matBliaU iEqmtg Qlolkrttoit (Stft of IE. 31. iiaraljaU. Cffi. 1. 1894 CORNELL UNIVERSITY LIBRARY 3 1924 084 224 314 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://archive.org/details/cu31924084224314 maryland Chancery Practice, f W I T H A N APPENDIX, CX3NTAINING FORMS OF PROCEEDINGS, THE RULES OF THE CIRCUIT COURT OF BALTIMORE CITY, A LIST OF THE MARYLAND JUDICIARY AND TERMS OF THE COURTS. BY BENJAMIN O. BARROLL, OF THE BALTIMOEB BAH. " Out of the old fieldes, cometh al this new corned BALTIMORE: CUSHINGS & BAILEY. 1869. EsTSBBD, according to the Act of Congress, in the ^ear 1869, by BENJAMIN C. BAREOLL, In the Clerk's Office of the District Court of Maryland. WM. K. BOYLE'S STEAM PKESS. T THE HONORABLE THOMAS PARKII^ SOOTT, CHIEF JUDGE OF THE SUPREME BENCH, -THIS WOEK I 8, WITH HIS PERMISSION, AFFECTIONATELY AND EESPBCTFULLY INSCRIBED, BY HIS FRIEND, THE AUTHOR. PREFACE The title chosen, "Maryland Chancery Practice," does not indicate accurately the scope of the present work. It is something more than a book on "Prac- tice." In the public notice of its preparation, it was stated, that it would include matters of Jurisdiction, Practice and Pleading, in Courts of Equity, peculiar to the local jurisprudence of Maryland. That refer- ences would be made to the Code and its Supplements, the decisions of the Court of Appea,ls, and the Courts of Baltimore City. However imperfectly this promise may be found on perusal to be fulfilled, such is really the design of the work, now presented to the liberal consideration of the profession. It is believed that all matters contained in the Code, 4 relating to jurisdiction,^ pleading or practice in Courts of Equity, will be found embodied in these pages, with vi MARYLAND CHANCERY PRACTICE. references to the Article and Section, under appropriate, heads. And, in giving the law contained therein, in most instances, the previous Act of Assembly, from which the provision in the Code was obtained, has also been indicated, in order to a fuller an. I better understanding of the subject. Where the Statute has been the subject of judicial interpretation by the Court of Appeals, or the High Court of Chancery, such decisions are likewise given. Prom the outset, however, the writer was limited to one volume of reasonable size; this feature of his work had to be kept constantly in view, and in justice to him, must not be overlooked by the critical reader. The elaborate treatise of Mr. Daniel, on Chancery Practice, will continue to be the work of general reference and reliance, for the Bench and the Bar, while the present volume may be occasionally con- sulted, when the practitioner desires a reference to some matter purely local in its character. As incidental to the main design, the writer thought it might be useful to the profession, to note for refer- ence, the book or- books where a subject under con- PREFACE. vii sideration could be found more fully treated, his own experience having taught him, that while a principle may be familiar to the Court or the Solicitor, the book or the page, for its confirmation, is not so readily recollected, when suddenly required at the trial table. A preface is always more or less embarrassing to the writer, and I would have omitted it altogether on this occasion, but for the desire to acknowledge obligations to certain sources of which I have availed, in preparing the present work. I am under much obli- gation, in the case of Mr. Alexander's work upon the Chancery Practice of Maryland, and the excel- lent work of Lewis Mayer, Esq., containing a Digest of the Maryland Decisions construing the Statutes; and to both these gentlemen I desire to return thankful acknowledgements. It is a matter of much regret that I have not been able to embody in the work, the forms and modes of framing and filing bills, answers, and other proceedings and pleadings in Equity; and also forms and modes of taking and obtaining evidence to be used in Equity cases, &g., which the Court of Ap- viii MAEYLAND CHANCERY PRACTICE. peals are required to "devise and promulgate," by Section 18, Article IV. of tlie present Constitution. But the publication of this volume could not be 'delayed, and it is uncertain when these forms will be prepared and ordered by the Court of Appeals. It is also proper to state that the references to the printed volumes of the Maryland Reports do not go beyond volume 24, that being the last published at the present date. In submitting this humble attempt to facilitate the researches, and lighten the labors of my brothers of the Bar, I may be permitted to express the hope that some of those whose larger experience and acknow- ledged ability so fully qualify them for the task, may be induced to serve the general interests in the field,, into which With much diffidence, I have ventured in this work, which is now submitted to their candid consideration. BENJ. C. BARROLL. Baltimoee, Fehrvmy 1, 1869. POSTSCRIPT. Aftee the body of the Work had been printed, the following matters occurred, and this is the only place now available for a reference to them. The case of Crone vs. Crone, cited on pp. 372, 381, and the case of Israel vs. Israel, cited on p. 497, have been reversed by the Court of Appeals. The opinions of the Court will be found pub- lished in the Baltimore Law Transcript, under date of February 6, 1869. In paper of same date will be found the opinion of Judge Pink- NEY, delivered in the case of Addison vs. Addison, cited on p. 390, relating to the law of "Marriage." On page 117, the practice is set forth in cases where "a plea is overruled " at the hearing. The case of Seebold vs. Lochner has just been decided by the Court of Appeals, (Feb. 5, 1869,) and the Court hold, when a plea is overruled, that it is the right of defend- ant to withdraw it, and answer the bill ; and a final decree is not to be entered against his consent His right to take defence by answer, is a right of which the Court cannot debar him. The Court of Appeals reverse the action of the lower Court, (Cir. Court Bait. City,) on this point, and remand the cause. See Bait. Law Transcripf.Feh. 13, 1869. viii* POSTSCRIPT. Attention has just been called to the Form of the Conveyance, executing a decree under the Code, Art. XVI. sees. 39 and 82, (vide pages of this boob, 239, 278,) for the sale or lease of the property of an infant or lunatic. i A practitioner of much experience (W. H. C.) says: that the deed is to be made by the infant or lunatic, and not in the name of his trustee or committee. After a recital of the decree, the name of the infant or lunatic is to be inserted as grantor or lessor, and the conveyance is to be signed A. B (the minor or lunatic,) per C. E. trustee or committee — the acknowledgement is then to be made in like manner. In leases, the rent is to be reserved direptly to such infant or lunatic. This practice is not that which is usually followed in Baltimore City — to the writer it is a novelty— but as it comes to him well endorsed, he thinks it profitable to be mentioned. TABLE OF OOI^TENTS. Chaptbe I. Of the Circuit Courts — their jurisdiction, organization and general powers, as Courts of Equity 1 Chapter II. The Solicitors of the Court 9 Chapter III. Clerks of Courts 16 Chapter IV. Section 1. — The commencement of the suit — issuing, serving and returning process 24 Section 2.^0f attachment — and orders pro confesso — sequestration.. 35 Chapter V. Parties 86 Chapter VI. Of scandal and impertinence 44 Chapter VII. Of the Bill 46 Section 1. — General remarks 46 2. — Interpleader 60 8. — To perpetuate testimony, and de bene esse 52 4. — Review 55 5. — Eevivor 62 6. — Discovery 64 7.— Cross Bill 72 8. — Specific performance 74 9.— Creditors' Bill 85 10.— Quia Timet 101 Chapter VIII. Modes of Defence .-. 103 Chapter IX. Disclaimer 107 Chapter X. Demurrer 109 X MARYLAND CHANCEEY PRACTICE. Chapteb XI. Of Pleas 116 Chapter XII. The Answer 129 Chapter XIII. The Eeplication 143. Intbr-Chaptbr 145' Chapter XIV. Interlocutory Proceedings 148 Section 1. — Greneral Eemarks 148 2. — Security for Costs 151 3. — ConsoUdation 152 4. — Removal of the Cause... 154 5. — Production of Books and Papers ......154 6. — Payment of Money into Court 157 7. — The Rule Further Proceedings 158 8. — Election toProceed at Law or Equity 160 9.—Ne Exeai 163 10. — Issues Sent to a Court of Law 167 Chapter XV. Amendment 171 Chapter XVI. Section 1. — Setting Down the Cause for Hearing 176 2. — Decision of the Cause 179 3. — Re-Hearing of the Cause 180 Chapter XVII. Of Abatement and Revivor 181 Chapter XVIII. Of the Decree i 195 Chapter XIX. Execution 209 Chapter XX. Supersedeas ^ 218 Chapter XXI. Costs 221 Chapter XXII. Evidence 225 TABLE OF CONTENTS. xi Chapteb XXIII. Infants 237 Chapter XXIV. Non-Eesideots 255 Chaptek XXV. Of Idiots, Lunatics and Persons non compos mentis 266 Chapteb XXVI. Injunction 298 Chapteb XXVII. Receivers 315 Chapteb XXVIII. Of the Auditor, and the Mode of Stating Accounts 324 Chapter XXIX. Section 1. — Appeals from Courts of Equity 339 2— Writs of Error 353 3. — Writ of Diminution 362 4. — Remanding the Cause 356 5. — Re-Hearing in Court of Appeals 364 Chapter XXX. Sectionl. — Marriage 365 2.— Divorce 370 3.— Alimony 382 i — Maintenau'-e 389 Chapter XXXI. Sales 391 Intee-Chapteb 405 Chapteb XXXTI. Changing the Names of Persons 408 Chapter XXXIII. Circuit Court of Baltimore City 411 Chapter XXXIV. Mortgage 413 Chapter XXXV. Section 1. — Vendor's Lien 438 ^ 2.— Mechanics' Lien 443 3. — Machines ..445 4. — Roats and Vessels 446 5. — Lien in General 451 xii MAEYLAND CHANCEEY PEAOTIOE. Ohaptbe XXXVI. Corporations 455 Chapter XXXVII. Of Dower 465 Chaptbb XXXVIII. PartitioQ 483 Chaptbb XXXIX, Conversion of Realty into Personalty, and vieeversa 499 Chapter XL. Usury — Interest 506 Chaptbb XLI. Husband and Wife 511 Chaptbb XLII. Statute of Frauds j 518 Chaptbb XLIII. Limitation of Actions, Laches and Lapse of Time 622 Chapter XLIV. Miscellaneous 530 Appendix. Rules of the Circuit Court of Baltimore City 535 Forms of Proceedings 568 Index of Forms 6 Judiciary of Maryland 6 General Index... 6 ERRATA. On page 110, in last line, for as read and. " " 118, in line 18, erase the word do. " " 124, erase 3d and 4th lines. " " 154, for sec. 28, read sec. 9. " " 167, for the read to in 5t.h line from bottom. " " 486, for two in 22d line read too. " " 6S2,{0T SpeUey's ease read SheUey's. " " 249, "jurisdiction extended," &c., refer to 1868,0. 278,iw«<. p. 680. TABLE OP THE ACTS OF ASSEMBLY EEFERRED TO. Pass. 1716, ch. 20 : 10 1773, ch. 7 81 1777, ch. 22, sec. 14 382,385 1785, ch. 72 96, 234, 391, 392 1786, ch. 45 492 1795, ch. 88 56 1798, ch. 84 155, 156 ch. 101, sec. 13..... 471 ch. 101, sec. 6; di. 11, sec. 6 492 1799, ch. 79, sec. 10 213,302 1801, ch. 74 154 1807, ch. 140 155 1813, ch. 100 477 1816, ch. 154, sec. 13 499 1818, ch. 133 ;. 248 ch. 193 357,473 1820, ch. 161 184, 201, 202, 203, 456 ch. 191 494 ch. 191, sec. 27 490 1824, ch. 206 164 1825, ch. 103 211 ch. 208 437 1826, ch. 99 50H Paoe. ...345 ...211 xiv MAEYLAND CHANCERY PRACTICE. 1830, ch. 185 1831, ch. 41 g- oh. 290, see. 6 ^^^ ch. 311... 191 ch. 311, sec. 9 ^^^ 1832, ch. 152 608 ch. 197 : 346 ch. 302, sec. 6 : 357 ch. 302, sec. 5 347 ch. 307 215 1833, ch. 181 428 1835, ch. 380 .• 93, 396 1836, ch. 128 1''8 1838, ch. 205 450 1841, ch. 22 184 oh. 216 392,500 ch. 262 370, 377, 378 1842, ch. 229 : 184 1843, ch. 40 41, 191 oh. 73 346 1844, ch. 44 .....191 ch. 219 151 1845, ch. 176, sec. 4 446 1846, ch. 152 211 1853, ch. 245—335 5ll, 512 1854, ch. 154, sec. 9 499 1860, ch. 326 463 1861, ch. 7 2t6, 217 ch. 32 141 ch. 70 208 ch. 76 428 oh. 167 190 ch. 179 11 1862, ch. 156...., 395, 530 1864, ch. 89 245 ch. 109 229, 381 ch. 149 .' 388 TABLE OF ACTS OF ASSEMBLY. xv Page. 1864, ch. 156 339_ 351 ch. 283 209,398 ch. 109. 229 ch. 360 90.395 ch. 371 464 1865, ch. 5 , 214 ch 114 11 ch. 141 352 ch. 190 448 1866, ch. 26 3, 21. 22 ch. 157, sec 9 ^ 436 1867, ch. 126 : 11 ch. 277 444 ch. 388 114 1868, ch. 116 , 229, 280 oh. 180 154 ch. 249 .' 241 ch. 273 ,; 249, 530 ch. 311 408,409 ch. 348 532 ch. 325 533 1 ch. 380 250 ch. 404 10 ch. 435 182, 185, 263 ch. 471 215, 457, 461 TABLE OF EEFEEBNCBS TO THE CONSTITUTION AND THE CODE. Deolabation of Bights — Hioa. Article V 6,7 XXXIX 231 CONSTITDTION OF 1867 — Article III. sec 33 370,408 III. 38 165 III. 43 511 III. 53 234 III. 57 506 IV. 7 8 IV. 8 8,164 IV. 9 2,3 IV. 18 340 IV. 20 2 IV. 22..... ..534 IV. 28 f 8,179 IV. 28 2 IV. 29 1,411 IV. 32 412 IV. 33 411 IV. part 7, p. 82 3 IV. 2,sec. 18 4 IV. 1, 8 ''ZZ 5 IV. 2, 15 352 TABLE OF ARTICLES OF CODE. xvii Cod e — . Page. Article T. sec. 9 231 II. 9 190 II. 10 190 II. il : 190 II. 12 : 191 IV. 8 47Y IV. 9 4b3 V. 3; 217 V. 4 353 V. 5 f 169 V. 7 353,361 V. 9 353 V. 10 362,353 V. 15 353 V. 18 354 V. 19 360 V. 20 339 V. 21 342, 343, 345, 389 V. 22 * 345 V. 23 345,389 V. 24 345 V. 26 346 V. 26 346 V. 27 347 V. 28 ; 367 V. 29 348 V. 30 348 V, 31 348,361 V. 32 ; 348 V. 33 349 V. 34.. 349 V. 35 850 V. 36 350 V. 37 350 V. 38 350,361 X. 91 82 xviii MARYLAND CHANCERY PRACTICE. Code — Continued. . Vgige. Aitiolo X. 19 215 XI 1 9 XI. 2 > 9 XI. 3 9 XI. 10 11 XI. 11 10 XI. 15 11 XI. 16 10,11 XII 463 Xyi. sec. 1 40, 182 XVI. 2 40, 182, 250 XVI. 3 40, 182 XVI. 4 40,182 XVI. 6 .....40, 182 XVL 6 40,41,182 XVI. 7 41, 184 XVI. 8 41,63,184 XVI. 9 184 XVI. 10 r 184,260 XVI. 11 184,260 XVI. 12 64,184,260 XVI. 13 ; 41 XVI. 14 382 XVI. 15 382,383,386 XVI. 16 118,130,171,223 XVI. 17 41, 172 XVI. 18 324 XVI. .19 324 XVI. 20 66,68, 155,156 XVI. 21 69,155,166" XVI. 22, repealed. XVI. 23, repealed. XVI. 24 370 XVI. 25 ^ 365,373 XVI. 26 * 376,380 XVI. 27 371,372 TABLE OF AKTICLES OF CODE. xix • Cope — Continued. Page. Article XVI. 28 371 XVI. 29 371 X^I. 30 250,465 XVI. 31 250,466 XVI. 32 -. 466, 475 XVI. 33 466,467 XVI. 34 467 XVI. 35 96, 168. XVI. 36 237 XVI. 37*. 238,242 XVI. 38 «. 238 XVI. 39 239 XVI. 40 239 XVI. 41 239 XVI. 42 239 XVI. 43 240 ^ XVI. 44 240 XVT. 45 240,247 XVI. 46 241,243,247 XVT, 47 241.499 XVI. 48 241,499 ' XVI. 49 241 XVI. 50 27, 241, 258 XVI 51 307 XVI. 52 307 XVI. 53 307 XVI. 54 304 XVI. 55 213,306 t XVI. 56 :.. 1 XVI. 57, confers' no new power. XVI. 58, re-enacted 532 XVI. 59 26 XVI. 60 26 XVI 01 26 XVI. 62 75 XVI. 63, not in force. XX MAKYLAND CHANCERY PRACTICE. Code — Oonlinued. P^se- Article XVI. 64 ^'''^ XVI. 66, sale by Executor. XVI. 66, see section 138. XVI. 67 208,213 XVI. 69 : ; 531 XVI. 70 243,247 XVI. 71 243,288,433 XVI. . 72 56, 80, 237, 244, 288 XVI. 73 244,288 XVI. 74, relates to sheriff or collector, qmitteij. XVI. 75 " " * " XVI. 76 " XVI. 77 " XVI. 78 1 XVI. :9 266 XVI. 80 277 XVI. 81 277,278 XVI. 82 278 XVI. 83 278,279 XVI. 84 279 XVI. 85 280,288 XVI. 86 279 XVI. 87 275 XVI. 88 245, 256 XVI. 89 141,245 XVI. 90 ; 268,287 XVI. «91 56,,81, 269, 265,;296 XVI. 92 27, 260, 456 XVI. 93 ;....261, 457 XVI. 94 52,261 XVI. 95 52,261 XVI. 96.....'.. 262 XVI. 97 256 XVI. 98 is2 XVI 99 249.276 283 *For Art. X. sec. 91, p. 82, read Art. XVI. TABLE OF ARTICLES OF CODE. xxi Code — Gontinned. Page. Article XVI. 100 177, 256 XVI. 101 177,266 XVI. 102 118,223 XVI. 103 136, 136,227,313 XVI. 104 6,27 XVI. 105 151,263 XVI. 106 234,263 XVI. 107 234 XVI. 109." 223,325 XVI. lift 8,179 XVI. Ill ; 431 XVI. 112 , 256 XVI. 113 56,296 XVI. 114 131,222 XVI. 115 30,69, 201,456 XVI. 116 30,69,202 XVI. . 117 31,71,203,257,265 XVI. 118 31, 35,213, 383, 407 XVI. 119 32,70,204 XVI. 120 33. 205 XVI. 121 34,206 XVL 122 34, 206 XVI. 128 34,232 XVI. 124 34, 202, 206 XVI. 125 391,420 XVI. 126 396 XVI. 127 395, 530 XVI. 128 396 XVI. 129 393 XVI. 130 394,438 XVI. 131 392 XVI. 132 93,391 ' XVI. 133 93,391 XVI. 134 396 XVI. 135 396 D xxii MAKYLAND CHANCEEY PEACTICE. ^ CoDF — Continued. Page. Article XVI. sec. 136 396,397 XVI. 137 158,398,399 XVI. 138 400 XVI. 139 400 XVI. 140 63 XVI. 141 231 XVI. 142 231 XVI. 143 231 XVI. 144 ...281 XVI. 145 231 XVI. 146 - 232 XVI. 147 232 XVI. 148 232 XVI. 149.... 30, 178, 201, 207, 232, 257 XVII. 148 251 XVIII. 1 16 XVIII. 2 ,. 16 XVm. 3 17 XVm. 4 17 XVIII, 5 17 XVIII. 14 18 XVIII. 19 18 XVIII. 20., 19 XVIII. 21 19 XVIII. 22 19 XVIII. 23 19,218 XVIII. 24 218 XVIII. 26 , 20 XVni. 27 20 XVIII. 28 21,231 XVIII. 29 21,243,250 XVIII. 30,31,32 21,263 XVIII. 33 224 XXI. 184 93 XXIV. 16 418,434,436 TABLE OF ARTICLES OF CODE. xxiii Code — GonHrtued. ■ Vuge. Article XXIV. sec. 28 i 434,436 XXIV, 13 436,437 XXVI. 7 , 459 XXVn. 8 223 XXVII. 15 510 XXIX. 1 5 XXIX. 2 5 XXIX. 4 5 XXIX. 13 3,21,23 XXIX. 16 214 XXIX. 17...: 214 XXIX. 29 362 XXIX. 30 362 XXIX. 31 362 XXIX. 37 354 XXIX. 38 .«. 354 XXIX. 42 221 XXIX. 55 411 XXIX. 57 412 XXIX. 58 412 XXX. 1 369 XXX. 11 369, 468 XXX. 127 369 XXX. 133 368 XXX. p. 235 .*. 370 XXXVII. sec. 1, 2, 3, 4 229 XXXVII. 5 229, 381 XXXVII. 21 54. XXXVII. 22 251 XXXVII. 28 \ 54 XXXVII. p. 277 2 XXXVIII. sec. 9 11 XLV. 1 511,518 XLV. 2 512,515 XLV. 3 ...512,517 xxiv MAEYLAND CHANCERY PKAGTICE. Code — Continued. Page. Article XLV. sec. 4 512,516 XLV. 5 513 LXV. 6 613 XLV. 7 513,516 XLV. 8 , 513,516* XLV. 9 513,516 XLV. 10 : 513,516 XLV. 11 468,514 XLV. 12 514 XLVn. 2 522 XLVIL 3 8,522 XLVII. 4 528 XLVIL 5 523 XLVIL 6 523 XLVIL 7. 524 XLVIL % ....524 XLVIL 9 524 XLVIL 10 524 XLVIL 11 524 > XLVn. 12 524 XLVIL 30 498 XLVIL 31 : 489,492 XLVIL 32 493 XLVIL 34, 35, 36, 38 487 XLVIL 44, 45, 47; 48, 49 487 XLVIL 50 487 XLVIL 51 487,497 XLVII. 52 ...487 XLVIL 62 467 XLVIL 63 468 XLVIL 65, 69, 70 488 XLVIL p. 896 517 XLVIIL p. 398 297 • XLVIIL sec. 11 297 • LL 45 214,219' TABLE OF ARTICLES OF CODE. xxy Code — Continued. Page. Article LI. sec. 46 214, 2}9 LI. 47 214,219 LL 48 214, 219 LL 49 219 LI. 57 220 LI. 58 220 LX. 1,2, 8, 4 366 LX. 5 367 LX. 7 367 LX. 8 : 367 LXI. 24 , 443 LXL 25 444 LXI. 43 .....444 LXL 44 447 LXI. 45 447 LXI. 46 448 LXI. 47 448 LXIV. 1 421 LXrV. 2,3,4,5,'' 6 "426,422 LXIV. 7, 8, 9, 10 , 428 LXIV. 11, 12, 13, U* «392, 424 LXIV. 15,16,17 309,425 LXIV. 18, 19, 20, 21 425, 426 LXXV. 13 128 LXXV. 22 : 114 LXXV. 41 247 LXXV. 65 210 LXXV. 66 210 LXXV. 68 210 LXXV. 69 154 LXXV. 87 25 LXXV. 88 26 LXXV. 92 89 LXXV. 95 89 LXXV. 99 26,456 xxvi MAEYLAND CHANCERY PRACTICE. Code — Gontinued. Page. Article LXXV. sec. 100,101,102 25,28,455 LXXV. 108 456 LXXV. in...' 211 LXXV. 115 456 LXXV. p. 71, 84 154 LXXXI. 2 436 LXXXL 148 452,454 LXXXL 47., 454 LXXXm. 7 326 LXXXm. 8 187 LXXXlil, p. 586 400 LXXXVfn. sec 19, 20, 21 , 28 LXXXVm 3,209 XOL 4 397 XOin. 32 ......517 XCm. 105 40 XCin. 116 94,101 XCm. 126 489 XCIII. 171 248, 251 XGin. 195 246,265 XCm. 203 265 XCin. 284. 471 XCin. 286.. 472 XCin. 287 472 XCIIL 288 472 XCm. 289.. 472,479 XCin. 294,296,297 473 XCin. . 295 471, 473 XCin. 308 514 XCin. 328 168 XCV. 1 506 XCV. 2 , 506 XCV. 3 506 XCV. 4,5 507 TABLE OF PUBLIC LOCAL LAWS. XXVll Public Local Laws — Page. Article L see. 99, &c 464 L 782 426,427 L 788, 784, 785, 786, 787, 788 428 I- 789,790 430 L 792 431 MARYLAND Chancery Practice. CHAPTER I. OF THE CIECUIT COTTRTS — THEIR JURISDICTION, ORGANIZA- TION AND GENERAL POWERS, AS COURTS OF EQUITY. The Chancery Jurisdiction in Maryland is exercised by the Circuit Courts of the respective Circuits. In the City of Baltimore it is vested exclusively in the "Circuit Court of Baltimore City." Vide Constitution, Art. IV. sec. 29. In the language of the Code, "The Judges of the seve- ral Judicial Circuits, the Judge of the Circuit Court of Baltiihore City, and the Judge of the Superior Court of Baltimore City, shall each in his respective Circuit have and exercise, all the power, authority and jurisdiction, which the Court of Chancery had at the adoption of the present Constitution," (1851.) Vide Code, page 82, sec. 56. By the 78th section, page 86, it is enacted that "the Courts of Equity in this State shall not hear, try, deter- 1 2 MAEYLAND CHANCERY PRACTICE. mine or give relief in any cause, matter or thing wherein the original debt or damaiges does not amount to Twenty Dollars'' — This has been construed to mean exclusive of costs. The Equity Jurisdiction of the Superior Court of Bal- timore City has. been taken away by the Constitution of 1867, Art. JV. sec. 28. The jurisdiction conferred upon the Circuit Courts under the present Constitution is thus expressed: "The said Circuit Courts shall have and exer- cise in their respective Counties all the power, authority and jurisdiction, original and appellate, which the present Circuit Courts of this State now have and exercise, or which may hereafter be prescribed by law." Const. Art. IV. sec. 20. This provision therefore leaves their juris- diction without any change whatever. The Clerks of the respective Circuit Courts perform all the duties of Registers of the Courts — are the keepers of the records and proceedings — make out and issue its process, under the seal of the Court. They are also authorized to approve appeal and other bonds — to pass orders nisi — orders of publication against non-residents, (fee. See the Chapter of this work — "Clerks of Qowrt,'' and perform all the duties appertaining to their office. Each Court has also" an Auditor to state and settle such accounts as may be required to be stated, for the action of the Court. See Chapter — "Avditor.'" There are Bailiffs who attend upon the sittings of the Court, act as its messengers, preserve order, and do the biddings of the Court. The Court also appoints Commissioners to take Testi- mony to be used in the trial of causes. Code, Art. XXXVII. page 277. Const. Art. IV. sec. 9. MAEYLAND CHANCERY PRACTICE. 3 Tlie Sheriffs of the several Counties, and of the City of Baltimore, are the executive officers of the Court, each ranging within his own County for the performance of his duty. 3 Bland, 433. Const. Art. IV. Part 7. Code, Alt. LXXXVIII. Title, "Sherifs." The officers of the Court of Equity may be said to be the Judges, the Clerk, the Auditor, the Bailiffs, the Sheriff, the Commissioners, and the Solicitors. By Art. IV. sec. 9, of the Constitution: "The Judge or Judges of any Court may appoint such officers for their respective Courts as may be found necessary; and such officers of the Courts in the City of Baltimore shall be appointed by the Judges of the Supreme Bench of Balti- more City. It shall be the duty of the General Assembly to prescribe by law a fixed compensation for all such officers; and said Judge or Judges shall, from time to time, investigate the expenses, costs and charges of their respective Courts, with a view to a change or reduction thereof, and report the result of such investigation to the General Assembly for its action." The Act of 1866, ch. 26, [re-enacts sec. 13 of Code, Art. XXIX. p. 194,] requires every Judge of a Court of Law or Equity, to inspect the records and papers of the offices attached to their respective Courts, relating to real estate, and examine the condition thereof, and see whether the Clerk of such Court has performed the duties required of him by law, relating to the recording of judgments, decrees, executions and proceedings, and whether he has entered and transcribed the docket entries as required by law, (fee. &c. For matters relating to the qualifications for office, salary, removal, and such like, the reader is referred to the Constitution. 4 MARYLAND CHANCERY PRACTICE. The Court of Appeals is required "to make and pub- lish rules and regulations for the prosecution of appeals to said Appellate Court, whereby they shall prescribe the periods within which appeals may be taken, what part or parts of the proceedings in the Court below shall consti- tute the record on appeal, and the manner in which such appeals shall be brought to hearing or determination, and shall regulate, generally, the practice of said Courts of Appeals,, so as to prevent delays, and promote brevity in all records and proceedings brought into said Court, and to abolish and avoid all unnecessary costs and expenses in the prosecution of appeals therein ; and the said Judges shall make such reductions in the fees and expenses of the said Court, as they may deem advisable. It shall also be the duty of said Judges of the Court of Appeals, as soon after their election as practicable, to devise, and promulgate by rules, or orders, forms and modes of fram- ing and filing bills, answers, and other proceedings and pleadings in Equity ; and also forms and modes of taking and obtaining evidence, to be used in Equity cases ; and to revise and regulate, generally, the practice in the Courts of Equity of this State, so as to prevent delays, and to promote brevity and conciseness in all pleadings and proceedings therein, and to abolish all unnecessary costs and expenses attending the same. And all rules and regulations hereby directed to be made, shall, when made, have the force of law, until rescinded, changed, or modified by the said Judges, or the General Assembly." Const. Art. IV. Part 2, sec. 18. The system of "Special Judges" as formerly existing, has been abolished, and when the sitting Judge shall be disqualified to sit in the cause, the Constitution requires MARYLAND CHANCERY PRACTICE. 5 the General Assembly to provide what shall be done. Vide Art. IV. Part 1, sec. 8. The Judges are required to prescribe by rule of Court the manner in which suits may be dismissed by the parties or their Attorneys during the recess. Code, Art. XXIX. sec. 2, p. 192. They are also authorized to make rules and orders for the well-governing epd regulating their respective Courts and the officers and suitors thereof and under such fines and forfeitures as they shall think fit — not exceeding for any one ofience twenty dollars — Which fines shall go to the State. Code, Art. XXIX. sec. 1, p. 192. They are also empowered to punish for cases of "con- tempt." "The power of the several Courts of this State to issue attachments, and inflict summary punishments for contempts of Court, shall not be construed to extend to any cases, except the misbehaviour of any person or per- sons in the presence of the said Courts, or so near thereto as to obstruct the administration of justice ; or the misbe- haviour of any of the officers of the said Courts in their official transactions ; or the disobedience or resistance by any officer of the said Courts, party, juror; witness, or any other person or persons to any lawful writ, process, ord6r, rule, decree or command of the said Courts." Code, Art. XXIX. sec. 4, p. 192. "In order to enforce obedience to the process, rules and orders of the Courts of Equity, in all cases where any party or person shall be in contempt, for disobedience, non-performance or non-observance of any process, rule or Qrder of the Court, or for any other matter or thing what- soever whereby or wherein a contempt, according to the rules, law, practice or course of the said Courts may be 6 MAEYLAND CHANCERY PEACTICE. incurred, sucH party or person shall, for every such con- tempt, and before he shall be released or discharged from the same, pay to the clerk of the Court, (to be paid by him at the end of every six months to the Treasurer for the use of the State,) a sum not exceeding twenty dollars, as a fine, for the purgation of every such contempt, and the said party or person being in Court upon any process of contempt or otherwise, upon the order of the Court, shall stand committed and remain in close custody until the said process, rule or order shall be fully performed, obeyed and fulfilled, and until the said fine or fines for such contempt imposed by the said Court, and the costs, shall be fully paid." Code, Art. XVI. sec. 104, p. 92. The Courts of Chancery of this State are governed by the principles of the English Courts of Chancery — so far as the same are applicable. Vide Thompson vs. McKim, 6 H. & J. 302. But the Court of Appeals have also said that the Chancery or Equity pleadings of this State are not held to a rigid compliance with the rules of English Practice or the technicalities which control proceedings at law. 18 Md. 433. 19 Md. 375. 9 Md. 229. The Declaration of Rights sets forth that the people of this State are entitled to the benefit of the English Statutes, as they existed July 4, 1776, and which by experience have been found applicable to their local and other circumstances ; and have been introduced, used and practiced, by the Courts of Law and Equity, and also of all Acts of Assembly in force on the first day of June, 1867, except such as have expired or which may be inconsistent with the Constitution. Art. 5, Declaration of Rights, 1867. ■MARYLAND CHANCERY PRACTICE. 7 The English Chancellors prior to the Seventeenth Century were almost always appointed from among the dignitaries of the then Established Catholic Church of England, and those ecclesiastical Chancellors gave to the Chancery Court as a Court of Equity its general outline and substantially fashioned its modes of proceedings. 2 Bland, 187. Those principles and powers of the Court of Chancery in England at the time of the Revolution, as exhibited in the reported decisions of her learned Chancellors, are the same exercised by the Courts of Equity in this State, except wherein they have been altered by legislation or have been found not applicable to our institutions. 9 G. & J. 468. 3 G. & J. 504. 7 Md. 146. Dec. of Eights, Art. 5— Const, of 1867. The Court of Appeals has decided that while English decisions, made subsequent to the period of our separation from the British Empire, are entitled to great respect, yet they are not to be received as absolute authority in this State. 16 Md. 549. It is always to be borne in mind that where the juris- diction of a Court of Chancery is original arfd established, it is not ousted by a statutory provision giving to Courts of Law power over the same subject. 8 Gill, 395. And where the subject matter of controversy is already in possession of a Court of competent jurisdiction, public policy, and judicial comity, require that its action should not be interfered with by any other Court of concurrent jurisdiction. Withers vs. Denmead, 22 Md. 146. 4 G. & J. 493. But this principle, which holds as a general rule, is not without limitation and exception. Vide 3 Wallace, U. S. Rep. 334. 8 MARYLAND CHANCERY PRACTICE. The Code enacts, Art. XVI. sec. 10, p. 94 : That in all cases in equity, the Court shall file opinions in respect of any decree or decretal order whenever the same shall have passed on argument, oral or written, on the part of any of the parties in the cause. The Constitution requires the Court to render its deci- sions in all cases argued before it, or submitted for its judgment within two months after the same shall have been so argued or submitted. Art. IV. sec. 23. It also provides that "No Judge shall sit in any case wherein lie may be interested, or whei'e either of the parties maiy be connected with him, by affinity or consan- guinity, within such degree as now, or may hereafter be prescribed by law, or where he shall have been of counsel in the case." Const. Art. IV. sec. 7. In such case, section 8 provides for the removal of the cause to some other Court, and of a diflFerent Circuit, if the party applying for the removal shall so elect — when the Judges of said Court shall be disqualified to sit in any such\ suit. As there are three Judges in each Circuit, in case of disability in any one Judge to sit, there seems to be no good reason why the other Judges cannot try the cause. CHAPTER II. THE SOLICITOES OF THB COURT. The Eleventh Article of the Code, p. 52, sets forth, that no Attorney or other person shall practice law in any of the Courts of this State without being admitted thereto as herein directed. And by Section 2, applica- tion for admission is to be made in open Court. The 3d Section limits application to Practice Law, to free white male citizens above the age of 21 years, after two years previous study — of probity and good general character. The provision contained in sec. 31, Art. IV. of the Con- stitution of 1851, p. 57, which declared that "every per- son of good moral character, being a voter, shall be admitted to practice law in all the Courts of law in this State, in his own case;" and a provision of equivalent import in that of 1864, is not to be found in the new Constitution of 1867, but it cannot be doubted that any man has the right to try his own case, without any Constitutional pro- vision. It is at his option whether to employ an Attor- ney or not. Mr. Alexander intimates that where a party a,ppears to sue or defend in person, there should be the certificate of a Magistrate that the person who signs is really the party in question — p. 15. But the Act of Assembly referred to, allowing parties to sue and defend "in propria persona," does not require any such certifi- 10 MARYLAND CHANCERY PRACTICE. cate. 1716 ch. 20. In Baltimore City such certificate is required by Rule 4, of the Circuit Court. A. Solicitor, being an officer of the Court, is under con- trol, and can be suspended or have his name stricken from the roll, or be subjected to a fine not exceeding fifty dollars, for misbehaviour or conduct unbecoming his posi- tion. See Code, Art. XI. sec. 11, p. 54. But this action of the Court cannot be exercised arbitrarily and without sufficient cause. A case of striking the name of a member of the Bar from the rolls of the Court has recently occurred in Wash- ington, D. C, and the matter is now before the Supreme Court of the United States, on application for manda- mus, to compel a re-instatement. The Code declares that an admission to Practice in the Court of Appeals shall entitle the party to practice in any Court in this State. The reader is referred to the Article in the. Code on the subject of Attorneys, Art. XI. page 52. Gen. Sup. 1868, ch. 404, which repeals and re-enacts sec. 16. Mr. Evans, in his Practice, says at page 33: "When an Attorney is to be proceeded against with a view to suspension, the course is to lay a rule that he show cause on a certain day why he should not be struck off or sus- pended. The Court are informed of the facts by inspec- tion of the record, and so far as they are not of record by affidavits, and after hearing an argument, either discharge the rule or suspend the Attorney, as they think fit." Where the Attorney is proceeded against for conduct deemed improper, committed in the presence of the Court, it would seem reasonable that the Court would order his dismissal or suspension, reciting in the order the cause of so doing. This might be done with or without a prelimi- MAKYLAND CHANUEKY PRACTICE. H nary order to show cause — as the cause would be matter of contempt, the Court would reasonably allow the offend- ibg party an opportunity of purging such contempt. * This is a matter of so rare occurrence in Maryland, that there is little practice on the subject — the Judges of our State rarely have collisions with the members of the Bar-^and if such should unfortunately occur, it is presumed that both parties would act in the spirit of moderation and for- bearance in the adjustment of the difficulty. See on this subject of Suspension and Dismissal, Evans' Practice, p. 33. The title ''Solicitor," as an officer of the Courts of Equity, is mentioned in the Code, Art. XI. sees. 15, 16, 17, p. 55, and no Judge of any Court in this State, or Register of Wills or his deputy, or Sheriff or his deputy, is allowed to act as such. See Gen. Sup. to Code, p. 23. 1867, ch. 126, repeals 1865, ch. 114. Clerks of Court forbidden to practice law by 1868, ch. 404. 1862, ch. 179. It is presumed that no one at this day would be allowed to act as a regular Solicitor in a Court of Equity, who is prohibited from acting as Attor- ney in a Common Law Court. There is a rule of Court in Baltimore City prohib- iting officers of the Court being received as security on any Bond; this includes in terms, at least, "Solicitors" of the Court. A Solicitor is allowed an appearance fee of ten dollars — Art. XXXVIII, sec. 9, p. 45, Gen. Sup. to Code — and is required to take the following oath : attokney's oath. Art. XI. sec. 10. Every attorney or other practitioner at law shall, in open Court, take and subscribe the follow- 12 MARYLAND CHANCERY PRACTICE. ing oath or affirmation : I do solemnly swear (or affirm) that I will at all times demean myself fairly and honor- ably as an attorney and practitioner at law; that I will bear true allegiance to the State of Maryland, and sup- port the Laws and Constitution thereof; that I will bear true allegiance to the United States, and that I will sup- port, protect, and defend the Constitution, Laws and Gov- ernment thereof, as the supreme law of the land; any law or ordinance of this or any State to the contrary not- ^withstanding. In the Supreme Court of the United States, and in the Federal Courts in the States, negroes are admitted as practitioners, but the Maryland statute expressly limits the profession to "free white male citizens above the age of twenty-one years." In the City of Baltimore all applications for admission are made to the Supreme Bench. Gentlemen of the Bar from other States are sometimes admitted, or rather allowed to try a cause, without the formality of a regular admission. This was done recently in a trial before the Superior Court of Baltimore City in the "Butler" case. The Solicitor, in the conduct of the cause, can make agreements in relation thereto, which will bind the party for whom he acts. See 11 Md. 389. 14 Md. 158. 3 Gill, 447. 4 Gill, 1. 1 Md. Chan. Dec. 127. 4 Md. 306. S.Peters, 98. He may submit a cause to arbitration — 8 Md^ 169 — or make a compromise. — lb. Where the appearance of an attorney is entered on the record it is considered as done by the authority of the paj-ty ; and whatever is done in MARYLAND CHANCERY PRACTICE. I3. the progress of the cause is regarded as done by, and binding on, the party himself — the fidelity of the attorney in the discharge of his trust being a question between him and the party for whom he undertakes to act. 3 Md. Ch. Dec. 392. 2 Md. Ch. Deo. 143, 425. Professional communications to an attorney are privi- leged, and cannot be disclosed. 1 Md. 504. 2 Md. Ch. Dec. 231. Affirmed in 9 Gill, 361. 18 Md. 528. Communications which a client makes to his legal adviser, for the purpose of professional advice or aid, should not be disclosed ; upon such the seal of the law is placed, and remains forever, unless removed by the party himself, for whose protection the rule was established. Chew vs. Farmers Bank of Maryland, 2 Md. Ch. Dec. 231, (affirmed in 9 Gill, 361.) Communications made by a client to a witness in rela- tion to the provisions of her will, in the drawing of which the witness was acting as her attorney, the reasons assigned for such provisions, and the conversations that took place upon that subject, fall clearly within the rule, and should not be disclosed. Ibid. But, a Avitness must disclose any information, pertinent to the cause, which has no necessary connection with his professional character, and which he did not acquire by reason of the confidence reposed in him on account of that character. Ibid. When a witness makes objection to a question on this ground, he must be understood as making it in behalf of the client; and therefore, when the client, or the party representing him, stands by, and does not release the witness fix)m the obligation not to reveal the information, he must be understood to approve of the objection, and to insist upon his privilege. Ibid. 14 MAEYLAND CHANCERY PRACTICE. The proper way to bring the question of privileged communications before a Court of Equity, is for the wit- ness, when he declines answering the interrogatory, to state his objection before the commissioners, who return the commission with what is called the witness' demurrer, and the question is then set down for argument. Ibid. Whatever is done by the attorney in the progress of a cause is considered as done by the authority of the client, and is binding on him. Thornburg vs. Macauley, 2 Md. Oh. Dec. 425. An attorney, who has a claim for collection, cannot, without the authority of his client, take a bond or any- thing else but money, in satisfaction of the debt. Kent vs. Ricord, 3 Md. Ch. Dec. 392. But the power of the attorney over the conduct of the cause is co-extensive with that of his client; he may agree not to demand a judgment, or stipulate for a cessat executio, and any violation of this agreement will give the opposite party title to relief, as if the agreement was made with the express authority of the client. Ihid. When the appearance of an attorney is entered on the record, it is always considered that it is by the authority of the client, and whatever is done in the progress of the cause by such attorney, is considered as done by the party and is binding upon him. Ibid. An attorney for a creditor may agree to suspend the prosecution of the suit until the deficiency in certain assignments, which he received from the debtor to pay the claim, should be ascertained, and that execution should not be issued on the judgment until these assign- ments were collected, and if this agreement is violated, equity will enjoin the premature enforcement of the judg- MAEYLAND OHANGEEY PRACTICE. 15 ment. Ihid. See 3 Md. Digest, Title "Attorney and Solicitor, " p. 46. The attorney has a lien upon papers in his possession, and perhaps on the decree for his fees. 12 Wendell, 261. Baltimore County Court (Judge Pukviancb) once decided that an attorney had a lien on the judgment for his professional fees in the cause in which the judgment was rendered. An attorney w^o has been consulted professionally can- not afterwards purchase an outstanding adverse title to the land for himself — his purchase will enure to the bene- fit of his client — nor can he do so after the relation of client and attorney has wholly ceased. 8 Watts, 81, 94, 100. 3 Watts & Serg., 487, 493. 5 W. c& S., 348. 1 Casey, 354. Transactions between Solicitors and their clients are subject to a very severe and jealous scrutiny by Courts of Equity. Their dealings, while occupying this confiden- tial jelation, are required to be eminently fair and consci- entious, or they will be annulled or disregarded. Vide Sto. Eq. Jur. sec. 310. CHAPTER III. CLERKS OF COURTS. RELATING TO CLEEKS GENERALLY. Code, Art. XVIII. Sec. 1. Every clerk shall have the custody of the books and papers pertaining to his office, and shall carefully keep and preserve the same ; he shall file all papers delivered to him to be filed, and shall record all judgments, decrees, deeds and writings which by law, are required to be recorded in the office of which he is clerk ; he shall issue all writs and process which by law may be issued from the Court of which he is clerk ; he shdll give a copy of any paper or record in his office to any person applying for the same, upon being paid the usual fees for transcribing such paper or record, and sjiall annex thereto his certificate, under the seal of his Court if required ; he shall make proper entries of all the pro- ceedings in the Court of which he is clerk, and all entries and records shall be made in a fair, legible hand, in well bound books procured by him for that purpose ; and shall perform all the duties required of him, or which may hereafter be required of him, by law. ft DAILY ATTENDANCE AT OFFICE. Sec. 2. Every clerk shall attend at his office for the transaction of the business thereof, every day except Sun- days, either in person or by deputy, unless prevented by sickness, accident or necessity. MARYLAND CHANCERY PRACTICE. 17 NOT TO -ISSUE BLANK WRIT. Sec. 3. No clerk of any Court of this State shall deliver to any attor^iey^ sheriff or other person, any blank wtit whatsoever; and any clerk so offending shall be subject to a penalty of one hundred dollars. EECEIVE AND PRESERVE PAPERS, &C. Sec. 4. Every clerk shall receive all books, docu- ments, public letters and packages sent to him pursuant to law, and shall carefully dispose of them as the law requires. EXECUTION TO ANOTHER COUNTY WITHOUT A RETURN OF NULLA BONA. 1865, ch. 5 amends section 5 as follows : Sec. 5. The clerk of any of the Courts of this State may issue an execution of judgment or decree directed to the sheriff of another County, whether a return of nulla bona to a writ of execution issued to the sheriff of the County or City, wherein the said judgment or decree was rendered, has been made or not, which writ of execution issued and directed to the sheriff of another County, shall be made returnable to the Circuit Court of the County to which it may be sent, and if sent to the City of Balti- more, returable to the Superior Court of said City ; and there shall be sent therewith by the clerk issuing the same, to the clerk of the Court to which said writ shall be returnable, a copy of the docket entries in the case upon which the Court may proceed on said execution by renewal or otherwise, in the same manner as if said 18 MARYLAND OHANCEEY PRACTICE. execution had issued on a judgraent or decree rendered in said Court, and attachments on judgments or decrees, shall be regarded as executions in the meaning of this section; provided, nevertheless, that no execution or attachment on judgment shall be issued and directed to another County earlier than the same could be issued and directed to the sheriff of the County or City wherein the same may have been rendered, and if there has been no return of nulla bona until the plaintiff or plaintiffs, or his or their attorney of record shall make and file with the clerk issuing the same, an affidavit that he or they are unable to discover in the County or City where the judgment or decree has been obtained property from which the same can be realized ; and, provided further, that no judgment or decree shall be a lien upon real estate situated in another County from that wherein the said judgment or decree was obtained, or in the City of Balti- more, except from the date of the entry of the copy of the docket entries by. the clerk of the Court to which the said writ shall be returnable. ENTRY OP DECREES SATISFIED. Sec. 14. The clerk of any Court may enter any judg- ment. or decree satisfied upon the order in writing of the plaintiff or his attorney, and shall file such order among the papers in the cause. ONLY CERTAIN DECREES TO BE RECORDED. Sec. 19. No clerk shall record any judgment or decree except those relating to the title of lands, or those under which lands have been sold in virtue of an execution thereon. MARYLAND CHANCERY PRACTICE. 19 COPY OF EBOORD. Sec. 20. If any person applies for a copy of the record of a judgment or decree, in any case where the judgment or decree is not required by law to be recorded, the clerk shall make and certify a copy of the same from the papers, minutes and docket entries of such case, which shall be as available as a regular transcript of a recorded judgment or decree, ENTER APPEAL. Sec. 21. The clerk of any Court shall, upon applica- tion during the vacation of said Court, enter an appeal from the judgment, order or decree of said Court to the Court of Appeals. APPROVE BONDS. Sec. 22. The clerks may approve any appeal bond, writ of error bond, bond for removal of proceedings by writ of certiorari, injunction bond, trustee's bond or receiver's bond, to be filed in their respective Courts. SUPERSEDEAS. Sec. 23*- The clerks of the Circuit ' Courts in the several Counties, qf the Superior Court of Baltimore City and the Court of Common Pleas shall have the power and jurisdiction to take supersedeas of judgments and decrees in their respective Courts, as a justice of the peace has by law, and the supersedeas as taken shall have the same effect as if taken by a justice of the peace ; and every 20 MAEYLAND CHANCERY PRACTICE. security in a supersedeas of a judgment rendered in the respective Courts, and superseded before the clerks of said Courts, shall sign the same, or if they cannot write, make their marks, to be attested by the clerk; and the several clerks shall be entitled to a fee of twenty-five cents for each supersedeas. Seo. 24*. It shall be the duty of the clerks of the respective Courts and of the justices of the peace, in taking the supersedeas of any judgment, to accept no party as a superseder, unless satisfied that said party is worth in real or personal estate, over and above his actual debts, the full amount of the judgment proposed to be superseded. PASS ORDERS NISI RATIFYING AUDITORS' AOCOUNT. Sec. 26. The clerks of the several Circuit Courts for the Counties and the City of Baltimore, the clerk of the Superior Court of Baltimore City, and the clerk of the Court of Common Pleas, shall each have concurrent power with the Judge of his Court to pass all orders nisi for the ratification of auditor's reports and accounts, but not final orders. PASS ORDERS NISI RATIFYING SALES UNDER DECREE. Sec. 27. The clerks of the Circuit Courts for the Counties and the City of Baltimore, and the clerk of the Superior Court of the City of Baltimore, may each pass all orders nisi for the ratification of sales made and reported under decrees or orders of the Court of which he is clerk, but not final orders. MARYLAND CHANCERY PRACTICE. 21 ISSUE COMMISSIONS. Sec. 28. Every clerk may issue commissions to take testimony to the standing commissioners appointed by his Court for that purpose, and if the parties agree thereto in writing, may issue a commission to any person or persons named in such agreement. Sec. 29. When an infant defendant is returned "sum- moned," the clerl^ may issue a commission to some discreet person to assign a guardian for and take the answer of such infant. PASS ORDERS OF PUBLICATION. Sec. 30. They may pass and issue orders of publica- tion to notify non-resident defendants. FEES. Sec. 31. No clerk shall receive any fees or compensa- tion for services rendered as clerk, until he has given bond, executed and approved as herein provided. Sec. 32. Every clerk shall make out accounts of his fees in a fair, legible hand, and in words at length. (The sections omitted have no reference to Courts of Equity.) Court required to inspect their Records. See Code, Art. XXIX. sec. 13, p. 194, re-enacted by act of 1866, ch: 26. 22 MARYLAND CHANCERY PRACTICE. INSPECTION OF EBCORDS. 1866, ch. 26 repeals section 13 and re-enacts it, with amendments, as follows : Sec. 13. It shall be the duty of the Judges of the several Courts of law and equity, at every term, to inspect the records and papers of the offices attached to their respective Courts, relating to lands, tenements, or other real estate, and examine the condition thereof and see whether the clerk of such Court has performed the duties required of him by law, relating to the recording of judgments, decrees, executions and proceedings, and whether he has entered and transcribed the docket entries as required by law. And if it should appear on such examination, that any of the tecords have become so dilapidated and worn as to require them to be transcribed, he shall order and direct the clerk to transcribe the same into new record books, which the clerk shall procure for that purpose ; and such new records when so transcribed shall be carefully examined and certified by said clerk, and when so examined and certified, shall be substituted for, and become the records of said Court in lieu of the worn out records ; and the Mayor and City Council of the City of Baltimore, and the County Commissioners of the several Counties respectively, shall levy such sum of money as they shall deem a fair compensation for the labor of the clerk in making such new records. FOEM OF CERTIFICATE BY THE JUDGE. Campbell W. Pinkney, Judge, made a thorough inspection of the records and papers in the clerk's office of the Circuit Court of Baltimore City relating to the MARYLAND CHANOEEY PRACTICE. 23 lands, tenements or other real estate as required by Art. XXIX. sec. 13, of the Code of General Laws, and exam- ined the condition thereof, and was satisfied that the clerk of said Court has faithfully performed the duties required of him by law. CHAPTER IV. SECTION I. THE COMMENCEMENT OF THE SUIT ISSUING, SERVING AND RETURNING PROCESS. A suit in Equity is commencecj by filing with the clerk of the Court a bill or petition, containing a plain statenaent of the complaint or grievance for which redress is sought, and the kind of relief required, with a prayer for subpoena and other process, suited to the exigency of the case. The bill or petition is usually signed by a Solicitor of the Court, but this is not absolutely essential, as a Com- plainant may sign his own bill and conduct his own case. See 4th Rule Cir. Ct. Bait. City. The bill is endorsed by the party filing it with the names of the complainants and respondents, with an order to the clerk to file it and to issue process. As soon as received, the clerk enters it upon his •docket, issues as directed, and hands the writ to the Sheriff to be served. The writ is made returnable to the next term of the Court. The sheriff then seeks the respondent named in the writ, and summons him to appear and answer the Bill ; this is done by reading the summons to the party* (oY informing him of the fact,) if he can be found, or by leaving a copy at his place of MARYLAND CHANCERY PRACTICE. 25 business or at his dwelling-house with one of his family. If the sheriff cannot serve it on the party, he returns it "?ion est." , Process against a corporation holding and exercising franchises within this State may be served on the presi- dent, director, manager, or other officer of the corpora- tion. Code, sec. 99, p. 540. For process against "Corporations," see Code, sees. 99, 100, 101, 102, &c. A respondent (except in the cases specially provided for in the Code,) cannot be sued out of the County in- which he resides until the sheriff or coroner of the County in which he resides shall return him "non est" on a summons issued in such County. "No person shall be sued out of the County in which he resides until the sheriff or coroner of the County in which he resides shall have returned a non est on a summons issued in such County ; Provided, that nothing herein contained shall' apply to any person who shall abscond from justice in the County where he lives, but such person may be sued in any County where he may be found; this section not to apply to ejectment, dower, replevin, scire facias on judgment or decree, nor to heirs, devisees or terre-tenants against whom process may be issued to another County." Code, sec. 87, p. 537. Where a party is improperly sued out of the County of his residence, he will be discharged on motion supported by affidavit. 4 H. & McH. 165. 3 Bl. 656. 7 Md. 393. A corporation is within the spirit of this law. 3 Bl. 656. But where defendants reside in different Counties, or in a County and the City of Baltimore, the Court where 26 MARYLAND CHANCERY PRACTICE. any one of the defendants resides shall have jurisdiction, and the bill or other proceedings naay be filed or had in such Court. Vide Code, page 83, sec. 59, Art. 16. When the defendants or any of them reside in a differ- ent County from that in which the land lies, which, is to be affected by a suit, the Court of the County or City where an^ defendant resides, or where the lajid or any part thereof lies, shall have jurisdiction, and the bill or other proceedings may be filed or had in such Court. Code, sec. 60, page 83. Where all the defendants are non-residents, the bill shall be filed in the Court of the County or City where the property to be affected by such bill, or some part thereof, lies, or shall be at the time the suit is instituted. Code, sec. 61, p. 83. The reader will note that while sec. 60 refers exclu- sively to land, the above seciion applies to all kinds of property. An executor or administrator may be sued in the County where he resides, or where he obtains letters of administration. Code, Art. LXXV, sec. 88, Title "Pro- cess," p. 537. All process shall be directed to the sheriff, unless he is disqualified, or unless where, by law, the writ or process may be directed to another ofilcer. See provisions of the Code, page 597, Title "Serving Process." The summons must be served by the return day, but service on the .return day is sufficient ; service on Sunday is not allowed. Alex. Ch. Prac. 17. Mr. Alexander says that in some cases where an infant has been concealed, so that the subpoena could not be .served on him, the Court has ordered the writ to be served on the parent or other friend in whose custody he was sup- MARYLAND CHANCERY PRACTICE." 27 posed to be. But the Code provides that if any person shall secrete an infant against whom process has issued, so as to prevent the service of such process, such person shall be liable to attachment and punishment as for con- tempt; or if any infant secretes himself or evades the service of process, he may be proceeded against as if he were a non-resident infant. Code, sec. 50, page 81. The Code further provides that in all cases where two successive sui^cenas against a defendant have been •returned "non est," or upon the return of one subpoena "non est," and proof by affidavit that the defendant hath kept out of the way, or secreted himself, to avoid the service of the subpoena, he may be proceeded against as if he were a non-resident. This to include corporations as well as other persons. Sec. 92, p. 90, Art. XVI. If returned "summoned," the appearance, if necessary, is enforced by attachment. • Code, p. 92, Art. XVI. sec. 104. The first day of each term is the return day for equity process. The writ or subpoena is tested in, the name of the Circuit Judge, with the seal of the Court attached. By arrangement between counsel, respondents sometimes appear and answer or plead without the actual issue of the subpoena. As the only object of the writ is to notify the defendant of the suit, and to get him to appear — a voluntary appearance answers the purpose. Where a respondent lives out of the County or City in which the proceedings are commenced, the process is sent to the sheriff of the County where the party resides. Sec. 123. A Court of Equity may issue process of any sort to any part of the State — Code, p. 98 — ^and provision is made for the service and return of such process. Code, 28 MARYLAND CHANCERY PRACTICE. Title ^'Sheriff:' Art. LXXXVIII. Vide sections 19, 20, 21, pp. 598, 599. If the subpoena be against kusband and wife, service on the husband alone will be sufficient, unless the separate estate of the wife is sought to be charged, when she must be served separately. And in general, service on the wife will be good service on the husband. Alex. Chan. Prac. 17. Sheriff liable to a fine for not returning process. Code, sec. 19. p. 598. On the subject of "Serving Process," the reader is referred to the Code, page 597, where the duties and obli- gations of the sheriff on this subject are set forth at large. Also see the Title "Process" in the Code, page 537. For Process against corporations, consult sectiojis 99, 100, 101, 102, 103, page 540. Judge Martin, in the Superior Court, recently decided in the case of the Tobacco Pipe Company, (a domestic corporation,) that service on an errand boy or messenger in the office of the company was not sufficient service. The service must be on an officer of the compan]g. For the appointment of elisors by the Court, vide sections 111, 112, 113, p. 543. City of Bal- timore, a County so far as relates to sending process. Vide sec. 114, page 543. Clerks sending and receiving Process from or to another County, see sees. 104, 105, 106, 107, 108, 109, pages 541, 542. Where process shall be prevented or resisted by threats or violence or superior force, the mode of service is pro- vided for by the act of 1861, ch. 69. 1 Sup. Code, p. 63, quid vide. Bee General Supplement of 1868 at p. 190. MARYLAND GHA'NCERY PRACTICE. 29 Service of process on a privileged person. Vide 13 Md. Peters vs. League. Sucli service is not void but a mere irregularity .which may be waived by a trial or con- fession of judgment — the privilege must be claimed by plea or motion in the particular case made at the proper time — nor is service of process avoided by privilege in respect to the place where it was served. Ibid. In the "Butler" case in the Superior Court of Balti- more City, October 31, 1868, it was held by the Court (Dobbin, J.) that the privilege, accorded to members of Congress by Art. I. sec. 6 of the Const. U. S. from "arrest," relates to an "arrest" in its technical legal sense, and does not apply to cases of mere citation or summons, which involves no restraint of the person of the defendant, and which he could obey or disregard at pleasure. ' That the privilege could be pleaded in those cases, where disotedieuce of the "summons" could be followed by an attachment against the person of defendant or other personal molestation. Therefore it follows that while a member of Congress, in Maryland, is liable to suit in a Common Law Court, he could plead his privi- lege, in the event of service upon him of a subpoena from Chancery, because of liability to attachment for disobe- dience of the writ. A defendant may move to set aside any process before appearance, and he should do so if he desires to take advantage of any irregularity — as appearance is in most cases a waiver of any irregularity in process. 30 MARYLAND CHANCEEY PRACTICE. SECTION II. OF ATTACHMENT — AND OEDERS PRO CONFESSO — SEQUES- TRATION. When a party has been summoned and fails to appear as required^-or having appeared and failed to answer, the complainant can apply to the Court for an interlocutory decree, and issue a commission ex 'parte for the taking of testimony to prove the allegations of the bill— and the Court will proceed to final decree as if the defendant had appeared and answered. Code, p. 95, sec. 115. See also sec. 149, p. 103. Where the bill charges matter to be within the private knowledge of the defendant and shall pray a discovery on oath, and an interlocutory decree has been entered and the complainant shall satisfy the Court by affidavit to be taken in open Court and filed in the cause that such mat- ter does rest in the private knowledge of the defendant and that there is reasonable ground for believing, prima facie, that such matter does exist, the Court is required to order the said bill as to such matter, the same being sufficiently alleged to be taken pro confesso, and to pro- ceed to make a final decree in the case — in the same manner as if such matter had been proved or admitted by answer. Code, sec. 116, page 95. But any such party may appear at any time before final decree and. file his answer on oath — said answer to be filed forthwith or within such reasonable time as the Court may appoint. And such proceedings shall be had as if the answer had been filed before the interlocutory decree or order MAEYLAND CHANCEEY PRACTICE. 31 and the Court shall impose terms, (fee. See the section 117, pp. 95, 96. Code, Art. XVI. Sec. 117. Any defendant a,gainst whom an interlocutory decree shall he entered under the preceding sections, and also any defendant against whom an order to. take a bill as to any matter or thing, pro confesso, may be passed, may appear at an;^time before final decree and ^le his answer, on oath, to the bill, which shall be filed forthwith, or within such reasonable time as the Court in its discretion, and on special cause shown by affidavit, shall appoint; and on such answer being filed, such proceedings shall be had as would or might have have been had in case such answer had been filed before the passage of such interlocutory order or decree, but the Court shall impose such terms on the defendant as the condition of permitting such answer to be filed as such Court may, in its discretion under all the circumstances of the case, judge reasonable and proper for avoiding delay or expense, and for the attainment of justice; and the filing of such answer shall in no case afiect the validity of any commission previously issued to take testimony, or of the proceedings, or any of them, under such commission, or of any testimony previously taken and returned under any such commission. Sec. 118. The Court may, for the purpose of execut- ing a decree, or to compel the defendant to perform and fulfil the same, issue attachment of contempt, attachment with proclamations and sequestration against the defend- ant, and may order an immediate sequestration of the real and personal estate and effects of the defendant, or such parts thereof as may be necessary to satisfy the decree and clear the contempts, or may issue a _y?m 32 MARYLAND CHANCERY PRACTICE. facias against the lands and tenements, goods and chat- tels of the defendant, to satisfy the said decree, or may- issue an attachment by way of execution against the lands, tenements, goods, chattels and credits of the defendant, to satisfy the said decree, or the Court may cause, by injunction, the possession of the estate and effects whereof the possession or a sale is decreed, to be delivered te> the plaintiff, or otherwise, according to the tenor and import of such decree, and as the nature of the case may reC[uire; and in case of sequestration, the Court shall order payment and satisfaction to be made out of the estate and effects so sequestered, according to the true intent and meaning of the decree ; and in case any defendant shall be arrested and brought into Court upon any process of contempt issued to compel the performance of any decree, the Court may, upon motion, order such defendant to stand committed, or may order his estate and effects to be sequestered, and payment made as above directed, or possession of his estate and effects to be deliv- ered, by injunction as above directed, until such decree or order shall be fully performed or executed, according to' the tenor and true meaning thereof, and the contempt cleared; but where the decree only directs the payment of money, no defendant shall be imprisoned, and process of commission of rebellion and sergeant-at-arms are abolished. Sec. 119. In all cases where a bill for discovery merely, is filed against a defendant of full age, and the subpoena issued thereon is returned summoned, and the defendant fails to answer within the time fixed by the rules or order of the Court, upon satisfactory proof, by affidavit or otherwise, being produced to the Court that such subpoena was duly served, the Court may examine MARYLAND CHANCERY PRACTICE. 