evidence to be produced before the master, from a jealous regard for the rights of the infant defendants.' The master being satisfied with the evidence produced, and having reduced it to writing, wUl proceed to draw his report. The following is the FORM OF MASTER'S REPORT. In Ciianceky of New Jersey. Between John Doe and Richard Roe, executors, &c. Complainants, and Rebecca Den and others, Defendants. Oct. 10, 1872. In pursuance of an order of this court, entered in the above cause, bearing date, &c., I have been attended by the solicitor of the com- mastek's eepoet. 129 plainants and by the defendant, Richard Styles, in peison, (no person attending for H. S. L. guardian of the infant defendants, although duly summoned, as by oath made before me appeared) and in the presence of the parties attending me, I have considered of the mat- ters thereby referred to me. And the solicitor of the complainants produced before me the mortgage in their bill mentioned, bearing date the day of , and made and executed by John Den and Rebecca his wife to the said John Smith, and which said mortgage was duly aclmowledged according to law by the said John Den and wife, and recorded as in the bill mentioned, as appears by endorse- ments thereon ; and the said complainants' solicitor also produced to me the bond intended to be secured by the said mortgage, and which was proved before me by the oath of E. F. one of the subscribing witnesses thereto, as appears by his deposition, accompanjdng this report, and making part thereof; and which said bond and mortgage are marked exhibits A. and B. on the part of the complainants; and I find there is due. to the complainant on his said mortgage, for prin- cipal and interest on this day, the sum of $ ; and I do certify and report that the schedule hereunto annexed, marked No. 1, and making part of this my report", contains a statement, and account of the principal and interest money due to the complainant on his said mortgage, and to which, for greater certainty, I refer. And I do further report, that the defendant, Richard Styles, produced before mo the mortgage in the complainants' bill referred to, bearing date the, &c. and made and executed by the said John Den and wife to the said Richard Styles, and which said mortgage was duly acknowl- edged according to law, by the said John Den and wife, before J. E. one of the masters in Chancery of New Jersey, and. recorded in the clerk's office in the county of Mercer, on the day of, &c. as appears by endorsements thereon ; and the said Richard Stylos also produced to me the' promissory note referred to in the said last men- tioned mortgage, the payment of which was intended to be secured thereby, and which note was proved before me by the oaths of A., B., C, and D., witnesses produced on the part of the said Richard Styles, and whose depositions accompany this my report, and make a part thereof; and which last mentioned mortgage and promissory 130 master's eepoet. note are marked exhibits C. and D.-on the part of the defendant, Richard Styles, and I find there is due to the said Richard Styles on his said mortgage, for principal and interest, on this day, the sum ot $ ; and I do certify and report, that the schedule hereunto annexed, marked No. 2, and making a part of this my report, contains a state- ment of the principal and interest money due to the said Richard Styles on his said mortgage, and to which, for greater certainty, I refer; and I do further certify and report, that the same premises comprised in the complainants' mortgage are also cor^prised in the mortgage of the said Richard Styles, and that the mortgage to the said complainants was made and executed, and also recorded, prior to the mortgage of the said Richard Styles, and is entitled to priority in payment ; and that f it is necessary and advisable that the whole of the mortgaged premises should be sold to raise and pay the money so due to the complainants and to the said Richard Styles, respectively, together with the costs of this suit. And I further certify, that I know of no other special matter which I deem for the benefit of the said infant defendants to report. All which is respectfully submitted. If a sale of a part of the mortgaged premises will be suflScient, after f say — under the circumstances of this case, it will, in my opinion, be sufficient to sell a part of the mortgaged premises to raise and pay the moneys due to the complainants and to the said Richard Styles, respectively; together with the costs of this suit ; and that it is for the benefit of the infant defendants to make sale, for that pur- pose, of all that lot of ground, &c. (describing particularly the part to be sold) ; and I further certify, that I know of no other special matter which I deem for the benefit of the said infant defendants to report. All which is respectfully submitted. J. E.' Master in Chancery. The master will annex schedules to the report, for form of which see ante page 90. He will also annex the proofs made before liim of the service of sum- mons, and the proofs of the obUgations, mark the bonds, notes, and mortgages as exhibits in the cause, and hand over the report to the complainant's solicitor. Fees. — To solicitor for attending master, throe dollars,* master making report, ^QB Rule 161. HEAEING. 131 one dollar and thirty-four cents, drawing and engrossing do., fourteen cents a folio, scheduling, per folio, ten cents^ making each exhibit, ten cents, swearing each witness, twenty cents, writing down depositions, twenty cents a folio ; clerk, twelve cents for filing every paper. The rule for hearing may be entered at the clerks office, in the common rule book, immediately after the rule of reference ; he will then make a copy for the solicitor, and put the cause upon the calendar for the next term without further notice. But a rule need not be entered in all cases. See rule 89. — The follow- ing is the form of the RULE FOR HEARING. In Chanceby op New Jersey. John Doe and Eichard Roe, ex'rs, &c. Complainants, and Rebecca Den & al. Defendants. ► July 22, 18- It is ordered, on motion of B. W. Solicitor for and of counsel with the complainants, that this cause be set down for hearing on the first day of the next stated term of this court, to be held at the state- house in the city of Trenton, at the hour of ten o'clock in the fore- noon of that day, or as soon thereafter as counsel can be heard thereon. By the court. H. s. L. cm. Serve a certified copy of this rule on the clerk, as guardian of the infant de- fendants, and get his acknowledgment of the due and legal service thereof at the foot of it ; or make affidavit of service, and file it m the office. The ser- vice is required to be made fifteen days, exclusive of Sundays, previous to the day of hearing. 132 FOEM OF DEOEEE. The cause will then be ready for final hearing and decree at the next term. FORM OF DECREE FOR SALE OP X PART OP THE MORTGAGED PREMISES AGAINST INFANTS, &.O. WHEN THE BILL HAS BEEN ORDERED TO BE TAKEN PRO OONFESSO AGAINST THE OTHER DEFENDANTS, AND ' ONE OP THEM IS A SUBSEQUENT MORTGAGEE. The bill filed in this cause having been ordered to be taken pro confesso against the defendants, Eebecca Den, John Styles, John Nokes, Charles Den, Richard Stokes, administrators, &c. of John Den, dec, Richard Fen, and Hannah Den, in the term, of July last, and the cause now coming on to be heard in the presence of Mr. I. H. W. being of counsel for the complainant; no one appearing for the defendants, Mary Den and Ann Den, although this cause has been duly set down for hearing as against them at this present term, and notice thereof duly served upon H. S. L. guardian of the said defendants, Mary and Ann, as by the admission of the said guardian, made in open court, appears. Whereupon and upon opening of the bill, and the said order, and reading the proofs and exhibits in the cause, and a report upon file, made by J. E. one of the masters of this court, bearing date on the, &c. from all which it appears that there was due to the complainant on the day of making the said report, for principal and interest on his mortgage, the sum of $ . and that there was due to the said Richard Styles on the day of the date of the said report, for principal and interest on his mortgage from the said John Den and wife, to him referred to in the complain- ant's bill, the sum of $ ; and it further appearing by the said report, that the same premises which are comprised in the complain- ant's mortgage are also comprised in the said mortgage to the defendant John Styles, and that the mortgage of the said complain- ant was made and executed, and also recorded, prior to the mortgage ■ of the said defendant, and is entitled to priority in payment; and that, under the circumstances of this case, it wQl, in the opinion of the master, be sufficient to sell a part of the mortgaged premises to raise and pay the money due to the complainant and to the said POEM 01" OEOEEE. 133 John Styles, respectively, together with the costs of this suit, and that it is- for the benefit of the defendants, Mary Den and Ann Den, to make sale for that purpose of all that messuage, &c. [describing particularly the part to he sold) and no cause heing shown or appearing against confirming the said report — It is, on this day of , by A.. O. Z. Chancellor of the state of New Jersey, ordered, adjudged and decreed, and the said Chancellor doth, by virtue of the power and authority of this court, hereby order, adjudge and decree, that the master's report do stand ratified and confirmed, and , that so much of the mortgaged premises, with the appurtenances, as shall be necessary, be sold to raise and satisfy the said sum of $ due to the complainants, together with the lawful interest thereon, to be computed from the day of , being the date of the said master's report, with tlie complainant's costs, to be taxed, and also the said sum of $ , due to the said John Styles, together with the lawful interest thereon, to be computed from the said day of last past ; and that a writ of fieri facias do issue for that purpose out of this court, directed to the sheriff of the county of Mercer, commanding him to make sale, according to law, of the part of the mortgaged premises before particularly mentioned and described, with the appurtenances, and that out of the money arising from such sale he first pay to the complainant, or their solicitor, their said debt, and the interest which shall accrue thereon, and also their costs as aforesaid. And that he then pay to the said John Styles, or his solicitor, the amount of his said debt, together with the interest which shall accrue thereon ; and that thereupon he bring his said mort- gage into court to be cancelled ; and that the residue of the money arising from the said sale, after payment of the said debts, interest and costs, (if any there shall be) be brought into this court, to abide the further order thereof, unless otherwise previously ordered ; and that the said sheriff make return and report of his proceedings by virtue of the said execution with all convenient speed. And it is further ordered, adjudged and decreed, that the complainant be at liberty to apply to this court from time to time for any further execu- tion which may be necessary, and that the defendants shall stand 134 FOEM OF DECEEE. absolutely debarred and foreclosed of and from all equity of redemp- tion of, in, and to, so much and such part of the said mortgaged premises as shall be sold by virtue of this decree. A. 0. Z., 0. FORM OF DECREE FOE A SALE OF THE "WHOLE OF THE MORT- GAGED PREMISES, IN" A SIMILAR CASE. This cause coming on to be heard, in the presence of Mr. I. H. W. of counsel for the complainants, no one appearing for the defend- ants, Mary Den and Ann Den, although this cause has been duly set down for hearing at this present term, and notice thereof duly served upon H. S. L. guardian of the infants, as by aiEdavit now produced and filed appears, (or, " by the admission of the said guardian, now made in open court appears,") the complainant's bill having been heretofore taken as confessed against the other defendants ; where- upon and upon opening of the bill, and reading the proofs and exhibits in the cause, and a report upon file, made by J. B. one of the masters of this court, bearing date on the, &c. from all which it appears that there was due to the complainants on the day of the making of the said report, for principal and interest on their mortgage, the sum of $ , a.nd to the defendant John Styles, the sum of $ ; that the mortgage of the complainants and of the said John Styles embrace the same premises, and that the complainants' mort- gage is first in order of priority ; and it further appearing by the said report, that it is necessary and advisable that the whole of the mort- gaged premises should be sold to raise and satisfy the amount due to the complainants and the said defendant, together with the interest to accrue thereon and the complainants' costs of this suit, and no cause being shown or appearing against confirming the said report — It is, on this day of, &c. by A. 0. Z. Chancellor of the State of New Jersey, ordered, adjudged, and decreed, and the said Chancellor doth, by virtue of the power and authority of this court, hereby order, adjudge, and decree, that the master's report do stand ratified and confirmed ; and that the premises in the saidmortgage mentioned FOEM OF DECEEE 135 and described, with the appurtenances, be sold to raise and satisf}' the said sum of $ , together with the lawful interest thereon, to be computed from the day of , last past, being the date of the said master's report, with the complainants' costs in this cause to be taxed ; and also the sum of $ , so due to the said John Styles as aforesaid ; and that a writ of fieri facias do issue for that purpose out of this court, directed to the sheriff of the county of— — , commanding him to make sale, according to law, of the said mortgaged premises, and that out of the money arising from such sale, he pay to the complainants or to their solicitor the said debt, interest, and costs ; and to the said John Styles, in the second place, his said debt and interest ; and that in case more money should be raised by the said sale than shall be suflScient to answer such pay- ment, that such surplus be brought into this court, to abide the further order of the court, unless otherwise previously disposed of by the order of this court ; and that the said sheriff make return without delay of his proceedings by virtue of the said writ. And it is further ordered, adjudged, and decreed, that the defendants stand absolutely debarred and foreclosed of and from all equity of redemp- tion of, in, and to the said mortgaged premises, when sold as afore- said, by virtue of this decree. A. 0. z., a Fees for decree and execution are the same as in ordinary cases. The ExecuUon pursues the same general form as that ante page 93, with such variations only as are necessary to make it conform specifically to the form of the decree. ' Sheriff's statement. — The sheriff or other officer to whom execution issues, should, in all cases, be particular in preparing and filing in the clerk's office the statement required by the statute, showing the amount of debt, interest, and costs due the party or parties, the amount of sheriff's execution fees, the amount of money raised by the sale, and the disposition made of it, so that if further proceedings are necessary in the cause, the records will show what has been done under the execution. 136 SEtOET S'OEECLOSTJEE BILL. A SHORT FORM OP FORECLOSURE BILL. To the Honorable A. 0. Z., esq., Chancellor of New Jersey. In Chancery complaining, your orator, A. B., of the township of H., in the county of B., in the state of New Jersey, showeth — 1. That on the day of , in the year eighteen hundred and ■ , C. D., being indebted to E. F., in the , sum of five hundred dollars, by his bond, dated on that day, became bound to said E. F. in the sum of one thousand dollars, to be paid to him, his executors, administrators, or assigns, with a condition there under written, that if the said B. D. should, in two years from the date thereof, pay to the said E. F., his executors, administrators, or assigns, said sum of five hundred dollars, with interest at the rate of seven per cent, per annum, and should pay said interest at the end of each six months from the date thereof, then that bond should be void. 2. That in said bond it was agreed between the parties thereto, that if said interest, or any part thereof, should not be , paid within thirty daj^s after the same should become due, then the whole of the principal sum secured thereby should be immediately due, at the option of said 0. D., his executors, administrators, or assigns. ■3. That to secure the payment of said five hundred dollars, with interest, the said C. D., and M. his wife, by a deed of mortgage bear- ing date on the same day with said bond, conveyed to said E. F., and his heirs |^and assigns forever, in fee simple, that tract or parcel of land, [here insert description, etc.] 4. That said mortgage contained a condition that the same should be void upon payment of said sum of five hundred dollars, with interest at the rate, at the times, and in the manner in the condition of said bond set forth. 5. That said mortgage contained an agreement of the same effect as that in said bond above set forth in paragraph two, that the whole of the principal should become due if any part of the interest due remained unpaid for thirty days. 6.' That said mortgage was, on the day of , eighteen hundred and , duly registered in the ofSce of the clerk of the SSOET FOKECLOSE BILL. 137 county of B., in Liber 10 of mortgages, page 169, the execution of . the same having heen first acknowledged, and such acknowledgment certified thereon, as required by law. 7. That the said E. F., on the day of , eighteen hundred and -, by writing, under hisfhand and seal, dated on that day assigned said bond and mortgage to G. H., who afterwards, on the day of , eighteen hundred and , by writing, under his hand and seal, dated on that day, assigned the same to your orator. 8. That said bond and mortgage, and two assignments, to which your orator refers for certainty, are in his possession, ready to be produced and proved. 9. That the said 0. D., on the day of , eighteen hundred and , mortgaged said lands to J. K., to secure the payment of eight hundred dollars, with interest, which mortgage was, on the day of , eighteen hundred and , recorded in said clerk's office, in Liber 10 of mortgages, page 260. 10. That the said C. D., on the day of , eighteen hun- dred and , mortgaged said lands to L. M., to secure the pay- ment of two thousand dollars, with interest, which mortgage was on the day of date thereof, registered in said clerk's office, in Liber 10 of mortgages, page 420. 11. That on the day of , eighteen hundred and , 0. P. recovered a judgment in the Supreme Court of this state against said 0. D. for dollars. 12. That on the day of , eighteen hundred and , Q. N. recovered a judgment against C. D., in Bergen County Cir- cuit Court, for dollars. 13. That said two mortgages, and said two judgments mentioned in paragraphs nine, ten, eleven, and twelve respectively, are uncan- celed and unsatisfied of record, and are claimed to be subsisting liens on said premises mortgaged to E. F. ; but your orator shows and insists that they were severally executed, recorded, registered, and signed subsequent to the execution and registry of said mort- gage to E. F., and that said mortgage is a prior lien on the premises therein mortgaged. 10 138 SHORT FOEECLOSE BILL. ,■■0 V 14. That E^., and M. his wife, on the day of , eighteen hundred and , by his deed dated on that day, conveyed said mortgaged premises in fee to S. R., which deed was accepted by said S. R. ; and that it was stipulated in said deed that said lands were conveyed subject to said mortgagell to E. P., and that the same was assumed to be paid by said S. R. as part of the consideration of said deed, by which stipulation and acceptance the said S. E. became bound at law to said E. P., and in equity to your orator, to pay the amount due and to become due on said mortgage. * 15. That on the day of , eighteen hundred and , seventeen dollars, being six months' interest on the principal sum of five hundred dollars secured by said bond and mortgage given by C. D. to B. P., became due, and that the same has not been paid, and has remained unpaid for more than thirty days after the same be- came due, and your orator has elected, and hereby elects, that the whole of said principal shall be due. 16. That the whole of said principal sum of five hundred dollars, with interest thereon from the day of , eighteen hundred and , is due and payable to your orator. 11.' That said E. P., G. H., or your orator, have never had posses- sion of said mortgaged premises, or received any of the rents or issues thereof 18. That your orator has requested said C. D., J. K., L. M., 0. P., Q. N., and S. R. and P- his wife, who are the defendants to this suit, to pay unto him said principal and interest so due on said bond and mortgage, or to convey and release to him their interest in said lands, as payment, at their fair value, upon said mortgage debt, with which request they, and all of them, refused and neglected to comply. In tender consideration whereof, and inasmuch as your orator is remediless in the premises in the courts of law, and can only have adequate relief in a court of equity, and to the end — 1. That the defendants, and each of them, may answer, upon their respective oath or aiBrmation, according to the best of their respective knowledge, information, and belief, all and singular the premises and each fact above stated. SMOE'r I'OKECLOStKE BILt. l39 2. That an account may be taken, under the direction of this court, of the amount due upon your orator's s^id mortgage. 3. That the defendants, or some of them, may be decreed to pay unto your orator the amount so found due, with interest thereon, and your orator's costs in this suit, by a short day, to be appointed by this court, and that in default thereof said defendants, and each of them, do stand debarred and foreclosed of all equity of redemption in said mortgaged premises. 4. That said premises may be sold by the order of this court, and out of the proceeds of said sale, your orator may be paid the amonnt so found due upon his said mortgage, with interest thereon, and his lawful costs in this suit. 5. That if the proceeds of said sale shall not be sufficient to pay said amount, with interest and costs, that the said C. D. and S. E. may be decreed to pay the deficiency. 6. That your orator may have such other relief as the nature of his case requires and as may be agreeable to equity. May it please your Honor to grant unto your orator the state's writ of subpoena, issuing out and under the seal of this court, to be directed to the said C. D., J, K., L. M., O. P., Q^N., and S^R. and F. his wife, commanding them, on a certain day and under a certain penalty therein expressed, to be and appear before your Honor in this court, then and there to answer the premises in manner afore- said, and to stand to, abide by, and perform such order and decree as your Honor shall make therein. T. P. C, Sol. and of Counsel with CompMnants. This short form agrees with the modern English practice.— See Z>aTOek' Ohan- eery, ith edition, vol. 3, page 1912. 140 NOTES OF PRACTICE. PRECEDENTS Notes of Practice PART III. Under this head will be found : • The forms of proceedings, from reference to decree, in a mortgage case, where the money secured by the mortgage was not aH due at the time of the first decree. Forms of demurrers, pleas, and answers, and of proceedings incident to answers, &c. Forms in relation to depositions, interrogatories, &c. Rules, not given in other parts of the work. Orders most commonly occurring in practice. Forms of decrees in certain cases. Forms of writs, not given in other parts of the work. Forms in appeal. DEOEEE PEO CONFESSO. 141 I. FORM OF DECREE PRO CONFESSO AND REFERENCE IN A FORE- CLOSURE CASE, WHERE THE MONEY SECURED BY THE MORTGAGE IS NOT ALL DUE. In Chanceky of New Jersey. A . B. Complainant, ~| ^i^d L Interlocutory decree. 0. D. Defendant. I Upon opening the matter to the court, hy B. F. of counsel with the complainant — It appearing that, by an order made on the day of last, the defendant 0. D. was directed to appear, plead, answer, or demur to the complainant's hOl on or before the Tuesday of then next ; and it further appearing that the said order has been duly published in the manner and as is therein pre- scribed, and that the said defendant hath not appeared, plead, answered, or demurred to the complainant's bill within the time limited in the said order, or at any other time, but has wholly failed so to do ; and that the whole money intended to be secured by the mortgage in the said bill mentioned to have been made and executei by the said 0. D. to the complainant, is not yet payable. It is on this day of, &c. ordered, adjudged, and decreed by A. 0. Z. Chancellor of the State of New Jersey, that the complainant's bill be taken as confessed against the said defendant, and that it be referred to J. E. one of the masters of this court, to see what is now due and payable to the complainant for principal and interest upon his said mortgage ; and also the amount to grow due and payable thereon, and when payable, and whether with interest or not. And, in order that it may appear to the court whether a part of the mort- gaged premises can be sold to satisfy the amount which shall be reported by the master to be now payable to the complainant, without material injury to the remaining part, or whether it is just and reasonable that the whole of the mortgaged premises should be sold together — It is further ordered and decreed, that the master do examine and inquire into the nature, value, and situation of the mortgaged premises, and report to this court whether a competent part thereof can be sold separately, without material injury to the 142 remaining part thereof, to raise and satisfy the principal and interest which has become due to the complainant on his mortgage, with his costs of suit; or whether it is just and reasonable that the whole of the mortgaged premises should be sold together; and if so, that he stale shortly the facts and reasons upon which his opinion shall be founded ; and if the master should be of the opinion that only a part of the mortgaged premises ought to be sold to satisfy the amount which has become due to the complainant, that then he report to this court what part thereof ought to be sold for that purpose, to the end that such further decree may be made as the Chancellor shall think equitable and just ; and that the master make his report to this court with all convenient speed. And all further equity and directions are reserved until the coming in of the master's report. II.. MASTER'S REPORT "WHERE MONEY IS NOT ALL DUE. In pursuance of an order in this cause, made by the Chancellor, bearing date the ■ — — day of , in the year, &c. whereby it was ordered that the cause be referred to the subscriber, one of the masters of the said court, to report upon the amount now due to the said complainant, and also the amount to grow due, and when payable, and whether with interest or not, &c. I, J. E. one of the masters of said court, do hereby report to His Honor the Chancellor, that I have examined the matters referred to me by the said order, and that the complainant produced before me the three bonds men- tioned in the bill of complaint, and the indenture of mortgage given to secure the same ; and that one of the said bonds became due on the day of , in the year of our Lord, &c. and that there is due on the said bond, at the date of this report, for principal and interest, the sum of four thousand dollars. And I do further report, that on the second bond, which became due on the day of last, there is due, at the date of this report, for principal and interest, the sum of five thousand dollars. And I do further report, that there was due on the remaining bond, for interest, on the day of last, the suiji of five hundred dollars, making the total amount DECKEE FOE SALE AJSD DEFICIENCY. 143 of principal and interest, at tiie date of this report due the complainant, nine thousand five hundred dollars. And I do further report, that the last mentioned bond will become due on the day of — ■ — ■ ne,^t ensuing, and that there will then be due on the said bond, for principal and interest, the sum of four thousand dollars. All which will more fully appear by the schedule hereto annexed, and to which I beg leave to refer, as part of this my report. And I do further report, that I have examined into the nature, value, and situation of the mortgaged premises, and am of opinion and do report, that a competent part thereof cannot be sold to raise and satisfy the principal and interest which have become due the complainant on his said bonds and mortgage, with the costs of suit, but that, under the circumstances of the case, it is just and reasonable that the whole of the said mortgaged premises should be sold ; and that my reasons for this opinion are founded on the affidavits of A . B. and C. D. two disinterested persons, whose affidavits are hereto annexed. All which is respectfully submitted, &c. Dated, &c. *J. B. Master. The master, upon a reference as above, will examine the mortgaged premises, and take the affidavits of one or more persons well acquainted with the same, with a, view to satisfy himself whether the property can be advantageously divided, and a part sold sufficient to raise the money due without injury to the remaining part, and report his opinion, appending to the report »uoh affidavits as he may take in the progress of the examination and inquiry. If in his opiaion the whole of the premises ought to be sold, the decree will be as foUowB : III...FOEM OF DEGEEE -WHERE MASTER REPORTS THAT IT IS NECESSARY TO SELL THE WHOLE OP THE MORTGAGED PREMISES, "WITH DECREE AGAINST DEFENDANT FOR ANT DEFICIENCY. This cause being opened to the court by G. H. solicitor for, and of counsel with the complainant, the complainant's bill having been 144 DECEEE FOR SALE AND DEFICIENOY. heretofore taken as confessed against the defendant, and upon reading a report on file made by , Esq., one of the masters of this court, bearing date on the day of , in the year, &c. by which said report it appears that there was due to the com- plainant, at the date of the said report, for principal and interest on his mortgage mentioned and set forth in the said bill, the sum of nine thousand five hundred dollars ; and that there will become due to the complainant, on the day of • ■ next ensuing, the further sum of four thousand dollars, for principal and interest on the said mortgage ; and that a competent part of the said mortgaged premises cannot be sold to raise and satisfy the principal and interest which have become due to the said complainant on his said mortgage, with the costs of suit, but that, under the circumstances of the case, it is just and reasonable that the whole of the said mortgaged premises should be sold, and no cause being shown or appearing to the con- trary : It is therefore, on this day of , in the year, &c. by A. 0. Z. Chancellor of the State of New Jersey, ordered, adjudged, and decreed, and said Chancellor doth, by virtue of the power and authority of this court, hereby order, adjudge and decree, that the said report, and all the matters and things therein contained, do stand ratified and confirmed, and that the said mortgaged premises be sold to raise and satisfy the several sums of money due to the said com- plainant and to become due with lawful interest thereon, until the same be paid and satisfied, that is to say — the sum of nine thousand iive hundred dollars, due the complainant, on the day of — — last past, with lawful interest thereon from that date, and the further sum of four thousand dollars, the principal of the third bond of the complainant, secured by his mortgage, with interest thereon from the day of last, together with the complainant's costs of this suit, to be taxed ; and that a writ oi fieri facias do issue for that purposfe out of this court, directed to the sheriff of the county of , commanding him to make sale, according to law, of the said mortgaged premises, to raise and satisfy the said several sums of money, together with the interest as aforesaid, and costs, and that he pay the same to the complainant or his solicitor ; and that in case more OEDEE FOE FIEEI FACIAS FOE DEFICIENOT. 145 money should be raised by the said sale than shall be sufficient to answer such payments, such surplus money be brought into this court, and deposited with the clerk, to abide the further order of the court, unless otherwise disposed of by the order of the court ; and that the sheriff make return to this court of his proceedings by virtue of the said writ. And in case the proceeds of such sale shall be insufBcient to satisfy and discharge the said mortgage debt, then it is hereby further ordered, adjudged and decreed that said deficiency shall be made of the lands and tenements, goods and chattels of the said , defendant, as specifically prayed in the bill of complaint filed in this cause : it appearing to the court by affidavit [or otherwise), duly filed that notice that such relief was 'sought by said bill, has been duly served and given to said defendant according to law, and the rules and practice of this court and that a writ of fieri facias, therefor do issue accordingly, out of this court, against said defendant, for that purpose, payment of the said deficiency being hereby decreed to be made by him the said defendant, and that the sheriff make return to this court of his proceedings by virtue of the said writ: And it is further ordered, adjudged and decreed, that the defendant stand absolutely debarred and foreclosed, of and from, all equity of redemp tion of, in, and to the said mortgaged premises, when sold as afore- said by virtue of this decree. The sheriff having returned the fieri facias for the sale of the mortgaged premises, with a statement of the preceeds of the sale annexed to the writ, showing that they were not sufficient to satisfy the debt, interest and cost, the order will be as follows : rV...OEDBR FOB, FIERI FACIAS, FOE DBFICIBNOT. Whereas, by the final decree in this cause it was among other things therein adjudged and decreed as follows, to wit: And in case the proceeds of such sale shall be insufficient to satisfy and discharge the said mortgage debt, then it is hereby further ordered, adjudged 146 OEDER FOE FIEEI FACIAS FOE DEFICIENCT. and decreed, that said deficiency shall be made of the lands and tene- ments, goods and chattels, of the said defendant, as specially prayed in the bill of complaint filed in this cause, it appearing to the court by affidavit duly filed, that notice that such relief was sought by said bill, has been duly served and given to said defendant, according to law and the rules and practice of this court, and that fieri facias therefor do accordingly issue out of this court against said defendant for that purpose, payment of the said deficiency being hereby decreed to be made by him the said defendant. And whereas, it appears to the court, that the sheriff has duly executed the fieri facias issued for the sale of the mortgaged premises, and has made return to this court of the said writ and his proceedings thereon according to law, and that the proceeds of the sale of the mortgaged premises were insufBcient to satisfy and discharge the said mortgage debt, and it being ascertained by the statement of J. "W., sheriff of the county of Morris, to whom said fieri facias was delivered, annexed to said fieri facias and returned therewith, that the said mortgaged premises have been sold by him according to law, and that said deficiency is the sum of dollars and cents : It is on this day of in the year of our Lord eighteen hundred and seventy-two, hereby ordered, that a writ of fieri facias do issue pursuant to said final decree, to levy and make the said deficiency, to wit, the sum of dollars and cents, together with interest thereon, from the day of , instant (that being the day when the mortgaged premises were sold and the date of the statement of the said J. W., sheriff of Morris county, aforesaid, who sold said mortgaged premises by virtue of said fieri facias which statement was annexed to, and returned to this court with said fieri facias as aforesaid), of the goods and lands of the said defendant, together with the cost of this order, and of the said writ. A. 0. z., a If, however, the master should report that he is of opinion that a part of the mortgaged premises can be sold to pay the amount wMoli has become due, he will particularly describe the part to be sold, and the decree will be as foEows : FINAL DECBEE. 147 V...PIlsrAL DECREE AFTER REPORT FOR SALE OP PART &o. Upon opening the matter to the court this day of ■ , by Mr. , of counsel with the complainant, and upon reading and filing of the report made in this cause in pursuance of a decretal order of the court, by , one of the masters of this court, bearing date the, &c. by which said report it appears, that there was due to the complainant, at the date of the said report, on his mortgage mentioned and set forth in his bill, the sum of $ — ■ — ■, and that the further sum of $ wiU become due and payable on the, &c. together with the legal interest on the said several and respective sums of money from the, &c. (taking the language of the report as to the future instalments and interest,) and that a part of the mort- gaged premises, to wit, all, &c. Qiere set out the description of the part to he sold as in the report) can be sold to satisfy the said sum of - $ , now due and payable, together with interest thereon and costs, without material injury to the remaining part of the mortgaged premises, and no cause being shown to. the court to the contrary — It is thereupon, on this day of, &c. ordered, adjudged, and decreed, by A. 0. Z., Chancellor of the state of New Jersey, and it is hereby ordered, adjudged, and decreed, by virtue of the power and authority of this court, that the said report, and all the matters and things therein contained, do stand ratified and confirmed, and that the part of the mortgaged premises mentioned and described in the master's report for that purpose, be sold to raise and satisfy the said sum of $ , reported to be now due and payable to the com- plainant, together with the lawful interest which may accrue thereon, to be computed from the day of , being the time to which interest has been computed by the master, and also the complainant's costs, to be taxed ; and that a writ of fieri facias do issue for that purpose out of this court, directed to the sheriff of the county of , commanding him to make sale according to law of the part of the mortgaged premises before mentioned and described for that purpose, to raise and satisfy the said sum of $ , together with the interest and costs as aforesaid, and that he pay the same to the complainant or his solicitor ; and that in case more money should be raised by 148 FINAL DECBEE. such sale than shall be sufficient to answer such payment, such sur plus money he brought into this court, and deposited with the clerk, to abide the further order of this court, unless otherwise disposed of by the order of this court ; and that the said sheriff make return to this court of his proceedings by virtue of the said writ. And it is further ordered, adjudged, and decreed, that the defendant stand absolutely debarred and foreclosed of and from all equity of redemption of, in, and to, the part of the said mortgaged premises ordered to be sold as aforesaid. And inasmuch as the part of the mortgaged premises so ordered to be sold, may not sell for a sufficient sum to pay the debt, interest, and costs, ordered to be raised and satisfied as aforesaid • and also, as it further appears by the ma-ster's report, that the said mortgage is intended to secure further payments which are not yet due, with the interest which shall accrue thereon, at the time the same shall become payable, and which ought to be raised (if not otherwise paid) out of the mortgaged premises, by future sales thereof — It is therefore further ordered, adjudged, and decreed, that the complainant shall be at liberty hereafter, as shall be necessary, to apply to this court for further directions respecting the same, or from time to time to go before a master upon the foot of this decree, and obtain a report as to the amount of such deficiency, or of the amount then due and payable ; and also as to what further part of the mort- gaged premises it is proper to direct to be sold to satisfy the same ; to the end that, such report being made to this court, an order and decree may thereupon be made for a sale of the residue of the mort- gaged premises, or such part or parts thereof as may be equitable and just, and the case may require, to satisfy what shall be so reported to have become due and payable, with the costs attending such report, and the order or decree thereon. After a decree has been made, and an execution issued, for the sale of a part of the mortgaged premises, to satisfy the money due at the time of making the report, and a further sum becomes due upon tlie mortgage, the complainant may proceed, without any further order of reference, to go before a master and get another report, showing the amount which has become due since the master's eepoet foe sale of eesidue. 149 last report ; and upon getting such, report may take another decree and exe- cution, to sell such further portion of the mortgaged premises, not before sold, as may, by the said report, -be designated — and so on, until the whole of the premises shall he sold, or the mortgage satisfied. VI-FORM OF MASTER'S REPORT FOR THE SALE OF THE RESIDUE OF MORTGAG-ED PREMISES, TO SATISFY AMOUNT BECOMING I DUE AFTER FORMER DECREE AND SALE OF PART. "Whereas, by a decree made in the above cause in the Court of Chancery of New Jersey, on the day of , in the year, &c. it was, among other matters, ordered, adjudged and decreed, that the complainant should be at liberty thereafter, from time to time, to go before a master of this court, if it should be necessary, upon the foot of the decree, and obtain a report as to the amount that should be due and payable on his bond and mortgage, therein mentioned, and also as to what part of the said mortgaged premises it would be proper to sell to satisfy, the same with costs : Now, therefore, I, J. B. one of the masters of this court, do respectfJiUy report, that, in pursuance of said order, G. H. the solicitor of the said complainant, this day came before me, and produced the said decree, and also the bond and mortgage in the complainant's bUl mentioned, given by C. D. the defendant, to the said complainant, dated the r- day of , in the year, &c. and I have inspected the same, and do find that since the last report, in the said decree mentioned, the remainder of the sum intended to be secured by the said mortgage has become due and payable, and that there is due to the complainant, at the date of this report, for principal and interest upon the bond secured by the complainant's said mortgage, the simi of dollars, and that the whole of the said mortgaged premises, not heretofore sold, that is to say, [describe the premises remaining unsold) should be sold to satisfy the said debt and interest. And I do further report, that the schedule hereunto annexed, and making part of this my report, contains a statement of the principal and interest money remaining due the said A. B. on his said mortgage, 150 DECREE FOB SATE OF BESmiTE. and to which, for greater certainty, I refer. AM which is respectfbDj snhmitted. J. E. Master. Dated, ic. The schedule should show the amount of prindipal and interest lused and satisfied by former decree, and the amount which has now become due. TIL. J«BiI OF DECREE FPOS THE FOREGOEfG BEPORT FOB SAIB OF BESEDTJE OF THE MORTGAGED PBEitlSES. Upon opening the matter to the court, by G. H. of counsel with the complainant, it appearing that, by a decree of this conr^ made in the aboTe cause, on the — — day of — — . in the year. ic. among other matters, it was ordered, 'adjudged, and decreed, that the com- plainant should be at liberty thereafter, from time to time, lo go before a master of this court if it should be necessary, upon the foot of the said decree, and obtain a report as to the amount that should become due and payable on his bond and mortgage, therein mentioned, and also as to what farther part of said mortgaged premises therein referred to, it would be proper should be directed to be sold to satisfr the same; and, upon reading and filing a report made in this cause, in pursuance of the said order, by J. E. esquire, one of masters of this court, bearing date the day of , in the year. &c. by which said report it appears, that there was due the said complainaul^ at the date of the said report, on his mortgage, referred to in the biQ of complaint filed in this cause, for principal and interest ou the same, the sum of dollars, and that Uie residue of die said mor^aged premises, not heretofore directed to be sold, that is to say. {here describe the pT-:rn{s-:o- remainmg tmsoid, tij iV» the report) should now be sold, to pay and satisfy to the said complainant the said sum of dollars, together with the lawful interest thereon from the date of said report and the complainant's costs, to be taxed ; and no cause being shown to the contrary — ^It is, on this — ^ — day of , in the year, &:c. by A. O. Z., Chancellor of the state of Xew Jersey, ordered, adjudged, and decreed and the said Chancellor by DECEEE I"OE SALE OF EESIDUE. 151 virtue of the power and authority of this court, doth order, adjudge, and decree, that the said report, and all the matters and things therein contained, do stand ratified and confirmed ; and that all the residue of the said mortgaged premises, not heretofore sold, be sold, to raise and satisfy the said sum of dollars, reported to be now due and payable to the said complainant, together with the lawful interest which may accrue thereon, to bo computed from the day of , m the year, &c. the date of the said report, and also the costs of the said complainant, to be taxed ; and that a writ ot fieri facias do issue for that purpose out of this court, directed to the sheriff of the county of , comnjanding him to make sale according to law of the said residue of the said premises remaining unsold as aforesaid, to raise and satisfy the sum of dollars, together with interest and costs as aforesaid, and that he pay the same to the said coni- plainant, or his solicitor ; and that in case more money should bo raised by such sale than shall be sufficient to answer such payment, such surplus money be brought into this court, and deposited with the clerk, to abide the further order of this court : and that the said master make return to this court of his proceedings by virtue of the said writ. And it is further ordered, adjudged, and decreed, that the defendant stand absolutely debarred and foreclosed of and from all equity of redemption of, in and to the said mortgaged premises, when sold as aforesaid, by virtue of this decree. The execution in these cases will conform to the decree. The costs on the report, decree and execution are the same as in other cases ; a new bill of costs is drawn and taxed in each case ; but no retaining fees or term fees are allowed, the proceedings being considered only a continuance of the original suit. Demurrer. 152 general demueeee. viii. form of general demurrer. In Chanceky op New Jeesey. Between A. B., Complainant. and C. D., Defendant. The demurrer of 0. D. defendant, to the bill of complaint of A. B. complainant. This defendant by protestation, not confessing or acknowledging all or any of the matters or things in and by the said bill set forth and complained of to be true, in manner and form as the same are therein and thereby set forth and alleged, saith,f that he is advised by his counsel, that there is no matter or thing in the said bill contained, good and sufficient in law to call this defendant in question in this honorable court for the same, but that there is good cause of demurrer thereunto ; and therefore this defendant doth demur there- unto, and, for cause of demurrer, this defendant saith, that the said bill of the complainant (in case the allegations therein contained were true, which this defendant doth in no sort admit) contains not anj"- matter of equity whereon this court can ground any decree, or give the complainant any relief or assistance, as against this defendant. "Wherefore, and for divers other errors and imperfections in the said bill appearing, this defendant doth demur in law thereunto, and humbly demands the judgment of this honorable court, whether he shall be compelled to put in any further or other answer to the said bUl, and humbly prays to be hence dismissed, with his reasonable costs in this behalf most wrongfully sustained. E. F. Solicitor for, and of counsel ivith defendant. SPECIAL DEMUEEEE. 155 IX. FORM OF SPECIAL DEMURRER. Same as the foregoing to f then — "that he is advised by his counsel that the complainant's said bill is insufficient, and to which, by the rules of this honorable court, this defendant ought not to be compelled to make or give any answer ; and for cause of demurrer thereunto this defendant showeth, that it appears, by the said bill, that the same is exhibited against this defendant and C. D. and prays an account against the heirs and representatives of G. H. for several and distinct matters and causes, in many, whereof, as appears by the said bill, this defendant is not in any manner interested or concerned, by reason of which distinct matters the complainant's bill is drawn out to a considerable length, and this defendant put to an improper expense ; and the said bill is multifarious and joins distinct and separate matters together, which ought not to be united in one bill ; and this defendant, for further cause of demurrer, showeth, that the said C. D. in the said bill named, is made a defendant when he ought to be made a complainant ; and this defendant further, for cause of demurrer, showeth, that the heirs at law of the said G-. H. in the said bill named, ought to be made parties. And, for further cause of demurrer, this defendant, showeth, that the said complainant hath not, by his said bill, shown any sufficient matter of equity to entitle him to the relief sought in and by his said bill against this defendant, and therefore, for the said causes, and for other errors, defects, and Imperfections in the said bill, this defendant doth demur thereto, and humbly demands the judgment of this honorable court, whether he shall be compelled to make any answer to the said bill, and prays to be hence dismissed, with his reasonable costs in this behalf sustained. The solicitor will set out, briefly, in his demurrer, the special causes upon which he relies. 11 154 PLEA AND ANSWEE. Plea. X...FORM OP A PLEA, THAT THE DEPENDANT IS NOT THE PERSONAL REPRESENTATIVE OP THE DECEASED, AS ALLEGED IN THE BILL. In Chancery of New Jersey. Between A. B. Complainant, and C. D. and al. De- fendants. This defendant by protestation, not confessing or aclmowledging all or any of the matters and things in the said complainant's said bill mentioned, to be true, in such manner and form as the same are therein and thereby set forth and alleged, f to all the discovery and relief sought and prayed by the said complainant's said bill, he, this defendant, doth plead, and for plea saith, that he, this defendant, is not the executor, or administrator, or the legal personal representative of the said E. F. as in the said bill alleged, which said representative or representatives ought to be made party or parties to the com- plainant's said bill, as this defendant is advised. All which matters and things this defendant avers to be true, and pleads the same to the said bill, and humbly demands the judgment of this honorable court, whether he ought to be compelled to make any answer to the said bill of complaint, and humbly prays to be hence dismissed, with his reasonable costs, in this behalf most wrongfully sustained. G. H. Solicitor for, and of counsel with defendant C. D. XI... SHORT FORM OP PLEA AND ANSWER, BY AN HEIR AT LAW, THAT HE HAD NO LANDS BY DESCENT, ACOOM- ' PANIED BY AN ANSWER ADMITTINa THAT HE IS HEIR AT LAW. Same as foregoing to f, then say, "as to so much of the said bill as seeks any relief from a discovery from him, (save and except whether he is the heir at law of B. W. deceased, in the bill named) &ENEKAL ANSWEft. lS5 this defendant doth plead in bar thereto ; and for and by way of plea saith, that he hath not, nor hath any person or persons in trust for him, nor on the day of filing the bill, nor at any time before or since, had any lands, tenenaents, or hereditaments by descent coming from the said B. W. deceased, this defendant's father ; and this defendant, not waiving his said plea, but wholly relying and insisting thereon, for answer to the residue of the said complainant's bill, not herein before pleaded unto, or to so much thereof as this defendant is advised is material or necessary for him to make answer unto, saith, he admits he is the teir at law of the said B."W. deceased, &c. &c. 2n...F0RM OF GENERAL ANSWER OF INFANTS BY GUARDIAN. In Chancery of New Jersey. Between A. B. & C. D. & ux. Complainants, 1 and > Answer of infants. E. F. & al. Defendants. J The joint and several answer of M. F., J. F. and C. F. infants under the age of twenty-one years, by J. S. their guardian, defendants to the bill of complaint of A. B. and C. D. and wife, complainants. These defendants, saving and reserving to themselves all and all maimer of advantage of exception to the many errors, untruths, uncertainties, and other imperfections in the said bill of cpmplaint contained, for answer thereunto, or unto so much thereof as the defendants are advised is material for them to make answer unto, they, answering by their guardian, say, that they are strangers to all and singular the matters and things in the said bill of complaint contained, otherwise than that these defendants have heard that E. F. their grandfather, in the complainant's bill named, was seized of, or entitled to, certain lands and tenements in the State of New Jersey, and possessed considerable personal estate, and made some disposition thereof by last will and testament, in which these defendants have some interest ; and these defendants, being infants of tender years, 156 ANSWEE OF SECOND MOETGAGEE. submit themselves to the judgment of this honorable court, and hereby humbly hope, that whatever right or interest .they have in the real or personal estate of their grandfather, the said E. F. deceased, shall be protected and saved to them, without this, that any other matter or thing in the complainant's said bill of complaint contained, and not herein and hereby well and suflBciently answered unto, confessed or avoided, traversed or denied, is true ; and they pray to be hence dismissed, with their reasonable costs and charges, in this behalf most wrongfully sustained. J. S. Guardian of the said infant defendants. New Jersey, ss. — J. S. the guardian of the infant defendants within mentioned, being duly sworn according to law, on his oath saith, that the facts and allegations in the within answer set forth and contained, so far as they relate to the acts and deeds of this deponent, are true, and so far as they relate to the acts and deeds of other persons, he beheves them to be true ; and further saith not. J. S. Gvardian &c. Sworn and subscribed, this 16th October, 1872, before me, D. R. Master in Chantry. This form of answer neither admits nor denies any of the material parts of tlie bill upon which the eontroyersy, if any there be, arises. It is the form generally used where, upon the application of the complainant, the court appoints a guardian, who is, gsnfe'rally, the clerk of the court. The practice is to have it sworn to pro forma. XIII. FORM OF ANSWER OF SECOiSTD MORTGAGEE. The answer of G H. one of the defendants to the bill of complaint of A. B. and C. D. administrators of E. P. deceased, complainants. This defendant, now and at all times hereafter, saving and reserving to himself all manner of benefit and advantage of exception to the many errors and insufficiencies in the complainant's said bill of com- plaint contained, for answer thereto, or unto so much and such parts thereof as this defendant is advised is material for him to make ANSWER OF SECOND MOETGAGEE 157 answer unto, he answers and says, that he admits that the said J. M. and P. his. wife, in the complainant's hill named, did make and execute an indenture of mortgage, of such date and of such purport and effect as in the complainant's said hill mentioned and set forth ; and he further admits, that the said E. F. departed this life about the time mentioned in the said bill of complaint ; and that letters of adminis- tration were in due form of law granted to the said complainants ; and that the said P. wife of the said J. M. also departed this life at or about the time mentioned in the said bill of complaint; and this defendant, further answering, admits, that there is due to the said complainants, as administrators as aforesaid, the principal money in the said bond and indenture of mortgage mentioned and expressed, and set forth in their said bill of complaint, together with an arrear of interest, to this defendant unknown ; but, for greater certainty he prays that reierence may be had to the same, and the amount distinctly ascertained. And this defendant, further answering, saith, that the said J. M. having become indebted to this defendant, on the twenty-fifth day of June, in the year of our Lord one thousand eight hundred and , made and executed to this defendant his certain promisory note, bearing date the day and year last aforesaid, whereby he promised to pay to this defendant, or his order, in one year after the date thereof, the sum of one hundred and ninety dollars, with interest. And this defendant, further answering, saith, that the said J. M. in order further to secure to this defendant the payment of the said sum of money in the said note specified, together with the interest which might accrue on the said note, on the same day and year last aforesaid, made and executed to this defendant a certain indenture of mortgage, bearing even date with the said note, whereby, in consideration of the said debt, and for the further consideration of five shillings, by this defendant to him in hand paid, he the said J. M. granted, bargained, and sold to this defendant all the lands and premises mentioned and described in the said bill of complaint of said complainants, together with the rights, privileges, hereditaments, and appurtenances thereunto belonging ; and which said indenture of mortgage was nevertheless, upon the express condition, that if the said J. M. should pay unto this defendant, on or before the twenty. 158 ANSWER OF SECOND MORTGAGEE. fifth day of June, eighteen hundred and , the sum of one hundred and ninety dollars, with lawful interest from the date thereof, then the said indenture of mortgage should be void and of no effect. And the said defendant further says, that the said indenture of mortgage was acknowledged in due form of law, and recorded in the clerk's office of Somerset county, all which will appear by reference to the said mortgage, and the record thereof, now in the possession of this defendant, and ready to be produced and proved, as your Honor shall direct. And this defendant further says, that the said debt of one hundred and ninety dollars, so as aforesaid due this defendant, together with the interest thereon, still remains due and owing to this defendant. And this defendant denies all unlawful combination and confederacy in said bill charged, without that, that any other matter or thing, material for this defendant to make answer unto, and not herein or hereby well and sufSciently answered, con- fessed or avoided, traversed or denied, is true, to the knowledge or belief of this defendant. All which matters and things this defendant is ready to aver, maintain, and prove, as this honorable court shall direct, and humbly prays that a decree may be made by this honorable court, for the sale of the said land and premises in the foregoing indenture of mortgage mentioned, and set forth in the complainant's bill ; and out of the moneys thence arising, that this defendant may be paid the full amount of the principal and interest moneys so due as aforesaid, with all reasonable costs and charges in this behalf sustained. J. D. SolicUor for, and of counsel with defendant. New Jersey, ss.—G. H. the above named defendant, being duly sworn, on his oath saith, that the matters and things set forth in the above answer, so far as relate to his own acts, are true, and so far as relates to the acts of others, he believes them to be true. G. H. Sworn and subscribed, this 12th July, A. D. 18'72, before me. S. T, Master in Chancery. REPLICATION. 159 This answer is fraquontly put in without being sworn to ; but tlie practice varies in this respect. "Where tlie defendant holding a subsequent or Jarior mortgage neglects to answer, ho may still, upon the reference, lay his bond and mortgage before the master, have the priority settled, and the amount due reported ; but no costs are in that case allowed him. When the answer merely sets up another incumbrance, and admits the com- plainant's biU, no rule to confirm the report is required, nor is it necessary to set the cause down for hearing ; but a decree is made at the same time at which the report is filed. In all oases where there are outstanding mortgage incumbrances in the hands of defendants to the bill, there should be an order of reference to a master, and the master should issue summonses to such incnmbrancers to appear before him on taking the account, and that whether they have answered, or permitted the bin to be taken pro mnfesso against them. XIT...I'ORM OF REPLICATION. In Chanceky of New Jersey. Between A. B., Complainant, and > Replication. C. D., Defendant. J This repliant, saving and reserving to himself, all and all manner of advantage of exception to the manifold insufificienoies of the said answer, for replication thereunto saith, that he will aver and prove his said bill to be true, certain and sufficient in the law to be answered unto, and that the said answer of the said defendant is uncertain, untrue and insufficient to be replied unto by this repliant; without that, that any other matter or thing whatsoever, in the said answer contained, material or effectual in the law to be replied unto, con- fessed and avoided, traversed or denied, is untrue ; all which matters and things this repliant is and will bo ready to aver and prove as this honorable court shall direct, and humbly prays, as in and by his said bill he has already prayed. G. H. Sol. for a/ad of covmsel with complainant. The rephoation puts the cause at issue, and the parties are required to proceed with their testimony, pursuant to Rules Nos. 69 to Tl, inclusive. 160 COMMISSION. XV...FORM OF ORDER FOR COMMISSION TO TAKE AN ANSWER. In Chancery of New Jeksey. Between A. B. Complainant, and C. D. Defendant. On hill, &c. Order. Upon opening this matter to the court, by E. F. solicitor for and of counsel with the defendant C. D. it being made to appear, to the satisfaction of the court, that the said C. D. resides out of this state^ to wit, at Natchez, in the state of Mississippi, and that, by reason of his non-residence, he cannot duly make and certify his answer to the said bill into this honorable court, without a commission for that purpose ; and it being prayed that a commission out of and under the seal of this court, may issue to L. M., N. 0. and P. Q. esquires, of Natchez, in the state of Mississippi, to take the answer of the said defendant — It is, on this day of , in the year, &c. ordered that a commission for that purpose issue to the said L. M., N. 0. and P. Q. esquires, who are thereby appointed commissioners to take said answer of the said defendant accordingly. A. 0. Z. C, G. H. Sol. &c. Formerly, by the English practice, if the defendant resided above twenty miles from London, this commission was only granted upon the oath of the defendant, that he was unable to travel, or some other special cause, but it is now granted as a matter of course, and the practice in this court is so. XVI...FORM OF COMMISSION TO TAKE AN ANSWER. New Jersey, to wit: — The State of New Jersey to L. M., N. 0. and ,~v— P. Q. esquires, greeting : ■j L. S. [■ Whereas A. B. complainant, hath lately exhibited his *_,^_* bill of complaint before us, in our Court of Chancery, against 0. D, defendant; and whereas we have, by our writ, lately EXCEPTIONS. 161 commanded the said defendant to appear before us, in our said Court of Chancery, at a certain day now past, to answer the said bill — Know ye, that we have given unto you, and any two of you, full power and authority to take the answer of the said defendant to the said bill ; and therefore we command you, and any two of you, that, at such certain day and place as you shall think fit, you go to the said de- fendant, if he cannot conveniently come to you, and take his answer to the said bill on his solemn oath, or if he be conscientiously scrupulous of taking an oath, then on his solemn afBrmation, to be administered by you, or any two of you, the said answer being distinctly and plainly written upon paper. And when you shall have so taken it, you are to send the same, closed up, under the Seals of you, or any two of you, unto us, in our said Court of Chancery at Trenton, together, with this writ. Witness his Honor A. 0. Z., Chancellor of our said state, at Trenton aforesaid, the day of , in the year of our Lord, &c. H. s. L. cm. G. H. Sol. &c. An answer may now be sworn to before any commissioner .appointed by the Governor of this state, to take acknowledgments and proofs of deeds, in any of the States or Territories of the United States, or before any ambassador, or public minister, charge d'affairs, consul or vice-consul, or consular agent of the United States, for the time being, in any foreign country. See Nixon's Dig. p. 154, sec. 52— p. 155 sec. 5t— p. 159 sec. 81— Laws of 1812, p. 96— Rule 164. XVII...FORM OF EXCEPTIONS TO DEFENDANT'S ANSWER. In Chancery of New Jersey. Exceptions fo defendants answer. Between A. B. Complainant, and C. D. Defendant . Exceptions to the answer of C. D. defendant, to the bill of com- plaint of A. B. complainant. 162 EXCEPTIONS. First Exception. — For that the said defendant has not answered whether, as is alleged in the said bill, a considerable part of the said devised premises consists of woodland, the timber of which would be particularly useful and valuable to the complainant. Second Exception. — For that the said defendant has not answered whether he has cut down a number of the trees and timber standing upon the said premises, and threatened to cut down and carry away the wood and timber there being, his answer in this respect being altogether evasive. Third Exception. — For that the said defendant has not answered the following charge in ^le bill, viz : " that he has no real estate, and very little, if any, personal estate, and will be altogether incompetent to render compensation for the damages he is about committing upon the said property, unless he should be restrained by the interference of this honorable court," his answer in this respect being altogether evasive. Fow-th Exception. — For that the insinuation conveyed in the follow- ing passage of the defendant's answer, viz : " he cannot account for the inducement of the complainant in sending an agent to the state of Ohio to purchase this defendant's said farm, except for the purpose of circumventing and cheating this defendant,'' is scandalous, and ought to be expunged. In all which particulars the said complainant excepts against the said defendant's answer, as evasive, imperfect, insufficient and scandalous, and therefore prays that the defendant put in a further and better answer thereto. E. F. Sol, (md of counsel with the complainant The oomplaiuant may except to an answer for impertinence, scandal and nsufficienoy at the same time; but lie is not allowed, after a reference for impertinence or scandal, to refer the answer for insufficiency, nor vice versa. Upon filing the exceptions, the complainant must serve a copy on defendant or his solicitor, and wait six days before he enters with the clerk his rule to refer the exceptions and answer to a master, that the defendant may have an opportunity to amend the answer in the particulars excepted to, if he thinks lit. — See Eules, title " Uxc^tions." EEFEEEING EXCEPTIONS. 163 XVni...FOEM: OF RULE FOE, REFERRING EXCEPTIONS. In Chancery of New Jersey. January 28, 18'72. Between A. B. Complainant, and C. D. Defendant. The complainant having filed exceptions to the answer put in by the defendant to the complainant's bill in this cause, it is ordered, that it be referred to B. F. esquire, one of the masters of this court, to look into the complainant's bill, the answer thereto, and the said exceptions, and examine and report to this court, with all convenient speed, whether the said exceptions be well taken or not. Entered by G. H. solicitor for complainant. By the court. H. S. L., Clk. XIX...FORM OF MASTER'S REPORT ON EXCEPTIONS TO ANSWER. In Chancery of New Jersey. Between A. B. & al. Complainants, | q^ exceptions to a^iswer, &c. \ Master's report. C. D. & al. Defendants. J In pursuance of a rule of the Court of Chancery, entered in the aforesaid cause, bearing date on the day of ■ last, whereby the exceptions filed by the complainants to the answer of the defend- ants are referred to the subscriber, one of the masters of the said court, to report thereon, the master hasJ)een attended by the solicitors of the said parties, who have thought proper, without argument before the said master, to submit the matter in reference upon the said answer and exception's. And the said master, having examined and considered the said answer and exceptions, doth respectfully report to his Honor, the Chancellor thereupon, as follows : 164 mastee's eepoet. 1. The first exception is not, in the opinion of the master, well taken, inasmuch as, &c. {stating the reason, and so on, as to the various exceptions, and conclude.^ All which is respectfully submitted. B. F. Master in Chancery. Dated, &c. If, in consequence of the exceptions being disallowed, the complainant takes an order to amend Ms bill, and flies his amendments, and they require a further answer, the following will be the proper order. But if the defendant abides by his answer, that part of it which relates to amendments, &o. will be omitted. XX...FORM OP ORDER COKPIRMING MASTER'S REPORT ON EXCEPTIONS TO ANSWERS, &c. In Chancery of New Jersey. Between A. B. & al. Complainants and 0. D. & al. Defendants. On hill and answer. " Exceptions, and masters' report thereon. It appearing to the court that C. E. esquire, one of the masters of this court, to whom a reference had been made, by an order of this court, of the exceptions taken and filed by the complainants to the defendants' answer, hath made a report against said exceptions, in favor of the said defendants' answer, (and it appearing that the said complainants have obtained an order to amend their said bill, and have filed such amendments, and that the same requires a new, or further answer, from said defendants) — it is now, on this day of , in the year of our Lord, &c. ordered, adjudged and decreed, by his Honor, A. 0. Z. chancellor of the state of New Jersey, at a Court of Chancery held at Trenfon, on motion of E. P. solicitor and of counsel with the defendant, that the said master's report be ratified and con- firmed, and the exceptions of the complainants be overruled, with costs, (and that the said defendants, by this decree, are entitled to their costs of the complainants, to be taxed on their amended bill and further answer.) Dated, April 8, 1872. EXCEPTIONS TO MASTBe's EEPOET. 165 Where, in the course of a litigated cause, matters are referred to a master for examination and report, and either party is, upon the coming in of the report, dissatisfied, he may file exceptions thereto, which are in the nature of an appeal to the chancellor. The following, is a form of exceptions to a master's report in such case : X:5tl...P0RM OF EXCEPTIONS TO MASTER'S REPORT. In Chancery of New Jersey, Between A. B. Complainant, and C. D. Defendant. ► On interlocutory decree. Exceptions taken by the defendant in this cause, to the report made therein, on the eleventh day of October, eighteen hundred and seventy-two, by B. F. esquire, one of the masters of this court, to whom this cause stands referred by the decretal order made in the said cause, bearing date the fifteenth day of July, eighteen hundred and , touching the matters therein referred to him. First Exception. — For that the said master has, by his said report, charged this exceptant with the value of the crops growing on the devised premises and other receipts and privileges, amounting to two hundred and fifty dollars, with interest thereon from the twenty-fifth day of March, eighteen hundred and , whereas he ought not to have been charged with the same at all, either according to the terms of the said decretal order or the principles of equity, oi-, if he ought to be charged with the same, the same, and each of them, are estimated and valued too high, both in quantity and value, and the said master hath altogether omitted to deduct therefrom any sum for the support of the exceptant and his family. (^And so through excep- tions, and conclude.) In which said several matters and yespects, herein above particu- larized, this exceptant excepts to the said report, and humbly con- ceives that the said master hath erred, and that the said report is wrong, unjust and inequitable; and therefore prays that the said report, so far as regards the several particulars above specified, may 166 be disallowed, rejected and set aside, and a new report be ordered to be taken, or that the said report may be corrected in the said several particulars, and prays the judgment of this court thereupon. J. S. Sol. and of counsel with excitant. Order. XXII...FOIIM OF ORDER CORREOTINa AND CONFIRMING MASTER'S REPORT. In Chancery of New Jersey. Between A. B. Complainant, and C. D. Defendant. This cause, coming on to be heard upon exceptions to the master's report, in the presence of E. F. of counsel with the complainant, and J. S. of counsel with the defendant, and the report in this cause, made, in pursuance of a decretal order of this court, by B. F. esquire, one of the masters of this court, bearing date on the eleventh day of October, in the year of oar Lord one thousand eight hundred and , and the exceptions taken thereto by the defendant being produced and read, and it appearing, by the said report and excep- tions, that the said master hath charged the defendant with the sum of one hundred and eighty dollars for four hundred bushels of corn, at forty-five cents per bushel, as contained in schedule A. annexed to his said report, and that the defendant hath excepted to the said charge, and it appearing, to the satisfaction of the Chancellor, that the said charge is erroneous, and ought not to be allowed — It is ordered, that the said report be corrected by striking there- from, and from schedule A. thereunto annexed, the said sum of one hundred and eighty dollars, therein charged as aforesaid against the said defendant. And it further appearing, to the satisfaction of the Chancellor that all other and further exceptions taken by the defendant to the NOTICE OP TAKING DEPOSITIONS. 167 said report of the said master are erroneous and without foundation — It is ordered, that the same bo, and they hereby are severally over- ruled and disallowed. And it is further ordered, that the said report of the said master, so corrected as aforesaid, and all the matters and things therein con- tained, do stand ratified and confirmed, by the order, authority and decree of this court. XXIII...FORM OF NOTICE OF TAKING DEPOSITIONS. In Chanceby op New Jersey. On hill, &c. Between A. B. Complainant, and 0. D. Defendant. Sir : — Take notice, that the depositions of witnesses will be taken in this cause, on behalf of the defendant 0. D. at the house of E. F. innkeeper in Camden, on the first day of March next, at the hour of ten in the forenoon, before G. H. esquire, one of the masters and examiners in the Court of Chancery of New Jersey. Dated, February 10, 1872. Yours, &c. J. S. Sol. and of counsel with 0. D. the defendant. To J. E. Solicitor of complainamt A. B. This notice should be served at least four days before the day appointed for taking the examinations. 168 EXAMINATION 0]? WITNESSES. XXIV...FOEM OP SUBPCENA AD TESTIFICANDUM. The State of New JicRSEV to M. N. and P. Q. greeting : * ■ * For certain reasons, offered before us in our Court of ■j L. S. |- Chancery, we command you, that you personally he and * — . — * appear before G. H. esquire, one of the masters and examiners in our Court of Chancery, at the house of E. F. innkeeper in Camden, in the county of Gloucester, on the first day of March next, at ten o'clock in the forenoon, to give evidence in a certain cause now depending in our said Court of Chancery, wherein A. B. is complainant, and C. D. is defendant. Hereof fail not, under the penalty of two hundred dollars. Witness, A. 0. Z. our Chancellor, at Trenton, the first day of June, in the j-ear of our Lord eighteen hundred and seventy-two. H. s. L. cm. J. S. Sol. XXV. FORM OF EXAMINATION OF WITNESSES. Examination of witnesses, &c. in a cause depending in the Court of Chancery of the State of New Jersejr, wherein A. B. is com- plainant, an'd C. D. is defendant, taken at the house of E. F. innkeeper, in the city ofi , on the day of , in the year of our Lord, &c. before G. H. one of the masters and examiners of the said court, in the presence of I, H. solicitor and of counsel for the said complainant, and of J. S , solicitor and of counsel for the said defendant. A. C. of the township of Amwell, in the county of Htmterdon, a witness produced on the part of the aforesaid complainant, being duly sworn, deposeth and saith, &c. &c. Examine carefully rules Nos. 64 to 84, as to duty of examiners, and mannei of proceeding in taking testimony. The examiner should state by which party the witness is produced, mark all exhibits made in the margin, as well as note them in the body of the written examinations, endorse his fees on the back of the depositions, against botli ORCEE FOE COMMlSSIOSr. l69 parties ; and if paid by the parties, or either of thero, or their solicitors, so note, and by ■whom paid, that the clerk may tax the costs in the bill, at the end of the suit, accordingly. The examiner is entitled to twenty cents for swearing each witness, twenty cents per folio for the examination, and ten cents for marking every exhibit ; and each party pays for his own examinations and cross-examinations, and swearing his own witnesses. If the examiner would also note, at the foot of the examinations, after they are signed and closed, what witnesses attended before him for each party, and for how many days, what distance they came, and whether from another county or not, it would obviate a difficulty, often experienced years afterwards, in settUng the bms of cost. XXVI...FORM OP ORDER POR COMMISSION TO EXAMINE WITNESSES. Between A. B., Compl't and C. D., and al. Def ts. In Chancery of New Jersey. Order for commission, &c. Upon motion made this day in open court, by J. S. solicitor for the complainant, and it appearing, by affidavit, to the satisfaction of the Chancellor, that A. C, B. C. and D. C. are material witnesses for the complainant in this suit, and that the said A. C, B. 0. and D. C. do not reside in the State of New Jersey, but reside at Culmore, in the county of Londonderry, in Ireland, and that the said complainant cannot safely proceed to the hearing of this cause without benefit of their testimony — It was thereupon prayed, that a commission might issue, out of and under the seal of this court, directed to B. F. esq., of Culmore, and B. G. of Walworth, in said county, to authorize them, or either of them, to examine the said witnesses above named on oath or affirmation, upon the interrogatories annexed to the said commission, and to reduce such examination to writing, and to return the same, annexed to the said commission, into this court, with all convenient speed, which is ordered accordingly. A. 0. Z. Ch. Dated, April 12, 1872. 13 170 COMMISSIOS, OATHS, &0. To obtain the above order, produce an aiBdavit of the party, or one of them, stating the names and residence of the witnesses, that they are material, &c. The motion must be made on eight days' notice to the adverse party, apprizing him of the names and residences of the witnesses and of the commissioners proposed to be nominated. See rules of the court, title, "Examinations." XXVII...FORM OF COMMISSION, OATH, &c. New Jersey, ss. — The State of New Jersey to B. F. esquire, of Culmore, andB. G. esquire, of Walworth, in the county of Londonderry, ^-~-' — ^ Ireland, greeting : ] L. S. !■ Know ye, that we, in confidence of your prudence and 4t,_^_,* fidelity, have apppointed you, and by these presents do give unto you, and either of you, full power and authority diligently to examine A. C, B. C. and D. C. of Culmore, in the county of Lon- dondery, in Ireland, upon certain interrogatories, to be exhibited to you, as well on the part of the complainant A. B. as upon the part of the defendants C. D. and A. D. executors of the last wOl and testament of E. D. deceased, and others, defendants, or either of them ; and therefore we command you, or either of you, that on certain days and places, to be appointed by you for -that purpose, you do cause the said witnesses to come before you, or either of you, and then and there examine each of them, apart, upon the said interrogatories, on their respective corporal oaths or afSrmations, first taken before you, or one of you, upon the holy evangelists, and that you do take such their examinations, and reduce them to writing ; and when you have so taken them, you are to send them to us, in our Court of Chancer}^, without delay, closed up and under your seals, , or the seal of one of you, distinctly and plainly set, together with the said intenogatories and this writ. And we further command you, and each of you, that, before you act in or be present at the swearing or examining any witness or witnesses, you do severally take the oath INTEEEOGATOElES TO 6E AljiSTEXEI). l7l first specified in the schedule hereto annexed, before some person competent to administer the same. Witness A. 0. Z. Chancellor of the State of New Jersey, at Trenton, this twelfth day of April, in the year of our Lord one thousand eight hundred and — . H. S. L. Clh. J. S. Sol. of complt Schedule. — Commissioner's oath. I do swear, that I will, according to the best of my skill and Imowledge, truly, faithfully and without partiality to any or either of the parties in this cause, take the examinations and depositions of all and every witness and witnesses produced and examined by virtue of the commission hereunto annexed, upon the interrogatories now produced and left with me, and that I will not publish, disclose, or make known to any person or persons whatsoever, the contents of all or any of the depositions of the witnesses, or any of them, in the said commission named, until publication shall pass by rule or order of the High Court of Chancery of the State of New Jersey ; so help me God. B. F. B. G. Sworn before me, at Newton, in the county of Londonderry, a magistrate for said county, this 25th day of October, 1872. C. D. XXVIII...I'ORM OP INTERROGATORIES TO BE ANNEXED. Interrogatories to be administered to witnesses to be produced and sworn and examined, in a certain cause, depending in the High Court of Chancery of the State of New Jersey, wherein A. B. is com- plainant, and C. D. and A. D. executors of the last will and testament of R. D. deceased, and others, are defendants. I. Interrogatory on the part of the complainant.