33 the complainant in open Court, or upon interrogatories, on oath, touching the truth of the allegations in the bill, and if from such examination the Court shall be satisfied ■prima fade that the allegations in the bill are true, then a decree shall be passed which shall have the same effect, in evidence or otherwise, as the answer of the defendant confessing all the allegations of the bill could have ; or if the subpoena shall be returned summoned, and the defendant shall fail to appear, or, after appearance, shall fail to answer, an attachment of contempt may issue, and if the said attachment is returned served, and the defendant fails to appear or answer as the case may be, the Court, upon being satisfied of the service of both sub- poena and attachment, may pass a decree pro aonfesso, or if in such case the attachment is returned non est inventus, an attachment with proclamations may issue; and if the defendant shall fail to appear or answer, as the case may be, the Court, upon being satisfied of the service of the subpoena, may pass a decree pro confesso, without examining the complainant, in its discretion, and such decree, in either case, shall have all the effect, in evidence or otherwise, that the answer of such defendant confessing all the allegations in the bill would have. Sec. 120. In any case where a defendant has been returned summoned and shall fail to appear, an attach- ment may issue to compel the appearance, and if the attachment is served and the party fails to appear by the first day of the next term after the term to which such attachment was returnable, or if the attachment be returned non est, an attachment with proclamations may issue, and if the defendant shall not appear by the first day of the term next after that to which the attachment with proclamations was returnable, the Court in either 3 34 MAEYLAND CHANCERY PRACTICE. case may pass a decree pro eonfesso, or may order a com- mission ex parte to take evidence. Sec. 121. If any defendant after appearance shall fail to answer within the time prescribed by the rules of Court, an attachment may issue against such defendant to compel him to answer, and he may be committed as for a contempt for not answering, and if, the attachment shall be returned served, and the defendant does not answer by the first day of the term next after that to which the attachment was returnable, or if the attachment be returned non est, an attachment with proclamations may issue, and if the defendant shall fail to answer by the first day of the term next after that to which the last named attachment was returnable, the Court in either case may pass a decree pro eonfesso against such defend- ant, or may order a commission ex parte to take testi- mony ; any defeiidant under this or the preceding section may answer at any time before final decree, on such terms as ]the Court may prescribe. Sec. 122. A complainant may take at his election any of the proceedings authorized by this article against a defendant who fails to appear or answer. Sec. 123. A Court of Equity may issue process of any sort, including commissions to take testimony to any part of the State. Sec. 124. No decree pro eonfesso shall be passed against an infant or insane defendant under the preceding, sections relating to process, but such infant or insane defendant shall be proceeded against according to the pro- visions of this article relating specially to infants and persons rum compos mentis. Mr. Alexander says, page 21, "the writ of sequestra- tion though disused in practice may still be obtained and MARYLAND CHANCERY PRACTICE. 35 may be advisable, if a discovery is essential to the complaiaant." For "Sequestration" see Code, sec. 118, p. 96. Keig- ler vs. Ward, 8 Md. 654; 4 Md. C. D. 87. If the defendant is taken upon any attachment, he may be released on bail or the sheriff may commit him to his County jail. The writ requires the sheriff to return the writ with the body of the defendant. A. Ch. P. 23. It is not proper jto issue an attachment against a ''non compos" defendant. After service of the subpoena, an order may be obtained on motion, that his committee (if any) shall answer — and obedience to this order may be enforced by attachment. If the defendant has no com- mittee the Com-t will, on motion, appoint a committee or guardian ad litem. In Post vs. MacKall, a guardian was appointed to answer for a lunatic defendant who was in the Maryland Hospital, on the affidavit of the attending physician — and it was assumed that a guardian might in like manner be appointed for "a defendant whose age and infirmities rendered him incapable of defending his rights. A. C. P. 33, 34. The author is informed by an Equity Judge, who pre- sided for some years in Baltimore, that he refused to treat a party as a "non compos" who was not regularly found so by an inquisition. It is certainly very loose practice to accept an ex parte certificate of a physician that a jKffty is a Tion compos, and requires a guardian to answer for him. If such is the law it ought to be changed by legislative enactment. CHAPTER V. PABTIES. Who are necessary parties to a suit in Equity? This a subject of great practical importance, and of no inconsiderable difl&culty. It can only be glanced at in a work like tbe present. Some of the general principles and rules of practice will be stated. The subject comes more properly under the title of "Pleading," and books on Equity Pleading must be consulted by the practitioner. The fourth chapter of Story's Equity Pleadings will be found of much value. It may be stated as a leading and guiding rule, that all persons are to be made parties (complainants or defend- ants) to a suit in Equity who have a legal or beneficial interest in the subject matter of it. 12 G. & J. 1. Sto. Eq. PI. sees. 76a, 76b, 6 H. &. J. 10, 21. 2 Bland, 306, 509,678. 3 Bl. 1. In the case of the State of Virginia vs. The Chesapeake and Ohio Canal Company and others, in the Circuit Court of Baltimore City, the point having been taken that the State of Maryland had • an interest and was a necessary party, and it being conceded that the State could not be mkde sucK party by the complainant, the Court, Judge PiNKNEY, quoted in his opinion with approval. Story Equity Pleadings, sec. 135, quid vide. See opinion of the Court, 6th October, 1868. The Court ordered the proceedings stayed, until notice could be formally served MAEYLAND CHANCEEY PEACTICE. 37 on the Attorney General, the Governor and the Board of Public Works. The question, who are necessary parties to a suit in equity depends in a great measure upon the object, as well as the subject, of the bill, the relief sought, the issue between the parties, and the manner in which their seve- ral interests may have arisen. It is impossible to state a general rule applicable- to all cases. Crook vs. Brown, 11 Md. 158. In a suit against a married woman, it is necessary to make her husband a party. If the claim is made by the husband in right of the wife, they must sue in their joint names. But if the wife claims in opposition to her hus- band, then she must sue by prochein ami, making the husband a defendant. 2 Vesey, 452. Where the interests of the husband and wife are antag- onistic, and they are sued together as defendants, she may obtain an order to defend separately. 1 Ch. Rep. 68. A. C. P. 53. When the husband makes his wife a defendant she may answer separately, without an order of the Court. 3 Atk. 478. If the husband is out of the jurisdiction of the Court, the wife may be compelled to answer separately. 2 Vern. 104. 3 P. Wms. 37. If she refuses to join in defence with her husband, she may be compelled to make a separate answer, 1 Ch. Cases, 296. Persons non compos sue and defend by their trustees or committees, or guardians appointed by the Court. Infants sue by guardian or prochein ami, and defend by guardian. — Ibid. See "Parties to a Bill." PI. in Ch. by Cooper, chap. 1, sec. 2. No one is a party to a suit against whom no process is prayed. 2 Bl. 99. 38 MARYLAND CHANCERY PRACTICE. The non-joinder of a mere nominal or formal party will, often be dispensed with if entire justice can be done with- out him, or if be cannot properly be made a party to tbe suit. Hoye vs. Johnson, 2 Gill, 291. No person sbould be made a party who has no interest in the suit, and against whom, if brought to a hearing, no decree can be had. Ibid. 11 Md. 158. 12 Md. 443. ' Only those persons are bound by the decree . who are made parties to the suit. 16 Md. 200. Where a bill is filed for the sale of the real estate of a deceased debtor for the payment of his debt, on the ground that the personal estate has been exhausted, (or is insufficient,) the executor or administrator of the deceased must be (also) a party with the heirs at law. See cases, 1 Md. Dig. page 396, sec. 7. The general rule is that all incumbrancers shall be made parties, whether prior or subsequent; and though cases may be found where it has been held that a prior mortgagee need not be made a party because his rights are paramount, it would not be safe, in the face of oppos- ing authorities of the highest respectability, to say that such is the established law of the •Court of Chancery. Wylie vs. McMakin, 2 Md. Oh. Dec. 413. The trustee of an insolvent debtor is a necessary party to a bill filed by creditors to vacate a fraudulent convey- ance made by the insolvent before his application.' 7 Gill, 366, Swan vs. Dent. 8 Md. 34, Jamison vs. Chesnut. To a bill to vacate a deed as fraudulent as against the creditors of the grantor — the grantor is a necessary party. 17 Md. 525, Lovejoy vs. Irelan. 1 Wallace U. S. R. 81. MARYLAND CHANCERY PRACTICE. 39 Where a creditor's bill assails a deed for the purpose of rectification, or to vacate it, all parties to the deed are necessary parties to the suit. Ward vs. HoUins, 14 Md. 158. 1 Wallace, U. S. Rep. 81. In cases for specific performance the general rule is, that it is only necessary to make those persons parties who are parties to the contract. 11 Md. 158. All the parties to the original bill should be made par- ties to a bill of review. 8 Peters, 262. On a bill filed for contribution among co-sureties, one who is insolvent need not be made a party; and such insolvency should be averred in the bill. Young vs. Lyons, 8 Gill, 164. Sto. Eq. PI. sees. 169, 169a. Where a suit is brought against a trustee concerning the trust property, it is necessary to make the cestui que trusts parties also. Sto. Eq. PI. sees. 150, 210. The usual practice is to raise the objection of multifari- ousness as to parties, by demurrer-; when not raised until the hearing, it is not always considered fatal, and will be allowed or otherwise, in the discretion of the Court. Hamilton vs. Whitridge, 11 Md. 128. If a party is included in a suit, who has no interest whatever, he may object by way of disclaimer, and if this clearly appears, the bill will be dismissed as to him, and proceed against the others — or an amendment may be resorted to for the purpose. After the institution of the suit other persons may become parties, either upon their own application by peti- tion, or at the instance of the complainant ; and on stating sufficient grounds the Court will pass an order directing them to be made parties. Such new party may become either complainant or defendant, as his interest may require. As to the right to be made a party, see Judge 40 MARYLAND CHANOEEY PEACTIOE. Krbbs' opinion in the Circuit Court in the Baltimore and Ohio Rail Road case. Vide 14 Md. 479. Executors or administrators may sue in equity in any case which the testator or intestate might have commenced and prosecuted ; and they are liable to be sued in cases where the deceased might have been sued. Code, page 641, sec. 105. See 9 Gill, 97. Not only must every suit be commenced with proper parties, but if from death, marriage, insolvency, or other cause, the interest in the subject matter changes or devolves on others, new parties must be supplied from time to time, so that when the time arrives for a final decree, all proper and necessary parties will be before the Court to be bound by the decree. No suit in chancery shall abate by the death of any of the parties in cases where the rights involved in the suit survive. Code, Article XVI. page 70, sec. 1. Any of the surviving parties may file suggestion of the death, setting forth when the death occurred, who is the legal representative of such deceased party, and how he is rep- resentative — whether by devise, descent, or otherwise. Sec. 2. Upon such suggestion subpoena issues to such representatives, if in the State — if not, then he is notified by publication as a non-resident. — Sec. 3. The repre- sentative may appear and make the suggestion of death; Sec. 4. Same proceedings had where executor or admin- istrator dies. — ^Sec. 5. If any party dies after the cause is set down or sub^ mitted for hearing, a decree may be passed as if such party were alive — he having a solicitor in Court. Sec. 6. In practice this provision is necessarily confined to cases where the decree to be passed can have effect without the co-operation of the representatives of the deceased party. MAEYLAND CHANCERY PRACTICE. 41 2 H. & J. 289. And such decree shall have the same effect as if no death had occurred, except that it shall not be entitled to a preference in the distribution of assets. Sec. 6. 1797, ch. 114, sec. 4. If any defendant dies after a decree for account, sale or partition, or after final decree, &g. (fee, the Court may order, in its discretion, the case to be proceeded with, as if no death had occurred ; or may order a bill of revivor or supplemental bill to be filed, and the proper represen- tative of such deceased defendant to be made a party, &c. Vide sections 7, 8, page 71, Code. In construing these sections, refer to 1841, ch. 22. 1842, ch. 229. 1 Md. Oh. Dec. 342. 1 Bland, 544. 4 Md. Ch. D. 364. 11 G. & J. 1. 18 Md. 434. In a suit in chancery where any of the parties a,re under age, feme coverts, of unsound mind, or non-resi- dents, the proceedings may be amended 5y making new parties, or otherwise; and it shall not be necessary to have any new pleadings or proofs in such cases of amend- ment, unless the Court shall deem such new pleadings and proofs necessary to promote the ends of justice, or unless such new party desires to plead, or objects to the proof. Code, page 73, sec. 17. In case of marriage the Court may, on such terms and notice as it shall deem proper, allow and order any amendment of the pleadings, and the making of any new , or additional parties that such marriage may render necessary or proper. Code, page 72, sec. 13, Art. XVI. 1843, ch. 40. It seems scarcely necessary to add that the application for the making of a new party must be by petition to the Court, alleging the ground of such application, and the necessity for it, and sustaining the facts alleged by affida- 42 MARYLAND CHANCERY PRACTICE. vit or other sufficient proof. If the facts are denied by any party to the cause, the controversy is decided by the Court, at a day set for the hearing, upon such proof as the parties may respectively furnish. The case of Fickey vs. Ohenowyth was recently de- cided in the Circuit Court of Baltimore City, involving a question of practice in relation to the subject of which we are treating, and is here inserted as a decision of the point made, and as a precedent. The facts were as follows : "While a fund in this case was in the hands of a receiver, the assignee of the defendant filed a petition claiming the fund, and asking an order that the receiver pay it over to him. The receiver being required to show cause, among other things, set up the defence that the petitioner was not a party to the cause, and therefore could not come in and claim the fund by petition. That he was a mere stranger to the suit, and if he had any right to the fund he must assert it by originixl bill." Cases cited, 4 Md. Ch. Dec. 23. 1 Bland, 159. 1 Dan. Chan. Prac. 248, note. Case not analagbus to an incumbrancer coming in to get a surplus. 3 Md. Ch. Dec. 17. Not like a party to the suit, asking prptection against waste. 4 Md. 98. The Court (Judge Alexander) sustained the defence* He said: "The petitioner has no standing in this Court. He is not a party to the suit, and cannot, in the manner proposed, make himself so by any known rule of practice in Courts of Chancery, nor intervene in that manner, claiming money belonging to the suit." In closing the chapter, the remark made at the outset is repeated — that the subject of "Parties" belongs pro- perly to Equity Pleading; and the brief review here given MARYLAND CHANCERY PRACTICE. 43 is all the space that could be allowed to it. In the Mary- land Digests, under the title "Equity," sub-division "Pleading," and the heading "Parties," will be found collected all the Maryland decisions in the Court of Appeals on this subject. And in the edition of 1865, by Kedfield, of Story's Equity Pleadings, Chapter IV., all the learning on the subject will be found with the English and American decisions collected. CHAPTEE VI. OF SCANDAL AND IMPERTINENCE. Before treating of the bill and the subsequent plead- ings in an equity cause, we desire to call attention to a matter of practice, of some importance, to wit: "Scandal and impertinence." Suitors sometimes enter upon a legal controversy very much embittered towards their opponents, and are desi- rous that counsel shall spread not only their grievances upon the records in technical form and language, but imagine that their causes will be benefitted, and their antagonists punished by the use of opprobrious terms. Counsel are not justified in putting scandalous allega- tions upon the record, and can only do so, in violation of their own self-respect, and to the lessening of the dignity of the Court that permits it. Scandal consists in the allegation of anything either in a bill, answer or any other pleading which is unbecoming the dignity of the Court to hear, or is coritrary to good manners, or which charges some person with a crime not necessary to be shown in the cause. 1 Har. Oh. 101. Any unnecessary allegation bearing cruelly upon the moral character of an individual is also scandalous. 15 Vesey, 476. 6 Vesey, 514. 1 Johns. Ch. 103. Matter which is impertinent or scandalous will be expunged by the Court on motion. 2 Paige, 349. 5 Paige, 64, 265. Sto. Eq. PL sec. 862. MAKYLAND CHANCERY PRACTICE. 45 Impertinence consists in the introduction of matter into a bill, answer or other pleading or proceeding in a suit -which is not properly before the Court for decision at any stage of the suit. Sto. Eq. PI. sees. 266, 863. The best test to ascertain whether matter is imperti- nent, is to try whether the subject of the allegation could be put in issue and would be matter proper to be given in evidence between the parties. Woods vs. Morrell, 1 Johns. Oh. 103. A, bill may contain matter which is impertinent without the matter being scandalous; but if in a technical sense it is scandalous, it must be imperti- nent. Sto. Eq. PL sec. 270. 1 Paige, 239. If a bill contains scandalous or impertinent matter the objection is taken by petition or exception, and the ques- tion if disputed is determined by the Court. No allegation which is relevant to the matter of the suit and to the decision of it can be impertinent — or scan- dalous — and the degree of relevancy is not material — but a complainant can charge matter which is pertinent, in a scandalous manner. The objection for impertinence in the bill must be taken before answer, and in the answer, before replication. Cooper PI. 18, 19. Scandalous matter may be objected to at any time. Where the matter (to repeat) materially tends to the point in question, and becomes a necessary part of the cause, or material to the defence of either party, the Court never regards matter so averred as scandalous. Ibid. 1 Har. Ch. 102. Alex. Ch. Prac. 53. Impertinence. See 2 Vesey Rep. 24, 631. 5'Madd. Eep. 450. 5 Vesey, 656. 18 E. Com. Law Rep. 201. Eden on Injun6. 71. 46 MARYLAND CHANCEEY PRACTICE. In executing a commission for the taking of testimony it is the duty of the commissioner to take care that nothing scandalous or impertinent is admitted in the statement. Alex. Ch. Prac. 72. A defendant is not required to answer matters purely scandalous. 2 Md. C. D. 190, Wootten vs. Burch. For this subject consult Story Eq. Plead, ed. of 1865, sees. 266 to 271, 862 to 868. CHAPTEE VII. OF THB BILL. Sec. 1. General remark^ , " 2. Interpleader. " 3. To perpetuate Testi- mony — and de bene esse. " 4. Review. Sec. 5. Eevivor. 6. Discovery. 7. Gross bill. 8. Specific Performance. 9. Creditor's bill. 10. Quia Timet SECTION I. The bill should carefully state all the facts upon which the complainant means to rely in order to obtain the redress he seeks, because he is strictly confined to the case presented in the bill, and will not be permitted to enlarge it by evidence or in any other manner. The facts ought to be set forth with all reasonable certainty. Precisely the degree- of certainty required cannot be defined, but precision and directness of averment should be pursued. The bill should state the right, title or claim • of the defendant clearly, and with equal distinctness the injury or grievance of which he complains, the manner in which he is injured, the person by whom it is done, together with the material circumstances of time, place, manner and other incidents, and the particular relief he seeks from the Court. 1 Mit. Eq. PL 37. Coop. Eq. PI. 5. 24 Md. Rep. 338. At the same time care should be taken not to overload it, by superfluous and redundant 48 MARYLAND CHANCERY PRACTICE. allegations or by scandalous and impertinent matter. No facts are in issue unless they are charged in the bill, and only such evidence can be offered as is applicable to the allegations of the bill. Sto. Eq, Plead, sees. 240, 241, 357. 9 Peters 483. 4 H. & J. 521. There has been much controversy on the question, whether, where a fact is charged and put in issue in a bill, the examination of witnesses to the conversations of the defendant are admissible to prove the fact unless such conversations are expressly charged in the hill — the weight of authority in the United States being, that/acis only need be alleged; and proof by conversations or admissions of defendant is received. See note on pages 311to318, 3Gr. Ev. Every material fact to which the plaintiff means to offer evidence ought to be stated in the bill ; but a gen- eral charge or statement of fact is sufficient ; and it is not necessary to charge minutely all the cir'cumstances which may conduce to prove the general charge. 15 Md. 73. Goop. PI. Ch. 6. The general rule is, that if the infirmity of the plain- tiff's case appears upon the face of the hill, the defendant may rely upon it at the hearing, no matter how imperfect, or what the character of the answer ; and it is only with respect to some defences given by statute, that a different rule prevails. 24 Md. 337. 4 G. & J. 420. 4 Md. Ch. Dec. 326. [As to what is scandalous and impertinent, the reader is referred to the preceding chapter of this work on that subject.] Annexed to the bill and forming part of it oftentimes, are specific interrogatories, and these become a material part of the bill when founded on matter contained in the MARYLAND CHANCERY PRACTICE. 49 charging part of it. The defendant is obliged to answer them specifically, and on oath if required to do so in the prayer annexed to the bill. It has been properly said that the character of a bill is determined by the allega- tions and the relief asked for, rather than by the title it assumes. 18 Md. 433. Under a prayer for general relief, the complainant is not entitled to claim relief beyond the general scope and object of the bill. Fenby vs. Johnson, 21 Md. 118. To the rule of almost univer- sal application that the complainant must recover if at all upon the averments of his bill, an exception is sometimes made in cases of bills for "specific performance." In those cases, if the answers show a proper case for relief, it will be granted. Sto. Eq. PL sec. 503, c, ed. of 1865. A party is liable only in the character in which he is sued. 1 Md. 208. 6 Gill, 285. It is not necessary ordinarily that bills in equity should be sworn to ; there are exceptions, however. A bill of interpleader, or for an injunction or receiver, or for relief by reason of a lost instrument, (1 Peters, 241,) are required to be veri- fied by an affidavit — not necessarily of the eomplainant. It can be made by any one who has a knowledge of the facts. The absence of an affidavit in such cases is cause for demurrer. But if the defendant answers without ob- jection, the defect is thereby waived. If there are ex- hibits referred to in the bill, they should be filed with it. The old chancery rule on this subject directed that no subpoena should issue unless the exhibits were filed. See 5th Rule of the Circuit Court of Baltimore City, to the same effect. Upon the bill being filed, the clerk makes a copy of it for the defendant, and the expense of the copy is charged among the taxed costs. 4 50 MAEYLAND CHANCERY PRACTICE. SECTION II. INTEEPIEADEB. A BILL of interpleader is exhibited where two or more persons claim the same debt or duty or other thing from the complainant by different or separate interests, and the complainant not knowing to which of the claimants he ought of right to render the debt or thing, fears that he may be injured by their conflicting claims : therefore, he prays that they may be compelled to interplead, and state their several claims, so that the Court may adjudge to whom the debt or other thing belongs. Sto. Eq. Jur. sees. 806, 7. The bill must be verified by affidavit, in which the complainant should aver that he does not cpUude with either of the defendants ; and if money is the thing in dis- pute the complainant in his bill should offer to bring the sum into Court. He ought to set forth the claims of the respective parties and. aver that he has no interest in the matter in controversy between them. The prayer of the bill is that the parties may interplead and adjust their demands. The bill may be accompanied by a prayer for injunction to restrain them from proceeding against the complainant at law. Sto. Eq. PI. sees. 291, 2, 3, 7. If the defendants do not deny the allegations of the bill the ordinary decree passes that the defendants inter- plead, the complainant is thereby dismissed and with- draws from the suit, with his taxed costs allowed to him. If the facts set forth in the bill are denied, they must be sustained by proof as in any other case. Ibid. sec. 297a. There are cases where a bill in the nature of a bill of interpleader may be filed, in which the complainant has MAEYLAND CHANCEKY PEACTICE. 51 an interest, with others, in the matter in dispute — for the law and mode of pleading in such cases, the books on Equity Pleading must be consulted. Sto. Eq. Pleadings, sec. 297b. In 8 Wheaton, 268, 3 Cond. Rep. 434, it is said, the plaintiff on a bill of interpleader is in general entitled to his costs out of the fund,' and such has been the practice in Maryland, so far as the experience of the present writer extends. If at the time a bill of inter- pleader was filed there was reasonable apprehension that the complainant would be involved in a two-fold respon- sibility, yet if before final decree such cause of apprehen- sion is removed, the bill must be dismissed. Kerr vs. The Union Bank, 18 Md. 396. The same case decides that the position of a complainant seeking relief from conflicting claims, by a bill of interpleader, must be that of continuous impartiality. Where there is any difference in the nature of the demand the plaintiff [Sto. Eq. Jur. sec. 812] cannot make the parties interplead; as if one claimant demands rent for premises, and the other seeks the possession. 2 Ves. p. 810, PI. in Chancery, by Cooper, xxxvi. A bill of interpleader ought to be filed before or immediately after the commencement of pro- ceedings at law, and should not be delayed until after a verdict or judgment has been obtained. Sto. Eq. Jur. sec. 806. 2 Md. Chancery Dec. 460. Where, in a bill of interpleader, some of the defendants are non-residents, and such non-residents fail to answer, the Court may order the answers filed by the other defendants, to be taken as the answers of such non-resident defendants, or may as to such defendants issue an ex parte commission to take testimony; Provided, notice of the substance and objects of the bill and answers be given, as in other 52 MARYLAND CHANCEEY PRACTICE. cases of non-residents. This to apply to one or more de- fendants. Code, Art. XVI, sec. 94. In cases where it is unknown whether such party be living or dead, the bill may be filed against him as if living, and in cases where the party is dead and it is unknown whether he left any heirs, or if the heirs be unknown, then the bill may describe such unknown heirs as the' heirs of the person who, if living, would be the proper party. — Art.' XVI, sec. 95. For Law of Interpleader, see chap, xx, Sto. Eq. Jur. ed. of 1866. SECTION III. TO PEEPETTJATE TESTIMONY: AND DE BENE ESSE. Bills to perpetuate testimony and to take testimony de bene esse, are filed to preserve testimony; the former are brought when no present suit can be maintained at law by the party seeking the aid of the Court to try his right ; the latter are brought only in aid of a suit already pend- ing. Sto. Eq. PI. sec. 307. Sto. Eq. Jur. sec. 1513, a,nd notes. The sole object of a bill to perpetuate testi- mony is to assist other Courts and to preserve evidence to prevent future litigation. In order to maintain such a bill it is necessary to state on its face all the material facts which are necessary to sustain the jurisdiction. It should state the subject matter about which the Plaintiff is desirous of perpetuating the evidence, and it should show that the plaintiff has some interest in the subject matter which may be endangered if the testimony in sup- port of it is lost, for unless he has some interest, he is not MAEYLAND CHANCEKY PEACTICE. 53 entitled to maintain the bill ; he must have a positive interest. It should also state that the defendant has or pretends to have title, or claims an interest in the subject matter of the proposed testimony. It must also show some ground of necessity for perpetuating the evidence. See Sto. Eq. Plead, sees. 300, 1, 2, 3, and the notes. The defendant may aver any facts going to show that there is no occasion to perpetuate tbe testimony, and may do tMs by way of plea. Sec. 306a. Ibid. The prayer of the bill should pray leave to examine witnesses touching the matter stated, to the end that their testimony may be preserved and perpetuated, it should also pray the proper process of subpoena. But it should not pray that the defendant may abide such order and decree as the Court shall think fit to make, for that will turn it into a bill of relief, which is inconsistent with the nature of a bill to perpetuate testimony. If the bill should pray relief it would be demurrable. Sec. 306. Ibid. COMMISSION TO PBRPBTTJATB TESTIMONY. A commission shall issue to perpetuate testimony, on a bill for that purpose, before any appearance of the party defendant, to such two persons, in the usual manner, as the Court may approve, and on return of said commission, if no good objection be made thereto in twelve months from the time of such return, the Court shall order the same to be recorded in perpetual memory. Art. XVI, sec. 140, Code. Should be verified by affidavit of the truth of the facts on which the application is founded. Alex. Ch. Prac. p. 15. 54 MAEYLAND CHANCERY PRACTICE. Mr. Alexander says that sucli bills are unknown in the practice of this State. P. 76. Art. XXXVII, title "Evidence," the Code provides fop taking the depositions of witnesses, who are sick and likely to die, or about to leave the State, and this is ap- plicable to causes in equity. Sec. 28, vide. Whether there is a pending suit, or not, the evidence of any witness may be taken as directed by section 21, page 278, of Code. For the use generally naade of bills to perpetuate testi- mony, and how far they can be made available, see Sto. Eq. Jur. sec. 1505 to 1513. If the bill is sustained, and the testimony taken, the suit terminates with the exami- nation, and is not brought to a hearing. But the decretal order, granting the commission directs, that the deposi- tions, when taken, shall remain to perpetuate the memory thereof, and to be used in case of the death of the wit- nesses or their inability to ti'avel, as there shall be occa- sion. Sec. 1512. In regard to bills de bene esse testimony, see Sto. Eq. Jur. sec. 1514 to 1517. These sections, with the notes, exhaust the subject ; and bills of this character are of so rare occurrence that it is not deemed important to do more than refer ihe young practitioner to this source, where information can be obtained. The system pre- vailing, by which commissions to take testimony can be sent to any place, at home or abroad, has rendered bills de bene esse almost if not entirely obsolete. MARYLAND OHANOERY PRACTICE. 55 SECTION IV. BILL OF REVIEW. The object of a bill of review is to procure an exami- nation and alteration or reversal of a decree made upon a former bill, which decree has been signed and enrolled. This enrollment of the decree is essential to what is called by way of pre-eminence, a bill of review; for if the decree has not been enrolled, then a bill in the nature of a bill of review, or a supplemental bill in the nature of a bill of review is the appropriate remedy. Sto. Eq. PL sees. 403, 790. In Maryland the doctrine of enrollment of decrees dif- fers from the English practice; here a decree is con- sidered enrolled when it is filed with the clerk, and the term has elapsed during which it was passed. 1 Q. &,Z. 426. 2 H. & J. 237. 1 Bland, 120. Alex. Oh. Prac. 121. 13 Peters, 6. Sto. Eq. PL page 321. No bill of review can be brought unless there be error in law [8 Peters, 128; 1 G. & J. 393,] appearing in the body of the decree, or some new matter has arisen after the decree ; but not on account of new evidence dis- covered which might have been used on the trial; yet upon the discovery of new evidence after the decree,- which could not have been used at the trial when the decree passed, a bill of review may be had by permission of the Court. Sto. Eq. PL p. 322, sec. 404. A bill of re- view must be filed within nine months after the date of the decree. 1 Md. Ch. Dec. 455. But an original bill to set aside the decree or order as having been obtained 56 MAEYLAND CHANCERY PRACTICE. by fraud, surprise or misrepresentation, can be filed within nine months after such discovery has been made by the party injured, by analogy to the time allowed for an appeal. 11 G. & J. 137. 2 Md. Ch. Dec. 501. INFANT. Provided, that in all decrees for specific performdnce of a contract against an infant such infant may at any time within six months after he arrives at full age have review of such decree, and if such infant d.ie3 under age his heir, or proper representative, may have a review of such decree either within six months after the death of such infant, or within six months after such heir or repre- sentative attains fiill age. Code, Art. XVI, sec. 72. 12 G. & J. 338. For privilege of review, allowed non-resident infant ; or person non-compos. Vide Code, Art. XVI. sec. 91, p. 89. See 1795, ch. 88, sec. 1. Article XVI. sec. 113, page 94. 4 H. KENTS AND PROFITS. Creditors, if necessary, in order to full payment, may subject to their claims, not only the lands of the deceased debtor, but also the rents and profits which have come to the hand of the heir since the death of the ancestor — Scott vs. Scott, 17 Md. 78 — and rents and profits of the real estate of the deceased, which accrued before a sale under decree at the suit of creditors, are responsible in equity for the payment of their debts. Warfield vs. Owens, 4 Gill, 364. The heirs receiving the same, (or any other, person,) will be responsible to the creditors, and made to account for the same, upon the principle that where the right is clear, and the law gives no remedy, equity will relieve. A receiver may be appointed, or tenants may be put under an occupation rent. Ibid. In a creditor's suit . the joaroZ shall not demur, and the infant heir or devisee may be made to account for rents and profits. 2 Bland, 209, 306, 509. 3 Bland, 28. 7 98 MAEYLAND CHANGEEY PRAOTIOE. MARSHALING ASSETS. Marshaling of assets is never naade ex officio, nor at the suit of the debtor, but only at the instance of one creditor against another; and the creditor calling for it must show that his co-creditor can sustain no loss thereby nor be in any way injuriously delayed, or have his claim subjected to any additional peril. 10 Md. 517. In a Court of law equitable assets have no legal entity, are of no value, not recognized by it, and of them no cog' nizance is taken. Cornish va. Wilson, 6 Gill, 299. Courts of Equity only, prior to the year 1831, could administer equitable assets. Ibid. Where a creditor has two funds, one of which is legal assets, and the other equitable, and the creditor is pursuing the legal assets, equity will not strip him of his legal rights, marshal the assets, and oblige him to seek payment out of the equita- ble assets. Ibid. The general rule is to apply, first, the personal estate, then, lands devised to be sold for the payment of debts, then, lands descended; lastly, lands specifically devised^ even although they are generally charged with the pay- ment of debts. Sto. Eq. Jur. sec. 577. 11 Gill & Johp. 185. Lands descended are to be applied to the payment of the debts of the deceased before lands specifically devised, 1 Md. Ch, Deo. 523. 5 Md. Rep. 471, Alexander t;s. Worthington. In case of deficieucy of assets to pay debts, all speoific have a priority of exemption over general legacies, and all specific legacies in this respect stand on an equal foot- ing, unless it appears that the testator intended otherAyise. 6 GilL 299. MARYLAND CHANCERY PRACTICE. 99 All debts and legacies are payable out of personal estate, and are only chargeable upon real estate by the will, either by its express terms or necessary implication from its language. 4 Md. Chan. Dec. 139. A charge on real estate for such payment is peculiarly the subject of eqtdtahle jurisdiction, and a Court of law can take no cognizance of it. Cornish vs. Wilson, 6 Gill, 299. Where land is dQ,vised charged with a legacy and the devisee accepts it, he becomes personally liable for the legacy whether the land devised be of less or greater value. 4 Md. Ch. Dec. 456. Where the same party is both specific devisee and leg- atee, and residuary devisee and legatee, a case for contri- bution and marshaling of assets to pay debts does not arise. 4 Md. Eep. 335. If a specific legacy, be taken for the payment of a simple contract debt, the legatee will be entitled . to con- tribution from other specific legacies, but he cannot charge with contribution, the real estate which is devised. 11 Md. 41. Real estate devised is not liable for the payment of debts until after the whole personal estate, including leg- acies, has been exhausted. Dugan vs. HoUins, 11 Md. 41. In regard to marshaling assets, vide 1 Leading Oases in Equity, page [top] 198 to 287. 1. A person having two funds to satisfy his demand, shall not, by his election, disappoint a party who has only one, p. 217. 2. Between creditors, p. 208, 218. 3. Between creditors and legatees, p. 210. 4. Paraphernalia, p. 214. 100 MAEYLAND CHANGEEY PKAOTIOE. 5. Assets not marshaled for a charity, p. 215. 6. Marshaling securities, p. 216. 7. Marshaling assets, -p. 217. 8. As between creditors of the same person, p. 218. 9. As between creditors of different persons, p. 222. 10. In favor of sureties, p. 226. 11. In favor of purchasers, p. 237. 12. In favor of legatees and devisees, p. 249. 13. As against creditors in default, p. 271. 14. Assets when marshaled by actual restraint or. by subrogation, p. 275. Maryland cases referred to — 1 Md. Ch. Dec. 420, 523. 4 Md. Oh. Dec. 139. 3 G. & J. 153. 4 G. d J. 296. 10 G. & J. 65, 143. 11 G. & J. 186, 204. 6 Gill, 299. 11 Md. 41. 7 Md. 117,564. llMd. 465. 8 Md. 405. The rule of Courts of Equity, in marshaling assets in the course of administration, is that every claimant upon the assets of a deceased person shall be satisfied, as far as such assets can, by any arrangement consistent with the nature of their respective claims, be applied in satisfaction thereof. Bto. Eq. Jur. sec. 561. 1 Md. Ch. Dec. 420. In the case of a mortgagee who exhausts the personal estate, or the vendor of real estate, whose unpaid purchase money is paid out of the personalty estate, the simple contract creditors will be allowed to stand in their places in regard to the real estate bound by their liens. Sees. 564, 565. Vide as to legatees, sees. 565, 566c. In paying the debts of a decedent, an administrator shall observe the following rules : All taxes due and in arrears from the decedent, shall be preferred to the exclusion of all other debts ; and claims for rent in arrears against deceased persons, for which a MARYLAND CHANCERY PRACTICE. distress might be levied by law, sball next have prefer- ence. Judgments and decrees shall next be wholly dis- charged. [But not the judgment of a Court of another State. 7 H. & J. 434.J After such claims * * * * all other just claims shall be on equal footing without pri- ority or preference. If there be not sufficient to discharge all such judgments and decrees, a proportionate dividend shall be made between the judgment and decree creditors. Code, Art. XCIII. see. 116, page 644; If the fund is distributed in a Court of Equity, the same order is observed, but where the proceeds of real estate are distributed, liens take preference in the order of priority as to date. Where a Court of Equity has control of both personal and real estate, it will, in order to prevent circuity of action, and to save expense and delay, apply them in the order in which, as between the heir and the executor, they are liable. 1 Md. Ch. Dec. 420. Marshaling of securities, vide Story Equity Jur. ch. XIII. SECTION X. QUIA TIMET. CoTTETS of Equity will, in many cases, interpose to decree a specific performance of express and even of implied contracts where no injury has as yet been sus- tained, but it is only apprehended from the peculiar rela- tions between the parties. This proceeding is commonly called a bill qvda timet. Story Equity Jur. sec. 730. 102 MAKYLAND CHANUEKY PKACTICE. Bills quia timet are in the nature of writs of preven- tion, to accomplish the ends of precautionary justice. They are ordinarily applied to prevent wrongs or antici- pated mischief, and not to redress them when done. The party seeks the aid of a Court of Equity, because he fears, [qma timet) some future injury. The relief is some- times given by the appointment of a receiver, or by an order to pay a pecuniary fund into Court, or by directing security to be given; sometimes by the issuing of an injunction, adapting the remedy to the particular circum- stances of the case. Story Equity Jur. sec. 826. This mode of relief is sought where there is a future right of enjoyment of personal property, and danger of loss or injury to it in the hands of the present holders. Sec. 845. Another mode is by interposing to prevent waste or destruction of property, perac^enie lite. Sec. 851. For the general doctrine and principles relating to Bills "Quia Timet," the reader is referred to chap. XXI. of Story Equity Jur. devoted to this subject. The ordinary form in which the Court of Chan(^ry. interposes its aid in cases of bills "quia timet" is by injunction and the appointment of a receiver. 2 Md. Ch. Dec. 157. For the application of Bills Quia Timet, see Fonb. Eq. ch. I, sec. 8, notis. CHAPTER VIII. MODES OF DEFENCE. The complainant having instituted his Suit, causes the process of the Court to be issued by the clerk, and served on the respondent by the sheriff, and in this man- ner procures the appearance of the respondent in Court, either in person or by his solicitor. The complaint or grievance for which relief is sought having been set forth in the bill, in due form, it now becomes' obligatory upoii the respondent to select a defence suitable to the charge preferred against him. He may file a dilatory plea, and thus avoid entering into the merits of the controversy. If this is not avail- able or advisable, lie will adopt one of several modes of defence. Before entering, therefore, upon these, as will be done in the succeeding chapters of this work, and the rules of law and practice applicable to each, it has been thought not out of place to set forth briefly an enumeration of the several modes of defence open to the respondent, and usual in Chancery proceedings, the judicious selection and application whereof taxes the highest skill and learning of the equity pleader. These matters may be more or less familiar to the older members of the bar, but may not be unprofitable to the juniors and to students seeking a knowledge of the intricate machinery of a suit in equity, for whom this 104 MAKYLAND OHANCEEY PRACTICE. work is chiefly designed.- The matter of this chapter is taken from Story Equity Pleadings. Sec. 433. We shall now proceed to the consideration of the general nature of the matters of defence to bills, which may be insisted on in Courts of Equity, and of the various modes in which those matters may or should be asserted. Sec. 434. The matters of defence which may be relied on in Courts of Equity are in their nature susceptible of two divisions, namely: (1.) Into those which are dilatory, ; which merely dismiss, or suspend, or obstruct the suit, without touching the merits, until the impediment or obstacle insisted on is removed; and, (2.) Into those which are peremptory, and permanent, and go to the entire merits of the suit. Dilatory defences may again be divided into four sorts ; first, to the jurisdiction of the Court, insisting that the bill is not preferred to the proper tribunal, which is authorized to entertain the case upon its merits; secondly, to the person, that the bill is pre- ferred by or against an improper person, not competent to maintain or defend it ; thirdly, to the form of proceedings, that the suit is irregularly brought, or defective in its appropriate allegations or parties; and, fourthly to the propriety of maintaining the suit itself, because of the pendency of another suit for the same controversy. . 1 Mont. Eq. PI. 88, 89. Sec. 435. Peremptory, or permanent defences, may be divided into two sorts ; first, those which insist that the plaintiff never had any right to institute the suit ; and, secondly, those which insist that the original right, if any, is extinguished or determined. Under the former head may be. included the following defences: (1.) That the plaintiff has not a superior right to the defendant; (2.) MAEYLAND CHANCERY PRACTICE. 105 That tte defendant has no interest; and, (3.) That there is no privity between the plaintiff and defendant, or any other right to sustain the suit. Under the latter head may be included the following defences: (1.) That the right is determined by the act of the parties; or, (2.) That it is determined by operation of law. 1 Mont. Eq. PI. 89. Sec. 436. In regard to the modes of defence, they are of four sorts. (1.) ]^y demurrer, by which the defendant demands the judgment of the Court, whether he shall be compelled to answer the bill or not. (2.) By plea, whereby he shows some cause why the suit should be dis- missedi or barred. (3.) By answer, which, controverting the case stated by the bill, confesses and avoids it ; or traverses and denies the material allegations in the bill ; or, admitting the case made by the bill, submits to the judgment of the Court upon it ; or relies upon a new case, or upon new matter stated in the answer, or upon both. (4.) By disclaimer, which seeks at once a termination of the suit, by the defendant's disclaiming all right and interest in the matter sought by the bill. Mitf. Eq. PI. by Jeremy, 13, 14, 106. Cooper Eq. PI. 108, 110, 223, 309, 312. Wyatt Pr. Reg. 11, 162, 175, S24. Ocean Ins. Co. vs. Fields, 2 Story R. 59. Sec. 437. It has been well remarked, in further illus- tration of these different modes of defence, that the form of making defence varies according to the foundation on which it is made, and the extent in which it submits to the judgment of the Court. Mitf. Eq. PL by Jeremy, 13, 14, 106, and authorities just cited. If it rests on the bill, and on the foundation of matter there apparent, demands the judgment of the Court, whether the suit shall proceed at all, it is termed a demurrer. Mitf. Eq. 106 MARYLAND CHANCERY PRACTICE. PL by Jeremy, 13, 14. Ocean Ins. Co. vs. Fields, 2 Story R. 59. If it rests on the foundation of new matter offered, it demands the judgment of the Court, whethef the defendant shall be compelled to answer further, it assumes a different form, and is termed a plea. Ibid. If it submits to answer generally the charges in the bill, demanding the • judgment of the Court on the whole case made on both sides,. it is offered in a shape still different, and is simply called an answer. Ibid. If the defendant disclaims all interest in the matters in question by the bill, his answer to the complaint made is again varied in form, and is termed a disclaimer. Mitf. Eq. PI. by Jer- emy, 13, 14. Ocean Ins. Co. vs. Fields, 2 Btory E. 59. All or any of 'these modes of defence may be joined, pro- vided each relates to a separate and distinct part of the bill. Mitf. Eq. PI. by Jeremy, 14, 106. Livingston vs. Story, 9 Peters R. 632. All writers on equity pleading agree that while the defence by "Answer" is the most usual, it is at the same time the most advisable course to pursue. If the respon- dent has a good defence to the bill, it puts on record the whole case of the respondent, and enables him to use all or any of his grounds of defence, and in a more acceptable form to the Court. Defence taken by way of plea or demurrer is always regarded with more or less of disfavor by the Court, and the party resorting to such modes of defence is held to a strict accountability, although it must be admitted that there are cases when such defences are eminently proper, for the purpose of saving expense and delay in the prose- cution of the cause. CHAPTER IX. DISCLAIMEK Is WHERE a defendant renounces all claim to the sub- ject of the demand made by the complainant's bill. It is distinct in substance from an answer, but can seldom be put in without an answer. The practice in this State in relation to disclaimers is the same as in England. It is put in under oath. And should be resorted to where it is admissible, as it dispenses with the necessity of further answer. An agent charged by a bill with personal fraud cannot avoid answering by disclaiming interest. A de- fendant may disclaim and answer ; or he may demur to one part of the bill, plead to another, answer to a third and disclaim to a fourth ; but these defences must clearly refer to separate and distinct parts of the bill. If the dis- claimer and answer are inconsistent, the matter will be taken most strongly against the defendant upon the dis- claimer. If the defendant disclaims generally, he is enti- tled to have the bill dismissed as against him, with costs. There are cases in which the complainant is entitled to a discoveiy, from a defendant having no direct interest in the subject matter of the suit. If a defendant puts in a disclaimer and afterwards discovers (before decree dismiss- ing the bill) that he has an interest which he was not apprised of at the time he disclaimed, the Court will, upon the ground of ignorance, or mistake, permit him to make his claim. He should bring the matter to the attention 108 MAEYLAND CHANCEKY PEAOTICE. of the Court by petition, stating fully the circumstances, , supported by affidavit. If the complainant disputes the fact set up by the defendant in his disclaimer of want of interest, he replies, otherwise not. The form of a dis- claimer is simply an assertion that the defendant disclaims all right and title to the matter in dfemand, with a prayer to be dismissed with costs. On this subject, see 1 Harri- son's Oh. p. 418. Ooop. PI. chap. 7. p. 309. Alex. Oh. Prac. p. 62. 6 O. & J. 152. It has been decided that a disclaimer of title to land made by a party after judgments against him cannot des- troy the liens of such judgments upon the legal rights he had in the land at the date of the judgments. 8 Md. 427. A disclaimer ought to be made in direct and express terms, so as to leave no doubt whatever as to the inten- tion. Bentley vs. Cowman, 6 G. & J. 152. CHAPTER X. DEMURKEK. The true test of Jurisdiction in Equity will, in all cases, be found in the determination of the question, whether a demurrer will lie to the bill or not. Tomlinson vs. Mc- Kaig, 5 Gill, 256. The term "demurrer" comes, as Lord Coke^ has said, from the Latin word, ^^demorari,'' to abide, and there- fore he that demurreth in law is said to abide in law — moratur or demmatwr in lege. He will go no further until the Court has decided, whether the other party has shown sufficient matter in point of law to maintain his suit. A demurrer may be to the whole bill or to a part only of the bill, and defendant may therefore demur as to part, plead as to another part, and answer as to the rest of the bill. 9 Peters, 632. 17 Pick. 132. Sto. Eq. PI. sec. 442. If a defendant demur and plead to the same matter his plea overrules his demurrer. 2 Bland, 254. 1 Bland, 206. Sto. Eq. Plead, sec. 442. Where several defendants demur, the demurrer may be ruled good as to one and be disallowed as to others. Sto. Eq. PI. sec. 445. Where lapse of time is a valid defence to the relief sought, and the defect appears on the face of the bill. 110 MARYLAND CHANCERY PRACTICE. it is demurrable. See note to 8to. Eq. PL to sec. 503, p. 434, ed. of 1865, and sec. 484. Whenever any ground of defence is apparent on the bill itself, either from the matter contained in it, or from the defect in its frame, or in the case made by it, the proper mode of defence is by demurrer. A demurrer can only be for objections on the face of the bill, either from matter inserted or omitted. Sto. Eq. Plead, chap. 9. A demurrer should be signed by counsel or by the party himself, no affidavit is necessary. If the com- plainant determines to try the case on the demurrer, it is set down for hearing on motion. If he concludes not. to do so, he may amend his bill, or take such other means as may be in his power to avoid the effect of the demurrer. The defendant likewise may withdraw his demurrer and plead to or answer the bill, as his interest may require. The defendant is not bound to assign special cause of demurrer, but by filing a general demurrer may show as many causes at the hearing as the proceedings may exhibit. If the demurrer is sustained by the Court, and the diffi- culty can be remedied by amendment, the Court will allow complainant to amend his bill ; if it cannot be re- moved by amendment, the bill will be dismissed. If the demurrer is overruled, the Code provides a pen- alty of ten dollars and costs to the other party. Sec. 102, p. 92. The party demurring in such case may appeal, or he may submit to the decision, and plead to the bill, or answer it. If a demurrer is not sustained, and defendant neither pleads nor answers, the Court will take so much of the bill as is well pleaded as is covered by the demur- MARYLAND OHANCERY PRACTICE. HI rer as admitted, and thereupon proceed to decree relief. Alex. Ch. Prac. p. 59. The want of an affidavit to a bill where one is neces- sary is ground for demurrer. Alex. Oh. Prac. p. 16. Multifariousness is properly taken advantage of by de- murrer. 2 G. & J. 14. 9 G. & J. 281. 10 G. & J. 481. Advantage of this defence may sometimes be taken at the hearing, at the discretion of the Court. 11 Md. 128. And where defendant omits to demur for multifarious- ness the Court may siut sponte take advantage of the ob- jection, and dismiss the bill. 14 Md. 299. 3 Howard's U. B. Eep. 333, 412. Where a demurrer has been overruled, unless the party demurring appeals, he is compelled to plead or answer; while it is his privilege to do so, as stated, it is no less his duty, which can be enforced. When there is a full and complete remedy at law, and no ground for equitable relief in the bill, the objection is good on- demurrer. Drury vs. Conner, 1 H. & G, 221. Where a party fails to demur for multifariousness, answers the bill and goes into the merits, it is a waiver on his part of the objection. Gibbs vs. Clagett, 2 G. & J. 14. A demurrer is founded exclusively upon the matter apparent upon the face of the bill, and admits the truth of the plaintiff's whole case, and only denies that he is in equity entitled to relief even supposing all the facts stated by him to be true. Carroll vs. Waring, 3 G. & J. 491, per Bland, Chan. As before stated, multifarious- ness ought to be taken advantage of by demurrer, and it is no excuse for not having presented the objection in that form that the defendant had not appeared in Court at the 112 MARYLAND CHANCERY PRACTICE. proper time after having been summoned. Grove vs. Fresh, 9 G. & J. 280. Gibbs vs. Clagett, 2 G. & J. 14. Luck«tt vs. White, 10 G. & J. 480. See vide 11 Md. 128. 14 Md. 299. 23 Md. 170. Filing an answer and going into an examination of the testimony on the merits, is a waiver of the objection. 2 G. & J. 14. 5 How. U. S. 127. 3 How. U. S. 333. Multifariousness — defence taken by demurrer. — The Court said: "There is no gener£tl and inflexible rule as to what, in the sense of equity, constitutes 'multifarious- ness.' " White vs. Curtis, 2 Gray, 467. And the Court, in deciding such cases, will be mainly governed by con- siderations of convenience, in particular circumstances, avoiding on the one hand unnecessary litigation, and on the other needless and oppressive expenses. Dunn vs. Cooper, 3 Md. Ch. Dec. 46. And the objection is dis- couraged where it might defeat the ends of justice. Mar- shall vs. Meanes, 12 Georgia, 61. But the general principle is, that the bill should not combine distinct claims against the same defendant, nor unite in the same suit several defendants, some of whom have no connec- tion with a great portion of the case. Adams Equity, 310, (margin.) Justh vs. Hillen, 1866, f. 206. Opinion filed 26 June, 1866, by Alexander, J. in Cir. Ct. Bait. City. It is said that demurrers are viewed with disfavor and suspicion, as indicative of an unwillingness fairly to meet the case of the plaintiff on its merits. 2 Md. Ch. Dec. 14. Where a demurrer goes to the sufficiency of a plea, as a whole, and it appears that one of the several essential MARYLAND CHANCERY PRACTICE. 113 grounds of demurrer is insufficient, the demurrer cannot be sustained. 22 Md. 336, State vs. Hall. Where an agent of a firm, against whom no decree can be obtained upon the allegations of the bill, is made a defendant with th^ members of the same, he may demur to the bUl as multifarious. White vs. White, 5 GiU, 359. Where a case comes before the Court on demurrer, all the averments of the bill are to be considered as true. 2 Md. 174. 4 Md. 72. 8 Gill, 169. Allowing a demurrer to the whole bill in strictness puts it out of Court, and no subsequent proceedings can be taken in the cause; yet the Court sometimes permits an amendment of the bill to be made. 1 Md. Ch. Dec. 95. Though parties have a right to demur, the defence is viewed with disfavor. 2 Md. Oh. Dec. 12. The proper mode of objecting to the uniting of parties as plaintiffs in the same bill, who have conflicting inter- ests, is by demurrer. EUicott vs. EUicott, 2 Md. Chan. Dec. 468. A demurrer to a bill for partition of lands, because it does not conform to the act of descents, will be sustained, hut the bill wiU not therefore be dismissed, because the defect may be cured by amendment. 3 Md. Ch. Dec. 91. Upon a bill by a partner for an account of the part- nership affairs, a party not a partner in the firm can- not be called on to account in the capacity of a partner, and he may demur to the bill making him a party. 4 Md. Ch. Dec. 418, White vs. White. A demurrer may be filed because of a misjoinder of complainants. 4 Paige, 510. A demurrer to a replication brings before the Court the sufficiency of the plea; the effect of a demurrer being to 8 114 MARYLAND CHANCERY PRACTICE. bring before the Court all the pleadings and to mount up to the first error. 18 Md. 418. Objection for want of jurisdiction may be taken at the hearing, although not presented by plea or demurrer ; or the Court may take the objection siux, sponte. 3 Md. Ch. Dec. 140. The right to plead over, where the demurrer is over- ruled, without withdrawing it, only applies to cases at common law. 1867, ch. 388, which adds sec. 22 to the Code, Art. LXXV. If it appears on the face of the bill that the matter in dispute, exdusive of cosfe, does not exceed the amount to which the jurisdiction of the Court is limited, the defen-' dant may either demur or move to have the bill dismissed with costs; or if it does not appear on the face of the bill, it may be pleaded in bar of the suit. 3 Paige, 505. 4 Paige, 364. 5 Paige, 245. 7 Paige, 62. By "exclusive of costs" is meant the costs of the suit in chancery. 1 Edw. Ch. 583, Van Tyne vs. Bunce. For mode of putting in a demurrer as to part, and answer as to the residue, see 12 G. & J. 374, Gardner et al. vs. Hardey et al. CHAPTER XI. OF PLEAS. A PLEA is defined to be a special answer, showing and relying on something in a cause why the suit should be either dismissed, delayed or barred; and the defence proper for a plea should reduce the cause to a single point and create a bar to the suit. The object of the plea is to save the expense and delay of the further progress of the suit. A party is at liberty to file as many pleas as the nature of his defences admit; each plea, however, setting up only one distinct ground of defence. Like a demurrer, the plea may be to the whole bill, or to only a part of it. In the latter case it is accompanied by an answer to the parts not covered by the plea. Where an answer is necessary to support a plea, it must be full and clear, for the Court will intend the matters so charged against the pleader, unless they are fully and clearly denied ; yet if it is in substance answered it will be sufficient to support the plea. The cases in which an answer is required by way of discovery, to accompany the plea, are: (1.) Where the plaintifi" admits by his bill the existence of a legal bar, but charges some equitable circumstances to avoid its eflPect ; (2.) Where the plaintifi" does not admit the exist- ence of any legal bar, but charges some circumstances which may be true, and to which there may be a valid 116 MARYLAND CHANCERY PRACTICE. ground of plea, and also charges other circumstances inconsistent with the substantial validity of the plea. The first case is illustrated by the common case of a release, charged in the bill as having been obtained by fraud, the circumstances whereof are specially charged. Here the plea must rely on the release and deny the fraud, and the answer must make discovery and explain or deny the circumstances charged as proof of the fraud. The second case is illustrated by a bill for an account of partnership transactions. If the defendant pleads that he is not a partner, it must be accompanied by an answer and a discovery of the circumstances charged as evidence of such partnership. Vide Sto. Eq. PL sec. 674, 5, and notes. As to the averments in the plea, they ought to be positive ; but in some cases the defendant is permitted to aver according to the best of his knowledge and belief; as that an account is just and true ; and in cases of negative averments; and of facts not within his immediate know-" ledge. 1 Paige, 511. A plea must be signed by counsel or by the party him- self. And when it relies on matter in pais in bar it must be on oath. But pleas to the jurisdiction of the Court, or in disability of the person of the complainant, or in bar, of any matter of record, need not be upon oath. All other pleas, including pleas in disability of the person of the defendant, ought to be supported by the oath of the party that the matters contained in the plea are true to the best of his knowledge and belief. Bee Mitf. PL 301. OooperPL232. Story 's PL 541 . .3G. &J.491. Alex. Oh. Prac. 283. If a plea is not verified by the oath of the defendant, the complainant may apply for an order to set it aside, or MARYLAND CHANCERY PRACTICE. 11 rr to have it taken off the files of the Court, but he cannot make th® objection at the hearing upon the argument of the plea. 3 Paige, 566. 43 If. Hamp. 251. 1 New- land Ch. Prac. 117. A plea of the statute of limitations need not be upon oath unless there is some special matter in the bill charged to avoid the act, and which requires a denial by the plea. When a plea- is put in by defendant, the complainant must either deny the facts alleged in the plea, by filing a replication, or he must deny the law contained in the plea by demurrer. For by setting it down for hearing, and taking issue on the facts, he admits the plea to be suffi- cient in law, if the facts are proven. 1 Harrison's Ch. 389, 385. 6 Wheaton, 453. 5 Cond. 136. If the plaintiff, reply ,^ he thereby makes as full an admission of its validity in law as if it had been allowed upon gjgument; so that if the defendant at the hearing proves his plea to be true, the- bill must be dismissed. 1 G. & J. 311. 2 Paige, 345. 1 Wash. 0. C. 320. 6 Paige, 139. Cooper PI. Chan. 232. Or if he moves to amend his bill, he thereby admits the plea to be good in law. 7 H. & J. 197. 1 G. & J. 228. 2 G. & J. 1. 14 Peters, 210. Alex. Ch. Prac. 60. When a plea contains several allegations of fact, all must be proved, or the plea will be overruled. 6 Paige, 139. The plea upon hearing may be allowed by the Court ; or it may be disallowed and overruled, or it may stand for an answer, or the benefit thereof may be saved until the hearing ; that is, the Court, without deciding the ques- tion raised by the plea, may require the party to answer, and reserve the whole question of law and fact, until the final bearing. But the question arises, if the defendant 118 MAEYLAND CHANCERY PRAOTICi:. may not insist on his plea, and refuse to answer; if he adopts this course, he would be driven to an appeal — for he could not be compelled by attachment to answer until his plea was disposed of. If the facts of the plea are denied, and an issue of fact is presented, the defendant is obliged to support his plea by evidence; if he fails in making out his defence, his plea is overruled, and he is required to answer ; and may be compelled to do so, or in a proper case, the Court might pass a final decree against him, from which his remedy would be by appeal* If his plea is adjudged good, the bill is dismissed, unless the difficulty can be removed by amendment. If the plea is overruled, the defendant pays to the com- plainant his costs, and a penalty of ten dollars, [Code, Art. XVI. sec. 102, p. 92 ; Alex. Oh. Prac. 60,] or if it is withdrawn without leave of the Court. Ihid. If the plea is allowed, the defendant recovers his taxed costs. A plea may be bad in part and not in the whole, and the Court will allow it, to do so much of the bill as it is properly applicable — that is as to the quantity of the bill cqvered by it. When an answer accompanies a plea in order to support it, it is prefaced with an averment that the respondent does not thereby waive his plea. . Pleas, like other pleadings, may be amended before final decree on payment of costs, in the discretion af the Court* Code, p. 73, sec. 16. In regard to the general nature and form of a plea, vide chap. 5, Cooper's Pleading in Chancery. Sto. Eq. Plead, chap. XIII. No exception can be taken to an answer while a plea is depending, for that must first be removed out of the MARYLAND CHANCERY PRACTICE. 119 way. After a plea is put in, there can be no motion for an injunction till the plea is argued and disposed of. 1 Harrison's Ch. 387. A defendant cannot in his plea rest upon facts of the complainant's own showing, for that would be rather to demur than plead to the bill, but he ought to aver facts to which the plaintiff may reply. Idem. The only effect of an order to save the benefit of the plea until the heajing is to save costs to the defendant; 1 Harrison's Chancery', 387 ; as the costs usually follow the final decree. A defendant is bound to support his plea, by an answer as to circumstances, stated in the bill, which if admitted to be true, would be evidence to counter-prove the plea. 4 Paige, 178. See Sto.'Eq. PL sec. 674. The obligor in an injunction bond cannot, in a suit upon the bond plead that he did not obtain the injunc- tion. Lloyd vs: Burgess, 4 Gill, 187. The defence of usury must be pleaded or relied upon in the answer; and it will not do to state circumstances which may lead the opposite party to infer that he is to meet that defence. Pleadings in chancery should consist of averments or allegations of facts and not of inference and argument. 2 Md. Ch. Dec. 510, McKim vs. The White Hall Co. Where process is served on a privileged person, the privilege must be claimed by plea or motion, in the par- ticular case, made at the proper time. 13 Md. 58. A plea that the plaintiff is an infant is a plea in abate- ment, and must be verified by af&davit. 5 Gill, 215. 120 MAEYLAND CHANCERY PKACTICE; Tkere are three sorts of pleas in Equity which may be pleaded to bills praying relief. I. Pleas to the Jurisdiction. II. Pleas to the Person. III. Pleas in Bar. If the Court of Equity has not jurisdiction over the subject matter of the suit, the defendant may plead the matter which deprives the Court of jurisdiction, and" show to what Court the jurisdiction belongs. But if not pre- sented by plea or demurrer the objection may, neverthe- less be taken at the hearing. 3 Md. Ch. Dec. 140. 24 Md. 338. 4 Md. Ch. Dec. 326. A demurrer is in bar, and goes to the merits of the case, whereas a plea to the jurisdiction, only avers that this Court has not jurisdiction, it is likewise necessary to show what court has jurisdiction. 1 Ves. 204. 1 Ves. Jr. 371. 1 Dick. 129. Cooper PL 240. It would be a good plea to the jurisdiction that the defendant was improperly sued out of the County of his. residence. See Code. After a plea to the jurisdiction, or in abatement, has been overruled, the defendant may plead in bar. If it appears on the face of a supplemental bill that all the matters alleged, arose before the commencement of the suit, and might have been inserted in the original bill by way of amendment, the defendant may demur; but if this irregularity does not appear on the face of the sup- plemental bill the facts may be brought before the Court by plea. 1 Paige, 200. Infancy of the plaintiff is a good plea in abatement if he sues alone. 5 Gill, 215. MARYLAND CHANCERY PRACTICE. 121 Coverture of the plaintiff likewise, if she sues without her husband, or a procJiein-ami. Coverture of the defend- ant if sued without her husband, may be pleaded in abate- ment. Bankruptcy of the plaintiff has been also held a good plea where the debt was contracted before the petition filed. Want of intereist, in the defendant, may also be pleaded ; though a disclaimer is the most advisable course. A plea to the person is a traverse of the right, appear- ing on the bill ; as that the plaintiff has never adminis- tered as he avers ; but you never traverse in a plea in bar. Cooper PI. 250. A PLEA IN BAR Is collateral to the bill ; it avoids the bill by matter de- hots the bill. A plea in bar denies the defendant's lia- bility, altogether ; while the plea in abatement, in general, supposes a right to proceed against the defendant in some other form, or at some other time. 2 Har. & Gill, 133. A EELEASB May be pleaded in bar if the complainant, or the persoii under whom he claims, has released the subject of his demand. And if fraud, surprise, or any .other objection to the release is charged in the bill, the plea must meet those charges by averments in the body of it, and must also be supported by an answer denying them. 6 Vesey, 586. 3 P. Wms. 315. 1 Har. Ch. 361. Daniel's Ch. Prae. p. 693, ed. of 1865. 122 MARYLAND CHANCERY PRACTICE. A STATED AOOOUMT May be pleaded in bar to a bill for an account. 1 Sto. Eq. PL sec. 497. Sto. Eq. Jur. sec. 1524. But the plea must aver tbat it was a final settlement ; even a receipt in full will be no bar to a bill for an account if there are suspicious circumstances, or fraud appearing in the case ; the payment of a less sum than the claim without a release is no satisfaction of the claim. 4 G. & J. 305. 15 Md. 569. Mistakes will be open to investigation and rectified, but jfraud or errors must be specified in the bill and sup- ported by evidence. Cooper PL 278. And where fraud has appeared in a "stated account," it has been opened after a considerable lapse: of time. 2 Atk. 113, 119. In the frame of a plea of a "stated account" to a bill charging error or fraud it is necessary to meet those alle- gations by averments in the body of the plea, and also to support the plea by an answer denying them. Gilb. on Oh. 56. 6 Vesey, 595. And if neither error nor fraud is charged the defendant must, by the plea, aver -that the "stated account" is just and true to the best of his know- ledge and belief. 3 Atk. 70. 1 Harrison's Oh. 360, 388. AF AWAED May be pleaded in bar to a bill for an account. 2 Atk. 395, 501. See 4 Md. 517. 8 Md. 213. If the bill impeaches the award for fraud or misrepresen.- tatioti, the charge must be denied in the plea. Cooper PL 286. The plea of an award is good to the discovery as well as to the merits. Har. Ch. 360. MAEYLAND CHANCERY PRACTICE. 123 THAT THE DEFENDANT IS A PUBGHASBE FOE A VALU- ABLE CONSIDERATION WITHOUT NOTICE Is sometimes a good plea, in bar. [Sto. Eq. Jur. sec. 1525. J It requires an answer, on oath, in support of the plea. In a note on page 288, Mr. Alexander says : ',' It is not indispensable that the defendant should deny no-- tice of any incumbrance on the premises, the true issue is had he. notice of the incfu/mhrance set up hy the complain- ant. The purchaser of a leasehold, or of any other in- terest less than the fee-simple, may protect himself by this plea. It is not important that the deed should con- tain a covenant that the premises are free from incum- brance. It is not necessary to deny notice subsequent to the conveyance executed and payment of the purchase money." The present writer- begs to suggest, that notice "before the payment of the purchase money" would be in time, and that the plea would not avail in such a case. And where part of the purchase money remained unpaid, it ought to be withheld, for as to such part he would pay with notice, (whatever is sufficient to put a party upon enquiry is good notice in equity. 10 Gr. (feJ.317. 11 G. & J. 217.) The plea must aver the actual payment of the purchase money, the averment that it was secured to be paid is in- sufficient. 3 Atk. 304. " Without notice " refers to con- structive as well as actual notice ; for where the law im- putes notice, it is the same as if the party had actual notice. Before the whole purchase money was paid and conveyance received must be denied. 7 Monroe, 599. 1 John. Oh. 298, 303, 575. 7 John. Ch. 65. 10 Yer- ger, 385. 11 Paige, 454. 124 MARYLAND CHANOEKY ■ PEAOTIOE. That his vendor was seized and in possession of the premises is indispensably necessary to this plea. 3 Md. Ch. Dec. 488, Ringgold vs. Bryan. Protestations are of no use ; they avail nothing, and are generally omitted. WANT OF PKOPBR PARTIES Is a good plea in bar, [Sto. Eq. Jur. sec. 1526,j but as a bill is never dismissed (in the first instance) for want of parties, but stands over with liberty to the com:plainan.t to amend, the Court either before or after allowing the plea, would grant leave to amend if the complainant so desired. Sto. Eq. Jur. sec. 1526. THE STATUTE OF FRAUDS Can be availed of as a plea as well as in the answer. If the bill charges fraud, part performance, or any other cir- cumstance to avoid the operation of the statute^ it will be necessary to negative- such charges in the plea, and also by an answer in support of the plea: it must be under oath. In order to avail of this defence the statute must be pleaded or set up in the answer. 2 Md. Oh. Dec. 169. 5 Md. 66. A Court of Equity will, upon proof of fraud, mistake or surprise, rectify and reform the written agreements of par- ties, and consider an absolute deed as a mortgage, and the statute of frauds is no defence to such an equity. 10 Md. 217. In the absence of allegation of "fraud, accident or mistake," the same general rule prevails in equity as at law, as to the admiasibility of parol evidence to vary or contradict a writt&n contract. Timms & wife vs. Shan- non, 19 Md. 296. MARYLAND CHANCERY PRACTICE. 125 A FORMEE SUIT DEPENDING. The usual course is not to argue the plea, but for the Court to examine and ascertain the truth of the plea. If the complainant seia down the plea for argument, he thereby admits the truth of the plea, and the Court must allow it. As it depends on matter of record, it need not be upon oath. The pendency of a suit at common law for the same matter cannot be pleaded in bar to the suit in equity ; but the proper course is, after answer, to apply to the Court to require the complainant to make his election. The case of a mortgage is an (apparent) exception to this rule, for the complainant can file his bill, bring ejectment for the land, and sue at common law for the debt, all at the same time. To avail, this plea must aver that the suit is pending in the same or another Court of Equity, for the same cause of action, that the defendant has appeared to the former suit, or that he has been served with process to appear. . Whether a suit pending in another State would be suf- ficient? Quere? Where a subject matter of controversy is already in possession of a Court of competent jurisdiction, public policy and judicial comity require that its action should not be interfered with by any other Court of concurrent jurisdic- tion. And, although it may have formerly been the prac- tice that the question of jurisdiction could only be raised by plea, it is now clear that such defence may be taken by answer, and as soon as the Court is judicially informed 126 MARYLAND OHANOERY PRACTICE. of the prior suit, it will dismiss the subsequent proceed- ings. Withers vs. Denmead, 22 Md. 146. Note. — The pendency of another suit must be pleaded in abatement, 7 Gill, 426, but a suit afterwards com- menced cannot be pleaded in the first suit. Ibid. Jurisdiction once rightfully asserted by a Court of Equity, and which would lead to a settlement of all ques- tions which might arise out of the subject matter in con- troversy, will exclude all jurisdiction over it by other Courts for similar purposes. 4 Md. Ch. Dec. 87. 8 Md. 254. A FORMER. RECOVERY. This, like the former plea, depends upon matter of re- cord, and if denied by the complainant, the plea would have to be sustained by offering evidence, the original record, or a certified copy, as the case might require ; the Court would inspect the record and determine the ques- tion from such actual inspection. Sto. Eq. Jur. sec. 1523. The defence involved in this' plea is that the matter has been already decided. A decree of any Court of Equity being in its nature Jincd, may be pleaded in bar of a new suit between the same parties involving the same subject matter. If the bill is for the purpose of impeaching the decree in the first suit for fraud, that involves different conside- rations, and is a fit subject for enquiry ; the complainant may show that it was obtained by collusion, or otherwise impeach it. In such case, the plea setting up the decree or " the former recovery," must be supported by an answer denying upon oath all such fi-aud and collusion. A formar recovery is a plea in bar. 7 Gill, 426. MARYLAND CHANCERY PKACTICE. 12'; PLEA OF TEIIDBE. The same strictness with regard to this plea does not prevail in equity as at law. To entitle a purchaser to demand a deed, it is sufficient that he is ready and offers to comply with the contract on his part, and has the ability to perform it. 19 Md. 410. As this defence is much more available in an answer . than by way of plea, it is not deemed advisable to enlarge upon it here. STATUTE OF LIMITATIONS. Where the plea relies solely on the statute it may be put in without oath ; but if the bill contains any special averments to avoid the effect of the act, which require a denial by the plea, then it must be sustained by an answer, and the plea and answer verified by affidavit. Where the plea requires an answer to support it, the plea should not cover the whole bill, but only so much as does not relate to the discovery sought, and to which the com- plainant is entitled to have an answer. See chapter of this book — "Zmiitations of Actums." USURY May be set up by way of plea, or it may be relied on in the answer. 2 Md. Ch. Dec. 519. 1 H. & G. 320. 4 G. & J. 420. See chapter of this book on the subject of "Usury." 128 MARYLAND CHANCERY PRACTICE. PAYMENT. A good plea in bar, but even where the party has given a receipt in full it is open to enquiry, and correction, if there is error. 2 Lfoson, 541. 8 Gill, 179. 4 G, & J. 305. 7 Md. 108. 8 Md, 107. 18 Md, 140. eS!T-OFF Is a good plea in bar, and is equally as available* in equity, as at law. 16 Md. 352, Lane vs. Fallen. See the chap, in Story Eq. Jur. "Set-of," for this doctrine, and when, and how far available in Courts of Equity. See also 3d vol. Lejad. Casj in Eq. [top] pages 185, 186. Code, Art. LXXV. sec. 13. CHAPTER XII. THE ANSWER. The answer holds an important place in an equity- cause — ^it is the mode of defence generally adopted, and has decided advantages over every other. Much depends, therefore, upon the skill and judgment exercised in the framing of it. As the bill is the charter wherein ar% embodied the rights, grievances, and the limitations of the complainant's case, so does the answer in like manner embody the case on the part of the respondent. In equity, as at common law, the parties to a cause recover and defend, accordihg to the evidence applicable to the plead- ings. The probata and allegata must agree. It is manifest that great circumspection should be used in stating the facts relied on for defence in the original answer filed, for where a respondent has once committed himself, although he may, by amendment, add to or explain the answer put- in, yet the original statements remain of record, and any variance from these is always viewed with suspicion and received with disfavor. The Court does not allow any amendment or alteration of the answer filed, (1 Md. 323) the practice is, where the exigency requires it, to apply by petition, asking of the Court leave to file a supplemental answer. This is granted almost as matter of course, on aflidavit stating the circumstances and occasion for the amendment. The supplemental answer being filed, both answers remain in 9 130 MARYLAND CHANCERY PRACTICE. the cause, and are treated as one, liable, however, to such criticism at the hearing as naay be proper. Alex. Ch. Prac. 62. 6 H. & J. 311. 7 G. & J. 369. 1 Bland, 150. The language of the Code on the subject of amend- ment is more forcible than the former Act of Assembly, which gave the Court authority to allow an amendment of the pleadings. The Code enacts, that the party shall have the right to amend, so as to bring the merits of the controversy fairly to trial. Code, sec. 16, Art. XVI. p. 73. It is held, however, that the Court is to exercise its discretion in the allowance of amendments, and being a matter, of discretion, and not matter of legal right in the party making the application, from the decision of the Court there is no appeal. It is fin'al and decisive. 6 Md. 506. lOMd. 39. 18 Md. 73. The propriety of allowing a supplemental answer to be filed depends upon its avowed objects and purposes as stated in the petition for leave to file it, and not upon other matters contained in the answer itself and not referred to in the petition.. Calvert v&. Carter, 18 Md. 73. The leave to file depends upon the discretion of the Court. Id. The answer should be so drawn as to contain direct averments; the facts must not bfe stated hypothetically, or in the form of argument. See Sto. Eq. PL sec. 862. An answer is in no sense an argument. It should confine itself to the facts, and bp responsive to the bill, including facts in avoidance, if there be any, and these latter should be set forth with equal ' clearness and by positive aver- ments. 4 G. & J. 420. The test of the responsive character of the answer is by ascertaining whether the questions answered would be proper to propound to a witness in a trial at law ; whether MARYLAND CHANCERY PRACTICE. 131 they would be relevant to the complaint, and such as the witness would be bound to answer; and whether the answers would be competent testimony against the inter- rogating party. Dunham vs. Yates, 1 HofFm. Oh. Rep. 185. 3 Greenl. Ev. sec. 285. In the answer of a representative, such as an executor or administrator, the facts if not within the personal knowledge of the respondent, are alleged to be upon infor- mation and belief, «,nd therefore it does not come within the general rule of requiring to be contradicted by two witnesses or one with pregnant circumstances. See 2 Gr. & J. 215. 1 Bland, 199. Alex. Oh. Prac. 116. The answer may be joint or several; that is, the defendants, if more than orte, may unite in their answer or each may answer for himself. It is required to respond fully and fairly (not evasively) to the allegations of the bill, or it will be liable to excep- tion on the part of the complainant. If the complainant fails to except, and puts in his replication, he thereby waives the objection. The Oourt, however, will be gov- erned more or less in the ci'edit given to the statements of the answer, by the fair and candid manner in which the defendant answers. The Oourt of Appeals have said that when an answer has been ruled insuiEcient upon excep- tions, it is to be regarded as. no answer at all. 9 G. & J. 475, Richter vs. Pue. The Oode provides that in deciding on exceptions to answers, the Oourt may award the costs of the excep- tions and. of the order thereon, to the party prevailing, including a fee (the usual solicitor's fee of $10) to the solicitor. Oode, Art. XVI. sec. 114, p. 94. It is in such cases usual for the respondent to apply for and obtain leave to answer further, which means that he 132 MARYLAND CHANCEEY PRACTICE. is to supply in the supplemental or amended answer the deficiencies of the former one; and when put in, they both together constitute the "Answer" of respondent. Matters in avoidance in an answer must be fully proven, (if complainant files a replication,) in order to avail at the hearing. 10 Gill & Johns., Gibson vs. McCormick. It is not sufficient that the answer contains a general denial of the matters charged in the bill ; there must be a specific answer to the sifting enquiries upon the general subject. , It should- be certain in its allegations, so far as cer- tainty is practicable, to so much of the bill as it is proper and material for the defendant to answer. He must speak directly and' without evasion, and he must not merely answer the several charges literally, but he must confess or traverse the substance of each charge. 3 Bland, 392. Sto. Eq. PL sec. 852, p. 653. 1 Gill & Johns. 503. Where a fact alleged in the bill is one within the defendant's own knowledge, he must answer positively. 6 Wallace tJ. S. Rep. 268. The omission to answer any fact, however, is not to be taken as an admission of such fact. 1 G. & J. 503. If the complainant wants the fact answered he must except or he must prove it by evidence, in order to avail of it on the trial. 2 H. & J. 301. A defendant must answer fully, and may be forced by exception until he does. 22 Md. 544. An explicit denial in an answer prevails unless over- come by two witnesses, or one with pregnant circum- stances. Id. 545. Sto. Eq. Jur. sec. 1528. 24 Md. 55, Turner vs. Knell. MARYLAND CHANCERY PRACTICE. 133 On the motion to dissolve an injunction, every fact charged in the bill is taken to be true, unless denied by the answer — 6 Cranch, 51 — 2 Oond. 300, S. 0. — at the same time the responsive statements of the answer must be credited anjl taken as true — 4 Md. Ch. 339, 394 — unless there is evidence in the cause regularly taken, proving the allegations of the bill. 12 Peters, 178, 190. The defendant is allowed time to answer until the fourth day of the term next succeeding his appearance, and under special circumstances, on" application to the Court, the time may be enlarged. Alex. Chan. Prac. 57. See Rule 8, Circuit Court Baltimore City. If the plaintiff has in his possession deeds or papers which are necessary for the defendant in preparing his answer, the Court (on petition) will require the plaintiff to produce them, or give the defendant copies, and will enlarge the time for answering until some reasonable time after the delivery of the originals or copies. The Court will also enlarge the time for answering a cross-bill until ■the answer to the original bill is filed. Alex. Ch. Prac. 57, 111. If the respondent fails to answer at the proper time, he may be (compelled to do so Jay attachment; or perhaps the complainant may take a decree jyTO confesso against him. A defendant is not bound to answer matters purely scandalous, or impertinent, or immaterial, or irrelevant, nor is he bound to answer anything which may subject him to a penalty, forfeiture or punishment. 2 H. cfe J. 487. 7 Md. 416. Nor is he bound to answer anything that would involve a breach of professional confidence, and he is permitted to 134 MARYLAND CHANCERY PRACTICE. insert in his answer that he is not bound to respond to the objectionable matter, and thus the question is pre- sented to the Court for adjudication. Sto. Eq. PI. p. 646, sec. 846. In the English books it is alleged that a respondent is not bound to answer or to ^sclose matters respecting his own titles, but such is not the law or prac- tice of this "State. Our registry l^ws rarely make such disclosures needful, as a man's title appears by the records. 8ed vide 1 Md. Oh. Dec. 95. An answer should not contain matter scandalous or impertinent: nothing, however, which is relevant to the issue, can be deemed scandalous, unless set forth in an improper manner. Matters wholly irrelevant, unneces- sary digressions, useless recitals and such like are imper- tinent.- Sto. Eq. PI. sees. 862, 3. "3 Bland, 392. Vide chap. VI. of this book. The Oourt of Appeals say that, the best test of what are properly averments of fact in a bill, or answer, is whether they are such matters as a witness may be called on to prove; or the truth of which must be established by evidence to enable a Oourt to act; if they are not, then such averments are mere principles of equity, or some of those public and established facts of which the Court is bound to take judicial notice without any proof; and further, that a defendant may in general insist on any matter by way of answer which he may take advantage of by plea or demurrer. 4 G. & J. 1, and per Chan. Bland. Idem. If a party replies to an answer he thereby waives im- pertinence, and cannot afterwards except, for this cause. Exception to impertinence in the bill must be taken before answer. MARYLAND CHANCERY PRACTICE. 135 It has been customary to commence the answer by re- serving all exception to the insufficiencies and inaccura- cies of the biU, but such statements are wholly unneces- sary and useless. The answer of one defendant cannot in general be used as evidence against a co-defendant, nor the answer of an agent against his principal. 9 Oranch, 153. 3 Cond. 346. 4 Cond. 170. 5 Cond. 741. 2 H. & J. 474. 4 H. & J. 518. 3 Gk & J. 510. 8 G. & J. 136. But the answer of one defendant is evidence against other defendants who claim through him, because in fact represented by him. 2 Cond. 285. 5 Cond. 741. Vide 3 Gr. Ev. sec. 283. The chancery rule formerly was that a defendant must answer upon oath or affirmation, but the Code has in- troduced an entirely new rule: it provides that it shall not be necessary for any defendant to make oath to his answer unless required by the complainant. "It shall not be necessary for any defendant to make oath to his answer unless required by the complainant, nor shall any answer, whether sworn to or not, be evi- dence against the complainant at the hearing of the cause, unless the complainant shall read such answer as evidence against the defendant making the same ; but this section shall not apply to motions to dissolve an injunction or to discharge a receiver." Code, Art. XVI. sec. 103, p. 92. 10 Md. 39, 104. 11 Md. 144. 16 Md. 69, 144. 17 Md. 433. 18 Md. 194. 20 Md. 165. The forin of affidavit generally adopted is that the mat- ters stated in the answer are true to the best of defend- ant's knowledge and belief. The defendant may swear to the answer before any justice of the peace ; whose certificate is sufficient without 136 MAEYLAND CHANCEEY PEAOTIOE. further authentication. A defendant residing or being out of the State, may swear to the answer before a notary or justice of the peace, or any other person au- thorized to administer an oath. Bland Rep. 353. The seal of the notary is sufficient authentication. Where the answer is sworn to before a justice of the peace out of the County or jurisdiction of the Court, it would be prudent, if not actually necessary, to annex th6 certificate of the Clerk, as to his being such justice, duly qualified, &c. The answer by consent is frequently filed without oath, even where the bill calls for it to be upon oath. The answer of a corporation is made under its corporate seal, with the affidavit of the president, or other proper officer. See as to the efiiect of such an answer, 4 Howard U. S. Rep. 185. The answer of an infant is under oath of the guardian; of an idiot, lunatic, or other perSon defending by guardian, is verified by the oath of such guardian. All the defend- ants must answer under oath; a party can only make affidavit for himself. Alex. Ch. Pi%,c. p. 61. The answer- is signed by the solicitor of the respondent, or by the party himself, or by both. The Chancery rule formerly was that whatever the defendant said upon oath responsive to the allegations of the bill, would prevail, unless refuted by the testimony of two witnesses, or one witness with pregnant circumstances; one witness . alone not being deemed sufficient. 2 H. & J. 301. 3 G. & J. 425. 8 G. & J. 170. 1 Md. Ch. Dec. 132. 4 Gill, 1. 12 Peters, 178, 190, and many other Maryland cases. But this ancient rule of practice is modified by the Code, [see the section set out, ante page 135,] Art. XVI. sec. 103, with the proviso that the section shall not apply MAEYLAND CHANCERY PRACTICE. 137 to motions to dissolve injunctions or to discharge receivers. In these cases, let it be noted that the exception does not extend to the decision of the case upon jinal hearing, but is confined to "motions to dissolve and discharge." An important rule to be observed is, that if in the answer the liability to the complainant is once admitted, there can be no escape from it by matter in avoidance, except upon proof. 2 Md. Ch. Dec. 160. 10 G. & J. 324, 403. It is said, however, that everything said (admitted) relating to the liability must is taken together. 1 Harr. & Gill, 12. This rule has given rise to much controversy in the books, or rather the application of it. 12" Peters, 189. lOG. (feJ. 65. IH. &G. 81. An answer will not support a matter set up in avoid- ance, or discharge where the matter of avoidance is a dis- tinct fact,- in such case the defence must be proved. Mr. Evans, in his appendix to Pothier, on Obligations, 157, lays down the following principle — that where the answer is replied to, the whole is put in issue, and the defendant must support hy proof all the facts upon which he means to insist, while the complainant may rely upon every fact admitted which he conceives to be material, without being bound to the admission of others; and this rule he deduces from a case cited in Gilbert, 51, which, as it is a leading case, it will be necessary to notice. There the defendant, by his answer, which was put in issue by ,the complainant's replication, admitted, as exe- cutor, that the testator had left eleven hundred pounds, and said, that afterwards the testator gave a bond for one thousand pounds, and the testator gave him the other one hundred pounds; as there was no evidence but the defendant's admission for the receipt, it was contended 138 MARYLAND CHANCERY PRACTICE. that he ought to find credit when Tie swears to his own discharge; but it was resolved by the Court that when an answer was put in issue, what was confessed and admitted need not he proved, but that it behove the defendant to make out, by proof, what was insisted on by way of avoidance. Chancellor Kent declares that this rule is well settled in chancery proceedings, and recognizes and adopts it in the case of Ten Eyck, 2 John- son's Ch. Rep. 62, where it was determined that in a bill to account, the answer is no evidence of disbursements. Chancellor Kent says, (quoting,) in 2 Johns. Oh. Rep. page 89, "Lord Hard wick says, in the case of Talbot vs. Rutledge, that if a man admits by his answer that he received several sums of money at particular times, and states that he paid away those sums at other times, in discharge, he must prove his discharge, otherwise it would be to allow a man to swear for himself and to be his own witness." And on page 90, in notes, is found, added by Chancel- lor Kent, as follows; Sir William Blaokstone lays down the rule in his Commentaries, vol. 3, 451, as one of undisputed admission and practice at that time, (1768,) that the plaintifi" in chancery, at the hearing, "may read such part of the defendant's answer as he thinks material or convenient, but that the defendant may not read any part of his answer." In Thompson vs. Lamb, 7 Vesey, 587, Lord Eldon said, "He was clearly of opinion, a person charged by his answer cannot by his answer discharge himself — not even by his examination, (before the master,) unless it is in this way : if the answer, on examination, states that upon a particular day he received a sum of money and passed it over, that may discharge him ; but if he says that upon MAKYLAND CHANCERY PRACTICE. 139 a particular day he received a sum of money, and upon a subsequent day he passed it over, that cannot be used in his discharge, for it is a different transaction. In Boardman vs. Jackson, (2 Ball & Beatty, 382,) the rule is thus stated: "That where a plaintiflF refers to an answer as constituting part of the pleadings in the cause, the defendant cannot, by a separate passage of the answer, discharge himself from any admission he may there have made — that he can only do by producing evi- dence. But when a plaintiflF refers to an answer in another cause, by way of evidence, he makes the whole answer evidence, and the defendant may then read any part of it in his defense." In Bush vs. Livingston, 2 Caines' Cases in Error — "Ae to matter of avoidance being to be proved, that (say they) we do not deny ; (we means counsel.) The nature, however, of an avoidance is to be seen. It is something subsequent, and dehors that which is admitted or alleged, as if a debt be acknowledged, but it be added you released it or I paid it,- there the release OT payTTient being matter of avoidance, must be proved." See 4 Paige, 507, Bartlett vs. Gale. The Chancellor says, "The defendant's counsel is wrong in supposing that the whole answer must be taken together as evi- dence, a,nd that complainant cannot avail himself of the admissions in one part of it, without being also bound by the statements and allegations in other parts of the same answer. This is not so, even where the complainant calls for an answer on oath, except as to those parts which are responsive to the bill." In the case of Pitzhugh et al. vs. McPherson et al. in 3 Gill, 429, the Court decides that admissions in an answer prevail, even when coupled with statements calculated to break the legal effect of the admissions. 140 MARYLAND CHANCERY PRACTICE. See the case of Jones vs. Belt, in 2 Gill, 120. In that case the defendant was required by the bill to admit or deny whether he made the agreement charged in the bill. In response to this enquiry, the defendant set forth in his answer what the contract was between the parties. Then the defendant's counsel insisted that it was necessary for the plaintiflF to disprove the agreement as alleged in the answer, but the Court decided otherwise. See 3 Mason, 383, Randall vs. Phillips: Judge Stoey says, "So far as the answers in this cause set up new facts by way of discharge or avoidance of the matter of the bill, or allege separate and independent agreements, they are not evidence for the defendants; but all such allegations must be substantiated by proof aliunde." The answer, if responsive, is evidence for the defendant, and requires two witnesses, or one with pregnant circum- stances, to overcome it; and where the matter in the answer refers to one transaction, all the facts alleged and the circumstances giving the detail must b,e taken to- gether. Turner vs. Knell, 24 Md. 55. Matters are not in avoidance where they are explanatory and in detail, and necessary to the full answer sought by an exception to an answer for insufficiency. The dis- tinction between matter of this kind and matters strictly in avoidance is well taken in 9 Wiscon. Rep. 366, 7. 3 Md. 226. 24 Md. Rep. 61. See 12 Peters, 189. 10 Gill &, Johns. 65. When the matter in avoidance is a distinct fact, it must be proved. 2 Johns. Oh. Rep. 62, 89. 7 Vesey, 587. 2 Ball & Beat, 382. 2 Games Cases. 4 Paige, 507. 3 Gill 429. 2 Gill, 120, 3 Mason, 383. 1 H. that which is the subject of the suit, or it may be granted against all the defendants, or against some or one of them only, or against each pro rata, or in different proportions.'" 1 Bl. 236. Ibid. 538. When the whole of a complicated case is brought be- fore the Court, " such a decree may be passed as is bei5,t suited to its peculiar nature." 1 Bland, 370. The Court must so decree that the whole controversy may be finally closed. 2 Bl. 264. A decree may give joint relief to two complainants, or separate and distinct relief to each ; as to one the bill may be dismissed, while /uU relief is granted to the other; "the same principle applies to defendants. 3 G. <& J. 12. MARYLAND CHANCERY PRACTICE. 197 These cases illustrate the remark of Judge Story, "that the pervading excellence of equity jurisprudence is, that it varies its adjustments and proportions to meet the very form and pressure of each particular case, in all its com- plex habitudes." The law of a decree must be executed ; it is binding upon all parties and privies unless reversed on appeal, and some of the defendants being minors is no exception to the rule. Bolgiano *'?;s. Cooke, 19 Md. 375. A person who is not a party or privy is not bound by a decree, although his rights are involved in the proceeding. 16 Md. 200. A decree between co-defendants, grounded upon the pleadings between the complainant and defend- ants may be made — 10 Gr. & J. 65 — must be made where the case is fully made out. 2 Bland, 264. It is error not to make a final determination on a matter before the Court. 6 G. & J. 171. A decree is erroneous which dismisses a bill absolutely, when it should be dismissed without prejudice to future proceedings by complainants. 6 G. & J. 424. Upon a decree 'pro confesso it is an established princi- ple that the allegations of the bill are to be received as true as to those parties against whom the decree passed. 3 Gill, 408. 10 G. & J. 489. After a decree has been enrolled, the Court will not entertain an application to alter or revise it, except by consent of all parties ; or in respect of matters which are of course, there can be no doubt of the right and duty of the Court to correct a manifest clerical error in its decree after the term has passed. 19 Md. 56, 524. A decree in equity is considered as enrolled after the term has expired during which it was passed by the 198 MARYLAND CHANOEEY PEACTICE. Court. 12 Md. 144, Tabler vs. Castle. 1 Md. Ch. Dec. 455. 2 Md. Ch. Dec. 368. Where a defendant is by decree directed to execute a conveyance, and a copy of the decree is served on him and he refuses to obey it, he may be compelled by attach- ment to do so. 1 H. & J. 370. The recital in a decree that an order to take a bill pro confesso had been duly served, is sufficient evidence of the fact in the Appellate Court. 9 G. & J. 1. 9 Md. 469, 348. The enrollment of a decree in equity, obtained by sur- prise, may be vacated by bill or petition. 1 Md. Ch. Dec. 20. It is a common practice for Courts of Equity to pass decrees, reserving the equities of the parties for some future order or decree. 3 Md. 505. DECREE OK A CEEDITOE's BILL. A decree on a creditor's bill, which adjudges in favor of all the claims of the complainants, when no proof what- ever was given in favor of any of such claims, save one, is, for this reason, erroneous, and must be. reversed. Ward et al. vs. Hollins et al. 14 Md. 158. Where a creditor's bill assails a deed, either for the purpose of having it rectified or vacated, all parties to the deed are necessary parties to the suit, and without such parties no valid decree can be passed. Ihid. On a creditor's bill filed for the benefit of the com- plainant, and of all others who may choose to come in and participate in the burthens and benefits, it is most proper that the decree should command the trustee to give notice, at the time of advertising the property for MAEYLAND CHANCERY PRACTICE. 199 sale, to all creditors to bring in their vouchers. Ihid, 192, per Bland, Chan. When a deceased debtor has devised his property to various persons, a decree for its sale for the payment of creditors would be erroneous, if it directed payment by contribution on the share of each. The question of con- tribution is not to delay the complainants, but is inte- resting Only to the defendants after the claims of creditors have been definitively adjusted. Gibson vs. McCormick, 10 G. &. J. 65. If the allegations of a creditor's bill, claiming by sub- stitution, are admitted or proved, or a decree passed pro confesso, the result is the same as regards the defendants, who are sui juris, and a decree passes, as of course, for the complainant's claim out of the real estate ; he being substituted, as against the realty, to the rights of the creditors, whose claims have been satisfied out of his pro- portion of the personalty. Ibid. On a creditor's bill for the sale of the real estate of a "decedent, on account of insufiicient personalty, a prelimi- nary account of the disposition of the personalty by the executor, and of the debts remaining unpaid, need not be taken. But even if such an account would have been directed, if the defendants, in their answers, had asked for it, their omission to do so precludes them from object- ing, in the Court of Appeals, to the decree, upon that account. Ibid. A decree of the Court of Chancery upon a creditor's bill, finally and conclusively establishes the claim of the complainant creditor and the insufficiency of the per- sonal estate to pay the same, and prevents the running of limitations .against the claim, as a simple contract debt. Griffith & Keys vs. Reigart and wife, 6 Gill, 445. 200 MAEYLAND CHANCEEY PRACTICE. WHAT IS A FINAL DECREE? An order or decree finally settling any disputed right or interest of tlie parties in a final decree. Ware vs. Richardson, 3 Md. 505. An order confirming an auditor's account is an order in the nature of a final decree. Wyman vs. Jones, 4 Md. Ch. Dec. 500. A DECREE OF A COURT OF ANOTHER STATE. A decree of a Court of Equity in another State must be considered as conclusive, as to the merits, upon the equities existing anterior to it, and as having the efficacy of a domestic judgment or decree, and as it could not be there examinable upon any ground of equity existing prior to its passage, so it is not examinable here upon any such ground. 3 Grill, 51. The jurisdiction of the Court in pronouncing the judg- ment (or decree) is open in a proper state of the pleadingsi If the judgment (or decree) is conclusive in the State where rendered, it is conclusive everywhere. See Wem- wag vs. Pawling, 5 G. cfe J. 500. Wright vs. Wright, '2 Md. 429. A judgment (or decree) rendered by a Court, without jurisdiction is void. 16 Md. 171. As to the force of a judgment or decree of a Court in another State, under our testamentary system, in the payment of debts due by the deceased, such decree is not entitled to any preference. 7 Gr. & J. 434. But it is not barred by limitations under twelve years. Duvall vs. Fearson, 18 Md. 502. MARYLAND CHANCERY PRACTICE. 201 PROVISIONS OF THE CODE. INTEELOCUTOEY DECEEB TO BE ENTEEED AND EX PAETE COMMISSION TO ISSUE. Whenever a subpoena shall issue from a Court of Equity on a bill filed in said Court, and such subpoena hath been returned summoned as to any of the defendants therein named, and the defendants, or any of them, so returned summoned shall fail to appear according to the exigency of the said writ, or having so appeared shall fail to put in a sufficient answer to the said bill within the time which may be prescribed by the Court from which the said writ issued for answering such bill, the said Court is authorized and required, on the application of the com- plainant, to enter an interlocutory decree in such cause, and to issue a commission ex parte to one or more persons for the taking of testimony to support the allegations in the said bill, which commission shall be issued, proceeded in, and returned in the same manner, and the testimony taken and returned under the same shall have the same effect as if issued and returned in the usual way, on answer, general replication and issue, and the Court shall proceed to a final decree in the cause in the same manner as if the defendant had appeared and put in his answer. Code, Art. XVI. sec. 115, p. 95. Fic^e sec 149. 1820, ch. 161, sec. 1. 9 Gill, 343. The complainant under the ex parte commission must prove his case fully. Oliver vs. Palmer, 11 G. & J. 426. 2G. &J. 311. 14Md. 355. Proof taken under an ex parte commission cannot be read against defendants who answered the original bill, 202 MAEYLAND OHANOEKY PRACTICE. though they failed to answer a bill of revivor in the same case, and an interlocutory decree was passed against them for such default. 4 Md. Oh. Dec. 343. A DECREE PRO CONFESSO MAY BE PASSED. Whenever any such bill as is mentioned in the preced- ing section shall charge any matter or thing as being within the private knowledge of the defendant, and shall pray a discovery, on oath, as to such matter or thing, and an interlocutory decree, as provided for in the last precede ing section, shall have been entered, and the complainant shall satisfy the Court, by affidavit to be taken in open Court and filed in the cause, that such matter or thing does rest in the private knowledge of the defendant, and that there is reasonable ground for believing, prima fade, that such matter or thing does exist, the said Court is authorized and required to order the bill as to such matter or thing, the same being sufficiently alleged and charged, to be taken pro confesso, and to proceed to make a final decree in the case, in the same manner as if such matter or thing had been proved on a commission or admitted by answer. Code, Art. XVI. sec. 116, p. 95. The decree pro confesso must precede tlie final decree. 11 G. & J. 137. 1820, ch. 161, sec. 2. 2 Bland, 447. 11 a. & J. 426. Note. — No decree pro confesso to be passed against an infant, or non compos mentis. Sec. 124, p. 98. MARYLAND CHANCERY PRACTICE. 203 DEFENDANT MAY FILE ANSWER AT ANY TIME BEFOEE FINAL DECREE. Any defendant against whom an interlocutory decree shall be entered under the preceding sections, and also any defendant against whom an order to take a bill as to any matter or thing, pro confesso, may be passed, may appear at any time before final decree and file his answer, on oath, to fhe bill, which shall be filed forth- with, or within such reasonable time as the Court in its discretion, and on special cause shown by affidavit, shall appoint; and on such answer being filed, such proceed- ings shall be had as would or might have been had in case such answer had been filed before the passage of such interlocutory order or decree, but the Court shall impose such terms on the defendant as the condition of permitting such answer to be filed as such Court may, in its discre- tion under all the circumstances of the case, judge reason- able and proper for avoiding delay or expense, and for the attainment of justice ; and the filing of such answer shall in no case affect the validity of any commission previously issued to take testimony, or of the proceedings, or any of them, under such commission, or of any testimony pre- viously taken and returned under any such commission. Code, Art. XVI. sec. 117, p. 96. 1820, eh. 161, sec. 3. 11 G. & J. 426. 12 G. & J. 103. DECREE WHERE BILL OF DISCOVERY FILED AND DEFENDANT FAILS TO ANSWER. In all cases where a bill for discovery merely is filed against a defendant of full age, and the subpoena issued thereon is returned summoned, and the defendant fails to 204 MARYLAND CHANOEEY PRACTICE. answer within the time fixed by the rules or order of the Court, upon satisfactory proof, by afiidavit or otherwise, being produced to the Court that such subpoena was duly served, the Court may examine the complainant in open Court, or upon interrogatories, on oath, touching the truth of the allegations in the bill, and if from such examina- tion the Court shall be satisfied prima facie that the alle- gations in the bill are true, then a decree shall be passed which shall have the same effect, in evidence or other- wise, as the answer of the defendant confessing all the allegations of the bill could have ; or if the subpoena shall be returned summoned, and the defendant shall fail to appear, or, after appearance, shall fail to answer, an attachment of contempt may issue, and if the said attach- ment is returned served, and the defendant fails to appear or answer as the case may be, the Court, upon being satisfied, of the service of both subpoena and attachment, may pass a decree pro confesso, or if in such case the attachment is returned nan est inventus, an attachment with proclamations may issue ; and if the defendant shall fail to appear or answer, as the case may be, the Court, upon being satisfied of the service of the subpoena, may pass a decree pro confesso, without examining the com- plainant, in its discretion, and such decree, in either case, shall have all the effect, in evidence or otherwise, that the answer of such defendant confessing all the allega- tions in the bill would have. Code, Art. XVI. sec. 119, p. 97. MAEYLAND CHANUERY PRACTICE. 205 WHERE PARTY IS SUMMONED ANI> FAILS TO APPEAR AFTER ATTACHMENT &c., A DECREE PRO CONFESS© MAY PASS, OR COMMISSION EX PARTE MAY ISSUE. In any case where a defendant has been returned sum- moned and shall fail to appear, an attachment may issue to compel the appearance, and if the attachment is served and the party fails to appear by the first day of the next term after the term to which such attachment was return- able, or if the attachttient be returned non est, an attach- ment with proclamations may issue, and if the defendant shall not appear by the first day of the term next after that to which the attachment with proclamations was returnable, the Court in either case may pass a decree pro confesso, or may order a commission ex parte to take evi- dence. Code, Art. XVI. sec. 120, p. 97. WHERE PARTY APPEARS AND FAILS TO ANSWER AFTER ATTACH- MENT, &c., DECREE PRO CONFESSO OR EX PARTE COMMISSION MAV ISSUE. If any defendant after appearance shall fail to answer within the time prescribed by the rules of Court, an at- tachment may issue against such defendant to compel him to answer, and he may be committed as for a contempt for not answering, and if the attachment shall be returned served, and the defendant does not answer by the first day of the term next after that to which the attachment was returnable, or if the attachment be retprned non est, an attachment with proclamations may issue, and if the defendant shall fail to answer by the first day of the term next after that to which the last named attachment was returnable, the Court in either ease may pass a decree joro ■aonfesso against- such defendant, or may order a commis^ 206 MARYLAND CHANCERY PRACTICE. sion ex parte to take testimony; any defendant under this or the preceding section may answer at any time before final decree, on such terms as the Court may pre- scribe. Code, Art. XVI. sec. 121, p. 98. A defendant having appeared and failed to answer, is entitled to notice of the order taking the bill pro confesso previous to the passage of the final decree, and such order must contain a proviso, that a copy thereof be served on the defendant, or left at his usual place of abode before a day certain. 13 Md. 337. 9 G. & J. 61. COMPLAINANT MAY SELECT HIS REMEDY. A complainant may take at his election any of the pro- ceedings authorized by this article against a defendant who fails to appear or answer. Code, Art. XVI. sec. 122, p. 98. NO DECREE PRO CONFESSO TO PASS AGAINST AN INFANT OR NON COMPOS. No decree pro confesso shall be passed against an infant • or insane defendant under the preceding sections relating to process, but such infant or insane defendant shall be proceeded against according to the provisions of this article relating specially to infants and persons non com- pos mentis. Code, Art. XVI. sec. 124, p. 98. In all cases where any of the defendants have appeared and answered, and a commission to take testimony has issued, and there are other defendants who are in default for not appearing or answering, and against whom a com- mission ex parte might issue, it shall not be necessary to MARYLAND CHANCERY PRACTICE. 207 issue such ex -parte commission ; but the complainant may take all his testimony under the commission issued as aforesaid, and such testimony shall be as available against the defendants who are in default, as if the same was taken under an ex •parte commission. Code, Art. XVI. sec. 149, p. 103. {Viden G. & J. 180. 11 Ih. 426. 12 Ih. 31.) ^•^•— - Z^'— ^ J ti,;^ 3 4, DECREES IN REM. A decree in equity for the sale of land to pay debts or legacies, or for the purpose of distribution among those entitled, is a proceeding in rem. Tongue vs. Morton, 6 H. & J. 21. A decree that unless the defendant shall before a given day pay to the complainant, or bring into Court to be paid to him, a certain sum of money, the mortgaged pro- perty mentioned in the proceedings should be sold, is a decree in rem. 2 H. HABERE FACIAS POSSESSIONEM Is the writ issued, where the object is to obtain possession of real estate. 1^64, ch. 283 repeals section 64 and substitutes the following: Whenever any lands or tenements sball be sold by any sheriff, constable, coroner or elisor, by virtue of any pro- cess or execution from any Court or justice of the peace of 14 210 MAEYLAND OHANCEEY PRACTICE. this State, or by any trustee under the decree of any Court of this State, by the trustee of any insolvent peti- tioner, by any trustee under any voluntary deed of trust, or by any mortgagee under a mortgage with power to sell, and the debtor named in such execution or decree, the insolvent petitioner, grantor, or mortgagor in said deed of trust or mortgage, or any other person holding under said debtor, insolvent petitioner, grantor or mortgagor by title subsequent to the date of the judgment, decree, insol- vent application, deed of trust or mortgage respectively, shall be in actual possession of the land and tenements sold, and shall fail or refuse to deliver possession of the same to the purchaser thereof, the Judge of the Circuit Court of the County in which said lands or tenements may.be situate, or if situate in the City of Baltimore, the Judge of the Circuit Court or of the Superior Court shall, on application in writing, to be verified by the affidavit of the purchaser, or his attorney, unless good cause to the contrary be shown by the debtor, insolvent petitioner, grantor or mortgagor, his,agent or attorney, or other per- son concerned, within not less than fifteen nor more than thirty days from the filing of such application as afore- said, issue a writ in the nature of a writ of habere facias possessionem, reciting therein the proceedings which may have been had on said process, thereby commanding the said sheriff, constable, coroner or elisor, to deliver posses- sion of the said lands and tenements to the purchaser thereof. Sup. Code, Art. LXXV. Code, sec. 65, p. 531, vide. Section 66 provides how the writ shall be served where the sheriff dies or ceases to act. 5 Gill, 206. Section 68 provides against abatement, in case of the .death of the MAEYLAND CHANCERY PRACTICE. 211 purchaser. Consult the Code, p. 531, 2. 1825, ch. 103. 1831, ch. 41 ; ch. 290, sec. 5. 1846, ch. 152. The right of a party to the writ of hah. fao. pass, does not relate to the time the execution was issued, but to the time when the lands were sold. Clark vs. Belmear, 1 C & J. 443. It is the practice where a purchaser is kept out of pos- session by the former owner of property sold under the decree of a Court of Equity, to interpose the authority of that Court and cause the possession to be delivered up. 1 G. & J. 611. 1 Bl. 356, 363, (note.) Notice to a tenant in possession should be given before issuing the writ, allowing him to show cause against it. Waters vs. Duvall, 6 G. be instituted by another person specially authorized by the Court. Mitf. Eq. PL by Jeremy, 29, 30, 104. Cooper Eq. PL 32. Note to sec. 64, Sto. Eq. PL p. 62. The question may frequently arise as to the capacity of a non compos to be a witness. See 1 Gr. Ev. sec. 365, and notes. The matter is within the sound discretion of the Court, and when admitted the evidence- must be weighed and considered in view of all the circumstances. See the case of Regina vs. Hill, quoted in Litt. Liv. Age, June, 1851, where all the Judges concurred that a non compos could be a witness. In bringing suit, the lunatic as well as his committee must be made a party to the suit. This is questioned, however, in Sto. Eq. PL sec. 65. The lunatic should be made defendant. If a bill is filed in the name of a luna- tic alone, and the fact of lunacy appears on the face of the bill, the defendant may demur or move to dismiss. Jacob, 377. Alex. Ch. Prac. 222. If it does not appear on the face of the bill, the objection should be taken by plea in abatement. Ibid. The Code provides that if any person entitled to make election under the law for the division of the estate of an intestate shall be non compos, in such case the person MARYLAND CHANCERY PRACTICE. 287 next entitled shall be authorized to make his election in the same manner as if the person disqualified had refused to make election. Art. XL VII. sec. 48, p. 338; and the Gen. Sup. Code, sec. 126, p. 44. NOTICE TO A NON-RESIDENT " NON COMPOS " is proAnided for by the 90th section, Art. XVI. p. 89, of the Code, by publication in some newspaper to appear and answer, and on failure such decree may be passed as may be proper, but the allegations. are to be fully proved under a commission, and the Court shall assign a solicitor for such non-resident, who shall be paid out of the estate of such non-resident, or by the plaintiff, at the discretion of the Court. Vide ante, pp. 258, 262. A Twn compos answers by his committee, as stated, if he has one, and if not, the Court, on motion, will appoint one for him, and after service of summons an answer can be enforced by attachment. In Post vs. llackall, a guar- dian was appointed to answer for a lunatic defendant who was in the Maryland Hospital, on the affidavit of the attending physician, and it was assumed that a guardian might in like manner be appointed for a defendant, whose age or infvrmities rendered him, incapable of defending his rights. Alex. Ch. Prac. 33, 34. The present writer doubts whether this last paragraph would be now consid- ered correct practice. There is no middle ground between a sane man and a nan compos. See 9 Md. 348, "356. To be non compos is to be in a state of mental imbecility. Under an inquisition of lunacy it will not be sufficient to return that a man is incapable of the genei-al manage- 288 MARYLAND CHANOERY PRACTICE. ment of his affairs, or that he is not of sufficient under- standing to manage his affairs. Alex. Chan. Prac. 225.. Cbncerning the property of persons non eompos, where the same shall be liable to any mortgage, trust, lien or in any way charged with the payment of money, the Court may decree as if such person non compos were of sound mind. Code, Art. XVI. sec. 71, p. 85. And where a non compos has real or personal property bound by any contract, or claims a right in property under a contract, the Court has the same power to decree as if the party was of sound mind. Sec. 72. 12 G. & J. 338. The Court may by consent decree a sale of the real estate of a non compos to save the personal. Sec. 73. , On the death of a non compos the jurisdiction over his estate ceases, and the Court doeg not proceed to deter- mine claims of creditors or next of kin. 2 Bland,. 89. In commissions of lunacy the first allowance is for costs of the commission, which includes legal costs with counsel fees, paid by the petitioner in conducting the inquisition, these are allowed unless excluded by a pre- vious order of the Court. Colvin's estate, 4 Md. Oh. Dec. 126. Counsel fees for conducting a controversy as to whether the lunacy did or did not commence at an earlier date than the filing of the petition cannot be allowed out of the est^ite, nor those paid in litigating the question who* should be appointed committee. Ibid,. Pees paid for legal services rendered the committee in defending and protecting the estate of the lunatic are proper and fair allowance. Ibid. MARYLAND CHANCERY PRACTICE. 289 Costs and counsel fees paid by the committee and receiver in litigating respecting his appointment and con- tinuance as receiver, in a controversy in the Orphans' Court after the death of the lunatic in regard to the appointment of an administrator, cannot be allowed out of the estate. Ibid. Upon a judgment, execution and sale, the title to land passes though the defendant in the judgment was a lunatic at the time^of its rendition. 1 Gill, 345. A continuing insanity is never to be presumed where the malady or delusion under which the party labored was in its nature accidental and temporary. Brooke vs. Townshend, 7 Gill, 31 ; also 3 Md. 67. Proof of partial insanity will defeat contracts generally. Ibid. The opinions of witnesses not experts, not admissible to prove insanity ; but a witness may give his opinion in connec- tion with the facts upon which it is founded, and as derived from them. Ibid. 8 Md. 433. 3 Md. 67. Deed of lunatic is voidable and not void; acts of lunatics and infants are treated as- analogous. The doc- trine that every act of an infant or lunatic is only void- able and not void is not advanced by the Court. 1 Md. 39. The -power of appointing a committee for a lunatic is discretionary, and cannot be reviewed by any other Court, though the committee is usually appointed on the nomination of the person who sues out the commission of lunacy, yet a caveat may be entered against the appoint- ment, and when this is done the recommendation of the parties interested will be considered, and proof taken to aid the Court in making the selection. Colvin, 3 Md. Ch. Dec. 278. 19 290 MARYLAND CHANCERY PRACTICE. It is the peculiar duty of a Court of Equity to watch over idiots, lunatics, madmen and fools. Brogden vs. Walker, 2 H. & J. 285. Where a weak and intemperate young man, who was conscious of his inability to manage his own concerns, made an absolute deed of all his property, real and per- sonal, to a relation, to whom he was indebted in a sum much less than the value of the property conveyed, the deed was held, on a bill filed in equity by the grantor against the grantee, to be a mortgage, although the answer denied all fraud, and maintained that the deed was intended as an absolute conveyance, and no fraud was proved in the case. Ibid. A Court of Equity will not enforce a contract for the sale of property, made for an inadequate consideration, by a person whose mind has been reduced to a state of im- becility through habitual intoxication. Reinecker vs. Smith, 3 H.& J. 421. A woman may be appointed the committee of a lunatic. Gibbon's case, 1 Bl. 138. A person who is actually non combos, but who has not been found so under a writ de Iwhatico inqmr&nda^ may be permitted to sue in equity, as a co-plaintiff, with another, who may be treated as his committee. Rebecca Owing's case, 1 Bl. 290. The granting a writ de IvMatico, is in some measure discretionary with the chancellor, and may be dispensed with, for good cause, for the benefit of the lunatic. Ihid. Although the Court of Chancery cannot dispose of the person or estate of an individual who is a lunatic, without an inquisition, yet it may, under particular circumstances, extend its protection to his person or estate, without any such previous inquest. Ibid. MARYLAND CHANOERY PRAGTIOE. 291 A suit instituted by a person in her dotage, having been dismissed by her, under the influence of the defend- ant, was reinstated and directed to be thenceforward prosecuted by her solicitor for her benefit. Colegate D. Owings' case, 1 Bl. 370- It was also ordered, that she phould be permitted freely to go and reside where she pleased, and if necessary, that a receiver should be put upon the estate to have its rents and profits applied to her maintenance, pending the liti- gation. Ihid. The maxim of the English law, that no man of full age shall be permitted to stultify himself, is inconsistent with the principles of the law of Maryland. Ihid. A contract made with ^person who is at the time actually non compos mentis, wheither from idiocy, lunacy, delirium, or dotage, is entirely void. Ibid. If a person of weak mind be imposed upon, he may be relieved in equity. Ibid. Under the general term- non compos irientis, is conjpre- hended every species of mental derangement, which incapacitates a man from making a valid contract. Ibid. The becoming a lunatic does not release a contracting party from his liability, and therefore the COurt may appoint a trustee to convey in his name in specific per- formance of his contract. Ibid. In order to ascertain the iQental condition of a party, medical professors may be ordered to visit him and m^ke report to the C6urt. Ibid. Perishable articles of a lunatic may be ordered to be sold, to prevent a loss. Boarman's case, 2 Bl. 89. Mor- gan's case, 3 Bl. 332. 292 MARYLAND CHANCERY PRACTICE. A person not a resident of the State should not be appointed the committee of a lunatic. Ihid. Morgan's case, 3 Bl. 332. On petition and affidavit, a writ de lunatico inquirendo may be issued; it should be directed to the County in in which the person alleged to be insane resides,, and if he be not within the State, it should be directed to the County in which he last resided, and in some cases his appearance before the inquest may be dispensed with. Campbell's case, 2 Bl. 209. Boarman's case, 2 Bl. 89. Morgan's case, 3 Bl. 332. A partnership for a definite period may be determined before the specified time has elapsed, by the act of God, as by death or the habitual mental insanity of one of the partners. The partnership is thus held to be absolutely terminated, because it is deemed unjust that the surviving partner should have a stranger intruded upon him in the place of him in whom he confided, and with whom he had associated himself; and also, because it would be in a great degree impracticable to continue the partnership after such an event, upon the terms upon which it was originally formed. The Cape Sable Company's case, 3 Bl. 606. Though in this State it is more usual to appoint the same party committee of the person and estate, yet not unfrequently the practice is difierent, and, from peculiar circumstances, it is sometimes eminently proper to entrust the person of the lunatic to one committee, and his estate to another. In the matter of Rachel Colvin,- 3 Md. Ch. Dec. 278. The rule of the Court in making such appointment, other things being equal, is, to appoint him who is recom- MAEYLAND CHANUEKY PEAOTICE. 293 mended by the greatest number of those who are entitled to be heard. Ibid. '^ The will of the lunatic, though made when she is compos mentis, and though she may never be restored to mental capacity so as to revoke it, is still, in legal con- templation, ambulatory, until her death, and until then can confer no rights, and can have no influence on the Court in appointing her committee. Ibid. The great and leading object in the selection of persons to manage the estate and persons of lunatics, is, to advance their welfare and comfort, and the interest of those who may be entitled to the succession is wholly subordinate to this. Ibid. The law now presumes that those who are the nearest of kin to the lunatic will treat him with more afiection than strangers to hia blood, and hence, consanguinity, though it confers no positive title, is now considered a recommendation in the selection of a committee, and a strong ground must be shown before it will be disre- garded. Ihid. If the person recommended is embarrassed by pecu- niary difficulties, and there is reasonable ground for apprehending that he would be likely to employ the money, which may come to his hands as a committee, in his own affairs, it would operate with powerful force against his appointment. Ibid. The death of the lunatic determines the office of the committee, and the only power chancery retains over the committee, as such, is, to compel him to account and deliver possession of the property as the Court shall direct. Ibid. (3 Md. Rep. 454.) But the committee is to retain possession and preserve the property, until some person shall appear, properly 294 MARYLAND CHANCERY fRACTlCK. authorized to receive it from him ; and, in the meantime, if there is reason to apprehend delay in ascertaining who are entitled to the possession, a receiver may be appointed upon application of the parties in interest. Ihid. "The jurisdiction of chancery, in lunacy, remains after the death of the lunatic, only to the extent and for the purpose of having .the necessary accounts tabfen, and directing the fund or estate to be paid over to the party entitled. Ibid. (7 Gill, 366.) After the death of the lunatic, chancery will not administer the fund even for the benefit of creditors. They must pursue their remedies before the ordinary jurisdictions ; nor will the Court adjudicate questions of right between opposing claimants. Ibid. If the committee of the person and estate of a lunatic has given a Well secured bond for the faithful performance of his duty, and is in other respects a fit persoh for the purpose, his insolvency in fact (not having taken the benefit of the insolvent laWs) is liot cause for removal. Estate of Loriman Chew, 4 Md. Oh. Dec. 60. Expenditures for stationery do not come within the range of disbursements, which a committee or receiver is permitted to make at the expense of the estate of the lunatic. Estate of Rachel Colvin, 4 Md. dh. Dec. 126. The first alloWahce i§ fOr the cost of the commission, which include legal costs, with counsel fees paid by the petitioner in conducting the inquisition of lunacy. These are allowed, unless excluded by the previous order of the Court. Ibid. On a petition for freedom the defendant may show that, at the date of the deed of manumission under which the petitioners claim th.eir freedom, the grantot was of un- MABYLAND CHANCERY PRACTICE. 