-^Do you know 172 INTEEEOGATOEIES TO BE AilNEXED. the parties complainant and defendant in the title of these interroga- tories named, or any and which of them, and how long have you known them, or any and which of them, respectively? Declare the truth and your knowledge herein, &c. &c. J. S. Solicitor and of counsel with complainant. Approved. A. 0. Z. Ohancelhr. Commissioner's return. — The execution of the foregoing commission appears by the depositions hereunto annexed. So answer, B. F. B. G. Commissioners. If the defendant's solicitor desires to submit cross-interrogatories, he is at liberty to do so, and will prepare them in the same form as above. They should be entitled, " Cross interrogatories to he administered, &c. on tUepairtof the defendant" and be signed and submitted to the chancellor for approval, before being annexed to the commission. Each party must furnish the adverse party, joining in the commission, with a copy of his interrogatories ; of the direct interrogatories six days, and of the cross-interrogatories two days, before forwarding the commission. If a defendant is desirous of submitting interrogatories to a complainant, he is at liberty to do so within fifteen days after he has filed his answer to the complainant's bill (but not later, without leave of the court) ; and, having filed his interrogatories in the clerk's office, he must give the complainant's soUcitor notice that he has done so ; and the complainant is required to answer them, under oath, within thirty days after service of the notice, vmless he excepts to them, in which case he must file liis exceptions in ten days after notice. See Hules, title " Interrogatories." EULE TO CONFIRM EEPOET. 173 XXIX...FOEM OP INTERROGATORIES BY DEFENDANT TO A COMPLAINANT, AFTER ANSWER. In Chanceky oy New Jehset. Between A. B. and C. his wife, Complainants," and E. F. and G. H. Defendants. ' On bill, &c. Interrogatories to be exhibited to A. B. one of the complainants. First Interrogatory. — Were you, or were you not, in the possession and occupancy of the mansion-house, late of I. F. deceased, after his death ? If yea, how long, in what manner, by whose authority, and upon what terms, did you occupy and enjoy the same ? (And so on through the interrogatories, and conclude') — Declare the truth of the several matters in the foregoing interrogatories inquired after, according to the best of your knowledge, remembrance, in. formation and belief. H. G. Sol. and of counsel with defendants. XXX...FORM OF RULE TO CONFIRM REPORT. Between A. B. Complainant, | and l February 2, 1872. C. D.' Defendant. J Upon reading and filing a report, made in this cause by J. S. esq., one of the masters of this court bearing date on the thirty-first day of January, in the year of our Lord one thousand eight hundred and It is ordered that the said report, and all the matters and things therein contained, do stand, in all things, confirmed, according to the 174 ORDER TO ANSWER. true tenor and meaning thereof, itnless the defendant shall, within eight days after notice thereof, show good cause to the contrary. Entered by G. H. Solicitor of the complainant. By the court. H. S. L. Clk. The above is a common rule, and entered in the oommou rule book at the clerk's office. XXXI-.-FOBM OF OEDEE TO ANSWEE. It appearing to the court that process of subpoena to appear and answer, directed to the defendants, hath been duly issued, and returned to the day of last, served upon the defendants according to law, by the sheriff of the county of Mercer, and that they have not, nor hath either of them, filed any plea, demurrer or answer to the complainant's bill within the time limited by law, or at any other time — "Whereupon it is, on this day of , in the year, &c. on motion of G. H. of counsel with the complainant, ordered, that the said defendants do file their answer to said bill within forty days after service upon their solicitor of a copy of this order, and that in default thereof, the said bill be taken as confessed against them. Serve a copy of this order as directed, and if no answer has been put in within the time limited, make affidavit of service, and take decree pro confesso, or an order to examine witnesses, and proceed ex parte, as the case may require. XXXII...FOEM OF OEDEE FOE TIME TO ANSWEE. On opening the matter to the court this day, by G. H. of counsel with the defendant G. D. and on good cause shown— It is ordered, on motion as aforesaid, that the said defendant 0. D. have thirty days to file his answer to the complainant's bill of complaint, from and after the date of this order. Dated, &c. OEDEE FOE LEAVE TO AMEND. 1Y5 Orders of this nature are usually granted ex parte, and without notice, upon satisfying the court that there has been no laches, and that further time is rendered necessary by the circumstances of the case or the situation of the party. But is an appUcation addressed wholly to the discretion of the court. XXXIII...FOEM: OF ORDER FOR LIBERTY TO EXAMINE A CO-DEPENDANT. Upon opening the matter to the court, by G. H. of counsel with the defendant 0. D. it being alleged that E. F. one of the defendants in the above stated cause, is a material witness for the said C. D. and that he is not interested in the matters in question in the said cause — It is ordered, that the said 0. D. be at liberty to examine the said E. F. as a witness for him, the said C. D. in the said cause, saving all just exceptions. Dated, &c. This order may be usually had on motion, and without affidavit, where the facts warrant the allegation in the order. Since the passage of the law permitting parties to be called as witnesses, this proceeding is rarely resorted to. XXXIT...FORM OF ORDER FOR LEAVE TO AMEND. It appearing to the court that B. P. one of the above named defendants, was made a defendant in the bill of complaint in this cause by mistake, she having died before the filing of the bill, and that the cause of action survives against the remaining defendants — It is ordered, on motion of G. H. of counsel with the complainant, that the name of the said E. F. be stricken out of the said bill, and that the cause proceed, at the suit of the complainant, against the remaining defendants. Dated, &c. The complainant may amend his bill, {mdess it has been sworn to) of course, and without motion or rule, at any time before answer, plea or demurrer filed, without costs. 176 OEDEE OVEEEULING DEMUEEEE. No costs are allowed for amendments rendered necessary by parties' own mistake. See Rules in reference to amendments. XXXT...FORir OP ORDER TO AMEND IN SPECIAL CASE. It appearing to the court that E. F. one of the defendants in this cause, has filed his answer, stating, among other things, that one G. H. has certain accounts of the estate of complainant's testator, which, if made a party, he is willing to exhibit, and is desirous of having settled, and that the said defendant has himself very little knowledge of the situation of that estate — It is, on this day of , in the year, &c. on motion of J. K. of counsel with the complainant, ordered, that the said complainant have leave to amend his bill, by making the said G. H. a party defendant thereto ; and that the said defendant answer the complainant's said bill, as amended, at or before the day of next. This is where it is understood the defendant will answer without process ; where that is not the case, a new party, inserted hy way of amendment in the biU, must be brought in by regular process, or by order served under direction of the court, and will have till the expiration of the time limited in the order served to iile his answer. XXXVI...rOEM OP ORDER OVERRULING DEMURRER. It appearing to the court that the defendant has not set down the demurrer filed by him for argument at the present term, according to the rules of this court, (or, " has not brought on the argument of the demurrer," if he sets it down, and fails to argue it) — It is ordered, on motion of E. F. of counsel with complainant, that the said demurrer be overruled, with costs, and that the defendant answer the complainant's bill within forty days.. Dated, &c. SECTJEITY FOE C06TS. 117 XXXVII...F0E1I OP ORDER OVERRULING DEMURRER, UPON ARGUMENT. The Chancellor, having heard the arguments of the counsel for the respective parties, on the demurrer filed in the above cause — It is ordered, on motion of E. F. of counsel with complainant, that the said demurrer be overruled, with costs, to be paid by the defendant, and that the defendant file his answer to the complainant's bill in forty days ; and if he fail so to do, that the said bill be taken as confessed. Dated, &c. SXXVIII...FORJI OF ORDER TO SPEED CAUSE. It appearing to the court that the defendants in the above slated cause filed their answer to the complainant's bill on the day of last past, and that the said complainant has not, since that time, taken any proceeding in his said cause — "Whereupon it is, on motion of G. H. of counsel with the said defendants, ordered, that the said complainant do speed his cause on or before the first day of the next stated term of this court, or show cause why his said bill be not dismissed, with costs ; and that a copy of this order be served, within thirty days from the date thereof, on the said complainant or his solicitor. Dated, &c. Serve copy as directed, and if complainant does not proceed or show cause, move for dismissal, in term or at chambers, to which you will be entitled upon affidavit of the regular service of the order. XXXIX...FORM OF ORDER FOR SECURITY FOR COSTS. It appearing to the court that A. B. the complainant in the above stated cause, resides out of the state of New Jersey and in the state of New York — It is thereupon, on motion of G. H. of counsel with C. D., the defendant ordered, that the said A. B. file security for 178 SrGGESTING DEATH OF A COMPLAINANT. costs in this cause, and that until this order be complied with all further proceedings in the cause be stayed. Dated, &c. The defendant is alwars entitled to this security where the comjilainant is a non-resident, and it is not sufficient that complainant's soUcitor proSers himself ready to guarantee costs ; a sufficient bond must be given, and filed in the clerk's office. One hundred dollars is the usual penalty inserted in the bond. Xo affidavit is necessary, the fact of non-residence appearing in the biU. XL...FORM OF OBDEE SUGGESTING DEATH OF A COifPJQAIXANT AND THAT SUIT PROCEED DT THE NAME OF SURTTTIXG COMPLAIN AJJTCS. It appearing by affidavit^ to the satisfaction of the courts that A. B. oae of the complaiiiants in the above stated cause, hath departed this life since the last stated term of the court, and that the cause of action survives to the surviving complainants — ^It is ordered, on motion of G. H. of counsel with the said surviving complainants, that the said suit proceed against the defendants in the name of the surviving complainants. If a defendant has died, say — It appearing, .fee. that E. F. one of the defendants, &c. has departed this life, &c. and that the cause of action survives to the complainants against the surviving defendants — Itis ordered, &c. that the suit proceed againstthe surviving defendants. Dated, &c. See IHxon's Digest, title " Abatement," page 2, sec 4. XLI...FORM OP ORDER SUGHJESTIXG DEATH OP THE PEFEXDAiTr, WHERE THE REPRESEXTATTTES OF THE DECEASED DEPENDANT HATE BECOME DfTERESTED IN THE SUIT, AND THE COMPLAINANTS CHOOSE TO M.AKE THEM PARTIES. It appearing to the court, by affidavit^ that, since the last stated term of the court^ G. B. the defendant to the said suit, has departed SUBSTITUTING MASTEE. 1Y9 this life, and that, by the death of the said Gr. B., L. M. and P. Q., who are the heirs at law of the said G. B. deceased, have become interested in this suit, and that the complainants choose to make them parties defendants hereto — It is, on motion of J. K. of counsel with the complainants, ordered, that the said suit stand revived, and that the said L. M. and P. Q. heirs at law of the said G. B. deceased, be made defendants thereto, in the place and stead of the said G. B. deceased. A.nd it is further ordered, that the said L. M. and P. Q. appear, and put in their answer, or signify their disclaimer of this suit, and the matters in controversy therein, at or before the next term of this court ; and, in case they fail so to do, that the com- plainants may cause their appearance to be entered, and the answer of the said G. B. heretofore put in, be deemed and taken as, and for the answer of the said L. M. and P. Q. And the complainants shall cause a true copy of this order to be served personally on the said L. M. and P. Q. defendants, as aforesaid, within thirty days from the date hereof. See NvwrCs Digest, title " Abatement," for the law on this subject applicable to the various oases that may occur in practice. By varying the above forms, as occasion may require, an order may be readily drawn to meet any case. XLII...POKM OF ORDER SUBSTITUTING MASTER. It appearing to the court that J. H. esquire, one of the masters of this court, to whom certain matters in the above cause were referred by a decree, made on the day of , one thousand eight hun- dred and , has left this state, and that no report has been made by him touching the matters of the said reference — It is now, on this day of , in the year of our Lord one thousand eight hundred and , on motion of L. E. solicitor for and of counsel with the complainants, and in the presence of G. W. solicitor and of counsel with the defendants, ordered, that G. D. esquire, one of the masters of this court, be substituted in the room and stead of the 180 COMPLAINAOT' ELECT TO PROCEED. said J. H. esquire, and that the said G. D. esquire, proceed in the said matters referred to said J. H. esquire, in all respects as the said J. H. esquire, was authorized and directed to do by the aforesaid decree, and that he make report with all convenient speed. XLIII...FOEM OF ORDER SUBSTITUTING SOLICITOR. It appearing to the court that L. M. the solicitor of the complainant in the above stated cause, has ceased to practice as solicitor of this court — It is, on this day of , in the year, &c. ordered, that G. H. be substituted as solicitor for the complainant, in the place and stead of the said L. M. on motion in behalf of the complainant. The same form is used to substitute solicitor for ckfendcmt, merely changing the word. XLIV...FORM OF ORDER THAT COMPLAINANT ELECT TO PROCEED AT LAW OR IN EQUITY. Upon opening the matter to the court, by G. H.,of counsel with the defendants, it appearing that the complainant doth prosecute the defendants, both at law and in this court, for one and the same matter, whereby the defendants are doubly vexed, and put to unnecessary costs and expenses — It is thereupon, on this day of , in the year, &c. ordered, that the complainant do, within thirty days after service upon him, or his solicitor, of a copy of this order, make his election in which court he will proceed ; and if ne shall elect to proceed in this court, then his proceedings at law are hereby stayed by injunction, but, in default of such election by the time aforesaid, or if the the said complainant shall elect to proceed at law, then the complainant's bill is from thenceforth to stand absolutely dismissed out of this court, with costs, to be taxed. Serve copy as directed. If complainant elects to proceed in chancery, he will file his certificate of such election in the clerk's office within the time. If he does not, upon proof of service of the order, the chancellor wiU order his bUl dismissed, and execution to issue for costs. SHOW CATTSE ON ArrACHMENT. 181 XLV-PORM OF ORDER TO PAY OYER MONEY DEPOSITED TO ANSWER COSTS IN THE COURT OF APPEALS. Upon opening the matter this day, by G. D. of counsel with A. B. and it appearing to the court that the said A. B. on filing an appeal, from the decree made in this cause, to the Court of Appeals in the last resort in all causes of law, deposited with the clerk of this court the sum of one hundred dollars, pursuant to the rules and practice of the said court, to ansysrer the costs of said appeal, and that the said appeal has been determined by the said Court of Appeals, and the proceedings have been remitted into this court, to proceed further thereon according to law ; and it being further shown to this court that there is no claim on the said sum for costs in the Court ot Appeals — It is ordered, that the clerk of this court do forthwith, on the service of this order upon him, pay to the said A. B. or his solicitor, the said sum of one hundred dollars, so deposited with him as aforesaid, deducting his lawful commissions. Upon motion of G. D. solicitor for A. B. Dated, &c. No petition is necessary to obtain money deposited in court to answer the costs of an appeal. The practice is, to get the receipt or certificate of the cleric of the Court of Appeals that the costs are satisfied, or that none has been awarded against the party in that court, and the order to pay over is signed on mere motion, ez pwrte. The clerk is entitled, upon all deposites, to the following fees : on the first $100, one per cent.; on the excess beyond that sum, and not exceeding $1000, the half of one per cent.; on the excess over $1000, the one-fourth of one per cent. XLVI...PORM OF ORDER TO SHOW CAUSE WHY AN ATTACHMENT SHOULD NOT ISSUE. Upon opening the matter to the court, by G. H. solicitor and of counsel with the complainant, and upon reading the affidavit of D. C. whereby it appears that the said defendants, John Doe and Eichard Roe, have been guilty of a violation of the injunction here- 182 oEDEE POE ATTACHMENT. tofore issued against them in this cause, and on motion as aforesaid — It is, on this day of , in the year of our Lord one thousand eight hundred and , ordered, that the said John Doe and Richard Eoe show cause, on the day of next at the state house in the city of Trenton, at the hour of ten o'clock in the forenoon, why an attachment for contempt should not issue against them. A. 0. Z., C. The court may, in its discretion, order an attachment to issue in the first instance ; but the usual practice, unless the case be one of very gross character, is to grant first the rule to show cause. Serve a copy of the order on the party, and if he fail to appear and show good cause at the time named, you may take an order for an attachment, upon proof of the service of the order. XLVII...FORM OF ORDER FOE ATTACHMENT. Upon reading and filing the afSdavits of L. M., N. 0. and P. Q. f and.on application in behalf of G. H. of counsel with the complainant — It is ordered, that an attachment, as for a contempt, he issued against Johu Doe and Richard Roe, agents of the defendants, upon whom the original injunction in this cause was duly served, and who have violated the same, returnable to the day of next. Dated, &c. f Or, " It appearing to the court that, by an order dated, &c. J. D. and R. R. were directed to appear on the day of instant, and show cause why an attachment should not issue against them for an alleged violation of the injunction heretofore issued in this cause, and that they have not, nor hath either of them, appeared or shown cause,- as by the said order they were directed to do, although a copy of that order was duly served upon them,'' and on application, &c. WEIT OF ATTACHMENT. 183 XLVIII...FOEM OF A WRIT OF ATTACHMENT. New Jkeset, to wit. — The State of New Jersey to our sheriff of our jit'~-^^-^ county of greeting : ] L. S. >■ We command you to attach "W. "W. so as to have *__,.^* him before our Chancellor, in our Court of Chancery. on the day of next, at Trenton, then and there to answer, as well touching the contempt which he, as is alleged, hath committed against us, as also such other matters as shall be then and there laid to his charge, and further to perform and abide such order as our said court shall make in this behalf : and thereof fail not. And have then there this writ. Witness his Honor A. O. Z. Chancellor, at Trenton aforesaid, the day of , in the year ot our Lord one thousand eight hundred and . H. S. L., Clk. G. H. Sol. There must be fifteen days, exclusive, between the teste and return of the writ, unless the court order otherwise. AU the defendants in attachment, residing in the same county, must be inserted in the same writ. ' The defendant, when arrested, must remain in custody, or enter into bond, with one good surety, in the penal sum of $500, conditioned for his appearance on the return day, &c. On the return day, he must enter his appearance with the clerk", and give notice thereof to the adverse party. The complainant wUl, within eight days thereafter, enter a rule, in the clerk's office, for defendant's examination upon interrogatories touching his alleged contempt, before -a, master. A copy of the rule and interrogatories must be served on the defendant. The defendant has four days after the appearance day before the master to put in his examination in writing ; and the master shall, if required by com- plainant, report, with the interrogataries and examinations, whether, in his opinion, the examination is fuU and satisfactory or not. See Eules, title '' Attachment for contempt.'" 184 WElT 01* NE EXEAT. XLIX...FORM OF ORDER FOR NE EXEAT. The complainant having filed his bill against the defendant, to be relieved touching the matters therein contained, and now, upon reading the afiidavit of E. F. annexed to the said bill, whereby it satisfactorily appears that the defendant C. D. designs quickly to depart from this state, it is, on motion of G. H. of counsel with the complainant, ordered, that a writ of ne exeat be awarded against the said C. D. until he shall fully answer the complainant's bill, and this court shall make other order to the contrary : and the said writ is to be endorsed in the sum of five hundred dollars, in words at length, and not in figures. The chancellor will grant this order, without notice, in term time or in vaca- tion, upon satisfactory proof that the defendant designs quickly to depart from this state. L...PORM OF WRIT OF NE EXEAT. New Jersey, to wit. — The state of New Jersey to our sheriff of our ^. — ^-r-^ county of Mercer, greeting : •J L. S. >• Whereas it is represented to us, in our Court of Chancery, * — , — * before our Chancellor, on the part of A. B. complainant, against C. D. defendant, that the said C. D. designs quickly to go into parts without the state of New Jerse}^, as by oath, on that behalf made, appears, which tends 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 C. D. personallj'' to come before you, and give suflScient bail or security in the sum of five hundred dollars, lawful money, that the said C. D. will not go, or attempt to go, into parts without the said state, without leave of our said court ; and in case the said C. D. shall refuse to give such bail or security, then you are to commit him, the said 0. D. to our prison, 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 our CEOEEE PEO CONFESSO. ' 185 Chancellor, in our Court of Chancery at Trenton, distinctly and plainly under your seal, together with this writ. "Witness A. 0. Z. Chancellor of the state of New Jersey, at Trenton aforesaid, the day of , in the year, &c. H. s. L. cm. G. H. Sol. Endorsed, with the title of the cause, and " the defendant is to give bond in the sum of five hundred dollars," or such other sum as is named in the writ. The bond must be given with good surety or sureties, being freeholders in the state. 1I...F0EM OF DECREE PBO CONEESSO AND EEEEKENOE TO MAS- TER, TO ASCERTAIN AND SETTLE RIGHTS AND PRIORITIES IN A MORTGAGE CASE. Between A. B. Complainant, and C. D. Defendant. In Chancery of New Jersey. On Mil, &c. Interlocutory decree. This cause, being opened to the court by J. S. of counsel with the complainant, and it appearing that process of subpoena, for the appearance of John Smith, John Den, Richard Fen, John Doe and Richard Roe hath been duly issued and returned served, by the sheriffs to whom the same were directed and delivered, and that the said defendants have neglected to file any plea, answer or demurrer to the complainant's bill of complaint within the time limited by law — It is thereupon, on this day of , in the year, &c. ordered, adjudged and decreed, that the said bill of complaint be taken . as confessed as against all the defendants therein, and that it be referred to A. D. esquire, one of the masters of this court, to ascertain and report the amount due to the said complainant, for principal and interest upon the piortgage held by him upon the premises mentioned and described in the said bill of complaint, and also the amount due, 13 186 SPECIAL DEOEEB. if any thing, to the said John Den, Eichard Fen, John Doe and Richard Roe, upon their respective mortgages, and to report accord- ingly ; and also to ascertain and report the order and priority of the said several mortgages, respectively, and whether they all embrace the same, or what part of the said mortgaged premises, and whether the whole, or a part, and what part, of the said mortgaged premises should be sold for the payment and satisfaction of the said several claims, and, if all the said premises ought to be sold, whether they should be sold together or in parcels, and if in parcels, iii what order, and that the said master do make his report thereon with all con- venient speed. And all further equity is reserved until the coming in of the said report. A. 0. Z. C. It often happens that there are defendants holding prior or subsequent mort- gages on different parts of the premises embraced in the complainant's mortgage, rendering it necessary to sell the premises in parcels, in order to adjust the rights of priority. The above form of an order of reference wiU generally meet such eases. The following form of decree, will show the mode of settling the order of sale: LII...POEM OP SPECIAL DECBEE IN A MORTGAGE CASE IN FAVOR OP COMPLAINANT AND SETERAL DEPENDANTS "WHO ABE MORTGAGEES, DIBECTING SALE AND PAYMENT AC- COBDING TO PRIORITIES. The bill filed in this cause having been ordered to be taken as confessed against all the defendants above named, on the twenty- second day of January last, and the cause now coming on to be heard in presence of A. B. of counsel with the complainant, and it appearing that A. D. esquire, one of the masters of this court, hath made his report, bearing date the day of instant, in pursu- ance of the decretal order of this court, dated the day of last, by which report it appears that there was due, on the day of the date thereof, unto John Den, upon the bond held by him, pay- SPECIAL DECEEI;. 187 ment whereof was intended to be secured by the mortgage made to him, the sum of four hundred dollars, and that the said mortgage debt is first in order and prioritj'' upon the lot of land and premises first mentioned and described in the complainant's mortgage, and is entitled to be first paid and satisfied out of the premises therein mentioned ; and that there was due to Richard Fen, upon the bond held by him, payment whereof was intended to be secured by the mortgage made to him, the sum of six hundred dollars, and that the said mortgage debt is first in order and priority upon the lot of land thirdly described in the complainant's said mortgage, and is entitled to be first paid and satisfied out of the premises contained in the same ; and that there was due to John Doe, upon the bond held by him, payment whereof was intended to be secured by the mortgage made to him, the sum of one thousand dollars, and that the said mortgage debt is first in order and priority upon the lots secondly, fourthly and fifthly described in the complainant's said mortgage, and is entitled to be first paid and satisfied out of the premises contained in the same ; and that there was due to Richard Roe, upon the bond held by him, payment whereof was intended to be secured by the mortgage held by him, the sum of one thousand dollars, and that the said mortgage is second in order and priority upon the lot of land and premises first mentioned and described in the complainant's mortgage, and is entitled to be paid and satisfied next after the mort- gage of the said John Den, out of the premises contained in the same, and prior to the complainant's mortgage ; and also, that there was due to the complainant, upon the bond held by him, payment whereof was intended to be secured by the mortgage made to him, the sum of two thousand dollars, and that the said mortgage debt is second in order and priority upon the tracts of land and premises, secondly, thirdly, fourthly and fifthly described in the complainant's mortgage, and third in order and priority upon the residue of the said premises ; and no cause being shown or appearing against confirming the said report, it is, on this ■ day of , in the year of our Lord one thousand eight hundred and ■, by A. O. Z. Chancellor of the state of New Jersey, ordered, adjudged and decreed, that the said master's report, and all the matters and things therein contained, 188 SPECIAL DECEEE. do Stand ratified and confirmed, and that the said complainant is entitled to relief and to a sale of so much of the said mortgaged premises as shall be necessary to satisf)'' the said John Den, Richard Fen, John Doe and Richard Roe, and the complainant, the amounts so as aforesaid reported due to them, respectively, with the complainant's costs ; and it is accordingly further ordered-, adjudged and decreed, that so much of said estate and premises in the said mortgages of the complainant and the said last named defendants mentioned, as will ■be suflScient to raise and satisfy the said sums so as aforesaid re- ported to be due to them, respectively, with the complainant's costs, to be taxed, be sold, and that a writ of fieri facias do issue for that purpose out of this court, directed to the sheriff of the county of , commanding him to make sale, according to law, of the said mortgaged premises, and that he make sale, in the first place, of the tract of land first mentioned and set forth in complainant's bill, and that out of the moneys arising from such sale, he, in the first place, pay to John Den, or his solicitor, the sum of four hundred dollars, with interest, to be computed from the date of the said report until the same be paid ; and that he do then pay out of the proceeds arising from the sale of the first tract, (in case there be more than sufiScient to answer such payment) in the second place, to Richard Roe, or his solicitor, the sum of one thousand dollars, with interest, to be computed from the date of the said report until the same be paid ; and that in case there be Eny surplus after paying the two amounts, as aforesaid he do pay if sufiicient, and if not, then he do pay, so far as the same will extend, to the said complainant, or his solicitor, the said sum of- two thousand dollars, with lawful interest thereon, to be computed from the date of the said master's report, together with his costs in this suit, to be taxed ; and that, in the second place, he make sale of the tract of land thirdly mentioned and set forth in the complainant's bill, and that out of the moneys arising from such sale he, in the first place, pay to the said Richard Fen the sum of six hundred dollars, with the lawful interest thereon, to be computed from the date of the said master's report ; and in case more money should be raised by such sale than shall be sufficient to answer such payment, and the balance arising from the sale of the SPECIAL DECEEE. 189 first tract, after payment of the two first mortgages, should be in- sufficient to satisfy the complainant's debt, interest and costs, then and in that case he pay out of the surplus arising from the sale of the third tract, so far as the same will extend towards paying off the balance remaining due to the comp^inant from the sale of the first tract ; and that, in the third place, he make sale of the tracts of land secondly, fourthly and fifthly mentioned and set forth in the com- plainant's bill, and that out of the moneys arising from such sale, he, in the first place, pay to John Doe, or his solicitor, the sum of one thousand dollars, with the lawful interest thereon, to be computed from the date of the said master's report ; and in case more money should be raised by such sale than shall be sufiScient to answer such pay- ment, and the balances arising from the sales of the first and third tracts, after payment of the respective mortgages above mentioned, should be insufficient to satisfy the complainant's said debt, interest and costs, then a,nd in that case he apply the surplus arising from the sale of the three last mentioned tracts, so far as the same will extend towards paying off the balance remaining due the complainant for his said debt, interest and costs ; and in case there be any further surplus, that the same, be brought into this court, and deposited with the cleric, to abide the further order of this court, unless otherwise disposed of by the order of the court; and that the said sheriff make return to this court of his proceedings by virtue of the said writ. And it is further ordered, adjudged and decreed, that the defendant stand absolutely debarred and foreclosed of and from all equity of redemp- tion of, in, and to so much of the said mortgaged premises as shall be sold as aforesaid by virtue of this decree. A. 0. Z. 0. In case the mortgagor has sold different parcels of the premises, since the mortgage to parties defendants in the cause, the order of sale wiU he as fol- lows: 1. The premises still retained by the mortgagor. 2. The portion last sold. 3. The portion sold next before the last. And so on, untE all the parcels are disposed of, or as much as may be neces- sary to make the money. 190 DEOBEE OF DISMISSAL The complainant sometimes finds Mmself embarrassed by the fact, that a de- fendant holds a mortgage prior to his upon the premises embraced in his mortgage, but which covers other propertg not embraced in the complainant's mortgage. And if the defendant is permitted to hare his whole debt satisfied out of the premises in the complainant's mortgage, it may exhaust the security and leave the complainant nothing. The only remedy to avoid this difficulty is, to set the facts of the case all out in the bill, inake all persons parties who are interested in the lands embraced in the defendant's mortgage as well as those interested in the lands embraced in oomplaina.nt's, and pray, that, under these special circumstances, the whole premises may be sold, to wit : first, that those in defendant's mortgage, not embraced in complainants, may be sold, and the proceeds applied to satisfy his prior hen, as far as they .wiU extend ; and second, that those embraced in the complaina/nfs m/>rtgage be sold, and the proceeds applied, first, to pay any balance which may stiU remain due the defendant, and, second, to pay complainant. LIII. FOEM OF DECREE OF DISMISSAL ON COM-PLAINANT'S MOTION. It being suggested to the court, liy G. H. of counsel witli the complainant, that the matters in controversy in the ahove cause have been settled by the parties, and on motion as aforesaid — It is ordered, that the complaint's bill be, and the same is hereby dismissed. Dated, &c. If the suit is to be dismissed without costs, the solicitor of the complainant should produce the written consent of the defendant, or his solicitor, to that effect, and then those words wiU be added to the order. The proceedings, when suit is dismissed by consent or agreement, are not enrolled, of course. But either party may, at his own expense, have them enrolled. LIV. FORM OF DECREE, OF DISMISSAL ON ARGUMENT. This cause, coming on to be heard at the last regular term of the Court of Chancery, held at the state house in tue city of Trenton, before the Chancellor, in the presence gf G, H, of counsel with the DEOEEE FOR SPECIFIC PEEFOEMANCE. 191 complainant, and J. K. of counsel with the defendant, and the pleadings, depositions, exhibits and proofs, being read, and the argu- ments of the respective counsel being heard and considered, and the Chancellor having taken time to advise thereon, and now, on this day of , in the year, &c. it appearing to the Chancellor that the complainant is not entitled to the relief sought and prayed for by him in hjs said bill of complaint — It is ordered, adjudged and decreed, that the complainant's said bill be and the same is hereby dismissed, with costs. Dated, &c. It ia not usual to order exeoutioa for costs upon making the deci-ee. The solicitor of the party entitled to them should draw his bill, have it taxed, and serve a copy on the other party, or his soUcitor, and if not paid, make an affi- davit of the service and non-payment, and apply for an order for execution. The Chancellor may, however, order execution in the first instance. LV. FORM OF DBOKEE FOR SPECIFIC PERFORMANCE AGAINST ADMINISTRATORS AND HEIRS AT LAW. This cause, coming on to be heard at a regular term of the Court of Chancery of New Jersey, held at Trenton, on the day of , in the year of our Lord one thousand eight hundred and , in the presence of G. H. solicitor for and of counsel with the com- plainant, and of J. K. solicitor for and of counsel with the defendants John Doe and Richard Roe, administrators, &c. of John Smith de- ceased, the complainant's bill having been heretofore ordered to be taken as confessed against Edward Smith and Josiah Smith, the other defendants, who are the heirs at law of the said John Smith, de- ceased; and the bill of complaint, ,and the answer of the said administrators to the same, having been read, and the argument of counsel on both sides having been heard and considered ; and it satisfactorily appearing to the court, by the pleadings in the cause, that, by virtue of an agreement in writing, duly made and executed, between the said Richard Fen, the complainant, and the said John Smith, now deceased, in his lifetime, to wit, on the day of , 1 92 DECREE FOE SPECIFIC PEEFOEMANOE. in the year of our Lord one thousand eight hundred and , the said John Smith agreed to purchase of the said complainant a certain farm and tract of land, in the said bill mentioned and described as follows, to wit, {insert description of premises hy metes and hounds) zui, to pay him therefor the sum of one thousand dollars, in two equal payments, one payment of five hundred dollars to be made on the — day of , in the year of our Lord one thousand eight hundred and , when the said Richard Fen was to execute and deliver to him, his heirs and assigns, a good and sufficient deed for the said premises, and also possession of the said premises, and the remaining sum of five hundred dollars, to be paid on the day of , one thousand eight hundred and ; and it further appearing that the said John Smith departed this life on the day of , eighteen hundred and , intestate, and that the said defendants are his administrators and heirs at law, and that the said Richard Fen, the complainant, has always been, and still is, ready and willing, in all things, to comply with the conditions of the said articles of agree- ment on his part, and has prayed the order or decree of this court directing the defendants to comply with and fulfil the same, in all things, on their part, in the place and stead of the said John Smith ; and the Chancellor being of opinion that the complainant is entitled to the specific performance of the said article of agreement on the part of the said administrators and heirs at law of the said John Smith, deceased, as in his said bill he has prayed — It is, on this day of , in the year of our Lord one thousand eight hundred and , by A. 0. Z. Chancellor of the state of New Jersey, ordered, adjudged and decreed, and the said Chancellor, by virtue of the power and authority of this court, doth order, adjudge and decree, that the said articles of agreement be in all things specifically performed by the said Richard Fen and the said administrators and heirs at law of John Smith, deceased, re- spectively, and that the said Richard Fen do, within thirty days from the date of this decree, make, execute and acknowledge, in due form of law, and deliver to the heirs at law of the said John Smith, de- ceased, a good and sufficient warrantee deed for the said premises, and that he deliver, at the same time, to the said heirs at law DECEEE FOE SPECIFIC PEEFOEMAJirCE. 193 possession of the said premises, and account to them for the rents, issues and profits of the same since the first day of last, and that thereupon the said administrators and heirs at law, defendants in this cause, do pay, or cause to be paid, out of the estate of the said John Smith, deceased, the said sum of five hundred dollars, (with interest thereon from the day of last past,) and that the. other moiety of the said sum of one thousand dollars, to wit, the sum of five hundred dollars, be and remain a specific lien upon the said premises, payable on the day of next ensuing, and until the same shall be paid and satisfied. And it is further ordered, that the costs of the complainant and of the said ad- ministrators, defendants in this suit, be paid out of the estate of the said John Smith ; and the complainant is to serve a copy of this decree upon the defendants, or their solicitor, within ten days from the date hereof, and either party is to be at liberty to apply to this court for further directions or relief in the premises, if occasion shall require. A. 0. Z. C LVI...FORM OP DECREE EOE SPECIFIC PERFORMANCE, WHERE REFERENCE TO A MASTER IS WAIVED. It appearing to the court that the defendants have waived all reference to the master upon the several matters referred to him by the interlocutory decree in this cause, and relinquished all right which they might have to such reference under such decree — It is therefore, on this tenth day of April, in the year of our Lord one thou- sand eight hundred and seventy-one, ordered, adjudged and decreed, that the said reference to the master be considpred as waived ac- cordingly. And it is also, on the same day and year last aforesaid, by His Honor A. 0. Z. Chancellor of the State of New Jersey, ordered, adjudged and decreed that the said complainant A. B. is entitled to the specific performance of the agreement for the purchase of the said premises in the bill of the said complainant mentioned, and that the said defendants do specifically perform the said agree- 194 DECREE ESTABLISHING A WILL. ment with the said complainant, and that neither party pay costs to the other. The above is a form where a reference to a master was necessary in the first instance and was made, and the defendants afterwards waived it. LVII...FORM OF DECREE ESTABLISHING A "WILL. This cause coming on to be heard in the presence of G. H. of counsel with the complainants, and J. K. of counsel with the defend ants, and the hill, answer, replication, proofs and exhibits being read, and the arguments of the respective counsel having been heard, the Chancellor took time to consider the same ; and it appearing, to the satisfaction of the Chancellor, that John Doe, deceased, in the plead- ings in the cause mentioned, on or about the day of , in the year, &c. duly made and executed his last wUl and testament in writing, in due form of law to pass real and personal estate, and afterwards departed this hfe, leaving the said last will and testament unrevoked and in full force ; that the said last will and testament was afterwards taken away or destroyed by some person or persons unknown ; and that the contents of the said last wiU and testament have been fully and satisfactorily proved by the evidence in the said cause ; and that the said will ought to be established in aU its parts, by the order and decree of this court. And it further appearing, to the satisfaction of the court, that in and by the said last will and testament, so made and executed as aforesaid, the ssiid testator John Doe devised and bequeathed as follows, to wit : to his sou, (here insert the devises and iequests, as proved,) and that the said testator, in and by his said last will and testament aforesaid, appointed A. B. and C. D. executors thereof; and no cause being shown or appear- ing why the said last will and testament should not be in all things fully established — It is now, on this day of , in the year, &c. by A. 0. Z. Chancellor of the state of New Jersey, ordered, adjudged and 'decreed, and the said Chancellor, by virtue of the power and authority of this court, doth hereby order, adjudge and decree, that the said last will and testament, so made and executed DECEEE ANNULLING A DEED. 195 as aforesaid by the said John Doe, and all the devises, bequests and appointments therein contained, as herein above particularly set forth, be, and the same is hereby established in all things and in all its parts ; and that the said several devisees and legatees aforesaid take, hold, occupy, possess and enjoy their several and respective devises and legacies, as fully and effectually, to all intents and purposes whatsoever, as they might, could or would have taken, held, occupied, possessed and enjoyed the same, if the said last will and testament had not been taken or destroyed, and had been duly proved according to law. And it is further ordered, that the costs of the complainants and defendants in this cause be, and the same is hereby ordered to be paid by the said executors out of the testator's estate. LVIII...FORM OF DECREE ANNULLING A DEED, &c. This cause coming on to be heard and debated in the presence of of J. S. of counsel with the complainant, and of E. F. and G. H. of counsel with the defendant, in the term of AprU, in the year of our Lord one thousand eight hundred and , before His Honor, the Chancellor, whereupon and upon reading the pleadings and proofs in this cause, and the Chancellor having taken time to advise thereon until this day, and now due examination of the said pleadings and proofs being given, and due deliberation being thereupon had — It is declared, that the said deed, in the pleadings and proofs mentioned^ purporting to be tnade by the said A. 0. to the said defendant C. D. is fraudulent and void. It is therefore, on this fifteenth day of July, in the year of our Lord one thousand eight hundred and , by His Honor, A. 0. Z. Chancellor of the state of New Jersey, ordered, adjudged and decreed, and the said Chancellor, by virtue of the power and authority of this court, doth order, adjudge and decree, that the said deed, so as aforesaid made by the said A. C. to the said C. D. bearing date the first day of April, in the year of our Lord one thousand eight hundred and , for the premises in the said pleadings and proofs mentioned, is and was, from the time of the execution and delivery of the same, null and void and of no force 196 ALIAS TESTATUM, or effect whatsoever in law or equity, and that the said C. D. do, on service of a copy of this decree, deliver up the said deed to the complainant, to be cancelled, and that he do also deliver up to the said complainant the possession of the said premises now held by him, together with all deeds, muniments of title and writings in his custody or power relating to the said premises, and that the said defendant C. D. do also reconvey the said premises to the said complainant, free and clear of and from all incumbrances done by him, or any claiming by, from or under him. And it is further ordered, adjudged and decreed, that the said defendant C. D. do pay unto the said complainant her costs in this case, to be taxed. And it appearing to the court that the said defendant C. F. hath fairly and bona fide paid the whole of the consideration money expressed in the deed made by the said C. D. to the said C. F. bearing date the twentj-- third day of January, in the year of our Lord one thousand eight hundred and , for a part of the said premises in the said plead- ings and proofs mentioned, without notice of the said fraud, and that the said consideration money went to the use of the creditors of the said A. C. and that the conduct of the said 0. F. in respect thereof, was fair and bona fide — It is further ordered, adjudged and decreed, by and with the consent of the said complainant, that the said com- plainant do release unto the said C. F. his heirs and assigns, all right and title of, in, and to the said premises mentioned and de- scribed in the said deed from the said 0. D. to the said C. F. And it is further ordered, adjudged and decreed, that the complainant may be at liberty to apply to this court for execution and further directions, as she may be advised. LXIX.,.FORM OF ALIAS TESTATUM ¥1. FA. DE BON. ET. TEE. New Jersey, ss. — The state of New Jersey to our sheriff oj our county of Salem, Greeting : JL.S} "Wheeeas in and by a certain decree, made in our Court * of Chancer}'', before our Chancellor, at Trenton, on the day of , in the year of our Lord one thousand eight hundred ALIAS TESTATTJM. 197 and , in a certain cause therein depending, wherein A. B. and C. D. are complainants, and B. F. and G. H. executors of the last wUl and testament of J. K. deceased, are defendants — It was ordered, adjudged and decreed, that the complainants are entitled to receive, severally, the sum of two hundred and forty -two dollars, together with lawful interest from the - — — day of , in the year of our Lord one thousand eight hundred and , and until the same be paid and satisfied, and that they are entitled to receive of the said defend- ants their costs of this suit, to be taxed ; and by the said decree it was further ordered, adjudged and decreed, that the said defendants should, within thirty days after service upon them of a copy of the said decree and of the taxed biU of costs, pay to the said complain ants, or to their solicitor, the sum of four hundred and eighty-four dollars, (being the aggregate amount of the sums due the complain- ants,) together with interest and costs as aforesaid, and that in default thereof the complainants should have execution for the same. And whereas the costs of the said complainants in this suit have been duly taxed at one hundred and twenty-eight dollars, and we, being satisfied that the said defendants have not complied' with the terms of the said decree, by our writ heretofore issued, commanded the sheriff of the county of Burlington to make the said sum of money, with interest and costs as aforesaid, of the goods and chattels, lands and tenements, of the said defendants in his bailiwick ; and, by the return of the said sheriff to our said writ, it was testified to us, that the said defendants had no goods or chattels, lands or tenements, in his bailiwick; and whereas, also, we directed our certain writ of testatum to the sheriff of our county of Gloucester, commanding hitn that of the goods and chattels of the said defendants in his bailiwick, he should cause to be made the said sum of four hundred and eighty- four dollars, together with the interest thereon as aforesaid, and also the said sum of one hundred and twenty-eight dollars, of costs, and if sufficient goods and chattels of the said defendants he could not find whereof he could make the same, then we further commanded him, that of the lands, tenements, hereditaments and real estate whereof the said defendants were seized on the day of , the date of the said decree, or at any time afterwards, in whose 198 ALIAS TESTATtTM. hands soever the same might be, he should cause to he made the whole or the residue, as the case might require, of the said sum of four hundred and eighty -four dollars, together with the interest and costs aforesaid, and that he should have those moneys before our Chan- cellor, in our Court of Chancery at Trenton, on a certain day now past, to render to the said complainants, and that he should have then there that writ ; and whereas our said sheriff of our county of Gloucester on that day returned to our Chancellor, in our Court of Chancery, that, by virtue of the said writ to him directed, he had levied on the goods and chattels, lands and tenements, of the defend- ants, an inventory whereof was therewith returned, subject to all prior executions and incumbrances, value one dollar, which remained unsold, as in and by the said writ of testatum and execution, now remaining afSled and recorded in our said Court of Chancery, will more fuUy appear ; and whereas it is suflSciently certified to our said Chancellor, in our said Court of Chancery, that the said defendants have sufficient goods and chattels, lands and tenements, in your county whereof to make the residue of the debt, interest and costs aforesaid — Therefore, we hereby command you, that of the goods and chattels of the said defendants in your county, you cause to be made the residue of the said debt, interest and costs ; and if sufficient goods and chattels of the said defendants in your county you cannot find, then we further command you, that of the lands, tenements, here- ditaments and real estate, whereof the said defendants were seized on the said day of , or at any time afterwards, in whose hands soever the same may be, you do cause to be made the whole or the residue, as the case may require, of the said sum of four hundred and eighty-four dollars, together with the interest and costs as afore- said, and that you have those moneys before our Chancellor, in our said Court of Chancery at Trenton, on the day of next, to render to the said complainants for the residue aforesaid : and have you then there this writ. "Witness, His Honor A. 0. Z. our Chancellor, at Trenton, this day of , in the year, &c. H. S. L. Clk. G. H. Sol. » * JL.S.| EXEOUTIOW POK COSTS. 199 LX...PORM OF EXECUTION AGAINST GOODS AND LANDS FOR COSTS. New Jersey, ss. — The state of New Jersey to the sheriff of the the county of Burlington, greeting : Whereas, by a certain final decree of our Chancellor, in our Court of Chancery at Trenton, in a certain cause therein depending, wherein A. B. was complainant, and C. D. and E. F. defendants — It was decreed, that the complainant's bill of complaint in that cause should stand dismissed out of our said court for want of prosecution, with costs to be paid by the com- plainant to the said defendants ; and whereas the clerk of our said Court of Chancery has duly taxed the said defendant's costs,, in and about their defence in the said cause, at forty-seven dollars and sixty-five centsf Therefore we command you, that, without delay, you do cause to be made of the goods and chattels of the said A. B. in your bailiwick, the said sum of forty-seven doUars and sixty-five cents, for the defendant's costs aforesaid ; and if sufScient goods and chattels of the said A. B. in your bailiwick, you cannot find, whereof to make the said sum of money, then and in that case we command you, that of the lands, tenements, hereditaments and real estate of the said A. B. in your bailiwick, whereof he was seized on the fifteenth, day of October, in the year of our Lord one thousand eight hundred and , the day of the date of the decree aforesaid, or at any time afterwards, in whosesoever hands the same may be, you do cause to be made the whole or the residue, as the case may require, of the aforesaid sum of forty-seven dollars and sixty-five cents, and that you pay the said sum of money, so by you to be levied and made, to the said defendants, or to their solicitor in the said cause : and have you this writ, with your proceedings thereon, before our Chancellor, in our Court of Chancery at Trenton, on the second Tuesday of July next. Witness, A. 0. Z. our Chancellor, at Trenton aforesaid, the twenty-second day of June, in the year of our Lord one thousand eight hundred and seventy-two. H. S. L. Clk G. H. Sol. 200 WEIT 01- BEQUESTEATIOH^. LZI...FORM OF CA. SA. As in the preceding to f, tlien — " Therefore we command you, that yoii take the said A. B. if in your county he may be found, and him safely keep, so that you have his body before our Chancellor, in our Court of Chancery at Trenton, on the — day of next, to satisfy unto the said C. D. and E. F. the sum of , (of debt, with interest aforesaid, and also the said sum of ) of costs aforesaid, according to the decree afore- said : and have then there this writ. "Witness, &c. Omit the words in (parenthesis), if Only costs are to be raised. The ca. sa. is now seldom used in Chancery, though in former years it was frequently issued. LXII...FORM OF WRIT OF SEQUESTRATION. New Jersey, to wit. — TJie state of New Jersey to the sheriff of the county of , greeting : "Whereas, on the day of , in the year of ( ) our Lord one thousand eight hundred and , by a ( ' ' ) certain order, made in our Court of Chancery before our Chancellor at Trenton, in a certam cause therem depend- ing, wherein A. B. by her next friend E. F. is complainant, and C. D. is defendant — It was ordered and adjudged that process do issue from and out of this court, directed to the sheriff of the county of , for the immediate sequestration of the personal estate of the said C. B. and the rents and profits of his real estate, and that the said sheriff keep the same under sequestration in his hands until the said defendant C. B. shall have fully paid the sum of two hundred and fifty dollars to the said complainant for her alimony due to her on the day of last past, by virtue of the decree of our said court, together with lawful interest thereon from the day of last aforesaid-— Therefore you are hereby commanded, that NOTICE OF APPEAL. 201 you do forthwith enter upon all the messuages, lands, tenements and real estate whatsoever, of the said C. B. in your county, and that you take, collect, recover and sequester into your hands, not only all the rents and profits of the said messuages, lands, tenements and real estate, but also all his goods, chattels and personal estate whatsoever, and that you detain and keep the same under sequestration in your hands, until the said C. B. shall have fully paid the said sum of two hundred and fifty dollars, with interest to be computed from the day of last, and until the further order of this court : and you are to make return of our proceedings by virtue of this writ to our Court of Chancery, on the Tuesday of next, together with this writ. Witness, His Honor, A. 0. Z. our Chancellor, at Trenton, this • day of , in tlie year of our Lord one thousand eight hundred and . H. S. L. Glh. G H. 8ol. &c. .LXIII...FORM OP NOTICE OF APPEAL, FILED IN OHANCERT. In Chancery of New Jersey. Between ^ A. B. Complainant, and C. D. and E. F. Defendants. On hill, &c. Appeal. The complainant hereby appeals from so much of the final decree made in this court, in the above stated cause, as declares the mort- gage of the said defendant E. F. in the pleadings in the cause men- tioned, to be an existing incumbrance upon the mortgaged premises prior to the complainant's mortgage, to the Court of Appeals in the last resort in all causes of law. G. H. Sol. of complainant. J. K. of Counsel. Dated, &c. I conceive there is good cause for appeal in the above stated cause. J. K. of Counsel with complainant. 202 PETITION OF APPEAL. The party appealing must deposit $100 with the clerk in chancery, to answer the costs of the appeal. And, within thirty days, serve a copy of the appeal upon the solicitor of the adveme party, if he has one, if not, on the party, if in the state. See Rules in Chancery, title " Appeal" and Rules in Court of Appeals, Nos. 14 and 15. LXIT...POEM OP PETITION OP APPEAL, PILED IN COURT OF APPEALS. . CouBT OF Appeals in the last eesoet, &c. Between A. B. Appellant. On hill &c. and [ Petition of appeal. C. D. & E. F. Appellees. j To the Honorable the Court of Appeals in the last resort -in all causes of law : The humble petition of A. B; the appellant in the above stated cause, respectfully shows, that youi- petitioner finds himself aggrieved by a final decree, made in the Court of Chancery by His Honor A. 0. Z. Chancellor of New Jersey, bearing date the day of , in the year, &c. wherein the said A. B. was com- plainant, and the said C. D. and E. F. were defendants, in this respect, to wit : that the said decree adjirages that the mortgage of E. P. one of the said defendants, was and is an existing incumbrance upon the mortgaged premises in the pleadings in the cause mentioned, prior to the complainant's mortgage. And your petitioner humbly appeals from that part of the said decree of the Chancellor which decrees as aforesaid, upon the ground that the same is erroneous, for that the said defendant E. F's. mortgage is not an incumbrance on the said premises, prior to your petitioner's mortgage. Your petitioner therefore prays, that the said decree of the said Chancellor may be, in the particulars aforesaid, reversed, set aside, and for nothing holden. And that your petitioner may have such relief in the premises as to this honorable court shall seem meet. G. H. Sol. of appellant. J. K. of Counsel with appellant. Dated, &c. NOTES OF PKACTIOE. 203 PRECEDENTS Notes of Practice PART IV. CONTENTS. I. Proceedings in case of injunctions. II. Prooeedingf on application for receivers III. Proceedings on application for guardians, IV. Proceedings to obtain surplus money. V. Proceedings in scire facias. VI. Proceedings in feigned issues. VII. Proceedings in lunacy, &c. VIII. Proceedings in divorce. IX. Proceedings in partition. S. Proceedings for sale of dowor and curtesy. XI. Proceedings against corporations. ' XII. General schedule of costs. 204 INJUNCTION. I. INJUNCTIONS. See Rules of Coubt or Chancery, title " Injunctions^ The court is always open for the purpose of hearing application for injunc- tions, and motions for the dissolution of injunctions. An injunction biU pursues the ordinary form, in all things, with the addition of a paragraph setting out the specific mischief sought to be restrained, and prefixing to the prayer for subpoena a prayer for injunction, in form following : I. ..FORM OF PRATER FOR INJUNCTION. May it please your Honor, the premises considered, to grant to your orator, not only the state's writ of injunction issuing out of and under the seal of this honorable court, to be directed to the said 0. D. and B. F. restraining them, and each of them, from committing any further waste or destruction upon the mortgaged premises afore said, but also the state's writ of subpcBna, &c. i The prayer for injunction should carefully set out the extent of the relief sought, in the very words which the party desires to have inserted in the in- junction itself, as, if the common order is made that an injunction issue according to the prayer of the bUl, the restraining words in the prayer will be used in the writ ; and in no case wiU the chancellor make the injunction broader than the prayer. Upon bill or petition presented to the chancellor, if it be not of so pecuhar a character as to require, in his opinion, notice, he will endorse an allocatur or non-allocatv/r upon the back, as follows : " Upon filing this bUl, iSkc. let an in- junction issue according to its prayer.'' A. 0. Z. C- — Or, " The injunction prayed for is not allowed." The biU, in either case, should be filed. The common order for injunction should then be prepared, presented for signature, and filed. COMMON OEDEE FOE INJUNCTION. 205 II... FORM OP COMMON ORDER FOR INJUNCTION. In Chanceey of New Jeesby. Between A. B. Complainant, 1 and L Order, &c. C. D. and B. F. Defendants. I Upon reading the bill of complaint in this cause, and the affidavit thereunto annexed, and on motion of J. S. of counsel with the com- plainant — It is ordered, that upon filing the said bill and affidavit, an injunction do issue, according to the prayer of said bill. A. 0. z.,a Dated, &c. At any stage in a cause, if circumstances arise rendering an injunction neces- sary, it may be applied for by petition. III.. .FORM OP PETITION FOR INJUNCTION AFTER BILL FILED. In Chancery of New Jersey. Between A. B. Complainant, | ^^ j .„^ ^^ C. D. and B. F. Defendants. J To Ids Honor A. 0. Z. Ghancellor of the state of New Jersey : The petition of the complainant, humbly showeth, that the said C. D. one of the above named defendants, hath committed, or caused to be committed, great waste, spoil, and destruction upon certain of the lands and premises, in the bill of the said complainant mentioned, called the place, said to contain acres, and mortgaged by the said C. D. to the said A. B. as in said bill is alleged, by cutting down the timber and trees which were standing and growing upon the said premises, or causing the same to be cut down, and a large quantity whereof, cut up into cord wood, now remains upon the said 206 PETITION FOE INJUNCTION. premises. And your petitioner further showeth, that the said C. D. hath advertised for public sale, on the day of next, the wood so cut down, thereby declaring his intention to make sale thereof; and that he intends to commit, or cause to be committed, further waste, spoil, and destruction in and upon the said premises, by cutting down the wood now growing thereon, and causing the same to be carried away, whereby the petitioner's security is greatly diminished, and he is in danger of sustaining loss : your petitioner therefore humbly prays of your Excellency, to grant him the state's writ of injunction, to be directed to the said C. D. and his workmen, laborers, servants and agents, each and every of them, under a certain penalty, therein to be expressed, that they and every one of them, do from henceforth altogether and absolutely desist from felling or cutting down any timber or other trees standing, growing, or being in or upon the premises before mentioned, or any part thereof, and from taking and carrying away, or causing to be taken and carried away, any wood lying and being upon the said premises, or any part thereof, and from committing or doing any further or other waste or spoil in or upon the said premises, or any part thereof, or in and upon any of the lands in question in the said cause. And your petitioners shall ever pray, &c. Dated, &c. J. S. Sol. and of cownsel with the complainant. New Jersey, to \uit. — A. B. the above named petitioner, being duly sworn according to law, doth depose and say, that the matters and things set forth in the above petition are true, and that the said C. D. has to the personal knowledge of this deponent, within days past cut down a number of trees upon the mortgaged premises mentioned, and cut the same up into cord wood, and that he has ad- vertised the same for sale ; and this deponent further says, that he verily believes that the said C. D. intends to go on committing waste and destruction of the timber standing and growing upon the said premises, and that the premises in question are a scanty security for the money due upon this deponent's mortgage, and if the wood is PETITION FOK INJUNCTION. 20Y taken off will not, in deponent's opinion, bring the amount of the same, with interest and costs of suit. A. B. Sworn, &c. The affidavit should always be specially drawn, and present a clear prima facie case for the interference of the court. IV...FORM OF PETITION FOB INJUNCTION AFTEE DECREE. In Chancery of New Jebsey. Between A. B., Complainant, and C. D. & ux. & al. Defendants. Petition for injunction. The petition of A. B. above named, respectfully showeth, that heretofore your petitioner filed his bill of complaint in this honorable court against the above named C. D. and P. his wife, and against E. F. and Gr. H. defendants, for the foreclosure and sale of certain mort- gaged premises, situate in the township of in the county of Essex, in this state, mortgaged by the said C. D. to J. P. which said mortgage was assigned by him to S. N. and by him assigned to your petitioner, which said mortgaged premises are now particularly described in the said bill of complaint ; that process of subpoena to appear and answer the said bill, directed to the said defendants, has been regularly issued, and returned, and such further proceedings had in the said cause, that, on the day of , instant, it was, among other things, ordered, adjudged and decreed, that the whole of the mortgaged premises, with the appurtenances, be sold, to raise and pay the sum of one thousand dollars, due to your petitioner, together with the lawful interest thereon, to be computed from the ■ day of now last past, with your petitioner's costs in that cause to be taxed, and that a writ of fieri facias should issue for that purpose out of this court, directed to the sheriff of the county of Essex, commanding him to make sale according to law of 208 PETITION FOE INJUNCTION. the said mortgaged premises, with the appurtenances, and that out of the money arising from such sale he pay the complainant, or his solicitor, the costs of that suit, to be taxed, and also the amount of your petitioner's said debt, together with the interest which shall accrue thereon ; and that the residue of the money, if any, arising from such sale, after the payment of the said debt, interest and costs, be brought into this court, to abide the further order of this court, unless otherwise previously ordered ; and that the said sheriff make return and report of his proceedings by virtue of the said execution with all convenient speed ; but as to the said bill, parties, object, proceedings and decree in the said cause, now among the files of this court, j^our petitioner, for greater certainty, prays leave to refer; that no execution has as yet issued on the said decree, and your petitioner is advised that none can issue until the expiration of ten days after pronouncing the said decree, without the special order of this court therefor. And your petitioner farther showeth, that the said mortgaged premises, with the appurtenances, decreed to be sold as aforesaid, are a scanty and insuflScient security for the payment of the debt, interest and costs due and ordered to be paid to your petitioner as aforesaid, the said mortgaged premises, with the ap- purtenances, being worth about one thousand dollars before the committing of the waste and destruction hereafter mentioned, being worth several hundred dollars less than the debt, interest and costs due and ordered to be paid to your petitioner as aforesaid. And your petitioner further showeth, that the said C. D. is embarrassed in his pecuniary affairs, and unable to pay the balance that will remain due to your petitioner after the sale of the said mortgaged premises, with the appurtenances, if sold for their fall value. And your petitioner farther showeth, that some time in the present month of January, that is to say, on the day of, &c. the said C. D. did pull down and remove from off the said mortgaged premises a barn, of the value of about one hundred dollars, and has also removed a part of the fencing stulf from off the said premises, and has threatened to remove the kitchen attached to the dwelling house standing and being on the said mortgaged premises. And your petitioner verily believes that the said C. D. will commit other waste, spoil, and StEClAt OEDEE tOE tNJUiSrCTiON. ^0^ destruction in and upon the said mortgaged premises, unless restrained from so doing by this honorable court; your petitioner therefore prays that a writ of injunction may issue out of and under the seal of this court, to be directed to the said 0. D. his workmen, laborers, servants and agents, and each and every of them, strictly enjoining and commanding them, and all and every of them, under the penalty of one thousand dollars, to be levied upon their and each of their lands, goods and chattels, to the use of this state, that they and each of them, do henceforth altogether desist and refrain from removing off the said mortgaged premises, or destroying, or in any way injuring, any building or fences, apple or fruit trees, on any part of them, or either of them, or from committing or doing any other or further waste, spoil or destruction in or upon the said mortgaged premises, or any part thereof, until this court shall make other order to the contrary. And your petitioner shall ever pray, &c. J. S. Solicitor and of counsel with, the petitioner. New Jersey, ss. — A. B. the petitioner in the foregoing petition named, being duly sworn, on his oath saith, that the facts, matters and things therein set forth, so far as they relate to his own acts and deeds, are true, and so far as they relate to the acts and deeds of any other person or persons, he believes them to be true ; and that, &c. (setting out in short the mischief complained of) A. B. Sworn and subscribed, &c. Y...FORM OF SPECIAL ORDER FOR INJUNCTION. Upon motion made this day to this court, on behalf of Mr. J. S. of counsel with the complainant, and upon reading the petition of the said complainant, and his affidavit thereto annexed, in and by which said petition it appears, among other things, that a decree has been made in the above cause for the sale of certain mortgaged premises, situate in the township of , in the county of Essex, in this state, mortgaged by the above named C. D. to J. P. which 210 PETITION FOE INJUNOTION. said mortgage was assigned ty the said J. P. to S. N. and by him assigned to said A. B. which mortgaged premises are more particu- larly described and set forth in the complainant's bill of complaint, filed in the above cause ; and that certain waste has been done, and is threatened to be done, in and upon the said mortgaged premises ; and, upon examining the bill, proceedings and decree in the said petition mentioned and referred to — It is, on this day of Janu- ary, in the year, &c. by His Honor A. 0. Z. Chancellor of the state of New Jersey, ordered, that the said petition and affidavit be filed, and that an injunction do forthwith issue out of, and under the seal of this Court, directed to the said C. D. and his workmen, laborers, servants and agents, therein and thereby commanding them, and all and every of them, under the penalty of one thousand dollars, that they and each of them do from henceforth, altogether and absolutely desist and refrain from removing off the said mortgaged premises, or destroying thereon any building, fences, or apple or fruit trees, or any part of them or either of them, or from committing or doing any other or further waste, spoil or destruction, in or upon the said mort- gaged premises, or any part thereof, until this court shall make other order to the contrary. A. 0. Z. C. In the absence of the chancellor, the solicitor of the complainant may submit his hiU for injunction to the vice chancellor, or, to an injunction master. But in that case he should accompany it with a petition in the following form : VI...FORM OF PETITION FOE INJUNCTION -WHERE BILL IS PRESENTED TO A MASTER. To his His Honor A. 0. Z. Chancellor of the state of New Jersey. The petition of A. B. respectfully showeth, that your petitioner has filed in this court his bill of complaint against C. D. and E. F. praying relief touching the matters therein set forth, and he is advised that the issuing of a writ of injunction is necessary to his effectual mabtee's eepoet. 211 relief. He therefore respectfully prays, that your Honor will grant him an injunction, agreeably to the prayer of his said bill. Dated, &c. J. S. Sol. and of coimsel with complainant. And the master, or vice chancellor will make his report at the foot of this petition. VIT...FORM OP MASTER'S REPORT FOR INJUNCTION. To His Honor A. 0. Z. Chancellor of the state of New Jersey. The subscriber, one of the masters of the Court of Chancery, designated by His Honor the Chancellor to report on the propriety of issuing writs of injunction in the absence of the Chancellor from the city of Trenton, respectfully reports, that, having perused the bill mentioned in the foregoing petition, and the afiSdavit thereto sub- joined, he is of opinion that f an injunction should issue agreeably to the prayer of the bill. All which is respectfully submitted. J. E. Master. Dated, &c. Or, if not allowed, after f say, " the injunction prayed for ought not to be granted." VIII.-..FORM 01" RULE FOR INJUNCTION WHERE THE MASTER REPORTS AN ALLOWANCE. In Chancery of New Jersey. Between A. B. Complainant, and C. D. and al. Defendants. ■ J. E. esquire, one of the masters of this court, designated by the Chancellor to decide upon the propriety of granting injunctions in April 8, 1872. 212 INJUNCTION TO STAT WASTfi. the absence of the Chancellor from the city of Trenton, having reported that he is of opinion that an injunction ought to issue agreea- bly to the prayer of the petition in this cause — It is ordered, on motion of J. S. solicitor of the complainant, that an injunction do issue accordingly. By the court. H. S. L. Clh. IX...PORM OF INJUNCTION TO STAY WASTE. New Jersey, to wit. — The state of New Jersey to A. B. and J. his wife, 0. D. and E. F. their workmen, laborers, servants ( ) and agents, and each and every of them, greeting : ( ' ' j Whereas it hath been represented to us, in our Court of Chancery, on the part of Q. H. complainant, that he has lately exhibited his bill of complaint against you, the said A. B. and wife, C. D. and E. F. defendants, to be relieved touching the matters therein contained, in which said bill it is, among other mat- ters, set forth, that you, the said defendants, are combining and con- federating to injure the complainant touching the matters set forth in the said bill, and more particularly, that you, the said A. B. do threaten and intend to cut down timber and other trees, and to com- mit other waste and injury on certain mortgaged premises mentioned in the complainant's bill, and situate in the township of , in the county of Hunterdon, containing sixteen acres, more or less, and that the actings and doings of you, the said defendants, touching the matters in the said bill mentioned are contrary to equity and good conscience — "We, therefore, in consideration of the premises-, do strictly enjoin and command you, the said A. B. and J. your wife, C. D. and E. F. your workmen, laborers, servants and agents, and each and every of you, under the penalty that may fall thereon, that you, and each and every of you, do from henceforth altogether and absolutely desist and refrain, from cutting down or destroying, the timber or other trees standing, growing or being in or upon the said mortgaged premises before mentioned, or aijy part thereof, and INJUNCTION TO STAT PEOCEEDINGS. 213 from taking and carrying away, or causing to bo taken and carried away, any wood lying or being upon the said premises, or any part thereof, and from committing or doing any further or other waste or spoil in or upon the said premises, or any part thereof, or in or upon any of the lands in question in the said cause, until our said court shall make other order to the contrary. Witness, A. 0. Z. our Chancellor, at Trenton, the day of , in the year, &o. H. S. L. Clk J. S. Sol X...FORM OF INJUNCTION TO STAY PROCEEDINGS AT LAW. New Jersey, to wit. — The state of New Jersey to A. B. his coun- sellors, attorneys, solicitors and agents, and each and every (1 of them, greeting : \ ' ' ) Whereas it hath been represented to our Chancellor, ' in our Court of Chancery, on the part of C. D. com- plainant, that he has lately exhibited his bill of complaint against you, the said A. B. and others, defendants, to be relieved touching the matters therein contained, in which said bill it is, among other matters, set forth that you, the said defendants, are combining and confederating with others to injure the complainant touching the mat- ters set forth in the said bill, and that the actings and doings of you, the said defendant, are contrary to equity and good conscience — We therefore, in consideration of the premises, and of the particular matters set forth in the said bill do strictly enjoin and command YOU, the said A. B. and all and every the persons before mentioned, and each and every of you, under the penalty that may fall thereon, that you, and every of you, do absolutely desist and refrain from all further proceedings at law against the said C. D. in a suit commenced by you, the said A. B. in our Supreme Court of Judicature, on a certain bond executed by the. said complainant, on the twelfth day of April, in the year, &c. and which said action you, the said defend- ant, threaten, as is alleged in the said bill, to notice and bring to trial ^214: EEOEIVEBS. at the next Circuit Court to be held in and for the county of Somerset, until you, the said defendant, shall have fully answered the bill of complaint, and our said court shall make other order to the contrary. Witness, A. 0. Z. our Chancellor, at Trenton, the day of , in the year, &c. H. S. L., Clk G. H. Sol. In all applications for injunctions, the bill, petition, report &o. whether there be an allowance or not, should be ffled in the office, there to remain of record. An argument fee of three dollars is usually allowed for the apphcation, whether made to the chancellor or a master. Though the object of the bill is simply an injunction, a subpcena to answer must be regularly served on the defendant, or the injunction wiU be dissolved, and the bill dismissed for that cause. II. RECEIVERS. When in the progress of a cause it becomes necessary to take charge of the estate of a party, it is usual to take an order of reference to a master to ap- point a receiver. I...FORM OF ORDER OF REFBEBNCB TO A MASTER TO APPOINT A RECEIVER. In Chanceey op New Jersey. Between A. B. Complainant, and C. D. Defendant. Upon motion this day made to the court, by E. F. solicitor for and of counsel with the defendant, in the presence of Gr. H. esquire, solicitor for and of counsel with the s^id A. B. and upon reading the affidavits of , taken and filed in this cause, and the matter having been argued by the counsel for the respective parties — It is, on this day of , in the year, &c. ordered and directed by the court, that it be referred to W. H. esquire, one of the masters of this On hill, &c. 215 court, to appoint a receiver of the rents and profits of the mortgaged premises mentioned and described in the said cause, and allow him a reasonable salary for his care and services therein, such person so to be appointed receiver first giving security, to be allowed of by said master, and taken before him, duly and annually to account for and pay what he shall so receive, as the court shall direct ; and the tenant and tenants of said premises are to pay their rents in arrear and the growing rents to such receiver, who is to be at liberty to let and set said premises from time to time, with the approbation of said master, as there shall be occasion ; and said receiver is to pay the balance of his accounts, from time to time, into this court, subject to the further order- of the court. And it is further ordered and directed, that the said complainant do entirely refrain from collecting or receiving the rents and profits of said premises, or any part thereof, and that the said rents and profits be paid to said receiver, and to no other person or persons whatever, until the further order of this court. A. 0. z., a II...FORM OF MASTER'S REPORT THEREON. In Chancehy of New Jeesey. Between A. B. Complainant, and 0. D. Defendant. ^ On hill. Report of master. To His Honor A. 0. Z. Chancellor, the subscriber respectfully reports, that, in pursuance of an order made in the above cause, bearing date the day of , in the year, &c. I did appoint Tuesday the day of , at o'clock in the noon, for the parties in said cause to appear before me, at my ofiSce in the city of Trenton, to make nomination for the ofSce of receiver, in said order mentioned, and to be heard touching the matters in and by said order referred to me, and did issue a summons for the said parties, respectively, to appear before me for the said purposes, at 216 kecognizance. the time and place aforesaid, which was duly served upon E. F. solicitor of the said C. D. as, by his acknowledgment made before me, appears, and upon G. H. solicitor of A. B. as by afiSdavit before me made fully appears ; and, at the time and place so ap- pointed, the said parties, by their respective solicitors, appeared before me, and made their nominations for the oflSce of receivers aforesaid, and were heard in reference to the matters in said order contained ; and the said nominations and the allegations of the parties having been by me duly considered, I did thereupon appoint, and do appoint S. E. esquire, of the city of Trenton, in this state, receiver, as mentioned in the said order, and to do and perform the duties and services enjoined on him by the said order ; and the said S. E. esquire, so appointed receiver, did propose as his surety L. B. of said city of Trenton, who was allowed and approved by me ; and the said S. E. esquire, and L. B. did thereupon enter into re- cognizance for the faithful execution by the said S. E. of his office of receiver, which is hereto annexed, and the same was duly acknowledged and taken before me, as therein stated ; and I do also fix and allow the sum of $ , yearly and every year, as a reasonable salary to said receiver, for his care and pains therein. All which is respectfully submitted this day of , in the year, &c. W. H. Master. III...FORM OF BBCOGNIZANCB. State of New Jebsey.- — Be it remembered, that on this day of , in the year, &c. before me, W. H. one of the masters in the Court of Chancery of said state, personally appeared S. E. and L. B. of the city of Trenton, &c. and severally aclmowledged them- selves to be indebted unto the state of New Jersey in the sum of (double the amount to come into the hands of the receiver, ) lawful money, &c. to be made and levied of their several goods and chattels, lands and tenements, upon condition, that if the said S. E. esquire, who hath been appointed receiver of the rents and profits of the mort- gaged premises in the bill in the above cause described, in pursuance APPOINTING EECEIVEE. 217 of an order made in said cause, bearing date on the fourteenth day of April, in the year, &c. and in the above report mentioned and referred to, do and shall, duly and faithfully, account for and pay what he shall so receive of said rents and profits, as the said Court of Chancery shall direct, and shall in all things well and truly fulfil and discharge the duties of his said office of receiver, then this recogni- zance shall be void, otherwise to remain in full force. Taken and acknowledged the day and year aforesaid, before me at the city of Trenton aforesaid. "W. H. Master. In some cases, however, the appointment i^ made directly by the Chancellor and the order is as follows : IV...FORM OF ORDER APPOINTINa RECEIVER, WHERE NO REFERENCE IS HAD TO A MASTER. Between A. B. Complainant, and 0. D. Defendant. In Chanceey of New Jersey. - On nil, &c. Application having been made to the court for the appointment of a receiver in this cause, of which application it appears to the court due notice has been given to the solicitor of the defendant, and it appearing to the court reasonable and proper that such application should be granted — It is, on motion of Mr. J. S., solicitor for and of counsel with complainant, ordered, that S. E. esquire, of the county of -, be, and he is hereby appointed a receiver in this cause, to take charge of all the personal estate of S. 0. deceased, the testator named in this cause, devised by the residuary clause in his will ; to collect all moneys due and owing, or to become due and owing, to the said estate ; to let out, take care of and take charge about and concerning all the lands embraced in. the said residuary clause in the said will ; to collect the rents for the same and to divide the lands 15 218 PETITION OF A MINOE. and personal estate among the persons in interest, according to their rights under the will of the said S. C. to report to this court from time to time of his proceedings as such receiver, and in all respects to act under the control and authority of this court, under powers to he hereafter enlarged or diminished at the pleasure of the court ; and that the receiver be allowed for his services just compensation, to be allowed by the court. Dated, &c. A. 0. Z. Ch. III. INFANTS. The manner of proceeding in the case of infant defendants, in whose behalf no application is made to the court for the appointment of a guardian, is shown ante pages 121, &o. Where, however, the infant has a defence, or, for any cause, it becomes de- sirable that he should have a special guardian ad litem, he may, if over fourteen yeSrs of age, petition the court for that purpose. The following is the I...PORM OF PETITION OF A MINOE OVER FOUETEEN TEARS OP AGE FOR APPOINTMENT OF GUARDIAN. In Chancery of New Jersey. * To His Honor A. 0. Z. esquire, Chancellor of the state of New Jersey. The petition of A. B. the son of C. B. late of the township of in the county of Warren, respectfully showeth, that your pe- titioner is one of the defendants named in a bill of complainant filed in this honorable court by C. D. late of the township of , in the said county of "Warren, complainant, against E. F. and M. his wife, and your petitioner and others defendants, to be relieved touching the matters in the said bill of complaint set forth ; that your petitioner is a minor under the age of twenty-one years, and over the age of fourteen years ; that, by reason of his minority, he is unable to answer or make defence unto the said bill of complaint in a legal, competent and proper manner. Your petitioner therefore prays, that your petitioner's stepfather G. H. who is also one of the defendants COlSrSENT OF GUAEDlAN. 2l9 to said bill of complaint, may be appointed by your Honor, in this honorable court, guardian ad litem of your petitioner, for him and in his behalf to make answer and defence to the said bill of complaint. And your petitioner will ever pray, &c. Dated, &c. A. B. Signed in the presence of J. C. Annex a consent of the proposed guardian, in the following form : II. I, G. H. above named, do hereby consent and agree to accept of the appointment of guardian ad litem, above prayed for, of A. B. son of C. B. a minor under the age of twenty-one years, to make answer and defence in behalf of the said infant to the bill of com- plaint lately exhibited in the Court of Chancery of the state of New Jersey, by C. D. the complainant, and against me the said Gr. H. and Ann my wife, the said A. B. and others, defendants. In witness whereof, I have hereunto subscribed my name, the fourteenth day of January, in the year, &c. G. H. Signed in the presence of J. C. And let the subscribing witness make an afBdavit at the foot of the consent, of the following purport : III. New Jebsey, ss. — J. C. late of , in the county of Sussex, of lawful age, being duly sworri according to law, on his oath doth depose and say, that he, this deponent, was present and saw G. H. subscribe his name to the above written agreement, the same having been by this deponent first read over to the said G. H. and this de- ponent was also present and saw the above named A. B. subscribe the foregoing and within written petition, the said petition having been by this deponent first read over to the said A. B. ; and this de- ponent saith, that from information given to him, and from the 220 APPOINTMENT OF GUAEDIAK. appearance of the said A. B. this deponent verily believes and hath no doubt that the said A. B. is a minor under the age of twenty-one years ; and this deponent further believes, from the above stated grounds of belief, that the said A. B. is over the age of fourteeen years. Further this deponent saith not. J. 0. Sworn and subscribed, at , in the county of , this A. D. before me. J. T. Master. Order, &c. The application may be made in vacation or in term ; the usual order is as follows : IV...FORM OF ORDER FOR APPOINTMENT OP GUARDIAN. In Chanceky of New Jersey. Between A. B. Complainant, and C. D. & ux. & al. De- fendants. Upon reading the petition filed in this cause, by A. B. one of the defendants in this cause, setting forth that he, the said A. B. is a minor under the age of twenty-one years, and over the age of four- teen years, and praying that G. H. one of the defendants in this cause, and the stepfather of the petitioner, may be appointed his guardian ad litem for him and in his behalf to make answer and defence to the complainant's bill of complaint, and upon reading the written assent of the said Gr. H. annexed to said petition that said appointment be made, and also the affidavit of J. C. verifying the age of the said petitioner, and setting forth that the said petition and assent were signed in his presence — It is ordered, that the said G. H. be appointed guardian ad litem of the said A. B. by whom he may appear and answer and defend this suit. A. 0. Z. G. Dated, &c. PETITION m BEHALF OF MINOES. 221 Where the infant is under fourteen years of age, and consequently not capable of selecting a guardian, the petition is by the parent or next friend of the infant. V...PORM OF PETITION IN BEHALF OF MINORS UNDER FOURTEEN YEARS OF AGE FOR APPOINTMENT OF GUARDIAN. In Chancery of New Jersey. To His Honor A. 0. Z. Chancellor of the state of New Zersey. The petition of G. H. and Ann his wife, late Ann B. respectfully showeth, that your petitioner Ann H. is the mother of A. B., C. B. &c. minors under the age of fourteen years, the children of C. B. late of the township of , in the county of Warren, deceased ; that the said minors are three of the defendants named in the bill of complaint exhibited in this honorable court by C. D. of the said county of "Warren, against your petitioners and the said minors, and one A. B. another minor and son of the said 0. B. deceased ; that the said B. B. is aged thirteen years the day of, &c. the said C. B. was ten years old on the day of, &c. alid your petitioners respectfully pray that your petitioner G. H. may be appointed guardian ad litem, to defend the said minors B. B., C. B. &c. against the said bill of complaint of the said C. D. And your petitioners, as in duty bound, will ever pray, &c. Dated, &c. Present. G. H. J. M. A. H. VI...CONSENT TO BE ANNEXED. I, G. H. of the township of Newton, in the county of Sussex, do hereby declare and express my assent and willingness to accept of the appointment of guardian ad litem above prayed for. Dated, &c. Present. G. H. J. M. 222 APPOINTING GnAEDIiN. TII...APPIDATITS TO BE ANNEXED. New Jbesey, ss. — Ann H. the petitioner named in the foregoing petition, having been duly sworn according to law, on her oath doth depose and say, that the above petition truly expresses the several and respective ages of her children B. B., C. B. &c. in the said petition named, according to the best of the recollection and belief of this deponent. Sworn and subscribed, &c. Ann H. VIII. New Jersey, ss. — J. M. late of , in the county of Sussex, of lawful age, being duly sworn according to law, on his oath doth depose and say, that he was present and saw G. H. and A. H. his wife, the petitioners named in the foregoing petition, duly sign the same, by subscribing their names thereto. And this deponent further saith, that he was present and saw the said G-. H. subscribe his name to the coYisent and agreement written at the foot of the above written petition, and further saith not. Sworn and subscribed, &c. J. M. IX...POBM OF ORDER APPOINTING GUARDIAN. In Chancery of New Jersey. Between C. D., Compl't and y Order &c. E. F. & ux. & al. Def 'ts. Upon reading the petition filed in this cause by the defendants G-. H. and Ann his wife, setting forth that the said Ann is the mother of B. B. and C. B. two of the defendants in this cause, and that her said children are minors under the age of fourteen years and praying that the said G-. H. may be appointed guardian ad litem, of the said minors ; and upon reading the written assent of the said G-. H. to PETITION. 223 said appointment, and the affidavit of J. M. that said petition and assent were duly signed, and the affidavit of the said Ann, wife of the said G. H. verifying the age of her said children — It is ordered, that the said G-. H. be appointed guardian ad litem of the said B. B. and C. B. by whom they may appear, and answer and defend this suit. A. 0. Z., C. Dated, &c. Where the proceeding is for the purpose of disposing of real estate, tlie property of infants, apply as follows : (See Rules 124 to 138, inclusive.) X...FORM OF PETITION. To the Honorable A. 0. Z., Chancellor of the state of New Jersey. The petition of A. B., of the county of Essex, in the state of New Jersey, respectfully showeth, that she is the mother of C. D. and E. F., infants under the age of twenty-one years, and that each of said infants is entitled to an undivided third part of a considerable real estate, subject to the right of dower of your petitioner, and that the said real estate is situated partly in the said county of Essex and partly in the county of Morris ; that the said land [here give a particular description of the property, and the reasons why it should be sold]. And your petitioner further shows, that she is willing to release her right of dower in the said premises upon these conditions, that the interest of such part of the purchase money as the Chancellor shall deem reasonable, be secured to her for life, or that such sum in gross as the Chancellor shall deem reasonable be paid to her. And your petitioner further shows, that your petitioner (or A. B.) is willing to become the special guardian of said infants in this matter, and that N. O. and P. Q. are offered as her securities for the just performance of her trust, as guardian of the said infants ; that they are fully adequate to become securities to the full value of the said infants' interest in the premises before mentioned, according to the rule established by the court. • 224 EEFEBENOB. And your petitioner further shows, that the interest of the said infants requires that their estate in the said lands he sold and dis- posed of Your petitioner therefore prays that the merits of this application may be inquired into, and that a sale of the said premises may be ordered, in such manner as the interest of the said infants may re- quire. A. B. AI'FIDATIT. New Jersey, Essex county, .s*. — A. B., the above petitioner, being duly sworn, on his oath saith, that the facts set forth in the above petition are true. A. B. Sworn, &c. XI...ORDBR OF REFERENCE. In Chancery of New Jersey. On application in behalf of C. D. and E. P., infants, for sale of lands. Application being made to the Chancellor by A. B., by her peti- tion, duly filed, as next friend and on behalf of her infant children, C. D. and E. P., stating that each of said infant children is seized in fee simple of one equal undivided third part of the lands therein described, as tenants in common, and praying a sale thereof, and that A. B. be' appointed guardian of said infants for that purpose — It is, on this first day of January, eighteen hundred and sixty-six, on motion of L. Z., of counsel with said applicant, ordered by the Chancellor, that it be referred to I. "W. S., one of the special masters of this court, to inquire and report if the said A. B. is a proper person to be appointed such guardian, what is the age of the infants, and what is the value of said real estate, and of the interest of the infants therein, and in what, amount the guardian should be required to give security, and whether the sureties offered by said guardian are sufiScient. A. 0. z., a master's eepoet. 225 XII...MASTER'S REPORT. In Chanceey of New Jebsey. In the matter of the application on behalf of 0. D. and E. F., infants, for sale of lands. In pursuance of an order of this court, bearing date on the first day of January, eighteen hundred and sixty-six, by which it was referred to me, I. "W. S., one of the special masters of this court, to inquire and report whether A. B., therein mentioned, is a suitable person to be appointed guardian of the above named infants in the premises, and what is the value of the lands and premises, in said order mentioned, and of the interest and estate of the infants therein, and in what amount the said guardian should give security, and whether the securities that may be offered are sufficient. I do report to his Honor the Chancellor, that I have been attended by L. Z., the solicitor of the applicant in the said order mentioned, and, having heard the proofs offered before me, do further report, that the said A. B. is the \describing the relationship, if any, or any other particulars that may appear proper^, that she is a resident of the county of Essex, and is a suitable and responsible person to be appointed guardian of the said infants. And I do further report,, that the said C. D. is of the age of twelve years, and the said E. F. of the age of eighteen years, that the value of the said premises, according to the evidence before ine, and which is' hereto annexed, is the sum of $ — — , the value of the estate and interest of the said infants therein being each $ ; and that the said A. B. should give security, in the sum of $ , to each of the said infants. And I do further report, that the persons proposed as securities, viz. N, 0. and P. Q., who reside in the said county of Essex, and are each of them, in property and estate, sufficient sureties under the rules of this court, [or that the real estate offered as security is unencumbured, and worth the sum of $ ,] [double the value of the premises^. I. w. s., M. a Dated, January 3, a. d. 1872. 226 OEDEK TO APPOINT O0AEDIAN. Note. — The master must examme witnosaes as to the facts reported upon, and may take the affidavit of the proposed securities as to their sufficiency in property ; and ho must pursue tliis course as to all matters of facts submitted to him. XIII.. .ORDER TO APPOINT GUARDIAN. In Chancery of New Jersey. In the matter of the application on behalf of 0. D. and B. F., infants, for sale of lands. Upon reading and filing the report of I. "W. S., esq., one of the special masters of this court, bearing date the third day of January eighteen hundred and seventy-two, made in pursuance of an order of reference m this matter, dated the first day of January, eighteen hundred and seventy-two, by which it appears that A. B. is a proper person to be appointed guardian of the infants in this matter ; that the value of their estate for the sale of which application is made is $ , and that N. 0. and V. Q., of the county of Essex, who are offered by the said A. B. for that purpose, are able and sufiScient sureties, and that said A. B. should give security to each of said infants in the sum of $ . It is thereupon, on this day of January, eighteen hundred and seventy-two, ordered, by A. 0. Z., Chancellor of the state of New Jersey, that the said A. B. be, and she hereby is appointed guardian in this matter for said infants, C. D. and E. F. ; and that said guardian shall give bond to each of the said infants, in the penal sum of $ , each, with N. 0. and P. Q., as her sureties, condi- tioned' for the just and faithful performance of the trust reposed in her, and for the observance of such orders and directions as the Chancellor shall from time to time make in the premises in relation to such trust ; and that the said bond shall be endorsed as satisfactory by the said master, and iiled with the clerk of the court. A. 0. z., a BOND. 227 XIT...BOND. Know all men by these presents, that we, A. B., X. O., and P. Q., all of the township of E., in the county of Essex, and state of Xew Jersey, are held and firmly bound unto C. D. in the sum of $ , lawful money of the United States of America, to be paid to the said C. D., his executors, administrators, or assigns; for which payment, well and truly to be made, we bind ourselves, and each of us by him- self our and each of our heirs, executors, and administratois, firmly by these presents. Sealed with our seals. Dated the day of , eighteen hundred and . The condition of the above obligation is such, that if such above bounded A. B., who was appointed by the Chancellor of the state of Xew Jersey guardian of the said C. D., on certain proceedings before him for the sale of real estate, under the provisions of the act entitled, " An act relative to the sale and disposition of the real estate of iofants," by an order dated on the day of eigh- teen hundred and seventy-two, shall justly and faithfully perform the trust reposed in her as such guardian, and shall observe such orders and directions as the Chancellor shall from time to time make in the premises in relation to such trust, then the above obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and delivered A. B. in the presence o^ N. 0. P. Q. Note. — A separate bond must be given to each infant. 228 XV...ORDBR TO REFER MERITS. In Chancery of New JekSey. In the matter of the application on behalf ] Order to refer of 0. D. and E. F., infants, for sale of ^ ., . I merits, dec. lands. 'l Application, by petition, having been made to the Chancellor, on behalf of C. D. and B. F., infants under the age of twenty-one years,' representing that said infants are each seized, in fee simple, of one equal undivided third part, of the lands and premises particularly mentioned and described in the said petition ; and, upon such appli- cation, A. B. having been appointed guardian of said infants, and having executed and filed a bond to each of the said infants for the faithful. performance of her trust, as required by law, in the sum and with the sureties directed by the order of her appointment — It is, on this sixth day of January, eighteen hundred and seventy- two, ordered by the Chancellor, that it be referred to I. "W. S., esq., one'of the masters of this court, to inquire into the merits of said application; and whether the interest of said infants requires, and will be substantially promoted by a sale of said lands, or any part thereof, and in what way or manner, and with what restrictions as to price, and with what other restrictions, if any, such sale ought to be made; and that said master report to this court with all convenient speed. A. 0. z. a XVI...MASTEE'S REPORT. In Chanoeey of New Jersey. In the matter of the application on behalf of C. D. and B. F., infants, for sale of lands. Report of master on order to refer merits. I, the undersigned, one of the masters of this honorable court, do respectfully report to the Chancellor, that I have been served with an order of reference in the above matter, bearing date the 229 day of January, eigMeen hundred seventy-two, directing me. as one of the masters of this court, to inquire into the merits of said applica- tion of A. B. respecting the sale of lands of the said infants, therein mentioned, and whether the interest of said infants requires, and will be substantially promoted by a sale of said lands, and in what way or manner, and with what restrictions, if any, the same ought to be made. I do further report, that I have been attended by L. Z., esq., solicitor and of counsel with the applicant, and by A. B., guardian of said infants, and that I have taken the depositions of witnesses, and have considered the matters referred to me. And I do further report, that the interest of the said infants, requires and will be substantially promoted by a sale of the whole, or such portion of the said lands as the said guardian, in the exer- cise of sound discretion, may think proper to dispose of; that the said lands and premises are now productive of little or no revenue. [Here give other reasons, and why a sale is advisable.] And I do further report, that in my opinion the market value of said lands will (not) increase during the minority of said infants, to an extent equal to the advantage to be derived from a sale. And I do further report, that the said A. B. is willing to release her right of dower in the said premises upon condition that a gross sum to be approved by the court be paid to her in lieu thereof, (or, that the interest of a reasonable sum, to be ascertained and approved by the court, and to be permanently invested for that purpose, be paid to her for her life, in lieu thereof). And I do further report, that it should be left to the sound discretion of the said guardian whether the said lands should be sold at public or private sale ; but that the same should not be sold below the sum of dollars, for the interest of the infants in the same, {or "the prices stated in schedule A, hereto annexed, for the interest of the infants in the several parcels thereof therein specified"). All which is respectfully submitted. Dated January — , A. D. 1872. I. W. S., M. 0. Note. — The master must return, with his report, the affidavits taken by him 230 OEDER TO SELL. XVII...ORDBR TO SBLl. In Chanceky of New Jeesey. In tlie matter of the application in behalf of C. D. and B. F., infants, for sale of lands. Order to sell. On reading and filing the report of I. W. S., esq., one of the masters of this court, made in the above matter, and bearing date the day of January, eighteen hundred and seventy-two, from which it appears, satisfactorily to the Chancellor, that the interest of the said infants requires and will be substantially promoted by a sale of their real estate, mentioned in the petition in this matter, and particu- larly designated in the schedule annexed to said report, marked Schedule A, for reasons stated in said report — It is now, on this day of January, eighteen hundred and sev- enty-two, on motion of L. Z., of counsel with the applicants, ordered, by the Chancellor, that the said guardian do sell all and singular the right and title of the said infants to the said lands in the said schedule particularly described. And such sale may be public or private, as the guardian shall deem most advantageous for the infants, and not below the prices fixed in the master's report, and upon such terms, as to credit and security, as she shall deem safe and best for the interest of the infants : and that, before any deeds are executed, the terms of sale shall be reported to the Chancellor by the guardian, in writing, and upon her oath, to be taken before a master, to the end that the same may be passed upon by the Chancellor before the sale be confirmed, and that he may make such order as he shall deem fit touching the investment and disposition of the proceeds. And if the said A. B., [the widow] entitled to dower, shall be willing to join in the sale, and release her right of dower, and shall, before the sale, agree by writing with said guardian to join in the sale, and release said dower, she shall be entitled, in lieu thereof, at her election, either to the payment of such sum in gross, arising from the sale, as the Chancellor shall judge reasonable, or to the annual interest, during her life, of such part of the sum for which the lands in which she has a right of dower shall be sold, as shall seem reason- able to, and be approved by the Chancellor. 231 XVIII...GUAEDIAN'S REPORT OP THE TERMS OF SALE. In Chancery of New Jersey, In the matter of the application in behalf of C. D. and E. F., infants. In pursuance of an order made for that purpose in the above mat- ter, by the Chancellor, on the day of January eighteen hundred and seventy-two, directing the subscriber, A. B., the special guardian appointed in this matter, to sell the right and title of the said infants to the lands particularly designated in the schedule annexed to the report of I. "W". S., one of the masters of this court, bearing date the day of January, eighteen hundred and seventy -two, I, the said A. B., do hereby report, that I have sold the interest of the said infants in the said lands at private sale to 0. P., of the city of Trenton, upon the following terms, to wit: The said 0. P. has agreed to pay the sum of ten thousand dollars for the said interest of the said 0. D. and E. F. in the said land and premises, whereof the sum of $5000 is to be paid in cash by the said 0. P. upon the delivery of the deed for the said premises, and the remaining $5000 of the consideration money will be secured by the said 0. P. by his bond, payable at the expiration of one year from the date of the said deed, and a mortgage upon the same premises, to secure the payment of the money in the said bond to be expressed, with lawful interest thereon, payable semi-annually. And I, the said A. B., do further report, that the said considera- tion money, when received by me, will be chargeable with the value of the right of dower of A. B., she having agreed, by writing de- livered to me prior to said sale, to join in the same, and to release her right of dower, and said lands being sold free from her right of dower. And I do further report, that the sum of $10,000 is the greatest sum that can now be procured for the same, and is not below the price fixed in the report of the master. A. B. 232 CONFlEMIlfG SALE. State of New Jersey, ss. — A. B., being duly sworn according to law, on her oath saith, that the matters and things set forth in the above report of' sales are true. A. B. Sworn, &c. XIX...CONFIEMING SALE. In Ohanceey of New Jersey. In the matter of, &c. On reading and filing the report of A. B., guardian of the said infants, stating the terms of sale of the lands of said infants, therein mentioned, as made and agreed to by and between the said guardian and 0. P., under and by virtue of an order of this court, it is ordered, that the said agreement be, and the same is hereby confirmed, ac cording to the terms and conditions in the said report mentioned. And it is further ordered, that the said guardian execute a deed to the said 0. P., for the premises in the said report set forth and re- ferred to, on his complying with the terms upon which the deed was to be delivered. And it is further ordered, that so much of the proceeds of the sale as shall remain after payment of the expenses thereof, and of this application, be put at interest, by the guardian, on good security by bond and mortgage, for the benefit of the said infants, and that the said guardian, as directed by the statute authorizing such sales, make a return, as soon as conveniently may be, to the Chancellor in writing, and upon her oath, to be taken before a master, of the in- vestment and disposition of the proceeds of said sale. A. 0. z., a NoTB. — In case the land agreed to be sold be subject to dower, and the 'person entitled thereto has agreed to join in the sale, and has released her right of dower, which should be set forth in the report of sale, and in case the terms of sale were agreed to with the understanding that the right of dower was to be released, then add to the above order the following: EEPOET OF nrVESTMENT. 233 " And it is further ordered, that suoh part of the purchase money as the Chancellor shall deem reasonable be put at interest on good real security, as aforesaid, for her benefit, and that the interest only of suoh part be by the said guardian, from time to time, as it may be received, paid over to the said A. B. (the -widow) during her natural life, unless she shall elect to receive a reasonable sum in gross to be approved by the Chancellor, in lieu of dovrer, in -which latter case she must apply to this court, by petition, for relief before such investment." Where the land is subject to a tenancy by the curtesy, instead of do-wer, this last clause must be .varied too meet the case. XX...REPOET OF INVESTMENT. In Chancery of Ne-w- Jersey. In the matter of, &c. In pursuance of the order of this court, made on the day of , -whereby it is ordered, as by reference thereunto -will appear, I, A. B., the guardian, therein mentioned, of the infants, C. D. and E. F., do report, that pursuant to the directions of the said order, I have invested the sum of $ at interest, on good bond and mort- gage, on a farm of one hundred acres, situate in the county of Essex, for the benefit of the *said infants, -which sum -was the -whole amount of the said infants' proportion of the proceeds of the sale of the said premises, after the payment of the expenses thereof, and of the application to this court ; and that I, A. B., have joined in the sale and conveyance of the said premises in my o-wn right, and have released my right of do-wer to the same ; and that I have also in- vested on good real security, as aforesaid, $ dollars, part of the purchase money, as an equivalent for my right of do-wer in the said premises, to the end that the interest thereof may be received by me during my natural life. Ne-w Jersey, Essex county, ss. — ^A. B., the guardian above named,- being duly s-worn, on her oath saith, the matters and things stated and set forth in the foregoing report are true. A. B, Sworn, &c. 16 234 PETITION FOE SUEPLITS MONET. IV. SURPLUS MONEY I...FORM OF PETITION FOR SURPLUS MONET. To His Honor A. 0. Z. Chancellor of the state of New Jersey. The petition of A. B. of the county of , in the state of New- Jersey, respectfully showeth, that an execution, tested on the day of , in the year, &c. issued out of the Court of Chancery of the said state, in a certain cause wherein C. D. was complainant, and your petitioner and S. his wife and E. F. were defendants, which execution was directed to the sheriff of the said county of , commanding him to make sale according to law, in the first place, of three tracts of land, described in a certain mortgage bearing date on the twenty-ninth day of May, in the year, &c. and that out of the proceeds of such sale he should pay to the said complainant, or to his solicitor, the sum of one thousand dollars, with the interest thereon from the day jii , in the year, &c. and also the sum of dollars, of costs, if the same would so far extend ; and that he should then make sale of the tract of land described in the mortgage bearing date on the day of , in the year, &c. and that out of the proceeds of such sale he should pay to the said com- plainant, or to his solicitor, the sum of five hundred dollars, with interest thereon from the said day of , and that he should apply the surplus money, if any there be, arising from the last men- tioned sale, to the payment of such part of the said sum of one thousand dollars, with the interest thereon as aforesaid, and of so much of the said sum of dollars, of costs, as shall remain unpaid by the proceeds of the sales of the said three tracts ■ of land first directed to be sold. And, in case more money should be raised by the said sales than should be sufBcient to answer such payments, the said sheriff was commanded to bring such surplus money into the said court, and deposite the same with the clerk thereof, until the further order of the said court, as by reference to the said execution will more fully appear. And your petitioner further shows unto your Honor, that, in pursuance of the said writ of execution, W. B. PETtTION FOE SUEPLtrS MONET. 28S esquire, sheriff of the said county of , has made sale of the several tracts of land mentioned in the said writ, and has deposited with the clerk of the said Court of Chancery the sum of five hundred dollars, as the surplus money remaining in his hands after the several payments, which by the said writ he was commanded to to make. And your petitioner further shows unto your Honor, that one B. F. was made a defendant in the said suit, and a subposna was returned by the sheriff of the county of , duly served upon him, but that the said E. F. did not cause his appearance to be entered, nor file any plea, answer or demurrer to the bill of complaint. And your petitioner further shows, that the several tracts of land directed by the said writ of execution to be sold, were a part of the real estate of the said petitioner, and were sold for the payment and satisfaction of certain mortgages given by your petitioner to the said C. D. which mortgages were discharged by the said sales, and your petitioner is therefore entitled to receive the surplus money as aforesaid deposited with the clerk of this court. Your petitioner therefore prays, that an order of this court may be made, directing the said clerk to pay over to your petitioner the said surplus money, deposited with him as aforesaid by the sheriff of the said county of , or such order as to your Honor shall seem proper. And your petitioner will ever pray, &c. Dated, &c. J. S. Solicitor and of counsel with petitioner. New Jeesey, to wit — A. B. the petitioner named in the foregoing petition, being duly sworn, doth declare, that the matters and things set forth in the foregoing petition are true, so far as they relate to the acts of this deponent, and so far as they relate to the acts and deeds of others, he believes them to be true. A. B. Sworn and subscribed at Trenton, the day of, &c. before me. J. E. Master. 236 EEFEEENCE ON PETITION FOE STTEPLUS. Petitions for surplus money may conform to the above in all oases, except as specified in rule 153, only varying the facts stated so as to meet the case. The afi&davit is sometimes omitted, and is not in ordinary cases absolutely necessary, though costs are always allowed for it when made. An order of reference is made in all oases where there are parties requiring notice, or any facts in the case requiring investigation. In a case where, upon the face of the decree under which the money is brought in, it appears that the petitioner is, beyond a question entitled to it, an order for payment will be made without a reference. II...FORM: OF ORDER OF REFERENCE ON PETITION FOR SURPLUS. In Chanceby of New Jersey. Between C. D., Complainant, and A. B. & ux. & al. Defendants. On petition of A. B. for payment of surplus money. Order. Upon reading and filing the petition of A. B. setting forth that the sheriff of the county of has deposited with the clerk of this court the sum of Ave hundred dollars, being the surplus money £ rising from the sales of certain real estate of the said petitioner, made by virtue of an execution issued out of this court, in a certain cause wherein C. D. was complainant, and the said A. B. and S. 'his wife and E. F. were defendants, and praying that an order may be made upon the said clerk to pay over the said surplus money to the said petitioner, or such other order as may be proper in the premises — It is thereupon, on this day of , in the year, &c. or- dered, adjudged and decreed, that the said petition, and the matters and things therein contained, be referred to J. D. esquire, one of the masters of this court, to ascertain the truth of the allegations of the said petition, and whether the said petition, is by priority of lien, entitled to the said surplus money; and that he make report thereon with all convenient speed. And all further directions are reserved until the coming in of the said report. A. o. z. a The master will, in the investigation, pursue strictly the directions of the order, giving notice to all parties interested. 23t III...PORM OP MASTER'S REPORT ON PETITION FOR SURPLUS. In pursuance of an order of this court, bearing date on the day of , in the year, &c. referring the petition of the said A. B. and the matters therein contained, to the subscriber, one of the masters of the Court of Chancery of the state of New Jersey, to report thereon, I, J. D. one of the masters of the said court named in the said order, do report, that I have been attended by the solicitor of the petitioner, and also by the solicitor of one B. F. claiming to be interested in, and to be entitled to, some part of the surplus money mentioned in the said petition, and baving heard the proofs of the parties, do report, that the matters and things set forth in the said petition are true, and that the sheriff of the county of has deposited with the clerk of this court the sum of five hundred dollars, as the surplus money arising from the sale of certain mortgaged premises sold by virtue of an execution issued out of this honorable court as the premises of the said A. B. to satisfy certain mortgages given by the said A. B. and wife to C. D. And I do further report, that it has appeared in evidence before me that the said B. F. ob- tained a judgment in a plea of trespass on the case upon promises against the said A. B. on the day of , in the year, &c. in the inferior Court of Common Pleas of the said county of , for the sum of dollars, damages, and dollars, costs of suit, amounting to the sum of . and that execution was thereon issued and delivered to the sheriff of the said county of , who levied on the said mortgaged premises, besides other property of the said A. B. And I do further report, that by virtue of the said execution last mentioned, the said sheriff made sale of certain personal property of the said A. B. on the day of last, and that he received on that day from such sale the sum of dollars. And I do further report, that, on the said day of , the principal and interest due to the said E. F. on his said judgment amounted to the sum of dollars after deducting the said sum received by the said sheriff towards the payment thereof, and that the said E. P. is entitled to receive the said sum of dollars, with interest, out of the said surplus money deposited with the said clerk as aforesaid, 238 ORDER ON PETITION FOR SURPLUS. and that the said A. B. is entitled to receive the remainder of the said surplus money, after making such payment to the said E. F. as aforesaid All which -will more fully appear in the schedule to this my report annexed, and which I pray may be taken as part hereof All which is respectfully submitted. J. D. Master. Dated, &c. Schedule. Amount deposited with the clerk of this court. Amount of judgment in favor of E. P. dated, &c. and costs, Interest to , $500.00 $200.00 3.50 $203.50 Amount of sales of property of A. B. on, &c. 60 00 Balance due E. F. on, &c . 1 43 50 Due to the petitioner. $356.50 J. D. Master. IV...FIN'AL ORDER ON PETITION FOR SURPLUS. Upon reading and filing the report of J, D esquire, one of the masters of this court, to whom was referred the matters contained in the petition of the said A. B. which said report bears date on the day of instant, whereby it appears that the sheriff of the county of ■ has deposited with the clerk of this court the sum of five hundred dollars, as the snrplus money arising from the sale of certain mortgaged premises sold by virtue of an execution issued out of this court, as the premises of the said A. B. to satisfy certain mortgages given by the said A B. and wife to C. D ; and it further appearing by the said report, that one E. F. is entitled to receive the sum of dollars, with interest from the day of last past, out of the said surplus money, being the balance due the said SCIRE FACIAS. 239 E, F. upon a certain judgment obtained by him against the said A. B. ; and that the said A. B. is entitled to receive the remainder of the said surplus money after such payment to the said E. F. ; and upon reading the petition of the said A. B. praying that such order be made in the premises as shall be agreeable to equity — It is there- fore, on this day of , in the year, &c. by his Honor A. 0. Z. Chancellor of the state of New Jersey, on motion of J. S. solicitor and of counsel with the petitioner, ordered, adjudged and decreed, that the said master's report be in all things confirmed. And it is further ordered, adjudged and decreed, that the clerk of this court do pay unto the said E. F. the said sum of dollars, with interest thereon from the day of last until the date of this order, with his costs in this case, to be taxed, out of the said surplus money deposited in his hands as aforesaid, and that the said clerk, after de- ducting the amount of per centage allowed to him upon the said surplus money, do pay the remainder thereof to the said A. B. or his solicitor. A. 0. Z. G. V. SCIRE FACIAS. When a year and a day have elapsed since the decree, the complainant cannot take execution as of course, hut must revive the decree by scire facias. The motion for an order that a sci. fa. issue, may he made in vacation. The production of the original decree, unsatisfied, or a copy, with a certificate from the clerk's ofSce that no execution has been issued — or, if issued, satisfactory proof that it has not been executed, is aU that is usually required in support of the motion. 240 WEIT OF BOIBE FACIAS. I...PORM OF ORDER FOE SCIRE FACIAS. In Chancery of New Jersey. ^ Order, &c. Between John Doe, Complainant, and Eichard Roe, Defendant. Upon opening the matter in this cause to the court, and it ap- pearing that, in the term of , in the year, &c. in the Court of Chancery of the state of New Jersey, by a certain final decree made in this cause — It was ordered, adjudged and decreed, that so much of certain mortgaged premises mentioned in the hill of complaint, as should be needful for the purpose, should be sold, to pay unto the above named complainant John Doe the debt, interest and costs, as ordered by the said decree, and that a writ of fieri facias should issue to the sheriff of the county of Mercer, commanding him to make sale of the said mortgaged premises for that purpose. And it further appearing that no writ of fieri facias has been issued, pursuant to the said decree — It is thereupon, on motion of J. S. of counsel with the complainant, on this day of , in the year, &c. by his Honor the Chancellor, ordered, that a scire facias to revive the said decree, according to the force, form and effect thereof, do issue out of this court, commanding the said defendant to show cause on the day of next, why a writ of fieri facias should not issue, in pursuance of the statute in such case made and provided. A. O. z., a The writ issues upon filing this order with the cleric. IL..FORM OF WRIT OF SCIRE FACIAS. New Jersey, to wit. — The state of New Jersey to the sheriff of the the county of Mercer, greeting : "Whereas, on the day of , in the year, &c. at a Court of Chancery, holden at Trenton by His Honor, ""^'^^ A. 0. Z., Chancellor of the state of New Jersey, by a certain degree made in a certain cause depending in the said court, * * WEIT OF SCIBE FACIAS. 241 wherein John Doe was complainant, and Richard Roe was defend- ant — It was ordered, adjudged and decreed, that the bill of com- plaint be taken as confessed, and the master's report, and all the matters and things therein contained, should stand confirmed, and that the said complainant is entitled to have the sum of , with the lawful interest thereon, to be computed from the day of , together with the costs of this suit, to he taxed, raised and paid out of the mortgaged premises, and that so much of the estate and premises in the said mortgage contained as should be suflScient to raise and satisfy the said debt, interest and costs, be sold, and that a writ, of fieri facias should issue for that purpose out of this court, directed to the sheriff of the said county of Mercer, commanding him to make sale according to law of so much of the said mortgaged premises as should be sufficient to satisfy the said debt, interest and costs, as by reference to the said decree, now remaining on record, will more fully appear. And whereas, on behalf of the said John Doe, in our said court, before our said Chancellor, at Trenton, it has been sufficiently testified, that although the decree aforesaid has been made, yet execution of the debt, interest and costs aforesaid still remain to be made — Whereupon the said John Doe has humbly be- sought us to provide him a proper remedy in this behalf, and we being willing that what is just in this behalf be done, do command you, that, by honest and lawful men of our county, you do make known to the said Richard Roe, that he be before our said Chancellor, in our Court of Chancery at Trenton aforesaid, on the day of next, to show cause, if any he has, or knows of anything to say, why the said John Doe ought not to have execution against him, according to the force, form and effect of the said decree, if it shall seem expedient so to do, and further to do and receive what our said oourt shall then and there consider in this behalf: and have you then there the names^of those by whom you shall so make known to him as aforesaid, and also this writ. "Witness, His Honor, A. 0. Z;, Chancellor, at Trenton aforesaid, the day of , in the year, &c. J. S. Sol. H. S. L. Clh. 242 FINAL DECKEE. Sheriff's return on scire facias. By virtue of the within writ, by A. B. and 0. D. honest and law- ful men of my county, I have made known to the within named Kichard Roe that he be and appear before the Chancellor, at the time and place named in the within writ. R. J. Sheriff. Dated, &c. If the defendant is a non-resident, and so returned by the sheriff, with the usual affidavit of non-resldenoe, the common order of publication as ante 116, must be taken and published, and proof made of the publication when the final decree will be made. But if the defendant Is returned served, the final decree may be made, if there is no appearance. III...FORM OP FINAL DECREE ON A SCIRE EACIAS. Upon opening the matters in this cause to the court by J. S. solicitor for and of counsel with the complainant, and it appearing that a writ of scire facias, issuing out of this court, directed to the sheriff of the county of Mercer, commanding him that he cause to be made known to the said Richard Roe, that he be before this court on the day of , to show, if they have or know of anything to say, why the said John Doe ought not to have execution against him, according to the force, form and effect of a certain decree, made in a certain cause depending in this court, wherein the said John D(>e is complainant, and the said Richard Roe is defendant, has been duly returned served upon the said defendant by the said sheriff of the county of Mercer ; and it fnrther appearing that the said defendant has not caused any appearance to be entered to the said writ of scire facias, and no cause being shown to the contrary — It is, on this day of , in the term of , in the year, &c. at a Court of Chancery holden at Trenton by His Honor A. 0. Z. Chancellor, ordered, adjudged and decreed, that a writ of fieri facias do issue, directed to the sheriff of the said county of Mercer, com- FIEEI FACIAS. MS manding him to make sale of so much of the mortgaged premises mentioned in the said decree as will he sufficient to satisfy the deht, interest and costs of the said complainant in the said decree men- tioned, according to the force, form and effect of the said decree and the statute in such case made and provided, and^lso the costs thereof. A. 0. z., a Execution issues immediately upon this decree being filed. The proceedings are required to be enrolled. IT...FORM OP FIERI FACIAS ON THE SAME. New Jebsey, to wit. — The state of New Jersey to our sheriff of our cownty of Mercer, greeting : j _ „ ) Whereas, on the day of , in the year, &c. ( ) at a Court of Chancery holden at Trenton before our Chancellor, by a certain decree made in a certain cause, wherein John Doe is complainant, and Richard Eoe is defendant — It was ordered, adjudged and decreed, that the said complainant is entitled to have the sum of dollars, with the lawful interest thereon, to he computed from the day of , together with the costs of this suit, to be taxed, raised and paid out of the mort- gaged premises mentioned in the bill of complaint, and that so much of the said mortgaged premises mentioned and set forth in the said% bill of complaint, that is to say (here describe the premises to be sold) — Together with all and singular the appurtenances and the reversions, remainders, rents, issues and profits thereof, and all the estate, right, title, interest, use, possession, property, claim and de- mand of the said defendant of, in, and to the same, as would be sufficient to raise and satisfy the said debt, interest and costs, be sold, and that a writ of fieri facias should issue for that purpose out of the said court, directed to the sheriff of the county of Mercer, commanding him to make sale according to law of so much of the said mortgaged premises as would be sufficient 244 FIEEI FACUS. to satisfy the said debt, interest and costs, as by reference to the said decree will appear. And whereas, on the behalf of the said complainant, in our said court, before our said Chancellor, at Trenton, at the term of last, it was suificiently testified, that although the decree aforesaid had been made, yet execution of the debt, interest and costs aforesaid still remain to be made ; and there- upon the said complainant, having besought us to provide him a proper remedy in that behalf, and we being willing that what was just in that behalf be done, did command the said sheriff of the said county of Mercer, that, by honest and lawful men of his county, he should make known to the said Eichard Eoe that he be before our said Chancellor, in our Court of Chancery, at Trenton aforesaid, on the day of then next, to show if he had, or knew of any thing to say, why the said complainant ought not to have execution, against him, according to the force, form and effect of the said decree, and also the costs hereof, and to do and receive what our said court should then and there consider in that behalf; and thereupon such further proceedings were had, that on the day of , in the year, &c. in our said court, before our said Chancellor, at Trenton — It was ordered, adjudged and decreed, thata writof^en/acms should issue, directed to the sheriff of the said county of Mercer, command- ing him to make sale of so much of the mortgaged premises men- tioned in the said decree as would be sufficient to satisfy the said debt, interest and costs of the said complainant, according- to the force, form and effect of the said decree ; and whereas the costs of the said complainant have been dul}' taxed at the sum of dollars, and the costs of the proceedings in said scire facias have been duly taxed at therefore you are hereby commanded that you cause to be made of the premises aforesaid, by selling so much thereof as may be needful and necessary for the purpose, the said sum of dollars, together with the lawful interest thereon, as aforesaid, and also the said sum of dollars, of costs, together with , being the costs on scire facias as aforesaid : and that you have those moneys before our said Chancellor, in our said Court of Chancery, at Trenton, on the day of next, to render to the said com- plainant, and also the surplus money, if any there be, to abide the OEOEE FOE FEIGNED ISSUE. 245 further order of the said court, according to the decree aforesaid, and that you do make return at the time and place aforesaid, hy certificate under'your hand, of the manner in which you shall have executed the said writ, together with the said writ. Witness, His Honor, A. 0. Z., Chancellor of the said state, at Trenton aforesaid, the day of , in the year, &c. H. S. L. Clh. J. S. Sol. VI. PROCEEDINGS IN FEIGNED ISSUES. i...i'orm: of order for feigned issue. In Chancery of New Jersey. Between John Nokes, Complainant, and Eichard Stokes, Defendant. Order, &c. This cause coming on to he heard at the last term of this court, holden at Trenton hy A. 0. Z., Chancellor of the state of New Jersey, in the presence of A. B. of counsel with the complainant, and C. D. of counsel with the defendant, whereupon, and upon hear- ing the bill of complaint, answer, replication and depositions, exhibits and evidence in the cause read, and upon hearing what was alleged by the counsel for the said respective parties, the Chancellor took time to consider and advise thereon, and now on this day of , in the year, &c. — It is ordered, adjudged and decreed, and the Chancellor, by virtue of the power and authority of this court, doth adjudge and decree, at the instance and upon the motion of the com- plainant, by his said counsel, that a feigned issue be formed in the Su- preme Court of Judicature of New Jersey, and tried in the ordinary manner, between the said John Nokes, plaintiff, and Eichard Stokes, defendant, by a jury of the county of Mercer, at the next Circuit 246 CtBCTJIT EECOED MADE UP. Court to be holden in the said county, to inquire, ascertain and determine, by the verdict of said jury, whether the erection of the dam by the defendant, mentioned in the pleadings in this cause, has seriously and permanently affected and injured the meadows of the complainant, lying above it ; and that either party may notice the cause for trial, and the defendant in the issue may carry down the record by proviso, in order that the trial may be had at the ensuing circuit ; and that a special jury will be ordered by this court, on the application of either party, subject to the preference given . to the plaintiff by the rules of the Supreme Court ; and that copies of the depositions, certiiied by the clerk of this court, be read, and received in evidence on said trial, as rebutting evidence, or as original evi- dence, in case the witnesses who testified to the same be dead, or from sickness or other suflScient cause be unable to attend said trial ; and that no new witnesses shall be produced at said trial without giving ten days' notice of the intention, with the name, addition and place of abode of such witnesses ; and that all further directions be reserved until the said issue shall be tried, and the postea returned to this court. A. o. z. a n...CmOUIT RECORD MADE UP, AND TAKEN DOWN TO THE CIRCUIT. New Jersey Supeeme Court. Pleas before the Justices of the Supreme Court of Judicature of the state of New Jersey, at Trenton, of the term of , in the year, &c. — "Witness M. B. esquire, Chief Justice. C. P. S. Clk Merger County, ss. — John Nokes puts in his place A. B. his attorney, against Eichard Stokes, in a plea of trespass on the case &c. Mercer County, ss. — Eichard Stokes puts in his place C. D. his attorney, at the suit of John Nokes, in a plea of trespass on the case, &c. CIECUIT RECORD MADE UP. 24rY Meeceb County, ss. — Be it remembered, that on the day of , before the Justices of the Supreme Court of Judicature of the state of New Jersey, at Trenton, came John Nokes, the plain- tiff in this suit, by A. B. his attorney, and brought into this court a certain bill against Eichard Stokes, the defendant in this suit, the said defendant being in custody, &c. of a plea of trespass on the case, and there are pledges of prosecution, viz. John Doe and Richard Roe — which said bill follows in these words, to wit : Meecer County, ss. — John Nokes complains of Richard Stokes, in custody, &c. for, that whereas, on the day of , in the year, &c. at Nottingham, in the county of Mercer, a certain discourse was moved and had by and between the said John Nokes and Richard Stokes, of and concernitig a certain suit depending in the High Court of Chancery of the state of New Jersey, wherein the said John Nokes is complainant, and the said Richard Stokes is de- fendant ; and upon that discourse a question then and there arose, and was debated between the said John Nokes and the said Richard Stokes, whether a certain dam erected by the said Richard Stokes, in creek, in the said county of Mercer, had seriously and permanently affected and injured the meadows of the said John Nokes, lying and being above the said dam, in the county aforesaid; and the said 'John Nokes then and there asserted and affirmed, that the said dam, so as aforesaid erected in creek, in the county of Mercer aforesaid, had seriously and permanently affected and injured the meadows of the said John Nokes, lying and being above the said dam as aforesaid ; which said assertion and afSrmation of the said John Nokes the said Richard Stokes then and there wholly denied, and asserted to the contrary thereof; and thereupon, afterwards, to wit, on the day and year last aforesaid, at Nottingham aforesaid, in consideration that the said John Nokes, at the special instance and request of the said Eichard Stokes, had then and there paid to the said Richard Stokes the sum of $100, lawful money of the U. S. the said Richard Stokes then and there undertook and faithfully promised the said John Nokes to pay him the sum of $200, like lawful money as aforesaid, in case the said dam, so as aforesaid erected in creek, in the county of Mercer aforesaid, had seriously and perma- 248 ClEOtJIT EEOORD MADE TTP. nently affected and injured the meadows of the said John Nokes, lying and being above the said dam as aforesaid, and that the said John Nokes in fact says, that the said dam, so as aforesaid erected in creek, in the county of Mercer, has seriously and perma- nently affected and injured the meadows of him the said John Nokes, lying and being above the said dam as aforesaid fo wit, on the day of , in the year, &c. at Nottingham aforesaid, whereof the said Eichard Stokes afterwards, to wit, on the said day of , in the year, &c. at Nottingham aforesaid, had notice, nevertheless the said Bichard Stokes, not regarding his said promises and under- takings, by him in form aforesaid made, has not as yet paid to the said John Nokes the said sum of $200, nor any part thereof, although so to do the said Eichard Stokes, afterwards, to wit, on the day and year aforesaid, and often afterwards, at Nottingham aforesaid, was by the said John Nokes requested, but the same to him to pay he hath hitherto altogether refused, and since doth refuse, to the damage of the said John Nokes $500, and therefore he brings suit, &c. And the said Eichard Stokes, by C. D. his attorney, comes and defends the wrong and injury where, &c. and says, the said John Nokes ought not to have and maintain the aforesaid action against him, because, he says, that though true it is the said discourse, in the plaintiff's declaration mentioned, was had and moved by and between the said John Nokes and the said Eichard Stokes, wherein the questions did arise as aforesaid, and that he did undertake and promise, in manner and form as the said John Nokes hath above in that behalf alleged, nevertheless, for plea in this behalf, the said Eichard Stolces says, that the said dam, so as aforesaid erected in creek, in the county of Mercer aforesaid, has not seriously and perma- nently affected and injured the meadows of the said John Nokes, lying and being above the said dam as aforesaid, and of this he puts himself upon the country, &c. And the said John Nokes doth the like, &c. The foregoing is a true transcript of the declaration and pleadings in this case, remaining of record in the clerk's office of the Supreme Court of Judicature of the state of New Jersey. PfiOCEEDINQS IN LtlNACY. 249 In witness whereof, I have hereunto set my hand, and caused the ^ — ^^^ seal of the said court to be hereunto affixed, at Trenton, I L. S. I *^^® ^^y °f 1 i'l *h^ J'^ear, &c. C. P. S. Clh. VII. PROCEEDINGS IN LUNACY. I...PORM OP PETITION POE COMMISSION OP LUNACY, &c. To Ms His Honor A, 0. Z. Chancellor of the state of New Jersey. The petitition of A. B. of the township of Gloucester, in the county of Gloucester and state of NSw Jersey, humbly showeth, that C. B. of the township of , in the county of Burlington, and state aforesaid, your petitioner's father, is now, and for the space of three years last past, and upwards, has been so far deprived of his reason and understanding that he is rendered altogether unfit and unable to govern himself or to manage his affairs, as by the affidavits annexed appears : your petitioner therefore most humbly prays, that your Honor wUl be pleased to order that a commission, in the nature of a writ of de lunatico inquirendo, may issue out of this honorable court, to inquire of the lunacy of the said G. B. directed to such persons as your Honor shall think fit. And your petitioner shall everjpray, &c. A. B. II...PORM OP APPIDAYITS TO BE ANNEXED TO PETITION. New Jeeset, ss. — A. 0. and A. D. both of the township of — in the county of Burlington and state of New Jersey, both being of full age, and being duly sworn according to law, on their oaths say, that they, . these deponents, for the space of fifteen years and upwards, have known and been well acquainted, and frequently dis- coursed with 0. B. of said township of Evesham ; and these 17 250 AFFIDAVIT TO PETITION. deponents further severally say, that within the space of three 3-ears last past they have, by frequently observing the behavior, words and actions of the said C. B. looked upon him to be a person deprived of his reason and understanding, in a very great degree. — And this deponent A. D. for himself saith, that he has lately been present with the said C. B. when the latter insisted that there were strangers in his room, who came there for the purpose of destroying him, which this deponent says was altogether unfounded in fact, and a consequence of the derangement of his mind. And these deponents further severally say, that they believe that the said C. B. is no ways capable of governing himself or his estate,, A. C. Sworn and subscribed, the 13th day A. D. of October, A. D. 1872, before me. B. C. Master. The application for a commission may be made in or out of term. It must be accompanied by the affidavits of at least two persons, evincing the lunacy or idiocy of the party against whom the commission is prayed. Upon presenting it to the chancellor, he will make an order for a commission. The affidavits should be annexed to the petition, and the petition, &o. en- dorsed : In Chancehy of New Jersey. In matter of the alleged lunacy (or ] idiocy) of C. B. of the township of I Petition ami affidavits. , in the county of . i G. H Sol. The fees allowed are, thirty cents a folio for drawing and engrossing the petition, twenty cents a folio for drawing affidavits, and twenty cents for swearmg or affirming each witness. A retaining fee of four dollars is allowed sohcitor and counsel, and twelve cents to clerk for filing each paper. COMMISSION OF LUNACY. 251 IIT...FORM OF ORDER FOR COMMISSION OF LUNACY. In Chancery op New Jersey. B. I ,. )■ Order, &c. In the matter of C. B. alleged to be a lunatic Upon opening the matter this day to the Chancellor, on behalf of J. S. solicitor for and of counsel with the petitioner, and upon reading the petition of A. B. and the afSdavits of A. C. and A. D. thereto annexed — It is ordered, that, upon filing the said petition and aflSdavits, a commission, in the nature of a writ de lunatico in- quirendo, do issue out of, and under the seal of this court, agreeably to the prayer of the said petition, to inquire of the lunacy of the said C B. to be directed to E. F., C. F. and G H. esquires, of the county of Burlington, who, or any two of them, are hereby ap- appointed commissioners for the purpose aforesaid. A. 0. Z. 0. Dated October 15, 1871. The party applying for the commiasion should nominate suitable persons as commissioners, one at least, of whom should be a master in chancery. Upon filing the order, draw a commission, and subscribe it with the solicitor's name, and get the signature of the clerk and the seal of the court attached to it. Fees. — To solicitor for drawing and engrossing order thirty cents a folio, and one doUar and fifty cents for the motion ; chancellor for signing one dollar and thirty-four cents ; clerk filing twelve cents. IV...FORM OF COMMISSION OF LUNACY. New Jersey, ss. — The State of New Jersey to E. F., C. F. and G. H. esquires, of the county of Burlington and state of New Jersey, * * Know ye that we have assigned you, and any two of you, and you are hereby assigned to inquire, by the oaths ' or affirmations of good and lawful men of the said county of Burlington, by whom the truth of the matter may be better known, 262 COMMISSION OF LUNACY. whetiier C. B. of the township of , in the county of Burlington and state aforesaid, is a lunatic, so that he is not fit for the govern- ment of himself, his messuages, lands and tenements, goods and chattels, and if so, from what time, after what manner, and how; and if the said 0. B. being in the said condition, hath alienated anj- lands and tenements or not, and if so, what lands and what tenements, to what person or persons, where, when and after what manner ; and what lands and tenements, goods and chattels yet remain to him ; and of what person or persons, as well the lands and tenements so alienated as the lands and tenements to him retained, are held, and after what manner, and how much they are worth by the year in all issues, and who are his nearest heir or heirs, and of what age or ages ; and therefore we command you, that at certain days and places, which you, or any two of you, shall for that purpose appoint, you diligently make inquisition in the premises, and the same distinctly and plainly make to our Chancellor, in our Court of Chancery at Trenton, under your seals, or the seals of any two of you, and the seals of those persons by whom it shall be made, without delay you • send, and this our writ. For we command, by the tenor of these presents, our sheriff of our county of Burlington aforesaid, that at certain days and places which you, or any two of you, shall make known to him, he cause to come before you, or any two of you, so many and such good and lawful men of the said county of Burlington, each of whom is a citizen of this state resident in the said county of Burlington, above the age of twenty-one years and under the age of sixty-five years, and who hath a freehold in lands, messuages or tenements in the said county, by whom the truth of the matter in the premises may be better known and inquired into. Witness, A. 0. Z. Chancellor of our said state, at Trenton, the fifteenth day of October, in the year, &c. H. S. L. Clk. G. H. Sol. The commissioners should annex all their proceedings, such as the venire, panel, inquisition and summonses, if any are issued, to the commission, and return it with the following endorsement : PEEOEPT TO THE SHERIFF. 253 , " Tlie execution of the within commission appears from the proceedings and inquisition annexed." (Signed hy the commissioners.) The return should be made within two months from the time of making the order, and if more time shall have elapsed between the making of the order and the return of the inquisition, the chancellor will not make the decree of con- firmation without good cause being shown for the delay. The commissioners, on receiving the commission, should appoint a time and place for holding the inquest. It should be held in the county where the lunatic or idiot resides. The following venire should then be prepared, and given to the sheriff, and summonses be issued, signed by the commissioners, to the persons interested, to attend at the tune and place appointed. Fees. — Drawing commission, &c. thirty cents a folio, seal forty cents ; com- missioners two dollars a day each, for taking inquisition ; clerk fiUng commis- sion and return twenty-four cents. The counsel is also allowed three dollars for attending inquest. T...PORM OF PRECEPT TO THE SHERIFF. t By virtue of a commission in the nature of a writ de lunatico in- quirendo, under the seal of the Court of Chancery of the state of New Jersey, bearing date, at Trenton, the fifteenth day of October, in the year of our Lord one thousand eight hundred and seventy-one, to us whose names are hereunder written directed, to inquire whether C. B. of the township of , in the county of Burlington and state aforesaid, be a lunatic or not ; these are therefore to will and require you to cause to come and appear before us, twenty -four good and lawful men of the said count}^ of Burlington, each of whom is a citizen of this state, resident in the said county of Burlington, above the age of twenty-one years and under the age of sixty-five years, and who hath a freehold in lands, messuages or tenements in the said county, on Friday the eleventh day of November, instant, at ten o'clock in the forenoon of the same day, at the house of J. H. inn- keeper in the said township of , then and there, upon their 254 INQUISITION OF LUNACY. oaths and alErmations, to inquire of the lunacy of the said C. B. and of all such other matters and things as shall be given them in charge by virtue of the said commission : and thereof fail not at your peril. — Given under our hands and seals the fourth day of November, in the year of our Lord one thousand eight hundred and . To the sheriff of the county of Burlington. E. F. [l. S.J C. F. [l. s.] G. H. [l. s.] .The service of the within writ appears by the panel annexed. J. F. Sheriff. Panel annexed. Annex the names of the jurors who are summoned ; the panel should contain twenty-four names. Fees. — Drawing precept thirty cents a folio ; clerk filing do. and panel, twenty- four cents ; sheriff summoning jury, two dollars and seventy cents ; jurors' fees, twenty-five cents each. TI...FORM OP INQUISITION OF LUNACY. In Chancery of New Jeesey. In the matter of 0. B. of the township 1 of , in the county of Burlington, I Inquisition. alleged to be a lunatic. I New Jersey, Burlington county, to wit. — An inquisition taken at the house of J. H., innkeeper in the township of , county of Burlington, and state of New Jersey, on the eleventh day of November, in the year of our Lord one thousand eight hundred and , before E. F., C. F. and G. H. commissioners, by virtue of a commission, in nature of a writ de lunatico inquirendo, issuing out of and under the seal of the Court of Chancery of the state of New Jersey, bearing date, at Trenton, the fifteenth day of October, in the year of our Lord one thousand eight hundred and , to inquire (amongst other things) of the lunacy of C. B. of the township of INQUISITION OF LUNACY. 256 , in the county of Burlington aforesaid, in the said commission named, upon the oaths and solemn affirmations of good honest and lawful men of the said count}'', that is to say, upon the oath of J. W. and upon the solemn affirmatibns of (name the jurors who affirm) they having severally alleged themselves to he conscien- tiously scrupulous of taking an oath, and being solemly affirmed, who, being duly summoned and charged, upon their i:espective oath and solemn affirmations, say, that the said C. B. is, at the time of taking this inquisition, a lunatic and of unsound mind, and doth not enjoy lucid intervals, so that he is not capable of the government of himself, his messuages, lands, tenements, goods and chattels, and that he hath been in the same state of lunacy for the space of two years last past and upward ; but how or by what means the said C. B. so became a lunatic, the jurors aforesaid know not, unless by the visita- tion of God. And the same jurors, upon their respective oath and affirmations aforesaid, further say, that they do find that the said C. B. at the time of taking this inquisition, is seized of and entitled to one messuage, plantation, tract of land and premises, situate, lying and being in the township of aforesaid, bounded, &c. [describe premises shortly); and that the said messuage, plantation, tract of land and premises are of the yearly value of one hundred dollars, and also, that the said C. B. hath not alienated any lands or tene- ments during his lunacy aforesaid, to the knowledge of the said jurors. And the said jurors, upon their respective oath and affirma- tions aforesaid, further say, that the said C. B. is, at the time of taking this inquisition, also possessed of, or entitled unto goods, chattels and personal estate consisting of, &c. of the value of two hundred dollars, or thereabouts. And lastly, the jurors aforesaid, upon their respective oath and affirmations aforesaid, do further find that J. L. aged thirty years, or thereabouts, &c. are the only children and nearest heirs of the said C. B. In testimony whereof, as well the said commissioners as the jurors aforesaid, have to this inquisition set their hands and seals the day and year first above written. (Signed and sealed by commissioners and jurors.) 256 DEOEEE IN CASE OF LUNACY. Tlie commission, proceedings and inquisition should be given to the soKoitor of petitioner, to be filed. The inquisition should be found, signed and sealed by more than twelve jurors. Fees. — Drawing, &c. inquisition, thirty cents a folio ; fihng and return, twenty- four cents ; and twelve cents for each paper returned, and eight cents a folio for registering it. The commission and inquisition must be filed ten days before the party has a right to his decree. When that time has expired, draw up the following decree, and the chancellor will, on finding the inquisition regular, sign it. TII...FORM OF DECRJBB IN CASE OP LUNACY. In Chancery of New Jersey. In [the matter of C. B. of the township of ] , in the county of Burlington, alleged I Decree. to be a lunatic. Upon opening the matter to the Chancellor this day, on behalf of J. S. solicitor for and of -counsel with the petitioner, it appearing that the commission awarded in this case has been duly made and executed, and returned into this court, with an inquisition thereto annexed, taken before E. F., C. F. and G. H. commissioners in the said commission named, and bearing date the eleventh day of November, in the year of our Lord one thousand eight hundred and , by which the jurors who passed upon that inquiry have found that the said C. B. of the township of , in the county of Burlington, was at the time of taking that inquisition a lunatic and of unsound mind, and doth not enjoy lucid intervals, so that he is not capable of the gov- ernment of himself, his messuages, lauds, tenements, goods and chattels, and that he has been in the same state of lunacy for the space of two years last past and upwards, and that at the time of taking the said inquisition the said C. B. was seized of, or entitled to, real and personal estate, as is mentioned in the said inquisition — It is therefore ordered and decreed by the Chancellor, that the said proceedings be in all things confirmed, and that the clerk of this court transmit to the Orphans' Court of the county of Burlington a certified INQUISITION EETUKNED. 267 copy of all the proceedings in the case of the said 0. B. agreeably to the statute in such case made and provided. A. 0. Z. C. Dated, &c. The clerk will upon filing the decree make out a certified copy of aU the pro- ceedings under seal, and hand tliem to the solicitor, to be filed in the Orphans' Oourt. Fees. — Solicitor for drawing decree thirty-two cents a foKo, for motion eighty cents, argument four dollars ; chancellor for motion seventy-five cents, signing decree two dollars and fifty cents ; clerk for motion thirty-two cents, filing decree twelve cents, and for copy of proceedings eight cents a folio, and fifty- two cents for certificate and seal. One term fee is allowed. TIII...FORM OF RULE WHEN INQUISITION IS RETURNED NOT FINDING A LUNATIC. In matter ■ of A. B. - April 12, 1872. Upon filing the inquisition returned in this case, by which it ap- pears that the jury of inquest, summoned, charged and sworn to inquire, &c. find that the said A. B. at the time of taking said inqui- sition, was not a lunatic, but^was of sound mind, &c. — It is ordered, that the said verdict and return, and all the matters and things therein contained, do stand confirmed, according to the true tenor and mean- ing thereof, unless the petitioner, having notice thereof, shall within eight days after notice show unto this court good cause to the contrary. Entered by J. S. solicitor of the said A. B. By the court. H. S. L. Clk. If the ooiomissioners find the party not a lunatic or idiot, they should return accordingly ; and the above rule for confirmation should be entered, and a copy served on petitioner's sohoitor. 258 PETITION TO SET ABIDE INQUISITION. IX...FOB,M OF PETITION TO SET ASIDE INQUISITION. To his Honor A. 0. Z., Chancellor of New Jersey. The petition of the subscriber A. B. of the township of the comity of Somerset, respectfully showeth, that your petitioner, in the month of April, , having been deprived of his reason by the providence of God, an application was made to the Chancellor of this state, on the seventh of April of the ensuing year, for a com- mission de lunatico mquirendo, to issue out of the High Court of Chancery of this state, to inquire of the lunacy of your petitioner, which commission was duly ordered and directed to C. D., B. F. and G. H. esquires, commissioners, before whom, afterwards, to wit, on the twelfth day of April, in the year aforesaid, at the township of aforesaid, an inquest was had and taken, by which it was found, among other things, that your petitioner at the time thereof was a lunatic enjoying lucid intervals, so that he was not capable of the government of himself, his lands and tenements, goods and chattels ; and further, that your petitioner was seized and posse'ssed of con- siderable real and personal estate in said county ; that inquisition was duly returned into the said Court of Chancery, and a decree entered thereon on the day of April, in the year, &c. ; that a copy of said proceedings having been transmitted to the Orphans' Court of the said county of Somerset, I. J. esquire, was by the said Orphans' Court appointed guardian of the person and property of your petitioner, pursuant to the directions of the act of the legis- lature of the state of New Jersey in such case made and provided ; that said guardian, as your petitioner is informed, in all thing com- plied with the requirements of said act, and took upon himself the burden of said appointment ; that shortly after taking the said inqui- sition your petitioner was restored to his reason and understanding ; that he has, and still hath the management and oversight of his farm and all his affairs ; that he transacts all his own business, and also public business, as executor, administrator, &c. ; that some portion of his property, such as bonds, notes and mortgages, are in the hands and possession of his said guardian at this time. Your petitioner therefore prays, that said guardian may be discharged from any further EEFEE TO A MASTER. 259 or other duties in relation to the case of the person and property of yoar petitioner, that he be authorized and directed to restore to your petitioner the property he now has in his hands, and that your Honor will be pleased to vacate and set aside the said inquisition, and pro- ceedings thereon, and grant to him such further and other relief as in justice and equity he is entitled to. And he, as in duty bound, will ever pray, &c. J. S. Sol. and of counsel with the petitioner. Nkw Jeksey, ss. — Be it known, that on this day of , in the year, &c. before me the subscriber, one of the masters of said court, personally appeared K. L. who, being by me duly sworn, on his oath saith, that he was born and raised in the same neighborhood with the above named A. B. ; that deponent has been in company with him, has done business with him frequently for the last twelve months, and is satisfied that said A. B. is perfectly restored to his reason, and is at this time of sound and disposing mind and memory, and further saith not. K. L. Sworn and subscribed this day of , &c. before me ■M. N. Master. Up Jn filing this petition and affidavit, the court will make an order as foUows : X...FORM OF ORDER TO REFER TO A MASTER ON PETITION TO SET ASIDE INQUISITION. In Chancery of New Jersey. On the application of A. B. to set aside ) Order and vacate an inquisition of lunacy. ) This matter being opened to the court by J. S. of counsel with the petitioner, and upon reading and filing said petition — It is hereby ordered and directed, that it be referred to R. S. esquire, one of the 260 MASTER S EEPOET. masters of this court, to inquire whether the said A. B. is restored to his reason and understanding and is of sound and disposing mind and memorj', and that' he make report thereof with all convenient speed to this court. And it is further ordered, that due notice of the time and place of such inquiry be given hj the said petitioner, or his counsel, to the said guardian. A. 0. Z. C. Dated, &c. The master will appoint a time and place for hearing, upon service upon him of a copy of this order, and summon the guardian and all persons interested to appear before him at the time ; and if, upon the investigation and examina- tion, lie finds the petition sustained, will make the following report : On petition, &c. XI...FORM OF MASTEE'S REPORT ON PETITION TO SET ASIDE INQUISITION. In Chanceey of New Jersey. On the application of A. B. to set aside and vacate an inquisition of lunacy. In pursuance of an order of this court entered in this case, bearing date on the ninth day of January, m the year, &c. I have been at- tended by the solicitor of the petitioner, and by said petitioner himself, and also by I. J. esquire, the guardian of said petitioner, and, in the presence of the parties attending me, I have considered of the matters thereby referred to me, and have inquired thereof, as well by the examination of witnesses produced before me on the part and behalf of the said A. B. as by the personal examination of the said A. B. himself: and I do hereby certify, that the said A. B. is now restored to his reason and understanding, and is of sound and disposing mind and memory ; and I herewith transmit to the said court the depositions of the witnesses examined before me in the above case. All which is respectfully submitted. K. S. Master. Dated, ^c. OEDEB TO SET ASIDE INQmsiTION. 