295 sound mind and incapable of executing a valid deed or contract. Negroes Jerry et al. vs. Townshend, 9 Md. 145. Where evidence is given of the insanity of the grantor, before and at the date of the deed assailed, testinaony showing the state of his mind subsequent to the deed, and that the insanity was continuing and permanent in its character, is admissible. Ibid. Where, on a petition for freedom, it was proved that the grantor, prior "to the execution of the deed of manu- missionj labored under permanent or habitual insane delu- sions in regard to bis right of disposition of the negroes manumitted by the deed, the onics is on the petitioners to prove that he was free from such delusion at the date of its execution an J recording, in order to authorize a verdict in their favor. Ibid. Where the grantor in a deed is a man of weak mind, and this mental imbecility has been unduly taken advan- tage of by the grantee, the deed will be vacated by a. Court of Equity. Long vs. Long et al. 9 Md. 348. But in such a case the grantee is entitled to be reim- bursed the money paid, or secured to be paid bona^fde by him, for the property conveyed by. the deed. Ibid. The fact that a testatrix was ninety-six years old when her will was executed, that by it she disinherited her only son and grand-children, giving her whole estate to her son-in-law, who procured the will to be prepared by counsel, and that shortly before its execution her son was confined in jail upon the complaint of some person unknown, for an alleged assault upon her, where he remained for some months and was then discharged with- out trial, would, if not rebutted, be sufficient to sustain a caveat to the will. Jennings vs. Pertdergast, 10 Md.-346. 296 MAEYLAND CHANOEEY PEAOTICE. But all the attesting witnesses having testified posi- tively to the mental capacity of the testatrix at the tinae of the execution of the will, and other witnesses having testified, some to her capacity and others to her imbe- cility, and the Orphans' Court, before whom these wit- nesses were examined and the case tried, having sustained the will, their decision was affirmed. Ibid. A bill of sale of stock, with a power of attorney for its transfer, executed by a lunatic, may be avoided by the lunatic in a proceeding instituted for that purpose, and the bank held responsible for allowing the transfer to be made under such a power. Chew et al. vs. Bank of Bal- timore, 14 Md. 299. From the current of authorities it seems that the acts of lunatics and persons non compos mentis are voidable and not absolutely void. Ibid. Lunatics and persons non compos mentis are not bound by their contracts, even though no fraud or imposition has been practiced upon them. Ibid. According to the established doctrine the acts of luna- tics and infants are treated as analogous, and in this view the transfer of stock .under a bill of sale and power of lattorney from a lunatic may be avoided. Ibid. In thi^ case the transfer of stock, under a bill of sale and power of attorney, executed by. a lunatic, was avoided, and it was held that the bank should pay simple interest on the dividends accrued on the stock since the transfer, from the time the bank knew of the lunacy. Ibid. A non-resident non compos has the privilege to file a bill of review. Vide Code, Art. XVI. sec. 91. Ante p. 259. Vide sec. 113. MARYLAND CHANCERY PRACTICE. 297 For lunatic paupers, and how they are to be so found and disposed of, see Code, Art. LVIII. p. 398. Lunatics charged with crime, see same Article. Sec- tion 1 1 is as follows : " Nothing contained in this article shall affect the powers of the Courts of Equity further than to require that the estate of such lunatic or insane person, if he hath any, shall be chargeable, with the expenses of his commitment and confinement." Sto. Eq. ch. XXXV. sec. 1365, says: In regard to the manner of ascertaining whether a person is Tion compos, the mode is by petition addressed to the Court, whereupon a commission of lunacy will issue. This inquisition is always tried by a jyry whose unimpeached verdict be- comes conclusive of the fact, and such a commission is not confined to idiots and lunatics strictly so-called, but is extended to all persons who, from age, infirmity, or other misfortune, are incapable of managing their own affairs, and therefore are properly deemed of unsound mind or non compos mentis. Non compos, [quasi) drunkards, see Gr. Ev. vol. 2, sec. 374. Sto. Eq.Jur. sees. 230, 231, 232, 233. 3 Lead. Cas. in Eq. pp. 135, 136. With respect to contracts made by persons non compos, see 1 Sto. Eq. Jur. sees. 223 to 230. The text of Alex. Chan. Prac, quoted at some length in this chapter, is taken chiefly from Bland's reports. The principles and practice decided by Chan. Bland have been confirmed by the subsequent decisions in Maryland. CHAPTER XXVI. INJUNCTION. An injunction is a prohibitory writ specially granted by the Court, upon the exhibition of a bill setting forth a proper case, and praying the interference of the Court in restraining the defendant from, doing some act preju- dicial to the complainant, and which is against equity and good conscience. It is generally granted to prohibit action ; sometimes, although rarely, to undo what has been done. It issues generally Without notice to the defendant, and before his appearance to the suit, but not always. In cases where the writ of injunction is sought, it should not only be included in the prayer for relief, hut also in the prayer for process. Sto. Eq. PL sec. 44. Where it issues to restrain proceeding at law, it does not act or profess to act upon the Court of Law, but upon the party to the cause only — 12 Wheaton, 561 — and if the party disobeys the injunction, he will be punished for such disobedience. The bill for an injunction must be verified by affidavit — not necessarily the affidavit of the complainant, for if the complainant be a non-resident, or unable from any cause to make the affidavit, it can be made by a third person, who has the required knowledge, and whose testimony is tredited and sufficient to satisfy the Court (prima facie) that the averments of the bill are true. MARYLAND CHAKCERY PRACTICE. 299 Granting an injunction is a matter resting in the sound discretion of the Court, and such power should be exer- cised with extreme caution, and to warrant its action strong prima facie evidence of the facts on which the complainant's equity rests, must be presented to the Court. 12 Md. 315. 14 Md. 444. 17 Md. 309; Where the claim is on a written instrument in the pos- session of complainant, it should be exhibited with the bill, or a satisfactory reason assigned for its non -produc- tion. Ibid. 16 Md. 69. The statement that an affidavit to the bill is required, is qualified by the case of 12 Md. 274 — " it is not indis- pensable in all cases that a bill for injunction should be sworn to ; all that is required is, that the confidence of the Court should be obtained, and this may be had on documentary evidence." It is the practice in most cases to require the com- plainant suing out an injunction, to give bond to indem- nify the defendant from loss by reason thereof. The giving of the bond, however, is discretionary with the Court, and bonds are not always required. See Alex- ander vs. Ghiselen, 5 Gill, 138. White vs. Davidson, 8 Md. 169. If injunction issues without bond, the party injured may immediately apply to the Court, asking that the complainant may be required to give a bond of indemnity. 5 Gill, 138. In all cases where a bond is required to be given, the Court fixes the penalty, and it is then subject to the approval of the Court or the clerk. The right of the latter to approve su(*h bond is fixed by the Code, Art. XVIII. sec. 22, p. 109. Ante p. 19. If the bond given should be deemed by the defendant insufficient, he may apply by petition to have a new bond 300 MARYLAND OHANCEEY PRACTICE. given, and if the Court should order such new bond to be given, a failure to comply would be followed by a dissolu-' tion of the injunction. The injunction, when issued, may be dissolved by an appeal, and the filing of an approved appeal bond. Code, Art. V. sec. 23, p. 24. The injunction in the first instance is granted to con- tinue until the further order of the Court. A motion to dissolve is not allowed until after the filing of the answer, and where there are several defendants, the answers of all must be filed. Mr. Alexander says there are exceptions to this rule, and cites 1 Bland, 199, 183, 188, 189, 418. Alex. Chan. Prac. 87, 88. A motion to dissolve cannot be made on filing a plea or demurrer, but upon final hearing, if such plea or demurrer is sustained, and the cause is thereby termi- nated, the dissolution of the injunction would follow as matter of course. After an answer filed, the motion to dissolve generally follows promptly, and the question may be determined on bill and answer, or testimony may be taken by either side. In all cases pending on motion to dissolve an injunc-' tion, the Court may, at the instance of either party, order testimony to be taken before such person and upon such notice and in such manner as the Court, in its discretion, may direct, to be used at the hearing of such motion. It is often said that an application for injunction is addressed to the sound discretion of the Court, but the application is always founded upon some right of the applicant. If a proper case is made by the bill, the Court is bound to grant the writ, and if the Judge refuses MARYLAND CHANCERY PRACTICE. 301 so to do, he is required by the Code to certify, in the form of an order, his refusal, and the applicant is entitled to appeal. The provision of the Code is highly important, and is here inserted : In all cases where a Judge of a Court of Equity shall refuse to grant an injunction, he shall certify in the form of an order his refusal to do so, from which order and refusal the party applying for the injunction shall have a right to appeal, and the clerk of the Court shall forthwith transmit the original papers comprising the bill or petition and exhibits, and the Court's order of refusal, to the Court of Appeals, and the said Court shall hear and determine said appeal immediately on the application of the appli- cant, and if they reverse the said order they shall remand the case with the original papers, and order the Court to grant an injunction in conformity with their decision. Code, Art. V. sec. 25, p. 24. The Court will not grant an injunction under the gen- eral prayer for relief; it must be expressly prayed. Sto. Eq. PI. sec. 41. And in the note to Story, it is said that the prayer for an injunction must not only be in the prayer of relief, but in the prayer of process. Quid vide. 2 Bland, 99. ^ The injunction operates from the time of service on the defendant, and not before. It is not sufficient that the defendant has knowledge that' an injunction has been awarded and issued. Mr. Alexander says otherwise ; p. 90, Alex. Chan. Prac. Chancellor Tuckee, in his Com- mentaries, says: "The plaintiff who desires to have the benefit of his injunction should promptly give security and have the subpoena, with its proper endorsements, served on the defendant, for until the terms of the order 302 MARYLAND CHANOERy PRACTICE. are complied with, there is no injunction." 2 H. A M. 23. Nor is it sufficient ground for an attachment that the party against whom it is prayed had heard that an injunction had been awarded, cfec. It has been ah-eady said that an injunction generally is granted to prohibit action, and no.t to undo what has been done. One exception to this rule is the case of a levy by the sheriflf on personal property; .for in such cases an injunction not only prevents a sale or further action, but the officer is required to deliver back the property to the party from whom it was taken. See Code, p. 82, Art. XVI. sec. 55; Vide Act 1799, ch. 79, sec. 10. 3 Bland, 637. 4 Har. & McH. 222. ' It is said, in 1 Md. Ch. Dec. 97, Washingtoi; Univer- sity vs. Green : An injunction, unless issued after the decree, when it becomes a judicial process, can only be used for the purpose of prevention and protection, and not for the purpose of commanding the defendant to undo anything he had previously done. Where the Court is not entirely clear about the pro- priety of granting an injunction, and the need is not very pressing, it is not unusual to set the application down for hearing at a short day, with notice to the other side, who is at liberty in the meantime to file his answer, or make any other defence of which the case is susceptible : such a course is of ordinary otcurrence in the City of Balti- more. Start vs. Murray, Circuit Court of Baltimore Ciiy, 1867, fol. 130. Where an answer comes in before the injunction is ordered and denies, the equity of the bill, in such manner as would authorize a dissolution or motion to dissolve ; the injunction in such ease ought not to be granted. Bell MARYLAND CHANCERY PRACTICE. 303 vs. Purvis, 15 Md. 22. [Until the case is heard on final hearing ; then if the testimony sustains the equity of the bill, an injunction might be proper to give full relief.] If the injunction is set down for hearing on bill and answer, or on a motion to dissolve, the answer is regarded and taken for true in its allegations so far as the same are responsive to the bill. New matter set up by way of avoidance does not avail. 10 Gill & Johns. 317. The want of a proper party to the bill is not ground for dissolution on the preliminary motion; such party may be supplied by amendment at any time before the final hearing. 12 Gr. & J. 1. Neither does an abatement of the suit, ipso facto, dissolve an injunction. Alex. Ch. Prac. 89. 1 Bl. 548. 3 Bl. 1. An amendment of the bill will generally work a disso- lution of an injunction ; but the Court may allow an amendment specially reserving the injunction. See Alex. Ch. Prac, Preface X. 2 Bland, 99. An injunctioji can only be dissolved on motion by posi- tive contradictory averments in the answer responsive to the allegations of the bill and within the personal know- ledge of the defendant. Doub vs. Barnes, 4 Gill, 1. 1 Md. Ch. Dec. 127. Unless on the argument of the motion to dissolve, the Court should become satisfied that the injunction should not have been granted on the, allegations of the bill. An answer which does not deny the averments, but states that "respondent does not believe and cannot •admit," &c. is not sufficient. 3 Md. Ch. Dec. 392. 4 Md. Ch. Dec. 514. An affidavit to a bill for injunction that the facts are true, to the best of complainant's knowledge and belief, is sufficient. 11 Md. 452. 304 MARYLAND CHANCERY PRACTICE. Where the bill charges a mere trespass, and the injury alleged is not irreparable and destructive of the complain- ant's estate, but is susceptible of perfect pecuniary com- pensation, for which the injured party may obtain ade- quate redress at law, and there is no charge of insolvency in the defendants, an injunction will not be granted. 4 Gill, 34. 1 Md. 539. 3 Md. 480. 14 Md. 152. 9 G. &J. 468. 12G. &J. 1. See post. In cases of irreparable damage, the averment that the injury is of that character is not sufficient. The bill must go further and set out the facts on which the allegation rests, and such facts must be sufficient to satisfy the Court that the apprehension of such injury is well founded. 3 Md. Ch. Dec. 456, 499. 3 Md. 480. 4 Md. 98. 10 Md. 89. INJUNCTION TO STAY PEOCEEDINGS AT LAW. Whenever an application shall be made by an executor or administrator for an injunction to stay proceedings at law, the Court may, in its discretion, prescribe the pen- alty of a bond, which shall be executed to the plaintiff at law, with security approved by the Court, before the • injunction shall be granted, and the condition of such bond shall be, to perform such order or decree as the Court shall finally pass in the cause on the hearing of both parties ; and whenever an injunction is obtained by an executor or administrator, on filing a bill and execut- ing a bond as aforfesaid, the Court shall have full power and discretion to decree against such executor or adminis- trator, as equity and good conscience shall seem to require. Code, Art. XVI. sec. 54. MARYLAND CHANCERY PRACTICE. 305 A Court of Equity never against equity and good con- science will interpose by way of injunction to arrest the progress of proceedings at law, unless required to do so upon principles of public policy. Craig vs. Ankeney, 4 Gill, 225. Where a party applying for an injunction against a suit at law, admits that he owes a balance to the person to be enjoined, the Court may require such balance to be brought into Court to be paid accordingly. Plickinger vs. Hull, 5 Gill, 60. [See Rule 31, Circuit Court of Balti- more City .J A State Court has no jurisdiction to enjoin a judgment of the Circuit Court of the United States. McKim vs. Voorhees, 7 Cranch, 279. For the principles, with their limitations, governing Courts of Equity in restraining proceedings at law, vide the Earl of Oxford's case, 3d vol. Lead. Cas. in Eq. p. 154, where the whole subject is treated and exhausted. Any fact which clearly proves it to be against con- science to execute a judgment, and of which the injured party could not have availed himself in a Court of Law, or of which he might have so availed himself, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will justify an application to a Court of Equity for injunction. 7 Gill, 109, 189. 8 Gill, 433. 4 Md. 375. 7 Md. 408. 13 Md. 196. 17 Md. 196. 20 Md. 305. An injunction will not issue to restrain execution of a magistrate's judgment, on the ground that it was rendered without a warrant, because the defendant in it had full and ample relief at law by appeal. 2 Md. 320. 20 306 MARYLAND CHANCERY PRACTICE. Courts of Equity will interfere when Courts of ordinary- jurisdiction are inadequate instruments of justice, to restrain the assertion of doubtful rights in a manner pro- ductive of irreparable damage, and to prevent injury to a third person by the doubtful title of others. 8 Gill, 433. If an injunction to stay proceedings at law is granted before declaration filed, it will stay all proceedings. If after declaration filed, the plaintifi" may proceed to trial and judgment, and the injunction will only stay execu- tion, unless upon the special circumstances the Court should extend its eflFect. Except in the case last stated, an injunction stays the proceeding of the defendant or person against whom it is directed from the time of its service. It does not avoid any act done, nor restore the plaintiff to anything of which he has been deprived before its service ; therefore, where an execution has been actually levied before service of the injunction, the pro- perty remains subject to the levy of the sheriff, except in the case of personal chattels, which are delivered up under Art. .XVI. in the Code, p. 82, sec. 55, before referred to. And if the injunction is dissolved, the sheriff may sell without making a new levy. Alex. Ch. Prac. 89. 3 Bland, 306. INJUNCTION TO STAY "WASTE." If any person against whom an injunction to stay waste has issued, shall at any time after the service thereof commit any waste on the premises, or with his consent suffer any to be committed in disobedience of such injunction, on proof of such waste by affidavit or otherwise, the Court may issue an attachment for con- MARYLAND CHANCERY PRACTICE. 307 tempt against him and punish him by imprisonment or fine, or both. Code, Art. XVI. sec. 51, p. 81. On complaint to the Court of any disobedience of an injunction as aforesaid, the Court shall ascertain the value of the damage done by such waste by affidavit or other proofs, either before or after the attachment or imprison- ment mentioned in the preceding section, and may order the oflfender to pay double the value of the damages so ascertained, and may enforce a compliance with such order by an attachment for contempt or hj fieri facias. Sec. 52. If any person against whom an attachment has issued under either of the preceding sections, shall satisfy the Court that no waste has been committed "since the service of the injunction, he shall be discharged with his costs. Sec. 53. Equitable waste, [see 1 Lead. Cas. Eq., top pp. 666 to 719,] is that which a prudent man would nbt do in the management of his own property. Turner vs. Wright, 6 Jur. N. S. 809. See note, 1 vol. Sto. Eq. Jur. p. 504, sec. 518a. The following decisions are noted as useful for reference in regard to "waste:" Duvall vs. Waters, 1 Bland, 569. Amelung vs. Seekamp, 9 Gill & Johns. 468. Murdock's Case, 2 Bland, 461. Maddox vs. White, 4 Md. Eep. 72. Green vs. Kean, 4 Md. 98. Brown vs. Stewart, 1 Md. Ch. Dec. 87. Georges C. Co. vs. Detmold, 1 Md. Ch. Dec. 371. Childs vs. Smith, 1 Md. Ch. Dec. 483. Par- son vs. Hughes, 12 Md. 1. State vs. N. C. Railway Co. 18 Md. 193. Jurisdiction of Courts of Equity to protect by injunc- tion the exclusive right of a manufacturer to his trade 308 MAEYLAND CHANCEEY PRACTICE. mark cannot be questioned. Perry vs. Truefit, 6 Bea- van, 66. Bee The Collins Co. vs. Oowen, 3 Kay & Johns. Rep. 428. Amoskeag Manuf. Co. vs. Spear, 2 Sanford Rep. 599. 25 Barbour, 416. Vide the case of Feigner vs. Marburg, in Circuit Court of Baltimore City; in which the Court (Pinkney) has filed a long and able opinion, reviewing this subject in all its bearings, and wherein he has examined all the leading English and American deci- sions. Opinion filed 14 Dec. 1868. Docket of 1867, fol. 149. See also Sto. Eq. Jur. sees. 951a, 951b, and notes. See New York Leg. Obs. p. 94. Jurisdiction of the Court to issue an injunction to restrain the publication of letters. See American Law Register for an elaborate article, June, 1853. 2 Sto. Eq. Com. sees. 944 to 950. Jurisdiction in case of nuisance. A Court of Chancery can order a nuisance to be abated, as well as restrain its erection, where the loaus in quo is within the jurisdiction of the Court. Morris vs. Remington, in Parson's Cas. in Eq. p. 395. 2 Johns. Ch. Rep. 272. 2 Atk. 83. I Vesey, 544. 1 Paige, 197. Parsons, vol. 2, p. 92, The Court of Chancery has power to prohibit by injunction, the obstruction of water courses, the diversion of streams from mills, the back flowage upon them, and injuries of the like kind, which from their nature cannot be adequately compensated by damages at law. Lam- born vs. The Covington Co. 2 Md. Ch. Dec. 409. In cases of private nuisance, the Court would, after hearing the parties, be authorized not only to interpose preven- tively, but may order them to be abated. Ibid. A Court of Equity may prohibit by injunction the creating of a "public nuisance." 11 Md. 128, Hamilton i'.s. Whitridge. MAEYLAND OHANCEKY PEAOTIOE. 309- INJUNCTION TO STAY SALE OF MOETQAQEI> PREMISES. See Art. LXIV. sees. 15, 16, 17. Gayle vs. Pattle, 14 Md. 69. CASE OF lEREP ARABLE INJURY. That an injunction will issue where the injury is irrepa- rable, or where full relief cannot be had, or where the trespass goes to the destruction of the property as it has been held and enjoyed, or where it is necessary to prevent a multiplicity of suits in cases where the right is contro- verted by numerous parties, each standing on his own pretensions, refer to the following cases : Amelung vs. Seekamp, 9 G. & J. 468. Lucas vs. McBlair, 12 G. to enforce the lien of mechanics and others, fur- nishing work and labor or materials for buildings, or itLachines, or for boats or vessels. It is enacted by sec. 24 of the Code that the proceedings to recover the amount of any Uen under this article, (LXI.) whether upon a house, machine, boat or vessel, shall be by biU in equity or by scire facias. If the proceeding is by bill in equity, the same pro- ceedings shall be had as used in Courts of Equity to enforce other liens ; ajid the Court shall decree a sale and ftppoint a trustee to make sale thereof, and shall apportion 441 MARYLAND CHANCERY PRACTICE. the proceeds of such sale among the persons entitled to liens according to their respective rights. Sec. 25. The Counties of Kent, Queen Anne, Charles, Calvert and Bt. Mary are excepted by sec. 43 of the Code, as amended by Act of 1867, chap. 277, from the operation of the law. The eflFect of amending this section makes the law applicable to the Counties of Somerset and Wor- cester, which were excepted in the original section of the Code, p. 412. The bill should be framed, as in other cases where the object is to enforce a lien, keeping in view the necessity of making all persons (incumbrancers) parties who have an interest in the subject matter of the suit. The pro- ceeding is somewhat analagous to a creditor's bill. Where the bill is filed for the purpose of enforcing the lien against a chattel — e. g. a machine or vessel — and there is danger of destruction or removal charged in the bill, the Court will take the chattel under its control, and appoint a receiver to take possession of it. If it is per- ishable, or the manifest justice of the case requires it, a sale will be ordered, and the proceeds invested under the order of the Court, to await the final decision of the cause. The decree being in rem, public notice is given in the usual form for all parties having any claim to come in within a certain named day, and file their claims, which have to be proved before the auditor, as in other cases, or by testimony taken under a commission issued for that purpose. A sale passes a clear title to the purchaser of all the interest of the owner therein. If there is a mort- gage or other lien on the property, such incumbrancer ought to be made a party, and if not so made in the bill, such incumbrancer ought to be brought in by petition MARYLAND CHANCERY PRACTICE. 445 beforef the distribution of the proceeds. The Code is silent as to the practice in these cases, further than to say, that the proceedings shall be similar to other cases where liens are enforced. The rule must be, therefore, to follow strictly in the path of analogous cases. LIEK ON MACHINES. The lien of a mechanic, under the lien laws of this State, attaches upon buildings for work and materials as soon as the house is begun, and upon a machine as soon as the mechanic begins to put it up. Wells & Miller vs. The Canton Company, 3 Md. Eep. 234. This lien has a preference over all liens or incum- brances attaching subsequently to the commencement of the building or the putting up of the machine. Ibid. A claim for lien was filed in the County Court against certain machinery in a factory, and a s(dre facias issued thereon. This lien suit was subsequently stricken off by agreement, and the claim filed in a chancery suit, in which the whole property, consisting of the factory and all the machinery in it, was sold by a trustee, en masse, free of all incumbrances, notice, however,, of the lien claim having been given to the trustee at the time of the sale. Held, that the mechanic had, upon general princi- ples of equity, the right to demand payment of his claim out of the proceeds of sale. Ibid. The fact that the whole property, including the ma- chinery, was sold en masse for a gross sum, is not a fatal objection to the claim for lien ; for the relative value of the machinery may be ascertained by proof on the sub- ject. Ibid. 446 MARYLAND CHANOEEY PRACTIOE. The lien both of the mechanie who furnishes materials, and of the machinist who puts up the machine, are sub- ordinate to prior incumbrances, but subject to such, their lien extends to the building and the ground covered by it. McKim & Kennedy vs. Mason, 3 Md. Oh. Dec. 186. Where the holders of the liens on machinery and fixtures and on the building are different parties, and rent has been received for the use of the whole property by the trustees before the sale under the decree, in appor- tioning such rent, there should be given to the holders of the lien on the machinery such proportion as according to proof they would be entitled to in view of the greater wear and tear of the machinery. Ibid. The lien of the machinist upon a steam engine built at his shop, and then carried to and put up in a factory/ upon which there was a previous mortgage, is not entitled to priority over such mortgage. Denmead et al. vs. Tte Bank of Baltimore, 9 Md. 179. Under the Act of 1845, ch. 176, sec. 4, the lien of the machinist commences as soon as he begins to put up the machine, and is preferred to subsequent liens and incum- brances only, and not to those which are coeval or simul- taneous. Ibid. Coal cars are not subjects of mechanics' lien under the Act of 1845, ch. 176; the word "machine" used in that Act applies only to fixed or stationary machinery, and it does not extend to movable machines. New England Car Spring Co. vs. Balto. & Ohio R. R. Co. 11 Md. 81. LIEN ON BOATS OR VESSELS. All boats or vessels of any kind whatsoever, used or intended to be used on the waters of the Chesapeake Bay MARYLAND CHANCERY PRACTICE. 447 and its tributaries, the Chesapeake and Ohio Canal and other waters of this State, as carriers of freight or pas- sengers, and all other boats or vessels belonging in this State shall be subject to a lien and bound for the pay- ment thereof, as preferred debts, for all debts due to boat builders, mechanics, merchants, farmers or other persons, from the owners, masters or captains, or other agents of such boats or vessels, for materials furnished or work done in the building, repairing or equipping the same. Sup. Code, sec. 44, p. 155. No person shall be entitled to a lien under the preced- ing section, unless he shall within six months from the commencement of the building, repairing, equipping or refitting such boat or vessel, deliver to the clerk of the Circuit Court for the county where the building, repair- ing, equipping or refitting was done, or the Superior Court of Baltimore City, if done in the City of Balti- more, an account or statement certified by the oath of the claimant, taken and subscribed before some Justice of the Peace or other officer authorized to administer an oath, setting forth the names of the claimant and debtor, and if the debt was not contracted by the owner, but by his agent, the name of such agent, the name or other certain description of the boat or vessel, and the place where built, repaired, equipped or refitted, and the par- ticulars or items of the claiim or debt. Sec. 45. The clerks of the several Circuit Courts for the coun- ' ties, and of the Superior Court of Baltimore City, shall each keep a docket to be called boats' lien docket, wherein it shall be the duty of each of said clerks, upon application being made to him in accordance with the requirements of the preceding section, to record the said statements or accounts filed with him, and, immediately 448 MARYLAND CHANCEEY PEAOTICE. thereafter, he shall docket a case between the parties to the claim, entering the claimant as plaintiff, and the boat and its owner and the owner's agent, where the debt was contracted by an agent, as defendant, and the day when such claim was filed and the amount thereof, and the clerk shall be entitled to fifty cents for each entry, to be paid by the defendant and taxed as costs against him, for which and for other costs in prosecuting the claim, the defendant shall be liable, the clerk to be allowed the same fees for recording said statement or account as are now allowed by law for recording deeds or bills of sale. Sec. 46. Every such boat or vessel against which an account or statement shall be filed under this article, shall be sub- ject to a lien for the debt and costs justly chargeable against it for two years from the day on which the account or statement shall be filed, and no longer, but the claimant may have the benefit of any other lien upon said boat or vessel to which he may be entitled by mort-, gage, bill of sale or otherwise. Sec. 47. In the case of Mann vs. Parry, in the Circuit Court of Baltimore City, January Term, 1867, there were excep-. tions to auditor's report. The proceeding was for the foreclosure of a mortgage on the Steamer "Sarah E. Brown." Beacham furnished materials and repaired the steamer. In the distribution, after the sale, he claimed a priority for his "mechanics' lien" over the mortgage, which priority the auditor allowed. The mortgage bore date before the commencement of the work and furnish- ment of the materials by Beacham. He based Ms claim for lien under the Code, Act 1865, ch. 1-90, sees. 44, 45, 46, 47, Art. LXI.; because the mortgage was not re- MAKYLAND CHANCERY PRACTICE. 449 corded until three days after the commencement of the work. The Court (Judge Alexandbe) held that his claim had priority over the mortgage under section 48, which has reference to a mortgage "properly executed and recorded before the lien claim accrues," and that even notice (actual) of an unrecorded mortgage would n'ot postpone the priority of the lien claimant. [There was evidence in the cause, that the lien claimant had notice of the mortgage, and if the Court was satisfied that he had actual notice, then the authorities say that the sole object of recording, to wit, notice, was attained, and any effort to get advan- tage of a mortgage under such circumstances is a fraud and not to be tolerated in a Court of Equity.] "STATUTOEY LIMITATION OF FIVE YBAES." In the Superior Court, Judge Dobbiit decided the case of James S. Forbes vs. Mary E. Myers, executrix of Charles Myers, deceased. The papers in the case show that this litigation has been going on in various Courts of this State between seven and eight years. It commenced by Mr. Forbes filing a mechanics' lien against Charles Myers, for a balance alleged to be due him for carpenter's work, on the 14th of August, 1861. The work was done under a written contract. Forbes then issued a scire facias to enforce his lien against Charles Myers on the law side of the Superior Court, and HEyers' executrix applied to the Circuit Colirt of Baltimore City for an injunction to stay proceedings under the seire facias. Judge Keebs ordered the injunction, which Judge Alex- ander subsequently dissolved, and dismissed the bill. The case was then taken to the Court of Appeals. Forbes 29 450 MARYLAND CHANCERY PRACTICE. then endeavored to enforce payment of his lien under the sd. fa. in the Superior Court, when Myers' executrix moved to quash the scire facias, on the ground that it was a nullity, having been issued against Charles Myers after his death. Judge Maetin sustained the motion and quashed the scire facias. Forbes then filed on the equity side of the Superior Court a bill to enforce his lien claim, and for general relief against Myers' executrix. The prin- cipal defence relied on by Mrs. Myers was that, as more than five years (the time of limitation allowed by the statute) had expired from the time of filing the lien to the time of filing the bill, the lien had ceased to exist and could not be enforced. Judge Dobbin dismissed com- plainant's bill, and decided that , he had no power to enforce the lien and grant relief after five years from the time of filing it ; and that the fact that Forbes had theretofore issued a sci. fa. on the lien, which had been quashed as a nullity by Judge Martin, could not prevent the statutory limitation of five years from destroying the lien, although proceedings under that scire facias had been enjoined by the defendants for several years. The Digests (Maryland) will be found to contain numerous authorities on the subject of mechanic's liens, but it is not considered within the scope of the present work to do more than give the foregoing general reference to the subject. As the remedy is placed within the ordi- nary jurisdiction of Courts of Equity, it could not properly he omitted. The equitable remedy by "bill" is taking the place of the old practice by "scire facias," and it is in the power of a Court of Equity to dispense substantial justice more readily than a Court of Law, in these cases. Original Act in Md. 1838, ch. 205. MARYLAND CHANGEEY PRACTICE. 451 LIEN GENERALLY. Where a lien has been acquired by the levy of an exe- cution on personalty held- by equitable title, such execu- tion gives the party a right to proceed in a Court of Equity to procure the payment of his debt after satisfac- tion of the debt due the party holding the legal title. 23 Md. 294, Bruce vs. Levering. Equitable estate in personalty cannot be sold under a Jieri facias, but a lien is obtained in equity from the time the writ is in the hands of the sheriff, and the Court will permit such creditor to redeem the prior incumbrance or grant a decree for a sale ; and an injunction may be obtained when there is probability of irreparable loss, from the fraudulent conduct of mortgagor, preliminary to such sale. 21 Md. 305. The lien is obtained by issuing and levying the fieri facias. 3 Md. 99. To constitute an equitable lien on a fund there must be some distinct application of the fund by the debtor. It is not enough that the fund may have been created through the efforts and outlays of the party claiming the lien. 1 Wallace, 16. Though an injunction stays an execution, yet the lien of the judgment is not lost or suspended, even during the continuance of the injunction. 8 Md. 427. A judgment is a lien on lands only because they are liable to be sold in satisfaction of the judgment, it is the right to make the debt out of the land which creates the hen? 6 Md. 71. 452 MARYLAND CHANCERY PRACTICE. Rent is not per se a lien on goods found on tte pre- mises : it binds as a lien only when the goods are seized under a distress. 10 Md. 149. Where there is a lien on two different parcels of land, and a junior lien on one of them only, and the holder of the elder claim elects to have his demand out of the land bound by the junior creditor, the latter may have the prior creditor thrown upon the other fund or have the prior lien assigned to him. 11 Md. 465. But this rule does not apply where there are two mort- gagors of distinct estates, (one being surety for the other,) for the payment of the same- debt, and a subsequent mort- gagee has a lien only upon the estate of the principal in the first debt. Ibid. A landlord' has no equitable lien for rent upon property taken under a distress and replevied by the tenant. 15 Md. 260. A party holding a prior lien on land has no right to prevent, by injunction, a subsequent judgment creditor from enforcing his judgment by execution. 8 G. > folio 210, one of the heirs who occupied a dwelling-house, was .decreed to account for the rent during such occupancy, and was charged with, it by the auditor in the distribution of the proceeds of sales. The final decree confirms the partition, and declares that each party shall hold his part in severalty, and the English system of mutual conveyances is not followed. 1 Md. 403. In all cases the decree is final and absolute as well against infants and persons non compos as others. Alex. Chan. Prac. 166. At any time before the final decree exceptions may be filed against the return of the commis- sioners for misconduct or irregularity in the execution of the commission, and perhaps for irregularity in the parti- tion. If the exception is for matter apparent on the face of the proceeding, it is beard at the time of moving for final decree. If matter in pais is relied on, the exceptant must have a commission issued and take testimony in the usual way. Alex. Chan. Prac. -166. In case of an election, the decree states briefly the fact, and then declares that the person so electing shall hold, upon paying down the money or giving bonds in the form prescribed by the decree, and when bonds are author- ized to be given, the decree in conformity with sec. 51 of the Code, Art. XLVII. p. 338, also declares that the bonds so given shall be liens upon the land for the pur- chase of which they were given, until they shall be wholly paid. As a preliminary to this decree, the papers are usually laid before the auditor, who states an account, 32 498 MAEYLAND CHANCEEY PEACTICE. allowing all the costs of the proceeding, and ascertaining the precise sum to which each party is entitled. Alex. Chan. Prac. 169. In cases of partition, as in other cases, illegitimate children and their issue inherit from the mother and from each other and from the descendants of each other. Code, Art. XLVII. sec. 30, p. 334. CHAPTER XXXIX. CONVEESION OF REALTY INTO PEESONALTY, AND VICE VBESA. INFANTS. Whbee an infant is seized of a reversion dependent upon a life estate, the Court may, with the assent of the tenant for life, decree a sale thereof, and order the annual interest, or such part thereof as may be deemed equitable, to be paid to the tenant for life during his life. Art. XVI. sec. 47, p. 81. Upon the death of such infant under age, intestate and without issue, the proceeds of such sale shall descend or be distributed, as the property or estate would if it had not been sold. Sec. 48. Vide 1816, ch. 154, sec. 13. 1831, ch. 311, sec. 9. 1854, ch. 154, sec. 9. 4 Md. Oh. Dec. 171. In general, the Court of Chancery will not suffer the personal estate of an infant to be changed into real, nor his real estate converted into personal. Williams' case, 3 Bl. 186. In those cases where, for the manifest advantage of the infant, the Court will direct the purchase of real estate out of his personalty, it will save the infant's rights by continuing to consider the property as personalty during its infancy. Ibid. In various modes of judicial proceeding, real estate in the hands of an infant heir or devisee, may be converted 500 MARYLAND CHANCERY PRACTICE. into personalty, for the payment of debts, in which cases the surplus, if any, goes as a residuum of the realty to the heir or devisee. Ihid. Jones vs. Jones, 1 Bl. 443. A life interest being extinguished by a sale of the whole estate, upon ratification, is converted, and if the particular tenant should die after that time, his share of the proceeds will survive to his assignee or representative. Ibid. Real estate, in which an infant was interested, was sold under a decree in chancery, and the sale finally rati- fied and confirmed by ord.er of Court. But 4;he pur- chaser afterwards feiiled to comply with the terms of sale, and an order for a re-sale under the Act of 1841, ch, 216, was passed, after which, and before the second sale, the infant died. Held, that the mutation from realty to per- sonalty was not complete at the death of the in&nt, the purchaser not having complied with the terms of sale, and the infant's share of the proceeds of sale passed, as real estate, to the heirs at law. Dalrymple vs. Taneyhill, 4 Md. Oh. Dec. 171. Where lands are devised to be sold to pay a legacy, which is void for its uncertainty, or as being against the policy of the law, conversion does not take place, but to the extent that the devise is -void, the proceeds will descend to the heirs at law. Trippe vs. Frazier, 4 H. & J. 446. Where lands are devised to be sold and invested in personalty, and, as to a part of the income of said invest- ment, there is a void devise, such part is stiU personalty, and passes to the next kin. Dashiell vs. The Attorney General, 5 H. & J. 392 Ibid. 6 H. & J. 1. But where the conversion of realty into personalty is not afiected by will and testament, or the directions of MARYLAND CHANCEEY PEACTIOE. 501 the owner of the property, but is brought about by opera- tion of law, and the eflfect of legal proceedings, (as a sale of land, because of the impracticability of specific parti- tion,) it does not fall within either branch of the general rule. In such case the law will regard the conversion, for some purposes, as tating place when the sale has been ratified, and the purchaser has complied with the terms of it by paying the money, or giving such securities as the decree directs ; but this leaves it an equitable chose in action in the custody of a Court of Equity, not regarded as reduced into possession until the Court has made some order of appropriation, unless the securities of the purchaser are made payable to the party claiming it as personalty. The State vs. Kjebs, 6 H. & J. 31. Leadenham vs. Nicholson, 1 H. & G. 267. Hammond vs. Steer, 2 G. & J. 81. Jones vs. Jones, 1 Bl. 443. Lands devised to be sold generally are considered, in equity, as personalty, and as such pass to those who would be entitled, as if it was in fact personalty. Hurtt vs. Fisher, 1 H. In the Circuit Court of Baltimore City. . C. D. J At the execution of the annexed commission, issued out of the Circuit Court of Baltimore Citj, and to us directed, empowering us to examine witnesses in the above entitled case, we L. M. and S. R., the commissioners in the said commission named, being also the standing commissioners of the said Court, duly appointed, qualified and sworn, met on the day of , in the year of our Lord, eighteen hundred and sixty , at the olHce of in the City of Baltimore and State of Maryland, and assigned the day of in the same year, at ten in the forenoon, and the same place as time and place for the examination of wit- nesses, under the said commission ; at which last mentioned time and place the commission met, pursuant to notice, and we pro- ceeded, in the presence of the solicitors of the respective parties, to take the following depositions, that is to say : (Where the commission is directed to the standing commis- sioners, and is executed by one of them only :) '■and directed to L. M. and S. R.. they being the commissioners in the said commission named, and being also the standing commis- sioners of the said Court, duly appointed, qualified and sworn, I, the said L; M., one of the said commissioners, in the absence of the other commissioner, who was unable to attend the execution thereof, met," &c. (Where it is addressed to one standing commissioner :) " and to me directed, empowering me to examine witnesses in the above entitled case, I, L. M., the commissioner in the said commis- sion named, being also a standing commissioner of said Court, duly appointed, qualified and sworn, met," &c. (Where it is addressed to a commissioner other than a standing commissioner:) "and to me directed, empowering me to examine witnessess in the above entitled case, I, 0. P., the commissioner in the said commis- sion named, having first duly taken the oath to the said commis- sion annexed, met," &c. 540 MARYLAND CHANCERY PRACTICE. (The clause, " In the presence of the solicitors of the respective parties," will be varied or omitted, according to the circumstances.) 0. M., a witness of lawful age, produced on behalf of the Oom- phmant, being by us first duly sworn on the Holy Evangely of Almighty God, being examined on the following interrogatories to him propounded in that behalf, makes oath, deposeth and saith as ' follows, that is to say : First Iriierrogaiory: State your residence and occupation. 1. Answer — " I reside at," &c. Second Interrogatory : Do you know the parties, &c. &c.? Oross- Examined for Defendant. First Cross- Interrogatory : (Proceed as before.) (Where the witness is a Presbyterian :) 0. M., a witness of lawful age, produced on behalf of the Com- plainant, being by iis first duly sworn with uplifted hand, that being the method of administering an oath most binding on his con- science, being examined on the following, &c. (Where the witness is a Jew :) M., a witness of lawful age, produced on behalf of the com- plainant, being by zts first duly sworn on the Five Books of Moses, (he -being of the Jewish religion,) being examined on the follow- ing. &c. (Where he has conscientious scruples against taking an oath :) 0. M., a witness of lawful age, produced on behalf of the com- plainant, being by us first duly affirmed, (he having conscientious scruples against taking an oath,) being examined on the following interrogatories to him propounded in that behalf, deposeth and saith as follows — that is to say : (Where a party to the suit is examined :) 1. A. B., of lawful age, the complainamt in this cause, appearing before us a witness on behalf of the complainarit, being by vs first duly sworn on the Holy Evangely of Almighty God, being exam- ined on the following interrogatories to him propounded in that behalf, makes oath, deposeth, and saith as follows — that is to say : 2. A'. B., of lawful age, the oomplairuint in this cause, being pro- duced as a witness on behalf of the defendant, being by us first duly sworn on, &c. APPENDIX. 541 Where a witness is recalled, or his examination is continued for more than one day, the interrogatories should, notwithstanding, be regularly numbered from first to last as if the examination had been continuous. His re-call may be noted thus : 0. M., a witness heretofore produced, sworn and examined on behalf of the complAmumt, being now again examined on the fol- lowing interrogatories to him propounded in that behalf, or, "being now cross-examined on the following cross-interrogatories to him propounded on behalf of the defendant," makes oath, deposeth, and saith as follows — ^that is to say : Ninth Interrogatory : Do you or not know, &c. ADJOUENMENTS. The commission was then adjourned to the day of in the same year, at four in the afternoon, and the same place ; at which last mentioned time and place the commission met, pursuant to notice, for the examination of witnesses on behalf of the com- plainant, and no witnesses appearing before ms, we adjourned the commission to the day of , in the same year, at ten in the forenoon, and the same place ; at which last mentioned time and place the commission met, pursuant to notice, and we pro- ceeded, in the presence of the solicitors of the respective parties, to take the following depositions — that is to say : CONCLUSION No other witnesses being named or produced to us, we then, at the request of the solicitors of the respective parties, closed the said commission, and now return it closed under our hands and seals on this day of , in the year of our Lord eighteen hundred and sixty , at the City of Baltimore, in the State of Maryland. L. M. [Seal.] S. R. [Seal.] Commission ers. A list of the exhibits must then be made in the following form : There are seventeen exhibits to this commission, to wit : Complainant's Exhibits, Commission, Nos. 1 to 12 inclusive. Defendant's Exhibits, Commission, Nos. 1 to 4 inclusive. Defendant's Exhibit A. L. M., S. R, CommissioTiers. 5 42 MARYLAND CHANCERY PRACTICE. If any of the exhibits have been previously filed with the bill or answer, state it thus : Defendant's Exhibit A has been previously filed with the . EXHIBITS. Every exhibit must be marked by the commissioners for the pur- . pose of identifying it, and also with the date when it was filed, in some such manner as the following : Complainant's Exhibit, Commission, No 1, Filed with Commissioners, December 10, 1867. L. M., S. R., Commissioners. But if the exhibit has been already filed with the bill or answer, the commissioners must retain its old designation, and merely add . the date when it was filed with them. If the exhibit be liable to injury, or be written on a small piece of paper, such as a promissory note, .&c., it must then be fastened to a half sheet of paper, by sewing, or some other slight manner, so that every part of it may be examined without difficulty; the paper must then be folded, and endorsed in some such form as the following : (This in addition to the comnlissioners' entry on the exhibit itself ) 240 1867. A. B. vs. CD. Complainant's Exhibit, Commission, No. 1. Filed with Commissioners, December 10th, 1867. L. M., S. R., Cormnissioners The exhibits will then be placed in an envelope, open at each, end, to be endorsed in some such way as the following : APPENDIX. 543 240 1867. A. B. vs. C. D. EXHIBITS TO COMMISSION. Complainant's Exhibits, Commission, Nos 1 to 12 inclusive. Defendant's Exhibits, Commission, Nos. 1 to 4 inclusive. Defendant's Exhibit A. Total 17 Exhibits. After signing and sealing the certificate for return, endorsed on the commission, and endorsing upon it the bill of costs, and fasten- ing the return to the commission, the commissioners will return it with the packet of exhibits, the whole in one envelope, in the usual manner. 1. All commissions must be executed with interrogatories, and the order of the Court strictly forbids any other manner 2. The return of a commission must be written on one side of the paper only. (Except when the commission is executed out of the City of Baltimore.) 3. Each page of the return must be numbered, and the name of the witness must be written at the top. 4. "Where the testimony is voluminous, and there are many wit- nesses, an index must be annexed to the return. 5 The return must be written in a plain, fair hand writing, on the best paper, fourteen inches long by eight and a half inches wide, with a margin (so as to admit of being bound together) one and one-half inches wide, the commission annexed, and the whole securely stitched, or bound together, the whole length of the paper. 15. The parties have a right to be present at the execution of a foreign commission, and to reasonable notice of the time and place appointed for the execution thereof. But they may agree to dis- pense with such notice, and that the witnesses may be examined on interrogatories annexed to the commission, as heretofore has been practiced In this case, the party asking for the commission, before taking out the same, shall file his intorrogatories, and serve 544 MAEYLAND CHANCERY PRACTICE. a copy of the same on the adverse party or his solicitor, who shall, within ten days after service of said copy, file his cross-interroga- tories to the witnesses proposed to be examined by the party ask- ing for the commission, and also interrogatories for the witnesses proposed to be examined on his part, and shall serve a copy thereof on the party first moving as aforesaid. Other ten days shall, in like manner, be allowed to the said party first moving, for filing further interrogatories to his witnesses, and cross-interrogatories for the witnesses to be examined on the part of the adverse party, and other ten days shall, in like manner, be allowed to such adverse party for filing further interrogatories to the witnesses proposed to be examined on his part. Copies of all such interroga- tories and cross-interrogatories shall be annexed to the commission and the examination shall be limited to the same, and to the wit- nesses named therein. 16 Where the commission is to be executed within the jurisdic- tion of the Court, it shall be delivered'by the clerk to the commis- sioner, or to one of the commissioners, where it is issued to several persons. And such commission shall be executed and returned at or before the commencement of the second term after the issuing thereof, unless the time for execution and return of said conomis- sion shall be extended by order of the Court 17. Where the commission is to be executed at any place beyond the jurisdiction of the Court, the carriage of the commission shall be intrusted to the party applying for the same, and he shall be responsible for the return thereof. Every such commission shall be executed and returned within three months from the issuing thereof, unless further time is allowed by order of the Court. 18. A rule for the return of a commission may be entered on the docket, by any party, at any time after the expiration of the day on which it is regularly returnable, and where the commission is to be executed within the jurisdiction of the Court, a copy of the rule shall be served on the commissioner. Where the commission is to be executed beyond the jurisdiction of the Court, the copy of the rule for the return thereof may be served on the commissioner or on the party charged with the carriage and return thereof. 19. The commissioner, or where it is issued to more than one person, any one of them, may act as clerk to the commissioner. But in such case no additional allowance shall be made for clerk hire in the taxation of costs. Nor shall any allowance be made to APPENDIX. 545 any commissioner who does not actually join in the execution of the commission. 20. Several commissions may be issued for examination of wit- nesses in several places. But after the return of one commission executed, no other commission shall issue unless by special order of the Court. 21. Any party, on giving a receipt for the same, may take out of the office any exhibits by him filed for the purpose of proving the same under a commission. 22. Each standing commissioner, before he proceeds to act as such shall, in addition to the usual oath to support the Constitution of the United States, and the usual oath of allegiance to the State of Maryland, take the following oath or affirmation, to wit: "You shall, according to the best of your skill and knowledge, truly, faithfully, and without partiality to any or either party, take the examinations and depositions of all and every witness and witnesses produced and examined by virtue of any commission directed to you from or by the direction of the Circuit Court of Baltimore City, or under any order of the said Court for taking depositions, touching any matter depending in said Court, during the time you may continue by your ap.pointment to act as commis- sioner, upon any interrogatories produced to and left with you by either party before such commission or examination shall be closed. So help you God." 23. The said oath or affirmation shall be taken and subscribed by the commissioner in the Common Test Book of the Court. And he shall thereupon be authorized without any further qualification, to execute any commission which may be issued out of this Court for examining witnesses in a cause therein depending, and to take depositions in execution of any order which may be passed by this Court for this purpose. '24. If the commission is returned before or on the seventh day of the sittings of a term, the cause shall stand for hearing at the succeeding term. In the meantime all objections for want of regu- larity in the execution or return of the commission must be made by exceptions in writing, and filed in the cause. If not so made and filed within the time thus limited, they will be treated as waived But the time for filing such exceptions may be enlarged by special order of the Court. 35 546 MAKYLAND CHANCERY PRACTICE. 25. At tte commencement of each term, a calendar of causes and motions standing ready for hearing during the term, shall he prepared by the clerk, and said causes and motions shall be heard during the sittings of the term in due order as they stand on said calendar, or on application a special day may be assigned for hearing any cause or motion. But no case shall be placed on the trial calendar until after the complainant or the defendant shall have filed a printed brief &s provided for in the twenty- eighth rule ; and if either party file a brief before the commence- ment of a term the other party will not be heard unless such party file a brief within the first ten days of the term If either party argue any cause during the sittings of the term the Court will decide the cause at the end of the sitting as if argued by both parties. 26. When a particular day shall be appointed on the application of counsel for the hearing of any cause or motion, if the said cause or motioa shall not on such day be called, and heard or postponed^ the same shall be considered as continued, and shall not be heard during the term (unless in case of sickness or unavoidable accident) without the consent of the opposite party and the leave of the Court. 27. The absence of counsel or of a party appearing without counsel, (except in cases of sickness or unavoidable accident,) shall not be considered as a ground for continuance. And when two or more solicitors appear for any party, the attendance of one shall be sufficient to prevent a continuance on account of the absence of the other from whatever cause. 28. In trial causes which may be submitted, the Court will expect to be furnished with notes or with a brief abstract of the object of the bill or of the grounds of the defence, with a state- ment of the points or propositions relied on, and references to the adjudged cases upon the subject. 29. On any application for a postponement or continuance for want of testimony or other cause, or on any application to remand a commission or to have a new commission issued for the purpose of taking further testiniony, the opposite party may require an affidavit or other proof of the reasonableness of the application, and of the nature of the testimony wanted and the circumstances which may have prevented its being procured in time. APPENDIX. 547 30. Where any rule, which may be entered on the docket with- out application to the Court, i3 required to be served on a party appearing by counsel, residing or having an office or place of busi- ness within the City of Baltimore, service shall be made personally on the counsel, or by leaving a copy of the rule at his office. If the party is not represented by counsel as aforesaid, the copy may be served on him personally, or left at his usual place of abode, or deposited in the post-office, addressed to him at Baltimore. But if said party, not having counsel as aforesaid, does not himself reside within the City of Baltimore, he may, by entry on the docket, designate some certain place within said city, where the copy of any rale shall be left for him, and in this case a copy left at said place shall be treated as service on said party, or he may name his usual post-office, and in this case service of the rule shall be made by depositing in the post-office in Baltimore a copy of the rule addressed to hiui at his usual post-office. This rule- will not extend to any special rule or order passed by the Court. 31. Where a bill is filed for an injunction to stay execution of a judgment at law, on the ground of partial payment or credit, or other equity affecting a part only of the judgment, the complain- ant will be required to exhibit a statement showing the balance which would remain due on the judgment, after discounting there- upon the allowances claimed, and to pay or bring into Court to be paid to the defendant, such balance. 32. On filing an answer to a bill or petition for an injunction, the defendant may enter on the docket a motion for dissolution of the said injunction, which shall regularly stand for hearing at the next succeeding term, or he may, on application, have a day assigned for the hearing thereof. And either party may thereupon obtain an order for taking depositions to be read at the hearing of the said motion. Said depositions may be taken before a standing commissioner of this Court, or before any Justice of the Peace in the City of Baltimore, or elsewhere in this State. Or a commission may be obtained for examining witnesses residing out of the juris- diction of the Court. 33. On motion to dissolve an injunction, if the complainant shall not appear on the day assigned for hearing thereof, the opposite party may argue the motion orally, or by note in writing, or sub- mit it to the Court, which will thereupon proceed to consider and determine the same. 548 MARYLAND CHANCERY PRACTICE. 34. On the filing of an auditor's report, it shall be entered on a calendar to be kept in the clerk's office. In the ordinary case of an account applying the proceeds of sale of a mortgaged estate, or of a sale made under a decree on a creditor's suit, or for partition, or the like, where no question is raised by the pleadings or sug- gested by the auditor, the report shall stand regularly for con- firmation after the tenth day reckoning from the day of filing thereof. In controverted cases, or where any question is stated by the a;iditor, or exceptions are filed, the report shall remain during the first seven days of a term for exceptions or further action by the parties, after which it shall stand regularly for hearing. Or on application a special order may be passed for that purpose. 35. In any case for partition, wherein other provision may not be made by the Article XL VII. of the Code of Public General Laws concerning inheritance, the report of . the commissioners appointed to make partition shall not be submitted for final decree until after it shall have remained in the office during the first seven days of a term. 36. No decree will be passed on any complete and final award made by the person to whom a cause hath been referred by rule or order of the Court, unless the said award shall have been filed and docketed, and shall have remained in Court during the first seven days of a term without exceptions and at least fifteen days notice of the filing of said award shall have been given to the adverse party or his solicitor. 37. No officer of this Court or his deputy shall be admitted as a surety in an appeal bond or injunction bond or any bond required to be given for the performance of any decree or order of the Court. 38. On the report of any sale of real estate made under the authority of this Court, an order will be passed for ratifying the said sale on some certain day named in the order, and not less than offe month after the date thereof, and directing a copy of said order to be inserted in some daily newspaper printed in the City of Baltimore, at least once in each of three successive weeks before the expiration of one month from the date of said order. And if no exceptions be filed or cause exist for setting aside the said sale, the same will at any time after the day so named, and on the application of any person interested therein, be absolutely ratified and confirmed. But with the consent of the parties materially On the first $300, 9 second $300, 8 third $300, 7 fourth $300, 6 fifth $300, 5 sixth $300, 5 seventh $300, 4 eighth $300, 4 ninth $300, 3J tenth $300, Si APPENDIX. 