261 No rule is entered to confirm this report in practice, but the court will at once proceed to make an order of confirmation, as follows : XII...FOEM OF FINAL ORDER ON PETITION TO SET ASIDE INQUISITION. In Chanceky of New Jersey. On the application of A. B. to set ) ^ , „ aside an inquisition of lunacy, j ' ' Upon opening the matter this day to the Chancellor, by J. S. so- licitor and of counsel with said applicant, and it appearing to the court, as well by the report of E. S. esquire, the master to whom this matter was referred by an order of this court in the term of January last, as also by the testimony taken by the said master, an- nexed to and accompanying the said report, that the said A. B. is restored to his reason and understanding, and is of sound and dis- posing mind and memory — It is hereby ordered and directed, by His Honor A. 0. Z. Chancellor of New Jersey, at a Court of Chancery holden at Trenton on this day of , in the year, &c. on motion of J. S. solicitor aforesaid, that the said master's report be in all things confirmed, and that the said inquisition of lunacy, taken before C. D., E. F. and G. H. esquires, commissioners, the 12th of April, , by which, among other things, the said A. B. was found to be a lunatic, be vacated, set aside and for nothing holden. And it is further ordered and directed, that I. J. esquire, the guardian ap- pointed by the Orphans' Court of the said county of Somerset, to take the charge and care of the person and estate of the said A. B. do deliver, pay over and restore unto him the said A. B. all the estate, real and personal, by him the said guardian received, belonging to the said A. B. after deducting thereout the necessary costs, charges and commissions of the said guardian in the execution of his trust. A. 0. z., a These proceedings may be held in vacation or in term. Upon obtaining the order, get a certified copy of the proceedings, and file them in the Orphans' Court, and proceed to a settlement with the guardian. In some cases the chancellor, instead of referring the case to a master, lias directed the petitioner to be brought before him for personal examination, and has thereupon made the final order. But the usual practice is to refer the matter to a, master. 262 BILL T"OE DIVOECE. VIII. DIVORCE. The proceeding in chancery to obtain a divorce may be either by bill or petition. I^.^ORM OF BILL FOE DIVORCE. In Chancery of New Jersey. To His Honor A. 0. Z. Chancellor of the state of New Jersey. Humbly complaining, showeth unto your Honor your orator A. B. of ; in the township and county of , and state of New Jersey, that your orator was lawfully joined in the bands of matrimony to his present wife K. on the daj^ of , in the year, &c. from which time forward until the time of the filing of this bill your orator has been an inhabitant of aforesaid, and the said E. has been also an inhabitant of the same place until on or about the ■ day of , in the year, &c. when she left the residence of your orator, at aforesaid, and went to the city of New York, where your orator is informed, and believes she now is. And your orator further showeth unto your Honor, that the said R. since her said marriage with your orator, and on different days of the months April, &c. in the year, &c. and at divers other times, wickedly dis- regarding the solemnity of her vows and the sanctity of the marriage state, hath committed adultery with one 0. D. of the city of Brooklyn, in the state of New York, and also with divers persons, whose names are at present unknown to your orator. And your orator further shows unto your Honor, that, by means of the said several premises above set forth, the domestic peace and happiness of your orator has been entirely destroyed. In tender consideration whereof, and to the end that the said R. may true, full and perfect answer make to the matters and things herein charged and set forth, as fully as if the same were herein again repeated, and she interrogated thereto, and particularly that she may set forth and discover whether your orator and the said R. were not joined in wedlock as aforesaid ; BILL FOE DIVOECE. 263 and whether since her marriage with your orator she has not com- mitted adultery and with whom, and at what time and place, and under what circumstances, or how otherwise, and particularly in one or more of the months of April, &c. aforesaid, in the city of Brooklyn aforesaid, with the said 0. D. ; and that the marriage between your orator and the said R. may be dissolved, according to the statute in such case made and provided ; and that your orator may have such other and further relief in the premises as may be agreeable to equity and good conscience, may it please your Honor, the premises'' considered, to grant unto your orator the state's most gracious writ of subpoena, issuing out of and under the seal of this honorable court, to be directed to the said R. commanding her, on a certain day and under a certain pain, therein to be expressed, personally to be and appear before your Honor, in this honorable court, then and there to make true, full, and perfect answer to all and singular the premises, and to stand to, abide by and perform such order, direction and decree as to your Honor shall seem meet and according to the statute in such case made and provided. J. S. Sol. and of coimsel with complainant. State op New Jersey, ss. — Personally appeared before me the subscriber, a master in Chancery in and for said state, A. B. the complainant in the foregoing bill, and who, being by me duly sworn, saith, that his bill of complaint is not made by any collusion between him and the defendant in the said bill for the purpose of dissolving their marriage, but in truth and good faith, for the causes set forth in the bill of complaint. A. B. Sworn and subscribed, &c. / When the proceeding is by bill, the process and subsequent proceedings are all in the ordinary form, and the fees the same as in other suits in chancery. Eule 158 requires that the name, or if not known, the description be given of the person with whom the alleged adultery was committed. 264 PETITION I'OE DtVOECE FOE DESEETIOK. II...PORM OF PETITION FOR DIVORCE FOR DESERTION. To His Honor A. 0. Z. Chancellor of the state of New Jersey. In Chancery of New Jersey. The petition of A. D. of the county of , in the state of New Jersey, respectfully showeth that your petitioner was married on the day of , in the year, &c. at , in the county of , in the state of New Jersey, to C D. her present husband, since which time she has resided, and still resides, at , in the county of aforesaid. And your petitioner further showeth, that her said hus- band lived with her, and supported her for about years after they were married, and until the month of , in the year, &c. when he deserted her, and left the state of New Jersey, as she has understood and believes ; but he has since returned to the state, and now resides at , in the county of . And your petitioner further showeth, that for more than five years last past her said hus- band has deserted her, and his said desertion for all that time has been wilful, continued and obstinate ; and duiing all that time her said husband hath wholly neglected to make any provision for her support. And your petitioner further showeth, that she has children by her said husband (state children's names and ages). And your petitioner further showeth, that her maiden name was A. C. and that she has no means of support except from her own exertions, and that the parents of her said husband have taken her said children, and now support them. Your petitioner therefore respectfully prays, that she may be divorced from her said husband, and that he may be compelled, by the order and decree of this honorabbe court, to provide for and support her said children, and that your petitioner may have such further and other relief as may be equitable and just. And your petitioner will ever pray, &c. A. B. J. S. Sol. and of counsel with petitioner. ANSWER TO BILL FOE DIVOECE. 265 New Jeesly, ss. — A. B. the petitioner in the foregoing petition named, being duly sworn, on her oath saith, that her complaint is not made by any collusion between her and the defendant for the purpose of dissolving their marriage, but in truth and good faith for the cause set forth in the said petition. Sworn and subscribed, &c. A. B. "Where the proceedings are by petition, the process to be used is a citatum; the defendant has only three days after the return day to file his answer, and if the defendant be non-resident, only four weeks' publication of the notice to appear is necessary. III...FORM OF CITATION IN DIVORCE. New Jersey, to wit. — The state of New Jersey to C. D. greeting : You are hereby cited to be and appear before our (* *| Chancellor in our Court of Chancery, to be held at Tren- ( ' ' ) ton on the day of next, to answer to the peti- ~"'''~' tion of A. B. exhibited against you, and hereof fail not. Witness, A. 0. Z. our Chancellor, at Trenton, the day of , in the year, &c. H. s. L. cm. J. S. Sol. Serve, with the citation, a certified copy of the petition on the defendant ; the service must be twenty entire days before the return day. The writ must be tested on the day it issues. IV...FORM: OF ANSWER TO BILL FOR DIYORCE. The answer of R. B. to the bill of complaint of A. B. complainant. This defendant, now and at all times hereafter reserving to herself all manner of benefit and advantage of exception to the many im- perfections, uncertainties and defects in the complainant's said bill of complaint contained, for answer thereto, or unto so much and such 18 266 ANSWER TO BILL FOE DIVOECE. parts thereof as she is advised is material and necessary for her to make answer unto, she answers and says, that it is true, as stated in said bill of complaint, that she was lawfully married to the said com- plainant on the day of , in the year, &tc. ; and that this defendant and the said complainant continued to reside at , in New Jersey, from that timej or shortly after, until the day of , in the year of our Lord, &c. And this defendant, further answering, admits it to be true, that, at the date last mentioned, she left the residence of said complainant, and went to reside in the city of New York ; that she was compelled to leave the said residence of her husband, by reason of his cruel conduct towards her ; that for about the term of four months, the complainant behaved himself as became a husband, when, from his intemperate habits, or the associ- ates with whom he consorted, or both causes combined, he began to manifest a very jealous and suspicious deportment towards this de- fendant, and would often, in the grossest terms of abuse, accuse this defendant of infidelity to her marriage vows, which accusations this defendant avers to be utterly without foundation in truth or justice. And this defendant, further answering, saith, that the said complain- ant continued this cruel course of conduct towards her repeatedly and from time to time, until the sai^' eighth day of November, before mentioned, when she, perceiving no hope of any change in his treat- ment, and being very unhappy as an inmate with a man whose only deportment towards her was that of cruel suspicion and disgraceful crimination, left his residence, with his full understanding and knowl- edge ; that, after leaving the residence of the said complainant, she endeavored again to pursue the business of store-keeping or mer- chandise, in which she was engaged when she married the complain- ant, but soon found that her character had been so much traduced by her said husband that she could not make a living by the business, and she, in the month of , it the year, &c. relinquished it, and went to live with her brother, under whose roof and protection she still continues to reside. And this defendant, further answering, denies that she ever did on different days, or on any day or time in the months of , &;c. in the year, &c. or in either of those months, or any other month or time during her said intermarriage, commit PETITION I'OE ALIMONY. 26Y" adultery with the said 0. D. in the said bill mentioned, or with any person or persons whatever, either in the city of Brooklyn, or else- where, and that the charge of adultery, made in the said complain- ant's bill against her is wholly untrue, and a most unfounded and cruel imputation, and, on the contrary thereof, this defendant avers the truth to be, that ehe always since her intermarriage with the said complainant faithfully regarded towards him her marriage vows, and was true and faithful to his bed and her obligations as his lawful wife. All which matters and things this defendant is ready to aver, main- tain and prove, as this honorable court shall direct, and humbly prays to be hence dismissed, with her reasonable costs and charges in this behalf most wrongfully sustained. R. B. E. F. Solicitor and of counsel with defendant. Tho answer should not be sworn to. Whether the wife be complainant or defendant, she will, upon showing a proper case, be allowed a reasonable support and means to prosecute or defend her suit during its pendency, provided her husband has the ability, and, if de- fendant, she has denied the complainant's charges in her answer. T...PORM OP PETITION FOR ALIMONY PENDENTE LITE. To His Honor A. 0. Z., Chancellor of the state of New Jersey. The petition of A. B. wife of C. B. humbly showeth, that her husband, the said C. B. hath recently filed a bill against her for divorce for the cause of adultery ; that she hath filed an answer to the said bill, and therein has solemnly, under oath, denied each and every one of the charges contained in said bUl; that said C. B. turned your petitioner out of his house some months since ; that he does not provide for her such a support as she thinks herself entitled to from a man of his property (her present support being dol- lars per week,) 268 OEDEE FOE ALIMONT. That your petitioner is without an}' means of support, except as above, and is not in good health ; she therefore prays your Honor will direct said C. B. to make )-our petitioner a proper allowance until the final termination of this suit ; and also, that you will direct the said C. B. by the order of the Court of Chancery, to pay forthwith a proper sum for counsel fees to her counsel, in defending said suit until its termination. And your petitioner will ever pray, &c. A. B. Dated, &c. New Jersey, ss. — A. B. being duly sworn, on her oath saith, that the matters and things set forth in the above petition are true, to the best of her knowledge and belief. Sworn, &c. A. B. TI...FORM OF ORDER FOR ALIMONT, &c. In Chanceet of New Jersey. Between ] C. B. Complainant, I On lill for divorce, and applica- and j tion for alimony, &c. A..B. Defendant. ! Upon opening the matter to the court, on the application above named, by J. D. esquire, of counsel with A. B. the above defendant, in the term of this court, on due notice, admitted by J. S. the solicitor of the complainant, on the reading the said bill and answer, and on reading and filing the petition of said A. B. and the affidavits of , &c. — It is, on this day of , in the year, &c. by A. 0. Z., Chancellor of the state of New Jersey, ordered and adjudged, that the complainant C B. pay to the said A. B. the sum of dollars per week, at the termination of each and every week, from the date of this order, for her maintenance and support, until the further order of this court in the premises ; and also, that the said C. B. pay to the said J. D. the solicitor and counsel of the said A. OEDEE FOE PEOOFS. 269 B. the sum of dollars, as counsel fees for defending the suit above mentioned, together with the costs of this order, to be taxed by the clerk of the Court of Chancery; and that all further proceed- ings in said suit be stayed until the said counsel fees and taxed costs are paid. A. 0. Z. C. If the defendant answers, the complainant proceeds to take his testsmonj, as in other litigated cases. K he does not answer, after the time limited in the process or order of publication has expired, get an order for proofs, and take your testimony ex parte. VII...PORM OP ORDER FOR PROOFS. Ix Chancery of Xew Jersey. Between C. B. Complainant, 'j a^jj^ i On petition for divorce. A. B. Defendant. ! Upon opening the matter to the coart, on behalf of J. S. solicitor and of counsel with the complainant, it appearing to the Chancellor that the order made in this cause, on the fourth day of AprU last past, directing the defendant to appear, plead, answer or demur to the complainant's bill on or before the second Tuesday of July then next, has been duly published, as in and by the said order was directed, and that the said defendant hath not appeared, pleaded, answered or demurred to the same — ^It is therefore, on this day of July, in the year, &:c. ordered, that the complainant proceed to take depositions and other evidence to substantiate and prove the allegations in her said bill, and to bring on the hearing of the cause ex parte. A. O. Z. C. Where the cause is proceeding upon bill and answer, and either party has entered the usual rule to close testimony in fifty days, if the period expires before you have been able to get the testimony of your witnesses, and there 270 OEDEE EXTENDING TIME. has been no laches, show the facts by affidavit; and if a reasonable case -is made, as, if the witnesses are material and can be had in a reasonable time, the court will extend the time for taking testimony. This practice in ordinary cases is superseded by Rules 64 to 72 inclusive. VIII...PORM: OF ORDER EXTENDING TIME FOR TAKING TESTIMONY- In Chanceey of New Jersey. Between C. B. Complainant, and i Order, &c. A. D. Defendant. Upon opening the matter this day to the Chancellor, by J. D. solicitor and of counsel with the defendant, and upon reading the afHdavit of A. B. the defendant, whereby it appears that the exami- nation of certain witnesses, alleged to be necessary and material on the part of the said defendant in said cause, could not be had and taken within the time limited by the rule to close the examination of witnesses in the above cause, on the day of last, and praying that the same may be enlarged and further extended — It is thereupon, on this day of , in the year, &c. ordered, that forty days from the date hereof be allowed for the examination of witnesses in said cause. A. 0. Z. C. Dated, &c. "When the testimony is closed, set the cause down for hearing. The rule for hearing is entered, and the cause put on the paper, as well where the proceed- ings are ex parte as where there is a defence. DECEEE FOE DIVORCE. 211 IX...FORM OF DECREE FOR DIVORCE FOR ADULTERY, ON BILL. In Chanceey of New Jeesky. Of the term of July, in the year of our Lord one thousand eight hundred and . Between A. B. Complainant, and ). Decree. C. B. Defendant. This cause coming on to be heard at the term of July, in the year aforesaid, in the presence of counsel learned in the law, for the com- plainant, no one appearing for the defendant, although this cause had been regularly set down for hearing on the first day of the present term, and due notice thereof given to E. F. esquire, the defendant's solicitor, as appears by affidavit to the satisfaction of the court, and upon reading the bill of the complainant, and the answer of the defendant thereto, together with the depositions taken in the cause, whereby it appears satisfactorily to the Chancellor that the marriage between the said complainant A. B. and the said defendant C. B. was solemnized and took place within this state, and that the complainant was an actual resident in this state at the time of the injury complained of, and at the time of exhibiting his bill of com- plaint, and that the defendant has been guilty of the crime of adultery, charged against her in the said bill of complaint — It is therefore ordered, adjudged and decreed, by A. 0. Z. Chancellor of the state of New Jersey, and the said Chancellor, by the power and authority of this court and the act of the legislature in such case made and provided, doth order, adjudge and decree, that the complainant A. B. and the defendant C. B. be divorced from the bond of matrimony for the cause aforesaid, and the marriage between the said complain- ant and the said defendant is hereby dissolved accordingly, and the said parties, and each of them, are and is freed and discharged from the obligations thereof A. o. z. a Costs are not usually given where the decree is against the wife. 272 DECREE OF DtVOECE FOE DESEETION. X...FORM OP DECREE OF DIVORCE FOR DESERTION, ON PETITION. A-t a special term of the Court of Chancery, held at on the day of , in the year of our Lord one thousand eight hundred and . Between A. B. Petitioner, and C. B. Defendant. ► Decree. This cause coming on to be heard at , on the day of , in the year of our Lord, &c. at a special term of the Court of Chancery of the state of New Jersey, in the presence of counsel learned io the law for the petitioner, -no one appearing for the defendant, and it appearing to the court that the complainant, on the day of , in the year of our Lord, &c. exhibited her petition of complaint in this cause against the defendant her husband, to obtain a divorce from the bond of matrimony, for wilful, continued and obstinate desertion for the term of five years and upwards ; and by her oath, annexed to her said petition of complaint, did depose and swear, that her complaint was not made by any collusion between her and the defendant for the purpose of dissolving the marriage between them, but in truth and good faith for the cause set forth in her petition. And it further appearing to the court that the said C. B. who is an absent defendant, did not appear, plead, answer or demur to the said petition within the time limited by the order of this court heretofore made for that purpose ; and that on the day of last, by another order of this court, it was ordered that the petitioner produce documents, depositions, exhibits or other evidence to substantiate and prove the allegations in her petition — Whereupon, and on reading the exhibits in this cause and the depositions taken pursuant to the said last mentioned order, whereby it appears satis- factorily to this court, that the marriage between A. B. the petitioner, and 0. B. the defendant, was solemnized and took place within this state, and that the petitioner was an actual resident in this state at the time of the desertion complained of, and at the time of her PETITION FOE THE ASSIGNMENT OF COUNSEL. 2Y3 exhibiting her petition, and that the defendant has been guUty of wilful, continued and obstinate desertion of the petitioner, his wife, for the term of five years before the exhibiting of the said petition — It is therefore ordered, adjudged and decreed, by A. 0. Z. Chancellor of the state of New Jersey, and the said Chancellor, by the power and authority of this court and the act of the legislature in such case made and provided, doth order, adjudge and decree, that the petitioner A. B. and the defendant C. B. be divorced from the bond of matri- mony for the cause aforesaid ; and the marriage between the said petitioner and the said defendant is hereby dissolved accordingly ; and the said parties, and each of them, are and is freed and dis- charged from the obligations thereof And it is further ordered, adjudged and decreed, that the defendant pay to the petitioner her costs of this suit, to be taxed, and that the petitioner have execution therefor according to law and the course of this court, and that she be at liberty to apply to this court for any further order which may be necessary and proper to obtain payment of the said costs. A poor person, making affidavit tliat he or she is not worth one hundred dollars clear estate, may have counsel assigned by the court to conduct the suit, and the services all rendered gratuitously. The following is the XI...FORM OF PETITION FOE, THE ASSIGNMENT OF COUNSEL, IN DITORCE. To His Honor A. 0. Z. Chancellor of the state of New Jersey. The petition of A. B. of the township of , in the county of Burlington, and state of New Jersey, respectfully showeth, that your petitioner is a poor person, and that she hath cause of suit, in order to obtain a divorce from her husband J. B. under the act entitled, ''An act concerning divorces." Your petitioner therefore prays, that your Honor will be pleased to assign, at your Honor's discretion, to your petitioner, a solicitor and counsel, learned in the law, to prosecute the said cause. And your petitioner will ever pray, &c. A. B. Dated, 8th March, 1872. 274 OEDEE ASSIGNING COUNSEL. State of New Jersey, ss. — A. B. the above named petitioner, being duly sworn according to law, upon her oath saith, that she is not worth one hundred dollars clear estate. A. B. Sworn and subscribed, &c. On petition for divorce. XII...FORM OP ORDER ASSIGNING COUNSEL. In Chancery of New Jersey. Between A. B. Complainant, and J. B. Defendant. Upon reading and filing the petition of A. B. the above named petitioner, and the afiidavit thereto annexed — It is ordered, that J. S. esquire, one of the solicitors of this court, be, and he is hereby- assigned as the solicitor and counsel of the said A. B. to prosecute the above cause. A. 0. z., a Dated, April, &c. BILL FOE PAETITION. 275 IX. PARTITION I...FORM OF BILL FOR PARTITION. In Chanceey of New Jersey. Retween John Doe, Complainant, and Mary Doe (widow), John Nokes, & ux. & al. Defendants. Bill for partition, &c. To his Honor A. 0. Z. Chancellor of the state of New Jersey : Humbly complaining, showeth unto your Honor, your orator John Doe, of the township of , in the county of , and state of New Jersey ; that on or about the day of , in the year, &c. Richard Stokes and his wife, being seized in fee of a tract of land and premises hereinafter particularly described, by deed of bargain and sale, duly made and executed by them under their respective hands and seals, bearing date on or about the day and year aforesaid, sold and conveyed the same to your orator and his brother Andrew Doe, since deceased, and to their heirs and assigns forever; that the said tract of land is described in said deeds as follows : viz. (here describe premises as in deed) as by reference to said deed, now in the possession of your orator, and ready to be produced -and proven as this honorable court shall direct, will more fully appear. And your orator further shows, that the said tract of land and premises were conveyed to your orator and the said Andrew Doe without any restrictive, exclusive or explanatory words contained in said deed, whereby your orator and the said Andrew Doe, under the then existing laws of the state, took and held the said lands as joint tenants; that your orator and the said Andrew Doe, in his lifetime and until his death, were seized in fee-simple in possession of the said tract of land as joint tenants in undivided moieties or half parts. 276 BILL FOE PARTITION. And your orator further shows, that at the time of the said con- veyance, it was the intention of the parties thereto that the said tract of land should be conveyed to your orator and the said Andrew Doe, as tenants in common, and not as joint tenants, and that the consideration money for the same was paid jointly and equally by them. And your orator further shows, that on or about the — day of , in the year, &c. the said Andrew Doe departed this life intes- tate, leaving his wife Mary Doe, and his children Mary M. Doe, John Doe and Henry Doe him surviving; that at the time of his death, his children above named were minors under the age of twenty-one years ; that Mary M. Doe and John Doe have since arrived at lawful age, as your orator has been informed and believes to be true, and that the said Mary M. Doe hath, since the death of her father, intermarried with one John Nokes, of the township of , in the county of , and state aforesaid, and that the said Henry Doe is still an infant under the age of twenty-one years. And you orator further shows, that since the death of the said Andrew Doe, your orator, and the said Mary Doe, the widow, Mary M. Nokes (I'ate Mary M. Doe), John Doe and Henry Doe, children of Andrew Doe, deceased, have been and now are desirous that a fair partition and division of the said tract of land and premises should be made, and that one moiety or half part thereof should be divided, and alloted to your orator, his heirs and assigns, in severalty, and that the other moiety or half part thereof should be divided and alloted to the said Mary M. Nokes (late Mary M. Doe), John Doe and Henry Doe, their heirs and assigns, in severalty, subject to the right of dower or other rights of their mother Mary Doe, the widow of the said Andrew Doe, deceased, in and to their moiety or half part; and for that purpose your orator hath frequently and in a friendly manner applied to the widow and children, above named, of the said Andrew Doe, deceased, to have such partition and division made of the said tract of land; but inasmuch as Henry Doe, one of the children and heirs of the said Andrew Doe, deceased, by reason of his minority, cannot convey to your orator, and inasmuch as, according to the strict rules of the common law, your orator on the BILL FOE PAETITIOW. 27Y death of the said Andrew Doe, took the whole estate in said premises, as surviving joint tenant, the counsel of the widow and children of the said Andrew Doe, deceased, have suggested doubts whether such partition and division could safely be made, except by the aid and intervention of this honorable court — In tender consideration whereof, and forasmuch as your orator cannot be fully relieved in the premises but by the aid of a court of equity, where matters of this nature are properly cognizable and relievable — To the end, therefore, that the said Mary Doe (widow), John Nokes, and Mary M. his wife (late Mary M. Doe), John Doe and Henry Doe, lilay, upon their several and respective corporal oaths, true, fuU and perfect answers make to all and singular the said premises, as fully and particularly as if the same were here again repeated, and they thereunto particularly interrogated; and that a partition and division of the tract of land and premises above men- tioned and described, with all and singular the appurtenances, may be made into two equal parts or shares ; and that a commission of partition may issue out of and under the seal of this honorable court, directed to proper persons, as commissioners for the purpose afore- said, and one moiety or half part of the said land and premises may be allotted to your orator, his heirs and assigns for ever, in severalty; and that the said Mary Doe (widow), John Nokes and Mary M. his wife (late Mary M. Doe), John Doe and Henry Doe, may join in all proper deeds and acts for conveying' the said one moiety or half part thereof to your orator as aforesaid, your orator being ready and willing to join in all proper acts for making and effecting such partition, or that your Honor will make such other order or decree in the matter aforesaid as to your Honor shall seem meet, and the circumstances of this case shall require, and shall be agreeable to equity and good conscience. May it please your Honor the premises considered, to grant unto your orator a writ or writs of subpoena, issuing out of and under the seal of this honorable court, to be directed to the said Mary Doe (widow), John Nokes and Mary M. his wife, John Doe and Henry Doe, thereby commanding them, and each of them, on a certain day, and under a certain penalty, therein to be inserted, personally to be 278 ANSWEE m PARTITION. ~ ■ ^: ~ and appear before your Honor, in this honorable court, then and there to answer all and singular the premises, and to stand to and abide such order and decree therein, as to your Honor shall seem meet, and shall be agreeable to equity and good conscience. And your orator, as in duty bound, will ever pray, &c. S. G. P. Sol. for and of coimsel wilh complainant. The infant defendant, unless he appUes for the appointment of a guardian (see forms, ante page, 219.) must he proceeded against as in other cases. II...rORM OP ANSWER IN PARTITION. In Chanoehy of New Jersey. Between John Doe, Complainant, and Mary Doe (widow), John Nokes, & ux. & al. Defendants. On bill for partition, &c. Answer. The joint and several answer of Mary Doe, John Nokes and Mary M. his wife, and John Doe, defendants in the bill of complaint of John Doe, complainant. These defendants, now and at all times, hereafter saving and reserving to themselves all and all manner of benefit and advantage of exception that can and may be had and taken to the many errors, uncertainties, insufSciencies and other imperfections in the said com- plainant's bill of complaint contained, for answer thereunto, or so much thereof as these defendants are advised is in anywise material or necessary for them to make answer unto, the said Mary Doe (widow), John Nokes and Mary M. his wife, and John Doe, severally answer and say, that they have been informed, and believe it to be true, that on or about the day of , in the year, &c. one Eichard Stokes and his wife did, by deed of bargain and sale, duly made and executed by them under their respective hands and seals, sell and convey unto the said complainant, and unto his brother ANSWER IN PARTITION. 279 Andrew Doe, the hushand of Mary Doe. one of these defendants and the father of the other defendants, and to their heirs and assigns forever, the said tract of land and premises set forth and particularly described in the complainant's said bill of complaint. And these defendants, in further answering as aforesaid, admit it to be true, that the said tract of land and premises were conveyed to the said complainant and the said Andrew Doe without any restrictive, exclusive or explanatory words contained in said deed, whereby the said complainant and the said Andrew Doe, under the then existing laws of this state, took and held the said lands as joint tenants, and that the said complainant, and the said Andrew Doe, in his lifetime and untU. the time of his death, were seized in fee-simple in possession of the said tract of land, as joint tenants in undivided moieties or half parts, and that at the time of the said conveyance, it was the intention of the parties thereto that the said tract of land should be conveyed to the said complainant and the said Andrew Doe, as tenants in common, and not as joint tenants, and that the considera- tion money was paid jointly and equally by them. And these defendants, in further answering, say, that the said Andrew Doe, on or about the day of , in the year, &c. died intestate, leaving these defendants, his widow and children, him surviving, as in the complainant's said bill of complaint set forth. And these defendants, in further answering, say, that the said Mary M. Doe. after the decease of her father, intermarried with John Nokes, now one of the defendants, as is stated in the complainant's bill ; and that Henry Doe, one of the children of the said Andrew Doe, deceased, is an infant under the age of twenty-one years, and that Mary M. and John Doe, the other children, are of the age of twenty-one years and upwards. And these defendants, in further answering, say, that they, as well as the said complainant, have been, and are desirous that a fair partition and division of the said tract of land and premises should be made, as is set forth in the complainant's said bill of complaint, and for this purpose these defendants join in the prayer of the said complainant, that a commission of partition may issue out of and under the seal of this honorable court, directed to proper persons, as 280 ANS"SVEE IN PARTITION. commissioners, to make partition of the said lands and premises, under the control and direction of this honorable court, and according to the rules of law and equity regulating cases of this nature. And these defendants deny that there is any other matter, cause or thing, in the complainant's bill of complaint contained, material or necessary for these defendants to make further answer unto, and not herein and hereby well and sufBciently answered, avoided, traversed or denied,' is true, to the knowledge or belief of these defendants. All which matters and things these defendants are ready to main- tain, aver and prove, as this honorable court shall direct, &c. J. E. S. Sol. for and of counsel with defendants New Jersey, ss. — Mary Doe, John Nokes and Mary M. his wife, and John Doe, the defendants named in the foregoing answer, being duly sworn according to law, on their oaths depose and say, that the acts, matters and things, set forth and contained in the foregoing answer, so far as they relate to their own acts and deeds, are true, and so far as they relate to the acts and deeds of other persons, they believe them to be true. MARY DOE, JOHN NOKES, MAEY M. NOKES, JOHN DOE. Sworn and subscribed, the day of , A. D. , before me, S. R. H. Master. The guardian of the infant defendant will file such answer as he may be advised. The general answer, for form of which see ante page 155 will, in ordinary cases, he sufficient. If there are questions in controversy in the cause, the parties will proceed, as in other cases, to take testimony. And in that ease the complainant should put in a repHcation. But where, as in jthis case, the facts charged in the biU are admitted, the chancellor will proceed to appoint such commissioners as he may deem proper, unless the parties file a written consent for the appointment of commissioners selected by themselves. BILL FOE PARTITION. 281 Another form of Bill in a more complicated case : III...BILL FOR PARTITION. In Chancery of New Jersey. To the Honorable A. 0. Z., Chancellor of the state of New Jersey. Humbly complaining, show unto your Honor your orator and oratrix, "W. H.. of the township of Hamilton, in the county of Mercer, and state of New Jersey, and E. M. his wife, (late E. M. E.) that "W. C. R., late of the township of Hamilton aforesaid, deceased, the father of your oratrix, was in his lifetime and at the time of his death, seized and possessed in fee simple of a certain farm or tract of land, situate in the township of Hamilton, in the county of Mer- cer aforesaid, bounded and described as follows, to wit : [here insert description'], and being so seized and possessed thereof, he, the said W. C. E., on or about the twenty-ninth day of March, in the year of our Lord one thousand eight hundred and sixty , died intestate, leaving his wife E. F. E. him surviving, and also leaving A. R. E., E. M. E., (your oratrix) H. E. R., M. E. R., W. S. R., M. E., L. E. E., F. W. E., and A. H. E., his only children and heirs-at-law, and that upon the death of the said "W. C. E. the said farm and premises descended to his said children, as tenants in common in fee simple, subject to the right of dower of the said E. F. E. (the widow of the said W. C. E.) in the same. And your orator and oratrix further show unto your Honor, that after the death of the said "W. C. E., and on or about the twentieth day of June, in the year of our Lord one thousand eight hundred and sixty , your orator and oratrix (then B. M. E.) intermarried together, and that your oratrix remained upon the said premises with her mother and family until the month of March, eighteen hundred and sixty . And your orator and oratrix further show unto your Honor, that the said H. B. R., M. E. R., W. S. E., M. R., L. B. R., F. W. R., and A. H. R., are infants under the age of twenty-one years, and that they all reside with their mother, the said 'E. F. R., in part of the dwelling-house upon the said farm. 19 282 BILL FOR PAETITION. And your orator and oratrix further show unto your Honor, that the defendant, A. R. R., is in the possession of the whole of the said farm and premises, (excepting that part of the dwelling-house occupied by the said E. F. R. and her other childrea as aforesaid, ) and that the said A. R. R. claims to be entitled to the exclusive possession and enjoyment of the said premises, under and by virtue of a pretended lease from J. H. R., the administrator of the personal estate of the said W. C. R., deceased. And your orator and oratrix further show unto your Honor, that in and by the said pretended lease made between the said J, H. R., administrator, &c., of "W. 0. R., deceased, on the one part, and the said A. R. R., of the other part, the said J. H. R. pretended to demise and lease the said premises to the said A. R. R. for the term of one year, commencing on the first day of April, A. D. eighteen hundred and sixty , at the yearly rent of four hundred dollars. And your orator and oratrix further show, that in and by the said pretended lease, it was, among other things, provided that the said A. R. R. should pay the tax on said premises, and also should build, or cause to be built, a wagon or carriage-house upon the said premises during the summer or fall of the present year, the estate finding the materials and paying the workmanship, and that the said A. R. R. is now commencing to procure materials for the erection of the said carriage-house, and threatens to expend the whole, or a large part of .the rent reserved by the said pretended lease in the erection and construction thereof, insisting that, by the terms of said pretended lease, he has right and authority so to do, and to offset the costs of said building against the rent of the said premises, or against any claim for the use and occupation thereof And your orator and oratrix further show unto your Honor, that your oratrix is seized of and entitled to the one equal undivided ninth part of the said premises, subject to the right of dower of the said E. F. R. in the same, and that the said A. R. R., H. E. R., M. E. R., W. S. R., M. R., L. E. R., F. W. R. and A. H. R. are each severally seized of and entitled to one equal ninth part of the said premises, subject to the right of dower of the said E. P. R. therein, as afore- said ; and that L., the wife of the said A. R. R., claims an inchoate bIlL J'ott tASTtTioN. 283 right of dower in that one ninth part of the said premises to which the said A. R. R. is entitled as aforesaid. And your orator and oratrix further show unto your Honor, that your oratrix is entitled to receive from the said A. R. R. one equal ninth part of such rent or compensation as may be due or become due from him for the use and occupation of the said farm, or to the one equal ninth part of the rents, issues, and profits thereof, while in the possession and occupation of the said A. R. R. And your orator and oratrix further show, that the erection of a wagon or carriage-house upon the said premises by the said A. R. R., if done at the expense of the estate of the said W. C. R., or at the expense of the parties interested in said premises, would deprive your orator and oratrix, and the infant children of the said W. 0. R., deceased, of all the rents and profits of the said farm for the current year, without any corresponding benefit received therefor, as the value of said premises, if sold at public sale, would be but little if at all increased by the erection of the said building. And your orator and oratrix further show, that the said A. R. R. is considerably in debt, and possessed of but little personal, and no real, estate except his share of the said farm. And your orator and oratrix further show unto your Honor, that the said J. H. R. had no authority whatever, either as administrator of the said W. C. R. or otherwise, to lease or demise the said premises, and that he is not entitled, as such administrator, or in any other capacity, to receive the rents, issues, and profits thereof, and that the said lease herein before mentioned is void as agamst your orator and oratrix and the other heirs of the said W. 0. R. deceased. And your orator and oratrix further show unto your Honor, that they are desirous that a partition and division of the said tract of land and premises should be made among your orators and the several parties entitled thereto, according to their several and respective shares, estates, and interests therein, or, in case (as your orators believe and aver the fact to be) that the said tract of land and premises cannot be divided among the owners thereof without great prejudice to their interests, then that the same may be sold, and the proceeds thereof divided among your orators and the parties 284 BILL FOE PAETITION. entitled thereto, as aforesaid, according to their respective rights and interests. But your orator and oratrix are advised that no valid or eifectual partition, division, or sale of the said premises can be effected with- out the aid and interposition of some court of competent jurisdic- tion, and that this honorable court has full and complete jurisdiction in the premises. To the end, therefore, that the said A. R. E. and L. his wife, J. H. R., E. F. R., H. E. R., M. E. R., W. S. R., M. R., L. E. R., F. W. R., and A. H. R. may, upon their several and respective corporal oaths and afBrmations, full, true, direct, and perfect answer make to all and singular the charges and matters aforesaid, as fully and particularly as if the same were here again repeated, and they there- unto particularly interrogated, and that a fair partition and division of the said lot of land and premises, according to the course and practice of this court, if the same may be practicable and consistent with the rights of all the parties interested therein, may be made among your oratrix and other persons entitled to a share of the said premises, according to their respective rights and interests therein ; and in case such partition and division in fact of the said premises shall be found to be impracticable, or if it should appear that the same cannot be made without great prejudice to the owners of the said premises, then that the said tract of land and premises may be decreed by this honorable court to be sold, and the proceeds thereof divided among your oratrix and the several parties interested therein, according to their respective rights, shares, and interests ; and that, in the mean time, one or more proper person or persons may be appointed to receive the rents, issues, and profits of the said farm and premises, for the benefit of our oratrix and all other persons interested therein, and that such rents and profits may be paid and divided among your orator and oratrix, and all other parties entitled thereto, according to their respective shares and interests in the same ; and that an account may be taken of the rents, issues and profits of the said premises while in the possession and occupation of the said A. R. R., or that the sum of four hundred dollars, specified in said lease, may be decreed to be the amount of said rents and profits, BILL FOR PARTITION. 286 and that the same may be paid to such person or persons as may be appointed by this honorable court as aforesaid to receive the same ; and in case the said A. E. R. shall not pay the said rents, issues, and profits, according to the order and decree of this court, then that the same may be deducted from his share and portion of the proceeds of the sale of the said premises, for the benefit of your orator and oratrix, and all other persons interested therein ; and that the said pretended lease now in the possession of the said J. H. R. or of the said A. R. R., may be decreed to be null and void, and that the said A. R. R. may be lestrained from paying the rent reserved by the said lease, or the rents, issues, and profits of the said premises, to the said J. H. R., or to any other person or persons whatever, except by the order of this honorable court; and that he maybe further restrained from erecting a wagon or carriage-house upon the said premises, or procuring materials therefor at the expense of the estate, or of the heirs of the said W. C. R., deceased ; and that your orator and oratrix may have such further and other relief as the nature and circumstances of the case may require and as to your Honor shall seem meet and proper, together with the costs and charges of your orator and oratrix in this behalf sustained. May it please your Honor, to grant unto your orator and oratrix a writ of injunction, issuing out of and under the seal of this honorable court, to be directed to the said A. R. R., enjoining and restraining him from paying the rent reserved by the said pretended lease, or the rents, issues, and profits of the said farm and premises, or any part thereof, to the said J. H. R., or to any other person or persons, except by the order and decree of this honorable court, and also restraining him from erecting a wagon or carriage house upon the said premises, oi; procuring materials therefor pursuant to the terms of said pretended lease, or otherwise at the expense of the estate, or of the heirs of the said W. 0. R., deceased; and also the writ of sub- poena of the state of New Jersey, to be directed to the said A. R. R., and L. his wife, J. H. R., B. F. R., H. B. R., M. B. R., W. S. R., M. R., L. B. R., P. "W". R. and A. H. R., commanding them, and each of them, at a certain day, and under a certain penalty therein to be expressed, personally to be and appear before j'our Honor in 286 OEDEE FOE INJUNCTION. this honorable court, then and there to answer the premises, and to stand and abide and perform such decree therein as to your Honor shall seem meet. And your orator and oratrix will ever pray, &c. 0. S. G., Solicitor and of counsel with cornpUmumt. State of New Jersey, ss. — "W. H., of the township of Hamil- ton, in the county of Mercer, and state of New Jersey, one of the complainants in the above bill, being duly sworn according to law, upon his oath saith, that the matters and things . set forth in the fore- going bill are true, and that the said A. K. E. has, to the personal knowledge of this deponent, within a few days last past, commenced procuring materials and lumber for the building of a wagon or carriage- house upon the premises mentioned in said bUl, and that said A. E. E. claims to be entitled to build the same at the expense of the estate of W. 0. E., deceased, or at the expense of the heirs of the said "W. C. E., deceased, pursuant to the terms of a pretended lease of the said premises mentioned in said bill. W. H. Sworn, &c. In Chancery of New Jersey. Between W. H., and E. W. his wife. compl'ts, and A. E. E. and wife, and others, def'ts. ► Order for injunction. Upon reading the bill of complaint in this cause, and the affidavit thereunto annexed, and on motion of 0. S. G-., solicitor and of coun- sel with the complainant — It is, on this day of , A. D. eighteen hundred and sixty , ordered, that upon filing the said bill and affidavit, an injunction do issue, according to the prayer of said bill. A. 0, z., a ANSWER OF INFANTS. 287 ORDER APPOINTING aUARDIAN. {Sere insert title of came.) Upon opening the matter this day to the court by 0. S. G-., of counsel with the complainants, it appearing that the defendants, H. B. R., M. E. R., W. S. R., M. R., L. E. R., F. W. R., and A. H. R., infants under the age of twenty-one years, have been served with process to appear and answer the complainant's bill, and that they have neglected to apply for the appointment of a guardian to defend this suit, and it appearing by afSdavit that the said H. E. R., M. E. R., and "W. S. R. are infants over the age of fourteen years, and that due notice has been given to .them of this application, and that due notice of the same has been given to E. F. R., the mother of the said M. R., L. E. R., F. "W. R., and A. H. R., who are infants under the age of fourteen years, and have no father and no guardian appointed by the Orphans Court ; It is thereupon, on this twenty- fifth day of November, A. D. eighteen hundred and sixty , on motion on behalf of the complainants, ordered, that H. S. L., clerk of this court, be appointed and assigned the guardian of the said infant defendants by whom they may appear and answer and defend this suit. A. 0. Z. C. ANSWER OF INFANTS. The joint and several answer of H. B. R., M. E. R., "W. S. R.^ M. R., L. E. R., F. "W. R., and A. H. R., infants under the age of twenty-one years, by H. S. L., their guardian ad litem, seven of the defendants, to the bill of complaint of W. H., and B M. his wife, complainants. These defendants, answering by their said guardian, say, that they are strangers to all and singular the matters and things in the said bill of complaint contained, otherwise than that these defendants are informed that W. C. R , their father, died seized and possessed of the farm and tract of land mentioned in the complainant's bill, and 288 • INTERLOCUTOEY DECKEE. that these defendants have some interest therein ; and these defend- ants, being infants of tender years, submit themselves to the judg- ment of this honorable court, and pray that their interest may be protected and saved to them. H. S. L., Cl'k, Guardian. INTERLOCUTORY DECREE. (Sere insert title of cause.) This cause being opened to the court by C. S. G., of counsel with the complainants, and it appearing that process of subpcena for the defendants to appear and answer the complainants' bill hath been duly issued, and returned served on all the defendants therein named, but that the defendants A. E. R. and L. his wife, E. F. B., and J. H. R. have not, nor have any of them, appeared, pleaded, answered, or demurred to the complainants' bill of complaint within the time limited by law and the rules of this court, or at any other time, but that they have wholly failed and neglected so to do. And it further appearing that the defendants, H. E. R., M. E. E., W. S. R., M. R., L. E. E., F. W. R., and A. H. R., infants under the age of twenty- one years, have, by H. S. L., their guardian ad litem, filed their answer, praying that their interest in the premises mentioned in the com- plainants' bill may be protected. It is thereupon, on this day of February, in the year of our iLord one thousand eight hundred and sixty , ordered, adjudged, and decreed that the complainants' bill be, and the same is hereby taken as confessed against the defendants, A. R. R. and'L. his wife. B. F. R., and J. H. R. ; and it is further ordered, that it be referred to I. W. L., esq., one of the special masters of this court, to ascertain and report the right, title, and interests of the respective parties in the premises mentioned and described in the bill of complaint in this cause, and also whether, in his opinion, the said lands and real estate are so situate that a partition thereof can be made without great prejudice to the owners thereof, and that he state the facts upon 289 which his opinion is founded ; and in case such partition cannot be made, then to ascertain and report whether, in case of a sale of said premises, under all the circumstances of the case, having regard to the interests of all the parties, the estate and interests of B. F. R., (widow of "W. C. R., deceased,) if any she have, as tenant in dower in the said premises, ought to be excepted from the sale thereof, or whether the same should be sold. And it is farther ordered, that the said master do make his report to the Chancellor on the fourteenth day of February next, at ten o'clock in the forenoon, at the state- house in Trenton. A. O. Z., C. MASTER'S REPORT. (Here insert title of came.) In pursuance of an order of this court, made in the above cause, bearing date on the day of February, in the year of our Lord ono thousand eight hundred and sixty , whereby it was ordered that it be referred to the subscriber, one of the special masters of this court, to ascertain and report the right, title, and interest of the respective parties in the premises mentioned and described in the bill of complaint in this cause, and also to report to this court whether the premises are so situate that a partition thereof can be made without prejudice to the owners, and in case such partition thereof cannot be made, then to ascertain whether in case of a sale of said premises under the circumstances of the case, having regard to the interest of all the parties, the estate and interest of E. F. R., widow of W. C. R , deceased (if any she have,) as tenant in dower in the said premises, ought to be excepted from the sale thereof, or whether the same should be sold. I, I. "W. L., one of the special masters of this court, do hereby report to his Honor the Chancellor, that I have been attended by the solicitor of the complainants, and that in his presence I have examined the matters referred to me by the said order, and I do find and report, that the rights and interests of the respective parties in the premises, whereof partition is sought 290 DECREE FOE SALE. by the said bill of complaint, are as follows, to wit: 1. The said B. F. B,., widow of W. 0. E., deceased, is entitled to' her right of dower in the whole of said premises. 2. That the complainant, B. M., is seized in fee of one equal undivided ninth part of said premises, subject to the aforesaid right of dower of the said E. F. E. 3. The defendants, A. E. E., H. B. E., M. E. E., W. S. E., M. E., L. E. E., F. "W. E., and A. H. E., are each respectively seized in fee of one equal undivided ninth part of said premises, subject to the right of dower of the said E. F. E., as aforesaid. And I do further certify and report, that the said premises are, in my opinion, so situate that a partition or division thereof cannot be made between the parties interested therein without great prejudice to the owners thereof, and that my reasons for this opinion are. that the premises in question are valuable solely for farming purposes, and constitute, as a whole, a farm of convenient size, with suitable farm buildings, but that, if divided into lots among the parties interested therein, the several lots would be too small for farming purposes, and would be of com- paratively little value, as appears from the depositions hereunto annexed. And I do further certify and report, that under all the circumstances of the case, regard being had to the interest of all the parties, the estate and interest of E. F. E., widow of W. C. E., deceased, as tenant in dower in the said premises, ought not to be excepted from the sale thereof, but that, in case of a sale of said premises, the said estate and interest of the said B. P. E., should be sold. All which, as further directed in and by the said order, I do hereby report, on this fourteenth day of February, in the year aforesaid. I. w. L., M. a a DECREE FOR SALE. (Mere insert title of cause.) This cause coming on to be heard in the presence of C. S. G-., of counsel with the complainants, and it appearing that, in pursuance of the decretal order heretofore made in this cause, I. W. L., esq., one DECREE FOB SALE. 291 of the special masters of this court, hath made his report, bearing date on the fourteenth day of February, eighteen hundred and sixty , by which report it appears that the rights and interests of the parties in the premises mentioned and described in the complainant's bill are as hereinafter declared and set forth, and that the said lands and premises are so situate that a partition thereof cannot be made without great prejudice to the owners of the same, and that, in case of a sale of said premises, under all the circumstances of the case, regard being had to the interests of all the parties, the estate of the defendant, E. F. E., as tenant in dower in the said premises, ought not to be excepted from the sale thereof, but that the same should be sold ; and no cause being shown or appearing against confirming the said report, it is thereupon, on this day of February, in the year of our Lord one thousand eight hundred and sixty , by his Honor, Abraham 0. Zabriskie, Chancellor of the state of New Jersey, ordered, adjudged and decreed, and the said Chancellor doth, by virtue of the power and authority of this court, hereby order, adjudge and decree, that the said master's report, and the matters and things therein contained, do stand ratified and confirmed, and that the parties to this suit, herein after named, are seized of and entitled to the lands and premises described in the complainant's bill, with the appurtenances, and that their respective rights and interests therein are, and they are hereby ascertained, adjudged, and declared to be as follows, to wit : The compjainants, "W. H., and E. M. his wife, in right of the said E. M., are seized in fee of and entitled to the one equal undivided ninth part of the said premises, subject to the right of dower of E. P. R. (widow of "W. C. R., deceased,) in the whole premises. The defendants, A. R. R., H. E. E., M. E. R., W. S. R., M. R., L. E. R., F. "W. R., and A. H. R., are each respectively seized of and entitled to one equal undivided ninth part of said premises, subject to the right of dower of the said E. F. R. as aforesaid ; and the defendant, B. F. R., widow as aforesaid, is entitled to her right of dower in the whole of said premises. • And it is further ordered, adjudged and decreed, that all and singular the said premises mentioned in the said bill of complaint, 292 BEPOET OF SALE. and therein described as follows, to wit: [here describe the said- premises,] including the estate and interest of the defendant, E. F. R., widow of W. 0. R., deceased, as tenant in dower in the said premises, together with all and singular the hereditaments and appur- tenances to the said premises belonging or in any wise appertaining, be sold at public auction, to the highest bidder, in the presence and under the direction of esq., one of the special masters of this court. And it is further ordered, that the said master do sell the same in such portions as to him may seem most for the interest of the parties ; and that he do give public notice of the time and place of such sale, and in all respects conduct the same according to the provisions of the statutes in such case provided ; and that the said master do forthwith, after such sale, make report thereof to this court, and after his report of sale shall have been confirmed by this court, then that he make and execute unto the purchaser or pur- chasers thereof good and sufficient conveyances in the law for the said real estate, up6n their complying with the conditions of such sale ; and that such sale and conveyance or conveyances, duly executed as aforesaid, be valid and effectual forever, and do operate as an effectual bar, both at law and in equity, against the said parties, complainant and defendant, and all persons claiming by, from, or under them, or any of them. And it is further ordered, that the said parties, or either of them, be at liberty to apply to this court for further direction, if occasion shall require A. O. Z., C. REPORT OP SALE. (Sere insert title of caitse.) In pursuance of a decree made by the Chancellor in the above cause, bearing date on the day of February, in the year of our Lord one thousand eight hundred and sixty , by which it was, among other things, ordered, adjudged and decreed, that -all and singular the premises in the bill of complaint mentioned and described, with the appurtenances, be sold at public auction, to the highest REPOKT OF SALE. S93 bidder, in the presence and under the direction of the subscriber, one of the special masters of this court, and that the said master should give public notice of the time and place of such sale, and in all respects conduct the same according to the provisions of the statutes in such case provided, and that, after such sale, he should make a report thereof to this court, I, , master as aforesaid, do hereby report to his Honor, the Chancellor, that I did, by public advertisements, signed by myself, and set up at five or more public places in the county of Mercer, one whereof was in the township of Hamilton, where said real estate is situate, at least two months next before the time appointed for selling the same, and also published in the and , tw,o newspapers printed and, published in this statej^and circulated in the neighborhood of said real estate, at least four weeks successively, once a week, next proceeding the time so appointed, give public notice that the said lands and real estate would be exposed to sale at public vendue, on Saturday, the day of , A. D. eighteen hundred and sixty • , at two o'clock in the afternoon, upon the premises, at which time and place so appointed, I did expose the said lands and real estate to sale at public auction, to the highest bidder, and E. F. E., then and there bidding therefor the sum of seventy-five dollars, by the acre, for the tract of one hundred and eleven acres, and no one bidding so much or more for the same, the said tract of land and premises were struck off and sold to the said E. F. E , at the price aforesaid, (amounting for the whole tract to the sum of eight thousand three hundred and twenty -five dollars,) she being the highest biddier for the same. All of which is respectfully submitted, this day of , A. D. eighteen hundred and sixty . I. w. L., M. a a Note. — Annex to the report a copy of the advertisement of aale, with an affidavit of setting up the same, and proof of publication thereof in the newspapers. 294 OEDER CONMEMliTG SALE. ORDER CONFIRMING SALE. (Here insert titk of comae.) Upon reading and filing a report made in the above cause by I. W. L., esq., one of the special masters of this court, bearing date on the day of , A. D. eighteen hundred and sixty , by which it appears that, in pursuance of a decree made by the Chancellor in this cause, bearing date on the day of last, wherein, among other things, it was ordered and decreed that all and singular the premises in the bill of complaint in this cause mentioned and described, with the appurtenances, be sold at public auction to the highest bidder, in the presence and under the direction of the said I W. L , master as aforesaid, the said master having given public notice, according to law and the directions of the said decree, of the time and place, when and where the said lands and real estate would be exposed to sale, and at the time and place so appointed, to wit, on , the day of , A. D. eighteen hundred and sixty , at two o'clock in the afternoon, upon the premises, did expose the said lands and premises to sale at public vendue, to the highest bidder, and E. F. E. bidding therefor the sum of seventy- five dollars by the acre, and being the highest bidder for the same, the said premises were then and there struck off and sold to the said E. F. E. at the price aforesaid, amounting, for the whole quantity of one hundred and eleven acres, to the sum of eight thousand three hundred and twenty-five dollars. And no cause being shown or appearing against confirming the said report — It is, on this day of , in the year of our Lord one thousand eight hundred and sixty , on motion of C. S. G-., of counsel with the complainants, ordered and decreed that the said master's report, and all the matters and things therein contained, do stand ratified and confirmed, and that the said master do make, execute, and deliver to the said E. F. E , in compliance with the aforesaid decree, a good and sufficient conveyance m the law for the said lands and real estate purchased by her as aforesaid, upon her complying with the conditions of said sale. A. 0. Z., C. OEDEE B'OE DISTEIBtTTION. 296 ORDER FOR DISTRIBUTION. {Here insert title of cause.) This cause being opened to the court by C. S. G-., of counsel with the complainants, and it appearing by a report heretofore made by I. W. L., esq , one of the special masters of this court, and now on file, that the gross proceeds of the sale of the real estate and premises in the bill of complaint mentioned, as made by the said master, amount to the sum of $ And it further appearing that E. F. R. (widow of W. C. R., deceased,) was entitled to an estate in dower in the whole of said premises, which said estate was sold therewith by order of this court — It is thereupon, on this day of , in the year of our Lord one thousand eight hundred and sixty , ordered, adjudged and decreed, that the sum of $ . being such part of the moneys arising from said sale as has been adjudged by the Chancellor to be just and reasonable, be put out at interest by the said master, upon good real security by bond and mortgage to the Chancellor of this state, and in such manner that tne said interest may be paid by the mortgagor to the said E. F. R. once in each year, and also in such manner that, at the decease of the said E. P. R., the said sum of $ may be distributed among the parties interested therein according to law, and that the said bond and mortgage be endorsed approved by said master, and after record of the said mortgage, be deposited by said master with the clerk of this court. And it is further ordered, that out of the remaining two thirds of the proceeds of said sale, the said I. W. L , master as aforesaid, do pay to the solicitor of the complainants their costs of this suit to be taxed, and retain his fees and commissions on said sale, as allowed by the rules of this court ; and that of the residue, he do pay to the complainant, E. M., one ninth part : and to the defendant, A. R. R., one ninth part; and to the guardians of each of the several infant defendants, H. E. R., M. E. R., "W. S. R., M. R., L. E. R., F. W. R., and A. H. R., one ninth part, upon their severally executing bonds to the 296 mastee's eepoet. Ordinary of the state of New Jersey, with sufficient sureties, in double the amount of such ninth part, which said bonds shall be approved by said master, and shall be filed with the clerk of this court. And it is further ordered, that the said master file with the clerk of this court a statement of his fees, disbursements, and com- missions under these proceedings, together with a statement or report of the distribution, disposition and investment of the moneys that have come to his hands as the proceeds of said sale. A. 0. z. a Note. — If, upon the reference to the master, it should be proven to his satis- faction, that the premises in the bUl mentioned can be divided without material prejudice to the owners thereof, then the following would be the proper forms of his report and subsequent proceedings in the cause. MASTER'S REPORT. Between W. H. and B. M. his wife, compl'ts, and A. R. R. and wife, and others, def'ts. Master's report. In pursuance of an order of this court, made in the above cause, bearing date on the day of February, in the year of our Lord one thousand eight hundred and , whereby it was ordered that it be referred to the subscriber, one of the special masters of this court, to ascertain and report the right, title, and interest of the respective parties in the premises mentioned and described in the bill of com- plaint in this cause, and also to report to this court, whether the said premises are so situate that a partition thereof can be made without prejudice to the owners ; and in case such partition thereof cannot be made, then to ascertain and report whether, in case of a sale of said master's EEPOEl'. SOf premises, under the circumstances of the case, having regard to the interest of all the parties, the estate and interest of E. F. R., widow of W. C. R., deceased, (if any she have) as tenant in dower in the said premises, ought to be excepted from the sale thereof, or whether the same should be sold. I, I. "W. L., one of the special masters of this court, do hereby report to his Honor the Chancellor, that I have been attended by the solicitor of the complainants, and that, in his presence, I have examined the matters referred to me by the said order, and I do find and report, that the rights and interests of the respective parties in the premises whereof partition is sought by the said bill of complaint, is as follows, to wit : 1. The said B. F. R., widow of. "W. 0. R., deceased, is entitled to her right of dower in the whole of said premises. 2. That the complainant, E. M., is seized in fee of one equal undivided ninth part of said premises, subject to the aforesaid right of dower of the said E. F. R. 3. The defendants, A. R. R., H. E. R., M. E. R., W. S. R. M. R., L. E. R., F. "W. R., and A. H. R., are each respectively seized in fee of one equal undivided ninth part of said premises, subject to the right of dower of the said E. F. R., as aforesaid. And I do further certify and report, that the said premises are, in my opinion, so situate that a partition or division thereof can be made between the parties interested therein without great prejudice to the owners thereof, and that my reasons for this opinion are, that the premises in question, although consisting of a farm, and hitherto used for agricultural purposes only, are in the immediate vicinity of a large and growing town, and are now valuable as present and pros- pective town lots, and are fast increasing in value, and that the said premises, when divided among the parties in interest, will consists of tracts readily divisible into town lots of considerable present and rapidly increasing value, as appears from the depositions hereto annexed. All which, as further directed in and by the said order, I do hereby report to his Honor the Chancellor, at the state house in Trenton, on this fourteenth day of February, in the year aforesaid. I. w. L., M. a a 20 298 DECEEE T'OE fAETITIOlJ. DECREE FOE, PARTITION AND ORDER APPOINTING COMMISSIONERS. In Chancery of New Jersey. Between W. H., and E. M. his wife, compl'ts, and A. R. R. and wife, and others, def'ts. Decree for partition ■ and. order appoint- ing commissioners. This cause being opened to the court by C. S. G., of counsel with the complainants, in the presenceof H. S. L., clerk of this court and guardian ad litem of the infant defendants, H. E. R., M. E. R., W. S. R., M. R., L. E. R., F. W. R., and A. H. R., the bill of com- plaint having been heretofore taken as confessed against the other defendants in the cause, and upon reading a report on file in the cause, bearing date on the fourteenth day of February, instant, made by I. W. L., one of the special masters of this court, from which, and from the testimony accompanying the same, it appears satisfac- torily to the Chancellor that the premises in the bill of complaint mentioned, are so situated that a partition or division thereof can be made among the parties interested therein, without great prejudice to the owners thereof, and that the rights and interests of the said parties in the said premises are as is hereinafter declared and set forth, and no cause having been shown or now appearing against confirming the said report — It is thereupon, on this day of February, A. D. eighteen hundred and sixty , by his Honor A. 0. Z., Chancellor of the state of New Jersey, ordered, adjudged, and decreed, and the said Chancellor doth, by virtue of the power and authority of this court, hereby order, adjudge, and decree, that the said report of the said special master do stand ratified and confirmed, and that the parties, complainants and defendants in this suit, are seized of and entitled to the lands and premises in the bill of complaint described, and their respective rights and interests therein are hereby adjudged and declared to be as follows, to wit : the defendant, E. F. R., is entitled DEOEEE fOE PARTITION. 299 to her right of dower in the whole of said premises ; the complain- ant, E. M., is seized in fee of and entitled to the one equal undivided ninth part of the said premises, subject to the aforesaid right of dower; and the several defendants, A.. R. R., H. B. R., M. E. R., W. S. R., M. R., L. E. R., P. W. R., and A. H. R., are each seized of and entitled to the one equal undivided ninth part of said premi- ses, subject to the aforesaid right of dower. And it is further ordered, adjudged, and decreed, that partition be made of the lands and premises mentioned and described in the bill of complaint in this cause among the said parties, complainants and defendants, according to their respective rights and interests therein, as the same were reported by the special master in the cause, and have been hereby adjudged and declared by this court ; and that A. B., C. D., and E. F., esquires, of the county of , be, and they are hereby appointed commissioners for the purpose of making such partition, and that a commission do issue out of and under the seal of this court for that purpose, to be directed to the said commis- sioners, commanding them to divide the said lands and premises into nine equal parts or shares, each equal in value to the other, quantity and quality being relatively considered, and that they allot one of the said nine parts or shares unto the said complainant, E. M. ; and that they allot one of the said nine parts or shares to each of the said defendants, A. R. R., H. E. R., M. E. R., W. S. R., M. R., L. E. R., F. W. R., and A. H. R., to be held and enjoyed by the said parties respectively in severalty, according to their respective rights and interests therein, as adjudged and declared by this decree, sub- ject, however, to the right of dower of the said E. F. R. therein, and that they designate the parts or shares so allotted to each of the said parties, and the boundaries thereof, by sufficient descriptions and monuments. And it is further ordered, adjudged, and "decreed, that in case partition of such premises cannot be made with perfect equality among the said parties according to their respective rights and interests, unless compensation be made by one or more of said pa,rties to the other or others of them, for, and to secure equality of partition, then, and in that case, the said commissioners may ascertain 300 OOMMlSSIOlf. and report to this court the proper compensation which ought to be made for equality of partition, and by whom of the parties the same should be paid, and to whom the same ought to be allowed ; and that the said commissioners be authorized to employ a surveyor, and cause all necessary maps and surveys to be made, and that all the parties in the cause do produce and leave with the said commissioners, for such time as said commissioners shall deem reasonable, all deeds, writings, surveys, and maps in their possession or control relating to the said premises, and that the said commissioners examine witnesses concerning the matters intrusted to them as they shall think fit. And it is further ordered, adjudged, and decreed, that each share or part of said premises, when allotted as aforesaid, shall be charged with a ratable proportion of the costs, charges, and expenses of this suit. A. 0. Z., 0. COMMISSION. New Jersey, to wit: The State of New Jersey to A. B., C. 1)., and E. F., esquires, of the county of , in said state, \ ' ) Whereas, on the day of February, in the year '^ of our Lord, eighteen hundred and sixty , by a certain decree made in our Court of Chancery, before our Chancellor, at Trenton, in a certain cause, therein depending, wherein "W. H., and E. M. his wife are complainants, and , A. R. R. and L. his wife, E. F. R., H. E. R., M. E. R., W. S. R., M. R., L. E. R., F. W. R., and A. H. R., are defendants, it was ordered, adjudged, and decreed, that a partition be made of a certain tract of land and premises in the bill of complaint in the said cause particularly set forth and described, that is to say : [here set forth the description of said tract, as in the bill of com- plaint] into nine equal parts or shares, each equal in value to the other, quantity and quality being relatively considered, and that for that purpose a commission should issue out of and under the seal of our said court, directed to the said A. B., C. D., and E. F., as com- COMMISSION. 