549 interested therein, a special order may be obtained for ratifying a particular sale. 39. On sales under decrees or orders of this Court, the following allowances will be made to the trustees, &c.: per centum $27.00. 24.00, in the whole $51.00 21.00: 72.00 18.00 90.00 15.00 105.00 15.00 120.00 12.00 132.00 12.00 144.00 10.50 154.50 10.50 165.00 and four per cent, on the proceeds .of sales above $3,000, besides an allowance for expenses not personal The above allowance subject to be increased in cases of postpone- ment at the request of the defendant, or of extraordinary difficulty or trouble from other circumstances, and to be lessened in case of negligence or other default of the trustee, at the discretion of the Court. Whenever the trustee shall advertise mortgaged premises for sale, and the defendant shall pay the amount due before sale, the trustee shall be allowed one-half commissions after the foregoing rates on the amount due, which said allowance shall be paid by the defendant. 40. The allowance to a healthy widow in lieu of her right of dowpr in land sold under a decree of this Court shall be as follows: If she be under 40 years of age, not more than one-seventh. If above 40 and under 45, not more than two-fifteenths. If above 45 and under 51, not more than one-eighth. If above 51 and under 56, not more than one-ninth. If above 56, not less than one-tenth of the net proceeds of sale, out of which she may be dowable 41. The allowance to a healthy tenant by the curtesy shall be three times as much as would be allowed to a widow of the same age. 42. In a case against a non-resident, and in any other case in which the complainant may ask for a decree pro con/esso, the Court 550 MAEYLAND CHANOEEY PEACTICE. will expect the facts alleged in tte bill to be verified by the oath of the complainant or other probable evidence. 43. All moneys or securities brought into Court under any order thereof, shall be deposited in the Chesapeake Bank, the Marine Bank, or the Bank of Commerce, to the credit of the cause wherein such order shall have been passed, and there remain subject ttf the order of this Court. The original order signed by the Judge of this Court, together with the check of the clerk in the usual form shall be the authority to the bank for the payment of money or delivery of a security deposited as aforesaid. The clerk shall procure a suitable check or pass-book, in which shall be entered, under the appropriate head, all sums and securi- ties deposited, and. all sums and securities checked out And in said book it shall be his duty to record the order of the Court and his own check, in virtue of which any money or security may be withdrawn, and also the receipt for such order and check, which shall be signed by the person to whom the same shall be delivered, and at the time of delivery thereof. All checks shall be drawn payable to the order of the person or persons to whom such payment or delivery is directed to be made. 44. Every investment under authority of this Court unless other- wise specially ordered by the Court, shall be made in the inscribed debt of the State of Maryland, or of the City of Baltimore, at the election of the trustee or the person making the investment. The certificate shall import on its face that it is made by the trustee, and is to be subject to the order of the Court. If the public authority issuing the certificate shall decline to issue it in said form, the trustee, immediately on procuring the same, shall endorse thereon that the investment is made by order of this. Court of a certain date and passed in a certain cause, and is to be subject ■ to the order of the Court to be passed in said cause. Every investment must be reported to the Court for ratification thereof. The certificate of investment shall accompany tlie report, and on approval thereof by the Court, shall be deposited in bank to the credit of the cause for account whereof it shall have been made. 45 In all cases of appeal from a decree or order of this Court, before the appeal bond, required by Article V. of the Code of Public General Laws, to stay execution thereon or suspend the APPEIfDIX. 651 operation thereof, shall be approved, the clerk, together with the eo^dorsement thereon of the sufficiency of said bond, shall also endorse thereon that the affidavit as required by Act of Assembly, 1864, chap. 322, Public General Laws, Article V. sec. 32, has been filed in said cause. 43 In all cases in which commi^ons shall issue to appoint a guardian to answer for infants as prescribed by Act of Assembly, 1864, chap 89, Public General Laws, Article XVL sec. 89, the mode of authenticating the execution of such commissions, shall be the certificate of the commissioner or commissioners named therein, under his or their hand aftd seal, of the due execution thereof. 47 In all cases in which by order or decree of this Court any matter is required to be published in a newspaper or newspapers, the following charges and rates shall be allowed for such publica- tion to the party or parties required by said order or decree to make said publication, viz: One square, containing eight lines, one time $ 50 " two times 75 " three times 1.00 " one week 1.75 " one month 4.00 " three months 10.00 •' six months 15.00 48. Notices, copies of orders, and of other papei's, which are, or may be required, to be served on parties, shall be served by the messenger of tliis Court : 49. The following allowances will be made to auctioneers for offering and selling real and leasehold estate under decrees of this Court : For offering where no sale is effected $10.00 For the first piece sold at any offering, where the amount of sale is not above $500 10.00 Where above $500 and not over $1,000 15.00 Where above $1,000 and not over $3,000 20.00 Where above $3,000 and not over $5,000 25.00 Where above $5,000 and not over $10,000 30.00 Where above $10,000 and not over $30,000 50.00 Where above $30,000 and not over $50,000 75.00 When over $50,000 100.00 552 MARYLAND CHANCERY PRACTICE. Provided that in cases where more than one piece shall be sold under the same decree at the same time and place ; and the aggre- gate of allowances by the above scale shall exceed $100, then the said allowances shall be the subject of modification according to the circumstances of each case. 50. In all cases of application for a divorce, the commission to take testimony, shall in every instance issue to one of the stand- ing commissioners of the Court. 51. Relates to " change of name," and is printed on page 409, ante. FORMS. No. 1. Order to enter Appearance. A ) In the Ciecuit Court of Baltimore City, vs. B J • Term, 186 Mr. Clerk, Enter my appearance for defendant. No. 2. Equity Subpoena. The State of Maryland, To of BaUimore OUy, G-reetivg: We Command and Enjoin You, that all excuses set aside, you be in your person before the Judge of the Superior Court of !3alti- more City, at the Court House in said City, on the second Monday of next, to answer the complaint of against you in said Court exhibited. Hereof fail not, as you will answer the con- trary at your peril. Witness, the Honorable , Judge of our said Court, the day of 186 Cl&-k. 554 MARYLAND CHANCERY PRACTICE. No. 3. Attachment in Equvy. MARYLAND, So. State of Maeyland, to the Sheriff of BaUimore City, Greeting: You ABE HEREBY COMMANDED, That you attach the bod of if he shall be found in your bailiwick, and h — safe keep, so that you have h — before the Judge of the Circuit Court of Baltimore City, at the Court House in the same city, on the day in next, for to answer as well touching a certain contempt by h committed in not to the bill of complaint of — — against h in the said Court exhibited, as to such oiher matters and things as shall be then and there alleged against h m. Hereof fail not, as you will answer to the contrary at your peril. Witness the Honorable Judge of our said Court, the — day of 18 • Issued the day of , 18 No. 4. Rule for Searing. In thbCiectjit Court of Baltimore City. Term, 186 Ordered by the Court, this day of — — 186 , upon the motion of the — — Solicitor, that th« above caase be set down for hearing on the day of 186 . Frmided, a copy of this order be served on the opposite party or its Solicitor, on or before the day of 186 APPENDIX 655 No. 5. Order for Injunotion and Receiver. In thb Circuit Coubt of Baltimore City. vs. Term, 186 On the foregoing bill and exhibit it is this day of - 186 ordered that be and he is hereby appointed Eeoeiver, with the power and authority to take charge and possession of the goods, wares, and merchandise, books, papers and effects of or belonging to the said and to collect the outstanding debts due to the said and the said hereby required to yield up and deliver to the said receiver, the goods, wares, and merchan- dises, books, papers and effects of the said subject neverthe- less, to the further order of this Court. And it is further ordered that before the said proceeds to act as receiver by virtue of this order, he shall give bond to the State of Maryland in the penalty of 'Dollars with a surety or sureties to be approved by this Court, or the clerk thereof, and con- ditioned for the faithful performance of the trust reposed in him by this order, or which may be reposed in him by any future order or decree in the premises. And it is further ordered that a writ of Injunction be issued, as is prayed in said bill, upon the filing of a bond by the complainants in the penalty of dollars with security to be approved by the clerk of this Court ; but liberty is hereby reserved to the defendants to move for the rescinding of this order, and for dissolution of the Injunction to be issued as aforesaid, at any time after filing answers to said bill, on giving the complainant five days previous notice of such motion. And the clerk is hereby directed to annex a copy of this order to the writ of Injunction. 556 MARYLAND CHANCERY PRACTICE. No. 6. Order for hearing motion to dissolve Injunction. In the CousT of Baltimore City. ! IN EQUITY, i The defendant having filed h — answer and entered on the docket a motion to dissolve the Injunction heretofore issued in this cause. It is thereupon, this day of 186 , ordered that the said motion stand for hearing on the day of 186 provided a copy of this order be served on the complainant or h Solicitor, on or before the day of 186 And it is further ordered that the parties be and they are hereby authorized to take testimony before on giving -■ — days notice thereof to the adverse party. And that the same be used at the hearing of the motion to dissolve the Injunction, subject to all legal exceptions ; provided the said testimony be taken and filed in the clerk's oiEc on or before the No. 7. Injunction Bond. Know all men by these peesents, That we, are held and firmly bound unto the State of Maryland, in the full and just sum — — dollars, current money, to be pa-id to the said State, its attorney or assigns; to which payment well and truly to be made and done, we bind ourselves and each of us our and each of our heirs, executors and administrators, firmly by these presents. Sealed with our seals and dated this day of in the year eighteen hundred and sixty . Whereas the above boniid about to obtain an injunction. Now the Condition of the above Obligation is sfMih, That if the said shall prosecute the said bill of Injunction with effect and satisfy and pay all costs, damages and charges that shall accrue APPENDIX. 557 in said Court, or be occasioned by issuing of said writ, unless the said Court shall decree to the contrary, and shall in all things obey such orders and decree as the Court shall make in the premises ; then this obligation to be of none effect, else to be in full force and virtue. , Signed, Sealed and Delivered in the presence of [SEAL.J [seal.] [seal.] State of Maeyland, Faltimoee City, Sot. On this day of 186 personally appeared before me the subscriber, Clerk of the Superior Court of Baltimore City, the within named securities, each, of whom makes oath on the Holy Evangely of Almighty God, that he is worth the sum of dollars, the penalty set forth in the within bond, over and above all his just debts and liabilities. No. 8. Receiver's Bond. Know all Men by these Presents, That we, of the City of Baltimore, and State of Maryland, are held and firmly bound unto the State of Maryland, in the full and just sum of dollars, current money, to be paid to the said State of Maryland, or itfl certain attorney ; to which payment well and truly to be made and done, we bind ourselves, and each of us, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents Sealed with our seals day of iu the year of our Lord one thousand eight hundred and sixty Whereas, by an order of the Circuit Court of Baltimore City, bearing date on the day eigheen hundred and sixty and passed in a cause in the said Court, wherein are complainant , and are defendants, the above bound has been appointed receiver. 558 MARYLAND CHANCERY PRACTICE. Now the Condition of the above Obligation is such, That if the above bounden do and shall, well and faithfully perform the trust reposed in him by said order, or chat may be reposed in him by any future order or decree in the premises, then the above obli- gatil)n to be void, otherwise to remain in full force and virtue in low. [seal.] [seal.] [seal.] [seal.] State of Maryland, Baltimore City; sot. I hereby certify, that on this day of 186 , personally appeared before me, the subscriber, a Justice of the Peace of said State, in and for said city, ■ and made oath on the Holy Evangely of Almighty God, that he knows the pecuniary circum- stances of the within named sureties, and that they are worth the amount of the penalty set forth in the within bond, over and above their just debts and liabilities. No. 9. Trustee's Bond under Decree in Equity. Know all Men by these Presents, That we, of and State of Maryland, are held and firmly bound unto the State of Maryland, in the full and just sum of dol- lars, to be paid to the said State or its certain attorney ; to which payment well and truly to be made, we bind ourselves and each of us, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this day of eighteen hundred and Whereas, the above bounden by virtue of a decree of the honorable the h been appointed trustee to sell Now the Condition of the above Obligation is such. That if the above bounden do and shall well and faithftlly perform the trust reposed in h by said decree, or that may be reposed in h by any future decree or order in the premises, then the above APPENDIX. 559 obligation to be void, otherwise to be and remain in full force and virtue in law. Signed, Sealed and Delivered ) in the yrttence of J TsEAL 1 [seal.] [seal.] No 10. It Commission to assign Ghmrdian under Art. XVI. sec. 39. Baltimore City, Sct: The State of Maryland, To of , Gentleman: Whereas, ha lately exhibited h bill of complaint before us in the Circuit Court of Baltimore City, against , defendant. But forasmuch as the said an infant under age and cannot answer the said bill, nor defend this suit without having a guardian assigned in that behalf^ — Know ye therefore, that we have given unto you full power and authority, in pursuance of the special order in our Court, to assign and appoint a guardian to the said infant; therefore, we command you, that at such certain day and place as you shall think fit, you go to the said infant if he can- not conveniently come to you, and assign and appoint a guardian for the aforesaid infant , and take the answer of the said infant by such guardian to the said bill, on such guardian's corporal oath, upon the Holy Evangely of Almighty God, to be administered by you, the said answer being distinctly and plainly written, and when you shall have taken such answer you are to send the same, closed up in your hand and seal, together with your certificate of having assigned and appointed such guardian as aforesaid, and this writ, unto us in our Court. Witness the Honorable , Chief Judge of the Supreme Bench of Baltimore City, the of in the year eighteen hundred and sixty Issued day of Anno Domini 186 Clerk 560 MARYLAND CHANCERY PRACTICE. No. 11. Answer of Guardian. To THE HONOBABLE THE OOUET OF BaLTIMOEE CiTY ; The subscriber, being the commissioner named in the annexed commission, hereby certifies that in execution of thp powers thereby vested in me, I did, on the — day of , proceed to , in the City of Baltimore, where , the infant named in said com- mission, then, and caused the said infant to be brought before me, and then and there, in the presence of the said infant assigned and appointed , of Baltimore City, guardian to the said infant and took the answer of the said infant by h — said guardian, and under the oath of said guardian, by me administered, to the bill of complaint in said commission mentioned, which said answer, with said commission is herewith returned. Closed under my hand and seal this day of . , Oom/missioner. [sEAit.] To THE HONOEABLE THE CoUET OF BaLTIMOEE CiTY : The answer of , infant under the age of twenty-one years, by , his guardian, to the bill of complaint of against in this Coiirt exhibited . The defendant cannot admit any of the matters and things alleged in said bill, and being infant of tender years, submits h — rights to the protection of this Court. , Qvn/rdian. On this day of , 186 — , the above named guardian, appeared before me, commissioner, and made oath that the matters and things stated in the foregoing answer are true to the best of his knowledge and belief. APPENDIX. 561 No. 12. Trustee's Report. vs. > In the Oiscuit Cotjet of Baltimoke City, to the honoeable , judge of the oleoult cotjet op Baltimore City. The report of trustee, appointed by the decree in this cause, bearing date the day of , in the year of our Lord one thousand eight hundred and sixty , to make sale of certain estate in the proceedings in said cause mentioned, humbly sheweth, that after giving bond with security for the faithful discharge of trust, as prescribed by said decree, which duly approved, and giving notice of the time, place, manner and terms of sale, by advertisements inserted in the news- papers published in the City of Baltimore, for successive weeks preceding the day of sale affidavit. State of Maeyland, City of Baltimoee, Sot. On this day of , in the year of our Lord one thousand eight hundred and sixty , before me, the subscriber, a Justice of the Peace of said State, in and for said city, personally appeared the within named , trustee, and made oath in due form of law that the matters and things stated in the foregoing report are true to the best of knowledge, information and belief, and that the sale therein reported fairly made. J. P. vs. )■ Oedee Nisi. Ordered, that the sale made and reported by trustee, for the sale of — be ratified and confirmed, unless cause to the contrary thereof be shown on or before the day of next, provided a copy of this order be inserted in some newspaper printed at once in each of three successive weeks before the day of next. The report states the amount of sales to be $ . 36 562 MARYLAND CHANCERY PRACTICE. riNAti OE.DER. Ordered, that the sale above reported be and the same hereby ratified and confirmed, no cause to the contrary having been shown, although notice appears to have been given as directed by the foregoing otder. The trustee — • — - allowed for commissions and all expenses, on exhibition of his vouchers to the auditor. No. 13. Attachment against Trustee for not reporting. The State of Maryland, To the Skeriff of BaUimore City, QreetiTig : You are hereby commanded, that you attach the body of ■ -, if he shall be found in your bailiwick, and him safe keep, 80 that you have him before the Judge of the — Court of Baltimore City, at the Court House in the same city, on the day in next, to answer as well touching a certain contempt by him committed in not filing his report of the trust in the case of the deed of trust from to him , and as to such other matters and things as shall be then and there alleged against him. Hereof fail not, as you will answer the contrary at your peril Witness, the Honorable , Judge of our said Court, the day of in the year of our Lord eighteen hundred and sixty . Issued the ' day of 186. APPENDIX. 563 Xo. U. Wi'it de Lunatico Inquirendo. « Maryland, Sct. The State of Maryland, To , Sheriff of BaUinu/re City, OreeUngr Bdbause we have received informatioa that , of said city, now is and for some time past has been so far deprived of his reason and understanding that he is unfit and unable to govern himself or manage his affairs, to his own great detriment and our manifest prejudice, and we being willing to take care for the indem- nity of him, the said , in this behalf, command you that you diligently inquire by the oaths of honest and lawful men of your bailiwick, by whom the txuth of the matter may be better known, whether the said be so far deprived of his under- standing that he is altogether unfit and unable to govern himself or to manage his affairs, as before stated, or not ; and if he be, then from what time and how long, and in what manner ; and if he enjoys lucid intervals ; and when the said being in such condition aliened any lands or tenements? and if so, then what lands and what tenements, and where and when? and to whom or what persons, and in whose hands or what person's hands the lands and tenements so aliened are ? and how and in what manner: and what lands and what tenements yet remain, and of whom or what persons, as well the lands and tenements so aliened, as the lands and tenements so retained to himself are holden ; and by what persons and how ; and in what manner, and how much they are worth by the year in all issues, and who is next of kin and of what age And the inquisition hereof distinctly and plainly made, send to our Judge of the Circuit Court for Baltimore City, under your hands and seals, and the hands and seals of those by whom the said inquisition is made and taken. Witness, the Honorable , Judge of the Circuit Court for Baltimore City, the day of , A. D. 186 . Issued the day of , A. D. 186 . Clerk. 564 MARYLAND CHANCERY PRACTICE. No. 15. Return, &c., to Writ de Lmiatico Inquirendo. This Inquisition, taken this , in the year eighteen ■hundred and sixty , at , in the City of Baltimore in the State of Maryland, before , Esquire, the sheriff of the said city, in virtue of the annexed Writ de Lunatico Inquirendo to him directed, issued out of the Circuit Court of Baltimore City, upon the oaths or affirmations of , good and lawful men of the bailiwick, who being sworn and charged upon their oaths and affirmations to inqtiire, &c. &c. Witnesseth : That the said jurors aforesaid do find that the said — in the said writ named, is of unsound mind and a lunatic, without lucid intervals, so that he is not capable of the government of him- self or the management of his estate, and that he hath been in such state of mind for jnore than past, but how he became so, the jurors aforesaid cannot say, unless by the visitation of God. And the jurors aforesaid do also find that the said is seized and possessed of a very large and valuable estate, real and personal, situate and being in this city and elsewhere, but the par- ticular description, amount and value thereof, they are unable at this time to ascertain ; nor do they find that he hath, when in such unsound state of mind alienated any part thereof. And the jurors aforesaid do also find that the nearest of kin to : is , and that his nearest heirs at law, , all of them are of full age. In witness whereof, as well the jurors aforesaid, as the said Esq., sheriff, have hereto subscribed their names and affixed their seals the day and year first therein mentioned. [Here follow the jurors' names.] [seal.] [seal.] [seal.] APPENDIX. 5(55 No. 16. Commission to take Testimony. The State op Maryland, To Esqr , Commissioner named on the part of the complainant , and defendant know ye, that you are appointed commissioner to examine wit- nesses in a case depending in the Court of Baltimore City, on the equity side thereof, between • complainant and • defendant . Therefore you are requested, after having taking the oath hereunto annexed, and also administered the annexed oath to the person whom you shall appoint as clerk to attend the execution of this commission, that at such time and place as to you shall seem convenient, you cause to come before you all such wit- nesses as shall be named or produced to you, either by the com- plainant , or defendant , and that you examine them upon their corporal oaths, to be by you administered on the Holy Evangely of Almighty God, touching their knowledge or remem- brance of anything that may relate to the cause aforesaid: and having reduced the depositions of the witnesses so taken by you into writing, you send the same, with this commission, closed under your hand and seal to the Judge of the said Court, with all con- venient speed Witness the Honorable Judge of our said Coui-t, the day of in the year . UOMMISSIONER S OATH You shall, according to the best of your skill and knowledge, truly, faithfully, and without partiality to any or either of these parties, 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, or which may hereafter, before the said commission is closed, be pro- duced to and left with you, by either of the parties —So help you God 566 MARYLAND CHANCERY PRACTICE. CLEEK. S OATH. You shall truly, faithfully, and without partiality to any or either of the parties in this case, take, write down, and transcrihe the depositions of all and every the witness or witnesses, produced before and examined by the commissioner or of them named in the comnaission hereunto annexed, as far forth as you are directed and employed by the said commissioner or thera, to take, -wAte down and transcribe the said depositions, or any of them.— So help you God. — Crnir. commissioner's eetuen. The execution of this commission appears by certain schedules hereunto annexed. Cemrnr, [seal.] No. 17. Bill for Divorce. To THE Hon. The Bill of Complaint of respectfully shows, that she inter- married with her husband on the day of , in the , where she and the said are now residing [here insert the grievance, whatever it may be, cruelty, abandonment or adul- tery, as the case may require.] That her conduct has always been proper and without reproach. That by the said marriage she has children, aged — — and . That her said husband is possessed of considerable estate. To the end, therefore, thalt she may be divorced, (a mensa, or a vinculo, as the facts may justify ;) and that she may have the care of the children decreed to her, and that proper alimony maybe awarded to her. May it please the Court to order subpcena, &c. A. B. For Complainant. APPENDIX. 567 No. 18. Answer to the foregoing Bill. To THE Son. The Answer of to the Bill of Complaint of , in this Court filed. This respondent answering, says : That he admita the marriage between himself and the complainant in manner as stated in the bill. And he admits the fact of the birth of children, as stated, and that their ages are correctly stated in the said bill. And that he is possessed of some estate. But this respondant denies, [here insert the -facts as the case may Justify.] And he prays the Court not to grant the divorce as prayed for, and that he may be hence dismissed with his costs. C. D. Sol. for Respondent. No. 19. Petition for Aliviony, pendente lite, in the above case. A. ] V. \ In Circuit Court . B. j To THE Hon. . , ThB petition of complainant respectfully shows : That she is without the means of support for herself and her children. That her husband is living apart from her, and giving her no support whatever. That she is without the means of conducting this suit ; and has no means of paying her counsel ; she therefore prays that your Honor will pass an order, directing her sa.id husband to pay her a reasonable sum, to be paid to her counsel as a fee, and also that he may be required to pay her reasonable alimony pendente lite: And she will ever pray, &c. 568 MARYLAND CHANCERY PRACTICE. No. 20. Order thereon. A. ] V. \ In Circuit Coubt B. ] Upon the foregoing petition it is ordered by the Court, this (Jay of , that the defendant , pay to the complainant , the sum of dollars, to defray the expenses of her counsel in this case. And that the defendant also pay to complainant dollars per week for her alimony pendente lite: unless cause to the con- trary thereof be shown on or before the day of ; Provided a copy of the petition and of this order be served on the said defendant on or before the instant. ( .) [Under the above order to show cause, the defendant may file an answer to the petition, and show cause against the allowance of the alimony. Vide ante pp. 382, 3, 4.] A. I B. j No. 21. Oeneral Replication in the above Case. In — ■■ . Mr. Clerk; Enter the general. replication to the defendant's answer in this case. for Gornplairuird. No. 22. Order for Commission. A. ) V. } In Circuit Court . B.J Mr. Clerk : Issue commission to , commissioner to take testimony in this case. for Complainant. tl APPENDIX. 569 [After the Testimony is taken and returned.] No. 23. Submission for Decree. In OlECUIT OOTJRT . This case is submitted for decree. • ,for Oomplainant. ,for Defervdant. B. ) No. 24. ■ Decree. In the OF Baltimobe City, Term, 18 This cause standing ready for hearing and being duly submitted, on the petition of the complainant the proceedings were by the Court read and considered. It is thereupon, this day of Anno Domini one thousand eight hundred and by Judge, and by the authority of this Court, adjudged, ordered and decreed, that the said the above named complainant, be and he is hereby divorced from the defendant . And it is further ordered that the said pay the costs of this proceeding. 570 MARYLAND CHANCERY PRACTICE. No. 25. Order of Publication. A. ) 0. > In Cibcuit Oouet . B. ) The object of this bill is to procure a divorce, (a mensa or a vin- culo, as the case may be,) of the complainant from the defend- ant . The bill alleges that the complainant and defendant were mar- ried on the . [Here insert the facts set forth in the bill.] It is thereupon ordered by the Court this day of that the complainant cause a copy of this order, .together with the object and substance of the bill, to be inserted in some newspaper published in , once a week for four successive weeks, before the , giving notice to the defendant in said bill, and warning him to appear in this Court in person, or by solicitor, on or before the , to show cause, if any he has, why a decree shall not ] as prayed. ( . ) No. 26. Certificate of Publication. JBaltimoee, , 18 . « This is to Certify, that the annexed advpjitisegient, in the matter of A. V. B., was published in the , a daily newspaper, pub- lished in the City of Baltimpre, once a week for four successive weeks, before the . ( ' ) [This certificate is filed as the evidence that the order-of publi- cation has been duly complied with. A copy of the advertisement is annexed usually.] APPENDIX. 571 [Where the defendant in a divorce case is a non-resident, there must be the usual order of publication against him. On his failure to appear, an interlocutory decree passes as follows :] No. 27. Interlocutory Decree. A ^ In the Court of Baltimoee City. vs. > B. ) Teem, 18—. « The defendant having been duly notified by publication to appear to the bill of complaint, and having failed to appear thereto after publication in the , a daily newspaper pub- . lished in , once a week for successive weeks, as ordered by the Court. It is thereupon this day of , in the year eighteen hun- ■ dred and sixty , by the Honorable , Judge, and by the authority of this Court adjudged, ordered and decreed, that the complainant is entitled to relief in the premises. But because it doth not certainly appear to what relief th^ complainant is enti- tled, it is farther adjudged and ordered, that a commission issue to the commissioners of this Court to take testimony to support the allegations of the bill. [When the testimony is taken and returned, this is followed by the final decree. Vide No. 24.] No. 28. Petition ex parte for a Decree for the Sale of Mortgaged Premises in the City of Baltimore. In Ciectjit Couet op Baltimoee City. The petition of respectfully shows that a certain made ?iiid executed . a conveyance by way of mortgage, upon real 572 MAKYLAND GHANOERY PRACTICE. estate (or chattels real, as the case may be,) lying in the City of Baltimore, to your petitioner — a certified copy of said mortgage (or the original, as the case may be,) being hereto filed with this petition, marked Exh. That said mortgage contains the assent of the mortgagor to the passage of an ex parte decree, under the pro- ' visions of the Code, Art. IV. sec. 782, Pub. L. Laws. Wherefore your petitioner prays that such decree as is usual in such cases may be passed. ■ And as in duty, &c. , Solicitor for Plaintiff. [Note. — Where the petition is filed by an assignee of the mort- gageB, the fact must be stated in the petition, and evidence of such assignment filed therewith. Where the application for decree is made before defwuM, the sale should be limited "to one of the periods limited for a default." Where a default has already occurred, the decree provides for an immediate sale, without giving the mortgagor a day in Court.] No. 29. Mortgage Decree ex parte. A i In the' Circuit Court of Baltimore City. vs. > B. ) Term, 186—. The petition and exhibit in the above cause, having been sub- mitted, the proceedings therein were by the Court read and con- sidered. It is thereupon this day of , in the year eighteen hun- dred and , by the Circuit Court of Baltimore City, adjudged, ordered and decreed that the mortgaged property in the proceed- ings mentioned be sold, that be and he hereby appointed trustee to make said sale, and that the course and man- ner of h — proceedings shall be as follows: he — shall first file with the clerk of this Court, a bond to the State of Maryland, executed by h msel — and a surety or sureties to be approved by APPENDIX. 573 this Court or the clerk thereof, in the penalty of dollars, conditioned for the faithful performance of the trust reposed in h — by this decree, or to be reposed in h — by any future decree or order in tlie premises ; h — shall then proceed to make the said sale, having given at least three weeks notice by advertisement, inserted in such daily newspaper or newspapers published in the City of Baltimore as h — shall think proper, of the time, place, manner, and terms of sale, which shall be one cash, the bal- ance in months, the credit payment to bear interest from the day of sale, and to be Secured by the note or notes of the pur- chaser or purchasers, endorsed to the satisfaction of the said trustee, and as soon as may be convenient after any such sale or sales, the said trustee shall return to this Court a full and particu- lar account of proceedings relative to such sale ; with an affi- davit annexed of the truth thereof, and of the fairness of said sale : and on obtaining the Court's ratification of the sale, and on the payment of the whole purchase money, (and not before,) the said trustee shall by a good and sufficient deed, to be executed, acknow- ledged and recorded according to law, convey to the purchaser or purchasers, his, her or their , the property and estate to him, her or them sold, free, clear and discharged from all claim of the parties hereto, petitioner and mortgagor, and those claiming by, from or under them, or either of them : And the said trustee shall bring into this Court the money arising from said sale, to be distributed under the direction of this Court, after deducting the costs of this suit, and such commission to the said trustee as this Court shall think proper to allow in consideration of the skill, attention and fidelity wherewith he — shall appear to have dis- charged h — trust; provided that before the sale herein before decreed, shall be made, a statement of the mortgage claim duly verified by affidavit, as required by Article IV. section 783 of the Public Local Laws of the State ai Maryland, be filed in said cause. 574 MARYLAND CHANCERY PRACTICE. No. 30. Bill to Foreclose a Mortgage. To THE Hon. — The bill of complaint of respectfully shows, that heretofore, to wit, on the day of , in the year 1868, a certain —^ made and executed to your orator, a certain' deed of mortgage for the purpose of secilring to him the sum of money therein mentioned, and your orator files herewith as part of his bill, a duly certified copy of said mortgage, marked Complainant's Exh. No. 1. He further shows, that the time for the payment of the mortgage debt has passed ; that the same is due and wholly unpaid as to principal and interest The conditions of said mortgage not hav- ing been fulfilled, your orator is entitled to have the premises sold for the payment of his debt. To the end, therefore, that a sale of the mortgaged premises may be had by decree of this Court, for the payment of the debt due to your orator, may it please your Honor to grant the writ of subpcma, directed to the said , of Baltimore City, command- ing him to be and appear in this Court on some certain day to be therein named, and upon his corporal oath, to answer this bill, and to show cause, if any he has, why a decree should not pass as prayed. And your orator prays for all such othei* and further" relief as his case may require. And as in duty, &c. , Solicitor for Complainant. [Note. — If the mortgage calls for promissory notes as evidences of the indebtedness, they should be filed with the bill. The form may be varied to suit circumstances. Where part of the debt has been paid, that fact should be alleged, or if the interest has been paid. The bill should contain the facts truly and plainly, just as they exist at the time of filing the bill.] APPENDIX. 575 No. 31. Answer to the foregoing JBill admitting the Facts and consenting to a Decree. \.\ vs. )■ In Cikcuit Court B. To THE Hon. The answer of to the bill of complaint of in this Court exhibited against him. This respondent admits the facts in said bill alleged, and con- sents to the passage of a decree as prayed. , Solicitor Joi- Defendant. [If an answer opposes the decree, it must set forth plainly the defence relied on, and it is not necessary therefore to occupy space in introducing imaginary forms. Any party, who knows his defence, and can put it in plain language, accomplishes the purpose in view.] No. 32. Form of Oeneral Replication to an ATiswer. IS. V Is 3. ) vs. \- Is Cikcuit Coubt of Baltimore City. B. Mr. Clerk : File the general replication in this case. , Solicitor /w Complainant. 576 MARYLAND OHANOERY PRAOTIOE. No. 33. DiscUtimer. ■A. vs. \ In Ciecuit Couet. B. To THE HONOEABLE The disclaimer of to the bill of complaint in this cause exhibited. This defendant says that he does not know or believe that he has, nor does he claim to have, any right or interest in the estate and premises in the bill set forth, or any part thereof. And this defendant does disclaim all right and interest in said estate and premises. And prays to be hence dismissed with his costs, &c. , Solicitor for . [With affidavit annexed.] No. 34. Exceptions to Answer^ vs. \ In Oiecuit Court B J To THE HoNOEABLE The complainant excepts to the answer of the defendant filed in this cause. 1. For that (stating the caiuse.) 2. For the further reason (here state.) , Solicitor for QompUmwM. , APPENDIX. 577 No. 35. Order for Hearing Exceptions to Answer. It is ordered by the Court this day of , that the within exceptions stand for hearing on the next ; provided a copy thereof and of this order be served on the defendant, or his soli- citor, before the next. . No. 36. Order Overruling Exceptions. The within expeptions to defendant's answer having been sub- mitted upon the arguments of the respective counsel, it is thereupon ordered by the Court this , that the said exceptions be and the same are hereby overruled, with costs to«the defendant. No. 37. Order Sustaining Exceptions. The matter of the exceptions to the answer of defendant having been argued by the respective counsel, and duly considered by the Court, it is ordered this that said exceptions be and the same are hereby sustained, and defendant is required to make a better answer to the bill of the complainant on or before the . And it is further ordered that the defendant pay to the complainant his costs of the said exceptions, including a solicitor's fee,* to be taxed by the clerk. • •Code, Article XVI. sec. 114. 37 578 MAEYLAND CHANCEEY PEACTICE. No. 38. Rule Farther Proceedmga. A, vs. f- Ih ClBOtriT OOUET • \] Me. ClEEK : Enter a rule further proceedings on the complain- ant in this cause. . Solicitor for Defendani. \ In . No. 39. Seeurity for Costs. vs. Y In Ciecuit Couet • B. To THE HONOEABLE ■ The defendant suggests to the Court that the complainant is a non-resident of the State of Maryland. And he moves the Court that said complainant be required to give security for costs, on pain of having his bill dismissed. . Solicitor for Defendcmt. No. 40. Order of Court thereon. It ifi ordere(} by the Court this that the complainant give security for costs in this case, or show cause to the contrary thereof before . And it is further ordered that the defendant serve on the complainant, or his solicitor,, a copy of the motion and of this order before the next. . APPENDIX. 579 No. 41. Decree of Court Dismissing the Bill. A. ] vs. \ In Circuit Couet . B. 1 A rule security for costs having been laid on the complainant in this case, and a copy of the motion and of the order of Court thereon to show cansg having been duly served on the solicitor of the com- plainant, as appears by the admitted service thereof filed ; and the complainant having sho-rtli no cause against the said order of the Court, although the day limited has passed, it is thereupon, this day of , by the Court, adjudged and ordered, that the bill of the complainant be and the same is hereby dismissed, with costs to the defendant. . « [Note. — The defendant, in answer to the motion, may deny, by way of answer, the fact of non-residence, in which event the ques- tion is tried by the Court upon affidavits; the affirmative is upon the party asserting the non-residence.] No. 42. An Amended or Supplemental Bill. The amended (or supplemental) bill of complaint of A, of - county, humbly shows, that heretofore he filed his bill of complaint in this Court against a certain B, of county, praying, amongst other things, for a sale of certain premises, mortgaged by the said B, to your orator, as in said bill is particularly set forth ; to which bilAthe defendant answered, and other proceedings were had, as by the same proceedings, now in this Court, will appear. And your orator has lately discovered, and now charges by way of amendment (or supplement) to his aforesaid bill of complaint, that the said B, subsequent to the date of his aforesaid mortgage to your orator, conveyed or assigned all his remaining interest or 580 MARYLAND CHANCERY PRACTICE. equity of redemption in said premises unto one 0, of said county, who is therefore a necessary party to this suit. To the end, therefore, that the said B may answer this amend- ment, and that the said C may answer as well the matters charged in the original bill of complaint as in this amended bill, and that your orator may have such relief against them as is prayed by his original bill against the said B. May it please, &c., [concluding with the usual prayer for process.] No. 43. Bill for Redemption of Mortgaged Premises hy Heir at Law of Mortgagof vs. Mortgagee who had enter&i into possession. The bill of complaint of A, of County, humbly shows : That heretofore, to wit : on the day of in the year a cer- tain B, late of said county, but since deceased, being in his life time indebted unto a certain C, of said county, in the sum of current money, and intending to secure the payment thereof unto the said C, did' by his deed of that date, convey unto the said C, certain real estate lying in county, and particu- larly described in, said deed : to which said deed there is a condi- tion annexed, that it be void on payment by the said B, his heirs, executors or administrators, unto the said 0, of the aforesaid sum of money, with interest thereon, from the on or be^re the day of in the year , as by a copy of said deed filed as part of this bill will more fully appear. And your orator charges that shortly after the execution of ^e said mortgage, the said C entered into possession of the aforesaid premises, and the receipt of the rents and profits thereof, and still retains the same. That the said B has lately departed this life intestate, whereby his equity of redemption of the aforesaid pre- mises hath descended to and vested in your orator, who is his only child and heir at law. APPENDIX. 581 And your orator hath applied to the said to permit him to redeem the aforesaid premises ; and to enable your orator so to do, to account with your orator, for the rents and profits of the said premises received by him, during the time he has been in possession thereof as aforesaid. Your orator insists, that the said C by taking the rents and pro- fits of said premises as aforesaid, had satisfied unto himself the whole of the interest accruing on said mortgage, together with a considerable part of the principal debt secured thereby ; so that there remains due thereon, a very small sum of money ; which your orator will be ready to pay unto the said C, as soon as the precise amount thereof can be ascertained. To the end therefore, that the said may answer the several matters and things herein before stated, as fully and particularly as if they were here again repeated, and he was thereunto spe- cially interrogated ; and may also render a full and particular account of the rents, issues and profits of the aforesaid premises re- ceived by him, or by any other person or persons' for his use, or by his authority and direction, since he has been in possession thereof as aforesaid, with the several and respective times when, and per- sons from whom, and the purposes on account of which the same were received ; and may discover at what yearly rent or rents the said mortgaged premises and every part thereof have, or might have been let during the term aforesaid ; and to whom the same, and every or any part thereof, has, in fact been rented during the said term ; and if the same hath not been rented, then that he may discover by whom, and in what manner the same hath been used . or cultivated. And that an account may be taken under direction of this Court, of what is now due and owing from your orator to the said 0, for principal money and interest, on security of the aforesaid premises; after allowing to your orator for the rents and profits thereof received by the said C, or any person or per- sons on his behalf, or which, without his wilful neglect and default, might have been received by him since he entered into possession thereof as aforesaid; and that upon payment by your orator, of what, if any thing, shall be found remaining due to the said C on said account, the said C may be decreed* to surrender and deliver up the possession of the said mortgaged premises to your orator ; and that your orator may have such further or other relief as his case may require. May it please, &c. 582 MAEYLAND CHANCERY PEAOTICE. No. 44. Bill by Oreditors vs. The Administrator and Seirs at Law of a Deceased Debtor for an AoQauni of Personal and a Sale of Heal Estate. The Bill of Complaint of A, B and C, of county, who sue as well for themselves as all other creditors, of D, late of said county, deceased, who will come in and contribute to the expenses of this suit, humbly shows, that a certain D, late of county, deceased, was in his life time indebted unto your orator A, in the sum of current money on his certain bond or obligation, dated on or about the day of in the year and conditioned for the payment to your orator, of the sum of with interest- thereon, from the date thereof, on or before a day long since passed ; and unto your orator B, as executor of the last will and testament of one E, late of county deceased, in the sum of op a certain promissory note to the said E in his life time, dated on the — '■ — day of and payable ninety days after the date thereof; and unto one F, of county, (who has lately departed this life 'intestate, and upon whose personal estate your orator has lately administered,) in the sum of for sundry matters and things properly chargeable in account. As by your orators' exhibits. A, B, C, D, and E, filed as part of this bill will more fully appear. [These exhibits should be the bond and promissory note or copies thereof-^a copy of the open account— ^and certificates of the grant of letters testamentary and of administration to two of the com- plainants.] And your orators furtiier chairge that the said D being indebted as aforesaid unto your orators, and also unto divers other persons in large sums of money ; and having rea.1 and personal estate of great value, departed this life in the year intestate, and leav- ing G, who was lately intermarried with one H, of county, J, K, L and M, his children and heirs at law ; of whom the said L and M are infants, under the age of twenty-one years. And that after the death of the said D, the said I departed this life intestate, leaving a widow N and an only child 0, who reside in the State of w^-m APPENDIX. 583 Tennessee ; and upon whom has devolved all his interest m the real estate of the aforesaid D. And your orators further charge that administration of all and singular the personal estate of the said D, hath been lately granted by the Orphans' Court of county, unto one P, of said county ; who in virtue thereof has possessed himself of the said personal estate of great value ; but your orators are informed and believe that the same is not sufficient to discharge all the debts, due and owing by the said intestate, at the time of his death. And your orators are advised that the said personal estate in the hands of the said P, ought to be applied to the payment of the claims of your orators, and of other creditors of the said D, so far forth as the same will extend; and that any deficiency in the said personal estate ought to be supplied by a sale of the real estate of their aforesaid debtor. But now so it is, that the said P, has wholly refused to pay any part of their aforesaid claims, or to render unto them any account of the aforesaid personal estate in his hands ; and your orators are unable to obtain adequate relief against him, or against the afore- said real estate, without the aid of this Court. To the end therefore that the defendants hereinafter named, may answer the several matters and things hereinbefore set forth, as folly and particularly as if the same were herein again repeated, and they weriB thereunto interrogated : and that the said P, may also 6et forth an account of the personal estate of his intestate, and the amount and particulars thereof, possessed by him ; and what part thereof is now in his hands ; and how much thereof has been disposed of by him in payment of his intestate's debts or otherwise ; and what debts, and to what amount remain unsatis- fied; and that the other defendants, heirs at law of the said D, may discover all and singular the real estates of which the said D was seized of, or entitled to, at the time of his death ; and where the same and every part thereof is or are situate : and that an account may be taken under the direction of this Court, of the said debts so as aforesaid due to your orators ; and of all other debts which were owing by the said intestate at the time of his death, and which still remain unpaid ; and also of the personal estate and effects of the said intestate received by or for the use of the said P, as administrator aforesaid ; and that the said personal estate may be applied, in a due course of administration, in payment of the debts of the intestate due to your orators, and all other credi- 584 MAEYLAND CHANCERY PRACTICE. tors, who may come in and contribute to the expenses of this suit ; And that the aforesaid real estate, or so much thereof as may be necessary for the purpose, may be decreed to be sold, for the pay- ment of so much of the aforesaid debts as may remain unsatisfied by the application of the personal estate as aforesaid : and that your orators may have such further or other relief as their case may require. May it please your honor to grant unto your orators an order of publication giving notice to the said N and 0, and also the writ of suhpoe!na against the said P. H and 6, his wife, K, L and M, of county, commanding them, &c. No. 45. Bill of Revivor by the Original Oomplainant va. the Mxeaator of the Origi7ial Defendant who had answered the Original Bill before his Death. The Bill of Complaint of A, of County, humbly shows ; that heretofore he filed his bill of complaint in this Court against certain B, C and D, praying amongst other things, &c. [here insert prayer of original bill in such manner as to show the right to revive against the executor of the deceased defendant] : to which said bill the said defendant answered and other proceedings were had ; as by the same proceedings now remaining in this Court will appear. And your orator further charges, that before the said cause was brought on to a hearing, the said B departed this life ; leaving a last will and testament in writing duly executed in his life time, and whereof he appointed a certain E, of said county, executor; who, since the death of the said B, has duly proved the same and obtained letters testamentary thereon, and has possessed himself of assets of his testator sufficient to answer the demands of your orator against the said testator, as stated in his aforesaid original bill. And your orator is advised that the said suit, having abated by the death of the said B, he is entitled to have the same revived APPENDIX 585 against the said E, as executor aforesaid, and restored to the con- dition in which it was at the death of the said B. To the end, therefore, that the said E may answer the premises, and may either admit assets of his testator in his hands to satisfy your orator's aforesaid demand^ or set forth a full and. particular acconnt of the personal estate of his testator, which has come to his hjnds and of the application thereof. And that the said suit may be revived against the said E, and be restored to the same condition as it was in at the time of the death of the said B. And in case the said E shall not admit assets of his testator in his hands to satisfy your orator's aforesaid demand, that an account may be taken under the direction of this Court of the estate and effects of the said test-ator, received by or for the use of the said E, as execu- tor aforesaid, and of the application thereof. May it please your Honor to grant unto your orator the writ of suhpcena against the said E, commanding him to appear in this Court to answer the premises, and sBow cause, if any he has, why this suit ought not to be revived against him as prayed, and as in duty; &c. No. 46. Petition in the Nature of a BiU of Mevivor to Revive a Decree. To THE Honorable, &c. The petition of A, of County, executor of B, humbly shows that by a decree of this Court, dated on or about the day of , and passed in a cause, wherein the said B was complainant and a certain C, of County, was defendant, it was amongst other things adjudged, ordered and decreed that the said C, forth- with pay or bring -into this Court to be paid unto the said B, the sum of , with interest from the day of until paid or brought in aforesaid, together with his costs of said suit, to be taxed by the clerk, as by the said decree now remaining in this Court will more fully appear. 586 MARYLAND CHANCERY PRACTICE. And your petitioner further charges that before the payment of the sums of money decreed to be paid as aforesaid, and before any proceeding had been taken in execution of said decree, the said B departed this life, whereby said decree became abated. That the said B in his life time duly made and published his last will and testament in writing, and made your petitioner the execu- tor thereof, who has since the death of his testator prove^ the same, and obtained letters testamentary thereon ; and he is advised that he is entitled to l&ve the said decree revived against the said 0. He therefore prays that your Honor will grant him a writ of suhpoma scire facias against the said 0, commanding him to appear in this Court, and show cause, if any he has, why the aforesaid decree ought not to be revived as prayed, and as, &o. No. 47. Suggestion in the Nature of a Bill of Revivor. Code, Art. XVI. sec. 4. ^ ) vs. > Ih Oiecuit Court Baltimoee City. D. ) To THE Honorable, &c. The petition of A B, of , humbly shows that since filing the defendant's answer in this cause, the complainant 0, has departed this life, intestate and that administration on his per- sonal estate has been granted unto your petitioner by the Orphans' Court of County, as by a certificate thereof, filed herewith, appears. "Wherefore your petitioner prays, that he may be ad-* mitted as administrator of the deceased, to prosecute his suit in his stead, and as, .&c. APPENDIX. 587 No. 48. « Order Nisi. Ordered that the said A B, as administrator of the said 0, be made a party complaiaant to this suit as prayed by the foregoing petitioHi unless cause to the contrary be shown by the day of next; provided a copy of this order and a copy of the foregoing petition be served on the defendant, on or before the next. No. 49. Final Order on the Petition. In Oiboxjit Gotjbt Baltimobe City A copy of the within order and petition, having been duly served on the defendant, and no cause shown to the contrary, it is there- upon ordered, this day of , by the Court, that the said A B, as administrator, be, and he is hereby made a party com- plainant to this suit in the place of the said 0; and the said parties are hereby allowed to proceed in the cause, according to the course of the Court. No- 50. Order made on the Sv^gestion of the Opposing Party. Ordered, this day of , that the said A B be made a party defendant to this suit, in the place of the said D, as his administrator, and that he be summoned accordingly; provided that said summons be served on him before the and be m'ade returnable to the next term 588 MARYLAND CHANCERY PRACTICE. No. 51. Final Order Thereori,. * The summons taving beea served, on tke said A B, as required by the preceding order, and no cause having been shown to the contrary, it is thereupon ordered by the Court, this day of , that the said A B be, and he is hereby made a party defen- dant in the place of the said D, as his administrator, and the parties are allowed to proceed in this cause according to the course of this Court. No. 52. Order of Revival. In Circuit Court for Baltimore County. vs. B. j In Equity. On motion of , solicitor for the defendants in this cause, it is ordered that the said cause be, and the same is hereby revived against , as executrix of , the original complainant, she having, by her answer to the bill of revivor of the said , admitted the right of the said original defendants to revive said cause as against her ; and the said parties are hereby allowed to proceed in said cause, according to the course of the Court. No. 53. Bill for an Injunction hy one partner vs. others,, and for a Receiver and an order to bring money into Court. The Bill of Complaint of A, of county, humbly shows; that on or about the day of your orator and certain B and C, of county, from the mutual confidence they placed in each APPENDIX. 589 other, entered into an agreement to become co-partners in general trade and commerce, in equal shares as to the profit and loss ; and that such business should be carried on at under the name of B. C. & Go. ; and thereupon a certain deed of co-partnership, bear- ing date the day of duly executed by all the parties thereto, was made between the defendants and your orator, [here insert the substance of the articles which it is supposed gives to any one partner the right of determining the co-partnership at the expiration of any one year, after giving three months previous notice of his intention,] as by the said deed, of which a copy is exhibited as part of this bill will appear. And your orator further charges, that the aforesaid business commenced on the day of under the direction of all the aforesaid partners, and with a fair prospect of a successful issue. But, after the lapse of a very few months, your orator discovered that his confidence in his associates was misplaced, and that by their gross mismanagement, the credit of the concern was brought into question, and that in truth, much of the property of the part- nership had been, and daily was, applied to the private uses of the said B and G. Your orator therefore, on the day of gave notice to the said B and C, that the partnership should terminate at the end of the then current year; and accordingly on the day of your orator again applied himself to the said B and C, and declared to them that the aforesaid partnership was deter- mined, and required that an account should be taken forthwith of the partnership business, and that the effects remaining on hand should be disposed of. But these reasonable requests of your ora- tor have not only been rejected, but the said B and C, have wholly excluded him from all share in or control over the partnership afikirs, and absolutely refuse to permit him to inspect the books of account of the partnership. And in anticipation of an application by your orator to this honorable Gourt, the said B and C, have sent, and are now engaged in sending parcels of the partnership goods to auction, where they have been sold, and are now selling at ruin- ous sacrifice ; and are now collecting the debts due to the concern ; and in many cases where those debts are not yet payable, have as your orator is informed and believes, compounded with the debtors, by allowing them very great discounts for prompt payment thereof. By occasion whereof, your orator justly apprehends that the ,part- nership effects, (which if properly administered, would, not only 590 MARYLAND CHANCEEY PRACTICE. discharge all the partnership liabilities, but yield a large surplus for distribution amongst the partners,) will be so far diminished, as to become inadequate to the payment of the partnership debts, to the manifest injury of the creditors of the firm, as well as of your orator.' And instead of applying the moneys Vhich they haye received to the payment of partnership debts, the said B and 0, have deposited the same in the Bank of B to the credit of the partnership, with the intent of remitting the same to St. Louis, in the State of Missouri, or some other places in the west, whither they design to abscond, so soon as they shall have con- verted all the effects of the firm into money. And your orator further charges, that the moneys deposited by the said B and 0, as aforesaid, in the said Bank, amount in the aggregate to the sum of $7,500, which with the sum of $1,500, the balance to the credit of the firm on the aforesaid day of its dissolution, amount to the sum of $9,000; the whole of which being received by said Bank as part- nership money, and carried to the credit of the partnership on the books of the Bank, and remaining at this time to the credit thereof, ought to be deemed and taken to be parcel of the assets of the partnership, and liable to the claims of the creditors thereof. In consideration whereof and to the end that the defendants hereinaf- ter named, may answer the several matters and things hereinbefore charged, as fully and particularly as if they were herein agaiii stated, and they were thereto specially interrogated ; and that a receiver may be appointed to take charge of all the partnership books and papers of account, goods and effects, and to collect the debts due thereto, and to preserve or dispose of the same under the direction of this Court. And that the said Bank of B. may be required to bring into this Court, to be deposited to the credit of this cause, the aforesaid sum of $9,000, or such other sum of money, as may be stand- ing on the books of the Bank-to the credit of the said partnership ; and that the said B and C, may by injunction be restrained from selling or disposing of, or retaining from the receiver, any of the goods and effects of the partnership, or collecting any debts due thereto, or negotiating any bill or note, or contracting any debt whatsoever on account thereof, or intermeddling in any other manner with the business thereof. And that the said partnership may be declared to be dissolved ; and that an account of its business may be taken under the direction of this Court; and that its effects may be appEed to the payment ,of its debts and liabilities, and residue w^ APPENDIX. 591 thereof distributed amongst its partners ; and that your orator may have such further or other relief as his case may require. May it please your honor to grant unto your orator a writ of injunction against the said B and 0, enjoining and strictly prohib- iting them, stnd each of them from selling or disposing, &c., [here follow the words of the prayer,] and also the writ of subpcena against the said B and 0, and the — ■ — Bank of B. commanding them, &c., &c. AFFIDAVIT TO ACCOMPANY BILL. « Baltimore City, to wit : On this day of in the year , before me a Justice of the Peace in and for said City, personally appeared the within named A, and made oath that the matters stated in the foregoing bill are true to the best of his knowledge and belief. No. 54. Qrder upon the foregoing Bill. In Circuit Gotjet, Baltimore City. On the foregoing bill and exhibit it is ordered by the Court this day of , that D E, of be and he is hereby appointed a receiver with power and authority to take charge and possession of the goods, wares and merchandises, books, papers and effects of, or belonging to the said firm of B, C, & Co., and to collect the out- standing debts due to the said firm. And the said B and C, and each of them are hereby required to yield up and deliver unto the said I> E, the goods wares, and mershandises, books, papers and effects, of the said firm ; subject nevertheless, to the further order of this Court. And it is further ordered that before the said D E, proceeds to act as receiver by virtue of this order, he shall give bond to the State of Maryland in the penalty of Dollars with a surety or sureties to be approved by the Court, and conditioned for the faithful performance of the trust reposed in him by this order, or 592 MARYLAND CHANCERY PRACTICE. whict may be reposed in him by any future decree or order in the premises. And it is further ordered that a writ of Injunction be issued, as is prayed. But liberty is hereby reserved to the defendants to move for the rescinding of this order, and for a dissolutioa of the Injunction to be issued as aforesaid, at any time after filing their answers to said bill, on giving to the complainant five days previous notice of such motion*. And the clerk is hereby directed to annex a copy of this order to the writ of Injunction. And it is further ordered that the said Bank of B, bring into. this Court the sum of — —dollars,- or such other sum of money as may be standing to the credit of the said firm of B, 0, & Co., on the books- of of the Bank, or show good cause to the contrary, on or before the day of next, provided a copy of this order be served on the said defendant, before the instant. "See the vule in the Circuit Court, Baltimore Citj-, — No. 55. Bill by Vendor against Vendee for Specific Performance of a Parol Agreement. The Bill of Complaint of A, of County, humbly shows: that heretofore, on or about the day of , in the year , a certain B, of said county, agreed with your orator to purchase from him a certain house and lot in the City of Annapolis, and, which is more particularly described in the copy of a deed marked No. 1, and filed as part of this bill, at and for the sum of cur- rent money, which, with interest from said day, was to be paid unto your orator on or before the day of then next ; and the said B was to give unto your orator his bond, with good secu- rity, for the payment of the said sum of money, with interest thereon, according to the terms of said agreement. And your orator charges that in confidence of the legal validity of said agreement, and of the promise of the said B to give bond and security for the payment of the purchase money as aforesaid, he APPENDIX. 