301 missioners, commanding them to make such pa.rtition or division as aforesaid, and that they should allot one of the said nine parts or shares unto the said complainant, E. M., and allot one of said nine parts or shares to each of the defendants, A. R. R., H. E. R., M. B. R., W. S. R., M. K, L. E. R., P. W. R., and A. H. R., to he held and enjoyed by the said parties respectively in severalty, according to their respective rights and interests therein, as adjudged and declared by said decree, subject, however, to the right of dower of the said defendant, E. F. R., therein. Therefore know ye, that we have, pursuant to the said decree, fully authorized and empowered you, or any two of you, to go to, enter upon, walk over, and survey the said tract of land and premises, and the same to separate, divide, and allot, according to the decree aforesaid ; and for the better making of such partition and allotment, we do hereby give unto you, or any two of you, full power and authority to examine separately and apart, upon their corporal oaths or affirmations, upon interrogatories or otherwise, as you shall think fit, such witnesses as shall be produced to you by the said parties, or any of them. And we hereby command you or any two of you, that you do, at certain proper and convenient days and hours, to be appointed by you for that purpose, go to, enter upon, walk over, and survey the said tract of land, and cause the said witnesses to come before you, and examine each of them apart upon interrogatories to be exhibited before you by the said parties or any of them, or other- wise, as you shall think fit, upon their respective corporal oaths or affirmations first taken before you, or any two of you, and to reduce such examinations into writing, together with the questions asked by you, other than the interrogatories aforesaid ; and that you, or any two of you, do separate and divide the said tract of land into nine equal parts, each equal in value to the other, quantity and quahty being relatively considered, and do allot one of the said nine parts unto the complainant, B. M., and allot one of the said nine parts unto each of the said defendants, A. R. R., H. E. R., M. E. R., "W". S. K, M. R., L. E. R., F. W. R., and A. H. R., to be held and enjoyed by the said parties respectively in severalty, according to their respective rights and interests therein, as adjudged and declared 302 by the said decree, subject however to the right of dower of the said' E. F. R. therein ; and that you, or any two of you, designate the parts so allotted to each of the said parties, and the boundaries thereof, by sufficient descriptions and monuments, and employ a surveyor, :ind cause all necessary maps and surveys to be made, and cause all th^' parties in the cause to produce and leave with you, for such time . you. may think reasonable, all deeds, writings, surveys, or maps reliUing to the said premises, in their possession or control; and in case such partition as aforesaid of said premises cannot be made with perfect equality among the said parties, according to their respective rights and interests therein, unless compensation be made by one or more of them to the other or others of them for equality of partition, then that 3'"0u, or any two of you, do ascertain and report the proper compensation which should be made to secure oqualitj' in the partition, and by whom of the said parties the same should be paid, and to whom of them the same ought to be allowed. And when you, or any two of you, shall have so done, you are to certify and return into our Court of Chancery, at Trenton, without delay, your acts and proceedings in the premises, by your certificate, together with the said interrogatories, questions, and examinations, distinctly and plainly written, and the maps made by you, closed up under your seal, or the seals of any two of you, together with this writ. Witness, A. 0. Z., esquire, our Chancellor, at Trenton the day of February, in the year of our Lord eighteen hundred and sixty . H. S. L. Clk. C. S. G. Sol COMMISSIONERS' OATHS. New Jersey, ss. — Be it known, that on the day of February, A. D. eighteen hundred and sixty , before the subscriber, one of the masters of the Court of Chancery of the state of New Jersey, personally appeared A. B., C. D., and B. F., the commissioners 303 named in the within commission, and being by me duly sworn according to law, did each severally depose and say, that he will honestly, faithfully, and impartially, make the partition in said com- mission directed, and perform the trusts, duties, and services required of him by the said commission, to the best of his skill, knowledge, and judgment. A. B. Sworn and subscribed before me, C. D. the day and year above written. B. F. G. H., M. a a COMMISSIONERS' RETURN. In Chanceey of New Jersey. f Return of commissioners. Between "W. H., and E. M. his wife, compl'ts. and A. E. E. and wife, and others, def ts. To his Honor A. O. Z. Chancellor of the state of New Jersey : In pursuance of a certain commission, issued out of and under the seal of the Court of Chancery of the state of New Jersey, dated the day of February, in the year of our Lord eighteen hundred and sixty ;, in the above stated cause, appointing us, the subscribers, commissioners to separate, divide, and allot a certain tract of land and premises, in the said commission particularly set forth and described, into nine equal parts, each equal in value to the other, quantity and quality relatively considered, and allot one of said parts unto the said complainant, B. M., and allot one of said parts, to each of the defendants, A. E. E., H. E. E., M. B. E., W. S. E., M. E., L. E. E., F. "W. E., and A. H. E., to be held and enjoyed by the said parties respectively in severalty, according to their respective rights and interests therein, as adjudged and declared by the decree in said cause, subject however to the right of dower of B. P. E. therein ; and to designate the parts so allotted to each of the said parties, and the boundaries thereof, by sufficient descriptions and 304 monuments : we do hereby report to the said court, that having taken upon us the burthen of the said commission and appointment and having first been duly sworn according to law, we did, after due notice to the said parties, enter upon, walk over, and survey the said tract of land, and did separate and divide the said tract of land into nine equal shares, and did make division thereof by metes and bounds, having regard to the relative quantity and quality of the land in each share ; and that, for the better understanding of the shape and situa- tion of said premises, and of the manner in which such partition has been made by us, we have caused to be made a map thereof, which is hereto annexed, and forms part of this report, and have marked the several shares delineated on said map by numbers, from No. 1 to No. 9, inclusive ; and we did allot one share of said tract of land, being the share marked No. 1 on said map, to the complainant, E. M., which said share No. 1 is bounded and described as follows, to wit : [here describe the premises comprised in this share] ; and we did allot to the defendant, A. R. E., one share of said tract of land, being the share marked No. 2 on said map, which said share No. 2 is bounded and described as follows, to wit : [&c., allotting all the shares] ; to be held and enjoyed by the said respective parties in severalty, according to their respective rights and interests therein, as 3,djudged and declared by the decree in the cause, subject, however, to the right of dower therein of the said E. F. R. And we do further report, that in making the said partition, as the same could not otherwise be made equal between the said parties, and for the purpose of equalizing the same, we did ascertain the compensation which ought to be made in consequence of the difference in the value of certain of the aforesaid shares, and do allot and direct the same to be paid as follows, that is to say : that the said com- plainant, E. M., to whom the share marked No. 1 on said map was allotted, ought to pay the sum of one hundred dollars, to equalize the said partition ; and we do allot and direct that the said sum of one hundred dollars be paid by said complainant to the said defendant, A. R. R., to whom the share marked No. 2 on said map was allotted, SCHEDIILE. 306 And we do further report, that we have annexed to this our return the interrogatories propounded to, and the examinations of the wit- nesses produced hefore us by the said parties. And we do further report, that the schedule hereunto annexed, contains a statement of the items of the various expenses attending the execution of the said commission, including our fees as commis- sioners. In witness whereof, we have hereunto set our hands and seals, this day of March, in the year of our Lord eighteen hundred and sixty . A. B. [l. s.] C. D. [l. s.] E. r. [l. s.] SCHEDULE. "We certify the following to be the costs and expenses of executing the foregoing commission : A. B., commissioner, three days, $4.50 C. I>., " " 4.50 E. F., " " 4.50 G. H., for services as surveyor, three days, 15.00 I. K., " chain bearer, 2.00 L. M., " " 2.00 N. 0., administering oaths to commissioners, .36 $32.86 Dated March — , 186- A. B. C. D. E. F. 306 DEOKEE CONFIEMING PARTITION. DECREE CONFIRMING PARTITION. In Chanceky of New Jersey. Between W. H. and E. M. his wife, compl'ts, r Decree confirming partition. and A. E. R. and wife, and others, def'ts. This cause being opened to the court by 0. S. G., of counsel with the complainants, in the presence of H. S. L., clerk of this court and guardian ad litem of the infant defendants in the cause, the only- defendants who have appeared therein, and upon reading a report on file in the cause, made by A. B., C. D., and E. F., commissioners appointed by a decree of this court, made in this cause, to make a partition and division of the tract of land in the bill of complaint in the cause particularly set forth and described, by which report it appears that the said commissioners, having first been duly sworn according to law, and having given due notice to the several parties, did enter upon, walk over, and survey the said tract of land and premises, and did proceed to, and did separate and divide, the said tract of land, into nine equal parts or shares, quantity and quality relatively considered, and did allot one of said shares, being the share marked No. 1 on the map annexed to their said report, and forming a part thereof, and now on file in the ofBce of the clerk of this court, to the complainant, B. M., which said share is bounded and described as follows, to wit : [here describe the premises in this share] ; and did allot one of said shnres, being the share marged No. 2 on said map, to the defendant, A. R. R., which said share is bounded and described as follows, to wit: [tfec, allotting all the shares] ; and by which said report it further appears, that in making the said partition, as the same could not otherwise be made equal between the said parties, and for the purpose of equalizing the same, the said commissioners did ascertain and report the compensation which ought to be made in consequence of the difference in value of DECREE CONFIRMING PARTITION. 307 certain of said shares, and did allot and direct that the said com- plainant, E. M., to whom the said share marked No. 1 on said map was allotted, should pay the sum of one hundred dollars, to equalize the said partition, and that the said sum of one hundred dollars should be paid by the said complainant, E. M., to the said defendant, A. R. R., to whom the share marked No. 2 on said map was allotted : and it appearing that a copy of the rule nisi, confirming the said report, has been duly served upon the answering defendants, and no cause having been shown or now appearing against confirming the said report — It is thereupon, on this day of March, A. D. eighteen hun- dred and sixty , by his Honor A. 0. Z., Chancellor of the state of New Jersey, ordered, adjudged, and decreed, that the said report of the said commissioners, and all the matters and things therein contained, do stand ratified and confirmed ; and that the said com- plainant, E. M., do have, hold, use, occupy, possess, and enjoy, in severalty, the herein before described share or allotment of the said land and premises, distinguished as share No. 1 on the map accom- panying said report, allotted and assigned, as aforesaid, to the said complainants ; and that the said defendant, A. R. R., do have, hold, use, occupy, possess, and enjoy, in severalty, the herein before described share or allotment of the said land and premises, distin- guished as share No. 2 on the said map, allotted and assigned, as aforesaid, to the said defendant ; \&c., making decree as to all the snares] ; all of said shares, however, to be held by the several parties subject to the right of dower therein of the said E. F. R., and that the said partition, so as aforesaid made, stand and be held firm, valid, and effectual for ever. And it is further ordered, adjudged, and decreed, that the several other parties to this suit, except as hereinafter provided, do forth- with execute and deliver to the said E. M., H. E. R., M. E. R., W. S. R., M. R., L. E. R., F. "W. R., A. R. R., and A. H. R., severally,a sepa- rate deed conveying and releasing to him or her, and his or her heirs and assigns for ever, in fee simple, the part or parcel hereby allotted and partitioned to him or her respectively, and that in executing each of said deeds, all the parties to this suit shall join except the 308 FOEM OF CONSENT. said E. F. E., and the party to whom such deed shall be executed, and his or her wife or husband. And it it further ordered, adjudged, and decreed, that the said complainant, E. M., do pay to the said defendant, A. R. R., the sum of one hundred dollars, and that any of the parties to this suit be at liberty to apply to this court from time to time, for such further directions as may be necessary, for the payment of the costs and expenses thereof. A. 0. Z. 0. X. DOWER AND CURTESY. FORMS ■WHERE DO"WER, CURTESY, AND LIFE ESTATE IN LIEU OF DOWER, IS SOLD IN PROCEEDINGS FOR PARTITION, OR FOR SALE OF INFANTS' LANDS. Note. — In partition, dower or curtesy may be sold by order of the court without consent of the tenant ; in proceedings for sale of infants' lands, it requires consent of the dowress or life tenant in writing, which must be given to the special guardian before the sale, that he may sell the lauds free from the dower or life estate. FORM OF CONSENT. (Jl'ife of cause a/nd cowt.) I, E. F., being entitled to dower in the lands ordered to be sold by the Chancellor in the above matter, do hereby consent and agree with C. D., the special guardiai-;. t>.at he may sell my estate in said premises, and that I will join in the sale, and release my said estate to the purchaser ; and that I will accept, in lieu thereof, a gross sum to be ascertained and approved by the court, or the investment of a reasonable sum, to be ascertained and approved by the court, in such manner that the interest thereof shall be made payable to me during my life. E. F. Dated March — , 186—. OBDEE FOB EBFEBBNCE. 30 9 ELECTION BETWEEN GROSS SUM AND INTEREST. (Title of cov/rt a/nd cause.) I, B. F., being entitled to dower in the lands sold under the pro- ceedings in the above cause, and my said estate having been sold and conveyed to the purchaser, do hereby consent and elect to receive and accept, in lieu thereof, such sum in gross, out of the proceeds of the sale, as shall be approved by the Chancellor, as a just and reason- able satisfaction for the same ; (or, the mvestment of such sum as the Chancellor shall deem reasonable and approve, m such manner that the interest tli&reof he paid to me during my life.) Given under my hand this day of , in the year eighteen hundred and . E. F. Signed in presence of I. W. L., M. C. ORDER OP REFERENCE. (Title af cause mtd cov/rt.) ^ It appearing to the court that E. F. was entitled to an estate of dower in the lands and premises sold in this cause, and that (before the sale she agreed in writing with the special guardian to join in the sale and release her right of dower to the purchaser, and that) she has by writing signed by her, and filed in this cause, consented to accept, in lieu thereof, a gross sum to be approved by the Chancellor ; (or, the permanent investment of a reasonable sum to be approved by the Chan- cellor, in such manner that the interest thereof shall be payable to her during her life) ; (or, in partition proceedings, has given no consent in writing to accept a gross sum in lieu of said estate.) It is thereupon, on this day of , ordered by the Chan- cellor, that it be referred to I. W. L., one of the special masters of this court, to ascertain and report, what is a proper sum in gross to be paid out of the proceeds of said sale, to said E. F., as the value 3l0 master's eepoe'T. of her dower ; (or, to be invested for the object aforesaid) ; said sum to be ascertained according to the directions in the rules of this court, (and in case of gross sum only, and to be calculated upon the principle of life annuities on the basis of the table annexed to said rules. And to inquire into and report the condition of health of said E. Jf., and whether she has an average expectancy of life, and if not, what deduc- tion should be made from said sum in'gross on that account). A. 0. z. a MASTERS' REPORT ON SUM IN GROSS. (Title of cause amd court.) To His Honor A. 0. Z. Chana-llor of the state of New Jersey. I, the undersigned, I. W. L., one of the special masters of this honorable court, do report that, in parsuance of an order made in the above entitled cause, bearing date on the day of , by which-it is referred to me to ascertain and report what is a proper sum in gross to be paid out of the proceeds of the sale in this case, to E. F., as the value of her dower, I have proceeded to inquire into and ascertain the same in the manner directed by said order, and by the rules of this court relating thereto. And I do report, that the clear yearly income which the said E. P. could realize from said lands, if owner of the whole for life, above insurance, repairs, and taxes, is the sum of dollars, and in such calculation I have made allowance for all repairs necessary to keep the premises in as good condition as they were at the time of the sale, including the renewal of any part of the buildings thereon that may, by ordinary wear and tear, decay, and require renewal. And I do further report, that the age of said E. F. is sixty years, and that the value of such dower, calculated upon the basis of the table contained in the rules of this court, from one third of said clear income, is the sum of $ . And I do further report, that the value of said dower, calculated upon the basis of said table, from the net proceeds of sale, which are $ , is the sum of $ . And I do further report, that the proper sum in gross to be paid to the said B. F., ascertained by adding one half MASTEE*S EEPOte'r. Sll of the excess of the value above ascertained from the net proceeds of sale, over the value above ascertained from the clear yearly income to the last mentioned value, is the sum of | . And I do here- with transmit the depositions of witnesses taken by me, upon which this report, and the conclusions therein, are founded. All which is respectfully submitted. I. "W. L., M. C. Dated, &c. MASTERS' REPORT ON AMOUNT TO BE INVESTED. {Title of cause wnd cowrt.) To His Honor A. 0. Z., Chancellor of the state of New Jersey. I, the undersigned, I. W. L., one of the special masters of this honorable court, do report that, in pursuance of an order made in the above entitled cause, bearing date on the day of , by which it is referred to me to ascertain and report what is a proper sum' to be permanently invested, in such manner that the interest shall be payable to E. F., during her life, in lieu of her dower in the lands sold in this cause, I have proceeded to inquire into and ascertain the same in the manner directed by said order, and the rules of this court relating thereto. And I do report, that the clear yearly value which the said E. F. could realize from the whole of said lands, if owner of the whole for life, above insurance, taxes, and repairs, is the sum of dollars ; and in such calculation I have made allowance for all repairs necessary to keep the premises in as good condition as they were at the time of the sale, including the renewal of any part of the buildings thereon that may, by ordinary wear and tear, decay, and require renewal ; and that one-third of said clear income, or dollars, is the part thereof to which said E. F. would be entitled. And I do further report, that the net amount of sales is dollars ; and that one-third of the interest thereon at seven per cent. is dollars ; and that the proper income to be secured to said E. F., in lieu of her dower, is the sum of dollars yearly, which 812 COEPOSATtONS. sum I have ascertained by adding to the above amount to #hich she would be entitled from the clear yearly income, one-half of the excess of the interest of one-third of the net proceeds above the same. And I do further report, that the proper sum to be invested out of the proceeds of sale for the purpose of procuring the said income for the said E. F., is the sum of dollars, which is the amount that would produce said income at seven per cent., and I do herewith transmit the depositions of witnesses taken by me, upon which this report, and the conclusions therein, are formed. All which is respectfully submitted. I. W. L., M. a Dated, &c. XI. CORPORATIONS. In Chancery of New Jersey. Between A. B. Complainant, and \- Bill, &c. 0. D. Defendant. To His Honor A. 0. Z. Chancellor of the state of New Jersey. "" ■ Humbly complaining, show unto your Honor your orators, the Merchants Bank at Philadelphia, creditors of '' the president and directors of the Bank of ," and all others the creditors and stockholders of the said the president and directors of the Bank of , who shall come in and seek relief by, and contribute to the expense of this suit, that by an act of the legislature of the state of New Jersey, passed, &c., entitled, "An act to erect and establish a bank in the city of ," it was, among other things, provided, that a subscription might be opened for one hundred thousand dollars, in shares of $50, each, and that the said subscription should be taken in under the direction of A. R., J. "W". &c. and that, as soon as one thousand shares should be subscribed, the persons empowered to receive subscriptions, or any three of them, might call a meeting of COSPOKATlONS. 313 the subscribers at , by giving notice thereof in the manner pro- vided by said act, who, when assembled in consequence of such notice, should choose, by ballot, from among the subscribers, by a majority of votes of such as were present, or by proxy, eleven directors, for the term of one year thereafter, and that on the same day annually thereafter, a like election should be made, and that the said directors, or any seven of them, at their first meeting after every general election, should elect from among themselves, by a majority of the members present, by ballot, a president, who should be an inhabitant in the city of ; and it was further provided by said act, that all such persons as should become subscribers to said capital stock, their successors and assigns, should be, and were thereby created and made a corporation and body politic, by the name and style of "the president and directors of the Bank of ," and by that name were made capable, among other things, to sue and be sued, implead and be impleaded, answer and be answered unto, defend and be defended, in any court of record, and also ' to make, have and use a common seal, and the same to break, alter and renew at their pleasure ; and it was by the said act further provided, that the said company might, from time to time, increase their capital stock, by the addition of as many shares as might be judged expedient, provided that the whole number, of additional shares should not exceed two thousand; and that a majority of the whole number of directors should have power to fix on a place in the city of for transacting the business of said company; and that the corporation should not directly or indirectly deal or trade in anything except bills of exchange, promissory notes, gold or silver bullion, or in the sale of goods which should be the produce of its lands ; and that the said act should be and continue in force for and during the period of years from and after the passing thereof, and from thence until the end of the next session of the legislature, and no longer, as in and by the said act of the legislature, reference being thereunto had, may more fully appear, and to which act, or an exem- plified copy thereof, when produced, your orators, for greater certainty, pray leave to refer. 21 314 COEPOEATIONS. And your orators further show, that, by virtue of the said act of incorporation, the said company went into operation, and commenced the usual business of banking in the city of aforesaid, and con- tinued said business under and by virtue of said act, and by and under the name of the president, directors. &c. ; and that on the second day of November, in the year, &c. the legislature of the state of New Jersey passed another act entitled, " An act to extend the charter of the Bank of ,'' whereby it was and is enacted, that tha act entitled, " An act to erect and establish a bank in the city of ," passed the day of , in the year, &c. be, and the same was thereby extended and limited to the day of , in the year, &c. as in and by the said last mentioned act may more fully appear, and to which, for greater certainty, your orators pray leave to refer; by virtue of which said last mentioned act the said corporation continued and carried on their usual business of banking in the said city of , until they stopped payment and became insolvent, as hereinafter mentioned, and during that time issued notes or bills to a large amount, and discounted notes, and received deposites, and transacted banking business, and have at this time notes, usually called bank bills or notes, to a considerable amount in circulation. And your orators further show, that on the day of last past, or thereabouts, the said president and directors of the Bank of stopped payriient, and from that time have refused and neglected to redeem their bills, notes, or other evidences of debt in specie, or in the notes of any other incorporated bank current in this state at par value, for want of funds, when the same were presented for that purpose, and neglects and refuses to pay its just debts, when demanded within the usual and proper hours of business, and have suspended from the time last mentioned the ordinary business of the said bank, for want of funds to carry on their business; and as your orators have heard, and verily believe, the said the president and directors of the Bank of are now insolvent and unable to pay their just debts, and have no hopes or expectation of ever being able to pay all their just debts, or of again resuming the business of banking. eofePORlTtOifg. SI 5 And your orators further show, that the said the president and directors of the Bank of , on the day of , in the year, &c. at their banking house in the city of made and executed their certain bill, draft, or note, bearing date the day and year last aforesaid, whereby they promised, months after the date thereof, to Tp&j to the order of , dollars, at the Merchants Bank at Philadelphia, without defalcation or discount, for value received, which said bill or note was executed under the seal of the said the presi- dent and directors of the Bank of . and signed by , then and now the president of the said company, and countersigned or endorsed by ,. cashier of said company, and was endorsed by the said and trading under the name, style, and firm of • , and, for a valuable consideration, assigned over, transferred and delivered to your orators, they paying the jmount specified therein, after deducting therefrom the usual and lawful discount, by means whereof your orators became creditors of the said the presi- dent and directors of the Bank of , and are now the owners and holders of the said bill or note. And 3^our orators further show, that, when the said bill or note became due and payable, the said the president and directors of the Bank of held no funds in the Merchants Bank of Philadelphia, the place where the same was made payable, to pay the same, and that your orators then applied for the payment thereof at the banking house of the said the president and directors of the Bank of , in the said city of , and that the said the president and directors of the Bank of neglected and refused to pay the same on such application, and your orators are apprehens-ive that they shall lose the said debt, or a considerable part thereof, in consequence of the insolvency of the said the president and directors of the Bank of . But now, so it is, may it please your Honor, that the said the president and directors of the Bank of , combining and confed- erating to and with divers other persons at present unknown to your orators, whose names, when discovered, your orators pray may be inserted herein, with proper and apt words to charge them as parties hereto, how, to injure and oppress your orators and to avoid the payment of their just debts, have suspended payment of all their 316 COEPOEATIONB. debts, and refuse and neglect to pay your orators and to satisfy them what is justly due them as aforesaid. In tender consideration whereof, and forasmuch as your orators have no effectual remedy at law, and can only in this honorable court obtain an injunction against the said corporation and its officers and agents from receiving any debts due said corporation, or from paying or transferring any of the moneys or eifects of the said bank, and from exercising any of the privileges or franchises granted by the said act of incorporation, and the act extending and limiting the same, and the appointment of a receiver or receivers, or trustees, to receive and take charge of all moneys, goods, chattels and effects, lands and tenements, of the said the president and directors of the Bank of , for the benefit of the creditors and stockholders of said company. To the end therefore, that the said the president and directors of the Bank of , and their confederates, when discovered, may, according to law, full, true, direct and perfect answer make to all and singular the matters and things before stated and set forth, as full}' and particularl}'' as if the same were herein again repeated, and they thereto particularly interrogated, and may set forth and discover the goods and chattels, rights and credits, moneys and effects, and real estate of every kind and description, belonging to the said corpora- tion, and that your orators and the other creditors and stockholders of the said Bank of , who may come in as parties to this suit, and contribute to the carrying on the same, may be paid what is justly due them, and that the said president and directors of the Bank of , their officers and agents, may be enjoined from receiv- ing any of the debts due to the said corporation, and from paying or transferring any debts, moneys or effects of the said bank, or from exercising any of the franchises or privileges granted by either of the acts of the legislature above mentioned and referred to ; and that a receiver or receivers, or trustee, may be appointed, with full power and authority to sue for, collect, receive and take into his or their possession all the goods, chattels, rights and credits, moneys and effects, lands and tenements, books, papers, choses in action, bills, notes, and property of every description belonging to said company CORPOE ATION S . 317 at the time of their suspending business as aforesaid, and to sell, convey and assign all the said real and personal estate of the said the president and directors of the Bank of , and to bring into this court all the moneys and securities for moneys arising from such sale, or which the said receiver or receivers, or trustee, shall collect or receive by virtue of the authority vested in them, and according to the act of the legislature of the state of New Jersey in such case made and provided ; and that your orators may have such other and further relief in the premises as the nature and circumstances of their case may require, and shall be agreeable to equity and good conscience. May it please your Honor, the premises considered, to grant unto your orators the state's writ of injunction, issuing out of and under the seal of this court, to the said the president and directors of the Bank of , and their agents and oflicers, to be directed, enjoining and restraining them, and each and every of them, from receiving any of the debts due to the said company, and from selling, transfer- ring or conveying away any of the goods, chattels, rights, credits or effects of the said bank, and from conveying away, encumbering or otherwise disposing of any of the real estate of the said bank, and from paying any of the debts of the said bank, until the further order of the court, and also the state's writ of subpoena, &c. {in usual form.) Annex affidavits to the bill, of the truth of the allegations, and also setting forth the special facts and circumstances of the case, which bring it within the provisions of the act of the legislature. The Chancellor will grant an injunction at once, or order notice of the motion for an injunction to be given for some short day, according to the circumstances and exigency of the case. 318 FORM OF NOTICE. Order for injunction. II... ORDER FOR INJUNCTION. In Chancery of New Jersey. Between \ Merchants Bank, &c. Complainants, [ On hill, &c. and Bank of , &c. Defendants Upon opening the matter this day to the pourt, by G. H. solicitor for and of Counsel with the complainants, and upon reading the bill of complaint in this cause, and the affidavits thereto annexed, and on duly considering the same — It is ordered, that the same be filed, and that thereupon an injunction do issue against the said defendants, according to the prayer of the said bill. A. 0. Z: C. Dated, &c. Prepare an injunction in the usual form, according to the prayer of the bill, aud serve it with a subpoena to appear, &c. Let notice of an application for the appointment of receivers be given to the defendants. The chancellor wiU direct what notice shall be given, and fix a day for the hearing. IIT...FORM OF NOTICE. In Chancery of New Jersey. ■i On hill, &c. y Notice of application for re- ceivers. Between Merchants Bank, vs. P. & D. of the the Bank of- Take notice, that an application will be made to the Chancellor, on Tuesday, the day of next, at o'clock, at the state- house in Trenton, (or at his chambers in ), for the appointment of a receiver or receivers, or trustees to take charge of the effects and property of the bank of . Your obedient servant, J. S. Sol. for complainants. Dated, &c. File a copy of the notice, with an affidavit of service annexed. APPOINTING EECEIVEE8. 319 IV...FORM OF AFFIDATIT OP SERVICE. New Jersey, ss. — Be it remembered, that on this day of -, in the year, &c. personally appeared before me the subscriber, one of the masters of the Court of Chancery of New Jersey, esquire, sheriff of Mercer, &c. who, being duly sworn, on his oath saith, that he served a notice, of which the foregoing is a true copy, upon , president of the Bank of , personally, on the day of the date hereof. R. J. Sheriff. Sworn, &c. J. E. Master. T...ORDER APPOINTING RECEIVERS. In Chancery of New Jersey. Between Merchants Bank, vs. P. & D. of the Bank of On bill, &c. Order for receivers. Upon opening the matter this day to the court, by , solicitor for and of counsel with the complainants, and duo proof being made to me of the service of notice of this application on the defendants. It is ordered, that A. B., C. D. and E. F. be, and they hereby are appointed receivers, with full power to demand, sue for, collect, and receive and take into their possession, all the goods and chattels, rights and credits, moneys and effects, lands and tenements, books, papers, choses in action, bills, notes, and property of any and every descrip- tion, belonging to the said the president and directors of the Bank of , at the time of their suspension of business, and to do and perform all the duties imposed upon them and required by law, and especially by an act entitled, " An act to prevent frauds by incorpo- rated companies," passed, &c. A. 0. z. a Dated, &c. 320 OBDEE LIMITING CEEDirOBS. The oath to be taken by the receivers is prescribed by the eighth section of the act. — Nixon's Digest 404, &c. VI...FORM OF ORDER LIMITING CREDITORS. In Chancery of New Jersey. Merchants Bank, 1 , J- On bill, &c. vs. P. and D. of the Bank of J Upon opening the matter to the court by , solicitor for and of counsel with the complainants in the above cause — It is ordered, that the creditors of the said the president and directors of the Bank of do present to the receivers appointed in this cause, and prove before them, under oath or affirmation, or otherwise, as the said receivers shall direct, to the satisfaction of the said receivers, their several claims and demands against the said company, within six months from the date of this order, or that they be excluded from the benefit of such dividends as may thereafter be made and declared by this court upon the proceeds of the effects of said corporation ; and for the better ascertaining the creditors of said corporation, and what is due to them, respectively, the said creditors are to be exam- ined as the said receivers shall direct or may deem necessary and expedient, and produce books and papers before the said receivers, on oath or affirmation, which oath or affirmation the said receivers are hereby authorized to administer, as well as to examine, under oath or affirmation, all such witnesses as shall be produced before them, touching the demands of said creditors. And it is further ordered, that the said receivers do cause proper advertisements to be published in at least six newspapers published in this state, and such newspapers published in the cities of New York and Philadelphia, as they shall deem proper and advisable, for the creditors of said cor- poration to come in before them, and prove their claims and demands, as in this order is directed j and that such publication be made within ORDER OF REFERENCE. 321 twenty days from the date hereof, and be continued in such papers as aforesaid for the space of three months. A. 0. z. a Dated, &c. Have publication made, as directed by the order, and when the receivers have moneys in their hands sufficient to render a dividend among the creditors proper, apply for a reference, to settle the amount to be divided. tii.,.porm: op order of reference. In Chancery of New Jersey. Merchants Bank of ] vs. y On bill, &c. The P. & D. of the Bank of . j The court being this day informed by ■ , of counsel with the complainant, that the receivers appointed in this cause are ready to make a dividend of a part of the assets and funds in their hands among certain creditors of the Bank of , It was prayed, that it may be referred to J. E. esquire, one of the masters of this court, to take and state an account of the several sums of money which have come to the hands of the said receivers from the debts due to the Bank of , and from the sale of property belonging to said bank ; and also of the sums paid, laid out and expended by the said receivers for and on account of costs, counsel fees, charges and expenses, debts paid and offsets allowed, &c. relating to or concerning their duties and business as receivers for the creditors and stockholders of said bank, which is accordingly ordered ; and that the said master make his report at or before the next stated term of this court. A. O. Z., C. Dated, &c. 322 master's kepoet. TIII...FORM OF MASTERS' REPORT. In Chancery of New Jersey. Merchants Bank of , "j vs. I On bill, &c. The P. & D. of the Bank of . J In pursuance of an order of this court in the above stated cause, made on the day of , by which it was ordered that it be referred, &c. (recite order) I,' the said , do respectfully report to His Honor the Chancellor of the said state, that, having first duly notified the receivers aforesaid, I have been attended, at , by the said receivers and by , esquire, of counsel with the complainants, on the day of , &c. and have: considered of the matters referred to me. I have taken the accounts directed by the said order to be stated, and have stated the same in two schedules, hereunto annexed, and which I pray may be considered as part of this my report ; and I find that there has been received by the said receivers, for debts due to the Bank of , and from the sale of property belonging to said bank, the sum of , as will appear by schedule A. hereunto annexed, and that the said receivers have laid out and expended, for and on account of costs, counsel fees, charges and expenses, debts paid and offsets allowed, relating to or concerning their business and duties as receivers for the creditors and stock- holdors of said bank, the sum of , as will appear by schedule B. to this my report annexed, which sum, being deducted from the aforesaid charges, leaves a balance of remaining in the hands of the receivers, as will also appear at the foot of schedule B. I have also taken the depositions of two of said receivers, as to the truth of the said accounts, which will hkewise appear annexed to the said schedules A. and B. respectively ; and in the taking of slid accounts the said receivers produced before me their book of entries for incidental expenses and other charges, and also their receipts and other vouchers, which are marked as exhibits E. (No. to No. inclusive) whereby it satisfactorily appears that the several EXCEPTIONS. 323 payments hereinbefore referred to correspond and are correct in sums and dates. All which is respectfully submitted. , Master. Dated, &c. Schedules in the usual form, with oaths of receivers annexed, " that the foregoing is a just and true account or statement," &c. If any creditor feels aggrieved by the report, he may apply to the court for leave to file exceptions; and the practice has been, by order, to "allow him to appear by a separate solicitor and.take separate exceptions to the report." But he should give notice of such application for leave, to the complainant and the receivers. IX..FORM OF EXCEPTIONS. In Chancery of New Jersey. Merchants Bank of , 1 vs. I On hill, &c. The P. & D. of the Bank of . j Exceptions taken by A. B. one of the creditors of the said Bank of , part of whose claims against said bank have been admitted and allowed by the receivers appointed in this cause, and part is now pending on an appeal from the decision of said receivers, to the report of , esquire, one of the masters of this court, made in this cause, and dated, &c. First exception. — For that it appears, in and by the said rfiport, and the schedule thereunto annexed, that the said master, in taking and stating the said accounts contained in said schedule, has stated and allowed, as part of the expenditures and disbursements of said receivers, the following sums viz. : {state items excepted to.) "Whereas, if said sums have been paid by said receivers, they are excessive, and were paid without authority, and not in the discharge of the duties of their oflSce ; and said sum ought not to have been paid by said receivers, nor allowed by said master, as part of their regular and proper disbursements and expenses. 324 APPEAL. Second exception, &c — In all which respects the said exceptants do except to the said master's report, and respectfully a,ppeal therefrom to the judgment of this honorable court. J. S. Sol. Dated, &c. Or the question may be brought before the chancellor by appeal. See sec. 11, NmorCs Digest 408. X...PORM OP APPEAL. In Chancery of New Jersey. Merchants Bank of 1 The P. & D. of the Bank of vs. I On hill, &c. -■ J To His Honor, A. 0. Z., &c. The petition of A. B. respectfully shows, that your petitioner, being a creditor of the said Bank of to a large amount, did heretofore and within due time present his claims to the receivers appointed in this cause for allowance ; that the same were presented in due form, properly proved and substantiated by evidence, and submitted to said receivers, and that said receivers admitted and allowed a part of the same, but as to a certain other part of the said claims of your petitioner, they made an order or decree, bearing date on the day of , by which they adjudged, &c. And your petitioner conceives that he is aggrieved b}^ said decree of said receivers, and insists that, &c. And your petitioner doth respect- fully appeal from said order of said receivers to this honorable court, and pra)''s that the same may be reversed, and such order made in the premises as shall be agreeable to equity and good conscience. And your petitioner, &c. A. B. Sol. Dated, &c. Where the report of the master is not e.xcepted to or appealed from, the cause may be set down for hearing, and a decree made for distribution among the creditors. SOSEDULE OF COSTS. 325 XII...GENE'EAL SCHEDULE OE COSTS. For bill of costs in a common foreclosure case, see ante TICKETS, ante 114. S.&C. Ch. Clk. Als. Drawing, engrossing and filing ticket, .30 .12 NON-KESIDK.NT DEFENDANT ante 115. Drawing, talcing and filing affidavit of non-residence .20 1.50 1.20 .20 .20 1.50 1.34 .12 .44 .24 .20 Motion for order of publication Drawing, eng. fllg. and copy, do. 4 fol. Drawing, taking and filing proof pub. Printer's fees for publishing (per bill), Drawing, proof mailing .20 .12 Drawing and mailing notices, each. . . DECHEE PRO coNFESSO, ante 119. Motion for decree pro confesso Counsel fee on argument Drawing, eng. and fil. said dec , 3 fol.. 1.50 3.00 .96 1.34 •12 INFANT DEFENDANTS, ante 121. Drawing no. to infant and serving, &c. Drawing, tak. and fil. proof of serv. &;c. Motion for appointment of guardian . . Drawing, eng. and filing do. 3 fol Clerk dr'ng, en'g and fil. appearance. Notice to guardian of taking account. Filing copy, no. and acknowledgment. .40 .20 1.50 .90 .40 1.34 .24 .12 .52 .24 .12 MASTEB ON SP'CLBEFEEENCE ante 126. Making report on cases embraced in Eule 36 4.00 Drawing the same and schedule, 5 fol Making report in other cases Summons to defendant 1.50 1.34 .40 Drawing report, 5 fol. 14 cents Scheduling' 3 fol 1 cents .70 .30 Swearing witness .12 326 gCflEDUtE Ofi' COSTg. S.&C, Ch. Clk. Als. Taking. 1 fol. examinatioti .20 Marking 1 exhibit .10 BULE FOR HEARING, ante 131. Rule for hearing &c .80 .40 .75 .32 .50 Setting down cause Notice and service on defendant PLEADINGS, &c., ante 152. Drawing, eng. and fil. demurrer, 3 fol. Drawing affidavit to do .90 .20 3.00 .20 .90 .20 .90 .12 .12 .12 .12 .12 .12 .12 20 Drawing, eng. and fil. answer, 10 fol. Drawing, tak. and filing affidavit to do. Drawing, eng. and filing plea, 3 fol . . Drawing affidavit to do .20 Drawing, eng. and fil. replication, 3 M oommis'n to TAKE ans'r, ante 160 . Motion for order for commission Argument fee on motion with notice, Drawing and engrossing said order, 8 fol. and filing do 1.50 3.00 .90 .90 s 1.34 .40 .12 1.34 .24 Drawing, eng. and sealing com. 3 fol. Filing said commission and return. . . ON EXCEPTIONS, ante 161. Drawing and engrossing exceptions to answer, 4 fol. and filing Rule referring exceptions, and copy. Counsel attending master on do Master makins" renort 1.20 .80 3.00 1.50 3.00 1.50 .75 1.34 .12 .32 .12 .12 1.34 Drawuig, eng. and fil. do. 4 fol. 14 cts. Motion for order to confirm report. . . Argument fee on said motion Drawing, eng. and fil said order, 5 fol. .56 EXAMINATIONS, ante 168. Drawing notice and service on a deft. .40 Schedule ot cosTS. 327 Counsel attending examiner Drawing, eng. and sealing subpcena ad test Swearing a witness Examiner taking, 1 fol. examinations, Marking 1 exhibit Filing deposition and proof of notice, Each witness in county, 1 day Each witness out of county, 1 day . . Every 30 miles travel of for. witness, COM. TO TAKE TESTIMONY, ante 169. Drawing, taking and filing affidavit Motion for order for commission. . . Argument fee on do Drawing, eng. and filing order, 3 fol Drawing, eng. and sealing com. 5 fol., Drawing and eng. com'rs oath, ] fol., Draw'g and eng. interrogatories, 5 fol. Filng com. and ret. schedule, inter roga'ts and dep'ns, 12 cts. a paper, RULE TO coNFiEM REPORT, ante ] 73. Rule to confirm report, and copy .... ORDERS, &0., ante 174. S.&O. Oh. Clk. Als. 3.00 .40 .20 1.50 3.00 .90 1.50 .20 1.50 Motion for every order If litigated, argument fee Drawing, eng. do. per fol. and filing, WRITS, &c., ante 183. Drawing, eng. attachment and seal . Filing do. and return, and bond. . . . Drawing me exeat, per fol. and seal. . Filing do. and return, and bond ON DISMISSAL, ante 190. Motion for decree of dismissal. Clerk entering dismissal .80 1.50 3.00 .30 .30 1.50 .40 1.34 .40 .75 1.34 .40 .40 1.34 .36 ,12 .12 .32 .12 .36 .36 .50 .12 .20 .10 .50 1.00 1.00 20. 32g SCHEDULE Ot' costs. S.&C. Oh. Clk. Als. Drawing, eng. and filing do. 2 fol Enrolling proceedings(if not dismissed by consent), per fol INJUNCTION, ante 204. Motion for injunction .64 1.50 3.00 .30 1.50 .30 3.00 .80 1.50 3.00 1.20 3.00 .90 .20 1.50 3.00 1.34 .40 .75 1.34 .12 .8 .12 .24 .24 .32 .44 .12 .12 .12 .12 .12 Argument fee on do Drawing, eng. and filing order, 1 fol., Drawing, eng. and seal, injunct. 5 fol. Filing do. and return Sheriff's fees (same as on subpcena). ALLOWED BY MASTER, ante 210. Drawing and eng. petition for injunc- tion, 1 fol Counsel atttending master 2.00 Filine" Detition and renort Rule for iniunctioii &c Drawing &c as before RECEIVERS, &c., ante 214. Motion for order to appoint receiver, Arffument fee on do Drawing, eng. and fil. order and copy, 4 fol ir THERE IS A REFERENCE, add Master making report 1..'54 Drawing and eng. do. (per fol.) and fil, Drawing and tak. recog. 2 fol. and fil., INFANTS, ante 219. Drawing, engrossing and filing peti- .14 .40 Drawing and filing consent, 1 fol — Drawing and taking aifit. and fil. 2 fol.. Motion for order appointing guardian, Argument fee on do .12 SoSedule of fiosfS. g29 Drawing, eng. and filing order, 2 fol., SURPLUS MONEY, ante 234. Eetaining fee for solicitor and counsel, Drawing, eng. and fil. petition, 6 fol. Drawing, taking and filing affidavit . . Motion for order of reference Draw'g, eng., fil.. and copy of do. 3 fol.. Counsel attending master Master's fees on report Drawing, eng., and fil. report, 5 fol., Motion for final order Drawing, eng. and filing order, 4 fol.. Term fees, &c , Drawing, eng. tax. and fil. costs, 2 fol., SCIRE FACIAS, ante 239. Motion for order for scire facias Drawing, eng. and filing do. 3 fol Drawing, eng. and sealing sci. /a. 4 fol. Filing do. and return Sheriff's fees (same as on subpoena). Motion for final decree Counsel fee on argument Drawing, eng. and filing decree, 4 I'ol FEIGNED ISSUE, ante. 245. Motion for orderfor feigned issue. . . Argument fee on do Drawing, eng. and filing do. 5 fol LUNACY, ante, 249. Retaining fee for solicitor and counsel. Drawing, eng. and fil. petition, 2 fol.. Drawing, tak. and fil. affidavits, 2 fol., Motion for order for commission .... Drawing, eng. and filing do. 1 fol. . . Drawing, eng. and sealing com. 5 fol., Fil. do. and return, and com'rs fees, Drawing and engrossing venire, 3 fol.. S.&C. .60 4.00 1.80 .20 1.50 .90 3.00 1.50 1.20 1.60 .60 1.50 .90 1.20 1.50 3.00 1.28 1.50 3.00 1.50 4.00 .60 .40 1.50 .30 1.50 .90 Ch. Clk. Als. 1.34 1.34 1.34 .40 1.34 1.34 1.34 .40 .12 .12 .12 .36 .12 .12 .92 .12 .24 .12 .12 .12 .12 1.14 .24 .20 4.00 1.50 .40 6.00 22 330 SCHEDULE OF COSTS. Filing do. and ret. and sheriff's fees, Counsel attending inquisition Twenty jurors' fees, 25 cents each.. Drawing and eng. inquisition, 10 fol., Filing inquisition and ret. 24, reg. 80, Motion for decree Counsel on hearing and ch. on decree. Drawing, eng. and filing decree, 3 fol., Copy of proceedings, 20 fol Certificate and seal Term fees, &c Drawing, engrossing, taxing and filing costs, &c. .3 fol , . . S.&C. IN DITOBOE, PARTITION, CORPORA TiONS, &c., the costs are the same as in other proceedings, except $4 for attending master. ANSWER BY seo'nd mor'gee, ante 156. Eetaining fee for solicitor and counsel, Drawing, entering andfil. appearance, Drawing, eng. and fil. answer, 10 fol., Drawing, taking and fil. affidavit to do., Counsel attending master Master marking defendant's exhibits, Counsel on hearing Term fee, &c. (each term) Drawing, engrossing, taxing and filing costs, &c. 2 fol 3.00 3.00 .80 4.00 .96 1.60 .90 4.00 .20 3.00 .20 3.00 4.00 i 1.60 .60 Ch. Clk. .'75 2.50 .24 1.04 .32 .12 1.60 .25 .92 .32 .12 .12 Als. 2.70 5.00 .92 .20 .60 An argument fee of $3 is allowed on every decree pro confesso and on every litigated motion. The solicitor is allowed, in his taxed bill, for such copies of pleadings, orders &o. as he may have procured in the cause, and which were necessary in con- ducting it. Costs are allowed for only two rules for hearing in a cause, unless the cause has been set down oftener by the special order of the court. COSTS. 331 COSTS. Where a deed is given, under an order of the court, by a guardian, a fee of $3.50 is allowed. By act of March 14, 1871, the sheriflf is allowed an additional twenty-five per cent, for all services by him performed. By act of March 6, 1863, legal notices pubUshed in newspapers are to be charged at 60 cents a folio for the first insertion, and 30 cents a folio for each subsequent insertion. Where two motions are embraced in one order or decree, costs are allowed for one motion only. Costs are not allowed for a decree pro confesso and a final decree, where the party is entitled to both at the same time ; he should include both in one decree. Where the defendants appear before a master, and make exhibits, or have witnesses sworn and examined, the master should charge such defendants with the fees of such exhibits and depositions, and so endorse the fact on the back of the report. In taxing costs between soUoitor and ohent the legal fees are allowed for all services actually performed, and for all rules entered, whether they are allowable as against the adverse party or not. Costs are not allowed against the adverse party for drawing agreements. SeeHuks in Chancery, title " Costs." DIG-EST OF EQUITY OASES. O N P L E.A DING L Parties. II. Pleadings. III. BiU. IT. Supplemental Bill. Y. Bill of Review. VI. Bill of Interpleader. VII. Plea. VIII. Demurrer. IX. Answer. X. Replication. XI. Feigned Issue. I. PARTIES. 1. If the complainants had been brought in as parties defendants to the original bill, the.y might have set up the defence of usury, and have relied on the letter of the statute. But coming in as complain- ants, and setting up the defence of usur}'', the general rule, that they must offer to pay the amount actually due, applies to them. — Miller vs. Ford, Sax. 358. 2. A stranger cannot sue out a commission m tne nature ot a writ de lunatico inquirendo, nor can he make himself party to it by appli- cation to this court ; he has no right to interfere in a proceeding of this nature. The party who seeks to quash the inquisition, or traverse the finding of the jury, should have an actual interest, legal or equitable, which would be endangered, by the finding of the jury, and that should be manifested to the court ; in such case, the appli- cation will be granted — In re. Peter Conover, Sax. 19. 3. A person found lunatic may appearand traverse i-he inquisition by attorney, but an idiot must appear before the court in person. — tb. 4. A complainant in a suit for the mere purpose of recovering a legacy, is not bound to make the representatives of a deceased co- executor, parties, when he expressly charges that all the assets of the testator are in . the hands of the surviving executor ; but such representatives are proper parties whenever such co-executor is charged with having assets ; or when fraud or collusion is charged between the executors, or in a case of involvency. — GoMe vs. Andruss, 1 G. 66. PABTIKS. 333 5. Upon the same principle debtors to the testator may he made parties to reach assets in their hands. — ib. 6. This is a privilege given to complainant, to go beyond the party legally bound, to reach assets in the hands of other persons, out of which his debt ought to be paid. But if such persons have no assets, and there be no other special ground assigned, they are not proper parties. — ib. 7. The mortgagor, having disposed of the equity of redemption, and having no interest in the mortgaged premises, is not a necessary party to a bill for foreclosure. — Vreeland vs. Loabat, 1 G. 104. 8. Can relief be had in this court against the representatives of one of two joint debtors, without making the other joint debtor a party, and showing by a return of nulla bona that the money could not be recovered against her at law ? — Hazen vs. Durlings adm'r. — 1 G. 133. 9. An administratrix cannot be made a party complainant in a bill with her co-administrators, without her consent, and if she claim adversely to the prayer of the bill, tue court, upon motion, will direct her name to be stricken from the bill as complainant, and to be inserted as a defendant. — Dare^s admW. vs. Allen's exW , 1 G. 288. 10. The general rule, that all persons who have an interest in the decree, must be made parties, has its exceptions, and will be con- trolled and regulated in the discretion of the court. — Stillwell vs. McNeeley, 1 G. 305. 11. A mere nominal trustee cannot bring a suit in his own name, without joining his cestui que trust with him. — ib. 12. Where the assignment of a judgment constituting a lien on mortgaged premises is absolute and unconditional, the assignor is not a necessary party to a bill for foreclosure. — Bruen vs. Crane, 1 G. 347. 13. The multiplication of parties should be avoided when they have no interest at stake in the cause. — ib. 14. A mortgagor who has parted with all his interest in the mort- gaged premises is a proper though not a necessar}'' party to a bill of foreclosure. — Chester vs. King, 1 G. t05. 15. It may indeed be said, technically speaking, that the fee in the mortgaged premises descends, to the heir at law ; but he is a bare trustee for the personal representatives, and as a general rule need not be a party to a bill filed by the executor for the foreclosure and sale of the mortgaged premises. — Kinna vs. Smith, 2 G. 14. 16. Legatees who have assigned all their interest are not neces- sary nor proper parties to a bill filed by the assignee for a recovery of the legacies. — King vs. Berry's exr's., 2 G. 44. 334 PARTIES. 17. A, mortgagee who has assigned his mortgage by an instrument not under seal, and in whom the legal title hO the mortgaged premises still remains, is not a necessary party to a bill of foreclosure filed by the assignee. — Parker vs. Stevens, 2 G. .56. 1 8. It seems that the rule requiring all the parties in interest to be before the court, is to he regarded rather as a rule of convenience ; and where the legal right is entirely technical, and no beneflcial purpose can be answered by enforcing the rule, it will not be fol- lowed. — tb. 19. Where a bill is filed for a surplus, or residuum, to be paid after the payment of debts and legacies or other prior incumbrances, the creditors, legatees or other prior incumbrances need not be made parties. — Vanderpool vs. Daven,port's ex'r., 2 G. 120. 20 And the rule is not altered, though the legacies are not to be paid immediately, and though a part of the residuum may by possi- bility be wanted to make up a deficiency arising from accident or loss happening before payment. — ib. 21. But all persons interested in the residuum though their interest depends on a remote contingency, must be made parties. — ib. 22. No person against whom a decree cannot be had, should be made a party — ib. 2.3. Upon a bill for a legacy, if the lands charged with the pa3^tnent of the legacy have been partitioned and are held in severalty, and the bill seeks to charge the balance due in the legac}'' upon one moiety of the land, which in equity is bound to satisf)"^ it, it is unnecessary to make the owners of the other moiety of the land parties to the bill. — Van Winkle vs. Van Houten, 2 G. 172. 24. On a bill filed by an heir, to avoid the deed of his ancestor, it is necessary that all the heirs of the grantor should be made parties to the bill. — Young vs. Bilderback, 2 G. 206 25. Where the new matter charged in a supplemental bill does not affect the rights or interests of a more formal party to the original bill, it is not necessary to make him a party to the supplemental Vill—Alkn vs. Taylor, 2 G 435. 26. Where a suit is brought by a residuary legatee, lor a settle- ment and distribution, all the residuary legatees, or their representa- tives, must be made parties. — DeHart vs. DeHart's ex'rs, 2 G. 471. 27. And the rule will not be dispensed with, though one of the residuary legatees has died, leaving his estate insolvent, and no ad- ministrator has been appointed — ii. 28. Where one of two co-executors has died, his representatives are not necessary parties to a bill against the surviving executor for settlement and distribution. — ib. PARTIES. 335 29 The purchasers of real estate are entitled to be heard, before any decree is made impeaching the validity of the sale under which they claim title. — Thompson vs. Engle, 3 G. 271. 30. The undeniable general rule in equity is, that a nominal trustee cannot bring a suit in his own name, but must join with him the names of the persons having the beneficial interest. — Willink vs. Mor- ris Canal Co., 3 G. 377. 31. But the court will, in its discretion, dispense with a strict adherence to the rule, where by complying with it, great incon- venience or unnecessary expense would be incurred. — ib. 32. Where a banker became the trustee and mortgagee for bond- holders with whom he had negotiated a loan in favor of the mort- gagor, held, that he might file a bill to foreclose, in his own name, without making his cestui que trusts parties. — ib. 33. The case is excepted out of the general rule on the ground of the great incovenience to which a compliance with it would subject the complainant. — ib. 34. The true additional parties, if any, would be the owners of the stock at the time of filing the bill To require them to be made parties would be almost a denial of the aid of the court. — tb. 35. Nor is it necessary that the complainant should state on the face of his bill, in order to warrant the filing of the bill in his own name, that the cestui que trusts are so numerous that they cannot, without great inconvenience, be brought before the court. The character of the transaction sufficiently appears upon the face of the mortgage as disclosed in the bill. — ib. 36. Held, also, .that it was a part of the original contract, between the mortgagors and mortgagee, that the lender, should, in this trans- action, be represented by the mortgagee, and by him alone. The court will not, therefore, oblige him, in seeking to recover the money, in the lace of this agreement, to come into court in the names all the lenders. — ib. 37. The assignee of a bankrupt, or an insolvent, is a necessary party to a bill affecting the property of such bankrupt or insolvent, because the property, by the assignment, passes to, and vests in, the assignee. — ib. . ■ 38. Are the receivers appointed under the act, entitled " An act to prevent frauds by incorporated companies," necessary parties to a bill affecting the property of the company, of which they are appointed the receivers ? — ib. 39. Where the receivers were appointed after a decree pro con- fesso had been taken against the corporation, by which the right of the complainant to recover was established, Held, that the receivers 336 PAETIE8. were not necessary parties, and that an objection made by a tliird party, to the bill, for want of proper parties, on that ground, would not be sustained. — ih. 40. If the receivers should ask to be substituted as defendants, with the view of setting up a defence, the court would permit them to do so at any stage of the proceedings. — ib. 41. Upon a bill of foreclosure, a subsequent mortgagee upon the same premises, though a mere trustee, is a necessary party. It is not enough that the cestui que trusts are before the court. — ib. 42. But where the property subject to the subsequent mortgage was small, and cestui que trusts were before the court, an objection for want of parties, on the ground that the trustee was not a party, was overruled, inasmuch as the right of the trustee to redeem would not be bound by the decree — ih. 43. If one of several joint mortgagees dies, his i-epresentatives must be made parties to a bill affecting the rights or interests of the mortgagees. Such bill cannot be filed by, or against, the survivors only. — Smith vs. Trenton Delaware Falls Co., 3 G. 505. 44. If the effect of granting the prayer of a bill will be to relieve the receivers of an incorporated company from a portion of their duties, and to effect, pro tanto, a removal of the receivers, they must be made parties. — ih. 45. Semble. On a bill filed by a receiver for the creditors and stockholders of a corporation, it is not necessary' to make them parties. — Mann vs. Briice, 1 H. 413. 46. On a bill filed by a creditor of a testator, upon a bond signed by the testator and a surety, to set aside a sale of lands made by the executor and devisee, and to subject the land to the payment of the bond debt, held, that the surety was not a necessary party to the suit. — Exe. of Cooper vs. Cooper, 1 H. 498. 47. "Where a bill was filed for a specific performance of an agree- ment for the sale of land, and an opinion was pronounced in favor of the complainant, who died before the decree was signed, leave was given for the heirs at law to file a bill of reviver, making the executor and persons interested in the personal estate of the deceased, parties. — Lanning vs. Cole, 2 H. 102. 48. Several complainants may unite in a bill if the nuisance is common to all ; but they have no right to make a joint complaint for particular injuries, confined to one, or two, of the complainants. They cannot unite their distinct and individual causes of complaint, and by their combination make a case of nuisance, which separately would not establish the complaint. — Davidson vs. Islian, 1 Sto. 186. 49. But a bill may be filed by several complainants, where the matter complained of is, prima facie, a common nuisance. — ib. PARTIES. 337 50. Two complainants with distinct causes of action, alleging distinct injuries, cannot unite in the same bill. To authorize them to join as complainants, their cause of action must be the same, the injury the same, and they must be entitled to the same remedy. — Plum vs. Morris Canal Co., 1 Sto. 256. 51. A complainant may properly make every one a party who is a participator in the fraud. He has a right to do this for the' purpose of discovery ; and the general rule is, that he has a right to hold his injunction until he obtains that discovery. — Robinson vs. Davis, 3 Sto. 302. 52. Where a father makes an agreement in reference to his infant child, from which benefits are to accrue to the child upon his per- formance of the agreement; after performance, the child may in his own name, file his bill to enforce the agreement. The party for whose benefit the agreement is to be performed, and especially if an}' valuable portion of the consideration has been rendered by him, has the legal right to enforce it. — Van Dyne vs. Vreeland, 3 Sto. 371. 53- Husband and wife gave a bond, and mortgiige on the property of the wife to secure the bond. The husband died. On a bill to foreclose the mortgage, neither the heirs at law, nor the personal representatives of the husband, are necessary parties, — Savings Association vs. Vandevere, 3 Sto. 382. 54. One who is next of kin, or legatee, or creditor, cannot file a bill against the surviving partner of a testator, or intestate, for the sole purpose of compelling him to account and settle, with the per- sonal representative of the deceased partner, the partnership accounts. — Harrison vs. Righter, 3 Sto. 389. 55. A creditor of the testator or intestate need not make any body but the'personal representative a party in a bill to recover his debt ; but if there are any persons who have possessed the estate, or any debtors of the deceased, in collusion with the representative, the creditor may make them parties, and follow the assets, and demand an account against them. — ih. 56. In suits by a legatee, next of kin, or creditor, against an executor or administrator, a debtor of the deceased is a proper party, where a special case is made, showing that there is, in the particular case, a propriety in departing from the general rule in order to afford the complainant adequate relief. When there are unsettled accounts with a surviving partner of the deceased, it is a special case, and an exception to the general rule, and such partner is a proper party, in order to take an account of the personal estate entire. — ih. 57. Individuals entitled to the fund, and interested in taking the accounts which constitute it, are necessary parties to the suit. — Keeler vs. Keeler, 3 Sto. 458. 338 PAETIES. 58. A decree should be conclusive upon all persons interested, and all such persons should be parties. — ih. 59. The party who asks the aid of the court, must show some special ground of equity. The mere fact of an individual encroaching upon the street by a building, does not confer upon every one owning a house upon the street a right to file a bill. — Bechtel vs. Carslake, 3 Sto. 500. 60. ^f the owner of the premises is not a party to the proceedings of foreclosure, the equity of redemption is not affected by the decree. — Brundred vs. Walker et. al., 1 B. 140. 6 1 . "Who are necessary parties to a bill ? — Henderson vs. Miller, 1 B . 140. 62. The cestui que trusts of a mortgagee are not necessary parties to a bill of foreclosure. — N. J. Franklinite Go. vs. Ames, 1 B. 507. New parties cannot be joined to a suit in the Court of Appeals. —ib. 63. All persons whose interests are involved in the issue, and who must necessarily be affected by the decree, are necessary parties.— Pence vs. Pence, 2 B. 252 64. Persons having adverse or conflicting interests in reference to the subject matter of the litigation, ought not to be joined as com- plainants in the suit. — Johnson vs. Vail 1 McC. 423. 65. If the husband and wife join in a suit as plaintiff's, or in an answer as co-defendants, it will be consideredas the suit, or defence of the husband alone, and it will not prejudice a future claim by the wife in respect of her separate interest, nor will the wife be bound by any allegations therein in any future litigation. — ib. 66. In a suit hy a wife for her separate estate, the husband is a necessary defendant.— I'J. 67. A party, who has obtained a judgment, before the filing of a bill by one creditor to set aside a conveyance as fraudulent, should be made a party to that suit, and cannot be deprived of his equitable rights by the wilful or negligent omission of the complainant in that suit to make him a party. — Voorhees vs. Reford, 1 McC. 155. 68. The second mortgagee is a necessary paity to a suit to fore- close. As a general rule there can be no foreclosure unless all the persons entitled to the mortgage money are before the court. A person entitled to a part only of the mortgage mone3^ cannot file a bill to foreclose a mortgage as to his own part of the money. All the beneficiaries should be made parties as well as the trustee. — Chapman vs. Hunt, 1 McC, 149. PABTIES. 339 69. The original mortgagee E. is not a necessary party to this suit, because it does not appear that there was any surplus after the imme- diate object of the assignment of mortgage had been accomplished. It cannot be assumed, on the pleadings and evidence in the case, that R. has any interest in the mortgage debt. — Woodruff vs. Depue, 1 McO. 168. VO. If there appears to be such a surplus, and the complainant desires that R. should be concluded by the decree, he should be made a party. — ih. 71. It is not competent for the complainant, who has omitted to make R. a party, to present that fact as an objection to the equitable protection asked for by the defendant M. — ih. 72. If the complainant, in a suit for the foreclosure of a mortgage, stands in the position of a trustee for a third person, to whom he is- bound to account for payments made to 'him, and such third person is not made a party to the suit, the bill is defective for want of necessary parties, and should be dismissed. — Large vs. Van Doren, 1 McC. 208. 73. No principle of equity pleading is better settled than that there can be no foreclosure unless all the persons entitled to the mortgage money are before the court. The cestui que trust should be a party to the bill as well as the trustee. — ib. 74. Wherever there has been a devise of real estate, and the design is to to revive the suit, either in favor of or against the devisee, the heir and devisee must both be made parties. — Peer vs. Oookerow, 1 McC. 361. 75. The executors of the original complainant are not necessary parties to a bill of revivor, although by her will she directed them to prosecute the suit, if, as executors, they have no interest in the subject matter or in the event of the suit. — ib. 76. The husband is a necessary party to a bill filed by the grantee of the husband against the wife, for the partition of lands alleged to have been held by the husband and wife as tenants in common. The wife can only defend the suit jointly with the husband, except under special circumstances. — McDermott vs. French, 2 McC. 78. 77. A wife, though living separate from her husband, even though she has been separated by deed, cannot be sued alone ; her husband must be joined, if only for conformity. — ib. 78. In suits brought by executors, the rule in equity is, that only the executors who have proved the will must be parties. — Rinehart's ex'rs vs. Rinehart, 2 McC. 44. 79. On a bill filed by the heirs at law of a deceased vendee by parol contract, against a purchaser by a subsequent deed from the vendor, charging such purchaser with notice of the parol contract of 340 PARTIES. sale, and praying a decree of specific performance against such pur- chaser, it was held, that the administrator of the vendee was a necessary party to such a suit where the personal estate was small, the estate still unsettled, and it does not appear that the debts of the deceased vendee have been T^zhA.^Downing vs. Risley, 2 McC. 93. 80. All persons interested in the contract should be made parties to the proceedings. — ib. The fact that the heirs are also bona fide creditors of the vendee, however it may strengthen their claim to equitable reliet, cannot aid the defect in the bill for want of parties. — ib. 81 The defendant did not take his title directly from the vendor, but from one S. P. M., to whom the vendor made title, and who was originally a party to the bill, but died pending the suit. Held, that the conveyance by S. P. M. to the defendant was a mere execution of the trust, and that it was unnecessary to malce the representatives of S. P. M. parties to the suit. — ib. 82. Where a mortgage is given or assigned for the payment of a debt due to two or more jointly, on a bill to foreclose filed by the surviving obligee, the executor of a deceased co-obligee, need not necessarily be joined as a complainant. — Freeman vs. Scofield, 1 C. E. G. 28. 83. When there are conflicting claims between the parties in interest in the mortgage debt, the surviving obligee may file the bill in his own name, and make the executor of the deceased co-obligee a defendant. — ib. 84. Cestui que trusts are not, it seems, necessary parties to suits against trustees, to compel the specific performance of contracts, except where some question arises touching the power of the trustees to execute the contract, or their authority to act under it. — Vandoren vs. Robinson, 1 0. E. G. 256. 85. But where a bill in equity involves the title of the cestui qu,e trusts to the property in dispute, or where they are interested, not only in the fund or estate respecting which the question at issue has arisen, but also in that question itself, they are necessary parties. — ib. 86. An objection for warn of proper parties, taken at the hearing, will not prevail, unless such parties are necessary to the final determi- nation of the cause. — ib. 87. Where the sole design of the bill is to have the individual property of one partner, alleged to have been fraudulently conveyed away by him, applied in satisfaction of a judgment against the firm, another partner from whom no discovery is sought, and against whom no relief is prayed is neither a necessary nor a proper party. ■ — Randolph vs. Daly, 1 0. E, G. 313. PAKTIES. 341 88. A wife is a proper party to a bill filed to set aside convey- ances of the husband's property made tq her, or in which she has- joined, and which are charged to have been voluntary and fraudulent as against creditors of the husband. — ib. 89. If the defendant is a necessary party to some part of the case as stated, he cannot object that he has no interest in other transac- tions constituting a part of the entire case. — ib 90. The first mortgagee is not a proper party to a bill by a sub- sequent mortgagee, if the sole design of the bill is a foreclosure of the equity of redemption. — liudnit vs Nash, 1 C. B. Q-. 550. 91. When prior encumbrancers are permitted to be made parties to a bill for foreclosure and sale of mortgaged premises, if the first mortgagee, defendant in such bill, comes in with his mortgage, he- simply assents to the relief prayed for by the complainant. — ih. 92. Every one is a necessary party to a bill whose joinder is necessary to the settlement of the complainant's rights. — Irick vs^ Black, 2 C. B. G. 190. 93. Encumbrancers are not necessary parties to a bill for parti- tion. — Low vs. Holmes. '2 C. B. G. 148. 94. The residuary legatee is not a necessary party to a bill filed by a legatee or creditor, to establish a claim against the estate of a testator ; the executor alone is to be made defendant. — Melich vs. Melich's, ex'r., 2 C. E.G. 156. 95. Where the executor is disqualified by his situation from repre- senting the interests and protecting the rights of the residuary legatee^ he will be admitted to defend the bill in person. — ib. 96. No answer or decree being sought against the legatee, the bill need not be amended to make him formally a party. — ib. 97. To a bill filed for discovery and relief, under acts of Marc& 20th, 1845 (Pamph. Laws 141), aiid April 12th, 1864 (Pamph. Laws 704), all persons, through whom the title of the property charged to be held in trust had passed, and who knew therefore the truth of the fact to be enquired into, arc proper parties. Such a bill is not liable- to the objections of multifariousness, on the ground that other facts may be inquired into with which they have no concern, and that the receiver may receive other property than that in which they are interested. — Whitney vs. Bobbins, 2 C. E. G. 360. 98. All parties in interest in the subject matters of a suit, and who are necessary to the protection of other parties, are necessary parties. — Hicks vs. Campbell, 4 C. E. G. 183. 99. In a suit to set aside a conveyance to a trustee to hold in trust for one person for her life, and, at her death, to such of her children as she may appoint, such children as the cestui que trust may have, 34:2 PLEADINGS. are not necessary parties ; their interest is too uncertain and con- tingent. — Booraem vs. Welh, 4 C. E. G. 87. 100. Where it appears at anj' time before final decree, ihat a per- son not made a party is a necessary party to the suit, courts of equity ■will, of their own motion arrest the proceedings, that such person maybe made a party. — Van Keuren vs. MrLaughlin, 6 C. E. G. 163. 101. A person who has an interest in property which is the sub- ject matter of a suit, is not a necessarjr or proper party, if his interest cannot in any way be affected by the result. — ih, 102. No person is a necessary party against whom the complain- •ant is entitled to no relief, and as against whom, at the hearing, the bill must be dismissed. — ih. 103. Proper parties are not always necessary parties, and where no objection to want of a party as a necessary party, was made below, Tior such want made a ground of appeal, this court will not permit such question to be raised, unless the party omitted is an indispen- sable party and justice cannot be done without him. — Berryman vs. Graham, 6 G. E. G. 370. 1 04. A mortgagor, after his equity of redemption is sold, is not a necessary party to a bill for foreclosure. — Andrews vs. Stelle, 7 C. JB. G. 478. 105. In equity, all suits must be in the name of the party reaUy interested, and when the name of an agent or trustee is used, the -cestui que trust must be made complainant with him. — Nichols vs. Williams, 7 0. E. G. 63. 106. A corporation is a necessary party to a suit in equity, brought in the name of the president, to enforce a contract signed by him as president, and on behalf of the corporation. — ib. II...PLEADINaS. 1. The rules of pleading in a court of equity are not so technical and precise as in courts of law. The powers of the court, and modes of administering relief, authorize and require greater liberality Still, Avhere principles have, by repeated adjudications become settled, it is quite as important that these principles should be preserved in this, as in any other court. — Marselis vs. Mon-is Canal Co., Sax. 31. 2. An allegation of payment in Chancery pleading, is sustained by proof of satisfaction in any way, as by set off, award and satis- iaction, &c. — King vs. King, 1 Sto. 44. PLEADINGS. 34S 3. A mere clerical mistake, the court would permit to be corrected instanter upon the suggestion, unless, by any possibility the defend- ant had been misled by it. — Howell vs. Asiimore, 1 Sto. 82. 4. Certainty to a common intent is sufiScient in bill or answer. — Paterson & H. R. R. Co., vs. Jersey City, 1 Sto. 434. 5. If a fact is stated anywhere in the stating part of the bill, with legal certainty, and is material, it is well pleaded, and therefore admitted by the demurrer. — ib. 6. Inasmuch as is suflSciently direct and positive ; more direct than any statement under a whereas in a declaration, than which, a bill in equity need not be more certain. — ib. I. A disingenuous bill which is sworn to, is quite as obnoxious to the censure of the court, as a disingenuous answer. — Herbert vs. Scqfield, 1 Sto. 492. 8. A bill may be multifarious, and yet, if the parties do not demur to it, but answer the bill, and submit the case upon the pleading and proofs, the court will overlook the defect ; provided a decree can be made, without causing any embarrassment to the parties as to any other rights they may have, or to the parties or court, in executing the decree that the complainants may be entitled to upon the case as it stands. — Hays vs. Doane, 3 Sto. 34. 9. If the bill alleges such a , part performance as will take the parol agreement out of the statute, a demurrer is such an admission of the part performance, as will preclude the defendant from the benefit of the statute. The bill must state the facts which are relied upon as part performance. When the facts are admitted by the demurrer, the court must determine, whether the facts relied upon do constitute part performance. — Van Dyne vs. Vreeland, 3 Sto. 371. 10. In a court of equity, the parties are confined to the issues made by the pleadings, as in a court of law. — Brantingham vs. Brantingham, 1 B. 160. II. As a general rule, the complainant, under a prayer for general relief is entitled to any specific relief warranted by the frame and structure of his bill. — Williamson C, Belleville M. Ins. Co. vs. Van Winkle, 1 B. 333. 12. The objection arising from lapse of time, is a mere matter of limitation, which must be pleaded, even though the objection appears upon the record. — Peer vs. Cookerow, 2 B. 136. 13. Evidence relative to matters not stated in the pleading, is impertinent. — Vansciver vs. Bryan, 2'B. 434. 14. "When usury is set up as a defence to a mortgage, in the absence of more specific allegation, and of any averment of the 344 PLEADINGS. place of the contract, the defence must be limited to a violation of the statutes of this state against usury. — Campion vs. Kille, 1 McC. 229. 15. Courts will not, ex officio, take notice of foreign laws, and consequently they must, when material, be stated in the pleading. — ih. 16. If the defendant designed to rely upon the fact, that the con- tract was usurious under the laws of Pennsylvania, it was incumbent upon him to show it, as well by his pleading as by his proof. — ib. 17. When usury is rehed on as a defence to a mortgage, in the absence of any specific allegation, and of any statement of the place where the contract alleged to be usurious, was made, it will be intended, that the defence made by the answer is, that the contract is in violation of the statutes of this state, and to that defence the evidence will be limited. — Andrews vs. Torrey, 1 McC. 355. 18. It is a well settled doctrine of the court, that if the defence relied on is, that the contract is usurious under the laws of any other state in which the contract may have been made, it must be so averred in the pleading. — ib., also Atwater vs. Walker, 1 C. E. G. 42. 19. Bill on a mortgage — answer usury — proof, that the contract was executed in Pennsylvania, ffeld, that the proof did not support the answer. That this court will not officially recognize the usury laws of other countries. That this court would not reverse to enable the defendant to amend his pleadings and adduce his proof. — Campion vs. Kille, 2 McC. 476. 20. Objections to the pleadings which involve no substantial interest, are not allowed upon the final hearing. — Freeman vs. Scofield. 1 C. E. G. 28. 21. A complainant cannot compel a demurrer upon the facts as stated in the bill, if the}^ are imperfectly or inadequately stated. The defendant must be at liberty to plead the facts upon which he relies for his defence, in such form and with such detail as to raise the real question which he desires to present. — ib. 22. An award constitutes no valid defence to an action, unless it clearly appear that the subject matter of the suit was within the award. — ib. 23. A court of equity will not deprive a defendant of his defence upon a mere technicality of pleading, when its admission affects prejudicially no right of the pl9,intitt'. — Moores vs. Moores. 1 C. E. G. 275. 24. Certainty to a common intent is all that is ordinarily required in pleading in equity. — Randolph vs. Daly, 1 C. E. G. 313. ttEADlNGg. S4:5 25. New matter, by way of justification or avoidance of the matters contained in the bill, will not avail the defendant upon the hearing upon bill and answer. — The Society vs. Low, 2 C. E. G. 19. 26. The court will presume that the pleadings in the court below were as recited in the decree. — Whyte vs. Arthur, 2 C. E. G. 521. 27. It is not necessary to set up in the pleadings, as a defence, the statute of frauds, unless the contract against which it is set up, is that on which the relief prayed for is founded. — Force vs. Dutcher, 3 C. B. G. 401. 28. No defence can be allowed at the hearing which is not set up in the answer, and no evidence can be received on any issue not ^ raised by the pleadings. — Burnham vs. Dolling, 3 C. E. G. 132. 29. All matters not material to the suit, or, if material, which are not in issue, or which, if both material and in issue are set forth with great and unnecessary prolixity, constitute impertinence. — C. & A. B. R. Co. vs. Stewart, 4 C. E. G. 341. 