593 delivered up possession of the aforesaid house -and lot to the said B, who still occupies and enjoys the same. And the said B has actually paid unto your orator one year's interest on the purchase money aforesaid And he had well hoped that the said B would have faithfully complied with his engagements as aforesaid, to give bond to your orator to secure the payment of the said purchase money at the time prescribed for payment thereof ; and since that time to pay to your orator the said purchase money with the amount of interest still due thereon. But now so it is, the said B, not regarding his aforesaid promises and engagements, but contriving and intending to deceive and defraud your orator in this behalf, has always hitherto delayed and evaded the performance of his agreement to give bond to your orator as aforesaid; and also has refused and still refuses to pay unto your orator the aforesaid principal sum of money, with interest thereon, or any part thereof, although the time limited for payment thereof has long since passed, and your orator is now able and will- ing to give to the said B a proper conveyance of a good and unen- cumbered estate in fee. And the said B, amongst other things, pretends that the aforesaid agreement is wholly inoperative, for want of a writing signed by the parties, and evidencing the same ; whereas, your orator is advised that the said agreement hath been so far executed by delivery of possession of the premises in question, by your orator to the said B, and by payment of interest on the purchase money by the said B to your orator, that it would be against equity to permit the said B, at this time, to defend himself by such an objection. To the end, therefore, that the said B may answer the matters and things herein before stated, and that the said B may be decreed to pay unto your orator the principal sum of purchase money agreed to be paid, w^ the arrears of interest accrued thereon, and to accept from yOTir orator a conveyance of the aforesaid house and lot, and that your orator may have such further or other relief as his case may require. May it please, &c. 38 594 MAEYLANB CHANCERY PEACTJOE. No. 56. Bill for the Sale of Property under the Meahanics^ Lien Law. % The HONOEABL^fi '— . The bill of complaint of respectfully stows, ttat lie con- tracted in tte iQonth of April last witli a certain to furnish for the erection of ten dwelling houses, situate on John Street, in the City of Baltimore. That he fulfilled the said con- tract and furnished the said , which were u'sed in said build- ings. That the same were to be paid for in cash on the completion of the said houses, and that the same were fully completed in last. That tis said claim is overdue, tte said having ite- ■quently promised to pay tlie same, but has failed to do so. He further shows that he duly filed his claim as a lien against the said buildings and the ground attached thereto, according to the law in such cases made and provided in the Superior Court of Baltimore City, which contains an accurate description of the locatidn of said property. And he files herewith, as a part of this bill, a duly cer- tified copy of said lien claim, wtereby it appears that there is due to your orator the sum of dollars. To the end, therefore, that a decree may te passed by this Court for the sale of the property aforesaid, and from the proceeds that the claim of your orator may be paid with interest, may it please your Honor to order the writ of subjpcena, &c. Arid he prays for all such other and further relief as his case may require. , Solicitin- for Qomphirumt. No. 57. Bill to, set aside Bill of Sale, charging fraud, and ashing for Injunction. to the sonoeable the judges of the clecuit cotjet of County : The bill of complaint of respectfully shows, that he is trustee in insolvency of , and has given an approved bond. APPENDIX. 595 That in the discharge of his duty as such trustee he proceeded . to take possession of the goods and chattels now in the store occupied by the said insolvent at his place of business, situate . And he further shows that, on making demand for such goods' and chattels, a certain claimed the same under a bill of sale from the said insolvent , dated t — ■- — , a .certified copy whereof is herewith filed as part of this bill, marked Exhibit . And your orator further charges that he is informed and believes that the said bill of sale is fraudulent, and was made with the design to hinder, delay and defraud the creditors of in the collection of their debts, «,nd that the consideration therein men- tioned is colorable only. And your orator farther charges that 6n the a certain cred- itor named ■ procured an attachment against said insolvent, and procured the same to be levied on the goods of said insolvent , as aforesaid, by the sheriff of , who has surrendered the said goods to your orator as the permanent trustee of said insolvent. And yonr orator avers that said bUl of sale aforementioned is fraudulent and void, for the additional reason of its being in fraud of the insolvent laws of this State, having been made at a time when was wholly and grossly insolvent, and at a time when he had no reasonable expectation of being exonerated from liability to execution on account of his debts, except by application for the benefit of the insolvent laws. And your orator avers that by the force and effect of the insol- vent laws of Maryland, the property so fraudulently assigned vests in this complainant as trustee of the insolvent. To the end, therefore, that said insolvent ■ — ■ may answer the premises, and that the said bill of sale to may be declared null and void, and that the property therein mentioned may be delivered into the possession of your orator for the benefit of the insolvent's creditors. And that in the, meantime the said , and the said , their agents and servants, may by injunction be restrained from selling, or in any manner disposing of said goods. May it please your Honor to grant unto your orator the writ of subpcma, &c. And likewise the writ of injunction directed to and , enjoining and prohibiting them, &c. And your orator prays for all such further and other relief, &c. J. P. P., For (hmplainant. [Affidavit annexed.] 596 MARYLAND CHANCERY PRACTICE. No. 58. ^ill charging fraud, and asking for a Heeeiver and Injunction. to the honoeable the jxjdges op the olectjit cotjet op County: Tte bill of complaint of respectfully shows, that on the ■ he forined a co-partnership with to carry on the business of in as will appear more fully by the agreement between them made at the time, which is herewith filed, marked Exhibit That said business has been conducted under the firm and style of and that all the stipulations to be performed on the part of your orator have been fully complied with; Your orator further charges, that the said is collecting the funds of the partnership, and fraudulently applying the same to his ■ own use, and has refused to report the amount of his collections to your orator. And he further charges, that he is insecure in the longer con- tinuance of the said firm ; that he believes his partner is wasting and squandering the assets of the firm ; that his said partner refuses to allow hini access to the books, and that unless restrained by the action of this Court, the firm will not have sufficient to pay its just debts. To the end therefore, that the said may answer the premises and that he may by injunction be restrained from dispos- ing of any of the stock, goods, and chattels of said firm, and that he may be restrained from collecting the debts due the said firm. And that a Receiver may be appointed to take possession of the partnership assets and wind up the business, and that general relief may be affi^rded your orator. May it please your Honor to grant the writ of injunction, &c., and also the writ of subpoena directed to the said -, &c. And that your orator may have all further relief in the premises, &c. A. B. Solidlm- for Complainant. [Affidavit annexed.] APPENDIX. ' 597 No. 59. Bill for Dissolution of Co-partnership, the Appointment of a Receiver, and for an Injunction, and for gen- eral relief. To THE Hon. ^, Judge of the Circuit Court of Balti- more City ; This, the bill of complaint of , of Baltimore City, and prayer for an inJTinction,*for the dissolution of articles of co-part- nership, and for the appointment of a receiver, respectfully repre- sents — That heretofore, to wit, upon the day of , this com- plainant entered into articles of co-partnership with one , also of the City of Baltimore, for the purpose of conducting the business in the City of Baltimore, under the name and style of & Co., a copy of (or the original) of said articles of co-part- nership your complainant herewith files, marked Exhibit No.. 1. That at the time of entering into said co-partnership the said had not the means and could not furnish to the co-partnership the amount of funds called for to be furnished by him under the terms of the articles of co-partnership herewith filed ; and to facilitate him, the said , and to enable him to come in, this complainant agreed to take from him, the said , his promissory note, paya- ble months after date, for the sum of — ■ — dollars, which said promissory note is now outstanding in the hands of this com- plainant unpaid. That by the terms of the articles of co-partnership each partner was and is required to devote his whole time and attention to said business; and now this complainant charges that the said , in violation of his duties to this complainant, his co-partner, and in violation of his duties to the creditors of the firm, has neglected and refused and still neglects and refuses to devote any portion of his time or attention to said business. That the said has collected from various persons at differ- ent times large sums of money, for which no entry appears upon the books of the firm, and has, in fraud of the rights of this com- plainant, and in fraud of the rights of the creditors of the firm, applied the proceeds of such collections to his own private uses. ggg MARYLAND GHAlfOERY PRACTICE. and Las not only neglected but refused to pay the honest bills due by the firm, though contracted by himself in the firm's name. That a portion of the money so belonging to the firm and so con- verted to his own private use is now deposited at the Bank of to the individual credit of the said . That the firm of & Co., by reason of the want of attention to business on the part of said , has failed to make any money ; that there are liabilities still outstanding due by the firm, which ought to be paid out of the proceeds of collections as they come in; That the said is wholly without means, and is irrespofisible ; hence his disregard Of the rights of the creditors or of the result of the wihding up of the affairs of the firm That your complainant has means, and is responsible, but insists upon a proper application of the assets of the firm to the liquida- tion of its liabilitieB as far as they will go. That there are outstafiding and in process of collection a large numbei: of elaimej and this complainant has reason to fear in behalf of hitnself, and in behalf of the creditors of the firm, that the said will possess himself of the proceeds of such collections, and will appropriate them to his owb private uses and purposes, to the permanent injury of your complainant and the permanent injury of the creditors of the firm; unless hia proceedings are stopped 'bf an injunction from this Honorable Court. That the firm of ^ & Co. is this day insolvent, and this com- plainant has reason to fear and now charges that unless the said the Bank is restrained by injunction from paying Over to himy the said , or upon his order, the funds standing to his the said -'s credit, upon the book* of th^ bank, which said funds this complainant charges are the funds of & Co., and are not the private property of the said , to that extent the available assets of the firm will be permanently lost to this complainant and to the creditors of the said firm of & Co. That yout complainant is remediless in any proceeding at law by reason of the strict rules of the conunon law, and therefore comes to this Court, where such matters are properly cognizable and relievable, and prays that an injunction may issue to the said , enjoining and restraining him, and especially prohibiting him from collecting any money due to the said firm of & Co., as also from selling or disposing of any of the assets or property of the APPENDIX. 599 firm, or from interfering in any manner witt the business of the firm, and an order requiring him to deliver over to the proper officer of this Court any funds now in his possession or under his control the property of the firm. This complainant also prays that an injunction may issue to the Bank of , enjoining and restraining the said bank, and prohibiting especially its officers and agents and employees from paying over to the said , or upon his order, or to any one for his use, or in any way parting with any funds, rights or credits standing in the name of the said upon the books of th& bank. This eomplainant further prays for the appointment of a Beceiver to take into his possession all the assets of the firm of & Co., property, books of accounts and credits belonging to the firm, and apply the proceeds under the orders of this Honorable Court, and the partnership be by this Court declared dissolved, and for such further relief in the premises as to your Honor may seem consonant with justice and right in the premises. To this end may it please your Honor to grant unto your orator the writ of injunction, &o. &c., and also the writ of subpoena, &c. And he prays for such other and further relief as his case may require. A. B. C„ Solicitor for Chmphmant [Affidavit annexed.] No. 60. Order dissolving an Injunction. A ) vs. > In Cibcuit Oouet of Baltimoee City. B. ) This cause Bta»duig ready for hearing on the mptipa tc? dissolve the iaJBiM:ti.0B, the argusi^nts of tiie counsel and the p;r49ceed^ipi, having been by the Court duly considered. Ajid the Court being of the opiiaion, that the ground upon which the injunction was granted, has been removed by the answer. It is thereupon ordered this day of that the injunc- tion heretofore granted in this case be, and the same is hereby dis- solved. 600 MARYLAND CHANCERY PRACTICE, No. 61. Order continuing Injunction. In Circuit Court This cause having been set down for hearing on the motion te> dissolve. The arguments of counsel, the proceedings, and the testimony having heen duly considered by the Court, and no suffi- cient cause having been shown for dissolving the injunction hereto- fore issued in this case. It is hereby ordered this that the same be continued until the final hearing. No. 62. Order continuing the Injunction in part, and dissolving it in part. A. ) vs. > In Circuit Court . B. J . This cause having been set down for hearing on the motion to dis- solve. Counsel having been heard, the testimony and all other proceedings in said cause having been duly considered. And the Court being of opinion, that in so far as the injunction issued in this case concerns sufficient cause for the dissolution thereof has been shown,- therefore the injunction in regard thereto, is hereby dissolved ; and the Court being of opinion that no sufficient cause of dissolution has been shown ^so far as the same relates to the pro- perty on street. It is ordered this that the injunction to this extent be con- tinued until the final hearing. '' APPENDIX. (;01 No. 63 Bill Avei'ring Fraud, and asking that a fraudulent Deed may be annulled. To THE Honorable Judge of the Oiecuit Cotjkt of Bal- TiMOEE City : The bill of complaint of , respectfully shewett unto your Honor, that your orators are co-partners in the , under the firm of . and are large dealers in . That a certain , of the , is a , and was and is engaged in . That in the year , and prior thereto, the said became and was largely indebted to for sold by to , upon which indebtedness your orators brought suit in the Court of against the said , and on day of , obtained a judg- ment against for , with interest from the said day of and costs, and on the day of , they issue a. fieri facias on the said judgment returnable to the Term, of the said Court : all of which will appear by a short copy of said judgment under seal, herewith filed, and which, with the other exhibits filed herewith, is prayed to be taken as part of this bill, the said short copy of judgment being marked complainants' exhibit A. And your orators further represent that the said fieri facias was levied upon the following described in the , then and for a long time previous in the possession of the said , that is to Bay : [here describe property :] and the said and all the right, title and interest of the said therein, were on the day of sold under the said fieri facias to satisfy the said debt, and your orators became the purchasers thereof and have received from the sheriff of a deed therefor, a certified copy of which deed is herewith filed, marked complainants' exhibit B. And your orators further state, that at the time of the institution of your orators' suit and down to the day before your orators obtained judgment therein, the said held the said under title then in him; but on the said day before your orators obtained their said judgment, to wit, on the day of , the said for a pretended consideration of conveyed the said by a deed of that date to , subject to such deeds, leases and mort- 602- MARYLAND CHANCERY PRACTICE. gages as the said had before made of the said pi-operty. And your orators now exhibit herewith a certified copy of the said deed, marked complainants' exhibit C And your orators further state, that on the same day on which he made the deed to last abovementioned, he also made a bill of sale to of all his, [here describe articles. &c.J so that the said deed, together with the said bill of sale, was intended to convey to all his property of every kind which could be subjected to sale hj fieri facias at the suit of his creditors. And your orators further state, that at the time of his making the said deed and bill of sale was largely indebted and insolvent, and that he had not the means of paying his said debts apart from the property so conveyed by him. That the said con- veyances were fraudulently made, not for bona fidb, but for simu- lated and pretended considerations, and were made to hinder, delay and defraud your orators and his other creditors of their just and lawful debts ; and that the same are therefore void. That the said conveyances were made after the institution of your orators' suit, and the day before they obtained judgment thereon ; that notwith- standing the said conveyances the said continued to live in and occupy the real property described in said deed, and to hold and possess, and use in his daily business, and enjoy the conveyed by said bill of sale. All of which doings are contrary to equity and good conscience and are fraudulent and void. To the end therefore that the said may answer the premises, and that the said deed from the said to the said for the said may be declared to be void, and may be vacated and annulled, and tiiat your orators may have such other relief as their case may require. May it please your Honor to grant to your orators the writ of suipoma, commanding the said to be and appear in this Court on some day to be named therein, to answer the premises and to abide by and perform such decree as may be passed therein. Bolidtorfer Gonyttainamis. APPENDIX. 603 No. 64. Bill for the Enforcement of a Mechanics Lien. To THE Honorable Judge of the Circuit Court for Baltimore City: The Bill of Complaint of ^ shows that your complainant early in the year , sold and delivered to certain which he used in building a certain house in the ; and that your orator afterwards aad within six months of the time of sale and delivery filed in the -= of Baltimore City, his lien against the said house and ground adjacent, to enforce the payment of for the aforesaid, a certified copy of which lien your orator files with this bUl, marked exhibit A, as part of this complaint. To the end that the said may answer the allegations of this bill, that the property aforesaid and described in the lien may be by a decree of this Court subjected to the payment of the said lien claim and interest from , and that your orator may have such other and further reli,ef as his cau^e may require. May it please your Honor to grant unto your orator a svApoena, commanding tiie said to be and appear in this Court on some certain day l^erein named to answer the premises and abide by and perform such order or decree as may therein be passed. And as in duty, &c. ,for Complainant. No. 65. BiM to set aside a Contract, by reason of mistake; charg- ing fraud. To THE Hon. The Bill of Complaint of humbly shows that in the year your orator and a certain of were jointly interested as partners in a commercial adventure to , goods 604 MARYLAND CHANCERY PRACTICE. being purchased by the partners here and shipped and consigned to an agent on , and to be there sold by the said agent, and the proceeds remitted in other goods or moneys, and that after said business had been prosecuted for some time with varying success, the said proposed to your orator to sell out to your orator his interest in said adventure, to which your orator acceded, and on or about the your orator did agree to purchase the said 's interest in the said adventure for the sum of dollars, as by an article of agreement executed by the parties, with the supplemental agreement thereon endorsed, which your orator marks A, and files as part of this bill will appear. And your orator charges that the motive assigned by the said for selling out his interest in said adventure was his desire to engage in a different business, and the said — :- being at that time engaged, or shortly thereafter forming an engagement with one . The notes given by your orator for the purchase of the said 's interest as aforesaid, were passed into the business of the said in or about year your orator in renewal of his origi- nal notes given to the said his promissory notes ; and your orator further charges that the said have brought their action in the Court of against your orator, seeking to recover in the first of said actions the amount of the note first aforesaid described, and in the other of said actions the amount of the other three of said notes; and said actions stand ready for trial at the present term of said Court, and will be called for trial in a few days unless your Honor shall interpose for his protection. And your orator further charges that at the time of his purchase of the interest of said in the aforesaid adventure as aforesaid, an estimate was made of the value of the assets and liabilities of the concern, and it was upon said estimate and in confidence of its correctness that your orator was induced to make the purchase as aforesaid. But your orator has recently discovered since the making and delivering of his promissory notes described hereinbefore, that the agent who had been by them intrusted with the custody and disposition of their goods as aforesaid, had fraudulently wasted, abstracted and misapplied to his own use the goods and moneys of the concern to a very large value, and as your orator verily believes to a value which rendered the residue of the effects of the concern existing at the time of the aforesaid purchase wholly unequal to the discharge of its liabilities, so that, at the time of his purchase as "; ■ APPENDIX. 605 aforesaid the interest of the said in the said adventure was of no value, and your orator avers that at the time of said purchase he had no knowledge or notice nor cause for suspecting there had been any such waste, abstraction or misapplication as aforesaid, and he is not able at this moment to charge whether or not the said had notice thereof. But he is advised and charges that if it shall be made to appear in the progress of this suit that such waste, abstrac- tion or misapplication was known to the said at the time of the purchase aforesaid, then the suppression of the fact of such waste, abstraction or misapplication was a fraud on the part of said which will vitiate the purchase absolutely, and if it shall turn out that such waste, abstraction or misapplication was equally unknown to the said and to your orator at the time of the said purchase, and if it shall thus be made to appear that the esti- mate on which the purchase aforesaid was made was the result of mistake common to the said and your orator, in such event he is advised and insists that said purchase ought to be avoided, or he ought to be allowed a discount from his aforesaid ' promissory notes for the said value of the said 's moiety of the goods and moneys so as aforesaid wasted, abstracted or misapplied as aforesaid. And your orator charges that in the making of the estimate of the value of the interest of the sajd in the aforesaid adven- ture, the said and your orator were assisted by one , a clerk at the time in the employment of your orator, and that since the said purchase the accounts and correspondence connected with the said adventure have been by your orator intrusted'to the said ; that your orator cannot, without the assistance of the said , prepare an accurate account of such matters in time to be used in Court at the trial of the aforesaid actions, and that the said is at this time in , where he has gone for the purpose in part of settling up the business of the aforesaid adven- ture, and your orator truly believes that he will be enabled, on the return of the said , who is expected shortly to return to the , to show the certainty of the aforesaid waste, abstractions and misapplications as aforesaid, and to show fully, to the satisfac- tion of your Honor, his right to set ofl one-half part thereof against the demands of the said , now sought to be recovered against him ; and he verily believes that such offset will exceed the whole amount of their aforesaid claiOis. And your orator further charges that the said pretends that at the time of his, your 606 MARYLAND CHANCERY PRACTICE. orator's purchase of tte said ' ae aforesaid, he, the said , was ignorant of the fraudulent and improper conduct of their aforesaid agent, and your orator is not, at this moment ahle to gain- say this pretense of the said , although your orator is led by circumstances jecently come to his tnowledge to suspect that the contrary is the fact, and that the true reason which prompted the said to desire to sell out his interest in the afores9.id adyen- ,ture was his, the said '^ knowledge that their aforesaid agent had proved faithless, and your orator .expects that on the return pf the said he will be able to prove the fact that the said ^ had such knowledge. But he does now aver and charge that the said is at this time aware and fully knows that before and at the time of the aforesaid purchase the effects of the adventure had been greatly reduced by the fraudulent waste, abstractions and misapplications of their agent as aforesaid, and he well knows that your orator, at the time ,of said purchase, was ignorant of said frauds, and that if such inforniation had been coniinunicated to him at the time he would not have made the aforesaid purchase, and the said and the said well know that in prosecuting their aforesaid actions they are endeavoring fraudulently to extort from your orator the payment of moneys for which he has received no consideration, or if any consideration, one which is grossly inad- equate. In tender consideration whereof and forasmuch as your orator is wholly unable to defend himself at law against the fraudulent pretenses and suppressions of the said , and can have adequate relief only in this Court, where frauds are fully examinable into, and where an account may be taken of the aforesaid adventure and of the value of the effects thereof as assumed by your orator and the said at the time of the purchase aforesaid, and of the actual value thereof, as reduced by the wastes, abstractions and raigappli- cations of their aforesaid agent, and your orator may have such relief as may be rightly adapted to his case, either by a total annulment of the agreement of purchase, as aforesaid, or by dis- counting from the claims of the said a mpiety or other just share or proportion of the value of such wastes abstractions and misapplications as aforesaid, and in the event that it shall be made to appear that by reason of such frauds of their agent as aforesaid the assets of the said adventure were made inadequate to the pay- APPENDIX. 607 ment of the liabilities thereof, in such case by compelling the said to Dontribute to the pajment of said liabilities. To the end, therefore, that the said may answer the premises, and that an account may be taken under direction of this Court of the said adventure, as it was supposed by the parties to exist at the date of the aforesaid purchase, and as it really existed after proper adjustments for the lo^es occasioned by the fraudulent wastes, abstractions and misapplications of their afore- said agent, and that the said purchase may be annulled, and that the said may be perpetually enjoined from proceedings to enforce payment of the foresaid promissory notes, and that said notes may be delivered up to your orator, and that your orator may bave such further and other relief as his case may require, may it please your Honor to grant unto your orator the writ of injunction to the said , commanding and enjoining them not to proceed further in the actions aforesaid instituted by them against your orator in the until the further order of this Court, and also a writ of subpoena to the said to be directed, ^iommanding them to be and appear in this Court by Rome .certain day, to answer the pr-esmises and abide by -and perform such decree as may he therein passed, and as, &g. , for Complainant, [TChe foregoing form is inserted to show the skillful manner in which /rawcZ and bad faith can be charged by insinuation, rather than by direct averment. It is a specimen of skillful pleading. The bill was prepared by Mr. Thos. S. Alexander, but the case never came to a hearing.] No. 66. Gross-Bill, seeking the Enforcemmt oj Oontract, and the Sale of Pledged Securities. To THE HONOEABL?; . Humbly complaining show unto your Honor your orators, , partners, lately transacting business under the name and firm of that an heretofore filed his Bill of Complaint against your 608 MARYLAND CHANCERY PRACTICE. orators and one , touching certain matters of controversy relat- ing to contracts of sale of certain , wticli were entered into by your orators and the said , and a deposit of certain securities in the hands of the said — to secure the fulfillment of the said oofitracts by each of the parties thereto. Your orators show to your Honor that they have answered the said Bill of Complaint, and in their said answer have shown to your Honor that is not entitled to any relief in this Honorable Court, but on the con- trary thereof your orators, of right and by the rules and practice of equity, ought to have relief in the premises; all of which matters will more fully appear by reference to said bill arid answer. Your orators, further complaining, show unto your Honor that on they sold to the said shares of the ' — , a corporation duly created and instituted, at the price of a share, to be delivered by your orators at the expiration of days from the day of the said sale, or at any time within the said days, when the said -; should demand the delivery thereof. And that on the ' day of — - — ^ your orators sold to the said shares of the said stock, at a sharSi to be delivered by your orators at the expiration of days from the day of said sale, or at any time within the said days, when the said shpuld demand the delivery thereof. And your orators state that to secure the fulfillment of the contracts of sale herein above described by your orators and the sai^ on their respective parts, they deposited with the said the securities mentioned in the Exhibits A. and B., filed with the Bill of Com- plaint, exhibited by the said against your orators, which securities, and the terms on which they were deposited with the said , are truly described in said exhibits, as by reference to the same will fully appear. And your orators allege and charge that at the expiration of — ; days respectively from the days of sale above mentioned it was the duty of the said to pay to your orators the purchase money of said stock, with interest from the days of sale respectively, and ic was your orators' duty, simultaneously with said paymen,ts, to deliver the said stock. And your orators aver that at the expi- ration of the said days respectively, they were ready and willing to deliver the said stock to , and made known to him their readiness and willingness, and offered to him to transfer to him said stock on the payment of the purchase money with interest; and they are now ready and willing to transfer it to him on these APPENDIX. 609 just and equitable terms; but so it was, that tbe said refused to pay for tbe said stock, and has always since refused to pay for the same, although your orators have always been ready and will- ing to comply with their part of the said contracts of sale, and although this has always been known to the said ■. And your orators aver and say that the said has never at any time tendered to your orators the payment of the purchase money for the said stock, and that he did not, before the expiration of days from the days of the contracts of sale, demand the delivery to him of the said stock. Your orators further aver that on the , the day on which the first parcel of shares of stock was, under the contract, to be delivered by your orators, the said stock sold for and was worth dollars a share ; and on the , the day appointed by the contract for the delivery :' of the second parcel of stock, to wit : the parcel sold on the '- , the said stock sold for and was worth dollars a share. Your orators therefore show to your Honor that they are greatly injured by the failure of the said to comply with his said contracts, and they pray for such relief as this Honorable Court is competent to give them. To the end, therefore, that the said and the said may answer the premises, and that the said may be decreed to deliver to your orators the S3,id securities deposited with him bv your orators, an9 that the securities deposited with him by the said may be sold, and the proceeds of the said sale applied to the payment; to' your orators of such sums of money as he is entitled to receive in this Honorable Court in consequence of the above mentioned breaches of contract by the said ■; and the said may be decreed to pay to your orators such other sums as of right he ought to pay them ; and that your orators may have such other and further relief as their case requires ; and that your orators' cause may be heard at the time of the hearing of the cause instituted against ttem and the said by the said , and upon the same testimony. May it please your Honor to grant to your orators the writ of subpasma, directed to said , commanding them to appear in this Court, according to its rules, and answer the above Bill of Complaint, and abide by the decree of this Honorable Court in the premises. And your orators will ever, &c , &c. 39 Solicitors for Complainants. 610 MARYLAND CHANCERY PRACTICE. , No. 67. Bill for Sale against Unknown Heirs. To THE Hon Judge of the Ciecuit Couet of Baltimoeb City: The Bill of Complaint of -—^ — of tlie State of Maryland, humbly sheweth : That heretofore a certain of Baltimore City, deceased, was in his lifetime possessed of certain real estate lying and being in said city, and which ^)?as conveyed to him by a certain — by indenture bearing date the , and recorded among the land records of Baltimore City, in liber ^ folio ' , and the metes and bounds of which are contained in the annexed extract from said deed, marked A, and which is prayed to be made a part of this bill. And being so thereof seized and possessed sometime in the year of our Lord , he departed this life intestate, leav- ing your orators and numerous other heirs, whose names and resi- dences (if they are living) are unknown to your orators, and if dead, wliose legal representatives or their residences your orators are ignorant of. And your orators charge that said real estate is not susceptible of division or partition among the parties aforesaid with advantage to them, and that your orators are entitled to have the same sold and the proceeds thereof distributed among the said parties in pro- portion to their respective interests. And your orators charge, that it will be for the interest and advantage of all the said parties to sell the aforesaid real estate and to divide the proceeds as aforesaid, and" your orators are advised that a sale thereof cannot be had without the assistance of this honorable Court. Wherefore your orators pray that in view of the premises your Honor will pass an order of publication notifying the said parties of the filing of this petition, and will grant .such other and further relief as may to your Honor seem right and proper. And as in duty, &c. Sol. for Gomplaincmts. APPENDIX. 611 No. 68. Bill for Specific Performance. To THE Hon. The Bill of Complaint of — respectfully shows, that a cer- tain . is possessed of a certain lot of ground situate , which is described in a deed to said , a certified copy whereof is herewith filed, marked exhibit A, as part of this bill. And so being the owner of said property, the said con- tracted and agreed with your orator to sell the same to him for the sum and upon the conditions and stipulations contained in the written agreement between them, which is herewith filed as part of this bill, marked exhibit B. And your orator further shews, that in part performance of said g,greemen.t he entered into possession of the premises, and paid the first payment of to the said That he has since tendered to the said the balance' of the purchase money, and is ready and willing to pay the same, but that said refuses to receive it. Your orator avers that he has performed all the requirements of said agreement, on his part to be performed, but that said refuses to make a conveyance of the property to your orator, as he rightfully ought to do. To the end therefore that a decree for specific performance of said contract may be passed, and that your orator may receive a good and sufficient deed for the said property, aceording to the course of this Court. May it please your Honor to grant the writ of subpoena, &c. And complainant prays for such further and other relief as may be required, &c. Sol. for CoTnplairuimt. 612 MARYLAND CHANCERY PRACTICE. ^o. 69. Bill for Specific Performance. To THE HONOBABLE JuDGES OF THE ClECUIT CoTJBT OF Humbly complaining showeth unto your Honor, your orator, of That heretofore, to wit, on the day of , , then residing in County in this State, sold and agreed to convey unto a certain certain land in the town of , in County, in the State of , for the sum of dollars, and that the description of said land and all the terms and conditions of the said sale thereof were embodied in a written contract exe- cuted by the parties thereto, and that your orator herewith files a . true copy of said contract, marked " Complainant's Exhibit '," and which he prays may be taken as part of this his bill. That the said , by writing executed on the day of , assigned all his interest in the said contract to your orator, as will appear by a true copy thereof, to be found in Complain- ant's Exhibit , above referred to. That on the day of there was due by your orator on the said sale the sum of , and that on that day, and ever • since, he has been ready to pay the said amount, and has repeat- edly offered to pay the same upon receiving a deed in fee for the property so as aforesaid conti acted to be conveyed, but that no such has ever been tendered to him, though he has often requested its execution and delivery. That the said hath departed this life, having first duly made and published his last will and testament in form to pass real estate according to the laws of the State of , and that the said will has been duly admitted to probate, and is now of record in the office of the Register of Wills of — in this State, and that your orator will be ready at the hearing of this cause to pro- duce a duly authenticated copy thereof. That your orator is advised that by the true construction of the said will the legal title to the land so as aforesaid sold to said is now vested in , the devisee and only son of the said testator, , subject to the contract aforesaid, and that APPENDIX. 613 the title to all the moneys remaining due thereon at the time of the death of the said testator are by force of the same will vested in , who has intermarried with, and is now the wife of r — , but your orator submits the construction of said will to this Hon- orable Court. That your orator, as assignee of the said , as aforesaid, is now ready and offers hereby to pay the balance aforesaid due on said purchase, upon receiving at the time of such payment from the said a deed pursuant to the covenant entered into by his ancestor as aforesaid, such payment of said balance to be made to the said , and — ^ , his wife, or to such person as this Honorable Court may hold to be entitled thereto. To the end, therefore, that the said , and may upon their separate and respective corporal oaths answer the premises, and that by this Honorable Court it may be adjudged, ordered and decreed that the said do execute, acknowledge and deliver unto your orator a valid and sufficient deed in fee for the land described in the contract of sale aforesaid between the said , (the assignor of your orator as aforesaid,) and the said , deceased, upon payment by your orator to the said , (or other person whom this Court may adjudge to be entitled to receive the same,) of the balance due by him as aforesaid, and that your orator may have all such other and further relief as his case demands. May it please your Honor to grant unto your orator the writ of the State of of svipoena to the said , and , his wife, to be directed, commanding them on a certain day and under a certain pain to be therein specified to be and appear before this Honorable Court to answer the premises and stand to, abide by and perform such order, direction and decree therein as to your Honor may seem meet. '■ — , Cofmplairuird' s Solicitor. 614 MARYLAND OHANOERY PRACTICE. No. 70. Bill for Injunction, and an account by a part owner of a vessel. To THE HONOEABLE . JuDGE OF THE ClECUIT CoURT OF Baltimoee City. Thfe Bill of Complaint of of the City of Baltimore, humbly shows unto your Honor that your orator is part owner of the steamship , of the Port of Baltimore, in which a certaan • - and of the City of Baltimore, are jointly interested with hirix, each patt owner being entitled to one-third, and youT orator files herewith as part of his bill of complaint a Copy of the bill of sale for the same to yoiir. orator, and the said —, said copy being inarked Exhibit A: that your orator and the said ^-^ obtained possession of the vessel on the — ^ day of , and that the said — — ' — soon afterwards obtained the sole control of the said steamer and have been since employing in such voyages as they deemed best, without the assent, or of consultation with your orator, and without accounting to him for the profits of any of the three voyages which they have made; that a large expense has been incurred in placing repairs and improvements upon the said vessel, and in various necessaries in connection with her use, and yoiir orator has been compelled to pay and has paid a considerable sum of money for repairs upon the said vessel, the receipts for which your orator files herewith as Exhibit B. - Further complaining, your orator shows unto your Honor that said are without means other than their share in the said steamer, upon which there is an outstanding mortgage' for more than her market value, and under which possession has been taken by the mortgagee, and they are wholly insolvent, that they have received and appropriated to their own use all the proceeds and profits derived from freight and use of the vessel on the first voyage, and part of the second voyage, without accounting to your orator for any part thereof, and without applying any part to the expenses incurred in fitting out and repairing the vessel, and so it is that your orator, whilst receiving none of the profits, remains responsi- ble for a large amount of expenses yet unpaid, and can obtain no settlement for the bills which he has already paid. APPENDIX. 615 Further complaining, your orator shows that the said Tassel is now lying in the port of Baltimore, having brought up a large cargo consigned to various parties in the City of Baltimore, and the said are about to collect the freights, and, unless restrained by the interposition of this Honorable Court, will collect the same and refuse to account with your orator or apply the same to the payment of the debts; and your orator further shows unto your Honor that an amount of about dollars for freight will be due on account of the voyage, just concluded, from copartners trading as — : Further complaining, ygur orator shows unto your Honor, that he is remediless at the Common Law, and that he is advised that he is entitled to an account from the said , and also to the writ of injunction restraining them from collecting, and the said for paying over the said sums due for freight upon the said voyage until the further order of this Honorable Court. To the end therefore, that the said may be compelled to disclose what freight he has received, for what service and from whom they have received the same, and to account with your oraitor for his share of the profits arising from the use of the said vessel, and that they may also be compelled to pay over to your orator the amounts paid by him for repairs upon said vessel, and that the said may be meanwhile restrained from collecting, and said from paying over to said any freight already earned by the said vessel. May it please your Honor to grant to your orator the writ of injunction enjoining and strictly prohibiting the said from collecting, and from paying over the said freight to said until the further order of the Court and also the writ of sitb— pcena to be directed to the said commanding them to be and appear in this Honorable Court by a named day to answer the premises, and to abide by, and perform such decree, as your Honor may pass in the premises. As in duty bound, &c . Oomplainant' s BolicUors. [Affidavit to be annexed j 616 MAEYLAND CHANCERY PRACTICE. No. 71. Bill for' Partition. to the honoeable judge of the clecuit couet of Baltimoee City: The Bill of Complaint of , humbly complaining, shows to your Honor that a certain of Baltimore City, died on or about the day of , intestate, leaving his wife, who has a dower interest in the hereinafter described real estate, and his children and heirs at law to certain real estate situated in Bal- more City, fully described in the exhibit herewith filed as part of this bill, and marked exhibits . And your orators further show that all of the heirs as aforesaid are of age, and reside in the City of Baltimore as aforesaid, but that hath married a certain , and that the said hath made an assignment of all his interest as aforesaid in trust to the said . And your orators further show, that the said — hath made an application for the benefit of the Bankrupt Act of the United States, and that no trustee or assignee of his assets has been appointed by the power authorized so to do, but that the said hath a dower interest to said estate, surrendered by the said as aforesaid. And your orators further shew, that the real estate hereinbefore described, is not susceptible of division, and that no division could be made, except by greatly injuring and depreciating the value of the said real estate. To the end therefore that the said may answer the several matters and things hereinbefore Stated, and that the said real estate may be sold and that your orators may have such further and other relief, as their case may require. May it please your Honor, to grant unto your orators the writ of subpoena, &c. Sol. for Complainants. APPENDIX. 617 No. 72. Bill of Interpleader. To THE Hon. The bill of complaint of respectfully shows: That complainant holds the- sum of dollars in cash, which he obtained in the following manner. [Here state the circumstances.] That complainant has no claim on said fund whatever, and desires and tenders to pay the same into this Court, under this proceeding. That said fund is claimed by and respectively, each of whom insists that your orator shall pay the same to him and each of said parties has notified your orator, that if he pays the fund to the other, he will be held liable to pay it again. That your orator is embarrassed and knows not which of said claimants is lawfully and rightfully entitled to the fund in ques- tion. That your orator is acting in good faith and is not in collusion with the defendants or either of them. That , one of the defendants, has notified your orator that unless the fund is paid to him within days, he will institute suit at law for the recovery thereof. And your orator avers, that under the circumstances set forth, and to avoid the risk to which he is subjected, he is entitled to relief in this Court. To the end therefore that the said and may be re- quired to interplead, and that your orator may be directed to bring said fund into this Court for adjudication. May it please your Honor to grant the writ of subpoena, &c. Sol. for Complainant. [AflSdavit annexed.] 618 MARYLAND CHANCERY PRACTICE. No. 73. Answer of a Defendant to the foregoing Bill. To THE Hon. The answer of to the Bill of Interpleader filed in tjiia Court by , respectfully shows: 1 . That he admits the fact that the complainant holds the money as alleged in his said bill, and that complainant is a mere stake- holder, having or claiming no interest therein 2. This respondent avers that he is rightfully entitled to the said fund because [here state the facts relied on. J 3. But this respondent admits the right of the complainant to file this bill of interpleader, and consents that the fund may be paid into this Court, as prayed for by him. And that a decree may be passed requiring this respondent and to interplead and set forth their respective rights to the said fund. And as in duty, &c. Sol. for A. B. No. 74. Decree in the above case. In Cikouit Couet This cause having been submitted, and the defendants in their answers having admitted the facts alleged, and expressed their assent to the prayer of the ,bill ; It is thereupon this by the Court adjudged and ordered, that the complainant pay to the clerk of this Court the sum of dollars, acknowledged to be in his hands, less the amount of the complainant's costs to be taxed by the clerk. And it is further ordered, that the said and do interplead, and set forth their respective, claims to the fund in question. APPENDIX. 619 No. 75. Bill fot Injunction to Stay Proceedings at Law. To THE Honorable the Judge of the Gieguit Ootjrt of Balti- more City : Tie Bill of Complaint of . ol' City, respectfully repre- sents to your Honor that heretofore, on the day of . a judgment was rendered against your complainant in the Court of City, in favor of , for the sum of - dollars, with interest from Said last mentioned day, until paid, and costs ; that your complainant prayed an appeal from said judgment to the — — •- Court, and immediately filed an appeal bond in said case, duly approved, and which said appeal is still pending and" undecided in the Court. ^ Your complainarnt further states that on the day of , long after the said appeal had been prayed, and said approved appeal bond had been filed, and whilst the said appeal was htill {landing and undecided as aforesaid, the said , by his attorney, without leave asked or obtained from the said Court, sued out a writ of the State of — ' — of fieri facias, directed to the sheriff of — — City,, commanding the sheriff to levy and make the amount of said judgment, interest and costs of the property of your complain- ant, and under and by virtue of which said writ of fi^ri fadoi the said sheriff has seized and taken in execution a large number of articles of personal property belonging to your complainant, and threatens to sell the same at public auction under and in virtue of said writ Yout complainant exhibits herewith a copy of the said appraise- ment, as a p&,rt of this bill, marked No. 1, from which will be seen the specific articles seized, and their appraised value. Your complainant files herewith a copy of the appeal bond, which was filed and approved as aforesaid as a part of this bill, marked Exhibit No. 2, from which it will appear that said bond was so filed and approved long before the issuing of said fieri facias Your complainant further says that he is informed, and he believes, that the attorney for said plaintiff is under the impression and has acted under the belief that said appeal will hot properly lie, and that the action of the Court in receiving and 620 MARYLAND CHANCERY PRACTICE. approving said appeal bond was a mere nullity in law, whereas your complainant is advised, and respectfully insists that whether an appeal will lie or not, in this case it can only be determined by the Court of Appeals itself, and that the ' only and proper mode, for the purpose of determining the question of the jurisdiction of that Court, was open to the said plaintiff upon a motion to dismiss, and he is further advised and respectfully insists, that the action of the Court, in the acceptance and approval of said bond,' was regular and efficacious to stay execution on said judgment,' and was a supersedeas thereof. But so it is, that your complainant's property is now held in execution by said sheriff, who threatens to sell the same, and will execute such threat unless restrained from doing so by injunction from this Honorable Court. To the end, therefore, that the said — — and the sheriff of City may be restrained from further proceedings upon and under said fieri facias, pending the said appeal, and until the further order of the Court, and that your complainant may have such other and further relief in the premises as the nature of the case and equity may require, may it please your Honor to grant unto your complainant the writ of the State of of subpoena in the usual form, to be directed to the said , and to , sheriff of city, commanding them and each of them to appear in this Honor- able Court, and then and there to answer this bill and the mat- ters therein contained, and to stand to and abide such decree or order as may be made in the premises ; and in the meantime may it please your Honor, by the order and injunction of this Honorable Court, to forbid and restrain the said and the said sheriff and his deputies from all further proceedings under the said writ of fi^i facias until final hearing or the further order of this Court. And may it also please your Honor to grant unto your complainant such other and further relief as the nature of the case and equity may require. , Solicitor for ComplmTumt, [AflSdavit annexed ] APPENDIX. 62 1 No. 76. Bill by Feme Covert JTrader to /Stay Proceedings at Law. To THE Honorable , Judge of the. Court for Balti- more CiTi : The Bill of Complaint of , of — , respectfully repre- sents — That being the wife of , to whom she was married on or about the day of , she commenced business on her own account, in the City of , on or about the day of -, and with capital furnished to her by r , established herself in said city as a — , which said business she, the complainant, has carried on and conducted in said city in her own name and for her own exclusive benefit since , having on hand at her place of business. No. Street, a large stock of and a stock of raw materials for the manufacture of the same; of the value of about , all of which belong exclusively to the complainant, and in the separate use of the same she is protected by Art. XLV. of the Code of Maryland. That on or about the day of this complainant was interrupted in her said business by , the Sheriff of , who, through his deputies, seized upon and took possession of her aforesaid stock of materials, both manufac- tured and unmanufactured, under and by virtue of 'two writs of attachment issued out of the r Court of against her hus- band, , one at the suit of for , the other at the instance of for . All of which being contrary to equity, and your orator being remediless in the premises, save by the interposition of your Hon- orable Court as a Court of Equity, prays your Honor would be pleased to intervene by a writ of injunction, directed to , Sheriff of , and said and said , commanding them and each of them to forbear further prosecution of the said writs of attachment until the further order of this Honorable Court in the matter, and this complainant praying to be so relieved, and also for such further and other relief as she may be entitled, prays suhpcena may be issued to the said , Sheriff of , and the said and said , commanding them and each of them to be and appear in this Honorable Court on a day to be 622 MARYLAND CHANCERY PRACTICE. therein named, then and there to answer* this bill of complaint and abide by and perform such decree as the Court may be pleased to pass in the premises, and as in duty, &g. Solicitors for Complairumt. [*NoTE. — In these cases, in Baltimore City it is not the practice for the sheriff to answer — he obeys the injunction, and takes no part in the controversy.] No. 77. Petition ashing the Court to iSitspend the Execution of a Decree for the Sale of Mortgaged Property. A. ) V. > In Circuit Cotjet ■-. B. j To THE Honorable , Associate Judge of , now sittincj IN said Court : The petition of respectfully sheweth — That there was due and owing by h — on the day of last dollars for — months' interest on the mortgage debt in the proceedings mentioned, and that the principal of said mort- gage debt will not be due until the day of -. Your petitioner further sheweth that the note given by her to secure said interest was not paid at maturity, and the trustee heretofore appointed in this cause, , has advertised the property for sale, to take place this day at — o'clock, P M. Your petitioner fur- ther sheweth that on yesterday,, the instant, she tendered through — attorney, , to the said trustee the whole amount of the interest note, which is now due, together with interest on it to date; also the costs of Court now due, and the costs of advertising, together with the half commissions allowed to trustees in such cases, and that the said trustee refused to receive the same. Wherefore your petitioner prays your Honor for leave to pay the said sum of money, amounting to , into this Court, and that your Honor will pass an order suspending the said sale and the present execu- tion of said decree. And she will pray, &c. -, Solicitor for — ■ — . APPENDIX G23 No. 78. Or deft Passed on the foregoing Petition. In Circtjit Coust Baltimore City Ordered ttat the petitioner tave leave to pay into the Court the amount alleged to be due by the petitioner, and that the clerk receive the same and deposit it to the credit of this cause. And it is further ordered that the trustee suspend all proceedings in relation to the sale of the property until the further order of this Court, provided a copy of* said petition and of this order be served on him before said sale takes place. [N. B. In this case Pinkney, J. decided, that even where a mortgage stipulated that on non-payment of interest, the whole debt should be considered due and payable, such a provision is in the nature of a forfeiture, against which a Court of Equity may relieve, and that on payment of the interest and the expenses accrued, before a sale is made, the Court will suspend the execu- tion of the decree. ( Yide 5 Munf. 495, Va. Rep.) Ross vs. Gahle, 1866, fol. 20.] No. 79. Pill hy a Guardian or Proohein Ami, for a sale of an Infant's estate. The Bill of Complaint of A, of County, guardian (or next friend,) to B, and D, of said county, infants under the age of twenty-one years, humbly shows, that the said B, C and D, are seized as tenants. in common, of a tract or parcel of land lying in said county, called and containing acres, more or less, and of a house and lot in the city of which is particularly described in a deed of conveyance from one E to F, lately deceased ; who was the father of said infants; and of which deed, a copy is filed as part of this bill. It further shows, that it will be for the interest and 624 MARYLAND OHANOERY PRACTICE. advantage of'tlie said infants to sell the aforesaid real estate, and to invest the proceeds in, some productive fund for their benefit. To the end therefore, that the said B, and D, may answer the premises; and that the aforesaid real estate, may be sold under the authority of this Court ; and that your orator may have such further and other relief as his case may require. May it please your Honor, &c. [with the usual prayer for pro- cess.] [Note.— The infants are to be made defendants, likewise in the prayer for process, — ^they must appear and answer by guardian' appointed' for the purpose.] No. 80. Petition by Mortgagee vs. Mortgagor for an Injunction and Receiver. A. vs. B The Petition of C, the complainant humbly shows that heretofore he filed his bill of complaint in this Court against the defendant for sale of certain real estate, which is therein charged to have been previously mortgaged by the defendant to the complainant to secure the payment of a sum of money at a day long since passed; to which said bill the defendant answered, and other proceedings now remaining in this Court, will appear. And your petitioner further charges that since the filing of said bill the said defendant has commenced, and at this time is dili- gently engaged in cutting the timber trees growing on said land, and committing other waste and destruction to the premises. That the said real estate in its present condition is a very inadequate security, and if now brought into market would not sell for suffi- cient to discharge the debt now charged thereon ; and that the said defendant is in insolvent circumstances, and to the knowledge of this petitioner, has no other visible property, out of which the payment of any deficiency arising on said sale may be satisfied. APPENDIX. 625 Your petitioner therefore prays that an injunction may be issued to restrain the defendant from cutting any timber or wood growing on said land, or committing any other waste or destruction of the mortgaged premises. " And that a receiver may be appointed to take charge of said real estate ^and collect the rents and profits thereof in order that they may be applied, under direction of this ■Court, to the payment of your petitioner's claim; and that your petitioner may have such further or other relief as his case may require. And as, &c. [See 4 Md. 98: 1 Md. 539. 7Md.-408 3 Md. 480.] [Note. — When the petition alleges any new matter, it should be on bath in the usual form.] No. 81. Common Order for Hearing a Petition. Ordered by the Court this day of that the matter of the within petition stand for hearing on the ; provide a copy of the said petition and this order be served on the defendant before the instant. No. 82. Order for hearing and taking Depositions. Ordered by the Court this day of that the matter of the within petition stand for hearing on the ; and each party is authorized to take depositions before any Justice of the Peace, to be read at the hearing on giving to the opposite party three days notice as usual : provided that a copy of this order, together with a copy of the said petition, be served on the opposite party, before the instant. 40 626 MARYLAND CHANCERY PRACTICE. No. 83. Order for hearing exceptions and taking depositions in relation to claims filed under a Creditor s hill. Ordered by the Court this — ^ day of that the exceptions to the auditor's report filed in this cause, stand 'for hearing on the , next ; and that any creditor of the deceased, whose claim is stated or noticed in the auditor's report, and also any of the par- ties to this suit, be and they are hereby severally authorized to take the depositions of any witnesses in relation to such claims, before any Justice of the Peace ; provided that three days notice be given as usual by the creditor in whose behalf the testimony is proposed to be taken to some two or more creditors, or one or more of the parties or their solicitor; or by one or more of the par- ties in whose behalf the testimony is proposed to be taken to some two or more of the creditors or their solicitor. But the creditor against whose claim the testimony when taken is intended particu- larly to operate, must himself or his solicitor be notified. And depositions so taken, subject to all legal exceptions, may be read in evidence in the cause : provided they are filed on or before the next. No. 84. Petition for an order to take depositions to be used at the hearing of the motion to dissolve. vs. D. To THE Honorable The petition of C, the complainant in this cause, showeth that the defendant has filed his answer, and moved to dissolve the injunc- tion heretofore granted in this cause. That your petitioner is desi- rous of taking testimony, in reference to the allegations in the bill of ■complaint, to be used at the hearing of the aforesaid motion. He therefore prays that your Honor will pass an order, authorizing him to take testimony for the purpose aforesaid. And as, &c APPENDIX. 