30. Eecitals from a bill filed by the defendant in another suit, which might involve contradictions impairing his credibility as a witness, and which, if admitted by the answer, would have no tendency to establish the complainant's claim to the relief sought in his bill, are impertinent. — ih. 31. The husband, being rightly joined, it is no objection to a bill for discovery of matters in which the wife only is interested, that the defendants are husband and wife. — Metier vs. Metler's. adminWs., 4 C. E. G. 457. 32. Where the defendant neglects to make the objection by plea, answer or demurrer, of the want of parties who are only necessary to protect him from further litigation, the court, in its discretion, may refuse to sustain the objection at the hearing, or to require the com- plainant to add new parties in that stage of the suit. The bill cann ot be amended by adding such parties in this court, and the record will not be remitted for that object when no purpose of substantial justice will be thereby answered. — Cutler vs. Tutile, 4 C. E. G. 549. 33. If executors are alleged to have sold lands to two different persons, at different times, without any connection in the transaction, it is no valid objection to a bill to set aside the sale to one of them, that the other vendee is not made a party. It would be multifarious- ness to blend the two matters in one suit. — Booraem vs. Wells, 4 0. E. G. 87. 34. Two remedies at law, one against the insured and the other against the railroad company, by whose carelessness the premises were fired, and by whom damages have been paid the insured, cannot be pursued in one suit ; neither the insured nor the railroad company is a proper or necessary party to a suit against the other ; and in no 23 346 MLL. way are they jointly liable so that a decree could be made or a judg- ment given against both. — Monmouth Co. Fire Inn. Co. vs. Hutchinson, 6 C. E. G. 187. 35. When the suit is by bill against both, if the only prayer were for a decree for the payment of the money, a demurrer would be sustained for misjoinder. But, under the general prayer for relief, the bill will be retained to give such equitable relief as the facts may warrant. — ib. 36. In a suit against the railroad company, holding a release given by the insured, when the company knew the insured had received the amount of the insurance, the insured would be a proper if not a necessary party. — it. - 37. The defendants who answered the original bill having in their answers specifically alleged a want of equity in the plaintiff's case : Held, that it was proper to consider and decide, on demurrer to the supplemental bill, the question thus raised. — Williams vs. Winans, 7 C. E. G. 573. III...BILL. 1. The court will not permit several plaintiffs to demand by one bill, several matters, perfectly distinct and unconnected, against one defendant ; nor one plaintiff to demand several matters of distinct natures, against several defendants. — Marselis vs. Morris Canal Co., Sax. 3l. 2. Where the bill is multifarious, an injunction may be refused on .that ground. — ib. 3. Where there is no privity between the complainants ; no general right to be established as against the defendant ; no common interest in all the complainants centering in the point in issue in the cause ; the bill cannot be sustained. — ib. 4. A bill by several to compel the specific performance of a contract for the sale of real estate, in which the complainants hold distinct rights, cannot be sustained. — ib. 5. Where the evidence presents a case entirely diiferent from that made in the bill, it must be dismissed. — Zule vs. Zule, Sax. 96. 6. An ejectment bill, technically so termed, is one brought simply for the recovery of real property, together with an account of rents and profits, without setting out any distinct and substantial ground of equity jurisdiction a,nd is demurrable, there being no proper ground of equity. — Crane vs. Conklin, Sax. 346. BtLt.. 34? 7. But a bill to set aside a fraudulent conveyance, and, filed by those who, without the incumbrance of such conveyance, are undoubt- edly entitled, is altogether different from an ejectment bill, and comes within the ordinary powers of this court. — ih. 8. To enable an executor to maintain a suit in this court, it is necessary that the fact of the probaie of the will should be stated in the bill. — Pelletreau, exV., vs. Rathhone, Sax. 331. 9. Alleging in the bill, that the complainant hath taken upon him- self the burthen of executing the trusts and duties required of him by the will, and become duly qualified as executor, is not suffi- cient. — ih. . 10. Stating in the bill that the will has been duly proved in the state of New Jersey, might be sufficient, without specifying whetl^r such proof was in either of the Orphan's Courts, or before the ordi- nary. — ih. 11. Where a bill of revivor and supplement was demurred to for multifariousness, but the bill of revivor corresponded with the original bill, bruiging before the court the person representing the parties to that bill, and it not appearing that the complainant relied on the supplemental matter, it was held good. —ih. 12. The bill should be framed to meet the case, so that the allegata and probata may agree with reasonable certainty. — Smith, Ad'mr. vs. Axtell, Sax. 494. 13. Where the bill goes on an original agreement in writing, and does not mention the loss of it, so as to admit of any evidence in lieu of it ; parol evidence of its contents, or a paper purporting to be a copy of it, is not sufficient ; but the pleadings may be amended to get at the merits of the case. — ih. 14. Where a bill filed against a surviving executor for a legacy, charges that the executors rendered a joint account to the Orphan's Court for final settlement, which was allowed, and also charges, that all the assets, are in the hands of the surviving executor, the latter charge is material and well pleaded. — Oohle vs. Andruss, 1 G. 66. 15. A charge of adultery and a charge of extreme cruelty, cannot be united in the same bill. — Decamp vs. Decamp, 1 G. 294. 16. Nor is it proper to blend in one bill, an application for a divorce, with a prayer for independent relief grounded- on charges which require an answer under oath. — ih. \1. A bill for a divorce may contain a prayer for alimony, and any charge made in the bill respecting property, which might affect the question of alimony, would be proper. — ih. 348 BILL. 18. On a bill to avoid a title as fraudulent, if it appears that the complainants have no title, they will not be permitted to impeach the title of the defendants. — Diehl vs. Page, 2 Gr. 143. 19. If an injunction is prayed for in the bill, but is omitted in the prayer for process, an injunction ought not to issue without an amendment of the bill. — Baily vs. 6nks, 2 G. 245. 20. The rale, that in injunction bills the particular title and interest of the complainant must be set forth, is more especially applicable to cases of waste. — Van Winlde vs. Curtis, 2 G. 422. 21. But in cases of trespass and nuisance, the title and estate of the complainant are set out with sufficient certainty in a bill for an injunction, if the complainant alleges himself to be the owner of the premises in fee simple by purchase, and to be in possession. — ih. 22. A greater degree of precision in cases of trespass or nuisance is not required, especially where it is not alleged in the bill, that the defendants make any pretense of right in themselves. — ih. 23. Where the complainant in an injunction bill, relies on his own oath, the charges in the bill, and the affidavit to verify them, should be direct and positive. They must not be such as can only be made sufficient by the aid of presumption. — Perkins vs. Collins, 2 G. 482. 24. If the contract is several, it is no ground of objection that the contract made by the complainant with divers defendants, be described in the bill of complaint, as a contract between the com- plainant and defendant, without reference to the other parties. — New Marbadoes Toll Bridge Co. vs. Vreeland. 3 G. 157. 25. In a bill filed for an injunction to restrain waste or irreparable mischief, it is not necessary to set out the complainant's title at length. — Shreve vs. Black, 3 G. 177. 26. A complainant, by stating the injury to have been committed under allegation of title, does not state himself out of court. — ib. 27. A court of equity will sustain an original bill to correct a former decree of the same court. — Whittemore vs. Coster, 3 G. 438. 28. Where a bill charges that an act of the legislature is contrary to the Constitution of the United States, and in violation of the rights of the complainant, and illegal and void, the court will not, under the general prayer for relief, declare such act unconstitutional or void. — Smith vs. Trenton Del. Falls Co., 3 G. 505. 29. What charges held to be sufficient to justify the action of the court, on a bill filed under the act to prevent frauds by incorporated companies. — Parsons vs. Monroe Manfg. Co., 3 G. 187. 30. A bill cannot be maintained by a creditor of an incorporated company after the appointment of receivers, to settle the validity and BILL. 349 priority of claims and incumbrances upon the property of the com- pany. It is the duty of receivers to settle priorities, and in so doing, to decide upon the validity of the claims against the company. — Smith vs. Trenton Del. Falls Co., 3 G. 505. 31. Nor can a bill be sustained by such creditor to inquire into the validity of assignments or transfers of property made by the company. This also is within the province of the receivers. — ih. 32. A recovery will not be allowed in a case proved, if it differ essentially from the case made in the bill. — Hopper vs. Sisco, 1 Hal. 343. 33. The court cannot act on a distinct ground for relief made by the proof, if it be not set up in the bill. — Plume vs. Small, 1 Hal. 460. 34. A tenant under a written lease for a year, after the expiration of the year, filed a bill praying the specific performance of an alleged parol agreement by the la.ndlord for a lease for a second year, and an injunction restraining proceedings at law instituted by the land- lord for the possession. The bill stated that the complainant could make no proof at law of the parol agreement, and prayed a discovery of it. The answer denied the alleged parol agreement. The injunc- tion was disolved and the bill dismissed. — Jones vs. Sherwood, 2 Hal. 210. 35. One stockholder of an incorporated company may file a bill against other stockholders, to restrain them from committing breaches of trust in the management of the aflFairs of the company, and requir- ing them to account. — Hager vs. Stevens, 2 Hal. 374. 36. On a bill by an heir at law against his co-heir and the admin- istrator, for discovery of deeds and an account, alleging fraud in the making of a will, and praying that the deeds might be established ; the answer discovered the deeds but denied the fraud ; on pleadings and proofs it was ordered, that the bill be retained for twelve months, and the complainant be at liberty to bring an ejectment, and that the defendant produce the deeds upon the trial thereof; reserving all further directions. — Tomlinson vs Sheppard, 3 Hal. 80. 37. The bill contained no prayer for process, nor was it signed by counsel. Demurrer allowed. — Wright vs. Wright, 4 Hal. 143. 38. In a bill or petition under the act to prevent frauds by incor- porated companies, it must satisfactory appear that the company is involved, and the facts and circumstances of the case must be set out. — Rawnsley vs. Trenton' Life Ins. Co., 1 Sto. 95. 39. "When the whole equity of the bill rests upon facts which are not set out therein, the informalities and omissions cannot be cured or waived by the pleadings or by consent. — Rainier vs, Howell, 1 Sto. 121. 350 BILL. 40. Where a bill was filed against defendants as trustees, and as the representatives of the testator, in their representative characters, and the prayer of the bill was in conformity thereto, the complain- ant is entitled to an account in that aspect only. — Scott vn. Gamble, 1 Sto. 218. 41. A bill which sets up different and distinct causes of complaint which destroy each other, and seeks different reliefs inconsistent with each other, is multifarious ; and although no advantage be taken of the defect by the pleadings, the court may dismiss the bill, and will do it where the form of the bill embarrasses the court in the administra- tion of justice. — Swayze vs. Sioayze, 1 Sto. 273. 42. Where the defence set up by the answer is of a character to require the complainant to make a new issue in order to meet it, he will not be permitted to do so without amending his bill and adapting it to the case upon which he expects to rely. — Van Riper vs. Claxton, ex'r., 1 Sto. 302. 43. Where the complainant as next of kin calls upon the defend- ant, who is the personal representative of the intestate to answer in that capacity ; and as an heir at law calls upon the defendant to account for the rents and profits, the bill is multifarious. — Van Mater vs. Sickler, 1 Sto. 383. 44. A bill sworn to, that has been framed to avoid an impression that would be made by an ingenuous statement of the case, deprives the complainant of the benefit of doubts which might otherwise be resolved in his favor. — Herbert vs. Scofield, 1 Sto. 492. 45. All bills are, in their nature, bills of discovery. Some are bills for discovery purely. When the subject matter is properly cognizable at law only, and adequate relief can be given there, a court of chancery frequently takes jurisdiction, in order that a discovery may be had on the oath of a party, or to compel the pro- duction of papers a.nd documents. The end for which the jurisdic- tion of the court was invoked, having been attained, the party seeks his redress in the proper tribunal at law. — Little vs. Cooper, 2 Sto. 273. 46. A mere bill of discovery cannot properly pray for relief; where, upon the facts stated, the relief prayed for by the bill is proper, the bill is something more than a mere bill of discovery. — ib. 47. That the complainant has understood that a sale was conducted fraudulently; that the defendants and others were the wrong-doers; and that they suppressed certain facts which ought to have been made known, is not a sufficient statement of the facts which constitute the alleged fraud. — Small vs. Boudinot, 1 Sto. 381. 48. A complainant cannot invoke the aid of a court of equity on the ground that an award was illegal, because not in pursuance of the submission. Where it appears by the bill itself, that the parties mutually agreed to the course pursued by the arbitrators in tbe mat- BILL. 351 ter complained of, it would be against equity to permit the complain- ant thus to repudiate his own acts. — Veghte vs. Hoagland, 2 Sto. 45. 49. A complainant cannot make one case by his bill, and having failed to prove it, abandon it, and recover upon a different one established by the evidence. — Andrews vs. Farnhani, 2 Sto. 9 1 . 50. A complainant may have partition and an account by the same \n\\.— Ohertvs. Obert, 2 Sto. 93. 51. Charges of adultery are improper in a bill which prays for a divorce a mensa et thoro only. — Snover vs. Snover, 2 Sto. 261. 52. It is not enough for the bill to show that the debtor has made a fraudulent disposition of any particular portion of his property, to entitle the creditor to the aid of a court of equity ; he must show that snch disposition embarrasses him in obtaining satisfaction of his debt. Facts must be stated from which, at least, the inference may be drawn, that the aid of a court of equity is required to give the judgment its legal and proper effect. — Dunham vs. Cox, 2 Sto. 437. 53. On a bill for the foreclosure and sale of mortgaged premises, the bill must show that the debt which the mortgage is given to secure, is due and owing to the complainant. — Cornelius vs. Halsey, 3 Sto. 27. 54. Technicality of pleading, however, is not required; and if the complainant files his bill as the assignee of the mortgage, and alleges that the debt is due and owing to him, and that he is ready to pro- duce the note or obligation, which is the evidence of the debt the mortgage is given to secure, it is suflScient, without stating that the note or obligation has been assigned to him. — ib. 55. Where the bill shows upon its face that the complainant has the legal title, and a complete legal defence to an action of eject- ment, this court will not interfere with the suit at law. — Philhower vs. Todd, 3 Sto. 54. 56. The bill must show clearly the grounds of equity, and they must not be left to inference. — ib. 57. The complainant can recover only upon the case made in his bill. The allegata and probata must correspond. — Parsons vs. Heston, 3 Sto. 155. 58. An immaterial variance between the agreement alleged in the bill, and that admitted, by the answer, will not prevent a decree for specific performance. — Ashmore vs. Evans, 3 Sto. 151. 59. Where a complainant claims the benefit of a statute, his bill must contain all the averments necessary to bring his case within its beneficial provisions. — Eberhart vs. Gilchrist, 3 Sto. 167. 60. A person who is not a party to a suit may, after decree, file a bill to be relieved against the effects of such decree ; as if there is 352 a decree against mortgage and judgment creditors, a creditor of the mortgagor and judgment debtor, if he can show that the mortgage and judgment are kept on foot for the benefit of the mortgagor, and to defeat his creditors, may file his bill to be relieved against such decree. — Robinson vs. Davis, 3 Sto. 302. 61. A bill tiled by a legatee, or next of kin, against an adminis- trator of an intestate and a surviving partner of the intestate, praying for a settlement of the partnership accounts, and that the surviving partner may account to the complainant for the rents and profits of real estate owned by him and his deceased partner, is multifarious. — Harrison vs. Righter, 3 StO. 389. 62. Where the statement of facts in the bill is broad enough to give the complainant a right to relief, it matters not how narrow the prayer may be, if the bill contains a prayer for general relief; 63. And although a complainant may claim a relief not at all war- ranted by the facts, or may be entitled to a relief upon very different principles of equity from what he supposed, such a misapprehension of his case, cannot defeat his right to relief — Hill vs. Beach, 1. B. 31. 64. Even if a mistake could be set up, a cross bill is not neces- sary where the defendants can be protected by a decree upon the original bill, declaring that the complainant was not entitled to have the goods sold. — N. J. Franklinite Go: vs. Ames, 1 B. 66. 65. To permit the complainants on a bill presenting an issue between an executor, denying the testator's interest in the business, and the legatees proving the interest, to ask at the hearing for a decree making the defendant personally liable for -the payment of the legacies and annuities, would be a surprise, and that the prayer for general relief could not be resorted to for such purpose ; that the relief granted under the general prayer must be consistent with that specially prayed for. — Rennie vs. Crombie, 1 B. 457. 66. A bill, setting up an equitable claim to the land in the widow, and praying that if that claim shall fail, that dower may be assigned, is not multifarious. — Rockwell vs. Morgan, 2 B. 384. 67. In a suit by a wife for her separate estate, complainant will be required to establish clearly her sole and separate title ; but when the bill contains an express averment that the title to the real estate now occupied by the complainant, is in her, and that the purchase money was paid out of her separate estate, the bill is not wanting in equity, merely because it does not show, with legal precision, how the land originally became her separate property. — Johnson vs. Vail. 1 McO. 423. 68. A bill which unites objects entirely distinct, having no neces- sary or proper connection with each other, and which unites parties having no common interest in most of the subjects of controversy, is multifarious,— (?r»?}? vs, Fairchild, 1 McC. 76, BILL. 363 69. A bill, filed to set aside a sale on the ground of fraud, charging collusion &c., the evidence showing a different state of things than is charged in the bill, will not entitle the complainant to relief upon that ground, because it is not the case made by the bill, nor within the issue made by the parties. Before a decree can be made against a defendant on this ground, it should be distinctly charged in the bill, and the defendant have an opportunity of meeting the charge by his answer. — Howell vs. Sebring, 1 McC. 84. VO. The court might, even at the hearing, permit an amendment of the bill, where the real truth was not disclosed by the answer, until the evidence was nearly closed, if it were necessary to the ends of justice. — ib. 71. Where a bill is filed by a judgment creditor against his debtor, not for the sole purpose of having a conveyance, alleged to be fraudu- lent, set aside as against creditors, but also prays that, in case the conveyance should not be decreed fraudulent, the complainant's judgment should be declared an encumbrance on the property in the hands of the alienee ; should this relief be granted, the suit will enure to the benefit of the complainant alone, and not to the benefit of other creditors of the defendant. — Voorhees vs. Reford, 1 McO. 155. 72. Where the design of a creditor's bill is. to declare the property of a defendant subject to the lien of any of the attaching or judg- ment creditors, all the creditors having liens upon the property are entitled to be heard and have their liens protected. — ib. 73. The fact that the frame of the hill is unusual and without a precedent, does not alone constitute an objection to the relief sought, if it can be supported upon principle. — Yauger vs. Skinner, 1 McC. 389. 74. The property included in the second mortgage is not ascertained or .described in the bill with suflScient certainty. A bill for the fore- closure of a chattel mortgage, should show of what the property consists, the mortgagor's title, or claim of title, to it, and that it is within the jurisdiction of the court. — Chapman vs. Hunt, 1 McO. 149. 75. The bill is objectionable in its statement of the complainant's rights under the first mortgage, in that it contains no averment that the notes endorsed by the mortgagor, and against which the mortgage was given as an indemnity, were ever assigned to the complainant, nor that the principal of said notes remains unpaid. Th& objection is not cured by the fact that these averments are made in the affi- davit annexed to the bill. — ib. 76. The bill alleges that, as to one or more of the securities taken and held by defendant, the debtor resided and still resides in this state. The foreign administration gave no title to these securities as against the administrator in this state. The bill prays a discovery and account as to these securities, and for that purpose it can be maintained. — Banta vs. Moore, 2 McO. 97. 354 BILL. 77. The transactions charged, being parts of a series of acts all tending to defeat the plaintiff's remedy at law, may properly be united in the same bill. — Randolph vs. Daly, 1 C. E. G. 313. 78. To entitle an execution creditor to relief, it must appear by the bill, that he has exhausted his remedy at law, and that the aid of this court is necessary to enable him to obtain satisfaction of his judgment. — ih. 79. A general allegation in a bill for divorce, that the defendant, within a specified time, has committed adultery, is insuflHcient. The party with whom the crime is believed to have been committed must be named ; or, if unknown, an averment to that effect is necessary. — Marsh vs. Marsh, 1 C. E. G. 391. 80. The charge must be so full and specific, that the party charged may know what he is called upon to answer. It should state the time when, the place where, and, if known, the person with whom the offence was committed. It is not necessary to state the day, but the month and year should be stated. — ih. 81. If the defendant asks substantial relief, either as against a complainant or a co-defendant, or a discovery, a cross bill may be necessary. But the court dispenses with the necessity of a cross bill when the whole matter is before it, and the party is not thereby deprived of any substantial right by a decree in the existing suit. — Vanderveer vs. Holcomb, 2 C. B. G. 87. 82. An admission or allegation of fact in the answer will not avail the complainant, unless put in issue by the bill. If he desires to avail himself of such fact, he must amend his bill. — Hoff vs. Burd, 2 C. E. G. 201. 83. If an answering defendant seeks a decree to establish claims outside of any issue made by the pleadings, he must file a cross bill.—*. 84. In a bill by a purchaser of real estate, to enforce the specific performance of a contract for the sale and conveyance thereof, an avei'ment of the tender of the purchase money on the day designated for the execution of the contract, is not necessary. — Huffman vs. Huffman, 2 C. B. G. 263. 85. A defendant, in his cross bill, cannot set up a case inconsistent with the case made in his answer to the original bill. — Jackson vs. Grant, 3 C. B. G. 145. 86. A mortgage cannot be reformed upon a prayer in answer to a bill to foreclose. It must be by cross bill. — French vs. Griffin, 3 C. E. G. 279. • 87. In a suit to restrain an action at law by reversioners, for waste in cutting timber, a justification of the waste, not alleged or set up in the bill, will be of no avail on a motion to dissolve the injunction. BILL. 356 The right to the injunction must appear by the allegations in the bill. — Van Syckel vs. Emery, 3 C. E. G. 387. 88. A general charge, that the wife is an adulteress, is not sufBcient to support a bill for divorce. The adultery must be designated, either by the name of the adulterer, or by circumstances, aij^ the time when and place where it was committed. — Mills vs. Mills, 3 G. B. G. 444. 89. Where the charge is of adultery with clivers persons, whose names were unknown, and the only proof is of adultery with one person, who was well known to the complainant, the variance is fatal. — ib. 90. No positive relief is ever granted a defendant, except on cross bill ; and no relief except it be founded on allegations in the bill, or other pleadings in the cause. — LeddeVs ex'r. vs. Starr, 4 C. E. G. 159. 91. Bills must be signed 5y counsel. Signing the name of counsel is not a compliance with the rule, either in spirit or letter. — Davis vs. Davis, 4 C. E. G. 180. 92. A bill in chancery, like a declaration at law, should confine its statements to such facts as are proper to show that the complainant is entitled to relief, and which, if proved, will entitle him to relief; and should not set out the evidence, whether oral or written by which the facts are to be proved. — C. & A. R. B. Co. vs. Stewart, 4. G. E. G. 343. 93. The modern English rule is different, and requires all admis- sions or confessions of the defendant, relied on as evidence, to be set forth in the bill ; and if they are not, excludes the complainant from offering them in evidence. Whether this rule applies to the courts of this state, not decided. — ib. 94. A deposition taken in another suit between the same parties, and annexed to the bill by way of schedule, is incompetent, and there- fore impertinent, when it is not shown by competent evidence that there was a suit pending in which it was taken, and no certified or sworn copy of the original is produced. — ib. 95. The weight of authority is, that in bills for discovery, it is not necessary to allege that the facts, a discovery of which is sought, are within the exclusive knowledge of the defendant. — Metier vs. Metkr's adm'r., 4 C. E. G. 457. 96. A divorce can never be granted upon general charges in the bill of adultery, with "divers persons whose names are unknown." A bill for divorce should not be filed upon general suspicion, until the discovery of some specified act, or of the facts from which such acts must be inferred. — Larrison vs. Larrison, 5 C. E, G. 100. 356 SUPPLEMENTAL BILL. 97. If the name of the person with whom the adultery is alleged to have been committed, is unknown, the time, place and circum- stances must be stated, so as to identify the offence, or the person of the adulterer must be described, and the fact that the name of such person was unknown at the time of filing the bill must be proved. If the name is known it must be stated in the bill. — ih. 98. Where a bill to foreclose, contained no allegation that the com- plainant's mortgage was given for unpaid purchase money, or that subsequent mortgagees, made defendants, had notice of it before the mortgage to them, and the priority of the complainant's mortgage depended on these facts, and they appeared clearly in proof. Held, ■ that the bill was defective, and no decree or relief, founded on the facts above stated, could be given unless they were set forth in the biU; but that the bill might be amended. — Armstrong vs. Rose. 5 C. E. G 109. 99. A bill, praying that defendant's title to one-half the property in question, as cestui que trust, may be decreed and established, and also that it may be partitioned, and one-half set off to her by metes and bounds, is not multifarious. — Darling vs. Hammar, 5 C. E. G. 220. 100. In suits between the proper parties relating to the same sub- ject matter, several species of relief may be prayed, although each might be the subject of a separate suit. — ib.' 101. Where the vendee is defrauded, and is not in a position to rescind, the fraud must be set up by a cross bill. — O'Brien vs. Sal- fish, 7 0. E. G. 471. IT...SUPPLEMENTAL BILL. 1. A general creditor having filed his bill for relief, and having subsequently obtained judgment and execution at law, is not entitled to relief upon his original bill, though a decree pro confesso be taken against the defendant A supplemental bill should be filed, stating the facts which entitle him to relief. — Edgar vs. Glevenger; 2 G. 258. 2. If a bill be so entirely defective that no decree can be made upon it, it will not be aided by a supplemental bill founded on facts that have subsequently taken place. — ib. 3. But if the bill be sustainable on any ground, even for the purpose of granting temporary relief, the court having possession of the cause, may hold it for the more general and important purposes of the bill, and will permit the complainant to file a supplemental h\\\.—ib. BItt Ot" REVIEW. ^57 4. A mortgagee having, before the mortgage debt became due, filed a bill to restrain the commission of waste upon the mortgaged premises, may, after the mortgage money becomes due, file a sup- plemental bill, setting out by way of supplement, that the money has become due, and praying additional relief, to wit : that the equity of redemption may be foreclosed and the mortgaged premises sold. —Allen vs.Taylor, 2 G. 435. 5. A strictly supplemental bill is always founded on facts that have occurred since the filing of the original bill. These may be necessary, either to aid the complainant to obtain the relief sought, or in obtoining new or additional relief. — ib. 6. A supplemental bill should be used in preference to an original bill, whenever it can equally subserve the purposes of justice. — ih. 7. Where the new matter charged in a supplemental bill, does not affect the rights or interests of a mere formal party to the original bill, it is not necessary to make him a party to the supplemental bill.— i5. 8. It is not the practice to reiterate substantively in a supplemental bill all the charges of the original bill, but to set them out by way of reference, and charge the new and additional facts by way of sup- plement. — Edgar vs. Clevenger, 1 G. 464. 9. Process on the original bill should be served before a supple- mental bill is filed. — Outwater vs. Berry, 2 Hal. 63. 10. Where the complainant died pending proceedings upon his bill, and the right therein set up was claimed by another, both as administrator and under a conveyance to him, it was held that he should proceed by an original bill, in the nature of a bill of revivor and supplemental bill. — Grant vs. Chambers, 3 Hal. 223. H. Matters which are known to complainant before the decree in the original suit, will not support a supplemental bill ; nor will mat- ters which have arisen since, if they are merely cumulative evidence of the charges in the original bill. — Barricklo vs. Trenton M. Ins. Co., 2 B. 154. 12. The supplemental bill in this case held to be multifarious. — ib. T...BILL OP EETIBW. 1. To entitle a party to file a bill in the nature of a bill of review, upon the ground of newly discovered matter, the evidence discovered must not only be new, but material, and such as if unanswered in point of fact, would either clearly entitle the party to a decree, or would raise a case of so much nicety and difficulty as to be a fit subject of judgment in a cause. — Quick vs. Lilly, 2 G. 255. §S8 BILt Oi" iNTEEPtEADEK. VI...BILL OP TNTBRPLBADER. 1. The complainant in a bill of interpleader, sets out the claims as exhibited to him, and he cannot be expected to do it, with as much particularity as the complainants themselves might do. It is enough for him to satisfy the court, that there are opposing claims, against which he is in equity entitled to protection until they are settled, so that he may pay with safety. — Lozier's eaV., vs. Van Saun's adm'r., 2 G. 325. 2. A bill of interpleader may be filed, although the claim of one of the claimants is actionable at law, aiid that of the latter in equity. — ib. 3. It seems that a bill of interpleader will be sustained in cases where it is not absolutely necessary that the complainant should resort to equity for protection. — ib. 4. It is no cause of demurrer to a bill of interpleader, filed by executors, that the bill prays relief, on the ground that the estate is likely to prove insolvent. — ib. 5. The fact that the particular amount due is not ascertained, does not take from the executors the character of indifferent stake- iolders. — ib. 6. Nor is it a cause of demurrer to a bill of interpleader, that it is filed after judgment at law, no defence having been made against the recovery of judgment, where the whole, or a part of the defence is equitable only. — ib. 7. By delaying to file his bill until after judgment, the complain- ant subjects himself to the burden of bringing the money into court, but is not deprived of his right. — ib. 8. The bill of interpleader is not a proper remedy when the com- plainant has any personal interest in the question to be settled. — ib. 9. On a bill of interpleader the first decree is, that the defendants interplead, and the case then becomes a case between the defend- ants. — Howe vs. adm'r. JFIoagland, 3 Hal. 131. 10. The party holding the affirmative will be entitled to the opening and reply. — ib. 11. On bills of interpleader the court disposes of the questions arising in various modes, according to the nature of the question and the manner in which it is brought before the court. — Condit's ex'rs. vs. King, 2 B. 375. 12. If at the hearing the question between the defendants is ripe, the court will decide it, and pronounce a final decree. — ib. Plea. §59 13. A bill of interpleader is proper, only where the complainant has property or funds in his possession, or under control, to which there are two or more claimants, and the complainant is doubtful to which of the claimants the debt or duty is due. It cannot be sus- tained where the complainant is obliged to admit, that, as to either of the defendants, he is a wrong doer. — Mt. Holly Turnpike Co., vs. Ferrel, 2 C. E. G. 117. VII...PLEA. 1. A plea must set out all material matters constituting the defence. Meeker vs. Marsh, exW., Sax. 198. 2. The delivering up of vouchers on the settlement of an account, is not necessary. An averment in a plea that the vouchers have been delivered up, is not necessary. — ih. 3. When the bill is for an account, it is not required that the plea should set out the account ; although this is the proper course when the account is impeached by the bill. — ib. 4. "When all the allegations of the plea being taken as true, do not make out a full defence ; or when necessary facts are to be gathered by inference alone ; the plea cannot be sustained. — ih. 5. A former decree pleaded in bar, need not appear to have been between precisely the same parties with the one to which it is pleaded, but it must always appear to have been for the same sub- ject matter. — Matthews vs. Roberts, 1 G. 338. 6. If the defendant has a substantial defence which cannot avail him under his plea, from inaccuracy of pleading, he may clairo the full benefit of such defence by his answer. — ib. 7. Under the statute regulating the practice in Chancerj^, the defendant, under the usual order to answer after demurrer overruled, cannot file a plea. — White vs. Dummer, 1 G. 527. , 8. The statute of limitations may be pleaded in equity to actions for dower. — Conover vs. Wright, 2 H. 613. 9. When the bill does not state any circumstances to take the case out of the statute, the plea may be a pure plea. It is not required to be accompanied by an answer, when the bill simply contains the formal allegation with regard to title papers, usual in bills for dower, in order to bring them within the jurisdiction of a court of equity. — ib. 10. If the defendant interposes a plea in bar to the whole bill, and the complainant does not reply, but is disposed to question its validity, instead of the complainant demurring to it. the defendant must set it down for argument, and this answers to the demurrer at 360 i?tEA. law. If the plea should be held not good, the defendant must answer ; if it is sustained, the complainant must reply to it. — Flagg vs. Bownel, "2 Sto. 82. 11. "When he does reply and takes issue, the determination of that issue is final. — ib. 12. It is requisite to the validity of a plea of another suit pend- ing, that it should appear that the second suit is for the same subject matter as the first ; but if the facts stated in the plea plainly show this to be so, an express averment to that effect is not necessary. — McEwan vs. JBroadhead, 3 Sto. 129. 13. If the complainant deems the plea bad, the case goes to hear- ing upon the plea ; if good but not true, he takes issue upon it as in case of an answer. — Davison's exr's., vs. Johnson, 1 0. E. G. 112. 14. The subject of the inquiry is not the mere technical form of the plea, but the suflSciency of its averments to sustain ; whether, assuming all the facts properly set out in the plea to be true, it presents a valid defence.^ — ih. 15. The pendency of a former suit being pleaded in bar, the defend- ant may state the pendency and object of the former suit, and aver that the present suit was brought for the same matters ; or he may omit the averment that the suits are for the same subject matter, provided he state facts sufficient to show that the}^ are so.. — ib. 16. A plea of another suit depending for the same cause in bar of a suit in equity, can only be of a suit depending in the same, or in some other court of equity. — Way vs. Bragaw, 1 C. E. G-. 213. 17. The recriminatory plea of adultery to a petition for divorce on that ground, must be clearly set out in the answer. — Jones vs. Jones, 3 C. E. G. 33 ; Reidvs. Reid, 6 0. E. G. 331. 18. A. plea of release is not void because it is not stated in the plea, or the answer in support of it, that the release was obtained freely and without fraud, when the bill contains no allegation of fraud. — McClane's adm'x. vs. Shepherd's ex'x., 6 C. E. G. 76. 1 9.. Such issue cannot now be raised by special replication. The modern practice is to permit the complainant to amend his biU by inserting allegations which will raise the issue, and require the defendant to answer as to them. — ib. 20. The statute of limitations is a good plea to a biU for an account of trust funds, where the trust is not direct or express, but arises merely by implication. — ib. 21. The defence of a bona fide purchase may be made by plea in bar of discovery and relief, or by answer, in bar of relief only. Proof of the actual pa5''ment of the whole purchase money is essential to that defence, whether it be made by plea or answer. If bEMtJEEEE. 361 the defendant has paid part only, he will be protected pro tanto only. Haughwout vs. Murphy, 7 C. E. G. 531. VIII...DBMXTRRER. 1. A general demurrer admits the truth of all the material allega- tions of the complainant's bill, that are well pleaded. — Smith vs. Allen., Sax. 43 ; Ooble vs. Andruss, 1 G. 66. 2. Under a general demurrer for want of equity a demurrer ore tenus may be made for want of parties. — Stillwell vs. McNeely, 1 G. 305. 3. "Where husband and wife file a joint demurrer, it may be over- ruled as to the husband, and sustained as to the wife. It is not necessary that she put in a separate demurrer. — Wooden vs. Morris, 2 G. 65. 4. A general demurrer bad in part will be overruled. — Outwater vs. Berry, 2 Hal. 63. 5. Where proceedings upon the original bill had been allowed to sleep for twenty-two years, and then a supplemental bill was filed, a demurrer thereto was allowed. — Ex'rs of Woodruff vs. Burgh, 2 Hal. 465. 6. A demurrer can only be founded on a fact or omission appear- ing in the bill ; it cannot set up a fact or omission not appearing in the bill, and thereupon demur. — Black vs. Shreve, 3 Hal. 440. 7. On demurrer to the whole bill, if the bill be good in part, the demurrer will be overruled. — Vandeveer vs. Stryker, 4 Hal. 175. 8. Although a demurrer admits ell the facts alleged in the bill, where the bill alleged as a fact, that a check was paid, and then pro- ceeded to detail the manner and circumstances of its pa3'ment, and these did not establish the fact: it was held that the allegation amounted to nothing. — Redmond vs. Dickinson, 1 Sto. 507. 9. Although a demurrer admits the facts of the bill, the agreement being in parol, the complainant is entitled to the benefit of the statute of frauds, unless the part performance which is set up to avoid its operation, is of a character to have that legal effect. The demurrer admits the parol agreement and insists that it is not such a parol agreement as will avoid the operation of the statute, and deprive the defendant of the benefit of it, as a defense. — Van Duyne vs. Vree- land, 3 Sto. 371. 10. A demurrer is, in effect, the same as an answer which admits the parol agreement, but claims the benefit of the statute. It 24 362 DEMtTEEEE. admits the agreement but denies the right of the complainant to enforce it. — ih. 11. The mere fact that three years have elapsed since the signing of decree cannot be set up on demurrer to the bill of revivor. — Peer vs. Cooherov), 2 B. 136. 12. That a supplemental bill is filed without authority of the court is not matter of demurrer, though it may, on that ground, in the discretion of the court, be dismissed. — Emans vs. Wnrtman, 2 B. 205. 13. If a bill unite a demand of several matters of distinct natures against different defendants, it is demurrable for multifariousness. — ib. 14. So if a joint claim against two defendants is joined in the same bill with a separate claim against one of them only, either or both of the defendants may demur for multifariousness. — il. 15. The objection to a misjoinder of husband and wife as com- plainants may be taken by demurrer, but it constitutes no ground for dissolving the injunction, if one has been granted. — Johnson vs. Vail, 1 McC. 423. 16. It is good ground of demurrer that complainant, in his bill insisting on the validity of the award and asking its performance, cannot draw in question the fairness and equality of the partition. — Emans vs. Emans 1 McC. 114. 1 7. The bill is also demurrable for multifariousness. The objec- • tion to multifariousness includes not only cases where by one biU the plaintiff demands several matters of different natures against several "defendants, but also the uniting of several matters perfectly distinct and unconnected against the same defendant. This objection, though it might have been fatal upon demurrer, will not be sustained upon final hearing, if the court is satisfied that no embarrassment or confu- sion will result in the making or execution of the final decree. On the other hand, if the court anticipate such result, it wiU, of its own motion, and upon final hearing, insist upon the objection. — ii. 18. To enforce the award, or, if that fails, to declare the partition unequal or fraudulent, and to adjust or equalize the shares of the parties entitled, are objects of the bill not only distinct but inconsis- tent. — ih. 19. The demurrer being sustained as to part of the bill, for the cause specified, the rest of the bill, not covered by that ground of demurrer, remains in court, and the complainant, as to that part of his case, may proceed as if there had been no demurrer. — ih. 20. In equity, a demurrer is only a mode of defence to the bill. It is never resorted to, to settle the validity of a plea or an answer. — Travers vs. Ross 1 McC. 254. 21. A demurrer, applied to the whole bill but good only as to part is too general and must be overruled. — Banta vs. Moore, 2 McC. 97, bEMttfiEEft. .163 22. "Whether the executor of a deceased co-obligee should be joined with the surviving obligee as complainant, or be made a party defendant to the suit, is a question of form and should be raised by demurrer — Freeman vs. Scofield, 1 C. E. G. 28. 23. The inquiry when the cause is heard upon a plea, is substan- tially as if the complainant had demurred to the plea. — Davison's ex'rs. vs. Johnson, 1 C. E. G. 112. 24. A bill, filed to obtain satisfaction of a judgment at law, is not demurrable on the ground of multifariousness, because it seeks to remove fraudulent conveyances and encumbrances, and also to bring within the reach of the judgment, equitable interests which are not the subjects of execution at law. — May vs. Bragaw 1 0. E. G. 213. 25. Where the case made by the bill is so entire that it cannot be prosecuted in several suits, and yet each of the defendants is a necessary party to some part of the case as stated, neither of the defendants can demur for multifariousness, or for a misjoinder of causes of action, in some of which he has no interest. — ib. 26. Where a judgment creditor files a bill in equity to obtain aid in enforcing the payment of his judgment at law, it is no ground of demurrer that other creditors, are not made parties to the bill. — ih. A bill filed by an execution creditor is not demurrable for multi- fariousness, because it seeks to set aside fraudulent conveyances, and at the same time to reach other property of the debtor, which is not the subject of execution at law, and respecting which a discovery is prayed. — Randolph vs. Daly, 1 C. B G. 313. 27. A bill asking an injunction to restrain waste, and also an account for rent due, is demurrable on the ground of multifarious- ness. — Reed's ex'rs. vs. Reed, 1 0. E. G. 248. 28. An averment that the statements contained in the bill are made upon information and behef, constitutes no ground of demurrer. —Marsh vs. Marsh, 1 C. E. G. 391. 29. A bill praying a discovery from the defendant, whether since her marriage, she has not committed adultery with any person what- ever, and with whom, and at what time and place, and under what circumstances, is demurrable. The rule is, that the defendant is not bound to accuse himself nf a crime, or to furnish any evidence what- ever, which shall lead to an accusation of that nature. And the , objection lies to a particular interrogation, though the bill be in other respects unexceptionable. — ib. 30. Under a general demurrer for want of equity, no objection for want of form can properly be raised. A demurrer must express the several causes of demurrer. — ih. 31. Demurrer overruled, with leave to amend, by stating thegrounds of demurrer, within twenty days, unless the complainant within that time shall amend his bill in the particulars objected to.— ih. 364 DEMUEEEK. 32. A bill is not demurrable for want of proper parties when all the persons whose rights are to be affected by the decree are joined. — Swedesborough Church vs. S/iivers, 1 C. E. G. 453. 33. The want of the affidavit to a biU of interpleader, denying collusion, constitutes a ground of demurrer, but it also may be taken advantage of at the hearing. — Mt. Holly Turnpike Co. vs. Fenel, 2 C. E. G. 117. 34. A bill filed by the owners of several and distinct lots of land, having no common interest, to enjoin a nuisance common to all the land owners, but each complainant seeking special relief to his own property, ' is demurrable for misjoinder of parties. — Hinchman vs. Paterson H. R. R. Co., 2 C. E. G. 76. 35. As a general rule, objection on the ground of misjoinder should be made by demurrer. — ib. 36. Where a bill is defective for want of proper parties, the appropriate remedy is a demurrer, or an objection atthe hearing for want of parties, and not a petition to be admitted to defend the suit. — Melich vs Melick's ex'rs., 2 C. E. G. 156. 37. When a demurrer is too extensive or bad in part, it must be wholly overruled. — Metier' s adm's. vs. Metier, 3 0. E. G. 270. 38. Multifariousness and misjoinder of complainants must be objected to by demurrer, or plea, or by answer expressly for that purpose. Objection on such grounds comes too late at the hearing. — Veghte vs. W. P. Co., 4 0. B. G. 142. 39. A bill is not demurrable for multifariousness, which unites several matters, distinct in themselves, but which altogether make up the complainant's equity, and are necessary to complete relief; nor, on the ground of misjoinder of several complainants, where either of them would not be entitled to proceed separately for relief without making the others defendants. — Hichs vs. Campbell, 4 C. E. G. 183. 40. A demurrer to a bill for discovery and relief cannot be sus- tained, if the complainant is entitled to the relief, though not to the discovery. — Metier vs. Methr's adm's., 4 0. E. G. 457. 41. When a bill sets up a sufficient ground of equitable relief as to part, and none as to another part, and would be demurrable if that part were sustained, a general demurrer will not lie. — Darling vs. Hammar, 5 C. B. G. 220. 42. A demurrer being sustained to a part of a bill for a cause specifically assigned, objection on score of multifariousness is removed, and the complainant may proceed as to the rest of his case as if there had been no demurrer. — ib. 43. Upon bill filed by grantor, to compel the purchase and pay- ment for the lands agreed for, demurrer will not lie to the whole bill. — Daveson vs. Perrine, 7. C. E. G. 87. ANSWER. 365 IX-.-ANSWER. 1. It is not sufficient for a defendant, claiming to he a bona fide purchaser for valuable consideration without notice, to deny personal knowledge of the matters charged, without denying notice before his contract. He must deny notice, even though it be not charged ; and he must deny it positively, and not evasively ; he must even deny fully, and in the most precise terms, every circumstance from which notice could be inferred. — Wilson vs. Hillyer, Sax. 63. 2. If a defendant in his answer charge certam tacts to exist, on which he intends to rely for his defence, and swears to the answer in the ordinary form, he swears to the truth of the facts, and not to the fact of the charge ; and if the facts as charged . are not true, perjury may be assigned upon it. — Quachenhush vs. Van Riper, Sax. 476. 3. It is not sufficient for the defendant in his answer to say he does not know it, or does not believe it, as that may all be true, and yet the fact charged be uncontradicted. — ih. 4 "When the answer is sufficient, and the complainant's equity denied, the injunction will be dissolved. — ih. 5. What is necessary and sufficient in an answer? — ih. 6. Allegations in an answer, which are not new *natter, but directly responsive to the material allegations of the bill, forming a complete answer to the charge of fraud ; sufficient ground to dissolve injunction. — Youle vs. Richards, Sax. 534. 7. The allegations in an answer not responsive to the charges in the complainant's bill, must be sustained by proof The answer can be of no avail without it. — Dickey vs. Allen, 1 G. 40. 8. Where the bill alleges the existence of a partnership, and prays an account of the partnership transactions ; an allegation in the answer, that by an agreement between the partners, on the dis- solution of the partnership, the complainant was to pay all the debts of the firm, is new and independent matter, not responsive to the charges in the bill. — ih. 9. If the bill of complaint charges the existence of a partnership without stating its character, an answer by the defendants that the partnership is dormant and unknown to them, is responsive to the bill, and need not be sustained by proof — Gammack vs. Johnson, 1 G. 163. 10. An answer, so far as it is a response to the bill, will avail the defendant, unless it be overcome by the testimony of witnesses ; but so far as it sets up new matter, must be proven. — Neville vs. De- meritt, 1 G. 321. 366 ANSWER. 11. Where the answer is directly responsive to the bill, and the defendant answers from his own knowledge, the answer must pre- vail, unless overcome by the testimony of two witnesses, or by the testimony of one witness, attested by strong corroborating circum- stances equal to that of another. — Kinna vs. Smith, 2 G. 14. 12. If the answer of one of the defendants is not full and Satis- factory as to any one of the grounds of equity set up in the bill, the injunction cannot be dissolved. — Scull vs. Reeves, 2 G-. 84. 13. Where transactions are charged involving frauds either actual or constructive, and especially where direct interrogatories are put in relation to particular facts, the court cannot be satisfied with a general answer, or one in any way evasive. — ib. 14. An express denial in an answer of a fact of which the defend- ants admit themselves to be ignorant, is not a satisfactory denial of the complainant's equity. — Bailey vs. Stiles, 2 G. 245. 15. Where a deed is made absolute upon the face of it, and with- out any actual consideration paid, if the grantor seeks to set it aside on the ground of fraud, the answer of a defendant setting up a trust, unless directly responsive to the bill, will not be evidence of the trust. — Hutchinson vs Tindall, 2 G. 357. 1 6. But where the gantor files his bill claiming the deed to be a deed of trust, and the defendant by his answer admits it, the answer, it seems, will be good evidence of the trust, and a sufficient writing to support it. — ih. 17. If the defendant by his answer admits the existence of the mortgage sought to be foreclosed, but seeks to avoid it, the matter alleged by way of avoidance, must be sustained by evidence inde- pendent of the answer. — Bray, exWs., vs. Hartough, 3 G. 46. 18. One witness, with corroborating circumstances, is suflScieut to overcome the defendant's answer. — Chance vs. Teeple, 3 G. 173. 19. To entitle a defendant to a dissolution of an injunction, he must deny the whole equity of the bill upon which the injunction is based. He must answer directly and without evasion, and must not merely answer the several charges literally, but he must traverse the sub- stance of such charges. — Everly vs. Bice, 3 G. 553. 20. Where there are particular charges, they must be answered particularly and precisely, and not in a general manner, though the general answer may amount to a full denial of the charges. — ib. 21. The substance of the charge must be admitted or denied. A mere literal answer is insufficient. — Smith vs. Loomis, 1 Hal. 60. 22. Where a matter is charged in the bill, which must, if true, be within the knowledge of the defendant, the substance of the charge should be answered directly, not evasively, nor by way of negative pregnant. — ib. ANSWER. 367 23. When the circumstances charged are suspicious, or have the appearance of collusion or fraud, a defendant will be held to strict ruling in answering. — ih. 24. In general an injunction will not be dissolved, unless all the defendants implicated in the charge have answered. — ih. 25. Every allegation of the answer which is not directly respon- sive, but sets forth matter in avoidance or bar, is denied by the general replication and must be proven aZtwrec^e. — Lovettvs. Demarest, 1 Hal. 113. 26. The facts on which the equity of the bill rested, were not charged to be within the knowledge of the administrator. A motion to dissolve on his answer was denied. — Williams vs. adm'r of Stevens, 1 Hal. 119 27. A denial on information and belief, of notice to another, is not sufficient to dissolve an injunction. — Pierson and Gruet vs. Ryer- son, 1 Hal. 196. 28. The denial of two allegations conjunctively is not a deinal of each. — ib. 29. A release of part of mortgaged premises had been recorded. An allegation of the defendant that he never heard of the release until after he bought, held, under the circumstances, not to be a suffi- cient denial of knowledge of the release. — ib. 30. The denial, in the answer, of the material allegation of the bill, which denial is supported by a witness, cannot be overcome by the allegation of a single witness in support of the bill, though there be discrepancies in other matters between the answer and the witness for the defendant. — Commercial Bank vs. Reckless, 1 Hal. 430. 31. The uncorroborated testimony of a single witness, is not suffi- cient to overcome the denial of an answer. — ib. 650. 32. An answer may contain within itself such circumstances as will alone suffice to deprive it of all efficacy. — Per. Ch. Jus. Green — ib. 33. The repetition in a further answer, or in answer to an amended bill, of anything contained in a former answer, which is not necessary or expedient, is impertinent. — Garr vs. Hill, 2 Hal. 457. 34. Defendants must be held to the established rules for answer- ing. It is not sufficient for a defendant to say he has no knowledge of a fact charged in the bill. — Kinnaman vs. Henry, 2 Hal. 90. 35. If a bill state, either directly or by inference, a base line of a fishery, an answer denying that such is the base line and stating another, and showing by what authority that was fixed, is responsive. — Howell vs. Robb, 3 Hal. 17. 36. Defects in an answer are not cured by not excepting to it. They will have their influence on the decision of the cause, although exceptions to them are not taken, — Doughty vs. Doughty, 3 Hal. 227, 368 ANSWER. 37. After decree pro confesso, the defendant took an order giving him leave to put in an answer, without informing the court of the nature of his defence. His answer set up usury. Ordered, that the defendant strike out so much of the answer as set up usury, or introduce into the answer an offer to pay the principal sum with legal interest. — Remur vs Shaw, 4 Hal. 355. 38. The same decree of accuracy is not required in an answer as in a bill. — Ring vs. King, 1 Sto. 44. 39. An answer purporting to be the answer of two defendants, but sworn to by one only, is but the answer of that one ; and cannot, without the consent of the opposite party, be read even as the answer of that one. — Vaughn vs Johnson, 1 Sto. 173. 40. The rule as to the effect of new matter in an answer, on a motion to dissolve is, that where the answer admits the equity of the bill, but sets up new matter for defence, on which alone the defend- ant relies for dissolution, the injunction will be continued to the hearing.* — Cornelius vs. Post, 1 Sto. 196. 41. In cases for the specific performance of agreements, it it now well settled, that if the defendant, by his answer, admits the parol agreement and insists upon the benefit of the statute of frauds, he will be fully entitled to it, notwithstanding such admission. But if he admits the parol agreement, without insisting on the statute, the court will decree a specific performance upon the ground that the defend- ant has thereby renounced the benefit of the statute. — Dean vs. Dean, 1 Sto. 425. 42. The same rule of pleading is applicable to cases where a bill is filed to enforce a parol trust. — ih. 43. "Where charges of fraud are made in the bill, and clearly denied in the answer, the answer must be taken as true, unless there is something in the circumstances of the case, which shows that it is not, and cannot be true. — Morris & E. R. R. vs. Blair, i Sto. 635. 44. Although the general rule is, that the answer of a defendant, so far as it is responsive to the bill, is evidence for the party, it is no evidence, when it asserts a right aflSrmatively in opposition to the complainant's demand. — Fisler vs. Porch, 2 Sto. 243. 45. If a defendant submits to answer, the general rule is, that he is bound to answer every immaterial as well as material statement of the bill. — Hogencamp vs. Ackerman, 2 Sto. 267. 46. It is not the mere denial of the facts upon which the equity of the bill rests, that amounts to such a denial of the equity, as will entitle the defendant to have an injunction dissolved. The facts must be of a character, to entitle the denial of them to at least as much credit, as their affirmation by the complainant is entitled to. If a fact is one within the knowledge of the complainant, and of ANSWER. 369 which the defendant has knowledge only from hearsay, and the equity of the bill rests upon that fact, and the defendant denies it upon his knowledge and belief, the equity is not denied in the sense which entitles the defendant to have the injunction dissolved. — Morris Canal Co. vs. Jersey City, 3 Sto. 14. 47. The complainants affirm that a certain pier and its appurte- nances are essential to the enjoyment of their canal. The answer affirms they are useful but not essential. This is not such a denial as entitles the answer to outweigh the allegations of the bill. — ih. 48. The bill charges that the assignees sold, without giving any information what was the interest of the debtor in the property. The answer affirms that one of the assignees did give such information. The answer is not satisfactory. It should have stated what the infor- mation was. — Hays vs. Doane, 3 Sto. 34. 49. The defendant may claim the benefit of the statute of frauds, notwithstanding he admits, in his answer, the parol agreement ; but if he does not, in his answer claim the benefit of the statute, he waives it. — Ashmore vs. Evans, 3 Sto. 151. 50. A defendant may answer and admit the parol agreement, bat if at the same time he insists on the protection of the statute, no decree can be made against him merely on the ground of the admis sion of the agreement. — Van Duyne vs. Vreeland, 3 Sto. 371. 51. If a defendant in his answer admits a parol agreement which is within the statute of frauds, without insisting on the statute, the court will decree a specific performance — Van Duyne vs. Vreeland, I B. 143. 52. It is not every answer in Chancery, although sworn to, which imports verity. — Stevens vs. Post, 1 B. 408. 53. The rule of evidence which makes responsive answers proof for the defendant applies only to fair answers, not to those which, on their face, are incredible. — ib. 54. In determining whether an answer becomes proof, unless over- come by superior testimony, it is proper to ascertain whether it simply admits and states facts called for in the bill, or whether it seeks affirmatively to assert a right in opposition to the complainant's demand, and to insist upon a distinct fact in avoidance as a defence ; if it assumes the latter aspect, it must be supported by the testimony of witnesses. — ih. 55. An answer cannot become evidence of facts acquired through hearsay — there must be a test of respondent's conscience. — ih. 56. Where husband and wife are made defendants, complainant is entitled to their joint answer. — Gollard vs. Smith, 2 B. 43. 57. A formal traverse of material matters contained in the bill is not sufficient to dissolve an injunction. — Brown vs. Fuller, 2 B. 271. 370 ANSWER. 58. "When the bill merely alleges, that the aomp\a.inaM believes and charges, that notice of the existence of the suretyship, was com municated to the agent at the time of the assignment, in whose presence and through whose intervention the assignment was made, the denial by the defendant of all knowledge, information or belief, that such notice was communicated to her agent, is a sufScient denial of the equity of the bill, to entitle the defendant to a dissolution of the injunction. — Kaighn vs. Fuller, 1 McC. 419. 59. It will not avail the defendant that the case proved makes out usury, if it is not the case made by the answer. The corrupt agree- ment must be distinctly set out and proved as alleged. — N. J. Patent Tanning Co. vs. Turner, 1 McO. 326. The general allegation at the close of the answer, that the contract is usurious, does not enlarge or qualify the facts specifically stated and set forth as constituting the usury.— iJ. 60. A denial, by the answer, of the existence of fraud, will not avail to disprove it, when the answer admits facts from which fraud follows as a natural and legal, if not a necessary and unavoidable, conclusion. — Sayre vs. Fredericks, 1 C. E. G. 205. 61. Where the cause is heard upon bill and answer, the answer must be taken as conclusive proof of the facts which it sets up by way of defence. But intentions and motives are not facts touching which the answer is conclusive. — Belford vs. Crane, 1 C. E. G. 265. 62. A defendant cannot pray anything in his answer, but to be dismissed the court. If he has any relief to pray, or discovery to seek, against the complainant, he must do so by cross-bill. — Miller vs. Gregory, 1 C. E. G. 274. 63. An answer to a bill to foreclose cannot draw in question the fairness and validity of a sale, the purchase money whereof the mortgage was given to secure, or impeach the contract on which the title of the mortgagor is founded. These matters xan only be drawn in question by a cross-bill. — ib. 64. An answer to a bill for divorce on the ground of desertion, which sets up as a defence a general and vague charge of cruelty on the part of the husband, without specifying any act of cruelty, or making any statement from which it, can be discovered in what the cruelty consisted, is radically defective. — Moores vs. Moores, 1 C. E. G. 275. 65. The defendant is bound to state in his answer, all the circum- stances of which he intends to avail himself by way of defence, and to apprise the complainant in a clear and unambiguous manner, ot the nature of the case he intends to set up. — ib. 66. When the cause is heard on bill and answer, the allegations of the answer are to be taken as true. — Meed's exr's.^ vs. Heed, 1 C. ANSWEE. 371 E. G. 248; Hoff vs. Burd, 2 C. E. G. 201 : Booraem vs. Wells, 4 C. E. G. 87. 67. Upon a bill filed by a mortgagee for foreclosure and sale of mortgaged premises, the mortgagor may by his answer set up usury against the claims of a mortgagee who is a co-defendant. He will not be driven to a cross-bill, and be thereby deprived of his defence. — Vanderveer vs. Ilolcomi, 2 G. E. G 87. 6% That an answer is insufficient in some particulars, does not destroy its effect upon the points upon which it answers directly, and when the complainant has accepted it, he is bound by it. — Whitney vs. Rollins, 2 C. E. G. 360. 69. An answer simply avering that the facts, stated in a paper purporting to be the answer of another defendant in the cause, "are substantially correct as far as these defendants are concerned," is formally and substantially defective. — Carrvs. Weld, 3 C. E. G. 41. 70. When the cause is heard upon bill, answer and replication, all the allegations of the answer responsive to the complainant's bill, must be taken as true ; all other allegations set up in the answer by way of defence, or avoidance, not amounting to a denial of the statements of the biU, denied by the replication, and not proved b\' the party setting them up, can have no effect on the decision. — Voorhees vs. Voorhees', ex'r., 3 C. E. G. 223. 71. On a motion to dissolve an injunction, the separate answer of a co-defendant, not included in the injunction, cannot be regarded. — Van Syckel vs. Emery, 3 C. E. G. 387. 72. An answer, in stating the particulars of a transaction charged and inquired into by the bill, is responsive — Merritt vs. Brown, 4 C. E. G. 286. 73. The answer of a defendant, that he has seen the answer of another defendant in the cause, and that the same is true, cannot avail to make such answer evidence for himself, when the answer referred to was not then filed, and there is nothing to identify it with the answer afterwards filed by such co-defendant. — Garr vs. Weld, 4 C. E. G. 319. 1 74. A partial failure of consideration, such as a defect of title, will not be admitted as a defence to the foreclosure of a mortgage for the consideration money, without eviction or a suit pending by an adverse claimant. — Hill vs. Davison, 5 C. E. G. 228. 75. A defect of title to mortgaged premises, conveyed by the mortgagee, is no defence in a suit for the foreclosure of a mortgage for part of the consideration. — Hulfish vs. O'Brien, 5 0. E. G. 230. 76. Such defence is a proper subject of exception for imperti- nence — il. 372 AiTSWER. 77. An answer, in which the denial is made in such form, as to leave it in doubt, whether the denial is of the fact alleged, or only of the facts in the form and manner and at the time alleged in the bill, is evasive, and will not avail to dissolve an injunction. — McMahon vs. O'Donnell, 5 C. E. G. 306. 78. If some of the denials in an answer, though direct, are, by reason of the manner in which they are made, evasive, and would not be sustained on exceptions, yet, if other parts of the answer allege facts responsive to the bill, and which are inconsistent with, and thus deny the material allegations of the bill, such parts may be taken in connection with the evasive denials, and form a sufBoient denial to entitle the defendant to a dissolution of the injunction. — ih. 79. Bill for injunction to restrain proceedings at law, upon a note and sealed bill, alleged to have been given when the maker was incompetent, also through undue influence, and also alleging a pre- tended consideration of the conveyance or release of some lands, and asking a discovery of the consideration and of the value thereof Defendants must answer fully as to the value of the lands. — ShotweU's adm'r , vs. Struhle, 6 C. E. G. 31. 80. Also, the complainant is entitled to a discovery of the con- sideration of the sealed bill. — ih 81. Where the allegations of the bill which in such a case might give a court of equity jurisdiction, are fully, directly and circum- stantially, denied by the answer, the denials must, on a motion to dissolve upon the bill and answer, be taken as true, and the injunc- tion issued to restrain the suit at law dissolved. — Inhabitants of Winslow v.i. Hudson, 6 C. B. G. 172. 82. It is the settled doctrine, that if the answer admits a contract, without stating that it was not in writing and setting up the statute of frauds, the statute cannot be used as a defence. The admission will be held to be of a written contract, and no proof need be offered of it. But if the pleading or answer denies the existence of any agreement, the plaintiff must prove a written agreement. — Walker vs. Rill's exr's., 6 0. E. G. 191. 83. If an answer denies making an agreement stated in the Mil, it is not necessary to plead the statute of frauds ; the complainant must prove a valid agreement, which in all cases within the statute must be in writing. — Johns vs. Norris, 7 C. E. G. 102. 84. A mere defect of title is no defence to a bill for the fore- closure of a mortgage given for the purchase money of the mort- gaged premises. — O'Brien vs. Hulfish, 7 C. E. G. 471. 85. When a defendant answers by the favor of the court, he must be restricted to an equitable answer ; where he has a right to answer, such limitations cannot be imposed. — Vanderveer' s adm's. vs. Holcomb, 7 0. B. G. 555. S'eigned issue. 373 86. When husband and wife are properly made defendants to a bill, the complainant is entitled to a joint answer, and a separate answer may be suppressed. — ib. 87. When the complainant 'is'entitled to an equitable answer, he may appeal, if the defendant is permitted to set up usury without offering to pay the sum actually due. — ih. 88. In setting up a defence of usury in a suit in chancery, the defendant must, in his answer, as^.in'a plea of usury in an action at law, set out the particular facts and circumstances of the supposed usurious agreement, that the court may see that the agreement was in violation of the statute. — Taylor vs Morris, 7 0. E. G. 606. X...REPLICATI01f. 1. On a bill by the holder of a mortgage last given but first recorded, denying notice of a mortgage prior in date, and answer averring notice, and replication ; the cause being brought to a hearing on bill, answer and replication, it was decreed for the complainant. — Taylor vs. T/iomas, 1 Hal. 331. 2. Where the bill alleges absence from the state more than seven years,'and that the! party had not been heard from, and thereupon founds a presumption of his death ; and the answer admits the absence, but denies that he has not been heard from, upon information and belief, and replication and hearing thereon, held, that the presump- tion of his death must stand. — Smith vs. ex'rs. Smith, 1 Hal. 484. XI...PEIGNED ISSUE. 1. In cases of real difficulty growing out of contradictory testi- mony, or opposing facts and circumstances, which it is impossible for the court to reconcile, an issue is directed to inform the conscience of the court. — Miller vs. Wade, Sax. 205. S?4 fRACTiCfi. PRACTICE I. Process. XXVII. Report. II. Petition. XXVIII. Exceptions. III. BUI. XXIX. Hearing and Rehearing. IT. Amended Bill. XXX. Decree. V. Supplemental Bill. XXXI. Money in court. VI. Bills of Revivor and Review. XXXII. Ne Exeat. VII. Cross Bill. XXXIII. Alimony. VIII. Bill of Interpleader. XXXIV. Feigned Issue. IX. Demurrer. XXXV. Decision at Law, X. Plea. XXXVI. Writ of Assistance. XI. Answer. XXXVII. Usury. XII. Replication. XXXTIII. Injunction. XIII. Abatement. XXXIX. Attachment. XIV. Jurisdiction. XL. Attachment for Contempt. XV. Notices. XLI. Partition. XVI. Motions. XLII. Lunatics. XVII. Orders. XLIII. Frauds by Incorporated XVIII. Publication and service. Companies. XIX. Rules. XLIV. Receivers. XX. Waiver. XLV. Relief. XXI. Election. XLVi: A-Ppeal. XXII. Irregularities. XLVII. Prerogative and Orphans' XXIII. Dismissal. Courts. XXIV. Consolidation. XL VIII. Miscellaneous. XXV. Reference. XLIX. Costs. XXVI. Testimony and affidavits. L..PROCESS. 1. Where the complainant omits to have the subpoena served and returned at the time it was made returnable, the injunction will be dissolved. — West vs. Smith, 1 G. 309. 2. It is not essential that a subpoena be served by the sheriff or coroner. It may be served by a private person, but in such case an affidavit must be made of the manner and time of service, and upon the return of the writ, a rule must be taken on the defendant to plead, answer, or demur, at or before the next stated term of the court. — ih. 3. Process on the original bill should be served before supple- mental bill is filed. — Outwater vs. Berry, 2 Hal. 63. 4. The court will not allow its process to be disregarded or evaded on mere technical grounds'. — Endicott vs. Mathis, 1 Sto. 110. 5. The actual domicil of the wife is not the legal domicil of the husband ; nor can it be regarded, contrary to the fact, as his actual ffiTITIOS. 375 residence within the meaning of the statute regulating the service of process. — McPherson vs. Howell, 2 B. 35. 6. Circumstances under which the want of subpoena on the original bill was held not to be good ground of general demurrer to the supplemental bill. — Outwater vs. Berry, 1 Hal. 63. 7. A subpoena must be taken out with the injunction, and made returnable within the time prescribed by the rule for a return of service of the injunction. — Lee vs. Gargill, 2 Sto. 331. 8. The rule requires the injunction to be served within ten davs after the issue thereof, and a return of service made to the court within twenty days after such service. — ih. 9. The issuing of the subpoena, except in cases to stay waste, before the filing of the bill, is irregular, and, if promptly brought to the notice of the court, the subpoena, on motion, will be set aside. — Crowell vs. Botsford, 1 C. E. G. 458. II...PETITION. 1. Where a dispute has arisen between the complainant and defendants, upon a decree, common to both of them, ordering the sale of certain mortgaged premises, to pay the amounts due the com- plainant and defendants upon their mortgages as to what that decree embraces. A petition presenting fully the difference between the parties is a proper remedy. It is not necessary to file a bill. — Crane vs Bingham, 3 Sto. 29 2. The answer of the wife should be put in without oath, and the denial of the adultery should be introduced in the petition for alimony, and the petition be under oath.' — Bray vs. Bray, 2 H. 27. See also Anthony vs. Anthony, 3 Sto. 70. — Dickerson vs. Canfield, 3 Sto. 259. 3. On an application, by petition, verified by the affidavit of the party, to set aside a sale, the material facts alleged in the petition must be proven. The afSdavit of the party, except as to facts peculiarly within his own knowledge, must be supported by other evidence. — Coxe vs. Halsted, 1 G. 311. 4. Where a motion is made, founded on prior proceedings in the cause, to require trustees, who are defendants, to give security, or to discharge them, and appoint a receiver, the proper procedure is by petition. — Holcomb vs. Coryell, I B. 289. 5. Under the practice of this court, a. sale, after delivery of the deed, will be opened on petition, upon the same grounds as, under the English practice, a sale would be opened after confirmation. — Camp- Mi vs. Gardner, 3 Sto. 423. 3,t6 AMENDED SllL. 6. The petition, though sworn to, is no evidence of the facts con- tained in it. Its truth must be established by affidavits and other evidence, taken according to the rules and practice of the court. — Carpenter vs. Miichmore, 2 McC. 123. III...BILL. 1. It seems, that where the bill charges that one of two joint debtors 'is insolvent, the court, especially in favor of a surety, will sustain the bill against the representatives of the other. — Hazen vs. Dwling's adm'r., 1 G. 133. 2. It is a proper object for a bill of discovery, to ascertain, in a case where the defendant's title can only prevail upon the ground of his being a lona fide purchaser without notice of the plaintiff 's title, whether he had such notice, and to call upon him to disclose all the circumstances which may go to probe his conscience upon that point. — Howell vs. Ashmore, 1 Sto. 82. 3. A suit brought by a creditor, under the acts of March 20th, 1845, (pamph. laws 141,) and April 12th., 186 4, (pamp laws 794,) must be brought for himself alone, and not for himself and such other credi- tors as may join him therein. — Whitney .vs. Rohbins, 2 0. E. G. 360. IT...AMEFDED BILL. 1. Where the bill has been sworn to, and an injunction issued and served, no alteration shall be made to the original bill on file, but the amended bill must be engrossed anew, and annexed to the original. — Layton vs. Ivans, 1 G. 387. 2. The general principle is, that a party is bound to state all his case in his first bill. But if the complainant, after filing his bill, discovers that he has omitted to state any matter, or to join any person as party to the suit, he may supply the defect by amend- ment. — Buckley vs. Corse, 1 Sax. 504. 3. If the defendant has answered, and the complainant thereby obtains further knowledge of facts or circumstances which may aid him in the case, he may amend his bill, and proceed according to the information thus obtained. — ib. 4. In general, any imperfection in the form of a biU may be remedied, as occasion may require, if application for that purpose is made in time. — ib. AMENDED BILt. STf 5. Before replication, the order to amend is granted of course. — ib. 6. After an injunction dissolved on the merits, the party may- amend and obtain an injunction on the amended bill. — ih. 7. First amendments are frequently allowed on coming in of the answer, without special aflBdavits, on reasonable terms. — ih. 8. Injunction bills have been amended without prejudice to the injunction, and even amended a second time ; but the application for such second amendment must disclose its nature, and be founded on affidavit that the complainant had not a knowledge of the facts so as to enable him to bring that case on the record sooner. — ih. 9. What the afSdavit on which an application for leave to amend an answer or file a supplemental bill, should, in general, state. — Bell vs. Hall, 1 H. 49 ; Smallwood vs. Lewin, 2 B. 123. 10. Bill amended after final hearing. — Davison vs. Davison, 1 B. 246; Reed's ex'rs.. vs. Reed, 1 0. E. G. 248. 11. When the complainant, being a corporation, sues by wrong name, the bill may be amended in this respect, at the hearing. — Hohohen Building Association vs. Martin, 2 B. 427. 12. On a bill filed for specific performance of a contract for the exchange of real estate, an application, made after the cause was at issue, and after the time limited by rule to close testimony had expired, to amend the bill, by charging that the contract is fraudu- lent, and asking that it be declared void, must be denied. Amend- ments are allowed in equity with great liberality, but, as a general rule, amendments which seek to make a new case inconsistent with that originally made, if allowable at all, should be app'.ied for and made before the cause is at issue. Mere formal amendments, such as the introduction of new parties, or amendments to the prayer of the bill, to meet the exigency of the case, will be made up to and after the final hearing. — Codington vs. Mott, 1 McO. 430. 13. The proper practice where complainant has mistaken his case, is to dismiss the bill without prejudice to a new bill. — ih. 14. Applications to amend should be made promptly after the necessity for the amendment has been discovered. — ih ; see also Campion vs. Kille, 1 McO. 229. 15. Where a bill was filed against a railroad company for an injunction to restrain the construction of a railroad, and a rule was granted to show cause why an injunction should not issue, at the time fixed for the hearing of the rule, and after the papers in the case had been read on such hearing, the complainants asked for leave to amend their bill to supply an omission which had been made the ground of objection in the defendant's answer. Granted. — Del. and Rar. Canal, &c., and A. R. R. Co. vs. Rar. and D. B. R. R. Co., 1 McO. 445. 25 378 AMENDED BILL. 16. The practice, when the husband improperly joins with the wife as complainant, is not to dismiss the bill, but to give permission to the wife to amend by adding a next friend, and making the hus- band a defendant, or, when no objection is interposed, to decree the fund to be paid to a trustee for the use of the wife. — Johnson vs. Vail 1 McO. 423. 17. The objection to such misjoinder may be taken by demurrer, but it constitutes no ground for dissolving the injunction, if one has been granted. The bill may be amended after injunction granted without prejudice to the injunction. — ib. 18. Complainant allowed ten days to amend his bill by making the residuary legatee a defendant, if he so elect ; otherwise, leave given to the legatee, within thirty days thereafter, to appear and answer the bill in its present form. — Melick vs. Melick's exW., 2 C. E. G. 156. 19. Before issue joined, where the pleadings on file have not been sworn to, amendments to the bill are permitted, as the purposes of the party may require. — Seymour vs. Long Dock Go., 2 0. E. G. 169. 20. After issue joined and before the taking of testimony, the complainant will be permitted to withdraw his replication and amend his bill, as his case may require. But after witnesses have been examined, the time for allowing amendments, except the addition of defendants, or such as do not substantially alter the case, has passed. — ih. 21. If the bill is defective for want of parties, the complainant will be permitted to amend by adding the proper parties. So leave will be given at the hearing to amend, when a matter has not been put in the bill with sufficient precision ; also to amend the prayers, for relief, or any clerical mistake or mistatement. — Seymour vs. Long Dock Co., 2 C. E. G. 169. 22. After general demurrer for want of equity, amendments are granted only where there is some defect as to parties, or some omis- sion or mistake of a fact, or circumstance connected with the substance of the case, but not forming the substance itself. — tb. 23. "Where, upon the final hearing, or even after appeal, it appears clearly from the evidence, that the complainant has a case which entitles him to relief, but which, by reason of some defect or omission in the charges or allegations of the bill, is not brought fairly within the issue, he will be permitted to adapt the allegations of the bill to the case as proven. Such amendment, however, will only be allowed after the testimony is closed. — ih. 24. The allowance of amendments after issue joined, is a matter of indulgence, to be granted in the discretion of the court. — ib. StrPPtEjtENTAt BILL. ^10 V...SUPPLEMENTAL BILL. 1. A general creditor, having filed his bill for relief against a judgment confessed by his debtor, as fraudulent, was permitted, after a decree pro confesso against the defendants, and an ex parte hear- ing upon the evidence, to file a supplemental bill, in order to incor- porate in the record the facts, that after the commencement of his §uit in this court, the complainant obtained a judgment and sued out execution at law. — .Edgar vs. Clevenger, 1 G. 258. 2. It is irregular to file a supplemental bill without leave for that purpose first obtained of the court. — Allen vs. Taylor, 2 G. 435. 3. But where no objection has been taken to the regularity of the proceedings on this ground, it will be considered as waived by a voluntary appearance and demurrer by the defendant. — ih. 4. An application for leave to amend an answer, or file a supple- mental bill, after depositions have been taken, should be listened to with distrust. — ib., and Vandervere vs. Heading, 1 Sto. 446. 5. After the taking of testimony, if there be an imperfection in the frame of the bill, if the case as stated is insufiicient to warrant the rehef prayed for, or to ground a complete decree, if son;ie other point seems necessary to be made, or some additional discovery is found requisite, the complainant must resort to a supplemental bill. — Seymour vs. Long Dock Co., 2 G. E. G. 169. 6. Where the proposed amendments would change the issue, or introduce new issues, or materially vary the grounds of relief, they must be introduced by supplemental bill. — tb. 1. A supplemental bill is proper to bring in as a party, a person who has acquired an interest in the controversy after the commence- ment of the suit, as assignee or successor to an original defendant, although such assignee or ■ successor will, in general, be bound by the decree and proceedings. — William vs. Winans, 5 0. E. G. 392. 8. But when such person is made a party by supplemental bUl, whether filed by himself or the complainant, he comes before the court in the same plight arid condition as the former party, is bound by his acts, and may be subject to aU the costs and proceedings from the beginning of the suit. It is merely a continuance of the original suit, and whatever evidence was properly taken in the original suit may be made use of in both suits, though not entitled in the original suit. — ib. 9. Any defendant in a supplemental bUl, may demur upon the ground that the bill is not properly supplemental, but that it seeks to make a new and different case from the original bill, upon new matter. — ib. 380 CE0S8 BILL. 10. "Where a party has acquired an interest in the matter in con- troversy after the commencement of the suit, involuntarily, by the act of the law, as in case of an assignee in bankruptcy or insolvency, it is necessary, in order to bind such party, that he should be made a party by supplemental bill. In other cases it may be expedient, but is not necessary. — ih. VI...BILL OP EKVIVOR AND REVIEW. 1. If a suit becomes abated, and nothing but the death of the party is necessary to be established to show the liability of the survivors, a bill of revivor alone is sufficient, but when new matter must be shown and proved, then a supplemental bill must be filed.— 1 G. 363. 2. A defendant having a beneficial interest may exhibit a bill of revivor for the purpose of appealing from the decree. — Peer vs. Cooherow, 2 B. 136. 3. The court will not before granting leave to file a bill of review, inquire whether the petitioner can prove the fapts set out in his petition. If the facts and matters set forth in his petition, verified by his own oath, are such as to lay a sufficient foundation for a bill of review, it is all that is required. — Quich vs. Lilly, 2 G. 255. 4 The party will be required to file his bill of review within a limited time, and to deposit with the clerk of the Jcourt at the time of filing the bill, one hundred dollars, as security for costs. — ih. 5. When a sole plaintiff or defendant dies after the decree, either party may revive the suit. — Benson vs. Wolverixm, 1 C. E. G. 110. 6. When a sole plaintiff or defendant dies before decree, the suit cannot be revived at the instance of the defendant, or of his legal representative. — Benson vs. Wolverton, ICE. G. 11 0. The statute has provided a more expeditious mode of proceeding by order, instead of resorting to a bill of revivor. — ib. VII...CROSS BILL. 1. The filing of a cross bill does not, as a matter of course, stay the proceedings in the original suit, witliout an order of the court to that effect. — Williams vs. Carle, 2 Sto. 543. 2. A cross bill filed by two of the defendants, who had put in their answers disclaiming any interest in the original suit, and the OEOSS BILL. 381 cross bill alleged that the answers were filed through mistake, &c., the pleadings incongruous and irregular; the proper course is to apply for leave to withdraw their answer — ih. 3. "Where a cross bill is necessary. — Chandler vs. Herrick, 3 Sto. 497 ; Speer vs. Whitfield, et. at, 2 Sto. 107 ; Ames vs. N. J. Franhlinite Co., 1 B. 66. 4. Upon a bill filed to settle the accounts of one partnership, a settlement of the accounts of another and different partnership' can- not be effected upon the defendant's order. The remedy is by cross bUl. — Brewer vs. Norcross, 2 C. E. G. 219. 5. For many purposes, an original and cross cause in chancery are considered as one suit, and ordinarily heard together, and the rights of all parties, in respect to the matters litigated are settled by one decree. The answer of the defendant to the cross bill, may be considered as substantially, and for all practical purposes, a replica- tion of the defendant's answer to the original bill. — Whyte vs. Arthur, 1 C. E. G. 521. 6. In general, a defendant cannot have any positive relief against the complainant, even as to the subject matter of the suit, except by cross bill. — Scott vs. Lalors' ex'r., 3 0. E. G. 301. 7. But where the complainant bases his right to relief upon an agreement for farming on shares, and prays for an account and equal division of part of the proceeds taken by the defendant, the defend- ant is entitled to an account of so much as has been received by the complainant, and will not be compelled to file a cross bill for that purpose. — ih. 8. A mortgage cannot be reformed, corrected, or declared void, for fraud or mistake in the consideration, in a suit brought to foreclose it, nor can that suit be defended on such grounds. The only remedy is by cross bill for that purpose ; and upon such cross suit, the answer of the complainant to the original suit is evidence, so far as responsive to the bill. — Graham vs. Berryman, 4 C. E. G. 29. 9. A defendant, ignorant of facts which entitles him to file a cross bill, until the depositions of complainant's witnesses reveal such facts, if he files his cross bill without unnecessary delay, cannot be deprived of the benefit of such facts at the complainant's instance. — Berryman vs. Grahami, 6 C. E. G. 370. 1 0. An interlocutory decree made at the hearing in a foreclosure suit, on bill, and the answers of two defendants, one of which charged that the mortgage of the other was void for usury, does not adjudicate upon the validity of such mortgage by not directing an account tff be taken of the amount due upon it. The question between the two defendants is still open and is proper to be brought up by a cross bill. — Vandeveer's adm'r., vs. Holcomb, 6 0. E. G, 105, 382 PLEA. 11. A cross bill against a complainant should, in general, be filed at the time of filing the answer, and in all cases before closing the testimonj'. But the first rule does not apply to a cross bill by one defendant against another, nor doesthe last, to cases where no testi- mony has been taken. — ih. 12. In strict practice, a complainant is put to his supplemental bill, and a defendant to his own cross bill, to raise a defence, arising pendente lite, affecting a co-defendant. — Bank of Metropolis vs. !^prague, 6 C. E. G. 530. 13. A defendant cannot impeach the mortgage of a co-defendant by an answer. A cross bill is necessary for that purpose. — Brinker- hoff vs. Franklin, 6 C. E. G. 334. TIII...BILL OF INTERPLEADER. 1. A bill of interpleader will not be sustained, unless there is a well founded apprehension of danger from conflicting claims to the fund in dispute. — Blair vs. Porter, 2 B. 267. 2. A bill of interpleader is only proper, where there is a claim by different parties to the same fund or assets in the hands of a third party, for which he has a right to ask to be discharged. — LeddeVs ex'r. vs. Starr, 5 0. E. G. 274. IX...DEMURRER. 1. If the defendant is properly charged in the bill, as executor, or devisee, or in any other special capacity, it is no ground of demurrer that the subposna is issued to him generally, without stating the character in which he is sued. — Walton's ex'rs. vs. Herbert, 3 G. 73. X...PLBA. 1. Upon a bill filed, and injunction allowed, to restrain proceedings at law, and a plea of a judgment recovered, upon whicii issue was joined and proofs taken in support of the plea. The facts appearing to be proved, the injunction was dissolved, and the bill dismissed with costs. — Oammann vs, Traphagen's ex'rs., 1 Sax. 230. ANSWER. 38S 2. If the defendant interposes a plea in bar to the whole bill, and the complainant does not reply, but is disposed to question its validity, instead of the complainant's demurring to it, the defendant must set it down for argument, and this answers to the demurrer at law. If the plea should be decided not to be good, the defendant must answer the bill ; if it is sustained, the complainant must reply to it. — Flagg vs. Bonnell, 2 Sto, 82. .3. "When he does reply and takes issue, the determination of that issue is final. — tb. 4. Leave to file a plea, after demurrer overruled, will not be granted, if it. is manifest that the plea offered, if true in fact, would be no bar to the relief sought by the bill. — Seely vs. Price, 1 H. 231. 5. Where a plea of a former suit pending is pleaded, the com- plainant may take issue upon the facts of the plea, or a reference to a master to ascertain the fact, whether both suits are for the same matter. If he does neither, then the defendant must set the plea down for argument. The statute requires this. — McEwen vs. Broad- head, 3 Sto. 129. 6. "When the plea is thus set down, the only question for the court to determine is whether the plea is good in point of form. If the plea is decided good, the complainant may still reply, if he desires, or he may take a reference to a master to ascertain the fact upon which the plea rests. — ih. XI...ANSWER. 1 . In a mere matter of form sought to be corrected in the answer, a mistake apparent on the face of the paper which can be corrected without prejudice to complainant, is not so serious, yet the court has always acted with commendable caution. The defendant shoonld immediately, upon the corrections being made, reswear the answer. The court will never make such an order where the plaintiff can be at all prejudiced by it. — Vandervere vs. Beading, 1 Sto. 446. 2. Under some circumstances, an answer may be amended in other respects than mere form . But no case can be found, where a defendant has been permitted to take an answer absolutely off the file of the court, and substitute another in its stead. — ii. 3. The practice now is, not to permit an amendment of the answer filed, but to allow the defendant, upon a special application setting out particularly the amendment, to file a supplemental answer. — ib. 4. "Where husband and wife are made defendants to a bill in equity, the husband must appear for both, and the complainant is entitled to a joint answer. — Collar d vs. Smith, 2 B. 43. 384 ANSWEE. 5. If the husband is unable to put in a joint answer, or if the wife desire to answer separately, or the husband is .not in a situation to answer for her, an order for a separate answer must be obtained — ib. 6. If either husband or wife answer separately, without an order authorizing it, such answer will be suppressed as irregular. — ib. 7 The answer must not only be joint, but must be sworn to by the wife, or it will be irregular ; but the irregularity will be waived by the complainant filing a replication. — ib. 8. A defendant coming in without unnecessary delay, by motion or petition, after a decree pro confesso regularly taken, will, upon any reasonable ground of indulgence, be permitted to answer upon payment of costs. — Emery vs. Downing, 2 B. 59. 9. A corporation aggregate must answer under the seal of the company. They may adopt and use any seal pro hac vice. If the seal is dispensed with, it should be by leave of the court and for good cause shown. — Ransom vs. Stonington Svgs. Bk. 2 B. 212. 10. In case of a bill for a specific performance of an agreement for . the sale of land, containing averments of a parol enlargement of the time of payment, possession, and the erection of permanent improve- ments, the injunction will be dissolved upon the filing of an answer denying those averments. — Gariss vs. Oariss, 2. B. 320. 11. If an answer is so evasive that it is obviously a mere delusion, if there is no answer to any of the material facts stated in the bill, and no reason assigned for not answering them, it will be considered as no answer ; and, the court will order it to be taken from the file. If, on the other hand, it be an answer, however defective, the complainant must either file exceptions or a replication, or set down the cause for hearing upon bill and answer. — Travers vs. Ross, 1 McC. 254. 12. A motion to amend a sworn answer in a material matter, must be made upon notice, and be supported by affidavits. — Huffman vs. Hummer, 2 C. E. G. 269. 13. A sworn answer will not be permitted to be amended in a material matter by an amendment inserted therein. The amend- ment must be made by leaving the original in its present shape, and filing a supplemental answer containing the proposed amendment. — ib. 14. An application to amend an answer is addressed to the discretion of the court. In mere matters of form, clerical mistakes or verbal inacuracies, great indulgence is shown in allowing amend- ments even in sworn answers. But application to amend in material facts, or to change essentially the ground taken in the original answer, are granted with great caution, and only where it is manifest that the purposes of substantial justice require it. — ib, AUSWEB. 385 15. K the defendant is absent from the country, his oath to the answer must be taken under a commission. — Stolesbury vs. Vail, 2 B. 390. 16. A defendant must stand by his answer, although he makes out a good defence by proofs ; if it is not the defence set up in his answer it cannot avail him. — Chandler v-i Herrick, 3 Sto. 497. 17. It is not competent for the complainant to discredit the answer of the defendant, or to impair its effect, by impeaching the general character of the defendant for truth and veracity. — Brown vs. Bradley, 1 McC. 294. 18. If a discovery is necessary to aid a defendant in a defence at law, or otherwise, equity will not require him to answer under oath, and thus be a witness against himself in a matter which wiU. subject him to a penalty or forfeiture, or to any loss in the nature of a forfeiture. — Vandsrveer vs. Holcombe, 2 C. E. G. 87. 19. An answer, fully denying the charges of the bUl, and not impugned or contradicted by any witness, is conclusive as to such charges. — Graham vs. Berryman, 4 C. B. G. 29. 20. Where the bill prays an answer without oath, the answer, though sworn to, is no evidence for defendant, though any facts admitted are conclusive against him. — Hyer vs. Little, 5 C. E. G. 443. 21. Where the bill prays an answer without oath, the answer, if sworn to, is treated as if it were not. — Sweet vs. Parker, 7 C. E. G. 453. 22. The statute (Eev. L. 667 §2) directing that answers to bUls of divorce "shall not be under oath," the answer though sworn to, cannot be considered as evidence for any purpose. — MiUer vs. MiUer, 1 Sax. 386. 23. K there be ground for apprehension on the part of the wife that her husband will not make a proper defence for her, leave will be granted to her to answer separately from her husband. — Rohhins vs. Abraham, 1 Hal. 51. 24. If no replication has been filed, the facts stated in the answer must be taken as true on the hearing. — GaskUl vs. Line, 2 B. 130. 25. A. defendant mortgagee is not bound to put in an\" defence to the answer of a co-defendant, alleging that his mortgage was without consideration, fraudulent and void. Such answer could not be taken as confessed against him. — Brinkerhoff vs. Franklin, 6 C. E. G. 334. 386 ABATEMENT. XII...REPI,ICATION. 1. On a bill for injunction and relief against a verdict and judgment at law, and plea of the judgment in bar supported by answer ; there being no replication filed, the plea, on argument, must be considered true. — Cammann vs. Traphagan's ex'rs., 1 Sax. 28. 2. The mere filing of a replication is not compliance with a rule to speed the cause. — West vs. Page, 1 Sto. 203. 3. A decree rendered against the complainant was opened, upon it appearing that the cause had been submitted to the court by the counsel of the complainant, under the misapprehension that an answer to the replication had been filed. Had the counsel on both sides acted under the same misapprehension, and the evidence in the cause been taken, the filing of the replication would have been regarded as a mere form, and would have been permitted at the hearing as a matter of course. — Oaskill vs. Line, 2 B. 130. 4. Upon replication filed to a plea that there was no promise within six years, an agreement not to take advantage of the statute of limitations cannot be given in evidence ; it is not within the issue. The only question is, whether there was any promise within six years. — Coward vs. Perrine, 6 0. E. G. 101. 5. The old practice would have allowed a rejoinder, that the defendants had agreed not to plead the statute. Now, a rejoinder is not allowed, but the promise should be alleged in the bill, and if omitted by inadvertence, the complainant would be allowed to amend. — ib. 6. "Where a replication is filed, matter not responsive to the bill, but pleaded by way of confusion and avoidance, must be proved, but decree will not be opened for that purpose. — Roberts vs. Birgess, 5 0. E. G. 139. XIII.. .ABATEMENT. 1. The fourth section of the act, entitled "An act to prevent in certain cases, the abatement of suits and reversal of judgment," (Kev. Laws 164) is intended to apply to cases where by the act of law the cause of action survives. The act is designed to save the necessity of filing bills of revivor, not supplemental bills. — Boss vs. Hatfield, 1 G. 363. JUEI8DICTION. 387 XIV...JURISDICTION. 1. Issuing a subpoena against a non-resident, and taking an order for his appearance and publishing the order, will not give the court jurisdiction over his person, or over the subject matter of the bill, if from the nature of the case the court has no jurisdiction over either. — Giffordvs. Thorn, 3 Hal. 90. 2. After the defendant has answered the bill, and depositions have been taken, and the cause brought to a final hearing upon its merits, without objection, it is too late for the defendant to raise the objec- tion, that the cause ought not to have been removed from a court of law into this court, where this court has jurisdiction by the submis- sion of the parties and the subject matter of the controversy. — Bates vs. Oonrow, 3 Sto. 13Y. 3. A bill in equity is not the proper remedy to compel the pay- ment by garnishee of the money attached. — Egbert vs. Hawh, 1 B. 80. 4. Defendants waive their right to except to the jurisdiction of the court, by answering the bill, without interposing such objection. — Morris Canal vs. Jersey Oity, 1 B. 252. 5. It is not the province of this court to correct alleged errors in a judgment rendered by virtue of proceedings in attachment. — Beeves vs. Cooper, 1 B. 223. 6. A creditor cannot file a bill to set aside a transfer of property fraudulently made by his debtor, until he has a judgment or execu- tion, such as would give a lien uppn that property if not transferred. — Green vs. Tantum, 4 C. E. Gr. 105. 7. The equitable jurisdiction of the Court of Chancery in matters of account, is concurrent with that of coarts of law, and no precise rule can be laid down as to the cases in which it will be exercised. — Seymour vs. Long Dock Co., 5 C. E. G. 396. 8. The jurisdiction is often exercised, because a court of equity has better means than a court of law, of ascertaining' the rights of the parties. — ib. 9. The court cannot take jurisdiction of the case, on the ground of account, or of discovery, or of preventing a multiplicity of suits. NesMt vs. St Pat. Ck, 1 Sto. 76. 8. While the court, in its discretion, may dismiss a bill for an account at the hearing, for want of jurisdiction, yet if the defendant has submitted to the jurisdiction, and has not made objection by demurrer or answer, he cannot, as matter of right, insist, at the hearing, that the case is not one of which the court should take cognizance, unless the court is wholly incompetent to grant the relief sought by the bill. — Seymour vs. Long Bock Co., 5 C. E. G. 396. 388 NOTICES. 11. A bill for the mere recovery of a trivial amount, will be dis- missed upon special motion, or by the court of its own motion at the hearing ; but if it seeks to establish a right of a permanent and valuable nature, the jurisdiction of th=) court will be maintained. — Swedeshorough Ch. vs. Shivers, 1 0. E. G. 453. XV...NOTICBS. 1. Notice of argument left at the solicitor's dwelling house, in his absence, is good service. — Taylor vs. Thomas, 1 G. 106. 2. Notice good though dated on Sunday. — ih. 3. A notice of a motion to dissolve an injunction " for irregularity in the proceedings " is insufficient. The notice should state the irregularity. — Miller vs. Traphagan, 2 Hal. 200. 4. In case of confirmed madness, notice may be dispensed with, but then only by the express order of the court. Matter of Daniel Vanauken, 2 Sto. 186. 5. No specific time is fixed by the practice of the court. It must be a reasonable notice. — ib. 6. A notice given on Saturday of the execution of a commission on Tuesday following is insufficient. But when the alleged lunatic appears upon such notice by counsel, and makes no objection, but consents to an adjournment to a future day, the insufficiency of notice is thereby waived. — ib. 7. To bar a claim against an estate, under the rule limiting credi- tors, (Nix. Dig. 589 §70,) there must be proof that the notice was advertised or set up as required by law. — Petrie vs. Voorhees ex'r., 3 G. E. G. 285. 8. When the notice required to be given to an absent defendant, was not entitled in the cause, and not directed to the defendant, nor mailed within twenty days after the date of the order, such defendant was held not to be within the jurisdiction of the court, and that no decree could be made against him. — Karr vs. Karr, 4 0. B. G. 427. 9. A motion to dismiss because an appeal does not lie, requires notice. — Bk. of Metrop. vs. Sprague, 6 0. E. G. 458. PtJBLICATlON Aljtl SEEVlOE. 389 xvi...m:otion-s. 1. "Where the facts are all before the court, application to vacate a decree or set aside an order, may be made npon motion merely. It is not necessary to file a petition. — Collins vs. Taylor's exWs., 2 G. 163. 2. No one but a party to a suit can make any motion in it, except lor the purpose of being made a party. — Linn vs. Wheeler, 6 C. E. G. 231. XTII...ORDBRS. 1. An order allowing a defendant to examine his co-defendant as a witness, will always be granted, upon a suggestion that the party to be examined has no interest in the cause, leaving the question of interest to be settled at the hearing upon the proofs. — Neville vs. Demeritt, 1 G. 321. 2. Under the statute in New Jersey regulating the practice in chancery, the defendant, under the usual order to answer after demurrer overruled, cannot file a plea. — While vs. Bummer, 1 G. 527. 3. An order for maintainance pendente lite will not be made in behalf of a widow on her bill for dower. — Rockwell vs. Morgan, 2 B. 119. 4. It is the practice upon filing a report on exceptions to an answer, to take an order that the same shall be confirmed, unless cause be shown in eight days after the service of the same. — Weher vs. Weitling, 3 C. E. G. 39. XVIII...PITBLICATION AND SERVICE. 1. Where any of the defendants reside in this state, and are served with process, it is not necessary, unless under special circum- stances, that the order for the appearance of absent defendants should be published in any newspaper out of the state. Foreign publication is only required where all of the defendants reside out of the state. — Wetmore vs. Dyer, 1 G. 386. 2. The publication and service of the order upon an absent defend- ant, instead of a notice, as required by Rule 145, after May 1st, 1867, is a formal objection, (See Rules 24, 25, 26 and 27.) It 390 IStFMTtOS. must clearly appear that the notice was sent to the defendants post oiKce address. — Rogers vs. Rogers, 3 C. E. G. 445. XIX...RULES. 1. A defendant who has been allowed to proceed with the suit in the complainant's name, under Eule 14, Sec. 9 (See Rule 93), may- enforce the payment of his demand by means of such suit, though the complainant's debt be paid in full, or he have given the mort- gagor further time. — Young vs. Young, 2 C. E. G. 161. 2. If a defendant fails to notice his demurrer for argument, and the complainant omits to take advantage of the failure at the first term thereafter, he may do it at a subsequent term, without first taking an order on the defendant to bring it to argument, but in that case he should serve the rule to answer on the defendant before taking a decree pro. con. — Neshit vs. St. Pat. Ch., 1 Sto. 76. 3. When any matter of proceeding or practice is required by statute or rule of court to be within a certain number of days, the first day, or terminus a quo, is excluded. — Thorne vs. Mosher, 5 C. E. G. 257. XX...WAIVER. 1. Where an answer is filed, to which there is neither exception nor replication, the cause should be set down for hearing upon bill and answer; and a decree pro confesso, and order of reference can- not be taken, except by consent of the defendant. But where the cause is conducted and the decree taken, at the instance of the defendant who has answered, his entering the decree is a waiver of his rights and a consent to the decree.— ^ Young vs. Young; 2 C. E. G. 161. XXI...ELECTION. 1. A suitor cannot be compelled to elect between a suit in equity to prevent future injury, and a suit at law to recover damages for past injury. A suit in equity cannot be delayed until the determina- tion of a suit at law, where it is for a different object. — Carlisle vs. Cooper, 3 C. E. G. 241. tEEBGtTLAEITIES. 391 2. "Where a plaintiff sues both at law and in equity for the same thing, he will, after answer filed, be put to his election, in which court he will proceed ; and if he elect to proceed at law, or neglect to make his election in proper time, his bill will be dismissed. Free- man vs. Staats, 4 Hal. 814. 3. Where no steps have been taken in the suit at law, but testi- mony has been taken on both sides in this court relative to the same claim, and the suit has proceeded in this court without objection ; the complainant will be considered as having made his election, and any further proceedings at law will be stayed by injunction, ib. XXII...IRRBGULARITIES. 1. Although in the record of a judgment adduced in sup- port of a plea, it appears that there was a verdict and judgment rendered upon the trial of an issue in fact, without an issue at law upon demurrer joined in the case being disposed of, and that there was a blank left in the judgment for the amount of the taxed costs": These errors and irregularities are to be corrected in some direct proceeding, and are not subject to exception when the proceedings are collaterally drawn into question. — Cammann vs. T'raphagan's ex'r., ISax. 230. 2. The joint and several answers of a married woman and her trustee, to a bill against her trustee, her husband and herself, put in without leave of the court, may be suppressed for irregularity. Bob- bins vs. Abraham, 1 Hal. 16. 3. "When a cause in a divorce suit is referred to a master, it is irregular to examine a witness before another master. Cook vs. Cook, 2 B. 263. 4. An irregularity in the bill or affidavit upon which an injunction is allowed, is not waived by filing an answer and moving to dis- solve the injunction, if the answer is not relied on in support of the motion to dissolve. — Perkins vs. Collins, 2 G. 482. 5. If an injunction is allowed upon an insuflScient aflBdavit, it is not merely an irregularity, but an error, to which the principle of waiver does not apply. — ib. 6. A deficiency in the verification of the charges in the bill, can- not be supplied upon the hearing of a motion to dissolve the injunc- tion — ib. 7. Where the irregularity is merely technical, application to set aside proceedings must be made at the first opportunity. If any other step is taken, the court will not interfere to correct the irregu- larity.— CroweZ? «s. Botsford, 1 C. E. G. 458. 392 ijisMissAL. 8. The issue of the subpcsna before bill flled, is a purely technical irregularity, and is waived by an appearance. — ib. 6. A capias, where a ne exeat should have been sued out and a bond taken thereon, simply to appear at court in the cause on the first day of the next term, is irregular and will be set aside. But the order being right, the defendants were ordered to give bond with security to answer and abide the decree of the court. Upon these terms writ and bond set aside with costs. — MaeDonough vs. Gaynor, 3 C. E. G. 249. XXIII...DISMISSAL. 1. Where a bill has been filed by one of several legatees, for his share of a legacy, against the executors and other legatees, and an interlocutory decree has been made, establishing the right of the legatees to recover — the complainant cannot, after such decree, dismiss his bUl, to the prejudice of the legatees who are defendants, without their consent ; and if such order of dismisal be made, it will be vacated and set aside, except so far as respects the complainant; and the interlocutory decree, and the master's report thereon, will be deemed valid and effectual so far as respects the other legatees. — Collins vs. Taylor^ s exr's., 3 G. 163. 2. Order of dismissal, as it respects parties prejudiced therebj', vacated after the lapse of three years from the date of the order. — ih. 3. Where no decree has been made, the complainant may settle with the executor and have his bUl dismissed. — Bullock vs. Lilly, 1 H. 77. 4. The bill, upon which the usual order for an injunction to issue on filing the biU, should be filed without delay, whether the injunction be used or not, or the injunction will be dissolved and the bill dismissed, with costs. — Stimson vs. Bacon, 1 Sto. 144. 5. A complainant cannot be permitted to have his bill dismissed without costs, unless by the consent of the defendant in open court, or by an agreement in writing. — Fisher vs. Quick. 1 Sto. 312. 6. The bill will not be retained when the question in controversy is a mere question of law. — Newkirk vs. Morris, 1 B. 62. 7. A complainant cannot dismiss his own bill, as to part of the relief prayed, and proceed with the residue; he must apply to amend.— G & A, R. R. Co., vs. Stewart, 4 C. E. G. 69. 8. A bill will be dismissed as to such complainants, as at the hear- ing, are decided to have no cause of complaint. — Veghte vs. Water Power Co., 4 0. E. G. 142. feEfEEENOi;. 393 9. A bill will not be dismissed upon motion of the defendant, lor want of equit}^, where the court cannot adjudge that under the bill the complainant will not be entitled to relief at the hearing, upon any evidence that he can offer. — Carlisle vs. Cooper, 3 C. E. G. 241. 10. Though a bill may be dismissed for want of equity, the court will not make such an order without argument and examination, though the master may, from his view of the evidence, recommend in his report, that course to be taken. — Blauvelt vs. Aekerman, 5 C. E. G. 141. 2XIV...C0NS0LTDATI0N. 1. It is within the power of a court of equity to consolidate actions with or without the consent of the complainants. The order of consolidation is not of right, but is a matter of discretion, and upon such terms as the court may direct. — Burnham vs. Dalling, 1 C. E. G. 310. 2. Where two bills were filed by the executors of two several testators, who were tenants in common of all their property, and devised it to the same persons ; where the parties interested, and their rights, where the same under both wills; the two suits on their hearing, may be consolidated, so that one investigation and report of the master, and one decree, may settle the whole. — Freeman vs. Staats, 4 Hal. 814 XXV...REPERENOE. 1. On a bill for foreclosure, against infants and others, where any of the defendants have answered, the complainant cannot enter a rule of course to refer the cause to a master, except by consent of such defendants as have answered, or their solicitor. — Faitoute's ex'rs., vs. Haycock, 1 G. 105. 2. To obtain an order of reference to a master, to inquire whether one who had been declared a lunatic, is restored, &c., a petition of the person who had been so declared should be presented. — In re Eobt. Price, 4 Hal. 533. 3. Allowance fixed without reference to a master, the amount of the husband's estate being before the court. — Cory vs. Cory, 3 Sto. 400. 4. In a foreclosure suit, when an answer has been filed by a junior encumbrancer, which neither denies the amount claimed, nor the 26 394: TESTIMONY AND AFFIDAVITS. order of priority, an order of reference cannot be made unless by consent, witliout setting the cause down for hearing/ — Wright vs. McKean, 2 B. 259. 5. Where a lien claim was filed to include several buildings, or buildings standing on distinct lots, without, specifying what portion of the debt is claimed as a lien upon each building, the Chancellor ordered a reference to a master to ascertain and report definitely, the situation of the buildings, the manner of using the same, and the proportions of labor and materials furnished by the several lien claimants for the respective buildings. — Morris Co. Bh. vs. Rockaway Mn'fg Co., 1 McC. 189. 6. The court will give special directions to the master as to the manner of taking the account, and the principles by which he should be governed in taking it. — Hudson vs. T. L. M. M. Co., 1 0. E. G. 475. 7. In a suit upon a parol agreement, void by the statute of frauds, the complainant is bound by the agreement, as stated in the answer. — Petrick vs. Ashcroft, 5 C. E. G. 198. 8. Where, in such a case, it is referred to a master to state an account, the account should be made pursuant to the statement of the answer. — ib. 9. Eeference to a master; with specific instructions, to ascertain and report whether partition cannot be made by payment of owelty ; if not, sale will be ordered, and improvements allowed for out of proceeds. — Hall vs. Piddock, 6 0. E. G. 311. XXTI...TESTIMONY AND AFPIDATITS. 1. In cases of waste, affidavits are admissable in support of the bill, to prove acts of waste. — Merwin vs. Smith, 1 G. 182. 2. An objection to the competency of a witness ought to be made at the time of taking the deposition ? — Howell's ex'rs., vs. Auten 1 G. 44. 3. Where new matter is contained in the answer, not responsive to the bill, which is relied upon as a ground for setting aside the injunction, the complainant may read affidavits in contradiction of such new matter. — Merwin vs. Smith, 1. G. 182. 4. Where the interest of the witness may be released by the party offering him, and no objection is made to the witness on his examin- ation, an objection made for the first time at the hearing, will not be sustained, without giving the party offering him an opportunity to release that interest and to re-examine the witness. — Neville vs. Demeritt 1 G. 321. Testimony and affidavits. 395 5. Parties are always examined as witnesses, by the very terms of the order; subject to all just exceptions at the hearing. But wit- nesses not parties, should he objected to at the time of their exam- ination. — Neville vs. Demeritt. 1 G. 321. 6. A complainant will not be ordered to answer interrogatories which are not filed within fifteen days .after filing the answer, unless a sufficient reason be disclosed, to excuse the neglect on the part of the defendant, to file his interrogatories pursuant to the rule of the court, — Phelps vs. Curtis, 1 G. 387 7. The object of examining a party under oath, is to make a discovery of the facts supposed to be within his knowledge, and of which the evidence cannot be otherwise attained. — Jackson vs. Jack- son's ex'rs., 2 G. 96. 8. In all matters of account in equity, it is the peculiar right of the party who seeks the account, to examine the accountant under oath, and thereby test his conscience as to facts and circumstances material to the investigation of truth and the ends of justice. — ib. 9. The mode of examination of a party in the English practice, is by written interrogatories, and there can be no cross examination ; but in New Jersey the practice of oral examination, as well in rela- tion to parties as witnesses, is universal ; and the practice of cross- examination by counsel, it seemsj is also universal. This practice approved by the court. — ib. 10. A party before a master cannot be cross examined generally. He cannot make evidence for himself, by the introduction of facts or matters not the subject of inquiry on original examination. He can only be called on to explain, or to make such statements as may prevent misunderstanding, or rebut any unfair inference that may arise from the answer. — ib. 11. To examine a witness more than once without leave, is opposed to the policy not only, but to the rules and practice of the court. — Delany vs. Noble, 2. G. 441; Crawford, et, al., vs. Bertholf et. al., Sax. 458. 12. It is expedient, but not essential to the validity of an affidavit, that the place where the affidavit is taken should be inserted in the jurat. — Perkins vs. Collins, 2 G. 82. 13. The place of taking an affidavit is a matter in pais, and if legall}"- questioned must be proved aliunde. — ib. 14. A commission for the examination de bene esse of a non-res- ident infirm witness may be awarded before issue joined. — Leonard vs. Sutphen, 3 Hal. 545. 15. The affidavit required by statute to be made by the plaintiff, on his taking a judgment by confession on bond and warrant of 396 TESTIMONY AND AFFIDAVITS. attorney, must show a debt existing at the time of the entry of the judgment. — Blackwell vs. Rankin & Lee, 3 Hal. 152. 16. Depositions ta.ken on a preliminary matter, after bill filed, and before the time had expired for any further pleading, were per- mitted to be read on the final hearing, so far as they were relevant to the matters in issue and which were involved in the prelimin- ary maiiex. ^Holcombe vs. Holcombe, 2 Sto. 234. 17. The rule of the court (Rule IX, 4, See Rule 43), in terms requires that affidavits annexed to an answer shall be merely in reply to affidavits annexed to the bill ; and it would seem but a fair and reasonable construction of the rule, that affidavits to rebut an answer should be confined to rebutting the affidavits annexed to the answer. —B. & R. Canal Co., vs. R. & D. B. R., Co. 1 McC.- 445. 18. Where, however, the answer is put in by a corporation, the affidavits necessarily cover the whole scope of the answer, and in such case the rebutting affidavits proposed to be taken are within the scope of the rule. — ih. 19. Such affidavits must be taken on notice. Exparte affidavits taken under the requirements of Rule 5, are not competent. — ih. 20. The application for the order to take affidavits should be made before the reading of the case is commenced. Circumstances of the case held to justify a departure from the ordinary practice. — ih. , 21. It is not in accordance with the practice of the court to sup- press testimony before the hearing, even though the evidence be incompetent. — Brown vs. Buckley, 1 McC. 294. 22. Depositions, when objected to as taken upon leading interrog- atories, or as scandalous, or for some irregularity in relation to them, are suppressed prior to the hearing, and in such case the witness will be permitted to be re-examined. — ih. 23. The question whether the deposition shall be suppressed, is a matter of discretion ; and in order that this opinion may be reviewed on appeal, if complainant desire it, decision of the question reserved until the final hearing, and motion denied but without costs. — ih. 24. No order is needed for the examination of a co-defendant, since the act of 1859 (Nix. Dig., 928, § 34), nor is it any objection to "his competency to testify, that he has suffered a decree pro confesso against him. The complainant may, at his discretion, require him to answer ; but if he do not, his failure, cannot deprive his co-de- fendant of his testimony or disqualify himself, as a witness in the cause. — Giveans vs. McMurtry, 1 C. E. G. 468. 25. Upon a bill for an account, the only material evidence upon the original hearing, is that which conduces to prove the com- plainants' right to an account. The ordinary decree is that an account shall be taken. Evidence as to particular items of the TESTIMONY AND AFFIDAVITS. 397 account is irrelevant, and, in strictness, inadmissaWe at this stage of the cause.— Hudson vs. T. L. S M. M. Co., 1 C. E. G. 475. 26. Where the evidence has been taken upon both sides before the hearing, without objection, it may be used by the court, so far as may be necessary, in giving directions. — ib. 27. The responsive allegations of an answer are evidence against the complainant, but never against a co-defendant. — Vanderveer vs. Holcomhe, 2 C. E. G. 547. 28. Whatever may be the rule at law where depositions have been taken de bene esse, under the statute, to be used on the trial of an issue at law, the practice in courts of equity, where all the testimony is taken before examiners prior to the hearing, to admit the deposi- tions of witnesses who were competent witnesses when examined, is well settled. The provisoin the act concerning witnesses, passed in 1859, has not changed the practice in that respect. — Marlatt vs. Warrick, 4 C. E. G. 439. 29. The deposition of a witness before a master must be signed by the witness ; if not signed, it is imperfect, and cannot be read at the hearing. — Flavell vs. Flavill, 5 C. E. G. 211. 30. The deposition of a witness who, after his direct examination, secretes himself so that he cannot be cross examined, will be suppressed. — ib. 31. The laws of this state, and the authorities upon the subject reviewed. The English rules stated. — ih. 32. The affidavits to the bill and answer are not evidence at the final hearing. — Atty^y Gen. vs. Stewart, 6. C. E. G. 340. 33. A divorce is never granted when the only proof of the ground of divorce is the testimony of the complainant. — Palmer vs. Palmer, 7 C. E. G. 88. 34. Two witnesses are not necessary to overcome the positive and direct response of the defendant under oath in his answer, but it may be overcome and a decree made, either upon the strength of two witnesses, or one alone, with corroborative circumstances, giving a turn to the balance or a preponderance of proof in favor of the com- plainant, and thereby producing conviction to the mind. — Bent vs. Smith. 7. C. B. G. 560. 35. Every person, whatever his office or dignity, is bound to appear and testify in courts of justice when required to do so by proper process, unless he has a lawful excuse. — Thompson vs. German Valley, B. Co. 7 C. E. G. ILL 36. An order to testify, is an unusual practice, and ought not to •be made against the executive of the state. — ii. 37. In the case of the executive, the court would hardly enter- tain proceedings to compel him to testify by adjudging him in con- 398 EEPOET. tempt. It will be presumed that the chief magistrate intends no contempt. — ih. 38. Evidence taken under an order of the prerogative court to be used upon the hearing of an appeal, is competent. — Sayre's Adm'r. vs. Sayre. 1 0. E. G. 505. XXVII...RBPORT. 1. The report of a master on exceptions to answer is brought before the Chancellor, not by exceptions to the master's report, but by appeal. — WJieeler vs. Redmond, 2 Hal. 153. 2. When the order of reference, on a decree pro con. directs that notice of proceeding before the master be given to the defendant, a rule to confirm the report of the master 7usi should be entered on the part of the complainant. — Brundage et ux. vs. Goodfellow, 4 Hal. 513. 3. The errors of a master, in permitting the cross examination of a party to be extended to improper matters, does not necessarily vitiate the whole report. If the same result is fairly attainable from a view of the evidence, without the aid of the erroneous examina- tion, the report will be confirmed. — Jackson vs. Jackson's ex'rs., 2 G. 96. 4. It is improper for a master in his report to argue a case upon its merits. The province of a master is to report facts and not argu- ments, for the information of the court. — ib. 5. Where the master, not supposing it referred to him, expresses no opinion on a material point ; if either party have farther evidence, and desire it, a farther reference will be ordered. — Butch ch. at Free- hold vs. Smock, Sax. 148. 6. The master having stated executor's accounts jointly, and it not appearing by which of them the excess of the debts &c. over the personal estate was advanced, a farther reference ordered. — ib. 7. The report of a master upon the accounts of receivers requires confirmation, and may be 'excepted to. The several items of the account may be investigated. — Richards vs. Morris Canal and Banking Co., 2 G. 428. 8. The court will not interfere with the report of a master, upon a- question of fact submitted to him, depending upon the credibility of witnesses, unless the error of the master is satisfactorily and clearly made to appear. — Sinnickson vs. Bruere, 1 Sto. 659. 9. When the decree, directing the account to be taken, was a final decree with no equity reserved, and when no further directions need to be given consequent upon the master's report, an error made EXCEPTIONS. 399 by the master, as to the value of the property, can be corrected by the court, without referring the account back to the master for a restatement, or setting down the cause for further hearing. — Huston vs. Cassidy. 1 McC. 320. 10. The master's authority, as to the subjects and extent of his examination and report, is limited and controlled by the order of reference. — Stonnington Svgs. Bk. vs. Davis, 2 McO. 30. 11. Where a master s report is in a great measure based on erron- eous views with regard to some important matters referred to him, it will be referred anew, so that the report may be in conformity with the views of the court. — Blauvelt vs. Ackerman, 5 C. E. G. 141. XXVIII...EXCEPTIONS. 1. Exceptions to the master's report must be filed within eight days. — Taylor vs. Thomas, 1 G. 106. 2. By the English practice, exceptions to the accounts of a receiver as stated by a master, should be taken before the master, while the account is in his possession and before he makes his report. — Mech's. Bank of Phila. vs. Baiilc of New Brunswick, 2 G. 437. 3. This practice has been generally acted on in this state ; it is beneficial, and might safely be pursued in all ordinary cases. But there has been no actual recognition of the rule, except in cases where a draft of the account was served, and the party omitted to make any exceptions or suggest any alterations to' the master. — ib. 4. Notice should be given of an application on behalf of the creditors, for leave to file exceptions to the master's report. An order for leave to file exceptions, made without notice, discharged. — Richards vs. Morris Canal & Bk. Co., 2 G. 428. 5. The appeal given by the act (Nix. Dig. 99, §29,) is taken, by filing exceptions to the master's report, within eight days from the service of the rule, which is the mode of bringing objections to the reports of masters before the Chancellor to review. Filing exceptions to a report is a sufficient and the usual showing cause against its confirmation. — Weber vs. Weitling, 3. 0. E. G. 39. 6. Upon exceptions to a master's report upon a question of fact, the court will come to a conclusion upon the evidence, irrespective of the master's opinion. The report is not entitled to the same weight as the verdict of a jury, upon a motion for a new trial, m a court of law. — Holmes vs. Holmes, 3 C. E. G. 14]. 7. The report will not be overruled, although the evidence upon which it is founded is vague and not altogether satisfactory, if it does not appear that his conclusion was unwarranted by the evidence. — «6. 400 HEARING AND EEHKAEING. 8. When the defendant is in laches in not procuring the master's report, the proper remedy is by an order, that he procure the report in a time stated, or that the exceptions be dismissed. — C. & A. R. R. vs. Stewart, 4 0. E. G. 343. 9. The rule to file exceptions and refer them to a master, is for the relief of the court. They may be heard directly by the Chan- cellor at his option. — ib. XXIX...HEARING AND REHEARING, 1. On a petition and order for rehearing generally, the whole case is open ; and the party supposing himself aggrieved, has a right to insist upon a reconsideration of any part of it. — Glover vs. Hedges, Sax. 113. 2. Upon hearing, on bill, cross-bill, answers and depositions, where both causes came on to be heard together ; and each party has material allegations to sustain under their respective bills ; the com- plainant in the original bill is entitled to the opening and reply. — Murphy vs. Stults, Sax. 561. 3. When a petition is presented, and an adverse party has a right to be heard in opposition, the usual proceeding is lo take a rule, or order, fixing a day for the hearing. Copies of the petition and order are served on the opposite party, and the parties are heard upon affidavits. The petition itself is n"o evidence of the facts stated in it. They must all be proved aliunde. No answer to the petition is required. — Crane vs. Brigham, 3 Sto. 29. 4. If the abscence was involuntary or accidental, and a defence was intended to be made, the remedy is by petition to the Chancellor for a rehearing.— Tbionserac? vs. Smith, 1 B. 350. 5. A rehearing in equity rests in the discretion of the court. It is not by the courts of this country regarded so much a matter of course, as it is in the English practice. — N. J. Zinc Co. vs. N. J. Franhlinite Co., 1 McC. 309. 6. The court always inclines to grant a rehearing upon the usual certificate of counsel, if, upon the matters stated in the petition, there is apparent ground for apprehending that an error has been committed or injustice done by the decree, or if there is reason for believing that a further and fuller argument, will shed new light upon the controversy, or advance the ends of justice. — ih. 1. A rehearing may be ordered at any time before the decree and proceedings are enrolled ; but it is a matter of discretion, not of right. — Brumagim vs. Chew, 4 G. E G. 337, BEGEEE. 401 8. It is always granted, when the Chancellor sees reason to appre- hend that a mistake may have been made in the decision, either in law or in fact, but never when the introduction of new evidence is necessary to show the mistake. — ih. 9. This court may order a re-argument while a cause is still pend- ing and before the papers have been remitted. — King vs. BucJcman, 7 C. B. G. 551. 10. Query. "Whether motion for a re-argument will in"' any cas be entertained, unless it proceed from some member of the court who concurred in the judgment ? — ib. XXX...DECEBB, 1. Where a sole plaintiff or defendant dies after the final argu- ment, but before the decree, the court may order the decree to be signed as of date prior to the death of the party. — Benson vs. Wol- verton, 1 C. E. G. 110. 2. A decree, pro confesso, may be taken at any time, after the time limited for the defendant to plead, answer or demur, has expired. It may be taken without notice, and as of course, unless it appear that some prejudice will thereby accrue to the adverse party. — Oakley vs. O'Neill, 1 G. 287. 3. Where the complainant's mortgage covers several parcels of land, which are covered by, subsequent incumbrances, the decree may direct the whole of the property to be sold, and the proceeds applied to satisfy as well the subsequent incumbrances as the mortgage of the complainant ; and although the complainant's mortgage is satis- fied by the sale of part of the premises, the sheriff may proceed to a sale of the remainder to satisfy subsequent incumbrances. — My vs. Perrine, 1 G. 396. 4. But if any of the defendant's mortgages cover more property than the complainant's mortgage, the decree cannot direct a sale of that part of the premises not covered by the complainant's mort- gage. — ib. 5. The decree must not go beyond the relief prayed in the bill, and that is confined to a foreclosure and sale of the premises described in the bill. — ih. 6. A final decree will not be opened, on the application of the defendant, five and a half years after the decree was made, and four and a half years after it came to the knowlege of the defendant, upon the ground of the pecuniary inability of the defendant to make the application at an earlier day. — Robertson vs. Miller, 2 G. 451. 402 DECREE. 7. Applications to open decrees address themselves to the sound discretion of the court. They should be listened to, generally, with great caution, and should not be granted when the result would be injurious to the complainant. — ib. 8. "Where the master has reported the amount due upon several mortgages, and also their order of priority, and upon exceptions taken to the report the order of priority is changed, a final decree may be taken at once, without a reference back to the master. — Chance vs. Teeple, 2 G. 173. 9. A final decree after enrollment, and execution issued thereon, and after the lapse of nearly three years from the date of the decree, will be set aside, for the purpose of correcting a plain and gross mistake in the master's report, although the defendant appeared and demurred to the bill of complaint, and afterwards suffered a decree pro confesso to be taken against him, and an ex parte report to be made by the master.- — Miller vs. Rushforih, 2 G-. 174. 10. If a case be once properly before the court, the court will do all in its power to settle the rights of all the parties in the matter in controversy, justly and equitably by one decree. — Coiise vs. Boyles, 3 G. 212. 11. Decree opened, after enrollment, and on motion, on application of subsequent mortgagee to charge the complainant, to whom a prior mortgage had been assigned when he was tenant of the premises under the morgagor, and who filed a bill to foreclose the prior mort- gage and remained in possession in the meantime, with reasonable rent. — Moore vs. Degraw, 1 Hal. 346. 12. The decree must conform to the bill, and be warranted by it, both in the relief and in the grounds of relief Relief not embraced in the prayer of the bill cannot be decreed, nor can relief asked for be granted upon grounds not disclosed by the bill. — Ryerson vs. Adams, 2 Hal. 618. And see Jordan vs. Clark, 1 C. E. G. 243. 13. A court of equitj' will not look back of the decree of another court, to inquire into the merits of the case, if there was no fraud in the procurement of the decree. — Sinnickson vs. Bruere, 1 Sto. 659. 14. "When a party seeks to avoid a decree rendered in a cause in which an appearance was entered for him by a solicitor, on the ground that the court had no jurisdiction over his person, he must show affirmatively, that the solicitor had no authority to enter his appearance. — ib. 15. A decree which does not dispose of the whole merits of the cause, but leaves important questions for further examination and the future judgment of the court, is not a final decree, within the meaning of the act which requires that all appeals except from final decrees, shall be made within forty days after filing the order or DECREE. 408 decree appealed from. — Newark Plamh Road Co. vs. Elmer, 1 Sto. 754. 16. The court will open a decree obtained by surprise, but not where a party has had notice of the suit, and has had an opportunity of making his defence, and has neglected to do so. — Miller vs. Hild, 3 Sto. 25. 17. A decree will not be opened on the unsupported affidavit of a defendant, that the complainant verbally agreed not to prosecute the action. — Marsh vs. Lasher, 2 B. 253. 18. The decree, having been duly made and filed, ma}' be subse- quently authenticated by the signature of the presiding judge. — HiUyer vs. Schenck, 2 McO. 501. 19. A decree 2"'o confesso, signed after the time' for answering has expired, is regular, though an order for further time to answer be signed and filed on the same day, with the signing of the decree.— Emery vs. Downing, 2 B. 59. 20. But if it appear, upon 'an examination of the answer, that it con- tains no valid ground of defence, the decree will not be opened. — ih. 21. After a decree ^ro confesso. order of reference, and report of master, the decree will be opened, and the defendant let in to answer, if the equity of the case requires such relaxation of the rules of the court. — Williamson vs. Sykes, 1 B. 182. 22. The general rule is, that a decree, regularly entered and enrolled, cannot be altered except by bill of revivor. — Carpenter vs. Muchmore, 2 McC. 123. 23. Great liberality has been exercised ih the opening and correct- ing of decrees before enrollment, and even afterwards, (where the decree has been taken pro confesso) for the purpose of rectifying mistakes apparent upon the face of the proceedings, or where there is a clear case of surprise and merits. A defendant, who has been negligent in inquiring as to his rights, cannot allege surprise. — ih. 2 1. Parties are bound to take notice of the acts and decrees of the court regularly made. — HiUyer vs. Schenck, 2 McC. 501. 25. If, however, the decree is made privily, without full notice to the appellant, or if tlie fact of the decree be intentionally concealed, or its existence denied, or any artifice or fraudulent practice resorted to, to deprive him of the opportunity of appeal, the right of appeal, will not be lest. — ib. 26. A party in interest having died since the argument, and before the signing of the decree, the decree, and orders in the cause, should be signed and filed as of the date of the argument. — Burnham vs. Bailing, 10 B. G. 310. 27. An order for that purpose is necessary. — ih. 404 DECREE. 28. "When the title of cestui que trusts to the fund in question is involved, no decree will be made unless they are before the court. — Reed's exrs. vs. Reed, 1 C. E. G. 248. 29. No change in the mode of appropriating the^proceeds of sale, specifically disposed of by decree and execution, can be made, except by opening and correcting the decree and altering the execu- tion. This can only be done upon notice. — Liihauer vs. Royle, 2 C. B. G. 40. 30. In a court of equity a decree may be made determining the rights of co-defendants in a controversy between themselves, in which the complainant has no interest ; and semble, the party aggrieved, may appeal from such decree. — Vanderveer vs. Holcomh, 2 C. E. G. 547. 31. When, upon the hearing, the evidence as to the facts in con- troversy is entirely satisfactory, the court will not order an issue or wait for the result of a trial at law, before making a decree. Nor will it on the hearing refuse relief, because the complainant has delayed his suit, if it is clear upon the evidence that he ought to have relief — Carlisle vs. Cooixr, 3 0. E. G. 241. 32. A decree cannot be made as to any who are not parties to the soit.— Armstrong vs. Armstrong, 4 0. E. G. 357. 33. When, pending a suit hy a husband and wife, for the specific performance of an agreement to convey real estate to the wife, the wife dies, and her children have not been made complainants, and there is no order that the suit should prodeed in the name of the surviving complainant, no decree can be made. — Hand vs. Jacobus, 4 C. E. G. 79. 34. An enrollment will be vacated and decree opened, wheii the decree has been made unjustly, against a right or interest that has not been heard or protected ; when this has been done without -the laches or fault of the party who applies. — -Brinkerhoff vs. Franklin, 6 C. E. G. 334. 35. When a party is brought into equity, he is entitled to an equitable decree according to his case as it then exists. — Bank of Metropolis vs. Sprague, 6 0. E. G. 530. 36. Decree opened, sheriff's sale set aside, and mortgagor let in to make defence, on the ground of surprise and sacrifice. — Smith vs. Alton, 7 C. E. G. 572. Nil ExiiA'r. 405 XXXI...MONEY IN OOURT. 1. When the amount awarded to be paid by a raih'oad company, under the act of incorporation, for land taken, or damages done by them, is directed by the statute to be paid into the court of chancery for the use of the owner or owners of the lands, no notice to the company is necessary, of an application by the owners, for an order upon the clerk, to pay over the money so deposited. — Ex parte Van Vorsfs heirs' 1 G. 292. 2. An order to pay over the money so deposited, will not be made, without reference to a master to ascertain the rights of the applicants. — ih. 3. Where, upon petition for surplus money, an order of reference is made to a master, the master must make his report, and a final order of the court made in the premises, before the money can be paid over. — Ex parte Allen, 1 G. 388. 4. In a foreclosure suit, in which a judgment creditor in attach- ment claims the surplus money, it cannot properly be paid to the plaintiff in attachment — the auditors are^the persons entitled to receive it. — Brantingham vs. Brantingham, 1 B. 160. X2XII...NE EXEAT. 1. Application to discharge a ne exeat, not having been made out until after the cause was noticed for final hearing, refused. — Miller vs. Miller, Sax. 386. 2. The aflidavit, on which the application for a ne exeat was made in a divorce case, was made before the petition for divorce was filed. Ne exeat denied. The proper course is, to file the bill or petition for divorce, and after that, to file a petition for the ne exeat, supported by the necessary affidavits, sworn subsequently. — Bylandtvs. Bylandt, 2 Hal. 28. 3. Upon a bill for alimony only, the court may make an order for a ne exeat before alimony is fixed. — Yule vs. Yule, 2 Sto 138. 4. The affidavit of the wife alone is sufficient to support the order. — ih, 5. The affidavit should show that the defendant intends going abroad. — ih. 6. In some cases it will be sufficient if the intention of the defendant's going abroad is sworn to upon information or belief. — ih. 1. It is not necessary that the defendant should be actually in the state when application is made for the writ of ne exeat. — Parker vs. Parker, 1 B. 105. 406 • ALtMONIf. 8. Nor is it necessary that he should be a resident of this state. — ib. 9. In some cases, when the court feels itself cousLrainsd to dis- charge the writ, it will direct the defendant to give security to abide the decree. — ih. 10. A writ of ne exeat will not issue unless there is a debt due from the defendant to the complainant, or unless the complainant is entitled to an account. — Williams vs. Williams, 1 G-. 130. ] 1. The writ of ne exeai will issue only for an equitable demand ; and an action for an account is an equitable demand for which it will issue. — MacDonough vs. Gaynor, 3 C. E. G. 249. 12. It must appear by positive proof that there is a certain sum actually due, except in account, when the proof must show some sum due, the amount of which may be sworn to according to belief — ih. 13. The writ will be issued against a non-resident, temporarily here, even if not in the state at the time ; and it is not necessary that it should appear that he is about to depart to avoid the jurisdic- tion, if his departure will defeat the suit. — ih. 14. If the writ is served, no subpoBua is necessary ; and the party cannot be discharged upon affidavit, but must make answer. — ih. 15. In cases where the court feels constrained to discharge the writ, it will often require security to abide the decree. — ih. XXXIII...ALIMONT. 1. If the answer is sworn to, it may be used as an affidavit on a motion for aJiimouj pendente lite. — Anthony vs. Anthony, 3 Sto. 70. 2. The usual course is, to refer it to a master, to ascertain and report what ought to be paid for the wife's support. But testimony having been taken, and the matter debated on the hearing, and neither party requesting a reference, the allowance was fixed by the court. — Mil- ter vs. Miller, Sax. 386. 3. Application to increase or diminish the allowance of alimony maybe made by petition. — Snover vs. Snover, 2 B. 261. 4. All the facts upon which an order for alimony is founded, must be proved. The order must not rest upon mere presumption or conjecture. — Walling vs. Walling, 1 C. E. G. 389. 5. In a suit against a husband for alimony under the tenth section of the divorce act, it is proper to allow the wife counsel fees and also temporary alimony, pendente lite. — Vreeland vs. Vreeland, 3 0. E. G. 43. fElGNED ISSUE. 407 6. Counsel fees and alimony, pendente lite, are only allowed to a wife. — ib. 7. "Where the circumstances upon which a proper adjustment of alimony materially depends, do not appairin the petition, a reference to a master will be ordered, to ascertain the real facts of the case. — Walling vs. Walling, 1 C. E. G. 389. XXXiy...FBIGNED ISSUE. 1. Form of directions for prosecuting an ejectment in the supreme court, under the direction of the Court of Chancery, to try questions as to the existence and validit}' of a deed under which the mort- gagor derived title. — Decker vs. Gashey, et. al., Sax. 427. 2. The judge, before whom the issue is tried, should not only return the postea, but go further, and furnish to this court a fair statement of the trial. His certificate has always its weight. — Bas- set vs. Johnson, 1 G-. 154. 3. It is not necessary that the report of the judge should state the evidence and give a minute history of the trial. All that can be required of him is, that he state the general character of the evidence offered, the part objected to, and the decision made upon those objections, with his charge to the jury. — il. 4. If any difficulty exist in relation to the report of the judge, the court will not for this cause alone grant a new trial, but will call on the judge for an additional report of the case. — ib. 5. Where an issue is awarded by the Court of Chancery, to be made up in the Supreme Court, the transcript and postea must be returned to the court awarding the issue, and not the Supreme Court. — Trenton Banking Co., vs. Rossell, 1 G. 492. 6. On motion for a new trial of an issue at law, the state of the case and history of the trial, ought to be prepared by the sohcitor of the party applying for the rule, and submitted to the ^solicitor of the adverse party for his examination, and in case the solicitors are unable to agree, the case to be settled by the judge before whom the issue was tried — ih. 7. This court will, of its own motion, in a proper case, refer a disputed question of fact, to the decision of a jury. Black vs. Lamb, 1 B. 109. 8. The mode of trial before the jury and the effect to be given to the verdict, are matters in the discretion of the chancellor ; he may give directions to the court to which the issue is sent for trial, to disregard the strict rules of law ; and although competent testimony 468 WEIT OF ASBiSTANCE. has been rejected, and illegal admitted, or the judge has misdirected the jury, he is not bound to grant a new U-iul. — Blade os. La/uh, 1 B. 109 ; Mack vs. Shreve, 2 B. 456. 9. The object of an issue out of Chancery, to be tried by a jury, is to inform the conscience of the chancellor, and it is his province to determine what evidence shall be read before the jury. — Black vs. Shreve, 2 B. 456. 10. The granting or refusing issue is a matter of discretion. — Carlisle vs. Cooper, 6 0. E. G. 576. 11. The power of courts of equity, to order the trial of an issue of fact which the court is itself competent to try, ought to be sparingl)^' exercised, and a practice of sending ordinary matter to the decision of a jury, ought not to be established. — tl. 12. Where the truth of facts can be satisfatorily ascertained by the court, without the aid of a jurj^, it is its duty to decide as to the facts, and not subject the parties to the expense and delay of a trial at law. — ii. 13. The fact that an issue has been awarded, and a verdict of a jury rendered in the cause, upon which the decree of the chancellor is based, does not take away, or limit, the control of this court over the decree. — Freeman vs. Stoats, 1 Sto. 816. XXXV...DECISI05r AT LAW. 1. If the legal question as to the title, which was raised by the bUl, was decided by the court of law, and the party had, by the judg- ment and process of the court, been put in possession, this court cannot require better proof of legal title. — Ohert vs. Obert, 2 Sto. 98. 2. Where it appears that, by the judgment of a court in another state, between the same parties, all the material matters of equity relied upon by the complainant in his suit in this court, are adjudi- cated and settled, the bill of complaint will be dismissed. — Brown vs. Lexington & Danville R. R. Co., 2 B 191. XXXVI...WRIT OF ASSISTANCE. 1. After a sale on foreclosure the court will compel the mortgagor, or any person who has come into possession under him, pending .the suit, or whose title is not superior to his, to deliver up the possession of the premises, and will not drive the purchaser to an action of ejectment. — Schenck vs. Conover, 2 B. 220. U8UEY. 409 And this assistance will be extended to a stranger to the record, purchasnig at such sale, as well as to the referee. — ih. 2. The mode of proceeding has been as follows, viz : first, a demend of possession hj the purchaser of the tenant in possession, accompanied by an exhibit of the deed from the sheriff or master ; second, order to deliver possession ; third, injunction ; and fourth, writ of assistance. — ih. 3. The exercise of the power rests in the sound discretion of the court. It will never be exercised in a case of doubt, nor under color of its exercise, will a question of legal title be tried or decided. — ih ; and see Fackler vs. Worth, 2 B. 395. ■ 4. The writ of assistance can only issue against persons who are parties to the suit, or who came into possession under a defendant after its commencement. — Blauvelt vs. Smith, 1 C. E. G. 31. 5. But in all cases, the parties in possession and against whom the writ is applied for, should have notice of the application, and are entitled to be heard on it. — ib. 6. The writ is a summary process, only used when the right is clear, and when there is no equity or appearance of equity in tha defendant, and when the sale and proceedings under the decree are beyond suspicion. — ib. XXXVII...trSURY. 1. "When a defendant is asking, as a matter of favor, to be per- mitted to defend, neither a court of law or of equity, will grant the request, if the defence rests on the ground of usury. — Marsh vs. Lasher, 2 B. 253. 2. The court will not extend the time for answering in order to admit the defence of usury. — Collard vs. Smith, 2 B. 43. Where the time has been extended by order of the court, without notice to the complainant, the court will modify the order so as to exclude the defence of usury. — ih. 3. When, after the time for answering has expired, the complain- ant grants an extension, the defence of usury will not be permitted to be set up. Contra, where such consent is given before the defend- ant is in laches. — ib. 4. Where a party comes into a court of equity seeking relief against a usurious contract, he must offer to pay the sum actually due. — Ware vs. Tompkins^ ad/m'r., 2 B. 66. 5. If, in a suit to foreclose a mortgage, the owner of the equity of 27 410 INJUNCTION. redemption, and a subsequent mortgagee, are both defendants, and both answer (the subsequent mortgagee setting up his mortgage, and asking that the amount due on it shall be paid), and the owner admits the existence of the mortgage, but sets up that it is void for usury, the second mortgagee will be considered, as between him and the owner, the actor, and the owner will be permitted to set up and prove the usury, without offering to pay the money advanced. — Van- devere vs. Holcomi, 2 C. E. G. 547. 6. When a final hearing is had upon bill and answer only, by statute the answer must be taken as true, and where there is no con- tradiction, the allegations of the answer that sets up usury, must be taken as true. In such case, the remedy of the defendant, holding the mortgage alleged to be usurious, is by filing a cross bill, or per- haps, by applying to the court for leave to take evidence on this point. — ib. 1. It is no objection to permitting a mortgagor to set up usury against the claim of a mortgagee, made co-defendant, that it deprives such mortgagee of the benefit of his answer. — ib., 87. 8. If the lender come into equity, seeking to enforce the contract, the court will give eflFect to the statute, and declare the contract void. But if the borrower seek relief against the contract, the court will prescribe the terms of its interference. — ib. XXX TIII...IIsr J UNCTION. 1. The distinction in the English books, between a common injunc- tion which issues on some default of the defendant, and special injunctions granted on special application to the court, is of no importance. All injunctions here are granted on the merits and on special application to the court, and generally ex parte on filing the bill. — Buckley vs. Corse, Sax. 504. 2. Where an injunction has been dissolved for want of equity in the bill, the court will not grant an ex parte injunction upon an amended bill, or upon a new bill supplying that equit}^. — Homer vs. Leeds, 2 Sto. 86. 3. On bills to restram the execution of process or the performance of official acts, the sheriff is made a party, as the design of the injunction is to restrain him from acting ; but where no relief is prayed, and no decree asked against the officer, it is not necessary, nor usually expedient, for the sheriff to answer. — Brooks vs. Lewis, 2 B. 214. 4. When the equity of the bill is not denied, or when the facts upon which the equity rests are- admitted, but the answer sets up WJUNOTiON. 411 neyf matter in avoidance, the injunction will not be dissolved or denied upon the answer alone. — The Society vs. Low, 2 C. E. G. 19. 5. "When the answer is not responsive to the allegations of the bill, the injunction will be retained. — Randell vs. Morrell, 2 C. E. Or. 343, 6. The general rule is, that when an injunction has been obtained upon the complainant's afiSdavit alone, and a motion is made by the defendant, upon filing his answer, to dissolve the injunction, affidavits cannot be read upon the argument of the motion, either in support of the bill or answer. — Merwin vs. Smith, ] G. 182. 7. Affidavits will not be admitted in support of allegations con- tained in the bill, and not expressly denied by the answer. The practice of this court is in conformity with the rule adopted by the Supreme Court of the United States, viz : that the allegations of the bill will be taken as true when they are not met and denied by the answer ; and if the answer does not fully meet the case disclosed by the bill, the injunction will be sustained. — Merwin vs. Smith, 1 G. 182. 8. Upon the argument of a motion for an injunction, the answer of one defendant will be received, and heard upon the argument as an affidavit, in answer to the complainant's bill. — Shreve vs. Black, 2 G. 177. 9. A motion to dissolve an injunction for want of equity in the bUl, will be heard before answer iiled — Receivers of Morris Canal and Banking Co. vs. Biddle, 2 G. 222. 10. Where an injunction is granted ex parte, the court will at any time hear a motion to dissolve for want of equity, unless for special cause. — ib. 11. The affidavits of the complainants, made after filing the bill, are not competent to be read upon a motion for an injunction and the appointment of receivers. — Bumdred vs. Paterson Machine Co. 2 G. 294. 12. It is no objection to the dissolution of an injunction, that excep- tions have been filed to the defendants answer. The rule of the English Court of Chancery upon this subject does not prevail in New Jersey. — Wyckoff vs. Cochran, 2 G. 420. 13. The court will hear the argument upon the exceptions to the answer, and upon the motion to dissolve the injunction, at the same time. — ib. 14. Matters of defence, having come to the complainant's knowl- edge since the trial at law, are proper grounds for granting an injunction and requiring discovery. — Camman vs. Traphagan ex^r., Sax. 28. 1 5. But these matters, charged to be within the knowledge of the defendant, who was plaintiff at law, being denied by his answer ; the plea of the judgment allowed with costs. — ib. 412 INJUNCTION. 16. On motion on bill and notice for an injunction and the appoint- ment of a receiver, the affidavit of the defendant may be read in opposition. — Kean vs. Colt, 1 Hal. 365. 17. As a general rule, an injunction will not be dissolved without the answer of the defendant on whom the gravamen of the bill rests. But if the answering defendant is able, from his own connection with the subject matter and consequent knowledge, to lay facts before the court which show that the complainant has no equity, the injunction may be dissolved without the answer of such other defendant. — Gregory vs. Stillwell, 2 Hal. 51. See also Adams vs. Hudson Co. Bank, 2 Sto. 535. Roiinson vs. Davis, 3 Sto. 302. 18. On motion to dissolve an injunction, affidavits in support of the injunction, to contradict matters in the answer alleged to be irresponsive to the bill, cannot be read, if the defendants disclaim and waive reliance on any irresponsive matter. — Miller et. al. Trust, vs. English, 2 Hal. 304. See also Brown vs. Winans, 3 Sto. 267. 19. On a notice of a motion to dissolve an injunction, given before answer filed, an answer filed after the notice, though it be filed ten days before the day fixed by the notice for the hearing of the motion, cannot be read in support of the motion. — Cattel vs. Nelson, 3 Hal. 122. 20. It is not necessary that affidavits annexed to answers should be taken upon notice, or that copies should be served on the adverse party. Where a motion is made to dissolve an injunction upon the answer, affidavits annexed to the answer can only be read in reply to affidavits annexed to the bill. — Oariss vs. Oariss, 2 B. 320. See also Stoteshury vs. Vail, 2 B. 390. 21. Upon a motion to dissolve, the allegations of the answer, supported by affidavits, must be taken as established. — Tainter vs. Morristown, 4 C. B. G-. 46. 22. The truth of responsive allegations in an answer, cannot be tried by the court upon counter affidavits and affidavits in rebuttal, on a motion to dissolve an injunction. — Eaton vs. Jenkins. 4 C. E. G-. 362. 23. Whether notice shall be given, depends on no settled rule of practice, but on the nature of the case. If it be one of great diffi- culty or importance, the court will generally require notice to be given. — Buckley vs. Corse, Sax. 504. 24. After filing the bill, and appearance, application for injunction may be made without notice, and if it be a case that requires it, notice will be ordered. — ib. 25. When application for injunction is made after answer filed, notice is necessary, according to the thirtieth rule of practice ; but even then it may be dispensed with. — ih. INJUNCTION'. 413 26 An injunction allowed by a master after answer, and without notice, is irregular, unless the notice was dispensed with by the master ; which, if it be a proper case, may be presumed to have been done. — ih. 27. If there was no dispensation, the court will not set aside the injunction simply for that reason, if it appear to be a case in which the rule might properly have been dispensed with ; but would retain it and order the complainant to pay the costs of the application. — ih. 28. On the hearing of a motion to dissolve an injunction, upon the defendant's answer to the bill, the charges in the bill, unless met by the answer, are to be taken as true, and the allegations in the answer are entitled to the same credit. — Merwin vs. Smith, 1 G-. 182. 29. A motion to dissolve an injunction will be entertained before answer filed. — Woodhull vs. Neafie, 1 G. 409. 30. Upon motion to dissolve an injunction on the ground that the subpoena has not been served, the sheriff's return to the subpoBua is conclusive, and cannot be contradicted by affidavits, unless collusion be shown between the sheriff and the complainant or his solicitor. — Corey vs. Voorhees, 1 G. 5 ; See also Randolph vs. Daly, 1 C. E. G. 314. 31. "When a motion is made to dissolve an injunction for want of equity in the bill, a general notice is sufficient. But when the party seeks to set aside an injunction as having been informally or improperly issued, either because the facts are not sworn to, or not sworn to before competent authority, or because the money has not been brought into court, or for any special matter not touching the equity of the case, the notice should set out the grounds of the motion. — Morris Canal and Banking Co., vs. Bartlett, 2 G. 9. 32. Upon an application for an injunction, where notice is given, and the parties are heard upon the application, afBdavits taken ex parte, and without notice, may be read upon the hearing. — Harden- hurgh vs. Farmers and Mechanics Bank of New Brunswick, 2 G. 68. 33. If the bill be filed, the defendant may put in an answer, and use the answer on the hearing, not as an answer, but as an affi- davit. — ib.' 34. While a party is in contempt for disobedience to an injunc- tion, he cannot properly have a hearing upon a motion for its disso- lution, but when the nature and extent of the punishment to be inflicted for such contempt, depend on the determination of the question, whether the injunction shall be continued or not, the hear- ing may be allowed. — Endicott vs. Maihis, 1 Sto. 110. 35. A case to be considered an exception to the above rule, should be such, as that a dissolution of the injunction would amount, either to depriving the complainant of all relief, if he finally sue- 414 INJUNCTION. ceeded in his cause, or subject him to some peculiar hardship, while its continuance could be but a temporary inconvenience only to the other party — Leigh vs. Clark, 3 Sto. 110 ; Scott vs. Ames, 3 Sto. 261. 