627 No. 85. Order on the Petition. On the aforegoing petition it is ordered by the Court this , that the parties be and they are hereby authorized to take testi- mony before a commissioner of this Court, on giving days notice thereof to the adverse party. And that the same be used at the hearing of the motion to dissolve the injunction, subject to all legal exceptions ; provided the said testimony be taken and filed on or before the next. ,, No. 86. Order removing a Receiver and appointing another in his stead. Whereupon it is ordered that J. S., of the City of , be and he is hereby appointed a receiver, with power and authority to, receive and take charge and possession of the goods, wares and merchandise, books, papers and effects of and belonging jointly to the said C. A. W., J. B W , and J. N. W., lately trading under the name and firm of W. W. & Co. Ajid also with power and authority to sue for and to collect the debts due unto the said firm. And the said C. A. W., J. B. W., and J. N. W., and each of them, are hereby required to yield up and deliver unto the said J. S. the goods, wares and merchandise, books, papers and effects of or belonging to the said firm. And it is further ordered that before the said J. S. proceeds to act as a receiver by virtue of this order, he shall give bond to the State of Maryland in the penalty of thirty thousand dollars, with surety, to be approved by the Court, for the faithful performance of the trust reposed in him by this order, or which may be reposed in him by any future order in Ihe premises. And it is further ordered that the said D. W. be and he is hereby removed from the office of receiver, to which he was appointed by the order of this Court of the instant ; that he make report, and render unto this Court a full and fair account of 628 MARYLAND OHANOEEY PRACTICE. all the property or money which may have come to his hands, and of all his proceedings while he acted as such. And he is hereby directed and required to yield up and deliver over unto the said S., so soon as he shall have been qualiiied to act as receiver, as before mentioned, all the goods, wares and merchandise, books, papers and effects of the said fiMn which may have been received by him, the said W., or which he may now hold or have under his control.' No. 87. Order directing a Sale of perishable property in the hands of a Receiver. Upon consideration of the report of the receiver it is ordered that I. S., the said receiver, be and he is hereby authorized and required, to sell the goods, wares and merchandises in the said report men- tioned, on a credit of months, for approved endorsed notes, according to the usual course and manner of selling goods at auction in the City of . And he is hereby further authorized and directed to sell any other goods, wares and merchandise being the joint property of the parties, which may come to his hands, in such manner as he may deem most beneficial and beS^ for the inter- est of all concerned. No. 88. Exceptiona to Mndenoe under the Provisions of the Code, Article V. Section 26. 0. 1 vs. > In — . . P. N The complainan-t excepts : 1. To the competency of A. B., a witness examined on the part of the defendant to prove any fact in this cause. [4 Md. 362.] APPENDIX. 629 .2. To the admissibility of so muob and such parts of the depo" sitiou of E, a witness examined on the paft of tbe> defendant, as professes to prove the contents of a letter which is supposed to have been addressed by the complainant to the defendant. 3. To the admissibility of so much and such part of the deposi- tion of F. & G., witnesses examined on the part of the defendant, as professes to prove any mistake in the agreement in the proceed- ings mentioned, such proof not being relevant to any issue joined in the cause. 4. &c., &c. No. 89. In Abatement — Infaancif of Compiamant. A. ) vs. } In Cibouit Court B. To THE Hon. The plea of B to the bill of complaint of A, in this cause exhibited: this defendant doth plead and aver, that the said com- plainant at the time of filing his said bill, was and now is an infant under the age of twenty-one years. Wherefore he prays judgment, and to be dismissed with his costs. 5 Gill, 215. H D. E. (With affidavit.) i^i- M Defendant. No. 90. Coverture of Complainant. ^- 1 B. ] To THE HOSP. The plea of B to the bill in this cause filed: this defendant pleads and avers, that the complainant at the time of filing her 630 MAEYLAND OHANOEEY PRACTICE. said bill was and now is under coverture of her husband, who is living and competent to sue in her behalf. Wherefore, &c. H. D. E. Sol. for J)efendcmt. No. 91. That Defendant is not Administrator. A. vs. y In Oiecuit Ooukt tl B. To THE Hon. The plea of'B to the bill of complaint filed against him, avers, that he is not nor has been administrator of E, deceased, as alleged in said bill. Wherefore, &c. H. D. E. 8ol. for Defendant. No. 92. That Qomplainant never administered as alleged. A. f vs. > In Oiecuit Couet . B. > To THE Hon. The plea of B to the bill filed in this case avers, that the com- pla,inant never administered on the estate of E, as he has alleged in his bill. Wherefore, &c. H. D. E. Ante, p. 121. for Defendant. APPENDIX. 631 No. 93. Plea of a former decree. That heretofore, and before the complainant exhibited his 'pre- sent bill in this Court, to wit : on the day of the said complainant filed his bill of complaint in this Court against this defendant, praying for a specific execution of the identical agree- ment which is set out in his present bill of complaint, by a decree, requiring this defendant to convey unto the complainant the pre- mises in the said agreement mentioned, upon payment by the said complainant to this defendant, of the sum of which is therein alleged to be the balance of the purchase money for the said pre- mises, then due to this defendant, and being the same sum of money which is now alleged to be due on account thereof. To which said bill this defendant answered, and such other proceed- ings were had that afterwards, to wit : on the day of by a decree passed in the cause, it was adjudged, ordered and decreed, that the complainant's said bill of complaint be dismissed, and that the complainant pay to the defendant his costs of suit, to be taxed by the register ; as by the said decree duly signed and enrolled in this Court appears. All which matters and things,* this defendant doth aver and plead in bar of the complainant's present bill of complaint, and prays, the judgment of this Court, whether he shall be compelled to make any further answer to the said bill, and prays to be hence dismissed with his reasonable costs in this behalf sustained. [Ante, p. 126.] . No. 94. '^Plea of a former suit depending. That heretofore, and before the said complainant exhibited his 632 MAEYLAND GHAKtIEEY PRACTICE. defendant, as the said complainant prays by his present bill; to which said bill this defendant answered, and other proceedings were thereupon had: and the said former bill and proceedings now remain depending in this Court, and the said cause is yet undetermined and undismissed. All which matters and things, &c. &c., [concluding as in the lastpreceding form from the asterisk.] [Ante, p. 125.] No. 95. Plea of a Release with Averments neyati'oing fraud, &c., and with an Answer to support the plea. [For the commencement pursue the form of a plea (No. 93) to the Asterisk.]. As to so much and such part of the said complainant's bill, as seeks an account of the several dealings and transactions between the said complainant and this defendant previously, and up to the day of and prays that the balance, if any, which shall be found due from this defendant, upon taking such account may be paid by him to the complainant, this defendant doth plead thereto, and for plea says : That previously to the filing of the complainant's said bill, to wit : on the said day of the said complainant in con- sideration of the sum of then paid to him by this defendant, by a certain writing of release under his hand, and sealed with his seal, which this defendant has ready to be produced into this Court, did for himself, his executors and administrators remise, release, and forever quit claim unto this defendant, (among other things,) the several matters and things in the said bill mentioned and complained of, (and an account whereof is thereby sought against this defendant as aforesaid;) and all suits and demands whatsoever, both at law and in equity, which the said complainant then had or might thereafter have in respect of the several deal- ings and transactions, matters and things in the said bill men- tioned, or any of them. And this defendant avers, tiiat the said release was freely, fairly, and voluntarily given, and executed by APPENDIX. 633 the said complainant, on the day the same bears date ; and that the said eompIainaBt -well knew the nature and effect thereof, pre- viously to giving the same, and that the sum of so paid by this defendant to the said complainant as aforesaid, was a full and fair equivalent for any demand which the said complainant conld or might have against this defendant in respect of the several mat- ters therein, and in the said bill also mentioned' and every one of them. And therefore this' defendant pleads the said release in bar, to so much of the complainant's bill, as is hereinbefore pleaded to, and prays the judgment of this Court whether he shall be com- pelled to make any furth|r answer to so much of the said bill, as is hereinbefore pleaded to. And this defendant not waiving his said plea, but insisting thereon, for answer to the residue of the aforesaid bill, and in support of his aforesaid plea, saith that he denies that the said release was unduly obtained by this defendant from the said comjdainant, or that the said complainant was igno- rant of the nature and effect of such release, or that the con- sideration paid by this defendant to induce the said complainant to execute the same, was at all inadequate . to the just claims and demands of the said complainant against this defendant in respect of the several dealings and transactions in the said bUl mentioned, or any of them. And this defendant further denies, &c &c. (With affidavit.) [Pfea of Furchaser for valuable consideration, without notice, as given by Mr. Alexander, is omitted, because the defence can be availed of better in an answer. Ante, p. 123.] No. 96. Plea of the Ad, of Lrniitatimis. That if tie eomplainant ever had any cause of action or suit against this defendant for or concerning any of the matters in the said trill Bxeationed, whkh this defendant doth in no sort admit. 6S4 MARYLAND CHANCERY PRACTICE. sDch. cause of action or suit did accrue or arias above three years before the filing of the said bill, or before serving or suing out pro- cess against this defendant, to appear to and answer said bill ; nor did this defendant at any time within three years next before the said bill was exhibited, or process served on, or issued out against this defendant, to appear to and answer the same, promise or agree to come to any account for, or to make satisfaction, or to pay any sum or sums of money for, or by reason of the said matters charged in said bill. All which matters and things, &c. [Ante, 522.] [Note. — Any statement that the party, pleads and relies upon the statute as a defence, will avail without much regard to form. 4 G. & J. 1.] No. 97. Plea of the /Statute of Frauds to a Parol Agreement, as to so inuch of the Bill as seeks Discovery or Relief as to the Agreement. (As to so much of said bill as seeks to compel this defendant spe- cifically to perform the agreement in said bill mentioned, to have been made and entered into between the complainant and this defendant for sale by this defendant unto the complainant, of a certain messuage or tenement in the bill mentioned, or as seeks to compel this defendant to execute a conveyance of such messuage or tenement to the complainant, pursuant to any such agreement, or as seeks any other relief relating to such messuage or tenement, or as seeks any discovery from this defendant concerning any agreement made or entered into between the complainant and this defendant, for sale by this defendant to the said complainant of the said mes- suage and tenement, and not reduced into writing, signed by this defendant or some person by him thereunto lawfully authorized.) For plea thereto this defendant says : That neither this defendant, nor any person by him authorized, did ever sign any contract or agreement in writing, for making and executing any sale or conveyance to the complainant of the land and premises in the bill mentioned and described, or any interest APPENDIX. 635 thereof, or to any such effect, or any memorandum or note in ■writing, of any such agreement. All which this defendant doth aver and plead in bar to so much and such parts, &c. And this defendant not waiying his said plea, &c. This is a pure plea of the statute. If the bill charges fraud, part performance or any other circumstance to avoid the opera- tion of the statute, it ■will be necessary to negative such charges in the plea, and also by an answer in support of the plea It must be under oath. The defence may be . taken in the answer. [ Vide Story's Eq. Jur. se with interest and coste as aforesaid; on or before the instant, the aforesaid lands and premises, or so much thereof as may be necessary to discharge the complainant's claim then remaining unsatisfied, be sold. That, &c., [according to the general form of a decree for a sale. J [Note.— A d'eeree for a sale on a creditor's bill does not differ in form from any other decree directing the property " in the proceed- " ings mentioned" to be sold. But it is usual to add an order to the trustee' to give notice to creditors to file their claims with the clerk of the Court within a specified time. _If this notice is not given contemporaneous with the advertisement of sale, it may (must) be given subsequently.] APPENDIX. 637 No. 100. Decree Vacating a Ckmveyance as Fraudulent in favor of a Purchaser at Sheriff's Sale. [After the commencement.] That the deed in the proceedings mentioned, from the defendant A, to the defendants B and G, bearing date on the day of ,'and the record thereof be, and the same are hereby set aside, and declared to be held and taken to be utterly null and void, to all intents and purposes wHktever, so far as the' same may interfere with, or in any manner affect the right and claim of the complain- ant, as purchaser of the several parcels of land specified in the said r^urn, to the writ of fieri facias in the proceedings men- tioned, and that the said defendants pay to the complainant, his costs of suit, to be taxed by the clerk. No. 101. Decree AnnvUing a Conveyance as Fraudulent in favor of Oreditors and Directing a Sale. [After the commencement.] That the deed in the proceedings mentioned from the defendant A, to the defendant B, dated on the day of , be, and the same is hereby declared and taken to be utterly null and void as against the complainant, aixd all other creditors of the said defen- dant A, who may come in as parties to this suit ; and that the property in the said deed mentioned, or so much thereof as may be necessary to discharge such claims, be sold. That, &c., [in the common form of a decree for a sale, and comcluding with a direc- tian that the trustee give notice to the creditors of A, to file their claims.] 638 MARYLAND CHANCERY PRACTICE. No. 102. Decree for Partition between Joint Tenants or Tenanis in Qmrnnon. [After the commencement.] Ttat there be a partition of the tract or parcel of land in the proceedings mentioned, called B. P., amongst the parties to this suit, so that nine parts thereof in twelve parts to be divided, shall be allotted to the complainant A, and two other parts thereof in twelve parts to be divided, shall be allotted to the complainant B, and the remaining one-twelfth part thereof shall be allotted to the defendant 0. And to enable this Court to make the said partition, it is further adjudged, ordered and decreed, 'that a commission issue in the usual form to (5 persons) of County, authorizing them or any four or three of them, to enter upon, walk over and survey the said land, and to divide the same into twelve equalparts, having regard to quantity and quality, whereof nine contiguous parts shall be allotted to the said complainant A, and two contiguous parts shall be allotted to the said complainant B, and one part shall be allotted to the said defendant C ; and that the said com- missioners make out or cause to be made out a plat and certificate of said land, and of the division thereof, with the beginning and courses, and an accurate description of the said estate, and of the parts thereof, and to the said commission there shall be annexed the usual oath of office. [Note. — The following clause was added by Bland, Chancellor-, to a decree, passed in a cause where the defendant, an infant, resisted the decree. Its propriety is very obvious, although no other case has been discovered in which a similar provision has been made.— T. S. A.J [Affirmed 1 Md. Ch. Dec. 223, by Chan. Johnson.— B. C. B.] And that the said commissioners be authorized by the commis- sion, to call upon the parties to produce all such deeds, writings and muniments, relating to the said estate, as may be in their power; and also to examine and take the depositiop of witnesses relating to the matters in question, as they may think fit; all APPENDIX. 639 which proceedings of the commissioners, together with the plats descriptions, and documentary or other evidence, made, produced to, or taken by them, to be returned by them with their commis- si on to this Onnrf No. 103. Final Decree for Partition {Common Form.) A&B ) vs. [ In D. ) C& This cause standing ready for hearing and being submitted, and no exception having been taken to the return of the commissioners appointed to make partition of the real estate mentioned in the proceedings as allowed by the rules of this Court, the proceedings were read and considered. It is thereupon this day of , by , and by the authority of thisOourt adjudged, ordered and decreed, that the return of the commissioners appointed to make partition of the real estate in the proceedings mentioned, and the partition thereof by them made be, and the same are hereby ratified and confirmed. And it is further adjudged, ordered and decreed, that the com- plainant B, shall hold in severalty, and not jointly or in common with the other parties to this suit, all that part of the land in the proceedings mentioned, which is described in the return of the aforesaid commissioners and the plat accompanying the same, as lot No 1, and beginning for the same (it being part of the tract or parcel of land called B. P.) at the beginning of the whole tract, and running thence, &c. &c. And it is further adjudged, ordered and decreed, that the com- plainant A, shall hold in severalty, &c. &c. And it is further adjudged, ordered and decreed; that the costs of the aforesaid partition, and other costs of this suit be defrayed by the aforesaid parties in proportion to their respective interests, as established by the interlocutory decree heretofore passed in this cause. 640 MAEYLAND CHANCERY PRACTICE. No. 104. Interlocutory Deeree for Partition amongst Devisees with Special Directions. [After the commencement. j That there be a partition of the real estate whereof the late J. E. H., died seized, amongst his said devisees, the parties to this suit, in the manner, and upon the principles prescribed by his last will and testament: and for that purpose all the real estate of which the said testator died seized, which may remain after pay- ment of his debts, shall be valued together with, and including all the real estate which he may have, at any time prior to : , con- veyed to any of his said children, rating the same at its present value, and deducting therefrom the value of the improvements which have been made upon such property during its possession by said children, or while in the possession of any other person claim- ing under them ; and upon such valuation the whole shall be divided into eight parts. And to the end that this Court may be enabled to make a just valuation and partition thereof, in the manner above mentioned it is ordered that a commission issue to (5 persons) of authorizing them or any three of them to go upon, walk over, and survey the said real estate and property in the proceedings mentioned, and to value and divide the same in the manner above mentioned, according to the rights and interests of the respective parties ; that is to say the said commissioners or any three of them shall divide the same among the said , who are the children or grandchildren and devisees of the said testator; allotting to each one of them so much and such a proportion of the real estate of which the said testator- died seized, as together with that which the said testator conveyed to them, or any of them the said devi-sees as aforesaid, will be equal in value to one-eighth part of the whole of the said real estate herein directed to be valued, having regard to quantity and quality, and deducting the value of the improvements as above mentioned ; but the said commissioners are not to include in the said valuation and division any real estate of the said testator, for which he may have given bonds of conveyance, or which he has sold or contracted to sell, and for which his executors are authorized to execute all necessary deeds, APPENDIX. 641 to complete such contracts as are mentioned in his said last will and testament ; and that the said commissioners be directed in the commission to make out a plot and certificate of the said real estate and of the divisions thereof, and an accurate description of the same, and of the several parts thereof, and the value of each ; and to the said commission there shall be annexed as usual an oath of office. [Alex Ch. Prae. 327.] [Note. — The commission issued in this case should contain all the special directions which are given in the decree ; for the com- mission is the only warrant to the commissioners.] No. 105. Decree for Partition among Parceners. [After the commencement.] That there be a partition of the real estate whereof F. G., in the proceedings mentioned lately died seized amongst his heirs at law. And to the end that this Court may be enabled to make such par- tition, it is further adjudged, ordered and decreed, that a commis- sion in the usual form issue to (five persons) of County, authorizing them or any four or three of them to enter upon, walk over, and survey the said real estate, and value the same, subject to ail incumbrances, if any thereon, and to divide the same into four equal parts, having regard to quantity and quality if in their opinion the said real estate be susceptible of such division, with advantage to all the parties interested therein ; and to allot one of such division to each of the complainants and to the defendant D. And if, in their opinion, the said real estate be not susceptible of such division, with advantage to all the parties interested therein, then that they proceed to divide the same into such lesser number of parts as they may deem most to the advantage of all parties interested therein, and ascertain the value of each part thereof, "Code, Art. XLVII. sec. 32. p. 334. . 41 642 MAEYLAND OHANCEEY PRACTICE. subject to any incumbrances thereon, having regard as aforesaid to quantity and quality. And if, in their opinion, the said real estate will not admit of division, without loss or injury to the par- ties, then that they make return of their said judgment, and the reasons upon which the same was formed, with the real value of the said estate^ subject to any incumbrance thereon. And that the said commissioners lay off the dower of the defendant E, the widow of the deceased, in the said real estate, before they proceed to divide or value the same. And that the said commissioners make out or cause to be made out a plat and certificate of the said real estate, and of the division thereof, with the beginning and courses, and an accurate description of the said estate, and of the several parts thereof. And to the said commission there shall be annexed the usual oath of oiEce. [Alex. Ch. Prac. 328.] No. 106. Deeree for an account. A. ] vs. > In Circuit Court . B. 1 This cause standing ready for hearing and being submitted, the counsel for the parties were heard, and the proceedings read and considered. It is thereupon this day of in the year by this Court adjudged, ordered and decreed, that the parties account with each other, of, and concerning the matters in the proceedings mentioned : and that this cause be referred to the auditor, with directions to take such account from the plfeadings and proofs now in the cause, and such other proofs (if any) as the parties may pro- duce before him, on giving the usual notice. [Alex. Ch. Prac. 308.] APPENDIX. 643 No. 107. Decree for an Account on a Creditor's Bill vs. an Executrix. [For commencement see preceding form.] That the said D, executrix, as aforesaid, do account with the .complainants and other creditors of her testator A B, who may come in as parties to this suit, of and concerning the personal estate of her said testator, which has come to her hands as execu- trix or otherwise, and of her administration thereof; and that the auditor of this Court take said account from the pleadings and proofs now in the cause, and such other proofs (if any) as the par- ties may produce before him. And the said parties are hereby "allowed to take testimony in relation to the said account, before any Justice of the Peace, on giving three days notice as usual; provided, that such testimony be taken and filed on or before the next . And the said defendant [or complainant if he pleases] is hereby directed by advertisement to be inserted in some paper published in once in each of three successive weeks before the day of to give notice to the creditors of the said testator to file their claims with the vouchers thereof with the clerk of this Court, on or before the day of next. No. 108. Decree for an Account with Special Directions. [For the commencement see form No. 106.] That this cause be, and the same is hereby referred to the auditor with directions to take an account of what is due to the complainant from the defendant for principal and interest on the mortgage in the jjroceedings mentioned ; and also of the rents and profits of the mortgaged premises received by the said complainant. 544 MAKYLAND CHANCERY PEACTICE. or by any other person or persons, by his order, or for his use, or which he without his wilful default, , might have received; and also of all sums of money laid out or expended by the said com- plainant, in necessary repairs on the premises, or in payinent' of taxes assessed thereon ; and that what shall be found to have been so expended, be deducted from what shall be owing on the account of rents and profits ; and if it shall be found that the annual rents and profits exceed the interest due on the said mortgage and the moneys expended as aforesaid, then that the said account be taken with annual rests, and that what shall be owing on account of rents and profits as aforesaid, be applied, first to the payment of the interest accrued on tha. mortgage, and then in sinking the principal ; and that said aecount be taken from the pleadings and proofs now in the cause, and such other proofs (if any) as the par- ties may produce before him on giving the usual notice, &o. &b. No. 109. Order for Reference to the Auditor with special direc- ,-q, tions. [ This cause standing ready for further directions on the objec- tions to the claims of the creditors, and on the exceptions to the ' auditor's report, and being submitted, the counsel for the parties 1 were heard and the proceedings read and considered. 'J Whereupon it is ordered, that this case be, and the same is j hereby referred to the auditor. The claims of the plaintiffs, desig- nated as Nos. 1, 2, 3, 4 arid 5, must be allowed, together with claims . .|. Nos. 6, 7, 8, 9, 11, 15, 19, 20, 25, 29, 30, 81, 32 and 33 ; but the ■claims designated as Nos. 23 and 24, must be considered as barred i in favor of those Whose claims are not hereby rejected, and who have directed a plea of the statute of limitations against theija. ^ The claims marked, Nos. 10. 12, 14, 17, 18, 21 and 22, must be totally rejected, because they have none of them been sustained by legal and sufficient proof ; and the claims, Nos. 26 and 27, must be i wholly rejected, because it has not been shown that those who are APPENDIX. 645 therefore primarily liable are insolvent. In conformity with these directions the auditor will state a final account, making a distribu- tion of the personalty first ; and then of the proceeds of the realty in due proportion, or in full if there be a sufficiency to satisfy all. [Alex. Oh. Prac. 310.] No. 110. Decree for Paymeid of Money where the cause is suh- miited without a reference to the Auditor. [After the commencement J That the said defendant pay, or bring into this Court, to be paid unto the complainant the sum of current money, with interest thereon, from the day of untU. paid or brought in as aforesaid, together with the complainant's costs of this suit, to be taxed by the clerk. No. 111. "Decree against an Executor for a part of the Debt, and for the residue to be paid out of the future assets. This cause standing ready for further directions on the auditor's report and the exceptions thereto, and being submitted, -the pro- ceedings were read and considered. It is thereupon, by this Court adjudged, ordered and decreed. That there is due to the complainants from the defendant, as executor of A B, deceasad, the sum of dollars, current money, with interest thereon from the until paid. And it is further adjudged, ordered and decreed, that the said defendant forthwith pay or bring into this Court to be paid to the said Complainant the sum of dollars (being a just proportion 646 MAEYLAND CHANCERY PEACTICE. of the assets of his said testator, which have come to the hands of the said defendant as executor to be administered) with interest thereon from the until paid or brought in as aforesaid, together with their costs of this suit tq be taxed bjr the clerk. And it is further adjudged, ordered and decreed, that the said defendant pay to the said pomplainants the sum of dollars with interest as aforesaid, (being the residue of the aforesaid debtj) out of any assets of his said testator which may hereafter come into his hands to be administered, and which may be subject thereto in a due course of administration. [Note. — Every decree against an executor for the payment of money in his hands, is a personal decree ; the Court acting against the person of the executor, and not directly on the assets in his hands. The report or other evidence, shows, the sum in his hands, applicable to the payment of the complainant's demand ; the decree directs, the payment of that sum to the person entitled ; a failure to comply with the decree, is a contempt committed by the defen- dant; and process to punish that contempt may go against the property of the defendp^nt. It is usual in cases of orieditors' suits, when assets in the hands of an executor are distributed amongst creditors, to pass a simple order of ratification on the auditor's report instead of a formal decree. Alex. Ch. Prac, p. 313.] No. 112. Decree 0% a Creditor s Bill vs. Executor, where the Estate is sufficient. [A,fter the commenoeinent.J It is further adjudged, ordered, and decreed, that the said defen- dant forthwith pay or bring into this Court to be paid unto the complainant A. the sum of with interest thereon from the until paid or brought in as aforesaid and unto B., the sum of APPENDIX. 647 with interest as aforesaid, &c. &o., and the said defendant pay the costs of this suit as allowed in the aforesaid account of the auditor to the persons who are hj said account made entitled thereto. No. 113. Decree on Oreditor's Bill vs. Executor, where the AsStts in hand are insufficient. £ After the commencement.] And it is further adjudged, ordered, and decreed, that there is due from the defendant as executor of A. B deceased unto the complainant 0, the sum of , with interest thereon from the until paid, and unto, &c.. &c., &c. And it is further adjudged, ordered, and decreed, that the said defendant forthwith pay or hring into this Court to be paid unto the said complainant C, the sum of , with interest thereon from until paid or brought in as aforesaid, and unto the said , the sum of &c., &c., &c. The sums, as afore- said decreed to be paid, being their respective proportions of the assets of the said A. B., deceased, which have come to the hands of the said defendant, as executor, to be administrated. And it is further adjudged, ordered, and decreed, that out of any assets of his said testator, which may hereafter come into the hands of the said defendant, as executor, and which may be subject to the payment of the claims of the aforesaid creditors, in a due course of administration, the said defendant pay unto the said complainant the sum of , &c., &c., &c. And it is further adjudged, ordered, and decreed, that the said defendant pay the costs of this suit, as allowed by the aforesaid account of the auditor, to the persons, who are by said account, made entitled to receive the same. [Alex. Gh. Prac. 314.] 648 MAKYLAND CHANCERY PEACTICE, No. 114. Mnal Decree for Partition amongst Parceners. [The parceners teing six in number, and the estate being divided into two parts, -which were taken by the two eldest sons at the valu- ation of the commissioners. — Alex. Ch. Prac. p. 332.] In Oiectjit Court. A. S., R. S. D. B., & M. his wife, J. W. & E., his wife, & J. H. S., vs. J. N. S., & F. H. S. The commissioners named in the Interlocutory Decree, passed in this cause for partition of the real estate of J. S., deceased, having made a return of their proceedings under the said decree ; and A. S , the eldest son of the said J. S., deceased, having elected to take that part of the said real estate which is designated on the plat returned by the said commissioners as lot No. 1, at the valu- tion of the said commissioners ; and E. S., the second son of the . said J. S. deceased, having elected to take that part of the said real estate, which is designated on the said plat as No. 2, at the valuation of the conimissioners, ' It is therefore this day of , by the authority of this Court, adjudged, ordered, and decreed, that the said return of the commissioners be, and the same is hereby ratified and con- firmed.* And it is further adjudged, ordered and decreed, that the said .\. S., shall hold in severalty, and not jointly, or in common with the other parties to this suit, all that part of said real estate, which is designated in the return of the said commissioners and the plat accompanying the same as lot No. 1, and which is included within the following metes and bounds, courses and distances, to wit : And it is further adjudged, ordered, and decreed, that the said R. S., shall hold in severalty and not jointly, or in common with the other parti-es to this suit, all that part of said real estate which is designated in the return of the said commissioners, and the plat 'Code, Art. XLVII sec. 42, p. 336. APPENDIX. 649 accompanying the same as lot No. 2. and which, is included within the following metes and bounds, courses and distances, to wit : And it is further adjudged, ordered, and decreed, that the audi- tor's report and accounts filed in this cause be, and the same are hereby ratified and confirmed ; and that the said A. S., pay to the said J. W., and E., his wife, for their share of the valuation of the estate so as aforesaid, decreed, to be held by the said A. S., the sum of and to the said D. B. and M., and his wife, for their share of the said valuation, the sum of and to the said J. H. S., for his share of said valuation, the sum of — : Or the said A. S. may, and he is hereby authorised, to give his bonds with a surety or sureties, to be approved by the Court, to the said J. W., and E., his wife, D. B., and M., his wife, and J. H. S., with condition for the payment of the sums of money, so as aforesaid, decreed to be paid unto them respectively, with interest thereon, in one, two and three years from the' date of this decree. And it is further adjudged, ordered and decreed, that the said K. S pay to the said— [As in the last preceding paragraph.] And it is further adjudged, ordered, and decreed, that the said A. S. give bond to the State of Maryland, with security as afore- said, and with condition to pay to the said J. N. S. the sum of annually during his life ; the same being the interest on the sum of and allowed to the said J. N. S., in lieu of his curtesy in the estate, so as aforesaid allotted to the said A. S.; and to pay to the said F. H. S., the said principal sum of immediately upon the death of the said J. N. S., unless he shall be sooner required to pay the same by an order of this Court; and that the said R S., also give bond to the State of Maryland, &c., &c. And it is further adjudged, ordered, and decreed, that the said A. S., & R. S. pay the costs of this suit, amounting as allowed by the auditor to the sum of . 650 MAKYLAND CHANCERY PRACTICE. No. 115. Interlocutory Decree for Assignment of Dower. [After the commencement.] That the complainant is entitled to dower, in all the lands and tenements in the proceedings mentioned, which are now held by the defendants. And to the end that this Court may be enabled to make a just assignment to the said complainant, of her dower in the aforesaid lands and tenements, it is ordered that a commission issue to A., B , C, and D., of county, authorising them, or any three of them to go upon, walk over, survey, lay off, and desigijate one-third part of the said premises, as and for the dower of the said complainant in the same. And that the said commissioners be directed in the commission to make out a plat and certificate, exhi- biting an accurate description of the third part or dower so by them laid out. And the said commissioners shall make return of their proceedings to this Court as soon as may be, subject to its further order upon the same. And to the said commission there shall be annexed the usual oath of office. And it is further adjudged, ordered, and decreed, that the com- plainant is entitled to have and recover the full amount of the rents and profits of so much of the beforementioned lands and tenements, as should have been assigned to her as her dower therein, from the death of her late husband, until the said dower shall be laid out, assigned and delivered unto her ; therefore, to enable the Court cor- rectly to ascertain and specify the whole amount of the rents and profits to which the said complainant is so entitled, it is ordered that this case be, and the same is hereby referred to the auditor, with directions to state an account thereof, from the proceedings, and proofs now in the case, and such other proofs as may be laid before him. And the parties are hereby authorised to take testi- mony in relation to the said account of the rents and profits, before any justice of the peace, on giving three days notice as usual : Pro- vided, that the said testimony be returned and filed thirty days after the said commissioners appointed to lay out the said dower, shall have made and filed their return. APPENDIX. 631 No. 116. Qomtnission to lay off Dower. Maryland, So. The State of Makyland, To , Qreeting : Know ye, that we have pursuant to an order of the Circuit Court of Baltimore County, this day passed in a cause in said Court, depending between , complainant, and , defendant, fully authorised and empowered you, or any three of you to enter upon, walk over, survey, locate, and lay off one-third part of the real estate, in the proceedings in said cause mentioned, consisting of the following tracts, parts of tracts, pieces or parcels of land, to wit : [Here describe lands, &c.J containing in the whole about acres, and being in county, as and for the dower of the said complainant -^ in the said lands and real estate ; and that you make out or cause to be made out a plat and certificate of the said lands and an accurate description of the one-third part or dower so laid out ; gind when you shall have so done, you, or a majority who shall act, are to certify and return unto our said Circuit Court, without delay, your acts and proceedings in the premises, by your certificate distinctly and plainly written, closed up and under your seals, or the seals of such majority of you, as shall act in the premises; provided that before you, or any of you, shall act in the premises, you, or such of you as are to act, shall each take the oath hereunto annexed, and we do give any one or more of you full power and authority, jointly and severally, to administer such oath upon, the Holy Evangelists, Witness the Honorable > this day of — ~ 18r-. [Alex. Ch. Prao. 334 ] No. 117. Commissioner's Oath. You shall, according to the best of your skill and judgment, lay ofi the dower as directed by the aforegoing commission, and in 652 MARYLAND CHANCERY PRACTICE. all things truly and- faittfully execute tte powers given, and per- form the duties required of you, by the said comtaission, without favor or partiality to, or prejudice, or ill-will against any person interested therein. [Alex. Ch. Prac. 335.J No. 118. Final Decree in Dower. A. ] vs. \ In Circuit Oouht, Baltimore County. B. &C. j This cause standing ready for hearing upon the return of the commissioners, and the auditor's report made in execution of the former decree passed in this cause, and being submitted without argument, the proceedings were read and considered. It is thereupon this by ■ , and by the authority of this Court, adjudged, ordered and decreed, that the return of the commissioners filed in this cause be, and the same is hereby ratified and confirmed ;* and that the complainant shall have and hold in severalty, for, and during the term of her natural life, and as and for her dower in the real estate in the proceedings mentioned, all that part of the said real estate which is described in the aforesaid return of the commissioners, as beginning,- &c. &o. And it is further adjudged, ordered, and decreed, that the audi- tor's report filed in this cause be, and the same is hereby ratified and confirmed ; and that the defendant B pay; or bring into this Court to be paid, to the complainant, for her arrears of dower in said real estate, the sum of with interest on part thereof from the until paid or brought in as aforesaid, together with her costs incurred in this suit, to be taxed by the clerk. "Code, Art. XL VII. sec. 62. Alex. Ch. Prao. 335. APPENDIX. 653 No. 119. Decree taking Bill pro confesso against a Non-Red- dent or Defaulting Defendant. 0. I vs. y In Circuit Court, Baltimore County. D. j The order of publication, heretofore passed in this cause, having been duly published, [or the order /u-o confesso, heretofore passed in this cause, having been duly served on the defendant ; or the attach- ment with proclamations, heretofore issued in the cause, having been duly returned non est and proclamated,] and the said defendant having failed to appear and answer [or to answer] the biU of com- plainant. \ It is thereupon this day of , by the authority of this Court, adjudged, ordered, and decreed, that the said bill of com- plainant be, and the same is hereby taken pro confesso, against the said defendant. [Alex. Ch. Prac. 334.] No. 120. Decree Dismissing the Dill. [After the commencement.] That the Bill of Complaint of the complainant be and the same is hereby dismissed, and that the complainant pay the defendant his costs of this suit, to be taxed by the clerk. [Note. — ^Where the bill is intended to be dismissed without pre- judice, there should be inserted the following clause after the word "dismissed."] But without prejudice to any other suit which the complainant may hereafter bring in relation to any of the matters of equity in controversy in this suit. [Alex. Ch. Prac. 338.] 6 54 MARYLAND CHANCERY PRACTICE. No. 121. Petition of Trustee vs. a Delinquent Purchaser. a vs. D. In To THE Honorable . The petition of A. B., trustee, appointed by tie decree in this cause to sell the reatl estate in the proceedings mentioned, humbly shows, that in execution of the authority vested in him by said decree, he did on the day of sell unto a certain E, of County, a parcel of said estate, consisting of — — , and more particularly described in his report of said sale, at and for the sum of dollars, which was to be paid on the day of sale or on the ratification thereof by this Court ; and that said sale has been duly reported to and ratified by this Court, as by the said report and the proceedings thereon, now remaining in this Court, will appear. And your petitioner further charges that the said E has paid no part of the aforesaid purchase money, although he has had notice of the ratification of said sale, so made to him as aforesaid, and has been required by your petitioner to pay the same. Your petitioner therefore prays that the said E may be compelled by decree or order of this Court, to pay the aforesaid purchase money, with interest thereon, and in default thereof, that the afore- said parcel of real estate may be decreed to be sold for the purpose of raising the same, or such other or further relief granted unto your petitioner as his case may require. And as, &c. No. 122. Conditional Order on the Petition^ In . On the aforegoing petition it is ordered by the Court this day of , that the said E bring into this Court the said sum of dollars, with interest thereon, from , or show good cause APPENDIX. (^55 to the contrary on or before the next, provided a copy of this order, together with a copy of the foregoing petition, be served on the said E on or before the instant. Xo. 123. Final Order on the Petition. In . A copy of the within petition and order having been duly served on the said E., and he having failed to bring the sum of money therein mentioned into Court, or to show cause to the contrary, it is thereupon ordered by the Court this day of that the said E forthwith bring into this Court the aforesaid sum of dollars, with interest thereon, from the until brought, together with the costs of this proceeding. Ko. 1J4. Final Order directing a Sale with Special Directions. In . A copy of the order of the , passed on the petition of the trustee, having been duly servecl on the said E., therein named, and the said E having failed to bring into Court the sum of money, with interest, therein mentioned, or to show cause to the contrary, it is thereupon, on motion of the said trustee, ordered that the real estate in the said petition mentioned be sold for the payment of the purchase money thereof, with interest as aforesaid, and the costs of this proceeding, by the said trustee, in the manner directed by the original decree, for cash, to be paid on the day of sale ; and that said sale be at the risk of the aforesaid E. And if the highest bidder at said sale shall fail then and there immediately to pay the purchase money, the trustee may reject such bid, and accept the next highest bid upon the same terms ; and if the next highest 656 MARYLAND CHANCERY PRACTICE. bidder shall also then and there fail to pay the purchase money, the trustee may reject his bid also, and postpone the sale to some other day. [Alex. Ch. Prac. 321.] No. 125. Condition of an Appeal Bond. Now the condition of the above obligation is such, that if the above bound shall not cause a transcript of the record and proceedings of the said decree, to be transmitted to the Court of Appeals within the time required by law, and prosecute the said appeal with effect, and also satisfy and pay to the said — — , his executors, administrators or assigns, in case the said decree shall be affirmed, as well the debt, damages, and costs, and the costs adjudged in the Court, as also all damages and costs that may be awarded by the Court of Appeals, then the said bond to be and remain in full force and virtue, otherwise to be of no effect. [Code, Art. v., sec. 31.J [Note.— In some cases a slight modification of the above will have to be made.] No. 126. Condition of Bond to he given by the Heir, who elects to take the Estate of an Intestate, at the valuation thereof, to the other Representatives* [A separate bond may be executed in the name of each repre- sentative ; or the Court may, in their discretion, permit one bond to be given to the State of Maryland, for the common benefit of all the representatives, as in the following form.] Whereas, by a decree of the , passed in a cause therein, between A. and others, complainants, and B. and C, defendants, "Code, Art. XLVII. sec. 61, p. 338. APPENDIX. 657 the election of the said A. to take the real estate of B., deceased, in the proceedings in said cause mentioned, has been accepted and confirmed, and the said A. is empowered to give bond to the State of Maryland for securing to the several representatives of the said deceased their respective proportions of the valuation of said estate as ascertained by said decree. . Now the condition of this obligation is such, that if the said A., his heirs, executors or administrators, shall well and truly pay unto the said C, his executors, administrators or assigns, the principal sum of , on or before the day of , with interest on the said principal sum, from the , (being the day of election,) to be paid annually thereafter until payment of the aforesaid principal sum of money ; and shall also pay unto the said D., &c., then this obligation to be void, else to remain in full force and virtue in law. [Alex. Ch. Prac. p. 343.] No. 127. Condition of Ne Exeat Bond to he given to the Sheriff. Whereas, U. S. and H S. have filed their bill of complaint in the against the said J. C, and have obtained a writ of ne exeat to prevent him from leaving the State of Maryland. Now the condition of this obligation is such, that if the said J. C. does not go, or attempt to go, out of the State of Maryland without leave of the Court of , then this obligation to be void, else to remain in full force and virtue in law. No. 128. Petition for Habere Mtdas under Code, Article LXXV. Section 64.— 1864, ct. 283. To THE Hon Judge of the Ciecuit Court of . The petition of respectfully states to your Honor that on the day of he became the purchaser of the premises men- 42 658 MARYLAND CHANCERY PRACTICE. tioned in the pleadings in the cause of vs. , which was sold under a decree of this Honorable Court, by -. , trnstee, that said sale was duly reported to and finally ratified and confirmed by your Honorable Court; that subsequently, to wit: after having paid to said trustee the entire amount of purchase money, to wit : the sum of dollars, that being the consideration or price at which the premises were struck off, the said executed and delivered a deed to him for the said property on the . Your petitioner further shows that , the defendant in the . above cause, is in possession of said property, and refuses to give it up, although possession has been demanded on several occasions. Your petitioner therefore prays that an order may emanate from your Honorable Court, directed to said defendant, requiring him to give to your petitioner possession of the mortgaged premises men- tioned and described in the pleadings and decree in this cause. And as in duty bound your petitioner will ever pray, &c.* [With affidavit annexed.] No. 129. Order passed on foregoing Petition. In the Cieguit Court op . Ordered this day of , by the Circuit Court of City, that , the within named defendant in this cause, on being served with a certified copy of this order, forthwith deliver up to the said , the mortgaged premises mentioned and described in the pleadings and decree in this cause, and in the deed executed by , trustee, to the said , in pursuance of the said decree. [The Code requires that the order shall be " unless good cause to the opntrary be shown." After this goes the peremptory order.] 'Kaatz vt. Gudderlet, Circuit Court ofBdltimore City, 1867, fol. 226. APPENDIX. 659 No. 130. Form of the writ Habere Facias Possessionem. The State of Maryland, To , Sheriff of Baltimcyre (My, Qreeting : Whereas by a decree of the Court of City, passed in the cause of against , at the term, a house and lot of ground, [here describe property,] was directed to be sold ; and whereas, , the trustee appointed by the said decree, did make sale of the same to a ceri^in , which sale hasbeen ratified by the Court aforesaid, and the said has obtained a deed from the trustee for the property above mentioned ; and whereas, by a subsequent decree or order made and passed in the said cause, it was adjudged and ordered that the said , who held posses- sion of the said house and lot of ground, should deliver possession of the same to the said , and that the writ of habere facias pos- sessionem issue against the said , to require him to deliver pos- session of the same ; and whereas, it is represented to the Court aforesaid that the service of the petition and copy of the order of the Court was made at the residence of the said , by being left in the hands of , with which order of Court the said has absolutely refused to comply; and the said having applied to us in our Court here for additional process to enforce said decree : Know ye, therefore, that to complete and carry into full effect the decrees aforesaid, we have given, and from this time do give to you full power and authority to the house and lot of ground and premises aforesaid, situate in the city of aforesaid, and in the decrees and order aforesaid mentioned and expressed, to approach and enter, and from thence the said , as well all and every other person or persons in possession of the said house and lot of ground and premises, being against the form and effect of the said decrees and order aforesaid, you remove, and the said in full, quiet and peaceable possession of all and singular the premises aforesaid immediately, and from time to time, as often as necessary, you put and place, and the said being put and placed in pos- session, you protect and keep quiet. And we therefore command you that immediately after the receipt of this writ to the lot of ground and premises aforesaid, you approach and enter, and the 660 MAEYLAND OHANCEEY PEACTICE. said , as well as all and every other person or persons in pos- sesion of the premises, being against the form and effect of the decrees and order aforesaid, from the possession thereof you remove, and to the said the full, peaceable and quiet possession »f all and singular the premises you deliver, put and place, and so from time to time, as often as necessary ; and the said being so put in possession, you preserve, keep and continue, and cause to be preserved, kept and continued, according to the true intent of the decrees aforesaid, our order aforesaid, and of this writ. Witness the Honorable , Chief Judge of the of city, the day of . Issued the day of , in the year . No. 131. Writ of Ne JExectt. To THE Sheriff of . Whereas, it is represented to us in our Court , on the part of A. B., complainant, against C. D., defendant, amongst other things, that the defendant is greatly indebted to the said complain- ant, and designs quickly to go out of the State of Maryland, (as by oath made on that behalf appears, which tends to the great prejudice and damage of the said complainant. Therefore, in order to pre- vent this injustice, we do hereby command you, that you do, with- out delay, cause the said C. D. personally to come before you and give sufficient bail or security in the sum of , that the said C. D. will not go, or attempt to go, out of this 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 C. D., to the next prison, there to be kept in safe custody until he shall do it of his own a,ceord ; and when you shall have taken such secu- rity, you are forthwith to make and return a certificate thereof to us in our said Court, distinctly, and placing under your seal, together with this writ. Witness, &c. [Hindes*' Chancery, p. 613.] LIST OF FORMS. -<•► No. Pask. 1. Order to enter Appearance 553 2. Equity Buhpeema 553 3. Attachment in Equity 554 4. Eule for hearing 554 5. Order for Injunction and Receiver 555 6. Order for hearing motion to dissolve Injunction 556 7. Injunction Bond , 556 8. Eeceivers' Bond. 557 9 Trustees' Bond under Decree in Equity 558 10. Commission to assign Guardian under Art. XVI. sec. 89.... 559 11. Answer of Guardian and Return of Commission 560 12. Trustees' Report 561 12. Affidavit— Order nisi; final order 561 13. Attachment against Trustee for not reporting 562 14 Writ de I/unatico Inquirendo 563 15. Return, &c. to same 564 16. Commission to take Testimony 565 16. Commissioner's Oath 565 16. Clerk's Oath — Commissioner's Return 566 17. Bill for Divorce 566 18. Answer to the foregoing bill ..567 19. Petition for Alimony, pendente lite 567 20. Order thereon 568 »21. General Replication in above ease 568 22. -Order for Commission 568 28. Submission for Decree ....569 24. Decree in above case 569 25 Order of Publication 570 26. Certificate of Publication o70 27. Interlocutory Decree ■■ 571 662 MARYLAND CHANCERY PRACTICE. No, Paqb. 28, Petition ex •parte for sale of Mortgaged Premises ...571 29 Mortgage Decree ex parte 572 30. Bill to Foreclose a Mortga,ge 574 31 Answer to same 575 32 "General Replication to Answer 575 33 Disclaimer 576 34 Exceptions to Answer 576 85. Order for hearing Exceptions 577 36 Order overruling Exceptions 577 37. Order sustaining Exceptions 577 38. Rule further proceedings .' 578 39. Security for costs 578 40 Order of Court thereon 578 41r Decree dismissing Bill 579 42. Amended and Supplemental Bill 579 43. Bill for Redemption of Mortgaged Premises by Heirs at Law of Mortgagor and Mortgagee in possession 580 44 Bill by Creditor and Administrator and Heirs at Law of a deceased Debtor for an account of Personal and sale of Real Estate 582 45 Bill of Revivor ...584 46 Petition in nature of Revivor 585 47. Suggestion in nature of Revivor 586 48. Order raw, thereon 587 49. Final Order thereon 587 50. Order made on suggestion of the opposing party for Reyivor.587 51 Final Order thereon 588 52 Order of. Revival 588 53. Bill for Injunction and Receiver, &c 588 53. Affidavit thereon.. 591 54 Order on foregoing Bill 591 55. Bill for Specific Performance 592 56. Bill for a sale under Mechanics' Lien Law 594 57. Bill to set aside Bill of Sale charging fraud and praying for Injunction 594 58. Bill charging fraud, praying for Injunction and Receiver... 596 59. Bill for Dissolution of Co-partnership, Receiver and Injunc- tion 597 60. Order dissolving an Injunction 599 61. Order continuing Injunction 600 LIST OF FORMS. 663 No. Page. 62. Order continuing the Injunction in part and dissolving it in part 600 63. Bill averring fraud, and praying ttat a Deed may be an- nulled 601 64 Bill for the enforcement of a Mechanics' Lien 603 65 Bill to set aside a Contract by reason of Mistake, charging fraud 603 66 Cross-Bill — enforcement of Contract, and sale of Pledged Securities 607 67 Bill for sale against Unknown Heirs 610 68. Bill for Specific Perfwrmance 611 69 Bill for same 612 70. Bill for Injunction — and account by a part owner of a vessel.. 614 71. Bill for Partition 616 72. Bill of Interpleader 617 73 Answer to same 618 74 Decree in the above case 618 75. Bill for Injunction to stay Proceedings at Law 619 76 'Bill by Feme Covert Trader to stay Proceedings at Law... .621 ■77. Petition asking that Execution of Decree be suspended for sale of Mortgaged property 622 78 Order passed on foregoing Petition 623 79 Bill by Guardian ot pro-ami for sale of Infants' Estate 623 80 Petition by Mortgagee vs. Mortgagor, for an Injunction and Eeceiver, alleging waste, &c 624 81. Common Order for hearing a Petition 625 82. Order for hearing and taking Depositions 625 83. Order for hearing Exceptions and taking Depositions in relation to claims filed under a Creditor's Bill 626 84. Petition for an Order to take Depositions to be used at the hearing of a Motion to Dissolve Injunction ..626 85. Order on the foregoing Petition 627 86. Order removing a Receiver and appointing another in his stead 628 87. Order directing a sale of Perishable Property in the hands of a Eeceiver 628 88. Exceptions to Evidence under Code, Art. V. Sec. 26 628 89. Plea — in Abatement— Infancy of Complainant 629 90. Plea — Coverture of Complainant .., 629 664 MARYLAND CHANCERY PRACTICE. Ko. Via*. 91. Plea — ^that the Defendant is not Administrator 630 92 Plea — that Complainant never administered as alleged 630 93 Plea — of a former recovery 631 94. Plea— of a former suit depending 631 95 Plea— of a Release with averments negativing fraud, &c., and with an Answer to support thePle^. 632.- 95 Plea — of Purchaser for Valuable Consideration, omitted for the reason stated 633 96 Plea — of Limitations 633 97. Plea — of the Statute of Frauds, as to a parol agree- ment, &c 634 98. Demurrer 635 99 Decree for Payment by Purchase Money and a Conveyance, and in default of Payment then a Sale 636 100. Decree vacating a Conveyance as fraudulent in favor of a purchaser at Sheriff's sale 636 101 Decree annulling a Conveyance as fraudulent in favor of Creditors, and directing a sale 637 102 Decree for Partition between Joint Tenants or Tenants in Common : 637 103. .Final Decree for Partition 639 104 Interlocutory Decree for Partition among Devisees with special directions 640 105. Decree for Partition among Parceners ..641 106. Decree for an Account 642 107. Decree for an Account on a Creditor's Bill vs. an Execu- trix 643 108. Decree for an Account with Special Directions 643 10^ . Order for Reference 1;o the Auditor with Special Directions..644 110 Decree for Payment of Money where the cause is submitted without a reference to the Auditor 645 111 Decree against an Executor for a part of the Debt, and for the residue to be paid out of the future Assets 645 112 Decree on a Creditor's Bill vs. Executor, wiere the Estate is sufficient 646 113 Decree on Creditor's Bill vs. Executor, where the Assets in hand are insufficient 647 1 14 Final Decree for Partition amongst Parceners 648 115. Interlocutory Decree for Assignment of Dower 650 116. Commission to lay off Dower 651 LIST OF FOEMS. . 665 No. PiOB. 117. Commissioner's Oath 651 118 Final Decree in Dower 652 119. Decree taking Bill jwo confesso against a Non-Eesident or defaulting Defendant 653 120. Decree Dismissing tte Bill 653 121. Petition of Trustees «s. a Delinquent Purchaser 654 122 Conditional Order on the Petition 654 123. Final Order on the Petition ; 655 124 Final Order directing a Sale with Special Directions 655 125. Condition of an Appeal Bond 656 126. Condition of Bond ta be given by the Heir, who elects to take the Estate of an Intestate, at the valuation thereof, to the other Eepresentatives 656 127. Condition of ne exeat Bond to be given to the Sheriff. 657 128. Petition for Habere Facias under Code, Article LXXV. Section 64 657 129. Order passed on foregoing Petition 658 130. Form of the Writ Habere Facias Possessionem 659 131. Writof iVe Exeai .* 660 THE JUDICIARY OF MARYLAND. THE COURT OF APPEALS. Consists of one Judge, specially elected from the Eighth Judicial Circuit, (Baltimore City,) and the Chief Judges of the seven remaining Judicial Circuits. Chief Judge Hon. James L. Babxol, of Baltimore City. First Circuit Hon. James A. Stewaet, of Dorchester County. Second Circuit... Kon. J. M. Eobinson, of Queen Anne County. Third Circuit Hon Richaed Geason, of Baltimore County. Fourth Circuit... B-on. Rioh'd H. AlvSy, of Washington County. Fifth Circuit Hon. Oliver Millee, of Anne Arundel County. Sixth Circuit Hon. Madison Nelson, of Frederick County. Seventh Circuit... ^on. Geo. Beent, of Prince George County. - Clerk James S. Feanklin, Esq., of Annapolis. Terms of Court.. .Yirat Monday in April and October. THE OIROUIT COURTS. FIRST JUDICIAL OIEOUIT. Hon. J. A. Stewaet, Chief Judge; Hon. J. R. Franklin and Hon. L. T. H. Ieving, Associates. Teems of Couet : Worcester Chunty— Snow Hill, 3d Monday in January, May, July and October. , t' Somerset County — Princess Anne, 2d Monday in January and July, and 1st Monday in April and October. Dorchester County— Gsimhridge; 4th Monday in January, July a;nd April, and 2d Monday in November. Wicomico Cbmi!y— Salisbury, 1st Tuesday of January and July, and last Tuesday of March and September. JUDICIARY OF MARYLAND. 667 SECOND JUDICIAL CIECTJIT. Hon. J. A. Robinson, Chief Judge; Hens. J. A. Wickes and Feedeeick Stump, Associates. Teems of Couet : Caroline County — Denton, 2d Monday in January, March and July, and 1st Monday in October. Talbot County — East on, 3d Monday in May and November. Queen Anne Covrnty — Centreville, 1st Monday in May and No- vember. Kent CoMwiy— Chestertown, 3d Monday in April and October. Cecil Cofwrdy- Elkton, 3d Monday in March, 3d Monday in June, Bd Monday in September and 3d Monday in December. THIRD JUDICIAL CIRCUIT. Hon. RicHAED Geason, Chief Judge; Hons G. Yellott and A. W. Bateman, Associates. Teems of Couet : Baltimme County — Towsontown, 1st Monday in March, 3d Mon- day in May, 4th Monday in August and 1st Monday in December. Harford County — Bel-Air, 2d Monday in February, May and November. FOURTH JUDICIAL CIRCUIT. Hon. RiCHAED H. Alvey, Chief Judge ; Hons. Wm. Mottee and Thomas Peeey, Associates. Teems of Couet : Allegany Cbwwiy— Cumberland, Ist Monday in January, 2d Mon- day in April and Ist Monday in October. Washington County— Ra.gersto^n, 1st Monday in March, 4th Monday in July and 2d Monday in November. 668 MARYLAND CHANCERY PRACTICE. FIFTH JUDICIAL CIRCUIT. Hon. Oliver Millee, Chief Judge ; Hons. Edward Hammond and Wm. N. Hayden, Associates. Teems of Court : Anne Arundel Cfaww^y— Annapolis, 3d Monday in April, 3d Monday in July, 8d Monday in October and 3d Monday in January. April and October terms being jury terms. Carroll County — Westminster, 2d Monday in May and Novem- ber. Soward Gofwniy — Ellicott City, 3d Monday in March and Ist Monday in September. SIXTH JUDICIAL CIRCUIT. Hon. Madison Nelson, Chief Judge; Hons. Wm. Viers Bouic and John A Lynch, Associates. Teems of Court : Frederick County — Frederick, 1st Monday in January and July, 2d Monday in February and 3d Monday in October. Montgomery County — Rockville, 1st Monday in February and 2d Monday in August. SEVENTH JUDICIAL CIRCUIT. Hon. George Beent, Chief Judge ; Hons. Robert Ford and Daniel R. Ma©ruder, Associates. Teems of Court : Prince George's Oourvly — Upper Marlborough, Ist Monday in April and November. Charles County — Port Tobacco, 1st Monday in May and 4th Mon- day in October. Calvert Cbwn 345 INDEX. 