36. Where an answer has been filed, and on a motion to dissolve an injunction, the defendant relies upon anything except the want of equity in the bill and upon this answer, he must specify in his notice, the grounds upon which he rests for a dissolution. — Brown vs. Winans, 3 Sto. 267. 37 It would be contrary to the practice of this court, to dissolve an injunction in a case in which, while the answer of the defendant, who has been restrained, denies the equity of the bill, the answers of other defendants, who are the parties most interested in the sub- ject matter of suit, admit every material allegation on which relief is claimed. — Zabrishie vs. Vreeland, 1 B. 179. 38. "Where the equity is denied, the general rule is, that the injuc- tion should be dissolved. — Central Railroad Co., vs Hetfield, 3 C. B. G-. 323 ; Masterton vs. Barnes, 3 Sto. 26; T^aji Houten vs. First Ref'd Church, 2 C. E. G. 127. 39. New matter set up in the answer will not aid the defenda,nt on a motion to dissolve an injunction. — Morris Canal vs. Jersey City, 1 B. 227. 40. "Where the answer admits all the facts in which the equity of the bill rests, but sets up new matter in avoidance, the injunction will not be dissolved. — Green vs. Pallas, 1 B. 267. 41. To effect a regular service of an injunction, the writ itself, under the seal of the court, must be shown to the party against whom it issues, and a true copy thereof delivered to him. Personal service will be dispensed with when the party is out of the state, or cannot be found, or where circumstances render a special order of dispensaticta necessary or proper. The court will punish the viola- tion of its order for the injunction, though the writ be not served, if it appear that the defendant knew of its existence. — Harring vs. Kaufman, 2 B. 397. 42. Motion for temporary injunction denied until after hearing upon the rule to show cause. — JDel. & Bar. Canal and C. & A. R. R. Co., vs. Rar. & D. R. R. R. Co., 1 McC. 445. 43. On an application to dissolve an injunction for want of due diligence on the part of the complainant, in not taking testimony and setting the cause down for hearing, it is no answer to sa}' that both parties are actors, and that the defendant might have entered a rule to close testimony, taken his evidence and brought the case on for hearing. — Hoagland vs. Titus, 1 McC. 81. 44. "Where an injunction has been granted, the complainant must use due diligence in the prosecutioo of bis cause, or the injunction INJUNCTION. " 415 will be dissolved. — Schalk vs. Smith, 1 McO. 268 ; Huffman vs. Hummer,' 2 C. E. G. 263. 45. The filing of objections to an answer, constitutes no technical objection to the dissolution of an injunction. The court will look into them merely to ascertain whether they relate to the points of the bill upon which the injunction rests. — Robert vs. Hodges, 1 C. E. G. 299. 46. When the injunction is granted contrary to statute, the party is entitled to summary relief. He will not be put to his motion to dissolve. — Marlatt vs. Perrine, 2 C. B. G. 49. 47. A denial by the defendant upon information or belief, will not avail to dissolve an injunction. He must answer upon his own knowledge. — Irish vs. Black, 2 C. E. G. 100. 48. A defect of parties is not necessarily a reason for dissolving an injunction. — ib. 49. An injunction will not be dissolved as of course, even upon full denial of the equity, if the court see good reason for retaining it. — ib; see also Holdrege vs. Gwynne, 3 C. B, G. 26 ; Eaton vs. JeriUns, 4 C. E. G 362. 50 A creditor at large, or before judgment, is not entitled to the interference of this court by injunction, to prevent his debtor from disposing of his property in fraud of his creditor. A bill filed by a creditor of a firm, to restrain an execution creditor of an individual partner from enforcing his lien upon the partnership property, forms no exception to the general rule. — Mittniyht vs. Smith, 2 C. E. G. 259. 51. A denial of the complainant's right, upon an application for an injunction, must be made upon the defendant's knowledge, and not upon his belief or opinion. — The Society vs. Low, 2 C. E. G. 19. 52. The right of a party to an injunction, or to its contmuance, cannot be prejudiced or altered by the mere fact, that the case is heard upon the argument of the rule to show cause why an injunc- tion should not issue, upon the complainant's motion, and not upon a motion to dissolve by the defendant. The defendant, in such case, stands upon the same ground, and with the same right,^ that he would upon a motion to dissolve.^iJ. 53. Upon a motion to disolve an injunction, the court will not undertake to determine points of doubt, or difficulty, upon which the merits of the case may depend, but will leave them to be determined at the final hearing, when the evidence is fully before the court. — Huffman vs. Hummer, 2 0. B. G. 263. 54. The injunction which issued upon the filing of the bill, so far modified as to permit the defendant to proceed with his suit at law, but restraining him from setting up at the trial any other eonstructioa 416 INJUNCTION. of the contract than that adopted by this court. — Timstone vs. De- Camp, 2 C. E. G. .'iog. .55. This court will restrain, by injunction, a mortgagee from selling the equity of redemption, by virtue of judgments, in satisfaction of the mortgaged debt. — Van Mater vs. Conover, 3 0. B. G. 38. .56. A suit at law will not be enjoined because of the refusal of the court to postpone the trial. — Hamilton vs. Dobhs, 4 C. B. G. 227. 57 To dissolve an injunction, the denial of the answer must be of facts within the knowedge of the party denying, under oath. — Higlee vs. C. & A. R. .R. Co., 4 0. E. G. 276. 58. An injunction will be dissolved upon the answer, only when it denies explicitly the facts upon which the equity of the bill is f "lunded ; it is not sufBcient that it denies the inference to be drawn from the facts, or their effect. — leasey vs. Baker, 4 0. E. G. 61. 59. Where the injury to the complainant is of that nature that, while there may be a remedy at law, as by recovery of damages, yet it cannot be adequately relieved by suits for damages, for the reason that it is continually recurring, and will require repeated and continued litigation, a preliminary injunction will be granted to restrain it. — Rogers Loco. Works vs. Erie Railroad Co., 5 E. G. 379. 60. An injunction will not be granted to compel a common carrier to transport goods at the rates fixed by law ; but it will issue to pre- vent a railwa;y company, bound by law to transport goods, from entering into an agreement not to transport them at the rates fixed by law. — ib. 61. A mandatory injunction will not be ordered on a preliminary or interlocutory motion, but only upon final hearing, and then only to execute the decree or judgment of the court. — ib. 62. An injunction will not be granted when the right of the com- plainant on which the relief is founded, or at least the principle of law on which it depends, has not been settled by the courts of law of this state.— aV^&ee vs. C. & A. R. R. Co., 5 0. B. G. 435. 63. An injunction will not be granted when the complainant has a full and complete remedy at law. — ib. 64. Nor where the injury complained of is slight, compared wioh the inconvenience to the defendant and the public, that would result from the injunction. — ib. 65. When an ample remedy for an invasion of the public right by indictment exists, a court of equity will not interfere by injunction at the instance of ihe Attorney General, unless in case of a pressing necessity, to relieve the public travel from immediate and serious inconvenience. — Morris & Essex R. R. Co. vs. Prudden, 5 0. E. G. 530. INJUNCTION. 417 66 The owners of several and disjointed lots of land, having no common interest, cannot join in a bill to enjoin a nuisance common to all, where the grounds for relief are a special injury to each one's property. An information filed in the name of the Attorney General on the relation of such owners, will not, therefore, be considered as a bill filed in their behalf, where the case disclosed is not such that relief can be afforded at the instance of the Attorney General. — ib. 67. A court of equity will not enjoin an offence ag;ainst the public at the instance of an individual, unless he suffers some private, direct, and material damage, beyond the public at large, as well as damage otherwise irreparable. Mere diminution of the value of his property by the nuisance, without irreparable mischief, will not furnish any foundation for equitable relief. — ib. 68. An injunction ought not to be granted, when the benefit secured by it to one party is but of little importance, while it will operate oppressively and to the great annoyance and injury of the other party, unless the wrong complained of, is so wanton and unpro- voked in its character, as properly to deprive the wrong doer of the benefit of any consideration as to its injurious consequences. — ib. 69. A motion to dissolve an injunction restraining a suit at law, will not be granted befoie answer filed, on the ground that the bill on the face of it shows no equity, where a discovery is sought, or where the bill alleges that the obligations sued on at law were given without consideration, and were fraudulently obtained, and the afiSdavits annexed to the bill are sufficient p.rima facie proof that fraud was Used in obtaining them. — Shotwell's adm'x vs. Smith, 5 C. B. G. 79. 70. Where parts of an answer are responsive to the complainant's bill, upon matters within the knowledge of the defendant, and fully deny the equity upon which the injunction was based, it is no reason of denying the motion to dissolve, that the answer in other respects is not a full answer to the bill in other allegations, and that some of the exceptions to the answer are well taken. The English rule that exceptions undisposed of, are a bar to the dissolution of an injunction upon the denials of the answer, has not been adopted in this state. —Mitchell vs. Mitchell, 5 C. B. G 257. 71. On final hearing upon bill and answer, a preliminary injunction will be made^perpetual, where it appears from the pleadings, that the defendants intend to do some act charged in the bill, which would be a nuisance to the public, or an injury to the complainants. — Attorney General vs. Steward, 6 C. E. G. 340. 72. An injunction against a defendant, to restrain him from receiv- ing a sum of money in the hands of his attorney, or from, permitting it to be paid to any one for him, or on his behalf, will not be dissolved on motion of the attorney. — Linn vs. Wheeler, 6 0. E. G. 231. 418 INJUNOTION. 73. An injunction will not be dissolved for new matter in avoid- ance alleged in the answer, and not responsive to the bill. — W. J. R. Co. vs. Thomas, 6 C. E. G. 205. 74. "Whether this court will prevent, by injunction, the permanent appropriation of lands by a railroad company, acting ultra vires, in the absence of irreparable injury. Query ? — M-ie B. vs. D. L. & W. R. R. Co., 6 0. B. G. 283. - 75. Injunction ordered to be set aside, with costs, unless the com- plainant, within three days, deposit • the money or give the security required by the statute ; in which event the injunction to stand. — Marlatt vs. Perrine, 2 C. E. G. 49. 76. "Where the complainant's right is clear, and the infraction of that right established, he will not be required to give security for such damages as the defendant maj^ sustain by reason of the injunction. "Where the injunction deprives the defendant of the enjoyment of the property in dispute, and must prove greatly prejudicial to his interests, if his claim should be established, the complainant must prosecnte the case with dilligence. If laches or want of dilligence on his part be shown, the injunction will be dissolved or security required. — Bodd vs. Flavell, 2 C. B. G. 255. 77. "Where there has been a trial at law, an injunction wOl not be allowed to stay its execution, where there was no surprise, but such as the party might have reasonably anticipated. — Fowler vs. Roe, 3 Sto. 367. 78. Mere delay in applying to the court is frequently a ground for denying a preliminary injunction, and is also a reason for courts of equity refusing to take cognizance of a case where there is a remedy at law. But where the legal right is settled, and the mere efficacious remedy of a court of equity is necessary to complete remedy, delay is no ground for a denial of its aid, unless it is coupled with such acquiesence as deprives the party of all equitable relief — Carlisle vs. Cooper, 6 G. E. G. 576. 79. To entitle a party to a preliminary injunction, his right in the subject matter in dispute, and to the remedy applied for, must be clear to the court, and free from reasonable or serious doubt, or established by proceedings at law. — Hack. Imp. Com. vs. N. J. Mid- land R. R. Co., 7 0. B. G. 94. 80. An injunction will not be granted, unless the right of the applicant, alleged to be violated by the proceedings sought to be restrained, is settled and clear. — Black vs. Del. & Rar. Canal Co., 7 C. B. G. 130. 81. An injunction will not be granted where an action of eject- ment will restore the complainant to all his rights.— Jfon't's Carml & m. Co. vs. Fagin, 7 0. E. G. 430. PABTITION. XXXIX...ATTACHMENT. 419 1. Proceedings by foreign attachment are not void, merely because the defendant was a resident of the state at the issuing of the attach- ment. — Weber vs. Weitlmg, 3 C. E. G. 441. 2. When the afBdavit is regular, and made in good faith, this court cannot collaterally inquire into the fact of non residence and declare the proceedings void. — ib. 3. The estate of a. lunatic may be proceeded against by attach- ment; and he need not appear and be defended by his next friend. — ib. XL...ATTACHMBNT FOR CONTEMPT. 1. A party under an attachment for contempt for an alleged breach of an injunction, is not confined to his answers to the interrogatories exhibited to him, but may examine witnesses to exculpate himself from the charge. — Maginnis vs. Parkhurst, 1 G. 433. 2. Should the depositions on the part of the defendant be talten by leave of the court. Query ? — ib. 3. The party alleging a contempt of court by breach of an injunc- tion, must make it out clearly to the satisfaction of the court. — ib. 4. If the accused deny the contempt, or do not clearly show it by his answers, the prosecutor may examine witness to prove it. — ib. 5. An attachment for contempt, being in the nature of a criminal proceeding, costs are not usually allowed.— zS. XLI...PAETITION. 1. On a bill for partition, if the title is denied, and there are serious doubts raised, the court will not order the commission ; nor will it dismiss the bill, but will retain the bill and afford the com- plainant an opportunity to establish his title at law. — Obert vs. Obert, 2 Sto. 98 ; Lucas vs. King, 2 Sto 277. 2. The practice which prevails in the English court of chancery to file exceptions to the report of the commissioners in partition cases, applies only to the final report of the commissioners on making the partition, and has no application to the report made under the practice in this state, that partition cannot be made without prejudice to the interest of the owners and proprietors.— .6e?i<% vs. Long Dock Co., 1 McC. 480. 420 PAETITION. 3. There is nothing in the general practice of the court to render exceptions necessary. In strictness, exceptions in chancery are limited to answers and io reports of masters. — ib. 4. There is no necessity for filing exceptions to the report of the commissioners, and no propriety in such a course. The proper practice for the complainant, the report being filed, is to apply for a decree for sale. Notice of this application will be given, and the party feeling aggrieved by the report, may present his objections in opposition to the decree for sale. — ib 5. Where a partition has been actually made by the commissioners, the court, by its well settled practice, interferes with their action with great reluctance. It is only when a clear mistake has been made, that their proceedings will be interfered with. — ib. 6. Upon a bill for partition of chattels, by a tenant against a co- tenant, and to restrain him from removing or using the same, or com- mitting any waste thereon, the claim of a third part\' upon the property by way of mortgage, cannot be established by affidavit in opposition to the claim of the bill, upon a preliminary application for an injunction. The alleged fact constitutes no valid objection to the granting of the injuction. — Low vs. Holmes, 2 0. E. G. 148. V. Upon a bill for partition by one tenant in common against another, where the facts constitute a clear case of the use and employment of the property, to the entire exclusion of the com- plainant, a receiver will be appointed. — ib. 8. Order : that the defendant, within ten days from the service of a copy thereof, give bond, with security, to the complainant, to account for and pay over one-half the value of the rents and profits of the property ; and on failure thereof, that an injunction issue to restrain the further use of the property, and that a receiver be appointed. — ib. 9. Where upon a bill for partition, the title is denied, equity m^ retain the suit to give the complainant an opportunity to estab- lis* his title at law. — Dewitt vs. Ackerman, 2 C. B. G. 215. 10. A tenant in common has a right to partition in chancery, if he shows a title to a share. Where the title of the complainant in a bill for partition is disputed, it will not be settled upon the hearing in this court, but the complainant will be compelled to establish his title at law first, and the bill will be retained until he can so estab- lish it.— Hay vs. Estell, 4 C. B. G. 251. 11. Exceptions will not lie to the return of commissioners in a suit for partition. The correct practice in such a case is by motion to suppress the return. — Hay vs. Estell, 4 C. E. G. 133. 12. The court will set aside and quash the return of the commis- sioners of partition, when the partition has been made upon wrong principles, or in disregard of the rights of parties, or where there is L-tfNATiOS. 42l great and evident inequality in the division. But to set aside a partition for mere inequality or improper conduct of the commission- ers, the proof must be clear and the inequality considerable. — ih. 13. The question to be considered by the court, on a motion to . quash the partition, is, whether the inequality is more than can fairly be accounted for by the difference in judgment between men of discretion in valuing the property. — ib. 14. It is not of itself sufficient to set aside a partition, that the commissioners gave to one of the tenants nearly the whole of by far the most valuable part of the tract to be divided. — ib. 15. Eeturn ordered to be quashed and a new commission to issue to other commissioners, unless complainant pay defendant $600, for owelty. — ih. 16. A court of equity will not interfere with proceedings for par- tition, commenced at law, unless such mterference becomes necessary to protect some party thereto from fraud or wrong, or to secure to him some clear right which the law tribunal, from the manner of proceeding before it, cannot secure. For such purpose courts of equity w3l interfere to prevent a failure of justice and loss of vig'a^s.—Hall vs. Piddock, 6 0. E. G. 311. XLII...LirNATICS. 1 . Idiots and lunatics must sue in equity, by their committees or guardians : In this state by their guardians. — Doorsheimer vs. Roor- back, 3 C. E. G. 438. 2. A bill filed in the name of an idiot by a volunteer, styling himself her next friend, not appointed her guardian upon inquisition found, nor authorized by the court to file the bill as her next friend, will be dis- missed on motion of the defendant. — Doorsheimer vs. Roorback, 3 C. E G. 438. 3. This court has the power to make a provisional order to protect the lunatic's property, pending the proceedings under the commission. But there is no precedent for converting the petition into a bill in chancery, making a' case against third persons, and in this way invok- ing the action of the court, upon matters involving the right of others not parties to the proceedings. — Matter of Runey Dey, 1 Sto. 181. 4. "Whether the alleged lunatic may traverse the inquisition, is a matter addressed to the discretion of the court. — Matter of Daniel Vanauken, 2 Sto. 183. 422 I'RAIJDS B-? INCOEPOEA^ED COMPANfES. 5. A petition for a traverse should not be sworn to by the lunatic, but he may be produced before the chancellor for examination. — ib. 6. Eeasonable notice of the time and place of taking an inquisi- tion of lunacy, should be given to the alleged lunatic ; and the want or defect of notice, is not aided by his appearing before the jury and attempting a defence. — Whitenacks case, 2 Gr. 252. 7. An inquisition of lunacy taken without due notice, will be set aside and a new commission awarded. — ib. 8. If necessary, the court will order the party having the alleged lunatic in charge* to bring him before the court. — In re Child, 1 0. E. G. 498. "When the estate of the lunatic is small, the court will, it seems, in order to avoid inconvenience and expense, order a commis- sion to issue to a different court from that in which he resides. — ib. 9. When the alleged lunatic is in an asylum, the commission should be issued in the county where his mansion and estate are, or where he last resided before being sent to the asylum. — ib. 10. This court can and will order a second inquisition of lunac}', when the first is irregular or unsatisfactory, from the finding being against evidence, or by a mistake of the jury as to their duty. Or it- will order a second inquisition at some time after the first, if it appears that there is an evident change in the condition of the subject. — In re Collins, 3 C. E. G. 253. 11. The substitution of a n?w commissioner for one appointed by the Chancellor, without his approval or confirmation, no one of the commissioners being a master of the court, is such an iiTegularity as would set aside the inquisition if urged for that purpose at or before the motion for confirmation, but would be without effect, upon the argument of a rule to show cause why a commission should not issue. — ib. 12. A mere stranger to analleged idiot, with no allegation of rela- tionship to her, or present or prospective interest in her property, cannot appeal from an order appointing her guardian. — Rorback vs. Blarcom, 5 0. E. G. 461. XLIII...FRAUDS BY INC ORPO BATED COMPANIES. 1. It does not follow that because a company is declared insolvent, or because an injunction is granted, receivers wUl be appointed. — Oakley vs. Paterson Bank, 1 G. 173 ; and see Bawnsley vs. Trent. Mut. 1 Sto. 347. Nichols vs. Perry Pat. Ams. Co. 3 Sto. 126. 2. In a proceeding under the act to prevent frauds by incorporated companies, the complainants and all the applying creditors constitute fiECEtVESS. 423 one party. The receivers are their common agents, and the solicitor on record of the complainants is their common solicitor, and regularly all orders and proceedings should be in his name. — M&i: Bh. of Phila. vs. Bk. of JSr. Brum., 2 G. 437. 3. It is irregular for any one of the creditors to appear or act by his own solicitor, without leave of the court for that purpose first obtained. — ib. 4. If any one of the creditors is so situated, as to render it neces- sary that he should be represented separately before the court, application for that purpose should be made; and if substantial reasons are assigned to the satisfaction of the court, the application will be granted. — ib. XIiIY...RBCBITBRS. 1. Generally, a receiver will only be appointed on bill filed for that purpose, and rarely before answer, except under provisions under particular statutes. He will be appointed on petition, only in the cases of infants, whose position as wards of the court, gives them the right to apply by petition, or in cases similarly situated. — LeddeVs exV. vs. Starr, 4 C. B. G. 159. 2. A receiver will not be appointed as against a complainant, upon the application of a defendant. — ib. 3. A motion for the appointment of a receiver is a special motion, of which the opposite party is entitled to notice. — Tibbalsvs. Sargent, 1 McO. 447. 4. The circumstances relied on to excuse want of notice, not sufB- cient excuse for omission. — ib. 5. When a complainant seeks to take the control of property from those having the legal right of possession, delay on his part in advancing his cause, or in making his application, is an objection to the appointment of a receiver. — ib. 6. The appointment of a receiver under the acts of March 20th, 1845, (Pamph. Laws 141,) and April 12th, 1864, (Pamph. Laws 704,) must depend upon the fact, whether any chose in action or property held in trust for the debtor, has been discovered by the answers, examination or evidence. — Whitney vs. Bobbins, 2 0. E. G. 360. 4-24 AJpEAt. XLV...RBL1KF. 1. On a bill filed to establish a will devising real estate, the court may grant relief, either by making an injunction perpetual, restraining the defendants from prosecuting any suit to disturb the complainants in the possession of their respective tracts, or by directing a release on the part of the defendant, of all their rights in said lands, to be made to the complainants, or b}' a decree establishing the will in all its parts. The last course should be adopted whenever the contents of the will can 'be ascertained. — Bailey vs. Stiles, 1 G- 220. 2. Bill filed for relief on the ground of fraud ; relief granted on the ground of mistake. — Heed's adm'rs vs. Cramer, 277. 3. A court of equity will frequently decree possession of real estate as auxihary relief, but will not entertain a bill whose sole object is to recover possession. — Mead vs Camfield, 3 Sto. 38. 4. Where a bill contains only a special prayer for relief, no other relief can be granted. And if the facts set fort in the bill would not authorize other relief, the prayer will not be amended. — Halsted vs. Meeker's ex'rs., 3 C. B. G. 136. 5. Under the general prayer for relief, any relief will be granted that the complainant proves himself entitled to upon the facts stated in his bill. — Gfraham vs. Berryman, 4 C. E. G. 29. 6. When the defendant in his answer to a bill for the specific per- formance of a contract, admits a substituted contract, the complainant is entitled to have a decree for the specific performance of the sub- stituted contract, if he chooses to perform it on his part, and he can have it on his suit on the original contract. — Ryno vs. Darby, 5 C. E. G. 231. 7. Under the prayer for general relief, only such relief can be given as is warranted by facts clearly and positively set forth in the hill^ Walker vs. Hill's ex'rs., 6 C. E. G. 191. 8. Relief will not be denied by reason of laches in filing the bill to establish the trust, if the delay is satisfactorily explained. — Bent vs. Smith, 7 C. E. G. 560. XLVI...APPEAL. 1. After a verdict has been rendered, the question of a new trial rests entirely in discretion, so much so, that an appeal will not lie from a decision of the court on such motion. — Black vs. Lamh, 1 B. 109. Appeal. 425 2. So an appeal will not lie from an order of the court directing or refusing an issue. — ib. 3. In case a defendant does not appear at the hearing hefore the Chancellor, the cause having been regularly noticed for argument, he cannot appeal from the decree thus rendered in his absence. — Townsend vs. Smith, 1 B. 350. 4. An order refusing to set aside a sale, upon an allegation based on the illegality of the sale, is appealahle ; it is- not a discretionary order. — Bank of Metropolis vs. Sprdgue, 6 C. E. G. 458. 5. A writ of error to remove a cause from this court to the Supreme Court of the United States, filed within ten days, Sundays excluded, from the day of filing in this court a decree of the court of appeals, is a supersedeas under the twenty -third and twenty-fifth sections, under the judiciary acts of the U. S., to stay execution. — Brumagim vs. Chew, 6 C. E. Gr. 180. 6. The "rendering the judgment," or "passing the decree" com- plained of from which the ten days begin, is the filing of the judg- ment of the court of appeals, in the court below. — ib. 7. A writ of error may be directed either to the highest appellate court of the state where the judgment complained of was rendered, if the record still remains there, or to the court below, if the judg- ment and record have been remitted. But it must be directed to the court where the record remains. — ib. 8. When the record has been remitted to the court below, and the writ of error directed to it, the entering the decree or judgment of the highest court, in the court below, is to be taken as the time of rendering the judgment, or passing the decree complained of. And such decree only becomes a final judgment in the sense of the twenty-third section of the judiciary act, when entered in a court from which execution can issue. — ib. 9. When a sale is unfair and illegal, and the property if fairly sold, would have brought enough to pay a lien creditor, he is aggrieved by an order refusing to set aside the sale, and is a proper party to appeal. — Bank of Metropolis vs. Sprague, 6 C. E. G. 458. 10. Courts of equity interfere upon a proper apphcation, to set aside sales made by their officers when, con ducted contrary to princi- ples of law, or when, through fraud or mistake, injustice has been done. They so interfere upon application in the suit in which the sale was made, and even when the purchaser was not a partj-- to the suit. By becoming a purchaser, he subjects himself to the jurisdic- tion of the court. — ib. 11. This court will give to a decision of the court of appeals, made in the same cause, its fair and just legal effect. — SnowhilVs heirs vs. SnowhilVs exr's., 1 G. 30. 28 APPEAL. 12. "When a decree of the Chancellor, allowing a general demurrer, is reversed in the court of appeals, and the demurrer overruled, the court of appeals should direct the record and proceedings in the cause to be remitted to the court of chancery. — ib. 13. On appeal from an order dissolving an injunction, and an order from the Chancellor staying the proceeding, to restrain which the injunction had issued, until the next sitting of the court of ap- peals, an order of this court, at its next sitting, extending the stay until the hearing of the appeal, is within the power of the court, but the granting or refusing rests in the sound discretion of the court. — Doughty vs. Somerville & Easton R. R. Co., 3 Hal. 631; see also Ryerson vs. Boorman, 3 H. 640. 14. Either party may set a cause down for hearing, but it is the duty of the appellant, in all cases, to prepare the state of the case. In case of neglect the remedy is by dismissing the appeal. — Cooper vs. Cooper, 1 Sto. 655. 15. It is the riffht of the appellant to prepare the state of the case, or, at his option, to abandon the further prosecution of the appeal. Nor can he be deprived of that right. — ib. 16. Query. Whether the respondent, in case he, as well as the appellant, is aggrieved by the decree of the court below, and insists upon a hearing as essential to his rights, may bring the cause to a hearing against the will ol the appellant ? — ib. 1 7. The appellant cannot be subjected, against his will, to additional costs, by the adverse party preparing the case for him. It is clearly his right to insist upon his right of preparing the case or of abandon- ing the appeal, at his pleasure. But where no state of the case has been prepared by the appellant, as required by the rule, the respond- ent may at once move to dismiss the appeal, and if the appellant refuse to go to hearing upon a case fairly prepared by his adversary, justice would require that the appeal should be dismissed. — ib. '18. While the court condemn the practice of marking a case by italics, whether a state of the case shall be rejected upon this ground, rests in the sound discretion of the court. — ib. 19. On appeal from Chancery, it is not necessary to print the pleading and evidence in full. The formal parts of the bill may always be advantagously omitted, and the pleadings in most cases materially abridged. — ib. 20. Unless in cases«entirely free from doubt, the court of appeals will not interefere with the order of the Chancellor, continuing an injunction until the final hearing. — Jersey City vs. Morris Canal, 1 B. 545, 21. An appeal will lie from a decree in the court of chancery, which settles permanently, the right of the custody of infants, Appeal. 427 although the proceedings in the case were commenced Toy habeas corpus. — State vs. Baird, 4 C. E. G. 481. 22. Whether a writ of error or an appeal will lie froift a decision in a proceeding strictly b}'- habeas corpus Query ? — -ib. 23. An appeal lies to an order of the Chancellor sustaining excep- tions to a bill for impertinance. — C. & A. R. R. Go. vs. Stewart, 6 0. E. G. 484. 24. But when the Chancellor has struck out statements from a bill which are very prolix, and appear, to be of small importaiice to the case, this court will not interfere with such order. — ih. 25. An appeal will lie by force of the act of 1869, from a decree of the prerogative court in a matter of probate, to the court of errors and appeals. — Harris vs. Vanderveer's exr's., 6 C. E. G. 424. 26. The general rule is, that an appeal will lie from all orders, either granting, refusing, sustaining or dissolving injunctions. — Morgan vs. Ross, V C. E. G. 583. 27. After a cause has been heard upon the merits, the judgment properly entered, and the papers remitted to the court below, the court of errors has no further jurisdiction with respect to the case. — King vs. Ruckman, 7 C. E. G. 551. 28. When a final decree involves the merits of the case, settled by the interlocutory decree, an appeal from the final decree brings the whole case before the court. — Crane vs. DeCamp, 7 C. E. G. 614. 29. The court of errors and appeals have no jurisdiction of an appeal from a decree of an ordinary rendered in the prerogative court, on appeal from a decree of the orphan's court. — Hillyer vs.- Schenck, 2 McC. 501. 30. It is a settled rule, that on an appeal from a decree of the orphan's court, no question can be raised in this court, not raised and decided in the court below. — Trimmer's exr's. vs. Adams, 3 C. E. G. 505. 31. When a final decree involves the merits of the case which had previously been settled by an interlocutory order, an appeal from the final decree, properly taken, brings the whole matter before the court. — Terhune vs. Colton, 1 B. 312. 32. No appeal lies from a statement or restatement of accounts by the Surrogate, but only from a decree of the court. — Cooley vs. Vansyckel, 1 McC. 496. 33. The thirty days, within which, by the statute, an appeal from the sentence or decree of the orphan's court, must be demanded, are to be computed, not from the time the decision is announced, but from the time the decree was reduced to writing, signed and filed, and entered upon the minutes of the court. — Hillyer vs. Schenck, 2 McC. 501. 428 PEEEOGATIVE AND OEPHANs' COTJET. 34. The demand and filing of the appeal in the court below, and not the petition of appeal in this court, is the demand of appeal intended pj the act, and which, alone, is required to be made within thirty days. — Hilly er vs. Schenck, 2 McO. 501. 35. The time of filing the petition of appeal is regulated by rule of court, and whenever the rule has not been complied with, the court may, in the exercise of its discretion, release the party from the effect of his laches. — tb. 36. A mere oral demand of appeal, without any instrument of appeal being prepared, or entry made on the minutes, or some order made by the court, is not a lawful demand of an appeal. The principle is of universal application, that the validity of an appeal is to be decided by the appellate tribunal. — ib. XLVII...PREUOGATITE AND ORPHANS' COURT. 1. Setting off dower by metes and bounds, in lands in which the- husband was only seized of an undivided moiety, is a radical defect. His interest in the lands, and also the fact, that the lands, in which dower was set off, were those in which the widow had a dower right, should appear. — Osborn vs Sogers, 4 0. E. G. 429. 2. When the proceedings in the Orphans' court were thus radi- cally defective, the widow was allowed her election to have the proceedings dismissed and new proceedings instituted in that court, or to amend her petition and proceed in this court. — ib. 3. In the settlement of estates by executors, neither the Orphans' court, nor the Prerogative court, can make an order of distribution. —Jn re EaUn, 5 0. E. G. 481. 4. The order of distribution is not made by any authority or power inherent in the court, and the statute authorizes such order in cases of intestacy. — ih. 5. It is a settled rule, that on an appeal from a decree of the Orphans' court, no question can be raised in the Prerogative court, not raised and decided in the court below. — Trimmer's exW. vs. Adams. 3 G. E. G. 505. 6. In cases of disputed claims to the right of guardianship, ihe depositions taken at the hearing should be reduced to writing by the Surrogate, and be sent up with the papers on the appeal. — Read vs. Drake, 1 G. 78. 7. Whether depositions are taken and sent up or not, the Ordinary may, in his discretion, allow further depositions to betaken on notice, before the Surrogate to be used on the hearing of the appeal. — ib. 429 8. The limitation of time within which an appeal is to be taken from the determination of the Orphans' court, to the Prerogative court, under the twenty-first section of the act, entitled "An act to ascertain the power and authority of the ordinary and his surrogates," &c. (Rev. Laws 776) refers not to the filing of the petition of appeal in the Prerogative court, but to the demanding and filing the appeal in the Orphans' court. — Clark vs. Haines, 2 G. 136. 9. The party appellant, upon making his appeal in the court below, should procure all the necesary transcripts from that court, and file them, together with his petition of appeal, in the Prerogative court, at the term next after the demand of the appeal in the court below. — ih. 10. The appellant in the Prerogative court is not required to deposit one hundred dollars to answer the costs of the appeal, accord- ing to the practice of the court of Appeals. — ih. 1 1. The Prerogative court will, in a summary manner, upon mere motion, inquire into the validity of an order previously made by the Ordinary for the prosecution of an administrator's bond. — Ex parte Webster, 2 G. 558. 12. The validity of the order cannot be inquired into by the court in which the action is brought upon the bond. — ii. 13. The usual and proper practice on applications to the Preroga- tive court, is to proceed by petition, duly verified, setting forth the facts upon which the application is founded ; but the court will not, for the mere want of a petition, set aside an order otherwise regular — ih. 14. It must appear that an order for the prosecution of an adminis- trator's bond was made at the request of a party aggrieved. — ih. 15. Motion to vacate an order of an Ordinary vacating an order to prosecute an administrator's bond, denied : the Supreme court having acted on the vacating order and dismissed the suit on the bond — In re Wehster, 1 Hal. 89. 16. By whom application may be made to the Ordinary for leave to prosecute an administration bond. — ih. 17. Courts of probate are not governed by the same strict rules as a court of construction in reference to the admission of parol evidence. There are a number of cases where mistakes made in preparing a will have been corrected. — Brokaw vs. Peterson et. al., 2 McC. 194. 18. The Prerogative court will not exercise its jurisdiction to review the decision of the Orphans' court in the allowance of com- missions, except in case of a manifest error in judgment. — Anderson vs. Berry, 2 McC. 232. 19. When the notice requiring creditors to present their claims, has been given in pursuance of an order of the Orphans' court, under section 3, of the act concerning the estates of persons who die 430 insolvent, (Nix. Dig. ,386,) the creditor cannot be admitted to a divi- dend of the estate unless his claim has been presented under oath, ■within the time limited by the order. — Qould vs. Tingley, 1 C. E. G. 501. 20. No action can be brought by the claimant, until the decree of distribution is made. — Sayre's adm's. vs. Sayre, 1 G. B. G. 505. 21. The order for distribution ma}'- be made at the instance of the administrator, or of any one of the distributees. If made at the time of the settlement, no further notice is necessary. — ih. 22. A separate decree cannot be made at the instance of each of the claimants. — ib. 23. No notice to, or appearance by the guardian, can be a waiver of the notice prescribed by the act. — Culver vs. Brown, 1 C. E. G. 533. 24. The acts of the Surrogate can only be reviewed by appeal to the Orphans' court or the Prerogative court. The}' cannot be impeached collaterally. The only question that can be made is whether he had jurisdiction. — Quidort's adrrCs. vs. Pergeaux, 3 C. E. G. 472. 25. The appointment, by the Orphans' court of commissioners to set oif dower, should appear by the records of the court, or by an order or decree signed by the judges or one of them. — Oshornvs. Rogers, 4 0. E. G. 429. 26. The act requires the commissioners to make their report at the next term after their appointment. This provision is not so far imperative as to make void the proceedings, if not strictly complied with, yet it is so explicitly directory that it requires an order of the court made upon notice, to authorize a report at a subsequent term. — ih. 27. If the day to show cause is less than two months from the date of the rule, even by one day, the order to sell is erroneous, and must be set aside on appeal. And as this rule is the proceeding by which jurisdiction is acquired, this defect appearing on the record, would avoid the proceeding collaterally. — Bray vs. Mill's ex'r., 6 U. E. G. 343. 28. A petition to the Orphan's court to set aside an account as illegally and improvidently allowed, and also to open the same for mistake and fraud therein, need not specify in what the fraud or mistake consists, or the items alleged to be affected thereby. — Trim- mer's ex'r. vs. Adams, 3 0. E. G. 505. 29. When an account is opened solely on the ground of fraud or mistake, proved to the satisfaction of the court, the settlement under the 27th section of the Orphans' court act, should be confined to correcting the items in which the fraud or mistake is proved, and MISCELLANEOUS. 431 such part or parts of the account as are affected by the change so made. The residue of the account not affected by such proof should be allowed to stand as settled. — ih. 30. But when an account is set aside as improvidently allowed, contrary to the express provisions of the statute, it should be set aside altogether, and the parties allowed to contest every item of it. — ib. 31. When the decree of the Orphans' court, setting aside the account, is afBrmed, exceptions may be filed in the Prerogative court, and the matter continued there until the final settlement of the account. — ib. 32. Ordinarily, when the parties are before the court, the final account is settled in chancery, and not sent back to the Orphans' coui-t for settlement. — Mallory's adni'r. vs. Craig, 2 McO. 73. 33. It is the duty of an executor, not only to exhibit his account for allowance, but to use dilligence in bringing it to a final settlement. — Egerton's exWs. vs. Egerton, 2 C. E. G. 420. XLTIII...MIS0ELLANEOUS. 1. In many cases the court will interfere and preserve property in statu quo, during the pendency of a suit in which the rights to it are to be decided, and that without expressing, and often without having the means of forming, an opinion as to such rights. — Huff- mati vs. Hummer, 2 G. E. G. 263. 2. Upon a bill for foreclosure and sale of mortgaged premises, all the subsequent encumbrancers are necessary parties, and to effectuate a complete decree, the existence, validity, order of priority, and amount due upon the several mortgages, must be settled and decided. — Van- derveer vs. Holcombe, 2 0. E. G. 87. 3. Uncertainty in the description of the premises in the declara- tion of ejectment, in a suit brought in the Supreme court, can only be remedied in that court. — 0. & A. R. R. Co. vs. Stewart, 3 C. E. G. 489. 4. In this state exceptions may be filed to a hill for impertinence or scandal.— C. & A. R. R. Co. vs. Stewart, 4 0. E. G. 343. 5. When a party excepts to an account which contains a number of items of charges, he must specify the charges of which he com- plains. He cannot, by a general exception, impose the burthen upon the court of examining every item in the account, to detect the error. — Holcomh vs. exr's. of Holcomb, 3 Sto. 281, i32 MISCELLANEOUS. 6. All such parts of depositions, as go to prove matters in no way pnt in issue by the pleadings, ordered to be stricken out. — Miller vs. Miller, Sax. 386. 7. In the absence of any established practice or rule in our own court, to the contrary, we follow the English practice, in all cases where such practice is not rendered inapplicable by some statutory provision, or does not violate the spirit of our statutory regulations. — West vs. Page, 1 Sto. 203. 8. Query, whether one single order, appointing a receiver under the act, can bo made for eight suits brought by different parties ? — Newkirk vs. Morris, 1 B. 62. 9. In an application for divorce on the ground of desertion, the cir- cumstances of the desertion must appear. — lest vs. Test, 4 C. E. G. 342 10. Lis pendens only takes effect from the service of the sub poena. The statute provides that the suit shall not be notice until the filing of the notice required by the statute, but gives no effect to the notice. It only restrains its effect. — Haughwout vs. Murphy, 6 C. E.G. 118. 11. A receiver will not be appointed to supersede permanently, the managers of a railway, and to take entire charge of the affairs of the road.—!?. L. & W. R. Go. vs. Erie B. Co., 6 0. E. G. 298. 12. Lis pendens filed, without an 3'" bill having been filed, as a con- structive notice is a nullity. — Walker vs. Hill's ex'rs., 7 C. E. G. 513. 13. Bill filed and subpoena served, are necessary before a lispendens becomes constructive notice to persons who shall acquire title from parties to the suit pendente lite, — Haughwont vs. Murphy, 1 C. E. G. 531. 14. The commencement of a suit in chancery is constructive notice only as against persons acquiring title, or an interest in the property in litigation after suit is commenced. A pei-son whose interest existed at the commencement of the suit, will not be bound by the proceedings unless he be made a party to the suit. — ib. 15. The first mortgagee having prosecuted his bond to judgment and execution at law, under which he purchased the mortgaged premises, at sheriff's sale, took possession and received the rents and profits. The second mortgagee is entitled to redeem upon paying the principal and interest of the first mortgage, together with the costs incurred in obtaining possession. — Hill vs. White, Sax. 435. 16. A solicitor has no right to accept a part of a debt in payment of the whole, without express authority of his client ; and his receipt for it as payment in full, when given without authority of his client, and that fact was known to the debtor, will be treated as a, nullity. — Watts vs. French, 4 C, E. G. 407, MISCELLANEOUS. 433 17. Equity will enforce covenants connected with land in the hands of alienees, in some cases in which there is no legal remedy against such alienees, hut such cases should not he unnecessarily multiplied, — Brewer vs. Marshall, 4 C. E. G. 537. 18.. A levy on suflScient property, nnier a fieri facias, prima facia, satisfies the judgment. — Carr vs Weld, i C. E. Gr. 319. 19. Equity will not interfere against a nuisance which is only contingent. — Boss vs. Butler, 4 0. E. G. 294. 20. Where the answer of one of several defendants objects to a bill for want of proper parties, and the controversy as to that defend- ant is settled before the final hearing, the objection will be disre- garded. — Booraem vs. Wells, 4 G. E. G. 87. 21. By the act of March 7th, 1850, to prevent fraudulent trusts and assignments, and the supplements to the chancery act, a creditor, upon the return of an execution, nulla bona, has a lien upon the choses in action of his debtor, and can maintain a suit to set aside a fraudulent assignment. — Oreen vs. Tantum, t 0. E. G. 105. 22. A suit brought in New York upon a bond, by a person to whom it was assigned as collateral security for a less amount, in which only the amount for which it was assigned as collateral security was recovered, and to which the obligee was no party, does not satify and extinguish the bond, as against the obligee. And in a suit brought by the absolute assignee (>f the bond and mortgage, subse- quent to such collateral assignmen-t, he will be entitled to a fore- closure of the mortgage for the residue due upon it, beyond the amount recovered. — Brumagim vs. Chew, 4 C. E, G. 130. 23. The effect of such recovery will be determined by the law of the state of New York, and the well established rule, that the proceedings in any suit will not affect any one but a part}- to it, will be assumed to be the law of New York, until it is shown that a different rule is established there. — ih. 24. The right to set off is a mere legal right — a matter of practice in the courts of law — and has no claim to the protection of this court. — Dungan vs. Miller, 4 C. E. G. 218. 25. When the duty of a trustee is a matter of doubt, it is his right to ask and receive the aid- and direction of a court of equity in the execution of his trust. In such cases, if reasonable grounds exist for coming into court to obtain the construction of the instru- ment creating the trust, the practice is to allow the costs and expen- ses, as it respects all the parties, and as between attorney and client, out of the trust funds. — AWy Gen. vs. Moore's exr's., 4 C. E. G. 503. 26. This court reserves to itself a large discretion upon the sub- ject of accounting, and often assumes or rejects the cognizance of such cases, according to the circumstances of the particular case. — Seymour vs. Long Dock Go., 5 C. B. G. 396. 434 MISCELLANEOUS. 27. In a suit upon a parol agreement, void by the statute of frauds, the complainant is bound by the agreement, as stated in the answers. — Petrick vs. Ashcroft, 5 C. E. G. 198. 28. A sheriff or master charged with the conduct of a judicial sale, has a considerable latitude of discretion in prescribing such terms of sale as will exclude puffers and fraudulent bidders, and secure the confidence of real purchasers in offering their bids. — Bank of Metropolis vs. Sprague, 5 C. E. G. 159. 29. This court will not enforce a judgment of the courts of another state obtained by fraud. — Davis vs. Headley, 7 C E. G. 115. . 30. If the title of the complainant is not disputed, and the injury is clear, it is not necessary that the fact of nuisance should be first established by a verdict at law. — Duncan vs. Hayes, 7 0. E G. 25. 31. Mistakes are corrected, even where they occur in the proceed- ings of courts, and exist in the records themselves. This is done, not by reviewing the judgments or proceedings of the court, but by restraining the parties from taking advantage of such mistakes, or by compelling them to execute proper papers for the purpose of such correction. — Loss vs. Obey, 7 0. E. G. 52. 32. The endorsement by the father on an execution against his son, discharging the sheriff "from all liability whatever of the execu- tion, the defendant being dead, and no further proceeding-s required on the same," does not discharge the debt. — Batton et. al. vs. Allen et. al, 1 Hal. 99. 33. Money will not be ordered to be paid into court, which is not ascertained to be due by an account or decree in the cause, or admitted to be due by the answer or other proceedings in the cause. A parol admission, proved by affidavit, is not sufficeent. — McTighe vs. Dean, 7 0. E. G. 81. 34. In a proceeding under a new statute, a part}^ who is honestly seeking his rights, should not be cut off by a mere technical rule. — Merchants' Bank of Phil., vs. Bank of New Brunswick, 2 G. 437. 35. The practice in proceedings to supercede a commission in cases of habitual drunkenness, should be substantially the same as in cases of lunacy. Proceeding by reference to a master adopted as the most convenient, safe, and expeditious coui-se. — In re Weis, 1 C. E. G. 318. 36. The complainant having failed to attach the required revenue stamp to the original writ, after the expiration of the time limited for the defendant to file his answer, attached the stamp and took a degree pro com/esso ; the defendant moved to set aside the decree. Motion denied with costs, but, under the circumstances of the case, without prejudice tOj the motion being renewed within fifteen days, jf the defendant could make affidavit of a good defence, and show COSTS. 435 what that defence is. Such affidavit should he entitled in the cause. — Disbrow vs. Weitling, 3 C. E G. 36. 37. A judgment entered by mistake may be amended, or, if pro- cured by fraud, may at any time be set aside. — King vs. Buckman, 7 C. E. G. 551. XLIX...COSTS. 1. Upon dissolving the injunction and dismissing the bill; the costs ordered to be paid out of the moneys deposited in court, and the remainder of the deposit ordered to be paid to the defendant on his judgment at law. — Sax. 230. 2. "Where a bill has been dismissed, or demurrer allowed, and another bill is filed for the same matter, this court will stay proceed- ings in the second suit, till the costs of the first are paid. — Updike vs. Bartles, 2 B. 231. 3. "Where a suit at law has been discontinued by a plaintiff volun- tarily, or through the negligence or default of the plaintiff, and a new suit is brought for the same cause of action, or where the second suit is brought to try the same question over again, a court of law wUl order the second suit to be stayed until the costs of the first suit are paid. A court of equity adopts and acts upon the same principle. — Sears vs. Jackson, 3 Sto. 45. 4. But not unless in the first suit the party was legally liable for the costs. — ib. 5. When the order for time is made without notice, though it be made to appear affirmatively that the order was signed and filed prior to the signing of the decree, tho coiiiplainant will be entitled to the costs of proceeding until he is served with a copy, or with notice of the order. — Emery vs. Downing, 2 B. 59. 6. In the case stated, it is not the practice to allow interest on the costs ; nor can anything be allowed for renting and taking care of the property, or for any thing except necessary repairs. — Hill vs. White, Sax. 435. 7. There having been an offer to redeem, and the money tendered before suit brought, but the conduct of the mortgagee in possession, in not receiving, not appearing to have been improper or vexatious, each party ordered to pay his own costs. — Hill vs. White et. al. Sax. 435. 8. The principal ground of defence i. e. the construction of the contract, not being unconsciencious, no costs given. — Hendrickson et. al. vs. James Ivins, Sax, 563. 436 COSTS. 9. In cases of doubt, requiring full investigation, costs before the Orphans' court and also the costs of appeal, with reasonable counsel fees on the hearing, will be directed to be paid out of the testator's estate. — Whitenack vs. Stryker, \ G. 8. 10. A solicitor employed by one of several executors or adminis- trators, and filing a bill in the name of all, will not be compelled to pay costs, although the name of one of the administrators be inserted in the bill of complaint without his consent. — Dare^s AdmW. vs. Allen's ex'r., 1 G. 288. ] 1. The costs of an issue at law directed by a court of equity do not follow the verdict as of course, but are in .the discretion of the court. — Decker vs. Gashey, 2 G. 446. 12. It is usual to allow the costs of both parties incurred in con- testing a will to be paid out of the personal estate, except where it appears that the conduct of one or more of the parties is frivolous oppressive or fraudulent. — Day vs. Day, 2 G. 549. 13. Counsel fees should also be allowed to the executor, who offers the will for probate, and in proper causes counsel fees may be allowed to both parties out of the estate. — ib. 14. When there is fair ground for re-examination, costs ought not to be awarded against the appellants, though the decree be affirmed. — Gohlevs. Grant, 2 G. 629. 15. Costs disallowed to a successful party on the ground that his own unlawful act led to the controversy, and that great and unneces- sary expense was occasioned by the examination of numerous witnesses. — Shields vs. Arndt, 3 G. 234. 16. A creditor is not allowed the costs of proving his claim before a master. But a creditor complaining of the proceedings before the master in settlement of the receivers accounts may be allowed his costs, to be paid out of the fund or by the receiver, at the discretion of the court. — Richards vs. Morris Canal & Bk. Co. 3 G. 428. 17. On bill by a wife, by her next friend, against her husband for alimony and maintainance, a motion on the part of the defendant that the complainant file security for costs was denied. — Ballentine vs. Ballentine, 1 Hal. 519. 18. Upon motion to dismiss the bill with costs, the court dis- missed the bill without costs. — i:ynith vs. Brown, 3 Hal. 526. 19. Where parties settle out of court neither is entitled to costs from his adversary. — Bruce vs. Gale, 2 B. 211. 20. Where the necessity for filing the bill was occasioned by the misconduct of the defendants as executors, in omitting to inventory and in refusing to account for moneys which were due the estate, no costs will be allowed them out of the estate. — Post vs. Stevens, 2 B. 293. Costs. 4S7 21. In partition suits the costs of the proceeding, as well as the partition itself, will be charged upon the several shares according to their respective values. — Coles vs. Coles, 2 B. 367. 22. Counsel fees do not properly constitute a part of the costs and expenses to be charged against the owners of the several shares. — ih. 23. The court will allow to the commissioners such sum beyond the usual fees tixed by the statute as may be proper. — ij. 24. The report of the commissioners designating the boundaries of the several lots, with the map, constitute the usual return ; but the cost of making a field book will be allowed. — ib. 25. A charge for drawing the return is proper. The cost of a copy of the return for record in the county clerk's office allowed. — ib. 26. A share may be subdivided on partition. The costs thereof will be charged on that share. — ib. 27. ^Vhen complainant's proceedings are regular, the decree is opened at the instance of the defendant on payment of costs. — Oram vs. Dennison, 2 B. 438. 28. A defendant who is'^ermitted to answer after decree regu- larly taken, will be required to pay costs. — Emery vs. Downing, 2 B. 59. 29. Where costs not allowed either party. — Moore vs. Vail, 2 B. 298. 30. In a foreclosure suit, the costs, incurred]by the complainant in resisting a motion on the part of the mortgagor to set aside the execution, will be ordered paid out of the surplus money in preference to the claim of a purchaser of the mortgaged premises, who takes title from the mortgagor after the decree, and before the motion to set aside execution. — McPherson vs. Housel, 2 B. 299 31. As against the mortgagor, the complainant is entitled to costs ; he is personally liable for the debt. — Banbury vs. Robinson, 1 McO. 324. 32. Ordinarily the purchaser of the equity of redemption would stand in the shoes of the mortgagor, and would be liable for so much of the costs as were occasioned by his ill advised defence ; but under the peculiar circumstances of this case, he was held not personally liable for costs. — ib. 33. The prior mortgagee, having by his answer, attacked the validity of complainant's mortgage, when the protection of his rights required no such defence, his conduct was held vexatious, and costs were denied him out of the estate ; and also held, that in strict equity, he was personally liable for all the extra costs occasioned by his answer. — ib. 34. Where three defendants employed the same solicitor, and filed separate answers, all presenting the same defence, the only 438 coe'rs. effect of which was to swell the costs, and diminish complainant's security, the practice was declared unwarranted and vexatious. — ih. 35. When both parties to a cause are partially successful, it is in accordance with the usual practice in equity to allow costs. — Fair- child vs. Hunt, 1 McO. 367. 36. Extra allowance to the Orphans' court, has been repeatedly held to be illegal, and under the circumstances of this case, chere is no ground for the allowance of counsel fees out of the estate to either party. — Pursel vs. Pursel, 1 McC. 514. 37. An executor propounding a will for probate, acting in good faith, is entitled to costs out of the estate, whether probate be granted or refused. When probate is granted, if the party contest- ing the validity of the will merely cross-examines the subscribing witnesses to the will, and other witnesses, if any, on the part of the probate, he is not charged with costs. If he sets up insanity, or calls witnesses, other than the subscribing witnesses to the will, he' will be required, at the discretion of the court, to pay costs to the opposite party. — Perrine vs. Apphgate, 1 McC. 531. 38. If probate be denied, the party contesting the validity of the will, is entitled to costs out of the estate. For construction of the act of 1855 (Nix. Dig. 562, §60), and the act of 1861 (Nix. Dig. 592, §86), see the case of Pcrrive vs. Applegate, 1 McC. 531. 39. Costs to be allowed in matters of probate. — Stackhouse vs. Horton, 2 McC. 202. 40. The general rule is that the mortgagee is entitled to costs, both on bills to redeem and to foreclose. — Burlew vs. EElman, 1 C. E. G. 23. 41. No costs are given, if the complainant, or his representative, elect not to proceed. — Benson vs. Wolverton, 1 C. B. G. 110. 42. A suit for foreclosure upon each of two mortgages, covering the same premises, both of which were in the hands of the complain- antj when the first bill was filed, is unnecessary and oppressive, and costs will be allowed but in one suit. — Bemarest vs. Berry, 1 0. E. G. 481. 43. When a guardian has failed to account, as required by law, and sets up a prior account as a bar to accounting in this court, and a decree for an account is made, the complainant will be allowed costs up to the decree. — Burnhamvs. Balling, 1 C. E. G. 310. 44. Costs of establishing the will, &c., ordered to be paid out of the estate, the burden falling upon the residuary legatee, by whose act the costs were occasioned. — Jordan vs. Clark, 1 C. E. G. 243 ; and see Wyckoffvs. Wyckoff, 1 C. E. G. 401. C0&T8. 43d 45. In suits for foreclosure and sale of mortgaged premises, each mortgagee is entitled to be paid his principal, interest and costs accord- ing to his priority. — Lithauer vs. Rode, 2 C. E. G-. 40. 46. Decree of the Orphans court, charging the executors, individu- ally, with the costs of suit, where they have permitted great and unwarrantable delay in the final settlement of their account, approved. — Egerton's ex'rs. vs. Egerton, 2 0. E. G. 420. 47. A party prosecuting an inquisition of lunacy, in good faith, will not be condemned in the costs of resisting the commission. — Jn re Curtis White, 2 0. E. G. 275. 48. The complainant having failed to prosecute his suit with proper diligence, charged with the costs of the motion to dissolve. — Randall vs. Morrill, 2 C. E. G. 343. 49. Equity has not adopted the rule at law, that when a plaintiff sues in a representative capacity, and fails, no costs shall be awarded against him. But where the suit is brought in bad faith by the com- plainant, he will be ordered to pay the cost out of his own estate ; and when brought upon an instrument obtained by the decedent by a breach of faith, costs will be ordered to be paid out of the estate of the testator. — Shepherd's ex'rs. vs. McClain, 3 0. E. G. 128. 50. This court has no discretionary power in a matter of costs upon a demurrer. — Hicks vs. Camphell, 4 C. E. G. 183. 51. The general rule is, that on a bill by a mortgagor to redeem, the mortgagor must pay the costs. — Phillips vs. .Hulsizer. 5 0. E. G. 308. 52. When the conduct of the mortgagee has been unfair, or oppressive, he may be charged with the costs. — Phillips vs. Hulsizer, 5 C. E. G. 308. 53. Action of respondent being for advantage of all concerned, his costs and a reasonable counsel fee, allowed out of estate. — Munn's ex'rs. vs. Munn, 5 C. E. G. 472. 54. The cost of printing the case in the court of Appeals, cannot be included by the successful party in his taxed bill of costs. — De- Camp vs. Crane'Q C. E. G. 644. 55. Costs and expenses of defendants in the proceedings at law for partition, those proceedings being authorized by statute, and arrested by this court in order to more complete equity, will be allowed'out of proceeds of sale. — Hall vs. Piddnck, 6 E. G. 311. 56. Full costs will not be allowed a mortgagee upon his answer, spun out by long recital from the bill touching other encumbrances, forj the mere purpose of admissions. — Young vs. Young, 2 C. E. G. 161. 4i6 COSTd. 57. It is an ancient and well established rule, that if the complain- ant is resident abroad, the court, on the application of the defendant, will order him to give security for costs, and in the mean time will direct all proceedings to be stayed. — Newman vs. Landrine, 1 McC. 291. 58. Nor is it necessary that the complainant reside out of the state at the time of filing his bill, to entitle the defendant to the order. • It will be granted if the complainant goes abroad to reside after the commencement of the suit. — ib. 59. But the application for security must be made before the defendant takes any step in the' cause after notice of the non- residence or removal. — ih. 60. If, after knowledge of the nonresidence, defendant takes any step in the cause before applying for the order, he thereby waives security for costs. — ib. 61. "When the defendant's affidavit on an application for security fails to show clearly that the defendant did not know of the com- plainant's removal before taking the last step in the cause, the appli- cation will be denied. — ib. 62. "When a sole defendant lives out of the state, and no foreign publication is ordered or notice given to the defendant, costs on opening the decree ordered to abide the event of the suit. — Oram vs. Dennison, 2 B. 438. 63 Bach party decreed to pay his own costs, each being in default. — Harrison vs Righter, 3 Sto. 389. 64. "Where a suit abates by the death of a party, no costs will be awarded, except where the costs are payable out of a particular fund, or are connected with a duty toward the party claiming costs. — Sears vs. Jackson, 3 Sto. 45. 65. Persons suing in autre droit, are not liable for costs. — Gifford vs. Tliorn, 1 Sto. '702. 66. It seems that a creditor is not allowed the costs of proving his claim before the master. But a creditor complaining of the proceedings before the master, in the settlement of receivers' accounts, may be allowed his costs, to be paid out of the fund, or by the receivers, at the discretion of the court. — Richards vs. Morris Canal and Banking Co., 2 G. 428. 6'7. Defendants refusing to correct the mistake in the deeds after it was brought to their notice and knowingly defending the suit against good faith, must pay the costs. — Loss vs. Obey, 7 G. E. G. 52. INDEX TO Precedents in Chancery. AFFIDAVIT. Of service of notice for possession 9'7 To petition for writof assistance.lOO To notice of motion for possession.lOO Of service of order for possession.lOl Of non-residence 115 Of inquiry, for residence 118 Of publication 118 Of notice to infant defendants... 122 Of infant's non-residence 122 To ansvirer of infant, byguardian.156 To answer of second mortgagee. 158 To petition for injunction 206 To same, after decree 209 On application for guardian 219 Annexed to petition for guardian.222 To petition for surplus money ... 235 Jo petition for commission of lunacy 249 To petition to set aside inquisition 259 To bill for divorce 263 To petition for divorce 265 To petition for alimony 268 To petition in forma pawperis. ..214: To answer in partition 280 To complicated bill 286 Of notice to apply for receivers. .319 ALIMONY. Petition for alimony, pendente Ute, 26T Affidavit to do 268 Order for alimony, do 268 AMENDMENT. Order for leave to amend 115 Order for leave to amend in special case 116 ANSWER. Plea and answer 154 Answer of infants by guardian.. 155 Answer of second mortgagee. . .156 Order for commision to ta£e. . . .160 Commission to take. ,.,....,.. .160 29 Exceptions to answer 161 Order to answer 174 Order for time to answer 174 Answer to bill for divorce 265 Answer in partition 275 Answer of infants 287 APPEAL. Notice of 201 Petition of 202 Appeal from report of receivers.324: APPEARANCE. Of infant defendants 125 ATTACHMENT. Order to show cause in 181 Order for 182 "Writ of 183 BILLS. To foreclose mortgage 83 Of costs 96, 325 To foreclose mortgage, (special case). 105 To foreclose, short form 136 Prayer of bill for injunction 204 For divorce 262 For partition 275 In a complicated case for partition 281 Against a corporation 312 CAPIAS. Capias ad satisfaciendum 200 CIRCUIT RECORD. On feigned issue 246 CITATION. Citation to defendant 265 COMMISSIONER. Fees, &c., in lunacy 253 Oath in partition 302 Return in do 303 Costs in do, ,.,.,,, 305 452 INDEX. COMMISSION. Order for, to take answer 160 Commission to take, do 160 Order for, to examine witnesses. 169 Interrogatories, to be annexed to. ITl Petition for, in lunacy 249 Order for, in lunacy 251 Commission in lunacy 251 Decree for, in partition 298 Commission in partition 300 CORPORATIONS. Bill against 312 Order for injunction 318 Notice of application for receivers 318 Affidavit of service of do 319 Order appointing receivers 319 Order limiting creditors 320 Order of reference 321 Report of master on order 322 Exceptions to report 323 Appeal from report 324 COSTS. BiU of, on foreclosure 96 Of commissioners in partition. . .305 Schedule of. .^ 325 DEATH. Suggestion of death of complain- ant 178 Suggestion of death of defendant 178 DECREE. For sale of mortgaged premises. 91 Pro confesso 119 For sale of part of mortgaged premises where infant de- fendants 132 For sale of the whole in such a case 134 For sale of part of mortgaged premises 147 For sale of whole of mortgaged premises 150 Pro confesso when money not all due 141 Decree to sell the whole, and for deficiency 143 Decree to sell pait 147 Decree for the sale of residue. .150 Pro confesso and reference as to priorities 186 Settling priorities 186 Of dismissal 190 Same, on argument 190 For specific performance 191 Same, where reference is waived.193 Establishing a will, ,,,.,,,.,., 194 Annulling a deed, 195 On scire facias 242 In lunacy 256 Of divorce in adultery 271 Of divorce for desertion 272 Interlocutory decree 288 For sale 290 For partition and the appoint- ment of commissioners 298 In partition 306 DEED. Decree annulling deed 195 DEMURRER. General demurrer 152 Special demurrer 153 Order overruling 176 Same, on argument 177 DEPOSITS. Order to pay deposite — surplus money 238 DEPOSITION. Notice of taking 167 Of witnesses 168 DISMISSAL. Decree of 190 Decree of, on argument 190 DIVORCE. BiU for i62 Affidavit to do 263 Petition for divorce 264 Affidavit to do 265 Citation to answer in 265 Answer to bill of. 265 Petition for alimony 267 Affidavit to do 268 Order for alimony 268 Order for proofs 269 Order extending time for proofs. . 270 Decree of, for adultery 271 Decree of, for desertion ■. .272 Petition for counsel 273 Affidavit to do 274 Order assigning counsel 274 DOWER AND CURTESY. Consent to seU dower 308 Election between gross sum and interest 309 Order of reference to find proper ■V sum 309 "Toaster's report on sum in gross. 310 4i Master's report on sum to be in- vested an INDEX. 463 ELECTION. ^i -. Of suits, order direating. . . ..'. . .180 EXAMINATION. Of witnesses 168 Notice of do 167 Order for commission for 169 Commission for do 170 Interrogatories used 171 Of co-defendant, order for 175 EXCEPTIONS. To defendant's answer 161 Rule referring exceptions 163 Report of master on do 163 Order confirming report 164 To master's report 165 Order correcting, &c. report 166 Exception to receiver's report.. .323 EXECUTION. For sale of mortgaged premises . 93 Alias testaium 196 Against goods and lands 199 Against the body 200 On scire facias 243 FEIGNED ISSUE. Order for 245 Circuit record in 246 FIERI FACIAS. Forms of 93, 196; 199, 243 GUARDIAN. Notice of application for, by com- plainant 121 Notice to guardian, &e 121 Proof of notice, &c. . . ., 122 Order appointing, on complain- ant's notice i 123 Appearance of ;' 125 Summons to 127 Answer of infants by 155 Affidavit of 156 Petition of minor over fourteen for 218 Consent of, in such case 219 Affidavit in do 219 Order of Appointment in do. . . .220 Petition of Minor under fourteen for :..221 Consent of, in such case 221 Affidavits to petition for 222 Order of appointment in such case 222 HEARING. Rule for 131 INFANT DEFENDANT. Notice to 121 Notice to guardian of 121 Affidavit of serving 122 Affidavit of non-residence of. . .122 Order appointing guardian of . . . 1 23 Appearance of 125 Rule of reference in case of. ... 1 26 Summons to guardian of 127 Answer of, by guardian 155 Affidavit to do 156 Petition of over fourteen years. .218 Consent of guardian 'of .,. . .219 Affidavit on application of- ■ • • . .219 Order appointing guardian for. .220 Petition of, under fourteen years.221 Consent of guardian in such oase.221 Affidavit annexed to such petition222 Order appointing guardian in such case ..222 Petition to sell real estate of in- fants 223 Order of reference 224 Master's report 225 Order appointing guardian 226 Bond 227 Order to refer merits 228 Master's report 228 Order to sell 230 Report of terms of sale 231 Order confirming sale 232 Report of investment., 233 INJUNCTION. Prayer for 204 Order for 205 Petition for 205 Affidavit to do 206 Petition for injunction after de- cree 207 Affidavit in such case 209 Special order for 209 Petition to injunction niaster 210 Report of do 211 Rule for injunction 211 "Writ of injunction to stay waste.212 Do, to stay proceedings at law. .213 Order for injunction in partition case 286 Order for, on bill against corpor- ation 318 INQUISITION. Of lunacy 254 Rule on inquisition not finding lunacy 257 Petition to set aside do 258 Affidavit to such petition 259 Order to refer on such petition. .259 Report on the same 260 Pinal order on same 261 INTERROGATORIES. To be annexed to commission. . .171 To complainant after answer. .. .173 454 INDEX. LUN-ACY. Petition for commission of 249 Affidavits to do 249 Order for commission of 251 Commission of 251 Precept to sheriff for jury 253 Inquisition of 254 Decree in 256 Rule where lunacy not found. . . 257 Petition to set aside inquisition of 258 Affidavit to do 259 Order of reference in do 259 Report on such reference 260 Final order on report 261 MORTGAGE. "■-Bill to foreclose 83 ~ Short form of bill in a special case. 136 Subpoena to answer 87 Report of master 89 Pinal decree 91 Mfa for sale of mortgaged prem- ises 93 Bill of costs on 96 Petition for writ of assistance. . . 98 Notice of motion for order of possession 100 Order for possession 101 Poof of service of order. ■. lOJ., Notice of motion for writ 102 Order for writ of assistance 103 Writ of assistance 104 ^ BiU to foreclose, in special case. 105 Ticket 114 Affidavit of nan-residence 115 Order of publication 115 Notice to absent defendants 117 Proof of inquiry for residence ... XI 8 Proof of publication 118 Decree pro confesso 119 Notice to infant defendant 121 Notice to guardian 121 Proof of notice to infant defend- ant 122 Affidavit of infant's non-residenoe.122 Order appointing guardian 123 Referring petition to sell real estate 224 Appointing guardian to sell 226 Referring merits of anplication . . 228 To sell ; 230 Confirming sale 232 Appearance of infants 125 Rule of reference to a master. . . 126 Summons to guardian 127 Report of master in special case. 128 Rule for hearing 131 Decree to sell part, premises where infant defendants 132 Decree to sell the whole in such » case 134 Decree to sell part of mortgaged premises 147 Decree to sell the whole 150 Decree and reference, money npt all due 141 Report of master in such case . . 142 Decree to sell the whole, do 143 Decree to sell part, do 147 Report of master for sale of res- idue 149 Decree for sale of residue 150 Answer of second mortgagee. . .156 Decree and reference to settle priorities 185 Decree settling priorities 186 NE EXEAT. Order for me exeat 184 Writ of ne exeat 184 NOTICE. To absent defendants 117 Demand of possession and proof of service 97 Of motion for possession 100 Of motion for writ of assistance.102 To infant defendants 121 To guardian of infants 121 Of takmg depositions 167 Of appeal 201 Of application for receiver 318 ORDERS. For possession and proof of ser- vice 101 For writ of assistance 103 For publication agamst absent defendant 115 For fi fa for deficiency 145 Appointing guardian on complain- ant's motion 123 To show cause why defendant should not proceed 125 To proceed 126 For commission to take answer. 160 Confirming report on exceptions. 164 Correctmg and confirming report. 166 For commission to examine wit- nesnes 169 To answer 174 For time to answer 1 74 For hberty to examine co-defend- ant 175 For leave to amend 175 INDEX. 465 ;; To amend in special case 116 Overruling demurrer 176 ^ Same, on argument lit To speed cause Ill '■ For security for costs Ill Suggesting death of complainant. 11 8 Suggesting death of defendant. .118 Substituting master 119 ]; Substituting solicitor 180 That complainant elect to proceed at law or in equity 180 To pay deposite money 181 To show cause m attachment. . . .181 For attachment 182 For ne exeat 1 84 For injunction 205 For special injunction 209 Of reference to appoint receiver. 2 14 Appointing receiver 211 Appointing guardian 220 Do for infant under fourteen years222 Of reference on petition to sell real estate of infants 224 Appointing guardian where real estate is sold 226 Of reference on petition for sur- plus 236 Final order for surplus 238 For scire facias 240 For feigned issue 245 For commission of lunacy 251 Of reference on petition to set aside inquisition 259 Setting aside inquisitipn of lunacy261 For alimony pendente lite 268 For proofs, &c 269 Extending time to take testimony210 Assigning counsel in pauper case .214 For injunction in partition case . .286 Appointing guardian in partition case 281 Confirming sale 294 For distribution 295 Appointing commissioners in par- tition 298' Of reference to find proper sum '■ — — for dower 309 For injunction against a bank. . .318 Appointing receivers, &c 319 Limiting creditors 320 Of reference in case against bank.321 PARTITION. BUI for partition 215 Answer in 218 Affidavit to answer 280 BiU in a complicated case 281 Affidavit to bill 286 Order for injunction 286 Order appointing guardian 281 Answer of infants 281 Interlocutory degree 288 Master's report 289 Decree for sale 290 Report of sale 292 Order confirming sale 294 Order for distribution 295 Master's report 296 Decree for partition and appoint- ing commissioners 298 Commission in partition 300 Commissioners' oaths 302 Commissioners' return 303 Costs of commissioners 305 Decree final in 306 PETITION. For writ of assistance 98 Of appeal 202 For injunction 205 For injunction after decree 201 For injunction before master 210 Of minor over fourteen years for guardian 218 Of minor under fourteen years fordo 221 To sell real estate of infants. . . .223 For surplus money 234 For commission of lunacy 249 To set aside inquisition 258 For divorce 264 For alimony pendente lite 261 For counsel in pauper case 213 PLEA. Plea 154 Plea and answer 154 PROCESS. Subpoena to answer 81 Ticket 114 Writ of assistance 104 Summons to guardian 127 Subpoena ad testificcmdmn 168 Citation 265 M. fa. for sale of mortgaged premises 93 Attachment 183 .We exeat 184 Alias testatum, ft. fa 196 Fi. fa. de ion. etter 199 Capias ad saiisfadendmn 200 Sequestration 200 Injunction to stay waste 212 Injunction to stay suit at law — 213 /Scire facias 240 Fi. fa. on scire facias 243 556 INDEX. REOEITEBS. Order of reference to appoint. ...214 Master's report thereon 215 Form of recognizance ...216 Order appointing receiver. . . . . .217 Notice of motion for, against a bank 318 Proof of service 319 Order appointing, in such case. .319 REPLICATION. Replication, general form of. . . .159 REPORTS. Of master in common mortgage case 89 Of master in special mortgage case 128 Of master where money not all due 142 Of master for sale of residue. . .149 Of master on exceptions 163 On reference to sell real estate of infants 225 On merits of application to sell.. 228 On terms of sale 231 On investment 233 Partition cannot be made 289 Of Sale 292 Partition can be made 291 Report of injunction master. . . .211 Report appointing a receiver. . . .215 Report on petition for surplus. ..237 Report setting aside inquisition. .260 Report on sum in gross for dower.310 Report on sum to be invested. ..311 Report on receiver's accounts. . .322 RULES. Of reference in infant case 126 For hearing 131 Referring exceptions 163 To confirm report 173 For injunction 211 On inquisition not finding lunaoy.257 SEQUESTRATION. Writ of 200 SCIRE FACIAS. Order for 240 Writ of 240 Decree on 242 Fieri facias on 243 SURPLUS MONEY. Petition for 234 Affidavit to petition 235 Order of reference on do 236 Report of master 237 Final order 238 "WRIT OP ASSISTANCE. Petition for writ 98 Notice of motion for order of possession 100 Order for possession 101 Proof of service of order 101 Notice of motion for writ 102 Order for writ 103 Writ 104 ADVISORY MASTERS. The Masters appointed under the act approved April 4th, 1878, and entitled "A supplement to an act entitled 'An act respecting the Court of Chancery,' " will be known and desig- nated as Advisoey Masters. The following Masters of this court are appointed Ad- visory Masters : Joseph D. Bedle, Aitzi Dodd, Barker GuMMERE, John Hopper, George C. Ludlow, Joel Parker, Henry C. Pitney, Jehiel G. Shipman, John C. Ten Eyck, Peter L. Voorhees. When a cause or matter is referred to an Advisory Master he shall proceed to hear it with all reasonable despatch, and shall advise the Chancellor what order or decree to make therein, and all the proceedings, in the cause or matter shall, from the time of the reference up to final decree or order, be before the Master. The Master shall hear the cause or matter in the same manner as provided by the rules of this court in the case of references to the Vice-Chancellor, and all the provisions of such rules with respect to fixing the time for the hearing of a cause, the taking of testimony as well de bene esse as otherwise, the excluding of incompetent evidence, and the hearing and conduct of the cause before the Vice-Chancellor, shall govern the like matters in cases before the Advisory Masters ; and the rule in regard to the re-hearing of causes heard by the Vice-Chancellor shall apply to causes heard by the Advisory Masters. The Masters are not to write opinions, but will merely advise the order or decree by advisory certificate at the foot thereof, and whenever it shall appear to be necessary or proper to do so, they will report to the Chancellor the grounds of the order or decree by a mere concise statement of the facts found, and the conclusion thefft