675 APPEALS AND WRITS OF ERROR— Oontinued. p^se. bond required to stay execution 345 after bond filed no step allowed to prejudice of appellant 345 wbere party intends to dispute the previous orders — bow to act 345 bond to suspend operation of previous orders 345 only one appeal to be taken, and that is from final decree 345 refusal to grant injunction 346 immediate appeal allowed 346 waiver of this right 346 no objection to competency of witness or evidence allowed, or to sufficiency of averments of the bill, or to any account stated, unless exceptions filed 346, 347 objection to jurisdiction 347 clerk to send record, within nine months after appeal taken. ..348 no appeal to be dismissed because of neglect of clerk 348 no execution to be stayed without bond 348, 349 the clerk or Judge to approve bond 348 affidavit that appeal is not taken for delay 348, 349 original paper, map or plat to be provided 349 Courts may approve appeal bonds in vacation ■>50 where bond rejected, further time given to file another 350 bond not to be avoided for matter of form 350 supersedeas decree liable to appeal 850 where appellant dies, bond liable for the due prosecution of.. .351 summons and severance 351 practice annulled 351 sales valid, although decree reversed 352 all cases heard at first term 352 rules of Court to be set out in the record 353 practice in regard to costs 353 writs of error in criminal cases 353 must be taken within three years 353 except " coram vobis," or where judgments entered by mis- take ....353 Court of Appealato give judgment on every exception, where there is to he procedendo 354 continuances to be entered 354 amendments allowed in writs of error 354 what a writ of error is, and -sjfhen it lies 355 676 MAEYLAND CHANCERY PRACTICE. APPEALS AND WRITS OF ERROR -Gontinued. pasi.. writ of error coram vobis 356 what the Court will review 356 remanding the cause 356 when a cause will be remanded 356, 877, 858, 359 proceedings under the order and the law of' the case 359 error coram vobis 360 how writs of error obtained 860 service and returfi 361 writ of error — bonds 861 "prosecute with effect" — 'meaning of 862 writ of diminution 362 rehearing in Court of Appeals 364 APPLICATION OF THE PURCHASE MONEY— where a J)urcha8er is bound to see to 403 APPORTIONMENT 581 ATTACHMENT— where party has been summoned and fails to appear — or answer 33 party taken by, how dealt with by sheriff. 85 not to issue against a van compos 35 mode of enforcing decree 31, 198 ATTORNEY— must be admitted to practice 9 free white male citizen 9 qualifications 9 party may sue or defend without 9 an officer of the Court — may be suspended or stricken from the roll , 10 admission to Court of Appeals — entitles to practice through- out the State 10 mode of proceeding against — for the purpose of suspension... 10 the title "Solicitor" 11 who forbidden to practice.'. 11 attorney's oath ,.., 11 appearance fee 11 INDEX. 677 jATTOENEY— CojiitJMMerf. P^as. , negroes admitted to practice in Supreme Court U. S., and in >( the Federal Courts 12 t from other States— the rule 12 can make agreements to bind his clients — what he may do.... 12 professional communication privileged 13 binds his client by his act 14 extent of his authority..., 14 lien of, for his fees 15 what he does, must enure to the benefit of his client — conduct scrutinized ., 15 bills signed by, usually 24 may not disclose his client's communications 67 AUDITOR— is the accountant of the Court — his duties 324 appointed by the Court — his fees 324, 325 special auditor may be appointed 325 how appointment made 325 his accounts submitted — subject to exception 326 has authority to administer oath to witness ...326 has no power over contumacious witness 326 where' he states account as directed by the Court — generally not open for discussion unless by exception and appeal.. .326, 328 exceptions to be special 327 where testimony tak^n, notice required to be given 327 after decree for account, any party may require him to proceed.328 appoints a day and gives notice for the taking of testimony in disputed case 328 when full legal proof of claims required 329 when final account opened 329 creditors may come in at any time before final distribution of the fund... 329 on what principle he states accounts 330 when instructed by parties 330 his dealings with witnesses who evade the questions pro- pounded 331 when exceptions are necessary 331, 332 his duty in statirig accounts 832 a party may be a witness without an order of the Court 332 678 MARYLAND CHANCERY PRACTICE. AUDITOR - Cominued. pao,. has tte eX'Officio authority to examine a witness 332 bound to regard the pleadings, as well as the evidence... 332 under bill to account— disbursements to be proved 332 Court may reject the account, although made in accordance with its own order 833 claims filed in another cause but referred to, are considered.. .333 when new proof may be offered 333 claim of rent^how treated 333 plea of limitations '. 334 may be filed after the account 334 it enures solely to the pleader 334 claim of complainant in a creditor's bill, established by the decree 334 proof of claims 334 what deemed sufficient ; 335, 336 ajoint and several obligation 336 where surety is insolvent 336 how insolvency established , 336, 837 cases referred to ascertain amount due on mortgage in ad- vance of, and to prevent a sale 337, 838, 426 special commissioners to audit accounts at a distance...., 338 AUTHENTICATION OF RECORDS 235 AWARD - plea of — to bill for an account ,,...122 where fraud is charged 122 good plea to a discovery 122 BAILIFjFS— messengers of the Court 2 THE BILL— what it should contain, , 47 every material fact should b§ stated, 48 defect appearing on face, advanta,ge taken at aay stage of the cause 48 epqcific iaterrogatoriei., 49 INDEX. 679 THE ^ILL— Continued. paos. character of, determined by allegations and relief sought 49 prayer for general relief 49 exception in case of specific performance 49 party only liable in tie character in which he is sued 49 not necessary generally to be sworn to 49 exceptions to this rule 49 affidavit when not made, if necessary, cause for demurrer... 49 objection may be waived 49 exhibits should be filed 49 rule of Court on this subject 49 copy of, made by the clerk 49 necessary parties — see ParHes. interpleader 50 to perpetuate testimony, and de bene esse 52 of review 55 of revivor 62 of discovery 64 cross-bills 72 specific performance 74 creditors' bills 85 quia Umet ,.101 BOATS OE VESSELS— provisions of the Code, lien 446 to 448 BOOKS AND PAPEES— production of 68, 154 in possession of complainant, and necessary to answer of de- fendant 133 application must be in writing 155 grounds for production, and how obtained 155 BONDS— clerk to approve 19 ne exeat to sheriff. 163 form — see Appendix. CAVEAT EMPTOE 401 680 MARYLAND CHANCERY PRACTICE. < CHANGING THE NAME— p^oe. Court authorized 408 rule of Circuit Court of Baltimore City 409 form of notice *.410 form of decree 410 CHARITIES 531 CIRCUIT COURT OF BALTIMORE CITY— its jurisdiction 411 powers of the Judge out of Court 411 right to summon a jury 412 rules of practice in — See Appendix. CLERKS OF COURTS— perform duty of register 2 keep the records and proceedings 2 make out and issue process '. 2 duties generally 16 daily attendance at office 16 not to issue blank writ...: 17 receive and preserve papers 17 issue execution to another county without return of nulla bona. 17 enter decree satisfied — when 18 certain decrees to be recorded 18 make and certify copy of record .'.. 19 enter appeal — when 19 approve bonds 19 enter supersedeas 19 pass orders nisi, on accounts of auditor, and on sales under decrees ; 20 issue (Commissions to take testimony 21 where infant is concerned, to issue commission to have guar- dian assigned 21 pass orders of publication 21 not to receive fees until bond given 21 make out accounts in fair hand, and in words at length 21 Court to inspect their records 21 inspection of records, and form of certificate of the Judge 22 when suit brought, clerk enters and issues process 24 INDEX. 681 CLERKS OF GOJJRTQ-OmiHnued p^ob. makes (jopy of bill for defendant 49 COMMISSION TO TAKE TESTIMONY— directed to two persons 231 to one person by consent 231 either of two may execute 231 allowance to commissioners 231 allowance to tteir clerks ,.: 231 allowance to witnesses 231 where witness refuses to answer, mode of proceeding 231 ,: parties and their attorneys — right to be present ....232 answer of infant filed, making no defence, cornmission to issue ; 282 commission may issue to any part of the State 34, 232 case must be at issue » 232 there must be interlocutory decree 232 case must be at issue as to all the defendants 232 notice to be given when testimony to be taken 232 what is a waiver 232 examination by written interrogatories 232 what a witness may refuse to answer ,233 how objection taken 233 competency of witnesses 233 attendance and pay of witnesses .233 commission to take testimony out of the State 233 to take testimony in the State 233 to'perpetuate boundaries 233 to take evidence from other States 233 proof of foreign debts and other instruments 2S 3 proof of domestic accounts » ,.233 public statutes and office copies, &c 234 subscribing witness -234 ■■ commissioner not to admit scandalous matter in taking testi- mony.... 46 COMMISSION EX PAETE— plaintiff must prove his whole case 236 where testimony taken under, against whom admissible 236 not against a party brought in subsequently by amendment.. 235 44 682 MAEYLAND CHANCERY PRACTICE. COMMISSION EX VABH^r-Contmued. P^e^. vide commission to take testimony .% 231 non-residents, vide 256 CONSOLIDATION— authorized by Act of Assembly, at law... 152 no statutory provision in equity .• 152 reason of tbe rule ; 152 to what cases applicable 153 ■ appeal will not lie from order 153 untilafter the termination of the suit 153 same practice in Orphans' Court 153 general rule on this subject 153 CONTEMPT— Courts may punish for 5, 6 may commit as for a contempt for not answering bill 34 when party liable to imprisonment 166, 407 CONTRIBUTION 531 CONVERSION OF REALTY INTO PERSONALTY 199 equitable conversion 505, CORPORATIONS— sue and defend in Courts of Equity 455 jjrovisions of the Code in regard to 455, 456 proceeded against as non-resident 456,457 on return of nulla bona —bill may be filed — against its debtors.458 foreign corporations 459 distringas 459 answer under corporate seal 460 bill need not have their seal 460 effect of answer 460 where suit brought by wrong name— matter in abatement. .. .460 Court may order transfer of stock 461 what contracts may be made by 461 general corporation law , 461 463 forfeiture — scire facias 463 restrained by injunction 463 transportation companies 464 INDEX. 683 OOEPOEATIONS— Cowifiwwerf. p^^^,. manufa(^rers and miners 464 COSTS— in the discretion of the Court. 221 when allowed 221 in bills of interpleader » 221 decrfee against an executor— or representative 222 in commissions of lunacy 222 in cases of trust , 22iJ on creditor's bills * 222 in partition causes 222 on exceptions to answer 131, 222 where plea on demurrer overruled 2'.'3 on amendment 223 cestui que ■me — liable for 223 costs to witnessess, auditors, &c 228 on applications for divorce 223 . costs— generally abide event of thesuit 228 clerk required to make out bill of costs 224 in Court of Appeals 221 COUETS— jarlsdiction of. 1 officers of the Courts 3 Judges may appoint 3 Legislature to fix their compensation ; 3 Judges required to inspect the records 3 Judges required to prescribe by rule of Court, how suits may be dismissed during the recess 5 authorized to make rules and orders for the well governing of their Courts, the officers and suitors '. 5 authorized to inflict fines and forfeitures 5 not exceeding twenty dollars for one offence 5 such fines to go to the State 5 to file opinions 8 decision to be made within two months after argument or . submission 8 no Judge to sit in certain cases 8 where Judge disqualified, cause to be removed 8 684 MARYLAND OHANCEEY PKACTICE. ' COURT OF APPEALS— , page. required to make rules and regulatfons for the prosecSkion of appeals &c., &c 4 CREDITOR'S BILL— filed for the benefit of all 85 may come in before distribution : 85 creditor coming in, placed on equality 85 illustration — "equality is equity" ' 85 bill need not provide for the coming in of other creditors 86 land sold for partition, creditors may come in against the fund 86 who are to be made parties 86 ■ effect of a creditor coining in under a deed of trust 86 proceedings at law stayed 87 when proof of administration dispensed with 87 apparent laches of complainant 87 creditor may come in after auditor's account 87 when claim, adjudicated in Orphans' Court 87 claim reported against by auditor 88 primary liability of personal estate 88 where there is a vendor's lien 88 claim of complainant established by the decree 88, 92 whether conclusively or not?.' 88 decisions on this point 89 parties— unknown or non-resident heirs 89 where heirs or devisees live in different counties 89 sale where persoharassets insufficient 90 insufficiency must be averred in the bill 90 where assets wasted by executor or administrator 90 how allegation of "insufficiency" to be made 91 debt must exist in life time of deceased 91 order o'f priority observed 91 judgment against an executor or administrator 91 • how trustee appointed to make sale 91 nomination by creditors of trustee 91 general rule of appointment. 91 .effect of statute of limitations '... 91 plea enures to the party pleading it ajone 91 how statute pleaded 92 to what time the statute runs 92 . INDEX. 685 CREDITOR'S BILL-Contmued p^«^. who mRy set up the statute 92 creditors attacking a deed for fraud 92 notice to creditors required 92 when sale made on credit— notes given to the creditors 93 land hqld by equitable title 93 proof required of "claims" 93 » rules to be observed , 93 claims not proved to be rejected 94 judgment of a Court of another State 94 creditors become parde^to the cause 94 where claim is joint and several 94 ' where surety is insolvent 94 proof of insolvency 94 partnership creditors 95 their right to.vacate a fraudulent deed 95 respective rights of partnership and individual creditors 95 lien of partners on assets 95 lien of creditors on assets 95 conveyance vacated for fraud 96 not necessary to have a judgment 96 rents and profits liable 97 any person taking them will be liable over to creditors 97 CROSS-BILL— when necessary 72 for purpose of discovery 73 both causes heard together 73 how answer enforced 73 an answer may operate as such 73 used in cases of divorce 74 in regard to cross-bill 74 DE BENE ESSE— bUl for this purpose 54 almost obsolete 54 See "Perpetuate Testimony." DECISION OF THE tlAUSE— to be rendered within two months 179 686 MARYLAND CHANCEKY PEACTICE. DECISION OF THE GATSSE-Omtinued. p^e. opinions to be filed in writing ._, 179 where amendment may be allowed 179 decree in accordance with decision 179 DEOREE- entry of satisfaction by the clerk 18 when to be recorded 18 is the judgment of the Court.' ' 195 is either interlocutory or final 195 distinction between them 195 ■ in personam or in rem 195 Court, decrees according to the allegata... 195 without jurisdiction, decree a nullity 196 Court will make the objection 196 how a decree to be construed 196 must settle the whole controversy 196 bindingon all parties until reversed 197 after enrollment opened by bill of review — vide " Iieview"....191 when considered enrolled 197 enforced by attachment 31, 198 obtained by surprise 198, in passing decree, equities, of parties may be reserved for future decree 198 on a creditor's bUl 199 what is a final decree 200 of a Court of another State 200 jurisdiction open to question 200 force of such a decree 200 bar of limitations on such decree 200 when interlocutory decree to be entered and ex parte commis- sion to issue.... .' 201 when a decree pro amfessomsLj be passed 202 defendant may file answer at any time before final decree 203 bill of discovery filed and defendant fails to answer 203 where party is summoned and fails to appear after attach- ment, &c., a decree pro confesso may pass or commission ex parte may issue 205 where party appears and fails to answer after attachment, &c., decree j>ro confesso or ex parte commission may issue... 205 INDEX. 687 DECEEE— Cbw^iwMcd pro confesso not to pass against an infant or non compos... Zi, 206 when necessity of ex parte commission avoided 206 in rem 207 notice essential r". 207 to have effect of deed — ^when? 207 carried into execution by bill 216 for enforcement of, see JExecvMon, Attachment, Fieri Facias, Sequestration. a lien on lands 208, 451 a lien of leasehold property , 453 DEMUKEER— test of jurisdiction 109 meaning of the term 109 may be to the whole bill or part 109 may be joined with other defences 109 but to distinct parts of the bill 109 where several demur 109 for lapse of time 109 for any defect apparent in the bill 110 must be for matter inserted or omitted ...110 no affidavit necessary 110 set down for healing on motion 110 effect of — avoided by amendment 110 may be withdrawn 110 if sustained. Court may allow amendment 110 where sustained, and no amendment is made, bUl must be dis- . missed 110 if overruled — ^penalty and costs 110 party may appeal 110 want of affidavit to a bill, when necessary — ground for Ill for multifariousness Ill objection taken by the Court Ill a full and complete remedy at law Ill an answer waives objection in some cases Ill admits the truth of plaintiff's case Ill what is a waiver — and when "Ill multifariousness 112 defence — viewed with disfavor 112, 113 688 MARYLAND CHANCERY PRACTICE. DEMURRER— CowimMerf. pagb. to a plea — when not sustained 112 effect of allowing 113 what cases proper for 113 misjoinder of complainants 113 Court mounts up to first error 114 • want of jurisdiction 114 right to plead over 114 to bill of revivor 64 to bill of review 57 DISCLAIMER— what it is ; 107 distinct from an answer 107 generally accompanied by answer 107 the English practice similar -. 107 may be joined with other defence 107 where defendant disclaims generally, is entitled to have bill dismissed , 107 with costs 107 may withdraw — when 107 application made by petition 108 if disputed .' 108 form of. • 108 should be made in express terms 108 DIMINUTION— writ of 362 See Appeals 362 DISCOVERY— bill for, of rare occurrence 64 interrogatories may be exhibited 64 of books and papers 65, 68, 69 no relief prayed for 65 object of the bill 65 defendant uot bound to answer so as to incur punishment or forfeiture 65, 66 usury 65 when obtained only available against the party answering.... 65 INDEX. 689 BISGOYEEY— Continued. Pi™. extent of the right of. 66 what such a bill should aver 66, 67 husband and wife cannot be compelled to answer so as to criminate 67 protection of attorney and client 67 exception in favor of official persons 67 defendant not bound to answer questions of law 67 how defendant must answer 68 what the Code has provided 68 production of books and papers 68, 69 consequences of non-production 69 proceedings against a defendant failing to answer a bill of.... 70 principles governing these cases 71 bill may be amended and converted into bill for relief 72 in such cases defendant may. file another answer 72 DIVOECE— jurisdiction in eases of. 370, 371 where cause occurred out of this State 371 evidence by admission not conclusive 371 where bill prays for a vinculo divorce, the fact of the parties having been granted divorce a mensa not to interfere with the jurisdiction 371 residence within the jurisdiction 371 jurisdiction to appear on the face of the bill 371 wife sues vfithont pro-chein ami •••- 371 what necessary to be averred 372 causes for which granted ....372, 378 complainant must be without blame 373 condonation — a defence ■*'* adultery, how proved 3 '5 insanity ^l^ cause for which a divorce a mensa et thoro granted 376 abandonment '" ' cruelty of treatment °'° what not so regarded 379 supplemental bill— how regarded 379 writ of ne ea:m<— when granted 380 divorce a vinculo, effect of upon property of wife 380 45 690 MAEYLAND CHANCJIKY PRACTICE: 1PXY0B,GE— Continued. p^se. Court may decree with regard to the property of wife 380 abandonment and. desertion, nearly ^nonyijious , 381 desertion, what constitutes 381 facts must be proved.......... 381 parties to cause excluded as witnesses 381 cruelty of treatment, cases cited .381, 382 See Alimony. POWER- jurisdiction 465 conveyance by infant — when and how confirmed ...466 allowance in lieu of ., 466 sale clear of, in suits by joint owners ,.-466 consent required in other cases ...467 vend.or's lien has preference over. 467 where not relinquished, to be assigned. 467 how ascertained on partition 467 sale clear of, by consent .: 468 forfeited by bigamy., 468 husband convicted of biganiy, wife entitled to dower 468 how released 468 damages for detention of. 469 to recover at law 469 in lands held by partners, , 469 ante-nuptial contract, effect of 470 devise or bequest, effect of. 471 jointure, effect of 472 expenses and repairs apportioned 473 in equitable estates 473 seisin pf husba,nd 473^ 477 right according to the improved value of the land 475 in rents and profits 476 aliens, right to, when 477 potential 478 ELECTION— where party required, to elect...., 125, 160 application, how made, and order thereon 160 consequences, of. 160 INDEX. 691 ELECTION— CbwCwMed p^^„_ who may elect 16] consequences of refusal where ordered 162 doctrine of election 162 See Partition. EVIDENCE— sources of, in equity 225 Court may call for further proof 225 rules the same in equity as at law ..225 parol evidence to contradict writing 226 in cases of fraud, accident, mistake 226 the bill is evidence for defendant 226 the rule "qui taeet, cum loqui debet consenlire videbUr' not allowed..... ;. ..227 answer under oath when evidence 227 where plaintiff reads the answer 227 answer of one defendant not evidence' against a co-defendant.228 exception to this rule '228 answer evidence, unless replication filed 228 rule as to necessity of two witnesses to overcome answer 228 parties may examine each other as witnesses 229 exception to the rule in case of death or insanity 229 answer only evidence of matters which may be proved by ^aroZ.. 229 rntereHt does not exclude a witness 229 nor crime, except perjury 229 the parties litigant, theit wives or husbands niay give evidehce.2f29 exception to the rule 229 oath or affirmation, how administered 231 Commission to take testimony, vide '....231 proof of foreign debts, &c 233 proof of domestic accounts 233 gubscribing witness, when necessary 234 public statutes and office copies ; 234 race or color, not to exclude 234 decree of a Court of another State as evidence 234, 235 is a debt of record 285 taken under an ex parte commission — against whom admissible 235, 286 ihoral turpitude ••■ 67 692 MARYLAND CHANCERY PRACTICE. EVIDENCE — Gorainued. paob See Discovery - "5 EXECUTORS AND ADMINISTRATORS- when they may be sued 26 in wtat cases tkey may sue or be sued 40 See Revivor 62 See Costs, 222 See Injunction •. 304 EXECUTION— petition for — to be filed 209 habere facias possessionem 209 when it may issue 210 practice in regard to this writ 211 how to be executed 211 executing a decree— powers provided by the Code — attach- ment — sequestration 31, 212 stayed by appeal bond 213 stayed by injunction 213 stayed by supersedeas 214 • stayed by lapse of time 214 to another county 214 fieri facias > 32, 215 against stocks, or debts of a corporation 215 sequestration 216 bills to carry decrees into execution 216 property exempt from execution 216 the bar of limitations 217 See Sdheire Facias Possessionem 210 FIERI FACIAS - See Execution 215 to satisfy decree 32 FORMER SUIT DEPENDING— plea of 125 Court examines and decides the question 125 pendency of suit at common law 125 complainant required to elect 125 INDEX. 693 FOEMER SUIT DEPENDING— ConiiriMerf. paos. mortgages an exception 125 suit pending in another Court of Equity, for same cause 125 of action, to whicli defendant has appeared 125 suit pending in another State 125 Court which first assumes jurisdiction 125 the defence is in abatement , 126 FRAUD— to vacate a fraudulent conveyance not necessary for creditor to have a judgment 96 fraudulent grantee laay plead the statute of limitations in bar .'.. 96 when the statute begins to run in cases of 97 vitiates every thing 97 See Statute of Frauds 519 ' FRAUDS, STATUTE OF— See Statute of Frauds 519 •HABERE FACIAS POSSESSIONEM 209 vide, execution 210, 211 purchaser at mortgage sale 425 See Appendix 657, 658, 659 HUSBAND AND "WIFE— their rights and obligations 511 wife's property protected from husband's debts 511 provision in Constitution and Code 511 her property to be for her separate use 512 no trustee required 512 may sue by her next friend 512 the f&me covert, atrader 513 receipt by wife for money 513 may convey her property — how 514 suit by husband after wife's death 3- 514 treated in equity as distinct' persons M 514 right of wife to make a will 514 when treated as a feme sole 515 power over her separate estate 515 694 MARYLAND 0SANC£RY PRACTICE. HUSBAND AND WIFE Contmued. t^oj.. husband deprived of marital rights in hef property — when... 5X5 she may sue in law or -equity — how 515 she may be proceeded against at law by attachment 516 her rights in regard to ehoaes in actioh 517 estoppel — doctrine of, applied to her -. 517 her rights as tenant for years, under the Act of 1867 518 feme covert — how affected by the statute of limitations 528 See Answer 141 See Parties 37 ILLEGITIMATE CHILDREN— -^ from whom they inherit > 498 IMPERTINENCE— will be expunged ". 44 what it is 45 objection, when to be taken 45 in the answer before replication '. 45 the question decided by the Court • 45 what is the best test '.. 45 whatever is scandalous is impertinent.. 45 See Scandal 44 INFANTS— jurisdiction in regard to 237 Code in regard to their estates .-237, 238, 289, 240, 241 how they sue and defend 37, 243, 2'46 commission to take answer 243 real estate not to be diminished fexcept by authority of Equity Court and the Orphans' Court ; ; 243 where their estate is mortgaged or enctlnibei'ed, a Sale may be ordered 243 where their estate- is bound by contract 243 iii case of specific performance, right of review 80, 244 may sA^the realty to save the personalty 244 proviJ» where party entitled to elect in ease of partition is an infant 244 non-resident ....; •. .' 244 and -infants non-resident 246 INDEX. 695 I'NFA'NTS— Continued. Pagb. infancy material and must be proved 247 when not obliged to answer 247 piaintenance and education 247 party entering on estate of infant — how considered 248 piay file bill for partition 249 jurisdiction extended to estates for life or years, in remain- der, vested or contingent 249 ^eed to bar dower may be confirmed 250 answer of. , 250 when answer filed, commission to take testimony may issue... '250 when depositions are taken as proof in cases where infants are concerned, Oolirt to appoint guardian .-.." 251 source of jurisdiction over 251 custody of , 252 rude — interest of infant to be consulted 252 jurisdiction over infants and their estates^— cases referred to... 252 marriage of infants who are wards of the Court 253 deeds and contracts of-^how treated in equity 253 relation'of guardian and ward, and rights of the infant 253 all material allegations to be proved in cases where infants. are parties .....254 when infancy ceases? 254 mortgage by feme covert infant— when void? 254 non-resident infant — see " Non-reddents " 257 INJUNCTION - character of the writ 298 prayer for, included in the prayer for process 298 requisites to granting 299 usual to require Dond to be given .-...299 how dissolved :300 when motion to dismiss made 300 whei^writ refused — remedy by appeal 301 operates from the date of service 301 generally granted to prohibit action 301 not to undo what has been done... 302 exception in case of levy on personalty • 302 hearing on bill and answer 303 «8iendment— effect of... - 303 696 MARYLAND CHANCERY PRACTICE. INJUNCTION— Conimwetf. "p^^,. what necessary to dissolution 303 affidavit to bill necessary 303 case of trespass — injury not irremediable 304 irreparable damage — how alleged 304 to stay proceedings at law 304 penalty of bond to be prescribed 304 case of executor or administrator ...304 when Court will interfere to arrest proceedings at law 305 effect of 306 to stay waste.- 306 law in regard to waste 307 right of mortgagee in regard to waste 419, 421 protection to manufacturer — trade ijiark 308 nuisance — public and private 308 obstruction of water-courses .'308 to stay sale of mortgaged premises 809 irreparable injury— cases cited 309 restraining proceedings at law — cases bited 309 motion to dissolve 310 early day allowed 310 ^ force of answer by corporation .310 either side allowed to take testimony 310 may be taken by consent 310 effect of answer at the hearing 310 exceptions may be filed to answer 311 motion to dismiss may be entered on the docket in Circuit Court Baltimore City 311 motion to be filed in writing 311 order thereon 311 plea of limitations not available 311 where the defence of limitations appears on the face of the bill 311 the order is on plaintiff to "show cause" .....312 plaintiff must sustain the writ 312 when this motion cannot be made 312 answer must be sworn to 313 whether all the answers must be in 313 how the Court may dispose of the injunction under this motion 3I3 INDEX. 697 INJUNCTION— Cbw^nwcrf. p^ok. where answer filed before writ ordered whether Court can order commission to take testimony in aid of application... 3 14 See Chapter on Appeals chap. XXIX. See Mortgage 424, 425 INSPECTION OF RECORDS— Judges required to inspect 3 law in relation thereto 22 form of Judge's certificate •. 22 INTERPLEADER— in what cases exhibited 50, 51 must be verified by affidavit 51 must be no collusion 51 may ask for injunction 51 where allegations not denied decree is passed, and complain- ant retires from the cause 51 his costs usually allowed 50, 51 if controverted, the facts averred in the bill must be proved, 51 where complainant has an interest in the matter in dispute... 51 when it should be filed 51 where there are non-residents 51 where parti^ dead or unknown 52 INTERLOCUTORY PROCEEDINGS 148 vide security for costs 151 consolidation 152 removal of the cause 154 production of books and papers ..154 payment of money into Court 157 rule further proceedings 158 election — doctrine of. 160 ne exeat regno 163 issue sent to a jury 167 INTEREST— legal rate in this State 506 calculated by Rowlett's tables 506 46 698 MAEYLAND CHANCERY PRACTICE. INIEB.'EST!— Continued. ' Pagi where payment of debt prevented by injunction — interest ceases ' - "^^ compound interest not illegal 509 interest not allowed oninterest 509 purchaser pays, from day of sale 509 mode of stating accounts in equity differs from the mercantile, 509 included in a decree does not continue to bear interest.. ..,.....f>W the Article in Code applicable to judgments, not applicable to decrees in equity... 510 See Usury : 506 INTERLOCUTORY DECREE— maybe taken — when? , '. -30, 31 appearance before final degree 31 provisions of the Code 201, 203 See Decree »••' 1^5 INTERROGATORIES— to bill of discovery ...203 parties may exhibit to each other 234 except in cases for divorce 234 case of non-resident 263 annexed to the bill ^. — 48 ISSUE OF FACT SENT TO A JURY— equity Judge can require a jury to determine facts 167 verdict not generally conclusive ,. 167 where title to land is disputed 167 case of " devisavit vel non" 168 Court settles form of the order directing issues to be sent 168 new trial inay be granted , 169 exceptions may be taken 16'.) who ought to be plaintiff. 169 law in relation to issues 170 See Circuit Court Baltimore City 412 JOINTURE— dower barred by .„479 provision of Code in regard to 479 INDEX. 699 JOmTTJRE— Continued p^^^_ essential requisites of 480 equitable jointure 481 ante-nuptial contract 481 not a jointure 481 adultery, not a forfeiture of 481 JURISDICTION - vested in th^ Circuit Courts 1 the Circuit Courts exercise all the jurisdiction which was exercised by the Court of Chancery 1 twenty dollars exclusive of costs 2 of Superior Court of Baltimore City taken away by new Con- stitution 2 governed by the principles of the English Courts of Chancery, 6 where original, not ousted by Court of law exercising a like jurisdiction 7 Court first exercising jurisdiction retains it 7 this rule not without exception 7 vide specific performance 74 infants • ..237 non.compos 266 divorce ...365 alimony 382 dower 465 lien 488 injunction ....298 Md. Chan. Prac, jjossiwi. LIEN— vide vendor's lien 438 mechanics' lien • 443 machines — lien on 445 boats or vessels 446 lien generally 451 LIEN, GENERALLY— on personalty by levy of execution 451 ' equitable estate in personalty 451 equitable lien on a fund 4ol 700 MARYLAND CHANCEEY PRACTICE. LIEN, GENERALLY— OmimMerf. Page. of judgment not lost, because stayed by injunction 451 what creates lien of judgment 451 rent not a lien per se .'. 452 wiere party has lien on two parcels of land, rights of a junior lien 452 exception to the rule 452 party holding lien cannot prevent a subsequent lien from being enforced 452 of the State by commencement of suit 452, 454 decree a lien on land 452 equitable liens 453 defined '. 453 right of substitution 453 taxes a lien 454 of partners on assets 95 of creditors '. 95 . LIMITATIONS— same rule in equity as at law 522 provisions of'the Code .' 522, 523, 524 defence taken by pleading 525 plea need not be verifiedby oath 127, 525 sometimes accompanied by answer 525 no special form of pleading required 127, 526 if objection appears on the face of the bill, defence may be taken by demurrer 526 not available on motion to dissolve an injunction. 526 does not run against a creditor, who is likewise executor or administrator..... 526 time calculated until claim filed 526 enures solely to the benefit of the party making the plea 526 may be taken to a claim after the auditor's report 526 will not afifect claims subsequently filed 526 to a foreign judgment. 527 judgment of a Court of a sister State, or Qf the United States 527 in case of fraud or mistake .527 when mortgage is barred 527 how liens are barred 527 INDEX. 701 LIMITATIONS -Om^mitet?. p^^^ widow's dower 527 trusts, how affected by 527, 528 person in esse competent to sue 528 saving in favor of infant, feme covert, &c 528 feme covert, rule in regard to 528 kx fori 529 acknowledgment by partner after dissolution 529 acknowledgment on Sunday 529 a defence in equity — cases cited 5-^9 LIS PENDENS .' 532 LACHES AND LAPSE OF TIME— See Limitations 522 MACHINES. LIEN ON— provisions of the Code 445 to what machines applicable 446 MAINTENANCE— wife liying apart 390 wife ill-treated or abandoned 390 fjcfe marriage, divorce, alimony Chap XXX. MAERIAGE— a civil contract 365 fraud, duress, impotence, effect of 365 force, error, effect of. 366 when validity of, may be inquired into 366 proof of 366 what marriages void 366 how to be celebrated 366 license required 367 age of parties 368 consent of parents 368 void and voidable marriages 368 procured by terror, abduction or fraud, effect of 368 of negroes 368 of white with colored persons forbidden 369 702 MARYLAND CHANCERY PRACTICE. MARRIAGE — Continued. paob. adultery punished 369 bigamy punished S69 marrying unlawfully •* 370 fitaud on marital rights 370 conditions in restraint of marriage.. 370 See Divorce 370 See Ali/mony 382 See Maintenance , 389 See Hu&hand and Wife 511 MARSHALING ASSETS— never made ex officio 98 at the instance of one creditor against another. 98 equitable assets not recognized in a Court of Law 98 where creditor has two funds to which he may resort 98 rule for payment of debts 98 'legacies, specific and general 98 lands devised or descended '. .' 98 personal estate primarily liable 99 where charge on the realty 99 when contribution enforced 99 when party not allowed to elect 99 between creditors 99 between creditors and legatees 99 paraphernalia 99 charities 100 marshaling securities^ 100 assets •■ 100 between creditors of the same person 100 between- creditors of differen-t persons 100 in favor of sureties:...; 100 in favor of purchasers 100 in favor of legatees and devisees 100 as against creditors in default 100 by actual restraint or subrogation 100 Maryland cases 100 where mortgage exhausts personal assets. 100 where vendor's lien exhausts ; 100 rules observed by an administrator 100 INDEX. 703 MAKSHALING ABBETS- Contmued. ' p^o^. liens have preference according to priority of date 101 rules observed where equity has control of personalty and realty 101 MECHANICS' LIEN— jurisdiction to enforce '. 443 what counties excepted 444 how bill should be framed 444 where property is perishable ...444 limitation — five years 449 MISCELLANEOUS— Act of 1868, ch. 273 530 jurisdiction in regard to legacies 581 apportioijment 531 charities.... 531 •contribution 531 lis pendens 532 •Shelley's case • 532 settled 532 more or less 532 notice 532 Act of 1868, ch. 348 532 Act of 1868, ch. 325 533 22d sec. Art IV. of Constitution 534 MODES OF DEFENCE— selection of — v-ery important 103 may file a dilatory plea 103 those which are dilatory 103 those which go to the merits 104 to the jurisdiction 104 to the person 104 to the form of the proceedings 104 pendency of another suit for the same matter 104 how permanent defences divided .....104 that Defendant' has no interest 105 - no privity between^ Plaintifi" and Defendant , 105 704 MARYLAND CHANCERY PRACTICE. ' MODES OF DEFENCE— Oontinued. pabe. right determined by act of the parties 105 by demurrer 105 by plea 105 by answer 105 by disclaimer ■ 105 how defences may be joined ..'...,. 106 by answer the most advisable 106 by plea or demurrer always regarded with disfavor 106 proper in some cases to save delay and expense 106 MORE OR LESS— in sale of land 532 MORTGAGE- how regarded in equity 413 mortgagee entitled to pjoasession 413 entitled to rents and profits ." 414 what will constitute a mortgage 414 may be made to secure future loans 414 assignment of the debt — consequence of 415 remedies open to mortgagee 415 payable out of personal assets. 415 limitation on above rule 416 how distinguished from a conditional sale .416 parol evidence admissible to show character of deed — when? 416 barred by lapse of time 417, 420 mortgagee may purchase at sale 418 when payable, where no time specified 418 payable by instalments, when forfeited? 418 mortgagee may insure 418 must be made lenafde 418 mortgagee may obtain injunction to prevent waste 419 a parol contract for a mortgage enforced — when? 419 mortgage by husband and wife of property owned by them jointly '. 419 mortgage of wife's property 419 irredeemable— agreement to make, not binding 420 bills to redeem — pledge 420. -jurisdiction of the Court 420 . INDEX. 705 MOKTGAGE— Cowi!mMe(f. , p^^, sale to be made, in county or city, where tte land lies... 420, 424 where land lies in more than one county 420, 424 terms of sale — when for cash? 420 no notice required under ex parte decree for sale 421 right to have receiver appointed 421 defeasance — effect of 421 must be recorded with a deed 421 extent of lien of mortgage ^ 421 lien for purchase money a preference where mortgage given — over previous judgment 422 taxes and public dues— covenant for 422 bond to be given before sale 422 notice of sale — time, place, terms 423 sale to be reported»and confirmed ,..423 a re-sale may be ordered 423 when confirmed —title to pass % 423 any party may claim, proceeds of sale ...423 title vested when vendor and vendee are the same person 424 mortgagee right to purchase at sale 424 no injunction to issue unless in favor of a party to the deed, &c 424 purchaser entitled to writ of possession 425 rights between purchaser and tenant 425 mortgage devolves on executor or administrator .426 release to be given by executor or administrator — when? 426 terms of sale — under Baltimore City law 426 terms of sale under general.law 426 terms under decree inter partes .' 426 case referred to auditor to state amount of the debt 426 validity of sale — when excepted to 427 mortgages in City of Baltimore 427 mode of proceeding to sell 428, 429 provisions of the Code 427 to 431 building associations 431 rule with regard to commissions when sale made by mort- gagee 433 aliens as mortgagees 433 ■ land of infant or rum compos bound by 433 priority of mortgage— recording 434, 436 47 706 MAEYLAND CHANCERY PRACTICE. MORTGAGE— Continued. pao*. requisite — of Code. 434 how exparte decree obtained 434 an appeal will lie 434 the registry acts 434 effect of notice " 435 mortgage taxes 436 tacking 437 MOTION TO DISSOLVE INJUNCTION— See Injunction 310 MULTIFARIOUSNESS— defence good on demurrer 39, 112 defined 112 no general, inflexible rule 112 waiver 112 Court may mate the objection '. Ill when a bill is multifarious 113 NE EXEAT REGNO— modified by existing law, of non imprisonment? for debt 163 requisition of the writ 163 when to be prayed for 163 form of prayer 163 bond to the sheriff. .163 committal to jail 164 in the nature of bail 164 decision in Bly'scase 164 alimony pendente lite 165 the subject considered 166 bond — condition of. 657 writ -form of. 660 See Divorce 380 NON COMPOS— no attachment to issue against 35 how answer enforced 35 how he sues and defends 37 decree for specific performance.'. ■. 80 INDEX. 707 NON GOUFOS—Omtinued. p^^.. provision of the Code 80 right of review 81 jurisdiction in regard to 266 how persons declared such 266 awarding a commission of lunacy 267 writ executed by sheriff .' 268 how executed 268 the inquisition — requisites 269 grounds for quashing 269 who may move to quash 270 how commission may issue 271 verdict of the jury not conclusive 271 finding of the jury may be traversed 272 Court may send issues to try the question of lunacy 273 committee or trustee appointed 273 required to give bond 274 trustee takes possession of the estate 275 may send lunatic to the hospital 275 in cases of partition 276 trustee to act under order of the Court in regard to repairs and expenses 277 sale of estate of non compos on application of creditor 277 their estate may be leased 278 Court has entire control over their estates 278 sanction of the Court required to sale or other disposition of their property 278 mode of proceeding 279 trustee or committee allowed compensation 283 accounts sent to auditor 283 commission of lunacy may be annulled 284 commission ceases by death of lunatic 284, 293 estate not administered by the Equity Court 285 the estate passes to the executor,. administrator or heirs at law 285,294 persons quasi non compos 286 non compos as a witness ■^86 how suits brought where persons non compos are parties 286 entitled to elect, under the Act in regard to descents 287 non-resident— notice by publication 287 708 MARYLAND CHANCERY PRACTICE. NON GOWPOS— Continued. p^ob. test of state of mind i 287 wto is not to be so regarded 287 property of, liable to mortgage or lien 288 jurisdiction of Court to sell or- dispose of. , 288 where bound by contract i 288 may sell tbe real to save the personal 288 costs and counsel fees allowed in commissions of lunacy 288, 294 what fees allowed 288 what not allowed 289 title to lunatic's property passes under a judicial sale 289 continuing insanity when not presumed 289 deed of lunatic is voidable 289 appointment of committee for lunatic not the subject of ap- peal.... 289 appointed on recommendation of parties 289 power of the Court over the lunatic and his contracts and estate 290 rule that a party may not stultify himself. 291 "non compos wienfo's"— meaning of. 291 partnership dissolved by , 292 rule in selecting committee 293 persons of weak mind protected against fraud 295 acts not void, but voidable 296 paupers ,297 charged with crime 297 drunkards 297 NON-RESIDENTS— notice by publication 255 after publication bill may be taken pro corifesso or commission may issue ex parte 255 may appear and answer at any time before final decree 256 commission required to lie 30 days 256 joined in suits with others 256 infants non-resident — how answers obtained 257 infant secreted — to be ti'eated as 258 notice by publication 258 infant or non compos have privilege of review 259 INDEX. 709 NON-RESIDENTS— CoMiinMed. p^b^. when a party may be treated as 259 corporation 261 interpleader 51, 261 parties unknown— whetlier living or dead 261 unknown with respect to having left heirs, or if heirs un- known 262 notice by publication 262 clerk may issue order of publication 263 required to give security for costs * 263 entitled to elect under ihe Act to direct descents 268 required to answer interrogatories 268 non-residence — how proved 264 notice of publication — how proved 264 order to be published as the law requires 264 right of review 265 corporation — ^treated as 456, 457 NOTICE— actual and constructive 532 NUISANCE— jurisdiction and remedy by injunction 308 OATH OE AFFIRMATION 230 how administered 281 oath of attorney 11 to answer 135 See Affidavit. OFFICERS OF THE COURT— auditor chap. XXVIII. bailiffs 2 commissioners 2 clerk chap. III. sheriff. 3 solicitor— OTC?e Attorney chap. 11. OPINIONS— to be filed where decree or order is passed after argument 8 710 MARYLAND OHANOERY PRACTICE. PARTIES— Page. who are necessary parties 36 all persons having a legal or beneficial interest 36 case of husband and wife 37 no one a party against whom no process is prayed 37 non compos — ,.... 37 infant.. 37 nominal party — when dispensed with ? 38 parties alone bound by the decree 38 executor or administrator 38 incumbrances 38 trustee of insolvent debtor 38 to a creditor's bill 39 bill for specific performance 39 to a bill of review 39 bill filed for contribution : 39 • cestui que trusts 39 party sued who has no interest 39 objection of multifariousness 39 how taken. 39 parties brought in or come in by petition 39 when new parties must be supplied 40 death or marriage 40 insolvency or other cause 40 new parties made by amendment 41 new pleadings and proof not required except in certain cases 41 to be made by petition.. 41 character of such petition 41 subject of "Parties" belongs to works on pleading ; 42 party only liable in the character in which he is sued 49 to a bill of review 59 to a bill of revivor 62 to a bill foj: specific performance 80 to a creditor's bill 86 unknown or non-resident heirs 89 when heirs or devisees live in different counties 89 PARTITION— provision of the Code ......483 applies to all kinds of estates ..484 INDEX. 711 PARTITION - Continued. ,,^a^, not necessary that a sale should be advantageous to the par- ties 484 . applicable to infants, non-residents, and persons non compos. A^A. necessary parties to the bill .^ 484 complainant must allege and prove title 484 decree — how obtained 485 trustee appointed to make sale 485 in cases of sale, creditors of deceased person may come against the fund 485 conditional order passed 486 the practice of allowing creditors to come in by partition condemned ". 486 under law of descents 486 . proceedings may be ex parte 486, 489, 493 •provisions of the Code recited 487 sales by commissioners 487 distribution by lot 488 notice to be given, and appear by return of commissioners.... 488 action of commissioners not conclusive on the Court ...488 not lightly disturbed 488 election — right of. 488 commissioners to make a deed 488 rights of purchaser when considered .'. 489 advancement 489 party entitled to hold in severalty..' 490 widow's dower to be laid off 490, 491 right of election passes to assignee 492 / payment required to vest title 492 what bill or petition should state in case for partition.... 488, 494 commissioners' return 494, 495 of the right to rents and profits 496 exceptions to return of commissioners 497 decree in case of election 497 in these cases illegitimate children and their issue inherit from the mother and each other 498 PAYMENT— plea of. 128 712 MARYLAND CHANCERY PRACTICE. PAYMENT OF MONEY INTO COURT— ■ p^„. when ordered 157 invested by order of the Court 158 notice to be given before final order IftS vide Sales 399 PERPETUATE TESTIMONY— bill for this purpose 52 object and what it should state 52 should show the necessity 53 defendant may deny the averments 53 bill should not pray for relief. , 53 commission to perpetuate testimony 53 provisions of the Code 53 should be verified by affidavit 53 deposition of witnesses who are sick or about to leave the State 54 whether suit pending or not 54 the use and availability of such suits 54 the decretal order in such cases 54 PLEAS— general rules in regard to ...115 when required to be on oath 116 objection- how taken if not on oath 117 setting down for hearing....: 117 sufficiency in law when admitted 117 replication admits validity 117 all the allegations must be proved 117 allowed or overruled by the Court 117 defendant may insist on iis plea '. 118 issue of fact presented by.. \iQ bill dismissed if plea sustained 118 if overruled, costs to be paid 118 may be bad in part hq may be amended iiq general nature and form of. hq while pending, no exception allowed to an answer 118 to be disposed of before motion for an injunction can be made '. jjq INDEX. 713 PLEAS — Continued p^qp_ must aver facts, to which complainant may reply 119 effect of order saving it till hearing 119 when it must be supported by answer 119 defence of usury taken by 119 should not be argumentative 119 of privilege 119 of infancy 119 . to the jurisdiction 120 must show another jurisdiction 120 that defendant is sued out of his county 120 after plea in abatement, there may be plea in bar 120 where there is irregularity on the face of a supplemental bill. 120 coverture of the plaintiff. 121 coverture of the defendant 121 bankruptcy 121 want of interest in defendant 121 to the person is a traverse 121 in bar you never traverse 121 in bar is collateral to the bill 121 what its force and effect 121 a release 121 where fraud or surprise charged 121 ' must be supported by answer 121 a stated account 122 an award 122 that defendant is a purchaser for a valuable consideration without notice 123 want of proper parties., 124 statute of frauds 124 a former suit depending 125 a former recovery 126 tender 127 limitations 12' setoff. ., 128 payment 128 usury 11^1 127 PKIVILEGE— process served on a person privileged 29 48 714 MAEYLAND CHANCERY PRACTICE. PRIVILEGE— Cbntrnwerf. Paq,. meaning defined 29 . members of Congress , , 29, decision in the Butler case .., 29 waiver of ,....,,., 29 plea of , 119 how claimed 119 PRO CONFESSO— when decree may be taken , 30, 31, 32, 83, 34 after examination of complainant ,.., ,.. 33 when discm'ery is sought 3^, 70 not to pass against an infant or mow cowip'bs...,^ '.,..., 34 See Bill of Review 60 PROCESS— issuing, serving and returning .21-30 against a corporation • 25 party cannot be sued out of the county of his residence....... ,25 unless after a return of "non est" ., 25 improperly sued, discharged on motion 25 where defendants reside in different counties 2/0 wherever the land lies — ^jurisdiction over ,26 vhere defendants are non-residents .,...., '. 26 executor or administrator— where tp be sued., 26 £^11 process to be directed to sheriff. .'.., 26 unless he is disquailified, , 26 rnust be served by return day 26 against an infant, secreted 27 two returns of "non est" 27 one return of non est, and proof that defendant has kept ojjt of the way _ _ 27 vfhen summoned, appearance enforced by attachment 27 hpw sent to adjoining county 21 Court may issue to any part of the State 27 against husband and wife '. 28 agajnst corporations , 28 where resisted 28 where there is question of privilege 29 INDEX. - 715 PEODUOTION OF BOOKS AND PAPERS— p^aE. vide books and papers 68, 133, 154, 155 discovery 68 PROFESSIONAL COMMUNICATIONS— privileged 13, 67 how far privileged 67 how question brought before the Court 14, 233 See "Midence"..; 233 PURCHASER— for a valuable consideration without notice 123 a good plea in bar 123 requires an answer on oath 123 denial of notice limited l'-3 applicable to all kinds of real estate, leasehold as well as fee-simple 123 character of the- plea 123 necessary averments 123 seisin and possession of his vendor 124 QUIA TIMET— bill when filed 101 a writ of prevention ■ 102 relief by appointment of a receiver 102 inj-unction a mode of relief. <...102 interposing to prevent waste ■ 102 future right to personal property — protection afibrded from danger or loss 102 general doctrine and principles.. 102 vide Waste. RECEIVERS— under what circumstances appointed 315 order nisi in some cases 315 on filing answer defendant may appeal 316 how recommended and appointed 316 required to give bond .■• ®16 bond may be approved by the clerk 316 takes possession of all the efiiects, displacing th« defendant, partners, &c ' 316 716 MARYLAND CHANCERY PRACTICE. RECEIVERS- Cbwimwec?. Pao, if possession refused, may obtain order, if necessary, enforced by attacbment .-. ■ 316 when property beyond jurisdiction of the Court 316 appointment determines no right 316 or title to property 316 against a party holding the legal title 316 disagreement a,mong partners 316 where partnership has been dissolved 316 insolvency, fraud, misconduct of partner 319 doctrine where partners are concerned 319 previous notice — when given 319 rents and profits of real estate 319 case of imminent danger of loss 319 where partnership dissolved by death, and survivor misapplies - the funds i.319 right of mortgagee to have a receiver 320 law with regard to mortgagee 320 until receiver takes actual possession, property not under the Court's protection, and liable to execution 321 object of appointing 321 allowed expenses and compensation 321 • should apply to the Court for leave to sue or defend 322 liable to removal at any time 323 under bills "quia timet" 102* ■•from order of removal no appeal 344 from order appointing - appeal given 342 A FORMER RECOVERY— plea of— m bar 126 decided by the record .' 126 where former decree is impeached 136 fraud or collusion alleged 126 re-hearing of the cause— a'pplication for, by petition 180 may be made during the term 180 must state good reasons 180 whole case may be opened 180 in Court of Appeals. 364 INDEX. 717 BELEASE— plea of— in bar 121 where fraud or surprise charged 121 answer to accompaay plea 121 REMOVAL OF THE CAUSE— no authority for in equity 154 cases of issues an exception 154 Judge disqualified to sit 8 RENTS AND PHOFIT^— liable to creditors for debts of deceased 97 receiver may be appointed 97 infant heir, made to account 97 right of mortgagee to take 414 rent not a lien without levy 452 alien in Orphans' Court against administrator. 333 See "Bower" 476 REPLICATION— its object and efi'ect 148 general and special 143 what it puts in issue 144 to a plea — efi'ect of. 144 omission to file 144 after cause set down for hearing without replication 144: how it is pleaded 144 to answer— a waiver to matters of form 144 when leave to file necessary ._. 144 RESULTING TRUST 402 REVIEW— object of the bill 55 doctrine of enrollment 55 for error in law 55 new matter arisen after decree 55 new evidence after decree 55 to be filed within nine months 55, 57 case of fraud or surprise 56 718 MARYLAND CHANCERY PRACTICE. REVIEW— Continued. Pasb, provision of the Code in favor of infants 56 allowed non resident infant or non compos 56 may be filed after affirmance in Court of Appeals — when ? 56, 59 for error of law, considered 56 no previous application to the Court necessary 56 all the pleadings in the case may be examined for error 56 defendant may plead or demur to the bill 57 if demurrer sustained, bill is dismissed 57 error in form, or matter in abatement, not sufficient to sus- tain bill of 57 newly discovered facts 58 leave of the Court required, on affidavit 58 application to be made by petition .• 58 on petition. Court passes order nisi 58 defendant raises the issue by answer 58 what may be relied on as a defence 58 execution of the decree not necessarily stayed 58 in the discretion of the Court 58 necessary,^ parties 59 when it lies after enrollment 59 for what causes it will lie 59 against whom it may be filed 59 -^ may also apply for injunction 60 where fraud is alleged 60 supplemental bill in the nature of a 60 bill of review: its character defined 60, 61 laches defeats the relief 61 law and practice in such cases...., 61 where purchaser seeks relief after final ratification 61 general doctrine in regard to ■ 61 right of infants to review in decrees for specific performance.. 80 non-residents, infants or persons non compos entitled to reyiew 81 provision of the Code 81 when bill filed — ^its purpose 62 marriage or insolvency of party 62 parties to the suit 62 after revival what testimony admissible 62 INDEX. 719 BEYIE^— Continued. p^^^ same relief afforded representatives to which original party- entitled , ,...,, _• 62 suit revived tq recover costs 63 subpoena scire facias the proper proceeding to revive 63, 194 Code provides remedy by "suggestion" 63 when a defendant dies 63 when complainant dies 61 defence taken hy plea or demurrer 64 replication to plea 64 . provisions of the Code 64 what the bill should aver , 187 filed by plaintiff or his representative 188 right of defendant when plaintiff fails to revive 188 mode of proceeding in such case 188 necessary parties 188 incase of creditors' bill 189 See Abatement and Hevivor chap. XVII See Non-residents 260 RULE FURTHER PROCEEDINGS— what it requires of plaintiff. ,...158 how it may be avoided 158 when it cannot be laid , 159 where there are .several defendants 159 where the bill is for "discovery" — Circuit Court Baltimore City — see rules cited , 150 SALES— Court to prescribe terms of sale 391 where required by law to be for cash 391 bonds to be assigned to creditor i 391 to foreclose mortgage 391 a day to be given to mortgagor 391 mortgage sales to be made in the city or county where lands lie 392 default by purchaser 392 re-sale at his risk 393 remedy enforced by attachment 393 when ordered before final decree 393 720 MARYLAND CHANCERY PRACTICE. SALES — Continued. Paob. of personal property 394 to what cases applicable 394 to enforce. vendor's or other lien.... 394 insufficiency of personal assets to pay debts of the deceased.. 395 may decree — sale of vessels 395 personal property held jointly 395 any estate for life, or years, or in remainder, vested or con- tingent, or other contingent interest 5-30 where ordered of any reversion, to which rent is incident, rent in arrear to be included... 396 of land held by equitabfe title 396 trustee appointed to make 396 trustee to give bond 397 practice in regard to postponed sales ....397. 398 advertisement of the property-r-what it must contain ...397, 402 proceedings, by trustee 398 if exceptions are filed 398 trustee may be ordered to bring the money or notes into Court 399 proceeds distributed by auditor 399 trustee appointed by will to make 400 by sherift's. and constables 400 notice to creditors when requiring 400 liens allowed their priority in the distribution.... 401 " more or less" — meaning of 4.01 trustee not allowed to become purchaser 401 exception to this rule 401 only sells interest of the parties to the suit 401 caveat emptor 401 when a sale will be set, aside 402 case of resulting tru4t 402 the Court is the seller 402 misstatement by trustees — effect of. 403 application of the purchase money 403 where defendant refuses to give up possession 403 defect of title discovered 403 decree limits the property sold, and the deed cannot convey more 404 title vests from day of sale 404 -^^ INDEX. 721 BALES— Omtifiued. . p^„ when trust survives, in case of death of joint trustee 404 See Mortgage 420, 433 Partition 483, 485, 487, 488 Non Compos 277, 279, 280 Infants ..vciap. XXIII. . 3CANDAL— defined 44 1 expunged on motion 44 ohjection to be taken— how .' 45 taken at any stage of the cause, .*. , '.... 45 , what is not regarded as 45 commissioner to exclude in taking testipiony 46 defendant not required to answer matter which is scandalous 46 matter may be impertinent, not scandalous 45 ,, See Impertinence. S^CUEITY FOR COSTS— , petition for , 151 defendant must not be in default 151 what takes away the right to call for 151 application may be made at any time before final decree 151 doqtrine of waiver 151 security entered for all the costs ^...151 insolvency of complainant gives no right to call for ..152 defendant may have solvent pro ami substituted for an insol- vent one .1^2 penalty for not complying when ordered 152 how sufficiency ascertained 152 .. does not extend to Court of Appeals 152 SEQUESTRATION— where discovery essential to relief 35 decree enforced by 31, 34, 35 vide Execution • 2^2,, 216 SETTING DOWN THE CAUSE FOR HEARING— whenever the cause is ready • v'1,76 , where objection made * ....176 49 722. MAEYLAND CHANCERY PEACTICE. SETTING DOWN THE CAUSE, &o.—Contmuecl. paob. mode of setting down the cause 176 how the cause is heard 176 motion to dissolve, and exceptions to answer, heard at same time '. 177 when replication to be filed by leave »177 cause submitted 177 after return of ex parte commission.... 177 where cause is heard on motion to dissolve, it is error to pass final decree 178 where cause is submitted on bill and answer 178 in Oir. Ct. Bait. City — causes heard in regular order on the docket 178 rules of Oir. Ct. Bait. City on this subject 179 SET-OFF— plea of. 128 a good plea in bar 128 when available 128 defence taken in the answer 128 SETTLED— meaning of entry 532 SHELLEY'S CASE— rule in 532 SHERIFF— the executive officer of the Court 3 how sheriff serves all process '. 24 his duty in serving process 26 liable to fine for not returning process 28 when resisted in serving process 28 where disqualified to serve process 26 SPECIAL JUDGES— system abolished 4 SPECIFIC PERFORMANCE— jurisdiction _ 74 INDEX. . 723 SPECIFIC PERFOEMANOE— CbwCi/iwec?. p^^e is not confined to real estate 76, 83 if defendant within the jurisdiction 75 ■provisions of the Code 75 the Court regards substance, not form, in enforcing agree- ments 75, 76 complainant must not, be in default 76 time not always of the essence of the contract 76 where there is a defect of title 76, 77 contract must be mutual ; 77 compensation decreed — when? 77 issue of quantum '7am,hificatus 77 relief granted, where answer shows the complainant entitled, 79 character of the decree 78 requisites to relief. 78 where contract unobjectionable 79 tender of performance 79 character of the agreement 79 reform a contract, and then decree relief in same bill 80 necessary parties - 80 when infant is concerned 80 plea of .statute of frauds 82 part performance, effect of 82 effect of possession 82 not a matter ex debito jusiitice 83 agreement must be fair 83 effect of laches 84 vendor's lien — same remedy 84 compensation when decreed 84 case of Penn vs. Lord Baltimore 84 jurisdiction defined 84 specific performance — quia tim,et 101 STATED ACCOUiNT— plea of. 1^2 must favor a final settlement 122 circumstances of fraud ,. 122 mistakes open to investigation 122 how plea must be framed 122 724 MAKYLAND CHANCERY PRACTICE. STATED AGGOJJBT- Con^nued. P^,. plea to a bill for an account 122 STATUTE OF FRAUDS— defence available by plea' or aiiswer 124 fraiidi or part performance alleged! 124 ffaiid, mistake, surprise — effect of. 124, 521 agreements may be rectified 124 absolute deed treated as mortgage — ^when ? 124 parol evidence to contradict written agreement! 124,' 520 . eulogy on the statute 519 defence to be taken in the pleadings 519 exception to this rule 520 design to preveiit fraud, 520 cases of trust 521 part perforniahce — effect of. 124:, 520, 521 what so considered 521 SUPERIOR COURT— equity jurisdiction taken away ' 2 SUPREME BENCH— appoint oiEcers of the Courts in the'City of ' Baltiidbrer 3 do not review equity causes. 411 For assignment of Judges, see Appendix^ SUPERSEDEAS— decree — how superseded 218 stays execution 218 form of 218 stay computed from date of supersedeas... 219 the lien of a supersedeas decree w 219 appeal from a supersedeas decree 220 original judgment not merged 220 clerks may take supersedeas ..19^ 220 taken before justices of the peace. 218 not invalidated for matter of fotin 219 TACKING— doctrine of, 437 INUEX-; 725' TAXES- • p^„. a lien. ..454 TRADE MAEKS-- protected by injunction 307, 308 TENDER— plea of. 127 readiness to perform sufficient. 127 defence more available in answer 127 TRIAL— plaintiff opens and closes ■. 405 ■when case heard on demurrer 405 where case heard on plea _.....* ; 405 where exceptions filed 406 on motion to dissolve injunction. ..; 406 the- party who seeks the intervention'of the Court 406 the case of Butler 406 issues sent to a Court of Law 406 rule in Court of Appeals; 406 in the case of a cross-bill. s • 407 USURY— provisions of the Code • 506, 507 quo animo — test of usury. ..' 507 defence must' be takeH specially. •■507 Rowlett's tables • 508 excess over illegal interest forfeited 508 general principles 508 vide Interest. 509 VENDOR'S LIEN— bill to enforce, similar to specific performance of a contract... 78 ITQ ;^ requisites the same payment of the purchase money decreed 78 the decree reciprocal when a cross-bill required '° enforcement rests in the discretion of the Court, and not a '70 . matter of right 726 MARYLAND CHANOEEY PRACTICE. • VENDOR'S LIEN— CoTOimMfiif. ' p^e,. character of the agreement which the Court will enforce 79 in same bill mistake established by parol, to refofm the agree- ment, and then a specific performance .• 80 necessary parties 80 where infant or wow compos concerned 80 provision of the Code ". 80 infant entitled to review 81 provision in favor of non-resident 81 infant, or non compos (Code) 81 effect of the statute of frauds 82 jurisdiction to enforce 438 applicable to leasehold property 438, 441 not necessary to exhaust remedy at law 438 how dower and curtesy affected by .439 assignment of lien , '. 439 rule in regard to enforcement of. 439 priority of payment in case of sale 439 how it maybe lost 439 the lien exists prima facie 439 what the bill should state 440, 442 rights of surety to substitution 440 what is a waiver 440, 441 barred by lapse of time 440 extinguishment by sale, and execution on judgment of ven- dor 442 in case of death, lien devolves on his representatives 442 same principles applicable as to cases of specific performance.443 WANT OF PROPER PARTIES— defence available by plea or answer 124 amendment allowed 124 WASTE— equitable waste 307 waste generally 307 injunction to stay 306, 307 vide Quia Timet 102